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Official Citation: 2024 IHC 176
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2024
Decision Date: 2024-09-19
Parties: Syed Muhammad Ali Bokhari vs Federation of Pakistan etc
Ruling Summary: This decision was rendered by the Islamabad High Court on 2024-09-19, officially reported as 2024 IHC 176. In this matter between Syed Muhammad Ali Bokhari and Federation of Pakistan etc, 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 2024IHC176
Court Name: Islamabad High Court Judge(s): Aamer Farooq (C.J) Title: Syed Muhammad Ali Bokhari vs Federation of Pakistan etc Case No.: W.P. No.1796-2024 Date of Judgment:2024-09-19 Reported As: 2024 IHC 176, PLD 2025 Islamabad 48, PLJ 2025 Islamabad 1 Result: Petition Allowed
JUDGMENT
JUDGMENT AAMER FAROOQ C.J. This judgment shall decide instant writ petition as well as petitions mentioned in the Annexure attached herewith, as common questions are involved. 2. The petitioner, in W.P. No.1796-2024, contested the General Elections 2024 from NA-48 Islamabad along with respondent No.4, who was declared as returned candidate. Feeling aggrieved, he filed election petition before Election Tribunal appointed by Election Commission of Pakistan (ECP) through notification dated 17.02.2024. During course of proceedings, respondent No.4 filed transfer application under section 151 of the Elections Act, 2017 (the Act) before ECP, which stands allowed. The petitioner, in the instant petition, has challenged vires of The Elections (Amendment) Ordinance, 2024, whereby amendment was made in section 140 of the Act providing for appointment of a retired judge of a High Court as Election Tribunal without the consent of concerned Chief Justice and has also assailed order dated 04.06.2024, whereby jurisdiction was assumed by ECP as to the transfer application as well as vires of Section 151 of the Act. Subsequently, ECP allowed the transfer application of respondent No.4 on 10.06.2024, which was also challenged by the petitioner and is the subject matter of W.P. No.1984-2024. 3. The petitioner namely Muhammad Shoaib Shaheen (W.P. No.1797-2024) contested General Elections 2024 from NA-47 ICT-II, Islamabad along with respondent No.3 and the latter was declared as a returned candidate. Feeling aggrieved, election petition was filed before Election Tribunal constituted vide Notification dated 17.02.2024 and during the course of proceedings, respondent No.3 filed transfer application under section 151 ibid. Challenge was made to provisions of The Elections (Amendment) Ordinance, 2024; assumption of jurisdiction by ECP regarding
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transfer application on 04.06.2024 and vires of section 151 of the Act. After transfer application was allowed by ECP on 10.06.2024, the same was challenged through W.P. No.1977-2024. 4. Aamer Masood, the petitioner in W.P. No.1798-2024, contested General Elections 2024 from Constituency NA-46, ICT-I, Islamabad but lost to respondent No.3. Election was challenged by way of a petition before Election Tribunal vide notification dated 17.02.2024. During course of proceedings, an application under section 151 of the Act was filed before ECP. The assumption of jurisdiction by ECP vide order dated 04.06.2024 was challenged along with The Elections (Amendment) Ordinance, 2024 by way of W.P. No.1798-2024 and vires of section 151 of the Act. The final order of ECP dated 10.06.2024, allowing transfer application filed by respondent No.3, was challenged through W.P. No.1981-2024. 5. It is pertinent to observe that during the course of proceedings, The Elections (Amendment) Ordinance, 2024 was presented before National Assembly and was passed by the Parliament and assented by the President of Pakistan and duly notified as The Elections (Amendment) Act, 2024 (the Act of 2024). 