IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
 
PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ 
 
 
MR. JUSTICE UMAR ATA BANDIAL 
 
 
MR. JUSTICE FAISAL ARAB 
 
 
CIVIL APPEALS NO.508 AND 681 OF 2017 
AND CIVIL PETITION NO.1640 OF 2017 
(Against the judgments all dated 6.4.2017, of the 
Peshawar High Court, Peshawar passed in Election 
Appeals No.1-A/2016, 1-A/2015 and 2-P/2015 
respectively) 
 
 
1. 
 
Sardar Sher Bahadar Khan etc. Vs. 
Election 
Commission 
of 
Pakistan 
through 
Secretary, 
Election 
Commission, Islamabad etc. 
 
 
In C.A.508/2017 
2. 
 
Asghar 
Ali 
etc. 
Vs. 
Election 
Commission of Pakistan through Chief 
Election Commission, Islamabad etc. 
 
 
In C.A.681/2017 
3. 
 
Mst. 
Noor 
Jehan 
Vs. 
Election 
Commission 
of 
Pakistan 
through 
Secretary, Election Commission of 
Pakistan, Islamabad etc. 
 
 
In C.P.1640/2017 
For the appellant(s)/ 
petitioner(s): 
Sardar Muhammad Aslam, ASC 
Ch. Akhtar Ali, AOR 
(In C.A.508/2017) 
 
Qazi Muhammad Anwar, Sr. ASC 
Syed Rifaqat Hussain Shah, AOR 
(In C.A.681/2017) 
 
Mr. M. S. Khattak, AOR 
(In C.P.1640/2017) 
 
 
For the respondent(s): 
Ch. Aitzaz Ahsan, Sr. ASC 
Mr. Gohar Ali Khan, ASC 
(In C.A.508/2017) 
 
Mr. Kamran Murtaza, Sr. ASC 
(In C.A.681/2017) 
 
Not represented 
(In C.P.1640/2017) 
 
 
Date of hearing: 
22.9.2017 
… 
 
 
Civil Appeal No.508 of 2017 etc. 
-: 2 :-
JUDGMENT 
 
 
MIAN SAQIB NISAR, CJ.- These Civil Appeals with leave 
of the Court and the Civil Petition entail a common question of law, 
therefore, are being disposed of together. However, wherever there is 
some difference with regard to the facts or any subtle question 
relating to a legal proposition the same shall be accordingly 
highlighted.  
2. 
 
Leave in these appeals has been primarily granted (vide 
orders dated 18.4.2017 and 4.5.2017) to consider the following: - 
(1) 
what is the effect and application of Section 78A 
of the Khyber Pakhtunkhwa Local Government 
Act, 2013 (the Act of 2013) inserted vide Khyber 
Pakhtunkhwa 
Local 
Government 
(Third 
Amendment) Act, 2015, (the Amendment Act 2015) and 
whether it (Section 78A) shall apply retrospectively or 
prospectively; 
(2) 
whether M/s Ali Khan Jadoon and Sadar Waqar 
Nabi (in C.A. No. 508 of 2017) and Salahuddin and 
Samiullah (in C.A. No. 681 of 2017) and Fahim Khan (in 
CPLA. No. 1640 of 2017) were nominated by their 
respected party/party heads to contest the 
election for the Nazim and Naib Nazim of the 
concerned District Councils;  
(3) 
whether in the situation the appellants were 
bound to vote for the party-nominated candidates; 
(4) 
whether the appellants, who instead of voting on 
the direction of the party head, have contested the 
election themselves or have voted against party-
nominated candidates, have in effect defected in 
terms of the above noted provision of law; 
(5) 
whether the respective show cause notices, issued 
to the appellants/petitioners, were issued by the 
party/party head in accordance with the relevant 
provisions of law; and 
Civil Appeal No.508 of 2017 etc. 
-: 3 :-
(6) 
whether the Election Commission of Pakistan 
(ECP) was not properly constituted when it passed 
the impugned orders, as the ECP compromises of 
the Chief Election Commissioner of Pakistan 
(Chairman) 
and 
four 
Members 
while 
the 
impugned orders dated 25.01.2016 (in C.A. No. 
508/2017) and 29.10.2015 (in C.P. No.1640/2017) were 
passed by three Member Bench of ECP in which 
the Chairman and one of the Members did not 
participate. 
3. 
 
