IN THE HIGH COURT OF SINDH, KARACHI
Constitutional Petition No.D – 444 of 2019
PRESENT:
MR. JUSTICE AQEEL AHMED ABBASI.
MR. JUSTICE ZULFIQAR AHMED KHAN.
Aaam Log Ittehad & another
Vs.
The Election Commission of Pakistan & others
Petitioner No.1 through Mr. Muhammad Rizwan Saeed, Advocate
Petitioner No.2 in person
Respondent No.2: through M/s. Muneer A. Malik & Zia-ul-Haq Makhdoom, Advocates.
Respondent No.3 & 4: through Mian Abdul Rauf, advocate
Respondent No.5: through Mr. Mansoor-ul-Haq Solangi, advocate.
Federation: through Khilji Bilal, Assistant Attorney General
a/w Abdullah Hinjrah, Law Officer of
respondent No.1
Date of Hearing: 02.09.2019.
Date of Judgment: 12.06.2020.
J U D G M E N T
Aqeel Ahmed Abbasi, J.: Instant writ of quo-warranto has been filed by petitioner No.1, namely, Aam Log Ittehad, a political party, through its Secretary General, namely, Mr. Azhar Jamil, and petitioner No.2, namely, Mr. Wajihuddin Ahmed [former Judge of Honourable Supreme Court of Pakistan), in his capacity as human rights and political activist, challenging the appointment of respondent No.2 to 5, namely, (i) Justice (Retired) Shakeel Ahmed Baloch, former Judge, Balochistan High Court; (ii) Justice (Retired) Irshad Qaiser, former Judge, Peshawar High Court; (iii) Justice (Retired) Altaf Ibrahim Qureshi, former Judge Lahore High Court; & (iv) Abdul Ghaffar, a former bureaucrat, who according to petitioners, have been appointed in violation of Article 207 of the Constitution of Islamic Republic of Pakistan, 1973, which provides that “a person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office”. While giving particular of respondents No.2 to 5 in the Memo of Petition, it has been stated that respondent No.2, Justice (Retired) Shakeel Ahmed Baloch resigned as Judge of the Balochistan High Court on 21.07.2016, some ten days before his retirement and took oath of office as Member of the Election Commission of Pakistan from Balochistan, five days’ after his resignation. That respondent No.3, Justice (Retired) Irshad Qaiser, became the first ever woman member of the Election Commission within 45 days of her retirement as Judge of the Peshawar High Court on 14.06.2016. That respondent No.4, Justice (Retired) Altaf Ibrahim Qureshi, retired as a Judge of the Lahore High Court on 05.03.2015 and was appointed to the Election Commission of Pakistan in July 2016, before expiry of period of two years’ from the date of his retirement, whereas, respondent No.5, Mr.Abdul Ghaffar, the first ever retired bureaucrat to have been picked as Member of the Election Commission of Pakistan, whose name, according to petitioners, was found on the Exit Control List (ECL) over a Rupees Two Billion alleged corruption case. It has been further stated by the petitioners that respondents No.2 to 5 are otherwise ineligible for the office of Members of the Election Commission of Pakistan, as they were inducted under a covert understanding between the PML(N) and the PPP, whereas, according to petitioners, there has been violation of the Constitutional provisions and parliamentary procedure in the appointment of respondents No.2 to 5. On the above stated grounds, petitioners have sought following:-
“It is therefore, prayed that this Honourable Court may graciously be pleased to issue Orders in the nature of writs of Quo Warranto i.e. under what authority they hold office, against the Respondents No.2 to 5 and, declaring each of them to be holding office without lawful authority, be further pleased to declare their offices vacant and direct the Parliament to duly and properly fill up the four vacancies, thus caused under the Orders of this Honourable Court.”
2. At the preliminary stage of proceedings in the instant case, petitioners were confronted by a Divisional Bench of this Court vide order dated 30.01.2019 to the effect that since respondents No.2 and 5 stood retired w.e.f. 26.01.2019, whether instant petition could still be maintained against such respondents who are no more in public office. In response to which, petitioners submitted that petition could be maintained against such respondents as the petitioners are entitled to seek a declaration for the return of benefits received by the said respondents, in the event their appointment is declared to be illegal or irregular. With hereinabove observations, Notices of instant petition were issued to respondents as well as DAG, which were duly served upon all the respondents, who have been represented through their counsel. Respondent No.2 has been represented by M/s.Munir A . Malik & Zia-ul-Haq Makhdoom, respondents No.3 & 4 have been represented by M/s. Mian Abdul Rauf Law Associates, whereas, respondent No.5 has been represented by M/s. Mansoor-ul-Haq Solangi & Co. Preliminary objections as to maintainability and detailed comments on the averments in the petition have been filed on behalf of all the respondents except respondent No.2. In the comments filed on behalf of respondent No.1 i.e. Election Commission of Pakistan through learned DAG, it has been stated that writ of quo warranto has been filed against respondents No.2 to 5, whereas, no relief has been sought against respondent No.1. However, it has been stated that instant petition is misconceived as appointment of Members of Election Commission is made by the President of Pakistan under Article 218(2)(a)(b) of the Constitution of Islamic Republic of Pakistan, 1973, whereas, provisions of Article 207(2) of the Constitution are not attracted in the instant case, for the reason that the procedure for appointment of Chief Election Commissioner and the Members of the Election Commission of Pakistan has been provided under Articles 213 read with Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, and not under Article 207 of the Constitution. In the comments filed on behalf of respondent No.3, preliminary objection has been raised on the ground that instant petition has been filed with malafide intention, and as a counter blast to the decision rendered by respondents No.2 to 5, against the petitioners, whereby, petitioners were held to be disqualified from contesting the elections. It has been further stated that petition is also hit by laches as it has been filed after inordinate unexplained delay of more than two years from the date of their appointments. It has been further stated that provisions of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973 are not attracted in the instant case, as according to respondents No.3 & 4, the appointment of Chairman and Members of Election Commission of Pakistan is made under Article 213 read with Article 218 of the Constitution. In the detailed comments filed on behalf of respondents No.3 and 4, it has been further stated that the Members of the Election Commission of Pakistan can only be removed by the Supreme Judicial Council in terms of Article 209 of the Constitution of Islamic Republic of Pakistan, 1973, therefore, writ of quo-warranto against respondents is not maintainable, hence liable to be dismissed. Similarly, in the comments filed on behalf of respondent No.5, beside raising objections as to maintainability of petition on various grounds, it has been stated that all the respondents, including respondent No.5 were appointed by the President of Pakistan on the recommendation of the Prime Minister of Pakistan with mutual consent of two largest political parties of Pakistan i.e. PML(N) and PPP, within the framework of Constitution and there is neither any violation of any Constitutional provision, nor there is any malafide on the part of appointing authority in this regard. An objection as to maintainability of instant petition has also been raised on the ground of non-joinder of necessary parties, as according to respondent No.5, neither the President of Pakistan or the Federation of Pakistan have been impleaded as party in the instant case. Without prejudice to aforesaid objections on the maintainability of instant petition, it has been further stated that since, the respondent No.5 stood retired on 26.01.2019, therefore, writ of quo-warranto cannot be issued against such respondent in terms of Article 199(1)(b)(ii) of the Constitution, as he is no more holding the office of profit.