6. Learned counsel for the petitioners made a categoric statement that they shall not be questioning the provisions of the Act of 2024, however shall confine themselves to the extent of vires of section 151 of the Act of 2024 as well as transfer orders passed by ECP. 7. Barrister Hassan Shoaib, arguing for the petitioner in W.P. No.1797 & 1977-2024 inter alia contended that provisions of Section 151 of the Act, are ultra vires the Constitution. In this behalf, it was contended that plain reading of section 151 shows that power has been granted to ECP for transfer of an election petition from one Tribunal to another. It was contended that on the face of it, the power is absolute and vests with ECP with the only rider that reasons are to be given. It was submitted that this provision in fact does not synchronize with section 140 of the Act. In this behalf, it was submitted that at the time of appointment of an Election Tribunal, consultation with the Chief Justice of respective High Court, is mandatory, meaning thereby that role of the concerned High Court, is essential. It was submitted that said role of the High Court cannot be omitted at the time of transfer. Elaborating his arguments, learned counsel contended that proceedings before Election Tribunal are judicial in nature and since the Tribunal is a court and proceedings are judicial , hence the principal of separation of powers are to be kept in mind to ensure that the Executive does not interfere in the affairs of the judiciary. Learned counsel took the Court through provisions of Article 175 of the Constitution to argue that referred provision of the Constitution provides for establishment of the courts through law. It was submitted that autonomy of the courts cannot be taken lightly and transfer of proceedings, in the referred backdrop, cannot be left solely to the Executive. He submitted that under Article 200, where a Judge of a High Court is to be transferred from one High Court to another, his consent is required along with consent of Chief Justice of concerned High Court and Chief Justice of Pakistan and only then, notification is issued by the President of Pakistan, meaning thereby that the judiciary is independent from clutches of the Executive. It was argued that power of transfer is judicial in nature and ECP, being a regulatory body constituted under the Constitution of Islamic Republic of Pakistan, does not have any judicial functions. It was contended that conferring such judicial functions on ECP through law, is against the spirit of the functions of ECP. Learned counsel took the Court through the provisions of Articles 213 to 216 of the Constitution to submit that functions and powers of ECP do not include any judicial function. Learned counsel argued that since the appointment of Election Tribunal comprising a sitting Judge of the High Court is made only after meaningful consultation with the Chief Justice of respective High Court, absolute power of transfer cannot be conferred on ECP. It was contended that even-otherwise, transfer of cases is not to be taken lightly inasmuch as Chief Justice of a High Court does not have any authority or jurisdiction to transfer a case from one Bench to another and even when the Supreme Court does exercise this power under Article 186A of the Constitution, it is
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not done simply but only sparingly. It was submitted that protection is granted to the Election Tribunals under Article 225 of the Constitution and the matter cannot be left on the whims of ECP. It was submitted that since section 151 of the Act is violative of the basic provisions of Article 175 and Article 4 read with other constitutional provisions, the same is ultra vires the Constitution. In the alternative, it was submitted that if the Court comes to the conclusion that section 151 is not ultra vires the Constitution, then guidelines be provided laying down mechanism for transfer applications before ECP. It is also contended that it is appropriate that for transfer of election petition from one Tribunal to another, the word consultation must be read in section 151 of