' WA LI MUHAMMAD KHAN, J. --T h rough this Constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, Mir Dad Khan petitioner has called in question the order of Election Tribunal, N.-W.F.P. Peshawar (respondent No,2) dated 31-10-1988 whereby he accepted the Election Petition of Afsar Khan, respondent No, 1 and declared the election of Ward No,2/1 of Union Council Mughalki as a whole void and ordered fresh Election.
2. The background of the controversy is that Election of Union Council Mughalki was held on 30-11- 1987 in which the petitioner and respondent No,1 contested for membership of Ward No,2/1. It is alleged that the polling started in the morning of the day of poll but on account of scuffle between the supporters of the contesting candidates, allegedly over the exercise of vote by the ladies voters resulting in injuries to one of the participants, about which a case was duly registered in the Police Station, the polling was stopped by the Presiding Officer at 2.30 hours, but the same was however, resumed at 3.30 hours and continued upto 6 P.M., whereafter counting of ballots was carried out and the petitioner having obtained 182 votes as against 142 secured by Afsar Khan respondent No,1 as per the result-sheet, copy Ex.PW1/2, was declared successful by the Presiding Officer. The respondent No,1 filed Election Petition before the Election Tribunal praying for declaring the election of the petitioner as illegal and void. The learned Election Tribunal after obtaining the written statement from the petitioner and recording such of the evidence as the parties wished to adduce before him, declared the election of the petitioner as void and ordered fresh election, vide his order impugned herein.
3. We have heard learned counsel for the parties and have perused the record of the case with their assistance.
4. The grounds which prevailed with the learned Election Tribunal in declaring the election of the petitioner as void are; (i) stoppage of polling between 2.30 and 3.30 hours by the Presiding. Officer;
(ii) non-participation of large number of 'female voters in the election to the ward in question and
(iii) certain acts and omissions illegally committed on the polling day which were in the knowledge of the Presiding Officer.
5. For the proper appreciation of the first ground mentioned above it is worthwhile to reproduce the provisions of Rule 26 of the N.-W.F.P. Local Councils Election Rules, 1979 hereunder:- "26. Adjourned poll.-
(1) If at any time the poll at the polling station is interrupted or obstructed for reasons beyond the control of the Presiding Officer, he shall stop the poll and inform the Returning Officer that he has done so.
(2) Where a poll has been stopped under sub-rule (1) the Returning Officer shall--
(a) immediately report the circumstances to the Authority;
(b) appoint, as soon as may be, with the approval of the Authority, a day for a fresh poll; and
(c) fix a place at which and the hours during which such fresh poll shall be taken.
(3) All voters shall be allowed to vote at the fresh poll taken under sub-rule (2) and no vote east at the poll stopped under sub-rule (1) shall be counted."
6. Obviously the above provision of law is meant to overcome the exigencies in which the Presiding Officers are not in a position to control the situation and have to stop the polling indefinitely. Minor supensions of poll do occur in which the Presiding Officers are not supposed to proceed according to the provisions of Rule 26 ibid. In the instant case, the Presiding Officer had temporarily suspended the poll and he restarted the same when normalcy was restored. Generally by 2.30 the rush of voters at the polling station is over. Before declaring the poll as stopped permanently the Presiding Officer had to be satisfied that there was not only obstruction or interruption in the poll but the same was for reasons beyond his control. The Presiding Officer did not act under the provision of Rule 26 ibid because the situation was well within his control. The scuffle had taken place outside the polling station between two rival groups already daggers drawn with each other prior to the election day and their coming to grips on the day of poll was prima facie, not connected in any way with the process of the poll, inasmuch as, they were, neither the candidates nor their polling agents. The Presiding Officer has appeared as witness and there is nothing in his statement to show that the scuffle and the occurrence had taken place as a result of preventing the ladies from exercising their right of franchise. The action of the Presiding Officer in stopping the poll at 2.30 hours appears to be as a matter of abundant precaution and not on account of any physical interruption or obstruction in the polling. The Presiding Officer was therefore, within his right to resume the poll particularly when none of the contestants objected to- it, but on the contrary A they actively participated in it thereafter. We are, therefore, of the considered opinion that the resumption of poll by the Presiding Officer at 3.30 'hours was not illegal and the mere fact that the Presiding Officer had suspended the poll for a short while did not attract the provision of Rule 26 ibid.
