BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

Constitutional Petition No. _____ of 2023

1. Mohammad Sibtain Khan s/o Mohammad Abdul Rehman Khan r/o Abdul
Majeed Khan, Piplaan Shehar, Tehsil Piplaan (Speaker, Provincial Assembly of
Punjab)

2. Mushtaq Ahmad Ghani s/o Abdul Ghani r/o Ghani Bagh, Murree Road,
Abottabad (Speaker, Provincial Assembly of KPK)

3. Abdul Rehman Khan s/o Abdul Ghafoor Khan r/o Gulberg II, Flat No.64-B,
Lahore (Member, Provincial Assembly of Punjab).

4. Mian Mahmood ur Rashid s/o Mian Muhammad Rashid r/o House No.39 A,
Rachna Block, Allama Iqbal Town, Lahore (Member, Provincial Assembly of
Punjab).

5. Asad Umar, Secretary General, Pakistan Tehreek-i-Insaaf, R/o Flat No.716,

Silver Oaks, Sector F-10, Islamabad.

6. Pakistan Tehreek-e-Insaf (PTI) having its registered office at Central

Secretariat, First Floor, Fortune Plaza, 72 East Jinnah Avenue, Sector G-7,
Islamabad through its Secretary General, Mr. Asad Umer.

…Petitioners
Versus
1. Election Commission of Pakistan
Through Chief Election Commissioner
Sector G5/2
Constitution Avenue
Islamabad.

2. Federation of Pakistan
Through

a. Ministry of Parliamentary Affairs

Through its Secretary to the Parliamentary Affairs Division

b. Ministry of Law and Justice

Through its Secretary to the Law and Justice Division

c. Secretary, Cabinet Division

3. Province of Punjab
Through Chief Secretary
Civil Secretariat Lahore.

4. Province of Khyber Pakhtunkhwa

Through Chief Secretary
Civil Secretariat Peshawar.
 5. Governor of Khyber Pakhtunkhwa
Through Principal Secretary
Governor House Peshawar
…Respondents

Constitutional Petition under Article 184(3) of the Constitution of the

Islamic Republic of Pakistan, 1973

Respectfully Sheweth: -
FACTS IN BRIEF

1. That the Hon’ble Supreme Court of Pakistan vide order dated 01.03.2023 directed
the President of Pakistan and the Governor of KPK to respectively announce the dates
of elections to the Provincial Assemblies of Punjab and KPK respectively with the
express condition that the elections have to be held within 90 days of the dissolution
of the assemblies (the Punjab Assembly stood dissolved on 14.01.2023 while the KPK
Assembly stood dissolved on 18.01.2023). The Supreme Court allowed the barest
minimum deviation from the 90 days benchmark keeping in view that considerable
time had passed since the dissolution of the Assemblies at the time of the decision
dated 23.02.2023.

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

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

4. That however in defiance and subversion of the Constitution and violation of the
judgement of the Supreme Court, ECP has unilaterally, vide the impugned order
dated 22.03.2023, changed the date of holding of elections in the Punjab Assembly
and decided that the elections will be held on 08.10.2023.
5. That with due respect to ECP, the order dated 22.03.2023 passed by ECP, announcing
the date of elections to the Punjab Assembly as 08.10.2023, is in violation of the
Constitution as well as the judgement of the Hon’ble Supreme Court of Pakistan dated
01.03.2023. By passing this order 22.03.2023, ECP has committed a hat-trick of
blatant constitutional violations (i) ECP has subverted and amended the Constitution
by increasing the period for holding the elections from 90 days to 267 (ii)
Overruled/set aside the judgement of the Supreme Court dated 01.03.2023 (iii)
Replaced the constitutionally announcement of the date of elections (30.04.2023) by
the President of Pakistan with its own arbitrarily set date of 08.10.2023. ECP’s order
dated 22-03-2023 is hence illegal, ultra vires the Constitution, null and void and
liable to be set aside accordingly.

6. That it is respectfully submitted that the reason why this petition is filed directly in
the Supreme Court under Article 184(3) of the Constitution is because undoubtedly
the matter involved in the petition is of public importance with reference to
enforcement of fundamental rights of the millions of people of Pakistan, particularly
the people of Punjab and 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 instant
petition under Article 184(3) is competent. In fact, it is, in the facts and
circumstances, the most efficacious and suitable remedy. Reliance is placed on the
judgements of the Hon’ble Supreme Court of Pakistan which it has decided that the
Supreme Court has the jurisdiction to directly adjudicate upon a matter which is of
public importance and involves enforcement of fundamental rights.

