SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Full-Court Bench:
Mr. Justice Qazi Faez Isa, CJ
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Amin-ud-Din Khan
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Muhammad Ali Mazhar
Mrs. Justice Ayesha A. Malik
Mr. Justice Athar Minallah
Mr. Justice Syed Hasan Azhar Rizvi
Mr. Justice Shahid Waheed
Mr. Justice Irfan Saadat Khan
Mr. Justice Naeem Akhtar Afghan

Civil Appeals No. 333 and 334 of 2024

AND
Civil Misc. Application No.2920 of 2024
[Stay application]
AND
Civil Misc. Application No. 5913 of 2024
[Application of PTI for impleadment]

Sunni Ittehad Council and another. (In both cases)

… Appellants
Versus
Election Commission of Pakistan and others.(In both cases)
… Respondents
Civil Petitions No. 1612 to 1617 of 2024
AND
C.M.A. No.3554 of 2024 in CP NIL/2024
[For permission to file and argue]

The Speaker, Provincial Assembly of Khyber Pakhtunkhwa,

Peshawar and others.
(In CPs.1612 to 1614/24)

Government of Khyber Pakhtunkhwa through Chief Secretary,

Peshawar and others.
(In CPs.1615 to 1617/24)

Kanwal Shauzab.
(In CMA.3554/24) …Petitioners/Applicant
Versus
Shazia Tehmas Khan and others.
(in CPs.1612 and 1616/24)

Aiman Jalil Jan and others.

(in CP. 1613 and 1617/24)

Mehr Sultana and others.

(in CPs.1614 and 1615/24)
Civil Appeal No. 333 of 2024 etc. 2

Election Commission of Pakistan, through its Secretary,

ECP House, Islamabad and others.
(in CMA.3554/24)
… Respondents
In Civil Appeals
For the Appellants : Mr. Faisal Siddiqui, ASC
(In both Appeals) Assisted by Mr. Ammar Rafique, Adv.
a/w Mr. Ajmal Ghaffar Toor, ASC
Mr. Haider Bin Masud, Adv.
And Mr. Sahibzada M. Hamid Raza
(appellant in person)

For Respondent No. 1-ECP Mr. Sikandar Bashir Mohmand, ASC

(In both Appeals)
Assisted by Mr. Abdullah Noor
And Hamza Azmat, Advocates
a/w Mr. M. Arshad, D.G (Law) ECP.
Ms. Saima Tariq Janjua, D.D. Law (ECP)

For PPPP Mr. Farooq H. Naek, Sr. ASC

(In both Appeals) Asstt. by Mr. Asad Mehmood Abbasi, ASC
Mr. Sheraz Shaukat Rajpar, Adv.
Syed Qaim Shah, Adv.

For PML(N) Mr. Haris Azmat, ASC.

(In CA. 333/24) Assisted by Ms. Faiza Asad, Adv.
Ch. Akhtar Ali, AOR.

For MQM Nemo.

For Respondent No. 5 Mr. M. Siddique Awan, ASC.

(In CA. 333/24)
For Respondent No. 9 Syed Rifaqat Hussain Shah, ASC/AOR.
(In CA. 333/24)

For Respondent No. 11 Mr. Kamran Murtaza, Sr. ASC

(In CA. 333/24)

For Respondents No. Mr. M. Makhdoom Ali Khan, Sr. ASC.

15 to 19, 21-22: Mr. Sarmad Hani, ASC.
(In CA. 333/24) Mr. Saad Mumtaz Hashmi, ASC
Asst. by Zarar Qadir Shoro, Adv
a/w Yawar Mukhtar, Adv.

For Respondent No. 20 Mr. Zulfikar Khalid Maluka, ASC.

(In CA. 333/24)

For Respondent No. 9 Mr. M. Shahzad Shaukat, ASC.

(In CA. 334/24) Asstt. By Raza ur Rehman, Adv.
In Civil Petitions
For the Petitioners Mr. Asad Jan Durrani, ASC.
(In CPs.1612-1614/24) a/w Malik Khawas, Asst. Law Officer,
KPK Assembly

For the Petitioners Mr. Shah Faisal Utmankhail,

(In CPs.1615-1617/24) Advocate-General, KP.
Mr. Kausar Ali Shah, AAG, KPK
Mr. Zahid Yousaf, AOR
Civil Appeal No. 333 of 2024 etc. 3

For Respondent No. 1 Mr. Amir Javed, ASC

(In CPs.1612 & 1616/24)

For R-6 (in CP 1612/24) and Mr. Shah Khawar, ASC

For R-2 to 5 (in CP 1616/24)

For Respondent No.1 to 6 Mr. Kamran Murtaza, Sr. ASC

(In CP.1613 & 1617/24) Qari Abdul Rasheed, ASC

For Respondents No.1,2,3, Mr. Imran Khan, ASC

8 (In CP.1614/24)

In CMAs
For the Applicants: Mr. Salman Akram Raja, ASC.
(In CMAs. 3554 & 5913/24) Mr. Sameer Khosa, ASC
Assisted by Malik Ghulam Sabir,
Ramsa Banuri, Samreen Qureshi, and
Hamad Amin, Advocates.

On Court Notice: Mr. Mansoor Usman Awan,

For the Federation: Attorney-General for Pakistan.
(Assisted by: Ms. Maryam Ali Abbasi, Adv.)
a/w Malik Javed Iqbal Wains, AAGP
Raja M. Shafqat Abbasi, DAG
Ms. Maryam Rasheed, Adv

For Govt. of Punjab: Mr. Khalid Ishaq,

Advocate-General, Punjab.
Mr. Sanaullah Zahid, Additional
Advocate-General, Punjab.

For Govt. of Mr. Shah Faisal Utmankhail, Advocate-

Khyber Pakhtunkhwa: General, KP.
Mr. Shah Faisal Ilyas,
Additional Advocate-General, KP.

For Govt. of Sindh: Mr. Miran Muhammad Shah, Addl. A.G.

Sindh (through video-link from Karachi)

For Govt. of Balochistan : Mr. Muhammad Asif Reki,

Advocate-General, Balochistan.
(Through video-link from Quetta)
Mr. M. Ayaz Swati, Addl. AG
Mr. Tahir Iqbal Khattak,
Additional Advocate-General,
Balochistan.
(At Islamabad)

For ICT: Mr. Muhammad Ayyaz Shaukat, A.G.

Islamabad

Research Assistance: Umer A. Ranjha, Judicial Law Clerk.

Date of Hearing: 09 July 2024

Civil Appeal No. 333 of 2024 etc. 4

Table of Contents
Preface ................................................................................................................................... 5
Nature of election disputes and responsibility of courts .......................................................... 8
Relevant facts of the case...................................................................................................... 12
PTI’s application for impleadment (CMA No. 5913 of 2024) .................................................. 13
Claim for allocating reserved seats to SIC or to PTI ................................................................ 15
Questions of law ................................................................................................................... 15
Scope of fundamental right guaranteed by Article 17(2) of the Constitution ................. 16
Right to vote and the freedom of expression guaranteed under Article 19 ................... 18
(i) What is the consequence of declaring a political party ineligible to obtain an election
symbol under Section 215(5) of the Elections Act 2017? Does such a declaration affect the
political party's other constitutional and statutory rights?..................................................... 19
Principle of strict construction of statutes providing penal consequence or curtailing
fundamental rights ....................................................................................................... 21
Answer to question (i) and its applicability to PTI .................................................................. 23
Explanation to Rule 94 of the Elections Rules 2017 is ultra vires the Elections Act and the
Constitution ................................................................................................................. 24
(ii) Can a candidate nominated by a political party ineligible to obtain an election symbol be
mentioned as an independent candidate in the list of contesting candidates (Form-33), and
can such a returned candidate be notified as an independent returned candidate in the
Section-98 Notification? ........................................................................................................ 26
Right to contest elections as a political party through its nominated candidates is a
fundamental right under Article 17(2) of the Constitution ............................................ 27
The order of the Commission, dated 2 February 2024, made on the application of Mr.
Salman Akram Raja (a PTI candidate) was both unconstitutional and unlawful. ............ 28
Difference between “interpretation” and “construction” of statutes ............................ 31
Answer to question (ii) and its applicability to PTI ................................................................ 32
Validity of party tickets issued by Mr. Gohar Ali Khan as Chairman PTI.......................... 32
(iii) Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to political parties that
have contested for and won general seats or to all enlisted political parties? ........................ 36
Presumption that same words used in a statute carry same meaning and different words
different meanings, is not absolute............................................................................... 38
Words “secured” and “won” carry the same meaning in paragraph (d) of Article 51(6)
and have been used interchangeably in its main provisions and proviso. ...................... 39
The subject and object of the proviso to Article 51(6)(d)............................................... 40
The proviso to Article 51(6)(d) is not a true proviso ...................................................... 40
The effect of the use of the word “such” with “political party” in the latter part of the
proviso ......................................................................................................................... 43
Harmonious reading of Article 51(6(d) with Article 63A(2) ............................................ 43
Answer to question (iii) and its applicability to SIC and PTI .................................................... 45
(iv) How is the proportional representation of a political party to be calculated for the
allocation of reserved seats under Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution? . 46
Position of political parties and independent members of Parliament in a parliamentary
democracy ................................................................................................................... 46
Civil Appeal No. 333 of 2024 etc. 5

Proportional representation system of political parties is a composite expression ........ 48

Constitutional objective of providing seats reserved for women and non-Muslims ....... 49
Answer to question (iv), and its applicability to PTI and other political parties ....................... 50
Denial of due share of proportional representation in the reserved seats violates the
fundamental rights of the politicial party and the electorate guaranteed by Articles 17(2)
and 19 of the Constitution. ........................................................................................... 50
What relief would serve the ends of justice? ......................................................................... 51
Unlawful acts and omissions of the Returning Officers and the Commission that caused
prejudice to PTI ............................................................................................................ 52
The scope of powers of the Commission under Article 218(3) and of the Supreme Court
under Article 187(1) of the Constitution. ...................................................................... 53
Point of divergence between eight Judges and three Judges......................................... 55
The Commission has failed to perform its role as a “guarantor institution” of democratic
processes ..................................................................................................................... 60
PTI is before the Court .................................................................................................. 63
Relief granted; short order reproduced ................................................................................. 64

JUDGMENT
Syed Mansoor Ali Shah J.-

Preface

At the core of our democratic Constitution lies the will of the people of
Pakistan, with free and fair elections being fundamental to democracy.
The principle that ‘the most important political office is that of the private
citizen’1 underscores the crucial role of the people, whose right to vote is
the lifeblood of democratic governance. Democracy thrives on the belief
that authority inherently resides in the people, a principle enshrined in
the Constitution of every democratic nation, including ours. Our
Constitution is not merely a governmental blueprint but a covenant
affirming the supreme role of the people in shaping their destiny.

2. Under our Constitution, while the sovereignty of the entire

Universe belongs to Almighty Allah alone, the authority is to be exercised
by the people of Pakistan as a “sacred trust” within the limits prescribed
by Him. It posits that people are entrusted with the responsibility of
governance, which is to be exercised through their chosen
representatives. The notion of a “sacred trust” elevates the responsibility
of both the government and the judiciary in our Islamic republic. It
embeds a moral dimension into the practice of democracy, where the
1
Justice Louis Brandeis, a U.S. Supreme Court Justice from 1916 to 1939, famously said: “The most important
political office is that of the private citizen.” This statement emphasizes the crucial role individuals play in a democracy
and highlights that the strength of democratic governance depends on the active participation and vigilance of its
citizens.
Civil Appeal No. 333 of 2024 etc. 6

fidelity to this trust is seen as paramount. In the context of elections,

this “sacred trust” implies that all the actors in the electoral process
must adhere to a higher standard of fair and honest conduct ensuring
electoral integrity.

3. Election authorities, as “electoral management bodies”, are the

“guarantor institutions” of democratic processes and are critical to
democratic governance, akin to a “fourth branch of government”. Their
constitutional role is to ensure the conduct of elections by providing an
equal and fair competitive field for all political entities and protect
citizens’ rights to vote. As an impartial steward of the electoral process,
the Election Commission of Pakistan is not only an administrative body
but also a guardian of electoral integrity and democracy’s legitimacy.
When election authorities engage in actions that undermine these
principles, such as unlawfully denying the recognition of a major political
party and treating its nominated candidates as independents, they not
only compromise the rights of these candidates but also significantly
infringe upon the rights of the electorate and corrode their own
institutional legitimacy.

4. Political parties play a crucial role in representative democracies,

acting as intermediaries between the state and its citizens. They are
uniquely positioned to shape and structure electoral choices, organize
public opinion, and integrate diverse interests into coherent platforms,
thereby making electoral decisions meaningful and ensuring the proper
functioning of democracy.2 Moreover, political parties contribute to stable
governance by facilitating consistent lawmaking and ensuring regular
accountability. As such, they are essential to electoral competition and
are key to the legitimacy, efficiency, and accountability of state
institutions. This central role of political parties in the constitutional
process is referred to as “constitutional particracy”, meaning a system in
which political parties serve as the primary foundation of governance. 3
For democracy to endure, political parties must be supported and
strengthened, not eliminated. A democracy without political parties is
unlikely to sustain itself for long.

2
Tarunabh Khaitan, Political Parties in Constitutional Theory, Current Legal Problems, Vol. 73 (2020), pp. 89-125.
3
Aradhya Sethia, Constutitional Particracy: Political Parties and the Indian Constitution, (2024).
Civil Appeal No. 333 of 2024 etc. 7

5. When the Election Commission errs or makes significant mistakes

impacting the electoral process, judicial intervention becomes necessary
to rectify them and ensure electoral justice. The judiciary, tasked with
ensuring electoral justice, must foremost preserve the will of the people.
Election disputes are viewed through this lens, emphasizing electoral
integrity and democracy’s legitimacy to maintain public confidence in
governance. Electoral justice is vital to protecting political and electoral
rights and is intertwined with electoral integrity. The role of the Supreme
Court of Pakistan in overseeing electoral integrity is crucial for sustaining
public trust in the democratic process, and the Court’s power to do
“complete justice” is a critical tool in the constitutional arsenal of this
Court, enabling it to prevent democratic backsliding,4 and protect
democracy effectively with a focus on the electorate’s rights. Denying
electoral justice and compromising electoral integrity would undermine
the very legitimacy of democracy.

6. When static interpretation fails to preserve the vitality of the

Constitution’s text and principles, judges have typically rejected it in
favor of constitutional fidelity.5 Constitutional fidelity as a concept
embodies that to be faithful to the Constitution is to interpret its words
and to apply its principles in ways that preserve the Constitution’s
meaning and democratic legitimacy over time. Constitutional fidelity and
legitimacy both are framed in a means-end relationship; legitimacy as the
end and constitutional fidelity as a means to that end.6 We must
remember that Constitutions are not ephemeral enactments, designed to
meet passing situations but are ‘designed to approach immortality as
nearly as human institutions can approach it.’7

7. With this understanding of the importance of the will of the people,

fair conduct of elections, role of the Election Commission as a guarantor
institution, centrality of political parties to the electoral process, electoral
justice, electoral integrity and rights of the electorate in a democracy, we
approach this case.

4
Tom Ginsburg, ‘Democracy Backsliding and the Rule of Law’ 44 Ohio University Law Review 351 (2018).
5
Goodwin Liu, Pamela S. Karlan and Christopher H. Schroeder, Keeping Faith with the Constitution, American
Constitution Society for Law and Policy (2009).
6
Frank I. Michelman, Fidelity and Legitimacy, Journal of the ACS Issue Groups, American Constitution Society for
Law and Policy (Vol. 1, No. 2, 2007).
7
Weems v. United States, 217 U.S. 349 (1910).
Civil Appeal No. 333 of 2024 etc. 8

Nature of election disputes and responsibility of courts

8. Before proceeding to the relevant facts of the case and the issues
arising therefrom, it is necessary to underscore the nature of election
disputes and the responsibility of courts and other judicial and quasi-
judicial bodies in adjudicating such disputes. During the hearing of these
appeals, when certain facts and points of law were questioned by some
members of the Bench, the learned counsel for the respondents
submitted that those facts were not in the pleadings and that those
points of law did not arise from the facts presented in the pleadings.
They contended that in exercising its appellate jurisdiction under Article
185 of the Constitution, this Court cannot go beyond the pleadings. We
are afraid, this contention is misconceived. It results from a
misunderstanding of treating election disputes as mere civil disputes
between two private parties, similar to other civil disputes.

9. Such a contention based on analogizing a petition on an election

dispute to a civil suit was repelled by Morris J. as far back as 1875 in the
Tipperary Election Case,8 with the observation:

I consider this is a fallacious analogy, because a petition [on an election

dispute] is not a suit between two persons, but is a proceeding in which
the constituency itself is the principal party interested.

This legal position was further elucidated the next year in 1876 by Grove
J. in Aldridge9 as follows:

Numerous provisions of the Act have reference not merely to the

individual interests or rights of petitioners or respondents, but to rights
of electors, of constituencies, and of the public, in purity of election and
in having the member seated who is duly returned by a majority of
proper votes. …

This English jurisprudence on the nature of election disputes was

adopted in India and Pakistan. In Sreenivasan,10 Aiyar J. of the Madras
High Court also repelled such a contention of treating an election petition
similar to a civil suit. He elaborated on the difference in the nature of
proceedings of a civil suit and an election petition and eloquently
enunciated the legal position thus:

This view proceeds principally on the basis that an election petition is in

all essential respects similar to an ordinary civil suit; but that is not
quite so. An election petition is not a matter in which the only persons
interested are candidates who strove against each other at the elections.
The public also are substantially interested in it and this is not merely in

8
Morton v. Galway [1875] 3 O.M. & H. 19.
9
Aldridge v. Hurst [1876] L.R. 1 C.P. 410.
10
Sreenivasan v. Election Tribunal [1955] 11 E.L.R. 278.
Civil Appeal No. 333 of 2024 etc. 9

the sense that an election has news value. An election is an essential

part of the democratic process. The citizens at large have an interest in
seeing and they are justified in insisting that all elections are fair and
free and not vitiated by corrupt or illegal practices. … In view of the
manifest difference between a civil suit and an election petition it will not
be right, it seems to me, to press the analogy founded on the basis of a
civil suit very far when we have to deal with an election petition.

Similarly, speaking for the Supreme Court of India in Inamati, 11

Bhagwati J. observed:

It is this interest of the constituency as a whole which invests the

proceedings before the Election Tribunals with a characteristic of their
own and differentiates them from ordinary civil proceedings.
An election contest as aforesaid would result in the declaration of the
properly qualified candidate as duly elected and the maintenance of the
purity of the elections in which the constituency as a whole is vitally
interested and no person would get elected by flagrant breaches of the
election law or by corrupt practices.

Again, in Mohinder Singh,12 Krishna Iyer J. adeptly rearticulated the legal

position as follows:

[A]n election dispute is not like an ordinary lis between private parties.
The entire electorate is vicariously, not inertly, before the court. … We
may, perhaps, call this species of cases collective litigation where judicial
activism assures justice to the constituency, guardians the purity of the
system and decides the rights of the candidates. … Therefore, it is
essential that courts, adjudicating upon election controversies, must play
a verily active role, conscious all the time that every decision rendered by
the Judge transcends private rights and defends the constituency and
the democracy of the country.

