UMAR ATA BANDIAL, J.---This appeal has been filed under section 9(5) of the Elections Act, 2017 ("2017 Act") against the short order of the Election Commission of Pakistan ("ECP") dated 25.02.2021.
By that order the bye-election in NA-75, Sialkot-IV ("NA-75") held on 19.02.2021 was declared null and void and a fresh election was directed to be held in the whole constituency on 18.03.2021. This date was later extended to 10.04.2021 by the ECP at the request of the Home Department, Punjab.
The short order was subsequently followed by detailed reasons, issued by the ECP, that were released on 08.03.2021. The appellant has challenged both the short order and the detailed reasons before us ("impugned judgment"). -
2. The relevant facts are that following the death of the incumbent Member of the National Assembly representing NA-75, the ECP on 21.12.2020 announced the schedule for bye-election in the said constituency on 19.02.2021. In the election nine persons, including the appellant [holding the Pakistan Tehreck Insaf ("PTI") ticket] and respondent No.1 [bearing the Pakistan Muslim League Nawaz ("PML-N") ticket], formed the pool of contesting candidates. The bye-election in NA-75 took place on the scheduled date, namely, 19.02.2021 but incidents of violence marred the day with around 40 (out of a total 360) Polling Stations ("PS") being affected by gunfire and clashes between the supporters and workers of PML-N and PTI. In one incident, two persons also tragically lost their lives at PS-229.
3. However, apart from the said violence which can occur in tensely contested elections, the electoral process in the constituency was also undermined by the unprecedented disappearance of 20 Presiding Officers ("PO") after the voting at their PS had ended and counting of votes had been completed. Initially the controversy before us hovered around 23 missing POs. However, subsequently on the disclosure of further facts it centred on 20 such POs. For convenience, this judgment refers to the latter figure of '20' when discussing the missing POs. The list of the PS whose POs were untraceable during the night between 19.02.2021 and 20.02.2021 is provided below: PS No.PS Name 2 Government Boys Primary School Hanjra (Combine)
3 Government Girls High School Husajaja (Combine)
6 Government Girls Elementary School Shamir Pur (Combine)
7 Government Boys Primary School Kotli Tarar (Combine)
8 Government Girls Primary School Bhelo Mattu (Combine)
9 Government Girls High School Qila Kalar Wala (Male)
11 Government Shahzaib Shaheed High School Qila Kalar Wala (Combine)
22 Government Boys High School Ghatailian (Male)
23 Government Community Model School Ghatailian (Female)
24 Government Boys Elementary School Uddo Fatah (Male).
26 Government Boys Primary School Jhangi Shah Khaki (Combine)
45 Government Girls Primary School Faqiranwali (Combine)
47 Government Boys Elementary School Kassowala (Male)
49 Government Boys Primary School Sangar Wali (Combine)
50 Government Boys Primary School Mand (Combine)
51 Government Girls Primary School Gagar Wali (Combine)
90 Government Girls High School Siran Wali (Combine)
91 Government Girls High School Siran Wali (Combine)
92 Government Islamia High School Siran Wali (Combine)
140 Government Boys Primary School Mokhal (Female)
4. According to Section 13(2) of the 20.17 Act, each PO had to electronically report the election result at his/her PS to the Returning Officer ("RO") on the prescribed Form-45 and thereafter as directed by Section 90(18) of the 2017 Act to handover the original of the said Form to the RO. However, due to the disappearance of the 20 POs, the RO of NA-75 did not receive the voting results of their PS in time. In this scenario respondent No.1 filed a complaint before the RO at about-03:35 am on 20.02.2021, the next day, seeking a re-poll in the said 20 PS. Some two hours later at 05:15 am or so on 20.02.2021 the respondent No.1 filed a second application. This time before the ECP, requesting it to withhold the results of NA-75 till the circumstances surrounding the missing 20 POs were investigated through geofencing and a re-poll was held in these 20 PS and the 36 other PS in Daska city where polling had remained suspended.