The brief facts of the case in relation to Civil Appeal 
No.508/2017 are that Sardar Sher Bahadur Khan (appellant No.1) was 
elected as a Member of Union Council Kehal (Urban), District 
Abbottabad as an independent candidate, while Shaukat Ali Tanoli 
(appellant No.2) was elected as Member of District Council on the ticket 
of Pakistan Tehreek-e-Insaaf (PTI). The next phase of the Local Bodies 
elections was the election of District Nazim and District Naib Nazim. 
After the elections, appellant No.1 joined PTI on 25.06.2015 and 
thus, at the relevant point of time, when the schedule for the election 
of the Nazim and Naib Nazim was notified on 19.08.2015, both the 
appellants were the members of PTI. On 24.08.2015, an amendment 
was introduced in the Act of 2013 through the Amendment Act of 
2015 whereby Section 78A was inserted therein, which provided the 
consequences of violation of party direction in the shape of defection. 
M/s Ali Khan Jadoon and Sadar Waqar Nabi were nominated by PTI 
as their candidates for Nazim and Naib Nazim; however, appellants 
No.1 and 2 contested the elections of District Nazim and Naib Nazim 
as independent candidates instead of casting their vote in favour of 
the party nominated candidates. Appellants No.3 to 21, who were 
also belonged to PTI, cast their votes in favour of appellants No.1 and 
Civil Appeal No.508 of 2017 etc. 
-: 4 :-
2 against the party direction. Resultantly, appellants No.1 and 2 won 
the election. All the appellants were issued show cause notices on 
03.09.2015, to which they submitted their respective replies. 
However, all of them were declared to have defected by invoking the 
provision of Section 78A ibid vide letters dated 14.9.2015 and the 
matter was sent to the ECP for confirmation. The ECP affirmed the 
defection of all the appellants vide order dated 25.1.2016. The said 
order was challenged by the appellants before the learned Peshawar 
High Court through an Election Appeal, which was dismissed on 
6.4.2017 by means of the impugned judgment. 
4. 
 
In Civil Appeal No.681/2017, the facts are that 
appellants No.1 to 4 were elected on general seat as Member of 
District Council Laki Marwat, whereas appellant No.5 was elected on 
reserved seat on the party ticket of Jamiat-e-Ullema Islam Fazal ur 
Rehman Group (JUI (F)). In the next round of election for District 
Nazim/Naib Nazim from the said District, there was adjustment 
between JUI(F) and ANP, however, the appellants cast their vote in 
favour of candidates of opposite coalition (PPP and PTI) which resulted 
in the defeat of candidates nominated by JUI(F). Resultantly, 
respective show cause notices were issued to the appellants on 
07.09.2015 for having defected in terms of Section 78A ibid. 
Respective replies to the show cause notices were submitted by the 
appellants; however, the declaration of defection was made against 
them on 16.9.2015 and the matter was referred to the ECP for 
confirmation. The ECP confirmed said declarations vide order dated 
03.11.2015 (Note: in this case the full strength of ECP has rendered the decision, 
therefore, the question of its composition is not in issue). Be that as it may, the 
appellants challenged the order of ECP before the learned High Court 
Civil Appeal No.508 of 2017 etc. 
-: 5 :-
through an Election Appeal, which was dismissed vide the impugned 
judgment.  
5. 
 
The facts of Civil Petition No.1640 of 2017 are that the 
petitioner was elected as Female Councilor of Tehsil Council Lahor, 
District Swabi on the party ticket of PML(N). In the next phase of 
elections for the seat of Tehsil and District Nazim/Naib Nazim, 
statedly there was an adjustment between PML(N), JUI(F) and ANP; 
as such, one Faheem Khan (belonging to PML(N)) and one Muhammad 
Asad (belonging to ANP) were nominated by PML(N) for the seat of Tehsil 
Nazim and Naib Nazim. However, the petitioner in violation of party 
direction cast her vote in favour of rival candidate belonging to PTI, 
instead of her own party candidate. Thus, a show cause notice was 
served upon the petitioner, but she did not make any reply thereto; 
resultantly, the declaration of defection was issued by the nominee of 
the party head vide letter dated 11.9.2012 and the copy whereof was 
transmitted to ECP for confirmation. The ECP confirmed the 
declaration of defection of the petitioner. The said decision was 
challenged by the petitioner before the learned High court through an 
Election Appeal which was dismissed vide the impugned judgment.  
6. 
 
