IN THE SUPREME COURT OF PAKISTAN 
  
 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
 
MR. JUSTICE SH. AZMAT SAEED 
 
MR. JUSTICE MUSHIR ALAM 
 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
 
 
 
CIVIL PETITION NO.3131 OF 2017 
(On 
appeal 
from 
judgment 
dated 
15.8.2017, passed by the Peshawar High 
Court, Peshawar, in W.P. No.1687-P of 
 2017) 
 
Sher Alam Khan 
 
… Petitioner (s) 
Versus 
Abdul Munim and others 
 
… Respondent (s) 
 
 
For the Petitioner (s) 
: Mr. Muhammad Akram Sheikh,  
Sr. ASC and  
Mr. M.S. Khattak, AOR 
 
  
For Respondent No.1 : S. Naeem Bokhari, Sr. ASC with 
Ch. Akhtar Ali, AOR 
 
  
For Respondent No.2 : Barrister Qasim Wadood,  
Addl. Advocate General, KPK 
 
  
On Court’s Notice 
: Rai M. Khan, D.E.O., Kohistan 
Mr. Aftab Ali, Accounts Officer,  
A.G. Office, KPK 
Mr. M. Ibrahim,  
Asstt. Accounts Officer,  
A.G. Office, KPK 
Abdul Maroof, 
Circle Officer, Anti-Corruption 
M. Jamil, ACO, Dassu Kohistan 
 
  
On Court’s Notice on 
behalf of Federation 
: Mr. Sajid Ilyas Bhatti, DAG 
 
  
Other Respondents 
: N.R. 
 
  
Date of Hearing 
: 23.02.2018 
CP.3131/2017 
2 
JUDGMENT 
 
 
 
 
  
   
 
SH. AZMAT SAEED, J.- This Civil Petition 
for Leave to Appeal is directed against the judgment 
dated 15.08.2017 of the learned Peshawar High 
Court, whereby Constitutional Petition i.e. Writ 
Petition bearing No.1687-P of 2017, filed by 
Respondent No.1, was allowed.  
2. 
 
The brief facts necessary for adjudication 
of the lis at hand are that Respondent No.1 
contested the election for the Provincial Assembly of 
the Province of Khyber Pakhtunkhaw (KPK) from 
the Constituency PK-88, Shangla-II in the General 
Elections held on 11th May, 2013. The said 
Respondent No.1 was declared elected and notified 
as 
a 
Returned 
Candidate 
by 
the 
Election 
Commission of Pakistan (ECP). It appears that 
eventually the Respondent No.1 was appointed as 
Special Assistant to the Chief Minister, Government 
of KPK. 
3. 
 
On 28.12.2016, the present Petitioner filed 
an application before the ECP purportedly under 
Article 6 of the Election Commission Order, 2002 
CP.3131/2017 
3 
read with Articles 63 and 218(3) of the Constitution 
of the Islamic Republic of Pakistan, 1973 and 
Section 99 of the Representation of the People Act, 
1976 
(ROPA 
of 
1976) 
alleging 
therein 
that 
Respondent No.1 was employed as a Primary 
School Teacher with the Government of KPK and 
was holding the said post and drawing salary at the 
relevant point of time i.e. when he filed his 
Nomination Papers. He allegedly resigned from such 
post with effect from 31.03.2013. Thus, he had 
been employed by the Government of KPK and two 
years had not passed since his resignation when he 
contested 
the 
elections, 
therefore, 
the 
said 
Respondent was disqualified in view of Article 
63(1)(k) and further not qualified under Article 
62(1)(f) having made a false declaration in his 
Nomination Papers.  
4. 
 
The Election Commission of Pakistan after 
hearing the parties and examining the relevant 
record concluded that in fact Respondent No.1 at 
the time of submitting his Nomination Papers on 
29.03.2013 was indeed employed as a Primary 
CP.3131/2017 
4 
School Teacher and was drawing salary as such. As 
per record his date of appointment in Government 
Service was 14.03.1987 and the date of resignation 
was 31.03.2013, hence, Respondent No.1 was 
disqualified 
from 
contesting 
the 
elections. 
Consequently, 
the 
ECP 
vide 
Order 
dated 
19.04.2017 held that the Petitioner had violated 
Article 63(1)(k) of the Constitution as well as 
Section 99(1A)(k)(l) of the ROPA of 1976. Therefore, 
the election of Respondent No.1 was declared null 
and void and the Notification withdrawn. Aggrieved, 
the Respondent No.1 challenged the aforesaid 
Order of the ECP by filing Writ Petition No.1687-P 
of 2017 before the learned Peshawar High Court, 
which has been allowed vide the impugned 
judgment dated 15.08.2017. 
5. 
 
It is contended by the learned counsel for 
the Petitioner that it is a matter of official record 
with a presumption of truth attached therewith that 
Respondent No.1 was employed as a Primary 
School Teacher for that too more than two decades 
when he submitted his Nomination Papers for the 
CP.3131/2017 
5 
elections to the Provincial Assembly in May, 2013, 
hence, was obviously disqualified. The learned 
counsel further contended that Respondent No.1 
was admittedly appointed as the Special Assistant 
to the Chief Minister, KPK and was thus entitled to 
draw salary. It is reiterated that in the Pay Slip of 
Respondent No.1 as an MPA/Special Assistant to 
the Chief Minister, Government of KPK, the same 
Personal Number is mentioned as in the Pay Slip as 
a Primary School Teacher as well as the fact that he 
was in the Government Service for more than two 
decades. The Respondent No.1 having received the 
salary for several years on the aforesaid Pay Slip 
cannot feign ignorance of its contents to deny his 
employment as a Primary School Teacher. Thus, 
leaving no manner of doubt the Respondent No.1 
was employed as a Primary School Teacher when he 
submitted his Nomination Papers. It is added that 
the findings arrived at by the learned High Court by 
way of the impugned judgment dated 15.08.2017 
that some other person, namely, Bakht Jehan son 
of Jehan Faraz, had misused the educational 
CP.3131/2017 
6 
testimonials of Respondent No.1 to obtain the said 
employment as a Primary School Teacher and the 
thumb impression on the Service Book reflecting 
the name of Respondent No.1 matches with the 
thumb impression of Bakht Jehan are based on an 
inquiry 
conducted 
by 
the 
Anti-Corruption 
Establishment 
of 
the 
Provincial 
Government 
wherein the Respondent No.1 was a Special 
Assistant to the Chief Minister. Such inquiry and 
its findings are thus not worthy of any credence nor 
could form the basis of any adjudication by the 
learned 
High 
Court 
in 
its 
Constitutional 
jurisdiction.  
6. 
 
