IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

C.M.A. No. __________/2023

IN

Constitution Petition No. 5 of 2023

Mohammad Sibtain Khan and others …….. Petitioners

Versus
Election Commission of Pakistan and others …..Respondents

CONCISE STATEMENT UNDER ORDER XVIII RULE 1 OF THE

SUPREME COURT RULES, 1980 ON BEHALF OF THE FEDERATION
OF PAKISTAN

Respectfully Sheweth:

1. That the titled Petition seeks to challenge the order dated 22-03-2023

passed by the Election Commission of Pakistan (“ECP”). Vide order

dated 22-03-2023, the ECP has given 08-10-2023 as the new date for

the general elections to the Provincial Assembly of the Punjab.

Previously and as per the prayer in the instant Petition, pursuant to

the order of this Court passed in SMC No. 1/2023 and CPs No. 1 and

2 of 2023, the President of Pakistan had appointed 30-04-2023 as the

date for the general elections to the Provincial Assembly of the

Punjab. Through the instant Petition, the Petitioners have assailed

the ECP order dated 22-03-2023, which, according to the Petitioners,

is in violation of this Court’s order dated 01-03-2023.

2. The Federation seeks to object to the maintainability and hearing of

the instant Petition for being based on misreading and mistaken

understanding of the order/judgment dated 01-03-2023 passed in

SMC No. 1/2023 and C.Ps No. 1 and 2 of 2023. In order to ascertain

the true import of the order/judgment dated 01-03-2023, it is

imperative that the chronology of events/hearings leading up to 01-

03-2023.

Invocation of Suo Motu under Article 184(3)

3. Vide order dated 16-02-2023 passed in C.P No.3988 of 2022 titled

Ghulam Mehmood Dogar v. Federation of Pakistan, Hon’ble Mr.

Justice Ijaz ul Ahsan and Hon’ble Mr. Justice Sayyed Mazahar Ali

Akber Naqvi took suo motu notice on the delay in holding the general

elections to the Provincial Assembly of the Punjab. Upon the

recommendation of the two-member Bench, the Hon’ble Chief

Justice of Pakistan invoked the suo motu jurisdiction of this Court

under Article 184(3) of the Constitution, by his administrative order

dated 22-02-2023,and constituted a nine- member Bench to consider

the questions of law framed therein and also fixed the connected C.Ps

No.1 and 2 of 2023 for hearing before the nine-member Bench.

Proceedings on 23-02-2023

4. On 23-02-2023, the nine-member Bench issued notices to the

Respondents including, the political parties who are part of the

 Pakistan Democratic Movement (PDM). Two members of the Bench

(Hon’ble Mr. Justice Yayha Afridi and Hon’ble Mr. Justice Ather

Minallah) had dismissed SMC No. 1/2023 and CPs No. 1 and 2 of

2023, vide order dated 23-02-2023.

Proceedings on 24-02-2023& Order released on 27-02-2023

5. Respondents including, the political parties, namely, PMLN, PPPP

and JUI-P entered appearance and a joint statement on behalf of the

aforesaid three political parties was read out in the Court. These

three political parties objected to the inclusion of Hon’ble Mr. Justice

Ijaz ul Ahsan and Hon’ble Mr. Justice Sayyed Mazahar Ali Akber

Naqvi on the Bench. The Hon’ble Judges graciously chose to recuse

themselves from further participating in the proceedings in SMC No.

1/2023 and CPs No. 1 and 2 of 2023. The aforesaid is evident from

paragraph No. 9 of the reasons recorded by Hon’ble Mr. Justice Syed

Mansoor Ali Shah and Hon’ble Mr. Justice Jamal Khan Mandokhel,

released on 27-03-2023. Paragraph No. 9 is reproduced, as follows,

for ready reference:

“9. In the meeting, the two Hon’ble Judges (Ijaz ul Ahsan

and Sayyed Mazahar Ali Akbar Naqvi, JJ.) after

deliberations decided to recuse themselves from the

Bench. It was also considered that the two Hon’ble

Judges (Yahya Afridi and Athar Minallah, JJ.), who had

already made and announced their final decision of

 dismissing the constitution petitions and the suo motu

proceedings on 23.02.2023 and had in their order left it

to the Hon’ble Chief Justice to decide if they were

required to sit through the remaining proceedings in the

following words – “However, I leave it to the Worthy

Chief Justice to decide my retention in the present bench

hearing the said petitions.” Therefore, a Bench

comprising the remaining five Judges of the nine-

member Bench was reconstituted by the Hon’ble Chief

Justice, to simply further hear the case and no specific

order was passed to exclude the two Hon’ble Judges.”

