1. Muhammad Nawaz Abbasi J.--These two connected petitions (C.P. No, 369/08 and 370/08) under Article 185(3) of the Constitution of Islamic Republic of Pakistan, have been directed against the judgment dated 28.03.2008 passed by the High Court of Sindh at Karachi by virtue of which two constitution petitions Bearing Nos, No, D-454 & 455 of 2008, involving common questions of law and facts, were allowed and the order dated 4.3.2008 passed by the Election Commission of Pakistan. directing re-poll at certain polling stations of NA-202 and PS-12, Shikarpur-I, was set aside.
2. These petitions against the same judgment, are disposed of together through this single judgment which is rendered in CP No, 369/2008.
2. The facts of the case, in small compass, leading to the filing of these petitions are that petitioner in CP 369/08, Mr. Aftab Shahban Mirani (hereinafter called petitioner) contested election for the seat of National Assembly from NA-202, Shikarpur-I, Province of Sindh, in General Elections of 2008 held on 18.02.2008 and as per result compiled and announced by the Returning Officer, his opposing candidate, Dr. Muhammad Ibrahim Jatoi (hereinafter called respondent), having securing 53,750 votes as against 47775 votes obtained by the petitioner succeeded with the lead of 5975 votes. Mr. Aftab Shahban Mirani, petitioner herein, moved successive applications to the Election Commission of Pakistan on 19.2.2008 and 21.02.2008 seeking re-poll on 19.2.2008 and 22 polling stations of NA-202 and PS-12, Shikarpur-I, Sindh which are reproduced hereunder:-- "February 19, 2008 To, Chief Election Commissioner, Election Commission of Pakistan, Islamabad.
3. Subject: Stay of notification of election of NA-202.
(sic) election held yesterday, 18th February, 2008 for NA-202, Shikarpur.
4. Rigging started from the change of presiding officers on the night of 17th February, the Returning Officer, Mr. Ahmed Saba in connivance with the Jatoi party changed the duties of about 16 presiding officers and appointed those presiding officers who were either employed by Mr. Jatoi or who worked for them. A perfect example of removing BPS-18 grade lecturers with a BPS-4 grade Compounder, Mr. Abdur Rehman Shar, who was appointed as Presiding Officer in Haji Khawasti Polling Station.
5. On the 17th of February my Provincial Assembly candidate for PS-12, Khanpur Taluka, district Shikarpur, Mr. Agha Arslan Khan, went to drop the polling agents in the evening at different polling stations when he reached Bux Ali Jatoi Polling Station, he was surrounded by a mob and was stopped from coming down from his car, and was threatened and assaulted and told to leave immediately. Therefore, he was unable to depute any polling agents at that polling station + that their lives including his would be at stake.
6. Furthermore, on the 18th of February, the election day, we were informed that 600 ballot papers (300 N.A. and 300 P.A.) were missing from Polling Stations No, 75 GPS Hazar Khan Chandio - Deh Razi Wah. The Seal of the ballot bag was open. This was observed at 6.45 am. The Presiding Officer Mr. Elias Ajjana, admitted handing over 6 books totaling 600 hundred votes to an ASI, who took them away. His confessional statement was recorded by the print media and duly publicized.
7. Furthermore, we had a meeting with the District Returning Officer and the Returning. Officer of NA- 202 regarding appointment of female polling agents in Katcha areas of Sindh which are declared as very very sensitive polling stations by the Election Commission, we were told that we do not require any female polling agents to be deputed anywhere, where the polling staff is male. We were told that all the presiding officers will be intimated and we will have no problem. In contrast to that, on the election day, our male agents were banned from entering any female booth, so that our rivals could make use of the situation in female polling booths. to put bogus votes as there were none of our agents present to check the rigging.
8. On the 18th of February, my Provincial Assembly candidate Mr. Agha Arsallan Khan, PS-12 (Khanpur Taluka), went to GMS Kot Shahoo Polling Station Number 187 for NA-202 and was shocked to find that 800 ballot papers (400 NA 400 PA) were missing. He asked the presiding officer to look for them and to his bigger shock he found 400 (200 NA 200 PA), having Serial Numbers 280601 upto 280700 and 27001 upto 279100, Serial Numbers of two other books, could not be reduced into writing, or telephone, got disconnected, all ballot papers were duly signed and stamped for tractor (the election symbol of both Jatoi brothers). He immediately made the Presiding Officer speak to the Returning Officer on the telephone, then the Presiding Officer confessed to his superior about this incident and him being a party to my rival candidates in rigging the election I my constituency NA-202 and PS-12 (Khanpur Taluka) constituency of Agha Arsallan Khan. The Presiding Officer admitted to the Returning Officer of what all had happened. We have the video footage of all that happened, including the + which were already stamped. The video footage can be provided to you at any time. While + polling station, when our rival candidate Mr. Abid Jatoi, was informed of what was going, he immediately came and asked Mr. Agha Arsallan Khan to hand over the ballot papers or he will + to force the consequences. Mr. Agha was detained in a room and was forced to hand over those ballot papers back to them, Which we know for sure were put in the ballot boxes. You can compare the serial numbers and you will find out that the concerned ballot papers, were also shown to the Rangers in charge, Mr. Mumtaz, who according to him informed his superiors. I request you to please open the ballot boxes and check whether the ballot papers is duly signed and stamped. You will find the majority of ballot papers not singed by the officer and also having the same thumb impression on almost all the voting paper. The counter-foil of most of the votes have no NIC number on them at all.
9. Some incident of missing of ballot appears was found at Dispensary 26 Mile, PS No 189 for NA-202.
10. On the day of the elections, we observed while visiting different polling stations in the Katcha areas that at around 4 pm only 20% votes were cast and mostly all the stamping was done after the closing time of 5 pm. From 5pm of the 18th February, I stationed myself outside the office of the Returning Officer (Additional Sessions Judge), where I spent the whole night sitting in the veranda and half the day of the 19th to make an effort to half any in discrepancies from occurring. To my horror and dismay, I found out that the result of NA 202 Polling Station No, 160, Sobdar Jatoi was delivered at 4.45 pm.
11. This showed my result as nil, and Dr. Ibrahim Jatoi 1787 votes (casting 92.4%). The result of PS No, 187, Kot Shahoo was delivered 15 minutes later at around 5.05 am. This shoed my result as nil, and Dr. Ibrahim Jatoi 1491 votes (casting 83%). The result for PS No, 159, Gulib Ali Daroga was delivered 10 minutes later at around 5.15 am. This showed my result as nil, and Dr. Ibrahim Jatoi 1426 votes (casting 98.5%). All these presiding officers brought the results without any police escort, which is a violation of the Election Laws, rather they came in private cars, which presumably belonged to the Jatoi candidates, I pointed this out to the Returning Officer, who was taking delivery of the election material. For these 4 polling material was the last to be delivered coincidently, these had the highest number of votes. Another blatant case of rigging was found in NA 202, PS No, 175, Qadir Bux Pahore, where our agents were given result on a simple piece of paper, stamped by the presiding officer and signed by him, as myself 9 votes, and Dr. Ibrahim Jatoi 715 votes. But, in the consolidation statement provided by the Returning Officer in Form XVI, the result 'was myself 9 votes, and Dr. Ibrahim Jatoi 1115 votes. This is just one of the many examples we found in such a short time. There must be several such instances, which we could not be aware of.
12. To ensure the ends of justice, it is requested that notification Regarding NA-202 - Shikarpur I, be withheld, an enquiry be conducted, to prove the facts stated above, and if proved correct, I would humbly request you to please cancel the election of NA 202 - Shikarpur I and hold fresh elections.
13. Thanking you. Yours sincerely, Aftab Shahban Mirani Shahban Road, Shikarpur (Sindh)
14. 0726-572476, 0726-514060"
15. "To The Chief Election Commissioner, Election House, Islamabad.
