' MIR HAZAR KHAN KHOSO, C.J.---Petitioner, thorugh this Constitutional petition has assailed the order pased by Election Commission of Pakistan, directing fresh polling at following polling Stations in PB-38 Turbat-II Balochistan:--
(1) Polling Station No,5 Primary School Chib.
(2) Polling Station No,6 High School, Mehnaz.
(3) Polling Station No,3 Improvised Jardain.
2. Relevant facts briefly stated are that "General Elections 1990" for the Provincial Assemblies were held on 27th October, 1990. Petitioner and private respondents were candidates for contesting election in PB-38 Turbat-II in Province of Balochistan.
' It is alleged by petitioner that on the day of polling, ballot-boxes and ballot papers from three polling statons namely. "CHIB", "MEHNAZ" and "JARDAIN" were forcibly taken away by the rival candidates and Assistant Presiding Officers were also kidnapped. It is the case of petitioner that election results at polling stations "SORDAG", "DARABOLI" and "GRAY BONE" were got changed by exercising official influence and massive rigging was carried out at different places. The Returning Officer vide memorandum No,1107-12/Elec/90, dated 29th October, 1990 appraised the Provincial Election Commissioner of Balochistan, Quetta about glaring illegalities committed during polling in PB-38 Turbat-II. Petitioner also separately submitted a grievance petition under section 103-AA of the Representation of People Act, 1976 (hereinafter referred to as "the Act"), before the Election Commission of Pakistan, praying for holding summary enquiry and declaring election of constituency to be void. Learned Election Commission while deciding the petition, directed re- polling in polling stations "CHIB", "MEHNAZ'and "JARDAIN" by means of impugned order.
' Mr.Muhammad Aslam Chishti, Advocate learned counsel for petitioner strenuously contended that the Election Commission (sic) of grave illegalities in the holding of polls in Constituency PB-38 Turbat-II therefore, under Section 103-AA of "the Act", it was obligatory for it to hold fresh elections in the whole constituency instead of mere-rolling in three polling stations. Reliance was placed on the observation in unreported decision of Supreme Court in Appeal No,96-R of 1989 Haji Ayub v.
Aurangzeb, decided on 13th March, 1989, and (ii) Haji Behram Khan v. Abdul Hamid Khan Achakzai PLD 1990 SC 352. He submitted that material placed before the Commission clearly disclosed massive rigging, kidnapping of Presiding Officers and glaring changes in the result sheets through official influence, therefore, whole election of said constituency was materially affected. According to learned counsel, the Election Commission had failed to lawfully exercise jurisdiction vested in it.
4. While on the other hand, Mr.Yahya Bakhtiar, the learned counsel for respondent No,3 vehemently objected to the maintainability of Constitution petition. He argued that not only alternate remedy by way of Election Petition is prescribed by "the Act" but its Section 105 and Article 255 of the Constitution also explicitly bars jurisdiction of this Court for entertaining any Constitutional Petition concerning election disputes. To supplement his submissions, reliance was placed on (i) PLD 1965 Lahore 560, (ii) PLD 1966 SC 1, and (iii) PLD 1989 SC 396. It was urged that apart from section 103-A other provisions of "the Act" authorise the Election Commission to direct rolling. Therefore, according to learned counsel, impugned order was valid and proper.
5. Mr. Muhammad Riaz Ahmad, learned Standing Counsel also specifically challenged the competency of this constitutional petition. In addition to aforequoted judgments, AIR 1988 SC 61 was also referred to. Learned Standing Counsel contended that adequate alternate remedy by way of Election Petition was duly provided by law therefore, extraordinary remedy could not be invoked. It was argued that the Election Commission under Sections 27 and 103 of "The Act" was competent to direct rolling in view of irregularities noticed by it as held in the instant case.
' Similarly learned Advocate-General opposed the petition.
6. We have carefully considered the arguments addressed by the learned counsel for the parties.
7. Attending to preliminary objection regarding jurisdiction and maintainability of this petition, it may be seen that orders of the Commission passed under section 103-AA have not been made appealable under any statute, which is further clarified by explanation to sPction 67 of "The Act". For ready reference it is reproduced below:- "67. Decision of the Tribunal.--(1) The Tribunal may upon the conclusion of the trial of an election petition make an order-
(a) dismissing the petition.
(b) declaring the election of the returned candidate to be void.
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in subsection (3) the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may within thirty days of the announcement of the decision appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.
