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Petitioner: YOUSAF MUNEER SHAIKH and otherss VS Respondent: ELECTION COMMISSION OF PAKISTAN and others
Court Name: Sindh High Court Judge(s): Anwar Zaheer Jamali, Gulzar Ahmed Title:YOUSAF MUNEER SHAIKH and otherss vs ELECTION COMMISSION OF PAKISTAN
and others Case No.: C.P. No,D-715 of 2004 Date of Judgment:2004-07-21 Reported As: 2005 CLC 123 Result: Petition accepted Judgment ORDER ' ANWAR ZAHEER JAMALI, J.--- By this Constitutional petition, petitioners Yousaf Munir Shaikh, Muhammad Abid Ali Umang and Nisar Ahmed Panhwar, who were respectively. Candidates from PS-127 Karachi-39, NA-240, Karachi-2, and NA-246 Karachi-8 in the bye-elections held on 12-5- 2004, have challenged the order dated 9-6-2004 passed by respondent No,1, and have prayed for the following reliefs:-- A. That this Honourable Court may be pleased to declare that the impugned order dated 9-6-2004 is bad in law, arbitrary, unjust, mala fide and of no legal effect. B. That this Honourable Court may be pleased to hold that petitioner No,1 having secured highest number of votes in Constituency P.S. 127, Karachi-39, Petitioner No,2 having secured highest number of votes in N.A. 240, Karachi-2 and Petitioner No,3 having secured highest number of votes in N.A.246, Karachi-8 are entitled to be declared as returned/elected members of the Sindh Provincial and National Assembly of Pakistan. C. That this Honourable Court may be pleased to direct respondent No,1 to declare by public notice the petitioner No,1 from P.S. 127, Karachi-39, petitioner No,2 from N.A.240, Karachi-2 and petitioner No,3 from N.A. 246, Karachi-8 as returned/elected candidates. D. That this Honourable Court may be pleased to grant permanent injunction restraining respondent No,1 from giving effect to and from taking steps pursuant to Notification No,F.8(16)/2004- Cord, dated 9-6-2004. E. Any other/further additional relief/relieve which this Honourable Court deems fit proper and exercise in the circumstances of the case. 2. Briefly stated, the , case of the petitioners is that in the bye-elections of their respective constituencies at Karachi held on 12-5-2004 they were the returned candidates, having secured
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following votes as against their nearest rival candidates:-- SI. No. Constituency No. Name of the Candidate/petitionerVotes secured Name of nearest rival candidate 1. PS-127 Karachi-39 Yousuf Munir Shaikh 41089 Muhammad Umar Jat 25430 2. NA-240 Karachi-2Muhammad Abid Ali Umang46453 Qari Muhammad Usman 26053 3. NA-246 Karachi-8 Nisar Ahmed Panhwar47685 Rashid Naseem 16895 ' It was obligatory upon respondent No,1 to have declared their results accordingly in terms of section 42 of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976) but instead of doing so the election results were initially kept in abeyance by respondent Nol vide order, dated 13-5-2004, thereby further authorising one of its members, Justice Muhammad Sadiq Leghari to hold summary enquiry. Thereafter purportedly exercising its powers under section 103- AA of the Act of 1976 respondent No,1 declared the whole election process in their respective constituencies null and void and directed holding of fresh bye-elections, in an arbitrary manner. To impugn such order of respondent No,1 some of the grounds urged in the petition read as under:-- (i) That the impugned order has been passed by the respondent No,1 in purported exercise of section 103-AA of the Representation of the People Act, 1976 which empowers the respondent No,1 to declare the poll in any constituency- void in case the respondent No,1 is satisfied that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or the rules framed thereunder have been committed. It is submitted that such powers by the respondent No,1 can only be exercised if from the facts apparent on the face of the record and after such summary inquiry as the respondent No,1 may deem necessary come to the conclusion that grave illegalities or violations of the provisions of the Representation of the People Act, 1976 or rules framed thereunder have been committed. It is further submitted that as is evident from the reports of the relevant District Returning Officers and Returning Officers the poll in the 3 Constituencies were held in a free, fair and transparent manner and as such the alleged gross illegalities or violations of the provisions of the Act or the rules were not apparent on the face of record. (ii) That section 103-AA of the Representation of the People Act, 1976 does not confer unbridled and unfettered powers on the respondent No,1 to declare the poll void but exercise of such power by the respondent No,1 is subject to existence of grave illegalities or violation of the provisions of the Act or the Rules apparent on the face of the record and holding of such summary enquiry as the respondent No,1 may deem necessary. It is