16. Subject:--Re-Polling in 22 Polling Stations of NA-202, Shikarpur-I and PS-12 Khanpur Dear Sir, In furtherance to our petition dated 19th October, 2008, faxed to you from Shikarpur (copy of the petition attached). I submit a comprehensive list of 22 polling stations in which I have secured only 61 votes and my opponent got,28037 votes. These figures are self explanatory.
17. It is requested that re-polling should be held in these 22 polling stations, the (lists is attached) to assure the ends of justice.
18. Thanking you, Yours sincerely, Sd/- Aftab Shahban Mirani)
19. Candidate NA-202"
20. The Election Commission of Pakistan directed for reports trom Returning Officer and District Retiming Officer, respondents herein. The Returning Officer submitted report on 25.2.2008 in the following manner:-- "OFFICE OF THE IVTH ADDITIONAL SESSIONS JUDGE SHIKARPUR No, PO/NA-202 / PS-11-12/ivth asi/162/2008 dated 25.2.2008 To The Honourable Chief Election Commissioner of Pakistan Islamabad.
21. Through :- The Honourable District Returning Officer/ District and Sessions Judge, Shikarpur.
22. Subject:- APPLICATION FOR RE-POLLING FILED BY MR. AFTAB SHAHBAN MIRANI REFERENCE: No, DRO/196/2008 Shikarpur dated 25.2.2008, read with Letter No: 7(22)/2008- Law Election Commission of Pakistan. Secretariat Constitution Avenue, G-5/2, Islamabad dated 23.02.2008.
23. Hon'ble Sir, It is submitted before your goodself that all the state of allegations are ground less and baseless as leveled by the candidates for the constituency NA-202, Shikarpur (Old Shikarpur-I) Mr. Aftab Shahban Mirani, because all the possible efforts were made to conduct the free, fair and transparent election 2008 and the para wise comments are being furnished before your honour only to reach at the right conclusion.
(a) The presiding officers were appointed by me with the consultation of the heads of department i,e, EDO Education. Mr. Ghulam Shabir Khan, Mr. Anayatullah Billo, District Officer, Education Shikarpur, and Principal C & Degree College Shikarpur Mr. Abdul Hayee Moriyani and the office memorandums for their appointments were sent care of their heads but unfortunately some of the presiding officers were absent at the time of call of their turn to handover the material on 17.2.2008 and I had awarded for them till late hours, and I was not having any option to appoint to these persons, who have attended the training of UNDP in this regard of Mr. Aftab Rehman, who is performing the duties as Assists Superintendent VAC in Health Department Shikarpur and he is not computer, and was appointed as presiding officer at the Polling Station No, 84 BHU Haji sic where 302 voters had tasted their voters in favour of their candidates and no complaint has been received by me from any corner of any body had submitted any complaint by any candidate at the relevant time. The Photostat copy of his official car is annexed herewith for kind perusal.
(b) Mr. Agha Arsallan Khan had appeared before me at about 02.30 midnight of February 18, 2008 when I was waited for the confirmation calls of the presiding officers, who have been dispatched by me alongwith the material and had submitted the application alleging the same nature of State of allegation and just after leaving of Mr. Agha Arsallan Khan, DPO Shikarpur Mr. Mansoor Ahmed Mughal had arrived at my office only to discuss the matters in respect of security arrangements at the polling stations and I had intimated to him in respect of application of Mr. Agha Arsallan Khan, who issued the instructions to the quarter concerned to keep the tight security at the polling station to extend the protection if the polling agents of any party are appeared at the polling stations.
(c) Sir, I had rushed to the Polling Station No, 75 GPS Hazar Khan Chandio (Male) and checked the record in the light of invoice packing and found that three books (100 leaves) Serial Nos, 01147, 01149, for National Assembly and three books (100 leaves) Serial Nos, 01150, 01151 and 01152, for Provincial Assembly were missing and the Presiding Officer Muhammad Ilyas Hajano was not able to give the satisfactory reply of missing of the said books of ballot papers and I had seized all the remaining books of ballot papers only to safeguard the sanctity of the poll and such FIR No, 24/2008, has been registered at the Police Station New Foujdari, Shikarpur and the Custody of Presiding Officer was handed over to the Policy book to him. The copy of FIR is annexed herewith for kind perusal and other six books of ballot papers for NA and Provincial Assembly were entrusted to the Presiding Officer who was senior most amongst the polling staff. The boxes were sealed by me on spot in presence of polling agents of different parties and so also Mr. Maqbool Ahmed Shiekh, who was. the candidate of the constituency PS-II Shikarpur-I (Old Shikarpur-III).
(d) All the Presiding Officers, who were performing the duties at the female polling stations, to which were established at the rural areas, were instructed at the time of dispatch of material that male polling agents will be allowed at the female polling station in case of non availability of female polling agents of the candidates and on the day of poll. I had not received any complaint in this regard.
(e) Mr. Agha Arsallan Khan had informed to me on my mobile that the presiding officer Mr. Abdul Sattar has put the stamps on the symbol of Tractor on the books of ballot papers and such ballot papers are yet to be issued to the voters and I had inquired from the Presiding Officer on the mobile of Mr. Agha Arsallan Khan, who had denied the state of allegations and intimated to me that Mr. Agha Arsallan Khan alongwith number of persons have entered at the polling station. I had informed to Mr. Agha Arsallan Khan, who to stay at the polling station. G.M.S. Kot Shahoo and I had rushed towards the said polling station and had informed to Major Aqil, who was officer of Rangers to reach at the polling station. Mr. Agha Arsallan Khan had left the polling station before my arrival and I had not found any misappropriation. The Presiding Officer, Abdul Sattar had told to me that Mr. Agha Arsallan Khan had seized his mobile and it was not returned to him all the submission of result of count with me at late night. I had inquired about the state of affairs from the Incharge of Rangers, who replied to me that he did not witness any untoward incident but when they had arrive at the polling Station alongwith the. superiors. Mr. Agha Arsallan Khan and Mr. Abid Hussain Jatoi were chit chatting in good atmosphere.
(0) Mr. Agha Arsallan Khan, candidate for PS-12, Shikarpur-II (Old Shikarpur-IV) had reached at Polling Station No, 189 known as 26 mile Dispensary, after leveling the Polling Station Nos, 186 and 187 CM Kot Ehahoo and had complained to me on mobile that two books of ballot papers are missing at the polling station and I had enquired from the Presiding Officer Mr. Madid Ali Shah, who informed to me that he is searching the same and in presence of Mr. Agha Arsallan Khan and other companions, who were accompanying with him, the said ballot papers, were traced out by the Presiding Officer and same were fresh and unspotted and there was no mark on any symbol of the ballot papers.
(g) Sir I had relied upon the result sheets as furnished by the Presiding Officers of the polling stations and I had visited the Polling Station No, 36 GPS Mirza Banglow Sanjrani Muhalia (Male), 37 GGPS Sanjarani Muhalia (Female) 186, Kot Shaloo (Male) 187 Kot Shahoo (Female) 157 GMS Kot Ehadoo sic GHS Tando Ali Sher (Male), 156, GPS Tando Ali Sher (Female), 97 GPS(B) Phulpota, 45, GPS (B) Kot Akhtar Mohammad (Male),
46. GGPS Kot Akhtar Muhammad (Female), 81 GPS Gindal Buriro, and 73 GPS Pir Bux Luhar, and sufficient persons were available there only to cast their vote and all possible efforts were made to control the area, fair and transparent election with the assistance of law enforcement agencies, coupled with the Army and Rangers, and all the results were received by me in person from the Presiding Officers along with the material and such result was prepared with the Assistance of my AROs Mr. Zahid Hussain Matilo and Mr. Sodagar Ali Solangi on 19.2.2008, in the light of the statement of the count (Form XVI) as submitted by the Presiding Officer, and the proceedings of consolidation of result was conducted by me on 19.2.2008 at 09:00 a.m. for the constituency NA-202, Shikarpur (Old Shikarpur-I) when no objector had come forwarded to raise the objection and the final result was prepared at 1000 am. The form XVI and XVII , have been issued by me and the returned Candidate Mr. Mohammad Ibrahim Jatoi has filed the statement of expenditure, coupled with the affidavit' (Form XVIII and XIX) to which have been transmitted in the honour of Provincial Election Commissioner, Karachi, through the Honourable District Returning Officer/District and Sessions Judge, Shikarpur through letter No, Returning Officer NA-202/PS.II and 12/IVTH/ASI/155/2008, Shikarpur dated 20.2.2008.
