JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD
CASE NO. : CRL. REV. NO.75-2023
Imran Ahmed Khan Niazi
Vs.
District Election Commissioner, Islamabad

Petitioner by : Kh. Haris Ahmed, Sr. ASC, Dr. Yaser Aman

Khan, ASC, Barrister Gohar Ali Khan, ASC,
Ms. Zaynib Ch. and Mr. Salman Ayub,
Advocates
Respondent by : Mr. Muhammad Amjad Pervaiz and Mr. Saad
Hassan, Advocates for Election Commission of
Pakistan with Khurram Shehzad, Additional
D.G. (Law), Masood Sherwani, DG (PF) and
Zaigham Anees, A.D. (Law), Election
Commission of Pakistan.
Date of hearing : 23.06.2023
AAMER FAROOQ C.J. The instant Criminal Revision calls in
question order dated 05.05.2023 passed by learned Additional Sessions
Judge, Islamabad (West), whereby in the criminal complaint filed by
Election Commission of Pakistan (ECP), the application for dismissal of
the same, was dismissed.
2. The brief facts of the matter are that petitioner was elected as
Member National Assembly from Mianwali in the General Elections of
2018. As required under section 137 of the Elections Act, 2017 (the Act),
every Member of National Assembly as well as Senate, has to file a
statement (s) of assets and liabilities. The petitioner accordingly, in
compliance of law, did the needful, however, six Members of the National
Assembly filed a Reference to the Speaker, National Assembly that the
statements of assets and liabilities of the petitioner and his spouse with
respect to the years 2018, 2019, 2020 & 2021, are not correct hence
disqualifications provided in the Constitution of the Islamic Republic of
Pakistan, 1973 (the Constitution) and the Act, are attracted. The Speaker,
National Assembly referred the matter to ECP under Article 63(2) of the
Constitution. ECP, after issuance notice to all, decided the matter on
21.10.2022 and disqualified the petitioner under Article 63(1)(p) of the
Constitution read with sections 137, 167 & 173 of the Act. ECP also
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directed its Office to initiate proceedings against the petitioner under

section 190(2) of the Act. ECP filed a complaint on 07.11.2022 under
section 190(2) of the Act for the offence of ‘corrupt practice’ by the
petitioner as having made a false declaration as to the correctness of the
assets and liabilities. The complaint was lodged through District Election
Commissioner and the learned Additional Sessions Judge, seized of the
matter, after recording cursory statements and examination of the
documents, issued summons/notices to the petitioner. The petitioner, after
entering appearance before the court, moved an application for dismissal of
the complaint on 13.03.2023. In the referred application, the petitioner
took the stance that criminal complaint has been filed without due
authorization and that the same is also barred by limitation in light of law
i.e. section 137(4) of the Act which provides limitation for initiation of
criminal proceedings within 120-days on the submission of statement (s)
of assets and liabilities. The petitioner, on 05.05.2023, filed another
application for rejection of the complaint as being in violation of section
193 of the Code of Criminal Procedure, 1908 (Cr.P.C.); both the
applications were dismissed through consolidated order dated 05.05.2023
(the impugned order). The instant petition assails the impugned order to
the extent of dismissal of application on the basis of ‘limitation’ and
‘authorization’.
3. Learned counsel for the petitioner inter alia contended that the
reasons, which prevailed with learned trial court, are erroneous. It was
submitted that the issues raised were dealt with in an arbitrary manner
without application of mind and taking into account the law on the
subject. While presenting his case qua ‘authorization’, it was submitted
that under section 190(2) of the Act, a complaint can either be filed by ECP
or any person duly authorized; he submitted that since in the instant case,
Commission is the complainant, hence authorization to a person, ought to
have been given only by the Commission, which is not the case. He drew
attention of the Court towards authorization letter dated 07.11.2022
executed by the Secretary, Election Commission of Pakistan to submit that
the referred authorization is inconsequential inasmuch as the same has
been granted by the Secretary, ECP, who is not the Commission. Learned
counsel submitted that under section 6 of the Act, the Commission can act
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through the Chief Commissioner or Commissioner or any officer duly

