JAWAD HASSAN, J. Ch. Umer Aftab Dhillu and Bilal Nasir Cheema (the "Petitioners") have filed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") calling in question order dated 22.12.2023 (the "impugned order") passed by the Election Commission of Pakistan (the "ECP")/Respondent No.1. Operative part thereof is reproduced hereunder: "So keeping in view the clear mandate of Elections Act, 2017 read with PTI constitution 2019, and for reasons mentioned hereinabove, it is held that PTI has not complied with our directions rendered therein order dated 23rd November, 2023 and failed to hold intra-party election in accordance with PTI prevailing Constitution, 2019 and Election Act, 2017 and Election Rules, 2017. Therefore, the certificate dated 4 December, 2023 and Form-65 filed by the alleged Chairman, is hereby regretted and rejected accordingly. The provisions of Section 215 of the Election Act, 2017 are hereby invoked and PTI is hereby declared ineligible to obtain the Election Symbol for which they have applied for".
Pursuant to above said observations, the Petitioners have made following prayers in order to: declare that the impugned order of ECP dated 22.12.2023 is without jurisdiction, without lawful authority and illegal and as consequence thereof set it aside forthwith; suspend the impugned order dated 22.12.2023 forthwith and direct the election commission of Pakistan to forthwith "publish the certificate of PTI on website of ECP" as required by S.209(3) in the interest of justice and to restore its election symbol forthwith;.th declare that 'Election Symbol' has been illegally and unlawfully been withdrawn which is, inter alia, violation of fundamental rights of the petitioners including Art. 17 and Art. 25 of the Constitution; direct the Respondents to entertain the grievance of the petitioners in the light of order dated 26.12.2023 passed by the Hon'ble Peshawar High Court, in the supreme interest of justice and fair play; declare that the Election Commission has no jurisdiction to decide that whether intra party elections, held on the direction of Election Commission were according to party Constitution or not; and. publish the list of women candidates for PTI's reserve seats in Punjab.
A. BRIEF BACKGROUND
2. As stated in the petition, the Petitioner No.1 namely Ch. Umer Aftab Dhillu is president of Pakistan Tehreek-e-Insaaf (the "PTI") District Sheikhupura and is contesting election of Member National Assembly and Member Provincial Assembly with electoral symbol "BAT", while the Petitioner No.2 Bilal Nasir Cheema is Ex-General Secretary of the "PTI" District Gujranwala who is contesting election for Member Provincial Assembly. They submitted their nomination papers which were accepted but through the impugned order they have been declared ineligible to obtain election symbol of "BAT" for the General Elections 2024 going to be held on 08.02.2024, hence this petition.
B. PETITIONERS ARGUMENTS
3. Learned counsel for the Petitioners inter alia argues that the "ECP" has no jurisdiction to declare internal appointments of officials of the "PTI" as void hence the "impugned order" is malafide; that the "impugned order" has been passed in a discriminatory manner as the "ECP" never examined even a single political party who follow less onerous processes of holding intra party elections in accordance with their own Constitutions; that intra party elections were conducted on 02.12.2023 and all relevant documents were submitted after complying with provisions of the "Act" therefore, there was no justification to declare the political party ineligible to obtain election symbol and to reject certificate submitted by it in terms of Section 209 of the "Act"; that Section 215 of the Election Act, 2017 (the "Act") depends upon filing of a certificate and statements referred to in Sections 202, 206, 209 and 210 of the "Act" and said certificate was submitted after holding intra party elections on 02.12.2023; that after fulfilling all requirements of law, the "ECP" was mandated to publicize the certificate on its website; that right to contest election under a common symbol (BAT) cannot be taken away by the "ECP" thus the "impugned order" is harsh, irrational and unsustainable; that a level playing field is essential for the healthy competition, ensuring that the elections are a true reflection of the people's choice rather than the result of manipulation or coercion.
