HIGH

(JUDICIAL DEPARTMENT)
v
WP No. 6173-P/2023

Pakistan Tehreek-e-l nsaaf (PTl)

Through its authorized person and others.

Petitioners

V/s

Election Commission of Pakistan

Through its Secretary and others

.Respondents.

For the Petitioners: M/s BarristerAli Zalar, Niazullah

Khan Niazi, Sarfaraz Ahmad
Cheema, Barrister Gohar Ali,
Shah Faisal Utmankhel, Qazi
Muhammad Anwar, Ali Zaman,
Arshad Ahmad and Ms. Masha!
Azam Yousafzai, Advocates.

For Respondent No.1: M/s Sikandar Bashir Mohmand,

Barrister lmran Khan and
Hamza Azmat, Mr. Muhsin
Kamran Siddiqui, Advocates
along with Mr. Khurram
Shehzad, Addl: DG Law ECP,
Mr. Aziz Bahadar, JPEC and
Mr. Musadiq Anwar, DD
(Confid).

For Respondents No. 2 & 7: Syed Aziz Uddin Kakakhel,

Advocate.

For Respondent No.8 M/s Tariq Afridi & Ahmad

Farooq Khattak, Advocates.

For Respondent No. 10: Qazi Jawad Ehsanullah,

Advocate.

For Respondent No.12: M/s Jehanzeb Shinwari &

Naveed Akhtar, Advocates.
a
4 For Respondent No.13: Mr. Fida Bahadar, Advocate.

Date of hearing: 09-10.01.2024

Date of Announcement: 10.01.2024

JT,I'GIWDI{:T
SYED ARSHAD ALI. J:- The question before us, in the
present case, is whether the Election Commission of Pakistan
(ECP) has the power and jurisdiction under Article 218 (3),
 2
Anicle 2L9 of the Constitution of Islamic Republic of
Pakistan, 1973 (Constitution) read with sections 208 and Zl5
(5) of the Election Act,2017 (Act) to question, adjudicate and
probe the Intra Party Election of Pakistan Tehreek-e-Insaaf
(PTD which was conducted by the PTI on the directions of
ECP on 2'd Decembe \ 2023 .

2. The instant petition filed by the PTI and 07 others

(office bearers) challenges the order dated 22.12.2023 passed
by ECP whereby the petitioner No.l was declared ineligible to
obtain the election symbol for which it had applied.
3. IWs Barister Ali Zafar & Barrister Gohar Ali, while
opening their arguments, have stated that the effect of the
impugned order is virtually the dissolution of a political party
and denying to it the penumbral rights which action of the
respondent offends the fundamental rights of the petitioners
guaranteed through Article 17 of the Constitution. The learned

counsels, while referring to various provisions of Act have

argued that the ECP has no jurisdiction to probe the Intra Party

Election; dispute and question the validity of election under its

limited jurisdiction. The leamed counsels, while relying upon
the law laid down by the Apex Court in the case of Mrs.
Benazir Bhutto (PLD 1989 SC 66), have argued that the
citizens of Pakistan enjoy the rights not only of forming a
political party but also the constitution ensure the functioning
of a politicat party which, inter alia, includes a right to obtain
a symbol to facilitate the voters to identiff the party candidate.
In absence of a common symbol, the voters of political parties
would be deprived of their choice to elect a political party.

4.- The learned counsels, while referring to the judgment of the

Apex Court in the case of Mrs. Benazir Bhutto (PLD 1988 SC
416) have contended that any step taken by any govemment
functionary, which has the effect of disenfranchising of a
potitical party in any manner would offend Article l7Q) of the
Constitution. The learned counsels have next argued that the
ECP does not dispute that the PTI had conducted the Intra
 3
Parfy Election but their only objection was that the said
v election was supervised by incompetent persons (Election
Commission), therefore, even under the defective doctrine
rule, the said election is to be protected in view of the law laid
down by the Apex Court in the case of Malik Asad (PLD 1989
SC 497) and (PLD 2009 SC 879). The learned counsels have
also maintained that the petitioners' political party has been
singled out by not accepting its Infa Party Election whereas
no action was taken against other political parties despite
having not conducted any Intra Party Election. Therefore, the
impugned action of the ECP hit at the core of Article 25 of the

Constitution. On factual premises, the learned counsels have

maintained that when through an order dated 23.11,.2023 the
petitioners' political pafiy was asked to conduct Intra Party
Election within twenty (20) days, in compliance thereof they
had conducted the Intra Paffy Election, produced all the

required documents establishing the holding of Intra Party

Election but the respondent-EcP with malafide has undertaken
a process questioning the validity of Intra Party Election
conducted by the petitioners' political party; refusing to
upload the required certificate under section 209 of the Act on
its official website and has passed the impugned order
purportedly under Section 215 of the Act which is in complete
disregard of the law. The leamed counsels have further
maintained that ECP is not a Court therefore, has no
jurisdiction to undertake any process questioning the validity
of lntra Parry Election even on the complaint of an alleged
aggrieved person.

7<', 4. Mr. Sikandar Bashir Mohmand, Advocate, the learned

counsel representing the respondent-ECP has argued that ECP
not only regulate the conduct of general elections, election to
senate and local bodies but is also a regulator of political
parties and it derive its authority from Articles 218(3) and?I9
of the Constitution, besides, the Election Act,20L7 in terms of
Article 219 (E) of the constitution. He has laid much
 4
emphasis on the various provisions in chapter-Xl of the Act
by arguing that it is the requirement of law that each party
shall have a written Constitution registered with the ECp
which should, inter alia, includes the procedure for conducting
Intra Party Election. The ECP has the jurisdiction to satisfu
and ensure that the Intra Party Election by a political party has

been conducted in accordance with its Constitution enabling

the workers/members of each political party due participation
in the election process. The learned counsel has also referred
to the show cause notices issued to the petitioners' political
party reminding its legal obligation to conduct the Intra Party

