AMIR HAN1 MUSLIM, J.--- Through this Election Petition, the petitioner has challenged the elections of respondent No. 15, Umer Sadiq, who alongwith the other respondents contested the election for the Provincial Assembly Seat PS-90, Karachi-II, and was declared as ' Returned Candidate' on securing highest numbers of votes of 10003, against the petitioner, who secured 8515 votes. A Notification to the effect notifying the respondent No. 15 as ' Returned Candidate' was issued by the Election Commission of Pakistan pursuant to the results of count in Form XVII communicated by the Returning Officer to the Election Commission.
2. The Election Petition has been filed on the ground that the Election Commission has issued a Notification on 28.6.2002, under Section 9 of Delimitation of Constituencies Act, 1974, finalizing the different Polling Stations. The constituency PS-91 Karachi III was given the following areas whereas constituency PS-90, Karachi it was given the following areas:- PS-91, Karachi III.
(i) Charge No. 16
(ii) Charge No. 17
(iii) Charge No. 18
(iv) Charge No. 19
(v) Charge No. 20
(vi) Charge No. 12 PS 90, Kirachi-II
(vii) Charge No. 15
(viii) Charge No. 29
(ix) Charge No. 40
(x) Charge No. 41
(xi) Charge No. 34
3. It was further pleaded in the petition that Polling Stations Nos. 80 to 85 of PS-91, Karachi-Ill which formed the part of the area of Charge No. 42 and fell within the limits of the constituency of PS-91, Karachi-Ill, were inadvertently included within the constituency of PS-90, Karachi-II, in the official gazette published on 14.9.2002 by the Returning Officer.
4. It was also pleaded that Polling Station No. 57 which fell within the limits of PS-91, Karachi-111 was originally the Polling Station within the constituency PS-90, Karachi-II and was wrongly excluded from the PS-90.
5. The petitioner further pleaded that delimitation in the manner stated herein above was violative of the mandatory provisions of Section 8 of the Representation of Peoples Act, 1976, read with Paras.
12 to 13 of the guidelines issued by the Election Commission of Pakistan as per the annual of Instructions.
6. It was further pleaded that Charge No. 42 included the areas, namely, Hazara Colony, Gulshan- e-Ghazi, Blocks ' A' and ' B' were originally part of Charge No. 15 as per record of census in 1998. It was stated that Hazara Colony, Gulshan-e-Ghazi and Blocks A and B which areas were originally part of Charge No. 15 has wrongly been included as part of Charge No 42 in PS-91, Karachi-III, as a result of which the petitioner has lost the elections. According to the petitioner the registered voters of the aforesaid areas were about 7,300/- and the total cast in these areas were 2,477. The petitioner lost the elections by 1,388 votes and in the event if the aforesaid areas of Charge No. 15 were not excluded from the constituency of PS-90 and included in Charge No. 42 in the constituency of PS-91, the petitioner would have succeeded in the elections. It was pleaded that violation of the nature was covered by Section 8 of the Representation of People Act, 1976 and the guidelines of Para 15(b) of the Manual of instruction issued by the Election Commission, which has materially affected the results. Petitioner on the aforesaid grounds has made following prayers:- "The petitioner, therefore, respectfully prays that this Honourable Tribunal may be pleased to declare the election of PS-90, Karachi-II as a whole void in pursuance of Section 70 of the Representation of People Act, 1976."
7. As against this, the respondent No. 15 has filed his written statement disputing and denying the various averments made in the petition. The other respondents though served did not put in appearance and by order dated 6.2.2003 they were declared ex parte.
8. On 7.3.2003 following issues were framed:-
(1) Whether the Election Petition as filed by the petitioner is not maintainable?
(2) Whether the act of Returning Officer to put the area of Charge No. 42 in Polling Stations Nos. 80 to 85 of PS-91, Karachi-Ill as published in official Gazette Notification No. DRO/KAR/WEST/1369/2002, dated 14th September, 2002, is a clear violation of mandatory provision of Section 8 of the Representation of People Act, 1976, as well as prescribed guideline contained in the Paras 12 to 15 and 15-B manual of instructions to RO/DRO and what is the effect?
(3) Whether the Returning Officer has wrongly given this certificate as required under Notification of 14th September, 2002?
(4) Whether the Hazara Colony, Gulshan-e-Ghazi, Block A&B, etc. Is the part of Charge 15, PS-90, has been wrongly shown in PS-91 Charge No. 42?
(5) Whether the non-compliance and contravention of mandatory provision of Section 8 of the Representation of People Act, 1976, and rules framed thereunder and guidelines prescribed by Election Commission has made the election of respondent No. 1 wholly illegal and void?
(6) Whether the breach of mandatory provision of the act and rules made by the Returning Officer has materially affected the fairness and impartiality of the election and as such the result of constituency has been badly effected and the said election be declared void under Section 70 of the Representation of People Act, .1976?
(7) Whether the result announced by the Returning Officer is not in accordance with law?
