MALIK MUHAMMAD QAYYUM, J.--- The petitioner and respondent No.3 were candidates to a seat in the Punjab Provincial Assembly from Constituency PP-70 Jhang-10 in the elections held on 3-2- 1997. According to the unofficial result, the petitioner secured 29 votes more than respondent No.3 and, thus, succeeded in the election.
2. On the next day i.e. 4-2-1997, an application was filed by respondent No.3 before the Returning Officer (respondent No.2) praying for recount of the ballot-papers. That application was rejected on 6-2-1997 by respondent No.2 who observed that no reasonable ground for recount was made out. Respondent No.2 thereafter, proceeded to consolidate the results as required by section 39 of the Representation of the People Act, 1976 and issued a public notice declaring the petitioner to have succeeded in the election.
3. On 11-2-1997 respondent No.3 approached the Election Commission of Pakistan for recount of the ballots which was allowed by the Election Commission of Pakistan on 15-2-1997 and a direction was issued to the Returning Officer to recount the ballots. That order of the Election Commission of Pakistan has been challenged by the petitioner by filing this petition.
4. Syed Jamshed Ali, the learned counsel for the petitioner has argued that the impugned order of Election Commission of Pakistan is wholly without jurisdiction as once the Returning Officer had refused to recount the ballot---papers there was no power vested in the Election Commission of Pakistan to direct him to undertake the exercise of recount of the ballots. It has also been contended that the impugned order has been passed behind the back of the petitioner and without granting him an opportunity of being heard. It was lastly maintained that the 'order of the Election Commission of Pakistan is not supported by any reason nor does it show any application of mind to the facts of the case or the law applicable:
5. We have heard Raja Muhammad Anwar appearing on behalf of respondent No.3 as also Malik Muhammad Azam Rasool who bas appeared on behalf of Election Commission of Pakistan. Both of them have objected to the maintainability of this petition in view of Article 225 of the Constitution.
Besides defending the order on merit, Raja Muhammad Anwar further argued that in any case the impugned order is interim in nature and cannot be interfered with by this Court in the exercise of Constitutional jurisdiction. Learned counsel also emphasized that difference of votes obtained by the two candidates was about 29 votes and as such recount of the ballots was essential and necessary.
6. The first question which arises is as regards the power of the Returning Officer and the Election Commission of Pakistan of recount of the ballots once the same had been counted by the Presiding Officers. The relevant provision in this respect is found in subsection (6) of section 39 of the Representation of the People Act, 1976 which reads as under: "(a) Upon the request of, or challenge in writing made by, a contesting candidate or his election agent, if the Returning Officer is satisfied that the request or the challenge is 'reasonable.';
(b) if so directed by the Commission, in which case the recount shall be held in such manner and at such place as may be directed by the Commission."
On its plain reading, it is the Returning Officer who has to carry out recount on a request made by' the candidate if it is found to be reasonable or if he is so directed by the Election Commission of Pakistan.
7. However, clauses (b) and (c) are disjunctive and not conjunctive in nature as is evident from the use of word "or" in-between two clauses. Consequently, if request has been made for recount to the Returning Officer who has either accepted or declined it, he cannot be directed by the Election Commission to carry out the recount in the exercise of power under subsection (6)(b) of section
39. Once an order has been passed by the Returning Officer, the power under subsection (6) gets exhausted. A contrary interpretation would amount to permitting the Election Commission to set aside the order passed by the Returning Officer. Such an intention is not spelt out by the A provision itself.
8. We are aware that in certain cases the word "or" can be treated as "and" and can be read as being conjunctive and not disjunctive but that principle can be resorted to only when it is necessary to do so in carrying out the legislative intent. Ordinarily, the use of word "or" conveys the intention of the Legislature that the two clauses should be read disjunctively and it is for the person contending to the contrary to show that it should not be so read in view of the compulsion of the context in which the word "or" has been used. In the present case, no such compulsion arises nor has any been shown to exist. On the other hand, the scheme of the Act appears to be that the proceedings held after the polls must be completed as soon as possible and with minimum interference.
