Stereo HCJ DA 38

JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Writ Petition No.20507 of 2022

Tariq Iqbal V/S Election Commission of Pakistan
and others

JUDGMENT

Date of hearing 18.04.2022 and 28.04.2022

Petitioner(s) by Mr. Mubeen Uddin Qazi, ASC with Ch.
Tahir Mahmood and Ahmad Sardar Khan,
Advocates in this petition and
W.P.No.24862 of 2022.
Syed Tassadaq Mustafa Naqvi and Syed
Tassadaq Murtaza Naqvi, Advocates in
W.P.No.26439 of 2022.
Mr. Zohaib Ali Chishti, Advocate in
W.P.No.24200 of 2022.
M/s Sardar Akbar Ali Dogar and Sardar
Daud Aslam Dogar, Advocates in
W.P.No.24654 of 2022.
Rana Nadeem Haider, Advocate in
W.P.No.26801 of 2022.
Mr. Mudassir Abbas Maghiana, Advocate
in W.P.No.26163 of 2022.
M/s Khawar Mehmood Khatana and Kiwan
Hassan Khatana, Advocates in
W.P.No.25192 of 2022.
Rana M. Arshad Khan, Advocate in
W.P.No.25337 of 2022.
Mr. Sajjad Ahmed Malik, Advocate in
W.P.No.24286 of 2022.
Rai Usman Ahmad, Advocate in
W.P.No.24434 of 2022.
Mian Arshad Ali Mahar, Advocate in
W.P.No.25166 of 2022.
Mr. Muhammad Azam Zafar, Advocate in
W.P.No.24582 of 2022.
Mr. Muhammad Tariq Basheer Awan,
Advocate in W.P.No.24886 of 2022.
M/s Muhammad Ehsan Bhatti and
Muhammad Azeem Altaf Bajwa,
Writ Petition No.20507 of 2022 2

Advocates in W.P.No.25287 of 2022.

M/s Muhammad Ehsan Bhatti and
Muhammad Azeem Altaf Bajwa,
Advocates in W.P.No.25288 of 2022.
Rana Abdul Sattar Khan, Advocate in
W.P.No.24945 of 2022.
M/s Muhammad Ehsan Bhatti and
Muhammad Azeem Altaf Bajwa,
Advocates in W.P.No.25296 of 2022.
M/s Ch. Rab Nawaz, Muhammad Athar
Aftab and Qasim Zia Ranjha, Advocates in
W.P.No.24560 of 2022.
M/s Muhammad Ehsan Bhatti and
Muhammad Azeem Altaf Bajwa,
Advocates in W.P.No.25340 of 2022.
M/s Muhammad Ehsan Bhatti and
Muhammad Azeem Altaf Bajwa,
Advocates in W.P.No.25374 of 2022.
M/s M. Javaid Iqbal Qureshi and Waqas
Arfaq Sandhu, Advocates in
W.P.No.25035 of 2022.
Rai Wali Muhammad Kharal, Advocate in
W.P.No.25308 of 2022.
Mr. M. Shabir Hussain, Advocate in
W.P.No.24647 of 2022.
Mian Javaid Zafar, Advocate in
W.P.No.25090 of 2022.
Mian Arshad Ali Mahaar, Advocate in
W.P.No.25175 of 2022.
Rana Sufyan Mahmood, Advocate in
W.P.No.25225 of 2022.
Mian Mujahid Hussain, Advocate in
W.P.No.24925 of 2022.
Ch. Iqbal Ahmad Khan Dhengal, Advocate
in W.P.No.25115 of 2022.
M/s Mujataba Hassan Tatla and Aftab
Ahmed Toor, Advocates in W.P.No.26307
of 2022.
Rana Abdul Sattar Khan, Advocate in
W.P.No.26317 of 2022.
Mr. Mudassir Abbas Maghiana, Advocate
in W.P.No.26501 of 2022.
Mr. Luqman Ayub, Advocate in
W.P.No.26406 of 2022.
Rana Shahid Mahmood, Advocate in
W.P.No.26628 of 2022.
Writ Petition No.20507 of 2022 3

Ch. Imtiaz Ahmed Kamboh, Advocate in

W.P.No.21859 of 2022.
Rana Taimoor, Advocate in W.P.No.25454
of 2022.
Mr. Imran Ahmed Malik, Advocate in
W.P.No.25617 of 2022, W.P.No.25606 of
2022 and W.P.No.25622 of 2022.
Mr. Muzamil Hussain Virk, Advocate in
W.P.No.25539 of 2022.
Abdul Khaliq Safrani, Advocate in
W.P.No.25767 of 2022.
Mian Shahid Amin, Advocate in
W.P.No.25559 of 2022.
Mr. Waqas Qadeer Shaikh, Advocate in
W.P.No.19150 of 2022 and Criminal
Original No.24552-W of 2022.
Malik Hafiz Muhammad Arshad, Advocate
in W.P.No.18894 of 2022.
Mr. Muhammad Saleem Mirza, Advocate
in W.P.No.19348 of 2022.
Sardar Akbar Ali Dogar, Advocate in
W.P.No.20756 of 2022.
Mr. Zeeshan Ghani Sulehria, Advocate in
W.P.No.21052 of 2022.
Rana Shahid Mahmood, Advocate in
W.P.No.22657 of 2022.
Malik Saleem Iqbal Awan, Advocate in
W.P.No.22729 of 2022.
Mr. Arshad Mahmood Asim Warraich,
Advocate in W.P.No.23503 of 2022 and
W.P.No.23497 of 2022.
Ch. Awais Ahmed, Advocate in
W.P.No.23889 of 2022 and 23900 of 2022.
Ch. Muhammad Sarwar, Advocate in
W.P.No.25032 of 2022.
Mr. Shahid Mahmood Aleem, Advocate in
W.P.No.25026 of 2022.
Mr. Kashif Ali Chaudhary, Advocate in
W.P.No.25662 of 2022.
Mian Muhammad Ismail Thaheem,
Advocate in W.P.No.25635 of 2022 and
W.P.No.25629 of 2022.
Mr. Shahrukh Mehboob, Advocate in
W.P.No.21253 of 2022.
Mr. Rizwan Mohsin Joya, Advocate in
W.P.No.25671 of 2022.
Writ Petition No.20507 of 2022 4

