Malik ANJUM FAROOQ PARACHA Versus CHIEF ELECTION COMMISSIONER OF PAKISTAN

The petitioner and respondents Nos.4 to 12 contested election for the seat of Nazim and Naib‑Nazim of Union Council No.39, Rawalpindi City. The main contest was between the petitioner and Malik Rafique and Sardar Tariq Khan (respondents Nos.4 and 5 in the present petition). The date for polling was 2nd of July, 2001 and the normal hours of the poll were from 8‑00 a.m. to 8‑00 p.m. The District and Sessions Judge, Rawalpindi, was the District Returning Officer, Rawalpindi City, whereas the Additional District and Sessions Judge was appointed as Returning Officer of Ward No.39 under the orders of Chief Election Commissioner under Punjab Local Government Elections Rules, 2000. The Presiding Officers and the Polling Officers at the Polling Stations were appointed by the Returning Officers under rule 15 of the Punjab Local Government Elections Rules, 2000. The polling was started at the scheduled time which remained continued till the time of its closing. The Presiding Officer of all the Polling Stations except Polling Station No.54, announced the unofficial result. The Returning Officer, Union Councils Nos.33 to 39, vide Letter No. 171 dated 3‑7‑2001 i.e. on the next day of poll sent the following information to the District Returning Officer:‑‑

"I have the honour to submit that due to non‑availability/shortfall of the ballot papers of various categories at three Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi, in my constituency and the deficiency despite all efforts by me could not be made good and when in the evening I visited the polling station law and order situation was created arid threat to my life was extended by various persons there, therefore, the poll of said three Polling Stations Nos.54, 58 and 59 namely M.C. Dispensary Chittian Hattian, Grainer Public School Teli Mohalla and Grainer Public School Teli Mohalla, Rawalpindi, respectively of Union Council No.39, Rawalpindi may be stopped for fresh polls."

2. The District Returning Officer, Rawalpindi vide Letter No.1932‑GE/UC dated 3‑7‑2001 sent the following message to the Provincial Election Commissioner, Punjab, Lahore:‑

"On the written application/request of Mr. Shahzad Pervaiz Abbasi, learned Returning Officer/AD and SJ, Rawalpindi, I am convinced that the poll cannot continue on Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi namely:‑

54.M.C. Dispensary Chittian Hattian, Rawalpindi.

58. Gramer Public School, Teli Mohalla Rawalpindi.

59. Gramer Public School, Teli Mohalla Rawalpindi.

Therefore the same is ordered to be stopped forthwith for holding fresh polls of said polling stations on 10‑7‑2001 which is already a date for holding of polls of Union Council No. 107, Rawalpindi.

It is, therefore, requested that fresh ballot papers may please be got printed of all the validly nominated contesting candidates of all the categories of Union Council No.39 for said polling stations according to list of candidates already provided to you by the Returning Officer. The poll shall be held on said date from 8‑00 a.m. to 6‑00 p.m. without break. Copy of letter/request of learned Returning Officer is enclosed for perusal.'

3. The Presiding Officer of Polling Station No.54. of Union Council Nos.39 submitted report relating to the factual position to the Returning Officer as under:‑

4. The Presiding Officer (Tehseen Asif) of Polling Station No.58 sent a letter to the Returning Officer that with the consent in writing and signed by all the Polling Agents of all the candidates, the polling was closed at 10‑30 p.m. The letter is to the following effect:‑

5. Similarly, the Presiding Officer of Polling Station No .59 with the consent of the Polling Agents in writing under their signatures started counting at 10‑30 p.m. The consent was as under:‑

6. The Provincial Election Commissioner, Punjab, on 5th of July, 2001, sent the following letter to the Secretary, Election Commission of Pakistan, Islamabad:‑

Subject:‑‑ Fresh poll of 3 Polling Stations of Union

Council No.39, Rawalpindi.

"I have the honour to send herewith a copy of the Letter No. 1932/GEUC dated 3‑7‑2001 alongwith its enclosure received from the District and Sessions Judge/District Returning Officer, Rawalpindi, on the above subject.

The District and Sessions Judge/District Returning Officer, Rawalpindi, has stated that as intimated by the Returning Officer for Union Councils Nos.33 to 39, Rawalpindi, the poll could not be continued at Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi due to the reasons as mentioned in his enclosed Letter No.171 dated 3‑7‑2001. He has requested that necessary orders for holding fresh poll for all categories of seats of Union Council Nos.39, Rawalpindi, at the abovementioned 3 Polling Stations on 10‑7‑2001, which is already a date for holding the polls of Union Council No. 107, Rawalpindi, may be issued."

7. The Provincial Election Commissioner, Punjab wrote another letter on the same day to the Secretary, Election Commission of Pakistan to fine following effect:‑

"In continuation of this office letter of even number and date, I have the honour to say that the reports of the Presiding Officers concerned regarding stopping of poll as required under rule 29 of the B. N. P. S., Local Government Elections Rules, 2000, at Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi, has not been received in this office alongwith the letters of District and. Sessions Judge/District Returning Officer concerned, copies thereof already sent to you vide this office letter referred to above. Moreover, it was intimated by the District Returning Officer, Rawalpindi, in the evening of 2‑7‑2001 that there is no need for re‑polling at the abovementioned 3 polling stations as more than 50% votes were cast at these polling stations. This being the position, I do not agree with the reports submitted by the Returning Officer of Union Council No.39, Rawalpindi and District Returning Officer, Rawalpindi.

It is, therefore, requested that necessary instructions regarding the declaration of unofficial/official results of Union Council No.39, Rawalpindi, may please be conveyed so that the District Returning Officer and Returning Officer concerned could be informed accordingly."

8. The petitioner being dissatisfied with the second letter, dated 5th of July, 2001, of the Provincial Election Commissioner, Punjab, filed a petition before the Chief Election Commissioner, Islamabad, questioning the validity of the fresh poll at Polling Stations Nos.54, 58 and 59 of Union Council 39 which was scheduled to be held on 10th of July, 2001.

9. The Chief Election Commissioner vide order dated 11‑7‑2001 dismissed the application of the petitioner with the observation that the District Returning Officer in the given situation rightly exercised the in the manner he proceeded and issued notification dated 7th of July, 2001, for re‑poll at Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi City.

10. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner questioning the validity of the order of re‑poll passed by the District Returning Officer and upheld by the Chief Election Commissioner of Pakistan. This petition was filed on 18‑7 -2001 and copy of the same was handed over to the learned Federal Counsel with the direction to appear before the Court on 23‑7-2001 with the report and parawise comments. The requisite report and parawise comments have been submitted on behalf of respondents No.4, 5, 6, 8 and 10 and in the light thereof this petition was admitted to regular hearing to consider the following, question, "whether in the given facts the Returning Officer was justified to withhold the result under rule 29 of the Punjab Local Government Election Rules, 2000, and direct for re‑poll. The main petition was fixed for final hearing for a date in the second week of August, 2001, and meanwhile the order of re‑poll at Polling Stations Nos. 54, 58 and 59 of Union Council No.39 was suspended.

11. The private respondents as well as Election Authorities including the Chief Election Commission are represented by, their respective counsel.

12. The petitioner has challenged the orders impugned in the present petition on the following grounds:‑

"(a) That the impugned order passed by respondents Nos.1 and 2 are against the facts of the case and the law applicable thereto. The orders are liable to be declared without lawful authority.

(b) That the Punjab Local Government Elections Ordinance, 2000, and the Rules framed thereunder have provided an in built mechanism for the holding of election. The law covers almost every step from beginning to end i.e. from election programme to the notification of the result and thereafter the election petitions. The legal provisions have not only to be adhered with but also applied and construed strictly.

(c) The rule 29 of the Punjab Local Government Election Rules, 2000, covers a situation where the polling may be stopped. It also provides a methodology for preparing and finalizing the result even in those cases where the polling has been stopped by the Presiding Officer.

(d) The cursory reading of the reports of the Polling Officers of the Polling Stations Nos.54, 58 and 59 reveals that at no point of time the polling was so interrupted or obstructed that it could not be resumed during the polling hours.

It is pertinent to note that none of the Polling officers of the three Polling Stations in question had made any report on 2‑7‑2001 either to the effect that there was a law and order situation of a magnitude which could lead to .the total stoppage of the polling or to the effect that the ballot papers were not available. The report appears to be an afterthought and calculated to harm the petitioner.

(e) That the Polling Officer of Polling Station No. 54 submitted in his comments that the polling was stopped in the afternoon which was resumed that the Presiding Officer has not said a word as to at what point of time, the polling was stopped due to shortage of the ballot papers and of which category.