Election. The learned counsel has referred to a similar

proceedings which were initiated on behalf of the petitioners'
political party before the worthy Lahore High Court through
constitutional petition No. 28712024 which was dismissed.
Against the said order by a single bench, the petitioners have
filed lntra Court Appeal which has yet to be decided by the
worthy Latrore High Court, therefore, under the rule of
proprietary the petition should not have been filed before this
Court. In support of the said arguments, the learned counsel
has relied upon the law laid down by the Apex Court in the
case of Salahuddin Tirmizi (PLD 2008 SC 735). Regarding the
jurisdiction of the ECP to hold an inquiry in the internal affairs
of a political party, the learned counsel, while relying upon
para-45 of the judgment of the Apex Court in the case of
Muhammad Hanif Abbasi (PLD 2018 SC 189), has argued that
the jurisdiction to collect fact while exercising *y power

under the Election Act or Rules, the ECP has inherent power
to collect evidence in order to form an opinion regarding the
- validity and procedure adherence of intra par:ty election. To
5,4' fuither bolster the said arguments, the learned counsel has also
referred to Suo Moto case No. 07 of 2017 reported as PLD
2019 SC 318.

5. The learned counsel has also objected the constitutional

jurisdiction of this Court on the ground that ECP is a
 5
constitutional body which is absolutely independent with
exclusive jurisdiction while performing its obligations and
duties under the Act and any order of the ECp is, thus, not
amenable to the judicial review of a constitutional court unless

patent illegality is evident from record and in the present case,

since the ECP has acted in accordance with the mandate

provided by sections 208, 209 and 215 of the Act, therefore,
the impugned decision is not subject to judicial review of this
Court. In support of his arguments, the learned counsel has
placed reliance on the case of Sheikh Rashid Ahmad (PLD
2010 SC 573) and Miss Naheed Khan (2019 CLC 935).

However, much emphasis was laid by the learned counsel

representing the respondent/ECP on the law expounded by the
worthy Islamabad High Court in the case of Dr. Farooq Sattar
(PLD 2018 Islamabad 300) wherein the jurisdiction of ECP to
interfere and question the validity of Intra Party Election was
approved by the worthy Islamabad High Court keeping in
view the law laid down by the Apex Court in the case of
Muhammad Hanif Abbasi.
6. IWs Qazi Jawad Ehsanullah, Muhammad Tariq Afridi,
Naveed Akhtar & Ahmad Farooq Khattak, Advocates, the
leamed counsels representing the respondents have mainly
attacked on the territorial jurisdiction of this court and argued
that the principal office of ECP is located at Islamabad and the
impugned order was passed by ECP in Islamabad, therefore,
this Court has no jurisdiction to entertain this petition. In
support of their arguments, the learned counsels have relied
upon the law laid down by the Apex Court in the cases 1979
SCMR 555, PLD 2OI2 SC 68T, PLD 2OIO SC 5J7, 1999
')
SCMR 1921, PLD 2018 SCM 189 and AIR 1967 SC 898.
< .
7. In rebuttal, Barrister Ali Zafar, while relying upon the
law laid down by the Apex Court in PLD 1968 SC 387, 2009
CLD 1498, 2012 PTD 1869 and 2017 SCMR I179, has argued
that since the Intra Party Election was conducted in the
Province of Khyber Pak*rtunkhwa, the offices bearer of the
 6
PTI belong to Province of Khyber Pakhtunkhwa, therefore, the
impugned order has effects in the province of Khyber
Pakhtunkhwa, therefore, this court has the territorial
jurisdiction in the matter.
Facts of the Case
8. It is averred in the petition that Pakistan Tehreek-e-
Insaaf ("PTI") being a political party of Pakistan is registered
with the Election Commission of Pakistan ((ECP,) and Mr.
Imran Khan Niazi has been its Chairman. The symbol of .Bat,
was allocated to PTI since its very inception and was its
symbol even in 2002, 2013 & 2018 general elections. It is
further averred that as per letter dated 24.08.2021 of ECP, the
intra party elections of PTI were held under its constitution
(2019) as amended in June, 2022 notiffing the office bearers
including Chairman, Vice Chairman and Secretary General as

well as Provincial Presidents and General Secretaries on

10.06.2022 and forwarded the same to ECP on the same day.
The election was widely reported in print electronic media not
only in Pakistan but even internationally. The matter of intra
party election of PTI was placed before the ECP for hearing
on 28.03.2023 and finally the ECP vide order dated
23.11.2023 declared that the petitioner had failed to hold intra
party elections in accordance with its constitution and thereby
directed the petitioner to hold intra party election in
accordance with its constitution within twenty (20) days
positively and also resubmit its result along with all required
documents including Form-65 within seven days.
Accordingly, the intra party election of PTI was held on
n 02.12.2023 and the parfy's Chairman submitted Form-65 in

=7i', accordance with section 209 of the Election Act, 2017 along
with all relevant documents to ECP on 04.12.2023. In the

meanwhile, respondents No. 2 to 15, who are not members of

PTI, filed applications before the ECP for declaring the intra
pany election of PTI as void. The ECP vide impugned order
 7
dated 22.12.2023 declared the petitioner ineligible to retain the

election symbol 'Bat'; hence, the instant writ petition.

Imnusned Order dated 22.12.2023
9, The crux of finding of ECP in the impugned judgment
are that no record was placed before the ECP that any
competent authority has ever appointed Federal Election
commission in accordance with the provision of Article IX of
PTI Constitution of 2019. A single Federal Election
Commission is not the requirement of constitution of PTI and
such a solitary office bearer could not exercise any power to
hold PTI Intra Party Election till the Commission as a whole is
appointed by a competent authority provided under the
constitution. According to the record, Secretary General of
PTI was Mr. Asad Umar whereas the Election Commission
was appointed by Mr. Umar Ayub purportedly acting as

Secretary General of PTI, who was never validly appointed as

the Secretary General of PTI.

