' HAMID FAROOQ DURRANI, J.--"With the consent of learned counsel for the petitioner, the learned Deputy Attorney General of Pakistan and learned counsel for respondent No,6, we remand the case to the Election Commission of Pakistan. The Election Commission of Pakistan will examine the case and decide as to whether the case is made out under section 103-AA of the Act before issuance of the notification of the returned candidate taking into the consideration the reports of the Presiding Officer of the Polling Station Nos.219 and 244. The writ petition is disposed of in the above terms. It is expected that the Election Commission of Pakistan would decide the matter within a week."
2. Reproduced above is the operative part of order passed by the Honourable Islamabad High Court, Islamabad in Writ Petition No,31 of 2008 with consent of the parties thereto. Ex-consequentie, the matter was retaken for decision by the learned Election Commission of Pakistan on 4-3-2008 in presence of contesting parties and their respective learned counsel. It was concluded that the polls held on 18-2-2008 at Polling Station No,244 (Sathan Gali) were void while the District Returning Officer concerned was directed to hold the re-poll at the said polling station on 13-3-2008. It was further ordered that polling of female votes at Polling Station No,219 (Changari) be held on the same date.
3. Initially, the petitioner and respondent No,4 contested general election held on 18-2-2008 for the constituency of NA-20 Mansehra-I. After the official recount the petitioner was declared to have bagged 72522 votes while respondent No,4 secured 72469 votes to his credit. In the said manner, the petitioner took lead by a margin of 53 votes. On 21-2-2008, an application was received by the learned Election Commission of Pakistan, filed by respondent No,4, wherein it was alleged that on the day of polling an incident occurred at Polling Station Sathan Gali (No,244) at 12-30 p.m. Which claimed one B human life while some other received Injuries. Due to the said incident out of 2310 total registered voters only a small number could exercise their right of franchise while due to firing the voters in , waiting left the polling station. Some of the polling staff also disappeared from the spot which resulted in stoppage of further polling. Till closing hours of the polls the polling at the said station remained suspended. It was further stated that a similar application was submitted at the concerned polling station on 19-2-2008. A prayer for re-polling was made through the application while suspension of underway consolidation proceedings was also sought.
4. The order dated 23-2-2008 passed by the learned Election Commission of Pakistan upon fore- noted application suggest that the contents of application were transmitted to District Returning Officer in addition to the Returning Officer concerned for their respective comments/ reports. The said comments/reports were received by the learned Commission and it was held that as the record did not support the assertions of applicant/respondent No,4 herein, no case for grant of prayer was made out. The application was rejected as a consequence. It is to be noted here that at the time of decision none of the parties were represented before the learned Commission.
5. Aggrieved from the above order of learned Commission, respondent No,4 herein, filed a writ petition before the Honourable Islamabad High Court, Islamabad wherein he impuguned findings of learned Commission through various grounds. Besides, it was also alleged for the first time that Polling Station No,219 was a combined polling spot for both male and female voters but as the female polling staff failed to reach the polling station, the female listed voters could not cast their votes at the polling station. In the said manner, hundreds of female voters could not exercise their right of franchise. In the said regard the statement of count issued by the concerned Presiding ,Officer was also relied upon. Learned Islamabad High Court, on 27-2-2008, was pleased to direct official respondents to file written, comments to the writ petition while respondent No,6/ petitioner herein was also put on notice for 28-2-2008. On the date fixed the petitioner and respondents, including respondent No,4, were represented through their respective learned counsel while on behalf of official respondents learned Deputy Attorney General appeared. All consented to the passing of a remand order, operative part whereof has been reproduced hereinabove.
Consequently, the findings were returned by the learned Election Commission of Pakistan on 4-3- 2008 which are impugned before us through constitution petition in hand.
