PAKISTAN

BEFORE THE Hon'ble SUPREME COURT OF

(Original Jurisdiction)
Const, Petition No. /2023

1. Mushtaq Ahmad Ghani s/o Abdul

Ghani
Speaker, Provincial Assembly of KPK
Ghani Bagh, Murree Road,Abbottabad
2. Mehmood Khan
Former Chief Minister KPK
Tehsil Matta, District Swat

3. Muhammad Atif s/o Fazli Khaliq Member KPK Assembly

Former Provincial Minister and
Tehsil & District Mardan

Muhammad Ali
4. Shaukat Ali Yousafzai sfo
Former Provincial Minister and Member KPK Assembly
KPK
Tehsil Besham, District Shangla,
5. Taimur Saleem Jagra
Member KPK Assembly
Former Provincial Minister and
Peshawar

6. Kamran Khan Bangash

Member KPK Assembly
Former Provincial Minister and
Peshawar

General, Pakistan Tehreek-e-Insaaf,

7. Asad Umar, Secretary
Flat No.716,Silver Oaks, Sector F-10,
Islamabad

8. Pakistan Tehreek-e-Insaaf (PTI)

Through its Secretary General Asad Umer,
Plot #1-A, Street # 32, G-8/4, Islamabad --Petitioners

Versus

1. Election Commission of Pakistan

Through its Secretary,
Constitution Avenue, Islamabad

2. Federation of Pakistan
Through Secretary:
(a) Ministry of Interior
(b) Ministry of Law, Justice and Parliamentary Affairs,
(c) Ministry of Finance

3. Governor of Khyber Pakhtunkhwa,

Through Principal Secretary,
Governor House Peshawar

4. Province of Khyber Pakhtunkhwa,

Through Chief Secretary,
Civil Secretariat Peshawar
-Respondents
 Constitution Petition under Art.184(3) of the Constitution, inter alia, against the
Notification dt.27-03-2023 issued by the Election Commission of Pakistan and
Letter dt.24-03-2023 written by Governor KPK whereby date for General Election
to the Provincial Assembly of KPK has been set for 08-10-2023

It is respectfully submitted as follows:

Summary of Facts
order dated 01.03.2023 directed the
1 That the Hon'ble Supreme Court of Pakistan vide
announce the dates of
President of Pakistan and the Governor of KPK to respectively
respectively with the express
elections to the Provincial Assemblies of Punjab and KPK
90 days of the dissolution of the
condition that the elections have to be held within
14.01.2023 while the KPK Assembly
assemblies (the Punjab Assembly stood dissolved on
Supreme Court allowed the barest minimum
stood dissolved on 18.01.2023). The
had
keeping in view that considerable time
deviation from the 90 days benchmark
Assemblies.
passed since the dissolution of the

anticipating that
the Hon'ble Supreme Court
2. That in the judgement dated 01.03.2023
deadline
the election beyond the constitutional
there could be excuses made for delaying
federal and caretaker
all the executive authorities,
of 90 days, also directed that funds,
facilities (including the provision for
governnments were to provide whatever
elections on the
required by ECP to hold and conduct
security and personnel) as may be
date fixed.

the President of
judgement of the Hon'ble Supreme Court,
3 That as a consequence of the elections
announced 30th April, 2023 as the date of
Pakistan, in consultation with the ECP
announced the election
Province of Punjab and the ECP
for Punjab Assembly in the
hand, the Governor of KPK, to the contrary, did not
schedule accordingly. On the other
has been
Supreme Court, and a contempt petition
follow the judgement of the Hon'ble
filed against him.

violation of the
in defiance and subversion of the Constitution and
4. That however
Supreme Court, ECP unilaterally, vide order dated 22.03.2023, changed
judgement of the
of elections in the Punjab Assembly and decided that the elections
the date of holding
will be held on 08.10.2023.

