ALI BAQAR NAJAFI, J. Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 08.02.2024 passed by the Returning Officer (R.O.) with a further prayer to issue a direction to respondents to allow the petitioner to participate in the consolidation of results in accordance with Rule 85 of the Election Rules, 2017 and the so called consolidation carried out in the absence of the petitioner be declared unlawful and the R.O. be also restrained from declaring the final result of NA-128.
2. Brief facts giving rise to the filing of this petition are that the petitioner is a candidate for the National Assembly of Pakistan from NA-128 (Lahore) who contested the elections and claimed to have received maximum votes in the polling held on 08.02.2024 in all polling stations and polling booths. After completion of the polling, he himself went to the office of Returning Officer/respondent No.1 to witness the process of consolidation of results from 30 polling stations as envisaged under Rule 85 of the Election Rules, 2017. The petitioner was set to win the elections with a large margin but surprisingly, respondent No.3/SP Model Town, Lahore at 10.45 p.m. evicted him through a letter dated 08.02.2024 issued by respondent No.1 consequent to the incident as few minutes before, some miscreants carrying sticks were allowed to enter the lawn of the Government Girls High School Shuhada-e-APS, E-Block, Model Town, Lahore to interrupt the consolidation of results but the situation was immediately controlled. Then at 11.40 p.m. when he tried to be present at the time of consolidation of result, he was disallowed to enter into the office of Returning Officer/respondent No. 1.
3. Learned counsel for the petitioner contend that under section 92 of the Elections Act, 2017 the Returning Officer is bound to prepare and announce provisional consolidated statement of results of the count of the constituency on receipt of the results of the count from all Presiding Officers only in the presence of the contesting candidates, his election agents or authorized observers. Adds that he is bound to affix a copy of the provisional consolidated statement of results signed by him at a conspicuous place in his office and send a copy to the Election Commission of Pakistan. Adds that under section 95 of the Elections Act, 2017 immediately after announcement of provisional results, the Returning Officer shall give the contesting candidates and- their election agents a notice for a day, time and place for the consolidation of the results and in their presence consolidate the result in the prescribed manner of the count furnished by the Presiding Officers.
Adds that the Returning Officer within 24 hours after the consolidation proceedings will send a signed copy to the Commission the consolidated statement of the results of the count and final consolidated result together with results of the count and the ballot paper account and that after the consolidation of results the Returning Officer shall give the contesting candidates present during the consolidation proceedings, a copy of the consolidation statement against proper receipt. Adds that ECP within 14 days from the date of the poll, display the documents on its website. Under Rule 84 of the Election Rules, 2017, the Returning Officer is to prepare the provisional results of the count of the constituency, as required under section 92, on Form-47. Under sub- clause 4, after preparing the provisional consolidated statement of results of the count under sub- rule (1), the Returning Officer shall announce the same in the presence of such candidates, their election agents or authorized observers and shall affix a copy of such results at a conspicuous place in his office for information of general public. A timeframe has been provided in the said rule for sending the copy of Form 47. Under Rule 85 of the Election Rules, 2017 the consolidation of results by the R.O. in Form 48 requires the presence of the contesting candidates and one of their election agents. If any contesting candidates objects to the rejection of the ballot paper, the Returning Officer ill mention "rejection" objected to. But all the procedure is being bypassed, therefore, prays for the relief.
4. Conversely, learned counsel for the Election Commission of Pakistan submits that under section 125 of the Elections Act, 2017 the contesting candidate who is aggrieved by any proceedings relating to the count of votes may file an appeal to the Commission within 03 days from the date of completion of the count of votes by the Returning Officer and that a question which can be settled in an appeal shall not be raised in an election petition or before any court or authority. Learned counsel also objects on the maintainability of the petition and submits that the Returning Officer/respondent has become functus officio after preparation of Form 47 according to which the petitioner obtained 159024 votes whereas Mr. Muhammad Aun Saqlain his close candidate from Istehkam-e-Pakistan Party obtained 172576 votes.
