Aamer Farooq, J.--Through the instant petition, the petitione r has challenged notifications dated 07.05.2015 and 16.09.2015, issued by respondent No, 1, as well as initiation of process/ proceedings by the Election Commission of Pakistan (" ECP") against him.
2. The facts, in brief, are that the petitioner is the chairman of Pakistan Tehreek-e-Insaf ("PTI") and member of National Assembly from NA-56, Rawalpindi. He was served with notice by the ECP regarding violation of the Code of Conduct with respect to bye-elections regarding two Constituencies i,e, NA-63 Jhelum-II and NA-162 Sahiwal-III inasmuch' as he allegedly participated in the election campaign which tantamount to violation of the notifications dated 07.05.2015 and 16.09.2015.
3. Learned counsel for the petitioner , inter alia, contended that bye-elections with respect to Constituencies No, PP- 196 Multan-IV , NA-108 Manch Bahauddin--I and Pk-56 Mansehra-IV were covered under the impugned notifications, whereby prohibition has been placed for the members of the National Assembly , Provincial Assemblies and other public office holders as well as persons on their behalf to visit the Constituencies after announcement of election schedule of bye-elections. It was further contended that the referred notifications are without lawful authority and jurisdiction. It was also contended that impugned notifications are in violation of the fundamental rights of the Constitution provided under Articles 15,16,17 & 19 of the Constitution of the Islamic Republic of Pakistan, 1973. It was further submitted that if there was any legislative backing of the referred notifications, even then they were not valid in view of Article 8 of the Constitution. Learned counsel for the petitioner pointed out that in the similar facts and circumstances, notifications were challen ged before the Hon'ble Lahore High Court, Lahore, which were struck down vide judgment reported as 2015 CLC 1473, however , the referred judgment was set-aside on the basis of non-issuance of notice under Order 27A C.P.C but not on merit. It was also submitted that this Court had jurisdiction in the matter in light of the judgment reported as PLD 2008 SC 735.
Learned counsel submitted that discrimination is evident and floating on the surface. Moreover , notices impugned are not simpliciter notice but initiation of proceedings on the basis of notifications the same is without lawful authority . It was further contended that the ECP is not a judicial authority as proceedings for violation could not have been initiated.
4. Learned counsel for the ECP contended that under Article 218 of the Constitution, it is the mandate of the ECP to ensure fair and free elections; that in case reported as PLD 2012 SC 681. the functions of ECP were laid down which include holding of free and fair elections; that in order to ensure fair and free elections, the ECP can issue orders and pass directions; that if directions of the ECP are not complied with, it has the duty/obligation to ensure passing of appropriate orders.
5. Though the Federal Government was not impleaded as respondent but since vires of the notifications have been' challenged, therefore, notice under Order 27A C.P.C was issued to the Attorney of Pakistan and consequently Raja Khalid Mehmood Khan, DAG entered appearance and supported the case of the ECP. Learned Deputy Attorney General adopted arguments advanced by the learned counsel for the ECP .
6. Election Commission of Pakistan (ECP) is a constitutional body created under the Constitution. Under Article 218(3) of the Constitution, it is the duty of the ECP to organize and conduc t elections and to make such arrangements which are necessary to ensure that elections are conducted honestly , justly , fairly and in accordance with law and that corrupt practices are guarded against. Likewise, duties of the Commission are endorsed under Article 219 of the Constitution which provides that the Commission shall be charged with duties of inter alia holding of general election of the National Assembly and Provincial Assemblies and Local Government Bodies. Moreover , Article 220 of the Constitution places obligation on all executive authorities in the Federation and Provinces to assist the Commission in discharge of their functions. The duties and obligations of the ECP were elaborated by the Hon'ble Supreme Court of Pakistan in case reported as PLD 2012 SC 681. The august Apex Court while disposing of f the case made certain observations, declarations and directions which are as follows:-- "(1) The freedom of association, as enunciated by Article 17 of the Constitution, confers a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic system. The 'freedom of assembly' (Article 16) and 'freedom of speech' (Article 19) also serve to realize this constitutional imperative;