' AJMAL MIAN, ACTG. C. J.-The petitioner through this petition has prayed for the following relief:- "The petitioner thus beg to pray that the decision as contained in Notification dated 2-6-1985 (Annexure '0') of the holding of fresh elections at six Polling Stations be declared illegal and without lawful authority and the respondent No, 1 be requested to declare by public notice the contesting candidate i. e. The petitioner, who has received the highest number of votes, to be elected, as also to publish in the official Gazette the name of the returned candidate; the petitioner, from constituency PB-37 Turbat I, Baluchistan. Costs of the petition may also be awarded."
The brief facts leading to the filing of the above petition are that the petitioner and the respondent No, 3 contested bye-elections from Turbat. No, PB-37 held on 21st May, 1985 on account of vacation of the above seat by one Moulvi Abdul Haq, who was also elected from a constituency of National Assembly. It seems that the petitioner obtained a total number of 7,718 votes as compared to the respondent No, 3, who secured 3,392 votes as reflected in the Form XVI (Annexure 'A' to the petition).
2. It is the case of the petitioner that the respondent' No, 1 instead of declaring the petitioner as elected candidate in terms of section 42 of the Representation of the Peoples Act, 1976 (hereinafter referred to as the 'Act') issued the impugned notification at the behest of the respondent No, 3 under section 27-A read with sections 103 and 108 of the 'Act' ordering the repotting at six polling stations out of 31 mentioned therein. In may be advantageous to re-produce hereinbelow the above notification, which reads as follows:- "No, F. 12 (PB-37)/85-Els (II).-In pursuance of the provisions of section 27-A read with sections 103 and 108 of the Reperesentation of Peoples Act, 1976 (LXXXV of 1976) the Chief Election Commissioner has ordered that fresh poll shall be held on the 25th of June, 1985, at Polling Station No, 4, Nag. No, 5, Badai No, 6 Saigassi No, 8, Darbuli No, 9, Kotan and No, 15 Kallag Tagram of Constituency No, PB-37 Turbat-I as per assignment of voters indicated there against in the District Returning Officers Notification No, 3 Election/Bye/85 (PB-37), dated the 29th April, 1985. The poll shall be taken between the hours of eight o'clock in the morning and five o'clock in the afternoon without break. By Order of the Chief Election Commissioner.
(Sd.)
(M. Humayun Khan) Joint Secretary."
' The petitioner being aggrieved by the above notification has filed the present petition.
3.
3.The above petition had come-up for hearing for Katcha Peshi before us on 12th June, 1985 as it was filed on 11th June, 1985, when we had ordered the issuance of notice to the respondents for today, which is the first working day of D. B. After 12th June, 1985. We had ordered giving of the notices cover in hand. According to the learned counsel for the petitioner respondents Nos. 2 and 3 were served and so also the respondent No, 4 who was present on 12-6.1985 at the time of hearing of the case, but the respondent No, 1 i,e,; the Election Commission of Pakistan Islamabad was not served as according to the learned counsel for the petitioner the time available was not sufficient to serve the notice on the said respondent. It may be observed that the petitioner sought the service of notice on the respondent No, 1 through the respondent No, 4 by filing two applications on 13th June, 1985 and one on 15th June, 1985 which were placed in Chamber before one 1 of us. It was ordered that the same may be placed in Court. Be that as it may. We have heard Mr. Basharatullah, learned counsel for the petitioner and in support of the above petition, he has urged as follows : -
(i) That in terms of section 5 of the Election Commission Order, 1977 (President Order No, 4 of 1977)
(hereinafter referred to as the President Order No, IV of 1977) the Election Commission is to consist of the Commissioner i,e,; the Chief Election Commissioner and four members and as Mr. Justice Abdul Qadeer Chaudhry after his transfer from Baluchistan to Sind High Court is no longer a Member, the Commission is not properly constituted and, therefore, it could not have issued the impugned notification.
