SYED ARSHAD ALI, J.- Pakistan Muslim League (N) ("PML (N)"), through its President Khyber Pakhtunkhwa has filed the instant constitutional petition praying that: "It is therefore prayed that on acceptance of this writ petition this Hon'ble Court may:- a. Declare that actions of Elections Commission of Pakistan whereby the total seats won/secured by the petitioner political party were reduced from seven (7) to six (6), thus, depriving it from seats reserved for women and non-muslims in the province of Khyber Pakhtunkhwa as illegal, unconstitutional and without lawful authority. b. Set aside the notifications no.F. 6(7)/2024- Cord dated 4th March, 2024 issued in respect of seats reserved for women in the Provincial Assembly of KPK, impugned notification dated 26th March 2024 and impugned notification no. F.5(1)/2024-Cord dated 2nd July 2025 issued by Election Commission of Pakistan as illegal, unlawful, against the law and not based on proper calculation/allocation of reserved seats for women and non-muslims in the Provincial Assembly of KPK Direct the Respondent no. 1 (Election Commission of Pakistan) to properly and as per law calculate and allocate seats reserved for women & non-muslims to the petitioner party by increasing its number as per law. c. Declare the notifications of Respondent no.4 to 6 as returned candidate on women and nonmuslims (minority) seat as illegal, unlawful, void ab-initio. d. Grant any other relief that this honourable Court deems fit and appropriate in the facts and circumstances of the case."
FACTS OF THE MATTER
2. Brief but relevant facts of the case are that General Elections 2024 for the National Assembly and the Provincial Assemblies were held on 08.02.2024. Since the present controversy pertains to the total number of general seats secured by PML(N) in the Provincial Assembly of Khyber Pakhtunkhwa for the purpose of allocation of reserved seats, our findings shall remain confined to the relevant notification issued by the Election Commission of Pakistan ("ECP") concerning the returned candidates from PML(N) in the said province. i. On 13th February 2024, the ECP, in exercise of its powers under Section 98 of the Election Act, 2017 ("Act of 2017"), issued a notification declaring two candidates of PML(N) from PK-28 and PK-30 as returned candidates to the Provincial Assembly of Khyber Pakhtunkhwa. ii. On 18th February 2024, the ECP under Section 98(1) of the Act of 2017, issued a notification declaring 23 candidates as returned to the Provincial Assembly of Khyber Pakhtunkhwa. Among them was Hisham Inam Ullah Khan, who had won the general seat from PK-106 (Lakki Marwat-II) as an independent candidate. On the same date, he submitted an unconditional request to join PML(N), addressed to the party's President in Lahore. The request was accepted on 19th February 2024 and subsequently notified by the ECP. iii. On 20th February 2024, the ECP issued another notification declaring Sardar Shahjehan Yousaf of PML(N) as the returned candidate from PK-40 (Mansehra-V) to the Provincial Assembly of Khyber Pakhtunkhwa. iv. On 22nd February 2024, the ECP, under Section 98 of the Act of 2017, issued a notification declaring 10 candidates as returned from various provincial constituencies. As per the said notification, Malik Tariq Awan was declared as the returned candidate from PK-82 (Peshawar-XI) as an independent candidate. On 23rd February 2024, he expressed his unconditional intention to join PML(N) by submitting a written request to the President of PML(N), Lahore. The request was accepted on the same day by Muhammad Shahbaz Sharif, President PML(N), and the decision was formally communicated to the ECP through a letter dated 23.02.2024..
RESERVED SEATS FOR WOMEN
3. In exercise of its constitutional mandate, the ECP on 22.02.2024, pursuant to Article 106 of the Constitution of the Islamic Republic of Pakistan ("Constitution") read with Section 104 of the Act of 2017, published the notification of five returned candidates against seats reserved for women in the Provincial Assembly of Khyber Pakhtunkhwa. As per the said notification, two seats were allocated to Jamiat Ulama e Islam Pakistan ("JUI"), two to Pakistan Muslim League (Nawaz) ("PML(N)"), and one to Pakistan Peoples Party Parliamentarians ("PPPP"). These allocations were made on the basis of the number of general seats secured by each political party, JUI having secured seven seats, PPPP four, and PML(N) five, with one independent member joining PML(N), raising its total to six.
