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September 23, 2020

High court dismisses PSP plea against 2018 ballot count in Karachi

Karachi

September 23, 2020

The Sindh High Court (SHC) on Tuesday dismissed the Pak Sarzameen Party’s (PSP) petition challenging the ballot count at all the polling stations of Karachi in the July 25, 2018 general elections, with the observation that the petitioner had been unable to set forth a case for this court exercising extraordinary constitutional jurisdiction.

PSP Karachi chief Asif Husnain claimed in the petition that the Election Commission of Pakistan and its district returning officers and returning officers had failed to conduct fair and transparent polls in the city.

He levelled certain allegations with respect to the conduct of the general elections as well as not preparing the ballot count result in accordance with the requirement of the law, and sought a forensic investigation into the claims.

He also sought that the 2018 general elections be declared void and the notification of the returned candidates from the provincial and national assemblies be withdrawn.

The petitioner’s counsel Hasan Sabir said the returning officers and the presiding officers had failed to comply with the requirements of the Elections Act and the Election Rules. He said the polling agents were not allowed to witness the counting of votes, and the presiding officers did not prepare the results of the ballot count in the presence of the polling agents of the candidates.

Sabir said the presiding officers did not affix the result of the vote count at the polling stations, and Form 45 and Form 46 were not provided to the polling agents of the candidates. He said that various provisions of the Elections Act and the Election Rules were ignored, and requested that the court call media reports about the election results that were issued two or three days after the polling.

The SHC’s division bench headed by Justice Yousuf Ali Sayeed questioned the maintainability of the petition, and observed that Article 225 (Election dispute) places a constitutional bar on calling elections to the house or provincial assembly into question.

The court observed that the bar contained in Article 225 is not absolute and may be displaced under Article 199(1)(b)(ii): requiring a person to show under what authority they claim to hold an office, or Article 184(3): power to make an order.

The court also observed that the Supreme Court in recent judgments held that facts about disqualification of a member of a house must be based on affirmative evidence and not on presumptions, inferences and surmises, and that interference may only be contemplated in the presence of admitted facts or irrefutable direct evidence available on record to justify disqualification.

The high court observed that it has been maintained that settlement of factual issues is discouraged in the exercise of constitutional jurisdiction, and that the court may not take such a task upon itself.

The court observed that the petitioner himself seeks a forensic investigation to determine the authenticity of his allegations, so it is prima facie apparent that there are no admitted facts or irrefutable direct evidence available on record.

The court also observed that the present petition does not qualify within the ambit of Article 199(1)(b)(ii) in view of the principles of law settled by the Supreme Court. The high court observed that no justification was articulated to support the petitioner’s plea for this court to initiate an inquiry — forensic or otherwise — when the law, as cited supra, specifically discourages such an exercise within the ambit of the writ jurisdiction.

The court observed that the petitioner’s counsel was specifically queried as to whether the respective candidates of the PSP had preferred the election petitions to challenge the election of the returned candidates, de-notification whereof was sought vide the present petition, upon grounds inclusive of those invoked herein, but the query was unequivocally answered in the negative.

The court also observed that Article 199 of the constitution specifically stipulates that jurisdiction is to be entertained upon invocation by an aggrieved person, an exception in such regard being a writ of quo warranto, but this petition is not seeking such a writ.

The court further observed that the petitioner’s counsel has been unable to articulate to the court as to how the petitioner was aggrieved by the conduct of the electoral process when none of its unsuccessful candidates were similarly aggrieved, since no election petitions were instituted as per admission of the learned counsel.

The SHC observed that the petitioner has been unable to set forth a case for the exercise of extraordinary constitutional jurisdiction by this court, and dismissed the

petition.