Barkat Ali Vs Akhtar Ali & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

Appellate Tribunal for Conduct of Local Council Election 2022 (Judicial Department)

E.A No. 01-M/2025 With C.M 993-M/2025 (N) Barkat Ali vs. Akhtar Ali and others

Present: Mr. Shams-ul-Hadi, ASC for the appellant. Mr. Sanaullah, Advocate for respondent No. 1. Mr. Ataullah, AD-IT (REC Malakand) for Election Commission of Pakistan (respondent No. 20).

Date of hearing: 19.11.2025

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant Election Appeal filed under Rule 65 of the Khyber Pakhtunkhwa Local Government (Conduct of Elections) Rules 2021, the appellant has assailed the judgment dated 15.04.2025 passed by the Election Tribunal, whereby Respondent No. 1 has been declared as successful returned candidate for General Councilor 17-VC Shalpin, Khwazakhela (Swat). Consequently, the District Election Commissioner, Swat was directed to de-notify the gazette / election of Barkat Ali (appellant herein) and issue fresh consolidated statement of results of the count and publish the same in the official gazette in accordance with law.

2.Facts in brief are that the Local Government Elections for General Councilor, 17-VC Shalpin, Khwazakhela were held in the year 2022. Upon conclusion of the polling process and compilation of the results, the Returning Officer had Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

declared the present appellant as the successful returned candidate with a margin of only two votes over Respondent No. 1. It also appears from the record that 472 ballot papers had been rejected. Upon declaration of the result, Respondent No. 1 had immediately approached the Returning Officer by way of filing an application for recounting of votes. The Returning Officer, instead of giving any meaningful consideration to the extraordinary situation created by the vast number of rejected ballots vis-à-vis the tinny margin of victory, had summarily dismissed the application for recounting without assigning detailed reasons. Thereafter, Respondent No. 1 had approached the Election Tribunal through an Election Petition. During the proceedings, an application was moved by Respondent No. 1 for recounting of votes which was accepted on 30.07.2023 and thereby recounting of votes was ordered. Feeling aggrieved there- from, the appellant has filed W.P No. 577-M/2024 before this court which was heard and dismissed vide judgment / order dated 20.01.2025. After that, recounting was duly carried out under the supervision of the Election Tribunal and upon recounting, Respondent No. 1 was found to have secured the highest number of valid votes. On the basis of the recounting report and other material placed before the Election Tribunal, it had proceeded to allow the Election Petition and declared Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Respondent No. 1 as the successful returned candidate through the impugned judgment dated 15.04.2025.

3.Learned counsel for the appellant has argued that the Election Tribunal did not possess the jurisdiction or express statutory authority to order recounting of votes. He has submitted that even if it is assumed that such jurisdiction existed, the Election Tribunal could not have ordered recounting in a mechanical manner without any evidence of corrupt practice, illegality or material irregularity. According to the learned counsel, recounting is not a matter of right and must be supported by some prima facie proof of wrongdoing in the conduct of the election.

4.As against that, learned counsel appearing on behalf of Respondent No. 1 has contended that the Election Tribunal, while adjudicating an election dispute, is vested with all incidental, implied and ancillary powers necessary to reach at a just and correct conclusion. He has argued that when the Returning Officer unjustifiably refused to order recounting despite the alarming fact that 472 ballots had been rejected, whereas the margin of victory was only 2 votes, the Election Tribunal was not only justified but obliged to order recounting in furtherance of electoral fairness and transparency. He has stated that the circumstances of the case squarely attracted the principle of res ipsa loquitur (the matter speaks of itself), and therefore no further proof of irregularity was required.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

5.After hearing both sides at considerable length and perusing the record, this court finds that the first objection raised by the appellant regarding lack of jurisdiction of the Election Tribunal to order recounting is misconceived.

Although the Khyber Pakhtunkhwa Local Government Act, 2013 and the Khyber Pakhtunkhwa Local Government (Conduct of Elections) Rules, 2021 do not contain a provision parallel to Section 95 of the Elections Act, 2017 (“Act”) or to Section 39 of the erstwhile Representation of the People Act, 1976, however, election disputes are sui generis in character and the Election Tribunal is, under the scheme of the Act, empowered to decide the validity of elections. To effectively discharge this duty, the Election Tribunal is vested with inherent jurisdiction to examine ballots where circumstances so demand. The silence of the statute on the specific mechanism of recounting cannot be construed as a prohibition.

The superior courts have consistently held that where a Tribunal is vested with power to examine the legality of an election, it is also empowered to open ballot packets, inspect rejected ballots, and undertake recounting if justice so requires1. Hence, the Election Tribunal”s order cannot be questioned on the ground of jurisdiction.

‘Mir Mujib-ur-Rehman Muhammad Hassani vs. Returning Officer, PB-41 Washuk and others’ PLD 2020 SC 718 and ‘Ehsanullah Reki vs. Lt. General (R) Abdul Qadir Baloch and others’ 2010 SCMR 1271.

