IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
PRESENT:  
MR. JUSTICE UMAR ATA BANDIAL. 
MR. JUSTICE IJAZ UL AHSAN. 
MR. JUSTICE MUNIB AKHTAR. 
 
 
CIVIL APPEAL NO.171 OF 2019 
ON APPEAL AGAINST JUDGMENT DATED 
18.12.2018 OF THE HIGH COURT OF 
BALOCHISTAN IN ELECTION PETITION 
NO.53 OF 2018. 
 
Mir Mujib-ur-Rehman Muhammad Hassani  
 
Appellant 
 
Versus 
 
Returning Officer, PB-41, Washuk & Others  
 
 
 
 
 
 
 
 
 
 
 
Respondent 
 
 
For the Appellant(s): 
 
Sardar Muhammad Aslam, ASC. 
 
 
 
 
 
Ch. Akhtar Ali, AOR. 
 
For the Respondent(s): 
Kamran Murtaza, Sr. ASC. 
 
Syed Rifaqat Shah, AOR. 
 
(For Respondent No.2)  
 
 
 
 
 
 
M. Amjad, A.D. 
 
 
 
 
 
(For the Election Commission of Pakistan) 
 
Dates of Hearing:  
 
10.12.2019 
 
 
 
 
 
11.12.2019 
 
JUDGMENT 
 
 
IJAZ UL AHSAN, J-. Through this judgment, we are 
deciding Civil Appeal No.171 of 2019 arising out of the judgment 
of the Honourable High Court of Balochistan, Quetta dated 
18.12.2018 passed in Election Petition No.53 of 2019 (the 
“Impugned Judgment”). 
CA No.171 of 2019.  
 
 
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2. 
 
Brief facts necessary for the decision of this lis are 
that the Appellant and Respondent Nos.2 to 15 were contesting 
candidates for a seat in the Provincial Assembly of Balochistan 
from PB-41 (Washuk), during the general elections held on 
25.07.2018. The Appellant secured 12588 votes and Respondent 
No. 2, who attained the highest number of votes in the contest, 
secured 12807 votes while the remaining candidates only 
secured nominal amounts of votes. On 27.07.2018, the Appellant 
wrote to the concerned Returning Officer (Respondent No.1) for a 
recount of the votes cast in the entire constituency under section 
95(5) and (6) of the Elections Act, 2017 (the “Act”). This 
application was rejected by Respondent No.1 on 28.07.2018, 
holding that: 
“As per section 95(5) of Elections Act,2017, it is not in the 
domain of the R.O to recount the votes of the entire 
constituency, hence, the application in hand is hereby 
rejected.”  
 
3. 
 
Aggrieved by the aforenoted order of Respondent 
No.2, the Appellant approached the Election Commission of 
Pakistan (“ECP”) and filed two petitions: the first under section 
95(6) of the Act for a recount of the votes cast in the entire 
constituency and the second to seek inclusion/counting of votes 
cast in two polling stations, namely Polling Station Nos.44 and 
45. Since consolidation had been completed in PB-41, the first 
CA No.171 of 2019.  
 
 
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petition was dismissed by the ECP vide order dated 01.08.2018 
with the following observation: 
“I am directed to refer to the subject noted above, and to 
convey that since the consolidation has been completed in 
PB-41, Washuk and form-49 has been received, therefore, 
the applicant/petitioner may approach the appropriate forum 
through an election petition, if so desired.” 
 
4. 
 
On 04.08.2018, the Appellant filed Constitutional 
Petition No.1013 of 2018 before the High Court of Balochistan 
seeking a recount in PB-41 on the grounds that many of the 
rejected ballots were valid and that there had been rigging and 
mismanagement during the elections, whereby many of the 
postal ballots received by the cut-off date were also rejected on 
flimsy grounds. This petition was disposed of by the Balochistan 
High Court vide order dated 15.08.2018, with the observation 
that since the same matter was also fixed before the ECP, it may 
be decided at the earliest. 
 
5. 
 
Finally, the ECP vide its order dated 11.09.2018, 
decided the matter in response to the petition filed by the 
Appellant seeking inclusion/recount of votes cast in Polling 
Station Nos.44 and 45 together with another petition filed by a 
candidate for the national assembly seat (NA-270) in the same 
area. The ECP noted the ambiguities present in the case and 
irregularities between the accounts and comments received from 
CA No.171 of 2019.  
 
