JUDGMENT.
FAIZ MUHAMMAD KHAN, J.-Election to the Union Council, Dag Ismail Khel was held on 25-9-1979.
Tameez Gul, Mumtaz Ali, Misri Khan, Habibur Rehman and Muhammad Zareen offered themselves as candidates for that election. The votes were polled and as a result, Mumtaz Ali and Misri Khan were declared elected from Ward No. 2, known as Speen Khak, of the said Union Council. Their names were notified as such.
2. Tameez Gul, petitioner herein, filed an Election Petition before the Election Tribunal calling in question the election of Mumtaz Ali, respondent No. 1, herein, as void. He prayed before the Election Tribunal that in place of Mumtaz Ali, he may be declared as elected to one of the seats from Ward No. 2 of the said Union Council. The grounds taken up in the Election Petition were that the petitioner and one other person, Iqbal Hussain by name, who was contesting election for a seat in the District Council, were both allotted `Key' as their election symbol, which was duly marked by both of them on their ballot boxes and thereby illiterate voters were misled with the result that 13 votes meant for the petitioner were found lying in the ballot box of the said Iqbal Hussain, and if the said votes had been correctly polled in the petitioners ballot box and counted towards his lot he would have won the seat as against Mumtaz Ali respondent No. 1, who was otherwise declared elected by the margin of one vote ; that some of the votes polled did neither bear the signature nor the official seat of the Presiding Officer ; that Mumtaz Ali respondent contested election on party basis and that Mumtaz Ali respondent committed corrupt and illegal practice during the election.
3. The Election Petition so filed was contested by Mumtaz Ali and other respondents. After allowing the parties to produce such evidence as they wished to produce, the learned Election Tribunal, by a detailed order, dismissed the Election Petition filed by Tameez Gul. Not satisfied with the order made by the Election Tribunal, Tameez Gul has filed this constitutional petition wherein the order made by the Election Tribunal has been assailed, as also the election held whereat Mumtaz Ali respondent was declared elected from Ward No. 2, as member of the Union Council, Dag Ismail Khel. The petitioner has further prayed that the respondents 6 and 7 be directed to declare him as elected, in place of Mumtaz Ali respondent, to the said Union Council from the said Ward.
4. This petition, however, proceeds on the sole ground that the petitioner and one Iqbal Hussain respondent No. 5, herein, who was contesting election for a seat in the District Council, were both allotted `Key' as their election symbol, which was marked by both of them on their Ballot Boxes kept in the common Polling Booth and this fact confused and misled the voters who resultantly put the votes meant for the petitioner, who was contesting for a seat in the Union Council in the ballot box of the respondent No. 5', who was contesting election for a seat in the District Council. It is further alleged in this petition that the petitioner had raised objection before the Presiding Officer before the polling started that the ballot box of the respon--dent No. 5, who was contesting election for a seat in the District Council, which bad on it marked `Key' as symbol, should be placed in a separate Polling Booth and not kept in the same Polling Booth in which the ballot box of the petitioner, which also had on it marked `Key' as symbol, was kept, or otherwise the chances were that the ignorant voters would get confused and place their ballot papers in a wrong box, but the Presiding Officer did not pay any heed to this objection. It is also alleged in this petition that on failing to have a proper response from the Presiding Officer, the petitioner and lqba1 Hussain respondent No. 5, agreed between themselves that if any ballot paper cast for any of them was found in the ballot box of the other, then it shall be counted towards the lot of the candidate for whom it really meant.
The petitioner alleges that at the count of the votes it transpired that 13 ballot papers meant for the petitioner were found in the ballot box of the respondent No. 5, which should have been counted by the Presiding Office in favour of the petitioner but this was not done. The petitioner alleges that had those 13 votes been counted for him, he would have got more votes e than the votes polled by the respondent No. 1, who was declared having won by the margin of one vote, and would have thus been declared elected. The petitioner has, therefore, prayed that in place of Mumtaz Ali respondent No. 1, he be declared as elected from Ward No. 2 of the Union Council, Dag Ismail Khel.
