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Official Citation: 2024 LHC 1720
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Abdul Rehman Khan Kanju vs Rana Muhammad Faraz Noon and two JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2024 LHC 1720. In this matter between Abdul Rehman Khan Kanju and Rana Muhammad Faraz Noon and two JUDGMENT, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC1720
Court Name: Lahore High Court Judge(s): Muzamil Akhtar Shabir, Asim Hafeez Title:Abdul Rehman Khan Kanju vs Rana Muhammad Faraz Noon and two
JUDGMENT
Reported As: 2024 LHC 1720 Result: Appeal Dismissed Judgment JUDGMENT ASIM HAFEEZ, J. This Intra Court Appeal is directed against the order of learned Single Judge-in- Chambers, dated 05.03.2024 (identified as an "impugned order"), whereby constitutional petition bearing W.P No.1333 of 2024/BWP, preferred by respondent No.1, against the order of Election Commission of Pakistan dated 22.02.2024 (for the purposes of this appeal, deemed as an "original order"), was accepted and original order, including notice dated 25.02.2024 for attending recount of votes, were declared lacking in jurisdiction and of no legal effect. 2. Matter-in-issue relates to the election for National Assembly constituency, NA-154, Lodhran-I, held on 08.02.2024, whereby respondent No.3 statedly secured 134,937 votes against 128,438 votes, secured by the appellant. Returning Officer delivered Final Consolidated result - [Form-49] - to the Election Commission on 09.02.2024. Appellant was the runner-up candidate. It is the case of the appellant that he had submitted application on 09.02.2024, for seeking recount of votes of all the polling stations of the constituency, which was neither considered nor decided, and appellant had to approach the Election Commission. Record depicts that Returning Officer had indicated factum of application for recount of votes to the Regional Election Commissioner, Multan, through correspondence of 10.02.2024, contents whereof, for quick understanding, are reproduced hereunder, No. 41/RO/ADC(F&P)/LD OFFICE OF THE RETURNING OFFICER NA-154 (LODHRAN-1)/ ADC(F&P) LODHRAN Dated: 10.02.2024
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To, The Regional Election Commissioner (Multan), Election Commission of Pakistan. Subject: APPLICATION UNDER SECTION 95 READ WITH ALL OTHER ENABLING PROVISIONS OF ELECTIONS ACT, 2017 AND ELECTION RULES, 2017 THEREUNDER. Reference: The application (enclosed) received dated 09.02.2024 on the subject cited above regarding recounting of votes of all polling stations in NA 154, Lodhran-I by the contesting candidate Mr. Abdul Rehman Khan Kanju. It is apprised that the applicant has sought recounting of votes of his constituency. However, at the time of receipt of his application, the electoral record of the constituency NA-154 had already been handed over to the office of Regional Election Commissioner, Multan. Therefore, the above mentioned request can only be entertained if the undersigned is given access to the electoral record. It is therefore prayed that the necessary permission may please be granted to access the said record as per provisions of the relevant law(s). Announced: Dated: 10.02.2024 Returning Officer NA-154, Lodhran-I Copy to: Mr. Abdul Rehman Khan Kanju, the applicant and candidate for NA-154. Record reflects that on 11.02.2024, Regional Election Commissioner, Multan Division, responded to the Returning Officer; contents of the correspondence read as, No.F.1(19)/2024-Elec/REC OFFICE OF THE REGIONAL ELECTION COMMISSIONER, MULTAN DIVISION Multan the 11thFebruary 2024. To. The Returning Officer NA-154 Lodhran-I/ ADCR(F&P) Lodhran, Subject: APPLICATION UNDER SECTION 95 READ WITH ALL OTHER ENABLING PROVISIONS OF ELECTIONS ACT, 2017 AND ELECTION RULES, 2017 THEREUNDER. Reference your letter No.41/RO/ ADC(F&P)/LD dated 10-02-2024 regarding the subject cited above. As per contents of your letter the recounting application of the candidate has been rejected and consolidation of result has been completed by you. Resultantly the polling record has been consigned in the Strong Room of Election Commission of Pakistan established in office of the Regional Election Commissioner, Multan Division, Multan on 10-02-2024 at 3:00 AM. Once the final consolidation of result has been made then the recounting powers of Returning Officer under Section 95 cannot be exercised, and seeking asses to polling record seems irrelevant here. So the asses to polling record consigned in the Strong Room can only be provided in presence of any recounting order from any competent forum. (Ch. Nadeem Qasim) Regional Election Commissioner, Multan Division, Multan Copy forwarded for information to:- 1. The Provincial Election Commissioner, Punjab, Lahore. 2. The District Returning Officer, Lodhran. 3. The District Election Commissioner, Lodhran. And thereafter, the Returning Officer submitted report vide communication dated reproduced hereunder,
