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Official Citation: 2024 PHC 1
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Petitioner: Pakistan Tehreek-e-l nsaaf (PTl) Through its authorized person and others JUDGMENT
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-12-31, officially reported as 2024 PHC 1. In this matter between Pakistan Tehreek-e-l nsaaf (PTl) Through its authorized person and others JUDGMENT and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024PHC1
Court Name: Peshawar High Court Judge(s): Ijaz Anwar, Syed Arshad Ali Title:Pakistan Tehreek-e-l nsaaf (PTl) Through its authorized person and others
JUDGMENT
Reported As: 2024 PHC 1 Result: Order Accordingly Judgment
JUDGMENT SYED ARSHAD ALI, J:- The question before us, in the present case, is whether the Election Commission of Pakistan (ECP) has the power and jurisdiction under Article 218 (3), Article 219 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) read with sections 208 and 215 (5) of the Election Act, 2017 (Act) to question, adjudicate and probe the Intra Party Election of Pakistan Tehreek-e-Insaaf (PTI) which was conducted by the PTI on the directions of ECP on 2nd December, 2023. 2. The instant petition filed by the PTI and 07 others (office bearers) challenges the order dated 22.12.2023 passed by ECP whereby the petitioner No.1 was declared ineligible to obtain the election symbol for which it had applied. 3. M/s Barrister Ali Zafar & Barrister Gohar Ali, while opening their arguments, have stated that the effect of the impugned order is virtually the dissolution of a political party and denying to it the penumbral rights which action of the respondent offends the fundamental rights of the petitioners guaranteed through Article 17 of the Constitution. The learned counsels, while referring to various provisions of Act have argued that the ECP has no jurisdiction to probe the Intra Party Election; dispute and question the validity of election under its limited jurisdiction. The learned counsels, while relying upon the law laid down by the Apex Court in the case of Mrs. Benazir Bhutto (PLD 1989 SC 66), have argued that the citizens of Pakistan enjoy the rights not only of forming a political party but also the constitution ensure the functioning of a political party which, inter alia, includes a right to obtain a symbol to facilitate the voters to identify the party candidate.
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In absence of a common symbol, the voters of political parties would be deprived of their choice to elect a political party. The learned counsels, while referring to the judgment of the Apex Court in the case of Mrs. Benazir Bhutto (PLD 1988 SC 416) have contended that any step taken by any government functionary, which has the effect of disenfranchising of a political party in any manner would offend Article 17(2) of the Constitution. The learned counsels have next argued that the ECP does not dispute that the PTI had conducted the Intra Party Election but their only objection was that the said election was supervised by incompetent persons (Election Commission), therefore, even under the defective doctrine rule, the said election is to be protected in view of the law laid down by the Apex Court in the case of Malik Asad (PLD 1989 SC 497) and (PLD 2009 SC 879). The learned counsels have also maintained that the petitioners' political party has been singled out by not accepting its Intra Party Election whereas no action was taken against other political parties despite having not conducted any Intra Party Election. Therefore, the impugned action of the ECP hit at the core of Article 25 of the Constitution. On factual premises, the learned counsels have maintained that when through an order dated 23.11.2023 the petitioners' political party was asked to conduct Intra Party Election within twenty (20) days, in compliance thereof, they had conducted the Intra Party Election, produced all the required documents establishing the holding of Intra Party Election but the respondent-ECP with malafide has undertaken a process questioning the validity of Infra Party Election conducted by the petitioners' political party; refusing to upload the required certificate under section 209 of the Act on its official website and has passed the impugned order purportedly under Section 215 of the Act which is in complete disregard of the law. The learned counsels have further maintained that ECP is not a Court therefore, has no jurisdiction to undertake any process questioning the validity of Infra Party Election even on the complaint of an alleged aggrieved person. 4. Mr. Sikandar Bashir Mohmand, Advocate, the learned counsel representing the respondent-ECP has argued that ECP not only regulate the conduct of general elections, election to senate and local bodies but is also a regulator of political parties and it derive its authority from Articles 218(3) and 219 of the Constitution, besides, the Election Act, 2017 in terms of Article 219 (E) of the Constitution. He has laid much emphasis on the various provisions in Chapter-XI of the Act by arguing that it is the requirement of law that each party shall have a written Constitution registered with the ECP which should, inter alia, includes the procedure for conducting Infra Party Election. The ECP has the jurisdiction to satisfy and ensure that the Intra Party Election by a political party has been conducted in accordance with its Constitution enabling the workers/members of each political party due participation in the election process. The learned counsel has also referred to the show cause notices issued to the petitioners' political party reminding its legal obligation to conduct the Intra Party Election. The learned counsel has referred to a similar proceedings which were initiated on behalf of the petitioners' political party before the worthy Lahore High Court through constitutional petition No. 287/2024 which was dismissed. Against the said order by a single bench, the petitioners have filed Intra Court Appeal which has yet to be decided by the worthy Lahore High Court, therefore, under the rule of proprietary the petition should not have been filed before this Court. In support of the said arguments, the learned counsel has relied upon the law laid down by the Apex Court in the case of Salahuddin Tirmizi (PLD 2008 SC 735). Regarding the jurisdiction of the ECP to hold an inquiry in the internal affairs of a political party, the learned counsel, while relying upon para-45 of the judgment of the Apex Court in the case of Muhammad HanifAbbasi (PLD 2018 SC 189), has argued that the jurisdiction to collect fact while exercising any power under the Election Act or Rules, the ECP has inherent power to collect evidence in order to form an opinion regarding the validity and procedure adherence of intra party election. To further bolster the said arguments, the learned counsel has also referred to Suo Moto case No. 07 of 2017 reported as PLD 2019 SC 318.