In his inimitable style, he underscored the duty of courts to exercise

“vigilant monitoring” of the election process, to call to order “lawless
behaviour”, and to function as “the bodyguards of the People against
bumptious power, official or other” in election disputes thus:

[T]he periodical process of free and fair elections, uninfluenced by the

caprice, cowardices or partisanship of hierarchical authority holding it
and unintimidated by the threat, tantrum or vandalism of strong-arm
tactics, exacts the embarrassing price of vigilant monitoring. Democracy
digs its grave where passions, tensions and violence, on an overpowering
spree, upset results of peaceful polls, and the law of elections is guilty of
sharp practice if it hastens to legitimate the fruits of lawlessness. The
judicial branch has a sensitive responsibility here to call to order lawless
behaviour. Forensic non-action may boomerang, for the court and the
law are functionally the bodyguards of the People against bumptious
power, official or other.

In Pakistan, the above legal position was reiterated by Syed Jamshed Ali
J. in Dilshad Khan13 and Irshad Hussain,14 respectively, as follows:

An election dispute is not stricto senso a dispute inter-parties because it

affects the entire constituency, who have a right to insist that they
are represented by a person who commands the will of the majority of

11
Inamati Basappa v. Desai Ayyappa AIR 1958 SC 698.
12
Mohinder Singh v. Chief Election Commissioner AIR 1978 SC 851.
13
Dilshad Khan v. Arshad Ali 1999 MLD 2874 (DB).
14
Irshad Hussain v. Ashraf Nagra 2003 YLR 812 (DB).
Civil Appeal No. 333 of 2024 etc. 10

electorate. Therefore, it is in the public interest that the election disputes

are expeditiously resolved and parties are not put to a protracted trial.
[A]n election dispute is not necessarily a lis inter se parties because it
involves the entire constituency, therefore, all efforts are required to be
made to expeditiously dispose of an election petition and an election
petition is not to be treated like a civil suit.

We may respectfully say that the above cases correctly enunciate the
nature of election disputes and the responsibility of courts and other
judicial and quasi-judicial bodies in adjudicating such disputes. While
we agree with these statements and principles of law, we think it would
also be apposite to summarise our understanding as well.

10. Elections are a crucial part of the democratic process, and the
public has a major stake in ensuring that they are held free and fair,
unmarred by corrupt or illegal practices. Therefore, unlike ordinary civil
cases, election cases involve substantial public interest. An election
dispute is fundamentally different from other civil disputes, as it is not
solely a dispute between two contesting parties but a proceeding where
the constituency itself is the principal interested party. These cases
involve not just the rights of the contesting candidates or political parties
but also the rights of the voters, constituencies and the public. Election
cases aim to fill public offices by properly qualified and duly elected
candidates and to maintain the purity of elections, ensuring that no one
takes charge of a public office through flagrant breaches of election laws
or corrupt practices. The proceedings in election cases thus have unique
characteristics because they serve the interests of the entire
constituency, differentiating them from ordinary civil proceedings. This
distinction clearly demonstrates the flaw in treating an election case as
an ordinary civil case and limiting the judicial inquiry to the pleadings of
the parties as it is in adversarial proceedings.

11. Since election cases are a species of collective or public interest

litigation, the proceedings therein are inquisitorial in nature. In these
cases, any judicial intervention is to ensure justice for the constituency
and to safeguard the integrity of the electoral system. The process of free
and fair elections requires vigilant judicial monitoring to check the
influence of any capricious or partisan election or executive authority. In
this regard, courts have a critical responsibility to address lawless
behaviou`r in the electoral process, as their inaction or delay could
undermine the legitimacy and credibility of the whole election. In
adjudicating election controversies, courts must therefore play an active
Civil Appeal No. 333 of 2024 etc. 11

role in an inquisitorial manner, defending the rights of the constituency

and the values and principles of democracy. They must act as guardians
of the fundamental rights of the people against any misuse of power or
illegal action in the electoral process.

12. In handling election disputes, the primary obligation of courts is to

protect the electorate’s right to fair representation, ensuring that only
candidates who have legitimately won the support of the electorate
through fair processes assume office. Courts must rise above political
biases and interests, focusing solely on legal and evidential matters to
safeguard the electorate’s interests. Their approach to election disputes
reflects the judiciary’s overarching responsibility to uphold the integrity
of the electoral process. As the highest court in the judicial hierarchy,
this Court bears a profound duty to prioritize and protect the rights of
the electorate, ensuring that their voice and representation in elected
bodies are not compromised by procedural failings or errors in the
electoral process. This duty underscores the Court's unique and
expansive constitutional mandate to oversee the electoral cycle
comprehensively. Such a judicial approach not only reinforces the
legitimacy of the electoral system but also strengthens the foundations of
democratic governance by ensuring that the will of the electorate is
accurately and fairly represented.

13. Unfortunately, the above legal position regarding the nature of

election disputes and the responsibility of courts was not brought to the
notice of the Bench by the learned counsel for the parties while making
their arguments. However, eleven members of the Bench, being
themselves aware of the above legal position, proceeded to inquire into
the facts and points of law that were not presented before the court
below, that is, the Peshawar High Court. Although these eleven members
of the Bench disagreed to some extent on granting the eventual relief,
their awareness of the true legal position as to the nature of election
disputes and the responsibility of courts led them to a broader and more
comprehensive judicial inquiry into all the relevant facts and law points
concerning the election dispute involved in the present case, as set out
next.
Civil Appeal No. 333 of 2024 etc. 12

Relevant facts of the case

14. On 15 December 2023, the Election Commission of Pakistan

(“Commission”) announced the election programme for the General
Elections-2024 to the National Assembly and Provincial Assemblies.
According to this programme, the last date for candidates to file
nomination papers with the Returning Officers was 22 December 2023,
which was extended on that day to 24 December 2023. On 22 December
2023, the Commission also decided the then-pending matter of intra-
party elections of the political party, Pakistan Tehreek-e-Insaf (“PTI”). The
Commission determined that PTI had not conducted its intra-party
elections in accordance with its constitution and election laws. As a
result, the Commission declined to recognize PTI’s intra-party elections
and declared PTI ineligible to obtain its election symbol. Although this
decision was initially suspended on 26 December 2023 and subsequently
set aside on 10 January 2024 by the Peshawar High Court, this Court
restored the Commission’s decision on 13 January 2024. PTI candidates
were thus not allotted the party symbol of PTI but instead were allotted
various different symbols that had been prescribed by the Commission
for independent candidates.

15. In the course of the election programme, when the Returning

Officers published the lists of contesting candidates (Form-33)15, they
mentioned PTI candidates as independent candidates. One of the PTI
candidates, Mr. Salman Akram Raja, challenged this action by the
Returning Officer of his constituency before the Commission. By its order
dated 2 February 2024, the Commission rejected his challenge and
declared him an independent candidate. The poll for the elections was
then held on 8 February 2024, and PTI candidates were notified by the
Commission as independent returned candidates in the notification
published in the official Gazette under Section 98 of the Elections Act
2017 (“Section-98 Notification”).

16. After the publication of Section-98 Notification, a substantial

number of independent returned candidates (86 for the National
Assembly; 107 for the Punjab Assembly; 90 for the Khyber Pakhtunkhwa
Assembly; and 9 for the Sindh Assembly) joined a political party, Sunni
Ittehad Council (“SIC”), to obtain the share of proportional representation

15
See Rule 56(1) of the Election Rules, 2017.
Civil Appeal No. 333 of 2024 etc. 13

in the seats reserved for women and non-Muslims in the National

Assembly and the Provincial Assemblies of Khyber Pakhtunkhwa, Punjab
and Sindh. SIC then informed the Commission of the joining of these
returned candidates and requested the Commission, through four
separate applications (letters) dated 21 February 2024, to allocate to it its
due share in the seats reserved for women and non-Muslims in the
National Assembly and the said three Provincial Assemblies.

17. Certain other political parties, such as Pakistan Muslim League

(Nawaz) (PML(N)) and Muttahida Qaumi Movement (Pakistan) (MQM(P)),
filed applications opposing SIC’s request for reserved seats and prayed
for the allocation of the reserved seats to them and other eligible political
parties. Some individuals also filed applications opposing the SIC’s
request and praying that SIC should not be treated as a parliamentary
party. The political party, Pakistan People’s Party Parliamentarians
(PPPP), appeared before the Commission as a proforma respondent in the
application filed by MQM(P), while the political parties, Jamiat Ulema-e-
Islam Pakistan (JUIP) and Pakistan Muslim League (PML), appeared in
response to the Commission’s notice and opposed SIC’s request.

18. By its order dated 1 March 2024, the Commission rejected SIC’s
applications and decided that the reserved seats for women and non-
Muslims, which had been requested by SIC but declined, would be
allocated to other political parties as per the proportional representation
system of political parties. Accordingly, those reserved seats (19 for
women and 3 for non-Muslims in the National Assembly; 21 for women
and 4 for non-Muslims in the Khyber Pakhtunkhwa Assembly; 24 for
women and 3 for non-Muslims in the Punjab Assembly; and 2 for women
and 1 for non-Muslims in the Sindh Assembly – 78 in total – hereinafter
referred to as the “disputed reserved seats”) were allocated to other
political parties. SIC challenged the Commission’s order before the
Peshawar High Court in writ jurisdiction. By its judgment dated 25
March 2024 (“impugned judgment”), the Peshawar High Court dismissed
the SIC’s challenge and upheld the Commission’s order. Hence, these
appeals were filed by SIC with leave of the Court.

PTI’s application for impleadment (CMA No. 5913 of 2024)

19. During the pendency of these appeals, PTI filed an application

seeking its impleadment in these appeals and submitting therein the
Civil Appeal No. 333 of 2024 etc. 14

facts and circumstances under which its returned candidates joined SIC.
PTI submitted in its application, inter alia, that PTI issued party tickets
to its candidates, which were to be filed with the respective Returning
Officers by 4 pm on 13 January 2024, the day fixed for the allotment of
election symbols. The Supreme Court took up the Commission’s appeal
against the judgment of the Peshawar High Court in the matter of PTI’s
intra-party elections and its election symbol on 12 January 2024 for
hearing, which continued until late evening on 13 January 2024.

19.1. Faced with the possibility of an adverse decision by the Supreme

Court after 4 pm that day, PTI entered into an arrangement with another
political party, PTI-Nazriati, under which party tickets were issued to PTI
candidates by that party to obtain a common symbol for PTI candidates
to prevent the disenfranchisement of a large part of the electorate.
However, the same day, the Chairman of PTI-Nazriati appeared on
national television channels and disavowed the tickets issued. At about
the same time, the Commission also issued an order dated 13 January
2024 directing the Returning Officers not to accept a political party’s
tickets for candidates who belonged to another political party. Therefore,
most of PTI candidates withdrew the tickets of PTI-Nazriati and presented
PTI’s tickets to the Returning Officers. Some of the Returning Officers
placed the same on file while others refused to receive the same pending
the decision of the Supreme Court.

19.2. Awaiting the decision of the Supreme Court, the Commission

extended the time for submitting the party tickets and the allotment of
election symbols till 12 pm that day. The Supreme Court announced its
short order at about 11 pm on 13 January 2024, whereupon the
Returning Officers rejected PTI's tickets and, by treating PTI candidates
as independent candidates, allotted them different election symbols. The
poll was held on 8 February 2024, and PTI candidates won a large
number of seats in the National and Provincial Assemblies. These
candidates were notified as independent returned candidates by the
Commission by relying upon Rule 94 of the Elections Rules 2017 and the
judgment of the Supreme Court dated 13 January 2024.

19.3. The Commission had earlier accepted in 2018 a political party,

Balochistan Awami Party, which had not contested for general seats,
eligible for the allocation of reserved seats. Therefore, PTI-backed
Civil Appeal No. 333 of 2024 etc. 15

returned candidates joined SIC, with which PTI had an ongoing alliance/
relationship, within three days of being so notified, in order to become
entitled to the allocation of the reserved seats. In its application, PTI also
made the following contentions:

A primary purpose of [Articles 51(6)(d) & (e) and 106(3)(c) of] the
Constitution is the establishment of a representative National Assembly
and representative Provincial Assemblies. Denial of reserved seats to PTI
would create an entirely unrepresented National Assembly as well as
Provincial Assemblies that do not reflect the will of the people.
[T]he denial of reserved seats to SIC/PTI and the allocation of a
disproportionate number of reserved seats to other political parties would
deepen the denial of the will of the people.

As per these contentions and the arguments made during the hearing,
PTI claimed the allocation of the disputed reserved seats either to SIC or
to itself (PTI).

Claim for allocating reserved seats to SIC or to PTI

20. It may also be pertinent to mention here that in the course of his
arguments, the learned counsel for SIC also attempted to explain the
above circumstances under which the returned candidates, who
according to him were PTI candidates, joined SIC. However, some
honourable members of the Bench reproved him, questioning how he
could make conflicting arguments as he was supposed to plead the case
of SIC, not of PTI. With respect, we say that both SIC and PTI took the
same stance on the peculiar circumstances that led the returned
candidates to join SIC; in no way did they make any conflicting
assertions. Both emphasized that it is the right of the people who had
voted for the returned candidates that their mandate should be reflected
in allocating the disputed reserved seats to SIC or to PTI.

Questions of law

21. On the above facts and the contentions made by learned counsel
for the parties, the following questions of law fall for determination:

i. What is the consequence of declaring a political party

ineligible to obtain an election symbol under Section 215(5)
of the Elections Act 2017? Does such a declaration affect the
political party’s other constitutional and statutory rights?

ii. Can a candidate nominated by a political party ineligible to

obtain an election symbol be mentioned as an independent
candidate in the list of contesting candidates (Form 33), and
can such a returned candidate be notified as an independent
returned candidate in the Section-98 Notification?
Civil Appeal No. 333 of 2024 etc. 16

iii. Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution

refer to political parties that have contested for and won
general seats or to all enlisted political parties? and

iv. How is the proportional representation of a political party to

be calculated for the allocation of reserved seats under
Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution?

We shall discuss and decide the above questions seriatim. However,

before doing so, we want to briefly state the scope of the fundamental
right guaranteed by Articles 17(2) and 19 of the Constitution, as the
whole case hinges upon it and the answer of all the above questions are
rooted in it.

Scope of fundamental right guaranteed by Article 17(2) of the

Constitution

22. The provisions of Article 17(2) of the Constitution are cited here for
ease of reference and reading:

Article 17(2) of the Constitution:

Every citizen, not being in the service of Pakistan, shall have the right to
form or be a member of a political party, subject to any reasonable
restrictions imposed by law in the interest of the sovereignty or integrity
of Pakistan, and such law shall provide that where the Federal
Government declares that any political party has been formed or is
operating in a manner prejudicial to the sovereignty or integrity of
Pakistan, the Federal Government shall, within fifteen days of such
declaration, refer the matter to the Supreme Court, whose decision on
such reference shall be final.

A bare reading of the provisions of Article 17(2) of the Constitution shows

that it guarantees to every citizen of Pakistan who is not in the service of
Pakistan, the right to form or be a member of a political party. As per this
Article, any reasonable restrictions can be imposed on this right by law
only in the interest of sovereignty or integrity of Pakistan. This right has
been regarded so important by the constitution makers that the
adjudication of the matter of its restriction on the specified two grounds
has been entrusted to the apex court of the country—the Supreme Court
of Pakistan—and not to any other court. The protection of this right is so
essential for ensuring democracy and representative government that its
significance cannot be overstated. Although all courts and tribunals are
mandated to enforce the right guaranteed by this Article, this Court (the
Supreme Court of Pakistan) is the ultimate guardian of it. Therefore, it is
also because of the constitutional obligation of this Court to protect the
right guaranteed by this Article, as specifically entrusted to it, that we
Civil Appeal No. 333 of 2024 etc. 17

decided to make a broader and comprehensive judicial inquiry into all

the relevant facts and law points concerning enforcement of the
fundamental rights of both the voters and the political parties.

23. As held by this Court in Nawaz Sharif,16 the fundamental rights

guaranteed by the Constitution, an organic instrument, are not capable
of precise or permanent definition delineating their meaning and scope
for all times to come. With the passage of time, changes occur in the
political, social and economic conditions of the society, which requires
re-evaluation of their meaning and scope in consonance with the
changed conditions. Therefore, keeping in view the prevailing socio-
economic and politico-cultural values and ideals of the society, the
courts construe the fundamental rights guaranteed by the Constitution
with a progressive, liberal and dynamic approach. This approach ensures
that the fundamental rights remain a vibrant and effective guarantee of
citizens’ rights, liberties and freedoms, adapting to the evolving needs
and aspirations of society. With this approach, the courts expound the
fundamental rights to give them “life and substance”17 that are true to
the reality of the changing times.

24. In view of the above principles of interpreting fundamental rights,

this Court has expounded in several cases the scope of the “right to form
or be a member of a political party” guaranteed by Article 17(2) and held
that it includes the right to function and operate as a political party, 18
the right to participate in and contest an election as a political party, 19
the right to form the Government and complete the prescribed tenure if
the members of the political party constitute the requisite majority,20 the
right to contest an election in his individual capacity or as a member of a
political party,21 the right to be governed by chosen representatives22 and
the right to vote.23 This bouquet of political fundamental rights ensures a
functional and a workable democracy and a representative government.
It is underlined that ‘representation in fact is democracy’.24 Therefore,
the right guaranteed by Article 17(2) is essential for actualizing the

16
Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
17
Griswold v. Connecticut (1965) 381 US 479 per Justice Douglas.
18
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC
66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
19
Ibid.
20
Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
21
Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955.
22
Azhar Siddiqui v. Federation of Pakistan PLD 2012 SC 774.
23
Province of Sindh v. M.Q.M. PLD 2014 SC 531.
24
David Plotke, Representation is Democracy, Constellations 4 (1) (1997).
Civil Appeal No. 333 of 2024 etc. 18

constitutional objective of establishing an order wherein the State

exercises its powers and authority through the chosen representatives of
the people.25

Right to vote and the freedom of expression guaranteed under Article

19

25. Furthermore, as a form of expression, the right to vote is part of

the fundamental right to freedom of expression guaranteed by Article 19
of the Constitution,26 which is cited here for ease of reference:

Article 19: Every citizen shall have the right to freedom of speech and
expression… subject to any reasonable restrictions imposed by law in the
interest of the glory of Islam or the integrity, security, or defence of
Pakistan or any part thereof, friendly relations with foreign states, public
order, decency, morality, or in relation to contempt of court, commission
of or incitement to an offence.

The right to freedom of speech and expression is considered “preservative

of all rights”.27 The act of voting for a candidate of a political party or an
independent candidate is a form of expression and an inherent concept
within the Constitution, fundamental to the democratic legitimacy and
validity of the legislature. When individuals cast their votes, they express
their opinions on how they believe their society should be governed, who
should govern it, and what policies should be prioritized. This form of
expression is crucial because it encapsulates the will of the electorate,
conveying messages about public preferences.

26. In a democratic context, freedom of expression extends beyond

individual speech to encompass the collective expression of a
community’s or nation’s political will through their elected
representatives. In essence, freedom of expression and
representativeness are deeply interlinked, each reinforcing the other. A
truly representative government not only exemplifies the collective
expression of its people but also ensures that this expression influences
governance. The right to form political parties, the right to contest
elections and the right to vote are therefore pivotal extensions of
representativeness and freedom of expression, essential for cultivating a
socially just environment.

