Shakil Ahmad, J. This is a petition that has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), by Rana Muhammad Faraz Noon (hereinafter referred to as petitioner) with the following prayer: - ".........this petition may kindly be accepted and the impugned order dated 22.02.2024 passed by respondent No.1 and impugned notice dated 25.02.2024 issued by respondent No.2 may kindly be set aside by declaring the same as illegal, without jurisdiction and without lawful authority against the law and facts of the matter."
2. Facts, in brief, relevant for the decision of instant petition are that the petitioner participated in General Elections, 2024 and contested for the seat of National Assembly (NA-154 Lohdran-I) for which following candidates besides petitioner also contested the election: -
1. Mr. Imdad Ullah Abbasi
2. Rana Muhammad Afzal Noon
3. Mr. Zafar Iqbal
4. Mr. Abdul Rehman Khan Kanju
5. Mr. Irfan Ahmad
6. Mst. Asmat Bibi
7. Mr. Muhammad Ajmal Kanju
8. Mr. Muhammad Akhtar Khan Kanju
9. Mr. Muhammad Zubair As per petitioner's stance he secured 1,34,937/- votes and Abdul Rehman Khan Kanju (respondent No.3 herein) secured second highest votes i.e. 1,28,438/- and after consolidation of results Form-47 was issued. Subsequently consolidation proceedings were finalized in the presence of contesting candidates and on the basis of consolidated result of all polling stations, Form-49 was issued by the Returning Officer, NA-154 Lodhran-I (respondent No.2 herein) declaring the petitioner as returned candidate and subsequently on the basis of consolidation proceedings Notification No.F.2(5)/2024-Cord(1) dated 16.02.2024 was issued by Election Commission of Pakistan (hereinafter referred to as the 'Commission') under section 98 sub section 1 of the Elections Act, 2017 (Act No.XXXIII of 2017) (hereinafter referred to as the 'Elections Act') by declaring petitioner as returned candidate. According to petitioner, it was on 25.02.2024 when respondent No.2 issued letter No.51/RO/ADC(F&P)/LD requiring the petitioner and others to attend the process of recounting of votes qua constituency No.NA-154 Lodhran-I, which was scheduled to be held on 26.02.2024 at 10:30 AM and petitioner came to know that the Commission passed order dated 22.02.2024 (impugned order) directing respondent No.2 to carry out recounting of votes of constituency NA- 154 Lodhran-I within a period of week and communicate final result to the Commission for further proceedings and fixed next date of hearing as 04.03.2024, hence this petition.
3. Learned counsel for the petitioner argued that after declaring the petitioner as returned candidate in view of Notification No.F.2(5)/2024-Cord(1) dated 16.02.2024, the Commission had become functus officio and impugned order dated 22.02.2024 has been passed without any lawful authority more particularly where Election Tribunal was constituted by the Commission vide Notification No.F.23(8)/2024-O/o-DD-Law dated 20.02.2024. It has further been argued that before passing the impugned order for recounting of votes particularly after declaring the petitioner as returned candidate vide Notification No.F.2(5)/2024-Cord(1) dated 16.02.2024, no notice whatsoever was served to petitioner, as such the principle of natural justice as enshrined in the maxim audi alteram partem was violated. According to learned counsel for petitioner, impugned order was totally illegal and without lawful authority. It has been further added that review petition filed before the Commission has already been withdrawn as petitioner availed the efficacious remedy by filing instant petition.
4. As against that, learned counsel appearing on behalf of respondent No.3 argued that petitioner has deliberately concealed the fact qua filing of an application by respondent No.3 before respondent No.2 even prior to the consolidation of results requiring recounting of votes in view of provisions of section 95 (5) of the Elections Act, that however was not decided by respondent No.2 owing to the deteriorating law and order situation created by the supporters of petitioner.
According to him, petitioner also concealed the fact that respondent No.3 approached the Commission for recounting of votes of all polling stations of the constituency NA-154 Lodhran-I and on that application reports were obtained from the concerned quarters and after obtaining the reports the Commission passed impugned order dated 22.02.2024. Learned counsel for respondent No.3 further elaborated that since petitioner has filed instant petition by concealing certain facts, he is not entitled for the equitable and discretionary relief. Learned counsel for respondent No.3 further added that vide impugned order respondent No.2 was merely required to have recounted the votes of the whole constituency in the presence of the parties and then to submit complete report and matter was fixed for 04.03.2024. Added that petitioner since availed of remedy of filing review petition before the Commission, therefore, instant petition is not maintainable. Further explained that no final order so far has been passed by the Commission, therefore, instant petition is not maintainable particularly in view of the provisions of section 9 (5) of the Elections Act.
