Form No: HCJD/C

JUDGEMENT SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD
JUDICIAL DEPARTMENT

Case No: Writ Petition No.4736 of 2022

Haris Khan
Vs.
Election Commission of Pakistan etc.

Petitioners by: M/s. Raja Inam Ameen Minhas, Sardar

Taimoor Aslam Khan, Ch. Ali Nawaz,
Mian Zain-Ul-Abidin Qureshi, Faiz
Muhammad Mahar, Adil Aziz Qazi,
Zopash Khan, Jameel Fayaz Rajpoot,
Saad Ahmed Rajpoot, Hassan Javed,
Javed Saleem Shorish, Junaid Ahmed
Qureshi, Nasir Mehmood, Mudassar
Abbas & Kashif Hussain Shah,
Advocates.
Mr. Jahangir Khan Jadoon, Advocate-
General, Mr. Zohaib Hassan Gondal,
State Counsel in W.P. No.4809/2022.

Respondents by: Mr. Ashtar Ausaf Ali, Attorney-General

for Pakistan.
Mr. Jahangir Khan Jadoon, Advocate-
General.
Barrister Munawar Iqbal Duggal,
Additional Attorney-General.
M/s. Arshad Mahmood Kayani and
Fazal ur Rehman Khan Niazi, Deputy
Attorney-General.
Mr. Azmat Bashir Tarar, Assistant
Attorney-General.
Zohaib Hassan Gondal, State Counsel.
Mr. Saad Hassan, Advocate for Election
Commission of Pakistan.
Muhammad Arshad, DG (Law) Election
Commission of Pakistan.
Khurram Shahzad, ADG (Law) Election
Commission of Pakistan.
Sharif Ullah, DG Local Government
Elections.
Mr. Zaigham Anees & Ms. Bushra
Rasheed, Law Officer, Election
Commission of Pakistan.
Ubaid ur Rehman, Law Officer NADRA.
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W.P. No.4736 /2022

Date of Decision: 23.12.2022.

AAMER FAROOQ, C.J.- The present judgment shall

decide the captioned petition as well as petitions

mentioned in the Schedule-A attached herewith inasmuch

as common questions are involved.

2. The petitions before this Court can be divided into

two categories; in one set the petitioners are candidates for

the elections for local bodies in Islamabad Capital

Territory or voters of different Union Councils and are

aggrieved of the voter list prepared and finalized by the

Election Commission of Pakistan (ECP or the

Commission), (the first category includes W.P.

No.4738/2022, W.P. No.4752/2022, W.P. No.4775/2022,

W.P. No.4777/2022 & W.P. No.4778/2022). In the second

category which includes W.P. No.4787/2022 and W.P.

No.4809/2022the petitioners have challenged order dated

20.12.2022 issued by Election Commission of Pakistan

whereby it has rejected the decision of the Federal

Government to increase the Union Councils in Islamabad

Capital Territory from 101 to 125; in Writ Petition

No.4799/2022 and W.P. No.4824/2022 the petitioners seek

holding of elections notwithstanding the increase in

number of Union Councils.

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W.P. No.4736 /2022

3. Learned counsel for the petitioners, in W.P.

No.4736/2022, W.P. No.4738/2022, W.P. No.4775/2022 &

W.P. No.4777/2022, inter alia, contended that under

Article 218 (3) of Constitution of the Islamic Republic of

Pakistan, 1973 (the Constitution) it is the duty of the ECP

to hold fair and transparent elections. It was further

contended that the act of ECP by introducing and including

the votes of other Union Councils in one Union Council is

violation of fundamental rights of the petitioners as

provided under Article 17 of the Constitution. In support of

his contentions learned counsel placed reliance on the case

titled Syed Hafeez Zuddin v. Province of Sindh through

Chief Secretary (PLD 2016 Sindh 63). It was contended

that the dealing with the Electoral Rolls is one of the

primary functions of the ECP which is provided in the

Islamabad Capital Territory Local Government Act, 2015

(the Act of 2015) as well as Elections Act, 2017 (the Act

of 2017). It was submitted that Sections 24 to 30 provide a

detailed mechanism with respect to preparation of the

Electoral Rolls and finalization of the lists. It was

submitted that if any person desires to have its vote

transferred he may do so under Section 37 of the Act of

2017.
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W.P. No.4736 /2022

4. Learned counsel for the petitioners, in W.P.

No.4752/2022, adopted the arguments addressed by Raja

Inam Ameen Minhas, ASC.

5. In the other set of the litigation the petitioner is

aggrieved of the decision by ECP whereby

notwithstanding the change in number of Union Councils

the elections have been ordered to be held as per schedule.