27. The fundamental rights enshrined in Articles 17(2) and 19 of the

Constitution thus underscore the significance of political participation

25
The Constitution, Preamble and Article 2A read with the Objectives Resolution.
26
Province of Sindh v. M.Q.M. PLD 2014 SC 531.
27
Yick Wo v. Hopkins, 118 U.S. 356 (1886).
Civil Appeal No. 333 of 2024 etc. 19

and freedom of expression, both of which are essential to the functioning

of a representative democracy. Article 17(2) guarantees the right to form
or join political parties, highlighting the vital role of political participation
in safeguarding democracy, while Article 19 upholds the freedom of
expression, which is integral to the electorate’s ability to influence the
formation of government by expressing their choices through their votes.
Together, these Articles emphasize the importance of electoral integrity
and political justice, ensuring that every citizen’s voice and choice are
heard and represented in the political process.

28. Having so briefly stated the scope of the rights guaranteed by

Articles 17(2) and 19 of the Constitution, we will next discuss the
questions and examine the implications of this right further.

(i) What is the consequence of declaring a political party ineligible to obtain

an election symbol under Section 215(5) of the Elections Act 2017? Does
such a declaration affect the political party's other constitutional and
statutory rights?

29. The fundamental right to form a political party guaranteed by

Article 17(2) of the Constitution is regulated by the Elections Act 2017
(“Elections Act”). Section 2(xxviii) of the Elections Act defines a “political
party” to mean an association of citizens or a combination or group of
such associations formed with a view to propagating or influencing
political opinion and participating in elections for any elective public
office or for membership of a legislative body, including an Assembly, the
Senate, or local government. Chapter XI of the Elections Act, comprising
Sections 200 to 213, contains the detailed provisions, inter alia, on the
subjects of formation, enlistment, membership, functioning, intra-party
elections, sources of funds, and dissolution of political parties, etc.

30. Section 202 makes it obligatory for the Commission to enlist a

political party if the application for its enlistment is accompanied by (i) a
copy of the constitution of the political party, (ii) the certificate and the
information required to be submitted under Sections 201 and 209, (iii) a
copy of consolidated statement of its accounts under Section 210, (iv) a
list of at least two thousand members with their signatures or thumb
impressions along with copies of their National Identity Cards, and (v) the
deposit of two hundred thousand rupees in favour of the Commission in
the Government Treasury as enlistment fee. A political party which has
been refused enlistment by the Commission can file an appeal before the
Civil Appeal No. 333 of 2024 etc. 20

Supreme Court. This provision aligns with the constitutional mandate

entrusted to the Supreme Court under Article 17(2) of the Constitution
as the ultimate guardian of the right guaranteed by that Article. It is also
notable that a political party once enlisted under the Elections Act
cannot be delisted; the Commission's power to cancel the enlistment of a
political party under subsection (5) of Section 202 relates only to the
political parties enlisted before the commencement of the Elections Act,
i.e., under earlier law. Whereas Section 212 contains the provisions on
the matter of dissolution of political parties, which are similar to those
contained in Article 17(2) of the Constitution.

31. The provisions that are more relevant to the present case are those
contained in Sections 208 and 209, concerning the intra-party elections
of political parties. As per Section 208, the office-bearers of a political
party are to be elected periodically in accordance with the constitution of
the political party, provided that a period, not exceeding five years,
intervenes between any two elections. Once the intra-party elections are
conducted, the political party concerned is to publish the updated list of
its central office-bearers on its website and also to send such list to the
Commission. Similarly, under Section 209, within seven days from
completion of its intra-party elections, a political party is to submit a
certificate signed by an office-bearer authorized by the Party Head, to the
Commission to the effect that the elections were held in accordance with
the constitution of the political party. Such certificate should contain the
following information: (a) the date of the last intra-party elections; (b) the
names, designations, and addresses of office-bearers elected at the
Federal, Provincial, and local levels, wherever applicable; (c) the election
results; and (d) a copy of the political party’s notifications declaring the
results of the election. Within seven days from the receipt of such
certificate of a political party, the Commission is to publish the certificate
on its website. It is notable that under Section 208(5), where a political
party fails to conduct intra-party elections as per the given time frame in
its constitution (but not exceeding the statutory period of five years)
despite a notice issued by the Commission to do so, then the
Commission can impose a fine which may extend to two hundred
thousand rupees but not be less than one hundred thousand rupees.
While the consequence of failure to comply with the provisions of Section
209, which relates to the submission of a certificate containing the
Civil Appeal No. 333 of 2024 etc. 21

specified information and signed by an office-bearer authorized by the

Party Head, to the effect that the elections were held in accordance with
the constitution of the political party, is provided in Section 215(5).

32. Section 215(5)28 of the Elections Act provides that if a political

party fails to comply with the provisions of Section 209 (regarding intra-
party elections) or Section 210 (regarding sources of the party’s funds),
the Commission may, after affording it an opportunity of being heard,
declare it ineligible to obtain an election symbol for election to Majlis-e-
Shoora (Parliament), Provincial Assembly or a local government, and
shall not allocate an election symbol to such political party in
subsequent elections. The word “may” in Section 215(5) indicates the
discretion of the Commission in making the declaration, which
discretion, like all other discretionary powers vested in public
functionaries, is to be exercised justly, fairly and reasonably, considering
the peculiar facts and circumstances of each case. However, the
consequence of making such a declaration is clearly specified and is not
left to the discretion of the Commission. As stipulated in Section 215(5),
the consequence of making the declaration is that the Commission is not
to allocate an election symbol to such political party in subsequent
elections.

Principle of strict construction of statutes providing penal

consequence or curtailing fundamental rights

33. It is a cardinal principle of the construction of statutes that any

provision entailing penal consequence, whether of criminal law29 or of
civil law,30 must be construed strictly. This principle of strict
construction of penal statutes is also called the principle against
doubtful penalisation. It stresses that a person should not be penalised
except under clear law and if, in construing the relevant provisions, there
appears any reasonable doubt or ambiguity, it should be resolved in
favour of the person who would be liable to the penalty. No penalty or
penal consequence can be added to the one specified in law by inference

28
215. Eligibility of party to obtain election symbol.—(5) If a political party or parties to whom show cause notice
has been issued under sub-section (4) fails to comply with the provision of section 209 or section 210, the Commission
may after affording it or them an opportunity of being heard, declare it or them ineligible to obtain an election symbol
for election to Majlis-e-Shoora (Parliament), Provincial Assembly or a local government, and the Commission shall not
allocate an election symbol to such political party or combination of political parties in subsequent elections.
29
Muhammad Ali v. State Bank of Pakistan 1973 SCMR 140; F. B. Ali v. State PLD 1975 SC 506; M.B. Abbasi v.
State 2009 SCMR 808; Zahid Rehman v. State PLD 2015 SC 77; Tahir Naqash v. State PLD 2022 SC 385.
30
PIA Corporation v. Labour Court PLD 1978 SC 239; Federal Land Commission v. Ghulam Qadir 1983 SCMR 867;
Siddique Khan v. Abdul Shakur PLD 1984 SC 289; UBL v. Yousuf Dhadhi 1988 SCMR 82; Wukala Mahaz v.
Federation of Pakistan PLD 1998 SC 1263; B.I.S.E. v. Rizwan Rashid 2005 SCMR 728; Tahir Hussain v. Liaqat
Ali 2014 SCMR 637 and State Bank of Pakistan v. S.E.C.P. PLD 2018 SC 52.
Civil Appeal No. 333 of 2024 etc. 22

or assumption. Penal actions can only be taken on the basis of express

and clear provisions of law. The act attracting the penal consequence and
the person responsible for it must fairly and squarely fall within the plain
words of the law. Courts are not to strain or stretch the meaning of the
words to bring the act or the subject within the ambit of penal
provisions; in other words, the scope of penal provisions is not to be
extended through liberal construction. Furthermore, if a penal provision
is susceptible to two reasonable constructions, the one that does not
extend the penalty is to be adopted. Any reasonable doubt or ambiguity
is to be resolved in favour of the person who would be liable to the
penalty, and the construction that avoids the penalty is to be adopted.31

34. Another well-established principle of constitutional and statutory

construction is that while the fundamental rights guaranteed in the
Constitution are to be construed progressively and liberally,32 provisions
in the Constitution or in any law that curtail the fundamental rights are
to be construed restrictively and narrowly.33 This principle owes its
genesis to the broader principle of strict construction of statutes
encroaching on rights, which applies to all fundamental rights recognized
by common law, whether or not guaranteed in the Constitution. As per
this principle, statutes that encroach on such rights of the subject are
also subject to strict construction. They are to be construed, if possible,
to protect such rights, and if there is any ambiguity, the construction
that saves the right should be adopted. 34 In a constitutional democracy,
laws are solicitous of the individual rights and liberties of citizens and
interfere with them as little as possible in the public interest. By
adopting a liberal and expansive interpretation of such laws, individual
rights and liberties cannot be curtailed more than expressly provided by
the legislature in the public interest. Therefore, laws that curtail

31
Maxwell on the Interpretation of Statutes (12th ed.) pp. 238-240 and Bennion on Statutory Interpretation (7th ed.) pp.
715-717.
32
Nawaz Sharif v. President of Pakistan PLD 1993 SC 473; Justice Qazi Faez Isa v. President of Pakistan 2022 SCP
140 per Maqbool Baqar, J., et al. and Hamza Rasheed v. Election Appellate Tribunal 2024 SCP 66 per Syed Mansoor
Ali Shah, J.
33
F. B. Ali v. State PLD 1975 SC 506; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Ghulam Mustafa
Jatoi v. Returning Officer 1994 SCMR 1299; Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263 and Hamza
Rasheed v. Election Appellate Tribunal 2024 SCP 66 per Syed Mansoor Ali Shah, J.
34
Maxwell on the Interpretation of Statutes (12th ed.) pp. 251-252 and Bennion on Statutory Interpretation, (7th ed.)
pp. 718-719. (Although Maxwell states that statutes that encroach on the rights of the subject are subject to strict
construction in the same way as penal statutes, we do not go thus far. In our tentative view, which is subject to detailed
examination in an appropriate case, penalties can be imposed only by express enactment, not by necessary implication,
but civil rights can be impaired not only by express enactment but also by necessary implication.)
Civil Appeal No. 333 of 2024 etc. 23

individual rights and liberties, particularly the fundamental rights

guaranteed in the Constitution, are to be construed strictly. 35

35. These principles of statutory construction guide our analysis and

interpretation of the provisions of Section 215(5) of the Elections Act. It is
unequivocal that Section 215(5) prescribes a penal consequence for a
political party’s failure to comply with the provisions of Section 209
(regarding intra-party elections) or Section 210 (regarding the sources of
the party’s funds). The specified penalty of non-allocation of an election
symbol curtails the political party’s fundamental right to function and
operate as a political party—a right implicit in the right to form a political
party guaranteed by Article 17(2) of the Constitution.36 Therefore, Section
215(5) must be construed strictly. No further penalty or consequence
beyond the specified non-allocation of an election symbol can be inferred
or assumed from Section 215(5). Additionally, no other constitutional or
statutory right of the political party can be denied on the basis of the
non-allocation of an election symbol under this provision. Any
interpretation of Section 215(5) that would impose further penalties
beyond the expressly stipulated contravenes the principle of strict
construction of laws that entail penal consequences or curtail
fundamental rights. Thus, the scope of the penalty provided by Section
215(5) must remain confined to its express terms, ensuring that no other
constitutional or statutory right of the political party is affected.

Answer to question (i) and its applicability to PTI

36. In light of the foregoing interpretation, we determine question (i) in

the terms that the sole consequence of declaring a political party
ineligible to obtain an election symbol under Section 215(5) of the
Elections Act for failing to comply with the provisions of Section 209
regarding intra-party elections is the non-allocation of an election symbol
to that party in subsequent elections—nothing more, nothing less.
Furthermore, such a declaration does not affect the political party’s other
constitutional and statutory rights.

37. This was the effect of the Commission’s order dated 22 December
2023 (upheld by this Court vide its order dated 13 January 2024),
declaring PTI ineligible to obtain its election symbol under Section 215(5)

35
Tahir Naqash v. State PLD 2022 SC 385.
36
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; Benazir Bhutto v. Federation of Pakistan PLD 1989 SC
66 and Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
Civil Appeal No. 333 of 2024 etc. 24

of the Elections Act; other constitutional and statutory rights of PTI to

function and operate as a political party were not thereby affected. With
respect, it is observed that had this Court clarified this legal position in
its order dated 13 January 2024, or had the Commission clarified it in its
order dated 22 December 2023 or order dated 13 January 2024, the
entire confusion regarding the status of PTI candidates or PTI’s right to
reserved seats would not have occurred.

38. We feel constrained to observe here that we have some doubts

about whether the Commission has the power to reject the certificate of
intra-party elections submitted by a political party under Section 209,
and whether the Commission exercised its discretion under Section
215(5) justly, fairly and reasonably in PTI’s case, particularly when the
election programme had already been announced and the fundamental
right of citizens to vote for the political party of their choice was at stake.
Similarly, we have certain reservations about how the matter of intra-
party elections—a matter of internal governance of party—can trump the
fundamental rights of citizens to vote and of political parties to effectively
participate in and contest elections through obtaining a common symbol
for their candidates, guaranteed under Articles 17(2) and 19 of the
Constitution. However, since these questions are sub judice in the review
petition filed by PTI against this Court’s judgment dated 13 January
2024, we abstain from examining and expressing our definitive view on
them. (One of us, Justice Muhammed Ali Mazhar, does not want to make
the observations made in this paragraph because review petition against
this Court’s judgment dated 13 January 2024 is pending. He also wishes
to make clear that nothing in this paragraph is intended to or will impact
upon the hearing of the review petition).

Explanation to Rule 94 of the Elections Rules 2017 is ultra vires the

Elections Act and the Constitution

39. The discussion under this question would, however, be incomplete

without determining the legal status of the Explanation to Rule 94 of the
Election Rules 2017 (“Election Rules”). It is pertinent to mention that the
Election Rules have been made by the Commission in the exercise of its
rule-making power under Section 239 of the Elections Act, which
authorises the Commission to make rules for carrying out the purposes
of the Act.
Civil Appeal No. 333 of 2024 etc. 25

40. Rule 9437 provides the procedure for the calculation, allocation and
notification of the share of proportional representation of political parties
in the seats reserved for women and non-Muslims. Its Explanation
stipulates that ‘[f]or the purpose of this rule, the expression “political
party” means a political party to which a symbol has been allocated by
the Commission.’ By defining a political party in this manner, the
Explanation excludes a political party that has not been allotted a
symbol by the Commission from being allocated a share of proportional
representation in the reserved seats. No such exclusion of a political
party, as created by the Explanation to Rule 94, is provided in Articles
51(6)(d) & (e) and 106(3)(c) of the Constitution, nor is any such
consequence of non-allocation of the election symbol provided in Section
215(5) or any other provision of the Elections Act. In effect, it has
introduced an additional penal consequence of declaring a political party
ineligible to obtain an election symbol under Section 215(5) of the
Elections Act, and it has also infringed the constitutional right of a
political party, conferred by Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution, to have its due share of proportional representation in the
seats reserved for women and non-Muslims on the basis of general seats
secured by such a political party. This Explanation has thus clearly gone
beyond and against the provisions of the Elections Act and the
Constitution.

41. It is an established principle of law that rules made under the rule-
making authority conferred by an Act (“parent statute”) can neither
enlarge nor go beyond the scope of the parent statute, nor can they
override or conflict with its provisions. If the rules are repugnant to or
inconsistent with the provisions of the parent statute, they are ultra vires
and invalid. The rule-making authority is conferred to give effect to the
provisions of the parent statute, not to neutralise or contradict them. The
primary purpose of the rules is to provide procedural details for carrying
37
94. Commission to declare seats won by each Political party. — (1) The Commission shall, by notification in the
official Gazette, declare the total number of reserved seats won by each political party in the National Assembly and
the Provincial Assemblies respectively.
(2) The per centum share of each political party shall be worked out with reference to total number of general seats in
the National Assembly, or, as the case may be, the respective Provincial Assembly.
(3) In calculating the number of seats, the highest fraction shall be taken as one seat till the allocation of total reserved
seats in the concerned Assembly is completed.
(4) The seats reserved for non-Muslims and women shall be divided among the political parties on the basis of their per
centum share as worked out in sub-rule (2) and in order of priority of the names of candidates mentioned in the party
list: Provided that the list submitted by a political party shall not be subject to change or alteration, either in the order of
priority or through addition of new names or subtraction of old names after expiry of the date of submission of
nomination papers:
Explanation. — For the purpose of this rule, the expression “political party” means a political party to which a symbol
has been allocated by the Commission.
Civil Appeal No. 333 of 2024 etc. 26

out the purposes of the parent statute. They cannot militate against the
substantive provisions of the parent statute.38 Moreover, just as a
provision in the parent statute that is inconsistent with any provision of
the Constitution is ultra vires the Constitution and thus invalid,39 so too
are the rules made under its authority: the rules that are inconsistent
with any provision of the Constitution are also ultra vires the
Constitution and thus invalid. What cannot be done directly in the
parent statute through primary legislation cannot be done indirectly in
the rules through delegated legislation.

42. In view of the above, the Explanation to Rule 94 of the Election

Rules, being beyond the scope of Section 215(5) of the Elections Act and
inconsistent with the provisions of Articles 51(6)(d) & (e) and 106(3)(c) of
the Constitution, is declared ultra vires the Elections Act and the
Constitution, thus void and invalid.

(ii) Can a candidate nominated by a political party ineligible to obtain an

election symbol be mentioned as an independent candidate in the list of
contesting candidates (Form-33), and can such a returned candidate be
notified as an independent returned candidate in the Section-98
Notification?

43. The answer to question (i) above, has made it easier to address this
question. The only point that requires some discussion here is whether a
political party has a constitutional and/or statutory right to nominate its
candidates for an election to Majlis-e-Shoora (Parliament), Provincial
Assembly or a local government. Fortunately, we need not grapple much
with this point as it has already been discussed at some length and
decided authoritatively by the Full Court Benches of this Court in the
two cases of Benazir Bhutto decided in 1988.40 Instead of burdening this
judgment with extracts from those cases, we find it appropriate to state
summarily what was decided therein on the point under consideration,
with which we respectfully agree.