According to him, since no declaration has been made by the Commission, instant petition is liable to be dismissed for want of jurisdiction as even after passing of declaration by the Commission any aggrieved person could have filed appeal before the Supreme Court of Pakistan within a period of thirty days. According to him, petitioner cannot invoke the jurisdiction of this Court under Article 199 of the Constitution.
5. Learned Law Officers appearing on behalf of the Commission argued almost in the same lines as argued by learned counsel for respondent No.3 by adding that the Commission has the concurrent jurisdiction in terms of section 9 of Elections Act and even after issuance of notification of the returned candidates, the Commission can pass orders in view of section 9 of Elections Act till the period of sixty days. According to them, even after the constitution of Election Tribunal, the Commission can pass appropriate order as it may deem necessary so as to ensure that the election was conducted honestly, justly, fairly and in accordance with law.
6. Heard learned counsel for the parties, learned Law Officers and perused the record.
7. Before dilating upon the objection raised by learned counsel for respondent No.3 and learned Law Officers qua maintainability of instant petition particularly in view of provisions contained in section 9 (5) of Elections Act, it would be appropriate to have a glance over relevant provisions regarding constitution of the Commission, its functions & duties, election of National & Provincial Assemblies and resolution of disputes arising out of election process as contained in the Constitution and Elections Act. Article 218 of the Constitution provides constitution of a permanent Commission for the purpose of election of both Houses of Parliament, Provincial Assemblies and for the election to such other public offices as may be specified by the law. As per Clause 2 of Article 218 of the Constitution, the Commission shall consist of the Commissioner, who shall be the Chairman of the Commission and four members. The primary duty of the Commission has been contemplated under Clause (3) according to which the Commission has 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 corrupt practices are guarded against. Article 219 of the Constitution prescribes the duties of the Commission. Article 222 of the Constitution mandates the promulgation of laws subject to the Constitution in respect of following matters: - "(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;
(b) the delimitation of constituencies by the Election Commission [including delimitation of constituencies of local governments];
(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;
(d) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections;
(e) matters relating to corrupt practices and other offences in connection with elections; and
(f) all other matters necessary for the due constitution of the two Houses, the Provincial Assemblies [and local governments]"
Provisions of Article 225 of the Constitution are couched in negative language as it starts with word 'no' and contemplate that no election to a House or a Provincial Assembly shall be called into question except by an election petition presented to the tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament). The Elections Act is an Act to amend, consolidate and unify laws relating to the conduct of elections. Chapter-II of the Elections Act describes the procedure and powers of the Commission so as to ensure holding of fair elections.
Chapter V of the Elections Act mainly deals with the appointments of District Returning Officers, Returning Officers, Presiding Officers and describes duties of election officials for the conduct of elections to an Assembly. Chapter IX of the Elections Act provides the procedure qua the resolution of election disputes through filing of election petitions before Election Tribunals constituted under Article 225 of the Constitution. Having a bird's eye view of the relevant provisions of the Constitution and Elections Act in respect of election process and resolution of controversies between the contesting parties, now I revert to the objection qua maintainability of instant petition as hinted in the opening lines of this paragraph. According to learned counsel for respondent No.3 and learned Law Officers, instant petition is not maintainable in view of provisions of section 9 of the Elections Act. Provisions of section 9 of the Elections Act are reproduced hereunder for the facility of ready reference: -
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.
Explanation.--If the turnout of women voters is less than ten percent of the total votes polled in a constituency, the Commission may presume that the women voters have been restrained through an agreement from casting their votes and may declare, polling at one or more polling stations or election in the whole constituency, void.
(2) Notwithstanding the powers conferred on it by sub-section (1), the Commission may order filing of complaint under this Act before a court of competent jurisdiction against persons who entered into the agreement referred to in sub-section (1).
(3) Notwithstanding the publication of the name of a returned candidate under section 98, the Commission may exercise the powers conferred on it by sub-section (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.
(4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure.
(5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court.
