Haji BEHRAM KHAN vs ABDUL HAMEED KHAN ACHAKZAI and others

ORDER

NASIM HASAN SHAH, J.--This petition for leave to appeal is directed against the judgment of a Division Bench of the High Court of Balochistan passed on 10-5-1989 in C.P.No,279 of 1988.

The relevant facts briefly stated are that the petitioner herein Haji Behram Khan, Abdul Hameed Khan Achakzai, respondents Nos. 1 and 23 others were candidates for election to a seat in the Provincial Assembly of Balochistan from PB-9 Pishin IV during the general elections held on 19-11- 1988. For elections to this Constituency 57 Polling Stations were set up and the polling at these stations appeared to have passed off peacefully. However, after the conclusion of the polling the Presiding Officers of Polling Stations No,43 (Primary School Zamal; female) and No,44 (Improvised Zamal; male), apprehending some disturbance during the counting of the votes shifted the ballot boxes of these two polling stations to the office of the Assistant Commissionercum-Returning Officer Chaman for purposes of counting. Despite this precaution when the counting commenced a group of persons allegedly the supporters of Maulvi Abdul Hakim (respondent No,21) forcibly snatched all the five ballot boxes containing the votes cast at the said two polling stations and attempted to escape with them. The police and levies, however, followed them and after hot pursuit recovered two of the said ballot boxes and some election material but were unable to recover the remaining three ballot boxes. The Election Commission (respondent No,1) was thereafter informed of this situation through wireless message.

In the meanwhile, the counting which took place of the votes contained in the said two ballot boxes which were recovered by the police/levies showed that 997 votes had been cast and out of these 956 votes were found marked in favour of Abdul Hameed Khan Achakzai (respondent No,1 herein).

A further report was then sent to the Election Commission, which may be reproduced below:-- "From: The Returning Officer PB-9 Pishin IV.

To: The District Returnig Officer, Quetta.

Sub: General Election-1988 for PB-9 Pishin IV, As already reference by wireless message vide No,2558-62 dated 19-11-1988 that the ballot boxes alongwith the election material of two polling stations Zaimal No,1 and 2 bearing No,43 and 44 looted by the JUI members with the direction of Moulvi Abdul Hakim the contesting candidate of PB-9 Pishin IV on 19-11-1988 at 10-15 p.m.

(2) With the best efforts of police and levies two ballot boxes and two bags of election material recovered from the JUI members when they were running; however, according to both the Presiding Officers three ballot boxes with whole ballot papers are still missing and the case has been registered with the Chaman Police, the statements of the two Presiding Officers are enclosed herewith for your kind perusal in which both the Presiding Officers blamed on Maj. Iqbal Nabi of Pishin Scouts due to his negligence this mishap occurred.

(3) According to Police report/investigation (copy enclosed) the number of polled ballot papers which are recovered is as under: Name of contesting candidates No, of votes Ahmad Ali 1 Mehrab Khan 3 Maulvi Abdul Hakim 4 Behram Khan 3 Dr. Muhammad Esa 3 Aminullah Khan 2 Abdul Ali s/o Haji Noor Muhammad 2 Abdul Hameed Khan 956 Spoiled. 23 Total: 997 4.Keeping in view the above, the recommendation is as under:--

(1) To take drastic action against the Maj. Iqbal Nabi of Pishin Scouts for his negligence.

(2) To order for bye-election for the affected two Polling Stations No,1 Zaimal-1 and Zaimal-2.

(3) The recovered polled ballot papers may kindly be counted and result may be announced accordingly.

(Sd). Rahim Shah Abdullah Zai Returning Officer for PB-9 Pishin IV and Dated: 23-11-1988 Assistant Commissioner Chaman.

5. It is further added that the results of the 55 Polling Stations have already been sent to you and Commission according to merit the detail is as under:- Name of the contesting candidate No, of votes obtained.

Abdul Hameed Khan 5122 Naseer Ahmad Bacha Khan 3410 Haji Behram Khan 2625 Maulvi Abdul Hakeem 2469

(6) The above four candidates obtained the highest votes in the Constituency PB-9 Pishin IV.

(Sd). (Rahim Shah Abdullah Zai)

Returning Officer for PB-9 Pishin IV and Assistant Commissioner, Pishin."