38
UIB v. Mohan Bashi PLD 1959 SC 296; East Pakistan v. Nur Ahmad PLD 1964 SC 451; Hirjina Salt Chemicals
v. Union Council 1982 SCMR 522; Ziauddin v. Punjab Local Government 1985 SCMR 365; Matloob Ali v. ADJ 1988
SCMR 747; Chairman Railway Board v. Wahab Ud Din & Sons PLD 1990 SC 1034; Mehraj Flour Mills v. Provincial
Government 2001 SCMR 1806; Collector of Sales Tax v. Superior Textile Mills PLD 2001 SC 600; Pakistan v. Aryan
Petro Chemical Industries 2003 SCMR 370; Ahmad Hassaan v. Govt. of Punjab 2005 SCMR 186; Suo Motu Case
No.13 of 2009 PLD 2011 SC 619; Suo Motu Case No.11 Of 2011 PLD 2014 SC 389 and NEPRA v. FESCO 2016
SCMR 550.
39
Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 (Many previous cases on the point are cited and
discussed in it); Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of
Pakistan PLD 2012 SC 923; Lal Khan v. Crown PLD 1955 Lah 215 (FB) and Shorish Kashmiri v. Govt. of West
Pakistan PLD 1969 Lah 438 (DB).
40
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 (decided on 20 June 1988) and Benazir Bhutto v.
Federation of Pakistan PLD 1989 SC 66 (decided on 2 October 1988).
Civil Appeal No. 333 of 2024 etc. 27

Right to contest elections as a political party through its nominated

candidates is a fundamental right under Article 17(2) of the
Constitution

44. Article 17(2) of the Constitution guarantees the right to form or be

a member of a political party. Because the formation of a political party
necessarily implies the carrying on of all its activities, the right to form a
political party extends to its functioning and operation. The functioning
is implicit in the formation of a political party. Without the right to its
functioning, the right to form a political party would be meaningless and
of no avail. To participate in an election to Parliament or a Provincial
Assembly and to nominate or put up candidates at any such election are
the principal activities (functions) of a political party. Depriving a political
party of these activities destroys the political existence of the party and is
tantamount to its political extermination and virtual dissolution, which
cannot be done otherwise than by the procedure and on the grounds
provided in Article 17(2) of the Constitution. The right to participate in
and contest an election as a political party is included in the right to
form or be a member of a political party. Any provision of election law
that fails to recognize the rights of political parties to participate in the
elections is, therefore, ultra vires Article 17(2) of the Constitution.

45. The Nawaz Sharif case41 decided in 1993 by a Full Court Bench of
this Court not only endorsed the above scope of the right guaranteed by
Article 17(2) of the Constitution but also advanced it further. The Court
held that the right to form or be a member of a political party guaranteed
by Article 17(2) includes not only the right to participate in and contest
elections as a political party, as held in the Benazir Bhutto cases, but
also the right to form the Government and complete the prescribed
tenure if the members of the political party constitute the requisite
majority.

46. Being in complete agreement with the above three decisions of the
Full Court Benches of this Court on the scope of Article 17(2), we hold
that the right to participate in and contest elections as a political party
through its nominated candidates is a fundamental right guaranteed by
Article 17(2) of the Constitution. The various sections of the Elections
Act, including Sections 66 and 67, merely serve to give effect to this right
as machinery provisions. This right is not, nor can it be, extinguished by

41
Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
Civil Appeal No. 333 of 2024 etc. 28

any provision of the Elections Act, including Section 215(5) thereof.

Depriving a political party of participating in and contesting elections
through its nominated candidates, it is reiterated, destroys the political
existence of the party and is tantamount to its political extermination
and virtual dissolution, which cannot be done except by the procedure
and on the grounds provided in Article 17(2) of the Constitution. Similar
would be the position if the candidates nominated by a political party are
denied the status of being the candidates of that political party and are
mentioned as independent candidates in the list of contesting candidates
(Form-33), or such returned candidates are notified as independent
returned candidates in the Section-98 Notification. Such actions of the
Returning Officers and the Commission would also be ultra vires Article
17(2) of the Constitution, as they effectively nullify the party’s right to
participate in and contest elections.

The order of the Commission, dated 2 February 2024, made on the

application of Mr. Salman Akram Raja (a PTI candidate) was both
unconstitutional and unlawful.

47. As the Commission’s order dated 2 February 2024, passed on the

application of Mr. Salman Akram Raja (“Mr. Raja”), a PTI candidate,
pertains to question (ii) under discussion, we deem it necessary to
examine the legality of that order alongside answering this question, in
order to ensure a comprehensive understanding of the matter. As noted
above, when the Returning Officers published the lists of contesting
candidates (Form-33), PTI candidates were mentioned therein as
independent candidates. Mr. Raja, one of such candidates, challenged
this entry in the list of contesting candidates (Form-33) before the
Commission. However, the Commission, by its order dated 2 February
2024, rejected his challenge and declared him an independent candidate.
In its order, the Commission reasoned:

Notwithstanding, the affiliation of the petitioner with PTI and alleged

party ticket including entries of party affiliation in the nomination papers
of the petitioner, he cannot be treated as nominee of PTI nor his party
(PTI) can be reflected in column 5 of Form 33 in absence of party symbol.
…….
The petitioner has been allotted symbol from the chart available for
independent candidates as the party to which he claims affiliation has
not been allocated Election Symbol by the Commission. Allowing any
entry in absence of party symbol in column 5 of Form 33 and entry [of]
applicant’s name as Candidate of PTI will contradict the symbol and
identity of Party as the petitioner is declared as an independent
candidate.
(Emphasis supplied)
Civil Appeal No. 333 of 2024 etc. 29

To further support its decision, the Commission also relied upon the
following observation of this Court made in its order dated 13 January
2024:

Surprisingly, no declaration was sought, nor given, that intra party

elections were held in PTI, let alone that the same were held in
accordance with the law. If it had been established that elections had
been held then ECP would have to justify if any legal benefit to such a
political party was being withheld, but if intra party elections were not
held the benefits accruing pursuant to the holding of elections could not
be claimed.
(Emphasis supplied)

From the cited extracts of the Commission’s order, it appears that the
Commission rejected Mr. Raja’s claim primarily because he had been
allotted a symbol from the chart of symbols prescribed for independent
candidates, and the party (PTI) whose candidature he sought to be
mentioned in Form-33 had not been allocated an election symbol. The
Commission’s reliance on the cited observation of this Court indicates
that it understood a political party’s capacity to nominate candidates for
an election as one of “the benefits accruing pursuant to the holding of
[intra-party] elections.”

48. In defending the Commission’s order and the Returning Officers’

act of mentioning PTI candidates as independent candidates in Form-33,
the learned counsel for the Commission took pains to explain the
provisions of Section 67 42 of the Elections Act. According to him, Section
67 classifies candidates for symbol allocation into two categories: (i)
candidates nominated by a political party that has been allocated a
symbol by the Commission under Chapter XII, who are allotted the party
symbol under subsection (2) of Section 67, and (ii) candidates not
nominated by any political party, who are treated as independent
candidates and are allotted one of the symbols not allocated to any
political party. He emphasised that Section 67 does not recognise any

42
67. Contested election and allotment of symbols. — (1) If after withdrawal, if any, there are more than one
contesting candidates in the constituency, the Returning Officer shall allot, subject to any direction of the Commission,
one of the prescribed symbols to each contesting candidate.
(2) A candidate nominated by a political party at an election in any constituency shall be allotted the symbol allocated
by the Commission to that political party under the provisions of Chapter XII and no other symbol.
(3) A candidate not nominated by any political party (hereinafter called as “independent candidate”) shall choose and
shall be allotted one of the symbols not allocated to any political party, in the following manner—
(a) where a symbol has been chosen by only one independent candidate, that symbol shall be allotted to that
candidate and to no one else;
(b) if a symbol is chosen by more than one independent candidates and one of them has previously been a
Member of the National Assembly or a Provincial Assembly, such symbol shall be allotted to that former
Member; and
(c) if more than one independent candidates have given preference for the same symbol, that symbol shall be
allotted by drawing of lots.
(4) No symbol shall be allotted to any candidate other than the prescribed symbols.
(5) In every constituency where election is contested, different symbol shall be allotted to each contesting candidate.
Civil Appeal No. 333 of 2024 etc. 30

third category of candidates, such as candidates who are nominated by a

political party (like PTI) that has not been allocated a symbol by the
Commission under Chapter XII of the Elections Act.

49. We have given careful consideration to his arguments. We find that

his focus has been solely on the express words of subsections (2) of
Section 67, while overlooking its necessary implication. This necessary
implication becomes clear when we invert the statement made in
subsection (2) of Section 67. This subsection states that “[a] candidate
nominated by a political party at an election in any constituency shall be
allotted the symbol allocated by the Commission to that political party
under the provisions of Chapter XII and no other symbol.” By inverting
this statement, we find as a necessary implication that a candidate
nominated by a political party that has not been allocated a symbol by
the Commission shall not be allotted the symbol declined by the
Commission to that political party under Chapter XII, but rather any
other symbol. Since any other symbol is allotted to candidates under
subsection (3) of Section 67, a candidate nominated by a political party
(such as PTI) that has not been allocated a symbol by the Commission is
to be allotted, under that sub-section, one of the symbols not allocated to
any political party. However, the allocation of a symbol under subsection
(3) does not alter the candidate’s status as a nominee of the political
party, which is determined under Section 66 on the basis of his
declaration and the party certificate (party ticket) issued in his favour.

50. The construction of subsections (2) and (3) of Section 67 proposed

by the learned counsel for the Commission, if accepted, would extinguish
the fundamental right guaranteed by Article 17(2) of the Constitution to
participate in and contest elections as a political party through its
nominated candidates. As held above, the various sections of the
Elections Act, including Sections 66 and 67, merely serve to give effect to
this fundamental right as machinery provisions, which cannot be
extinguished by any provision of the Elections Act, including Section
215(5) thereof.

51. In view of the above, the Commission’s order dated 2 February

2024 and the Returning Officers’ act of mentioning PTI candidates as
independent candidates in Form-33 were both unconstitutional and
unlawful, and they are hereby declared as such. It would also be
Civil Appeal No. 333 of 2024 etc. 31

appropriate to clarify that the Commission’s reliance on the cited

observation of this Court made in paragraph 1143 of its order dated 13
January 2024 was misconceived and misplaced, as that observation
pertained to Section 215(5) and not to Sections 66 and 67 of the
Elections Act.

Difference between “interpretation” and “construction” of statutes

52. To explain how we have determined and declared the above legal
position, despite it not being explicitly stated in subsections (2) and (3) of
Section 67, as argued by the learned counsel for the Commission, we
may underline a subtle difference between “interpretation” and
“construction” of statutes. ‘Strictly speaking, construction and
interpretation are not the same’, as Crawford wrote and this Court
approvingly cited it in Haider Zaidi,44 ‘although the two terms are often
used interchangeably. Construction, however, to be technically correct, is
the drawing of conclusions with respect to subjects that are beyond the
direct expression of the text, from elements known and given in the text,
while interpretation is the process of discovering the true meaning of the
language used. … The process to be used in any given case will depend
upon the nature of the problem presented. And, as is apparent, both
processes may be used in seeking the legislative intent in a given statute.
If the legislative intent is not clear after the completion of interpretation,
then the court will proceed to subject the statute to construction.’45 We
have thus drawn the above conclusion by construction from the
“elements known and given in the text” of the provisions of Sections 66,
67 and 215(5) of the Elections Act as a necessary implication thereof.

53. It may however be clarified, as Crawford also did, that since for
most practical purposes it is sufficient to designate the whole process of
ascertaining the legislative intent as either interpretation or construction,
the said distinction between the two processes has little importance so
far as the courts are concerned and is usually relegated to the realm of
academic discussion. But, as Crawford emphasised and so we do for our
present purpose, ‘by breaking the process of finding the legislative intent
43
This Court’s order dated 13 January, complete para 11: “11. Neither before the LHC nor before the PHC any
provision of the Act, including section 215(5), was challenged. The observation of the learned Judges that the provision
of the law was absurd was uncalled for, particularly when no provision thereof was declared to be unconstitutional.
Surprisingly, no declaration was sought, nor given, that intra party elections were held in PTI, let alone that the same
were held in accordance with the law. If it had been established that elections had been held then ECP would have to
justify if any legal benefit to such a political party was being withheld, but if intra party elections were not held the
benefits accruing pursuant to the holding of elections could not be claimed.”
44
Haider Zaidi v. Abdul Hafeez 1991 SCMR 1699.
45
Crawford, The Construction of Statutes, (1st ed.) pp. 240-242.
Civil Appeal No. 333 of 2024 etc. 32

into these two processes whose characters depend upon whether the
court, strictly speaking, interprets or constructs the legislative enactment
at hand, some light is shed upon how the courts exercise the judicial
function of ascertaining the legislative intention.’46

Answer to question (ii) and its applicability to PTI

54. In view of the above, we answer question (ii) as follows:

notwithstanding that a political party has been declared ineligible to
obtain an election symbol, its nominated candidates cannot be
mentioned as independent candidates in the list of contesting candidates
(Form 33), despite allotment of different election symbols to them under
Section 67(3) of the Elections Act, nor can they be notified as
independent returned candidates in the Section-98 Notification.

55. Therefore, PTI’s nominated candidates were wrongly shown

independent candidates in the list of contesting candidates (Form 33) by
the Returning Officers and were also wrongly notified as independent
returned candidates in the Section-98 Notification by the Commission.

Validity of party tickets issued by Mr. Gohar Ali Khan as Chairman

PTI

56. Before parting with this part of the judgment, it is necessary to

address an ancillary point stated by the Commission in its order dated 2
February 2024 in rejecting Mr. Raja’s claim. The Commission maintained
that since the election of Mr. Gohar Ali Khan as Chairman of PTI had not
been accepted by the Commission, he could not have issued the party
ticket to Mr. Raja. We find that the Commission failed to recognise that
its order dated 22 December 2023 regarding the intra-party elections of
PTI was not in force from 26 December 2023 (when the Peshawar High
Court suspended the Commission’s order) to 13 January 2024 (when
this Court restored the Commission’s order). During this period, Mr.
Gohar Ali Khan was holding the office of Chairman of PTI and had,
therefore, validly issued party tickets to PTI candidates, including Mr.
Raja.

57. We may also underline here that, notwithstanding a political

party’s failure to comply with the provisions of Section 209 of the
Elections Act relating to its intra-party elections, the political party

46
Ibid.
Civil Appeal No. 333 of 2024 etc. 33

remains an enlisted political party, fully functional for the purposes of its
formation, i.e., ‘propagating or influencing political opinion and
participating in elections for any elective public office or for membership
of a legislative body, including an Assembly, the Senate, or local
government.’47 The only consequence of not complying with the said
provisions of the Elections Act, as aforementioned, is that such a political
party is not to be allocated an election symbol. It would be completely
illogical to assume that a political party, a juristic person, is fully
functional yet there are no natural persons who are either de facto or de
jure performing its functions and running its affairs. We all know that
juristic persons act through natural persons. An enlisted political party
is a juristic person, and like other juristic persons, it acts through
natural persons. Saying that a political party is an enlisted political
party, fully functional for the purposes of its formation, yet there is no
one that can perform its functions and run its affairs, amounts to
blowing hot and cold in the same breath or approbating and reprobating
one and the same fact. Therefore, after the intra-party elections (which
were not later accepted by the Commission), Mr. Gohar Ali Khan had
assumed at least de facto charge of PTI’s functions and affairs as its
Chairman. Consequently, the acts performed by him on behalf of PTI
before 13 January 2024, when this Court restored the Commission’s
order dated 22 December 2023 declining to accept the intra-party
elections, were fully valid and effective.

58. It is further clarified that when the office-bearers of a political

party are elected under Section 208 of the Elections Act, in accordance
with the party’s constitution, and a certificate to that effect is submitted
to the Commission under Section 209, the newly elected office-bearers de
facto assume the functions of the party until the Commission accepts or
rejects the elections. Upon acceptance, they also assume the functions of
the party de jure. In the case of rejection of the intra-party elections, the
previous office-bearers are reinstated, for no political party, as held
above, can exist without either de facto or de jure office-bearers to
perform its functions and manage its affairs. In this regard, the
clarification dated 14 September 2024, passed by us on an application of
the Commission, shall also be read as part of this judgment and is
reproduced hereunder for the completion of the record:

47
The Elections Act, Section 2(xxviii).
Civil Appeal No. 333 of 2024 etc. 34

Through CMA 7540/2024, and in terms [para 10] of the short order dated
12.07.2024 whereby these appeals were decided by majority (“Short Order”)
the Election Commission of Pakistan (“Commission”) purports to seek
guidance on the point that “[i]n absence of a valid organizational
structure of Pakistan Tehreek-i-Insaf (PTI), who will confirm the
political affiliation of the returned candidates (MNAs and MPAs) on behalf of
PTI, who have filed their statements in light of the Supreme Court Order
[dated 12 July 2024].” We may note that other than a copy of the Short
Order the application is bereft of any other documentation.

2. In reply to the above application, the PTI has filed CMA 8139/2024,
to which have been annexed a number of documents, including
correspondence between the PTI and the Commission. We have considered
the material that has been placed before us.

3. By way of brief recapitulation, in paragraphs 4 and 5 of the Short

Order it has been categorically declared that the lack or denial of an election
symbol does not in any manner affect the constitutional and legal rights of a
political party to participate in an election (whether general or bye) and to
field candidates, and that for the purposes, and within the meaning, of
paragraphs (d) and (e) of clause (6) of Article 51 and paragraph (c) of clause
(3) of Article 106 of the Constitution of the Islamic Republic of Pakistan, PTI
was and is a political party, which secured or won (the two terms being
interchangeable) general seats in the National and Provincial Assemblies in
the General Elections of 2024 as provided in that Order. These paragraphs,
and the preceding paragraph 3 of the Short Order, sound on the
constitutional plane, being the proper interpretation and understanding of
the relevant constitutional provisions. The other paragraphs of the Short
Order, including in particular paragraphs 8 and 10, are consequential upon
what has been held and declared in the paragraphs just noted, and flow and
emanate from, and give effect to, constitutional conclusions. All of these
points will be explicated in the detailed reasons for the decision of the
majority (i.e., the Short Order), which is the binding judgment of the Court.

4. Turning now to the specific clarification purportedly sought, the PTI

in its reply has annexed a number of notices issued by the Commission to
the PTI through Barrister Gohar Ali Khan, in which it has itself identified
the latter as the Chairman of PTI. Furthermore, the certifications required to
be issued by a political party (here the PTI) and filed with the Commission in
terms of paragraphs 8 and 10 of the Short Order have, as per the record
placed before us in relation to the returned candidates (now respectively
MNAs and MPAs) in the National and the Sindh, Punjab and Khyber
Pakhtunkhwa Provincial Assemblies, been issued under the signatures of
Barrister Gohar Ali Khan and Mr. Omar Ayub Khan, who are identified
therein as being, respectively, the Chairman and Secretary General of the
PTI. These certifications are dated 18.07.2024, 24.07.2024 and 25.07.2024
and list, in each case, the particulars of the relevant returned candidate
(now MNA or MPA as the case may be) and in particular the dates on which
the declaration required of the candidate (again, in terms of paragraphs 8
and 10 of the Short Order) was filed with the Commission. These dates
obviously all precede the respective dates of certification.

