' IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Civil Appeal No,1410 of 2009 by leave of the Court has been filed against the judgment dated 25-11-2009 of a learned Division Bench of Lahore High Court, whereby an Intra-Court Appeal No,852 of 2009 preferred by the appellant was disposed of in the terms of and "for the reasons recorded in another I.-C.A. No,848 of 2009."
2. Precisely, it is the case of the appellant that a sitting member of NA 55 resigned on 9-5-2009, which was accepted on 20-5-2009, and the election in this constituency was required to be held within 60 days from the date of occurrence of vacancy in terms of Article 224 (4) of the Constitution of Islamic Republic of Pakistan [hereinafter referred to "the Constitution"].
Consequently the schedule of election was issued by learned Chief Election Commissioner calling upon the electors of the constituency to elect a member to fill the vacancy. However, the respondent (Provincial Government) approached Lahore High Court by way of writ petition with a prayer to, inter alia, set aside the order dated 15-9-2009 of Chief Election Commissioner, whereby, notification of schedule for bye-election from Constituency NA-55 was issued.
3. The above writ petition was allowed by a Single Judge of Lahore High Court vide judgment dated 9-10-2009, therefore, appellant approached the Lahore High Court by filing I.-C.A. But without any relief hence instance appeal by leave of the Court.
4. Mr. Waseem Sajjad, learned Senior Advocate Supreme Court for appellant contends that the Chief Election Commissioner, who is an independent authority, is required to function under the command of the Constitution and there should be no interference in any manner from any quarter to hamper his functions in discharge of his duties. In support he has relied upon the provisions of Articles 219, 220 and 224(4) of the Constitution and has stated that these provisions are, explicitly, reflective of independence of Election Commission/Chief Election Commissioner which need to be followed strictly without placing any interpretation going against their true meaning and spirit to avoid any violation thereof. Learned counsel has stated that in this case the Provincial Government ought to have followed the Constitution and true spirit of its relevant provision and in case they had any reservation about holding elections, instead of approaching the High Court in its writ jurisdiction, they should have made request to the Chief Election Commissioner.
5. Learned counsel has stated that when the appellant and other candidates request the Chief Election Commissioner to hold the election, a meeting was convened on 15th September, 2009, but, unfortunately, there was no proper representation on behalf of the Punjab Government; obviously, for the reason that they had already filed a writ petition.
6. Learned counsel appearing for the respondent/Government has placed on record statement; palpably, in an attempt to explain their side of case by mentioning therein that on account of serious law and order situation and threats to lives of certain important personalities i,e, political and religious leaders etc, they were constrained to file writ petition before the Lahore High Court to have the elections postponed. Relevant portions of the statement are reproduced hereinbelow:-- "That on account of serious threats to the lives of certain important personalities i,e, political and religious leaders, which threats and reports were received from Federal and Provincial Intelligence Agencies some of which even proved real..."
"That the answering respondents were constrained to file a writ petition in the Lahore High Court, Lahore because due to the knowledge, information and understanding of the respondents, law and order situation prevailing in the Province was not conducive for the holding of elections safely and peacefully...."
"That the situation at present is the same and the respondents still apprehend serious threats of life and security to human being, but at the same time Government of the Punjab is never hesitant to hold elections and in spite of all these apprehensions and threats if this August Court deems it proper to order the worthy Chief Election Commissioner for fixing the date of by-elections, the respondents will never hesitate to comply with the orders of this August Court and will whole- heartedly try their level best to make the best possible arrangements for holding the elections in peaceful environment. However, if this August Court passes such order, it would be in the interest of Justice that a direction is made to the Chief Election Commissioner to fix the date of by-elections by taking the respondents into confidence and with mutual consultation..."
