SHAMS MEHMOOD MIRZA, J. The issue whether Election Commission retains any jurisdiction to direct the Returning Officer to recount the votes after consolidation of results has once again cropped up before this Court in this case.
2. The petitioner, who contested the election from PP-59, Gujranwala-I and was declared as the returned candidate, is aggrieved of order dated 18.03.2024 passed by the Election Commission of Pakistan/respondent No.1 on the application filed by his rival candidate i.e. respondent No.3 for assuming jurisdiction for recounting of votes.
3. The petitioner claims that he belongs to Pakistan Tehreek-e-Insaf, the political party which was deprived of its election symbol by the Supreme Court in its decision rendered in the case of Election Commission of Pakistan v. Pakistan Tehreek-e-lnsaf Islamabad PLD 2024 SC 267. This compelled the candidates belonging to Pakistan Tehreek-e-Insaf to contest the general elections 2024 as independent candidates without a common- symbol. The petitioner alleges in paragraph 3 of this petition that the Election Commission by design is converting the election results of the PTI backed independent candidates by allowing applications for recounting of votes filed on behalf of those candidates who lost the election. It is furthermore argued that under the scheme of the Elections Act, 2017 (the Act) after consolidation of results and issuance of Form 47 the Election Commission is not authorized to entertain any application for recounting of votes. Several judgments supporting this proposition have been brought to the notice of this Court including the latest judgment of the Supreme Court in the case of Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997.
4. Respondent No.3 submits that he tried to approach the Returning Officer soon after the election for recounting of votes but could not succeed and resultantly an application under section 95(6) of the Act (First Application) was filed before the Election Commission on 10.02.2024. The Election Commission through its order dated 11.02.2024 directed the Returning officer to entertain the application of respondent No.3 "... if consolidation has not been concluded already."
It is an admitted fact that consolidation of result had taken place prior to 11.02.2024 as Form-47 was issued by the Returning Officer on 09.02.2024. The Election Commission issued the requisite Notification on 17.02.2024. Respondent No.3, however, filed another application. (Second Application) before the Election Commission for implementation of its earlier order issued on 11.02.2024 and for cancellation of Form-45 and Form-49. The Election Commission on 18.03.2024 passed the order entertaining the application and directing the Returning Officer to submit a detailed report regarding order dated 11.02.2024 and issued notice to the petitioner to submit his reply.
5. Any inquiry on the issue raised before this Court must start from Article 225 of the Constitution which firmly commands that "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)."
6. The Act faithfully followed the command of the Constitution by enacting section 139(1) of the Act which states that "No election shall be called in question except by an election petition filed by a candidate for that election."
7. Section 95, which primarily deals with consolidation of results, grants a limited authority to the Returning Officer for recounting of the ballot papers of one or more polling stations subject to the conditions enumerated in subsection (5) provided the consolidation proceedings have not commenced. Similarly, the Election Commission can direct the Returning Officer to recount the ballot papers of one or more polling stations before conclusion of the consolidation proceedings.
8. Before considering the arguments of the parties, it is necessary to address the first enquiry which concerns the identification of the statutory purpose for the provisions contained in subsections (5) and (6) of section 95 of the Act. The proper construction of these provisions is to be found in the language used and its meaning read in its statutory context. For this purpose, the statutory history of this provision would be a useful guide.
9. The erswhile Representation of the People Act, 1976 provided .in section 39(6) that the Returning.
Officer may recount the votes of his own motion if he considers it necessary or upon the request of a contesting candidate or an election agent present if, in his opinion, the request is not unreasonable. This exercise was to be carried out immediately after the counting of votes at the close of poll.
10. The broad discretion vesting in the Returning Officer was watered-down after the Representation of the People Act, 1976 was repealed by the Act in the year 2017. Section 95(5) of the Act originally provided for recounting of votes by the Returning Officer (a) if a request was made by a contesting candidate where the margin of victory was less than five percent of the total votes polled in the constituency or ten thousand votes, whichever is less, or (b) where the Returning Officer considered the request of the candidate as not unreasonable.
11. This provision came up for interpretation in the case of Mir Mulib-ur-Rehman Muhammad Hassani v. Returning Officer and others PLD 2020 SC 718. The majority in the Supreme Court came to a curious result by holding that the two conditions set out in section 95 (5) must be read conjunctively. The relevant portion of the judgment reads as follows: However, once the words "or the Returning Officer considers such request as not unreasonable" at the end of the sentence are read along with the remaining conditions it becomes clear that 'such' an application for a recount must be considered reasonable by the Returning Officer in addition to meeting the other pre-conditions imposed by the provision. To our mind, this is the correct reading of section 95(5) of the Act based on the linguistic construction of the sentence, which makes it abundantly clear that the last part of the sentence (concerning reasonableness) is to be read conjunctively with the remaining conditions imposed on an application for a recount to qualify.
