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Official Citation: 2024 PLD 642
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2024
Decision Date: 2024-12-31
Parties: Adil Khan Bazai vs Election Commission of Pakistan and another
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2024-12-31, officially reported as 2024 PLD 642. In this matter between Adil Khan Bazai and Election Commission of Pakistan and another, 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 PLD 2024 SC 642
Court Name: Supreme Court of Pakistan Judge(s): Ayesha A. Malik, Syed Mansoor Ali Shah, Aqeel Ahmed Abbasi Title: Adil Khan Bazai vs Election Commission of Pakistan and another Case No.:Crl.O. P. No.1/2025, Civil Appeals Nos.1507 and 1508 of 2024, CPLA 836-K of
JUDGMENT
Reported As: 2025 SCP 14, 2025 SCP 15, 2025 SCP 17, 2025 SCP 19, 2025 SCP 20 Result: Order Accordingly Judgment
JUDGMENT Dated: 12 December 2024 Syed Mansoor Ali Shah, J.- These two appeals have been filed under clause (5) of Article 63A of the Constitution of the Islamic Republic of Pakistan ("Constitution") to challenge the orders dated 21 November 2024 ("impugned orders") passed by the Election Commission of Pakistan ("Commission") regarding the declarations made by the Party Head of the Pakistan Muslim League (N) ("PML-N"), which were referred to the Commission by the Speaker of the National Assembly under clause (3) of Article 63A of the Constitution. In the declarations, dated 21 and 31 October 2024, the Party Head of PML-N declared that the appellant had intentionally defected from the Parliamentary Party of PML-N, on the grounds of his sitting on the opposition benches in the National Assembly with the Parliamentary Party of the Sunni Ittehad Council ("SIC") and his abstaining from voting on the Finance Bill 2024 (Money Bill) and the Constitution (26th Amendment) Bill, in contravention of the directions issued by the Parliamentary Party of PML-N. By the impugned orders, the Commission confirmed these declarations under clause (4) of Article 63A of the Constitution. Consequently, the appellant was de seated from his membership in the National Assembly, and his seat (NA-262) was declared vacant.2. Briefly, the background facts of the case are that the appellant contested for a seat in the National Assembly from NA-262, Quetta- I, in the 2024 general elections held on 8 February 2024. In the poll, the appellant secured 20,278 votes as an independent candidate, while the runner-up candidate, belonging to the Jamiat Ulema-e-Islam Pakistan, secured 12,887 votes and the PML-N candidate received 2,510 votes.
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Having secured the highest number of votes, the Commission declared the appellant elected as a returned candidate to the said seat in the National Assembly as an independent candidate, through its notification dated 15 February 2024, issued under Section 98 of the Elections Act 2017 ("Elections Act"). Subsequently, on 18 February 2024, a letter was submitted to the Commission by Mr. Muhammad Shahbaz Sharif, the then President of PML-N, under Rule 92(6) of the Election Rules 2017, informing the Commission that the appellant had joined PML-N through a consent affidavit dated 16 February 2024; whereas, on 20 February 2024, a similar letter was submitted to the Commission by Sahibzada Muhammad Hamid Raza, the Chairman of the Sunni Ittehad Council ("SIC"), notifying the Commission that the appellant had joined SIC through a consent affidavit dated 20 February 2024. The Commission accepted the letter received of the President of PML-N but rejected the letter of the Chairman of SIC. However, during the sessions of the National Assembly, the appellant used to sit on the opposition benches with members of the Parliamentary Party of SIC, and also did not vote on the Finance Bill 2024 and the 26th Constitutional Amendment Bill, contrary to the directions issued by the Parliamentary Party of PML-N. Consequently, the President of PML-N declared the appellant's defection from the political party, PML-N, and the Commission, by the impugned orders, confirmed these declarations. Hence, these appeals have been filed by the appellant. 3. Before the Commission, as well as before this Court, the appellant took the stance that he never joined PML-N; therefore, the question of his defection from that political party does not arise. The consent affidavit dated 16 February 2024, purporting to show his joining of PML-N, is fake and fabricated. In this regard, he has instituted a civil suit and filed a criminal complaint. In the civil suit, the said consent affidavit has been suspended, and in the preliminary inquiry conducted in the criminal complaint, it has been found to be fake and fabricated. The appellant elaborated that he belongs to Pakistan Tehreek-e-Insaf ("PTI") and initially filed his nomination paper to contest the seat of NA-262, Quetta-I, under the PTI party ticket. However, due to a dispute regarding PTI's intra- party elections and its election symbol, his nomination paper as a PTI candidate was rejected. Consequently, he filed another nomination paper as an independent candidate, and contested and won the election for the said seat as an independent candidate. Subsequently, he joined SIC through a consent affidavit dated 20 February 2024, in accordance with PTI's party decision. However, the joining of independent candidates to SIC has not been recognized as constitutionally valid by the Supreme Court in its judgment passed in Civil Appeal No. 333 of 2024 (Sunni Ittehad Council v. Election Commission of Pakistan); therefore, he remains an independent member of the National Assembly. 