1. ' SAJJAD ALI SHAH, J.--- The petitioner through instant petition has impugned Order dated 20.06.2014 passed by the Election Commission of Pakistan whereby the Commission while exercising its power under Section 103(b) of the Representation of the People Act, 1976 (hereinafter referred to as "Act 1976") directed the District Returning Officer to recount the rejected votes of seven polling stations to ensure that the rejection of the votes is in accordance with Rules 17, 22 and 23 of the Representation of the People (Conduct of Election) Rules, 1977.
2. ' Briefly, on 06.05.2014, the Election Commission of Pakistan conducted re-polling at 21 polling stations of NA-202 Shikarpur and according to the final consolidated result the petitioner was declared returned candidate as the petitioner secured 54013 votes whereas, the respondent No.1 secured 53780 votes and consequently the petitioner was declared returned candidate on account of having secured 233 votes more than the respondent No.l. So far as the result of re- polling at 21 polling stations the petitioner secured 1005 votes, whereas, the respondent No.1 secured 14667 votes. The record reflect that the respondent No.1 on the date of re-polling i.e. 06.05.2014 at about 11.00 PM addressed an application to the Hon'ble Chief Justice of Pakistan, Hon'ble Chief Justice Sindh High Court at Karachi, the Chief Election Commissioner, the Provincial Election Commissioner Sindh, Karachi while endorsing copies to the District Returning Officer, Shikarpur, the Returning Officer, NA-202 Shikarpur and the District Election Commissioner Shikarpur, raising a grievance that when the ballot boxes were opened his polling agents were expelled out for the polling stations and the police stamped on his valid votes two or three times, therefore, about 400 votes were turned invalid. It was requested that all the invalid votes be checked and recounted so that free and fair result of the votes could be issued. It appears that the application of the Petitioner was not entertained by the Returning Officer on the ground that it was not addressed to him and consequently, on 07.05.2014, the Respondent No.1 made another application addressed to the Returning Officer Shikarpur, NA-202 of the same incident. The said application was taken up for hearing by the Returning Officer well before the commencement of reconciliation process and was rejected mainly on the ground that polling agents of the Respondent had not filed any written complaint about rejection of his valid votes either before him or before the Presiding Officer. The Respondent No.1 thereafter on 27.05.2014 while invoking Section 103 read with Section 103AA of the Act 1976 moved the Election Commission of Pakistan to examine and recount 490 votes which were excluded from recounting as rejected votes and the Election Commission of Pakistan after hearing the parties through impugned order allowed the petition by directing the District Returning Officer to recount the rejected votes of seven polling stations.
3. ' Mr. Farooq H. Naek, learned counsel appearing for the petitioner, contended that the impugned order has been passed by the learned two out of five members of the Election Commission of Pakistan and therefore, is per incuriam being coram non judice. In support of his contention Mr. Naek while referring Rule 8 of the Election Commission Order, 2002 and placing reliance on the judgment of Imran Khan and others v. Election Commission of Pakistan and others (2012 SCMR 448) contended that it provides that "All decisions of the Election Commission of Pakistan shall be expressed in terms of opinion of the majority of its members, including the Chairman".
4. Consequently, order passed by two out of five members, does not enjoy majority and, therefore, is bad. Mr. Naek in support of his contention further while referring Article 218 of the Constitution of Islamic Republic of Pakistan contended that it originally provided that the Election Commission shall consist of a Chairman and two members whereafter the said article was substituted by Legal Frame Work Order, 2002 and it provided that the Election Commission shall consist of a Chairman and four members. The constitution of the Election Commission was again changed to a Commissioner and five members and presently Article 218 provides that the Election Commission shall consist of a Chairman and four members. Mr. Naek contended that all decisions of the Election Commission are to be expressed in terms of opinion of the majority which is at least three members, therefore, the order is per incuriam. It was next contended that the result of re-polling was announced on 07.05.2014 and the Petitioner was notified as returned candidate on 09.05.2014, thereafter he took oath of his office on 12.05.2014, whereas, the instant petition was filed on 27.05.2014 before the. Election Commission of Pakistan which could not have been entertained under Article 103-AA for the reason that though the Election Commission under Article 103-AA in case of grave illegality or on account of violation of the election laws after conducting summary inquiry has the power to declare the entire election or election of some of the polling stations as void but has no power to direct recounting. In support of his contention Mr. Naek has placed reliance on the judgment of Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCMR 684) and Dr. Sohrab Ahmed Khan Sarki v. Mir Hassan Khoso and others (2011 SCMR 1084).
