2025 SCP 14, 2025 SCP 15, 2025 SCP 17, 2025 SCP 19, 2025 SCP 20

Adil Khan Bazai vs Election Commission of Pakistan and another

Citation2025 SCP 14, 2025 SCP 15, 2025 SCP 17, 2025 SCP 19, 2025 SCP 20

CourtSupreme Court of Pakistan

Case No.Crl.O. P. No.1/2025, Civil Appeals Nos.1507 and 1508 of 2024, CPLA 836-K of

Judge(s)Ayesha A. Malik, Syed Mansoor Ali Shah, Aqeel Ahmed Abbasi

ResultOrder Accordingly

Dated: 12 December 2024 Syed Mansoor Ali Shah, J.- These two appeals have been filed under clause (5) of Article 63A of the Constitution of the Islamic Republic of Pakistan ("Constitution") to challenge the orders dated 21 November 2024 ("impugned orders") passed by the Election Commission of Pakistan ("Commission") regarding the declarations made by the Party Head of the Pakistan Muslim League (N) ("PML-N"), which were referred to the Commission by the Speaker of the National Assembly under clause (3) of Article 63A of the Constitution. In the declarations, dated 21 and 31 October 2024, the Party Head of PML-N declared that the appellant had intentionally defected from the Parliamentary Party of PML-N, on the grounds of his sitting on the opposition benches in the National Assembly with the Parliamentary Party of the Sunni Ittehad Council ("SIC") and his abstaining from voting on the Finance Bill 2024 (Money Bill) and the Constitution (26th Amendment) Bill, in contravention of the directions issued by the Parliamentary Party of PML-N. By the impugned orders, the Commission confirmed these declarations under clause (4) of Article 63A of the Constitution. Consequently, the appellant was de seated from his membership in the National Assembly, and his seat (NA-262) was declared vacant.2. Briefly, the background facts of the case are that the appellant contested for a seat in the National Assembly from NA-262, Quetta- I, in the 2024 general elections held on 8 February 2024. In the poll, the appellant secured 20,278 votes as an independent candidate, while the runner-up candidate, belonging to the Jamiat Ulema-e-Islam Pakistan, secured 12,887 votes and the PML-N candidate received 2,510 votes.

Having secured the highest number of votes, the Commission declared the appellant elected as a returned candidate to the said seat in the National Assembly as an independent candidate, through its notification dated 15 February 2024, issued under Section 98 of the Elections Act 2017 ("Elections Act"). Subsequently, on 18 February 2024, a letter was submitted to the Commission by Mr. Muhammad Shahbaz Sharif, the then President of PML-N, under Rule 92(6) of the Election Rules 2017, informing the Commission that the appellant had joined PML-N through a consent affidavit dated 16 February 2024; whereas, on 20 February 2024, a similar letter was submitted to the Commission by Sahibzada Muhammad Hamid Raza, the Chairman of the Sunni Ittehad Council ("SIC"), notifying the Commission that the appellant had joined SIC through a consent affidavit dated 20 February 2024. The Commission accepted the letter received of the President of PML-N but rejected the letter of the Chairman of SIC. However, during the sessions of the National Assembly, the appellant used to sit on the opposition benches with members of the Parliamentary Party of SIC, and also did not vote on the Finance Bill 2024 and the 26th Constitutional Amendment Bill, contrary to the directions issued by the Parliamentary Party of PML-N. Consequently, the President of PML-N declared the appellant's defection from the political party, PML-N, and the Commission, by the impugned orders, confirmed these declarations. Hence, these appeals have been filed by the appellant.

3. Before the Commission, as well as before this Court, the appellant took the stance that he never joined PML-N; therefore, the question of his defection from that political party does not arise. The consent affidavit dated 16 February 2024, purporting to show his joining of PML-N, is fake and fabricated. In this regard, he has instituted a civil suit and filed a criminal complaint. In the civil suit, the said consent affidavit has been suspended, and in the preliminary inquiry conducted in the criminal complaint, it has been found to be fake and fabricated. The appellant elaborated that he belongs to Pakistan Tehreek-e-Insaf ("PTI") and initially filed his nomination paper to contest the seat of NA-262, Quetta-I, under the PTI party ticket. However, due to a dispute regarding PTI's intra- party elections and its election symbol, his nomination paper as a PTI candidate was rejected.

Consequently, he filed another nomination paper as an independent candidate, and contested and won the election for the said seat as an independent candidate. Subsequently, he joined SIC through a consent affidavit dated 20 February 2024, in accordance with PTI's party decision.

However, the joining of independent candidates to SIC has not been recognized as constitutionally valid by the Supreme Court in its judgment passed in Civil Appeal No. 333 of 2024 (Sunni Ittehad Council v. Election Commission of Pakistan); therefore, he remains an independent member of the National Assembly.

4. On the other hand, the stance of the Party Head of PML-N was that the appellant joined PML-N through his consent affidavit dated 16 February 2024 and did not challenge the said affidavit until he was declared to have defected from PML-N. The civil suit and criminal complaint filed by the appellant disputing the genuineness of the consent affidavit are an afterthought, intended solely to evade the consequences of defection. Once a consent affidavit for joining a political party is filed, it becomes irrevocable and cannot be substituted or withdrawn.

5. By the impugned orders, the Commission accepted the stance of the Party Head of PML-N and concluded that, after being elected as an independent candidate, the appellant joined PML-N on 16 February 2024. It further held that the appellant acted contrary to the directions issued by the Parliamentary Party of PML-N by abstaining from voting on the Finance Bill 2024 and the 26th Constitutional Amendment Bill. Consequently, the Commission confirmed the declarations made by the Party Head of PML-N and pronounced that the appellant had ceased to be a member of the National Assembly and that his seat had become vacant.

He argued that only a Civil Court, not the Commission, is competent to adjudicate upon this disputed fact. Furthermore, he contended that the Commission's decision on this matter is not just, fair and reasonable. These contentions were refuted by both the learned counsel for the Party Head of PML-N and the Commission, who submitted that the Commission has the power to decide this question and has rightly determined the genuineness of the said consent affidavit.

7. We have considered the respective stances and contentions of the parties and, with the able assistance of their learned counsel, examined the material available on the record of the case.

8. Before examining the correctness of the Commission's decision regarding the genuineness of the appellant's consent affidavit dated 16 February 2024 and his alleged defection from PML-N, it would be expedient to first address the question of the Commission's jurisdiction: Does a Civil Court or the Commission have the jurisdiction to determine whether the member concerned is a member of the Parliamentary Party of a political party in proceedings under clauses (3) and (4) of Article 63A of the Constitution, for the purpose of determining his alleged defection from that political party?

9. A plain reading of Article 63A of the Constitution reveals that it grants power to the Party Head of a political party to declare that a member of the Parliamentary Party^[1] of that political party has defected, if the member: (a) resigns from the membership of their political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to: (i) election of the Prime Minister or the Chief Minister, (ii) a vote of confidence or a vote of no-confidence, or (iii) a Money Bill or a Constitution (Amendment) Bill.^[2] The use of the word "may" in granting this power to the Party Head indicates that its exercise is discretionary, not obligatory. Even if a member defaults under grounds (a) or (b), the Party Head is not obligated to declare defection necessarily and he may choose not to exercise this power. Furthermore, the requirement of providing the member concerned an opportunity to show cause as to why such a declaration should not be made against him underscores that the Party Head must exercise this power justly, fairly and reasonably, rather than whimsically or arbitrarily. The original jurisdiction conferred upon the Commission, as well as the appellate jurisdiction of this Court, to confirm or otherwise the declaration made by the Party Head, therefore, extends to examining whether the Party Head has exercised this power justly, fairly and reasonably.^[3]

10. A plain reading of clause (1) of Article 63A also makes it evident that the power to make a declaration of defection has been granted only to the Party Head of a political party, not to any other office-bearer of the party, and that it can be exercised only in relation to a member of the Parliamentary Party of that political party in the House, not to any other member of the House. The existence of these two facts is a condition precedent for the exercise of the power to make the declaration of defection against a member of the House and for the exercise of jurisdiction by the Commission to confirm such a declaration.

11. However, Article 63A has not expressly conferred power on the Commission to determine the existence of these facts before exercising its jurisdiction to confirm, or otherwise, the declaration.

Therefore, the question as to the power of the Commission to decide these preliminary or collateral facts, also referred to as jurisdictional facts, arose in the cases of Bahadur Khan Bangulzai^[4] and Giyan Chand.^[5] In Bahadur Khan Bangulzai, the fact in dispute was whether the person who made the declaration of defection was the Party Head of the political party concerned; while in Giyan Chand, the dispute was whether the person (a member of the House) against whom the declaration of defection had been made was a member of the Parliamentary Party of the political party whose Party Head had made the declaration, as is the case in the present matter.

12. In Bahadur Khan Bangulzai, the Balochistan High Court, after referring to several academic and judicial expositions on the doctrine of jurisdictional fact, concluded that "the Chief Election Commissioner has the jurisdiction to determine as to who is the head of the political party, being a jurisdictional fact. However, no powers are available to the Chief Election Commissioner for resolving inbuilt organisational structural disputes which might have cropped up in the folds of a political party." On appeal, this Court endorsed this conclusion and elaborated it further by holding that "if a plea is raised before the Chief Election Commissioner that the person who made the reference on account of alleged defection is not the head of the political party involved, the Chief Election Commissioner is obliged to examine the bona fides of such a plea. If the person who has made the reference as the Head of the political party involved has been acting as such in the past, the Chief Election Commissioner is supposed to proceed on the assumption that he is the Head of the political party involved. However, if he finds no reliable material to conclude that the person who made the reference is factually the Head of the political party involved, and the question relates to inbuilt organisational structural disputes within the political party, he may direct the parties to resolve the question through civil proceedings [in a Civil Court]."

13. In Giyan Chand, the Peshawar High Court observed that "the Chief Election Commissioner did not determine whether or not the jurisdictional fact in terms of Article 63-A of the Constitution existed in order to disqualify the petitioner" and that "Article 63-A of the Constitution prescribes certain facts as sine qua non for its application but none of the facts either existed or were proved against the petitioner by ANP inasmuch as the petitioner did not contest the election as a candidate or a nominee of ANP nor was he a member of ANP in terms of the requirements prescribed by the Constitution of ANP nor did he join ANP after being elected Member of the Assembly."

14. Since the decisions in both the above cases were primarily based on the doctrine of jurisdictional fact, we find it appropriate to briefly outline this doctrine as expounded in various judicial pronouncements.

15. The doctrine of jurisdictional fact connotes that if a certain state of facts must exist before a tribunal or authority can exercise the jurisdiction vested in it, such tribunal or authority may inquire into those facts to determine whether it has jurisdiction but cannot confer jurisdiction upon itself by making an erroneous decision regarding them. As per this doctrine, when a tribunal or authority is vested with jurisdiction limited to decide on a particular matter, it generally has the ancillary power to inquire into and ascertain the existence of facts collateral to that matter when their existence is disputed before it. This power to ascertain collateral facts--referred to as jurisdictional facts-forms the foundation for the exercise of its jurisdiction. A jurisdictional fact is, thus, one upon whose existence the assumption and exercise of jurisdiction by a tribunal or authority depend. It is a prerequisite fact whose existence must be ascertained before jurisdiction over a particular matter can be properly assumed and exercised. Its existence is a sine qua non or condition precedent to the assumption and exercise of jurisdiction. However, a tribunal or authority with jurisdiction limited to a particular matter cannot assume jurisdiction over a matter not conferred upon it by erroneously deciding the jurisdictional fact. An error in determining a jurisdictional fact constitutes a jurisdictional error, rendering the order passed without jurisdiction. Therefore, when a tribunal or authority is established by law to exercise jurisdiction over a particular matter, the legislature defines the scope of its powers. It may, either expressly or by necessary implication, stipulate that jurisdiction can only be assumed and exercised if a particular state of facts exists or is shown to exist. In such cases, though the tribunal or authority is obligated to objectively ascertain, in the event of a dispute, whether that state of facts exists before exercising jurisdiction over the matter, its decision on the existence of that state of facts--the jurisdictional fact--is not conclusive. Instead, the decision is subject to challenge before and final determination by the civil courts of plenary jurisdiction or is subject to correction by the constitutional courts through judicial review.

