IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

CR. ORG. NO. _________________ 2023

IN

SUO MOTU CASE NO. 1 OF 2023

(Suo Motu Regarding Holding of General Elections to the Provincial Assemblies of Punjab and KP)

And
CONST. PETITION NO.1 OF 2023

And
CONST. PETITION NO.2 OF 2023

Mushtaq Ahmad Ghani

Son of Mr. Abdul Ghani,
Speaker of the Provincial Assembly of Khyber Pakhtunkhwa,
Speaker House, Sahibzada Abdul Qayyum Road,
Peshawar.

………. Petitioner

Versus

1. Haji Ghulam Ali,

Governor, Khyber Pakhtunkhwa,
Governor House, Sahibzada Abdul Qayyum Road,
Peshawar.
………. Contemnor/Respondent

2. Election Commission of Pakistan (ECP),

Through its Secretary,
Election House, Constitutional Avenue,
Islamabad.
………. Proforma Respondent

CRIMINAL ORIGINAL PETITION FOR INITIATION OF CONTEMPT

OF COURT PROCEEDINGS AGAINST HAJI GHULAM ALI
(RESPONDENT NO.1) UNDER ARTICLE 204 OF THE CONSTITUTION
TOGETHER WITH SECTION 3 OF THE CONTEMPT OF COURT
ORDINANCE, 2003 (ORDINANCE V OF 2003) READ WITH ORDER
XXVII OF THE SUPREME COURT RULES, 1980 AND
IMPLEMENTATION OF JUDGMENT AND ORDER OF THIS
HONORABLE COURT DATED 01.03.2023
May it please this Honorable Court

The Petitioner, Speaker of the dissolved Provincial Assembly of Khyber

Pakhtunkhwa, very humbly implores kind indulgence of the Honorable Apex
Court, as follows:

1. That the Petitioner, as the calendar of parties in this petition reads, is the
duly chosen Speaker of the Provincial Assembly of Khyber Pakhtunkhwa.
As the events unfolded, the Provincial Assembly of Khyber Pakhtunkhwa
was dissolved by the Contemnor/Respondent No. 1 on January 18, 2023 (As
Governor KP) while acting on the advice of the then Chief Minister under
Article 112(1) of the Constitution. Upon dissolution of the Assembly,
Contemnor/Respondent No. 1 was immediately obligated, as the very first
imperative under Article 105(3) ibid to “appoint a date for the holding of a
general election thereto, being a date not later than 90 days from the date of
the dissolution”. As the Constitution enumerates, this obligation of the
Governor precedes even his other duty to appoint a caretaker government to
perform day to day functions until the election of the next government, in
terms of Articles 224 and 224A of the Constitution.

2. That it is a matter of record that soon after such dissolution of Provincial

Assembly of Khyber Pakhtunkhwa, Respondent No. 2 ECP had written a
number of letters, repeatedly urging and requesting the
Contemnor/Respondent No. 1 to discharge his constitution obligation and
appoint the date of poll for the ensuing general election within Province of
Khyber Pakhtunkhwa. Although the Constitution does not leave any room
for doubts or uncertainties and the role of the Contemnor/Respondent No. 1
is merely to appoint a date and nothing more, yet, Contemnor/Respondent
No. 1 had been creating and propagating doubts, qualms, fears and
misgivings about holding of general elections within the constitutionally
guaranteed deadline of 90 days on one pretext or the other. He had been
brazenly giving interviews in print and electronic media, maintaining that he
does not see elections to happen within constitutional timeframe.
3. That instead of discharging his constitutional responsibility and living up to
the language of his oath of office, administered to him at time of entering
upon his office, under Article 102 of the Constitution and as set out in Third
Schedule to the Constitution that he shall discharge his duties, and perform
his functions, honestly, to the best of his ability, faithfully, in accordance
with the Constitution of the Islamic Republic of Pakistan and the law and
that he will preserve, protect and defend the Constitution of the Islamic
Republic of Pakistan, the Contemnor/ Respondent No. 1 willfully chose to
ignore the exalted status of his high constitutional office and while willfully
defying of the mandate of Article 5 and exposing himself to the risk of
proceedings under Article 6, he had been striving hard to find loopholes in
the Constitutional scheme to avert and indefinitely postpone the general
elections in Khyber Pakhtunkhwa. On receiving a chain of letters from
Respondent No. 2 ECP, instead of giving a date, the Contemnor/Respondent
No. 1 had started exchanging letters with caretaker provincial government
and kept asking them to examine “law and order” situation and take into
account certain other absolutely extraneous considerations with a nefarious
design to create doubts whether general elections can be held in KP or not.

