IN THE SUPREME COURT OF PAKISTAN

(Appellate/Review/Original Jurisdiction)

Present:
Justice Qazi Faez Isa, CJ
Justice Amin-ud-Din Khan
Justice Jamal Khan Mandokhail
Justice Naeem Akhtar Afghan
Justice Aqeel Ahmed Abbasi

Civil Appeal Nos. 842 and 843 of 2024

(On appeal from the judgment dated 29.05.2024 of the
Lahore High Court, Lahore passed in Writ Petitions No.
28985 and 31120 of 2024)
AND
C.M. Application Nos.5387 & 5388/24
[Stay Applications]

Election Commission of Pakistan through (In both cases)

Chief Election Commissioner, Islamabad. … Appellant

Versus
Salman Akram Raja and others.
(In CA. 842/2024)

Rao Omar Hashim Khan and others. … Respondents

(In CA. 843/2024)

AND

Case Under Objection No. 72 of 2024

IN
Constitution Petition NIL/2024

Muhammad Shabbir Awan and others. … Petitioners

Versus
Election Commission of Pakistan through Chief Election
Commissioner, Islamabad and others. … Respondents

AND

Civil Review Petition No. 318 of 2024

[For review of the order dated 04.07.2024 passed by this Court]
IN
Civil Appeal No. 842 of 2024

Salman Akram Raja. … Petitioner

Versus
Election Commission of Pakistan through Chief Election
Commissioner, Islamabad and others. … Respondents

For the Appellant: Mr. Sikandar Bashir Mohmand, ASC.

(In CAs. 842 & 843/24) Assisted by
Abdullah Noor, Hamza Azmat, Khizar Hayat
and Imran Khan, Advocates.
Civil Appeal No. 842 of 2024 etc. 2

Mr. Muhammad Arshad,

Special Secretary, ECP.
Mr. Khurram Shahzad, Addl. DG.
Mr. Falak Sher, A.D.

For the Petitioners: Mr. Sameer Khosa, ASC.

(In CUO.72/24)

For the Petitioner: Mr. Salman Akram Raja, In-person.

(In CRP. 318/24)

In CA. 842/24:
Respondent No. 1: Mr. Salman Akram Raja, In-person.

Respondents No. 4: Mr. Shoukat Mahmood, In-person.

For Respondent No. 5: Mr. Anwar Mansoor Khan, Sr. ASC.

For Respondent No. 6: Nemo.

For Respondent No. 7: Mr. Salman Akram Raja, ASC.

For Respondent No. 9: Mr. Uzair Karamat Bhandari, ASC.

Assisted by Momal Malik, Advocate

For Respondent No. 12: Mr. Abid S. Zuberi, ASC.

Assisted by Hira Fatima and Arif Ansari, Adv.

In CA. 843/24:
For Respondent No. 1: Mr. Sameer Khosa, ASC.

For the Federation: Mr. Mansoor Usman Awan,

Attorney-General for Pakistan.
Ch. Aamir Rehman,
Additional Attorney-General for Pakistan.

Date of Hearing: 24.09.2024.

JUDGMENT

Qazi Faez Isa, CJ.

1. Mr. Salman Akram Raja who represented himself and was also an
advocate for another respondent submitted when these cases came up for
hearing before a two-member Bench that since they required the
interpretation of the Constitution of the Islamic Republic of Pakistan (‘the
Constitution’), therefore, they be placed before the Committee constituted
under section 2 of the Supreme Court (Practice and Procedure) Act, 2023
for the constitution of a larger Bench under its section 4. Therefore, the
matter was placed before the Committee which constituted this five-
Civil Appeal No. 842 of 2024 etc. 3

member Bench to hear these appeals. Notice under Order XXVII-A of the
Code of Civil Procedure, 1908 was also issued to the Attorney-General for
Pakistan.

