' NASIRUL MULK, J.--- In the Local Bodies Elections held in July, 2001, Yasin Khan Khalil and Akram Khan were elected as Nazim and Naib-Nazim respectively for the Union Council Tehkal Payan, Peshawar. They were duly notified as returned candidates on 27-7-2001. Their election was challenged through election petition by another team of candidates comprising of Atifur Rahman and Bashir Khan, who lost the election by just one vote. During the pendency of the election petition, the elected Nazim, Yasin Khan Khalil, was elected as member of the Zila Council and by exercising his option he resigned from the office of Nazim. The Election Commission of Pakistan announced the schedule for by-election to the office of Nazim, Tehkal Payan, vacated by Yasin Khan Khalil. Atifur Rahman and Bashir Khan whose, election petition was pending before the Election Tribunal, moved an application for restraining the Election Commission of Pakistan from holding the by-election. The application was allowed on 6-10-2001 and the polling scheduled for 16-10-2001 was directed to be postponed till the disposal of the election petition. Haji Tehmash Khan Khalil, candidate in the by-election, and Shah Jehan and Faizullah voters of Union Council Tehkal Payan, have filed this Constitutional petition questioning the legality of the order of 6-10- 2001.
2. Mr. Jehanzeb Rahim Barrister, the learned counsel for the petitioners contended, with reference to section 16, read with section 18-A of the N.-W.F.P. Local Government Election Ordinance, 2000 (hereinafter called "the Ordinance") that since Yasin Khan Khalil and Akram Khan Khalil were elected as joint candidates to the office of Nazim and Naib-Nazim respectively, the resignation of the former should automatically lead to the vacation of the office by the latter. Taking this argument further, the learned counsel referred to rule 88 of the N.W.F.P. Local Government Rules, 2000 (hereinafter referred to as "the Rules") and submitted that the election petition should have been dismissed .As there remained no respondent to contest the election petition. The learned counsel further submitted that the Election Tribunal had no jurisdiction to postpone the elections as the holding of the elections were within the exclusive jurisdiction of the Election Commission of Pakistan. That in any case the question of holding or otherwise of the by-election was outside the scope of the election petition pending before the Election Tribunal. It was pointed out that in the election petition, there was no specific prayer made for recount and therefore, the margin of one vote by which the petitioners before the Tribunal lost the election, would not eventually make any difference to the result. The learned counsel cited a number of authorities in support of his contention that Courts should not interfere with the election process through interim orders. Some of the judgments cited at the Bar are Muhammad Yousaf Khattak v. S.M. Ayub PLD 1972 Pesh. 151, Col. (R) Mukhtar Hussain v. Wasim Sajjad and others 1986 SCMR 48, Ch. Muhammad Ali v.
Government of West Pakistan PLD 1966 (W.P.) Lah. 335, Shehzada Saeedur Rashid Mehmood Abbasi v. Nawab Salahuddin Ahmad Abbasi 1997 CLC 1716, Muhammad Abdullah Tahir v. Muhammad Usman Khan Abbasi 1998 CLC 612 and Jalal Din v. Assistant Commissioner 1988 MLD 690.
3. Mr. Abdus Samad Khan, the learned counsel appearing for the contesting respondents Nos.7 and 8 submitted that the Election Tribunal was conferred by rule 79 of the Rules all the powers of a Civil Court trying a civil suit under the Civil Procedure Code, which obviously included the power to grant temporary injunction. Reliance was placed upon Muhammad Abdullah Khan v. Sahibzada Muhammad Usman Khan Abbasi 1997 MLD 2983 and Muhammad Akhtar Butt v. The Election Tribunal 1999 MLD 2793. The learned counsel submitted that all the three ingredients for the grant of temporary injunction were in favour of the respondents in that the winning margin was only one vote and that in case the by-elections were held,.The election petition of the respondent before the Election Tribunal would have become infructuous.