24. Sd/- (Ahmed Saba) Returning Officer Addl.
25. Sessions Judge No, 4, Shikarpur N.A.202, PS 11 and 22 of Shikarpur.
26. The District Returning Officer submitted report on 26.02.2008 which contracted the report of Returning Officer. The report of DRO is reproduced as under :-- "To The Section Officer (Law)
27. Election Commission of Pakistan, Constitution Avenue G-5/2 Islamabad.
28. Subject: Application for repolling filed by Mr. Aftab Shaaban Mirani.
29. Ref rice Your office Letter No, 7(22)/2008-Law dated 23.2.2008 This is an application of Mr. Aftab Shaaban Mirani candidate for NA-202 Shikarpur (Old Shikarpur-I) with regard to his grievance including (i) change of Presiding Officer of Sixteen Polling Stations by persons including one of 4-grade (ii) missing of 600 ballot papers from Polling Station No, 75 GPS- Hazar Khan Chandio (Hi) Missing of further 800 ballot papers from Polling Station No, 187 GMS-Kot Shahu - misuse of (iv) prevention of applicant's Polling Agents to be present at the Polling Stations including female Polling Stations (v) turn out of vote casting shown to be from 45% to 98% although in fact it was about 20% (vi) high percentage of rate shown was due to bogus votes casting on missing ballot papers which bear the stamp only but not signature of Polling Officer (vii) Returning Officer mixed up with rival candidate Dr. Mohammad Ibrahim Jatoi. Even bags containing cast votes were brought without police escort late during night of 18/19 February, 2008 (viii) Results of polls issued to the applicant was on simple papers although printed forms were available with the Presiding Officer (ix) Rival is shown to have obtained 28137 votes whereas the applicant's votes were 61 from 22 Polling Stations. The applicant has therefore prayed withholding issue of Notification with regard to NA-202 Shikarpur (Old Shikarpur-I) and the inquiry to hold fresh elections for the seat of NA-202 Shikarpur (Old Shikarpur-I). In the inquiry conducted the Returning Officer was ordered to comment on the applicant which has been received. From the comments received from the Returning Officer (copy of which is annexed herewith) it is very clear that the allegations go into the root of the fact whether the polling for the election for the seat of NA-202 Shikarpur (Old Shikarpur-I) was held is free and fair manner. The Returning Officer has admitted the some of the grievance and some grievance are not denied by the Returning Officer and for the rest few he has denied the allegations of the applicant but has not shown plausible cause for his denial. Under the circumstances I am of the view the prayer for re-poll by the applicant is justified.
30. These are my comments.
31. Sd/- Ghulam Mustafa A. Memon)
32. District Returning Officer Shikarpur"
33. Dr. Arslan Khan, petitioner in C.P.No, 370/08, candidate from PS-12, Shikrpur-I, Sindh also moved a similar application against Abid Hussain etc. wherein he also sought re-poll on the polling stations in questions. The petitioners in both these petitions thereafter filed separate, constitution petitions in the High Court of Sindh, Karachi and in addition to the private respondents, also arrayed the official respondents as party. These constitution petitions came up before the learned Chief Justice of the High Court of Sindh at Karachi on 25.02.2008 and learned Chief Justice while passing an injunctive order as interim measure in chamber, adjourned the case to 28.2.2008. Meanwhile, Election Commission of Pakistan taking cognizance in the complaints filed by the petitioners on 19.2.2008 and 21.2.2008, issued notices to all concerned and ultimately, vide order dated 3.3.2008, in exercise of its powers under Articles 218 and 219 of the Constitution read with Section 103-AA of Representation of People Act, 1976 held a summary inquiry into these applications and vide order dated 3.3.2008, disposed of the same in consequence to which the writ petitions were not further pressed.
34. The Election Commission of Pakistan in the light of the factual position narrated in the complaints as well as in the reports of Returning Officer and District Returning Officer referred to above and other material available on record vide order dated 3.3.2008 while disposing of the applications of the petitioners directed re-poll at 18 polling stations of NA 202, Shikarpur-I and 17 polling stations of PS-12 Shikarpur-I. The operative part of the order is read as under: "6. The main contention raised by the learned counsel for the for the petitioner was that the percentage of turn out of voters at 22 polling stations in question was on the higher side and this fact was by itself sufficient to substantiate the allegations of the petitioner. It was also contended that at the said polling stations the petitioners had secured 61 and 102 votes respectively while the winning candidates had obtained 28137 and 28373 votes. It was further contended that while the Returning Officer had admitted that the allegation about the missing ballot papers was well founded the District Returning Officer had stated in clear, words that the prayer of the petitioner for re-poll was justified."
35. The private respondents being aggrieved of the order of re-poll passed by the Election Commission of Pakistan filed separate constitution petitions before the High Court of Sindh Karachi, which were allowed vide judgment dated 28.3.2008 whereby the order of Election Commission of Pakistan was set aside. The petitioners have assailed the judgment of High Court before this Court in present petitions.
36. Sardar Muhammad Latif Khan Khosa, learned ASC, counsel for the petitioner in Civil Petition No, 369 of 2008, has raised the following questions of law in support of these petitions:--
(a) The scope of power of judicial review of the High Court under Article 199 of the Constitution in election matters is limited to the extent of question of law and unless the order assailed in the writ petition before the High Court is found mala fide, coram non judice or without jurisdiction and patently illegal, the High court is not supposed to interfere in the orders passed by Election Commission of Pakistan or any other election authority functioning under Election Commission of Pakistan.
(b) The finding on controversial questions of facts arrived at by a, Court or Tribunal on the basis of the evidence neither can be interfered by the High Court in its Constitution jurisdiction nor the High Court can undertake an exercise of recording evidence for decision of such questions and is also not supposed to substitute its own opinion/finding for opinion/finding of Election Commission of Pakistan or Court or Tribunal on question of fact through reappraisal of evidence in writ jurisdiction.
(c) The interference of the High Court of Sindh, at Karachi, in the present case in its constitutional jurisdiction was beyond the scope and parameters laid down by this Court. In Ghulam Mustafa Tatoi Additional District & Sessions Judge (1994 SCMR 1299) and Rao Sikandar Iqbal (C.P. No, 1 of 2008), the for exercise of such jurisdiction and mere fact that in certain situations, the remedy of writ petition may not be debarred in election matters, is not a valid ground to interfere in the controversial questions of fact or mixed question of law and fact arising out of an election dispute.
(d) The Election Commission of Pakistan. a constitutional forum, has to perform dual functions of making all necessary arrangements to ensure that election is conducted honestly, justly, fairly and in accordance with law and has also to ensure that corrupt practices in the election are guarded against. In addition thereto, the Election Commission of Pakistan has to discharge duty of preparing electoral roles for the elections of National and Provincial Assemblies, the organization and conduct of elections to the Senate, to fill casual vacancies in a House of the Parliament or Provincial Assemblies and to also appoint the Election Tribunals in terms of Article 225 of the Constitution for the decision of election petitions under Representation of People Act, 1976.
