etc Muhammad saleem Khan Vs ECP

I

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

1.W.P No. 503-l'I/2018 with I.R (Muhammad Saleem Khan Vs. Election Commission of Pakistan through Secretary and others)

2.W.P No.510-M/2018 with I.R (Bashir Ahmad and others Vs. Election Commission of Pakistan and others)

3.W.P No.512-M/2018 with I.R @ost Muhammad Khan Vs, The Chief Election Commission of Pakistan and others)

4.W.P No.513-M/2018 with I.R (Naveed Ali Khan Vs. Election Commission of Pakistan through Secretary and others)

5.W.P No.514-M/2018 with I.R (Hazrat Umar and others Vs. Election Commission of Pakistan through Secretary and others)

6.W.P No.518-M/2018 with C.Ms 698 & 699/2018. (MumtazWajeed Vs. Election Commission of Pakistan Through Secretary and others)

7.W.P No.5l9-M/2018 with I.R I (Haider Ali Vs. District Election Commission Swat and others)

8.W.P No.532-M/2018 with I.R (Gohar Zaman Vs. Election Commission of Pakistan through Secretary and others)

Present: WS Sher Muhammad Khan, Sajjad Anwar, Muhammad Nabi, Inayatulluh Khan, Aurangzeb, Rana Muhammad Khalid Javed, Haq Nawaz Khan and Mujahid Farooq, Advo cates for petition ers.

Mr. Muhammad Adil, Advocatefor Election Commission, Khyber Pakhtunkhwa alongwith Mr. Abdul Qadar, Distrlcl Election Commissioner, Peshawar.

Mr. IjazAhmad, District Election Commissioner, Swat. Mr. FaizMuhammad, Distrtct Qanungo, Swal.

Date of hearing: 06.06.2018

JUDGMENT

OALANDAR ALI KHAN, J.- This single judgment shall dispose of all the below mentioned eight writ petitions arising out of orders of the Election rajamul/Ps'l DB: Mr. Justlce qahndar All Khan and Mr. rustlce Muhammad Ghazantar Khan M.P No. 503-M of 2018 Muhommod Sdleem Khon Vs. Election Comml$lon of Poklston and oth.E)

Commission of Pakistan on the representations of the petitioners against delimitation of National Assembly constituencies as well as constituencies of Provincial Assembly of Khyber Pakhtunkhwa mentioned therein:-

(i)W.P No. 503-1W2018 with I.R (Muhammad Saleem Khan Vs. Election Commission of Pakistan through Secretary and others) In this writ petition, the petitioner, Muhammad Saleem Khan, assailed order dated 04.04.20L8 of the Election Commission of Pakistan i.e Respondent No.l on the representation of the petitioner against delimitation of National Assemblies of Swat District i.e NA-2 Swat 1 and NA-4 Swat III prepared on the recommendations of Respondent No.3 i.e Convener Delimitation Committee, inter alia, onthe grounds that order of Respondent No.1 was against law and rules framed under the Election Act, 20L7; that the proposed constituencies NA-2 Swat 1, and NA-4 Swat III had been drawn/finalized without adhering to the principles of delimitation as enunciated in Section 20 of the Election Act, 20t7, read with rule 10 of the Election Rules, 2017 that the proposed constituencies of NA-2 Swat 1 and NA-4 Swat III break the administrative unit of Tehsil Matta in multiple ways thereby negatively affecting the electoral process and interests of public at Talamu/Ps'l DB: Mr. Justke qtlandarAll Khan and Mr. Justle Muhammad Ghaanfar Kh.n (w.P No.1og-M ol2018 Muhommod Solen Khdn vs. Electlon commhslon ol Pokiston ond othe6)

large; that Matta tehsil has been divided into two National Assembly constituencies thereby causing concerns to the petitioners, residents and voters of Tehsil Matta; that the proposed constituencies had violated principles of homogeneity and public convenience; that compactness of the areas and geographic spirit of the territory have not been taken into consideration in the proposed delimitation; that Respondent No.1 while deciding the representation of the petitioner did not discuss a single point for dismissal of the above mentioned representation of the petitioner.

ii)W.P No. 510-1![/2018 with I.R (Bashir Ahmad and others Vs. Election Commission of Pakistan and others)

Bashir Ahmad and six other petitioners called in question detachment of Karapa Union Council from Tehsil Daggar and its inclusion in Tehsil Gagra for the purpose of proposed constituency PK-21 (Buner-II).

