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Official Citation: 2025 CLC 56
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Salman Akram Raja vs Election Commission of Pakistan through Chief JUDGMENT
Ruling Summary: This decision was rendered by the Lahore High Court on 2023-12-31, officially reported as 2025 CLC 56. In this matter between Salman Akram Raja and Election Commission of Pakistan through Chief JUDGMENT, 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 2025 CLC 56
Court Name: Lahore High Court Judge(s): Shahid Karim Title:Salman Akram Raja vs Election Commission of Pakistan through Chief
JUDGMENT
Reported As: 2024 LHC 2466, 2025 CLC 56 Result: Petition Allowed Judgment JUDGMENT Shahid Karim, J. The question at the heart of these constitutional petitions (W.P No.28985 of 2024 & W.P No.31120 of 2024) critically interrogates the meaning of section 140 of the Elections Act, 2017 ("the Act"). 2. The narration of facts would lend actuality to the analysis. The general elections to the National and Provincial Assemblies were held on 8th of February, 2024. On 14th of February, 2024 the Election Commission of Pakistan (ECP) wrote a letter to all the High Courts through the Registrars with the following request: "I am directed to draw your attention to Section-140 of the Elections Act, 2017 and to request that the matter may be placed before the Hon'ble Chief Justice with the request for the provisions of a list of Honourable serving Judges of the Hon'ble High Courts for their appointment as Election Tribunals for hearing & decision of election petitions filed under Section 139 of the Election Act, 2017. It is also requested that a panel of Hon'ble serving Judges may be provided for the appointment of required number of Election Tribunals by the Commission at the principle seat and benches of the Hon'ble High Courts" 3. The letter set out above makes a request to Honourable Chief Justices of the four provincial High Courts "for the provision of a list of honorable serving Judges of the High Courts for their appointment as Election Tribunals". Further that "it is also requested that a panel of honorable serving Judges may be provided for the appointment of required number of Election Tribunals by the Commission at the Principal Seat and the Benches of the honorable High Courts". The letter does not spell out the required number of Election Tribunals which, in the estimation of ECP, were
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necessary to be appointed for different provinces to decide election petitions filed under Section 139 of the Act. In the context of the Lahore High Court (LHC), the Hon'ble Chief Justice nominated two Honourable Judges for disposal of election petitions vide letter dated 20th of February, 2024. These were notified by ECP on 20.02.2024 without demur. It will be noted that ECP did so on the recommendations of the Chief Justice and proceeded to appoint the two Judges to act as Election Tribunals. There was no further communication by ECP to its request made on 14.02.2024 for a panel of Judges to be provided for being appointed as Election Tribunals. By notification dated 7.3.2024 the Registrar of Lahore High Court assigned the areas to the Election Tribunals for the trial and disposal of election petitions. In respect of Principal Seat and Rawalpindi Bench, a Judge was assigned the territorial jurisdiction to adjudicate and decide the election petitions. 4. On 4.4.2024 another letter was addressed by the Registrar Lahore High Court to the Joint Provincial Election Commissioner at Lahore regarding appointment of Election Tribunals in addition of the two Election Tribunals appointed vide notification dated 20.02.2024. Six Judges of Lahore High Court were nominated by the Chief Justice for their appointment as Election Tribunals. The areas of their jurisdiction were also mentioned in this letter regarding disposal of election petitions at the Principal Seat and Benches. ECP did not act on the letter of 4.4.2024 until 26.04.2024 when it proceeded to appoint two further Election Tribunals out of the six names in the letter of 4.4.2024. In the Notification of 26.04.2024 the territorial jurisdiction of the Election Tribunals so appointed was also determined by ECP. On the same date, that is, 26.04.2024 ECP addressed a letter to the Registrar Lahore High Court intimating regarding Notification of the Judges to act as Election Tribunals. Apart from varying the territorial jurisdiction assigned to these Judges from the one which was proposed by the Chief Justice (as also notified on 07.03.2024 by LHC), ECP made further request to the Chief Justice to "provide panel of honourable sitting Judges to the Election Commission of Pakistan for their appointment as Election Tribunals for the trial and disposal of election petitions pertaining to National/ Provincial Assemblies' Constituencies of the Rawalpindi and Bahawalpur Divisions". Thus, ECP not only declined to nominate the names recommended by Chief Justice in full but also unilaterally changed their territorial jurisdiction regarding trial and disposal of election petitions. Therefore, only two Judges out of the six nominated by the Chief Justice Lahore High Court were notified as Election Tribunals by ECP. Simultaneously, a request was made for a panel of sitting Judges of Lahore High Court to be provided to ECP for their appointment as Election Tribunals. This aspect of the matter was one of the main planks of challenge by the learned counsel for the petitioners. 