was assailed, inter alia, by PTI before this

5. That the Order dt.22-03-2023 passed by ECP
(Const.P.No.05/2023) on 25-03-2023. In that
Hon'ble Court in Constitution Petition
Assembly was also sought as the
petition, relief 'to appoint date for General Election to KPK
communicated the ECP 08-10-2023 as the
Governor vide his lnpugned Letter dt.24-03-2023 had
 wute of Election. This
Hon'ble Court was pleased to allow
No.05/2023) on
04-04-2023.
oll Date for General Thereby the Order of ECP
Election for Punjab Provincial
the aforesaid
dt.22-03-2023
petition (Const.P.
was set aside and
However, with respect to KPK, it was Assembly was fixed for 14-05-2023.
Order dt.04-04-2023 held as observed by thisHon'ble Court in Para.11 of the
under:
"Para.l1, Insofar as the general election to the KPK
relation to which the present petitioners have also ASSembly is concerned, in
who entered appearance on behalf of the sought relief, learned counsel
from such Governor of KPK Province withdrew
appearance on account of a certain stand taken by a
learned counsel was also representing. The Governor, KPKpolitical party which
ceased to have representation before the Court. In such Province therefore
relating to the KPK Province is not adjudicated upon, with circumstances, the matter
permission
the petitioners to file such petition and/or seek such relief before such granted to
forum as is
deemed appropriate."

6 Thus, the matter (Appoint of date for General Election to KPK Assembly) was left open to be
adjudicated upon, inter alia, by this Hon'ble Court at a later stage. Hence, the titled
petition before this Hon'ble Court. Even otherwise, the matter involved in this petition
is also of public importance with reference to enforcement of fundamental rights of the
millions of people of Pakistan, particularly the people of KPK, conferred inter alia upon
them by Articles 9, 14 and 17 of the Constitution. There can be no denial that the right to
democratic, constitutional governance and to have a representative, duly elected
legislature and government is an integral part of the right to life and dignity. Moreover,
the right to participate in elections is one aspect of the concept of political justice which
is set out in the preamble of the Constitution and included in Article 17. Hence, the
and
instant petition under Article 184(3) is competent. In fact, it is, in the facts
placed on the
circumstances, the most efficacious and suitable remedy. Reliance is
has decided that the
judgements of the Hon'ble Supreme Court of Pakistan which it
upon a matter which is of
Supreme Court has the jurisdiction to directly adjudicate
fundamental rights.
publicimportance and involves enforcement of

case, the interpretation of numerous Articles of the Constitution and the

7 That in this is 01.03.2023
implementation of this Hon'ble Court Order dt.
Scope, interpretation and route
public importance which goes to the very
involved and the matter is one of great
of this
Parliamentary Democracy and Provincial Autonomy, hence, the jurisdiction
of this
being a final court, to do complete justice is invoked. The exercise of
Hon'ble Court,
litigation especially keeping in view
jurisdiction is also essential to avoid unnecessary constitutional
where the elections are being delayed and the
the time constraint
machinery is at a stand-still.

above, it is submitted that the following amongst

That having given the brief background
8.
other questions of laws of considerable public importance, relating to enforcement of
fundamental rights, arise in the instance case:

QUESTIONS OF LAW
Provincial Assembly KPK in view of
(1) Whether it is not now settled that 'election to
90 days and if not possible
its dissolution on 18-01-2023 to take place not later than
schedule/timeframe?
within the barest minimum to that

not bound by the Order

dt.01-03-2023 that General
(2) Whether Governor KPK was
90days or if not possible within the
Election to KPK Assembly got to be held within
Schedule/timeframe?
barest minimum to that

dt.01-03-2023
has not violated the Order of this Court
(3) Whether the Governor KPK
08-10-2023 as
and has acted against the clear
mandate of Constitution in appointing
whether the
Elections to KPK Assembly and
the Election Date for General
aside by this Hon'ble Court?
Impugned Letter is not liable to be set

Impugned Letter dt.24-03-2023 appointing Election

(4) Whether on the face of it, the reasons and
substance and without any valid
Date as 08-10-2023, is not without
justification?
and has not taken
failed to apply its independent mind
(5) Whether the ECP has not
Notification dt.27-03-2023 notifying the
dictations while issuing the Impugned
KPK Assembly as 08-10-2023?
Election Date for General Election to
passed
Order dt.01-03-2023 and Order dt.04-04-2023
(6) Whether,inter alia, in view of General
Petition Nos.2 and 5 respectively, the
by this Hon'ble Court in Constitution barest
held 'not later than 90 days or within
Election to KPK Assembly is not to be
minimum to that Schedule/Timeframe?
dt.24-03-2023 and
anticipated by the Impugned Letter
(7) Whether the deviation as
incompatible with the directions of this
Impugned Notification dt.27-03-2023 is not
in Order dt.01-03-2023?
Hon'ble Court as contained, inter alia,

Pakistan or Governor KPK for that purpose

(8) Whether the Election Commission of
Constitution of the Islamic Republicof
has the power to unilaterally amend the
period of 90 days as
Pakistan, 1973, by extending the date of elections beyond the
mandated?

overrule and review the

(9) Whether ECP or Governor KPK has the jurisdiction to
Court
decision of this Court dt.01.03.2023 and without approaching this Hon'ble
 Ouy or appoint date of General Election beyond the period as decided by this
Court?