the Act. It was added that where transfer is being made for administrative exigencies, it is to be concluded that appointed election Tribunal is only to perform its duties or Presiding Officer himself recuses and due to his inability to perform his work. It was also submitted that transfer order has not been passed in accordance with law as well as well established principle of jurisprudence was ignored viz no man can be a judge in his own cause. It was submitted that ECP has been impleaded as a respondent and allegations have been leveled there-against, hence it could not have transferred a petition. It was submitted that allegation of bias was leveled against the current Presiding Officer of Election Tribunal, but nothing was placed on record to substantiate that ECP passed the order without application of mind. It was contended that Presiding Officer was the competent forum for making an application of bias for transfer and only upon recusal, needful was done. Reference was made to cases reported as Liteky Vs. United States [(510 U.S. 540 (1994)], Advance Law Lexicon Dictionary, Oxford English Dictionary, Order dated 29.04.2024 in case titled Bushra Imran Khan Vs. Federation of Pakistan through Secretary, Ministry of Interior and Secretary, Ministry of Defence and others (W.P. No.2758-2023), Gen (R) Parvez Musharraf Vs. Nadeed Ahmed (Advocate) and another (PLD 2014 Supreme Court 585), Muhammad Azam Khan Swati Vs. The State and another (2023 PCr.LJ 350), Muhammad Nawaz Vs. Ghulam Kadir and 3 others (PLD 1973 Supreme Court 327), Crown Vs. Abdul Aziz and S. Israr Hussain (PLD 1952 Sindh 1), Zaibo and others Vs. Habibullah and 2 others (2023 CLC 1531), Mst. Rukhsana Vs. Mian Imtiaz Aleem and 8 others (2013 MLD 739), Gujrat Electrical Board and another Vs. Atmaram Sungomal Poshani (1990 MLD 957), Shehzadi Fatima Ali Vs. Nadia Asghar and 2 others (2020 CLC 1181), Chief Executive Officer Thermal, Power Station Genco and 8 others Vs. Asadullah and 2 others (2023 MLD 888), Ali Ahmed and 2 others Vs. Ghulam Mustafa and others (2022 MLD 908), Muhammad Warial Vs. Government of Sindh through DC and 5 others (2018 MLD 1438), Sain Rakhio Vs. Abdul Ghaffar and 5 others (2011 CLC 1160), Hassan Ali Gondal and others Vs.Messrs Karim Enterprises (2015 YLR 544), Saeeda Begum and 7 others Vs. District Officer (Revenue) Jhelum and 11 others (2009 YLR 950), Muhammad Younis Vs. Muhammad Ayub (2001 MLD 67), Muhammad Saleem Baig, Chairman Pakistan Electronic Media Regulatory Authority (PEMRA), Islamabad Vs. MessrsLabbaik Pvt. Ltd. through Executive Admin Bol TV, Quetta and others (PLD 2023 Supreme Court 27), Altaf Ibraim Qureshi and another Vs. Aam Log Ittehad and others (PLD 2019 Supreme Court 745), Muhammad Hanif Abbasi Vs. Imran Khan Niazi and others (PLD 2018 Supreme Court 189), Ms. Shabina Riaz Khan Vs. Federation of Pakistan and others (2016 CLC 458), United Bank Limited Vs. Federation of Pakistan and others (2018 CLD 587), The Queen Vs. Kirby and others [(1956 94 CLR 254 High Court of Australia)], Mehram Ali and others Vs. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Sami Ullah Baluch and others Vs. Abdul Karim Nousherwani and others (PLD 2018 Supreme Court 405), Muhammad Ijaz Ahmad Chaudhry Vs. Mumtaz Ahmad Tarar and others (2016 SCMR 1), Chief Election Commissioner of Pakistan and others Vs. Miss Nasreen Pervez [(2009 PLC (CS) 650],MessrsRanyal Textiles through Proprietor/Employer Vs. Sindh Labour Court No.3, Karachi and 3 others (PLD 2010 Karachi 27), Sh. Riaz Ul Haq and others Vs. Federation of Pakistan and others (PLD 2013 Supreme Court 501), Imran Vs. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others (PLD 1996 Lahore
