1991 PLP 2033 (SCMR)

SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine I whether by the impugned judgment dated 6th of March, 1991, the High Court Balochistan was "justified in considering an Order passed by the Election Commission of Pakistan under subsection (2) of section 27 of the Representation of the People Act, 1976 (Act LXXXV of 1976‑‑‑hereinafter referred to as the Act) to be one under section 103AA of that Act and then not finding it within the purview of that section and for that reason setting it aside."

2. On the 27th of October, 1990, polling took place to the Provincial Assembly seat of Balochistan described as PB‑38 Turbat‑

11. There were complaints of force being used for interrupting the polling particularly at Polling Stations Chib No.5, Mehnaz No.6 and Jordain No.3. The respondent No.3/Muhammad Ayub (hereinafter referred to as the respondent), a candidate at the election, addressed a Petition to the Chief Election Commissioner under section 103AA of the Act regarding malpractices, illegalities, gross ‑irregularities and acts of rigging in the election in PB‑38 Turbat‑II held on 27‑10‑1990. This application is undated. The prayer made therein was as hereunder:‑ "It is, therefore, prayed that your Lordship be pleased to conduct summary enquiry in this case and after satisfying your goodself that grave illegalities have been committed in contravention of Election Laws and Rules in respect of Election in the Constituency PB‑38, Turbat‑II, your Lordship be pleased to declare the Election void and order Election afresh in the interest of justice. Pending such inquiry, the Notification of the results of Election PB‑38, Turbat‑II be stayed in the interest of justice."

3. The matter came up for consideration before the Election Commission comprising Chief Election Commissioner and the two Members on 18‑11‑1990 and the following Order was passed:‑ "On the information received by the Provincial Election Commissioner regarding deteriorating law and order situation, the polling was ordered to be stopped. Deputy Commissioner Turbat had informed that ballot boxes/ballot papers of the following Polling Stations were forcibly taken away by the rival candidates and Assistant Presiding Officers were also kidnapped:‑ (1) Polling Station No.5 Primary School, Chib. (2) Polling Station No.6 High School, Mehnaz. (3) Polling Station No.3 Improvised Jardain. (2) The petitioner has made a grievance that there was rigging in many other Polling Stations. He therefore prayed that besides the 3 abovementioned Polling Stations re‑poll may be ordered in 6 more polling stations. (3) The counsel for the petitioner submitted that the result of the remaining polling stations was allegedly changed after polls, except the 3 polling stations when it were stopped due to deterioration in the Law and Order situation. (4) The other allegations made by the petitioner require detailed enquiry and recording of evidence, which falls within the jurisdiction of the Election Tribunal. (5) After summary enquiry, we are inclined to order re‑poll in the following polling stations of PB‑38 Turbat‑II, where ballot boxes/ballot papers removed:‑ (1) Polling Station No.5 Primary School, Chib. (2) Polling Station No.6 High School, Mehnaz. (3) Polling Station No.3 Improvised Jardain. (6) However the petitioner may file an election petition in order to prove the remaining allegations before the Election Tribunal if so advised."

4. A notification of the Election Commission of Pakistan issued on 2nd of December, 1990 as hereunder:‑

"In pursuance of the provisions of subsection (2) of section 27 of the Representation of the People Act, 1976 (LXXXV of 1976), read with this Commission's Notification of even number, dated 22‑11‑1990, the Election Commission of Pakistan has ordered that a fresh poll shall be held on the 13th December, 1990 at the following three polling stations of Constituency No.PB‑38 Turbat‑II as per assignment of Muslim voters duly enrolled in the electoral roll and indicated thereagainst in the District Returning Officer's Notification No.5528‑29 dated 25th September, 1990:‑

Serial Number of polling?????????????????????????????????? Name and location of polling stations.??????????????????????????????????????????????????????????? stations. (3)??????????????????????????????????????????????????????????????????? Improvised polling station Jardain. (5)??????????????????????????????????????????????????????????????????? Primary School, Chib. (6)??????????????????????????????????????????????????????????????????? Middle School, Mehnaz. (2) The poll shall be taken between the hours of eight o'clock in the morning and five o'clock in the afternoon without break. By Order of the Election Commission."

5. On the same day i.e. 2‑12‑1990, the respondent filed a Constitution Petition in the High Court alleging what he had earlier alleged and praying as hereunder:‑

"It is, therefore, prayed that the impugned decision of the respondent No.l whereby holding of re‑poll in the six polling stations referred to hereinabove have not been directed may be found to have been done without lawful authority and accordingly the respondent No.l may therefore be directed to reconsider the case of the petitioner for so directing in exercise of the authority under section 103AA of the Representation of the People Act, 1976." We are told that subsequently amended relief was sought and the re‑election in the entire constituency was claimed.

