1990 PLP 370 (SCMR)

Date of hearing: 12th June, 1989. NAIMUDDIN, J.‑‑The petitioner and respondents Nos. 5 to 8 contested the election for ward No.13 of Peshawar Municipal Corporation, Peshawar, held on 30‑11‑1987 under the Local Councils Ordinance. The petitioner was declared successful.

2. Haji Rehman and Zaiwar Shah, respondents Nos, 5 and 8 respectively filed election petitions, which were consolidated. It was alleged by them that the election could not proceed and all the candidates including the petitioner, in view of the prevailing situation, made an application to the Returning Officer for ordering the cancellation of the election. They further alleged that a large number of voters present in the polling station were deprived of their right and they could not cast their votes after 2‑30 p.m. The petitioner contested the election petition and denied the allegations made therein.

3. The Election Tribunal, after recording the evidence adduced by the parties by its judgment dated 25‑9‑1988, dismissed the election petition. Feeling aggrieved, respondent No.5 filed a writ petition in the Peshawar High Court, which was allowed as per impugned judgment dated 15‑5‑1988 and after declaring the election of the petitioner as a whole void, re‑election was ordered, which has given rise to this petition for leave to appeal.

4. It is, inter alia, contended that there was no corrupt or illegal practice by the petitioner during the election and no violation of section 13(h) of the N.‑W.F.P. Local Councils Ordinance, 1979 was committed, that the petitioner had explained the circumstances in which he had signed the blank paper which was used as an application, that all the voters present were freely allowed to cast their votes in favour of candidates of their choice, no impediment was created by the petitioner or the administration and thus the polling went on smoothly and that the following findings of fact and the conclusion arrived at by the Election Tribunal have been unduly set aside by the High Court in writ jurisdiction;‑‑ "It is abundantly clear from the record of the case file and the statements of Presiding Officer and ASI and also from the statements of petitioner as well as respondent that no corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent. It is also clear that the election staff. (including police party) was in no way involved in any breach of official duty in connection with the election."

5. The following observation of the High Court has also been questioned:‑‑ .......It appears that due to the ignorance of law on the part of the Presiding Officer as well as the Returning Officer, re‑election at the polling station was not ordered in compliance of Rule 26."

6. The above contentions, inter alia, require consideration. Leave to appeal is, therefore, granted. Security in the sum of Rs.5,000.

7. The interim order passed on 24‑5‑1989, suspending the operation of the impugned order shall continue till the disposal of the appeal, which will be fixes for hearing as early as possible, being an election matter. A.A./N‑194/S Leave granted.