5. Putting together the record placed before us, and considering the
same in the light of the Short Order, leaves in little doubt that the
clarification sought by the Commission in terms of the CMA 7540/2024 is
nothing more than a contrived device and the adoption of dilatory tactics,
adopted to delay, defeat and obstruct implementation of the decision of the
Court. This cannot be countenanced. Even on the application of elementary
principles of law, the application filed by the Commission is misconceived.
Having itself recognized Barrister Gohar Ali Khan as the Chairman of PTI,
the Commission cannot now turn around and purport to seek guidance from
the Court with regard to how the certifications are to be dealt with. The
Commission cannot approbate and reprobate, taking whatever (shifting)
Civil Appeal No. 333 of 2024 etc. 35

stance as it desires and as may seem to suit its immediate purposes for the
moment. Furthermore, the Commission, even if one were to consider the
application in the most sympathetic light, has apparently forgotten the well
known de facto doctrine or rule, in terms of which the acts of a person who
holds an office are protected even if there may be (and no such conclusion is
reached here in relation to the PTI) any issue with the position de jure. It
sufficed and the Commission was duty bound in terms of the Constitution
to keep in mind that the admitted position (as stated before the Court
during the hearing of the appeals) is that the PTI was, and is, an enlisted
political party. This position was not only accepted and relied upon by us
(eight Judges) but also by our three learned colleagues in minority (Hon’ble
the Chief Justice, Justice Yahya Afridi and Justice Jamal Khan
Mandokhail). Their lordship appear to have also accepted the validity of the
party certificates (party tickets) issued by Barrister Gohar Ali Khan and thus
his capacity to act for PTI as its Chairman. Furthermore, having itself issued
notices to the PTI through Barrister Gohar Ali Khan as its Chairman, the
Commission gave recognition to both the party and the office holder. That
sufficed absolutely for purposes of the Short Order. It would be completely
illogical to assume that a political party, a juristic person, is fully functional
yet there are no natural persons who are either de facto or de jure
performing its functions or running its affairs. Saying (as the Commission
now in effect does through CMA 7540/2024) that a political party is an
enlisted political party, fully functional for the purposes of its formation, yet
there is no one that can perform its functions and run its affairs, amounts
to blowing hot and cold in the same breath or, as noted, approbating and
reprobating one and the same fact. There could have been no conceivable
doubt that the certifications referred to above were correct and valid in
terms of the Short Order and the continued denial and refusal of the
Commission to accept the same, as and when filed, is constitutionally and
legally incorrect and may expose the Commission to such further or other
action as may be warranted in terms of the Constitution and the law.

6. But there is another, and more fundamental, aspect that must also
be alluded to. It was categorically declared in paragraph 8 of the Short Order
that on filing the requisite statement and its confirmation by the political
party concerned, the seat secured by such candidate shall be forthwith
deemed to be a seat secured by that political party. Therefore, upon
submission of the declarations and certifications referred to above, the
position of the returned candidates (now respectively MNAs and MPAs)
immediately and ipso facto stood determined and fixed as a matter of law as
on those dates and no subsequent act can alter what became, on the
respective dates, past and closed transactions. As per the position so
determined, the said returned candidates were and are the returned
candidates of PTI and thus members of the parliamentary party of PTI in the
National Assembly and Provincial Assemblies concerned, for all
constitutional and legal purposes. The attempt by the Commission to
confuse and cloud what is otherwise absolutely clear as a matter of the
Constitution and the law must therefore be strongly deprecated. The list
required to be issued by the Commission in terms of paragraph 8 (read with
paragraph 10) of the Short Order is nothing more than a ministerial act, for
the information and convenience of all concerned, and has no substantive
effect. Nonetheless, the continued failure of, and refusal by, the Commission
to perform this legally binding obligation may, as noted, have consequences.
This obligation must be discharged forthwith.

7. With the above clarifications, the present application is disposed of.

Office shall dispatch a copy of this order to the respective parties.

We may underline here that, as the Commission sought clarification

of our short order dated 12 July 2024 in order to give effect to it, in
terms of para 10 thereof, there was no legal requirement, nor did we
Civil Appeal No. 333 of 2024 etc. 36

find it necessary, to hear the parties before clarifying our own order
on the point regarding which the Commission was unclear. Thus, we
provided the above clarification without issuing notice to, or
hearing, the parties on the Commission's application.

(iii) Do Articles 51(6)(d) & (e) and 106(3)(c) of the Constitution refer to
political parties that have contested for and won general seats or to all
enlisted political parties?

59. This question was much debated during the arguments presented
by the learned counsel for the parties. It arises from their two rival
contentions. The learned counsel for SIC contended that Articles 51(6)(d)
& (e) and 106(3)(c) of the Constitution refer to all enlisted political parties
that have “secured” general seats, either directly through their
nominated candidates or through the joining of independent returned
candidates. Conversely, the learned counsel for the Commission and
other respondents argued that Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution refer only to those political parties that have contested and
won one or more general seats directly through their nominated
candidates.

60. The provisions of Articles 51(6)(d) & (e) and 106(3)(c) of the
Constitution are identical in their wording; the only difference is in their
application. Article 51(6)(d) & (e) relates and applies to the seats reserved
for women and non-Muslims in the National Assembly, while Article
106(3)(c) relates and applies to such seats in the Provincial Assemblies.
Therefore, we shall discuss and determine the meaning of the provisions
of Article 51(6)(d) & (e), which shall also apply mutatis mutandis to
Article 106(3)(c) of the Constitution. The provisions of Articles 51(6)(d) &
(e), along with other relevant clauses of the same Article, are reproduced
here for reading and reference:

51. (1) There shall be three hundred and thirty-six seats for members
in the National Assembly, including seats reserved for women and non-
Muslims.
(2) …….
(3) The seats in the National Assembly referred to in clause (1), except
the seats mentioned in clause (4), shall be allocated to each Province and
the Federal Capital as under: ––
General Women Total
Seats Seats Seats

Balochistan 16 4 20
Khyber Pakhtunkhwa 45 10 55
Punjab 141 32 173
Sindh 61 14 75
Federal Capital 3 - 3
Civil Appeal No. 333 of 2024 etc. 37

Total 266 60 326

(3A) …….
(4) In addition to the number of seats referred to in clause (3), there shall
be, in the National Assembly, ten seats reserved for non-Muslims.
(5) …….
(6) For the purpose of election to the National Assembly, –
(a) …….
(b) each Province shall be a single constituency for all seats reserved for
women which are allocated to the respective Provinces under clause (3);
(c) the constituency for all seats reserved for non-Muslims shall be the
whole country;
(d) members to the seats reserved for women which are allocated to a
Province under clause (3) shall be elected in accordance with law through
proportional representation system of political parties’ lists of candidates
on the basis of total number of general seats secured by each political
party from the Province concerned in the National Assembly:
Provided that for the purpose of this paragraph the total number
of general seats won by a political party shall include the independent
returned candidate or candidates who may duly join such political party
within three days of the publication in the official Gazette of the names of
the returned candidates; and
(e) members to the seats reserved for non-Muslims shall be elected in
accordance with law through proportional representation system of
political parties’ lists of candidates on the basis of total number of
general seats won by each political party in the National Assembly:
Provided that for the purpose of this paragraph the total number
of general seats won by a political party shall include the independent
returned candidate or candidates who may duly join such political party
within three days of the publication in the official Gazette of the names of
the returned candidates.
(Emphasis added)

A plain, literal reading of the above provisions of Article 51 of the

Constitution shows that there are three hundred and thirty-six (336)
seats for members in the National Assembly, including sixty (60) seats
reserved for women and ten (10) for non-Muslims. Each Province is a
single and separate constituency for all seats reserved for women
allocated to that Province in the National Assembly, while the
constituency for all seats reserved for non-Muslims is the whole country.
Members for both the seats reserved for women and non-Muslims are
elected in accordance with the law through a proportional representation
system of political parties from the lists of their candidates. However,
because of the said difference in constituencies, members to the seats
reserved for women are elected on the basis of the total number of
general seats secured by each political party in the National Assembly
from the Province concerned, while members to the seats reserved for
non-Muslims are elected on the basis of the total number of general seats
won by each political party in the whole National Assembly irrespective of
Civil Appeal No. 333 of 2024 etc. 38

the Province from which it wins such general seats. The total number of
general seats won by a political party, for the purpose of determining its
share in the proportional representation system, includes independent
returned candidate(s) who may duly join such political party within three
days of the publication of the names of the returned candidates in the
official Gazette.

61. In support of his contention, the learned counsel for SIC argued
that the proviso to Article 51(6)(d), which allows independent returned
candidates to join a political party, makes it possible for a political party
that has not contested and won any general seats directly through its
nominated candidates to “secure” some general seats from the Province
concerned through the joining of independent returned candidates. He
emphasised the use of the word “secured” in Article 51(6)(d) rather than
the word “won”.

62. We have observed that the main provisions of paragraph (e) of

Article 51(6) and the proviso thereof, which pertains to seats reserved for
non-Muslims, both use the word “won” instead of “secured”. This
paragraph is to be interpreted in conjunction with paragraph (d) of
Article 51(6), which relates to seats reserved for women, as no argument
was presented to us from any of the learned counsel for the parties
suggesting that paragraph (e) should be interpreted differently from
paragraph (d). Nor do we find any reason or logic to interpret them
differently. The only difference between them, as noted above, is with
regard to the constituencies: for the election of members to seats
reserved for women, each Province is a single and separate constituency,
while for the election of members to seats reserved for non-Muslims, the
whole country is the constituency. Furthermore, the term “won” is used
in the provisos to both paragraphs (d) and (e) of Article 51(6). Considering
both these closely related provisions conjunctively and harmoniously, we
find that the words “secured” and “won” have been used interchangeably.
Thus, nothing turns on the use of the word “secured” in paragraph (d) of
Article 51(6).

Presumption that same words used in a statute carry same meaning

and different words different meanings, is not absolute.

63. Although it is reasonable to presume that the same meaning is

implied by the use of the same word in every part of a statute or a
section thereof and that a change of word denotes a change in meaning,
Civil Appeal No. 333 of 2024 etc. 39

the presumption is neither absolute nor determinative in all cases. The

context takes precedence over this presumption in ascertaining the
meaning of words used in a statute, as even the statutory definitions of
the words and expressions are subject to this consideration. Therefore, it
is quite possible that the same word may be used in different meanings
in a statute or in a section of the statute, or, conversely, different words
may be used for the same meaning. The causes for this may be various,
as pointed out by Maxwell and Bennion, including that the statute is a
consolidating enactment where the words are derived from two or more
earlier enactments, or the statute is compiled from different sources, or
the statute is the product of many minds jointly, or the statute
undergoes alterations and additions from various hands in the process of
its enactment in the Legislature, etc.48

Words “secured” and “won” carry the same meaning in paragraph

(d) of Article 51(6) and have been used interchangeably in its main
provisions and proviso.

64. We find that a similar circumstance might have caused the use of
different words in the main provisions of Article 51(6)(d) and the proviso
thereto for the same meaning—the word “secured” in the main provisions
of paragraph (d) of Article 51(6) and the word “won” in the proviso
thereto—either because both have been compiled from different sources
or because different minds produced each of them. The legislative
intention to mean “won” by both expressions is explicitly evident from the
use of the word “won” both in the main provisions of the closely related
paragraph (e) of Article 51(6) as well as in the proviso thereto. Even the
drafter of the proviso to paragraph (d) of Article 51(6) appears to have
assumed that the word “won” had been used in the main provisions, as
he referred to them as such in the proviso. Therefore, it can be concluded
with reasonable certainty that the words “secured” and “won” carry the
same meaning in paragraph (d) of Article 51(6) and have been used
interchangeably in its main provisions and proviso.

65. Once we have concluded that the words “secured” and “won” carry
the same meaning in paragraph (d) of Article 51(6) and have been used
interchangeably in its main provisions and proviso, the word “won” being
specific and clearer than the word “secured” must be our guide in

48
Maxwell on the Interpretation of Statutes (12th ed.) pp. 278-289 and Bennion on Statutory Interpretation (7th ed.) pp.
513-517. See also Craies on Legislation (9th ed.) pp. 693-694.
Civil Appeal No. 333 of 2024 etc. 40

construing the provisions of the said Article. Because when a statute, or

any other instrument, uses two different words for the same meaning
and any ambiguity arises as to the meaning of one of those words, the
word which is specific and clearer should guide the interpretation of the
general and obscure word, not vice versa. So read, the main provisions of
paragraph (d) of Article 51(6) clearly refer to political parties that have
“won” general seats in the National Assembly from the Province
concerned. The consequential point, which hardly requires extensive
supporting arguments, emerges inevitably that political parties win
general seats by contesting for such seats through their nominated
candidates.

66. Learned counsel for SIC did not dispute that political parties win
general seats by contesting for such seats through their nominated
candidates. His argument was that the proviso equates a political party
that secures general seats by the joining of independent returned
candidates with one that wins such seats directly through its nominated
candidates as mentioned in the main provisions of paragraph (d) of
Article 51(d). We are not impressed by this argument as it misconceives
the subject and object of the proviso.

The subject and object of the proviso to Article 51(6)(d)

67. The subject and focus of the proviso, as we understand it, is on the
“general seats” i.e., “general seats won (secured) by a political party”, and
not on the political party winning (securing) such seats. Its object is to
prescribe how the “total number of general seats won (secured) by a
political party” is to be determined for the purpose of the paragraph, not
to define or explain political parties for the purpose of the paragraph.
Had the proviso stated that, for the purpose of this paragraph, the
political party winning general seats shall include a political party
securing general seats by the joining of independent returned
candidates, the argument would have had some weight. But the language
of the proviso is not to this effect. The proviso does not in any way extend
or explain the meaning of the expression “political party” as used in the
main provisions of the paragraph.

The proviso to Article 51(6)(d) is not a true proviso

68. A true proviso, as is well established, serves as an exception to the

main provisions to which it is added. It excepts a particular case from
Civil Appeal No. 333 of 2024 etc. 41

the rule stated in the main provisions by limiting or qualifying the

applicability of the main provisions. Its effect is generally described as
being that, but for the proviso, the main provisions would have included
the subject matter of the proviso. 49 However, since it is not the form but
the substance that matters, the clear language of both the main
provisions and the proviso may establish, as held by this Court in
Hamdard Dawakhana,50 that the proviso is not a limiting or qualifying
clause of the main provisions but is, in itself, a substantive provision.
Therefore, the best principle is that irrespective of the label, the contents
of the main provisions and the proviso are to be read and construed
together to ascertain the intention of the Legislature.

69. For determining the true character of the proviso presently under
consideration, we find the Privy Council’s case of Atwill51 very
enlightening. In that case, their Lordships of the Privy Council
overturned the decision of the High Court of Australia, which had treated
the proviso in its classic meaning, i.e., limiting or qualifying what
precedes it. Their Lordships of the Privy Council did not agree and
remarked:

While in many cases that is the function of a proviso, it is the substance

and content of the enactment, not its form, which has to be considered,
and that which is expressed to be a proviso may itself add to and not
merely limit or qualify that which precedes it.
……
In a strict sense the use of the words “Provided that” in section 102(a)
may also be disregarded as inapt. The meaning of that provision and the
proviso would be the same if instead of the words “Provided that” there
had appeared the word “and” … and to ascertain the true effect of the
provision, the second part, that is to say, the proviso, is complementary
and necessary in order to ascertain the full intention of the Legislature.

To strengthen their opinion, their Lordships cited the following

observation of Lord Loreburn, L.C., made in the case of Taff Vale Railway
Company:52

But it is also true that the latter half of it, though in form a proviso, is in
substance a fresh enactment, adding to and not merely qualifying that
which goes before.

49
East & West Steamship Co. v. Pakistan PLD 1958 S C 41 (5MB) per Cornelius, J.; Pramatha Nath v. Kamir Mondal
PLD 1965 SC 434; Hamdard Dawakhana v. C.I.T. PLD 1980 SC 84 (5MB); Kadir Bux v. Province of Sind 1982
SCMR 582 (5MB); K.E.S.C. Progressive Workers' Union v. K.E.S.C. Labour Union 1991 SCMR 888 (4MB) and
Nawab Bibi v. Allah Ditta 1998 SCMR 2381.
50
Hamdard Dawakhana v. C.I.T. PLD 1980 SC 84 (5MB). See also C.I.T. v. M/s Phillips Holzman PLD 1968 Kar. 95
(FB) and PIFFA v. Province of Sindh 2017 PTD 1 (DB).
51
Commissioner of Stamp Duties v. Atwill [1973] AC 558.
52
Rhondda Urban District Council v. Taff Vale Railway Company [1909] AC 253.
Civil Appeal No. 333 of 2024 etc. 42

Their Lordships also cited extensively similar observations made by

Viscount Maugham and Lord Wright in the case of Jennings,53 on
determining the true meaning of a proviso.

70. We find that the observations made by their Lordships of the Privy
Council in Atwill fully apply to the proviso presently under consideration.
In our opinion, the meaning of the main provisions of paragraph (d) of
Article 51(6) and the proviso thereto would be the same if instead of the
words “Provided that”, there had appeared the word “and”. In our
considered opinion, to determine the true effect of the main provisions as
per the intention of the Legislature, the second part, i.e., the proviso, is
to be read as complementary to, not limiting or qualifying, the first part,
i.e., the main provisions. This approach is also consistent with the
principle stated above that irrespective of the label, the contents of the
main provisions and the proviso are to be read and construed together to
ascertain the intention of the Legislature.

71. We have determined above that the main provisions of paragraph

(d) of Article 51(6) refer to political parties that have won general seats in
the National Assembly from the Province concerned through their
nominated candidates. The proviso stipulates that for the purpose of this
paragraph, the total number of general seats won by a political party
shall include any independent returned candidate or candidates who
may duly join such political party. Without the proviso, the general seats
won by independent returned candidates could not be considered as
seats won by a political party. Therefore, the proviso, in the words of
Lord Loreburn, ‘is in substance a fresh enactment, adding to and not
merely [limiting or] qualifying that which goes before’ in the main
provisions. Since the proviso does not except anything from the main
provisions of paragraph (d) of Article 51(6) by limiting or qualifying them
but rather adds to them, it is not a true proviso but a substantive
provision that enacts a matter which would not otherwise have been
covered by the main provisions of the paragraph.

72. However, the latter part of the proviso is, in the true sense, a
proviso as it qualifies that which goes before, i.e., including the seats of
independent returned candidates in the seats won by the political party
to which they join, for the purpose of the paragraph. According to this

53
Jennings v. Kelly [1940] AC 206.
Civil Appeal No. 333 of 2024 etc. 43

part, for the joining to have the stipulated effect, it must occur within
three days of the publication of the names of the returned candidates in
the official Gazette. It thus excludes any joining of independent returned
candidates made beyond that period from having effect for the purpose of
the paragraph.

The effect of the use of the word “such” with “political party” in the
latter part of the proviso

73. It is also a general rule of literal construction of statutes that ‘a

qualifying or relative word, phrase, or clause, such as “which”, “said” and
“such”, is to be construed as applying to the word, phrase or clause next
preceding, or as is frequently stated, to the next preceding antecedent,
and not as extending to or including others more remote, unless a
contrary intention appears.’54

74. The latter part of the proviso uses the qualifying term “such
political party”, to which the independent returned candidate or
candidates may duly join. When we apply the above general rule to this
qualifying term, it becomes evident that it refers to the term “a political
party” next preceding, where the noun “political party” has been used to
denote a political party that has won general seats. It thus inevitably
follows that for the purpose of paragraph (d) of Article 51(6) and within
the scope of the proviso, the independent returned candidate or
candidates may duly join, or be allowed to join, only such a political
party that has won one or more general seats through its nominated
candidates in the National Assembly from the Province concerned.