authorized and stated that authorization can only be given by the
Commission. It was submitted that said District Election Commissioner,
while appearing in the witness box, for the purpose of recording cursory
statement, stated that he derives authority from the decision of the ECP
dated 21.10.2022, whereas documents depict otherwise. Learned counsel
emphasized that it is settled principle that when an act is required to be
done in a particular manner then it has to be done in that manner. He
stated that since complaint has been filed by an unauthorized person, then
the effect of the same is that it is non est i.e. it is nullity in the eye of law and
cannot be proceeded with. Learned counsel took the Court through long
list of case law to substantiate his argument that due authorization and
delegation is of utmost importance in the facts and circumstances. He also
stated that it is also a settled principle that a delegatee cannot further
delegate unless he has the power to do so; elaborating the referred
arguments, learned counsel submitted that the Secretary, Election
Commission could only delegate the District Election Commissioner, if
ECP had authorized him to do so. To support his contentions, learned
counsel made reference to cases mentioned in footnote [1].
4. With respect to question of limitation, learned counsel took the
Court through section 137(4) of the Act to argue that a Member National
Assembly can only be proceeded for ‘corrupt practices’ within 120-days of
the submission of the statement (s) of assets and liabilities; in this behalf,
he submitted that it is for the courts to interpret whether any provision is
mandatory or directory; learned counsel argued that in the instant case,
since a person is to be prosecuted for an offence, hence intention of the
legislation has to be taken that the limitation is mandatory and is not a
mere technicality. It was submitted that generally the statute of limitation
is not applicable in the criminal proceedings but where time cap is
1
The State Vs. Syed Sardar Shah Bukhari (PLD 1975 Lahore 1407), Mst. Nawab Begum Vs. The State
(1972 P.Cr.LJ 79), Ghulam Qadir Vs. The State (1990 P. Cr.LJ 1554), Kadir Bux Vs. The Crown (PLD 1955
Federal Court 79), The State Vs. Muhammad Nasim Baig (1989 P.Cr. LJ 1842), The State Vs. Nooro (1998
P.Cr.LJ 35), The State Vs. Hanif Ahmed (1994 SCMR 749), Liaqat Ali and others Vs. The State (1992 SCMR
372), Christopher Rollins Kelly Vs. The State (1997 P.Cr.LJ 51), The State Vs. Bashir Ahmed Chaudhry
(PLD 2000 Karachi 198), Director, Directorate-General of Intelligence and Investigation Vs. Messrs Al-
Faiz Industries Pvt. Ltd. (2006 SCMR 129), National Accountability Bureau Vs. Fazal Ahmad Jat (2018
SCMR 1005), Erum Naveed Vs. The State (1989 MLD 100), Chairman, Agricultural Development Bank of
Pakistan, Islamabad Vs. Muhammad Khalid Rumani (1988 PLC 825), China Harbour Engineering
Company Limited Vs. Karachi Port Trust (2020 CLC 1817), Messrs Sui Southern Gas Pipelines Limited Vs.
Messrs Noor CNG Filling Station (2022 SCMR 1501)
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introduced same is to be taken and interpreted seriously. Learned counsel

drew attention of the Court to somewhat parallel provision existing in the
erstwhile Representation of Peoples Act, 1976 to argue that no limitation
was provided prior to the present law hence introduction was there for
purpose and that is not to prosecute or punish any Member after lapse of a
particular period of time. It was submitted that in another erstwhile
statute i.e. Senate Elections Act, 1975, limitation was provided and has to
be taken seriously. Reference was made to case law referred in the footnote
[ 2 ]. Learned counsel emphasized again that learned trial court has not
taken into account the relevant provisions of law and dealt with the matter
in a slipshod manner.
5. Learned counsel for ECP controverted the submissions made by
learned counsel for the petitioner and submitted that the complaint has
been filed validly and does not suffer from any legal infirmity. Learned
counsel submitted that ECP is the creation of the Constitution; in this
behalf, reference was made to Article 218 of the Constitution; he also made
reference to Article 218(3) to argue that to hold fair, free and transparent
elections and to prevent corrupt practices, is the paramount duty of ECP.
Learned counsel next submitted that under Article 222 of the
Constitution, ECP is to perform functions as laid down in law and
categorically provides that no law shall have the effect of taking away or
abridging any of the powers of the Commissioner or the Election
Commission. It was argued that to prevent corrupt practices is the most
important duty of the ECP after holding elections, hence any abridgment,
as to punish a Member, who commits the offence, would be in violation of
Article 222 of the Constitution. It was argued that imposing limitation
under section 137(4) of the Act would tantamount to legitimizing an
offence, which can never be the purpose of law, as it is a settled principle
that an offender should never go free. In emphasizing the obligations of
ECP and the status it enjoys under the Constitution, reference was made
to cases footnoted [3].