(ii) That under section 42 of the 'Act' the respondent No, 1 was obliged to notify the petitioner as elected candidate.
(iii) That the impugned notification could not have been issued under section 27-A of the 'Act'.
(iv) That since the impugned notification does not contain the reasons for ordering of re-polling, the same is in violation of the above provision.
(v) That the ,impugned notification could have been issued by the Commission and not by the Chief Election Commissioner.
4. Adverting to the first contention of the learned counsel for the petitioner, it may be observed that without going into the question, whether Mr. Justice Abdul Qadeer Chaudhry, in the absence of a fresh notification still remains a member of the Commission in terms of clause (b) of subsection
(2) of section 3 of the President Order IV of 1977, it will suffice to reproduce subsection (2) of section 8, which reads as follows :- "(2) No election conducted or other action taken or thing done, by the Election Commission shall be invalid or called in question only on the ground of the existence of a vacancy therein or of the absence of any member from any meeting thereof."
' The above-quoted subsection (2) of section 8 is a complete answer to the above submission, even if it is to be held that on account of the transfer of Mr. Justice Abdul Qadeer Chaudhry, a vacancy had fallen. In this regard, reference may also be made to subsection (3) of section 3 of the Act, which is also couched in the same language as above sub-, section (2) of section 8 of the President Order IV of 1977.
5. Reverting to the second submission of Mr. Basharatullah, learned counsel for the petitioner that under section 42 of the 'Act' the respondent No, 1 was obliged to notify the petitioner as elected candidate, it may be stated that he has referred to the above section which inter alia, provides that the Returning Officer shall immediately after the count submit to the Commission a copy of the consolidated statement in the prescribed form and that the Commission shall publish in the official Gazette the name of the returned candidate. It may be observed that the above section is subject to any action to be taken under section 27-A, If the impugned action taken under section 27-A is in consonance with law, the question of notifying the petitioner as returned candidate without having re-polling at the six polling stations, did not arise.
6. As regards the third submission of the learned 'counsel for the petitioner that under section 27-A of the 'Act' the impugned notification could not have been issued, it may be observed that it will be pertinent to reproduce the above section, which reads as follows "27-A. Fresh poll in the case of destruction etc. Of ballot-boxes. - (1) If any Election-
(a) any ballot-box used at a polling station is unlawfully taken out of the custody of the Presiding Officer or is accidentally or intentionally destroyed or lost or is damaged or tampered with, to such an extent that the result of the poll at that polling station cannot be ascertained, or
(b) any error or irregularity which is likely to vitiate the poll is committed at a polling station. The Returning Officer shall forthwith report the matter to the Commission.
(2) The Commission may, on its own motion, or on receipt of a report under subsection (1) and for reasons to be recorded, either (a) declare the poll at that polling station to be void, appoint a day, and fix the hours, for taking a fresh poll at that polling station and notify the day so appointed and the hours so fixed in such manner as it may deem fit, or
(b) if satisfied that the result of a fresh poll at that polling station will not, in any way affect the result of the election or that the error or irregularity is not material, issue such directions to the Returning Officer as it may deem proper for the further conduct and completion of the election.
(3) The provisions of this Act and the rules and orders made thereunder shall apply to every fresh pull taken under subsection (2)."
A perusal of the above-quoted section indicates that fresh poll can be ordered in case any ballot- box used at any polling station is unlawfully taken out of the custody of the Presiding Officer or is accidentally or intentionally destroyed or lost or is damaged or tampered with to such an extent that the result of the poll at that polling station cannot be ascertained or any error or irregularity which is likely to vitiate the poll is committed at a polling station. It is an admitted position that the impugned notification is not covered by clause (a) of section 27-A. The question is, whether it comes within the compass of clause (b). It was vehemently urged by Mr. Basharatullah, learned counsel for the petitioner that in order to attract the above clause, it is incumbent that any error or irregularity which is likely to vitiate the poll should be committed at a polling station and that the fact that at six polling stations in respect of which re-polling has been ordered, no vote was cast by any voter, is not covered by the above clause (b). The question, whether any error or irregularity which is likely to vitiate the poll was committed at the polling stations in question, is a disputed question of fact which requires investigation of fact. It is an admitted position as per averments in the petition that the respondent No, 3 had filed certain application before the respondent No, 1 alleging certain acts/omissions resulting into the non-casting of votes.
