1. HAZIQUL KHAIRI, J.----By this petition the petitioner Agha Ghulam All has, impugned the order dated 27-12-1990 of respondent No. 1, namely, Election Commission of Pakistan declaring the election of PS-14, Jacobabad-V as void with direction that election be held of provincial assembly in the said constituency in the manner provided for in section 108 of the Representation of the People Act, 1976. The petitioner who is a Zamindar of Garhi Khairo, District Jacobabad is stated to be a sitting member of the Provincial Assembly of Sindh having been elected from PS-14 Jacobabad-V. Other contesting candidates from the said constituency are respondents Nos. 3 to 10 whereas respondent No. 2 is the Returning Officer of the said constituency.
2. 2.The poll in the said constituency was conducted on 27-10-1990. A complaint was made by the petitioner's main rival, namely, Ghulam Muhammad Shahliani, respondent No. 3, under section 103- AA of the Representation of the People Act, 1976, before the Election Commission of Pakistan respondent No. 1 alleging malpractices and unlawful interference by the authorities. This complaint was disposed of by a consent order dated 19-11-1990 whereby rolling was ordered to be held at Rasoolabad, Amirabad, Piyrao Umrani, Jaffarabad and Allahabad polling stations.
3. 3.On 27-11-1990 the respondent No.3 sent the following telegram to the respondent No. 1 and other authorities:-- "THERE IS EVERY POSSIBILITY OF BLOODSHED AT POLLING STATIONS JAFFARABAD/PIARO UMRANI AND AMEERABAD, RASOOLABAD AND ALLAHABAD OF PS-14 JACOBABAD-V TO BE HELD ON 29-9- 1990 DECLARED AS SENSITIVE POLLS. KINDLY ARRANGE FOR FULL MILITARY/RANGERS AND POLICE AND DUTY MAGISTRATE IN ORDER TO HOLD POLLINGS IN A PEACEFUL MANNER WITH FULL SECURITY TO VOTERS/AGENTS AND SUPPORTERS OF THE CANDIDATE. THIS APPREHENSION IS DUE TO HARSH ATTITUDE OF MY RIVAL CANDIDATE AS AGHA GHULAM ALI BULEDI AS HE IS VISITING DIFFERENT POLLS ALONG WITH VERY DANGEROUS PERSONS WITH FULL ARMS AND AMMUNITION."
4. 4.On the date of repolling, a complaint in writing being P/2 was sent by respondent No.3 to respondents Nos.1 and 2 alleging grave illegalities and corrupt practices by the administration with the active connivance and concurrence in Jaffarabad, Piyaro Umrani and Allahabad Polling Stations. Ballot boxes were alleged to be filled with ballot papers and the polling agents of respondent No.3 were illegally detained during the course of night. By another telegram respondent No.3 alleged rigging by the petitioner with the active help and assistance of Deputy Commissioner and S.P. Jacobabad and his workers were threatened not to report the matter to the Police Station, Jacobabad. One day before the repolling, the police blocked the main Jacobabad Garhi Khairo Road leading to five polling stations and then workers of respondent No.3 were forcibly stopped from going there. The petitioner's supporters were seen stamping the ballot papers at polling stations of Jaffarabad and Piyaro Umrani. Two other complaints, one at 4-15 p.m. The same day and the other on 29-11-1990 were sent to the respondents Nos.1 and 2 containing among others, serious allegations against the authorities conducting the election at Amirabad, Piyaro Umrani and Jafarabad polling stations in the said PS-14 Jacobabad-V. Another protest being P/9 was lodged with the Returning Officer PS-14 against the consolidation of results of election of repolling. Similar complaint and protest was made by respondent No.4 another candidate containing similiar allegations against the petitioner and the authorities. On the basis of complaints, D.S.P. Aslam Soomro of Garhi Khairo Sub-Division and Mukhtiarkar Noor Muhammad Soomro of Taluka Garhi Khairo were said to have been removed by the orders of the Election Commissioner. On 3-12-1990, Mr. Abdul Hafeez Pirzada, Advocate for respondent No.3 sent a letter to the Chief Election Commissioner and other authorities reiterating the allegations made by the respondent No.3 against the petitioner and the authorities concerned and further stating that at three polling stations almost 100 per cent. Of the registered votes had been cast in favour of the petitioner, Agha Ghulam Ali his tally of votes being in excess of 6,000. In the remaining two polling stations, less than 10 per cent. Votes were allowed to be cast.
