SYED ARSHAD ALI, J. The petitioner, through the instant Constitutional Petition, has approached this Court praying that:- "it is therefore, most humbly requested that on acceptance of this writ petition this Hon'ble Court may pleased to i. Declare the impugned notice/letter dated 11.03.2024 issued by the respondent No. 2 as illegal void unlawful and without any lawful authority. ii. Issue directions to the respondents to act in accordance with law and complete/finalize and allow the petitioner to take oath as member National Assembly of Pakistan. iii. Restrain the respondents to take any adverse action that is de-notifying the name of the petitioner from the list of member national assembly on reserved seats for woman (Khyber Pakhtunkhwa)".
2. Brief but relevant facts as narrated in the petition are that the petitioner had applied against the seat reserved for women in the National Assembly on the ticket which was issued to her by Ameer Jamiat Ulema-e-Islam Pakistan ("JUI"). Accordingly, the nomination papers of the petitioner were accepted and her name appears at serial No. 16 of the Form-32 issued under Rule 55(1) of the Election Rules, 2017 ("Rules, 2017"), The final list was issued by the Election Commission of kistan ("ECP") mentioning the name of petitioner at serial No. 14 of Form-33 issued under Rule 56(1) of the Rules, 2017. The name of the petitioner was finally notified as returned candidate against the seat reserved for women in the National Assembly of Pakistan from Khyber Pakhrunkhwa vide Notification dated 4th March, 2024, Subsequently, the Ameer of JUI filed an application to the worthy ECP on 10.03.2024 to amend the error of wrongly notifying Ms. Sadaf Ihsan against the seat reserved for women in the National Assembly and thus the same should be rectified by inserting the name of Ms. Hina Bibi as the candidate on the priority list of JUI. On the said application, the worthy ECP has taken cognizance in the matter and through the impugned order dated 11th March, 2024 has suspended the notification of the petitioner as returned candidate against the seat reserved for women in the National Assembly from Khyber Pakhtunkhwa.
3. It is the contention of the learned counsel for the petitioner that ECP has no jurisdiction in the matter after-publication of final notification in the official Gazette. The respondents have filed their comments. Along with the comments, the respondents have placed on file certain record relating to the names of candidate proposed by the JUI in the priority list. In the said list, the name of the petitioner does not figure and at serial No. 4 of the said list, the name of Sadaf Yasmeen appears who is a different lady. It is the contention of the respondents that the name of the petitioner was never recommended by JUI in the priority list, however, the petitioner as well as respondent No.5 have manoeuvred the record. The respondents have also placed on file the judgment of the Apex Court in Civil Petition bearing No. 274 of 2024 dated 31.01.2024 whereby the petition of respondent No.5/Hina Bibi was disposed of in the following manner:- "3. Therefore, the petitioner shall be considered to be a candidate on the reserved seat for women of the Jamiat-e-Ulema Islam Pakistan for the National Assembly. However, her name will be deemed to be at the bottom of the party list already filed with the ECP submitted pursuant to section 104 of the Elections Act, 2017. And, the List of Validly Nominated Candidates issued by the ECP on 13 January 2024 if revived".
4. We have also requisitioned the original nomination papers of Hina Bibi (respondent No.5) as well as Sadaf Ihsan (the petitioner). The nomination papers of petitioner Sadaf Ihsan would show that she was a candidate of JUI against the reserved seat for women in the National Assembly whereas respondent No.5 Hina Bibi had filed the nomination paper for the Provincial Assembly. However, later the matter was clarified by the Apex Court in the aforesaid judgment. Thus, the matter which is pending before the ECP is that who was the true candidate of Political Party i.e. JUI for the seat reserved in the National Assembly. The essential question before us is whether the ECP has the jurisdiction and power to decide the present election dispute between the petitioner as well as respondent No.5 Hina Bibi.