submitted that while passing the impugned order the reports of the Returning Officers and the Law Enforcement Agencies were available before the respondent No,1 and from such reports no illegality or violation of the provisions of Act or Rules is apparent on the face of the record. Furthermore, no other material on record by way of summary inquiry was brought before the respondent No,1 which may suggest or prove that grave illegalities or violations of the provisions of the Act or Rules were committed by the petitioners. Such being the position the order, dated 9-6-2004 passed by the respondent No,1 is based on surmises and conjectures. (iii) That section 27 of the Representation of the People Act, 1976 empowers a Presiding Officer of a Polling Station to stop the poll and inform the Returning Officer that he has done so if the poll at the Polling Station at any time, so interrupted or obstructed for a reason beyond the control of the Presiding Officer that it cannot be resumed during the polling hours fixed under section 26 or any
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ballot box used at the Polling Station is unlawfully taken out of the custody of the Presiding officer or lost or damaged or tampered with to such an extent that a result of the poll at the Polling Station cannot be ascertained. It is submitted that during the entire electoral process of 12-5-2004 polling was stopped temporarily for a short period only on one Polling Station i,e, Polling Station No,94 in P.S. No,127, Karachi-39 and on this Polling Station also polling resumed after a short interval and continued in a peaceful and orderly manner till the closing hours of the polling. There was no incident of removal of ballot box or tampering or stuffing with the same at any of Polling Stations. Such orderly, fair, transparent and peaceful conduct of poll on 12-5-2004 amply demonstrated that insofar as the conduct of election is concerned the same was done in any orderly peaceful and transparent manner and as such the respondent No,1 had/have no justification to declare the poll null and void. (iv) That the impugned order of declaring the poll null and void has been based by the respondent No,1 on the complaints which were made by the parties regarding alleged grave illegalities. It is submitted that the complaints made by the parties on the election day cannot be made basis for declaring the poll null and void as the complaints made by the parties requires probe, investigation and evidence which can only be done by the Election Tribunal in an Election Petition under section 52 of the Representation of the People Act, 1976. It may be added that indeed none of the losing candidate appeared before the respondent No,1 to substantiate the allegations contained in the complaints made before the respondent No,1 in respect of process of election held on 12-5-2004. (v) That the respondent No,1 has gravely erred in holding that there was indiscriminate firing in the said constituencies which resulted in interference with the free exercise of right of franchise of the electorate during bye-election in the said 3 Constituencies. It is submitted that incident of firing in N.A. Constituency No,240 is restricted and as reported was a hit and run incident, as is evident from the police reports, at one Polling Station situated in Anjam Colony, Baldia, Karachi and as per the consolidation of result count 6215 votes were cast as against total registered 10521 votes at this Polling Station. In any event the ends of justice would have met if re-polling on this Polling Station would have been ordered. It is submitted that on account of disturbance/violence at one Polling Station alone the entire result cannot be declared null and void. (vi) That from the tenor of the impugned order dated 9-6-2004 it became crystal clear that the incidents of firing at some places weighed with the respondent No,1 in declaring the poll in the 3 constituencies as null and void. It is submitted that firing incidents in P.S. Constituency No,127, Karachi-39, took place outside only one Polling Station i,e, Polling Station No,94 situated in Jafer-e- Tayar Society, where no causalty took place and few persons were injured as a result of firing and as a result of injuries caused with hard and blunt objects. In N.A. Constituency No,240, Karachi-2 the incident of firing took place outside the Polling Station situated in Anjam Colony and in N.A.246, Karachi-8 incident of firing took place outside 3 different Polling Stations as is evident from the police report which has been incorporated in the impugned order itself at page 5. It is submitted that on account of incidents of firing polling was not disturbed or stopped and it continued till the scheduled time of closing of polling, as is evident from the report of the Rangers. Such being the position the order of declaring the poll, null and void is bad in law, arbitrary, mala fide and of no legal effect. (vii) That there were 158 Polling Stations in N.A. 240, 197 Polling Stations in N.A. 246 and 130 Polling Stations in P.S. 127 and in N.A. 240 firing incidents took place outside 3 Polling Stations, in N.A. 246 firing incident took place outside one Polling Station and in P.S. 127 firing and disturbance took place outside one Polling station as is apparent from the police reports which is available at page 5 of the impugned order. Such being the position the entire poll does not stand vitiated and the poll cannot be declared as null and void merely on account of disturbance at some Polling Stations (16