(10) Whether the federal and provincial caretaker governments are bound to provide the
finances, personnel, and security to the Election Commission of Pakistan to hold the
elections as mandated by the Constitution and held in the judgement of the
Supreme Court dated 01.03.2023 and dt.04-04-2023?

Court has
(11) And whether in view of the Order dt.04-04-2023 whereby this Hon'ble
and
already set aside the Order of ECP dt.22-03-2023, the Impugned Letter
Impugned Notification are not liable to be set aside?

other Article of the Constitution

(12) Whether Article 254 of the Constitution or any
beyond the 90 days mandate
could at all be utilized to appoint a date for Election
read with Order dt.01-03-2023?

without theholding of the elections to an

(13) Whether the Constitution can function
Assembly?
Government can be extended beyond 90 days?
(14) Whether the tenure of the caretaker

of Election Act, 2017 at all authorize the

(15) Whether Art.218(3) or any provisions
program once this Hon'ble
Election Commission of Pakistan to 'modify election
Court has issued directions regarding that Election?

case all appropriate directions are not to be

(16) Whether in circumstance of the instant
fair and transparent election in KPK
issued by this Hon'ble Court so as to hold free,
dt.04-04
Court in its Order dt.01-03-2024 and
as already observed by this Hon'ble
2024?

Dissolution of Punjab Assembly

Punjab, Chaudhry Pervaiz Elahi, advised
9. That on 12.01.2023, the then Chief Minister of
Assembly in exercise of his Constitutional
Governor of Punjab to dissolve the Punjab
14.01.2023, pursuant to the advice of
powers under Article 112 of the Constitution. On
terms of Article 112(1) of the Constitution,
the then Chief Minister in accordance with
the Punjab Assembly stood dissolved.

Dissolution of KPK Assembly

Pakhtunkhwa, Mr. Mahmood
10. That on 17.01.2023, the then Chief Minister of Khyber
exercise of his
Khan, advised Governor KPK to dissolve the KPK Assembly in
KPK
Constitutional powers under Articde 112(1) of the Constitution.On 18.01.2023, the
Assembly was dissolved by the Governor pursuant to the said advice.
 1 That, subsequently, the Speaker of the Provincial Assembly of the Punjab, through a
letter 20.01.2023 conveyed his concerns to Governor of Punjab about the appointment of
a date for the general election of the Punjab Assembly.
12. That Sardar Usman Khan Buzdar, Parliamentary leader, Punjab Pakistan Tehreek-e
Punjab to appoint a date
Insaaf also conveyed his concerns and requested Governor of
for holding the elections to the Punjab Assembly.

24.01.2023, also communicated with Governor of

13. That the ECP, through letter dated
election to the Punjab Assembly between
Punjab and requested him to appoint a date for
09.04.2023 and 13.04.2023.

Governor KPK
24.01.2023, also communicated with
14. That the ECP, through letter dated
Assembly between
requested him to appoint a date for election to the KPK
and
15.04.2023 and 17.04.2023.

elections in the
matter of appointing a date for holding
15. But Governor KPK evaded the that it is the
Assembly in a televised statement on 27.01.2023 and stated
KPK
elections.
responsibility of the ECP to conduct

Assembly as
announcing the election date of the KPK
16. That Governor KPK, instead of and order
Constitution, preferred the excuse of law
required under Article 105(3) of the before fixing
through letter dated 31.01.2022 that
situation in KPK and advised the ECP confidence the
elections, the ECP should consult and take into
a date for the
political parties.
institutions/Law Enforcing Agencies as well as
Assemblies as
regarding no date for General Election to the
17. That the aforesaid situation
summarized hereinbelow.
aforesaid, led to litigation as

