1. ' BASHARAT AHMAD SHAIKH, J.---In these two appeals, with leave of the Court, common questions of law and facts are involved and the High Court has decided the subject-matters of the appeals through a common judgment. Therefore, this judgment will dispose of both the appeals.
2. ' The facts in Gul Sher Khan's case (Civil Appeal No,28 of 1993) are that appellant Gul Sher Khan and respondents Muhammad Ilyas, Muhammad Fiaz Khan, Puno Khan and Muhammad Naeem participated in the election for membership of District Council, Kotli reserved for Union Council Panjaira in the election held on 21st of November, 1991. Gul Sher Khan was declared elected having secured 1,403 votes while his closest rival, respondent No,1 Muhammad Ilyas, polled 982 votes.
3. Muhammad Ilyas filed an election petition before the Election Tribunal which was accepted. The Tribunal recorded the finding that at polling station Gala Samyar, there was disturbance and some unknown persons started firing which continued till 2 o'clock and due to this disturbance the voters left the polling station. The Tribunal found that Police reached the polling station at 3-00 p.m. But polling could not be recommenced. A similar finding was also recorded in respect of Polling Station Siah. The Tribunal observed that at Polling Stations Gala Samyar and Siah, the number of enrolled voters, respectively, was 797 and 897 while the total number of the votes polled at two polling stations was 67. It was, therefore, concluded by the Tribunal that in view of the disturbance at the aforesaid polling stations 1,627 voters could not exercise their votes which number was more than the difference of votes polled by Gul Sher Khan and Muhammad Ilyas. The Tribunal reached the conclusion that situation was covered by clause (c) of rule 60 of the Azad Jammu and Kashmir Local Government Election Rules, 1983. Omitting the irrelevant part of the aforesaid rule reads as follows:- "60. Grounds for declaring an Election void,---The Election Tribunal shall declare an election to be void if it is satisfied that:-- (b)
(c) the failure of any person to comply with the provisions of the Ordinance or these rules has materially affected the results of the election; and ' The Tribunal formed the view that Rules Nos.29 and 30 of the aforesaid Election Rules had been violated because where the polling is interrupted due to disturbances etc. Then repolling should be arranged but the necessary repolling was not held in the present case. Accepting the election petition, the Tribunal ordered that repolling should be held at the two polling stations mentioned above. It was ordered that after conducting repolling at the aforesaid stations the result of the District Council seat may be compiled afresh. While passing this order the Election Tribunal invoked clause (b) of rule 62(1) of the Azad Jammu and Kashmir Local Government Election Rules, 1983.
4. ' The facts in Civil Appeal No,29 of 1993 are that appellant Tanwir Hussain Shah and respondents Rehmat All Shah, Abdul Razzaq and Wali Muhammad contested the election for membership of Union Council Banir from Hill Kalan Ward, Tehsil and District Kotli. Hill Kalan is a two-member ward.
5. Tanwir Hussain Shah and Wali Muhammad were declared as elected by securing 336 and 320 votes respectively. Respondents Nos.1 and 2, Rehmat All Shah and Abdul Razzaq, the other two candidates, polled 279 and 168 votes respectively. Both the them filed separate election petitions which were consolidated and disposed of by a single judgment by the Election Tribunal. The Election Tribunal accepted the election petitions and declared the election at Primary School Tehalla to be void because polling could not be held on this polling station in accordance with the provisions of law. Repolling was ordered on the aforesaid polling station. Gul Sher Khan filed writ petition in the Azad Jammu and Kashmir High Court to challenge the order passed by the Election Tribunal. Another petition was filed by Tanwir Hussain Shah. The orders passed by the Election Tribunal were attacked on the grounds that the Election Tribunal had no jurisdiction to declare the election of a particular polling station to be void and, therefore, could not order the holding of fresh polling at that station. It was contended that under law Election Tribunal could either declare the whole election as void or declare the election of the returned candidate to be void but could not pass the order of repolling at one or more of the polling stations as was done by the Election Tribunal. It was also contended that the orders passed by the Tribunal were against the evidence on the record. A perusal of the judgment of the High Court shows that the point about the factual aspect of the case was not urged before the High Court. This point was again included in the memorandum of appeal but has not been pressed during arguments before us.
6. ' On the other point, namely, whether the Election Tribunal could not order repolling on one or more of the polling stations, the High Court formed the view that the Election Tribunal was authorised to declare the election of a particular polling station to be void and could validly order repotting at that particular polling station.
7. ' The learned counsel for the appellants in both the appeals, Ch. Muhammad Taj, contended that sub-rule (1) of Rule 62 of the Azad Jammu and Kashmir Local Government Election Rules, 1983 did not provide for ordering repolling at a particular polling station. He submitted that the Election Tribunal is a forum of limited jurisdiction and can only exercise those powers which are specifically conferred on it. The learned counsel submitted that the powers given in clauses (a) to (d) of sub- rule (1) are exhaustive and there is no other power which may be exercised by the Tribunal. He pleaded that if the election petition is not dismissed, the Election Tribunal has to declare the election of a returned candidate to be void. According to his argument the Tribunal is then authorised in given circumstances, to declare the petitioner before the Election Tribunal or any other candidate as duly elected.