3. All the learned counsel for the parties, including petitioner No.2 appearing in person, as well as the learned Assistant Attorney General, have argued their case in detail, by referring to relevant Constitutional provisions, Election Laws repealed as well as current, and also referred to various judgments of Honourable Supreme Court of Pakistan and judgments of different High Courts to support their respective pleas and the arguments. Their arguments on the legal issues involved in the instant petition can be summarized in the following terms:-
4. According to petitioners, the appointment of respondents No.2 to 5 has been made in violation of Article 207(2) of the Constriction of the Constitution of Islamic Republic of Pakistan, 1973, which provides that “a person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office”. That laches are not attracted in writ petitions of quo warranto, whereas, an illegal appointment in violation of Constitutional provisions can be challenged before this Court under Article 199(1)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973. It has been argued that when instant writ petition of quo-warranto was filed on 29.12.2018, all the respondents were holding their offices as Members of Election Commission of Pakistan, whereas, respondent No.2 and respondent No.5 have retired on 26.01.2019, during pendency of instant petition, whereas, according to the petitioners, while deciding a writ of quo-warranto under Article 199 (2)(b)(ii) of the Constitution, this Court has the authority to issue a declaration to the effect that appointment of respondent Nos.2 to 5 as Members of Election Commission of Pakistan was illegal and in violation of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973, and can also issue directions to respondents to return the salaries and other benefits received by them during the period of their illegal appointment on such post. It has been argued that office of Election Commission of Pakistan is not a judicial or quasi judicial office, on the contrary, it is an
executive office established for the purposes of holding fair and transparent elections of parliament while exercising executive and administrative functions, therefore, the embargo of Article 207(2) i.e. expiry of two years from the date such person ceases to hold that office, is attracted in the case of respondents. In support of such contention, reference to provisions of sub-Article (2) of Article 207 has been made by the petitioners, wherein, according to petitioners, an exception has been created in respect of the office of the Chief Election Commissioner or of Chairman or Member of a law commission or of Chairman or Member of the Council of Islamic Ideology, whereas, according to petitioners, no exception has been created in respect of Members of the Election Commission, which means that Members of Election Commission are not included within the exceptions, therefore, cannot hold any judicial or quasi judicial office before expiry of two years. It has been further argued on behalf of the petitioners that provisions of Part VIII Chapter 1, Article 213 to 218 of the Constitution are neither in conflict nor any overriding effect has been given to such provisions on the provision of Article 207, which are specifically relatable to a Judge of Supreme Court or of a High Court, therefore, the bar of two years under sub-Article (2) of Article 207 is attracted in the case of respondents No.2, 3 and 4, who have been appointed well before expiry of two years from the date of their retirement as Judges of High Courts. In response to an objection raised on behalf of respondents that the appointment of respondents No.2 to 5 cannot be challenged by filing a writ of quo warranto under Article 199, whereas, their removal can only be made by the Supreme Judicial Council of Pakistan through a Reference filed under Article 209 of the Constitution, it has been argued on behalf of petitioners that such objection is misconceived as the Article 209 provides a procedure for removal from service provided such person is found to have been guilty of misconduct and not capable of performing the duties of his office by reason of physical or mentally incapacity. Whereas, according to petitioners, Article 199(1)(b)(ii) of the Constitution is the only remedy, whereby, the very appointment of a holder of public office of profit can be challenged by filing writ of quo warranto. In support of their arguments, petitioners have placed reliance on the following case laws:-
1) Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416)
2) Muhammad Hanif Abbasi v. Imran Khan Niazi (PLD 2018 SC 189)
3) Ibrahim v. The Settlement Commissioner and others (1980 CLC 1245)
4) Muhammad Yaseen v. Federation of Pakistan and others (PLD 2012 SC 132)
5) In the matter of Human Rights Case No.3654/2018 regarding appointment of Managing Director, Pakistan Television Corporation (2019 SCMR 1)
6) Asghar Hussain v. Election Commission of Pakistan (PLD 1968 SC 387)
7) Al-Iblagh Ltd. v. The Copyright Board (1985 SCMR 758)
8) Trading Corporation of Pakistan v. Pak Agro Forestry Corp (2000 SCMR 1703)
9) Sardar Muhammad v. Federation of Pakistan (PLD 2013 Lahore 343)
10) Rashid Latif v. Federation of Pakistan (PLD 2014 Sindh 135)
11) The Federal Government v. Ayyan Ali (2017 SCMR 1179)
5. During the course of hearing instant petition, an application under Order VI Rule 17 CPC was filed on behalf of the petitioners, whereby, petitioners sought amendment in the prayer clause of instant petition, in view of the fact that during pendency of this petition, respondents No.2 and 5 stood retired, therefore, it has been prayed that while taking note of the above factual changes, respondents, who have received the salary along with other financial benefits during the period of their service, are liable to refund the same, to be deposited in the National Exchequer. Notice of the said application was also issued to the respondents, who filed their objections on such application, however, vide order dated 28.06.2019, it was clarified that instead of passing a separate order on such application at this juncture of proceedings when the matter was already heard at length on merits, petition will be finally heard and decided at katcha peshi stage along with all the pending applications, whereas, none of the parties objected to disposal of the listed application along with main petition in the above terms. The matter has been argued in detail by petitioner No.2 and all the learned counsel for the parties, whereas, on behalf of respondent No.2, Mr. Zia-ul-Haq Makhdoom Advocate, argued the case, and Mr. Mansoor-ul-Haq Solangi
Advocate made his submission on behalf of respondent No.5, however, learned counsel representing respondents No.3 & 4, whose name and signatures are available on the power of attorney/Vakalatnama filed by them on behalf of respondent No.3, including M/s. Mian Abdul Rauf, Safdar and Asma Javed Advocates, neither shown appearance in Court, nor argued the case inspite of repeated opportunities provided in this regard, whereas, Ms.Roheela Nazar, whose name and signature are also appearing in the power of attorney/Vakalatnama filed on behalf of respondent No.3 & 4, adopted the arguments of the learned counsel for respondent Nos.2 & 5, and also undertook to file written synopses within three days. However, no such written synopsis were filed, thereafter arguments of the petitioner No.2 and the learned counsel for the parties and the learned Asstt. Attorney General, were finally heard and the judgment was reserved on 02.09.2019.
6. However, before the announcement of the judgment, Registrar of this Court placed on record a letter dated 27.09.2019 issued by Assistant Registrar (IMP), Supreme Court of Pakistan, Islamabad, along with its annexures including gist of order dated 26.09.2019 passed by the Hon’ble Supreme Court in C.P.No.18/2019 (Justice (R) Altaf Ibrahim Qureshi and another v. Aam Log Ittehad and others, which is reproduced hereunder for the sake of reference:-
“ Accordingly, on the one hand, for the lack of an express opportunity of exercising such a right being expressly granted to the petitioners before us (respondent No.3 & 4 in the proceedings of Constitution Petition No.D-444 of 2019) and on the other hand, for the default of the petitioners to produce their counsel for making submissions before the Sindh High Court, we observe that it would suffice if the learned High Court Bench that has reserved the judgment may whilst writing the same take into consideration written submissions that are filed on behalf of the petitioners on or before 30.09.2019. These written submissions shall not include any new material or plea. In the case petitioners do not file their submissions on or before such date in the office of the Registrar of the High Court of Sindh (for their placement on the case file of Constitution Petition No.D-444 of 2019), the learned High Court Bench that has heard the matter may forthwith proceed to announce its judgment at an early date.
This petition stands disposed of in above terms.”
Along with aforesaid letter copies of written arguments on behalf of respondents No.1 as well as on behalf of respondents No.3 and 4 have also been attached, which have also been examined and taken into consideration, while writing instant judgment as per directions of the Honourable Supreme Court of Pakistan as contained in the above order. The gist of the written submission of respondent No.1 is that Election Commission of Pakistan is a Constitutional Body created under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, which besides exercising administrative and executive functions, also performs judicial and quasi-judicial functions as provided under the Constitution of Election Laws. Reference in this regard has been made to Article 63A of the Constitution, Section 103AA of The Representation of the People Act, 1976 (ROPA), Section 4, 9(4) and (5), 166, 202(6) and Section 234 of the Election Act, 2017.
7. In addition to herein above provisions of Constitution, reference to the provisions of Sections 144, 155, 190, 191, 192, 193, 199, 202 and 234 of the Election Act, 2017, has also been made, which provisions relate to powers of Election Tribunal, appeal against the decision of Election Tribunal, cognizance and trial of an offence under the Election Act, 2017, prosecution of offence by public offices and provisions relating to reporting, investigation, summons, warrants, inquiry, trial of an offence or other ancillary matters where any provision does not exist in the Election Act, 2017 or the Rules. It has been argued by the learned counsel for respondents that for the first time permanent Election Commission consisting of Chief Election Commissioner and four members has been constituted after Constitutional (18th Amendment) Act, 2010, whereas, after the judgment in the case of Benazir Bhutto vs. Federation of Pakistan, various amendments have been made in the election laws and the Constitution, whereby power of Tribunals have been given to the Election Commission of Pakistan and appeal against the decision of the Commission has been provided before the Honourable Supreme Court of Pakistan. Reliance has been placed on the case of Aftab Shaban Mirani and others vs. Muhammad Ibrahim & Others (PLD 2008 SC 779) and the case of Raja Shaukat Aziz Bhatti vs. Major (R) Iftikhar Mahmood Kiani and others (PLD 2018 SC 578), whereas, reference has also been made to the case of Shaikh Riaz-ul-Haq and
another vs. Federation of Pakistan and others (PLD 2013 SC 501), wherein, according to learned counsel for respondents it has been held that “as the appeal against the judgment of Tribunal lies before the Honourable Supreme Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, therefore, the Tribunal fall under the judicial hierarchy.” While concluding their arguments in this regard, it has been contended by the learned counsel for respondents that since the appeal against the judgment/order of Election Commission of Pakistan lies before the Honourable Supreme Court under Article 63A of the Constitution and Section 9(5), read with Section 206 of the Election Act, 2017, as well as under Section 103AA(v) of the ROPA, 1976, therefore, while following the same dicta as laid down in the case of Shaikh Riaz-ul-Haq vs. Federation of Pakistan (PLD 2013 SC 501) it may be declared that the Election Commission of Pakistan also falls under the judicial hierarchy.