C. RESPONDENTS ARGUMENTS Arguments on behalf of Federation of Pakistan
4. Learned law officers objected to maintainability of the petition inter alia on the grounds that the Petitioners have no locus standi to file this petition as the issue raised in this petition has already been dealt with by Peshawar High Court, Peshawar in W.P.No.6173 of 2023 wherein the Court passed interim order dated 26.12.2023; that the Petitioners have challenged to Section 215(5) of the "Act" on the touchstone of Article 17 of the "Constitution"; that on identical issue with regard to general elections 2024 the Supreme Court of Pakistan has already taken cognizance of the matter in Constitutional Petitions No.2 of 2022, 4 of 2023, 47 of 2023 and Civil Petitions Nos.4565 of 2023 and 4305 of 2023 and passed various orders which are binding on this Court under Article 189 of the "Constitution"; that the Election Commission of Pakistan has rightly passed impugned order invoking provisions of the "Act" and the Rules framed thereunder.
Arguments on behalf of Government of Punjab
5. Learned Assistant Advocate General for Punjab also objected to maintainability of the petition inter alia on account of lack of jurisdiction to interfere in the issue which is already pending before the Supreme Court of Pakistan; that there is no direct grievance regarding allocation of symbols asserted against the Respondent No.4 by the Petitioners; that even otherwise Section 215(5) of the "Act" empowers the "ECP" to withhold symbol publication under certain conditions; that the Petitioners have not exhausted alternate remedies within the "ECP" before the relevant forum.
D. DETERMINATION
6. From the contents of the petition and arguments of the parties, the following points have arisen for determination by this Court:
1. Whether the issue of level playing field and election process, already pending before the Supreme Court of Pakistan, can be interfered with at this stage?
2. Whether on the facts and circumstances of the case, this Court can intervene in a matter subjudice before another High Court which has already granted interim relief?
Point No.1
7. At the outset, it is pertinent to mention here that the Supreme Court of Pakistan has taken exception to any move which could directly or indirectly delay the holding of General elections in a number of recent pronouncements. The Supreme Court of Pakistan in "SUPREME COURT BAR ASSOCIATION OF PAKISTAN through its Secretary, Islamabad and others etc. versus FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Islamabad and others" (2023 SCP 337) has held that "The President of Pakistan and the ECP have announced the date for holding of general election to the National Assembly and to the provincial assemblies. The Federal Government, the Provincial Governments and the Islamabad Capital Territory have concurred. The matter of the holding of general election on 8 February 2024 stands resolved. No one should now put forward any pretext to derail democracy." It has further been observed that "Constitutional office holders must adhere to the Constitution; fulfil the duties assigned to them as a sacred trust, and divest themselves from all that is outside their constitutional domain; only then do they serve the people of Pakistan. Pakistan was established democratically, is a democracy and must remain one. When general elections are due, they have to be held. We are humbled in facilitating the President and the ECP to do right by the people of Pakistan." Subsequently, in "ELECTION COMMISSION OF PAKISTAN through its Secretary, Islamabad and another versus BARRISTER UMAIR KHAN NIAZI and others" (Civil Petition No.4365 of 2023), the Supreme Court of Pakistan held that even filling of writ petition resulting in derailing of the process of elections, is contempt of order of the Court in Supreme Court Bar Association Case supra. The Supreme Court while seeking explanation from the counsel for the writ petitioner before the High Court regarding contempt of said order of Supreme Court observed as under: "The respondent No. 1 is stated to be a barrister and as such expected to be well-conversant with the Constitution and to have read the judgment of this Court which had clearly stipulated that, 'no one should be allowed to put forward any pretext to derail democracy'. However, one individual appears to have just done that and it is indeed a matter of considerable regret that he claims to belong to a political party and we are told that he has served as an Additional Advocate-General, Punjab when the said political party was in Government. In view of the conduct of the respondent No. 1 we call upon him to submit an explanation why action for contempt of court should not be initiated against him under the Contempt of Court Ordinance, 2003 read with Article 204 of the Constitution."