6. In the impugned judgment, the High Court dealt with the impugned judgment/order of the Election Commission of Pakistan as if it was passed under section 103AA of the Act and on the basis of the judgment of the Supreme Court in Haji Muhammad Ayub Khan v. Alam Zub Khan and another (C.P.LA. No.96‑R/1989 decided on 13‑3‑1989) held that partial re‑polling, as ordered, was not possible by recourse to that section. The only observation made in the judgment of the High Court with regard to the availability of power under section 27 of the Act, worth noticing, is as hereunder:‑

"There is absolutely nothing on record to show order relating to stoppage of polls at any polling stations on 27th October, 1990, therefore, section 27 of "The Act" has no relevancy. Whereas section 103 of "The Act" is supervisory and administrative nature empowering the Election Commission for ensuring fair elections. The power specified therein can be utilized during the conduct of polls and not thereafter. Therefore, by whatever angle, the impugned order is visualized, it would appear that Election Commission has passed the same under section 103AA, but not under section 103 of "The Act".".

7. The High Court mentioned in the portion of its judgment reproduced above that there was "absolutely nothing on record to show order relating to stoppage of polls at any polling stations on 27th October, 1990". The very opening words of the impugned order of the Election Commission of Pakistan mention that "on the information received by the Provincial Election Commissioner regarding deteriorating law and order situation, the polling was ordered to be stopped. Deputy Commissioner Turbat had informed that ballot boxes/ballot papers of the following Polling Stations were forcibly taken away by the rival candidates and Assistant Presiding Officers were also kidnapped:

? ". There were two factors which clearly indicated that the exercise of power by the Election Commission of Pakistan was under section 27 and not under section 103AA of the Act as assumed by the High Court and dealt with by it. ??????????? Firstly, the notification itself made express mention of it. Secondly, the Election Commission had the power under the Act to order partial repolls where the jurisdictional requirements for such an Order were found satisfied. As regards the satisfaction of the jurisdictional requirements, none is found wanting. The stoppage of polling had taken place. The report of the Provincial Election Commissioner was there. The matter dealt with by the Election Commission of Pakistan was not confined to the application filed by the respondent/writ petitioner but also concerned the report of the Provincial Election Commissioner.

8. The learned counsel for the respondent/writ petitioner has found justification for the view of the High Court in the comments submitted by the Election Commission in reply to the writ petition, particularly the portion reproduced hereunder:‑ . "It is submitted that the answering respondent ordered re‑poll at three polling stations i.e. No.3, 5 and 6 on receipt of reports that on account of deterioration of law and order situation, polling thereat was stopped and could not be resumed. This material was sufficient to exercise its jurisdiction under section 103AA of the Act which is confined to the facts apparent on the face of the record and to hold summary inquiry. The allegation in respect of other polling stations fell outside the ambit and scope of this provision, as detailed enquiry and examination of witnesses was required in this behalf. This being the case, the answering respondent acted well within its powers and jurisdiction to decline to adjudicate upon the petitioner's request and to observe that he might file an election petition, if so advised, as provided under Article.225 of the Constitution and the provisions of Representation of the People Act, 1976."

9. Section 27 of the Act is reproduced hereunder:‑

"

27. Stopping of the poll.‑‑(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if‑‑ (a) the poll at the polling station is at any time, so interrupted or obstructed for reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 26; or (b) any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed, or is lost or is damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained. (2) Where a poll has been stopped under subsection (1) the Returning Officer shall immediately report the circumstances to the Commission and the Commission shall direct a fresh poll at that polling station, unless it is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling stations in the same constituency. (3) Where the Commission orders a fresh poll under subsection (2), it shall, by notification in the official Gazette,‑‑ (a) appoint a day for a fresh poll and fix the place at which and the hours during which such fresh poll shall be taken, and (b) the Returning officer shall give public notice of the day so appointed and the place and hours so fixed. (4) At a fresh poll taken under subsection (3) at a polling station, all electors entitled to vote thereat shall be allowed to vote and no vote cast at the poll stopped under subsection (1) shall be counted; and the provisions of this Act and the Rules and Orders made thereunder shall apply to such fresh poll."

10. The impugned order of the Election Commission of Pakistan clearly refers to the satisfaction of the jurisdictional requirements for invoking this power because the polling had to be stopped on account of interruption or obstruction and it was that limited power which was being exercised by the Election Commission. There is nothing on the record to dispute this factual background and it is not possible in constitutional jurisdiction to dispute it either.

11. In the circumstances, we find that the High Court in assuming that the order was passed under section 103AA and not under section 27 of the Act went against the record. Secondly, in holding that there was no stoppage of the polls at these three polling stations, it again ignored the record‑‑‑the very order which mentioned it otherwise. Thirdly, the impugned order of the Election Commission having been passed under section 27 it was not required to satisfy jurisdictional requirements of section 103AA. It is not the finding of the High Court nor can such finding be recorded that by making an application and invoking section 103AA, the petitioner limited the jurisdiction of the Election Commission to exercise power only by reference to that section and not by reference to any other section of the Act. An applicant cannot by his own act Jimit or otherwise control the amplitude of the jurisdiction of a statutory authority. In the matter of relief it can certainly limit his claim.

12. In the circumstances and for the foregoing reasons, we accept this appeal, set aside the judgment of the High Court and the Constitution Petition filed by the respondent shall stand dismissed. No order however, made as to costs. AA./M‑1531/S ?????????????????????????????????????????????????????????????????????? Appeal accepted.