10. The petitioners have questioned the impugned order on
legal as well as factual premise. However, we are mindful of
our jurisdictional contours that the factual finding of ECP
regarding the conduct of election cannot be substituted by this
Court. Therefore, if it is found that the ECP had the
jurisdiction in the matter then in such circumstances this Court
has no mandate to interfere in the said findings. Air Marshal
(Retd) Muhammad Asshar Khan v. General (Retd) Mirza
Aslam Baie. former Chief of Army Staff and others (PLD
2013 SC 1), Dr. M.A Haseeb Khan and others vs. Sikandar
Shaheen and 9 others (PLD 1980 SC 139), Ghulam
Muhammad and another vs. Mst. Noor Bibi and 5 others
5{-
(1980 SCMR 933), Younis Khan and 12
-Muhammad
others vs. Government of N.W.F.P. through Secretary,
Forest and Agriculture, Peshawar and others $993
SCMR 618). Shah Wali and others vs. Ferozuddin and
others O00 718) & Collector of Customs and
others vs. Messrs Fatima Enterprises Ltd and others
 8
(2012 scMR 41o. Therefore, we will confine ourselves to
the adjudication of the following two questions arising out of
respective contention of the parties.
i. Territorial jurisdtction of this Court and
maintainability of the petitton to question the
order of a constitutional body.

ii Whether the ECP has any jurtsdiction to

question, probe and adjudicate the Intra Party
Election of PTI.

Jurisdiction of this Court and maintainabilitv of this

petition.

I 1. The law is by now settled that the Election Commission

is a constitutional and independent body having mandate to
conduct free and fair election and it derives its authority from
the constitution itself therefore, if any order is passed by the
ECP within the four-corner of law i.e. Constitution and the
Election Act then the Constitutional Court would be very slow
in interfering the working of Election Commission unless it is
established that the jurisdiction exercised by the ECP is
manifestly illegal, arbitrary or malafide. Malik Ameer Haider
Sansa vs. Mrs. Sumera Malik and others (2018 SCMR
1166).
12. Moving on to the territorial jurisdiction of this Court. In
order to elaborately answer this issue, we would like to refer
to the jurisprudence regarding the territorial jurisdiction
developed by superior courts of Pakistan through various
judgments.

Asshar Hussain vs. the Election Commission of

Pakistan OLD 1968 SC 381. In this case, the High Court of
,7
East Pakistan was moved for quashment of an order of
4 Tribunal/Election Commission relating to a dispute to a
Provincial Constituency of a East Pakistan. The High Court of
East Pakistan had dismissed the petition on the ground of lack

of territorial jurisdiction. The Apex Court allowed the appeal

against the judgment of the High Court of East Pakistan where

it was held "the decision given by the High Court of East

 9
Pakistan that it has no jurisdictton to issue a writ or a
dtrection to the election commisston of pakistan zs thus
unreasonable tn law from every point of view. The election
Commission is "a person" or "authority" which exercises in
the Province of East Pahistan functions tn connection with
their affairs of the centre namely, election to the ffice of
President, National Assembly and the Provincial Assemblies
and for holding a Referendum as provided for in the
Constitution. In that, the Commission r's subject to the
jurisdiction of High Court under Article 98 (2) (a) (t)
notwithstanding that its main ffice and secretariat are
located in the Province of West Pakistan".
The Federal Government vs. Avan Ali and others
(2017 SCMR ll7g).In the present case, the issue related to
the jurisdiction of Sindh High Court to have entertained a
constitutional petition filed by Ms. Ayan Ali against a
notification issued by the Federal Government on the
recorlmendation of Government of Punjab. In the said case,
Ayan Ali at one point of time had approached the Lahore High
Court wherein directions were issued to the Federal
Government to decide the said representation and
subsequently when she had to depart from Karachi; through a
notification her n€Lme was placed in ECL. The Apex Court in
the said judgment while rejecting the arguments of the Federal
Government relating to the territorial jurisdiction of Sindh
High Court and while relying upon the LPG'r case has held
"as regard the question of teruitorial jurisdictton, it hardly
need emphasis that the impugned notification/memorandum

</ has been tssued by the Federal Government which functions

all over the country and since the respondent No.l resides in
the Karachi and has a right and choice to proceed abroad
through Jinnah International Airport Karachi and in fact at
least twice earlier she had proceeded to go abroad through
Jinnah International Airport Karachi, though she was stopped
owing to the earlier noti/ication/memorandum and therefore,
 10
the embargo placed on her leaing the country has in
fact
talren place at Karachi, which prevention in all likelthood was

to be repeated at Karachi in pursuance of the third

notffication/memorandum and thus gtving rise to a cause of
action against a third notification/memorandum at Karachi
because of its taking ffict there. It is now well settled that the
Federal Government, though may have exclusive residence or
location at Islamabad would still be deemed function all over
the country".

Messrs Al-Iblash Limited . Lahore vs. The

Convrieht Board Karachi and others (1985 SCMR 758).
Regarding the territorial jurisdiction in the matter, it was
observed that:
"The Central Government has set up a Copyright
Board for the whole of Pakistan and it performs
functions in relation to the affairs of the Federation
in all the Provinces. Hence, any order passed by it
or proceedings taken by it in relation to any person
in any of the four Provinces of Pakiston would give
the High Court of the Province, in whose teritory
the order would ffict such a person, jurisdiction to
hear the case.

It was further observed that:-

"lVb agree and are of the opinion that both the

Lahore High Court as well as the Sindh High Court
had concurrent jurisdiction in the matter and both
the Courts could have entertained a Writ Petition
against the impugned orders in the circumstances of
this case. We, therefore, hold that the Lahore High
Court has illegally refused to exercise jurisdiction
in this case. The case will, therefore, go back to the
Lahore High Court for the decision of the Writ

<
a
Petition filed by the appellant before it for decision
on rnerits, in accordance with lqw".

LPG Association of Pakistan throush Chairman vs.

