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Civil Miscellaneous Petition No. 238‑R of 1985 in Civil Appeal No. 184 of 1985, decided on 18th September, 1985.
(Against the Judgment of the Election Tribunal dated 31‑8‑1985 in Election Petition No. 34 of 1985 (Senate).
‑‑‑O.XXXIII, r.6‑‑Senate (Election) Act (LI of 1975), S.49(3)‑‑Chief Election Commissioner had already notified respondent as successful candidate‑‑Electorate was not to be deprived of its right to be represented in Senate‑‑Supreme Court not to deprive electorate of its right to be represented in Senate‑‑Interim order to grant prayers declined and petition dismissed except to extent for preserving and s sustaining right of appellant to maintain his appeals in spite of two adjudications against him and, held, that to that extent alone impugned order would not take effect.
Raja Muhammad Anwar, Senior Advocate Supreme Court with Muhammad Aslam Ch., Advocate‑on‑Record for Appellant.
Nemo for Respondents.
Date of hearing: 18th September, 1985.
‑In an appeal filed under section 48 (3) of the Senate (Elections) Act, 1975 (hereinafter referred to as the Act), an application has been filed under Order XXXIII. rule 6 of the Supreme Court Rules seeking (i) suspension of the impugned order of the Election Tribunal dated 31st of August, 1985 read with the Order dated 1‑9‑1985, (ii) an order restraining the Chief Election Commissioner from notifying the respondent No.l as the returned candidate and (iii) an order restraining the respondent No.l from taking oath as a Member of the Senate.
On an Election Petition filed by Khalid Amir Khan who contested like the appellant, for one of the 5 special seats of the Senate, the Election Tribunal invalidated 17 votes and as a result of recount by the impugned orders declared respondent No.l as duly elected. The basic disqualification of the appellant for the special seat is already the subject‑matter of an earlier Civil Appeal No. 94 of 1985 and he has been by an interim order of this Court to be treated as elected Member of the Senate who has not yet been duly notified as such Member nor administered oath as such (vide 1985 S C M R 1553). We are informed by the learned counsel that the Chief Election Commission has already notified the respondent No.l as the successful candidate, making the second prayer in terms infructuous.
The learned counsel for the appellant has contested on merits the very competence of the Election Petition and the jurisdiction of the Election Tribunal to order a recount or to invalidate the votes on defects disclosed. He has in support of the petition contended that a candidate not otherwise entitled to be a Member of the Senate should not be allowed to take over and function as such on the basis of such impugned orders of the Tribunal.
After hearing the learned counsel for the petitioner at some length, we consider that this is not the stage to comment on the merits of the appeal. All the same we would reiterate our anxiety not to, deprive the electorate of its right to be represented in the Senate. Hence we would not like to intervene by an interim order to grant the prayers except to the extent of preserving and sustaining the right of the appellant to maintain his appeals in spite of the two adjudications against him and to this extent alone the impugned orders shall nor take effect. In other respects, the application is dismissed.
M . B . A . Order accordingly.
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