' NASIR ASLAM ZAHID, J.---Mst. Hussna and 5 others have filed this petition seeking leave against the order dated 16-4-1999 of the Balochistan High Court allowing the Constitutional petition filed by private respondents (Khair Muhammad and 5 others). When this matter came up for orders on stay application, notice was directed to be issued to the respondents and in the meantime private respondents were restrained from performing any fucntion in the capacity as Chairman and members of the Union Council, Mir Pur (hereinafter referred to as "the Union Council"). We have heard the arguments of Mr. M.S. Rakhshani, leanred Advocate Supreme Court for the petitioners, Mr. Malik Sikandar, learned Advocate-General, Balochistan, for the official respondents and Mr. M.K.N.
Kohli, learned Advocate-on-Record for the private respondents. Learned counsel has taken us through the relevant record.
2. Balochistan Election Authority (hereinafter referred to as "the Election Authority") through a notification, dated 5-1-1999 announced the Elections Schedule (Local Bodies) in respect of seats for Special Interest (Women) Workers and Peasants. According to the Returning Officer (Assistant Commissioner) only nomination papers of 6 private respondents were received which were accepted and according to him no other nomination papers were filed within time. The case of the petitioners was that they had presented nomination papers within time but the Returning Officer refused to entertain the same on the ground that the said nomination papers had not been filed within time. Being aggrieved, the petitioners approached the Election Authority praying that the Returning Officer be directed to entertain their nomination papers. The Election Authority by order dated 9-4-1999 accepted the plea of the petitioners and forward the same to the Appellate Authority, Nasirabad to decide their cases on their own merits. The Appellate Authority accepted the nomination papers of the petitioners and directed that the nomination papers of the petitioners shall be treated to have been received in time and directed the Returning Officer to scrutinize the same. Nomination papers of the petitioners were scrutinized by the Returning Officer and the same were declared to be valid. Being aggrieved, private respondents filed a Constitutional petition before the Balochistan High Court which was allowed by a short order dated 16-4-1999 which reads as follows:-- "Process has been issued for the respondents as directed vide our order dated 15-4-1999. Returning Officer was also directed to produce the record pertaining to the nomination papers, if any, filed by the respondents by deputing some official. Mr. Abdul Hafeez. A.C. Returning Officer is present in person along with the record called for from him. In view of the process issued for the private respondents by telex and wireless message copies (office copy available on record) presumption is that the private respondents have been served and; on their behalf Mr. Abdullah Khan, Advocate has filed Vakalatnama.
' We have heared the learned counsel for the parties at length. Mr. Abdul Hafeez, Assistant Commissioner, Returning/ Officer, Gandawa, filed his statement in writing, which had been perused by both the learned counsel for the parties. Mr. Abdullah Khan, in view of the statement filed by the Returning Officer, requested that he may be allowed to file counter-affidavit to such statement. It may be noted that no affidavit has been filed by the Returning Officer nor his such statement has been recorded on oath as such; no counter-affidavit need be filed. Moreover, it is now 5-20 p.m.
And on Friday this Division Bench is holding the Court since 9-00 a.m. In the morning in Elections matters, which is to be held on 17-4-1999, therefore we find no reason to further postpone the hearing. It may be noted that statement in writing was filed on the direction of the Court because the Returning Officer submitted the same facts really therefore, we thought fit to obtain such statement in writing from the Returning Officer.
' For the reasons to be recorded separately, order impugned in this Constitutional petition passed by the learned Appellate Authority on 12-4-1999 is set aside, consequently the nomination papers filed by the private respondents directed to be treated as having not been validly filed by them respectively.
' Petition stands disposed of in the above terms, leaving the parties to bear their own costs."
' Detailed reasons became available on 12-6-1999. Paras. 8 and 9 of the detailed judgment are reproduced here:-- "8. We have heard the learned counsel for the parties at length and have gone through the affidavit filed by the Assistant Commissioner Returning Officer, Gandawah, which has not been rebutted by the respondent. The contention of Mr. H. Shakeel Ahmed, Advocate has substance that since the time schedule was given for filing of the nomination papers and the respondents failed to file the same within the said time period. Thus the learned Appellate Authority had no jurisdiction to condone the said time.
' Admittedly the respondents did not file their nomination papers within time, ' Thus as a result of the above discussion we are inclined to condone time therefore, the petition is accepted and the nomination papers of the respondents Nos.4 to 9 for the Special Interest Seat of Worker, are hereby rejected. Parties are left to bear their own costs. Above are the reasons of our short order dated 16-4-1999."
