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Official Citation: 2024 IHC 160
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2023
Decision Date: 2023-12-31
Parties: Ch. Fawad Ahmed vs Election Commission of Pakistan and another, JUDGMENT
Ruling Summary: This decision was rendered by the Islamabad High Court on 2023-12-31, officially reported as 2024 IHC 160. In this matter between Ch. Fawad Ahmed and Election Commission of Pakistan and another, 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 2024IHC160
Court Name: Islamabad High Court Judge(s): Saman Rafat Imtiaz Title:Ch. Fawad Ahmed vs Election Commission of Pakistan and another,
JUDGMENT
Reported As: 2024 IHC 160 Result: Petition Allowed Judgment
JUDGMENT SAMAN RAFAT IMTIAZ, J.- 1. This Judgment shall decide the above titled Writ Petitions, which involve common questions of law arising from similar facts. 2. The Petitioner [Chaudhary Fawad Ahmed] vide W.P. No. 4560 of 2023 has sought (i) setting aside of Orders dated 30.11.2023 ("Impugned Order I") and 12.12.2023 ("Impugned Order II") whereby the Respondent No. 1 [Election Commission of Pakistan ("ECP")] ordered the contempt proceedings against the Petitioner to be conducted in Adyala Jail, Rawalpindi ("Adyala Jail"); and (ii) directions to the ECP to proceed with the hearing in open court as conducted earlier in the premises of ECP and to the relevant authorities to produce the Petitioner on each date of hearing. 3. The Petitioner vide W.P. No. 1976 of 2023 has sought declaration that the Notifications No. F. No. 6/4/2023-Lit-1 dated 8.12.2023 ("Impugned Notification No. I") and 20.12.2023 ("Impugned Notification No. II") whereby the Respondent No. 1 [Federation of Pakistan through the Secretary, Ministry of Interior ("FOP")] has issued directions to the concerned authorities to provide all administrative facilitation including security at all subsequent hearings to be conducted in Adyala Jail as per directions of the Respondent No. 2 [ECP] are void, illegal and unlawful and that all proceedings pursuant to the Impugned Notifications are illegal and of no effect. 4. As per the memoranda of Petitions the Petitioner is a law practitioner and member of the Supreme Court Bar Association of Pakistan. He was elected as Member, National Assembly of Pakistan from NA-97 (Jhelum) and after being chosen for the Federal Cabinet, served in the
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Ministries of Information and Broadcasting as well as Science and Technology in the erstwhile Pakistan Tehreek-e-Insaf government. The Petitioner has allegedly been targeted by his political opponents in order to keep him out of the elections held in 2024 by lodging false, frivolous, and unfounded cases against him in which he has been arrested merely to vex him and his family. The Petitioner was in the custody of the National Accountability Bureau on physical remand at the time of filing of W.P. No. 4560 of 2023. The Petitioner being under trial prisoner was being produced in various Courts. The contempt proceedings were initiated against the Petitioner for the alleged use of intemperate language and contemptuous remarks against the ECP during media talk. 5. During the proceedings of contempt the ECP issued the Impugned Order No. I ordering that the contempt matter against the Petitioner shall be conducted in Adyala Jail by the ECP as proceedings of similar matter of contempt against Imran Khan shall be conducted in Adyala Jail, Rawalpindi hence the Ministry of Interior was directed to notify the trial of the matter in Adyala Jail after fulfilling all the requisite legal formalities and proceedings for framing of charge against the Petitioner was ordered to be conducted on 13-12-2023 at Adyala Jail, Rawalpindi. 6. Thereafter, the ECP issued the Impugned Order No. II ordering that as similar matters are fixed for proceedings in Adyala Jail on the next date i.e. 13-12-2023 therefore such matter shall also be fixed along with other matters for submission of reply to show cause notice and for further proceedings at Adyala Jail, Rawalpindi while also allowing the Petitioner's lawyers along with clerks, mother and wife to attend the proceedings on the next date. 7. Subsequently, the FOP issued the Impugned Notifications pursuant to the Impugned Orders. Hence these Petitions. 8. The learned counsel for the ECP, at the very outset, challenged the maintainability of the instant Petition. In this regard, she submitted that the original Notice dated 19.8.2022 issued by the ECP to the Petitioner was challenged by the Petitioner before the Lahore High Court, Rawalpindi Bench in W.P. No. 2285 of 2022 while also seeking inter alia a declaration that Section 10 of the Elections Act, 2017 ("Elections Act") is ultra vires. Thereafter, Show Cause Notice dated 13.9.2022 ("SCN I") was issued which too was challenged by the Petitioner before the Lahore High Court, Rawalpindi Bench in W.P. No. 2605 of 2023 while also seeking declaration that Section 4 of the Elections Act is ultra vires. Both the said petitions were not pressed on 13.3.2023. However, subsequently the Petitioner filed W.P. No. 47883 of 2023 challenging not only the Notice dated 19.8.2022 and SCN I yet again but also Order dated 5.6.2023 passed by the