Rai Haider Ali Khan Vs Federation of Pakistan through Secty. Ministry of Parliamentary Affairs Govt. of Pakistan

IN THE PESIIAWARHI,GH COURT. PESHAWAR

TTUDIqIAL DEPARTMENT-

W.P IYo. 5799-P/2025 with IR

Rai Hoider Ali Khan Petitioner

Vs

Federation of Pokistan through Secretory Ministry of Parliamentary Alfoirs, Government of Pakistan, Islomabad and otherso o.. o.. o. o. oooo o o.. o. ,,Respondents oo o

Present: Syed Siknndar Hayat Shah, Advocate, for the petitioner.

Mn Sana Ullah, Additional Attorney General alongwith Khurram Shahzad, ADG (Law), Yasir Ali Raia, Director (Law), Ms. Saima Tariq Janiua, DD (Law), M. Amjad, DD (Law) and Samran Jahangir, AD (Law) Election Commission of Pakistan, Islamabad, for the respondents.

Date of hearing: 29,08.2025

4JUS\qNT

M[JHAMMAD.,.,H*ffi,',,,,KHA|LJ* Through the instant petitiotr, petitioner has challenged an order of the Election Commission of Pakistan (respondent No.3 herein), whereby the petitioner, who was an elected t?

Member, National Assembly, from NA-96 Faisalabad- U has been disqualified under Aticle 63 (1) (h) of The Constitution of Islamic Republic of Pakistan, 1973 on

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the basis of his conviction order dated 31.07 .2025 >i

passed by the Judge, Anti-Terrorism Court, Faisalabad.

2.Precisely, the facts leading to the filing of this petition are that the petitioner is a politician by profession and he contested the last General Election from NA-96 Faisalabad-Il and was elected as member of the National Assembly, however, latet on he was charged in case FIR No. 83512023 and on conclusion of his trial in the instant case, he was convicted and sentenced by the learned Judge, Anti-Terrorism Court, Faisalabad vide order and judgment dated 3 L 07 .2025.

It is further pleaded that on the basis of the aforesaid order of conviction by the Anti-Terrorism Court, Faisalabad, the Election Commission of Pakistan, Islamabad has de-notified him as Member of the National Assembly vide impugned order dated 25.08.2025, therefore, he has now approached to this Court for the desired relief.

3.'foday, when this case was taken up for hearing, .n7 learned counsel representing respondent No. 3 as well as Additional Attorney General at the very outset, came to the rostrum and raised a preliminary objection qua the territorial i urisdiction of this court and as such the learned counsel for the petitioner as well as learned

Additionat Attorney General alongwith learned Law Officers representing the respondents were heard in considerable detait on the said objection and the appended documents were also gone with their able assistance.

4.The objection as raised by the learned Additional Attorney General and the learned Law Offrcers representing the respondents was to the effect that since petitioner was an elected Member of the National Assembly from NA-96 Faisalabad-Il, and as such he is/was representing the people of his constituency, which entirely falls in the Province of Punjab. He further maintained that the petitioner has also been convicted by the Anti-Terrorism Court at Faisalabad, and then on the basis of the said conviction order, the Election Commission of Pakistan, at Islamabad has de- notified him vide impugned order dated 05.08.2025, therefore, it is either The Lahore High Court or at the most Islamabad High Court, who could assume jurisdiction in the instant matter.

5.In order to answer the aforesaid objection, it would be relevant to mention here that the establishment, co&$ilution and functions of various courts have provided by The Constitution of Pakistan

lgz3,as Article 175 of the constitution provides for the establishment and jurisdiction of Supreme Court of Pakistan, of the High Courts of each province and other courts. Furthermore Article 185 to Article 190 0f The Constitution provides for the establishment / functions / jurisdiction of the Supreme Court, whereas, Article 192 to Article 203 of The Constitution provides for the establishment, constitution and jurisdiction of the High Courts, whereas, Anicte 202'C to 203'J provides for the establishment, power and ftlnctions of the Federal Shariat Court. Out of the aforesaid Articles, Article 198 of The Constitution, 1973, provides for the establishment of five High Courts of the country, their benches as well as the territories over which such High Court or its benches shall have jurisdiction, whereunder, High Courts for the four provinces i.e.

