ORDER SHEET
IN THE HIGH
COURT OF SINDH BENCH AT SUKKUR
Constitution
Petition No.D-1426/2018
Date |
Order with signature of Judge |
Present
Mr.
Justice Muhammad Iqbal Mahar
Mr. Justice Amjad Ali Sahito.
Petitioner: Zia-ul-Hassan
lanjar, through Mr. Farooque H Naek,
Zamir Hussain Ghumro and Qurban Ali Malano, Advocates.
Respondents.
Respondent No.7, in person.
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-36 Naushero Feroz-IV,
Sindh, whereby the application for recounting of ballot papers of the P.S-36
was dismissed.
2. Briefly,
the facts are that the petitioner being runner-up with respect of General
Elections-2018 for PS-36 Naushehro Feroze-IV filed an application for
recounting of ballot papers which was turned
down by the respondent No.2 Returning Officer PS-36, Naushehro Feroze, being
aggrieved thereto instant petition has been filed.
3. Notices were served upon all the
respondents. Respondent No.7 being returned candidate
is present and submitted that he will argue his case. 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 that there were a total 161 polling station
inPS-36 and presiding officer only provided 61 polling station form-45 and rest
of them were not supplied to the polling agents; that the petitioner being runner-up
with respect of General Election-2018 of PS-36 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 45314 votes whereas returned candidate secured 47406 votes with
difference of 2092 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 hand respondent No.
7 Arif Mustafa Jatoi returned candidate
submits that From-49 has been supplied and available on the website of Election
Commission of Pakistan; that the result has
been consolidated and he is a 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 respondent No. 7.
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 as well as respondent No. 7
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 the 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 with directions that “ since the consolidation has been
completed in PS-36 Naushehro Feroze-IV and forum-49 has been received, therefore,
the applicant/petition may approach the appropriate forum through an Election
Petition, if so advised”.
8. Then the petitioner impugned order dated
28-07-2018 passed by the Returning Officer before High Court Islamabad,
Islamabad vide writ petition No.3001 of 2018 re:
Zia-Ul-Hassan Lanjar 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 2092 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