Federal of Pakistan throush Secretary Ministrv of
Petroleum and Natural Resources. Islamabad and others
(2009 CLD 1498). In this case, the territorial jurisdiction of
Lahore High Court was questioned on the ground that all the
respondents (except a proforma respondents) functioned at

Islamabad; impugned notice was issued by the Commission

from Islamabad. The Lahore High Court while rejecting the
 11
said objection has laid the following principles on the point of
\J territorial j urisdiction/concurrent j uri sdiction of High courts.
6. From the judgments cited at the Bar on both the
sides, the portions whereof have been extensively
reproduced, the following ratio is deductble:-

(A) The Federal Government or any body politic or a

corporation or a statutory authority having
exclusive residence or location at Islamabad with no
ffice at any other place in any of the Provinces,
shall still be deemed tofunction all over the country.
(B) If such government, body or authority passes any
order or initiates an action at Islamabad, but it
affects the "aggrieved party" at the place other than
the Federal capital, such party shall have a cause of
action to agitate about his grievance within the
terrttorial jurisdictton of the High Court in which
said order/action has affected him.
(C) This shall be moreso in the cases where a party is
aggrieved or a legislative instrwnent (including any
rules, etc) on the ground of it being ultra vires,
because the cause to sue against that law shall
accrue to a person at the place where his rights
have been affected. For example, if
a law is
challenged on the ground that it is conJiscatory in
nature, violative of the fundarnental rights to
property; profession, association etc, and any curb
has been placed upon such a rtght by a low enforced
at Islamabad, besides there, it can also be
challenged within the jurisdiction of the High Court,
where the right is likely to be affected:
In this context, illustrations can be gtven, that if
sotne duty/tax has been imposed upon the
withdrawal of the amounts by the account holders
from their bank account and the aggrieved party is
maintaining the account at Lahore, though the
Act/law has been passed at Islamabad, yet his right
being affected where he maintains the account
(Lahore), he also con competently inttiate a writ
petition in Lahore besides Islamabad; this shall also
be true for the violation of any right to profession, if
being conducted by a person at Lahore, obviously in

< the situation, he shall have a right to seek the

enforcernent of his right in any of the two High
Courts.
(D) On account of the above, both the Islamabad and
Lahore High Courts shall have the concuruent
jurisdiction in certain matters and it shall not be
legally sound or valid to hold that as the Federal
Government etc. resides in Islamabad, and operates
from there; the assailed order/action has also
emanated from Islamabad, therefore, it is only the
Capital High Court which shall possess the
jurisdiction. The dorninant purpose in such ct
situation shall be irrelevant, rather on account of
the rule of choice, the plaintiff/petitioner shall have
the right to choose the forum ofhis convenience".
 12
13. The survey of the aforesaid cases-law led us to conclude
that if any authority which is established either under the
constitution or any Federal Law which performs function in
connection with the affairs of Federation or such other
constitutional functions which has any nexus with any
Province, no matter where the Principal Secretariat of the
Authority is situated, if it passes any order or undertake any
proceedings in relation to any person or group of person who
are residing in a Province or the cause of action has emanated

from the province leading to the decision by the constitutional

forum or other authority like ECP, then the High Court of the
Province in whose territory the order would affect the person
would be competent to exercise jurisdiction in the matter. In
the present case, admittedly, the impugned election had taken
place in the province of Khyber PakhtunlJrwa and the Election

Commission of Pakistan for that purpose resides in the

Province of Khyber Pakhtunkhwa, therefore, in our humble
view this Court as well as the Islamabad High Court have
concurrent jurisdiction in the matter.

14. Moving on further to the arguments of Mr. Sikandar

Bashir Mohmand, Advocate the learned counsel representing
the Election Commission wherein he has raised an objection
that a similar petition baring No. 28712024 titled "Chaudhry
Muhommod Aftab Dillo and another ys. Election
Commission of Pakislon" was filed before the Lahore High
Court which was dismissed by the Lahore High Court on
03.01 .2024 therefore, the second petition on the same cause of
action before this Court is not maintainable. It was further
maintained that the judgment of Lahore High Court has been
<{.' challenged through an Intra Court Appeal which is still
pending before the Lahore High Court which shall be heard by
a Larger Bench constituted in this regard. In this regard, in
order to keep the record straight, prior to the impugned
decision by the Election Commission of Pakistan a

constitutional petition bearing No.5791-P12023 was filed

 13
before this court whereby the petitioner had asked for the
similar relief, The said petition was disposed of by this court
vide judgment dated 31.12.2023 whereby directions were
issued to the Election commission of pakistan to decide the
pending matter by 22"d Decembe\ Z0Z3 positively. When the
Election commission of Pakistan had passed the impugned
order on22.12.2023, the said order was challenged before this
Court through the instant constitutional petition on
26.12.2023. Similarly, two other persons Umar Aftab Dillo
and others had filed a petition bearing No. ZB7|Z0Z4
challenging the same order before the Lahore High Court. The
main ground which prevailed before the Lahore High Court
for dismissing the petition was that since PTI had already filed
a similar petition before this Court, therefore it was a matter of
proprietary that the case should be decided by this Court. The
learned counsel in this regard has referred to the judgment of
Salahuddin Tirmizi (PLD 2008 SC 735) and has argued that
once the matter is raised before one High Court having
concurrent jurisdiction then subsequently in the same series of
cause of action as a matter of proprietary the same High Court

should be approached. However, with pnofound respect the

law laid down by the Apex court in the case Salahuddin

Tirmizi case is not applicable in the present case because the

first constitutional petition was filed before this Court bearing
No. 5791-P12023 wherein direction was issued to ttre ECP for
passing a final order and when the final order was passed it
was challenged before this Court by the present petitioner on
26.12.2023 whereas the same order was also challenged
<<- before the Lahore High Court by different persons subsequent
to the filing of this petition. The Lahore High Court has not
decided the case on merit rather dismissed the same in limine
owing to the pendency of petition before this Court. Hence,
neither the principle of resjudicata is attracted nor under the
doctrine of proprietary this petition is not maintainable.
 L4
In view of the aforesaid discussion, the objection to the
maintainability of the petition and territorial jurisdiction of
this Court is ovemrled.
scope of the power of ECP under Article 218(3). 219 (E) of
the constitution and Section 215(5) of the Erection Act.
2017

15. Before embarking upon the jurisdiction of ECp in the

matter, we deem it appropriate to reproduce the relevant
provisions of constitution as well as Election Act, 2017 for
ease ofreference.

