P L D 2024 Balochistan 137
Before Shaukat Ali Rakhshani and Sardar Ahmed Haleemi, JJ
SHAZAIN BUGTI ---Petitioners
Versus
ELECTION COMMISSION OF PAKISTAN (ECP), SECRETARIAT, ELECTION
HOUSE and 7 others ---Respondents
Constitution Petitions Nos.(s) 10 and 11 of 2024, decided on 26th January, 2024.
Elections Act (XXXIII of 2017) ---
----Ss. 8(b)(c) & 59 ---Election Rules, 2017, R. 50---Constitution of Pakistan, Arts. 199 &
218(3) ---Constitutional petition ---Election dispute ---Polling stations ---Shifting/relocation ---
Safety and security ---Applicability ---Petitioners/candidates were aggrieved of
shifting/relocation of polling stations ---Contention of authorities was that there was perilous
law and order situation that could lead to sabotaging the election process or could influence voters or put their lives in danger, therefore, polling stations in question were shifted and relocated accordingly ---Validity ---Such shifting and relocation of polling stations is
prerogative of Returning Officers and District Returning Officers under the supervision of Election Commission of Pakistan, which is duty bound to hold fair and free election as
guaranteed under Art. 218(3) of the Constitution as well as Elections Act, 2017 and Rules
framed thereunder ---Petitioners/candidates failed to resort to the remedy stipulated under S.
8(b) and (c) of Elections Act, 2017, before Election Commission of Pakistan---High Court in
exercise of constitutional jurisdiction declined to interfere in the matter as factual
controversies were involved regarding distance in between polling stations, and it required thorough probe and evidence ---Constitutional petition was dismissed, in circumstances.
Mehta Rajesh Nath Kohli and Mehta Mukesh Nath Kohli for Petitioner along with
Petitioner (in Constitutional Petition No. 10 of 2024).
Shehzad Aslam and Muhammad Raees, Assistant Directors Election Commission of
Pakistan (ECP) for Respondents Nos. 1 and 2 (in Constitutional Petition No. 10 of 2024).
Amir Zaman Jogezai, Additional Advocate General for Respondents Nos.3 and 4 (in
Constitutional Petition No. 10 of 2024).
Adnan Ejaz Sheikh, Advocates for Respondent No.5 (in Constitutional Petition No.
10 of 2024).
T.H Khan for Respondent No.7 (in Constitutional Petition No. 10 of 2024).
Mehta Rajesh Nath Kohli and Mehta Mukesh Nath Kohli for Petitioner along with
Petitioner (in Constitutional Petition No. 11 of 2024).
Shehzad Aslam and Muhammad Raees, Assistant Directors Election Commission of
Pakistan for Respondents Nos. 1 and 2 (in Constitutional Petition No. 11 of 2024).
Amir Zaman Jogezai, Additional Advocate General for Respondents Nos. 3 and 4 (in
Constitutional Petition No. 11 of 2024).
Adnan Ejaz Sheikh for Respondent No.5 (in Constitutional Petition No. 11 of 2024).
T.H Khan for Respondent No.8 (in Constitutional Petition No. 11 of 2024).
Date of hearing: 25th January, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---The petitioners have filed the captioned
Constitutional Petitions under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 ("Constitution"), wherein almost similar prayer has been made, which reads as under;
"It is therefore in view of the submissions made herein above respectfully prayed that
"a. That the Notification No:48/DC/DRO/Elec/2024/210/ 216, dated 22- 01-2024,
may kindly be cancelled/set -aside;
b. That the respondents may be directed to conduct the elections of PB -10 on the
previously allocated Polling Stations;
c. Any other relief which any be deemed fit and appropriate in the circumstances may also be awarded in favor of the petitioner."
