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Petitioner: Dr. SOHRAB AHMED KHAN SARKI VS Respondent: Mir HASSAN KHOSO and others
Court Name: Supreme Court of Pakistan Judge(s): Khilji Arif Hussain, Rehmat Hussain Jaffery, Anwar Zaheer Jamali Title: Dr. SOHRAB AHMED KHAN SARKI vs Mir HASSAN KHOSO and others Case No.: C.P.L.A. No, 236-K of 2008 Date of Judgment:2009-11-26 Reported As: 2011 SCMR 1084 Result: Appeal allowed
JUDGMENT
JUDGMENT ANWAR ZAHEER JAMALI, J.---This petition, under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973 (in short "Constitution"), has been preferred by the petitioner for seeking leave to appeal against the order dated 11-4-2008, passed by a Division Bench of High Court of Sindh, Karachi in C.P. No, D- 614 of 2008 (Re: Dr. Sohrab Ahmad Khan Sarki v. Mir Hassan Khoso and others), whereby the said petition, containing following prayers, was dismissed:-- "(i) To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 for re- polling in 25 polling stations and Notification dated 6-3-2008 for re-polling on two more polling stations (total 27 polling stations), issued by the learned respondent No,5 is absolutely illegal, void ab initio, in complete violation of Articles 219, 225 of the Constitution of Islamic Republic of Pakistan, hence liable to be declared nullity in the eyes of law. (ii) To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 and 6-3- 2008 are in complete negation of section 103-AA, hence liable to be set aside. (iii) To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 and 6-3- 2008 for re-polling, are in complete violation of section 52 of the Representation of Peoples Act, 1976, read with Article 225 of the Constitution, hence liable to be set aside. (iv) To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 and 6- 3-2008 for re-polling issued by the, respondent No,5 are also vioaltive of the rules laid down by the honourable Supreme Court of Pakistan in the famous cases of Javed Hashmi and Ghulam Mustafa Jatoi and the principles laid down in the aforesaid judgments in terms of Article 189 of the Constitution was also binding on the respondent No, 5, hence the impugned order dated 5-3-2008 as well as the Notification for re-polling dated 5-3-2008 and 6-3-2008 are also violative of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. (v) Direct the respondent No,5 to immediately issue the notification declaring the petitioner as returned/winning MPA from Provincial Assembly Sindh Constituency No, PS-15, Jacobabad-III and Consequently allow the petitioner and his party (PML-Q) to avail the right of choosing candidates for reversed/special seats for minorities, ladies, etc.". 2. Formulation of facts relevant for the disposal of this petition is as under.
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3. In the General Elections scheduled on 18-2-2008, under the command of respondent No, 5 (Election Commission of Pakistan), petitioner was one of the contesting candidates in respect of Sindh Provincial Assembly Seat: PS-15 Jacobabad-III, on the ticket of Pakistan Muslim League (Q). The respondent No,1 was also one of the other contesting candidates from the same constituency on the ticket of Pakistan Peoples Party Parliamentarian Group. The said elections for PS-15 Seat took place as per notified schedule, wherein, according to the petitioner, he secured 53801 valid votes, while from the other contesting/losing candidates, respondent No,1 secured (maximum) 39682 votes. The unofficial result to this effect was announced on the same day, however, due to mismanagement, coupled with serious Law and order situation at some polling stations and at the office of respondent No,3 (Returning Officer), the final result could not be compiled. In this regard some of the contesting candidates, who lost in the elections, also made complaints before respondents Nos. 1 and 2, and other high-ups. At a stage when the tabulation/preparation of final official result was in process, on 25-2-2008, respondent No, 1 filed Constitutional Petition No,324 of 2008 before the High Court of Sindh, inter alias alleging therein rigging at large scale in favour of the petitioner in connivance with the Returning Officer PS-15. He simultaneously also claimed himself to be, the returned candidate from PS-15, Jacobabad-III, and on such facts; sought following reliefs in the petition:- "(A) Declare that once the petitioner has been declared winner in PS-15, Jacobabad-III, He cannot be declared a looser in the manner and circumstances. (B) Declare that the petitioner is the winner in PS-15, Jacobabad-III and thus direct the respondent No,1 to act accordingly. (C) Restrain the respondent No,1 from issuing Notification declaring the respondent No,3 as successful in PS- 15, Jacobabad-III. (D) Cost of the petition may be awarded. (E) Any other relief which this honourable Court may deem fit and proper under the circumstances of the case." ' During the pendency of such petition, on same set of facts and grounds as urged in the said Constitutional petition, respondent No,l. Also made petition under section 103AA of the Representation of the People Act 1976 (in short "Act of 1976") before respondent No,5 with the prayer that re-polling at the whole constituency may be ordered under the supervision of army to ensure due law and order situation and honest results. 