8. ' Mr. Muhammad Yunus Suralchvi, the learned counsel for the respondents, on the other hand contended that the Election Tribunal did not act against law by ordering repolling at the particular polling stations where polling had not been conducted in accordance with law and a number of people had been deprived of their right of franchise. The learned counsel submitted that there was no legal justification for ordering fresh election at polling stations where polling had been held peacefully and the result had been compiled in accordance with the relevant rules and, therefore, repolling could only be held at the places where there was disturbances. Mr. Muhammad Yunus Surakhvi submitted that every wrong has a remedy and the Tribunal has rightly ordered repolling at only those polling stations where there has been disturbances.
9. ' Relevant portion of the judgment of the High Court is as follows:-- "24. As clause (b) of the rule 62 is concerned, it deals with the eventuality as arisen in the instant case. According to clause (b), the election tribunal can declare the election void. It does not contain that the election tribunal has to declare the election as a whole void, but it conveys that the election tribunal can declare the election as void. If these rules shall be read along with the rule 60, clause (c), then it further clarifies that where any non-compliance of rules has materially affected the result of the election then the election can be declared void. It does not contain that whole of the election is to be declared void, but when the Election Tribunal reached the conclusion, that on a particular polling station corrupt practice or illegalities have been committed and due to that the result of the election has been materially affected, then the Election Tribunal can of course, declare the election of that particular polling station as void and can order for repolling on that particular polling station."
10. ' Rule 30 of the Rules provides for holding of fresh poll at a polling station where polling has been interrupted or obstructed for reasons beyond the control of the Presiding Officer but power to order such a poll is vested in the Election Commissioner of the Local Bodies. The question is whether this power is vested in the Election Tribunal?
11. ' The argument of the appellants is based on sub-rule (1) of Rule 62 of the Azad Jammu and Kashmir Local Government Election Rules, 1983. Sub-rule (1) of rule 62 is to the following effect:- "62. Decision of the Election Tribunal.--(1) At the conclusion of the trial of an election petition, the Election Tribunal shall make an order:-
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring election as a whole to be void. (2)
12. ' In the light of this provision of law we are of the opinion that the conclusion drawn by the High Court is not sustainable. Under clause (b) the Tribunal is authorised to declare the election of the returned candidate to be void and the power given under clause (d) is to declare election to be void as a whole. The High Court has held that under clause (b) the Tribunal has been given the power to declare the election at a particular polling station to be void but the phraseology of this clause does not countenance this construction. This clause clearly provides that the election of the returned candidate can be declared to be void. "Election of the returned candidate" clearly refers to the result of the election in which a person has been declared as elected which can only be done after tabulating the result of all the polling stations in a constituency. The clause does not contain any direct or indirect reference to a particular polling station. We do not find any force in the argument that since there was no disturbance at the other polling stations repolling at those stations could not be ordered. It is for the law-maker to give or not to give a certain power to the Election Tribunal. As the law is, in case in which the election of a returned candidate has been materially affected by any irregularity or noncompliance of the law the election has to be declared to be void and fresh election at all the polling stations of the constituency has to be held. It is not for the Court to find out the wisdom behind a particular enactment or to adjudicate upon its reasonableness. The Courts cannot through logical deduction draw conclusions which do not flow from the letter of the law.
13. The matter becomes clear from another angle. The Election Tribunal has held that elections in dispute were not conducted in -accordance with the Azad Jammu and Kashmir Local Government Act and the rules made thereunder and that the result of the election has been materially affected.
14. This fording is based on cogent evidence and is thus sacrosanct for a Court exercising writ jurisdiction. As already mentioned, the findings of fact have not even been challenged before the High Court or before this Court. Rule 60 of the Rules under reference mentions eight grounds and lays down that Election Tribunal shall declare an election to be void if it is satisfied that one of these grounds is present. Therefore, once the Election Tribunal reached the conclusion that there had been failure to comply with the Ordinance and the rules made thereunder and that failure had materially affected the result of the election it was bound to declare the election of the returned candidates to be void. In our view the word "election" used in rule 60 does not refer to polling at a particular station but result of the election compiled after tabulating all the votes secured by contesting candidates from the polling stations of that constituency.
15. ' Thus, having recorded the finding that the election to the seats under dispute had been materially affected by the non-compliance of law, the Tribunal was bound to declare the election of the returned candidates to be void but it instead ordered the repolling on particular polling stations.
16. We have already seen that this power does not vest with the Tribunal and order of repolling was without jurisdiction and of no legal effect. The order of repolling has, therefore, to be set aside. It follows that there has to be re-election to the seats under reference.
17. ' Consequently both the appeals are accepted and orders passed by the High Court are partly vacated in terms that election of returned candidate Ghul Sher Khan for the District Council seat and the elections of returned candidates Tanwir Hussai Shah and Wall Muhammad for the seats of Union Council Banir Ward Hill Kalan are declared to be void. Consequently there will be re-election to fill up these seats. The parties are left to bear their own costs throughout.