Lahore High Court, The High Court of Sindh, Peshawar High Court and Balochistan High Court and their -ry respective benches are specifically mentioned and has also provided that these High Courts and their benches shall exercise their jurisdiction in the assigned area.

6.It would also be relevant to mention here that on the eve of the dissolution of the Province of West Pakistan under Article 4 of The Province of the West

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Pakistan Dissolution Order, 1970, The Presidential Order No. 8 of l97O was promulgated with the name of C o 0 where

Article 3 provides for the establishment of High Courts of provinces including for the province of Khyber Pakhtunkhwa (erstwhile NWFP). Article 3 of the said Order being relevant is reproduced below:=

3.Esfablish ment of High Courts for new Provinces; (1) As from the lst day of July 1970, hereinafter referred to as the appointed day, there shall be established the following new High Courts, namely:-

(a)a High Court for the North'West Frontier Province to Le. called the Peshawar High Court With its principal seat at Peshawar;

(b)a High Court for the Province of the Puniab and the lslamabad Capita! Territory to be called the Lahore High Court with its principal seat at Lahore; and

(c)a High Court for the Provinces of Baluchistan and Sind to be called the Sind and Baluchistan High Court with its principal seat at Karachi' (21 Each new Hioh Court be a Court of record eld shal! have such glimel, appellate and other iurisdiction and such powers and authority in respect of the territories for ich is it establisheC as the High Court of West Pakistan, immediately before the appointed d.y, had in respect of the territories in relation to which it .+ exercised appellate jurisdiction.

(3)Each new High Court and the Judges and divisional Courts thereof shall sit at its principal seat but may hold Circuit Courts at places within its territorial jurisdiction other than its principal seat consisting of such of the Judges of the High Court as the Chief Justice may from time to time nominate.

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The plain reading of the aforesaid Article would show that a High Court for the province of Khyber Pakhtunkhwa (Erstwhile NWFP) is to be established and the same is to be called The Peshawar High Court with its principal seat at Peshawar. Similarly, the same also provides for the establishment of the High Courts for the provinces of Punjab, Sindh and of Balochistan.

It also provides that each newly established High Court shall be a court of record and shall have such original, appellate and @ It also provides that these High Courts shall have powers and authority in respect of the territories for which they are established and thus, the jurisdiction of either of High Court, i.e. of Lahore High Court, Sindh High Court, Peshawar High Court and Balochistan High Court are restricted to their respective territories and as such none of them can interfere in the territory of another High Court. When seen with this constitutional and legal background, the objection of the learned counsel for the respondents a 0 carries legal weightage as frLsily the petitioner is resident of District Faisalabad, secondly he is an elected member of the National Assembly from NA-96 Faisalabad-ll, thirdly he was charged in a case FIR which was registered in Faisalabad and he has also

been tried and convicted by the Judge, Anti-Terrorism Court at Faisalabad and, fuuflhly on the basis of the said conviction, he has also been declared as disqualified and as such de-notified by the Election Commission of Pakistan at Islamabad, therefore, this Court (Peshawar High Court) which has territorial jurisdiction to the extent of boundaries of this Province could not assume jurisdiction in the instant matter.

7.It would also be not out of place to mention here that since the impugned order dated 05.08.2025 has passed by the Election Commission of Pakistan from its Principal Seat at Islamabad, therefore, the petitioner may by pressing the plea of concurrent jurisdiction, could approach to the Islam abad High Court, which has territorial domain over the Islamabad Capital Territory.

It would be essential and fair to clariff here that initially for necessary amendments in the Constitution with respect to Islamabad High Court, a Presidential Order No. 5 of 2007 was promulgated on 21.1 1 .2007 , r7 and then for establishment of the Islamabad High Court, another Presidential Order No. 7 of 2007 was promulgated on 14.12.2007 and then in the year 2010, all those amendments which were made in the Constitution through Presidential Order No. 5 of 2007

were inserted in the Constitution through 18th Constitutional Arnendment and thus, the plain reading of these legislative instruments would show that the territorial limits of Islamabad High Court have been described as Islarnabad Capital Territory (ICT) and the authorities functioning at Islamabad in connection with the affairs of Federation are the subject to the jurisdiction of the Islamabad High Court and as, in the present case, the impugned order dated 05.08.2025 has passed by the Election Commission from its Principal Seat at Islamabad, therefore, the petitioner may agitate the instant grievance before the Islamabad High Court but under no circumstances the same could be filed / instituted before this Court, on the basis of concept of concurrent jurisdiction.

