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ELECTION COMMISSION OF PAKISTAN

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MR. SIKANDAR SULTAN RAJA, CHAIRMAN
MR. NISAR AHMED DURRANI, MEMBER
MR. SHAH MUHAMMAD JATOI, MEMBER
MR. BABAR HASSAN BHARWANA, MEMBER
MR. JUSTICE (R) IKRAM ULLAH KHAN, MEMBER
CASE No.F.06(36)/2024-LAW.III

Subject: WRIT PETITION NOS 353, 357,358,359 AND 360 /2024

BEFORE THE LAHORE HIGH COURT,BAHAWALPUR
BENCH

ON COMMISSIONS’S NOTICE

1. Muhammad Shahid, REC Bahawalpur

2. Muhammad Qayyum, DEC Bahawalpur
3. Muhammad Jaffar, AD Law, Bahawalpur
4. Returning Officers NA-168 Bahawalpur-V, NA-169 Rahim Yar Khan-I,
PP-245 Bahawalpur-I, PP-253 Bahawalpur-IX and PP-254 Bahawalpur-X

Date of hearing: 18-01-2024

ORDER
Sikandar Sultan Raja, Chairman- Brief background of the instant matter is that
subject writ petitions have been filed by the Contesting Candidates before the Honorable
Lahore High Court Bahawalpur Bench for change of election symbols already allotted to
them by the concerned Returning Officers. The Writ Petitions came up for hearing before
the Honorable Court on 16-01-2024 and the following order has been passed by the Court
in writ petition No. 353/2024/BWP;

“5. In this case, the symbol chosen by the petitioner/ candidate

i.e. “Charpai” is not chosen by any other candidate then it is
strange that Returning Officer is not ready to allot the same to the
petitioner. Election Commission of Pakistan as well as Returning
Officer are bound to follow the law but firstly they allocated the
symbol to the petitioner without getting his consent and now they are
reluctant to change the same, despite the fact that the desired symbol
of the petitioner is still available, hence, in this way Returning
Officer as well as Election Commission of Pakistan are violating the
law and not performing their duties in accordance with law.
6. In view of the above referred circumstances, let notices be
issued in the names of Chief Election Commissioner of Pakistan,
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Provincial Election Commissioner Punjab, District Returning

Officer Bahawalpur as well as Returning Officer PP-245-
Bahawalpur-I with the direction to appear in person. It is clarified
that if anyone of them failed to abide by this order, then the law will
take its own course.”

2. Similar orders were rendered by the Hon’ble Court in rest of the writ petitions.

3. On 17-01-2024 REC Bahawalpur along with DEC Bahawalpur, AD Law

Bahawalpur and concerned Returning Officers along with the Counsel for the
Commission appeared before the Honorable Court and informed the bench on query of
the court in respect of personal appearance of the Chief Election Commissioner and
Provincial Election Commissioner that due to ongoing crucial election activities of the
General Elections 2024, the CEC and PEC, Punjab could not approach the Court. The
Honorable Court passed the following order;

“Learned Law Officer has submitted revised Form-33 duly issued by the
Returning Officer whereby petitioner has been awarded his desired
symbol of “Charpai”. Said revised Form-33 is made part of the file as
‘Mark-A’. Returning Officer has forwarded this form to the Election
Commission of Pakistan for final approval/further order. Hence, Election
Commission of Pakistan is directed to positively consider the Form-33
and submit report within a period of 02-days. Relist thereafter.
4. The above mentioned Order dated 17-01-2024 was conveyed to the Commission
through Whatsapp by the REC Bahawalpur and AD Law, Bahawalpur. On receipt of the
Order the Commission decided to fix the matter for hearing with notices to the
abovementioned officers for appearance on 18-01-2024 along with their reports.

