RAJA FAYYAZ AHMED, C.J.---The following reliefs have been claimed in this Constitutional petition:-- "It is accordingly respectfully prayed that it may be declared:
(a) That the order dated 11-10-2002 and notification dated 19-10-2002 issued by the Election Commission of Pakistan ate unconstitutional, mala fides, void in excess of authority, discriminatory and of no legal effect.
(b) That the petitioners having secured highest number of votes from the undisputed polling stations are liable to be declared as returned candidates and the commission be directed to declare them as such.
(c) Alternatively, the Commission be directed to hold re-poll only in the disputed polling stations instead of entire constituencies of NA-262 Killa Abdullah, PB-12 Killa Abdullah-2 and PB-13 Killa Abdullah-3.
(d) Pending disposal of this petition, the operation of the order dated 11-10-2002 and notification dated 19-10-2002 be suspended.
(e) Any other relief as may be deemed fit and proper in the circumstances of the case may also be awarded."
Also in Constitutional Petition No.551 of 2002 in respect of the constituency No.262-Killa Abdullah order dated 11-10-2002 passed by the respondent No.1 and the Notification dated 19-10-2002 issued by the Election Commission of Pakistan have been assailed seeking relief of declaration that the same be declared as illegal and having been passed in excess of jurisdiction and consequently; of no legal effect with the further relief that this Court may declare the result of NA-262 Killa Abdullah as per consolidated statement of counts submitted to the respondent No.1 by the Returning Officer of NA-262 Killa Abdullah (respondent No.2) and any other relief, to which the petitioner Maulvi Muhammad Hanif may be found entitled in the circumstance of the case. Whereas; in Constitutional Petition No.540 of 2002 petitioner Ghulam Sarwar Khan has assailed the common order passed by the Election Commission of Pakistan dated 11-10-2002 for being void, illegal and without jurisdiction including the Notification dated 19-10-2002 issued by the respondent No. 1 in respect of re-election of PB-12. Killa Abdullah-II with the further reliefs claimed therein as under:-- "(i.e) Direct the respondents Nos.2 and 3 to complete the counting of remaining four polling stations, and thereafter announce the unofficial result of PB-12 Killa Abdullah-2.
(i.e) Direct the respondent No.1 to declare the official result of PB-12 Killa Abdullah-2 on the basis of result already compiled on Form-XIV regarding forty-three polling stations as well as on the basis of result of the remaining four polling stations.
(v) Restrain the respondent No.1 from conducting re-election in the constituency i.e. (PB-12 Killa Abdullah-2).
(vi) Any other relief which this honourable Court may deem fit and proper also be awarded to the petitioner. "
2. Since in all the three Constitutional petitions i.e. C.P.No.546 of 2002, C.P. No.551 of 2002 and C.P.
No.540 of 2002 a common order passed by the respondent No. 1 (Election Commission of Pakistan) on 11-10---2002 pursuant to which impugned Notification dated 19-10-2002 was issued, has been assailed, out of which; C.P.No.546 of 2002 relates to constituencies NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III, whereas; the other C.Ps. i.e. 551 of 2002 and 540 of 2002 respectively relate to constituencies NA-262 Killa Abdullah and PB-12 Killa Abdullah-II in respect whereof the abovesaid common order and notification have been passed and issued by the respondent No. 1, therefore, the same are disposed of collectively, by this order.
3. The brief facts of the case are that the petitioner Mehmood Khan Achakzai, Chairman of Pakistan Pashtoonkhawa Milli Awami Party (PPMAP) and respondents Nos.6 to 11 namely Bismillah Khan Kakar, Abdul Khaliq, Abdul Aziz, Lala Jan, Muhammad Ismail and Maulvi Muhammad Hanif (petitioner in C.P.No.551 of 2002) contested general elections held on 10-10-2002 from the constituency NA-262 Killa Abdullah which comprises of the Baluchistan Provincial Assembly constituencies i.e. PB-11 Killa Abdullah-1, PB-12 Killa Abdullah consists of 182 Polling Stations, whereas; PB-12 Killa Abdullah-II comprises of 47 Polling Stations and for PB--13 Killa Abdullah-III, 65 Polling Stations as per election scheme.
Petitioner No.3 Naseem Khan Turyalai, in C.P. No.546 of 2002 and respondents Nos. 18 to 23 namely Ameer Jan, Dr. Wali Jan, Abdul Ghaffar, Ghulam Sarwar (petitioner in C.P. No.540), Muhammad Usman and Maulvi Abdullah contested election from PB-12 Killa Abdullah-II.
Petitioner No.4 Abdul Majeed Khan Achakzai, in C.P. No.546 of 2002 and respondents Nos.24 to 31 namely Ameer Jan Kakar, Haji Wali Muhammad, Abdul Sadiq, Kalimullah Khan, Muhammad Din Kakar, Muhammad Nawaz, Maulvi Ghulam Haider and Muhammad Naseem contested election from PB-13 Killa Abdullah-III.
4. The Election Commission of Pakistan/respondent No.1 vide short order dated 11-10-2002 recorded its satisfaction in the terms that grave illegalities, violation of provisions of Representation of the People Act, 1976 and the Rules made thereunder have since taken place during the polls of constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III, which thus; to be declared void, therefore, in exercise of powers conferred on it under sections 103-AA(1) and (3), 104 of the Representation of the People Act, 1976 read with Article 6 of the Election Commission Order, 2002 and all other powers enabling it, in that behalf, the respondent No.1 declared the polls in the abovesaid constituencies to be void and called upon the electors of the said constituencies to elect the persons to fill in the seats for these constituencies on 22-11-2002, accordingly; the Secretary, Election Commission was directed to issue the Notification for holding of the polls of the said constituencies by publication of Notification in the official Gazette.
