P L D 1989 Peshawar 231 (PLP)

5. It transpires that on the conclusion of the hearing; the learned counsel for the respondent No.1 moved an application to the effect that if the Commission comes to the conclusion that election in NA‑16 Mansehra‑111 has not been held in accordance with law in polling station Biari, then in that situation may the Commission be pleased to order fresh election in the entire Constituency. In response to this application and taking 'it for a "concession of the parties" the Election Commission declared the entire election of NA‑16 Mansehra‑III as void as per impugned order, dated 30‑11‑‑1988 and directed to hold fresh election.

6. By this Constitutional petition, the petitioner has called into question the impugned order, dated 30‑11‑1988 passed by respondent No.2.

7. We have heard Mr. M. Sardar Khan learned counsel for the petitioner, Qazi Muhammad Anwar learned counsel for respondent No.1 and Khawaja Nazir Ahmed learned counsel for respondent No.2 at length and also perused the available record with considerable degree of dare.

8. As is evident from the admitting note, it is the provision as embodied in section 103‑AA of the Representation of People Act, 1976 (hereinafter referred to as the Act), which requires to be interpreted in this writ petition qua the ultimate decision of, respondent No.2 in the impugned order. Let it be stated at this very stage that both the learned counsel appearing on behalf of the respondents 1 and 2 have candidly conceded that the Election Commission, under section 103‑AA, while enjoys the power to declare the, poll in any Constituency as void, it is at the same time unquestionably competent to make such declaration in respect of a part of the Constituency, namely in one or, for that matter, more than one polling stations of the whole Constituency. This admission of theirs is not only in conformity with their pleadings but also proceeds on a sound principle that when a Tribunal can decide or decree the maximum‑, it has always the power and competency to grant less and such a decision shall be considered in accord with the provisions of a law bestowing powers on a Tribunal to decide an issue. A decision of the respondent No.2 made on the same day i.e., 30‑11‑1988 in respect of Constituency NA-34 Tribal Area‑VIII, wherein re‑polling was ordered in only one polling station, also lends support .to the proposition. Such being the case, it can safely be said that the‑respondent No.2 had the power and, competency to have declared the election, in so far as polling station Biari was concerned, as void and could have ordered a fresh poll therein.

9. Consequently the scope of controversy, in the instant matter before us, has narrowed down to the question, as contended by the learned counsel for the petitioner, as to whether the Election Commission was justified, in fact as in law, to declare the election in the whole of Constituency as void instead of ordering re‑polling in the polling station Biari alone as prayed for by the petitioner in his complaint and accordingly the impugned order is untenable on account of illegal exercise or in excess of its jurisdiction?

10. Qazi Muhammad Anwar, learned counsel for respondent No.1, however, maintained' that the impugned order 'of respondent No.2 is untenable, not for the reasons as contended on behalf of the petitioner but on the ground that no such inquiry was conducted by the Election Commission as was required of it under section 103‑AA of the Act and consequently respondent No.1, who in unofficial count is the winning candidate, should have been declared as such.

11. The learned counsel for respondent No.2 questioned the competency of the writ petition on the ground that‑the impugned order does not suffer from any jurisdictional error and urged that the Tribunal which is vested with the jurisdiction to decide a matter has the jurisdiction to decide it rightly or wrongly. He relied on cases of Ch. Ali Muhammad v. Government of Pakistan (1974 SCMR 1939) and Government Jallo Rosin & Turpentine Factory v Commissioners of Sales Tax, Lahore Zone (1974 S C M R 53).

12. Perusal of the record reveals that the ultimate decision of respondent No.2 in the impugned order, per se, is not in consonance with the complaint lodged by the petitioner, and the evidence forth‑coming as a result of the inquiry conducted under the very direction of respondent No.2, pertaining solely to the grave illegalities and violation of law during the polls in polling station Biari alone. It is also a matter of record that the recommendations made in the report of District Returning Officer were confined to the re‑polling in the aforesaid polling station. .The requisite satisfaction of respondent No.2 as envisaged under section 103‑AA (ibid) regarding illegalities and violation of the provisions of the Act and rules made thereunder committed in the polls at the Biari polling station as also the precise prayer made in the complaint, is manifest from the very .impugned order and in this regard the following observations made therein can be usefully quoted: "The Returning Officer, in summing up the report has recommended that re‑polling in Biari polling station alone, may be ordered and this is what the applicant had precisely prayed for in the application." And again: "While we, have no hestitation in accepting the recommendation of the learned District Returning Officer that massive rigging had taken place at polling station Biari beyond any shadow of doubt " In the light of the foregoing, there existed quite sufficient jurisdiction for respondent No.2, on the factual as well as legal premises, to declare the polls in the polling station Biari alone as C void and for issuing orders of re‑poll accordingly which would have been perfectly in accord with the facts of the case and law relevant thereto.

13. It, however, transpires that it was at fag‑end of the proceedings before respondent No.2 when the hearing was to conclude that a hurriedly drafted application was made by respondent No.1 which influenced respondent No.2 and it held: the law requires that the entire election of NA‑16 Mansehra‑111 be declared void." Consequent to this, the respondent No.2 was pleased to declare fresh elections in the whole of the Constituency, proceeding on the assumption that the order was being based on the "concession of the parties"

14. It may be pertinent to state that the petitioner has vehemently denied to be a party in the so‑called "concession of the parties" and not only it is supported by an affidavit but we have also reasons to believe it as true inasmuch as nowhere in the whole of the impugned order any reference is made to the alleged "concession of the parties" save the concluding para and that too seemingly rather in passing and it was solely the application of respondent No.1 which prevailed with the Election Commission, respondent No. 2, to give its final decision of re‑polling in the whole Constituency. In fact, a careful reading of the impugned order indicates that this notion of "concession of the parties" is neither borne out from the record nor can be inferred from the circumstances .in so, far as concerns the petitioner in particular.