From plain reading of the above, it can very conveniently be resolved that powers conferred upon the Commission are constricted only to the issuance of declaration with regard to declaration of poll as void and repolling in respect of one or more polling stations or even in the whole constituency when Commission is satisfied that by reason of grave illegalities or violations of the provisions of the Elections Act or Rules that 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, repolling and recasting of the votes was necessary. The provisions referred above when are seen in their entirety, same do not confer any power upon the Commission to pass an order for recounting of votes in terms of section 95 of the Elections Act while invoking the provisions of section 9 of the Elections Act. Concurrent jurisdiction of the Commission in view of sub section 3 of section 9 of the Elections Act is confined qua the powers as conferred upon the Commission under sub section 1 of section 9 of the Elections Act that in turn are confined only for issuance of a declaration by calling upon 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 in view of some grave illegalities or violations of the provisions of the Elections Act and that have materially affected the result of the poll at one or more polling stations or in the whole constituency. Right of appeal to the Supreme Court given to an aggrieved person under section 9(5) of the Elections Act only is confined regarding the matter qua declaration of a poll to be held as void and calling upon voters to recast their votes in the manner provided for bye- elections. In case "Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others" (Civil Appeal No.142 of 2019, Civil Petition No.1369 of 2019) while expounding the scope of section 9 of Elections Act, the Supreme Court held as under: - "...The opening expression used in Section 9(1), "Notwithstanding anything contained in this Act", shows that the jurisdiction of the Election Commission under this Section has an overriding effect against any other provision of the Elections Act. Thus, the Election Commission is competent to exercise its jurisdiction under this Section, notwithstanding the availability of the remedy of the election petition under Section 139 read with Section 142 and the jurisdiction of the Election Tribunal to grant the same relief under Section 154(1)(b)(i) of the Elections Act. To the extent of the grounds specified in Section 9(1) upon which the Election Commission can exercise its power to order a re-poll, the jurisdiction of the Election Commission and the Election Tribunal is, therefore, concurrent. The Election Commission can exercise its jurisdiction under Section 9(1) of the Elections Act, to order a re-poll if: i. There have been grave illegalities or violations of the provisions of the Elections Act or the Rules made thereunder; ii. Such illegalities or violations are evident from facts apparent on the face of the record; and iii. Such illegalities or violations have materially affected the result of the poll at one or more polling stations or in the whole constituency Although the ground of grave illegalities or violations of the provisions of the Elections Act or the Rules made thereunder in the election process is common for the exercise of their respective jurisdictions by the Election Commission and the Election Tribunal, the difference lies in the nature of proof of those illegalities and violations, and in the scope of enquiry.
26. The words "from facts apparent on the face of the record" used in Section 9(1) are of vital importance in this regard. They restrict the jurisdiction of the Election Commission to such grave illegalities or violations of the Elections Act or the Rules which are evident "from the facts apparent on the face of the record". The Election Commission can, therefore, exercise its jurisdiction under Section 9(1) only when the allegation or issue of grave illegalities or violations of the Elections Act does not require a full-fledged trial and recording of pro and contra evidence of the contesting parties, which can only be undertaken by the Election Tribunal."
Instant matter indeed relates only to the recounting of votes under section 95 of Elections Act, therefore, objection raised by learned counsel for respondent No.3 and learned Law Officers qua non-maintainability of instant petition in view of section 9(5) of Elections Act is misconceived. In present case, respondent No.3 moved an application under section 95(5) of the Elections Act and all other enabling provisions of the Act ibid before the Commission seeking recount of votes mainly on the ground that margin of votes between him and the returned candidate was less than 8000 votes and also less than 5 % of total number of votes polled. According to learned counsel for respondent No.3 an application was filed by respondent No.3 before respondent No.2 for the same relief but the application was not decided, therefore, petition was filed before the Commission for obtaining the order for recounting under section 95 of the Elections Act. From the bare perusal of copy of the application annexed at page 12 of C.M No.1087 of 2024, it transpires that no such application was narrated to have been moved before respondent No.2 under section 95 of the Elections Act. To better appreciate the submission of learned counsel for respondent No.3 that Commission was empowered to pass an order of recounting even after the consolidation of results under section 95 of the Election Act, it would be advantageous to reproduce hereunder section 95 of the Elections Act: -
95. Consolidation of results.--(1) Immediately after announcement of provisional results, the Returning Officer shall give the contesting candidates and their election agents a notice in writing of the day, time and place fixed for the consolidation of the results, and, in the presence of such of the contesting candidates and election agents as may be present, consolidate in the prescribed manner the Results of the Count furnished by the Presiding Officers, including therein the postal ballots received by him before the time fixed for the consolidation of results [: Provided that presence of not more than one agent of each candidate shall be allowed.]
