ABDUL REHMAN KHAN KANJU vs ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad S

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ABDUL REHMAN KHAN KANJU VS ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad S. 95(5) [as substituted vide the Elections (Second Amendment) Act, 2023]---Recounting of ballot papers---Returning Officer, powers of---Scope---Counsel for the petitioners contended that in view of the amendment in Section 95(5) of the Elections Act, 2017, vide the Elections (Second Amendment) Act, 2023, whereby, while omitting the words "Returning Officer considers such request as not unreasonable" the discretion vested in the Returning Officer for the recount of the ballot papers had been taken away, and, therefore, under the amended provisions, the Returning Officer had no discretion to refuse the recount of poll if the requirements as mentioned under Section 95(5)(a) and (b) were met---Validity---Petitioners had misinterpreted Section 95(5) of the Elections Act as it stood post Elections (Second Amendment) Act, 2023---As an effect of the Amendment brought about in August, 2023, the Returning Officer's discretion to out rightly refuse any application on the basis of it being "unreasonable" was taken away by the legislature, however, he still enjoys the powers to entertain an application and either to accept or reject the same on the basis of the record as well as the merits of each case at hand---Words of Section 95(7) of the Elections Act employ the words "provided where the Returning Officer recounts" clearly show that the Returning Officer has discretion as to whether he will accept or reject the application from a contesting candidate regarding recount of votes---It cannot be the intention of the legislature to treat the office of a Returning Officer as a post office, where, on mere receipt of application(s) for the recount of polls, even without disclosing any valid reasons or instances of malpractice etc., he shall allow the same in a mechanical manner, without any application of mind, whereas, such order is appealable before the Election Tribunal through election petition---If no discretion is left with the Returning Officer, then it will render the whole election process in respect of all the constituencies at thousands of polling stations subject to recount on merely filing application(s) to this effect, and would thus bring the entire election process under serious dispute---Impugned judgments/orders passed by the High Court did not suffer from any factual error or legal infirmity, therefore, did not require any interference by the Supreme Court---Accordingly petitions were dismissed and leave to appeal refused.

ABDUL REHMAN KHAN KANJU vs ELECTION COMMISSION OF PAKISTAN through Secretary, Islamabad S — 2024 SCMR 1902 SUPREME-COURT

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