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542), Reference No.1 of 2020: In the matter of (PLD 2021 Supreme Court 825), Sardar Bahadur Khan Bangulzai and others Vs. Sardar Attullah Khan Mengal and another (1999 SCMR 1921), Al- Jehad Trust through Raees-ul-Mujahideen Habib Al-Wahabul Khairi, Advocate Supreme Court and another Vs. Federation of Pakistan and others (PLD 1997 Supreme Court 84), Mahmood Khan Achakzai and others Vs. Federation of Pakistan and another (PLD 1997 Supreme Court 426), Shahid Nabi Malik and another Vs. Chief Election Commissioner, Islamabad and 7 others (PLD 1997 Supreme Court 32), Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul- Khairi and others Vs. Federation of Pakistan and others (PLD 1996 Supreme Court 324), Sheikh Abdul Aziz Hamad Al-Gosaibi Vs. Pakistan International Airlines Corporation (PLD 1995 Karachi 566), District Bar Association, Rawalpindi and others Vs. Federation of Pakistan and others (PLD 2015 Supreme Court 401), M.H. Khondkar Vs. The State (PLD 1966 Supreme Court 140), Asif Ali Zardari and another Vs. The State (PLD 2001 Supreme Court 568), Brig. (R) F.B. Ali and another Vs. The State (PLD 1975 Supreme Court 506), Ms. Shabina Riaz Khan Vs. Federation of Pakistan (2016 CLC 458), Naveed Hussain Vs. The State and others (PLD 2020 Lahore 382), Raja Arshad Mehmood Vs. Mst. Maliha Malik and others (2020 SCMR 69), In the matter of Reference No.2 of 2005 by the President of Pakista (PLD 2005 Supreme Court 873) and Mohtarma Benazir Bhutto, Leader of the Opposition, Bilawal House, Clifton, Karachi and another Vs. The State through Chief Ehtesab Commissioner, Islamabad (1999 SCMR 759). 8. Syed Ishfaq Hussain Shah, Advocate, appearing for the petitioner in W.P. No.1796 & 1984-2024, inter alia contended that under Chapter 9 of the Act, disputes arising from elections, can only challenged by way of election petition under section 139 ibid. It was submitted that section 140 outlines the procedures for appointment of Election Tribunal and as for the same, a sitting Judge of the High Court, is to be appointed after consultation with the respective Chief Justice of that court. It was submitted that power to transfer an election petition from one Tribunal to another is provided to the ECP. It was submitted that though it is not exclusively provided in section 151 ibid but whenever transfer is to be made by ECP from one Tribunal to another, it should be read in section 151 that it requires concurrence of the Chief Justice of that High Court. It was submitted that provisions of section 151 be read in a manner that other provisions of the Act do not become redundant. It was submitted that for purposeful interpretation, this Court can read in the words to harmonize the same with other provisions. Reference was made to Muhammad Ayub Vs. Abdul Khaliq (1990 MLD 1293), Lt. Col. Nawabzada Muhammad Amir Khan Vs. The Controller of Estate Duty etc. (PLD 1961 Supreme Court 119), Pakistan Tobacco Company Limited Vs. Pakistan Tobacco Company Employees Union, Dacca etc. (PLD 1961 Supreme Court 403) and Shalimar Recording and Broadcasting Company through Managing Director, Islamabad Vs. The Commissioner Inland Revenue (Appeals), LTU, Islamabad and 2 others (2019 PTD 2082). It was submitted that under the facts and circumstances, no ground for transfer was made out and the impugned order has been passed without lawful authority. It was contended that the allegation of bias has been leveled but no bias, as such, is made out. It was added that no opportunity to file reply was given to the petitioners. 9. Mr. Faisal Fareed Chaudhry, Advocate for the petitioner in W.P. No.1798 & 1981-2024, while adopting submissions made by other two learned counsel for the petitioners inter alia contended that while passing transfer order dated 10.06.2024, ECP has given finding on merit of the matter, which is totally uncalled for and ought to have not been made. It was added that there was no need or necessity for rendering such finding. It was also submitted that allegation leveled in the transfer application are derogatory and scandalous and should be omitted. It was further contended that allegation of nepotism and such like behavior on part of Presiding Officer of Election Tribunal was made, which is neither borne out from the record nor circumstances reflect so.