(2) Before consolidating the Results of the Count, the Returning Officer shall examine the ballot papers excluded from the count by the Presiding Officer and, if he finds that any such ballot paper should not have been so excluded, count it as a ballot paper cast in favour of the contesting candidate for whom the vote has been cast.
(3) The Returning Officer shall also count the ballot papers received by him by post in such manner as may be prescribed and include the votes cast in favour of each contesting candidate in the Consolidated Statement except those which he may reject on any of the grounds mentioned in section 90.
(4) The ballot papers rejected by the Returning Officer under subsection (3) shall be mentioned separately in the consolidated statement.
[(5) Before commencement of the proceedings, the Returning Officer shall recount the ballot papers of one or more polling stations if a request or challenge in writing is made to that effect by a contesting candidate or his election agent and--
(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 votes 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: Provided that the Returning Officer shall recount only once.]
(6) The Commission may, before conclusion of the consolidation proceedings [and after notice to the contesting candidates], for reasons to be recorded, direct the Returning Officer to recount the ballot papers of one or more polling stations.
(7) If there is a difference between the Results of the Count received from the Presiding Officers and the results of the recount, the Returning Officer shall record the difference and details thereof: Provided that where the Returning Officer has recounted the votes under sub-section (5) or sub- section (6), the consolidation proceedings shall be completed [within--
(a) seven days after the polling day in the case of elections to the National Assembly; and
(b) five days after the polling day in the case of elections to a Provincial Assembly.]
(8) The Returning Officer shall, within twenty four hours after the consolidation proceedings, send to the 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, as received from the Presiding Officers, and shall retain copies of these documents for record.
(9) After consolidation of results, the Returning Officer shall give to such contesting candidates and their election agents [and accredited observers] as are present during the consolidation proceedings a copy of the Consolidated Statement of the Results of the Count and the Final Consolidated Result sent to the Commission against proper receipt.
(10) On receipt of documents under sub-section (8), the Commission shall, within fourteen days from the date of the poll, publish the documents on its website. (Underlining is to supply emphasis)
Bare reading of above particularly sub section (6) of Section 95 of Elections Act vividly reveals that the Commission may before the conclusion of consolidation proceedings, after giving notice to contesting candidates and for reasons to be recorded, direct the Returning Officer to recount the ballot papers of one or more polling stations. The powers conferred upon the Commission with regard to passing an order for recounting of the ballot papers are limited and same can be exercised only before the conclusion of consolidation proceedings subject to notice to the contesting candidates. In the instant case, the final consolidated result was prepared and submitted to the Commission by respondent No.2 under section 98 (1) of the Elections Act on Form- 49 and after receiving final consolidated result from respondent No.2, the Commission also proceeded to publish Notification No.F.2(5)/2024-Cord(1) dated 16.02.2024 in terms of sub section
(1) of Section 98 of the Elections Act in the official gazette showing the name of contesting candidate who received highest number of votes and stood elected whereby petitioner was declared to have been elected. The Commission, therefore, had no authority or power to pass an order for recounting in terms of section 95 (6) of the Elections Act when consolidation proceedings stood completed and even notification under section 98(1) of the Elections Act declaring petitioner as returned candidate was issued. It may further be seen that order qua recounting of votes under section 95 (6) of the Elections Act can only be passed after putting the contesting candidates to notice by also giving the reasons justifying order of recounting. In the instant case, undeniably, no notice whatsoever was served to the petitioner before passing an order of recount of ballot papers.
Assistant Director (Law) of the Commission upon Court query that whether any notice was issued to petitioner before passing order for recounting, frankly and fairly stated that no notice was served upon petitioner before passing the impugned order. Where law itself provides issuing of notice to a candidate before passing any order for recounting of ballots, same is required to be construed strictly. It is settled principle of law that when a thing is required to be done in a particular manner that must be done in that particular manner and not otherwise. The Commission had failed to follow the dictates of provisions of section 95 (6) of the Elections Act and passed the impugned order even in disregard of norms of judicial procedure that requires issuance of notice to a person whose rights are likely to be affected adversely by the impugned order. In case "Rahim Shah v. The Chief Election Commissioner of Pakistan and another" (PLD 1973 SC 24), it was held by the Supreme Court as under: - "............No notice was given to the Jamaat either before or after these orders were made. It was held that the orders were vitiated being violative of the principles of natural justice that no man shall be condemned unheard. In support of this decision Cornelius. C. J. cited the cases of Ex parte: Ramshay (1852) 18 Q B 173) and Osgood v. Nelson (L R 1972 A C 636)."