5. The law is by now settled that ECP is not a Court or a Tribunal[1]. However, Article 218(3) of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution") entrusts the Election Commission with the duty "to organize and conduct the election", and empowers it, in general terms, "to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against", The power so conferred is restricted to the fulfilment of the duty specified, that is, "to organize and conduct the election". Therefore, in order to understand the amplitude of this power, we need to find out the meaning of the term "election" as used in Article 218(3) and to ascertain when the duty of the Election Commission to "conduct the election", as entrusted to it under this Article, starts and when it stands completed. Secondly, it also requires determination whether the duty of the Election Commission to conduct the election and the power to make the necessary arrangements, therefore, can be regulated by a law enacted by the Parliament, if so, what would be the status of the general power of the Election Commission under Article 218(3) of the Constitution vis-a-vis suit such law.
6. The meaning of the term "election" and of the expression "conduct the election" as used in Articles 218 and 225 of the Constitution has already been expounded by a four-member Bench of the Apex Court in Javaid Hashmi's case[2]. The words "election" and "conduct the election", as expounded in that case as well as in the other cases approvingly cited therein, have been used in Articles 218 and 225 of the Constitution in a wide sense to connote the entire election process consisting of several steps starting with the issuance of the election programme and culminating with the declaration of the returned candidate, which include filing of the nomination papers, scrutiny of the nomination papers, withdrawal of the candidates, holding the poll, counting of the votes, consolidation of the result and declaration of the returned candidates, etc. In this wide sense, the process of conducting the election starts with the issuance of the election programme and stands completed on the publication of the names of the returned candidates in the official gazette[3].
7. The general and inherent power of ECP as envisaged under Article 218 (3) of the Constitution admittedly cannot be abridged by any legislative instrument/Act of Parliament. Similarly, section 8 of the Act has been enacted in consonance with the mandate of Article 218 of the Constitution which empowers the ECP to issue such instruction, exercise such powers and make such consequential orders as may in its opinion, be necessary for ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of the Act and Rules. In the case of Zulfiqar Ali Bhatti (supra), the Apex Court in para-14 and 15 of the judgment -has very elaborately dealt with the manner in which the said powers are to be exercised. The said paras are as under:- "14. Sofar as the general power of the Election Commission under Article 218(3) is concerned, the expression "and in accordance with law" used in that very Article clearly suggests that it is to be exercised to ensure that the election is conducted in accordance with the law enacted by the Parliament, and not in suppression thereof. The Election Commission thus, cannot exercise its general power in a manner that would make the conduct of election otherwise than in accordance with the law enacted by the Parliament, that is, in violation or breach of such law.
Therefore, a law enacted by the Parliament that regulates the conduct of elections and consequentially the constitutional duty and power of the Election Commission to conduct the election, is not hit by the provisions of the latter part of Article 222 of the Constitution; as the requirement for the Election Commission to conduct the" election "in accordance with law" while performing its constitutional duty has been prescribed by the Constitution itself not by a law enacted by the Parliament.
15. However, where the law enacted by the Parliament does not cover an unforeseen matter or issue that may arise during the election process, the Election Commission is to exercise its general power under Article 218(3) of the Constitution, in the same manner as all other discretionary powers are exercised, that is, fairly, reasonably and judiciously in accordance with the principles of equity, justice and good conscience. While exercising its general power in such a situation, the Election Commission must remember the fundamental principle that the general, plenary and inherent powers are exercised to supplement, not supplant or supersede, the law. Such powers cannot be exercised to defeat the express provisions of law but are invoked only when there is no specific provision of law on the matter or issue that needs to be dealt with."
8. Once the Election Act, 2017 ('Act") has provided a mechanism for resolution of certain disputes in a particular timeline, then, it should be done in the same manner and resort to any other manner would, thus, be against the mandate of the law as it is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly[4]. Similarly, the Apex Court in the case of Muhammad Akram[5] has very elaborately held that when law requires a thing to be done in a particular manner then it would be a nullity in the eyes of law, if not performed in that very prescribed manner. The Apex Court in the case of Messrs Al-Faiz Industries (Pvt)
Limited[6] had further expounded the proposition by holding that it is well-settled and established' principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred.
