MUHAMMAD FAHEEM WALI, J.---Petitioner through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has sought the following relief: It is therefore, humbly prayed that on acceptance of the instant petition the impugned order dated 13.01.2022 passed by Election Commission may kindly be declared null and void and may kindly be dismissed the petition filed by respondent No.1 for recounting of the votes or any other remedy. The Court may deems fit in the interest of petitioner.
2. Facts of the case, as gathered from record, are that the petitioner and respondent No.1 with other candidates participated and contested the Local Government Elections for the General Seat from Village Council No.35, Saggu Shumali, District D.I. Khan. Consolidated statement of the results of the Count vide Form XX and Final Consolidated Result vide Form XXI were issued on 24.12.2021 by the Returning Officer. The respondent No.1 filed a petition for reconsidering and recounting of the polled votes for General Seat of Sagu Shumali. The Elections Commission of Pakistan vide order dated 13.01.2022 allowed the petition and directed the Returning Officer concerned to carry out the recounting of votes in the presence of all contesting candidates. Aggrieved of the order dated 13.01.2022 of the Election Commission, petitioner preferred this petition seeking the aforesaid relief.
3. Arguments heard and record gone through.
4. The petitioner is a returned candidate against General Seat and he has called in question the vires of order dated 13.01.2022 of the Election Commission of Pakistan (the Commission) whereby directions have been issued to the Returning Officer to recount the votes of the Village Council No.35 Sagu Shumali, Tehsil Paharpur, district D.I. Khan. According to petitioner, after issuance of final consolidated results vide Form XX and XXI, the Commission was having no jurisdiction to pass the impugned order whereas, according to respondent No.1 the Commission was having the powers to issue such directions and also that the order of Commission was amenable to the jurisdiction of august Supreme Court of Pakistan in view of the sub-rule (5) of Rule 9 of the Khyber Pakhtunkhwa Local Councils (Conduct of Election) Rules 2021 (the Rules-2021), and hence, cannot be challenged by filing of petition under Article 199 of the Constitution of Pakistan. Now, moot questions before us are: a. Whether impugned order is amenable to writ jurisdiction of this Court? b. Whether the Election Commission of Pakistan was having the powers to issue direction for recounting of votes vide impugned order?
5. In order to resolve the objection of learned counsel for respondent No.1 as to the jurisdiction of this Court in view of the Rule 9(5) of the Rules, 2021; a plain reading of the Rule 9 ibid reveals that it confers powers upon the Commission to declare a poll void 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 the K.P. Local Govt. Act, 2013, Elections Act, 2017 and the Rules-2021, as have materially affected the result of the poll at one or more polling stations or in the whole constituency or council 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 by-elections. Similarly, sub-rule
(5) of A the Rule 9 of Rules-2021 provides the remedy of appeal before the Supreme Court of Pakistan to a person aggrieved by a declaration of the Commission under this rule. However, these provisions do not portray any power of the Commission to issue direction for recounting of votes rather it only deal with declaration of a poll void. Admittedly, in this case, the poll has not been declared void by the Commission rather the impugned order pertains to the recounting of votes, which is not the mandate of Rule 9(1) therefore, provisions of sub-rule (5) of Rule 9 ibid are absolutely inapplicable to the case. Therefore, this Court has the jurisdiction to entertain and adjudicate upon the matter in issue by dint of the provisions of Article 199 of the Constitution.
6. Now coming to the second question, which is in-fact the actual controversy between the parties.
7. As discussed above, Rule 9 of the Rules-2021 pertains to the powers of Commission to declare a poll void which are inapplicable to the facts and circumstances of the case. Rule 8 pertains to the powers of commission to ensure fair election and the same reads as under:
8. Power of the Commission to ensure fair election.---Save as otherwise provided, the Commission may
(a) stop the polls at one or more polling stations at any stage of the election if it is convinced that it shall not be able to ensure the conduct of the election justly, fairly and in accordance with law due to large scale malpractices, including coercion, intimidation and pressures, prevailing at the election;
(b) review an order passed by an officer under the Act or these rules, including rejection of a ballot paper; and
(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 the Act, Elections Act and these rules.
8. The above extracted provision makes it clear that the rule encompasses powers of election commission during the poll, and it starts with the words "Save as otherwise provided, the Commission may" which indicates that provisions of this rule are subject to the other stipulations and conditions as provided in the Rules and same cannot be taken in isolation to the other provisions of law governing elections.
9. According to sub-rule (5) of the Rule 47 of the Rules, 2021 the Returning Officer shall not recount the valid ballot papers in respect of any polling station unless:-
(a) the count by the Presiding Officer is challenged before the commencement of proceedings in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or
(b) he is directed to do so by the Commission: Provided that the recount shall be made by the Returning Officer only once.
10. However, sub-rule (5) of Rule 47 is followed by sub-rule (6) which provides that the Returning Officer shall furnish original copies of 'Consolidated statement of the results of the count furnished by the Presiding Officers' on Form-XX and 'Final Consolidated Result' on Form-XXI to the Commission. Hence, the exercise of recounting of ballot papers is a phenomenon which has to be completed before issuance of Form XX and XXI, and after issuing such forms under sub-rule (6) a Returning Officer or the Commission cannot revert back to sub-rule (5).
11. Apart from above, in case of any controversy or explanation thereof, the provisions of Elections Act, 2017 are fully applicable in the matters of Local Council Elections as provides under Rule 2 of the rules-2021 which reads as:
2. Application of Elections Act, 2017.---In these rules, if no specific provision or procedure is provided for election to local government under the Act, it shall be dealt in the same manner as provided in the Elections Act and the rules made there under.
12. Thus, in order to make further understandings as to whether the recounting can be done after consolidation of Results vide form XX and XXI, or not, the provisions of Section 95(5) of the Elections Act, 2017 are definite, explicit and not open to any other interpretation but the one that returning officer can recount the ballot papers only once and that too before commencement of the consolidation proceedings. Subsection (5) of the Section 95 is reproduced hereunder for ready reference:
95. Consolidation of results.-(1)--- (2)--- (3)--- (4)---
(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 recount shall be made by the Returning Officer only once.
13. In view of the above extracted provision of Section 95(5) of the Elections Act, 2017, after completion of consolidation proceedings, the Commission as well as Returning Officer, both had become functus officio to order for recount or recount ballot papers. Hence, the answer of second question is surely in negative. l4. In view of the above discussion, we admit and allow the instant writ petition and consequently set aside the order dated 13.01.2021 passed by the Election Commission of Pakistan. However, the respondent No. 1 is at liberty to call in question the election of returned candidate by filing Election Petition, if so desired, in accordance with law.