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5. The learned counsel has also objected the constitutional jurisdiction of this Court on the ground that ECP is a constitutional body which is absolutely independent with exclusive jurisdiction while performing its obligations and duties under the Act and any order of the ECP is, thus, not amenable to the judicial review of a constitutional court unless patent illegality is evident from record and in the present case, since the ECP has acted in accordance with the mandate provided by sections 208, 209 and 215 of the Act, therefore, the impugned decision is not subject to judicial review of this Court. In support of his arguments, the learned counsel has placed reliance on the case of Sheikh Rashid Ahmad (PLD 2010 SC 573) and Miss Naheed Khan (2019 CLC 938). However, much emphasis was laid by the learned counsel representing the respondent/ECP on the law expounded by the worthy Islamabad High Court in the case of Dr. Farooq Sattar (PLD 2018 Islamabad 300) wherein the jurisdiction of ECP to interfere and question the validity of Intra Party Election was approved by the worthy Islamabad High Court keeping in view the law laid down by the Apex Court in the case of Muhammad Hanif Abbasi. 6. M/s Qazi Jawad Ehsanullah, Muhammad Tariq Afridi, Naveed Akhtar & Ahmad Farooq Khattak, Advocates, the learned counsels representing the respondents have mainly attacked on the territorial jurisdiction of this court and argued that the principal office of ECP is located at Islamabad and the impugned order was passed by ECP in Islamabad, therefore, this Court has no jurisdiction to entertain this petition. In support of their arguments, the learned counsels have relied upon the law laid down by the Apex Court in the cases 1979 SCMR 555, PLD 2012 SC 681, PLD 2010 SC 537, 1999 SCMR 1921, PLD 2018 SCM 189 and AIR 1967 SC 898. 7. In rebuttal, Barrister Ali Zafar, while relying upon the law laid down by the Apex Court in PLD 1968 SC 387, 2009 CLD 1498, 2012 PTD 1869 and 2017 SCMR 1179, has argued that since the Intra Party Election was conducted in the Province of Khyber Pakhtunkhwa, the offices bearer of the PTI belong to Province of Khyber Pakhtunkhwa, therefore, the impugned order has effects in the Province of Khyber Pakhtunkhwa, therefore, this Court has the territorial jurisdiction in the matter. Facts of the Case 8. It is averred in the petition that Pakistan Tehreek-e Insaaf ("PTI") being a political party of Pakistan is registered with the Election Commission of Pakistan ("ECP") and Mr. Imran Khan Niazi has been its Chairman. The symbol of 'Bat' was allocated to PTI since its very inception and was its symbol even in 2002, 2013 & 2018 general elections. It is further averred that as per letter dated 24.08.2021 of ECP, the intra party elections of PTI were held under its constitution (2019) as amended in June, 2022 notifying the office bearers including Chairman, Vice Chairman and Secretary General as well as Provincial Presidents and General Secretaries on 10.06.2022 and forwarded the same to ECP on the same day. The election was widely reported in print electronic media not only in Pakistan but even internationally. The matter of intra party election of PTI was placed before the ECP for hearing on 28.03.2023 and finally the ECP vide order dated 23.11.2023 declared that the petitioner had failed to hold intra party elections in accordance with its constitution and thereby directed the petitioner to hold intra party election in accordance with its constitution within twenty (20) days positively and also resubmit its result along with all required documents including Form-65 within seven days. Accordingly, the intra party election of PTI was held on 02.12.2023 and the party's Chairman submitted Form-65 in accordance with section 209 of the Election Act, 2017 along with all relevant documents to ECP on 04.12.2023. In the meanwhile, respondents No. 2 to 15, who are not members of PTI, filed applications before the ECP for declaring the intra party election of PTI as void. The ECP vide impugned order dated 22.12.2023 declared the petitioner ineligible to retain the election symbol 'Bat% hence, the instant writ petition. Impugned Order dated 22.12.2023
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9. The crux of finding of ECP in the impugned judgment are that no record was placed before the ECP that any competent authority has ever appointed Federal Election Commission in accordance with the provision of Article IX of PTI Constitution of 2019. A single Federal Election Commission is not the requirement of constitution of PTI and such a solitary office bearer could not exercise any power to hold PTI Intra Party Election till the Commission as a whole is appointed by a competent authority provided under the constitution. According to the record, Secretary General of PTI was Mr. Asad Umar whereas the Election Commission was appointed by Mr. Umar Ayub purportedly acting as Secretary General of PTI, who was never validly appointed as the Secretary General of PTI. 10. The petitioners have questioned the impugned order on legal as well as factual