5. The letter of 26.04.2024 was responded to by Registrar Lahore High Court and the following observations are set out below: "...Moreover, as per our record, no such precedent is found where Election Commission of Pakistan demanded such 'panel' in the past and the same was provided by this Court. You are therefore, required to provide any past practice/ precedent whereby in General Elections or Bye-Elections, any such 'panel' was specifically required and also insisted upon by the Election Commission of Pakistan and the same was provided by this Court. Your response in this regard is required within two days positively to avoid any further unnecessary delay in this matter." 6. In a nub, the Registrar who without a shadow of doubt acted on behalf of the Chief Justice Lahore High Court, stated that no criteria had been mentioned in the Notification of 26.04.2024 on the basis of which two Judges out of the six Judges of the Court had been appointed as Election Tribunals. It was made clear that there was no lawful basis for a panel of Judges to be provided to ECP for appointment as Election Tribunals. Lastly, a reference was made to the large number of election petitions which were required to be decided and that the number of Election Tribunals did not commensurate with the number of election matters which were brought before Lahore High Court. This letter was replied on 6.5.2024 containing ECP's counterveiling argument regarding
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provision of a panel of sitting Judges to be a sine qua non for the process of meaningful consultation to take place. While this correspondence was being exchanged between ECP and Lahore High Court, on 09.05.2024 the following Notification was issued: "In continuation of this Commission's earlier notification of even number dated 26th April 2024 and in pursuance of the provisions of Section 140 of the Elections Act, 2017, the Election Commission of Pakistan has been pleased to further notify that the Election Petitions pertaining to the National/ Provincial Assembly Constituencies of Rawalpindi and Bahawalpur Divisions, shall be tried and heard by the already notified Election Tribunals, at Lahore and Multan respectively, as were notified vide notification No.20 T & Coord. Dated 07-03-2024 of Lahore High Court, Lahore. i.e Election Petitions pertaining to the constituency of Rawalpindi division to Mr. Justice Sultan Tanveer Ahmad and Election Petitions of the constituencies of Multan and Bahawalpur divisions to Mr. Justice Sardar Muhammad Sarfraz Dogar, in addition to their already assigned areas, with immediate effect and till further orders by the Commission." 7. The Notification set out above assigned the election petitions relating to National/ Provincial Assemblies' constituencies of Rawalpindi and Bahawalpur Divisions to be tried and heard by the already notified Election Tribunals on 7.3.2024. Once again, a letter was written to the Secretary ECP by the Registrar Lahore High Court rebutting the stated position of ECP regarding a panel of Judges to be provided and questioned the observations that such a panel was recommended in the past for ECP to consider and appoint Election Tribunals at its whim and choice. Further response was given on 16.05.2024 by ECP. 8. It can be culled out from the narration of facts brought forth above that ECP and the Hon'ble Chief Justice Lahore High Court have been engaged in a consultative process and it is common ground between the parties that consultation has been taking place between the two and it cannot be contended that the process of consultation has been absent in the entire process of appointment of Election Tribunals. Thus, the issue relating to consultation or lack of it would not exercise any gravitational pull and the only question that now remains to be decided by this Court is whether the consultation should be construed in such a manner that paramountcy is given to the nominations made by the Chief Justice. This further begs the question whether ECP has the discretion in the matter to take a stance contrary to the nominations made by the Chief Justice and not only appoint Judges of its own choosing as Election Tribunals as also proceed to assign them areas of jurisdiction within which they shall try and decide election petitions. 