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out of 495 Polling Stations) and as such the order of respondent No,1 is bad in law, arbitrary and unjust and of no legal effect. At best the respondent No,1 could have passed an order for holding of fresh polls only on such Polling Stations where such disturbance had taken place. 3. On service of notice of this petition, appearance has been made by Mr. Makhdoom Ali Khan, Attorney-General of Pakistan, Mr. Anwar Mansoor Khan, Advocate-General, Sindh, both on Court notice, counsel named above on behalf of some of the respondents, while other respondents have chosen to remain absent. 4. Reply on behalf of respondent No,1 has been filed wherein it has been stated that in view of the interim order passed by this Court in this petition on 22-6-2004 further process of fresh elections in these constituencies in pursuance of the notification dated 9-6-2004 has been stayed. As to the other allegations made in the petition it has been asserted that the impugned order, dated 9-6- 2004 has been passed in Conformity with the provisions of section 103-AA read with section 104 of the Act of 1976 and Article 6 of the Election Commission Order, 2002 after proper application of mind and considering all the facts and circumstances of the case in a bona fide manner, therefore, the petition is liable to be dismissed. Other respondents have not submitted any comments/reply to this petition, 5. 'Mr. Abul Inam, Advocate representing petitioners in this case reiterated the facts stated in the petition and strongly contended that the impugned order passed by respondent No,1 is a glaring instance of arbitrary and mala fide exercise of power by respondent No,1 contrary to the material available on record before it, and ignoring the relevant material without any cogent or valid justifications. He made specific reference to three reports submitted by the respective Returning Officers/Assistant Returning Officers of P.S.-127, N.A.-240 and N.A.-246 to show that none of these Officers, who were in charge of the whole election process at the relevant time had reported any illegality, irregularity, rigging or such other incidents at any Polling Station except interruption of polling on two Polling Stations for some short period which could have materially affected the election results of the petitioners who are the returned candidates. In the same context he also made reference to paragraph 4 of the impugned order, wherein the reports submitted by Tariq Jamil, D.I.-G.P. Operations, Haji Abdul Razzaque, I.N.S.P. Sharfabad P.S. Investigation Zone III Karachi, Ashfaq Hussain, I.N.S.P. Liaquatabad P.S., Bashir Khan Sub-Inspector Gulberg P.S. Investigation Zone III Karachi, Muhammad Riaz Sub-Inspector, Liaquatabad P.S. Investigation Zone III, Karachi, Niaz Ahmed Khoso, Senior Superintendent of Police Investigation Zone IV, C.C.P., Karachi, have been reproduced to show that in these reports also, except some incidents of violence outside few Polling Stations, resulting in some casualties, no allegations of rigging, bogus voting or any other illegality, materially affecting election results were reported. He, therefore, contended that the impugned order passed by respondent No,1 is based on surmises and conjectures which do not find support from any material available before the respondent No, 1. Referring to the provisions of section 103-AA of the Act of 1976 learned counsel further contended that if there was any illegality or irregularity in the process of bye-elections held on 12-5-2004 then proper/appropriate remedy was available to the aggrieved parties by way of Election petitions before the Election Tribunal, after the notification under section 42 of the Act of 1976 was issued by. Respondent No, 1. He also urged that the scope of summary enquiry contemplated under section 103-AA of the Act of 1976 cannot be stretched in an arbitrary manner to the extent that contrary to the reports and other material available before respondent No,1, which were received from independent sources, on the pretext of restoring the confidence of general public on respondent No,1, by a stroke of pen the whole election results could be declared void. Mr. Abul Inam contended that the authenticity of the results compiled by Returning Officers of their respective constituencies were not in dispute, thus, the respondent No,1 had no option but to declare such results in terms of section 42 of the Act of 1976 leaving it open for the losing candidates to agitate any further grievance in respect thereof