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

6.As regards the appellant”s contention that evidence of irregularities should have been led before recounting could be ordered, it is indeed a settled principle that recounting cannot be demanded as a matter of routine. Normally, a petitioner must establish prima facie evidence of illegality, manipulation or material irregularity in the counting process. Yet, over decades of judicial development in cases arising under the Representation of People Act and the Elections Act, principles have been evolved, i.e. where the margin of victory is exceedingly narrow and the number of rejected ballots is disproportionately high, then such circumstances themselves provide sufficient basis for recounting. The ballot papers, in such situations, constitute the primary evidence and the very magnitude of rejected ballots becomes an indicator of potential error. This is why the superior courts have repeatedly held that where rejected ballots exceed the margin of victory, recounting is not only permissible but almost mandatory in the interest of fairness and accuracy. Reliance in this regard is placed on the judgment of the Supreme Court of India rendered in the case of ‘S. Baldev Singh vs. Teja Singh Swatantar (Dead) and others’ reported in AIR 1974 SC 693, wherein it was held as follows;

“18. We frown upon frivolous and unreasonable refusals of recount by Returning Officers who forget of R.63 that allowance of recount is not the exception and refusal is restricted to cases where the demand itself is “frivolous” or Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“unreasonable”. These are strong words. The circumstances of each case decide. Where the margin of difference is minimal, the claim for a fresh count cannot be summarily brushed aside as futile or trumpery. If, as in this case, for the Sherpur segment, a uniform view, founded in legal error, has led to wrong rejection of votes, rectification by a recount on the spot, when a demand is made, would have been reasonable.”

[Emphasis supplied]

Same view was reiterated in the case of ‘H.D. Revanna vs. G. Puttaswamy and others’ reported in AIR 1999 SC 768.

Similarly, in ‘Godawari vs. Zubaida and others’ (AIR 2020 All 237) [Allahabad High Court], it was observed as under;

“14. So far as the casting of 1139 votes is concerned, the oral evidence on behalf of election petitioner is specific inasmuch as number of ballots have been clearly specified. Although elected Pradhan states that only 1129 votes have been casted but the details of ballot numbers specifically narrated on behalf of election petitioner has not been challenged. It is also not disputed that 37 votes have been declared invalid. Specific allegations have been made against the Returning Officer and Assistant Returning Officer who are alleged to have acted in collusion of the Pradhan concerned. Specific prayer for recount of votes was made before the Returning Officer but the same has been rejected. It is clear that from the very initial stages an objection was being raised by the petitioner and her election agents which includes her husband but the same was not being examined. The Returning Officer appears to have summarily rejected the request of recount and the issues framed before him have apparently not been considered. A serious triable issue has been raised on behalf of the election petitioner in respect of which necessary pleadings have also been made. Whether or not 10 votes have been less counted or 37 votes have been wrongly excluded can be conclusively established only at the time of recount of votes. Allegations to doubt correctness of Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

votes cast have been specifically made which is duly supported by the evidence led by the election petitioner. It is not a case of roving or fishing inquiry on the asking of election petitioner inasmuch as pleadings are specific and evidence has also been led in its support. Sanctity of the election process requires a further scrutiny in the facts of this case, which is possible only if a recount is ordered. Small margin of victory and large number of votes having been declared invalid is also a circumstance which cannot be brushed aside lightly in view of attending facts.”

[Emphasis added]

Viewed in that context, the present case squarely falls within that category. When the difference of votes between the returned candidate and the runner-up is only two; and the number of rejected ballots is above four hundred, the situation inherently casts doubt on the correctness of the initial count.

These facts are so striking that they attract the maxim res ipsa loquitur (the matter speaks of itself). In such a situation, it would be wholly unreasonable to require the election petitioner to produce additional evidence of irregularity when the numerical disparity itself raises a substantial and compelling presumption of potential miscount. The Returning Officer ought to have revisited the packet of rejected ballots.

His refusal to do so, without recording valid reasons, was a relinquishment of his responsibility and fully justified the Election Tribunal”s intervention.

7.It is also noteworthy that the principles applied by the Election Tribunal have now found statutory recognition in Sections 95 of the Elections Act, 2017 reflecting the evolution Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

of jurisprudence on the subject. Even though such explicit statutory language is absent in the Khyber Pakhtunkhwa Local Government Act and the Rules framed there-under, the underlying legal doctrine remains equally applicable because the fundamental objective ensuring purity of elections remains the same. Thus, the Election Tribunal had acted within established judicial standards and correctly exercised its discretion.

8.After recounting was conducted and Respondent No. 1 was found to have received the highest number of valid votes, the Election Tribunal had no other option but to give effect to the actual and corrected result. Being so, the impugned final judgment of the Election Tribunal is well-reasoned, based on correct appreciation of law and facts, and suffers from no perversity, illegality or jurisdictional defect warranting interference by this court in its appellate jurisdiction.

9.Foregoing in view, the Election Appeal is found to be devoid of any merit and is hereby dismissed.

10.These are the detailed reasons for my short order of even date.

Announced Dt: 19.11.2025 Sd/-

JUDGE

Abdul Sabooh (S.B.) Hon’ble Mr. Justice Qazi Jawad Ehsanullah