Mr. Maqbool Hussain Sheikh, Advocate in

W.P.No.25529 of 2022.
Respondent(s) by Barrister Ahmad Pervaiz, ASC/Legal
Advisor, Barrister Saffi-ul-Hassan and
Barrister Ahtasham Mukhtar, Advocates
with Khurram Shahzad, ADG Legal, Ch.
Umar Hayat, Director Legal, Hafiz Adeel
Ashraf and Hafiz Muhammad Bilal Azhar,
Legal Assistants, Imran Arif Ranjha, Legal
Advisor and Waqar Ahmad, E.O. for
Election Commission of Pakistan.
Barrister Umair Khan Niazi, Additional
Advocate General.
Ms. Sadia Malik, Assistant Attorney
General.
Mr. Waqar Saeed Khan, Assistant Advocate
General.

JAWAD HASSAN, J. This judgment will decide this

petition alongwith connected petitions, list of which is attached as
Annex-A, where interpretation of the basic provisions of the Election
Act, 2017 (the “Act”) and the Elections Rules, 2017 (the “Rules”)
along with the relevant provisions which deal with the local
government elections have been sought under Article 199 of the
Constitution of Islamic Republic of Pakistan, 1973 (the
“Constitution”).
2. There are various petitions filed before this Court requiring
determination of the constituencies on delimitation conducted by the
Election Commission of Pakistan (the “ECP”) through the
Delimitation Committee (the “Committee”) and Delimitation
Authority (the “Authority”). The common point in all the petitions is
that against the decision of the Committee and the Authority, no
remedy is further provided to the Petitioners.
I. BRIEF BACKGROUND
3. The Petitioners have approached this Court against the
decision of the Committee and the Authority regarding delimitation of
constituencies. The version of the Petitioners is that the election
process was started under the Act and the Rules but the Authority,
while deciding their objections, did not consider the principles of
Writ Petition No.20507 of 2022 5

constituency as given under Chapter 3 read with Sections 17 to 20 of

the Act. It is claimed by the Petitioners that the entire mechanism
provided under the Act and the Rules has not been followed with
regard to delimitation of their constituencies falling under the local
governments as per Chapter XIII, Section 219 to 223 of the Act. The
basic point raised by all the Petitioners, is that whole exercise was
done without affording an opportunity to file any appeal against the
decision of the Authority and as such there is no forum available
except filing of these constitutional petitions. It is to be noted that the
Court will only deal with the issue regarding election of local
government where the Petitioners have no alternate remedy available
to them under the Act and the Rules against the decision of the
Authority and will not look into the provisions of the Punjab Local
Government Ordinance, 2021 and the Rules framed thereunder as that
matter is already pending before the Special Bench constituted to deal
with it.
II. PETITIONERS ARGUMENTS
i. Arguments of Mr. Mubeen ud Din Qazi, ASC
4. Learned counsel for the Petitioners states that the issue in this
case relates to delimitation of the local government and the authorities
prescribed under the provisions of the Constitution therefore, their
case squarely attracts the Preamble of the Constitution which clearly
stated that the State shall exercise its powers and authority through
chosen representatives of the people and the principles of democracy
shall be fully observed. He stated that wording used in the preamble
has to be read with Article 17 of the Constitution which includes the
local government and other authorities in Pakistan. He further stated
that the issue in hand relates to Article 17 read with Articles 32, 33
and 218(3) of the Constitution. He further stated that under Article 17
of the Constitution, right to freedom of association was provided and
under Section 37(i) of the Constitution, the State shall decentralise the
Government administration so as to facilitate expeditious disposal of
its business to meet the convenience and requirements of the public.
Writ Petition No.20507 of 2022 6

