ISLAMABAD: The Supreme Court has held that the Election Commission of Pakistan (ECP) has no power to order re-poll in the polling stations on the ground of tampering made with the election record.
A three-member bench of the apex court headed by Chief Justice Umar Ata Bandial and comprising Justice Syed Mansoor Ali Shah and Justice Ayesha A Malik announced judgment on election matter regarding NA-91 Sargodha-IV held on July 25, 2018.
“The Election Commission had no power to order a re-poll is the 20 polling stations, under Article 218(3) of the Constitution read with Section 8(C) or Section 9(1) of the Elections Act, on the ground of tampering made with the election record after the consolidation of the final result of the poll by the Returning Officer (RO) under Section 95 of the Elections Act,” said a 17-page judgment authored by Justice Syed Mansoor Ali Shah. The court held that the ECP’s impugned order is not sustainable and is liable to be set aside by this court.
“Needless to restate the well-settled principle that if a court, tribunal or authority not having jurisdiction wrongly assumes and exercises such a jurisdiction and makes an order without jurisdiction, an appeal lies from that order in the same manner as an appeal lies from an order with jurisdiction,” the court held. The court allowed the appeal of the appellant and set aside the disputed order.
The re-poll held in pursuance of the impugned order and the subsequent notification of the respondent as a returned candidate are quashed, the verdict said, adding that the respondent would be de-notified, while the appellant re-notified as a returned candidate.
The court noted that the background facts of the case in which the said question has arisen for its consideration are that Zulfiqar All Bhatti (appellant) and Amir Sultan Cheema (respondent), along with several other candidates, contested the general election of 2018 for the membership of the National Assembly of Pakistan from the constituency of NA 91- Sargodha-IV. The court noted that in the poll held on 25-07-2018, the Zulfiqar All Bhatti secured 1,10,654 votes and the Amir Sultan Cheema 1,10,567 votes. Cheema made an application, on 27.07.2018, to the Returning Officer for recounting the votes, under Section 95(5) of the Elections Act 2017.
The Returning Officer dismissed the application on 29.07.2018 and consolidated the final result of the poll on that day. On 30.07.2018, Cheema filed a petition before the ECP for setting aside the order of the RO and accepting his application for recounting the votes.
The ECP, by its order dated 31.07 2018, disposed of the his petition while directing him to approach the appropriate forum (Election Tribunal) through an election petition, for the redressal of his grievance.
Cheema, however, challenged the RO and ECP orders in the Lahore High Court (LHC) through a writ petition.
The LHC allowed the writ petition on 03 08 2018, set aside the order of the RO and directed him to undertake the recount of the votes in the polling stations to be indicated by the Cheema.
Bhatti then challenged the LHC order in the Supreme Court through a petition for leave to appeal. This court, vide its order dated 10.08.2018, granted the leave, suspended the operation of the impugned order and directed the ECP to issue the notification of Bhatti as a returned candidate, which was issued on the same day.
Given the issuance of the said notification, the Cheema filed the election petition before the Election Tribunal on 19.09.2018. However, during the pendency of the election petition, the apex court disposed of the appeal of the Bhatti directing the RO to recount the votes of the whole constituency and submit a report of the recount to the ECP. The court noted that in the course of the proceedings of the recount, the RO found that the election record (seals of gunny bags and poling bags, and stamps on ballot papers) of 20 polling stations had been tampered with, after the consolidation of the final result of the poll. He, therefore, declined to consolidate the result of the recount and reported the matter to the ECP. He also advised the Cheema to approach the Election Tribunal where his election petition was then sub judice.
On the RO report, the ECP constituted a technical inquiry committee to carry out the probe. The inquiry committee in its report dated 09.01.2019 endorsed the fact reported by the RO regarding tampering with the election record.
On the basis of the report, the ECP made an order to hold a re-poll in the 20 polling stations of which record had been tampered with.
Bhatti challenged the ECP order in the Islamabad High Court. The IHC dismissed the writ petition on the ground that the he had availed the alternate statutory remedy of appeal before the court, and observed that Bhatti may re-agitate the matter in writ jurisdiction if his appeal filed in the Supreme Court.
The judgement said that a reading of Section 88 shows that the tampering with the ballot box relates to the polling day, not after that. Secondly, the ECP power to direct a fresh poll at the relevant polling station is not to be exercised if the commission is satisfied that the result of the election has been determined by the polling that has already taken place at that polling station (before stopping the poll by the Presiding Officer), along with the result of the polling at other polling stations in the same constituency.
In the present case, as per the report of the RO as well as the report of the ECP inquiry committee, the tampering with the election record had taken place not on the polling day, rather it was made after the consolidation of the final result of the poll by the RO under Section 95 of the Elections Act. The impugned order passed by the ECP can, therefore, not sustain within the scope of the provisions of Section 88 of the Elections Act. In the present case, the bar of exercising the powers by the ECP before the expiration of 60 days after publication of the name of Bhatti as a returned candidate under Section 98 of the Elections Act, was not attracted as the said publication had been made under an interim order of the Supreme Court.
However, as the illegality of tampering with the election record had been committed, in the present case, after the consolidation of the final result of the poll by the RO under Section 95 of the Elections Act, the ECP could not have invoked and exercised its power under Section 9(1) of the Elections Act; for such illegality had not affected the result of the poll already consolidated by the RO under Section 95 of the Elections Act. The apex court held that without deciding that fact, ordering a re-poll in 20 polling stations is tantamount to punishing winning candidate without determining his fault.
“In such an uncertain situation, the Election Commission should not have vitiated the official acts of the election officials, which were the counting of votes and the consolidation of the final result of the poll, as they had a presumption of regular performance as per Article 129(e) of the Qanun-e-Shahadat 1984. The impugned order is, therefore, not sustainable under Section 9(1) of the Elections Act.