The learned counsel further contended 
that the findings of the learned High Court by way 
of the impugned judgment dated 15.08.2017 qua 
lack of jurisdiction of the ECP to de-notify 
Respondent No.1 is misconceived and against 
settled law. It is the case of the Petitioner that such 
powers are vested with the ECP under Article 218(3) 
of the Constitution and as has been held by this 
Court in the judgments reported as Mian Najeeb-
CP.3131/2017 
7 
ud-Din Owasi and another v. Amir Yar Waran and 
others (PLD 2013 SC 482) and Workers’ Party 
Pakistan 
through 
Akhtar 
Hussain, 
Advocate, 
General Secretary and 6 others v. Federation of 
Pakistan and 2 others (PLD 2012 SC 681).  
  
By relying upon the aforesaid judgments, it 
was further contended that even otherwise, once it 
has been established on record that Respondent 
No.1 was not qualified to be a Member of the 
Provincial Assembly and has sneaked into the 
House through deliberate concealment of material 
facts 
and 
by 
making 
a 
false 
declaration, 
Respondent No.1 was disqualified under Articles 
62(1)(f) and 63(1)(k) of the Constitution, this Court 
as well as the learned High Court are vested with 
the jurisdiction to pass appropriate orders under 
Articles 184(3), 187 and 199 of the Constitution, 
respectively to ensure that a disqualified person 
does not enter the Parliament or the Provincial 
Assembly. The learned counsel also contended that 
the learned High Court, even otherwise, has 
blatantly erred in law by assuming that the 
CP.3131/2017 
8 
provisions of Articles 62 and 63 of the Constitution 
do not apply to the Members of the Provincial 
Assembly. The said judgment, in this behalf, has 
totally ignored the provisions of Article 113 of the 
Constitution. 
7. 
 
Sahibzada Naeem Bokhari, learned Sr. 
ASC for the private Respondent i.e. Respondent 
No.1 controverted the contentions raised on behalf 
of the Petitioner by contending that the ECP had no 
jurisdiction to pass an order de-notifying the 
Respondent No.1 and the same has been rightly set 
aside by the learned High Court by way of the 
impugned judgment. It is contended that with 
regard to an alleged pre-election disqualification, an 
objection could have been taken before the 
Returning Officer when the Nomination Papers were 
filed. Thereafter, an Election Petition could have 
been filed before the Election Tribunal constituted 
in terms of Article 225 of the Constitution. Other 
than the aforesaid remedies, the Petitioner could 
only have filed a writ of quo warranto before the 
learned High Court or this Court. In the instant 
CP.3131/2017 
9 
case, none of the aforesaid three courses of action 
was undertaken by the Petitioner. It is added that 
jurisdiction of the ECP with regard to the 
allegations raised by the Petitioner would cease 
upon the constitution of the Election Tribunal or 60 
days after the elections were concluded and 
Respondent No.1 notified as a Returned Candidate. 
In the instant case, an application was filed before 
the ECP many years after the elections. It is added 
by the learned counsel that the judgments of this 
Court in which the ECP was directed to verify the 
eligibility of the Members of the Parliament are of 
no assistance to the Petitioner as in such cases the 
jurisdiction was exercised by this Court while the 
ECP only complied with the directions issued by the 
Court and was not exercising any independent 
power or authority.  
8. 
 
Alternatively, 
the 
learned 
counsel 
contended that the conclusions have been drawn by 
the ECP without any evidentiary hearing and by 
ignoring the record. Thus, on one hand, the said 
Respondent No.1 was denied his Fundamental 
CP.3131/2017 
10
Rights to a fair trial guaranteed by Article 10A read 
with Article 4 of the Constitution while on the other 
hand, the ECP has also ignored the relevant and 
material evidence on record. It is his case that when 
the allegations levelled against Respondent No.1 by 
way of a Press Conference held by the Petitioner 
alleging that Respondent No.1 was employed or had 
been employed as a Primary School Teacher, the 
Respondent No.1 on the very next day made an 
application to the Anti-Corruption Department, 
Government of KPK complaining that an offence of 
impersonation has been committed and somebody 
else by misusing the name and educational 
testimonials of Respondent No.1 had obtained 
employment as a Primary School Teacher. An 
inquiry was conducted which resulted in some 
startling revelation. It came to light that the thumb 
impression on the Service Book of the Primary 
School Teacher did not belong to Respondent No.1 
but were of one Bakht Jehan as stood disclosed                
from the record of the National Database & 
Registration Authority (NADRA). It also became 
CP.3131/2017 
11
apparent that the salary disbursed to the Primary 
School Teacher was recorded on a Register which 
did not show that any such salary had been 
personally 
received 
by 
Respondent 
No.1. 
Subsequently, the salary was disbursed through 
the National Bank of Pakistan (NBP). The record of 
the concerned Branch of NBP and the cheques 
utilized for drawing the money were sent to the 
Forensic Science Laboratory (F.S.L.) along with 
admitted signatures of Respondent No.1 and as per 
the Report of the Handwriting Expert of the F.S.L. 
the signatures in the Bank record and on the 
cheques were not that of Respondent No.1. 
Furthermore, as per the record, the said Primary 
School Teacher was 5 feet and 6 inches tall while 
the Respondent No.1 is over 6 feet. The aforesaid 
facts it was contended are self-evident which were 
not taken into consideration by the ECP while 
passing the order, which has been rightly set aside 
by way of the impugned judgment. The learned 
counsel added that more importantly, in presence 
of such facts and record it cannot in any event be 
CP.3131/2017 
12
conclusively held that in fact it was the Respondent 
No.1 who was employed as a Primary School 
Teacher and his name and documents had not been 
misused by some other person, perhaps, the 
aforesaid Bakht Jehan. A conclusive finding, in this 
behalf, he added was not possible or permissible 
without recording of evidence. With regard to the 
Pay Slip regarding the salary drawn as an MPA and 
a Special Assistant to the Chief Minister, it was 
contended by the learned counsel that such Pay 
Slip was never given or supplied to Respondent 
No.1 and such salary was directly deposited in his 
account with the Bank of Khyber. Therefore, the 
Respondent No.1 had no knowledge that it was 
mentioned on his Pay Slip that he was an employee 
of the Government of KPK for the last two decades 
thus no adverse influence should be drawn against 
Respondent No.1.  
9. 
 