However, where the legislature grants the power to determine not only the substantive matter but also the preliminary or collateral facts referred to as jurisdictional facts--upon which further jurisdiction depends, the tribunal or authority has the power to conclusively determine whether the jurisdictional fact exists. In the latter case, its decision on jurisdictional facts stands on the same footing as a decision on the fact in issue or the adjudicatory fact regarding the substantive matter, and is likewise final, subject to any right of appeal to a higher forum; it cannot be challenged before a Civil Court of plenary jurisdiction.^[6]

16. There is, therefore, a distinction in the legal effect of the ascertainment or determination of a jurisdictional fact by a tribunal or authority with limited jurisdiction, as expounded by Lord Esher, M.R.,^[7] and subsequently adopted by this Court^[8] and the Indian Supreme Court,^[9] in two scenarios: (1) where the legislature entrusts a tribunal or authority with jurisdiction to adjudicate upon a matter, including the power to determine whether the preliminary state of facts on which its jurisdiction depends exists; and (2) where the legislature confers jurisdiction on such a tribunal or authority to proceed only if a certain state of facts exists or is shown to exist. In the former case, the tribunal or authority has the power to conclusively determine jurisdictional facts, whereas in the latter case, it only objectively ascertains the existence of the state of facts before exercising the jurisdiction conferred upon it. Such a finding must, of course, be based on the weight of the material placed before the tribunal or authority and not made arbitrarily or whimsically, as it remains subject to correction by an appellate forum, if any, or by constitutional courts through judicial review, in addition to final determination by civil courts of plenary jurisdiction.^[10]

17. Article 63A of the Constitution does not explicitly entrust the Commission with the power to determine the preliminary state of facts jurisdictional facts--on which its jurisdiction to confirm the declaration depends. Therefore, the present matter falls within the second of the two categories described above. The Commission has no power to conclusively determine jurisdictional facts but has only the power to objectively ascertain the existence of jurisdictional facts before exercising the jurisdiction conferred upon it under clauses (3) and (4) of Article 63A of the Constitution, for the purpose of determining the alleged defection of a member from his political party. Its finding on a jurisdictional fact, such as whether the member concerned belongs to the Parliamentary Party of a political party, is not conclusive; rather, it is subject to correction by this Court, as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction. The question regarding the Commission's jurisdiction is answered accordingly.

18. Having thus answered the question of law, we now proceed to examine the correctness of the Commission's decision regarding the genuineness of the appellant's consent affidavit dated 16 February 2024 and consequently the ascertainment of the jurisdictional fact whether the appellant is a member of the Parliamentary Party of PML-N.

19. Clause (2) of Article 63A specifies two instances in which a member of a House becomes a member of a Parliamentary Party: (i) if the member is elected as a candidate or nominee of a political party, he automatically becomes a member of the Parliamentary Party constituted by that political party in the House, or (ii) if the member, having been elected as an independent candidate (i.e., not as a candidate or nominee of any political party), subsequently joins a Parliamentary Party through a written declaration. In the first instance, where no act by any person or authority is required for a member of the House to become part (member) of a Parliamentary Party in the House, no dispute can arise regarding the status of such a member. However, in the second instance, where the member's action--namely, a written declaration of joining a Parliamentary Party--is required, a dispute may arise concerning the genuineness or validity of such a written declaration. It is in the latter case that the necessity arises for the Commission, before confirming the declaration made by the Party Head, to ascertain the genuineness or validity of the written declaration made by the member, showing his joining of a particular political party.

20. As observed above, the finding on a jurisdictional fact must be based on the weight of the material placed before the court, tribunal or authority and cannot be made arbitrarily or whimsically. Therefore, it is incumbent upon us to examine and evaluate the weight of the material submitted by the parties before the Commission, as well as before this Court, in support of their respective assertions.

21. The material supporting the stance of the Party Head of PML-N comprises the consent affidavit dated 16 February 2024, showing the appellant's joining of PML-N. In disputing the genuineness of this affidavit, the appellant produced a copy of his consent affidavit dated 20 February 2024, demonstrating his affiliation with SIC. This affidavit bears both his thumb impressions and signatures, and by its submission to the Commission, the appellant implicitly negated the existence of any prior consent affidavit. Furthermore, the appellant submitted a record of his tweet dated 23 February 2024, wherein he expressly denied joining any other party, stating: "I, returned candidate of NA-262 Qta-1, have joined Sunni Ittehad Council. The details of which are: I have voluntarily joined SIC, and all the required documents have been handed over to and received [by the] Election Commission on 20.2.24 at 9:35 PM. I strongly deny joining any other party."

22. The appellant also produced photographs taken during the first session of the National Assembly on 29 February 2024, showing him wearing a badge bearing the photograph of the founding chairman of PTI, Mr. Imran Khan, while taking the oath and signing the roll of members.

Additionally, Bulletin No. 1 of the National Assembly (1st Session 2024), available on the official website of the National Assembly, mentions the appellant as an independent member of the Assembly at serial No. 254. Extracts from the official website of the National Assembly, dated 27 September 2024, which also shows that even till the said date the appellant was an independent member of the National Assembly. The appellant further presented a Civil Court order dated 2 November 2024, suspending the operation of the consent affidavit dated 16 February 2024, as well as an inquiry report dated 5 November 2024 prepared by the SHO, PS, Civil Lines, Quetta, which concluded that the said affidavit appeared to be false and fabricated. Moreover, the appellant produced copies of an affidavit and a statement by Saeed Ahmad, Oath Commissioner, whereby the said Oath Commissioner categorically denied having attested the disputed consent affidavit.

23. The weight of the material produced by the parties in support of their respective assertions is self-evident and requires no elaborate discussion. The Commission, as well as this Court acting as its appellate forum, is obligated to objectively assess the genuineness and validity of the consent affidavit dated 16 February 2024, based on the prima facie probative value of the material produced before it. Upon such assessment, the consent affidavit dated 16 February 2024 attributed to the appellant is found to be neither genuine nor valid.

24. Additionally, the Party Head of PML-N has failed to demonstrate a single instance where the appellant acted as a member of PML-N's Parliamentary Party in the National Assembly. On the contrary, the Party Head himself stated in his declarations that the appellant sits on the opposition benches with members of SIC. In Bahadur Khan Bangulzai, this Court observed: "If the person who has made the reference as the Head of the political party involved has been acting as such in the past, the Chief Election Commissioner is supposed to proceed on the assumption that he is the Head of the political party involved." Applying the principle underlying this observation to the present case, where the appellant is not shown to have ever acted as a member of PML-N's Parliamentary Party but has consistently conducted himself as a member of SIC and PTI, the Commission ought to have proceeded on the assumption that the appellant is not a member of PML-N's Parliamentary Party.

25. Therefore, in our considered view, the Commission's findings on the genuineness and validity of the consent affidavit dated 16 February 2024 are contrary to the weight of the material on record and are, therefore, legally unsustainable. Since the appellant is not found to be a member of PML- N's Parliamentary Party, the declarations made by the Party Head of PML-N regarding the appellant's defection from that party, and the confirmation thereof by the Commission through the impugned orders, were without jurisdiction. Consequently, these appeals are allowed. The impugned orders passed by the Commission are set aside, and the declarations made by the Party Head of PML-N that the appellant had defected from the said political party are not confirmed. Accordingly, the appellant's membership of the National Assembly from seat NA-262 stands restored as an independent member, not as a member of the Parliamentary Party of PML-N.

26. We may, however, clarify that the finding of this Court regarding the genuineness and validity of the consent affidavit dated 16 February 2024, as explained above, is subject to final determination by the Civil Court. Given the seriousness of the appellant's allegations regarding the fabrication and use of a false consent affidavit against Mr. Muhammad Shahbaz Sharif, the then President of PML-N and now the Prime Minister of Pakistan, we expect that the Civil Court, where the civil suit is sub judice, and the Magistrate, before whom the criminal complaint is pending adjudication, shall decide the same as early as possible.

27. These are the reasons for our short order dated 12 December 2024, which is reproduced hereunder for the completion of the record: For reasons to be recorded later, these appeals are allowed. The impugned judgments passed by the Election Commission of Pakistan are set aside, and the declarations made by the Party Head of PML(N) that the appellant had defected from the said political party are not confirmed.

Accordingly, the appellant's membership of the National Assembly from seat NA-262 stands restored as an independent member, not as a member of the Parliamentary Party of PML(N).

Ayesha A. Malik, J.- I have read the judgment authored by my learned colleague Syed Mansoor Ali Shah, J. and agree with it, however, I have given additional reasons in a concurring judgment as it is essential to examine the constitutional role of the Election Commission of Pakistan (ECP) and its conduct while hearing the matter of defection under Article 63A of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) as during the course of the arguments, a great amount of emphasis was placed on the fact that the ECP is a constitutional body with constitutional powers and that the decisions taken under Article 63A of the Constitution in the instant case are in accordance with its constitutional functions.

2. The subject of elections is dealt with in Part VIII Chapters 1 and 2 of the Constitution wherein the ECP is constituted^[11] and the appointment of the Chief Election Commissioner,^[12] the term of office of the Commissioner and Members^[13] and the terms of their service^[14] are provided for.

Importantly, Article 218 (3) of the Constitution provides that it is the duty of the ECP to organize, conduct and make arrangements for honest, just and fair elections in accordance with law and free from corrupt practices. In furtherance of this constitutional duty, Article 219 of the Constitution confers specific duties on the ECP which include preparing the electoral rolls for the elections to the National Assembly, Provincial Assemblies and the local governments. It also places the duty of organizing and conducting elections to the Senate and the duty to fill casual vacancies in a House or a Provincial Assembly along with the duty to appoint Election Tribunals and hold the general elections to the National Assembly, Provincial Assemblies and the local governments. In this manner, the Constitution provides the duties and establishes constitutional standards that the ECP must uphold in matters related to the elections.

3. Article 218 (3) of the Constitution has been interpreted by this Court time and again holding that the primary duty of the ECP is to ensure free, fair and transparent elections^[15]. This Court has also consistently reiterated that the ECP is required to adhere to the constitutional standards of honesty, justice and fairness while making all necessary arrangements for holding elections, ensuring therein that all election related activities both individually and collectively adhere to the given constitutional standards.^[16] This Court has also clarified that in execution of its duty of organizing and conducting elections, the ECP is not a law making body rather works within the legal framework provided by Parliament.^[17] This is because legal competence for enacting electoral laws is found in Article 222 of the Constitution which gives Parliament legislative competence to enact electoral laws on specific subjects such as allocation of seats, delimitation, preparation of electoral rolls, matters relating to corrupt practices, etc. In the Zulfiqar Ali Bhatti case^[18] while interpreting Article 222 of the Constitution, this Court has specifically stated that the competence to make electoral law is one which regulates the constitutional duty to conduct elections. The Court further stated that the use of the word power in Article 222 of the Constitution^[19] actually confers and means the duties and functions entrusted to the ECP under the Constitution.

4. What is fundamental to the constitutional role of the ECP is the duty to organize and conduct free and fair elections for the benefit of the citizen who enjoys the fundamental right to not only contest elections but also the right to vote for the candidate of their choice under Article 17 (2) of the Constitution. This fundamental right is also an expression of the choice of the voters under Article 19 of the Constitution. In the exercise of these fundamental rights which culminate through the electoral process and voting, voters are able to choose the composition of their government by exercising their choice and ability to participate.^[20] These rights are so integral that their violation results in the denial of other fundamental rights such as the right to be protected and treated in accordance with the law, the right to life and liberty, and the inviolability of dignity.^[21] This constitutional duty of the ECP was discussed in the Muhammad Sibtain Khan case ^[22] wherein this Court differentiated between the legal concept of power and duty and concluded that a constitutional duty is not the same as a constitutional power and that the ECP had failed to maintain the distinction between these two distinct legal concepts. The Court explained that Article 218 (3) of the Constitution imposed a constitutional duty on the ECP and that Articles 220 and 224 were in furtherance of that duty and cannot be read as a constitutional power which would make the ECP the master of all electoral matters. The reason given was simple, that on a constitutional plane, the ECP is not the master rather the forum or organ that must perform the task which lies at the heart of the constitutional democracy.

5. The facts of the instant case compel us to once again reiterate that the constitutional duty of the ECP cannot be considered as an overarching constitutional power vis--vis other constitutional provisions and institutions. The ECP is, as per the constitutional mandate, an independent body, duty bound to conduct free and fair elections and duty bound to ensure that those elected by the people remain in government. The independence of the ECP is the fundamental safeguard in a democratic system which maintains the integrity of the elections, and ensures that the will of the people translates into their consent to be governed by the elected representatives. This is what gives legitimacy to the government because it is based on the choice of the people. This is what builds public confidence, protects the rule of law and protects people from political manipulation.

6. The Constitution expressly provides that the authority of government rests solely on the will of the people. This will manifests itself through the peoples exercise of their right to vote and participate in the electoral and political process. Elections are the primary manner in which registered voters elect representatives who will govern on their behalf and exercise the powers of the government.