4-A. The contesting candidates namely Mehmood Khan Achakzai from NA-262 Killa Abdullah, Dr. Hamid Khan Achakzai from PB-11 Killa Abdullah-I, Naseem Turyali from PB-12 Killa Abdullah-II and Abdul Majeed Khan Achakzai from PB-13 Killa Abdullah-III stated to have submitted review application against the short order dated 11-10-2002 to the Election Commission of Pakistan seeking for review of the order on the grounds mentioned therein in respect of the aforesaid constituencies, however, in respect of NA-262 Killa Abdullah it was admitted in the relevant paragraph of the review application that in 12 polling stations by force polling staff were held hostage and the ballot boxes were taken over by the supporters of the rival candidates and the matter was reported to the concerned quarters including the polling staff of the polling stations, Returning Officer and to respondent No. 1 similar complaint was made in respect of the nine polling stations of PB-12 Killa Abdullah-II and specifically it was contended in the review application that polling was interrupted by use of violence in respect of nine polling stations and eventually control of these polling stations was taken over by the miscreants and during the violence Mst. Nek Bibi, Polling Agent of PPMAP was killed by means of firing and two other polling agents sustained bullet wounds and a formal F.I.R. Was also registered. Also the election staff including the Returning Officer, who visited the Polling Stations, was subjected to firing and were made hostage. As regards the polling of the constituency PB-13 Killa Abdullah-III, it was alleged in the review application that out of 65 Polling Stations, polling could not be held at 3 Polling Stations i.e. No.35 (High School Abdul Rehmanzai), No.37 (Shahmir) and No.40 (Lal Muhammad).
It appears that the Election Commission of Pakistan as regards the Review Application is concerned, if received, remained undecided.
5. Perusal of the reasons recorded by the respondent No. 1 for the short order dated 11-10-2002 shows that reports were transmitted by the District Returning Officer, Returning Officer and Provincial Election Commissioner, Baluchistan in respect of the abovesaid constituencies to the respondent No. 1. The Returning Officer of the said constituencies vide his memorandum No.387 of 2002 dated 11-10-2002 informed that the supports of the various candidates contesting election, from PB-12 comprising of 47 Polling Stations, numbering 30/40 equipped with arms in the shape of groups, took the polling staff of 14 polling stations as hostage, who took over possession of the polling material on gunpoint and cast bogus votes as well as on gunpoint got prepared statements of the counts and in such behalf the Returning Officer was also informed in writing by the Presiding Officers, whereas; in respect of PB-13, the Presiding Officers have informed to the Returning Officer in writing that at 3 polling stations they had been taken on gunpoint and on a large scale bogus votes were cast/ballets were stamped at that 3 polling stations out of 65 polling stations of the constituency.
As regards PB-12 vide letter No.386/2002 dated 11-10-2002 the Returning Officer informed the Election Commission of Pakistan that till 1-00 p.m. Polling continued at the polling stations peacefully, but thereafter, intermittently disturbance by way of riots, firing and incidents of stone pelting abruptly occurred and the supporters of candidates of various political parties in the shape of armed groups one after the other raided the polling stations, but the Levies and the Personnel of Frontier Corps deployed there and the patrolling personnel failed to control the situation, with the result that the mob besieged 14 polling stations and took the polling staff of these polling stations as hostage and cast bogus votes in favour of the candidates of their choice, inasmuch as; the Presiding Officer was also beaten-up. Also, it was reported by the Returning Officer that the deployed forces were also taken on gunpoint and in the late hours of the night the remaining staff of the 14 polling stations extremely perplexed and terrified reached to the headquarter. The Presiding Officers laid information in writing to such effect to the Returning Officer, regarding the open terrorist activities and the rigging carried out at these polling stations by the supporters of the candidates. The names and numbers of 14 polling stations have been specified in the report submitted by the Returning Officer to the respondent. No. 1. In the light of these facts, the Returning Officer noted that count of polls in respect of the aforesaid 14 polling stations has not been prepared except of 33 polling stations of PB-12 with the request that in view of the large scale rigging, carried out at 14 polling stations, the poll may be cancelled. As regards the 33 polling stations of the said constituency in view of the statement of counts prepared by the Returning Officer, Ghulam Sarwar secured 5665 votes leading at position No.1, whereas; on the next to him candidate Muhammad Naseem secured second position by securing 4996 votes.
7. Similar report was submitted to the respondent No. 1 by the District Returning Officer, Killa Abdullah, Chaman and it was observed therein that as a result of rigging at vast scale etc.; the whole process of polls in PB-12 and NA-262 was on the mercy of the outsiders at 14 polling stations of PB-12 Killa Abdullah-II and NA-262 Killa Abdullah. It may be noted that copy of the reports of the District Returning Officer and the Presiding Officers have been filed and supplied to the parties by the learned Deputy Attorney--General. Also, extract of the same including report of DRO etc. Has been reproduced to an extent in the detailed reasons recorded by the respondent No. 1. Also, it is pertinent to note that the aforesaid communication transmitted to the Election Commission of Pakistan by the District Returning Officer appears to have been based on the reports of the Presiding Officers and the Returning Officer. In view of the above noted reports, the respondent No. 1 directed the Secretary, Election Commission of Pakistan to conduct a detailed inquiry in compliance whereof report was submitted to the Election Commission relevant extract whereof has been reproduced in the details reasons recorded for the short order by the Election Commission of Pakistan on 12-10-2002.