Learned Advocate-General, Islamabad Capital Territory

and Mr. Adil Aziz Qazi, ASC contended that the Federal

Government, keeping in view Articles 32, 37 (1) & 40 (A)

of the Constitution is bound to promote and enhance the

local bodies. It was submitted that keeping in view the

decision was taken by the Federal Government and

accordingly the change in the voters list is to be effected;

however, the referred fact has not been taken into account

by the ECP. It was contended that no opportunity of

hearing was provided to any of the parties or person before

issuance of the impugned order; that even in past when the

numbers of Union Councils were altered and enhanced to

101 the election schedule had been announced but the ECP

in order to ensure transparency, fairness and devolution of

powers in true spirit deferred the schedule and carried out

delimitation and change in the voter list accordingly and

eventually issued the present schedule. He took the Court

through the provisions of the Act of 2015.

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W.P. No.4736 /2022

6. Learned Attorney-General for Pakistan, inter alia,

contended that Section 4 of the Act of 2015 is distinct from

Section 6 ibid. It was argued that bar regarding alteration

is provided in Section 4(4), however, no such restriction is

provided in Section 6 of the Act of 2015. It was contended

that Section 4 is broader inasmuch as it talks of broader

division of local area in Islamabad Capital Territory into

Union Councils and Metropolitan Corporation whereas

Section 6 deals with change in number of Union Councils.

It was contended that even in past after the announcement

of schedule change in the number of Union Councils was

given effect, hence at this stage ECP is estopped from

refusing to implement the decision of the Federal

Government.

7. The representatives of ECP, inter alia, submitted

that there is no flaw in the voters list and it is according to

law in letter and spirit. It was submitted that under Section

4(4) of the Act of 2015 no alteration in local area can be

carried out once the election schedule has already been

announced.

8. Sardar Taimoor Aslam, ASC learned counsel for

the petitioner in W.P. No.4799/2022 defended the order of

the Commission dated 20.12.2022 and sought direction to

it for holding of elections as per schedule. He took the

Court through Sections 4 & 6 of the Act of 2015 to argue

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W.P. No.4736 /2022

that interpretation handed down by ECP seems to be

correct. Similar arguments were advanced by learned

counsel for the petitioner in W.P. No.4824/2022.

9. The rival submissions of the parties have been

heard and the documents placed on record examined with

their able assistance.

10. The Commission is a Constitutional body formed

under the Constitution and carries out the functions and

duties provided under the Constitution. In this behalf under

Article 218(3) of the Constitution it is the duty of the ECP

to organize and conduct elections and to make sure that

such arrangements are necessary to conduct the elections

honestly, justly, fairly and in accordance with law and that

corrupt practices are guarded against. Article 219 of the

Constitution enshrines the primary duties of the

Commission and the same, inter alia, includes holding of

the Local Government Elections; it also includes preparing

Electoral Rolls for elections and carrying out such other

functions as are specified by the act of Parliament. The

duties and functions of the ECP were spelt out in detail by

the Hon’ble Supreme Court of Pakistan in paragraph 80 of

the judgment titled Worker’s Party Pakistan through

Akhtar Hussain, Advocate General Secretary v.

Federation of Pakistan etc. (PLD 2012 SC 681). In

addition to the Constitutional obligations of the

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W.P. No.4736 /2022

Commission provided hereinabove the Act of 2015 also

lays down that it shall be the function of the Commission

to hold local Government elections. The petitioners, in

essence, seek direction to the Commission to fulfill their

constitutional and statutory obligations under Sections 4 to

7 of the Act. As noted above in the first set of category the

petitioners are Members/Candidates/Voters in the various

Union Councils and aggrieved of the fact that in the voters

list the voters from other Union Councils have either been

added or deleted which is in violation of the provisions of

the Act of 2017. In this regard reference has been made to

Chapter-IV of the Act of 2017 which provides and

elaborates mechanism for preparation of the Electoral

Rolls. The ECP in order to do so is to rely on the data of

National Database & Registration Authority (NADRA)

[Section 25 of the Act of 2017]. In order to prepare

Electoral Rolls Electoral Area is to be demarcated and

notified and whoever is resident of the area would be in

the Electoral Rolls of the same (Sections 26 and 27).

Section 28 of the Act of 2017 provides that the preliminary

Electoral Rolls are to be published for inviting applications

for correction, if any, and by virtue of Section 29 ibid a

Revising Authority of any electoral area is to be appointed.

Section 30 ibid allows for lodging claims and objections

and Section 33 ibid for inquiry into the claim and

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W.P. No.4736 /2022

objection. The correction of Electoral Rolls is provided in

Sections 34 & 35 of the Act of 2017. There is nothing on

record which indicates that after the enhancement of Union

Councils from 50 to 101 the revision in the voter list was

done within the mandate of aforementioned provisions of

statute, inter alia, after increase in the Union Councils the

needful was required to be done by adjustment of the voter

list in the excessive areas as the learned counsel for the

petitioners pointed out that the voters have been added

and/or deleted from other Union Councils and in this

eventuality the purpose and mandate of Act of 2017 as

well as the Act of 2015 and the Constitution is defeated.

