ISLAMABAD  -  The Supreme Court on Wednesday suspended the decision of Lahore High Court wherein it had allowed recounting of votes in NA-131 on the petition filed by Pakistan Muslim League-Nawaz leader Khawaja Saad Rafique after Pakistan Tehreek-e-Insaaf Chairman Imran Khan was declared as returning candidate with a margin of 680 votes.

The top court also observed that Imran Khan’s statement regarding reopening of problematic constituencies was a political statement while the court decides cases in accordance with the law. A three-judge bench headed by Chief Justice Mian Saqib Nisar and comprising Justice Ijazul Ahsan and Justice Umar Ata Bandial took up the Pakistan Tehreek-e-Insaf Chairman Imran Khan’s appeal challenging the LHC decision of allowing recount of votes in NA-131.

Sardar Aslam, counsel representing Rafique, contended before the bench that RO had the powers for recounting of votes when the margin of votes, a returning candidate bagged, was less than five per cent.

The bench, however, questioned the jurisdiction under which the LHC had interfered in the matter of ECP’s domain. Justice Ahsan questioned as to how recounting could be made after final process of consolidation.

Rafique’s counsel said that Imran Khan in his victory speech had promised for reopening of all problematic constituencies. But the chief justice remarked that it was a political speech as the court decides the cases in accordance with the law.

Imran Khan had obtained 84,313 votes while his opponent, former railway minister Rafique obtained 83,633 in July 25 elections from the Constituency NA-131 Lahore--ix.

Rafique had filed an application before the returning officer for recount of votes and same was allowed to the extent of the recount of entire rejected votes but Imran Khan was again declared as returned candidate.

After the process of recounting of rejected votes of entire constituency, Rafique again requested for recount of entire valid votes of the constituency and same was turned down keeping in view the bar on second time recounting under the Election Act 2017.

Rafique then filed an application against the said order on July 28 before the Election Commission of Pakistan (ECP) in terms of Section 95(6) of the Election Act 2017. Instead of waiting for the order of ECP, Rafique moved a writ petition in the LHC which on August 4 allowed recounting of votes.

Being aggrieved and dissatisfied, Imran Khan challenged the LHC order in the top court.

The petition filed by Babar Awan, counsel for Imran Khan, stated that LHC judgment was against the well-entrenched constitutional provision and electoral laws as well as facts of the case.

It added that it was mandate of the law as laid down by the top court in number of cases that a writ petition was only maintainable under Article 199(1) of the constitution if the aggrieved person had no other alternate efficacious remedy in accordance with law.

A person after choosing statuary remedy cannot abandon it and rush to file a writ, the petition stated, adding the process of consolidation could not be reversed under the writ jurisdiction while adversely affecting the process of democratic transition.

The order passed by LHC Justice Mamoon-Ur-Rasheed is not sustainable in terms of provisions of Article 218(3) and 225 of the Constitution, it stated.  The petition further contended that the bar contained under Section 95 of the Election Act 2017 could not be lifted while exercising power under Article 199. The second recount of votes carried out in the presence of the parties once completed cannot be redirected for the recount on the same grounds under the provision of Election Act 2017, it argued.

It further argued that the order of LHC suffered from the material irregularities and the returning officer shall become functus officio on the completion of consolidation process.

After the arguments, the top court suspended the LHC’s order of recounting in the said constituency.

Later talking to media, Awan told that the notification of win in three out of five constituencies were subject to the orders of decisions on cases pending at different forums.

He said that matters regarding NA-95 (Mianwali I), NA-35 (Bannu) and NA-243 (Karachi East II) constituencies will also be decided soon in his client’s favour.

Meanwhile, the same bench also rejected Awami Raj Party Chairman Jamshed Dasti's request for a vote recount in NA-182 Muzaffargarh. The bench directed Dasti to approach the appropriate election tribunal.

 

 

SYED SABEEHUL HUSSNAIN