Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has brought into question judicial review of notice date 19.08.2022 and subsequent show cause notice dated 13.09.2022 (the "impugned notices") issued by the Respondent No.3/Secretary Election Commission of Pakistan and the Respondent No.4/Director General Law, Election Commission of Pakistan respectively.
2. Mr. Faisal Fareed, ASC submits that the Petitioner is former Prime Minister of Pakistan and chairman of a political party known as Pakistan Tehreek-e-Insaaf (the "PTI"). He further submits that the Petitioner, who was elected for the National Assembly of Pakistan in general elections of 2018 by winning from 5-seats of the National Assembly from across Pakistan and retained seat of NA 95-Mianwali-1, received the impugned notices for committing contempt of the Chief Election Commissioner. He argues that under the Election Act, 2017 (the "Act"), the Election Commission of Pakistan (the "ECP") has no jurisdiction to punish any person for contempt of Court rather the same powers vested with the Supreme Court or the High Court under Articles 175(2) and 204 of the Constitution and such powers cannot be conferred to the ECP through subordinate legislation. He maintains that there is distinction between Article 204 of the Constitution and Section 10 of the Act and the impugned notices have been issued to Petitioner without any legal justification and legal foundation as it is settled law that provisions of the Constitution cannot be overtaken by the provisions of subordinate law. He pleads that wording used under Article 204 of the Constitution only refers to a Court which means the Supreme Court or the High Court excluding all other quasi- judicial authorities and the executive as such impugned notices are contrary to provisions of the Constitution. In order to strengthen his arguments, Mr. Faisal Fareed, ASC has referred to judgments passed by the Hon'ble Supreme Court of Pakistan in Muhammad Hanif Abbasi versus Imran Khan Niazi and others (PLD 2018 SC 189) and Dr. Raja Aamer Zaman versus Omar Ayub Khan and others (2015 SCMR 1303) wherein it has been held that the ECP is neither a Court nor a Tribunal. He argued that the Petitioner has freedom of speech under Article 19 of the Constitution and Article 4 of the Constitution provides an inalienable right to all the citizens of Pakistan to enjoy the protection of law and to be treated in accordance with law. While under Article 5(2) of the Constitution, it is inviolable obligation to obey the Constitution and the law, and as the judgment of Hon'ble Supreme Court of Pakistan is the law of the land which has to be implemented in letter and spirit without any fail.
3. When confronted how this writ petition is maintainable against the impugned notices because the ECP has only required the Petitioner to appear personally to file reply, Mr. Faisal Fareed, ASC submits that writ is still maintainable against the impugned notices in the light of judgment passed by this Court in Reliance Commodities Pvt. Ltd versus Federation of Pakistan (Secretary Revenue) etc. (PLD 2020 Lahore 632) where the Court held a writ maintainable if show cause notice was not lawfully issued by the Competent Authority, or, if the issuance of show cause notice was ultra vires the relevant law and/or if issuance of show cause notice was without jurisdiction or with malafide.
4. When further confronted, the Petitioner is challenging premature action of the ECP and he has only been required to personally appear to file reply because this Court recently in Tariq Iqbal versus Election Commission of Pakistan and others (PLD 2022 Lahore 607) has held (at para 27 page 625) that the ECP is the apex, independent and neutral constitutional authority to hold, organize and conduct elections in Pakistan. It was further held as under: "A bare reading of Article 218(3) of the Constitution makes it clear that the Election Commission is charged with the duty to 'organize' and 'conduct the election'. The language of the Article implies that the Election Commission is responsible not only for conducting the election itself, but also for making all necessary arrangements for the said purpose, prior to the Election Day. By conferring such responsibility on the Election Commission, the Constitution ensures that all activities both prior, and subsequent to Election Day, that are carried out in anticipation thereof, adhere to standards of justness and fairness and in accordance with law. Reliance is placed on "WORKERS 'PARTY PAKISTAN through Akhtar Hussain, Advocate, General Secretary and 6 others Versus FEDERATION OF PAKISTAN and 2 others" (PLD 2012 SC 681)"
5. In response to above, Mr. Faisal Fareed, ASC submits that earlier same notices were issued to other two party leaders of the PTI and the matter was agitated in Writ Petition No.2285 of 2022 in which this Court, after hearing the parties, issued notices to the Respondents and also granted interim relief on the interpretation of Section 10 of the Act by also discussing the point whether the ECP as an independent constitutional authority can act as a Court to the extent of issuing contempt under Part-VII (the Judicator), Chapter 1 and the Commission under Part-VIII (Elections), Chapter 1 of the Constitution. He maintains that the dispute in this case arose out of first notice dated 19.08.2022 issued to the Petitioner by Respondent No.3 without mentioning any provision of law/Act, to which he immediately filed reply but thereafter, second (show cause) notice dated 13.08.2022 was issued to him under Section 10 of the Act, which both are challenged before this Court.
