0
HYDERABAD: The Sindh High Court Hyderabad circuit bench suspended on Tuesday an order of the Election Commission disqualifying Waheeda Shah for slapping two polling staff members in by-election in Tando Mohammad Khan.
A divisional bench comprising Justice Aqeel Ahmed Abbasi and Justice Nisar Ahmed Shaikh also stayed the April 26 by-election for the provincial assembly seat (PS-53), where the incident took place. It suspended the summary proceedings of Ms Shah by the returning officer who had sentenced her to one-day imprisonment if she failed to pay a fine of Rs1,000 within seven days.
Announcing its verdict on a complaint over the incident, the Election Commission had on March 6 disqualified Waheeda Shah for two years from taking part in elections and nullified the result of PS-53 by-poll.
The divisional bench admitted a constitutional petition of Waheeda Shah for regular hearing and adjourned the case till May 15.
Her counsel Hyder Imam Razvi said the returning officer, who held the summary proceedings of his client, had compiled consolidated result in form-16 on Feb 25, mentioning 30,000 votes bagged by Ms Shah and 14,000 by other contestants combined. But the ECP withheld the result and disqualified her for two years.
The counsel said there was no compliant from the victims of the incident — presiding officer Habiba and assistant presiding officer Shagufta.
They said in their statements that it was “a misunderstanding and things have been settled”.
Advocate Razvi cited a 2008 judgment by the Supreme Court which said that as soon as a returning officer signed form-16 he became functus officio (officer who loses official authority delegated to him for a certain period) and even if he passed an order it would be considered coram non-judice (without jurisdiction).
Likewise, he said, in a verdict by the SHC division bench in the 2003 Kanwar Khalid Yunus case, Justice Sabihuddin observed that cogent reasons were required to recall the election of a returned candidate because as soon as form-16 was signed the rest of the work was considered ministerial job.
“So you admit that your client did beat up the two women, but it was on account of misunderstandings,” Justice Nisar Shaikh said.
Advocate Razvi said he was saying that his client had been ‘exonerated’ by these women in their statements. Even an inquiry committee set up by the returning officer said in its report that no compliant had been filed against Waheeda Shah, he added.
The counsel contended that the summary proceedings had been initiated by the returning officer in absence of his client, which was a violation of section 353 of the Cr.PC. Thirteen witnesses were examined on March 3 in the absence of Ms Shah.
Similarly, he said, section 99 of the Representation of People’s Act 1976, which deals with qualification and disqualification of a candidate, was not fully complied with while taking cognisance of the matter under section 103AA of the Act.
Naimatullah Soomro field power on behalf of Mushtaq Ali Talpur, a rival candidate of Waheeda Shah. He sought time to study the case.
Deputy Attorney General Mohammad Ali Shaikh argued that Ms Shah’s petition was not maintainable because she had preferred an appeal before a session court. Therefore, he said, she could not move the Sindh High Court in the matter.
The court said that the petitioner’s counsel had raised substantial legal points, including the point of jurisdiction, and it needed proper adjudication by this court. It said that because of paucity of time the petition could not be decided at this stage.
“Under the circumstances, the operation of impugned orders as well as the notification by the chief election commission are suspended; elections and by-elections are stayed,” the court said in its order.