3. Elections were scheduled to be held on 17-4-1999 whereas nomination papers had to be filed on 5-4-1999 from 9-00 a.m. To 2-00 p.m. According to the statement (as per the short order but described as an affidavit in the detailed judgment dated 12-6-1999 of the High Court) it was stated by the Assistant Commissioner/ Retuming Officer that on the day of the filing of the nomination papers i,e, 5-4-1999, no nomination papers were filed or received from the petitioners during the notified hours, namely, 9-00 a.m. To 2-00 p.m., but the same were received later on, on the orders of the Commissioner.
4. The only point which required determination by the High Court in the Constitutional petition filed by the private respondents was whether the 6 petitioners had filed their nomination papers on 5- 4-1999. The High Court decided this point on the statement/ affidavit of the Returning Officer, who stated that the nomination papers had not been filed within the time. i,e, 9-00 a.m. To 2-00 p.m. On 5-4-1999. The case of the petitioners has been that they had presented their nomination papers within time but the same were returned. They again made an effort on 6-4-1999 but the Returning Officer refused to entertain the nomination papers and on 7-4-1999, the day of the scrutiny, he found the nomination papers of the private respondents to be in order.
' Petitioners had immediately approached the Appellate Authority and the plea of the petitioners was accepted. Reliance had been placed on the affidavits filed by the petitioners that the Returning Officer unlawfully refused to entertain their nomination papers presented/filed within time on 5-4-1997. The Appellate Authority, as observed, accepted the plea of the petitioners and thereafter Returning Officer accepted the nomination papers after finding the same to be in order.
' However, from the short order dated 16-4-1999 of the High Court it follows that on the same day a statement/ affidavit had been filed by the Returning Officer that no nomination papers had been filed by the petitioners which was sought to be challenged by the petitioners by filing a counter- affidavit but the said request was denied by the High Court on the ground that no affidavit had been filed by the Returning Officer nor his statement had been recorded on oath and as such no counter-affidavit need to be filed, but this position seems to be contrary to what is recorded in the detailed judgment. As observed, the High Court in para. 8 of the detailed judgment has observed that the learned counsel for the parties had been heard at length and the High Court had also gone through the affidavit filed by the Assistant Commissioner/ Returning Officer, "which had not been rebutted by the petitioners". The aforesaid observation in the detailed judgment does not appear to be correct as in the short order it has been recorded by the High Court that no affidavit had been filed but only a statement was submitted and, therefore, no counter-affidavit needed to be filed by the petitioners who wanted to rebut the factual stand taken by the Assistant Commissioner in his statement (not an affidavit).
5. The Elections were scheduled to take place on 17-4-1999 and in view of the short order dated 16- 4-1999 it is informed that all the 6 private respondents were elected unopposed as there were 6 seats to be filled up.
6. After hearing learned counsel for the parties including the learned Advocate-General and going through the record, the short order and the detailed judgment of the High Court, we are of the view that the High Court's judgment cannot be sustained. The apparent contradiction between the short order and the detailed judgment has been pointed out. It is apparent that despite the petitioners wanting to rebut the statement filed by the Returning Officer, the High Court did not permit the petitioners to do so and bring on record their version that they had filed their nomination papers within time.
' As observed, the nomination papers were to be filed on 5-4-1999 which, according to the petitioners, were filed within time but the nomination papers were returned illegally by the returning officer and then they made an attempt on the next day i,e, 6--4-1999 but when this attempt failed and on the scrutiny day on 7-4-1999, only the nomination papers of the private respondents were accepted, petitioner approached the Appellate Authority the same day i,e, 7-4-1999. From all this record it appears that the nomination papers were filed by the petitioners in time but these were unlawfully refused to be entertained by the Returning Officer and on the other hand the High Court did not permit the petitioners to rebut the stand taken by the Returning Officer and this had enabled the private respondents to be elected unopposed.
7. In the circumstances, this petition is converted into an appeal which is allowed, the impugned judgment dated 12-6-1999 of the High Court (and short order dated 16-4-1999 of the High Court) are set aside. Resultantly, the unopposed elections of the six private respondents is declared to be without lawful authority and of no legal effect . As a result, fresh elections may be held for the aforesaid seats by the concerned authorities in accordance with law.