1989 PLP 1282 (MLD)

SALEEM AKHTAR, J.‑‑The petitioner has challenged the order of respondent No. 1 whereby after consolidation of results in the election to a seat from Ward No.2 for Karachi Cantonment the respondent No. 2 was declared elected. During counting 23 votes were challenged by the petitioner which were separately put in an envelope by the Presiding Officer. Seven votes sought to be cast in favour of the petitioner were also challenged and sealed in the same manner. Likewise three votes sought to be cast in favour of respondent No. 3 were also sealed separately. All these envelopes alongwith the votes cast and ballot papers were sent to the respondent No. 1 as provided by Rule 43, sub rule (5) of the Cantonments (Election and Election Petition) Rules, 1979. At the timc of consolidation of results the respondent No.1 in presence of the petitioner, respondents Nos. 2 and 3 proceeded with counting. He also opened the envelopes containing challenged votes. Consequently 15 challenged votes were declared valid in favour of the respondent No.2, six challenged votes were declared valid in favour of the petitioner and three were declared valid in favour of the respondent No.4. By adding these votes in the votes cast in favour of the candidates the following position emerged: Petitioner 413 votes. Respondent No.2 414 votes. Respondent No.3 75 votes. The respondent No.3 therefore, declared the respondent No.2 as an elected candidate. When this petition was filed challenging the election and the action taken by the respondent No.1 as without lawful authority, the office raised objection relating to the maintainability of the petition. Mr. Khalid M. Ishaq the learned counsel for the petitioner stated that the petitioner has filed an election petition but in spite of that, this constitution petition is maintainable as the relief sought by the petitioner in this petition cannot be obtained by way of election petition. To substantiate his 'contention the‑learned counsel made reference to Rules 43, 44, 45, 46 and

48. These Rules relate to the duties of the Presiding Officer and the Returning Officer as well as the manner in which the votes are to be counted. According to the learned counsel under Rule 48 the decision of the Returning Officer as to the validity of a ballot paper shall be final and therefore, it cannot be challenged in any forum. Rule 48, however, relates to a decision made by the Returning Officer under Rule

47. In the present case no such decision is under consideration. Suffice to say that under Rule 82, an election can be declared as a whole to be void if the result of the election is materially affected due to failure by any person to comply with the Rules. Rule 65 provides that no election shall be called in question except by an election petition presented in accordance with these Rules. Rule 79 proendes that the Inquiry Officer who seems to acts as Election Tribunal on conclusion of trial may dismiss the petition, declare‑the election of the returned candidate to be void and petitioner or any other contesting candidate to have been duly elected or declare the election as a whole to be void. The grounds for declaring such reliefs are mentioned in the subsequent Rules. Where the election of the returned candidate is declared to be void, the Inquiry Officer can pass a further order declaring the petitioner or any other contesting candidate to be elected. Such declaration of being elected cannot be granted ipso facto because the election of a returned candidate has been declared to be void. The contesting candidate or any other candidate can be declared elected only on well‑recognised judicial principles which have by now been well‑settled and we need not feel it relevant to discuss at this stage. Rule .82 provides the grounds on which the election as a whole can be declared to be void. It provides that if the result of the election has been materially affected by (1) failure of any person to comply with the provisions of the Rules or (2) the prevalence of extensive corrupt or illegal practice at the election. In the present case the only ground for challenging the election is that the respondent No. 1 has failed to comply with the provisions of the Rules. According to Mr. Khalid M. Ishaq as this is the only ground for challenging the election it will be open for the petitioner to seek a relief that the election may be declared void as a whole, but he cannot seek a relief that he may be declared elected. The relief of being declared elected is only in the nature of a consequential relief which is granted 'to a petitioner in case the election of a returned candidate is declared‑void. This relief is granted in view of the provisions of Rules 79 and 81.‑The petitioner has not been able to show any other Rules, Regulation, Act or any other law under which he, may claim td have a vested right of being declared as elected. The law provides for such .a relief in certain circumstances. This relief cannot be granted as a. matter of course or in all circumstances. The limit provided under law is that such relief can be granted only if the election of a candidate. is declared void, but it will not be granted if the election as a whole is declared to be void. The distinction between these two situations has been very zealously maintained. The election of a returned candidate may be void because of his nomination being invalid, or disqualification or corrupt or illegal practice committed by him or his election agents. However, the grounds on which the entire election is to be declared 'void are those which affect the purity of election. Therefore, if the Rules do not permit any person to declare elected in certain circumstances, then such candidate cannot claim this relief as a matter of right in all cases where election of a returned candidate is set aside. The election can be challenged in accordance with the provisions of law and as the grounds have been specified under the Rules,, the petitioner has to seek his remedy within the four corners of that law. In these circumstances, if the petitioner is unable to seek a remedy of being declared elected, it does not mean that no remedy is available under law, For these reasons we are of the opinion that this petition is not maintainable, and is dismissed in limine. M.Y.H./M‑713/K Petition dismissed.