' SH. AZMAT SAEED, J.-This constitutional petition is directed against the order of the Election Tribunal dated 27-9-2006, whereby an election, petition filed, inter alia, against the present petitioner was accepted and fresh poll was directed to be held at Polling Station No,295.
2. Brief facts leading to the filing of this constitutional petition are that the petitioner along with respondent No,4 contested the Local Bodies Election for the Posts of Nazim and Naib Nazim of Union Council No,82, Bogrey, District Sialkot. Respondents Nos.2 and 2-A as well as respondents Nos.3 and 3-A also contested the said election. Process of election was hampered on account of violence.
However, the petitioner and respondent No,4 were declared elected. Respondents Nos.2 and 2-A filed an election petition before the respondent No,l Election Tribunal. The said petition was resisted by the present petitioner. From the pleadings of the parties issues were framed and evidence was led. Whereafter the learned Tribunal vide the impugned order held the election of the petitioner and respondent No,4 to be void in respect of Polling Station No,295 and directed repolling at the said Polling Station. It appears that there was an incident at the said Polling Station in which one Muhammad Afzal lost his life and injuries were caused to others. An F.I.R. In this behalf was also registered. It is in the aforesaid perspective that the impugned order has been passed.
3. The matter came up for hearing before this Court on 10-10-2006. During the course of the proceedings the then learned counsel for the petitioner after arguing the case at some length stated that the only grievance was that the Election Tribunal could not direct holding of repolling in one Polling Station and under Rule 75 of the Punjab Local Government Elections Rules, 2005 the election as a whole could be declared as a null and void and a fresh election directed in respect of the entire constituency. In support of his contentions the learned Counsel had placed reliance on the judgment reported as Muhammad Hanif Shah v. Election Tribunal and others 1985 M LD 374.
4. The learned counsel for respondent No, 2 resisted the said petition and supported the order of repolling in one Polling Station. However, his contentions were overruled and this Court vide its order dated 10-10-2006 accepted the contentions of the counsel for the petitioner and held that entire election of the Union Council concerned was null and void and "a run of election" be held.
Aggrieved the present petitioner filed an Intra-Court Appeal challenging the said order dated 10- 10-2006 i.e, I.C.A. No,302 of 2006 which was disposed of vide order dated 29-11-2006 and the matter remitted back to this Court on the sole ground that there is no provision of "a run of election" of Nazim and Naib Nazim. The findings of this Court otherwise were not interfered with.
5. The learned counsel for the parties have been heard and the record perused.
6. At the very outset the learned counsel appearing on behalf of the petitioner frankly conceded that the Election Tribunal seized of the matter was not vested with the jurisdiction to order a re-poll in one Polling Station and a fresh election in the entire constituency could have been ordered. The learned counsel for the respondent has no objection for holding of a fresh election in the entire constituency. The only contention raised at the bar by the learned counsel for the petitioner is that this Court while exercising his constitutional jurisdiction should not substitute its findings that of the Tribunal vested with the jurisdiction in this behalf and prays that the matter be remanded back to the Election Tribunal for passing of ah appropriate order in the circumstances. In support of his contentions the learned counsel has relied upon the judgments reported as Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 357 and Syed Azmat Ali v. (1) The Chief Settlement and Rehabilitation Commissioner, Lahore, (2) Abdur Rehman and (3) Mst. Aimna Bibi PLD 1964 SC 260.
7. The learned counsel for - the contesting respondents has vehemently opposed the contentions raised on behalf of the petitioner and contends that the petitioner after subverting the will of the people and defiling the electoral process through violence wants to hang on to his ill- gotten gain a little longer. Adds that the remand of the case would be an exercise in futility and would only delay the expression of will of the people.