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No. 46/RO/ADC(F&P)/LD OFFICE OF THE RETURNING OFFICER NA-154 (LODHRAN-1) Dated: 16.02.2024 To, 1. Mr. Nisar Ahmed Durrani, Member, Election Commission of Pakistan. 2. Mr. Babar Hassan Bharwana, Member, Election Commission of Pakistan. Case No. 7(160)/2024 LAW-111 (GE) In Ref: PETITION/ APPLICATION UNDER SECTION 95(5) AND ALL OTHERS ENABLING PROVISIONS OF ELECTION. I have been directed vide order dated 14.02.2023 to file a report as a Returning Officer of NA-154, Lodhran-1. As per the Form-49, the Petitioner, Abdul Rehman Khan Kanju secured 128,438 votes, and the returned candidate, Rana Muhammad Faraz Noon secured 134,937 votes. The difference in the vote count is less than 5%. It is stated that although the application for recount was received at my office before consolidation, I was not able to pass an order on the same immediately, because of law and order situation created by the returned candidate Rana Muhammad Faraz Noon. Hence, I was unable to pass an order on the recount application which should have been done as per Section 95 of the Election Act. However, subsequently, I referred the same to the Regional Election Commissioner, Multan vide my letter dated 10.02.2024. I am able and willing to recount the votes if an appropriate order is passed by the Honorable Commission. Returning Officer NA-154, Lodhran-I CC: 1. The District Returning Officer, Lodhran. 2. The District Election Commissioner, Lodhran [Emphasis supplied] Notably, appellant, on 11.02.2024, had submitted application for recount of the votes of entire constituency to the Election Commission, primarily invoking section 95(5) and all other enabling provisions of the Elections Act, 2017 and Election Rules, 2017. Notwithstanding exchange of correspondences between Returning Officer and office of Regional Election Commissioner, Election Commission, on 16th February 2024, issued Notification No.F.2(5)/2024-Cord (1), declaring and directing publication of name of respondent No.1 as returned candidate to the National Assembly of Pakistan. Request for recount of votes was entertained, after Notification of 16th February 2024, by Election Commission, purportedly in exercise of jurisdiction under Article 218(3) of the Constitution of Pakistan 1973 ('Constitution'), and other enabling provisions, vide original order [passed on 22.02.2024]. Reasons extended were that it was a fit case for the recount of votes, whereupon Returning Officer was directed to do the needful within one week, upon notice to the parties. In essence, original order is central to the controversy, paragraphs 4 and 5 thereof read as, "4. The Commission is constituted under Article 218(2) of the Constitution of Islamic Republic of Pakistan and is charged with the duty to organize and conduct elections and to make such arrangements that elections are conducted honestly, justly, fairly and in accordance with law and corrupt practices are guarded against. The Commission after due consideration is of the opinion that it is a fit case of recounting. Therefore, we in exercise of powers under Article 218(3) of the Constitution of Pakistan 1973 and all other powers enabling in this behalf for free and just decision in the matter order recount and direct the Returning Officer concerned that he shall carry out the recounting of votes of this constituency in the presence of all the parties strictly in
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accordance with law. Returning Officer is further directed to complete the process of recounting within one week and thereafter result be communicated to this Commission. 5. Relist for 04.03.2024." [Emphasis Supplied] 3. It is apprised that pursuant to original order notices dated 25.02.2024 were issued by the Returning Officer to the parties, indicating factum of recounting exercise on 26.02.2024. Recounting was carried out. Respondent No.1 submitted review petition against original order, which, as per statement(s) made at the bar, was withdrawn and instead W.P. No.1333 of 2024/BWP was preferred, which came up for hearing on 26.02.2024, when interim injunction was granted, whereby operation of original order and notice(s) issued were suspended. Record depicts that Returning Officer concluded exercise of recount of votes and submitted report to the Election Commission, in terms whereof appellant secured highest number of votes. Constitutional petition was heard and accepted