ECP in the proceedings emanating from the Notice dated 19.8.2022 as well as the vires of Sections 4(2) and 10 of the Elections Act and Rule 4 of the Election Rules, 2017 ("Election Rules"). W.P. No. 47883 of 2023 was dismissed for non-prosecution on 22.1.2024 but a restoration application was filed by the Petitioner on 23.1.2024 which is pending. The learned counsel for the ECP therefore argued that propriety demands that this Court restrain itself from exercising jurisdiction in the instant matters in view of the pendency of the restoration application in the writ petition filed before the Lahore High Court, Rawalpindi Bench. In this regard, she relied upon Lieutenant General (R) Salahuddin Tirmizi versus Election Commission of Pakistan, PLD 2008 SC 735, whereby it was held that propriety demanded that the subsequent order passed by the ECP in post remand proceedings should have also been challenged before the Islamabad High Court since an earlier order passed by the ECP was challenged before the Islamabad High Court. The learned counsel also cited Muslim Commercial Bank Limited and another versus Momin Khan and others, 2002 PLC (CS) 898. She confirmed that the Orders and Notifications impugned in the instant proceedings are not being challenged before any other High Court. However, she relied upon Alam Dad Laleka versus Election Commission of Pakistan, PLD 2020 Islamabad 20 whereby this Court while quoting Salahuddin Tirmizi (Supra) held that where a litigant challenged a show cause notice before a High Court of one province he cannot be permitted to challenge another order passed in the same proceedings before another High Court.
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She argued that since the Impugned Order I and Impugned Notification I have been passed in contempt proceedings arising out of Notice dated 19-08-2022 and SCN I, which have been challenged before the Lahore High Court, Rawalpindi Bench, propriety demands that this Court does not exercise jurisdiction in the matter. The learned counsel for ECP further contended that this Court will be required to interpret Section 10 of the Elections Act in order to consider the arguments of the Petitioner as to whether or not ECP is a Court and whether it is liable to fulfill the requirements of Section 352, Cr.P.C., whereas the vires of Section 10 of the Elections Act is under challenge by the Petitioner in W.P. 2285 of 2022 before the Lahore High Court, Rawalpindi Bench. 9. The learned Assistant Attorney General relied upon Election Commission of Pakistan and others versus Pakistan Tehreek-e-Insaf and others, PLD 2024 SC 267 and referred to Section 10, CPC to submit that a party cannot agitate the same matter which is directly or substantially at issue in a previously instituted case. 10. In response to the challenge to the maintainability of the instant petitions, the learned counsel for the Petitioner in W.P No. 4560 of 2023 emphasized that the Supreme Court of Pakistan in Salahuddin Tirmizi (Supra) concluded that both the orders passed by the Islamabad High Court as well as the Peshawar High Court were passed with lawful authority. Even otherwise, the learned counsel for the Petitioner submitted that the circumstances of the case of Salahuddin Tirmizi (Supra) are different from the instant case as in the said case an order passed by the ECP rejecting an application for a re-poll was challenged before this Court in writ petition wherein this Court remanded the matter to the ECP whereas what was challenged before the Peshawar High Court was an order passed by the ECP in post remand proceedings. The learned counsel for the Petitioner denied that the matter agitated before this Court is the same or substantially similar to the matter agitated in W.P. No. 47883 of 2023 before the Lahore High Court, Rawalpindi Bench and that even otherwise the said petition cannot be considered as pending since it has been dismissed vide the Order dated 22.1.2024 and has not yet been restored. In this regard, he referred to Order IX, Rules 8 and 9, C.P.C. to argue that a matter dismissed for non-prosecution cannot be revived till the order of dismissal has been set aside which has not yet happened in W.P. No. 47883 of 2023 as the restoration application is still pending. Moreover, he argued that the Lahore High Court, Rawalpindi Bench has not exercised jurisdiction in the matter as the matter has not been heard on merits. Whereas, the Petitioner has also challenged Impugned Order and Notification II arising from Show Cause Notice dated 13-6-2023 ("SCN II"), which was challenged by the Petitioner before this court vide W.P. 2004 of 2023 that was dismissed and against which ICA No. 354 of 2023 has been filed which is pending. He therefore contended that the instant writ petitions challenging the Impugned Order and Impugned Notification II are maintainable as this Court has already exercised jurisdiction in SCN II, and in view thereof the Impugned Order I as well as the Impugned Notification I would naturally also be challenged before this Court. 