5. Arguments heard. Record. Perused.
6. The Election 2024 was announced by the Election Commission of Pakistan on 03.11.2023 before the Supreme Court of Pakistan and initiated the process of election as per schedule scanned below:-
7. Pursuant thereto, the petitioner filed his nomination papers from NA-128, Lahore and after scrutiny he was allowed to contest the elections on 08.02.2024. His case is that in the form 45 prepared under Rule 84(1) of the Elections Rules, 2017 of all the polling stations a copy of which was given to the petitioner according to which he was winning with the large margin. However, he tried to be present in the office of Returning Officer at the time of preparation of the consolidated statement and the result of count under form 47 under rule 84(1) but he was expelled by the orders of the Returning Officer and the form 47 was prepared at his back and in a clandestine manner showing the opposite candidate as successful. He tried to approach the Returning Officer but he was not traceable. However, to cater such like situation the ECP had already issued a press release on 07.02.2024 according to which the complaints regarding recounting etc. could be filed according to the proposed Standard Operating Procedures (SOPs) uploaded on the official website of the ECP. The SOPs issued by the Election Commission of Pakistan on 07.02.2024 had also shown the schedule and time of filing such complaints under section 9 of the Elections Act, 2017. A copy of the proposed press release and the proposed Standard Operating Procedures for dealing with the matter of recounting, petitions under sections 8, 9 and 15, 95 and 9 of the Elections Act, 2017 on 08.02.2024 and after that which are scanned below:-
8. The present constitutional petition was filed immediately on 09.02.2024 which was fixed before this court the same day and the Returning Officer was summoned but he did not appear and then later in the day a restraining order was passed directing the Election Commission of Pakistan not to issue form 47. Today Election Commission of Pakistan has contested the matter and the opposite candidate namely, Muhammad Aun Saqlain also appeared who had vehemently argued against the maintainability and the premature stand taken by the petitioner through filing of this constitutional petition, while bypassing the remedies which should have been availed by him, first.
9. In view of the above respective submissions made by the parties, it is of paramount importance that the maintainability of this writ petition be discussed first. Under Article 225 of the Constitution, elections and by-elections held in the National or the Provincial Assembly can be challenged under election law. The power to hold elections by the Election Commission of Pakistan has also been mandated under Article 218(3) of the Constitution according to which it is the duty of ECP to organize and conduct the elections honestly, justly, freely, fairly and in accordance with law.
Articles 225 and 218(3) of the Constitution are reproduced as under: "Article 225 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)] Article 218(3)
[(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament),. Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.] [(2)..............................................
(a) ..............................................
[(b) ..............................................
(3) It shall be the duty of the Election Commission 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."
10. The powers to hold elections have been interpreted in various judgments by the apex court. In more recent reported judgment in Zulfiqar Bhatti's case[1], it was held by the apex court that the "word" and the expression to conduct elections used in the above said two Articles has also been explained in Javed Hashmi's case in wide connotations to include the entire election process starting from issuance of election program to declaration of returned candidate including the consolidation of results. Para 9 of the judgment is reproduced as under:- "9 So far as the first question is concerned, the meaning of the term "election" and of the expression "conduct the election" as used in Articles 218 and 225 of the Constitution has already been expounded by a four-member Bench of this Court in Javaid Hashmi case. The words "election" and "conduct the election". as expounded in that case as well as in the other cases approvingly cited therein, have been used in Articles 218 and 225 of the Constitution in a wide sense to connote the entire election process consisting of several steps starting with the issuance of the election programme and culminating with the declaration of the returned candidate, which include filing of the nomination papers, scrutiny of the nomination papers, withdrawal of the candidates, holding the poll, counting of the votes, consolidation of the result and declaration of the returned candidates, etc. In this wide sense, the process of conducting the election starts with the issuance of the election programme and stands completed on the publication of the names of the returned candidates in the official gazette."
In Muhammad Raza Hayat Hiraj's case[2], the importance of Javed Hashmi's case was emphasized and it was held that where constitutional provision is expressed in negative form to give jurisdiction to Tribunal pointed by the Election Commission of Pakistan, it oust the jurisdiction of all courts in respect of the elections mattes by giving only one mode of challenge. Relevant extract of para 28 is reproduced as under:- ".............The word "election" in Article 225 of the Constitution was given a wide meaning and war broadly construed. Mr. Justice Muhammad Haleem, CJ (as he then was) authored the majority judgment and after referring to the Indian judgment in Election Commission of India v. Shivaji (AIR 1988 SC 61) held: - "the world 'election' has been appropriately used in the Ankl with reference to the entire process consisting of several step taken for its completion which have a bearing on the result the process."