8.During the course of arguments, learned counsel for the petitioner made reference to the judgments rendered in case titled "@.PS. The

Election Conlmission of Pakistan etc. (PLD 1968 SC a J-V), "Messrs Ali-Iblaph .rs. The

Cop.vrisht Board, Karachi and others (1985 SCMR ,,LPG ASS of Pakistan throush

Chairman .PS. Federation of Pakistan throush Secretarv. Ministrv of Petroleum and Natural

Resources Islamabad and I others (2009-CLD 14981 and an unreported judgment of this Court rendered in case bearing W.P.IIg. 6173-Pl2023 titled "Pakistan Tehreek-e-Insatr (PTI| .vs. Election Commission oc Pakistan and others" decided on 10.0I.2024 and stated that on the basis of ratio of these judgments, this Court can assume conculrent jurisdiction alongwith Lahore High Court in the instant matter, however, all these judgments as referred to by the learned counsel for the petitioner are with respect to the question of concurrent jurisdiction assumed by the Islamabad High Court or by the High Court of concerned Province, and in none of these judgments an issue akin to the present one has been resolved, whereby all effective and sweeping action(s) have taken place in a Province could be challenged before the High Court of another Province, therefore, these judgments are totally distinguishable and irrelevant for the present controversy.

g. During the course of arguments, we also ,y confronted learned counsel for the petitioner that since the provisions of The Civil Procedure Code, 1908 ("CPC') are applicable to the writ proceedings, therefore, whether, in view of Sections 15 to 20 of the CPC, any effective order has been passed within the

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jurisdiction of this Court or whether an actionable cause of action, wholly or partly, has arisen to the petitioner within the territorial limits of this Court or as to whether any of the respondent is stationed / resident of this Province, however, he was unable to wriggle out of the same and to give a satisfactory answer and thus even on the touchstone of the yardstick as provided by the CPC for regulating-cum-conferring jurisdiction on a Court of law, the filing and entertaining of the instant petition by this Court, would not be legally justified.

10.During the course of arguments, one of the submission of the learned counsel for the petitioner was that since other three identical writ petitions have already been enteftained by this Court with respect to the same impugned notification, therefore, this petition may also be entertained and clubbed with these earlier entertained and pending writ petitions, however, this submission of the learned counsel for the petitioner too is misconceived as, as far as writ petition No. 5Il7- v P12025 titled Sved Shibli Faraz .vs. Federation_gt Pakistan etc. and Writ Petition No. 5170-P12025 titled Omar Avub Khan, Ys. Federation of Pakist are concerned, since the writ petitioners therein are Members of the Parliament duly elected by the people

of this Province, therefore, prima facie their writ petitions (subject to the final adjudication) could be entertained by this Court, whereas the order sheet of Writ Petition No. 5602-P12025 titted Zartai Gul .vs' Federation o.f Pakistan etc. would show that on the date fixed no such objection qua territorial jurisdiction of this Court was raised by the respondents, however, even then, the said pelition was though clubbed with the earlier two writ petitions, but subject to the question of territoriat juris{iction of this court, which is to be addressed by the writ petitioner therein at the appropriate stage, therefore, this request of the petitioner too is misconceived.