4. On such petition from respondent No,1, comments were called from the Returning Officer PS-15, who, in his report dated 26-2-2008, submitted the facts and circumstances due to which final consolidated results of PS-15 could not be compiled by him. He also prayed for shifting the place of consolidation of results from Jacobabad to some other suitable place, like Karachi or Hyderabad; so that the highhandedness caused by the group of one candidate may be avoided and the final/official results may be announced. In the same context, District Returning Officer also submitted his report dated, 28-2-2008, mentioning therein the mismanagement and creation of law and order situation at some polling stations; as a result of which the Returning Officer PS-15 could not compile, the consolidated result of PS-15 constituency. He also recommended for re-polling at PS-15 Jacobabad-III under the control of Army and Pars-military forces. 5. In addition to these reports, petitioner also filed his detailed reply to the petition, inter alia, challenging its maintainability being premature. He also gave other relevant facts to show that he is the returned candidate who as per unofficial result announced on 19-2-2008 has secured 53312 votes as against 37645 votes in favour of respondent No,1 and less than 4000 total votes in favour of other losing candidates. He, therefore, prayed for dismissal of petition and declaration of such result as pei section 42 of the Act 1976. 6. After receipt of these reports from the Returning Officer, District Returning Officer, and reply from the petitioner, and hearing the concerned parties, respondent No,5 passed the impugned order dated 4-3-2008, whereby he directed the election authorities for holding of re-polling on 25 polling stations, as detailed in the said order. The only reason assigned for this purpose was abnormal percentage of votes cast in favour of the winning candidate at these polling stations, which according to respondent No,5, was "tangible proof of rigging apparent on the face of record". In response to such order, a notification was issued by the Election Commission of Pakistan on 5-3-2008 for re-polling at 25 polling stations on 13-3-2008. However, a day thereafter, addition of two other polling stations was also made probably at the request of respondent No,1, thereby increasing the number of polling stations for re-polling from 25 to 27.
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7. When the process of re-polling in terms of order of Election Commission's dated 4-3-2008; followed by notification dated 5-3-2008 was in progress, the petitioner 'challenged such order of the Election Commission of Pakistan against him before the Islamabad High Court, Islamabad vide Writ Petition No,89 of 2008, thereby seeking a declaration in his favour that the order dated 4-3-2008 passed by respondent No,5 was illegal as he was the validly elected and successful candidate from PS-15 Jacobabad-III, for which immediately notification shall be issued by respondent No,5. 8. Upon filing of such petition, vide order dated 11-3-2008, re-polling ordered by the Election Commission of Pakistan, vide order dated 4-3-2008, was stayed by Islamabad High Court. However, such order was challenged by respondent No,1 before the Supreme Court of Pakistan by way of civil petition for leave to Appeal No,360 of 2008 Re: Mir Hassan Khoso v. Election Commission of Pakistan and others), which petition was disposed of by this Court, vide its order dated 28-3-2008, in the following terms:- "(3) After hearing the learned counsel for the parties, we find that the point raised hereinabove involving interpretation of certain provisions of the Constitution and Representation of the People Act, 1976, is of first impression and requires authoritative pronouncement. Notice is therefore, issued to the Attorney General for Pakistan. (4) Learned counsel for the private respondent No,4 at this stage after arguing the case at some length, on instructions from his client, requested that he may be permitted to withdraw the writ petition pending before the Islamabad High Court as he intends to file a petition before the High Court of Sindh at Karachi. ' In view thereof, subject, to all just exceptions, the petitioner may' withdraw the writ petition titled Dr. Sohrab Ahmad Khan Sarki v. Election Commission of Pakistan and others (W.P. No,89 of 2008) pending before Islamabad High Court and the same as per his request shall be deemed to have been withdrawn. In consequence thereto, the injunctive orders passed therein which are subject matter of his petition, are hereby set aside and order passed by the Election Commission of Pakistan shall hold the field. However, the petitioner is at liberty to choose his remedy before the appropriate forum in accordance with law. (6) The question regarding the territorial jurisdiction of the Islamabad High Court in the Federal set up, is under consideration in an identical case already referred to the larger Bench. This petition to the extent of question of jurisdiction of Islamabad High Court shall be heard along with the said petition." 