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

8. That having given the brief background above, it is submitted that the following
amongst other questions of laws of considerable public importance, relating to
enforcement of fundamental rights, arise in the instance case:-
 QUESTIONS OF LAW

i. Whether the Election Commission of Pakistan has the power to

unilaterally amend the Constitution of the Islamic Republic of Pakistan,
1973, by extending the date of elections beyond the period of 90 days as
mandated?

ii. Whether the Election Commission of Pakistan has the jurisdiction to

overrule and review the decision of the Supreme Court of Pakistan dated
01.03.2023?

iii. Whether the act of Election Commission of Pakistan in extending the date
is violative of the Constitution and in defiance of the Supreme Court
decision dated 01.03.2023?

iv. 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?

v. Whether Article 254 of the Constitution read with Article 218 can be
invoked to preemptively delay the date of elections?

vi. Whether the Constitution can function without the holding of the elections
to an Assembly?

vii. Whether the tenure of the caretaker Government can be extended beyond
90 days?

viii. Whether the Election Commission of Pakistan has any jurisdiction to

withdraw the Election Program announced in light of and in pursuance of
directions of this Hon'ble Court in SMC.01/2023?

ix. Whether the Order dt.22-03-2023 passed by the Election Commission of

Pakistan whereby Election Schedule has been withdrawn is not corum non
judice and ultra vires?

x. Whether this Hon'ble Court has not held and declared that ‘election’ had to
be held not later than 90 days or within barest minimum to that schedule
and whether the ECP Order is not contrary to that Judgment of this
Hon'ble Court?
 xi. Whether Art.218(3) or any provisions of Election Act, 2017 at all authorize
the Election Commission of Pakistan to ‘modify election program’ once
announced on the direction of this Hon'ble Court?

xii. Whether on the face of record ECP has not failed to issue any ‘directions’
at all to the Federal Government or it authorities under Art.220 of the
Constitution or under Para.15 of the Judgment of this Hon'ble Court dt.01-
03-2023 so as to ensure holding of election on 30-04-2023?

xiii. Whether in circumstance of the instant case all appropriate directions are
not to be issued by this Hon'ble Court so as to hold free, fair and transparent
election in Punjab on 30-04-2023?

xiv. Whether the Constitution envisages the interim Government to represent

the state for a period of longer than 90 days?

9. That the aforementioned questions of law arise out of the following:

FACTS
Dissolution of Punjab Assembly

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

Dissolution of KPK Assembly

11. That on 17.01.2023, the then Chief Minister of Khyber Pakhtunkhwa, Mr. Mahmood
Khan, advised Respondent No.5 to dissolve the KPK Assembly in exercise of his
Constitutional powers under Article 112(1) of the Constitution. On 18.01.2023, the
KPK Assembly was dissolved by Respondent No.5 pursuant to the said advice.

12. 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.

13. That Sardar Usman Khan Buzdar, Parliamentary leader, Punjab Pakistan Tehreek-e-
Insaaf also conveyed his concerns and requested Governor of Punjab to appoint a
date for holding the elections to the Punjab Assembly.

14. That the ECP, through letter dated 24.01.2023, also communicated with Governor of
Punjab and requested him to appoint a date for election to the Punjab Assembly
 between 09.04.2023 and 13.04.2023.

15. That the ECP, through letter dated 24.01.2023, also communicated with Respondent
No.5 and requested him to appoint a date for election to the KPK Assembly between
15.04.2023 and 17.04.2023.

16. That Respondent No.5 evaded the matter of appointing a date for holding elections
in the KPK Assembly in a televised statement on 27.01.2023 and stated that it is the
responsibility of the ECP to conduct elections.

17. That Respondent No.5, instead of announcing the election date of the KPK Assembly
as required under Article 105(3) of the Constitution, preferred the excuse of law and
order situation in KPK and advised the ECP through letter dated 31.01.2022 that
before fixing a date for the elections, the ECP should consult and take into confidence
the institutions/Law Enforcing Agencies as well as political parties.