premise. However, we are mindful of our jurisdictional contours that the factual finding of ECP regarding the conduct of election cannot be substituted by this Court. Therefore, if it is found that the ECP had the jurisdiction in the matter then in such circumstances this Court has no mandate to interfere in the said findings. Air Marshal (Retd) Muhammad Asghar Khan v. General (Retd) Mirza Aslam Bait, former Chief of Army Staff and others (PLD 2013 SC 1), Dr. M.A Haseeb Khan and others vs. Sikandar Shaheen and 9 others (PLD 1980 SC 139), Ghulam Muhammad and another vs. Mst. Noor Bibi and 5 others (1980 SCMR 933), _Muhammad Younis Khan and 12 others vs. Government of N.W.F.P. through Secretary, Forest and Agriculture, Peshawar and others (1993 SCMR 618), Shah Wali and others vs. Ferozuddin and others (200 SCMR 718) & Collector of Customs and others vs. Messrs Fatima Enterprises Ltd and others (2012 SCMR 416). Therefore, we will confine ourselves to the adjudication of the following two questions arising out of respective contention of the parties. i. Territorial jurisdiction of this Court and maintainability of the petition to question the order of a constitutional body. ii. Whether the ECP has any jurisdiction to question, probe and adjudicate the Intra Party Election of PTI. Jurisdiction of this Court and maintainability of this petition. 11. The law is by now settled that the Election Commission is a constitutional and independent body having mandate to conduct free and fair election and it derives its authority from the constitution itself, therefore, if any order is passed by the ECP within the four-corner of law i.e. Constitution and the Election Act then the Constitutional Court would be very slow in interfering the working of Election Commission unless it is established that the jurisdiction exercised by the ECP is manifestly illegal, arbitrary or malafide. Malik Ameer Haider Santa vs. Mrs. Sumera Malik and others (2018 SCMR 1166). 12. Moving on to the territorial jurisdiction of this Court. In order to elaborately answer this issue, we would like to refer to the jurisprudence regarding the territorial jurisdiction developed by superior courts of Pakistan through various judgments. Asshar Hussain vs. the Election Commission of Pakistan (PLD 1968 SC 387). In this case, the High Court of East Pakistan was moved for quashment of an order of Tribunal/Election Commission relating to a dispute to a Provincial Constituency of an East Pakistan. The High Court of East Pakistan had dismissed the petition on the ground of lack of territorial jurisdiction. The Apex Court allowed the appeal against the judgment of the High Court of East Pakistan where it was held "the decision given by the High Court of East Pakistan that it has no jurisdiction to issue a writ or a direction to the election Commission of Pakistan is thus unreasonable in law from every point of view. The election Commission is "a person" or "authority" which exercises in the Province of East Pakistan functions in connection with their affairs of the Centre namely, election to the office of President, National Assembly and the Provincial Assemblies and for holding a Referendum as provided for in the Constitution. In that, the Commission is subject to the jurisdiction of High Court
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under Article 98 (2) (a) (i) notwithstanding that its main office and secretariat are located in the Province of West Pakistan". The Federal Government vs. Ayan Ali and others (2017 SCMR 1179). In the present case, the issue related to the jurisdiction of Sindh High Court to have entertained a constitutional petition filed by Ms. Ayan Ali against a notification issued by the Federal Government on the recommendation of Government of Punjab. In the said case, Ayan Ali at one point of time had approached the Lahore High Court wherein directions were issued to the Federal Government to decide the said representation and subsequently when she had to depart from Karachi; through a notification her name was placed in ECL. The Apex Court in the said judgment while rejecting the arguments of the Federal Government relating to the territorial jurisdiction of Sindh High Court and while relying upon the LPG's case has held "as regard the question of territorial jurisdiction, it hardly need emphasis that the impugned notification/memorandum has been issued by the Federal Government which functions all over the country and since the respondent No.1 resides in the Karachi and has a right and choice to proceed abroad through Jinnah International Airport Karachi and in fact at least twice earlier she had proceeded to go abroad through Jinnah International Airport Karachi, though she was stopped owing to the earlier notification/memorandum and therefore, the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood was to be repeated at Karachi in pursuance of the third notification/memorandum and thus giving rise to a cause of action against a third notification/memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad would still be deemed function all over the country". Messrs Al-Iblagh Limited , Lahore vs. The