2. Learned Mr. Sikandar Bashir Mohmand represents the Election

Commission of Pakistan (‘the ECP’), the appellant, and the appeals assail a
common judgment dated 29 May 2024 of the Lahore High Court passed in
two writ petitions filed by two individuals who respectively are respondent
No. 1 in each appeal. The writ petitions had challenged the authority of the
ECP to appoint Election Tribunals and contended that the Chief Justice of
the Lahore High Court has primacy in the consultation process. The
learned single Judge interpreted the Constitution and the Elections Act,
2017 (‘the Elections Act’) with reference to the decisions in the cases of Al-
Jehad Trust v Federation of Pakistan (PLD 1996 Supreme Court 324) and
Riaz-ul-Haq v Federation of Pakistan (PLD 2013 Supreme Court 501) and
held that the Election Tribunals are to be appointed on the
recommendation of the Chief Justice of the Lahore High Court.

3. The learned Mr. Sikandar Bashir Mohmand had submitted that the
impugned judgment does not accord with Articles 219(c), 222(d) and its
proviso, 225 of the Constitution and sections 140(1) and (3) and 151 of the
Elections Act. The referred provisions are reproduced hereunder:

Constitution:

‘219. The Commission shall be charged with the duty of’

‘(c) appointing Election Tribunals;’

‘222. Subject to the Constitution, Majlis-e-Shoora

(Parliament) may by law provide for’

‘(d) the conduct of elections and election petitions

the decision of doubts and disputes arising in
connection with elections;’

‘but no such law shall have the effect of taking away or

abridging any of the powers of the Commissioner or
the Election Commission under this Part.’

‘225. No election to a House or a Provincial Assembly shall

be called in question except by an election petition presented
to such tribunal and in such manner as may be determined
by Act of Majlis-e-Shoora (Parliament).’
Civil Appeal No. 842 of 2024 etc. 4

Elections Act:

‘140. Appointment of Election Tribunals. (1) For the trial of

election petitions under this Act, the Commission shall
appoint as many Election Tribunals as may be necessary for
swift disposal of election petitions.

(2) An Election Tribunal shall comprise

(a) in the case of an election to an Assembly or the

Senate, a person who is a Judge of a High Court;
and

(b) in the case of an election to a local government,

a District and Sessions Judge or an Additional
District and Sessions Judge.

(3) The Commission shall appoint a sitting judge as

Election Tribunal in consultation with the Chief Justice of
the High Court concerned.’

‘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 election 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.’

4. The ECP by relying upon the aforesaid provisions grants to the ECP
power to appoint Election Tribunals contended the learned counsel
representing ECP. The learned counsel submitted that since the said
provisions are abundantly clear they did not require any interpretation and
the interpretation of the learned Judge of the High Court is, with respect,
incorrect. He further submitted that the judgments relied upon by the
learned Judge respectively were in respect of the appointment of Judges
(prior to the amendment to the Constitution) and with regard to the
appointment of chairpersons and members of administrative tribunals, and
neither was applicable to the appointment of the Elections Tribunals. He
further contended that writ petitions were not maintainable for the reason
that a writ petition does not lie in respect of an administrative order of the
Chief Justice; that the matter was between a constitutional body, the ECP,
Civil Appeal No. 842 of 2024 etc. 5

and a constitutional office holder, the Chief Justice, with regard to which
the petitioners before the High Court had no concern and that neither of
them were aggrieved person or aggrieved party under Article 199 of the
Constitution.

5. Mr. Salman Akram Raja who was one of the petitioners before the
High Court, stated that he is also the Advocate of another respondent in the
appeals. He stated that the writ petitions filed in the High Court were
maintainable because only two Election Tribunals were constituted, which
were insufficient for the province of Punjab, and that the ECP had not
complied with its constitutional and legal duty. He further stated that
though the ECP is a constitutional body it is not judicially empowered to
appoint Election Tribunals and that judicial power exclusively vests in the
High Court. And, that meaningful consultation with the Chief Justice of the
Lahore High Court was required for appointment of Election Tribunals but
since this was not done by the ECP, therefore, the Election Tribunals could
not be constituted by the ECP. He concluded by stating that the petitioners
before the High Court had contested elections and wanted their election
petitions promptly decided, which brought them within the ambit of
aggrieved persons.

