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Civil Appeal No. 90 of 1985, decided on 7th October, 1985.

(On appeal from Judgment and Order of Peshawar High Court, dated 7‑4‑1985 in Writ Petition No. 206 of 1984).

‑‑‑Art. 185(3)‑‑N.‑W.F.P. Local Council Election Rules, 1979, r. 32‑ Leave to appeal granted to examine effect of fact that when all contesting candidates had voluntarily entered into an agreement that no female votes would cast at election whether respondent was disentitled to call jurisdiction of High Court for relief in a Constitutional petition; whether women voters had also suffered loss of valuable rights on account of said agreement, would be a relevant consideration and whether absence of challenge to election by women voters would make any difference in that behalf.

‑‑‑R. 32‑‑Constitution of Pakistan (1973), Arts. 199 & 185(3)‑‑Election‑ Respondent challenged election of appellant on ground that women voters were prevented from casting their votes as a result of illegal agreement between all contesting candidates‑‑Common grounds existed between parties that all contesting candidates including respondent had voluntarily entered into an agreement that no female votes would be cast at election‑‑It was not case of respondent that any female voter who intended to exercise her right of vote was denied by authorities responsible for conduct of election‑‑Presiding Officer categorically stating that necessary arrangements were made for casting votes by female candidates and that contesting candidates had informed him that they had agreed not to bring any female voter‑‑Held, Respondent having himself created a situation (whereby no female vote was cast) could not be allowed to make a grievance of same fact in support of his challenge to election before Election Tribunal‑‑Such fact also disentitled him equitable remedy in Constitutional jurisdiction before High Court which he had invoked to his advantage and his Constitutional petition was liable to be dismissed on this ground‑‑Writ issued by High Court, whereby appellant's election was set aside with a direction for holding a fresh election, recalled.

Sher Bahadur v. Deputy Commissioner/ Election Tribunal 1981 SCMR 147 ref.

‑‑‑Art. 199‑‑Writ of certiorari‑‑A writ in nature of certiorari in exercise of superintending control over inferior Courts, held, was not a matter of right but one of discretion‑‑Such writ will be granted or denied considering all circumstances of a particular case as ends of justice might require and in accordance with sound public policy.

Sher Bahadur v. Deputy Commissioner/ Election Tribunal 1981 S C M R 147; Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner PLD 1964 S C 829 and Muhammad Sharif v. Chief Administrator 1975 S C M R 104 rel.

Muhammad Masood Kausar, Advocate Supreme Court for Appellant.

Nazirullah Khan, Advocate Supreme Court for Respondents.

S. Safdar Hussain. Advocate‑on‑Record for Respondent No.l.

Respondents Nos. 2 to 5: Ex parte.

Date of hearing: 7th October, 1985.

‑This appeal, by leave of this Court, arises out of judgment, dated 7th April, 1985, by a Division Bench of the Peshawar High Court, Peshawar, whereby the Constitutional petition filed by Muhammad Sher Khan, respondent No. 1. was accepted and the appellant's election to a seat in the District Council, Mardan, was set aside, with a direction for holding a fresh election for the seat in question.

2. Briefly the facts are that on 1st September, 1983, the election in respect of Ward No. 28, District Council, Mardan, was held in which Muhammad Sher Khan, appellant and respondents Nos. 1 to 3 were the contesting candidates. The appellant secured the highest number of votes, namely 2,439 and in the second position respondent No. 1 secured 1,392 votes. Accordingly there being a difference of 1047 votes, the appellant was declared duly elected as per notification dated 3rd September. 1983.

3. The respondent No. 1 being aggrieved by the election of the appellant filed an election petition before the Election Tribunal, Mardan, which was, however, dismissed on 31st March, 1984, As the petitioner was unable to obtain relief from the Election Tribunal, he challenged the order of the said Tribunal in a Constitutional petition before the Peshawar High Court.

4. In support of his petition respondent No. 1 urged the sole ground that the Election Tribunal should have declared the election void as a whole, on the ground that the women voters were prevented from casting their votes as a result of an illegal agreement between the contesting parties whereby female voters of the constituency were disenfranchised. The grievance of respondent No. 1 was that although this objection raised before the Election Tribunal and the facts were not in dispute on this point the Election Tribunal disallowed the objection illegally on the following reasoning:

"The agreement not to reduce female voters for casting votes, as the evidence show, was carried forward through a 'Jirga'. But there is no evidence that it was fraudulent in any manner. On the contrary, it may be purely an honest agreement based upon the social scruples of the contesting candidates to prevent their womenfolk from appearing at the polls in conformity with social customs of the 'Ilaqa."

5. The High, Court, on perusing the evidence recorded by the Tribunal. found that although arrangements for the casting of votes by the female voters had been made, not a single female voter turned up at the polling stations for casting votes. Nevertheless in the opinion of the High Court since the difference of votes between the successful candidates and respondent No. 1 was 1047 votes, and the total number of female votes registered in the voters list for the constituency was 3,200, the agreement between the parties not to produce female voters had the effect of materially affecting the result of the election. Accordingly relying on the ratio of Sher Bahadur v. Deputy Commissioner/ Election Tribunal 1981 S C M R 147, the High Court declared that the election was void as a whole. In consequence the constitutional petition of respondent No. 1 was accepted, the order of the Election Tribunal, dated 31st March, 1984, was set aside and it was directed that fresh election to the ward in question be held.

6. Being aggrieved by the judgment of the High Court the appellant filed a petition in this Court and leave was granted in order to examine the effect of the fact that respondent No. 1 was himself a party to the aforesaid agreement that female voters will not cast votes in the election, on the discretionary Constitutional jurisdiction of the High Court. The further question for examination was whether the fact that the absentee party, namely, the women voters have also suffered loss of valuable rights on account of the said agreement, would be a relevant consideration and whether absence of challenge to the election by the women voters would make any difference in this behalf.