 
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the different Presiding Officers and the Returning Officer and 
ordered the votes from these polling stations to be discarded and 
fresh polls to be conducted in Polling Station Nos.44 and 45. 
Aggrieved by this order, several parties approached this Court in 
appeal, including the Appellant through CA No.1102 of 2018. All 
the appeals were dismissed through a combined order of this 
Court dated 01.10.2018, whereby it was held that: 
“The reasons recorded by the learned Election Commission of 
Pakistan for re-poll of Polling Stations No.44 and 45 with 
respect to PB-41 and NA-270 are absolutely apt and cogent 
and in accordance with the jurisdictional authority vested 
with it.” 
 
6. 
 
In accordance with ECP’s order dated 11.09.2018, 
which was upheld by this Court, fresh polls were conducted in 
Polling Station Nos.44 and 45 on 07.10.2018. While no votes 
were cast in Polling Station No.45, after adding up the votes from 
Polling Station No. 44 the Appellant secured a total of 12705 
votes while Respondent No.2 secured 13040 votes and again 
maintained his lead – this time by a margin of 335 votes. On 
15.10.2018, Respondent No.2 was notified as the Returned 
Candidate vide Notification No.F.2(37)/2018-Cord(1). In response 
to this, the Appellant approached the Election Tribunal of the 
High Court of Balochistan through Election Petition No.53 of 
2018 which was dismissed vide the Impugned Judgment against 
CA No.171 of 2019.  
 
 
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which the Appellant has now approached this Court in the 
present Appeal. 
 
7. 
 
Learned Counsel for the Appellant has extensively 
argued the matter. His primary contention is that under section 
95(5) of the Act, it is mandatory for a Returning Officer to 
recount votes if a request has been made by a contesting 
candidate, 
before 
the 
commencement 
of 
consolidation 
proceedings, in an election where the margin of victory was less 
than five percent of the total votes polled or ten thousand votes, 
whichever was less. As such, he has argued that Respondent 
No.1 could not have rejected the Appellant’s request for a recount 
in the entire constituency, given that Respondent No.2’s margin 
of victory fell well within the threshold provided in section 95(5) 
of the Act, vide his order dated 28.07.2018. Consequently, he 
asserts that the Election Tribunal was required in law to direct 
recount of the votes or at least the rejected votes. 
 
8. 
 
Learned Counsel for the Appellant has also alleged 
that several irregularities and unlawful practices took place 
during the election, including instances of the Appellant’s polling 
agents not being allowed to witness counting, the casting of 
bogus votes, intimidation of voters by Respondent No.2 and his 
agents, etc. As a result, he contends that the Impugned 
Judgment be set aside, directions should be issued for 
CA No.171 of 2019.  
 
 
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recounting of the votes, and given the alleged unlawful practices 
and irregularities, the election of Respondent No. 2 should be 
declared null and void and the Appellant be declared the 
Returned Candidate instead.   
9. 
 
On the other hand, Learned Counsel for Respondent 
No. 2 has argued that there are no presumptions in favor of the 
Appellant in law or fact and the onus lies upon him to prove 
every fact that he has alleged in his pleadings as per Articles 117 
to 119 of the Qanun-e-Shahadat Order, 1984. It is his contention 
that the Appellant during the proceedings and in his pleadings 
has failed to prove whether his original application for a recount 
before the Returning Officer was even filed before the 
commencement of any consolidation proceedings, as required by 
section 95(5) of the Act, and whether any of the illegal activities 
and unlawful practices alleged by the Appellant even took place 
in the manner described by him.  
 
10. 
 
In any case, Learned Counsel for Respondent No.2 
has argued that the Appellant did petition the High Court of 
Balochistan challenging the order of the Returning Officer dated 
28.07.2018 (rejecting the application for a recount in the entire 
constituency), but the same was disposed of on 15.08.2018, with 
the consent of both parties and with a direction to the ECP to 
decide the matter. After the ECP ordered re-polls in two polling 
stations vide its order dated 11.09.2018, the Appellant assailed 
CA No.171 of 2019.  
 
 
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the order before this Court and the same was upheld vide order 
dated 01.10.2018. As a result, Learned Counsel for Respondent 
No.2 asserts that the matter has attained finality and the 
Appellant by not pressing the matter, first before the High Court 
and later by not moving another application after the re-polls 
conducted on 07.10.2018, has abandoned his plea and cannot 
rely on the same at this stage. 
 
11. 
 
