RAJA FAYYAZ AHMAD, C.J.--In this Constitutional petition order dated 29-10-2002 passed by the worthy Member, Election Commission of Pakistan (Justice Ahmed Khan Lashari) in Petition No,1- Q/2002 in exercise of the powers delegated to him by the Election Commission of Pakistan and Notification dated 30-10-2002 issued by the respondent No,1 pursuant to the aforesaid order have been assailed whereby the Notification No,F.2(41)12002-CORD dated 19-10-2002 has been restored to the extent of re-polling at two polling stations i,e, Primary School Killi Akbar Khan and Primary School Killi Akhtar Muhammad of NA-263 Loralai and for holding of the re-polls at the above mentioned two polling stations to be re-notified by the Secretary, Election Commission of Pakistan.
2. The precise facts of the case are that the private respondents including the petitioner contested the general election held on 10-10-2002 from NA-263 Loralai and as per unofficial results communicated by the District Coordination Officer, Loralai/Returning Officer, from NA-263 the petitioner and the other contesting candidates secured the following number of votes, respectively shown against their names:- (1)Mr. Azam Jan, Advocate 322 (2)Sardar Sikandar Hayat Khan Jogezai12910 (3)Sardar Muhammad Israr Tereen344 (4)Sardar Yaqoob Khan Nasir 20778 (5)Mr. Sher Afghan Luni 223 (6)Mr. Muhammad Shafi Khetran 1290 (7)Maulana Ameer Zaman Bukhari18556 (8)Mir Baz Muhammad Khan Khetran14724 (9)Mir Shah Jehan Khetran 506 (10)Mir Tariq Mehmood Khan Khetran7222" Besides, Returning Officer NA-263 Loralai vide his Letter No,250-54 dated 10-10-2002 reported that certain irregularities were committed at two polling stations of constituencies namely Primary School Akhtar Muhammad and Primary School Killi Akbar Khan and during course of polling ballot papers were also snatched from the polling staff of these polling stations. On receipt of such report the Election Commission of Pakistan/respondent No,1 passed order in the following terms:-- The Commission after considering the reports and available record found that there were 2409 voters assigned to the said two Polling Stations and that this number could materially affect the overall result of the constituencies. Now therefore, in exercise of the powers under section 27 of the Representation of the People Act, 1976 read with Article 6 of the Election Commission Order, 2002 the Election Commission is pleased to direct that in view of grave irregularities at the said two Polling Stations re-poll shall be held on two polling stations namely Primary School Killi Akbar Khan and the Primary School Killi Akhtar Muhammad of. Constitutency No, NA-263, Loralai and PB-14, Loralai-I. The date of re-poll shall be notified by the Secretary, Election Commission accordingly."
3. The petitioner being one of the contesting candidates from the constituency submitted an application to the Election Commission of Pakistan that in fact serious irregularities were committed at 14 polling stations including the above mentioned polling stations,. The respondent No,1 after' having considered the complaint so made by the petitioners (Maulana Ameer Zaman) appointed Ch. Qamar Zaman, Joint Provincial Election Commissioner, Balochistan as Inquiry Officer on 19-10-2002 to hold inquiry into the grievance of the petitioner after issuance of notices to the contesting candidates and simultaneously the order dated 11-10-2002 earlier passed by the Commission referred to above was held in abeyance. After notice to the contesting candidates and hearing the parties concerned besides the statements of the concerned Presiding Officers of the 14 polling stations and the Returning Officer concerned were recorded and report was submitted by the Inquiry Officer to the Election Commission of Pakistan on 24-10-2002 to the effect that the allegations of gross irregularities at 14 polling stations were found to be baseless and unfounded except in respect of two polling stations i,e, Primary School Akhtar Muhammad and Primary School Killi Akbar Khan in respect whereof report was earlier submitted to the Election Commission by the Returning Officer.
' The learned Member, Election Commission of Pakistan in exercise of delegated authority after notice to the parties and all concerned, and; hearing them vide order impugned herein concluded that the petitioner failed to prove the allegation of rigging at 14 Polling Stations except the above said polling stations. Furthermore, it was specifically observed in the impugned order that during the inquiry earlier conducted by the Joint Provincial Election Commissioner, statements of Presiding.Officers of the concerned polling stations, contesting candidates and the Returning Officer were recorded the light whereof the said Inquiry Officer found and observed that the polling at all the polling stations except the two polling stations noted above remained peaceful and uninterrupted, consequently; the learned Member, Election Commission of Pakistan in the light of the entire material referred to above and the inquiry report as it appears from the impugned order, and taking into consideration the submissions put forth by the parties and by Mr. H. Shakil Ahmed, the learned counsel for the contesting candidate Mr. Yaqoob Nasir and the learned Dy.A.-G.; concluded that the allegations of rigging and malpractices in the polling process except two polling stations are baseless and unfounded. Consequently; the learned Member, Election Commission of Pakistan vide impugned order restored the earlier notification for holding of re-poll at two polling stations namely Primary School Akhtar Muhammad and Primary School Killi Akbar Khan. Pursuance to which in view of the direction as contained in the said order election schedule has been announced for the said two polling stations stated to be held on 2-11-2002.