They prayed for alteration and modification of proposed PK-21 and reallocation and inclusion of Karapa union council in PK-20 (Buner-l) which was earlier PK-79 Buner III.

iii)W.P No. 512-M/2018 with I.R

Trlrmu[Ps'l 08: Mr, Justlcc Qaland.r All Khan and Mr. ,ustlce Muhrmmad GhaE.f.r Khan (W.P No. 50j-M of 2018 Muhonnod soleem Khan Vs. Eledlon Commisslon of Pokiston ond oth.6)

(Dost Muhammad Khan Vs. The Chief Election Commissioner of Pakistan and others)

This writ petition by Dost Muhammad Khan, challenges breaking of administrative units of Tehsil Charbagh and inclusion of four Patwar Circles of the area with Khwaza-Khela in clear violation of ECP Delimitation Rules, 2017. The petitioner also complained of long distances in the areas in one Provincial constituency and lack of communication links between the areas included in PK-3, PK-4 and

PK.5.

iv)W.P No. 513-l\[/2018 with I.R Qtlaveed Ali Khan Vs. Election Commission of Pakistan through Secretary and others)

The instant writ petition by Naveed Ali Khan pertains to the Provincial Assembly constituencies of District Swat wherein the order of rejection/dismissal of his representation by Respondent No.l has been assailed on the ground that the Election Commission of Pakistan failed to take into consideration the breaking of Patwar Circle Tiligram at the time of delimitation of the Provincial Assembly constituencies as three Mauza Jaat of the said Patwar Circle i.e Sheen Kat, Seer, and Tuha were made part of PK-3 and likewise the other Patwar Circles were also broken without taking into consideration this fact that the voters of these areas will rrJrmul/Ps'l DB: Mr. Justlce qalandar All Khan and Mr, Ju5tlce Muhammad Gharanlar xhan (W,P No. 503-M o12018 Muhommod Soleem Khon Vs. Electlon Commission ol Pokiston ond others)

now have to cover long distance of several kilometers to reach to the other area in the same constituency. The petitioner is also aggrieved of inclusion of rural area in the urban constituency. It was pointed out in the writ petition that two Patwar Circles i.e Marghuzar and Islampur had no direct link to otler parts of PK-4 and that other Patwar Cirles of Jambel and Dangram were situated in between the two Patwar Circles, therefore, the people/voters ofthis constituency will have to cross the other constituency PK-5 in order to reach the other side ofthe constituency after covering distance of30 to 35 kilometers.

v w.P 514- 18 with I.R (Hazrat Umar and others Vs. Election Commission of Pakistan through Secretary and others)

This writ petition of Hazrar Umar and 130 other petitioners also pertains to the breaking of administrative units of Tehsil Babozai, Tehsil Kabal, Tehsil Barikot and Tehsil Charbagh. They also complained of non-consideration of their proposals by the Election Commission of Pakistan while rendering decision on their representation.

vi)W .P No. 518-lW2 018 with C.M s 698 and 699t2018

oB: Mr.,u.rk. q.l.nd.r Arl Kh.n.nd M. Junk Muh.hnsd Gh.Dnt rxh.n (w.P No- 503-M ol2ue Muhd6r.d sob.n Khon vt- al.aion connkston oJpakht n ond oth.B)

(Mumtaz Wajeed Vs. Election Commission of Pakistan through Secretary and others)

The petitioner in the instant writ petition namely Mumtaz Wajeed also joins other petitioners in the connected writ petitions to raise objections to the delimitation of the National and Provincial Assembly constituencies and also assailed impugned order of the Election Commission of Pakistan dated 04.04.2018 on the ground that objections and proposals of the petitioner with regard to the delimitation of the Notational and Provincial Assembly constituencies were not taken into consideration and thus illegalities and irregularities committed in the delimitation were d to the detriment of local population and voters in the said constituencies.

vii)W.P No. 519-M/2018 with I.R (Haider Ali Vs. District Election Commission, Swat and others) Haider Ali, petitioner, is also aggrieved of non- consideration of his objections to the delimitation, which was contrary to the ground realities, thus causing undue hardships to the voters of Provincial Assembly constituencies owing to long distances and breaking of the administrative units.

viii)rrjamul/Ps'I DB: Mr, Justle Qll.nd.r All fh.n and Mr. Jusdcc Muhammad Ghaanf.r Khan (W.P No. 503-M of 2018 Muhommod Solem Khon vs. Election Commlsslon otpokiston ond othe6)

(Gohar Zaman Ys. Election Commission of Pakistan through Secretary and others)

In this writ petition, the petitioner, Gohar Zaman, also called in question inclusion of Gulkada No.2 & 3 in PK-4 Swat III on the ground that Gulkada No.2 & 3 had the characteristics of urban city while rest of area of PK-4 Swat was rural; but objection to that effect was ignored by the Election Commission of Pakistan while rendering decision on the representation vide impugned order dated 04.04.2018.