Similarly the Polling Officer of Polling Station No. 58 reported that the polling began at 8‑30 a.m. A little later it was known that two ballot papers had less election symbols. The ballot papers were provided at 10‑00 a.m. and thereafter the polling continued till 8'O Clock in the evening that was the time when the polling had to be closed, whether the ballot papers thereafter fall short or not was absolutely immaterial. As far as the comments of the Presiding Officer of Polling Station No.59 are concerned the cursory reading would show that neither the ballot papers fell short nor any unmanageable incident happened rather the polling continued till the close of the hours.

(f) That it is also pertinent to point out that the result of the Polling Stations Nos.58 and 59 was prepared and announced with the consent of the polling agents.

(g) That the learned respondent No. 1 has not looked into the reports of the Presiding Officers which were rather more important than the comments of respondent No.2 for the simple reason that the Presiding Officers were functioning at the spot and the District Returning Officer was in this Chamber. The fact that the said reports have been totally ignored is by itself an illegality. Thus, the impugned order is without lawful authority.

(h) That the respondents Nos. 1 to 3 have not cared to note that the polling can only be stopped if the polling is continuing. There could be no stoppage of polling after the polling hours when the polling complete. Moreover, the stoppage of the polling is within the domain of the Presiding Officer who is functioning at the polling station. No such order was passed or communicated to the Returning Officer or to the District Returning Officer that the polling has been stopped. The report by respondent No.3 to respondent No.1 and order passed by respondent No.2 are manifestly illegal and without jurisdiction.

(i) That there is a very important and interesting feature of the case which knocks down, the case built by the Returning Officer and the District Returning Officer. No report of the Presiding Officer or the District Returning Officer was sent/receipt by the Provincial Election Commissioner, Punjab. As a matter of, fact, the District Returning Officer respondent No.2 has intimated the Provincial Election Commissioner, Punjab, in the evening of 2‑7‑2001 that there is no need for fresh polling at the above mentioned three polling stations as more than 50% votes were cast at these polling stations. The Provincial Election Commissioner did not agree with the reports submitted by the Returning Officer. Had the learned respondent No.1 looked into the contents of the said letter by the Provincial Election Commissioner the result would be different.

(j) That in view of the above precise question which ought to have been attended by respondent No.1 was as to whether the District Returning Officer could have issued a direction that he issued on 3‑7‑2001 without expressing his satisfaction or dis satisfaction referred to in sub‑rule (2) of rule 29 which provides that fresh poll cannot be directed if the District Returning Officer 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 station in the same electoral ward. The Legislature has taken care of the situation and the District Returning Officer has to decide the case in accordance with the dictates of the Legislature. The impugned order is liable to be interfered within the Constitutional jurisdiction on this score also.

(k) That it is submitted with utmost respect to the District Returning Officer that his report is incorrect. There is no report on the record; dated 2nd.July, 2001 by any of the polling staff about the shortage of the ballot papers on the Polling Stations. The polling was not totally stopped by any of the Polling Officer. The report to the effect that the polling was not peaceful as there were general reports of Union Council No.39 about the stoppage of polls due to shortage of ballot papers including the polling stations where rather poll has been ordered is also manifest incorrect. Had this been so the District Returning Officer ought to have recommended re‑poll to the entire Union Council instead of three polling stations.

(l) That in consequence of the order passed by District Returning Officer the Election Commissioner of Pakistan has issued Notification on 7‑7‑2001 directing the re‑poll on 25‑7‑2001 of Polling Stations Nos.54, 58 and 59 of Union Council No.39, Rawalpindi. The re‑poll shall operate to cause irreparable damage to the petitioner."

13. The petitioner on the basis of the above grounds taken in support of this petition claimed the following relief:‑

"(i) It is, therefore, respectfully prayed that petition may kindly be allowed. the impugned order dated 11‑7‑2001 passed by the learned respondent No. 1 and the order passed by the District Returning Officer dated 3‑7‑2001 may be declared to have been passed without lawful authority, without jurisdiction and without any legal effect qua the rights of the petitioner.

(ii) It is further prayed that respondent No.3 be directed to proceed with the compilation of the result and respondent No.2 be directed to consolidate the result and issue notification in accordance with the result.

(iii) It is further prayed that the operation of the impugned order as well as the Notification dated 7‑7‑2001 may kindly be suspended."

14. Sheikh Zamir Hussain, Advocate, learned counsel for the petitioner has raised the following contentions:‑

(a) That no complaint regarding the interruption or obstruction during the polling hours at Polling Stations Nos.54, 58 and 59 was lodged on the day of poll.

(b) The reports submitted by the Presiding Officers at the above said Polling Stations would show that no such incident happened at the Polling Station to obstruct the polling and create the situation which was beyond the control of the Presiding Officers or that the polling was stopped which could not be resumed during the polling hours.

(c) The Returning Officer has not submitted any report on the day of poll to the District Returning Officer containing the request for stoppage of poll and thus the order of re‑poll passed by the District Returning Officer on the basis of subsequent reports was without lawful authority.

(d) That rule 29 of the Punjab Local Government Elections Rules, 2000, is only. invokeable in case of any interruption or obstruction during the poll and not to withhold the counting and the result of the election after the poll is over.

(e) Notwithstanding the power of Election Commission of Pakistan under the Punjab Local Government Elections Ordinance, 2000, read with Punjab Local Government Elections Rules, 2000, this Court in exercise of the power of judicial review can interfere in the matter in which no proper remedy is available to an aggrieved person under the Election Laws for the redressal of the grievance relating to an administrative action during the election.

(f) There being no statutory remedy available against the orders impugned in the present petition, passed by the District Returning Officer and Chief Election Commission in the exercise of their powers under the Punjab Local Government Elections Ordinance, 2000, read with Punjab Local Government Elections Rules, 2000, the same would be subject to the judicial review of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973

(g) That the grievance raised by the petitioner if is not redressed at this stage and same is allowed to remain unredressed, the injustice being done to the petitioner cannot be undone subsequently through an election petition whereas in case of success of the petitioner, the election petitioner will be challenge‑able any valid ground through the remedy of election petition available under Punjab Local Government Elections Rules, 2000.

(h) That the orders of the Returning Officer and District Returning Officer relating to the scrutiny of nomination papers are challengeable through an appeal before the Forum provided under the Punjab Local Government Election Ordinance, 2000, read with Punjab Local Government Election Rules, 2000, but the administrative orders of the election authorities relating to the election matters before the declaration of result are not challengeable before any Forum except before this Court in its Constitutional jurisdiction. The dispute relating to the election of a returned candidate is challengeable through an election petition but the administrative order of the election authorities effecting the rights of the candidates in the election before the issue of the notification of result of election can only be challenged in the Constitutional jurisdiction of this Court.

15. Messrs Ch Muhammad Mushtaq Khan and Sardar Muhammad Naseem Advocate, while representing respondents Nos.4 and 5 have questioned the maintainability of this Constitutional petition on the following grounds‑

(a) That the orders under challenge have been passed on the basis of facts supplied by the field staff to the District Returning Officer and the Chief Election Commissioner of Pakistan and, therefore, the findings of fact even if erroneous would not be challengeable before this Court in the Constitutional jurisdiction of this Court and if ultimately the petitioner remains unsuccessful in the election can challenge the validity of impugned orders and the result of election through an election petition which is an adequate remedy provided under the law.

(b) That rule 29 of the Punjab Local Government Elections Rules, 2000 was rightly invoked by the District Returning Officer on the basis of the report submitted to him by the Returning Officer which contained sufficient material relating to the interruption and obstruction at the Polling Station as a result of which the polling was stopped and the situation being beyond the control of the Presiding Officers would justify the order of re‑poll at the concerned Polling Stations.

(c) That the shortage of ballot papers as reported by the Presiding Officers and the Returning Officers in their reports submitted to the District Returning Officer as a result of which a large number of voters were denied to exercise their right of vote would be an extensive source to materially effect the result.

(d) That the order passed by the District Returning Officer and the Chief Election Commissioner being not suffering from the defect of jurisdiction or mala fide or that the same were coram non judice were not challengeable before this Court in exercise of its Constitutional jurisdiction.

(e) That this Court in exercise of its Constitutional jurisdiction is not supposed to issue the writ of prohibition or certiorari to the Election Commission of Pakistan or declare the order of Chief Election Commissioner as without lawful authority and that the order of the District Returning Officer can conveniently be challenged in an election petition as an election dispute. Learned counsel in support of the above arguments have placed reliance on the following judgments: ‑

(i) PLD 1990 SC 599 (ii) 1996 SCMR 426 (iii) 1996 MLD 1602 (iv) 2000 MLD 46 (v) 2000 SCMR 1678.

