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Petitioner: Aaam Log Ittehad & another VS Respondent: The Election Commission of Pakistan & others
Court Name: Sindh High Court Judge(s): Aqeel Ahmed Abbasi, Zulfiqar Ahmad Khan Title:Aaam Log Ittehad & another vs The Election Commission of Pakistan &
others Case No.: Constitutional Petition No.D-444 of 2019 Date of Judgment:2020-06-12 Reported As: PLD 2020 Sindh 616, 2020 SHC 392 Result: Petition disposed off Judgment Aqeel Ahmed Abbasi, J Instant writ of quo-warranto has been filed by petitioner No.1, namely , Aam Log Ittehad, a political party , through its Secretary General, namely , Mr. Azhar Jamil, and petition er No.2, namely , Mr. Wajihuddin Ahmed [former Judge of Honourable Supreme Court of Pakistan), in his capacity as human rights and political activist, challenging the appointment of respondent No.2 to 5, namely , (i) Justice (Retired) Shakeel Ahmed Baloch, former Judge, Balochistan High Court; (ii) Justice (Retired) Irshad Qaiser , former Judge, Peshawar High Court; (iii) Justice (Retired) Altaf Ibrahim Qureshi, former Judge Lahore High Court; & (iv) Abdul Ghaf far, a former bureaucrat, who according to petitioners, have been appointed in violation of Article 207 of the Constitution of Islamic Republic of Pakistan, 1973, which provides that "a person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology , before the expiration of two years after he has ceased to hold that office". While giving particular of respondents No.2 to 5 in the Memo of Petition, it has been stated that respondent No.2, Justice (Retired) Shakeel Ahmed Baloch resigned as Judge of the Balochistan High Court on 21.07.2016, some ten days before his retirement and took oath of office as Member of the Election Commission of Pakistan from Balochistan, five days' after his resignation. That respondent No.3, Justice (Retired) Irshad Qaiser , became the first ever woman member of the Election Commission within 45 days of her retirement as Judge of the Peshawar High Court on 14.06.2016. That respondent No.4, Justice (Retired ) Altaf Ibrahim Qureshi, retired as a Judge of the Lahore High Court on 05.03.2015 and was appointed to the Election Commission of Pakistan in July 2016 , before expiry of period of two years' from the date of his retirement, whereas, respondent No.5, Mr.Abdul Ghaf far, the first ever retired bureaucrat to have been picked as Member of the Election Commission of Pakistan, whose name, according to petitioners, was found on the Exit Control List
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(ECL) over a Rupees Two Billion alleged corruption case. It has been further stated by the petitioners that respondents No.2 to 5 are otherwise ineligible for the office of Members of the Election Commission of Pakistan, as they were inducted under a covert understanding between the PML(N) and the PPP, whereas, according to petitioners, there has been violation of the Constitutional provisions and parliamentary procedure in the appointment of respondents No.2 to 5. On the above stated grounds, petitioners have sought following:- "It is therefore, prayed that this Honourable Court may graciously be pleased to issue Orders in the nature of writs of Quo Warranto i.e. under what authority they hold office, against the Respondents No.2 to 5 and, declaring each of them to be holding office without lawful authority , be further pleased to declare their offices vacant and direct the Parliament to duly and properly fill up the four vacancies, thus caused under the Orders of this Honourable Court." 2. At the preliminary stage of proceedings in the instant case, petitioners were confronted by a Divisional Bench of this Court vide order dated 30.01.2019 to the effect that since respondents No.2 and 5 stood retired w.e.f. 26.01.2019, whether instant petition could still be maintained against such respondents who are no more in public office. In response to which, petitioners submitted that petition could be maintained against such respondents as the petitioners are entitled to seek a declaration for the return of benefits received by the said respondents, in the event their appointment is declared to be illegal or irregular . With hereinabove observations, Notices of instant petition were issued to respondents as well as DAG, which were duly served upon all the respondents, who have been represented through their counsel. Respondent No.2 has been represented by M/s.Munir A . Malik & Zia-ul- Haq Makhdoom, respondents No.3 & 4 have been represented by M/s. Mian Abdul Rauf Law Associates, whereas, respondent No.5 has been represented by M/s. Mansoor-ul-Haq Solangi & Co. Preliminary objections as to maintainability and detailed comments on the averments in the petition have been filed on behalf of all the respondents except respondent No.2. In the comments filed on behalf of respondent No.1 i.e. Election