8. Above contention of the learned counsel for respondents and the objection raised with regard to the maintainability of the instant petition on the ground that the bar of two years as provided under sub Article (2) of Article 207 of the Constitution is not attracted in the case of appointment to the post of Member Election Commission of Pakistan, has been vehemently controverted by the learned counsel for the petitioners who have submitted that if this would have been the case then the framers of the Constitution would not have excluded the office of Chief Election Commissioner from the purview of application of bar of two years after the Judge seizes to hold that office. According to petitioners, in terms of Section 2(ix) of the Election Act, 2017, Commission means the Election Commission of Pakistan constituted under Article 218 of the Constitution of Islamic Republic of Pakistan, 1973, which provides for constitution of a permanent commission, consisting of the Chairman of Election Commission as well as four members, one from each province. It has been further contended by the petitioners that the provisions relating to establishment and jurisdiction of Court as well as Administrative Courts and Tribunals are provided under Chapter-I (the Courts), Part-VII (Judicature) of the Constitution through Articles 175, 302, 212 whereas the provisions relating to the Constitution of Election Commission of Pakistan and the appointment of Chief Election Commissioner
and Members of the Election Commission of Pakistan along with their powers and functions has been provided under Part-VIII (Elections), Chapter-I (Chief Election Commission and Elections) (Commission) under Article 213 to 221 of the Constitution of Islamic Republic of Pakistan, 1973, whereas, under Chapter-II of Part-VIII of the Constitution, the provisions relating to Electoral laws and conduct of elections has been provided under Article 222 to 226 of the Constitution of Islamic Republic of Pakistan, 1973. According to learned counsel for the petitioners, the provisions relating to Constitution of Election Commission of Pakistan, its functions and powers cannot be equated with the provisions relating to the constitution of Election Tribunal and its functions and powers as prescribed by the Constitution and the Election Act, 2017. It has been further contended that mere exercise of some of the powers given under the Election Act, 2017 to the Election Commission of Pakistan, and the powers of a Court including powers to summon witnesses, conduct summary inquiry and call for the evidence would not render the office of Election Commission of Pakistan as a judicial or quasi-judicial office. According to the petitioners such interpretation besides being contrary to various judgments of the Honourable Supreme Court of Pakistan, is contrary to various provisions of the Election Act, 2017, which clearly provide that the Commission exercises its powers and perform its functions to ensure holding of fair elections while exercising executive authority, and also to decide complaints, election disputes in accordance with law, therefore, such exercise of authority by the Election Commission of Pakistan does not fall within the definition of judicial or quasi-judicial functions. Reliance in this regard has been placed on the case of Benazir Bhutto vs. Federation of Pakistan (PLD 1988 SC 416) and Muhammad Hanif Abbasi vs. Imran Khan Niazi and others (PLD 2018 Supreme Court 189).
9. Before examining the merits of instant petition, we may first address the preliminary objections raised by the respondents with regard to maintainability of instant petition, which have been premised on the following grounds:-
(i) Petitioner has no locus standi to file instant petition as they are not aggrieved person and also lack bonafide in approaching the Court
under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
(ii) Petition has been filed with malafide intention and as counter blast of the decision rendered by the respondents No.2 to 5, whereby, the petitioners to contest the election.
(iii) Petition is hit by principle of latches as the appointment of respondents No.2 to 5 were made vide Notification issued in July, 2016, whereas, instant petition has been filed on 29.12.2018.
(iv) Writ of quo-warranto, instant petition is otherwise not maintainable as respondents No.2 and 5 already stand retired on 26.01.2019, therefore, writ of quo-warranto, which is attracted against the person holding or performing to hold a public office cannot be issued against a person, who already retired from such public office.
(v) Constitution Petition under Article 199 of the Constitution is not maintainable before this Court as respondent Nos.2 to 5 do not belong to the province of Sindh, who took oath either office at Islamabad and assume their charge of duty at Islamabad and performing their duty at Islamabad, therefore, this Court lack territorial jurisdiction to adjudicate upon the present petition.
10. Learned counsel for the respondents referred to an incident, which according to them was reported in the large number of National Newspapers and also flashed on the National Media, according to which, there was exchange of hot words between petitioner No.2 and the Chief Election Commissioner of Pakistan during their meeting in relation to an election dispute, therefore, according to learned counsel for the respondents, petitioner No.2 developed a personal grudge, therefore, through instant petition, petitioners intend to ventilate the same. Reference to some adverse decision against the petitioners and their party by the Election Commission of Pakistan was also made, however, copy of same has not been placed on record, nor it was seriously agitated by respondents as one of the ground to demonstrate malafide on the part of the petitioners. We may observe that while attributing malafide against any person, seeking enforcement of fundamental rights as guaranteed under the Constitution, a great responsibility is cast upon such objector to establish such malafide either on the face of record, or through some concrete and undisputed material before
the Court, convincing enough to accept such allegation of malafide. However, mere allegation of malafide, in the absence of any factual or lawful basis, cannot be considered as a sole ground for dismissing a Constitutional Petition without examining the merits of the case. In a writ of quo-warranto, Court is obliged to examine the constitutional and legal points agitated by any person invoking the Constitutional jurisdiction under Article 199 of the Constitution. In the instant case, petitioners, instead of pointing out any misconduct of the Chief Election Commissioner or Members of the Election Commission of Pakistan, have simply challenged their appointment on constitutional plain, by referring to relevant provisions of Article 207, 213 to 218 of the Constitution, as well as provisions of relevant Election Laws by placing reliance on the judgments of superior Courts on the subject controversy. While making their submission, petitioners have given emphasis only to the requirements of law and the application of relevant constitutional provisions, and have abstained from making personal allegations against the respondents, which prima-facie shows that the allegation of personal grudge of the petitioners, against the respondents No.2 to 5 is ill founded and not supported by any convincing material on record of instant petition. It will not be out of place to observe that in a writ of quo-warranto filed under Article 199(i) (b) (ii) of the Constitution, whereby, petitioners have not sought any relief in their favour, and have challenged the appointments of respondents No.2 to 5 as Members of Election Commission of Pakistan, who are constitutional appointees, saddled with honorous responsibility of holding fair and transparent elections in the country, to allege malafide, instead of establishing the constitutionality and legality of the appointment process vis-à-vis their eligibility to hold the public office of such high stature, is otherwise evasive and baseless. Without prejudice to hereinabove, we have no hesitation to further observe that unless contrary is proved through evidence or established from face of record, attributing malafide to the petitioners, one of whom has been a former Judge of the Honourable Supreme Court of Pakistan, whose entire professional career as a lawyer, and his judicial career also as a Judge of Sindh High Court and Supreme Court of Pakistan, was not only unblemished but also exemplary for the Bar and Bench both. There can be hardly any difference of opinion about his implacable
character and integrity. Raising an objection by attributing malafide on the part of petitioners in the instant case, besides being baseless is also unwarranted. The objection as to maintainability on the allegation of malafide on the part of the petitioners is hereby, over-ruled.
