KARACHI, June 16: An election tribunal has fixed June 18 for arguments on an application moved by an MMA candidate for staying the June 23 byelection in the National Assembly constituency NA-255 (Karachi-XVII).

The seat fell vacant owing to the death of MNA Mahmood Ahmad Qureshi of the MQM (Haqiqi). Defeated MMA candidate Aslam Mujahid, who is also contesting the byelection, had filed a petition against Qureshi, which was proceeding ex parte because of the MNA’s failure to appear on three successive dates.

When the Election Commission announced the byelection, Mujahid moved a writ petition against the announcement and an SHC division bench directed the tribunal to dispose of the election petition before the June 23 by-poll.

As the election petition came up before the tribunal, comprising Justice Moosa K. Leghari of the Sindh High Court on Monday, Advocate Junaid Farooqui, petitioner’s counsel, submitted an application that the byelection be stayed to facilitate recording of evidence and adjudication of the matter.

He said the proceedings were unlikely to conclude before June 23. Justice Leghari issued notice of the application to AAG Qazi Khalid Ali and Election Commission counsel, Ahmed Ali Halepota, and fixed Wednesday for arguments.

AAG Khalid Ali and advocate Halepota earlier submitted that under Article 224 (4) of the constitution, when a seat in any assembly had become vacant not later than 120 days before the term of that assembly was due to expire, an election to fill the seat must be held within 60 days from the occurrence of the vacancy.

The provision was mandatory and the Election Commission accordingly scheduled the byelection within 60 days of MNA Qureshi’s death.

The provision was peremptory and made no exemption in respect of constituencies wherein election had been challenged and proceedings on the election petition were pending.

The AAG said once a constituency had been called upon to elect its representative, no judicial proceedings be allowed to stand in the way of balloting.

Citing the Supreme Court judgment in the 1988 Saifullah case, he said the apex court stopped short of reviving the wrongfully dismissed and dissolved Junejo government and assembly because a call had already been made to the electorate, the ultimate sovereign, to elect new representatives.

The petitioner (Mr Mujahid), he argued, had prayed for fresh balloting in NA-255 and the June 23 byelection met his demand.

It would provide him an opportunity to test his popularity and prove the claims made by him in his petition. A court order was no substitute to voters’ mandate, he submitted.

Advocate Farooqui maintained that the petitioner had also prayed that he be declared elected as winning candidate had bagged the seat by gross irregularities and he was entitled to it as the runner-up. The petition could proceed ex parte if there was no respondent to contest it, he said.

The AAG rejoined that a petitioner could win only on the strength of his own case and could not be declared elected by default. Like the prosecution in a criminal trial, he could not rely on the weakness of the respondents’ case. The petitioner, he contended, had produced no evidence to substantiate his allegations.