15. Regarding the contention: of the learned counsel for the petitioner that the final decision of the impugned order is contrary to the real issue before respondent No.2 and is not only based on no evidence but is also rather paradoxical of its own findings as is apparent from the earlier part of the impugned order, let it be stated that even the learned counsel for the respondents could not controvert it at-least on factual premises. They were, however, of the view that while no limitation can be placed on the powers of the respondent No.2 to exercise its discretion in favour of the whole or part of the re‑election in a Constituency, writ petition raises question of disputed facts and as such it is not maintainable.

16. True it is, that ordinarily the High Court is not entitled to investigate disputed question of fact in the exercise of its writ jurisdiction, but it is well‑settled that a finding of fact can be interfered with if it is based on no evidence or a misreading of evidence or ignoring of material evidence or taking into consideration inadmissible evidence. Reference in this regard may be made to the case of Commissioner and another v. Mian Sher Muhammad reported in 1972 S C M R 395.

17. On the point of placing limitation etc. on the power of the Election Commission under section 103‑AA of the Act, in the instant case, we regretfully find that the final decision of respondent No.2 in the impugned order is founded on no evidence but rather on the inferences drawn which by no means follow the established facts. It is therefore, not a case of placing any sort of limitation on the powers of respondent No.2 but a question of exercising its jurisdiction under section 103‑AA of the Act judiciously. Thus, as stated earlier, respondent No.2 appears, to have misdirected itself, having regard to the ample evidence recorded by the learned District Returning Officer under the direction of respondent No.2 and the comprehensive report of the District Returning Officer before it, which led to the conclusion almost opposite to and deviative from that which respondent No.2 has adopted. There was no justification for brushing aside the material which came before it or to by‑pass the evidence collected during the inquiry under, its own orders. In fact, the view that prevailed with the respondent No. 2, having been influenced by an erroneous deduction from the facts, obviously could not support such an inference as diametrically opposite to the complaint lodged anti prayer made by the petitioner. Such being the position, the impugned decision is reduced to an illegal exercise of jurisdiction and as such it is thrown open to a judicial review in the Constitutional jurisdiction of this Court. In this regard a decision of the Supreme Court in case of N. M. Khan and others v. Chief Settlement and Rehabilitation Commissioner and others reported in 1970 S C M R 158 fortifies us in this view.

18. Before parting with the case we may dispose of another contention of the learned counsel for respondent No.2 in that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. To counter the contention of the learned counsel we may refer to a decision of Supreme Court in case Utility Stores Corporation of Pakistan Ltd. v. Punjab Labour Appellate Tribunal and others reported in PLD 1987 SC 447 and reproduce with advantage the law laid down on the issue:

"It is not right to say that the Tribunal which is invested with the jurisdiction to decide a particular matter, has the jurisdiction to decide it "rightly or wrongly" because the condition of the grant of jurisdiction is that it should decide the matter in accordance with the law. When the Tribunal goes wrong in law, it goes outside the jurisdiction conferred "on it because the Tribunal has the' jurisdiction to decide rightly but not the jurisdiction to' decide wrongly. Accordingly, when the Tribunal makes an error of law in deciding the matter before it, it goes outside the jurisdiction and, therefore, a determination of the Tribunal which is shown to be erroneous on a point of law can be quashed under the writ jurisdiction on the ground that it is in excess of its jurisdiction." In the context of this legal situation, although the respondent No.2 is clothed with the requisite jurisdiction to deal with the matter, yet the order impugned cannot be defended on the plea as raised by the learned counsel. Thus where the law has not been correctly followed or properly observed, a case of interference by the High Court, in exercise of its Constitutional jurisdiction, is certainly made out.

19. Similarly the contention of the learned counsel for respondent No.1, though in essence proceeds towards the same object as that of the petitioner in the instant case, yet the grounds pressed into service, or the result desired to be achieved, cannot be accepted in view of the fact that he is estopped to question the impugned order which emanated from his own violation and thereby led the respondent No.2 to give a decision which, but for his application, would have been a straight and simple order of fresh polls in polling station Biari and this would have been not only in conformity with the established facts of the case but also in complete accord with the law.

20. On equitable premises also we regretfully note that the impugned order, if left in field in its present form, would tantamount to disenfranchising the voters who had already and rightly cast their votes in other polling stations of the Constituency. It will not be justifiable to put those voters to the trial and rigours of re‑casting their votes in as many as 65 other polling stations, for no fault of theirs, particularly keeping in view the area and terrain where means of communications are not as good as in the other developed parts of the country.

21. In this context of the matter, we are constrained to hold that the impugned order is not well conceived regarding "concession of the parties" and having been founded on no evidence, qua its ultimate decision of holding re‑election in the whole of the Constituency of NA‑16 Mansehra‑III; it cannot be sustained in its entirety. As such it is clearly liable to be corrected so as to make it effective only to the extent of re‑polling in the polling station Biari, and we order accordingly.

22. In the result, we allow this writ petition to the extent indicated above and leave the parties to bear their own costs. H.B.T /810/P Petition allowed.