2
Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of
Pakistan (PLD 1957 SC (Pak) 219), E.A. Evans Vs. Muhammad Ashraf (PLD 1964 SC 536), Atta Muhammad
Qureshi Vs. The Settlement Commission, Lahore Division, Lahore (PLD 1971 SC 61) & Messrs V.N.
Lakhani & Company Vs. M.V. Lakatoi Express (PLD 1994 SC 894).
3
Abdul Malik Vs. The State (PLD 2006 SC 365), Muhammad Rizwan Gill Vs. Nadia Aziz (PLD 2010 SC 828),
Mian Najeeb-ud-Din Owaisi Vs. Amir Yar (PLD 2013 SC 482), Shoukat Aziz Bhatti Vs. Major (R) Iftikhar
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6. In so far as ‘authorization’ is concerned, learned counsel contended

that decision dated 21.10.2022 is an authorization in itself to the officers of
the ECP to file a complaint. It was submitted that since ECP is a
constitutional body, no particular form of authorization is prescribed and
once, through a decision, has expressed its mind to initiate criminal
proceedings that, in itself, is an authorization; without prejudice to the
above arguments, even-otherwise, lack of authorization at the time of
initiation of proceedings is never fatal and can always be either ratified or
examined during course of evidence where the person doing so lacked the
authority. It was submitted that in the instant case, District Election
Commissioner had the requisite authority and the complaint was
accordingly filed. In support of his contentions regarding authorization
and the fact that complaint has been filed in accordance with law,
reference was made to case law mentioned in footnote [4].
7. In rebuttal, learned counsel for the petitioner inter alia contended
that Article 222 (e) of the Constitution does not envisage acting of the sort
as argued by learned counsel for the ECP. He also submitted that it is a
settled principle of interpretation that no words in statute are to be made
redundant and in case limitation is disregarded, that would amount to
making the concept of limitation redundant. It was added that another
petition (W.P. No.4041-2022) is pending before this Court challenging the
order dated 22.10.2022 passed by ECP, in which, inter alia same grounds
have been agitated as in the present petition; hence the instant petition be
heard with the referred petition.
8. Submissions made by learned counsel for the parties have been
heard and the documents, placed on record, examined with their able
assistance.

Mehmood Kiyani (PLD 2018 SC 578), Khawaja Asif Vs.Muhammad Usman Dar (2018 SCMR 2128),
Muhammad Fiaz Khan Vs. Ajmer Khan (2010 SCMR 105), Farooq Yousaf Ghurki Vs. Federation of
Pakistan (PLD 2017 Lahore 159), Chief Settlement Commissioner Vs. Raja Muhammad Fazil Khan (PLD
1975 SC 331), Mst. Athar Jabeen Vs. Deputy Settlement Commissioner (PLD 1993 Lhr 842), Muhammad
Yaqoob Vs. The State (1997 P.Cr.LJ 1979), Khair Din Vs. Mst. Salaman (PLD 2002 SC 677) & Sardar
Muhammad Muqeem Khoso Vs. President of Pakistan (PLD 1994 SC 412)
4
Order dated 14.06.2022 in ICA No.166-2020 in case titled ‘Pakistan Tehreek-e-Insaaf Vs. Election
Commission of Pakistan, Kadir Bux Vs. The Crown (PLD 1955 Federal Court 79), The State Vs. Mian
Muhammad Shahbaz Sharif (PLD 2002 Karachi 8), NAB Vs. Mian Muhammad Abbas Sharif (PLD 2001
Lahore 157), Mir Shakil-ur-Rehman Vs. M/s Creek Developer (PLD 2019 Sindh 670), Bilal Hussain Vs.
President National Bank of Pakistan (2022 SCMR 313), State Bank of Pakistan Vs. Franklin Credit
Investment (2010 SCMR 121), Mrs. Shaheena Shakil Vs. Chairman NAB (2020 P Cr. LJ 1004), Rahat and
Company Vs. Trading Corporation of Pakistan (PLD 2020 SC 366) & Liberty Car Parking Vs. Commissioner
Inland Revenue (2021 SCMR 375).
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9. The controversy, leading to filing of instant Criminal Revision, has