He has also referred to Article 32 of the Constitution which deals with

the promotions of local government institutions. Lastly, he has
referred to Article 140A of the Constitution by stating that the ECP is
responsible to conduct elections of the representatives of the local
governments.
ii. Arguments of Syed Tassadaq Mustafa Naqvi, Advocate
5. States that there is no alternate remedy available to the
Petitioners because the objections decided by the Authority are not in
accordance with the principles of delimitation as provided under
Chapter 3, Section 20 of the Act.
iii. Mian Muhammad Ismail Thaheem, Advocate
6. States that the objections decided by the Authority do not
mentions solid reasons under Section 22 of the Act and the matter
needs to be remanded to the ECP for its decision afresh.
iv. Malik Hafiz Muhammad Arshad, Advocate
7. He argued that discriminatory treatment has been meted out
with the Petitioner by the Authority as objections with regard to
adjustment of Block raised by other person of same vicinity have been
accepted while that of Petitioner has been refused as such it is clear
violation of Article 25 of the Constitution.
III. RESPONDENTS ARGUMENTS
8. Barrister Ahmed Pervaiz, ASC objected to maintainability of
the petitions on the ground that the decision passed by the Authority
involves disputed questions of facts and that too, the Petitioners have
no locus standi to file this petition.
9. Ch. Umer Hayat, Director Legal, ECP objected qua
maintainability of the petition by stating that the Petitioners have been
dealt with the procedure provided under Section 223 of the Act which
deals with the objections to be dealt with by the Authority.
MOOT POINTS
10. From the arguments advanced by the parties, the following
moot points have arisen.
Writ Petition No.20507 of 2022 7

I. Whether the constitutional jurisdiction of this Court to

judicially review the orders of the Delimitation Officer and
Delimitation Authority is barred?
II. Whether the objections raised before the Authority against
the decision of the Committee regarding delimitation of
constituencies of local bodies were decided as per law?
III. Whether the ECP can review the correctness of the
delimitation orders/notifications, if non-availability of other
remedy provided under the Act?

It is to be noted that whenever important constitutional moot

points are raised in a constitutional petition, the Courts always framed
moot points in order to settle them strictly under Article 201 of the
Constitution. This Court, has recently discussed in details regarding
framing of moot points and settling them in “MUHAMMAD UMAIS
Versus RAWALPINDI CANTONMENT BOARD etc” (PLD 2022
Lahore 148) by holding that
“After framing of issues on constitutional moot points,
this Court has narrowed down the law points and
determined the fundamental rights of the Petitioner but
while rendering judgment, the constitutional petition
filed under Article 199 of the Constitution, if the writ
petition is admitted for regular hearing, and after
perusing the record from the report and parawise
comments, the Court has to render a decision strictly as
per Articles 199 and 201 of the Constitution. The
decision or order could be a judgment or an order
passed on the constitutional petition filed under Article
199 of the Constitution but those decisions are made
under the established law of precedent under Article 201
of the Constitution, to have a binding effect and its
principles have to be followed later. Article 201 of the
Constitution states that a decision of High Court if (i) it
decides a question of law or is (ii) based upon or (iii)
enunciates a principle of law be binding on subordinate
Courts. In this case, writ petition was filed on
21.04.2021 and after hearing the parties on 28.04.2021,
the Court while admitting the writ petition directed the
parties to file written statement. Thereafter, written
statement was filed by the Respondents and perused by
this Court, hence, before proceedings further, the Court
framed moot points in order to render a judgment under
Writ Petition No.20507 of 2022 8

Article 201 of the Constitution. It is a settled norm that

the decision on a question of law can only be made if
question of law is framed and highlighted from the
pleadings. In this case the Court on 02.06.2021 framed
the constitutional moot points, mentioned above, in
order to render a judgment, while keeping in mind the
principles of law already established by the Superior
Court, relied by both the counsel for the parties, then
passed its decision on it to be called a decision or a
judgment. Accordingly, the judgment then passed will
consists of ratio decidendi, facts, arguments of the
parties, moot points involved, and stare decisis and
obiter dicta. The Constitution clearly empowers the
Courts in Pakistan to render on these parameters
regarding the question of law or based on question
enunciated a principle of law. As every judgment of the
Supreme Court is binding on all Courts under Article
189 of the Constitution, the same words are used in
Article 201 of the Constitution but subject to Article 189
to follow its principle for consistency”.

MOOT POINT NO.1

I. Whether the constitutional jurisdiction of this Court to

judicially review the orders of the Delimitation Officer
and Delimitation Authority is barred?

11. Mr. Mubeen ud Din Qazi, ASC argues that the point involve
in this case can be interfered with by this Court as it has jurisdiction
to judicially review the orders passed by the Authority. On the other
hand, Barrister Ahmed Pervaiz, ASC stated that the Petitioners have
been dealt with by the Authority as per procedure provided under the
Act. It is a settled judicial norm with strong principles of the
Supreme Court in a chain of judgments that Courts jealously guard
their jurisdiction. The constitutional courts do not, with ease, abdicate
or surrender their jurisdiction to exercise judicial power if the Court
is of the view that the order under challenge is illegal and outside the
four corners of the law and no other alternate or special remedy has
been prescribed by law. There would be no decision within the
meaning of the statute if there were anything done contrary to the
essence of justice. Reliance is placed on “BEGUM SYEDA AZRA
MASOOD VERSUS BEGUM NOSHABA MOEEN AND OTHERS”
Writ Petition No.20507 of 2022 9

