PESHAWAR HIGH COURT PESHAWAR ORDER SHEET Date of Order or Proceedings ‘Order or other Proceedings with Signature of Judge or that of parties or counsel where necessary 2 03.01.2024 3 CM No. 2879-P/2023 in Writ Petition No. 6173-P/2023. Present: M/s Qazi Muhammad Anwar & Shah Faisal Utmankehl, Advocates, for the petitioner. M/s Sikandar Hashmat, Mohsin Kamran Siddi, Advocates alongwith Masood Sherwani, DG, Khurram Shahzad, ADG, Aziz Bahadar, JPEC (E/S), M. Amjid DD (Law) & Samran Jehangir, AD (Law) on behalf of respondent No.1. Mr. Naveed Akhtar, Advocate, for respondent No.12. MUHAMMAD IJAZ KHAN, J-, Through this order this Court intend to decide the instant application filed by The Election Commission of Pakistan (hereinafter referred as The ECP) who was respondent No.1 in the main writ petition for the recalling of the order of this Court dated 26.12.2023, whereby an interim relief was granted to the Tehreek-e-Insaf (hereinafter referred as the writ petitioner) whereby the order of the ECP dated 22.12.2023 was suspended with further direction to the Election Commission of Pakistan to publish the certificate on its website and restore the election symbol of PTI. 2. The Election Commission of Pakistan has now filedthe instant application with the prayer that the aforesaid interim order of this Court dated 26.12.2023 may be recalled. When this case was taken up for preliminary hearing on 02.01.2024, detailed arguments of learned counsel representing The ECP were heard, however, later in the day a request was made on behalf of the writ petitioner that the learned counsel representing it would not be available for today, therefore, the case was adjourned for today and today their detailed arguments were also heard. 3. Since this application was hotly contested by both the parties, therefore, a brief background of this case would be essential, which are that as per the directions of The Election Commission of Pakistan (ECP) dated 23.11.2022, the writ petitioner conducted its intra-party elections and thereafter it submitted the relevant documents to the Election Commission of Pakistan, however, soon thereafter the private respondents herein filed various petitions, challenging the validity and legality of the aforesaid intra-party election. Similarly, the Political Finance Wing of The Election Commission of Pakistan also raised various objections with respect to the election documents so submitted by the writ petitioner. The aforesaid petition and objections were taken, heard and decided vide a consolidated order of The Election3 [| Commission of Pakistan dated 22.12.2023, whereby it | was held that the writ petitioner has not conducted its intra-party elections in accordance with the provisions of The Election Act, 2017, The Rules framed thereunder, The Constitution of The PTI as well as against the earlier order of the ECP dated 23.11.2023 and consequently it was declared as ineligible to obtain the election symbol for which it has applied. The aforesaid order was then challenged by the writ petitioner before this Court through the instant writ petition and a prayer for interim relief to the effect to suspend the aforesaid order was also made. 4. Since due to the winter vacations a Divisional Bench of this Court was not available, therefore, to the extent of interim relief, the same was fixed & placed before a Single Bench on 26.12.2023 and on the same day the desired interim relief was granted to it. The Election Commission of Pakistan has now challenged the grant of the aforesaid interim relief to the writ petitioner at the stage of preliminary hearing and has prayed for re-calling of the said order through the instant application. 5. Detailed arguments of learned counsel for both the parties were heard. The main emphasis of the learned counsel for The ECP was; firstly that before passing such a sweeping interim order no opportunity of hearing was provided to it. Secondly, the interim relief so grantedamounts to the grant of final relief wt is not permissible under the law; and thirdly that the said interim relief has not been restricted to the Province of Khyber Pakhtunkhwa, but has made it applicable to the whole of the country, therefore, such interim relief at such a preliminary stage has created insurmountable hurdles to conduct the already scheduled election. As against this, learned counsel representing the writ petitioner argued that The ECP has travelled beyond its jurisdiction by refusing the election symbol to the writ petitioner, secondly that the writ petitioner has been subjected to discrimination as no other political party has been declared as ineligible for not holding intra-party elections in accordance with law, thirdly he maintain that even The ECP is not competent to file the instant application for the withdrawal of the interim relief and lastly he argued that in fact no inconvenience has caused to The ECP due to the passing of interim relief dated 26.12.2023. Leamed counsel representing respondent No.12 namely Naveed Akhtar Advocate also supported the stance of The ECP and requested that the said interim order has seriously prejudiced the guaranteed rights of respondent No.12. 6. Though all the learned counsels for the parties, during the course of arguments, raised substantial legal questions of law, however, the same could not beaddressed by this Court at this stage of the proceeding as the main writ petition is pending adjudication before this Court which shall be decided at an appropriate time, therefore, this Court would restrain to record any detail findings as such findings may cause prejudice to the case of either party, however, for the purpose of decision of the instant application suffice it to observe that the order of this Court dated 26.12.2023 is liable to be recalled for the reason; firstly that the said order was ad-interim ex-parte order as the same was passed without providing any opportunity of hearing to The Election Commission of Pakistan (ECP); secondly the said interim order, prima- facie amounts to the grant of final relief for all legal, factual and practical purposes; thirdly while passing the said order, an aspect of its effectiveness beyond the territorial jurisdiction of this Court was not taken into consideration; and fourthly as under the election laws the whole exercise of holding and conducting an election i.e. right from the issuance of notification of holding an election till the publications of names of the successful candidates in the official gazette, is a time bound exercise, therefore, the said order has prima facie created hindrance in the smooth process of the election which is to be conducted by The ECP as per the already notified schedule and which is to be held on the instant 8” ofFebruary. Z.__ In view of the above, the interim order of this Court passed in favour of the writ petitioner / PTI is hereby Tecalled / vacated and consequently the Election Commission of Pakistan is directed to proceed with the election process as per its constitutional mandate as well as various orders of the Hon'ble Supreme Court of Pakistan passed with respect to the ensuing election and it shall ensure to conduct and hold a free, fair and transparent election, whereas the grievance of the petitioner as agitated in the main writ petition is to be considered and finally adjudicated upon by this Court on the date fixed. Order accordingly. Announced 03.01.2024 JUDGE TRE TT