(e) The bar contained in Article 225 of the Constitution to call in question the election to a House or Provincial Assembly except by an Election Petition before a Tribunal established under the law, is not absolute rather it is subject to the provisions of Article 218 and 219 of the Constitution read with Sections 103 and 103-AA of Representation of People Act, 1976. In support of the proposition, learned counsel has placed reliance on "Faqir Abdul Majid Khan v. District Returning Officer & others (2006 SCMR. 1713)".
(f) The power of the Commission under Articles 218 and 219 of the Constitution read with Sections 103 and 103-AA of the ibid Act, is not confined only to the extent of general supervision or to make pre-poll arrangements for conduct of election rather Commission is also responsible to control all affairs directly or indirectly concerned with election to ensure the transparent election and in case of any disturbance in the election in a constituency effecting transparency and fairness as a result of violation of any law or rule by an election authority subordinate to the Election Commission of Pakistan or by a candidate or his agent or by any other person or a voter, the Commission may in exercise of its powers pass an appropriate order.
(g) The jurisdiction of Election Commission of Pakistan under Articles 218 and 219 of the Cqnstitution read with Sections 103 and 103AA of Representation of People Act, 1976 is independent to the jurisdiction of an Election Tribunal established in terms of Article 225 of the Constitution for trial of an election petition in accordance with the procedure provided under Representation of People Act, 1976, therefore, the High Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution cannot substitute its opinion for the opinion of Election Commission of Pakistan on a question of fact in election matter.
(h) The Election Commission of Pakistan in exercise of power under Section 103AA of Representation of People Act, 1976 after holding a summary inquiry into the facts to its satisfaction, may pass an appropriate order without holding a regular inquiry or recording the evidence in the manner as is required for trial of an election petition by the election Tribunal. The Commission thus by way of tentative assessm ent of the facts and circumstances of the case with a view to ensure the fair, honest and transparent election, can pass an order as is considered proper.
(i) The High Court, due to misconception of law, held that the Election Commission of Pakistan under Section 103AA of Representation of People Act, 1976 can declare election as a whole void and has no jurisdiction or power to direct re-poll at a particular polling station.
(j) The transfer of polling officers at 17 polling stations, a day before the - poll, without permission and knowledge of Election Commission of Pakistan was violative of the mandatory provisions of Section 9(2) of the Representation of People Act, 1976 which would render the election, at these polling stations illegal.
37. In support of the above contentions, learned counsel has placed reliance on Ghulam Mustafa Jatoi v. Additional District & Sessions Judge (1994 SCMR 1299 (at page 1320), Mir Ghalib Domki v. Election Commission of Pakistan, Islamabad and 6 others (PLD 2006 Karachi 314) and (1989 CLC 1833).
38. The learned counsel on factual side, has contended as under:--
(i) The Presiding officer of 17 polling stations were transferred on 17.2.2008 i,e, a day before the election and at one polling station a lecturer and a trained polling officer was substituted with a member of para-medical staff. These transfers in violation of mandatory provisions of Section 9 of Representation of People Act, 1976 rendered the election at the relevant polling stations void as no Presiding Officer could be changed or transferred by the Returning Officer at least 15 days before the day of poll without permission of Election Commission of Pakistan. In consequence thereto, the transparency of the election at the relevant polling stations was affected which would be evident from the ratio of poll and the difference of voters of the petitioner and his opponent at specified polling stations in kacha area, therefore, Election Commission of Pakistan in exercise of power under Section 103-AA of Representation of People Act, 1976 has rightly directed re-poll at these polling stations.
(ii) That at 22 polling stations situated in katcha area, the respondent secured 28137 votes whereas the petitioner had only 61 'votes and the ratio of votes of the petitioner at remaining polling stations of the constituency, would ipso facto show that ratio at these polling stations was abnormal and manipulated. The difference of votes at the polling stations of katcha area and ratio of votes at remaining polling stations of the constituency, would evidently show that the votes were polled in favour of respondents winning candidates in the initial Court by means of pre-poll rigging therefore, election at these polling stations was not transparent and was certainly not conducted honestly, justly, fairly and in accordance with law. Learned counsel with comparison of the result- sheet prepared by the polling staff at the polling stations of katcha area and the remaining polling stations of constituency, has submitted that in kacha area no preventive measure to guard the corrupt practices for desired result was taken and consequently, the election was not fair and transparent at the above referred particular polling station of kacha area.
(iii) This is an admitted fact that women polling staff was not available at women polling stations of katcha area as a result of which women voters did not turn up to poll their votes but the ratio of poll at these polling stations was equal to male voters. The poll of maximum number of male and female votes by itself would suggest the rigging at large scale at these polling stations. In support of the argument, learned counsel has placed reliance on Attique Ahmed Kamal us. The State (2004 SCMR 313). In support of the arguments, learned counsel has also placed reliance on Bhartha Ram Vs. Lala Meher Lal and another (1995 SCMR 684), In Re: Ahad Yusuf (1986 CLC 1284); Yousuf Munir Sheikh Vs. Erection Commission of Pakistan (2005 CLC 123) and Syed Saeed Hussain Vs. Fyar Ali (PLD 1976 SC 6); Ghalib Domki Vs. Election Commission of Pakistan (PLD 2006 Karachi 314).
3. The learned counsel next argued that Dr. Arslan, a candidate for the seat of Provincial Assembly from same constituency, also moved a similar application to the Chief Election Commissioner for re-polling at certain polling stations on same grounds and due to the mixing up of the Returning Officer with the opposing candidates, the election at the polling stations in question was not conducted in a fair and transparent manner which has materially affected the result. The difference of votes at particular polling stations would clearly, show that result was procured in favour of winning candidates and consequently, no exception cold be taken to the well reasoned and calculated order passed by the Election Commission of Pakistan in discharge of its Constitutional duty whereas the High Court without taking notice of violation of mandatory provisions of Section 9 (2) of Representation of People Act, 1976, and irrational ratio of poll and votes, laid much stress on the question that it was beyond the jurisdiction and power of Election Commission of Pakistan to entertain the complaint and declare the poll void at certain polling stations under Section 103-AA of Representation of People Act, 1976, and held that controversy of the nature could not be resolved in summary proceeding before the Election Commission without recording evidence which is the function of Election Tribunal constituted under Section 52 of the Representation of People Act, 1976.
39. In the light of law laid down by the superior Courts referred hereinabove, the learned counsel has concluded that the interference of the High Court in the order passed by Election Commission of Pakistan, a constitutional forum, was beyond the scope of judicial review of the High Court under Article 199 of the Constitution and the order of the Election Commission of Pakistan, was quite in accordance with the spirit of Articles 218 and 219 read with Section 103-AA of Representation of People Act, 1976 to be questioned and added that this is an established principle of law that the Authority which has the power to pass the final order; can also pass an interim order and similarly the Election Commission of Pakistan if is empowered to declare the election of a constituency as a whole void, can also declare election at one or more polling stations of the said constituency void and direct for partial re-poll at these polling stations.
40. Mr. Abdul Hafeez Pirzada,- learned Sr. ASC, counsel for respondent, on the other hand, has opposed this petition on various grounds and by raising number of questions of law herein below has contended that this petition being without any substance must fail both in law and facts :-
(a) The report of Returning Officer would clearly show that there was no violation of law or rules and situation was not abnormal at any polling station to bring the case within the ambit of Section 103-AA of the Representation of People Act, 1976. The change of polling staff at certain polling stations was essential in the emergent situation, in which the Returning Officer even had no time to inform the District Returning Officer or Election Commission of Pakistan.
(b) The Returning Officer having consolidated the result as per, requirement of law announced it on 19.02.2008 which was forwarded to the District Returning Officer on the same day and Mr. Aftab Shahban Mirani, visualizing his defeat, sent an application on 19.2.2008 in advertence through fax to the Election Commission of Pakistan wheiein the prayed for declaring the entire election in the whole of the constituency void in general terms which would show that the grievance of the petitioner was of the nature beyond the scope of powers of Election Commission of Pakistan under Section 103-AA of the Representation of People Act, 1976. The prayer made therein was to the following effect:-- "To ensure the ends of justice, it is requested that notification regarding NA 202-Shikarpur I, be withheld, an enquiry be conducted to prove the facts stated above, and if proved correct, I would himbly request you to please cancel the election of NA 202-Shikarpur I and hold fresh elections."
