P L D 2002 Peshawar 102
Before Talaat QayumQureshi and Ijaz-ul-Hassan, JJ
HAHALAM KHAN and another—Petitioners;
ELECTION COMMISSION OF PAKISTAN through
Regional Office, N.-W.F.P. and6 others—Respondents
Writ Petition No.878 of 2001, decided on 2nd October 2001.
North-West Frontier ProvinceLocal Government Elections Rules, 2000——Rr. 3, 9, 12, 15, 29(2), 71,81, 82 & 84—North-West Frontier Province Local Government ElectionsOrdinance (VI of 2000), S.12—Constitution of Pakistan (1973),Art.199—Constitutional petition—Interruption in polling– Cancellation ofelection—Disturbance broke out at two polling stations which remained closedfor some time, but with intervention of Police and Military Officials pollingat those polling stations continued till polling hours fixed in thatrespect—Result of all polling stations including disturbed polling stationswere unofficially declared after counting of votes, but District ReturningOfficer cancelled election of said two polling stations—Polling in- said twopolling stations was though stopped for some time, but same was resumed withintervention of the Authorities concerned and continued uninterruptedly tillpolling hours and at close of the polling, Presiding Officer preparedunofficial result and declared the same—District Returning Officer afterpreparation of unofficial result under R.29(2) of N.-W.F.P. Local GovernmentElections Rules, 2000, could not cancel election of the two pollingstations—Only Election Tribunal had the authority to declare election as awhole void under R.84 of N.-W.F.P. Local Government Elections Rules, 2000 andno other Authority even the Chief Election Commissioner was competent either tocancel or declare the election void—Order cancelling election passedunauthorisedly by District Returning Officer and Notification issued in thatrespect, was set aside in circumstances.
Ali Jamil Qazifor Petitioner.
Muhammad Yousaf, Mufti Daud Shah, and Salauddin (in person).
MohibullahKakakhel . and Muhammad Iqbal Khalil for Respondent No.5.
Shamoon AhmadBajwa for Respondent No.6.
Date of hearing:30th August 2001.
TALAAT QAYUM QURESHI,J.—–We propose to dispose of this Writ Petition No.878 of 2001 (Shah AlainKhan and another v. Election Commission of Pakistan and others) and WritPetition No.1084 of 2001 (Sajid Iqbal and another v. Election Commission of Pakistan etc.). through this single judgment as both is the outcome of the results of polling in one and the same Constituency.
2. Briefly stated the facts are that the petitioners in both the writ petitions Nazim and Naib Nazimrespectively for Local Council District Nowshera held on 2-7-2001.
3. Messrs Shah Alam Khan, SajidIqbal, Khairul Bashar, and Gul Raz Khan contested. for the post of Nazim, whereas Said Zaman Shah, Raghib Hussain, Haji Mian Wali, and Taj Akbar contested for the post of Naib Nazim. In two Polling stations disturbance broke out but with the intervention of Police and Military Officials the polling continued till the polling hours fixed by the A Returning Officer and the results of all the Polling Stations were unofficially declared after counting of votes. the district Returning Officer respondent No.2 in both the writ petitions vide his order dated 3-7-2001 canceled the election of Polling Stations Nos. l and 4.The said order was conveyed through respondent No.3 vide his order dated4-7-2001. The petitioners in Writ Petition No.878 of 2001 being aggrieved of the cancellation order dated 3-7-2001, as well as 4-7-2001, have sought a declaration of impugned orders as without lawful authority, while the petitioners in Writ Petition No. 1084 of 2001 have prayed for declaration of the election of all the Polling Stations of Aza Khel Bala as void and have sought direction for re-election/re-polling in the said Constituency.
4. Qazi Muhammad Jamil learned counsel representing the petitioners in Writ Petition No.878 of 2001 argued that polling though was interrupted and stopped for some time in PolingStations Nos. l and 4 but was not fully stopped 8 by the Presiding Officer and continued till the end of polling time fixed by the Returning Officer. The total votes which were polled including Polling Stations Nos. l and 4 were counted and unofficial result was also declared and conveyed to the candidates. ShahAlam Khan petitioner in Writ Petition No.878 of 2041 as per unofficial results obtained more votes than the contesting candidates and thus he was to be declared as a returned candidate along with his companion Said, Zaman Shah. No report as required by rule 29 of the Elections Rules, 2000 was communicated by the learned Presiding Officer to the Returning Officer or to the DistrictReturning Officer regarding the disturbance and stoppage of the poll at PollingStations Nos. l and 4 in the said Constituency. Cancellation order passed by the District Returning Officer, respondent No.2 is not based on the report of the presiding Officer but is based on the reports conveyed to him by the outsiders.
5. It was also argued that respondents Nos.2 and 3 were not competent to cancel the election and even for that matter Chief Election Commissioner under the present Election Laws was not competent to cancel the election of any of the Wards/Polling Stations. It was only the jurisdiction of the Election Tribunal to cancel the election after recording evidence. The impugned orders passed by respondents Nos.2 and 3 and the edifice built thereupon are illegal and. without any lawful authority.
