1999 PLP 155 (SCMR)

Ch. Muhammad Bashir, A.A. -G. for the Government. Farooq Zaman Qureshi, Advocate Supreme Court with S. Abul Aasim Jaferi, Advocate-on-Record for Respondents/Caveators. Date of hearing: 28th July, 1998 KHALIL-UR-REHMAN KHAN, J.--This petition is directed against order dated 25-5-1998 passed in a Constitution Petition filed by Abdul Waheed Zaman Qureshi, respondent No.9, whereby while admitting the Constitution Petition a direction was issued that notice be issued for 29-5-1998 and in the meanwhile none shall take oath of the HaIqa. Learned Judge took notice of the plea that the writ petitioner/Abdul Waheed Zaman Qureshi/respondent No.9 herein was notified as successful candidate from Ward No. 190, Zaman Park, Lahore, but his name had been denotified on that very day i.e. 25-5-1998 at 12-15 p.m. and that the Election Authority and the Returning Officer/official respondents having declared the result could not change it later on.

2. On the date for which notice was issued i.e. 29-5-1998, respondents Nos.6, 7, 8 and 9 in the writ petition/respondents Nos.5 to 8 herein, who were other candidates who had contested the election, were found not to have been served and as such notice was ordered to be issued to them for 25-6-1998. An application for recalling the interim stay order was moved whereupon, vide order dated 18-6-1998, notice for 25-6-1998 i.e. the date already fixed, was issued. On this date respondent No.5 in the writ petition/the present petitioner was directed to file a written statement within a fortnight and hearing was adjourned for 9-7-1998. The matter of stay, however, appeared not to have been attended to. On 9-7-1998 the matter was adjourned to 18-9-1998 noticing that in paragraph 3 of the application seeking recalling of order of stay it was submitted that the present petitioner was declared as successful candidate by the Punjab Local Councils Election Authority after calling the report from the Returning Officer and notification was issued in this regard subsequent to the order passed by the Punjab Local Councils Election Authority. This order was then ordered to be placed on record and the matter was adjourned for 8-9-1998.

3. As the matter was being adjourned for one reason or the other, the petitioner, Mian Waheed Ahmed, respondent No.5, who was declared successful by the Election Authority vide notification dated 23-5-1998, filed this petition for setting aside of the order of stay whereby direction was issued by the High Court that none was to take oath of the Halqa.

4. We have heard the learned counsel for the parties. Mr. Farooq Zaman Qureshi, learned counsel for the respondent No.9/writ petitioner clarified that the assertions as to late commencement of polling in the Polling Stations 81, 82 and 83 and disturbance caused due to brick-batting and firing on account of which the entire polling staff as well as the voters ran away and eventually no polling could be held in these polling stations have been mentioned as the events which occurred on polling day but relief prayed for in the writ petition is not premised on these assertions as the only assertion that he is pressing in his writ petition is to the effect that Abdul Waheed Zaman Qureshi/writ petitioner/respondent No.5 herein having been notified as returned candidate, such declaration made and notified could not legally be undone by the Punjab Local Councils Election Authority under section 17 of the Punjab Local Councils Ordinance, 1979.

5. The position taken by Mr. Maqbool Elahi Malik, learned counsel for the petitioner with respect to maintainability of the Constitution petition was that the Punjab Local Councils Election Authority was legally competent to interfere in the matter as the respondent No.5/present petitioner was declared elected on account of typographical mistake inasmuch as 400 votes polled in favour of petitioner were not taken into account for the reason that figure '4' was omitted while reporting the number of votes polled. This mistake was admitted in the report submitted by the Assistant Commissioner (Saddar), Lahore dated 25-5-1998 to. the Election Authority. He, however, added that the Constitution Petition filed by the respondent is competent as the controversy, subject-matter of the writ petition cannot be urged as a ground for maintaining an Election Petition under Rule 13 of the Election Petitions Rules, 1990.

6. Learned counsel for the parties, thus, have limited the controversy to the resolution of the question regarding competence or otherwise of the Election Authority to notify the petitioner as successful candidate. This question should appropriately be left to be decided by the learned Judge of the High Court rather than resolving it in these proceedings by this Court. Unfortunately the proceedings before the High Court have been lingering on many dates. Now the writ petition stands adjourned to 18-9-1998, a date after reopening of the Court after summer vacation. The effect of the stay granted to the writ petitioner/respondent No.5 herein, before joining the proceedings by the petitioner is that the constituency is to remain un-represented. It is well settled that ordinarily a constituency should not be allowed to remain un-represented. We. therefore, convert this petition into appeal and dispose of the same with the direction that the Constitution Petition pending before the High Court shall be heard and disposed of within three weeks of the receipt of this order by the High Court and in case the same is not disposed of within the aforesaid period, interim order passed on 25-5-1998 directing that none shall take oath of the Halqa shall stand vacated. H.B.T./W-20/S Order accordingly