(2007 SCMR 914), “YOUSAF ALI VERSUS MUHAMMAD ASLAM

ZIA And 2 Others” (PLD 1958 SC 104). The superior courts have
assumed jurisdiction if the order impugned is without jurisdiction,
coram-non-judice or mala fide. A chain of judicial pronouncements
reiterate this view: THE STATE VERSUS ZIA-UR-REHMAN AND
OTHERS (PLD 1973 SC 49), MR. FAZLUL QUADER CHOWDHRY
AND OTHERS VERSUS MR. MUHAMMAD ABDUL HAQUE (PLD
1963 SC 486), THE FEDERATION OF PAKISTAN THROUGH
THE SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT
OF PAKISTAN RAWALPINDI VERSUS SAEED AHMAD KHAN
AND OTHERS (PLD 1974 SC 151), FEDERATION OF PAKISTAN
AND ANOTHER VERSUS MALIK GHULAM MUSTAFA KHAR
(PLD 1989 SC 26), PIR SABIR SHAH VERSUS FEDERATION OF
PAKISTAN AND OTHERS (PLD 1994 SC 738), MUNIR HUSSAIN
BHATTI, ADVOCATE AND OTHERS VERSUS FEDERATION OF
PAKISTAN AND ANOTHER (PLD 2011 SC 407). In view of
aforementioned judicial pronouncements, the constitutional
jurisdiction of this Court to judicially review the orders, notifications
and the acts of the executive i.e. the Delimitation Authority and
Delimitation Committee in this case is not barred.

MOOT POINT NO.2

II. Whether the objections raised before the Authority

against the decision of the Committee regarding
delimitation of constituencies of local bodies were
decided as per law?

12. Syed Tassadaq Mustafa Naqvi and Syed Tassadaq Murtaza

Naqvi, Advocates argue that the Petitioners are remediless as their
objections before the Authority were not dealt with as per law and
principles provided under Section 20 of the Act. In response,
Barrister Ahmed Pervaiz, ASC stated that the Authority has decided
the objection as per law. Before deciding this moot point, it is
expedient to understand the importance of delimitation in democracy.
Democracy is a rich and complex normative concept. It rests on two
Writ Petition No.20507 of 2022 10

bases. The first is the sovereignty of the people. This sovereignty is

exercised in free elections, held on a regular basis, in which the
people choose their representatives, who in turn represent their
views. The growing electoral jurisprudence shows that the right to
vote actually translates into a more potent and substantial right to
equal voting power. The electoral process other than ensuring fair
and free polls, is to ensure that the weight of the vote of a citizen is
not diluted or discriminated prior to the polls during delimitation of
constituencies. This Court in “JAMSHED IQBAL CHEEMA Versus
ELECTION APPELLATE TRIBUNAL etc” (2022 CLC 463) has
already elaborated the principles of democracy with reference to
preamble of the Constitution by holding as under:
“As the preamble of the Constitution specifically
states that (i) principles of democracy shall be fully
observed, (ii) dedicated to the preservation of
democracy achieved by the unremitting struggle of
the people against oppression and tyranny (iii) the
State shall exercise its powers and authority through
the chosen representatives of the people. While
examining the relevant provisions of Section 60 and
62 of the Act, principles enunciated by the Hon’ble
Supreme Court of Pakistan has been followed which
are binding on this Court under Article 189 of the
Constitution. The preamble of the Election Act, 2017
read with Election Rules, 2017, clearly state that an
Act to amend, consolidate and unify laws relating to
the conduct of elections”.

Legal Pathology of Delimitation

13. It is settled principle that delimitation is a vital and
indispensable milestone in the electoral process as it defines and
fashions the strength and weight of a vote. Fair and transparent
delimitation of constituencies is pivotal for holding honest, fair and
just elections. The central focus of any fair and just electoral system
is to ensure that the right to vote is properly guarded against the
scourge of vote dilution or discrimination during the process of
delimitation. Any electoral system must, therefore, be designed to
protect the right to vote. Any step or stage in the process which has a
Writ Petition No.20507 of 2022 11

bearing on the right to vote is an indispensable part of electoral

process.
14. Under the settled jurisprudence developed by the Hon’ble
Supreme Court of Pakistan, it is unequivocal that delimitation, means
the demarcation of the boundaries of an electoral constituency in
order to ensure fair, just and proportional representation of the people
in the elections. The basic object of delimitation is to secure, so far as
practicable, equal representation for equal segments of the population
in legislative bodies. This is usually done with regard to stated
constraints of administrative convenience, contiguity, geographical,
and communication factors; and unstated influences of party-political
advantage. The Principles of delimitation include having regard to
distribution of population in geographically compact areas, existing
boundaries of administrative units, facilities of communication and
public convenience and other cogent factors to ensure homogeneity
in the creation of constituencies. The other equally important aim of
delimitation is to divide the geographic areas into territorial
constituencies so fairly that no party or candidate may legitimately
have a grievance that there has been "gerrymandering" of
constituencies in favour of or against the interests of any particular
party or candidate. Suggesting that the right to cast a ballot is
meaningless if that ballot is undervalued relative to a ballot cast by a
voter in a less populated district. Gerrymandering is "drawing of
district boundaries so as to favour one's own chances in future
elections. The strategies for gerrymandering have been characterized
as 'stacking', 'packing', and 'cracking', each of which seeks to
minimize the influence of those likely to vote for opponents". The
process of delimitation has to ensure that the voting equality is not
disturbed and the vote of one citizen must in no manner be less
than the vote of another citizen. Other than population parity,
geographical compactness, the homogeneity of interest of the
community need to be factored in setting the parameters of
delimitation. Reliance placed on “ARSHAD MEHMOOD Versus
Writ Petition No.20507 of 2022 12