41. Learned counsel with reference to the report submitted by the District Returning Officer on 26.2.2008, contended that factual position mentioned therein would show that complaint contained controversial questions of fact which could not be decided in summary proceedings before the Election Commission of Pakistan and the ground taken before the Election Commission for the purpose of invoking its jurisdiction under Section 103-AA of the Representation of People Act, 1976 would squarely suggest that matter was of the jurisdiction of Election Tribunal.
(c) That pending disposal of application before the Election Commission of Pakistan, petitioner filed a Constitution petition in the High Court of Sindh, Karachi on 25.02.2008 wherein the same relief was claimed and learned Chief Justice of High Court of Sindh taking cognizance of the matter passed a restraint order in departure to the normal practice and rule regarding fixation of the Constitution petition before the Division Bench. The restraint order was passed on 25.02.2008 as under:-- ".... Since in the identical petitions, pre-admission notice have been issued to the respondents and interim stay has been granted for not announcing official result till the next date of hearing. In this petition pre-admission notice is also issued to respondents and the official respondents are directed not to announce official result till the next date. Adjourned to 28-2-2008."
42. The Election Commission of Pakistan meanwhile issued notification for the establishment of Election Tribunals and this is settled principle of law that after establishment of Tribunal, Election Commission of Pakistan would become functus officio to exercise the powers under Section 103-AA of the Representation of the People Act, 1976 and instead of taking cognizance in the complaint, should have directed the petitioner to avail the remedy of election petition.
43. Placing reliance on Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer, N.A. 158, Noshehro Feroz and another (1994 SCMR 1299) learned counsel contended that in the given situation respondents have no other remedy except to invoke the jurisdiction of High Court against the order of Election Commission of Pakistan and consequently in the present case writ petition against the order of Election Commission of Pakistan was competent.
(d) The order dated 4.3.2008 passed by the Election Commission of Pakistan by virtue of which result of 18 polling stations was annulled, was passed without proper inquiry so much so the Returning and District Returning Officer were not summoned and admittedly due to tribal and ethnic division, difference in the ratio of votes was quite natural, therefore, the Chief election Commissioner in the larger interest of justice, instead of following the procedure of summary inquiry should have referred the petitioner to avail remedy of election petition before the election Tribunal in the interest of safe administration of justice and with reference to the letter dated 20.2.2008 sent by Returning Officer to Provincial Election Commissioner, Karachi submitted that Returning Officer having compiled the result on the prescribed forms sent the same to District Returning Officer on 20.2.2008 and none of the candidates raised any objection to the compilation of result. The letter referred to above sent by the Returning Officer, is read as under :-- "To The Provincial Election Commissioner Karachi.
44. Through: The Honourable District Returning Officer, District & Sessions Judge, Shikarpur.
45. Subject:- CONSOLIDATED STATEMENT OF THE RESULT OF THE COUNT AS FURNISHED BY THE PRESIDING OFFICERS FOR CONSTITUENCY NA-202 SHIKARPUR (OLD SHIKARPUR-I)
46. Respected Sir, It is intimated to your goodself that the consolidated statement of the result of the count as furnished by the Presiding Officer, who were performing the duties at 189 polling stations of the constituency NA-202, Shikarpur (Old Shikarpur-I), has been prepared at 1000 am on 20.2.2008, as no objector has come forwarded to raise the objection on the results of the constituency to which result, three copies of the same plus USB is being communicated to you for further action pleas.
47. The form XVII, Result of the Count coupled with form XVIII and XIX are annexed herewith for further proceedings.
48. Sd/- (Ahmed Saba)
49. Returning Officer, Addl: Sessions Judge No:4 Shikarpur NA-202, PS 11 and 12 of Shikarpur."
(e) In the light thereof, learned counsel submitted that the result of the election cannot be stalled or defeated by the Election Commission by refusing to publish the name of the returned candidate in the official Gazette as required by Section 39(4) of the Ordinance, therefore, it was mandatory for the Election Commission of Pakistan to declare the result with direction to the petitioner to avail the remedy of election petition before the Tribunal as after the official announcement of result and establishment of the Tribunal, no other forum including election Commission can competently entertain a petition involving election dispute whereas in the present case, election commission directed re-poll at 18 polling stations, therefore, in these circumstances, no exception can be taken to, the interference of the High Court of Sindh in the matter. Learned counsel placing reliance on Syed Saeed Hassan Vs. Pyar Ali and others (PLD 1976 SC 6) wherein, term "corrupt and illegal practices" and "satisfaction" have been interpreted contended that the conclusion of the High Court that the order of Election Commission of Pakistan wherein 65% maximum percentage of voting was fixed being irrational, was illogical and against the spirit of law.
(f) Learned Senior ASC, in the light of judgment of this Court in M/s. Gadoon Textile Mills and 814 Others Vs. WAPDA and Others (1997 SCMR 641 and Watan Party through President Vs. Federation of Pakistan and others (PLD 2006 SC 697), has contended as under:--
(i) The function of constitutional bodies such as Council of Common Interest and Election Commission of Pakistan are to control and, regulate the policies and overall supervision of the matter within their constitutional domain and this supervisory functions of Election Commission under Articles 218 and 219 of the Constitution read with Representation of the People Act, 1976 and Election Commission Order, 2002, are subject to Article 225 of the Constitution;
(ii) The Commission is certainly empowered to give directions in certain matters as controlling authority of election and in case of any disturbance at a polling station, the polling officer can stop the polling temporarily under Section 27 of the Representation of the People Act, 1976, and if stop of poll was not temporary, the Commission may pass an order of re-poll at a subsequent date but in the present case, no such situation arose at any polling station to justify the interference of election commission under Section 103-AA of Representation of the People Act, 1976.
50. (iii)Procedure provided under Sections 37 and 38 is followed on the close of poll for consolidation of result under Section 39(4) of the ibid Act and procedure for filing election petition to challenge an election either on the ground of procedural irregularities or violation of substantive provisions of law before the election Tribunal is provided under Sections 52 to 56 of 1976 Act. The Tribunal under the law is empowered to declare the entire election as null and void or declare the next candidate successful whereas Election Commission of Pakistan under Section 103-AA of ibid Act, only in grave and exceptional situations, may declare the election of a constituency as a whole void. In the light of the above provisions, learned counsel has questioned the legality of the order of the Election Commission of Pakistan mainly on the grounds of patent illegality, irrationality, lack of procedural propriety and failure in the duty to act fairly in determination of correct factual position and in support thereof, has relied on the judgment in Council of Civil Service Unions and others Vs. Minister for the Civil Service ([1984] 3 All ER 935 at page, 936, 950 & 954): (iv)Learned counsel next submitted that High Court having considered each and every aspect of the case, formed an opinion that the order of Election Commission of Pakistan was suffering from jurisdictional defect as well as legal and factual infirmities as neither the Returning Officer and District Returning Officer was called and examined nor the provisions of Election Commission Orders, 2002 on the subject were followed.
(v) The application under Section 103-AA of 1976 Act, was vague which was also not verified on oath and since there was no evidence of rigging, therefore, Commission was not justified to direct for re-poll at few polling stations in exercise of its limited jurisdiction of summary inquiry into the matter for ancillary purposes and placing reliance on Muhammad Mubeen-ul-Islam v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602) submitted that Election Commission of Pakistan while exercising powers under Section 103-AA of the Act 1976, is deemed to be an election Tribunal and consequently, it was incumbent upon the Commission to hold a proper inquiry in the matter to resolve controversial question of facts in discharge of his duty in accordance with law failing which the order passed by the Commission would be of no consequence.
