MIAN SHAKIRULLAH JAN, J.---The question involved in this Constitutional petition, is that whether the Election Commission on "the application under section 103-AA of the Representation of the People Act, 1976" (hereinafter referred to as the Act) can decide "that the Returning Officer should be directed under section 39 (6)(b) to carry out the recount of votes. "
2. The petitioner contested the election for membership of the Provincial Assembly. N.-W.F.P. From Constituency No.PF-31 Hangu. Initially he was declared unofficially as returned candidate with a difference of 165 votes. Respondent Trio 1, Pir Haider A.I Shah, submitted an application on 4-2-1997 to the District Returning Officer for recount of the votes in four polling stations mentioned in the application and for the rest he specifically mentioned in the application to have no objection. In consequence of the .Said application the Returning Officer, at the time of the consolidation of the result, also recounted the votes polled in the said four polling stations. The petitioner submitted his second application on 6-2-1997 to the Returning Officer for the recount of the votes in all the polling stations but this time his this application was rejected by the Returning Officer mainly on the ground that as he, respondent No. 1, had expressed his no objection over.' the result of other polling stations except the four mentioned in his earlier application. Respondent No.4 dissatisfied with the order, then approached the Election Commission through an application making a prayer for the rectification of the illegalities committed in the count by recounting the votes polled on the basis of which the impugned order dated 16-2-1997 was passed. It is pertinent to mention here that the notification was issued by the Election Commission, as stated, on 14-2-1997 whereby the petitioner was shown as a returned candidate (copy of the Gazette Notification placed on the file bearing the date 15-2-1997, as a fax date). The petitioner also received a letter dated 15-2-1997 from the Deputy Commissioner informing him to attend the session of the Provincial Assembly to be held on the 19th of February, 1997. A reference has been made in this letter of the Provincial Assembly N.-W.F.P.
Dated 13-2-1997 whereby the Deputy Commissioner was asked to inform the petitioner about the session of the Assembly. The impugned order was passed on 16-2-1997 as it bears the said date and it is this order against which the petitioner has approached this Court through the present Constitutional petition.
3. Pre-admission notices were also issued to the respondents and after hearing the parties the writ petition was admitted to regular hearing. The averments made in the writ petition were not controverted through any reply/written statement/comments and the facts as stated in the writ petition will be taken as correct subject to any objection on good grounds, may be, advanced, during the course of hearing of the writ petition which with regard to various dates was none.
4. The main contention of the learned counsel for the petitioner was that once the petitioner had been declared as a returned candidate and a Notification had been issued in that respect then the Election Commission becomes functus officio and could not passs the impugned order for the recounting of votes which contention was controverted by the learned counsel for the respondents that as the order had been passed on the application of respondent No. l and in which the illegalities had been alleged and on the basis of which such an order could have been passed.
The- application submitted before the Election Commission by respondent No.1 was not on the file of the writ petition, however, during the course of hearing of the writ petition, it was submitted by the learned counsel for respondent No. 1. The petitioner's counsel justified the non-filing of the said application with the writ petition on the ground that the impugned order was passed in his absence and moreover, he could not get the copy of the said application despite of his best efforts.
5. The very impugned order, the relevant portions of which have been reproduced in para. No.1 above, indicates that the Election Commission has exercised the jurisdiction by invoking the provisions of section 103-AA of the Act and directions were issued for recounting of the votes, under the provisions of section 39(6)(b) of the Act. The question which pose itself for consideration, as mentioned in para. No. 1 above, is that whether the Election Commission can issue directions for recounting of the votes under section 103-AA of the Act and particularly when a Gazette Notification has been issued with regard to the successful candidates. If a reference is made to section 103-AA it contemplates that the Election Commission is having the power to declare the election as void within sixty days after the publication of the Notification but with certain pre-- conditions. i.e. When grave illegalities or violations of the law and rules are found and which are also apparent on the face of the record. Here in this case the impugned order reveals that no illegalities or violations of the law or rules were found to have taken place by not making a reference in that respect and that the election has also not been declared as void but only a recount was ordered under section 39(6)(b) of the Act. Though the allegations of illegalities were alleged in the application but those were of general nature with a further elaboration that the postal ballot-papers were not properly dealt with and with the allegations of the exclusion of valid ballot-papers and inclusion of the invalid and at the end with a prayer that in view of the apparent illegalities in the count of the ballot--papers and the same can be rectified by the recounting".