Litigation in the Lahore High Court

18. That on 29.01.2023, Writ Petition No. 5851 of 2023 titled “Pakistan Tehreek-e-Insaaf
through its General Secretary Asad Umar v. Governor of Punjab and another was
filed before the Honorable Lahore High Court, Lahore, against inaction of
Respondents No. 1 and 6 for not appointing a date of election. The Honorable Lahore
High Court allowed the Writ Petition (and other connected petitions) through
Judgment dated 10.02.2023 and directed the ECP to immediately announce the date
of election of the Punjab Assembly after consultation with the Governor of Punjab, so
as to ensure that the elections are held not later than ninety days as per the mandate
of the Constitution. The operative part of the Judgment reads as follows:

“In view of the constitutional provisions mentioned above and the

judgments of the Supreme Court of Pakistan, the prayer made in the
“consolidated petitions” is allowed and the “ECP” is directed to
immediately announce the “date of election” of the Provincial Assembly
of Punjab with the Notification specifying reasons, after consultation with
the Governor of Punjab, being the constitutional Head of the Province, to
ensure that the elections are held not later than ninety days as per the
mandate of the “Constitution”.
[Emphasis Supplied]

19. That the directions given by the Hon’ble Lahore High Court, Lahore were not
complied with and no date of election was announced despite lapse of considerable
time and in spite of the fact that media reported that a consultative meeting was held
between the Governor of Punjab and officers of ECP. It may be pointed out that the
Governor of Punjab also filed an Intra Court Appeal No.11096/2023 against the
judgement dated 10.02.2023.
 Litigation in the Peshawar High Court

20. That on 07.02.2023, Writ Petition titled “Mashal Azam Advocate v. Federation of
Pakistan and others” was filed before the Honourable Peshawar High Court,
Peshawar, against the inaction of Respondent No.5 in appointing a date of election.

Litigation in Supreme Court

21. That the Division Bench of this Hon’ble Court while hearing Civil Petition
No.3988/2022 has vide order dated 16/02/2023 referred the matter to Chief Justice
for taking suo moto action in respect of the election matters.

22. That since the date of election was not being announced and the 90 days period was
expiring, in these circumstances, a Constitutional Petition No.2/2023 titled
“Muhammad Sibtain Khan and others Vs. Election Commission of
Pakistan and others” was also filed in the Hon’ble Supreme Court of Pakistan for
direction to the relevant authority to announce the date of elections.

23. That it is also pertinent to mention here that on 08.02.2023 the President of Pakistan
announced the date of the elections to the Punjab Assembly and KPK Assembly vide
Notification dated 17.02.2023 and this order of the President also became subject
matter of the SMC No.1 of 2023 (Suo Motu regarding holding of General
Elections to the Provincial Assemblies of Punjab and KP).

24. That SMC No.1/2023 and Constitutional Petition No.2/2023 were eventually decided
by a judgement dated 01.03.2023. In the majority judgement, the Hon’ble Court held
as follows: -

“14. It is further declared and directed as follows in

relation to the matters before the Court:

(a) In ordinary circumstances the general

election to the Punjab Assembly ought to be
held on 09.04.2023, the date announced by the
President in terms of his order of 20.02.2023.
However, we are informed that on account of
the delay in the emergence of the date for the
holding of the general election, it may not be
possible to meet the 90 day deadline stipulated
by the Constitution. It is also the case that
(possibly on account of a misunderstanding of
the law) the Election Commission did not
make itself available for consultation as
required under s. 57(1) of the 2017 Act. The
Election Commission is therefore directed to
use its utmost efforts to immediately propose,
keeping in mind ss. 57 and 58 of the 2017 Act, a
date to the President that is compliant with the
 aforesaid deadline. If such a course is not
available, then the Election Commission shall
in like manner propose a date for the holding
of the poll that deviates to the barest minimum
from the aforesaid deadline. After
consultation with the Election Commission the
President shall announce a date for the
holding of the general election to the Punjab
Assembly.

(b) The Governor of the KPK Province must after

consultation with the Election Commission
forthwith appoint a date for the holding of the
general election to the KPK Assembly and the
preceding clause (a) shall, mutatis mutandis,
apply in relation thereto.

15. It is the constitutional duty of the Federation, in

terms of clause (3) of Article 148, “to ensure that the
Government of every Province is carried on in
accordance with the provisions of the Constitution”.
There can be no doubt that this duty includes
ensuring that a general election to the Assembly of
every Province is held, and enabled to be held, in a
timely manner within the period set out in the
Constitution. This duty is in addition to, and applies
independently of, the duty cast under Article 220 on
“all executive authorities in the Federation and in
the Provinces to assist the Commissioner and the
Election Commission in the discharge of his or their
functions”. It follows that the Federation, and in
particular the Federal Government, is, inter alia,
obligated, on an immediate and urgent basis, to
forthwith provide the Election Commission with all
such facilities, personnel and security as it may
require for the holding of the general elections. In
like manner, it is the duty of the Provincial
Governments, acting under the Caretaker Cabinets,
to proactively provide all aid and assistance as may
be required by the Election Commission. The duty
cast upon the authorities as set out in s. 50 of the
2017 Act must also be discharged forthwith and
proactively.”