11. Another objection as to maintainability of instant petition on the ground of laches has also been raised by the respondent for the reason that appointment of the respondents No.2 to 5 was made somewhere in July, 2016, whereas, instant petition has been filed on 29.12.2018, therefore, according to respondents, instant petition is liable to be dismissed on the point of laches above. There is distinction between limitation, provided under Limitation Act or under a particular law, and laches, whereas, the principle relating to limitation and of laches are different and distinct. There is no cavil to the preposition that period of limitation creates a substantial right in favour of succeeding party, therefore, the same cannot be overlooked or condoned to the disadvantage of succeeding party and to favour a defaulting party, unless strong valid reason for delay beyond the control of the party, have been explained. However, while examining the laches, particularly, in case of a Constitutional Petition of quo-warranto under Article 199(I)(b)(ii) requiring or calling a person holding public office to show under what authority of law he/she claims to hold that office, the delay does not operate as a bar, for the reason that Authority of the Court to examine the validity of an appointment to a public office, on constitutional and legal grounds, cannot be curtailed on technicalities or delay in bringing such cause before the Court. Therefore, delay, if any, requiring the Court to make a judicial review of an appointment of a person to a public office would not operate as a bar, and to dismiss such Constitutional Petition on the sole ground of laches. Moreover, in case of a writ of quo-warranto, cause of action is a recurring one, as the holder of a public office continues to hold such office until he retires or vacates public office, therefore, it can be called any question during such period when he continues to occupy such public office. It will not be out of place to observe that in a writ of quo-warranto, the message is more important than the messenger, therefore, the conduct or antecedent of a petitioner becomes subservient to the cause of justice and the authority of this Court to make a judicial review in respect of appointment of a person to a public office. Accordingly, objection with regard to laches raised by the respondents is hereby over-ruled.
12. Maintainability of instant petition has also been challenged on the ground of lake territorial jurisdiction of this Court. According to respondents, this Court has no jurisdiction under Article 199 of the Constitution in respect of respondents No.2 to 5 as (i) the meeting of Parliamentary Committee for nomination of Members of Election Commission of Pakistan was held in Islamabad and Members were nominated as result of the meeting at Islamabad; (ii) Notification of appointment of Members was also issued by the Law & Justice Division, Islamabad; (iii) the Members of Election Commission took oath of their office at Islamabad and assumed their charge of duties at Islamabad and also performing their duties at Islamabad; (iv) none of the sitting members belong to the Province of Sindh, whereas, Members of Province of Sindh and Balochistan have retired in January 2019. It is pertinent to note that for the purposes of writ of quo-warranto, the focus has to be on the jurisdictional locale of the public office rather than the physical presence of such office hold by a person against whom a writ of quo-warranto is filed. Geographical location of the individual holding a public office is of little significance, whereas, real test is to see the geographical extent of the jurisdiction enjoyed by the “public office”.
The issue relating to territorial jurisdiction of an office of Federal Government came up for consideration before the Hon’ble Supreme Court in the case of Messrs Al-Iblagh Limited, Lahore v. The Copyright Board, Karachi and others (1985 SCMR 758), wherein, the Hon’ble Supreme Court has been pleased to hold as under:-
“ The rules laid down in the said case would, we think, be applicable also in the circumstances of this case. The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case.
The learned Deputy Attorney-General, Mr. Munir A. Sheikh, who appeared on behalf of the respondent-Copyright Board, supported this interpretation of the constitutional provision in question and submitted that the writ petition filed by the appellant before the Lahore High Court should not have been dismissed for lack of jurisdiction by the said High Court, as it also had jurisdiction to entertain it, concurrently with the Sind High Court.
We agree and are of the opinion that both the Lahore High Court as well as the Sind High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law.”
In another recent judgment of the Hon’ble Supreme Court in the case of The Federation Government through Secretary Interior, Government of Pakistan v. Ms. Ayyan Ali and others (2017 SCMR 1179), while dealing with an objection as to territorial jurisdiction of Sindh High Court under Article 199 of the Constitution has been pleased to hold as under:-
“4. As regards the question of territorial jurisdiction, it hardly need any emphasis that the impugned Notification/Memorandum has been issued by the Federal Government, which functions all over the country, and since the respondent No.1 resides in Karachi, and has a right and choice to proceed abroad through Jinnah International Airport, Karachi, and in fact atleast twice earlier she had proceeded to go abroad through Jinnah International Airport, Karachi, though she was stopped owing to the earlier Notifications/Memorandums, and therefore the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood, was to be repeated at Karachi in pursuance of the third Notification/Memorandum, and thus giving rise to a cause of action against the third Notification/Memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence of location at Islamabad, would still be deemed to function all over the country.
Further reference in this regard can also be made to the cases of (i) Asghar Hussain v. (1) The Election Commission Pakistan, (2) Mofizuddin Ahmad (Ex-Minister of Education, Government of East Pakistan) AND (3) Abdul Awal Bhuiyan (PLD 1968 Supreme Court 387) (ii) Trading Corporation of Pakistan (Private) Limited v. Pakistan Agro Forestry Corporation (jPrivate) Limited and another (2000 SCMR 1703), (iii) Rashid Latif v. Federation of Pakistan and others (PLD 2014 Sindh 135) and (iv) Barrister Sardar Muhammad v. Federation of Pakistan and others (PLD 2013 Lahore 343).
The purpose of providing writ of quo-warranto under the Constitution in terms of Article 199(1)(b)(ii) is to protect the sanctity of the public office by safeguarding against unlawful appointment and to provide judicial remedy to be invoked by any person, not necessarily an aggrieved party, a whistle blower, to examine as to under what authority of law such person claims to hold that office. Accordingly, we are of the opinion that objections raised by the respondents as to maintainability of instant petition on various grounds as discussed hereinabove are without any factual or legal justification, therefore, stand over ruled.
13. We would now examine the relevant provisions of the Constitution, including Article 207, 213 and 218 of the Constitution as well as the provisions of Election Act, 2017 to appreciate the nature and functions performed by Election Commission of Pakistan, and would also examine as to whether, the bar of two years would be attracted in terms of Article 207(2) of the Constitution for appointment of a Judge of Supreme Court or of a High Court as a Member of Election Commission of Pakistan, said provisions read as follows:-
207. Judge not to hold office of profit, etc. – (1) A Judge of the Supreme Court of or a High Court shall not –
(a) hold any other office of profit in the service of Pakistan if his remuneration is thereby increased; or
(b) occupy any other position carrying the right to remuneration for the rendering of services.
(2) A person who has held office as a Judge of the Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office, or the office of Chief Election Commissioner or of Chairman or member of a law commission or of Chairman or member of the Council of Islamic Ideology, before the expiration of two years after he has ceased to hold that office.
(3) A person who has held office as a permanent Judge –
(a) of the Supreme Court, shall not plead or act in any court or before any authority in Pakistan;
(b) of a High Court, shall not plead or act in any court or before any authority within its jurisdiction; and
(c) of the High Court of West Pakistan as it existed immediately before the coming into force of the Province of West Pakistan (Dissolution) Order, 1970, shall not plead or act in any Court or before any authority within the jurisdiction of the principle seat of the High Courtor, as the case may be, the permanent bench of that High Court to which he was assigned.
213. Chief Election Commissioner. – (1) There shall be a Chief Election Commissioner (in this Part referred to as the Commissioner), who shall be appointed by the President
(2) No person shall be appointed Commissioner unless he has been a judge of the Supreme Court or has been a senior civil servant or is a technocrat and is not more that sixty-eight years of age.
(2A). The Prime Minister shall in consultation with the Leader of the Opposition in the National Assembly, forward three names for appointment of the Commissioner to a Parliamentary Committee for hearing and confirmation of any one person.
Provided that in case there is no consensus between the Prime Minister and the Leader of the Opposition, each shall forward separate lists to the Parliamentary Committee for consideration which may confirm any one name:
(2B) The Parliamentary Committee to be constituted by the Speaker shall comprise fifty percent members from the Treasury Benches and fifty percent from the Opposition Parties, based on their strength in Majlis-e-Shoora (Parliament), to be nominated by the respective Parliamentary Leaders:
Provided that the total strength of the Parliamentary Committee shall be twelve members out of which one-third shall be from the Senate.]
Provided further that when the National Assembly is dissolved and a vacancy occurs in the office of the Chief Election Commissioner, the 5[total membership of the Parliamentary Committee shall consists of] the members from the Senate only and the foregoing provisions of this clause shall, mutatis mutandis, apply.
(3) The Commissioner [or a member] shall have such powers and functions as are conferred on him by the Constitution and law.
218. Election Commission.—1[(1) For the purpose of election to both Houses of Majlis-e-Shoora (Parliament), Provincial Assemblies and for election to such other public offices as may be specified by law, a permanent Election Commission shall be constituted in accordance with this Article.]
[(2) The Election Commission shall consist of,—
(a) the Commissioner who shall be the Chairman of the Commission; and
[(b) four members, one from each Province, each of whom shall be a person who has been a judge of a High Court or has been a judge of a High Court or has been a senior civil servant or is a technocrat and is not more than sixty-five years of age, to be appointed by the President in the manner provided for appointment of the Commissioner in clauses (2A) and (2B) of Article 213.
