ISLAMABAD: The Supreme Court on Wednesday set aside an election tribunal’s order that had declared the chief of the banned Ahle Sunnat Wal Jamaat (ASWJ), Maulana Muhammad Ahmed Ludhianvi, as the successful candidate from NA-89 (Jhang).

Consequently his opponent, PML-N’s Sheikh Mohammad Akram, who had earlier bagged the National Assembly seat from NA-89 in the May 11, 2013 polls, was held to be the returned candidate.

On Dec 8, 2015, a three-judge Supreme Court bench, headed by Acting Chief Justice Mian Saqib Nisar, had reserved ruling on the election dispute between the two candidates. The ruling was reserved on a petition instituted by Sheikh Akram, after the Faisalabad election tribunal declared Maulana Ludhianvi the returned candidate from the constituency in his place, without ordering repolling.

The tribunal had accepted Maulana Ludhianvi’s petition on the grounds that Sheikh Akram had not disclosed in the nomination papers that there was a pending criminal case against him.

The constituency of NA-89 (Jhang) has always been considered a hotbed for sectarian strife. The seat went to Haq Nawaz Jhangvi, founder of what was then known as the Sipah-i-Sahaba Pakistan (SSP), in the 1988 general elections.

“The mandate given by the electorate must not be interfered with on hyper-technical grounds,” observed Justice Qazi Faez Isa, who wrote the judgment that was released by the Supreme Court in the open court on Wednesday.

“The appeals are allowed and the impugned judgement of April 9 [2014] of the election tribunal is set aside,” Justice Isa said while announcing the verdict.

“Consequently, the earlier election results notified by the Election Commission of Pakistan, which had declared the appellant (Sheikh Akram) to be the elected candidate from NA-89 Jhang-I constituency [are] maintained,” the judgement added.

“Unfortunately the tribunal not only set aside the election of the most popular candidate chosen by the people to represent them, but did so for factors wholly extraneous to the law,” the verdict regretted, adding it substituted the elected candidate with a defeated one without satisfying whether another candidate was entitled to be declared elected as per the legal requirements.

The judgement explained that the present case was not one where the appellant was found to have committed any corrupt practice, nor was it a case where a mistake had been committed in counting the votes or compiling the results or where a recount or recompilation had produced a different result.

Since Sheikh Akram was not disqualified from contesting elections the votes polled by the appellant, who had incidentally received the majority of votes, could not have been disregarded, nor could it have been presumed that the runner-up would have got the appellant’s votes, the judgment said.

“The people of the constituency elected the appellant from a field of 21 candidates. Would the electorate, or a sufficient number of them to change the result, not have voted for him if they knew about the pendency of the same case,” the judgment asked.

“We need to consider whether due to non-disclosure of a traffic offence for rash driving, the appellant who had won the elections, should have been unseated and the voters who had voted for such a candidate be disenfranchised,” the verdict said.

A candidate is not ineligible or disqualified to contest the elections merely because a criminal case is pending against him. Non-disclosure of a pending case cannot be equated with the non-disclosure of a criminal case in which a person has been convicted and one which may entail his disqualification, the judgment said.

Published in Dawn, February 4th, 2016