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Petitioner: MUHAMMAD YAQOOB VS Respondent: KHALIL-UR-REHMAN
1988 S C M R 1382
1988 S C M R 1382
Present: Muhammad Haleem, C. J. and Shafiur Rahman, JJ
Sardar MUHAMMAD YAQOOB‑‑Petitioner
versus
Sardar KHALIL‑UR‑REHMAN and others‑‑Respondents
Civil Petition for Leave to Appeal No.138‑R of 1988, decided on 5th June, 1988.
(From the judgment dated 24‑4‑1988 of the Peshawar High Court, Circuit Bench, Abbottabad in Writ Petition No. 599 of 1957).
North‑West Frontier Province Local Government Ordinance (VI of 1979)‑‑
‑‑‑S.39‑A‑‑North‑ West Frontier Province Local Council (Election) Rules, 1979, Rr.42 & 26‑‑Constitution of Pakistan (1973), Arts.199 & 185(3)‑‑Leave to appeal granted for fuller examination of questions (i) whether d .42 of North‑West Frontier Province Local Council (Election) Rules, 1979 and S.39‑A, North‑West Frontier Province Local Government Ordinance, 1979 do not prohibit a challenge to the election by means other than an election petition; (ii) whether an election petition was not an adequate alternative remedy particularly so when two such petitions regarding same elections were already pending and controverted questions of fact and of conduct of parties were involved, and (iii) whether the ballot‑boxes having been removed by the parties, their agents or supporters themselves, the writ petitioner had not become disentitled to the discretionary relief.
Maulvi Sirajul Haq, Advocate Supreme Court and M.A. Siddiqi, Advocate‑on‑Record (absent) for Petitioner.
Nemo for Respondents.
Date of hearing: 5th June, 1988.
JUDGMENT
SHAFIUR RAHMAN, J.‑‑The petitioner was declared successful in District Council, Abbottabad election from Ward No.2 comprising 27 polling stations in all. The notification declaring him elected has been set aside by the High Court while exercising constitutional jurisdiction on the ground that the voting at one Polling Station was disturbed, postponed and ballot‑boxes had been removed by the parties themselves, their agents or supporters. It should have been completed under rule 26. The following questions require fuller examination:
(i) Whether Rule 42 of N.‑W.F.P. Local Council (Election) Rules, 1979 and section 39‑A of N.‑W.F.P. Local Government Ordinance do not prohibit a challenge to the election by means other than an Election Petition.
(ii) Whether an election petition was not an adequate alternative remedy particularly so when two such petitions regarding same elections were already pending and controverted questions of fact and of conduct of parties were involved.
(iii) Whether the boxes having been removed by the parties, their agents or supporters themselves, the writ petitioner had not become disentitled to the discretionary relief. Leave is granted to examine these questions.
Security Rs.2,500.
Interim Order already granted to continue and it is confirmed. To be heard on the present record with liberty to the parties to file additional documents.
M.B.A./M‑469/S Leave to appeal granted.