Explanation.—“senior civil servant” and “technocrat” shall have the same meaning as given in clause (2) of Article 213.]
(3) It shall be the duty of the Election Commission 4[****] to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against.
14. Since through instant petition the appointment of four Members of Election Commission of Pakistan from each province is under challenge in view of sub-Article (2) of Article 207 of the Constitution of Islamic Republic of Pakistan, 1973, mainly on the ground that office of Election Commission of Pakistan is not a judicial or quasi-judicial office, therefore, the bar of two years after the person who has held the office as a Judge of Supreme Court or of a High Court shall not hold any office of profit in the service of Pakistan is attracted in the case of respondents No. 2 to 4 (retired Judges of High Courts), therefore, we would examine the nature of the office of Election Commission of Pakistan as to whether the office of Election Commission of Pakistan is a judicial and/or quasi-judicial office, or its Members perform the supervisory or Administrative functions only.
15. Performance of judicial functions primarily, is the domain of Judicature through Constitutional appointment of Judges of Superior Courts duly established under Article 175 of the Constitution of Islamic Republic of Pakistan, 1973, or through Judges and the Presiding Officers, appointed under any other enactment relating to constitution of Civil Courts and/or Criminal Courts accordingly. Whereas, similar judicial functions have also been assigned to the Judges or the Presiding Officers, appointed as Members of Administrative Courts and Tribunals constituted under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Under the Election Laws, currently the Election Act, 2017, for resolution of election disputes, election petition can be filed under Section 139 of the Election Act, 2017, by a candidate for that election to call in question the election before a Election Tribunal constituted under Section 140 of the Election Act, 2017, comprising of a person, who is or has been a Judge of High Court in the case of an election to an Assembly or the Senate, whereas, a District and Sessions Judge to an election to Local Government, whereas, the Commission is under legal obligation to appoint a sitting Judge as Election Tribunal in consultation with the Chief Justice of the High Court concerned. Procedure and appearance before the Election Tribunal for trial of petition has been provided under Section 145, Section 146 and Section 148 of the Election Act, 2017, whereas, the perusal of above mentioned Sections reflects that proceedings before the Election Tribunal are Judicial in nature as it determines the rights of a party through inquiry, recording of evidence in appropriate cases and to decide the election disputes after hearing the parties judicially in accordance with law. Moreover, the provisions of Qanoon-e-Shahadat Ordinance, 1984 as well as provisions of Civil Procedure Code 1908, Pakistan Penal Code, 1860 and Code of Criminal Procedure, 1898, have been made applicable for performing their duty as Member of Election Tribunal. Section 154 of the Election Act, 2017, provides for decision of the Election Tribunal upon the conclusion of the trial of an election petition, whereas, in terms of Section 155 of the Election Act, 2017, any aggrieved person by a final decision of Election Tribunal in respect of election petition challenging election to an Assembly or Senate, within, 30 days of the date of decision, can file an appeal to the Supreme Court of Pakistan, whereas, in respect of election petition challenging election to a Local Government an aggrieved person, within, 30 days of the date of decision, can file an appeal to the High Court having jurisdiction. Therefore, we may conclude that proceedings before the Election Tribunal as referred to hereinabove are Judicial in nature, hence, the Election Tribunal is a judicial forum for resolution of election disputes in accordance with law. The nature of the office and the orders passed by the Election Commission of Pakistan was examined by the 11 Members bench of the Hon’ble Supreme Court of Pakistan in the case of Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 Supreme Court 416), wherein, while examining the vires of provisions regarding registration of a polit9ical party and the powers of Election Commission to cancel the registration of political party, it has been held as under:-
“ It hardly needs to be pointed out as observed in the case of Abdul Wali Khan that the framers of the Constitution and the legislature while incorporating subsection (2) of section 6 in 1974 “intended to assure all political parties that the right so essential for the establishment of parliamentary democracy would not be interfered with except upon the decision of the Court of law and that too the highest Court of the country.” The intervention of the Election Commission, which is certainly not a judicial body, in the operation of political parties, is, therefore, unwarranted and unreasonable restriction, violative of the fundamental right in question. The scheme of the amendments impugned before us even provides for the disqualification of a political party under section 3-C of the Political Parties Act, which does not apply for registration. Accordingly a political party can be called upon to answer a questionnaire and forced to comply with the requirements of section 3-B. If the Commission comes to the conclusion that the party has failed to fulfill the requirements applicable to register a party such political party may also be debarred from participating in an election. This provision stands on the same footing as the provisions regarding registration. However, it was rightly conceded that the provisions of section 3-C were in terms temporary in nature, applicable to the then forthcoming election held in 1985.”
This aspect of the matter has also been dealt elaborately by a recent judgment of the Hon’ble Supreme Court in the case of Muhammad Hanif Abbasi v. Imran Khan Niazi and others (PLD 2018 Supreme Court 189), wherein, while making reference to the earlier decision of the Hon’ble Supreme Court in the case of Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 Supreme Court 416), it has been held as under:-
“44. The ECP is a constitutional body created under Article 218 of the Constitution, sub-Article (3) whereof provides:
"It shall be the duty of the Election Commission to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against."
The ECP's duties are contained in Article 219 of the Constitution and include, inter alia:-
(e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament):
Although the PPO is the Chief Executive's Order (No.18 of 2002), one may argue that it is not an Act of Parliament. We find that considering the period and the circumstances in which the PPO was passed, this edict falls within Article 270AA(2) of the Constitution and has thereby been saved and declared by the said Article to continue in force. The PPO has accordingly been given due status in law. The provisions of the PPO specify the functions of the ECP in relation to matters pertaining to the formation and regulation of political parties. As mentioned above, Article 19 of the PPO has given the ECP rule-making power but exercisable subject to the approval of the President. The ECP is an independent and autonomous body which exercises executive and regulatory powers derived from the Constitution. Though it has the power to appoint Election Tribunals [Article 219(c) of the Constitution] which exercise judicial powers under Article 225 of the Constitution, the ECP itself is a supervisory body which exercises regulatory and administrative powers under the Constitution and the law.
45. Undoubtedly, the ECP is not a Court or a Tribunal as argued by the learned counsel for PTI. However, he conceded that ECP is an administrative authority and in terms of Article 17(3) of the Constitution it is the forum to which political parties are obliged to and must account for the sources of their funds. Besides being a limb of the executive that is charged with the duty to conduct and oversee elections in the country, we find that the ECP must necessarily possess the power to collect facts, information and data that enable it to properly and effectively perform such duty. Such a capability represents the constitutional and inherent legal power of the ECP. Therefore, in exercise of its powers under Article 6 of the PPO read with Rule 6, the ECP has all the necessary authority to ask for and collect the requisite information and facts that enable it to decide and determine whether the contributions or donations accepted by a political party are prohibited under Article 6(3) supra. Without such power, we are of the opinion that the ECP's power to decide as to whether a political party is receiving contributions or donations from sources prohibited under Article 6(3) ibid would for all practical intents and purposes be rendered redundant, nugatory and ineffective. Such a result would be against the clear command of Article 17(3) of the Constitution and the provisions of the PPO and the Rules.
16. It is pertinent to note that in the above cited judgment, the matter related to funds and donations received by a political party only, whereas, the issue in hand relating to the nature of forum of Election Commission of Pakistan has not been dealt with in detail. We may, therefore, now examine as to whether, the proceedings before the Election Commission of Pakistan, meet the criteria of quasi-judicial proceedings in the light of various definitions given in Law Dictionaries and the judicial pronouncements to this effect. The term “Quasi Judicial” has been defined in Prem & Saharay’s Judicial Dictionary of words and phrases as describing a function that resembles the judicial function in that it involved deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of law. The expression ‘quasi judicial’ has been termed to be one which stands midway a judicial and an administrative function. The test whether an authority is quasi judicial is: (i) that the body of persons must have legal authority, (ii) authority must be given to determine the rights of the subjects or citizens, and (iii) such a body should have the duty to act judicially. Whereas, the terms “Quasi Judicial Authority” has also been defined in the same dictionary in the following terms:
“Where there are two or more parties contesting each other’s claim and the statutory authority is required to adjudicate the rival claims between the parties, which a statutory authority can be held to be quasi judicial and the decision rendered by it as a quasi judicial order. Thus, where there is a lis between the two contesting parties and the statutory authority is required to decide such a dispute, in absence of any other attributes of a quasi judicial authority, such a statutory authority is a quasi judicial authority. The legal principles which emerge from the various judgments laying down when an act of a statutory authority would be a quasi judicial act are that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi judicial. In other words, an authority is described as quasi judicial when it has some attributes or trappings of judicial provisions but not all.”