In the meantime, the Returning Officer also submitted a consolidated result of the counting to the Election Commission as contemplated by Rule 28 of "The Representation of the People (Conduct of Election) Rules,1977". The relevant portion of the counting result indicating the valid votes cast in favour of the petitioner, respondent No,1 and other candidates is re-produced below:-- "Form XVII (See Rule 28)

RESULT OF THE COUNT Election to the Provincial Assembly of the Punjab, Sind NWFP & Baluchistan From:PB-9 Pishin IV. Chaman Constituency Sr.No,Name of the contesting candidates Number of valid votes polled

1. -----

2. -----

3. -----

4. -----

5. Haji Behram Khan 2625

6. -----

7. -----

8. -----

9. Haji Khudai Mir 1843

10. -----

11. -----

12. -----

13. Abdul Hameed Khan 5122"

14. -----

15. -----

16. -----

17. -----

18. -----

19. -----

20. -----

21. Maulvi Abdul Hakim 2469

22. -----

23. Nasir Ahmad Bacha 2469

24. -----

25. ----- Total number of valid votes polled:17287 Total number of rejected votes:487 Total number of tendered votes:Nil Dated: 22-11-1988 (Sd)

Returning Officer Place: Chaman PB-9 Pishin IV"

In view of the events taking place at the two polling stations aforementioned and the reports received by the Election Commission in connection therewith the contesting parties were heard by the Election Commission on 1-12-1988 and it arrived at the conclusion that in view of the said events the election of the constituency concerned could not be sustained and accordingly the same was declared null and void and the holding a fresh polls under the Representation of People Act, 1976 was directed. The order of the Election Commission is a short one and may conveniently be re- produced below:-- "BEFORE THE ELECTION COMMISSION OF PAKISTAN ELECTION IN RESPECT OF CONSTITUENCY NO. PB-9 PISHIN IV.

Present: Mr. Iftikhar Hussain Ch. Advocate for the petitioner.

Mr. M.Zafar Advocate for the respondent.

ORDER

After going through the report of the District Returning Officer, the learned counsel for respondent had to concede that in relation to Polling Stations Nos. 43 and 44 there is evidence of removal of the ballot boxes, which constitutes malpractice and in the circumstances repoll may be ordered in respect of these polling stations only.

(2) We have gone through the report of the District Returning Officer. Admittedly, three ballot boxes with all the ballot papers therein are missing regarding which a case has been registered at Chaman Police Station. There can be no better evidence of rigging and malpractice in this constituency.

(3) In the circumstances we are satisfied that it is a fit case for interference under section 103-AA of the Representation of People Act, 1976. Consequently, the result of the entire constituency is declared void and fresh polls are directed in the manner provided in section 108 of the Representation of People Act, 1976."

Abdul Hameed Khan Achakzai, respondent No,1 herein, feeling aggrieved by the aforesaid order challenged the same by filing a Constitutional Petition before the High Court of Balochistan (C.P.No, 279 of 1988).

It was contended before the High Court that the Election Commission had illegally assumed jurisdiction for declaring the polls of Constituency PB-9 Pishin-IV as void whereas the available record neither disclosed any illegality nor violation of the provisions of the Representation of People Act, 1976 or the Election Rules, especiallly when the ultimate result of the election was also not materially affected. It was also submitted that it was not disputed that the total number of votes in Polling Stations Nos. 43 & 44 (Zaimal) of PB-9 Pishin-IV were 2,782 and that after the recovery of the two Ballot Boxes containing 997 votes, 1,785 votes, at best, could not be accounted for. In these circumstances, even if total number of the unaccounted votes namely 1,785 votes were counted in their entirety in favour of any one of the contesting candidates, the total number of votes secured by him (including the aforesaid 1,785 votes) would be much less than number of votes obtained by respondent No,1. It was also submitted that the removal of ballot boxes was not attributed to Abdul Hameed Khan Achakzai, respondent No,1 herein; therefore, he could not be made to suffer for the misdeeds of a group of miscreants or the supporters of the respondents.

The learned High Court accepted these pleas and in the course of an elaborate judgment found that in the circumstances of this case the provisions of section 103-AA were not attracted. Hence, the order of the Election Commission declaring the election as null and void and ordering the re- election in the constituency in question was declared as without lawful authority. The Constitutional Petition was, acccordingly, accepted and the order of the Election Commission dated 1-12-1988 set-aside. It was further held that as on the available facts, the final result was evidently determinable on the basis of 'result counts' of 55 polling stations which clearly showed that Abdul Hameed Khan Achakzai was validly elected from Constituency PB-9 Pishin-IV, the Election Commission shall declare him as the elected candidate from Constituency PB-9 Pishin-IV.

Mr. Basharatullah, learned counsel, in support of this petition, has argued that the learned High Court was in error in considering that the Election Commission's jurisdiction under section 103-AA of the Representation of Peoples Act was not attracted in this case. Furthermore, the order of the Election Commission was not liable to interference by a Constitution Petition as such a petition was barred under Article 225 of the Constitution.

' We have given our earnest consideration to these legal contentions, but feel that it is not necessary to finally adjudicate upon them because in our opinion the order of the High Court is a just, fair and proper order which is calculated to advance the interest of justice and, therefore, this case is not a fit one for exercise of our discretionary jurisdiction to grant leave to appeal.

We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No,1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered contained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process. It has been repeatedly held by this Court that it shall not act in aid of injustice and where an order of the High Court has been passed to bring about a just, proper and fair result, this Court will not interfere.

Accordingly, we refuse to grant leave to appeal in this case and dismiss this petition.