24 July 2004	Saturday	06 Jamadi-us-Saani 1425

KARACHI, July 23: A division bench of the High Court of Sindh, comprising Justice Anwar Zaheer Jamali and Justice Gulzar Ahmed, allowed a constitutional petition filed by three candidates of the Muttahida Qaumi Movement , ordering the Election Commission of Pakistan to announce the results of two seats of National Assembly and one seat of Provincial Assembly without any delay.

The bench had earlier reserved order which was announced on Friday by Justice Mushir Alam and Justice Gulzar Ahmed. The petition was filed by Nisar Ahmed Panhwar, Mohammad Abid Ali Umang and Nusrat Ali Shaikh who secured highest number of votes cast in the by-election of May 12.

The petitioners challenged the orders of the ECP (dated June 9 and 12), declaring the elections as null and void. The ECP had, earlier, ordered re-election in these three constituencies while declaring the result of NA-243.

The petitioners challenged the ECP decision on the ground that its order under Section 103-AA is illegal. The Sindh government, a respondent in the petition, also requested the court to stay the process of re-elections, maintaining that if instant petition is allowed, the whole exercise and expenditures to be incurred will go to waste.

Attorney General of Pakistan Barrister Makhdoom Ali Khan and Advocate-General Sindh, appearing on court notice before the bench, supported the case of the petitioner.

The bench in its judgement said the "Election Commission misdirected itself in placing reliance on anonymous complaints" as no complainant or candidate appeared before the ECP to substantiate their allegations of rigging and resort to unfair means by the returned candidates of the MQM.

The bench observed that it came to an irresistible conclusion that before the ECP no case for invoking its jurisdiction under Section 103AA of Representation of People Act (RPA) 1976, was made out, as requirements of such provisions of law were lacking in the instant case.

"Exercise of jurisdiction by the ECP in passing the impugned order on June 9, was arbitrary, without jurisdiction and of no legal effect. Consequently, we allow the petition in the following terms:

(a) Impugned order of June 9, 2004, being arbitrary, unjust and illegal and consequent notification No F.8(16)/2004 code of even date are declared to be without lawful authority and no legal effect.

(b) Respondent 1 (ECP) shall declare the results of PS-127 (Karachi-39), NA-240 (Karachi-2) and NA-246 (Karachi-8) in terms of Section 42 of the Act without delay as results submitted by the returning officers," the court order said.

The court, however, observed "before parting with the judgement, we deem it proper to mention here that we have refrained from discussing in detail the allegations relating to factual controversies as to the holding of election by the ECP on May 12, so that no prejudice is caused to party who may be interested in pursuing the matter under Section 52 of Act before the Election Tribunal."

Ten persons were killed in the by-elections after which the ECP, taking notice of the complaints by all sides and the contesting candidates had declared the results of by-election null and void. -APP/PPI