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Official Citation: 2024 PHC 178
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Zahid Ullah Khan vs Election Commission of Pakistan, Through its JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PHC 178. In this matter between Zahid Ullah Khan and Election Commission of Pakistan, Through its 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 2024PHC178
Court Name: Peshawar High Court Judge(s): Syed Muhammad Attique Shah, Syed Arshad Ali Title:Zahid Ullah Khan vs Election Commission of Pakistan, Through its
JUDGMENT
Reported As: 2024 PHC 178, PLJ 2024 Peshawar 126 Result: Petition Allowed Judgment JUDGMENT SYED ARSHAD ALI J:- The question before us, in the present case as well as in the connected petition[1] is whether the Election Commission of Pakistan ("ECP") has the jurisdiction and power to direct for the recount of votes in terms of section 95 read with sections 4, 8(b), (c) & 9 of the Election Act, 2017 ("Act") after the result of returned candidate has already been notified in the official Gazette? Writ Petition No. 1302-P/2024 2. The background facts of the case are that petitioner, Sher Azam Khan respondent No.5 and other candidates were vehemently contesting the general election of 2024 for membership of Provincial Assembly of the Khyber Pakhtunkhwa (PK-99 Bannu-I). The poll was held on 8th February, 2024; consolidated statement of the result of count (Form-48 in terms of rule-85(1) of the Election Rules, 2017) was prepared on 10th February, 2024 and the final consolidated result (Form-49 in terms of Rule-88(1) of the Election Rules, 2017) was also prepared on the same date i.e. 10th February, 2024 and the Notification in terms of subsection (1) of section 98 of the Act was published in the official Gazette declaring the name of returned candidates of the Provincial Assembly of Khyber Pakhtunkhwa on 18th February, 2024. 3. According to the final consolidation result (Form-45), the petitioner obtained 27833 votes whereas respondent No.5 Sher Azam Khan obtained 27734 votes; thus, the margin of victory was 99 votes. 4. On 1 1 th February, 2024 respondent No.5 filed an application before the ECP for recounting of the votes wherein it is alleged that a similar application was submitted before the Returning Officer
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which was not entertained by him and he was not allowed to raise his grievances for recounting of votes in terms of section 95(5) of the Act before the Returning Officer. The ECP through the impugned order dated 26.02.2024 purportedly passed under Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") read with sections 4, 8(b) & (c) and 95 of the Act directed the Returning Officer to recount the vote of eight (08) Polling Stations mentioned in the application/paragraph-4 of the judgment. The said judgment is now impugned before us. Writ Petition No. 1341-P/2024 5. The background facts of the case are that petitioner and respondents No. 5 to 36 were vehemently contesting the general election of 2024 for membership of National Assembly from NA-37 Kurram. The poll was held on 8th February, 2024; consolidated statement of the result of count (Form-48 in terms of rule-85(1) of the Election Rules, 2017) was prepared on 10th February, 2024 and the final consolidated result (Form-49 in terms of Rule-88(1) of the Election Rules, 2017) was also prepared on the same date i.e. 10th February, 2024 and the Notification in terms of subsection (1) of section 98 of the Act was published in the official Gazette declaring the name of petitioner as returned candidate from NA-37 Kurram on 17.02.2024. 6. According to the final consolidation result (Form-45), the petitioner obtained 58650 votes whereas respondent No.5 Sajid Hussain Turi obtained 54384 votes; thus, the margin of victory was 4266 votes. 7. Respondent No. 5 filed an application under section 9 of the Act before the ECP for recounting of the votes wherein it is alleged that as per Form-48 total 3302 votes were rejected and thus, he submitted a similar application before the Returning Officer which was not entertained by him. The ECP through the impugned order dated 26.02.2024 directed the Returning Officer to recount the vote of forty-eight (48) Polling Stations. The said judgment is now impugned before us. 8. Arguments heard and record perused. 9. Before embarking upon the discussion of the legal issue at hand, we would like to refer to the relevant provisions of law relating to the consolidation of results, recounting of ballot papers and publication of the result in the official Gazette. The relevant provision under the Act is section 95 which for the ease of reference is reproduced as under:- 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 subsection (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--