Learned Counsel for Respondent No.2 has pointed out 
that since the earlier plea was abandoned by the Appellant, at 
this stage the only procedure for obtaining a recount was 
through the Election Tribunal under section 101 of the Act read 
with rules 139 and 150 of the Election Rules, 2017. However, he 
argues that to avail this remedy the Appellant’s election petition 
before the Election Tribunal should have complied with the 
requirements set out in sections 144 and 145 of the Act, which 
the Appellant failed to meet. To this end, Learned Counsel for 
Respondent No.2 has relied on the Impugned Judgment and the 
requirements outlined in section 144(1)(b) of the Act to point out 
that the Appellant’s election petition was patently deficient and 
non-proceedable, did not contain a precise statement of material 
facts, full particulars of corrupt and illegal practices, names of 
the parties involved with dates and venues, etc. as per 
mandatory requirements of the law. 
 
CA No.171 of 2019.  
 
 
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12. 
 
Lastly, Learned Counsel for Respondent No.2 has 
relied on the judgments of this Court, wherein principles 
concerning the recount of votes before the Election Tribunal have 
been laid out. He has argued that even though these principles 
were laid out when the old law, the Representation of the People 
Act, 1976 (“ROPA”), was in place they continue to hold field 
today since the legislature has not made anything mandatory on 
the Election Tribunal with respect to recounts in the new law (the 
Act). To this end, he has placed reliance on the judgments of this 
Court in Jam Madad Ali v. Asghar Ali Junejo (2016 SCMR 251), 
Ch. Muhammad Ashraf Warraich v. Muhammad Nasir Cheema 
(2016 SCMR 998), and Syed Khaliq Shah v. Abdul Raheem 
Ziaratwal (PLD 2017 SC 684). 
 
13. 
 
We have heard the Learned Counsel for the parties at 
length and have also perused the available record. At the very 
outset, a distinction must be drawn between the first round of 
litigation – which was initiated by the Appellant after the general 
elections were held on 25.07.2018 and ended with the order of 
this court dated 01.10.2018, wherein ECP’s order dated 
11.09.2018 was confirmed – and the second round of litigation – 
which was initiated by the Appellant through an election petition 
filed after re-polling in Polling Station Nos.44 and 45 of PB-41 on 
07.10.2018 – wherefrom this present Appeal has arisen. This 
distinction becomes particularly important as we look at the 
CA No.171 of 2019.  
 
 
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pleas taken by the Appellant at various stages before several fora 
during this controversy.  
 
14. 
 
It is a matter of record that the Appellant did request 
a recount in the entire constituency following the results of the 
general elections held on 25.07.2018, under section 95(5) of the 
Act. After his request was rejected by the Returning Officer on 
28.07.2018, the Appellant approached the ECP to ask for a 
recount under section 95(6) of the Act and, through a separate 
application, to also seek inclusion/counting of the votes cast in 
Polling Station Nos.44 and 45. The Appellant’s first application, 
for a recount, was dismissed by the ECP on 01.08.2019 due to 
the fact that consolidation proceedings had been completed in 
PB-41, against which the Appellant filed a constitutional petition 
before the High Court. The record also shows that this petition 
was disposed of on 15.08.2018, with the consent of both sides 
and with directions to the ECP, which was already considering 
the matters raised in the Appellant’s second application, to 
decide the same at the earliest. Consequently, when the ECP 
passed its order on 11.09.2018 directing that re-polls be 
conducted in the two polling stations in question, the Appellant 
also challenged it before this Court vide CA No.1102 of 2018. 
This Appeal was dismissed by this Court on 01.10.2018 and the 
ECP’s decision was confirmed, and hence attained finality. 
 
CA No.171 of 2019.  
 
 
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15. 
 
As 
pointed 
out 
by 
the 
Learned 
Counsel 
for 
Respondent No.2, we note that during this course of events the 
Appellant of his own accord chose to not press the matter of 
recount, which was decided by the ECP on 01.08.2018, and 
hence abandoned this plea. In any case, when the matter was 
finally decided 
by the 
ECP on 11.09.2018, wherein it 
comprehensively looked at the allegations made by the Appellant 
and solicited explanations and comments from all concerned, the 
Appellant approached this Court in Appeal and the same was 
dismissed. At this point, the Appellant did have the avenue of 
Review, against the order dated 01.10.2018 of this Court, but he 
chose not to exercise it and hence our judgment on the matter 
attained finality. With this culmination of the first round of 
litigation initiated by the Appellant, the issues raised by the 
Appellant therein have now become a past and closed 
transaction inter se the parties to the lis and cannot now be re-
agitated. 
 