Disposal of ICA No.11069/2023 and Writ Petitions

25. That subsequently the ICA No.11069/2023 as well as the Writ Petitions pending
before the Peshawar High Court were disposed off accordingly in view of the
judgement of the Supreme Court dated 01.03.2023.

26. That as a further consequence of the above, the President of Pakistan also vide order
dated 03.03.2023 fixed the date of the election to be 30th April, 2023 in the Punjab
Assembly whereas the Governor KPK failed to announce the date of election and a
contempt petition against him is pending.
27. That however vide the impugned order dated 22.03.2023 ECP in purported exercise
of power under Article 218(3) of the Constitution decided to withdraw the election
program and changed the date from 30th April, 2023 to 8th October, 2023 beyond the
period of 90 days.

28. That the impugned order of ECP dated 22.03.2023 is without jurisdiction, unlawful,
corum non-judice, ultra vires the Constitution, illegal and, on the face of it, contrary
to the judgement dated 01.03.2023 passed by the Hon’ble Supreme Court and liable
to be set aside and the interference of this Hon’ble Court is required inter alia on
following
GROUNDS: -

(A) That ECP has no jurisdiction or power to amend the Constitution and decide
to hold the elections to the Provincial Assembly of Punjab 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
22.03.2023 and delaying date for elections of the Punjab Assembly to
08.10.2023 is a violation of the Constitution and tantamount to amending
and subverting it.

(B) 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 Punjab has to be held within 90 days (with only the
minimum deviation) and the date of election to the Punjab Assembly is to be
given by the President of Pakistan and further that all executive authorities
are to provide the funds, security, personnel etc. to ECP for the conducting
of elections. By announcing the date of elections itself, delaying the elections
and changing the date of elections as fixed by the President of Pakistan from
30.04.2023 to 08.10.2023, i.e. delaying the elections for a period of more
than 183 days beyond the limitation of 90 days after dissolution as prescribed
by the Constitution, and giving flimsy excuses for the same which have no
relevance or basis in the Constitution and are irrational, absurd and
fabricated, not only has the ECP acted in violation of the Constitution but has
also refused to follow, and deliberately disobeyed it, and in fact reviewed and
overruled the judgement of the Hon’ble Supreme Court of Pakistan dated
01.03.2023. ECP cannot act in defiance of the directions of the Supreme
Court as it has done by passing the impugned order dated 22.03.2023. ECP’s
impugned order dated 22.03.2023 is hence illegal and liable to set aside
 accordingly.

(C) That under the law, as determined by the Hon’ble Supreme Court of Pakistan
in the judgement dated 01.03.2023, it is the President of Pakistan who is
entitled by virtue of Section 57 of the Election Act, 2017 to announce the date
of elections to the Punjab Assembly. The President of Pakistan having
announced the date for the elections, to be 30th April ECP has no jurisdiction
or power to unilaterally change the date, overrule the President’s decision,
and announce a date for the election to the Punjab Assembly on its own
volition. This announcement by ECP is in violation of the Constitution, the
Election Act, 2017 and the clear decision of the Hon’ble Supreme Court as
contained in judgement dated 01.03.2023 where it has been specified that
right to announce the date of the Punjab Assembly election is only with the
president. The impugned order of ECP is hence unconstitutional and liable
to be declared as such.

(D) That under the Constitution, it is very clear that the election will have to be
held within 90 days 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 its order dated 22.03.2023, the decision to delay the
election to the Punjab Assembly beyond 90 days, is an unconstitutional act
and without any basis in law.

(E) That whole edifice of the Constitution is based on the foundation of

representative government. Unless there are elections through which the
people elect their representatives, the whole scheme of governance
established by the Constitution will collapse. Constitutional governance is
simply not possible without elections being held as per the mandate of the
Constitution. It was this mandate that ECP has been ‘charged with duty’ to
hold election and holding of Election means ‘election on time’. ECP has
therefore acted contrary to its constitutional mandate. This can simply not
be countenanced by this Court.