The order released on 27-02-2023 reflected the above

and resulted in resumption of hearing of SMC No.

1/2023 and CPs No. 1 and 2 of 2023 by a five-member

Bench.

Order/Judgment dated 01-03-2023

6. On 01-03-2023, the opinions of remaining five-members were

announced in the open court, detailed reasons followed on 27-03-

2023 (Hon’ble Mr. Justice Syed Mansoor Ali Shah and Hon’ble Mr.

Justice Jamal Khan Mandokhel) and 31-03-2023 (Hon’ble Mr. Justice

Yahya Afridi). Three members of the Bench (Hon’ble Chief Justice,

Hon’ble Mr. Justice Munib Akhtar and Hon’ble Mr. Justice

Muhammad Ali Mazhar) allowed CPs No. 1 and 2 of 2023 and held
in SMC No. 1/2023 that the President is the competent authority to

appoint the date for the general elections to the Provincial Assembly of

Punjab and Governor to do the same for the general elections to the

Provincial Assembly of Khyber Pakhtunkhwa. However, Hon’ble Mr.

Justice Syed Mansoor Ali Shah and Hon’ble Mr. Justice Jamal Khan

Mandokhel had dismissed SMC No. 1/2023 and CPs No. 1 and 2 of

2023. The Federation’s position, as was expressed by the Minister for

Law & Justice as well as the then Attorney General for Pakistan, has

consistently been that by a majority of 4-3, SMC No. 1/2023 and CPs

No. 1 and 2 of 2023 stood dismissed. The Federation’s viewpoint is

supported by the reasons released on 27-03-2023 by Hon’ble Mr.

Justice Syed Mansoor Ali Shah and Hon’ble Mr. Justice Jamal Khan

Mandokhel in the following paragraphs:

“Decision by 4-3 or 3-2 majority

35. We also find it necessary to narrate the reasons for non-

issuance of the Order of the Court in the present case, to make

them part of the record. We believed that our decision

concurring with the decision of our learned brothers (Yahya

Afridi and Athar Minallah, JJ.) in dismissing the present suo motu

proceedings and the connected constitution petitions, had

become the Order of the Court by a majority of 4-3 while our

other three learned brothers held the view that their order was

the Order of the Court by a majority of 3-2. Because of this

difference of opinion, the Order of the Court, which is

ordinarily formulated by the head of the Bench could not be

issued. We are of the considered view that our decision

concurring with the decision of our learned brothers (Yahya

Afridi and Athar Minallah, JJ.) in dismissing the present suo motu

proceedings and the connected constitution petitions is the

Order of the Court with a majority of 4 to 3, binding upon all

the concerned. The answer lies in understanding the

administrative powers enjoyed by the Hon’ble Chief Justice in

reconstituting a Bench, when the Bench once constituted and

assigned a case has commenced hearing of a case. This court

has held in H.R.C. No.14959-K of 2018,that “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.” The Court further held

that “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....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 amember on the bench,

would shake the foundations of a free and impartial justice

system... a bench, once it is constituted and is seized of a matter

on the judicial side, cannot be reconstituted by the Chief Justice

in exercise of his administrative powers, unless a member(s) of

the bench recuses or for reasons discussed above”.

