Chief Election Commissioner

P L D 1991 Journal 41 P L D 1991 Journal 41 [Chief Election Commissioner] Before Justice Naimuddin, Chief Election Commissioner, Pakistan In re: PETITION FILED BY SYED QAIM ALI SHAH JELLANI AND 31 OTHERS UNDER ARTICLES 218, 219 AND 220 OF THE CONSTITUTION READ WITH SECTIONS 3, 84 AND 85 OF THE SENATE (ELECTION) ACT, 1975 Constitutional Petitions Nos. 218, 219 and 220, decided on 3rd March, 1991. (a) Senate (Election) Act (LI of 1975)‑‑ ‑‑‑‑Ss. 3, 84 & 85‑‑‑Representation of the People Act (LXXXV of 1976), S. 29‑‑ Electoral Rolls Act (XXI of 1974), S. 7(5)‑‑‑Right of franchise ‑‑‑Connotation‑‑ Franchise in Senate Elections‑‑‑Right of Members of Provincial Assembly to elect Sanators. Right of franchise is a valuable right. Under the Constitution of Pakistan (1973) and the law a person is entitled to vote (1) if he is a citizen of Pakistan, (2) he is not less than 21 years of age; (3) his name appears on the electoral roll, and (4) he is not declared by a competent Court to be of unsound mind. Under section 29 of the Representation of the People Act, 1976 read with section 7(5) of the Electoral Rolls Act, 1974, a person who was detained in prison or held in other custody had been given the right to cast his vote in general elections through postal ballot. A country is respected in the comity of nations for its democratic polity and adherence to democratic principles. Therefore, it is unthinkable that any functionary of Government could unduly deprive a member of Provincial Assembly of his right of franchise in the Senate Elections. When thirty‑one Members of Provincial Assembly were anxious to exercise their right of franchise and each of them represented on an average about one hundred and twenty thousand voters, in accord with the spirit of the Constitution they would not be unlawfully deprived of this right. (b) Senate (Election) Act (LI of 1975)‑‑ ‑‑‑‑Ss. 3, 84 & 85‑‑‑Constitution of Pakistan (1973), Art. 218(3)‑‑‑Senate Election‑‑‑Casting of vote by those Members of Provincial Assembly who were not in judicial custody‑‑‑Assurance extended by Provincial Government to Chief Election Commissioner that prompt action had been taken on his directions for exercise of franchise by Members of Provincial Assembly who were not in custody‑‑‑Apprehensions of petitioners of deprivation of their right of franchise by Provincial Government though seemed to be unfounded yet in order to carry out mandate of Art.218(3) of the Constitution and to make such arrangements as were necessary to ensure that election to Senate was conducted honestly, justly, fairly and in accordance with law to guard against corrupt practice, Chief Election Commissioner directed Inspector‑General of Police to depute a Police Officer not below the rank of D.I.‑G. to escort Members of Provincial Assembly from place notified by counsel of petitioners to Provincial Assembly building on the date of election for casting their votes. (c) Senate (Election) Act (LI of 1975)‑‑ ‑‑‑‑Ss. 3, 84 & 85‑‑‑Constitution of Pakistan (1973), Art. 218(3)‑‑‑Election of Senate‑‑‑Casting of votes by Members of Provincial Assembly‑‑‑Request for appointment of an officer of Federal Law Enforcing Agency for purpose of escorting Members of Provincial Assembly to Provincial Assembly building declined by Chief Election Commissioner for the reason that law and order was Provincial subject and that such appointment would show no‑confidence in the functionaries of Provincial Government when they had done nothing to show lack of confidence in them. (d) Senate (Election) Act (LI of 1975)‑‑ ‑‑‑‑Ss. 3, 84 & 85‑‑‑Constitution of Pakistan (1973), Art. 218(3)‑‑‑Election of Senate‑‑‑Casting of votes by Members of Provincial Assembly‑‑‑Apprehension of arrest‑‑‑Petitioners' request that if Provincial Government was to arrest any member of Provincial Assembly on or before day of casting votes, it shall intimate such fact to Provincial Election Commissioner, was turned down by Chief Election Commissioner being without cogent reasons. (e) Senate (Election) Act (LI of 1975)‑‑ ‑‑‑‑Ss. 3, 84 & 85‑‑‑Constitution of Pakistan (1973), Art. 218(3)‑‑‑Election of Senate‑‑‑Casting of votes by Members of Provincial Assembly who were in custody‑‑‑Application of such members seeking permission of concerned Courts for casting their votes‑‑‑Provincial Government giving undertaking that prosecutors incharge of cases would be instructed not to oppose such applications‑‑‑Such statement would completely satisfy those petitioners who were accused of substantive offences and were detained in prison. Iqbal Haider with Rasheed Akhund, Raza Rabbani and Imdad Awan for Petitioners. Aftab Akhund, A.‑G. Sindh for Respondent. Date of hearing: 26th February, 1991. ORDER This order may be read with conjunction of my order dated 26th February, 1991. 