8. After having perused the report and the material available with the respondent No. 1, the Election Commission of Pakistan requested one of its Members (Mr. Justice Ahmed Khan Lashari) to peruse the available material and after speaking to the Returning Officer concerned informed the Commission, as to the result of his summary inquiry, consequently; the learned Member, of the Commission did the needful and expressed his views that in the facts and circumstances of the case, the polls in the constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III be declared void. Thereafter, the entire material available on record was scrutinized by the Election Commission of Pakistan and in view of the report submitted to it by the Secretary, Election Commission of Pakistan, as well as views expressed by the learned Member, Election Commission and from facts apparent on the face of the record (as per detailed reasons for the short order) as well as in view of the peculiar facts and circumstances of the case, the Commission recorded its satisfaction that by reasons of grave illegalities/violation of the provisions of Representation of the People Act, 1976 and the Rules made thereunder, the poll in the abovesaid constituencies are to be declared void and illegal, consequently; in exercise of the powers conferred on it as abovesaid, the poll in the abovesaid constituencies were declared to be void and the electors of these constituencies have been called upon to elect the persons to fill the seats for these constituencies on 22-11-2002 with the further direction to the Secretary, Election Commission of Pakistan to issue notification, accordingly by publication of the programme in the official Gazette for holding of poll.
9. Before commencing with his arguments Mr. H. Shakil Ahmed pointed out that result of poll in respect of PB-11 Killa Abdullah-I has since been declared by the Election Commission of Pakistan, therefore, Constitutional Petition No.546 of 2002 to such extent has become infructuous and the petitioner No.2 Dr. Hamid Khan Achakzai and the respondents Nos. 12 to 17 be accordingly deleted from the title of the memo. Of the petition. This position has been confirmed by the Deputy Attorney-General, consequently; the Constitutional petition having become infructuous as regards the PB--11 Killa Abdullah-I, is disposed of accordingly and the names of the concerned parties have been deleted from the title of the memo. Of petition.
10. Mr. H. Shakil Ahmed, Advocate contended and raised the following points:-- A. The petitioner Mehmood Khan Achakzai at the polls for NA-262 Killa Abdullah secured highest number of votes numbering 33230, whereas; next higher number of votes were polled in favour of respondent Maulvi Muhammad Hanif i.e. 23949 and the respondent Bismillah Khan Kakar being the third in the order of merit secured 17976 votes and as per statements of counts issued to petitioner Mehmood Khan Achakzai by the Presiding Officers of the Polling Stations, was to be declared as returned candidate but illegally and contrary to the unofficial results supplied to the Polling Agents of the said petitioner, result of the constituency was withheld by the respondent No.1 and without any legal or factual basis the respondent No.1 declared the poll of NA-262 as void vide impugned order, further directing that poll to be held afresh of the said constituency. The learned counsel however, in view of the contents of review application, statedly submitted by the petitioner to the respondent No. 1, reports forwarded to the Election Commission of Pakistan by the Returning Officer and the inquiry conducted under the direction of Election Commission of Pakistan, submitted that the impugned order and Notification are liable to be set aside as by no stretch in view of the undisputed material available with the Election Commission of Pakistan holding of re-poll in the entire constituency could not have been ordered. According to Mr. H. Shakil Ahmed at best in view of the dictum laid down by the honourable apex Court in the case of Behram Khan Achakzai v.
Abdul Hameed Khan Achakzai and others PLD 1990 SC 352 re-poll could only have been ordered in respect of the Polling Stations numbering 12 where allegedly vast scale rigging, grave irregularities etc: were reportedly committed, but in no case poll for the entire constituency can be directed to be re-held, hence; the impugned order and the Notification being illegal, void and mala fide be set aside and declared to be of no legal effect.
B. As regards PB-13 Killa Abdullah-III, Mr. H. Shakil Ahmed contended that petitioner No.4 (Abdul Majeed Khan) at the polls secured 15312 votes whereas; 9087 votes were cast in favour of the candidate namely Haji Wali Muhammad in the order of merit while the third candidate respondent Ghulam Haider secured 7287 votes, therefore, even if be assumed that grave illegalities and rigging was carried out/committed at three polling stations i.e. Killi Shah Mir, High School Killi Abdul Rehmanzai and Primary School Killi Lal Muhammad and the total number of registered votes of these polling stations numbering 5471 even if be counted in favour of the candidate next to him, who has secured 9087 votes in all the remaining polling stations of the constituency, cannot be declared successful as against the petitioner Abdul Majeed, therefore, in view of such undisputed position and number, of votes secured by the abovesaid candidates except the petitioner Abdul Majeed Khan no other candidate can be declared having secured highest number of votes, therefore, for such reason the impugned order and the Notification is liable to be struck down and necessary directions be issued to the respondent No.1 to announce the official result of PB-13, Killa Abdullah-III, in the light of the statement of counts of the constituency, submitted to the respondent No. 1 by the Returning Officer concerned. In a similar situation, according to the learned counsel, the Election Commission of Pakistan in respect of PB-14, Loralai-I declared the contesting candidate Sardar Masood Ali Khan as the returned candidate vide order dated 29-10-2002 passed in Petition No.01-Q of 2002 and copy' of the order in support of the contention has been placed on record and in this respect he also placed reliance on the above-quoted judgment of the honourable Supreme Court.