The learned Additional Advocate General, 
KPK contended that as per the relevant record, 
more particularly, the evidence collected in the 
inquiry, it cannot be conclusively held that it was 
CP.3131/2017 
13
the Respondent No.1 who was employed as a 
Primary School Teacher. The inquiry concluded, 
more particularly, on account of the material 
referred to above that in fact an offence of 
impersonation has been committed at the expense 
of the Respondent No.1 who cannot be penalized 
therefor being a victim. 
10.  
Heard. Record perused.    
11.  
By way of the impugned judgment dated 
15.08.2017, 
a 
learned 
Division 
Bench 
of 
the 
Peshawar 
High 
Court, 
after 
referring 
to 
and 
reproducing in extenso various provisions of the 
Constitution and the ROPA of 1976, set aside the 
Order of the ECP, de-notifying Respondent No.1 and 
validated his elections as a Member of the Provincial 
Assembly of KPK. One of the pillars of the impugned 
judgment is that Articles 62 and 63 of the 
Constitution are applicable only to the Members of 
the Majlis-e-Shoora i.e. the Senate and the National 
Assembly and inapplicable to the Members of the 
Provincial Assemblies. Such finding of law has been 
recorded in paragraph 16 of the impugned judgment. 
CP.3131/2017 
14
It is clear and obvious that the learned High Court 
has ventured to decide the lis before it by totally 
ignoring the provisions of Article 113 of the 
Constitution, which reads as follows: 
  
“113. 
The 
qualifications 
and 
disqualifications for membership of the 
National Assembly set out in Articles 62 
and 63 shall also apply for membership 
of a Provincial Assembly as if reference 
therein to “National Assembly” were a 
reference to “Provincial Assembly”. 
 
12.  
The aforesaid aspect of the matter obviously 
was not seriously contested either by the learned 
counsel for Respondent No.1 or by the learned 
Additional Advocate General, KPK. The impugned 
judgment appears to be anchored upon a rather 
shaky legal foundation.  
13.  
The primary bone of contention between the 
parties was with regard to the jurisdiction of the ECP 
to pass an order of de-notifying a Returned Candidate 
several years after the elections. By referring to the 
various provisions of ROPA of 1976 especially Section 
103AA(2) and the Constitution, more particularly, 
Article 225 of the Constitution, it has been held by 
way of the impugned judgment that a pre-election 
CP.3131/2017 
15
disqualification or lack of qualification is to be 
adjudicated upon by various fora at various points of 
time. This aspect of the matter has very succinctly set 
forth by this Court in the judgment reported as Ch. 
Muhammad 
Ashraf 
Warraich 
and 
another 
v. 
Muhammad Nasir Cheema and others (2016 SCMR 
998) in the following terms: 
  
“15. It may be observed that candidature 
of a candidate could be challenged under 
the RoPA, 1976 at three different stages, 
right from the day of nomination till 45 
days after the declaration of the official 
result. 
First 
stage 
is 
pre-election 
challenge at the time of scrutiny of 
nomination papers. Challenge to the 
candidature could be thrown by any of 
the contesting candidate, their agents, 
proposer, seconder, electors by filing 
objections against any of the candidate 
before the Returning Officer, on the 
grounds enumerated in clauses (a) to (d) 
to subsection (3) and subsection (5A) of 
section 14 of the RoPA. Any decision 
rejecting or accepting nomination paper, 
passed by the Returning Officer, is 
subject to right of appeal before the 
Tribunal comprised of not less than two 
and not more than three High Court 
Judges. Appeal is required to be decided 
summarily within prescribed time, if time 
lapses, appeal by virtue of deeming 
provision subsection (6) thereof is deemed 
to be rejected. Second stage is post-
election challenge to the election of 
returned candidate before the Election 
Commission of Pakistan, under section 
103AA of the RoPA, 1976. Election 
Commission, 
after 
such 
summary 
enquiry as to grave illegality or violation 
of the provisions of RoPA, 1976 or the 
rules framed there under, may declare 
CP.3131/2017 
16
the poll in any constituency as void and 
may call upon constituency to elect 
member, but such jurisdiction to declare 
the poll void, could be exercised before 
the expiry of sixty (60) days after the 
publication of result of the election (per 
section 42 of RoPA), where after, the 
Election Commission, becomes functus 
officio, and the returned candidate is 
deemed to be elected, but subject to the 
decision of Election Tribunal, constituted 
Section 57 of RoPA. Provided such 
challenge is thrown, by any of the 
contesting candidate. Third opportunity 
to challenge the election of the returned 
candidate 
becomes 
available 
post-
¬election, to be made by any candidate of 
the subject constituency, before the 
Election 
Tribunal 
constituted 
under 
Section 57 ibid, within forty five (45) days 
from the date of publication in the official 
gazette of the name of the returned 
candidate, of the subject constituency in 
the manner provided under the RoPA, 
1976 itself.” 
  