vide impugned order. Instant appeal is preferred by the appellant, wherein, impugned order was suspended, through interim injunctive order. Election Commission issued Notification dated 22.03.2024, declaring appellant as a returned candidate, and withdrew earlier Notification dated 16.02.2024, declaring it ab-initio - effect of subsequently issued Notification was subjected to the outcome of instant Appeal. Respondents are on notice. Appeal is heard at length. Objection qua maintainability of appeal: 4. At the outset, learned counsels for respondent No.1 pleaded that appeal is not maintainable in terms of proviso to subsection (2) of section 3 of Law Reforms Ordinance, 1972 (referred as "Ordinance") because remedy of review was available before Election Commission, under clause (b) of Section 8 of the Elections Act, 2017 ("Elections Act"). It is alternatively argued that if exercise of jurisdiction, by Election Commission while passing original order, was purportedly claimed to have had exercised under subsection (1) of section 9 of the Elections Act, still remedy of appeal is available before the Hon'ble Supreme Court in terms of subsection (5) of section 9, ibid. Following decisions are relied upon, including an unreported decision of Hon'ble Supreme Court of Pakistan passed on 13.03.2024, in C.P.L.A No.1800-L of 2023, titled "National Bank of Pakistan through its President, Head Office, Karachi, etc. v. Muhammad Adeel", and other cases are reported as "Sonia Raza V. Election Commission of Pakistan and others (2018 CLC 1966), Ejaz Ahmed Sandhu and another V. Election Commission of Pakistan through Chief Election, Commissioner, Islamabad and others (2018 SCMR 1367), Muhammad Mamoon Tarar V. Election Commission of Pakistan and others (2016 CLC 1708), Syed Arif Raza Rizvi V. Messrs Pakistan International Airlines through Chairman/M.D., Karachi (PLD 2001 Supreme Court 182), Bartha Ram V Lala Mehar Lal Bheel and another (1995 SCMR 684), Muhammad Abdullah V. Deputy Settlement Commissioner, Centre-I, Lahore (PLD 1985 Supreme Court 107) and Mst. Karim Bibi and others V. Hussain Bakhsh and another (PLD 1984 Supreme Court 344). Submissions in support of maintainability: 5. While controverting objection to maintainability, learned counsel for appellant submits that no final / conclusive order was passed by the Returning Officer, who actually failed to decide application for recount of votes. And no remedy of review was available under clause (b) of section 8 of Elections Act, in absence of any order by Returning officer. Adds that order of 22.02.2024 was an interim order, simply directing recount of votes, and Election Commission retained seisin over the lis, and proceedings were kept pending for 04.03.2024. Learned counsel emphasized that assumption and exercise of jurisdiction by the Election Commission stood justified and validated under the scope of subsection (1) of section 9 of Elections Act, and since no final / conclusive order, by way of declaration envisaged, was made therefore, remedy of appeal under subsection (5) of section 9 of Elections Act is also not available - being pre-mature in absence of any conclusive declaration by the Election Commission. While explaining the import and significance of subsection
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(1) of section 9 of Elections Act, learned counsel states that gross illegalities were found in the process of consolidation of votes, whereby Returning Officer, notwithstanding that the conditions prescribed under sub-section (5) of section 95 of Elections Act were available, had failed to undertake an exercise of recount of votes, which apparent inaction constitutes patent violation of the Elections Act and Election Rules, providing justification for exercise of jurisdiction by the Election Commission. 6. On Merits; Learned counsel for the appellant emphasized that non-performance of statutory duty by Returning officer constitutes infraction of gross scale, which was rightly rectified by Election Commission. Explains that application for recount was submitted within the timelines provided in section 95(5) of Elections Act, which fact was acknowledged by the Returning officer while exchanging correspondence(s) with Regional Election Commissioner - refers to report submitted vide letter of 16.02.2024 - text of the correspondences referred were reproduced in paragraph 2 of this decision. Further submits that under section 9(1) of Elections Act, Commission is entitled to undertake summary inquiry, who adds that illegalities committed were apparent on the face of the record and upon satisfying itself, Commission assumed and exercised jurisdiction under subsection (1) of section 9 of