16. 
 
It is, however, true that section 142 of the Act, 
entitles the Appellant to file an election petition within forty-five 
days of the publication of the name of the returned candidate to 
challenge the election. Once Respondent No.2 was notified as the 
Returned Candidate on 15.10.2018, the Appellant did indeed file 
an election petition on 06.11.2018 before the Election Tribunal of 
the High Court of Balochistan, which was dismissed vide the 
CA No.171 of 2019.  
 
 
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Impugned Judgment. However, given that the matters arising out 
of the earlier election had already been challenged by the 
Appellant and had attained finality, the Appellant cannot be 
allowed to now re-agitate the same matters by means of an 
alternative remedy that was not resorted to earlier. If this was 
allowed, it would go entirely contrary to the “doctrine of election” 
which exists to ensure that once a litigant has made the choice of 
pursuing a certain course of action available to him or has 
abandoned a certain plea/action, that he is not allowed to reopen 
the same matter only because he has received unfavorable 
results as a result of his first choice. This principle has been 
elaborated by this Court on various occasions. Reliance may be 
placed on Trading Corporation of Pakistan v. Devan Sugar Mills 
Limited (PLD 2018 SC 828), where it was explained that: 
“The moment suitor intends to commence any legal action to 
enforce any right and or invoke a remedy to set right a 
wrong or to vindicate an injury, he has to elect and or choose 
from amongst host of actions or remedies available under the 
law. The choice to initiate and pursue one out of a host of 
available concurrent or co-existent proceeding/actions or 
remedy from a forum of competent jurisdiction vest with the 
suitor. Once choice is exercised and election is made then a 
suitor is prohibited from launching another proceeding to 
seek a relief or remedy contrary to what could be claimed 
and or achieved by adopting other proceeding/action and or 
remedy, which in legal parlance is recognized as doctrine of 
election, which doctrine is culled by the courts of law from 
the well-recognized principles of waiver and or abandonment 
CA No.171 of 2019.  
 
 
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of a known right, claim, privilege or relief as contained in 
Order II, rule (2) C.P.C., principles of estoppel as embodied in 
Article 114 of the Qanun-e-Shahadat Order 1984 and 
principles of res-judicata as articulated in section 11, C.P.C. 
and its explanations. Doctrine of election apply both to the 
original proceedings/action as well to defences and so also 
to challenge the outcome on culmination of such original 
proceedings/action, in the form of order or judgment/decree 
(for illustration it may be noted that multiple remedies are 
available against possible outcome in the form of an 
order/judgement/decree etc. emanating from proceedings of 
civil nature, which could be challenged/defended under 
Order IX, rule 13 (if proceedings are ex-parte), section 47 
(objection to execution), section 114 (by way of review of an 
order), section 115 (revision), under Order XXI, rules 99 to 
103 C.P.C. and section 96 C.P.C. (appeal against the 
order/judgment) etc. Though there is no bar to concurrently 
invoke more than one remedy at the same time against an 
ex-parte order/judgment. However, once election or choice 
from amongst two or more available remedy is made and 
exhausted, judgment debtor cannot ordinarily be permitted 
subsequently to venture into other concurrently or coexisting 
available remedies.” 
 
17. 
 
While, as a result of the discussion above, we do not 
think that the question of recounting in the entire constituency 
of PB-41, Washuk, is a live issue in the present Appeal, an 
important question has been raised concerning the interpretation 
of section 95(5) of the Act, which we would like to address at this 
juncture. It has been argued by the Learned Counsel for the 
Appellant that section 95(5) of the Act mandates a Returning 
CA No.171 of 2019.  
 
 
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Officer to conduct a recount if he has been requested in writing 
by a contesting candidate to do so, provided that the threshold of 
the margin of victory provided in section 95(5) is met. For ease of 
reference, section 95(5) of the Act is reproduced below: 
“(5) Before commencement of the consolidation proceedings, 
the Returning Officer shall recount the ballot papers of one or 
more polling stations if a request or challenge in writing is 
made by a contesting candidate or his election agent and the 
margin of victory is less than five percent of the total votes 
polled in the constituency or ten thousand votes, whichever 
is less, or the Returning Officer considers such request as not 
unreasonable:  
Provided that the recount shall be made by the Returning 
Officer only once.”  
 
18. 
 