ECP ought to have undertaken the exercise in fulfillment

of its statutory obligation for preparation of voters list

accordingly; though during the arguments certain

documents were placed on record, evidencing the

undertaking of exercise by ECP under Chapter-IV of the

Act of 2017 but they do not seem to be coherent within the

mandate of law. In respect of second category of lis, as

noted above, ECP has decided to proceed further in the

matter notwithstanding the change in the number of Union

Councils by way of increase to 125. Learned counsel for

the petitioners, rightly pointed out that in the past as well

after announcement of the schedule enhancement of the

Union Councils was made and the ECP deferred the

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W.P. No.4736 /2022

schedule of Elections in Islamabad Capital Territory to

accommodate the enhancement. The Federal Government

ought to have undertaken the exercise of enhancement

from 50 to 101 Union Councils in June 2022

comprehensively to avoid the present situation; however,

this court cannot interfere in the decision of the Federal

Government undertaken to devolve power in true spirit to

the people of the locality and if in its wisdom, it deems

appropriate that 125 Union Councils will serve best the

Islamabad Capital Territory, that carries the mandate. The

Commission ought to have understood the perspective of

the Federal Government before passing the impugned

order dated 20.12.2022 which on the face of it violates

Section 4(4) of the Act of 2015; however, as noted above,

the fair, transparent and effective elections is mandate of

the Commission. Moreover, the Hon’ble Supreme Court

of Pakistan through various pronouncements have time and

again impressed upon the Commission to ensure

conducting the local bodies elections all over the Pakistan

and the Commission is under an obligation to comply with

the same and while doing so keeping in view its mandate

as provided in Article 218(3) of the Constitution as well as

principles laid down in PLD 2012 SC 681 supra. In

somewhat similar circumstances when the seats were

enhanced in June 2022 the matter came up before this

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W.P. No.4736 /2022

Court in W.P. No.2235/2022 in which this Court vide

decision dated 22.06.2022 made certain observations and

directions and disposed of the same. The crux of the

directions made is spelt out in paragraph 5 of the decision

which is as follows:

―5. The decision taken by the Commission is

definitely in consonance with the scheme of
the Act of 2015. The grievances of the
petitioners have been redressed. The
Federal Government and all other
agencies/organs of the State are directed to
assist and facilitate the Commission in
fulfilling its obligations, inter-alia,
described under sections 5, 6 & 7 of the Act
of 2015. It is expected that the Commission
will complete the process of delimitation of
101 Union Councils within the period
specified under section 7 of the Act of 2015
i.e. sixty five days. Thereafter, without delay,
the Commission would be further expected
to announce the election schedule and hold
the elections in a fair and transparent
manner. In case, the Federal Government
fails in its duty to assist the Commission in
completing the process, then it shall be at
liberty to file an application for restoration
of these petitions.‖

10. The issue regarding interpretation of Section 4 & 6

of the Act of 2015 seems to be of first impression. For ease

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W.P. No.4736 /2022

of convenience the referred Sections of statute are

reproduced below:

“4. Local Area:--- (1) For purposes of

this Act, the Government shall, by
notification, specify the local area within
Islamabad Capital Territory as Union
Councils and for the Metropolitan
Corporation, as the case may be.
(2) The Government may, by notification,
after inviting public objections and
suggestions, alter the limits of a local area
and declare that any area shall cease to be a
Union Council.
(3) Any two or more adjoining Union
Councils within Islamabad Capital Territory
may, after inviting public objections through
a resolution passed by two-third majority of
the total membership of each of the Union
Councils, make a proposal to the
Government for a change in their respective
boundaries subject to the condition that no
revenue estate shall be divided and the size
of population in the relevant Union Council
shall, as far as possible, be closed to the
average population of similar Union
Council in Islamabad Capital Territory.
(4) The Government may, with the
concurrence of the Election Commission,
alter the limits of a local area under this
Section after the initiation of proceedings of
delimitation of constituencies by the
Election Commission but the Government
shall not alter the limits of a local area after
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W.P. No.4736 /2022

the announcement of election schedule for

election in local area.
………………….
6. Local Government and
Delimitation.—(1) The Government shall,
by notification in the official gazette,
determine the number of Union Councils
within Islamabad Capital Territory.
(2) After the demarcation of the local
Government under Section 5 and
determination of number of Union Councils,
the Election Commission, shall delimit
Union Councils.
(3) The Election Commission shall
delimit and notify [in the official gazette] the
Councils on the basis of the principles laid
down in Section 7, as nearly as possible,
under the delimitation of Constituencies Act,
1974 (XXXIV of 1974) or any other Act of
Majlis –e- Shoora (Parliament).‖