6. In addition to the grounds raised in the (aforesaid) connected writ petition and agitated in this petition too, Mr. Faisal Fareed, ASC submits that the new point to be brought before this Court in this petition is whether the authorities issuing the impugned notices have jurisdiction and competent to exercise such powers because under Rule 4(4) of the Election Rules, 2017 (the "Rules") only the Commission is empowered to issue notice to the Petitioner and to call him personally whereas the first notice (dated 13.08.2022) has been issued by the Secretary and the subsequent show cause notice (dated 13.09.2022) has been issued by the Director General Law of the ECP. He contends that the Commission is defined under Section 2(ix) of the Act read with Article 218(2) of the Constitution, which means that the Commission shall consist of the Commissioner who shall be Chairman of the Commission and four members, each of whom has been a Judge of a High Court from each Province, appointed by the President in the manner provided for appointment of the Commissioner in clause (2A) and (2B) of Article 213 of the Constitution. This is a fresh and valid ground/submission, which also needs determination by the Court.
7. Notices be issued to the Respondents to file report and para-wise comments. A separate notice shall also be issued to learned Attorney General for Pakistan under Order XXVII-A of CPC. Once, the learned Attorney General appears on the next date, this Court will examine the jurisprudence developed by the Hon'ble Supreme Court of Pakistan in the cases of Muhammad Hanif Abbasi and Dr. Raja Aamer Zaman cited above, which are binding on this Court under Article 189 of the Constitution and the judgment of High Court of Sindh in Messrs Muslim Commercial Bank Ltd. versus Federation of Pakistan and 2 others (PLD 2019 Sindh 624).
8. It is to be noted that pursuant to referring the matter by this Court in (aforesaid) identical Writ Petition No.2285/2022 on 07.09.2022, the Hon'ble Chief Justice has constituted a Full Bench which will hear the other matter(s) on 29.09.2022 at 01:00 p.m.
Therefore, office is directed to place this petition too before the aforesaid Full Bench for the above date, after soliciting necessary orders from the Hon'ble Senior Judge.
C.M.No.01 of 2022
9. Notice for the aforesaid date. Since learned Law Officer has been heard as per requirement of Article 199(4) of the Constitution in the light of recent judgment passed by the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan through Secretary, Ministry of Energy (Power Division), Islamabad and others versus Shafiq ul Hassan and others (2020 SCMR 2119) and according to learned counsel for the Petitioner, Respondents No.3 and 4 have no authority to issue the impugned notices in terms of Rule 4(4) of the Rules, balance of convenience tilts in favour of the Petitioner for grant of interim relief. Moreover, this Court has already granted interim relief in the aforesaid (identical) writ petition, vide order dated 30.08.2022 and as in the identical case, the Petitioner has submitted his reply on 12.09.2022 (Annexure-B), therefore, it is directed that the proceedings may continue but no final order shall be passed till outcome of the writ petition and in the meanwhile, no adverse action shall be taken against the Petitioner under garb of the impugned notices, till the next date of hearing.
C.M.No.02 of 2022
10. Dispensation sought for is allowed subject to all just and legal exceptions. C.M. stands disposed of.
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