NIAZ MUHAMMAD vs ELECTION TRIBUNAL, PESHAWAR and others
This petition for leave to appeal arises out of a judgment of the Peshawar High Court whereby an election petition filed against the success of the petitioner in the local council elections for ward No. 13 of Peshawar Municipal Corporation was accepted, the election was declared void as a whole, and re-election was ordered. The core legal questions involve the propriety of setting aside concurrent findings of fact of the Election Tribunal in writ jurisdiction and whether grounds existed under the relevant legal provisions to declare the election void. The Supreme Court of Pakistan held that the contentions raised regarding the unjustified interference with findings of fact and the application of law by the High Court required consideration. Consequently, the Court granted leave to appeal to examine these matters and suspended the operation of the impugned judgment pending the final disposal of the appeal.
- Whether the High Court can interfere with findings of fact recorded by an Election Tribunal in the exercise of its writ jurisdiction?
- Under what circumstances can an election be declared void as a whole under the local council laws?
- Whether the violation of Rule 26 regarding re-election at a polling station was properly appreciated by the High Court?
- Section 13(h), N.-W.F.P. Local Councils Ordinance 1979
ORDER
' NAIMUDDIN, J.--The petitioner and respondents Nos. 5 to 8 contested the election for ward No,13 of Peshawar Municipal Corporation, Peshawar, held on 30-11-1987 under the Local Councils Ordinance.
The petitioner was declared successful.
2. Haji Rehman and Zaiwar Shah, respondents Nos. 5 and 8 respectively filed election petitions, which were consolidated. It was alleged by them that the election could not proceed and all the candidates including the petitioner, in view of the prevailing situation, made an application to the Returning Officer for ordering the cancellation of the election. They further alleged that a large number of voters present in the polling station were deprived of their right and they could not cast their votes after 2-30 p.m. The petitioner contested the election petition and denied the allegations made therein.
3. The Election Tribunal, after recording the evidence adduced by the parties by its judgment dated 25-9-1988, dismissed the election petition. Feeling aggrieved, respondent No,5 filed a writ petition in the Peshawar High Court, which was allowed as per impugned judgment dated 15-5-1988 and after declaring the election of the petitioner as a whole void, re-election was ordered, which has given rise to this petition for leave to appeal.
4. It is, inter alia, contended that there was no corrupt or illegal practice by the petitioner during the election and no violation of section 13(h) of the N.-W.F.P. Local Councils Ordinance, 1979 was committed, that the petitioner had explained the circumstances in which he had signed the blank paper which was used as an application, that all the voters present were freely allowed to cast their votes in favour of candidates of their choice, no impediment was created by the petitioner or the administration and thus the polling went on smoothly and that the following findings of fact and the conclusion arrived at by the Election Tribunal have been unduly set aside by the High Court in writ jurisdiction;-- "It is abundantly clear from the record of the case file and the statements of Presiding Officer and ASI and also from the statements of petitioner as well as respondent that no corrupt or illegal practice has been committd by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
' It is also clear that the election staff (including police party) was in no way involved in any breach of official duty in connection with the election."
5. The following observation of the High Court has also been questioned:-- " It appears that due to the ignorance of law on the part of the Presiding Officer as well as the Returning Officer, re-election at the polling station was not ordered in compliance of Rule 26."
6. The above contentions, inter alia, require consideration. Leave to appeal is, therefore, granted.
Security in the sum of Rs,5,000.
7. The interim order passed on 24-5-1989, suspending the operation of the impugned order shall continue till the disposal of the appeal, which will be fixed for hearing as early as possible, being an election matter.