P L D 2025 Supreme Court 67

Present: Qazi Faez Isa, CJ, Syed Mansoor Ali Shah, Munib Akhtar, Yahya Afridi, Amin-ud-
Din Khan, Jamal Khan Mandokhail, Muhammad Ali Mazhar Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed, Irfan Saadat Khan and Naeem Akhtar
Afghan, JJ

Civil Appeals Nos. 333 and 334 of 2024

AND

Civil Misc. Application No.2920 of 2024

[Stay application]

AND

Civil Misc. Application No. 5913 of 2024

[Application of PTI for impleadment]

SUNNI ITTEHAD COUNCIL and another---Appellants

Versus

ELECTION COMMISSION OF PAKISTAN and others---Respondents

Civil Petitions No. 1612 to 1617 of 2024

AND

C.M.A. No.3554 of 2024 in C.P. NIL/2024

[For permission to file and argue]

The SPEAKER, PROVINCIAL ASSEMBLY OF KHYBER PAKHTUNKHWA, PESHAWAR and

others---Petitioners/Applicants

Versus

SHAZIA TEHMAS KHAN and others---Respondents

Civil Appeals Nos. 333 and 334 of 2024 and Civil Miscellaneous Applications Nos. 2920, 5913
of 2024 and Civil Petitions Nos. 1612 to 1617 of 2024 and C.M.A. No. 3554 of 2024 in C.P.
No. Nil of 2024, decided on 12th July, 2024.

Per Amin-ud-Din Khan and Naeem Akhtar Afghan, JJ. [Minority view]:

(a) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e), 106(3)(c) & 63---Elections Act (XXXIII of 2017), Ss. 66, 104 &
215(5)---Seats reserved for women and non-Muslims in the National Assembly and the
Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf
("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan
for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a
political party] which was joined by 80 independent returned candidates, who were backed
by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf
("PTI") was eligible for the allocation of reserved seats---Reasons for disagreeing with the
majority decision in the present case listed.

i. Pakistan Tehreek-e-Insaf ("PTI") was not before the Supreme Court nor before the High
Court nor even before the ECP;

ii. The joining of 80 independent returned candidates with Sunni Ittehad Council ("SIC")
was never disputed by anyone;

iii. The said 39 plus 41 persons as mentioned in the majority's short order did not come
before the Supreme Court nor were they heard. The majority short order decided about
their rights or lack thereof without their consent or even hearing them. Their joining of SIC
has been undone without such prayer raised by anyone before the Supreme Court, or before
the High Court;

iv. Not only the appeals filed by the SIC have been dismissed by the majority order, as no
relief has been granted to SIC but independent members who joined the SIC have also been
snatched from the SIC and that too without hearing the above said 39 plus 41 persons;

v. Unless Articles 51, 106 and 63 of Constitution are suspended and in their place new
articles in consonance with the relief granted through the majority order are inserted in the
Constitution, the relief which has been granted to the PTI cannot be granted;

vi. Article 175 of the Constitution has been ignored;

vii. The constitutional limits of jurisdiction under Article 185 of the Constitution have been
ignored;

viii. All substantive as well as procedural law with regard to parties to lis have been ignored;

ix. The relief granted to PTI is self-created and has been carved out by the majority,
without anyone claiming this relief in these proceedings;

x. Not only SIC has been denied relief claimed by it but all those who have joined it have
been taken off and for the rest of the tenure of the National as well as Provincial assemblies.
Thus, SIC has been kicked out from the assemblies;

xi. For a specific date i.e. 06.05.2024 the notification of returned candidates for special
seats has been quashed, however before that date their notification and acts are held to be
valid. It is incomprehensible how can this be done, as it is without any backing of
Constitution;
xii. The majority short judgment virtually declares that said 80 persons are not honest and
ameen in accordance with Article 62(1)(f) of the Constitution;

xiii. All the returned candidates for the reserved seats of other parties who have been
notified were not issued notices and provided an opportunity of hearing;

xiv. Forty-one (41) candidates mentioned in Annexure-B (of the majority short judgment)
have been given the choice of joining any other Political Party;

xv. The issue was simply the matter of post general elections directly related to the
reserved seats for both women and non-Muslims on the basis of proportional
representation system of political parties' lists of candidates under Articles 51 and 106 of the
Constitution. The majority's short order in effect created a new parliamentary party in the
National Assembly and three Provincial Assemblies and since this related to the pre-election
process, it is clearly and unequivocally not an issue before the Supreme Court. In the process
of the general elections all events are scheduled and timebound and the same cannot be
reversed;

xvi. The judgment of the full Bench of the Peshawar High Court has been set aside by the
majority's short order to the extent, that it is or may be inconsistent with the majority's
short order. This is incomprehensible as none of the rights which have now been created in
favour of PTI by the majority's short order were in issue before the High Court,

nor had been adjudicated upon. The High Court had simply dismissed SIC's claim to the
reserved seats, which was the lis before the High Court.

If an independent candidate joins a party, though it may be listed as a political party with
ECP, it does not make that party entitled for the reserved seats. The joining of independent
candidates only enhances the proportion of right in the reserved seats of that party if that
party has won seats. Joining of independent candidates with any political party does not
create a right in favour of that political party to become eligible for reserved seats only on
the basis of the joining of independent candidates.

The majority judgment ignores all rules of procedure, substantive provisions of law and
the Constitution. Relief cannot be granted to the PTI as PTI was not before the Court nor
tried to become a party before the ECP, High Court and before the Supreme Court nor was
claiming the reserved seats, which were in issue in the instant litigation. If the said 39 plus
41 persons take any step on the basis of majority's short judgment, which is not in
accordance with the Constitution, they may lose their seats as returned candidates on the
basis of violation of the Constitution. Any other constitutional body cannot be asked to take
any steps or decisions which are not permissible under the Constitution. If the said 80
persons change their stance on the basis of the majority short judgment, they will be guilty
of violating their oath for the members of the National Assembly.
 For creating and carving out relief in these proceedings for PTI, the Court would have to
travel beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and
would also have to suspend Articles 51, 106 and 63 of the Constitution and section 104 of
the Elections Act, 2017 along with the relevant rules. All the rules of procedures of
proceedings before the Supreme Court and the Supreme Court Rules, 1980 would also have
to be ignored as no party before the Court asked in writing or orally for the relief which has
been granted to PTI. Therefore, any affidavit contrary to the provisions of the affidavits
already filed will entail the penal consequences of non-seating such members of National
Assembly and Provincial Assemblies if he/she files a fresh affidavit in contradiction to his/her
previous affidavit and joins any other party. Any order of the Court which is not in
consonance with the constitutional provisions is not binding upon any other constitutional
organ of the State.

In conclusion, it is clear that the superstructure created by

the majority's short order, does not in any way come within the ambit of the jurisdiction
vested in the Supreme Court or in the Constitution.

Per Syed Mansoor Ali Shah, J; Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ. agreeing; Qazi
Faez Isa, CJ., Yahya Afridi, Amin-ud-Din Khan, Jamal Khan Mandokhail and Naeem Akhtar
Afghan, JJ. dissenting. [Majority view]

(b) Constitution of Pakistan---

----Arts. 218 & 187(1)---Election Commission of Pakistan, duty of---Scope---Electoral justice

and integrity---Power of the Supreme Court to do complete justice for protection of
democracy---Election authorities, as "electoral management bodies", are the "guarantor
institutions" of democratic processes and are critical to democratic governance, akin to a
"fourth branch of government"---Their constitutional role is to ensure the conduct of
elections by providing an equal and fair competitive field for all political entities and protect
citizens' rights to vote---As an impartial steward of the electoral process, the Election
Commission of Pakistan is not only an administrative body but also a guardian of electoral
integrity and democracy's legitimacy---When election authorities engage in actions that
undermine these principles, such as unlawfully denying the recognition of a major political
party and treating its nominated candidates as independents, they not only compromise the
rights of these candidates but also significantly infringe upon the rights of the electorate and
corrode their own institutional legitimacy---When the Election Commission errs or makes
significant mistakes impacting the electoral process, judicial intervention becomes necessary
to rectify them and ensure electoral justice---Electoral justice is vital to protecting political
and electoral rights and is intertwined with electoral integrity---Role of the Supreme Court of
Pakistan in overseeing electoral integrity is crucial for sustaining public trust in the
democratic process, and the Court's power to do "complete justice" is a critical tool in the
constitutional arsenal of the Supreme Court, enabling it to prevent democratic backsliding,
and protect democracy effectively with a focus on the electorate's rights---Denying electoral
justice and compromising electoral integrity would undermine the very legitimacy of
democracy.

Tom Ginsburg, 'Democracy Backsliding and the Rule of Law' 44 Ohio University Law
Review 351 (2018) ref.

(c) Constitution of Pakistan---

----Art. 185---Appellate jurisdiction of the Supreme Court---Election dispute---Judicial inquiry

not limited to pleadings of the parties---A case before the Supreme Court involving an
election dispute cannot be treated as an ordinary civil case and the judicial inquiry into such
a case cannot be limited to the pleadings of the parties.

Elections are a crucial part of the democratic process, and the public has a major stake in
ensuring that they are held free and fair, unmarred by corrupt or illegal practices. Therefore,
unlike ordinary civil cases, election cases involve substantial public interest. An election
dispute is fundamentally different from other civil disputes, as it is not solely a dispute
between two contesting parties but a proceeding where the constituency itself is the
principal interested party. These cases involve not just the rights of the contesting
candidates or political parties but also the rights of the voters, constituencies and the public.
Election cases aim to fill public offices by properly qualified and duly elected candidates and
to maintain the purity of elections, ensuring that no one takes charge of a public office
through flagrant breaches of election laws or corrupt practices. The proceedings in election
cases thus have unique characteristics because they serve the interests of the entire
constituency, differentiating them from ordinary civil proceedings. This distinction clearly
demonstrates the flaw in treating an election case as an ordinary civil case and limiting the
judicial inquiry to the pleadings of the parties as it is in adversarial proceedings.

Morton v. Galway [1875] 3 O.M. & H. 19; Aldridge v. Hurst [1876] L.R. 1 C.P. 410;
Sreenivasan v. Election Tribunal [1955] 11 E.L.R. 278; Inamati Basappa v. Desai Ayyappa AIR
1958 SC 698; Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851; Dilshad Khan
v. Arshad Ali 1999 MLD 2874 and Irshad Hussain v. Ashraf Nagra 2003 YLR 812 ref.

In adjudicating election controversies, courts must therefore play an active role in an

inquisitorial manner, defending the rights of the constituency and the values and principles
of democracy. They must act as guardians of the fundamental rights of the people against
any misuse of power or illegal action in the electoral process.

(d) Constitution of Pakistan---

----Part II, Chap. 1---Fundamental Rights---Progressive, and dynamic interpretation---

Fundamental rights guaranteed by the Constitution, an organic instrument, are not capable
of precise or permanent definition delineating their meaning and scope for all times to
come---With the passage of time, changes occur in the political, social and economic
conditions of the society, which requires re-evaluation of their meaning and scope in
consonance with the changed conditions---Therefore, keeping in view the prevailing
socioeconomic and politico-cultural values and ideals of the society, the courts construe the
fundamental rights guaranteed by the Constitution with a progressive, liberal and dynamic
approach---This approach ensures that the fundamental rights remain a vibrant and effective
guarantee of citizens' rights, liberties and freedoms, adapting to the evolving needs and
aspirations of society---With this approach, the courts expound the fundamental rights to
give them life and substance that are true to the reality of the changing times.

Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(e) Interpretation of statutes---

----Provision entailing penal consequences---Strict construction---It is a cardinal principle of

the construction of statutes that any provision entailing penal consequence, whether of
criminal law or of civil law, must be construed strictly---This principle of strict construction
of penal statutes is also called the principle against doubtful penalisation---It stresses that a
person should not be penalised except under clear law and if, in construing the relevant
provisions, there appears any reasonable doubt or ambiguity, it should be resolved in favour
of the person who would be liable to the penalty---No penalty or penal consequence can be
added to the one specified in law by inference or assumption---Penal actions can only be
taken on the basis of express and clear provisions of law.

Muhammad Ali v. State Bank of Pakistan 1973 SCMR 140; F. B. Ali v. State PLD 1975 SC
506; M.B. Abbasi v. State 2009 SCMR 808; Zahid Rehman v. State PLD 2015 SC 77; Tahir
Naqash v. State PLD 2022 SC 385; PIA Corporation v. Labour Court PLD 1978 SC 239; Federal
Land Commission v. Ghulam Qadir 1983 SCMR 867; Siddique Khan v. Abdul Shakur PLD 1984
SC 289; UBL v. Yousuf Dhadhi 1988 SCMR 82; Wukala Mahaz v. Federation of Pakistan PLD
1998 SC 1263; B.I.S.E. v. Rizwan Rashid 2005 SCMR 728; Tahir Hussain v. Liaqat Ali 2014
SCMR 637; State Bank of Pakistan v. S.E.C.P. PLD 2018 SC 52; Maxwell on the Interpretation
of Statutes (12th ed.) pp. 238-240 and Bennion on Statutory Interpretation (7th ed.) pp. 715-
717 ref.

(f) Elections Act (XXXIII of 2017)---

----Ss. 215(5), 209 & 210---Constitution of Pakistan, Art. 17(2)---Political party---Failure to

conduct intra-party elections---Non-allocation of election symbol---No further penalty
beyond the specified non-allocation of an election symbol---It is unequivocal that Section
215(5) of the Elections Act, 2017 prescribes a penal consequence for a political party's
failure to comply with the provisions of Section 209 (regarding intra-party elections) or
Section 210 (regarding the sources of the party's funds)---The specified penalty of non-
allocation of an election symbol curtails the political party's fundamental right to function
and operate as a political party-a right implicit in the right to form a political party
guaranteed by Article 17(2) of the Constitution---Therefore, Section 215(5) must be
construed strictly -- No further penalty or consequence beyond the specified non-allocation
of an election symbol can be inferred or assumed from Section 215(5)---Additionally, no
other constitutional or statutory right of the political party can be denied on the basis of the
non-allocation of an election symbol under this provision.

(g) Election Rules, 2017---

----R. 94, Explanation---Elections Act (XXXIII of 2017), S. 215(5)---Constitution of Pakistan,

Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Explanation to Rule 94 of the Election Rules, 2017, vires
of---Seats reserved for women and non-Muslims in the National Assembly and the Provincial
Assemblies, allocation of---Eligible political parties---Explanation to Rule 94 of the Election
Rules, 2017 being beyond the scope of Section 215(5) of the Elections Act, 2017 and
inconsistent with the provisions of Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the
Constitution, was ultra vires the Elections Act, 2017 and the Constitution, thus void and
invalid.

Rule 94 of the Election Rules, 2017 provides the procedure for the calculation, allocation
and notification of the share of proportional representation of political parties in the seats
reserved for women and non-Muslims. Its Explanation stipulates that '[f]or the purpose of
this rule, the expression "political party" means a political party to which a symbol has been
allocated by the Commission.' By defining a political party in this manner, the Explanation
excludes a political party that has not been allotted a symbol by the Commission from being
allocated a share of proportional representation in the reserved seats. No such exclusion of a
political party, as created by the Explanation to Rule 94, is provided in Articles 51(6)(d), 51(6)
(e) and 106(3)(c) of the Constitution, nor is any such consequence of non-allocation of the
election symbol provided in Section 215(5) of the Elections Act, 2017 or any other provision
of the said Act. In effect, it has introduced an additional penal consequence of declaring a
political party ineligible to obtain an election symbol under Section 215(5) of the Elections
Act, 2017 and it has also infringed the constitutional right of a political party, conferred by
Articles 51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, to have its due share of
proportional representation in the seats reserved for women and non-Muslims on the basis
of general seats secured by such a political party. This Explanation has thus clearly gone
beyond and against the provisions of the Elections Act, 2017 and the Constitution.

The Explanation to Rule 94 of the Election Rules, 2017 being beyond the scope of
Section 215(5) of the Elections Act, 2017 and inconsistent with the provisions of Articles
51(6)(d), 51(6)(e) and 106(3)(c) of the Constitution, is declared ultra vires the Elections Act,
2017 and the Constitution, thus void and invalid.

(h) Elections Act (XXXIII of 2017)---

----Ss. 215(5), 98 & 67(3)---Constitution of Pakistan, Art. 17(2)---Whether a candidate

nominated by a political party ineligible to obtain an election symbol be mentioned as an
independent candidate in the list of contesting candidates (Form-33), and can such a
returned candidate be notified as an independent returned candidate in the Section 98
Notification?---Right to participate in and contest elections as a political party through its
nominated candidates is a fundamental right guaranteed by Article 17(2) of the
Constitution---This right is not, nor can it be, extinguished by any provision of the Elections
Act, 2017 including Section 215(5) thereof---Depriving a political party of participating in and
contesting elections through its nominated candidates, destroys the political existence of the
party and is tantamount to its political extermination and virtual dissolution, which cannot
be done except by the procedure and on the grounds provided in Article 17(2) of the
Constitution---Similar would be the position if the candidates nominated by a political party
are denied the status of being the candidates of that political party and are mentioned as
independent candidates in the list of contesting candidates (Form-33), or such returned
candidates are notified as independent returned candidates in the Notification under section
98 of the Elections Act, 2017---Such actions of the Returning Officers and the Election
Commission of Pakistan would also be ultra vires Article 17(2) of the Constitution, as they
effectively nullify the party's right to participate in and contest elections---Notwithstanding
that a political party has been declared ineligible to obtain an election symbol, its nominated
candidates cannot be mentioned as independent candidates in the list of contesting
candidates (Form 33), despite allotment of different election symbols to them under Section
67(3) of the Elections Act, 2017 nor can they be notified as independent returned candidates
in the Section-98 Notification.

Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation
of Pakistan PLD 1989 SC 66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 ref.

(i) Constitution of Pakistan---

----Arts. 51(6)(d) & 51(6)(e) & 106(3)(c)---Seats reserved for women and non-Muslims in the
National Assembly and the Provincial Assemblies, allocation of---Eligible political parties---
Parties that contest and win general seats---Article 51(6)(d) of the Constitution refers to
political parties that have contested for and won one or more general seats in the National
Assembly from the Province concerned, and not to all enlisted political parties---Similarly,
Article 51(6)(e) of the Constitution refers to political parties that have contested for and won
one or more general seats in the National Assembly from the whole country, i.e., from any of
the Provinces or the Federal Capital---Therefore, Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution refer to political parties that have contested for and won general seats and not
to all enlisted political parties---Political party which does not win (any) general seats, is not
entitled to allocation of the reserved seats.

(j) Constitution of Pakistan---

----Arts.51(6)(d), proviso, 51(6)(e) & 106(3)(c)---Seats reserved for women and non-Muslims
in the National Assembly and the Provincial Assemblies, allocation of---Independent
candidates---Only political parties, not independent returned candidates, are entitled to the
allocation of the reserved seats---Independent returned candidates can only be counted
towards the proportional representation (of political parties) if they act in accordance with
the proviso to Article 51(6)(d) of the Constitution and join a political party, in which case
their seats shall be counted as the seats of the political parties to which they join for the
purpose of determining the proportional representation of political parties---For the
purpose of allocating reserved seats under Articles 51(6)(d) & 51(6)(e) of the Constitution,
the proportional representation of political parties is to be calculated on the basis of total
number of general seats won by each political party, including the seats of independent
returned candidates who join it, but excluding the seats of other independent returned
candidates.

(k) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Election Rules, 2017, R.95(2)---Rule 95(2) of the
Elections Rules, 2017, vires of---Seats reserved for women and non-Muslims in the National
Assembly and the Provincial Assemblies, allocation of---No reserved seat should ordinarily
be left vacant---Adopting an interpretation of paragraphs (d) and (e) of Article 51(6) of the
Constitution that would result in holding certain reserved seats vacant would lead to a form
of disenfranchisement, where the electorate's mandate is not fully realised in terms of
gender and minority representation, and thus frustrate the constitutional objective of
providing for such reserved seats---Rule 95(2) of the Elections Rules, 2017 which provides
that the seats won by independent candidates, other than those who join a political party,
shall be excluded for the purpose of determining the share of each political party, is thus
found consistent with the constitutional provisions, as it ensures the constitutional objective
that no reserved seat should ordinarily remain vacant.

(l) Constitution of Pakistan---

----Arts. 17(2), 19, 51(6)(d) & 51(6)(e) & 106(3)(c)---Seats reserved for women and non-
Muslims in the National Assembly and the Provincial Assemblies---Right of a political party
to reserved seats proportionate to the general seats won---Scope---Right to so many of the
reserved seats that are proportionate to the general seats won by a political party is an
integral part of the right to form a political party, as this right also gives the "life and
substance" to the said fundamental right---Therefore, denial of the right to reserved seats
proportionate to the general seats won by it would violate the fundamental rights of a
political party guaranteed by Article 17(2) of the Constitution as well as the fundamental
right to vote of the electorate that have voted for such political party guaranteed by Article
19 of the Constitution.

(m) Administration of justice---

----Wrongful acts/omissions of public functionaries---No person should be made to suffer or

be prejudiced by an unlawful act or omission of public functionaries---If any person suffers
the loss of any right or benefit because of an unlawful act or omission of a public
functionary, he is entitled, by reason of an obligation of justice, to be restored to that right
or benefit and put in the same position, insofar as is possible, as he would have been if such
unlawful act or omission had not been made by the public functionary.

(n) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to do complete justice---Scope---General

power of the Supreme Court under Article 187(1) of the Constitution is to be invoked and
exercised by the Court to do complete justice in any case when there is no specific provision
of law that covers or addresses the matter or issue involved---Power under Article 187(1) of
the Constitution is focused on achieving and prioritizing fairness to ensure complete justice
in any case---While doing complete justice in the exercise of its general power under Article
187(1) of the Constitution, the Supreme Court is not handicapped by any technicality or rule
of practice or procedure, nor is the exercise of this power by the Court dependent on an
application by a party.

Dossani Travels v. Travels Shop PLD 2014 SC 1; Saddaqat Khan v. Collector Land
Acquisition PLD 2010 SC 878; Martin Dow Marker Ltd. v. Asadullah Khan 2020 SCMR 2147
and State v. Alif Rehman 2021 SCMR 503 ref.

(o) Constitution of Pakistan---

----Arts. 17(2), 19, 51(6)(d) & 51(6)(e)---Seats reserved for women and non-Muslims in the
National Assembly and the Provincial Assemblies---Case before the Supreme Court regarding
dispute over allocation of reserved seats---Candidate for the seat reserved for women in the
National Assembly---Not a necessary party to the case---A contesting candidate or a
returned candidate to the seats reserved for women or non-Muslims is not a necessary
party to a dispute where the matter to be decided is which political party and in what
proportion is entitled to the reserved seats---Persons nominated by a political party for
reserved seats or elected to such seats do not have a personal right to such seats---It is the
right of the electorate guaranteed under Articles 17(2) and 19 of the Constitution,
exercisable through political parties, to have proportional representation in the reserved
seats, not of the person nominated for or elected to such seats.

(p) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 98, 104 &
215(5)---Election Rules, 2017, R. 94, Explanation---Seats reserved for women and non-
Muslims in the National Assembly and the Provincial Assemblies, allocation of---Eligible
political parties---Pakistan Tehreek-e-Insaf ("PTI") [a political party] denied its election
symbol by the Election Commission of Pakistan for failing to conduct its intra-party
election---Whether Pakistan Tehreek-e-Insaf ("PTI")was eligible for the allocation of reserved
seats---Held, that lack or denial of an election symbol does not in any manner affect the
constitutional and legal rights of a political party to participate in an election---Pakistan
Tehreek-e-Insaf ("PTI") was and is a political party, which secured or won general seats in the
National and Provincial Assemblies in the General Elections of 2024---Directions issued by
the Supreme Court regarding the procedure and methodology for allocation of reserved
seats for women and minorities to PTI in the National and Provincial Assemblies stated.

(i) The lack or denial of an election symbol does not in any manner affect the constitutional
and legal rights of a political party to participate in an election (whether general or bye) and
to field candidates and the Election Commission of Pakistan ("Commission') is under a
constitutional duty to act, and construe and apply all statutory provisions, accordingly.

(ii) For the purposes, and within the meaning, of paragraphs (d) and (e) of clause (6) of
Article 51 ("Article 51 Provisions") and paragraph (c) of clause (3) of Article 106 ("Article 106
Provisions") of the Constitution, the Pakistan Tehreek-e-Insaf ("PTI") was and is a political
party, which secured or won (the two terms being interchangeable) general seats in the
National and Provincial Assemblies in the General Elections of 2024 as herein after provided.

(iii) During the course of the hearing of the instant appeals, counsel for the Commission
placed before the Court a list ("the List") of 80 returned candidates for the National
Assembly (now MNAs), setting out in tabular form particulars relating to their election.
Counsel made a categorical statement that the Commission stood by the data so provided to
the Court. In particular, the List contained three columns marked as follows: (i) "Statement
(on nomination form) given in declaration and oath by the person nominated (i.e., 'I belong
to')"; (ii) "Certificate of party affiliation under Section 66 of the Elections Act, 2017"; and (iii)
"Statutory Declaration/affidavit accompanying section 66 certificate". In the peculiar facts
and circumstances of the General Election of 2024, it is declared that out of the aforesaid 80
returned candidates (now MNAs) those (being 39 in all and whose particulars are set out in
Annex A to this Order) in respect of whom the Commission has shown "PTI" in any one of
the aforesaid columns in the List, were and are the returned candidates whose seats were
and have been secured by the PTIwithin the meaning, and for purposes of, para (ii) above in
relation to the Article 51 Provisions.

(iv) In the peculiar facts and circumstances of the General Election of 2024, it is further
ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose
particulars are set out in Annex B to this Order) may, within 15 working days of this Order
file a statement duly signed and notarized stating that he or she contested the General
Election as a candidate of the political party specified therein. If any such statement(s) is/are
filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to
the political party concerned to file, within 15 working days, a confirmation that the
candidate contested the General Election as its candidate. A political party may in any case,
at any time after the filing of a statement asaforesaid, of its own motion file its confirmation.
If such a statement is filed, and is confirmed by the political party concerned, then the seat
secured by such candidate shall be forthwith deemed to be a seat secured by that political
party for the purposes of para (ii) above in relation to the Article 51 Provisions. The
Commission shall also forthwith issue, and post on its website, a list of the retuned
candidates (now MNAs) and seats to which this para applies within 7 days after the last date
on which a political party may file its confirmation and shall simultaneously file a compliance
report in the Court.

(v) For the purposes of para (ii) of this Order in relation to the Article 51 Provisions, the
number of general seats secured by PTI shall be the total of the seats declared in terms of
para (iii) and those, if any, to which para (iv)applies. The PTI shall be entitled to reserved
seats for women and minorities in the National Assembly accordingly. PTI shall, within
15working days of this Order file its lists of candidates for the said reserved seats and the
provisions of the Elections Act, 2017 ("Act") (including in particular S. 104) and the Elections
Rules, 2017 ("Rules") shall be applied to such lists in such manner as gives effect to this
Order in full measure. The Commission shall, out of the reserved seats for women and
minorities in the National Assembly to which para (vii) of this Order applies, notify as elected
in terms of the Article 51 Provisions, that number of candidates from the lists filed (or, as the
case may be, to be filed) by the PTI as is proportionate to the general seats secured by it in
terms of paras (iii) and (iv) of this Order.

(vi) The order of the Election Commission of Pakistan ("Commission") dated 01.03.2024
("Impugned Order") is declared to be ultra vires the Constitution, without lawful authority
and of no legal effect.

(vii) The notifications (of various dates) whereby the persons respectively mentioned
therein (being the persons identified in the Election Commission's notification
No.F.5(1)/2024-Cord. dated 13.05.2024) have been declared to be returned candidates for
reserved seats for women and minorities in the National and Provincial Assemblies are
declared to be ultra vires the Constitution, without lawful authority and of no legal effect,
and are quashed from 06.05.2024 onwards, being the date an interim order was made by
the Court.

(viii) The foregoing paras shall apply mutatis mutandis for purposes of the Article 106
Provisions in relation to PTI (as set out in para (ii) herein above) for the reserved seats for
women and minorities in the Khyber Pakhtunkhwa, Punjab and Sindh Provincial Assemblies
to which para (vii) of this Order applies. In case the Commission or PTI need any clarification
or order so as to give effect to this para in full measure, it shall forthwith apply to the Court
by making an appropriate application, which shall be put up before the Judges constituting
the majority in chambers for such orders and directions as may be deemed appropriate.

Per Yahya Afridi, J. [Minority view]

(q) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 104 & 215(5)---
Election Rules, 2017, R. 92---Seats reserved for women and non-Muslims in the National
Assembly and the Provincial Assemblies, allocation of---Eligible political parties---Pakistan
Tehreek-e-Insaf ("PTI") [a political party] denied its election symbol by the Election
Commission of Pakistan for failing to conduct its intra-party election---Whether Sunni
Ittehad Council ("SIC") [a political party] which was joined by 80 independent returned
candidates, who were backed by PTI, was eligible for the allocation of reserved seats---
Whether Pakistan Tehreek-e-Insaf ("PTI") was eligible for the allocation of reserved seats---
Sunni Ittehad Council does not fulfil the conditions prescribed for a political party under the
enabling provisions of the Constitution and the law to be allowed/allocated reserved seats
for women and non-Muslims in the National Assembly or the Provincial Assemblies---
However, Pakistan Tehreek-e-Insaf ("PTI") did fulfil the conditions prescribed for a political
party under the enabling provisions of the Constitution and the law to be allowed/allocated
reserved seats for women and non-Muslims---Procedure and methodology for allocation of
reserved seats for women and minorities to PTI in the National and Provincial Assemblies
stated.

A fundamental prerequisite for a political party to qualify for reserved seats is the
winning of at least one general seat in the elections. Consequently, the entitlement of a
political party to reserved seats is inextricably linked to its success on at least one general
seat. Similarly, a political party must win a general seat to benefit from the inclusion of
independent candidates, so as to become a part of its numerical strength for the purpose of
allocation of reserved seats.

Sunni Ittehad Council ("SIC") is a registered political party, but it did not field any
candidate for a seat in the National Assembly or Provincial Assemblies in the General
Election, 2024. Thus, having won no seat in the houses, it cannot seek to include the
independent returned members of the respective houses to enhance its strength for the
allocation of reserved seats within the contemplation of Articles 51 and 106 of the
Constitution. Further, SIC had not submitted any list of candidates for reserved seats for
women or for non-Muslims within the period fixed by Election Commission of Pakistan
('ECP'), as reflected in the Schedule of Election notified in the official gazette. SIC does not
fulfil the conditions prescribed for a political party under the enabling provisions of the
Constitution and the law to be allocated reserved seats for women and non- Muslims in the
National Assembly and Provincial Assemblies.

Pakistan Tehreek-e-Insaf ("PTI") fulfils the conditions prescribed for a political party
under the enabling provisions of the Constitution and the law to be allowed/allocated
reserved seats for women and non-Muslims, in terms that:

i. A candidate for a seat in the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to Pakistan Tehreek-e-Insaf ("PTI")
and duly submitted a certificate of the same political party confirming that he/she is the
nominated candidate of PTI for the respective constituency, shall remain so, and cannot be
declared independent, unless he/she submitted a written declaration to the Election
Commission of Pakistan or Returning Officer to be treated as the candidate of another
political party or as an independent candidate;
ii. A returned candidate to the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to PTI and duly submitted a
certificate of the same political party confirming that he/she is the nominated candidate of
PTI for the respective constituency, shall remain so, and this consistent position maintained
by a returned candidate throughout the electoral process should be legally recognized by
the Election Commission of Pakistan and such returned candidate cannot be treated as the
returned candidate of another political party or as an independent returned candidate, and
thus, the reserved seats for women and non- Muslims are to be allowed/ allocated to PTI,
accordingly;

iii. A candidate nominated by PTI for a constituency of the National Assembly or the
Provincial Assembly who, after being declared returned, joined another political party or
sought to be treated as independent, raises serious concerns about disregarding the trust
reposed in him/her by the voters, thus undermining the will of the people; and

iv. The legal implications, effects and consequences of the determinations made above in
paragraphs (ii) and (iii), as well as the actions or inactions of the Election Commission of
Pakistan thereon, although deeply concerning, have not been challenged in the present
appeals and petitions; and the persons who would be affected or aggrieved are not parties
before the Supreme Court. Therefore, issuing definitive directions to the Election
Commission of Pakistan qua the allocation of specific number of reserved seats for women
and non-Muslims to a political party in the National Assembly and the Provincial Assemblies
would not be legally appropriate.

Accordingly, the Election Commission of Pakistan is directed to decide the allocation of

reserved seats for women and non- Muslims to political parties in the National Assembly
and the Provincial Assemblies in the light of the determinations made hereinabove after
providing an opportunity of hearing to the parties concerned, and if required revisit its
earlier decisions on the matter.

(r) Constitution of Pakistan---

----Art. 187(1)---Power of the Supreme Court to do complete justice---Scope---While the

undeniable power of the Supreme Court to do complete justice under Article 187 of the
Constitution is recognized, exercising this power in the absence of an aggrieved party
directly approaching the Court could set a dangerous and far-reaching precedent---Such a
course risks undermining the principles of due process and judicial restraint, potentially
leading to an overreach of judicial authority---Exercise of this power must, therefore, be
reserved for exceptional circumstances, where there is a clear and compelling need to
intervene to bolster the rights of the aggrieved petitioner, and prevent a miscarriage of
justice.

Per Jamal Khan Mandokhail, J; Qazi Faez Isa, CJ. agreeing [Minority view]:

(s) Interpretation of Constitution---

----Supreme Court can interpret the Constitution, but it must ensure that words are not read
into it nor should it ascribe artificial meaning to commonly understood words---Court must
ensure that words are not read into the Constitution and no artificial meaning is to be
ascribed to commonly understood words.

(t) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e) & 106(3)(c)---Elections Act (XXXIII of 2017), Ss. 66, 67, 104 &
215(5)---Seats reserved for women and non-Muslims in the National Assembly and the
Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf
("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan
for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a
political party] which was joined by 80 independent returned candidates, who were backed
by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf
("PTI") was eligible for the allocation of reserved seats---Held, that Sunni Ittehad Council
("SIC") did not contest the General Elections of the year 2024, but demands allocation of
reserved seats on account of inclusion of independent parliamentarians in it---SIC did not
secure a single seat in the National Assembly or any of the Provincial Assemblies nor
submitted a list of its candidates for seats reserved for women and non-Muslims---Thus, it is
not entitled to any of the reserved seats in the National Assembly and in the Provincial
Assemblies---Impugned judgment and the order dated 1 March 2024 of the Election
Commission of Pakistan ("ECP") to such extent is upheld---Non-allocation of symbol to a
political party, in no way prevents a candidate from filing a declaration about his affiliation
with that political party, nor does it prevent such political party from nominating a candidate
to contest an election---Impugned judgment of the High Court and the order of the ECP to
the extent of the proportional representation distribution of seats amongst the political
parties which won and secured seats is also maintained, however, since the ECPcalculated
and allocated the seats to the parties by the exclusion of the Pakistan Tehreek-e-Insaf ("PTI")
candidates, therefore, to such extent, the impugned judgment of the High Court and the
order of the ECP are set aside---A number of candidates had submitted their nomination
papers declaring on oath that they belonged to PTI supported by an affiliation certificate of
the said party, though some did not submit affiliation certificates of PTI, however, since they
stated on oath that they belonged to PTI, and did not contradict themselves, they should be
considered to be members of PTI in the National and the Provincial Assemblies---ECP by
misinterpreting a judgment of the Supreme Court dated 13 January 2024, which was
regarding non-holding intra-party elections in PTI, wrongly mentioned the said candidates of
the PTI as independents in Form 33 of the Election Rules---ECP had no authority to declare
validly nominated candidates of a political party to be independent candidates---Similarly, a
candidate who once declares himself/herself as a candidate of a political party, can not
subsequently resile from his/her candidature of a particular party, after the last date of
withdrawal of the nomination papers---Neither the PTI nor any candidate affiliated with PTI
approached either the Supreme Court before or during the hearing of these proceedings, or
the High Court to challenge the decision of the ECP, declaring them as independents---
However, in view of the fact that the appeal and the petition are a continuation of election
proceedings before the ECP, the Supreme Court can look into the vires of the decision of the
ECP in the light of the provisions of Article 51(1)(d) and (e) of the Constitution read with
sections 66, 67 and 104 of the Elections Act, 2017 to safeguard the interest of women and
non-Muslims---As a consequence whereof, the candidates who had submitted their
nomination papers declaring that they belonged to PTI and had not filed a document
showing affiliation with another political party before the last date of withdrawal of the
nomination papers, should have been treated as the Parliamentary Party of PTI, but the
needful was not done by the ECP---Consequently, the PTI as a Parliamentary Party is entitled
to the reserved seats---ECP should recalculate and reallocate the reserved seats amongst the
political parties, including the PTI, as provided by Article 51(6)(d) and (e) of the
Constitution---Candidates who had submitted their nomination papers by 24 December
2023, which was the last date of submission of nomination papers, and had declared them
selves either as independent candidates or had left blank the relevant column in the
nomination papers/declaration and were elected shall be considered to be independents---
All those who joined the SIC are presumed to have done so out of their own free will---None
of them claimed to have joined SIC because of any misunderstanding of any judgment, the
law, compulsion, coercion or undue influence and it is not for the Supreme Court to presume
otherwise---They are now members of SIC---Neither the Constitution nor the Elections Act,
2017 permits the Supreme Court to issue direction or provide an opportunity or additional
avenue to them to join another political party and that too, within a period of fifteen days.

(u) Constitution of Pakistan---

----Arts. 51(3), 51(6)(d) & (e), 106(3)(c) & 224(6)---Seats reserved for women and non-
Muslims in the National Assembly and the Provincial Assemblies---Whether reserved seats
could be left vacant---Held, that under Article 51(3) of the Constitution, the total number of
seats in the National Assembly shall be 326, out of which 60 seats are reserved for women
and 10 seats for non-Muslims---Such right of women and non-Muslims has been guaranteed
by the Constitution---They shall be elected in accordance with the law through proportional
representation system of political parties' list of candidates on the basis of total number of
general seats secured by each political party from the Province concerned in the National
Assembly and the Provincial Assemblies, as provided by Article 51(6) (d) and (e) of the
Constitution---Therefore, they cannot be deprived of this right of theirs by leaving these
seats vacant, and all reserved seats must be filled in, as provided by Article 224(6) of the
Constitution.

Per Qazi Faez Isa, CJ.;agreeing with Jamal Khan Mandokhail, J. [Minority view]:

(v) Constitution of Pakistan---

----Arts. 51(6)(d), 51(6)(e), 106(3)(c) & 10A---Elections Act (XXXIII of 2017), Ss. 66, 104 &
215(5)---Seats reserved for women and non-Muslims in the National Assembly and the
Provincial Assemblies, allocation of---Eligible political parties---Pakistan Tehreek-e-Insaf
("PTI") [a political party] denied its election symbol by the Election Commission of Pakistan
for failing to conduct its intra-party election---Whether Sunni Ittehad Council ("SIC") [a
political party] which was joined by 80 independent returned candidates, who were backed
by PTI, was eligible for the allocation of reserved seats---Whether Pakistan Tehreek-e-Insaf
("PTI") was eligible for the allocation of reserved seats---Constitutional violations and
illegalities in the majority's short order of 12 July 2024, the majority's detailed judgment of
23 September 2024, the order/clarification of 14 September 2024 and the clarification of 18
October 2024 highlighted.

Present appeals were heard by a thirteen-member Bench of the Supreme Court,

comprising of all judges of the Supreme Court. The majority's short order concluded by
permitting the Election Commission of Pakistan ('ECP') and Pakistan Tehreek-i-Insaf ('PTI') to,
'apply to the Court by making an appropriate application, which shall be put up before the
Judges constituting the majority in chambers for such orders and directions as may be
deemed appropriate'. This deviated from how courts have always functioned, was novel and
unprecedented.

The majority of eight judges decided to part ways with the Court, comprising of thirteen
judges, which had heard the appeals. The majority set up its own virtual court, permitted
the making of 'an appropriate application' by the ECP and PTI, and directed that such
appropriate application would only be heard by them whilst cloistered in Chambers. In doing
this the majority of the Judges effectively legislated, because neither the Constitution nor
any law permits what they did. Incidentally no party or counsel during the hearing ever
suggested the course of action which the majority adopted, and neither the majority's short
order nor the majority's detailed judgment offers an explanation to justify it.

The majority disregarded the precedents of the Supreme Court, and they not only
carved out a separate eight-member 'court' from the thirteen-member Court, but also
innovated further by not finally concluding the hearing of the appeals, because they
permitted appropriate application to be filed, introduced timelines and changed what the
Constitution provided. The timelines that were introduced were as under:

(i) 41 returned candidates to file a statement within 15 days;

(ii) Upon receipt of the above statements the ECP to give notice to the political party
concerned;

(iii) Then within 15 days the political party to submit its 'confirmation that the candidates
contesting the General Elections as its candidates'; and

(iv) The ECP within 7 days to issue and post on its website 'the list of candidates now MNAs'.