 
 
   (emphasis supplied) 
 
14.  
A similar view was also expressed by this 
Court in the judgments reported as Bartha Ram v. 
Lala Mehar Lal Bheel and another (1995 SCMR 684) 
and Syed Fakhar Imam v. Chief Election Commission 
of Pakistan and others (PLD 2008 SC 730). However, 
it is the contention of the learned counsel for the 
Petitioner that in the afore-mentioned judgments of 
this Court has not been factored in the provisions of 
Article 218(3) of the Constitution. It is his case that 
the said Article 218(3) of the Constitution needs to be 
CP.3131/2017 
17
interpreted dynamically so as to recognize and 
acknowledge the conferment of jurisdiction upon the 
ECP to fulfill its Constitutional mandate of ensuring 
free and fair elections irrespective of any limitation of 
a timeframe imposed by any sub-constitutional 
legislation, 
including 
ROPA 
of 
1976, 
more 
particularly, Section 103 AA (2) thereof. It is also 
added that Article 225 of the Constitution must be 
interpreted and read in harmony with Article 218(3) of 
the Constitution. 
15.  
Reference, in this behalf, was made to the 
observations made by this Court in the case reported 
as Muhammad Rizwan Gill v. Nadia Aziz and others 
(PLD 2010 SC 828) which is reproduced hereunder 
for ease of reference: 
  
“14. … a demanding duty stood cast on 
the Election Commission and on all 
others 
performing 
functions 
under 
various election laws to ensure not only 
that the elections were fair and honest; 
that no corrupt practices were practised 
in the elections but also that the 
individuals 
who 
had 
been 
declared 
disqualified 
to 
enter 
the 
Legislative 
institutions, were not allowed to break 
into the said houses and further that to 
discharge the said onerous obligations, 
the said functionaries had not been left at 
the mercy of the objectors or even of the 
rival candidates and that they could act 
in the matter even suo motu. Needless to 
CP.3131/2017 
18
add that the Election Tribunals envisaged 
by Article 225 of the Constitution and 
performing functions under the said Act 
of 1976 and even this Court while acting 
as the Appellate Forum under section 67 
of the Act of 1976, also stand charged 
with the same duties.” 
 
16.  
The learned counsel also referred to the 
judgment of this Court reported as Mian Najeeb-ud-
Din Owaisi and another (supra) wherein it was 
observed as follows: 
  
“4. … if a Parliamentarian before or after 
the 
election 
is 
disqualified 
on 
this 
account, he would have no right to hold 
the Office as a Parliamentarian/Member 
of the National/Provincial Assembly or 
the Senate and in such situation, it is 
obligatory upon the ECP to proceed 
against such person by de-notify him. …” 
 
17.  
The 
question 
of 
availability 
of 
the 
jurisdiction with the ECP to decide the complaint and 
de-notify a Returned Candidate after the lapse of a 
period of sixty days provided in Section 103AA(2) of 
ROPA of 1976, is not without difficulty. The 
contentions of the learned counsel for the Petitioner 
cannot be simply brushed aside as frivolous. 
However, this aspect of the matter as canvassed by 
the learned counsel for the Petitioner needs not to be 
adjudicated upon in the instant case. 
CP.3131/2017 
19
18.  
However, there can be no escape from the 
fact that if a person suffering from a pre-election 
disqualification or lack of qualification slips through 
the cracks and no objection is raised before the 
Returning Officer, no complaint is made to the ECP in 
terms of Section 103AA of ROPA of 1976 within the 
time specified therefor and no Election Petition filed 
before the learned Election Tribunal then the inherent 
disqualification of such person is obviously not cured 
nor can it be said that by mere absence of a challenge 
he acquires the qualification by lapse of time.  
  
In such circumstances, where unqualified or 
disqualified person manages to escape through the 
net and trespass into the Majlis-e-Shoora or the 
Provincial Assembly, the Constitutional jurisdiction of 
the learned High Court under Article 199 of the 
Constitution and of this Court under Article 184(3) of 
the Constitution can always be invoked. Such powers 
were exercised by a five Member Bench of this Court 
in the case reported as Imran Ahmad Khan Niazi v. 
Mian Muhammad Nawaz Sharif, Prime Minister of 
Pakistan/Member 
National 
Assembly, 
Prime 
CP.3131/2017 
20
Minister’s House, Islamabad and 9 others (PLD 2017 
SC 265) and in this behalf, it was observed as follows: 
  
“86. However, it is now settled law and 
has been so settled through a series of 
judgments 
of 
this 
Court 
including 
Farzand Ali v. Province of West Pakistan 
(PLD 1970 SC 98) and Muhammad Azhar 
Siddiqui v. Federation of Pakistan and 
others (PLD 2012 SC 774) that a 
Constitution Petition in the nature of a 
writ of quo warranto is maintainable 
against the Member of the Majlis-e-
Shoora, if he is disqualified or did not 
possess or has lost his qualification, in 
this behalf. Such Constitutional Petitions 
can always be filed before the learned 
High Court under Article 199 of the 
Constitution and before this Court under 
Article 184(3) of the Constitution, as has 
been filed in the instant case.” 
 