2 After brief resume of all the eight writ petitions under consideration, we first advert to Writ . Petition No. 510-IW20l8 by Bashir Ahmad and others who call in question order dated 06.04.2018 of the Election Commission of Pakistan, whereby their representation against the preliminary delimitation notified on 05.03.2018 regarding Provincial Assembly constituency PK-21 (Buner II) was dismissed. In his representation to the Election Commission of Pakistan, the petitioner had proposed that Patwar Circles Karapa and Nawan Kalay Panchpaw of Daggar Tehsil may be excluded from PK-21 (Buner II) and included in PK-20 (Buner I). The Election Commission of Pakistan dismissed representation of the petitioners, mainly, on the ground that respective Patwar Circles were DA: Mr. llrlk. qabnd.r Ala Khan .nd Mr. Jrtlic. Muh.mm.d Gh.:.nl.r (h.n lw.P No. sot-M ol 2or| Muhonnad Sot..h Khon vt. Eh.tion cohftttlon ol pdkistan ah.t orh.b)

excluded from Tehsil Daggar to rationalize the population between two constituencies PK-20 and PK-21. The Election Commission of Pakistan funher held that keeping in view the requirement of Section 20 of the Election Act, 2017, Geograpical locations, compactness and homogeneity, it was found that the inclusion of Patwar Circle Karapa and Nawa Kalay in respective constituency was quite plausible and did not violate any of the ingredients required by law, especially when the adjustment was needed to balance the population

Having heard learned counsel for the petitioner and also having gone through the record made le before us, including maps of the area, we found nothing to persuade us to arrive at a conclusion other than arrived at by the Election Commission of Pakistan, as the main plea of the petitioners that Karapa union council has been detached from Tehsil Daggar and included in Tehsil Gagra would not make the delimitation against the relevant provision of law so as to warrant interference by this Court in its extra ordinary constitutional jurisdiction. Even otherwise, the factual controversies raised in the writ petition in regard to the delimitation cannot be resolved in writ rrjamul/Ps'I DB: Mr. Ju3tlca Qalandar All fhan and Mr, Justic€ Muhammad Ghattnfar Khen (W.P No, 503-M ol 2018 Mlhommod Soleeh Khon Vs. Election Commision of pokiston ond otheB)

jurisdiction of this Court. Therefore, we find no merit in this writ petition.

3.Muhammad Saleem Khan, petitionerrin

W.P No. 503-M/2018, is basically aggrieved of order of the Election Commission of Pakistan dated 04.04.2018 whereby his representation alongwith other connected petitions was dismissed. According to the petitioner, in his representation/ petition, he had raised a number of issues relating to the breaking of administrative unit of Matta affecting the electoral process and population in the proposed constituencies of NA-2 Swat I and NA-4 Swat III, which were indeed to in Para 2 of the impugned judgment, but no decision was rendered on the obiections raised in the representation of the petitioner, thus leaving all the pertinent issues relating to delimitation undecided.

While referring to Para 4 of the impugned judgment, the learned counsel for the petitioner urged that the entire discussion therein centers around the provincial constituencies of Swat district with not even a single reference to the National Assembly constituencies of Swat district

After going through the impugned order dated 04.04.20L8, we cannot help but to subscribe to the Iajamul/Pst I DBr Mr. Juttlc. qal.ndar All Xhan and Mr. Jusuce Muhammad GhaEnr.r fhan (W.P No. 50i-M of 2018 Muhammod Soleem Khon Vs. Elcc,ilon Comdisston olpoktstcn ond oth.B)

contentions of learned counsel for the petitioner that his grievances with regard to constituencies of National Assembly in Swat district remained unattended and no decision was rendered thereon by the Election Commission of Pakistan. In the above stated situation, we are left with no other option but to remiUsend back representation of the petitioner to the Election Commission of Pakistan for consideration of the objections to the delimitation of National Assembly constituencies in Swat district by the petitioner, and rendering decision in accordance with the relevant provision of law; while being conscious of the fact that Election Commission of Pakistan is the proper forum for adjudication upon the factual issues raised in the representation, which obviously fall outside the domain of constitutional jurisdiction of this Court.