5. 5.In the repoll of the said five polling stations, the petitioner secured 6,330 votes while respondent No.3 could secure only 43 votes. After the consolidation of the entire result, the petitioner secured 17507 valid votes while the respondent No.3 secured only 14,509 votes. On the basis of the said result, the petitioner was declared elected by respondent No. 1 vide Notification dated 4-12-1990 being Annexure 'A' to the petition.
6. 6.It is pertinent to note that on the date of Notification viz. 4-12-1990, the respondent No.3 filed a "Petition" before respondent No.1 under Article 218(3) of the Constitu. Tion of the Islamic Republic of Pakistan read with section 103 of the Representation of the People Act, 1976 in which the impugned order dated 27-12-1990 was passed by the respondent No.1. This petition contained more or less the same grounds as raised by respondent No.3 in his letters, telegrams and notices etc. It was accordingly prayed by the respondent No.3 that the Election Commission of Pakistan, respondent No.1 will be pleased to issue directions to the authorities concerned for preparing the final consolidated results so as to inclucde the results of Polling Stations Nos. 26 and 46 as per statement of count issued by the Presiding Officers and may be further pleased to direct the issuance of necessary notification declaring the applicant as elected from PS-14 Jacobabad-V to the Provincial Assembly of Sindh or in the alternate this Hon'ble Commission may be pleased to hold an inquiry into the massive rigging as per facts stated above which have a direct and material bearing on the results and thereafter be pleased to declare as void the poll in the said constituency and call upon the constitutency to elect a member in the manner provided in section 108.
7. 7.Learned counsel for the petitioner Mr. Sharaf Faridi assailed the order dated 27-12-1990 on the following grounds:
(1) The only remedy available to an aggrieved candidate was to challenge the election by an Election Petition under Article 225 of the Constitution of the Islamic Republic of Pakistan read with section 52(1) of the Representation of the People Act, 1976. Even otherwise section 103-AA of the Representation of the People Act, 1976 and Article 13 of President's (Post-Proclamation) Order No.5/77 is an invalid piece of legislation being repugnant to Article 225 of the Constitution of Islamic Republic of Pakistan.
(2) Respondent No.1 had become functions officio on 4-12-1990 when the petitioner was declared elected vide notification under subsection (4) of section 42 of the Representation of the People Act, 1976 and no order could have been passed by them after the date of notification.
(3) Respondent No.3, had failed to comply with the provisions of sections 52 and 54 of the Act of 1976 and therefore the only course open to respondent No.1 was to dismiss the complaint of respondent No.3. In not doing so, respondent No.1 failed to exercise jurisdiction vested in it under section 56 of the Representation of the People Act, 1976.
(4) Respondent No. 1 vide their order dated 19-11-1990 had accepted the result of all the polling stations except the said five polling stations and, therefore, in repelling therein, it could not have passed a subsequent order dated 27-12-1990 declaring the results of the entire constituency PS 14, Jacobabad-V as void.
(5) There was neither any positive evidence nor other material on record on the basis of which respondent No.1 could have declared the entire elections in the constituency as void.
(6) Even if gross illegality was committed at three polling stations out of 53 polling stations the proper course for respondent No.1 was to order fresh elections in those polling stations only.
