' ABDUL HAMEED DOGAR, C J.---These two petitions for leave to appeal filed by the petitioner Maulana Atta-ur-Rehman are directed against judgment dated 13-3-2008 passed by learned Division Bench of Peshawar High Court, Peshawar in Writ Petitions Nos.236 & 254 of 2008.
2. Briefly stated, facts giving rise to these petitions are that petitioner and respondents Nos.1 to 11 contested election to National Assembly seat (NA-25 Tank-cum-Dera Ismail Khan) held on 18-2- 2008. On the conclusion of polling, the Presiding Officers, after counting the votes, submitted the statements of count (Forms XIV) to the concerned Returning Officer. It is submitted that on the basis of Forms XIV prepared by the Presiding Officers, the Returning Officer consolidated the result as per Form XVI. Since the petitioner secured highest number of votes (44,676 votes), he was accordingly announced as returned candidate. However, respondent No,2 Engineer Dawar Khan Kundi, a contesting candidate felt aggrieved and on 20-2-2008 filed an application for rechecking/recount of votes before Returning Officer alleging therein that the consolidation or tabulation of results was neither made/prepared in his presence or in the presence of his polling agents nor any independent observer or any media person was present and an abnormal delay occurred in the compilation of the results of the said constituency.
' Similarly, respondent No,3 Habibullah Khan Kundi moved an application challenging the unofficial result on the ground that he had secured the highest number of votes as per the result announced by the Returning Officer and prayed re-checking/re-count of votes. Vide order dated 20-2-2008, the learned Returning Officer withheld the official result and later on, vide order dated 21-2-2008 allowed both the applications and directed to come up on 23-2-2008 at 9-00 hours for re- checking/re-count of votes. Feeling aggrieved, petitioner filed Writ Petition No,236 of 2008 on 27-2- 2008 before learned Peshawar High Court, Peshawar. On 28-2-2008 pre-admission notice was issued to respondents and in the meanwhile recount was stayed. Respondent No,3 Habibullah Khan Kundi filed Writ Petition No,254 of 2008 before the learned High Court against the order dated 27-2-2008 passed by the Returning Officer whereby the recounting of votes was stopped. Both the writ petitions were heard and disposed of vide the impugned judgment. The writ petition filed by petitioner was dismissed while that of respondent No,3 was allowed. The order of the Returning Officer dated 27-2-2008 was set aside and the District Returning Officer was directed to complete the process of recounting and consolidation of results and submit the same to the Election Commission of Pakistan.
3. Learned counsel for the petitioner contended that Presiding Officer had prepared Forms XIV on 18-2-2008 which were sent to the Returning Officer and on the basis thereof the petitioner was unofficially declared as returned candidate, whereas the Returning Officer had prepared Form XVI on 20-2-2008 but due to the filing of applications for recount by respondents Nos.2 and 3, the same were not transmitted to the Election Commission. It is contended that once the results, pursuant to the statements of counts submitted by the Presiding Officer of the Returning Officer were consolidated as per Form XVI, the Returning Officer had become functus officio and had thus no jurisdiction to order recount/rechecking. In support, he relied upon the case reported as Choudhary Perwaiz Akhtar v. DRO (PLD 2006 Lah. 29) wherein, it has been held that Returning Officer, after consolidating the result for its onward transmission had become functus officio. He further contended that the order of recount passed by Returning Officer was in violation of the principles of natural justice as the same was passed ex parte at the back of petitioner without providing him opportunity of hearing, as such the same is liable to be declared as null and avoid.