From a plain reading of the provision, it is quite clear 
that the Returning Officer is empowered to recount the ballot 
papers of “one or more polling stations” only before consolidation 
proceedings have commenced. Furthermore, it is also clear that 
such a recount can only be triggered on the written request of a 
contesting candidate (or his election agent) in an election where 
the margin of victory was less than five percent of the total votes 
polled or ten thousand votes, whichever was less. However, once 
the words “or the Returning Officer considers such request as not 
unreasonable” at the end of the sentence are read along with the 
remaining conditions it becomes clear that ‘such’ an application 
for a recount must be considered reasonable by the Returning 
Officer in addition to meeting the other pre-conditions imposed 
by the provision. To our mind, this is the correct reading of 
CA No.171 of 2019.  
 
 
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section 95(5) of the Act based on the linguistic construction of 
the sentence, which makes it abundantly clear that the last part 
of the sentence (concerning reasonableness) is to be read 
conjunctively with the remaining conditions imposed on an 
application for a recount to qualify. With this interpretation in 
mind, therefore, in order for the Returning Officer to order a 
recount under section 95(5) of the Act, (i) a written application 
must be made by a contesting candidate or his election agent 
before the commencement of consolidation proceedings, (ii) the 
application must be in relation to an election where the margin of 
victory was less than five percent of the total votes polled in the 
constituency or ten thousand votes, whichever was less, and (iii) 
the Returning Officer must consider such a request to be 
reasonable (or not unreasonable as the law states). Once all 
these conditions have been met, only then will a Returning 
Officer order a recount in “one or more polling stations”. 
 
19. 
 
It is important to note, however, that a similar 
provision existed in the old law, section 39(6) of ROPA that 
preceded section 95(5) of the Act, as well. Section 39(6) of ROPA 
stated that: 
“(6) The Returning Officer may recount the ballot papers-  
(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; or  
CA No.171 of 2019.  
 
 
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(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.” 
 
From a bare reading of this provision, it is obvious that in the 
new law (section 95(5) of the Act) the legislature has sought to 
limit the situations in which applications for a recount before the 
Returning Officer can be made in the first place. The intention 
behind this quite clearly is to limit the number of frivolous 
applications for a recount made by losing candidates in 
constituencies around the country and to ensure that recounts 
are 
entertained 
by 
Returning 
Officers 
only 
in 
those 
constituencies where the margin of victory is small enough to 
justify a recount, and an objective and tentative assessment is 
made by the Returning Officers on the basis of material placed 
before them to the effect that prima facie there are grounds 
justifying a recount and the request for such recount is not 
wholly unreasonable. However, if an election does not meet the 
numerical threshold provided in section 95(5) of the Act, the law 
in section 95(6) of the Act, still provides for the ECP to order a 
Returning Officer directly to conduct a recount, if it deems the 
circumstances to be grave enough to warrant such a recount. 
 
20. 
 
In any case, however, the law does not provide a 
criterion based upon which a Returning Officer may decide 
whether a particular application is not unreasonable. The 
exercise of recounting ballot papers for any number of polling 
CA No.171 of 2019.  
 
 
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stations is a tedious and time/resource-consuming task and it 
cannot be taken up indiscriminately, carelessly, without due 
application of mind and a tentative assessment of the material 
available on record, and in cases where only vague and general 
allegations and insinuations have been made. This exercise, 
which can potentially take months to complete, can arguably 
lead to the constituency remaining unrepresented for long 
periods of time, defeating the very purpose of the law and the 
concept of democratic representation. To this end, we are clear in 
our minds that even if a request has been made by a contesting 
candidate in an election where the threshold set by section 95(5) 
is met, but the request itself does not specify any cogent reasons 
for the request along with identifying specific polling stations 
where the recount is being requested and giving credible 
materials/information, it would stand to reason that the 
Returning Officer should have the option/discretion to reject 
such a request. If this was not the case, we would have the 
absurd situation where at the request of an aggrieved candidate 
recounting takes place even at polling stations where the 
candidate in question has won or that without any allegation of 
rigging, corrupt and unlawful practices, and particulars based on 
which malpractices and rigging is being alleged, a candidate 
could still claim a recount by way of a record change and a 
fishing expedition simply showing that the margin of victory was 
less than five percent of the total votes polled in the constituency 
CA No.171 of 2019.  
 
 
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or ten thousand votes, whichever is less. If that were so, the 
phrase “or the Returning Officer considers such request as not 
unreasonable” would become redundant. It is settled law that no 
redundancy can be attributed to the legislature. 
 
21. 
 