4. On the other hand, the stance of the Party Head of PML-N was that the appellant joined PML-N through his consent affidavit dated 16 February 2024 and did not challenge the said affidavit until he was declared to have defected from PML-N. The civil suit and criminal complaint filed by the appellant disputing the genuineness of the consent affidavit are an afterthought, intended solely to evade the consequences of defection. Once a consent affidavit for joining a political party is filed, it becomes irrevocable and cannot be substituted or withdrawn. 5. By the impugned orders, the Commission accepted the stance of the Party Head of PML-N and concluded that, after being elected as an independent candidate, the appellant joined PML-N on 16 February 2024. It further held that the appellant acted contrary to the directions issued by the Parliamentary Party of PML-N by abstaining from voting on the Finance Bill 2024 and the 26th Constitutional Amendment Bill. Consequently, the Commission confirmed the declarations made by the Party Head of PML-N and pronounced that the appellant had ceased to be a member of the National Assembly and that his seat had become vacant. 6. In addition to the above respective stances of the parties, the learned counsel for the appellant vehemently contended that the Commission does not possess jurisdiction under Article 63A of the
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Constitution to decide the disputed question of whether the consent affidavit dated 16 February 2024 is genuine or fake, and consequently, whether the appellant is a member of the Parliamentary Party of PML-N. He argued that only a Civil Court, not the Commission, is competent to adjudicate upon this disputed fact. Furthermore, he contended that the Commission's decision on this matter is not just, fair and reasonable. These contentions were refuted by both the learned counsel for the Party Head of PML-N and the Commission, who submitted that the Commission has the power to decide this question and has rightly determined the genuineness of the said consent affidavit. 7. We have considered the respective stances and contentions of the parties and, with the able assistance of their learned counsel, examined the material available on the record of the case. 8. Before examining the correctness of the Commission's decision regarding the genuineness of the appellant's consent affidavit dated 16 February 2024 and his alleged defection from PML-N, it would be expedient to first address the question of the Commission's jurisdiction: Does a Civil Court or the Commission have the jurisdiction to determine whether the member concerned is a member of the Parliamentary Party of a political party in proceedings under clauses (3) and (4) of Article 63A of the Constitution, for the purpose of determining his alleged defection from that political party? 9. A plain reading of Article 63A of the Constitution reveals that it grants power to the Party Head of a political party to declare that a member of the Parliamentary Party[1] of that political party has defected, if the member: (a) resigns from the membership of their political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to: (i) election of the Prime Minister or the Chief Minister, (ii) a vote of confidence or a vote of no-confidence, or (iii) a Money Bill or a Constitution (Amendment) Bill.[2] The use of the word "may" in granting this power to the Party Head indicates that its exercise is discretionary, not obligatory. Even if a member defaults under grounds (a) or (b), the Party Head is not obligated to declare defection necessarily and he may choose not to exercise this power. Furthermore, the requirement of providing the member concerned an opportunity to show cause as to why such a declaration should not be made against him underscores that the Party Head must exercise this power justly, fairly and reasonably, rather than whimsically or arbitrarily. The original jurisdiction conferred upon the Commission, as well as the appellate jurisdiction of this Court, to confirm or otherwise the declaration made by the Party Head, therefore, extends to examining whether the Party Head has exercised this power justly, fairly and reasonably.