51. (vi)The Commission does not enjoy unbridled powers to pass any order rather the Commission in exercise of its powers under Section 103-AA of the Act 1976, can only declare election of a constituency as a whole void and cannot in its discretion, choose partial declaration of election void at a few polling stations. Learned counsel thus asserted that legislature has conferred the power of election Tribunal of declaring election void on the Commission under Section 103AA of Act 1976 with the intention and purpose to exercise such power in exceptional situations to ensure transparent, honest, just and fair election and not in normal cases of minor irregularities.
(vii) The wisdom of law in conferring of the power of election Tribunal to the Election Commission was that in case of extensive disturbance or corrupt practices, which may have material effect on the result, the Commission may hold a summary inquiry under Section 103-AA of Act, 1976 to ascertain the correct factual position to pass an appropriate order but interference in the election on the basis of allegation of illegal practices at a particular polling station is beyond the scope of power of Commission under Section 103-AA of Representation of the People Act, 1976. The re-poll at a polling station is possible only in a case in which for any reason, polling officer stopped the poll under Section 27 of the Act and voters have not been able to exercise their right of franchise and in such a case Commission may order re-poll at such polling station. Learned counsel has referred Mir Ghalib Domki v. Election Commission of Pakistan, Islamabad and 6 others (PLD 2006 Karachi 314 in support of the proposition.
(vii) The respondent was notified as returned candidate and Election Commission of Pakistan in consequence to the order of status quo passed by this Court, unjustifiably withdrew the notification with the effect that Commission has become a party to the proceedings and in the circumstances, the interest of justice would demand the High Court to undo the injustice done with the returned candidate.
52. After preliminary hearing, vide order dated 30.3.2008, the following questions were formulated for consideration:-- a. What is the scope of jurisdiction of Election Commission of Pakistan under Section 103 read with Section 103-AA of the Representation of the People Act, 1976 and the Election Commission of Pakistan after establishment of Election Tribunals in terms of Articles 225 of the Constitution becomes functus officio to invoke its jurisdiction under Section 103-AA ibid. b. Whether the Election Tribunals established under Representation of the People Act, 1976 have parallel jurisdiction with Election commission of Pakistan or the two forums have independent areas of jurisdiction. c. In the light of law laid down by this Court in "Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396). Ghulam Mustafa Jatoi v. Additional District & Sessions Judge (1994 SCMR 1299).
53. Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan (PLD 2005 SC 52). Abdul Majeed Khan v. District Returning Officer (2006 SCMR 1713)" and subsequent decision, passed in Civil Petition No, 1 of 2008 Ch. Muhammad Arif Hussain v. Rao Sikandar Iqbal and others what is the scope of judicial review of the High Court under Article 199 of the Constitution in election matters. d. Whether the High Court in exercise of powers of judicial review can substitute its opinion with the opinion of the Election Commission of Pakistan or Election Tribunals, as the case may be, on the factual controversy.
54. In view of the contentions raised by the learned counsel for the parties two additional questions have been framed for consideration as under:--
1. What is the scope of powers of Election Commission of Pakistan under Articles 218 & 219 of the Constitution read with Section 103-AA of Representation of the People Act, 1976?
2. Whether the Commission in exercise-of the power available to it under the law, without recording evidence can hold a summary inquiry and proceed to pass an order of re-poll on the basis of allegation of unfair and unjust election at particular polling stations.
55. At the first instance, we would prefer to examine the question relating to the scope of judicial review of the High Court under Article 199 of the. Constitution. This is settled law that unless there are special reasons, the High Court in exercise Of its Constitutional jurisdiction should not interfere and adjudicate an election dispute. The extraordinary remedy of writ petition can be availed in election matters in exceptional circumstances in a case of grave illegality in which an aggrieved person has no other statutory remedy for redressal of his grievance. The law require every statutory authority to act within the limits of law and if such an authority exceeds the limits of law or fails to function as per requirement of law and proceeds to pass an order beyond the scope of law and his authority, the High Court under Article 199 of the Constitution can declare such an order as without lawful authority and of no legal effect.
56. The above rule is subject to the exception that if the statutory authority in exercise of jurisdiction within ;the limits of law passes an order in discharge of his duty and an aggrieved person can avail alternate remedy before a forum established under the law against such order, the invoking of writ jurisdiction of High Court in such matter for mere reason that the alternate remedy before the forum concerned cannot be availed for the time being, is not proper. In Ghulam Mustafa Jatoi Vs. Additional District & Sessions Judge/Returning Officer, N.A 158, Noshehro Feroz and another (1994 SCMR 1299) this Court held that in election matters, the High Court can entertain a writ petition and exercise jurisdiction in exceptional circumstances if no other remedy is available to an aggrieved person and we without taking any exception to the above judgment hold that jurisdiction of the High Court under Article 199 of the Constitution can certainly be invoked in exceptional cases but mere reason that for the time being no alternate remedy can be availed, is not as such a sufficient and valid ground to invoke constitutional jurisdiction of the High Court in a matter in which a constitutional forum or a statutory authority in exercise of 'its jurisdiction has passed a just and proper order. This is consistent view of this Court that .mere availability of an alternate remedy may not preclude institution of a Constitution petition as the sub-constitutional law cannot limit or control the jurisdiction of the High Court under Article 199 of the Constitution and this is well established law that the superior Courts in exercise of constitutional jurisdiction may set aside the action taken or orders passed in illegal and unlawful manner. The High Court in an election matter, may in exercises of its jurisdiction under Article 199 of the Constitution grant an appropriate relief if an aggrieved person after exhausting sub-constitutional remedies available under the law, has questioned the legality of the order passed by an election authority on a legal question of Constitutional importance.
57. The conduct of elections is exclusive function of Election Commission of Pakistan, a constitutional forum and this function is performed by the Commission as its constitutional duty under Articles 218 and 219 of the Constitution read with Section 103 read with 103-AA of the Representation of the People Act, 1976, therefore, the High Court in exercise of its power of judicial review under Article 199 of the Constitution is not justified to interfere in the orders passed by the Election Commission in the process to ensure fair and transparent election and substitute its own opinion for the opinion of commission about the matter. This Court in the case of Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396) having considered the scope of Article 199 with respect to the election matters has held that interference of the. High Court in the election process or election disputes may not be justified. However, an exception to the above general rule has been created in Ghulam Mustafa Jatoi case supra and in Rao Sikandar Iqbal case (C.P. No, 1 of 2008) wherein it was held as under :-- "There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfill requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its Constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process.
58. Article 225 of the Constitution, provides that no election to the house of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interfere to uphold the constitutional mandate. In the case of Election Commission of Pakistan vs: Javed Hashmi (PLD 1989 SC 396), question was raised regarding jurisdiction of High Court under Article 199 vis Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive" domain of Election Commission and similarly 'a dispute concerning with the election, would definitely be subject matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a pre-requisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict to the provision of Article 225 of the Constitution.
59. The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
5. The relief claimed in the Constitution petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The order passed by the election authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction."
60. In the case in hand the proposition involved is in respect of the function of Election Commission of Pakistan to conduct transparent, just and fair election in accordance with law.