(F) That the whole edifice of the Constitution is based on the foundation of
representative government. Unless there are elections through which the
people elect their representatives, the whole scheme of governance
established by the Constitution will collapse. Constitutional governance is
simply not possible without elections being held as per the mandate of the
 Constitution. The inevitable consequence of the postponement of elections
and the announcement of the date as 08.10.2023 to the Punjab Assembly will
be that the caretaker Government will continue to remain in office which
cannot be the case. Under the Constitution there is no provision in which an
unelected and selected caretaker government can continue to operate for
more than a period of 90 days. It is beyond the scope and ambit of the
Constitution to allow an unrepresented Government to continue to govern
the population of Pakistan, including that of a province. Under the
Constitution, it is very clear that the tenure of the caretaker government is
temporary and it is only to facilitate the transition from one government to
another. This is the reason why the caretaker government cannot even make
a permanent and binding decision which can have an impact on the next
elected government. During the caretaker transitory government, there is
also no elected government in existence and, hence, the constitutional
machinery comes to a standstill. This is the reason why no provision has been
made in the Constitution for the caretaker government to continue to operate
beyond the period of 90 days for otherwise the caretaker government would
be able to usurp the democratic system by not holding the election and
continuing with the unelected set up. However, by extending the date of
election to the Provincial Assembly beyond 90 days, a vacuum has been
created by ECP in which there will be no elected government in place.
Alternatively, by extending the date, ECP has also unconstitutionally
extended the life of a caretaker government.

(G) That at the outset, it is submitted that holding of election, not later than 90
days stood ‘final, past and closed’ when this Hon'ble Court issued the
judgment dt.01-03-2023 in SMC.01/2023 after hearing all parties including
the Election Commission of Pakistan. 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 poll that 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, ECP had no jurisdiction to consider or foresee any
other Schedule whatsoever. Therefore, all subsequent steps of holding
meetings, getting briefing on law and order situation or making requests for
finances, are (were) without lawful authority as this Hon'ble Court Order had
covered all aspects in Para.14 and Para.15 of the Order dt.01-03-2023. ECP
could not have sit on those directions of this Hon'ble Court as a ‘court of
appeal’ to arrive at any other conclusion. Instead, the ECP was bound to seek
 implementation of the Order dt.01-03-2023 by way of “issuance of direction
to the concerned authorities to make the requisite support available’ in light
of Order dt.01-03-2023 as well as under Art.220 of the Constitution.

(H) That Election Commission has also usurped its power and authority by
having announced the next Poll Day – 08-10-2023. In fact, the Election
Commission could not have withdrawn the Election Schedule altogether at
all once this Hon'ble Court had directed that ‘election had to take place’. All
major political parties were represented and so was the Federal Government
including the input of its authorities and agencies. None of them had filed
any petition to seek ‘review’ of the Order dt.01-03-2023 on any ground. And
in any case, that was not a case for ‘review’ because the entire case was about
interpretation of Art.224 and Ar.105. This Hon'ble Court having given the
requisite direction for ‘holding of election’, ONLY this Hon'ble Court could
have modified, if at all, the Poll Day. The Order of ECP goes contrary to the
Order of this Court.

(I) That the Constitution does not allow or permit that elections 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 to a democracy without which the
constitutional machinery cannot work. Without an elected representative
Assembly, no government can be formed or function nor can any laws be
passed and the Executive comes to a complete standstill. ECP has illegally
read into the Constitution and assumed itself the power to postpone the
elections on the basis of such reasons. It is unfathomable that the Federal
Government and Provincial Caretaker Government may continue to function
normally with all kinds of businesses as usual in all respects without being
hindered by any so-called financial or security or personnel constraints all
across the country including in the Province of Punjab, however, when it
comes to the most fundamental aspect of democracy, i.e., holding of
elections, the same cannot be held because of financial constraints, law and
order situation and lack of personnel. It is obvious that these excuses are
being self-created by ECP/Respondents No.2 (Federation of Pakistan), 3
(Province of Punjab), 4 (Province of Khyber Pakhtunkhwa) and 5 (Governor
of KP), surely for the purposes of facilitating each other to delay the elections.
It has been the persistent announcement of the Federal Government that
 they do not want to hold the elections for Punjab Assembly (and KPK
Assembly). If these reasons are deemed to be valid for delaying elections,
then that would mean that elections can be postponed indefinitely at the
whim and fancy of any Caretaker Government, who would want to prolong
their life forever, and the ECP.