5. ' Mr. Abdul Majeed Khoso, learned counsel appearing for the respondent No.1 while referring to Article 9A of the Election Commission Order 2002 as well as Section 4 of the Act 1976, contended that the Election Commission has the power to delegate all or any of its power and function under the Order 2002 or Act 1976 to be performed by the Commission on any of its member. Per counsel, a similar proposition had come up before the Lahore High Court in the case of Ghulam Muhammad Mustafa Khar v. Election Commission of Pakistan (PLD 1977 Lahore 1437) where a larger bench of the Lahore High Court had come to the conclusion that delegations of the power by the Election Commission upon its Commissioner or member includes the authority to hear and decide the appeal, it was, therefore, pleaded that even one member can decide such petitions and the order impugned is competently passed. On merits, it was contended that in General Election held on 13.5.2013 respondent No.1 polled 54,633 votes, whereas the petitioner secured 53,381 votes and consequently the respondent No.1 on 22.5.2013 was notified as "Returned Candidate" from NA-202 Shikarpur. However, the petitioner thereafter challenged the said election by filing an election petition which after hearing was allowed vide order dated 03.03.2014 by directing re-polling on 21 polling stations, which was held on 06.5.2014. Per counsel, the respondent on the day of re-polling moved an application agitating his grievance that his valid votes were made invalid by stamping it for more than one time, the grievance was not heard by the Returning Officer on the ground that the application was not addressed to him. Consequently on the next day viz. On 07.05.2014 the respondent No.1 resubmitted an application on the same ground which after hearing was rejected by the Returning Officer on the ground that such grievance was not agitated before the Presiding Officer. Per counsel, since the Returning Officer had failed to exercise power under subsection (6) of Section 39 of the Act 1976, therefore, the Petitioner had no option but to approach the Erection Commission seeking recounting. In response to the contention of Mr. Naek that the Election Commission has no power under Section 103AA to direct recounting, it is contended that Section 103 (b) saddled the Commission with the power to review any order passed by an officer under the Act 1976 including rejection of a ballot paper. Likewise, Section 39 (6) (b) also confer power upon the Commission to direct recounting. In support of his contention counsel has placed reliance on the judgment of the Apex Court in the case of Aftab Shahban Mirani and others v. Muhammad Ibrahim and others (PLD 2008 Supreme Court 779) and Dr. Imran Khattak and another v. Ms. Sofia Waqar Khattak and others (2014 SCMR 122).
6. ' On the other hand Mr. Zia-ul-Haq Makhdoom, DAG while referring Sections 3 and 8 of the Act 1976 contended that the order passed by the two members is a valid order and cannot be held as per incuriam and coram non judice.
7. ' Mr. Naek, learned counsel appearing for the Petitioner in rebuttal contended that the power under clause (b) of Section 103 could not be exercised after the petitioner was notified as returned candidate. It was next contended that the petition before the Election Commission would clearly reflect that the Respondent No.1 never sought review of the order passed by the Returning Officer and the allegations contained were vague and therefore, directing recounting of the rejected votes was uncalled for. It was lastly contended that the Respondent No.1 could have exercised such right by making a request to the Presiding Officer under Section 38 (5) of the Act 1976 seeking recounting.
8. ' We have heard the learned counsel for the respective parties and have perused the record with their able assistance as well as the case-law cited at bar.