8. 8.In The first instance, it was maintained by Mr. Sharaf Faridi that the provisions contained in section 103-AA of the Representation of the People Act, 1976 providing for delcaration of election disputes by the Election Commission, as void by itself is repugnant to and violative of Article 225 of the Constitution and section 52 of the Representation of the People Act, 1976 (hereinafter called the 'Act'). Elucidating his contention, it was asserted by him that there is a clear bar to challenging the election to a House or a Provincial Assembly except by way of election petition within the meaning of section 2 (xxv) of the Act read with section 52 of the Act to be presented to a Tribunal appointed under section 57(1) of the Act and preferred under sections 52 and 55 thereof. Presently there was neither any election petition nor any appointed tribunal under section 57 of the Act, nor the election petition was presented in a manner prescribed under sections 52, 53 and 55 thereof. It will be useful to reproduce here Article 225 of the Constitution and relevant sections of the Act as follows:- -- "Article 225.--No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by act of Majlis-eShoora (Parliament)."
9. Section 2(xi): "2. (xi) "election petition" means 'an election petition made under section 52.?
10. "52. Election petition.--(1) No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner).
(2) An election petition shall be presented to the Commissioner within forty-five days of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the cost of the petition, a sum of one thousand rupees."
11. "53.Presentation of petition: -(1) An election petition shall be presentated by a petitioner and shall be deemed to have been presented--
(a) when it is delivered in person to the Secretary to the. Commission or to such other officer as may be appointed by the Commission in that behalf,-
(i) by the petitioner, or
(ii) by a person authorised in writing in this behalf by the petitioner; or
(b) when delivered by registered post to the Secretary to the Commission or to such other officer as aforesaid.
(2) An election petition, if sent by registered post, shall be deemed to have been presented in time if it is posted within the period specified in subsection (2) of section 52."
12. "55.Contents of petition,-(1) Every election petition shall contain--
(a) a precise statement of the material facts on which the petitioner relies;
(b) full particulars of any corrupt illegal practice or other illegal act alleged to have been committed including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and
(c) He relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely:-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected, or
(c) that the election as a whole is void.
(3) Every Election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (Act V of 1908), for the verification of pleadings."
13. "57. Appointment of Tribunal.--(1) For the trial of election petitions under this Act, the Commissioner shall appoint as many Election Tribunals as may be necessary
(2) An Election Tribunal shall consist of a person who has been, or is or at the time of his retirement as a District and Sessions Judge, was qualified to be, a Judge of a High Court."
14. It will also be worth while to refer to section 103-AA and section 108 of the Representation of the People Act, 1976 which are under attack by the petitioner and also section 27 thereof which read as follows:-- "27. Stopping of the poll.--(1) The Presiding Officer of a polling station shall stop the poll and inform the Returning Officer that he has done so if--
(a) the poll at the polling station is, at any time, so interrupted or obstructed for, reasons beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 26; or (by any ballot box used at the polling station is unlawfully taken out of the custody of the Presiding Officer, or is accidentally or intentionally destroyed, or is lost or is damaged or tampered with to such an extent that the result of the poll at the polling station cannot be ascertained.
(2) Where poll has been stopped under subsection (1) the Returning Officer shall immediately report the circumstances to the Commission and the Commission shall direct a fresh poll at that polling station, unless it is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station, taken with the result of the polling at other polling stations, in the same constituency.
(3) ------------------------
(4) ------ "103-AA. Power of 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 summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithsanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may exercise the powers conferred on it by subsection (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, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by subsection (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chaper VII, regulate its own procedure."
15. "108. Bye-elections, etc.---(1) When the seat of a member becomes vacant, the Commissioner shall, by notification in the official Gazette call upon the constituency before such date as may be specified in the notification, and thereupon the provisions of this Act and the rules shall apply, as far as may be to the election to fill such seat: Provided that, notwithstanding anything contained in subsection (1) of section 11, the days for the several stages of an election shall be such as may be specified in the aforesaid notification.
(2) For the purpose of holding an election to fill a casual vacancy in an Assembly, and, during the period when a Commission does not stand constituted for the purpose of section 107, reference in this Act to the Commission shall be construed as reference to the Commissioner."