16. The questions regarding the maintainability of this petition under Article 199 of the Constitution and the jurisdiction and the prohibition if any on the powers of judicial review of the High Court in relation to the grievance arising out of the order passed by the functionaries of Election Commission of Pakistan under the Punjab Local Government Election Ordinance, 2000, read with Punjab Local Government Election Rules, 2000, need decision as preliminary issues. It is an established principle of law that if no forum is provided for adjudication of a dispute relating to the election or no alternate remedy is provided under the relevant law to be availed by the aggrieved person against an order of election authorities the Constitutional petition for judicial review of the matter by this Court under Article 199 of the Constitution on the strength of Article 225 of the Constitution cannot be denied and if an order passed by an election functionary is illegal or has been passed beyond the scope of law under which the powers was being exercised or violative of the Constitution or law or it was without jurisdiction, coram non judice or mala fide can be challenged through the Constitutional petition before this Court. This is noticeable that there is no forum provided under Punjab Local Government Election Ordinance, 2000, or Punjab Local Government Election Rules, 2000, for adjudication of the matter relating to the election of Nazim and Naib‑Nazim in the Local Bodies Election before the declaration of result in the official Gazette except to challenge the rejection and acceptance of nomination papers through an appeal and after declaration of result in the official Gazette, the remedy of an election petition is provided to challenge the dispute relating to the election, the Statute do not provide any forum or remedy to question the validity of an order passed by a functionary of the Election Commission of Pakistan in his administrative capacity regarding any matter relating to the election, which may cause prejudice the election of a candidate, which can be termed as void order or violative of law and the Constitution or is without jurisdiction with the effect of de‑franchising a person and against which no statutory remedy is available, is not immune from the scrutiny of judicial review of this Court and therefore, if such an order is found suffering from any of the defect referred to above can be struck down under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. There is no cavil to the proposition that the High Court under Article 199 of the Constitution cannot interfere in the election dispute in which a remedy in the form of an appeal or election petition, as the case may be, is available before a Forum provided under the law but if there is no such Forum or remedy is available for redsessal of grievance in an election dispute at an intermediate stage, then in such a situation the order passed by an authority functioning under the command of Election Commission of Pakistan or Chief Election Commissioner cannot be given blanket cover of Article 225 of the Constitution and such an order shall be subject to judicial review of this Court under Article 199 of the Constitution. It is correct that generally in an election matters, the High Court is not supposed to interfere by invoking its Constitutional jurisdiction but this prohibition is subject to the exceptions that no alternate remedy is available to an aggrieved person for redressal of his grievance in a matter arising during the election or against an order passed by an election functionary before the official declaration of result as the order is found patent illegal or without jurisdiction or if such an order remains in field it can effect of de‑franchising a candidate, the same can be challenged through the Constitutional petition before the High Court. The apex Court in Aftab Shahban Mirani v. President of Pakistan and others (1998 SCMR 1863) held as under:‑

"The upshot of the above discussion is that generally in an election process, the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove."

17. Learned counsel for the respondents placing reliance on Humayoon Saifullah v. Federation of Pakistan through Secretary and others (PLD 1990 SC 599) contended that the High. Court is not supposed to issue writ of prohibition to the Election Commission of Pakistan as the result of the election can be challenged through an election petition as provided under Rule 71 of the Punjab Local Government Elections Rules, 2000. It is noticeable that in the case under reference leave was granted to examine the provisions of section 8‑B of the Political Parties Act, 1962, and the question for determination was "whether the High Court could issue writ of prohibition in the matter against which remedy of an appeal before the Supreme Court was provided under the law and whether the High Court could declare the reference sent to the Election Commission as incompetent in view of the fact that the petitioner before the High Court was not a leader of opposition party and as to whether the High Court could restrain the Election Commission of Pakistan from deciding the Reference referred to it within the meaning of section 8‑B of the Political Parties Act, 1962. The apex Court in the above referred case held as under:‑

"The learned counsel for the respondent has attempted to create a scope for the type of exercise undertaken by the High Court by reference to the cases of Anjuman‑e‑Ahmadia Sargodha (PLD 1996 SC 639), Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1973 SC 24), cases of Miss Benazir Bhutto PLD 1988 SC 416, Noori Trading Corporation (Pvt.) Ltd. and another PLD 1989 Queeta 74 and Abdul Jabbar and others v. Abdul Waheed Khan and others PLD 1974 SC 331, where act of a public functionary was involved, a jurisdictional fact has been wrongly decided or an error apparent on the face of the record allegedly existed. In the case in hand, there was no attack from any quarters that the Election Commission had exercised or was exercising a jurisdiction not possessed by it or had while exercising it exceeded its jurisdiction. There was nothing in the objection raised by the learned Attorney‑General as noted in the judgment of the High Court to suggest a malfunctioning of the Election Commission such as could justify the transference of the ad judicatory power from the Election Commission to the High Court on questions of fact and law. The legal threshold bf the bar of its jurisdiction having not been crossed by the Election Commission, no adjudication on merits in the nature of a substitutive finding could be recorded and a parallel jurisdiction on the subject‑matter of the controversy could not be exercised by the High Court. A judgment of the High Court suffers from a serious error. The appeal is accepted. The judgment of the High Court is set aside. The writ is recalled. "

Consequently, the apex Court in the light of the majority view remanded the matter to the High Court for decision of the writ petition on the Constitutional issues raised therein.

18. In the present case, the situation is different as neither there was any forum nor a remedy available to the petitioner to question the legality of the order passed by the District Returning Officer and affirmed by the Chief Election Commissioner, Islamabad.

19. The apex Court in Rahim Shah v. The Chief Election Commissioner of Pakistan and another (PLD 1073 SC 24) held as under:‑

"Under Article 201 certiorari will issue to any person performing in the Province functions in connection with the affairs of the Center, Province or Local Authority. It is not necessary that the `person' acts in a judicial or quasi‑judicial capacity. High Court will interfere if the act done or the proceedings undertaken is in violation of law or any established principle of law. The term `law' is not confined to `Statute' and to holding the inquiry the superior Courts are not restricted to an examination or record of the case. The Court may even record evidence to determine the legality of the act done 'or the proceedings undertaken.

It may be further observed that although the conditions for grant of certiorari, which obtained in English Courts do not apply to High Courts in Pakistan at the same time the extent of this Constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of Statute and if no appeal is provided by the Legislature, the determination of a Tribunal of exclusive jurisdiction is final. The scope of interference in the High Court is, therefore, limited to the inquiry whether the Tribunal has in doing the act or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative, the High Court will stay its hands and will not substitute its own findings for the findings recorded by the Tribunal. The cases of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal on this ground. Where the High Court is of the opinion that there is no evidence proper to be considered by the inferior Tribunal in support of some point material to the conviction or order, certiorari will be granted. "

It is clear that the High Court can set aside an order on the ground that there was no evidence on record to support the findings of fact arrived at by the Chief Election Commissioner of Pakistan on the basis of which he passed the order and threfore, the High Court in exercise of its power of judicial review is not debarred to determine the question whether the Chief Election Commissioner had acted with or without jurisdiction and can issue appropriate writ. 'The objection that the High Court cannot disturb the finding of fact recorded by the Tribunal of exclusive jurisdiction even if there was no evidence in support of such finding or an order passed by the Chief Election Commissioner even if was suffering from procedural defect was not challengeable through the Constitutional petition is without any substance. In a case of Ghulam Mustafa Jatoi v. Additional/District Returning Officer (1994 SCMR 1299) the apex Court held as under:‑‑

"The unshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the tease of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed herein above. "

In Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738), it was held by the apex Court as under:‑

"The above view was reiterated in the cases of Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra). In other words, it has been held by this Court that even if the impugned act or action has been protected by a Constitutional provision by ouster clause the superior Courts still have the jurisdiction to interfere within the above categories of the cases namely without jurisdiction, coram non judice and mala fide. In the case of Mian Muhammad Nawaz Sharif (Supra), the impugned action was taken dissolving the National Assembly and dismissing the Prime Minister and his Cabinet under Article 58(2) (b) of the Constitution, wherein the President has been empowered to dissolve the National Assembly in his discretion for the reasons contained in sub‑clauses (a) and (b) of the above Article. It may further be pointed out that clause (2) of Article 48 of the Constitution provides that `notwithstanding' anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever."