9. Faced with this situation, the petitioner immediately preferred Constitutional Petition No,D-614 of 2008 before the Sindh High Court, Karachi, with the following prayers:- "In view of the above facts and grounds, it is, therefore, respectfully prayed on behalf of the petitioner above named that this honourable Court may graciously be pleased to pass order as under and issue appropriate writ:- I. To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 for re- polling in 25 polling stations and Notification dated 6-3-2008 for re-polling on two more polling stations (total 27 polling stations), issued by the learned respondent No,5 is absolutely illegal, void ab initio, in complete violation of Articles 219, 225 of the Constitution of Islamic Republic of Pakistan, hence liable to be declared nullity in the eyes of law. II. To declare that the impugned order dated 5-3-2008 as well as the Notification dated 5-3-2008 and 6-3-2008 are in complete negation of section 103AA, hence liable to be set aside. III. To declare that the impugned order dated 5-3-2008 as well as the Notification dated. 5-3-2008 and 6-3-2008 for re- polling, are in complete violation of section 52 of the Representation of the People Act, 1976, read with Article 225 of the Constitution, hence liable to be set aside. IV. To declare that the impugned order dated 5-3-2008 as well as the Notifications dated 5-3-2008 and 6-3-2008 for re-polling issued by the respondent No,5 are also violative of the rules laid down by the Hon'ble Supreme Court of Pakistan in the famous cases of Javed Hashmi and Ghulam Mustafa Jatoi and the principles laid down in the aforesaid judgments in terms of Article 189 of the Constitution was also binding on the respondent No,5, hence the impugned order dated 5-3-2008 as well as the Notifications for repotting dated 5-3-2008 and 6-3-2008 are also violative of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. V. Direct the respondent No,5 to immediately issue the notification declaring the petitioner as return/winning MPA from Provincial Assembly Sindh Constituency No,PS-15,, Jacobabad-III and consequently allow the petitioner and his party (PML-Q) to avail the right of choosing candidates for reserved/special seats for minorities, ladies, etc. VI. Grant such other/better relief which this honourable Court may deem fit and proper under the circumstances of the case;
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VII. Costs of the petition." 10. However, during the pendency of this petition, re'-polling at 27 polling stations, as ordered by Election Commission of Pakistan, vide its order dated 4-3-2008, was held on 12-4-2008, and in that process of re- election for PS-15, respondent No,1, having secured 39590 votes, was declared returned candidate and accordingly such notification was issued by the Election Commission of Pakistan on 16-4-2008. 11 In the above background of the matter, C.P. No,D-614 of 2008, which was already pending, was heard by a Division Bench of Sindh High Court and it was dismissed, vide short order dated 11-4-2008, which reads as under:-- "For reasons to be recorded later on, in view of the dictum of the Hon'ble Supreme Court of Pakistan in CPLA No,360 of 2008, whereby the impugned order of Election Commission of Pakistan holds the field, petition does not seem to be sustainable in law, hereby stands dismissed in limine along with the listed application." 12. Perusal of case record further reveals that after such short order, on 26-4-2008, the two honourable Members of the Bench recorded their separate reasons in support of such short order, which have been subsequently placed record before us, vide C.M.A. No,1148 of 2008. 13. Perusal of these orders/reasons reveal that firstly, the order dated 28-3-2008, passed by this Court was misread and totally misunderstood by the two honourable Judges of the Division Bench, as also evident from the language of the short order. The language of this order makes it abundantly clear that protection to the order of the Election Commission of Pakistan dated 4-3-2008 was subject to other remedy, in accordance with the law, available to the petitioner in that regard, and secondly, they wholly failed to advert to the relevant factual aspects of the case as hereinafter discussed. 