16. 9.In support of his contention, learned counsel placed reliance on Election Commission of Pakistan v. Javed Hashmi, PLD 1989 SC 396, in which the scope of Article 199 vis-a-vis Article 225 of the Constitution was examined by our Supreme Court and it was held:-- "In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks on matters, connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by mean of an election petition. It is also of utmost consideration that in the case of two attacks on matter connected with the election proceedings there is likelihood of there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. Again, the words "except by an election petition" in Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mode in which it can be called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunal appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only one mode of challenge."
17. What emanates from Javed Hashmi's case is that the only mode of challenging an election is by an election petition contemplated under Article 225 of the Constitution and even a Constitutional petition under Article 199 challenging any stage of the election is barred. Earlier in Col. (Rtd.) S. Mukhtar Hussain Shah v Wasim Sajjad and 30 others PLD 1986 SC 178-187 in which while examining the vires of section 38 of the Senate (Election) Act, 1975 vis-a-vis section 57 of the Representation of the People Act, 1976 it was held by our Supreme Court:- "The upshot of these statutory provisions is that the challenge to an Election is possible only by an Election Petition and further that such Election Petition has to be disposed of by an Election Tribunal appointed by the Commission (section 57 of Act LXXXV of 1976 and section 38 of the Act). On no hypothesis can the Commissioner pre-empt the powers and functions of the Election Tribunal nor do the power and jurisdiction of the Election Tribunal get affected in dealing with an election dispute by what the Commissioner had done in the matter of counting or in deciding an appeal under section 32 of the Act."
18. ' It will be convenient and efficacious here to further examine the meaning and scope of the word "challenge" in the context of section 103-AA. There appears to be a number of distinguishing features between grievances lodged under section 103-AA of the Act on one hand and provided for under Article 225 of the Constitution read with section 52 of the Act on the other. The proceedings under section 103-AA can be invoked suo motu by the Election Commission or by a candidate at any time specified therein on account of illegalities or violations of the Act or rules. If these are proved by facts on the face of record in a summary manner, the Election Commissioner may declare poll in the constituency as void and further order repolling there. An Election Petition under section 52 of the Act read with Article 225 of the Constitution is only maintainable after completion of election process as was held by the Supreme Court of Pakistan in Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396. The decision of the Election Tribunal is appealable under section 67 of the Act, but the decision of the Election Commission is not, by virtue of the proviso, namely the "Explanation" to said section. However, if the Commission fails to dispose of a case before the expiration of sixty days after notification in the official Gazette, the election of the returned candidate under section 103-AA shall be deemed to have become final, subject to a decision of a Tribunal.
19. What follows more importantly in that subsection (2) of section 103-AA itself refers to two parallel forums for trial of the same grievance, one envisaging summary trial by the Election Commission and the other, a regular trial in manner provided under sections 52, 53, 54, 55 and 62 by an Election Tr:bunal appointed under section 57 of the Act. In other words it is open to an aggrieved candidate to make a complaint or file an application under section 103-AA of the Act and at the same time present an election petition under section 53 of the Act and pursue his remedies before both of them. Again the Election Commission is seized of the matter before the expiration of sixty days after notification in the official Gazette but an Election Tribunal shall hear an election petition only if presented to the Commission within forty-five days of the publication thereof and is bound to decide it. There may also arise a situation where the Election Commission acting under section 103-AA may give a different decision from what is adjudicated upon by a Tribunal appointed under section 57 of the Act, the effect of which would be the setting aside the summary findings of the Commission under section 103-AA. No constitutional or statutory duty is cast upon the Election Commission to give its verdict in respect of every grievance referred to it under section 103-AA of the Act. If, however, for some reason or the other the Commission does not finally dispose it of within the prescribed period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribun41. What further emerges from the discussion is that an election petition emanates from a statutory right of a candidate to challenge the election results requiring judicial pronouncement which is not so in case of proceedings under section 103- AA of the Act. While agreeing with Mr. Sharaf Faridi that an election can only be challenged by an election petition under Article 225 of the Constitution read with section 52 of the Act, we are clear in our minds that by whatever name a grievance or cause under section 103-AA of the Act may be called, it is not an election petition within the meaning of Article 225 of the Constitution or section 2(xi) read with section 52 of the Representation of the People Act, 1976 and the proceedings before the Election Commissioner are not in the nature of a 'challenge' ensuring judgment on the merits and further giving right to appeal. Thus the objection of the petitioner that section 103-AA of the Act is repugnant to Article 225 of the Constitution is not valid. Further sections 52, 53 and 54 of the Act are inapplicable to proceedings under section 103-AA which are made applicable to election petitions only.