20. Learned counsel for respondents Nos.4 and 5 have contended that for the adjudication of election disputes, the remedy of an election petition is provided under rule 71 of the Punjab Local Government Elections Rules, 2000, before the Tribunal established under the said Ordinance and the said Tribunal is empowered to adjudicate the dispute involved in the present petition and declare the election void. The maintainability of this petition was questioned with the contention that the order under challenge was passed by the District Returning Officer which: was affirmed by the Chief Election Commissioner of re‑poll at three Polling Stations was not challengeable before this Court for the reason that as a result of re‑poll, if the petitioner is defeated in the election he can conveniently challenge the election of returned candidate on any ground including the ground being taken in support of this writ petition in the election petition and the Election Tribunal while adjudicating the dispute can declare the election void. In support of the contention reliance has been placed on Anwar Saiffullah v. Kabir Khan (2000 MLD 46). Learned counsel submitted that the complaints regarding the shortage of ballot papers would find support from the reports submitted by the Polling Officers therefore, it can be visualized that a substantial number of voters were deprived of to cast their votes which may not be due to the fault of a candidate but for such reason, the polling was disturbed which could materially effect the result of election and, therefore; the order of re‑poll in the circumstances would not be challengeable. Learned counsel has placed reliance on Shahnawaz Junejo v. Jam Masooq Ali and others (1996 MLD 1602) in support of his contention.

21. It may be observed that in the case in hand, no such complaint of disturbance, interruption or obstruction in the polling was made by the Returning Officer during the polling hours which could be the result of stoppage of polling or that the polling if stopped could not be resumed during the polling hours and, therefore, the contention that due to the disturbance a substantial number of voters were deprived of their right to cast their votes was without any foundation. This is noticeable that the reports submitted by the Presiding Officers are silent about the interruption or any obstruction or that the temporary suspension of polling, if any, it could not be resumed during the polling hours and it is not clear that due to the alleged shortage of ballot papers, how many voters could not cast their votes. It was held in the judgment referred by the learned counsel that as a result of omission on the part of officials conducting the election if the result of the polling was materially effected, the election as a whole would deserve to be declared as void in the election petition and thus the petitioner who as per unofficial result announced at the Polling Stations was declared successful would be justified in not accepting the order of re‑poll as the defeated candidate can file an election petition on the ground that due to the disturbance at the Polling Stations the result was materially affected. The apex Court in James Ilyas Masih v. Punjab Councils Election Authority, Lahore and others (1981 SCMR 919) held as under:‑

"Since the order of the Returning Officer rejecting nomination paper of Rafiq Paul was manifestly erroneous under the law the Election Authority rightly directed fresh elections to be held and we, therefore, see no just and proper ground for interference in this case."

22. The petitioner at the first instance while invoking the inherit powers of Chief Election Commissioner under section 12 of the Punjab Local Government Election Ordinance, 2000, sought correction of the order under challenge passed by the District Returning Officer in the supervisory jurisdiction of Chief Election Commissioner as controlling Authority of election instead of straightaway invoking the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the failure of the petitioner before the Chief Election Commissioner would not debar him from invoking the Constitutional jurisdiction of this Court against an order passed by the District Returning Officer.

The contention that the non‑issue of ballot papers to the voters would be included in an election dispute, which is adjudicatable through an election petition, has no substance. In an election dispute arising out of election petition, it was held by the apex Court in Jam Masooq Ali v. Shah Nawaz Junejo (1996 SCMR 426) as under:‑

"Non‑issuing of postal ballots to electors‑‑‑Effect‑‑‑Electors were thus illegally prohibited from exercising their right of franchise although their applications for issuing of ballot papers were received by the Returning Officer in time‑‑‑Result of election was thus materially affected by non‑issuing of postal ballots."

In the case of Mirza Hassan Mahmood v. Chaudhry Muhammad Yousaf and others (2000 SCMR 1678), the apex Court held as under:‑

"Moreover, the failure on the part of the respondent‑Authorities to issue appropriate notification after the conclusion of the election‑process was duly noticed in the impugned judgment dated 25‑6‑1998 and issuance of a writ/order in the nature of mandamus to act in accordance with law now, most certainly advance the cause of justice. We are not impress with the arguments of the learned counsel to the effect that failure of the voters to participate in the election process be equated with provisions of an opportunity to the PLCEA to direct a re‑poll in one of the polling station. It has already been observed in Para.7 above that the order/notification dated 30‑5‑1998 was beyond the contemplation of rule 28 (ibid). Even the failure on the part of voter to turn up in an election cannot, by any stretch of imagination, take the clock back to `pre‑election‑era' for resort to section 17 of the Ordinance."

23. In the above said case, on the basis of the report submitted by the Presiding Officer to the Returning Officer, an order was passed through a notification for fresh poll at the particular polling station. The order of re‑poll was challenged before the High Court through a writ petition which succeeded and the judgment passed by the High Court was to the following effect:‑

"8 Where the election had been held, the dispute in respect of the election could be called in question before the Election Tribunal. It was further held that a provision for notification should not be interpreted as a condition precedent to the holding of an office. In such a case, it was laid down that an election result could not be nullified where some voters had boycotted the election while the others remained absent. No premium was put on default or non‑participation of some voters in a democratic process nor who followed the law could be deprived of their rights having followed the due process.

9. Even otherwise, no exceptional circumstances were shown so as to justify the passing of the impugned order by the learned Election Authority.

10. For the foregoing reasons, the impugned order, dated 30‑5‑1998 passed by the learned Election Authority is declared to be without lawful authority and of no legal effect. Consequently, the result of the election of electoral Unit No.62 (Union Council Badhana, Zila Council, Rawalpindi) may be notified in accordance with law. The writ petition is allowed with no order as to costs."

The judgment of the High Court was challenged before the apex Court on the ground that the order of re‑poll passed by the Election Authority was illegal which would tantamount to deny the right of franchise to as many as thirteen hundred voters and that too at the cost of the petitioner who might winning the election. The apex Court while upholding the judgment of the High Court refused to grant of leave.

24. The proposition involved in the present petition is similar to that of the above referred case reported in 2000 SCMR 1678. The failure of the voters to turn up at the Polling Station or to participate in the election or the failure of the functionaries of Election Commission to provide the ballot papers during the polling hours would neither materially effect the result of the election nor would be a valid ground for issuance of a direction of re‑poll in exercise of the powers under rule 29 of the Punjab Local Government Elections Rules, 2000. The defeating candidate after the declaration of official result can conveniently challenge the election through an election petition on such grounds and seek a declaration that the election as a whole vas void, but in any case rule 29 of the ibid. Rules cannot be invoked for the benefit of losing candidate.

25. In the light of the law laid down by the apex Court in the judgment referred above, the judgment in Muhammad Yaqoob v. Zafar Khan (1986 SCMR 1401) being distinguishable would not be applicable to the facts of the present case. The Chief Election Commissioner being responsible of holding the elections in his supervisory jurisdiction under section 12 of the Punjab Local Government Elections Ordinance, 2000, may require any person or authority to perform such functions or, render such assistance for the purpose of elections including preparation of electoral rolls under the Ordinance and the Election Commission may also authorize any of his officers to exercise any of the powers and to perform any other functions under this Ordinance. Under section 12 of the Punjab Local Government Ordinance, 2000, the Chief Election Commissioner does not enjoy any power of review of an order passed by the functionaries of the Election Commission during the process of election and instead has to supervise and control the election matters and conduct of the election through its functionaries under the scheme of Local Government Elections Ordinance, 2000, read with Punjab Local Government Elections Rules, 2000, on the completion of process of the scrutiny of the nomination papers. The election process is completed in the following manner provided in the Local Government Elections Rules, 2000:‑

"Rule 28. Hours of the poll .‑‑The Returning Officer shall subject to any direction of the District Returning Officer fix the hours during which the poll shall be taken and given a public notice in Form IX of the hours so fixed.

Rule 29. Stopping of poll .‑‑ (1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if‑‑‑

(i) 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 rule 28; or

(ii) 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 lost, or is damaged or tampered with to such an extent that the results of the poll at the polling station cannot be ascertained.

(2) Where a poll has been stopped under sub‑rule (1), the Returning Officer shall immediately report to 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.

(3) Where an order under subsection (2) has been made, the Returning Officer shall notify the day for a fresh poll and fix the place at which and the hours during which such fresh poll shall betaken.

(4) At a fresh poll taken under sub‑rule (3) at a polling station, all electors entitled to vote thereto shall be allowed to note and no vote cast at the poll stopped under sub‑rule (1) shall be counted: and the provisions of the Ordinance and these rules shall apply to such fresh poll.

Rule 31. Admission to polling station. ‑‑‑The Presiding Officer shall subject to such instructions as the Chief Election Commissioner or a District Returning or Returning Officer may, given in this behalf, regulate the number of electors to be admitted to the polling station at a time and exclude from the polling station all other persons except‑‑‑

(a) any person on duty connection with the election;

(b) the contesting candidates, their election agents and polling agents and

(c) such other persons as may be specifically permitted by the Returning Officer.

