KARACHI, Oct 30: The Sindh High Court told the Election Commission on Wednesday to notify the last remaining MNA-elect (Kunwar Khalid Yunus) and proceed with the election of reserved seats immediately.
Allowing a writ petition filed by the successful MQM candidate from NA-245 (Karachi-VII) for reasons to be recorded later, a division bench comprising Justices Sabihuddin Ahmed and Amir Hani Muslim directed the EC to “issue an appropriate notification notifying the petitioner as a returned candidate in terms of the count submitted by the returning officer...the elections to the seats reserved for women and minorities in the national assembly may be held immediately thereafter.”
The bench observed earlier in the course of proceedings that the intent of the law is that no constituency should remain unrepresented even for a day. Paradoxically, an ad interim order by the EC itself was standing in the way of completion of the lower house of parliament.
Assisting the court, Attorney-General Makhdoom Ali Khan submitted that a candidate who is declared by the returning officer to have secured the highest number of votes should be notified as a returned candidate pending any complaint or representation lodged with the EC.
The notification was all the more necessary because under the new election rules, women and minority seats are to be allocated to the various political parties in proportion to the general seats won by them.
The EC failed to file any counter-affidavit despite being served notice as the sole respondent, raising the presumption that the averments raised in the petition were true so far as it was concerned. The petitioner’s nearest rival, Syed Munawwar Hassan of Muttahida Majlis-i-Amal, who was added as a respondent on Tuesday filed a counter-affidavit on Wednesday morning.
The counter-affidavit disclosed that a complaint alleging widespread irregularities and seeking re-polling was made by Mr Hassan to the EC under Section 103AA of the Representation of People Act on Oct 16. The EC took note of ‘the allegations’, issued, without specifying a date, a notice to the winning candidate and decided to withhold his notification.
Appearing for the complainant, Advocates Raja Haq Nawaz, Muhammad Junaid Faruqui and Iqbal Aqeel argued that the EC had extraordinary power to pass an interim order without notice if an election is marred by gross and grave irregularities.
Representing the petitioner, Advocates K.M. Nadeem and Aftab Ahmed Shaikh submitted that irregularities alleged should be in the nature of facts floating on the surface to bring the EC into action. The allegations made by Mr Hassan, they said, required recording of evidence. In any case, the EC had no power to make an interim order without notice or even a summary inquiry. It was only through Mr Hassan’s counter-affidavit that the petitioner came to know of his complaint. He was issued no notice, even in response to his repeated queries.
Advocate Azhar Nadeem Siddiqui represented the federal government while advocates Mohammad Mustafa Hussain and Rizwan H. Nadeem assisted the petitioner’s counsel.