4. That when the Contemnor/Respondent No.1 clearly appeared in mood of

defying the Constitution with a self-assumed sense of impunity, and while
the date of general election in Punjab was also not been given, the Petitioner
and Mr. Muhammad Sibtain Khan (Speaker, Punjab Assembly) collectively
approached this Honorable Court through Const. Petition No. 02 of 2023. As
the Constitutional timeframe to hold general elections within 90 days was
expiring fast and things were not at all moving, the Honorable Chief Justice
of Pakistan was pleased, in the meanwhile, also to take Suo Motu notice of
the matter on 22.02.2023 and thus fixed the matter before a Larger Bench
comprising nine (09) Honorable Judges of this Court on 23.02.2023
alongside the Constitutional Petitions No .1 and 2 of 2023. Some of the
Honorable Judges recused themselves and/or dissociated from the Bench,
hence the Bench was reconstituted and the case was thereafter heard on
several dates and finally decided on 01.03.2023 with a majority of 3:2
 through a short order that required the Contemnor/Respondent No. 1 to
appoint a date of general election forthwith.

5. That the majority judgment, so read in the open court, on 01.03.2023 and
uploaded on the website of Supreme Court inter alia reads:

“10. On a conjoint reading of the foregoing provisions we

conclude and hold as follows:

a. In situations where the Assembly is dissolved by an

order of the Governor, the constitutional responsibility
of appointing a date for the general election that must
follow is to be discharged by the Governor as provided
in terms of Article 105(3)(a). These are the situations
described in paras 5 and 6(a) above.”

It further read:

“13. …….. It also follows that the Governor of KPK

Province, inasmuch as he has not appointed a date for
the holding of the general election to the Assembly of
that Province is in breach of his constitutional
responsibility.” (Stress added)

The majority judgment then goes on to provide:

“14. It is further declared and directed as follows in relation

to the matters before the Court:

a. In ordinary circumstances the general election to the

Punjab Assembly ought to be held on 09.04.2023, the
date announced by the President in terms of his order
of 20.02.2023. However, we are informed that on
account of the delay in the emergence of the date for
 the holding of the general election, it may not be
possible to meet the 90 day deadline stipulated by the
Constitution. It is also the case that (possibly on
account of a misunderstanding of the law) the Election
Commission did not make itself available for
consultation as required under s. 57(1) of the 2017 Act.
The Election Commission is therefore directed to use
its utmost efforts to immediately propose, keeping in
mind ss. 57 and 58 of the 2017 Act, a date to the
President that is compliant with the aforesaid deadline.
If such a course is not available, then the Election
Commission shall in like manner propose a date for
the holding of the poll that deviates to the barest
minimum from the aforesaid deadline. After
consultation with the Election Commission the
President shall announce a date for the holding of the
general election to the Punjab Assembly.

b. The Governor of the KPK Province must after

consultation with the Election Commission forthwith
appoint a date for the holding of the general election to
the KPK Assembly and the preceding clause (a) shall,
mutatis mutandis, apply in relation thereto.” (emphasis
added)

6. That as the language of the majority judgment does not leave any doubt, the
Honorable Supreme Court, while sensing the urgency involved, tried to
impress upon the contemnor/Respondent No. 1 that he is already in breach
of his constitutional responsibilities and that he must appoint the date for
holding the general election to the KP Assembly forthwith and if by any
means the date for such polls has to deviate from the constitutional mandate,
such deviation must be barest minimum. Despite such unequivocal and
categorical determination by this august Court, the conduct of the
Contemnor/Respondent No. 1 bald-facedly sees no improvement. While the
 President of Pakistan after consulting the Respondent No. 2 ECP appointed
30.04.2023 as the date of poll in Punjab in light of directions of Supreme
Court (so reproduced above) and the ECP thereafter notified the schedule of
election activities as well, Not so fortunate Province of Khyber
Pakhtunkhwa still awaits the restoration of democracy anxiously as the
Contemnor/Respondent has not given the date, despite efflux of more than
twenty (20) days even after such a categorical pronouncement by this
Honorable Court.