COMMISSIONER/DELIMITATION AUTHORITY, GUJRANAWALA

And Others” (PLD 2014 Lahore 221).
Legal Anatomy of Delimitation
15. By examining the relevant provisions of the Act, Rules it is
very clear that delimitation is not a mere drawing of boundaries with
a stroke of pen. It is a judicious exercise of delineating electoral
areas, vigilantly guarding against any possible fear of vote dilution,
disenfranchisement or corrupt practices. Unfair or partisan
delineation can lead to skewed results, tarnishing electoral integrity.
The foundations or the rules of the game for a fair and just election
are laid down at the time of delimitation of the constituencies. The
delimitation must be a neutral exercise, conducted by a neutral body.
Any partisan political intervention and drawing up of political
constituencies under the dictates of the political party in power is
bound to lead to gerrymandering and unjust political windfall,
tarnishing the sanctity of elections and crippling the faith of an
ordinary man in the system of democracy.
16. The heart of controversy involved in the instant cases is
whether the Committee has rightfully delimited the constituencies as
per the Act and the Rules and whether the objections raised against
the decision of the Committee before the Authority were decided as
per law.
17. In order to ensure free, fair and transparent elections as well
as to guard against the corrupt and illegal practices, it is the duty of
ECP to ensure that the delimitation is carried out strictly in
accordance with the mandatory principles provided under section 10
and 11 of the Punjab Local Government Ordinance 2021 read with
rule 4 of the Punjab Local Government (Delimitation of
Neighborhood Councils and Village Councils) Rules 2022; Section
221 read with Section 20 of the Election Act 2017; Rule 17 of the
Election Rules 2017; and read with Article 222(b) of the Constitution
of Pakistan, 1973 i.e., territorial unity, facilities of communication
and public convenience and other cognate factors to ensure
Writ Petition No.20507 of 2022 13

homogeneity in the creation of constituencies, uniformity of

population/distribution of population in geographically compact
areas, physical features, existing boundaries of administrative units.
18. The case of the Petitioners is that their objections were not
dealt with properly and while passing the impugned
orders/notifications, the Delimitation Committee as well as the
Delimitation Authority neither conducted any independent enquiry or
carried out any field visit, nor the relevant record was examined or
evidence recorded, as required under the Act and the Rules made
thereunder. Hence failed to exercise the power and authority vested
in them under the law, rendering the whole exercise of final
delimitation as well as the impugned order/ notifications, as null and
void. Rule 21 of the Rules is of much importance which gives
procedure of filing objections before the Authority. The Court has
noticed that the order passed by the Authority was not in terms of
parameters as set under Rule 21(2) and (4) of the Rules. The Rule
21(3) clearly envisages that the Authority has to decide objections
after holding inquiries, summoning witnesses and recording of
evidence. This Rule has to be read with Section 223(3) of the Act.
Perusal of Section 223(3) with Rule 21(3) of the Rules makes it quite
clear that the Authority has to decide the objections within thirty days
after holding inquiries, summoning witnesses and recording of
evidence. Although the Authority decided the objections but they are
not in accordance with the Rule ibid. No justification or reasoning
has been mentioned in the impugned order of Delimitation Authority.
It is not a speaking order rather based on evasive grounds. It was
incumbent upon the Authority to decide the objections of each
objector separately on its own merits, but to its dismay it decided
multifarious objections raised by petitioners evasively in a single
order. Such an order is not sustainable under the law. The impugned
order as well as the proceedings are also a gross violation of section
24-A of the General Clauses Act, 1897 which manifestly impresses
upon the Authorities/public functionaries to decide the cases after
Writ Petition No.20507 of 2022 14

application of mind on the touchstone of reasonableness, which

otherwise is lacking in the instant case. The Delimitation Authority
while conducting the impugned delimitation, have failed to act
reasonably, fairly and justly as required under section 24-A of
General Clauses Act. Reliance is placed on FASIH-UD-DIN KHAN
VERSUS GOVERNMENT OF PUNJAB (2010 SCMR 1778),
CHAIRMAN, STATE LIFE INSURANCE CORPORATION VERSUS
HAMAYUN IRFAN (2010 SCMR 1495) & UNITED WOOLLEN
MILLS LTD. WORKERS' UNION VERSUS UNITED WOOLLEN
MILLS LTD (2010 SCMR 1475).

MOOT POINT NO.3

III. Whether the ECP can review the correctness of the

delimitation orders/notifications, if non-availability of
other remedy provided under the Act?