6. On the other hand, MesssrsMian Muhibullah Kakakhel and Mr.Muhammad Iqbal Khan Khalil learned counsel representing the respondent No.5 in Writ Petition No.878 of 2001 argued that proper report was made by the Presiding Officer to the Returning Officer and even F.I.R. No.334 was also registered at his instance in Police Station AzaKhel, District Nowshera. The orders of respondents Nos.2 and 3 were based upon the report made by the Presiding Officer and respondent No.2 could under rule29 (2) cancel the election of a particular Ward/Polling Station and order re-election. The impugned orders being in accordance with rules need no interference.
7. It was also argued that Chief Election Commissioner vide Notification dated 7-7-2001 had notified re-election in Polling Stations Nos. 1 and 4 but the said notification was not challenged by the petitioners and even they participated in the re-election held on 25-7-2001, therefore, they cannot turnaround and challenge the subsequent election.
8. It was also argued that all the contesting candidates 29 in number were not impleaded parties, therefore, the writ petition deserved dismissal.
9. Mr. Shamoon Ahmad Bajwa, the learned counsel representing respondentNo.6 in Writ Petition No.878 of 2001 and petitioners in Writ Petition No.1084of 2001 argued that due to hindrance in election and illegalities committed with the connivance of the polling staff, the polling was stopped for a sufficient long time. A report was sided with the petitioners in Writ PetitionNo.878 of 2001. As a result of the said report, Muhammad Yousaf PresidingOfficer’s services were terminated by the Returning Officer. Due to the illegalities committed by the petitioners in Writ Petition No.878 of 2001 with the connivance of the polling staff, result of the election could not be announced and therefore, it would be in the interest of justice if the whole election is declared void and fresh polls are directed.
10. We have heard the learned counsel for the parties and perused the record.
11. The argument of the learned counsel for the petitioners in Writ PetitionNo.878 of 2001 that the impugned orders dated 3-7-2001 and 4-7-2001 passed by respondents Nos.2 and 3 were based on the reports conveyed to him by the outsiders and the Returning Officer had failed to furnish a report regarding the disturbance and stoppage of the poll at Polling Stations Nos. 1 and 4 in the said Constituency has no force at all. Tie perusal of the requisitioned record reveals that the concerned Presiding Officers had not only lodged the F.I.R.No.334 in Police Station Aza Khel but had also furnished their reports to the returning Officer, who had further reported the matter to the DistrictReturning Officer, which culminated into passage of the impugned order dated3-7-2001, which was conveyed to the petitioners by respondent No.3 vide order dated 4-7-2001.
12. The argument of the learned counsel for the petitioner in writ petition No.878 of 2001 that respondents Nos.2 and 3 were not competent to cancel the election and even the Chief Election Commissioner under the existing election laws was not competent to cancel the election of any of the words/polling stations and it was only the jurisdiction of the ElectionTribunal to declare the election as void after recording evidence has a force in it.
13. In the case in hand, the allegations leveled are that in two PollingStations i.e. Polling Station No. l and Polling Station No.4 disturbance broke out at 4-00 p.m. which resulted. in the stoppage of polling for some time. However, with the intervention of the police the polling continued uninterruptedly. The result in all the Polling Stations including Polling Stations Nos. l and 4were unofficially declared after counting votes in which Shah Alam Khanpetitioner in Writ Petition No.878 of 2001 obtained more votes than the contesting candidates. The respondent No. 3 vide his public notice dated4-7-2001 canceled the election in Polling Stations Nos. l and 4. The said order was based on the order of respondent No. 2 dated 3-7-2001 purportedly passed under Rule 29 (2) of the BNPS Local Government Elections Rules, 2000.
14. The question which needs determination here is whether respondentNo.2 could cancel the election? The answer is in negative. Rule 29 (ibid) is reproduced hereunder for the sake of convenience:–
(2) Where a pool has been stopped under sub-rule (1), the returning officer shall immediately report the circumstances to the district returning officer, who shall direct a fresh poll at that polling station and fix a date for such polls, unless he 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 results of the polling-at other polling stations in the same electoral ward.
15. The perusal of sub-rule (2) of rule 29 shows that the PresidingOfficer could stop the polls at the Polling Station if the polls were interrupted or obstructed for reasons beyond the control of the Presiding Officer and the polling could not be resumed during the polling hours fixed under rule28 and any ballot box used at the polling station was unlawfully taken out of the custody of the Presiding Officer, or was accidentally or intentionally destroyed or lost, or was damaged or tampered with to such an extent that the results of the poll at the Polling Station could not be ascertained. ThePresiding Officer in such an eventuality was to inform of the said stoppage of polling to the Returning Officer who would immediately report the circumstances to the District Returning Officer, who could direct a fresh poll at the PollingStation and fix the date for such polls unless he was satisfied that the result of the election had been determined that has already taken place at that Polling Station.No doubt the polling was stopped for some time but the same was resumed with the intervention of the local police and the Army officials deputed there and continued uninterruptedly till the polling hours. At the close of the polling, the Presiding Officers prepared unofficial results and declared the same. In order to ascertain this fact as to whether the Presiding Officers had prepared results at the close of the polling hours, this Court summoned the PresidingOfficers of the Polling Stations Nos. l and 4. Messrs Mufti Daud Shah, Muhammad Yousaf and Salahuddin Presiding Officers attended this Court on 13-9-2001. Mufti Daud Shah and Salahuddin who performed duties of Presiding Officers at polling Stations Nos. l and 4 confirmed that they had prepared unofficial results. When the unofficial results have been prepared, the District ReturningOfficer under rule 29 (2) of the B.N.P.S. Local Government. Elections Rules,2000 could not cancel the election of Polling Stations Nos. l and 4. The order/public notice dated 3-7-2001 passed by respondent No. 2 conveyed to the petitioners vide order dated 4-7-2001 passed by respondent No.3 is, therefore, without lawful authority.
