This order shall also decide Intra-Court Appeals No, 228220 of 2018, 228390 of 2018 and 228382 of 2018
2. At the threshold of the arguments, a preliminary objection regarding the maintainability of this Intra Court Appeal has been raised by the respondents' counsel in view of the availability of the power of review with the Election Commission contained in section 8-B of the Elections Act, 2017 (the Elections Act). Arguments on the maintainability of the appeal were thus addressed by both the sides.
3. This appeal has emanated from order passed by learned Single Judge in Chambers allowing the writ petition filed by respondent No, 5 and directing the Returning Officer to hold recounting of the ballot papers.
4. Section, 8(b) of the Elections. Act reads as under:
8. Power of Commission to ensure fair election.---Save as otherwise provided, the Commission may--
(a) ........................................
(b)review an order passed by an officer under this Act or the Rules, including rejection of a ballot paper; and
(c) .......................................
5. The remedy of Intra Court Appeal is provided in section 3 (2) of the Law Reforms Ordinance, 1972, which reads as under: An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an Order made under sub paragraph (i) of paragraph (b) of that clause: Provided that the appeal referred to in this subsection shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable provided for at least one appeal or one revision or one review to any Court, Tribunal or authorities against the original order. (Emphasis Supplied).
6. Section 3(2) of the Law Reforms Ordinance, 1972 has been interpreted by the Hon'ble Supreme Court in judgment reported as Kareem Bibi v. Hussain Bakhsh PLD 1984 SC 344 and by virtue of the interpretation laid down in the said judgment, it is accepted by all the sides that the availability of a review shall ipso facto make the present appeal as not maintainable.
7. Mr. Shahzad Shaukat Advocate learned counsel for the appellant in I.C.A. No, 228220 of 2018 as well as Muhammad Sohail Dar Advocate for appellant in present ICA led the arguments to demonstrate that section 3(2) of the Law, Reforms Ordinance, 1972 had no application to the appeals being decided through this order. It was argued that section 95(5) of the Elections Act envisaged automatic recount of ballot papers once the conditions prescribed therein were satisfied and as such no order was required to be passed by the Returning Officer. It was accordingly submitted that since section 95(5) of the Elections Act did not postulate passing of any order, the mischief of the proviso to section 3(2) of the Law Reforms Ordinance, 1972 was not attracted to the Intra Court Appeals which were maintainable. It was furthermore submitted that the expression 'officer' mentioned in section 8(b) was not a defined term whereas the Returning Officer was included in the definition of "election official" contained in section 2(xviii) of the Elections Act, the contention being that the remedy of review against the order of Returning Officer made under section 95(5) was not available. Mr. Sohail Dar Advocate particularly referred to the judgment reported as Muhammad Mamoon Tarar v. Election Commission of Pakistan and others 2016 CLC 1708 to contend that the power of review granted by section 8(b) of the Elections Act was administrative in nature. The arguments of Mr. Shahzad Shaukat Advocate and Mr. Muhammad Sohail Dar Advocate were adopted by the other learned - counsel in the connected appeals.
8. Learned counsel for the respondents, on the other hand, opposed the stance taken by learned counsel for the appellants by submitting that an order under section 95(5) of the Elections Act was necessarily required to be passed by the Returning Officer and that in all the appeals orders were in fact passed. It was furthermore submitted that the remedy of review was available with the Election Commission under section 8(b) of the Elections Act and as such the intra court appeals were not maintainable.
9. The contention that the word 'officer' as used in section 8(b) of the Elections Act has not been defined has no significance in our considered opinion. Section 8(b) confers wide powers on the Election Commission to review any order passed by an 'officer' under the Elections Act or the Rules framed thereunder. The orders visualized by the text of section 8(b) of the Elections Act also include an order for rejection of a ballot paper, which is the sole prerogative of the Returning Officer in terms of section 90 read with section 95 of the Elections Act. There is thus no doubt that the officer mentioned in section 8(b) also includes a Returning Officer exercising powers for recounting of votes under section 95(5) of the Elections Act.
10. The next contention that section 95(5) of the Elections Act does not require passing of an order for recounting of votes once the conditions- mentioned therein have been met too has no force.
Section 95(5) of the Elections Act reads as under:
(5) Before commencement of the consolidation proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made by a contesting candidate or his election agent and the margin of victory is less than five percent of the total votes polled, in the constituency or ten thousand votes, whichever, is less, or the Returning Officer considers such request as not unreasonable: Provided that the recount shall be made by the Returning Officer only once.