Harmonious reading of Article 51(6(d) with Article 63A(2)

75. A constitution, as defined by Cooley, is ‘the fundamental law of a

state, containing the principles upon which the government is founded,
regulating the division of the sovereign powers, and directing to what
persons each of these powers is to be confined, and the manner in which
it is to be exercised.’55 Therefore, it is a fundamental principle of
constitutional construction, well entrenched in our constitutional
jurisprudence, that a constitution must be construed as an organic
whole, harmonising its various parts, particularly those closely
interlinked, and trying to give due effect to all of them, so as to make it
an effective and efficacious instrument for the smooth and good
54
Maxwell on the Interpretation of Statutes (12th ed.) p. 331.
55
Cooley, A treatise on the Constitutional Limitations, (1st ed.) p. 2.
Civil Appeal No. 333 of 2024 etc. 44

governance of the state—one of the ultimate objectives sought to be

achieved by it.56

76. In view of this principle of constitutional construction, the learned

Attorney-General for Pakistan drew our attention to the provisions of
clause (2) of Article 63A, which defines a member of a Parliamentary
Party and also sheds light on how a political party constitutes a
Parliamentary Party. Relying upon these provisions of Article 63A, he
argued that only a political party whose nominated candidates become
members of a House constitutes a Parliamentary Party. Therefore, he
contended, the same meaning ought to be given to the expression
‘political party’ in clause (d) of Article 51(6), to harmonise both provisions
with each other.

77. We have given anxious consideration to his contention and found it

very persuasive and harmonious with the view which we are inclined to
take on the meaning of the term “political party” used in Article 51(6)(d).
The provisions of clause (2) of Article 63A are reproduced here for ready
reference:

(2) A member of a House shall be deemed to be a member of a

Parliamentary Party if he, having been elected as a candidate or nominee
of a political party which constitutes the Parliamentary Party in the
House or, having been elected otherwise than as a candidate or nominee
of a political party, has become a member of such Parliamentary Party
after such election by means of a declaration in writing.

A bare reading of the above provisions shows that a member of a House

becomes a member of a Parliamentary Party in two cases: (i) if he has
been elected as a candidate or nominee of a political party which
constitutes the Parliamentary Party, he automatically becomes a member
of such Parliamentary Party, or (ii) if he, having been elected as an
independent candidate (i.e., otherwise than as a candidate or nominee of
a political party), joins such Parliamentary Party by means of a
declaration in writing.

78. The qualifying term “such Parliamentary Party”, as discussed

above, refers to the term “Parliamentary Party” next preceding, where the
noun “Parliamentary Party” has been used to denote a political party

56
Presidential Reference PLD 1957 SC 219; Fazlul Quader Chowdhry v. Abdul Haque PLD 1963 SC 486; State v. Zia-
ur-Rahman PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151; Nawaz Sharif v. President of
Pakistan PLD 1993 SC 473; Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Shahid Nabi v. Chief Election
Commissioner PLD 1997 SC 32; Wukala Mahaz v. Federation of Pakistan PLD 1998 SC 1263; Munir Hussain Bhatti
v. Federation of Pakistan PLD 2011 SC 308 + 407; Presidential Reference PLD 2013 SC 279; Judges’ Pension case
PLD 2013 SC 829 and D.B.A., Rawalpindi v. Federation of Pakistan PLD 2015 SC 401.
Civil Appeal No. 333 of 2024 etc. 45

whose candidate or nominee has been elected as a member of a House. It

is thus evident that in the first case, one action of becoming a member of
a House as a candidate or nominee of a political party produces two
results: (i) it makes a political party, whose candidate or nominee is
elected as a member of a House, a Parliamentary Party, and (ii) it makes
that member of a House, a member of such Parliamentary Party. A
member of a House elected as an independent candidate can become a
member of a Parliamentary Party by joining only such a political party
that constitutes a Parliamentary Party, not a political party that does not
constitute a Parliamentary Party. Notwithstanding joining a political
party of latter type, a member of a House shall not become a member of a
Parliamentary Party and shall remain an independent member of a
House for the purpose of all parliamentary proceedings.

Answer to question (iii) and its applicability to SIC and PTI

79. Thus, both the standalone reading of the provisions of Articles

51(6)(d) and (e), as well as their conjunctive and harmonious reading
with the provisions of Article 63A(2), lead to one and only irresistible
conclusion in terms of which this question is answered: Article 51(6)(d) of
the Constitution refers to political parties that have contested for and
won one or more general seats in the National Assembly from the
Province concerned, not to all enlisted political parties. Similarly, Article
51(6)(e) of the Constitution refers to political parties that have contested
for and won one or more general seats in the National Assembly from the
whole country, i.e., from any of the Provinces or the Federal Capital.

80. Since SIC has not contested for and won one or more general seats
in the National Assembly from the Provinces concerned or from anywhere
in the country, it is not such a political party to which any of the
independent returned candidates can join, for the purposes of
paragraphs (d) and (e) of Article 51(6) of the Constitution. Therefore, the
act of joining it by some returned candidates has not produced any
result, and the legal status of such returned candidates remains the
same as it was before such an act. As SIC has not won general seats, it is
not entitled to allocation of the disputed reserved seats. However, as
shall be mentioned later in detail, it has been determined by eleven
members of the Bench with varying figures that PTI has contested for
and won some general seats in the National Assembly from the Provinces
Civil Appeal No. 333 of 2024 etc. 46

concerned, and it is a political party entitled to allocation of the disputed

reserved seats under paragraphs (d) and (e) of Article 51(6) of the
Constitution.

(iv) How is the proportional representation of a political party to be

calculated for the allocation of reserved seats under Articles 51(6)(d) & (e)
and 106(3)(c) of the Constitution?

81. This was perhaps the most debated and, if we may say so, the
most challenging question involved in the case. Because of the illegal
mentioning of contesting candidates of a political party (PTI) in the list of
contesting candidates (Form-33) and its returned candidates as
independent returned candidates in the Section-98 Notification, as held
above, an unusual situation has arisen in a parliamentary democracy.
This situation seemingly pits one of the fundamental principles of
democracy—that the voice of the electorate should be truly reflected in
the composition of the legislative bodies—against the constitutional
objective of ensuring adequate representation of women and minorities
(non-Muslims) in such bodies. 57 However, with the answers provided to
questions (i), (ii) and (iii) above, it has become evident that this conflict
does not actually arise.

Position of political parties and independent members of Parliament

in a parliamentary democracy

82. Our Constitution, as held by this Court in Benazir Bhutto, 58

establishes a parliamentary democracy with a cabinet form of
government, which is primarily composed of the representatives of the
political party in majority. Therefore, the cabinet form of government is
essentially a government of the political party in majority, or of political
parties in the case of a coalition government. The political party or
parties that form the Government are the connecting link between the
Government (Executive) and the people, and between the Parliament
(Legislature) and the people. They are the effective instrumentalities by
which the will of the people is made vocal, and the enactment of laws and
the governance of the country in accordance therewith made possible.
Political parties form the bedrock of representation in a parliamentary

57
The Constitution, Article 34: Steps shall be taken to ensure full participation of women in all spheres of national life.
Article 36: The State shall safeguard the legitimate rights and interests of minorities, including their due representation
in the Federal and Provincial services.
58
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416.
Civil Appeal No. 333 of 2024 etc. 47

democracy and are fundamental, constitutive components of

representation, not mere accessories.59

83. In the usual course of a parliamentary democracy, competing

political parties, advocating for different manifestos, make the
parliamentary election meaningful by giving voters a choice. They convert
the results of a parliamentary election into a government The party or
parties in the majority form the Government, while the party or parties in
the minority serve as a fervent opposition. The opposition criticises the
policies and actions of the Government and thus calls the Government to
justify its policies and actions, thereby making it accountable to the
people. Therefore, political parties are institutions of great importance in
a parliamentary democracy and a vital feature of a representative
government.60

84. On the other hand, persons elected as members of a House of

Parliament (Legislature) in their personal capacities, as independent
candidates, in the words of Nasim Hassan Shah, J., ‘just toss around on
the political scene, rudderless and without a destination’.61 It is only
when they join a political party that they become a force capable of
exercising some influence through their activities for the welfare of the
constituencies and the public they represent in Parliament. They, as
members of a political party, and not as independent members of
Parliament, can best achieve the objective of effectively representing their
constituencies in Parliament—whether in legislative business and
forming executive policies or taking executive actions if they become part
of a party in government, or by holding the Government accountable for
its policies and actions if they are part of a party in opposition.

85. The above position of political parties and that of the independent
members of Parliament in a parliamentary democracy, such as ours,
guides our understanding of the procedure prescribed for the allocation
of the reserved seats.

86. As evident from the above-cited provisions of Article 51 of the

Constitution, clause (3) thereof allocates the specific number of seats
reserved for women to each Province and clause (6)(d) provides the

59
Nadia Urbinati, Representative Democracy: Principles and Genealogy (Chicago, Ill: University of Chicago Press,
2010).
60
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416.
61
Ibid.
Civil Appeal No. 333 of 2024 etc. 48

procedure for electing the members to those seats. A joint reading of both
clauses makes it clear that the members to all the reserved seats
allocated to a Province under clause (3) are to be elected under clause
(6)(d) of Article 51 as per the proportional representation system of
political parties from the lists of their candidates on the basis of total
number of general seats won by each political party, and no reserved
seat shall ordinarily remain vacant. Although the arguments before us
presented divergent contentions on the meaning of the expression
“political party” used in clause (6)(d), none disputed the proposition that
only political parties, not independent returned candidates, are entitled
to the allocation of the reserved seats. Independent returned candidates
can only be counted towards the proportional representation if they act
in accordance with the proviso and join a political party, in which case
their seats shall be counted as the seats of the political parties to which
they join for the purpose of determining the proportional representation
of political parties.

Proportional representation system of political parties is a composite

expression

87. A composite expression, as Bennion writes,62 must be construed as

a whole. While a certain meaning can be collected by taking each word in
turn and then combining their several meanings, but it does not follow
that this is the true meaning of the whole phrase. Each word in the
phrase may modify the meaning of the others, giving the whole its own
meaning. It, therefore, certainly is not a satisfactory method of arriving at
the meaning of a compound phrase to sever it into several parts, as
observed by Lord Halsbury, 63 and to construe it by the separate meaning
of each of such parts when severed. The intention of the Legislature is to
be discovered by taking the words as they occur—in the combination in
which they are placed—not by breaking up a compound expression and
weighing the words separately.64 If a composite expression is
comprehensive, it is unnecessary to determine the dividing line between
different terms used in the expression.

88. The provisions of paragraph (d) of Article 51(6), when read in light
of the above principles of interpreting a composite expression, remove the
confusion that dwelled in the minds of some of us regarding the meaning
62
Bennion on Statutory Interpretation (7th ed.) pp. 533-535.
63
Mersey Docks and Harbour Board v. Henderson Bros. (1888) 13 App Cas 595.
64
Savoy Overseers v. Art Union of London [1896] AC 296 per Lord MacNaghton.
Civil Appeal No. 333 of 2024 etc. 49

and scope of the “proportional representation system” envisaged by that

paragraph. The complete and composite expression used in the said
paragraph is “proportional representation system of political parties”. The
expression “lists of candidates”, annexed to it with an apostrophe, only
provides the mechanism for electing members to the reserved seats from
the lists of candidates of the political parties. So read, the provisions of
paragraph (d) of Article 51(6) become consistent with the above-stated
legal position that the members to all the reserved seats allocated to a
Province under clause (3) are to be elected under clause (6)(d) of Article
51 as per the proportional representation system of political parties from
the lists of their candidates on the basis of total number of general seats
won by each political party, ensuring that no reserved seat ordinarily
remains vacant.

Constitutional objective of providing seats reserved for women and

non-Muslims

89. The Principles of Policy provided in Chapter 2 of Part II of the

Constitution, often referred to as the conscience of the Constitution,65
require that steps be taken to ensure the full participation of women in
all spheres of national life and to safeguard the legitimate rights and
interests of minorities (non-Muslims), including their due representation
in the Federal and Provincial services.66 To actualise this constitutional
objective, a certain number of seats have been reserved in the National
Assembly and Provincial Assemblies for women and non-Muslims
(minorities). This constitutional affirmative action aims to promote
gender and minority-inclusive representation in the legislative bodies,
allowing for the voices of various segments of society to be heard and
considered in the law-making process. It ensures that the legislative
bodies reflect the diverse perspectives and interests of the population.

90. The principle of proportional representation of political parties,

according to which the members to the reserved seats are elected, aims
to reflect the electoral support for political parties in the composition of
the legislative bodies. By distributing the reserved seats among political
parties based on the general seats won by them, the legislative bodies
remain representative of the electorate’s choice. Adopting an
interpretation of paragraphs (d) and (e) of Article 51(6) that would result

65
Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416 and Ghulam Qasim v. Razia Begum PLD 2021 SC 812.
66
The Constitution, Articles 34 and 36.
Civil Appeal No. 333 of 2024 etc. 50

in holding certain reserved seats vacant would lead to a form of

disenfranchisement, where the electorate’s mandate is not fully realised
in terms of gender and minority representation, and thus frustrate the
constitutional objective of providing for such reserved seats.

91. Rule 95(2) of the Elections Rules, which provides that the seats
won by independent candidates, other than those who join a political
party, shall be excluded for the purpose of determining the share of each
political party, is thus found consistent with the constitutional
provisions, as it ensures the constitutional objective that no reserved
seat should ordinarily remain vacant.

Answer to question (iv), and its applicability to PTI and other political
parties

92. In view of the above, question (iv) is answered as follows: for the
purpose of allocating reserved seats under Articles 51(6)(d) & (e), the
proportional representation of political parties is to be calculated on the
basis of total number of general seats won by each political party,
including the seats of independent returned candidates who join it, but
excluding the seats of other independent returned candidates. The
Commission is to calculate the share of proportional representation of
PTI and other political parties in the reserved seats accordingly.

Denial of due share of proportional representation in the reserved

seats violates the fundamental rights of the political party and the
electorate guaranteed by Articles 17(2) and 19 of the Constitution.

93. Before parting with this part of the judgment, we want to underline
that the aforementioned principle of holistic and harmonious reading of
closely interlinked provisions of the Constitution requires that the
provisions of paragraphs (d) and (e) of Article 51 are to be read not only
in conjunction with Article 63A(2) but also with Article 17(2) of the
Constitution, which is also closely related thereto. As aforementioned,
this Court has held in the cases of Benazir Bhutto and Nawaz Sharif that
the right to form a political party guaranteed by Article 17(2) includes the
right to participate in and contest elections as a political party, and the
right to form the Government and complete the prescribed tenure if the
members of the political party constitute the requisite majority. We find
that the right to so many of the reserved seats that are proportionate to
the general seats won by a political party is also an integral part of the
right to form a political party, as this right also gives the “life and
Civil Appeal No. 333 of 2024 etc. 51

substance” to the said named fundamental right. Therefore, denial of the

right to reserved seats proportionate to the general seats won by it would
violate the fundamental rights of a political party guaranteed by Article
17(2) as well as the fundamental right to vote of the electorate that have
voted for such political party guaranteed by Article19 of the Constitution.

What relief would serve the ends of justice?

94. Having thus answered the questions of law, we shall now examine
what relief would serve the ends of justice in the peculiar facts and
circumstances of this case. When we speak of justice, we have the
intuitive sense of putting things aright and in their appropriate place, of
re-establishing a lost harmony and equilibrium, of remaining true to the
nature of things, of giving each his due.67 In this regard, we are also
guided by the following golden words of Kaikaus, J., written in Imtiaz
Ahmad:68
Any [justice] system, which by giving effect to the form and not to the
substance defeats substantive rights, is defective to that extent. The ideal
must always be a [justice] system that gives to every person what is his.

His lordship further observed:

I am unable to place the mistakes committed by the Administration
[public functionaries] on the same footing as mere accidents. The
difference is that in one case the harm caused to a party being the result
of a mistake committed by the Administration there is an obligation on
our part to undo it as far as that is possible. … In relation to Courts
there is a well-known saying that the act of Court will not prejudice
anybody. I do not see why the principle of this maxim does not apply to
the whole machinery of the Administration [public functionaries] of
which the Courts are only a part. No mistake committed by this
machinery should prejudice any person as far as that can be helped. If
the mistake of the election authorities is like a misfortune why are
elections set aside on the ground of irregularities committed by the
officers who conduct the elections? Why does not the law regard these
irregularities like events, which have happened and cannot be helped? It
cannot be the intention of the law that rights of persons should be
affected by the mistakes committed by public officers. ... We must put
the parties in the same position, as they would have been if no mistake
had been committed by the administration as long as we can do that.
(Emphasis added)
The above principle of law, though enunciated by his Lordship in a
dissenting judgment, has appealed “to the brooding spirit of the law, to
the intelligence of a future day” and has now become well established
and well entrenched in our jurisprudence.69

67
Seyyed Hossein Nasr, The Sacred Foundations of Justice in Islam.
68
Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382.
69
Manager, J&K State Property v. Khuda Yar PLD 1975 SC 678; Sherin v. Fazal Muhammad 1995 SCMR 584; Ladha
Khan v. Bhiranwan 2001 SCMR 533; Rauf Kadri v. SBP PLD 2002 SC 1111; Jawad Mir v. Haroon Mirza PLD 2007
SC 472 (5MB); Zulfiqar v. Shahdat Khan PLD 2007 SC 582; Razia Jafar v. Govt. of Balochistan 2007 SCMR
1256; Yasin v. Govt. of Punjab 2007 SCMR 1769; Saddaqat Khan v. Collector Land Acquisition PLD 2010 SC
Civil Appeal No. 333 of 2024 etc. 52

95. We find that the said principle is not only premised on two
maxims: (i) actus curiae neminem gravabit (an act of court [public
functionary] shall prejudice no one) and (ii) ex debito justitiae (as a debt
of justice), but are also rooted in the constitutional provisions of Article 4
of the Constitution. Under Article 4, it is an inalienable right of every
citizen, and of every other person for the time being within Pakistan, to
enjoy the protection of law and to be treated in accordance with law. This
constitutional inalienable right casts a corresponding constitutional
inalienable duty on all public functionaries of Pakistan to treat every
citizen and every other person for the time being within Pakistan in
accordance with law. From this constitutional right and the
corresponding constitutional obligation, the principle emerges, in our
opinion, that no person should be made to suffer or be prejudiced by an
unlawful act or omission of public functionaries. If any person suffers the
loss of any right or benefit because of an unlawful act or omission of a
public functionary, he is entitled, by reason of an obligation of justice, to
be restored to that right or benefit and put in the same position, insofar
as is possible, as he would have been if such unlawful act or omission
had not been made by the public functionary.

Unlawful acts and omissions of the Returning Officers and the

Commission that caused prejudice to PTI

96. In the present case, as discussed and determined above, the

unlawful acts and omissions of the Returning Officers and the
Commission, which have caused confusion and prejudice to PTI, its
candidates and the electorate who voted for PTI, are numerous and
include the following:

(i) the wrong omission to clarify in its order dated 22 December

2023 by the Commission that PTI is an enlisted and functioning
political party notwithstanding the rejection of its intra-party
elections and non-allocation an election symbol;

(ii) the wrong omission to clarify in its order dated 13 January

2024 by the Commission that PTI is an enlisted and functioning
political party notwithstanding that it has not been allocated an
election symbol, and that the candidates nominated by it are to be
treated and mentioned as PTI candidates, not as independent
candidates in the whole election process;

878 (6MB); Ijaz Iqbal v. Faisalabad Chamber of Commerce PLD 1983 Lah 1 and Ahmad Latif Qureshi v. Controller
of Examination PLD 1994 Lah 3.
Civil Appeal No. 333 of 2024 etc. 53

(ii) the wrong mentioning of the status of PTI candidates by the

Returning Officers as independent candidates in the list of
contesting candidates (Form-33);

(iii) the wrong decision on the application of a PTI candidate (Mr.