4. Mr. Kamran Murtaza, the learned counsel for the petitioner has been heard at length. He strenuously contended that at 14 poling stations mentioned in the impugned order inclusive of the two polling stations namely Primary School Akhtar Muhammad and Primary School Killi Akbar Khan gross irregularities and rigging during the polling were committed and apprehending the same well within time, the Election Commission of Pakistan and other concerned prior to the Polls, complaints and applications were submitted and in support thereof he made reference to the contents of the complaint/application dated 3-10-2002 and with the view to achieve the required objectives of rigging at the polling stations, a number of polling officers of the polling stations appointed earlier were withdrawn by the Returning Officer and instead the other officers were appointed in order to extend favour to the rival candidates which eventually affected the polls to be fair, transparent and independent. Further the learned counsel argued that during course of inquiry initially conducted by the Joint Provincial Election Commissioner, Balochistan and the hearing of the matter subsequently by the learned Member, Election Commission of Pakistan, no opportunity was afforded to the petitioner to substantiate the allegation of rigging at 14 polling stations by producing evidence, although; sufficient material was available with the petitioner to prove the same, which consequently; rendered the inquiry report, impugned order and the Notification as illegal, void and without jurisdiction. To supplement his contention Mr. Kamran Murtaza submitted that he can produce the material even before this Court to satisfy that the petitioner was deprived by the aforesaid forums from establishing the allegations of rigging and commission of gross illegalities during the polls. Further the learned counsel without prejudice to his above-noted contentions submitted that reasonable time for holding . Of poll at the said two polling stations should have been afforded by the respondent No,1 enabling the electors and the candidates in all fairness as according to him a number of registered voters of the said two polling stations have left to other areas of the Province for their livelihood and it will be difficult for the candidates to approach and contact them for casting of votes on the schedule date i,e, 2-11-2002 at the two polling stations.
5. We have considered the contentions put forth on behalf of the petitioner by his learned counsel in the light of the documents annexed with the memo. Of Constitutional petition, the inquiry report submitted to the respondent No,1 by the Joint Provincial Election Commissioner and the impugned order, which have been gone through carefully. It may be noted that copy of the impugned Notification issued by the respondent No,1 pursuant to the order passed by the learned Member, Election Commission of Pakistan has not been appended with the memo. Of petition. Perusal of the inquiry report and the impugned order shows that at no stage any material in support of the allegations regarding rigging and commission of gross irregularities at the 14 polling stations was produced by the petitioner, whose statement was also recorded by the Inquiry Officer nor , any application appears to have been submitted by the petitioner to the Inquiry Officer, showing his intention for production of the material and in absence of any material available with the Inquiry Officer or with the learned Member, Election Commission of Pakistan, it cannot be held. Or concluded that the inquiry report and the impugned order was not based on evidence, rather: the admitted position as it stands is that on the basis of available evidence i,e, report of the Returning Officer, statements of the contesting candidates and the Presiding Officers of the constituency relating to the polling stations recorded during the course of inquiry and report submitted to the respondent No,1 by the Joint Provincial Election Commissioner in the light whereof the Inquiry Officer reported that gross irregularities during the polls were committed at the two polling stations namely Primary School Akhtar Muhammad and Primary School Killi Akbar Khan, and in absence of any evidence or supportive material produced before the Inquiry Officer there was no justification for the learned Inquiry Officer to have had held that rigging had taken place at 14 polling stations, however, it may be observed that the learned Deputy Attorney-General rightly contended before the learned Member, Election Commission of Pakistan that at an appropriate stage the petitioner can have recourse for the redressal of his grievance by filing Election Petition before the Election Tribunal within the purview of section 52 of the Representation of the People Act, 1976, moreover the petitioner, as it appears from the available documents that he did not raise any objection as regards the inquiry proceedings conducted by the Joint Provincial Election Commissioner, Balochistan by filing any complaint or representation to the respondent No,1 that reasonable opportunity for production of evidence to substantiate the allegations was not afforded to him nor any such question was urged or agitated before the learned Member, Election Commission of Pakistan, hence in view of the material available with the aforesaid forums it.Cannot be said that the report submitted by the Inquiry Officer and the impugned order passed by the learned Member suffers from any legal infirmity or impropriety so as to call for any interference by this Court in the exercise of writ jurisdiction. Also, u: learned counsel for the petitioner in view of the material available with the aforesaid forums failed to point out any legal defect or jurisdictional error in the inquiry report and the impugned order, consequently the relief prayed for in the Constitutional petition for holding of re-poll at 14 polling stations, for want of material available or produced before the said forums cannot be granted.
6. Adverting to the submission for the- alternate relief, we are of the considered view *at the same can also not be granted for the simple reason that the discretion vested with the respondent No,1 for providing schedule for holding of the re-poll, at the two polling stations in exercise of the powers vesting in it by the relevant provisions of the statute, cannot be interfered with while exercising powers in writ jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 unless it is proved to the satisfaction of the Court that the powers, so exercised by the Election Commission are in violation of the law, not vested in it or that the same have not been exercised in accordance with the relevant provisions of the statute or that the same suffer from unreasonableness and are arbitrary, fanciful and perverse or substantially motivated by mala fide, which, no doubt, are lacking in the instant case, consequently the petitioner is also not entitled for the alternate relief as well. Thus, in view of the above reasons this Constitutional petition being devoid of any substance, was dismissed in limine, and these are the reasons of our short order dated 31-10-2002.