Commission of Pakistan through learned DAG, it has been stated that writ of quo warranto has been filed against respondents No.2 to 5, whereas, no relief has been sought against respondent No.1. However , it has been stated that instant petition is misconceived as appointment of Members of Election Commission is made by the President of Pakistan under Article 218(2)(a)(b) of the Constitution of Islamic Republic of Pakistan, 1973, whereas, provisions of Article 207(2) of the Constitution are not attracted in the instant case, for the reason that the procedure for appointment of Chief Election Commissioner and the Members of the Election Commission of Pakistan has been provided under Articles 213 read with Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, and not under Article 207 of the Constitution. In the comments filed on behalf of respondent No.3, prelim inary objection has been raised on the ground that instant petition has been filed with malafide intention, and as a counter blast to the decision rendered by respondents No.2 to 5, against the petitioners, whereby , petitioners were held to be disqualified from contesting the elections. It has been further stated that petition is also hit by laches as it has been filed after inordinate unexplained delay of more than two years from the date of their appointments. It has been further stated that provisions of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973 are not attracted in the instant case, as according to respondents No.3 & 4, the appointment of Chairman and Members of Election Commission of Pakistan is made under Article 213 read with Article 218 of the Constitution. In the detailed comments filed on behalf of respondents No.3 and 4, it has been further stated that the Members of the Election Commission of Pakistan can only be removed by the Supreme Judicial Council in terms of Article 209 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, writ of quo-warranto against respondents is not maintainable, hence liable to be dismissed. Similarly , in the comments filed on behalf of respondent No.5, beside raising objections as to maintainability of petition on various grounds, it has been stated that all the respondents, including respondent No.5 were appointed by the President of Pakistan on the recommendation of the Prime Minister of Pakistan with mutual consent of two largest political parties of Pakistan i.e. PML(N) and PPP, within the framework of Constitution and there is neither any violation of any Constitutional provision, nor there is any malafide on the part of appointing authority in this regard. An objection as to maintainability of instant petition has also been raised on the ground of non-joinder of necessary parties, as according to respondent No.5, neither the President of Pakistan or the Federation of Pakistan have been impleaded as party in the instant case. Without prejudice to aforesaid objections on the maintainability of instant petition, it has been further stated that since, the
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respondent No.5 stood retired on 26.01.2019, therefore, writ of quo-warranto cannot be issued against such respondent in terms of Article 199(1)(b)(ii) of the Constitution, as he is no more holding the of fice of profit. 3. All the learned counsel for the parties, including petitioner No.2 appearing in person, as well as the learned Assistant Attorney General, have argued their case in detail, by referring to relevant Constitutional provisions, Election Laws repealed as well as current, and also referred to various judgments of Honourable Supreme Court of Pakistan and judgments of different High Courts to support their respective pleas and the arguments. Their arguments on the legal issues involved in the instant petition can be summarized in the following terms:- 4. According to petitioners, the appointme nt of respondents No.2 to 5 has been made in violation of Article 207(2) of the Constriction of the Constitution of Islamic Republic of Pakistan, 1973, which provides that "a person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology , before the expiration of two years after he has ceased to hold that office". That laches are not attracted in writ petitions of quo warranto, whereas, an illegal appointment in violation of Constitutional provisions can be challenged before this Court under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973. It has been argued that when instant writ petition of quo-warranto was filed on 29.12.2018, all the respondents were holding their offices as Members of Election Commission of Pakistan, whereas, respondent No.2 and respondent No.5 have retired on 26.01.2019, during pendency of instant petition, whereas, according to the petitioners, while deciding a writ of quo-warranto under Article 199 (2)(b)(ii) of the Constitution, this Court has the authority to issue a declaration to