6. Syed Iftikhar Hussain Gillani Advocate, learned counsel for petitioner, while appearing before this Court contended that the impugned findings of learned Commission were in clear disregard of provisions contained in section 103-AA of Representation of the Peoples Act, 1976. The learned Commission could not, under the law, review its previous order and reverse the findings as there was no provision for the same in the relevant law. He added that the learned Commission lost sight of the fact that initially the allegations of respondent No,4 in terms of stoppage of polling at Polling Station No,244 (Sathan Gali) were not complemented with the complaint regarding non- availability of female polling station at Polling Station 219 (Changari). The said fact was for the first time introduced through writ petition filed before the Honourable Islamabad High Court, Islamabad by respondent No,4 after remaining unsuccessful in obtaining a favourbale decision from the learned Commission. For the said reason too, the complaint to the extent of Polling Station No,219 was not to be entertained by the learned Commission at a belated stage. The learned counsel further contended that there was no sufficient material before the learned Commission for passing of an order under section 103-AA of Act ibid which could apparently satisfy the Commission regarding grave illegalities or violation of the provisions of the Act warranting re-poll in some polling station of the Constituency. He was of the view that learned Commission, in the first round, had categorically held that the application of respondent No,4 could not be entertained due to lack of sufficient support evident from the record: While referring to the reports submitted by Returning Officer and District Returning Officer, respectively, the learned counsel attempted to argue that polling at Polling Station No,244 (Sathan Gali) was though suspended for a short interval but was resumed and continued till prescribed closing hours.
' It was also emphasized by the learned counsel that the learned Commission, while exercising jurisdiction under section 103-AA of the Act ibid, could not legally order for partial re-polling but was obliged, upon its satisfaction, to order re-poll in the entire constituency that too in the manner provided by section 108 of the Act. Learned counsel maintained that Representation of the People Act, 1976 was a special statute, therefore, the provisions contained therein were to be strictly complied with and any deviation therefrom could render the decisions of the Authority, mentioned in the law, as invalid. In the said regard learned counsel also referred to the provisions of section 27 of the Act and stated that the said provision catered for circumstances justifying re-poll in some of the polling stations of a Constituency. In his view, the case of respondent No,4 did not fall in the ambit of either of the two sections, therefore, it was not justified for the learned Commission to have ordered for partial re-poll. In support of his exhaustive arguments the learned counsel relied on judgment reported as PLD 1996 SC 108, PLD 1979 SC 741, PLD 2000 SC 77, PLD 2003 Karachi 209, 2005 CLC 123, PLD 1976 SC 6, 1989 CLC 1833 and PLD 1990 SC 352.
' The learned counsel, however, conceded that in the light of section 103-AA(3) the learned Commission could take evidence and prescribe its own procedure for regulation of proceedings but the said exercise was not undertaken.
7. Hafiz S.A. Rehman, learned counsel appearing on behalf of respondent. No,4, before responding to, the assertions made from the opposite side, stated that the matter could not be taken up for decision by this Court in constitutional jurisdiction as the Election Tribunals were already constituted for the purpose and any person aggrieved under the law could resort to the said remedy. He referred to Article 225 of the Constitution and also section 52 of the Act ibid in the said reference. The learned counsel was also of the view that the petitioner had agitated factual controversy which could not be looked into by this Court while exercising extraordinary constitutional jurisdiction. In support of his arguments the learned counsel relied on 2006 SCMR 412; 2006 SCMR 265; PLD 2006 Lahore 198; 2006 SCMR 219 and PLD 2006 Karachi 314.
8. It was further contended by the learned counsel that the respondent No,4 filed a writ petition before the Honourable Islamabad High Court, Islamabad against the order of learned Commission as passed on 23-2-2008, mainly for the fact that the same was returned without hearing the parties. The said writ petition entailed a consent order wherein it was specifically mentioned that the learned Commission shall look into the matters regarding both Polling Station No,244 (Sathan Gali) as well as 219 (Changari). The petitioner very much consented to the said order, therefore, could not question the inclusion of complaint regarding Polling Station 219 in writ petition for the first time. He further stated that due to consent on the part of petitioner it did not lie in his mouth to question the validity and propriety of impugned order by the learned Commission on the ground of non-availability of review jurisdiction with the Commission. The learned counsel was of the view that the learned Commission was obliged to re-decide the matter keeping into consideration the parameters prescribed by the Honourable Islamabad High Court, Islamabad and its such decision could conveniently vary its previous findings in case the learned Commission was satisfied to do so.