This is a fundamental right guaranteed by the Constitution.^[23] The facts of this case show that the ECP failed to perform its constitutional duty to actualize the will of the people. The Appellant in these cases is an elected member of the National Assembly against whom a reference for defection was filed under Article 63A of the Constitution. The allegation against him is that he defected from his party being PML(N). The Appellant in his defence clearly and unequivocally stated that he was elected as an independent candidate for NA-262 (Quetta-I) and was accordingly notified on 15.02.2024.^[24] He then joined Sunni Ittehad Council (SIC) on the basis of his affidavit dated 20.02.2024 along with a letter dated 20.02.2024 issued by the Chairman SIC to the ECP informing them of his joining SIC. However, on account of the judgment passed in the SIC case ^[25], he remained an independent member of the National Assembly. He also clearly stated that he never submitted the affidavit dated 16.02.2024 wherein it is alleged that he has joined PML(N), that this affidavit is a fake and fabricated document for which he has instituted a civil suit as well as a criminal complaint. In the civil suit, the said affidavit was suspended by the Senior Civil Judge-I, Quetta on 02.11.2024 and in the criminal complaint, on the basis of a report filed by the SHO the said affidavit was stated to be fake and fabricated. Hence, the Appellant's entire case before the ECP was premised on the fact that he was never a candidate for or a member of the PML(N).

When the issue of defection came up, the ECP did not consider any of the material evidence relied upon by the Appellant nor did they consider his stance with reference to the affidavit of 16.02.2024.

Given that there were two affidavits before the ECP, it had to thoroughly examine the documents in order to determine whether it could proceed under Article 63A of the Constitution. Instead, the ECP accepted the version of the party head of PLM(N) without any scrutiny and proceeded on that basis. The ECP did not specifically considered the denial of the affidavit of 16.02.2024 and denial of the letter of the party head dated 17.02.2024, nor did they provide the Appellant with these documents until he sought a direction from the High Court of Balochistan on 31.10.2024 to provide him the required documentation. Instead, the ECP opted to act on the letter of the party head of PML(N) dated 17.02.2024 without following due process which not only violated the Appellant's right to due process and fair hearing but also violates the right to vote of the people who voted for the Appellant. In doing so, the ECP also disregarded the stay order dated 02.11.2024 issued by the Senior Civil Judge-III, Quetta and ignored the proceedings in the criminal complaint. These actions of the ECP demonstrate a leaning by the ECP in favour of a political party and the government which totally negates its constitutional duty and the Constitution's standards to act honestly, justly and fairly. Consequently, when political competitors are not afforded equal opportunities during the election period, it results in a violation of the citizens' fundamental rights. In terms of the judgment in this matter, authored by Justice Syed Mansoor Ali Shah, the ECP should have confirmed that the affidavit of 16.02.2024 was a genuine document and should have confirmed the genuineness of the declaration made by the party head of PML(N). Without tentative appraisal of these documents, the ECP's decision is not sustainable and violates the fundamental right to vote of the people who actually voted for the Appellant.

7. This Court has reminded the ECP that elections are the lifeline to democracy and the ECP is the guarantor of electoral integrity.^[26] The independence of the ECP, therefore, is fundamental to the election process without which the very foundation of democracy is undermined. This Court has also recognized and declared that the ECP should not become subservient to political influences, or political engineering rather remain an impartial custodian of democracy as any leaning of the ECP in favour of the government would compromise the legitimacy of the political system.^[27] At the heart of protecting electoral integrity is the right to vote and the exercise of this right, by the people. The supremacy of the vote underscores the idea, that power and legitimacy in a democratic system derives its consent from the governed which is why an independent constitutional body is required to ensure that the will of the people by way of election is actualized.

It is unfortunate that despite clear pronouncements by this Court, the ECP conducts itself in a manner that is not in line with its constitutional duty rather aligned with the notion that they have the constitutional power to disregard other constitutional institutions and the basic right of the vote.

Dated: 12 December 2024 Ayesha A. Malik, J.- I have read the judgment authored by my learned colleague Syed Mansoor Ali Shah, J. and agree with it, however, I have given additional reasons in a concurring judgment as it is essential to examine the constitutional role of the Election Commission of Pakistan (ECP) and its conduct while hearing the matter of defection under Article 63A of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) as during the course of the arguments, a great amount of emphasis was placed on the fact that the ECP is a constitutional body with constitutional powers and that the decisions taken under Article 63A of the Constitution in the instant case are in accordance with its constitutional functions.

2. The subject of elections is dealt with in Part VIII Chapters 1 and 2 of the Constitution wherein the ECP is constituted^[28] and the appointment of the Chief Election Commissioner,^[29] the term of office of the Commissioner and Members^[30] and the terms of their service^[31] are provided for.

3. Article 218 (3) of the Constitution has been interpreted by this Court time and again holding that the primary duty of the ECP is to ensure free, fair and transparent elections^[32]. This Court has also consistently reiterated that the ECP is required to adhere to the constitutional standards of honesty, justice and fairness while making all necessary arrangements for holding elections, ensuring therein that all election related activities both individually and collectively adhere to the given constitutional standards.^[33] This Court has also clarified that in execution of its duty of organizing and conducting elections, the ECP is not a law making body rather works within the legal framework provided by Parliament.^[34] This is because legal competence for enacting electoral laws is found in Article 222 of the Constitution which gives Parliament legislative competence to enact electoral laws on specific subjects such as allocation of seats, delimitation, preparation of electoral rolls, matters relating to corrupt practices, etc. In the Zulfiqar Ali Bhatti case ^[35] while interpreting Article 222 of the Constitution, this Court has specifically stated that the competence to make electoral law is one which regulates the constitutional duty to conduct elections. The Court further stated that the use of the word power in Article 222 of the Constitution^[36] actually confers and means the duties and functions entrusted to the ECP under the Constitution.

4. What is fundamental to the constitutional role of the ECP is the duty to organize and conduct free and fair elections for the benefit of the citizen who enjoys the fundamental right to not only contest elections but also the right to vote for the candidate of their choice under Article 17 (2) of the Constitution. This fundamental right is also an expression of the choice of the voters under Article 19 of the Constitution. In the exercise of these fundamental rights which culminate through the electoral process and voting, voters are able to choose the composition of their government by exercising their choice and ability to participate.^[37] These rights are so integral that their violation results in the denial of other fundamental rights such as the right to be protected and treated in accordance with the law, the right to life and liberty, and the inviolability of dignity.^[38] This constitutional duty of the ECP was discussed in the Muhammad Sibtain Khan case^[39] wherein this Court differentiated between the legal concept of power and duty and concluded that a constitutional duty is not the same as a constitutional power and that the ECP had failed to maintain the distinction between these two distinct legal concepts. The Court explained that Article 218 (3) of the Constitution imposed a constitutional duty on the ECP and that Articles 220 and 224 were in furtherance of that duty and cannot be read as a constitutional power which would make the ECP the master of all electoral matters. The reason given was simple, that on a constitutional plane, the ECP is not the master rather the forum or organ that must perform the task which lies at the heart of the constitutional democracy.

This is a fundamental right guaranteed by the Constitution.^[40] The facts of this case show that the ECP failed to perform its constitutional duty to actualize the will of the people. The Appellant in these cases is an elected member of the National Assembly against whom a reference for defection was filed under Article 63A of the Constitution. The allegation against him is that he defected from his party being PML(N). The Appellant in his defence clearly and unequivocally stated that he was elected as an independent candidate for NA-262 (Quetta-I) and was accordingly notified on 15.02.2024.^[41] He then joined Sunni Ittehad Council (SIC) on the basis of his affidavit dated 20.02.2024 along with a letter dated 20.02.2024 issued by the Chairman SIC to the ECP informing them of his joining SIC. However, on account of the judgment passed in the SIC case ^[42], he remained an independent member of the National Assembly. He also clearly stated that he never submitted the affidavit dated 16.02.2024 wherein it is alleged that he has joined PML(N), that this affidavit is a fake and fabricated document for which he has instituted a civil suit as well as a criminal complaint. In the civil suit, the said affidavit was suspended by the Senior Civil Judge-I, Quetta on 02.11.2024 and in the criminal complaint, on the basis of a report filed by the SHO the said affidavit was stated to be fake and fabricated. Hence, the Appellant's entire case before the ECP was premised on the fact that he was never a candidate for or a member of the PML(N).

When the issue of defection came up, the ECP did not consider any of the material evidence relied upon by the Appellant nor did they consider his stance with reference to the affidavit of 16.02.2024.

7. This Court has reminded the ECP that elections are the lifeline to democracy and the ECP is the guarantor of electoral integrity.^[43] The independence of the ECP, therefore, is fundamental to the election process without which the very foundation of democracy is undermined. This Court has also recognized and declared that the ECP should not become subservient to political influences, or political engineering rather remain an impartial custodian of democracy as any leaning of the ECP in favour of the government would compromise the legitimacy of the political system.^[44] At the heart of protecting electoral integrity is the right to vote and the exercise of this right, by the people. The supremacy of the vote underscores the idea, that power and legitimacy in a democratic system derives its consent from the governed which is why an independent constitutional body is required to ensure that the will of the people by way of election is actualized.

JUDGMENT

Syed Mansoor Ali Shah, J.- These two appeals have been filed under clause (5) of Article 63A of the Constitution of the Islamic Republic of Pakistan ("Constitution") to challenge the orders dated 21 November 2024 ("impugned orders") passed by the Election Commission of Pakistan ("Commission") regarding the declarations made by the Party Head of the Pakistan Muslim League

(N) ("PML-N"), which were referred to the Commission by the Speaker of the National Assembly under clause (3) of Article 63A of the Constitution. In the declarations, dated 21 and 31 October 2024, the Party Head of PML-N declared that the appellant had intentionally defected from the Parliamentary Party of PML-N, on the grounds of his sitting on the opposition benches in the National Assembly with the Parliamentary Party of the Sunni Ittehad Council ("SIC") and his abstaining from voting on the Finance Bill 2024 (Money Bill) and the Constitution (26th Amendment) Bill, in contravention of the directions issued by the Parliamentary Party of PML-N. By the impugned orders, the Commission confirmed these declarations under clause (4) of Article 63A of the Constitution. Consequently, the appellant was de seated from his membership in the National Assembly, and his seat (NA-262) was declared vacant.2. Briefly, the background facts of the case are that the appellant contested for a seat in the National Assembly from NA-262, Quetta- I, in the 2024 general elections held on 8 February 2024. In the poll, the appellant secured 20,278 votes as an independent candidate, while the runner-up candidate, belonging to the Jamiat Ulema-e-Islam Pakistan, secured 12,887 votes and the PML-N candidate received 2,510 votes.

6. In addition to the above respective stances of the parties, the learned counsel for the appellant vehemently contended that the Commission does not possess jurisdiction under Article 63A of the Constitution to decide the disputed question of whether the consent affidavit dated 16 February 2024 is genuine or fake, and consequently, whether the appellant is a member of the Parliamentary Party of PML-N. He argued that only a Civil Court, not the Commission, is competent to adjudicate upon this disputed fact. Furthermore, he contended that the Commission's decision on this matter is not just, fair and reasonable. These contentions were refuted by both the learned counsel for the Party Head of PML-N and the Commission, who submitted that the Commission has the power to decide this question and has rightly determined the genuineness of the said consent affidavit.

7. We have considered the respective stances and contentions of the parties and, with the able assistance of their learned counsel, examined the material available on the record of the case.

9. A plain reading of Article 63A of the Constitution reveals that it grants power to the Party Head of a political party to declare that a member of the Parliamentary Part^[45] of that political party has defected, if the member: (a) resigns from the membership of their political party or joins another Parliamentary Party; or (b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to: (i) election of the Prime Minister or the Chief Minister, (ii) a vote of confidence or a vote of no-confidence, or (iii) a Money Bill or a Constitution (Amendment) Bill.^[46] The use of the word "may" in granting this power to the Party Head indicates that its exercise is discretionary, not obligatory. Even if a member defaults under grounds (a) or (b), the Party Head is not obligated to declare defection necessarily and he may choose not to exercise this power. Furthermore, the requirement of providing the member concerned an opportunity to show cause as to why such a declaration should not be made against him underscores that the Party Head must exercise this power justly, fairly and reasonably, rather than whimsically or arbitrarily. The original jurisdiction conferred upon the Commission, as well as the appellate jurisdiction of this Court, to confirm or otherwise the declaration made by the Party Head, therefore, extends to examining whether the Party Head has exercised this power justly, fairly and reasonably.^[47]

11. However, Article 63A has not expressly conferred power on the Commission to determine the existence of these facts before exercising its jurisdiction to confirm, or otherwise, the declaration.

