Judgement of Justice Mansoor Ali Shah in election matter of Punjab Provincial Assembly - Khalid Zafar & Associates

In respect of the issue in hand for conducting elections of Provincial Assembly of Punjab within 90 days two judges of the larger bench namely Mr. Justice Mansor Shah for himself and Justice Jamal Khan Mandokhail have given their verdict (the “Verdict”). The judges have declared SMC No. 1 of 2023 and the two Const. Petitions No. 1 & 2 of 2023 (the “Petitions”) under Article 184(3) of the Constitution as premature and do not constitue a fit case to be brought before Supreme Court at this point in time. Accordingly, the learned judges dismissed the aforementioned constitution petitions and dropped the suo motu proceedings.

It is noteworthy that Verdict is not made on the questions of law  which were under consideration in the Petitions including the question of conducting elections within 90 days from the date of dissolution of assemblies. The Petitions were dropped/dismissed on the technical grounds of discussing the issue of jurisdiction of Supreme Court in light of the precedents contained in Monzoor Ellahi Case1 and Benazir Bhotto2 Case which was subsequently followed in Farough Siddiqui3 case. The main points of the decision is based on the principles explained as follows: 

  1. The first point is that if there are two forums and a petitioner elects to invoke the jurisdiction of one of the forum then he shall be bound by his choice of forum.
  2. The second point is that since a petition of the same facts is lying in the High Court, and the appeal of the pending petition would lie in the Supreme Court (where the Petitions are pending) therefore, entertaining the Petitions in presence of pending petitions in High Court would deprive one of the parties of his right of appeal. In the opinion of judges the independence of apex provincial constitutional court of a province should not be readily interfered by the Supreme Court but rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.
  3. The third point is the principle of inconvenient forum. The principle of forum non conveniens is a legal doctrine from common law jurisdiction that allows a Court to decline its jurisdiction over a case if it determines that another Court would be more appropriate or convenient for the parties involved. In the opinion of learned judges since the matter of dissolution and elections of Punjab Assembly is a provincial matter; and a High Court of a province is the highest constitutional court of that Province which is conferred with the jurisdiction under Article 199 of the Constitution to review the acts and proceedings within its territorial jurisdiction therefore, the most convenient and appropriate forum should be the concerned High Court.

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References:

  1.   Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66
  2.  Benazir  Bhutto   v.  Federation of Pakistan (PLD  1988  SC  416 )
  3.  Farough Siddiqi v. Province of Sindh 1994 SCMR 2111.

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