SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Bench - III:
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Athar Minallah

Civil Petition No.150 & 152 of 2024.

(Against the judgments of the Lahore High Court, Lahore
dated 16.01.2024, passed in W.Ps. No.2974 & 2994 of 2024)

Tahir Sadiq (in both cases)

… Petitioner
Versus
Faisal Ali, etc. (in both cases)
… Respondents

For the petitioner: Mr. Muhammad Shahzad Shaukat, ASC.

Ch. Akhtar Ali, AOR.

For the ECP: Mr. Muhammad Arshad, DG (Law).

Falak Sher, Consultant Law.

For the objector: Syed Azmat Ali Bokhari, ASC.

Mr. Faisal Ali, in person.

Date of hearing: 29 January 2024

JUDGMENT

Syed Mansoor Ali Shah, J.- Elections stand as a manifestation of the

collective will of a nation, reflecting the diverse voices and choices of its
citizens. In this democratic process, individuals exercise their right to
vote, contributing to the formation of a representative government. The
rights involved are not only of those participating in the elections but
also of the public. The courts, in their role as guardians of democracy
and fundamental rights, should approach electoral matters with
circumspection, ensuring that their interventions uphold the democratic
principles upon which the nation thrives and the fundamental rights of
citizens to contest elections and vote for the candidates of their choice.
‘The right to vote freely for the candidate of one’s choice is the essence of
a democratic society, and any restrictions on that right strike at the
heart of representative government.’1 The working of democracy depends
on whether the people can decide the fate of the elected form of
government. It depends on the choices that people make in different

1
Reynolds v Sims (1964) 377 U.S. 533.
C.P. No.150/2024, etc. 2

ways. This choice of people cannot be compromised, as their mandate in

elections changes the destinies of government. Through the electoral
process and voting, citizens participate in democracy. By voting, citizens
take part in the public affairs of the country. Thus, citizens by voting
enjoy their right to choose the composition of their government by
exercising their choice and ability to participate.2

2. ‘No right is more precious in a free country than that of having a

voice in the election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are illusory if
the right to vote is undermined.’3 The right to form or be a member of a
political party under Article 17(2) of our Constitution4 includes not only
the right to contest elections5 but also the right to vote6 for the candidate
of one’s choice. When viewed against the backdrop of the constitutional
value of ‘political justice’, Article 17(2) remains hollow unless it also
recognizes the right of citizens to choose their representatives fairly and
freely from amongst the candidates. The right of citizens to participate in
national elections as voters is the core of the democratic form of
government. This right is also an expression of the choice of the citizens,
which finds further support under Article 19 of the Constitution.7 In
exercise of these fundamental rights, citizens shape their destiny by
forming the government they want.

3. It is in this context of both the right of the candidates to contest

the election and the right of the voters to vote for the candidate of their
choice that the qualification and disqualification of a candidate become
material. The aim of prescribing qualifications and disqualifications for
candidacies to contest elections is to maintain the integrity and
effectiveness of the political process. They are designed to ensure that
individuals holding public office meet certain standards. In a well-
functioning democracy, the criteria for qualifications and
disqualifications are clearly defined, publicly known and uniformly
applied. Qualifications and disqualifications of a candidate for the
electoral process must therefore be clearly spelled out in the Constitution

2
Anoop Baranwal v. Union of India (2023) 6 SCC 161.
3
Wesberry v. Sanders (1964) 376 U.S. 1.
4
The Constitution of the Islamic Republic of Pakistan.
5
Javed Jabbar v. Federation of Pakistan PLD 2003 SC 955; Pakistan Muslim League (Q) v. Chief Executive of Islamic
Republic of Pakistan PLD 2002 SC 994; Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
6
Province of Sindh v. M.Q.M. PLD 2014 SC 531; Nasir Iqbal v. Federation of Pakistan PLD 2014 SC 72; Arshad
Mehmood v. Delimitation Authority PLD 2014 Lah 221.
7
Ibid.
C.P. No.150/2024, etc. 3

or the law. Otherwise, electoral laws must be interpreted in favour of

enfranchisement rather than disenfranchisement so that maximum
choice remains with the voters to elect their future leadership.8 With this
approach rooted in the high constitutional rights and values, the courts
are to deal with the matters of acceptance or rejection of the nomination
papers filed for contesting elections.

