1

BEFORE THE ISLAMABAD HIGH COURT

Writ Petition No.9 fg of 2022

Pakistan Tehreek e Insaf. Petitioner

Plot # I-A, Street # 32, Sector G-8/4,
Islamabad
Through its Secretary General, Mr. Assad Umar

Versus

I.The Election Commission of Pakistan, Islamabad Through its Chief Election

Commissioner (ECP) Secretariat, Constitution Avenue, G-5/2, Islamabad.

2. Akbar Sher Babar,

House No.1 0, Street No.77, Sector E-11l2 (F.E.C.H.S) Islamabad.

Respondents

WRIT PETITION UNDER ARTICLE 199 OF CONSTITUTION OF

ISLAMIC REPUBLIC OF PAKISTAN,1973.

It is humbly submitted as under:-

at the instantwrit petition is being filed on behalf of the Petitioner, which is a

legal pli:Y:son for all intents and purposes being an enlisted Political Party with the
EI~n Commission of Pakistan. The petition is being filed through its Secretary
't
~Deneral MF5',\sad Umar who is well conversant with facts and circumstances of
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. case
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and duly authorized to file the same before this Honourable Islamabad
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~ , High. C~Ut', Islamabad in pursuance of Article No.1.3.7 of the Constitution of
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" (..o\.pa~i:S'tan Tehreek e Insaf".
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1. That the Petitioner is aggrieved by the Order dated 15.03.2022 passed by

the Election Commission of Pakistan (annexed As "A") inter alia, dismissing the
two Applications dated 25.0 l.2022 and 31.01.2022 (annexed as "B&C")
respectively. It is submitted that, per the application dated 25.01.2022 dismissing

1 Copy of Article I ),7 is attached as Annex 'AI'.

 JUDGMENT SHEET.
IN THE ISLAMABAD HIGH COURT, ISLAMABAD.
JUDICIAL DEPARTMENT.

W.P. No. 958/2022

Pakis tan Tehreek-e-Insaf

versus
The Election Commission of Pakistan & another

Petitioner by: M/ s Anwar Mansoor Khan, Naveed

Anjum Mumtaz, Advocates.

Respondents by: M/ s . Syed Ahmad Hassan Shah, Badar

Iqbal Chaudhry and Syed Haider Hassan,
Advocates for respondent No.2.
Barrister Adil Kahlon, Legal Consultant,
ECP.
Khurram Shehzad, ADG (Law), Zaigham
Anees and Bushra Rasheed, Law Officers.

Date of Decision: 01.04.2022.

MOHSIN AKHTAR KAYANI, I: Through this Writ Petition, the

petitioner/PTI has assailed the order dated 15.03.2022, passed by

respondent No.1/ECP, whereby two applications filed by petitioner have

c~ disrnissed.
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,Q«;e,--. 2. Learned counsel for the petitioner contends that as per application

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~~aba:r:~r~;~ondent No.2 has failed to provide authentic evidence and

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, ;o'::~"'~s a result whereof he could not be allowed to participate in the

proceedings before the ECP; that second application moved on 31.01.2022

.

was in relation to restraining the said Akbar Sher Babar from taking copies

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 W.P. No.9S8/2022

of replies of the respondents or any other document filed by them. Learned

counsel for the petitioner has heavily relied upon the reported judgment of

Apex Court PLD 2018 SC 189 (Muhammad HanifAbbasi v. Imran Ahmad

Khan Niazi), whereby Apex Court has laid down the role of ECPi that

respondent No.2, who is complainant/informer to the extent of his

complaint, if permitted to participate in the proceedings to the extent of

data, information or documents collected, gathered by scrutiny committee

or the ECP as the case may be, petitioner may suffer irreparable loss as it is

against the mandate of Constitution of Pakistan as well as provisions' of

Political Parties Order, 2002. Learned counsel for the petitioner has heavily

relied upon PLO 2011 SC 997 (Watan Party v. Federation 0.( Pakistan),

PLD 2012 SC 292 (Watan Party v. Federation 0.( Pakistan), PLD 2014 SC

331 (Abrar Ahmad v. Irshad Ahmad) and contends that all the proceedings

before the ECP are inquisitorial in nature and any permission granted to

respondent No.2 would convert the same into adversarial in nature, which

is in violation of settled law.