9. ' Perusal of Form-XVI filed by the petitioner along with memo of petition reflecting the result of re- polling of 21 polling stations held on 06.5.2013 shows that in polling stations GPS Sahib Dino Badani
(Male) and (Female) as well as GPS Panah Shujrah no votes was polled in favour of the petitioner, whereas in these three polling stations 14, 48 and 51 votes were rejected. Likewise in GPS Abdul Karim Kosh, GMS Sobdar Jatoi, GPS Bux Ali Jatoi, GPS Sher Ali Jatoi, GPS Babar Badhani and GPS Haji Misri only 2 to 4 votes were polled in favour of the petitioner, whereas 46, 10, 29, 21, 24 and 23 votes were rejected. The re-polling of these 09 polling stations would reflect that the petitioner had secured 19 votes in comparison to the 6,496 votes polled by the Respondent No.1, whereas the total votes rejected in these 09 polling stations were 257 votes and looking at the lead which had turned the table by de-seating the respondent No.1 and declaring the petitioner as returned candidate i.e. 233, vis-a-vis the total of 490 votes rejected in these 21 constituencies was a matter of grave concern and the application of respondent No.1 containing such serious concerns should not have been brushed aside so casually. The other important fact which on the factual plain was in favour of the respondent No.1 as is evident from the order of Returning Officer dated 07.05.2014 that the reconciliation process was yet to take place when the total rejected votes were to be incorporated in Form-XVI. Notwithstanding, the timely lodging of protest by the petitioner on the day of re-polling and re-filing the application before the Returning Officer on the next day again requesting for recounting of the invalid votes well before the commencement of reconciliation process mainly on the ground that his polling agents were turned out should not have been rejected on the ground that polling agent should have reported to the Presiding Officer. The order of-course was unwarranted, therefore, the order of Election Commission on factual plane is liable to be upheld.
10. ' Now we would take up the objection raised by Mr.Farooq H. Naek in respect of competency of the application before the Election Commission. As to the first objection that the order impugned was passed by two out of five members lacking majority and therefore, is coram non juclice. Though Rule 8 of the Election Commission Order, 2002 referred to by Mr. Naik provides that all decisions of the Election Commission shall be expressed in terms of the opinion of the majority but at the same time Section 4 of the Representation of the People Act, 1976 empowers the commission to authorize its Chairman or any of its member or any of the officer to exercise and perform all or any of its power and functions under the Act and there is no dispute that the power exercised by the Commission under Section 103 or 103AA questioned in this petition of course were under the Act of 1976. The language used in Section 4 of the Act, 1976 is very clear and unambiguous and its plain reading leaves no doubt in our mind that the power of the Commission to delegate its function on its Chairman or any of its Member are absolutely independent of Rule 8 of the Election Commission Order 2002. Rule 8 of the Election Commission Order, 2002 obviously is attracted where more than one Member of the Election Commission decide a matter in a joint sitting. However, where one member exercise the delegated power of B Commission it represents the entire commission and its decision amounts to the decision of the Commission and in such a situation Rule 8 of the Election Commission Order, 2002 would have no application. A similar question had come up before Larger Bench of Lahore High Court in the case of Ghulam Mohd. Mustafa Khar (supra) referred to by the counsel for the Respondent wherein it was pleaded that "under the provisions of the Representation of People Act, 1976 made applicable to the impending elections, the appeal lies to the Election Commission as a whole and that all the members of the Commission can jointly hear and decide it. And since it has been clearly laid down in Article 8 of the President's (Post Proclamation) Order No.4 of 1977 that all decisions of the Election Commission should be expressed in terms of the opinion of the majority of its members including the Chairman, therefore, the appeal could not have been lawfully decided by a single member. The Bench after hearing came to the following conclusion: "Thus the power of the Election Commission to delegate its authority to any single member is intact including the authority to hear and decide appeals. The provisions of Article 8 of the President's (Post Proclamation) Order No.4 will be attracted only when the Commission decides anything in a joint session. It is not the case of the petitioner that the authority to hear and decide appeals was not delegated by the Commission to the learned member concerned. He has only unsuccessfully questioned the authority of the Commission to delegate.
11. ' We, therefore, hold that the learned members, who allowed the appeal of the respondent No.3 was competent to do so".