The maintenance of order at the polling station is the responsibility of the Presiding Officer:‑

Rule 32. Maintenance of order at the Polling station .‑‑‑(1) The Presiding Officer shall keep order at the polling station and may remove or cause to be removed any person who commits misconduct at the polling station or fails to obey and lawful orders of the Presiding Officer.

(2) Any person removed under sub‑rule (1) from a polling station shall not without the permission of the Presiding Officer, again enter the polling station during the poll and shall if he is accused of an offence in a polling station. be liable to be arrested without warrant by a police officer.

(3) The powers under sub‑rule (2) shall be so exercised not to deprive an elector of an opportunity to cast his vote at the polling station at which is entitled to vote.

The election through secret ballots and voting procedure:‑

Rule 33 Election by secret ballot. ‑‑‑An election under these rules shall be decided by secret ballot and a voter shall cast his vote by inserting, in accordance with the provisions of these rules, in the ballot box, a ballot paper which shall be in Forms‑X(A), X(B), X(C) or X(D) and bear the common symbols which shall include those of the contesting candidates.

Rule 34. Voting procedure. ‑‑‑(1) Where the elector presents himself at the polling station to vote, he shall show his national identity card to the Presiding Officer, who shall after satisfying himself about the identity of the elector, issue him ballot papers:

Provided that the elector will not be issued more than one ballot paper each of different colour for different categories of candidates to be determined by the Chief Election Commissioner.

(2) Before a ballot paper is issued to an elector‑‑‑

(i) the number and name of the elector as entered in the electoral roll shall be called out;

(ii) a mark shall be placed on the electoral roll against the number and name of the elector to indicate that ballot paper has been issued to him;

(iii) the ballot paper shall on its back be stamped with the official mark and signed by the Presiding Officer; and

(iv) the number of the elector on the electoral roll shall be written on the counterfoil by the Presiding Officer who shall also stamp the counterfoil with the official mark and also obtain the thumb‑impression of the elector on the counterfoil.

(3) A ballot paper or ballot papers shall not be issued to a person who refuses or is unable to produce a national identity card.

(4) If a contesting candidate or his election or polling agent alleges that an elector to whom a ballot paper or ballot papers are about to be issued already has one or more ballot papers in his possession, the Presiding Officer may require the elector to satisfy him that he does not have any other ballot paper in his possession and may also take such measures as he thinks fit to ensure that such elector does not insert more ballot papers than issued to him in the ballot box.

(5) Where an elector is blind or physically otherwise so incapacitated that he cannot vote without assistance of a companion, Presiding Officer shall allow him to be accompanied by a companion not being a candidate or agent of a candidate and in case the disability in such that elector cannot mark the ballot paper or ballot papers himself, the person accompanying the elector may mark the ballot paper as indicated by him.

(6) The elector, on receiving the ballot paper or ballot papers, shall‑‑‑

(i) forthwith proceed to the place reserved for marking the ballot paper;

(ii) put the marking aid rubber stamp on the ballot paper at place within the space containing the symbol of contesting candidate of his choice; and

(iii) after he has so marked the ballot paper fold and insert it in the ballot box.

(7) The elector shall vote without undue delay and shall leave the polling station immediately after he has inserted his ballot paper in the ballot box.

Voting after close hours is permitted under rule 38.

Rule 38. Voting after close of poll. ‑‑‑No person shall be given any ballot paper or be permitted to vote after the hour fixed for the close of the poll, except the persons who at that hour are present within the building, room, tent or enclosure in which the polling station is situated and have not voted but are waiting to vote.

The procedure at the close of the poll is provided under Rule 39.

Rule 39 Proceedings at the close of the poll. ‑‑‑The Presiding Officer shall count the votes immediately after the close of the poll, in the presence of such of the contesting candidates election agents and polling agents as may be present.

(2) The Presiding Officer shall give such of the contesting candidates, election agents and polling agents as may be present, reasonable facility of observing the count and give them such information with respect thereto as can be given consistent with the orderly conduct of the count and the discharge of his duties in connection therewith.

(3) No person other than the Presiding Officer and Polling Officer, any other person on duty in connection with the poll, the contesting candidates, their election agents and Polling Agents shall be present at the count.

(4) The Presiding Officer shall‑‑‑

(i) open the used ballot box or ballot boxes and count the entire lot of ballot papers taken out therefrom;

(ii) open the packet labelled "challenged ballot paper" and include the ballot papers therein in the Court;

(iii) count the votes cast in favour of each contesting candidate excluding from the count the ballot papers which bear

(a) no official mark;

(b) any writing or any mark other than the official mark and the mark of "marking aid rubber stamp" or to which a piece of paper or any other object of any kind has been attached;

(c) no mark of "marking aid rubber stamp" indicating the contesting candidate for whom the elector has voted; or

(d) any mark from which it is not clear for whom the elector has voted;

Provided that a ballot paper shall be deemed to have been marked to favour of a candidate if the whole or more than half of the area of the mark of "marking aid rubber stamp" appears clearly within the space containing the symbol of that candidate.

(e) And where the mark of "marking aid rubber stamp" is divided equally between two such spaces, the ballot paper shall be deemed to be invalid.

(5) The Presiding Officer may re‑count the votes‑‑‑

(i) of his own motion if he considers it necessary; or

(ii) upon the request of a contesting candidate or an election agent present, if, in his opinion, the request is not unreasonable.

(6) The valid ballot papers cast in favour of each contesting candidate shall be put in separate packets and each such packet shall be sealed and shall contain a certificate as to the number of ballot paper put in it and shall also indicate the nature of the contents thereof, specifying the name and symbol of contesting candidate to whom the packet relates.

(9) The ballot papers excluded from the count shall be put in a separate packet indicating thereon the total number of ballot papers contained therein.

(8) The packets mentioned in sub‑rules (6) and (7) shall be put in a principal packet, which shall be sealed by the Presiding Officer.

(9) The Presiding Officer shall, immediately after the count, prepare a statement of the count in Form XIII showing therein the number of valid votes polled by each contesting candidate and the ballot papers excluded from the count.

(10) The Presiding Officer shall also prepare in Form XIV a ballot paper account showing separately‑‑‑

(i) the number of ballot papers entrusted to him;

(ii) the number of ballot papers taken out of the ballot box or boxes and counted;

(iii) the number of tendered ballot papers;

(iv) the number of challenged ballot papers;

(v) the number of spoilt ballot papers; and

(vi) the number of un issued ballot papers. .

(11) The Presiding Officer shall if so requested by any candidate or election agent or polling agent present, give to him a certified copy of the statement of the count and the ballot paper account.

(12) The Presiding Officer shall seal in separate packets:‑

(i) the un issued ballot papers;

(ii) the spoilt ballot papers;

(iii) the tendered ballot papers;

(iv) the challenged ballot papers;

(v) the marked copies of electoral rolls;

(vi) the counterfoils of the ballot papers;

(vii) the tendered votes list;

(viii) the challenged votes list; and

(ix) such other papers as the Returning Officer may direct.

(13) The Presiding Officer shall obtain or each statement and packet prepared under this rule the signatures of such of the contesting candidates or their election agents or polling agents as may desire to sign it.

(14) A person entitled to sign a packet or statement under sub‑rule (13), may, if he so desires, also affix his seal on it.

(15) After the close of the proceedings under the foregoing sub‑rules, the Presiding Officer, shall, in compliance with such instructions as may be given by the Returning Officer in this behalf, cause the packets, the statement of the count and the ballot paper account prepared by him to be sent to the Returning Officer together with such other records as the Returning Officer may direct.

The consolidation of result and equality of votes.

Rule 40. Consolidation of results .‑‑‑The Returning Officer, shall consolidate in Form XV the results of counts furnished by the Presiding Officer.

(2) The Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place for the consolidation of the results.

(3) Before consolidating the results of the count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for‑ whom the vote has been cast thereby.

(4) The Returning Officer shall include the votes cast in favour of each contesting candidate in the consolidated statement except those, which he may reject or any, of the grounds mentioned in clause (iii) sub‑rule (4) of rule 39.

(5) The ballot papers rejected by the Returning Officer under sub‑rule (4) shall be shown separately in the consolidated statement.

(6) The Returning Officer shall not re count the valid ballot papers in respect of any polling station unless:‑

(i) the count by the Presiding Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or

(ii) he is directed to do so by the Chief Election Commissioner or the District Returning Officer.