In Judicial Dictionary by K J Aiyer’s [A Complete Law Lexicon] Thirteenth Edition, the term Quasi Judicial has been defined as under:-
“The criteria to ascertain, whether a particular act is a judicial act or an administrative one, have been laid down with clarity by Lord Justice Atkin in Rex v. Electricity Commissioner, ex parte London Electricity Joint Committee Co [1924] 1 KB 171 elaborated by Lord Justice Scrutton in Rex v. London County Council, Ex parte Entertainments Protection Association Ltd (1931) 2KA 215 and authoritatively restated by the Supreme Court in Province of Bombay v. Khushaldas S Advani [1950] SCR 621, AIR 1950 SC 222. They laid down the following conditions: (i) the body of persons must have legal authority; (ii) the authority should be given to determine questions affecting the rights of subjects; and (iii) they should have a duty to act judicially. In ss 68-C and 68-D of the Road Transport Act, the Act imposes a duty on the state government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking. The said two provisions, ss 68-C and 68-D, comply with the three criteria of a judicial act. [Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 at 321, 322 & 323].”
In a Dictionary titled as Words and Phrases Permanent Edition Volume 35A by West Publishing Co., while defining the term Quasi Judicial Body reference has
been made to the finding as recorded in the case of Boord v. Maurer, 22 A.2d 905, 906, 343 Pa. 315, which read as follows:-
“The section of Election Code, providing that nomination petition or paper, received and filed within period limited by act, shall be deemed valid, unless petition to set it aside is presented to common pleas court within five days after last day for filing it, does not vest in such court, instead of county election board, jurisdiction of subject matter of petition to strike from record written withdrawal of nominee for township office, as such withdrawal is not a “paper received and filed“ within such section and such board, which is “quasi-judicial body”, not mere “ministerial body”, has reasonable time after physical receipt of paper to determine validity thereof.”
In the same dictionary the term Quasi Judicial Function has been defined as follows:-
“Quasi judicial functions” are those which lie midway between the judicial and ministerial ones. Parker v. Kirkland, 18 N.E.2d 709, 714, 298 III.App. 340. Functions of Railroad Commission in determining how best to conserve natural resources of state are “quasi judicial”. Carr v. Stringer, Tex.Civ.App., 171 S.W.2d 920, 922.
A public service commission is an “administrative body” whose duties demand the exercise of “quasi-judicial functions”. Village of Bridgeport, Ohio, v. Public Service Commission, 24 S.E.2d 285, 287, 125 W.Va. 342.
A “quasi judicial function” exists where officer is charged with looking into and acting upon the facts, not in a way which the law specifically directs but after a discretion in its nature judicial. Parker v. Kirkland, 18 N.E.2d 709, 714, 298 III.App.340.
Action of county commissioners is passing upon county treasurer’s request for whole and part-time help to operate his office constituted a “quasi-judicial function”, entitling aggrieved party appeal board’s decision to district court for trial de novo. Gray v. Board of County Com’rs of MeIntosh County, Okl., 312 P-2d 959, 960.
A “quasi judicial power” is one imposed upon an officer or a board involving the exercise of discretion, judicial in its nature, in connection with and as incidental to the administration of matters
assigned or intrusted to such officer or board. Green v. Board of Com’rs of Lincoln County, 259 P. 635, 637, 126 Okl. 300.
In the case of Major (Retd.) Abdul Rauf Khan v. Justice (Retd.) Salah-ud-Din Mirza Provincial Ombudsman, Sindh and another reported as 1998 CLC 1225, a Divisional Bench of this Court while examining the appointment of a retired Judge of High Court as Provincial Ombudsman Sindh within period of two years of his retirement has been pleased to hold that since the Office of Provincial Ombudsman Sindh, even if not a judicial office in all the connotations of that term was at the minimum, a quasi judicial office, therefore, no contravention of Article 207 (2) of the Constitution had come into play by appointing retired Judge of High Court within two years’ period of his retirement and accordingly, writ petition in the nature of quo-warranto was dismissed. It will be advantageous to reproduce hereunder the reasons, which found favour with the learned Divisional Bench of this Court while reaching to the conclusion that office of Provincial Ombudsman Sindh is a quasi judicial office, which read as follows:-
“ Now, it has to be seen as to what are the connotations of a judicial or quasi judicial office. A judicial office necessarily carries with it the function of exercising discretion or judgment. The subject‑matter of such discretion or judgment embraces rights, obligations or proprietary matters. Incidents of hearing and determination or adjudication are also involved. On the other hand, a quasi judicial office denotes an administrative office, endowed with a jurisdiction to investigate or ascertain facts on the basis of hearing, assessment of evidence and drawing of a conclusion, which is the foundation of action or exercise of discretion of a judicial nature.
The crucial question, therefore, is whether the office of the Provincial Ombudsman, as created by the Establishment of the Office of Ombudsman for the Province of Sindh Act, 1991, is or is not a judicial or quasi judicial office. For the purpose it would be necessary to examine the statutory functions which the Ombudsman has to perform. In the first place, under section 3 of the enactment the appointment is made by the Governor of the Province and the Ombudsman is required to take the prescribed oath before the Governor. Subsection (3) of section 3 postulates that the ombudsman shall, in all matters, perform his functions end exercise his powers fairly, honestly, diligently and independently of the executive. All executive authorities throughout the Province would be obliged to act in aid of the Ombudsman. The post of the Ombudsman is a tenure post under section 4 of the Act and such tenure of four years is neither extendable nor a re‑appointment is permissible. What is more, under section 5 of the same statute the Ombudsman is precluded from holding any office of profit in the service of Pakistan or to occupy any position carrying the right to remuneration. Likewise, the Ombudsman shall not hold any office of profit in the service of Pakistan before expiry of two years after he has ceased to hold that office. These postulates are akin to and obviously in line with the prohibitions contained in Article 207(1) and (2) of the Constitution. Under the succeeding section 6, while the Ombudsman may be removed from the office by the Governor on grounds of misconduct, the Ombudsman may request for an open public evidentiary hearing before the Supreme Judicial Council and if such a hearing is not accorded within thirty days of the receipt of the request or not concluded within 90 days of its receipt, the Ombudsman would stand absolved of any or all stigma whatsoever. As to jurisdiction, in terms of section 9, the Ombudsman has powers to, upon being moved or on his own motion, undertake any investigation into any allegation of maladministration on the part of an agency or any of its officers or employees, there being some exceptions as postulated. Under section 11 the Ombudsman is empowered to communicate his findings and seek implementation in various ways. In case of defiance of recommendations the Ombudsman may also seek implementation thereof under section 12. The Ombudsman exercises the powers of a Civil Court in matters specified by section 14 of the Act and that includes, summoning and enforcing the attendance of any person and examining him on oath, compelling the production of document; receiving evidence on affidavit and issuing commissions for examination of witnesses. The Ombudsman under the same provision also has power to award compensation in the event a complaint is found. to be false, frivolous or vexatious. Under section 16 of the Statute the Ombudsman has been vested with powers, to impose punishment for contempt, mutatis mutandis, as those of the High Court. Per section 22 of the Act, the Ombudsman has been empowered to award costs and compensation to aggrieved persons.
Applying the criteria discussed above on the quoted provisions, it would appear that the Ombudsman under the 1991 Statute, at the minimum, exercises quasi judicial powers. As seen, he can act either on being moved or even suo motu. He has the powers of a Civil Court for the purpose of recording evidence. He can make recommendations, and take other suitable actions upon the evidentiary material produced before him. Much like a Judge of a superior Court he cannot hold any office of profit during his incumbency, his statutory tenure cannot be extended, he cannot be re‑appointed nor is he eligible for appointment to an office of profit for a term of two years following upon the efflux of his tenure. His orders are appealable, obviously being speaking orders.
It, therefore, seems to us that the office of the Ombudsman, even if not a judicial office in all the connotations of that term, such is, at the minimum, a quasi judicial office. As a result no contravention of Article 207(2) of the Constitution has come into play.”
17. Under the Constitution of Islamic Republic of Pakistan, 1973 and Election Laws, Election Commission of Pakistan has mixed powers including the duty to organize and conduct the election and to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. Some of the relevant provisions of the constitution and election laws relating to the judicial and quasi-judicial powers of Election Commission of Pakistan are reproduced as under:-
Article 63A of the Constitution : Disqualification on grounds of defection, etc.