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(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 1[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-- (a) seven days after the polling day in the case of elections to the National Assembly; (b) 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 proceedings, send to the Commission signed copies of the Consolidated Statement of the Results of the Count and Final Consolidated Result together with Results of the Count and the Ballot Paper Account, as received from the Presiding Officers, and shall retain copies of these documents for record. (9) After consolidation of results, the Returning Officer shall give to such contesting candidates and their election agents 3 [and accredited observers] as are present during the consolidation proceedings a copy of the Consolidated Statement of the Results of the Count and the Final Consolidated Result sent to the Commission against proper receipt. (10) On receipt of documents under subsection (8), the Commission shall, within fourteen days from the date of the poll, publish the documents on its website. 10. It is emphatically provided under sub-section (5) of section 95 of the Act that before the 'consolidation proceedings' the Returning Officer has jurisdiction to order recount on request or a challenge in writing by contesting candidates, if the margin of victory is less than 5% of the total votes polled in the constituency or 10,000 votes whichever is less or the Returning Officer consider such requests as not unreasonable. Similarly, the ECP enjoys independent power under subsection (6) of section 95 of the Act to direct the Returning Officer for the recount but the said power can be exercised before the conclusion of consolidation proceedings. The case of the petitioner qualifies the recounting of votes; however, the essential question is whether the said recounting can be ordered by the ECP, and after the consolidation of result and its publication on the official website? 11. The learned counsels representing the parties have mainly focused their arguments on the jurisdiction and power of ECP to pass any order under its inherent powers conferred in terms of Article 218 of the Constitution and section 4,8 & 9 of the Act in the interest of justice to ensure that the Election is fairly conducted. It was the contention of learned counsel for the petitioner that once the Election result was notified in the official Gazette, then, the ECP had become functus officio and the appropriate forum for any aggrieved person was to file an election petition before the Election Tribunal established under Chapter-IX of the Act. That any other forum even ECP had no jurisdiction to entertain any complaint except as provided under section 9 of the Act; whereas, it was the contention of the learned counsel for the ECP and the respondent that the ECP has not only inherent jurisdiction under Article 218 of the Constitution but under section 9 of the Act for the period of two months, the ECP is a Tribunal for certain purposes and the instant cases squarely falls within the jurisdiction of the Tribunal. The main defence of the respondents was the jurisdiction of the Tribunal in terms of Article 218 (3) of the Constitution which envisages that it shall be duty of the Election Commission to organize and conduct the election and to make such arrangements as are
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necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against. 12. Heard. The law is by now settled that ECP is not a Court or a Tribunal[2]. However, Article 218(3) of the Constitution entrusts the Election Commission with the duty "to organize and conduct the election", and empowers it, in general terms, "to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against". The power so conferred is restricted to the fulfilment of the duty specified, that is, "to organize and conduct the election". Therefore, in order to understand the amplitude of this power, we need to find out the meaning of the term "election" as used in Article 218(3) and to ascertain when the duty of the Election Commission to "conduct the election", as entrusted to it under this Article, starts and when it stands completed. Secondly, it also requires determination whether the duty of the Election Commission to conduct the election and the power to make the necessary arrangements, therefore, can be regulated by a law enacted by the Parliament; if so, what would be the status of the general power of the Election Commission under Article 218(3) of the Constitution vis--vis such law. 13. The meaning of the term "election" and of the expression "conduct the election" as used in Article 218 and 225 of the Constitution has already been expounded by a four-member Bench of the Apex Court in Javaid Hashmi 's case[3]. The words "election" and "conduct the election", as expounded in that case as well as in the other cases approvingly cited therein, have been used in Article 218 and 225 of the Constitution in a wide sense to connote the entire election process consisting of several steps starting with the issuance of the election programme and culminating with the declaration of the returned candidate, which include filing of the nomination papers, scrutiny of the nomination papers, withdrawal of the candidates, holding the poll, counting of the votes, consolidation of the result and declaration of the returned candidates, etc. In this wide sense, the process of conducting the election starts with the issuance of the election programme and stands completed on the publication of the names of the returned candidates in the official gazette[4]. 