the effect that appointment of respondent Nos.2 to 5 as Members of Election Commission of Pakistan was illegal and in violation of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973, and can also issue directions to respondents to return the salaries and other benefits received by them during the period of their illegal appointment on such post. It has been argued that office of Election Commission of Pakistan is not a judicial or quasi judicial office, on the contrary , it is an executive office established for the purposes of holding fair and transparent elections of parliament while exercising executive and administrative functions, therefore, the embargo of Article 207(2) i.e. expiry of two years from the date such person ceases to hold that office, is attracted in the case of respondents. In support of such contention, reference to provisions of sub-Article (2) of Article 207 has been made by the petitioners, wherein, according to petitioners, an exception has been created in respect of the office of the Chief Election Commissioner or of Chairman or Member of a law commission or of Chairman or Member of the Council of Islamic Ideology , whereas, according to petitioners, no exception has been created in respect of Members of the Election Commission, which means that Members of Election Commission are not included within the exceptions, theref ore, cannot hold any judicial or quasi judicial office before expiry of two years. It has been further argued on behalf of the petitioners that provisions of Part VIII Chapter 1, Article 213 to 218 of the Constitution are neither in conflict nor any overriding effect has been given to such provisions on the provision of Article 207, which are specifically relatable to a Judge of Supreme Court or of a High Court, therefore, the bar of two years under sub-Article (2) of Article 207 is attracted in the case of respondents No.2, 3 and 4, who have been appointed well before expiry of two years from the date of their retirement as Judges of High Courts. In response to an objection raised on behalf of respondents that the appointment of respondents No.2 to 5 cannot be challenged by filing a writ of quo warranto under Article 199, whereas, their removal can only be made by the Supreme Judicial Council of Pakistan through a Reference filed under Article 209 of the Constitution, it has been argued on behalf of petitioners that such objection is misconceived as the Article 209 provides a procedure for removal from service provided such person is found to have been guilty of misconduct and not capable of performing the duties of his office by reason of physical or mentally incapacity . Whereas, according to petitioners, Article 199(1)(b)(ii) of the Constitution is the only remedy , whereby , the very appointment of a holder of public office of profit can be challenged by filing writ of quo warranto. In support of their arguments, petitioners have placed reliance on the following case laws:- 1) Benazir Bhutto v . Federation of Pakistan ( PLD 1988 SC 416 ) 2) Muhammad Hanif Abbasi v . Imran Khan Niazi ( PLD 2018 SC 189 )
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3) Ibrahim v . The Settlement Commissioner and others ( 1980 CLC 1245 ) 4) Muhammad Yaseen v . Federation of Pakistan and others ( PLD 2012 SC 132 ) 5) In the matter of Human Rights Case No.3654/2018 regarding appointment of Managing Director , Pakistan Television Corporation ( 2019 SCMR 1 ) 6) Asghar Hussain v . Election Commission of Pakistan ( PLD 1968 SC 387 ) 7) Al-Iblagh Ltd. v . The Copyright Board ( 1985 SCMR 758 ) 8) Trading Corporation of Pakistan v . Pak Agro Forestry Corp ( 2000 SCMR 1703 ) 9) Sardar Muhammad v . Federation of Pakistan ( PLD 2013 Lahore 343 ) 10) Rashid Latif v . Federation of Pakistan ( PLD 2014 Sindh 135 ) 11) The Federal Government v . Ayyan Ali (2017 SCMR 1 179) 5. During the course of hearing instant petition, an application under Order VI Rule 17 CPC was filed on behalf of the petitioners, whereby , petitioners sought amendment in the prayer clause of instant petition, in view of the fact that during pendency of this petition, respondents No.2 and 5 stood retired, therefore, it has been prayed that while taking note of the above factual changes, respondents, who have received the salary along with other financial benefits during the period of their service, are liable to refund the same, to be depo sited in the National Exchequer . Notice of the said application was also issued to the respondents, who filed their objections on such application, however , vide order dated 28.06.2019, it was clarified that instead of passing a separate order on such application at this juncture of proceedings when the matter was already heard at length on merits, petition will be finally heard and decided at katcha peshi stage along with all the pending applications, whereas, none of the parties objected to disposal of