' ABDUL KARIM KHAN KUNDI, J.--Fatts as detailed in the writ petition and not controverted by respondents and further substantiated from the evidence on record of the Election Tribunal, copies placed on file, report that at the Polling Station of Ward No,13, Municipal Corporation Peshawar held in Superior Science College there was no proper arrangement for the exit of the voters and as such the voters gathered outside the booths and at about 2-00 P.M. The crowd of awaiting voters crashed the main gate and entered the Polling Station and the police present on spot could not manage to control the crowd. All the booths were filled with voters. The voters started to raise slogans and shouting. Ballot-papers and ballot-boxes could not be taken care of. The police and the Election Staff was abused by the voters. All the five candidates did co-operate to control the crowd but meanwhile a person stood on dias and declared that the Election was not acceptable.
People had also gathered around in a crowd to hear the aforesaid speaker. Due to the disorder all the five candidates joined together and wrote an application asking for re-election. There was not held any polling afterwards. Some or all of the candidates had gone back. The ballot-boxes were taken in custody by the Police and were later on produced before Returning Officer had delivered a copy of the application signed by all the five candidates for re-election to the Returning Officer. The Returning Officer had proceeded to break open the ballot-boxes due to the absence of the other candidates and declared Niaz Muhammad the returned candidate as successful.
2. His election was called in question by an Election Petition inter alia on ground that due to the failure on the part of the Presiding Officer and Returning Officer to comply with the provisions of the N.-W.F.P. Local Government Election Ordinance, 1979 and the Rules thereunder, the election was to be declared as a whole void as the result of the election has been materially affected by reason of the failure on the part of the Presiding Officer and the Returning Officer in not complying with the provisions of the law on the subject. The learned Election Tribunal had accepted the evidence of interruption and stoppage of poll for reasons beyond the control of the Presiding Officer, also referring to an application made by all the five candidates requesting the Presiding Officer for re- election but he has still dismissed the Election Petition since the Police Officer has made a statement that nobody had interfered with the ballot-boxes from 2-00 P.M. To 5-00 P.M. As long the ballot-boxes remained in the police custody and further that no corrupt or illegal practice has been committed by the returned candidate or his election agent or by any other person with his connivance.
3. Section 39 H of the N.-W.F.P. Local Government Ordinance, 1979 provides that the Election Tribunal shall declare the election as a whole void if it is satisfied that the result of the election has been materially affected by reason of failure of any person to comply with the provisions of this Ordinance or the Rules or the prevalence of extensive corrupt or illegal practice at the election. It is on record that Niaz Muhammad the returned candidate has not caused any hindrance in the polling programme and that the disruption was caused by the voters themselves. It is also on record that poll at the polling station was interrupted and stopped for reasons beyond the control of the Presiding Officer but he has not formally stopped the poll and informed the Returning Officer that he has done so and to ask for fresh poll at the Polling Station as envisaged under Rule 26 of the N.-W.F.P. Local Council Election Rules, 1979. There has, however, been a virtual stoppage of election due to the interruption and no ballot-paper was issued or vote cast after 2 P.M. It appears that due to the ignorance of law on the part of the Presiding Officer as well as the Returning Officer re-election at the Polling Station was not ordered in compliance of Rule 26. So the Election Tribunal erred in not taking notice of failure on their part to comply with the provisions of the law on the subject.
4. That being the position the Presiding Officer, the Returning Officer and the Election Tribunal all the forums have been found to have acted without lawful authority in connection with the performance of their functions for the Presiding officer failed to stop the poll and inform the Returning Officer for fresh poll; the Returning Officer failed in ordering fresh poll and instead proceeded to declare the result and the Election Tribunal failed in not taking notice of the non- compliance of the mandatory provisions of Rule 26 on the part of Presiding Officer and Returning Officer in ordering re-election and consequently their acts and orders are hereby declared without lawful authority and to be of no legal effect. The Election of Niaz Muhammad returned candidate from Ward No,13 of Peshawar Municipal Corporation is, therefore, declared as a whole void and concerned authorities are accordingly directed to hold re-election in accordance with law. Parties are left to bear their own costs.