C. Same contention in respect of PB-12, Killa Abdullah-II noted in ground (A) above in view of the alternate plea, submitted that re-polling of the entire constituency is violative of the law and the material available with the Election Commission of Pakistan as regards the allegation of rigging and grave irregularities committed at the polling stations as per information of petitioner No.3 (Naseem Khan Turyali), however, he admitted that prima facie the material available with the respondent No.1 indicated that grave irregularities and rigging at vast scale was committed at 14 polling stations referred to in the impugned order and detailed reasons recorded by the respondent No.1, as such there being no adverse report as regards the polling carried out at the remaining polling stations of the constituency where the same was conducted peacefully and without any disturbance, did not necessitate for declaring the poll of the entire constituency as void, consequently; the impugned order and the Notification being illegal, mala fide and violative of the law resulted into frustrating the vote cast by the electors as per their Will and conscious, are liable to be set aside and appropriate consequential orders be passed.
11. M/s. Kamran Murtaza, (for respondents Maulvi Muhammad Hanif and Maulvi Abdullah) and Muhammad Qahir Shah (for respondents Bismillah Khan Kakar and Ghulam Sarwar Achakzai), Advocates after having gone through the detailed reasons recorded by the respondent No. 1 for the order dated I1-10-2002 and the reports submitted by the Returning Officer etc.; and in view of the above-quoted judgment of the honourable Supreme Court contended that re-poll of the entire constituency could not have been legally ordered, hence; the order and the Notification as having been passed in the abuse of the powers and authority, are liable to be set aside except that re-poll in respect of the polling stations on which the rigging was allegedly carried out can be ordered and the poll at the remaining polling stations carried out peacefully and in accordance with law cannot be disturbed.
12. Mr. Waseem Jadoon, Advocate for Maulvi Ghulam Haider submitted that the impugned Notification is unexceptionable in the given facts and circumstances of the case, which need not be interfered with.
13. The un-represented respondents respectively in Constitutional petitions No. 540 and 551 of 2002 namely Dr. Wali Jan Dakar and Abdul Aziz as well as they being respondents in Constitutional Petition No.546 of 2002 being present in the Court were informed that they can by themselves address the Court if they or either of them interested to make any submission, but they declined and stated that they are not interested to say anything.
14. Mr. Mujeeb Ahmed Hashmi, the learned counsel for respondents Ubaidullah, Amir Jan and Haji Wali Muhammad contended that statement of count annexed with the Constitutional petition and relied upon by the petitioners pertaining to the Polling Station No.53 (Abdullah Jan Takri) of PB-13, Killa Abdullah-III purportedly issued by the Presiding Officer concerned since did not contain the requisite certificate nor the same appears to have been prepared in the presence of the Polling Agents of the candidates as required under section 38 of the Representation of the People Act, 1976, therefore, no reliance can be placed on this document nor the statement of count of votes mentioned therein can be legally considered, which on exclusion has a direct effect on the overall result of count of the petitioner Abdul Majeed Khan in respect of all the Polling Stations except the three rigged polling stations, hence; on this score the relief prayed for in view of the reported judgment of the honourable Supreme Court in the case of Behram Khan Achakzai will not be applicable and thus, the impugned order and the Notification issued by the Election Commission shall be unexceptionable. He next submitted that since the petitioners have filed nomination papers for contesting the general election from the constituencies pursuant to the impugned Notification dated 19-10-2002 and they have been declared as validly nominated candidates from the concerned constituencies after the scrutiny of nomination papers, therefore, they are estopped by their conduct to challenge the impugned Notification and the order dated 11-10-2002 passed by the respondent No. 1 in the light whereof the impugned Notification was issued. The learned counsel further submitted that in view of the material and reports officially submitted to the respondent No.1 competently and in the lawful exercise of powers vesting in the Election Commission, the impugned order and the Notification has been issued. To elaborate this contention he made reference to the provisions of section 103-AA read with section 108 of the Representation of the People Act, 1976 as well as to the provisions of Article 6 of the Election Commission Order, 2002. The learned counsel further added that since the process of re-holding of the poll of the constituencies, is in full progress after completion of the required formalities and the same are to be held on 22-11- 2002, as per impugned Notification, therefore, the petitioners are not entitled for the discretionary relief. To supplement his view-point reliance has been placed on a reported judgment of the Election Tribunal passed in the Election Petitions Nos. 17 and 11 of 1997 in the case of Sardar Muhammad Abdullah Khan v. Sahibzada Muhammad Usman Abbasi and 4 others 1998 CLC 612.
