IJAZ UL AHSAN, J.---The petitioner is aggrieved of an order dated 18-5-2013 passed by the Election Commission of Pakistan. Through the impugned order, it has been directed that the Returning Officer shall complete the process of recount within three days in the presence of all the candidates and if any question is raised, it shall be. Dealt in a summary manner. It has further been directed that recount shall be held under the supervision of District Returning Officer. The Election Commission has not disposed of the matter. It has directed the Returning Officer to submit the report to the Election Commission by 22-5-2013 and the matter has been fixed on 23-5-2013.
2. The learned counsel for the petitioner submits that the main ground that prevailed with the learned Election Commission in ordering recount is that there is a narrow difference of votes between the winning and the losing candidate does not constitute valid reason to order recount. In support of his contentions, the learned counsel relies on Malik Nausher Khan Langerial v. Khalid Mahmood Chohan and others (2004 CLC 1249), (1987 CLC 1535 (no judgment), Sardar Bakhsh v.
Mst. Sahib Khatoon (1988 CLC 2037) and Qaisar Ifraheem Saroya v. Returning Officer and 2 others (1995 CLC 917). He further submits that the results have admittedly been consolidated on 13-5-2013.
He, therefore, submits that once the results have been consolidated, the Returning Officer as well as the Election Commission are denuded of the jurisdiction" to order recount. The learned counsel further submits that the respondent had moved an application with the Returning Officer for recount, which had not been decided. While the matter was pending, a fresh application was moved with the Election Commission of Pakistan, which took cognizance of the matter and passed the impugned order. He, therefore, submits that the Returning Officer has been by-passed in this matter, which makes the impugned order illegal. The learned counsel further maintains on the strength of Section 46 of the Representation of the People Act, 1976 that de-sealing can only be ordered by the Election Tribunal after the results have been notified through the official gazette and the election petition has been filed in terms of section 52 of ROPA. He, therefore, reiterates his stance that recount, which would involve de-sealing of the record, is beyond the jurisdiction of the Election Commission. The learned counsel finally submits that presumption of truth is attached to the record prepared and sealed by the Returning Officer. If at all that presumption is to be dislodged, it would require recording of evidence, which cannot be undertaken by the Election Commission, whose jurisdiction is summary in nature. As such the impugned order suffers from illegality, insofar as the presumption of correctness has been dislodged without recording cogent reasons. The learned counsel further maintains that the order is corm non judice in view of the fact that it has been passed by two members of the Commission. As such the Bench, which heard and decided the matter, was not validly constituted. He finally argues that no delegation of powers has occurred in terms of section 4 of ROPA that may be conferred jurisdiction on a bench of the Commission comprising two members.
3. The learned counsel for the respondent, on the other hand, submits that in the first place both parties had properly been heard by the Election Commission. He points out that a large number of documents were placed before the Election Commission showing arithmetical errors as well as wrong entries, which appeared in comparison of results submitted by the Presiding Officers as noted in the result sheet of the Returning Officer. By way of an example, the learned counsel submits that for Polling Station No,23, while the Presiding Officer had noted 1016 votes, against the same polling station, the Returning Officer had recorded 969 votes. Likewise, in Polling Station No,30, the Presiding Officer had mentioned 786 votes, the Returning Officer had mentioned 752 votes. He, therefore, submits that on account of patent errors in the record, which were brought to the notice of the learned Commission, the Commission was persuaded " to direct recount.
4. The learned counsel further submits that the Election Commission had the jurisdiction and rightly interfered in the matter because no evidence was required in view of the admitted documents placed before it on the basis of which, prima-facie, the errors in the record were apparent on the face of the record. In support of his contention and the power of the Election Commission to interfere in this matter, the learned counsel refers to Syed Nayyar Hussain Bukhari v. District Returning Officer NA-49, Islamabad and others (PLD 2008 SC 487). Referring to powers of the Election Commission, the learned counsel submits that in terms of section 39(6) of ROPA, the Election Commission has the power in appropriate cases to order recount in such manner and at such place as may be directed by it. He further submits that said power of Commission is complemented by provisions of section 106(c), which empowers the Commission to issue such instructions and exercise such powers, and make such consequential orders, as may in its opinion, be necessary for ensuring that the election is conducted honestly, justly and fairly, and in accordance with law.
5. The learned Deputy Attorney General, who has appeared on Court's call, has controverted the assertions of the learned counsel for the petitioner. He submits that the powers of the Election Commission do not come to an end on consolidation of results. Referring to section 39(6) read with section 103(c) of ROPA together with Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, the learned counsel submits that merely by consolidation of results, the Election Commission is not denuded of its powers to take such steps as may be necessary to discharge its constitutional mandate as provided in Article 218 of the Constitution of Islamic Republic of Pakistan, 1973. He points out that throughout the election process, the Election Commission continues to exercise jurisdiction and has the powers in appropriate cases to interfere in different matters including ordering recount in order to fulfill its legal and constitutional obligations. He submits that the election process starts from the announcement of the election schedule and continues till the results are finally notified through the official gazette. He maintains that at that stage, except for the exceptions created in section 103AA, the Election Commission becomes functus officio and the matter falls to the jurisdiction of the Election Tribunal. He, therefore, submits that mere consolidation of results does not constitute a bar on the powers of the Election Commission in suitable cases to order recount. In support of his contentions, the learned counsel has referred to the aforenoted judgment reported as Syed Nayyar Hussain Bukhari v. District Returning Officer NA- 49, Islamabad and others (PLD 2008 SC 487). The learned Deputy Attorney-General for Pakistan further contends that the two member bench was validly constituted by virtue of delegations of powers in terms of section 4 of ROPA. Therefore, the impugned order does not suffer from any jurisdictional error, defect or flaw.
