1. GULZAR AHMED, J.---The petitioner has filed this constitutional petition with the following prayers.
(a) Declare the Notification dated 31-12-2007 is unreasonable, illegal issued for mala fide reasons, and of A no legal effect.
(b) Direct the PM&DC to count the previous postal ballot papers, of September 2005, in their custody to determine the true result of the election, in the alternative, to require. The PM&DC to cause fresh polls on the same nomination giving sufficient time for the medical practitioners of Sindh to send their postal ballot.
(c) To stay the operation of the Notification No F-3-2/207-MER (PT-III) dated 31-12-2007 till the disposal of the present petition.
(d) To restrain the respondent No,3 to attend any meeting of the PM&DC till the disposal of the present petition.
(e) To declare that the Notification No,F-3-2/2007-MER (PT-III) dated 31-12-2007 is illegal, void and of no legal effect.
(f) Cost of the petition.
(g) Any other/further relief or reliefs as this Hon'ble Court may be pleased to pass in the circumstances of the case."
2. ' Separate parawise comments have been filed by respondents Nos. 1 & 3. Petitioners has filed reply to the parawise comments of the respondent No,3.
3. Learned counsel for the petitioner has contended that no opportunity of hearing to the petitioner was allowed by the respondent No,2 in respect of petitioner's objection to the counting of votes for the election of Members and that he has been condemned unheard. No sufficient time was allowed for casting votes by post and that the votes received through post in the election of 2005 ought to have been counted which would have made the petitioner a successful candidate in the elections. In support of her submission, learned counsel relied upon the case of Jam Mashooq Ali v.
4. Shahnawaz Junejo (196 SCMR 426).
5. On the other hand leaned counsel for the respondent No,1 contended that the elections of 2005 were cancelled. Learned Counsel for the respondent No,3 contended that the elections for Members of Pakistan Medical and Dental Council were held pursuant to the judgment in the case Pakistan Medical and Dental Council v. Ziauddin Medical University (PLD 2007 SC 323) and that the elections in terms of such judgment were to be held within 6 weeks and they were duly held and the respondent No,3 was rightly declared successful. He contended that sufficient time was allowed for casting votes by post and counting of postal ballots for the election of 2005 was not possible for the reason that such elections were admittedly cancelled.
6. ' It appears that the Medical and Dental Council was constituted by the Federal Government, inter alia for registration of medical practitioners. Subsection (1) of section 3 provides for constitution and composition of Council and clause (c) provides for (c) election of four Members from amongst the registered medical practitioners. The terms of office, of a Member is of 5 years from the date of election until its successor has been elected.
7. ' The Pakistan Medical and Dental Council respondent No,1 announced in August 2005 holding of election of its Members in terms of section 3(1) (c) of the Ordinance with date of election in the Province of Sindh on 10-9-2005 and the polling stations were notified. The registered medical practitioners who were residing beyond the radius of 25 miles of polling stations were allowed to vote by post provided that they make a written request up to 27-8-2005 along with the requisite documents. Besides others, the petitioner and the respondent No,3 were candidates for election of Member from Province of Sindh. On account of serious disturbance caused at the polling stations, the Election Committee postponed the elections to be held at the future date to be notified. By a notification dated 31-3-2007 pulling was announced to be . Held on 21-5-2007 and requests for postal ballot were to be sent up to 20-4-2007. Due to general law and order situation in Karachi, the election could not be held on this date. Again through notification dated 17-7-2007 election was announced to be held on 6-8-2007 and requests for postal ballot were to be sent up to 22-7-2007.
8. The elections were held whereafter the votes were counted and the Election Committee declared respondent No,3 to have been elected as Member. The petitioner's representative raised objection regarding counting of votes and it was informed to him that the matter would be referred to the Federal Government. The objection of the petitioner was referred by the respondent No,1 to the respondent No,2 and the hearing of which was fixed on 10-10-2007 and 24-10-2007 but as alleged in the petition no hearing took place. It is alleged that the petitioner received on 25-12-2007 letter dated 9-12-2007 by urgent mail service by which hearing was fixed on 27-12-2007 at 10-00 a.m. In the Committee Room of Ministry of Health, Block-C, Pak Secretariat, Islamabad and the petitions was asked to appear for hearing before the Secretary Health. The hearing took place on this date before the Secretary Health which the petitioner did not attend and after considering all relevant points, it was decided that the respondent No,3 be notified as Member of he respondent No,1 under section 3(1)(c) of the Ordinance. Pursuant to such decision notification dated 13-12-2007 was , issued whereby the respondent No,3 was notified as elected Members of the respondent No,
1. The petitioner with the petition has attached copies of the election schedule for the holding of election on 10-9-2005 and 21-5-2007 but has not attached copy of notification dated 17-7-2007 by which election schedule was announced. Nor the petitioner in the petition has given the date on which the election was tobe held pursuant to the notification dated 17-7-2007. The respondent No,3 with his parawise comments has attached copy of notification by which election schedule was announced and from it appears that the date of election was fixed as 6-8-2007 and the voters desiring to cast their vote by post were allowed time up to 22-7-2007 to apply for the same and required ballot papers duly marked were to be received latest by 1-8-2007 at 3-00 p.m.