Constitution of Islamic Republic of Pakistan.

r973

Q)
(3) It shall be the duty of the Election Commission to
organize and conduct the election and to make such
arrangements as are necessary to ensure that the election
is conducted honestly, justly, fatrly and in accordance
with law, and that corrupt practices are guarded against.
219...
(e) such other functions as may be speci/ied by an Act
of Maj I i s - e - Sho or a (P arl i ame nt).

Election Act.2017
201. Constitution of political parties. - (1) A political
party shall formulate its constitution, by whatever name
called, which shall include-
(a) the aims and objectives of the politica,l party;
(b) organizational structure of the political party at
the Federal, Provincial and local levels, whichever is
applicable;
@ membership fee to be paid by the members where
applicable;
(d) designation and tenure of the ofice-bearers of the
political party;
(e) criteria for receipt and collection of funds for the
political party; and
(/) procedurefor-
(i) election of ffice-bearers;
>4 (it) powers and functions of ffice-bearers including
fi nancial de cis ion-makin g ;
(iii) selection or nomination of party candidates for
election to public ffices and legtslative bodies;
(iv) resolution of disputes between mernbers and
political partl, including issues relating to suspension
and expulsion of members; and
(v) method and rnanner of amendments in the
constitution of the political party.

(2) Every political party shall provide a printed copy

of its constttution to the Commission.
 15
(3) Any change in the constitution of a potiticat party
shall be communicated to the Commission within /irtein
days of incorporation of the change and the Comrnission
shall maintain updated record of the constitutions of all
the political parties.

208. Election within a political party. - (l)The ffice-

bearers of a polttical party at the Federal, provincial and
local levels, wherever applicable shatt be elected
periodically in accordance with the constitution of the
political party.
Provided that a period, not exceedingfive years,
shall interyene between any two elections.
(2) A member of a political party shall subject to the
provistons of the constitution of the political party be
provided with an equal opportunity of contesting election
for any political party office.
@ All members of the political party at the Federal,
Provincial and local levels shall constitute the electoral-
college for electton of the party general council at the
respective levels.
(4) Thepolitical party shall publish the updated list of
its central ffice-bearers and Executive Committee
members by whatever natne called, on its website and
send the list, and any subsequent change in it, to the
Commission.
(5) Where a political partyfails to conduct intra party
elections as per gtven time frame in their constitution, a
show cause notice shall be issued to such polittcal party
and if the partyfails to complywith, then the Cornmission
shall impose fine which may extend to two hundred
thousand rupees but shall not be less than one hundred
thousand rupees.

209. Certification by the polSitical pa@. Q) A political

party shall within seven days from completion of the intra
party elections, submit a certi/icate signed by an ffice-
bearer authorized by the Party Head, to the Commission
to the effict that the elections were held in accordance
with the constitution of the political party and this Act to
elect the ffice-bearers at the Federal, Provincial and
local levels, wherever opplicable.
(2) The certificate under sub-section (1) shall contain
the fo I I ow ing informati on-
(a) the date of the last intraparty elections;
(b) the names, designations and oddresses of office-
bearers elected at the Federal, Provinctal and local
levels, wherev er applicable ;
^
(c) the electionresults; and
(d) copy of the political party's nottfications declaring
the results of the election.
(3) The Cornmission shall, within seven days from the
receipt of the certi/icate of a political party under sub-
section (1), publish the certificate on its website.

215. Eligibility of party to obtain election symbol. -(1)

Notwithstanding anything contained in any other low, a
political party enlisted under this Act shall be eligible to
obtain an election symbol for contesting electtons for
Majlts-e-Shoora (Parliament), Provincial Assemblies or
 L6
local government on submission of certiJicates and
stqtements refeted to in section 202, i06, 20i and 210.
v (2) A combination of enlisted political parties shall be
entitled to obtoin one election symbol for an election onl
if each party constituting such combination submits the
certificates and statements referred to in sections 202,
206, 209 and 210.
(3) An election symbol already allocated to a political
party shall not be allocated to any other political party or
combination of polttical parties.
(4) Were a political party or combination of political
parties, severally or collectively fails to comply with the
provision of section 209 or sectton 210, the Comrnission
shall issue to such politicol party or parties a notice to
show cause as to why it or they may not be declared
ineligible to obtain election symbol.
(5) If a polittcal party or parties to whom show cause
notice has been issued under sub-section (4) fails to
comply with the provision of sectton 209 or section 210,
it
the Commission may afier affording or them an
opportunity of being heard, declare it or thern ineligible
to obtain an election synbol for election to Majlis-e-
Shoora (Parliament), Provincial Assembly or a local
government, and the Cornmission shall not allocate an
election symbol to such political party or combination of
political parties in subsequent elections.

16. Admittedly, ECP is not a Court or a Tribunal

(Muhammad Hanif Abbasi's case PLD 2018 SC 189).

