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| March 18, 2008 | Tuesday | Rabi-ul-Awwal 9, 1429 |
KARACHI: SHC reserves order on Shikarpur repoll pleas
KARACHI, March 17: A division bench of the Sindh High Court reserved on Monday its judgment on two petitions moved by unofficially returned National People’s Party candidates from NA-202 and PS-12 (Shikarpur) against the Election Commission’s order for re-polling at 18 polling stations.
The petitions have been moved by Dr M. Ibrahim Jatoi and Abid Hussain Jatoi against the election commission’s order for re-polling at 18 polling stations common to the two constituencies following a complaint lodged by Aftab Shaban Mirani and Agha Arsalan Khan of the Pakistan People’s Party under Section 103-AA of the Representation of People Act (RPA).
Appearing for the respondent candidates, Advocate Kamaluddin Azfar argued that the power of summary inquiry and relief conferred on the Election Commission by Section 103-AA of the RPA was a discretionary power. The provision allowed the commission to adopt any procedure and not necessarily the procedure prescribed for election petitions. Again, it could grant any relief short of a fresh election or by-election in the entire constituency in its wisdom.
The only requirement, the counsel maintained, was the satisfaction of the commission or the chief election commissioner that balloting had manifestly been vitiated by illegalities and irregularities.
The transfer of a number of presiding officers on the eve of voting on February 18 and the unbelievably high percentage of votes cast at about 20 polling stations was sufficient to order a re-poll. He cited the 2006 Ghalib Domki case wherein the commission fixed a benchmark of 65 per cent for a realistic turnout. The order was upheld by the high court.
Assisted by Advocates Khwaja Shamsul Islam and Abdus Sattar Pirzada, Advocate Abdul Hafiz Pirzada argued that the commission’s satisfaction must be objective and not subjective. The commission could not exercise the power arbitrarily to satisfy itself subjectively. Section 103-AA itself prescribed the same procedure as laid down for election petitions under Section 52 of the RPA. The relief provided by Section 103-AA was a fresh by-poll under Section 108 of the RPA. In the instant case, the commission acted on a letter addressed by one of the PPP candidates on behalf of both. No notice was issued to the unofficially declared candidates, who were restrained from being notified and taking oath.
The benchmark of 65 per cent subjectively fixed by the commission, the counsel said, was arbitrary and discriminatory. Over 120 constituencies would be up for re-poll if the criterion was uniformly applied. It would be ridiculous to hold fresh polls at every polling station to show a heavy turnout.
Mr Pirzada distinguished the Ghalib Domki case as it pertained to a by-election. Voter turnout was generally high in a general election and an election could be more keenly and closely contested in certain areas.
Justices Azizullah M. Memon and Arshad Noor Khan, who constituted the bench, also heard Advocate-General Dr M. Farogh Naseem and Deputy Attorney-General Rizwan Ahmed Siddiqui. The stay order against selective re-poll was extended till the announcement of the judgment.
Chief Justice Mohammad Afzal Soomro, meanwhile, granted bail before arrest in absentia to M. Asadullah Shaikh, former home secretary and chairman of the National Investment Trust. The bail application was moved by his son, Naveed Khan, through Advocate M. Nawaz Shaikh.
Asadullah Shaikh was booked for misappropriation of public funds and fraud in 1997 during the second tenure of Nawaz Sharif as prime minister. He was alleged to have purchased Chakwal Cement shares from two shareholders at an exorbitant price, thereby causing a huge loss to the NIT and its investors. The case was initially investigated by the accountability bureau, which terminated its inquiry after some time and left to the Federal Investigation Agency to investigate and prosecute the case.
The FIA’s commercial and banking circle registered a case under the Pakistan Penal Code and the Anti-Corruption Act and sent it up for trial in a special court for offences in banks. The former NIT chief, who left for London in 1997 and had been there since then, was declared an absconder.
His counsel said that the beneficiaries of the impugned transaction, Khwaja Javed and Khwaja Salim, whose shares in Chakwal Cement the absconding accused had allegedly purchased at an exorbitant price, had since been granted bail by the trial court and the rule of consistency was that he should also be admitted to bail.
There was no case against him and he was politically victimised for cordial relations with the PPP leadership, the counsel said.
The accountability bureau, the counsel pointed out, had closed its inquiry against him and his name was removed from the exit control list (ECL). An application under the National Reconciliation Ordinance promulgated by the president on October 8, 2007, had been moved in the banking court for termination of the trial in which notices had been issued for March 29. However, the NIT ex-chief apprehended that he would be arrested immediately on arrival, the counsel submitted.
Issuing a notice to the deputy attorney-general for April 7, the chief justice ordered that the applicant be admitted to pre-arrest bail in the sum of Rs200,000 in the meanwhile.
An appellate bench of the Sindh High Court comprising Justices Yasmeen Abbasey and Syed Mehmood Alam Rizvi, meanwhile, admitted two retired government employees to bail and reserved order on a plea moved by two accused in service, APP adds.
The bench was hearing bail pleas of Abdul Karim Malano, Shaukat Lohar, Sultan Ahmed Lashari and Ishaq Lashari in a case of embezzlement of Rs220 million, popularly known as Shikarpur GP fund scam.
The court admitted Abdul Karim Malano and Shaukat Lohar to bail, subjecting to their deposition of half of the amount they had allegedly embezzled.
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