5. In compliance with the notices of the Commission following officers are present
along with their reports.

1. Muhammad Shahid REC Bahawalpur

2. Muhammad Qayyum DEC Bahawalpur
3. Muhammad Jaffar AD Law, Bahawalpur
4. Muhammad Naeem Sadiq Cheema Returning Officer NA-168
5. Muhammad Saqib Sarwat Returning Officer NA-169
6. Adeel Khan Returning Officer PP-254
7. Mian Muhammad Azher Javaid Returning Officer PP-253
8. Jam Aslam Returning Officer PP-245
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6. REC appeared in person and submitted his comprehensive report which is taken
on record. He also submitted his affidavit. District Election Commissioner Bahawalpur
and AD Law, Bahawalpur also supported the contention of the REC, Bahawalpur and
submitted their separate affidavits which are also taken on record. They also verbally
briefed the Commission of the proceedings of the Honorable Court. The Returning
Officers named above also briefed the Commission in detail and submitted their detailed
combined report. They have also informed the Commission that the writ petitioners did
not approach them for change of allotted symbols of their choice and they have mis-lead
the Hon’ble Lahore High Court Bahawalpur Bench.

7. We have heard the officers of the Commission and concerned Returning Officers
of the abovementioned constituencies and perused the available record.

8. Perusal of record reveals that the contesting candidates invoked the jurisdiction of
the Honorable High Court under Article 199 of the Constitution of Islamic Republic of
Pakistan (the Constitution) wherein they prayed for issuance of directions to the
Returning Officers concerned for change of symbols of their choice. As per
constituencies of the petitioners, they had approached the respective Returning Officers
for allotment of symbol of their choice but the Returning Officers declined their requests
and allotted symbols against their preference.

9. The Prayers of the petitioners in respect of their Writ Petitions mentioned above
are reproduced as under;

“Writ Petition No. 353 of 2024/BWP

Muhammad Ameer Hamza vs. ECP

The Returning Officer did not provide the opportunity to the petitioner and
without his consent and against his choice of "Charpai" at serial no. 56 of
Rule 162, allotted him the Symbol of "Gramophone". The petitioner in this
regard also made an application to the Election Commission and District
Returning Officer, but all in vain.

Writ Petition No. 357 of 2024/BWP

Raja Muhammad Salem Vs. ECP

It is, therefore, respectfully prayed that by accepting this petition, the

returning officer of constituency NA-169 RYK-1 may graciously be
directed to allocate symbol of Tower as per application of the petitioner
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which is available and was initially allocated to the petitioner in the

interest of justice.
Any other further relief which this Hon'ble court deems fit may please be
granted to the Petitioner.

Writ Petition No. 358 of 2024/BWP

Muhammad Asghar Vs. ECP

The Returning Officer did not provide the opportunity to the petitioner and
without his consent and against his choice of "Water Cooler" at serial no.
317 of Rule 162, allotted him the Symbol of "Harmonium". The petitioner
in this regard also made an application to the Election Commission and
District Returning Officer, but all in vain.

Writ Petition No. 359of 2024/BWP

Shafqat Shaheen Vs. ECP

The Returning Officer did not provide the opportunity to the petitioner and
without his consent and against his choice of "Water Cooler" at serial no.
317 of Rule 162, allotted him the Symbol of "Round Table". The petitioner
in this regard also made an application to the Election Commission and
District Returning Officer, but all in vain.

Writ Petition No. 360 of 2024/BWP

Muhammad Nabeel ur Rehman Vs. ECP

The Returning Officer did not provide the opportunity to the petitioner and
without his consent and against his choice of "Rocket" at serial no. 214 of
Rule 162, allotted him the Symbol of "Tooth-Brush". The petitioner in this
regard also made an application to the Election Commission and District
Returning Officer, but all in vain.

10. The Honorable High Court did not invite comments/ report from the Commission
and the Returning Officers and passed verbal directions on 16-01-2024, requiring them to
allot the symbols of their choice and submit revised Form 33. The Returning Officers
informed the Court that they cannot change the symbol without written order of the Court
as the Commission vide letter dated 16-01-2024 has directed them not to change the
symbol as printing of ballot papers has started and any change in the Form -33 will result
in delay of election in the constituency concerned. The Honorable Court without
affording opportunity of hearing to the Commission, passed an order on 16-01-2024
requiring the appearance of Chief Election Commissioner and Provincial Election
Commissioner Punjab without assigning any valid reasons for his order. The Honorable
Court has passed remarks against the Commission without attributing any failure on the
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part of the Commission particularly when the petitioners themselves have sought
issuance of a writ against the Returning Officers for allotment of symbol. It is worth
mentioning that the Election Commission is a Constitutional body constituted under
Article 218(2) of the Constitution. The Commission comprises of the Chief Election
Commissioner and four members. The Commission exercise powers and functions by the
decision of its majority in terms of Section 3 of the Elections Act, 2017 which is
reproduced below for the ease of reference

