KHUSHAL KHAN KAKAR Versus ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission of Pakistan Secretariat, Constitution Avenue G-5/2 Islamabad
ORDER
SHAUKAT ALI RAKHSHANI, J.--- The petitioner, Khushal Khan Kakar a contestant for the seat of NA-251 by means of instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ( Constitution ), has called in question the veracity and legality of Order dated 05.06.2025 ( impugned Order ) authored by Election Commission of Pakistan ( ECP ), whereby the application filed by respondent No.2 (retruned candidate) under section 151 of the Election Act, 2017 ( Act of 2017 ) was accepted and Election Petition No.33 of 2024 was transferred from the Election Tribunal-III to the Election Tribunal-II.
2. Unfurled facts, relevant for disposal of the lis in hand are that the petitioner and respondent No.2 contested the General Election, 2024 for the seat of National Assemly i.e., NA-251 Sherani-Cum-Zhob-Cum-Qilla Saifullah, however on count Respondent No.2 was declared as returned candidate from NA-251 with a margin of 93 votes, whilst securing 46,117 votes, whereas 46,210 votes were polled in favour of the petitioner, who being dissatisfied from Form-45 of 22 disputed polling stations, opted to file an election petition before the Election Tribunal-III, Balochistan Quetta ( Tribunal ), which was contested by respondent No.2 vigorously on factual and legal assertions incorporated in the written statement.
In the meanwhile, the petitioner filed a CMA bearing No.444 of 2024 for recocunting the votes of 22 polling stations, but subsequently withdrew the said applicaton, however the Tribunal vide order dated 22.05.2025 on its own so as to resolve the factual controvery directed the Returning Officer to recount the votes of 22 polling stations.
3. Respondent No.2 being aggrieved from the order dated 22.05.2025 approached the ECP by filing petition under section 151 of the Act of 2017 for transfer of Election Petition No.33 of 2024 from Election Tribunal-III to any other Election Tribunal, which was accepted vide impugned order dated 05.06.2025 and the Election Petition was transferred to Election Tribunal-II, hence this petition.
4. Learned counsel for the petitioner inter alia contended that the impugned Order is illegal, arbitrary and contrary to settled principles of law. He maintained that under Article 225 of the Constitution read with sections 141 and 148 of the Act of 2017, the Tribunal is vested with the powers of a Civil Court under the Code of Civil Procedure, 1908 ( C.P.C. ), however, the ECP has failed to consider such aspect and unlawfully interfered in the proceedings that were already within the exclusive domain of the Tribunal. According to him, the impugned order has been rendered solely on the basis of an unsubstantiated allegation of bias, which being a mere apprehension of respondent No.2, cannot be termed a valid ground. He argued that the impugned order was passed in haste as the evidence of both the adversarial parties had already been recorded and the case was riped for adjudication, thus, transferring the petition at this belated stage amounts to throttling of justice, henceforth request was made for setting at naught the impugned Order dated 05.06.2025. He relied upon the judgments reported as PLD 2008 Supreme Court 735, 2022 CLC 2072 Lahore, 2018 YLR 550 Lahore, PLD 2002 SC 446 and 1992 SCMR 1362 .
Conversely, learned counsel for respondent No.2 while supporting the impugned order argued that the ECP being the custodian of fair and transparent elections, rightly exercised its jurisdiction under section 151 of the Act of 2017 by transferring the election petition. He argued that the CMA for recounting the votes had already been withdrawn by the petitioner, but the Tribunal while acting suo motu again directed to recount, thereby giving rise to an element of bias and prejudicing the respondent s right to a fair hearing. He maintained that the constitutional petition is not maintainable as this court lacks territorial jurisdiction on the ground that the impugned order has been passed by the ECP in Islamabad and that the petition ought to have been filed before the Islamabad High Court, thus prayed for dismissal of the instant petition. He referred the judgment reported as 2015 SCMR 233 .
Mr. Shehzad Aslam Assistant Director Legal ECP while supporting the impugned order dated 05.06.2025 submitted that the ECP has the jurisdiction under section 151 of the Act of 2017 to transfer a matter pending before the Election Tribunal at any stage. He also maintained that the transfer has not been made on the ground of bias but on the other grounds mentioned in the impugned order, thus, prayed to maintain the order impugned.
5. Heard. Record scanned cover to cover with the able assistance of learned counsel for the adversarial parties.
6. Out of the argument advanced by both the ends, the first and foremost question which cropped up was the question of maintainbility of the instant constitution petition, revolving on two counts. Firstly, whether the petition is barred under Aticle 225 of the constitution and secondly that since the ECP has rendered the impugned order of transfer at Islamabbad, therefore, this Court ceases the territorial jurisdiction or both the high courts have concurrent jurisdiction.