19. Mr. Mubeen Uddin Qazi, ASC and Sardar Akbar Ali Dogar
Advocates argued at length and stated that the Petitioners are
remediless against the decision of the Authority, hence they have
brought this petition before this Court with the stance that despite
passing of orders by the Authority, the ECP, being regulator of the
elections process, still have power of review of its order. This stance
has strongly been controverted by Barrister Ahmed Pervaiz,
ASC/Legal Advisor of ECP on the ground that the Petitioners have
been dealt by the Authority made under the law hence there was no
scope of review of order passed by the Authority. This point has to be
examined by this Court in the light of relevant provisions of the Act
and the Rules. The issue raised in these petitions is that no forum is
provided under the Act after decision of objections of the Petitioners
by the Authority. As the matter relates to delimitation of
constituencies of local government therefore Court will examine the
remedy of the Petitioners against the decision of the Authority under
the Act, Rules and the Constitution.
20. The preamble of the Constitution states that the principles of
democracy shall be fully observed and the State shall exercise its
Writ Petition No.20507 of 2022 15

powers and authority through the chosen representatives of the

people. The local government and its elections by the ECP have been
provided under Article 140-A of the Constitution which specifically
states that each province, by law, establish a local government system
and election of local government shall be held by the ECP. Since the
issue in hand relates to delimitation of local government and this
important aspect has to be seen with Article 4 of the Constitution.
According to this Article, it is an inalienable right of every citizen to
enjoy the protection of law and to be treated in accordance with law
(the Act and the Rules) and no action detrimental to the life, liberty,
body, reputation or property of any person shall be taken except in
accordance with law. Article 32 of the Constitution envisages that the
State shall encourage local Government institutions composed of
elected representatives of the areas concerned and in such
institutions special representation will be given to peasants, workers
and women. The word ‘elected representatives of the area concerned
includes the representatives who are before this Court on the issue of
delimitation of their constituencies. Article 37(i) of the Constitution
demonstrates that the State shall decentralise the Government
administration so as to facilitate expeditious disposal of its business
to meet the convenience and requirements of the public. Article 222
of the Constitution provides for nature and scope of electoral laws
and the Act and the Rules were made by the Provincial Assembly
however, a close reading of Article 222(b) would indicate that it does
not relate to delimitation of constituencies of National and Provincial
Assemblies alone rather it is open-ended and construed harmoniously
with the other relevant provisions of the Constitution, would include
the making of appropriate laws by the Parliament for delimitation of
constituencies for the local governments. Article 222(c) clearly gives
an option that the preparation of electoral laws and determination of
objections pertaining to electoral roles. The words ‘objections
pertaining to electoral laws’ used under the referred Article give
relevancy to the objections made by the voter against the decision of
Writ Petition No.20507 of 2022 16

Committee and the Authority. The Court is convinced of the fact that
it is the Commission who prepared electoral roles under Article
219(a) of the Constitution which includes the electoral roles of local
government to hold general elections. In order to hold general
elections and to prepare electoral roles, the onus is on the
Commission to provide an opportunity to deal with the objections
raised therein. In this regard, Article 218 of the Constitution casts
upon a duty on the Commission to ensure and conduct elections,
justly, fairly and in accordance with law.
21. Under Section 22 of the Act, Chapter III referred by Section
221 of the Act gives the powers to the Commission to make
amendment, alteration or modification in final list of constituencies
as power given in Section 40 of the Act read with Section 58 of the
Act. This means that in order to conduct fair elections in terms of
Article 218(3) and 219 read with Article 222 of the Constitution, the
Commission has the mandate and power to make such amendment,
alteration or modification in order to avoid further complications and
other things from time to time but that power has to be exercised
within time and that too is subject to other legal requirements of
factual disputes involved therein. When this point was confronted to
Khuram Shahzad, ADG Legal, Ch. Umar Hayat, Director Legal
appeared on behalf of ECP and stated that ECP has power to alter,
amend or modify final list under the relevant provisions of the Act
however, they could not satisfactorily replied however, learned legal
advisor of ECP stated that although there are certain provisions under
which the ECP can make amendment, alteration but these are not
applicable in the case in hand. It is to be noted that under Section 22
of the Act, the Commission has the duty under Section 219 read with
Section 218 of the Constitution to organize fair elections justly, fairly
honestly in accordance with law. Section 22 of the Act starts with
opening ‘notwithstanding anything contained in this Act’, which
means that this power of the Commission can be exercised in three
manners and modes i.e. (i) at any time but at least four months (ii) of
Writ Petition No.20507 of 2022 17

its own motion and for reasons to be recorded, make such

amendments, alterations or modifications in the final list of
constituencies. This means this power of his own motion or for
reasons to be recorded but it is subject to Section 219 of the Act that
is very relevant for this case because both Chapter III and Chapter
XIII have cross reference for the reasons that the list of
constituencies is prepared after the Commission receive, hear and
consider representations. The concept of hearing and deciding the
objections are provided under the Act and the Rules in true sense to
comply with the requirement of the Constitution, as mentioned above
by keeping in view Article 10-A of the Constitution which provides
fundamental rights of fair trial and due process. Thus Section 22 of
the Act explains that the Commission at any time, on his own motion
or for the reasons to be recorded can alter, amend or modify the final
list.
22. The election laws were made by the Parliament subject to
Article 222 of the Constitution. The issue of delimitation of
constituencies of local government can be looked into when we
examine the preamble of the Act read with Section 2 of the Act
which deals with the definitions including election programs and the
voter. Under the Act, Commission was established under Chapter II
but the issue in this case is the delimitation of the constituencies
under Chapter III which deals with the Commission to delimit
constituencies of the local government in terms of Section 19 and the
principles of delimitation under Section 20 of the Act. In the case in
hand, the issue relates to Chapter XIII, Conduct of Elections of Local
Governments. Bare reading of Section 222(1) of the Act makes it
quite clear that the Commission shall delimit constituencies regarding
conduct of elections of the local government and when this Section is
read with Section 219 of the Act, it is the Commission who can
delimit the constituencies of local governments including the union
councils, wards in a union council, a ward in a district council or
ward in a municipal committee, as far as possible and subject to
Writ Petition No.20507 of 2022 18