Proceeding further with the ouster clause, the Court heh that:-- "In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate two attacks of matters connected with the election proceedings; one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199, and another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of two attacks on a matter, connected with the election proceedings there is likelihood there being two inconsistent decisions; one given by the High Court and the other by the Election Tribunal which is also at independent Tribunal and this could not be the intention of the Legislature. Again the words 'except by an election petition' it Article 225 of the Constitution do not refer to the period when it can be called in question but point to the manner and the mods in which it can he called in question. It is, therefore, that the constitutional provision is expressed in the negative form to give exclusive jurisdiction to the Tribunals appointed by the Election Commissioner and thus to exclude or oust the jurisdiction of all Courts in regard to election matters and to prescribe only on mode of challenge. The purpose is not far to seek as in at democratic Constitutions such as is ours the Legislatures have an important role to play, and, therefore, it is of utmost importance that the election should lie held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage," (emphasis is ours)."
In Aurangzeb Khan's case[3], it was clearly held the said Article 225 is not capable of two interpretations in the negative phraseology has to be kept in mind. Para 5 is reproduced as under:- "9. If we look into the terminology used by the legislature while enacting Article 225 of the Constitution, we find it quite emphatic, clear and unambiguous not capable of any two interpretations. The very language therefore starts with negative phraseology which most commonly is interpreted for ousting any possibility other than on given in the Article itself That is how any law starting with negative phraseology is interpreted."
In Muhammad Hussain Babar's case[4], the question of consolidation of results as well as recounting can be agitated through election petition and not by invoking the constitutional jurisdiction of this court. Para 9 is reproduced as under:- "9. The grievance of the petitioner, notwithstanding the question of jurisdiction of the election authorities and High Court, was confined only to the extent of consolidation of result and the recount of the rejected votes, therefore we without commenting upon the merits of the case in either way dispose of this petition with direction that tithe petitioner avails the remedy of election petition under section 52 of the Representation of the People Act, 1976, before the Election Tribunal established in terms of Article 225 of the Constitution, the Tribunal at the first instance will consider the question relating to the recount or count of rejected votes, as the case may be as preliminary issue and without decision of the same in possible short time, will not proceed on merits. With the above observation, this petition stands disposed of"
In a more recent judgment of Jameel Qadir's case[5], it was categorically held that the extra ordinary jurisdiction of this court cannot be reduced to an ordinary jurisdiction of the High Court as there will be disputed question of facts which cannot be resolved. Para 13 is reproduced as under:- "13. The writ jurisdiction of the High Court cannot be worn out, as a solitary way out or remedy for aerating all sufferings and deprivations. The doctrine of exhaustion of remedies stops a litigant from pursing a remedy in a new court or jurisdiction until the remedy already provided under, the law is exhausted. The underlying principle accentuated in this doctrine is that the litigant should not be encouraged to circumvents or bypass the provisions assimilated in the relevant statute.
The extraordinary jurisdiction of the High Court under Article 199 of the Constitution cannot be reduced to an ordinary jurisdiction of the High Court. It is a well settled exposition of law that disputed questions of facts cannot be entertained an adjudicated in the writ jurisdiction; The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy."
The ground before the Election Commission of Pakistan for recounting etc. would be a grave illegality or violation materially effecting the results of elections either in some polling stations or all the polling stations of the constituency as held in Ali Asjad Malhi's case[6]. The single Bench of this court has also followed the above dicta in Muhammad Salman's case[7] and Sohail Shahzad's cases[8].