Additionally, Awami National Party ("ANP") and Pakistan Tehreek e Insaf Parliamentarian ("PTIP") had each secured one general seat.
4. On 4th March 2024, the ECP issued another notification under Article 106 of the Constitution read with Section 104 of the Act of 2017, whereby twenty women were notified as returned candidates against seats reserved for women in the Provincial Assembly. According to the said allocations, JUI secured ten seats, PPPP six seats, PMLN eight seats, ANP one seat, and PTIP one seat, making a total of twenty six seats. It is important to note that the reserved seats allocated to PMLN were calculated on the basis of six general seats, excluding the seat won by Malik Tariq Awan.
RESERVED SEATS FOR NON-MUSLIMS
5. Simultaneously, the ECP, on 04.03.2024 issued a notification regarding the allocation and declaration of returned candidates against seats reserved for non-Muslims in the Provincial Assembly of Khyber Pakhtunkhwa. The details of the said allocation are as follows: S.No. Name of returned Candidates Party Affiliation 1 Askar Pervaiz JUI 2 Suresh Kumar PML (N)
3 Beari Lal PPPP
6. Subsequently, through another notification dated 26.03.2024, Gurpal Singh, belonging to JUL was notified as the fourth returned candidate against a seat reserved for non-Muslims.
7. As PML(N) was dissatisfied with the allocation of reserved seats, particularly the exclusion of one general seat secured by Malik Tariq Awan from the final count, it filed Constitutional Petition No. 1739-P of 2024 before this Court. However, since the issue concerning the allocation of reserved seats had already been raised initially by Sunni Ittehad Council ("SIC") before this Court and was later agitated before the Supreme Court of Pakistan, PML(N) sought permission to withdraw its petition with liberty to file a fresh one if necessary. The request was allowed by this Court on 03.10.2024.
8. The matter relating to the allocation of reserved seats to SIC was finally adjudicated by the Apex Court through its judgment dated 27.06.2025, whereby SIC's claim to reserved seats was denied and its request for allocation of general seats was also dismissed.
9. Pursuant to the judgment of the Apex Court, the ECP issued a notification dated 02.07.2025, publishing the revised list of reserved seats for each province. The petitioner, being aggrieved by the said allocation, has filed the instant constitutional petition.
10. Mr Amir Javed, Advocate, learned counsel for the petitioner, while referring to the facts of the case and the provisions of Article 106 of the Constitution, Section 104 of the Election Act 2017, and Rule 92 of the Election Rules 2017 ("Rules of 2017"), argued that Malik Tariq Awan was notified as a returned candidate on 22.02.2024 and, within three days, formally joined PML(N). Therefore, his seat ought to have been counted in favour of PML(N) for the purpose of allocation of reserved seats.
11. In response, the ECP contended that the cut-off date for the allocation of reserved seats was 22.02.2024, and since Malik Tariq Awan was notified on that date as an independent candidate, his seat could not be credited to PML(N) for the purposes of allocation.
12. The learned counsels appearing on behalf of Suresh Kumar have raised a preliminary objection to the maintainability of the petition on two grounds: first, that the present matter pertains to party- based allocations, and since JUI, being a necessary party, has not been impleaded as a respondent, the petition is not maintainable; and second, that the petition is barred by the principles embodied in Order II Rule 2 of the Code of Civil Procedure, 1908.
13. We have anxiously heard the arguments advanced by the learned counsel for the parties, and perused the record with their valuable assistance.