necessary modifications, in accordance with Chapter III of this Act

and the Rules. What is to be noted here is that the Commission has
powers to delimit constituencies subject to law and in accordance
with Chapter III of the Act and the Rules. Chapter III gives some
principles of delimitation with certain clarities with Section 22 of the
Act. Once the Committee is appointed by the Commission under
Section 222 of the Act, the decision of the Committee is then further
challenged before the Authority constituted under Section 223 of the
Act and the Authority under Rule 21(3) of the Rules, decides the
objections in terms of Section 223(3) of the Act within thirty days
from the delimitation conducted by the Committee after holding
inquiries, summoning witnesses and recording of evidence. Section
223(3) of the Act is reproduced hereunder:
223. Appointment of Delimitation Authority.—(1) The
Commission shall appoint from amongst its own officers
or from the officers of the subordinate judiciary a
Delimitation Authority for each district to hear and
decide the objections against the delimitation carried out
by the Delimitation Committee.
(2) An officer of the subordinate judiciary shall be
appointed as Delimitation Authority in consultation with
the Chief Justice of the High Court concerned.
(3) A voter may, within fifteen days of the delimitation of
constituencies by the Delimitation Committee, file
objections against the delimitation before the
Delimitation Authority which shall decide the objections
within thirty days from the date of delimitation of
constituencies by the Delimitation Committee.

23. From the perusal of above section, it is clear that the Authority
decides the objections within thirty days from the date of delimitation
of constituencies by the Committee. The word ‘decides’ means to
decide as per law and for this purpose, Section 221 of the Act deals
with delimitation of local government constituencies while Section 20
of the Act deals with principles of delimitation. The said section is
reproduced hereunder:
20. Principles of delimitation.—(1) All constituencies for
general seats shall, as far as practicable, be delimited
having regard to the distribution of population in
geographically compact areas, physical features, existing
boundaries of administrative units, facilities of
communication and public convenience and other cognate
factors to ensure homogeneity in the creation of
constituencies.
.
Writ Petition No.20507 of 2022 19

.
.
(3) As far as possible, variation in population of
constituencies of an Assembly or a local government shall
not ordinarily exceed ten percent.
(4) If the limit of ten percent under sub-section (3) is
exceeded in an exceptional case, the Commission shall
record reasons thereof in the delimitation order.

24. A bare reading of Article 218(3) of the Constitution makes it

clear that the Election Commission is charged with the duty to
'organize' and 'conduct the election'. The language of the Article
implies that the Election Commission is responsible not only for
conducting the election itself, but also for making all necessary
arrangements for the said purpose, prior to the Election Day. By
conferring such responsibility on the Election Commission, the
Constitution ensures that all activities both prior, and subsequent to
Election Day, that are carried out in anticipation thereof, adhere to
standards of justness and fairness and in accordance with law.
Reliance is placed on “WORKERS 'PARTY PAKISTAN through
Akhtar Hussain, Advocate, General Secretary and 6 others Versus
FEDERATION OF PAKISTAN and 2 others” (PLD 2012 SC 681). In
order to achieve the mandate of the Election Commission in terms of
Art. 218(3) read with Art. 220 and other enabling provisions of the
Constitution and the law, the Election Commission was required to
take all available measures including utilizing technologies to fulfil
the solemn constitutional duty to ensure that the election was
conducted honestly, justly, fairly and in accordance with law and that
corrupt practices were guarded against. Reliance is placed on
“REFERENCE NO. 1 OF 2020” decided on 1st March, 2021 (PLD
2021 Supreme Court 825).
25. While interpreting the words conduct and organize as appeared
in Art. 218(3) of the Constitution the Honorable Supreme Court
observed that the word conduct means ‘to manage; direct; lead; have
direction; carry on; regulate; do business’ while the word organize
means ‘to establish or furnish with organs; to systematize; to put into
working order; to arrange in order for the normal exercise of its
Writ Petition No.20507 of 2022 20