11. On merits the learned counsel for the Petitioner referred to Section 9(4) which provides that while exercising the powers conferred on it by sub-section (1), the ECP shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure. He pointed out that the ECP is not a Tribunal under Section 10 and that it is not a Court as without a Constitutional amendment in Article 175A, another High Court cannot be established vide statutory provisions. He highlighted that pursuant to Section 199 of the Elections Act the Cr.P.C. applies to, inter alia, the 'trial of an offence' where sufficient provision does not exist in the Elections Act. He therefore argued that the ECP was bound to follow the procedure prescribed in Section 342, Cr.P.C. and Section 3 of the Lahore High Court Rules for a jail trial, which the ECP failed to do. The learned counsel for the Petitioner drew the Court's attention to the Impugned Order I wherein it has been noted that since the contempt proceedings against Imran Khan are taking place in Adyala Jail, Rawalpindi therefore proceedings
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against the Petitioner shall also be conducted in Adyala Jail. He submitted that the Petitioner and Mr. Imran Khan have been issued different show cause notices. He referred to copies of SCNs issued to the Petitioner as well as the notice/show cause notices dated 19.8.2022 and 13.9.2022 issued to Mr. Imran Khan to highlight that the contempt allegedly committed by the Petitioner was on different dates and different venues. He also contended that the instant writ petitions have not become infructuous despite the Petitioner having been released on bail as charge against the Petitioner was framed inside Adyala Jail on 3-1-2024 which will stand vitiated only upon a declaration setting aside the Impugned Orders and Impugned Notifications as prayed for vide the instant petitions. 12. The learned counsel for the Petitioner in W.P No.1976 of 2024 argued that the Impugned Notifications have been issued in violation and derogation of the applicable laws. 13. The learned counsel for the ECP submitted that charge has been framed against the Petitioner in Adyala Jail pursuant to the Impugned Order and Notification I only whereas neither charge has been framed nor any further proceedings have been held pursuant to the Impugned Order and Notification II. As such she argued that the instant writ petitions to the extent of the Impugned Order and Notification II have become infructuous by virtue of the fact that the Petitioner is no longer in Adyala Jail. She submitted that to the extent that the writ petitions challenge the Impugned Order and Notification I the same are not maintainable due to the pendency of the restoration application in W.P No.47883 of 2023 before the Lahore High Court, Rawalpindi Bench. She pointed out that that the original prayer made vide W.P No.4560 of 2023 was only to proceed with the contempt case in open Court and not for setting aside the Impugned Orders. She argued that the amended prayer whereby setting aside of the Impugned Orders has also been prayed for even if allowed would be allowed from the date of amendment and not from the date of institution of W.P No.4560 of 2023 as no prayer for declaring them void ab initio has been made. Thus even if W.P No.4560 of 2023 is allowed, according to the ECP it will not have the effect of setting aside any order that may have been passed by ECP in Jail pursuant to the Impugned Order and Notification I prior to the date on which the prayer was amended as this Court does not have suo moto powers. She therefore argued that setting aside the Impugned Orders will not have the effect of vitiating the proceedings that may have taken place in Adyala Jail so far. She also referred to Section 10, CPC and submitted that while the same relief may not have been prayed for vide W.P No.4560 of 2023 filed in this Court as in W.P No.47883 of 2023 filed before the Lahore High Court, Rawalpindi Bench, however, the arguments submitted by the learned counsel for the Petitioner before this Court in these proceedings are substantially the same as arguments to be submitted before the Lahore High Court, Rawalpindi Bench in W.P No.47883 of 2023 if the same is restored. She argued that the contempt proceedings are sui generis and not criminal proceedings and therefore cannot be equated with 'trial of an offence' as used in Section 199 of the Elections Act which pertains to other offences under the said Act. As such she submitted that Criminal Procedure Code, 1898 ("Cr.P.C.") has no application upon contempt proceedings conducted by ECP, who is empowered to regulate its own proceedings under Section 3 of the Elections Act. She further submitted that Section 352, Cr.P.C applies to a criminal Court, whereas ECP while conducting contempt proceedings acts as a High Court. Similarly Rule 3 of the Lahore High Court Rules and Orders does not apply to High Court or ECP. She also submitted that the proceedings before ECP are in any event not open to public and as such the Petitioner cannot claim that he has the right of public trial in respect of contempt proceedings. She submitted that the reason for proceeding with the contempt proceedings against the Petitioner in Adyala Jail was because similar proceedings against Mr. Imran Khan were taking place in Adyala and that contemptuous remarks by both the accused persons were made at a time when they were both members of the same political party.