11. The Election Commission of Pakistan has also placed on record the order passed in Case No.7(2)12024-LAW-II titled Qaisara Elahi wife of Pervaiz Elahi, Lahore v. District Returning Officer NA-64 Gujrat and another order dated 10.02.2024 passed by the Election Commission of Pakistan, Case No.F.7(12)/2024-Law-III titled "Mian Muhammad Nawaz Sharif through Special Attorney Jehangir Khan Jadoon Advocate, NA-15, Mansehra and Torgarh v. Returning Officer, NA-15, Tchsil and District Mansehra dated 11.02.2024, Case No.F7(9)/2024-Law-III titled "Syed Muhammad Ali Bokhari v. Returning Officer, NA-48, (ICT-III), Islamabad dated 11.02.2024 and Case No.F7(9)12024-Law-III titled "Muhammad Shoaib Shaheen, House No.34-C, G-9/3, Islamabad v. The District Returning Officer, Islamabad etc." in which 03 members of Election Commission of Pakistan had not only issued the notices but also granted the restraining orders to argue that Election Commission of Pakistan is fully cognizant of its responsibilities which it wants to discharge promptly.
Learned counsel for the petitioner on the strength of Dr. Liaqat Ali Khan's case[9] argued that notwithstanding the right of appeal the act of Returning Officer of preparing of form 47 in the absence of the petitioner was an illegal exercise of the power, therefore, can be questioned in a constitutional jurisdiction. However, in the same judgment at page 1643 it was held that if there was no ordinary remedy available, the extra ordinary remedy of the constitutional jurisdiction could be invoked. Relevant extract is reproduced as under:- ".........It is settled law that if a wrong done by a public functionary to a person cannot be undone through an ordinary remedy, the extraordinary remedy of writ petition can be invoked............"
However, in. the present case the remedy of filing a representation under sections 8, 9 and 15, 95 and 9 of the Elections Act, 2017 read with Article 218(3) is an adequate remedy available to the petitioner.
13. Besides, the contesting parties have taken divergent stands in respect of associating the petitioner, a candidate, in the consolidation process; whether Form 47 was or not manipulated; consolidation of results in form 47 was made in the absence of the petitioner or not; whether or not receiving/issuing notice to the petitioner was prior to the preparation of form 47 are all disputed questions of fact, which cannot be resolved in the exercise of constitutional jurisdiction under Article 199 of the Constitution. However, at this stage, it will be important to mention that after preparation of form 47, a notice is required to be issued for preparation of Form 48 under the Elections Act, 2017 and the Rules made thereunder. The case of the Election Commission of Pakistan is that the notice will be issued to the petitioner prior to the preparation of form 48. This also brings this court to the following conclusions:- i) This Constitutional Petition is not maintainable and is therefore dismissed. ii) The petitioner may always file a representation under sections 8, 9, 15, 95 of the Elections Act, 2017 read with Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973 before the Election Commission of Pakistan. iii) The consolidation of the result whether made in presence or absence of the petitioner will be resolved by the Election Commission of Pakistan while deciding the matter, if agitated before ECP. A prompt decision by the ECP will be in the spirit of Articles 218(3) and 224 of the Constitution by strictly complying the provisions of Elections Act, 2017.
14. In view of the reply submitted by the Returning Officer in which he has tendered unconditional apology and has narrated the fact that due to the hectic labour during the election of 03 days, he was exhausted and could not appear in time.
1. Civil Appeal No.142 of 2019 titled Zulfiqar Ali Bhatti v. Election Commission of Pakistan and other 2024 SCMR 997
2. Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others reported as 2015 SCMR 233 [3]Aurangzeb Khan v. Election Commission of Pakistan, Islamabad through Secretary and others reported as PLD 2010 SC 34
4. Muhammad Hussain Babar v. Election Commission of Pakistan, through Secretary and others reported as PLD 2008 SC 49
5. Jameel Qadir, Muhammad Asif Batoch v. Government of Balochistan, Local Government, Rural Development and Agrovillers Department, Quetta through its Secretary and others 2023 SCMR 1919
6. Ali Asjad Malhi v. Ms. Syeda Nosheen Iftikhar and others reported as PLD 2023 SC 1
7. Muhammad Salman v. Election Commission of Pakistan, Islamabad and others reported as 2019 CLC 1069
8. Sohail Shahzad v. Chief Election Commission of Pakistan and 4 others reported 2023 MLD 602
9. Dr. Liaqat Ali Khan and another v. District Returning Officer, District Sargodha and 3 others reported as 2002 SCMR 1632