In case "The University of Dacca through its Vice Chancellor, etc. v. Zakir Ahmed" (PLD 1965 SC 90), it was laid down that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the right of parties concerned. As regards arguments of learned counsel for respondent No.3 and learned Law Officers that order passed by the Commission was not amenable to constitutional jurisdiction of this Court under Article 199 of the Constitution, same carries little substance for the reason that where the action in question suffers from mala fides and is without jurisdiction or is coram non judice, this Court got the jurisdiction to go into and test the validity of such an action. Reliance in this regard may safely be placed on case "Muhammad Azhar Siddique and another v. Government of Punjab through Chief Secretary, Lahore and 8 others" (PLD 2010 Lahore 138), wherein while dealing with the moot point it was resolved as under: -
7. The second jurisdictional objection asserts the immunity of the orders passed by the Honourable CEC from judicial scrutiny. In the judgments noted above learned Courts have proceeded to examine the merits of the challenges made by executive authorities to orders passed by the Honourable CEC with respect to the announcement of schedules of elections.
Therefore, the present objection of justiciability has been surmounted before. However, to put the matter at rest it must be observed that the constitutional jurisprudence in Pakistan does not recognize non-justiciability of any action taken or done by a constitutional functionary of the State. The thresh-hold for attracting judicial review may differ based upon relevant criteria but complete immunity from judicial review is a misnomer. However, strong may be a constitutional provision for ouster of jurisdiction of the superior Courts in a matter, there are three criteria upon which a superior Court shall always have jurisdiction to examine any action by a constitutional functionary. Where the action in question suffers from mala fides, is without jurisdiction or is coram non judice, a superior Court shall have jurisdiction to scrutinize and test the validity of such an action. This principle was laid down with great clarity in the case of Federation of Pakistan v.
Ghulam Mustafa Khar PLD 1989 SC 26. It has been reiterated subsequently by the Honourable Supreme Court without modification. With utmost respect therefore, the actions taken by the Honourable CEC in the discharge of his functions and duties do not enjoy absolute immunity.
Therefore, the discretion of the Honourable CEC in directing the issuance of schedule of elections or bye-elections cannot be absolute but is fettered by such constrains that are imposed under the law. The ambit of his discretion may vary depending on the nature of a case; it would be limited in the exercise of judicial functions by the Honourable CEC as laid down in Raheem Shah v. The Chief Election Commissioner of Pakistan PLD 1973 SC 24. However, such discretion would be much wider where his autonomy to apply his mind to his constitutional function is involved. In this context his discretion as a constitutional functionary shall be exercisable, reasonably, fairly and in terms of the statute. The satisfaction of the said tests shall suffice to avoid interference in judicial review. Reference in this behalf may be made to Federation of Pakistan v. Haji Muhammad Saif Ullah Khan PLD 1989 SC 166. Under Article 225 of the Constitution, Dr. Farooq Hassan, Advocate, pressed another limb of the objection to justiciability of the actions taken by Honourable CEC. That provision bars challenge to an election to the National Assembly or a Provincial Assembly except by an election petition presented before an Election Tribunal. An election is deemed to commence from the date of commencement of its election schedule. In the present case the election schedule commenced with the issuance of public notice by the Returning Officer on 24-9-2009. This petition was filed on 29-9-2009 one day prior to the filing of nomination papers by candidates in the bye-elections. Accordingly, learned counsel for the appellant contended that the election schedule having commenced, the bye-election could not be challenged other than before the Election Tribunal appointed for the purpose. On this point two authorities may be referred briefly and relevantly to note that an election petition provides a remedy to the contesting candidates and not a third party like the Provincial Government.
Consequently, Article 225 of the Constitution is not a hurdle in the filing of the present petition on the principles recognized by the Honourable Supreme Court in Ghulam Mustafa Jatoi's case 1994 SCMR 1299 and Aftab Shahban Mirani's case 1998 SCMR 1863. Consequently, with due deference to the wide amplitude of the discretion vesting in the Honourable CEC, the present objection claiming non justiciability of the exercise thereof, is without legal foundation.