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before the Election Tribunal established under section 57 of the Act of 1976 for this purpose. To add force to his contention he relied upon the case of Kunwar Khalid Younus v. Federation of Pakistan PLD 2003 Kar. 209 wherein a Division Bench of this Court has held that section 42(4) of the Act of 1976 casts a mandatory duty upon Election Commission to publish the name of returned candidates, on the basis of the consolidated result communicated by the Returning Officer, irrespective of any power that the Election Commission may exercise under section 103-AA to declare an election void upon finding of grave illegalities or violation of law. 6. Continuing with his arguments Mr. Abul Inam submitted that nullifying the whole election results of three constituencies PS-127, NA-240 and NA-246 by impugned order mainly on the pretext of instances of indiscriminate firing resulting in several casualties and for restoring the confidence of public on Election Commission of Pakistan, the respondent No,1 has laid down a very dangerous precedent to give benefit to a party who himself may be instrumental/responsible for creating such law and order situation or loss of precious lives of innocent citizens, which has otherwise no nexus to the smooth election process, as confirmed by the Returning Officers in their respective reports. Critically examining the impugned order he urged that the material available, with respondent No,1 at the time of passing of impugned order could be categorized in three parts (a) enquiry reports submitted by the Home Secretary and Law Enforcing Agencies on the directions of Commission; (b) reports submitted by the Returning Officers on the directions of the Commission and (c) complaints in the shape of telegrams and letters directly received by the Commission. From these reports, first two reports have supported the claim of the petitioners, inasmuch as there were no such incidents of violence which could materially affect the results of the three constituencies, while the third part of the material, telegrams and complaints were wholly unsupported from any corner as even the complainants themselves have not responded to join the enquiry proceedings before the Commission. In the same context he also made reference to the proceedings before one of the members of the Commission, Mr. Justice Muhammad Sadiq Leghari, who was authorized to hold enquiry in terms of the order, dated 13-52004, to show that he had expressed his inability to hold detailed enquiry due to the factors, including profile of the matter, the absence of MMA candidates and the expressions made by some circles through media. Learned counsel also made comparative analysis of remedies provided under sections 52 and 103-AA of the Act of 1976 to show that the former provision of law is the one where full-fledged enquiry is to be conducted through Election Tribunal to examine all grievances through Election Petitions in an appropriate and judicious manner while under the latter provision of law only summary procedure is prescribed in the cases where grave illegalities or violations of law and rules of such nature are apparent on the face of record which could form valid basis to nullify whole election results in a summary manner. To amplify the concept of "apparent on the face of record" learned counsel placed reliance on the following cases:-- (a) Messrs Joint Venture KG/KIST v. Federation of Pakistan PLD 1996 SC 108, (b) Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741, (c) Mohtarama Benazir Bhutto v. President of Pakistan PLD 2000 SC 77. ' Relevant observations from these cases adverted to by the learned counsel are reproduced as under:-- PLD 1996 SC 108 (119) ' "We may mention here that the Court while examining the validity of an award does not act as a Court of appeal. Therefore, a Court hearing the objection to the award cannot undertake reappraisal of evidence recorded by the Arbitrator in order to discover the error or infirmity in the award. The error or, infirmity in the award which rendered the award invalid must appear on the face of the award and should be discoverable by reading the award itself. Where reasons recorded