“(3) If, upon any matter requiring a decision of the Commission, there is
difference of opinion amongst its members, the opinion of the majority
shall prevail and the decision of the Commission shall be expressed in
terms of the opinion of the majority:
Provided that—
a) where the members attending the proceedings of the Commission
are four and they are equally divided in their opinion; or

b) where the members attending the proceedings of the Commission

are three and there is difference of opinion amongst them;
the matter shall be placed for decision before the full Commission,
comprising all its members.”

11. The Chief Election Commissioner or any of the Members of the Commission are
not entitled to decide matter individually after 18 th Constitutional Amendment. The
Honorable Supreme Court of Pakistan while dilating upon the role of the Commission in
AL-Jihad Trust case reported in PLD 1997 SC 84 has observed that;

“The elections have to be held strictly in accordance with law, justly,

fairly and honestly. The people who are responsible to arrange/organize
such elections, are bound under the Constitution and the law to be
impartial, neutral and honest to the greatest possible extent in the
discharge of their sacred duties. It has been emphasised by the
Constitution that corrupt practices are to be guarded against This is
indeed, a Herculean job to be done by the "Chief Election Commissioner'.
It cannot be said; that he is subordinate to any Authority while doing his
duties in holding free, fair and transparent elections which would, in turn,
give birth to a body/institution of the nation called "Parliament (Majlis-e-
Shoorah)".

12. Similarly the Honorable Supreme Court of Pakistan in the case title Worker Party
Case reported in PLD 2012 SC 681 has highlighted the Constitutional role of the
Commission. Relevant Observations are reproduced under;

“45. Furthermore, under Article 221 of the Constitution, the Commission, with
the approval of the President, is empowered to make rules providing for the
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appointment of its officers and servants. Similarly, under section 107 of ROPA,
the Commission may, with the approval of the President, make rules for carrying
out the purposes of this Act. These powers further reinforce the independence
with which the Commission is to exercise its powers. Such conclusions have
already been drawn and find support in the case of Sh. Rashid Ahmed v.
Federation of Pakistan (PLD 2010 SC 573) relevant paragraph there from is
reproduced hereunder:--

9. We have considered the above submissions and have also

gone through the material placed before us and the
relevant constitutional provisions. Part VIII of the Constitution
comprising Articles 213 to 226 related to "Elections". Article
213 reflects that Chief Election Commissioner in this part shall
be referred to as the Commissioner; whereas, Article 219(b)
provides that "the Commissioner shall be charged with the duty
of organizing and conducting election to the Senate or to fill
casual vacancies in a House or a Provincial Assembly". Thus it
is quite evident that the Constitution places upon the Chief
Election Commissioner an obligation to organize the election.
Article 220 of the Constitution provides that "it shall be the duty
of 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;
conceptually placing the position of Commissioner and Election
Commission upper most while discharge their functions
requiring the executive authority to assist; in other words "to
aid" the Commissioner and the Election Commission. In that
course, the executive authority shall have no option but, to
offer, unhesitatingly, its assistance to make the way for the
Commissioner or the Election Commission smoother rather
than to make it difficult; either to stop, postpone or slow down
their pace in the discharge of duties, in this case holding
election for seat to question. The provision of Article 220 of the
Constitution
also reflects to be in pari material with the provision of Article
190 of the Constitution according to which "all executive and
judicial authorities throughout Pakistan shall act in aid of
Supreme Court"; which hold the Supreme Court upper most in
the hierarchy of the judiciary for which the Constitution
envisages that its independence shall be fully secured. Thus, to
sum up, testing on the touchstone of afore-referred provisions of
Constitution, the net result that comes out is that the Chief
Election Commissioner and the Election Commission are
absolutely independent with exclusive jurisdiction while
performing duties within terms of Part-VIII of the Constitution
in which no interference is allowable by any of the parties
interested by resorting to any manner and mode, as was done in
the present case. All the concerned quarters, namely Federal
and Provincial Governments, the Law Enforcing Agencies as
well, are under an obligation to ensure that Chief Election
Commissioner/Election Commission function independently;
and see that they are properly strengthened enabling them to
discharge their constitutional commitments fairly, freely and
without any hindrance and pressure of whatsoever nature.
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It may therefore be said that there is no restriction on the