8. The contentions raised on behalf of the learned counsel for the petitioner are misconceived.
Reliance has been placed on the observations of the Honourable Supreme Court in Syed Azmat Ali's case (supra), which are being read out of context. The relevant portion of the judgment is reproduced hereunder: ' "Having decided, however, to set aside the order of Malik Fateh Khan the question is as to what , should the High Court have done? Should it have remanded the case for a proper decision in accordance with law. In the present case, the question whether Aimna Bibi had, in fact, filed a CH form or not was a question which clearly required investigation. Malik Fateh Khan merely said that there was no evidence on the record to prove that she had filed such a CH form. He did not come to any clear finding that no CH form was in fact filed. Aimna Bibi produced a receipt which showed that a CH form was submitted to the office but after notified date. The question therefore, arose as to whether the delay in the filing of the CH form had been condoned and the same admitted. A further questionappeal on the ground that it was barred by limitation was proper or not. There was nothing in the order of Khan Farzand Ali Khan to show that he was even conscious that anv question of limitation arose. In the circumstances, we are unable to appreciate how the High Court thought it fit to restore the order of the Settlement Commissioner which itself was liable to be quashed in the writ jurisdiction.
' In a proceeding of this extraordinary nature where a superior Court calls for the records of judicial or quasi-judicial authorities or Tribunals, which are not subject to its appellate jurisdiction, the superior Court no doubt has the full power to do justice but does not as a rule, even in a case where it does interfere, substitute its own decision for the decision of the inferior authority or Tribunal. Where it is felt that questions have been left undecided by such Tribunal or authority or a question has to be decided after the taking of fresh "evidence, it is more appropriate to return the case to the authority or Tribunal concerned for a decision in accordance with law, after quashing the order complained against."
9. In the facts and circumstances of this case the petitioner himself took a specific plea during the course of arguments that the impugned order of the Election Tribunal is illegal only to the extent that repolling has been directed in one Polling Station rather than the entire constituency. It has also been conceded at the bar that the Tribunal is only vested with the jurisdiction to declare the election as null and void and thereby direct a fresh election. It is no longer a disputed issue that will of the people had been subverted through violence. No further inquiry into the facts is required to be conducted and no other issue has been left undecided by the Tribunal necessitating further adjudication by it. The finding and decision of the Tribunal that the election process was flawed and subverted is no longer an issue before this Court nor such finding sought to be substituted by either party. In the circumstances there is no occasion necessitating the remand of the case and only a jurisdictional error in the judgment is required to be corrected so as to bring the ultimate relief granted in consonance with the law as expounded by both the learned counsel. The fact in the instant case are totally different from the facts of the case relied upon by the learned counsel for the petitioner where further inquiry into facts was required to be effected and undecided questions still remained to be adjudicated upon. The contentions of the petitioner appear to be a futile attempt at delaying the inevitable so as to hold on to an ill-gotton status in defiance to the' will of the electorate.
10. In Sardar Hussain's case (supra) the Honourable Supreme Court incidentally did not set aside the order of this Court passed in its constitutional jurisdiction on account of the contention identical to contention raised before this Court seeking remand of the case, hence, the same is of no assistance for the petitioner.
11. The upshot of the above discussion is that ordinarily this Court while exercising of its constitutional jurisdiction does not substitute its own decision with that of an inferior Tribunal or Authority, where such decision involves adjudication upon questions not decided by such Tribunal or Authority or require investigation or recording of fresh evidence. This Court is vested with the jurisdiction to ensure that justice is done in accordance with law and the litigation concluded rather than remanding the case by way of a formality and thereby condemning the parties to a further round of litigation. In the instant case there is no occasion to remand the case.
' In view of the above, this petition is accepted. The order of the Election Tribunal is modified to the extent that the entire election of Nazim and Naib Nazim of Union Council No,82, Bogrey, District Sialkot is declared to be null and void. Consequent whereupon a fresh election of the post of Nazim and Naib Nazim would be required to be conducted in the entire constituency. Copy of this petition be sent to the offices of the Chief Election Commissioner as well as the Provincial Election Commissioner.