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14. With respect to W.P No.1976 of 2024, the learned counsel for ECP submitted that although the Petitioner has specifically prayed for a declaration therein that all proceedings pursuant to the Impugned Notifications are illegal and of no legal effect, the petition not only suffers from laches but is also hit by Order II, Rule 2, CPC as the relief claimed for arises from the same cause of action as alleged in W.P No.4560 of 2023, in which no such prayer was made and therefore such claim would be deemed relinquished. 15. While exercising their right of rebuttal, the learned counsels for the Petitioner in both the instant petitions submitted that Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") is to be read into every criminal charge. They relied upon Naveed Akhtar vs. The State, PLD 2021 SC 600 in this regard. They relied upon The State vs. Khalid Masood, Regional Director Pakistan Narcotics Board, Lahore and 3 others, PLD 1996 SC 42; Talal Ahmed Chaudhary vs. the State, 2019 SCMR 542; and Contempt Proceedings against Imran Khan, Chairman Pakistan Tehreek-I-Insaf, PLD 2014 SC 367 to assert that contempt proceedings are quasi criminal in nature. They argued that ECP does not enjoy unbridled authority. They drew the attention of the Court to the Impugned Orders and submitted that they do not refer to Sections 3 and 4 of the Elections Act and reliance thereupon is an afterthought. They also pointed out that while the Impugned Orders refer to legal formalities it is not specified as to which legal formalities. 16. I have heard the arguments of the learned counsel for the parties and have also perused the record. Maintainability of Writ Petitions: 17. As held by the Supreme Court in the case of Salahuddin Tirmizi (Supra) it is proper to decide the question of jurisdiction of this Court in the first instance being a fundamental question. It is undisputed that in light of Salahuddin Tirmizi (Supra) this Court does possess jurisdiction in the instant matter given that the Impugned Orders under challenge in W.P. No. 4560 of 2023 were passed by ECP in connection with the affairs of the Federation within the territorial jurisdiction of this Court. 18. The question posed by the arguments presented by both the sides is whether keeping in view the principles of propriety settled in the case of Salahuddin Tirmizi (Supra) this Court ought to restrain itself from exercising jurisdiction in view of the pendency of a restoration application filed by the Petitioner in W.P. No. 47883 of 2023 (which was dismissed by the Lahore High Court, Rawalpindi Bench for non-prosecution) wherein the Petitioner has challenged the SCN I from which the Impugned Order I arises. In this regard I rely upon Ghulam Qadir vs. Sharimati Sadori Baie and 2 others, 2011 YLR 2560 and Abbas Ali and another vs. Asif Abbas and 3 others, 2016 CLD 555 whereby it has been held that a restoration application by itself would not bring life into dead proceedings unless life is put into it by the court in the form of restoration. 19. Be that as it may, W.P. No. 47883 of 2023 was dismissed by the Lahore High Court, Rawalpindi Bench for non-prosecution on 24.1.2024 whereas the instant W.P. No. 4560 of 2023 was filed before this Court on 30.12.2023. Thus it transpires that the day when W.P. No. 4560 of 2023 was filed before this Court challenging the Impugned Orders, SCN I from which the Impugned Order I arose was under challenge before the Lahore High Court, Rawalpindi Bench. 20. Interestingly enough, SCN II from which the Impugned Order II arises had been challenged before this Court in W.P. No. 2004 of 2023 which was dismissed on 25.9.2023 against which an ICA was filed and is pending since 18.10.2023. 21. Going by the argument submitted on behalf of the ECP, Impugned Order and Notification I should have been challenged before the Lahore High Court, Rawalpindi Bench whereas the Impugned Order and Notification II should have been challenged before this Court. 22. However, let us consider whether the Impugned Orders and Notifications could be challenged by way of separate petitions before two different High Courts. The subject matter of both the