Though the Election Commission can exercise the jurisdiction under section 103-AA of the Act suo motu when the "illegalities" or "violation of the law and rules" are brought to its notice and "apparent" on the face of the record irrespective of any application by any person. If the application filed by respondent No. l is to be taken of no consequence with regard to the illegalities as alleged whether mentioned or not therein, even then the impugned order by itself does not speak of the abovementioned pre-conditions i.e. Illegalities, violation of the law and rules as envisaged by section 103-AA of the Act and the declaration of the election in the constituency as void. The learned counsel for the respondent No. l insisting upon the allegations made by him in the application, submitted to the Election Commission, by stating that the commission of illegalities have been mentioned therein but when asked about the satisfaction of respondent No. l with the impugned order passed by the Election Commission, the answer was in the positive and thus the respondent No. l was not aggrieved of the order by not passing the one as contemplated by section 103-AA of the Act on the basis of illegalities mentioned by him in the application and to which no. Reference was made at all in the impugned order. Hence apart from the fact that the averments made in the application by respondent No. l are of no consequence as no illegalities of the type as required under section 103-AA of the Act were mentioned therein, the non-challenging of the impugned order by respondent No-1 and his satisfaction with the said order, the assertion made in the application would be of no help to him.
6. As discussed above, the Election Commission cannot exercise jurisdiction after the publication of the Notification in the official Gazette with regard to the etection showing therein the returned candidates, for issuing directions for the recounting of the votes under section 39(6)(b) of the Act which, however, can be exercised under section 103-AA with the conditions and relief mentioned therein, which in the instant case are lacking. In this respect reliance can be placed on a case reported as Bartha Ram v. Lala Mehar Lal Bheel and another (1995 SCM R 684), the relevant paras. 5 and 8 are reproduced hereunder:-- "5 We have considered the arguments addressed by the learned counsel for the parties carefully.
On our independent appreciation of the relevant provisions of law and examination of the judgment relied on by the learned counsel for the appellant, we are of the view that in the instant case the only remedy for the appellant was to challenge the election of the respondent through Election Petition before the Election Tribunal constituted under the Act and his petition seeking only the recount of votes before the Election Commission after the issuance of the Notification of the name of the respondent as returned candidate was misconceived. That being the position, the High Court was fully justified in declaring the proceedings taken by the Election Commission in the petition of the appellant coram non judice.
8As regards section 103-AA, the reading of this section will also show that this section would apply when by reasons of grave illegalities or violation of the provisions of the Act or the rules the poll in any constituency is sought to be declared void. In the petition pending before the Election Commission, the allegations of grave illegalities and violation of the provisions of the Act or rules have not been levelled by the appellant. So, the petition of the appellant before the Election Commission for recounting of the votes on account of the mistake in the counting of the votes does not fall within the ambit of section 103-AA of the Act. "
7. Consequently in view of the above discussion, this writ petition is accepted, the impugned order of the Election Commission of Pakistan dated 16-2-1997 is declared to be unlawful and is hereby set aside.
8. Before parting with the judgment, however, it may be mentioned here that this order will have no effect on the rights of respondent No. l to avail any remedy available to him under the law e.g. a petition under section 52 of the Act as this order will have an effect only to exclude the impugned order out of the file.
Above are the reasons for our short order of even date.
(Sd.)
Shakirullah Jan, J.
JAWAID NAWAZ KHAN GANDAPUR, J.---I have gone through the judgment of my Lord Mr. Justice Mian Shakirullah Jan and am in respectful agreement with him that this writ petition be allowed.
However, I am adding this judgment because on some points my line of .Reasoning is not the same.
2. The bone of contention between Ghaniur Rehman, M.P.A. Petitioner on the one hand and Pir Haider A.I Shah, contesting respondent No. 1, on the other, relates to an effective issue of recount of votes. The facts of the case, stated briefly, are narrated as under:.
3. That the petitioner contested the- election for the Membership of Provincial Assembly N.-W.F.P.
From Constituency PF-31 Hangu. He was unofficially declared as returned candidate, with a margin of 165 votes; that respondent No. l on 4-2-1997, submitted an application to respondent No.3 (District Returning Officer) of votes in only four polling stations mentioned in the application and no other.