2. Facts germane to the lis in hand are that the petitioners are contesting elections for the
National Assembly seat of NA -253 and the Provincial Assembly seat of PB -10, who statedly
came to know on 14.01.2024 at about 8:00 pm regarding shifting- relocation of 21 polling
stations ("polling stations in question") by Additional Deputy Commissioner -Retuning
Officer ("RO") of PB -10 Dera Bugti (respondent No.4) pursuant to letter bearing
No.49/ADC/RO/22 dated 11.01.2024 on the pretext of law and order situation in the light of a letter dated 12.01.2024 issued by Deputy Commissioner -District Returning Officer
("DRO") of NA -253 and PB -10 Dera Bugti (respondent No.3), whereof objections were filed
by the petitioners before Provincial Election Commissioner, Balochistan (respondent No.2) on 15.01.2024, the copies whereof were sent to the Chief Secretary, Balochistan and other respondents, following submission of another application dated 16.01.2024, but the same were turned down on the ground of law and order situation being the cause and that the last
date of receiving objections was 11.01.2024, hence this petition.
3. As the petitions in hand pertains to same constituencies and identical question of facts
and law are involved therein, therefore the captioned petitions are being decided through this
consolidated judgment.
4. Messrs Mehta Rajesh Nath Kohli and Mehta Mukesh Nath Kohli learned counsel for
the petitioners inter alia contended that their applications against shifting of 21 polling
stations in their constituency were rejected merely on the ground that they had filed the objections on 15.01.2024, whereas the cutoff date for submission of objections was 11.01.2024, which is not sustainable under the law. He further maintained that shifting of the polling stations vide impugned notification dated 22.01.2024 would cause great hardships and inconvenience to the voters as the distance in -between the polling stations is more than
one (1) kilometer, which is in utter violation of the provisions of the Election Act of 2017, ("Act of 2017"), which shall amount to depriving the voters from their constitutional right to vote, thus requested to set at naught the impugned notification and direct the respondents to conduct the elections on the basis of previously allocated locations in their constituencies.
Conversely, Mr. Amir Zaman Jogezai, AAG and Assistant Directors ECP,
Balochistan vigorously resisted the petitions for being not maintainable and devoid of merits. Mr. Shahzad Aslam, Assistant Director ECP urged that the instant constitutional petitions are not maintainable as the petitioners have got alternate remedy to seek redressal of their grievance before the Election Commission of Pakistan ("ECP"). According to him, the cutoff date for filing of objections was 11.01.2024, whereas the petitioners had filed their objections on 15.01.2024, thus their objections were rightly not entertained. He maintained that due to law and order situation the polling stations in questions have been shifted, thus such controversial fact cannot be looked into, as such, prayed for dismissal of the petition.
Mr. T.H Khan Advocate representing respondent Miyan Khan in C.P. No.10/2024 and
for respondent Jal -ur-Rehman in C.P. No. 11/2024 at the very outset questioned the
maintainability of the petitions on the ground that under section 8 clause (b) & (c) of the Act of 2017, the petitions merits dismissal as the petitioners have got remedy before the ECP, which they have not availed.
Mr. Adnan Ejaz Sheikh, learned counsel for respondent Sarfaraz Bugti urged that the
objections filed by the petitioners were beyond the stipulated period against the preliminary
Election Polling Scheme, whereof no plausible explanation or application for condonation of
the delay was filed by the petitioners. He further stated that shifting of the polling stations is the prerogative of the District Election Commissioner, DRO and RO, which cannot be challenged and interfered with, thus requested for dismissal of the petitions.
Barrister Zahoor Hassan Jamote, Advocate learned counsel for respondent No.6 Aftab
Bugti, while opposing the petitions stated that preliminary elections scheme was issued on 04.01.2024, which was made available on the website of ECP as well, thus the plea of the petitioners that they came to know at about shifting of the polling stations in question on 14.01.2024 is a vague and baseless plea, thus the petitions require to be dismissed.
5. Heard. Record sussed out with the able assistance of the learned counsel for the
adversial parties.
