ISLAMABAD, Apr 03 (APP): The federal government on Monday filed a petition in the Supreme Court seeking the reconstitution of the bench hearing the election case.
A three-member SC bench comprising Chief Justice Umar Ata Bandial, Justice Munib Akhtar and Justice Ijaz ul Ahsan resumed the hearing of the case.
During the course of proceedings, Pakistan Tehreek-e-Insaf (PTI) leader Fawad Chaudhry appeared before the bench and complained to the chief justice about the strict arrangements for the red zone entry.
He pleaded with the court to take notice of the matter.
The Chief Justice rejected Fawad Chaudhry’s request to open entry routes to the Red Zone. He said that the administration was taking necessary steps to maintain law and order. It was not necessary for lawyers to come in large numbers for the case, he added.
Earlier, Attorney General for Pakistan (AGP) Mansoor Usman Awan filed a miscellaneous plea in the court ahead of the scheduled hearing of the suo motu as well as the Pakistan Tehreek-e-Insaf’s (PTI) petition challenging the order of the Election Commission of Pakistan (ECP) for postponing the Punjab election to October 8.
The AGP requested the court to dismiss the election delay case in view of the majority (4-3) order and judgment of March 01.
He stated that the proceedings in the instant petition should be postponed in light of the order passed by Justice Qazi Faez Isa. “This Hon’ble Bench, in view of submissions made in paragraphs 11 and 12, may graciously recuse from hearing the instant petition and a bench comprising of all remaining Hon’ble Judges of this court, who did not hear SMC No. 1/2023, CPs No 1 and 2 of 2023, may kindly be constituted to decide the questions raised herein,” it added.
The petition further stated, “A three-member Bench has, vide order dated 29-03-2023 passed in SMC No. 4/2023, held that hearing in all matters proceeding under Article 184(3) be postponed till such time, the issues/legal questions highlighted in the aforesaid order are adequately addressed under Article 191 of the Constitution. At the time, the aforesaid order was passed, the proceedings in the instant Petition were continuing. However, through an administrative circular dated 31-03-2023, the aforesaid judicial order was overruled. A judicial order or judgment, if it is contrary to any law or a binding precedent, can only be overruled or disregarded by declaring it per incuriam. This can only be done through another judicial order by a Bench of higher strength.
Keeping in view the principle of horizontal precedent “It is respectfully submitted that the circular dated 31-03-2023 is illegal, unlawful and undermines the integrity of the justice system. An administrative officer of this Court cannot disregard a judicial order passed by this Court. If this practice is allowed, it will lead to extremely dangerous consequences where any executive functionary can disregard this Court’s order based on his/her understanding of the judgment,” it added.
The petition stated that it was respectfully submitted that the instant Petition was a follow-up of SMC No. 1/2023 and CPs No. 1 and 2 of 2023.
The President had appointed 30-04-2023 as the date for general elections to the Provincial Assembly of Punjab under a mistaken understanding/reading of the judgment dated 01-03-2023. Justice Ijaz ul Ahsan had graciously recused himself from the aforesaid matters, having already disclosed his mind while taking suo motu notice in C.P No.3988 of 2022 titled Ghulam Mehmood Dogar v. Federation of Pakistan, etc. Therefore, for the same reasons, he may graciously consider recusing from hearing the instant Petition, to meet the ends of justice.
It stated that the Chief Justice and Justice Munib Akhtar were among the three members who had allowed the CPs No. 1 and 2 of 2023 and SMC No. 1/2023. Since, the question of the primacy/applicability order/judgment dated 01-03-2023 by the three members (Chief Justice, Justice Munib Akhtar, and Justice Muhammad Ali Mazhar) vis-à-vis the orders/judgments rendered by four members (Justice Syed Mansoor Ali Shah, Justice Yayha Afridi, Justice Jamal Khan Mandokhel and Justice Ather Minallah) had arisen, therefore, it would be in the fitness of things that the Chief Justice and Justice Munib Akhtar should also kindly recuse themselves from hearing the instant Petition.
“The President is not empowered to appoint the date for holding general elections to the Provincial Assembly of Punjab nor is the Governor; Khyber Pakhtunkhwa required to give the date for general elections to the Provincial Assembly of Punjab. Resultantly, the ECP order dated 22-03-2023 cannot be questioned in the instant proceedings. As a result, the instant petition is liable to be dismissed,” it added.
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