16. Now we revert to the other questions as to whether the Chief ElectionCommissioner could cancel the elections or it was only the jurisdiction of the Election Tribunal. In order to resolve this question, we shall have to see the law applicable in this regard. In order to conduct the elections for the establishment of Local Governments, N.-W.F.P. Local Government ElectionsOrdinance, 2000 (N.-W.F.P. Ordinance No.VI of 2000) was promulgated. Likewise in order to conduct elections in a just, free, fair, impartial, and in a transparent manner, B.N.P.S. Local Government Elections Rules were also made applicable. The powers of the Chief Election Commissioner have been given in rule 3 (Chapter-II) and that of the District Returning Officers, ReturningOfficers, Presiding Officers, and Polling Offices have been mentioned in rules12 and 15 respectively in the said rules. A complete mechanism has also been given in order to decide the election disputes in rules 71 to 93 of the ordinance.
17. The perusal of rule 71 (1) shows that no election can be called in question except by an election petition made by a candidate for that election. Under rule 81, the Election Tribunal upon the conclusion of the trial of an election petition has the powers to make an order:–
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void
(c) declaring the election of the returned candidate to be void and petitioner or any other contesting candidate to have been duly elected;
(d) declaring the election as a whole to be void
18. The grounds on the basis of which election of a returned candidate can be declared void have been enumerated in rule 82 of the Ordinance. If the result of the election was materially affected by reasons of the prevalence of extensive corrupt or illegal practice at the election, the Election Tribunal under rule 84 had the authority to declare the election as a whole void.
19. Deep analysis of the above-referred provisions of lawfully clarifies the position that it is only the Election Tribunal which upon election petition made by a candidate for that election after the conclusion of the trial can declare the election as void. There is no authority as per Ordinance or Elections Rulesexcept Election Tribunal which can either cancel or declare the elections void. So far as the jurisdiction and powers of the Chief Election Commissioner are concerned, as mentioned above, those have been enumerated in rule 3 of theB.N.P.S. Local Government Elections Rules, 2000. Neither in the Ordinance norin the Elections Rules, the Chief Election Commissioner has been empowered to declare the elections of a particular Constituency or of any Polling Station as void.
20. The argument of the learned counsel for the respondent that all the contesting parties were not impleaded, therefore, the writ petition deserved dismissal has no force. The petitioners have filed a writ petition challenging the orders passed by respondents Nos.2 and 3. The concerned authorities whose orders have been challenged have been arrayed as parties, therefore, there were no other necessary parties, which should have been impleaded and thenon-impleadment of which would materially affect the case of the petitioner’s inWrit Petition, No.878 of 2001.
21. The argument of the learned counsel for the respondents that the petitioners have not challenged the notification dated 7-7-2001, whereby re-election for Polling Stations Nos.1 and 4 was ordered and that they participated in the election held on 25-7-2001, therefore, they cannot turn around and challenge the previous election equally has no force. We have in the preceding paragraphs held that respondents Nos.2 and 3 had no lawful authority to cancel the elections. Since the order of respondent No. l is based on the impugned orders, therefore, the entire superstructure built thereon shall also collapse when the impugned orders go out of the field. Moreover, the respondent No.l as mentioned above has no lawful authority and jurisdiction to cancel the elections or to declare the elections as void, therefore, the notification dated 7-7-2001 has also been issued without lawful authority. So far as the participation of petitioners in a subsequent election held on 25-7-2001 is concerned, suffice it to say that they participated in the subsequent elections as per orders of this court. Hence they would not be stopped by their conduct to challenge the same.
22. We, therefore, allow the Writ Petition No.878 of 2001 (Shah Alam Khan and another v. Election Commission of Pakistan and others), set aside the impugned orders dated 3-7-2001 and4-7-2001 passed by respondents Nos.2 and 3 respectively, and direct the said respondents to officially announce the results of elections held on 2-7-2001. Consequently, Writ Petition No.1084 of 2001 (Sajid Iqbal and another v.Election Commission of Pakistan and others) is dismissed. We also declare there-elections held in Polling Stations Nos.l and 4 on 25-7-2001 as void. with the announcement of official result of the elections held on 2-7-2001 if any of the contesting candidates is aggrieved, he/they can invoke the jurisdiction of the Election Tribunal constituted for resolving the election disputes for the said area. There shall, however, be no orders as to costs.