Litigationinthe Lahore High Court

Tehreek-e-Insaaf througlh
29.01.2023, Writ Petition No. 5851 of 2023 titled "Pakistan
18. That on filed before the
Secretary Asad Umar v. Governor of Punjab and another was
General
its Punjab for not
Lahore High Court, Lahore, against inaction of Governor
Honorable allowed the Writ
Honorable Lahore High Court
appointing a date of election. The directed
other connected petitions) through Judgment dated 10.02.2023 and
Petition and Assembly after
ECP to immediately announce the date of election of the Punjab
the held not
elections are
Punjab,so as to ensure that the
consultation with the Governor of
of the Constitution. The operative part of the
later tharn ninety days as per the mandate
Judgment reads as follows:
 "ln vievof tne constitutional provisions mentioned above and the judgments of tHhe
petitions" is alloed
Siprene Court of Pakisian, the prayer made in the "consolidated
the "date of electio" of tlhe
and tle "ECP" is directed to inmediately announce
specifying rensons, after
Provincial Assembly of Puniab with the Notification
being the constitutional Head of the
consultation vitlh the Governor of Punjab,
per the
held not later than ninety days as
Province, to ensure that tle elections are
mandate of the "Constitution". [Emphasis Supplied]

Hon'ble Lahore High Court, Lahore were not complied

19. That the directions given by the considerable time and in
election was announced despite lapse of
with and no date of between the
reported that a consultative meeting was held
spite of the fact that media the Governor of
officers of ECP. It may be pointed out that
Governor of Punjab and dated
Court Appeal No.11096/2023 against the judgement
Punjab also filed an Intra
10.02.2023.

Court
Litigation in the Peshawar High
Advocate v. Federation of Pakistanand
Writ Petition titled "Masal Azam
20. That on 07.02.2023, Peshawar, against the inaction
Hon'ble Peshawar High Court,
others" was filed before the
appointing a date of election.
of Governor KPK in

Litigation in Supreme Court Petition

Bar Association also filed Constitution
High Court
21. That Islamabad against the Election
11-02-2023 before this Hon'ble Court
(Const.P.01/2023) on
ECP or the President.
Pakistan for appoint of Election Date by the
Commission of
No.3988/2022
Court while hearing Civil Petition
of this Hon'ble
22 That the Division Bench Chief Justice for taking Suo
Muto
16-02-2023 referred the matter to
has vide order dated Accordingly, SMC.01/2023 was
registered
election matters.
action in respect of the 22-02-2023.
subject matter on
regarding the aforesaid

elections to the
Pakistan announced the date of the
20,02.2023 the President of
23. That on order of the President also
as 09-04-2023 and this
Punjab Assembly and KPK Asembly
the SMCNo.1 of 2023 as under.
became subject matter of

days period was

date of election was not being announced and the 90
24. That since the titled 'Muhammad
circumstances, a Constitutional Petition No.2/2023
expiring, in these
Election Conmission of Pakistanand others, was also filed
Sibtain Khan and others Vs.
to the relevant
the Hon'ble Supreme Court of Pakistan for direction
on 18-02-2023 in
 authority to announce the date o: elections.

Const.P.No.1/2023 and Const.P.No.02/2023 were eventually

0. That SMC No.1/2023 and
majority judgemnent, the Hon'ble Court
decided by a judgement dated 01.03.2023. In the
held as follows: -
before
directed as follows in relation to the matters
Para.14, Itis further declared and
circumstances the general election to the Punjab Assembly
the Court: () In ordinary ofhis order
09.04.2023, the date announced by the President in terms
ought to be lheld on
the emnergence
20.02.2023. However, we are informed that on account of the delay in
of meet the 90
holding of the general election, it may not be possible to
of the date for the (possibly
stipulated by the Constitution. It is also the case that
day deadline not make itself
misunderstanding of the law) the Election Commission did
account ofa 2017 Act. The Election
required under s. 57(1) of the
available for consultation as immediately propose,
its utnost efforts to
Commission is therefore directed to use that is compliant
2017 Act, a date to the President
keeping in mind ss. 57 and 58 of the available, then the Election
the aforesaid deadline. If such a course is not
with poll that
in like manner propose a date for the holding of the
Comnission shall
After consultation with
from the aforesaid deadline.
deviates to the barest minimum holding of the
Commission the President shall announce a date for the
the Election
Punjab Assembly. (b) The Governor of the KPK Province must
general election to the
Commission forthwith appoint a date for the
after consultation with the Election shall,
KPKAssembly and the preceding clause (a)
holding of the general election to the
thereto.
mutatis mutandis, apply in relation

