Following is the text of the order issued by the chief election commissioner:

1. The dispute in these proceedings relates to holding of bye-elections in the following National and provincial assembly constituencies held on May 12, 2004, at Karachi:

1) NA-240 Karachi-II, 2) NA-243 Karachi-V, 3) NA-246 Karachi-VIII, 4) PS-127 Karachi-XXXIX

2. Section 9A of the Election Commission Order 2002, empowers the Election Commission to require the chief election commissioner or any of its members to exercise and perform all or any of its powers and functions under this order.

3. The Election Commission in its meeting held on Sept 25, 2002, vide Notification No. F.2(30)/2002-Cord., authorized the chief election commissioner to take decisions on behalf of the commission in matters of urgent nature, which emerge from day to day in connection with the conduct of forthcoming General Elections 2002. The bye-elections held at Karachi are a continuation of the elections.

4. The MMA has accused the MQM of committing grave irregularities in constituencies NA-240 Karachi-II, NA-243 Karachi-V and NA-246 Karachi-VIII, on the ground that their polling agents were not allowed to enter the polling stations, election offices (Intikhabi Camps) of their candidates were burnt; MQM workers forcibly tried to occupy the polling booths to cast bogus votes and resorted to firing at the MMA workers.

5. The MQM also lodged complaints of grave irregularities in all the three constituencies i.e., NA-240 Karachi-II, NA-243 Karachi-V and NA-246 Karachi-VIII, on the ground that MMA workers allegedly resorted to indiscriminate firing at their workers when they were sitting in their election camps and roamed about the polling stations duly armed and stopped MQM voters from casting their votes. The MQM has also alleged that in PS-127 Karachi-XXXIX, PPP's armed workers entered forcibly in polling stations and resorted to aerial firing, destroyed election camp, etc., whereas it is also alleged on behalf of Mr Umer Jat, a PPP candidate from PS-127 Karachi-XXXIX, that irregularities were also committed in the said constituency. In all, eighty complaints have been received on the polling day from the MMA and the MQM accusing each other of committing irregularities.

6. The complaints of firing incidents at some of the polling stations were also received in the Election Commission, which were immediately referred to the law-enforcement agencies at Karachi for immediate action by them.

7. The object of Section 103AA of the Representation of the People Act 1976 (hereinafter called the act) is to preserve sanctity of the ballot box, check a sense of frustration and restore faith of the electorate in entire election process.

The sanctity of the ballot box must be preserved in all its purity to restore the confidence of the electorate in the sanctity of the process, keeping in view the rationale of Section 103AA ibid and in view of the urgency of the matter, the chief election commissioner by order dated May 13, 2004, authorized, "Mr Justice Muhammad Sadiq Leghari, learned member Election Commission, to hold such summary enquiry as he may deem necessary at Karachi, after notice to all the contesting candidates in the said constituencies and also after notice to the home secretary and the provincial police officer, Sindh and after providing them an adequate opportunity of being heard, pass appropriate orders as he may deem fit in accordance with law. The summary enquiry proceedings shall be concluded within 15 days from its commencement."

8. These proceedings are being held to preserve sanctity of the ballot box to examine whether the polls in any of the constituencies during the bye-elections at Karachi are vitiated by grave illegalities or violation of law or the rules.

9. The Election Commission in its meeting held on May 15, 2004, approved the order dated May 13, 2004, passed by the chief election commissioner entrusting the case to Mr Justice Muhammad Sadiq Leghari to hold an inquiry into the alleged grave irregularities in the conduct of the bye-elections in constituencies NA-240 Karachi-II, NA-243, Karachi-V, NA-246 Karachi-VIII and PS-127 Karachi-XXXIX. It was also decided that on conclusion of the proceedings, the record thereof shall be placed before the Election Commission for decision in accordance with law.

10. The Election Commission through another order on May 15, 2004, delegated its powers and functions under Section 103AA of the act to the chief election commissioner and the learned members of the commission as per details given therein.

11. There is, therefore, no merit in the submission of Mr A. Iqbal Qadri, advocate appearing on behalf of Mr Abdul Waseem, contesting candidate from NA-243 Karachi-V, as well as the other contesting candidates namely, Mr Muhammad Abid Ali Khan Umang (MQM) from NA-240 Karachi-II, Mr Nisar Ahmad Panhwar (MQM) from NA-246 Karachi-VIII, and Mr Yousaf Munir Sheikh (MQM) from PS-127 Karachi-XXXIX that the proceedings under Section 103AA ibid could only be initiated by the commission and not singly either by the chief election commissioner or a member.

12. Be that as it may, the order of the chief election commissioner dated May 13, 2004, was approved by the Election Commission in its meeting held on May 15, 2004. All the members have been delegated with the powers under Section 103AA ibid on May 15. The commission is now seized of the matter. The preliminary objection, therefore, cannot succeed.

13. Dr Qazi Khalid Ali, additional advocate-general Sindh, appearing on behalf of the additional chief secretary (Home), government of Sindh and on notice from the commission has also made a preliminary submission that stay of declaration of results is not called for till the enquiry is concluded by the commission and a finding is recorded as to the alleged commission of grave illegalities during the bye-elections.

He also submitted that to stay the declaration of results at this stage would have the effect of rendering the constituencies un-represented in the legislative bodies.

In support of his contention he has relied on the Kunwar Khalid Younus v. Federation of Pakistan case (PLD 2002 Karachi 209). A bare reading of the report would show that the division bench of the Sindh High Court in the case of Kunwar Khalid Younus (supra) was pleased to hold that "the power to grant interim relief is a necessary concomitant of the power to grant final relief, but it needs to be kept in view that such power or discretion is required to be exercised on sound judicial principles.

It is well settled that in election matters such power is very sparingly exercised in 'exceptional circumstances' particularly against a returned candidate...".

14. In the case in hand, there are allegations of grave irregularities by the contesting candidates from the MQM and contesting candidates of the MMA as well as the PPP candidate from PS-127 Karachi-XXXIX.

The withholding of publication of results in the instant case, therefore, comes within the purview of 'exceptional circumstances' as highlighted in the case of Kunwar Khalid Younus (supra), which we respectfully follow.

It is, therefore, not a fit case for vacation of interim order withholding publication of results pending final decision of the inquiry. The prayer for vacation of interim stay is rejected.

REQUEST FOR ADJOURNMENT