We therefore hold that the provisions of section 95(5) 
can only be triggered after all the pre-conditions therein have 
been met and the contents of the request itself lend credence to 
the need for a recount. To ensure this, the Returning Officer 
must exercise his discretion and ascertain the reasonableness of 
the request and decide whether recounting is to take place in 
“one or more” polling stations, or not at all. A reasonable request, 
therefore, must at least contain a narrative of the events that 
gave rise to the request in the first place, the details along with 
credible material/information regarding events that may have 
caused the contesting candidate to demand the recount together 
with the names and details of any individuals alleged to be 
involved, and the specific polling stations at which the recount is 
being requested. Once all the aforenoted conditions have been 
met, then the Returning Officer must apply his mind to the facts 
and circumstances of the individual case and decide if, and in 
how many polling stations, a recount is warranted. 
 
22. 
 
It is clear and obvious from the record available 
before us, that after re-polls were conducted, according to ECP’s 
CA No.171 of 2019.  
 
 
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order dated 11.09.2018 and the order of this Court confirming 
the same on 01.10.2018, the Appellant filed Election Petition 
No.53 of 2018 before the Election Tribunal of the High Court of 
Balochistan. In this election petition, the Appellant has again 
objected to the rejection of his initial request to recount ballot 
papers in the entire constituency and has made vague 
generalized and unsubstantiated allegations regarding several 
irregularities, malpractices, and unlawful activities during the 
entire election. As we have discussed above, since the matters 
brought up by the Appellant with respect to the recount and 
ancillary unlawful and illegal activities alleged by him had 
already been litigated before, they could not be reopened and re-
examined. However, as far as the Appellant’s contentions with 
respect to the re-polling that took place in Polling Station Nos.44 
and 45 of PB-41, and the many allegations leveled by him on the 
conduct of these re-polls, we are inclined to agree with the view 
taken by the learned Election Tribunal of the High Court of 
Balochistan in the Impugned Judgment. 
 
23. 
 
The 
record 
shows 
that 
the 
allegations 
and 
insinuations made by the Appellant in his election petition were 
deficient in many respects. Section 144 of the Act provides for 
the contents of an election petition, the documents that must be 
attached with it, and the relief that can be claimed by the 
Appellant. In this respect, it is clear that the Appellant is 
CA No.171 of 2019.  
 
 
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required to provide the full particulars of any corrupt or illegal 
practices alleged by him to have taken place, the names and 
other details of the individuals he believes to be responsible for 
such practices, and the date and place of the commission of such 
practices or acts together with documentary evidence in support 
of such allegations. The Appellant has abysmally failed to provide 
these details. While the record shows that the Appellant did 
annex sixteen affidavits-in-evidence in support of his application, 
perusal of these affidavits ex facie shows that they are all 
identical and a duplicate of allegations made and details provided 
by the Appellant in every one of them. As a result, the Appellant’s 
election petition is rendered entirely deficient by virtue of section 
144 of the Act. 
 
24. 
 
The 
Appellant’s 
request 
for 
recounting 
and 
verification of the votes cast in the re-polls conducted on 
07.10.2018 in Polling Station Nos.44 and 45 of PB-41 is similarly 
deficient. The record shows that no objections were raised during 
the re-polls by the Appellant or his election agents while the 
polling took place. The Appellant has alleged that bogus votes 
were cast by supporters of Respondent No.2 during the re-polls. 
However, no objections against the casting of such votes have 
been found on the record. This is especially problematic given 
that section 86 of the Act explicitly provides for challenges to be 
CA No.171 of 2019.  
 
 
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made by candidates in such situations at the time of the 
occurrence.  
 
25. 
 
The record also shows that following the re-polls 
conducted on 07.10.2018, the Appellant filed a petition for 
recounting of votes before the ECP on 10.10.2018. However, this 
petition was withdrawn by the Appellant of his own accord 
during the pendency of his election petition which was dismissed 
via the Impugned Judgment. In these circumstances, while it is 
true that the learned Election Tribunal of the High Court of 
Balochistan did have the right to exercise its power to order a 
recount and/or verification of the votes in question we are not 
surprised that it chose to not exercise such discretion, given the 
many obvious and glaring deficiencies in the petition filed by the 
Appellant and the allegations made by him. 
 
26.   
In these circumstances, we hold that the learned 
Election Tribunal of the High Court of Balochistan, in the 
Impugned Judgment, has acted well within its powers and has 
exercised its discretion and authority fairly and correctly in 
coming to its conclusions. Based on these reasons and in view of 
the aforementioned findings and analysis of the relevant 
provisions, we find no reason to interfere with the Impugned 
Judgment. Consequently, this Civil Appeal No.171 of 2019 is 
dismissed, with costs.   
CA No.171 of 2019.  
 