Therefore, the question as to the power of the Commission to decide these preliminary or collateral facts, also referred to as jurisdictional facts, arose in the cases of Bahadur Khan Bangulzai^[48] and Giyan Chand.^[49] In Bahadur Khan Bangulzai, the fact in dispute was whether the person who made the declaration of defection was the Party Head of the political party concerned; while in Giyan Chand, the dispute was whether the person (a member of the House) against whom the declaration of defection had been made was a member of the Parliamentary Party of the political party whose Party Head had made the declaration, as is the case in the present matter.

15. The doctrine of jurisdictional fact connotes that if a certain state of facts must exist before a tribunal or authority can exercise the jurisdiction vested in it, such tribunal or authority may inquire into those facts to determine whether it has jurisdiction but cannot confer jurisdiction upon itself by making an erroneous decision regarding them. As per this doctrine, when a tribunal or authority is vested with jurisdiction limited to decide on a particular matter, it generally has the ancillary power to inquire into and ascertain the existence of facts collateral to that matter when their existence is disputed before it. This power to ascertain collateral facts--referred to as jurisdictional facts- forms the foundation for the exercise of its jurisdiction. A jurisdictional fact is, thus, one upon whose existence the assumption and exercise of jurisdiction by a tribunal or authority depend. It is a prerequisite fact whose existence must be ascertained before jurisdiction over a particular matter can be properly assumed and exercised. Its existence is a sine qua non or condition precedent to the assumption and exercise of jurisdiction. However, a tribunal or authority with jurisdiction limited to a particular matter cannot assume jurisdiction over a matter not conferred upon it by erroneously deciding the jurisdictional fact. An error in determining a jurisdictional fact constitutes a jurisdictional error, rendering the order passed without jurisdiction. Therefore, when a tribunal or authority is established by law to exercise jurisdiction over a particular matter, the legislature defines the scope of its powers. It may, either expressly or by necessary implication, stipulate that jurisdiction can only be assumed and exercised if a particular state of facts exists or is shown to exist. In such cases, though the tribunal or authority is obligated to objectively ascertain, in the event of a dispute, whether that state of facts exists before exercising jurisdiction over the matter, its decision on the existence of that state of facts--the jurisdictional fact--is not conclusive. Instead, the decision is subject to challenge before and final determination by the civil courts of plenary jurisdiction or is subject to correction by the constitutional courts through judicial review.

However, where the legislature grants the power to determine not only the substantive matter but also the preliminary or collateral facts- referred to as jurisdictional facts--upon which further jurisdiction depends, the tribunal or authority has the power to conclusively determine whether the jurisdictional fact exists. In the latter case, its decision on jurisdictional facts stands on the same footing as a decision on the fact in issue or the adjudicatory fact regarding the substantive matter, and is likewise final, subject to any right of appeal to a higher forum; it cannot be challenged before a Civil Court of plenary jurisdiction.^[50]

16. There is, therefore, a distinction in the legal effect of the ascertainment or determination of a jurisdictional fact by a tribunal or authority with limited jurisdiction, as expounded by Lord Esher, M.R.,^[51] and subsequently adopted by this Court^[52] and the Indian Supreme Court,^[53] in two scenarios: (1) where the legislature entrusts a tribunal or authority with jurisdiction to adjudicate upon a matter, including the power to determine whether the preliminary state of facts on which its jurisdiction depends exists; and (2) where the legislature confers jurisdiction on such a tribunal or authority to proceed only if a certain state of facts exists or is shown to exist. In the former case, the tribunal or authority has the power to conclusively determine jurisdictional facts, whereas in the latter case, it only objectively ascertains the existence of the state of facts before exercising the jurisdiction conferred upon it. Such a finding must, of course, be based on the weight of the material placed before the tribunal or authority and not made arbitrarily or whimsically, as it remains subject to correction by an appellate forum, if any, or by constitutional courts through judicial review, in addition to final determination by civil courts of plenary jurisdiction.^[54]

Accordingly, the appellant's membership of the National Assembly from seat NA-262 stands restored as an independent member, not as a member of the Parliamentary Party of PML(N).

ORDER

Dated: 22 January 2025 Mr. Nazar Abbas (accused person) has tendered appearance and seeks time to file his written statement. Let the needful be done by tomorrow i.e. 23.01.2025. It is clarified that on 21.01.2025 the Registrar of the Court had tendered appearance on behalf of Mr. Nazar Abbas and submitted on his behalf that the case was not fixed on 20.01.2025 because of the two decisions of the Committees constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 (the "2023 Act") and Article 191(A)(4) of the Constitution. Hence the defence presented by the Registrar on behalf of the Additional Registrar were the two Committees decisions dated 17.01.2025.

2. The learned Attorney General for Pakistan has pointed out that the amicus curiae appointed by this Court yesterday are already counsel in cases challenging the 26th Constitutional Amendment before the Constitutional Bench. Be that as it may, the question before us is the scope of Section 2 of the 2023 Act and does not directly relate to the 26th Constitutional Amendment. Even otherwise, we have asked the learned A.G.P. to suggest other names for appointing as amicus curiae, who are not associated with the challenge laid against the 26th Constitutional Amendment. He remained reluctant to suggest a name. We, therefore, appoint Mr. Ahsan Bhoon, learned ASC, and Khawaja Haris Ahmad, learned ASC as amici curiae in addition to the amici already appointed. Office is directed to intimate them so that can make it convenient to appear in person or through video link before the Court tomorrow.

3. Mr. Shahid Jamil Khan, learned ASC, representing respondents in the main case tendered appearance and requested to assist the Court on the question framed by the Court vide order dated 21.01.2025. He referred to Articles 204(c) and 175(2) of the Constitution to submit that the jurisdiction under Article 187 (Complete Justice) is also available to the Bench and hence the decisions of the Committee can be examined by the Bench. He submits that the administrative order cannot override a judicial order and to the extent of inconsistency the administrative order is void and non est. He has placed reliance on para-43 of case reported as Malik Asad Ali and others vs. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others (PLD 1998 SC 161), Human Right case in the matter regarding disposal of infectious wastes in the Province of Khyber Pakhtunkhwa (PLD 2019 SC 183) and Muhammad Imtiyaz vs. Ch. Muhammad Naeem and others (PLD 2023 SC 306). Walking us through the Supreme Court (Practice and Procedure) Act, 2023, the learned counsel read Sections 2 and 2A and submitted that all the cases pending in the Supreme Court must first be taken-up by the original Committee under Section 2 of the 2023 Act and if the question arises before that Committee whether a case ought to be heard by the Constitutional Bench or the Regular Bench it ought to be referred to the Committee constituted under Article 191A of the Constitution under Section 2A. In the end he submits that the question as to how the Benches are to be regulated is a matter of some serious concern and therefore ought to be heard by a Full Court of this Court.

4. Mr. Munir A. Malik, learned counsel has tendered appearance as amicus curiae. He submits that two fundamental questions arise in this case: (i). that all the cases pending in the Supreme Court are to be first examined by the Committee constituted under Section 2 the 2023 Act and only if a question arises that the matter ought to be sent to the Committee constituted under Article 191A(4) of the Constitution (Section 2A of the Supreme Court (Practice and Procedure) Act, 2023), can the case be sent to the said Committee. (ii). that judicial order cannot be trumped by an administrative order because that directly affects the independence of the judiciary. He added that a case being heard by a Bench cannot be withdrawn through an administrative order. He submits that these questions are of fundamental importance and go to the root of the independence of the judiciary and submits that it ought to be heard by a Full Court of this Court so that the matter is settled once and for all. When asked whether such an order can be passed in contempt proceedings, he submits it can be as in the present case the very defence presented by the accused person is that the case was not fixed before the Court because of the decisions of the two Committees dated 17.01.2025.

5. Mr. Hamid Khan, learned counsel has tendered appearance as amicus curiae and has referred to para-4 of the order passed by this Court on 21.01.2025. He read out the two questions of public importance framed in the said paragraph. Rephrasing the two questions he submits; i). whether a judicial order and its implementation can be undone or varied by a Committee exercising administrative and procedural powers of the Court; and ii). whether a constitutional question coming-up before a Bench of the Court could be decided by it or referred to a Full Court for its determination. He then referred to Articles 175 and 176 of the Constitution to submit that the Supreme Court has been constituted under Article 175 and its constitution has been described under Article 176 of the Constitution. Both these Articles read together do not envisage any divisibility within the Supreme Court regarding the exercise of judicial power. The learned amicus was on his legs when the Court had to rise for today. To come-up tomorrow i.e. 23.01.2025.

ORDER

Dated: 27 January 2025 The underlying facts that have given rise to an unsavoury situation are that a three-member Bench of this Court (comprising Syed Mansoor Ali Shah, Ayesha A. Malik, and Irfan Saadat Khan, JJ.) heard certain cases (CPLA No. 836-K of 2020, etc.) on 13 January 2025. At the outset of the proceedings, an objection was raised regarding the Bench's jurisdiction to hear these cases, which involved a challenge to the constitutionality of a law, on the basis of Article 191A of the Constitution of the Islamic Republic of Pakistan ("Constitution"). After hearing arguments of the learned counsel on the jurisdictional objection, the Bench adjourned the hearing to 16 January 2025 by allowing time to the learned counsel for the parties to make preparation to further assist the Court on the points concerning the jurisdictional objection. The order dated 13 January 2025 is reproduced below: At the very outset, the learned counsel for the petitioners submitted that the present regular bench of the Court cannot hear these cases, as they involve a challenge to the constitutionality of a law, namely, subsection (2) of Section 221-A of the Customs Act, 1969. When asked why this bench cannot hear these cases, the learned counsel referred to the provisions of Article 191A, which was added to the Constitution of the Islamic Republic of Pakistan through the 26th Constitutional Amendment. In response to the petitioners' objection regarding the lack of jurisdiction of the present bench of the Court, the learned counsel for the respondents contended that Article 191A, the basis of the objection regarding jurisdiction, is constitutionally invalid as it infringes upon the salient features of the Constitution, including the independence of the judiciary and the separation of powers among the three organs of the State. He further submitted that a constitutionally invalid amendment cannot oust the constitutionally valid conferment of jurisdiction on the regular benches of the Court.

2. When asked how the present bench of the Court can decide upon the constitutional validity of the newly added Article 191A, the learned counsel for the respondents took the position that since the objection raised and the basis thereof pertain to the jurisdiction of the present bench, it must be decided by it. In support of his stance, he referred to Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66), Fazlul Quader Chowdhry v. Abdul Haque (PLD 1963 SC 486) and Marbury v. Madison (5 US 137 [1803]) and sought time to further assist the Court on this point.

3. Given the objection raised and the reply thereto, we find that it would be necessary to first decide upon the same before proceeding further in the matter at hand. Therefore, the learned counsel for the parties are granted time to prepare their arguments and assist the Court on the said points.

The hearing for arguments on those points is adjourned to 16.01.2025.

On 16 January 2025, the three-member Bench stood reconstituted, with Aqeel Ahmed Abbasi, J., replacing Irfan Saadat Khan, J., and the said cases were posted before the reconstituted Bench.

However, the reconstituted Bench could not proceed with the hearing, as Aqeel Ahmed Abbasi, J., was one of the two judges who had delivered the impugned judgment in these cases in the High Court of Sindh. Consequently, the reconstituted Bench (comprising Syed Mansoor Ali Shah, Ayesha A. Malik and Aqeel Ahmed Abbasi, JJ.) directed the office, by its order dated 16 January 2025, to fix these cases before the earlier Bench on Monday, 20 January 2025, at 1:00 pm. The order dated 16 January 2025 is reproduced below for ready reference: These cases were heard on 13.01.2025 by a bench comprising Mr. Justice Syed Mansoor Ali Shah, Mrs. Justice Ayesha A. Malik and Mr. Justice Irfan Saadat Khan and were posted for 16.01.2025, however, the bench today cannot hear this matter, as the impugned judgment has been authored by one of us (Aqeel Ahmed Abbasi, J.). Considering that it was a part heard matter, let these cases be posted for 20.01.2025 at 01:00 p.m. before the same bench comprising Mr. Justice Syed Mansoor Ali Shah, Mrs. Justice Ayesha A. Malik and Mr. Justice Irfan Saadat Khan. Notice shall also be issued to the Attorney General for Pakistan under Order XXVII-A of the Code of Civil Procedure, 1908 ("CPC").

