PESHAWAR, Aug 27: Accepting three identical writ petitions, a division bench of the Peshawar High Court on Tuesday set aside an Election Commission notification about delimitation of two provincial assembly constituencies of Batagram.
The bench comprising Justice Khalida Rachied and Justice Shehzad Akber Khan ruled the order of the EC member Justice Qazi Ahsanullah Qureshi illegal and against the law.
The bench remanded the case back to the EC member with the directive that it should be decided at the earliest.
During hearing of the objections filed against preliminary delimitation of constituencies, the EC member had accepted the petitioners’ plea on June 1. However, without issuing a notice to the petitioners, the member reviewed his earlier order and instead, issued another order on June 18 whereby he turned down the objections of the petitioners.
In the present case, three patwar circles of Batagram tehsil — Thakot, Paimal Sharif and Hutal — which is in PF-59, have been included in Allai tehsil which forms PF-60. The petitioners — a former MPA, Fatehullah Khan, and two union Nazims Yaqoob Khan and Aurangzaib — have claimed that historically the three areas were with Batagram tehsil and during all the previous general elections these areas remained with it. They said there was a high mountain between Allai tehsil and these three areas. Therefore, their inclusion in PF-60 was not feasible.
Qazi Mohammad Anwer appeared for the petitioners and contended that the EC member had overstepped the powers enjoyed by him under the Delimitation of Constituencies Act, 1974. He contended that on June 1 an order was issued in favour of the petitioners whereby the said three areas were removed from PF-60 and included in PF-59. However, he added, when the notification about the final list of constituencies was issued on June 28 the petitioners came to know that the member had revised his earlier order without issuing notice to them.
Mr Anwer contended that the act of the election commission was violative of the principle of natural justice as the petitioners were condemned unheard. He added that by no stretch of imagination it could be believed that a member would set aside his own order and issue another without giving any reason. He said the only ground given for reviewing the earlier order was that there were certain “slips” in the previous order.
Barrister Masood Kausar appeared for the respondents and contended that under section 10 of the Delimitation of Constituencies Act the election commission enjoyed ample powers and it could even make alterations in the final list of delimitation of constituencies. In that regard, he added, the powers of the election commission could not be challenged.
The bench inquired from him whether the EC member had the powers to review his own order and issue another order without informing the concerned parties.
The counsel replied in affirmative, stating that even if an illegal order was passed by the member it could not be challenged.
He added that if these petitions were allowed at such a belated stage when the election schedule had already been announced, it would create a lot of complications.