61. The petitioner lodged complaint to the Election Commission of Pakistan on 19.2.2008 wherein on the basis of allegations of unfair and planted poll of votes at certain polling stations sought cancellation of result and the Commission after verifying the correctness of the allegations in the light of reports of Returning Officer and District Returning Officer and holding a summary inquiry was satisfied to form opinion that election at the polling stations in question was not conducted fairly, justly, honestly and in accordance with law, therefore, deemed it just and proper to pass the order of re-poll at these poling stations in exercise of its power under Section 103-AA of Representation of the People Act, 1976. The order passed by the commission was based on the consideration of failure of the election authorities to strictly follow the procedure of law which reflected on the transparency of fair election and which was evident from abnormal ratio of votes polled in favour of returned candidates. The careful perusal of order of Election Commission of Pakistan, would reveal that order was passed after detail discussion of legal and factual aspects of the case, therefore, High Court in exercise of its jurisdiction under Article 199 of the Constitution was not supposed to substitute its own opinion for the opinion of Election Commission of Pakistan on the question of fact. There is no concept of encroachment into the area of jurisdiction of a forum established under the Constitution for the mere reasons that the order passed by such a I forum is subject to judicial review of the superior Courts rather the concept is that the Superior Courts must follow the rule of reasonableness in exercise of discretionary jurisdiction and must not sparingly exercise such powers in a manner which may disturb the functioning of other Constitutional bodies. In support of the proposition, reference may be made to Multiline Associates v. Areshir Cowasjee and 2 others (PLD 1995 SC 423) in which it was held that Court has to see that discretion is to be exercised in such a way that mischief and chaos is prevented.
62. In consequence to the above discussion, we hold that the scope of interference of the High Court in its jurisdiction under Article 199 of the Constitution in election cases is very limited to the extent of matters which do not exclusively fall within the ambit of jurisdiction of election Tribunals or Election Commission of Pakistan Or in respect of the orders which are coram-non-judice, without jurisdiction or mala fide. The interference of the High Court in the orders passed by Election Commission of Pakistan in discharge of its duty in terms of Articles 218 & 219 of the Constitution read with Sections 103 and 103-AA of Act, 1976 in the normal circumstances is not justified.
63. The next question for examination relates to the power of Election Commission of Pakistan under Sections 103 and 103AA of Representation of the People Act, 1976 and the interpretation of these provisions in the light of Article 225 read with 218(3) and 219 of the Constitution and Section 52 of the Representation of the People Act, 1976. The plain reading of Section 103 read with Section 103- AA of Act, 1976 would show that Election Commission of Pakistan on the complaint lodged by a candidate or his agent or polling staff or any other person if finds that in the situation mentioned therein, it would not possible to ensure fair, just and transparent election in a constituency as a whole or at a particular polling station, may after holding summary inquiry declare election in the constituency as a whole void and direct for re-poll in the constituency and if such a situation is confined only to the extent of some of the polling stations, may direct re-poll at .these polling stations. The power of Election Commission of Pakistan under Section 103-AA is entirely independent to the power to be exercised in an election petition by the election Tribunal established, under Section 52 of Act 1976 in terms of Article 225 of the Constitution, therefore, the - contention of the learned counsel for the respondent that power of the Commission under Sections 103 and 103AA of Representation of the People Act, 1976 is subject to Chapter-VII of the said Act as the Commission by virtue of sub-section (3) of Section '103-AA of Act, 1976 has to perform its functions as Tribunal has no substance. The Commission despite having been declared as Tribunal under Section 103-AA(3) of the Act is empowered to adopt any procedure in the proceedings of summary inquiry before it and is not bound to follow the procedure of Tribunal or record the evidence and hold a regular inquiry.
64. The additional power of Tribunal given to the Commission under sub-section (3) of Section 103-AA ibid would not change the status, power and functions of the Commission.
65. The Commission to ensure free, fair and transparent election, exercises powers under Section 103 of Act, 1976 as under:--
103. Commission to ensure fair election, etc.--Save as otherwise provided, the Commission may-
(a) stop the polls at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion intimidation and pressures, prevailing at the election;
(b) review an order passed by an officer under this Act or the rules, including rejection of a ballot paper; and
(c) issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly and fairly, and in accordance with the provisions of this Act and the rules."
66. Section 103-AA empowers the Commission to declare the election void if there is a grave violation of ' the provisions of act or rules and if Commission comes to the conclusion that due to such violation election was materially effected and disturbed, may pass order, of re-poll in whole of the constituency or at one or more palling stations as the case may be in the interest of fair, honest and transparent election. The power of declaring the election partial void and re-polling at some polling stations, is included in the power of declaring election of a constituency as a whole void.
67. Section 103-AA provides as under:-- "103-AA. Power of Commission to declare a Poll void.--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of record and after such summary inquiry as it may deem necessary, it is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the, poll in any constituency ought to be declared void and by notification in the official Gazette; call upon that constituency to elect a member in the manner provided for in Section 108 (2) Notwithstanding the publication of the same or a returned candidate under sub-section (4) of Section 42, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented, and shall, notwithstanding anything contained in Chapter VII, regulate its owner procedure".
68. The careful examination of above referred two provisions in the light of Articles 218 and 219 of the Constitution would make it clear that the Commission with the view to discharge its constitutional duty to conduct the election honestly, fairly and justly in a transparent manner and in accordance with law has been empowered to declare the elections in the constituency as a whole void or at one or more polling stations if the circumstances so warrant. This power is exercisable by the commission within 60 days from the date of publication of the name of returned candidate in the official notification whereas the limitation for filing election petition under Section 52 of the ibid Act is 45 days from the date of publication of the notification of result, therefore, there is no conflict between the two provisions. The commission under Section 103 ibid can pass an appropriate order to ensure fair, just and transparent elections during the process of election and under Section 103- AA ibid if the Election Commission after holding a summary inquiry is satisfied that a grave illegality has been committed in the election which would be a source of impairing the result, may declare the election of the constituency as a whole void or of the specified polling stations as the case may be. The Commission while exercising the powers under Section 103-AA(3) shall be deemed to be a Tribunal and may regulate its own procedure. The 'expression' shall be deemed to be Tribunal authorizes the commission to exercise power of a Tribunal with the choice of any procedure to be regulated by it but the procedure provided in Chapter-VII of the Representation of the People Act, 1976, for the trial of election petition is not binding on the Commission. This may be noticed that the Commission has executory power under Section 103-AA to discharge its functions under Articles 218(3) and 219 of the Constitution whereas in an election petition the election of a returned candidate, is challenged on the basis of ground of corrupt and illegal practice or illegal act alleged to have been committed. In election petition precise statement of facts, including the names of parties who allegedly were responsible of committing illegal acts and corrupt practice in the- election with particulars of date, time and place and manner of Commission of such illegal acts and corrupt practice, have to be essentially supplied and election Tribunal on conclusion of trial in exercise of its powers under Section 67 of the Act may dismiss the petition, declare the election of a returned candidate void or declare any other candidate to have been elected or declare the election as a whole void whereas the Commission under Section 103-AA of Representation of the People Act, 1976, without undertaking the exercise of adjudication of the complaint as an election petition or holding a regular inquiry, can declare election wholly or partially void in a constituency in case of grave illegality or violation of rules which is brought to its notice during the process of election. There is no bar for a defeated candidate to raise such a ground in the election petition but mere fact that the remedy of election petition can be availed at a subsequent stage and ground of grave illegality and violation of rules which resulted in illegal and corrupt practices are also adjudicate able before election Tribunal in an election petition, may not debar the Election Commission to exercise powers under Section 103-AA of Representation of the People Act, 1976. The contention of the learned counsel for the respondent that if on the basis of ground mentioned in the application under Section 103-AA, remedy of election petition can be availed, the Commission must not exercise the powers and interfere in the matter during the election being beyond the wisdom of law, has no substance to be dilated upon. The Election Commission of Pakistan in discharge of its constitutional duty has to make all arrangements for the elections of the National and Provincial Assemblies at all stages. The function of Election Commission before the start of election process is only of ministerial nature and after the start of process, it is the duty of Election Commission to ensure that the election is conducted honestly, justly fairly and in accordance with law, therefore, the Commission has to take all necessary steps and measures to ensure that the, election is transparent in all respects and if in the process of election any illegality is committed or violation of law or rules is brought to its notice which may have material affect on the result of the election, the Commission will certainly undo such illegal acts and violation of law or rules in the interest of fair election. The Commission may not necessarily entertain a complaint on the grounds which can be raised in the election petition but mere fact that the ground taken in an application under Section 103-AA of Act, 1976, can be raised in the election petition, is not a valid reason to curtail or reduce the power of Commission to the extent of only issue of instructions and guidance to the concerned authorities in the process of election. The narrow interpretation of the above provisions of law in respect of power of Election Commission would virtually redundant these provisions and defeat the very purpose of law. The power of the Commission is not confined only to the extent of ministerial and administrative job of election rather the Commission also has to ensure free, fair and transparent election in terms of Articles 218 and 219 of the Constitution and consequently, the provision of Section 103 and 103AA have to be given effect in letter and spirit which empowers the Commission to supervise and ensure the conduct of election fairly, honestly, justly and in accordance with law. The different interpretation may redundant these provisions and this is settled principle of interpretation of statutes that redundancy cannot be attributed to any provision of law rather in the wisdom of legislature in case of any conflict of two provisions, the rule of harmonious interpretation is followed. The reference may be made to the case of Al-Jehad Trust Vs. Federation of Pakistan (PLD 1996 SC 324) and relevant part of the judgment is read as under: "Where there is conflict between the two provisions, the entire provisions of the Constitution are required, to be read as a whole, and the basic features of the Constitution taken into consideration."