Judges may decide or dispose of a case as per their understanding of the Constitution
and the law but it is critical that the case must be decided or disposed of. Permitting
appropriate application to be filed by the ECP or the PTI meant that the case was not
decided or disposed of. This coupled with the stated timelines effectively kept the appeals
pending. In civil cases after a judgment is pronounced the decree follows. In constitutional
cases too a judgment can be executed, provided it is finally and conclusively decided. The
majority's short order and the majority's detailed judgment did not conclude the appeals.
The well trodden legal path was abandoned by the majority which created unnecessary and
avoidable problems. Since the appeals were not finally decided there was no decision which
could be stated to be binding, in terms of Article 189 of the Constitution. Similarly, contempt
of court proceedings for any non-compliance of the 'order of the Court', under Article 204 of
the Constitution, cannot be initiated. The right of review, which Article 188 of the
Constitution grants, was also effectively negated.

The majority's short order was announced on 12 July 2024, following which the Judges
had to issue their detailed reasons for the same. Instead something inexplicable happened.
A purported order/clarification was uploaded on the Supreme Court's website on 14
September 2024, and this was done without informing the Chief Justice, the other Judges (in
the minority), and bypassing the Registrar and the office of the Supreme Court. And, this
was done on a Saturday, after the Registrar had left. The majority's order/clarification of
14th September was admittedly passed without first listing the cases, without issuing notices
to the parties and without issuance of the requisite notice to the Attorney-General for
Pakistan. The title of the 'order' stated - 'In Chambers'. However, not all of the said eight
Judges (in majority) were in the Supreme Court premises and some were not even in
Islamabad (principal seat of the Supreme Court). By not issuing notices, not granting an
opportunity of hearing, and not conducting the hearing in open Court, the well-established
rules of natural justice were transgressed, and Article 10A of the Constitution, which gives
protection to procedural fairness and has elevated due process and fair trial to the status of
a Fundamental Right, was contravened. The mandatory requirements of openness and
transparency were also transgressed.

The majority's order/clarification of 14th September was followed by yet another; the
majority's clarification of 18th October which, like the earlier one of 14 September 2024, was
uploaded on the website of the Supreme Court in similar manner. This was done on Friday,
18 October 2024 at 3.59 pm. This time too the cause list was not issued, parties were not
informed, and an opportunity of hearing was not provided. Where and when the Judges (in
majority) had met also remains a mystery. The majority's orders/clarifications of
14th September, 2024 and 18th October, 2024 cannot be stated to have been issued by a
'Court'; the forum which issued them was coram non judice. Moreover, such forum did not
comply with the rudimentary principles of natural justice, of due process and of fair trial.
Therefore, the same do not constitute legal orders, and are of no legal effect. They also
cannot be categorized as a 'decision' of the Supreme Court (in terms of Article 189 of the
Constitution), resultantly, they need not be followed or acted upon.

In Civil Appeals
For Appellants

(In both Appeals)

Faisal Siddiqui, Advocate Supreme Court,

assisted by Ammar Rafique, Advocate along with Ajmal Ghaffar Toor, Advocate Supreme
Court,

Haider Bin Masud, Advocate

and Sahibzada M. Hamid Raza

(appellant in person)

For Respondent No. 1-ECP

(in both Appeals)

Sikandar Bashir Mohmand, Advocate Supreme Court

assisted by Abdullah Noor

and Hamza Azmat, Advocates

along with M. Arshad, D.G. (Law) ECP and

Ms. Saima Tariq Janjua, D.D. Law (ECP)

For PPP

(In both Appeals)

Farooq H. Naek, Senior Advocate Supreme Court

assisted by Asad Mehmood Abbasi, Advocate Supreme Court,

Sheraz Shaukat Rajpar, Advocate and

Syed Qaim Shah, Advocate.

For PML(N)

(In C.A. No. 333/24)

Haris Azmat, Advocate Supreme Court,

assisted by Ms. Faiza Asad, Advocate and

Ch. Akhtar Ali, Advocate-on-Record.

For MQM

Nemo.
For Respondent No.5

(in C.A. No. 333/2024)

M. Siddique Awan, Advocate Supreme Court.

For Respondent No. 9

(in C.A. No. 333/24)

Syed Rifaqat Hussain Shah, Advocate Supreme Court/Advocate-on-Record.

For Respondent No. 11

(in C.A. No. 333/24)

Kamran Murtaza, Senior Advocate Supreme Court.

For Respondents Nos. 15 to 19, 21-22.

(In C.A. No. 333/24)

M. Makhdoom Ali Khan, Senior Advocate Supreme Court,

Sarmad Hani, Advocate Supreme Court,

Saad Mumtaz Hashmi, Advocate Supreme Court,

assisted by Zarar Qadir Shoro, Advocate

along with Yawar Mukhtar, Advocate.

For Respondent No. 20

(In C.A. No. 333/24)

Zulfikar Khalid Maluka, Advocate Supreme Court.

For Respondent No. 9

(In C.A. No. 333/24)

M. Shahzad Shaukat, Advocate Supreme Court.

assisted by Raza ur Rehman, Advocate.

In Civil Petitions

For the Petitioners

(In [Link]. Nos. 1612-1514/24)

Asad Jan Durrani, Advocate Supreme Court.

along with Malik Khawas, Assistant Law Officer,

 KPK Assembly

For the Petitioners

(In [Link]. Nos. 1615-1617)

Shah Faisal Utmankhail,

Advocate-General, KP.

Kausar Ali Shah, AAG, KPK and

Zahid Yousaf, Advocate-on-Record.

For Respondent No. 1

(in [Link]. Nos. 1612 and 1616/24)

Amir Javed, Advocate Supreme Court.

For R-6 (in C.P. 1612/24) and

For R-2 to 5 (in C.P. No. 1616/24)

Shah Khawar, Advocate Supreme Court.

For Respondents Nos. 1 to 6

(In [Link]. Nos. 1613 and 1617/2024)

Kamran Murtaza, Senior Advocate Supreme Court and

Qari Abdul Rasheed, Advocate Supreme Court.

For Respondents Nos. 1, 2, 3 and 8

(In C.P. No. 1614/24)

Imran Khan, Advocate Supreme Court.

In [Link].

For the Applicants:

(In [Link]. 3554 and 5913/24)

Salman Akram Raja, Advocate Supreme Court,

Sameer Khosa, Advocate Supreme Court,

assisted by Malik Ghulam Sabir,

Ramsa Banuri, Samreen Qureshi and

Hamad Amin, Advocates.

On Court Notice:

For the Federation:

Mansoor Usman Awan, Attorney-General for Pakistan.

(Assisted by: Ms. Maryam Ali Abbasi, Adv.)

along with Malik Javed Iqbal Wains, AAGP.

Raja M. Shafqat Abbasi, D.A.G.

Ms. Maryam Rasheed, Advocate.

For Government of Punjab:

Khalid Ishaq, Advocate-General, Punjab and

Sanaullah Zahid, Additional Advocate-General, Punjab.

For Government of Khyber Pakhtunkhwa:

Shah Faisal Utmankhail, Advocate-General, KP and

Shah Faisal Ilyas, Additional Advocate-General, KP.

For Government of Sindh:

Miran Muhammad Shah, Addl. A.G., Sindh

(through video-link from Karachi)

For Government of Balochistan:

Muhammad Asif Reki, Advocate-General, Balochistan.

(Through video-link from Quetta)

M. Ayaz Swati, Addl. A.G.

Tahir Iqbal Khattak, Additional Advocate-General, Balochistan.

(At Islamabad)

For ICT:

Muhammad Ayyaz Shaukat, A.G., Islamabad.

Research Assistance:

Umer A. Ranjha, Judicial Law Clerk.

Date of hearing: 9th July, 2024.

ORDER*
 Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ.: For detailed
reasons to be recorded later and subject to what is set out therein by way of amplification
and/or explanation or otherwise, these appeals are decided in the following terms:

1. The impugned judgment dated 25.03.2024 of the learned Full Bench of the High Court is
set aside to the extent it is or may be inconsistent with this Order or the detailed reasons.

2. The order of the Election Commission of Pakistan ("Commission") dated 01.03.2024

("Impugned Order") is declared to be ultra vires the Constitution, without lawful authority
and of no legal effect.

3. The notifications (of various dates) whereby the persons respectively mentioned therein
(being the persons identified in the Commission's notification No.F.5(1)/2024-Cord. dated
13.05.2024) have been declared to be returned candidates for reserved seats for women
and minorities in the National and Provincial Assemblies are declared to be ultra vires the
Constitution, without lawful authority and of no legal effect, and are quashed from
06.05.2024 onwards, being the date an interim order was made by the Court in CPLA Nos.
1328-9 of 2024, the leave petitions out of which the instant appeals arise.

4. It is declared that the lack or denial of an election symbol does not in any manner affect
the constitutional and legal rights of a political party to participate in an election (whether
general or bye) and to field candidates and the Commission is under a constitutional duty to
act, and construe and apply all statutory provisions, accordingly.

5. It is declared that for the purposes, and within the meaning, of paragraphs (d) and (e) of
clause (6) of Article 51 ("Article 51 Provisions") and paragraph (c) of clause (3) of Article 106
("Article 106 Provisions") of the Constitution, the Pakistan Tehreek e Insaf ("PTI") was and is
a political party, which secured or won (the two terms being interchangeable) general seats
in the National and Provincial Assemblies in the General Elections of 2024 as herein after
provided.

6. During the course of the hearing of the instant appeals, on 27.06.2024, learned counsel
for the Commission placed before the Court a list ("the List") of 80 returned candidates for
the National Assembly (now MNAs), setting out in tabular form particulars relating to their
election. Learned counsel made a categorical statement that the Commission stood by the
data so provided to the Court. In particular, the List contained three columns marked as
follows: (i) "Statement (on nomination form) given in declaration and oath by the person
nominated (i.e., 'I belong to')"; (ii) "Certificate of party affiliation under Section 66 of the
Elections Act, 2017"; and (iii) "Statutory Declaration/ affidavit accompanying section 66
certificate".

7. In the peculiar facts and circumstances of the General Election of 2024, it is declared
that out of the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and
whose particulars are set out in Annex A to this Order) in respect of whom the Commission
has shown "PTI" in any one of the aforesaid columns in the List, were and are the returned
candidates whose seats were and have been secured by the PTI within the meaning, and for
purposes of, para 5 above in relation to the Article 51 Provisions.

8. In the peculiar facts and circumstances of the General Election of 2024, it is further
ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose
particulars are set out in Annex B to this Order) may, within 15 working days of this Order
file a statement duly signed and notarized stating that he or she contested the General
Election as a candidate of the political party specified therein. If any such statement(s) is/are
filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to
the political party concerned to file, within 15 working days, a confirmation that the
candidate contested the General Election as its candidate. A political party may in any case,
at any time after the filing of a statement as aforesaid, of its own motion file its
confirmation. If such a statement is filed, and is confirmed by the political party concerned,
then the seat secured by such candidate shall be forthwith deemed to be a seat secured by
that political party for the purposes of para 5 above in relation to the Article 51 Provisions.
The Commission shall also forthwith issue, and post on its website, a list of the retuned
candidates (now MNAs) and seats to which this para applies within 7 days after the last date
on which a political party may file its confirmation and shall simultaneously file a compliance
report in the Court.

9. For the purposes of para 5 of this Order in relation to the Article 51 Provisions, the
number of general seats secured by PTI shall be the total of the seats declared in terms of
para 7 and those, if any, to which para 8 applies. The PTI shall be entitled to reserved seats
for women and minorities in the National Assembly accordingly. PTI shall, within 15 working
days of this Order file its lists of candidates for the said reserved seats and the provisions of
the Elections Act, 2017 ("Act") (including in particular section 104) and the Elections Rules,
2017 ("Rules") shall be applied to such lists in such manner as gives effect to this Order in
full measure. The Commission shall, out of the reserved seats for women and minorities in
the National Assembly to which para 3 of this Order applies, notify as elected in terms of the
Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be,
to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras
7 and 8 of this Order.

10. The foregoing paras shall apply mutatis mutandis for purposes of the Article 106
Provisions in relation to PTI (as set out in para 5 herein above) for the reserved seats for
women and minorities in the Khyber Pakhtunkwa, Punjab and Sindh Provincial Assemblies to
which para 3 of this Order applies. In case the Commission or PTI need any clarification or
order so as to give effect to this para in full measure, it shall forthwith apply to the Court by
making an appropriate application, which shall be put up before the Judges constituting the
majority in chambers for such orders and directions as may be deemed appropriate.

Sd/- Sd/-
 Judge Judge

Sd/- Sd/-

Judge Judge

Sd/- Sd/-

Judge Judge

Sd/- Sd/-

Judge Judge

Islamabad, the

12th of July, 2024

Annexure-A

(Names of Candidates Affiliated with the Pakistan Tehreek-e-Insaf

as per the list verified from the data provided by ECP1)

Sr. No. Number and Name of the Name of the Candidate

Constituency

1. NA-2 (Swat-I) Amjad Ali Khan

2. NA-3 (Swat-II) Saleem Rehman

3. NA-4 (Swat-III) Sohail Sultan

4. NA-6 (Lower Dir-I) Muhammad Bashir Khan

5. NA-7 (Lower Dir-II) Mehboob Shah

6. NA-9 (Malakand) Junaid Akbar

7. NA-17 (Abbottabad-II) Ali Khan Jadoon

8. NA-19 (Swabi-I) Asad Qaiser

9. NA-20 (Swabi-II) Shahram Khan

10. NA-21 (Mardan-I) Mujahid Ali

11. NA-24 (Charsadda-I) Anwar Taj

12. NA-25 (Charsadda-II) Fazal Muhammad Khan

13. NA-29 (Peshawar-II) Arbab Amir Ayub

14. NA-30 (Peshawar-III) Shandana Gulzar Khan

15. NA-31 (Peshawar-IV) Sher Ali Arbab

16. NA-32 (Peshawar-V) Asif Khan

17. NA-33 (Nowshera-I) Syed Shah Ahad Ali Shah

18. NA-38 (Karak) Shahid Ahmad

19. NA-39 (Bannu) Nasim Ali Shah

20. NA-41 (Lakki Marwat) Sher Afzal Khan

21. NA-83 (Sargodha-II) Usama Ahmed Mela

22. NA-84 (Sargodha-III) Shafqat Abbas

23. NA-95 (Faisalabad-I) Ali Afzal Sahi

24. NA-96 (Faisalabad-II) Rai Haider Ali Khan

25. NA-100 (Faisalabad-VI) Nisar Ahmed

26. NA-101 (Faisalabad-VII) Rana Atif

27. NA-102 (Faisalabad-VIII) Changaze Ahmad Khan

28. NA-103 (Faisalabad-IX) Muhammad Ali Sarfraz

29. NA-115 (Sheikhupura-III) Khurram Shahzad Virk

30. NA-122 (Lahore-VI) Sardar Muhammad Latif Khan Khosa

31. NA-143 (Sahiwal-III) Rai Hassan Nawaz Khan

32. NA-149 (Multan-II) Malik Muhammad Aamir Dogar

33. NA-150 (Multan-III) Makhdoom Zain Hussain Qureshi

34. NA-154 (Lodhran-I) Rana Muhammad Faraz Noon

35. NA-171 (Rahim Yar Khan-III) Mumtaz Mustafa

36. NA-179 (Kot Addu-I) Muhammad Shabbir Ali Qureshi

37. NA-181 (Layyah-I) Umber Majeed

38. NA-182 (Layyah-II) Awais Haider Jakhar

39. NA-185 (D.G. Khan-II) Zartaj Gul

Annexure-B

(Names of Independent Candidates)

Sr. No. Number and Name of the Constituency Name of the Candidate

1. NA-1 (Chitral Upper-cum- Chitral Lower) Abdul Latif

2. NA-5 (Upper Dir) Sahibzada Sibghatullah

3. NA-13 (Battagram) Muhammad Nawaz Khan

4. NA-22 (Mardan-II) Muhammad Atif

5. NA-23 (Mardan-III) Ali Muhammad

6. NA-26 (Mohmand) Sajid Khan

7. NA-27 (Khyber) Muhammad Iqbal Khan

8. NA-34 (Nowshera-II) Zulfiqar Ali

9. NA-35 (Kohat) Shehryar Afridi

10. NA-36 (Hangu-cum-Orakzai) Yousaf Khan

11. NA-42 (South Waziristan Upper-cum- Zubair Khan

South Waziristan Lower)

12. NA-66 (Wazirabad) Mohammad Ahmed Chattha

13. NA-67 (Hafizabad) Aniqa Mehdi

14. NA-68 (Mandi Bahauddin-I) Haji Imtiaz Ahmed Choudhry

15. NA-78 (Gujranwala-II) Muhammad Mobeen Arif

16. NA-79 (Gujranwala-III) Ihsan Ullah Virk

17. NA-181 (Gujranwala-V) Ch. Bilal Ejaz

18. NA-86 (Sargodha-V) Muhammad Miqdad Ali Khan

19. NA-89 (Mianwali-I) Muhammad Jamal Ahsan Khan

20. NA-90 (Mianwali-II) Umair Khan Niazi

21. NA-91 (Bhakkar-I) M. Sana Ullah Khan Mastikhel

22. NA-93 (Chiniot-I) Ghulam Muhammad

23. NA-97 (Faisalabad-III) Muhammad Saad Ullah

24. NA-99 (Faisalabad-V) Umar Farooq

25. NA-105 (Toba Tek Singh-I) Usama Hamza

26. NA-107 (Toba Tek Singh-III) Mohammad Riaz Khan

27. NA-108 (Jhang-I) Muhammad Mahbob Sultan

28. NA-109 (Jhang-II) Waqas Akram

29. NA-110 (Jhang-III) Muhammad Ameer Sultan

30. NA-111 (Nankana Sahib-I) Muhammad Arshad Sahi

31. NA-116 (Sheikhupura-IV) Khurram Munawar Manj

32. NA-129 (Lahore-XIII) Mian Muhammad Azhar

33. NA-133 (Kasur-III) Azim Uddin Zahid

34. NA-137 (Okara-III) Syed Raza Ali Gillani

35. NA-156 (Vehari-I) Ayesha Nazir

36. NA-170 (Rahim Yar Khan-II) Mian Ghous Muhammad

37. NA-172 (Rahim Yar Khan-IV) Javaid Iqbal

38. NA-175 (Muzaffargarh-I) Jamshaid Ahmad

39. NA-177 (Muzaffargarh-III) Muhammad Moazzam Ali Khan

40. NA-180 (Kot Addu-II) Fiaz Hussain

41. NA-183 (Taunsa) Khawaja Sheraz Mehmood

YAHYA AFRIDI, J.*---For reasons to be recorded later, Civil Appeals Nos. 333 and 334 of
2024, C.M.A. No. 2920 of 2024 in Civil Appeal No. 333 of 2024, Civil Petitions Nos. 1612,
1613, 1614, 1615, 1616 and 1617 of 2024 and C.M.A. No. 3554 of 2024 in C.P. Nil of 2024
are dismissed in terms that:

1. Sunni Ittehad Council does not fulfil the conditions prescribed for a political party under
the enabling provisions of the Constitution of Islamic Republic of Pakistan ("Constitution")
and the law to be allowed/allocated reserved seats for women and non-Muslims in the
National Assembly or the Provincial Assemblies.

2. Pakistan Tehreek-e-Insaf ("PTI") fulfils the conditions prescribed for a political party
under the enabling provisions of the Constitution and the law to be allowed/allocated
reserved seats for women and non-Muslims, in terms that:
 i. A candidate for a seat in the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to PTI and duly submitted a
certificate of the same political party confirming that he/she is the nominated candidate of
PTI for the respective constituency, shall remain so, and cannot be declared independent,
unless he/she submitted a written declaration to the Election Commission of Pakistan or
Returning Officer to be treated as the candidate of another political party or as an
independent candidate;

ii. A returned candidate to the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to PTI and duly submitted a
certificate of the same political party confirming that he/she is the nominated candidate of
PTI for the respective constituency, shall remain so, and this consistent position maintained
by a returned candidate throughout the electoral process should be legally recognized by
the Election Commission of Pakistan and such returned candidate cannot be treated as the
returned candidate of another political party or as an independent returned candidate, and
thus, the reserved seats for women and non-Muslims are to be allowed/ allocated to PTI,
accordingly;

iii. A candidate nominated by PTI for a constituency of the National Assembly or the
Provincial Assembly who, after being declared returned, joined another political party or
sought to be treated as independent, raises serious concerns about disregarding the trust
reposed in him/her by the voters, thus undermining the will of the people; and

iv. The legal implications, effects and consequences of the determinations made above in
paragraphs 2(ii) and 2(iii), as well as the actions or inactions of the Election Commission of
Pakistan thereon, although deeply concerning, have not been challenged in the present
appeals and petitions; and the persons who would be affected or aggrieved are not parties
before this Court. Therefore, issuing definitive directions to the Election Commission of
Pakistan qua the allocation of specific number of reserved seats for women and non-
Muslims to a political party in the National Assembly and the Provincial Assemblies would
not be legally appropriate.

3. Accordingly, the Election Commission of Pakistan is directed to decide the allocation of

reserved seats for women and non-Muslims to political parties in the National Assembly and
the Provincial Assemblies in the light of the determinations made hereinabove after
providing an opportunity of hearing to the parties concerned, and if required revisit its
earlier decisions on the matter. The needful be done within seven days of the receipt of this
order.

Sd/-

Judge

Islamabad
Arif

12th July, 2024.

Order*

in

Civil Appeal No.333/2024, Civil Miscellaneous Application No. 2920/ 2024 in Civil Appeal
No.333/2024, Civil Appeal No.334/ 2024, Civil Petitions Nos. 1612 to 1617/2024 and Civil
Miscellaneous Application No.3554/2024 in Civil Petition Nil/ 2024.

Sunni Ittehad Council through its Chairman,

Faisalabad and others …Appellants/Petitioners

Versus

Election Commission of Pakistan through its

Secretary, Islamabad and others Respondents

-------------

Justice Amin-ud-Din Khan

Justice Naeem Akhtar Afghan

For reasons to be recorded later, we dismiss the appeals, petition as well as CMAs and the
judgment of the Peshawar High Court is upheld.

Sd/- Sd/-

Judge Judge

Islamabad: 12th July, 2024.

Order of the Court

By a majority of 8 (comprising Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali
Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan
Saadat Khan, JJ) the instant appeals are decided in terms of the short order of the majority
of even date (and the other petitions including leave petitions and [Link] are decided
accordingly).

I agree with the short order authored by Justice Jamal Khan Mandokhail.

Justice Qazi Faez Isa, CJ.

Justice Syed Mansoor Ali Shah, J.

Justice Munib Akhtar, J.

 With utmost respect I differ. My short order is appended herewith.

Justice Yahya Afridi, J.

I have attached my separate short order dismissing all the appeals, petitions and
applications and uphold the impugned judgment of the Peshawar H.C.

Justice Amin-ud-Din Khan, J.

I have appended my separate order.

Justice Jamal Khan Mandokhail, J.

Justice Muhammad Ali Mazhar, J.

Justice Ayesha A. Malik, J.

Justice Athar Minallah, J.

Justice Syed Hasan Azhar Rizvi, J.

Justice Shahid Waheed, J.

Justice Irfan Saadat Khan, J.

I agree with the short order passed by J. Amin-ud-Din Khan.

Justice Naeem Akhtar Afghan, J.

Announced.

Islamabad,

12 July, 2024.

Approved for reporting.

ORDER*

JAMAL KHAN MANDOKHAIL, J.---For reasons to be recorded later, we dispose of these

appeals, petitions and miscellaneous applications through a short order as under:

1. These matters involve a controversy regarding the allocation of seats reserved for
women and non-Muslims. The Sunni Itehad Council ("SIC") did not contest the General
Elections of the year 2024. SIC, which demands allocation of reserved seats on account of
inclusion of independent parliamentarians in it, did not secure a single seat in the National
Assembly or any of the Provincial Assemblies nor submitted a list of its candidates for seats
reserved for women and non-Muslims. Thus, it is not entitled to any of the reserved seats in
the National Assembly and in the Provincial Assemblies. The impugned judgment and the
order dated 1 March 2024 of the Election Commission of Pakistan ("ECP") to such extent is
upheld.
2. Under Article 51(3) of the Constitution of the Islamic Republic of Pakistan, 1973
("Constitution"), the total number of seats in the National Assembly shall be 326, out of
which 60 seats are reserved for women and 10 seats for non-Muslims. Such right of women
and non-Muslims has been guaranteed by the Constitution. They shall be elected in
accordance with the law through proportional representation system of political parties' list
of candidates on the basis of total number of general seats secured by each political party
from the Province concerned in the National Assembly and the Provincial Assemblies, as
provided by Article 51(6) (d) and (e) of the Constitution. Therefore, they cannot be deprived
of this right of theirs by leaving these seats vacant, and all reserved seats must be filled in, as
provided by Article 224(6) of the Constitution.

3. The impugned judgment of the High Court and the said order of the ECP to the extent of
the proportional representation distribution of seats amongst the political parties which
won and secured seats is also maintained, however, since the ECP calculated and allocated
the seats to the parties by the exclusion of the Pakistan Tehreek-e-Insaf ("PTI") candidates,
therefore, to such extent, the impugned judgment of the High Court and the order of the
ECP are set aside.

4. During the hearing, it transpired that a number of candidates had submitted their
nomination papers declaring on Oath that they belonged to PTI supported by an affiliation
certificate of the said party, though some did not submit affiliation certificates of PTI,
however, since they stated on Oath that they belonged to PTI, and did not contradict
themselves, they should be considered to be members of PTI in the National and the
Provincial Assemblies. The ECP by misinterpreting the judgment of this Court dated 13
January 2024, which was regarding non-holding intra-party elections in PTI, wrongly
mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules.
The ECP had no authority to declare validly nominated candidates of a political party to be
independent candidates. Similarly, a candidate once declared himself/herself as a candidate
of a political party, could not subsequently resile from his/her candidature of a particular
party, after the last date of withdrawal of the nomination papers.

5. It is important to mention here that neither the PTI nor any candidate affiliated with PTI
approached either this Court before or during the hearing of these proceedings, or the High
Court to challenge the decision of the ECP, declaring them as independents. However, in
view of the fact that the appeal and the petition are a continuation of election proceedings
before the ECP, we can look into the vires of the decision of the ECP in the light of the
provisions of Article 51(1)(d) and (e) of the Constitution read with sections 66, 67 and 104 of
the Elections Act, 2017 to safeguard the interest of women and non-Muslims. As a
consequence whereof, the candidates who had submitted their nomination papers declaring
that they belonged to PTI and had not filed a document showing affiliation with another
political party before the last date of withdrawal of the nomination papers, should have
been treated as the Parliamentary Party of PTI, but the needful was not done by the ECP.
Consequently, the PTI as a Parliamentary Party is entitled to the reserved seats. The ECP
should recalculate and reallocate the reserved seats amongst the political parties, including
the PTI, as provided by Article 51(6)(d) and (e) of the Constitution.

6. The candidates who had submitted their nomination papers by 24 December 2023,
which was the last date of submission of nomi-nation papers, and had declared themselves
either as independent candidates or had left blank the relevant column in the nomination
papers/declaration and were elected shall be considered to be independents. SIC is a
registered political party and every indepen-dent member of the National Assembly and of
the Provincial Assemblies has a right to join it. All those who joined the SIC are presumed to
have done so out of their own free will. None of them claimed to have joined SIC because of
any misunderstanding of any judgment, the law, compulsion, coercion or undue influence
and it is not for this Court to presume otherwise.

7. We must ensure that words are not read into the Constitution nor to ascribe artificial
meaning to commonly understood words. We must also abide by validly enacted laws and
must not do anything either to hinder or facilitate a political party by ignoring the laws
mandate.

Chief Justice

Judge

Announced in open Court on 12th July, 2024.

at Islamabad Judge

JUDGMENT

DETAILED REASONS OF THE SHORT ORDER ANNOUNCED ON 12.7.2024 IN CIVIL APPEAL

NO. 333/2024, CMA NO. 2920/2024 IN CIVIL APPEAL NO.333/ 2024, CIVIL APPEAL NO.
334/2024, CIVIL PETITIONS NOS. 1612 TO 1617 OF 2024 AND CMA NO.3554 OF 2024 IN C.P.
NIL OF 2024.

AMIN-UD-DIN KHAN, J.

NAEEM AKHTAR AFGHAN, J.

The matter in issue relates to seats reserved for women and non-Muslims in the National
Assembly as well as Provincial Assemblies in accordance with Articles 51 and 106 of the
Constitution of Islamic Republic of Pakistan, 1973 ('the Constitution') after the general
elections which were held on 08.02.2024. After the elections, Sunni Ittehad Council
('SIC')1 wrote four letters, all dated 21.2.2024 to the Election Commission of Pakistan ('ECP')
claiming that after the General Elections held on 8.2.2024, independent candidates whose
notifications as returned candidates to the National Assembly/or any one of three Provincial
Assemblies i.e. Punjab, KPK and Sindh were issued by the ECP on different dates, joined SIC
as a Political Party, accordingly their consent forms/affidavits were filed by the SIC and
received in the Commission vide receipt diary numbers mentioned in the letters. The last
paragraph of the letters states as follows:

"we look forward to hearing from you at your earliest convenience so that we may
submit our priority list to the Commission for notifications of our MNAs (MPAs) on these
reserved seats".

These four letters are scanned here for convenience and to consider the admitted
position between the parties to the lis with regard to joining of independent returned
candidates to SIC.
2. A significant fact and an admitted position is that SIC did
not participate in the said General Elections as a political party. Not a single candidate
participated as a party candidate and even the Chairman of SIC/appellant No.2 participated
as an independent candidate in the general elections and was declared a returned candidate
as such. For the distribution of reserved seats for women and non-Muslims claimed by
various political parties on the basis of

proportional representation system of political parties, list of candidates, the matter was
fixed by the ECP for hearing before the Full Election Commission comprising of the Chairman
as well as four members and was heard and decided by the Commission through its order
announced on 1.3.2024. They held that SIC was not

entitled to claim the quota for reserved seats for women and non-Muslims. The said order
was challenged by the appellants through two Writ Petitions bearing Nos. 1272-P of 2024
and 1339-P of 2024. Both the writ petitions were heard and dismissed vide the consolidated
judgment announced on 14.3.2024 as well as the judgment prepared and signed on
25.3.2024. Against the said judgment, two petitions for leave to appeal i.e. C.P. No. 1328 of
2024 as well as [Link].1329 of 2024

were filed, which were fixed before the learned three member bench of this Court on
6.5.2024 in which leave was granted as well as it was referred to the Committee constituted
under section 4 of the Supreme Court (Practice and Procedure) Act, 2023 for constitution of
a larger bench to hear the appeals which were ordered to be fixed for hearing on
03.06.2024.

3. A larger bench of 13 members was constituted by the Committee and the matter was
heard by the learned 13 members bench on

various dates i.e. 03.06.2024, 04.06.2024, 24.06.2024, 25.06.2024, 27.06.2024, 01.07.2024,

02.07.2024 and the last hearing was on 09.7.2024. The short order was announced on
12.07.2024, the majority's order is reproduced:

"Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ.: For detailed
reasons to be recorded later and subject to

what is set out therein by way of amplification and/or explanation or otherwise, these
appeals are decided in the following terms:

1. The impugned judgment dated 25.03.2024 of the learned Full Bench of the High Court
is set aside to the extent it is or may be inconsistent with this Order or the detailed reasons.

2. The order of the Election Commission of Pakistan ("Commission") dated 01.03.2024

("Impugned Order") is declared to be ultra vires the Constitution, without lawful authority
and of no legal effect.
 3. The notifications (of various dates) whereby the persons respectively mentioned
therein (being the persons identified in the Commission's notification No.F.5(1)/2024-Cord.
dated 13.05.2024) have been declared to be returned candidates for reserved seats for
women and minorities in the National and Provincial Assemblies are declared to be ultra
vires the Constitution, without lawful authority and of no legal effect, and are quashed from
06.05.2024 onwards, being the date an

interim order was made by the Court in CPLA Nos. 1328-9

of 2024, the leave petitions out of which the instant appeals arise.

4. It is declared that the lack or denial of an election symbol does not in any manner
affect the constitutional and legal rights of a political party to participate in an election
(whether general or bye) and to field candidates and the Commission is under a
constitutional duty to act, and construe and apply all statutory provisions, accordingly.

5. It is declared that for the purposes, and within the meaning, of paragraphs (d) and (e)
of clause (6) of Article 51 ("Article 51 Provisions") and paragraph (c) of clause (3) of Article
106 ("Article 106 Provisions") of the Constitution, the Pakistan Tehreek e Insaf ("PTI") was
and is a political party, which secured or won (the two terms being interchangeable) general
seats in the National and Provincial Assemblies in the General Elections of 2024 as herein
after provided.

6. During the course of the hearing of the instant appeals, on 27.06.2024, learned
counsel for the Commission placed before the Court a list ("the List") of 80 returned
candidates for the National Assembly (now MNAs), setting out in tabular form particulars
relating to their election. Learned counsel made a categorical statement that the
Commission stood by the data so provided to the Court. In particular, the List contained
three columns marked as follows: (i) "Statement (on nomination form) given in declaration
and oath by the person nominated (i.e., 'I belong to')"; (ii) "Certificate of party affiliation
under Section 66 of the Elections Act, 2017"; and (iii) "Statutory Declaration/ affidavit
accompanying section 66 certificate".

7. In the peculiar facts and circumstances of the General Election of 2024, it is declared
that out of the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and
whose particulars are set out in Annex A to this Order) in respect of whom the Commission
has shown "PTI" in any one of the aforesaid columns in the List, were and are the returned
candidates whose seats were and have been secured by the PTI within the meaning, and for
purposes of, para 5 above in relation to the Article 51 Provisions.

8. In the peculiar facts and circumstances of the General Election of 2024, it is further
ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose
particulars are set out in Annex B to this Order) may, within 15 working days of this Order
file a statement duly signed and notarized stating that he or she contested the General
Election as a candidate of the political party specified therein. If any such statement(s) is/are
filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to
the political party concerned to file, within 15 working days, a confirmation that the
candidate contested the General Election as its candidate. A political party may in any case,
at any time after the filing of a statement as aforesaid, of its own motion file its
confirmation. If such a statement is filed, and is confirmed by the political party concerned,
then the seat secured by such candidate shall be forthwith deemed to be a seat secured by
that political party for the purposes of para 5 above in relation to the Article 51 Provisions.
The Commission shall also forthwith issue, and post on its website, a list of the retuned
candidates (now MNAs) and seats to which this para applies within 7 days after the last date
on which a political party may file its confirmation and shall simultaneously file a compliance
report in the Court.

9. For the purposes of para 5 of this Order in relation to the Article 51 Provisions, the
number of general seats secured by PTI shall be the total of the seats declared in terms of
para 7 and those, if any, to which para 8 applies. The PTI shall be entitled to reserved seats
for women and minorities in the National Assembly accordingly. PTI shall, within 15 working
days of this Order file its lists of candidates for the said reserved seats and the provisions of
the Elections Act, 2017 ("Act") (including in particular section 104) and the Elections Rules,
2017 ("Rules") shall be applied to such lists in such manner as gives effect to this Order in
full measure. The Commission shall, out of the reserved seats for women and minorities in
the National Assembly to which para 3 of this Order applies, notify as elected in terms of the
Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be,
to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras
7 and 8 of this Order.

10. The foregoing paras shall apply mutatis mutandis for purposes of the Article 106
Provisions in relation to PTI (as set out in para 5 herein above) for the reserved seats for
women and minorities in the Khyber Pakhtunkhwa, Punjab and Sindh Provincial Assemblies
to which para 3 of this Order applies. In case the Commission or PTI need any clarification or
order so as to give effect to this para in full measure, it shall forthwith apply to the Court by
making an appropriate application, which shall be put up before the Judges constituting the
majority in chambers for such orders and directions as may be deemed appropriate.

Annexure-A

(Names of Candidates Affiliated with the Pakistan Tehreek-e-Insaf

as per the list verified from the data provided by ECP1)

Sr. No. Number and Name of the Name of the Candidate

Constituency

1. NA-2 (Swat-I) Amjad Ali Khan

2. NA-3 (Swat-II) Saleem Rehman

3. NA-4 (Swat-III) Sohail Sultan

4. NA-6 (Lower Dir-I) Muhammad Bashir Khan

5. NA-7 (Lower Dir-II) Mehboob Shah

6. NA-9 (Malakand) Junaid Akbar

7. NA-17 (Abbottabad-II) Ali Khan Jadoon

8. NA-19 (Swabi-I) Asad Qaiser

9. NA-20 (Swabi-II) Shahram Khan

10. NA-21 (Mardan-I) Mujahid Ali

11. NA-24 (Charsadda-I) Anwar Taj

12. NA-25 (Charsadda-II) Fazal Muhammad Khan

13. NA-29 (Peshawar-II) Arbab Amir Ayub

14. NA-30 (Peshawar-III) Shandana Gulzar Khan

15. NA-31 (Peshawar-IV) Sher Ali Arbab

16. NA-32 (Peshawar-V) Asif Khan

17. NA-33 (Nowshera-I) Syed Shah Ahad Ali Shah

18. NA-38 (Karak) Shahid Ahmad

19. NA-39 (Bannu) Nasim Ali Shah

20. NA-41 (Lakki Marwat) Sher Afzal Khan

21. NA-83 (Sargodha-II) Usama Ahmed Mela

22. NA-84 (Sargodha-III) Shafqat Abbas

23. NA-95 (Faisalabad-I) Ali Afzal Sahi

24. NA-96 (Faisalabad-II) Rai Haider Ali Khan

25. NA-100 (Faisalabad-VI) Nisar Ahmed

26. NA- 101 (Faisalabad-VII) Rana Atif

27. NA-102 (Faisalabad-VIII) Changaze Ahmad Khan

28. NA-103 (Faisalabad-IX) Muhammad Ali Sarfraz

29. NA-115 (Sheikhupura-III) Khurram Shahzad Virk

 30. NA-122 (Lahore-VI) Sardar Muhammad Latif Khan Khosa

31. NA-143 (Sahiwal-III) Rai Hassan Nawaz Khan

32. NA-149 (Multan-II) Malik Muhammad Aamir Dogar

33. NA-150 (Multan-III) Makhdoom Zain Hussain Qureshi

34. NA-154 (Lodhran-I) Rana Muhammad Faraz Noon

35. NA-171 (Rahim Yar Khan-III) Mumtaz Mustafa

36. NA-179 (Kot Addu-I) Muhammad Shabbir Ali Qureshi

37. NA-181 (Layyah-I) Umber Majeed

38. NA-182 (Layyah-II) Awais Haider Jakhar

39. NA-185 (D.G. Khan-II) Zartaj Gul

Annexure-B

(Names of Independent Candidates)

Sr. No. Number and Name of the Name of the Candidate

Constituency

1. NA-1 (Chitral Upper-cum-Chitral Abdul Latif

Lower)

2. NA-5 (Upper Dir) Sahibzada Sibghatullah

3. NA-13 (Battagram) Muhammad Nawaz Khan

4. NA-22 (Mardan-II) Muhammad Atif

5. NA-23 (Mardan-III) Ali Muhammad

6. NA-26 (Mohmand) Sajid Khan

7. NA-27 (Khyber) Muhammad Iqbal Khan

8. NA-34 (Nowshera-II) Zulfiqar Ali

9. NA-35 (Kohat) Shehryar Afridi

10. NA-36 (Hangu-cum-Orakzai) Yousaf Khan

11. NA-42 (South Waziristan Upper- Zubair Khan

cum-South Waziristan Lower)
12. NA-66 (Wazirabad) Mohammad Ahmed Chattha

13. NA-67 (Hafizabad) Aniqa Mehdi

14. NA-68 (Mandi Bahauddin-I) Haji Imtiaz Ahmed Choudhry

15. NA-78 (Gujranwala-II) Muhammad Mobeen Arif

16. NA-79 (Gujranwala-III) Ihsan Ullah Virk

17. NA-181 (Gujranwala-V) Ch. Bilal Ejaz

18. NA-86 (Sargodha-V) Muhammad Miqdad Ali Khan

19. NA-89 (Mianwali-I) Muhammad Jamal Ahsan Khan

20. NA-90 (Mianwali-II) Umair Khan Niazi

21. NA-91 (Bhakkar-I) M. Sana Ullah Khan Mastikhel

22. NA-93 (Chiniot-I) Ghulam Muhammad

23. NA-97 (Faisalabad-III) Muhammad Saad Ullah

24. NA-99 (Faisalabad-V) Umar Farooq

25. NA-105 (Toba Tek Singh-I) Usama Hamza

26. NA-107 (Toba Tek Singh-III) Mohammad Riaz Khan

27. NA-108 (Jhang-I) Muhammad Mahbob Sultan

28. NA-109 (Jhang-II) Waqas Akram

29. NA-110 (Jhang-III) Muhammad Ameer Sultan

30. NA-111 (Nankana Sahib-I) Muhammad Arshad Sahi

31. NA-116 (Sheikhupura-IV) Khurram Munawar Manj

32. NA-129 (Lahore-XIII) Mian Muhammad Azhar

33. NA-133 (Kasur-III) Azim Uddin Zahid

34. NA-137 (Okara-III) Syed Raza Ali Gillani

35. NA-156 (Vehari-I) Ayesha Nazir

36. NA-170 (Rahim Yar Khan-II) Mian Ghous Muhammad

37. NA-172 (Rahim Yar Khan-IV) Javaid Iqbal

38. NA-175 (Muzaffargarh-I) Jamshaid Ahmad

 39. NA-177 (Muzaffargarh-III) Muhammad Moazzam Ali Khan

40. NA-180 (Kot Addu-II) Fiaz Hussain

41. NA-183 (Taunsa) Khawaja Sheraz Mehmood

4. Therefore, the majority's order, which became the Order of the Court was noted as
under:

Order of the Court

By a majority of 8 (comprising Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali
Mazhar, Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan
Saadat Khan, JJ) the instant appeals are decided in terms of the short order of the majority
of even date (and the other petitions including leave petitions and [Link] are decided
accordingly).