Similarly, in "GUL KHAN and others versus SAEED UR REHMAN and others" (2023 SCP 394), the Supreme Court while deciding the matter of delimitation and while referring to the observations in Supreme Court Bar Association Case supra further observed that: "Elections play a crucial role in upholding the principles of democracy; they ensure that the will of the people is respected and that leadership is accountable to the public. When election programme is announced, it is important for any litigation or legal challenges related to elections to be resolved promptly. Delaying elections or prolonging legal disputes can undermine public confidence in the electoral process and the democratic system as a whole. It can also create uncertainty and potentially destabilize the political environment."
The Court further observed in Supreme Court Bar Association Case supra, that the principle of proportionality and the concept of the larger good demand that general elections be given primacy. It has been held that: "The importance of elections in a democracy and the fulfillment of the larger objective of holding a timely election should be given due consideration to ensure that the Court remains within its democratic remit, which in the present case necessitates organizing and conducting of free, fair and timely elections by the ECP."
Even otherwise, it is also noteworthy that the Peshawar High Court, Peshawar vide its order dated 26.12.2023 passed in Writ Petition No.6173-P/2023 has already taken up the same matter wherein the Court has suspended an order of the Election Commission and the matter is still pending adjudication there. In these circumstances, agitating same matter before two parallel forums may result in conflicting opinions thereby undermining the judicial process besides resulting in multiplicity of litigation which may result in delaying the elections. Such an endeavour indicates an attempt to undermine judicial process by sidestepping the express directions given by the Supreme Court in Supreme Court Bar Association Case supra.
8. The main claim of the Petitioners in the instant writ petition is that a level playing field has been denied to the political party of the Petitioners by depriving it for its symbol "BAT" under the cover of intra party election thereby discriminating against all other political parties who were not so denied their respective symbols despite the fact that the other parties followed less onerous processes of holding intra party election in accordance with their respective Constitutions. Importantly, the senior party members already went to the Supreme Court of Pakistan in Constitutional Petition No.47/2023 titled "Gohar Ali Khan versus Federation of Pakistan etc." and the Supreme Court vide its order dated 22.12.2023 directed the "ECP" to ensure equal opportunity for candidates of all political parties to participate in the election process. The Supreme Court further observed that the importance of free and fair elections, and maintaining a level playing field during elections, cannot be overstated. However, despite of clear direction of the Supreme Court of Pakistan the said level playing field has been denied to the Petitioners' political party by way of subsequent denial of the allocation of symbol of "BAT". This particular claim of the Petitioners regarding denial of level playing field in different forms has already been agitated before the Supreme Court of Pakistan in the shape of a contempt petition in reference to the above referred Constitutional Petition No.47/2023 titled "Gohar Ali Khan versus Federation of Pakistan etc." regarding which the Supreme Court has already taken cognizance and matter is pending adjudication there. Moreover, another Bench of the Peshawar High Court, Peshawar has also reserved its judgment regarding the order of Single Bench of Peshawar High Court, Peshawar on the same subject dated 26.12.2023. Therefore, any adjudication on this matter in the given circumstances would tantamount to interference in an issue which is pending adjudication before the Supreme Court of Pakistan besides the possibility of conflicting judgments on the same subject.
9. In view of the above, it is evident that the Supreme Court of Pakistan has already taken cognizance of timely conduct of General Elections in the country vide its judgment dated 03.11.2023, and contempt proceedings, referred to above, are also pending in connection therewith including the matter of level playing field. It is not out of place to mention here that this Court in "MUBASHIR JAVED etc versus PROVINCE OF PUNJAB etc" (PLD 2022 Lahore 817), held that High Court cannot assume jurisdiction in a matter already pending before the Supreme Court. Furthermore, the Supreme Court of Pakistan in similar situation has made an observation in "WATER AND SANITATION AGENCY, LAHORE through M.D. versus LOTTEE AKHTAR BEVERAGES (PVT.) LTD.