14. The central question for determination before this Court is whether the cut-off date fixed by the Election Commission of Pakistan, i.e. 22.02.2024, as the benchmark for determining the total number of general seats won by a political party for the purposes of allocation and election to reserved seats, is legally sustainable. More specifically, whether the exclusion of one general seat from Khyber Pakhtunkhwa, won by Malik Tariq Awan as an independent candidate, who subsequently joined PML(N) within the prescribed statutory period of three days, was lawful and justified. In order to address this issue, it is imperative to examine the constitutional, statutory, and regulatory framework governing the allocation of reserved seats for women and non-Muslims under the Constitution of Pakistan, the Act of 2017, and the Rules of 2017.
15. Article 106 of the Constitution provides that the Provincial Assembly of Khyber Pakhtunkhwa shall comprise 115 general seats, 26 seats reserved for women, and 4 seats reserved for non-Muslims, making a total of 145 seats. Sub-article (3)(b) of Article 106 further stipulates that each Province shall serve as a single constituency for all seats reserved for women and non-Muslims, which shall be allocated to political parties in accordance with the law through the system of proportional representation. The proviso to Article 106 holds particular significance in the context of the present case and is, therefore, reproduced below: Provided that for the purpose of this sub-clause, the total number of general seats won by a political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates.
16. The Act of 2017, inter alia, provides a comprehensive framework governing the delimitation of constituencies, conduct of elections, and resolution of election-related disputes. Section 98 of the Act specifically stipulates that upon receipt of the final consolidated results from the respective Returning Officers, the Commission shall, within fourteen days of the polling date, publish in the official Gazette the names of the contesting candidates who have secured the highest number of votes and are thereby declared as returned candidates.
17. Chapter VI of the Act of 2017, governs the election to reserved seats in an Assembly. Section 104 of the Act provides that, for the purposes of election to seats reserved for women and non-Muslims, each political party contesting the election shall, within the time prescribed by the Commission for submission of nomination papers, submit to the Commission a separate list of its candidates, arranged in order of priority, for the reserved seats. It is further mandated that once submitted, such list shall remain immutable; no change in the order of priority, nor any addition or omission of names, shall be permissible after the expiry of the deadline for submission of nomination papers.
18. Similarly, Chapter VI of the Rules of 2017, deals with the procedure for election to reserved seats in an Assembly. Rule 92 therein provides that the election to seats reserved for women and non- Muslims in the National Assembly and Provincial Assemblies shall be conducted on the basis of proportional representation through political parties' lists of candidates, in accordance with the provisions of the Rules and the Act of 2017.
19. Furthermore, sub-rules (3) and (4) of Rule 92 provide that members to fill seats reserved for women and non-Muslims shall be elected through the system of proportional representation based on political parties' priority lists, determined in accordance with the total number of general seats secured by each political party in the Provincial Assembly. Sub-rule (6) of Rule 92 is particularly pertinent to the issue at hand; therefore, for ease of reference, it is reproduced below:
(6) For the purpose of this rule, the expression "total number of general seats won by political party shall include the independent returned candidate or candidates who may duly join such political party within three days of the publication in the official Gazette of the names of the returned candidates: Provided that if the independent candidate applies to the leader of a political party for joining his party then the leader of that political party will forthwith inform the Commission of joining of such candidate through a letter to be delivered to the Commission along with consent of that candidate duly attested by a Notary appointed under the Notaries Ordinance, 1961 (XIX of 1961) or an Oath Commissioner appointed under the Oaths Act, 1873 (X of 1873) or a Government servant in basic pay scale 17 and above: Provided that the consent of the independent candidate so delivered to the Commission shall, in no circumstances, be open to recall or cancellation.
20. To sum up and conclude the scheme governing the election and allocation of reserved seats to political parties that have secured general seats in the National or Provincial Assemblies, it is evident that such reserved seats are allocated to political parties in proportion to the general seats won, following the declaration of final results by ECP under Section 98 of the Act of 2017.
Furthermore, in view of the proviso to Article 106 of the Constitution and sub-rule (6) of Rule 92 of the Rules of 2017, any independent candidate who has won a general seat and whose name has been notified as such under Section 98, but joins a political party within three days of such notification, shall be counted towards the credit of that political party for the purpose of allocation of reserved seats.