I agree with the short order authored by Justice Jamal Khan Mandokhail.

Justice Qazi Faez Isa, CJ.

Justice Syed Mansoor Ali Shah, J.

Justice Munib Akhtar, J.

With utmost respect I differ. My short order is appended herewith.

Justice Yahya Afridi, J.

I have attached my separate short order dismissing all the appeals, petitions and
applications and uphold the impugned judgment of the Peshawar H.C.

Justice Amin-ud-Din Khan, J.

I have appended my separate order.

Justice Jamal Khan Mandokhail, J.

Justice Muhammad Ali Mazhar, J.

Justice Ayesha A. Malik, J.

Justice Athar Minallah, J.

Justice Syed Hasan Azhar Rizvi, J.

Justice Shahid Waheed, J.

Justice Irfan Saadat Khan, J.

I agree with the short order passed by J. Amin-ud-Din Khan.

Justice Naeem Akhtar Afghan, J.

5. The detailed majority judgment has not yet come to surface, despite the expiry of the 15
days mentioned therein. The delay may render infructuous, the review petition filed against
the order of the court. Therefore, on the basis of the short order we have been compelled to
record our findings, which are in two parts. The first part states why we are unable to agree
with the majority decision and the second part states our decision on the appeals based on
the merits of the case.

6. The admitted position is that the subject matter in the instant litigation before this Court
was petitions filed under Article 185(3) of the Constitution against the judgment of the five
member bench of the Peshawar High Court whereby writ petitions filed by the appellants
were dismissed. Leave was granted by this Court vide order dated 6.5.2024, which is
reproduced:

"Learned counsel for the petitioners submits that allocation of the reserved seats for
women and non-Muslims to the political parties other than the petitioner, Sunni Ittehad
Council ("SIC"), is in violation of Article 51(6) (d) & (e) of the Constitution of the Islamic
Republic of Pakistan ("Constitution") which provides for proportional representation system
on the basis of total number of general seats secured by each political party from the
Province concerned in the National Assembly. Once a political party has been allocated the
reserved seats on the basis of proportional representation system, the remaining seats
cannot be re-allocated to the same political party. As per Letter issued by the Election
Commission of Pakistan dated 25.04.2024, he submits, it has been acknowledged that SIC is
a parliamentary party having 82 general seats in the National Assembly. Therefore, SIC is
entitled to reserved seats as per the proportional representation system in terms of Articles
51(6) (d) & (e) and 106(2) (c) (sic) of the Constitution.

2. On the other hand, Mr. Sikandar Bashir Mohmand, learned counsel for the Election
Commission of Pakistan ("ECP"), submits that according to Articles 51 and 106 of the
Constitution the reserved seats have to be allocated on the proportional representation
system only to those political parties who have contested the general elections and won
atleast one seat in the said elections. Since SIC did not contest the elections and did not win
even a single seat in the general elections, it cannot be considered as a political party in
terms of Articles 51(6) (d) and (e) and 106(2)(c) (sic) of the Constitution, for the purpose of
allocating the reserved seats. Learned Attorney-General for Pakistan ("AGP") supports the
contentions of the learned counsel for the ECP. Both the learned counsel for ECP and the
learned AGP frankly concede that this is a case of first impression involving questions of
constitutional law that have not been addressed by the Court earlier.

3. The above questions of allocation of reserved seats in the National and Provincial
Assemblies touch upon the foundational constitutional concept of a parliamentary
democracy that the voice of the electorate is truly reflected in the composition of the
assemblies. Democratic mandate necessitates that the allocation of reserved seats enhances
the representativeness of the electorate in the assemblies and upholds the principles of
fairness and transparency in the electoral process. It is paramount to prioritize the integrity
of the elections so that the Parliament remains a true reflection of the will of the people.

4. Therefore, leave to appeal is granted to consider, amongst others, the said questions.
The appeals are to be posted for hearing on 03.06.2024. The appeal arising out of these
petitions will be heard on the basis of available record; however, both sides are at liberty to
file any additional documents, which were part of the record before the fora below but have
not been filed with instant petitions.

5. Notices under Order XXVII-A, C.P.C. be issued to the learned AGP as well as the
Advocates-General of the Provinces.

C.M.A. 2920 of 2024:

6. Notice for the same date. In the meanwhile, operation of the impugned judgment of
the Peshawar High Court dated 25.03.2024, as well as, the order of the Election Commission
of Pakistan dated 01.03.2024 is suspended. It is, however, clarified that this interim order
relates to the disputed seats only, i.e.,

the reserved seats allocated over and above the initially

allocated reserved seats to the political parties. It is also

clarified that this order is to operate prospectively, w.e.f., from today.

C.M.A. 3554/2024:

7. Notice. To be heard along with CPLA No.1328/2024 on 03.06.2024.

8. Since the questions under consideration require constitutional interpretation, the

matter be placed before the Committee

under Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 for constitution of
a larger bench to hear the

appeals."

7. The independent returned candidates joined the appellant, and their joining was duly
processed, accepted and notified by the ECP with regard to the National Assembly as well as
the three Provincial Assemblies. None has ever disputed the joining to SIC of the 39 and 41
persons mentioned in Annexures A & B of the majority short order within three days, as
prescribed by the Constitution. Notifications as the returned independent candidates in the
general elections were issued and their submitting affidavit and requisite documents etc. for
joining SIC. The other contesting political parties, who were parties before the ECP as well as
the High Court and before this Court also did not dispute their joining SIC. SIC does not
dispute their joining SIC. The said persons have also never disputed their joining the SIC.
Furthermore, PTI was not a party to these proceedings starting from the ECP, then before
the High Court nor before this Court. Even at the time of the announcement of the short
order neither any person from PTI nor PTI joined the proceedings. Not a single one of said 80
persons, mentioned in the short order, were parties before this Court collectively or in their
individual capacity. They were never heard. The claim of the SIC before the ECP was that SIC
was entitled to the reserved seats on the basis of the said persons joining SIC.

8. To appreciate the arguments advanced before the Court and for giving clear picture and
understanding to a person reading this judgment, it will be appropriate that most relevant
portions of Articles of the Constitution i.e. Article 51(6) (d) & (e) and Article 106 and section
104 of the Elections Act, 2017 are reproduced:

"Article 51

(1). --------

(2). --------

(3). --------

(4). --------

(5). --------

(6) For the purpose of election to the National

Assembly,--

(a) --------

(b) --------

(c) --------

(d) members to the seats reserved for women which are allocated to a Province
under clause (3) shall be elected in accordance with law through proportional
representation system of political parties' lists of candidates on the basis of total number of
general seats secured by each political party from the Province concerned in the National
Assembly:

Provided that for the purpose of this paragraph the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates; and

(e) members to the seats reserved for non-Muslims shall be elected in accordance with
law through proportional representation system of political parties' lists of candidates on the
basis of total number of general seats won by each political party in the National Assembly:

Provided that for the purpose of this paragraph the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates."

"Article 106

(1) -------

(2) -------

(3) For the purpose of election to a Provincial Assembly,--

(a) -------

(b) -------

(c) the members to fill seats reserved for women and non-Muslims allocated to a
Province under clause (1) shall be elected in accordance with law through proportional
representation system of political parties' lists of candidates on the basis of the total number
of general seats secured by each political party in the Provincial Assembly:

Provided that for the purpose of this sub-clause, the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates."

and

"Section 104. Party lists for reserved seats.-(1) For the purpose of election to seats
reserved for women and non-Muslims in an Assembly, the political parties contesting
election for such seats shall, within the period fixed by the Commission for submission of
nomination papers, file separate lists of their candidates in order to priority for seats
reserved for women and non-Muslims with the Commission or, as it may direct, with the
Provincial Election Commissioner or other authorized officer of the Commission, who shall
forthwith cause such lists to be published for information of the public:

Provided that the list submitted by a political party shall not be subject to change or
alteration either in the order of priority or through addition of new names in the list or
omission of any name after expiry of the date of submission of nomination papers.

(2). The parties' lists referred to in subsection (1) may contain as many names of
additional candidates as a political party may deem necessary for contesting seats reserved
for women and non-Muslims, to provide for any disqualification of candidates during
scrutiny of nomination papers or for filling of any vacant seats during the term of an
Assembly.

(3). A candidate to a seat reserved for women or non-Muslims shall file the nomination
papers on the Form on or before the last date fixed for filing of nomination papers for the
election and the nomination papers shall, as nearly as possible, be scrutinized in the same
manner as nomination papers of candidates on general seats are scrutinized under section
62.

(4). If, at any time, the party list is exhausted, the political party may submit a name for
any vacancy which may occur thereafter and the provisions of subsections (1), (2) and (3)
shall, as nearly as possible, apply to fill such vacancy.

(5). Where a seat reserved for women or non-Muslims in an Assembly falls vacant as a
result of death, resignation or disqualification of a Member, it shall be filled in by the next
person in order of precedence from the party's list of candidates submitted to the
Commission under subsection (1).

(6). Before notifying the name of the next person in order of priority from the party list,
such person shall submit a declaration on oath that since the filing of his nomination paper,
he has not become subject to any disqualification contained in Article 63.

(7). A candidate contesting election on a seat reserved for women or non-Muslims shall,
along with the nomination papers and its annexures, submit to the Returning Officer
appointed by the Commission in this behalf ----

(a). a copy of the party list of the candidate's political party for such seats;

(b). declarations and statements in support of the nomination; and

(c). proof of deposit of the fee required for filing nomination papers.

(8). Where there is equality of share on a reserved seat between two or more political
parties, the Returning Officer shall declare the returned candidate by drawing of lots."

9. During the hearing of the appeals before this Court on the above-said eight dates of
hearing by the thirteen member Bench of this Court, most of the time was consumed by the
queries made by various members of the Bench to the learned counsel for the appellant as
well as to Mr. Salman Akram Raja, who moved C.M.A. No. 3554 of 2024 on behalf of Kanwal
Shauzab for permission to file CPLA, and in paragraph No. 2 of C.P.L.A. [Link] of 2024 it was
pleaded that:

"the petitioner expected to be considered, and to be nominated as candidate of the

Sunni Ittehad Council for seats reserved for women in the Khyber Pakhtunkhwa Provincial
Assembly as well as the National Assembly of Pakistan."

She also sought leave against the judgment of the five member bench

of the Peshawar High Court (wrongly mentioned as Division Bench).

On query by some members of the Bench, whether the reserved seats can be given to PTI in
the peculiar circumstances of this case, none of the counsels agreed to this, though the
suggestion was made by some of the members of the Bench repeatedly to the learned
counsel for the appellant as well as to Mr. Salman Akram Raja. I recall that Mr. Salman Akram
Raja replied that he will not press that the seats be given to PTI, but the Court has the power
to do so. In these circumstances, we have thoroughly considered the hurdles before us
which forced us to disagree with the majority decision and these are listed hereunder:

i. PTI was not before this Court nor before the High Court nor even before the ECP;

ii. The joining of 80 independent returned candidates to SIC was never disputed by
anyone;

iii. The said 39 plus 41 persons as mentioned in the majority's short order did not come
before this Court nor were they heard. The majority short order decides about their rights or
lack thereof without their consent or even hearing them. Their joining of SIC has been
undone without such prayer of anyone before this Court, or before the High Court.

iv. Not only the appeals filed by the SIC have been dismissed by the majority order, as no
relief has been granted to SIC but independent members who joined the SIC have also been
snatched from the SIC and that too without hearing the above said 39 plus 41 persons.

v. Unless Articles 51, 106 and 63 of Constitution are suspended and in their place new
articles in consonance with the relief granted through the majority order are inserted in the
Constitution, the relief which has been granted to the PTI cannot be granted.

vi. Article 175 of the Constitution has been ignored.

vii. The constitutional limits of jurisdiction under Article 185 of the Constitution have been
ignored.

viii. All substantive as well as procedural law with regard to parties to lis have been ignored.

ix. The relief granted to PTI will be self-created and has been carved out relief by the
majority, as none has claimed this relief in these proceedings.

x. Not only SIC has not been granted relief claimed by it but all those who have joined it
have been taken off and for the rest of the tenure of the National as well as Provincial
assemblies SIC has been kicked out from the assemblies.

xi. For a specific date i.e. 6.5.2024 the notification of returned candidates for special seats
has been quashed, however before that date their notification and acts are held to be valid.
It is incomprehensible how can this be done, as it is without any backing of Constitution.

xii. The majority judgment virtually declares that said 80 persons are not honest and ameen
in accordance with Article 62 (1) (f) of the Constitution.

xiii. All the returned candidates for the reserved seats of other parties who have been
notified were not issued notices and provided an opportunity of hearing.

xiv. 41 candidates mentioned in Annexure-B have been given the choice of joining any other
Political Party.
xv. The issue was simply the matter of post general elections directly related to the
reserved seats for both women and non-Muslims on the basis of proportional
representation system of political parties' lists of candidates under Articles 51 and 106 of the
Constitution. The majority's short order in effect created a new parliamentary party in the
National Assembly and three Provincial Assemblies and since this related to the pre election
process, it is clearly and unequivocally not an issue before this Court. In the process of the
general elections all events are scheduled and time-bound and the same cannot be
reversed.

xvi. The judgment of the full Bench of the Peshawar High Court has been set aside by the
majority's short order to the extent, that it is or may be inconsistent of the majority's short
order. This is incomprehensible as none of the rights which have now been created in favour
of PTI by the majority's short order were in issue before the High Court, nor had been
adjudicated upon. The High Court had simply dismissed SIC's claim to the reserved seats,
which was the lis before the High Court.

In conclusion, it is clear that the superstructure created by the majority's short order,
does not in any way come within the ambit of the jurisdiction vested in this Court or in the
Constitution.

10. Vires of section 104 of the Elections Act, 2017 was initially challenged before the High
Court. Even in the pleadings before this Court the vires was challenged, but at the time of
the hearing by the thirteen member bench, the learned counsel for the appellant
categorically stated more than once before the Court and when the court inquired from him
whether the appellants still press their challenge to the vires of section 104 of the Act and
the learned counsel categorically stated that he does not challenge the vires of section 104
and he will instead submit his arguments with regard to the interpretation of section 104 of
the Elections Act, 2017. Unless Section 104 as well as the relevant rules are also suspended
and new sections/rules are substituted, the majority order cannot be passed.

11. We are always conscious of our jurisdiction before hearing a matter fixed before us
whether as a Judge of the High Court or that of this Court. In the instant matter, we are
conscious that we are sitting in a jurisdiction vested in this Court under Article 185 of the
Constitution and can exercise jurisdiction under Article 175 of the Constitution, but cannot
exercise any other jurisdiction as this is not conferred upon this Court, therefore, it cannot
be exercised. In this matter only the appellate jurisdiction of the Court was invoked by filing
petitions under Article 185(3) of the Constitution whereafter leave was granted. The matters
alien to the jurisdiction vested in this Court cannot be considered nor decided by this Court.
The majority judgment ignores all rules of procedure, substantive provisions of law and the
Constitution. Relief cannot be granted to the PTI as PTI was not before the Court nor tried to
become a party before the ECP, High Court and before this Court nor was claiming the
reserved seats, which were in issue in the instant litigation. If the said 39 plus 41 persons
take any step on the basis of this judgment which is not in accordance with the Constitution
they may lose their seats as returned candidates on the basis of violation of the
Constitution. We are also of the firm view that any other constitutional body cannot be
asked to take any steps or decisions which are not permissible under the Constitution. If the
said 80 persons change their stance on the basis of the majority judgment, they will be guilty
of violating their oath, which is provided under Article 65 (Third Schedule), being the Oath
for the members of the National Assembly. The first paragraph is relevant, which is
reproduced and which is similar to the Provincial Assembly oath with some modification:

"That, as a member of the National Assembly (or Senate), I will perform my functions
honestly, to the best of my ability, faithfully, in accordance with the Constitution of the
Islamic Republic of Pakistan, and the law, and the rules of the Assembly (or Senate), and
always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of
Pakistan."

(bold and underlying by us)

12. For creating and carving out relief in these proceedings for PTI, we would have to travel
beyond the jurisdiction conferred by Articles 175 and 185 of the Constitution and would also
have to suspend Articles 51, 106 and 63 of the Constitution and section 104 of the Elections
Act, 2017 along with the relevant rules. We would also have to insert instead of Articles 51,
106 and section 104 (mentioned supra). Such articles and sections therein in substitution
and in consonance with the relief granted through the majority judgment. Previously there
was a term used which was "reading in to the Constitution" or "reading down the
Constitution" but now a new phrase has been introduced that of "inserting new Articles in
consonance with the relief to be granted in the peculiar circumstances of the case" in the
Constitution. We do not have the courage to go to such an extent to give relief to a party
who is not before the Court or who did not join the proceedings and pray for such relief. All
the rules of procedures of proceedings before the Supreme Court and the Supreme Court
Rules, 1980 would also have to be ignored as neither any party before the Court asked in
writing nor orally for the relief which has been granted to PTI.

13. Regarding joining of 80 persons no one has denied that they have joined SIC, ECP does
not deny this nor any other contesting party denies it. Even PTI does not deny this, who then
are we to undo all these things and reverse the same and create a new process plus create a
new and arbitrary time limit for joining any party of their choice by disregarding the
mandate of the Constitution. In our view neither Articles 62(2), 63 and 63-A have been
suspended nor can be suspended, therefore, any affidavit contrary to the provisions of the
affidavits already filed will entail the penal consequences of non-seating such members of
National Assembly and Provincial Assemblies if he/she files a fresh affidavit in contradiction
to his/her previous affidavit and joins any other party. Any order of the Court which is not in
consonance with the constitutional provisions is not binding upon any other constitutional
organ of the State.
14. Now we proceed to record some more facts, arguments and our reasons for dismissing
the appeals, petitions and the applications.

15. We heard thorough arguments of learned counsel for the appellants Mr. Asad Jan
Durrani, ASC KPK along with Malik Khawas, Assistant Law Officer, KPK Assembly, Mr. Salman
Akram Raja, ASC (who moved C.M.A. No. 3554 of 2024 in C.P. No. NIL of 2024), Mr.
Makhdoom Ali Khan, ASC, who represented respondent Nos.15 to 19, 21 and 22, who were
the returned candidates for the reserved seats belonging to PML(N), JUI(P), PPPP and Mr.
Sikandar Bashir Mohmand, learned counsel for ECP. Learned counsel for JUI adopted the
arguments of learned counsel for ECP. Learned counsel for PML(N), [Link] Shaukat
adopted the arguments of Mr. Makhdoom Ali Khan and, learned counsel for respondent
No.20 adopted the arguments of ECP. Maulvi Iqbal Haider also adopted the arguments of
learned counsel for ECP. We have also heard the learned Attorney- General for Pakistan Mr.
Mansoor Usman Awan, who submitted the formula for entitlement of reserved seats
proportionately for the Political Parties with reference to his written submissions submitted
through CMA No.5911 of 2024. Learned counsel for the parties produced record through
CMAs as well as their written submissions and the case law also. There were four major
counsels/set of counsels who pleaded the case before this Court. On one side there was
counsel for the appellants who gets support from the learned Advocate General, KPK as well
as learned Mr. Salman Akram Raja. On the other side was the learned Attorney-General as
well as the learned counsel for the ECP and learned Mr. Makhdoom Ali Khan, representing
the returned candidates for the reserved seats of various Political Parties. The appellant side
attacked the order of the ECP as well as that of the learned five member Bench of the
Peshawar High Court, and argued that the reserved seats for women and non-Muslims in
accordance with the proportionate representation are the right of SIC. Whereas the learned
Attorney- General for Pakistan as well as the learned counsel for ECP and the learned Mr.
Makhdoom Ali Khan have supported the decision of the ECP to be absolutely correct and in
accordance with the Constitution and the law. Learned Mr. Makhdoom Ali Khan has argued
with reference to Section 57 of the Elections Act, 2017 as well as its section 206 and Rule 94
of the Election Rules and Article 226 of the Constitution. Rule 94 with regard to powers of
the Commission to declare seats won by each Political Party and supported the judgment of
the High Court and prayed for dismissal of the appeals.

16. The premise of the arguments of learned counsel for the appellants seems to be on the
questions, mainly question No.3 and question No.4 as framed by the learned counsel for the
appellant submitted through CMA No. 5273 of 2024, Part 2, which are reproduced:

"3. Whether any Political Party could be allocated reserved seats disproportionate to
their representation based on the total number of general seats secured by them?

4. Whether there is constitutional absence or silence about a situation, in which there

are left over reserved seats which cannot be allocated to any party either because of
disentitlement or disproportionality? If so, how can this be resolved?"
The arguments of the learned counsel for the appellant mainly revolved upon these two
questions and the stance of the learned counsel was that on the basis of interpretation, as
per the understanding of the learned counsel for the appellant, when a Political Party is a
listed party in the ECP even if that party has not participated in the General Elections and
after the notification of the independent returned candidates the joining of independent
candidates makes the political party eligible for the reserved seats for women and non-
Muslims, we are afraid that this interpretation is absolutely against the wording of Article 51
and of Article 106 of the Constitution. By interpretation no one can read into nor read down
the Constitution. It is clearly mentioned that the political party which won in the General
Elections and the independent candidates joining such political party can enhance the
proportion of such party. We are clear in our mind that if an independent candidate joins a
party, though it may be listed as a political party with ECP, does not make that party entitled
for the reserved seats. The joining of independent candidates only enhances the proportion
of right in the reserved seats of that party if that party has won seats. By the joining of
independent candidates with any political party does not create a right in favour of that
political party to become eligible for reserved seats only on the basis of the joining of
independent candidates. Question Nos.3 and 4 noted supra are absolutely misconceived.
There is no question of disproportionate allocation of reserved seats as the seats are for the
political parties entitled to the same. A political party which is not entitled for the same
cannot claim proportionate allocation in the reserved seats, therefore, there is no question
of disproportionate allocation of seats to political parties not entitled for the seats, in
accordance with the formula of distribution of seats presented by the learned Attorney-
General. The seats were given to the political parties which were entitled for the same. The
formula of the distribution has not been specifically challenged by the appellants. If the
appellants are not entitled to the special seats then the formula presented by the learned
Attorney-General for Pakistan remains undisputed. Even the majority judgment of this Court
as well as our other learned brothers are unanimous on the point that SIC is not entitled to
the reserved seats.

17. Mr. Faisal Siddiqi further argued on the basis of what he stated was the doctrine of
progressive interpretation of the Constitution and on the basis of said interpretation has
tried to analyze Article 51(6)(d)&(e) and Article 106(3) (c) of the Constitution as well as
section 104 of the Elections Act, 2017 and rules 92 and 96 of the Election Rules, 2017. We
absolutely do not agree with the understanding of learned counsel for the appellants with
regard to the said doctrine of progressive interpretation of the Constitution and of the
provisions of Elections Act, 2017 and the Rules as his understanding is absolutely
misconceived, that there is a constitutional absence or silence about the situation or with
regard to disentitlement or disproportionately. There is absolutely no silence about the
situation in the Constitution. The Constitution is absolutely clear and which has rightly been
held so by the learned five member Bench of the Peshawar High Court through the
impugned judgment.
18. As we have noted, by the majority's order virtually all the persons who joined the SIC
and their joining of SIC has been undone. Further positions in the process of working of the
proportional representation system of political parties is affected through the majority's
order. For instance, at [Link].39 of Annexure-A Ms. Zartaj Gul from NA-185 ([Link]-II) was
appointed by the SIC as the Party Leader of SIC in the National Assembly, and her
notification was

issued by the Secretary General of the Assembly bearing No.F.1(1)/ 2024-N.O, Islamabad
dated 23 June 2024, which was produced by the learned counsel for the appellants in CMA
No. 5944 at Page 7. By the majority judgment her position and the other positions given to
the SIC also go.

19. As we have noted in the start of this order that the matter of the allocation of reserved
seats for women and non-Muslims on the basis of proportional representation system of
political parties arose before the ECP when the appellant informed the ECP that the
independent candidates from National Assembly as well as Provincial Assemblies have
joined them, and by stating that they did not participate in the General Elections as a
political party, even though SIC was a registered political party in the List of Political Parties
maintained by the ECP. The valid joining of the independent members was recognized by the
ECP as well as by the other contesting parties who also joined the proceedings, when all the
concerned matters were fixed for hearing before the ECP comprising of the entire
Commission, of the Chairman and the four Members. Para-1 of the order of ECP dated
1.3.2024 is reproduced to correctly appreciate the undisputed factual position:

"Brief facts of the matter are that all the above mentioned petitioners have filed
petitions before the Commission in respect of the allocation of reserved seats for women
and non-Muslims in the National and Provincial Assemblies constituted as a result of
General Elections 2024, held on 08.02.2024. The Commission issued notification in which
the independent candidates were notified as Returned Candidates in the National and
Provincial Assemblies. Subsequent to the notifications some of the independent candidates
joined Political Party Sunni Ittehad Council (SIC) and their affidavits were forwarded to the
Commission by the said Political Party in respect of

National Assembly, Provincial Assembly Punjab and Provincial Assembly KP and Provincial
Assembly of Sindh. Sunni Ittehad Council requested for allocation of share in the seats
reserved for women and non-Muslim in the National Assembly and three Provincial
Assemblies mentioned above. Different applications were filed by the major Political Parties
including MQM-P, PPPP and PML(N) and also some individuals for allocation of reserved
seats as per their share in the Assemblies. The petitioners also agitated that Sunni Ittehad
Council is not eligible to obtain the quota/share in reserved seats for women and non-
Muslim. Matters were placed in the meetings of the Commission and decided to fix the
same for hearing before full Commission."
20. The ECP on the basis of admitted facts and in accordance with Article 51(6) (d) and
Article 106(3) allocated seats in accordance with law through the proportional
representation system of political parties' lists of candidates on the basis of the total number
of seats secured by each political party. Admittedly, the SIC did not participate in the
elections as a political party and, therefore, it did not file any list of candidates in accordance
with section 104 of the Elections Act, 2017. None of the parties before the court or anyone
else disputed the election program issued by the ECP for the elections held on 8.2.2024.
Learned counsel for the SIC wants to take benefit of the proviso to Clause (d) of sub-clause
(6) of Article 51 that the interpretation that even when a party has not participated in the
elections and has not won a single seat, if the independent candidates join it then such party
is entitled to the reserved seats for women and non-Muslims, we are afraid that by no
stretch of the imagination this interpretation of the proviso can be as learned counsel for the
appellants wants the interpretation to be. The proviso only enables adding to the seats won
by a political party in the elections as is clearly mentioned, that the total number of general
seats won by a political party shall include the independent returned candidate or
candidates who may duly join such political party. Such political party means a party which
has won seats and is in parliament and not a party who has not participated in the elections
and filed not a single nomination paper by any candidate of the said party. Even if all the
independent candidates join the said party they would

not be entitled to reserved seats. In this view of the matter, the view taken by the ECP as
well as by the learned five member bench of the Peshawar High Court is absolutely correct
and in accordance with the Constitution. Even none of us i.e. thirteen members, has given
relief to SIC who challenged the judgment of the Peshawar High Court, claim of the SIC has
been discarded including the majority judgment.

21. In view of what has been discussed above, the learned High Court had rightly dismissed
the writ petitions filed by the appellants, and the appeals are liable to be dismissed as there
is no defect in the impugned judgment. These are the detailed reasons for dismissing the
appeals. In the connected CPs leave has been sought against the judgment passed by the
Peshawar High Court, however, as the

appeals have been dismissed on merits, therefore, there is no need to further dilate upon
the said CPs and the CMAs and the same are also dismissed.

22. These are the reasons of our short order dated 12.7.2024 which is also reproduced:

"For reasons to be recorded later, we dismiss the appeals, petitions as well as CMAs and
the judgment of the Peshawar High Court is upheld."

Sd/-

Judge

Sd/-
 Judge

3rd August, 2024

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

In Chambers:*

Justice Syed Mansoor Ali Shah

Justice Munib Akhtar

Justice Muhammad Ali Mazhar

Justice Ayesha A. Malik

Justice Athar Minallah

Justice Syed Hasan Azhar Rizvi

Justice Shahid Waheed

Justice Irfan Saadat Khan

C.M.A. No. 7540 of 2024 in [Link]. 333 and 334 of 2024 etc.

(Filed on behalf of ECP, seeking guidance on certain legal and factual issues)

AND

C.M.A. No. 8139 of 2024 in [Link]. 333 and 334 of 2024 etc.

(Reply to the CMA 7540/24 on behalf of PTI)

Sunni Ittehad Council through its Chairman,

Faisalabad and another .. Appellants

Versus

Election Commission of Pakistan through its

Secretary, Islamabad and others ... Respondents

ORDER

Through C.M.A. 7540/2024, and in terms of the short order dated 12.07.2024 whereby
these appeals were decided by majority ("Short Order") the Election Commission of Pakistan
("Commission") purports to seek guidance on the point that "[i]n absence of a valid
organizational structure of Pakistan Tehreek-i-Insaf (PTI), who will confirm the political
affiliation of the returned candidates (MNAs and MPAs) on behalf of PTI, who have filed their
statements in light of the Supreme Court Order [dated 12 July 2024]." We may note that
other than a copy of the Short Order the application is bereft of any other documentation.

2. In reply to the above application, the PTI has filed C.M.A. 8139/2024, to which have
been annexed a number of documents, including correspondence between the PTI and the
Commission. We have considered the material that has been placed before us.

3. By way of brief recapitulation, in paragraphs 4 and 5 of the Short Order it has been
categorically declared that the lack or denial of an election symbol does not in any manner
affect the constitutional and legal rights of a political party to participate in an election
(whether general or bye) and to field candidates, and that for the purposes, and within the
meaning, of paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3)
of Article 106 of the Constitution of the Islamic Republic of Pakistan, PTI was and is a political
party, which secured or won (the two terms being interchangeable) general seats in the
National and Provincial Assemblies in the General Elections of 2024 as provided in that
Order. These paragraphs, and the preceding paragraph 3 of the Short Order, sound on the
constitutional plane, being the proper interpretation and understanding of the relevant
constitutional provisions. The other paragraphs of the Short Order, including in particular
paragraphs 8 and 10, are consequential upon what has been held and declared in the
paragraphs just noted, and flow and emanate from, and give effect to, constitutional
conclusions. All of these

points will be explicated in the detailed reasons for the decision of the majority (i.e., the
Short Order), which is the binding judgment of the Court.

4. Turning now to the specific clarification purportedly sought, the PTI in its reply has
annexed a number of notices issued by the Commission to the PTI through Barrister Gohar
Ali Khan, in which it has itself identified the latter as the Chairman of PTI. Furthermore, the
certifications required to be issued by a political party (here the PTI) and filed with the
Commission in terms of paragraphs 8 and 10 of the Short Order have, as per the record
placed before us in relation to the returned candidates (now respectively MNAs and MPAs)
in the National and the Sindh, Punjab and Khyber Pakhtunkhwa Provincial Assemblies, been
issued under the signatures of Barrister Gohar Ali Khan and Mr. Omar Ayub Khan, who are
identified therein as being, respectively, the Chairman and Secretary General of the PTI.
These certifications are dated 18.07.2024, 24.07.2024 and 25.07.2024 and list, in each case,
the particulars of the relevant returned candidate (now MNA or MPA as the case may be)
and in particular the dates on which the declaration required of the candidate (again, in
terms of paragraphs 8 and 10 of the Short Order) was filed with the Commission. These
dates obviously all precede the respective dates of certification.

5. Putting together the record placed before us, and considering the same in the light of
the Short Order, leaves in little doubt that the clarification sought by the Commission in
terms of the CMA 7540/2024 is nothing more than a contrived device and the adoption of
dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the
Court. This cannot be countenanced. Even on the application of elementary principles of law,
the application filed by the Commission is misconceived. Having itself recognized Barrister
Gohar Ali Khan as the Chairman of PTI, the Commission cannot now turn around and
purport to seek guidance from the Court with regard to how the certifications are to be
dealt with. The Commission cannot approbate and reprobate, taking whatever (shifting)
stance as it desires and as may seem to suit its immediate purposes for the moment.
Furthermore, the Commission, even if one were to consider the application in the most
sympathetic light, has apparently forgotten the well known de facto doctrine or rule, in
terms of which the acts of a person who holds an office are protected even if there may be
(and no such conclusion is reached here in relation to the PTI) any issue with the position de
jure. It sufficed and the Commission was duty bound in terms of the Constitution to keep in
mind that the admitted position (as stated before the Court during the hearing of the
appeals) is that the PTI was, and is, an enlisted political party. This position was not only
accepted and relied upon by us (eight Judges) but also by our three learned colleagues in
minority (Hon'ble the Chief Justice, Justice Yahya Afridi and Justice Jamal Khan Mandokhail).
Their lordship appear to have also accepted the validity of the party certificates (party
tickets) issued by Barrister Gohar Ali Khan and thus his capacity to act for PTI as its
Chairman. Furthermore, having itself issued notices to the PTI through Barrister Gohar Ali
Khan as its Chairman, the Commission gave recognition to both the

party and the office holder. That sufficed absolutely for purposes of the Short Order. It would
be completely illogical to assume that a political party, a juristic person, is fully functional yet
there are no natural persons who are either de facto or de jure performing its functions or
running its affairs. Saying (as the Commission now in effect does through C.M.A. 7540/2024)
that a political party is an enlisted political party, fully functional for the purposes of its
formation, yet there is no one that can perform its functions and run its affairs, amounts to
blowing hot and cold in the same breath or, as noted, approbating and reprobating one and
the same fact. There could have been no conceivable doubt that the certifications referred
to above were correct and valid in terms of the Short Order and the continued denial and
refusal of the Commission to accept the same, as and when filed, is constitutionally and
legally incorrect and may expose the Commission to such further or other action as may be
warranted in terms of the Constitution and the law.

6. But there is another, and more fundamental, aspect that must also be alluded to. It was
categorically declared in paragraph 8 of the Short Order that on filing the requisite
statement and its confirmation by the political party concerned, the seat secured by such
candidate shall be forthwith deemed to be a seat secured by that political party. Therefore,
upon submission of the declarations and certifications referred to above, the position of the
returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood
determined and fixed as a matter of law as on those dates and no subsequent act can alter
what became, on the respective dates, past and closed transactions. As per the position so
determined, the said returned candidates were and are the returned candidates of PTI and
thus members of the parliamentary party of PTI in the National Assembly and Provincial
Assemblies concerned, for all constitutional and legal purposes. The attempt by the
Commission to confuse and cloud what is otherwise absolutely clear as a matter of the
Constitution and the law must therefore be strongly deprecated. The list required to be
issued by the Commission in terms of paragraph 8 (read with paragraph 10) of the Short
Order is nothing more than a ministerial act, for the information and convenience of all
concerned, and has no substantive effect. Nonetheless, the continued failure of, and refusal
by, the Commission to perform this legally binding obligation may, as noted, have
consequences. This obligation must be discharged forthwith.

7. With the above clarifications, the present application is disposed of. Office shall dispatch
a copy of this order to the respective parties.

Sd/-

Justice Syed Mansoor Ali Shah

Sd/-

Justice Munir Akhtar

Sd/-

Justice Muhammad Ali Mazhar

Sd/-

Justice Ayesha A. Malik

Sd/-

Justice Athar Minallah

Sd/-

Justice Syed Hasan Azhar Rizvi

Sd/-

Justice Shahid Waheed

Sd/-

Justice Irfan Saadat Khan

Table of Contents

Preface ..................................................................... 132

Nature of election disputes and responsibility of courts 135

Relevant facts of the case 139

PTI's application for impleadment (CMA No. 5913 of 2024) 141

Claim for allocating reserved seats to SIC or to PTI 142

Questions of law 142

Scope of fundamental right guaranteed by Article 17(2) of the Constitution 143

Right to vote and the freedom of expression guaranteed under Article 19 145

(i) What is the consequence of declaring a political party ineligible to obtain an election
symbol under Section 215(5) of the Elections Act 2017? Does such a declaration affect the
political party's other constitutional and statutory
rights? 146

Principle of strict construction of statutes providing penal consequence or curtailing

fundamental rights 148

Answer to question (i) and its applicability to PTI 150

Explanation to Rule 94 of the Election Rules 2017 is ultra vires the Elections Act and the
Constitution 151

(ii) Can a candidate nominated by a political party ineligible to obtain an election symbol be
mentioned as an independent candidate in the list of contesting candidates (Form-33), and
can such a returned candidate be notified as an independent returned candidate in the
Section-98 Notification? 153

Right to contest elections as a political party through its nominated candidates is a

fundamental right under Article 17(2) of the Constitution 153

The order of the Commission, dated 2 February 2024, made on the application of Mr.
Salman Akram Raja (a PTI candidate) was both unconstitutional and unlawful. 155

Difference between "interpretation" and "construction" of statutes 158

Answer to question (ii) and its applicability to PTI 158

Validity of party tickets issued by Mr. Gohar Ali Khan as Chairman PTI 159

(iii) Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to political parties that
have contested for and won general seats or to all enlisted political parties? 163

Presumption that same words used in a statute carry same meaning and different words
different meanings, is not absolute 166

Words "secured" and "won" carry the same meaning in paragraph (d) of Article 51(6) and
have been used interchangeably in its main provisions and proviso. 167

The subject and object of the proviso to Article 51(6)(d) 168

 The proviso to Article 51(6)(d) is not a true proviso 168

The effect of the use of the word "such" with "political party" in the latter part of the
proviso 170

Harmonious reading of Article 51(6(d) with Article 63A(2) 171

Answer to question (iii) and its applicability to SIC and PTI 173

(iv) How is the proportional representation of a political party to be calculated for the
allocation of reserved seats under Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution? 173

Position of political parties and independent members of Parliament in a parliamentary

democracy 174

Proportional representation system of political parties is a composite expression 175

Constitutional objective of providing seats reserved for women and non-Muslims 176

Answer to question (iv), and its applicability to PTI and other political parties 177

Denial of due share of proportional representation in the reserved seats violates the
fundamental rights of the politicial party and the electorate guaranteed by Articles 17(2) and
19 of the Constitution. 177

What relief would serve the ends of justice? 178

Unlawful acts and omissions of the Returning Officers and the Commission that caused
prejudice to PTI 180

The scope of powers of the Commission under Article 218(3) and of the Supreme Court
under Article 187(1) of the Constitution. 181

Point of divergence between eight Judges and three Judges 183

The Commission has failed to perform its role as a "guarantor institution" of democratic
processes 187

PTI is before the Court. 190

Relief granted; short order reproduced 191

JUDGMENT

SYED MANSOOR ALI SHAH J.---

Preface

At the core of our democratic Constitution lies the will of the people of Pakistan, with
free and fair elections being fundamental to democracy. The principle that 'the most
important political office is that of the private citizen'1 underscores the crucial role of the
people, whose right to vote is the lifeblood of democratic governance. Democracy thrives on
the belief that authority inherently resides in the people, a principle enshrined in the
Constitution of every democratic nation, including ours. Our Constitution is not merely a
governmental blueprint but a covenant affirming the supreme role of the people in shaping
their destiny.

2. Under our Constitution, while the sovereignty of the entire Universe belongs to Almighty
Allah alone, the authority is to be exercised by the people of Pakistan as a "sacred trust"
within the limits prescribed by Him. It posits that people are entrusted with the
responsibility of governance, which is to be exercised through their chosen representatives.
The notion of a "sacred trust" elevates the responsibility of both the government and the
judiciary in our Islamic republic. It embeds a moral dimension into the practice of
democracy, where the fidelity to this trust is seen as paramount. In the context of elections,
this "sacred trust" implies that all the actors in the electoral process must adhere to a higher
standard of fair and honest conduct ensuring electoral integrity.

3. Election authorities, as "electoral management bodies", are the "guarantor institutions"

of democratic processes and are critical to democratic governance, akin to a "fourth branch
of government". Their constitutional role is to ensure the conduct of elections by providing
an equal and fair competitive field for all political entities and protect citizens' rights to vote.
As an impartial steward of the electoral process, the Election Commission of Pakistan is not
only an administrative body but also a guardian of electoral integrity and democracy's
legitimacy. When election authorities engage in actions that undermine these principles,
such as unlawfully denying the recognition of a major political party and treating its
nominated candidates as independents, they not only compromise the rights of these
candidates but also significantly infringe upon the rights of the electorate and corrode their
own institutional legitimacy.

4. Political parties play a crucial role in representative democracies, acting as

intermediaries between the state and its citizens. They are uniquely positioned to shape and
structure electoral choices, organize public opinion, and integrate diverse interests into
coherent platforms, thereby making electoral decisions meaningful and ensuring the proper
functioning of democracy.2 Moreover, political parties contribute to stable governance by
facilitating consistent lawmaking and ensuring regular accountability. As such, they are
essential to electoral competition and are key to the legitimacy, efficiency, and accountability
of state institutions. This central role of political parties in the constitutional process is
referred to as "constitutional particracy", meaning a system in which political parties serve
as the primary foundation of governance.3 For democracy to endure, political parties must
be supported and strengthened, not eliminated. A democracy without political parties is
unlikely to sustain itself for long.