5. As already observed, this ground was agitated by the petitioner before the Election Tribunal but with no success. The Election Tribunal held that since the colour of the ballot papers and the ballot boxes for the election to the Union Council and the District Council was different, a voter with an ordinary common sense could easily differentiate between the different colours of such ballot boxes, which in the case of Union Council was white and in', the case of District Council was pink, and could place his vote in the correct ballot box. The Election Tribunal also held that throughout the Province the elections to the District Councils and the Union Councils were simultaneously held and the ballot boxes of all the candidates for such Councils were placed in the same Polling Booth, and the Presiding Officer had no authority to make any deviation for the petitioner. The Election Tribunal also held that accord--ing to rule 37 (1) of the N.-W. F. P. Election Rules, 1979 the Presiding Officer could only count for the petitioner those ballot papers which were found in his ballot box and not those which were found in the ballot box of the respondent No. 5. The Election Tribunal, therefore, did not accept this ground as valid for declaring the election of the respondent No. 1 as void.
6. The disputed election was held under the law, called the North-West Frontier Province Local Government Ordinance, 1979, hereinafter referred to as the said Ordinance, and the rules made thereunder. It is provided in section 39-A of the said Ordinance that no election held under the said Ordi--nance shall be called in question,, except by an election petition made by a candidate for that election. Section 39-B of the said Ordinance provides for the appointment of Election Tribunal for the purpose of the trial of election petitions. It is provided in subsection (2) of section 39-E of the said Ordinance that the decision given by the Tribunal on an election petition shall be final and shall not be called in question in any Court or before any other authority. From these provisions of law it is clear that the Legislature, in very clear terms, intended that all matters relating to the elections held under the said Ordinance should be disposed of by a special Tribunal constituted under the said Ordinance. The special law also attaches finality to the decisions made by such Tribunals. The petitioner has by filing this petition invoked the consti--tutional jurisdiction of this Court and such jurisdiction is only attracted to a f case in which the special Tribunal constituted under a special law has either violated the provisions of that law or the law laid down by the Superior Courts in respect thereto. In this view of the matter, we are fortified by the decision of the Supreme Court in cases Muhammad Sharif and another v. Muhammad Afzal Sohad etc. (PLD 1981 SC 246) and Abdur Rehman Bajwa v. Sultan and others (PLD 1981 SC 522). We have, therefore, to see whether in giving the decision the Election Tribunal has violated any provision of the said Ordinance of the rules made thereunder, or has ignored any rule laid down by the Superior Courts in regard to the point in controversy. .
7. The learned counsel for the petitioner argued that the fact that the voters were misled while casting vote is obvious from the fact that 13 votes cast in favour of the petitioner, who was a candidate for a seat in the Union Council, were found in the ballot box of respondent No. 5, who was contesting election for a seat in the District Council. He contended that this confusion was created by the Election Authorities who allotted to the petitioner and the respondent No. 5, same election symbol, which was marked by both of them on their ballot boxes, which were placed in the same Pooling Booth. He contended that although the ballot box of the petitioner having marked on it 'key' as an election symbol was of the white colour and the ballot box of respondent No. 5, having marked on it 'key' as an election symbol was of the pink colour, yet it was very difficult for the ignorant and illiterate voters to differentiate between the two boxes of the different colours, having marked on it the same symbol of 'key'. He argued that it was also difficult for the voters to remember that for casting vote in favour of the petitioner they had to place ballot paper in the ballot box of the white colour and for casting vote in favour of the respondent No. 5 they had to put the ballot paper in ballot box having pink colour. He argued that this mistake had become apparent when 13 ballot papers meant for the Union Council candidate were found in the ballot box of the respondent No. 5. Referring to the result of the count, the learned counsel argued that had the 13 votes found in the ballot box of the respondent No. 5 been counted in favour of the petitioner, he would have been declared elected in preference to the respondent No. 1, who only secured 193 votes. He maintained that the Election Tribunal was not right in not counting those 13 votes in favour of the petitioner. He argued that since by the addition of those 13 votes the petitioner had secured more votes than the respondent No. 1, the election of the respondent No. 1, be declared as void and in his place the petitioner may be declared as elected from Ward No. 2 of the Union Council, Dag Ismail Khel.