7. We are inclined to hold that in a constitutional petition, we cannot hold an inquiry to find out, whether factually there was any error or irregularity of the nature warranting the ordering of re- polling at six polling stations. It was within the competency of the respondent No, II and the Chief Election Commissioner.
8. This lead us to the second limb of Mr. Basharatullah's argument, namely, that the impugned notification should have contained reasons for ordering of re-polling at six polling stations. In this regard, he has referred to para. 2 of the above-quoted section 27-A of the 'Act' which provides that the Commission may on its own motion or on receipt of a report under subsection (1) and for reasons to be recorded, can take action mentioned in clauses (a) and (b) of above clause (2). It is true that the impugned notification does not contain any reason, but the above notification has been issued by the Joint Secretary. It is not an order passed by the respondent No, 1 or the Chief Election Commissioner but it is a notification issued in pursuance of the orders of the Chief Election Commissioner as indicated in the impugned notification. There is a presumption of regularity of the official act. We have no reason to believe that before issuance of the above notification, order in terms of clause (2) of section 27 of the 'Act' had not been passed.
9. Reverting to the last submission of Mr. Basharatullah that the impugned order could not have been passed by the Chief Election Commissioner but could have been passed by the respondent No, 1, it may be observed that he has referred to subsection (1) of section 8 of the President Order 4 of 1977, which provides that all the decisions of the Election Commission shall be expressed in terms of the opinion of the majority of its members, including the Chairman. Then he has referred to section 27-A of the 'Ace, which speaks of the Commission. It is true' that the Commission has to express the majority view in case of disagreement in terms of subsection (1) of section 8 of the President Order 4 of 1977 and it is also true that in the above section 27-A, reference has been made to the Commission, but section 4 of the 'Act' provides that the Commission may authorise its Chairman or any of its members or any of the officers of the Commission to exercise and perform all or any of its powers and functions under the 'Act'. We have no reason to infer that the Chief Election Commissioner was not authorised to take action under section 27-A of the 'Act'.
10. It was also contended by Mr. Basharatullah, learned counsel for the petitioner that the petitioner was not given any notice of the third respondent's application and, therefore, there was violation of principle of natural justice It may be observed that under subsection (2) o section 27-A of the 'Ace an order can be passed even suo motu. The above G subsection does not provide issuance of any notice to all the contesting candidates. Additionally, there is no material before us on the basis of which we can infer that the impugned notification was issued solely on the basis of the third respondent's application/representation.
11. Apart from the above legal aspect, we may observe that exercises of writ jurisdiction is a discretionary jurisdiction which may be declined in a fit case. In the instant case, it is an admitted position that at the six polling stations, in respect of which re-polling has been ordered, not a single voter had cast his vote. Prima facie, the action of the Chief Election Commissioner seems to be bona fide action with the object to enable to voters to exercise their right of franchise which they were unable to exercise for the reasons found sufficient by the Chief Election Commissioner to warrant re-polling. A persual of various sections of the `Act' indicates that the paramount duty caste upon the Election Commission is to ensure a fair, impartial and proper election and to create conditions in which maximum voters can exercise their right of franchise. We are, therefore, even otherwise not inclined to entertain the above petition on that account.
' Furthermore, the petitioner will have a right to file an election petition, in case, he looses the election. However, it was urged by Mr. Basharatullah that the alleged illegal act on the part of the respondent No, 1 or the Chief Election Commissioner cannot be the subject-matter of an Election Petition. In our view, it is not necessary to go into the above question in detail as we are not inclined to exercise writ jurisdiction.
12. For the aforesaid reasons, the petition is dismissed in limine.