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by the Arbitrator are challenged as perverse, the perversity in the reasoning has to be established with reference to the material considered by the Arbitrator in the award." PLD 1979 SC 741 (768) "43. From what has been said in the preceding paragraphs it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination." PLD 2000 SC 77 (81) "Before an error can be a ground for review it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error which is self-evident and floating on the surface and does not require any elaborate discussion or process of ratiocination." 7. Mr. Abul Inam also placed reliance on the following passages from the case of Abdul Hamid Khan Achakzai v. Election Commissioner of Pakistan, Islamabad and 24 others 1989 CLC 1833 to fortify his submissions with reference to the extent of jurisdiction of respondent No,1/Election Commission of Pakistan in invoking its powers conferred uder section 103-AA of the Act, which reads thus:-- "It may be seen that section 27(1)(b) expressly caters for special situation wherein ballot boxes used at the polling station, are unlawfully taken away from the custody of the Presiding Officer and are destroyed, lost, damaged, or tampered with whereupon result of such polling station cannot be ascertained. Evidently the Returning Officer is obliged to communicate such happening to Election Commission who shall direct fresh polls unless satisfied that result of the election in the said constituency is appropriately determinable on the basis of voting already held in the remaining polling stations. Anyhow powers of, 'Election Commission' for directing fresh polls in a particular polling station and procedure for counting are specified in subsections (3) and (4) of section 27. Whereas section 103-AA describes general supervisory and all pervading authority of 'Election Commission' for declaring election of the whole constituency as void on being satisfied about existence of grave illegalities or serious violations of the provisions of 'The Representation Act' or 'Election Rules' in the conduct of polls in any constituency. In the instant case report was made by the Returning Officer to the Election Commission about unauthorised forcible removal of the ballot boxes concerning two polling stations i,e, 43 and 44 by a group of persons admittedly other than the petitioner. There was absolutely no grievance placed by either party before the `Election Commission' about any violation in the remaining 55 polling stations. We are quite clear that when express provision concerning exercise of authority by a form providing specific mode of redress to an aggrieved party exists then it would be inexpedient to invoke general or supervisory provisions of the statute. Similarly basic object of providing variety of jurisdiction to a forum is necessarily for rectifying mischief or violation through least disturbance, inconvenience or expenses. No doubt Election Commission is vested with jurisdiction to declare void, results of the entire constituency within the purview of section 103-AA but in our view such authority is exercisable only when other express provisions of law are not suitable to cater for the given situation. ' Additionally it appears imperative that preconditions contained in the general provision should be fully satisfied before making direction about extreme action for disturbing the whole electorate of the constituency. Section 103-AA obviously regulates jurisdiction of the Commission, only when grave illegalities are reported to have been committed in the `Constituency' as distinguished from 'Polling Station' section 2(vii) of 'The Representation Act' defines constituency as delimited under the Delimitation of Constituencies Act, 1974. Whereas 'Polling Stations' is a fraction unit, established
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by the District Returning Officer in every constituency for facilitating holding of elections as contemplated under section 8 of said enactment. Admittedly in Constituency PB-9 Pishin IV, fifty- seven (57) polling stations were established through Gazette Notification No,199 Quetta 22-10-1988. Therefore, Election Commission while considering factum of rigging, malpractice, illegal practices, or violation of law or rules was obliged to see whether alleged illegalities or improprieties were reported in `The Constituency' or considerable portion thereof, or merely in one or two specified polling stations. The Election Commission was further bound to consider whether final result of the Constituency was otherwise determinable on the basis of polls conducted in the remaining majority of the polling stations. We are inclined to observe that relevant facts for assumption of jurisdiction have not been kept in view by Election Commission No,1 while passing the impugned order, besides provisions of section 27(1)(b) and :other factual aspects were completely ignored. In this context it would be proper to mention here that Constituency PB-9 Pishin IV comprising of 57 polling stations has 95,907 voters. Whereas voting strength of polling stations 43 and 44 combmed together consists of 2,782 persons. Apparently, when matter came up for hearing before the Election Commission there was no complaint in respect of remaining 55 polling stations consisting of…
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