(Emphasis supplied)
In the present case, impugned order has been passed by the Commission against the dictates of provisions of section 95 of the Elections Act, therefore, same can conveniently be described to have been passed without jurisdiction in the matter. Even, no remedy whatsoever has been provided elsewhere in the Elections Act to impugn an order passed by the Commission with regard to recounting of ballot papers after the consolidation of results of the count, therefore, petitioner cannot be allowed to remain remediless, as such he was well within his right to challenge the impugned order while invoking the provisions of Article 199 of the Constitution. Submission of learned counsel for respondent No.3 that since petitioner availed of the remedy of filing review petition therefore instant petition is not competent, is without any substance for the simple reason that no remedy of review of an order passed by the Commission itself has been provided elsewhere in the Elections Act. As per section 8(b) of the Elections Act, the Commission only has the power to review an order passed by an Officer under the Elections Act or Rules including rejection of ballot papers. No power of review has been conferred upon the Commission to review its own order. Where no remedy is provided elsewhere to challenge the impugn order qua recounting of votes, this Court has got the jurisdiction under Article 199 of the Constitution to entertain a petition involving question of law or interpretation of law in respect of an election dispute. In case "Syed Nayya r Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others" (PLD 2008 SC 487), while dealing with the question of maintainability of petition under Article 199 of Constitution, Supreme Court of Pakistan observed as under: - "5. The general law is that the High Court should not interfere in the election disputes in its constitutional jurisdiction and this Court in Javed Hashmi's case supra has emphasized that in view of the bar contained in Article 225 of the Constitution, the High Court is not supposed to exercise its jurisdiction under Article 199 of the Constitution in election matters. The same view was expressed in Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCMR 1299 with the observation that in exceptional cases the jurisdiction of the High Court under Article 199 of the Constitution can be invoked and same principle was followed in Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan PLD 2005 SC 52 but we may point out that the concept of absolute bar of jurisdiction of the High Court in election matters is based on misconception of law. The power of judicial review of the High Court is certainly not available as an alternate remedy in the election matter but if the aggrieved person has no other remedy, the bar of jurisdiction contained in Article 225 of the Constitution, may not affect the jurisdiction of the High Court to entertain a petition involving question of law or interpretation of law in respect of an election dispute."
(Emphasis supplied)
In Case "Ghulam Mustafa Jatoi v. Additional District and Sessions Judge" (1994 SCMR 1299) the Supreme Court held as under: - "Generally in an election process the High Court cannot interfere by invoking its Constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court."
(Emphasis supplied)
Impugned order passed by the Commission issuing direction to respondent No.2 for recounting after the completion of consolidation proceedings cannot remain unnoticed by this Court while exercising jurisdiction under the provisions of Article 199 of Constitution particularly in view of the fact that the impugned order was passed after issuance of Notification No.F.2(5)/2024-Cord(1) dated 16.02.2024 and more particularly after the establishment of Election Tribunal through Notification No.F.23(8)/2024 O/o-DD-Law dated 20.02.2024 inasmuch as the moment when Commission issued notification qua the establishment of Election Tribunal so as to decide the election disputes, no authority or jurisdiction was left with the Commission to pass an order qua the recounting of the ballot papers under section 95 of the Elections Act. So far as submission of learned counsel for respondent No.3 that petitioner concealed facts qua filing of petition by respondent No.3 before the Commission and reports requisitioned by Commission from the R.O, therefore, he is not entitled to discretionary relief, is concerned, same is of little avail to the respondent No.3 for the simple reason that undeniably petitioner was never put on notice prior to the passing of the impugned order, therefore, there was no question of narrating those facts in his petition which presumably were not in the know of petitioner. Article 225 of the Constitution mandates decision of election disputes by the Election Tribunal and the provisions of Section 140 of the Elections Act deal with the appointment of Election Tribunals by the Commission for swift disposal of election petitions.
8. The upshot of above discussion is that petition in hand is allowed. As a result, impugned order dated 22.02.2024 and notice dated 25.02.2024 are declared to have been passed without jurisdiction and lawful authority, therefore, the same are set aside and as a natural corollary to that, any proceedings carried out by respondent No.2 in pursuance of the impugned order and notice would be considered to have been vitiated.
9. Since main petition has been allowed, C.M. Nos.1070, 1071, 1087 & 1088 of 2024 stand disposed of accordingly.