36. We endorse the above view and hold that a Judge forming

part of a Bench once constituted and seized of the case

assigned to it cannot be excluded from that Bench unless he

recuses himself from hearing that case or becomes unavailable

to sit on the Bench for some unforeseen reason. After having

made a final decision on the matter at an early stage of the

proceedings of a case, the non-sitting of a Judge in the later

proceedings does not amount to his recusal from hearing the

case nor does it constitute his exclusion from the Bench. In this

case, the two Hon’ble Judges having decided the matter, left

the option of their sitting or not sitting on the Bench with the

Hon’ble Chief Justice, for further hearing of the case. The

exercise of this option by the Hon’ble Chief Justice has no effect

on the judicial decision of those two Hon’ble Judges passed in

the case. The reconstitution of the Bench was simply an

administrative act to facilitate the further hearing of the case

by the remaining five members of the Bench and could not

nullify or brush aside the judicial decisions given by the two

Hon’ble Judges in this case, which have to be counted when

the matter is finally concluded. It is important to underline that

the two Hon’ble Judges (Ijaz ul Ahsan and Sayyed Mazahar Ali

Akbar Naqvi, JJ.) were not removed from the Bench but had

voluntarily recused themselves. Thus, their short orders are

very much part of the case, therefore, the administrative order

of reconstitution of the Bench by the Hon’ble Chief Justice

cannot brush aside the judicial decisions of the two Hon’ble

Judges who had decided the matter when the case was heard

by a nine- member Bench. Failure to count the decision of our

learned brothers (Yahya Afridi and Athar Minallah, JJ.) would

amount to excluding them from the Bench without their

consent, which is not permissible under the law and not within

the powers of the Hon’ble Chief Justice. Therefore, we are of

the opinion that the dismissal of the present suo motu

proceedings and the connected constitution petitions is the

Order of the Court by a majority of 4 to 3 of the seven-member

Bench. We are also fortified in our opinion by the precedent of

the well-known Panama case. In the said case, the first order of

the Court was passed by a 3-2 majority,and in the subsequent

hearings conducted in pursuance of the majority judgment the

two Hon’ble Judges, who had made and announced their final

decision, did not sit on the Benchbut they were not considered
 to have been excluded from the Bench and were made a party

to the final judgment passed by the remaining three Hon’ble

Judges, and they also sat on the Bench that heard the review

petitions.”

[Emphasis supplied]

Consequence of Dismissal of SMC No. 1/2023 and CPs No. 1 and 2 of 2023

7. As a consequence of dismissal of SMC No. 1/2023 and CPs No. 1 and

2 of 2023, the President is not empowered to appoint the date for

holding general elections to the Provincial Assembly of Punjab nor is

the Governor, Khyber Pakhtunkhwa required to give the date for

general elections to the Provincial Assembly of Punjab. Resultantly,

the ECP order dated 22-03-2023 cannot be questioned in the instant

proceedings. As a result, the instant Petition is liable to be dismissed.

Effect of Order dated 29-03-2023 passed in SMC No. 4/2022

8. A three-member Bench has, vide order dated 29-03-2023 passed in

SMC No. 4/2023, held that hearing in all matters proceeding under

Article 184(3) be postponed till such time, the issues/legal questions

highlighted in the aforesaid order are adequately addressed under

Article 191 of the Constitution. At the time, the aforesaid order was

passed, the proceedings in the instant Petition were continuing.

However, through an administrative circular dated 31-03-2023, the

aforesaid judicial order was overruled. A judicial order or judgment,

 if it is contrary to any law or a binding precedent, can only be

overruled or disregarded by declaring it per incuriam. This can only

be done through another judicial order by a Bench of higher strength,

keeping in view the principle of horizontal precedent and stare decisis.

9. It is respectfully submitted that the circular dated 31-03-2023 is

illegal, unlawful and undermines the integrity of the justice system.

An administrative officer of this Court cannot disregard a judicial

order passed by this Court. If this practice is allowed, it will lead to

extremely dangerous consequences where any executive functionary

can disregard this Court’s order base on his/her understanding of

the judgment.

Composition of the Three-Member Bench

10. When the proceedings in the instant Petition began, they were heard

by a five-member Bench. On 30-03-2023, Hon’ble Mr. Justice Amin

ud Din Khan recused. Upon his recusal, the strength of the Bench

was reduced to a four-member Bench. On 31-03-2023, Hon’ble Mr.

Justice Jamal Khan Mandokhel also recused. In his recusal note, the

Hon’ble Judge has opined that the impact of judgment/order dated

29-03-2023 passed in SMC No. 4/2022 should have been considered

in the Court, maintainability of the instant Petition in light of

dismissal order of SMC No. 1/2023 and CPs No. 1 and 2 of 2023 by a

four-member majority and determination of aforesaid by Full Court

ought to have been considered first.