Mr. H. Shakil Ahmed, Advocate in the light of contentions noted above made by Mr. Mujeeb Ahmed Hashmi submitted that the impugned order for re-holding of poll for the whose of constituencies i.e. NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III was not based on the material and reports available and transmitted to the respondent No. 1 and had it been so he would not have any grievance, but as grave irregularities and rigging at large scale as per material available with the Election Commission were reportedly committed at a specified number of polling stations of the constituencies of NA-262 Killa Abdullah and PB-12 Killa Abdullah-II, therefore, as per contention of Mr. Mujeeb Ahmed Hashmi, Advocate re-poll of these two constituencies ordered to be held is in violation of the law and its mandate, as at majority of the polling stations of the constituencies polling was made peacefully and as per prescribed procedure and the election scheme, whereas, in respect of PB-13 Killa Abdullah-III the reports and the material officially transmitted to the respondent No.1 pertained to only three polling stations and the consolidated statement of count officially sent by the Returning Officer concerned, lay valid and legal basis for determining the election results of the constituency, even if the total number of the registered votes of the rigged three polling stations are counted in favour of the runner-up candidate therefore, as regards this constituency, as already submitted by him re--polling of the rigged polling stations would even be futile. The learned counsel as regards the statement of count, copy whereof has been annexed with the memo. Of petition and objected to by Mr. Mujeeb Ahmed Hashmi, submitted without prejudice to his pleas, that this Court has to adjudge on the basis of material, reports and the consolidated statement of count transmitted to the Election Commission as to whether the impugned order/Notification was passed and issued lawfully and in the exercise of powers vesting in the Election Commission in accordance with the mandate of law or otherwise.
However, he explained that no certificate is required to be issued on the statement of count by the Presiding Officer nor it is essential that such statement to be made necessarily in presence of the Polling Agents of the candidates and contention to the contrary put forth on behalf of the candidate Haji Wali Muhammad, is devoid of any substance in view of provisions of section 38 of the Representation of the People Act, 1976. Mr. H. Shakil Ahmed vehemently argued that there can be no estoppel against a law by conduct, and; immediately on passing of the impugned order, the same was assailed by filing Constitutional petition, as in absence of any material available with the Election Commission in the misexercise of powers and the mandate of law it passed the impugned order and secondly; the availing of the right by the petitioners without knowing the eventual fate of their petition would not deprive them of such right from seeking the only available remedy merely because they filed there nomination papers for contesting the election from the constituencies pursuant to the impugned Notification.
15. Noorullah, respondent, who pursuant to the impugned Notification for the first time filed his nomination paper for contesting general election from PB-13 Killa Abdullah-III and declared as a validly nominated candidate, submitted that since earlier at a number of polling stations rigging at vast scale was made by the supporters of the political parties, therefore, the impugned Notification was properly and in accordance with law issued by the respondent No.1. He further submitted that in view of the past experience it is the duty of the Government to maintain law and order at the polling stations, so that the electors may exercise the right of vote freely, fairly and independently.
16. The learned Deputy Attorney---General seriously disputed the statement of counts in respect of NA-262 Killa Abdullah filed with the memo of petition by contending that no reliance can be placed on such document for the reasons that the same appears to have been privately prepared in view of the note of counts purportedly issued by the Presiding Officers, which also include statement of count in respect of the 17 polling stations, at which rigging at vast scale and grave illegalities during the poll were committed and on gunpoint statements of count were obtained, hence; the figures so shown in these documents being controversial and seriously disputed cannot be form valid and legal basis to hold that highest number of votes were secured by the petitioner Mehmood Khan Achakzai. On account of rigging and gross illegalities committed during the polling at 17 polling stations of NA-262 Killa Abdullah, the Presiding Officers withheld the results and as regards the remaining polling stations unofficial statement of count was issued and communicated to the respondent No.1 by the concerned Returning Officer and copy of these documents duly attested by the Officer of the office of Provincial Election Commissioner also containing consolidated unofficial statement of count of NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB-13 Killa Abdullah-III have been filed on record through the Miscellaneous Application and the same were supplied to the other side as well, beforehand. As regards the alternate plea put forth by Mr. H. Shakil Ahmed, Advocate in view of the reported judgment of the honourable Apex Court passed in the case of Haji Behram Khan Achakzai, he expressed that re-poll can be competently ordered by the respondent No. 1 at the polling stations in respect of which the material was available with the Election Commission of Pakistan, abundantly indicating that at a large scale gross irregularities and rigging was carried out at the polling stations, referred to in the impugned order, however, the learned Deputy Attorney-General submitted that in appropriate cases re-poll of the entire constituency can also be directed by the Election Commission.
The learned Deputy Attorney---General in answer to the contention made by Mr. Mujeeb Ahmed Hashmi, Advocate contended that statement of count annexed with the memo. Of petition pertaining to Polling Station No.53 (Abdullah Jan Takri) of PB-13 Killa Abdullah-III disputed and seriously objected to by Mr. Mujeeb Ahmed Hashmi, Advocate, pointed out that the same was not disputed and challenged in the counter-affidavit filed by the candidate Haji Wali Muhammad wherein it was alleged that the rigging had taken place at Polling Stations Nos. 162 to 173, therefore, the contention so raised in respect of the statement of count filed with the memo. Of petition is devoid of any substance. The learned Deputy Attorney---General, however, explained that as per material available and transmitted to the Election Commission by the Returning Officer concerned including inquiry reports etc. Polling was peacefully conducted and carried out at Polling Station No.53 (Abdullah Jan Takri) of PB-12 Killa Abdullah-II in accordance with law and the procedure, hence; the statement of count prepared by the Presiding Officer of the said polling station and transmitted to the concerned quarter including the consolidated statement of count sent by the Returning Officer, cannot be independently questioned in the instant proceedings. The learned Deputy Attorney-General submitted that there can be no estoppel against law and the maintainability of the Constitutional petition on such score in the given facts and circumstances of the case cannot be questioned. He placed reliance on the reported judgment of the Hon'ble Supreme Court i.e. 1992 SCM R 1652 (M/s. Army Welfare Sugar Mills Ltd. And others v. Federation of Pakistan and others).