Elections Act. It is emphasized that recount of votes can be ordered by the Election Commission even under section 9(1), ibid, and outcome of exercise of jurisdiction cannot be restricted to ordering polls void or directing re poll(s). Elaborates that, in wake of the failure of the Returning Officer to exercise jurisdiction vested under section 95(5) of the Elections Act, appellant cannot be left remediless, and Election Commission, in the circumstances, had justifiably exercised jurisdiction to ensure fairness and justness in the conduct of elections. Further submits that remedy of constitutional petition was not available to respondent No.1, who could prefer appeal before Hon'ble Supreme Court once conclusive declaration was made by the Election Commission under Section 9(1) of Elections Act. Submits that Court(s) are not competent to call into question legality of any action taken by the Election Commission in good faith - refers to section 236 of the Elections Act. Arguments on behalf of Election Commission: 7. Learned counsel for the Election Commission defended the original order on the strength of assumption and exercise of jurisdiction in terms of section 9 of the Elections Act, who elaborated that subsection (4) of section 9, ibid, confers concurrent jurisdiction unto Election Commission, as available to the Election Tribunal(s), which inter alia included power to direct recount of votes. Objects to availing of remedy of judicial review jurisdiction by respondent No.1 on the premise that only appeal could be filed before Hon'ble Supreme Court of Pakistan in terms of subsection (5) of section 9 of Elections Act against the original order. Learned counsel is asked to read original order of 22.02.2024 and explain proximity between original order and incidence of jurisdiction extended under section 9 of the Elections Act and how same was exercisable in wake of specific and time bound remedy of seeking recount under sub-section (6) of section 95 of Elections Act. Learned counsel for the Election Commission failed to persuade us that original order manifests exercise of jurisdiction under section 9 of the Elections Act. 8. On merits: Learned counsel for respondent No.1 emphasized that Election Commission had no jurisdiction to order recount of votes once declaration of returned candidate was made in accordance with section 98 of the Elections Act. Adds that no jurisdiction is vested in the Election Commission to direct recount of votes under sub-section (6) of section 95 of the Elections Act after conclusion of consolidation proceedings and dispatch of electoral record by Returning Officer to the Regional office of the Election Commissioner. Adds that mal-intent of the Commission is evident from the conduct demonstrated, in particular when original order was passed without any notice to respondent No.1 - reference is made to the text of original order to show absence of any reference to the presence of respondent No.1 or any of its election agent / representative. Further
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submits that upon issuance of the Notification of returned candidate on 16th February 2024 there was no justification for ordering recount on 22.02.2024, which conduct is unlawful, contrary to the mandate of law and otherwise denudes Commission's claim of acting justly and fairly. Submits that no remedy was available to respondent No.1 under the Elections Act, against the order of 22.02.2024 and in these circumstances review petition against said order was withdrawn and constitutional petition was filed, wherein precise question was seeking of declaration against exercise of jurisdiction by the Election Commission, not otherwise available or extended under the Elections Act upon lapse of time and happening of an event- declaration of returned candidate. 9. Exercising the right of rebuttal, learned counsel for the appellant contends that respondent No.1 was duly represented at the time of recount of votes on 26.02.2024, before the Returning Officer. Adds that respondent No.1 was aware of the proceedings and order passed by the Election Commission, who opted to file review petition against the order of 22.02.2024 and withdrew it, upon invoking constitutional jurisdiction. Refers to section 235 of the Elections Act to emphasize that absence of the candidate does not invalidate the act or thing required or authorized by the Act to be done in presence of the candidate. Relied upon the case of Sonia Raza V. Election Commission of Pakistan and others (2018 CLC 1966) in the context of failure of Returning Officer to act accordingly. 