4. The said application was marked to respondent No.2 (Returning Officer) for necessary action; that respondent No.2, on 6-2-1997, held the consolidation of election results in which he recounted the votes polled in the four polling stations as requested by respondent No. l; that respondent No. l after the recount, submitted another application to respondent No.2 (Returning Officer) for recount of the entire votes polled in the Polling Stations of the constituency. The said respondent rejected the said application, prepared the consolidation statement of the result of the count furnished by the Presiding Officer, under Rule 26(1) of the Representation of People (Conduct of Election) Rules, 1977 and intimated the same to respondent No.4 (Election Commission of Pakistan) for Notification; that respondent No.4 on receipt of the consolidated result, issued notification under section 42 of the Representation of People Act, 1976 and notified the petitioner as returned candidate for the said constituency.
5. The petitioner, after the above Notification, received a letter from the Deputy Commissioner, Hangu in which he was informed that the sessions of the Provincial Assembly had been summoned on 19-2-1997 and was requested to attend the session.
6. It appears that after the rejection of his request for the recounting of the votes in the entire constituency, respondent No.1 knocked at the doors of the Election Commission (respondent No.4) by invoking the provisions of section 103-AA of the Representation of People Act, 1976. Resultantly the Commission allowed the application for total recount vide: its order dated 16-2-1997.
7. This order is now sought to be impeached in this writ petition on a variety of grounds, legal as well as factual, main amongst these are:-- firstlythat no case on factual and legal basis for recount has been made oul by respondent No. 1; secondly that the contesting respondent had himself in his earlier application dated 4-2-1997 asked for recount of votes for limited purposes i.e. In connection with only 4 (four) nominated polling stations therein; thirdly that no grave illegality or violation of provisions of the Act or the Rules framed thereunder had taken place nor was so found by the Returning Officer PF-31, respondent No.2, as is apparent from his order dated 6-2-1997; fourthly that in view of the above finding and the fact that recount was sought in respect of only four polling stations, respondent No. I' was precluded/estopped by his own conduct for making a further prayer for the recount of votes in the entire constituency; and lastly that prayer for recount could not be legally made to the Election Commission after the notification declaring the petitioner having been duly elected as Member of the Provincial Assembly, N.-W.F.P.
8. We have had the benefit of hearing Barrister Jehanzeb Rahim, Advocate learned counsel for the petitioner and Mr. Saeed Baig, Advocate learned counsel for respondent No. 1, at length and have perused the record of the case carefully.
9. At the very outset we tend to agree with the substance, in the line of arguments, advanced on behalf of the petitioner. For the jurisdiction of the Election Commission, to interfere with a matter like the one in hand arises only where it is ex facie found on facts that grave illegality or violation of law or the rules governing the electoral process, including count of votes, has occurred. A violation of such a nature will, in our considered opinion, essentially invoke the jurisdiction of the Election Commission before the Notification but definitely not thereafter. The Commission therefore becomes functus officio. If the Commission takes cognizance of a matter of the like nature, after the Notification, then in that case any order passed by it would be void ab initio, being without lawful authority and shall be consequently declared coram non judice and accordingly struck down.
10. In this view of the matter, we are supported by the following cases:- --(a) Mian Jamal Shah's case PLD 1966 Supreme Court 1.
(b) Saddruddin Ansari's case PLD 1967 Supreme Court 569.
(c) Lt.-Col. Farzand A.I's case PLD 1970 Supreme Court 98.
(d) Haji Behram Khan's case PLD 1990 Supreme Court 352.
(e)Pir Sabir Shah's case PLD 1994 Supreme Court 738.
(f) Ghulam Mustafa Jatoi's case 1994 SCM R 1299.
(g) Bartharam's case 1995 SCM R 684.
11. No counter-authorities were cited except Jawaid Hashim's case (PLD 1989 Supreme Court 396).
However, it may be pointed out that the Supreme Court had itself made certain exceptions while dealing with the case mentioned above. In Bartharam's case the Hon'ble Supreme Court 'held:-- "We have considered the arguments addressed by the learned counsel for the parties carefully. On our independent appreciation of the relevant provisions of law and examination of the judgment relied on by the learned counsel for the appellant, we are of the view that in the instant case the only remedy for the appellant was to challenge the election of the respondent through election petition before the Election Tribunal constituted under the Act and his petition seeking only the recount of votes before the Election Commission after the issuance of the Notification of the name of the respondent as returned candidat4was misconceived. That being the position, the High Court was fully justified in declaring the proceedings taken by the Election Commission in the petition of the appellant coram non justice."
12. We have, therefore, no hesitation in declaring the impugned order of the Election Commission dated 16-2-1997 void, without jurisdiction and of no E legal consequence. Resultantly- this writ petition succeeds in the above terms.
13. No order as to costs.