17. Mr. Salahuddin Mengal, the learned A.-G. Supported the views expressed by the learned Deputy Attorney-General.
18. The tabulated analysis of existing results of NA-262 Killa Abdullah, PB-12 Killa Abdullah-II and PB- 13 Killa Abdullah---III, prepared by the Provincial Election Commission office in view of the statement of counts submitted by the Returning Officer of constituencies with other necessary particulars is as under:-- ANALYSIS OF EXISTING RESULTS OF NA-262 KILLA ABDULLAH, PB-12 KILLA ABDULLAH-II AND PB-13 KILLA ABDULLAH-III NAME of constituencyTotal votersNumber of poling stationsNumber of polling stations riggedNumber of remaining polling stations 1 2 3 4 5 NA-262 Killa Abdullah265538 182 17 165 PB-12 Killa Abdullah-II75286 47 14 33 PB-13 Killa Abdullah-III93289 65 3 62
19. We have considered the contentions noted above in the light of the documents annexed with the memo. Of Constitutional petitions and those filed by the learned Deputy Attorney-General. Also, the short order dated 11-10-2002 and the detailed reasons recorded by the respondent No.1 dated 12-10-2002 have been carefully and minutely perused including the impugned Notification. Also, the reports forwarded to the Election Commission by the Returning Officer of the concerned constituency and the report submitted by the Provincial Election Commissioner have been considered and perused, of which reference as regards material particulars has been made hereinabove in para.No.5 supra. Reported judgments of the honourable Apex Court i.e. PLD 1990 SC 352 and 1991 SCM R 2033 (Munshi Muhammad v. Election Commission of Pakistan and 7 others) have been considered. As regards the contention of Mr. H. Shakil Ahmed that since the petitioner Mehmood Khan Achakzai secured highest number of votes from NA-262 in the general election in view of the statement of counts issued by the Presiding Officers on the basis whereof a consolidated statement has been prepared by the said petitioner indicating that he had secured highest number of votes from the constituency, therefore, he be directed to be declared as returned candidate officially, but such position has been seriously controverted and disputed by the learned Deputy Attorney-General, who also appeared for respondent No. 1. In the light of the reports submitted by the Returning Officer and the Presiding Officers of the rigged polling stations that besides the rigging having been made by the miscreants at 17 polling stations referred to in the impugned orders and the reports as well as; on gunpoint statements of count of these polling stations were also obtained, therefore, the fact regarding highest number of votes secured by petitioner Mehmood Khan Achakzai being substantially and seriously disputed by official record, cannot be relied upon, moreover, it will be noteworthy to mention here that the petitioner has annexed copy of review petition statedly submitted by him to the Election Commission which indicates that at the given polling stations rigging and grave irregularities were committed besides a lady polling agent of the said petitioner was also done to death by means of firing as well as instances of other acts of violence were also quoted, hence, in such view of the matter as per his own case no reliance can be placed on this score as well, on the statement of count, on which reliance has been placed by the petitioner. Furthermore, the figures as to the highest number of votes secured by the petitioner from the said constituency has not been taken from the statement of count of votes unofficially issued and intimated to the Returning Officer concerned, which excluded the number of votes cast at the rigged polling stations and thus, statement of count not issued by the Returning Officer and; the Presiding Officers of such polling stations also disowned the statement of counts of these polling stations (rigged polling station) as according to them the same were obtained on gunpoint by the miscreants cannot be taken to include in the aggregate count result in faovur of any contesting candidate. We; understand that most probably for these reasons and the material available including the reports forwarded to the Election Commission by the Returning Officer that an alternate plea in the light of dictum laid down by the honourable Supreme Court in the case of Haji Behram Khan, has been taken and it was contended by Mr. H.
Shakil Ahmed that at best in view of the material available with respondent No. 1 re-poll in respect of the rigged polling stations could have been ordered by the Election Commission instead of holding of re-poll of the entire constituency i.e. NA-2621 Killa Abdullah and PB-12 Killa Abdullah-II.