' Explanation.--In this subsection decision of the Tribunal "shall not be deemed to include an order made by the Commission in the exercise of its powers under Section 103-AA."
Regarding contention of learned counsel for respondents about alternate remedy by way of Election Petition under section 52 of "The Act", it may be observed that Election Tribunal under Chapter VII of "The Act" deals with Election disputes and has no authority to examine the validity of any order passed by Election Commission. In this view of the matter, the autorities relied upon by the learned counsel for the respondents have no applicability. Accordingly, the preliminary objection has no force and is repelled.
8. Turning to main point involved in the petition about powers under section 103-AA of 'The Act", a question arises whether Election Commission has the authority to direct partial repolling or is bound to declare the elections of a constitutency void in entirety. For better understanding, relevant provision is reproduced below:- "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 constitutency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under subsection (4) of section 42, the Commission may "exercise the power 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 tribnunal to which an Election Petition has been presented and shall notwithstanding anything contained in Chapter VII, regulate its own procedure."
Pre-reading of the aforesaid provision manifests that after summary inquiry, as deemed necessary the Election Commission may declare the polls in the Constituency to be void and call upon the constitutency to elect a member in the manner provided for under Section 108 of "The Act". This proposition has been elaborately interpreted by the Hon'ble Supreme Court of Pakistan in the case of Haji Muhammad Ayub Khan v. Aurangzaib Khan and others in C.P.No,96-R of 1989, decided on 13th March, 1989. The relevant observations are reproduced below:-- "It is submitted that the power vested in the Commission under section 103-AA. Specificlly lays down that the poll in the constituency can be declared void and empowers it to hold bye-elections in terms of Section 108 of the Act. The phrase used in section 103-AA (1) "call upon that constituency to elect a member in the manner provided for in section 108" he submits is clearly indicative that bye-election in that "constituency" is envisaged by the Section."
' Section 108 (1) provides: ' When the seat of a member becomes vacant, the Commission shall by notification in the official Gazette, call upon the constituency concerned to elect a person to fill the seat for such 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." We are inclined to agree with this 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 provision 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.
' It is true that while arriving at the consclusion re-poll could be ordered in only one polling station the High Court sought strength from an order passed by the Commission in respect of Constituency NA-34 Tribal Area 8. However, the learned Division Bench has failed to appreciate that the order passed by the Commission in the said case was on the agreement of the parties. The relevant part of the order of the Commission in that case is reproduced hereunder for appreciation:-- "Admittedly the names of 20 persons were illegally enrolled as voters in the electoral rolls of F.R.
Bannu. Of these 13 persons have cast their votes at the polling station located in that area. The learned counsel agreed that on account of illegal enrolment of these persons it is a fit case for interference by this Commission. The learned counsel further agreed that fresh poll has become necessary at the polling station F.R. Bannu to ensure free and fair election in Constituency No,NA-34 Tribal Area 8."
' In the light of the admitted position and agreement of the parties the Commission directed a re- poll at that polling station where admittedly 20 persons had been illegally enrolled. This instance could not have been relied upon by the learned Division Bench as a precedent.
' We would, accordingly convert this petition into an appeal and allow it with the result that the order of the High Court dated 21st February, 1989 in set aside and that of the Election Commission dated 30-11-1989 is restored Parties arc left to bear their own costs."
9. The learned counsel for the respondents attempted to argue that the impugned order of the Commission should be deemed to have been passed under Section 27 or 103 of "The Act".
It may be seen that Commission while passing the impugned order had on the relied upon report of Assistant Commissioner-cum-Returning Officer PB-38 Turbat-II dated 29th October, 1990 petition under section 103-AA of "The Act". There is absoluely nothing on record to show order relating to stoppage of polls at any polling stations on 27th October, 1990, therefore, Section 27 of "The Act" has no relevancy. Whereas Section 103 of "The Act" is of supervisory and administrative nature empowering the Election Commission for ensuring fair elections. The power specified therein can be utilized during the conduct of polls and not thereafter. Therefore, by whatever angle, the impugned order is visualized, it would appear that Election Commission has passed the same under section 103-AA, but not under section 103 of "The Act".
10. From the above discussion, we are inclined to hold that order of the Election Commission as regards partial repolling is defective. The Election Commission having exercised powers under section 103-AA of "The Act" was bound to hold the election in the whole Constituency (PB-38 Turbat-II) to be void. We are, therefore, inclined to declare so and order that fresh polls as contemplated under Section 108 of "The Act" be held in the Constituency.
' The petition is disposed of in the above terms with no order as to costs.