(8) Whether the actions of the Election Functionaries have materially effect the results of the Election?
(9) What should the order be?
9. The petitioner examined Nasir Abbas, PW-1, Assistant Election Commissioner, who produced the Notification No. DRO/Karachi West/1368/2002, dated 14.9.2002 issued by the District Returning Officer as Exhibit- 2, Notification No. F-10 ( 116 )/2002-Cord., dated 28.6.2002 issued by Election Commission of Pakistan as Exhibit-3, Mazhar Jameel, PW-2, Assistant Census Commissioner, who produced authority letter of Farooq Ahmed as Exhibit-5, Copy of the letter dated 2.12.2002 signed by Farooq Ahmed, Deputy Census Commissioner (G) as Exhibit-6 and the copy of map of defunct ZMC (West) Karachi as Exhibit-7, Mrs. Qaisar lqbal, PW-3, the. District Returning Officer, who produced certificate which is on the last page of Exhibit-2, as Exhibit-9, Mian Mohsin Raza, PW-4, the Returning Officer of PS-90, who produced certificate issued by him as Exhibit-11, Dr. Muhammad All Brohi, PW-5, the petition who produced memo. Of petition and Affidavitin-Evidence as Exhibit-13 and 14 respectively and copy of Form XVII as Exhibit-15, photocopy of Notification No. F.2(35)/2002-Cord., dated 20.10.2002 as Exhibit-16. And copy of Notification dated 28.3.2002 as Exhibit-17. The petitioner thereafter has closed his side.
10. The respondent No 15 has himself appeared and was examined as Exhibit-18. The respondent No. 15 has produced copies of his Affidavit-in-Evidence and his written statement as Exhibit-19 and Exhibit-20 respectively, copy of Election Scheme as Exhibit-21 and copy of the certificate issued by the Returning Officer of PS-91 as Exhibit-22. Thereafter the respondent No. 15 has dosed this side.
11. Mr. Fazle Ghani Khan, learned counsel for the petitioner has argued that the notification dated 28.6.2002 (Exhibit No. 3) issued by the Election Commission pursuant to sub-section (3) of Section 10 of the Delimitation of the Constituencies Act, 1974 (XXXIV of 1974) read with Article 4, 5 and 6 of the Conduct of General Elections Order, 2002 by which the final list of the constituency of the National Assembly of Pakistan and the Provincial Assemblies of different provinces were given showed constituency PS-90, Karachi-11 had within its limits charge No. 15 and constituency of PS- 90, Karachi-Il had within its limits charge No. 42. He submits that subsequent to this notification of the Commission, the District Returning Officer had issued a notification Exhibit-2, dated 14.9.2002 in exercise of his powers under sub-section (2) of Section 8 of the Representation of Peoples Act, 1976 finalizing the list of polling stations. Under this Notification the charge No. 42 was shown to have areas of Hazarah Colony and Gulshan-e-Ghazi' within its limits, which charge No. 42 falls under PS-91, Karachi-III.
12. Mr. Fazle Ghani Khan, had submitted that ' Hazarah Colony, Saeedabad, Govt. Boys Primary School and Makkah Masjid were the areas which originally were within the territorial limits of charge No. 15 which as per the Notification of the delimitation dated 28.6.2002 were included with in PS-90. He has relied. Upon a letter of 2.12.2002 which was issued by the Deputy Census Commissioner and was produced as Exhibit-6. Mr. Fazle Ghani Khan has argued that according to the census delimitation the areas shown in Charge-15 were excluded while finalizing the Polling Stations by the Returning Officers of PS-90. He further submitted that the certificate issued by Returning Officer Exhibit-9 was contrary to the record. According to Mr. Fazle Ghani Khan that charge No. 42 was wrongly mentioned as part of constituency of PS-91 in the Notification Exhibit-3 as it was part of PS-90. According to Mr. Fazle Ghani Khan the respondent No. 13 (Returned Candidate) has secured 10003 votes, whereas the petitioner has secured 8,515 votes. The difference of votes between the two candidates was of only 1,388 votes. Mr. Fazle Ghani Khan submitted that the total registered votes in the areas which were wrongly excluded from PS-90 were 7,300 whereas 2,477 votes were cast in all and the difference between the votes secured by the respondent No. 1 and the petitioner was only 1,388. He, therefore, submitted that had the said original area of charge No. 15 was included in PS-90, the petitioner would have secured more votes and would have defeated the respondent No. 1. He submitted that the action on the part of the Returning Officers in excluding the areas of charge No. 15 was illegal which materially affected the results to the disadvantage of the petitioner and, therefore, the petitioner has sought the declaration of election of PS-90 void as a whole.
13. It is further argued by Mr. Fazle Ghani Khan that the action of the Returning Officer notifying Exhibit-3 in the manner was violative of the guidelines of the Election Commission which is read as under:- Article 13 of the General Elections, 2002, Manual of Instructions are as follows:-
13. It should kindly be carefully noted that no change will be made by the Returning Officer and District Returning Officer in the list of polling stations, after publication of this list: Similarly, change of the polling staff will not be possible after their appointment has been made by the Returning Officer, without prior approval of the Commission.