 
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JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
ISLAMABAD, THE 
11th of December 2019. 
APPROVED FOR REPORTING 
MUA/* 
CA 171/2019 
 
 
Munib Akhtar, J.- I have had the advantage of reading in draft the 
judgment proposed to be delivered by my learned brother, Ijaz ul 
Ahsan, J., which has the concurrence of my learned brother, Umar 
Ata Bandial, J. While I am generally in agreement with the 
proposed judgment and certainly in accord with the view that the 
appeal fails, I am, with respect, unable to agree with the 
interpretation placed on s. 95(5) of the Elections Act, 2017 (“2017 
Act”) (paras 17-21 of the majority judgment). While perhaps those 
observations may be obiter inasmuch as it is expressly noted in 
para 17 that “the question of recounting in the entire 
constituency… is [not] a live issue in the present Appeal”, since a 
detailed analysis of the statutory provisions has been undertaken, 
I have also ventured to express my views on the same. 
 
2. 
Section 95(5) had its counterpart in s. 39(6) of the 
predecessor legislation, the Representation of People Act, 1976 
(“1976 Act”) which has also been considered in the majority 
judgment. Subsection (6) of s. 95 is also of some relevance. For 
convenience 
these 
are 
again 
reproduced 
below 
(emphasis 
supplied): 
 
Section 95: 
(5) Before commencement of the 
consolidation proceedings, the 
Returning Officer shall recount 
the ballot papers of one or more 
polling stations if a request or 
challenge in writing is made by 
a contesting candidate or his 
election agent and the margin of 
victory is less than five percent 
of the total votes polled in the 
constituency or ten thousand 
votes, whichever is less, or the 
Returning 
Officer 
considers 
such 
request 
as 
not 
unreasonable: Provided that the 
recount shall be made by the 
Returning Officer only once. 
 
(6) The Commission may, before 
Section 39: 
(6) The Returning Officer may 
recount the ballot papers— 
 
(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; or 
 
(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. 
 
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conclusion of the consolidation 
proceedings, for reasons to be 
recorded, direct the Returning 
Officer to recount the ballot 
papers of one or more polling 
stations. 
 
3. 
In essence, the majority have concluded that the word “or”, 
where appearing in s. 95(5) as emphasized above, is to be 
conjunctively. Thus, according to the majority view the subsection 
contemplates that a recount is to take place only if both the 
conditions, i.e., “the margin of victory is less than five percent of 
the total votes polled in the constituency or ten thousand votes, 
whichever is less” and “the Returning Officer considers such 
request as not unreasonable” are fulfilled and applicable together 
(see para 18). (The other conditions also mentioned in the 
subsection are, for present purposes, unexceptionable.) With 
respect, I am unable to agree. In my view, the word “or” is to be 
given its natural meaning and read disjunctively. In other words, 
the subsection contemplates two separate and distinct conditions, 
and a recount is permissible if either one of them is met.  
 
4. 
It is of course well settled that in appropriate circumstances 
the word “or” can be read as “and” and vice versa. However, in my 
respectful view s. 95(5) requires no such exercise and does not call 
for any such conclusion. The reason is that the first and second 
conditions are qualitatively distinct, inasmuch as the first contains 
no element of discretion with the Returning Officer, while the 
second one does (though in rather limited circumstances, as 
explained below). The first condition becomes applicable simply on 
an affirmative answer to an arithmetical question: is the margin of 
victory the lesser of (a) ten thousand votes or (b) less than five 
percent of the total votes polled in the constituency? The first 
number is of course an absolute: 10,000 votes. The second is a 
matter of calculation, of adding up the total votes cast and 
calculating five percent thereof. That too yields a specific number. 
The margin of victory (which is itself a specific number) is then to 
be compared with these two numbers. If it is less than either one of 
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them the first condition is fulfilled. Thus, there is no discretion at 
all with the Returning Officer. Insofar as the second condition is 
concerned, there is an element of discretion: the Returning Officer 
must be satisfied that the request is not unreasonable. Only then 
is the condition applicable. In my view, with respect, to yoke these 
conditions together is to misread, and hence misapply, the 
legislative intent. 
 