12. The legislature through the Elections (Second Amendment) Act, 2023 on 5th August, 2023 nullified the effect of the aforementioned judgment by excluding the Condition "the Returning Officer considers such request as not unreasonable" from section 95 (5) and modifying the criteria for recounting of votes in the following manner.
(a) The margin of victory between returned and runner up candidates is less than five percent of the total votes polled in the constituency or eight thousand .notes in case of National Assembly constituency and four thousand votes in case of a Provincial Assembly constituency, as the case may be, whichever is less; or
(b) The number of votes excluded from the count by the Presiding Officer are equal to or more than the margin of victory; The object and the context of these amendments make plain that the legislature has directed its attention towards the conditions that would trigger recounting of votes. These conditions on their literal construction reveal that the authority is granted to the Returning Officer simply to rectify the errors of counting, if any, and to perhaps ascertain the validity of the excluded votes if the relevant threshold is met with. The Returning Officer cannot reject ballot papers in this exercise for that would be a matter falling in the jurisdiction of the election tribunal. Be that as it may, with the introduction of amendments in section 95(5), the discretionary power of the Returning Officer to make .a decision about recounting of votes came to an end and the matter now falls to be decided on the formula given in the conditions attached to section 95(5).
13. The majority judgment in paragraph 19 distilled the reasons for qualifying the power to recount the votes prior to the commencement of the consolidation process. The purpose, according to the judgment, was ....to limit the number of frivolous applications for a recount made by losing candidates in constituencies around the country and to ensure that recounts arc entertained by Returning Officers only in those constituencies where the margin of victory is small enough to justify a recount, and an objective and tentative assessment is made by the Returning Officers on the basis of material placed before them to the effect that prima facie there are grounds justifying a recount and the request for such recount is not wholly unreasonable.
14. The structure of subsections (5) and (6) indicates that the exercise of power by the Election Commission follows the decision by the Returning Officer in declining the application for recounting of votes or refusal to entertain it. It is equally apparent that the Election Commission in its decision on the application of an aggrieved candidate must prima facie respond to the conditions mentioned in subsection (5) before making the decision to refer the matter back to the Returning Officer for recounting the votes. The Act does not constitute in the Election Commission an appellate authority over the decisions of the Returning Officers and at best it can be said that the repository of power in the Election Commission under sub-section (6) loosely share the same characteristics as that of a revision (except for the suo motu power) to ensure that the Returning Officer acts within the bounds of his authority and that he follows the process prescribed by law.
15. It is of utmost importance to note that the Act has not granted any right of appeal against the decision of the Returning Officer for entertaining, rejecting or accepting the application for recounting of the ballots. Contrast this provision with section 125 of the Act which falls in Chapter VII of the Act relating to Conduct of Elections to the Senate. This provision explicitly creates the right of appeal for a contesting candidate who is aggrieved by any proceedings relating to the count of votes for laying a challenge before the Election Commission.
16. Taken as a whole, this limited, power for recounting of votes before the commencement or conclusion of consolidation proceedings is in accord with Article 225 of the Constitution in view of the exclusivity granted to the resolution of the election disputes through an election petition before the tribunal constituted under the Act. This basic position of law has been settled, reiterated and applied too often to be doubted. The provisions contained in subsections (5) and (6) demonstrate quite clearly that the exercise of recounting of ballots, if the conditions mentioned in subsection (5) of section 95 are satisfied, must take place prior to the commencement or conclusion, as the case may be, of the consolidation process. These provisions are to be read as expressing an intention that on the conclusion of consolidation proceedings the right of the candidate who secured the most votes stands crystallized to be notified by the Election Commission and his election can only be challenged through an election petition in terms of Article 225 of the Constitution read with section 139(1) of the Act. The finalization of the consolidation process operates as the termination point for exercise of any power for recounting of ballots. This rule is firmly rooted and inherent in the objectives of the Act.
17. After consolidation of results by the Returning Officer, he is bound to send to the Election Commission signed copies of the Consolidated Statement of the Results of the Count and Final Consolidated Result together with Results of the Count and the Ballot Paper Account within 24 hours. The Election Commission, by the terms of section 98 of the Act, is required to publish in the official Gazette the name of the successful candidate within a period of fourteen days from the date of the poll. The notification of the election result is merely a ministerial act for the reason that the notification automatically follows the result mentioned in the Final Consolidation Result contained in Form-49. From the time of conclusion of consolidation process till its notification in the official gazette the Election Commission has no power to interfere in the same.