21. The General Elections 2024 for the National and Provincial Assemblies were held on 08.02.2024; however, the final notifications under Section 98 of the Act of 2017, declaring returned candidates, were admittedly issued in a piecemeal manner. The first such notification on record was issued on 13.02.2024, while the last relevant notification was issued on 22.02.2024, wherein Malik Tariq Awan was notified as a returned candidate from his constituency as an independent. In terms of the proviso to Article 106 of the Constitution read with Rule 92 of the Rules of 2017, Malik Tariq Awan had a constitutional and legal right to join a political party within three days of such notification. He duly exercised this right and joined PML(N) within the stipulated period.
22. When queried about the rationale for fixing 22.02.2024 as the cut-off date for determining the quota and allocation of reserved seats, Mr. Muhammad Arshad, Special Secretary (Law), ECP, submitted that the said date was selected in view of Article 91(2) of the Constitution, which mandates that the National Assembly shall convene on the twenty-first day following the general election, unless summoned earlier by the President. He stated that the Election Commission, therefore, deemed it appropriate to finalize the allocation of reserved seats by that date. With due respect, this Court is unable to accept the explanation as either legally sound or logically persuasive. Nowhere in the Constitution does it stipulate that the process of allocation of reserved seats must be concluded prior to the convening of the Assembly. Even if such an inference were to be drawn, the twenty-one-day period postelection would culminate on 01.03.2024, not 22.02.2024.
Thus, the selection of 22.02.2024 as a determinative cut off date appears to be arbitrary and not rooted in any express constitutional or statutory mandate.
23. The record unmistakably demonstrates that even the ECP itself proceeded to allocate reserved seats in a staggered manner. The first notification for the allocation of seats reserved for women was issued on 22.02.2024, within the purported cut-off date, whereby only five seats were filled.
However, the remaining seats were subsequently notified on 04.03.2024. Likewise, the allocation of seats reserved for non-Muslims was notified not only on 04.03.2024 but also as late as 26.03.2024.
These facts undeniably establish that the process of election and allocation of reserved seats extended well beyond the cut-off date unilaterally fixed by the ECP. Furthermore, it is an admitted position that on the date when the allocations of reserved seats for women were finalized, PML(N) had seven general seats to its credit, having secured five on its electoral symbol and having been joined subsequently by two successful independent candidates, namely Hisham Inam Ullah Khan and Malik Tariq Awan. Notably, JUI also stood at seven general seats at the time.
24. The record concerning the election of Malik Tariq Awan from PK-82 leaves no room for ambiguity. He contested the General Elections 2024 held on 8th February 2024 and was duly notified as a returned candidate under Section 98 of the Act of 2017, on 22.02.2024. Exercising his constitutional right, he formally joined PML(N) the very next day well within the three-day window prescribed under the proviso to Article 106 of the Constitution as well as sub-rule (6) of Rule 92 of the Rules of 2017. Accordingly, by the time ECP proceeded to allocate reserved seats for women and non-Muslims on 04.03.2024, PML(N) had a total of seven general seats to its credit.
25. If the assertion of the ECP regarding the imposition of a cut-off date of 22.02.2024 is accepted, despite the absence of any legal or rational foundation, it would not only be inconsistent with the statutory and constitutional scheme governing the allocation of reserved seats for women and non-Muslims, but would also render nugatory the express mandate of the proviso to Article 106 of the Constitution and sub-rule (6) of Rule 92 of the Rules of 2017. It is by now well-established that the Constitution is a living and evolving document; its provisions must be interpreted dynamically and purposively so as to give effect to the constitutional intent. An interpretation that renders any part of the Constitution otiose or redundant cannot be presumed to have been the intention of its framers. Aam Lot Itehad and another vs. The Election Commission of Pakistan and others (PLD 2022 SC 39) and Suo Motu Case No.8 of 2018 and Civil Misc. Application No.649-L of 2018 (PLD 2019 SC 201).