8. We have given our anxious consideration to the arguments advanced by the learned counsel for the petitioner. The same point was pressed before the Election Tribunal but did not prevail, and we think, rightly so. Rule 37 of the North-West Frontier Province Local Council Rules, 1979, on which the Election Tribunal has also placed reliance, clearly provides that after the close of the poll the Presiding Officer shall open the ballot box of each con--testing candidate and count the valid ballot papers contained in the ballot box so opened. In the light of this rule the Presiding Officer could not legally count for the petitioner the ballot papers found in the ballot box of the respondent No. 5. Such ballot papers were not the ballot papers found in the ballot box of the petitioner and were, therefore, rightly excluded from the count in favour of the petitioner. Any contrary action taken by the Presiding Officer would have been in violation of the express language employed in rule 37 of the said Rules. Again, it is a mere conjecture that the voters who placed those 13 ballot papers in the ballot box of the respondent No. 5 had intended to cast vote in favour of the petitioner. There was no solid proof available for the fact that they had so intended. The possibility could also be that some other voters who did not have the intention of casting vote in favour of the petitioner had by mistake placed their ballot papers in the ballot box of the respondent No. 5. The case, therefore, could not be decided on conjectures. The decision of the Election Tribunal on this point is in accordance with rule 37 aforesaid.
9. The prayer made by-the petitioner before the Election Tribunal was that the election of the respondent No. 1 be declared void and in his place the petitioner be declared as elected to a seat in the Union Council, Dag Ismail Khel. The Election Tribunal could make this declaration under section 39-E of the said Ordinance. The law also provides in subsection (1) of section 39-F the grounds on which the Election Tribunal can declare the election of the returned candidate as void.
These grounds are that-
(a) the nomination of the returned candidate was invalid ; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member ; or
(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ; or
(d) a corrupt or illegal practice has been committed by the -,turned candidate or his election agent or by any other person with the con--nivance of the candidate or his election agent'
It is further provided in subsection (2) of this section that the Election Tribunal shall not declare void the election of a returned candidate on his ground-
(a) that any corrupt or illegal practice has been committed, if the Election Tribunal is satisfied that it was not committed by, or with the consent or connivance of that candidate or his election agent and that the candidate and the election agent took all reasonable precaution to prevent its commission ; or
(b) that any of the other contesting candidates was, on the nomination day, not qualified for or was disqualified from, being elected as a member.'
From these provisions of law if is clear .That the Election :Tribunal could unseat the respondent No. I only when the one or more of the grounds mentioned ire subsection (1) of section 39-F of the said Ordinance were proved. We have, carefully seen the material placed on the file-of the Election Tribunal and we are of the view that none of the grounds mentioned in subsection (1) of section 39- F was established before the Election Tribunal. Even if we do, not stop at the grounds mentioned in subsection (1) of section 39-F and hold that the election of the respondent No. 1 could be declared void on any other valid ground, yet from the record we find that no other ground was establish before the Election Tribunal on the basis of which it could declare the election of the respondent No. 1 as void. The record does not show that the respondent No. 1 was responsible for doing any mischief at the time of election o that he was responsible for any corrupt or illegal practice.
10. We are, therefore, of the view that while disposing of the election petition filed by the petitioner the Election Tribunal neither violated the relevant law or the rules, nor the law laid down by the Superior Courts in this regard. Within its sphere, the Election Tribunal was competent to take any view of the matter and the High Court, in exercise of writ jurisdiction, would not interfere in the decision of the Election Tribunal even though on the basis of the material placed before the Election Tribunal the High Court may come to a different conclusion.
11. There being no merits in this writ petition, it is hereby dismissed. No order as to costs.