20. Next, it was contended by Mr. Sharaf Faidi, that the Election Commission, respondent No.1 had become functus officio on 4-12-1990 when the petitioner Was declared elected vide notification under subsection (4) of section 42 of the Representation of the People Act, 1976 thus the impugned order dated 27-12-1990 is patently illegal and without jurisdiction. In support reliance was placed on Muhammad Nazeer Hakeem v. Said Muhammad reported in PLD 1962 (W.P.) Lahore 421, in which it was held:-- "If election is a single process from the date of publication of the electoral roll to the date on which the result of the election is declared, like a chain with a number of links, then a date "preceding the election" will be a date preceding the first link in the chain and not a date preceding the last link, for a date preceding the last link would be a date preceding the declaration of the result, and all other links in the chain of election would "precede" such date. In that case we would be defining the term "election" as 'the publication of the result of the election'."
21. Next case was Muhammad Afzal v. Mairajuddin, reported in PLD 1967 Lahore 689 where it was held: "It is well settled that election is a continuous process consisting of a series of acts required to be done in different stages in accordance with the schedule contained in the notification to be published in the official Gazette fixing and filing of nomination papers. Scrutiny of nomination papers, withdrawal and retirement of candidates, actual fact and counting of votes and declaration of result etc."
22. In Y.B. Chowan v. K.T. Mangal Mutry, AIR 1958 Born. 395, a Division Bench was also of the view that an election is one continuous process but the final stage is of the poll. But in Election Commission of Pakistan v. Javed Hashmi, reported in PLD 1989 SC 396, while considering the meaning of the word "election " in Article 225 of the Constitution, the Supreme Court of Pakistan held that "the Representation of the People Act, 1976 is self-contained enactment and various steps taken in the process of the completion of their action as provided by the enactment are comprehended within the meaning of "election" and if it be the case whether an action falls within its ambit or nor it can be tested on this touchstone".
23. Testing on the touchstone of section 103-AA, it is evident that the Election Commission shall have jurisdiction over a grievance made or action taken thereunder before the expiration of sixty days after notification in the official Gazette, consequently, the legal objection as to the Election Tribunal becoming functus officio after publication of Notification, does not hold good. Besides, neither section 103-AA nor any similar provision was in the field when the said cases were decided by the learned Judges of the High Courts.
24. Before averting to other objections raised by learned counsel for the petitioner, it may be recalled that with the consent of petitioner and respondent No.3 repolling was ordered in the said Constituency, P.S. 14, Jacobabad. There is no dispute that the respondent No. 3 and other candidates again made complaints of malpractices and illegalities by the petitioner and his workers. It was specifically alleged inter alia that the workers of the petitioner prevented the workers of respondent No. 3 from reaching polling stations of Jaffarabad, Amirabad and Allahabad. Admittedly, the Deputy Commissioner of the area was transferred as also the Superintendent of Police and the police had blocked different roads leading to Jaffarabad and Piyaro Umrani Polling Stations where votes were being stamped and stuffed by the workers of the petitioner.