6. We were informed that no disagreement occurred nor problem was

encountered with regard to the appointment of the Election Tribunals in other
provinces, and the ECP pursuant to this Court’s direction had filed documents
in this regard. However, the present dispute is only with regard to the Punjab,
therefore, we need not concern ourselves with the appointments made in the
other areas of Pakistan. It transpired that the ECP had written letters dated 14
February 2024 to the Registrars of all the High Courts, seeking names of the
Judges for appointment as Election Tribunals. The Registrar of the Lahore High
Court (hereinafter ‘the Registrar’) responded vide letter dated 20 February
2024 and provided the names of two Hon’ble Judges of the Lahore High Court,
in respect of whom requisite Notification was issued by the ECP on the same
day (20 February 2024), and subsequently the ECP also notified their respective
territorial jurisdictions. The Registrar had not specified the territorial
jurisdiction of these two Hon’ble Judges. The Registrar after forty-five days
wrote another letter dated 4 April 2024 to the ECP through which another six
Hon’ble Judges were nominated as Election Tribunals, however, this time their
respective territorial jurisdictions were also stated; three for Lahore and one
Civil Appeal No. 842 of 2024 etc. 6

each for Bahawalpur, Multan and Rawalpindi. The ECP, however, issued
Notification dated 26 April 2024 and nominated only two of the Hon’ble
Judges whose names were sent by the Registrar and also mentioned their
respective territorial jurisdictions. On the same day (26 April 2024) the ECP
wrote to the Registrar stating that, ‘…humbly requested to provide the panel
of Hon’ble sitting judges to the Election Commission of Pakistan for their
appointment as Election Tribunal for the trial and disposal of Election
Petitions pertaining to National/Provincial Assembly Constituencies of the
Rawalpindi and Bahawalpur Divisions’.

7. The Registrar through an undated letter, bearing No. 06/RHC,

objected to the ECP unilaterally deciding to accept only certain Judges and
that it had also specified their respective territorial jurisdictions. The ECP
responded vide letter dated 6 May 2024 and followed it by issuing
Notification dated 9 May 2024. The Registrar responded vide letter dated 10
May 2024 to which the ECP sent reply dated 16 May 2024.

8. In view of the fact that there were insufficient Election Tribunals and
as election petitions are to be expeditiously decided two contesting
candidates had invoked the constitutional jurisdiction of the Lahore High
Court, Lahore by filing the said writ petitions, which were decided through
the impugned judgment dated 29 May 2024. Pursuant to the impugned
judgment the Lahore High Court, Lahore itself issued ‘Notification’ No.
17/RHC dated 12 June 2024.

9. On 4 July 2024 we had enquired from the learned Advocate of the

ECP whether the ECP or its Chief Election Commissioner had met with the
Chief Justice of the Lahore High Court and whether there had been a
meaningful consultation between them. He stated that no meeting had
taken place and consultation was through the referred correspondence. He,
however, referred to letter dated 27 June 2024 of the ECP written to the
Registrar, which is reproduced hereunder:

‘Subject: Appointment of Election Tribunal(s) for

General Elections-2024 under Article 225
of the Constitution read with section 140
of the Elections Act, 2017.
Dear Sir,
In continuation of this Commission’s letter of
even number dated 16th May, 2024, on the captioned
Subject. I am directed to convey that on behalf of
Civil Appeal No. 842 of 2024 etc. 7

Election Commission of Pakistan, Chief Election

Commissioner of Pakistan intends to meet Hon’ble
Chief Justice of Lahore High Court, Lahore on the
issue of appointment of Election Tribunals.

2. An early response in this regard shall be

appreciated.’