the Federation, in terms of clause (3) of Article

Para.15, It is the constitutional duty of with
Province is carried on in accordance
Government of every
148, "to ensure that the
this duty inchudes
provisions of the Constitution". There can be no doubt that
the and enabled
Assembly of everyProvince is held,
ensuring that ageneral election tothe Constitution, This duty
within the period set out in the
to be held,in a timely manner 220 on "all
addition to, and applies independently of, the duty cast under Article
is in Commissioner
in theProvinces to assist the
executiveauthorities in the Federation and
of his or their functions". It follows that
and the Election Commission in the discharge
the Federation, and in particular the
Federal Government, is, inter alia, obligated, on
provide the Election Commission with all
animmediate and ugent basis, to forthwith
require for the holding of the general
such facilities,personnel and security as it may
Governments, acting under
elections. In like manner, it is the duty of the Provincial
assistance as may be
the Caretaker Cabinets, to proactively provide all aid and
as set out in
required by the Election Commission. The duty cast upon the authorities
s. 50 of the 2017 Act must also be discharged forthwith and proactively."
 Disposal of ICA and Writ Petition before Lahore &Peshawar High Courts
O lhat subsequently the ICA No.11069/2023 as well as the Writ Petition (WP.407-P/2023)
were
pending before Lahore High Court and Peshawar High Court respectively
Court dt. 01.03.2023 on 06-03-2023
disposed of in view of the judgement of the Supreme
and 02-03-2023 respectively.
also vide order
further consequence of the above, the President of Pakistan
27. That as a
2023 in the Punjab
of the election to be 30th April,
dated 03.03.2023 fixed the date of election. ECP,
the Governor KPK failed to announce the date
Assembly whereas Election to the
Schedule on 08-03-2023 for holding General
however issued Election
30-04-2023.
Punjab Assembly on
passed an
was pending against Governor KPK, ECP
petition
28. That while the contempt of finances, provision of security
personnel
held that due to lack
Order on 22-03-2023 and Schedule dt.08-03-2023 was
Punjab, Election
order situation in that Election
as well as law and Poll Date with observation
08-10-2023 was fixed as 30-04-2023 to
withdrawn and changed PollDate from
in due course. ECP thus
Schedule willbe issued period of 90 days).
beyond the
08-10-2023 vide Order dt.22-03-2023 (far
and
letter to the ECP on 24-03-2023
KPK sent a date for the
the aforesaid, Governor postponed the election
29. With has
that "since ECP suggested that
Communicated, inter alia, 08-10-2023, therefore it is also
KPK
election of Punjab province to date for General Elections of
general election
proposed/appointed as
state" (hereinafter referred to
08-10-2023 be of the
same in the interest face ofunlawful
public interest as well as Thatwas on the
in the best dt.24-03-2023").
GovernorKPK
"Impugned Letterof dt.01-03-2023.
as Hon'ble Court Order
and violative
of this application of
and without
dictation
while taking accepted the letter
foregoing, ECP dt.01-03-2023,
Despite the this Court Notification on 27-03
30. alia, to the Order of issued
mind, inter reconsideration and
independent
requestfor General Election to KPK
reservation or for
withoutany Election Date "Impugned
08-10-2023 as the to as
notifying (hereinafter referred
2023 thereby the Election
Act, 2017
$57(2) of
Assembly under dt.27-03-2023").
Notificationof ECP
Punjab from
Election datefor
changed the
dt.22-03-2023had (Const.P.No.05/2023)was filed
Order
since ECP vide Constitution Petition Hon'ble
31.
That
08-10-2023, therefore also soughtfrom this
30-04-2023 to prayer regardingKPK was Hon'ble Court set aside
Hon'ble Courtand 04-04-2023 and this
Court
before this finally allowed on
observed by this Hon'ble
petition was regardingKPKit
was
Court. The and
dt.22-03-2023
Order of FCP
the
 n Para.11 of the Order dt.04-04-2023 as under:
"Para.11, Insofar as the general election to the KPK Assembly is concerned, in
relation to which the present petitioners have also sought relief, learned
counsel who entered appearance on behalf of the Governor of KPK Province
withdrew from such appearance on account of a certain stand taken by a
political party which learned counsel was also representing., The Governor,
KPK Province therefore ceased to have representation before the Court. In
such circumstances,the matter relating to the KPK Province is not adjudicated
upon, with permission granted to the petitioners to file such petition and/or
seek such relief before such forum as is deemed appropriate."

