17 July 2004	Saturday	28 Jamadi-ul-Awwal 1425

KARACHI, July 16: The Sindh High Court reserved judgment on Friday on a writ petition moved by three Muttahida Qaumi Movement candidates for their notification by the Election Commission as elected representatives of NA-240, NA-243 and PS-127 (Karachi).

After hearing the counsel of the petitioners and the respondents, a division bench, comprising Justices Anwar Zaheer Jamali and Gulzar Ahmed, asked the deputy election commissioner, who had earlier filed a counter-affidavit through Deputy Attorney-General Nadeem Azhar, to submit the record on the basis of which the EC instituted an inquiry and set aside the bypolls held in the three constituencies in Karachi on May 12 within three days.

The bench made it clear to the counsel that it was not much concerned with the details of the factual controversies involved. The case revolved round the exercise of power by the Election Commission under Section 103-AA of the Representation of People Act.

Why complaints by rival candidates were considered so sacrosanct that they were relied upon even in their absence without an opportunity to the aggrieved individuals to controvert them by cross-examination. If certain people resorted to firing, it should be they and not the voters, in general, who should be punished, observed the bench.

Appearing for Mohammad Umar Jat, PPP candidate from PS-127, Advocate Shahadat Awan submitted that his client's case stood on a footing different from other respondents.

One of the presiding officers lodged an FIR with the Malir city police station alleging that over 30 people scaled the walls and stormed a police station. They took away the ballot boxes but returned them after 'doing the needful'.

The counsel said the constituency belonged to the PPP and fell vacant due to the murder of MPA Abdullah Murad. Insofar as PS- 127 was concerned, the EC had sufficient material to set aside the bypoll. The bypoll was vitiated by all manner of irregularities, he submitted.

Advocate Mohammad Khalid argued that the EC order was not assailable under the 2002 General Elections Order. The bench observed that the order could not curtail the high court jurisdiction, which has not been conferred by a statute but by the Constitution.

Appearing for the Muttahida Majlis-i-Amal candidates, Advocate Junaid Farooqui said the petition was not maintainable. The Representation of People Act did not provide for an appeal against an EC order under its Section 103-AA.

However, while exercising power under Section 103-AA, the EC acted as an election tribunal, whose orders were appealable only in the Supreme Court under Section 67 of the RPA.

The impugned order should have, therefore, been challenged in the Supreme Court. Besides, the petitioners failed to annex the necessary documents. The counsel said the atmosphere was not congenial to balloting after the incidents of firing.

It was difficult to ascertain the impact of violence on voters but it was clear that no normal human being would risk his life by going out once an incident of firing had occurred.

It was not true to claim, the counsel said, that other polling stations remained unaffected when disturbance occurred at only one of them. The fact was that many polling stations were located in one building and all of them were equally disturbed if there was firing in the vicinity.

The bench pointed out that the parties and candidates were given full opportunity to question the location of polling stations. Advocate Farooqui said the EC was fair enough to uphold the bypoll in NA-243 as no incident of firing was reported in the constituency.

Even the petitioners had not attributed malice to the commission. The commission was the final authority in matters relating to elections and had its own sources to assess the polling atmosphere and it was incorrect to say that the commission had no evidence before it. There were a number of casualties and no further proof was required, he added.

LAWYER'S DETENTION: The Sindh High Court disposed of as withdrawn a petition on Friday when it was informed that an alleged detainee, a city lawyer, had returned home safely this morning.

According to petitioner Khalida Khanum, her husband, Advocate Shamsher Khan, was picked up from his Gulshan-i-Iqbal residence on the night between July 12 and 13. She alleged that he was arrested by police personnel and the court issued notices to provincial and federal attorneys.

As a division bench, comprising Justices Anwar Zaheer Jamali and Gulzar Ahmed, took up the petition, Additional Advocate-General M. Ahmed Pirzada stated that the alleged detainee had neither been arrested, nor detained by police. The petitioner intervened to inform the bench that her husband, who heads the Mohajir Qaumi Movement's legal wing, had returned home and she would not press her petition.

NOTICES ISSUED: The Sindh High Court on Friday issued notices to Advocate General Sindh, Capital City Police Officer (CCPO) and the city government for July 29, 2004 on a petition against forced capture of water tankers by police, adds PPI.

The SHC's division bench comprising Justice Anwar Zaheer Jamali and Justice Gulzar Ahmed directed the respondents to file written comments on the next hearing. Petitioners Muhammad Haroon, Ghulam Nabi, Tariq Khan, Muhammad Ali, Abdul Majeed, Gul Fraz Khan, Shafaqat Hussain, Muhammad Saeed Khan and Mansoor, owner of water tankers, submitted that the police forcibly capture their tankers at times of strikes, VIP movements and protests by opposition parties to block roads for security purposes.

Their counsel Shaukat Sheikh submitted that due to it, the petitioners were deprived of earning money, as not a single penny was given to the petitioners against the seizure of tankers.

Naming the Sindh Home department, CCPO, and the city government as respondents, he prayed to the court to direct the police not to deprive the petitioners of their earnings, and neither to snatch their tankers for any reason.