7. On behalf of the Chief Election Commissioner/Election Commission of Pakistan (respondents Nos.3 and 4 herein) cross objections have been filed challenging the judgment of learned Single Judge of High Court and the impugned judgment passed on I.-C.A. Serious objections have been raised by saying that any encumbrance on the powers of the Election Commission of Pakistan/Chief Election Commissioner with regard to issuance of schedule or conduct of election or any other power, which has been conferred upon the Election Commission of Pakistan/ Chief Election Commissioner under the Constitution or the law, will adversely affect their independence in the discharge of its or his functions and if practice of consulting or extending an opportunity of hearing to any executive authority to stake-holder before issuance of schedule for holding elections or bye-elections is allowed to prevail, this would be tantamount to abridging the power of Election Commission/Chief Election Commissioner of Pakistan defeating the very purpose and spirit of Chapter VIII of the Constitution. It is averred that the impugned judgment directly affects their independence as regards their constitutional obligations and the powers conferred upon them under the Constitution and have made a prayer to reverse and set aside the impugned judgment.
8. Learned Attorney General who appeared on Court notice, however, has stated that:
(i) Election Commission in Pakistan should exercise its powers independently as the judiciary is required to do so.
(ii) As far as the process of the election is concerned, it cannot be postponed, however, precautionary measures can be adopted by the Chief Election Commissioner.
(iii) As far as the Chief Election Commissioner is concerned, he enjoys his Constitutional supreme status, therefore, the Chief Election Commissioner should not be made subordinate to the Provincial Government for the purpose of seeking instructions as to whether the election should be held or not.
' In this behalf he has quoted many examples from the neighbouring country and has stated that the provisions of the Constitution in our country are more effective, therefore, on principles no compromise is possible. He has made reliance upon the judgment in the case of Muhammad Shafiq Chaudhry v. Province of Punjab through Chief Secretary, Government of Punjab, Lahore and 2 others 1998 SCM R 1957), Relevant para therefrom is reproduced herein below: "7. We are of the view that the learned Judge in Chamber was not justified in suspending the election after the above order of the learned Chief Election Commissioner dated 18-5-1998 wherein he has dealt with the question of law and order problem also. All the candidates have shown interest and stated that they would like to have the election held on the due date. They also pointed out that there was no law and order situation when the local bodies elections were held in the same constituency and there were 100 candidates and not one."
9. We have considered the above submissions and have also gone through the material placed before us and the relevant constitutional provisions. Part VIII of the Constitution comprising Articles 213 to 226 related to "Elections". Article 213 reflects that Chief Election Commissioner in this part shall be referred to as the Commissioner; whereas, Article 219(b) provides that "the Commissioner shall' be charged with the duty of organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly". Thus it is quite evident that the Constitution places upon the Chief Election Commissioner an obligation to organize the election. Article 220 of the Constitution provides that "it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions; conceptually placing the position of Commissioner and Election Commission upper most while discharge their functions requiring the executive authority to assist; in other words "to aid" the Commissioner and the Election Commission. In that course, the executive authority shall have no option but, to offer, unhesitatingly, its assistance to make the way for the Commissioner or the Election Commission smoother rather than to make it difficult; either to stop, postpone or slow down their pace in the discharge of duties, in this case holding election for seat in question. The provision of Article 220 of the Constitution also reflects to be in pari materia with the provision of Article 190 of the Constitution according to which "all executive and judicial authorities throughout Pakistan shall act in aid of Supreme Court"; which hold the Supreme Court upper most in the hierarchy of the judiciary for which the Constitution envisages that its independence shall be fully secured. Thus, to sum up, testing on the touchstone of afore-referred provisions of Constitution, the net result that comes out is that the Chief Election Commissioner and the Election Commission are absolutely independent with exclusive jurisdiction while performing duties within terms of Part-VIII of the Constitution in which no interference is allowable by any of the parties interested by resorting to any manner and mode, as was done in the present case. All the concerned quarters, namely Federal and Provincial Governments, the Law Enforcing Agencies as well, are under an obligation to ensure that Chief Election Commissioner/Election Commission function independently; and see that they are properly strengthened enabling them to discharge their constitutional commitments fairly, freely and without any hindrance and pressure of whatsoever nature.