LAHORE and others" (2019 SCMR 1146) that the High Court cannot assume jurisdiction in a matter already pending before the Supreme Court. Relevant part thereof is reproduced as under: "Instead of bringing their objections before the Implementation Bench, the respondents chose to file a Writ Petitions before the learned Lahore High Court to express their misgivings. By entertaining and adjudicating such a challenge to the LDA notification, the learned High Court has surprisingly and to our disappointment assumed jurisdiction over a lis that is sub judice before this Court. Such course of action clearly offends the settled norms of judicial propriety and comity, which is disapproved"
Point No.2
10. Learned law officers also objected to maintainability of the petition by submitting that fundamental right of freedom of association is subject to reasonable restrictions imposed by law which in the instant case is the "Act" and the rules framed thereunder, more specifically Sections 208 and 215 of the "Act" and therefore, without challenging the vires thereof and declaration of the same being ultra vires Article 17 of the "Constitution", the relief claimed cannot be granted.
11. The learned counsel for the Petitioners, when confronted, whether the Petitioners have challenged vires of Section 215(5) of the "Act" read with Article 17 of the "Constitution", he replied that the same has been challenged before the Peshawar High Court, Peshawar. It is well settled that the fundamental rights of freedom of association under Article 17 of the "Constitution" is subject to reasonable restrictions imposed by law as held in Suo Motu Case No.7 of 2017 (PLD 2019 Supreme Court 318). Pertinently, the matter is pending before the Peshawar High Court, Peshawar which has already taken the cognizance of the matter under the provisions mentioned under Chapter XI and XII of the "Act" will be interpreted by the competent court. In view of the aforesaid, the relief claimed by the Petitioners cannot be granted without declaring the said provisions of the "Act" ultra vires Article 17 of the "Constitution". Even otherwise, it is a well settled principle of law that when vires of law is challenged, interim relief cannot be granted. Reliance in said regard is placed on "Dr. MUBASHIR HASSAN and others versus FEDERATION OF PAKISTAN and others" (PLD 2008 Supreme Court 80), "FEDERATION OF PAKISTAN versus AITZAZ AHSAN and another" (PLD 1989 Supreme Court 61), "AZEE SECURITIES (PVT.) LTD. through Authorized Officer versus FEDERATION OF PAKISTAN through Secretary of Finance, Revenue Division and 3 others" (2019 PTD 903) and "CHEMPAK (PVT.) LIMITED and another versus SINDH EMPLOYEES' SOCIAL SECURITY INSTITUTION (SESSI) and another" (2003 PLC 380). It is also evident from the record that the Petitioners have also appended with this petition copy of the "impugned order", copy of interim order dated 26.12.2023 of Peshawar High Court, Peshawar alongwith copy of writ petition No.6173-P/2023 titled "Pakistan Tehreek-e-Insaaf (PTI) etc versus Election Commission of Pakistan through its Secretary, ECP House etc". However, in the instant case, perusal of the contents of the petition as well as prayers clearly indicates that the Petitioners, in substance, are seeking two reliefs. Firstly, to suspend the "impugned order" of the "ECP" and secondly as an alternative relief, to implement order of the Peshawar High Court, Peshawar by issuing a direction to the Respondents to entertain the grievance of the Petitioners in the light of said order dated 26.12.2023.
12. As far as second point is concerned, suffice it to note that firstly the said order has already been suspended by another Court of competent jurisdiction wherein all the major stakeholders are party to the proceedings therefore, taking up a matter which has already been suspended by another court of competent jurisdiction, would be against the judicial propriety as it has the potential to result in conflicting judgments on a particular matter. Moreover, the said order has already been challenged before another Bench of the same Court and the judgment is reserved therein while the case is also fixed for regular hearing for 09.01.2024 before the Division Bench of the same Court.
Secondly, as far as the matter with regard to implementation of the order of Single Bench of Peshawar High Court, Peshawar dated 26.12.2023 is concerned, such an order being passed by another High Court can only be implemented by that High Court and its implementation/execution cannot be agitated before this Court.
E. CONCLUSION.
13. In light of the dictums laid down by the Supreme Court of Pakistan and peculiar facts and circumstances of the case especially the pendency of same proceedings before different Benches of the Peshawar High Court, Peshawar, this petition is not maintainable at this stage, hence it is dismissed in limini under the doctrine of "Limine Control" as developed by this Court in "ASIF SALEEM Versus CHAIRMAN BOG University of Lahore and others" (2019 PLD Lahore 407).