According to him, petitioner was declared as returned candidate and the same could not have been undone, particularly without notice to him. He further contended that the conditions specified in section 39 of the Representation of the People Act, 1976 (hereinafter referred to as "the Act of 1976') were not fulfilled. In support, he placed reliance on Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) wherein it was held that recount could only be ordered if conditions laid down in that behalf were fulfilled and Returning Officer was "satisfied" that request was "reasonable". It was also held that vague allegations not containing adequate statement of material facts cannot be the ground for recount, which cannot be granted as a matter of right but only on basis of evidence to the effect that there are good grounds for believing that there has been a mistake in the counting of votes. Learned counsel for the petitioner further contended that the application filed on behalf of respondent No,3 Habibullah Khan Kundi was not signed by him, rather the same was signed by this counsel who had also signed the affidavit. According to him, since provisions of Order VI Rule 14 of the Code of Civil Procedure, 1908 were not complied with, therefore, application for recount was not maintainable and it could not be taken into consideration. He contended that even the application filed by respondent No,2 Engineer Dawar Khan Kundi was frivolous as it was against facts and circumstances. Learned counsel for the petitioner also contended that neither any complaint nor F.I.R. Was lodged during the process of election, therefore, the order of recount passed by Returning Officer was mala fide and arbitrary. He argued that learned High Court has erred in maintaining the same vide the impugned judgment. It is further his case that after consolidation of result the only remedy available to the respondents was to file an election petition under section 52 of the Act of 1976. In support, he relied upon Mehdi Abbas Khan v. Rana Muhammad Qasim Noon (2007 CLC 1330) wherein it was held that entire exercise by the Returning Officer was liable to be struck down as after the preparation of consolidated result, the Returning Officer or even the Election Commission of Pakistan were left with no authority to reopen the matter at all and further in absence of any express direction by the Election Commission of Pakistan in terms of section 39 (6) (b) of the Act of 1976, such question could only be determined by way of filing of election petition in terms of Article 225 of the Constitution as well as section 52 of the Act of 1976. He further relied upon the cases reported as Bashir Ahmed Bhanbhan v. Shaukat Ali Rajpur (PLD 2004 SC 579 ), Malik Umar Aslam v. Sumera Malik (PLD 2007 SC 362), Sardar Zada Zafar Abbas and others v. Syed Hasan Murtaza and others (PLD 2005 SC 600), Ch. Muhammad Ashraf, v. Rana Tariq Javed (2007 SCMR 34). He lastly contended that due to illegal act of the Returning Officer the constituency has remained unrepresented.
4. Sardar Muhammad Latif Khan Khosa, learned counsel for respondent No,2 Engineer Dawar Khan Kundi contended that out of total 257 polling stations, result of only 22 polling stations was signed by the polling agents. He contended that at the time of recount, many polling bags were found torn and ballot papers double stamped and ripped, as such no sanctity/credence could be given to the recount of votes. He further contended that no candidate can be declared as a returned candidate after the destruction of, or interference with evidence. According to him, no consolidation had taken place as it was observed by the Returning Officer in his order dated 20-2-2008 that Form XVI had been withheld on account of filing of applications for recount. He, therefore, prayed that direction may be given for a re-poll in the constituency to ensure return of a candidate who truly represents the wishes of the voters of the constituency.
5. Mr. Wasim Sajjad, learned counsel for the respondent No,3 has submitted that no consolidation had taken place on 20-2-2008. However, according to unofficial result announced on radio/television on the basis of preliminary result, petitioner was declared as returned candidate.
On this, applications were moved for re-count, firstly by respondent No,2 Engineer Dawar Khan and secondly on behalf of respondent No,3 Habibullah Khan Kundi, which were allowed by the Returning Officer on 21-2-2008 and re-count was directed to be held on 23-2-2008. Learned counsel vehemently contended that the said order was not challenged, rather petitioner participated in the process of re-count. However, after four days i,e, on 27-2-2008 when re-count had been held in 181 polling stations, petitioner moved application showing no confidence and requested that the process of recount be stopped but could not succeed. Thereafter, he filed writ petition before learned High Court in which stay was granted on 28-2-2008, but ultimately the petition was dismissed on 13-3-2008. According to him, the plea of the petitioner that he was declared successful in the unofficial result was taken, not before the learned High Court but before this Court for the first time therefore, the same is not sustainable in law. He contended that notices of recount were issued by the Returning Officer on 15-3-2008 and these notices also appeared in the press. He further submitted that there is an application on record filed by the petitioner Moulana Atta-ur- Rehman to the Chief Election Commissioner in which he had admitted that he came to know about the recount on 18-3-2008. He also referred to the report of District Returning Officer dated 20-3- 2008 wherein it is clearly mentioned that notices were issued to the contesting candidates. On the said date, the representatives/authorized agents of some of the contesting candidates, except those of Maulana Atta-ur-Rehman and Engineer Dawar Khan Kundi were present. Some of the supporters of the above two candidates were also present who had informed that the said two candidates were not served with the notices. They were asked by the Returning Officer to enter into the Courtroom to observe the proceedings of recount as agents or leave the Courtroom, so that recount could proceed peacefully. Learned counsel contended that this report also shows that the petitioner had the knowledge of re-count. He also contended that the news regarding recount and the proceedings before this Court also appeared in the local newspaper on 17-3-2008 and 19-3- 2008 which shows that the petitioner had knowledge about the re-count but he was avoiding to participate in the process for mala fide reason and obvious consequence of the recount. He further submitted that even Form No, XVI was not sent to the Election Commission, as such question of filling Form No,XVII did not arise and the said documents were never produced before the High Court. He has further contended that judgment in the case of Mehdi Abbas (supra) relied by the learned counsel for the petitioner is distinguishable, as in that case Form XVII had been prepared by the Returning Officer and sent to the Election Commission, but then it was revised by the Returning Officer on the direction of the Returning Officer due to some error in the count. Recount was done and the result was changed in that case. Moreover, the said judgment was set aside by this Court vide order dated 19-6-2007 passed in Civil Appeal No,1122 of 2007 (Rana Muhammad Qasim Noon v. Mehdi Abbas Khan) and it was held that consolidated result, prepared and issued by the Returning Officer on 12-10-2002 was a legal and valid result, as such the petitioner was declared successful. He has placed reliance upon the case reported as Abdul Hague Indhar v.