already been spelt out hereinabove hence need not be reproduced.
10. A challenge has been made to the complaint filed by ECP, by the
petitioner, on two scores; firstly that ECP has initiated the matter without
authorization and secondly the complaint is time barred, as it has been
filed after a period of 120-days of the submission of statement (s) of assets
and liabilities.
11. As one can make out from the above submissions by learned counsel
for the parties that elaborate arguments have been addressed on the legal
issues involved and important questions of law have been raised. To sum
up the submissions made by both the parties, legal questions which are
required to be answered are as follows:-
a) whether the complaint has been filed on behalf of ECP by a
duly authorized person;
b) whether the decision of ECP dated 21.10.2022 is a valid
authorization to any officer of ECP to file a complaint;
c) whether the question of authorization is a question of fact and
evidence and can be ratified subsequently during course of
proceedings or is fatal to the complaint making it non est;
d) whether the limitation provided in section 137(4) of the Act is
for complaint under section 190(2) of the Act to both ECP and
any person;
e) the concept of limitation in section 137(4) is only with respect
to ECP initiating criminal complaint and is not mandatory
and is directory;
f) whether introduction of limitation is putting a cap on the
powers of the ECP as provided in Articles 218 (3) and 222 of
the Constitution;
g) whether this Court, while interpreting section 137(4) of the
Act and the provisions of the Constitution, has to see the
effect of limitation;
h) whether limitation is purely a legal question in the facts and
circumstances or makes question of law or facts;
12. The examination of above mentioned issues, on the basis of
arguments made before this Court, clearly shows that same have not been
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addressed by learned trial court and have been brushed aside and/or dealt
with in a very cursory and shoddy manner.
13. The instant petition is under section 439 of the Code of Criminal
Procedure wherein this Court has wide supervisory powers, in fact the
same are wider than the appellate powers, however, in order to interfere, it
is to be seen whether learned trial court has exercised its jurisdiction
properly and dealt with all the issues one way or the other. As noted above,
the examination of the impugned order shows that issues have not been
dealt with in a proper manner, as it should have been and in such a
situation, to substitute the findings, this Court would be supplementing
the findings which would be inappropriate exercise of the jurisdiction as
detailed findings ought to have been given in a proper manner in order for
this Court to examine the same in supervisory jurisdiction whether legal
issues have been dealt with rightly. The Court, in its exercise of
jurisdiction, has the power to do complete justice and should avoid
supplementing the findings. Reference is made to case law reported as
Syed Azmat Ali Vs. The Chief Settlement and Rehabilitation
Commissioner, Lahore (PLD 1964 Supreme Court 260), wherein the
Supreme Court observed that Where a superior Court calls for the records
of judicial or quasi-judicial authorities or Tribunals, which are not subject
to its appellate jurisdiction, the superior Court no doubt has the full power
to do justice but does not as a rule, even in a case where it does interfere,
substitute its own decision for the decisions of the inferior authority or
Tribunal. Where it is felt that questions have been left undecided by such
Tribunal or authority or a question has to be decided after the taking of
fresh evidence, it is more appropriate to return the case to the authority or
Tribunal concerned for a decision in accordance with law, after quashing
the order complained against. In case reported as Anwar Hussain and 5
others Vs. The State (1983 SCMR 233), where the High Court had given
tentative observation but had remanded the matter for decision afresh, the
Supreme Court endorsed the view of the High Court.
14. It is reiterated that learned trial court has left the issues undecided
and has dismissed the application of the petitioner with scanty reasons
which left the main legal issues undecided or unresolved. It would be only
proper for the learned trial court to decide the application afresh after
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hearing the parties with detailed reasons keeping in view the provisions of
Article 10-A of the Constitution as the foremost consideration.
15. In so far as request of the learned counsel for petitioner regarding
hearing of the instant petition with W.P. No.4041-2022 is concerned, the
same cannot be acceded to, as the examination of file in referred case
shows that application for withdrawal has been made in the said petition
due to pendency of writ petition before Lahore High Court against the
decision of ECP dated 22.10.2022.
16. For the above reasons, the instant petition is allowed and the
impugned order to the extent of dismissal of application, mentioned above,
is set aside; consequently, the application in question shall be deemed to be
pending and decided afresh by the learned trial court within seven days
from the receipt of this judgment, keeping in view the law in question and
observations made above.

(CHIEF JUSTICE)

Announced in Open Court on 04.07.2023

(CHIEF JUSTICE)
Zawar