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Impugned Orders and Notifications is for the ECP to conduct trial of the alleged contempt against the Petitioner in Adyala Jail. The reason stated in the Impugned Order I for the jail trial is the contempt proceedings against Imran Khan to be conducted in Adyala Jail, Rawalpindi while the reason given in the Impugned Order II is similar matters fixed for proceedings in Adyala Jail. Thus the reason given in the subsequent Impugned Order II is the pendency of the proceedings in Adyala Jail pursuant to inter alia the Impugned Order I. The purported reasons for the jail trial in the Impugned Orders I and II are therefore inextricably linked with each other. The Petitioner has challenged both the Impugned Orders and Notifications on the same grounds. 23. In the case of Muslim Commercial Bank Limited (Supra), the Supreme Court and in the case of Mirpurkhas Sugar Mills Limited vs. Federation of Pakistan, 2013 MLD 433 the Sindh High Court held that invoking the Constitutional jurisdiction of different High Courts on the same subject matter seeking the same relief on the same grounds or different grounds is not permissible. In view of the foregoing pronouncements, the Impugned Orders I and II could not be challenged in two different High Courts given that the subject matter as well as the relief prayed for would essentially be the same and the grounds identical. Therefore, to avoid the possibility of a conflict in judgment, the Petitioner was constrained to file one petition challenging both the Impugned Orders and Notifications. It is also not out of place to observe that conflicting judgments with regard to the Impugned Orders could have resulted in an absurd situation. 24. Had the Petitioner challenged both the Impugned Orders and Notifications before the Lahore High Court, Rawalpindi Bench it would have invited the Respondents' objection to the jurisdiction of the Lahore High Court, Rawalpindi Bench on exactly the same ground as raised before this Court by submitting that SCN II from which the Impugned Order and Notification II arose was heard and dismissed by this Court which is also seized of ICA No. 354 of 2023 against the Judgment dated 25.9.2023 passed in W.P. No. 2004 of 2023. Since SCNs I and II were both challenged before two different High Courts, no matter which High Court the Petitioner approached to challenge the Impugned Orders and Notifications, the ECP would object to the jurisdiction given the pendency of the writ challenging the other SCN in the other High Court. However, the Petitioner cannot be left remediless in such circumstances. 25. Moreover, the writ petition filed before the Lahore High Court, Rawalpindi Bench to challenge SCN I has been dismissed for non-prosecution and the restoration application has not yet been decided. Although the dismissal happened after the filing of the instant petition, this Court can take into consideration subsequent events for the purpose of giving complete and effective relief in a case[1]. As such, I hold that the instant writ petitions are maintainable. Whether the Writs have become Infructuous as the Petitioner is no longer in Jail? 26. The Petitioner filed W.P. No. 4560 of 2023 seeking setting aside of the Impugned Orders and for directions to proceed with the holding of the proceedings at the ECP premises on 30.12.2023 while the charge against the Petitioner pursuant to Impugned Order I was framed in Adyala Jail on 3-1- 2024. Given that the charge pursuant to Impugned Order I was framed in Adyala Jail during pendency of W.P. No. 4560 of 2023, the same has not become infructuous as the determination as to whether or not the Impugned Order I is liable to be set aside will impact the charge that was framed in jail. 27. The ECP argued that setting aside the Impugned Order I will not have the effect of setting aside the charge framed in jail pursuant to the Impugned Order I. In this regard, she highlighted that the initial prayer was not for setting aside of the Impugned Orders rather was only for direction to proceed in open court. The Petitioner sought setting aside of the Impugned Orders by seeking amendment in the prayer clause of the W.P. 4560 of 2023 on 24.1.2024 which was allowed by this Court on 02 02-2024 whereas charge had already been framed on 03.1.2024. The learned counsel for the ECP argued that the Petitioner has not prayed for declaration that the Impugned Order I is
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void ab initio and as such setting aside of the Impugned Orders would take effect from the date of amendment in prayer and not from the date of institution of the writ petition. 28. This argument is misconceived in view of Mst. Barkat Bibi vs. Khushi Muhammad and others, 1994 SCMR 2240 wherein it was held that once an amendment is granted it relates back to the date when the suit was filed. This dictum has been consistently applied by the Superior Courts.[2] Thus, in case the Impugned Order I is set aside, it will be set aside from the date of institution of W.P. No. 4560 of 2023 in which case the proceedings held pursuant to the Impugned Order I will necessarily have to fall to the ground.[3] 29. Insofar as the Impugned Order and Notifications II are concerned, neither charge has been framed against the Petitioner nor any other proceedings have been held in Adyala Jail pursuant thereto whereas the Petitioner has been released…
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