25. Mr. Abdul Hafiz Pirzada brought to our notice the two tabulations in respect of polls held on 17-11- 1990 and of repoll held on 29-11-1990 for purpose of comparative study:
1. Poll held on 17-11-1990 Polling Station Respondent No.3 Petitioner Total
(a) Rasoolabad (26)2180 44 2235
(b) Allahabad (46)2015 6 2188
(c) Jaffarabad (41)15 2498 2514
(d) Amirabad (28)259 1713 2000
(e) Piyaro Umrani (32)157 1709 1876 Total: 4626 5970 10813
2. Re-Poll held on 29-11-1990 Polling Station Respondent No.3 Petitioner Total
(a) Rasoolabad (26)323 03 331
(b) Allahabad (46)136 09 157
(c) Jaffarabad (41)10 2673 2694
(d) Amirabad (28)32 1905 1937
(e) Piyaio Umrani (32)42 1740 1792 Total 543 6330 961 According to him as a result of malpractices and grave illegalities, the percentage of the votes in Rasoolabad and Allahabad polling stations, under the influence of respondent No.3 shrank from a very high turn out into the lowest ebb, whereas, on the other hand, the percentage of votes in three polling stations within the area of influence of the petitioner was so increased that in one of the polling stations namely, Jaffarabad it reached 98% of the total registered votes. The turnout in other polling stations, namely, Amirabad and Piyaro Umrani touched 93% and 91% respectively. The variation on the face of it was abnormal and sufficient to support the contention of the respondent No.3 that his voters were prevented to cast their votes and his agents were not allowed to enter the three polling stations at least till 10-00 a.m., whereafter with the help of Police they managed to enter the polling stations. He urged that it was rather a virtual impossibility that the turnout of the votes can be as high as indicated in the above tabulation, particularly in view of the fact that almost half of the voters in the area are lady voters living in rural areas, who usually do not come to cast their votes particularly in a tense situation as was existing there. In this regard, reference was made by the learned counsel for respondent No.3 to the observations and findings of Election Commission of Pakistan, respondent No.1 after taking due note of the illegalities and malpractices in the following words: "In the instant case we passed order of repoll only in five polling stations, with the consent of the parties. We were even at that time mindful of the fact that there were some grave illegalities as for instance missing of two ballot boxes and putting off light in order to facilitate the disappearance of the election record. However, it may not be out of place to mention that even at that time the high percentage of turn out in some polling stations of the petitioner and in others of the respondent had been alleged."
26. And further: None of the Presiding Officers stated that the Returning Officer ever visited the polling stations and that two of the stated polling agents of the petitioner left the polling stations voluntarily at about meal time and thereafter never came back. This gives an impression that conduct of poll was not normal, smooth or fair, otherwise there was no reason to believe that agents of only one of the parties would voluntarily leave polling stations in such a hotly contested election. In this context the assertion that the personnel of Pronvincial and District Administration specifically named took over the three polling stations under the direction of the Deputy Commissioner who was posted to the District on a day before the poll. Due to the aforesaid factors we are inclined to hold that grave illegalities were committed and that election was not conducted fairly, honestly and justly in this constituency.
27. The effect of the grave illegalities committed at the three polling stations is that poll in the constituency ought to be declared void as in the remaining polling stations of the constituency the votes obtained by the petitioner and the respondent respectively are 13966 and 11249. The total votes assigned at the three polling stations are 6639 while the total registered vcJes assigned to the aforesaid five polling stations are 11,562."
28. Here the nub of the dispute is that there was a complaint only in respect of three polling stations out of 53 polling stations and there was no justification on the part of respondent No.1 to declare election in the whole constituency as void and ordering re-polling there. It was vigorously contended by Mr.Sharaf Faridi duly supported by Mr.Nizam Ahmed, Deputy-Attorney General for Pakistan, that respondent No.3 had prayed for re-poll of the five polling stations and as alternate relief sought for fresh election in the whole constituency.
29. Mr. Abdul Hafeez Pirzada, learned counsel for respondent No. 3 stated that the respondent No.3 while excercising its powers under section 103-AA could only declare the poll in the whole constituency as void and order for redpoll there.
30. The earlier order dated 17-11-1990 for repoll in five polling stations was a consent order and not an order passed by the learned respondent No.1 in exercise of its powers under section 103-AA of the Act.