Province of Sindh (2000 SCMR 907). He also relied on the case of Commissioner of Income Tax v.
Messrs Media Network and others (PLD 2006 SC 787) wherein it was held that depending upon the facts and circumstances of each case, there is no mandatory requirement in every case that the other side must be given a notice before preliminary steps are taken. However, it is not possible to lay down an absolute rule of universal application governing all situations as to the exclusion or otherwise of the audi alteram partem rule in the course of preliminary inquiries or investigations.
6. Malik Muhammad Qayyum, Attorney-General for Pakistan has contended that order of recount has been passed without notice of hearing and the conditions laid down in section 39 of the Act of 1976 have not been complied with in letter and spirit. He further submitted that it has, also been admitted by respondent No,2 in his application for rechecking/recount of ballot papers/votes that consolidation proceedings were carried out by the Returning Officer. He then referred to Para. 6 of the Concise statement which shows that consolidation proceedings had taken place and contended that if there was no consolidation, then there would be no recount. He added that section 39 of the Act of 1976 was irrelevant in this case, as the question was whether consolidation was carried out or not? He further added that grievance of respondent No,3 was that consolidation was not in accordance with law but was not that consolidation had not been done. He further submitted that after having consolidated the results, the Returning Officer had no jurisdiction to order recount as he had become functus officio. He further contended that it was not the case of the respondent No,3 before the Returning Officer that the conditions mentioned in section 39 of the Act of 1976 for the order of re-count had not been complied with. He added that Form No,XIV in pursuance whereof consolidation Form' No, XVI was prepared had not been challenged by anybody. He referred to the case of Ghulam Qadir v. D&SJ (2001 SCMR 237) wherein it has been held that recount of ballot papers can only be ordered under section 39 of the Act of 1976 if the conditions laid down therein are fulfilled and Returning Officer is satisfied that the request is reasonable. He also referred to the case of Syed Saeed Hassan v. Pyar Ali (PLD 1976 SC 6 at page 30) and highlighted the following considerations:- "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary meanings. Further "satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscillation. To be "satisfied" with a state of things is to be honestly convinced about it in one's own mind.
According to Black's Law Dictionary apart from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. "Satisfactory evidence" has been explained as sufficient evidence meaning an amount of proof which ordinary satisfied an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum word "satisfy" is held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince. "Entitlement" according to Oxford English Dictionary refers to the determination of a person's right to a certain position, office or status based on the correct assessm ent of his claims in the light of the legal requirements and prescribed qualifications.
According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like "vested", prima facie, refers to the right, and not to the possession. According to the Oxford English Dictionary, word "entitle" had been used in the sense of furnishing with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionary "to entitle" in its usual sense is to give a right or title. The word "reasonable" has been interpreted by this Court in the case of Ellahi Cotton Ltd. v.
Federation of Pakistan (PLD 1997 SC 582) as a relative generic term difficult of adequate definition.
It, inter alia, connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the constitutional bounds."
' He also placed reliance on the cases of Haji Muhammad Asghar v. Malik Shah Muhammad Anwar (PLD 1986 SC 542), Ch. M. Din v. Abdul Qayyum (PLD 1987 SC 324), S. Masroor Ahsan v. Syed Ali Ashraf Shah (1994 MLD 704) and Farrukh Hussain Khan Daha v. Election Commission (PLD 2006 Lah.
22).
7. In rebuttal, Mr. Abdul Hafeez Pirzada adopted the arguments of Malik Muhammad Qayyum and submitted that order of recount is void ab initio on the grounds of irregularity, irrationality, principle of reasonableness, violation of procedural formalities/natural justice and deprivation of legitimate expectations. He added that not a single polling station has been pointed out where any illegality is committed so as to justify re-count.