5. When the Election Commission errs or makes significant mistakes impacting the
electoral process, judicial intervention becomes necessary to rectify them and ensure
electoral justice. The judiciary, tasked with ensuring electoral justice, must foremost
preserve the will of the people. Election disputes are viewed through this lens, emphasizing
electoral integrity and democracy's legitimacy to maintain public confidence in governance.
Electoral justice is vital to protecting political and electoral rights and is intertwined with
electoral integrity. The role of the Supreme Court of Pakistan in overseeing electoral integrity
is crucial for sustaining public trust in the democratic process, and the Court's power to do
"complete justice" is a critical tool in the constitutional arsenal of this Court, enabling it to
prevent democratic backsliding,4 and protect democracy effectively with a focus on the
electorate's rights. Denying electoral justice and compromising electoral integrity would
undermine the very legitimacy of democracy.

6. When static interpretation fails to preserve the vitality of the Constitution's text and
principles, judges have typically rejected it in favor of constitutional fidelity.5 Constitutional
fidelity as a concept embodies that to be faithful to the Constitution is to interpret its words
and to apply its principles in ways that preserve the Constitution's meaning and democratic
legitimacy over time. Constitutional fidelity and legitimacy both are framed in a means-end
relationship; legitimacy as the end and constitutional fidelity as a means to that end. 6 We
must remember that Constitutions are not ephemeral enactments, designed to meet
passing situations but are 'designed to approach immortality as nearly as human institutions
can approach it.'7

7. With this understanding of the importance of the will of the people, fair conduct of
elections, role of the Election Commission as a guarantor institution, centrality of political
parties to the electoral process, electoral justice, electoral integrity and rights of the
electorate in a democracy, we approach this case.

Nature of election disputes and responsibility of courts

8. Before proceeding to the relevant facts of the case and the issues arising therefrom, it is
necessary to underscore the nature of election disputes and the responsibility of courts and
other judicial and quasi-judicial bodies in adjudicating such disputes. During the hearing of
these appeals, when certain facts and points of law were questioned by some members of
the Bench, the learned counsel for the respondents submitted that those facts were not in
the pleadings and that those points of law did not arise from the facts presented in the
pleadings. They contended that in exercising its appellate jurisdiction under Article 185 of
the Constitution, this Court cannot go beyond the pleadings. We are afraid, this contention is
misconceived. It results from a misunderstanding of treating election disputes as mere civil
disputes between two private parties, similar to other civil disputes.

9. Such a contention based on analogizing a petition on an election dispute to a civil suit

was repelled by Morris J. as far back as 1875 in the Tipperary Election Case, 8 with the
observation:
 I consider this is a fallacious analogy, because a petition [on an election dispute] is not a
suit between two persons, but is a proceeding in which the constituency itself is the
principal party interested.

This legal position was further elucidated the next year in 1876 by Grove J. in Aldridge 9 as
follows:

Numerous provisions of the Act have reference not merely to the individual interests or
rights of petitioners or respondents, but to rights of electors, of constituencies, and of the
public, in purity of election and in having the member seated who is duly returned by a
majority of proper votes. ...

This English jurisprudence on the nature of election disputes was adopted in India and
Pakistan. In Sreenivasan,10 Aiyar J. of the Madras High Court also repelled such a contention
of treating an election petition similar to a civil suit. He elaborated on the difference in the
nature of proceedings of a civil suit and an election petition and eloquently enunciated the
legal position thus:

This view proceeds principally on the basis that an election petition is in all essential
respects similar to an ordinary civil suit; but that is not quite so. An election petition is not a
matter in which the only persons interested are candidates who strove against each other at
the elections. The public also are substantially interested in it and this is not merely in the
sense that an election has news value. An election is an essential part of the democratic
process. The citizens at large have an interest in seeing and they are justified in insisting that
all elections are fair and free and not vitiated by corrupt or illegal practices. ... In view of the
manifest difference between a civil suit and an election petition it will not be right, it seems
to me, to press the analogy founded on the basis of a civil suit very far when we have to deal
with an election petition.

Similarly, speaking for the Supreme Court of India in Inamati,11 Bhagwati J. observed:

It is this interest of the constituency as a whole which invests the proceedings before the
Election Tribunals with a characteristic of their own and differentiates them from ordinary
civil proceedings.

An election contest as aforesaid would result in the declaration of the properly qualified
candidate as duly elected and the maintenance of the purity of the elections in which the
constituency as a whole is vitally interested and no person would get elected by flagrant
breaches of the election law or by corrupt practices.

Again, in Mohinder Singh,12 Krishna Iyer J. adeptly rearticulated the legal position as follows:

[A]n election dispute is not like an ordinary lis between private parties. The entire
electorate is vicariously, not inertly, before the court. ... We may, perhaps, call this species of
cases collective litigation where judicial activism assures justice to the constituency,
guardians the purity of the system and decides the rights of the candidates. ... Therefore, it
is essential that courts, adjudicating upon election controversies, must play a verily active
role, conscious all the time that every decision rendered by the Judge transcends private
rights and defends the constituency and the democracy of the country.

In his inimitable style, he underscored the duty of courts to exercise "vigilant monitoring" of
the election process, to call to order "lawless behaviour", and to function as "the
bodyguards of the People against bumptious power, official or other" in election disputes
thus:

[T]he periodical process of free and fair elections, uninfluenced by the caprice,
cowardices or partisanship of hierarchical authority holding it and unintimidated by the
threat, tantrum or vandalism of strong-arm tactics, exacts the embarrassing price of vigilant
monitoring. Democracy digs its grave where passions, tensions and violence, on an
overpowering spree, upset results of peaceful polls, and the law of elections is guilty of
sharp practice if it hastens to legitimate the fruits of lawlessness. The judicial branch has a
sensitive responsibility here to call to order lawless behaviour. Forensic non-action may
boomerang, for the court and the law are functionally the bodyguards of the People against
bumptious power, official or other.

In Pakistan, the above legal position was reiterated by Syed Jamshed Ali, J. in Dilshad
Khan13 and Irshad Hussain,14 respectively, as follows:

An election dispute is not stricto senso a dispute inter-parties because it affects the
entire constituency, who have a right to insist that they are represented by a person who
commands the will of the majority of electorate. Therefore, it is in the public interest that
the election disputes are expeditiously resolved and parties are not put to a protracted trial.

[A]n election dispute is not necessarily a lis inter se parties because it involves the entire
constituency, therefore, all efforts are required to be made to expeditiously dispose of an
election petition and an election petition is not to be treated like a civil suit.

We may respectfully say that the above cases correctly enunciate the nature of election
disputes and the responsibility of courts and other judicial and quasi-judicial bodies in
adjudicating such disputes. While we agree with these statements and principles of law, we
think it would also be apposite to summarise our understanding as well.

10. Elections are a crucial part of the democratic process, and the public has a major stake
in ensuring that they are held free and fair, unmarred by corrupt or illegal practices.
Therefore, unlike ordinary civil cases, election cases involve substantial public interest. An
election dispute is fundamentally different from other civil disputes, as it is not solely a
dispute between two contesting parties but a proceeding where the constituency itself is the
principal interested party. These cases involve not just the rights of the contesting
candidates or political parties but also the rights of the voters, constituencies and the public.
Election cases aim to fill public offices by properly qualified and duly elected candidates and
to maintain the purity of elections, ensuring that no one takes charge of a public office
through flagrant breaches of election laws or corrupt practices. The proceedings in election
cases thus have unique characteristics because they serve the interests of the entire
constituency, differentiating them from ordinary civil proceedings. This distinction clearly
demonstrates the flaw in treating an election case as an ordinary civil case and limiting the
judicial inquiry to the pleadings of the parties as it is in adversarial proceedings.

11. Since election cases are a species of collective or public interest litigation, the
proceedings therein are inquisitorial in nature. In these cases, any judicial intervention is to
ensure justice for the constituency and to safeguard the integrity of the electoral system.
The process of free and fair elections requires vigilant judicial monitoring to check the
influence of any capricious or partisan election or executive authority. In this regard, courts
have a critical responsibility to address lawless behaviou`r in the electoral process, as their
inaction or delay could undermine the legitimacy and credibility of the whole election. In
adjudicating election controversies, courts must therefore play an active role in an
inquisitorial manner, defending the rights of the constituency and the values and principles
of democracy. They must act as guardians of the fundamental rights of the people against
any misuse of power or illegal action in the electoral process.

12. In handling election disputes, the primary obligation of courts is to protect the
electorate's right to fair representation, ensuring that only candidates who have legitimately
won the support of the electorate through fair processes assume office. Courts must rise
above political biases and interests, focusing solely on legal and evidential matters to
safeguard the electorate's interests. Their approach to election disputes reflects the
judiciary's overarching responsibility to uphold the integrity of the electoral process. As the
highest court in the judicial hierarchy, this Court bears a profound duty to prioritize and
protect the rights of the electorate, ensuring that their voice and representation in elected
bodies are not compromised by procedural failings or errors in the electoral process. This
duty underscores the Court's unique and expansive constitutional mandate to oversee the
electoral cycle comprehensively. Such a judicial approach not only reinforces the legitimacy
of the electoral system but also strengthens the foundations of democratic governance by
ensuring that the will of the electorate is accurately and fairly represented.

13. Unfortunately, the above legal position regarding the nature of election disputes and the
responsibility of courts was not brought to the notice of the Bench by the learned counsel
for the parties while making their arguments. However, eleven members of the Bench, being
themselves aware of the above legal position, proceeded to inquire into the facts and points
of law that were not presented before the court below, that is, the Peshawar High Court.
Although these eleven members of the Bench disagreed to some extent on granting the
eventual relief, their awareness of the true legal position as to the nature of election
disputes and the responsibility of courts led them to a broader and more comprehensive
judicial inquiry into all the relevant facts and law points concerning the election dispute
involved in the present case, as set out next.
Relevant facts of the case

14. On 15 December 2023, the Election Commission of Pakistan ("Commission") announced

the election programme for the General Elections-2024 to the National Assembly and
Provincial Assemblies. According to this programme, the last date for candidates to file
nomination papers with the Returning Officers was 22 December 2023, which was extended
on that day to 24 December 2023. On 22 December 2023, the Commission also decided the
then-pending matter of intraparty elections of the political party, Pakistan Tehreek-e-Insaf
("PTI"). The Commission determined that PTI had not conducted its intra-party elections in
accordance with its constitution and election laws. As a result, the Commission declined to
recognize PTI's intra-party elections and declared PTI ineligible to obtain its election symbol.
Although this decision was initially suspended on 26 December 2023 and subsequently set
aside on 10 January 2024 by the Peshawar High Court, this Court restored the Commission's
decision on 13 January 2024. PTI candidates were thus not allotted the party symbol of PTI
but instead were allotted various different symbols that had been prescribed by the
Commission for independent candidates.

15. In the course of the election programme, when the Returning Officers published the lists
of contesting candidates (Form-33)15, they mentioned PTI candidates as independent
candidates. One of the PTI candidates, Mr. Salman Akram Raja, challenged this action by the
Returning Officer of his constituency before the Commission. By its order dated 2 February
2024, the Commission rejected his challenge and declared him an independent candidate.
The poll for the elections was then held on 8 February 2024, and PTI candidates were
notified by the Commission as independent returned candidates in the notification
published in the official Gazette under Section 98 of the Elections Act 2017 ("Section-98
Notification").

16. After the publication of Section-98 Notification, a substantial number of independent

returned candidates (86 for the National Assembly; 107 for the Punjab Assembly; 90 for the
Khyber Pakhtunkhwa Assembly; and 9 for the Sindh Assembly) joined a political party, Sunni
Ittehad Council ("SIC"), to obtain the share of proportional representation in the seats
reserved for women and non-Muslims in the National Assembly and the Provincial
Assemblies of Khyber Pakhtunkhwa, Punjab and Sindh. SIC then informed the Commission of
the joining of these returned candidates and requested the Commission, through four
separate applications (letters) dated 21 February 2024, to allocate to it its due share in the
seats reserved for women and non-Muslims in the National Assembly and the said three
Provincial Assemblies.

17. Certain other political parties, such as Pakistan Muslim League (Nawaz) (PML(N)) and
Muttahida Qaumi Movement (Pakistan) (MQM(P)), filed applications opposing SIC's request
for reserved seats and prayed for the allocation of the reserved seats to them and other
eligible political parties. Some individuals also filed applications opposing the SIC's request
and praying that SIC should not be treated as a parliamentary party. The political party,
Pakistan People's Party Parliamentarians (PPPP), appeared before the Commission as a
proforma respondent in the application filed by MQM(P), while the political parties, Jamiat
Ulema-e-Islam Pakistan (JUIP) and Pakistan Muslim League (PML), appeared in response to
the Commission's notice and opposed SIC's request.

18. By its order dated 1 March 2024, the Commission rejected SIC's applications and
decided that the reserved seats for women and non-Muslims, which had been requested by
SIC but declined, would be allocated to other political parties as per the proportional
representation system of political parties. Accordingly, those reserved seats (19 for women
and 3 for non-Muslims in the National Assembly; 21 for women and 4 for non-Muslims in
the Khyber Pakhtunkhwa Assembly; 24 for women and 3 for non-Muslims in the Punjab
Assembly; and 2 for women and 1 for non-Muslims in the Sindh Assembly - 78 in total -
hereinafter referred to as the "disputed reserved seats") were allocated to other political
parties. SIC challenged the Commission's order before the Peshawar High Court in writ
jurisdiction. By its judgment dated 25 March 2024 ("impugned judgment"), the Peshawar
High Court dismissed the SIC's challenge and upheld the Commission's order. Hence, these
appeals were filed by SIC with leave of the Court.

PTI's application for impleadment (CMA No. 5913 of 2024)

19. During the pendency of these appeals, PTI filed an application seeking its impleadment
in these appeals and submitting therein the facts and circumstances under which its
returned candidates joined SIC. PTI submitted in its application, inter alia, that PTI issued
party tickets to its candidates, which were to be filed with the respective Returning Officers
by 4 pm on 13 January 2024, the day fixed for the allotment of election symbols. The
Supreme Court took up the Commission's appeal against the judgment of the Peshawar High
Court in the matter of PTI's intra-party elections and its election symbol on 12 January 2024
for hearing, which continued until late evening on 13 January 2024.

19.1. Faced with the possibility of an adverse decision by the Supreme Court after 4 pm that
day, PTI entered into an arrangement with another political party, PTI-Nazriati, under which
party tickets were issued to PTI candidates by that party to obtain a common symbol for PTI
candidates to prevent the disenfranchisement of a large part of the electorate. However, the
same day, the Chairman of PTI-Nazriati appeared on national television channels and
disavowed the tickets issued. At about the same time, the Commission also issued an order
dated 13 January 2024 directing the Returning Officers not to accept a political party's
tickets for candidates who belonged to another political party. Therefore, most of PTI
candidates withdrew the tickets of PTI-Nazriati and presented PTI's tickets to the Returning
Officers. Some of the Returning Officers placed the same on file while others refused to
receive the same pending the decision of the Supreme Court.

19.2. Awaiting the decision of the Supreme Court, the Commission extended the time for
submitting the party tickets and the allotment of election symbols till 12 pm that day. The
Supreme Court announced its short order at about 11 pm on 13 January 2024, whereupon
the Returning Officers rejected PTI's tickets and, by treating PTI candidates as independent
candidates, allotted them different election symbols. The poll was held on 8 February 2024,
and PTI candidates won a large number of seats in the National and Provincial Assemblies.
These candidates were notified as independent returned candidates by the Commission by
relying upon Rule 94 of the Elections Rules 2017 and the judgment of the Supreme Court
dated 13 January 2024.

19.3. The Commission had earlier accepted in 2018 a political party, Balochistan Awami
Party, which had not contested for general seats, eligible for the allocation of reserved seats.
Therefore, PTI-backed returned candidates joined SIC, with which PTI had an ongoing
alliance/ relationship, within three days of being so notified, in order to become entitled to
the allocation of the reserved seats. In its application, PTI also made the following
contentions:

A primary purpose of [Articles 51(6)(d) & (e) and 106(3)(c) of] the Constitution is the
establishment of a representative National Assembly and representative Provincial
Assemblies. Denial of reserved seats to PTI would create an entirely unrepresented National
Assembly as well as Provincial Assemblies that do not reflect the will of the people.

[T]he denial of reserved seats to SIC/PTI and the allocation of a disproportionate number
of reserved seats to other political parties would deepen the denial of the will of the people.

As per these contentions and the arguments made during the hearing, PTI claimed the
allocation of the disputed reserved seats either to SIC or to itself (PTI).

Claim for allocating reserved seats to SIC or to PTI

20. It may also be pertinent to mention here that in the course of his arguments, the
learned counsel for SIC also attempted to explain the above circumstances under which the
returned candidates, who according to him were PTI candidates, joined SIC. However, some
honourable members of the Bench reproved him, questioning how he could make conflicting
arguments as he was supposed to plead the case of SIC, not of PTI. With respect, we say that
both SIC and PTI took the same stance on the peculiar circumstances that led the returned
candidates to join SIC; in no way did they make any conflicting assertions. Both emphasized
that it is the right of the people who had voted for the returned candidates that their
mandate should be reflected in allocating the disputed reserved seats to SIC or to PTI.

Questions of law

21. On the above facts and the contentions made by learned counsel for the parties, the
following questions of law fall for determination:

i. What is the consequence of declaring a political party ineligible to obtain an election

symbol under Section 215(5) of the Elections Act 2017? Does such a declaration affect the
political party's other constitutional and statutory rights?
ii. Can a candidate nominated by a political party ineligible to obtain an election symbol be
mentioned as an independent candidate in the list of contesting candidates (Form 33), and
can such a returned candidate be notified as an independent returned candidate in the
Section-98 Notification?

iii. Do Articles 51(6) (d) & (e) and 106(3) (c) of the Constitution refer to political parties that
have contested for and won general seats or to all enlisted political parties? and

iv. How is the proportional representation of a political party to be calculated for the
allocation of reserved seats under Articles 51(6) (d) & (e) and 106(3) (c) of the Constitution?

We shall discuss and decide the above questions seriatim. However, before doing so, we
want to briefly state the scope of the fundamental right guaranteed by Articles 17(2) and 19
of the Constitution, as the whole case hinges upon it and the answer of all the above
questions are rooted in it.

Scope of fundamental right guaranteed by Article 17(2) of the Constitution

22. The provisions of Article 17(2) of the Constitution are cited here for ease of reference
and reading:

Article 17(2) of the Constitution:

Every citizen, not being in the service of Pakistan, shall have the right to form or be a
member of a political party, subject to any reasonable restrictions imposed by law in the
interest of the sovereignty or integrity of Pakistan, and such law shall provide that where the
Federal Government declares that any political party has been formed or is operating in a
manner prejudicial to the sovereignty or integrity of Pakistan, the Federal Government shall,
within fifteen days of such declaration, refer the matter to the Supreme Court, whose
decision on such reference shall be final.

A bare reading of the provisions of Article 17(2) of the Constitution shows that it guarantees
to every citizen of Pakistan who is not in the service of Pakistan, the right to form or be a
member of a political party. As per this Article, any reasonable restrictions can be imposed
on this right by law only in the interest of sovereignty or integrity of Pakistan. This right has
been regarded so important by the constitution makers that the adjudication of the matter
of its restriction on the specified two grounds has been entrusted to the apex court of the
country-the Supreme Court of Pakistan-and not to any other court. The protection of this
right is so essential for ensuring democracy and representative government that its
significance cannot be overstated. Although all courts and tribunals are mandated to enforce
the right guaranteed by this Article, this Court (the Supreme Court of Pakistan) is the
ultimate guardian of it. Therefore, it is also because of the constitutional obligation of this
Court to protect the right guaranteed by this Article, as specifically entrusted to it, that we
decided to make a broader and comprehensive judicial inquiry into all the relevant facts and
law points concerning enforcement of the fundamental rights of both the voters and the
political parties.

23. As held by this Court in Nawaz Sharif,16 the fundamental rights guaranteed by the
Constitution, an organic instrument, are not capable of precise or permanent definition
delineating their meaning and scope for all times to come. With the passage of time,
changes occur in the political, social and economic conditions of the society, which requires
re-evaluation of their meaning and scope in consonance with the changed conditions.
Therefore, keeping in view the prevailing socio-economic and politico-cultural values and
ideals of the society, the courts construe the fundamental rights guaranteed by the
Constitution with a progressive, liberal and dynamic approach. This approach ensures that
the fundamental rights remain a vibrant and effective guarantee of citizens' rights, liberties
and freedoms, adapting to the evolving needs and aspirations of society. With this approach,
the courts expound the fundamental rights to give them "life and substance"17 that are true
to the reality of the changing times.

24. In view of the above principles of interpreting fundamental rights, this Court has
expounded in several cases the scope of the "right to form or be a member of a political
party" guaranteed by Article 17(2) and held that it includes the right to function and operate
as a political party,18 the right to participate in and contest an election as a political
party,19 the right to form the Government and complete the prescribed tenure if the
members of the political party constitute the requisite majority,20 the right to contest an
election in his individual capacity or as a member of a political party,21 the right to be
governed by chosen representatives22 and the right to vote.23 This bouquet of political
fundamental rights ensures a functional and a workable democracy and a representative
government. It is underlined that 'representation in fact is democracy'. 24 Therefore, the right
guaranteed by Article 17(2) is essential for actualizing the constitutional objective of
establishing an order wherein the State exercises its powers and authority through the
chosen representatives of the people.25

Right to vote and the freedom of expression guaranteed under Article 19

25. Furthermore, as a form of expression, the right to vote is part of the fundamental right
to freedom of expression guaranteed by Article 19 of the Constitution,26 which is cited here
for ease of reference:

Article 19: Every citizen shall have the right to freedom of speech and expression...
subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or
the integrity, security, or defence of Pakistan or any part thereof, friendly relations with
foreign states, public order, decency, morality, or in relation to contempt of court,
commission of or incitement to an offence.

The right to freedom of speech and expression is considered "preservative of all

rights".27 The act of voting for a candidate of a political party or an independent candidate is
a form of expression and an inherent concept within the Constitution, fundamental to the
democratic legitimacy and validity of the legislature. When individuals cast their votes, they
express their opinions on how they believe their society should be governed, who should
govern it, and what policies should be prioritized. This form of expression is crucial because
it encapsulates the will of the electorate, conveying messages about public preferences.

26. In a democratic context, freedom of expression extends beyond individual speech to

encompass the collective expression of a community's or nation's political will through their
elected representatives. In essence, freedom of expression and representativeness are
deeply interlinked, each reinforcing the other. A truly representative government not only
exemplifies the collective expression of its people but also ensures that this expression
influences governance. The right to form political parties, the right to contest elections and
the right to vote are therefore pivotal extensions of representativeness and freedom of
expression, essential for cultivating a socially just environment.

27. The fundamental rights enshrined in Articles 17(2) and 19 of the Constitution thus
underscore the significance of political participation and freedom of expression, both of
which are essential to the functioning of a representative democracy. Article 17(2)
guarantees the right to form or join political parties, highlighting the vital role of political
participation in safeguarding democracy, while Article 19 upholds the freedom of expression,
which is integral to the electorate's ability to influence the formation of government by
expressing their choices through their votes. Together, these Articles emphasize the
importance of electoral integrity and political justice, ensuring that every citizen's voice and
choice are heard and represented in the political process.

28. Having so briefly stated the scope of the rights guaranteed by Articles 17(2) and 19 of
the Constitution, we will next discuss the questions and examine the implications of this
right further.

(i) What is the consequence of declaring a political party ineligible to obtain an election
symbol under Section 215(5) of the Elections Act 2017? Does such a declaration affect the
political party's other constitutional and statutory rights?

29. The fundamental right to form a political party guaranteed by Article 17(2) of the
Constitution is regulated by the Elections Act 2017 ("Elections Act"). Section 2(xxviii) of the
Elections Act defines a "political party" to mean an association of citizens or a combination
or group of such associations formed with a view to propagating or influencing political
opinion and participating in elections for any elective public office or for membership of a
legislative body, including an Assembly, the Senate, or local government. Chapter XI of the
Elections Act, comprising Sections 200 to 213, contains the detailed provisions, inter alia, on
the subjects of formation, enlistment, membership, functioning, intra-party elections,
sources of funds, and dissolution of political parties, etc.
30. Section 202 makes it obligatory for the Commission to enlist a political party if the
application for its enlistment is accompanied by (i) a copy of the constitution of the political
party, (ii) the certificate and the information required to be submitted under Sections 201
and 209, (iii) a copy of consolidated statement of its accounts under Section 210, (iv) a list of
at least two thousand members with their signatures or thumb impressions along with
copies of their National Identity Cards, and (v) the deposit of two hundred thousand rupees
in favour of the Commission in the Government Treasury as enlistment fee. A political party
which has been refused enlistment by the Commission can file an appeal before the
Supreme Court. This provision aligns with the constitutional mandate entrusted to the
Supreme Court under Article 17(2) of the Constitution as the ultimate guardian of the right
guaranteed by that Article. It is also notable that a political party once enlisted under the
Elections Act cannot be delisted; the Commission's power to cancel the enlistment of a
political party under subsection (5) of Section 202 relates only to the political parties
enlisted before the commencement of the Elections Act, i.e., under earlier law. Whereas
Section 212 contains the provisions on the matter of dissolution of political parties, which
are similar to those contained in Article 17(2) of the Constitution.

31. The provisions that are more relevant to the present case are those contained in
Sections 208 and 209, concerning the intra-party elections of political parties. As per Section
208, the office-bearers of a political party are to be elected periodically in accordance with
the constitution of the political party, provided that a period, not exceeding five years,
intervenes between any two elections. Once the intra-party elections are conducted, the
political party concerned is to publish the updated list of its central office-bearers on its
website and also to send such list to the Commission. Similarly, under Section 209, within
seven days from completion of its intra-party elections, a political party is to submit a
certificate signed by an office-bearer authorized by the Party Head, to the Commission to
the effect that the elections were held in accordance with the constitution of the political
party. Such certificate should contain the following information: (a) the date of the last intra-
party elections; (b) the names, designations, and addresses of office-bearers elected at the
Federal, Provincial, and local levels, wherever applicable; (c) the election results; and (d) a
copy of the political party's notifications declaring the results of the election. Within seven
days from the receipt of such certificate of a political party, the Commission is to publish the
certificate on its website. It is notable that under Section 208(5), where a political party fails
to conduct intra-party elections as per the given time frame in its constitution (but not
exceeding the statutory period of five years) despite a notice issued by the Commission to
do so, then the Commission can impose a fine which may extend to two hundred thousand
rupees but not be less than one hundred thousand rupees. While the consequence of failure
to comply with the provisions of Section 209, which relates to the submission of a certificate
containing the specified information and signed by an office-bearer authorized by the Party
Head, to the effect that the elections were held in accordance with the constitution of the
political party, is provided in Section 215(5).
32. Section 215(5)28 of the Elections Act provides that if a political party fails to comply with
the provisions of Section 209 (regarding intraparty elections) or Section 210 (regarding
sources of the party's funds), the Commission may, after affording it an opportunity of being
heard, declare it ineligible to obtain an election symbol for election to Majlis-eShoora
(Parliament), Provincial Assembly or a local government, and shall not allocate an election
symbol to such political party in subsequent elections. The word "may" in Section 215(5)
indicates the discretion of the Commission in making the declaration, which discretion, like
all other discretionary powers vested in public functionaries, is to be exercised justly, fairly
and reasonably, considering the peculiar facts and circumstances of each case. However, the
consequence of making such a declaration is clearly specified and is not left to the discretion
of the Commission. As stipulated in Section 215(5), the consequence of making the
declaration is that the Commission is not to allocate an election symbol to such political
party in subsequent elections.

Principle of strict construction of statutes providing penal consequence or curtailing

fundamental rights

33. It is a cardinal principle of the construction of statutes that any provision entailing penal
consequence, whether of criminal law29 or of civil law,30 must be construed strictly. This
principle of strict construction of penal statutes is also called the principle against doubtful
penalisation. It stresses that a person should not be penalised except under clear law and if,
in construing the relevant provisions, there appears any reasonable doubt or ambiguity, it
should be resolved in favour of the person who would be liable to the penalty. No penalty or
penal consequence can be added to the one specified in law by inference or assumption.
Penal actions can only be taken on the basis of express and clear provisions of law. The act
attracting the penal consequence and the person responsible for it must fairly and squarely
fall within the plain words of the law. Courts are not to strain or stretch the meaning of the
words to bring the act or the subject within the ambit of penal provisions; in other words,
the scope of penal provisions is not to be extended through liberal construction.
Furthermore, if a penal provision is susceptible to two reasonable constructions, the one
that does not extend the penalty is to be adopted. Any reasonable doubt or ambiguity is to
be resolved in favour of the person who would be liable to the penalty, and the construction
that avoids the penalty is to be adopted.31

34. Another well-established principle of constitutional and statutory construction is that

while the fundamental rights guaranteed in the Constitution are to be construed
progressively and liberally,32 provisions in the Constitution or in any law that curtail the
fundamental rights are to be construed restrictively and narrowly.33 This principle owes its
genesis to the broader principle of strict construction of statutes encroaching on rights,
which applies to all fundamental rights recognized by common law, whether or not
guaranteed in the Constitution. As per this principle, statutes that encroach on such rights of
the subject are also subject to strict construction. They are to be construed, if possible, to
protect such rights, and if there is any ambiguity, the construction that saves the right should
be adopted.34 In a constitutional democracy, laws are solicitous of the individual rights and
liberties of citizens and interfere with them as little as possible in the public interest. By
adopting a liberal and expansive interpretation of such laws, individual rights and liberties
cannot be curtailed more than expressly provided by the legislature in the public interest.
Therefore, laws that curtail individual rights and liberties, particularly the fundamental rights
guaranteed in the Constitution, are to be construed strictly.35

35. These principles of statutory construction guide our analysis and interpretation of the
provisions of Section 215(5) of the Elections Act. It is unequivocal that Section 215(5)
prescribes a penal consequence for a political party's failure to comply with the provisions of
Section 209 (regarding intra-party elections) or Section 210 (regarding the sources of the
party's funds). The specified penalty of non-allocation of an election symbol curtails the
political party's fundamental right to function and operate as a political party a right implicit
in the right to form a political party guaranteed by Article 17(2) of the
Constitution.36 Therefore, Section 215(5) must be construed strictly. No further penalty or
consequence beyond the specified non-allocation of an election symbol can be inferred or
assumed from Section 215(5). Additionally, no other constitutional or statutory right of the
political party can be denied on the basis of the non-allocation of an election symbol under
this provision. Any interpretation of Section 215(5) that would impose further
penalties beyond the expressly stipulated contravenes the principle of strict construction of
laws that entail penal consequences or curtail fundamental rights. Thus, the scope of the
penalty provided by Section 215(5) must remain confined to its express terms, ensuring that
no other constitutional or statutory right of the political party is affected.

Answer to question (i) and its applicability to PTI

36. In light of the foregoing interpretation, we determine question (i) in the terms that the
sole consequence of declaring a political party ineligible to obtain an election symbol under
Section 215(5) of the Elections Act for failing to comply with the provisions of Section 209
regarding intra-party elections is the non-allocation of an election symbol to that party in
subsequent elections-nothing more, nothing less. Furthermore, such a declaration does not
affect the political party's other constitutional and statutory rights.

37. This was the effect of the Commission's order dated 22 December 2023 (upheld by this
Court vide its order dated 13 January 2024), declaring PTI ineligible to obtain its election
symbol under Section 215(5) of the Elections Act; other constitutional and statutory rights of
PTI to function and operate as a political party were not thereby affected. With respect, it is
observed that had this Court clarified this legal position in its order dated 13 January 2024,
or had the Commission clarified it in its order dated 22 December 2023 or order dated 13
January 2024, the entire confusion regarding the status of PTI candidates or PTI's right to
reserved seats would not have occurred.

38. We feel constrained to observe here that we have some doubts about whether the
Commission has the power to reject the certificate of intra-party elections submitted by a
political party under Section 209, and whether the Commission exercised its discretion
under Section 215(5) justly, fairly and reasonably in PTI's case, particularly when the election
programme had already been announced and the fundamental right of citizens to vote for
the political party of their choice was at stake. Similarly, we have certain reservations about
how the matter of intraparty elections-a matter of internal governance of party-can trump
the fundamental rights of citizens to vote and of political parties to effectively participate in
and contest elections through obtaining a common symbol for their candidates, guaranteed
under Articles 17(2) and 19 of the Constitution. However, since these questions are sub
judice in the review petition filed by PTI against this Court's judgment dated 13 January
2024, we abstain from examining and expressing our definitive view on them. (One of us,
Justice Muhammed Ali Mazhar, does not want to make the observations made in this
paragraph because review petition against this Court's judgment dated 13 January 2024 is
pending. He also wishes to make clear that nothing in this paragraph is intended to or will
impact upon the hearing of the review petition).

Explanation to Rule 94 of the Elections Rules 2017 is ultra vires the Elections Act and the
Constitution

39. The discussion under this question would, however, be incomplete without determining
the legal status of the Explanation to Rule 94 of the Election Rules 2017 ("Election Rules"). It
is pertinent to mention that the Election Rules have been made by the Commission in the
exercise of its rule-making power under Section 239 of the Elections Act, which authorises
the Commission to make rules for carrying out the purposes of the Act.

40. Rule 9437 provides the procedure for the calculation, allocation and notification of the
share of proportional representation of political parties in the seats reserved for women and
non-Muslims. Its Explanation stipulates that '[fJor the purpose of this rule, the expression
"political party" means a political party to which a symbol has been allocated by the
Commission.' By defining a political party in this manner, the Explanation excludes a political
party that has not been allotted a symbol by the Commission from being allocated a share of
proportional representation in the reserved seats. No such exclusion of a political party, as
created by the Explanation to Rule 94, is provided in Articles 51(6) (d) & (e) and 106(3) (c) of
the Constitution, nor is any such consequence of non-allocation of the election symbol
provided in Section 215(5) or any other provision of the Elections Act. In effect, it
has introduced an additional penal consequence of declaring a political party ineligible to
obtain an election symbol under Section 215(5) of the Elections Act, and it has also infringed
the constitutional right of a political party, conferred by Articles 51(6) (d) & (e) and 106(3) (c)
of the Constitution, to have its due share of proportional representation in the seats
reserved for women and non-Muslims on the basis of general seats secured by such a
political party. This Explanation has thus clearly gone beyond and against the provisions of
the Elections Act and the Constitution.
41. It is an established principle of law that rules made under the rule-making authority
conferred by an Act ("parent statute") can neither enlarge nor go beyond the scope of the
parent statute, nor can they override or conflict with its provisions. If the rules are
repugnant to or inconsistent with the provisions of the parent statute, they are ultra vires
and invalid. The rule-making authority is conferred to give effect to the provisions of the
parent statute, not to neutralise or contradict them. The primary purpose of the rules is to
provide procedural details for carrying out the purposes of the parent statute. They cannot
militate against the substantive provisions of the parent statute.38 Moreover, just as a
provision in the parent statute that is inconsistent with any provision of the Constitution is
ultra vires the Constitution and thus invalid,39 so too are the rules made under its authority:
the rules that are inconsistent with any provision of the Constitution are also ultra vires the
Constitution and thus invalid. What cannot be done directly in the parent statute through
primary legislation cannot be done indirectly in the rules through delegated legislation.

42. In view of the above, the Explanation to Rule 94 of the Election Rules, being beyond the
scope of Section 215(5) of the Elections Act and inconsistent with the provisions of Articles
51(6) (d) & (e) and 106(3) (c) of the Constitution, is declared ultra vires the Elections Act and
the Constitution, thus void and invalid.

(ii) Can a candidate nominated by a political party ineligible to obtain an election symbol be
mentioned as an independent candidate in the list of contesting candidates (Form-33), and
can such a returned candidate be notified as an independent returned candidate in the
Section-98 Notification?

43. The answer to question (i) above, has made it easier to address this question. The only
point that requires some discussion here is whether a political party has a constitutional
and/or statutory right to nominate its candidates for an election to Majlis-e-Shoora
(Parliament), Provincial Assembly or a local government. Fortunately, we need not grapple
much with this point as it has already been discussed at some length and decided
authoritatively by the Full Court Benches of this Court in the two cases of Benazir Bhutto
decided in 1988.40 Instead of burdening this judgment with extracts from those cases, we
find it appropriate to state summarily what was decided therein on the point under
consideration, with which we respectfully agree.

Right to contest elections as a political party through its nomi- nated candidates is a
fundamental right under Article 17(2) of the Constitution

44. Article 17(2) of the Constitution guarantees the right to form or be a member of a
political party. Because the formation of a political party necessarily implies the carrying on
of all its activities, the right to form a political party extends to its functioning and operation.
The functioning is implicit in the formation of a political party. Without the right to its
functioning, the right to form a political party would be meaningless and of no avail. To
participate in an election to Parliament or a Provincial Assembly and to nominate or put up
candidates at any such election are the principal activities (functions) of a political party.
Depriving a political party of these activities destroys the political existence of the party and
is tantamount to its political extermination and virtual dissolution, which cannot be done
otherwise than by the procedure and on the grounds provided in Article 17(2) of the
Constitution. The right to participate in and contest an election as a political party is included
in the right to form or be a member of a political party. Any provision of election law that
fails to recognize the rights of political parties to participate in the elections is, therefore,
ultra vires Article 17(2) of the Constitution.

45. The Nawaz Sharif case41 decided in 1993 by a Full Court Bench of this Court not only
endorsed the above scope of the right guaranteed by Article 17(2) of the Constitution but
also advanced it further. The Court held that the right to form or be a member of a political
party guaranteed by Article 17(2) includes not only the right to participate in and contest
elections as a political party, as held in the Benazir Bhutto cases, but also the right to form
the Government and complete the prescribed tenure if the members of the political party
constitute the requisite majority.

46. Being in complete agreement with the above three decisions of the Full Court Benches
of this Court on the scope of Article 17(2), we hold that the right to participate in and
contest elections as a political party through its nominated candidates is a fundamental right
guaranteed by Article 17(2) of the Constitution. The various sections of the Elections Act,
including Sections 66 and 67, merely serve to give effect to this right as machinery
provisions. This right is not, nor can it be, extinguished by any provision of the Elections Act,
including Section 215(5) thereof. Depriving a political party of participating in and contesting
elections through its nominated candidates, it is reiterated, destroys the political existence
of the party and is tantamount to its political extermination and virtual dissolution, which
cannot be done except by the procedure and on the grounds provided in Article 17(2) of the
Constitution. Similar would be the position if the candidates nominated by a political party
are denied the status of being the candidates of that political party and are mentioned as
independent candidates in the list of contesting candidates (Form-33), or such returned
candidates are notified as independent returned candidates in the Section-98 Notification.
Such actions of the Returning Officers and the Commission would also be ultra vires Article
17(2) of the Constitution, as they effectively nullify the party's right to participate in and
contest elections.

The order of the Commission, dated 2 February 2024, made on the application of Mr.
Salman Akram Raja (a PTI candidate) was both unconstitutional and unlawful.

47. As the Commission's order dated 2 February 2024, passed on the application of Mr.
Salman Akram Raja ("Mr. Raja"), a PTI candidate, pertains to question (ii) under discussion,
we deem it necessary to examine the legality of that order alongside answering this
question, in order to ensure a comprehensive understanding of the matter. As noted above,
when the Returning Officers published the lists of contesting candidates (Form-33), PTI
candidates were mentioned therein as independent candidates. Mr. Raja, one of such
candidates, challenged this entry in the list of contesting candidates (Form-33) before the
Commission. However, the Commission, by its order dated 2 February 2024, rejected his
challenge and declared him an independent candidate. In its order, the Commission
reasoned:

Notwithstanding, the affiliation of the petitioner with PTI and alleged party ticket
including entries of party affiliation in the nomination papers of the petitioner, he cannot be
treated as nominee of PTI nor his party (PTI) can be reflected in column 5 of Form 33 in
absence of party symbol.

…………………

The petitioner has been allotted symbol from the chart available for independent
candidates as the party to which he claims affiliation has not been allocated Election Symbol
by the Commission. Allowing any entry in absence of party symbol in column 5 of Form 33
and entry [of] applicant's name as Candidate of PTI will contradict the symbol and identity of
Party as the petitioner is declared as an independent candidate.

(Emphasis supplied)

To further support its decision, the Commission also relied upon the following observation of
this Court made in its order dated 13 January 2024:

Surprisingly, no declaration was sought, nor given, that intra party elections were held in
PTI, let alone that the same were held in accordance with the law. If it had been established
that elections had been held then ECP would have to justify if any legal benefit to such a
political party was being withheld, but if intra party elections were not held the benefits
accruing pursuant to the holding of elections could not be claimed.

(Emphasis supplied)

From the cited extracts of the Commission's order, it appears that the Commission rejected
Mr. Raja's claim primarily because he had been allotted a symbol from the chart of symbols
prescribed for independent candidates, and the party (PTI) whose candidature he sought to
be mentioned in Form-33 had not been allocated an election symbol. The Commission's
reliance on the cited observation of this Court indicates that it understood a political party's
capacity to nominate candidates for an election as one of "the benefits accruing pursuant to
the holding of [intra-party] elections."

48. In defending the Commission's order and the Returning Officers' act of mentioning PTI
candidates as independent candidates in Form-33, the learned counsel for the Commission
took pains to explain the provisions of Section 6742 of the Elections Act. According to him,
Section 67 classifies candidates for symbol allocation into two categories: (i) candidates
nominated by a political party that has been allocated a symbol by the Commission under
Chapter XII, who are allotted the party symbol under subsection (2) of Section 67, and (ii)
candidates not nominated by any political party, who are treated as independent candidates
and are allotted one of the symbols not allocated to any political party. He emphasised that
Section 67 does not recognise any third category of candidates, such as candidates who are
nominated by a political party (like PTI) that has not been allocated a symbol by the
Commission under Chapter XII of the Elections Act.