3. Conversely, learned counsel for respondent No.2, legal consultant

and law officers for ECP have opposed the instant wri~ petition primarily

-b.l~ the ground that the claim submitted by the petitioner is not
maintainable as respondent No.2 is a member of PTI/petitioner whose

status has not yet been curtailed in any manner, he can participate in the

!I procegdings as' he is informer and provides majority of the record '~nd

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that instant petition has been filed against' the

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,,~1~l!~;~tt~10cutory/restraining order, which is not maintainable as ECP has yet
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to adjudicate upon the status of scrutiny committee report and foreign

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 , ,

W.P. No.9S8/2022

funding of PTl, which is within the purview of ECP in.terms of Article 219,

read with Article 17 of the Constitution of Pakistan and Political Parties

Order, 2002, therefore, powers of ECP could not be curtailed in any

manner.

4. Arguments heard, record perused.

5. Perusal of record reveals that petitioner/PII is mainly aggrieved

with the order dated 15.03.2022, whereby ECP has dismissed the

application filed by the petitioner in which it has mainly asserted that

respondent No.2 may not be allowed to participate in the, proceedings

before the Commission with further request to restrain him from taking

the reply of any document or record.

6. The grievance of the petitioner has checkered history where

respondent No.2 claims to be the member of PII who has fil~d~a complaint

before the ECP in terms of Article 6 of the PPO, 2002 in November, 2014

that appropriate action may be taken against the PII who is receiving

prohibited funds which a political party is not permitted to receive. The

matter was probed by the ECP and finally scrutiny committee has been

ordered to scru tinize the record who has submitted the report for further

e C p1"~cessing before the ECP while considering the financial analysis, cash
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I flows, special audit report, contribution summary, record of State Bank of
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Vc1kistan \ - ~ d receiving amounts all around the globe including USA, U.K,
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'. Europe > AE, Australia, Japan, Denmark, etc. However, after filing of the
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·'tc~~frpII has filed an application to the ECP that the-application filed by

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respondent No.2 in the year 2014 is without credible and authentic
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information and he could not prove anything against PIl, therefore, he
 W.P. No.958/2022

may not be permitted to receive any document and reply filed by PTI to be

further disclosed to the public and respondent No.2 may also be restrained

from participating in the proceedings to the extent of those record which

have been brought on record by the scrutiny committee or the ECP as the

case may be. However, the said applications have been dismissed

primarily on the ground that ECP has already decided the status of

complainant which order has been maintained by this court and presently

pending before the Apex Court, therefore, respondent No.2 is to be

considered as part of PTI till date, who is well within its powers to

participate in the proceedings as per his own choice and requirement.

7. Now the- question highlighted by 'the petitioner's side is as to

whether the said respondent No.2 be restrained from participating in the

proceedings before - the ECP to the extent of those record, replies,

documents, information submitted by PTI or the ECP has requisitioned the

same from different sources except the information submitted by

respondent No.2, the answer to the question is to be considered in the light

of the na ture of proceedings conducted by the ECP, which are in fact

inquiry proceedings in terms of PPO, 2002 read in conjunction with the

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,onstitution~l body assigned with duty to regulate, supervise, manage and

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regulate the affairs of registration and conduct of political parties

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 W.P. No.958/2022

including the question 'on accounts and the sources of its funds In

accordance with law.

8. Learned counsel for the petitioner though conceded all these aspects

but raised the objection qua the participation of respondent No.2 in the

proceedings primarily on the ground that he is not a member of PTI,

therefore, he is not permitted to join such proceedings in terms 'of mandate

given in PPO, 2002 read with its rules. The counsel has also highlighted

that proceedings before the ECP are inquisitorial in nature and it should

not be converted into adversarial proceedings, however, learned counsel

for the petitioner has been confronted qua the previous litigation, whereby

W.P No.2554/2017 titled PTI vs. ECP, etc. was filed with reference to

question on jurisdiction of ECP to entertain the complaint and locus-standi

of respondent No.2, it has been conceded by the petitioner that said

petition was dismissed vide order dated 26.01.2018by this court.