Raja) by the Commission in rejecting his claim to be mentioned as
a PTI candidate in the list of contesting candidates (Form-33);

(iv) the wrong mentioning of PTI returned candidates by the

Commission as independent returned candidates in the Section-98
Notification; and

(v) the wrong acceptance of the joining of some returned

candidates to SIC by the Commission, despite that it was not such
a political party to which an independent returned candidate could
join under the proviso to paragraphs (d) & (e) of Article 51(6) and
paragraph (c) of Article 106(3), or under clause (2) of Article 63A of
the Constitution.

In addition to the above, the making of an unconstitutional rule, i.e., the

Explanation to Rule 94 of the Elections Rules, by the Commission which
disentitles a political party to which an election symbol is not allotted
from the allocation of reserved seats despite its winning the general
seats, also contributed to causing confusion and prejudice to PTI, its
candidates and the electorate. Further, it is observed with respect, the
decision by this Court on 13 January 2024 in the matter of intra-party
elections of PTI on the very day that was fixed for submission of party
certificates (party tickets) and allotment of the election symbols as per
the Election Programme, and that too without clarifying that the said
decision did not affect the electoral status of PTI and its candidates, also
contributed in causing confusing and prejudice to PTI, its candidates and
the electorate.

The scope of powers of the Commission under Article 218(3) and of

the Supreme Court under Article 187(1) of the Constitution.

97. In view of the principle stated above, PTI, its candidates and the
electorate should not be made to suffer or be prejudiced by the unlawful
acts or omissions of public functionaries, namely the Returning Officers
and the Commission. Given that they have been deprived of their
constitutional right to proportional representation in the reserved seats
due to these unlawful acts and omissions, they are entitled, by virtue of
an obligation of justice (ex debito justitiae), to be restored to that right
and placed, insofar as possible, in the same position they would have
been if such unlawful acts and omissions had not occurred. However,
Civil Appeal No. 333 of 2024 etc. 54

there is no specific provision in the Constitution or the Elections Act to

address this situation and rectify the wrong.

98. Since the Legislature, while enacting a law on a subject, cannot

foresee and cover all unforeseen matters or issues that may arise in the
administration of such law in practice, it often enacts a provision that
confers upon a specified authority the general power to address such
unforeseen matters or issues. In the Elections Act, such a general power
is conferred upon the Commission by Sections 4 and 8(c).70 These
statutory general powers are conferred upon the Commission, in addition
to the similar constitutional general power vested in it under Article
218(3)71 of the Constitution. Both these statutory and constitutional
general powers are to be invoked and exercised by the Commission, as
held by this Court in Zulfiqar Bhatti,72 when there is no specific provision
of law on the matter or issue that needs to be addressed.

99. Similar is the scope of the constitutional general power of the

Supreme Court under Article 187(1)73 of the Constitution: it is to be
invoked and exercised by the Court to do complete justice in any case
when there is no specific provision of law that covers or addresses the
matter or issue involved.74 While exercising such general powers, the
Commission or the Court must, however, make an endeavour to adhere
to the spirit and substance of the provisions of law that, although not
covering the matter or issue, are closely related to it, so that the
legislative intent may be given effect to the maximum extent possible.

70
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) …
(3) Anything required to be done for carrying out the purposes of this Act, for which no provision or no sufficient
provision exists, shall be done by such authority and in such manner as the Commission may direct.
8. Power of Commission to ensure fair election. — Save as otherwise provided, the Commission may— ….. (c) issue
such instructions, exercise such powers and make such consequential orders as may in its opinion, be necessary for
ensuring that an election is conducted honestly, justly, fairly and in accordance with the provisions of this Act and the
Rules.
71
Article 218(3): 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.
72
Zulfiqar Bhatti v. ECP 2024 SCMR 997.
73
Article 187(1): Subject to clause (2) of Article 175, the Supreme Court shall have power to issue such directions,
orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, including an
order for the purpose of securing the attendance of any person or the discovery or production of any document.
74
Dossani Travels v. Travels Shop PLD 2014 SC 1: “The rationale [of power under Article 187(1)] appears to be that
in situations which cannot be resolved by existing provisions of law and warrant an intervention by the Court, it may
pass an order to ensure ‘complete justice’.”
Civil Appeal No. 333 of 2024 etc. 55

100. In order to invoke and exercise the general power vested in this
Court under Article 187(1) of the Constitution to address the matter
involved in the present case, we have also been guided by the
observations made by a six-member larger Bench of this Court in
Saddaqat Khan.75 After a detailed analysis of several previous cases, the
larger Bench reached and announced the following conclusion:

The ultimate goal sought to be achieved by the courts was thus to do

complete justice between the parties and to ensure that the rights were
delivered to those to whom they belonged and no hurdles were ever
considered strong enough to detract the Courts from reaching the said
end. Incorporation of provisions such as section 151, C.P.C.; section
561-A in the Cr.P.C.; revisional powers of wide amplitude exercisable
even suo-motu under section 115 of the C.P.C. and section 439 of the
Cr.P.C.; various provisions of the like contained in Order XLI, rule 4 and
Order XLI, rule 33 of the C.P.C.; the provisions of Order XXXIII, rule 5 of
the Supreme Court Rules of 1980; suo motu powers exercisable under
Article 184(3) of the Constitution and provisions of Article 187 of the
Constitution, are some of the examples which could be quoted as having
been made available to the Courts at all levels to surmount any
impediments which a Court might confront in the path of doing complete
justice.

The ultimate objective sought to be achieved by laws, the courts and the
justice system, as observed by Kaikaus, J., and as declared by the larger
Bench, is to dispense justice by ensuring that rights are delivered to
those to whom they belong; let justice be done, though the heavens fall
(fiat justitia, ruat caelum). Thus, the power under Article 187(1) of the
Constitution is focused on achieving and prioritizing fairness to ensure
complete justice in any case.

Point of divergence between eight Judges and three Judges

101. Up to this point, in invoking and exercising the general power of

this Court vested in Article 187(1) of the Constitution, we (the eight
Judges) and the three Judges (Hon’ble the Chief Justice, Justice Yahya
Afridi, and Justice Jamal Khan Mandokhail) were largely aligned.
Unfortunately, from this point onward, despite several mutual
discussions on various aspects of the matter, we could not reach a
consensus on what ultimate relief would be “necessary for doing
complete justice” in the present case.

102. We may underscore here what Chief Justice Dickson said about
the working of the Supreme Court of Canada: “The people of Canada are
not entitled to nine separate votes [of the nine Supreme Court Justices].
They are entitled to nine votes after each Justice has listened to and

75
Saddaqat Khan v. Collector Land Acquisition PLD 2010 SC 878.
Civil Appeal No. 333 of 2024 etc. 56

sincerely considered the views of the other eight.”76 Similarly, we believe,

the people of Pakistan are entitled to a decision from a Bench of this
Court after each Judge on the Bench has listened to and sincerely
considered the views of the others. Judges need not always see eye to eye
and may ultimately disagree, but the possibility of disagreement does not
absolve them from engaging in a free and frank discussion before
rendering their final opinion. Their professional responsibility to deliver a
well-considered decision requires them to lay out both their own position
and the defects they see in their colleagues’ positions with utter
frankness. Egos may be bruised, tempers tempted, yet all must pursue
the process with respect and civility.

103. Guided by the above principle, we, in fulfilling our professional

responsibility to deliver a well-considered decision on the matter involved
in the present case, laid out both our own position and, with respect, the
defects we saw in our colleagues’ positions. We did listen to and sincerely
consider their views as well. Unfortunately, neither could we convince
them of our view, nor could we bring ourselves to agree with theirs.

104. We all (us eight and our three colleagues) agreed that due to
unlawful acts and omissions of the Returning Officers and the
Commission, PTI, its candidates and the electorate have suffered the loss
of some of their constitutional and statutory rights, particularly their
right to proportional representation in the reserved seats. However, we
differed on how we could, by virtue of an obligation of justice (ex debito
justitiae), restore them to that right and place them, insofar as possible,
in the same position they would have been if such unlawful acts and
omissions had not occurred.

105. Our learned colleagues (Hon’ble the Chief Justice and Justice
Jamal Khan Mandokhail) have formed the opinion that “the candidates
who had submitted their nomination papers declaring that they belonged
to PTI and had not filed a document showing affiliation with another
political party before the last date of withdrawal of the nomination
papers, should have been treated77” as PTI returned candidates. Whereas
our learned colleague (Justice Yahya Afridi) is of the view that “[a]
candidate for a seat in the National Assembly or the Provincial Assembly,

76
Chief Justice McLachlin reported this in her speech, Judging in a Democratic State (2004).
77
Para 5 of their Lordships’ short order.
Civil Appeal No. 333 of 2024 etc. 57

who in his/her nomination paper has declared on oath to belong to PTI

and duly submitted a certificate of the same political party confirming
that he/she is the nominated candidate of PTI for the respective
constituency, shall remain so,…unless he/she submitted a written
declaration to the Election Commission of Pakistan or Returning Officer
to be treated as the candidate of another political party or as an
independent candidate78”. We respect their opinions but disagree.

106. ‘[T]he logic of words should yield to the logic of realities’.79 With
great respect, our learned colleagues have assumed and accepted that
PTI candidates filed declarations of their affiliation with another political
party (PTI-Nazriati), which were not even accepted by the Returning
Officers under the order of the Commission, by their own free will
uninfluenced by any constraint of the circumstances. Our conscience
and understanding of the realities of the case do not allow us to assume
and accept this position. We are completely at a loss to understand the
logic, other than the constraint of the circumstances, as to why a
candidate of a national-level political party (PTI), which had once formed
the Federal Government and two Provincial Governments, would
supersede his candidature of that party (PTI) with a party (PTI-Nazriati)
whose name had not even been heard by most of the electorate, or why
he would leave the candidature of that party (PTI) and become an
independent candidate, by his own free will. Had it been a case of one or
two candidates, we might have imagined some plausibility of free will in
their actions. However, we cannot assume by any stretch of the
imagination that hundreds of candidates for the National Assembly and
the Provincial Assemblies would act in such a manner by their own free
will, not under the constraints of the circumstances created by the
unlawful acts and omissions of the public functionaries—the Returning
Officers and the Commission. Therefore, we have found that
notwithstanding their subsequent filing of a declaration to be treated as
candidates of PTI-Nazriati or as independent candidates, 39 returned
candidates, out of the list of 80 submitted by the Commission, who had
either filed party certificates (party tickets) of PTI or declared their

78
para 2 (i) of his Lordship’s short order.
79
Di Santo v. Pennsylvania (1927) 273 US 34 per Justice Brandeis, approvingly cited in Manager, J&K State Property
v. Khuda Yar PLD 1975 SC 678.
Civil Appeal No. 333 of 2024 etc. 58

affiliation with PTI in their nomination forms or statutory

declarations/affidavits, are the returned candidates of PTI.

107. Similar is the position of those candidates whom our learned

colleagues have treated as independent returned candidates because
they had not mentioned themselves as belonging to PTI in their
nomination papers. In respect of these candidates, who are 41 according
to the record produced by the Commission, our learned colleagues have
presumed that they were independent candidates, and that none of them
has appeared before the Court to rebut that presumption.

108. We must say that we tried hard to understand how, in a

parliamentary democracy based on a political parties system, as
underlined by this Court in Benazir Bhutto, such a large number of
candidates to the seats in the National Assembly and the Provincial
Assemblies could inspire and win the confidence of the electorate as
independents. No satisfactory answer to this query was presented before
us on behalf of the Commission and other respondents. The assertion of
SIC and PTI that they were also PTI candidates and the electorate voted
for them for their being PTI candidates though appears satisfactory but is
not supported by the record presently before us. Therefore, it is the most
challenging matter involved in the case where the scales of the
requirements of law and of justice are to be justly, fairly and reasonably
balanced.

109. We do not find any force in the argument that those returned
candidates have not appeared before us to rebut the presumption
accepted by our learned colleagues, because we find that they are before
us speaking through SIC. What SIC says on facts is the version of those
returned candidates—SIC speaks for them before us. Both SIC and PTI
have narrated the same facts and circumstances that led to the
mentioning of their status as independent candidates in the nomination
papers. Both have claimed that they were also PTI candidates and that
the electorate voted for them for being PTI candidates; they, in their
individual capacities, did not have such voting support of the electorate.

110. As held above, while exercising their general powers under Article
218(3) and Article 187(1) of the Constitution respectively, the
Commission and this Court must endeavour to adhere to the spirit and
Civil Appeal No. 333 of 2024 etc. 59

substance of the provisions of law that, although not explicitly covering

the matter or issue, are closely related to it, so that the legislative intent
may be given effect to the maximum extent possible. According to Section
66 of the Elections Act, two elements make a person the candidate of a
political party: (i) the candidate’s own declaration that he belongs to that
party, and (ii) the party’s certificate (party ticket) nominating him as its
candidate. It is thus a matter between the candidate and the party to
which he claims affiliation. No consent or authorisation from any third
person or authority is required to establish their relationship and the
candidate’s status. This is the substance and spirit of Section 66 of the
Elections Act.

111. Therefore, we find it more just, fair and reasonable that this fact
should be verified and then acted upon by adhering to the substance and
spirit of Section 66 of the Elections Act so that the legislative intent may
be given effect to the maximum extent possible. Instead of deciding such
an important matter, which essentially relates to the right and value of
the votes of millions of voters, merely on assumptions, presumptions or
oral statements, this fact should be determined with certain and concrete
material: (i) the written statement (declaration) by the returned candidate
concerned, and (ii) its written confirmation (certificate) by PTI. Upon
submission of written statements by the returned candidates and written
confirmations by PTI through its de facto or de jure Chairman, the status
of the 41 returned candidates shall immediately and ipso facto stand
determined as a matter of law, with no subsequent act altering what,
upon submission of the statements and confirmations, will become a
past and closed transaction. Neither the returned candidates nor PTI can
later resile from this position. It is also emphasized that this verification
process is solely to determine whether the said 41 returned candidates
were indeed the returned candidates of PTI, and in no way does it
amount to accepting them as independent returned candidates and
granting them another opportunity to join a political party under the
provisos to paragraphs (d) and (e) of Article 51(6) of the Constitution.
Once their status is determined upon submission of the requisite
statements and confirmations, they shall be deemed returned candidates
of PTI from the date of the publication of their names as returned
candidates in the official Gazette. Consequently, they will be considered
Civil Appeal No. 333 of 2024 etc. 60

members of the parliamentary party of PTI in the National Assembly from

the date they took the oath of office as Members of the National Assembly
(MNAs), for all constitutional and legal purposes.

112. As above held, the general power of the Commission under Article
218(3) of the Constitution read with Sections 4 and 8 of the Elections Act
is similar to the general power of this Court under Article 187(1) of the
Constitution. Therefore, in the present case the Commission should
have, by the impugned order, in the words of Section 4(1), “issue[d] 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”; or, in the words of Section 8(c), “issue[d]
such instructions, exercise[d] such powers and ma[d]e such
consequential orders as may in its opinion, be necessary for ensuring
that an election is conducted honestly, justly, fairly”; or, in the words of
Article 218(3), “ma[d]e such arrangements as are necessary to ensure
that the election is conducted honestly, justly, fairly”. The Commission,
however, again made an unlawful omission by failing to exercise its
aforementioned general powers to undo the effects of its earlier unlawful
acts and omissions and to restore PTI to its constitutional right as a
Parliamentary Party and its entitlement to reserved seats proportionate
to the won general seats, thereby placing PTI, insofar as possible, in the
same position it would have been in if the said unlawful acts and
omissions had not occurred. The previous unlawful acts and omissions,
as well as the said unlawful omission, render the impugned order of the
Commission ultra vires the Constitution, without lawful authority and of
no legal effect.

The Commission has failed to perform its role as a “guarantor

institution” of democratic processes

113. We find it important to emphasize that the Commission, as a

constitutional “electoral management body”, is not merely an
administrative entity but a fundamental “guarantor institution” of
democratic processes, with a constitutional status akin to a “fourth
branch of government”.80 The Commission must therefore fully recognize

80
Micheal Pal, Electoral Management Bodies as a Fourth Branch of Government, Review of Constitutional Studies
(Volume 21, Issue 1, 2016). See also Bruce Ackerman, The New Separation of Powers (2000) 113:3 Harvard Law
Review 633 and Tarunabh Khatian, Guarantor Institutions, Asian Journal of Comparative law (Cambridge University
Press 2021).
Civil Appeal No. 333 of 2024 etc. 61

its constitutional position and the critical role it plays in a democracy

while performing its duty to conduct free and fair elections. As a central
pillar of democratic electoral processes, the Commission, in its role as a
guarantor institution and impartial steward, is tasked with ensuring the
transparency and fairness of elections to maintain public trust in the
electoral system. This is essential for the legitimacy of elected
representatives and the stability of the political system. The Commission
must uphold democratic principles and the integrity of electoral
processes by ensuring that elections truly reflect the will of the people,
thereby preserving the democratic fabric of the nation. Unfortunately, the
circumstances of the present case indicate that the Commission has
failed to fulfill this role in the General Elections of 2024.

114. Another matter that has surprised us during the proceedings of

these appeals is the way the Commission participated in and contested
the matter before us as a primary contesting party against SIC and PTI.
We are cognizant that the Commission’s prime function, under Article
218(3) of the Constitution, is 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’. This function of the Commission,
‘to organize and conduct the election’, as held by this Court in Aam Log
Itehad,81 is primarily executive, not judicial or quasi-judicial. However, as
found in the said case, the Commission also performs some quasi-
judicial functions. In the present case, several political parties made
counterclaims regarding their right to the disputed reserved seats, and
the Commission decided these counterclaims as an adjudicatory body.
The function performed by the Commission in the present case was,
therefore, quasi-judicial. And, as held by this Court in Wafaqi Mohtasib 82
and A. Rahim Foods,83 a body performing its quasi-judicial function in a
matter between two rival parties cannot be treated as an aggrieved
person if its decision is set aside or modified by a higher forum or by a
court of competent jurisdiction. Such a body, therefore, does not have
locus standi to challenge the decision of that higher forum or court. Nor,
we may add, can such a body contest an appeal filed against its quasi-

81
Aam Log Itehad v. Election Commission PLD 2022 SC 39.
82
Wafaqi Mohtasib v. SNGPL PLD 2020 SC 586.
83
A. Rahim Foods v. K&N Foods PLD 2023 SC 516.
Civil Appeal No. 333 of 2024 etc. 62

judicial decision by one of the rival parties as a primary contesting party.

In the present case, the Commission was a proper party to assist the
Court in effectually and completely adjudicating upon and settling all the
questions involved in the case. It should have acted in this manner, not
as a primary contesting party.