9. Learned counsel for respondent No,4 once again took us through the provisions of section 103-AA of the Act and argued that in case of violation of the provisions of the Act or the Rules the Commission was fully competent to order re-poll. In reference to the same the learned counsel took us through the provisions of sections 7(4), 9(1)(2)(3), 26 and 70 of Act ibid and stated that it was apparent on the face of record, available with the learned Commission, that the provisions of said sections of law stood violated during the course of initial polls. The learned counsel was of the view that the powers to declare the election of a constituency as a whole void rested with the Election Tribunal under the provisions of section 70 of the Act while on the other hand the provisions contained in section 103-AA ibid provided supervisory jurisdiction to the Commission through exercise whereof the Commission could order partial re-poll. In the case in hand, the record was clearly suggestive of the fact that polling at Polling Section 244 was stopped half-way while the female voters could not cast their votes at Polling Station 219 due to non-availability of polling staff, the learned counsel maintained. To substantiate his arguments he relied on 2004 SCMR 672; PLD 1989 SC 396; PLD 2002 SC 184; 2004 YLR 1459; PLD 1976 SC 6; PLD 2006 Karachi 314; 1995 SCMR, 684; 1994 CLC 296; 1993 SCMR 511; 1994 CLC 1530 and 2006 SCMR 1713.
10. We have extended careful thought to the valuable arguments by learned counsel for the parties and have also examined copies of documents appended with the writ petition. It is noticed that the petitioner has held back certain documents which were considered by the learned Commission and were made basis of its impugned findings. The said documents include the applications submitted by the voters to the learned Commission whereby the information regarding stoppage of poll at Polling Station No,244 and leaving of polling agents from the polling station, was conveyed. The affidavit dated 23-2-2008 sworn by Mr. Muhammad Shaukat Presiding Officer of Polling Station No,244, through which the incident of murder and stampede at the said polling station was affirmed, was also not appended though a copy thereof was provided at the time of arguments. Similarly, the report of Mr. Muhammad Shabbir Presiding Officer of Polling Station No,219 (Changari), regarding the fact of absence of female polling staff at the said polling station and deprivation of female voters communicated through reverse of Forms XIV, was also kept away from the record. It was, however, attempted by the petitioner to bring before this Court the subsequent statement of Presiding Officer of Polling Station 244 wherein the uninterrupted polling was shown to have taken place. It is also noticeable that the Presiding Officer of Polling Station 219, though claimed to have submitted an application on 19-2-2008 communicating that polling at the female polling station started in time while the votes were not polled by the female voters out of their own will, was in fact received by the Returning Officer on 25-2-2008, i.e,, one week after the conduct of elections. In these circumstances, we, have no choice but to fall back upon the observations of learned Commission regarding appreciation of contents of the said documents.
We, therefore, are handicapped to compare the text of documents not placed before us.
' Notwithstanding the above fact, it is observed that the affidavit supplied by Mr. Muhammad Shaukat Presiding Officer of Polling Station 244 on 23-2-2008, states inter alia that at about 1 p.m.
Firing started within the premises of polling station which resulted in death of one person and injuries to others. Further that the event was communicated to concerned Returning Officers through mobile phone immediately after murderous assault and stampede occurred in the polling station and the persons present on the spot including male and female voters, besides the polling agents, left the site out of fear. The polling stopped and did not resume, thereafter, (copy not appended with the writ petition), In his statement supplied to the Returning Officer on 3-3-2008, the occurring of criminal assault at 1-00 p.m. Is affirmed while rest of the contents of previous affidavit are negated in terms that he informed the Returning Officer regarding the incident and after some time the polling was resumed. That the polling thereafter remained in progress till 5 p.m. It is, however, stated in the statement that after close of polls the counting of votes was conducted in presence of noteables of the area and the police. The presence of polling agents of different candidates was though not indicated in the statement; ' Seen in juxta-position to the contents of affidavit and the statement by Mr. Muhammad Shaukat, the report of Returning Officer reveals that he was informed by the Presiding Officer of Polling Station 244 through telephone at 1500 hours regarding the incident and also that the polling was stopped for some time. At least one fact stands prima facie established through the report of Returning Officer and the statement/affidavit of Presiding Officer that the polling process was suspended for at least two hours i.e, between 1-00 p.m. And 1500 hours. Similarly, the mentioning of availability of female polling staff at Polling Station 219 on the relevant day and time seems to be negated through report on the over-leaf of Forms XIV prepared by the Presiding Officer of concerned polling station (copy not provided).
