P L D 2009 Karachi 129 (PLP)

DR. RANA MUHAMMAD SHAMIM, J.

Learned counsel for the petitioner submits that the petitioner contested election as a member of National Assembly from Constituency of NA 208, Jaccobabad-I, Sindh. The elections were held on 18-2-2008 and after election in non-official results as well as in official results he was declared as unsuccessful candidate by the respondents Nos.1 to 3 whereas the respondent No.8 was declared returned candidates. He submits that approximately 42,000 bogus votes were polled by the respondent No.8 in his favour. He further submits that the respondent No.8 with active assistance of polling personnel of different polling stations arranged Ballot Papers which were subsequently recovered from his possession. The said recovered ballot papers were found duly stamped in favour of the respondent No.8 with intention to use in his favour. He also alleged that on the election day the respondent No.8 arranged deceitfully more than 15000 blank ballot papers from the Presiding Officers in Ghari Khairo which were later on duly stamped and used in his favour and stepped in ballot boxes. He also submits that the respondent No.8 also got arranged over 10,000 identity cards of fake voters which were subsequently utilized at Polling Stations Nos. GPS-93, GPS-94, GPS-95, and GPS-96 in his favour. He submits that the result sheet so provided clearly established about rigging the election on the polling day by the respondent No.8 with the assistance of the Presiding Officers. He prays that the respondents Nos. 2 to 4 be restrained from announcing the official results and be further directed for re-polling in Constituency No.NA-208 Jaccobabad-I, Sindh. We have heard the learned counsel for the petitioner. In our considered view the petition is not maintainable as the official results have already been announced and notified by the respondent No.1. Consequently respondent No.8 was declared returned candidate from the Constituency N.A.208 Jaccobabad-I. Further the question of disputed facts are involved in this petition which requires recording of evidence. The factual controversies could not be decided by this Court in exercise of its writ jurisdiction under Article 199 of the Constitution. While saying so, I am fortified by judgment in a case of Mian Muhammad Nawaz Sharif v. President PLD 1993 SC 473 and a case of Election Commissioner v. Javed Hashmi PLD 1989 SC 396 wherein the Hon'ble apex Court has held that once process of election commences, the disputes related to election are to be challenged before the Election Tribunal under Article 225 of the Constitution. Eight Honourable Judges of this Court have been nominated as members of the Election Tribunals, therefore, proper and efficacious remedy is available with the petitioner to approach the said Election Tribunals. In case the Election Tribunals are not constituted, petitioner may approach the respondent No.1 for redressal of his grievance, if so desires. The petition is dismissed in limine along with listed applications. FARRUKH ZIA G. SHAIKH, J.

With profound respects to my learned, Honourable, Senior Law Lord, for reasons mentioned herein below, I allow this constitutional petition.

1. Granted.

2. Granted subject to all just exceptions. 3&

4. It is contended by the learned counsel for the petitioner that the petitioner contested election as a candidate of PML(Q) from NA 208, Jaccobabad-I, Sindh and the respondents Nos. 8 to 18 are the remaining candidates from the said constituency. It has been pointed out by the above mentioned counsel that there have been grave irregularities, fraud and misrepresentations on the polling day and as a consequence thereof F.I.R. No.6 of 2008 had been lodged at Police Station Garhi Hassan against the culprits who had rigged the elections, therefore, I declare the election of Constituency No.208 Jaccobabad-I, Sindh as null and void, and order for re-polling and re-election of the said constituency with direction to Law-Enforcing Agencies to take all necessary preventive measures to ensure the conduct of the election as free, fair, transparent and peaceful. I also direct the Election Commission of Pakistan i.e. respondent No.1 to announce the date of re-election in the Constituency No.208 Jaccobabad-I, Sindh, denotifying result of the constituency if the same is announced by the Commission. I also restrain the respondent No.1, its agents, its servants, subordinates, employees and anybody else acting through or under it from notifying the name of respondent No.8 as returned candidate or otherwise allowing the respondent No.8 to take oath as returned candidate to the Constituency, NA-208 Jaccobabad-I, Sindh. COURT ORDER Since we have different views i.e. the petition is dismissed in limine by me (Dr. Rana Muhammad Shamim J.) and his Lordship Mr. Justice Farrukh Zia G. Shaikh, has allowed the petition, same may be referred and placed before Honourable Chief Justice for appointment of a Referee Judge. KHAWAJA NAVEED AHMED, J.

This matter has been placed before me in chamber with the conflicting judgments of my brother Judges Mr. Justice Dr. Rana Muhammad Shamim and Mr. Justice Farrukh Zia G. Shaikh. I have perused the judgments of both the learned Judges. Now the notification in respect of success of the respondent Mir Ijaz Hussain Jakhrani, the returned candidate of the Pakistan Peoples Party Parliamentarian has been made and he has already taken oath in the Assembly and is attending the National Assembly Session. He has given vote for the election of Prime Minister, Speaker and Deputy Speaker. In the circumstances in my humble opinion this petition has become infurctuous. However, since I have been asked to give my opinion. I agree with the opinion of Mr. Justice Dr. Rana Muhammad Shamim, which is based on the case law reported in PLD 1993 SC page 473 Mian Muhammad Nawaz Sharif v. President of Pakistan and case reported in PLD 1989 SC page 396, Election Commissioner v. Javed Hashmi. Without touching the merits of the case I am of the considered view that the petitioner can agitate all the points mentioned in the present petition before Election Tribunal specially constituted for this purpose. With above observation C.P. No.D-91/2008 (Sukkur) is disposed of. M. H/F-49/K Petition dismissed.