31. Learned counsel for the parties referred to Alam Zaib v. The State PLD 1989 Pesh. 231; Abdul Hameed Khan Achakzai v. Election Commission 1989 CLC 1833; Behram Khan v. Abdul Hameed Khan Achakzai PLD 1990 SC 352 and one unreported judgment of the Supreme Court of Pakistan in Haji Muhammad Ayub Khan v. Alam Zeb Khan in C.P. No. 96-R/89 referred against the above judgment of Peshawar High Court.
32. In Alam Zaib v. The State PLD 1989 Pesh. 231, there was an allegation of massive rigging at one polling station namely, Polling Station Biari, out of total 66 polling stations and demand was made for fresh election only in that polling station. The Returning Officer enquired into the allegation and confirmed to the Election Commission of the massive rigging in the polling station. An interesting feature of the said one polling station was that out of 1,497 voters, 1.494 cast their votes in favour of one candidate and only three other voters favoured the remaining candidates with their votes. The perecentage of voting at this polling station was not considered on the face of it true and believable by the Returning Officer. The Election Commission purporting to act under section 103- AA of the Representation of the People Act, 1976 overlooked the limited demand of the petitioner and recommendation of the Returning Officer concerned for repolling in the said polling station and instead ordered fresh elections in the entire constituency. The judgment of the Election Commission was challenged in a writ petition before the High Court of Peshawar in the said reported case on the ground that where Tribunal can grant the full or maximum relief, it has also the power and competence to allow a smaller or lesser relief. This contention was accepted and the judgment of the Election Commission was modified to the extent that repolling was ordered in the said Polling Station Biari only. In an appeal before the Supreme Court in the said unreported judgment of Haji Muhammad Ayub Khan v. Alam Zeb Khan, it was held that the Election Commission does not have in law power to order re-polling in one polling station because it can only declare the poll void of the entire constituency and not of one polling station. Further section 108 of the Act contemplates the holding of a bye-election in the entire constituency. The relief awarded by the Peshawar High Court would constitute to regularise the earlier election with a view to avoid the fresh election.
33. In Abdul Hameed Khan Achakzai v. Election Commission 1989 CLC 1833, a group of persons forcibly snatched away five ballot boxes concerning two polling stations of Pishin-4. After hot pursuit two ballot boxes and some election material were recovered whereas remaining three ballot boxes could not be traced. Upon receipt of complaint lodged with the Election Commission, the Assistant Commissioner, Chaman, in capacity of Returning Officer for PB-9, "ashin-4, conducted preliminary enquiry and forwarded his report to the District Returning Officer Quetta, who ultimately communicated it to the Election Commission. According to. The respondent out of 977 used ballot papers recovered from the two ballot boxes, the petitioner had secured 956 votes which led the .
34. Election Commission of Pakistan to hold that there was no better evidence of rigging and malpractices in this constituency. Consequently, the result of the entire constituency was declared void and fresh polls were directed to be held. The learned Judges of the Balochistan High Court mindful of the fact that the alleged malpractices and illegalities were reported in two polling stations and not in the whole constituency set aside the order of the Election Commission and held:-- "Therefore Election Commission while considering factum of rigging malpractices, illegal practices, or violation of law or rules was obliged to see whether alleged illegalities or improprieties were reported in "the Constituency" or considerable portion thereof, or merely in one or two specified polling stations. The Election Commission was further bound to consider whether final result of the Constituency was otherwise determinable on the basis of polls conducted in the remaining majority of the polling stations. We are inclinded to observe that relevant facts, for assumption of jurisdiction have not been kept in view by Election C6mmission No.1 while passing the impugned order, besides provisions of section 27 (1) (b) and other factual aspects were completely ignored.
35. 'In this context it would be proper to mention here that Constituency PB.9 Pishin IV comprising of 57 polling stations has 95,907 voters, whereas voting strength of polling stations 43 and 44 combined together consists of 2,782 persons."