the listed application along with main petition in the above terms. The matter has been argued in detail by petitioner No.2 and all the learned counsel for the parties, whereas, on behalf of respondent No.2, Mr. Zia-ul- Haq Makhdoom Advocate, argued the case, and Mr. Mansoor-ul-Haq Solangi Advocate made his submission on behalf of respondent No.5, however , learned counsel representing respondents No.3 & 4, whose name and signatures are available on the power of attorney/V akalatnama filed by them on behalf of respondent No.3, including M/s. Mian Abdul Rauf, Safdar and Asma Javed Advocates, neither shown appearance in Court, nor argued the case inspite of repeated opportunities provided in this regard, whereas, Ms.Roheela Nazar , whose name and signature are also appearing in the power of attorney/V akalatnama filed on behalf of respondent No.3 & 4, adopted the arguments of the learned counsel for respondent Nos.2 & 5, and also undertook to file written synopses within three days. However , no such written synopsis were filed, thereafter arguments of the petitioner No.2 and the learned counsel for the parties and the learned Asstt. Attorney General, were finally heard and the judgment was reserved on 02.09.2019. 6. However , before the announcement of the judgment, Registrar of this Court placed on record a letter dated 27.09.2019 issued by Assistant Registrar (IMP), Supreme Court of Pakistan, Islamabad, along with its annexures including gist of order dated 26.09.2019 passed by the Hon'ble Supreme Court in C.P.No.18/2019 (Justice (R) Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others, which is reproduced hereunder for the sake of reference:- "Accordingly , on the one hand, for the lack of an express opportunity of exercising such a right being expressly granted to the petitioners before us (respondent No.3 & 4 in the proceedings of Constitution Petition No.D-444 of 2019) and on the other hand, for the default of the petitioners to produce their counsel for making submissions before the Sindh High Court, we observe that it would suffice if the learned High Court Bench that has reserved the judgment may whilst writing the same take into consideration written submission s that are filed on behalf of the petitioners on or before 30.09.2019. These written submissions shall not include any new material or plea. In the case petitioners do not file their submissions on or before such date in the office of the Registrar of the High Court of Sindh (for their placement on the case file of Constitution Petition No.D-444 of 2019), the learned High Court Bench that has heard the matter may forthwith proceed to announce its judgment at an early date. This petition stands disposed of in above terms." Along with aforesaid letter copies of written arguments on behalf of respondents No.1 as well as on behalf of respondents No.3 and 4 have also been attached, which have also been examined and taken into consideration,
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while writing instant judgment as per directions of the Honourable Supreme Court of Pakistan as contained in the above order . The gist of the written subm ission of respondent No.1 is that Election Commission of Pakistan is a Constitutional Body created under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, which besides exercising administrative and executive functions, also performs judicial and quasi-judicial functions as provided under the Constitution of Election Laws. Reference in this regard has been made to Article 63A of the Constitution, Section 103AA of The Repre sentation of the People Act, 1976 (ROP A), Section 4, 9(4) and (5), 166, 202(6) and Section 234 of the Election Act, 2017. 7. In addition to herein above provisions of Constitution, reference to the provisions of Sections 144, 155, 190, 191, 192, 193, 199, 202 and 234 of the Election Act, 2017, has also been made, which provisions relate to powers of Election Tribunal, appeal against the decision of Election Tribunal, cognizance and trial of an offence under the Election Act, 2017, prosecution of offence by public offices and provisions relating to reporting, investigation, summons, warrants, inquiry , trial of an offence or other ancillary matters where any provision does not exist in the Election Act, 2017 or the Rules. It has been argued by the learned counsel for respondents that for the first time permanent Election Commission consisting of Chief Election Commissioner and four members has been constituted after Constitutional (18th Amendment) Act, 2010, whereas, after the judgment in the case of Benazir Bhutto vs. Federation of Pakistan, various amendments have been made in the election laws and the Constitution, whereby power of Tribunals have been given to the Election Commission of Pakistan and appeal against the decision of the Commission has been provided before the Honourable Supreme Court of