(J) That the reasons given by ECP relating to the financial constraints and
security situation of the country and non-availability of adequate personnel
are not valid because there is no assurance that the financial and security
situations of the country will improve by the arbitrary date of 08.10.2023.
ECP would have one belief that suddenly on 08.10.2023, the financial
constraints, law and order situation, and non-availability of personnel would
become alright. However, the fact is that if anything, postponement of
elections by six months will only further deteriorate the security and financial
situation in the country as the caretaker government cannot function without
a complete mandate, with the political parties already coming to loggerheads,
and the people of Pakistan growing increasingly frustrated. The non-holding
of elections will indeed deteriorate the situation further.

(K) That it is reiterated that under Article 224(2) of the Constitution, when the
National or a Provincial Assembly is dissolved, a general election to the
Assembly is mandatorily to be held within a period 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 be postponed on the pre-text
that ‘finances’ or ‘security personnel’ are not made available by Federal
Government. Election Commission ought not postpone election rather
‘direct’ what is needed to ensure free and fair election, something which is
constitutional obligation of the Commission.

(L) That, without prejudice to the above, the reason given by ECP that the law
and order situation in the country is not conducive to hold the elections is,
with respect, legally flawed and a disingenuous excuse to postpone the
elections inter alia because;

(i) Such a reason is not recognized in the Constitution for delaying the
elections.

(ii) If such a power is given to ECP to delay the elections that the law and
order situation in the country is unstable, then that would mean that
 elections can be delayed indefinitely and forever, which cannot be
allowed.

(iii) There is no assurance that the security situation in the country will
improve by the arbitrary date of 08.10.2023 as fixed by ECP. If
anything, the postponement of provincial elections by six months will
only further deteriorate the security situation.

(iv) That the law and order situation is the responsibility of the Federal
and Provincial Governments and there can be no excuse for the
Provincial caretaker government or the Federal Government in power
to say that they cannot provide the required security for the date of the
elections or prior to it nor can the ECP rely on such a pretext to delay
the election.

(v) Under Articles 148 (3) and 220 of the Constitution of Pakistan as well
as Section 50 of the Election Act 2017, it is the responsibility of the
Federation, Federal government, Provinces, Provincial Government
and all executive authorities in the Federation and Provinces
(including the caretaker government in Punjab and KPK) to ensure
that elections are held in 90 days regardless of any prevailing law and
order situation. In fact it is their obligation to provide the necessary
security and ensure that law and order is maintained.

(vi) It is also being specified by Supreme Court in para 15 of the judgement

dated 01.03.2023 that all concerned must proactively provide all aid
and assistance as maybe required by ECP.

(vii) The reasoning of postponing the election on the ground of law and
order is also untenable because the date of 8th October 2023 has been
plucked out of the thin air by the ECP which shows its malafide. If the
caretaker Provincial Government and the Federal Government cannot
provide the security for the elections in April, then the question arises
that what is the assurance that they will provide such security on 8th
October 2023 or thereafter. There is in fact no assurance by or
evidence before the ECP that the law and order situation will suddenly
become better on 8th October 2023. This date of 8th October, 2023 has
no nexus with the law and order situation and is just a reason invented
for delaying the election.
 (viii) If law and order can be made an excuse for delaying election then such
a precedent 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.

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

(x) The history of Pakistan unfortunately is replete with many incidents

occurring in various parts of the country but elections have been held
in spite of same. Such incidents cannot be used as an excuse to subvert
the constitutional machinery and deny people right to elect their
representative. Not holding elections in case of threats by terrorists
will amount to giving in to the threats, which is in fact the aim of all
terrorist activities.

(M) That other excuse given by ECP relating to financial constraints is also not a
reason for delaying the elections inter alia because:

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

(ii) 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 a standstill without an
elected Parliament or Assembly. It is unfathomable that a
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.

(iii) It is the responsibility of the Federal and Provincial Governments to

arrange the funds for holding the elections on a priority basis to the
exclusion of all other matters and it is no excuse to postpone the
elections on the basis of financial constraints.

(iv) In fact if this excuse is allowed to be valid for the postponing of

elections, then the elections can be delayed indefinitely for this reason
 which would amount to subversion and usurpation of the
Constitution.

(v) It would be an indirect method of holding the Constitution in

abeyance.