On 20 January 2025, Mr. Salahuddin, ASC (counsel for one of the respondents in the said cases), appeared before the Bench (comprising Syed Mansoor Ali Shah, Ayesha A. Malik, and Aqeel Ahmed Abbasi, JJ.) that had passed the aforementioned order and pointed out that the cases had not been fixed for hearing as per the court order dated 16 January 2025. The Bench called for the Additional Registrar (Judicial); however, due to his unavailability, the Deputy Registrar (Judicial) appeared. The Deputy Registrar confirmed that the cases had not been fixed on that day, i.e., 20 January 2025 before any regular Bench but had instead been fixed for hearing before the Constitutional Bench on 27 January 2025, pursuant to the decision of the Committee constituted under the Supreme Court (Practice and Procedure) Act, 2023 ("Act"). He further submitted that the decision of the Committee had not yet been communicated to the office, in writing. Upon receiving information of these facts, the said Bench initiated suo motu contempt proceedings against the Additional Registrar (Judicial) for defiance of the court order and for obstructing the administration of justice. The Bench, while calling for his explanation, fixed the hearing of the contempt proceedings for 21 January 2025 by its order dated 20 January 2025. Relevant paragraphs 4 and 5 of the order dated 20 January 2025 are reproduced below:

4. It is a sad state of affairs that a judicial order of this Court has been ignored by the office and the cases put up before the Committee for a decision, despite the precedents of this Court to the contrary reported as Asad Ali v. Federation of Pakistan (1998 SCMR 15), Asad Ali v. Federation of Pakistan (1998 SCMR 130) and Human Rights Case No.14959-K of 2018 (PLD 2019 SC 183). The defiance of the judicial order of this Court lowers the dignity and honour of this Court and hamper the administration of justice. In this background, let notice be issued to the Additional Registrar (Judicial) of this Court as to why contempt proceedings may not be initiated against him.

5. Office shall number this petition and fix it for hearing before us tomorrow i.e., 21.01.2025, when the additional Registrar (Judicial) shall appear in person with the explanation as to why the above- mentioned cases have not been fixed before the Bench today.

On 21 January 2025, the Bench that had passed the aforementioned order was reconstituted, excluding Ayesha A. Malik, J., from the Bench, and the suo motu contempt proceeding was listed before this reconstituted two-member Bench (comprising Syed Mansoor Ali Shah and Aqeel Ahmed Abbasi, JJ.).

2. On 21 January 2025, in response to the notice issued to the Additional Registrar (Judicial) of this Court, the Registrar of the Court appeared on behalf of the Additional Registrar (Judicial), who was reported to be indisposed. The Registrar presented copies of two decisions made by two different Committees: first, the decision of the Committee constituted under Section 2 of the Act; and second, the decision of the Committee constituted under Article 191A of the Constitution. He stated that the Committee constituted under Section 2 of the Act convened its meeting on 17 January 2025 and, by a majority decision, resolved to "withdraw" the said cases from the regular Bench and refer them to the Committee established under Article 191A of the Constitution. Subsequently, the latter Committee convened its meeting on the same date, i.e., 17 January 2025, and directed that all cases challenging the vires of the 26th Constitutional Amendment and vires of law be fixed for hearing before the Constitutional Bench on 27 January 2025. He explained that, because of these decisions by the two Committees, the said cases were not fixed by the office for hearing on 20 January 2025 before the regular Bench. The explanation provided by the Registrar, coupled with the contention raised by Mr. Salahuddin, ASC (counsel for one of the respondents in the said cases), gave rise to the following substantial questions of law of public importance:

(i) Whether the Committees constituted under Section 2 of the Act and Article 191A of the Constitution have the authority to withdraw a case [from a Bench], in which cognisance has already been taken by a regular Bench and serious questions of constitutional law relating to the jurisdiction of the regular Bench have been framed; and

(ii) Whether the said Committees can, by an administrative order, undo the effect of a judicial order, whereby next date of hearing a specific case has been fixed before a regular Bench [to hear arguments on the jurisdiction of the regular Bench].

The Court observed that "[u]nder Article 190 of the Constitution, all executive and judicial authorities throughout Pakistan, including officers within the establishment of this Court, are required to act in aid of the Supreme Court, meaning in aid of its judicial orders, not administrative orders. Furthermore, in accordance with the constitutional mandate of Article 5 of the Constitution, every citizen, including officers within the establishment of this Court, is bound to obey the Constitution and the law. Accordingly, the legality of the explanation put forth by the Registrar, as well as the outcome of the present contempt proceedings, hinges upon the determination of the aforementioned questions."

3. In light of the significance of the questions involved, the Court appointed Mr. Hamid Khan, Sr. ASC, and Mr. Muneer A. Malik, Sr. ASC, as amici curiae to assist in addressing the aforementioned questions. Additionally, the Court granted permission to Mr. Shahid Jamil Khan, ASC (counsel for one of the respondents in the main cases), to assist in the matter. Notice was also issued to the learned Attorney-General for Pakistan to provide assistance on the above questions. The hearing was then adjourned to 22 January 2025 for arguments on these questions.

4. On 22 January 2025, the Court heard the arguments of Mr. Shahid Jamil Khan, ASC (counsel for one of the respondents in the main cases), as well as those of the learned amici curiae, Mr. Muneer A. Malik, Sr. ASC, and Mr. Hamid Khan, Sr. ASC. The Court also appointed two additional amici curiae, Mr. Ahsan Bhoon, ASC, and Khawaja Haris Ahmad, ASC, to assist in addressing the said questions, and adjourned the hearing to 23 January 2025.

5. On 23 January 2025, the Court heard further arguments of Mr. Hamid Khan, Sr. ASC, the learned amicus curiae, as well as from Mr. Salahuddin, ASC (counsel for one of the respondents in the main cases). The Court also heard the arguments of Mr. Ahsan Bhoon, ASC, and Khawaja Haris Ahmad, ASC, the learned amici curiae, as well as the learned Attorney-General for Pakistan.

6. On the same day, i.e., 23 January 2025, the respondent-accused, Mr. Nazar Abbas, the Additional Registrar (Judicial), filed his written reply (Crl.M.A. No. 134/2025) to the show cause notice. He explained his position mostly in the same terms as the explanation provided by the Registrar of the Court, on his behalf on 21 January 2025, as noted above. Some relevant portions of his reply are reproduced below:

1. That the answering respondent in reply to the subject Notice begs to submit that the undersigned has held this Hon'ble Court in the highest respect and esteem throughout his 36 long years of service with unblemished service record. Accordingly, the undersigned cannot even imagine wilful flouting or disregarding any order passed by this Hon'ble Court especially on the last leg of his service career which is going to end in a couple of weeks.

7. That as per the Court Roster, the requisite Bench for the purpose of hearing CPLA No.836-K/2020 etc. was not available on 20.01.2025, therefore, a note was initiated for constitution of Special Bench comprising Hon'ble Judges as mentioned in the order dated 16.01.2025, which partly heard the matter on 13.01.2025.

8. That upon perusal of the office note, the HCJ was pleased to place the matter before the Committee constituted under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023 in the following terms: "May be placed before the Committee tomorrow at 12 noon."

9. That on 17.01.2025, the Committee constituted under Section 2(1) of the Supreme Court (Practice and Procedure) Act, 2023 decided through majority vote that the matter be placed before the Committee constituted under Article 191A(4) of the Constitution of Islamic Republic of Pakistan 1973.

10. That the Committee constituted under Article 191A(4) of the Constitution of Islamic Republic of Pakistan 1973 held its meeting at 12:45 pm on 17.01.2025 and resolved that all cases challenging the 26th Constitution amendment and vires of Law be fixed before the 8 members Constitutional Bench on 27.01.2025, the Court Roster be issued accordingly.

12. That the constitution of Benches or approval of the Roster is beyond the capacity as well as jurisdiction of the answering respondent. The responsibility of the answering respondent at the most is to apprise the Competent Authority to the non-availability of any appropriate bench, which has been not only conveyed before time but also has been suggested to be met with by formation of special Bench so there is no lapse on the part of the answering respondent in the whole scenario.

13. That act of the office regarding non-fixation of the case before the Bench, was neither deliberate not wilful, it was in pursuance of the decisions taken by the two Committees. The answering respondent initiated an office note to comply with the order of the Court dated 16.01.2025 in letter and spirit by the constitution of the requisite Special bench and having no intention to withhold or disobey the order of the Hon'ble Court.

PRAYER Inspite of the above facts, the answering respondent surrenders himself at the mercy of this Hon'ble Court with further prayer that the Show Cause Notice dated 20.01.2025 may kindly be withdrawn in the interest of justice.

7. We have considered the explanation provided by the respondent accused in his reply to the show cause notice, as well as the arguments of the learned amici curiae, the learned Attorney- General and the learned counsel for some of the respondents in the main cases.

Preliminary points regarding the jurisdiction of the Benches that passed the orders dated 13 and 16 January 2025

8. First, we find it appropriate to address two preliminary points raised before us regarding the jurisdiction of the Benches that passed the orders dated 13 and 16 January 2025.

9. The first point raised was that the three-member Bench, which passed the order dated 13 January 2025, lacked jurisdiction to hear cases involving a challenge to the constitutionality of a law, as such matters fall within the exclusive domain of the Constitutional Bench under Article 191A of the Constitution. It was also argued that the said Bench could not examine the vires of the 26th Constitutional Amendment, whereby Article 191A was added to the Constitution, as this too falls within the exclusive domain of the Constitutional Bench under Article 191A.

10. The said point was also rebutted before us with the submissions that the Bench which passed the order dated 13 January 2025 had not commenced hearing the matter concerning the constitutionality of the law. Instead, it was hearing arguments on the objection raised to its jurisdiction to entertain such matters based on Article 191A. Furthermore, the Bench was also deliberating on whether it could examine the constitutionality of Article 191A itself, as the objection to its jurisdiction was rooted in that very Article. Thus, the Bench was addressing the jurisdictional question rather than the substantive matter of the constitutionality of the law involved in the cases before it. Since Khawaja Haris Ahmad, the learned amicus curia, has provided his written articulation on this point, we find it expedient to reproduce the relevant portion here: It is noteworthy that when, on 13.01.2025, the learned Bench took up the matter relating to its jurisdiction to entertain and decide the CPLAs (filed under Article 185(3) of the Constitution) fixed before it, this involved neither assuming jurisdiction over the merits of the CPLAs, nor decision of constitutionality of any law point involved in the CPLAs. Rather, in effect, it only took upon itself the task of ascertaining if Article 191A(3) could be so construed as to exclude the Bench's jurisdiction to hear the CPLAs. To do so, the learned Bench was dealing with the matter like any other case where question of jurisdiction is raised - i.e. (i) first looking at the wording of the provision itself to see if it per se excluded the Court's jurisdiction; and, (ii) if so, to see whether the provision of law relied upon for excluding the Court's jurisdiction constitutes valid law or not. Thus, in the instant case, the learned Bench would first examine the words of Article 191A(3) to ascertain if a plain reading of it excludes the Court's jurisdiction in the matter; and, if such exclusion is a necessary consequence, then the Court would proceed to ascertain the constitutional validity of Article 191A(3). Prima facie it appears that the aforesaid exercise in not covered by exclusionary provisions of Article 191A(3) of the Constitution.

Similarly, Mr. Shahid Jamil Khan, ASC, adopted the same stance. In addition to the cases of Pir Sabir Shah,^[55]Fazlul Quader Chowdhry^[56] and Marbury^[57] referred to by Barrister Salahuddin, he also cited extracts from Justice Fazal Karim's Judicial Review of Public Actions (2nd Edition, Volume 3, pages 1403-1406), where the learned author has discussed several cases from American, English and Pakistani jurisdictions on this point.

11. The second point raised was that the three-member Bench, which passed the order dated 16 January 2025 directing the office to fix certain cases before a particular Bench, acted without lawful authority, and that the said order was passed in contravention of the law governing the constitution of Benches and the assignment of cases. It was contended that the constitution of Benches falls within the domain of the Committee established under Section 2 of the Act, whereas the assignment of cases to Benches is the exclusive authority of the Chief Justice of Pakistan under the Supreme Court Rules, 1980. This point was also contested before us by referring to several precedents where Benches have issued directions for fixing cases even before the Full Court.

12. We are afraid we cannot address or adjudicate upon the above points in the present contempt proceedings, as the said points raised before us are misplaced. This Bench is not seized with a review petition against the orders of the three-member Benches dated 15 and 16 January 2025.

Instead, we are only dealing with the contempt proceedings initiated for the alleged non- compliance with that order. A similar point was raised before this Court during the contempt proceedings against Syed Yousaf Raza Gilani, the then Prime Minister of Pakistan, regarding non- compliance with the directions issued in a judgment.^[58] In that case, a seven-member Bench of this Court rejected the same in the following terms: The Respondent's stand amounts to saying that the order of this Court is non-implementable, as he believes that the same is not in accord with the Constitution of Pakistan and the International law. This argument, if accepted, would set a dangerous precedent and anyone would then successfully flout the orders of the Courts by pleading that according to his interpretation they are not in accord with the law. A judgment debtor would then be allowed to plead before the executing Court that the decree against him was inconsistent with the established law. No finality would then be attached to the judgments and orders of the Courts, even those by the apex Court of the Country. .... The executive authority may question a Court's decision through the judicial process provided for in the Constitution and the law but is not entitled to flout it because it believes it to be inconsistent with the law or the Constitution. Interpretation of the law is the exclusive domain of the judiciary.

