ORDER SHEET

 

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Constitution Petition No.D-1428/2018

 

Date

               Order with signature of Judge

                            

                             Present

                                 Mr. Justice Muhammad Iqbal Mahar  

                            Mr. Justice Amjad Ali Sahito.

 

Petitioner:                Shiraz Shaukat Rajper, through           M/s.  Farooque H Naek, Zamir Hussain Ghumro and Qurban Ali Malano, Advocates.

 

Respondents.              Mr. A.R Faqooq Pirzada advocate for respondent No. 3.

                                      Mr. Liaquat Ali Shar, Addl: A.G.

                                      Mr. Oshaque Ali Sangi, D.A.g.

                                      Mr. A.D Sangi, Advocate for Election Commission of Pakistan.

 

Date of hearing.        09-08-2018.

Date of Decision.       09-08-2018.

 

O R D E R.

 

.-.-.-.-.-.-.-.-.-.-.-.-.

AMJAD ALI SAHITO, J.- The captioned petition is directed against the order dated 28-07-2018, passed by the Returning Officer P.S-29 Khairpur-IV, Sindh, whereby the application for recounting of ballot papers of the P.S-29 was dismissed.

2.      Briefly, the facts are that the petitioner being runner-up with respect of General Elections-2018 for PS-29 Khairpur-IV filed an application for recounting of ballot papers which was turned down by the respondent No.2 Returning Officer PS-29, Khairpur-IV, being aggrieved thereto instant petition has been filed.

3.      Notices were served upon all the respondents. Respondent No. 3 being returned candidate through his counsel filed counter affidavit. Learned DAG and learned counsel for the Election Commission of Pakistan failed to file any comments on behalf of respondents No.1 and 2.  In view of the urgency commenced, these respondents have not even made a request for time to file the comments and they straightaway to argue the matter.

4.      It is, inter-alia, contended by the learned counsel for the petitioner the petitioner being runner-up of PS-29 Khairpur-IV with respect of General Election-2018 filed an application to the returning Officer for recounting of ballot papers, which was turned down; that under section 95 (5) of the Election Act 2017, if the pre requisites are fulfilled, then it is mandatory for returning officer to order for recounting; that in the instant case all the pre-requisites provided in section 95 (5) were fulfilled; that that the petitioner moved an application to the Election Commissioner of Pakistan, which has been dismissed on the bases that the consolidation of result has taken place; that under 95 (5) the Returning Officer can order re count of the ballot paper before commencement of consolidation process, if margin of votes is less than 5% of the total votes polled in the constituency or 10,000 votes and the petitioner has received total 36234 votes whereas returned candidate secured 37133 votes with difference of 899 votes. He, therefore prays, that petition may be allowed, the impugned order passed by the returning officer may be set-side with directions to returning Officer to recount the ballot paper.

5.                On the other, learned counsel for respondent No.3 submits that From-49 has been supplied and available on the website of Election Commission of Pakistan; that the result has  been consolidated and respondent No. 3 has been declared as successful candidate; that the petitioner has also moved an application  for recounting of ballot papers before Election Commission of Pakistan and same was dismissed with direction to appear before appropriate forum through an Election Petition, the petitioner has right to approach before the Election Tribunal and near future the election tribunal will be appointed, he lastly prayed for dismissal of the petition.

6.                Learned counsel for Election Commission of Pakistan supports the impugned order passed by the returning officer. Learned DAG adopted the arguments made by the counsel for respondent No. 3. However, learned Additional Advocate General has adopted the arguments of the learned counsel for the petitioner.

7.                We have considered the submissions of the learned counsel for the parties and have gone through the material available on the record. From a perusal of the record, it reveals that the petitioner has filed an application for recounting of the ballot papers to the Returning Officer, but said application was dismissed vide order dated 28-07-2018. The petitioner moved another application to the Election Commission of Pakistan on 28-07-2018 and said application was dismissed by the Election Commission of Pakistan.

8.      Then the petitioner impugned order dated 28-07-2018 passed by the Returning Officer before High Court Islamabad, Islamabad vide writ petition No.3005 of 2018 re: Shiraz Shaukat Rajper Vs. Election Commission of Pakistan Islamabad, e.t.c. High Court Islamabad after hearing the parties, the petition of the petitioner was dismissed, as under:-

                   "5 The petitioners in Writ Petition No.3001/2018 and Writ Petition No.3004/2018 filed petitions before Election Commission of Pakistan and the others did not. The petitioners in Writ Petition No.3002/2018, Writ Petition No.3003/2018, Writ Petition No.3005/2018 and Writ Petition No.3045/2018, have challenged the order passed by the Returning Officer. Sindh the respective Returning Officers are beyond the territorial jurisdiction of this Court, hence, the petitions against them are not maintainable. In so far as Writ Petition No.3001/2018 is concerned, the Election Commission of Pakistan turned down the requests for recounting of the ballot papers on the ground that the results have been consolidated. The referred order/decision does not suffer from any error of law. It seems that the petition/appeal filed by the petitioner in Writ Petition No.3004/2018 is still pending. However, to the extent of recounting no order can be passed in the same as the results have been consolidated.

6.     In view of the above, the Writ Petitions No.3001/2018, 3002/2018, 3003/2018, 3005/2018 and 3045/2018 are dismissed, however, the petitioners may agitate the matter before the Election Commission of Pakistan by filing an appropriate petition under Sections 8 and/or 9 of the Elections Act, 2017 and in case of cogent grounds are made out, Respondent No.1 may consider the requests for deferring the issuance of notification with respect to the Constituencies in question. In so far as Writ Petition No.3004/2018 is concerned, the same is disposed of with the direction to respondent No.1 to decide the same in accordance with law".  Thereafter the petitioner filed an instant petition before this Court.

9.      Prima facie, the case of the petitioner is that he had resorted to remedy, provided by Section 95(5) and 95 (6) of the Act, as difference of votes was only 899 votes but both resulted in failure for reason that consolidation of result was done. A perusal of Section 95(5) of the Act shows that such exercise is subject to “Before commencement of the consolidation proceedings” and despite use of word ‘shall’ the discretion lies with the Returning Officer as such provision lasts as “Or the Returning Officer considers such request as not reasonable”. Even otherwise, the provision of Section 95(6) of the Act provides a direct remedy before ‘Commission’ but such remedy is again subject to “before conclusion of consolidation proceedings”. Since, it is a matter of record that the requests of the petitioner was turned down by the Election Commission of Pakistan in terms of Section 95 (6) of the Elections Act, 2017 while categorically holding that the result has been consolidated, therefore, the order/decision made by the Election Commission of Pakistan prima facie does not suffer from any error of law. Now, the results have been consolidated and Form-49 available on the website of Election Commission of Pakistan therefore, jurisdiction of this Court legally cannot be involved for recount which, per relevant law, was subject to before commencement of consolidation proceedings or consolidation of result as same otherwise is a closed transaction. Even otherwise, the controversy arises in this petition seems to be that whether consolidation of result was legal or otherwise?. This controversy, we would say, cannot be decided through constitution petition as same would require an inquiry because same may amount stepping into domain of Election Tribunal or least stepping out of constitutional jurisdiction which was/ is never meant for resolving a dispute requiring inquiry. Even otherwise, the Act itself provides a proper remedy in shape of Election petition where all questions may be raised. Therefore, it would be in all fairness to let things opened for determination by a lawfully constituted tribunal. The petitioner accordingly may approach the Election Tribunal for redressal of his grievance. Accordingly, this petition being devoid of merits was dismissed by short order dated               09-08-2018.  

 

                                                                                               Judge

                                                        Judge

 

Shafqat/P.A