18. The Election Commission being cognizant of the limitations on the power relating to recounting of ballots, on the First Application of respondent No.3, directed the Returning Officer on 11.02.2024 to entertain it only "....if consolidation has not been concluded already." The Returning Officer allegedly did not entertain the application of respondent No.3 and issued Form-47 and Form-49 on 11.02.2024 and with that the consolidation process stood concluded and finalized.
19. The Election Commission in entertaining the Second Application of respondent No.3 on 08.03.2024 duly noted that the consolidation process has been completed and yet without furnishing any plausible reason issued notices to the petitioner and directed the Returning Officer to submit a detailed report regarding order dated 11.02.2024.
20. Notwithstanding the scheme of the Act as noted above which grants finality to the counting of votes after consolidation of result (subject to the challenge made to the election before the election tribunal), learned counsel contends that the general power of review is reserved with the Election Commission against any order passed by an officer under the Act by the terms of subsection (b) of section 8 of the Act. It is also the case of respondent No.3 that the judgment of the Supreme Court relied upon by the petitioner relates to subsection (c) of section 8 and thus it is not applicable to his case.
21. The only question which remains is whether section 8(b) can be construed as bestowing on the Election Commission an overarching power to order for recounting of ballots even after finalization of the consolidation process and thereafter to set at naught the election result. The respondent's preferred construction on section 8 (b) of the Act confronts a number of legal hurdles. In the first place, the power to order for recounting of ballots either by the Returning Officer or by the Election Commission is itself circumscribed by the commencement or conclusion of the consolidation proceedings in terms of subsections (5) and (6) of the Act. The consolidation of election results, which in itself is a time bound exercise, puts an end to any proceedings initiated for recounting of votes and such proceedings if not concluded by the time consolidation process is commenced or finalized stand abated. Secondly, the recounting of ballots is dependent on fulfillment of the conditions enumerated in subsection (5). The power vesting in the Election Commission under Subsection (6) for issuing directions to the Returning Officer for recatinting of votes must adhere to the same conditions that bound the Returning Officer. Order dated 11.02.2024 by the Election Commission does not reflect that any notice was issued to be petitioner as is required by sub- section (6) of section 95 of the Act. This order also does not demonstrate whether the conditions in sub-section (5) of section 95 were satisfied or not. Thirdly and as alluded to in the earlier part of this judgment, the Act has granted to the Election Commission the power under subsection (6) of section 95 to revisit the decision of the Returning Officer which is analogous to revision in the narrow sense. Subsection (6) of section 95 being a specific provision, a candidate cannot make use of the general provision of review contained in section 8(b) of the Act. It is settled law that specific provisions enerally take precedence over general provisions of a statute subject to the rider that in making this determination the Court will consider the context in which the provisions appear and the intent of the legislature. Having said that, there is no apparent connection between section 8 and section. 95 for the reason that the latter provision specifically deals with the process for consolidation of results and within its framework grants a right for recounting of ballots prior to the conclusion of the consolidation of results. The opening of section 8 "Save as provided otherwise in the Act" makes it obvious that, irrespective of precisely how the scope of review under subsection (b) might be described, the particular subject matter of recounting of votes in terms of section 95 is not within its exclusive operation. Lastly, the legislature by not providing any appeal against the exercise of power of recounting of ballots has manifested its intention of granting finality to the decision of the Returning Officer subject to the decision of the Election Commission.
The power of review in section 8(b) could hardly be interpreted as manifesting a legislative intent that that was meant to serve as an alternative to the appeal against the orders of the Returning Officer.
22. The foregoing may be sufficient for a conclusion that, properly construed, section 8(b) does not authorize the Election Commission to review the order of the Returning Officer in choosing to allow or refuse the recounting of ballots particularly when the consolidation process has been concluded and also when direct authority is available to the Election Commission under section 95 (6) of the Act.
23. This Court has the benefit of a full analysis by the Supreme Court in the case of Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997 on the issue and the context that has a close similarity to the present case in regard to the Principles which should guide the Election Commission in dealing with Matters of similar nature. The focus of the reasons in judgment of the Supreme Court is the scope of sections 8 and 9 of the Act and Article 218(3) of the Constitution and the powers the Election Commission may exercise in relation to these provisions. It was said that the terms "election" and "conduct the elections" are expressed in a wide sense in Article 218 and 225 of the Constitution encompassing the entire election process consisting of several steps starting with the issuance of the election program: and culminating with the declaration of the returned candidate and all the steps in between these stages. Recourse to the general power under Article 218(3) of the Constitution, according to the Supreme Court, can only be made in case of any eventuality not covered by the Act and that too fairly, reasonably and judiciously in accordance with the principles of equity, justice and good conscience and that these powers are exercised to supplement and not to supersede the specific provisions of the law. In the case of section 8 of the Act, it was stated that its openings words "Save as otherwise provided" were indicative of the legislative intention that the powers contained therein would not operate or intrude upon specific provisions dealing with a subject matter. In conclusion, it was held that the general powers under Article 218(3) and section 8(c) of the Act can be exercised only in respect of any stage of the election process but not after the completion thereof and also when there is no express provision in the law to deal with the matter or issue that arises during the performance of constitutional duty of the Election Commission of conducting the elections.