Once question of recount has been decided by the Returning Officer on an application filed by a party and declined, the same question cannot be re-agitated before the Election Commission of Pakistan. There is nothing in section 39(6) of A the Representation of the People Act, 1976 which empowers the Election Commission to set aside the order of Returning Officer.
9. Raja Muhammad Anwar, learned counsel appearing for respondent No.3 has, however, submitted that under section 103 of the Representation of the People Act, 1976, the Election Commission of Pakistan has the power to review the order passed by the Returning Officer. There can be no dispute that the Election Commission of Pakistan does have the power to review but the difficulties in holding that the impugned order has been passed in the exercise of review jurisdiction of the Election Commission are many; firstly that the application on the basis of which the Election Commission of Pakistan had passed the impugned order does not itself seek review of the order but on the other hand purports to be under section 39(6)(b) of the Representation of the People Act, 1976. In the application, their was neither any direct challenge to the order of the Returning Officer nor any ground for review were stated. The impugned order does not refer to the order of the Returning Officer which having not been set aside still holds the field. Be that as it may, if the Election Commission of Pakistan was minded to consider the application for-review, certainly no order could be passed without hearing the petitioner by giving him an opportunity of being heard.
10. It is an admitted position that before passing the order, the Election Commission of Pakistan did not issue any notice to the petitioner nor was he granted any opportunity to contest the application or any hearing was given to him. Learned counsel for respondent No.3 has contended that the order of the Election Commission was not adverse to the petitioner and, as such, grant of hearing was not necessary to him. We are not impressed by this contention of the learned counsel.
An order for recount can only be passed on sufficient reasons and, at least, a summary inquiry is called for. Consequently, it is essential to associate the candidate who has been declared elected, even if unofficially, a reasonable opportunity of being heard. In the present case, it was all the more essential that before allowing the application of respondent No.3, notice of the same should have been given to the petitioner as a similar request had already been declined after hearing the parties by the Returning Officer.
11. Raja Muhammad Anwar, the learned counsel for respondent No.3 then submitted that in view of serious illegalities and irregularities spelt out in the respondent No.3 s application the Election Commission of Pakistan could have directed recount under section 103-AA of the Representation of the People Act., 1976. We see no merit in this contention. Section 103-AA of the Representation p of the People Act, 1976 has neither any relevancy to the present case nor was the same invoked by the Election Commission of Pakistan or even for that matter by respondent No. 3. Furthermore, under the said section Election Commission of Pakistan has the power to declare any poll to be void. Neither respondent No.3 sought any such direction from Election Commission of Pakistan nor was any direction to that effect issued.
12. The stand taken by the learned counsel for respondent No.3 that the proceedings before the Election Commission of Pakistan were taken in the exercise of powers conferred upon the Commission by section 103-AA of the Act is not supported by Malik Muhammad Azam Rasool, learned counsel for respondent No. l (Election Commission of Pakistan) who conceded that no proceedings under section 103-AA were pending before the Commission and that the application which respondent No.3 had filed was treated to be one for recount and has since been disposed of.
Syed Jamshed Ali, the learned counsel for the petitioner has also argued that the power to recount does not flow out of section 103-AA as held by the Election Commission of Pakistan in S. Masroor Ahsan v. Syed Ali Ashraf and 11 others 1994 MLD 470.
13. Raja Muhammad Anwar, the learned counsel for respondent No.3 has, however, contended that the order of Election Commission was interim and interlocutory in nature and should be construed as calling for report after recount from the Returning Officer and that the final order is yet to be passed by the Commission under section 103-AA of the Act, 1976 during the course of which the petitioner should be granted hearing. This contention of the learned counsel. Is misconceived and is not even supported by the learned counsel appearing for Election Commission of Pakistan. A perusal of the application filed by respondent No.3 on the basis of which the impugned order has been passed clearly shows that the application was made under section 39 of the Representation of the People Act, 1976 and the jurisdiction of the Commission under section 103-AA was never invoked. Be that as it may, even according to the impugned order, the application has finally been disposed of and nothing remains to be pending before the Election Commission of Pakistan.