First of all we shall take up the question of applicability 
of section 78A ibid, retrospectively or prospectively, and its effect on 
the elections in issue. In this regard it is to be noted that under the 
provisions of the Act, 2013, election schedule was announced on 
19.8.2015 for the elections to be held on 30.8.2015. In the meantime, 
on 24.08.2015, Section 78A ibid, was introduced in the Act of 2013 
vide the Amendment Act, 2015, which reads as under:-  
Civil Appeal No.508 of 2017 etc. 
-: 6 :-
“78A. Disqualification on grounds defection.---- (1) If a 
member of a party composed of a single political party in a 
Council- 
 
(a) 
resigns from membership of his political 
party or joins another party in a Council; or 
 
(b) 
votes or abstains from voting in a Council 
contrary to any direction issued by the 
political party to which he is a member, in 
the Council, in relation to- 
 
(i) 
election of the Nazim or Naib Nazim 
in a Council; or 
 
(ii) 
a vote of confidence or a vote of no-
confidence ; or 
 
(iii) 
approval of annual budget,- 
 
He may be declared in writing by the Party Head to have 
defected from the political party, and the Party Head may 
forward a copy of the declaration to the Presiding Officer 
of the concerned Council and the Chief Election 
Commissioner and shall similarly forward a copy thereof to 
the member concerned: 
 
 
Provided that before making the declaration, the 
Party Head shall provide such member with an opportunity 
to show cause as to why such declaration may not be made 
against him. 
 
Explanation: For the purpose of this section,- 
 
(i) 
“Council” means the Town Council, Tehsil 
Council or the District Council, as the case 
may be; 
 
Civil Appeal No.508 of 2017 etc. 
-: 7 :-
(ii) 
“Party Head” means any person, by 
whatever name called or declared as such 
by the Party and included the nominee of the 
Party Head ; and 
 
(iii) 
“Presiding Officer” means the Naib Nazim 
of the concerned Council. 
 
 
 
(2) 
A member of a Council shall be deemed to 
be a member of a political party if he, having been elected 
as a candidate or nominee of a political party which 
constitutes the party in the concerned Council or has 
become a member of such political party as per provision 
of clause (a) of sub-section (7) of section 74 of this Act. 
 
 
(3) 
Upon receipt of the declaration under sub-
section (1), the concerned Presiding Officer, shall within 
two days refer, and in case he fails to do so it shall be 
deemed that he has referred, the declaration to the Chief 
Election Commissioner, who shall lay the declaration 
before the Election Commission for its decision thereon 
confirming the declaration or otherwise within thirty days 
of its receipt by the Chief Election Commissioner. 
 
 
(4) 
Where the Election Commission confirms 
the declaration, the member referred to in sub-section (1) 
shall cease to be a member of the concerned Council and 
his seat shall become vacant. 
 
 
(5) 
Any party aggrieved by the decision of the 
Election Commission may, within thirty days, prefer an 
appeal to the High Court which shall decide the matter 
within sixty days from the date of the filing of the appeal. 
 
 
(6) 
Nothing contained in this section shall apply 
to the Nazim or Naib Nazim of the Council.” 
 
Civil Appeal No.508 of 2017 etc. 
-: 8 :-
7. 
 
It is the stance of the appellants that the said 
amendment would not have any retrospective effect, as nothing in 
this regard has been specifically mention therein; and therefore, it is 
not applicable to the elections in issue. It has been argued that the 
process of election had commenced with the notification dated 
19.8.2015, when the electorates were called upon to elect their Nazim 
and Naib Nazim and therefore, the law applicable to the process of 
election, which was in force at the relevant point of time, shall be 
attracted. In support of the said arguments, reliance has been placed 
to the cases of Adnan Afzal Vs. Capt. Sher Afzal (PLD 1969 SC 
187), Muhammad Ishaq Vs. The State (PLD 1956 SC 256 at 257), 
Commissioner of Income-Tax Karachi Vs. Eastern Federal Union 
Insurance Co. (PLD 1982 SC 247 at 251, para 7), Senior Member 
BOR and others Vs. Sardar Bakhsh Bhutta and another (2012 
SCMR 864 at 866), Mst. Sarwar Jan and others Vs. Mukhtar 
Ahmad and others (PLD 2012 SC 217 at 221B) and the Province 
of Sindh through Chief Secretary, etc. Vs. Muttahida Qaumi 
Movement, etc. (Civil Appeals No.760 to 765/2016).  
8. 
 