appropriate functions’. The process of delimitation of constituencies

for an election was one of the important steps to organize and conduct
elections because it was only with reference to a constituency that a
candidate would exercise his right/option to contest and a voter would
exercise his right to vote. The delimitation of constituencies of the
Local Government was part of the process of organizing and holding
elections honestly, justly and fairly which was the constitutional
mandate of the ECP. Reliance is placed on “PROVINCE OF SINDH
through Chief Secretary and others Versus M.Q.M. through Deputy
Convener and others” (PLD 2014 Supreme Court 531). The
expression "organizing and conducting elections" would seem to
include the taking of all steps that might be deemed necessary for
securing the return of the candidates from
constituencies" (Fundamental Law of Pakistan by A.K.Brohi). This
thought is echoed in a full bench judgment of this Court reported as
“MUHAMMAD NAZIR HAKIM V. BUKHTIAR SAID MUHAMMAD
AND THE CONTROLLING AUTHORITY, MONTGOMERY” (PLD
1962 Lahore 421).
26. While examining judgments of the Hon’ble Supreme Court of
Pakistan, it is settled that fair elections would mean fair representation
and delimitation of constituencies was a foundational step towards
such end. One of the fundamental steps to hold fair elections is that
the process of delimitation of constituencies should be carried out by a
neutral and credible body. The delimitation of constituencies of the
Local Government was part of the process of organizing and holding
elections honestly, justly and fairly which was the constitutional
mandate of the Election Commission and power to carry out such
delimitation should vest with the Election Commission. Reliance is
placed on “ELECTION COMMISSION OF PAKISTAN through
Secretary Versus PROVINCE OF PUNJAB through Chief Secretary
and others” (PLD 2014 Supreme Court 668).
27. As a sequel of afore discussion it can be safely inferred that
the delimitation for Local Government Elections is the prerogative of
Writ Petition No.20507 of 2022 21

ECP. It is an integral and pivotal part of electoral process and falls

exclusively under the constitutional role and obligation of ECP to
organize and make necessary arrangements for holding local bodies
elections. Admittedly, no appeal or remedy is provided against the
order of the Delimitation Authority and mostly such decisions are
considered to be final. However, it does not mean that petitioners are
remedy-less. The ECP is the apex, independent and neutral
constitutional authority to hold, organize and conduct elections in
Pakistan. After Local Government elections have been recognized as
constitutional elections (18th Constitutional Amendment (2010), the
role of ECP fully extends to all the stages of the electoral system
envisaged under the Act including preparation of electoral rolls and
delimitation of constituencies as is the case with the other
constitutional elections.
28. In light of aforementioned reasons all these petitions are
allowed and the impugned orders of Delimitation Authority and the
impugned Notifications issued by the Delimitation Officers are set
aside. The ECP under provisions of the Act, Rules and the
Constitution has the mandate to make amendments, alteration or
modification in the final list of constituencies so, the remedy provided
under Section 22 of the Act can be deemed to be made as
representation to the ECP against the decision of the Authority.
Therefore, all the petitions are referred to the ECP as representation
against the decision of the Authority to decide it, as per law. The
Petitioners shall appear before the ECP on 14.06.2022. The ECP shall
decide the issues within one month, as per law.

(JAWAD HASSAN)
JUDGE
Approved for Reporting

JUDGE

Usman*
Writ Petition No.20507 of 2022 22

ANNEX-A
INDEX

Sr.No. Number of Writ Petition

1 W.P.No.24862 of 2022.
2 W.P.No.26439 of 2022.
3 W.P.No.24200 of 2022
4 W.P.No.24654 of 2022.
5 W.P.No.26801 of 2022.
6 W.P.No.26163 of 2022.
7 W.P.No.25192 of 2022.
8 W.P.No.25337 of 2022.
9 W.P.No.24286 of 2022.
10 W.P.No.24434 of 2022.
11 W.P.No.25166 of 2022.
12 W.P.No.24582 of 2022.
13 W.P.No.24886 of 2022.
14 W.P.No.25287 of 2022.
15 W.P.No.25288 of 2022.
16 W.P.No.24945 of 2022.
17 W.P.No.25296 of 2022.
18 W.P.No.24560 of 2022.
19 W.P.No.25340 of 2022.
20 W.P.No.25374 of 2022.
21 W.P.No.25035 of 2022.
22 W.P.No.25308 of 2022.
23 W.P.No.24647 of 2022.
24 W.P.No.25090 of 2022.
25 W.P.No.25175 of 2022.
26 W.P.No.25225 of 2022.
27 W.P.No.24925 of 2022.
28 W.P.No.25115 of 2022.
29 W.P.No.26307 of 2022.
30 W.P.No.26317 of 2022.
31 W.P.No.26501 of 2022.
32 W.P.No.26406 of 2022.
33 W.P.No.26628 of 2022.
34 W.P.No.21859 of 2022.
35 W.P.No.25454 of 2022.
36 W.P.No.25617 of 2022
37 W.P.No.25606 of 2022
38 W.P.No.25622 of 2022.
39 W.P.No.25539 of 2022.
40 W.P.No.25767 of 2022.
41 W.P.No.25559 of 2022.
42 W.P.No.19150 of 2022
Writ Petition No.20507 of 2022 23

43 W.P.No.18894 of 2022.
44 W.P.No.19348 of 2022.
45 W.P.No.20756 of 2022.
46 W.P.No.21052 of 2022.
47 W.P.No.22657 of 2022.
48 W.P.No.22729 of 2022.
49 W.P.No.23503 of 2022
50 W.P.No.23497 of 2022.
51 W.P.No.23889 of 2022
52 W.P.No.23900 of 2022.
53 W.P.No.25032 of 2022.
54 W.P.No.25026 of 2022.
55 W.P.No.25662 of 2022.
56 W.P.No.25635 of 2022
57 W.P.No.25629 of 2022.
58 W.P.No.21253 of 2022.
59 W.P.No.25671 of 2022.
60 W.P.No.25529 of 2022.