14. The general and inherent power of ECP as envisaged under Article 218 (3) of the Constitution admittedly cannot be abridged by any legislative instrument/Act of Parliament. Similarly, section 8 of the Act has been enacted in consonance with the mandate of Article 218 of the Constitution which empowers the ECP to issue such instruction, 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 the Act and Rules. In the case of Zulfiqar All Bhatti (supra), the Apex Court in para-14 & 15 of the judgment has very elaborately dealt with the manner in which the said powers are to be exercised. The said paras are as under:- "14. So far as the general power of the Election Commission under Article 218(3) is concerned, the expression "and in accordance with law" used in that very Article clearly suggests that it is to be exercised to ensure that the election is conducted in accordance with the law enacted by the Parliament, and not in suppression thereof The Election Commission, thus, cannot exercise its general power in a manner that would make the conduct of election otherwise than in accordance with the law enacted by the Parliament, that is, in violation or breach of such law. Therefore, a law enacted by the Parliament that regulates the conduct of elections and consequentially the constitutional duty and power of the Election Commission to conduct the election, is not hit by the provisions of the latter part of Article 222 of the Constitution; as the requirement for the Election Commission to conduct the election "in accordance with law" while performing its constitutional duty has been prescribed by the Constitution itself not by a law enacted by the Parliament.
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15. However, where the law enacted by the Parliament does not cover an unforeseen matter or issue that may arise during the election process, the Election Commission is to exercise its general power under Article 218(3) of the Constitution, in the same manner as all other discretionary powers are exercised, that is, fairly, reasonably and judiciously in accordance with the principles of equity, justice and good conscience. While exercising its general power in such a situation, the Election Commission must remember the fundamental principle that the general, plenary and inherent powers are exercised to supplement, not supplant or supersede, the law. Such powers cannot be exercised to defeat the express provisions of law but are invoked only when there is no specific provision of law on the matter or issue that needs to be dealt with". 15. As stated above that it was held in the case of Muhammad Hanif Abbasi (supra) that the ECP is neither a Court nor a Tribunal, therefore, it has no jurisdiction to decide any intricate question. Similarly, when the powers of ECP are specifically provided under the Act, it must be exercised with the expressed authority of the Act, in the manner and mode as provided under the Act and more particularly as in the instant case in the timeline provided under the Act. Sections 95 & 96 of the Act, as stated above, postulates in a very expressed words that the Returning Officer can undertake the process of recounting as provided under subsection (5) of section 95 of the Act as well as the ECP can issue such direction for recount under subsection (6) of section 95 of the Act before the consolidation of the result, thus, the statutory authority of the ECP is that such mandate can be exercised when any candidate approaches the Returning Officer or ECP in time which obviously means before the consolidation of result. 16. Once the Act has provided a mechanism for resolution of certain disputes in a particular timeline, then, it should be done in the same manner and resort to any other manner would, thus, be against the mandate of the law as it is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly[5]. Similarly, the Apex Court in the case of Muhammad Akram[6] has very elaborately held that when law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner. The Apex Court in the case of Messrs Al-Fait Industries (Pvt) Limited[7] had further expounded the proposition by holding that it is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred. 17. Indeed, we cannot read mandate of Article 218 of the Constitution in isolation ignoring the other enabling provisions of the Constitution. It is provided under Article 225 of the Constitution that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act or Majlis-e- Shoora (Parliament). Similarly, it is provided under clause (d) of Article 222 of the Constitution that the Parliament may by law provide the conduct of elections and election petitions the decision of doubts and disputes arising in connection with elections. Chapter-IX of the Act provides a complete mechanism for Election Petition, Appointment of Election Tribunals, presentation of petition, contents of petition and the procedure of adjudication of the Election Tribunal. The scheme of the Act and the explanation of the term "election" as provided in Javaid Hashmi's case (supra) that once the election is completed i.e. the names of the returned candidates have been notified in the official Gazette, then, the ECP become functus officio meaning thereby that ECP after the said Notification can neither entertain any application for recounting of votes nor can further proceeds with a pending application for recounting of votes except for a limited purpose as provided under section 9 of the Act. In the case of Jameel Qadir[8], the Apex Court in para-14 has observed that:-
