IJAZ UL AHSAN, J.---This Civil Appeal under Article 63A(5) of the Constitution of the Islamic Republic of Pakistan. 1973 (the Constitution) is directed against an order dated 24.10.2017 passed by the Election Commission of Pakistan, Islamabad (the Election Commission). Through the impugned order, by a majority of three against two, the Election Commission found the reference (Reference No.17(9)/2017- Law) filed by the Appellant against the Respondent without merit and answered it in the negative.
2. The brief facts necessary for decision of this /is are that Imran Khan Niazi, Chairman, Pakistan Tehreek-e-Insaf (PTI) in his capacity as Party Head filed a Reference under Article 63A(1) of the Constitution against the Respondent, Ayesha Gulalai, MNA. He sought her disqualification on the ground that she had defected from PTI. In the Reference sent by the Appellant, a declaration was sought on the following grounds:- i) That Ms. Ayesha Gulalai has publically declared on 01.08.2017 that she has resigned from Pakistan Tehreek-e-Insaf, announcement of which has been widely reported in the media; ii) That she has abstained from voting contrary to the direction of the Parliamentary Party during election of the Prime Minister on 01.08.2017 in the National Assembly; iii) That the above-mentioned acts and omissions fall squarely within and constitute valid and actionable grounds under Article 63A (1)(a) and (b) of the Constitution of the Islamic Republic of Pakistan for declaring that she has defected from PTI; and iv) That she was called upon by the Chairman, PTI to show cause under Article 63A(1) of the Constitution as to why such declaration under the aforesaid Article may not be made against her which was sent through a courier service on her two addresses and that she has not responded to the show cause notice within the stipulated time of seven days.
3. On behalf of the Appellant, copies of the declaration were sent to the Election Commission as well as the Speaker, National Assembly. The Speaker, National Assembly referred the same to the Election Commission under clause 3 of Article 63A of the Constitution for necessary action vide letter dated 30.08.2017.
4. The Election Commission sent notices to both sides. The Respondent appeared and denied the allegations and contested the Reference by filing her written reply. The Election Commission heard both sides and came to the conclusion that the Reference was devoid of force and proceeded to answer it in the negative. The Appellant is aggrieved of such decision and has thus filed the instant appeal.
5. Mr. Sikandar Bashir Mohmand, learned ASC, appearing on behalf of the Appellant argues that the Respondent had publically announced her resignation from PTI. In this regard, he has referred to various press cuttings as well as transcripts of various statements made by her in television programs and a press conference addressed by her in which she expressed an intention to leave her political party (PTI). On the basis of such material, the learned ASC has argued that the Respondent had virtually disassociated herself from PTI which had the effect of her resignation and no body was in any doubt that she was no longer a member of PTI. He further argues that despite clear and specific directions of the Party Whip to vote for the designated candidate of PTI in the election of Prime Minister of Pakistan on 01.08.2017 in the National Assembly she abstained from voting by absenting herself from the session. She thereby rendered herself liable to be declared to have defected from her political party. He has further pointed out that a show cause notice was issued by the Appellant in his capacity as Party Head on 10.08.2017 calling upon the Respondent to furnish her reply within the period stipulated in the notice. However, she failed to do so in consequence of which a declaration of defection was issued by the Appellant. The learned ASC submits that the act of resignation and abstention committed by the Respondent falls within the purview of Article 63A(1)(a) and (b) of the Constitution and constitute valid grounds for declaration of defection from her political party. He therefore maintains that the Election Commission erred in law and in fact in coming to the conclusion that the Reference was devoid of force.
6. We have heard the learned counsel for the Appellant and gone through the record with his assistance. It appears from the record that the Respondent, Ms. Ayesha Gulalai became a Member of the National Assembly against a reserved seat as a nominee of MI. The Appellant is the party Head of PTI and has sought her disqualification on the ground of defection in terms of Article 63A of the Constitution. For ease of reference, Article 63A of the Constitution is reproduced below- "63A(1). If a member of a Parliamentary Party composed of a single political party in a House--
(a) resigns from membership of his political party or joins another Parliamentary Party; or
(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to-
(i) election of the Prime Minister or the Chief Minister; or
(ii) a vote of confidence or a vote of no-confidence; or
(iii) a Money Bill or a Constitution (Amendment) Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.
Explanation. - "Party Head" means any person, by whatever name called, declared as such by the Party.
(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.
(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner;
(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.
(5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.
(6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.
(7) For the purpose of this Article,
(a) "House" means the National Assembly or the Senate, in relation to the Federation; and a Provincial Assembly in relation to the Province, as the case may be;
(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.
(8) Article 63A substituted as aforesaid shall come into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010: Provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative."
7. The first question that requires determination is whether the Respondent had resigned from the membership of her political party (PTI). We have gone through the material pointed out by learned ASC for the Appellant which has also been appended with the appeal. We find that although the Respondent on various occasions used language to the effect that she might leave her party or tender her resignation therefrom she did not follow that up with an intentional and voluntary act of resignation in the form of submitting her resignation in writing under her hand to the Party Head.
We have specifically asked the learned counsel for the Appellant if there is any document submitted by the Respondent and duly signed by her which may constitute a letter of resignation. ##ES## He has candidly admitted that no, such document is in existence or in possession of the Appellant.