9. Indeed, we cannot read mandate of Article 218 of the Constitution in isolation ignoring the other enabling provisions of the Constitution. It is provided under Article 225 of the Constitution that no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act or Majlis-e- Shoora (Parliament). Similarly, it is provided under clause (d) of Article 222 of the Constitution that the Parliament may by law provide the conduct of elections and election petitions the decision of doubts and disputes arising in connection with elections. Chapter-IX of the Act provides a complete mechanism for Election Petition, Appointment of Election Tribunals, presentation of petition, contents of petition and the procedure of adjudication of the Election Tribunal. The scheme of the Act and the explanation of the term "election" as provided in Javaid Hashmi's case (supra) that once the election is completed i.e. the names of the returned candidates have been notified in the official Gazette, then, the ECP become functus officio. In the case of Jameel Qadir[7], the Apex Court in para-14 has observed that:- "The term functus officio literally denotes 'of no further official authority or legal effect' or 'having performed his office', and is used in the context of an officer who is no longer in office or has fulfilled its purpose. This doctrine has an extensive and pervasive application to both the judicial and quasi-judicial authorities and if such doctrine is considered insignificant, it will lead to disorder, therefore, this should be given credence to bring in decisiveness and certitude to legal proceedings. In the instant case, after notifying the returned candidates and appointment of Election Tribunals, the ECP being sanguine and mindful to the provisions contained under section 37 of the 2010 Act, directed the parties to approach the Election Tribunal where the election disputes could be resolved by the Election Tribunal after recording evidence as the ECP had otherwise become functus officio for entertaining and deciding any election dispute. If the learned High Court was of the view that the issue challenged before it was not an election dispute, then definite findings should have been recorded bearing in mind the bar contained under section 37 of the 2010 Act and enabling provisions, but no findings were recorded with regard to jurisdiction".
10. At this juncture, we may also refer to section 4 of Act which empowers the Commission to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it. The verbiage of section 4 of the Act does not suggest that these powers of the ECP are independent and self- contained but these powers can be exercised only in a matter which is sub-judice before it and it has the jurisdiction to decide the said issue. These powers cannot be independently exercised by ECP except in the cases where it can take cognizance during the election process. Therefore, for what has been stated above, we are clear in our mind that in the present case when the names of the returned candidates were notified in the official Gazette, then, the ECP has no jurisdiction to suspend the notification of the petitioner as returned candidate and the jurisdiction purportedly exercised by the ECP under Article 218 of the Constitution is, thus, without jurisdiction.
11. However, this issue was very elaborately answered by the Apex Court in the case of Muhammad Salman[8]. The issue before the Apex Court was that Muhammad Salman was a returned candidate for Punjab Assembly in PP-217 Multan-VII and whose candidature was questioned by a voter, namely, Shoaib Ajmal Qureshi before the ECP under its inherent jurisdiction envisaged by Article 218(3) of the Constitution read with sections 4, 8 and 9 of the Act alleging that Muhammad Salman at the time of filing his nomination papers was underage, he had manipulated the nomination papers and thus could not contest election. The Commission had taken cognizance in the matter and issued notices to Muhammad Salman, the returned candidate and the petition was allowed by the ECP wherein it was held that the winning candidate on the date of nomination paper was not eligible to contest the election and thus his notification as returned candidate was withdrawn. The Apex Court, after a complete survey of all the case law available on the subject, finally concluded the scope, power and function of ECP to have dealt with the matter more particularly when the names of the returned candidates were notified in the official website and Election Tribunals were established for dealing with such controversy has held in para 41 and 42 of the judgment that: "41. It would therefore seem that there is no direct authority, at any rate as would be binding on us, in which the question under discussion was considered or decided directly. The question, nonetheless, remains: did Parliament confer a jurisdiction in terms of section 103AA (and/or section 9) on the Commission to consider the qualification or disqualification, under Articles 62 and/or 63, of a candidate for election or a member of the legislature? In our view, the answer must be in the negative. We begin with an obvious point: neither of the sections expressly or explicitly conferred (or confers) any such jurisdiction. If at all it exists, it has therefore to be read into the provisions, and discovered collaterally or by implication. Now, the question of whether a candidate is qualified or disqualified goes to his status, i.e., ability to contest the election. Both the sections however are primarily (though not exclusively) directed towards what happens on the polling day, i.e., towards the process of the actual conduct of the election itself. Obviously, this remains unaffected by the status (qualified/disqualified) of the candidates. Section 9(1) even otherwise makes this clear, in two ways. Firstly, by adding the test of materiality: the "result of the poll" should have been affected. Even if (and secondly) the test applies only to second condition (a point on which we form no definite opinion), the last part of the subsection, which allows only for a recasting of votes to be ordered, makes it clear that the slate of candidates remains the same. Although section 103AA was worded in a more open ended manner, empowering the Commission to decide whether the poll in the constituency (or, by way of judicial gloss, any one or more polling stations) ought to be declared void, the purpose behind the section was still the same. It remained essentially focused on the day of the election itself. The facts and circumstances in which almost all the reported cases came to be decided also testify, and point, to this conclusion.