Section (vii) of the General Elections, 1997, Manual of Instructions are as follows:- "(vii) Territorial limits of constituencies: In no case the Polling Station should be set-up outside the territorial limits of a constituency. It will be illegal to do so. A special case will have to be taken in this matter in view of the fact that elections to the national and provincial assemblies constituencies are being held on the same day as in some cases, there can be a change of making a mistake in the matter, a special caution is necessary with regard to this particular legal point and in assigning the electoral areas to the polling stations."
14. He has relied upon the case of Vashist Narain v. Dev Chandra reported in AIR 1954 SC 317, Tazuddin Ahmed v. Dhani Ram, reported in AIR 1959 Asam page 128 and the case of Mian Zulfiqar A.I Shah v. Ghulam Hyder, reported in PLD 1974 Note 92 in support of his arguments.
15. As against this Mr. Shuaun Nabi, learned counsel for the respondent No. 15 (the Returned Candidate) has submitted that the petitioner merits dismissal as no illegality has been committed by the learned Returning Officer and Exhibit-2 notification dated 14.9.2002 was competently issued by the learned Returning Officer in accordance with law. He further submitted the letter Exhibit-6 has been procured after a delay of more than one month of the elections and such letter was issued by the Deputy Census Commissioner on the application of the petitioner dated 2.12.2002. He submitted that once the petitioner without objecting the notifications Exhibits-2 and 3 had participated in the elections, held full-fledged campaign estopped in law, to file a petition of the nature and the petition, therefore, merits dismissal.
16. I have heard the arguments of both the learned counsel and have perused the record. It is an admitted fact that the petitioner did not object to the notifications Exhibits-2 and 3 from the date of their issuance till the elections were over. Exhibit-3 has been issued by the Election Commission on 28.6.2002 delimiting the different constituencies followed by the Exhibit-2 issued by Returning Officer on 14.9.2002. The main arguments of Mr. Fazle Ghani Khan was that the letter of Deputy Census Commissioner Exhibit-6 reflected the different areas in charge No. 15 which areas were changed by the Returning Officers in Exhibit-2 which finalizing the Polling Stations, therefore, the violation of the nature would lead to nullifying the results. I am afraid that if a party participates in the elections without objecting to in the given circumstances, the petition of the nature would not lie on the issue raised in these proceedings unless the party to the petitioner has exhausted remedy by making representation/appeal to the Election Commission when the Polling Stations according to him were changed by mentioning wrong areas in charge No. 15 as part of PS-90.
Section 8 of the Representation of Peoples Act, 1976 clearly provides that the finalization of the list of the Polling Stations by the Returning Officers is subject to the directions of Commission. Moreover, Section 6 of the Election Commission Order, 2002, fully authorize the Election Commission to take note of such irregularities if they are committed by the Returning Officers and issue appropriate directions. The arguments of Mr. Fazle Ghani Khan that the petitioner did not have any remedy after the issuance of the Notification Exhibit-2 is not correct. The Commission can always come forward to redress the grievance of an aggrieved party if the party approaches the Commission for rectification. Moreover, the Census delimitation on which the entire arguments of Mr. Fazle Ghani Khan are based do not debar the Election Commission and or Returning Officer to exercise of powers conferred under Section 8, 9, 10 and 10-A of the Act (XXXIV of 1974) and or under the Representation of Peoples Act, 1976 respectively. The provisions in regard to ,census are covered by the Census Ordinance, 1959 (X of 1959) under which the Government from time to time in order to obtain certain information with respect to the population of and housing conditions in Pakistan has promulgated the Ordinance authorizing its different functionaries to collect the data for the aforesaid purposes. his Census Ordinance in no way could restrict the exercise of ower of the Election Authorities and or of the Returning officers. Even there is no material placed before this Tribunal which could reflect that the Returning Officer was duty bound o look into the delimitation done by the Census department before finalizing the list of Polling Stations. Nor there is any such provision of law which makes obligatory on the Returning officer to such material in confidence.
17. I am with profound respect is not persuaded by the arguments of the learned counsel for the petitioner that this as an illegality which renders the whole elections void. More articularly when no allegation has been levelled against respondent No. 15 that he was either instrumental or was in ny way responsible for the alleged change of area. Since the petitioner did not object to the Notifications Exhibit-2 and or Exhibit No. 3 at appropriate time this Tribunal would not sit in appeal to review the notifications through Election Petition as it is the responsibility of the party to approach the appropriate forum at the relevant time to procure the defect if any and a party which has contested the elections, participated in election campaign would not be allowed to subsequently raised objection of the nature through these proceedings after the election. The judgments cited by the learned counsel for the petitioner are distinguishable on facts and, therefore, are of no help.
18. In these circumstances, for the foregoing reasons this petition is dismissed.