Ijaz-ul-Hassan, J.--We intend to decide the following writ petitions by one consolidated order having similar facts and law:--
1. W.P. No, 1628/2005.
2. W.P. No, 1742/2005.
2. The brief facts out of which the aforesaid writ petitions arise are, that Mian Rahim Shah, petitioner alongwith Mian Jamsheduddin, Osaid Abbas, Zahid Gul, Amir Nawab and Shah Nawaz Khattak, Respondents 4 to 8 contested elections for Nazim, Naib Nazim respectively in the Union Council, Ziarat Kaka Sahib, District Nowshera. The petitioner was declared returned candidate, vide Election Form No, XVI dated 19.8.2005, in Gazette Notification of even date. The petitioner bagged 2470 votes, whereas Respondent No, 4 was declared to have bagged 2467 votes and the third candidate namely, Amir Nawab, for the post of Nazim was declared to have bagged 393 votes. Seemingly aggrieved, Respondent No, 4 moved an application to the Returning Officer, District Nowshera, Respondent No, 2 for recounting of votes. The application of Respondent No, 4 was allowed to the extent that only the excluded votes shall be looked into. The excluded votes were duly examined and one vote was declared to be in favour of Respondent No, 4 vide Order dated 20.8.2005.
Respondent No, 4 moved another application to Respondent No, 2 for total recount of votes. The application was rejected and Respondent No, 4 was directed to approach the Election Tribunal for redressal of his grievance. On 23.8.2005, office of the Chief Election Commissioner, Islamabad, Respondent No, 1 issued letter/direction to Respondent No, 2 to the effect that the result of Union Council, Ziarat Kaka Sahib, District Nowshera be withheld till recounting of votes is carried out. The petitioner, feeling aggrieved, filed a Writ Petition No, 533/2005 in this Court, assailing the aforesaid order dated 23.8.2005, on variety of grounds, vide order dated 1.9.2005. The writ petition was, subsequently, withdrawn vide order dated 8.9.2005 in the light of notification dated 21.9.2005. The grievance of the petitioner in nutshell is that on 21.9.2005 he came to know that Respondent No, 3 i,e, District Returning Officer, Union Council Ziarat Kaka Sahib, District Nowshera had ordered re- polling and the date fixed for re-polling was 26.9.2005. He approached the District Returning Officer for verification of the said order of re-polling but he was not provided the order of re-polling. The petitioner moved Respondent No, 1 for clarification and he was informed that Respondent No, 3 has been directed for re-polling to the petitioner on two polling stations i,e, GMS `Manal' (female) and GGPS Walai' (female).
3. Qazi Muhammad Anwar, Advocate, appearing on behalf of the petitioner in W.P. No, 1628/2005, mainly contended that the impugned directive/letter of Respondent No, 1 for re-polling of votes at polling stations `Manai' (female) and Walai' (female) is unjustified and unwarranted by law; that Respondent No, 1 has no jurisdiction under the law to pass such an order after the petitioner was duly notified as a returned candidate in the official gazette; that order of Respondent No, 1 and the consequent order of Respondent No, 3 is baseless, arbitrary and devoid of any consideration and that the entire exercise of Respondent No, 4 is malafide and is directed towards frustrating the due process of election under the law. Concluding the arguments, learned counsel submitted that the petitioners was condemned unheard and no notice was given to him either at the time the matter relating to re-polling at the said women polling station was being considered by Respondent No, 1 or subsequent thereof, which has materially prejudiced the interest of the petitioner.
4. Miss Musarrat Hilali, Advocate for the petitioner in W.P. No, 1742/2005, adopted the arguments of Qazi Muhammad Anwar and prayed that impugned directive/action of Respondent No, 3 not allowing the petitioner to contest election for the office of Naib Nazim, District Nowshera, is highly discriminatory and may be suspended or in the alternative the election for the office of Naib Nazim be postponed for the time being.
5. Syed Iftikhar Hussain Gillani, Advocate representing Mian Jamsheduddin, Respondent No, 4, on the other hand, supported the impugned directive/order whole heartedly and reiterated that more than 100 female voters of polling stations GMS `Manai' (female) and GGPS Walai (female) were not permitted to cast their votes and were interrupted and obstructed during the election process, which motivated them to approach the learned Chief Election Commissioner of Pakistan to probe into the matter and redress their grievance. The learned contended that the impugned directive/order has been passed strictly in accordance with law and hardly calls for interference of this Court in its Constitutional jurisdiction. To argument the contentions, he placed reliance on PLD 2002 Supreme Court 184, PLD 1989 Supreme Court 166, 1981 SCM R 919 and 1981 SCM R 1250 and PLD 1989 Peshawar 112.
6. We have heard at length, arguments and submissions of learned counsel for the parties with reference to the material on the file.
7. Having adjudged the matter from all angles, in the light of the material on the file, we are of the considered view that the impugned order dated 21.9.2005 has been passed well within the four corners of law and hardly requires interference of this Court in writ jurisdiction. A perusal of the record would reveal that more than 100 female voters of two polling stations i,e, GMS `Manai'
(female) GGPS Walai' (female), were not permitted to cast their votes and were interrupted and obstructed during the election process. This fact has been verified by the Presiding Officer of concerned polling stations. The petitioner alongwith Respondent No, 5 moved an application to Respondent No, 2 regarding the interruption and obstruction of female voters in the above said polling stations and the same was subsequently withdrawn. A thorough probe was made into the matter, in which the petitioner duly participated. Respondent No, 3 after thorough probe and inquiry, issued order for re-polling of the aforesaid polling stations. The re-polling has been ordered to promote justice and give the female voters of above mentioned polling stations their due right of vote. The impugned order is neither arbitrary, illegal, malafide, discriminatory nor the same takes any right of the petitioner. Complete justice having been done between the parties, we do not feel inclined to exercise our discretion in favour of the petitioner. The petitions, having been found bereft of substance are hereby dismissed, with no order as to costs.