ISLAMABAD: The Supreme Court has ruled that Article 63A of the Constitution does not explicitly entrust the Commission with the power to determine the preliminary state of facts— jurisdictional facts— on which its jurisdiction to confirm the declaration depends.
A three-judge bench, headed by Justice Syed Mansoor Ali Shah, and comprising Justice Ayesha A Malik and Justice Aqeel Ahmed Abbasi on Monday released the judgment of their short order passed on December 12, 2024. Justice Ayesha wrote additional note.
Adil Khan Bazai had contested general elections 2024 from NA-262, Quetta-I. He won the polls by securing 20,278 votes as an independent candidate. On 18 February 2024, a letter was submitted to the Commission by Muhammad Shehbaz Sharif, the then president of Pakistan Muslim League-Nawaz (PML-N), under Rule 92(6) of the Election Rules 2017, informing the Commission that the appellant had joined PML-N through a consent affidavit dated 16 February 2024; whereas, on 20 February 2024, a similar letter was submitted to the Commission by Sahibzada Muhammad Hamid Raza, the chairman of the Sunni Ittehad Council (“SIC”), notifying the Commission that the appellant had joined SIC through a consent affidavit dated 20 February 2024.
The Election Commission of Pakistan (ECP) had accepted the stance of the Party Head of PML-N and concluded that, after being elected as an independent candidate, the appellant joined PML-N on 16 February 2024. It held that the appellant acted contrary to the directions issued by the parliamentary party of PML-N by abstaining from voting on the Finance Bill 2024 and the 26th Constitutional Amendment Bill. Consequently, the commission confirmed the declarations made by the party head of PML-N and pronounced that the appellant had ceased to be a member of the National Assembly and that his seat had become vacant.
The court set aside the impugned orders passed by the commission, and the declarations made by the party head of PML-N that the appellant had defected from the said political party are not confirmed. Accordingly, the appellant’s membership of the National Assembly from seat NA-262 stands restored as an independent member, not as a member of the parliamentary party of PML-N.
The commission has no power to conclusively determine jurisdictional facts but has only the power to objectively ascertain the existence of jurisdictional facts before exercising the jurisdiction conferred upon it under clauses (3) and (4) of Article 63A of the Constitution, for the purpose of determining the alleged defection of a member from his political party. Its finding on a jurisdictional fact, such as whether the member concerned belongs to the parliamentary party of a political party, is not conclusive; rather, it is subject to correction by this court, as its appellate forum, and ultimately to final determination by a Civil Court of plenary jurisdiction.
The judgment said that the party head of PML-N has failed to demonstrate a single instance where the appellant acted as a member of PML-N’s parliamentary party in the National Assembly.
It noted that since the appellant is not found to be a member of PML-N’s parliamentary party, the declarations made by the party head of PML-N regarding the appellant’s defection from that party, and the confirmation thereof by the Commission through the impugned orders, were without jurisdiction.
The Court clarified that the finding of this Court regarding the genuineness and validity of the consent affidavit dated 16 February 2024, as explained above, is subject to final determination by the Civil Court. Given the seriousness of the appellant’s allegations regarding the fabrication and use of a false consent affidavit against Shehbaz Sharif, the then president of PML-N and now the prime minister of Pakistan, we expect that the Civil Court, where the civil suit is subjudice, and the magistrate, before whom the criminal complaint is pending adjudication, shall decide the same as early as possible.
Copyright Business Recorder, 2025
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