14. Khawaja Shams-ul-Islam, learned counsel for the petitioner arguing this petition vehemently contended that there was absolutely no tangible and reliable material available before the Election Commission of Pakistan, which could have justified fits exercise of jurisdiction under section 103AA of the Act 1976 for passing the impugned order, which is arbitrary, unjust, capricious, and against all judicial norms, inasmuch as, great injustice was done to the petitioner, who, as a result of this order, was deprived of more than 38800 votes secured by him in the elections held on 18-2-2008, while, on the other hand, respondent No,1 was deprived of only 882 votes. Making specific reference to the reasons assigned in the order of the Election Commission of Pakistan, dated 4-3-2008, learned counsel further contended that in the constituencies, where populations are divided on tribal basis or ethnic basis or on affiliations with political parties, it was not at all abnormal that at some polling stations/booths one candidate would secure/manage large number of votes cast and outclass his opponent, therefore, this fact alone could not have been made basis for non-suiting the petitioner by ordering re-polling on selected 27 polling stations of the choice of respondent No,1, where petitioner has admittedly secured maximum number of votes. To add force to his submissions, learned counsel also made reference to the results of other polling stations where during the same polling, held on 18-2-2008, similarly respondent No,1 had secured large number of votes and out classed the petitioner. In this regard he made specific reference to Polling Stations Nos. 27, 28, 29 and 30, 33, 38, 44, 62, 94, 99, 1150, 101 and many other polling stations of PS-15, to show that on these polling stations the votes secured by the petitioner were less than 1% of the vote cast, but this abnormal situation, being favourable to respondent No,1, was entirely overlooked by the Election Commission of Pakistan. The crux of the submissions of the learned counsel in making comparison of these facts and figures available on the record was that there was absolutely no rationale, reasonable classification or equitable basis for the Election Commission of Pakistan in ordering re-polling only at 27 polling stations of the constituency PS-15 Jacobabad-III, which was done solely at the behest and suggestion of respondent No,1 and at his choice. 15. On the other hand Mr. Ibrar Hassan, learned counsel for respondent No,1, at the outset, strongly challenged the maintainability of this petition, as according to him, after declaration of official election results by the Election Commission of Pakistan on 16-4-2008, the only remedy available to the petitioner was by way of election petition under section 52 of the Act 1976, before the Election Tribunals constituted under section 57 (ibid), which remedy was also availed by the petitioner, but such petition was dismissed being time barred. He further contended that the learned Division Bench, of the Sindh High Court has dismissed the petition of the petitioner by impugned judgment, inter alia, for the reason that the honourable apex Court, while making disposal of C.P.L.A. No, 360 of 2008, has specifically observed that the order dated 4-3-2008, passed by Election Commission of Pakistan holds the field, therefore, the Division Bench of Sindh High Court
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was fully justified in maintaining such order in favour of respondent No, 1. However learned counsel, when confronted with the factual aspects of the case emerging from the material placed on record vis-a-vis the observations of respondent No,5 contained in its order dated 4-3-2008, could not offer any satisfactory answer as. To upon what basis, formula or facts, while exercising its summary jurisdiction under section 103AA of the Act 1976, respondent No,5 had ordered firstly, re-polling at selected 25 polling stations, and on the next day, with the addition of two more polling stations at 27 polling stations at the suggestion of learned counsel for respondent No, 1 . More so, as the observations that "abnormal percentage of votes cast being tangible proof of rigging apparent on the face of record" was belied and contradicted from the results of large number of other polling, stations, where similar position had emerged in favour of respondent No,1, who was, otherwise, the losing candidate in the elections held on 18-2-2008. Learned counsel also could not offer any satisfactory explanation as to how and at whose behest the order dated 4-3-2008 ordering re-polling at 25 polling stations was changed by addition of two more polling stations in the absence of, the petitioner and his counsel. 