6. Article 218(3) of the Constitution confers responsibility upon the ECP to organize and
conduct elections and to make such arrangements as necessary to ensure the elections are conducted, honestly, justly and fairly in accordance with law and that corrupt practices are guarded against, whereas Article 220 of the Constitution bounds the executive authorities in
the Federation and Provinces to assist the ECP and Election Commissioner in discharge of
his or their functions in pursuance of the Articles of the Constitution ibid and the Act of 2017
and the Election Rules of 2017 ("Rules of 2017") framed thereunder.
7. The settlement of controversies pertaining to the polling stations are governed by
section 59 of the Act of 2017 and Rule 50 of the Rules 2017. Section 59 of the Act of 2017
contemplates that within a week after appointment of Returning Officer, the ECP shall
provide a prescribed format enclosed therewith a list of polling stations for each
constituency, which may be altered as may be required in order to reduce the distance preferably to one (1) kilometer between a polling station and the voters assigned to it but not
more than 1200 voters shall be assigned to a polling station, however, any deviation shall be
recorded in writing. The provision ibid also reads that the Returning Officer subsequently
within 15 days of the receipt of the list shall personally verify the proposed polling station and may add or alter list and shall publish the same outside his office, inviting objections and suggestions within 21 days of its publication as envisaged under clause (4) of section 59 of the Act of 2017. The objections and suggestions if any may be filed with the District Returning Officer who shall make a summary inquiry and if deems necessary may make alterations in the list of polling stations at least 30 days before the polling day and publish the list of the polling stations in the official gazette on the website of the ECP, which shall be final, which may be changed in exceptional circumstances as contemplated under clause (8) of section 59 of the Act of 2017 with the prior approval of the ECP, the copy whereof shall be transmitted to the candidates immediately and after notice to them not later than five days before the polling.
8. Reverting back to the instant case, suffice it to observe that the preliminary draft
Elections Polling Scheme was issued on 04.01.2024 and was statedly published on the ECP website accordingly, whereof objections were to be filed uptill 11.01.2024, but the petitioners failed to resort to the remedy within the stipulated period and came up with the objections on 15.01.2024, following another application dated 16.01.2024, which were rejected vide order dated 16.01.2024 on the ground the objections were fil ed beyond the
stipulated period and that due to the prevailing law and order situation as there being no proper government structure in the polling stations for the security cover for FC, levies and police, thus on the basis of receipt of proposals by the concerned officials, the polling stations in question were shifted to other locations. In the attending circumstances, we believe that the objections of the petitioners have rightly been rejected by the respondents. The letter dated 11.01.2024 addressed to the DRO mentions that a meeting was held on
21.12.2023 and it was unanimously decided by all the members that the polling stations where there are probable perilous situation could lead to sabotage the elections process or may influence the voters or in danger the life of the voters in general are being shifted and merged into the polling stations for the swift process of the elections and safety of the public. In pursuance of the above meeting, 21 polling stations in question were shifted and relocated accordingly, which is obviously the prerogative of the RO & DRO under the supervision of the ECP, which is duty bound to hold fair and free election as guaranteed under clause (3) of Article 218 of the Constitution as well as the Elections Act of 2017 and Rules framed
thereunder.
9. Be that as it may, the petitioners had failed to resort to the remedy as stipulated under
section 8 (b) & (c) of Act of 2017 before the ECP. Moreso, since factual controversies are
involved regarding distance in- between the polling stations, therefore, while exercising
jurisdiction under Article 199 of the Constitution it cannot be looked into as it requires thorough probe and evidence.
10. For the foregoing reasons, we believe that the petitioners have failed to make out a
case, persuading us to direct ECP to make alteration in the final Elections Polling Scheme, as it may cause hardships and delay for the voters to poll their votes, more particularly when the elections are to be held in couple of days.
11. Corollary, the Constitutional Petitions bearing Nos. 10 and 11 of 2024 being bereft of
merits are dismissed with no order as to cost.
MH/20/Bal. Petitions dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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