32. Thus, the matter (Appoint of date for General Election to KPK Assenbly) was left open to be
adjudicated upon, inter alia, by this Hon'ble Court at a later stage. Hence, the titled
petition before this Hon'ble Court against the Governor's Impugned Letter dt.24-03-2023
appointing 08-10-2023 as Election Date and Impugned Notification of ECP dt.27-03-2023
notifying 08-10-2023 as Election Date for General Election to KPK Assembly. The
Notifications are not sustainable and liable to be set aside by this Honble Court and new
date fixed for Election, inter alia, on the following grounds.

GROUNDS

(A) Atthe outset it is submitted that Governor KPK has not appointed the date as mandated
by the onstitution and as inter alia directed by this Hon'ble Court vide its Order dt.01
03-2023 passed in Const.P.02/2023. The Impugned Letter dt.24-03-2023 is therefore
without lawful authority andof no legal effect.

to hold
(B) Likewise, ECP has no jurisdiction or power to amend the Constitution and decide
the elections to the Provincial Assembly of KPK or to any other assembly beyond the
period of 90 days (from the date of dissolution of Assembly) as mandated by the
Constitution. ECP's impugned order dated 27.03.2023 notifying Election Date for KPK
Assembly as 08.10.2023 is unlawful, illegal and without lawful authority.

() That ECP is a body which is bound to obey and implement the judgements of the Hon'ble
Supreme Court of Pakistan and has no power or jurisdiction to overrule or review the
same. The Hon'ble Supreme Court of Pakistan has in its judgment dated 01.03.2023 very
clearly specified that the election to the Provincial Assembly of KPK has to be held within
90 days (with only the minimum deviation) and the date of election to KPK Assembly is
to be given by Governor KPK. It was further directed that allexecutive authorities are to
provide the funds, security, personnel etc to ECP for the conducting of elections.
Notifying any other date for General Election as aforesaid is in defiance of this Hon'ble
Court's Order dt.01-03-2023 as well as Constitution and hence not sustainable in law.
 hat under the Constituti¡n, it is very clear that the election will have to be held within
90days after the dissolution of an Assembly and this 90-day period cannot be extended
for any reason whatsoever. There is no ambiguity in this regard. This is also what the
judgement of the Supreme Court dated 01.03.2023 expressly decided. Hence, without
going into the merits of the reasons given by ECP in the Impugned Notification dt.27-03
2023 or in Innpugned Letter dt.24-03-2023, the samne are unconstitutional, illegal,
unlawful and without jurisdiction.
(E) That whole edifice of the Constitution is based on the foundation of representative
elect their
government. Unless there are elections through which the people
Constitution will
representatives, the whole scheme of governance established by the
without elections being held
collapse. Constitutional governance is simply not possible
this mandate that ECP has been 'clarged
as per the mandate of the Constitution. It was
means 'election on tine'. ECP has
witlh duty' to hold election and holding of Election
contrary to the
therefore acted contrary to its constitutional mandate to notify a date
countenarnced by this Court.
mandate of the Constitution. This can simply not be

on the foundation of representative

(F) That the whole edifice of the Constitution is based
through which the people elect their
government. Unless there are elections
established by the Constitution will
representatives, the whole schemne of governance
possible without elections being held
collapse. Constitutional governance is simply not
inevitable consequence of the postponement
as per the mandate of the Constitution. The
Punjab Assembly will
of the date as 08.10.2023 to the
of elections and the announcement cannot be the
office which
Government will continue to remain in
be that the caretaker
case.

an unelected and selected

Under the Constitution there is no provision in which
(G)
more than a period of 90 days.
operate for
caretaker government can continue to
unrepresented
beyond the scope and ambit of the Constitution to allow an
(H) It is of a
continue to govern the population of Pakistan, including that
Government to caretaker
tenure of the
it is very clear that the
province. Under the Constitution, government
temporary and it is only to facilitate the transition from one
government is
government cannot even make a
another. This is the reason why the caretaker
to next elected
binding decisiorn which can have an impact on the
permanent and
no elected
During the caretaker transitory government, there is also
government. standstill.
constitutional machinery comes to a
government in existence and, hence, the
Constitution for the caretaker
the reason why no provision has been made in the
This is the
the period of 90 days for otherwise
government to continue to operate beyond
 CCretaker government would be able to usurp the democratic system by not
holding the
election and continuing with the unelected set up. It would be thus extending the
tenure
of an unelected caretaker government, not to hold election within the timeframe
provided for by the Constitution as already observed by this Hon'ble Court.