7. That it is a matter of record that soon after announcement of majority

judgment by this Honorable Court, Respondent No. 2 ECP once again wrote
and urged the Contemnor/Respondent No. 1 to appoint a date. In response,
Respondent No. 1 appeared on mainstream media/news channels, in
primetime shows and audaciously said that he has not opened the letter of
ECP as yet and will open it after the weekend and allowed days after days to
pass without any progress and thus the constitutional timeline to be violated
in most barefaced and insolent defiance of the majority judgment of this
Court. He, thereafter, reluctantly opened the letter and thereafter required the
ECP team to visit him on 7 th or 8th of March, 2023 and thereafter started
directing them how to prepare for such meeting. This impudent
correspondence even irked the ECP, who had to retort through a press
release, reminding the Contemnor/Respondent No. 1 that he is only
supposed to give the date and holding the elections is within the domain of
ECP, with him having no role in conduct of free, fair and transparent holding
of such elections in KP.

8. That thereafter a high-powered and fully authorized team from Respondent

No. 2 ECP headed by the Secretary Election Commission visited the
Contemnor/Respondent No. 1 on 08.03.2023 but instead of appointing the
date, the Contemnor once again eluded his constitutional obligations. He
upon conclusion of such visit to the Governor House, instead of giving the
date, desired that he would like to visit and meet the Commission at ECP
House, Islamabad on 14.03.2023.
9. That thereafter he attended a meeting with the Chief Election Commissioner
and other members of ECP on 14.03.2023, the day when it was reported on
media that the ECP had also received multiple briefings from other
stakeholders. Upon conclusion of this Meeting, the Contemnor/Respondent
No. 1 while answering a few journalists from print and electronic media
announced that he has finalized 28th of May, 2023 as the proposed date for
general elections in KP and will soon issue a formal letter to this effect to the
Election Commission. Needless to mention here that 28.05.2023 was by no
mean a substantial compliance to the clear dictates of this Honorable Court
to announce a date forthwith and with barest minimum deviation to the
timeframe so prescribed by the Constitution i.e. 90 days.

10. That upon his return, most unfortunately, no such letter appointing the date
of poll, as promised, was however issued and things appeared to have been
intentionally relegated to some proverbial backburner for no valid rhyme or
reasons. Meanwhile a letter, ascribed to the Contemnor/Respondent No. 1
and purportedly dated 15.03.2023, under his hand, started making rounds on
the social media and other news platforms, wherein Contemnor/Respondent
No. 1 is trying to justify that general elections should not take place in KP
on multiple lame excuses and pretexts.

11. That the so-called Letter dated 15.03.2023 is clearly based on faulty
premises and excuses that are absolutely extraneous to the scheme of
constitution. Its contents, sadly enough, give an impression as if democracy
in the Province is merely optional and either the Contemnor/Respondent No.
1 or for that matter the caretaker government of KP, whose prime mandate
in terms of the Constitution read with Section 230 of the Election Act, 2017
is nothing but holding the general elections, can refuse to hold such general
elections and continue to run the Province without any elected mandate.
Contemnor/Respondent No. 1 and different officials of the caretaker setup
and law enforcement agencies are trying to give an impression that the
general election and the democratically elected government, ensuing such
election are something out-of-the-ordinary and thus shall be postponed
indefinitely. If the caretakers or the federal LEAs are of the view that law
and order is not conducive, can they be given any license to make this
judgment call and thus postpone elections notwithstanding the directions by
 this Honorable Court in its judgment and order dated 01.03.2023. Similarly,
the pretext of caretakers that they are facing financial difficulties fall on
ground when such caretakers are planning to float subsidies amounting to
Rs. 20+ Billions during Ramadan to gain political milage and seek
validation from masses. Pretexts such as simultaneous elections in NA and
Pas and postponing elections for non-existent census are again based on
misreading and non-reading of the Constitution and are nothing but a clear
proof that the Contemnor/Respondent No. 1 is bent upon flouting and
overturning a clear-cut order of this Apex Court.

12. That the conduct of the ECP/Respondent No. 2 is also extremely

discouraging as it appears from their latest Press Release dated 17.03.2023
that even they are hand in gloves with the Contemnor/Respondent No. 2.
ECP also appears to careen towards postponing general elections both in KP
and Punjab while aligning themselves with defective line of reasoning
orchestrated by the Contemnor/Respondent No. 1.