Rule 41. Equality of votes. ‑‑‑Where after consolidation of the results of the count under rule 40, except for the offices of Zila Nazims and Naib Nazims as joint candidates securing highest votes but not securing majority of total votes of members of Union Councils, it is found that there is equality of votes between two or more contesting candidates and the addition of one vote for one such candidate would entitle him to be declared elected, the Returning Officer shall forthwith draw a lot of respect of such candidates and the candidate on whom the lot falls shall be deemed to have received the highest number of votes, entitling him to be declared elected.

(2) The lot shall be drawn in the presence of such of the contesting candidates and their election agents as may be present.

(3) The Returning Officer shall keep a record of the proceedings in writing, and obtain thereon the signatures of such candidates and election agents as have been witnesses to the proceedings.

The result is declared under rule 42 of the above said Rules.

Rule 42 Declaration of results. ‑‑‑Save as provided in sub‑rule (4) of rule 39 the Returning Officer shall, after consolidation of results under rule 40, or after the drawal of the lot under rule 41, declare by public notice, the names of such contesting candidate, or candidates in case of multi‑member wards as have or are deemed to have received the highest number of votes.

(2) The public notice shall contain the name of and the total number of votes received by each contesting candidate.

(3) The Returning Officer shall, immediately after publication of the notice under sub‑rule (1), submit to the District Returning Officer, a return of the election Form‑XVI together with a copy of the consolidated statement.

(4) In case of elections of Nazim and Naib Nazim if the joint candidates of a Zila Council securing highest votes fail to secure majority of the total votes of the members of Union Councils in the district the name of joint candidates securing the highest and the second highest votes shall be sent to the Chief Election Commissioner, immediately after the consolidation of results in Form XVI.

(5) The District Returning Officer shall arrange to have names of the returned candidates of an electoral ward in a council published in the official Gazette.

26. In case of election dispute a remedy of election petition has been provided under rule 70 of the Local Government Elections Rules. 2000, before a Tribunal established under rule 73 of the said rules and the procedure to be followed for conducting of the petition is provided under rule 76 of the rules in question. The Tribunal under rule 78 of the said rules has all powers of Civil Courts as envisaged under sections 480 and 482 of the Code. of Criminal Procedure, 1898 (Act V of 1898). The election of a returned candidate can be declared void on any ground mentioned in rule 81 and the Tribunal can declare a person other than a returned candidate elected: Under rule 82 the Tribunal can declare the election as a whole void. Under rule 83 on the following grounds, election of a returned candidate can be challenged.

Rule 83. Ground for declaring election as a whole void. ‑‑‑The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of‑‑‑

(a) the failure of any person to comply with the provisions of the Ordinance or the Election Rules; or

(b) the prevalence of extensive corrupt or illegal practice at the election.

27. The scheme of law would show that before the announcement of the result and the issue of notification of result, an order passed by the functionaries of Election Commission of Pakistan in their administrative capacity in the intervening period i.e. from the date of completion of the process of the scrutiny of the nomination papers and the issue of list of qualified candidates till the date of issuance of notification of the returned candidate effecting the result of the election or as a result of an order a person is de‑franchised, the person aggrieved of such an order is remediless under the Local Government Election Ordinance and Rules,2000. The election, functionaries are required to strictly follow the provisions of the Ordinance and the Rule, to ensure fair, impartial and transparent election and in the performance of their duty have to be careful that the right of a contesting candidate in the election is not effected by their act or omission and if such an act or omission is of the nature which infringes right of a contesting candidate and may result in de‑franchise him and against which no remedy is available, such person cannot be refused the Constitutional remedy on the ground that remedy of election petition was available under the law.

28. In nutshell, the remedy provided under the Rules to challenge the election through an election petition would not be a proper remedy for the injustice if any being done to a candidate during the election on declaration of result, the election of successful candidate can be challenged on any ground including interruption, obstruction or stoppage of poll or non‑issue of ballot papers.

29. While resuming the factual controversy, the perusal of the reports of the Presiding Officers submitted to the Returning Officers on the next day of the close of polling would show that no such incident of interruption or obstruction was reported during the polling hours and consequently rule 29 of the Punjab Local Government Elections rules, 2000, would not be invokeable. The election was held on 2‑7‑2001 and the scheduled time of polling was from 8.00 morning to 8‑00 evening whereas the Returning Officer of Union Council 39, Rawlapindi City submitted report regarding the interruption, obstruction and shortage of ballot papers at 2‑30 a. m. on 3‑7‑2001. The report of the District Returning Officer submitted to the Chief Election Commissioner on the basis of report of Returning Officer is not supported by the reports of the Presiding Officers of polling stations Nos.54, 58 and 59 and under rule 29 of the Rules in question, the Returning Officer was supposed to proceed on the basis of the reports submitted by the Polling Officers or the Presiding Officers, as the case may be. The basis of the report submitted by the Returning Officer much after the close of the poll regarding interruption, obstruction and shortage of ballot papers was not satisfactory to invoke the provisions of rule 29 of the ibid Rules and the District Returning Officer without verifying the correct position withheld the counting with the direction of re‑poll. Undoubtedly, the District Returning Officer under rule 29 of the abovesaid Rules can withhold the counting and direct re‑poll at a polling station before the declaration of result but for such an action, there must be positive material through the reports of the field staff deputed at the polling stations. In the present case, no such report was sent by the Presiding or Polling Officers during the polling hours. The Returning Officer as well as the Polling Officers and Presiding Officers have submitted their reports subsequent to the close of the polling which would not be relevant to take an action under rule 29 of the Punjab Local Government Elections Rules, 2000. The reports in question without proper scrutiny through the process of law cannot furnish a positive proof of interruption or obstruction at the polling stations to proceed under rule 29 of the Local Government Election Rules, 2000. The District Returning Officer on the basis of general reports and the complaints directed re‑poll at three polling stations of Union Council No.39, Rawalpindi City after announcement of unofficial result at the said polling stations, according to which, the petitioner was declared successful at Polling Stations Nos.58 and 59 whereas the result at Polling Station No.54 was not yet declared. The counting at the above‑said polling stations was completed in presence of polling agents of the candidates and under their signatures the result was prepared and announced therefore, in the circumstances instead of issue of direction for re‑poll at these polling stations, the proper course for the District Returning Officer was to proceed with the counting and declare the result as provided under the ibid Rules as the result of the returned candidate would be challenge able on any ground through an election petition.

30. The perusal of the material placed on record would show that the answers to the following material questions are not traceable: ‑

(i) How many voters were deprived of from casting their votes?

(ii) At what time the polling was stopped and what time was consumed in its restoration?

(iii) How many ballot papers were issued and how many were found missing?

(iv) What was the number of defective ballot papers and what was the shortage and who was responsible for such shortage and in what manner?

(v) What was the percentage and overall ratio of the polling at the polling stations in question and the remaining polling stations and in that manner the process of voting was affected. The pivotal question for determination would be that as a result of alleged interruption and abstraction, in what manner the election was disturbed and the result was affected.

It may be observed that the disturbance in question being a question of fact needs proof through positive evidence.

The general complaints of the nature as in the present case would not be sufficient to pass such an order under rule 29 of the Local Government Elections Rules, 2000. The material relied upon by the District Returning Officer being not confidence‑inspiring would not provide a valid ground to invoke the power under the ibid Rule and the order impugned in this petition being not supported by any convincing material would be deemed to have been passed without lawful authority. The Chief Election Commissioner without conducting an independent inquiry and considering the question of application of rule 29 of the Local Government Elections Rules, 2000, in the given situation affirmed the order of re‑poll passed by the District Returning Officer on the basis of reports submitted to him by the Returning Officer. The failure to consider the question whether the District Returning Officer has properly exercised his powers as per direction of law and whether the order of re‑poll would be a valid order in the eyes of law would render the order of Chief Election Commissioner as coram non judice. The power exercised by the Chief Election Commissioner in his supervisory jurisdiction was discretionary in nature and was not exercised as an appellate or revisional authority under the Statute, therefore, in absence of any specific rule or enacted law to provide a remedy before the Chief Election Commissioner against such an order passed by the District Returning Officer, there would be no prohibition for the petitioner from filing such an application before the Chief Election Commissioner and upon failure he could competently invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Under the Constitution, no person shall be prevented from or to be hindered in doing with which he is not prohibited by law. The Chief Election Commissioner being the Controlling Authority of Local Bodies election would be under an obligation to look into the legality and the propriety of the order of his subordinate as beneficiary of the powers and see that no injustice is done with the contesting candidates. The discretionary powers under the Statue must be exercised in a manner that no one is caused prejudice. The apex Court in Chairman, Regional Transport Authority v. Pakistan Mutual Insurance Company, Rawalpindi (PLD 1991 SC 14) observed as under:‑