4. Briefly, the facts of the case are that the nomination paper of the
petitioner for the seat of a Member of the National Assembly from NA-49,
Attock-I, was rejected by the Returning Officer on 30 December 2023,
mainly on the ground that the petitioner was a ‘proclaimed offender’.
However, on appeals of the petitioner, the Appellate Tribunal accepted
his nomination paper, on 6 January 2024. Thereafter, the respondent
filed writ petitions before the Lahore High Court, which were decided vide
the impugned orders dated 16 January 2023, and the nomination paper
of the petitioner was once again rejected on the ground that the
petitioner was a proclaimed offender. Hence, these petitions.

5. We have heard the learned counsel for the petitioner and the
Election Commission of Pakistan (“ECP”) as well as the objector who
appeared in person and examined the record of the case.

6. Since the petitioner’s nomination paper has been rejected on the

ground of his being a proclaimed offender, we in the course of the
hearing asked the learned counsel for the ECP to show the order made
and the proclamation issued against the petitioner under Section 87 of
the Code of Criminal Procedure 1898 (“Cr.P.C.”) but he was unable to
refer to any such order and proclamation. We then called upon the
objector, who was present in court, to tell us the source of his objection.
He frankly submitted that some of his friends had mentioned it to him,
but he has no document to establish that the petitioner is a proclaimed
offender. Hence, there is nothing on the record that the petitioner is a
proclaimed offender. Needless to say, in the absence of proceedings taken
under Section 87, Cr.P.C, an accused cannot be said or treated to be a
proclaimed offender.9 Further, as the rule of declining discretionary
reliefs to a proclaimed offender is one of propriety when the same is
confronted with a right, it is the right, not the rule of propriety, that
prevails.10 It is also important to note that the disadvantage, if any, for

8
Parvez Elahi v. E.C.P. 2024 SCP 41.
9
Khan Mir v. Amal Sherin 1989 SCMR 1987.
10
Muhammad Shafi v. State 2016 SCMR 1593.
C.P. No.150/2024, etc. 4

being a proclaimed offender ordinarily relates only to the case in which a

person has been so proclaimed, and not to the other cases or matters
which have no nexus to that case. For instance, a proclaimed offender is
not disentitled to institute or defend a civil suit, or an appeal arising
therefrom, regarding his civil rights and obligations. The same is the
position with the civil right of a person to contest an election; in the
absence of any contrary provision in the Constitution or the Elections Act
2017 (“Act”), his status of being a proclaimed offender in a criminal case
does not affect his said right.11

7. The learned counsel for the ECP could not point out any provision
either in the Constitution or in the Act that empowers the Returning
Officers to reject the nomination papers of the candidates on the ground
of their being proclaimed offenders. Since there is no law that makes a
proclaimed offender disqualified from contesting election, the Returning
Officers, the Appellate Tribunals or the Courts cannot on their own
create such additional disqualification, without the backing of law.12 As
per the constitutional command of Article 4 of the Constitution, they all
are bound to treat every citizen in accordance with law and cannot
prevent or hinder a person from doing that which is not prohibited by
law.

8. Articles 62 and 63 of the Constitution read with Sections 231 and

232 of the Act provide for qualification and disqualification of a
candidate, which does not mention that a “proclaimed offender” is
disqualified from being elected or from being a member of Parliament.
The grounds provided for rejection of a nomination paper in Section 62(9)
of the Act also do not empower the Returning Officers to reject the
nomination paper of a candidate on the ground of his being a proclaimed
offender. Although no provision of the Act has been pointed out to us
that requires the necessary presence of the candidate during the
electoral process, we may observe that if there is any such provision, the
absence of the candidate may have its own consequences under that
provision, but his nomination paper cannot be rejected on such ground
unless the legislature so provides in Section 62(9) of the Act. Therefore,
the High Court is found to have made a legal error in rejecting the
petitioner's nomination paper on the ground of his being allegedly a
proclaimed offender. Because of the current stage in the electoral

11
We approve the similar view taken by a Division Bench of the Lahore High Court in Nawazish Ali v. E.C.P. 2018
CLC 1301.
12
Umar Aslam v. E.C.P. 2024 SCP 40.
C.P. No.150/2024, etc. 5

process, we allowed interim relief to the petitioner on 26 January 2024.

ECP shall be free to recover the expenses incurred in this case, if any,
from the objector.

9. In view of the above legal position, these petitions are converted

into appeals and the same are allowed. The impugned orders of the High
Court are set aside and the nomination paper of the petitioner for the
seat of a Member of the National Assembly from NA-49, Attock-I, stands
accepted. The ECP shall ensure that all the necessary steps to be taken
in the electoral process are completed forthwith so that the petitioner can
contest the election on the scheduled date for the said seat, without fail.

Judge

Judge

Islamabad,
29 January 2024.
Judge
Approved for reporting
Sadaqat