(Emphasis added)

Guided by the above reasoning of a larger Bench of this Court, we similarly dispose of the said points with the observation that if any of the parties to the cases in which the said orders were passed, or any other person, was aggrieved by the same, he could have availed of the legal remedy of seeking a review of the order through the judicial process provided under the Constitution and the law. But, no one is entitled to disobey or decline compliance with the court order merely because he believes it to be inconsistent with the Constitution and the law.

13. Next, we proceed to take up and address the aforementioned questions of law, for which the assistance of the learned amici curiae was sought.

(i) Whether the Committees constituted under Section 2 of the Act and Article 191A of the Constitution have the authority to withdraw a case from a Bench in which cognisance has already been taken by a regular Bench and serious questions of constitutional law relating to the jurisdiction of the regular Bench have been framed.

14. The practice of hearing part-heard cases by the same Bench is so well-established in our jurisdiction that neither the learned counsel assisting this Court on the above question nor our research assistants could find and cite any case from our jurisdiction in which a dispute arose and was adjudicated regarding the withdrawal of a part-heard case from one Bench and its reassignment to another, without a request being made by the original Bench hearing the case in its judicial order. However, such disputes have arisen and been adjudicated upon in the neighbouring jurisdiction, i.e., the Indian jurisdiction, in several cases. Since the bench constitution and case-assignment legal framework in both our jurisdiction and the neighbouring jurisdiction are largely similar, the jurisprudence developed there would offer valuable insights for the determination of the question under consideration before this Court. The relevant portions of some of these cases are, therefore, cited below: Zikar v. Govt. of State of M.P. AIR1951 Nag 11 (DB)^[59] The point for consideration is whether the power to regulate the sittings of the High Court which the Chief Justice undoubtedly possesses can be invoked for withdrawing and transferring a case of which a Division Court is in seisin. The power to regulate the sittings of the Court which is an administrative power cannot afford any basis for regulating the mode of hearing of a case by a Court properly seized of it. The power to withdraw and transfer a case from such a Court without its concurrence is a power to prevent the exercise of jurisdiction by that Court which can only be done by virtue of a superior power of control or correction, for which authority must be found either in an express provision or by necessary implication. There is no express provision and in our view there is no warrant for any such implication.

The argument of the learned Counsel for the applicant that the application should have been placed before the Honourable the Acting Chief Justice or that the Acting Chief Justice has the power to withdraw or transfer a case before us without our concurrence is devoid of any basis in law and is in fact opposed to precedents.

(Emphasis added)

M. Ranka v. Hon'ble the Chief Justice (1991) 2 L.W. 225 (DB)^[60] With respect we disagree with the last observation of S. Ramalingam, J. that a party or a counsel may make a special mention before the Chief Justice so that the case pending before one Bench may be posted before another Bench.

So far as other two observations are concerned, we think it right to say that if for some reasons, the learned Judges assigned with a case or cases, find that they should not hear the case or the cases, they may direct the papers to be placed before the Chief Justice for posting such case or cases before some other Bench and in some extraordinary circumstances, the counsel appearing in a case may make a special request that a particular case or cases may not be heard by a particular Bench for reasons none other than the reasons that are spelt out in the principles that no one shall be a judge in his own cause (Nemo debet esse judex propria cause). So far as the first rule is concerned, if the Judge himself or the Judges themselves say that a particular case or cases assigned to him/them say be taken out of his/their list, there should be no difficulty. So far as the second rule is concerned in which it is said that a counsel may bring to the notice of the court that a particular case or cases may not be heard by a particular Bench or a Judge of the court means to say only that the counsel would being a fact to the notice of the court and no more. He cannot be allowed to insist or ask this Court not to hear a case. It will be again for the Judge or the Judges hearing the case to decide whether they should say that the cases be listed before another Judge or Bench or not. Judges of the court including the Chief Justice are equals and exercise the same judicial power except such powers that are specifically assigned to the Chief Justice. There is no reason to concede a power in the Chief Justice to transfer a case from one Bench to another Bench of the Court or from one Judge to another Judge of the Court. Act of allocating business or portfolio or assigning case or cases is different from the act of recalling the case from the file of a particular Judge or a Bench of the court and from transferring a case from the file of a particular Judge or a Bench of the court and from transferring a case from the file of a particular Judge or a Bench of the court, to another Judge or a Bench of the court because any decision about it would partake the character of a judicial order.

(Emphasis added)

Jawahar Ram Gupta v. Hon'ble Chief Justice 1996 (27) ALR 557The Chief Justice is free to assign a case where he will, but transferring an already assigned case from one Judge to another, we reiterate with emphasis, is not an authority which the Supreme Court observed for itself was with it.

After April 13, 1996 when the Chief Justice had assigned this matter to this Court, the sanctity of the proceedings, as the Supreme Court has held, cannot be interfered with even by the legislature.

Activity outside the courtrooms in Court cases, and such Sunday residence orders of Chief Justices, could have disastrous consequences in the High Court's handling of matters, particularly those sensitive matters which many already try to avoid hearing.

This Court records with great humility, and concern, that what the Supreme Court could not do, the Hon'ble the Chief Justice was misled to do and at his residence, not in Court. Whatever be the degree of the in facie curiae contemptuous situation, it will be judged by the Division of the High Court concerned. The reservation also will be considered by that Division. Otherwise, what will be happen is that the record will remain within the portals of the court of Record in perpetuity as no Division will be able to enter judgment. On this the Supreme Court clearly reflected: "As for transfer from one Judge to another, there again is no original jurisdiction which we can exercise. It is not a fundamental right and so Article 32 has no application and there is no other law to which recourse can be had".

(Emphasis added)

The above extracts illustrate a well-established practice that once a case is assigned to a Bench and that Bench has taken seisin (assumed jurisdiction) of the matter and partly heard it, the Chief Justice cannot unilaterally withdraw it and reassign it to another Bench except under specific, judicially recognised circumstances. This practice is firmly rooted in the high constitutional value of judicial independence whereby a Bench enjoys the freedom and independence to adjudicate upon a lis it has taken cognisance of. When a Bench is seized of a case and has partly heard it, the matter becomes part of judicial proceedings, and the Bench hearing the case assumes exclusive jurisdiction over it. Any interference--whether through withdrawal or reassignment--without judicial justification undermines the principle of judicial independence.

15. The said practice imposes a significant limitation on the administrative powers of the Chief Justice. While the Chief Justice has the authority to regulate the formation of Benches and allocate cases as an administrative function, these powers do not extend to withdrawing or transferring a part-heard case from a Bench that has already assumed jurisdiction. Such withdrawal or reassignment is not merely an administrative act but a judicial one. Consequently, any such action must either stem from a judicial order passed by the Bench seized of the matter or be supported by express statutory authority if carried out by another court or authority.

16. The principles of judicial propriety and case continuity require that a Bench, once seized of a case, must see it through to its conclusion, barring exceptional circumstances. Arbitrary withdrawal or reassignment of a case after it has been partly heard sets a dangerous precedent, undermines the sanctity of judicial proceedings and erodes public confidence in the judiciary. Exceptional circumstances that may justify the reassignment of a case include instances where the Bench seized of the matter makes a judicial request for reassignment due to recusal, conflict of interest or other valid reasons. As the decision regarding the withdrawal or reassignment of a case partakes of the character of judicial process. Such decisions cannot rely solely on administrative discretion, as this would compromise the finality and integrity of judicial orders. These principles collectively affirm that the sanctity of judicial proceedings takes precedence over administrative powers, thereby safeguarding the impartiality and independence of the judiciary.

17. For almost similar reasons that create a bar on the power of assignment of cases concerning the withdrawal and reassignment of part-heard cases, this Court held in Human Rights Case No. 14959-K of 2018 (PLD 2019 SC 183) that a similar limitation also applies to the constitution of benches. It was held and observed in that case: The above Rule [of Order XI of the Supreme Court Rules 18980] provides for administrative powers of the Chief Justice to constitute benches. However, once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench. Any member of the bench may, however, recuse to hear a case for personal reasons or may not be available to sit on the bench due to prior commitments or due to illness. The bench may also be reconstituted if it is against the Rules and requires a three-member bench instead of two. In such eventualities the bench passes an order to place the matter before the Chief Justice to nominate a new bench. Therefore, once a bench has been constituted, cause list issued and the bench is assembled for hearing cases, the Chief Justice cannot reconstitute the bench, except in the manner discussed above.

7. In the absence of a recusal by a member of the Bench, any amount of disagreement amongst the members of the Bench, on an issue before them, cannot form a valid ground for reconstitution of the Bench. Any reconstitution of the Bench on this ground would impinge on the constitutional value of independence of judiciary. The construct of judicial system is pillared on the assumption that every judge besides being fair and impartial is fiercely independent and is free to uphold his judicial view. This judicial freedom is foundational to the concept of Rule of Law. Reconstitution of a bench while hearing a case, in the absence of any recusal from any member on the bench or due to any other reason described above, would amount to stifling the independent view of the judge.

Any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stands.

Public confidence is the most precious asset that this branch of the State has. It is also one of the most precious assets of the nation.

(Emphasis added)

While relying on the above observations in the case of Muhammad Imtiyaz,^[61] this Court reiterated that the arbitrary reconstitution of Benches undermines the integrity of the judicial system and may have serious repercussions. If Benches are changed arbitrarily without justifiable reasons, it creates doubts and raises concerns about the fairness of the system. The public may question the impartiality of a judicial process that appears arbitrary. To uphold the rule of law, transparency and fairness in the matters of the constitution of Benches and the assignment of cases is imperative to maintain the independence, integrity and prestige of this Court.

18. We may mention here that it was argued before us that the cases concerning the powers of the Chief Justice, decided prior to the promulgation of the Act, have become irrelevant following the establishment of the Bench Constitution Committee under Section 2 of the Act, which has been endorsed by the Full Court of the Supreme Court on the judicial side in the case of Raja Amer.^[62] We, however, are not persuaded by this argument for the simple reason that it was categorically held in Raja Amer that the powers of the Committee under Section 2 of the Act are the same as those previously exercised by the Chief Justice. The relevant observation is as follows: Both the powers of suo motu invoking original jurisdiction and constituting benches were earlier being exercised by one person, the Chief Justice; it is these administrative powers that have now been conferred on the Committee comprising three persons, i.e., the Chief Justice and the two most senior Judges - nothing more nothing less.^[63] Therefore, whatever was stated in the referred cases regarding the powers of the Chief Justice to assign or withdraw cases from Benches fully applies to the Committees as well.

19. In view of the settled jurisprudence of the subcontinent on the constitution of Benches and the assignment of cases discussed above, we answer question (i) in the negative. We hold that the Committees constituted under Sections 2 of the Act and 191A of the Constitution lack the authority to withdraw a case that has been partly heard, where cognisance has already been taken by a regular Bench, and transfer it to another Bench, unless the Bench itself refers the case to the Committees for its assignment to another Bench for some justifiable reason. Such partly heard cases may include those where serious questions of constitutional law concerning the jurisdiction of the regular Bench have been framed, some arguments on those questions have been heard and the hearing has been adjourned for further arguments.

(ii) Whether the said Committees can, by an administrative order, undo the effect of a judicial order, whereby next date of hearing a specific case has been fixed before a regular Bench to hear arguments on the jurisdiction of the regular Bench.

20. This question need not detain us long, as a similar issue was addressed and decided by a Full Court of this Court in the case of Malik Asad Ali.^[64] It was held in the said case that an administrative order passed by the Hon'ble Chief Justice (acting under restraint) passed in derogation of a judicial order would be without lawful authority and of no legal effect. In that case, the Chief Justice's administrative declaration, which sought to invalidate the convening of a Full Court under a judicial order of a Bench for hearing cases listed in Supplementary Cause List No. 405 of 1997, was declared illegal.

21. The above cited observations of a seven-member Bench of this Court in the contempt case against Syed Yousaf Raza Gillani are equally relevant. It was observed therein that "the executive authority may question a Court's decision through the judicial process provided for in the Constitution and the law but is not entitled to flout it because it believes it to be inconsistent with the law or the Constitution." This principle applies with equal force to the executive authority of the Chief Justice or the Committees, as the case may be.

22. Therefore, it can be held unequivocally that no administrative authority, including the Committees constituted under Section 2 of the Act and 191A of the Constitution, can, by an administrative order, undo the effect of a judicial order. Question (ii) is answered accordingly.