69. The emphasis of the learned counsel for the respondent that the Election Commission without holding proper inquiry could not exercise powers under Section 103-AA of the Act to declare the election of a constituency as a whole void and there is also no concept of partial declaration of election void, has no legal foundation. The Election Commission of Pakistan may exercise power under Section 103-AA of the Act in the manner provided therein and not beyond that, but the plain reading of Section 103-AA of the Act would show that meaning of expression "in the constituency void" is not only referable to the whole constituency rather its true import is election in the constituency as a whole or at one or more polling station. It was held in 'Abdul Hamid Khan Achakzai v. Election Commission of Pakistan (1989 CLC 1833)" as under: "Election Commission's jurisdiction for declaring election of the whole constituency as void would depend on being satisfied about the existence of grave illegalities or serious violations of the provisions of the Act, LXXXV of 1976 or Election Rules in the conduct of polls in any constituency".
70. It was further held that :-- "No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of Section 103-AA but such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation".
71. In view of above discussion we hold that Chapter X as well as Sections 103 and 103AA of Representation of the People Act, 1976 are entirely independent to Section 52 of the Act and the Commission before or after issue of notification of result of election, may exercise jurisdiction to entertain a complaint on the grounds mentioned therein and may continue to exercise the power within 60 days after official announcement of result of election whereas an election petition can be filed within 45 days of the publication of notification of result and election petitioner can take all these grounds which were taken in the application under Section 103-AA of 1976 Act 'before the Election Commission and thus jurisdiction of Commission to some extent is concurrent with the Tribunal without any conflict.
72. The careful examination of complaint would suggest that the illegalities and irregularities committed in the election were grave in nature which may have materially affected the result. The conclusive evidence and proof of facts regarding illegal and corrupt practices is not the requirement of law for exercise of powers by the commission under Section 103-AA of Representation of the People Act, 1976 rather the Commission if on the basis of tentative assessm ent of the material available before it is satisfied regarding the correctness of the allegation, may pass such an order as is deemed, proper in the circumstances of the The perusal of complaint, reveals that petitioner sought interference of Commission mainly on the basis following three grounds:--
(a) A day before the election, Returning Officer transferred polling officers of 17 polling staff without permission of Election Commission and
(b) The ratio of vote on poling stations of kacha area including women polling stations was unnatural
(c) The women polling staff was not available at certain polling station which resulted in bogus voting of women as these polling stations.
73. The Election Commission of Pakistan in the light of facts supplied by the petitioner in the complaint and the subsequent application moved by him as well as the reports obtained from the Returning and District Returning Officer and keeping in view the ratio of votes secured by the petitioner at 171 polling stations with large difference of ratio at disputed polling stations of katcha area and other relevant material in support of the allegation of unfair and unjust election proceeded to pass the order of re-poll at 18 polling stations to ensure the fair, just and honest election in accordance with law. The Returning Officer and. the District Returning Officer have not controverted the transfer of polling staff at 17 polling stations on 17.2.2008 therefore, notwithstanding the fact that in the complaint, the detail of only one polling station was supplied, the large scale of transfer of polling officers by the Returning Officer without information and knowledge of. District Returning Officer or intimation of the Election Commission was grave illegality. This is mandatory under Section 9(2) of Act, 1976, that. Returning Officer at least 15 days prior to the day of poll cannot change the polling staff without permission of the upon and departure thereto, has serious consequence reflecting upon the transparent, fair, just and honest conduct of election which may impair the result. This is also noticeable that women polling staff was not provided at women polling station but still women votes were polled with the same ratio of the votes which were polled at male polling stations. The excuse for non-availability of women polling staff was that it was not possible for female to discharge duty in the area due to security reasons but at the same time without any scrutiny, women voters polled their votes and consequently, this contradiction would sufficiently suggest that at the women polling station bogus votes were polled in absence of women polling staff. In view of the transfer, of polling staff one day before the poll and difference of the ratio of votes secured by the parties at 171 polling stations and at the polling stations of kucha area, where re-poll has been ordered, coupled with the fact that women poling staff was not available, would be the strong evidence and circumstances to show unfair and unjust election at certain polling stations of the constituency and change of result in artificial manner. In these circumstances, the commission was neither required to record evidence nor hold a regular inquiry rather could conveniently proceed to declare the election void at these polling stations and direct for partial re- poll in discharge of its constitutional duty of holding transparent elections. In the light of the above features of the case, the High Court in exercise of its constitutional jurisdiction was not supposed to substitute its opinion with the opinion formed by Election Commission on the basis of material available before it and we having considered the matter in detail, have not been able to find that order passed by the Election Commission of Pakistan was suffering from any jurisdictional defect or was coram non judice or mala fide to be justifiably interfered by the High Court in its constitutional jurisdiction.
74. Learned counsel for the petitioner in the connected petition bearing CP No, 370/2008 has submitted that same questions of law and facts are involved in this petition, therefore he has nothing to add and would adopt the arguments of learned counsel for the petitioner in CP No, 369/2008, in support of this petition.
75. In view of the above, the order passed by the Election Commission in exercise of its constitutional jurisdiction and statutory discretion being not suffering from any legal defect, was not questionable before the High Court in writ petition. The mere reason that in the circumstances of the case, the Election Commission could also take a different view of the matter and direct the petitioner to avail remedy of election petition under Section 52 of the Act was not a valid and legal ground to interfere in the order of Commission in the writ jurisdiction. The Election Commission of Pakistan consists of a Chairman and four Judges of the High Courts, the Chairman is a retired Judge of the Supreme Court of Pakistan and the Members are serving Judges of the High Courts and this high powered constitutional body exercises jurisdiction under the Constitution therefore, the observation of the High Court that order passed by the Election Commission was capricious, mechanical and arbitrary, was uncalled for and not proper. The High Court no doubt can set aside the order passed by the Election Commission if it comes to the conclusion that order was illegal but care must be taken by using the language for such forum .which exercises powers under the Constitution as a judicial forum. The above expressions used in the judgment are not used for such constitutional or judicial forum which are not at par to the non judicial bodies and forums and consequently, we expunge the above observation made in the judgment of the High Court. These are the reasons of our short order of even date, which reads as under:-- "For the detailed reasons to be recorded later on, we having heard the learned counsel for the parties and Attorney General for Pakistan and having considered the questions of facts and law raised in these two connected petitions, set aside the judgment dated 28.3.2008 passed by the High Court of Sindh, at Karachi, rendered in C.P. Nos, 454 & 455 of 2008 and restore the order dated 4.3.2008 passed by the Election Commission of Pakistan. These petitions are accordingly converted into appeals, and allowed with no order as to costs."