5. The ECP partially accepted the request of respondent No.1 and on 20.02.2021 directed that the result of NA-75 be withheld till further orders. In the meantime, the ECP obtained reports regarding commission of malpractices and violations of the 2017 Act from the RO and District RO ("DRO"). Both confirmed that the electoral process was disturbed by violence, albeit that the same was restricted to a limited number of PS, and that the 20 POs had gone missing and could not be contacted till they reappeared at the RO's office on the morning of 20.02.2021. The next day the report of the RO to the ECP, submitted on 2I.O2.2021, stated the following: "5. ... The replies of almost all the Presiding' Officers were stereo-type that they were able to complete the counting process by 10:00 to 10:30 PM and started back journey to the office of Returning Officer on the transport provided by the Election Commission and in the escort of Police but due to fog, they reached the office of Returning Officer at about 04:30 AM and most of them stated that their phone batteries were low and they were having no charges in response to the question that they were supposed to send snapshots of the Result of the Count through whatsapp but they did not do the same... During question answer session the Presiding Officer[s] were found puzzled and terrified. The[y] coined lame excuses that transport gone off road, WhatsApp not functioning etc."
6. Taking cognisance of the application submitted by respondent No.1 and the report of the RO, the ECP issued notices to the appellant, the respondent No.1, the RO and the DRO for a preliminary hearing to verify the results of the 20 PS whose POs had gone missing. This hearing continued for two days, 23.02.2021 and 25.02.2021, during which learned counsel for the appellant and the respondent No.1 made their submissions before a five member bench of the ECP presided over by its Chairman. The RO and DRO were also examined. At the end of the hearing on 25.02.2021 the ECP passed the short order directing a fresh election in the whole constituency. Later the detailed reasons were issued on 08.03'.2021.
7. Aggrieved by the impugned judgment, the appellant preferred an appeal to this Court praying for a direction to the ECP that it should 'declare and notify the result of the election in accordance with law.' However, during the course of arguments learned counsel for the appellant modified his prayer and stated that his client would be satisfied if instead of a fresh election only a partial re- poll is held in the 20 PS whose POs went missing. Accordingly, the learned counsel for the parties formulated and addressed their submissions on the issue of whether in the facts and circumstances of the case should there have been an order for partial re-poll or a fresh election.
8. The main argument of learned counsel for the appellant was that although the bye-election in NA-75 was affected by violence and the disappearance of 20 POs, yet with the exception of the occurrence outside PS-229 where two persons were killed on the road during an argument between the supporters of the appellant and respondent No.1, these incidents were neither so serious nor so widespread so as to warrant a re-election in all 360 PS. That in fact according to the reports cited in the detailed reasons, only 60 PS were actually affected by the irregularities (which is roughly around 17% of the total number of PS in the constituency). He also took issue with ECP's conduct of the proceedings arguing that neither any lawful procedure of inquiry and adjudication was followed nor any reasons were provided for abruptly concluding the matter through a hasty short order passed at the end of the second hearing. He stated that even the most egregious violation, namely, the disappearance of the 20 POs was not inquired into by the ECP. At the bare minimum that violation should have been addressed to ensure the prevention of such incidents in future elections. In response, the learned counsel for respondent No.1 supported the impugned judgment and argued that the ECP was justified in ordering a fresh election. He cited the disappearance of the 20 POs, the low turnout of voters (less than 35%) in 54 PS (41 of which were in Daska city), and incidents of violence at 40 PS (34 of which were in Daska city) to emphasise the scale and gravity of the wrongs committed during the election. In addition to adopting the arguments of the learned counsel for respondent No.1, the learned counsel for the ECP submitted that on election day the ECP, despite making several requests, received no cooperation from the civil administration and law enforcement agencies to curb the violence contaminating the election process. That the Provincial Government assigned a certain Mr. Zulfiqar Virk, DSP the police duty of Central Circle Incharge, Daska even though the. ECP on public complaint had explicitly prohibited him from being a part of any security arrangement for the election vide order dated 04.02.2021. He concluded by submitting that the indifference of the local civil and police administration to ECP directions and the ensuing unchecked violence were evidence of a tilted playing field in the constituency on election day.
