IFTIKHAR MUHAMMAD CHAUDHRY, J.--This is a petition for leave to appeal against judgment of High Court of Balochistan dated 22nd August, 2001 whereby Constitutional Petition instituted by the petitioner against the order of Returning Officer dated 4th August, 2001 who after .Completion of process of recounting declined to hold a runoff election between petitioner and respondents Nos. 3 and 4 because they failed to secure more than 50% of votes, has been dismissed.
2. Succinctly stating facts of the case are that as a result of polling held for the office of District Nazim and Naib Nazim petitioner and respondents Nos. 3 and 4 and to other candidates secured following votes out of total number of 949 of electoral college of the Constituency of District Nasirabad:-- Petitioner : 416 votes.
Respondents No. 3 and 4 : 479 votes Munawar Ali Khan 1 vote Mir Aurangzeb Jamali 10 votes."
As a result of recounting on the behest of the petitioner who submitted application for doing needful before the Returning Officer the actual number of the votes secured by respondents Nos. 3 and 4 came to 475 as their 4 votes were found invalid. It may be noted that according to section 16(3) of Balochistan Local Government Election Ordinance 2000 (hereinafter referred to as the "Ordinance") as amended by Balochistan Local Government Election (Third. Amendment)
Ordinance, 2001 promulgated with effect from 5th July 2001 respondents Nos. 3 and 4 were required to secure moire than 50% of the votes of Union Councils. The votes secured finally by respondents Nos. 3 and 4 being 475 were not moire than 50% of 949, therefore, Returning Officer instead of directing runoff election between the petitioner, and respondents Nos. 3 and 4 because both of them have secured highest votes respectively declared the respondents successful as District Nazim and Naib Nazim respectively..
3. Against the order of Returning Officer petitioner instituted Constitutional petition before High Court of Balochistan challenging the final result of Returning Officer in pursuance whereof Notification has also been issued declaring respondents Nos. 3 and 4 to be the District Nazim and Naib Nazim with the prayer that such action may be declared void and further the Returning officer be directed for holding runoff election. The petition was contested by the respondents.
It seems that in principle learned Division Bench of the High Court accepted the contentions of the petitioner as indicated from the following portion of the judgement:-- "The law has been laid down in calculating the percentage, therefore, the principle equally shall apply while calculating the result under Section 16(3) of the Ordinance and 57 of the Election Rules.
The private respondents have obtained 475 votes out of 949, the 50% would be calculated to 474.5 half number shall be rounded upto the next higher number i.e. 475. There is . Need of one more vote to achieve the requisite more than 50% of votes for declaration of candidates and again by adding of one vote the figure would increase to that of 475.5 which mean 476. The other simple way of calculation would be that 50% of the total votes of 949 comes to 474.5 while the private respondents have obtained 475 meaning thereby more than 50% of the total votes. On the principle laid down in section 37 of the Balochistan Local Government Ordinance, 2001. The fraction would be irrelevant because votes certainly man the members who have a right of poll and cannot be subject matter of fraction but certain parameters, principles and procedure has been provided in Section 37 of the Ordinance of doing of -a thing in a particular manner, such thing should be done in the manner or not done at all (PLD 1980 Quetta 1)..."
Although in the above observations it has been categorically accepted by learned Division Bench of the High Court that respondents Nos. 3 and 4 ought to have secured 476 votes to fulfil the condition of securing more than 50% votes out of total 949 votes of the Constituency but instead of granting relief to the petitioner as prayed for the Constitutional Petition was dismissed. As such instant petition has been filed.
4. Learned counsel for the petitioner contended that the Division Bench of High Court of Balochistan on having accepted the contentions of the petitioner rightly interpreted provisions of section 16(3) read with section '37 of the Ordinance and Rule 57 of the Balochistan Local Government Election Rules 2000 therefore, it had no occasion to dismiss the constitutional petition filed by the petitioner.
He played that error committed by the Division Bench in dismissing the petition instead of allowing the same may be corrected and relief as it has been prayed for of holding runoff election between petitioner and respondents Nos. 3 and 4 be ordered-in the interest of justice.
5. Khawaja Ahmad Tariq Rahim, learned ASC present in the Court undertook to file caveat on behalf of respondents Nos. 3 and 4 and stated that learned Division Bench of the High Court wrongly applied section 37 of the Ordinance for the purpose of making calculation to determine that respondents Nos. 3 and 4 have failed to secure more than 50% of the total votes of the constituency i.e. 949. According to him section 37 of the Ordinance deals in respect of composition of Zila Council etc. It was pointed out to him that respondents Nos. 3 and 4 have conceded to the judgment as . They have not challenged it therefore, the argument being raised by him in not available. On this learned counsel stated that some time may be given to him so that he may file documents in support of the case of respondents Nos. 3 and 4.
6. We have heard the learned counsel for parties and have gone through the impugned judgment.
In our opinion when High Court itself has observed that respondents Nos. 3 and 4 should have obtained 476 votes out of 949 Votes to fulfil the condition of securing more than 50% of the total votes of the constituency under section 16(3) of the Ordinance then what was the reason to decline relief to the petitioner and instead of accepting the constitutional petition it has been rejected perhaps inadvertently. Therefore leave to appeal is granted to inter alia examine the aforesaid contention of the learned counsel for the petitioner.
C.M. No. 1862/2001 Pending decision of the appeal the operation of the impugned judgment is suspended and concerned D.C.O.I. Of District Nasirabad is directed to discharge the functions of District Nazim.
Learned counsel for respondents Nos. 3 and 4 stated that the case may be ordered to be fixed at an early \late.. Office may do so after soliciting necessary approval from the Hon'ble Chief Justice.