SHAHID JAMIL KHAN, J. This petition challenges Election Commission of Pakistan ("Election Commission")'s order dated 15.07.2022, dismissing petitioner's application against a verbal instruction from Election Commission to Polling Officers that a Polling Agent to be appointed by a candidate under section 77 of Elections Act, 2017 ("Act of 2017") has to be a voter of the constituency.
2. During pendency of the application, Writ Petition No.44244 of 2022 was filed by the petitioner, which was disposed of with following direction and decision. Operative part of order dated 15.07.2022 is reproduced hereunder: "3. Since, the matter is before the Election Commission, which is competent to decide on the issue, therefore, this Court observes judicial restraint. However, it is observed that verbal instructions, on an issue not expressly dealt with in relevant law, can neither be given by Election Commission nor can be enforced, by the Returning Officer or any other agency deputed at polling station.
4. The Election Commission is directed to decide the application, expeditiously, enabling the petitioner to seek remedy in case of any adverse order."
[emphasis supplied] The issue regarding appointment of Polling Agent was pending before the Election Commission through another application from Khyber Pakhtunkhawa as well, which is also decided through another even dated order.
The Election Commission contacted the petitioner and her counsel telephonically in pursuance of the direction by this Court. On receiving instructions to decide the application on the arguments already advanced on the application from Khyber Pakhtunkhawa, the impugned decision has been passed. Operative part of which is reproduced hereunder: - "2. The order of the worthy Lahore High Court in Writ Petition No.44244/2022 filed by petitioner Dr. Yasmin Rashid was received via Whatsapp from the Provincial Election Commissioner, Punjab. The worthy High Court has 'observed that the Election Commission is competent to decide the issue, therefore, this Court observes Judicial restraint. The worthy High Court has further observed that verbal instructions, on an issue not expressly dealt with in relevant law, can neither be given by the Election Commission nor can be enforced by the Returning Officer or any other agency deputed at the polling station. The worthy High Court has directed that the application of petitioner Dr. Yasmin Rashid be decided expeditiously enabling the petitioner to seek remedy in case of any adverse order.
3. The application of petitioner Dr. Yasmin Rashid was already in process, however, on receipt of the order passed by the Lahore High Court, Lahore, she was contacted by the Deputy Director (Law), Election Commission of Pakistan via her cell No. 0300-8444009 and was requested to enter appearance in person or through her counsel. According to the Deputy Director (Law), the petitioner informed that she has instructed her counsel Mr. Ali Bukhari, Advocate to adopt the arguments advanced by Mr. Babar Awan, ASC on the application of petitioner Mr. Omar Ayub Khan which was already fixed for hearing before the Commission today i.e. 153.2022. The Deputy Director
(Law) further informed that Mr. Ali Bukhari, ASC was also contracted via his cell No.0300-9555015.
The Deputy Director (Law) informed that counsel for Yasmin Rashid through phone call and voice note informed that he would adopt the arguments of Mr. Babar Awan, ASC in application filed by Mr. Omar Ayub Khan.
4. For detailed reasons recorded in the similar matter in case No. F. 23(231)/2022-Law filed by Mr. Omar Ayub Khan, the Commission has instructed all the Returning and Presiding Officers to ensure that the polling agents shall be the voter in the constituency concerned. The same order shall be read in the instant application."
The reasons given in parallel even dated order and replied upon for decision in the impugned order are also reproduced:- "8. The Election Commission is a constitutional body constituted under Article 218 (2) of the Constitution of Islamic Republic of Pakistan "the Constitution". The Election Commission "the Commission" is charged with the duty to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against as envisaged in Article 218(3) of the Constitution. It is settled principle of interpretation of statutes that the statutes shall be read as a whole and no provision shall be read in isolation to place correct construction on any provision of the statute. Therefore, section 77 of the Act shall not be read in isolation. The section 77 is reproduced for ease of reference:
77. Polling agent.--(1) The contesting candidate or his election agent may, before the commencement of or during the poll, appoint for each polling station as many polling agents as may be prescribed and shall give notice in writing to the Presiding Officer communicating the appointment.
(2) The appointment of a polling agent under subsection (1) may at any time be revoked by the candidate or his election agent and, when it is so revoked or if the polling agent dies, another person may be appointed by the candidate or his election agent as a polling agent and a notice of such appointment shall be given to the Presiding Officer."
In order to understand the intention of the legislature, section 77 is required to be read with section 76 of the Act. According to section 76 of the Act, a candidate may appoint a voter in the constituency as his election agent and shall send to the Returning Officer a notice in writing of the appointment containing the name, father's name and address of the election agent. The section 76 is reproduced for herein under: "76. Election agent.--(1) candidate may appoint a voter in the constituency as his election agent and shall send to the Returning Officer a notice in writing of the appointment containing the name, father's name and address of the election agent.
(2) The appointment of an election agent may, at any time be revoked in writing by the candidate and, when it is so revoked or if the election agent dies, the candidate may appoint another person as his election agent.
(3) Where a candidate has not appointed an election agent, the candidate shall be deemed to be his own election agent and shall, so far as the circumstances permit, be subject to the provisions of this Act both as a candidate and as an election agent."
The rationale behind the appointment of polling agent is to identify the voters at the polling stations, check their particulars in the electoral rolls, safeguard against personation and to ensure the smooth conduct of poll. It is the right of the polling agent to object the identity of a voter and challenge it in terms of section 86 of the Act. In case, the nomination of polling agents is allowed from outside the constituency the political parties, contesting candidates, election agents may bring polling agents from other constituencies, districts and provinces creating a number of complications. The nomination of polling agents from outside the constituency may create issues qua the identification of voters, challenging of voters on any ground including personation. It is the fundamental duty of the Commission to ensure free, fair and transparent election, in terms of Article 218(3) of the Constitution. The section 8 of Elections Act also empowers the Commission to ensure fair election. Section 8 is reproduced for the sake of facility as under: "8. Power of Commission to ensure fair election.--Save as otherwise provided, the Commission may--
(a) ........
