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Constitutional Petition No.D-53 of 1987, decided on 19th February, 1987.

---Art.199--National Council of Homoeopathy Election Rules, R.30-A--Petition challenging validity of election of respondents to Council of Homoeopathy--Enough safeguard having been provided in R.30-A of Election Rules for vindication of rights of defeated candidates and matter - could be sorted out in appeals which had already been filed and were pending with Federal Government--- Constitutional petition involving disputed questions of fact, held, was not a proper remedy before High Court which could not hold a detailed enquiry into the matter--Petition dismissed.

Muhammad Asar Hussain for Petitioner.

Nemo for Respondent No.1.

Respondent No.2 in person.

Sardar Abdul Majeed Khan for Respondent No.3.

Muhammad Asghar H. Khan for Respondent No.4.

-The petitioners have called into question the elections which have been held in respect of three seats for the Council for Homoeopathy from Sind. There were nine candidates for these three seats and the Returning Officer was Dr. Atta Muhammad, respondent No.2 whose name has wrongly been mentioned as Dr. Attaullah Mangi in the title of the petition. The elected candidates have been included as respondents Nos.4, 5 and 6.

The submission of the learned counsel for the petitioners was that there had been rigging in the elections and the elections were not conducted by respondent No. 2, Dr. Atta Muhammad. Dr. Atta Muhammad and Dr. M.S. Najmi, respondent No.3 in their respective counter-affidavits have denied this allegation. The petitioner has filed a number of protest letters which the petitioners and other candidates or voters have addressed to the Returning Officer pointing out the deficiency in respect of the issue of ballot papers and particularly issue of postal ballot papers.

It is not possible for this Court to hold an enquiry into the allegations which have been made by the petitioners in this petition. The petitioners' counsel has, however, pointed out that Dr. Atta Muhammad in his own counter-affidavit has stated that there were 361 bogus ballot papers which he had disallowed. On the basis of this statement of Dr. Atta Muhammad, learned counsel for the petitioner wants us to declare the entire elections invalid. This can hardly be a reason for declaring the elections invalid. On the other hand this can be a reason for declaring the elections valid because Dr. Atta Muhammad appears to have performed his duty in the proper manner. However, this observation of our's should be treated merely for the purpose of this Petition and not in respect of the merits of the elections because we understand that three appeals have been filed by defeated candidates under Rule 30-A of the Election Rules and the same are pending with the Federal Government. The allegations which have been made in the various documents filed by the petitioners are merely the allegations and they cannot be treated as having been proved unless and until all the evidence is recorded. We are afraid, this is beyond the supervisory jurisdiction of this Court.

Mr. Muhammad Asar Hussain has pointed out that the voters, as the petitioners are, do not have any right of safeguarding purity of the elections. That may be so, but the fact is that there is appeal provided under Rule 30-A to the defeated candidates and if they feel that any vote has been invalidly committed or any vote has been illegally excluded from consideration, then they can file appeal and in fact these are two basic points in respect of the success or defeat in the elections. It would involve a good deal of enquiry into the matter and the petitioners, two of whom are the polling Agents of the two defeated candidates who have filed the appeal, can place before the Appellate Authority the various illegalities which have been allegedly committed in respect of the sending of the ballot papers. After all if there is any illegality committed in respect of the ballot papers and the same can be positively proved then the defeated candidates can make a submission that the ballot paper which has been the subject of any illegality or irregularity should be left out of consideration or the one illegally left out should be included. We are, therefore, of the view that enough safeguard has been provided in Rule. 30-A of the Election Rules for vindication of the rights of the defeated candidates and, therefore, the matter can be sorted out in the appeals which have been filed. The petition involving disputed questions of fact is not a proper remedy before us as we cannot hold a detailed enquiry into the matter. The petitioners, themselves aligning with the defeated candidates, should pursue their remedy under section 30-A of the Election Rules.

This petition is, therefore, dismissed in limine. Miscellaneous Application is also dismissed.

S.Q./K-10/K Petition dismissed.

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