 
19.  
A similar view was earlier expressed by this 
Court in the judgment reported as Nawabzada 
Iftikhar 
Ahmad 
Khan 
Bar 
v. 
Chief 
Election 
Commissioner Islamabad and others (PLD 2010 SC 
817). The jurisdiction in the nature of quo warranto 
was also exercised by this Court in the case reported 
as Muhammad Hanif Abbasi v. Jahangir Khan Tareen 
and others (PLD 2018 SC 114) and a sitting Member 
of the National Assembly was declared disqualified in 
terms of Article 62(1)(f) of the Constitution read with 
Section 99 (1)(f) of ROPA, 1976 and de-notified. 
CP.3131/2017 
21
Furthermore, in the case reported as Muhammad 
Hanif Abbasi v. Imran Khan Niazi and others (PLD 
2018 SC 189) although this Court assumed similar 
jurisdiction under Article 184(3) of the Constitution 
against a Member of the National Assembly, however, 
these proceedings eventually failed.  
20.  
We are aware that in the instant case, the lis 
has reached this Court not by invoking Article 184(3) 
of the Constitution (though the learned High Court 
was exercising its Constitutional jurisdiction under 
Article 199). Be that as it may, this Court is not 
precluded from converting one type of proceedings 
into another type, including the existing proceedings 
under 
Article 
185(3) 
of 
the 
Constitution 
and 
exercising our jurisdiction under Article 184(3) of the 
Constitution so as to adjudicate upon disqualification 
or lack of qualification of Respondent No.1. This 
Court in the judgment reported as Muhammad 
Akram v. DCO, Rahim Yar Khan and others (2017 
SCMR 56) held as follows: 
 
“7. 
The 
Courts 
are 
sanctuaries 
of 
justice, and in exercise of authority to do 
ex debito justitiae, that is to say remedy a 
wrong and to suppress a mischief to 
CP.3131/2017 
22
which a litigant is entitled. No fetters or 
bar could be placed on the High Court 
and or this court to convert and treat one 
type of proceeding into another type and 
proceed to decide the matter either itself 
provided it has jurisdiction over the lis 
before 
it 
in 
exercise 
of 
another 
jurisdiction vested in the very court or 
may remit the lis to the competent 
authority/forum or court for decision on 
merits. Courts have been treating and or 
converting appeal into revisions and vice 
versa and Constitution Petitions into 
appeal or revision and vice versa.”   
 
 
 
The said view was further fortified by the 
judgment of this Court rendered in the case of 
Muhammad Jibran Nasir and others Vs. The State 
and others (Criminal Appeals No.1-K to 3-K of 2018 
converted into Suo Motu Case No.01 of 2018), 
wherein it was held that: 
 
“4. … Apart from that the jurisdiction of 
this Court under Article 184(3) of the 
Constitution is an independent original 
jurisdiction which is not affected by 
pendency of any matter on the same 
subject matter before any other court or 
forum or even by a prior decision of the 
same issue by any other court or forum 
below and a reference in this respect may 
be made to the cases of Muhammad 
Yasin 
v. 
Federation 
of 
Pakistan 
through 
Secretary, 
Establishment 
Division, Islamabad and others (PLD 
2012 SC 132), Miss Benazir Bhutto v. 
Federation of Pakistan and others (PLD 
1988 SC 416), Mian Muhammad Nawaz 
Sharif v. President of Pakistan and 
others (PLD 1993 SC 473), Suo Motu 
Case No. 10 of 2009 (2010 SCMR 885), 
Shahid Orakzai v. Pakistan through 
Secretary 
Law, 
Ministry 
of 
Law, 
CP.3131/2017 
23
Islamabad (PLD 2011 SC 365), Khawaja 
Muhammad 
Asif 
v. 
Federation 
of 
Pakistan and others (PLD 2014 SC 206) 
and Jamshoro Joint Venture Ltd. and 
others v. Khawaja Muhammad Asif and 
others (2014 SCMR 1858). For these 
reasons we have converted these appeals 
into a Suo Motu Case under Article 184(3) 
of the Constitution.” 
  
      (emphasis provided to simple underlining) 
21.  
An overview of the Constitution of the 
Islamic Republic of Pakistan, 1973 would reveal that 
the most salient of its salient features is that power is 
to be exercised on behalf of the people of Pakistan by 
their chosen representatives. It is the right of the 
people of Pakistan to be governed by their chosen 
representatives which is the most fundamental of the 
Fundamental 
Right 
guaranteed 
under 
the 
Constitution. Reference, in this behalf, may be made 
to the judgment of this Court reported as Imran 
Ahmad Khan Niazi (supra), wherein it was observed 
as follows: 
 
“7. 
The foundation of our Constitutional 
dispensation as is evident from the 
Constitutional 
provisions, 
more 
particularly, the opening lines of its 
Preamble is that the Sovereignty vests in 
Almighty Allah and authority is to be 
exercised by the people of Pakistan 
through their chosen representatives. 
This is the heart and soul of our 
Constitution, which is also reflected in 
Article 17, the Fundamental Right of 
CP.3131/2017 
24
“Freedom 
of 
association”. 
It 
is 
an 
unalienable 
right 
of 
the 
people 
of 
Pakistan to be governed by and under the 
authority of their chosen representatives. 
A right on which the entire edifice of our 
Constitutional 
and 
Legal 
Framework 
rests. This aspect of the matter in the 
context of the jurisdiction of the Court 
under Article 184(3) of the Constitution 
has 
been 
considered 
in 
various 
judgments of this Court, including the 
judgment, reported as Air Marshal (Retd) 
Muhammad Asghar Khan v. General 
(Retd) Mirza Aslam Baig, Former Chief of 
Army Staff and others (PLD 2013 SC 1), 
wherein it has been observed, inter alia, 
as follows:- 
 
“102. 
Above are the reasons for our 
short order of even date whereby the 
instant petition was disposed of as under:– 
 