Conversely, it has been argued on behalf of the 
respondents that Section 78A ibid was added as a measure for 
preventing horse-trading and to enforce political discipline. Thus, the 
objective of the insertion of Section 78A ibid is based upon public and 
national interest. The said amendment, thus, would operate 
prospectively covering the elections on 30.08.2015. By referring to 
Article 63A of the Constitution, parity has been drawn to the facts 
and circumstances of the present case. In this regard reliance has 
been placed to the judgments of this Court reported as Pir Sabir 
Shah Vs. Shad Muhammad Khan, Member Provincial Assembly, 
Civil Appeal No.508 of 2017 etc. 
-: 9 :-
N.F.W.P. and another (PLD 1995 SC 66, para 109, pages 24 to 
38), Wuklala Mahaz Barai Tahafaz Dastoor and another Vs. 
Federation of Pakistan and others (PLD 1998 SC 1263), District 
Bar Association, Rawalpindi and others Vs. Federation of 
Pakistan and others (PLD 2015 SC 401, paras 164 to 173). 
9. 
 
We have considered the respective submissions made 
and the case-law referred to by both the sides and are of the view 
that in the facts and circumstances of the instant case, the issuance 
of schedule has nothing to do with the law pertaining to casting or 
abstaining from casting a vote in terms of Section 78A ibid because 
the election had to take place on 30.8.2015 and on the same day 
nomination papers had to be filed. There was no situation that the 
nomination papers were filed before the said date or even before the 
amendment, introducing Section 78A ibid. It is well settled that a 
statute or any amendment thereto ordinarily operates prospectively 
unless, by express enactment or necessary intendment, retrospective 
operation has been given to it. Reference in this behalf may be made 
to the case reported as Gul Hasan & Co. and 5 others Vs. Allied 
Bank of Pakistan (1996 SCMR 237), Pakistan Steel Mills 
Corporation Vs. Muhammad Azam Katper and others (2002 
SCMR 1023), Zakaria H.A. Sattar Bilwani and another Vs. 
Inspecting Additional Commissioner of Wealth Tax, Range-II, 
Karachi (2003 SCMR 271), Zila Council, Sialkot through 
Administrator Vs. Abdul Ghani Proprietor Iqbal Brothers, Sialkot 
and others (PLD 2004 SC 425) and Muhammad Tariq Badr and 
another Vs. National Bank of Pakistan and others (2013 SCMR 
314). Considering the purpose and object of the above said 
amendment, namely, to curb the mischief of horse-trading and 
Civil Appeal No.508 of 2017 etc. 
-: 10 :-
defection, it is clear that the law was amended and the said section 
was introduced just few days prior to election with the clear intention 
to apply it to the future elections to be held after 30.8.2015, and a 
necessary intendment of the legislature can be validly drawn that it 
was meant to apply to the forthcoming elections to be held on 
30.8.2015. Moreover, by virtue of the said amendment, no 
substantive rights of the appellants have been infringed, because not 
only the voting had to take place on 30.8.2015 but also the 
nomination papers were to be filed on the said date. It is not the case 
of the appellants that pursuant to the schedule they had already 
announced their candidature by filing the nomination papers. 
10. 
 
Now we shall consider the question with regard to the 
validity of the orders dated 25.01.2016 (in C.A. No. 508/2017) and 
29.10.2015 (in C.P. No.1640/2017) which have been passed by a three 
Member Bench of ECP, in which the Chairman and one of the 
Members did not participate. It has been argued on behalf of the 
appellants (in Civil Appeal No.508/2017) that when the order for defection of 
the appellants was passed, the ECP was not properly constituted in 
terms of Article 218 of the Constitution, in that, the ECP comprises of 
five members (the Chairman and four Members) while instead of the full 
strength the references in question were heard and decided by three 
Members. It has been further argued that a somewhat similar 
situation, when the ECP was not properly constituted at the time of 
conducting election to the Senate, this Court declared such elections 
to be void. Reliance in support of his contention is placed upon a 
judgment reported as Imran Khan and others Vs. Election 
Commission of Pakistan and others (2012 SCMR 448 at 452, 
para 2). 
Civil Appeal No.508 of 2017 etc. 
-: 11 :-
11. 
 