(1) That to hold the election, not later than 90 days stood 'inal, past and closed' whern this
Hon'ble Court issued the judgment d.01-03-2023 in SMC.01/2023 after hearing all
parties. This Hon'ble Court gave comprehensive direction that elections to be held not
later than 90 days. But this Hon'ble Court, however held that "If such a course is not
available, then the Election Commission shall in like manner propose a date for the
holding of the pollthat deviates to the barest minimum from the aforesaid deadline".
This is maximum space for exercise of discretion provided by this Hon'ble Court. Save
as aforesaid, Governor had no jurisdiction to consider or foresee any other Schedule
whatsoever. Governor could not have sit on those directions of this Hon'ble Court as a
'court of appeal' to arrive at any other conclusion. Hence, the Impugned Letter and
Notification are ultra vires the Constitution and Order of this Court.

That the Constitution does not allow or permit that election to an Assembly can be
delayed beyond the mandatory period of 90 days due to reasons of any so-called
financial constraints or a perceived law and order situation or lack of availability of
adequate personnel. The Constitution of Pakistan does not recognize any such illegal
excuses. As afore stated, the elections are at the core of the Constitution and fundamental
Without an
to a democracy without which the constitutional nachinery cannot work.
elected representative Assembly, nogovernment can be formed or function nor can any
laws be passed and the Executive comes to a complete standstill.

dt.22-03-2023 relating to the financial

(K) That the reasons given by ECP in its Order
adequate
constraints and security situation of the country and non-availability of
valid' in its Order
personnel were rot accepted by this Hon'ble Court as 'justifiable or
dt.04-04-2023. Instead, ECP categorically stated during hearing that Election would be
concerned'. This Hon'ble
held, provided its was provided the requisite support by all
Court has already issued directions vide Order dt.04-04-2023. Therefore (without
08-10-2023),
conceding that there existed any reason to Notify Election date for KPK as
no justifiable reason exists to cause delay of holding of Election in KPK. The Impugned
Letter and Impugned Notification are thus liable to be set aside and direction regarding
holding of election in KPK within 90 days (subject to barest minimum deviation) be
issued by this Hon'ble Court in the interest of justice.
() That it is reiterated that under Article 224(2) of the Constitution, when the
National or a
-/3
Provincial Assembly is dissolved, ageneral election to the Assembly is mandatorily to
be held within aperiod of ninety days after the dissolution and the results of the election
have to be declared not later than fourteen days after consolidation of results. Thus,
intention of the Constitution is that the elections have to be held within the stipulated
period. And NO election could bedelayed on the pre-text that 'finances' or 'security
personnel are not made available by Federal Government. Election Commission ought
not to delay election rather it should have issued Notification in light of those provisions
because BCP being aconstitutional body is to act independently while notifying Election
Date for any election.

well ECP that the

(M) That, without prejudice to the above, the reasons given by Governor as
conducive
finances are not available or that law-and-order situation in the country is not
delay
to hold the elections is, with respect, legally flawed and a disingenuous excuse to
the elections inter alia because:

for delaying the elections.

(1) Such a reason is not recognized in the Constitution

ECP to delay the elections that the law

(2) If such a power is given to the Governor or
and order situation in the country is unstable,
then that would mean that elections
not warranted.
can be delayed indefinitely and forever, which is
situation in the country will improve by
(3) There is no assurance that the security
by the Governor. If anything, the
the arbitrary date of 08.10.2023 as fixed
months will only further deteriorate
postponement of provincial elections by six
the security situation.
and Provincial
situation is the responsibility of the Federal
(4) That the law-and-order Provincial caretaker government
Governments and there can be no excuse for the required
say that they cannot provide the
or the Federal Government in power to rely on such a
prior to it nor can the ECP
security for the date of the elections or
pretext to delay the election.
of Pakistan as well as
Section
of the Constitution
(5) Under Articles 148 (3) and 220 Federation, Federal
50 of the Election Act 2017, it
is the responsibility of the
executive authorities in
Government and all
government, Provinces, Provincial government in KPK) to
(including the caretalker
the Federation and Provinces law and
days regardless of any prevailing
ensure that elections are held in 90 necessary security and
obligation to provide the
order situation. In fact, it is their
maintained.
ensure that law and order is
judgement dated
Supreme Court in para 15 of the
(6) It is also being specified by proactively provide all aid and assistance as
01.03.2023 that all concerned must
maybe required by ECP.
precedent
excuse for delaying election then such a
(7) Iflaw and order can be made an
 would become a legal mandate for a caretaker Government in the federation and
or provinces to continue to extend their period and tenure by insisting that they
are unable to provide the security for maintaining the law and order for the
elections to be held and thereby continue to indefinitely extend its period and
tenure.