8. It is also significant to note that the alleged speech/ statement of the Respondent was not made on the Floor of the House. On the contrary, during a speech made on 07.08.2017 on the Floor of the House, she categorically stated that she neither had nor will resign from her party. In addition to the above, the constitution of the PTI provides the manner in which a citizen may become a Member of PTI.It does not contain any provision which deals with resignation or removal from the party.
Therefore, considering the totality of circumstances before us, we find it difficult to hold that the Respondent had tendered her resignation from PTI within the contemplation of Article 63A of the Constitution.
9. It has been argued by the learned ASC for the Appellant that one of the grounds on the basis of which declaration was given to the Respondent was that she had abstained from voting contrary to the direction of the Party Whip during election of Prime Minister of Pakistan on 01.08.2017. The basic object of Article 63A of the Constitution is to ensure that a member of the Parliament should not vote contrary to any direction issued by the Parliamentary Party to which he/she belongs nor he/she should abstain from voting in the House as per party policy in relation to matters mentioned in Article 63A of the Constituent. It is clear and obvious to us and has also been admitted by the learned ASC for the Appellant that no written directions were issued by the Parliamentary Party to the Respondent regarding voting or abstaining from voting in the House as per party policy. It has been stated that such directions were verbally issued. However, such assertion has categorically been denied by the Respondent. This being the position the case of the Appellant hinges merely on oral assertions and affidavits of party loyalists. In the absence of concrete and unassailable evidence establishing that instructions of the Parliamentary Party were conveyed to the Respondent, we are not inclined to visit her with the penalty of disqualification from membership of Parliament [see Sardar Sher Buhadar Khan v. Election Commission of Pakistan through Secretary, Election Commission of Pakistan and others (2017 SCMR 97). In Sardar Sher Buhadar Khan's case while dealing with a similar situation one of us, Mian Saqib Nisar, CJ has held as follows: - "In the circumstances, when the appellants had specifically denied the issuance of party instructions, especially when the party nominated candidates had boycotted the election, it was incumbent upon the respondent to prove through sound evidence that the necessary direction was issued by the party head or his nominee to vote in favour of certain candidate or to refrain from casting their vote. 'When we asked the learned counsel for respondent No.3 to provide any credible evidence to establish that fact, he could not produce any letter issued in this regard."
10. Interestingly enough, the Appellant who is the Party Head and at least three others neither attended the relevant session of the National Assembly on 01.08.2017 nor cast their votes in the same. No reason has either been assigned for such absence. Admittedly, no action was taken against any of the members who neither attended the session nor voted in the same. As such, there is no clear evidence available on record to establish that the Parliamentary Party or the Party Whip had issued instructions to the Respondent, she had received the same, she had disregarded such instructions, and had abstained from voting in favour of a candidate put up or supported by her Parliamentary Party which was contrary to the instructions received by her. Further, at least four other MNAs of the same party were neither present nor exercised their vote. As such, the Party Head cannot be given an unbridled and unchecked authority to pick and choose from amongst members of his party who are similarly placed for the purposes of issuing declaration against them. We are therefore not persuaded to hold that the Respondent had defected by reason of abstaining to vote in accordance with the instructions issued to her by the Parliamentary Party or the Party Whip.
11. It has further been argued on behalf of the Appellant that a show cause notice was issued to the Respondent spelling out the allegations against her and calling upon her to respond to the same.
However, despite receipt of the show cause notice, she failed to respond to the same and clarify her position which means that she had nothing to say in her defence and admitted the allegations mentioned in the show cause notice. In this context, the Election Commission found that although the show cause notice was dated 10.08.2017, it was dispatched through courier service on 18.08.2017. The show cause notice stated that the Respondent had to file her reply within seven days of the same. This being so, the period given to her to respond had already expired by the time the show cause notice was dispatched on 18.08.2017. There was enough material on record to indicate that the Respondent sent her reply to the show cause notice on 24.08.2017 which was received on behalf of the Party Head. Yet, the declaration issued against the Respondent on 28.08.2017 neither referred to the response to the show cause notice nor acknowledged the fact that such response had been received. On the contrary, an impression was sought to be created that the Respondent had failed to respond to the show cause notice which was incorrect. This also shows that the Respondent was neither given a reasonable opportunity to defend her position nor the stance taken by her in her response to the show cause notice even considered. The Election Commission found and we agree that the Respondent was condemned unheard which is clearly violative of proviso to Article 63A of the Constitution which obligates the Party Head to provide any member against whom a declaration is sought to be given an opportunity to show cause why such declaration may not be issued against him. It is clear and obvious from the record that the Respondent was not heard and the stance taken by her in her response to the show cause was not considered which violated her legal and constitutional rights.
12. We have carefully perused the judgment of the Election Commission and find that it has recorded findings of fact after scrutiny and analysis of evidence and the record produced before it.
There is neither misreading or non-reading of evidence nor any defect, flaw or perversity of reasoning in the impugned order. The learned counsel for the Appellant has not been able to point out any error of law or fact calling for interference in the impugned judgment of the Election Commission. We find no good reason to disagree with the conclusions recorded by the Election Commission.
13. For reasons recorded above, we do not find any merit in this appeal which is accordingly dismissed with no order as to costs.