The nature of such a power and the duties appurtenant to its exercise have been dealt with in American Jurisprudence 2nd Edition, Volume 63‑A (Public Officers and Employees) section 7, 308, 315 and 317 in the following words:‑

"A public office is a public agency or trust created in the interest and for the benefit of the people, and since an incumbent of a public office is invested with certain powers and charged with certain duties pertinent to sovereignty, the powers so delegated to the office are held in trust for the people and are to be exercised in half of the government or of all citizens who may need the intervention of the officer. Such trust extends to all matters within the range of the duties pertaining to the office. In other words, public officers are but the servants of the people and not their rulers. A public officer is amenable to the rule which forbids an agent or trustee to place himself in such an attitude towards the principle or cestui que trust as to have his interest conflict with his duty act must be performed the law contemplates that the duty must be performed within a reasonable time. A public official who undertakes to perform an act, even an act, which is completely discretionary, must do so reasonably and in the complete good faith within such delay as, would frustrate its ultimate objective One who accepts a public office does so cum onere, or with the burden, and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to performs all the duties of the office, and, while he remains in such office, the public has the right to demand that he perform such duties. The acceptance of the every public office implies an agreement on the part of the officer that he will execute its duty with diligence and fidelity. The duty of a public officer to fulfil the obligation of his office should take precedence overall other matters ....... Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where right of individuals may be jeopardized by his neglect. In other words, he is bound virtue official, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercised in the management of their own affairs."

Wherever wide worded powers conferring discretion are found in statute, there always remains the need and the desirability to structure the discretion and the need for this has been pointed out in the Administrative Law test by Kenth Culp Davis:

`Structuring discretion means, regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice ..The Seven instruments that are most useful in the structuring of discretionary power are open plans, open policy, statements, open rules, open findings, open reasons, open precedents, and fair informal procedure When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standard at the earliest feasible time, and then as circumstances permit should further confine their own discretion through principles and rules. The movement from vague standard to definite standard to broad principles to rule may be accomplished by policy statements in any form, by adjudicatory opinion, or by exercise of the rule making power .....

In our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise has been taken to be an enhancement of the powers and it gives that impression in the first instance but where the authorities failed to rationalize it and regulate it by Rules, or Policy, statement of precedents, the Courts have to intervene more often, then is necessary, apart from the exercise of such power appearing arbitrary and capricious at time."

The apex Court in another case reported in Muhammad Iqbal Khokhar and 3 others v. Government of the Punjab through Secretary to Government of the Punjab Lahore and 2 others (PLD 1991 SC 35) while dealing with the service matter observed as under:‑

"Section 22 of the Punjab Civil Servants Act, 1974, since it gives the Governor great latitude to act according to his personal judgment falls in the field of that special power called `discretion'. It would not be out of place here to saw a few words about this enchanting field of authority. The word `discretion' is associated with the action of separating discerning or judging. It deals with the liberty or power of deciding or acting according to one's own personal view, conscience or judgment, as one thinks fit, the controlled or uncontrolled power to decide or dispose of a matter. In legal interpretation discretion, therefore, is sometimes as illusive as the shadow, which stalks the provisions that has to be interpreted, and some times as firm as provision which throws up the illusion. In one case it may permit uncontrolled liberty or power to decide a matter or act on one's own personal pleasure view, choice or judgment. In another, it may compel a person to decide or act within the stricter or controlled limits allowed by law or rules of procedure or subject to conditions precedent or subsequent laid down for the exercise of the power. Between the two polarities, discretion has never acquired any settled or established meaning which can be applied universally in any given case. Each case where discretion is to be exercised has to be judged according to its own facts. The nature of this power in the particular section or rule, the object of the said section or rule, the scope of the Act or the rule where the power appears, or the conditions and limitations which define or limit its exercise, or the conditions precedent which have to be fulfilled before it can operate, all require to be carefully examined, before any idea can be formed as to how it can be exercised."

Since we are dealing with the rights of civil servants under the Punjab Civil Servants Act, 1974, and the various rules that are framed thereunder or are already in force, the word 'just' mean that which is legal and proper under the said Act or the rules or that which imports the exercise of good judgment or discriminatory appraisal within the bounds of reason and which negatives the presence of any arbitrary, unreasonable or capricious determination, or anything which causes injury to a person. The word 'equitable' means that which is founded in equity, i.e. that which is fair, reasonable, unbiased, impartial, even handed, the constitution of a matter according to its reason and spirit. Thus, the section creates a balance. The learned Governor in appraising the case of a civil servant, can ignore limiting or abridging factors contained in the Act or in any rule but he must confine himself within the limits of justice and equity for no sooner he finds he is about to transgress those limits, a cut off point arises and he must control impetuosity and stay further transgression, so that the purpose of the law or rule may not be flagrantly violated or defeated under the guise of its exercise. What is just and equitable, would vary in each case, depending upon its fact and circumstances. "

In case of Government of N‑W.F.P. v. Majee Flour and General Mills Mardan (1997 SCMR 1804), the apex Court observed as under:‑

"In his Treatise 'Discretionary Powers' which is Legal Study of Official Discretion D.J. Galligan has acknowledged that the general principles that discretionary decisions should be made according to rational reasons means (a) that there be findings of primary facts based on good evidence, and (b) that decisions about the facts be made for reasons which serve the purposes of the statute in an intelligible and reasons manner'. According to the celebrated author, the actions, which do not meet these threshold requirements, are arbitrary, and may be considered a misuse of power. In Ammanullah Khan and others, v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092) Shafiur Rehman, J who was sitting in the Full Bench ha very ably propounded by now well known doctrine of `structuring the discretion' in the following paragraph of the report at page 1147:‑

"Wherever wide worded power conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Clup Davis (page 94) that the structuring the discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the High quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide‑worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or policy statements or precedents, the Courts have to intervene more often than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times."

31. In paras. 2 and 4 of the order of Chief Election Commissioner, it is mentioned that the polling was held peacefully without any complaint and the voters present at the polling stations cast their votes and the counting was peacefully done. However, the counting process of Polling Station No.54 was stopped by the District Returning Officer' on 3‑7‑2001. The counting at Polling Stations Nos.58 and 59 was done with the consent of the polling agents of the parties by the Presiding Officers on 2nd of July, 2001 without any complaint. The Chief Election Commissioner in the light of the report of the District Returning Officer incorporated in para.8 of the order observed in paras. Nos.6 and 8 of the order as under:‑

"After going through the record I do not see any substance in the present petition. The Presiding Officer of Polling Station No.54 has stated that the polling was stopped due to the shortage of ballot papers and it was not possible to continue the poll. He has also stated that polling had to be stopped on account of law and order problem.

The Presiding Officer of Polling Station No.58 has also stated that at about 8‑00 p.m. the polling had to be stopped due to shortage of ballot papers but ballot papers could not be received uptill 10‑20 p.m. Thereafter, with the consent of the contesting candidate the ballot papers were counted and result was announced.

The Presiding Officer of Polling Station No.59 has stated that all voters, who were present at the polling station up till 8‑00 p.m. had cast their votes and then the result was announced.

The learned Returning Officer in his parawise comments has stated as under:‑‑

"The polling was not peaceful as there were general reports in Union Council No.39 of stoppage of polls due to shortage of ballot papers including the polling stations where the re‑poll has been ordered. It is further incorrect to say that on the next morning of 3‑7‑2001 the process of counting was stopped and the candidates were informed that it would be completed when the. Returning Officer issues direction for the same. The fact is that the Returning Officer alongwith 3/4 other judicial officers was directed to reach Polling Station No.54 and others where according to various reports received on telephone from the Administration the polling was stopped due to shortage of ballot papers and as the Returning Officer was to supply said ballot papers at said polling stations which exercise had been undertaken at about 4‑30/5‑00 p.m. by the Returning Officer at said polling stations where the trouble was being faced by the Presiding Officers due to shortage of ballot papers to rectify the same through supply of additional ballot papers when time had already been extended by the Election Commission of Pakistan up to 8‑00 p.m. The Returning Officer then informed me on telephone that he and his staff was made a hostage at Polling Station No.54 by the unruly mob who was demanding stoppage of polls on the ground that they would not permit him to supply additional ballot papers to the Presiding Officer simply because the voters had gone hack after wait for long time and they could not bring back the voters once again. The law and order situation at said polling station was quite worse as was also receiving reports from the Administration on telephone where police and army was directed to reach at once to rescue the Returning Officer and his staff and others. The Returning Officer and others then came back at about 1‑00 a.m. from Polling Station No.54 where they were rescued and were not allowed to go to Polling Stations Nos.58 and 59. It was then that on the report of the Returning Officer about grave law and order situation said order was passed at about 2‑00 or 2‑30 a. m. on 3‑7‑2001 for fresh polls "

The Chief Election Commissioner concluded that the factual position narrated on behalf of petitioner contradicted by the report of the Returning Officer and that due to the rowdy elements outside the Polling Stations it was not possible to cast the votes by the voters.