23. We may mention here that it was also argued before us that the Committees did not pass any administrative orders to undo the effect of the judicial orders. Instead, it was contended, the cases were transferred to the Constitutional Bench through the operation of law under Clause (4) of Article 191A, which states that all petitions, appeals or review applications against judgments rendered or orders passed, to which Clause (3) applies, pending or filed in the Supreme Court prior to the commencement of the Constitution (Twenty-sixth Amendment) Act 2024, stand transferred to the Constitutional Bench. However, we find this argument misconceived, and it is sufficiently answered by the formulation provided by Khawaja Haris Ahmad, the learned amicus curiae. For ease of reference, his formulation is again reproduced here: It is noteworthy that when, on 13.01.2025, the learned Bench took up the matter relating to its jurisdiction to entertain and decide the CPLAs (filed under Article 185(3) of the Constitution) fixed before it, this involved neither assuming jurisdiction over the merits of the CPLAs, nor decision of constitutionality of any law point involved in the CPLAs. Rather, in effect, it only took upon itself the task of ascertaining if Article 191A(3) could be so construed as to exclude the Bench's jurisdiction to hear the CPLAs. To do so, the learned Bench was dealing with the matter like any other case where question of jurisdiction is raised - i.e. (i) first looking at the wording of the provision itself to see if it per se excluded the Court's jurisdiction; and, (ii) if so, to see whether the provision of law relied upon for excluding the Court's jurisdiction constitutes valid law or not. Thus, in the instant case, the learned Bench would first examine the words of Article 191A(3) to ascertain if a plain reading of it excludes the Court's jurisdiction in the matter; and, if such exclusion is a necessary consequence, then the Court would proceed to ascertain the constitutional validity of Article 191A(3). Prima facie it appears that the aforesaid exercise in not covered by exclusionary provisions of Article 191A(3) of the Constitution.

As evident from the above, the three-member Bench that passed the order dated 13 January 2025 was not deliberating on the constitutionality of the law challenged in those cases but was addressing the jurisdictional question, which every court inherently has the power to adjudicate.

The Bench, which had previously referred such cases to the Constitutional Bench, was confronted with the principles governing a court's inherent power to decide jurisdictional questions. When the argument was prima facie supported by the referred precedents of the cases of Pir Sabir Shah, Fazlul Quader Chowdhry and Marbury, the Bench decided to adjudicate the jurisdictional matter after obtaining full assistance from the learned counsel for the parties, and the cases were adjourned to allow for further preparation and assistance on the jurisdictional issue.

24. In Pir Sabir Shah, the Court addressed the jurisdictional question of whether appeals filed before it under Section 8-B of the Political Parties Act, 1962, were competent and whether that provision was ultra vires the Constitution. Similarly, in Fazlul Quader Chowdhry, the Court dealt with the question of whether Clause (4) of Article 224 of the 1962 Constitution, which barred all courts from questioning the validity of constitutional amendments, was ultra vires the Constitution. The principle emerging from these cases is that if a dispute arises concerning a court's jurisdiction over a particular matter, the court has the power to hear and determine that dispute--even if its conclusion leads to the finding that it lacks jurisdiction. Moreover, in determining its jurisdiction, the court may examine the constitutionality of the law, including any constitutional provision, that confers or bars its jurisdiction. Based on this principle, the Bench that passed the order dated 13 January 2025 was acting within its jurisdiction. If, ultimately, it had determined that Article 191A validly excluded its jurisdiction, it would have transferred the cases to the Constitutional Bench in accordance with Clause (5) of Article 191A of the Constitution, and would not have proceeded to address the matter of the constitutionality of the law challenged in those cases.

25. For these reasons, we find that it was the administrative decisions of the Committees that illegally nullified the judicial orders and unlawfully deprived the regular Bench of its judicial power to decide the jurisdictional question raised before it. Such jurisdictional questions, as contended by Khawaja Haris Ahmad, do not fall within the ambit of Clauses (3) and (5) of Article 191A of the Constitution.

26. As both the above questions have been answered in the negative. We are sanguine that the office shall fix the main case i.e. CPLA No. 836-K of 2020, etc before the original three-member bench comprising Syed Mansoor Ali Shah, Ayesha A. Malik, and Irfan Saadat Khan, JJ. in the first week of February 2025.

Decision on the Explanation of the Alleged Contemner

27. Having answered the questions of law, we now turn to the validity of the explanation furnished by the alleged contemner in response to the show-cause notice. Under Section 17(3) of the Contempt of Court Ordinance 2003, we must determine whether the interests of justice require further action and whether a charge for contempt of court should be framed against him. As required by law, the alleged contemner was given an opportunity for a preliminary hearing, and we have duly considered his written reply, along with the documents filed in support thereof.

28. It has become evident from the record that in compliance with the court order dated 16 January 2025, the alleged contemner initiated a note on the same day--16 January 2025-- regarding the constitution of a Special Bench comprising the Judges mentioned in the said order.

However, the Committee constituted under Section 2 of the Act, by a majority comprising the Hon'ble Chief Justice and Hon'ble Justice Amin-ud-Din Khan, passed an order on 17 January 2025, withdrawing the cases from the regular Bench and directing that they be placed before the Committee constituted under Article 191A of the Constitution for fixation before the Constitutional Bench.

29. We find that the alleged contemner did what he could to comply with the court order. As stated in his written reply, he had no authority to constitute the Bench of Judges as mentioned in the court order. At most, he could inform the Competent Authority, which was done by him not only in a timely manner but also with a proposal for the constitution of the Special Bench comprising the Judges specified in the court order, for the fixation of cases before it as directed. The alleged contemner's failure to fix the case before the Bench specified in the court order, therefore, does not constitute a contumacious act on his part.

30. In a contempt appeal by the Registrar of the High Court of Sindh,^[65] a fourteen-member larger Bench of this Court drew a distinction between a case of contempt against a party to the case and a case of contempt against an officer of the Court, in the following words: A distinction has to be made between a case of contempt of Court based on defiance or violation of a judicial order in the nature of temporary injunction by a party whereby such party was restrained from acting in a particular manner but in spite of service of notice or having come to know of the passing of such order, acts in a manner to alter the position to his advantage so as to frustrate the temporary injunction and an act of mere non-submission of a report called for by the Court by an Officer of the Court. In the former case, the Court would take strict view and mere act of defiance of the judicial order would by itself justify raising of presumption that the doer of the act was guilty of contempt of Court unless he proves otherwise whereas in the latter case, it has to be determined on application of judicial mind as to whether the accused deliberately did not submit the report on account of having personal interest in any of the parties to cause damage to the other party in the case in which the report was called or had any personal interest which, if proved or established, would make the act of non-submission of the report mala fide. In the absence of any of these factors and element of contumacy, his conduct could not be held to have suffered from mala fides or contempt of Court. Mere non-compliance of an order, in the absence of contumacy, would not amount to contempt of Court.

Per Rana Bhagwandas, J. (Additional note)

It may be pertinent to observe further that every failure to comply with an order may not amount to be criminal contempt warranting action therefor. There may be cases where there are justifiable reasons or causes for non adherence of an order of a Court which would depend on the facts of each case. There may also be cases where non-compliance of the order was not wilful or deliberate. Likewise, there may be instances where compliance with an order of a Court may be beyond the scope of authority of a person to whom it is directed. Each-case, therefore, has to be examined in its proper perspective having regard to the facts and circumstances of a case.

(Emphasis added)

Upon examining the case of the present alleged contemner, the Additional Registrar (Judicial) of this Court, we find that he did not deliberately avoid the fixation of the cases before the Bench as directed in the court order. There is no evidence to suggest that he had any personal interest in the matter or had connived with any of the parties to the case, nor did he act with the intention of causing damage to any of the parties to the case. There is no indication of mala fide intent in his actions. In the absence of any such factors or elements of contumacy, his conduct cannot be considered contumacious, nor can it be said to have suffered from mala fides, requiring contempt proceedings against him. For these reasons, by accepting his explanation, the show-cause notice issued against him for contempt proceeding is discharged.

Contempt Proceedings Against the Members of the Committees

31. We have also deliberated on the question of whether, following the discharge of the show-cause notice against the alleged contemner, the Additional Registrar (Judicial), the matter should be considered concluded or whether it should proceed further against the members of the two Committees, where the first Committee unlawfully withdrew the part-heard cases from a Bench and transferred it for the consideration of the other Committee, through an administrative order by undoing the effect of a judicial order. While the second Committee, in total disregard of the judicial order passed by the regular Bench, simply in pursuance of the direction of the first Committee, went ahead and fixed the case before the Constitutional Bench on 27 January 2025. Both the Committees were not legally authorized to take administrative decisions dated 17 January 2025 in violation of the judicial order. In this background, it appears that the matter has to proceed further against the members of the two Committees. However, judicial propriety and decorum demand that the said question be considered and decided by the Full Court of the Supreme Court so that it is authoritatively decided once and for all. We note with advantage that the matter of contempt proceedings against the Registrar of a High Court^[66] was treated with such gravity that a larger bench of 14 Judges was convened to adjudicate it. Therefore, in our view, this issue is even more serious, warranting the collective and institutional deliberation of all Judges of this Court.

Consequently, we refer this matter to the Hon'ble Chief Justice for the convening of the Full Court to deliberate and decide on this important issue.

32. We may clarify here that we have not referred this matter to the Committee constituted under Section 2 of the Act, as its authority is limited to constituting benches of the Supreme Court. The Full Court of the Supreme Court, however, is constituted by the Constitution itself under Article 176. The distinction between the benches of a Court and the Full Court is well-established and constitutionally recognised in the provisions of Article 203J(2)(c) and (d) of the Constitution and the responsibility of convening the Full Court conventionally falls within the domain of the Chief Justice.

33. Before parting with this judgment, we find it necessary to acknowledge and express our appreciation for the invaluable assistance rendered to us by all the learned amici curiae, especially on such short notice.

Dated: 27 January 2025 Ayesha A. Malik, J.- I would not like to hear these cases in order to protect and preserve the sanctity of the original proceedings and the judicial order of 16.01.2025.

2. On 16.01.2025, these cases were fixed before a Bench of three^[67] wherein the question of a jurisdictional bar on the Bench hearing the cases, not being a Constitutional Bench under the Twenty-sixth Amendment to the Constitution^[68] was raised, for which the Court ordered for the reconstitution of the Bench by the Committee constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023 (Committee).^[69] The Committee did not reconstitute the Bench^[70] instead ordered to withdraw the cases from the Bench and place the matter before the Committee established under Article 191A(4) of the Constitution (Constitutional Bench Committee). The Constitutional Bench Committee in its meeting of 17.01.2025 fixed these cases for 27.01.2025. Both Committees discounted the order of the Court dated 16.01.2025 and proceeded with the issuance of administrative orders whereby the cases were withdrawn from the Bench hearing these cases and transferred and fixed before the Constitutional Bench. In the meantime, Criminal Original Petition No.1 of 2025 was initiated on 20.01.2025 on the ground of non-compliance of the judicial order dated 16.01.2025. Those proceedings have concluded and judgment was announced today.

3. The basic issue and the reason that I cannot hear these cases, is that I was a part of the Bench which issued the order of 16.01.2025, hence to preserve the sanctity of the judicial order and also to abide by the traditions of this Court where judicial orders are given the utmost respect and should not be disregarded through administrative orders.^[71] It goes without saying that judicial orders cannot be undone through administrative orders as they are authoritative pronouncements of the Court, which represents the authority of the Court and affirms the independence of the judiciary. If there is a disagreement with the order of the Court it has to be dealt with on the judicial side, through appropriate proceedings. By allowing an administrative order, that too from within the Court to negate judicial directives, the very sanctity of judicial authority and the independence of the judiciary is undermined.

4. As Judges, we must strictly adhere to the distinction between judicial orders and administrative orders and we must preserve and safeguard the sanctity of judicial orders. Most of all we must ensure that our orders are complied with and not overlooked, contravened or evaded by anyone.

1. Although the term 'Parliamentary Party' is not defined in the Constitution, in common parliamentary parlance it refers to the group consisting of all the members of a House who belong to a particular political party. See explanation (d) to Section 8-B of the erstwhile Political Parties Act 1962, which provided that 'Parliamentary Party' in relation to a member of a House belonging to political party, means the group consisting of all the members of the House for the time being of that political party.

^[2]63A. Disqualification on grounds of defection, etc. (1) If a member of a Parliamentary Party composed of a single political party in a House-

(a) resigns from membership of his political party or joins another Parliamentary Party; or

(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to-

(i) election of the Prime Minister or the Chief Minister; or

(ii) a vote of confidence or a vote of no-confidence; or

(iii) a Money Bill or a Constitution (Amendment) Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer and the Chief Election Commissioner and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

Explanation. --"Party Head" means any person, by whatever name called, declared as such by the Party. (2) A member of a House shall be deemed to be a member of a Parliamentary Party if he, having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.