7. It may at the very outset be stated that, it was common ground between the parties that all the contesting candidates including respondent No. 1 had voluntarily entered into an agreement that no female votes will be cast at the election. It was not the case of respondent No. 1 that any female voter intended to exercise her right of vote and was denied the same by the authorities responsible for the conduct of the election. The High Court in its judgment has observed that Mr. Aslam Zaib Khan who was the Presiding Officer of the polling station. Sher Ghund, had categorically stated that female staff had been appointed, who remained present for a long time but during the entire polling hours no female voters turned up to cast the votes. Indeed according to the Presiding Officer the contesting candidates had informed him that they had agreed not to bring any female voter. In these circumstances it can be legitimately inferred that the functionaries entrusted with the conduct of the election were in no way responsible for non‑exercise of right of vote by the female voters. It also appears; from these established facts can record that respondent No. 1 contributed deliberately and actively to the result of which he is now making grievance. In fact according to the N.‑W.F.P. Local Council Election Rules, 1979. ballot‑boxes were to be provided by the contesting candidates themselves and learned counsel for respondent No. I candidly conceded that his client had not furnished ballot‑boxes for the female booths at the polling stations.

8. It was contended by the learned counsel for the appellant, therefore, that in view of the well‑established rule laid down by the superior Courts of this country, a person who is himself a party to the adoption of a particular course of conduct or a transaction would be disentitled to call in question such action and to invoke the equitable jurisdiction of the High Court for relief in a Constitutional petition. He further emphatically argue than the rule is well‑laid down that no man carp he allowed to take advantage of his own wrong.

8(a). On the other hand learned counsel for respondent No. 1 urged that the understanding between the contesting candidates at the election that female voters would not be brought to the polling stations being illegal, the necessary consequence was that the election as a whole was vitiated irrespective of the conduct of the respondent himself. He submitted that there is no invariable or an absolute rule of law disentitling a petitioner in a Constitutional petition from relief on the ground of his conduct. According to the learned counsel if the result would be to uphold an illegal order, the Court may ignore the conduct of the petitioner and exercise the constitutional jurisdiction in his favour.

9. Now as already discussed above all that was established before the Election Tribunal was that the contesting candidates had made and arrangement whereby no female voter was to be brought for casting votes at the election. In this matter respondent No. 1 was as much in the wrong as the present appellant, but no aspersion can be cast on the authorities responsible for the holding of election so that it could be said that their action had the effect of disenfranchising the female electorate. Unfortunately the High Court did not advert to this aspect of the matter and proceeded to its conclusion that the result of the election was materially affected by the aforesaid illegality, on the basis of this Court's judgment in Sher Bahadur v. Deputy Commissioner; Election Tribunal etc. 1981 S C M R 147. The facts of that case, in our opinion, are wholly irrelevant to the present case and, therefore, the ratio of that decision is of no assistance in the decision of the present controversy. In that case some lady voters had cast their votes but the contesting candidates had jointly applied to the Presiding Officer not to take into account the votes thus cast by lady voters. The Presiding Officer agreed with this proposal and rejected from the count all the votes of the ladies cast at the election. In these circumstances it was observed:

"The voter whose name appears on the electoral roll has a right to cast his vote for any candidate that he liked. The candidate has no right to deprive him of his right to vote or to say that he does not accept his vote. The Presiding Officer had, therefore, no power to accept the agreement between the candidates and to disenfranchise the women voters."

Therefore, in the reported case the action of the Presiding Officer in excluding votes already cast from consideration while preparing the result of the election was patently illegal. There were also other grounds which vitiated the election in that case. The dictum laid down in the reported case, therefore, furnished no basis for the conclusion arrived at by the High Court.

10. The principle that a writ in the nature of certiorari in exercise of superintending control over inferior Courts is not a matter of right, but one of the discretion is now well‑established as laid down by this Court. Such a writ will be granted or denied according to all the circumstances of each particular case, as the ends of justice may require and in accordance with the sound public policy. 1t was pointed out in Ghulam Mohi‑ud‑Din v. Chief Settlement Commissioner, etc. P L D 1964 S C 829, that one of the grounds upon which the Courts in England have consistently held a party seeking such a writ to have disentitled himself to this extraordinary remedy is his failure to object to such usurpation of jurisdiction before the Tribunal concerned or to raise the objection at the earliest opportunity before the Tribunal, whose illegal order he seeks to have quashed by the writ, if he was aware that the Tribunal lacked the jurisdiction it purported to exercise. On the same footing is the principle that a party to a case will not be allowed to approbate and reprobate in the same breath about the same matter. See Muhammad Sharif v. Chief Administrator. etc. 1975 S C M R 104. In the case of Ghulam Mohi‑ud‑Din the rationale of these rules of law has been explained and it has been stated that the writ is refused in such cases not because the jurisdiction is conferred on the Tribunal or authority concerned by waiver and acquiescence but because even though the impugned order is without jurisdiction, the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself.

11. Applying these principles to the facts of the present case we are of the firm view that respondent No. 1 having himself by his own act created a situation whereby no female vote was cast, cannot be allowed to make a grievance of the same fact in support of his challenge to the election before the Election Tribunal. At any rate this fact clearly disentitled him to the equitable remedy in the Constitutional jurisdiction before the High Court which he had invoke to his advantage. This is sufficient to dispose of this appeal and we feel that it is not necessary to go into further questions of law noticed in the leave granting order. Constitutional petition was. therefore, liable to be dismissed on this preliminary ground in view of the admitted facts of the case.

12. In the result thin appeal is allowed, with no order as to costs and the writ issued of the High Court is hereby recalled.

M. Y. H. Appeal allowed.

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