4.The petitioners in Writ Petitions No. 5 2-IW2018, 5 l3-M12018, 514-]|lf/20 I 8, 5 1 8-l\4/ 2018, 519-IU/2018 and 532-W2018 had raised objections to the delimitation of Provincial Assembly constituencies in District Swat in their representations to the Election Commission of Pakistan, inter alia, on the grounds that the delimitations were in total deviation from the provisions of Section 20 of the Elections Act,2017 and Rule l0 of the Election Rules, Da: Mr, ,uttrc. Q.l.nd.r alr Kh.n .nd Mr. Jcatlc. Muh.mm.d Gh.tml.r xh.n fw-P No- so3-M ol2or, Mthdnhod solee Khdnvt. El.e onCohihtiono,Pokktord.doth.rt)

2017, while pointing out specific instances of disturbance of population in geographically compact areas, ignoring physical features, overlooking existing boundaries of administrative units, rather disturbing the administrative units, and without taking into consideration the important factors of facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies in accordance with the letter and spirit of Section 20 of the Elections Act, 2077. While quoting specific examples of breaking Patwar Circles, in total disregard of the mandatory provision of Rule I 0 of the Election Rules, 2017, the petitioners urged that such flagrant violation of mandatory provisions of law and ruIes vitiated the delimitation process; but, according to them, their grievances relating to such deviations and departure from the mandates of law were neither considered; nor, as such, any decision rendered on the issues raised in their representations to the Election Commission in the impugned judgments dated 04.04.2018

During the course of their arguments, the learned counsel for the petitioners particularly referred to the breaking of Patwar Circles Tiligram and likewise, inclusion of Tehsil Charbagh in PK-4 in a Trirmu/Ps'l D8: Mr, Justlce qaland.. All Khan and Mr, Justice Muhammad Gharanfar Khan (W.P No. 503-M of2078 Muhonmod Soleem Khon Vs. Election Commlssion ofPokiston oDd othe$)

part of Patwar Circle Qambar included in Municipal Committee Mingora whereas the remaining part of Patwar Circle Qambar made part of PK-6 and, similarly, making Patwar Circles Marghuzar and Islampur part of PK-4 having no direct link and situated across the mountains. They also cited a number of other instances whereby erstwhile administrative units have been broken without taking into consideration that the inhabitants of those areas would be facing communication problems due to intervening rivers and mountains which practically rather damaged, compactness and homogeneity; but such glaring violations of the mandatory provisions of law escaped notice of the Election Commission of Pakistan while dealing with the representations of the petitioners as not even reference was made to such objections contained in the representations of the petitioners, hence not only rendering the impugned order dated 04.04.2018 not sustainable in law, but also necessitating reconsideration of the specific issues raised with regard to delimitation of the Provincial Assembly constituencies of Swat district in the representations of the petitioners in accordance with the letter and spirit raJamul/Ps'l OB: M.. Justlce qalandar All Khan and Mr, Justice Muhammad Ghazanlar Khan (W.P No. sOi-M of 2018 Muhommod Solecm Khon Vs. Election Comdlssloh ol Pokistdn ond othe6)

of the relevant provisions of Elections Act, 2017 and Election Rules 2017.

J. In view of the foregoing discussion, W.P No. 510-IU/2018 is dismissed being devoid of substance; while the remaining W.P Nos. 503-IW2018, 512-M1201 8, 5 l3-M/2018, 5r4-M/201 8, 5 1 8-IW2018, 519-M12018 and 532-M/2018 are allowed in the terms that representations of all the petitioners in the said writ petitions are deemed to be pending before Election Commission of Pakistan for reconsideration and decision in accordance with the provisions of Elections Act,2017, and Election Rules, 2017.

Announced.

Dt: 06.06.2018

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Ta;amu/Ps'l DB: Mr. Justka qalandar All Khan and Mr. rustlce Muhammad Gharanfar Khan (w.P No. sO:t-M ol 2018 Muhommad Sqhm Khan vs. Electlon Commi*lon ol Pokitton ond othe6)