(N) That ECP has made an excuse that the armed forces are involved in counter-
terrorism activities and cannot give the personnel to ECP on the date of
elections. Without going into the merits of this, it is respectfully submitted
that the armed forces may not be required to enforce law and order which is
the duty and obligation of the Federal and caretaker Provincial Government
through the police, and other personnel, as may be required. It is
incomprehensible that the Federal and Provincial Governments cannot
provide the security for the date of the election to be held in the Province of
Punjab. If such an excuse is accepted, then this would enable all election to
be delayed on this illegal pretext. In fact if this pretext is accepted, then even
the election to the National Assembly or Provincial Assemblies will not be
held when the tenure of the national assembly expires under the
Constitution. It is the duty and obligation of the Federal Government and
Provincial Governments to ensure that there is sufficient strength of police
and other security personnel available to ensure the law maintenance and
order situation. This have also been specifically so stated and decided in the
judgment of the Hon’ble Supreme Court of Pakistan.

(O) That it is evident from the bare perusal of Articles 218 and 254 cited by ECP
in the impugned order that ECP does not have the authority to amend the
Constitution nor the jurisdiction to announce the date of the election
themselves. Under the garb of Article 218, i.e., conducting free and fair
elections, ECP does not have the authority to set a date arbitrarily and at their
discretion, exceeding the time limit of 90 days mentioned in the Constitution,
especially 6 months into the future. Furthermore, Article 254, as decided by
the Supreme Court, is not pre-emptive or permissive. It does not give the
power or permission to ECP to postpone the elections. Rather, it allows only
for condonation in case, due to exigent circumstances arising on or about the
election day due to which the elections cannot be held on the appointed day,
to condone the delay as a result of the same.. Article 254, hence, is
retrospective. For example, if on the date of the elections an incident happens
which requires postponement of elections and then elections are held
thereafter, then Article 254 states that the delay will be condoned
retrospectively and the election will be valid. However, ECP sitting today
 cannot determine that under Article 254 ECP is entitled to preemptively
postpone the elections. Under such an interpretation, a Government can
thereby postpone elections indefinitely.

(P) That providing of funds, personnel and ensuring maintenance of law and
order for the election is the obligation of the state, executive and the
government, including the caretaker government in Punjab and they are
required to fulfil all the requirements as laid down in the judgement of the
Supreme Court dated 01.03.2023. ECP cannot hide behind this illegitimate
excuse to delay the elections nor can the Government refuse to fulfill their
obligations.

(Q) That the funds, whatever they may be for the elections, have to be provided
by the Federal and Provincial Governments because without elections the
Constitution itself cannot function. It is for the people to elect their
representatives to the Assembly who can then make laws and also form
governments. If no elections are held that would be a serious violation of the
Constitution.

(R) Without prejudice to the foregoing, ECP has attempted to justify its Order
that that is law and order situation, lack of funds and availability of security
personnel, to hold fair elections on 30-04-2023. It is submitted that ECP has
only reproduced their ‘versions’ in the Order dt.22-03-2023. No direction
has been given by ECP to the Federal Government to provide the requisite
support. ECP in fact has taken and accepted dictations and has not applied
its own mind to the directions of this Hon'ble Court.

(S) That under Article 224(2) of the Constitution, when the National or a
Provincial Assembly is dissolved, a general election to the Assembly is
mandatorily to be held within a period of ninety days after the dissolution
and the results of the election have to be declared not later than fourteen days
after the conclusion of the polls. Article 224 (2) of the Constitution reads as
follows:
“When the National Assembly or a Provincial
Assembly is dissolved, a general election to the
Assembly shall be held within a period of ninety days
after the dissolution, and the results of the election
shall be declared not later than fourteen days after the
conclusion of the polls.”

Furthermore, under Section 57 of the Election Act, 2017, the date of the
election has to be announced by the President in case the Assembly is not
dissolved by the Governor. Section 57(1) is reproduced below: -
 Notification of Election Programme.—(1) The President shall
announce the date or dates of the general elections after consultation with
the Commission.

In addition, under Article 220 of the Constitution, it is the duty of all

executive authorities in the Federal and Provincial Governments to assist
ECP in the discharge of its functions.

Accordingly, it is very clear from the above that no one can exercise
constitutional powers arbitrarily and in their own discreti0n when it comes
to holding of elections. ECP is not entitled to frustrate the entire electoral
system by postponing the elections to the Provincial Assembly on the basis
of such flimsy, unreasonable, and unconstitutional reasons.

(T) That Respondents No.1, and 5 are depriving the Petitioner (and all other
citizens of the two Provinces) of the fundamental right guaranteed under
Article 17 of the Constitution to contest and participate in elections. Unless
the date of the election is announced, the exercise of this right will be
frustrated.