2. This is a petition by Syed Qaim Ali Shah Jellani under Articles 218, 219 and 220 of the Constitution read with sections 3, 84 and 85 of the Senate (Election) Act, 1975. There is another joint petition signed by 32 members of the Provincial Assembly of Sindh including Syed Qaim Ali Shah Jellani. There is yet a third petition by Mr. Manzoor Wassan, M.P.A., who is confined in Sukkur jail. All these petitions were heard together on 26th February, 1991 on four dates i.e. 23‑2‑1991, 24‑2‑1991, 25‑2‑1991 and 26‑2‑1991, when Mr. Iqbal Haider and Mr. Rasheed Akhund, Advocates, made the following proposals in substitution of the prayers made in the petitions:‑‑ (i) That on the morning of 13th March, 1991 all the MPAs of PDA will assemble at a place which will be communicated by the Advocates named above to the Provincial Election Commissioner in writing and from that moment onwards escort of the Federal Government will be provided to the MPAs until they cast their votes on 14th March, 1991, for safe passage to the Sindh Assembly building. (ii) On the date of scrutiny, which is 2nd March, 1991 P.D.A. M.P.As. who have proposed or seconded the nomination papers also be provided similar protection. (iii) Production of those M.P.As. of P.D.A. who are under‑trial prisoners will be ensured on the date of election i.e. 14th March, 1991, in Sindh Assembly building. (iv) If the Sindh Government arrest any M.PA. of P.D.A. on or before 14th March, 1991 they will intimate it to the Provincial Election Commissioner immediately. 3. The petitioners according to the report filed on behalf of the Inspector General of Police, Sindh by the learned Advocate‑General, Sindh alongwith his counter‑affidavit can be divided into three groups. In the first group are:‑‑ (1) Mr. Lal Bux Bhutto. (2) Haji Khan Chachar. (3) Mr. Abdus Sattar Leghari (Sariwal). (4) Mr. Abdul Hakim Baluch. (5) Mr. Hanif Soldier. In second group are:‑ (1) Jam Mumtaz Hussain. (2) Mr. Taj Muhammad Sheikh. (3) Haji Munawwar Ali Abbasi. (4) Mr. Sahib Dino Khan Gaho. (5) Dr. Makhdoom Rafiq Zaman. (6) Mir Manzoor Ali Panhwar. (7) Pir Ghulam Shah Jellani. (8) Syed Mohsin Shah. (9) Pir Ali Bahadur Shah. (10) Mr. Abdul Khalique. (11) Mr. Abdul Haleem Pirzada. (12) Mir. Munawwar Ali Talpur. (13) Mr. Bashir Hussain Leghari (14) Agha Tariq. (15) Mr. Hari Ram. (16) Haji Amir Bux Junejo. (17) Pir Mazharul Haq. (18) Haji Abdul Ghafoor Nizamani (19) Mr. Nisar Ahmed Khuro. (20) Pir Syed Noor Shah. (21) Mr. Abdul Ghani Daras. (22) Mir Nadir Khan Magsi. (23) Mir. Hasan Khoso. (24) Mr. M. Siddique Shoro (25) Mr. Ali Nawaz Shah. And in the third group are:‑‑ (1) Syed Qaim Ali Shah Jellani. (2) Mr. Khawaja Muhammad. (3) Mr. Manzoor Wassan. (4) Mr. Ali Muhammad Hingoro. (5) Mr. Ghulam Hussain Unnar. 4. About the first group the stand of the Government of Sindh on 24‑2‑1991 was that they were neither then in police custody nor have they been arrested in any criminal case. They were also not wanted as upto that date. As regards the second group the stand of the Government was that these MPAs were neither till then arrested nor were they wanted in any criminal case as upto 24‑2‑1991. As regards the third group the case of the Government is that they have been arrested/wanted in substantive cases registered against them as detailed in the report of the Inspector‑General of Police, Sindh which is placed on record. 5. The anxiety of all these M.P.As. is that they should be free to participate in the elections to the Senate which are due to be held on 14‑3‑1991. They apprehend that they would not be allowed by the Government to cast their votes m favour of the candidates of their choice. But the Government, in its counter -affidavit filed by Mr. Javed Ishrat, Deputy Secretary (Police), Home Department, has denied these allegations and stated that "apprehensions expressed therein are absolutely unfounded and are based on surmises and conjectures. The allegations are vehemently denied as being false, frivolous and aimed at creating sensationalism." The learned Advocate‑General has also pointed out that on directions received from the Chief Election Commissioner under Articles 218(3) and 220 of the Constitution the Secretary to the Government of Sindh, Home Department, had already directed all the Divisional Commissioners, Karachi/Hyderabad/Sukkur/Larkana to make adequate arrangements to enable the members of the Provincial Assembly to participate freely in the Senate Elections due to be held on 14‑3‑1991 in accordance with the Constitution and law. They have been further directed to make all necessary arrangements accordingly under intimation to that Department. In spite of this direction the learned Advocates for the petitioners as submitted by them, apprehend that the petitioners would be prevented from exercising their right of franchise in the Senate Elections due to be held on 14‑3‑1991. 6. Now, as regards the persons involved in substantive offences the learned Advocates for the petitioners submitted that they have already submitted applications to the Courts in which their cases are pending for direction to the Government to bring the said petitioners to the Provincial Assembly building to cast their votes on 14‑3‑1991. Learned Advocate‑General also submitted that that would be the proper course. I agree. I have no doubt that the Courts concerned would pass appropriate orders in time on the applications in this regard submitted to them. At this stage, however, I may state that the right of franchise is a valuable right. Under our Constitution and law a person is entitled to vote (1) if he is a citizen of Pakistan, (2) he is not less than 21 years of age, (3) his name appears on the electoral roll and (4) he is not declared by a competent Court to be of unsound mind. Under section 29 of the Representation of the People Act, 