On the other hand it was argued on behalf of the 
respondents that as per Section 8(2) of the Election Commission 
Order, 2002 (Order, 2002) there is no bar or prohibition to the effect 
that a matter cannot be heard by a lesser number of Members of 
ECP, if the Chairman/Member(s) either recuses himself from 
participation or is otherwise on leave. In this case (C.A. No.508/2017) the 
Chairman of ECP was from the same Zila, therefore, he recused; 
whereas, the one of the Members, namely, Mr. Roshan Esani, was 
unwell and thus could not sit on the Bench at the time of hearing.  
12. 
 
Before deciding the fate of the orders of the ECP 
impugned herein, it is appreciate to consider the constitutional and 
legal provisions which deal with the constitution and functioning of 
the ECP. In this regard, Article 218(2) of the Constitution is relevant 
which provides, inter alia, that the Election Commission of Pakistan 
shall consist of the Commissioner, who shall be the Chairman of the 
Commission, and four members, each of whom has been a Judge of a 
High Court from each province. Though Article 219 of the 
Constitution prescribes the duties of the ECP and Article 220 of the 
Constitution mandates the executive authorities to assist the ECP in 
the discharge of its functions; however, mode and procedure to be 
adopted by the ECP has not been elaborated in the Constitution, 
which has been prescribed in the Order, 2002. In this regard, Section 
8 of the Order, 2002 is relevant, sub-Section (1) whereof provides that 
all decisions of the ECP shall be expressed in terms of the opinion of 
the majority of its members, including the Chairman, and sub-
Section (2) thereof provides that no election conducted, or other 
action taken or thing done, by the ECP shall be invalid or called in 
question only on the ground of the existence of a vacancy therein or 
Civil Appeal No.508 of 2017 etc. 
-: 12 :-
of the absence of any member from any meeting thereof. From the 
perusal of the above provisions, it is clear that the ECP is comprised 
of five members but at nowhere it has been provided that any 
decision of the ECP shall be taken by all of its five members. Contrary 
to it, in section 8(2) of the Order, 2002 any order passed by the ECP 
by lesser members of its total strength has been protected by 
specifically proving that no action taken or thing done by the ECP 
shall be invalid or called in question only on the ground of the 
existence of a vacancy therein or of the absence of any member from 
any meeting thereof. The ratio of the case reported as Imran Khan’s 
case (supra) is not applicable upon the instant case, because at the 
time of holding of election to Senate challenged therein, the ECP was 
not properly constituted and this Court though pointed out such 
defect but restrained itself from declaring such election to be null and 
void, rather provided an opportunity to the Parliament to cure that 
defect, which was thereafter cured by virtue of the 21st Amendment 
in the Constitution. Thus, we hold that the orders of the ECP dated 
25.01.2016 (in C.A. No. 508/2017) and 29.10.2015 (in C.P. No.1640/2017), 
passed by three of its members, whereby the declaration of defection 
of appellants/petitioner was confirmed, were validly passed.  
13. 
 
Other question which requires consideration is that who 
has the authority, within a political party, to nominate a candidate 
for the seats of Nazim/Naib Nazim and issue direction to its members 
to cast votes in favour of that candidate, and in case of violation of 
such direction, can issue a show cause notice and then pass the 
declaration of defection against such member. The answer to those 
question has to be found in Section 78A ibid, wherein it has been 
provided inter alia that if a member of a party votes or abstains from 
Civil Appeal No.508 of 2017 etc. 
-: 13 :-
voting in a Council contrary to any direction issued by the political 
party to which he is a member, in relation to election of the Nazim or 
Naib Nazim in a Council; he may be declared in writing by the Party 
Head to have defected from the political party, and the Party Head 
may forward a copy of the declaration to the Presiding Officer of the 
concerned Council and the Chief Election Commissioner. It is also 
provided that before making the declaration, the Party Head shall 
provide such member with an opportunity to show cause as to why 
such declaration may not be made against him. However, as per 
definition clause, the “Party Head” means any person, by whatever 
name called or declared as such by the Party and included the 
nominee of the Party Head.  Thus, the authority to issue show cause 
notice, to consider the reply thereto and to declare a member to have 
defected, lies with the Party Head; however, the said authority may 
also be vested with the nominee of the Party Head. It is also evident 
from the above provision that every member of a political party is 
bound to follow the directions issued by the political party/Party 
Head, not only with regard to casting the vote or to abstain from 
voting in the election of the Nazim or Naib Nazim, but also regarding 
vote of confidence or no-confidence and the approval of annual 
budget.  
14. 
 
