ISLAMABAD: The Supreme Court on Friday unseated PML-N’s Omar Ayub Khan from the National Assembly constituency NA-19 Haripur in Khyber Pakhtunkhwa and ordered the Election Commission of Pakistan (ECP) to hold a by-election there.

A three-judge bench, headed by Justice Jawwad S. Khawaja and consisting of Justice Gulzar Ahmed and Justice Sheikh Azmat Saeed, had taken up a review petition moved by PTI candidate Dr Raja Aamer Zaman against the court’s March 7, 2014 judgement. The decision was a two-to-one verdict, with Justice Saeed dissenting. The main judgement was authored by Justice Khawaja.

Dr Raja Zaman was declared the returned candidate during the 2013 general elections from the NA-19 constituency after securing 116,979 votes against Mr Ayub’s 114,807. A recount was ordered, but Dr Zaman remained the successful candidate, though his original victory margin of 2,172 was reduced to 1,304.

Consequently, Mr Ayub challenged the result before an election tribunal, which, in its judgement on Dec 31, 2013, ordered re-polling in seven stations instead of declaring the election void.

The tribunal’s order was challenged by Dr Zaman before the apex court, which dismissed the same. Consequently, he filed a review petition against the judgement, which was accepted and his opponent was de-seated.

In the judgement, Justice Khawaja observed that the elections in NA-19 Haripur stood vitiated and contaminated when it became evident that voting at the seven polling stations had materially affected the outcome of the election.

Thus, the prejudice towards Dr Zaman is evident, the judgment said, adding that the failure to properly apply election laws would also be, by definition, prejudicial not only to the petitioner but also to the entire constituency because they would not be able to elect a parliamentarian in the by-election.

Therefore, the ECP will hold a by-election for the constituency in accordance with the law, the judgement stated.

Meanwhile, in his note of dissent, Justice Saeed observed that in the eventuality of a failure to comply with the mandatory provisions of the Representation of Peoples Act (RoPA), 1976, and elections rules, the election tribunal may declare the entire election as void in exercise of powers under Section 70 of RoPA. But at the same time, it cannot be deprived of the jurisdiction to grant partial relief by declaring the election at a few polling stations void and directing a re-poll there.

Published in Dawn June 20th, 2015

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