10. The ECP is a constitutional body and the Hon’ble Chief Justice is a
constitutional office holder. Both are deserving of the highest respect.
Therefore, we had expressed our confidence that if there had been a face to
face meeting and a meaningful consultation ensued the matter could have
been amicably resolved. The learned Attorney-General for Pakistan agreed
and stated that consultation should be meaningful. Therefore, without
adverting to the merits of the case we had directed the ECP/Chief Election
Commissioner to meet with the Hon’ble Chief Justice of the Lahore High
Court, in an atmosphere of meaningful consultation with regard to the
subject matter. And, with a view to enable this the ECP’s letter dated 26
April 2024, ECP’s notification dated 26 April 2024, the Registrar’s undated
letter No. 06/RHC, the impugned judgment dated 29 May 2024 and the
Lahore High Court’s Notification dated 12 June 2014 were suspended. It
was further observed that the said meeting should be held in the office of
Chief Justice of the Lahore High Court in deference to such office.

11. The learned counsel representing the ECP states that the said
meeting and meaningful consultation took place with the Hon’ble Chief
Justice of the Lahore High Court and a consensus emerged. We have also
received ‘Report’ dated 18 July 2024 (which has been numbered as CMA
No. 8039/2024) from the Registrar which confirms that the matter was
amicably resolved between the Hon’ble Chief Justice of the Lahore High
Court and the ECP. And, we are informed that sufficient number of Election
Tribunals will be appointed/constituted immediately.

12. Since the matter has been amicably resolved there is no need to
decide these cases. We want to record our appreciation that the Hon’ble
Chief Justice of the Lahore High Court, who holds an important
constitutional office, and the ECP, which is a constitutional body, have
amicably settled the matter. Undoubtedly, they realized their respective
constitutional and legal responsibilities and rose to the occasion to do the
needful.
Civil Appeal No. 842 of 2024 etc. 8

13. If the learned Judge whose judgment is impugned herein had realized
that a face-to-face meeting had not taken place by the ECP/Chief Election
Commissioner with the Hon’ble Chief Justice we are sure he would not
have passed the impugned judgment. Moreover, whenever a party to a
dispute/disagreement is a constitutional body or constitutional office
holder a cautious approach should be adopted and it must be ensured that
adjudication is resorted to as a last resort and when necessitated. The
people, who we all eventually serve, expect nothing less. Therefore, since
the matter has been amicably resolved to the satisfaction of the Hon’ble
Chief Justice of the Lahore High Court and the ECP adjudication was not
called for, resultantly, the impugned judgment is set aside and also the
notification dated 12 June 2024 issued pursuant thereto. Moreover, though
we do not expect, however, since such a dispute may one day have to be
adjudicated upon we hold that anything stated in the impugned judgment
should not be referred to before any court.

14. Resultantly, these appeals are allowed in the aforesaid terms and the
listed applications, the Civil Review Petition and the Case Under Objection
are disposed of.
Chief Justice

Judge

Judge

I concur with the findings, however, I have appended my additional note.

Judge

Note: I concur with the disposal of these Civil Appeals in the above terms in
view of settlement reached between the parties pursuant to Report dt.
18.7.2024 (CMA No. 8039/2024) however fully endorse the opinion and
reasoning of J. Jamal Khan Mandokhail, whereas, setting aside the
judgment of Lahore High Court will not render the same as illegal in view of
the fact that no finding has been rendered as to merits of the case.

Judge
Islamabad:
(M. Tauseef)

Announced in open Court on 30 September 2024 at Islamabad.

Chief Justice
Approved for reporting
 Civil Appeals No. 842 & 843 of 2024

Election Commission of Pakistan

v.
Rao Omar Hashim Khan & others AND
Salman Akram Raja & others

I have had the privilege of going through the judgment authored by the
Hon’ble Chief Justice. I concur with the findings rendered and conclusion
drawn therein. However, I feel it appropriate to append my own opinion and
reasoning to the points in issue involved in these appeals.