13. That by his brash and unabashed mannerism and public posturing, the
Contemnor/Respondent No. 1 has left no doubt that he is not at all interested
in discharging his constitutional responsibilities and thus is fully geared up
to defy, disregard and disobey the orders of this Honorable Court and has
thus conducted himself in a manner to have clearly and undoubtedly
committed culpable contempt of court.

14. That although Contemnor/Respondent No. 1 holds an office that is

mentioned in Article 248, however this Honorable Court has already held in
the case of Masrror Ahzan v. Ardsher Cowasjee (PLD 1998 SC 823) that
scope of powers and functions of such a high functionary cannot possibly
extend to the committing of contempt of Court which is punishable under
the Constitution itself and therefore by necessary implication prohibited---
Neither the Constitution nor any law authorize holder of such high office to
commit a criminal act or do anything which is contrary to law---
immunity provided in Art.248 of the Constitution cannot extend to illegal or
unconstitutional acts---Holders of such high offices are bound to obey the
 Constitution and law under Art.5(2) of the Constitution which is basic
obligation of every citizen.

15. That notwithstanding immunity available in Article 248, the

Contemnor/Respondent No. 1 has committed contempt of court and has thus
acted against his oath of office. In the case of Syed Yousaf Raza Gillani vs.
Asstt. Registrar Supreme Court (PLD 2012 SC 466), this Court went on
to further hold that holder of such exalted offices (including President/Prime
Minister or Governor) on account of his executive office, which sought for
him greater restraint amounting to an exception from contempt proceedings,
did not find any basis in the Constitution---Preamble of the Constitution
provided a number of principles upon which the Constitution was founded
and in line with which it must, therefore, be interpreted; amongst these was
mentioned the principle of equality, as enunciated by Islam which, the
preamble ordained, shall be fully observed; a number of Articles of the
Constitution were framed to give effect to the principle of equality enshrined
thus in the Preamble amongst these was Article 5 which provided that
obedience to the Constitution and law is the inviolable obligation of every
citizen wherever he may be. Constitution mentioned no exemptions from the
obligation it imposes---Exceptionalism therefore, which was being claimed
by the appellant had no constitutional basis--Article 25(1) of the
Constitution in the clearest terms provides that all citizens are equal before
law and are entitled to equal protection of law. This seminal judgment
further goes on to propound that “Holder of Constitutional office was under
this higher responsibility because he, unlike ordinary citizens, makes an oath
to discharge his duties in accordance with the Constitution and the law; -
Their oath also required that they will preserve, protect and defend the
Constitution;, therefore, more stringent legal standards apply to them as
compared to others who have not taken a similar oath and the court had
greater reason to be particularly concerned about the possibility
of contempt having been committed by such public officeholders.

16. That as is evident from the facts as laid in this Petition, this is a prima facie
case that the obligation to obey the directions of Supreme Court have been
violated by the Contemnor/Respondent No. 1 despite being the highest
constitutional functionary of the Province; and since legal scrutiny is clearly
 warranted, therefore, it is necessary to proceed against the
Contemnor/Respondent No. 1.

17. That the Contemnor/Respondent No. 1 has violated the constitution. Not
only he has been found by this Court to have committed breach of his
constitutional responsibilities and but he has also been persisting to
continuously disregard and disobey most clear directions of this Honorable
Court to fix a date forthwith. The Applicant also reserves his right to
approach competent forum to initiate proceedings against the Respondent
No. 1 under Article 6 of the Constitution besides seeking his immediate
removal from an exalted constitutional office.

IN THE CIRCUMSTANCES, it is therefore very humbly prayed that the

proceedings may very graciously be initiated against Haji Gulam Ali,
Contemnor/Respondent No. 1 under Article 204 of the Constitution, Section 3 of
the Contempt of Court Ordinance, 2003 and Order XVII of the Supreme Court
Rules, 1980 and punish him accordingly. Simultaneously this Honorable Court
may also get its judgment and order dated 01.03.2023 implemented without any
further delay and if the Contemnor/Respondent No. 1 is not willing or ready to
appoint such date, this Honorable Court may either direct that President or any
other suitable functionary to appoint such date for poll or fix the date itself, as has
been done in a previous election. Any other relief, not specifically prayed, may
also graciously be granted, if appears just, necessary and appropriate.

Drawn and Filed By:

Anees Shahzad,
(Advocate on Record)