24. Although the Supreme Court was dealing with section 8(c) of the Act, but the principles stated in the judgment that section 8 and the general powers reserved to the Election Commission do not displace the specific provisions of the Act are fully applicable to the present case.
25. A learned Division Bench of this Court in ICA No.29 of 2024 titled Abdul Rehman Khan Kanju v.
Rana Muhammad Faraz Noon etc has already held that after the consolidation process there does not vest any jurisdiction in the Election Commission to nullify the election result. The operative part of the judgment reads as follows: Hence, we declare that assumption of jurisdiction, act of passing of original order and to withdraw the Notification dated 16.02.2024, issued to declare respondent No.1 as returned candidate and directing for publishing of his name, after conclusion of consolidation proceedings were without any lawful authority. No illegality is shown or pointed out in the impugned order, calling for indulgence as appellate court.
26. In the present case, the consolidation of result took place prior to the decision on the application for recounting of votes and the petitioner thereafter was notified as the returned candidate and as such Election Commission had no jurisdiction to entertain the Second Application of respondent No.2 let alone pass an order thereon for recounting of votes. Respondent No.2 after the consolidation of election result has the option of filing an election petition in which proceedings the ballots can be recounted. It is the case of respondent No.2 that the time for filing of election petition has lapsed and thus he has become remediless. This hardly furnishes a valid ground for exercising jurisdiction Respondent No.2 has the option to file the election petition together with the application for condonation of delay on the ground that he was prosecuting his remedy before a wrong forum.
27. The petitioner leveled the allegation of mala fide on the Election Commission which was allegedly thwarting the election result in the garb of exercising power under section 95 (6) of the Act even after consolidation of election results. This Court has heard several petitions by the same set of petitioners in which a similar issue was involved. It is hard to envision that Election Commission is not cognizant of the absolute rule that election disputes can only be resolved and decided through election petitions filed before the election tribunals constituted under the Act. It may further be pointed out that this Court in its judgment rendered in writ petition No.16416 of 2024 titled Ch. Bilal Ejaz v. Election Commission of Pakistan and others also pointed out to various contradictory orders passed by the Election Commission. Malice or mala fide is often termed as a question of fact, but it can also be decided on inferences that can be drawn from the conduct of an authority which deliberately acts contrary to the objective requirements for valid exercise of power for collateral purpose not authorized by law. The petitioner was thus required to demonstrate before this Court with precise particulars and documentary evidence that Election Commission specifically and predominantly targeted candidates supported by Tehrik-e-Insaf to the exclusion of all other political parties by seeking to set aside their elections results by resorting to section 95 (5) and (6) of the Act. The petitioner has not placed sufficient material before this Court to make such a determination and in the absence thereof this Court is not in a position to entertain and adjudicate upon the petitioner's plea. Be that as it may, the petitioner has the option to initiate appropriate proceedings against all or some of the members of Election Commission if it is in possession of all the relevant material which in his opinion substantiates mala fide on the part of the members of the Election Commission.
28. Before parting with this judgment, some observations may be made regarding the preparedness of the Election Commission for conducting the elections. The Election Commission is a constitutional body charged with the most arduous task of conducting free, fair and impartial elections which goes to the very root of the constitutional governance of this Country. The Election Commission has immense resources available to it for discharging the function of holding the elections. The Election Commission at the very least ought to know the provisions of the Act and the amendments made therein by the Legislature pertaining to section 95. There is no excuse for it to say that it was not aware of the fact that once the conditions of section 95 (b) are met with the recounting of votes is required to take place. It must also surely know that the Returning Officer has limited time available to him for completion of the consolidation process which in the case of elections to the National Assembly is seven days after the polling day and five days after the polling day in the case of elections to a Provincial Assembly. The Election Commission which took officials from the Executive for conducting the general elections for the year 2024 should have imparted adequate training to them as these officials unlike judicial officers from subordinate judiciary are not well trained in comprehending let alone interpreting legal provisions of the Act.
29. For what has been stated above, this writ petition is allowed and it is declared that after consolidation of election result the Election Commission becomes functus officio in relation to any power under section 95 (6) of the Act. Resultantly, the order passed by the Election Commission on 18.03.2024 is declared to be without lawful authority and of no legal effect and is set aside.