Power to Appoint Election Tribunal:

2. The Election Commission of Pakistan (‘Commission’) is constituted

under Article 213 of the Constitution of the Islamic Republic of Pakistan,
1973 (‘Constitution’) and under sub-paragraph of the said Article, the
Commission shall have such powers and functions as are conferred on it
by the Constitution and law. Under Article 218(3) of the Constitution, it
is the duty of the Commission to organize and conduct the election and
to make arrangements as necessary to ensure that the election is
conducted honestly, justly, fairly and in accordance with law and that
corrupt practices are guarded against. According to Article 219 of the
Constitution, the Commission is exclusively charged with a duty to
appoint as many Election Tribunals (‘Tribunal’) as may be necessary for
swift disposal of elections petitions.

Procedure for Appointment:

3. The Constitution does not provide the procedure, qualification and

manner of appointment of Tribunal, however, Article 213(3) of the
Constitution provides that the Commission shall have powers and
functions as are conferred on it by the Constitution and law. To regulate
the power and function of the Commission with regard to appointment of
Tribunal, procedure has been provided by section 140 of the Elections
Act, 2017 (‘the Act’), which is reproduced herein below:
 2

140. Appointment of Election Tribunals. (1) For the trial of

election petitions under this Act, the Commission shall appoint
as many Election Tribunals as may be necessary for swift
disposal of election petitions.
(2) An Election Tribunal shall comprise----
(a) in the case of an election to an Assembly or the
Senate, a person who is a Judge of a High Court;
and
(b) in the case of an election to a local government,
a District and Sessions Judge or an Additional
District and Sessions Judge.
(3) The Commission shall appoint a sitting Judge as Election
Tribunal in consultation with the Chief Justice of the High
Court concerned.

4. No doubt, the power to appoint Tribunals rests only with the

Commission, but in order to ensure free and fair election, an
independent machinery is necessary. In such view of the matter, the
power to adjudicate such delicate task, has been assigned to the
judiciary. Therefore, in case of appointing a sitting Judge of a High
Court, consultation with the Chief Justice of the High Court concerned
by the Commission is a condition precedent. The purpose of consultation
is because of the realization that the Chief Justice is not only the
administrative head of the High Court but also is in best position to
know and assess the suitability and availability of the Judges. As several
Judges are performing their functions in different Benches, therefore,
while nominating Judges, it will be convenient for the Chief Justice to
consider availability of Judges at relevant Benches. In this way, the
determination of territorial jurisdiction can also be resolved suitably.
Once the Chief Justice nominates Judges for the purpose of appointment
as Tribunals, the Commission is bound to accept the names and notify
them accordingly, unless, there are cogent reasons, which must be
communicated to the Chief Justice. If the Chief Justice is satisfied with
the reasons advanced by the Commission, he may substitute a Judge
accordingly.

Panel of Judges:

5. The Constitution and section 140 of the Act do not provide for any
provision, enabling the Commission to request for a panel of Judges for
the purpose of appointment as Tribunals. The intention of the Legislature
is evident of the fact that they did not assign power to the Commission to
 3

ask for a panel of Judges and pick and choose a Judge of its own choice
amongst them. The Commission must have a faith in every Judge and
can only ask a Judge against each Tribunal. The primacy, therefore, lies
in the final opinion of the Chief Justice.

6. Even otherwise, the Commission is a constitutional body and the

Chief Justice and Judges are holding constitutional posts. It is expected
that members of both the institutions must respect each other and in
case of any issue, they are supposed to have a meaningful consultation
as has been provided by the Act. In the case in hand, earlier there was
no meeting between the two institutions, therefore, there was no proper
consultation, which has resulted into litigation. During the pendency of
these appeals, when the Hon’ble Chief Justice and the Commission
decided to have a meaningful consultation, the result is before us that
consensus has developed between them. I hope that now the
Commission will take all necessary steps immediately, enabling the
Tribunals to start functioning and to conclude the proceedings upon the
petitions within the stipulated period of time, accordingly.

(Jamal Khan Mandokhail

Judge

Islamabad
[Link] and Waqas Ahmad, LC
APPROVED FOR REPORTING