10. Both learned counsels respectively placed reliance on the ratio laid down in the case of Zulfiqar Ali Bhatti V. Election Commission of Pakistan and others (Civil Appeal No.142 of 2019 and Civil Petition No.1369 of 2019) by reading various paragraphs, each seeking support from the judgment in its own manner and context. 11. Heard. Record Perused. 12. It is appropriate to examine the scope of relevant provisions of Elections Act while considering the question of maintainability of instant appeal. To facilitate adjudication, sections 8, 9 and 95 of the Elections Act are relevant and reproduced hereunder, which read as, "Section.8. Power of Commission to ensure fair election.-- Save as otherwise provided, the Commission may -- a) stop the polls at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election; b) review an order passed by an officer under this Act or the Rules, including rejection of a ballot paper; and c) issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules. Section 9. Power of the Commission to declare a poll void. -- (1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such enquiry as it may deem necessary, the Commission is satisfied that by reason of grave illegalities or such violations of the provisions of this Act or the Rules as have materially affected the result of the poll at one or more polling stations or in the whole constituency including implementation of an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections. Explanation. -- If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void.
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2) Notwithstanding the powers conferred on it by sub-section (1), the Commission may order filing of complaint under this Act before a court of competent jurisdiction against persons who entered into the agreement referred to in sub-section (1). (3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to the decision of an Election Tribunal on an election petition, if any. (4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure. (5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court. Section 95. Consolidation of results.-- (1) Immediately after announcement of provisional results, the Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and, in the presence of such of the contesting candidates and election agents as may be present, consolidate in the prescribed manner the Results of the Count furnished by the Presiding Officers, including therein the postal ballots received by him before the time fixed for the consolidation of results. Provided that presence of not more than one agent of each candidate shall be allowed. (2) Before consolidating the Results of the Count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast. (3) The Returning Officer shall also count the ballot papers received by him by post in such manner as may be prescribed and include the votes cast in favour of each contesting candidate in the Consolidated Statement except those which he may reject on any of the grounds mentioned in section 90. (4) The ballot papers rejected by the Returning Officer under sub-section (3) shall be mentioned separately in the consolidated statement. (5) Before commencement of the proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made to that effect by a contesting candidate or his election agent and - (a) the margin of victory between returned and runner up candidates is less than five percent of the total votes polled in the constituency or eight thousand votes in case of National Assembly constituency and four thousand votes in case of a Provincial Assembly constituency, as the case may be, whichever is less; or (b) the number of votes excluded from the count by the Presiding Officer are equal to or more than the margin of victory: Provided that the Returning Officer shall recount only once. (6) The Commission may, before conclusion of the consolidation proceedings, and after notice to the contesting candidates] for reasons to be recorded, direct the Returning Officer to recount the ballot papers of one or more polling stations. (7) If there is a difference between the Results of the Count received from the Presiding Officers and the results of the recount, the Returning Officer shall record the difference and details thereof: Provided that where the Returning Officer has recounted the votes under sub-section (5) or sub- section (6), the consolidation proceedings shall be completed within -
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(a) seven days after the polling day in the case of elections to the National Assembly; and (b) five days after the polling day in the case of elections to a Provincial Assembly. (8) The Returning Officer shall, within twenty four hours after the consolidation…
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