9. Learned counsel for ECP raised three threshold objections which will be dealt with at the outset. 10. The first relates to the hearing of these petitions by this Bench as one of the names nominated by the Chief Justice as Election Tribunals comprised this Bench as well. This objection should receive a short shrift. The issue engaged in these petitions is a matter of public importance and does not relate to my private matters nor do I derive any personal benefits so as to attract the doctrine of recusal and bias. At best, the Chief Justice may choose to withdraw my name as the nominated Election Tribunal on the ground that I have heard these petitions. Further any of the parties to this litigation may raise their objections to the hearing of election petitions if these are fixed before the Election Tribunal comprising this Bench and if at all such a situation arises. In any case, the learned counsel to his credit made a flanking rather than a frontal attack on the basis of this objection. 11. The second objection relates to the standing of one of the petitioners Mr. Salman Akram Raja to file and maintain his petition as an Election Tribunal has already been nominated and notified for the adjudication of election petitions at the principal seat. There is no contention that the said petitioner does not have a right to the hearing of his election petition by a particular Election Tribunal and this would be within the discretion of the Hon'ble Chief Justice in accordance with the areas assigned to different Election Tribunals.
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12. The third objection relates to passing of an order under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") in respect of the acts of the High Court which are judicial or administrative in nature. This was argued on the basis of a judgment of the Supreme Court of Pakistan reported as Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court (PLD 2021 Supreme Court 391) which prohibits the filing of a constitutional petition in respect of actions taken by a High Court whether in its judicial or administrative capacity and it was laid down that no directions under Article 199 of the Constitution could be issued to a Judge of the High Court in both capacities. There can be no dispute regarding the holding of the Supreme Court in the case referred by learned counsel for ECP but the precedent has no relevance to the facts of present cases. Here, the Court is engaged in the construction of section 140 of the Act and the refusal of ECP to act upon the nominations made by the Hon'ble Chief Justice Lahore High Court. These are two materially distinct propositions and one cannot be confused with the other. In essence, the actions of ECP are under challenge and upon which this Court will render its ruling. ECP is a person performing functions in connection with the affairs of the Federation and so is caught by the jurisdiction of this Court. 13. Learned counsel for the petitioners based his arguments on the concepts of independence of judiciary and the absence of any requirement in law as well as the Constitution for a panel of Judges to be sent to ECP for their appointment as Election Tribunals. 14. Section 140 of the Act provides that: "140. Appointment of Election Tribunals.-- (1) For the trial of election petitions under this Act, the Commission shall appoint as many Election Tribunals as may be necessary for swift disposal of election petitions. (2) An Election Tribunal shall comprise-- (a) in the case of an election to an Assembly or the Senate, a person who is or has been a Judge of a High Court; and (b) in the case of an election to a local government, a District and Sessions Judge or an Additional District and Sessions Judge. (3) The Commission shall appoint a sitting judge as Election Tribunal in consultation with the Chief Justice of the High Court concerned." 15. Section 140 requires unpacking in order to arrive at the true construction to be given to this provision and in particular sub-section (3). The appointment of Election Tribunals is a power conferred upon ECP by section 140 and there is no cavil with this argument. The arguments in this Court on behalf of ECP centered on the word "appoint" from which it was sought to be deduced by the learned counsel that the entire discretion to appoint an Election Tribunal would vest in ECP to the exclusion of all others and this must be read as conferring primacy in the matter on the acts of ECP and thus the Chief Justice Lahore High Court has misconstrued that the nominations so made must be notified and appointed. This argument is remarkably cramped and would have the effect of nullifying the effect of sub-section (3) of section 140 of the Act. In order to render a harmonious interpretation the entire section 140 will have to be read holistically. 