10. Having highlighted the constitutional status of the Chief Election Commissioner and the Election Commission in the foregoing para we revert back to the facts of this case. The Chief Election Commissioner by invoking the provisions of Article 224(4), as a matter of discharging his duties to hold the Election within 60 days, passed orders on 15-9-2009 and in pursuance thereof issued notification giving out the schedule for holding election in Constituency NA 55. The Government of Punjab, instead of rendering assistance as a mandate of the Constitution, filed Constitution Petition No,18515 of 2009 seeking a declaration, precisely, in the following terms:- "Wherefore, it is respectfully prayed that the impugned order of respondent No,1 dated 15-9-2009 and the impugned resultant Notification dated 16-9-2009, may graciously be set aside. The petitioners may also be graciously allowed any other or better relief."
' A learned Single Judge of Lahore High Court allowed the above petition vide judgment dated 9- 10-2009. The operative portion of the same is as follows:-- "In the light of above, by allowing this writ petition, the impugned order dated 15-9-2009 and the Notification dated 16-9-2009 based thereupon, are set aside. The CECP thus, shall obviously fix a date for hearing the parties and it is expected that the worthy Chief Election Commissioner of Pakistan shall, after seeking the material provided by the petitioner about the law and order situation and other aspects, and applying his mind, set out a fresh schedule of the election."
' Petitioner herein, challenged the above decision by preferring Intra-Court Appeal No,852 of 2009 which was disposed of in the terms of and for the reasons recorded in a judgment in another I.-C.A.
No,843 of 2009, the operative portion whereof is reproduced as below: "OUR Findings:--
19. It is held that the writ petition filed by the Provincial Government is maintainable; the discretionary orders passed by the Honourable CEC are justiciable on the judicial criteria reserved for orders passed by constitutional functionaries; the order dated 15-9-2009 by the Honourable CEC applied the rules of natural justice to the section 103 ROPA proceedings regarding NA-55 bye- election which were not followed; for the remaining three bye-elections ordered by the Honourable CEC on 15-9-2009 the materials and view of the Provincial Government asked for by the Honourable CEC remain to be considered by him before announcing a fresh schedule of bye- election in the four constituencies in the Province. Consequently, these appeals fail on the challenges to maintainability of the petition and the jurisdiction of the Court, they succeed on the substantive findings assailed. Appeal partly allowed with the consequential directions mentioned above."
11. As it has been pointed out hereinabove that on account of availability of a seat of Assembly, Article 224(4) of the Constitution casts a duty upon the Chief Election Commissioner to hold the election within 60 days, by placing all the above-noted three provisions of the Constitution in juxta position, no other inference can be drawn except that the Chief Election Commissioner is an independent Constitutional authority without trace of subservience and the executive authorities are bound to assist the Commissioner in organizing or holding of the election. In this, we are also fortified by a pertinent observation made, by our brother Raja Afrasiab Khan, J.(as he then was) in the case of AlJehad Trust v. Federation of Pakistan PLD 1997 SC 84. In that adding a note to the main judgment drawn by Ajmal Mian, J. (as he then was) while speaking about the elections, in his wisdom, he expressed that "the elections have to be held strictly in accordance with law, justly, fairly and honestly" and that "this is, indeed, a Herculean job to be done by the "Chief Election Commissioner". It cannot be said that he is subordinate to any Authority while doing his duties in holding free, fair and transparent elections which would, in turn, give birth to a body/institution of the nation called "Parliament (Majlis-e-Shoorah)", Also, in case of Election Commission of Pakistan v. Javaid Hashmi PLD 1989 SC 396, Muhammad Haleem, Chief Justice of Pakistan (as then he was) expressed that "it is of utmost importance that the election should be held as scheduled without being unduly delayed or prolonged by challenging matters at an intermediate stage." Considering the foregoing, in our view, the impugned judgment of the High Court is not sustainable as far as the question of the elections holding for the seat NA 55 is concerned.
12. We, therefore, allow the appeal, set aside the impugned judgment of the High Court to the extent of its setting aside the order dated 15-9-2009 of the Chief Election Commissioner whereby the date of Bye-election was announced for holding election for the seat NA 55. Case is sent back to the Election Commission of Pakistan to proceed with the same from the stage where it was left when the stay order was passed by the Lahore High Court. Appeal stands disposed of accordingly.