IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

C. P. No.D-1300 of 2013

C. P. No.D-1301 of 2013

C. P. No.D-1302 of 2013

DATE OF ORDER WITH SIGNATURE OF JUDGE

HEARING

Petitioner in all : Abdul Fatah Bhutto, through Mr.Inayatullah

three Petitions G. Morio, Advocate.

Respondents : Election Commission of Pakistan & others.

Date of hearing : 12.12.2013.

O R D E R.

Abdul Maalik Gaddi, J.- These three Constitutional Petitions have been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, by petitioner Abdul Fatah Bhutto against the consolidated order dated 16.4.2013 passed by the Election Tribunal Sindh, at Sukkur, in Election Appeals NosL-27, 28 and 32 013.

2. Through present petitions, the petitioner has prayed the following relief :-

(a) To set aside the impugned order dated 16.4.2013 passed by the Election Tribunal and to restore the nomination papers of the petitioner, if the re-election in NA-204 Larkana-I is not possible, the impugned order to the extent of disqualification of the petitioner be set aside.

(b) To award cost of this petition to the petitioner by directing the respondent No.4 to pay the same to the petitioner.

(c) Any other relief which this honourable court deems fit and proper under the circumstances may also be granted to the petitioner.

3. Briefly stated the facts of the case are that the Returning Officer of N.A-204 and P.S-37 accepted the nomination papers of the petitioner by overruling the objections raised by the objectors regarding the eligibility of the petitioner for contesting the General Elections 2013, on the ground that the petitioner had encroached the ‘Musafir-khana’ and cattle-pond being the government land and did not pay the SEPCO Electricity bill and is also involved in corrupt practices. Being dissatisfied with the decision of the Returning Officer, the respondent No.4 of the instant petition filed appeals before the Election Tribunal, which after finding the averments of the respondent No.4 to be correct allowed the said appeals. It is against that consolidated order mentioned supra that the present petitions have been filed.

4. It was mainly contended on behalf of the petitioner that legal and factual position has not been appreciated by the Election Tribunal. It was further contended that in fact there is no outstanding bill of electricity against the petitioner and so also he did not encroach any government land. However, the learned Counsel for the petitioner on the point of maintainability argued that these petitions have been filed as no other legal remedy was available to him. In support of his above contention the learned Counsel has placed reliance upon a decision given in the case of Ghulam Akbar v. Returning Officer, 2006 MLD 259.

5. Heard the learned Counsel for the petitioner and perused the material available on record.

6. It is pertinent to mention here that for adjudicating upon petitions arising out of the decision of the Election Tribunal Sindh, a Special Bench comprising of three Judges of this Court was constituted vide order dated 16.4.2013 by the Honourable Chief Justice and all such petitions were placed before the above-mentioned Full Bench of this Court. Admittedly, the petitioner had not filed petitions after pronouncement of the order by the learned Election Tribunal Sindh, at Sukkur and opted to remain silent for a considerable period of time. This clearly suggests that the petitioner has not opted to present his case before the forum which was specifically constituted for that purpose.

7. We have gone through the case law reported as Tehsil Nazim TMA, Okara v. Abbas Ali, 2010 SCMR 1437. In this authority it has been held by the Hon’ble Supreme Court of Pakistan that when a thing is to be done in a particular manner, it must be done in that way and not otherwise. In this regard we are also supported with case law reported as Human Rights Cases Nos.4668/06, 1111/07 and 152-G of 2010: In the matter of (Iftikhar Muhammad Chaudhry, C J) PLD 2010 SC 759. In this authority same principle was reiterated.

8. As observed above, a legal remedy was available to the petitioner, but he has not adopted the prescribed course/remedy and not approached the above-said forum. Resultantly, the cases of the petitioner on one hand are hit by latches and on the other hand he has not adopted the specified procedure and approached the proper forum and in the given time.

8. Through these petitions the petitioner has prayed to set aside the order passed by the Election Tribunal Sindh at Sukkur and so also agitated the controversies on factual points regarding rejection of his nomination papers. We specifically asked a question from the learned Counsel whether these factual controversies were raised before Election Tribunal, to which no plausible reply is furnished. Even otherwise, all the points raised and agitated before us were admittedly based on factual controversies, which cannot be decided in writ jurisdiction. In this regard we are supported with the decision reported as Fida Hussain v. Mst. Saiqa, 2011 SCMR 1990. In this authority it has been observed as under :-

“Art. 199---Constitutional petition---Scope---High Court was not to resolve disputed questions of fact in exercise of constitutional jurisdiction under Art. 199 of the Constitution.”

In another reported decision reported as Secretary to Government of the Punjab v. Ghulam Nabi, PLD 2001 SC 415, following observations were recorded by the Honourable Supreme Court of Pakistan :-

“Art. 199---Constitutional jurisdiction of High Court ---Scope---Disputed question of fact---Forums available in the hierarchy under the relevant law had decided all the controversial questions on the basis of record and in accordance with law---Interference by High Court---Scope---High Court could not go into disputed questions of fact in exercise of its Constitutional jurisdiction.”

9. Since the relief as prayed by the petitioner clearly falls beyond the jurisdiction of this Court, therefore, from the aforementioned discussion we have come to the irresistible conclusion that these petitions are not maintainable, which are summarily dismissed alongwith the listed applications. The facts and circumstances of reported case cited by the learned Counsel for the petitioner are found to be distinguishable to the facts of the instant case.

10. The above petitions were dismissed by our short order passed in Court on 12.12.2013 and above are the reasons in support thereof.

Sd/- JUDGE