Syed MUHAMMAD ALI BOKHARI vs FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad

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Syed MUHAMMAD ALI BOKHARI VS FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad Ss. 140 & 151 [as amended by Elections (Amendment) Ordinance, 2024]---Constitution of Pakistan, Arts. 10A & 199---Constitutional petition---Maintainability---Election Tribunal---Appointment of retired Judges of High Courts---Transfer of election petitions---Petitioner was a returned candidate and his election was assailed by respondent in election petition---During pendency of election petition, on application filed by respondent, election petition was transferred from one Tribunal to the other---Petitioner assailed such order of transferas as well as appointment of retired Judges of High Courts as Election Tribunal by the Election Commission of Pakistan---Validity---Proper process was that a request should have been made in such regard to Presiding Officer for recusal from the case and the rest was left to the conscious of Judge, but since Presiding Officer was not Judge of High Court, normal principles was not applicable and "bias" might be a ground---Burden of proof of "bias" was heavy and mere wrong application of law and not granting adjournments or rejection of applications or making certain observations in the Court, was not a ground for "bias"---Election Commission of Pakistan proceeded with transfer application in haste without providing opportunity of filing affidavits and counter-affidavits/replies to allegation of "bias" or misapplication of law---Proper opportunity should have been granted to petitioner and failure on the part of Election Commission of Pakistan to grant such opportunity was in violation of Art. 10A of the Constitution---Election Commission of Pakistan is not a "judicial forum" nor even purely Executive; it is a Constitutional body, which has some quasi-judicial powers to perform while deciding certain issues---Power of transfer is supervisory and administrative in nature and has to be exercised after providing opportunity to everyone concerned---There was nothing on record to show that the same was done and in one of the writ petitions while allowing the transfer application even merits were touched and finding on the same was rendered, which was not the mandate of Election Commission of Pakistan---High Court found it appropriate for Election Commission of Pakistan to revisit the matter as it had authority and mandate to decide transfer application under S. 151 of Elections Act, 2017 and could also transfer petitions suo moto but had to give reasons for the same---High Court set aside transfer order passed by Election Commission of Pakistan as in application filed for transfer, all parties were to be heard but this was not done---High Court remanded transfer application to Election Commission of Pakistan for decision afresh.

Syed MUHAMMAD ALI BOKHARI vs FEDERATION OF PAKISTAN through Secretary, Ministry of Law and Justice, Islamabad Ss — 2025 PLD 48 ISLAMABAD

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