7. The contesting candidates have not been prejudiced in the resumption of the poll at 3.30 hours because majority of the voters must have polled their votes prior thereto and it was in their interest that the polling should have continued unabated. None of the interested persons made any application either to the Presiding Officer or to the Returning Officer to the effect that the restart of the poll was illegal or in any way deterimental to their interest. According to the Presiding Officer the polling continued upto 6 P.M. At which hour the counting was started by him. We are convinced that the re-start of the poll at 3.30 P.M. Was within the discretion of the Presiding B Officer and he did so with the implied and tacit consent of the contestant as is clear from their subsequent conduct by taking part in the process of polling which admittedly went on smoothly. We, therefore, hold that the provision of Rule 26 of N.W.F.P. Local Councils Election Rules, 1979 had not been violated and the contrary conclusions arrived at by the learned Election Tribunal (respondent No,2) are without lawful authority and of no legal effect.
8. The ground of non-participation of large number of female voters in the election is also not entertainable. None of the female voters have challenged the election of the petitioner as member of their Council nor any one of them appeared as a witness to corroborate the versions of the respondent No,1. On the other hand it is positively stated by the Presiding Officer that due arrangements had been made by him for the exercise of votes by the female voters but none of them visited the polling booth to demand the ballot paper for the exercise of their franchise. It was the sweet will of the female voters to participate in the polling or not and the polling staff could not invite them from out side even if some of them were present there. In this connection the dictum of their Lordships of the Supreme Court in case, Darvesh Khan v. Muhammad Sher Khan and others, reported as (1986 S.C.M.R.352), is of great help and is reproduced hereunder:- "It may at the very outset be stated that, it was common ground between the parties that all the contesting candidates including respondent No,1 had voluntarily entered into an agreement that no female votes will be cast at the election. It was not the case of respondent No,1 that any female voter intended to exercise her right of vote and was denied the same by the authorities responsible for the conduct of the election., The High Court in its judgment has observed that Mr. Aslam Zaib Khan who was the Presiding Officer of the Polling Station, Sher Ghund, had categorically stated that female staff had been appointed, who remained present for a long time but during the entire polling hours no female voters turned up to cast the votes. Indeed according to the Presiding Officer the contesting candidates informed him that they had agreed not to bring any female voter. In these circumstances it can be legitimately inferred that the functionaries entrusted with the conduct of the election were in no way responsible for non-exercise of right of vote by the female voters. It also appears from these established facts on record that respondent No,1 contributed deliberately and actively to the result of . Which he is now making grievance. In fact according to the N.-W.F.P. Local Council Election Rules, 1979, ballot-boxes were to be provided by the contesting candidates themselves and learned counsel for respondent No,1 candidly conceded that his client had not furnished ballot-boxes for the female booths at the polling stations."
' There being no convincing evidence that the female voters were deprived of their right of franchise by the election staff or by the petitioner, the finding of the learned Election Tribunal (respondent No,2) in this respect is based on misreading and non-reading of evidence and misinterpretation of laws and is liable to be set at naught.
9. As regards the allegation of certain basic procedural acts and omissions committed in the election, mentioned in the impugned judgment, suffice it to say that the learned Election Tribunal has not properly interpreted the relevant provisions of law. In Rule 32 of 'the Rules ibid quoted by the learned Election Tribunal in his judgment, it is nowhere mentioned that the signature or thumb impression of the voters shall be obtained on the counterfoil of the .Ballot. The other requirements of the said provisions have been duly complied with and there is nothing in the statement of the Presiding Officer to support the finding of the learned Election Tribunal that there was non- compliance with any of the said provisions of law or any other material irregularity in the conduct of the election. The findings of the learned Election Tribunal in this respect are conjectural.
10. Before parting with this judgment we must point out that the learned Election Tribunal has not appreciated the provisions of section 39-F of the N.W.F.P. Local Government Ordinance, 1979 which is resproduced below for ready reference.
"39.F. Ground for declaring election of returned candidate void.-
(1) The Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied 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 returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent.
(2). The election of a returned candidate shall not be declared void on the 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 precautions 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."
11. According to the said provision the Election Tribunal is competent to declare the election of a returned candidate as void on certain grounds. However, in spite of the existence or proof of such ground he has to be further satisfied that the illegalities, irregularities, corrupt or illegal practices had been committed by, or with the consent or connivance of the returned candidate of his polling or election agent. In the case in hand it is not proved from the record that the petitioner was in any way privy to the temporary stoppage of the poll or that the female voters were prevented from casting their votes with his or his agent's connivance. Moreover, it was also not established that the irregularities mentioned in the judgment of the learned Election Tribunal (respondent No,2) had materially affected the result of the election.
12. The upshot of the above discussion is that we accept the instant writ petition, set aside the order dated 31-10-1988 of the learned Election Tribunal (respondent No,2) and hold that the petitioner Mir Dad Khan is duly elected member of Union Council Mughalki Ward No,2/1 and restore the notification issued by the Government of N.-W.F.P. Through its Secretary Local Government Election and Rural Development Department, Peshawar (respondent No,3) whereby the petitioner was notified as such member. There shall be no order as to costs.