“The Constitution of the Islamic 
Republic of Pakistan commands 
that it is the will of the people of 
Pakistan to establish an order 
wherein the State shall exercise 
its 
powers 
and 
authority 
through 
the 
chosen 
representatives of the people, 
wherein 
the 
principles 
of 
democracy, freedom, equality, 
etc., shall be fully observed, so 
that the people of Pakistan may 
prosper and attain their rightful 
and honoured place amongst 
the nations of the world, and 
make their full contribution 
towards international peace and 
progress 
and 
happiness 
of 
humanity. People of Pakistan 
had been struggling to establish 
a parliamentary and democratic 
order since long within the 
framework of the Constitution 
and now they foresee a strong 
system which is established by 
the passage of time without any 
threat and which is subject to 
the constitution and rule of law. 
CP.3131/2017 
25
 
2. The essence of this Human 
Rights case is based on the 
fundamental right of citizens 
enshrined in Article 17 of the 
Constitution. 
It 
raises 
an 
important question of public 
importance 
to 
enforce 
the 
fundamental rights, inter alia, 
noted hereinabove, therefore, in 
accordance with the provisions 
of 
Article 
184(3) 
of 
the 
Constitution, jurisdiction has 
been assumed and exercised to 
declare, for the reasons to be 
recorded later, as under:- 
(1) 
That 
citizens 
of 
Pakistan as a matter of 
right are free to elect 
their representatives in 
an 
election 
process 
being 
conducted 
honestly, justly, fairly 
and in accordance with 
law. …” 
 
22.  
The qualifications and disqualifications of 
the persons entitled to be Members of the Majlis-e-
Shoora or a Provincial Assembly and thereby act as 
chosen representative of the people of Pakistan have 
been set forth in the Constitution in Articles 62 and 
63 thereof as well as in sub-constitutional legislation, 
including ROPA of 1976. The question that floats to 
the surface is where a person, who is either not 
qualified or disqualified under the Constitution and 
the law from being a Member of Majlis-e-Shoora or a 
CP.3131/2017 
26
Provincial Assembly sneaks into such House, would 
the Constitutional right of the people of Pakistan be 
infringed and violence down to the very spirit of the 
Constitution?  
23.  
This Court in its judgment reported as Malik 
Iqbal Ahmad Langrial v. Jamshed Alam and others 
(PLD 2013 SC 179) held as follows: 
 
“10. … In the case of Muddasar Qayyum 
Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) 
this Court had upheld the findings of 
Election Tribunal, Punjab whereby it was 
held that a person who indulges into using 
unfair means in procuring his educational 
qualifications does not deserve to claim to 
be an honest, righteous or Ameen person 
so 
that 
he 
be 
assigned 
the 
high 
responsibilities 
of 
performing 
national 
functions of running the affairs of the 
country. The spirit with which the words 
sagacious, 
righteous, 
non 
profligate, 
honest and Ameen have been used by the 
Constitution 
of 
Islamic 
Republic 
of 
Pakistan, 1973 for the eligibility of the 
candidates contesting the elections of 
Members National or Provincial Assembly 
cannot be allowed to be frustrated if 
persons who secure their educational 
documents  through  unfair  means  and  
are  found  guilty  of such  a  condemnable  
act  by  the  competent  authority  are 
allowed to be given entry into the doors of 
National or Provincial Assemblies of our 
country. The respondent (therein) is thus 
not worthy of credence and cannot be 
allowed 
to 
be 
entrusted 
with 
State 
responsibilities of Law Making; to be in-
charge of the National Exchequer or be 
eligible 
to 
represent 
the 
people 
of 
Pakistan.” 
  
 
 
 
(emphasis supplied) 
 
CP.3131/2017 
27
The aforesaid quotation was also reproduced 
with approval in the case reported as Allah Dino Khan 
Bhayo v. Election Commission of Pakistan, Islamabad 
and others (2013 SCMR 1655). It was reiterated in 
the case reported as Abdul Ghafoor Lehri v. Returning 
Officer, PB-29, Naseerabad-II and others (2013 SCMR 
1271) and was re-emphasized in the case reported as 
Syed Mehmood Akhtar Naqvi v. Federation of 
Pakistan through Secretary Law and others (PLD 
2012 SC 1089).  
24.  
This 
Court 
in 
the 
case 
reported 
as 
Nawabzada Iftikhar Ahmad Khan Bar (supra) held as 
follows: 
“14. The Parliament of any country is one 
of its noblest, honourable and important 
institutions making not only the policies 
and the laws for the nation but in fact 
shaping and carving its very destiny. And 
here is a man who being constitutionally 
and 
legally 
debarred 
from 
being 
its 
member, managed to sneak into it by 
making a false statement on oath and by 
using bogus, fake and forged documents 
polluting the piety of this pious body. His 
said conduct demonstrates not only his 
callous contempt for the basic norms of 
honesty, integrity and even for his own 
oath but also undermines the sanctity, the 
dignity and the majesty of the said august 
House. 
He 
is 
guilty, 
inter 
alia, 
of 
impersonation --- posing to be what he 
was not i.e. a graduate. He is also guilty of 
having been a party to the making of false 
CP.3131/2017 
28
documents and then dishonestly using 
them for his benefit knowing them to be 
false. He is further guilty of cheating --- 
cheating not only his own constituents but 
the nation at large.” 
 