11.It would not be out of place to mention here that since question ofjurisdiction is a fundamental question, which has to be addressed by a court of law to proceed with the lis filed/instituted before it as the legal authority of the court to entertain and adjudicate upon a controversy is directly linked with the question of jurisdiction of that court, which question ofjurisdiction -ty may be with respect to territorial, PocutrlilY, appellate, original or supervisory or mherent jurisdiction of that Court. It may be reiterated that the Court possesses only that jurisdiction, which has specifically and

clearly been conferred upon it by the Constitution or the law. It is also not out of place to mention here that a court cannot assume jurisdiction even with the consent of the parties, if it otherwise lacks the same, as in such a case if a judgement is rendered, the same would be coram-non-judice, without lawful authoriB and would be of no binding effect. The question ofjurisdiction has remained a contesting subject before the apex Court as well as before various High Courts of the country and as such, the apex Court in many judgments has clarified that how question of jurisdiction is to be determined amongst various High Courts and in this regard reference can be made to the judgment of a larger bench of the apex Court comprising of five Hon'ble Judges rendered in the casel where it has been held that in the Federal System, Federating Units are independent in their affairs and similarly the public functionaries and authorities as well as Courts or ,r Tribunals of exclusive jurisdiction conferred on them and powers vested in them by law and they can exercise such powers and jurisdiction within their respective territory. In the said judgment, the rule of propriety has also been dilated upon to the effect that | "Let. -Gen. (R) Salahuddin Tirmizi vs. Election Commission of Pakistan" (PLD 2008 Supreme Court 735)

even in a case where jurisdiction was assumed by the Islamabad High Court, but subsequently one of the party had approached to the Peshawar High Court and the subsequent conduct of the party to approach the Peshawar High Court was depreciated, Similarly, in another case2, the apex Court in paru 8 has observed that it has become a common practice to file a writ petition either at Peshawar or Lahore or Rawalpindi or Multan etc, to challenge an order of assessment passed at Karachi by adding a ground for impugning the notification under which a partrcular levy is imposed.

The said practice was depreciated, and it was declared that the Court has to see the dominant object of filing of the writ petition. In another case,3 it was observed that if the ultim ate relief sought relates to an act done or Droceedine taken within the ofa particUlAr High Court, then no other High Cou countrv assume and exercise iurisdiction.

Likewise, in a casea, the High Court dismissed the writ petition on the ground that the writ petitioner therein is 2 "sandalbar Enterprises eVD LTD vs. Central Board of Revenue and others" (PLD 1997 Supreme Court 334)

3 "Taufiq Astf and others ys. General (Retd.) Pervez Musharraf and others" (PLD 2024 Supreme Court 610)

4 "Aqeel Karim Dhedhi VS. National Accountability Bureau through Chairman and 3 others" (P L D 2015 Sindh I)

facing trial in the province of Punjab and as such, the same falls within the territorial jurisdiction of Lahore High Court. In the Attezaz Ahsan's cases, it has specifically been concluded that writ jurisdiction of the High Court is limited to its territory. Similarly, in Al- Jehad Trust's case6, dfl emphasis has been made on indepe-ndence and teritorial .jurisdiction of the High Court. In luliss Benaztr Bhutto's case7, it has agaln been held that the High Court's jurisdiction is tied to its territqrlr and has specifically been observed that the High Court can issue a writ only to the persons or authorities who have done any act or pass any order and who are residents/stationed within its territory.

9.In view of the above discussion and exposition of law on the strbject, we have reached to an irresistible conclusion that in the instant controversy, this Court lacks territorial jurisdiction, therefore, the objection as raised by the learned counsel for the respondents is v sustained and thus the office is directed to return the itrstant petitio.q_in_-Afi@1 to the petitioner for its presentation befbre an appropriate forum. 'fhe office is s "Federation of Pakistan ys. Aitezaz Ahsan and another" (PLD 1989 Supreme Court 6l)

6"AL-Jehad Trust through Raeesul Muj ahideen Habib-Ul-lYahabb-Ul-Khairi and others ys. Federation Of Pakistan and others" (PLD 1996 Supreme Court 324)

7 o'Miss Benazir Bhutto vs. Federation Of Pakistan and another" (PLD 1988 Supreme Court 416)

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further directetl to retain a photostate copy of this petition alongwith the appended documents for the office record.

Annqunged

JUI}CE

(t )

JUNGE

(D.B) Hon'ble Mr. lustice Wiqar Ahmed Hon'ble Mr. Justice Muhammad ljaz Khan Noor Shah