However, Article 218(3) of the Constitution entrusts the

Election Commission with the duty "to organize and conduct
the election", and empowers it, in general terms, "to make
such arrangements as are necessary to ensure that the election

is conducted honestly, justly, fairly and in accordance wittr

law, and that comrpt practices are guarded against". The
power so conferred is restricted to the fulfilment of the duly
specified, that is, "to organize and conduct the election".
Therefore, in order to understand the amplitude of this power,
we need to find out the meaning of the term'oelection" as used
in Article 218(3) and to ascertain when the duff of the

Election Commission to o'conduct the election", as entrusted to

it under this Article, starts and when it stands completed.
Secondly, it also requires determination whether the duty of
the Election Commission to conduct the election and the
power to make the necessary arrangements therefor can be
regulated by a law enacted by the Parliament; if so, what
 L7
would be the status of the general power of the Election
commission under Article 218(3) of the constitution vis-d-vis
suchlu*. Zulfiq". Ali Bhutti o.. El..tioo co--ision of
Pakistan (Civil Appeat No. l4Z of 20lg decided on
02.11.2022).
17. ln Zulfiqar Ali Bhatti's case, the Apex Court has further
explained the general powers of the Election commission in
para-l4 of the said judgment, which reads as under:-
"14. So.far as the general power of the Election
Commission under Article 218(3) is concerned, the
expression "and in accordance with law" used in
that very Article clearly suggests that it is to be
exercised to ensure that the election is conducted
in accordance with the law enacted by the
Parliament, and not in suppression thereof, The
Election Commission, thus, cannot exercise its
general power in a manner that would make the
conduct of election otherwise than in accordance
with the law enacted by the Parliament, that is, in
violation or breach of such law. Therefore, a lav,
enacted by the Parliament that regulates the
conduct of elections and consequentially the
constitutional duty and power of the Election
Commission to conduct the election, ts not hit by
the provisions of the latter part of Arttcle 222 of
the Constitution; as the requirement for the
Election Commission to conduct the election "in
accordance with law" while perforrntng its
constitutional duty has been prescribed by the
Constttution itself not by a law enacted by the
Parltament".

18. In order to sum up the aforesaid discussion, it is trite

law that the Election Commission of Pakistan despite being a
constitutional body has the jurisdiction to exercise its powers
either under the Constitution or the Election Act, 2017. Its
general power under Article 218(3) of the Constitution cannot

be abridged by any legislative instrument/act of parliament,

however, its other functions arising out of Election Act must
be exercised with the expressed authority of the Election Act.
l)
Indeed, it is settled law that a'Jurisdictional fact" is a fact
which must exist before a Court, Tribunal or an Authority
assumes jurisdiction over a particular matter. A jurisdictional
fact is one on existence or non-existence of which depends
jurisdiction of a court, a tribunal or an authority. It is the fact
 18
upon which an administrative agency's power to act depends.
v If the jurisdictional fact does not exist, the court, authority or

officer cannot act. If a court or authority wrongly assumes the

existence of such fact, the order can be questioned by a writ of
certiorari. The underlying principle is that by erroneously
assuming existence of such jurisdictional fact, no authority can

confer upon itself jurisdiction which is otherwise does not

possess". Existence of 'Jurisdictional fact" is sine qua non for

the exercise of power. If the jurisdictional fact exists, the

authority can proceed with the case and take an appropriate
decision in accordance with law. Once the authority has
jurisdiction in the matter on existence of Jurisdictional fact' it
can decide the 'fact in issue' or 'adjudicatory fact'. A wrong
decision on 'fact in issue' or on 'adjudicatory fact' would not
make the decision of the authority without jurisdiction in
vulnerable provided essential or fundamental fact as to
existence ofjurisdiction is present".

vs. Emplovees State Insurance Corporation (Appeal No.

477412006.\

19. Having discussed the general jurisdiction of the ECP

and referred to the relevant provision of the Election Act,
2017, we now proceed to the moot question whether the ECP
has any jurisdiction to question, probe and adjudicate the Intra

Party Election dispute or procedural in proprietary in the

election process of a political party. It is envisaged by Section
208 of the Election Act, 2017 that the office bearer of a

political party at the Federal, Provincial and local levels,

wherever applicable, shall be elected periodically in
accordance with the Constitution of Political Party. The said
.- Intra Parly Election must be conducted at least within five
4 years and where a political parly fails to conduct Intra party
election as per given time frame in the Constitution it is liable
to pay a fine which may extend to 20000 rupees. The verbiage
of section 208 does not authorize the ECP either to supervise
the Intra Party Election or entertain any complaint regarding
 L9
any irregularity in the said election. However, it is the
command of the Section 209 of the Election Act, 2or7 that a
political party shall within seven days from completion of
Intra Party Election submits a certificate signed by office
bearer authorized by the Party Head to the ECp to the effect
that the elections were held in accordance with the constitution
of political party and the Act. The said certificate should, inter
alia, include a date of last Intra Party Election, the names
designation addresses of office bearers, the election result and
the copy of political, party notification declaring the result of
the election. On submission of the aforesaid documents it is
the statutory duty of Commission to publish the said certificate
on its website within seven days. Section 209 of the Election
Act, 2017 does not confer any jurisdiction on the ECP to
question the Intra Party Election process.

20. Allocation of symbol to a political party is governed

under chapter-Xll of the Election Act, 2017 . A political party
who has complied with the provisions of section 202,206,209
& 210 becomes eligible for an election symbol for contesting
election for Parliament, Provincial Assembly or Local
Govemment. The penal clause i.e subsection (5) of section
215 envisaging for ineligibility to obtain an election symbol
can be invoked only when a political party despite a show
cause notice has failed to comply with provision of sections
209 or 210 of the Election Act, 201,7. Section 209 only deals
with the submission of documents and in no manner authorises
the ECP to question or adjudicate upon the validrty of Intra
Party Election. Indeed, it is settled law that a regulatory and

n penal provision in any law should be construed strictly. Penal

4 statutes tendering to deprive valuable rights of franchise

should be strictly construed and in case of doubt, benefit must
go to the person against whom, it sought to be invoked. (pLD
1984 Lahore 502) (PLJ 1984 Lahore 575). Disqualiffing
provisions in an act dealing with Municipal Election are penal
provisions and therefore, ought not to be extended beyond
 20
their legitimate limit; but at the same time if there is any
doubt, the court should be careful to see that the intention of
the legislature in enacting the section is duly observed. (AIR
1931 Cal 288) (Understanding Statutes by S.M. Zafar page-
270). The combined reading of section z0B,2og and zr5 does
not give any impression that the ECP has any jurisdiction to
question or adjudicate the Intra Party Election of a political
party. The perusal of the entire Election Act would clearly
show that the ECP has no jurisdiction to conduct a rowing
inquiry in any matter rather its jurisdiction is summary in
nature . In the case of Sardar Bahadar Khan Bangulzai (tggg
SCMR 1921), the Apex Court while dealing with a matter
regarding the assumption ofjurisdiction by the Chief Election