 
 
 
(emphasis supplied) 
 
The aforesaid observations were reiterated in the 
case reported as Muhammad Rizwan Gill (supra).  
25.  
In the case reported as Muhammad Khan 
Junejo v. Federation of Pakistan through Secretary, 
M/o Law and Justice and Parliamentary Affairs and 
others (2013 SCRM 1328), it was held as follows: 
“7. 
There is no doubt that the petitioner 
had submitted fake and bogus documents 
in order to become a Member of the 
Parliament, as such, he has not only 
played a fraud on the electors of his 
constituency but he has also cheated the 
Returning Officer to believe him to be 
graduate on the basis of fake and forged 
documents and such a person cannot be 
trusted to lead the nation as a legislature. 
…” 
 
26.  
In the case reported as Muhammad Hanif 
Abbasi (supra), it was held as under: 
“113. 
Considering 
applicable 
legal 
criteria, it is a fundamental right of people 
of Pakistan that its public representatives 
discharge their offices in public interest 
and not for their personal gain. Such 
public officers are fiduciaries discharging a 
trust vested in them by the people of 
Pakistan for which office the attributes, 
inter alia, of probity, honesty, integrity and 
trustworthiness 
are 
constitutional 
requirements. The fulfillment of these 
conditions by the decision makers in 
CP.3131/2017 
29
Parliament and in government is essential 
for the existence and progress of a 
democratic and law based order in the 
polity which is a basic feature of our 
Constitution. …” 
 
27.  
An overview of the afore-quoted provisions of 
the Constitution, as interpreted by this Court through 
its various juridical pronouncements referred to and 
reproduced herein above leads to an irresistible and 
irrefutable 
conclusion 
that 
our 
Constitutional 
dispensation is erected upon the democratic principle 
that the authority vest with the people of Pakistan 
can 
only 
be 
exercised 
through 
their 
chosen 
representatives. Such authority, including the power 
of law making and control over the public exchequer 
is to be conferred upon the chosen representatives by 
way of trust and the trust can only be reposed upon 
those who are worthy thereof.  
28.   
In the above context, the qualification and 
disqualification of persons, entitled to act as the 
chosen representatives of the people and to act on 
their behalf as Members of the Majlis-e-Shoora and 
the Provincial Assemblies are set forth in the 
Constitution itself, more particularly, in Articles 62 
CP.3131/2017 
30
and 63 thereof as well as other sub-Constitutional 
legislation. An elaborate process and procedure has 
been prescribed by law to filter out those who are 
disqualified or not qualified to contest the elections to 
the Majlis-e-Shoora and the Provincial Assemblies as 
is apparent primarily from the provisions of ROPA of 
1976. With regard to pre-election disqualification, 
such process includes objections before the Returning 
Officer at the time of filing of the Nomination Papers, 
an application to the ECP under Section 103-A of 
ROPA of 1976. And subsequently, an Election Petition 
before the Election Tribunal established under Article 
225 of the Constitution. If no objection is raised or 
challenge thrown or relevant proceedings initiated 
before the appropriate forum at the appropriate time, 
the disqualification of a candidate is not cured nor an 
abscent qualification acquired.   
29.  
Consequently, 
where 
a 
disqualified 
or 
unqualified person slips through the cracks sneaks 
into the Majlis-e-Shoora or the Provincial Assemblies, 
his presence in the said House can always be 
challenged through exercise of the Constitutional 
CP.3131/2017 
31
jurisdiction of this Court under Article 184(3) of the 
Constitution and before the learned High Court under 
Article 199 of the Constitution by way of a Writ in the 
nature of quo warranto. Even where a matter comes 
before this Court regarding the qualification or 
disqualification of a Member of the Majlis-e-Shoora or 
the Provincial Assemblies otherwise by way of 
proceedings other than under Article 184(3) of the 
Constitution, this Court not only has the jurisdiction 
to convert such proceedings to proceedings under 
Article 184(3) of the Constitution but  is bound to do 
so, as to permit an unqualified or disqualified person 
to continue to defile and desecrate the Majlis-e-
Shoora or the Provincial Assemblies and masqulate as 
a chosen representative of the people would amount 
to frustrating the Constitutional provisions. In such 
an eventuality, if this Court looks other way, it would 
perhaps constitute a failure to protect and preserve 
the Constitution. 
  
