JALAL DIN Versus ASSISTANT COMMISSIONER, BAHAWALPUR

MUHAMMAD SHARIF, J.‑‑ This constitutional petition has sought to annul the order dated 27‑10‑1983 passed by the learned Election Tribunal, Bahawalpur, who had restrained the petitioner from casting his vote in the future election till further orders.

2. The brief facts of this case are that the petitioner and Sardar Muhammad respondent No. 2 contested the election of the Local Council of Chak No. 20/DNB, Tehsil and District Bahawalpur. The petitioner was declared successful by one vote. An election petition was filed against petitioner by the defeated candidate on the ground that the petitioner had colluded with the Polling Officer and his objections were not heard. According to him the polling was closed an hour before the scheduled time, and the voters of respondent No. 2 were deprived of casting their votes. It has also been asserted in the election petition that bogus votes were cast in the presence of the Polling Officer.

3. An application for the grant of a temporary injunction was moved before the Election Tribunal which issued the impugned order against the petitioner.

4. The question whether or not the Election Tribunal had the jurisdiction to issue a temporary injunction has not been agitated. The maxim `audi alteram partem' has scrupulously been conceded by both the learned counsel for the parties. In addition to the fact that the petitioner was condemned unheard, it is proper to test the impugned order in view of the ingredients required for the issuance of the temporary injunction which are as under:‑‑

(i) A prima facie or an arguable case,

(ii) Balance of convenience,

(iii) Irreparable loss.

5. As regards prima facie or an arguable case, the allegations that the objections of the respondent No. 2 were not heard or their voters were not allowed to cast their votes towards the conclusion of the polling hours, can only be decided by adducing evidence. Even if it be assumed that there was a prima-facie case against the petitioner, the other ingredients stated supra are lacking. The respondent No. 2 shall not be able to cast his vote unless the election of the returned candidate is finally declared void. The petitioner has been restrained to cast his vote in the future election. In this manner, the balance of convenience inclines in favour of the petitioner.

6. If a returned candidate is allowed to vote in the future election, the defeated candidate shall not suffer any irreparable injury. We, therefore, accept this constitutional petition and vacate the temporary injunction issued by the learned Election Tribunal. We make no order as to costs.

M.Y.H./2768/I

Petition accepted.