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10. Mr. Waqas Mir, Advocate Supreme Court, appearing for the private respondents in all the petitions, controverted the stance taken by the petitioners. He submitted that vires of section 151 have been questioned on the touchstone that it violates the provisions of the Constitution. In this behalf, it was submitted that law has exhaustively been dealt with as to declaring the provisions of the statute ultra vires in case reported as Lahore Development Authority Ltd. Vs. Ms. Imrana Tiwana and others (2015 SCMR 1739). It was contended that none of the arguments raised by the petitioners meet the guidelines laid down in the said case. He also made reference to case reported as NS Bindra's Interpretation of Statutes, 12th Edition and Fundamental Law of Pakistan, AK Brohi to submit that principles laid down in the referred piece of work clearly show that the petitioner have failed to meet the criteria for declaring the provision of the statute i.e. section 151 as ultra vires. Learned counsel then took the Court through the scheme of the provisions pertaining to Election Commission of Pakistan in three Constitutions viz the Constitution of the Islamic Republic of Pakistan, 1956,the Constitution of the Islamic Republic of Pakistan, 1962, and the Constitution of the Islamic Republic of Pakistan, 1973, to argue that for a period of time, Election Commission has evolved as a regulator and has certain rights and obligations. It was contended that functions of the ECP, as laid down in the present Constitution, are manifold and inter alia contained in Articles 219 to 222. It was submitted that duties of the Commission include appointing Election Tribunals and also through electoral laws passed by the Parliament to resolve the disputes arising in connection with elections. It was argued, with emphasis, that no law can abridge or take away the powers of ECP under the Constitution (Article 222). It was submitted that Election Tribunal appointed under section 140 of the Act is a persona designata and is not a Judge of the High Court while performing duties as Election Tribunal. Reference was made to cases reported as Pakistan Fisheries Limited, Karachi and others Vs. United Bank Limited (PLD 1993 Supreme Court 109), Messrs Tri-Star Polyester Limited and others Vs. Citi Bank (2001 SCMR 410), State and others Vs. Shereen Shah and others (CP No.388-P of 2016), Brothers Sugar Mills Limited and others Vs. Punjab Cooperative Board for Liquidation and others (2012 CLC 1369) and Gul Taiz Khan Marwat Vs. Registrar and others (PLD 2021 Supreme Court 391). To substantiate his arguments, he also placed reliance on cases reported as M.H. Khondkar Vs. The State (PLD 1996 SC 140), Abdul Haque Vs. The State (PLD 1996 SC 1), Hajj Organizers Association of Pakistan Vs. Federation of Pakistan (PLD 202 Sindh 42), Ms. Shabina Riaz Khan Vs. Federation of Pakistan (2016 CLC 458) and Mir Abdul Baqi Baluch Vs. The Government of Pakistan and others (PLD 1968 SC 313). It was argued that provisions of section 151 are not ultra vires the Constitution, as the power to transfer solely vests with ECP, which is administrative and supervisory in nature. It was contended that law provides that ECP can transfer a case from one Election Tribunal to another after assigning reasons. He submitted that since this power is supervisory in nature and ECP is a regulatory body, hence it falls within its sole domain to transfer a case from one Tribunal to another. It was contended that there is no requirement to read any words in the alternative of the Act inasmuch as it is clear that it is not the mandate of law. Moreover, it was contended that generally Election Tribunal appointed, if comprises of a sitting Judge of a High Court, then same must be appointed with the consultation of the Chief Justice of that High Court and if it is a retired Judge, then there is no need to consult hence law, as it stands today, provides two different regimes and it cannot be read in that it is mandatory for ECP to consult with the Chief Justice at the time of transfer. Reference was made to cases reported as Sharaf Faridi and others Vs. Federation of Islamic Republic of Pakistan and others (PLD 1989 Karachi 404), Government of Sindh and others Vs. Sharaf Faridi and others (PLD 1994 SC 105), Government of Baluchistan Vs. Azizullah Memon and others (PLD 1993 SC 341), Registrar, Supreme Court of Pakistan Vs. Qazi Wali Muhammad (1997 SCMR 141), Mehram Ali and others Vs. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), Imran Versus Presiding Officer, Punjab and others (PLD 1996 Lahore
