ISLAMABAD: The Election Commission released on Thursday a detailed judgment on the poll-slap incident, saying it could conveniently take notice of an irregularity or illegality committed during the election process.The judgment, authored by ECP’s member from Balochistan Justice (retd) Fazalur Rahman and endorsed by members from Punjab and Khyber Pakhtunkhwa, held that provisions of the People’s Representation Act had definitely been violated by Syeda Waheeda Shah (PPP candidate for Senate election from Sindh) by slapping a presiding officer and an assistant presiding officer, with a DSP watching the episode as a silent spectator.
It said: “Waheeda Shah has been convicted by the concerned returning officer enjoying powers of first class magistrate under the law, therefore her case falls under Section 100 of the People’s Representation Act which deals with disqualification on account of certain offences.
“The Returning Officer PS-53 Tando Muhammad Khan, Ali Asghar Sial, passed the order invoking sections 260 and 263 of the Code of Criminal Procedure.”
The commission also reproduced the order passed by the returning officer which reads: “In view of the statement of presiding officer and assistant presiding officer as witness, it appears that candidate Waheeda Shah committed an offence punishable under section 86 of People’s Representation Act, 1976. As the footage of the incident has been telecast on various TV channels, therefore it will be against the spirit of law to deal with such delinquent candidate normally, though the presiding officer and assistant presiding officer have exonerated candidate Waheeda Shah in their statements.” The commission said it had decided to club a complaint filed by a contesting candidate, Mushtaq Ali Talpur, and the conviction order passed by the returning officer.
“Keeping in view the legal and factual position we are of the view that Waheeda Shah is liable to be disqualified. We, therefore, disqualify her for two years,” the order said.
In his additional note, EC’s Punjab member Justice (retd) Riaz Kiyani said a deterrent notice had to be taken of the gross violation of malfeasance committed by the accused to ensure that in future nobody should dare resort to aberration of law.
DISSENT: In his note of dissent, EC’s Sindh member Justice (retd) Roshan Essani said the forum had no jurisdiction in the matter for the relief claimed by the petitioner. “The remedy could have been sought by way of election petition before the election tribunal created under the law and the Constitution as allegations made would require detailed inquiry,” he noted. He described the order passed by the returning officer as coram non judice, pointing out that he had magisterial powers for conduct of summary action only for the poll day in view of the Feb 14 notification.
Justice Essani was of the opinion that if any breach of law had been committed by respondent lady on the poll day, the returning officer could have summarily convicted then and there under section 86 A of the Constitution.
“The corrupt and illegal practices have been defined under sections 78 and 83 of the People’s Representation Act, and the alleged action of the respondent does not fall within ambit of the definitions,” he noted.
In his note of dissent, Chief Election Commissioner Justice (retd) Hamid Ali Mirza observed that one should not be influenced by the material, acts and actions which were not part of record and admissible in evidence under the Qanun-e-Shahadat and law. “The finding is to be based on admissible evidence on record under the law.”
Meanwhile, the Election Commission adjourned till March 14 the hearing on a petition filed by the PML-N seeking suspension of the notification about election of seven senators on general seats from Balochistan.