9. So far the first submission of the learned Counsel for the petitioner that the petitioner was not allowed opportunity of hearing by the respondent No, 2, it may be noted that the petitioner admits having received notice of hearing dated 19-12-2007 by which the hearing was fixed on 7-12-2007 at Islamabad. The petitioner claims that such notice through urgent mail service was received by him at Mirpur Khas on 25-12-2007 and therefore, he did not had enough time to attend the hearing at Islamabad and has sent a fax to the Secretary Health for postponing the hearing. Though the fact of sending of fax to the Secretary Health for postponing the hearing is mentioned in the petition but copy of such fax is not attached with the petition. Even the date on which the fax sent is not mentioned. The fact of sending of fax also does not find support in annexure F-2 filed with the petition which contains the note of the President of respondent No, 1 regarding hearing on 27-12- 2007 was it does not mention that any fax from the petitioner for postponing the hearing was received by the Secretary Health. Beside, looking at means of community which are available, it could not be said that the petition could not have travelled to Islamabad for attending hearing on 27-12-2007. Petitioner has given no details or evidence of making efforts for traveling to Islamabad which efforts of his did not bear fruit. In the absence of the fax and efforts on the part of the petitioner to attend the hearing fixed before the Secretary Health, Islamabad on 27-12-2007, it- cannot be said that the petitioner was not provided an opportunity of hearing or has been condemned unheard rather petitioner on his violation choose not to attend the hearing.
10. ' As regards the second submission of the learned Counsel for the petitioner that postal ballots which were casted in the election of August 2005 ought to have been counted, it may be noted that in all the three elections announced by the respondent No,l requests for casting of votes by post were sought. The elections of August, 2005 were postponed so also the elections of May, 2007.
11. Through the 3rd notification dated 17-7-2007 schedule for holding election on 6-8-2007 was announced in which the voters were asked to send their requests for casting of votes by post up till 22-7-2007. Learned Counsel for the petitioner submitted that this was not sufficient time for allowing the voters to cast their votes through post and therefore, the voters have been denied their right of franchise through post. It may be noted that in the first place the petitioner did not raise any objection regarding schedule of election nor did he seek its postponement on the ground that sufficient time was not allowed to the voters to cast their votes by post. The petitioner allowed the election to be held and ultimately when he did not succeed, he raised grievance on the premises that sufficient time was not allowed the voters to cast their vote through post and that the Votes received through ballot in August, 2005 to be counted. There is an apparent fallacy in this argument of the learned Counsel for the petitioner for the apparent reason that the respondent No,l has allowed three different schedule for holding of the elections and it was nowhere mentioned in such schedule that the elections are being held in continuation of the elections which were announced in August, 2005. Thus the schedule of election established as a fact that there were fresh elections and not in continuation of the previous one. The vote if any casted in the previous elections cannot be counted in the election of August 2007 for the apparent reasons that it would have created a very anomalous situation that of counting of double votes through post as admittedly in the elections of August 2007, 42 votes were received through post. In any case, this dispute having been raised by the petitioner in his objection before the Secretary Health and petitioner having himself chosen not to attend the hearing and press such objection, he could not be allowed to agitate the merit of the decision taken by the Secretary Health. The case of Jam Mashooq Ali relied upon by the learned counsel for the petitioner was premises on the fact that the Returning Officer has received application for issuing of ballot papers for casting votes by post which applications were not accepted by the Returning Officer. Such act of the Returning officer was declared by the Hon'ble Supreme Court to be that of denial of right of franchise to the voters. It is not the case of petitioner that any of voter's application for issuing of ballot paper was refused by the Election Committee. The case cited is therefore, distinguishable from the facts and circumstances of the present case.
12. Upon hearing the Counsel for the parties on 21-5-2009 by short order we have dismissed this petition in limine. The above are the reasons for the short order.