ABDUL QADEER CHAUDHRY, J.---Leave to appeal was granted in this matter as leave was granted in Civil Petition No,149 of 1989 involving the identical questions of law.
2. The facts, in brief, are that the appellant and respondent Mir Dad Khan contested the election of Union Council, Mughadki Tehsil Nowshera, District Peshawar, which was held on 30-11-1987. The respondent No,1 obtained 182 votes as against 142 secured by the appellant. The respondent No,1 was declared successful by the Presiding Officer. The appellant filed an election petition before the Election Tribunal praying for declaring the election of the respondent as illegal and void. The petition was contested by the respondent No,1. The Election Tribunal after recording the evidence of the parties declared the election of respondent No,1 as void and ordered fresh polls. The respondent No,1 challenged the order of the Election Tribunal in a constitution petition which was accepted and it was declared that the respondent was duly elected Member of the Union Council and the notification issued by the Government whereby the respondent No,1 was notified as a Member was restored.
3. We have heard the learned counsel for the parties. It has been contended by the learned counsel for the appellant that the Presiding Officer and other polling staff committed illegality therefore the finding of the Election Tribunal was not open to any legal objection. The learned counsel has contended that the polling was stopped by the Presiding Officer for one hour therefore, the election could not be held as under Rule 26, North-West Fontier Province Local Council Election Rules, 1979 the Presiding Officer was bound to inform the Returning Officer and the Returning Officer after informing the Authority was to appoint a day for a fresh poll. As this has not been done, there was clear violation of the rules. The learned counsel has referred to Imamuddin Sikdar v. Election Tribunal PLD 1967 Dacca 644 and Muhammad Rashid v. Muhammad Shafi PLD 1966 Lah.
947. He submitted that section 34 of the Electoral College Act is para materia with Rule 26. As the Presiding Officer has violated the provisions of Rule 26, therefore, the polling could not be resumed afresh and a day for polling should have been fixed by the Returning Officer in accordance with the above rule. This contention has no force. The Election Tribunal has recorded that "the election has to be discontinued because of disorder leading to scuffle and injury to one Gul Hassan within the premises of the Polling Station. Resultantly the polling was stopped from 2-30 p.m. To 3-30 p.m." It further observed that "this fact of interruption itself is not an irregularity but the subsequent resumption in polling does violate the mandatory provisions of Rule 26". There is no cavil with the finding of the High Court that the Presiding Officer was within his right to resume the poll particularly when none of the contestants objected to its but on the contrary they actively participated in it thereafter. It was further observed by the High Court that no prejudice had been caused because majority of the voters must have polled their votes prior thereto. There is no allegation that any of the voters failed to cast his/her vote as the poll had been suspended for one hour. The polling continued upto 6 p.m. Rule 26 would he applicable if any interruption or obstruction has been made for reasons beyond the control of the Presiding Officer. The Presiding Officer has not stated that it was beyond his control. As such, we see no force in the first contention of the learned counsel.
4. The next objection raised by the learned counsel for the appellant is that the female voters did not take part in the election. The Election Tribunal has observed that the fact of non-participation of female voters has been admitted by the Presiding Officer and the parties but it came to the conclusion that in case female polling had taken place it could have well materially affected the outcome of the election. The High Court has also considered this aspect of the case and for sound reasons set aside the finding of the Election Tribunal. It was observed that there was no convincing evidence that female voters were deprived of their right of franchise by the polling staff or by the respondent No,1. Reliance was placed on Darvesh Khan v. Muhammad Sher Khan 1986 SCMR 352.
No female voter had come forward to depose that she was willing to cast her vote but she was prevented by anybody. It was the choice of the voter to cast his/her vote. There is no finding that female voters were prevented from casting their votes. The contention that the elections were held in contravention of Rule 32 of the Election Rules has been rightly repelled by the High Court. The Election Tribunal erred in law in holding that the procedure laid down in Rule 32 had not been followed at all. There is no allegation that any of the provisions of Rule 32 had been violated by the Presiding Officer and it was not the case of the appellant either. The respondent No,1 has secured more votes than the appellant. In such circumstances, the finding of the learned High Court is not open to exception.
5. There is no force in this appeal. The same is dismissed leaving the parties to bear their own costs.