32. The order passed by the District Returning Officer and the Chief Election Commissioner to contradicted by the reports submitted by the Presiding Officers at the concerned polling stations. This is not deniable that the Returning Officer submitted report on 3rd of July, 2001, whereas the polling was held on 2nd of July, 2001. There is no explanation that if the Returning Officer had any such information as contained in the report, why he did not convey it immediately to the District Returning Officer. The report does not contain a specific instance of any interruption, obstruction and disturbance at any Polling station during the polling hours. The report of rowdyism was not made by any Polling Officer/Presiding Officers of the concerned polling stations during the polling hours. The Polling Staff functioning at Polling Station No.54 lodged no report regarding the hostages. Under the Rules, the voters who are present at the polling stations are allowed to cast their votes and it is not permissible that the voters should be called from their houses to cast the votes after the polling hours. The Returning Officer in his report submitted on 3rd of July, 2001, stated that the disturbance had taken place at Polling Station No.54 but he did not mention any such disturbance at Polling Station Nos.58 and 59 in his report. The report of the Returning Officer is suffering from the following defect:

(1) It is contradictory to the report of the Polling Staff, i.e. Polling Officers and Presiding Officers of the concerned police stations.

(2) The report in question was not made during the polling hours and the reports submitted by the Returning Officer to the District Returning Officer on 3‑7‑2001 contained that the ballot papers of various categories at polling stations Nos.54, 58, 59 of Union Council No.39, Rawalpindi, fell short and despite all efforts, the deficiency could not be made. The Returning Officer has further stated that in the evening when he visited the polling stations, some persons extended him threats of life, therefore, the poll at these polling stations be stopped.

33. The report does not contain the detail that what number of ballot papers fell short and also does not suggest that who extended threats to him and what action was taken by him when the threats was being extended to him and how many voters were present at the polling stations and in what manner the contesting candidates were involved in such disturbance, if any. The Polling Officers and the Presiding Officers of the concerned polling stations have categorically stated that no such disturbance took place inside the polling stations. The Returning Officer also did not mention that such disturbance had taken place inside the polling stations or due to such disturbance the votes were polled below the normal ratio. The disturbance if any outside the polling stations among the voters would not be relevant and provide a valid ground for taking action under rule 29 of the Punjab Local Government Elections Rules 2000, and that too subsequent to the close of the polling. The perusal of the letter written by the District Returning Officer to the Provincial Election Commissioner on 3‑7‑2001 would show that the District Returning Officer on the basis of the report of the Returning Officer requested for fresh poll at these Polling Stations of Union Council 39, Rawalpindi City. The Provincial Election Commissioner vide letter, dated 5th of July, 2001, informed the Secretary Election Commissioner of Pakistan, Islamabad as under‑‑

"Moreover, it was intimated by the District Returning Officer Rawalpindi, in the evening of 2‑7‑2001 that there is no need for re- polling at the abovementioned three polling stations as more than 50% votes were cast at these polling stations. This being the position, I do not agree with the reports submitted by the Returning Officer of Union Council No.39. Rawalpindi and District Returning Officer, Rawalpindi. "

Later, through another letter of even date, the Provincial Election Commissioner, Punjab, in the light of the request made by the District Returning Officer through Letter bearing No.171 dated 3‑7‑2001 for holding fresh poll at three Polling Stations of Union Council 39, Rawalpindi City, recommended for issuance of notification for re‑poll at the said polling stations on 10‑7‑2001.

34. The conflicting reports of the different functionaries of the Election Commission, of Pakistan relating the matter would create a reasonable doubt regarding the actual interruption, obstruction at the concerned polling stations to justify the invocation of powers by the District Returning Officer under rule 29 of the ibid. Rules as the information conveyed to him was hearsay and reports given to him were not based on any direct evidence and consequently the decision taken by the District Returning Officer vide order dated 3‑7‑2001 and affirmed by the Chief Election Commissioner of Pakistan on the basis of such vague facts contained in the reports would not serve the purpose of Statute in an intelligible and reasonable manner, therefore, the action taken would not meet the requirement of law and would be considered as misuse of powers.

35. The reasons given in pursuant to the short order dated 16‑8‑2001 shall be treated as part of this judgment which reads as follows:‑

"For the reasons to be recorded later, I pass the following order:‑

In this petition, the petitioner has challenged the legality of the order dated 3‑7‑2001 passed by the District Returning Officer and affirmed by the Chief Election Commissioner. The petitioner and the respondents Nos.4 to 10 contested the election for the seats of Nazim and Naib‑Nazim of Union Council No.39, Rawalpindi City, held on 2nd of July, 2001. The District Returning Officer vide order dated 11‑7‑2001 on the report of even date submitted by the Returning Officer while exercising the powers under Rule 29 of the Punjab Local Government Elections Rules, 2,000, withheld the counting of the said Union Council with the direction of re‑poll at Polling Stations No.54, 58 and 59. The petitioner has called in question the said order to have been passed in contravention of the ibid Rules.

2. The pivotal questions amongst the issues raised for and against this petition have been examined in detail with reference to different provisions of the Punjab Government Ordinance, 2000, read with Punjab Local Government Rules, 2000, in the light of the Constitutional provisions relating to the Election Commission of Pakistan and the powers of judicial review of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the election matters.

3. The objection relating to the maintainability of this Constitutional petition and issue of writ of prohibition and certiorari against the orders of Chief Election Commissioner relating to the election disputes, it is held that Article 225 of the Constitution places no embargo on the powers of judicial review of this Court under Article 199 of the Constitution of Pakistan, 1973, in a case in which the order passed by the Election Commission of Pakistan or the Chief Election Commissioner of Pakistan, no statutory remedy is provided under the Law i.e. Punjab Local Government Elections Ordinance, 2000, and Punjab Local Government Elections Rules 2000, does not provide any remedy to challenge such an order of 3 withholding the result and direction for partial or total re‑poll or it is not an election dispute of the nature for the redressal of which election petition can be deemed to be a proper remedy and consequently an aggrieved person can invoke the, Constitutional jurisdiction of this Court to challenge such order on the ground that it was without jurisdiction, or coram non judice or was mala fide.

4. The examination of the Election, Laws would show that rule 29 of the ibid Rules is not invokeable unless an information is sent by the Polling Officer of concerned polling station to the Returning Officer regarding the interruption of obstruction of the polling of the nature that the polling cannot be resumed during the polling hours by the Returning Officer of the District Returning Officer as the case may be who under the said rule is empowered to pass an appropriate order only on the day of Poll and not subsequent to the polling day.

5. In the present case, no such report was made by any Polling Officer during the polling hours or even in the subsequent reports given by the Polling Officers of the concerned polling station there was no material of any such interruption or obstruction to justify passing of such an order.

6. Under rule 70 of the Punjab Local Government Election Rules, 2000. no election can be called in question except by an election petition by a candidate on the grounds to be taken or provided under the Rules and there is a complete procedure to deal with such petitions including the powers of Tribunal to declare the election as a whole to be void if it is satisfied that the result of the election has been materially effected by reasons of the failure of any person to comply with the provisions of the Ordinance or the Election Rules or the prevalence of, extensive corrupt or illegal practice at the election.

7. The dispute in the present case confines to the extent of withholding the result and re‑poll at three polling stations for the reasons given in the Order and shortage of ballot papers. Such dispute if any can be taken by a candidate subsequent to the announcement of the result in the election petition, therefore, there would be no justification to withholding the result and direction for re‑poll under rule 29 of the said Rules on such grounds.

8. In view of the above conclusions drawn in the background of the facts and the law discussed, I direct as under:‑

(a) The order of the District Returning Officer dated 3‑7‑2001 and order dated 11‑7‑2001 passed by the Chief Election Commissioner of Pakistan are declared to be without lawful authority and of no legal effect.

(b) The District Returning Officer or the Returning Officer, as the case may be, shall complete the process of counting of the ballot papers at Polling Stations Nos.54, 58 and 59 alongwith other polling stations of Union Council No.39, Rawalpindi City, and declare the result as provide under rule 42 of the Punjab Local Government Elections Rules, 2000.

(c) The District Returning Officer will arrange publication of the names of the returned candidates in the official Gazette.

9. This petition is allowed in the above terms with no order as to costs. "

36. Resultantly, this Constitution petition is allowed in the above terms with no order as to costs.

H.B.T./A‑419/L Petition allowed.