5. 
One result of the view that finds favor with the majority is 
that the word “shall” appearing in s. 95(5) must necessarily be read 
as “may”. In my view, the legislature (which of course was only too 
well aware of the previous state of the law) has deliberately 
departed from the discretion that had earlier vested in the 
Returning Officer under s. 39(6). The “shall” used in s. 95(5) must 
therefore be given its intended mandatory effect. This emerges 
clearly if the relevant “or” is read disjunctively. In the first 
condition, as soon as the arithmetical exercise is concluded, and 
the relevant question answered in the affirmative, the recount 
must take place if such an application is moved. It emerges also, in 
my view, in respect of the second condition, though perhaps less 
obviously. Before considering this aspect, I may note that the 
subsection speaks of a “challenge” or a “request” being made to the 
Returning Officer. This dual usage also lends support to the view 
that I take. Inasmuch as the second condition has an element of 
discretion, there is a “request” to the Returning Officer, and indeed 
the second condition specifically repeats this word. On the other 
hand, the word “challenge” is certainly appropriate for the first 
condition. The arithmetical calculations can be carried out by 
anyone and on such basis the applicant can throw out a 
peremptory “challenge” to the count. If the two conditions are 
rolled into one then there can only be a “request”, and the word 
“challenge” is rendered redundant. 
 
6. 
As I understand it the majority judgment essentially finds no 
difference between the requirement previously to be found in s. 
39(6)(a) that the Returning Officer could, in his discretion, allow a 
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recount if he found the request to be “reasonable”, and the 
requirement now contained in the second condition of s. 95(5), that 
the Returning Officer find the request to be “not unreasonable”. If 
so, I am, with respect, unable to agree. While at first sight such an 
equation may seem to exist, the actual position is materially 
different. Under the 1976 Act, the onus lay on the applicant to 
show that his request was reasonable. Furthermore, even if, in law, 
it was, the use of the word “may” meant that the Returning Officer 
still retained discretion to nonetheless refuse a recount. Under the 
present law, the applicant must obviously, if he seeks recourse to 
the second condition, set out the reasons for seeking a recount. An 
application in terms of the second condition without any reasons 
would be liable to dismissed out of hand. However, if reasons are 
given then the onus lies on the Returning Officer (or the other 
contesting candidates) to first show that the request in 
unreasonable. It is here that the Returning Officer has discretion. 
If he concludes that the request is unreasonable, then the onus 
would shift on the applicant to show that this is not so. And if, in 
law, the applicant is correct, then the Returning Officer would have 
no further discretion; the word “shall” ensures that the recount 
must be ordered. Here, an interesting latent ambiguity in s. 39(6) 
may be noted. The word “may” as used therein had, at least at first 
sight, appeared to control both clauses (a) and (b). But that would 
have meant that even if the Election Commission had ordered a 
recount the Returning Officer could have refused to do so. 
Obviously, such a conclusion would have been completely 
untenable. Thus, under the previous law the word “may” would 
have had to be read as such for the first clause, but as “shall” for 
the second. The present law obviates any such difficulty by putting 
the power of the Election Commission in a separate subsection. 
 
7. 
The majority judgment also sets out in some detail the 
legislative policy that would result in the interpretation that finds 
favor with it. Again, with respect, I am unable to agree. In my view, 
to the extent that the legislative policy can at all be ascertained 
from the provisions, it points in the opposite direction. By 
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altogether removing the Returning Officer’s discretion in a 
situation where the first condition applies, and restricting it to 
within a narrow ambit in relation to the second (as explained 
above) the policy of the law appears to be to allow recounts to take 
place at the earliest stage. This is so to limit, if not altogether 
foreclose (that would, perhaps, be hoping too much), such 
challenges at a later stage, whether by way of an election petition 
under Article 225 (i.e., in terms of the relevant election law) or 
constitutional petitions in the High Courts or even this Court. The 
democratic principle is of course that once the people have spoken 
all other voices must fall silent. However, elections are, more often 
than not, strongly contested. Sometimes, after the heat and 
especially in the immediate aftermath of the contest, a losing 
candidate is unable to acknowledge that he has indeed lost, should 
respect the verdict of the people and wait for the next election 
cycle. By allowing for recounts in terms as now contained in s. 
95(5), the policy of the 2017 Act appears to be to allow for the 
“cooling off” to take place at an early stage. If as a consequence a 
little more time is required or taken to officially finalize matters, 
the law clearly regards that as time well spent. 
 
8. 
Subject to the foregoing, I also hold that the appeal fails and 
stands dismissed. 
 
 
Judge