ISLAMABAD: The Supreme Court has accepted a plea moved by PML-N’s Omar Ayub Khan for constitution of a larger bench to reconsider a decision taken on a review petition by a bench headed by Justice Jawwad S. Khawaja.

A three-judge bench headed by Chief Justice Anwar Zaheer Jamali accepted the plea raised through counsel Akram Sheikh and has ordered the court office to fix the matter before a bench of preferably no less than five judges to accept or reject the plea.

By a majority of two to one, the bench headed by Justice Khawaja, who had not been elevated as chief justice then, had de-seated Omar Ayub from NA-19 Haripur on June 19 and had ordered the Election Commission of Pakistan (ECP) to hold a by-election on the seat.

That order was complied with by the ECP which held a by-election there last August, when the PML-N’s Babar Nawaz won despite intense electioneering by the Pakistan Tehreek-i-Insaf.

This is the second petition before the apex court that has sought to undo a judgment rendered by a bench headed by former Chief Justice Khawaja.

On Sept 28, Advocate Ali Zafar moved a review petition contending that the bench had suspended his licence to practice in the apex court based on false assumptions and without evidence.

Now, Omar Ayub has moved an application for the constitution of a larger bench on the grounds that the judgment rendered in an appeal by three judges of the Supreme Court has been undone by two judges. Thus, the decision of June 19 has become a case of total absence of jurisdiction and creates a bad precedent.

It appears that it escaped the attention of the judge (Justice Khawaja) while announcing the majority judgment of June 19, but the accidental omission of facts can be rectified by the court under its inherent powers by recalling earlier orders, argues Omar Ayub’s application.

The review petition, challenging the order Omar Ayub is seeking a revision of, was initially filed by PTI candidate Dr Raja Aamer Zaman against a March 7, 2014 judgment.

It was Dr Zaman who was declared successful in the 2013 general elections from NA-19 after he secured 116,979 votes against 114,807 votes polled by Omar Ayub. A recount was ordered where Dr Zaman remained the candidate with the highest number of votes polled though the difference of 2,172 votes stood reduced to 1,304.

Consequently Omar Ayub filed an election petition before a tribunal, which in its judgment on Dec 31, 2013, ordered re-polling in seven polling stations, with an observation that Omar Ayub was not responsible for any corrupt or illegal practices.

The tribunal’s order was challenged by Dr Zaman before the apex court and subsequently dismissed. Then, he filed a review petition against the judgment, which was accepted on June 19 and his opponent was de-seated.

The main judgment was authored by Justice Khawaja, whereas a dissenting note was written by Justice Sheikh Azmat Saeed.

In the main judgment, Justice Khawaja observed that the election as a whole in the NA-19 constituency stood contaminated when it became evident that voting at seven polling stations had materially affected the outcome of the 2013 election.

Justice Saeed in his dissenting note observed that in the event of a failure to comply with the mandatory provisions of the Representation of Peoples Act and election rules, the election tribunal can declare the entire election void, but it cannot be denuded of its jurisdiction to grant partial relief of declaring the election at a few polling stations void and ordering re-polling there.

Published in Dawn, October 4th, 2015

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