115. As for the impugned judgment of the Peshawar High Court, we

know, as held by this Court in Dossani Travels,84 that the ambit and
scope of the power of the High Courts under Article 199 of the
Constitution is not as wide as of the Supreme Court under Article 187 of
the Constitution to issue such directions, orders or decrees as may be
necessary for doing complete justice in any case or matter pending before
it. Nor do the High Courts possess such general constitutional power
which the Commission has under Article 218(3) to ensure that elections
are conducted honestly, justly and fairly. Therefore, without PTI’s
petition, the High Court could not have passed an order like the one we
have, or the one that the Commission could have passed, for doing
complete justice and ensuring that the election is conducted honestly,
justly and fairly. However, what the Peshawar High Court could have
done, but failed to do, in the present case is to remand the matter to the
Commission with a direction to do what the Commission was required to
do under Article 218(3) of the Constitution, read with Sections 4 and 8 of
the Elections Act.

116. So far as the proceedings in the National Assembly and the

Provincial Assemblies, wherein members elected on the disputed
reserved seats under the impugned order of the Commission
participated, are concerned, the same are protected under Articles 67
and 127 of the Constitution,85 cannot be disputed in these collateral
proceedings when no one has pointed out to us any proceedings of the
National Assembly or Provincial Assemblies that could not have been
successfully conducted if the members elected on the disputed reserved
seats had not participated therein. Further, as held by this Court in Raja

84
Dossani Travels v. Travels Shop PLD 2014 SC 1.
85
Article 67. (1) Subject to the Constitution, a House may make 2 rules for regulating its procedure and the conduct of
its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings
in the House shall not be invalid on the ground that some persons who were not entitled to do so sat, voted or otherwise
took part in the proceedings.
Article 127. Subject to the Constitution, the provisions of clauses (2) to (8) of Article 53, clauses (2) and (3) of
Article 54, Article 55, Articles 63 to 67, Article 69, Article 77, Article 87 and Article 88 shall apply to and in relation to
a Provincial Assembly or a committee or members thereof or the Provincial Government,…
Civil Appeal No. 333 of 2024 etc. 63

Amer,86 acts done in accordance with the legal position prevailing at the
time of their doing are generally protected under the doctrine of past and
closed transactions. Therefore, to protect such acts and proceedings of
the National Assembly and Provincial Assemblies concerned, which could
have been successfully conducted even if the members elected on the
disputed reserved seats had not participated, the notifications of the
Commission declaring such members as returned candidates on the
disputed reserved seats are quashed with effect from 6 May 2024, the
date on which this Court suspended the impugned order of the
Commission.

PTI is before the Court

117. Lastly, we want to say a few words to clarify that PTI, which has
been granted relief in the present case, is before us with an application
for its impleadment as a party to the case. In the normal course of
procedure for civil cases, the application for impleadment is first decided
and the applicant formally made a party to the case, before granting him
any relief in the case. This case, as explained in the opening part of this
judgment, is not an ordinary civil case but a lis of the highest order,
where democracy—a salient feature of the Constitution—and the
fundamental right of the people (the electorate) to choose their
representatives for the legislative and executive organs of the State is to
be preserved, protected and defended. The procedural formality of first
accepting PTI’s application and then granting it the relief does not carry
much weight where the Court’s concern is the protection of the right of
vote of the people (the electorate) guaranteed under Articles 17(2) and 19
of the Constitution, more than the right of any political party—whether it
be SIC or PTI or any other party. Indeed, more particularly for this kind
of cases, where the rights of people are involved, not only of the parties
before the Court, the words of Kaikaus, J., resound that ‘the proper place
of procedure in any system of administration of justice is to help and not
thwart the grant to the people of their rights.’87 Even otherwise, as held
by this Court in several cases, 88 while doing complete justice in the
exercise of its general power under Article 187(1) of the Constitution, this
Court is not handicapped by any technicality or rule of practice or

86
Raja Amer v. Federation of Pakistan 2024 SCP 91 per Syed Mansoor Ali Shah, J., concurred by majority (Many
previous cases are referred to in this case).
87
Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382.
88
Martin Dow Marker Ltd. V. Asadullah Khan 2020 SCMR 2147 (5MB) and State v. Alif Rehman 2021 SCMR 503
(Many previous cases are cited in these two cases).
Civil Appeal No. 333 of 2024 etc. 64

procedure, nor is the exercise of this power by the Court dependent on

an application by a party.

118. So far as the application (CMA 3554/2024) of Ms. Kanwal

Shauzab, who claims to be a PTI candidate for the seats reserved for
women in the National Assembly, is concerned, it also has little
significance in the perspective we have approached and dealt with the
present case. We may clarify that although we heard her counsel in the
interest of justice, as important questions of interpretation of
constitutional provisions were involved, she is not a necessary party to
the case. We are of the considered view that a contesting candidate or a
returned candidate to the seats reserved for women or non-Muslims is
not a necessary party to a dispute where the matter to be decided is
which political party and in what proportion is entitled to the reserved
seats. The persons nominated by a political party for reserved seats or
elected to such seats do not have a personal right to such seats. It is the
right of the electorate guaranteed under Articles 17(2) and 19 of the
Constitution, exercisable through political parties, to have proportional
representation in the reserved seats, not of the person nominated for or
elected to such seats.

Relief granted; short order reproduced

119. These are the detailed reasons for our short order dated 12 July
2024, which is reproduced here for completion of the record:
ORDER

Syed Mansoor Ali Shah, Munib Akhtar, Muhammad Ali Mazhar,

Ayesha A. Malik, Athar Minallah, Syed Hasan Azhar Rizvi, Shahid
Waheed and Irfan Saadat Khan, JJ.: For detailed reasons to be
recorded later and subject to what is set out therein by way of
amplification and/or explanation or otherwise, these appeals are decided
in the following terms:
1. The impugned judgment dated 25.03.2024 of the learned Full Bench
of the High Court is set aside to the extent it is or may be inconsistent
with this Order or the detailed reasons.
2. The order of the Election Commission of Pakistan (“Commission”)
dated 01.03.2024 (“Impugned Order”) is declared to be ultra vires the
Constitution, without lawful authority and of no legal effect.
3. The notifications (of various dates) whereby the persons respectively
mentioned therein (being the persons identified in the Commission’s
notification No.F.5(1)/2024-Cord. dated 13.05.2024) have been declared
to be returned candidates for reserved seats for women and minorities in
the National and Provincial Assemblies are declared to be ultra vires the
Constitution, without lawful authority and of no legal effect, and are
quashed from 06.05.2024 onwards, being the date an interim order was
made by the Court in CPLA Nos. 1328-9 of 2024, the leave petitions out
of which the instant appeals arise.
Civil Appeal No. 333 of 2024 etc. 65

4. It is declared that the lack or denial of an election symbol does not in

any manner affect the constitutional and legal rights of a political party
to participate in an election (whether general or bye) and to field
candidates and the Commission is under a constitutional duty to act,
and construe and apply all statutory provisions, accordingly.
5. It is declared that for the purposes, and within the meaning, of
paragraphs (d) and (e) of clause (6) of Article 51 (“Article 51 Provisions”)
and paragraph (c) of clause (3) of Article 106 (“Article 106 Provisions”) of
the Constitution, the Pakistan Tehreek e Insaf (“PTI”) was and is a
political party, which secured or won (the two terms being
interchangeable) general seats in the National and Provincial Assemblies
in the General Elections of 2024 as herein after provided.
6. During the course of the hearing of the instant appeals, on
27.06.2024, learned counsel for the Commission placed before the Court
a list (“the List”) of 80 returned candidates for the National Assembly
(now MNAs), setting out in tabular form particulars relating to their
election. Learned counsel made a categorical statement that the
Commission stood by the data so provided to the Court. In particular,
the List contained three columns marked as follows: (i) “Statement (on
nomination form) given in declaration and oath by the person nominated
(i.e., ‘I belong to’)”; (ii) “Certificate of party affiliation under Section 66 of
the Elections Act, 2017”; and (iii) “Statutory Declaration/affidavit
accompanying section 66 certificate”.
7. In the peculiar facts and circumstances of the General Election of
2024, it is declared that out of the aforesaid 80 returned candidates (now
MNAs) those (being 39 in all and whose particulars are set out in Annex
A to this Order) in respect of whom the Commission has shown “PTI” in
any one of the aforesaid columns in the List, were and are the returned
candidates whose seats were and have been secured by the PTI within
the meaning, and for purposes of, para 5 above in relation to the Article
51 Provisions.
8. In the peculiar facts and circumstances of the General Election of
2024, it is further ordered that any of the remaining 41 returned
candidates out of the aforesaid 80 (whose particulars are set out in
Annex B to this Order) may, within 15 working days of this Order file a
statement duly signed and notarized stating that he or she contested the
General Election as a candidate of the political party specified therein. If
any such statement(s) is/are filed, the Commission shall forthwith but in
any case within 7 days thereafter give notice to the political party
concerned to file, within 15 working days, a confirmation that the
candidate contested the General Election as its candidate. A political
party may in any case, at any time after the filing of a statement as
aforesaid, of its own motion file its confirmation. If such a statement is
filed, and is confirmed by the political party concerned, then the seat
secured by such candidate shall be forthwith deemed to be a seat
secured by that political party for the purposes of para 5 above in
relation to the Article 51 Provisions. The Commission shall also forthwith
issue, and post on its website, a list of the retuned candidates (now
MNAs) and seats to which this para applies within 7 days after the last
date on which a political party may file its confirmation and shall
simultaneously file a compliance report in the Court.
9. For the purposes of para 5 of this Order in relation to the Article 51
Provisions, the number of general seats secured by PTI shall be the total
of the seats declared in terms of para 7 and those, if any, to which para 8
applies. The PTI shall be entitled to reserved seats for women and
minorities in the National Assembly accordingly. PTI shall, within 15
working days of this Order file its lists of candidates for the said reserved
seats and the provisions of the Elections Act, 2017 (“Act”) (including in
particular s. 104) and the Elections Rules, 2017 (“Rules”) shall be applied
Civil Appeal No. 333 of 2024 etc. 66

to such lists in such manner as gives effect to this Order in full measure.
The Commission shall, out of the reserved seats for women and
minorities in the National Assembly to which para 3 of this Order
applies, notify as elected in terms of the Article 51 Provisions, that
number of candidates from the lists filed (or, as the case may be, to be
filed) by the PTI as is proportionate to the general seats secured by it in
terms of paras 7 and 8 of this Order.
10. The foregoing paras shall apply mutatis mutandis for purposes of the
Article 106 Provisions in relation to PTI (as set out in para 5 herein
above) for the reserved seats for women and minorities in the Khyber
Pakhtunkwa, Punjab and Sindh Provincial Assemblies to which para 3 of
this Order applies. In case the Commission or PTI need any clarification
or order so as to give effect to this para in full measure, it shall forthwith
apply to the Court by making an appropriate application, which shall be
put up before the Judges constituting the majority in chambers for such
orders and directions as may be deemed appropriate.
Annexure-A
(Names of Candidates Affiliated with the Pakistan Tehreek-e-Insaf
as per the list verified from the data provided by ECP89)
Sr. No. Number and Name of Name of the Candidate
the Constituency

1. NA-2 (Swat-I) Amjad Ali Khan

2. NA-3 (Swat-II) Saleem Rehman

3. NA-4 (Swat-III) Sohail Sultan

4. NA-6 (Lower Dir-I) Muhammad Bashir Khan

5. NA-7 (Lower Dir-II) Mehboob Shah

6. NA-9 (Malakand) Junaid Akbar

7. NA-17 (Abbottabad-II) Ali Khan Jadoon

8. NA-19 (Swabi-I) Asad Qaiser

9. NA-20 (Swabi-II) Shahram Khan

10. NA-21 (Mardan-I) Mujahid Ali

11. NA-24 (Charsadda-I) Anwar Taj

12. NA-25 (Charsadda-II) Fazal Muhammad Khan

13. NA-29 (Peshawar-II) Arbab Amir Ayub

14. NA-30 (Peshawar-III) Shandana Gulzar Khan

15. NA-31 (Peshawar-IV) Sher Ali Arbab

16. NA-32 (Peshawar-V) Asif Khan

17. NA-33 (Nowshera-I) Syed Shah Ahad Ali Shah

18. NA-38 (Karak) Shahid Ahmad

19. NA-39 (Bannu) Nasim Ali Shah

20. NA-41 (Lakki Marwat) Sher Afzal Khan

21. NA-83 (Sargodha-II) Usama Ahmed Mela

22. NA-84 (Sargodha-III) Shafqat Abbas

23. NA-95 (Faisalabad-I) Ali Afzal Sahi

89
CMA No.5924 of 2024 consists of Volume (I-VI).
Civil Appeal No. 333 of 2024 etc. 67

24. NA-96 (Faisalabad-II) Rai Haider Ali Khan

25. NA-100 (Faisalabad- Nisar Ahmed

VI)

26. NA-101 (Faisalabad- Rana Atif

VII)

27. NA-102 (Faisalabad- Changaze Ahmad Khan

VIII)

28. NA-103 (Faisalabad- Muhammad Ali Sarfraz

IX)

29. NA-115 Khurram Shahzad Virk

(Sheikhupura-III)

30. NA-122 (Lahore-VI) Sardar Muhammad Latif

Khan Khosa

31. NA-143 (Sahiwal-III) Rai Hassan Nawaz Khan

32. NA-149 (Multan-II) Malik Muhammad Aamir

Dogar

33. NA-150 (Multan-III) Makhdoom Zain Hussain

Qureshi

34. NA-154 (Lodhran-I) Rana Muhammad Faraz

Noon

35. NA-171 (Rahim Yar Mumtaz Mustafa

Khan-III)

36. NA-179 (Kot Addu-I) Muhammad Shabbir Ali

Qureshi

37. NA-181 (Layyah-I) Umber Majeed

38. NA-182 (Layyah-II) Awais Haider Jakhar

39. NA-185 (D.G. Khan-II) Zartaj Gul

Annexure-B
(Names of Independent Candidates [whom PTI claims as its candidates])
Sr. No. Number and Name of Name of the Candidate
the Constituency

1. NA-1 (Chitral Upper- Abdul Latif

cum- Chitral Lower)

2. NA-5 (Upper Dir) Sahibzada Sibghatullah

3. NA-13 (Battagram) Muhammad Nawaz Khan

4. NA-22 (Mardan-II) Muhammad Atif

5. NA-23 (Mardan-III) Ali Muhammad

6. NA-26 (Mohmand) Sajid Khan

7. NA-27 (Khyber) Muhammad Iqbal Khan

8. NA-34 (Nowshera-II) Zulfiqar Ali

9. NA-35 (Kohat) Shehryar Afridi

10. NA-36 (Hangu-cum- Yousaf Khan

Orakzai)
Civil Appeal No. 333 of 2024 etc. 68

11. NA-42 (South Zubair Khan

Waziristan Upper-
cum-South
Waziristan Lower)

12. NA-66 (Wazirabad) Mohammad Ahmed

Chattha

13. NA-67 (Hafizabad) Aniqa Mehdi

14. NA-68 (Mandi Haji Imtiaz Ahmed

Bahauddin-I) Choudhry

15. NA-78 (Gujranwala-II) Muhammad Mobeen Arif

16. NA-79 (Gujranwala- Ihsan Ullah Virk

III)

17. NA-181 (Gujranwala- Ch. Bilal Ejaz

V)

18. NA-86 (Sargodha-V) Muhammad Miqdad Ali

Khan

19. NA-89 (Mianwali-I) Muhammad Jamal Ahsan

Khan

20. NA-90 (Mianwali-II) Umair Khan Niazi

21. NA-91 (Bhakkar-I) M. Sana Ullah Khan

Mastikhel

22. NA-93 (Chiniot-I) Ghulam Muhammad

23. NA-97 (Faisalabad-III) Muhammad Saad Ullah

24. NA-99 (Faisalabad-V) Umar Farooq

25. NA-105 (Toba Tek Usama Hamza

Singh-I)

26. NA-107 (Toba Tek Mohammad Riaz Khan

Singh-III)

27. NA-108 (Jhang-I) Muhammad Mahbob

Sultan

28. NA-109 (Jhang-II) Waqas Akram

29. NA-110 (Jhang-III) Muhammad Ameer Sultan

30. NA-111 (Nankana Muhammad Arshad Sahi

Sahib-I)

31. NA-116 Khurram Munawar Manj

(Sheikhupura-IV)

32. NA-129 (Lahore-XIII) Mian Muhammad Azhar

33. NA-133 (Kasur-III) Azim Uddin Zahid

34. NA-137 (Okara-III) Syed Raza Ali Gillani

35. NA-156 (Vehari-I) Ayesha Nazir

36. NA-170 (Rahim Yar Mian Ghous Muhammad

Khan-II)

37. NA-172 (Rahim Yar Javaid Iqbal

Khan-IV)
Civil Appeal No. 333 of 2024 etc. 69

38. NA-175 Jamshaid Ahmad

(Muzaffargarh-I)

39. NA-177 Muhammad Moazzam Ali

(Muzaffargarh-III) Khan

40. NA-180 (Kot Addu-II) Fiaz Hussain

41. NA-183 (Taunsa) Khawaja Sheraz Mehmood

120. Before parting with the judgment, we feel constrained to observe,

with a heavy heart, that our two learned colleagues in the minority
(Justice Amin-ud-Din Khan and Justice Naeem Akhtar Afghan) have
made certain observations in their dissenting judgment dated 3 August
2024, which do not behove Judges of the Supreme Court of Pakistan, the
highest court of the land. After expressing their view that the order we
passed on 12 July 2024 is not in accordance with the Constitution and
that we ignored and disregarded its mandate, they observed that “[i]f the
said 39 plus 41 persons take any step on the basis of this judgment
which is not in accordance with the Constitution, they may lose their
seats as returned candidates on the basis of violation of the
Constitution”,90 and that “[a]ny order of the Court which is not in
consonance with the constitutional provisions is not binding upon any
other constitutional organ of the State.”91

121. We take no issue with their having and expressing the view that, in
their understanding, our order dated 12 July 2024 is not in accordance
with the Constitution, as Members of a Bench of this Court, or any court,
can legitimately differ on issues of fact and law. They may strongly
express divergent opinions and make comments on each other’s views,
highlighting reasons why they believe other Members have erred.
However, the manner in which they have expressed their disagreement
falls short of the courtesy and restraint required of Judges of the
Superior Courts. What is more disquieting is that, through the said
observations, they appear to have gone beyond the parameters of
propriety by warning the 39 plus 41 (80) returned candidates and urging
the Commission not to comply with the majority order, which is the
decision of a thirteen-member Full Court Bench of this Court. Such
observations undermine the integrity of the highest institution of justice
in the country and seem to constitute an attempt to obstruct the process
of the Court and the administration of justice.

90
Para 11 of their judgment.
91
Para 13 of their judgment.
Civil Appeal No. 333 of 2024 etc. 70

122. Considering the public importance of this judgment, the office is

directed to ensure translation of this judgment into Urdu in order to
enhance public access to its information, in accordance with Article 19A
read with Article 251 of the Constitution. The Urdu version of the
judgment shall be placed on the record of the case, uploaded on the
Court’s website and reported in the law journals alongside this official
English version of the judgment.

JUDGE

JUDGE

JUDGE

JUDGE

JUDGE

JUDGE

JUDGE

JUDGE
Delivered at Islamabad
On 23rd September, 2024
Approved for reporting
Sadaqat/Umer A. Ranjha, LC