[3] 10. A plain reading of clause (1) of Article 63A also makes it evident that the power to make a declaration of defection has been granted only to the Party Head of a political party, not to any other office-bearer of the party, and that it can be exercised only in relation to a member of the Parliamentary Party of that political party in the House, not to any other member of the House. The existence of these two facts is a condition precedent for the exercise of the power to make the declaration of defection against a member of the House and for the exercise of jurisdiction by the Commission to confirm such a declaration. 11. However, Article 63A has not expressly conferred power on the Commission to determine the existence of these facts before exercising its jurisdiction to confirm, or otherwise, the declaration. Therefore, the question as to the power of the Commission to decide these preliminary or collateral facts, also referred to as jurisdictional facts, arose in the cases of Bahadur Khan Bangulzai[4] and Giyan Chand.[5] In Bahadur Khan Bangulzai, the fact in dispute was whether the person who made the declaration of defection was the Party Head of the political party concerned; while in Giyan Chand, the dispute was whether the person (a member of the House) against whom the
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declaration of defection had been made was a member of the Parliamentary Party of the political party whose Party Head had made the declaration, as is the case in the present matter. 12. In Bahadur Khan Bangulzai, the Balochistan High Court, after referring to several academic and judicial expositions on the doctrine of jurisdictional fact, concluded that "the Chief Election Commissioner has the jurisdiction to determine as to who is the head of the political party, being a jurisdictional fact. However, no powers are available to the Chief Election Commissioner for resolving inbuilt organisational structural disputes which might have cropped up in the folds of a political party." On appeal, this Court endorsed this conclusion and elaborated it further by holding that "if a plea is raised before the Chief Election Commissioner that the person who made the reference on account of alleged defection is not the head of the political party involved, the Chief Election Commissioner is obliged to examine the bona fides of such a plea. If the person who has made the reference as the Head of the political party involved has been acting as such in the past, the Chief Election Commissioner is supposed to proceed on the assumption that he is the Head of the political party involved. However, if he finds no reliable material to conclude that the person who made the reference is factually the Head of the political party involved, and the question relates to inbuilt organisational structural disputes within the political party, he may direct the parties to resolve the question through civil proceedings [in a Civil Court]." 13. In Giyan Chand, the Peshawar High Court observed that "the Chief Election Commissioner did not determine whether or not the jurisdictional fact in terms of Article 63-A of the Constitution existed in order to disqualify the petitioner" and that "Article 63-A of the Constitution prescribes certain facts as sine qua non for its application but none of the facts either existed or were proved against the petitioner by ANP inasmuch as the petitioner did not contest the election as a candidate or a nominee of ANP nor was he a member of ANP in terms of the requirements prescribed by the Constitution of ANP nor did he join ANP after being elected Member of the Assembly." 14. Since the decisions in both the above cases were primarily based on the doctrine of jurisdictional fact, we find it appropriate to briefly outline this doctrine as expounded in various judicial pronouncements. 15. The doctrine of jurisdictional fact connotes that if a certain state of facts must exist before a tribunal or authority can exercise the jurisdiction vested in it, such tribunal or authority may inquire into those facts to determine whether it has jurisdiction but cannot confer jurisdiction upon itself by making an erroneous decision regarding them. As per this doctrine, when a tribunal or authority is vested with jurisdiction limited to decide on a particular matter, it generally has the ancillary power to inquire into and ascertain the existence of facts collateral to that matter when their existence is disputed before it. This power to ascertain collateral facts--referred to as jurisdictional facts-forms the foundation for the exercise of its jurisdiction. A jurisdictional fact is, thus, one upon whose existence the assumption and exercise of jurisdiction by a tribunal or authority depend. It is a prerequisite fact whose existence must be ascertained before jurisdiction over a particular matter can be properly assumed and exercised. Its existence is a sine qua non or condition precedent to the assumption and exercise of jurisdiction. However, a tribunal or authority with jurisdiction limited to a particular matter cannot assume jurisdiction over a matter not conferred upon it by erroneously deciding the jurisdictional fact. An error in determining a jurisdictional fact constitutes a jurisdictional error, rendering the order passed without jurisdiction. Therefore, when a tribunal or authority is established by law to exercise jurisdiction over a particular matter, the legislature defines the scope of its powers. It may, either expressly or by necessary implication, stipulate that jurisdiction can only be assumed and exercised if a particular state of facts exists or is shown to exist. In such cases, though the tribunal or authority is obligated to objectively ascertain, in the event of a dispute, whether that state of facts exists before exercising jurisdiction over the matter,