9. We have heard learned counsel for the parties and have carefully scrutinised the material on record. As the primary facts are undisputed, our hearings have focused on whether the objectionable incidents on election day were so serious in their gravity and scale as to justify the impugned judgment for a fresh election rather than a direction for a partial re-poll. Before discussing the merits of the case, it is important to first examine the test laid down in the 2017 Act which has to be satisfied prior to the ECP declaring an election void. The legal criteria for grant of such relief by the ECP can be found in Section 9(1) of the 2017 Act which reads: "9. Power of the Commission to declare a poll void.---(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the 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 an agreement restraining women from casting their votes, it shall make a declaration accordingly and call upon the voters in the concerned polling station or stations or in the whole constituency as the case may be, to recast their votes in the manner provided for bye-elections."
(emphasis supplied)
It may be noticed from the aforenoted provision that in deciding whether to issue a declaration to the effect that a re-poll should be held in a constituency (or in certain PS), the primary question the ECP has to answer is whether 'grave illegalities or violations have materially affected the result of the election in one or more PS or the whole constituency.' Many judgments of this Court have elaborated what the materially affected test entails. A succinct explanation thereof can be found in the judgment reported as 'Muhammad Siddique Baloch v. Jehangir Khan Tareen (PLD 2016 SC 97): "18. ...those violations of the election law that have significant numerical impact on the count of election result would fall within the ambit of Section 70(a) of the ROPA. At the same time, arithmetical precision in determining the number of votes invalidated by delinquent acts committed during the election is not essential and a Tribunal in principle should consider the imperativeness of the law violated and the scale of the violation committed in order to estimate their impact on the result of the election. ...
20. In cases where an estimate of the votes tainted with delinquent conduct can be made, one approach taken by the Court has been to deduct the number of tainted votes from the lead secured by a winning candidate. Where the lead significantly exceeds the number of tainted votes, the adjustment reduces such margin but the winning candidate nevertheless succeeds..."
(emphasis supplied)
10. It becomes clear from the dicta cited above that under the 'materially affected' test, two distinct methods can be utilised by the ECP to determine the validity of an election; namely, either by tallying the numerical count and/or by assessing the gravity and extent of the violation(s) committed. The Jebangir Tareen case (supra) explains the test for the purposes of section 70(a) of the Representation of the People Act, 1976 ("1976 Act") which states the grounds available to the Election Tribunal for declaring the election void as a whole. However, the test is equally applicable to Section 9(1) of the 2017 Act since both provisions are concerned with the meaning of the term 'materially affected.' First, the numerical method which suffices in most cases of election disputes has no application to the present case because the final consolidated result has not yet been compiled. Consequently, it is not known how many votes the rival candidates have secured and therefore who the returned candidate is. Nevertheless, the second method ("second check") is directly relevant because it is concerned not with the number of votes cast but with the nature of the violation and the scale thereof. The matter before us involves two primary allegations of illegalities and violations, namely, the firing and violence at 40 PS and the sudden disappearance of 20 POs. It is on the facts supporting these allegations that we should apply the second check in order to assess the correctness of the impugned judgment passed by the ECP.
11. Although at first instance, the matter may appear simple, it is anything but that. This is because while the Court in the past has decided election disputes on the strength of the second check, most notably in the case of Jam Mashooq Ali v. Shahnawaz Junkjo (1996 SCMR 426), it has never laid down any guidelines/criteria for the ECP or the Election 'Tribunals to follow when faced with cases of such a nature. This could perhaps explain why the ECP in its detailed reasons did not carry out a thorough analysis of how the violent incidents or statutory violations that took place on election day warranted a fresh election in the whole constituency. It referred to various events which in its view justified the decision of a fresh election, namely: a. The breakdown of the law and order situation in the 40 PS in the constituency and the lack of assistance offered by the law enforcement agencies and the civil administration to control the violence; b. The involvement of Mr. Zulfiqar Virk, DSP in the security arrangements on election day despite being specifically prohibited from doing so by the ECP; and c. The disappearance of the 20 POs for several hours in the night-without communicating the election result of their PS to the RO through the prescribed Form-45.
12. Be that as it may, the detailed reasons do not establish a connection between these distinct events and the need to hold a fresh election. It would have been helpful to know which of these events. singly or cumulatively, justified the relief grunted Explaining the inadequacy of a re-poll in only the 60 affected PS to cure the illegalities committed during the election day would also have answered the appellant's plea. This is more so when one reads the first application filed by respondent No.1 before the RO in which she acknowledged that the results of 337 PS had already been compiled. The picture that emerged from the account given by respondent No.1 was that from these 337 PS she had secured 97,588 votes whereas the appellant had obtained 94,541 votes.