While arguing the matter on merits, it was contended that the Returning Officer is not required to order recounting of ballot papers of all the polling stations of constituency rather the loosing candidate is obliged to pinpoint specific polling stations where recounting of ballot papers is required. Prima facie, this argument looks attractive and has force in it if one carefully reads section 95(5) which provision clearly spells out that the Returning Officer shall recount ballot papers of one or more polling stations. Be that as it may, implicit in this argument is the recognition of the fact that the Returning Officer while passing order on an application of a losing candidate, which is a mandatory requirement for putting into motion the process for recounting of votes, has to apply his mind. In fact, in all the cases before us, the loosing candidates made applications for recounting of votes without specifying the polling stations meaning thereby that request was made for recounting of the ballot papers in all the polling stations of the constituency. It does not appeal to reason that a candidate would wish to seek recounting of votes even of those polling stations where he has won. It is for this reason that a candidate must specify the polling stations in his/her application on which recounting of ballot paper is required to be undertaken.
11.Although it was argued that the last part of section 95(5) [or the Returning Officer considers such request as not unreasonable] is disjunctive and must be read separately from the rest of the provision, we are not prepared to accept this plea. There are a number of facets of section 95(5) which ought to be taken note of. The process for recounting of ballot papers is neither mechanical nor automatic rather it can only be triggered by an application of a contesting candidate when the margin of victory is less than 5 percent of the total votes polled or ten thousand votes, whichever is less. This application throwing the challenge to the interim result must be made before the commencement of the consolidation proceedings. Again, this provision nowhere stipulates: that the recounting must encompass the ballot papers of all the polling stations of the constituency.
The decision to recount ballot papers of one or more polling stations rests with the Returning Officer, which decision is required to be made in view of the contents of the challenge made by the applying candidate. It is in this context that the last part of section 95(5) becomes central to the interpretation of the earlier part and must necessarily be construed to be dealing with a situation where a candidate unnecessarily requires recounting of votes of polling stations where he has won. In the circumstances, it cannot be held that section 95(5) does not visualize passing of an order by application of independent mind by the Returning Officer.
12.Rule 78(b) of the Punjab Local Government (Conduct of Elections) Rules, 2013, which is a provision pari materia to section 8(b) of the Elections Act, came for interpretation before a learned Division Bench of this Court in the case of Muhammad Mamoon Tarar v. Election Commission of Pakistan and others 2016 CLC 1708, amongst others, in relation to the objection of maintainability of the Intra-Court Appeal. The learned Division Bench of this Court held the power of review vesting in the Election Commission by virtue of Rule 78(b) to be executive in nature enabling it to organize and conduct Local Government elections. Accordingly, the Intra-Court Appeal .was held to be maintainable. The said judgment was challenged before the Hon'ble Supreme Court through Civil Petitions Nos, 3756 and 5757 of 2015 titled Afzal Hussain Tarar and others v. Election Commission of Pakistan and others. The opinion of learned Division Bench of this Court regarding the maintainability of the Intra Court Appeal did not find favour with the Hon'ble Supreme Court. The relevant portion of the order passed by the Hon'ble Supreme Court reads as under: In the contest of above argument, the learned counsel for the petitioners has placed reliance on the case reported as Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344).
Confronted with the above, learned counsel for the respondents by relying upon the judgments reported as Bartha Ram v. Lal Mohar Lal Bhool and another (1995 SCMR 784) and Dr. Raja Aamer Zaman v. Qamar Ayub Khan and others (2018 SCMR 1303) has argued that the provisions of the Rule 78 supra and as per such law the provisions of section 103-AA supra cannot be invoked thus the remedy of review under Rule 78 ibid shall also not be available to the respondents, thus the ICA filed by them would not be hit by the proviso to section 3 of the Law Reforms Act, 1972. Learned counsel for the respondents after making this point concedes that he has no objection, if the impugned judgment passed in ICA is set aside and the respondents would avail their remedy of challenging the order passed by the learned Single Judge-inChambers before this Court by filing appropriate proceedings. Accordingly, these petitions are converted into appeals and allowed and the impugned judgment of the learned High Court passed by the Division Bench is set aside.
(Emphasis Supplied)
It is thus clear that the law laid down by the learned Division Bench of this Court in the case of Muhammad Mamoon Tarar v. Elation Commission of Pakistan and others 2016 CLC 1708 holding the power of review contained in Rule 78(b) to be administrative in nature and further holding the Intra Court Appeal to be not barred is no longer valid.
13. The powers conferred on the Election Commission by virtue of sections 4, 5, 8, 9 and 10 of the Elections Act are quite wide ranging in their scope and intent. A combined reading of the aforementioned provisions leaves no room for doubt that the Election Commission has been conferred the power to review the order passed by the Returning Officer under section 95(5) of the Elections Act. In view of the availability of remedy of review with, the Election Commission, the present Intra Court Appeal as well as the connected appeals are not maintainable by virtue of the proviso to section 3(2) of the Law Reforms Ordinance, 1972. We, therefore, hold accordingly.
14. In the circumstances, this Intra Court Appeal as well as the I connected appeal are dismissed being not maintainable.