(b) ..........
(c)issue such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the Rules."
3. Learned counsel for the petitioner has assailed, mainly, the reason that Polling Agent's role is to identify the voters at Polling stations. He has read various provisions i.e. sections 78(4)(b) and (c), 82(b), 84(1), (2) and (6), 86(1) and 90(1), (2), (3), (12), (13) and (16) from the Act of 2017 along with section 77 and Rule 58 of the Election Rules, 2017 to submit that Omission in section 77 by the Legislator that Polling Agent should be a voter of the same constituency is intentional and that this condition is stipulated only for an Election Agent under section 76. He explained that in remote and less developed areas, no person comes forward to be a Polling Agent against an influential person contesting election.
Referring to the role prescribed in the above referred Sections, learned counsel submitted that identification of the voters is primary responsibility of Polling Officer for which exhaustive procedure has been provided. Referring to Section 86, he submitted that role of Polling Agent to challenge issuance' of ballot paper is as precautionary measure, where he comes across any defect in the verification process of the voter, while issuing ballot paper and not to identify the voters as personally known.
4. Learned counsel for the respondents (Election Commission of Pakistan) besides supporting the interpretation in the impugned order has read section 4(3) of the Act of 2017 to submit that Election Commission has power to issue direction, to carry out the purpose of the Act even on a point for which sufficient provision of law does not exist. It is, however, not denied that Notification dated 15.07.2022 is issued, first time, on the appointment of Polling Agent, imposing condition that he should be a voter of the same constituency. On a specific question, whether this condition has ever been implemented in previous elections, learned counsel could not reply with certainty.
Further submitted that collective reading of all the provisions of the Act of 2017 shows that identification of voter is one of the purposes of Polling gent besides others.
In response to the petitioners' side argument regarding fear of influential candidate, learned counsel submitted that appointment of a Polling Agent from outside the constituency would be a threat to peaceful and smooth conduct of election. The person so appointed, having no stake in the constituency, could disturb the whole election process in a Polling Station, he added.
Learned Advocate General, also entered appearance, and asserted to have a credible information that through Polling Agents, from outside the constituency, election is planned to be stopped in few constituencies.
5. Heard. Record perused.
6. Section 4(3) and Notification dated 15.07.2022 are reproduced:-
4. Power to issue directions.-- (1) ...
(2) .....
(3> Anything required to be done for carrying out the purposes of 'this 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.
Dated: the 15th July 2022 To All Contesting Candidates, PP-140, Sheikhupura-VI, Sheikhupura.
Subject:- Appointment of Polling Agents.
Please refer to an Order passed by the Hon'ble Election Commission of Pakistan of the date wherein the Hon'ble Election Commission has been pleased to direct that the polling agent shall be a voter in the constituency: hence no candidate/ election agent shall appoint any polling agent from outside the constituency, he must be a voter of the constituency too."
7. Issuance of the impugned Notification dated 15.07.2022 has, per se, established the concern brought before this Court through earlier petition as well as this petition that Polling Officers were acting on verbal instructions from the Election Commission. The Court has already declared in the earlier decision that verbal instructions, being detrimental to fair and transparent process can neither be issued nor be acted upon by the Polling Officers, staff and all the agencies deputed at the polling stations. Such instructions even having force of law would lead to uncertainty and chaos, which shall certainly defy the Constitutional command of conducting fair and free election under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution").
The direction under section 4(3) of the Act of 2017 cannot be taken as an exception. Besides having comprehensive powers under the Constitution and dominant duty of conducting free, fair and transparent election, the Election Commission has to act under the law. The instructions under section 4(3) should be issued, if circumstances so requires, at the time of Election Schedule or well before the date of election so that none of the parties is taken by surprise while making its preparations for the polling day.
8. This Court once again observes judicial restraint from interpreting the provisions referred by both the sides and give any decision on the interpretations made by Election Commission in impugned order. For any anomaly on a matter, while collectively reading different provisions, the Legislator has power to clarify through Rule making and the Election Commission, invoking its powers under section 3 of the Act of 2017, can also address an issue not expressly provided within the provisions of relevant law. Nevertheless such power cannot be exercised in a way that one of the candidates is placed at a disadvantageous position, having been taken by surprise. Reiterating the decision in Writ Petition No.44244 of 2022 that Polling Officer and his staff deputed at Polling stations cannot act on verbal instructions, it is also held that issuance of the Notification dated 15.07.2022, few days before the polling day, has rendered the level playing field uneven, for a candidate who has already worked out on the Polling Agents, therefore, it is suspended for the election to be conducted tomorrow (17.07.2022) in twenty constituencies of the Province.
9: On Court's question, Mr. Ahmad Awais, Senior Member of petitioners' party, after taking instructions, has undertaken on his political party's behalf that peace and tranquility shall be maintained if administration is directed to remain within the sphere of law and implement the judgment by Apex Court in letter and spirit.
The Advocate General, present in Court, is directed to ensure that directions by the Apex Court and this Court, to Police and Civil Administration, shall be followed and complied with in letter and spirit.
The administration shall respond to Polling Officer's direction, general/ special powers, if any attempt or act of disrupting the election process is brought to their notice.
Any instance of breach of undertaking, by petitioner's political party, shall also be taken--as contempt of Court, if formally brought before this Court.
In case the Polling Agent is from outside the constituency and not voter, his complete identification and particulars shall be provided to the Presiding Officer along with nomination, if so required by him.
The petition is allowed to the extent and in the manner noted above.