Adverting to the plea of Mr. Mujeeb Ahmed Hashmi, Advocate that the doctrine/Rule of Estoppel by conduct since operates against the petitioners, therefore, the Constitutional petitions are not maintainable or the reason that pursuance to the impugned Notification the petitioners have filed nomination papers for contesting election from the constituencies i.e. NA-262 Killa Abdullah, PB-12, Killa Abdullah-II and PB-- 13 Killa Abdullah-III and secondly, since the election process for contesting the election by the candidates to be held on 22-11-2002 has been completed and the electors have been fully mobilized, therefore, the course of election need not be hampered by granting discretionary relief nor in such view of the matter the petitioners can be found entitled for the reliefs. It is worthwhile to note that pursuant to the impugned short order dated 11-10-2002, and the detailed reasons recorded on the next following day, the impugned Notification was issued on 19-10-2002 whereby re-holding of the poll for the above said constituencies has been scheduled to be held on 22-11-2002 was to commence with the tiling of the nomination papers with effect from 21-10-2002 to 22-10-2002 etc. The Constitutional petition No.546 of 2002 was filed on 21-10-2002 by Mehmood Khan Achakzai and others contesting elections from the above said constituencies, whereas: Constitutional petition No.551 was filed by petitioner Maulvi Muhammad Hanif on 24-10- 2002 and Constitutional Petition No.540 of 2002 was filed by petitioner Ghulam Sarwar Khan on 17- 10-2002 (prior to the issuance of the impugned Notification and in these three Constitutional Petitions by means of separate Miscellaneous Applications suspension of the impugned order dated 11-10-2002 as well as the impugned Notification was also sought for. Notice or the Miscellaneous Applications were issued to the respondent as well as to learned Deputy Attorney- General, however; the same remained un-disposed of for the reasons that keeping in view the urgency of the matter as per the impugned Notification it was deemed proper to hear the parties instead of granting or refusing the interim relief and secondly; the conduct of the petitioners relating to the filing of nomination papers pursuant to the impugned Notification prior to the eventual fate of this petition, obviously; in our view would not deprive them to pursue available remedy already availed by them nor doctrine of estoppel by conduct, as such will be applicable to their case, thirdly; since the impugned order and the Notification issues pursuant to it has been challenged in the Constitutional petitions as having been passed and issued in absence of any report and material available with the Election Commission and the exercise of powers vesting in it being in violation of the mandate and relevant provisions of law as well as to the dictum laid down by the honourable Apex Court in the case of Behram Khan Achakzai PLD 1990 SC 352; therefore, the consequential acts taken, done and performed pursuant to the impugned order and Notification will not result in depriving the petitioners, who also filed nomination papers seeking for appropriate relief by invoking Constitutional jurisdiction of the High Court. Consequently; the Rule of Estoppel by conduct will not operate against law 1983 SCM R 125; 1992 SCM R 883 (Supreme Court of Pakistan) ref. Also it has been held in reported judgment i.e. PLD 1987 SC (AJ&K 65 in the. Case of Abrar Hussain Shah and others v. The State that there can be no estoppel on the point of law and likewise estoppel cannot operate to prevent or hinder the performance of statutory duty. Reverting to the second limb of argument advanced by Mr. Mujeeb Ahmed Hashmi about the hampering of the process of re-polling of the constituencies and dis-entitlement of the petitioners to the discretionary relief, we may observe that the same is also devoid o any substance for the above mentioned reasons as well as in view of the fact that no general election for the seats throughout the country or the Province are to be held pursuant to the impugned Notification, rather; re-poll of the three constituencies have been ordered, hence; the underlying principle attempted to be imported by the learned counsel lacks necessary elements to contribute to his views. The case--- law cited by him has no application in the instant case.
Next it was argued by Mr. Mujeeb Ahmed Hashmi, Advocate that the statement of count purportedly issued by the Presiding Officer of the polling station No.53 (Abdullah Jan Takri) pertaining to the PB-13, Killa Abdullah-III, annexed with the memo of petition as contended by him cannot be acted upon for want of requisite certificate of the Presiding officer nor prepared in presence of the Polling Agents of the candidates; it may be observed that quite satisfactory and convincing answer to the contention has been given by Deputy Attorney-General in vies of the provisions of section 38 of the Representation of the People Act, 1976, who also did not dispute the same. Be that as it may, it may be noted that we; have not considered and looked into any other document or material which was not available with the Election Commission except the one officially transmitted to it by the Returning Officers, Provincial Election Commissioner, inquiry reports etc. Filed on record by the learned Deputy Attorney-General duly referred to in the detailed reasons recorded by the respondent No. 1 for the short order impugned herein. It is pertinent to note that in the counter-affidavit filed by respondent Haji Wali Muhammad candidate from PB-13 Killa Abdullah-III he has alleged that rigging was made at Polling Stations Nos.162 to 173 and no allegation of rigging in respect of Polling Station No.53 (Abdullah Jan Takri) of PB-13 Killa Abdullah- III has been made in the counter-affidavit, therefore, the contention with regard to the validity and legality of the statement of count of this polling station seems apparently to be devoid of any substance and secondly; in respect of this polling station no adverse report or material was transmitted or available with the respondent No. 1. We; may mention here that in respect of the rigged polling stations of the constituencies, the reports and the material available with the Election Commission has been specifically referred to in the impugned order -and detailed reasons, therefore, the allegation as contained in the counter---affidavit filed by respondent Haji Wali Muhammad and Maulvi Ghulam Haider with regard to the alleged rigging of polls at the polling stations in addition to the polling stations referred to in the impugned order and the detailed reason recorded by respondent No. 1, cannot be considered while deciding the instant Constitutional petition nor this Court sitting in Constitutional jurisdiction, can be expected to entertain such question while examining the validity and legality of the impugned order and Notification.
