Voting at polling station

2013 SCMR 1676 SUPREME-COURT Judicial Precedent

S. 39Constitution of Pakistan, Arts. 225, 185(3) & 199Election for seat of Provincial AssemblyVoting at polling station

Miscalculation, omissions and arithmetical errors by Presiding Officer at the time of formulation of consolidated result

Constitutional petition filed before the High Court seeking recount of votes casted at a polling station

Maintainability

Petitioner and respondent contested for seat of Provincial Assembly

After consolidation of results petitioner was shown to have bagged 15743 votes, while respondent got 15640 votes

Respondent filed applications before the Presiding Officer and District Returning Officer seeking recounting of votes at a polling stations on the basis that there were miscalculation, omissions and arithmetical errors at the time of formulation of consolidated result

Said applications were not adjudicated upon by the Election Commission of Pakistan, whereafter respondent filed a constitutional petition before the High Court seeking recounting of votes

High Court allowed the constitutional petition and directed that recounting of votes should be conducted and notification (of successful candidate) should be notified only after recounting of votes casted at the polling station

Contention of petitioner was that prior to filing constitutional petition before the High Court respondent had already submitted applications to the Presiding Officer and District Returning Officer alleging that results at different polling stations had not been properly given; that in such circumstances High Court should not have interfered in the proceedings of the Election Commission of Pakistan in view of the bar under Art. 225 of the Constitution, and that only remedy available to the respondent was to file an election petition before the Election Tribunal, thus the constitutional petition filed before the High Court was not maintainable

Contention of respondent was that on account of miscalculation and arithmetical errors which crept in at the time of formulation of consolidated results, he immediately filed applications before the Presiding Officer and District Returning Officer, which remained pending before the Election Commission and were not considered; that in such circumstances he filed constitutional petition, which was in the form of mandamus, seeking a direction to the Election Commission of Pakistan for recounting of votes

Validity

Constitutional petition filed by the respondent before the High Court was in the form of mandamus seeking issuance of direction for deciding his applications which were filed before the Presiding Officer and District Returning Officer to rectify erroneous and arithmetical errors

Since said applications of respondent were not attended to by the Election Commission, therefore, the High Court accordingly issued directions to the Election Commission in such regard and to issue a final notification

Said direction by High Court did not amount to disenfranchising the petitioner, therefore, constitutional petition filed by respondent was not barred under Art. 225 of the Constitution

After recounting of votes respondent was declared as the successful candidate and a notification in such regard was also issued, therefore, bar of Art. 225 of the Constitution would now apply (to the petitioner), on account of which an election petition was required to be filed before the Election Tribunal

Petition for leave to appeal was dismissed accordingly.