P L D 1990 Supreme Court 352 (PLP)

After going through the report of the District Returning officer, the learned counsel for respondent had to concede that in relation to Polling Stations Nos. 43 and 44 there is evidence of removal of the ballot boxes, which constitutes malpractice and in the circumstances repoll may be ordered in respect of these polling stations only. (2) We have gone through the report of the District Returning officer. Admittedly, three ballot boxes with all the ballot papers therein are missing regarding which a case has been registered at Chaman Police Station. There can be no better evidence of rigging and malpractice in this constituency. In the circumstances we are satisfied that it is a fit case for interference under section 103-AA of the Representation of People Act, 1976. Consequently, the result of the entire constituency is declared void and fresh polls are directed in the manner provided in section 108 of the Representation of People Act, 1976." Abdul Hameed Khan Achakzai, respondent No.1 herein, feeling aggrieved by the aforesaid order challenged the same by riling a Constitutional Petition before the High Court of Balochistan (C.P.No. 279 of 1988). It was contended before the High Court that the Election Commission had illegally assumed jurisdiction for declaring the polls of Constituency PB-9 Pishiri-IV as void whereas the available record neither disclosed any illegality nor violation of the provisions of the Representation of People Act, 1976 or the Election Rules, especially when the ultimate result of the election was also not he total materially affected. It was also submitted that it was not disputed that to number of votes in Polling Stations Nos. 43 & 44 (Zaimal) of PB-9 Pishin-1V were 2,782 and that after the recovery of the two Ballot Boxes containing 997 votes, 1,785 votes, at best, could not be accounted for. In these circumstances even if total number of the unaccounted votes namely 1,785 votes were counted in their entirety in favour of any one of the contesting candidates, the total number of votes secured by him (including the aforesaid 1,785 votes) would be much less than number of votes obtained by respondent No.l. It was also submitted that the removal of ballot boxes was not attributed to Abdul Harneed Khan Achakzai, respondent No.1 herein; therefore, he could not be made to suffer for the misdeeds of a group of miscreants or the supporters of the respondents. The learned High Court accepted these pleas and in the course of an elaborate judgment found that in the circumstances of this case the provisions of section 103-AA were not attracted. Hence, the order of the Election Commission declaring the election as null and void and ordering the re-election in the constituency in question was declared as without lawful authority. The Constitutional Petition was, accordingly, accepted and the order of the Election Commission dated 1-12-1988 set-aside. It was further held that as on the available facts, the final result was evidently determinable on the basis of 'result counts' of 55 polling stations which clearly showed that Abdul Hameed Khan Achakzai was validly elected from Constituency PB-9 Pishin-TV, the Election Commission shall declare him as the elected candidate from Constituency PB-9 Pishin-IV. Mr. Basharatullah, learned counsel, in support of this petition, has argued that the learned High Court was in error in considering that the Election Commission's jurisdiction under section 103-AA of the Representation of Peoples Act was not attracted in this case. Furthermore, the order of the Election Commission was not liable to interference by a Constitution Petition as such a petition was barred under Article 225 of the Constitution. We have given our earnest consideration to these legal contentions, but feel that it is not necessary to finally adjudicate upon them because in our opinion the order of the High Court is a just, fair and proper order which is calculated to advance the interest of justice and, therefore, this case is not a fit one for exercise of our discretionary jurisdiction to grant leave to appeal. We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No.1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behrarn Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process. It has been repeatedly held by this Court that it shall not act in aid of injustice and where an order of the High Court has been passed to bring about a just, proper and fair result, this Court will not interfere. Accordingly, we refuse to grant leave to appeal in this case and dismiss this petition. M.BA./B-149/S Petition dismissed.