4. The contention of the learned counsel for the petitioner regarding' maintainability of the election petition after resignation of the Nazim, is taken up first. There is no doubt that under section 16 of the Ordinance, candidates for the office of Nazim and Naib-Nazim have to team up and contest as joint candidates. It is further clear that the disqualification of one results in the rejection of the nomination paper of both. The team as a whole fails or succeeds in the election. These conditions are, however, applicable during the, initial elections. Special provision, under section 18-A of the Ordinance has been made for the filling up of a casual vacancy of a member whose seat becomes vacant during the term of a council. Under section 8(2) of the Ordinance, member includes Nazim and Naib-Nazim for the purpose of the Ordinance. According to section 18-A vacancy in a council is to be filled up through by-election. As regards the vacancy of the office of Nazim, subsection (2) provides that till the filling up of the office through by-election, an officiating Nazim shall be elected by majority votes of the members of the council. NaibNazim is expressly barred from contesting the by-elections or that of officiating Nazim. There is, therefore, no express provision that with the vacancy of the office of Nazim, the Naib-Nazim shall also vacate his seat and there shall be a by-election for both the seats. Section 18-A clearly envisages by-election to the seat vacated by a member which includes a Nazim. Furthermore, the very provision that a Naib-Nazim is not eligible to contest by election for the seat of Nazim means that the Naib-Nazim retains his seat notwithstanding vacation of the seat by the Nazim. Since the Naib-Nazim retains his seat, the election petition filed by the losing candidates cannot be dismissed under rule 88 of the Rules. Even otherwise rule 88 provides that when there are no respondents left to contest an election petition, the Tribunal shall decide the same ex parte, leaving no room for its dismissal on that ground. The first objection of the learned counsel for the petitioner is thus, not maintainable. In any case, this plea had not been taken before the Election Tribunal.
5. As regards the powers of the Election Tribunal to grant temporary injunction, reference may be made to rule 79, which empowers the Election Tribunal to exercise all the powers of Civil Court trying a suit under the Civil Procedure Code. Undoubtedly, this would include the powers under section 151 and Order 39, rules 1 and 2 of the Civil Procedure Code.
6. The next question is whether the powers to grant temporary injunction had been rightly exercised by the Election Tribunal in the present case by postponing the election. True that the Courts are slow in interfering with the process of election and ordinarily would not postpone the elections already announced. However, it has been recognized consistently that Courts can in appropriate cases grant interim relief against the process of election. Reference may be made to the case of Shahzada Saeedur Rashid Mahmood Abbasi (ibid).
7. In the present case, the petitioners before the Election Tribunal had lost election by one vote.
They had alleged corrupt practices. The possibility of recount by the Tribunal after recording of evidence cannot be ruled out, even though not specifically prayed for in the election petition. In view of the very narrow winning margin, there is every likelihood of change in the ultimate result. In case by-elections are allowed to take place, the election petition before the Election Tribunal would become infructuous. However, if the same is dismissed, the by-election would eventually take place. The inconvenience to the petitioner before the Election Tribunal would be far greater in case the elections are held than it would be to the present petitioners, one of whom is a candidate in the by-election, if the elections are postponed. In this view of the matter, the Election Tribunal had not committed any illegality in postponing the by-elections till the disposal of the election petition pending before it.
8. The cases cited by the learned counsel for the petitioner are inapplicable to the facts of the present case. In the case of Muhammad Yousaf Khattak, referred to above, the Court had only held that it was not possessed with the powers of granting any stay order because the statute creating the Special Appellate Jurisdiction of the High Court did not confer upon it the power to grant an injunction which had empowered the Tribunal only to exercise powers of a Civil Court under the Civil Procedure Code. The Court thus, impliedly held that the said powers could be exercised by the Tribunal. In Col. (R.) Mukhtiar Hussain's case, (ibid), the Honourable Supreme Court refused to restrain the respondent to take oath as Member of the Senate, whose election had been duly notified by the Election Commission of Pakistan, as to do so would have deprived the electorate representation in the Senate. In the case before us, no such inconvenience would be caused as the Ordinance provides for officiating Zila Nazim till the election of the new Nazim through by-elections.
Again in the case of Muhammad Abdullah Tahir, referred to above, interim relief was declined as that would have amounted to the grant of relief in the main election petition. In none of the cases cited by the learned counsel for the petitioner, the Court was confronted with the situation where the holding of by-election would have rendered the election petition before the Election Tribunal infructuous. Such a situation has probably arisen for the first time as the two returned candidates were elected as a team out of which one has resigned and the other is still functioning as Naib- Nazim.
9. In the light of the above discussion, we do not consider that any case has been made out for interference with the impugned order of the Election Tribunal. Consequently, the writ petition is dismissed in Iimine. However, the Election Tribunal is directed to dispose of the election petition within two months.