1. ' IBADAT TAR KHAN, J.-- This Petition relates to an election dispute between the petitioners and respondent 3 Mushtaq Ahmed son of Jan Muhammad, who contested the election for a seat in the Karachi Metropolitan Corporation from Electoral Unit No, 137.
2. ' The background of this dispute is that before general elections to the Karachi Metropolitan Corporation held under the Sind Local Government Ordinance and the Sind Local Council (Election)
3. Rules, 1979, the City was divided into a large number of Electoral Units. These Electoral Units were formed on the basis of the voting strength of the areas comprising these Units. Delimitation of constituency is an important factor in any election and care is always taken to clearly demarcate the areas forming the electoral unit. This is done keeping. In view ethic, cultural and social considerations. The delimitation of constituencies is done after due publicity and well in advance of the polling date. Public objections are invited and after hearing of the objections from the residents of the areas the constituency or electoral unit is finally determined.
4. ' For the purposes of this case reference may be made to Chapter-III of Sind Local Council (Election) Rules and the bunch of rules contained under this Chapter. Rules 8, 9, 10 and 11 deal with delimitation of Electoral Units. Under rule 9 a preliminary list of electoral units is prepared and a public notice is issued by the authority inviting objections and suggestions from the voters living in the areas concerned. After giving hearing to the objectors, a final list of the units with specific areas allotted to each unit is published in the official Gazette. In cases of urgency where publication in the Gazette is not possible, it is published in such manner as the Authority may think fit.
5. ' In the present case the final list as contemplated by rule 10 (2) was published on the 2nd August, 1983!- The electoral unit with which we are concerned, is 137 and it was shown to comprise the following areas:- "Sectors 5-A, 5-B, 2-3, 1-A/1, 1-A/2 and 1-A/3.
6. ' The election programme was announced by the Provincial Election Authority. Nominations were called for Seat No,
137. Petitioner and other candidates filed their nomination papeRs, Petitioner was proposed by Zakir Hussain son of Hamid Hussain and was seconded by Ansar Ahmed son of Iftekhar Ahmad. Petitioner and the proposer and seconder were the voters in the constituency as they had to be under the rules. Their number on the Voters' list was at Serial No, 3681 and 3679 respectively. Petitioner's nomination paper was duly scrutinized, and published to invite objections, if any, to its validity etc. As no objections were received, his name was finally published as a contesting candidate for the K.M.C. Electoral Unit No, 137.
7. ' It is alleged in the petition that from 24th September, 1983 onward the petitioner's efforts to obtain a complete voters' list of Electoral Unit No, 137 remained unfruitful. The voters list supplied to him was incomplete. The portion of the voters list relating to Sectors 2-3, 1-A/1, 1-A/2, and 1-A/3 which allegedly had about 1,500 voters, was never supplied to him. Later on it turned out that the Electoral Unit No, 137 has been abruptly and without any notice cut down. Sectors 1-All and 1-A/2 were taken away from Unit No, 137 and added to some other Unit or Units. Sector No, 1-A/3 was also cut off and added to K.M.C. Electoral Unit No,
133. It is among others this grave illegality and irregularity which has given a cause for this petition and the learned counsel appearing for the petitioner has addressed us on this point. It remains to be examined whether the Authority concerned was competent to effect such a change in the situations after the constituency was delimited and was duly published in the Gazette of 2nd August, 1983.
8. ' It is more or less an admitted position that it was so done and it Is also not denied that this change was never notified or published either in the Gazette, as required by rule 10(1), or even published otherwise as permissible under sub-rule (2) of rule 10. On the day of the election when the poll started, the petitioner, his proposer, seconder and a large number of voters alleged to be about 1,500, were turned back and not permitted to cast their votes because the areas where they were living had been taken away from the Unit No, 137 and attached to Unit No, 136 etc. The result was that the petitioner who was aspiring to become a member from Electoral Unit No, 137 from where he was duly proposed and seconded and his nomination papers were accepted after due scrutiny and his name was published in the final list, could neither vote for himself nor indeed had remained eligible any longer to contest, because he was no more an elector from this unit. The facts of the proposer and seconder was also no better than the candidate himself as they no longer remained voters from Unit No,
137. From the petitioner& point of view, this was not an election but a mockery.
9. ' Other serious allegations of grave irregularities, which according to the petitioner, have violated the sanctity of the election were that while only 2,052 ballot papers were issued, at the time of count 3,171 ballot-papers were recovered from the ballot-box. Although these allegations have not been denied by the Deputy Commissioner, Karachi West in his comments, who was the Returning Officer, but we propose to confine ourselves to only point No, 1, because we can dispose of this petition on the admission of the official respondent on point No, 1 and it is not necessary to examine other contentions raised by the learned counsel.