(5) Any party aggrieved by the decision of the Election Commission may, within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of filing of the appeal.
Section 103AA of the ROPA 1976 is reproduced as under:
103AA. Power of Commission to declare a poll void.--(1) Notwithstanding anything contained in this Act, if, from facts apparent on the face of the record and after such summary inquiry as it may deem necessary, the Commission is satisfied that, by reason of grave illegalities or violation of the provisions of this Act or the rules, the poll in any constituency ought to be declared void, the Commission may make a
declaration accordingly and, by notification in the official Gazette, call upon that constituency to elect a member in the manner provided for in section 108.
(2) Notwithstanding the publication of the name of a returned candidate under sub-section (4) of section 42, the Commission may exercise the powers conferred on it by sub-section (1) before the expiration of sixty days after such publication; and, where the Commission does not finally dispose of a case within the said period, the election of the returned candidate shall be deemed to have become final, subject to a decision of a Tribunal.
(3) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII, regulate its own procedure.
(4) An appeal against the decision of the Commission made while exercising powers under subsection (1), (2) and (3) shall lie before the Supreme Court for decision within ninety days.
Relevant provisions of Election Act, 2017 in this respect are Sections 4, 9(4) and (5), 126, 202(6) and Section 234 are also reproduced which are as follows:
Section 4. Power to issue directions.—(1) The Commission shall have the power to issue such directions or orders as may be necessary for the performance of its functions and duties, including an order for doing complete justice in any matter pending before it and an order for the purpose of securing the attendance of any person or the discovery or production of any document.
(2) Any such direction or order shall be enforceable throughout Pakistan and shall be executed as if it had been issued by the High Court.
Section 9. Power of the Commission to declare a poll void.—
(4) While exercising the powers conferred on it by sub-section (1), the Commission shall be deemed to be an Election Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter IX, regulate its own procedure.
(5) Any person aggrieved by a declaration of the Commission under this section may, within thirty days of the declaration, prefer an appeal to the Supreme Court.
Section 126. Commission to have certain powers of a court.—For the purpose of the disposal of an appeal, the Commission shall have the same powers as are vested in a court under the Code of Civil Procedure, 1908 (Act V of 1908) when trying a suit in respect of the following matters—
(a) enforcing the attendance of any person and examining him on oath; (b) compelling the discovery and production of documents, articles or things;
(c) issuing commissions for the examination of witnesses;
(d) requiring the deposit of diet and travelling expenses of witnesses;
(e) receiving evidence on affidavits;
(f) granting adjournments; and
(g) summoning and examining, on its own motion, any person whose evidence appears to be material.
Section 202. Enlistment of political parties.—
(6) A political party which has been refused enlistment or whose enlistment has been cancelled under this section may, within thirty days of the refusal or cancellation of enlistment, file an appeal before the Supreme Court.
Section 234. Monitoring of election campaign.—
(4) If the nominated officer after summary enquiry finds a candidate or a political party guilty of violation of the Act or the Rules for the second time, he shall refer the matter to the Commission for initiation of proceedings against such candidate or political party under the law, including proceedings for disqualification of the said candidate and in case of the political party, its candidate.
(5) Any person aggrieved from an order of nominated officer under this section may, within three days from the order, file an appeal before the Commission and the order of the Commission on the appeal shall be final.
The duties of ECP are entertained in Article 219 of the Constitution and include inter alia:
219(e) such other function as may be specified by an Act of Majlis-e-Shoora (Parliament).
Election Commission of Pakistan processes the power to collect facts, information and data that enable it to properly and effectively perform such executive, administrative and judicial duty. Such a capacity represents the constitutional legal powers of Election Commission of Pakistan.
Election Commission, consisting of Chief Election Commissioner and four members, have been constituted vide Constitution (Eighteenth Amendment) Act, 2010. The terms of office of the CEC and four members have been given in detail in Articles 213 to 218 of the Constitution. After the passing of judgment in Benazir Bhutto case, various amendments/improvements have been made in the Election Laws and Constitution through different Parliament Act e.g. vide Act No.IX of 1991 dated 18.06.1991, Section 103AA of ROPA 1976 was inserted vide which the powers of Tribunal have been given to Election Commission of Pakistan and an appeal against the decision of Commission has been filed before the Hon’ble Supreme Court of Pakistan. Similarly, while passing the Election Act, 2017, the Parliament has given extraordinary judicial and executive powers to Commission to organize and conduct the election and to make such arrangement to ensure that the election has been conducted honestly, justly, fairly and in accordance with law and the corrupt practices are guarded against. It is admitted fact that in order to control corrupt practices, number of petitions have been filed by aggrieved parties and after passing the order by the Election Commission, these orders of the Election Commission had been challenged before the Hon’ble Supreme Court of Pakistan as the right of appeal has been given by the Parliament to the aggrieved party.
18. It is important to add that the judicial powers of the Election Commission of Pakistan had been discussed in detail by august Supreme Court of Pakistan in the case titled Aftab Shaban Mirani and Others vs. Muhammad Ibrahim and Others PLD 2008 SC 779 and in the case of Raja Shaukat Aziz Bhatti versus Major (R) Iftikhar Mehmood Kiani PLD 2018 SC 578. Reference is also made to PLD 2013 SC 501 (Sh. Riaz ul Haq vs. Federation of Pakistan) wherein it is held that “As the appeal against the judgments of Tribunal lies before the Supreme Court under Article 212(3) of the Constitution, therefore, the Tribunals fall under the judicial hierarchy.”
Likewise, appeal against the judgment/orders of Election Commission of Pakistan lies before the Supreme Court under Article 63A of the Constitution and
Section 9(5) and 202(6) of the Elections Act as well as under Section 103AA(4) of the ROPA 1976 therefore following the same dicta provided in the case of Sh. Riaz ul Haq vs. Federation of Pakistan reported as PLD 2013 SC 501, Election Commission of Pakistan may also fall under the judicial hierarchy.
The constitution and relevant provisions of Election Laws also provide powers to the Election Commission of Pakistan to exercise judicial and quasi-judicial duties while adjudicating upon different disputes.
19. From perusal of herein above cited judgments, definitions of term quasi-judicial functions and the relevant Constitutional and Statutory provisions relating to Election Laws, it has been emerged that the Election Commission of Pakistan is not a Court or a Tribunal, though it has been empowered to appoint Election Tribunals under Article 219(c), which exercise judicial powers under Article 225 of the Constitution, therefore, the Election Commission of Pakistan. However, the relevant constitutional provisions, including Articles 218 and 219 of the Constitution, provide for constitution of permanent election commission for the purpose of election of both Houses, Majlis-e-Shoora (Parliament), Provincial Assemblies and for election of such other public offices as may be specified by law, and also define various functions to be performed by the Election Commission of Pakistan, which include (a) preparing electoral rolls for election to the National Assembly, Provincial Assemblies and local government, and revising such rolls periodically to keep them up-to-date; (b) organizing and conducting election to the Senate or to fill casual vacancies in a House or a Provincial Assembly; and (c) appointing Election Tribunals; (d) the holding of general elections to the National Assembly, Provincial Assemblies and the local governments; and (e) such other functions as may be specified by an Act of Majlis-e-Shoora (Parliament), and also the relevant provisions of the Election Act, 2017, and Elections Rules, 2017, including Sections 3, 4, 9(5), 10, 15, 125, 126 and 236. Section 3 of the Act provides procedures of the commission which stipulates that the decisional shall be on majority basis. Section 4 of the Act gives power to the Commission to issue directions or orders for doing compete justice which is enforceable throughout Pakistan and such directions or orders shall be
enforceable. Section 6 deals with the power and delegations and further subsection (3) reads as, “The commissioner shall constitute Benches comprising three Members of Commission to hear and decide the complaints, applications, petitions or appeals filed before it under this Act.” Section 8 empowers Commission to issue orders. Section 9(5) specifically grant a forum of appeal to aggrieved person against the order of declaring a poll to be void, which reads as, “Any person aggrieved by a declaration of the Commission under this Section may, within thirty days of the declaration, prefer an appeal to the Supreme Court.” Section 10 gives the power to Election Commission of Pakistan to punish under Contempt of Court Ordinance, 2003, which is available to the High Court. Section 15 confers a right to an aggrieved person to file a complaint to the Commission under Article 225. Subsection (3) gives further power to the Commission for hearing of the complaints. Section 126 of the Act gives power to contesting candidate to file an appeal to the Commission and subsection (5) gives power to Commission to hear the appeal and decide the same. Section 126 confers powers to the Commission of a Court. Section 151 gives power to the Election Commissioner to transfer Election Petition from one Tribunal to another Tribunal. Section 236 barred the jurisdiction of the Courts to call in question the decision of the Election Commission. Rule 12 of the Election Rules 2017 provides a voter a remedy of representation to the Commission in respect of delamination of constituencies. Rules 13 provides hearing and disposal of representations by the Election Commission. The scrutiny of the above mentioned sections and rules clearly shows that the Election Commission, not only performs administrative powers but it has been conferred with the judicial powers so the Chief Election Commissioner and its Members may perform judicial power or at least quasi-judicial powers under Election Act, 2017 and so also the previous repealed enactments. The election Commission while performing administrative functions is not a judicial forum. The Election Commission while exercising judicial powers is a judicial forum. It appears that the Election Commission of Pakistan is a constitutional body created under Article 218 of the Constitution to organize and conduct the election and to make such amendments as are necessary to ensure that election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against. Whereas, under the aforesaid provisions of the Election Act, 2017 Election Commission of Pakistan has also been authorized to determine the rights and liabilities of the individuals and the political parties through process of inquiry, collecting facts and after hearing the complainant and the other parties to pass appropriate order in accordance with law, which is subject to further appeal before the Courts of law.