11. There is no material available before us which could suggest that the Presiding Officer or the Returning Officer reported the stopping of polls on Polling Station 244 to the learned. Commission although they were obliged to do so under the provisions of section 27 of the Act ibid. Similarly, the non-casting of votes at female polling booth of Polling Station No,219 was not communicated by the Presiding Officer to the Returning Officer. In the said manner, in our view the polling staff and the concerned Returning Officer remained at loss in performing their functions as required through the provisions of law mentioned hereinabove. In this regard we would consider it appropriate to reproduce hereunder some of the said provisions of the Act:-- ' Section 7(4) "It shall be the duty of a Returning Officer to do all such acts and things as may be necessary for effectively conducting an election in accordance with the provisions of this Act and the rules."
' Section 9(3) "A Presiding Officer shall conduct the poll in accordance with the provisions of this Act and the rules, shall be responsible for .Maintaining order at the polling station and shall report to the Returning Officer any fact or incident which may, in his opinion affect the fairness of the poll: ' Provided that, during the course of the poll, the Presiding Officer may entrust such of his functions as may be specified by him to any Assistant Presiding Officer and it shall be the duty of such Assistant Presiding Officer to perform the functions so entrusted."
' Section 26. "Hours of the poll.----The Commission shall fix the hours, which shall not be less than eight, during which the poll shall be held and the Returning Officer shall give public notice of the hours so fixed and hold the poll accordingly."
12. We also note here that the learned counsel for the petitioner, while arguing that the re-polling could be ordered in the circumstances mentioned in section 27 of the Act ibid, lost sight of the fact that the said section only provided procedure in case of stoppage of polling by the Presiding Officer in the given circumstances. The remedy in the event of non-commencing of polling at any polling booth or the station, as the case may be, is not provided in the said part of the statute. In the instant case, there was no order by the learned Commission for re-poll at female polling booth of Polling Station 219 while, in fact, polls were ordered to be held in accordance with law at the said female polling booth.
' What follows is that the learned Commission was within its competence to exercise supervisory jurisdiction under section 103-AA of the Act ibid in passing the impugned order as grave illegalities and violation of provisions of the Act were assimilable from the record.
13. The argument of the learned counsel for the petitioner in terms that the Commission could not pass a distinct order and reach diverse finding after iremand by the Honourable Islamabad High Court, would not have much force for the fact that through the consent remand order field was thrown open for the learned Commission to re-decided the matter pertaining to both the disputed polling stations. The learned Commission after hearing the parties reconsidered the available record and reached the conclusion based on the contents of record furnished by the concerned polling staff/Returning Officer/voters but in the first instance.
14. We are also in disagreement with the learned counsel for the petitioner regarding his argument emphasizing non-availability of jurisdiction to the learned Commission for ordering partial polls under section 103-AA. In the said regard we seek guidance of the case of Malik Manzoor Hussain (2004 SCMR 672). In this case the learned Election Commission of Pakistan ordered re-polling in only one of the polling stations of Constituency PF-46 Abbottabad-III. The matter was brought to this Court through a constitutional petition which did not prevail and the apex Court also refused leave to appeal filed therefrom. We are also guided by the judgment of Haji Behram Khan's case (PLD 1990 SC 352) wherein the judgment of Honourable High Court of Baluchistan was affirmed. The apex Court, while agreeing with the High Court held that to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of the other candidates would be to encourage the candidates who felt that they are loosing getting the whole election annulled and frustrating the wishes of the electorates. In this case the learned Commission had ordered re-polling in the entire constituency though mishap occurred in two polling stations. We are also persuaded by judgment in the case of Agha Ghulam All (PLD 1991 Karachi 396) wherein a learned Division Bench of the Sindh High Court was pleased to hold that in the circumstances of the case an order for re-polling in 3 polling stations of the constituency was justified under section 103-AA.
15. In conclusion to the foregoing, we are clear in our minds that the learned Election Commission of Pakistan did not exceed its lawful authority while passing the impugned order of re-poll at Polling Station No,244 (Sathan Gali) and holding of polls at female polling booth in Polling Station No,219 (Changari) in the Constituency of NA-20 Mansehra-I).
16. We have dismissed the writ petition along with civil miscellaneous application for interim relief through short order dated record 12-3-2008 and above are the reasons for the same.