10. ' As mentioned above, comments were called from the respondents Nos. 1 and 2. Respondent No, 2 filed comments on behalf of official respondents. In para. 5 of the comments filed by the official respondent it has been admitted that some voters, who were originally eligible to vote in Constituency No, 137, were refused voting for this constituency and were included in K.M.C. Unit No,
136. It is better to reproduce Para-5 in extenso:- "It is a fact that according to final Gazette of delimitation Sectors Nos. 2, 3, 1-A/1, 1-A/2 and 1-A/3 are part of K.M.C. 137 but in sections 1-A/1, 1-A/2 and 1-A/3, and Sector No, 2 no voter has been registered. In Sector No, 3 only by some inadvertent mistake some voters i.e, from 3,662 to 3,792
(Male) and 3,120 to 3,221 (Female) have been included in K.M.C.-136 instead of K.M.C.-137 at the time of splitting of Electoral Roll K.M.C.-wise. It is not correct that 1,500 voters have been excluded from K .
11. M. C . -137 . "
12. ' On this admission alone the voting strength of Constituency 137 has been cut down by 130 males votes and 101 female votes including the votes of the petitioner and his proposer and seconder.
13. Whether this split of the constituency has resulted in a loss of 1,500 voters or a lesser number, as contended by the official respondent, the fact remains that in a constituency where the winning candidate has secured only 744 votes and the petitioners 571 and 307, respectively, the exclusion of 130 male and 101 female (total: 231) votes is a substantial and significant reduction. As the difference between respondent No, 3 and petitioner Muhammad Usman is only 173 votes, the 231 voters who admittedly were excluded from the constituency, might have turned the scales in favour of the petitioner, if they were allowed to vote.
14. This petition was not contested by the official respondents but . The learned counsel for respondent No, 3, faced with this situation, tried to raise technical objections. The only contention raised is that the petitioner ought to have perused a remedy by filing an election petition and should not have filed the constitutional petition. We are of the view that once a constitutional petition has been admitted the regular hearing, this argument loses much of its force, although it may be raised by the respondent after notice to him. In the present case we have avoided examining disputed question of facts like those referred to above and others mentioned in the petition. But the main point raised by the petitioner, which remains uncontroverted, is that the delimitation of the constituency was abruptly changed without any notice to anyone and a large chunk of the voting strength of this constitutency was cut off from this unit and included in other units. On this admitted position, we feel inclined to interfere with this election matter in this jurisdiction, rather than leaving the petitioners to the remedy by way of election petition, which is time consuming and may not serve the ends of justice in this particular case. The term of office of the membership is four years starting from August/September 1983.
15. ' The learned counsel has referred to an unreported decision of the Supreme Court in Civil Appeal No, K-8 of 1984 Muhammad Hashim v. Provincial Election Authority. We have carefully studied this ruling. The facts of that case are distinguishable from the facts of the case on hand. On the question of maintainability, it was observed by their Lordships of the Supreme Court that there were several judgments for and against the proposition whether the remedy by way of constitutional petition could be availed of in election matters or the only remedy was by way of election petition, as prescribed by rule 65 of the Sind Local Council (Election) Rules, 1979. On this point there was no finding recorded by the Hon'ble Supreme Court, and we feel no inhibition in entertaining this petition on appreciation of the special circumstances of this case.
16. The other point decided by the Hon'ble Supreme Court was that if any change was effected in the delimitation of a constituency and it was published in a manner other than a Gazette notification, then it was a proper compliance of rule 10(2). In the present case, as stated above, the change brought about by pruning away areas 1-A/1, 1-Al2 and 1-A/3 was neither notified in the Gazette nor published in any other manner. Moreover the voters who were eligible to vote in this constituency, were denied the right exercise their franchise in this constituency and it cannot be denied that it has resulted in a great prejudice to the petitioneRs, ' We would accept this petition and declare that the election to K.M.C. Unit No, 137 Karachi is void ab initio and has been unlawfully held. We would direct respondent No, 1 to hold fresh election in K.M.C.
17. Unit No, 137 after complying with all the rules and in accordance with law. This Judgment will dispose of the other connected petition (C.P. No, D-851/1983) also, because the election to Unit No, 137 has been challenged in both the petitions on the same grounds against the same respondents by different petitioneRs,