Therefore, as far as the data regarding the vast majority of the PS (337/360, 93.6% - these include the PS affected by violence) was concerned, the respondent No.1 was clearly in the lead by 3.047 votes. In such a situation, the appellant's plea for the ECP to simply order a re-poll in. the 20 PS whose POs had disappeared with the election result would appear to have substance.
13. However, before the impugned judgment is assailed for ordering a fresh election in NA-75 it must be understood that the law regarding the second check is still developing. No definite guidelines have been laid down by the Superior Courts in this regard. We must therefore identify the factors that ought to be kept in mind by the ECP and the Election Tribunals when dealing with election disputes with a similar fact pattern. Two such factors have already been identified in the Jehangir Tureen case (supra): the imperativeness of the law violated and the scale of the violation. In the context of the instant case, these two criteria required the ECP to examine: a. Whether the delinquent-conduct contravenes law imposing mandatory obligations for the conduct of honest, just, fair and lawful elections that entail prescribed penal or civil consequences; or b. Whether the extent of the violations is such as to affect the election result at a significant number of PS in the constituency or affects the voters at such PS; or c. Whether the impact of the breach of law on the voters and/or election staff is serious enough to undermine the sanctity and integrity of the election process in the constituency.
There are certain other important factors which may be relevant to determine whether there should be a partial re-poll or a complete re-election: a. Were the supporters of a losing candidate or the latter him/ herself responsible for creating unrest and causing a law and order situation to force a fresh election [ref: Muhammad Nawaz Chandio v. Muhammad Ismail Rahu (2016 SCMR 875) and Behram Khan v. Abdul Hameed Khan Achakzai (PLD 1990 SC 352)]: b. Were election staff themselves involved in violating the election law [ref: JehanRir Tareen case (supra) and Abdul Hafeez Khan v. Muhammad Tahir Khan Loni (1999 SCMR 284)]; c. Who was the direct victim of the breach of law e.g., was the polling staff intimidated and/or polling material damaged [ref: Waheeda Shah v. Election Commission of Pakistan (PLD 2013 Sindh 117)]; d. Was political clout exerted in the candidates' strongholds resulting in abnormal results at different PS [ref: Khalid Hussain Magsi v. Abdul Rahim Rind (2016 SCMR 900)]; and e. Was the violation of law premeditated [ref: Waheeda Shah case (supra)]?
14. In our minds these are the crucial aspects of the election process that ought to be viewed holistically in order to conclusively decide the extent of re-election to be held in a constituency.
Indeed, the application of one or more of the said criteria will depend on the facts of each case.
Therefore, it is not necessary that all election disputes will attract the factors envisaged above. For instance, a particularly grave violation of the law e.g., attacks by a (winning) candidate on the polling staff to cause intimidation and strike fear amongst them will lean strongly in favour of a fresh election. (even if the scale of the assaults is limited in scope). This is because the election machinery may be overawed causing the sabotage of the election process in the constituency as a whole. Nonetheless, it is reiterated that the extent of re-election ordered in a constituency will have to be decided by evaluating the available evidence in light of the criteria set out above.
15. Having explained the essentials of the second check, one can now examine whether in light of the peculiar facts of the case the ECP was justified in ordering a fresh election in NA-75 by the impugned judgment. The test for interfering with the ECP's decisions is well-settled. An articulation of it can be found in Ejaz Ahmed Sandhu v. Election Commission of Pakistan (2018 SCMR 1367): "5. ...The Election Commission is a constitutional body and unless it is shown that the jurisdiction and discretion exercised by it is illegal, mala fide, manifestly arbitrary or unjustifiable its working and decisions should not be interfered with..."
