MUHAMMAD YAQOOB Versus KHALIL-UR-REHMAN
This matter arises from a petition for leave to appeal against the judgment of the High Court setting aside the notification declaring the petitioner successful in the District Council, Abbottabad election for Ward No.2. The High Court had exercised constitutional jurisdiction and set aside the election on the ground that voting at one polling station was disturbed, postponed, and ballot boxes removed. The core legal questions examine whether Rule 42 of the N.-W.F.P. Local Council (Election) Rules, 1979 and Section 39-A of the N.-W.F.P. Local Government Ordinance bar a challenge to an election by means other than an election petition, whether an election petition constituted an adequate alternative remedy where controverted questions of fact existed, and whether a writ petitioner who participated in removing ballot boxes is entitled to discretionary constitutional relief. The Supreme Court granted leave to appeal to examine these questions, confirmed the interim order, and directed the matter to be heard on the present record.
- Whether Rule 42 of N.-W.F.P. Local Council (Election) Rules, 1979 and section 39-A of N.-W.F.P. Local Government Ordinance prohibit a challenge to the election by means other than an Election Petition?
- Whether an election petition was an adequate alternative remedy when pending petitions and controverted questions of fact were involved?
- Whether a writ petitioner whose agents or supporters removed ballot boxes becomes disentitled to discretionary constitutional relief?
- Rule 42, N.-W.F.P. Local Council (Election) Rules 1979
- Section 39-A, N.-W.F.P. Local Government Ordinance
1. SHAFIUR RAHMAN, J.‑‑ The petitioner was declared successful in District Council, Abbottabad election from Ward No.2 comprising 27 polling stations in all. The notification declaring him elected has been set aside by the High Court while exercising constitutional jurisdiction on the ground that the voting at one Polling Station was disturbed, postponed and ballot‑boxes had been removed by the parties themselves, their agents or supporters. It should have been completed under rule 26. The following questions require fuller examination:
(i) Whether Rule 42 of N.‑W.F.P. Local Council (Election) Rules, 1979 and section 39‑A of N.‑W.F.P. Local Government Ordinance do not prohibit a challenge to the election by means other than an Election Petition.
(ii) Whether an election petition was not an adequate alternative remedy particularly so when two such petitions regarding same elections were already pending and controverted questions of fact and of conduct of parties were involved.
(iii) Whether the boxes having been removed by the parties, their agents or supporters themselves, the writ petitioner had not become disentitled to the discretionary relief. Leave is granted to examine these questions.
2. Security Rs.2,500.
3. Interim Order already granted to continue and it is confirmed. To be heard on the present record with liberty to the parties to file additional documents.
4. M.B.A./M‑469/S Leave to appeal granted.