7. In order to dilate upon the controversy in hand, it would be appropriate to understand the import of the Article 225 of the Constitution, which reads as under;
225. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of 1[Majlis-e-Shoora (Parliament).
8. Article 225 of the Constitution enunciates a specific mechanism for resolving election disputes through election petitions before designated tribunals, however High Courts retain limited jurisdiction under Article 199 to intervene in cases where the ECP or an election tribunal acts without lawful authority, with mala fide intent, or in violation of fundamental rights, but subject to an exception that where no legal remedy is available to an aggrieved party. The Supreme Court in the case of Benazir Bhutto v. Federation of Pakistan (PLD 1988 SC 416) emphasized that election disputes must be resolved through election petitions before the designated tribunal, however, judicial review under Article 199 of Constitution in not entirely ousted, more particularly, if there is a breach of fundamental right. Likewise, in the case of Aftab Shahban Mirani v. Muhammad Ibrahim (PLD 2008 Supreme Court 779) , the core issue before the apex Court was whether a petition under Article 199 of the Constitution is maintainable, even after Election Tribunal has been constitutied and the opinion was in affirmative and it was held that High Court, no doubt can set aside any order passed by Election Commission, if it comes to the conclusion that order was illegal. The Supreme Court in case of Election Commission v. Javed Hashmi (PLD 1989 SC 396) held that Article 225 does not constitute an absolute bar to the exercise of writ jurisdiction, particularly where the matter does not directly pertain to the validity of an election result but rather involves the fairness or legality of the process or proceedings. As such, we are of the considered thought that the High Court in such like case has the power to exercise jurisdiction as contemplated under Article 199 of the Constitution.
9. As far as the objection regarding the territorial jurisdiction of this Court is concerned, suffice is to observe that the ECP is a Federal constitutional body established under Article 218 of the Constitution, having its principal seat at Islamabad and branches at provincial capitals. It functions and duties flow out of the constitution and are also contained in the Act of 2017. It is a well-settled principle of law that where a federal authority performs an act that affects rights within the territorial limits of a Province, the respective High Court is vested with jurisdiction under Article 199 of the Constitution to exercise judicial review.
In the present case, the impugned order of the ECP has direct bearing on the proceedings pending before the Election Tribunal-III, Quetta, which squarely falls within the territorial jurisdiction of this Court, henceforth the objection raised as to the jurisdiction is misconceived, and this Court is fully competent to adjudicate upon the matter.
10. Similarly, the apex Court has consistently held that in matter concerning federal instrumentalities, the High Courts enjoys concurrent jurisdiction, as the cause of action may partly arise within more than one territorial jurisdiciotn. In this regard we are fortified with the view expounded in the case of Let. Gen. (R) Salahuddin Tirmizi v. Election Commission of Pakistan (PLD 2008 Supreme Court 735) . For ease of reference relevant excerpt of para No.27 of Let. Gen. (R) Salahuddin Tirmizi s case is reproduced hereunder;
27 . It may be pointed out that in the light of principle laid down by this Court regarding the exercise of jurisdiction in such situation, the order passed by the Election Commission of Pakistan which functions at Islamabad in respect of the constituency of Province of N.-W.F.P., would be challengeable both before the Islamabad High Court and Peshawar High Court. This concurrent jurisdiction is, however, subject to the rule of propriety according to which a High Court having jurisdiction in a matter if has exercised such jurisdiction, the other High Court which has also jurisdiction in the matter may restrain from exercising its jurisdiction. In view thereof, in the present case, the propriety demanded that subsequent order passed by Election Commission of Pakistan should have been challenged before the Islamabad High Court and the jurisdiction of Peshawar High Court should have not been invoked and said High Court also should not, without determining the question of propriety exercise the jurisdiction. Be that as it may, initially the respondent invoked the jurisdiction of Islamabad High Court against the order of Election Commission of Pakistan and subsequently, the order passed by Election Commission of Pakistan in post remand proceedings was challenged by the petitioner before the Peshawar High Court and question of jurisdiction was neither raised before Islamabad High Court nor before Peshawar High Court and since both the Courts have concurrent jurisdiction, therefore, the orders of Islamabad High Court as well as Peshawar High Court have been passed in exercise of lawful authority and objection in this behalf may have no significance.