The so-called excuse for law and order would mean that the Constitution can
(8)
always be held in abeyance on this ground every time the elections are due under
the Constitution.

(9) The Constitution does not recognize financial constraint as the reason to delay the
election.

(10) As submitted above, elections are at the core of the Constitution and fundamental
to democracy without which the constitutional machinery cannot work. No
Government can function, nor any laws can be passed and the Executive comes to
unfathomable that a
a standstill without an elected Parliament or Assembly. It is
Government may continue to function in all matters as normal and can spend
funds on everything else but when it comes to the most fundamental aspect of a
democracy, i.e., holding of elections, the funds are not available.
arrange the
(11) It is the responsibility of the Federal and Provincial Governments to
funds for holding the elections on a priority basis to the exclusion of all other
basis of financial
matters and it is no eXcuse to postpone the elections on the
constraints.

elections, then
(12) In fact, if this excuse is allowed to be valid for the postponing of
the elections can be delayed indefinitely for this reason which would amount to
subversion and usurpation of the Constitution.

(13) It would be an indirect method of holding the Constitution in abeyance.

the clear mandate of the

(N) That Governor KPK having announced the date contrary to
the two
Constitution tantamount to depriving the Petitioners (and all other citizens of
the Constitution to
Provinces) of the fundamental right guaranteed under Article 17 of
election is announced, the
contest and participate in elections. Unless the date of the
exercise of this right willbe frustrated.

to the
(O) That the titled Petition raises questions of public importance with reference
enforcement of fundamental rights conferred inter alia by Articles 14 and 17 of the
Constitution as well as interpretation of Art.218(3) and 105 of the Constitution and
Election Act, 2017. There can be no denial that the right to democratic, Constitutional
governance and to have a representative, duly elected legislature and government is an
integral part of the right to life and dignity. Moreover, the right to participate in elections
is one aspect of the concept of political justice which is set out in the Preamble to the
Constitution and included in Article 17. Thus, the titled Petition under Art.184(3) to be
 entertained and allowed in the interest of justice especially when this
Hon'bleCourt itself
left the Election Date of KPK open in the first round of
litigation with permission to file
petition as Governor was u°epresented in those
proceedings.
P) That the titled petition is being iled in urgency, therefore leave of this Court is craved to
urge additional grounds when this Petition is taken up for hearing by this Court. And
alllegal questions as and where appropriate are reiterated as submissions on behalf of
the Petitioners.

It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased
to:

(a) Set aside the Impugned Letter dt.24-03-2023 of Governor KPK as unlawful, inter
alia, on the grounds urged hereinabove;

(b) Set aside the Impugned Letter dt.24-03-2023 as contrary to the directions issued by
this Hon'ble Court on 01-03-2023 in Const.P.02/2023 and is non-est in view of
Order dt.04-04-2023 passed in Const.P.05/2023;

(c) Set aside the Impugned Notification dt.27-03-2023 as unlawful, illegal and without
lawful authority as well as contrary to the Order dt.01-03-2023 and is non-est in

view of Order dt.04-04-2023 passed in Const.P.05/2023;

(d) Direct ECP in circumstances of this case to hold General Election to KPK Assembly

not later than 90 days subject to the barest minimum to that timeframe;

(e) Any grant any other relief as deemed appropriate and just in the circumstances.

Drawn By Filed By

Ahmad Nawaz Ch,

Ai Zafar, Senior ASC
Advocate-on-Record

Barrister Gohar Khan, ASC ANMED NAWAZ CEANIDARV

Advocate-on-Record
SupremeGourt of Palkistan
Zahid Nawaz Cheema, ASC Islamabad, Cell: 0332-5414643

Certificate:
Certified that earlier petition on the subjectwas not adjucicated upon by this Hon'ble Court
in view of no representation of Governor KPK with permission to file afresh befoe any
appropriate forum.
Dated: 06-04-2023

AaMOD NAWAZCEAUDHNM
Advocate-on-Record
Supreme Court ofPakistan
Islamabad. Cell: 0332-5414643