49. We have given careful consideration to his arguments. We find that his focus has been
solely on the express words of subsections (2) of Section 67, while overlooking its necessary
implication. This necessary implication becomes clear when we invert the statement made
in subsection (2) of Section 67. This subsection states that "[a] candidate nominated by a
political party at an election in any constituency shall be allotted the symbol allocated by the
Commission to that political party under the provisions of Chapter XII and no other symbol."
By inverting this statement, we find as a necessary implication that a candidate nominated
by a political party that has not been allocated a symbol by the Commission shall not be
allotted the symbol declined by the Commission to that political party under Chapter XII, but
rather any other symbol. Since any other symbol is allotted to candidates under subsection
(3) of Section 67, a candidate nominated by a political party (such as PTI) that has not been
allocated a symbol by the Commission is to be allotted, under that subsection, one of the
symbols not allocated to any political party. However, the allocation of a symbol under
subsection (3) does not alter the candidate's status as a nominee of the political party, which
is determined under Section 66 on the basis of his declaration and the party certificate
(party ticket) issued in his favour.

50. The construction of subsections (2) and (3) of Section 67 proposed by the learned
counsel for the Commission, if accepted, would extinguish the fundamental right guaranteed
by Article 17(2) of the Constitution to participate in and contest elections as a political party
through its nominated candidates. As held above, the various sections of the Elections Act,
including Sections 66 and 67, merely serve to give effect to this fundamental right as
machinery provisions, which cannot be extinguished by any provision of the Elections Act,
including Section 215(5) thereof.

51. In view of the above, the Commission's order dated 2 February 2024 and the Returning
Officers' act of mentioning PTI candidates as independent candidates in Form-33 were both
unconstitutional and unlawful, and they are hereby declared as such. It would also be
appropriate to clarify that the Commission's reliance on the cited observation of this Court
made in paragraph 1143 of its order dated 13 January 2024 was misconceived and misplaced,
as that observation pertained to Section 215(5) and not to Sections 66 and 67 of the
Elections Act.

Difference between "interpretation" and "construction" of statutes

52. To explain how we have determined and declared the above legal position, despite it not
being explicitly stated in subsections (2) and (3) of Section 67, as argued by the learned
counsel for the Commission, we may underline a subtle difference between "interpretation"
and "construction" of statutes. 'Strictly speaking, construction and interpreta-tion are not
the same', as Crawford wrote and this Court approvingly cited it in Haider Zaidi, 44 'although
the two terms are often used interchangeably. Construction, however, to be technically
correct, is the drawing of conclusions with respect to subjects that are beyond the direct
expression of the text, from elements known and given in the text, while interpretation is
the process of discovering the true meaning of the language used. ... The process to be used
in any given case will depend upon the nature of the problem presented. And, as is
apparent, both processes may be used in seeking the legislative intent in a given statute. If
the legislative intent is not clear after the completion of interpretation, then the court will
proceed to subject the statute to construction.'45

We have thus drawn the above conclusion by construction from

the "elements known and given in the text" of the provisions of Sections 66, 67 and 215(5)
of the Elections Act as a necessary implication thereof.

53. It may however be clarified, as Crawford also did, that since for most practical purposes
it is sufficient to designate the whole process of ascertaining the legislative intent as either
interpretation or construction, the said distinction between the two processes has little
importance so far as the courts are concerned and is usually relegated to the realm of
academic discussion. But, as Crawford emphasised and so we do for our present purpose,
'by breaking the process of finding the legislative intent into these two processes whose
characters depend upon whether the court, strictly speaking, interprets or constructs the
legislative enactment at hand, some light is shed upon how the courts exercise the judicial
function of ascertaining the legislative intention.'46

Answer to question (ii) and its applicability to PTI

54. In view of the above, we answer question (ii) as follows: notwithstanding that a political
party has been declared ineligible to obtain an election symbol, its nominated candidates
cannot be mentioned as independent candidates in the list of contesting candidates (Form
33), despite allotment of different election symbols to them under Section 67(3) of the
Elections Act, nor can they be notified as independent returned candidates in the Section 98
Notification.

55. Therefore, PTI's nominated candidates were wrongly shown independent candidates in
the list of contesting candidates (Form 33) by the Returning Officers and were also wrongly
notified as independent returned candidates in the Section-98 Notification by the
Commission.

Validity of party tickets issued by Mr. Gohar Ali Khan as Chairman PTI

56. Before parting with this part of the judgment, it is necessary to address an ancillary
point stated by the Commission in its order dated 2 February 2024 in rejecting Mr. Raja's
claim. The Commission maintained that since the election of Mr. Gohar Ali Khan as Chairman
of PTI had not been accepted by the Commission, he could not have issued the party ticket
to Mr. Raja. We find that the Commission failed to recognise that its order dated 22
December 2023 regarding the intra-party elections of PTI was not in force from 26
December 2023 (when the Peshawar High Court suspended the Commission's order) to 13
January 2024 (when this Court restored the Commission's order). During this period, Mr.
Gohar Ali Khan was holding the office of Chairman of PTI and had, therefore, validly issued
party tickets to PTI candidates, including Mr. Raja.

57. We may also underline here that, notwithstanding a political party's failure to comply
with the provisions of Section 209 of the Elections Act relating to its intra-party elections,
the political party remains an enlisted political party, fully functional for the purposes of its
formation, i.e., 'propagating or influencing political opinion and participating in elections for
any elective public office or for membership of a legislative body, including an Assembly, the
Senate, or local government.'47 The only consequence of not complying with the said
provisions of the Elections Act, as aforementioned, is that such a political party is not to be
allocated an election symbol. It would be completely illogical to assume that a political party,
a juristic person, is fully functional yet there are no natural persons who are either de facto
or de jure performing its functions and running its affairs. We all know that juristic persons
act through natural persons. An enlisted political party is a juristic person, and like other
juristic persons, it acts through natural persons. Saying that a political party is an enlisted
political party, fully functional for the purposes of its formation, yet there is no one that can
perform its functions and run its affairs, amounts to blowing hot and cold in the same breath
or approbating and reprobating one and the same fact. Therefore, after the intra-party
elections (which were not later accepted by the Commission), Mr. Gohar Ali Khan had
assumed at least de facto charge of PTI's functions and affairs as its Chairman. Consequently,
the acts performed by him on behalf of PTI before 13 January 2024, when this Court
restored the Commission's order dated 22 December 2023 declining to accept the intra-
party elections, were fully valid and effective.

58. It is further clarified that when the office-bearers of a political party are elected under
Section 208 of the Elections Act, in accordance with the party's constitution, and a certificate
to that effect is submitted to the Commission under Section 209, the newly elected office-
bearers de facto assume the functions of the party until the Commission accepts or rejects
the elections. Upon acceptance, they also assume the functions of the party de jure. In the
case of rejection of the intra-party elections, the previous office-bearers are reinstated, for
no political party, as held above, can exist without either de facto or de jure office-bearers to
perform its functions and manage its affairs. In this regard, the clarification dated 14
September 2024, passed by us on an application of the Commission, shall also be read as
part of this judgment and is reproduced hereunder for the completion of the record:

Through C.M.A. 7540/2024, and in terms [para 10] of the short order dated 12.07.2024
whereby these appeals were decided by majority ("Short Order") the Election Commission
of Pakistan ("Commission") purports to seek guidance on the point that "[i]n absence of a
valid organizational structure of Pakistan Tehreek-i-Insaf (PTI), who will confirm the political
affiliation of the returned candidates (MNAs and MPAs) on behalf of PTI, who have filed their
statements in light of the Supreme Court Order [dated 12 July 2024]." We may note that
other than a copy of the Short Order the application is bereft of any other documentation.

2. In reply to the above application, the PTI has filed C.M.A. 8139/2024, to which have
been annexed a number of documents, including correspondence between the PTI and the
Commission. We have considered the material that has been placed before us.

3. By way of brief recapitulation, in paragraphs 4 and 5 of the Short Order it has been
categorically declared that the lack or denial of an election symbol does not in any manner
affect the constitutional and legal rights of a political party to participate in an election
(whether general or bye) and to field candidates, and that for the purposes, and within the
meaning, of paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3)
of Article 106 of the Constitution of the Islamic Republic of Pakistan, PTI was and is a political
party, which secured or won (the two terms being interchangeable) general seats in the
National and Provincial Assemblies in the General Elections of 2024 as provided in that
Order. These paragraphs, and the preceding paragraph 3 of the Short Order, sound on the
constitutional plane, being the proper interpretation and understanding of the relevant
constitutional provisions. The other paragraphs of the Short Order, including in particular
paragraphs 8 and 10, are consequential upon what has been held and declared in the
paragraphs just noted, and flow and emanate from, and give effect to, constitutional
conclusions. All of these points will be explicated in the detailed reasons for the decision of
the majority (i.e., the Short Order), which is the binding judgment of the Court.

4. Turning now to the specific clarification purportedly sought, the PTI in its reply has
annexed a number of notices issued by the Commission to the PTI through Barrister Gohar
Ali Khan, in which it has itself identified the latter as the Chairman of PTI. Furthermore, the
certifications required to be issued by a political party (here the PTI) and filed with the
Commission in terms of paragraphs 8 and 10 of the Short Order have, as per the record
placed before us in relation to the returned candidates (now respectively MNAs and MPAs)
in the National and the Sindh, Punjab and Khyber Pakhtunkhwa Provincial Assemblies, been
issued under the signatures of Barrister Gohar Ali Khan and Mr. Omar Ayub Khan, who are
identified therein as being, respectively, the Chairman and Secretary General of the PTI.
These certifications are dated 18.07.2024, 24.07.2024 and 25.07.2024 and list, in each case,
the particulars of the relevant returned candidate (now MNA or MPA as the case may be)
and in particular the dates on which the declaration required of the candidate (again, in
terms of paragraphs 8 and 10 of the Short Order) was filed with the Commission. These
dates obviously all precede the respective dates of certification.

5. Putting together the record placed before us, and considering the same in the light of
the Short Order, leaves in little doubt that the clarification sought by the Commission in
terms of the C.M.A. 7540/2024 is nothing more than a contrived device and the adoption of
dilatory tactics, adopted to delay, defeat and obstruct implementation of the decision of the
Court. This cannot be countenanced. Even on the application of elementary principles of law,
the application filed by the Commission is misconceived. Having itself recognized Barrister
Gohar Ali Khan as the Chairman of PTI, the Commission cannot now turn around and
purport to seek guidance from the Court with regard to how the certifications are to be
dealt with. The Commission cannot approbate and reprobate, taking whatever (shifting)
stance as it desires and as may seem to suit its immediate purposes for the moment.
Furthermore, the Commission, even if one were to consider the application in the most
sympathetic light, has apparently forgotten the well known de facto doctrine or rule, in
terms of which the acts of a person who holds an office are protected even if there may be
(and no such conclusion is reached here in relation to the PTI) any issue with the position de
jure. It sufficed and the Commission was duty bound in terms of the Constitution to keep in
mind that the admitted position (as stated before the Court during the hearing of the
appeals) is that the PTI was, and is, an enlisted political party. This position was not only
accepted and relied upon by us (eight Judges) but also by our three learned colleagues in
minority (Hon'ble the Chief Justice, Justice Yahya Afridi and Justice Jamal Khan Mandokhail).
Their lordship appear to have also accepted the validity of the party certificates (party
tickets) issued by Barrister Gohar Ali Khan and thus his capacity to act for PTI as its
Chairman. Furthermore, having itself issued notices to the PTI through Barrister Gohar Ali
Khan as its Chairman, the Commission gave recognition to both the party and the office
holder. That sufficed absolutely for purposes of the Short Order. It would be completely
illogical to assume that a political party, a juristic person, is fully functional yet there are no
natural persons who are either de facto or de jure performing its functions or running its
affairs. Saying (as the Commission now in effect does through CMA 7540/2024) that a
political party is an enlisted political party, fully functional for the purposes of its formation,
yet there is no one that can perform its functions and run its affairs, amounts to blowing hot
and cold in the same breath or, as noted, approbating and reprobating one and the same
fact. There could have been no conceivable doubt that the certifications referred to above
were correct and valid in terms of the Short Order and the continued denial and refusal of
the Commission to accept the same, as and when filed, is constitutionally and legally
incorrect and may expose the Commission to such further or other action as may be
warranted in terms of the Constitution and the law.

6. But there is another, and more fundamental, aspect that must also be alluded to. It
was categorically declared in paragraph 8 of the Short Order that on filing the requisite
statement and its confirmation by the political party concerned, the seat secured by such
candidate shall be forthwith deemed to be a seat secured by that political party. Therefore,
upon submission of the declarations and certifications referred to above, the position of the
returned candidates (now respectively MNAs and MPAs) immediately and ipso facto stood
determined and fixed as a matter of law as on those dates and no subsequent act can alter
what became, on the respective dates, past and closed transactions. As per the position so
determined, the said returned candidates were and are the returned candidates of PTI and
thus members of the parliamentary party of PTI in the National Assembly and Provincial
Assemblies concerned, for all constitutional and legal purposes. The attempt by the
Commission to confuse and cloud what is otherwise absolutely clear as a matter of the
Constitution and the law must therefore be strongly deprecated. The list required to be
issued by the Commission in terms of paragraph 8 (read with paragraph 10) of the Short
Order is nothing more than a ministerial act, for the information and convenience of all
concerned, and has no substantive effect. Nonetheless, the continued failure of, and refusal
by, the Commission to perform this legally binding obligation may, as noted, have
consequences. This obligation must be discharged forthwith.

7. With the above clarifications, the present application is disposed of. Office shall
dispatch a copy of this order to the respective parties.

We may underline here that, as the Commission sought clarification of our short order dated
12 July 2024 in order to give effect to it, in terms of para 10 thereof, there was no legal
requirement, nor did we find it necessary, to hear the parties before clarifying our own order
on the point regarding which the Commission was unclear. Thus, we provided the above
clarification without issuing notice to, or hearing, the parties on the Commission's
application.

(iii) Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to political parties that
have contested for and won general seats or to all enlisted political parties?

59. This question was much debated during the arguments presented by the learned
counsel for the parties. It arises from their two rival contentions. The learned counsel for SIC
contended that Articles 51(6) (d) & (e) and 106(3)(c) of the Constitution refer to all enlisted
political parties that have "secured" general seats, either directly through their nominated
candidates or through the joining of independent returned candidates. Conversely, the
learned counsel for the Commission and other respondents argued that Articles 51(6) (d) &
(e) and 106(3) (c) of the Constitution refer only to those political parties that have contested
and won one or more general seats directly through their nominated candidates.

60. The provisions of Articles 51(6) (d) & (e) and 106(3) (c) of the Constitution are identical
in their wording; the only difference is in their application. Article 51(6) (d) & (e) relates and
applies to the seats reserved for women and non-Muslims in the National Assembly, while
Article 106(3)(c) relates and applies to such seats in the Provincial Assemblies. Therefore, we
shall discuss and determine the meaning of the provisions of Article 51(6) (d) & (e), which
shall also apply mutatis mutandis to Article 106(3) (c) of the Constitution. The provisions of
Articles 51(6) (d) & (e), along with other relevant clauses of the same Article, are reproduced
here for reading and reference:

51. (1) There shall be three hundred and thirty-six seats for members in the National
Assembly, including seats reserved for women and non-Muslims.

(2) .......
 (3) The seats in the National Assembly referred to in clause (1), except the seats
mentioned in clause (4), shall be allocated to each Province and the Federal Capital as under:
--

General Seats Women Seats Total Seats

Balochistan 16 4 20

Khyber Pakhtunkhwa 45 10 55

Punjab 141 32 173

Sindh 61 14 75

Federal Capital 3 - 3

Total 266 60 326

(3A) .......

(4) In addition to the number of seats referred to in clause (3), there shall be, in the
National Assembly, ten seats reserved for non-Muslims.

(5) .......

(6) For the purpose of election to the National Assembly, -

(a) .......

(b) each Province shall be a single constituency for all seats reserved for women which
are allocated to the respective Provinces under clause (3);

(c) the constituency for all seats reserved for non-Muslims shall be the whole country;

(d) members to the seats reserved for women which are allocated to a Province under
clause (3) shall be elected in accordance with law through proportional representation
system of political parties' lists of candidates on the basis of total number of general seats
secured by each political party from the Province concerned in the National Assembly:

Provided that for the purpose of this paragraph the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates; and

(e) members to the seats reserved for non-Muslims shall be elected in accordance with
law through proportional representation system of political parties' lists of candidates on the
basis of total number of general seats won by each political party in the National Assembly:
 Provided that for the purpose of this paragraph the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates.

(Emphasis added)

A plain, literal reading of the above provisions of Article 51 of the Constitution shows that
there are three hundred and thirty-six (336) seats for members in the National Assembly,
including sixty (60) seats reserved for women and ten (10) for non-Muslims. Each Province is
a single and separate constituency for all seats reserved for women allocated to that
Province in the National Assembly, while the constituency for all seats reserved for non-
Muslims is the whole country. Members for both the seats reserved for women and non-
Muslims are elected in accordance with the law through a proportional representation
system of political parties from the lists of their candidates. However, because of the said
difference in constituencies, members to the seats reserved for women are elected on the
basis of the total number of general seats secured by each political party in the National
Assembly from the Province concerned, while members to the seats reserved for non-
Muslims are elected on the basis of the total number of general seats won by each political
party in the whole National Assembly irrespective of the Province from which it wins such
general seats. The total number of general seats won by a political party, for the purpose of
determining its share in the proportional representation system, includes independent
returned candidate(s) who may duly join such political party within three days of the
publication of the names of the returned candidates in the official Gazette.

61. In support of his contention, the learned counsel for SIC argued that the proviso to
Article 51(6) (d), which allows independent returned candidates to join a political party,
makes it possible for a political party that has not contested and won any general seats
directly through its nominated candidates to "secure" some general seats from the Province
concerned through the joining of independent returned candidates. He emphasised the use
of the word "secured" in Article 51(6) (d) rather than the word "won".

62. We have observed that the main provisions of paragraph (e) of Article 51(6) and the
proviso thereof, which pertains to seats reserved for non-Muslims, both use the word "won"
instead of "secured". This paragraph is to be interpreted in conjunction with paragraph (d) of
Article 51(6), which relates to seats reserved for women, as no argument was presented to
us from any of the learned counsel for the parties suggesting that paragraph (e) should be
interpreted differently from paragraph (d). Nor do we find any reason or logic to interpret
them differently. The only difference between them, as noted above, is with regard to the
constituencies: for the election of members to seats reserved for women, each Province is a
single and separate constituency, while for the election of members to seats reserved for
non-Muslims, the whole country is the constituency. Furthermore, the term "won" is used in
the provisos to both paragraphs (d) and (e) of Article 51(6). Considering both these closely
related provisions conjunctively and harmoniously, we find that the words "secured" and
"won" have been used interchangeably. Thus, nothing turns on the use of the word
"secured" in paragraph (d) of Article 51(6).

Presumption that same words used in a statute carry same meaning and different words
different meanings, is not absolute.

63. Although it is reasonable to presume that the same meaning is implied by the use of the
same word in every part of a statute or a section thereof and that a change of word denotes
a change in meaning, the presumption is neither absolute nor determinative in all cases. The
context takes precedence over this presumption in ascertaining the meaning of words used
in a statute, as even the statutory definitions of the words and expressions are subject to
this consideration. Therefore, it is quite possible that the same word may be used in
different meanings in a statute or in a section of the statute, or, conversely, different words
may be used for the same meaning. The causes for this may be various, as pointed out by
Maxwell and Bennion, including that the statute is a consolidating enactment where the
words are derived from two or more earlier enactments, or the statute is compiled from
different sources, or the statute is the product of many minds jointly, or the statute
undergoes alterations and additions from various hands in the process of its enactment in
the Legislature, etc.48

Words "secured" and "won" carry the same meaning in paragraph (d) of Article 51(6) and
have been used interchangeably in its main provisions and proviso.

64. We find that a similar circumstance might have caused the use of different words in the
main provisions of Article 51(6) (d) and the proviso thereto for the same meaning-the word
"secured" in the main provisions of paragraph (d) of Article 51(6) and the word "won" in the
proviso thereto-either because both have been compiled from different sources or because
different minds produced each of them. The legislative intention to mean "won" by both
expressions is explicitly evident from the use of the word "won" both in the main provisions
of the closely related paragraph (e) of Article 51(6) as well as in the proviso thereto. Even the
drafter of the proviso to paragraph (d) of Article 51(6) appears to have assumed that the
word "won" had been used in the main provisions, as he referred to them as such in the
proviso. Therefore, it can be concluded with reasonable certainty that the words "secured"
and "won" carry the same meaning in paragraph (d) of Article 51(6) and have been used
interchangeably in its main provisions and proviso.

65. Once we have concluded that the words "secured" and "won" carry the same meaning
in paragraph (d) of Article 51(6) and have been used interchangeably in its main provisions
and proviso, the word "won" being specific and clearer than the word "secured" must be our
guide in construing the provisions of the said Article. Because when a statute, or any other
instrument, uses two different words for the same meaning and any ambiguity arises as to
the meaning of one of those words, the word which is specific and clearer should guide the
interpretation of the general and obscure word, not vice versa. So read, the main provisions
of paragraph (d) of Article 51(6) clearly refer to political parties that have "won" general
seats in the National Assembly from the Province concerned. The consequential point, which
hardly requires extensive supporting arguments, emerges inevitably that political parties win
general seats by contesting for such seats through their nominated candidates.

66. Learned counsel for SIC did not dispute that political parties win general seats by
contesting for such seats through their nominated candidates. His argument was that the
proviso equates a political party that secures general seats by the joining of independent
returned candidates with one that wins such seats directly through its nominated candidates
as mentioned in the main provisions of paragraph (d) of Article 51(d). We are not impressed
by this argument as it misconceives the subject and object of the proviso.

The subject and object of the proviso to Article 51(6)(d)

67. The subject and focus of the proviso, as we understand it, is on the "general seats" i.e.,
"general seats won (secured) by a political party", and not on the political party winning
(securing) such seats. Its object is to prescribe how the "total number of general seats won
(secured) by a political party" is to be determined for the purpose of the paragraph, not to
define or explain political parties for the purpose of the paragraph. Had the proviso stated
that, for the purpose of this paragraph, the political party winning general seats shall include
a political party securing general seats by the joining of independent returned candidates,
the argument would have had some weight. But the language of the proviso is not to this
effect. The proviso does not in any way extend or explain the meaning of the expression
"political party" as used in the main provisions of the paragraph.

The proviso to Article 51(6)(d) is not a true proviso

68. A true proviso, as is well established, serves as an exception to the main provisions to
which it is added. It excepts a particular case from the rule stated in the main provisions by
limiting or qualifying the applicability of the main provisions. Its effect is generally described
as being that, but for the proviso, the main provisions would have included the subject
matter of the proviso.49 However, since it is not the form but the substance that matters, the
clear language of both the main provisions and the proviso may establish, as held by this
Court in Hamdard Dawakhana,50 that the proviso is not a limiting or qualifying clause of the
main provisions but is, in itself, a substantive provision. Therefore, the best principle is that
irrespective of the label, the contents of the main provisions and the proviso are to be read
and construed together to ascertain the intention of the Legislature.

69. For determining the true character of the proviso presently under consideration, we find
the Privy Council's case of Atwill51 very enlightening. In that case, their Lordships of the Privy
Council overturned the decision of the High Court of Australia, which had treated the
proviso in its classic meaning, i.e., limiting or qualifying what precedes it. Their Lordships of
the Privy Council did not agree and remarked:
 While in many cases that is the function of a proviso, it is the substance and content of
the enactment, not its form, which has to be considered, and that which is expressed to be a
proviso may itself add to and not merely limit or qualify that which precedes it.

…….

In a strict sense the use of the words "Provided that" in section 102(a) may also be
disregarded as inapt. The meaning of that provision and the proviso would be the same if
instead of the words "Provided that" there had appeared the word "and" ... and to ascertain
the true effect of the provision, the second part, that is to say, the proviso, is complementary
and necessary in order to ascertain the full intention of the Legislature.

To strengthen their opinion, their Lordships cited the following observation of Lord
Loreburn, L.C., made in the case of Taff Vale Railway Company:52

But it is also true that the latter half of it, though in form a proviso, is in substance a
fresh enactment, adding to and not merely qualifying that which goes before.

Their Lordships also cited extensively similar observations made by Viscount Maugham and
Lord Wright in the case of Jennings,53 on determining the true meaning of a proviso.

70. We find that the observations made by their Lordships of the Privy Council in Atwill fully
apply to the proviso presently under consideration. In our opinion, the meaning of the main
provisions of paragraph (d) of Article 51(6) and the proviso thereto would be the same if
instead of the words "Provided that", there had appeared the word "and". In our considered
opinion, to determine the true effect of the main provisions as per the intention of the
Legislature, the second part, i.e., the proviso, is to be read as complementary to, not limiting
or qualifying, the first part, i.e., the main provisions. This approach is also consistent with
the principle stated above that irrespective of the label, the contents of the main provisions
and the proviso are to be read and construed together to ascertain the intention of the
Legislature.

71. We have determined above that the main provisions of para-graph (d) of Article 51(6)
refer to political parties that have won general seats in the National Assembly from the
Province concerned through their nominated candidates. The proviso stipulates that for the
purpose of this paragraph, the total number of general seats won by a political party shall
include any independent returned candidate or candidates who may duly join such political
party. Without the proviso, the general seats won by independent returned candidates could
not be considered as seats won by a political party. Therefore, the proviso, in the words of
Lord Loreburn, 'is in substance a fresh enactment, adding to and not merely [limiting or]
qualifying that which goes before' in the main provisions. Since the proviso does not except
anything from the main provisions of paragraph (d) of Article 51(6) by limiting or qualifying
them but rather adds to them, it is not a true proviso but a substantive provision that enacts
a matter which would not otherwise have been covered by the main provisions of the
paragraph.
72. However, the latter part of the proviso is, in the true sense, a proviso as it qualifies that
which goes before, i.e., including the seats of independent returned candidates in the seats
won by the political party to which they join, for the purpose of the paragraph. According to
this part, for the joining to have the stipulated effect, it must occur within three days of the
publication of the names of the returned candidates in the official Gazette. It thus excludes
any joining of independent returned candidates made beyond that period from having effect
for the purpose of the paragraph.

The effect of the use of the word "such" with "political party" in the latter part of the proviso

73. It is also a general rule of literal construction of statutes that 'a qualifying or relative
word, phrase, or clause, such as "which", "said" and "such", is to be construed as applying to
the word, phrase or clause next preceding, or as is frequently stated, to the next preceding
antecedent, and not as extending to or including others more remote, unless a contrary
intention appears.'54

74. The latter part of the proviso uses the qualifying term "such political party", to which
the independent returned candidate or candidates may duly join. When we apply the above
general rule to this qualifying term, it becomes evident that it refers to the term "a political
party" next preceding, where the noun "political party" has

been used to denote a political party that has won general seats. It thus inevitably follows
that for the purpose of paragraph (d) of Article 51(6) and within the scope of the proviso,
the independent returned candidate or candidates may duly join, or be allowed to join, only
such a political party that has won one or more general seats through its nominated
candidates in the National Assembly from the Province concerned.

Harmonious reading of Article 51(6(d) with Article 63A(2)

75. A constitution, as defined by Cooley, is 'the fundamental

law of a state, containing the principles upon which the government

is founded, regulating the division of the sovereign powers, and

directing to what persons each of these powers is to be confined, and the manner in which it
is to be exercised.'55 Therefore, it is a fundamental principle of constitutional construction,
well entrenched in our constitutional jurisprudence, that a constitution must be construed
as an organic whole, harmonising its various parts, particularly those closely interlinked, and
trying to give due effect to all of them, so as to make it an effective and efficacious
instrument for the smooth and good governance of the state-one of the ultimate objectives
sought to be achieved by it.56

76. In view of this principle of constitutional construction, the learned Attorney-General for
Pakistan drew our attention to the provisions of clause (2) of Article 63A, which defines a
member of a Parliamentary Party and also sheds light on how a political party constitutes a
Parliamentary Party. Relying upon these provisions of Article 63A, he argued that only a
political party whose nominated candidates become members of a House constitutes a
Parliamentary Party. Therefore, he contended, the same meaning ought to be given to the
expression 'political party' in clause (d) of Article 51(6), to harmonise both provisions with
each other.

77. We have given anxious consideration to his contention and found it very persuasive and
harmonious with the view which we are inclined to take on the meaning of the term
"political party" used in Article 51(6)(d). The provisions of clause (2) of Article 63A are
reproduced here for ready reference:

(2) A member of a House shall be deemed to be a member of a Parliamentary Party if

he, having been elected as a candidate or nominee of a political party which constitutes the
Parliamentary Party in the House or, having been elected otherwise than as a candidate or
nominee of a political party, has become a member of such Parliamentary Party after such
election by means of a declaration in writing.

A bare reading of the above provisions shows that a member of a House becomes a member
of a Parliamentary Party in two cases: (i) if he has been elected as a candidate or nominee of
a political party which constitutes the Parliamentary Party, he automatically becomes a
member of such Parliamentary Party, or (ii) if he, having been elected as an independent
candidate (i.e., otherwise than as a candidate or nominee of a political party), joins such
Parliamentary Party by means of a declaration in writing.

78. The qualifying term "such Parliamentary Party", as discussed above, refers to the term
"Parliamentary Party" next preceding, where the noun "Parliamentary Party" has been used
to denote a political party whose candidate or nominee has been elected as a member of a
House. It is thus evident that in the first case, one action of becoming a member of a House
as a candidate or nominee of a political party produces two results: (i) it makes a political
party, whose candidate or nominee is elected as a member of a House, a Parliamentary
Party, and (ii) it makes that member of a House, a member of such Parliamentary Party. A
member of a House elected as an independent candidate can become a member of a
Parliamentary Party by joining only such a political party that constitutes a Parliamentary
Party, not a political party that does not constitute a Parliamentary Party. Notwithstanding
joining a political party of latter type, a member of a House shall not become a member of a
Parliamentary Party and shall remain an independent member of a House for the purpose of
all parliamentary proceedings.

Answer to question (iii) and its applicability to SIC and PTI

79. Thus, both the standalone reading of the provisions of Articles 51(6) (d) and (e), as well
as their conjunctive and harmonious reading with the provisions of Article 63A(2), lead to
one and only irresistible conclusion in terms of which this question is answered: Article 51(6)
(d) of the Constitution refers to political parties that have contested for and won one or
more general seats in the National Assembly from the Province concerned, not to all enlisted
political parties. Similarly, Article 51(6) (e) of the Constitution refers to political parties that
have contested for and won one or more general seats in the National Assembly from the
whole country, i.e., from any of the Provinces or the Federal Capital.

80. Since SIC has not contested for and won one or more general seats in the National
Assembly from the Provinces concerned or from anywhere in the country, it is not such a
political party to which any of the independent returned candidates can join, for the
purposes of paragraphs (d) and (e) of Article 51(6) of the Constitution. Therefore, the act of
joining it by some returned candidates has not produced any result, and the legal status of
such returned candidates remains the same as it was before such an act. As SIC has not won
general seats, it is not entitled to allocation of the disputed reserved seats. However, as shall
be mentioned later in detail, it has been determined by eleven members of the Bench with
varying figures that PTI has contested for and won some general seats in the National
Assembly from the Provinces concerned, and it is a political party entitled to allocation of
the disputed reserved seats under paragraphs (d) and (e) of Article 51(6) of the Constitution.

(iv) How is the proportional representation of a political party to be calculated for the
allocation of reserved seats under Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution?

81. This was perhaps the most debated and, if we may say so, the most challenging question
involved in the case. Because of the illegal mentioning of contesting candidates of a political
party (PTI) in the list of contesting candidates (Form-33) and its returned candidates as
independent returned candidates in the Section-98 Notification, as held above, an unusual
situation has arisen in a parliamentary democracy. This situation seemingly pits one of the
fundamental principles of democracy-that the voice of the electorate should be truly
reflected in the composition of the legislative bodies-against the constitutional objective of
ensuring adequate representation of women and minorities (non-Muslims) in such
bodies.57 However, with the answers provided to questions (i), (ii) and (iii) above, it has
become evident that this conflict does not actually arise.

Position of political parties and independent members of Parliament in a parliamentary

democracy

82. Our Constitution, as held by this Court in Benazir Bhutto,58 establishes a parliamentary
democracy with a cabinet form of government, which is primarily composed of the
representatives of the political party in majority. Therefore, the cabinet form of government
is essentially a government of the political party in majority, or of political parties in the case
of a coalition government. The political party or parties that form the Government are the
connecting link between the Government (Executive) and the people, and between the
Parliament (Legislature) and the people. They are the effective instrumentalities by which
the will of the people is made vocal, and the enactment of laws and the governance of the
country in accordance therewith made possible. Political parties form the bedrock of
representation in a parliamentary democracy and are fundamental, constitutive components
of representation, not mere accessories.59

83. In the usual course of a parliamentary democracy, competing political parties,

advocating for different manifestos, make the parliamentary election meaningful by giving
voters a choice. They convert the results of a parliamentary election into a government The
party or parties in the majority form the Government, while the party or parties in the
minority serve as a fervent opposition. The opposition criticises the policies and actions of
the Government and thus calls the Government to justify its policies and actions, thereby
making it accountable to the people. Therefore, political parties are institutions of great
importance in a parliamentary democracy and a vital feature of a representative
government.60

84. On the other hand, persons elected as members of a House of Parliament (Legislature)
in their personal capacities, as independent candidates, in the words of Nasim Hassan Shah,
J., 'just toss around on the political scene, rudderless and without a destination'. 61 It is only
when they join a political party that they become a force capable of exercising some
influence through their activities for the welfare of the constituencies and the public they
represent in Parliament. They, as members of a political party, and not as independent
members of Parliament, can best achieve the objective of effectively representing their
constituencies in Parliament---whether in legislative business and forming executive policies
or taking executive actions if they become part of a party in government, or by holding the
Government accountable for its policies and actions if they are part of a party in opposition.

85. The above position of political parties and that of the independent members of
Parliament in a parliamentary democracy, such as ours, guides our understanding of the
procedure prescribed for the allocation of the reserved seats.

86. As evident from the above-cited provisions of Article 51 of the Constitution, clause (3)
thereof allocates the specific number of seats reserved for women to each Province and
clause (6) (d) provides the procedure for electing the members to those seats. A joint
reading of both clauses makes it clear that the members to all the reserved seats allocated
to a Province under clause (3) are to be elected under clause (6) (d) of Article 51 as per the
proportional representation system of political parties from the lists of their candidates on
the basis of total number of general seats won by each political party, and no reserved seat
shall ordinarily remain vacant. Although the arguments before us presented divergent
contentions on the meaning of the expression "political party" used in clause (6)(d), none
disputed the proposition that only political parties, not independent returned candidates,
are entitled to the allocation of the reserved seats. Independent returned candidates can
only be counted towards the proportional representation if they act in accordance with the
proviso and join a political party, in which case their seats shall be counted as the seats of
the political parties to which they join for the purpose of determining the proportional
representation of political parties.
Proportional representation system of political parties is a composite expression

87. A composite expression, as Bennion writes,62 must be construed as a whole. While a

certain meaning can be collected by taking each word in turn and then combining their
several meanings, but it does not follow that this is the true meaning of the whole phrase.
Each word in the phrase may modify the meaning of the others, giving the whole its own
meaning. It, therefore, certainly is not a satisfactory method of arriving at the meaning of a
compound phrase to sever it into several parts, as observed by Lord Halsbury,63 and to
construe it by the separate meaning of each of such parts when severed. The intention of
the Legislature is to be discovered by taking the words as they occur---in the combination in
which they are placed---not by breaking up a compound expression and weighing the words
separately.64 If a composite expression is comprehensive, it is unnecessary to determine the
dividing line between different terms used in the expression.

88. The provisions of paragraph (d) of Article 51(6), when read in light of the above
principles of interpreting a composite expression, remove the confusion that dwelled in the
minds of some of us regarding the meaning and scope of the "proportional representation
system" envisaged by that paragraph. The complete and composite expression used in the
said paragraph is "proportional representation system of political parties". The expression
"lists of candidates", annexed to it with an apostrophe, only provides the mechanism for
electing members to the reserved seats from the lists of candidates of the political parties.
So read, the provisions of paragraph (d) of Article 51(6) become consistent with the above-
stated legal position that the members to all the reserved seats allocated to a Province
under clause (3) are to be elected under clause (6) (d) of Article 51 as per the proportional
representation system of political parties from the lists of their candidates on the basis of
total number of general seats won by each political party, ensuring that no reserved seat
ordinarily remains vacant.

Constitutional objective of providing seats reserved for women and non-Muslims

89. The Principles of Policy provided in Chapter 2 of Part II of the Constitution, often
referred to as the conscience of the Constitution,65 require that steps be taken to ensure the
full participation of women in all spheres of national life and to safeguard the legitimate
rights and interests of minorities (non-Muslims), including their due representation in the
Federal and Provincial services.66 To actualise this constitutional objective, a certain number
of seats have been reserved in the National Assembly and Provincial Assemblies for women
and non-Muslims (minorities). This constitutional affirmative action aims to promote gender
and minority-inclusive representation in the legislative bodies, allowing for the voices of
various segments of society to be heard and considered in the law-making process. It
ensures that the legislative bodies reflect the diverse perspectives and interests of the
population.

90. The principle of proportional representation of political parties, according to which the
members to the reserved seats are elected, aims to reflect the electoral support for political
parties in the composition of the legislative bodies. By distributing the reserved seats among
political parties based on the general seats won by them, the legislative bodies remain
representative of the electorate's choice. Adopting an interpretation of paragraphs (d) and
(e) of Article 51(6) that would result in holding certain reserved seats vacant would lead to a
form of disenfranchisement, where the electorate's mandate is not fully realised in terms of
gender and minority representation, and thus frustrate the constitutional objective of
providing for such reserved seats.

91. Rule 95(2) of the Elections Rules, which provides that the seats won by independent
candidates, other than those who join a political party, shall be excluded for the purpose of
determining the share of each political party, is thus found consistent with the constitutional
provisions, as it ensures the constitutional objective that no reserved seat should ordinarily
remain vacant.

Answer to question (iv), and its applicability to PTI and other political parties

92. In view of the above, question (iv) is answered as follows: for the purpose of allocating
reserved seats under Articles 51(6) (d) & (e), the proportional representation of political
parties is to be calculated on the basis of total number of general seats won by each political
party, including the seats of independent returned candidates who join it, but excluding the
seats of other independent returned candidates. The Commission is to calculate the share of
proportional representation of PTI and other political parties in the reserved seats
accordingly.

Denial of due share of proportional representation in the reserved seats violates the
fundamental rights of the political party and the electorate guaranteed by Articles 17(2) and
19 of the Constitution.

93. Before parting with this part of the judgment, we want to underline that the
aforementioned principle of holistic and harmonious reading of closely interlinked provisions
of the Constitution requires that the provisions of paragraphs (d) and (e) of Article 51 are to
be read not only in conjunction with Article 63A(2) but also with Article 17(2) of the
Constitution, which is also closely related thereto. As aforementioned, this Court has held in
the cases of Benazir Bhutto and Nawaz Sharif that the right to form a political party
guaranteed by Article 17(2) includes the right to participate in and contest elections as a
political party, and the right to form the Government and complete the prescribed tenure if
the members of the political party constitute the requisite majority. We find that the right to
so many of the reserved seats that are proportionate to the general seats won by a political
party is also an integral part of the right to form a political party, as this right also gives the
"life and substance" to the said named fundamental right. Therefore, denial of the right to
reserved seats proportionate to the general seats won by it would violate the fundamental
rights of a political party guaranteed by Article 17(2) as well as the fundamental right to vote
of the electorate that have voted for such political party guaranteed by Article 19 of the
Constitution.
What relief would serve the ends of justice?

94. Having thus answered the questions of law, we shall now examine what relief would
serve the ends of justice in the peculiar facts and circumstances of this case. When we speak
of justice, we have the intuitive sense of putting things aright and in their appropriate place,
of re-establishing a lost harmony and equilibrium, of remaining true to the nature of things,
of giving each his due.67 In this regard, we are also guided by the following golden words of
Kaikaus, J., written in Imtiaz Ahmad:68

Any [justice] system, which by giving effect to the form and not to the substance defeats
substantive rights, is defective to that extent. The ideal must always be a [justice] system
that gives to every person what is his.

His lordship further observed:

I am unable to place the mistakes committed by the Administration [public

functionaries] on the same footing as mere accidents. The difference is that in one case the
harm caused to a party being the result of a mistake committed by the Administration there
is an obligation on our part to undo it as far as that is possible. ... In relation to Courts there
is a well-known saying that the act of Court will not prejudice anybody. I do not see why the
principle of this maxim does not apply to the whole machinery of the Administration [public
functionaries] of which the Courts are only a part. No mistake committed by this machinery
should prejudice any person as far as that can be helped. If the mistake of the election
authorities is like a misfortune why are elections set aside on the ground of irregularities
committed by the officers who conduct the elections? Why does not the law regard these
irregularities like events, which have happened and cannot be helped? It cannot be the
intention of the law that rights of persons should be affected by the mistakes committed by
public officers. ... We must put the parties in the same position, as they would have been if
no mistake had been committed by the administration as long as we can do that.