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542), Sh. Riaz Ul Haq and others Vs. Federation of Pakistan and others (PLD 2013 Supreme Court 501) and Khan Asfandyar Wali and others Vs. Federation of Pakistan and others (PLD 2001 Supreme Court 607). It was contended that, to resolve election disputes and supervise the same, is the bounden duty of ECP under the Constitution and the Act and since it is the sole duty conferred by the Constitution and the Act, hence it is to be exercised by ECP only. Reference was made to cases reported as Election Commission of Pakistan and others Vs. Javaid Hashmi and others (PLD 1989 Supreme Court 396), Workers Party Pakistan and others Vs. Federation of Pakistan and others (PLD 2012 Supreme Court 681), Aftab Shahban Mirani and others Vs. Muhammad Ibrahim and others (PLD 2008 Supreme Court 779), Let. Gen. Salahuddin Tirmizi Vs. Election Commission of Pakistan and others (PLD 2008 Supreme Court 735), Ali Asjad Malhi Vs. Syed Nosheen Iftikhar (PLD 2023 Supreme Court 1), Aurangzeb Khan Vs. Election Commission of Pakistan and others (PLD 2010 SC 34), Ghulam Mustafa Jatoi Vs. Additional Sessions Judge (1994 SCMR 1299), Ayatullah Dr. Imran Liaqat Vs. Election Commission of Pakistan 9PLD 2005 SC 52) and Muhammad Tariq Chaudhry Vs. Masroor Ahsan and others (PLD 1991 Lahore 200). Objecting to the petitions challenging transfer orders, it was contended that orders of ECP cannot be questioned in a writ petition ordinarily and in this behalf, a very high standard is required and only when order impugned is without jurisdiction or patently illegal, a petition under Article 199 of the Constitution is maintainable. Reference was made to cases reported as Tariq Transport Company Vs. Sargodha Bhera Bus Service and others (PLD 1958 Supreme Court 437), Shell Company Vs. Federal Commissioner of Taxation (1931 AC 275), United Engineering Union Vs. Devanayagam [(1967) 2 All ER 367)] and Sh. Riaz Ul Haq and others Vs. Federation of Pakistan and others (PLD 2013 Supreme Court 501). It was contended that transfer orders were passed by ECP only on the ground of bias but due to the fact that the way the proceedings were being conducted. Learned counsel took the Court through the provisions of the Act to show that mandatory procedure, provided in sections 141, 142 and 143 of the Act, was not followed hence respondents were left with no option but to apply for the transfer. It was submitted that where such is the case, keeping in view the nature of the authority, ECP passed the transfer orders. 11. Learned counsel for ECP adopted the submissions made by learned counsel for private respondents, however contended that under section 151 of the Act, ECP does have jurisdiction to pass transfer orders from one Election Tribunal to another, but has to assign reasons. 12. Learned Additional Attorney General defended the vires of section 151 of the Act and contended that there is no need or necessity to read anything in section 151. Reference was made to case reported as Peoples University of Medical and Health Sciences for Women through Registrar and four others Vs. Pakistan Ministry of Health Services, Regulation and Coordination through Secretary and 13 others (PLD 2021 Sindh 256). It was contended that on the said principles, no justification is made out to strike down the law. 13. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance. 14. The legal and factual aspects of the case have already been mentioned in the preceding paragraphs and are also reflected in the arguments of learned counsel for the parties. The primary issues, involved in this case, are transfer orders passed by ECP and the vires of section 151 of the Act, which empowers ECP to transfer any election petition from one Election Tribunal to another. There are certain ancillary issues as well which are connected to the primary issues; the same being, the status of Election Tribunal and maintainability of a petition under Article 199 of the Constitution against decision of ECP. Before dealing with the primary and ancillary issues, it would be appropriate to reproduce relevant provisions of law. Since the transfer order has been passed by ECP under section 151 ibid and the vires thereof are under challenge, hence it is the key provision and is reproduced below:-
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"151. Power to transfer petition- The Commission may at any stage, on its own motion or on an application of a party and for reasons to be recorded, transfer an election petition from one Election Tribunal to another Election Tribunal and the Election Tribunal to which the lection petition is transferred- a) shall proceed with the trial of the election petition from the stage from which it is transferred; and b) may, if it deems fit, recall and examine any witness who has already been examined." The appointment…
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