1976 read with section 7, subsection (5) of the Electoral Rolls Act, 1974, a person who is detained in prison or held in other custody has been given the right to cast his vote in General Elections through postal ballot. We are respected in the comity of nations for our democratic polity and adherence to democratic principles. Therefore, it is unthinkable that any functionary of Government can unduly deprive a member of Provincial Assembly of his right of franchise in the Senate elections. It would be pertinent if I quote unforgettable words of Sir Winston Churchill judicially noted. These are: "At the bottom of all tributes paid to democracy is the little man, walking into a little booth. with a little pencil, making a little cross on a little bit of paper‑‑ no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of the point." 7. Here are 34 M.P.As, who are anxious to exercise their right of franchise. Each of them represents on an average about one hundred and twenty thousand voters. I am sure that in accord with the spirit of our Constitution no one shall unlawfully deprive !them of this right, for, in the words of a great statesman: "all power is a trust‑‑ that we are accountable for its exercise‑‑ that, from the people and for the people, all springs, and all must exist." 8. Now, I would deal with the reliefs claimed. So far those MPAs who are not in judicial custody, I feel that in view of the assurance extended by the Provincial Government and prompt action already taken on my directions mentioned hereinabove, the apprehensions of the petitioners seem to be unfounded. Yet in order to carry out the mandate of Article 218(3) of the Constitution and make such arrangements as are necessary to ensure that the election to the Senate is conducted honestly, justly, fairly and in accordance with law, and corrupt practice is guarded against, I would direct the Inspector‑General of Police, Sindh to depute a Police Officer not below the rank of a D.I.‑G. to escort the M.P.As. whose place' of stay is notified to him by Mr. Iqbal Haider and/or Mr. Rasheed Akhund, the Advocates of the petitioners, to the Sindh Provincial Assembly Building in Karachi on 14‑3‑1991 for casting their votes in Senate Elections. The Advocates named above will inform the Inspector‑General of Police latest by 3‑00 p.m. on 13‑3‑1991 so that he could make the proper arrangements for escorting the M.P.As. to Provincial Assembly Building to enable them to cast their votes during polling hours. I would also direct the Deputy Election Commissioner, Head Quarters, Mr. K.M. Dilshad, to accompany the police officer from the place of stay of MPAs to the Sindh Assembly Building and see that those M.P.As are free to cast their votes in the Senate Elections on 1.1‑3‑1991 The Advocates named above will also inform the Provincial Election Commissioner, Sindh by 3‑00 p.m. on 13‑3‑1991. I have not accepted the request for appointment of an officer of federal law enforcing agency for the purpose of escorting the Members of Provincial Assembly to the Provincial Assembly building for the reason, firstly, law and order is the provincial subject, secondly, this will show non‑confidence in the functionaries of the Provincial Government‑ when they have done nothing which, in my opinion, requires me to show lack of confidence in them. Similar arrangement was sought to be made on 2nd March, 1991, which was the date of scrutiny of nomination papers, for the M.PAs. of P.DA. who have proposed or seconded the nomination papers. This prayer has become redundant as nomination papers have already been scrutinised. But, it shows that the apprehension in this regard was not well‑founded as no complaint was made on 2nd March, 1991 that any of the M.P.A. of P.D.A. who has proposed or seconded the nomination papers of P.D.A. candidate was prevented by any officer of the Government from attending the scrutiny, though I remained present through the process of scrutiny in my office which is opposite to the office of Provincial Election Commissioner where scrutiny was being held. As regards the third prayer the proper course has already been indicated. In support of the fourth prayer, that is, if the Sindh Government arrest any member of the P.D.A. on or before 14‑3‑1991, they will intimate it to the Provincial Election Commissioner immediately, I do not think such a direction is called for or can be issued just for asking without any cogent reasons. 9. All the petitions are disposed of in above terms. (Justice Naimuddin), Chief Election Commissioner, Karachi, the 3rd March, 1991. After 'I passed the above order but before I announced it, learned Advocate‑General, Sindh has filed the following statement:‑‑ "The Provincial Government will have no objection if the M.P.As. who are in custody and facing trial before the Courts on substantive charges are permitted by the concerned Courts on the applications moved in this behalf to cast their votes in the ensuing Senate Elections. The Prosecutors Incharge of the cases will be instructed not to oppose such applications." The above statement should completely satisfy the petitioners with regard to the relief claimed in respect of the M.P.As. accused of substantive offences who are detained in prison. However, it shall be treated as part of this order. A.A./A‑55/E Order accordingly.