M IANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Abdul Khaliq Achakzai, assails the order dated 15.07.2022, passed by the Election Commission of Pakistan ("E.C.P."), whereby his representation under Section 21 of the Elections Act, 2017 ("the 2017 Act") regarding delimitation of constituencies, i.e. PB-50 (Chaman-I) and PB-51 (Chaman-II) proposed by the Delimitation Committee, was dismissed.
2. Learned counsel for the petitioner drew the attention of the Court to the report of the Delimitation Committee, which shows that while carrying out the delimitation of the above two constituencies, Patwar Circle ("P.C.") Saddar Chaman has been divided. He further submitted that other than 10 Mouzas mentioned in the delimitation report, which have been taken out of constituency BP-51 (Chaman-II) and placed in constituency BP-50 (Chaman-I), there are other Mouzas in P.C.
Saddar, Chaman; and that by dividing P.C. Saddar Chaman, the Delimitation Committee has transgressed Rule 10(4) of the Election Rules, 2017 ("the 2017 Rules"), which reads thus:- "10(4) The constituency for an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by the Delimitation Committee: Provided that a Patwar Circle or, as the case may be, a Tapedar Circle shall be the basic unit for delimitation and it shall not be broken under any circumstances: Provided further that in case of urban areas census circle shall not be broken under any circumstances."
3. Learned counsel for the petitioner further submitted that the above-mentioned Rule clearly bars the Delimitation Committee from breaking the P.C. under any circumstances; and that this transgression on the part of the Delimitation Committee was not addressed by the E.C.P. in its impugned order dated 15.07.2022.
4. Learned counsel for the E.C.P. was very fair in his submissions that the Delimitation Committee could not have carried out the process of delimitation of constituencies in such a manner as would result in the breaking of a P.C.
5. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
6. Article 222(b) of the Constitution provides that subject to the Constitution, the Parliament may by law provide for the delimitation of constituencies by the E.C.P. Chapter-III of the 2017 Act deals with the delimitation of constituencies. Section 17(1) of the 2017 Act gives the mandate for the delimitation of constituencies for the elections of the National Assembly and each Provincial Assembly to the E.C.P. in accordance with the provisions of the Constitution, the 2017 Act, and the 2017 Rules. Section 20 of the 2017 Act to which a reference has been made herein above, sets out the essential principles of delimitation. The first factor which the E.C.P. has to have regard to while delimiting constituencies is the distribution of population in geographically compact areas.
7. In exercise of the powers conferred by Section 239 of the 2017 Act, the E.C.P. made the 2017 Rules.
Chapter-III whereof provides for delimitation of constituencies. Rule 10(4) provides that the constituency for an Assembly shall not ordinarily extend to more than one district except in exceptional circumstances for reasons to be recorded by the Delimitation Committee, provided that a P.C. shall be the basic unit for delimitation and it shall not be broken under any circumstances.
8. It appears that the mandate in the proviso to Rule 10(4) of the 2017 Rules escaped the attention of the E.C.P. while passing the impugned order. Since it is an admitted position that while carrying out the delimitation of constituencies PB-50 (Chaman-I) and PB-51 (Chaman-II), the P.C. of Saddar Chaman has been broken, it is safe to hold that such delimitation is in violation of the prohibition in the proviso to Rule 10(4) of the 2017 Rules. On this sole ground, the instant petition is allowed; the preliminary delimitation report prepared by the Delimitation Committee as well as the order dated 15.07.2022 passed by the E.C.P. to the extent of violation of Rule 10(4) of the 2017 Rules is set-aside; and the matter is remanded to the E.C.P. with the direction to decide the matter afresh after hearing the contesting parties in accordance with the law.