(Emphasis added)

The above principle of law, though enunciated by his Lordship in a dissenting judgment, has
appealed "to the brooding spirit of the law, to the intelligence of a future day" and has now
become well established and well entrenched in our jurisprudence.69

95. We find that the said principle is not only premised on two maxims: (i) actus curiae
neminem gravabit (an act of court [public functionary] shall prejudice no one) and (ii) ex
debito justitiae (as a debt of justice), but are also rooted in the constitutional provisions of
Article 4 of the Constitution. Under Article 4, it is an inalienable right of every citizen, and of
every other person for the time being within Pakistan, to enjoy the protection of law and to
be treated in accordance with law. This constitutional inalienable right casts a corresponding
constitutional inalienable duty on all public functionaries of Pakistan to treat every citizen
and every other person for the time being within Pakistan in accordance with law. From this
constitutional right and the corresponding constitutional obligation, the principle emerges,
in our opinion, that no person should be made to suffer or be prejudiced by an unlawful act
or omission of public functionaries. If any person suffers the loss of any right or benefit
because of an unlawful act or omission of a public functionary, he is entitled, by reason of an
obligation of justice, to be restored to that right or benefit and put in the same position,
insofar as is possible, as he would have been if such unlawful act or omission had not been
made by the public functionary.

Unlawful acts and omissions of the Returning Officers and the Commission that caused
prejudice to PTI

96. In the present case, as discussed and determined above, the unlawful acts and
omissions of the Returning Officers and the Commission, which have caused confusion and
prejudice to PTI, its candidates and the electorate who voted for PTI, are numerous and
include the following:

(i) the wrong omission to clarify in its order dated 22 December 2023 by the Commission
that PTI is an enlisted and functioning political party notwithstanding the rejection of its
intra-party elections and non-allocation an election symbol;

(ii) the wrong omission to clarify in its order dated 13 January 2024 by the Commission
that PTI is an enlisted and functioning political party notwithstanding that it has not been
allocated an election symbol, and that the candidates nominated by it are to be treated and
mentioned as PTI candidates, not as independent candidates in the whole election process;

(ii)(sic) the wrong mentioning of the status of PTI candidates by the Returning Officers as
independent candidates in the list of contesting candidates (Form-33);

(iii) the wrong decision on the application of a PTI candidate (Mr. Raja) by the
Commission in rejecting his claim to be mentioned as a PTI candidate in the list of contesting
candidates (Form-33);

(iv) the wrong mentioning of PTI returned candidates by the Commission as independent
returned candidates in the Section 98 Notification; and

(v) the wrong acceptance of the joining of some returned candidates to SIC by the
Commission, despite that it was not such a political party to which an independent returned
candidate could join under the proviso to paragraphs (d) & (e) of Article 51(6) and paragraph
(c) of Article 106(3), or under clause (2) of Article 63A of the Constitution.

In addition to the above, the making of an unconstitutional rule, i.e., the Explanation to Rule
94 of the Elections Rules, by the Commission which disentitles a political party to which an
election symbol is not allotted from the allocation of reserved seats despite its winning the
general seats, also contributed to causing confusion and prejudice to PTI, its candidates and
the electorate. Further, it is observed with respect, the decision by this Court on 13 January
2024 in the matter of intra-party elections of PTI on the very day that was fixed for
submission of party certificates (party tickets) and allotment of the election symbols as per
the Election Programme, and that too without clarifying that the said decision did not affect
the electoral status of PTI and its candidates, also contributed in causing confusing and
prejudice to PTI, its candidates and the electorate.

The scope of powers of the Commission under Article 218(3) and of the Supreme Court
under Article 187(1) of the Constitution.

97. In view of the principle stated above, PTI, its candidates and the electorate should not be
made to suffer or be prejudiced by the unlawful acts or omissions of public functionaries,
namely the Returning Officers and the Commission. Given that they have been deprived of
their constitutional right to proportional representation in the reserved seats due to these
unlawful acts and omissions, they are entitled, by virtue of an obligation of justice (ex debito
justitiae), to be restored to that right and placed, insofar as possible, in the same position
they would have been if such unlawful acts and omissions had not occurred. However, there
is no specific provision in the Constitution or the Elections Act to address this situation and
rectify the wrong.

98. Since the Legislature, while enacting a law on a subject, cannot foresee and cover all
unforeseen matters or issues that may arise in the administration of such law in practice, it
often enacts a provision that confers upon a specified authority the general power to
address such unforeseen matters or issues. In the Elections Act, such a general

power is conferred upon the Commission by Sections 4 and 8(c).70

These statutory general powers are conferred upon the Commission, in addition to the
similar constitutional general power vested in it

under Article 218(3)71 of the Constitution. Both these statutory and constitutional general
powers are to be invoked and exercised by the Commission, as held by this Court in Zulfiqar
Bhatti,72 when there is no specific provision of law on the matter or issue that needs to be
addressed.

99. Similar is the scope of the constitutional general power of the Supreme Court under
Article 187(1)73 of the Constitution: it is to be invoked and exercised by the Court to do
complete justice in any case when there is no specific provision of law that covers or
addresses the matter or issue involved.74 While exercising such general powers, the
Commission or the Court must, however, make an endeavour to

adhere to the spirit and substance of the provisions of law that, although not covering the
matter or issue, are closely related to it, so that the legislative intent may be given effect to
the maximum extent possible.

100. In order to invoke and exercise the general power vested in this Court under
Article 187(1) of the Constitution to address the matter involved in the present case, we
have also been guided by the observations made by a six-member larger Bench of this Court
in Saddaqat Khan.75 After a detailed analysis of several previous cases, the larger Bench
reached and announced the following conclusion:

The ultimate goal sought to be achieved by the courts was thus to do complete justice
between the parties and to ensure that the rights were delivered to those to whom they
belonged and no hurdles were ever considered strong enough to detract the Courts from
reaching the said end. Incorporation of provisions such as section 151, C.P.C.; section 561-A
in the Cr.P.C.; revisional powers of wide amplitude exercisable even suo-motu under section
115 of the C.P.C. and section 439 of the Cr.P.C.; various provisions of the like contained in
Order XLI, rule 4 and Order XLI, rule 33 of the C.P.C.; the provisions of Order XXXIII, rule 5 of
the Supreme Court Rules of 1980; suo motu powers exercisable under Article 184(3) of the
Constitution and provisions of Article 187 of the Constitution, are some of the examples
which could be quoted as having been made available to the Courts at all levels to surmount
any impediments which a Court might confront in the path of doing complete justice.

The ultimate objective sought to be achieved by laws, the courts and the justice system, as
observed by Kaikaus, J., and as declared by the larger Bench, is to dispense justice by
ensuring that rights are delivered to those to whom they belong; let justice be done, though
the heavens fall (fiat justitia, ruat caelum). Thus, the power under Article 187(1) of the
Constitution is focused on achieving and prioritizing fairness to ensure complete justice in
any case.

Point of divergence between eight Judges and three Judges

101. Up to this point, in invoking and exercising the general power of this Court vested
in Article 187(1) of the Constitution, we (the eight Judges) and the three Judges (Hon'ble the
Chief Justice, Justice Yahya Afridi, and Justice Jamal Khan Mandokhail) were largely aligned.
Unfortunately, from this point onward, despite several mutual discussions on various aspects
of the matter, we could not reach a consensus on what ultimate relief would be "necessary
for doing complete justice" in the present case.

102. We may underscore here what Chief Justice Dickson said about the working of
the Supreme Court of Canada: "The people of Canada are not entitled to nine separate votes
[of the nine Supreme Court Justices]. They are entitled to nine votes after each Justice has
listened to and sincerely considered the views of the other eight."76 Similarly, we believe, the
people of Pakistan are entitled to a decision from a Bench of this Court after each Judge on
the Bench has listened to and sincerely considered the views of the others. Judges need not
always see eye to eye and may ultimately disagree, but the possibility of disagreement does
not absolve them from engaging in a free and frank discussion before rendering their final
opinion. Their professional responsibility to deliver a well-considered decision requires them
to lay out both their own position and the defects they see in their colleagues' positions with
utter frankness. Egos may be bruised, tempers tempted, yet all must pursue the process with
respect and civility.
103. Guided by the above principle, we, in fulfilling our professional responsibility to
deliver a well-considered decision on the matter involved in the present case, laid out both
our own position and, with respect, the defects we saw in our colleagues' positions. We did
listen to and sincerely consider their views as well. Unfortunately, neither could we convince
them of our view, nor could we bring ourselves to agree with theirs.

104. We all (us eight and our three colleagues) agreed that due to unlawful acts and
omissions of the Returning Officers and the Commission, PTI, its candidates and the
electorate have suffered the loss of some of their constitutional and statutory rights,
particularly their right to proportional representation in the reserved seats. However, we
differed on how we could, by virtue of an obligation of justice (ex debito justitiae), restore
them to that right and place them, insofar as possible, in the same position they would have
been if such unlawful acts and omissions had not occurred.

105. Our learned colleagues (Hon'ble the Chief Justice and Justice Jamal Khan
Mandokhail) have formed the opinion that "the candidates who had submitted their
nomination papers declaring that they belonged to PTI and had not filed a document
showing affiliation with another political party before the last date of withdrawal of the
nomination papers, should have been treated77" as PTI returned candidates. Whereas our
learned colleague (Justice Yahya Afridi) is of the view that "[a] candidate for a seat in the
National Assembly or the Provincial Assembly, who in his/her nomination paper has
declared on oath to belong to PTI and duly submitted a certificate of the same political party
confirming that he/she is the nominated candidate of PTI for the respective constituency,
shall remain so ,... unless he/she submitted a written declaration to the Election Commission
of Pakistan or Returning Officer to be treated as the candidate of another political party or
as an independent candidate78". We respect their opinions but disagree.

106. '[T]he logic of words should yield to the logic of realities'.79 With great respect,
our learned colleagues have assumed and accepted that PTI candidates filed declarations of
their affiliation with another political party (PTI-Nazriati), which were not even accepted by
the Returning Officers under the order of the Commission, by their own free will
uninfluenced by any constraint of the circumstances. Our conscience and understanding of
the realities of the case do not allow us to assume and accept this position. We are
completely at a loss to understand the logic, other than the constraint of the circumstances,
as to why a candidate of a national-level political party (PTI), which had once formed the
Federal Government and two Provincial Governments, would supersede his candidature of
that party (PTI) with a party (PTI-Nazriati) whose name had not even been heard by most of
the electorate, or why he would leave the candidature of that party (PTI) and become an
independent candidate, by his own free will. Had it been a case of one or two candidates,
we might have imagined some plausibility of free will in their actions. However, we cannot
assume by any stretch of the imagination that hundreds of candidates for the National
Assembly and the Provincial Assemblies would act in such a manner by their own free will,
not under the constraints of the circumstances created by the unlawful acts and omissions
of the public functionaries---the Returning Officers and the Commission. Therefore, we have
found that notwithstanding their subsequent filing of a declaration to be treated as
candidates of PTI-Nazriati or as independent candidates, 39 returned candidates, out of the
list of 80 submitted by the Commission, who had either filed party certificates (party tickets)
of PTI or declared their affiliation with PTI in their nomination forms or statutory
declarations/ affidavits, are the returned candidates of PTI.

107. Similar is the position of those candidates whom our learned colleagues have
treated as independent returned candidates because they had not mentioned themselves as
belonging to PTI in their nomination papers. In respect of these candidates, who are 41
according to the record produced by the Commission, our learned colleagues have
presumed that they were independent candidates, and that none of them has appeared
before the Court to rebut that presumption.

108. We must say that we tried hard to understand how, in a parliamentary democracy
based on a political parties system, as underlined by this Court in Benazir Bhutto, such a
large number of candidates to the seats in the National Assembly and the Provincial
Assemblies could inspire and win the confidence of the electorate as independents. No
satisfactory answer to this query was presented before us on behalf of the Commission and
other respondents. The assertion of SIC and PTI that they were also PTI candidates and the
electorate voted for them for their being PTI candidates though appears satisfactory but is
not supported by the record presently before us. Therefore, it is the most challenging matter
involved in the case where the scales of the requirements of law and of justice are to be
justly, fairly and reasonably balanced.

109. We do not find any force in the argument that those returned candidates have
not appeared before us to rebut the presumption accepted by our learned colleagues,
because we find that they are before us speaking through SIC. What SIC says on facts is the
version of those returned candidates---SIC speaks for them before us. Both SIC and PTI have
narrated the same facts and circumstances that led to the mentioning of their status as
independent candidates in the nomination papers. Both have claimed that they were also
PTI candidates and that the electorate voted for them for being PTI candidates; they, in their
individual capacities, did not have such voting support of the electorate.

110. As held above, while exercising their general powers under Article 218(3) and
Article 187(1) of the Constitution respectively, the Commission and this Court must
endeavour to adhere to the spirit and substance of the provisions of law that, although not
explicitly covering the matter or issue, are closely related to it, so that the legislative intent
may be given effect to the maximum extent possible. According to Section 66 of the
Elections Act, two elements make a person the candidate of a political party: (i) the
candidate's own declaration that he belongs to that party, and (ii) the party's certificate
(party ticket) nominating him as its candidate. It is thus a matter between the candidate and
the party to which he claims affiliation. No consent or authorisation from any third person or
authority is required to establish their relationship and the candidate's status. This is the
substance and spirit of Section 66 of the Elections Act.

111. Therefore, we find it more just, fair and reasonable that this fact should be verified and
then acted upon by adhering to the substance and spirit of Section 66 of the Elections Act so
that the legislative intent may be given effect to the maximum extent possible. Instead of
deciding such an important matter, which essentially relates to the right and value of the
votes of millions of voters, merely on assumptions, presumptions or oral statements, this
fact should be determined with certain and concrete material: (i) the written statement
(declaration) by the returned candidate concerned, and (ii) its written confirmation
(certificate) by PTI. Upon submission of written statements by the returned candidates and
written confirmations by PTI through its de facto or de jure Chairman, the status of the 41
returned candidates shall immediately and ipso facto stand determined as a matter of law,
with no subsequent act altering what, upon submission of the statements and
confirmations, will become a past and closed transaction. Neither the returned candidates
nor PTI can later resile from this position. It is also emphasized that this verification process
is solely to determine whether the said 41 returned candidates were indeed the returned
candidates of PTI, and in no way does it amount to accepting them as independent returned
candidates and granting them another opportunity to join a political party under the
provisos to paragraphs (d) and (e) of Article 51(6) of the Constitution. Once their status is
determined upon submission of the requisite statements and confirmations, they shall be
deemed returned candidates of PTI from the date of the publication of their names as
returned candidates in the official Gazette. Consequently, they will be considered members
of the parliamentary party of PTI in the National Assembly from the date they took the oath
of office as Members of the National Assembly (MNAs), for all constitutional and legal
purposes.

112. As above held, the general power of the Commission under Article 218(3) of the
Constitution read with Sections 4 and 8 of the Elections Act is similar to the general power of
this Court under Article 187(1) of the Constitution. Therefore, in the present case the
Commission should have, by the impugned order, in the words of Section 4(1), "issue[d] such
directions or orders as may be necessary for the performance of its functions and duties,
including an order for doing complete justice in any matter pending before it"; or, in the
words of Section 8(c), "issue[d] such instructions, exercise[d] such powers and ma[d]e such
consequential orders as may in its opinion, be necessary for ensuring that an election is
conducted honestly, justly, fairly"; or, in the words of Article 218(3), "ma[d]e such
arrangements as are necessary to ensure that the election is conducted honestly, justly,
fairly". The Commission, however, again made an unlawful omission by failing to exercise its
aforementioned general powers to undo the effects of its earlier unlawful acts and
omissions and to restore PTI to its constitutional right as a Parliamentary Party and its
entitlement to reserved seats proportionate to the won general seats, thereby placing PTI,
insofar as possible, in the same position it would have been in if the said unlawful acts and
omissions had not occurred. The previous unlawful acts and omissions, as well as the said
unlawful omission, render the impugned order of the Commission ultra vires the
Constitution, without lawful authority and of no legal effect.

The Commission has failed to perform its role as a "guarantor institution" of democratic
processes

113. We find it important to emphasize that the Commission, as a constitutional

"electoral management body", is not merely an administrative entity but a fundamental
"guarantor institution" of democratic processes, with a constitutional status akin to a
"fourth branch of government".80 The Commission must therefore fully recognize its
constitutional position and the critical role it plays in a democracy while performing its duty
to conduct free and fair elections. As a central pillar of democratic electoral processes, the
Commission, in its role as a guarantor institution and impartial steward, is tasked with
ensuring the transparency and fairness of elections to maintain public trust in the electoral
system. This is essential for the legitimacy of elected representatives and the stability of the
political system. The Commission must uphold democratic principles and the integrity of
electoral processes by ensuring that elections truly reflect the will of the people, thereby
preserving the democratic fabric of the nation. Unfortunately, the circumstances of the
present case indicate that the Commission has failed to fulfill this role in the General
Elections of 2024.

114. Another matter that has surprised us during the proceedings of these appeals is
the way the Commission participated in and contested the matter before us as a primary
contesting party against SIC and PTI. We are cognizant that the Commission's prime
function, under Article 218(3) of the Constitution, is to 'organize and conduct the election
and to make such arrangements as are necessary to ensure that the election is conducted
honestly, justly, fairly, and in accordance with law, and that corrupt practices are guarded
against'. This function of the Commission, 'to organize and conduct the election', as held by
this Court in Aam Log Itehad,81 is primarily executive, not judicial or quasi-judicial. However,
as found in the said case, the Commission also performs some quasi-judicial functions. In the
present case, several political parties made counterclaims regarding their right to the
disputed reserved seats, and the Commission decided these counterclaims as an
adjudicatory body. The function performed by the Commission in the present case was,
therefore, quasi-judicial. And, as held by this Court in Wafaqi Mohtasib82 and A. Rahim
Foods,83 a body performing its quasi-judicial function in a matter between two rival parties
cannot be treated as an aggrieved person if its decision is set aside or modified by a higher
forum or by a court of competent jurisdiction. Such a body, therefore, does not have locus
standi to challenge the decision of that higher forum or court. Nor, we may add, can such a
body contest an appeal filed against its quasi-judicial decision by one of the rival parties as a
primary contesting party. In the present case, the Commission was a proper party to assist
the Court in effectually and completely adjudicating upon and settling all the questions
involved in the case. It should have acted in this manner, not as a primary contesting party.
115. As for the impugned judgment of the Peshawar High Court, we know, as held by
this Court in Dossani Travels,84 that the ambit and scope of the power of the High Courts
under Article 199 of the Constitution is not as wide as of the Supreme Court under Article
187 of the Constitution to issue such directions, orders or decrees as may be necessary for
doing complete justice in any case or matter pending before it. Nor do the High Courts
possess such general constitutional power which the Commission has under Article 218(3) to
ensure that elections are conducted honestly, justly and fairly. Therefore, without PTI's
petition, the High Court could not have passed an order like the one we have, or the one
that the Commission could have passed, for doing complete justice and ensuring that the
election is conducted honestly, justly and fairly. However, what the Peshawar High Court
could have done, but failed to do, in the present case is to remand the matter to the
Commission with a direction to do what the Commission was required to do under Article
218(3) of the Constitution, read with Sections 4 and 8 of the Elections Act.

116. So far as the proceedings in the National Assembly and the Provincial Assemblies,
wherein members elected on the disputed reserved seats under the impugned order of the
Commission participated, are concerned, the same are protected under Articles 67 and 127
of the Constitution,85 cannot be disputed in these collateral proceedings when no one has
pointed out to us any proceedings of the National Assembly or Provincial Assemblies that
could not have been successfully conducted if the members elected on the disputed
reserved seats had not participated therein. Further, as held by this Court in Raja
Amer,86 acts done in accordance with the legal position prevailing at the time of their doing
are generally protected under the doctrine of past and closed transactions. Therefore, to
protect such acts and proceedings of the National Assembly and Provincial Assemblies
concerned, which could have been successfully conducted even if the members elected on
the disputed reserved seats had not participated, the notifications of the Commission
declaring such members as returned candidates on the disputed reserved seats are quashed
with effect from 6 May 2024, the date on which this Court suspended the impugned order of
the Commission.

PTI is before the Court

117. Lastly, we want to say a few words to clarify that PTI, which has been granted relief in
the present case, is before us with an application for its impleadment as a party to the case.
In the normal course of procedure for civil cases, the application for impleadment is first
decided and the applicant formally made a party to the case, before granting him any relief
in the case. This case, as explained in the opening part of this judgment, is not an ordinary
civil case but a lis of the highest order, where democracy---a salient feature of the Consti-
tution---and the fundamental right of the people (the electorate) to choose their
representatives for the legislative and executive organs of the State is to be preserved,
protected and defended. The procedural formality of first accepting PTI's application and
then granting it the relief does not carry much weight where the Court's concern is the
protection
of the right of vote of the people (the electorate) guaranteed under Articles 17(2) and 19 of
the Constitution, more than the right of any political party-whether it be SIC or PTI or any
other party. Indeed, more particularly for this kind of cases, where the rights of people are
involved, not only of the parties before the Court, the words of Kaikaus, J., resound that 'the
proper place of procedure in any system of administration of justice is to help and not
thwart the grant to the

people of their rights.'87 Even otherwise, as held by this Court in

several cases,88 while doing complete justice in the exercise of its general power under
Article 187(1) of the Constitution, this Court is not handicapped by any technicality or rule of
practice or procedure, nor is the exercise of this power by the Court dependent on an
application by a party.

118. So far as the application (C.M.A. 3554/2024) of Ms. Kanwal Shauzab, who claims
to be a PTI candidate for the seats reserved for women in the National Assembly, is
concerned, it also has little significance in the perspective we have approached and dealt
with the present case. We may clarify that although we heard her counsel in the interest of
justice, as important questions of interpretation of constitutional provisions were involved,
she is not a necessary party to the case. We are of the considered view that a contesting
candidate or a returned candidate to the seats reserved for women or non-Muslims is not a
necessary party to a dispute where the matter to be decided is which political party and in
what proportion is entitled to the reserved seats. The persons nominated by a political party
for reserved seats or elected to such seats do not have a personal right to such seats. It is
the right of the electorate guaranteed under Articles 17(2) and 19 of the Constitution,
exercisable through political parties, to have proportional representation in the reserved
seats, not of the person nominated for or elected to such seats.

Relief granted; short order reproduced

119. These are the detailed reasons for our short order dated 12 July 2024, which is
reproduced here for completion of the record:

ORDER

Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar, Ayesha A. Malik, Athar
Minallah, Syed Hasan Azhar Rizvi, Shahid Waheed and Irfan Saadat Khan, JJ.: For detailed
reasons to be recorded later and subject to

what is set out therein by way of amplification and/or explanation or otherwise, these
appeals are decided in the following terms:

1. The impugned judgment dated 25.03.2024 of the learned Full Bench of the High Court
is set aside to the extent it is or may be inconsistent with this Order or the detailed reasons.
 2. The order of the Election Commission of Pakistan ("Commission") dated 01.03.2024
("Impugned Order") is declared to be ultra vires the Constitution, without lawful authority
and of no legal effect.

3. The notifications (of various dates) whereby the persons respectively mentioned
therein (being the persons identified in the Commission's notification No.F.5(1)/2024-Cord.
dated 13.05.2024) have been declared to be returned candidates for reserved seats for
women and minorities in the National and Provincial Assemblies are declared to be ultra
vires

the Constitution, without lawful authority and of no legal

effect, and are quashed from 06.05.2024 onwards, being the date an interim order was
made by the Court in CPLA Nos. 1328-9 of 2024, the leave petitions out of which the instant
appeals arise.

4. It is declared that the lack or denial of an election symbol does not in any manner
affect the constitutional and legal rights of a political party to participate in an election
(whether general or bye) and to field candidates and the Commission is under a
constitutional duty to act, and construe and apply all statutory provisions, accordingly.

5. It is declared that for the purposes, and within the meaning, of paragraphs (d) and (e)
of clause (6) of Article 51 ("Article 51 Provisions") and paragraph (c) of clause (3) of Article
106 ("Article 106 Provisions") of the Constitution, the Pakistan Tehreek e Insaf ("PTI") was
and is a political party, which secured or won (the two terms being interchangeable) general
seats in the National and Provincial Assemblies in the General Elections of 2024 as herein
after provided.

6. During the course of the hearing of the instant appeals, on 27.06.2024, learned
counsel for the Commission placed

before the Court a list ("the List") of 80 returned candidates

for the National Assembly (now MNAs), setting out in

tabular form particulars relating to their election. Learned counsel made a categorical
statement that the Commission stood by the data so provided to the Court. In particular, the
List contained three columns marked as follows: (i) "Statement (on nomination form) given
in declaration and oath by the person nominated (i.e., 'I belong to')"; (ii) "Certificate of party
affiliation under Section 66 of the Elections Act, 2017"; and (iii) "Statutory
Declaration/affidavit accompanying section 66 certificate".

7. In the peculiar facts and circumstances of the General Election of 2024, it is declared
that out of the aforesaid 80 returned candidates (now MNAs) those (being 39 in all and
whose particulars are set out in Annex A to this Order) in respect of whom the Commission
has shown "PTI" in any one of the aforesaid columns in the List, were and are the returned
candidates whose seats were and have been secured by the PTI within the meaning, and for
purposes of, para 5 above in relation to the Article 51 Provisions.

8. In the peculiar facts and circumstances of the General Election of 2024, it is further
ordered that any of the remaining 41 returned candidates out of the aforesaid 80 (whose
particulars are set out in Annex B to this Order) may, within 15 working days of this Order
file a statement duly signed and notarized stating that he or she contested the General
Election as a candidate of the political party specified therein. If any such statement(s) is/are
filed, the Commission shall forthwith but in any case within 7 days thereafter give notice to
the political party concerned to file, within 15 working days, a confirmation that the
candidate contested the General Election as its candidate. A political party may in any case,
at any time after the filing of a statement as aforesaid, of its own motion file its
confirmation. If such a statement is filed, and is confirmed by the political party concerned,
then the seat secured by such candidate shall be forthwith deemed to be a seat secured by
that political party for the purposes of para 5 above in relation to the Article 51 Provisions.
The Commission shall also forthwith issue, and post on its website, a list of the retuned
candidates (now MNAs) and seats to which this para applies within 7 days after the last date
on which a political party may file its confirmation and shall simultaneously file a compliance
report in the Court.

9. For the purposes of para 5 of this Order in relation to the Article 51 Provisions, the
number of general seats secured by PTI shall be the total of the seats declared in terms of
para 7 and those, if any, to which para 8 applies. The PTI shall be entitled to reserved seats
for women and minorities in the National Assembly accordingly. PTI shall, within 15 working
days of this Order file its lists of candidates for the said reserved seats and the provisions of
the Elections Act, 2017 ("Act") (including in particular section 104) and the Elections Rules,
2017 ("Rules") shall be applied to such lists in such manner as gives effect to this Order in
full measure. The Commission shall, out of the reserved seats for women and minorities in
the National Assembly to which para 3 of this Order applies, notify as elected in terms of the
Article 51 Provisions, that number of candidates from the lists filed (or, as the case may be,
to be filed) by the PTI as is proportionate to the general seats secured by it in terms of paras
7 and 8 of this Order.

10. The foregoing paras shall apply mutatis mutandis for purposes of the Article 106
Provisions in relation to PTI (as set out in para 5 herein above) for the reserved seats for
women and minorities in the Khyber Pakhtunkhwa, Punjab and Sindh Provincial Assemblies
to which para 3 of this Order applies. In case the Commission or PTI need any clarification or
order so as to give effect to this para in full measure, it shall forthwith apply to the Court by
making an appropriate application, which shall be put up before the Judges constituting the
majority in chambers for such orders and directions as may be deemed appropriate.

Annexure-A

(Names of Candidates Affiliated with the Pakistan Tehreek-e-Insaf

as per the list verified from the data provided by ECP89)

Sr. No. Number and Name of the Name of the Candidate

Constituency

1. NA-2 (Swat-I) Amjad Ali Khan

2. NA-3 (Swat-II) Saleem Rehman

3. NA-4 (Swat-III) Sohail Sultan

4. NA-6 (Lower Dir-I) Muhammad Bashir Khan

5. NA-7 (Lower Dir-II) Mehboob Shah

6. NA-9 (Malakand) Junaid Akbar

7. NA-17 (Abbottabad-II) Ali Khan Jadoon

8. NA-19 (Swabi-I) Asad Qaiser

9. NA-20 (Swabi-II) Shahram Khan

10. NA-21 (Mardan-I) Mujahid Ali

11. NA-24 (Charsadda-I) Anwar Taj

12. NA-25 (Charsadda-II) Fazal Muhammad Khan

13. NA-29 (Peshawar-II) Arbab Amir Ayub

14. NA-30 (Peshawar-III) Shandana Gulzar Khan

15. NA-31 (Peshawar-IV) Sher Ali Arbab

16. NA-32 (Peshawar-V) Asif Khan

17. NA-33 (Nowshera-I) Syed Shah Ahad Ali Shah

18. NA-38 (Karak) Shahid Ahmad

19. NA-39 (Bannu) Nasim Ali Shah

20. NA-41 (Lakki Marwat) Sher Afzal Khan

21. NA-83 (Sargodha-II) Usama Ahmed Mela

22. NA-84 (Sargodha-III) Shafqat Abbas

23. NA-95 (Faisalabad-I) Ali Afzal Sahi

24. NA-96 (Faisalabad-II) Rai Haider Ali Khan

25. NA-100 (Faisalabad-VI) Nisar Ahmed

26. NA-101 (Faisalabad-VII) Rana Atif

27. NA-102 (Faisalabad-VIII) Changaze Ahmad Khan

28. NA-103 (Faisalabad-IX) Muhammad Ali Sarfraz

29. NA-115 (Sheikhupura-III) Khurram Shahzad Virk

30. NA-122 (Lahore-VI) Sardar Muhammad Latif Khan Khosa

31. NA-143 (Sahiwal-III) Rai Hassan Nawaz Khan

32. NA-149 (Multan-II) Malik Muhammad Aamir Dogar

33. NA-150 (Multan-III) Makhdoom Zain Hussain Qureshi

34. NA-154 (Lodhran-I) Rana Muhammad Faraz Noon

35. NA-171 (Rahim Yar Khan-III) Mumtaz Mustafa

36. NA-179 (Kot Addu-I) Muhammad Shabbir Ali Qureshi

37. NA-181 (Layyah-I) Umber Majeed

38. NA-182 (Layyah-II) Awais Haider Jakhar

39. NA-185 (D.G. Khan-II) Zartaj Gul

Annexure-B

(Names of Independent Candidates

[whom PTI claims as its candidates])

Sr. No. Number and Name of the Constituency Name of the Candidate

1. NA-1 (Chitral Upper-cum- Chitral Lower) Abdul Latif

2. NA-5 (Upper Dir) Sahibzada Sibghatullah

3. NA-13 (Battagram) Muhammad Nawaz Khan

4. NA-22 (Mardan-II) Muhammad Atif

5. NA-23 (Mardan-III) Ali Muhammad

6. NA-26 (Mohmand) Sajid Khan

7. NA-27 (Khyber) Muhammad Iqbal Khan

8. NA-34 (Nowshera-II) Zulfiqar Ali

9. NA-35 (Kohat) Shehryar Afridi

10. NA-36 (Hangu-cum-Orakzai) Yousaf Khan

11. NA-42 (South Waziristan Upper-cum- Zubair Khan

South Waziristan Lower)

12. NA-66 (Wazirabad) Mohammad Ahmed Chattha

13. NA-67 (Hafizabad) Aniqa Mehdi

14. NA-68 (Mandi Bahauddin-I) Haji Imtiaz Ahmed Choudhry

15. NA-78 (Gujranwala-II) Muhammad Mobeen Arif

16. NA-79 (Gujranwala-III) Ihsan Ullah Virk

17. NA-181 (Gujranwala-V) Ch. Bilal Ejaz

18. NA-86 (Sargodha-V) Muhammad Miqdad Ali Khan

19. NA-89 (Mianwali-I) Muhammad Jamal Ahsan Khan

20. NA-90 (Mianwali-II) Umair Khan Niazi

21. NA-91 (Bhakkar-I) M. Sana Ullah Khan Mastikhel

22. NA-93 (Chiniot-I) Ghulam Muhammad

23. NA-97 (Faisalabad-III) Muhammad Saad Ullah

24. NA-99 (Faisalabad-V) Umar Farooq

25. NA-105 (Toba Tek Singh-I) Usama Hamza

26. NA-107 (Toba Tek Singh-III) Mohammad Riaz Khan

27. NA-108 (Jhang-I) Muhammad Mahbob Sultan

28. NA-109 (Jhang-II) Waqas Akram

29. NA-110 (Jhang-III) Muhammad Ameer Sultan

30. NA-111 (Nankana Sahib-I) Muhammad Arshad Sahi

31. NA-116 (Sheikhupura-IV) Khurram Munawar Manj

32. NA-129 (Lahore-XIII) Mian Muhammad Azhar

33. NA-133 (Kasur-III) Azim Uddin Zahid

34. NA-137 (Okara-III) Syed Raza Ali Gillani

35. NA-156 (Vehari-I) Ayesha Nazir

36. NA-170 (Rahim Yar Khan-II) Mian Ghous Muhammad

37. NA-172 (Rahim Yar Khan-IV) Javaid Iqbal

38. NA-175 (Muzaffargarh-I) Jamshaid Ahmad

39. NA-177 (Muzaffargarh-III) Muhammad Moazzam Ali Khan

40. NA-180 (Kot Addu-II) Fiaz Hussain

41. NA-183 (Taunsa) Khawaja Sheraz Mehmood

120. Before parting with the judgment, we feel constrained to observe, with a heavy
heart, that our two learned colleagues in the minority (Justice Amin-ud-Din Khan and Justice
Naeem Akhtar Afghan) have made certain observations in their dissenting judgment dated 3
August 2024, which do not behove Judges of the Supreme Court of Pakistan, the highest
court of the land. After expressing their view that the order we passed on 12 July 2024 is not
in accordance with the Constitution and that we ignored and disregarded its mandate, they
observed that "[i]f the said 39 plus 41 persons take any step on the basis of this judgment
which is not in accordance with the Constitution, they may lose their seats as returned
candidates on the basis of violation of the Constitution",90 and that "[a]ny order of the Court
which is not in consonance with the constitutional provisions is not binding upon any other
constitutional organ of the State."91

121. We take no issue with their having and expressing the view that, in their
understanding, our order dated 12 July 2024 is not in accordance with the Constitution, as
Members of a Bench of this Court, or any court, can legitimately differ on issues of fact and
law. They may strongly express divergent opinions and make comments on each other's
views, highlighting reasons why they believe other Members have erred. However, the
manner in which they have expressed their disagreement falls short of the courtesy and
restraint required of Judges of the Superior Courts. What is more disquieting is that, through
the said observations, they appear to have gone beyond the parameters of propriety by
warning the 39 plus 41 (80) returned candidates and urging the Commission not to comply
with the majority order, which is the decision of a thirteen-member Full Court Bench of this
Court. Such observations undermine the integrity of the highest institution of justice in the
country and seem to constitute an attempt to obstruct the process of the Court and the
administration of justice.

122. Considering the public importance of this judgment, the office is directed to ensure
translation of this judgment into Urdu in order to enhance public access to its information, in
accordance with Article 19A read with Article 251 of the Constitution. The Urdu version of
the judgment shall be placed on the record of the case, uploaded on the Court's website and
reported in the law journals alongside this official English version of the judgment.

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Delivered at Islamabad

On 23rd September, 2024

SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

In Chambers at Islamabad and Karachi*

Mr. Justice Syed Mansoor Ali Shah, Mr. Justice Munib Akhtar

Mr. Justice Muhammad Ali Mazhar, Mrs. Justice Ayesha [Link]

Mr. Justice Athar Minallah

Mr. Justice Syed Hasan Azhar Rizvi, Mr. Justice Shahid Waheed

Mr. Justice Irfan Saadat Khan

C.M.A. No. 10247 of 2024 in Civil Appeals Nos. 333 and 334 of 2024 (Filed by ECP, seeking
clarification)

AND

C.M.A. No. 10088 of 2024 in Civil Appeals Nos. 333 and 334 of 2024 (Filed by PTI, seeking
clarification)

Clarification

In terms of paragraph 10 of this Court's order dated 12 July 2024 ("Short Order") passed in
the Civil Appeals Nos. 333 and 334 of 2024, both the Election Commission of Pakistan
("Commission"), through CMA 10247/2024, and Pakistan Tehreek-e-Insaf ("PTI"), through
CMA 10088/2024, seek clarification regarding the effect of the Elections (Second
Amendment) Act, 2024 ("Amendment Act") on the Short

Order.

2. The ECP in its CMA, has submitted that the Short Order was based on the law which has
since been altered by the amendments made to Sections 66 and 104 of the Elections Act,
2017 ("Elections Act") and a new Section, namely 104-A, has also been inserted with
retrospective effect from the date of the commencement of the Elections Act.

3. On the other hand, PTI has submitted in its CMA that the Short Order passed by this
Court is based on the interpretation and enforcement of constitutional provisions, therefore
the amendments cannot supplant the effect of the Short Order.

4. We had already issued clarification before releasing the detailed reasons and the first
clarification issued pursuant to the Short Order was also merged in our detailed reasons. The
option given by us to seek clarification in the Short Order was in fact an intermediary
window till the detailed reasons were assigned, so in case there arises any misunderstanding
as to the spirit or implementation of the Short Order before the release of the detailed
judgment, the parties may seek clarification. The detailed reasons have already been
released and all legal and constitutional issues raised and argued by the parties have been
dealt with eloquently and answered, therefore, no further clarification is required to be
issued. The judgment of this Court has binding effect in terms of Article 189 of the
Constitution of the Islamic Republic of Pakistan, 1973, and should have been implemented.

5. Since the Commission and PTI both have asked for a second clarification, we want to
simply clarify and reiterate the well- settled exposition of law that the effect of the
amendment made in the Elections Act cannot undo our judgment with retrospective effect.
The Court granted the relief in the Short Order to enforce the right of the electorate through
political parties to have proportional representation in the reserved seats under paragraphs
(d) and (e) of clause (6) of Article 51 and paragraph (c) of clause (3) of Article 106 of the
Constitution, therefore, the amendments made in the Elections Act after the release of our
Short Order will have no bearing and the Commission is bound to implement the judgment
passed by the Supreme Court of Pakistan, in its letter and spirit, without seeking any further
clarification.

6. Office is directed to send this clarification to the Commission and the representative of
PTI who filed the application for clarification and also upload this clarification on the
Supreme Court website. Both the Civil Misc. Applications are disposed of

accordingly.

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Dated 18th October, 2024.

YAHYA AFRIDI, J.---Sunni Ittehad Council ("SIC"), a registered political party, along with its
Chairman, Sahibzada Muhammad Hamid Raza, moved the constitutional jurisdiction of the
Peshawar High Court1 seeking, inter alia, to challenge the refusal of the Election Commission
of Pakistan ("ECP") to allocate reserved seats for women and non-Muslims in the National
Assembly and Provincial Assemblies to SIC, and to question the allocation of these reserved
seats by ECP to other political parties in terms of Notification No. F.5(1)/2024-Cord and
Notification No. F.5(4)/2024-Cord both dated 04.03.2024 ("Impugned Notifications"), and to
declare Section 104 of the Elections Act, 2017 ("Act") to be ultra vires to the Constitution of
Islamic Republic of Pakistan, 1973 ("Constitution").

Impugned Judgment

2. A Full Bench of five worthy Judges of the Peshawar High Court dismissed the petition in
terms: that SIC did not fulfill the condition precedent provided under Article 51(6) (d) and (e)
of the Constitution to be allocated reserved seats for women and non-Muslims; that Section
104 of the Act was intra vires; that there was no basis to question the status of Pakistan
Tehreek-e-Insaf ("PTI") as a political party; and that PTI-backed independent candidates were
returned to the Assemblies on the manifesto of PTI, however, nothing was produced before
the High Court to show that ECP had declined the request of these candidates to contest
elections on the ticket of PTI; and that the returned PTI-backed independent candidates
were neither impleaded nor did they file any application before the High Court to be made a
party to the petition pending before it.

Contentions of the Parties

3. Learned counsel for the appellants, at the very outset, submitted that he would not
challenge the vires of Section 104 of the Act, since the stance taken by the appellants was
supported by the constitutional provisions contained in Article 51 and Article 106 of the
Constitution, and restricted the challenge to the findings recorded in the impugned
judgment only to the entitlement of SIC to reserved seats for women and non-Muslims in
the National Assembly and Provincial Assemblies. The main thrust of the learned counsel for
SIC was that Article 51(6)(d)2 and (e)3 and Article 106(3)(c)4 of the Constitution did not
expressly mandate that a political party was to contest General Elections to become entitled
to reserved seats. Nor was it necessary, according to the learned counsel, to submit a list for
reserved seats before the General Elections or within the period fixed by ECP for submission
of nomination papers for the purpose of election to reserved seats to be entitled to reserved
seats as the same could be allowed to be done by a political party even later. This, the
learned counsel asserted, was the spirit of Article 51(6)(d)

and (e) and Article 106(3)(c) of the Constitution. Finally, the learned counsel drew our
attention to the Impugned Notifications, to show that reserved seats allocated to some of
the political parties far exceeded their due share of reserved seats on the basis of their
numerical strength in the respective assemblies. This, the learned counsel argued, was a
blatant violation of the principle of proportional representation enshrined in Article 51(6)(d)
and (e) and Article 106(3)(c) of the Constitution. Hence, the Impugned Notifications
warranted annulment and SIC was to be allowed reserved seats for women and non-
Muslims in the National Assembly and Provincial Assemblies, as mandated under Article
51(6) (d) and (e) and Article 106(3)(c) of the Constitution.