Thus, we find ourselves unable to decline the 
prayer of the Petitioner to examine the merits of the 
case so as to determine on the basis of the material 
CP.3131/2017 
32
available on record whether Respondent No.1 was 
qualified or disqualified from being a Member of the 
Provincial Assembly, KPK. Any refusal on our part to 
avoid or evade such an exercise would constitutes a 
departure from the law as laid down by this Court 
and perhaps would even amount to a betrayal of the 
Constitution. Hence, we convert these proceedings 
into Suo Motu proceedings under Article 184(3) of the 
Constitution.  
30.  
It is self-evident from the record that one 
Abdul Munim son of Habib-ur-Rehman, having CNIC 
No.15505-0222605-3 was employed as a Primary 
School Teacher in Kohistan. The said Primary School 
Teacher for the purposes of payment of salary was 
awarded a Personal Number i.e. 00335754. It is also 
common ground between the parties and as is also 
evident from the record that the said Primary School 
Teacher 
retired 
from 
service 
with 
effect 
from 
31.03.2013. It is not disputed between the parties 
that Respondent No.1’s CNIC Number is 15505-
0222605-3. In the above backdrop, it is the case of 
the Petitioner that in fact it is the Respondent No.1 
CP.3131/2017 
33
who obtained employment as a Primary School 
Teacher in the year 1987 and continued to be in 
service till 31.03.2013 as a ghost employee, hence, he 
was not qualified to contest the elections held in May, 
2013 or be a Member of the Provincial Assembly. On 
the other hand, it is the case of Respondent No.1 that 
by impersonating and using the Name, CNIC Number 
and perhaps his educational testimonials some one 
else obtained employment as a Primary School 
Teacher in Kohistan without the knowledge of 
Respondent No.1.  
31.  
There is nothing on record to suggest nor it 
is the case of the either party that Respondent No.1 
ever worked as a School Teacher and personally drew 
salary. In fact, there is no salary record, in this 
behalf, 
which 
could 
be 
directly 
connected 
to 
Respondent No.1. The Pay Roll Register and the Bank 
Account in Kohistan could not conclusively connect 
with Respondent No.1. 
32.  
However, eventually the Respondent No.1 
was appointed as a Special Assistant to the Chief 
Minister, KPK and in such capacity entitled to salary 
CP.3131/2017 
34
from the Government of KPK. A computerized Pay Slip 
was generated, which is available on record that 
bears the same Personal Number and CNIC Number 
as that of Abdul Munim as the Primary School 
Teacher in Kohistan. More importantly, it clearly 
exhibits his length of service as about 20 years when 
coincide with the employment of Abdul Munim, as a 
Primary School Teacher. Respondent No.1 received 
such salary as Special Assistant without hesitation or 
protest, leaving no manner of any doubt that he was 
aware that he as per record was employed as a 
Primary School Teacher and such employment was 
obviously 
with 
his 
knowledge, 
consent 
and 
connivance.  
33.  
Confronted with the aforesaid situation, the 
learned counsel for Respondent No.1 initially took up 
a plea that the Pay Slips were never communicated to 
Respondent No.1, hence, he had no knowledge of its 
incriminating contents. This Court summoned the 
District Education Officer, Kohistan, Accounts Officer 
& Assistant Accounts Officer, A.G., Office, KPK and 
A.C.O., Dassu Kohistan, who in unequivocal terms 
CP.3131/2017 
35
stated that the Pay Slips as Special Assistant were in 
fact communicated to Respondent No.1 in the normal 
course. The aforesaid is reflected in the Order of this 
Court dated 22.02.2018. Finding it impossible to 
deny the service of the Pay Slips and obvious 
knowledge of its contents a rather belated attempt 
was made to set up a plea that Respondent No.1 was 
unable to comprehend the true import and meaning 
of the contents of the Pay Slips. Respondent No.1 was 
a Member of the Provincial Assembly and was a 
Special Assistant to the Chief Minister, KPK, 
therefore, it is, difficult to accept this after thought 
that he was unable to understand the contents of the 
Pay Slip. It appears that upon being appointed as a 
Special Assistant to the Chief Minister, KPK, he was 
entitled to draw salary from the Government of KPK. 
It appears that his Name, Parentage and CNIC 
Number was fed into the system, a Pay Slip was 
generated with the particulars and the same Personal 
Number and CNIC Number as that of the Primary 
School Teacher with the length of service and 
availability of the General Provident Fund (GPF) 
CP.3131/2017 
36
clearly mentioned. The Respondent No.1 was served 
with the said Pay Slips during his tenure as a Special 
Assistant to the Chief Minister. He accepts the salary 
without making any attempt for rectification of the 
Pay Slip, thus, conclusively establishing that he, the 
Respondent No.1, was in fact employed as a Primary 
School Teacher at Kohistan since 1987 though he 
was a ghost employee. In the circumstances, a period 
of two years had not lapsed on 31.03.2013 the date of 
resignation. When he contested the elections held on 
May, 2013 and submitted his Nomination Papers, 
therefore, he was disqualified in terms of Article 
63(1)(k) of the Constitution and further having 
deliberately 
concealed 
material 
facts 
in 
his 
Nomination Papers by failing to disclose that he was 
in fact disqualified under Section 63(1)(k) of the 
Constitution and being a ghost employee he can 
hardly be considered to be honest in terms of Article 
63(1)(f) of the Constitution, hence, was not qualified 
in view of the aforesaid provisions of law. Reference, 
in this behalf, may be made to the judgment of this 
Court reported as Abdul Ghafoor Lehri (supra).  
CP.3131/2017 
37
34.  
Consequently, it is held that Respondent 
No.1 was not qualified to be and disqualified from 
being a Member of the Provincial Assembly of KPK at 
all material times, hence, was liable to be de-notified 
as such by the ECP. Furthermore, he was obliged to 
return all the benefits i.e. salary and other allowances 
received by him as a Member of the Provincial 
Assembly and also criminal proceedings as provided 
under the law are also directed to be taken against 
him. Therefore, the impugned judgment of the learned 
High Court dated 15.08.2017 needs to be set aside 
and the Order of de-notification issued by the ECP 
revived.  
  
The aforesaid are the reasons of our short Order 
dated 23.02.2018, which are reproduced hereunder 
for ease of reference: 
  
“ 
Barrister Qasim Wadood, learned 
Additional Advocate General, KPK, has 
filed in Court four sealed envelops along 
with a Register containing the documents 
which were sent to the Forensic Science 
Laboratory for comparison of signatures 
and thumb impression of the private 
Respondent, namely, Abdul Munim. The 
said documents are taken on record.  
 
  
2. 
The Bench will reassemble today 
after perusal of the said documents. 
 
CP.3131/2017 
38
  
 
Late Diary: 
  
3. 
For the reasons to be recorded later, 
this Civil Petition is converted into Appeal 
and the same is allowed. The impugned 
judgment 
dated 
15.08.2017 
of 
the 
learned Peshawar High Court, Peshawar, 
passed in Writ Petition No.1687-P of 
2017, is set aside. As a consequence 
whereof, the Order dated 19.04.2017 
passed by the Election Commission of 
Pakistan declaring election of Respondent 
No.1 as a Member of the Provincial 
Assembly, KPK from PK-88, Shangla-II as 
null and void and withdrawing his 
Notification as a Returned Candidate is 
revived. The salary and other allowances 
be recovered and criminal proceedings as 
provided under the law are also directed 
to be taken against him.” 
   
35.  
The original record made available in a 
sealed envelope by the learned Additional Advocate 
General, KPK be returned to him. 
 
 
 
 
      Judge 
 
 
     
 
 
 
 
      Judge 
 
 
 
Islamabad, the 
23rd February, 2018 
‘APPROVED FOR REPORTING’ 
 
   
 
 
 
 
      Judge 
Mahtab H. Sheikh/*