Copyright Board Karachi and others (1985 SCMR 758). Regarding the territorial jurisdiction in the matter, it was observed that: "The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. It was further observed that:- "We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for the decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law". LPG Association of Pakistan through Chairman vs. Federal of Pakistan through Secretary Ministry of Petroleum and Natural Resources, Islamabad and others (2009 CLD 1498). In this case, the territorial jurisdiction of Lahore High Court was questioned on the ground that all the respondents (except a proforma respondents) functioned at Islamabad; impugned notice was issued by the Commission from Islamabad. The Lahore High Court while rejecting the said objection has laid the following principles on the point of territorial jurisdiction/concurrent jurisdiction of High Courts. 6. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible:- (A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Provinces, shall still be deemed to function all over the country.
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(B) If such government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc, and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected: In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts. (D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience". 13. The survey of the aforesaid cases-law led us to conclude that if any authority which is established either under the Constitution or any Federal Law which performs function in connection with the affairs of Federation or such other constitutional functions which has any nexus with any Province, no matter where the Principal Secretariat of the Authority is situated, if it passes any order or undertake any proceedings in relation to any person or group of person who are residing in a Province or the cause of action has emanated from the province leading to the decision by the Constitutional forum or other authority like ECP, then the High Court of the Province in whose territory the order would affect the person would be competent to exercise jurisdiction in the matter. In the present case, admittedly, the impugned election had taken place in the province of Khyber Pakhtunkhwa and the Election Commission of Pakistan for that purpose resides in the Province of Khyber Pakhtunkhwa, therefore, in our humble view this Court as well as the Islamabad High Court have concurrent jurisdiction in the matter. 14. Moving on further to the arguments of Mr. Sikandar Bashir Mohmand, Advocate the learned counsel representing the Election Commission wherein he has raised an objection that a similar petition baring No. 287/2024 titled "Chaudhry Muhammad Aftab Dillo and another vs. Election Commission of Pakistan" was filed before the Lahore High Court which was dismissed by the Lahore High Court on 03.01.2024 therefore, the second petition on the same cause of action before this Court is not maintainable. It was further maintained that the judgment of Lahore High Court has been challenged through an Intra Court Appeal which is still pending before the Lahore High Court which shall be heard by a Larger Bench constituted in this regard. In this regard, in order to keep the record straight, prior to the impugned decision by the Election Commission of Pakistan a constitutional petition bearing No.5791-P/2023 was filed before this Court whereby the petitioner had asked for the similar relief. The said petition was disposed of by this Court vide judgment dated
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31.12.2023 whereby directions were issued to the Election Commission of Pakistan to decide the pending matter by 22nd December, 2023 positively. When the Election Commission of Pakistan had passed the impugned order on 22.12.2023, the said order was challenged before this Court through the instant constitutional petition on 26.12.2023. Similarly, two other persons Umar Aftab Dillo and others had filed a petition bearing No. 287/2024 challenging the same order before the Lahore High Court. The main ground which prevailed before the Lahore High Court for dismissing the petition was that since PTI had already filed a similar petition before this Court, therefore it was a matter of proprietary that the case should be decided by this Court. The learned counsel in this regard has referred to the judgment of Salahuddin Tirmizi (PLD 2008 SC 735) and has argued that once the matter is raised before one High Court having concurrent jurisdiction then subsequently in the same series of cause of action as a matter of proprietary the same High Court should be approached. However, with profound respect the law laid down by the Apex court in the case Salahuddin Tirmizi case is not applicable in the present case because the first constitutional petition was filed before this Court bearing No. 5791-P/2023 wherein direction was issued to the ECP for passing a final order and when the final order was passed it was challenged before this Court by the present petitioner on…
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