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Civil Petition for Special Leave to Appeal Nos. 501 and 502 of 1980, decided on 9th December, 1980.

(On appeal from the order of Lahore High Court, dated 13‑2‑1980 in Writ Petitions Nos. 8453 and 8454 of 1979).

(a) Constitution of Pakistan (1973)‑‑

Arts. 185(3) & 199‑‑Punjab Local Councils (Election) Rules, 1979, R.60‑‑Constitutional jurisdiction‑‑Special law providing for a forum for initiation of inquiry into facts‑‑Effect‑‑Power of judicial review in such a case ordinarily does not come into play unless whole gamut of fact finding process has been gone through and effect of facts ascertained determined by Tribunals charged with duty in the matter.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 185(3)‑‑Punjab Local Councils (Election) Rules, 1979, R.60‑ Constitutional jurisdiction‑‑Breach of rule‑‑Effect on election‑‑Mere breach of a Rule, an Instruction or a provision of law does not per se vitiate or invalidate an election but it is only when upon such breach result is materially affected that election itself gets tainted‑‑For determining nature, background and effect of illegality a factual inquiry has in any case to be undertaken and if that is not undertaken, constitutional jurisdiction, held, was not appropriate one for redress of grievances.

(c) Punjab Local Councils (Election) Rules, 1979‑‑

‑‑‑R. 60‑‑Constitution of Pakistan (1973), Art. 199‑‑Petition for leave to appeal‑‑Election‑‑Petitioner raising a number of questions of fact which all stood controverted‑‑Only legal ground raised was that election to office of Vice‑Chairman was not held after election of Chairman but simultaneously and as such violation of R. 60 of Punjab local Councils (Election) Rules, 1979 took place‑‑Effect of such an irregularity, if it was, there, remaining undetermined and for determining same a factual inquiry was to be undertaken which was not undertaken‑‑Constitutional jurisdiction, held, was not appropriate one for redress of such grievances‑‑High Court in refusing discretionary relief, therefore; had nut acted in breach of any principle of law.

Hakam Qureshi, Advocate with Rana Maqbool Ahmad Kadri, Advocate‑on‑Record for Petitioners (in both petitions).

Date of hearing: 9th December, 1980.

Petitioner Mir Muhammad Yaqub, an elected member of Town Committee, Kunjah, Tehsil and District Gujrat, contested election for the office of Chairman held on 20‑12‑1979 and lost to Malik Muhammad Zafar Khan. Petitioner Muhammad Alsam, an elected member of the same Committee, contested the election for the office of the Vice‑Chairman held on the same date and lost to Tufail Ahmad. By separate Constitutional petitions they challenged the elections on numerous grounds. Their petitions were dismissed. Now they seek leave to appeal against the judgment of the Lahore High Court, dated 13‑2‑1980 whereby their petitions were dismissed.

2. The grounds taken up by the petitioners for avoiding the defeat at the elections were summarized for the purposes of one of the petitions (C.P.S.L.A. 501 of 1980) by the learned Judge in the High Court as follows:‑

(a) That the election was conducted in violation of rule 60 of the Punjab Local Councils (Election) Rules, 1979, inasmuch as the election of the Chairman was held along with the election of Vice‑Chairman, whereas according to the rule, the Chairman's election had to be held first;

(b) that some of the members of the Committee, who, had participated in the election were not qualified to be members and that their participation had rendered the election as being void;

(c) that a stay order had been issued against respondent No.14, by the Election Authority restraining him to participate in the election and as such he had no authority to vote at the election;

(d) that the petitioner as well as respondents Nos. 11, 12 and 13, were not allowed to cast their votes at the election and as such no valid election can be deemed to have been held; and

(e) that respondent No.1 being a member of ran unregistered political party could not participate in the election because of the prohibition contained in section 21(f) of the Punjab Local Government Ordinance, 1979, read with provisions of President's. (Post Proclamation) Order V of 1977."

After examining each of these grounds the learned Judge came to the conclusion that they were not borne out from the record.

3. It is clear from the enumeration of the grounds that a number of questions of fact were raised. They were all controverted. The law relating to the elections to the local bodies provides for a forum for the initiation of inquiry into such facts, their ascertainment and determination and the effect of the facts ascertained on the legality of the elections conducted. Where such is the case the power of judicial review ordinarily does not come into play unless the whole gamut of fact finding process has been gone through and the effect of the facts ascertained determined by the Tribunals charged with duty in the matter.

4. The only ground which according to the learned counsel for the petitioners was of law, the facts borne out from the record by itself and admitting of no dispute was the first one, namely, that of violation of rule 60 of the Punjab Local Councils (Election) Rules, 1979 as the election to the office of the Vice‑Chairman was not held after the election of the Chairman but simultaneously. The effect of such an irregularity if it was there remains undetermined.

5. It need not be impressed that mere breach of a rule, an instruction or a provision of law does not per se vitiate or invalidate an election. It is only when upon such breach the result is materially affected that the election itself gets tainted. For determining the nature, the background and the effect of the illegality in cases like these a factual inquiry has in any case to be undertaken and that having not been undertaken. Constitutional jurisdiction was not the appropriate one for redress of such grievances.

6. We find that the High Court in refusing the discretionary relief has not acted in breach of any principle of law. The leave to appeal is, therefore, refused in both cases.

M. Y. H. Leave refused.

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