26. In the present case, Malik Tariq Awan was notified as a returned candidate on 22.02.2024, and on the same day, ECP proceeded with a partial allocation of reserved seats for women, wherein five seats were distributed among political parties. Notably, Malik Tariq Awan joined the PML(N) within the constitutionally mandated period of three days. The undue haste exhibited by the ECP in proceeding with the allocation of reserved seats, prior to the final notification of all returned candidates from the General Elections held on 08.02.2024, raises serious concerns. It remains unexplained why the ECP opted to allocate reserved seats for women before completing the process of notifying all elected members, particularly when such premature action risked undermining the proportional representation scheme envisaged by Article 106 of the Constitution and Section 104 of the Act of 2017.
27. Similarly, we also find no cogent justification for the exclusion of Malik Tariq Awan's membership from the subsequent election and allocation process for reserved seats for women and non- Muslims conducted on 04.03.2024, particularly when, by that date, he stood as a duly affiliated member of the PML(N) in the Provincial Assembly in terms of Article 106 of the Constitution and Rule 92(6) of the Rules of 2017. It is an admitted position that the lists of candidates for reserved seats are submitted by political parties prior to the day of General Elections. Under the constitutional and statutory scheme governing such elections, the entire province constitutes a single constituency for the purpose of allocating reserved seats for women and non-Muslims. Furthermore, Section 98 of the Act of 2017, obliges the Election Commission to publish the final consolidated results within fourteen days of the polling date. Once an independent candidate is notified under Section 98, the Constitution grants such candidate a three-day window to join a political party. Hence, prescribing an arbitrary cut-off date prior to the completion of this constitutionally recognized process is not grounded in any statutory provision or principle of law.
28. The only legally relevant date for determining a party's strength for the purpose of allocation of reserved seats is the date on which such allocation or election actually takes place. Therefore, any independent candidate who has joined a political party within the prescribed time prior to that date must be counted towards the total number of general seats held by that party. A cut-off date fixed earlier than this point of reference not only lacks legal foundation, but also disrupts the proportional representation framework laid down in the Constitution and the Act of 2017. Such administrative action by the ECP is, therefore, contrary to the law and cannot be sustained.
28. These are the reasons for our short order of even date, which was announced in open Court and is hereby reproduced below: "For detailed reasons to be recorded later, subject to amplification or elucidation as may be deemed appropriate, the instant petition is partially allowed, and we hold and declare that: i. The cut-off-date provided by the Election Commission of Pakistan as 22.02.2024 for the election/allocation of reserved seats for women and non-Muslims in the Provincial Assembly of Khyber Pakhtunkhwa is illegal and contrary to the mandate of Article 106 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"), sections 18 and 104 of the Elections Act, 2017 ("Act, 2017") and Rule 92 of the Elections Rules, 2017 ("Rules, 2017").
For the Election of reserved seats for women as well as for non-Muslim as stipulated in Article 106 of the Constitution read with sections 18 and 104 of the Act, 2017 and Rule 92 of the Rules, 2017, the total number of seats won by political parties, including the independent candidates, who had joined the said party(s) shall be the electoral college for the purpose of elections against the reserved seats as on the day of elections/allocation of reserved seats of women and non-Muslims in the Provincial Assembly. iii. As a consequence of the above findings, the Notification bearing No. F.6 (7)2024-Cord dated 04.03.2024, issued by the Election Commission of Pakistan, notifying twenty (20) women against the reserved seats for Provincial Assembly of the Khyber Pakhtunkhwa, be modified accordingly.
Similarly, the Notification bearing No. F.5 (4) of 2024-Cord, dated 26.03.2024, notifying Mr. Gorbal Singh, as a returned candidate against the reserved seat for non-Muslim, is also set aside. iv. The Election Commission of Pakistan shall accordingly re-allocate reserved seats for women as well as non-Muslims in accordance with law and directions stated above within a period of ten days but after hearing all the political parties or their representatives and the contesting candidates. Till the decision of the Election Commission of Pakistan, the oath shall not be administered to respondents No. 4 & 5."