16. In my opinion, sub-section (3) refers to a stage prior to appointment of Election Tribunals by ECP and that stage contemplates the appointment of a sitting Judge as Election Tribunal in consultation with the Chief Justice of the High Court concerned. Therefore, the consultative process has to precede the appointment to be made by ECP. This brings us to the next question as to what precisely is meant by consultation with the Chief Justice of the High Court concerned. 17. The word "consultation" has received judicial interpretation in the seminal case of Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others (PLD 1996 Supreme Court 324). It is presumed that the Parliament was aware of the interpretation put on the word 'consultation' by the superior courts and in particular by the
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Supreme Court of Pakistan in Al-Jehad Trust. By now, the term 'consultation' has morphed into a term of art and use of this term has a definite and precise meaning which has to be attributed to it in the context of Al-Jehad Trust case. Not only that the Parliament is presumed to be aware of it but also ECP must have a fair idea of what is meant by the Parliament when it uses the term 'consultation' in any statutory instrument. This is also a canon of construction vouched by authority. 18. This canon of interpretation has been described as prior-construction canon in Reading Law: The Interpretation of Legal Texts by Antonin Scalia and Bryan A. Garner. It states the rule as follows: "If a statute uses words or phrases that have already received authoritative construction by the jurisdiction's court of last resort, or even uniform construction by inferior courts or a responsible administrative agency, they are to be understood according to that construction." While stating the rule, the treatise relied upon Shapiro v. United States 335 U.S. 1, 16 (1948) (per Vinson, C.J) which held that: "In adopting the language used in the earlier act, Congress must be considered to have adopted also the construction given by this Court to such language, and made it a part of the enactment." In England, the prior-construction canon is called "the rule of Ex-parte Campbell" after an 1870 case [1870] L.R. 5 Ch. App. 703. in which Lord Justice James declared: "Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without any alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them." This rule has been relied upon by our courts, too. 19. In Al-Jehad Trust, the following question was formulated: "For the present the most important and pivotal question for consideration is the concept of "consultation" provided in the Constitution for the appointment of the Judges as mentioned in the Articles 177 and 193 thereof. More thought? provoking question is whether the "consultation" envisaged in the Constitution in respect of appointment of the Judges is institutionalised, participatory and binding or mere a formality. 20. By way of historical facts, it may be stated that Articles 177 and 193 of the Constitution, were materially different prior to the amendments made through the Constitution (Eighteenth Amendment) Act, 2010. Priorly, the President appointed the Judges to the superior courts in consultation with the Chief Justice of Pakistan and the Governor of the Province. The issue fell for determination before the Supreme Court of Pakistan in Al-Jehad Trust as to whether there was in fact consultation between the President and the consultees and also what was the status of consultation and the views in consequence thereof of the Chief Justice of Pakistan with regard to the question of appointment. After framing the question set out above the Supreme Court of Pakistan went on to deal with the issue by stating that: ""Consultation" in the scheme as envisaged in the Constitution is supposed to be effective, meaningful, purposive, consensus-oriented, leaving no room for complaint of arbitrariness ' or unfair play. The opinion of the Chief Justice of Pakistan and Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship?? is entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive. 81. If the Chief Justice of the High Court and the Chief Justice of Pakistan are of the opinion that a particular candidate is not fit and capable to be appointed as Judge of the High Court, then acting against the expert opinion would not be proper exercise of power to appoint him as a Judge on the ground that the President/Executive has final say in the matter. It is not correct interpretation to say that because word "consultation" is used, which is different from 'consent', opinion of Chief Justice can be ignored...