Moreover, the proceedings under section 103-AA are quite separate and distinct from the proceedings under section 39(6) of the Representation of the People Act, 1976. While the latter provision permits recount of the ballot-papers subject to certain conditions, under the former the election can be declared as void. It was not the case of the respondent No.3 that the election should be declared as void nor was such relief granted by the Commission.
14. There is also merit in the contention of the learned counsel for the petitioner that even if the Election Commission of Pakistan had any power to order recount it could not be exercised except on valid grounds and the reasons to be stated by the Election Commission. No reason whatsoever has been given by the Commission while accepting the request of respondent No.3 for recount which could not be ordered as a matter of course especially when the Returning Officer had found no reasonable ground to issue any direction to that effect after hearing both the parties. Section 39 of the Representation of the People Act, 1976 itself provides that the recount can only be ordered if there are reasonable grounds for issuing such a direction. This necessarily, therefore, calls for examination of the facts of each matter and the decision on the questing must be supported by reasoning. In the present case, no reason whatsoever has been given in the order passed by the Election Commission which appears to have treated the matter casually by disposing of the application on the same day on which it was moved i.e. 15-2-1997.
15. The scope of section 39 of the Representation of the People Act, 1976 was examined by the Supreme Court of Pakistan in Kanwac Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483 wherein it was laid down that recount of ballot-papers can be ordered only if the condition laid down in that section namely the Returning Officer should be satisfied that the request is reasonable was fulfilled.
It was further held that request for recount cannot be granted as a matter of right but only on the basis of good ground. Again in the case of Ch. Muhammad Din v. Abdul Qayyum and 16 others 1987 SCMR 324 it was held that recount cannot be ordered on the basis of roving inquiry nor the fact that there was only narrow difference between votes obtained by the contesting candidates is of any significance. A reference may also be made to the decision of the Election Commission of Pakistan itself in the case of S. Masroor Ahsan v. Syed Ali Ashraf Shah and others 1994 MLD 470. The judgment in that case was authored by Muhammad Bashir Jehangiri, J., presently an Honourable Judge of the Supreme Court of Pakistan. It was held that the condition that request for recount should be reasonable must not only be satisfied even when the order is to be passed by the Election Commission of Pakistan. The learned Commission also went on to hold that the fact that the difference of votes between the two candidates was narrow was not of any significance and without satisfaction of the condition of reasonableness an order of recount cannot be passed on the basis of number of votes only.
16. The next contention raised by Syed Jamshed Ali was that the averments made in the application moved by respondent No.3 did not, even if correct, make out any case for ordering the recount of the ballot-papers. It was also pointed out by the learned counsel that the application which was filed before the Returning Officer did not contain the allegations made in the second application. We are not inclined to enter into this controversy as we feel that the impugned order is not sustainable on various legal grounds as discussed above and any discussion on the merit of the case might prejudice the case of the parties before the Election Tribunal where the matter can ultimately be taken by any of the contesting candidates after the official declaration of the result as envisaged by section 52 of the Representation of the People Act, 1976 and Article 225 of the Constitution.
17 It is, however, interesting to notice that in almost similar circumstances the Election Commission of Pakistan had itself refused to order the recount and directed the aggrieved person to have recourse to the Election Tribunal as is obvious from a copy of the order of the Election Commission of Pakistan which has been placed on record passed in the case of Dr. Abul Hassan Ansari v.
Returning Officer (Petition No.8087 of 1997, decided on 15-2-1997) i.e. On the same day when the order impugned in this petition was passed. A copy of the application moved by the applicant in that case and that of the order passed by the Election Commission on 16-2-1997 have been placed on record as Annexures "F" and "G" to this petition.
18. Coming to the question of maintainability of this petition in view of Article 225 of the Constitution. It is to be seen that the petitioner has not challenged the election of respondent No.3 but assailed the order of the Election Commission whereby it had interfered in the matter though as already held it could not have done so especially in the manner in which it proceeded. By filing this petition, the petitioner does not call in question the election itself but rather wants performance of legal obligations by the Election Commission. Be that as it may, a Full Bench of this Court in the case of Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khosa PLD 1997 Lah. 250 has held that if the impugned order is wholly illegal and void or the illegality evident on the face of the record, Constitutional jurisdiction of this Court can be invoked.