6. The learned Standing. Counsel has referred to some case-law from the Indian Jurisdiction in Jashbhai Chunibhai Patel v. Anverbeg A. Mirza (AIR 1969 SC 586), Sardarmal Lalwani v. State of Madhya Pardesh and others (1973 SCC 599) to argue, that in appropriate cases there is no bar on the power of the Election Commission to order recount.
7. I have heard the learned counsel for the parties and gone through the record with their assistance. The main question requiring determination by this Court is whether the order passed by the Election Commission can be interfered with at this stage by this Court in exercise of its extraordinary constitutional jurisdiction. As far as the jurisdiction of the Election Commission to interfere in appropriate matters, provisions of section 39(6)(b) are unambiguous. These provide that recount can be ordered by the Election Commission in such manner and at such place as may be directed by the Commission. The said power is duly complemented by the provisions of section 103(c) of ROPA which empowers Election Commission to issue such instructions and exercise such powers and make such consequential orders, as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly and fairly, and in accordance with the provisions of ROPA and the rules framed thereunder.
8. Further section 104 of ROPA also empowers the Election Commission of Pakistan by providing that anything required to be done for carrying out the purpose of the said Act, for which no provision or no sufficient provision exists shall be done by such authority and in such manner as the Commission may direct. On examination of the record and hearing the learned counsel for the parties, it appears that record was produced before the. Election Commission, which indicated that there were patent errors in the documents, which were apparent on the face of the record. It was apparently for this reason and to address the concerns of the petitioner that with the consent of the learned counsel for the petitioner, a report was called and a direction was issued that recount shall be held in presence of all candidates under the supervision of the District Returning Officer.
This was a step meant to ensure a just, fair and transparent exercise of recount to the satisfaction of all candidates. This in my view is in line with the raison d'etre of the Election Commission. Further the learned Election Commission has not taken its hands off the matter. It will continue to be seized of the matter by directing that not only the report be submitted before it on 22-5-2013 but the parties to appear before it on the said date.
9. On hearing the learned Deputy Attorney-General for Pakistan, I find myself in agreement with the contentions raised by him that the Election Commission of Pakistan is not denuded of its powers on consolidation of results. Even otherwise, as the premier authority to arrange free, fair and transparent elections and having a mandate under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, it is the primary obligation of the Election Commission of Pakistan to ensure organization and conduct of election and make such arrangements as are necessary to ensure that the elections are conducted honestly, justly and fairly, and in accordance with law and the Constitution.
10. From the scheme of elections as provided in Representation of the People Act, it appears that the election process starts from the announcement of election schedule and ends of notification of the results. Therefore, till such time that the results have been notified, the Election Commission of Pakistan continues to be the supervisor of the process and can in appropriate cases interfere in the matter in order to fulfill its constitutional obligations. The argument of the learned counsel for the petitioner that in terms of section 46 of ROPA, the power to de-seal the election record and conduct recount lies only with an Election Tribunal, has not persuaded me. This is in view of the fact that section 46 is an enabling provision, which empowers the Tribunal, if it considers appropriate to pass an order to open packets of counterfoils and certificates or the inspection of any counted ballot papers. However, this power is available if and when such Tribunal is approached by any of the candidates, which is not the case here. However, in my view the provisions of section 46 of ROPA does not take away the powers available to the Election Commission inter alia under sections 39 and 103 of ROPA, which include the power, in appropriate cases to order recount of votes.
11. Even otherwise, I am of the view that recount would not prima facie lead to any prejudice being caused to the petitioner in view of the fact that the matter is still sub judice before the Election Commission of Pakistan. In case the petitioner is aggrieved of any order that may be passed by the Election Commission, legal and constitutional remedies would still be available to the petitioner, who may if so advised avail the same at the appropriate time. As far as the jurisdiction of the learned two Member Bench of ECP is concerned, section 4 of ROPA provides for delegation of powers. The learned counsel for the petitioner has made a half hearted attempt to challenge its jurisdiction at this stage. Admittedly, no challenge to jurisdiction was made during proceedings before the learned bench where the petitioner was duly represented. Further the learned counsel for the petitioner has not placed on record anything to indicate lack of jurisdiction. On the contrary, the learned Deputy Attorney-General for Pakistan has categorically stated that power of delegation is available under section 4 of the ROPA and that such delegation has indeed taken place. Further, the matter would again go before the ECP on May 22, 2013 where this and any other objections that the petitioner may have can be taken.
12. Without prejudice and notwithstanding what has been stated above, the power of this Court to interfere in the matters of the nature, which have been raised through this constitutional petition, are limited in scope and are circumscribed by the provisions of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 105 and other provisions of the Representation of the People Act, 1976. In addition, the order dated 18-5-2013 is in the nature of an interim order.
The scope of challenging interim orders under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is narrow and limited. On hearing the learned counsel for the parties and examination of the record, I am not convinced that this is a fit case where the extraordinary jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is required to be exercised.
13. For reasons recorded above, 1 am not inclined to interfere in the matter at this stage.
Consequently, this petition fails. It is accordingly dismissed.