9. Similarly, the petitioner's side has not denied this fact that another

writ petition No.2014/2018 titled lmran Khan vs. ECP, etc. was also

dismissed vide order dated 18.07.2018, whereby order passed by the ECP

has been challenged where committee to -.scrutinize the record of PTI with
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regard to foreign funding has been constituted with furtherclaim that

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--------4-_<''':-:~-\ respondent No.2 could not be treated as complainant being expelled from

I arty but said petition was also dismissed by this court. Learned counsel
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i<1~ for the" ¥ietitioner has also not denied that ICA was filed by lmran Khan .
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, \ .again,sVt the dismissal of W.P No.2014/2018, which was dtsposed of vide

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" ~~il'G-:':~~~~er dated 04.12.2019 with the observations that respondent No.2 may
. ,J join the proceedings as the same are inquisitorial in nature. This aspect
 W.P, No.958/2022 .-

clearly spells out that petitioner PTI and its Chairman is primarily

aggrieved with the participation of respondent No.2 in the proceedings

while claiming his status being worker/member of political party.

10. Besides the above referred position, there is no denial that earlier

similar grounds have been raised by the petitioner in one or the other writ,

petition which have already been settled by this court, therefore, the

concept of constructive res judicata comes into play, even petitioner has not

denied that writ petition No.3892/2019, W.P No.3564/2017 and CPLA

No.234/2020 is pending before this Court as well as before Apex Court

though perusal of record reflects that only in W.P No.3892/2019 similar

question has been raised in indirect manner as challenged in this case, as

such learned counsel for the petitioner persuaded this court to proceed

with the matter in order to determine and distinguish the case placed by

the complainant/respondent No.2 before the ECP qua the authenticity of

its information and verifiable information or record and segregate the

information received by scrutiny committee or by the ECP in the process of

determination, as such this aspect purely falls within the disputed question

of facts which could not be settled by this court in terms of Article 199 of

the Constitution of Islamic Republic of Pakistan, 1973, therefore, any such

. . '--._ - --c '>Jequest is not justiciable, especially when the primary question is yet to be
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prohibited sources under Article 6(3) of the PPO, 2002 read with its rules,

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 W.P. No.958/2022

even it has not been denied that ECP can scrutinize the party funds of any
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political party under Article 6(3) of the PPO, 2002 read in line with the

Article 17 of the Constitution of Pakistan, therefore, ECP can call any

record, information or witness for determination of allegation or

otherwise, as to whether the political party has been funded with a

legitimate source, hence, role of ECP is of important nature and same

cannot be curtailed in any manner, which is a supervisory, regulatory and

administrative body under the Constitution of Pakistan, 1973 to deal with

the affairs of political parties, election and its results, therefore, no

restriction could be imposed upon ECP to adopt any process qf inquiry,

investigation, scrutiny to reach out the mandate of assigned duty in terms

of Article 17(3) read with enabling provisions of PPO, 2002 as if any of the

party funding has been received through prohibited sources, it will affect

the status of such political party including its chairman, therefore, it is

necessary to dig out the truth, even petitioner being political party is also

under obligation to maintain its dignity and integrity, which has far

reaching effect in Pakistani society and if any foreign funding has been

received contrary to law and mandate of the Constitution, the petitioner

has to face the music. This court has also been guided by the mandate

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ffiban Niazi), whereby Apex Court has provided certain guidelines, but as
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such EQ.P has not been restricted to adopt any method to reach out the
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t-~t>~o 'I). 11. In view of above, the claim submitted by the petitioner is not

maintainable as petitioner itself is not able to demonstrate any of his

 W.P. No.958/2022

legitimate right when itself is in agreement that respondent No.2 can

participate in the proceedings to the extent of information which he has

provided to the scru tiny committee or the ECP, therefore, this petition is

not based upon bona fide, rather filed with specific motive, just to stop

respondent No.2 Akbar Sher Babar to participate in the proceedings,

which has already been settled by this court in the previous proceedings,

therefore, instant writ petition is misconceived and' the same is hereby

dismissed with direction to the ECP to decide the pending complaint

within period of next thirty (30) days by all means, after hearing the parties

in accordance with law.

Zahid

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