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its decision on the existence of that state of facts--the jurisdictional fact--is not conclusive. Instead, the decision is subject to challenge before and final determination by the civil courts of plenary jurisdiction or is subject to correction by the constitutional courts through judicial review. However, where the legislature grants the power to determine not only the substantive matter but also the preliminary or collateral facts referred to as jurisdictional facts--upon which further jurisdiction depends, the tribunal or authority has the power to conclusively determine whether the jurisdictional fact exists. In the latter case, its decision on jurisdictional facts stands on the same footing as a decision on the fact in issue or the adjudicatory fact regarding the substantive matter, and is likewise final, subject to any right of appeal to a higher forum; it cannot be challenged before a Civil Court of plenary jurisdiction.[6] 16. There is, therefore, a distinction in the legal effect of the ascertainment or determination of a jurisdictional fact by a tribunal or authority with limited jurisdiction, as expounded by Lord Esher, M.R.,[7] and subsequently adopted by this Court[8] and the Indian Supreme Court,[9] in two scenarios: (1) where the legislature entrusts a tribunal or authority with jurisdiction to adjudicate upon a matter, including the power to determine whether the preliminary state of facts on which its jurisdiction depends exists; and (2) where the legislature confers jurisdiction on such a tribunal or authority to proceed only if a certain state of facts exists or is shown to exist. In the former case, the tribunal or authority has the power to conclusively determine jurisdictional facts, whereas in the latter case, it only objectively ascertains the existence of the state of facts before exercising the jurisdiction conferred upon it. Such a finding must, of course, be based on the weight of the material placed before the tribunal or authority and not made arbitrarily or whimsically, as it remains subject to correction by an appellate forum, if any, or by constitutional courts through judicial review, in addition to final determination by civil courts of plenary jurisdiction.[10] 17. Article 63A of the Constitution does not explicitly entrust the Commission with the power to determine the preliminary state of facts jurisdictional facts--on which its jurisdiction to confirm the declaration depends. Therefore, the present matter falls within the second of the two categories described above. The Commission has no power to conclusively determine jurisdictional facts but has only the power to objectively ascertain the existence of jurisdictional facts before exercising the jurisdiction conferred upon it under clauses (3) and (4) of Article 63A of the Constitution, for the purpose of determining the alleged defection of a member from his political party. Its finding on a jurisdictional fact, such as whether the member concerned belongs to the Parliamentary Party of a political party, is not conclusive; rather, it is subject to correction by this Court, as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction. The question regarding the Commission's jurisdiction is answered accordingly. 18. Having thus answered the question of law, we now proceed to examine the correctness of the Commission's decision regarding the genuineness of the appellant's consent affidavit dated 16 February 2024 and consequently the ascertainment of the jurisdictional fact whether the appellant is a member of the Parliamentary Party of PML-N. 19. Clause (2) of Article 63A specifies two instances in which a member of a House becomes a member of a Parliamentary Party: (i) if the member is elected as a candidate or nominee of a political party, he automatically becomes a member of the Parliamentary Party constituted by that political party in the House, or (ii) if the member, having been elected as an independent candidate (i.e., not as a candidate or nominee of any political party), subsequently joins a Parliamentary Party through a written declaration. In the first instance, where no act by any person or authority is required for a member of the House to become part (member) of a Parliamentary Party in the House, no dispute can arise regarding the status of such a member. However, in the second instance, where the member's action--namely, a written declaration of joining a Parliamentary Party--is required, a dispute may arise concerning the genuineness or validity of