Pakistan. Reliance has been placed on the case of Aftab Shaban Mirani and others vs. Muhammad Ibrahim & Others (PLD 2008 SC 779) and the case of Raja Shaukat Aziz Bhatti vs. Major (R) Iftikhar Mahmood Kiani and others (PLD 2018 SC 578), whereas, reference has also been made to the case of Shaikh Riaz-ul-Haq and another vs. Federation of Pakistan and others (PLD 2013 SC 501), wherein, according to learned counsel for respondents it has been held that "as the appeal against the judgment of Tribunal lies before the Honourable Supreme Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the Tribunal fall under the judicial hierarchy ." While concluding their arguments in this regard, it has been contended by the learned counsel for respondents that since the appeal against the judgment/order of Election Commission of Pakistan lies before the Honourable Supreme Court under Article 63A of the Constitution and Section 9(5), read with Section 206 of the Election Act, 2017, as well as under Section 103AA(v) of the ROP A, 1976, therefore, while following the same dicta as laid down in the case of Shaikh Riaz-ul-Haq vs. Federation of Pakistan (PLD 2013 SC 501) it may be declared that the Election Commission of Pakistan also falls under the judicial hierarchy . 8. Above contention of the learned counsel for respondents and the objection raised with regard to the maintainability of the instant petition on the ground that the bar of two years as provided under sub Article (2) of Article 207 of the Constitution is not attracted in the case of appointment to the post of Member Election Commission of Pakistan, has been vehe mently controverted by the learned coun sel for the petitioners who have submitted that if this would have been the case then the framers of the Constituti on would not have excluded the office of Chief Election Commissioner from the purview of application of bar of two years after the Judge seizes to hold that office. According to petitioners, in terms of Section 2(ix) of the Election Act, 2017, Commission means the Election Commission of Pakistan constituted under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, which provides for constitution of a permanent commission, consisting of the Chairman of Election Commission as well as four members, one from each province. It has been further contended by the petitioners that the provisions relating to establishment and jurisdiction of Court as well as Administrative Courts and Tribunals are provided under Chapter-I (the Courts ), Part-VII (Judicature) of the Constitution through Articles 175, 302, 212 whereas the provisions relating to the Constitution of Election Commission of Pakistan and the appointment of Chief Election Commissioner and Members of the Election Com mission of Pakistan along with their powers and functions has been provided under Part-VIII (Elections), Chapter-I (Chief Election Commission and Elections) (Commission) under Article 213 to 221 of the Constitution of Islamic Republic of Pakistan, 1973, whereas, under Chapter-II of Part-VIII of the Constitution, the provisions relating to Electoral laws and conduct of elections has been provided under Article 222 to 226 of the Constitution of Islamic Republic of Pakistan, 1973.
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According to learned counsel for the petitioners, the provisions relating to Constitution of Election Commission of Pakistan, its functions and powers cannot be equated with the provisions relating to the constitution of Election Tribunal and its functions and powers as prescribed by the Constitution and the Election Act, 2017. It has been further contended that mere exercise of some of the powers given under the Election Act, 2017 to the Election Commission of Pakistan, and the powers of a Court including powers to summon witnesses, conduct summary inquiry and call for the evidence would not render the office of Election Commission of Pakistan as a judicial or quasi-judicial office. According to the petitioners such interpretation besides being contrary to various judgments of the Honourable Supreme Court of Pakistan, is contrary to various provisions of the Election Act, 2017, which clearly provide that the Commission exercises its powers and perform its functions to ensure holding of fair elections while exercising executive authority , and also to decide complaints, election disputes in accordance with law, therefore, such exercise of authority by the Election Commission of Pakistan does not fall within the definition of judicial or quasi-judicial functions. Reliance in this regard has been placed on the case of Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and Muhammad Hanif Abbasi vs. Imran Khan Niazi and others (PLD 2018 Supreme Court 189). 9. Before examining the merits of instant petition, we may first address the preliminary…
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