So far as the aspect of factual justification on the part of the Election Commission in view of the available material etc. As above-said for holding of re-poll in the entire constituencies or the rigged polling stations are concerned; in our humble opinion is not justifiable in the exercise of writ jurisdiction nor the same can be looked into for the justification of reasons found favour with the Election Commission to order for re---holding of the poll in the entire constituency or at a few polling stations as it primarily and under relevant provisions of the law is the concern of the Election Commission and thus; the reasons or the justification for forming a particular view by the competent authority cannot be substituted by this Court for that of its own while exercising extraordinary Constitutional jurisdiction in relation to facts or material on the basis whereof an order including a consequential order etc. That may be passed by the Election Commission, however; we; may conclude that the High Court is not precluded in exercise of the writ jurisdiction or divested of its Constitutional powers of judicial review to see and ascertain that the order and Notification assailed in the Constitutional petition was based on material and evidence available, procured and' produced before the Election Commission in the light whereof with an objective approach an order has been passed, made and issued including the consequential orders as the facts and circumstances of a case may admit or otherwise while exercising powers under the law by such Authority. In the instant case the Returning Officer concerned of the above-said constituency forwarded reports to the Election Commission as well as Presiding Officers of the rigged polling stations also; in writing informed to all the concerned well within time soon after their hostage-siege was over that at the rigged polling stations statement of counts were obtained on gunpoint, as also at large scale rigging was done by the miscreants/supporters of the different parties including acts of violence in which a lady polling agent was also killed; was the material available with the Election Commission in relation to the constituencies NA-262 Killa Abdullah, PB- 12 Killa Abdullah-II and PB-13 Killa Abdullah-III, in addition to the inquiry conducted in the light of the report etc. By the Secretary, Election Commission of Pakistan and the reports submitted by the Provincial Election Commissioner. Bare perusal of such material which even has not been seriously disputed by the petitioners in these Constitutional petitions as well as the detailed reasons recorded by respondent No. 1 shows that with an objective approach the issue was considered and dealt with by the Election Commission except to the extent there was no material in whatever form produced or available with the respondent No.1 to conclude that the poll at the other polling stations of the abovesaid constituencies other than those in respect whereof reports regarding heavy rigging and grave illegalities etc. Were made, have not been conducted peacefully, in accordance with law and as per prescribed procedure, therefore, the impugned order and the Notification declaring and re-holding poll of these constituencies in entirety to be void as whole, is violative of the mandate and spire of relevant provisions of the law and the other enabling provisions in exercise whereof the impugned order and consequently; the Notification was respectively passed and issued. Furthermore; as there was no complaint, allegation or report submitted by the Returning Officer and the polling staff about any rigging or gross illegalities committed at the polling stations of the said constituencies other than those in relation to which reports and material was forwarded by the concerned, therefore, tire exercise or freewill in casting the votes by the electors could not have been frustrated and annulled. Consequently; following the dictum laid down by the honourable Apex Court in the above mentioned reported judgment, the impugned order and the Notification issued by the Election Commission are declared to be illegal and void and of no legal effect.
18. Adverting to the plea on the point, we; may conclude that since the petitioner No.4 namely Abdul Majeed Khan secures highest number of votes i.e. 15312 at the polls in respect of PB-13 Killa Abdullah-III at the polling stations (62 polling stations) other than those statedly rigged i.e. Killi Shah Mir, High School Abdul Rehmanzai and Primary School Killi Lal Muhammad in which the total number of the registered votes are 5471, even if be counted in favour of any other contesting candidate or the second candidate namely Haji Wali Muhammad, who secured 9087 votes (runner up) by no stretch in view of the unofficial consolidated statement or count prepared and issued by the Returning Officer concerned, can be declared as a successful candidate if the entire lot of the votes relating to the three rigged polling stations were cast or counted in his favour, therefore, in view of the reported judgment of the honourable Supreme Court in the case of Haji Behram Khan Achakzai noted above in view of similar facts, re-poll of the whole constituency could not have been lawfully ordered. The statement of counts of the said constituency placed on record by the learned Deputy Attorney-General on behalf of the respondent No. 1 confirms that candidate Abdul Majeed Khan secured a highest number of votes mentioned above and the total number of the registered votes even if be counted in respect of the three rigged polling stations in favour of the other candidate having secured the second highest number of votes will not compete with the numbers of votes secured by the said petitioner, therefore, in respect of PB-13 Killa Abdullah-III even re-poll at the said three polling stations would not be lawful as in view of the total number of votes secured by the contesting candidates at the other polling station and the available record a clear result of the polling is determinable. PLD 1990 SC 352 and 1989 CLC 1833 (Abdul Hamid Khan Achakzai v. Election Commission of Pakistan and 24 others) ref. Consequently; Election Commission is legally bound to declare and notify the result of the poll in respect of PB-13 Killa Abdullah-III in the light of the unofficial statement of count furnished to it by the Returning Officer.
Thus; in view of the above reasons impugned order and the Notification assailed in these Constitutional petitions are set aside being illegal, void and declared to be of no legal effect. We; further direct that result of poll in respect of PB-13 Killa Abdullah-III be declared and notified by the Election Commission excluding the withheld results of poll with regard to the three rigged polling stations, and, we; further direct the respondent No.1 by issuing the writ that re---poll in respect of the rigged polling stations referred to in the detailed reasons pertaining to NA-262 Killa Abdullah and PB-12 Killa Abdullah-II be made in accordance with the law and necessary consequential steps and orders be taken and passed.
The result is that the Constitutional Petitions Nos.546, 551 and 540 of 2002 are partly allowed in the above terms, leaving the parties to bear their own costs.
6 7 Result at remaining polling stations(excluding the rigged polling stations)Number of voters assigned to rigged polling stations
(1) Molvi Muhammad Hanif (leading candidate = 29865) (2) Mr. Mehm00d Khan Achakzai (immediate following candidate = 28789)29696
(1) Mr. Ghulam Sarwar Khan (leading candidate = 5665 (2) Mr. Muhammad Naseem (immediate following candidate = 4996)24225
(1) Mr. Abdul Majeed Khan (leading candidate = (15312) (2) Haji Wali Muhammad (immediate following candidate = 9087)5471