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such a written declaration. It is in the latter case that the necessity arises for the Commission, before confirming the declaration made by the Party Head, to ascertain the genuineness or validity of the written declaration made by the member, showing his joining of a particular political party. 20. As observed above, the finding on a jurisdictional fact must be based on the weight of the material placed before the court, tribunal or authority and cannot be made arbitrarily or whimsically. Therefore, it is incumbent upon us to examine and evaluate the weight of the material submitted by the parties before the Commission, as well as before this Court, in support of their respective assertions. 21. The material supporting the stance of the Party Head of PML-N comprises the consent affidavit dated 16 February 2024, showing the appellant's joining of PML-N. In disputing the genuineness of this affidavit, the appellant produced a copy of his consent affidavit dated 20 February 2024, demonstrating his affiliation with SIC. This affidavit bears both his thumb impressions and signatures, and by its submission to the Commission, the appellant implicitly negated the existence of any prior consent affidavit. Furthermore, the appellant submitted a record of his tweet dated 23 February 2024, wherein he expressly denied joining any other party, stating: "I, returned candidate of NA-262 Qta-1, have joined Sunni Ittehad Council. The details of which are: I have voluntarily joined SIC, and all the required documents have been handed over to and received [by the] Election Commission on 20.2.24 at 9:35 PM. I strongly deny joining any other party." 22. The appellant also produced photographs taken during the first session of the National Assembly on 29 February 2024, showing him wearing a badge bearing the photograph of the founding chairman of PTI, Mr. Imran Khan, while taking the oath and signing the roll of members. Additionally, Bulletin No. 1 of the National Assembly (1st Session 2024), available on the official website of the National Assembly, mentions the appellant as an independent member of the Assembly at serial No. 254. Extracts from the official website of the National Assembly, dated 27 September 2024, which also shows that even till the said date the appellant was an independent member of the National Assembly. The appellant further presented a Civil Court order dated 2 November 2024, suspending the operation of the consent affidavit dated 16 February 2024, as well as an inquiry report dated 5 November 2024 prepared by the SHO, PS, Civil Lines, Quetta, which concluded that the said affidavit appeared to be false and fabricated. Moreover, the appellant produced copies of an affidavit and a statement by Saeed Ahmad, Oath Commissioner, whereby the said Oath Commissioner categorically denied having attested the disputed consent affidavit. 23. The weight of the material produced by the parties in support of their respective assertions is self-evident and requires no elaborate discussion. The Commission, as well as this Court acting as its appellate forum, is obligated to objectively assess the genuineness and validity of the consent affidavit dated 16 February 2024, based on the prima facie probative value of the material produced before it. Upon such assessment, the consent affidavit dated 16 February 2024 attributed to the appellant is found to be neither genuine nor valid. 24. Additionally, the Party Head of PML-N has failed to demonstrate a single instance where the appellant acted as a member of PML-N's Parliamentary Party in the National Assembly. On the contrary, the Party Head himself stated in his declarations that the appellant sits on the opposition benches with members of SIC. In Bahadur Khan Bangulzai, this Court observed: "If the person who has made the reference as the Head of the political party involved has been acting as such in the past, the Chief Election Commissioner is supposed to proceed on the assumption that he is the Head of the political party involved." Applying the principle underlying this observation to the present case, where the appellant is not shown to have ever acted as a member of PML-N's Parliamentary Party but has consistently conducted himself as a member of SIC and PTI, the Commission ought to have proceeded on the assumption that the appellant is not a member of PML-N's Parliamentary Party.
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25. Therefore, in our considered view, the Commission's findings on the genuineness and validity of the consent affidavit dated 16 February 2024 are contrary to the weight of the material on record and are, therefore, legally unsustainable. Since the appellant is not found to be a member of PML- N's Parliamentary Party, the declarations made by the Party Head of PML-N regarding the appellant's defection from that party, and the confirmation thereof by the Commission through the impugned orders, were without jurisdiction. Consequently, these appeals are allowed. The…
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