March 29, 2008	Saturday	Rabi-ul-Awwal 20, 1429

KARACHI, March 28: The Sindh High Court on Friday set aside the Election Commission’s order for re-polling in 18 polling stations of NA-202 and PS-12 (Shikarpur) and directed the commission to notify Dr Mohammad Ibrahim Jatoi and Abid Hussain Jatoi of the National People’s Party as MNA and MPA, respectively.

The EC had stayed the notification and ordered partial re-poll following a complaint by the Pakistan People’s Party candidate from NA-202, Aftab Shaban Mirani, that rigging at 22 polling stations in the national and provincial constituencies had materially affected the outcome of the entire electoral process.

Exercising its summary powers under Section 103-AA of the Representation of People Act (RPA), 1976, the EC ordered re-poll.

Dr Ibrahim Jatoi and Abid Jatoi, who had defeated PPP’s A.S. Mirani and Agha Arsalan Khan according to unofficial results, assailed the EC order in the high court through Advocates Abdul Hafeez Pirzada, Khwaja Shamsul Islam and Abdus Sattar Pirzada.

The respondent candidates were represented by Advocates Kamal Azfar and A.H. Bhurgari.

Advocate-General Dr Mohammad Farogh Naseem appeared on court notice and elaborated the scope of Section 103-AA of the RPA.

The case was strenuously argued by both sides and a division bench comprising Justices Azizullah M. Memon and Arshad Noor Khan reserved its judgment on March 17 after four days of hearing.

The main points at issue were the maintainability of the petitions, the nature of inquiry under Section 103-AA, the circumstances in which the EC power could be invoked and the order or relief that the EC could grant under the provision.

Settling the issues by a 53-page judgment, the SHC held that the power under Section 103-AA could be exercised only where grave illegalities were apparent on the face of record and were noticeable without recording of evidence.

Where evidence was essential to arrive at the truth or falsehood of allegations, the EC will leave the matter to the election tribunal constituted by it under Section 52 of the RPA instead of itself assuming the role of an election tribunal.

The judgment said the respondent PPP candidates were at liberty to move election petitions.

About the conflicting claims of electoral support in the constituencies, the judgment said such controversies were always subject to proof. Noting that the petitioners have won the previous polls, it said, the EC unlawfully assumed the power of fixing a benchmark of votes likely to have been cast at the disputed polling stations and illegally recorded its findings on the basis of the benchmark.

About the divergent reports submitted by the returning and district returning officers, the judgment said while the RO’s report was apparently based on the factual position obtaining in the disputed areas, the DRO unjustifiably recommended re-poll on the basis of conjectures and surmises.

If balloting is vitiated by gross and flagrant illegalities floating on the surface, the EC can declare the entire poll void and call upon the constituency to elect its representative afresh (in a by-election).

No investigation is permissible to pick and choose polling stations wherein a re-poll is required.

Allegations of irregularities or corrupt practices are to be affirmatively established like a criminal charge and the benefit of any doubt must go to the (unofficially) returned candidate.

The EC is not expected to deviate from such a well-settled principle, the judgment said, citing a 2003 SHC judgment in the case of Kunwar Khalid Yunus.

The petitioners, the judgment said, were well within right to agitate their grievance against the EC before the high court.

According to unofficial results, Dr Ibrahim Jatoi and Abid Jatoi secured 53,750 and 42,316 votes against 47,775 and 16,800 votes polled by their rivals Aftab Shaban Mirani and Agha Arsalan Khan.

FRESH PETITION: Agha Arsalan, meanwhile, moved a fresh writ petition against Abid Jatoi challenging his bachelor’s degree through Advocate Raja Qureshi.

Advocate A.S. Pirzada waived notice and agreed to contest it on Saturday.