11. It is respectfully submitted that the instant Petition is a follow up of

SMC No. 1/2023 and CPs No. 1 and 2 of 2023. The President had

appointed 30-04-2023 as the date for general elections to the

Provincial Assembly of Punjab under a mistaken

understanding/reading of the judgment dated 01-03-2023. Hon’ble

Mr. Justice Ijaz ul Ahsan had graciously recused himself from the

aforesaid matters, having already disclosed his mind while taking

suo motunotice in C.P No.3988 of 2022 titled Ghulam Mehmood Dogar

v. Federation of Pakistan etc. Therefore, for the same reasons, he may

graciously consider recusing from hearing the instant Petition, to

meet the ends of justice.

12. The Hon’ble Chief Justice and Hon’ble Mr. Justice Munib Akhtar

were among the three (3) members who had allowed the CPs No. 1

and 2 of 2023 and SMC No. 1/2023. Since, the question of the

primacy/applicability order/judgment dated 01-03-2023 by the

three-members (Hon’ble Chief Justice, Hon’ble Mr. Justice Munib

Akhtar and Hon’ble Mr. Justice Muhammad Ali Mazhar) vis-à-vis

the orders/judgments rendered by four-members (Hon’ble Mr.

Justice Syed Mansoor Ali Shah, Hon’ble Mr. Justice Yayha Afridi,

Hon’ble Mr. Justice Jamal Khan Mandokhel and Hon’ble Mr. Justice

AtherMinallah) has arisen, therefore, it would be in fitness of things

that the Hon’ble Chief Justice and Hon’ble Mr. Justice Munib Akhtar

may also kindly recuse themselves from hearing the instant Petition.
Balancing Articles 224(1) and 218(3) with Article 224(2)

13. The scheme of neutral caretakers to assist the ECP in organizing and

conducting free and fair elections was introduced through the

Constitution (Eighteenth Amendment) Act, 2010 (the “Eighteenth

Amendment”). Prior to the Eighteenth Amendment, the caretaker

governments were appointed by the President and the Governors, in

the center and the provinces, respectively. However, the elections

held under such caretaker governments were always marred by

allegations of rigging. Article 224 (inserted via the Eighteenth

Amendment) and Article 224A (inserted via the Twentieth

Amendment) endeavor to ensure that the mandate and requirement

of Article 218(3) i.e. organizing and conducting free and fair elections

is achieved.

14. To give effect to the scheme of Articles 224 and 224A, the Elections

Act, 2017 contains an elaborate and exhaustive set of powers and

functions that the caretaker governments can and are required to

perform. Section 230 of the Elections Act, 2017 prescribes the

limitation upon the powers and functions of the caretaker

governments. The issue at hand is that the provincial governments

were statedly dissolved to achieve political objective i.e. to force

general elections to the National Assembly. While there is nothing

wrong with such political objective, otherwise, but under the

constitutional scheme, organizing and conducting free and fair

elections in the presence of elected provincial governments in the

Provinces of Punjab and Khyber Pakhtunkhwa may not be possible.

It is true that bye-elections have been organized and conducted in

the presence of elected governments, however, the same may not be

taken as a benchmark to organizing and conducting the general

elections. In the past, there have been instances where allegations of

massive rigging and corrupt practices were made against an elected

provincial government. This question of harmonizing Articles 224

and 218(3) is of first impression and has not been dealt with by the

superior courts of Pakistan. On this count alone, it is appropriate that

the Full Court gives a conclusive finding on this aspect, outlining the

powers and functions that an elected government may perform and

the limitations thereon, in an eventuality where general elections to

the National Assembly are held in the presence of an elected

provincial government, and vice versa.

In view of the foregoing, it is submitted as follows:

I. The instant Petition may kindly be dismissed in view of the

majority (4-3) order/judgment dated 01-03-2023passed in

SMC No. 1/2023 and CPs No. 1 and 2 of 2023;

II. In the alternative, the proceedings in the instant Petition may

kindly be postponed in light of order dated 29-03-2023 passed

in SMC No. 4/2022;

III. This Hon’ble Bench, in view of submissions made in

paragraphs 11 and 12, may graciously recuse from hearing the

instant Petition and a Bench comprising of all remaining

Hon’ble Judges of this Court, who did not hear SMC No.

1/2023, CPs No. 1 and 2 of 2023, may kindly be constituted to

decide the questions raised herein;

Any other order that this Hon’ble Court deems appropriate, under the

facts and circumstances and in view of the submissions made herein

above, may also very kindly be passed.

Filed by:

(MANSOOR USMAN AWAN)

Attorney-General for Pakistan
Islamabad.
3-4-2023