Commission on a reference by Head of the Paffy has very

meticulously observed that the inbuilt organizational structural
dispute of a political party cannot be resolved by Election
Commission in its limited jurisdiction. The relevant para of
the judgment reads as under:-

19. We are inclined to hold that if a plea is raised

before the Chtef Election Commissioner that the
person who had made reference on account of
alleged defectton is not the head of the political
party involved, the Chief Election Commissioner is
obliged to examtne the bona fides of such a plea. If
the person who has made the reference as the Head
of the political party tnvolved has been acting as
such in the past, the Chief Election Commissioner is
supposed to proceed on the assumption that he is
the Head of the political party involved. However,
in case he Jinds that there is no reliable material
before him to conclude that factually the person
who has made the reference is the head of the
political party involved and that the above question
relates to inbutlt organizational structural disputes
of the political party involved, in that event he may
4 ask the parties to get the above question resolved
through a civil proceeding.
{
21. The outcome of the aforesaid discussion is that the
impugned action of the ECP denying election symbol to ttre
petitioners has the effect of depriving the petitioners and its
members to freely participate in the affairs and governance of
Pakistan through political activities as guaranteed through
 2L
Article 17 (2) of the constitution. Indeed, the constitution of
1973 has ensured that every citizen in the pakistan has the
right to form or to be a member of political party subject to
any reasonable restriction imposed by law in the interest of
sovereignty or integrity of Pakistan. what could be the
reasonableness of the restriction has been aptly discussed by
IVIr. A.K Brohi in his famous Book (Fundamental Law of
Pakistan) and has formulated the following principles of the
law of association:-
"First: the rights of individuals to associate must be
protected from unlawful governmental infringement,
Second: Govemment may promote the opportunities
of individuals to associate by appropriate means, and
may grant appropriate privileges and powers to
associations when the public interest will be fostered
by doing so,
Third: Government may when the public interest
requires it forbid private persons to interfere with the
rights of individuals to associate and may even
require private persons to enter into legal relations
with associations,
Fourth: An association must not without ad4equate
reason infringe upon the rights of other persons; and
government must define the interests entitled to legal
protection of these other individual and groups,
whether they are members or non-members of the
association,
Fifth: Government may prevent the use of the rights
of association to do serious injury to society as a
whole or to be organized political institution of the
society. (12)".

22. in the case of &had

Similarly, the Apex Court
Mehmood and others vs. Government of Puniab and
others (PLD 2005 SC 193) has laid down the following
standards of ascertainment of reasonable restrictions:-
i. The limitation imposed upon a person in enjoyment
ofa right should not be arbitrary or ofan excessive
nature beyond what is required tn the interest of the

4
public. Messrs Dwarka Prasad v. State of U.P. (AIR
1954 SC 224), P.P. Enterprises v. Union of India
(ArR te82 SC 1016).
ii. The Court would see both to the nature of the
restriction and procedure prescribed by the statute
for enforcing the restriction on the individual
freedom. Not only substantive but procedural
provisions of statute also enter into the verdict of its
reasonableness Kishan Chan v. Commissioner of
Police (AIR 1961 SC 705).
iii. The principles of natural justice are an element in
considering reasonableness of a restriction but the
 22
elaborate rules of natural justice mry be excluded
expressly or by necessary irnplication where
procedural provisions are made in the statute.
Haradhan Saha v. State of W.B. (1975 3 SCC 1981.
iv. Absence of provisionfor review makes the provisions
unreasonable. K.T. Moopil Nair v. State of Kerala
(ArR 196r SC ss2).
v. Retrospectivity of a law may also be the relevant
factor of law, although a retrospectivity of law does
not makc it automatically unreasonable.
Narottamdas v. State of Maddhya Pradesh and
others (AIR 1964 SC 1667).
vi. Reasonable restriction also includes cases of total
prohibition of a particular trade or business which
deprive a person of his fundamental right under
certain circurnstances. Nartndra Ktmar v. Union of
India (AIR 1960 SC 430).

Therefore, af,iy restriction on the political par$ through

any legislative instrument or executive order can be subject to
judicial review by the Constitutional Courts on the touchstone
of Article 17 of the Constitution.
In the case of "Muhammad Nawaz Sharif v.

Federation of Pakistan (PLD 1993 SC 473), the Apex Court

while dilating upon the right of political parties to participate
in election being the fundamental rights of citizens of Pakistan
has held:
"Indeed, even earlier this Court had obsertted in
Maudoodi's case PLD 1964 SC 673 thatforning of
associations necessarily implies carrying on the
activities of an association for the mere forming of
associatton would be of no avail. (see page 764 of
the Report". It was also obserted in the same case
that the ordinary conception of a political party
includes a right within the frame work of the
Constitution to exert itself through its following and
Organization, end using all avaialb3e channels of
tnass cotwnunication, to progate its view in relation
to the whole cornplex of the administrative machine,
including the Legislatures, in respect of matters
which appear tu rt tu require attentton for the
arnelioration of conditions generally through the

z
€'
nation, for improvements particularly in
administrative procedures and policies as well as in
the legislative filed, even to the extent of proposing
and pressing for amendment of the Constitution
itself (see page 692 of the Report)".

Similarlv. in the case of Miss Benazir Bhutto v.

J'

Federation of Pakistan and another (PLD 1988 SC 416). It

was herein, inter alia, also observed:-
 23
"Reading Article 17(2) of the Constitution os a
whole it not only guarantees the right to form or be
a member of a political party but also to operate as
political party......Agoin, the forming of a political
par| necessarily implies the right of carrying on of
all its activities as otherwise the formation itsetf
would be of no consequence. It other words, the
functioning ts implicit in the formation of the party.
(see page 5l I of the Report).