4. The stance taken by the appellants before us was opposed

by the Federation, ECP, women and non-Muslims elected to reserved seats in the National
Assembly and Provincial Assemblies beyond the share of their parties based on numerical
strength in respective houses, Pakistan Muslim League (N), Muttahida Qaumi Movement
(Pakistan), Pakistan Peoples Party Parliamentarians, and Jamiat Ulem-e-Islam Pakistan.

Issue for Determination

5. The core controversy requiring resolution relates to the allocation of reserved seats for
women and non-Muslims to political parties in the National Assembly and Provincial
Assemblies in accordance with Article 51(6) (d) and (e) and Article 106(3)(c) of the
Constitution, respectively. It will be appropriate to first review and discuss the legal
provisions regarding the reserved seats for women in the National Assembly, as this will
provide a foundation for understanding the allocation of other reserved seats provided
under the Constitution.

Total Number of Reserved Seats for Women in the National

Assembly

6. Clause 3 of Article 51 of the Constitution specifies the total number of seats in the
National Assembly, including those reserved for women in each province, in terms that:

"(3) The seats in the National Assembly referred to in clause (1), except the seats
mentioned in clause (4), shall

be allocated to each Province and the Federal Capital as

under: -

General Seats Women Seats Total Seats

Balochistan 16 4 20

Khyber Pakhtunkhwa 45 10 55

Punjab 141 32 173

Sindh 61 14 75

Federal Capital 3 - 3

Total 266 60 326

Election for Reserved Seats for Women in the National Assembly

7. As for the election on reserved seats for women in the

National Assembly, the numerical strength for each province has

been set out in Article 51(3) (supra); the manner of allocation of the

said reserved seats to the political parties is provided in clause (d) of sub-Article (6) of Article
51 of the Constitution. It provides in terms that:

"(d) members to the seats reserved for women which are allocated to a Province under
clause (3) shall be elected in accordance with law through proportional representation
system of political parties' lists of candidates on the basis of total number of general seats
secured by each political

party from the Province concerned in the National Assembly:

Provided that for the purpose of this paragraph the total

number of general seats won by a political party shall include the independent returned
candidate or candidates who may duly join such political party within three days of the
publication in the official Gazette of the names of the returned candidates; and"

A careful reading of the above provision provides that for a political party to be allocated
reserved seats for women, the following are the crucial issues to be considered:

i) Election in accordance with law:

The allocation of reserved seats for women has to pass through an electoral process; not
only are the political parties mandated to take steps, but their nominee candidates are also
to do so. And all this is to proceed in "accordance with the law"5 - the Constitution, the Act
and the Election Rules, 2017 ("Rules").
 With the essentials provided in Article 51 of the Constitution, Section 104 of the Act sets
out the mode and manner of allocation of the reserved seats to political parties in the
National Assembly, in terms that:

104. Party lists for reserved seats. -

(1) For the purpose of election to seats reserved for women

and non-Muslims in an Assembly, the political parties contesting election for such seats shall,
within the period fixed by the Commission for submission of nomination papers, file
separate lists of their candidates in order of priority for seats reserved for women and non-
Muslims with the Commission or, as it may direct, with the Provincial Election Commissioner
or other authorized officer of the Commission, who shall forthwith cause such lists to be
published for information of the public:

Provided that the list submitted by a political party shall not be subject to change or
alteration either in the order of priority or through addition of new names in the list or
omission of any name after expiry of the date of submission of nomination papers.

(2) The parties' lists referred to in subsection (1) may contain as many names of
additional candidates as a political party may deem necessary for contesting seats reserved
for women and non-Muslims, to provide for any disqualification of candidates during
scrutiny of nomination papers or for filling of any vacant seats during the term of an
Assembly.

(3) A candidate to a seat reserved for women or non- Muslims shall file the nomination
papers on the Form on or before the last date fixed for filing of nomination papers for the
election and the nomination papers shall, as nearly as possible, be scrutinized in the same
manner as nomination papers of candidates on general seats are scrutinized under Section
62.

(4) If, at any time, the party list is exhausted, the political party may submit a name for
any vacancy which may occur thereafter and the provisions of subsections (1), (2) and (3)
shall, as nearly as possible, apply to fill such vacancy.

(5) Where a seat reserved for women or non-Muslims in an Assembly falls vacant as a
result of death, resignation or disqualification of a Member, it shall be filled in by the next
person in order of precedence from the party's list of candidates submitted to the
Commission under subsection (1).

(6) Before notifying the name of the next person in order of priority from the party list,
such person shall submit a declaration on oath that since the filing of his nomination paper,
he has not become subject to any disqualification contained in Article 63.
 (7) A candidate contesting election on a seat reserved for women or non-Muslims shall,
along with the nomination papers and its annexures, submit to the Returning Officer
appointed by the Commission in this behalf-

(a) a copy of the party list of the candidate's political party for such seats;

(b) declarations and statements in support of the nomination; and

(c) proof of deposit of the fee required for filing nomination papers.

(8) Where there is equality of share on a reserved seat between two or more political
parties, the Returning Officer shall declare the returned candidate by drawing of lots.

To further clarify, and elucidate the above procedure, we have Rule 92 of the Rules, framed
under Section 239 of the Act. The said Rule reads:

92. Election to seats reserved for women and non-Muslims.--- (1) Election to the seats
reserved for women and non-Muslims in the National Assembly and Provincial Assemblies
shall be held on the basis of proportional representation system of political parties' lists of
candidates in accordance with the provisions of these Rules and the Act.

(2) The Members to fill seats reserved for women in the National Assembly allocated to a
Province shall be elected through proportional representation system of political parties'
lists of candidates submitted to the Commission on the basis of total number of general
seats won by each political party from the Province concerned in the National Assembly.

(3) The Members to fill seats reserved for women allocated to a Province shall be elected
through proportional representation system of political parties' lists of candidates on the
basis of total number of general seats won by each political party in the Provincial Assembly.

(4) The Members to fill seats reserved for non-Muslims in the National Assembly and the
Provincial Assemblies shall be elected through proportional representation system of
political parties' lists of candidates on the basis of total number of general seats won by each
political party in the National Assembly, or, as the case may be, in the Provincial Assembly.

(5) If, at any time, the party list is exhausted, the political party may submit a name for
any vacancy which may occur thereafter and the provisions of subsection (1) and subsection
(2) of Section 104 shall, as nearly as possible, apply to fill such vacancy.

(6) For the purpose of this Rule, the expression "total number of general seats won by
political party" shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates:

Provided that if the independent candidate applies to the leader of a political party for
joining his party then the leader of that political party will forthwith inform the Commission
of joining of such candidate through a letter to be delivered to the Commission along with
consent of that candidate duly attested by a Notary appointed under the Notaries
Ordinance, 1961 (XIX of 1961) or an Oath Commissioner appointed under the Oaths Act,
1873 (X of 1873) or a Government servant in basic pay scale 17 and above:

Provided that the consent of the independent candidate so delivered to the Commission
shall, in no circumstances, be open to recall or cancellation.

(7) The political parties' lists of candidates to be submitted under this Rule to the
Commission in connection with election to the reserved seats for women or non-Muslims in
an assembly shall be on Form-66.

A combined reading of the above provisions of the Constitution, the Act and the Rules
indicates that a political party seeking reserved seats for women in the National Assembly
has to take the following concerted steps in order that its nominees be eligible to be elected
as members of the National Assembly on the seats reserved for women:

Step No. 1

A political party desirous of contesting election for reserved seats has to submit before
ECP, the list of its candidates, and that too, in order of priority. Such list is to be published for
information of the public forthwith. But once the time fixed by ECP for filing of nomination
papers has expired, the political party is prohibited from making any modifications to the
submitted list. This includes changes to the order of candidates, adding new names, or
removing existing ones.

Step No. 2

The listed nominee candidates of a political party, in turn, have to file their nomination
papers along with all the requisite documents for contesting election on the reserved seats,
and that too, within the prescribed time. The nomination papers of the said candidates are
filed before the Returning Officer appointed by ECP. The scrutiny thereof shall, as nearly as
possible, be in the same manner, as that of nomination papers of candidates on general
seats under Section 62 of the Act, including the right to challenge any findings made by the
Returning Officer appointed by ECP.

What is strikingly significant in the above stated procedure for election of reserved seats is
that each step required of a political party and its listed nominee candidates is time bound.

ii) Basis of Allocation of Reserved Seats

For allocation of reserved seats, there has to be election not amongst the individual
nominee candidates but between the political parties, who field their candidates, as per the
list they submit to ECP; and that too, through proportional representation system of political
parties' lists of candidates on the basis of total number of general seats secured by each
political party from the provinces concerned in the National Assembly.

Forms of Elections under the Constitution - Proportional Representation System

 There are under the Constitution, three distinct forms of elections: firstly, we have single
member territorial constituencies for the general seats in the National Assembly and
Provincial Assemblies and the members to fill such seats are to be elected by direct and free
vote in accordance with law6; secondly, there is single transferable vote or proportional

ranked choice voting system for the elections to the Senate; and finally, we have
proportional representation system of political parties' lists for the elections for the reserved
seats for women and the non-Muslims. It follows that a first-past-the-post system is used for
general seats in the National and Provincial Assemblies, while a proportional representation
system based on single transferable vote is used for Senate elections, and a proportional
representation system based on political parties' lists is used for reserved seats in the
National and Provincial Assemblies.

As for the concept of the proportional representation system, it must be understood that
it manifests in different ways across various jurisdictions globally. To better understand and
appreciate the various systems, and in particular, the one applicable for reserved seats for
women and non-Muslims, it would be appropriate to have an overview of some of the
different systems of 'proportional representation'. Proportional representation systems are
of following two basic types:

Single Transferable Vote or Proportional Ranked Choice Voting

Single Transferable Vote or Proportional Ranked Choice Voting is provided under clause
(2) of Article 59 of the Constitution for elections to the Senate. It is a multi-winner electoral
system, where each voter casts a single vote in the form of ranked-choice ballot. Voters have
the option to rank candidates, and their votes may be transferred according to alternate
preferences, if their preferred candidate is eliminated or elected with surplus votes, so that
their votes are used to elect someone they prefer over others in the running.

Proportional Representation System of Political Parties' Lists

Proportional representation system of political parties' lists is a system for election for
the reserved seats for women and the non-Muslims in the National Assembly and Provincial
Assemblies, as provided under Articles 51 and 106 of the Constitution. This system has its
unique characteristics and modalities, as it provides each political party to 'showcase' to the
public their listed candidates for the voters to make their valued choice at the time of casting
their votes for the other candidates of the political party in the General Elections. In essence,
it is to provide individual voters valuable information, about the political party and the
candidates it is to field for elections, at the time they cast their vote, helping them make a
more informed decision.

There is no cavil to the proposition that, all proportional representational systems, are
neither intended to nor are to be applied in a disproportionate manner. But for a political
party to avail any benefit thereof, it has to first fulfill the condition precedent set for first
entering the electoral system. In the case of the proportional representation system of
political parties' lists, used for electing reserved seats for women and non-Muslims in the
National Assembly and Provincial Assemblies, as outlined in Articles 51 and 106 of the
Constitution, the political party has to cross the defined legal threshold; firstly, by filing the
list of candidates within the period set by ECP, and secondly, by fielding their nominee
candidates by submitting their nomination papers within the time set by ECP.

iii) Total number of General Seats secured by a Political Party

Article 51(6) (d) of the Constitution mandates that reserved

seats for women in the National Assembly are to be allocated based on the total number of
general seats secured by each political party from the province concerned in the National
Assembly. Thus, the constituency for reserved seats for women is each of the four provinces.
On the other hand, Article 51(6) (e) of the Constitution provides for reserved seats for non-
Muslims in the National Assembly are to be allocated based on the total number of general
seats won by each political party in the National Assembly. Here the constituency is not
restricted to the provinces but is, in fact, the whole country. Similarly, for the reserved seats
for women and non-Muslims in the Provincial Assembly, the constituency is the whole
province.

A fundamental prerequisite for a political party to qualify for reserved seats is the
winning of at least one general seat. This is evident from the proviso allowing independent
candidates to join a political party within three days of election results, a process contingent
on the existence of a political party with at least one elected member. The proviso to Article
51(6) (d) and (e) and Article 106(3) (c) provides that the total number of general seats won
by a political party shall include the independent returned candidate or candidates who may
duly join such political party within three days of the publication in the official Gazette of the
names of the returned candidates. Notably, the proviso to the above-mentioned Articles is
not a proviso in the strict sense of the term, since it neither creates an exception to the main
provision nor qualifies it. Instead, it serves as an explanation that supplements the main
provision by clarifying that independent returned candidates, who join a political party
within three days of the publication of the names of the returned candidates are to be
counted as part of the total number of general seats won by that party for the purpose of
allocating reserved seats. It is but necessary that a candidate can only join a political party, if
that political party already has a presence in the house - it already has secured or won a
general seat. If the political party has not secured or won a general seat, it does not have any
returned candidate in the house, for an independent returned candidate or candidates to
join it. It shows that it is necessary that a political party at least wins one general seat to
become entitled to reserved seats. Consequently, the entitlement of a political party to
reserved seats is inextricably linked to its success on at least one general seat.

The word 'secured' used in Article 51(6) (d) and the word 'won' in Article 51(6) (e), have
in essence, the same meaning and
can be applied interchangeably. However, one can understand that by employing two
different words having the same meaning was to highlight the constituencies of the reserved
seats for women and the non-Muslims: for the former, a direct reference has been made to
the seats secured from each province in the National Assembly; and for the latter, there is
the stipulation of the total strength of the political party based on its returned candidates,
who have won the elections in the National Assembly.

Even otherwise, one must be aware that the word "secured" is employed in the main
provision of the above constitutional provision, while the inclusion of the independents
being provided in the proviso to the said provision, and that being an explanation to the
general statement of the law in the main provision, cannot be applied to those
independents being referred to in the proviso. Moreso, when the two categories of returned
candidates; one who belongs to a political party referred to in the main part of the provision,
while the other being the independents joining the same political party stated in the
proviso; are separately referred to in Article 51(6) (d) and cannot be considered as one
category. And thus, are to be legally considered separately, each in accord with the letter of
the law, as stated therein.

As for the contention of the learned counsel supporting the stance taken by SIC that this
Court ought to render a progressive approach and endeavor to understand the intent behind
the constitutional provision and not restrict the meaning of the words implied in a statute in
a manner, so as to 'make a fortress out of the dictionary', I am afraid the approach of the
learned counsel is rather miscued in the circumstances of the present case. In fact, when the
letter of the statute is simple in meaning and does not lead to an absurd or unreasonable
situation or for that matter, contradicts or come in conflict with any other provision of the
Constitution, Courts are to read the letter of the law, and need not to surgically search for
another meaning by taking refuge of the intent of the law-makers.

None can dispute the fundamental right of an independent member of a house to join a
political party, as is ordained under Article 17 of the Constitution, but for this inclusion of an
independent returned member of the house to strengthen the political party to seek the
allotment of reserved seats, I am afraid the said right is conditional on the fulfillment of the
legal requirements within the contemplation of Articles 51 and 106 of the Constitution.
These conditions precedent - to contest and win at least a general seat and to submit the list
of candidates for the reserved seats, whose antecedents have passed through the scrutiny
provided under the law - have to be fulfilled by SIC.

iv) Inclusion of Independent Candidates - joining a Political Party

The general principle laid down in the substantive part of Article 51(6) (d) of the
Constitution mandates the political party to be entitled to reserved seats, based on the total
number of general seats secured by it from the province concerned in the National
Assembly.
 The proviso contained in Article 51(6) (d) of the Constitution vests an independent
returned candidate, the right to join a political party of his choice, and none can take away
this right from him. To render legal effect to the act of an independent returned candidate of
joining a political party, requires the leader of the said political party7 to intimate ECP in
writing regarding joining of that political party by the independent returned candidate. This
written intimation has to be accompanied by the written consent of the independent
returned candidate. ECP on receipt of the said intimation accompanied by the written
consent of the independent returned candidate, has no authority under the law to object to
any independent returned candidate joining a political party within the stipulated period of
three days. However, for independent candidates to contribute to the overall seat count of a
political party for the purpose of its entitlement to reserved seats, the proviso mandates
that these candidates must join such party that has already won at least one general seat. In
essence, a political party must win a general seat to benefit from the inclusion of
independent candidates, so as to become a part of its numerical strength for the purpose of
allocation of reserved seats.

Candidates for election - National Assembly and Provincial Assemblies

What is crucial to note is that the Act read with the Rules envisages three different kinds
of returned candidates, contesting elections for the National Assembly and Provincial
Assemblies:

Firstly, we have the candidates, who have submitted their nomination papers declaring
themselves, as candidates belonging to a political party duly accompanied by a certificate
from the said party, declaring the candidates to be their official candidates for election in the
respective constituencies. Such a candidate cannot be denied the right to be a candidate of a
political party. And similarly, in case the said candidate has won the seat of National
Assembly or a Provincial Assembly in the General Elections and has been notified as
returned candidate by ECP he would remain a member of the house, representing the said
political party, and ECP has no authority under the law to declare him an independent or
belonging to another political party or otherwise. The only exception to this principle is
when the candidate of a political party contesting election for the National Assembly or
Provincial Assembly submits a written declaration to ECP or the returning officer under his
signatures stating that he is withdrawing from his position, as a candidate of a political party.
Politics is not for the weak or fickle. Once a declaration has been rendered by a candidate to
represent a political party, withdrawing the same, and that too, in writing would be
estopped to revert back to his earlier stance of representing the said political party.

Secondly, we have candidates who submitted their nomination papers as candidates on

the list of the political parties for reserved seats for women and non-Muslims.

Finally, we have those, who submitted their nomination papers, as independent

candidates.
 Reserved seats - Non-Muslims (National Assembly) Women and Non-Muslims (Provincial
Assemblies)

Given the above legal position provided under the law for allocation of reserved seats for
women in the National Assembly, we note that the same principles would also apply to
allocation of reserved seats for non-Muslims in the National Assembly provided under
Article 51(6) (e), and that of women and non-Muslims in the Provincial Assemblies under
Article 106(3)(c) of the Constitution. Though there is a marked distinction between the
reserved seats for women in the National Assembly and that of other reserved seats. It is
notable that the constituency for the reserved seats for the non-Muslims in the National
Assembly is the whole country and the reserved seats are to be allocated on the basis of the
total number of seats secured by a political party in the National Assembly. Similarly, as far
as the reserved seats for women and non-Muslims in the Provincial Assemblies are
concerned, the constituency for the same is each province and the reserved seats are to be
allocated on the basis of the total number of returned candidates of the political party in
such Provincial Assembly. The mode and manner for a political party to avail the reserved
seats remains the same in all cases.

A political party has to not only file the list of candidates for the reserved seats but also
ensure that its nominee candidates have filed their nomination papers for election to the
reserved seats within the time set by ECP. Failure on the part of a political party to fulfill any
one of the two conditions stated above, and that too, within the prescribed time fixed by
ECP under the law would disentitle them to be allocated the reserved seats within the
enabling provisions of Articles 51 and 106 of the Constitution.

Case of Sunni Ittehad Council

8. Given the above exposition of the mandate of law, it is necessary to carefully examine
the stance of the appellants, who seek reserved seats for women and non-Muslims in the
National and Provincial Assemblies for SIC.

9. SIC is a registered political party, but it did not field any candidate for a seat in the
National Assembly or Provincial Assemblies in the General Election, 2024. Thus, having won
no seat in the houses, it cannot seek to include the independent returned members of the
respective houses to enhance its strength for the allocation of reserved seats within the
contemplation of Articles 51 and 106 of the Constitution. Further, SIC had not submitted any
list of candidates for reserved seats for women or for non-Muslims within the period fixed
by ECP, as reflected in the Schedule of Election notified in the official gazette. In fact, the
Court was informed during the hearing of the present case that SIC had till the date of
decision of the present appeal not submitted the requisite list of candidates. Needless to
mention, the law mandates that with the filing of the list of candidates of the political party
for the reserved seats for women and non-Muslims in the National Assembly and Provincial
Assemblies, the nominee candidates haveto also file their nomination papers for scrutiny,
as any other candidate contesting election for the general seat.

Given the above legal infirmities and inactions in taking the requisite steps by SIC, the joining
of independent returned candidates would be of no legal avail in respect of enhancing its
numerical strength for allocation of reserved seats for women and non-Muslims in the
National Assembly and Provincial Assemblies under Articles 51 and 106 of the Constitution.

Sahibzada Muhammad Hamid Raza - Chairman of SIC

10. Sahibzada Muhammad Hamid Raza (appellant No.2) contested the election for a seat in
the National Assembly (NA-104, Faisalabad). The nomination papers he submitted before
the Retuning Officer were neither clear nor consistent with his stance taken in the present
appeal before this Court. During the proceeding of the present case, the Court was provided
copies of the nomination papers and the requests in writing submitted by Sahibzada
Muhammad Hamid Raza to the Returning Officer and ECP, and a perusal thereof unfolded
the inconsistent position he had taken, as regards his affiliation with a political party.
Succinctly, his affiliation swayed from belonging to SIC (alliance with PTI) and finally to
Pakistan Tehreek-e-Insaf Nazriati (PTI-N). To make the matter more complicated for the
appellants, he submitted to the Returning Officer, a certificate of PTI, as its official candidate
for elections to the seat of the National Assembly. With such wavering political position
taken by Sahibzada Muhammad Hamid Raza, it would not be legally correct to declare him a
returned candidate of SIC.

11. Since SIC does not fulfil the conditions prescribed for a political party under the enabling
provisions of the Constitution and the law to be allocated reserved seats for women and
non-Muslims in the National Assembly and Provincial Assemblies, therefore, the appeals
filed by SIC and its Chairman are dismissed.

Mst. Kanwal Shauzab

12. Mst. Kanwal Shauzab, purporting to be the President of women wing of PTI and also a
nominated candidate of PTI in the list submitted by the PTI for reserved seats for women in
the National Assembly, who was not a party before the Peshawar High Court, has moved a
petition challenging the impugned judgment of the Peshawar High Court, Peshawar. The said
petition was not numbered; however, the Court allowed the learned counsel to make his
submissions on behalf of Mst Kanwal Shauzab challenging the impugned judgment.

13. As the main appeal filed by SIC (C.A. No. 333 of 2024) has been dismissed and the
findings so recorded by the Peshawar High Court, Peshawar have been maintained, it would
not be appropriate to pass any findings on locus standi of Mst. Kanwal Shauzab in agitating
her grievance in support of SIC, lest it may prejudice her right to be elected as a member of
the National Assembly, being on the list of candidates submitted by PTI for the reserved
seats for women in the National Assembly.

Pakistan Tehreek-e-Insaf (PTI)

14. PTI, a registered political party, fielded its candidates for seats in the National Assembly
and Provincial Assemblies in the General Elections, 2024. But none was allowed or
recognized by ECP to contest elections for the general or the reserved seats, as the
candidate of PTI. And yet, for reasons not known, the matter has not been agitated by PTI
before this Court. In fact, at the very end of the proceedings of the present appeals, that
spanned over a month with eight long hearings commencing from the 3rd June, 2024 to the
12th July, 2024; to be precise on 26th June, 2024, an application (CMA No. 5913 of 2024)
was filed by PTI and Barrister Gohar Ali Khan for their impleadment, as interveners, and that
too, to assist this Court in the present appeals. Interestingly, there was no specific prayer for
a definite declaration in favour of PTI for allotment of reserved seats for women and non-
Muslims. In essence, the application so made challenged the assertions of ECP with respect
to PTI, seeking reserved seats for women and non-Muslims for both SIC and PTI, while
contesting the allocation of these seats to other political parties.

15. Upon examining the record relating to the General Election, 2024 submitted by ECP, I
found its actions and inactions deeply concerning. Regarding the issue raised in the present
appeals, it is important to note that four candidates, namely; Mr. Gohar Ali Khan (NA-10),
Mr. Umer Ayub (NA-12), Mr. Ali Asghar Khan (NA-16), and Shahzada Gastasab Khan (NA-15)
not only declared themselves to be candidates representing PTI but also submitted
certificates of PTI nominating them, as its candidates in their respective constituencies. It
was also noted that they had not filed any application to ECP or their respective Returning
Officers to be declared independent candidates or otherwise. Despite this, and for reasons
known only to ECP, these four PTI candidates were not notified as returned candidates
representing PTI. The Act and the Rules do not grant ECP the authority to declare such
returned candidates, as independent candidates. Similarly, another list provided by ECP
revealed returned candidates who, in their nomination papers, declared themselves to
represent PTI, duly accompanied by certificates of the said party nominating them as their
candidates for election of the respective constituencies. They did not file any application
with ECP or the Returning Officer to be declared as independent candidates. Among these
returned candidates, six were particularly notable: Mr. Sohail Sultan (NA4), Mr. Arbab Amir
Ayub (NA-29), Mr. Sher Ali Arbab (NA-31), Mr. Naseem Ali Shah (NA-39), Mr. Rana Atif (NA-
101) and Mr. Mumtaz Mustafa (NA-171). These returned candidates also fulfilled the
condition of making declaration in their nomination forms and submitting certificates from
PTI nominating them as their official candidates for election in their respective
constituencies. Without there being any written declaration on their part to be declared as
independent candidates, ECP had no authority under the law to declare them other than
returned candidates representing PTI in the National Assembly.

16. At this stage, it is pertinent to mention, without naming them, certain candidates
nominated by PTI for constituencies in the National or Provincial Assemblies who, after
being declared returned, joined another political party or sought to be treated as
independent. This behavior on their part, raises serious concerns about disregarding the
trust reposed in such returned candidates by the voters, thus undermining the will of the
people.

17. Articles 218 and 219 of the Constitution mandate ECP to conduct elections in a manner
that ensures they are conducted honestly, justly, fairly, and in accordance with the law. The
material which was brought to the attention of the Court during the proceedings of the
present case, in particular, the manner in which retuned candidates of PTI were declared
independent, clearly demonstrates that ECP was unable to perform its constitutional duty as
mandated under the law. However, passing any definite finding regarding the exact number
of seats won by PTI in the National Assembly and Provincial Assemblies in the General
Election, 2024 would not be legally appropriate for the reasons that:

Firstly, PTI has not approached this Court for any such direction. Passing a definite finding by
this Court would amount to invoking suo motu jurisdiction under Article 184(3) of the
Constitution, which in the circumstances of the present case, would be contrary to the ratio
of the judgment rendered by this Court in SMC No.4/2021 (PLD 2022 SC 306), as partially
modified by Section 3 of the Supreme Court (Practice and Procedure) Act, 2023.

Secondly, the information and record provided to the Court did not include the particulars of
returned candidates in the four Provincial Assemblies. Similarly, with regard to the election
results of the National Assembly, a thorough scrutiny is required before passing any definite
finding that could deprive a returned candidate of their fundamental right of being member
of a political party. Furthermore, passing such a finding on the conduct of returned
candidates may expose them to adverse consequences under the law. Legal propriety
demands that this matter be left to the returned candidates, their respective political
parties, the Speakers of the National Assembly and the Provincial Assemblies, and ECP to
address in accordance with the law. Any finding at this stage would prejudice their case,
especially without affording them the right to a hearing.

Finally, while the undeniable power of this Court to do complete justice under Article 187 of
the Constitution is recognized, exercising this power in the absence of an aggrieved party
directly approaching the Court could set a dangerous and far-reaching precedent. Such a
course risks undermining the principles of due process and judicial restraint, potentially
leading to an overreach of judicial authority. The exercise of this power must, therefore, be
reserved for exceptional circumstances, where there is a clear and compelling need to
intervene to bolster the rights of the aggrieved petitioner, and prevent a miscarriage of
justice. In the present case, however, the matters before the Court do not meet this
threshold. Nevertheless, based on what has been presented before this Court, the role of
ECP has fallen short of the constitutional obligations entrusted to it. However, the remedy
for such shortcomings lies in the processes provided within the legal framework, not in
judicial pronouncement of the apex Court, and that too, without providing hearing to all
concerned parties. It is imperative to uphold the fundamental principle of due process and
the sanctity of the due judicial process. This Court must, therefore, exercise caution to
preserve the integrity of judicial proceedings and ensure that justice is administered within
the boundaries set by the Constitution.

Conclusion

18. In all fairness, without disturbing the impugned judgment, ECP is directed to revisit its
notification of returned candidates, keeping in view that a returned candidate, who declared
himself to represent a political party and submitted the certificate of that political party,
nominating the said candidate to be its official candidate for election for the respective
constituency and has not withdrawn his declaration by any written intimation, has to be
declared a returned candidate representing the said political party and not otherwise. The
needful be done within seven days, if not earlier, after providing an opportunity of hearing
to any affected party and, thus, the reserved seats for woman and non-Muslims are to be
allotted to all deserving political parties, accordingly.

19. Consequently, civil appeals filed by SIC and its Chairman are dismissed in the above
terms. As these appeals have been dismissed on merits, the connected civil petitions
challenging the impugned judgment are also dismissed.

20. The above are the reasons for the short order dated 12th July, 2024 which read:

"For reasons to be recorded later, Civil Appeals Nos. 333 and 334 of 2024, C.M.A. No.
2920 of 2024 in Civil Appeal No. 333 of 2024, Civil Petitions Nos. 1612, 1613, 1614, 1615,
1616 and 1617 of 2024 and C.M.A. No. 3554 of 2024 in C.P. Nil of 2024 are dismissed in
terms that:

1. Sunni Ittehad Council does not fulfil the conditions prescribed for a political party under
the enabling provisions of the Constitution of Islamic Republic of Pakistan ("Constitution")
and the law to be allowed/allocated reserved seats for women and non-Muslims in the
National Assembly or the Provincial Assemblies.

2. Pakistan Tehreek-e-Insaf ("PTI") fulfils the conditions prescribed for a political party
under the enabling provisions of the Constitution and the law to be allowed/allocated
reserved seats for women and non-Muslims, in terms that:

i. A candidate for a seat in the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to PTI and duly submitted a
certificate of the same political party confirming that he/she is the nominated candidate of
PTI for the respective constituency, shall remain so, and cannot be declared independent,
unless he/ she submitted a written declaration to the Election Commission of Pakistan or
Returning Officer to be treated as the candidate of another political party or as an
independent candidate;

ii. A returned candidate to the National Assembly or the Provincial Assembly, who in
his/her nomination paper has declared on oath to belong to PTI and duly submitted a
certificate of the same political party confirming that he/she is the nominated candidate of
PTI for the respective constituency, shall remain so, and this consistent position maintained
by a returned candidate throughout the electoral process should be legally recognized by
the Election Commission of Pakistan and such returned candidate cannot be treated as the
returned candidate of another political party or as an independent returned candidate, and
thus, the reserved seats for women and nonMuslims are to be allowed/allocated to PTI,
accordingly;

iii. A candidate nominated by PTI for a constituency of the National Assembly or the
Provincial Assembly who, after being declared returned, joined another political party or
sought to be treated as independent, raises serious concerns about disregarding the trust
reposed in him/her by the voters, thus undermining the will of the people; and

iv. The legal implications, effects and consequences of the determinations made above in
paragraphs 2(ii) and 2(iii), as well as the actions or inactions of the Election Commission of
Pakistan thereon, although deeply concerning, have not been challenged in the present
appeals and petitions; and the persons who would be affected or aggrieved are not parties
before this Court. Therefore, issuing definitive directions to the Election Commission of
Pakistan qua the allocation of specific number of reserved seats for women and non-
Muslims to a political party in the National Assembly and the Provincial Assemblies would
not be legally appropriate.

3. Accordingly, the Election Commission of Pakistan is directed to decide the allocation of

reserved seats for women and non-Muslims to political parties in the National Assembly and
the Provincial Assemblies in the light of the determinations made hereinabove after
providing an opportunity of hearing to the parties concerned, and if required revisit its
earlier decisions on the matter. The needful be done within seven days of the receipt of this
order."

Sd/-

Judge

Islamabad.

Dated: 13th August, 2024.

Sr. No. Heading Page #

1. Conduct of Election: 219

2. Role of ROs: 220

3. Election to Seats Reserved for Women and non-Muslims 221

4. Procedure to Contest Election to the Reserved Seats: 222

 5. Determination of Reserved Seats: 223

6. Whether Reserved Seats can be left Vacant: 224

7. Facts of the Case: 224

8. Findings: 225

9. Status of Returned Candidates who joined SIC: 227

10. Political Party: 227

11. Status of PTI 229

12. Entitlement of PTI for the Reserved Seats: 230

13. Independents: 231

15 Short order dated 12.7.2024 232

JAMAL KHAN MANDOKHAIL, J.---We respectfully do not agree with the findings of the
majority judgment with regard to providing an option to members of National and Provincial
Assemblies to join Pakistan Tehreek-e-Insaf ("PTI") within a period of fifteen days. These are
the reasons for our short order dated 12.07.2024.

Conduct of Election:

2. Under Article 218 of the Constitution of the Islamic Republic of Pakistan, 1973
('Constitution'), it shall be the duty of the Election Commission of Pakistan ('ECP') to organize
and conduct the elections honestly, justly, fairly and in accordance with law. Under section
66 of the Elections Act, 2017 ('the Act'), any person contesting elections from the platform of
a particular political party, shall file a declaration in writing before the concerned Returning
Officer ('RO') about his affiliation with a particular political party, if any, along with a
certificate (commonly known as party ticket) from the political party showing

that he is that party's candidate from the constituency. According to section 67(3) of the Act,
a candidate not nominated by any political party, shall be called as "independent candidate".
Thus, to be a nominated candidate of a particular political party, a declaration of affiliation
from a candidate and a certificate from that party, showing his nomination is a condition
precedent.

Role of ROs:

3. The role of ROs is the most significant. The Act assigns them the duty of receiving
nomination papers, scrutinizing and deciding fate of them. The ROs have to allot symbols to
contesting candidates, and thereafter, shall publish their names as provided by section 68(1)
of the Act. The list shall contain name of the candidates, symbols allotted to them, their
party affiliation, if any, according to their declarations. The ROs shall supply a copy of the list
to each candidate and to exhibit it at a prominent place at each polling station on the day of
the poll and to send a copy thereof to the ECP, which shall upload it for display on its website
enabling each candidate and the general public to know about the detail mentioned in the
list. According to rule 56(1) of the Election Rules, 2017 ('the Rules'), the list of contesting
candidates shall be drawn up in Form 33, that has a set template. The ROs have no other
option, but to fill-in the form on the basis of information given by a candidate in his
nomination papers and declaration, in the following format:
 Under section 90(10) of the Act, after close of poll, every Presiding Officer shall prepare
a Result of the Count of votes in Form 45, as provided by rule 81 of the Rules. The ROs shall
forthwith prepare and announce the provisional Consolidated Statement of Result of the
Count in accordance with section 92 of the Act. The ROs shall prepare a final consolidated
result in terms of section 95 of the Act, on the basis whereof, the ECP shall notify results of
returned candidates of every constituency.

Election to Seats Reserved for Women and non-Muslims:

4. In order to ensure full participation of women and non-Muslims in all spheres of

national life, Articles 51(3) and 4 and Article 106(3) of the Constitution has determined their
due representation in National and Provincial Assemblies, respectively. Article 51(6)(d) of the
Constitution provides a procedure and a formula for election to the seats reserved for
women in National Assembly as under:

(6) For the purpose of election to the National Assembly,-

(a) .......................................

(b) .......................................

(c) ........................................

(d) members to the seats reserved for women which are allocated to a Province under
clause (3) shall be elected in accordance with law through proportional representation
system of political parties' lists of candidates on the basis of total number of general seats
secured by each political party from the Province concerned in the National Assembly:

Article 51(6) (e) of the Constitution provides a procedure and a formula for election to
the seats reserved for non-Muslims in National Assembly as under:

(e) members to the seats reserved for non-Muslims shall be elected in accordance with law
through proportional representation system of political parties' lists of candidates on the
basis of total number of general seats won by each political party in the National Assembly:

Article 106(3)(c) of the Constitution provides with the procedure and a formula for
election to the seats reserved for women and non-Muslims in Provincial Assemblies as
under:

"106. (1)

(2) ......

(3) For the purpose of election to a Provincial Assembly,--

(a) ......

(b) ......
 (c) the members to fill seats reserved for women and non-Muslims allocated to a
Province under clause (1) shall be elected in accordance with law through proportional
representation system of political parties' list of candidates on the basis of the total number
of general seats secured by each political party in the Provincial Assembly."

Procedure to Contest Election to the Reserved Seats:

5. According to the above provisions of the Constitution, members to the seats reserved
for women and non-Muslims shall be elected in accordance with law, through proportional
representation system of political parties' lists of candidates. All matters relating to the
conduct of election and matters connected therewith or ancillary thereto are enshrined in
the Act. Section 104 thereof provides a complete procedure for the conduct of election to
the reserved seats as under:

104. Party lists for reserved seats.---(1) For the purpose of election to seats reserved for
women and non-Muslims in an Assembly, the political parties contesting election for such
seats shall, within the period fixed by the Commission for submission of nomination papers,
file separate lists of their candidates in order of priority for seats reserved for women and
non-Muslims with the Commission or, as it may direct, with the Provincial Election
Commissioner or other authorized officer of the Commission, who shall forthwith cause such
lists to be published for information of the public:

Provided that the list submitted by a political party shall not be subject to change or
alteration either in the order of priority or through addition of new names in the list or
omission of any name after expiry of the date of submission of nomination papers.

(2) The parties' lists referred to in subsection (1) may contain as many names of
additional candidates as a political party may deem necessary for contesting seats reserved
for women and non-Muslims, to provide for any disqualification of candidates during
scrutiny of nomination papers or for filling of any vacant seats during the term of an
Assembly.

(3) A candidate to a seat reserved for women or non-Muslims shall file the nomination
papers on the Form on or before the last date fixed for filing of nomination papers for the
election and the nomination papers shall, as nearly as possible, be scrutinized in the same
manner as nomination papers of candidates on general seats are scrutinized under section
62.

(4) ---

(5) ---

(6) ---

(7) ---"
 Since Article 51(6)(d)&(e) and Article 106(3)(b)&(c) of the Constitution provide that
members to the seats reserved for women and non-Muslims shall be elected in accordance
with law, therefore, the procedure and method provided by the above provision of the Act
must be acted upon in its letter and spirit, as it is a command of the Constitution. If a law
requires an act has to be done in a particular manner, that is how it should be done. Thus,
no party is entitled to file list of its candidates to the reserved seats contrary to the
provisions of section 104 of the Act, after the period fixed by the ECP for submission of
nomination papers.

Determination of Reserved Seats:

6. In the context of Article 51(6)(d)&(e) of the Constitution, a political party means a party
that has won/secured at least a general seat in the National Assembly, and in the context of
Article 106(3)(c) of the Constitution, a political party means a party that has won/ secured at
least a general seat in a Provincial Assembly. The provisos to these Articles fixes three days'
time for the independent returned candidates to join any political party, which won general
seats in the election. After expiry of three days, the ECP shall publish a list of total number of
general seats won by each political party, including the independent returned candidates,
who joined that party. The seats reserved for women and non-Muslims shall be allocated
through proportional representation system of political parties' lists of candidates on the
basis of the total number of general seats secured by each political party.

7. A proportion is an equation in which two ratios are set equal to each other. There is no
fixed number or ratio of general seats in the said provisions of the Constitution for the
purpose of allocation of reserved seats. The only basis for allocation of reserved seats
depends upon the total number of general seats secured by a political party, after induction
of independent returned candidates, if any. In general elections, the number of the general
seats won by political parties' nominated candidates and independents vary. It is for this
reason, the ECP in every election sums up total general seats secured by all the political
parties including the independents joining political party(ies) and thereafter divides them in
the case of women by sixty seats reserved for women in order to determine the ratio on the
basis whereof the reserved seats are to be allocated. This procedure has further been
elaborated by rule 94 of the Rules. In this way, the share of each political party out of the
seats reserved for women is determined. The same procedure is to be followed for the
allocation of seats reserved for non-Muslims in the National Assembly. This formula also
applies for the allocation of reserved seats in the Provincial Assemblies, keeping in view total
number of general seats fixed by the Constitution for each Provincial Assembly.

Whether Reserved Seats can be left Vacant:

8. In the general elections of 2024, a large number of independent candidates won. As a

result, the number of general seats won by political parties in the recent election is less than
it was in previous elections. It was alternatively argued that after allocation of share of each
political party on the basis of general seats won by each political party, rest of the reserved
seats may be left vacant. A question arises whether seats reserved for women and non-
Muslims in National and Provincial Assemblies can be left vacant? According to Article 34 of
the Constitution steps shall be taken to ensure full participation of women in all spheres of
national life. The Constitution allocated a specific number of seats for women and non-
Muslims in Parliament and each Provincial Assembly. However, they can also contest on
general seats, thereby enabling them to contribute in the process of legislation and policy
making. It is the constitutional responsibility of every organ and authority of the State and
each person performing functions on behalf of an authority of the State, every political party
and every citizen to act in accordance with the provisions of the Constitution and the law.
The seats reserved for women and non-Muslims is their constitutional right, as such, they
cannot be deprived from their such fundamental right by leaving any reserved seat vacant.
Similarly, no formula other than provided by the above provisions of the Constitution can be
applied for allocation of reserved seats to political parties.