(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.

(5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

3. This examination includes consideration of the defences raised by the member concerned, such as the non-existence of a direction by the Parliamentary Party, the failure to communicate such a direction to the member, or the direction being contrary to the member's highest duty to obey, preserve, protect and defend the Constitution, which necessarily encompasses its salient features or basic structure. (See Article 5 of the Constitution and Oath prescribed in the Third Schedule to the Constitution, for the members of the National Assembly and Senate under Article

65. See also Al-Jehad Trust v. Federation of Pakistan PLD 1997 SC 84 per Ajmal Mian, wherein his lordship observed: "I am unable to subscribe to the above broad proposition of law to the effect that the President is bound to act, on the Prime Minister's advice even when it is in violation of the certain provisions of the Constitution and the judgment of the Apex Court. I am inclined to hold that if there is no ambiguity as to the law declared by the Apex Court, the President cannot in breach of such law act upon the advice of the Prime Minister as it will not only be violative of the judgment of the Apex Court but would also be in breach of the oath of office.")

4. Bahadur Khan Bangulzai v. Attaullah Khan Mengal 1999 SCMR 1921 [7MB] upholding Attaullah Khan Mengal v. Chief Election Commissioner 1999 CLC 1460 [Quetta-FB].

5. Giyan Chand v. Chief Election Commissioner 2000 MLD 709 [Pesh-DB].

6. Queen v. Commissioner of Income Tax (1888) 21 QB 313 per Lord Esher, M.R.; Keramat Ali v.

Muhammad Yunus PLD 1963 SC 191; Jamil Asghar v. The Improvement Trust PLD 1965 SC 698; Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236; Mehr Dad v. Settlement and Rehabilitation Commissioner PLD 1974 SC 193; Hamid Husain v. Govt. of West Pakistan 1974 SCMR 356; Hamida Begum v. Murad Begum PLD 1975 SC 624; Muhammad Hafeez v. Additional Commissioner 1981 SCMR 1171; Rehmatullah v. Ali Muhammad 1983 SCMR 1064; Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963; Aminullah v. Qalandar Khan 1993 SCMR 2307; Shah Muhammad v. Abdul Rauf 1998 SCMR 1363 and Umar Ikram-Ul-Haque v. Shahida Hasnain 2016 SCMR 2186. For Indian jurisprudence, see S.B.P. and Co. v. Patel Engineering Ltd. AIR 2006 SC 450 (Many previous cases are also cited in it).

7. Queen v. Commissioner of Income Tax (1888) 21 QB 313. His Lordship observed: "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."

8. Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Jamil Asghar v. The Improvement Trust PLD 1965 SC 698. In the last-mentioned case, it was held: "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. ... Of course although the officer has been granted no jurisdiction to determine, he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act, on the ground that those circumstances do not in fact exist. ... So far as special judicial tribunals are concerned, they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. If an election tribunal is empowered to hear election petitions in respect of particular elections it will always have to determine whether the petition lodged before it relates to such an election, but if as a matter of fact that petition does not relate to such an election any proceedings taken by the tribunal in that petition will be void in spite of a finding by the tribunal to the contrary. It is possible, of course, that a special tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words."

9. Jagdish Prasad v. Ganga Prasad AIR 1959 SC 492 and Addanki Tiruvenkata v. State of Andhra Pradesh AIR 1964 SC 807.

10. Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963. In this case, it was observed: "Where, however, the objection relates to the existence or non-existence of special relationship between the parties before the Tribunal and not to the Tribunal itself, an inquiry into the jurisdictional fact must ordinarily take place before that special tribunal itself. Like any other finding, the finding on jurisdictional fact, the one recorded by Special Tribunal will not be conclusive but it has to be recorded on proper material by the Tribunal so as to enable its judicial review."

11. Article 218 of the Constitution.

12. Article 213 of the Constitution.

13. Article 215 of the Constitution.

14. Article 216 of the Constitution.

15. Imran Khan v. Election Commission of Pakistan (2012 SCMR 448).

16. Worker's Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) (Worker's Party Pakistan).

17. Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 SC 413).

18. Zulfiqar Ali Bhatti v. Election Commission of Pakistan (2024 SCMR 997) (Zulfiqar Ali Bhatti)

^[19]222. Subject to the Constitution, Majlis-e-Shoora (Parliament) may by law provide for:-

(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election Commission including delimitation of constituencies of local governments;

(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions the decision of doubts and disputes arising in connection with elections;

(e) matters relating to corrupt practices and other offences in connection with elections; and

(f) all other matters necessary for the due constitution of the two Houses, the Provincial Assemblies and local governments; but no such law shall have the effect of taking away or abridging any of the powers of the Commissioner or the Election Commission under this Part.

20. Tahir Sadiq v. Faisal Ali (2024 SCMR 775)

21. Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2024 Supreme Court 1).

22. Muhammad Sibtain Khan v. Election Commission of Pakistan (2023 SCMR 2165)

(Muhammad Sibtain Khan).

23. Imran Ahmed Khan Niazi v. The State (2024 SCMR 1284).

24. Notification No.F.2(5)/2024-Cord(1), Dated 15.02.2024, issued by the ECP.

25. Sunni Ittehad Council v. Election Commission of Pakistan (PLD 2024 SC 642) (SIC).

26. SIC (ibid).

27. Worker's Party Pakistan (ibid).

28. Article 218 of the Constitution.

29. Article 213 of the Constitution.

30. Article 215 of the Constitution.

31. Article 216 of the Constitution.

32. Imran Khan v. Election Commission of Pakistan (2012 SCMR 448).

33. Worker's Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) (Worker's Party Pakistan).

34. Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 SC 413).

35. Zulfiqar Ali Bhatti v. Election Commission of Pakistan (2024 SCMR 997) (Zulfiqar Ali Bhatti)

^[36]222. Subject to the Constitution, Majlis-e-Shoora (Parliament) may by law provide for:-

(a) the allocation of seats in the National Assembly as required by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election Commission including delimitation of constituencies of local governments;

(c) the preparation of electoral rolls, the requirements as to residence in a constituency, the determination of objections pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions the decision of doubts and disputes arising in connection with elections;

(e) matters relating to corrupt practices and other offences in connection with elections; and

37. Tahir Sadiq v. Faisal Ali (2024 SCMR 775)

38. Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2024 Supreme Court 1).

39. Muhammad Sibtain Khan v. Election Commission of Pakistan (2023 SCMR 2165)

(Muhammad Sibtain Khan).

40. Imran Ahmed Khan Niazi v. The State (2024 SCMR 1284).

41. Notification No.F.2(5)/2024-Cord(1), Dated 15.02.2024, issued by the ECP.

42. Sunni Ittehad Council v. Election Commission of Pakistan (PLD 2024 SC 642) (SIC).

43. SIC (ibid).

44. Worker's Party Pakistan (ibid).

45. Although the term Parliamentary Party is not defined in the Constitution, in common parliamentary parlance it refers to the group consisting of all the members of a House who belong to a particular political party. See explanation (d) to Section 8-B of the erstwhile Political Parties Act 1962, which provided that Parliamentary Party in relation to a member of a House belonging to political party, means the group consisting of all the members of the House for the time being of that political party.

^[46]63A. Disqualification on grounds of defection, etc. (1) If a member of a Parliamentary Party composed of a single political party in a House-

(a) resigns from membership of his political party or joins another Parliamentary Party; or

(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to-

(i) election of the Prime Minister or the Chief Minister; or

(ii) a vote of confidence or a vote of no-confidence; or

Explanation. --"Party Head" means any person, by whatever name called, declared as such by the Party.

(2) A member of a House shall be deemed to be a member of a Parliamentary Party if he, having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant.

47. This examination includes consideration of the defences raised by the member concerned, such as the non-existence of a direction by the Parliamentary Party, the failure to communicate such a direction to the member, or the direction being contrary to the member's highest duty to obey, preserve, protect and defend the Constitution, which necessarily encompasses its salient features or basic structure. (See Article 5 of the Constitution and Oath prescribed in the Third Schedule to the Constitution, for the members of the National Assembly and Senate under Article

48. Bahadur Khan Bangulzai v. Attaullah Khan Mengal 1999 SCMR 1921 [7MB] upholding Attaullah Khan Mengal v. Chief Election Commissioner 1999 CLC 1460 [Quetta-FB].

49. Giyan Chand v. Chief Election Commissioner 2000 MLD 709 [Pesh-DB].

50. Queen v. Commissioner of Income Tax (1888) 21 QB 313 per Lord Esher, M.R.; Keramat Ali v.

51. Queen v. Commissioner of Income Tax (1888) 21 QB 313. His Lordship observed: "When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may entrust the tribunal or body with a jurisdiction which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction."

52. Keramat Ali v. Muhammad Yunus PLD 1963 SC 191; Jamil Asghar v. The Improvement Trust PLD 1965 SC 698. In the last-mentioned case, it was held: "A purely administrative officer who is empowered to pass an order if certain circumstances exist has no jurisdiction to determine those circumstances and the objective existence of those circumstances is an essential condition of the validity of his order. ... Of course although the officer has been granted no jurisdiction to determine, he will have to ascertain whether the requisite circumstances exist for otherwise he cannot pass the order, but his conclusion as to the existence of those circumstances binds nobody and it is open to any person affected to challenge his act, on the ground that those circumstances do not in fact exist. ... So far as special judicial tribunals are concerned, they are given jurisdiction to determine certain facts but they are not judges of the facts which are the foundation of their jurisdiction nor can they define the limits of their own jurisdiction. If an election tribunal is empowered to hear election petitions in respect of particular elections it will always have to determine whether the petition lodged before it relates to such an election, but if as a matter of fact that petition does not relate to such an election any proceedings taken by the tribunal in that petition will be void in spite of a finding by the tribunal to the contrary. It is possible, of course, that a special tribunal may be made the judge of its own jurisdiction, but this would be a very exceptional provision and one which should be made by altogether clear words."

53. Jagdish Prasad v. Ganga Prasad AIR 1959 SC 492 and Addanki Tiruvenkata v. State of Andhra Pradesh AIR 1964 SC 807.

54. Ehsanul Haq Kiani v. Allied Bank 1984 SCMR 963. In this case, it was observed: "Where, however, the objection relates to the existence or non-existence of special relationship between the parties before the Tribunal and not to the Tribunal itself, an inquiry into the jurisdictional fact must ordinarily take place before that special tribunal itself. Like any other finding, the finding on jurisdictional fact, the one recorded by Special Tribunal will not be conclusive but it has to be recorded on proper material by the Tribunal so as to enable its judicial review."

55. Pir Sabir Shah v. Shad Muhammad Khan PLD 1995 SC 66.

56. Fazlul Quader Chowdhry v. Abdul Haque PLD 1963 SC 486.

57. Marbury v. Madison 5 US 137 [1803].

58. Contempt proceedings against Syed Yousaf Raza Gillani PLD 2012 SC 553.

59. The decision taken in this case was later implicitly affirmed by the Supreme Court, in an appeal arising out of contempt proceedings in M.Y. Shareef v. Hon'ble Judges of The High Court of Nagpur AIR 1955 SC 19.

60. This opinion of Division Bench was approved by the Full Bench in M. Ranka v. Hon'ble Chief Justice of Tamilnadu High Court, Madars (1994) 2 L.W. 135.

61. Muhammad Imtiyaz v. Muhammad Naeem PLD 2023 SC 306.

62. Raja Amer v. Federation of Pakistan PLJ 2024 SC 114 (2024 SCP 91).

63. Ibid, per Syed Mansoor Ali Shah, J., para 30 (Majority Judgment).

64. Malik Asad Ali v. Federation of Pakistan 1998 SCMR 130 and PLD 1998 S.C. 161.

65. In re: Muhammad Sadiq Leghari, Registrar High Court of Sindh PLD 2002 SC 1033.

66. In re: Muhammad Sadiq Leghari, Registrar High Court of Sindh PLD 2002 SC 1033.

67. The Bench comprised of Syed Mansoor Ali Shah, J., Ayesha A. Malik, J., and Aqeel Ahmed Abbasi, J.

68. The Constitution of the Islamic Republic of Pakistan, 1973 (Constitution).

69. The order of 16.01.2025 was made as Justice Aqeel Ahmed Abbasi could not hear the cases, given he was one of the two Judges who had heard the cases and delivered the impugned judgment before the Court.

70. By a majority of 2 to 1.

71. Asad Ali v. Federation of Pakistan (PLD 1998 SC 161 and 1998 SCMR 130) and Human Rights Case No.14959-K of 2018 (PLD 2019 SC 183).

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