36. However, in special leave to appeal against this judgement in Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 532, the Supreme Court of Pakistan refused to grant leave to appeal interfere with the judgment of the Balochistan High Court made under Article 199 of the Constitution in the following words:- "We agree with the High Court that in a case where a serious violation of law or any statutory rule is established by a group of miscreants or by the supporters of a losing candidate in one or two polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record a clear result is determinable. In this case, respondent No.1 had obtained 5,122 votes and the next highest number of votes obtained were by the petitioner Haji Behram Khan namely 2,625 votes. Admittedly, the three ballot boxes which were not recovered obtained only 1,785 votes and even if all of them had been cast in favour of Haji Behram Khan (petitioner herein) he would still have lost. In these circumstances, to declare the election of the whole constituency as void on account of the misdoings or the hooliganism perpetrated by the supporters of other candidates would be to encourage candidates who felt that they are losing getting the whole election annulled and frustrating the wishes of the electorate. This Court will not easily countenance such a malversion of the electoral process."
37. The decision in Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 532 has brought into fore a situation in which a group of miscreants or supporters of a losing candidate with a view to defeat election results in the entire constituency may violate election laws in one or two polling stations. Confronted with such an eventuality, it was held that the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and the available record, a clear result is determinable. In the present case, however, the respondent No. 3 secured 13966 and the petitioner 11,249 votes and the total votes assigned at the three polling stations were 6,639 while the total registered votes assigned to the aforesaid five polling stations were 11,562. Although illegalities and malpractices in three polling stations stand established, clear result was not determinable on the strength of the votes cast in other polling stations where respondent Not.3 had edge over the petitioner. The voting power in the said three disputed polling stations was crucial and purported to affect the election result either way and in our view an order for repolling as envisaged under section 103-AA was justified under circumstances.
38. The matter does not end here. Reference may again be made to the unreported case of Muhammad Ayub Khan v Alamzaib Khan which was relied upon by the learned respondent No.1 in their impugned order dated 27-12-1990. In the said. Unreported judgment, learned counsel for the petitioner Mr. S.M. Zafar inter alia submitted that the Election Commission did not have the power to order repolling in one polling station in law, because at best it can only declare the poll void of the entire constituency and not of one polling station. This very stand was being taken by MrAbdul Hafeez Pirzada, learned counsel for respondent No.3 while submitting his arguments. However, this contention was duly considered by the learned Judges of the Supreme Court after going through the provisions of sections 103-AA and 108 of the Representation of the People Act, 1976 who observed as follows:-- "We are inclined to agree with the submission. The principle that when a Tribunal can decide or decree the maximum it has always the power and competency to grant the less is not applicable in the circumstances. Here under the statutory provisions in point (section 103-AA) the poll in the constituency can be declared void and the constituency called upon to elect a member in the manner provided for under section 108. In other words, it contemplates the holding of a bye- election in the entire constituency. Manifestly ordering a re-poll in one polling station does not constitute a part of this process. The relief awarded by the High Court would really constitute a step to regularise the earlier election with a view to avoid the fresh election; while section 108 contemplates a situation where the earlier election stands set aside in its entirety and thereafter when the seat has become vacant a new election to fill up the vacant seat is held."
39. What follows from the principles laid down in Haji Behram Khan v. Abdul Hameed Khan Achakzai and others PLD 1990 SC 532 and unreported judgment of Supreme Court in Muhammad Ayub Khan v. Alamzaib Khan, with reference to sections 27, 103-AA and 108 of the Representation of the People Act, 1976, is that despite illegalities and malpractices in a few polling stations, the election of the whole constituency may not be set aside if on the strength of the votes cast in other polling stations and available record, a clear result is determinable. Otherwise, the Election Commission under section 103-AA of the Act shall declare the election in the entire constituency as void and further order holding of bye-election in that constituency in manner provided under section 108 of the Act. Further, section 103-AA does not contemplate a situation whereby earlier election is regularised with a view to avoid the fresh election.
40. In the result, the petition is dismissed but with no order as to costs.