Commission to frame rules with the approval of President, to
ensure that the elections are conducted fairly, honestly, justly
and in accordance with law and that corrupt practices are
guarded against. Under Article 222, Majlis-e-Shoora
(Parliament), subject to the Constitution, is authorized to
promulgate laws for following purposes:--

(a) the allocation of seats in the National Assembly as required

by clauses (3) and (4) of Article 51;

(b) the delimitation of constituencies by the Election

Commission;

(c) the preparation of electoral rolls, the requirements as to

residence in a constituency, the determination of objections
pertaining to and the commencement of electoral rolls;

(d) the conduct of elections and election petitions; the decision

of doubts and disputes arising in connection with elections;

(e) matters relating to corrupt practices and other offences in

connection with elections; and

(f) all other matters necessary for the due constitution of the two
Houses and the Provincial Assemblies;

While the Majlis-e-Shoora may promulgate law to regulate the

same, any law which has the effect of abridging any of the
powers of the Commissioner or the Commission would not find
support in the law.

46. It is of utmost importance that the Election Commission executes its

functions and discharges its responsibilities effectively, efficiently and
in letter and in spirit. By declaring that the representatives of the
people "shall be elected by direct and free vote, in accordance with
law" in Article 51(6)(a), the Constitution identifies 'elections' as the
first and an
integral step in effectuating the aforesaid constitutional dictates. At
page 254 of the judgment given in the Al-Jehad Trust v. Federation of
Pakistan (PLD 1997 SC 84), this Court commented on the important
role of the Election Commission and observed that by fulfilling its
mandated duties and responsibilities, the Election Commission
essentially "give(s) birth to a body/institution of the nation, called
Parliament". The effective fulfilment and honest discharge of this
tremendous responsibility would lend greater legitimacy to an elected
democratic government and give effect to its constitutional mandate. It
is, therefore, imperative that the Election Commission employs its
extensive powers to regulate the election process. Any shortfall in the
discharge of its responsibilities would violate express dictates of our
Constitution; devastate the efficacy of our constitutional order and the
envisioned operation of the State. Therefore, in appropriate
circumstances, the Election Commission may be directed to fulfil its
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constitutional and legislative dictates by inter alia bringing all relevant

political practices into conformity with the Constitution and the law.”

13. In another case “Sheikh Rasheed Ahmed versus Federation of Pakistan” Reported
in PLD 2010 SC 573 has observed as under;

“9. We have considered the above submissions and have also gone
through the material placed before us and the relevant constitutional
provisions. Part VIII of the Constitution Comprising Articles 213 to 226
related to "Elections". Article 213 reflects that Chief Election
Commissioner in this part shall be referred to as the Commissioner;
whereas, Article 219(b) provides that "the Commissioner shall be charged
with the duty of organizing and conducting election to the Senate or to fill
casual vacancies in a House or a Provincial Assembly". Thus it is quite
evident that the Constitution places upon the Chief Election Commissioner
an obligation to organize the election. Article 220 of the Constitution
provides that "it shall be the duty of 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;
conceptually placing the position of Commissioner and Election
Commission upper most while discharge their functions requiring the
executive authority to assist; in other words "to aid" the Commissioner
and the Election Commission. In that course, the executive authority shall
have no option but, to offer, unhesitatingly, its assistance to make the way
for the Commissioner or the Election Commission smoother rather than to
make it difficult; either to stop, postpone or slow down their pace in the
discharge of duties, in this case holding election for seat to question. The
provision of Article 220 of the Constitution also reflects to be in pari
materia with the provision of Article 190 of the Constitution according to
which "all executive and judicial authorities throughout Pakistan shall act
in aid of Supreme Court"; which hold the Supreme Court upper most in
the hierarchy of the judiciary for which the Constitution envisages that
its independence shall be fully secured. Thus, to sum up, testing on the
touchstone of afore-referred provisions of Constitution, the net result
that comes out is that the Chief Election Commissioner and the Election
Commission are absolutely independent with exclusive jurisdiction while
performing duties within terms of Part-VIII of the Constitution in which
no interference is allowable by any of the parties interested by resorting
to any manner and mode, as was done in the present case. All the
concerned quarters, namely Federal and Provincial Governments, the
Law Enforcing Agencies as well, are under an obligation to ensure that
Chief Election Commissioner/Election Commission function
independently; and see that they are properly strengthened enabling
them to discharge their constitutional commitments fairly, freely and
without any hindrance and pressure of whatsoever nature.”