It becomes plain from the dicta cited above that only limited grounds exist for interfering with ECP's decisions, namely, when these involve the exercise of illegal, or mala fide, or manifestly arbitrary or unjustifiable jurisdiction and discretion by the, ECP. The rationale for this is obvious: the ECP is a constitutional body which is empowered by Article 218(3) of the Constitution to ensure that elections are conducted 'honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.' Under the Constitution it has the pre-eminent role of assessing whether an election, has been held in accordance with the command of Article 218(3). In the present case, there were incidents of violence at 40 PS and the law and order situation in general was tense. These conflicts were further compounded by the inaction of the civil administration and law enforcement agencies to curb the disorder and create a conducive environment for voters in NA-75 to exercise their right of franchise. Further, it is accepted by learned counsel for the appellant that the incidents of violence on election day were given extensive coverage by the electronic media. The possibility that such reporting instilled fear in the voters and prevented them from casting their votes in favour of their preferred candidate cannot be discounted. Evidence of apprehension and fear in the voting public is also visible from the low voter turnout (less than 35%) at 54 PS (41 of which were situated in Daska city for reference the populace of Daska city formed around one-third of the total voters in the whole constituency) whereas the general turnout in the bye-election was 46.92%. This indicates that the turnout in the peaceful and compliant PS in NA-75 exceeded 52%.
16. Apart from the clashes that plagued the bye-election in NA-75, we consider the most disquieting fact in the election was the disappearance of the 20 POs. Never has such an episode occurred in a previous election. The disappearance of the 20 POs is therefore truly unprecedented.
Moreover, the situation has become even more dubious because each PO was accompanied by a driver and a police guard in vehicles provided by the ECP. However, no contact could be established with any of these persons for the entire time the POs were missing. This strongly indicates that the mysterious disappearance of the 20 POs was a coordinated act. The RO's report supports this view by its statement that all the POs appeared puzzled and apprehensive and gave stereotypical responses when questioned about their whereabouts. Furthermore, it is now clear that the untraceable 20 POs turned up at the office of the RO at about the same time in the early hours of 20.02.2021 even though they had departed from different PS. The foregoing chain of suspicious events cannot be a mere coincidence but point to a premediated breach of the sanctity and integrity of the election process. In such circumstances when the election process is under threat or attack it is the duty of the ECP under the Constitution to act decisively to prevent the commission of corrupt practices.
17. In the above context, the submission of learned counsel for the appellant that although the disappearance of the 20 POs was deplorable, the re-election should still be confined to the 20 affected PS is misconceived for two reasons Firstly. it downplays the seriousness of the event that transpired. The incident of the 20 missing POs is an attack on the entire election process. Free and fair elections can never be conducted without the constant and vigilant efforts of the polling staff.
At the bare minimum polling staff should have the confidence that in the performance of their duties they will not be harassed, intimidated, kidnapped or pressured by anyone. However, it is apparent from the RO's report of 21,02.2021 that when the 20 POs finally reappeared, they were in a distraught state of mind. Clearly,' their detour had affected their dignity and composure. Such an experience therefore not only undermined the POs who had disappeared but also sent out an insidious message to the remaining polling staff of what may happen to them. Reliance in this regard is placed on the judgment of the Division Bench of the Sindh High Court in the Waheeda Shah case (supra) in which the order of the ECP to hold a fresh election in PS-53, Tando Muhammad Khan cum-Hyrderabad was upheld on account of the petitioner, who was the winning candidate, physically hitting the PO and Assistant PO of a PS in the Provincial Assembly constituency: "59. ...Now. when the 1976 Act is examined as a whole, it is at once clear that the returning officers are the operational linchpin of the electoral exercise. But equally crucial is the role of the presiding officers, assistant presiding officers, etc. who are stationed at the polling stations. Returning officers cannot possibly perform their duties without the full and active performance of duties by the presiding officers, etc., and the tight nexus envisaged between these two tiers of election officials is quite apparent. Together, they are intended to constitute and provide the steel frame (if we may adopt the expression used by Mr. Lloyd George for the Indian Civil Service) for the electoral edifice.
In our view, it is crucial for the entire electoral process, and the holding of elections honestly, justly and fairly, that these election officials are able to perform their duties fearlessly and confidently...
For this, it is of the utmost importance that the person of these officers be regarded as inviolable.
They must have complete confidence that wherever they go and whomever they address, and whoever it is who approaches or even accosts them they will never be subjected to any physical assault or threat to their person. A blow landed on the person of an election official should thus be regarded as nothing less than a blow to the electoral process itself."