11. The plain reading of Section 4(1) shows that it

explains the concept of local area which is to be notified

by Government [Federal Government as defined in Section

2 (t) of the Act of 2015] as Union Councils and for the

Metropolitan Corporation, as the case may be. Under this

concept, it seems that the local area within Islamabad

Capital Territory would be notified as Constituting, Union

Councils and Metropolitan Corporation; Subsection 2 of

Section 4 allows alteration of a local area and declare that

it ceases to be a Union Council; subsection 3 ibid provides

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W.P. No.4736 /2022

for merger of 2 Union Councils and under subsection 4 of

Section 4 of the Act of 2015 the Government can alter the

local area under Section 4 after initiation of process of

delimitation of constituencies by the Commission but the

same cannot be done once election schedule for the local

area is announced. Under Section 6(1) of the Act of 2015

the Government is to determine the number of Union

Councils within Islamabad Capital Territory. The holistic

reading of Sections 4 to 6 shows that Section 4(1) pertains

to delimitation of area within the Islamabad Capital

Territory as Union Council or the Metropolitan

Corporation, as the case may be; Section 5 divides local

Government into different categories i.e. Union Councils

or Metropolitan Corporation and then Section 6 allows the

Government to determine the number of Union Councils.

Naturally after notification of areas into Union Councils or

Metropolitan Corporation, the divide is made into types of

local Government (as provided in Section 5) and the

number of Union Councils is determined by the Federal

Government. The bar only seems to be applicable vis-à-vis

the division of local areas into Union Councils where it is

done under subsection 4 of Section 4. As noted above,

subsection 4 allows the Government to alter the local areas

with concurrence of the Commission after initiation of

process of delimitation by the latter but would not do so

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W.P. No.4736 /2022

where the election schedule of local area has been

announced. The bar provided in subsection 4 ibid does not

seem to be applicable in the case of Section 6(1) of the Act

of 2015, but only confined to alteration made pursuant to

subsection 4. Since the cases in hand seem to be first

impression, the Commission ought to have provided an

opportunity to all concerned before reaching to conclusion

vide order dated 20.12.2022.

12. Since the discrepancies pointed out in the voters

list and the grievance raised in the first category of the case

seems to be plausible and bona fide hence ECP is required

to look into the matter and turning a blind eye would

tantamount to flouting the spirit of the Constitution and

Election Act, 2017.

13. In view of the above, the first category of the

petition mentioned hereinabove are converted into

representation and are remitted to ECP to consider the

grievance of the petitioners with expectation to decide the

same in accordance with law after providing opportunity of

hearing. Insofar as the second category of case is

concerned regarding setting aside of impugned order dated

20.12.2022 the Commission before passing the same

ought to have heard the perspective of the Federal

Government regarding enhancement of number of Union

Councils and do the needful accordingly as it has done in

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W.P. No.4736 /2022

past. In this regard this Court in W.P. No.2235/2022 vide

order dated 22.06.2022 had expected that the Commission

would consider the contention of the petitioners in light of

the then notification of the Federal Government under

Section 6 of the Act of 2015 and consider the extending

date for filing of nomination papers. In light of the above

observations order dated 20.12.2022 of the Commission is

not sustainable and in the interest of justice and keeping in

view the mandate of Commission under Article 218(3) of

the Constitution and other provisions it is only expected

that the matter shall be considered holistically and the

needful be done in light of the relevant law. The

Commission is expected to consider the issue of

enhancement in number of Union Councils afresh after

providing opportunity of hearing to all concerned.

14. For the above reasons the writ petitions in the first

category are disposed of and the office is directed to remit

the copies of the petitions as representations to be decided

after providing opportunity of hearing. The parties shall

appear before Commission on Wednesday 28th December

2022. Writ Petitions No.4809/2022 and W.P.

No.4787/2022 are allowed as order dated 20.12.2022 is set

aside. The parties shall appear before the Commission for

decision on the issue of impact of increase in number of

Union Councils vide notification dated 19.12.2022 by the

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W.P. No.4736 /2022

Federal Government; the Commission is expected to

decide the matter afresh after affording opportunity to all

the concerned including the Federal Government and

taking into consideration the law. The parties for the

purpose of decision on notification dated 19.12.2022 shall

appear before the Commission on 27.12.2022. On account

of reasons handed down in W.P. No.4809/2022 and W.P.

No.4787/2022, W.P. No.4824/2022 and W.P.

No.4799/2022 are disposed of as directions and

decelerations made cannot be allowed, however, the

petitioners shall be at liberty to voice their grievance

before the Commission.

(CHIEF JUSTICE)
*M.Naveed*