Haji ATTA MUHAMMAD vs Malik SHABBIR AHMAD KHAN And Another

ORDER

1. SHAFIUR RAHMAN, J.-- The petitioner's election to the Local Council Bahalikey from Halqa No.13 Mauza Phullarwan was set aside by the Election Tribunal by its order, dated 28-4-1984. The Lahore High Court dismissed the Constitutional Petition filed by the petitioner challenging the decision in limine by its order, dated 20-5-1984. The petitioner now seeks leave to appeal.

2. The finding of- fact recorded by the Tribunal in unseating the petitioner is as follows:- "In my opinion the Presiding Officer by appointing said Ghulam Rasool to issue ballot-papers leaned towards the respondent. This aspect of the matter further shows that the Presiding Officer was not impartial in the conduct of elections. There are many other factors also to show that serious irregularities were committed during the elections, which render the same void as a whole.

3. The petitioner had led evidence to show that the Presiding Officer closed the poll before the schedule the i.e. 3.45 p.m. When many had yet to cast their votes. The petitioner has attached a list of about 30 voters who were not allowed to case the vote. The number of identity cards of such voters has beer shown in the list. Another factor to be noted is that 428 ballot-papers were issued whereas 420 ballot-papers were recovered from the ballot-box. This shows that the ballot-papers were either tampered or removed from the premises. In my opinion, these irregularities have materially affected the result of poll, Lastly, the learned counsel for petitioner asserted that the Presiding Officer in presence of the petitioner did not do the counting. It is proved on the record that the counting pertaining to respondent was done immediately after the close of poll whereas that of petitioner was done 4/5 hours after the close of poll. It may be mentioned here that the petitioner immediately rushed to the Deputy Commissioner and apprised him of all the aforesaid irregularities and malpractices detailed in the application, dated 29-9-1983 which has been placed on the file."

4. The High Court after examining the law points urged by the petitioner held that:- "The Election Tribunal was justified in holding that it was not a fair election because a stranger was deputed to issue ballot-- papers."

5. The learned counsel for the petitioner contended that as the Presiding Officer was responsible for the conduct of the elections he was authorised to enlist Ghulam Rasool, a stranger and this was done with the consent of the candidate and could not be made a ground for setting aside the election of the petitioner.

6. From the finding recorded by the Election Tribunal it is clear that the association of Ghulam Rasool was held to be without lawful authority and in the context of the material on record it was also held that it had led to malpractices and irregularities at the election which A vitiated the result. On the legal plane, the High Court has also affirmed that the association of Ghulam Rasul who was entrusted the important duty of issuing the ballot-papers was unauthorised. The only factor pleaded to justify this is that the candidate had consented to it. Neither the Tribunal has held so nor does it appear from any document that such consent was accorded. On the contrary, it appears that the malpractices were immediately on the same day reported to the superior authority. There is, therefore, no merit in the petition and leave to appeal is refused.