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82. We are interpreting the word 'consultation' to widen and enlarge its normal scope for the reasons, firstly, that the Constitution-makers have not debated this word 'consultation' and fixed its parameters. Secondly, we would like to assign meaning to 'consultation', which is consistent and commensurate with the exalted position of Judiciary as is envisaged in Islam. Thirdly, we would like to give positive interpretation to 'consultation' which promotes independence of Judiciary. Executive may have the last word and may issue notification of appointment, but cannot give loose interpretation to the word consultation' to ignore or brush aside expert opinion of Chief Justice of the High Court and the Chief Justice of Pakistan. Fourthly, the President is administered oath by the Chief Justice of Pakistan as required under Article 42 of the. Constitution and the Chief Justice of Pakistan administers oath to other Judges of the Supreme Court and Chief Justice of Province administers oath to Judges of his High Court as contemplated under Articles 178 and 194 respectively, which shows that both the Chief Justices are tends of their institutions and their opinion in their own field of expertise should not be treated lightly particularly when they are Constitutional consultees and the appointments are also being made of the Judges within the Constitutional scheme. 21. It was held that the consultation has to be effective, meaningful and purposive. More importantly, the Supreme Court clearly stated that the opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for being appointed as a Judge was entitled to be accepted in the absence of very sound reasons to be recorded in writing by the President/Executive. Moreover, the opinion of the Chief Justice could not be ignored and this was evident from the use of the word "consultation". This was held notwithstanding the fact that the power to appoint vested in the President and this aspect on which much emphasis was laid by learned counsel for ECP was squarely dealt with in Al-Jehad Trust while holding that though the Executive may have the last word and may issue Notification of appointment, but this had to give way to the interpretation regarding the word 'consultation' put by the Supreme Court and cannot ignore the opinion of the Chief Justice of Pakistan or the High Court as the case may be. In conclusion, it was held that: "(i) The words "after consultation" employed inter alia in Articles 177 and 193 of the Constitution connote that the consultation should be? effective, meaningful, purposive, consensus oriented, leaving no room for complaint of arbitrariness or unfair play. The opinion of the Chief Justice of Pakistan and the Chief Justice of a High Court as to the fitness and suitability of a candidate for judgeship is entitled to be accepted in the absence of very sound reasons to be recorded by the President/Executive. (ii) That if the President/Executive appoints a candidate found to be unfit and unsuitable for judgeship by the Chief Justice of Pakistan and the Chief Justice of the High Court concerned, it will not be a proper exercise of power under the relevant Article of the Constitution. (xiii)That since consultation for the appointment/confirmation of a Judge of a Superior Court by the President/Executive with consultees mentioned in the relevant Articles of the Constitution is mandatory any appointment/confirmation made without consulting any of the consultees as interpreted above would be violative of the Constitution and, therefore, would be invalid. 22. Ajmal Mian, J. also alluded to the undisputed position that act of appointing of a Chief Justice or a Judge in the superior courts is an executive act. But went on to agree with the conclusions drawn by the Chief Justice in Al-Jehad Trust that the views of the Chief Justice of the High Court concerned and the Chief Justice of Pakistan cannot be rejected for extraneous considerations and if the executive wished to disagree it had to record strong reasons which will be justiciable. Further another crucial aspect was flagged. It was that if the Chief Justice of the High Court concerned and the Chief Justice of Pakistan did not find a person fit to be appointed as a Judge of a High Court
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that person cannot be appointed as it will not be a proper exercise of power to appoint under the Articles of the Constitution. 23. Learned counsel for ECP contended that this case was in the paradigm of appointment of Judges to the superior courts. This is an erroneous view of Al-Jehad Trust and the interpretation put on the word 'consultation' was intended to apply in all matters where the word was used in all future statutory instruments. Such a contention would offend the intention of the legislature as well while enacting subsection (3) of section 140 of the Act while using the word 'consultation' which has become a well-worn term over the years since its exposition in Al-Jehad Trust. Likewise, ECP's view on the issue is a misdirection of law which feeds through the rest of the decision-making process. 24. We now advert to Sh. Ria ul Haq and another v. Federation of Pakistan through Ministry of Law and others (PLD 2013 Supreme Court 501) in which the Supreme Court not only reaffirmed the rule but was more emphatic in its application. It said that: "58. On having discussed the cases supra it is concluded that Service Tribunals (Federal and Provincial) falling in the category of Court capable to exercise judicial powers are bound to follow the principle of independence judiciary for the purpose of ensuring enforcement of fundamental rights of access to justice under Article…
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