(emphasis supplied)
The above-quoted observations were made in the context of the 1976 Act; however, they are equally applicable to the facts of the present case. This is because the 2017 Act also treats polling staff as the linchpin of the electoral process. In our considered view if the ECP had ordered a re-poll for only those 20 PS whose POs had gone missing this would have constituted a failure on its part to appreciate the gravity of the illegality that had occurred.
18. Resultantly, both the gravity and scale of violations that transpired in NA-75 on 19.02.2021 justify the pressing need for holding a fresh election in the whole constituency. The violence at 40 PS, the indifference of civil administration and law enforcement agencies to the prevailing situation in the constituency on election day and the disappearance of the 20 POs all point to an election process that was neither peaceful, free, fair or transparent. In these circumstances, the decision by the ECP sends out a strong and much needed message to all stakeholders in an election that there will be no compromise on the person and dignity of the polling staff. The verdict extends reassurances to polling staff who may be exposed to unpredictable situations in an election so that democracy can continue to flourish in Pakistan. It also signals to both the State functionaries and the delinquents that the consequences of intimidating polling staff and compromising on the purity and integrity of the election process may result in the annulment of the entire election. Reservations that the decision of the ECP may encourage losing candidates to employ similar tactics to disrupt the election process thereby frustrating the wishes of the electorate and forcing the winning candidate to contest a fresh round of elections have been aptly answered in the Waheeda Shah case (supra) as follows: "61. ...The exercise of jurisdiction under section 103AA [of the 1976 Act] is discretionary, and the Supreme Court decision [Behram Khan v. Abdul Hameed Khan Achakzai] serves as a salutary warning to the Commission not to unwittingly become a pawn in the machinations of a losing candidate who is intent on, as it were, snatching some sort of victory from the laws of defeat.
Should a losing candidate make such an attempt, he and his supporters should certainly feel the full force (and if we may say so, fury) of the law, but the poll should not be annulled. But that situation is a far cry from an illegality committed personally by a winning candidate in the manner at hand. If the conclusion sought to be derived by learned counsel from the Supreme Court decision is accepted [that the ECP's order for a fresh election should be set aside because the petitioner had won the bye-election by a big margin] that would, in effect, give a winning candidate leave and license to do whatever he or she may desire secure in the knowledge that the mere factum of victory would force the Commission to draw a veil over any illegality or violation howsoever deserving of condemnation it may be. In our respectful view, this can hardly be an appropriate reading of a Supreme Court decision."
(emphasis supplied)
However, in the instant case the bye-election was closely contested in the 337 PS with only a difference of 3,047 votes separating the respondent No.1 and the appellant, as reported by the respondent No.1 in her application to the RO on 20.02.2021. As such had the final consolidated result been compiled both candidates may have had the reasonable expectation of being declared the returned candidate. Accordingly, for the purposes of determining the extent of re-election in the constituency it is inconsequential as to who perpetrated the illegalities. Therefore, in light of the special facts of this case, we find no illegality, mala fide or unreasonableness in the impugned judgment issued by the ECP.
19. Before parting with this judgment, we would like to make certain observations regarding proceedings commenced by the ECP under section 9 of the 2017 Act. One of the. grievances of learned counsel for the appellant was the slipshod manner in which the ECP conducted its proceedings in the case. Specifically, issue was taken with the unusual haste with which the proceedings were concluded and the fact that no inquiry was held to determine what happened to the 20 POs who went missing. In our opinion, there is merit in learned counsel's submissions because the omission represents a lapse in the transparency of the ECP's proceedings. It is a matter of record that no action whatsoever was taken by the ECP to investigate the disappearance of the 20 POs despite the fact that its power to inquire into controversies has been enlarged under the 2017 Act. Section 9(1) of the Act [reproduced in para 9] now allows the ECP to hold a detailed inquiry into applications/ complaints submitted to it Therefore, it is not limited to conducting only summary probes. However, despite the expansion of its jurisdiction the ECP neither summoned the 20 POs to appear before it and depose what had happened between the late hours of 19.02.2021 (when the POs went missing) and the early hours of 20.02.2021 (when the POs appeared at the RO's office). Nor did the ECP seek their comments on the said subject. We consider this to be a serious lapse of supervision. and vigilance on the part of the ECP, particularly when such an event is unprecedented in the electoral history of Pakistan for having the trappings of being duly organised and coordinated. This is more so when there was no pressing time constraint forcing the ECP to conclude the proceedings immediately. Reliance is placed on Section 9(3) of the 2017 Act: "9. Power of the Commission to declare a poll void.---
(3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may 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 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."