20. The above referred functions may not be treated as judicial functions, however, the same can also not be termed as mere administrative or supervisory functions, for the reason that while hearing complaints and deciding election disputes, the Election Commission of Pakistan exercises various powers under the Qanun-e-Shahadat Act and other relevant laws for the purposes of determining the rights and liabilities of the voters and the candidates participating in the election after providing opportunity of being heard. Most of the functions performed by the Election Commission of Pakistan have the characteristic of administrative functions judicially performed. Such functions can more precisely be termed as quasi-judicial functions, which are in fact the combination of both judicial and administrative functions. The expression ‘quasi-judicial’ in view of hereinabove legal definitions and the judicial pronouncements can be termed to be one which stands midway a judicial and an administrative function. The test whether an authority is quasi-judicial is: (i) that the body of persons must have legal authority; (ii) authority must be given to determine the rights of the subjects or citizens; and (iii) such a body should have the duty to act judicially. The concept of a quasi-judicial act implies that the act is not wholly judicial, it describes only a duty cast on the executive body or authority to conform to the norms of judicial procedure in performing some acts in the exercise of its executive power. If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are no two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. The distinction between a quasi-judicial and an administration or executive act was dealt with at length. After considering the authorities on the point, it was held that a quasi-judicial act requires that a decision is to be given not arbitrarily or in the mere discretion of an authority of in the mere discretion of an authority, but according to the facts and circumstances of the case, as determined upon an inquiry held by the authority after giving an opportunity to the party to be affected of being herd and whenever necessary weight the evidence in support of his contentions, whenever the authority is bound to make a decision in the way, acts judicially or quasi-judicially. Where there are two or more parties contesting each other’s claim and the statutory authority is required to adjudicate the rival claims between the parties, such a statutory authority can be held to the quasi-judicial and the decision rendered by it as a quasi-judicial order. Thus, where there is a lis between the two contesting parties and the statutory authority is required to decide such a dispute, in absence of any other attributes of a quasi-judicial authority, such a statutory authority is a quasi-judicial authority. The legal principles which emerge from the various judgments laying down when an act of a statutory authority would be a quasi-judicial act that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi-judicial. In other words, an authority is described as quasi-judicial when it has some attributes or trapping of judicial provisions but not all. In view of hereinabove declaration with regard to office of Election Commission of Pakistan, a writ of quo-warranto cannot be issued against respondents No. 2 to 4, namely, Justice (Retired) Shakeel Ahmed Baloch, Justice (Retired) Irshad Qaiser, and Justice (Retired) Altaf Ibrahim Qureshi, being the retired Judges of different High Courts of Pakistan on the ground that their appointments have been made before expiration of two years from the date when they ceased to hold office as Judge of High Courts. As regards writ of quo-warranto against respondent No. 5, namely, Abdul Ghaffar, a retired bureaucrat, is concerned, no substantial legal ground has been agitated except allegation of corruption during the service as a bureaucrat, however, neither any judicial pronouncement by competent Court of jurisdiction, nor sufficient material or evidence has been produced before the Court to establish that the allegations against respondent No.5 are correct and therefore, respondent No. 5 could not be appointed as Member of Election Commission of Pakistan. Moreover, unless there is some constitutional or legal ground agitated against a constitutional appointee, Courts are not inclined to entertain a writ of quo-warranto, requiring a probe or investigation into the allegations, otherwise seriously disputed by the respondents in the instant case, as it may encourage filing of frivolous petitions, and would adversely affect the independence of a constitutional office. Accordingly, we are not inclined to issue a writ of quo-warranto against respondent No.5 on the basis of mere allegations alone.
21. We may not examine a pertinent legal ground i.e. as to whether a writ of quo-warranto can be issued against a person, who has already ceased to hold a public office before any declaration could be made in terms of Article 199(i)(b)(ii) of the Constitution by any Constitutional Court of jurisdiction to this effect. From perusal of plain language of Article 199(1)(b)(ii) of the Constitution, it is clear that a writ of quo-warranto can be issued by High Court requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office or to show under what authority of law he claims to hold that office, whereas, there is no other constitutional provision requiring a Court to make a probe or to examine the legality of an appointment to a public office, and to issue a writ of quo-warranto against a person, who does not hold or purported to hold a public office. Since in the instant case, respondents No. 2, namely, Justice (Retired) Shakeel Ahmed Baloch and respondent No.5, namely, Abdul Ghaffar stood retired with effect from 26.01.2019, therefore, a writ of quo-warranto cannot otherwise, be issued against said respondents, more particularly, when there is no allegation or material produced to suggest that there has been an element of corruption or nepotism in their appointments as members of Election Commission of Pakistan. Reliance placed by the petitioners in Human Rights Case No.3654/2018 (2019 SCMR 1) in this regard is misplaced for the reason that incumbent holder of public office i.e. Managing Director, PTV was holding the public office wherein there were allegations of corruption and nepotism by appointing authority whereas eligibility of the incumbent was also under dispute.
22. We would, therefore, sum up our findings on various constitutional and legal grounds agitated by the petitioners and the objections as to maintainability of instant petition raised by the respondents, in the following terms:
(i) Petitioners have the locus standi to file instant constitutional petition in the nature of quo-warranto under Article 199(i)(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 for the reason that any person, who may not be an aggrieved party, can invoke the constitutional jurisdiction of a High Court for issuance of a writ of quo-warranto so that a High Court may examine the validity of an appointment to a public office, on constitutional and legal grounds. In view of our detailed finding as recorded in Para: 9 to 12 hereinabove, the objections raised by the respondents with regard to maintainability of instant petition on various grounds, including: (i) locus standi of petitioners to file instant petition; (ii) mala fide on the part of the petitioners; (iii) latches; and (iv) lack of territorial jurisdiction of this Court, are hereby declared to be without any substance, hence over-ruled.
ii) Office of Election Commission of Pakistan is a “quasi-judicial office”, therefore, bar of expiration of two years in terms of Article 207(2) of the Constitution of Islamic Republic of Pakistan, 1973, would not be attracted in the case of appointment of retired judges of Supreme Court and High Court(s). Therefore, a writ of quo-warranto cannot be issued against respondents Nos. 2 to 4 being the retired Judges of different High Courts on the grounds that their appointments have been made before expiration of two years from the date when they ceased to hold office as Judges of High Courts. Accordingly, writ against respondents Nos.2 to 4 is misconceived and not maintainable.
iii) As regards issuance of writ of quo-warranto against respondent No.5, a retired bureaucrat, no substantial constitutional or legal ground has been agitated, nor any sufficient material or evidence has been produced in support of the allegations of corruption, therefore, we are not inclined to conduct any inquiry or to make a probe into the allegations levelled against respondent No.5 while exercising constitutional jurisdiction under
Article 199(i)(b)(ii) of the Constitution in the instant case. Accordingly, writ against respondent No.5 is not maintainable.
Petition stands disposed off in the above terms along with all the pending applications.
J U D G E
J U D G E
Dated: 12.06.2020