12. ' As to the second objection of Mr. Naek that the Commission had no power whatsoever under Section 103AA to direct recounting of the rejected votes. The record reflects that on the day of re- polling i.e. 06.05.2014 the Respondent had moved an application raising a grievance that his valid votes were turned into invalid by re-stamping and that his polling agents were turned out from the Polling Stations. With this grievance a request for recounting of the invalid votes was made. Since this application was not responded by the Returning Officer on the ground that it was only endorsed to him, the Respondent on the next day i.e. 07.05.2014 repeated the application with the same grievance. This time the application was entertained by the Returning Officer and after hearing the Respondent the same was rejected as the Returning Officer was of the view that since he has not received written complaint from any polling agent, therefore, valid ballot papers could not be checked without permission or direction from the Election Commissioner or from the Election Tribunal. It is important to observe that the order of the Returning Officer clearly reflects that reconciliation process was completed after the Respondent's request for recounting of invalid votes was declined. The Respondent No.1 after dismissal of his application to recount rejected votes approached the Election Commission on 27.5.2014 by filing an application under Section 103 read with Section 103-AA of the ROPA 1976.
13. ' Examining the controversy in this perspective, we do not see any reason to disagree with the contention of Mr. Naek that Section 103-AA does not envisage recounting of votes but at the same time it cannot be ignored that Section 103-B empowers the Election Commission to review any order of the Returning Officer including rejection of ballot papers. Perusal of Section 39 of the Act, 1976 reflects that it details the consolidation process of the election results, and Section 6(a) thereof empowers the Returning Officer to recount the ballot papers upon the request of or on challenge in writing made by a contesting candidate or his polling agent, if the returning officer is satisfied that the request or challenge is reasonable. Likewise, Clause (b) of subsection (6) provides for recounting if so directed by the Commission, meaning thereby that recounting before consolidation of result could be undertaken by the Returning Officer while exercising powers under section 39(6)(a) or on the direction of the Election Commission as provided under section 39(6)
14. (b). Against the order of Returning Officer under Section 39(6)(a) remedy by way of review before the Election Commission has been provided by Section 103(b) of Act, 1976 by laying down that the Commission may review an order passed by an officer under Act of 1976 or the rules including rejection of a ballot paper, therefore, to say that the Commission has no power to direct recounting or to review an order of the returning officer directing c recounting of rejected votes or otherwise does not appear to be in consonance with law.
15. ' Coming to the second limb of Mr. Naek argument that once the Petitioner was notified as returned candidate the Election Commission had no power to direct recounting of the rejected votes by exercising powers under Section 103(b) of Act 1976. In our opinion this view would render Section 103 B which empowers the Election Commission to review an order passed by an officer under the ROPA Act or the Rules including rejection of ballot papers as redundant. On the other hand, Section 103B of the Act 1976 neither contains a bar vis-a-vis time period nor any provision could be pointed out which restricts the Election Commission from exercising its power under Section 103B of the Act 1976 after a person is notified as returned candidate. The suggestive interpretation of Mr. Naek as already observed would in fact render the provision of Section 103B of the Act 1976 as a redundant.
16. For instance in the instant case the request of the Respondent for recounting the rejected votes was declined by the returning officer on 07.05.2014, whereafter reconciliation process was completed and the Petitioner was notified as returned candidate on 09.05.2014 and it cannot be assumed that such remedy is to be exercised in one day which would render the remedy as illusory. Additionally even if the remedy would have been availed before the petitioner could be notified as returned candidate, the proceedings under Section 103-B would have taken place after the petitioner would have been notified as returned candidate. Moreover, the time limit provided under Section 103 AA(2) is only for the purposes of Section 103 AA(1) restricting the time limit within which the Election Commission could address grave illegalities or violation of provision of Act 1976 within 60 days after a person is notified as returned candidate and not where power under Section 103(b) are exercised by the Commission.
17. ' At the most while applying rule of prudence one could apply the time limit of 60 days provided under Section 103AA(2) to the Election Commission of Pakistan for ensuring corrective measures as a time frame for exercising powers under Section 103-B as well. In the instant case petitioner was notified as returned candidate on 09.05.2014, whereas the impugned order directing recounting of rejected votes was directed on 20.06.2014 well within the time limits of 60 days.
18. ' In view of what has been discussed above, we find that this ID petition being meritless and, therefore, dismiss the same.