42. It is also to be remembered that in the entire process leading up to the day of the election, the question of whether the candidate was qualified or disqualified has already been scrutinized. This scrutiny, of the nomination papers, is done by the Returning Officers. However, they are not the only ones allowed by law to scrutinize the nomination papers. They are also open to objections by others. Under the 1976 Act this right was of a somewhat restricted nature: see section 14(1). Under section 62 of the 2017 Act the right has been extended to any voter of the constituency. There is a right of appeal to an appellate forum comprising of High Court judges. Under the 1976 Act this right of appeal was restricted to candidates only, whereas the 2017 Act has expanded it to include the objector as well. After this appellate forum there can be (though not of course as of right) constitutional petitions under Article 199 and even petitions to this Court under Article 185(3).
In other words, the question of qualification/disqualification is thoroughly tested by a dedicated procedure before the day of the election. And of course, after the election a losing candidate can always file a petition before the election tribunal and again bring the question into issue. There is a direct appeal to this Court against the decision of the election tribunal. When such a framework is available, it is difficult to see why any such jurisdiction should be impliedly read into section 103AA and/or section 9 so as to empower the Commission. In our view, if at all Parliament has the legislative competence to confer such a jurisdiction on the Commission in terms of a law made under Article 222 (an assumption we make for purposes of this judgment, without deciding), then it must be done explicitly and by express conferment, and the use of clear language. The Provisions of section 103AA and section 9 fall for short of this".
12. In view of the foregoing discussion, we hold that no doubt, the ECP has the mandate and authority to conduct free and fair election in terms of Article 218(3) of the Constitution, however, the said provision cannot be read in isolation and it has to be read along with Articles 222 and 225 of the Constitution which envisage that an election dispute can only be challenged before the Election Tribunal established under the Act of Majlis-e-Shoora. Furthermore, the question of adjudication between the two parties so intricate that the ECP is not authorized to decide; therefore, we allow this petition and declare the impugned notice dated 11.03.2024 as well as the entire proceedings pending before the ECP wherein the candidate of the petitioner as returned as candidate for the seat of women in the National Assembly from Khyber Pakhtunkhwa as illegal and without lawful authority.
13. Above are the reasons for our short order of even date.
1. Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189
2. Election Commission v. Javaid Hashmi PLD 1989 SC 396
3. Zulfiqar Ali Bhatti v. Election Commission of Pakistan and others 2024 SCMR 997 (Civil Appeal No. 142 of 2019 decided on 02.11.2022); See Sections 5(4), 57 and 98 of the Act, 2017
4. Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189
5. Muhammad Akram v. Mst. Zainab Bibi. 2007 SCMR 1086
6. Director, Directorate-General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt) Limited and others.
7. Jameel Qadir and another v. Government of Balochistan, Local Government, Rural Development and Agrovilles Department, Quetta through Secretary and others 2023 SCMR 1919
8. Muhammad Salam v. Naveed Anjum and others 2021 SCMR 1675