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"The term functus officio literally denotes 'of no further official authority or legal effect' or 'having performed his office', and is used in the context of an officer who is no longer in office or has fulfilled its purpose. This doctrine has an extensive and pervasive application to both the judicial and quasi-judicial authorities and if such doctrine is considered insignificant, it will lead to disorder, therefore, this should be given credence to bring in decisiveness and certitude to legal proceedings. In the instant case, after notifying the returned candidates and appointment of Election Tribunals, the ECP being sanguine and mindful to the provisions contained under section 37 of the 2010 Act, directed the parties to approach the Election Tribunal where the election disputes could be resolved by the Election Tribunal after recording evidence as the ECP had otherwise become functus officio for entertaining and deciding any election dispute. If the learned High Court was of the view that the issue challenged before it was not an election dispute, then definite findings should have been recorded bearing in mind the bar contained under section 37 of the 2010 Act and enabling provisions, but no findings were recorded with regard to jurisdiction". 18. At this juncture, we may also refer to section 4 of Act which empowers the Commission to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it. The verbiage of section 4 of the Act does not suggest that these powers of the ECP are independent and self- contained but these powers can be exercised only in a matter which is sub-judice before it and it has the jurisdiction to decide the said issue. These powers cannot be independently exercised by ECP except in the cases where it can take cognizance during the election process. Therefore, for what has been stated above, we are clear in our mind that in the present case as well as in the connected case when the final results were consolidated and the names of the returned candidates were notified in the official Gazette, then, the ECP has no jurisdiction to order for recounting of the votes/ballots and the jurisdiction purportedly exercised by the ECP under Article 218 of the Constitution read sections 4 & 8 of the Act are, thus, without jurisdiction. The appropriate remedies available to the respondent No.5 to challenge the dispute before the Tribunal established in terms of Chapter-IX of the Act. 19. Moving on to the last limb of arguments of the learned counsel for the respondent that under section 9 of the Act since the ECP is a Tribunal for a limited purpose, therefore, the jurisdiction of the ECP can protected under section 9 of the Act. Section 9 of the Act is somehow except with certain expansion of powers of ECP is a corresponding provision of the repealed Representation of People Act, 1976 commonly referred to as `ROPA'. Both the provisions are reproduced as under:- 2017 Act 1976 Act 9. Power of the Commission to Declare a poll void.---(1) Notwithstanding anything contained in this Act, if from facts apparent on the face ofthe 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 on agreement re str oining w omen from casting their votes, it shall make a declaration accordingly ond call upon the voters in the concerned polling station or stations or in the whole constituency as the case moy be, to recast their votes in the manner provided for bye-elections.103AA. Power of Commission to Declare a poll void.---(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face ofthe record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly and, by notification in the fficial Gazette, call upon that constituency to elect a member in the manner provided for in section 108. (2)
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Explanation.-If the turnout of women voters is less than ten percent of the totol 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. (3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may exercise the powers conferued on it by subsection (1) befure 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 subsection (l), 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, re its own procedure.Notwithstanding the publication of the nome of o returned candidate under subsection (4) of section 42, the Commission moy exercise the powers conferred on it by subsection (1) before the expiration of sixty days after such publication; and, where the Commission does not finally…
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