(Emphasis added)
11. The conclusion drawn from the above discussion and the referred judgments of the Supreme Court, is that the action of ECP is amenable to judicial review of the High Court under Article 199 of the Constitiion and that this court has ample jurisdiction to adjudicate the petition in hand, subject to limitation that this Court cannot go into factual inquiry or substitute its own opinion on any question of fact.
12. Now adverting to the merits of the case, bare persual of transfer application of respondent No.2 shows that respondent No.2 has made an allegation of bias against the Tribunal.
13. Before turning into the allegations concerning the alleged bias of the Tribunal, it would be appropriate to understand the meaning and legal connotation of the word bias in the context of a judge and adjudicating authority.
The word biased, according to Oxford English Dictionary, means;
Having a tendency to show favour towards or against one group of people or one opinion for personal reasons; making unfair judgements.
Similarly, the term judicial bias, according to Black s Law Dictionary is defined as;
A judge s bias toward one or more of the parties to a case over which the judge preside.
14. The term bias generally refers to a situation where a judge or adjudicating authority is influenced by personal interest, prejudice or favoritism that may compromise the impartiality of the decision-making process. The principle is rooted in the doctrine of Nemo Judex in causa sua (no one should be a judge in their own cause) and that justice must not only be done, but must also be seen to be done. The apex court, in the case of Asif Ali Zardari v. The State (PLD 2001 SC 568) , while elaborating the connotation of word bias has made reference to the definition incorporated in Corpus Juris Secundum , Volume X and observed that bias has been described to be synonymous with the word partiality and strictly to be distinguished from the word prejudice and that it is a condition of a mind and has been held to refer, not to the views entertained regarding a particular subject-matter, but to the mental attitude or disposition toward a particular person and to cover all varieties of personal hostility or prejudice. In the judgment ibid, it was held that bias is said to be of three different kinds, which for ease of reference are reproduced herein below;
(a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest.
A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.
(b) Pecuniary interest in the cause, however, slight, will disqualify the Judge, even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges the decision is vitiated.
(c) A Judge may have a personal bias towards a party owing to relationship and the like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is - "Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?" The test is whether there is a 'real likelihood of prejudice', but it does not require certainty." 'Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or 'capricious persons."
Likewise, the Supreme Court of Pakistan in the case of All Pakistan Newspaper Society v. Federation of Pakistan (PLD 2012 SC 1) , further reiterated the dictum supra as expounded in Asif Zardari s case.
15. The foremost ground of bias that prevailed upon the ECP for transfer of the case was that after withdrawal of CMA bearing No. 444 of 2024, the learned Presiding Officer directed for recount of the votes on his own, showing his partiality, causing prejudice to his case. Undeniably, it is a trite law by now that the bias must be established with a cogent evidence and mere apprehension, suspicion, or adverse orders do not constitute bias. In the instant case, while unfolding and sussing out the entire record, we could not find any particular act, which could persuade us to belive that learned Presiding Officer of the Tribunal was bias towards respondent No.2.
16. In Asif Ali Zardari s case (PLD 2001 SC 568) , it has categocially been held that bias mainly can be of three kinds, firstly when the judge is himself a party or has direct connection with the litigation, secondly if there is any pecunerily interest of the judge in the cause, however slight, will be disqualified and lastly in case where a judge is in a reliationship or may be personally hostile to a party. After trashing out the entire record, we believe that respondent No.2 failed to establish any of the ground referred to herein above, thus, on mere choice, wishes or apprehencion of respondent No.2, the case cannot be transferred, more particularly, when trying to establish a bias, while attacking a judicial order, which merges into the final judgment, ameanable before the apex Court.
17. As far as the allegation concerning the Tribunal s order for recounting of votes after the withdrawal of the CMA by the petitioner is concerned, it would not be fair to comment on the merits of the order of recounting of votes as it may prejudice the case of both the sides, however it may be observed that the said order, by itself does not give rise to any presumption of bias.
18. In view of the above, we believe that the ECP erred in law and facts, while handing down the impugned order as mere allegation, conjuctures or subjective preceptions are insufficient to establish bias, rather the reasons for transfer must be grounded incredible, which is not the case, thus, the impugned order is unsustainable under the law.
19. The citiation refered by learned counsel for respondent No.2 is distinguishable, which renders no help to his stance.
20. For the foregoing reasons, the petition is allowed and consequent thereto, the impugned Order dated 05.06.2025 rendered by the ECP is set at naught for being without any legal justification and shorn of merits, thus, declared null and void, having no legal effect, and the case stands transferred back to Election Tribunal III from the file of Election Tribunal II, which shall proceed with the election petition in accordance with the law.
The parties shall bear the expenses of the lis on their own.
MH/121/Bal Petition allowed.