(emphasis supplied)
20. The said provision gives ECP sixty days, from the date of publication of the name of the returned candidate, to dispose of a case pending before it. In the instant case the name of the returned candidate was not notified because the final consolidated result had been withheld. Instead of utilising the (at least) sixty days available to it, the ECP only deliberated over this matter for a total, of two days. No reasons are provided by the ECP in either the short order or the detailed reasons for its hurried approach. At best this haste may be explained by the unique facts of the case. Even the notice period given to the parties summoned was inadequate. The appellant, RO and DRO received the ECP notices only one day prior to the first hearing on 23.02.2021. A perusal of these notices reveals that they were only concerned with the verification of the results of the 20 PS whose POs had gone missing. However, the untraceable POs were neither associated' with the proceedings nor were they examined by the ECP. Nonetheless, during the substantive proceedings the scope of the inquiry was expanded to cover the incidents of firing at the 40 PS, the illegal posting of Mr. Zulfiqar Virk, DSP as Central Circle Incharge, Daska and the poor response of the civil administration and law enforcement agencies to the violence in NA-75. While the ECP has the power to regulate its own procedure [ref: Section 9(4) of the 2017 Act] and its primary duty is owed to the voters of Pakistan and not just the contesting candidates, it was still bound by the principles of natural justice to ensure that the stakeholders and actors in the controversy were given a fair opportunity to present their account and version of the case.
21. In the present, case the procedure adopted by the ECP did not satisfy the basic principles of natural justice. A clear and concise elucidation of these principles can be found in Warid Telecom (Pvt.) Ltd. v. Pakistan Telecommunication Authority (2015 SCMR 338): "13. ...It is a principle of long standing that, whenever adverse action is being contemplated against a person a notice and/or opportunity of hearing is to be given to such person. This principle has now been elevated to the status of a fundamental right with the incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan (pursuant to the Constitution (Eighteenth Amendment) Act, 2010)...
14. That both the requirements of a notice [or] providing an opportunity of a hearing may also be dispensed with in certain type of cases... The Indian Supreme Court in the case of Karnataka Public Service Commission v. B. M. Vijaya Shankar (AIR 1992 Supreme Court 952). stated that, when meeting the requirement of notice and providing an opportunity of hearing will cause "more injustice than justice" or it is not in the "public interest" the same may be withheld..."
(emphasis supplied)
The above-quoted passages reiterate that the concept of natural justice encompasses the twin conditions of prior notice and fair opportunity of hearing, both of which, as stated above, were deficient in this case. But such rights may exceptionally be dispensed with if these will cause 'more injustice than justice' or if the 'public interest' so demands. 1t- is not disputed by either the appellant or the respondent No.1 that the disappearance of the 20 POs was an egregious attack on the sanctity and integrity of the election process which could not be overlooked. There was consequently a compelling 'public interest' in restoring the confidence of the polling staff and the trust of the people of Pakistan in the electoral process. We consider that the direction by the ECP to hold a fresh election in NA-75 attempted to swiftly restore this shaken confidence and trust by condemning in the strongest possible terms the onslaught that was endured by the 20 POs.
Therefore, the above-noted deficiencies in the proceedings conducted by the ECP are condonable.
Its prompt and decisive action in the face of grave illegalities that had been committed in the instant matter was necessary. The severity of the delinquent acts explains the ECP's lapses as being bona fide and not prejudicial to the parties in the case. We are therefore of the opinion that no interference with the impugned judgment is called for. However, for its guidance and record the ECP should undertake an inquiry into the object of, the means used for and the perpetrators behind the disappearance of the 20 POs on the night of the election. The findings may identify the real culprits, who must be brought to justice under the law, whilst also informing the ECP about new forms of corrupt practices to be guarded against.
22. Accordingly, we dismiss this appeal in the terms noted above. The ECP is directed to hold fresh elections in NA-75 as soon as possible so that the voters in the constituency can exercise their right to vote freely and fairly.
Hereinabove are the reasons for our short order of even date which is reproduced below: "For reasons to be recorded later, this appeal is dismissed."