14. The Election Commission announced Poll Date on 8th February after a meeting
with the Honorable President of Pakistan in pursuance of the Order of the Honorable
Supreme Court and submitted a statement to this effect in the Apex Court. Thereafter, the
Commission undertook the exercise of delimitation and announced Election Programme
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on 15-12-2023. The Commission undertakes various steps before the poll date and the
Returning Officers as well as the Appellate Tribunals decide the matters as per time
frame provided in the Election Schedule. The Election Commission is cognizant of its
Constitutional duties and performs the same in timely manner. The remarks of the
Honorable Court are without any rhyme or reason. Therefore, the Commission has
decided to approach the Court by filing Civil Miscellaneous Application for expunction
of the remarks and in case of rejection of its request, it will approach the Higher Forum.
The Law wing of the ECP Secretariat is directed to ensure the filling of CMA and contact
the nominated Counsel of ECP immediately for its filling.

15. Regarding the order of the Honorable Court dated 17-01-2024, it is pertinent to
mention that Section 67 of the Elections Act, 2017 is clear that it is the mandate of the
Returning Officer(s) to allot Election Symbol to the Contesting Candidates. Section 67 is
reproduced for the ease of the reference;

“67. Contested election and allotment of symbols.—(1) If after

withdrawal, if any, there are more than one contesting candidates in the
constituency, the Returning Officer shall allot, subject to any direction of
the Commission, one of the prescribed symbols to each contesting
candidate.
(2) A candidate nominated by a political party at an election in any
constituency shall be allotted the symbol allocated by the Commission to
that political party under the provisions of Chapter XII and no other
symbol.
(3) A candidate not nominated by any political party (hereinafter called as
“independent candidate”) shall choose and shall be allotted one of the
symbols not allocated to any political party, in the following manner—
(a) where a symbol has been chosen by only one independent
candidate, that symbol shall be allotted to that candidate and to no
one else;

(b) if a symbol is chosen by more than one independent candidates

and one of them has previously been a Member of the National
Assembly or a Provincial Assembly, such symbol shall be allotted
to that former Member; and

(c) if more than one independent candidates have given preference for
the same symbol, that symbol shall be allotted by drawing of lots.

(4) No symbol shall be allotted to any candidate other than the prescribed
symbols.

(5) In every constituency where election is contested, different symbol

shall be allotted to each contesting candidate.”
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16. The date for allocation of symbol was 13-01-2024. The Commission is required to
print approximately 260 Million ballot papers and on account of various time bound
activities and timely conduct of General Election, the Commission decided and directed
the Returning Officers vide letter dated 16-01-2024 not to change of symbols to avoid
delay in the printing of ballot papers. The Commission had started the printing of ballot
papers from 14-01-2024 and till date ballot papers of different constituencies have been
completed.

17. In view of the foregoing discussion, the Commission considered the request of the
Writ Petitioners mentioned herein above for allotment of their election symbols. The
Commission in partial modification of the letter dated 16-01-2024, decides to refer the
matter for allotment of symbols to the concerned Returning Officers with the directions
to decide the same in accordance with Law.

(SIKANDAR SULTAN RAJA)

Chief Election Commissioner/
Chairman

NISAR AHMED DURRANI SHAH MUHAMMAD JATOI

Member Member

BABAR HASSAN BHARWANA JUSTICE (R) IKRAMULLAH KHAN

Member Member