8. We have heard Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court for the petitioner, Mr. Waseem Sajjad, learned Senior Advocate Supreme Court for respondent No,3, Sardar M. Latif Khan Khosa, learned Advocate Supreme Court for respondent No,2 and learned Attorney- General for Pakistan at length and have gone through the record and proceedings of the case in minute particulars.
9. The petitioner was declared as returned candidate in the unofficial result announced by Election Commission, which is established from the applications filed by respondents Nos.2 and 3 before the Returning Officer and the order of re-checking/recount passed thereon. On perusal of record, we find that Forms XIV prepared by the respective Presiding Officers on the basis of the counting of votes are in order and no one has raised any objection qua them. Further, Form XVI (consolidation statement of the count of the result) based on Forms XIV prepared by Presiding Officers was duly signed by the Returning Officer on 20-2-2008. Clearly, after having signed the above form, the learned Returning Officer had become functus officio and the withholding of consolidated statement of result by him was not justified on any ground, to say the least that the respondent had filed applications for recount. The proceedings carried out subsequently were coram non judice and void ab initio. In support of the above proposition, reference is made to Ghani-ur- Rehman v. Pir Haider Ali Shah (1997 CLC 1092) wherein it was held that the order of recount of votes of entire constituency passed by the Election Commission after Gazette notification of the successful candidate was void ab initio, without lawful authority and of no legal effect and, therefore, the same was set aside. In Ch. Perwaiz Akhtar v. District Returning Officer (PLD 2006 Lahore 29) it was held that Returning Officer, after consolidating the result for its onward transmission becomes functus officio. In Emmanuel Masih v. The Punjab Local Councils Election Authority and others (1985 SCMR 729) it was held that Election Authority is given extensive power to ensure impartiality, honesty and fairness while the elections were being conducted, but it becomes functus officio after the elections are over and the validity of the elections can be challenged by aggrieved person only through election petition. In the same string are the cases reported as Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729), Punjab Workers' Welfare Board Government of Punjab and Human Resources Department, Lahore v. Mehr Din (2007 SCMR 13), Muhammad Tariq Khan v . Khawaja Muhammad Jawad Asami (2007 SCMR 818) and All Pakistan Newspapers Society v. Federation of Pakistan and others (PLD 2004 SC 600). The learned High Court has not appreciated the law laid down in the above reported cases. It is well settled that when the basic order is without lawful authority and void ab initio, then the entire superstructure raised thereon falls to the ground automatically as held in Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC 104). Reference by the learned counsel for the respondent No,3 to the case of Mehdi Abbas (supra) is of no avail, in that, it was not a case of recount, but Form XVII was revised by the Returning Officer on the direction of the Election Commission due to some error in the count.
10. We also find that the order of recount was passed by the learned Returning Officer in violation of the principle of audi alteram partem, inasmuch as he did not issue any notice to the petitioner and provide him any opportunity of hearing before passing the order of re-count. The fact that the petitioner had the knowledge of the process of recount as some of his supporters were present outside the Courtroom of the Returning Officer has no bearing on the issue, which is that the petitioner was not heard on 20-2-2008 when the result was withheld or on 21-2-2008 when rechecking/recount was ordered. Thus, on this score too, the order of the learned Returning Officer is not sustainable in law. It is well-settled that no order can be passed at the back 'of a party, particularly against a person who may be affected by such an order or which deprives him of his vested right or interest. In this behalf, reference may be made to the case of Nawab Khan v.
Qamar-ud-Din (1999 SCMR 299) wherein it was held that ex parte proceedings of re-counting the votes behind the back of successful candidate (whose success had been duly notified) were not justified. The contention that no notice was required to be issued before C passing the order of recount cannot be accepted: The principles of natural justice enshrined in maxim "audi alteram partem" is always deemed to be embedded in every statute even if there is no specific or express provision containing it.
11. In view of above, both the petitions are converted into appeal and are allowed. The impugned judgment dated 13-3-2008 of the Peshawar High Court is set aside. Consequently, the order dated 21-2-2008 passed by Returning Officer, NA-25 Tank-cum Dera Ismail Khan for rechecking/recount of ballot papers, including the proceedings of rechecking/recount are also set aside and the Returning Officer is directed to transmit the consolidated statement of result (Form XVI dated 20-2- 2008) to the Election Commission of Pakistan for . Formal announcement of result of election of the above constituency accordingly.
…and 45 more citing cases