Raja Saeed Akram Khan, C.J.--In the General Elections of 2021, the appellant, herein, filed an application before the Chief Election Commissioner of Azad Jammu and Kashmir for setting aside the order of returning officer of LA-XXXV-Jammu-II dated 25.07.2021 with a direction to conduct recounting of votes. A further direction was also solicited for not issuing the notification of returned candidate. The application was head by the Chief Election Commissioner and two Members of the Election Commission. At the conclusion of the proceedings, the Election Commission handed down the dissenting judgment on 27.09.2021 according to which the Members of the Election Commission dismissed the application, whereas, the Chairman Election Commission in exercise of powers conferred under Section 9 of the Azad Jammu and Kashmir Elections Act, 2020 declared the election of LA-XXXV as void.
3. At the very outset, a query was made to the learned counsel for the appellant regarding the maintainability of the instant appeal. They submitted that in Pakistan some amendments have been made in the Elections Act according to which the appeal before the Supreme Court is competent. Furthermore, according to the principle of law laid down by the apex Court of Pakistan in the case reported as Muhammad Salmon vs. Naveed Anjum [2021 SCMR 1675] the Supreme Court has got ample powers to convert the appeal into writ petition and send the same to the High Court for disposal.
4. We have heard the learned counsel for the appellant and gone through the record. Without touching the merits of the case, we would like to first of all resolve the point of maintainability of this appeal. In this regard, it would be useful to reproduce here Section 9 of the Azad Jammu and Kashmir Elections Act, 2020, which reads as follows: "9. Power of the Commission to declare a poll void.--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such inquiry as it may deem necessary, the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections.
Explanation. If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void.
(2) Notwithstanding the powers conferred on it by sub-section (1), the Commission may order filing of complaint under this Act before a Court of competent jurisdiction against persons who entered into the agreement referred to in sub-section (1).
(3) Notwithstanding the publication of the name of a Returned Candidate, 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, to the decision of an Election Tribunal on an election petition, if any.
(4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented, and shall regulate its own procedure.
(5) Any person aggrieved by a declaration of the Commission under this Section may, within thirty days of the declaration, prefer an appeal to the Supreme Court."
The section (supra) makes it abundantly clear that the Election Commission has the power to declare a poll void. In such a case, the Election Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and any person aggrieved by a declaration of the Commission may within thirty days of the declaration, prefer an appeal to the Supreme Court. In the instant case, there is dissenting judgment of the Election Commission according to which the Chief Election Commission has accepted the application by declaring the election of LA-XXXV as void, whereas, the Members of the Election Commission dismissed the application. In such like situation, the majority opinion shall prevail. As according to the majority opinion, the application has been dismissed, hence, there is no declaration of the Election Commission declaring the poll void. In this state of affairs, we have reached to the conclusion that this appeal under Section 9 of the Azad Jammu and Kashmir Elections Act, 2020 is not competent.
5. So far as the request of learned counsel for the appellant for converting this appeal into writ petition and sending it to the High Court, is concerned, it would not be out of place to mention here that the appellant has already availed the alternate remedy by filing election petition, therefore, in presence of alternate remedy the writ petition is also not competent, hence, the request of the learned counsel for the appellant cannot be allowed. In this regard, the case law cited by the learned counsel for the appellants in this regard, being distinguishable, is not applicable to the case in hand.
For the reasons, stated hereinabove, this appeal is dismissed being incompetently filed.