(U) That ECP, by passing the impugned order, has held the Constitution in
abeyance, which cannot be allowed.

(V) That Article 220 of the Constitution mandates that it shall be the duty of all
executive authorities in the Federation and in the provinces to assist the ECP
in the discharge of its functions. Besides this Hon'ble Court Order dt.01-03-
2023, even before Lahore High Court, the Chief Secretary of the Punjab and
the Inspector General of Punjab committed that they will fully comply with
the directions of the ECP.

(W) That no holding election as mandated by Constitution is contrary to the

fundament rights, inter alia, of the electors, voters and general public of
Province of Punjab. This is solemn and crucial constitutional obligation of
ECP which it has failed to fulfil. Hence, the titled Petition in a matter of great
public importance to set aside the ECP Order dt.22-3-2023 and for direction
to hold the election on 30-04-2023 as already notified.

(X) That the titled Petition raises questions of public importance with reference
to the enforcement of fundamental rights conferred inter alia by Articles 9,
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.

(Y) The Petitioner reserves the right to raise further grounds when this Petition
is taken up for a hearing by this Hon’ble Court.

29. That given the attitude of the Respondents, it is prayed that it would be in the fitness
of things for this Hon’ble Court to grant a mandamus for the holding of timely
election. The fundamental right of citizens of Pakistan cannot be left to the whims
and caprices of other institutions whose only interest seems to be in obstructing and
denying the rights conferred by Article 17 of the Constitution.

PRAYER

In light of the foregoing, it is most respectfully prayed that this Hon’ble Court may

graciously be pleased to:

(i) Declare that the order dated 22.03.2023 of ECP is illegal, unconstitutional, void

ab initio and set aside the same;

(ii) Direct ECP to hold the elections to the Provincial Assembly of Punjab on the 30th

April, 2023 as announced and decided by the President of Pakistan in pursuance

of the judgement of this Hon’ble Court dated 01.03.2023 and the election

schedule dated 08.03.2023 already announced by ECP, and further direct ECP

to ensure that elections are held on that date;

(iii) Direct Respondents 2, 3 and 4 to assist ECP in the discharge of holding elections

to the Provincial Assembly of Punjab on 30th April, 2023 including the

provisions of funds, security, personnel and maintenance of law and order, as

may be required by ECP for holding the elections;

(iv) Direct Respondent No.5 to fix the date of elections to the KPK Assembly

forthwith;
Grant any other relief that may be deemed just and appropriate in the circumstances.

Petitioners
through

Drawn by Filed by

Syed Ali Zafar ………………………….

Advocate Supreme Court Advocate on Record

Barrister Gohar Khan

Advocate Supreme Court

Zahid Nawaz Cheema

Advocate Supreme Court

Certified
Certified that this is the first petition on the subject filed by the Petitioners before this
August Court.

…………………………………….
Advocate on Record
Supreme Court of Pakistan

Dated:
 BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

Constitutional Petition No. _____ of 2023

Mohammad Sibtain Khan and others

…Petitioners
Versus

Election Commission of Pakistan and others

…Respondents

Constitutional Petition under Article 184(3) of the Constitution of the

Islamic Republic of Pakistan, 1973

AFFIDAVIT OF FACTS

………………………….,
Advocate-on-Record
Supreme Court of Pakistan
Islamabad.

I, the above-named deponent, do hereby solemnly affirm and declare as under:-

1. That the facts as stated in the accompanying petition are true and correct to the
best of my knowledge and information.

2. That the said facts have been obtained from the perusal of the record as well as
from the filer of the petition.

Sworn at Islamabad on this ____ day of March, 2023.

DEPONENT
 BEFORE THE HONOURABLE SUPREME COURT OF PAKISTAN
(Original Jurisdiction)

Constitutional Petition No. _____ of 2023

Mohammad Sibtain Khan and others

…Petitioners
Versus

Election Commission of Pakistan and others

…Respondents

Constitutional Petition under Article 184(3) of the Constitution of the

Islamic Republic of Pakistan, 1973

AFFIDAVIT OF SERVICE

………………………….,
Advocate-on-Record
Supreme Court of Pakistan
Islamabad.

I, the above-named deponent, take oath and state as under: -

That I did serve the parties concerned notices of my having filed this petition in the
Supreme Court of Pakistan.

Sworn at Islamabad on this ____ day of March, 2023.

DEPONENT