PESHAWAR: The Peshawar High Court has set aside the 2019 orders of the Election Commission of Pakistan for changes to around a dozen provincial assembly constituencies in Mardan, Swabi and Khyber districts and directed the commission to decide the matter afresh.

A bench consisting of Justice Lal Jan Khattak and Justice Shakeel Ahmad accepted three petitions filed by some MPAs and residents of the three districts against different ECP orders for changes to different provincial assembly constituencies.

Asks ECP to decide matter afresh

“In view of the admitted fact that the petitioners were not afforded any opportunity of hearing while passing the impugned order, we deem it appropriate to send this and the connected petitions to the Election Commission of Pakistan for their re-hearing as it is well settled that no one shall be condemned unheard which century old golden principle has not been followed in the case in hand. All petitions stand allowed and on setting aside the impugned order(s), the same are sent to the Election Commission of Pakistan in Islamabad for re-decision thereon after providing an opportunity of hearing to the petitioners,” the bench declared in its detailed verdict in the case.

Lawyers Babar Khan Yousafzai, Barrister Gohar Ali and Ijaz Khan Sabi appeared for the petitioners from Mardan, Swabi and Khyber districts, respectively.

One of the petitions was filed by Mardan MPAs Atif Khan, Mohammad Abdul Salam, Mohammad Zahir Shah, Iftikhar Ali and Tufail Anjum, who challenged changes to their respective constituencies. Swabi MPAs Shahram Tarakai and Mohammad Ali Tarakai also filed a petition.

The third petition was filed by Suhbat Khan, who contested the 2019 provincial assembly election in his Khyber district.

The bench ruled that the facts of the case need no reiteration as admittedly while passing the impugned order, the petitioners were not issued any notice for their appearance before the commission despite the fact that by then they were elected MPAs.

During hearing, Babar Yousafzai and Barrister Gohar contended that the impugned orders had affected their clients as the constituencies where from they were elected had been reshaped without hearing them.

They contended that after the holding of the general elections, the applications related to delimitation of constituencies became infructuous as the ECP couldn’t amend constituencies for the next general elections at that stage.

Mr Yousafzai said the preliminary report of delimitation of the national and provincial assembly constituencies was published on March 5, 2018, and the said delimitation was challenged before the ECP by different people belonging to Mardan district, as the said delimitation was carried out in violation of the Elections Act, 2017, and Elections Rules, 2017.

He said the amendments proposed by those applicants were dismissed by the ECP on April 7, 2018.

The lawyer said the amendment dismissal order was challenged before the high court through different petitions, which were consolidated by the court, while through an order on July 10, 2018, the cases were referred back to the ECP for fresh decision.

He argued that the present petitioners had never remained a party to the said proceedings.

The counsel added that on the high court’s direction after the 2018 general elections, the ECP, acting on the whimsof those applicants on Jan 25, 2019, ordered amendments to the said provincial assembly constituencies of Mardan district.

He argued that the present petitioners being elected members from those constituencies were not given any notice by the ECP before ordering the said amendments in the constituencies.

Barrister Gohar argued that while changes were made in the constituency of Shahram Tarakai, who is also a provincial minister, certain areas were removed from it including the one where the petitioner was registered as voter.

Ijaz Sabi contended that while making changes in provincial assembly constituencies of Khyber Agency the ECP had violated Section 20 of the Elections Act, which provided that all constituencies for general seats should be delimited having regard to the distribution of population in geographically compact areas, physical features, existing boundaries of administrative units, facilities of communication and public convenience and other cognate factors to ensure homogeneity in the creation of constituencies.

Published in Dawn, July 17th, 2021