In a subsequent passage (at page 541) this aspect was

commented upon as follows:-

"It (Article l7(2) provides as basic guarantee to the
citizen against usurpation of his will to freely
participate in the affairs and governance of
Pakistan through political activity relating
thereto ". (Emphasts supplied).

Thus, in the scheme of out Constitution, the guarantees

"to form a political party" must be deemed to comprise also
the right by that political party to form the Government,
wherever the said political party possesses the requisite
majority in the Assembly. As was explained by the Chief
Justice Muhammad Haleem in the same judgment:-

"Our Constitution is of the pattern of parliamentary

democracy with a Cabinet system based on party
system as essentially it is composed of the
representatives of a party which is n majority... it is
a party system that converts the results of a
Parliamentary election into a Government".

Accordingly, the basic right o'to form or be a member of

a political party" conferred by Article I7(2) comprises the
right of that political party not only to form a political party,
contest elections under its banner but also, after successfully
contesting the elections, the right to form the Government if
its members, elected to that body, tre in possession of the

,l requisite majority. The Govemment of the political party so

4 formed must implement the programme of the political party

which the electorate has mandated it to carry into effect. Any
unlawful order which results in frustrating this activity, by
removing it from offrce before the completion of its normal
tenure would, therefore, constitute an infringement of this
Fundamental Righf'.
 24

Relationshio between svmbol and a political partv

23. Indian Supreme Court in the case of Kanhivalal Omar

vs. R.K. Trivedi & Ors. 1986 AIR 1ll. 1985 SCR Supl. (3)
lhighlighted the importance of symbols for political parties in
the following words:
"The use of a symbol, be it a donkey or an elephant,
does give rise to an unifying effect arnongst the
people with a common political and economic
progromme and ultimately helps in
the
establishment of a Westminster type of democracy
whtch we have adopted with a Cabinet responsible
to the elected representatives of the people who
constitute the Lower House. The political parties
have to be there if the present system of
Government should succeed and the chasrn dividing
the polittcal parties should be so profound that o
change of administratton would in fact be a
revolution disguised under a constitutional
procedure. It is no doubt a paradox that while the
country as a whole yields to no other in its
corporate sense of unity and continuity, the working
parts of its political system cffe so organized on
party basis in other words on systematized
dffirences and unresolved conflicts. That is the
essence of our system and it facilitates the setting
up of a goverwnent by the majority".

24. In our jurisdiction, the Apex Court in the case of Mrs

Benazir Bhutto vs. Federation of Pakistan (PLD 1989 SC
66) has held that allocation of symbol to a political party is its
fundamental right. The relevant para of the judgment is

reproduced as under:-
"The tertn "election is a comprehensive term and
includes all the stages of the election comrnencing
_frorn, the calling of the electorate to vote until the
declaration and notification of the Jinal result.
Obviously casting of votes for the candidates is the
, most important stage in the process of elections.
Now while Rule-9 of the Rules permits a political
party to obtain a cotilrnon symbol to focilitate the
voter to identify hk party candidate, section 21 of
the Act omits to recognize this right. But this Court
has found that elections may be held on party basis
in every constituency by virtue of the Fundamental
Right conferred on the citizens of this country by
Article 17(2) of the Constitution. Thus qn
inconsistency exists between Section 2l of the Act
and the Fundamental Right aforesaid. Section 21,
as it now stands, is neither cognizant of the
existence of political parties nor accords any
 25
recognition to them. Indeed be failure therein to
moke any provision for allocation of any symbol to
v a political party, which alone can enable it to
ffictively participate in the process of elections,
renders nugatory the right to form a political party
and accomplish its objectives, namely, to organize
and fight an election with a view to capturing
political power. Accordingly, I agree with rly
learned brother Shafiur Rahman, J. that Section 2l
is vocative of the Fundamental Right contained in
Article 17(2) and ts void to the extent indicated by
him. The petition, accordingly, must succeed.

Conclusion
25. The survey of the case-law stated above and the
enabling provision of the Constitution as well as the Act lead
us to the conclusion that it is the fundamental right of every
citizen of Pakistan not only to form political par:ty but the
political pafiy should be provided a conducive atmosphere to
contest election for the Parliament, Provincial Assembly,
Senate and to form a Government. It has the right to contest
election under a common symbol this constitutional right
cannot be denied to it on the basis of absurd provision of law.
Therefore, the impugned decision of the ECP is backed by no
legal provision either under the Act or under the Constitution.
Therefore, the same is illegal.
26. Above are the reasons for our short order dated
10.01 .2024, which is reproduced as under:-

"For the reasons to be recorded later and subject to

amplifications and explanations made therein, the
instant petition is allowed in the following manner:

t. We hold and declare that the tmpugned

order of the Election Commtssion of
Pakistan (ECP), dated 22.12.2023 passed
=4. in Case No. F.5 (1)/2023-O/o-DD-Law
5" Case No. F.3(10)/2002-Confd (Yol-III) as
illegal, without any lawful authority and of
no legal ffict.

ii. The Election Commission of

Pakistan
(ECP) is directed to forthwith publish the
Certi/icate filed by the petitioner (PTI) on
its Website in terms of section 209 of the
Election Act, 2017.
 26
iii. It rs further held and declared that
Pakistan Tehreek-e-Insaaf efQ is entitled
to the Election Symbol strictly in terms of
Sections 215 and 217 read with any other
enabling provision of the Electiof,:Act,
2017 and Election Rules, 2017". / l
\/t

tK*
2
ffi
Date of hearing & announcement
Ofjudgment...... .......09-1 0 .01.2024
Date of preparation & signing
Ofjudgment............. 12.01.2024

Nawab Shah CS (DB) Justice Ijaz Anwar & Justice Syed Arshad Ali