Facts of the Case:

9. The ECP had notified the Election Program for the election of National Assembly and all
Provincial Assemblies through a Schedule ('Schedule') on 15 December 2023, which
prescribed a specific period for submission, scrutiny and withdrawal of nomination papers
for general seats and for seats reserved for women and non-Muslims. A number of
candidates contested election to National and Provincial Assemblies independently, out of
whom, eighty (80) returned candidates joined Sunni Ittehad Council ('SIC'), within three days
of their notifications, as prescribed by the Constitution. SIC is an enlisted political party and
Sahibzada Hamid Raza being its Chairman, requested the ECP for submission of his party's
list of candidates and allocation of seats reserved for women and non-Muslims to SIC on the
basis of total number of independent candidates, who joined it. The request of the appellant
was declined by the ECP vide order dated 01.03.2024, which was assailed before the
Peshawar High Court, but failedp1, hence these appeals.

10. The learned counsel for the appellant stated that after the independent candidates
joined SIC, in a way, it secured general seats, therefore, SIC was entitled for its share in the
seats reserved for women and non-Muslims in National and Provincial Assemblies,
respectively. The learned counsel stated that though SIC did not win general seats in
National or any Provincial Assembly, but because of joining independent candidates, SIC has
secured general seats. He suggested that after securing general seats, a purposive and
progressive interpretation of Article 51(6) (d)&(e) and Article 106(3) (c) of the Constitution is
required in order to consider SIC as a political party for the purpose of allocation of reserved
seats. He made a reference to PLD 2024 SC 6982.

Findings:

11. The Supreme Court ('SC') can interpret the Constitution, but it must ensure that words
are not read into it nor should it ascribe artificial meaning to commonly understood words.
Article 51(6) (d) & (e) and Article 106(3)(c) of the Constitution are clear enough to
understand. The said provisions state that election to the seats reserved for women and
non-Muslims shall be conducted in accordance with the law, which is the Act. Its section 104
provides that political parties shall within the period fixed by the ECP for submission of
nomination papers, file separate lists of their candidates with the ECP to seats reserved for
women and non-Muslims; and the listed candidates shall file nomination papers by or before
the last date fixed for filing of nomination papers for general seats as prescribed by the
Schedule. The nomination papers filed for reserved seats shall be scrutinized in the same
manner as nomination papers of candidates on general seats are scrutinized under section
62 of the Act.

12. Admittedly, the appellant (SIC) did not nominate any candidate for general seats nor
filed its list of candidates and their nomination papers before the ECP within the stipulated
period, which is a condition precedent to elect candidates to the seats reserved for women
and non-Muslims. Although SIC is an enlisted political party and the independent elected
members have a constitutional right to join it, but it does not mean that it fulfils the criteria
necessary for allocation of seats reserved for women and non-Muslims. As SIC did not
contest election, therefore, in the context of Article 51(6)(d)&(e) and Article 106(3)(b)&(c) of
the Constitution, it cannot be termed as a political party. Merely because a large number of
independent returned candidates joined SIC does not entitle it to file its list of candidates for
reserved seats, and that too after the conduct of election. All the Hon'ble members of the
Bench have unanimously held that the appellant is not entitled to file its list of candidates
for the seats reserved for women and non-Muslims.

13. As far as the judgment relied upon by the learned counsel for the appellant (PLD 2024
SC 698) with regard to purposive and progressive interpretation of the Constitution is
concerned, relevant portion whereof is reproduced as under:

In absence of express words or an enactment, preventing the Council from inquiring into
the matter upon resignation or retirement of a judge, jurisdiction of the Council cannot be
abolished, ousted or terminated. Since there is no express provision in the Constitution, nor
is there any enactment, preventing the Council from continuing its proceedings of inquiry in
a situation where a judge is retired or resigns before conclusion of the inquiry, it is the
constitutional obligation of the Council to conclude the inquiry initiated against a judge and
form an opinion regarding his conduct.

In the referred case, Article 209 of the Constitution was under discussion, which assigns
power to the Supreme Judicial Council ('SJC') to initiate an inquiry against a judge of
Supreme Court, Federal Shariat Court or a High Court. The Constitution does not provide for
automatic termination of an inquiry already initiated against a sitting judge, upon his
resignation or retirement. It was for this reason that this Court held that once the SJC
initiates the inquiry against a sitting Judge, it shall be taken to its logical conclusion. Had the
provision of Article 209 of the Constitution been interpreted progressively or purposively, in
a manner that upon retirement or resignation of a judge, the inquiry initiated by a
constitutional body shall stand terminated, it would have amounted to adding these words
into the Constitution, which is beyond the domain of this Court. The referred judgment in
the circumstances is of no assistance to the appellant, rather it strengthens the view that the
Constitution has to be interpreted rigidly and to be implemented in its letter and spirit. As
has been discussed above that the appellant does not qualify for reserved seats, therefore,
we cannot mould the Constitution in a manner to facilitate SIC. The appeals to such extent
failed.

Status of Returned Candidates who joined SIC:

14. In order to ascertain the status of 80 returned candidates, who joined SIC, the learned
counsel for the ECP on our directions, produced their nomination papers. Perusal whereof
would reveal that out of the 80 returned candidates, 39 returned candidates had filed
declarations about their affiliation with PTI. Despite such fact, the ROs while publishing list
of the contesting candidates in Form 33, showed them as independents, on the basis
whereof, they contested election and were subsequently notified as independent returned
candidates by the ECP. The ROs did not fill Forms 33 of these 39 candidates in consonance
with their declarations. The learned counsel for the ECP admitted the fact that those 39
candidates filed declarations about their affiliation with PTI, but because of refusal of symbol
by the ECP, endorsed by this Court on 13 January 2024 in the case of Election Commission of
Pakistan3, PTI was not considered as a political party for the purpose of election. He relied
upon the Explanation to rule 94 of the Rules, which is reproduced as under:

'Explanation. For the purpose of this rule, the expression "political party" means a
political party to which a symbol has been allocated by the Commission."

The learned counsel for the ECP stated that on account of non-allocation of symbol to
PTI, the declarations of the candidates and their nomination by PTI were not accepted.
According to him, all of them were independent returned candidates, who contested
election on different election symbols. They had exercised their constitutional right by
joining SIC out of their free will and consent.

Political Party:

15. Under Article 17(2) of the Constitution "Every citizen, not being in the service of
Pakistan, shall have the right to form or be a member of a political party, subject to any
reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan,
public order or morality." A political party means a group of persons organized to acquire
and exercise political power. Section 2(xxviii) of the Act defines a political party as under:

"political party" means an association of citizens or a combination or group of such

associations formed with a view to propagating or influencing political opinion and
participating in elections for any elective public office or for membership of a legislative
body, including an Assembly, the Senate, or local government;
 The definition in the Act is so clear that the Parliamentarians did not consider the need
of further explanation. To the contrary, rule 94 of the Rules provides an explanation to the
definition of a political party. It is a settled proposition of law that rules framed under a
Statute must remain within its domain and cannot transgress the limits and parameters of
the statute4. The explanation to rule 94 of the Rules is, therefore, beyond the scope of the
definition of a political party, hence, amounts to transgressing the limits and parameters
provided by section 2(xxviii) of the Act. The Constitution has recognized the right of
formation of a political party, subject to any reasonable restrictions imposed by law in the
interest of sovereignty and integrity of Pakistan, public order and morality. After complying
with the provisions of sections 200 and 201 of the Act, a political party shall be enlisted with
the ECP in a manner as provided by section 202 of the Act. Under section 215 of the Act, a
political party enlisted under the Act shall be eligible to obtain an election symbol for
contesting election for National and Provincial Assemblies as well as local governments.
However, under section 215(5) of the Act, if a political party fails to comply with the
provisions

of section 209 or 210 of the Act, and fails to conduct its intraparty election, the ECP shall not
allocate an election symbol to such political party or combination of political parties in
subsequent election. This is the reasonable restriction imposed upon a political party in the
circumstances.

16. Primarily, the purpose of allocation of a symbol to political parties is to facilitate their
voters in identifying, recognizing and remembering the party's nominated candidates. If an
election symbol of a political party is revoked for any reason, there is no penal consequence
in the Act, except losing the right of having a common election symbol. Thus, refusing
symbol to any political party does not affect its existence nor does it lose the rest of its rights
available to it under the Constitution and the Act. Non-allocation of symbol to a political
party, in no way prevents a candidate from filing a declaration about his affiliation with that
political party, nor does it prevent such political party from nominating a candidate to
contest an election. Once a political party is enlisted, it has a right under section 206 of the
Act to nominate candidates for election to the National and Provincial Assemblies. If a
candidate is nominated by a political party having no common symbol, under section 67(1)
of the Act, he shall be allotted one of the prescribed symbols not allocated to any political
party. Such political party can still propagate and influence political opinion and agenda in
order to promote its nominated candidates. The primary role of a political party is to place a
political agenda and policies to persuade people. To achieve its goal, a political party
contests election by putting up candidates, and voters choose the party's nominated
candidates on the basis of its manifesto, policies and programs. The party which wins
majority seats in the election, forms a government and the parties which win less number of
seats in the election, form an opposition. In any case, an enlisted political party shall exist
and has a right to exercise its political power by participating in election, unless the Supreme
Court upholds the declaration made against a political party by the Federal Government
under section 212 of the Act, that such political party shall stand dissolved forthwith.

Status of PTI:

17. It is important to mention here that on account of not-conducting of intra-party

election, the ECP had declined to allot symbol to PTI, because this is what section 215(5) of
the Act stipulates. However, this did not mean that affiliation of the candidates with PTI
stopped or that PTI stopped being a political party to contest election. Candidates from
different constituencies from National and Provincial Assemblies filed nomination papers
and declarations showing their affiliation with PTI, but the ROs while issuing list of contesting
candidates drawn up in Form 33, declared them as independents. The decision of the ROs
was solely based upon the explanation to rule 94 of the Rules and on account of the decision
of the ECP, revoking symbol of PTI. The election authorities did not properly apply the
relevant provisions of the Constitution and the Act. The PTI's affiliated candidates had
submitted their declarations by 24 December 2023, much earlier than the judgment passed
by this Court on 13 January 2024. The contention of the learned counsel for the ECP that the
decision of declaring PTI's affiliated candidates as independents, were pursuant to the
judgment of this Court, is unfounded. There was no restraining order either from the ECP or
in the judgment of this Court, preventing PTI from nominating candidates and participating
in election, but, the ROs and the ECP misinterpreted the said judgment, which created an
anomaly.

18. Admittedly, a large number of renowned lawyers are members of PTI and many of them
contested election of the year 2024 for the general seats in National and Provincial
Assemblies, filing declarations about their affiliation with PTI. Surprisingly, none of them had
challenged the order of the ROs, declaring them as independent candidates and their
notifications being independent returned candidates issued by the ECP. It is not known as to
what had prevented them to do so? The learned counsel for the appellant and the PTI were
unable to assign any reason in this behalf. Though, a PTI candidate, Mr. Salman Akram Raja,
challenged the order of the RO but did so only to the extent of declaring him as an
independent candidate, but surprisingly he did not take the matter to its logical conclusion.
His petition was objected to by the Registrar, against which, a chamber appeal was provided
by the Supreme Court Rules, 1980 but he did not avail such remedy, for the reason best
known to him. We must say that the administration of PTI and its nominated candidates for
National and Provincial Assemblies, were equally responsible for misinterpreting the
judgment of this Court by presuming the PTI's nominated candidates as independents. They
were negligent in failing to challenge the orders of the ROs and the ECP.

Entitlement of PTI for the Reserved Seats:

19. In the case in hand, the matter pending before this Court pertains to administrative
responsibility of the ROs and the ECP with regard to allocation of seats reserved for women
and non-Muslims, as provided by the Constitution and the Act. They have committed an
illegality by declaring PTI's affiliated candidates as independents. These appeals pending
before us is a continuation of the original matter of publishing list of contesting candidates
drawn up in Form 33 by the ROs and notifications of returned candidates issued by the ECP
in their administrative capacities. Since right of the electorate and of candidates for the seats
reserved for women and non-Muslims is involved, they cannot be penalized because of the
act of the ROs, the ECP, the PTI's administration and of those 39 candidates, who did not
agitate their grievances. To protect and preserve their constitutional right, we can take
notice of the matter.

20. Choosing a candidate for general seats and the seats reserved for women and non-
Muslims is one of the fundamental rights of an electorate, guaranteed by the Constitution
and the law. It is therefore, not a matter solely of the PTI, rather it involves a constitutional
right of an electorate and legitimate interests of women and non-Muslims, which has to be
provided to them on the basis of general seats secured/won by PTI. Protecting their
constitutional rights and interests should have been the prime consideration of the ROs and
the ECP, but the needful was not done and they acted contrary to the command of the
Constitution and the law. We do not agree with the reasons which prevailed upon the ROs
and the ECP, declaring PTI's 39 affiliated returned candidates as independents. The
electorate voted for them in their such capacity. The act of the ROs and the ECP, declaring
them as independent returned candidates amounts to depriving them from their
constitutional right of forming a Parliamentary Party of PTI in National and Provincial
Assemblies. Similarly, it has also deprived the PTI's women and non-Muslims candidates
from their legitimate fundamental right to participate in national life, and to promote
agenda and policies of the political party, to which they were affiliated. Consequently, the
members to the seats reserved for women and non-Muslims shall be elected in accordance
with law on the basis of general seats won/secured, including the said 39 returned
candidates.

Independents:

21. We have perused the nomination papers of 80 candidates, who joined SIC, out of whom,
41 candidates in clear terms declared themselves as independents, while filing their
declarations without there being a certificate (ticket) from any party, including PTI. The date
for submission of nomination papers as per the Schedule was with effect from 20 December
2023 till 24 December 2023. Admittedly, none of the candidates or the leadership of PTI
came forward to claim that the candidates who declared themselves as independents, were
actually the party's nominated candidates. There is nothing on the record to suggest that
these 41 candidates were compelled, coerced, pressurized, misinterpreted the law or
judgment of this Court or was there any other peculiar circumstance beyond their control, to
declare their status as independents. In the given circumstances, there is no reason, why
they should be considered as PTI's nominated candidates. Judges decide cases in accordance
with the Constitution and law, based upon the material available before them. Any such
contention must be supported by the record, which is lacking in this case, therefore, these
41 candidates were independents. In this behalf, observations made by the Hon'ble eight
Members of the Bench in Paragraph 108 of the majority judgment as under:

108. ...The assertion of SIC and PTI that they were also PTI candidates and the electorate
voted for them for their being PTI candidates though appears satisfactory but is not
supported by the record presently before us. Therefore, it is the most challenging matter
involved in the case where the scales of the requirements of law and of justice are to be
justly, fairly and reasonably balanced.

22. According to section 67(3) of the Act, 'A candidate not nominated by any political party
(hereinafter called as 'independent candidate')'. In Paragraph 110 of the judgment, authored
by our learned brother Syed Mansoor Ali Shah, J., it is stated that, according to section 66 of
the Election Act, two elements make a person the candidate of a political party: (i) the
candidate's own declaration that he belongs to that party, and (ii) the party's certificate
(party ticket) nominating him as its candidate'. We agree with these findings and in the light
thereof, there is no dispute that these 41 candidates did not file declarations about their
affiliation with PTI, nor is there party's certificate (party ticket) nominating them as its
candidates. This establishes the fact that at the time of submission of nomination papers,
none of them had filed declarations about their affiliation with PTI, nor had a certificate
(ticket) from the said party. All these candidates after being notified as independently
elected candidates had an option to join PTI, instead they by exercising their constitutional
right, joined SIC with free will and consent, and stated so in the affidavits filed by them. It is
important to mention here that Mr. Salman Akram Raja, Advocate Supreme Court, appearing
on behalf of PTI, surprisingly supported the stance of all those who joined SIC. The
declarations in the nomination papers of 41 candidates were stated as independents, which
were also accepted by this Court unanimously. It is for this reason, the Hon'ble

majority Members gave the 41 independent candidates an option that they may join PTI by
submitting declarations about their affiliation with PTI and to obtain certificates of their
nomination by PTI, within a period of fifteen days. With great respect, we do not agree with
the decision of majority members with regard to providing opportunity to 41 independently
returned candidates, who have already joined SIC, by exercising their constitutional right.
They are now members

of SIC. Neither the Constitution nor the Act permits us to issue direction or provide an
opportunity or additional avenue to them to join another political party and that too, within
a period of fifteen days.

23. These are the reasons for our short order dated 12 July 2024, which is reproduced here
under:

For reasons to be recorded later, we dispose of these appeals, petitions and

miscellaneous applications through a short order as under:
 1. These matters involve a controversy regarding the allocation of seats reserved for
women and non-Muslims. The Sunni Itehad Council ("SIC") did not contest the General
Elections of the year 2024. SIC, which demands allocation of reserved seats on account of
inclusion of independent parliamentarians in it, did not secure a single seat in the National
Assembly

or any of the Provincial Assemblies nor submitted a list

of its candidates for seats reserved for women and non-Muslims. Thus, it is not entitled to
any of the reserved seats in the National Assembly and in the Provincial Assemblies. The
impugned judgment and the order dated 1 March 2024 of the Election Commission of
Pakistan ("ECP") to such extent is upheld.

2. Under Article 51(3) of the Constitution of the Islamic Republic of Pakistan, 1973
("Constitution"), the total number of seats in the National Assembly shall be 326, out of
which 60 seats are reserved for women and 10 seats for non-Muslims. Such right of women
and non-Muslims has been guaranteed by the Constitution. They shall be elected in
accordance with

the law through proportional representation system of political parties' list of candidates on
the basis of total number of general seats secured by each political party from the Province
concerned in the National Assembly and the Provincial Assemblies, as provided by Article
51(6) (d) and (e) of the Constitution. Therefore, they cannot be deprived of this right of
theirs by leaving these seats vacant, and all reserved seats must be filled in, as provided by
Article 224(6) of the Constitution.

3. The impugned judgment of the High Court and the said order of the ECP to the extent
of the proportional representation distribution of seats amongst the political parties which
won and secured seats is also maintained, however, since the ECP calculated and allocated
the seats to the parties by the exclusion of the Pakistan Tehreek-e-Insaf ("PTI") candidates,
therefore, to such extent, the impugned judgment of the High Court and the order of the
ECP are set aside.

4. During the hearing, it transpired that a number of candidates had submitted their
nomination papers declaring on Oath that they belonged to PTI supported by an affiliation
certificate of the said party, though some did not submit affiliation certificates of PTI,
however, since they stated on Oath that they belonged to PTI, and did not contradict
themselves, they should be considered to be members of PTI in the National and the
Provincial Assemblies. The ECP by misinterpreting the judgment of this Court dated 13
January 2024, which was regarding non-holding intra-party elections in PTI, wrongly
mentioned the said candidates of the PTI as independents in Form 33 of the Election Rules.
The ECP had no authority to declare validly nominated candidates of a political party to be
independent candidates. Similarly, a candidate once declared himself/herself as a candidate
of a political party, could not subsequently resile from his/her candidature of a particular
party, after the last date of withdrawal of the nomination papers.

5. It is important to mention here that neither the PTI nor any candidate affiliated with
PTI approached either this Court before or during the hearing of these proceedings, or the
High Court to challenge the decision of the ECP, declaring them as independents. However,
in view of the fact that the appeal and the petition are a continuation of election
proceedings before the ECP, we can look into the vires of the decision of the ECP in the light
of the provisions of Article 51(1)(d) and (e) of the Constitution read with sections 66, 67 and
104 of the Elections Act, 2017 to safeguard the interest of women and non-Muslims. As a
consequence whereof, the candidates who had submitted their nomination papers declaring
that they belonged to PTI and had not filed a document showing affiliation with another
political party before the last date of withdrawal of the nomi-nation papers, should have
been treated as the Parliamentary Party of PTI, but the needful was not done by the ECP.
Consequently, the PTI as a Parliamentary Party is entitled

to the reserved seats. The ECP should recalculate and reallocate the reserved seats amongst
the political parties, including

the PTI, as provided by Article 51(6)(d) and (e) of the Constitution.

6. The candidates who had submitted their nomination papers by 24 December 2023,
which was the last date of submission of nomination papers, and had declared themselves
either as independent candidates or had left blank the relevant column in the nomination
papers/declaration and were elected shall be considered to be independents. SIC is a
registered political party and every independent member of the National Assembly and of
the Provincial Assemblies has a right to join it. All those who joined the SIC are presumed to
have done so out of their own free will. None of them claimed to have joined SIC because of
any misunderstanding of any judgment, the law, compulsion, coercion or undue influence
and it is not for this Court to presume otherwise.

We must ensure that words are not read into the Constitution nor to ascribe artificial
meaning to commonly understood words. We must also abide by validly enacted laws and
must not do anything either to hinder or facilitate a political party by ignoring the laws
mandate.

Sd/-

(Qazi Faez Isa)

CJ

Sd/-

(Jamal Khan Mandokhail)

Judge
 Qazi Faez Isa, CJ. I agreed with the short order dated 12 July 2024 authored by Justice
Jamal Khan Mandokhail and agree with his detailed reasons thereof which have been issued
today.

2. However, I consider it my duty to point out the constitutional violations and illegalities in
the majority's short order of 12 July 2024, and the majority's detailed judgment of 23
September 2024, the order/ clarification of 14 September 2024 and the Clarification of 18
October 2024 (respectively 'the majority's short order', 'the majority's judgment', 'the
majority's order/clarification' and 'the majority's Clarification'). I do hope and expect that my
distinguished colleagues in the majority1 will reflect and correct their mistakes and ensure
that Pakistan is governed in accordance with the Constitution of the Islamic Republic of
Pakistan ('the Constitution'). Unfortunately, the review petitions against the majority short
order could not be heard because my Hon'ble colleagues (Justice Syed Mansoor Ali Shah and
Justice Munib Akhtar) outvoted me on the Committee constituted under the Supreme Court
(Practice and Procedure) Act, 2023; attached is my separate note to the minutes of the
meeting held on 18 July 2024.

3. These appeals were heard by a thirteen-member Bench of this Court, comprising of all
judges of the Supreme Court.2 The majority's short order concluded by permitting the
Election Commission of Pakistan ('ECP') and Pakistan Tehreek-i-Insaf ('PTI') to, 'apply to the
Court by making an appropriate application, which shall be put up before the Judges
constituting the majority in chambers for such orders and directions as may be deemed
appropriate'. This deviated from how courts have always functioned, was novel and
unprecedented.

4. The majority of eight judges decided to part ways with the Court, comprising of thirteen
judges, which had heard the appeals. The majority set up its own virtual court, permitted
the making of 'an appropriate application' by the ECP and PTI, and directed that such
appropriate application would only be heard by them whilst cloistered in Chambers. In doing
this the majority of the Hon'ble Judges effectively legislated, because neither the
Constitution nor any law permits what they did. Incidentally no party or counsel during the
hearing ever suggested the course of action which the majority adopted, and neither the
majority's short order nor the majority's judgment offers an explanation to justify it. In
effectively legislating the Hon'ble Judges in the majority also contradicted themselves. They
stated that the ECP and the PTI may 'apply to the Court' but then proceeded to state that
only the 'judges constituting the majority' would hear the 'appropriate application'. This was
not the only contradiction. It has been settled by the Supreme Court that a hearing of a case
after it has been decided (which would be a review petition) should be by the same Bench
and by the same number of Judges as had earlier heard the case:3

'Needless to mention that the dissenting Judges on the Bench that heard the case,
subject to their availability, are necessary members of the Bench constituted to hear review
petition filed against the majority judgment, i.e., judgment of the Court,... .'
 '10. As the judgment of the Court is considered to be the judgment of all the members
of that Bench, irrespective of its being majority judgment or unanimous judgment, there can
be no difference in judicial powers of the members ... . Hence, there can be no fetters on the
exercise of his judicial power as that would offend the fundamental constitutional value of
independence of the judiciary.'

5. The majority disregarded the precedents of this Court, including the above. They not
only carved out a separate eight-member 'court' from the thirteen-member Court, but also
innovated further by not finally concluding the hearing of the appeals, because they
permitted appropriate application to be filed, introduced timelines and changed what the
Constitution provided.

6. The timelines that were introduced were as under:

(i) 41 returned candidates to file a statement within 15 days;

(ii) Upon receipt of the above statements the ECP to give notice to the political party
concerned;

(iii) Then within 15 days the political party to submit its 'confirmation that the candidates
contesting the General Elections as its candidates'; and

(iv) The ECP within 7 days to issue and post on its website 'the list of candidates now MNAs'.

7. Judges may decide or dispose of a case as per their understanding of the Constitution
and the law but it is critical that the case must be decided or disposed of. Permitting
appropriate application to be filed by the ECP or the PTI meant that the case was not
decided or disposed of. This coupled with the stated timelines effectively kept the appeals
pending. In civil cases after a judgment is pronounced the decree follows. In constitutional
cases too a judgment can be executed, provided it is finally and conclusively decided. The
majority's short order and the majority's judgment did not conclude the appeals. The well
trodden legal path was abandoned by the majority which created unnecessary and
avoidable problems. Since the appeals were not finally decided there was no decision which
could be stated to be binding, in terms of Article 189 of the Constitution. Similarly, contempt
of court proceedings for any non-compliance of the 'order of the Court', under Article 204 of
the Constitution, cannot be initiated. The right of review, which Article 188 of the
Constitution grants, was also effectively negated.

8. The majority's short order was announced on 12 July 2024, following which the Hon'ble
Judges had to issue their detailed reasons for the same. Instead something inexplicable
happened. A purported 'order' was uploaded on the Supreme Court's website on 14
September 2024, and this was done without informing the Chief Justice, the other Judges (in
the minority), and bypassing the Registrar and the office of the Supreme Court. And, this
was done on a Saturday, after the Registrar had left. The Deputy Registrar who was still in
the premises of the Supreme Court submitted the following note to (me) the Chief Justice,
after 8 pm on Saturday, 14 September 2024:

'I bring it to your kind notice that a news is floating on the media that Supreme Court of
Pakistan has issued clarification of order dated 12.07.2024 passed in C.A. No. 333/2024
(Election - National Assembly / Reserved Seats). However, neither cause list was issued, nor
notices were issued to the parties by the office and the order has still not been received in
office till 8.00pm and was uploaded on the website.

Submitted for information, please.'

9. In view of the unusual happenings (mentioned above) I sought the following information
from the Registrar; my questions and the answers from the Registrar are mentioned below:

Questions by the Chief Justice Answers by the Registrar

1) When were the said applications filed? The application of the ECP was received in
the office of the Registrar on 26 August
2024.

2) Why were the said applications not fixed These applications were not placed before
before the Committee constituted under the Committee in view of the majority's
the Supreme Court (Practice and short order as directed by them to hear it
Procedure) Act, 2023? in Chambers.

3) How were the said applications fixed for These applications were not fixed for
hearing and how was this done without hearing rather were placed before the
issuance of cause list disclosing their majority Judges in Chambers. As such no
fixation? cause list was issued.

4) Did the office issue notices to the parties Notices were not issued to the parties nor
and to the Attorney-General for Pakistan? to the Attorney-General for Pakistan.

5) In which courtroom/ chamber were the No hearing took place on these

applications heard, and by whom? applications as the applications were
placed before the majority Judges in
Chambers.

6) Why was a cause list not issued for As the matter was placed before the
announcement of the said order? majority Judges in Chambers and no
hearing took place on the
applications,therefore, the cause list for
announcement of the said order was not
issued.

7) Why was the said order not fixed for Neither any hearing took place on the
 announcement? applications nor the judgment/order was
reserved, rather the same was decided by
the majority Judges in Chambers.

8) Without first depositing the original file Webmaster of IT Directorate uploads

and the said order in the Supreme Court's orders on the official website of this Court
office how was the said order uploaded on and did so on the directions of the
the website? Hon'ble Judges.

9) Who directed the uploading of the said As reported, the Webmaster of IT

order on the Supreme Court's website? Directorate uploaded the said order on
the official website of this court on 14
September 2024 on the direction of Mr.
Sadaqat Hussain, Sr. PS to Justice Syed
Mansoor Ali Shah (HJ-1). As also reported,
he received the said order via Whatsapp
from Mr. Sadaqat Hussain at 4:32 pm on
14 September 2024 along with the
Tagline.

10. The majority's order/clarification was admittedly passed without first listing the cases,
without issuing notices to the parties and without issuance of the requisite notice to the
Attorney-General for Pakistan. The title of the 'order' stated - 'In Chambers'. However, not all
of the said eight Hon'ble Judges were in the Supreme Court premises and some were not
even in Islamabad. By not issuing notices, not granting an opportunity of hearing, and not
conducting the hearing in open

Court, the well established rules of natural justice were transgressed, and Article 10A of the
Constitution, which gives protection to procedural fairness and has elevated due process and
fair trial to the status of a Fundamental Right, was contravened. A nine-member Bench of
this Court had recently rendered the following unanimous opinion:

'The proceedings of the trial by the Lahore High Court and of the appeal by the Supreme
Court of Pakistan do not meet the requirements of the Fundamental Right to a fair trial and
due process enshrined in Articles 4 and 9 of the Constitution and later guaranteed as a
separate and independent Fundamental Right under Article 10A of the Constitution.' 4

11. The majority's order/ clarification was incorporated into the majority's judgment (in its
paragraph 58), however, the title of the 'order' was changed to 'clarification'. The Hon'ble
Judges may have realized their non-compliance with Article 10A of the Constitution,
therefore, in the majority's judgment they stated that, 'there was no legal requirement nor
did we find it necessary to hear the parties before clarifying our own order'. However, it was
acknowledged that the same was done 'without issuing notice to or hearing the parties'.
With respect, to say that there was no legal requirement to hear the parties disregarded
innumerable judgments of this Court. 'It has been laid down as principle of law by the
superior courts that in every statute, principle of natural justice of hearing a person... shall
be deemed to have been embodied.'5 It is a '...principle of natural justice that an order
affecting the rights of a party cannot be passed without an opportunity of hearing.' 6 '...the
appellant shall have the right of being heard.'7 By not hearing the parties to the appeals the
Hon'ble Judges also effaced several millennia of jurisprudence.8 No provision of the
Constitution, law or precedent was cited to support that there was 'no legal requirement' to
hear the parties. The mandatory requirement of openness and transparency were also
transgressed. Secrecy and one-sided determinations are the harbingers of suspicion and
mistrust, and undermine the trustworthiness and standing of courts.

12. The majority's order/ clarification was followed by yet another; the majority's
Clarification which, like the earlier one of 14 September 2024, was uploaded on the website
of the Supreme Court in similar manner. This was done on Friday, 18 October 2024 at 3.59
pm. This time too the cause list was not issued, parties were not informed, and an
opportunity of hearing was not provided. Where and when the Hon'ble Judges had met also
remains a mystery. The title of the majority's Clarification is baffling, it stated, 'In Chambers
at Islamabad and Karachi', that is, simultaneously in two cities. The majority's judgment (in
paragraph 120) had stated that they were 'parting with the judgment', but almost a month
later (on 18 October 2024) in the majority's Clarification they invalidated their own parting.

13. In my 46 years association with the law, I have not come across such novel methodology
(as mentioned above), nor learnt of such practice being in vogue in any other country
governed by the rule of law. In Chittaranjan Cotton Mills Ltd. v. Staff Union9 this Court had
(over four decades ago) stated the consequences of an improperly constituted court:

'Where the Court is not properly constituted at all the proceedings must be held to be
coram non judice and, therefore, non-existent in the eye of law. There can also be no doubt
that in such circumstances "it would never be too late to admit and give effect to the plea
that the order was a nullity", as was observed by the Privy Council in the case of Chief
Kwame Asante, Tredahone v. Chief Kwame Tawia (9 DLR 686 (PC)).'

The majority's order/clarification and the majority's Clarification cannot be stated to

have been issued by a 'Court'; the forum which issued them was coram non judice.
Moreover, such forum did not comply with the rudimentary principles of natural justice, of
due process and of fair trial. Therefore, with great respect, the same do not constitute legal
orders, and are of no legal effect. They also cannot be categorized as a 'decision' of the
Supreme Court (in terms of Article 189 of the Constitution), resultantly, they need not be
followed or acted upon.

14. Another significant departure from the Constitution by the majority's short order was to
repeatedly refer to minorities therein. Minorities are neither mentioned in Article 51 nor in
Article 106, and instead both provisions state 'non-Muslims'. Muslims and non-Muslims
denote religious status; without reducing either's citizenship rights. To designate non-
Muslims as minorities is suggestive of a reduced citizenship status. Minorities in the context
of the Constitution could be any number of groups, such as, those with disabilities, the
illiterate, racial or ethnic minorities, and may also include religious minorities (a sect within
the same religion or of another religion). Substituting non-Muslims with minorities and
disregarding the placement of these two words in the Constitution is neither linguistically
nor textually correct.

15. The word minorities is used in the Constitution three times; in its Preamble and in the
Principles of Policy.10 Non-Muslims is used fifteen times in the Constitution.11 Everyone who
considers the Constitution, particularly Judges, must adhere to its language and not lift
anything from one place and superimpose it on another provision. An eleven-member
Bench of this Court in Benazir Bhutto v. Federation of Pakistan12 held that:

'In construing constitutional provisions the expression used in one provision cannot be
lifted and superimposed on the other provision which is not only against the canons of
interpretation but also makes the reading of the provisions as a whole discordant.'

16. Articles 51 and 106 of the Constitution were under consideration in the appeals,
however, the majority's short order and the majority's judgment not only disregarded their
texts but effectively amended the Constitution. The Constitution can only be amended in the
manner as stipulated therein (Articles 238 and 239), and judges have no role in amending it.
In Hamza Rasheed Khan v. Election Commission of Pakistan13 six judges of this Court
categorically stated the obvious, which was that no court, including the Supreme Court,
could confer jurisdiction upon itself:14

'12. Any court, including this Court, cannot by a judicial

order confer jurisdiction on itself or any other court, tribunal

or authority. The power to confer jurisdiction is legislative

in character; only the legislature possesses it. No court can create or enlarge its own
jurisdiction or any other court's jurisdiction. Nor any court has any inherent or plenary
jurisdiction.

Because of the constitutional command in Article 175(2) of the Constitution, the courts
in Pakistan do not possess any inherent jurisdiction on the basis of some principles of
common law, equity or good conscience and only have that jurisdiction which is conferred
on them by the Constitution or by or under any law.'

'26. ...conferring the jurisdiction, vesting the right of action, specifying the acts and
providing the procedure would clearly amount to legislating rather than interpreting law.'

17. The majority's short order did not state that an implementation Bench had been
constituted. However, even if it is assumed (for the sake of argument alone) that this is what
the majority had done, even then the majority's order/ clarification and the majority's
Clarification could not be issued by such a purported implementation Bench. In Adnan A.
Khawaja v. State15 a five-member Bench of this Court held, that:

'It goes without saying that an implementation Bench cannot go behind a concluded and
final judgment or revisit the same.'

18. This Court is empowered to call others to account, therefore, it must all the more be
self-accountable, as was expressed by a nine-member Bench of this Court in Liaquat Hussain
v. Federation of Pakistan:16

'It may be seen that independence of Judiciary and its

separation from Executive as mandated by the Constitution does not make its authority
absolute but require its regulation within the four corners of laws, rules and procedure. Its
normal functioning should be transparent and inspire confidence amongst general public. It
is bound to exercise jurisdiction and authority within the prescribed domain so that it
remains self-accountable.'

'...so long as the Parliament acts within the parameters of the Constitution, there is no
restriction or prohibition to legislate on any subjects ... .'

19. Justice Syed Mansoor Ali Shah had disagreed with the then Chief Justice Umar Ata
Bandial and Justice Ijaz ul Ahsan, and had dismissed the constitution petitions challenging
the amendments made to the National Accountability Ordinance, 1999, stating that:

'...the majority judgment through a long winding conjectural path of far-fetched "in turn"
effects has tried hard to "ultimately" reach an apprehended violation of the fundamental
rights. The majority judgment has also fallen short to appreciate that what Parliament has
done, Parliament can undo; the legislative power of the Parliament is never exhausted. If the
Parliament can enact the NAB law, it can also repeal the entire law or amend the same.'

The five-member Bench of this Court in its decision (in the Intra Court Appeals 17 arising
out of the above petitions), agreed with Justice Shah, and also agreed with him that the
courts must not be influenced by politics and should preserve the future of democracy:

'Courts must rise above the 'hooting throng' and keep their eyes set on the future of
democracy, undeterred by the changing politics of today. Courts unlike political parties don't
have to win popular support. Courts are to decide according to the Constitution and the law
even if the public sentiment is against them.'

20. Justice Syed Mansoor Ali Shah (in stating the above) had departed from his earlier
decision in Jurist Foundation v. Federation and Pakistan18 wherein a challenge to the
appointment of General Qamar Javed Bajwa as the Chief of the Army Staff was made. The
Government of the then Prime Minister Mr. Imran Khan, the then Law Minister Mr.
Muhammad Farogh Naseem and the then Attorney-General Mr. Anwar Mansoor Khan
wanted General Bajwa to continue as the Chief of the Army Staff. Mr. Muhammad Farogh
Naseem even resigned from his position of Federal Law Minister to represent General Bajwa
in Court. He was assisted by the learned Mr. Abid Shahid Zuberi. Within two days of the filing
of the petition the petition was decided. The petition was neither allowed nor dismissed;
instead what the respondents19 wanted was given. The Court extended the tenure of
General Bajwa by six months; which constituted legislating, and this is demonstrable from
the judgment authored by Justice Syed Mansoor Ali Shah:

'Continuity of Incumbent COAS for Six Months

48. ...the tenure of a COAS and in the light of the assurance given by the Federal
Government to address these issues through fresh legislation within six months, we ... find it
appropriate to allow the current status of the COAS to continue for a period of six months,
whereafter the new legislation (Act of the Parliament) shall determine his tenure and other
terms of his service.' (p. 44)

The Constitution must never be made subservient to personal ambition, and those who
do so, as well as their abettors and facilitators, should be made to face the consequences of
their actions.

21. These appeals arise out of two civil petitions for leave to appeal20 ('the said CPLAs')
which had assailed the unanimous judgment dated 25 March 2024 of a five-member Bench
of the Peshawar High Court by a political party, the Sunni Ittehad Council, which stated that
the designated independent candidates in the National Assembly, who had joined it within
the prescribed three days, as stipulated in the provisos to sub-clauses (d) and (e) of clause
(1) of Article 51 of the Constitution, were their candidates, therefore, the Sunni Itthehad
Council be given proportional representation from the seats reserved for women and non-
Muslims, and the same be done in respect of the Provincial Assemblies, under sub-clause (c)
of clause (1) of Article 106.

22. The said CPLAs came up for hearing before a three-member Bench21 of this Court on 6
May 2024 when leave to appeal was granted, and on the very same day, the impugned
judgment of the Peshawar High Court and ECP's order dated 1 March 2024 were suspended.
The Court then stated that since the interpretation of the Constitution was required,
therefore, the cases be placed before the Committee constituted under the Supreme Court
(Practice and Procedure) Act, 2023 for the constitution of a larger Bench. The appeals
(emanating from the said CPLAs), however, were ordered to be fixed on 3 June 2024, which
was after almost a month.

23. I as Chief Justice, heading the Committee, proposed that these appeals should not be
heard by those who may be considered to be the beneficiaries or affectees of the
constitutional amendment which was then being discussed; to consider making the office of
the Chief Justice a tenured three year post. The potential beneficiaries/affectees would have
been the Chief Justice and five Judges,22 and they would have been excluded from the
Bench. However, the majority (Justice Syed Mansoor Ali Shah and Justice Munib Akhtar) did
not agree. Therefore, I next proposed that the Full Court should hear these appeals.

24. The issue in these appeals was straightforward, which was to consider certain provisions
of Articles 51 and 106 of the Constitution. However, these provisions were attended to in the
majority's judgment cursorily. The first 58 paragraphs of the majority's judgment are
devoted to a general discourse on elections, political parties, Articles 17 and 19 of the
Constitution, certain provisions of the Elections Act of 2017, the rules made thereunder, the
majority's short order and the majority's order/clarification. Reference was also made to an
application (CMA No. 5913 of 2024, filed on 26 June 2024) on behalf of the PTI and Mr.
Gohar Khan, but neither had signed it; the application was signed by an Advocateon-Record
of this Court. The application states that the applicants 'may kindly be allowed to assist this
August Court as interveners.' The majority's judgment also refers to eight articles, seven
books mentioned fourteen times, fourteen foreign cases and two excerpts from speeches,
but without stating their relevance to our Constitution, the Elections Act and the rules made
thereunder.

25. Pakistan has a written constitution. The language used in the Constitution is easily
understandable. Unlike the constitutions of some countries our Constitution is not centuries
old nor does it use archaic words requiring extrapolating meaning therefrom. The majority's
judgment, with respect, lost sight of the basics. The people of Pakistan are governed by the
Constitution and by the laws enacted by their elected representatives, they do not want to
be told how to govern themselves or made to encounter foreign doctrines, like the one
expounded by the Austrian jurist and philosopher Hans Kelsen which was misapplied by the
Supreme Court, and had caused untold misery to Pakistanis. In a rule based system like ours
the applicable rules have to be applied, irrespective of one's own personal preferences. It is
best not to interpolate one country's constitution with that of another. For instance, our
Constitution requires that those wanting to contest elections must be a minimum twenty-
five years of age, but in the United Kingdom the minimum age is eighteen years, and the
minimum prescribed age for the President of Pakistan is forty years, but in the United States
of America the age is thirty-five years. Just because in the United Kingdom or in the United
State of America the stated age is different does not mean that it is correct or better, let
alone that we should adopt it. We should do what our Constitution states.

26. The applicable provisions of our constitution are clear and self-evident, and it is best not
to look for meaning which does not exist in the Constitution of the Islamic Republic of
Pakistan.

Sd/-

(Qazi Faez Isa)

CJ

MWA/S-34/SC Order accordingly.