16. Replying to the question of maintainability raised by learned counsel for respondent No,1, Khawaja Shams-ul-Islam contended that the remedy against the impugned order of the Election Commission of Pakistan dated 4-3-2008, was not available to the petitioner before the Election Tribunals, which were constituted after general election through out all the four Provinces on 18-2-2008, but as a matter of fact, this contention of Mr. Abrar Hassan was conversely applicable to the case of respondent No,1, who had filed Constitutional Petition No,324 of 2008, before the Sindh High Court, prior to the filing of petition under section 103AA of the Act 1976 and during the pendency 'of such Constitutional petition. In this regard, he also made specific reference to the material placed on record relating to said petition No,D-324 of 2008, which shows that the said petition was presented before the High Court of Sindh on 25-2-2008, and remained pending uptill 16-4-2008, when it was withdrawn, and during this period several interim orders were passed by the High Court from time to time to safeguard the interest of respondent No,l. 17. We have carefully considered the arguments advanced before us by the parties counsel, and minutely scanned the material laced on record by the parties. From the facts noted above, which have been divulged from the material placed on record by the parties, it is evident that at one stage of the proceedings before the High Court, both, the petitioner and respondent No,1 were claiming themselves to be the winning candidates during the elections held on 18-2-2008 for PS-15, JacobabadIII However, at latter stage, they, particularly, respondent No,1, passively conceded to the fact that large scale rigging, mismanagement and mal-practices had taken place during such election process, but blamed rival candidates for this purposes. The fact about such rigging, mal-practic.Es and hooliganism. During the polling process at PS-1.5, Jacobabad-III was also confirmed from at least two independent sources, i,e, detailed report of the Returning Officer dated 26-2-2008 and the report of District Returning Officer dated 28-2-2008. In such circumstances the only point which remained open for consideration before respondent No,5 was as to whether such rigging, mal-practices and hooliganism, coupled with law and order situation has materially affected the election results of constituency PS-15, Jacobabad-III, if so, whether, in such circumstances, holding of re-polling at certain selected polling stations would serve the purpose to meet the ends of justice or re-election in the whole constituency was inevitable. 18. As will be seen from the order of respondent No,5, dated 4-3-2008, to redress the grievance of respondent No,1, course followed by them was firstly, to order re-polling on 25 polling stations, of which list was provided by learned counsel for respondent No,1, and thereafter to add two other polling stations for this purpose, that too without any notice or opportunity of hearing to the petitioner. In Order to properly understand and appreciate the consequences of such order,, it is necessary to reproduce hereunder in tabulation form the break-up of elections results firstly, when polling had taken place on 18-2-2008 (when the petitioner claimed to have won the elections by margin of about 15000 votes by securing 53812 votes), and thereafter on 12-4- 2008 (when respondent No, 1, as per official result and notification after re-polling at 27 polling stations, was declared successful by a margin of about 34,000 voles by securing 44989 votes). The three classified tabulations to highlight this position and to examine the total number of votes secured by the petitioner and respondent No,1, during such process read as under:-- Table `A'
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' Number of votes secured by the petitioner and respondent No. 1 on 18-2-2008 at the polling stations where re-polling was not ordered by respondent No.5. Sr. No.Polling Station No.Dr. Sohrab Khan Sarki (petitioner) Total votes securedMir Hassan Khan Khoso (res. No.1) total votes secured 1 1 110 379 2 2 47 226 3 3 144 573 4 96 504 5 5 137 502 6 6 339 230 7 7 106 161 8 8 342 322 9 9 160 167 10 10 75 325 11 11 201 231 12 12 158 222 13 13 130 127 14 14 325 383 15 15 65 260 16 18 167 228 17 21 141 169 18 22 175 205 19 24 87 223 20 25 124 108 21 26 65 114 22 27 1 1643 23 28 --- 1082 24 29 3 861 25 30 --- 1849 26 31 103 436 27 32 30 ' 450 28 33 12 880 29 34 134 225 30 35 21 678 31 37 32 172 32 38 10 1419 33 39 10 924 34 40 43 1140 35 41 406 687 36 42 213 89 37 43 189 487 38 44 5 577 39 45 21 870 40 46 10 521 41 47 206 585 42 48 405 179
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43 49 328 122 44 50 86 425 45 51 79 362 46 52 241 239 47 53 853 107 .48 54 722 63 49 55 630 640 50 56 75 250 51 57 75 207 52 58 643 9 53 59 184 205 54 60 81 145 55 61 65 518 56 62 2398 57 63 13 1273 58 64 15 570 59 66 65 277 60 77 27 1310 61--79 239 131 62 80 213 116 63 83 1000 47 64 84 625 51 65 85 447 1053 66 86 661 123 67 87 101 455 68 90 17 82 69 91 545 257 70 94 580 71 96 249 300 72 97 193 163 73 98 72 108 74 99 7 1565 75 100 1434 76 101 2009 77 104 935 30 78 105 475 24 Total15009 39061 Table `B' ' Number of votes secured by the petitioner and respondent No. 1 on 18-2-2008 at the 27 polling stations where re-polling was ordered by the respondent No.5, vide its order dated 4-3-2008. Sr. No.Polling Station No.Dr. Sohrab Khan Sarki…
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