Having decided the questions of law involved in the 
matter, now we shall take up each case independently and decide it 
according to its own facts. 
15. 
 
In Civil Appeal No.508/2017 at the time of issuance of 
schedule for the election of Nazim and Naib Nazim which was notified 
on 19.08.2015, both the appellants were the members of PTI. As per 
schedule, the election was to be held on 30.8.2015, however, in the 
Civil Appeal No.508 of 2017 etc. 
-: 14 :-
meantime, on 24.08.2015, Section 78A ibid was added. As per 
relevant rules, the election was to be conducted “by open division”. 
Appellants No.1 and 2 contested the elections of District Nazim and 
Naib Nazim as independent candidates against M/s Ali Khan Jadoon 
(Nazim) and Sadar Waqar Nabi (Naib Nazim), who had been awarded party 
ticket by PTI. In the elections, appellants No.1 and 2 succeeded 
having secured 41 votes, whereas, the nominated candidates of PTI 
lost having secured 33 votes. It may be relevant to state that the 
complete house comprised of 77 members, out of which three 
members for certain reasons could not cast their vote, as such, only 
74 members of the electorate voted in the election. On 02.09.2015, 
respondent No.2 was nominated by Imran Khan, Chairman of PTI to 
take action against all the twenty-one appellants under the 
provisions of Section 78A ibid. On 03.09.2015, respondent No.2 being 
the nominee of the Party Head issued show cause notices not only to 
appellants No.1 and 2, who contested the election of District 
Nazim/Naib Nazim but also to appellants No.3 to 21, who voted for 
appellants No.1 and 2 against the party direction, despite admittedly 
being elected as members of the Union Council on PTI ticket or 
becoming members of PTI prior to the issuance of the election 
schedule. Appellant No.1 in his reply has stated that he was an 
elected President of PTI from District Abbottabad but was not 
awarded party ticket to contest the elections of Member Union 
Council and thus, contested election as an independent candidate; in 
the election of Zila Nazim Abbottabad, when PTI announced the 
names of M/s Ali Khan Jadoon and Sardar Waqar Nabi, but most of 
the PTI members did not want to cast their votes in favour of party 
nominated candidates, therefore, he and respondent No.2 decided to 
Civil Appeal No.508 of 2017 etc. 
-: 15 :-
contest election against the candidates of PTI. Somewhat similar 
reply was submitted by other appellants. However, their replies were 
not accepted and vide letter dated 14.9.2015, all the 21 appellants 
were declared by the nominee of the party head to have defected 
under section 78A ibid and a reference was filed with the ECP. The 
ECP vide order dated 25.1.2016 affirmed the declaration of defection 
of all the appellants.  
16. 
 
It is argued on behalf of the appellants that no specific 
direction, as is required under the noted section, was ever issued to 
the appellants to vote for the nominated candidates of PTI or to 
abstain the appellants No.1 and 2 from contesting the election 
against the candidates nominated by the party i.e. PTI. It is further 
argued that merely on account of the nomination of candidates by 
the party, it cannot be assumed that a party direction has been 
issued to the appellants No.1 and 2 not to contest the elections and 
to appellants No.3 to 21 not to vote in favour of appellants No. 1 and 
2, who were also members of PTI. It is submitted that the mere 
issuance of a ticket to other candidates would not be tantamount to a 
direction within the purview of Section 78A (ibid).  
17. 
 
Responding to the above, Mr. Aitzaz Ahsan, learned 
counsel for the respondents has submitted that the nomination 
papers were to be filed on the election day i.e. 30.8.2015 and on the 
said date M/s Ali Khan Jadoon and Sadar Waqar Nabi had not been 
nominated by PTI as the party candidates, as is clear from the ticket 
issued to them, which is available on record. In this regard reference 
has also been made to the reply to the show cause notice submitted 
by the appellants, wherein they categorically admitted that the party 
ticket was granted to M/s Ali Khan Jadoon and Sadar Waqar Nabi 
Civil Appeal No.508 of 2017 etc. 
-: 16 :-
but their case is that it had been done by political maneuvering and 
without consultation with the local leadership of PTI. It is also argued 
that the defection of the appellants is justified on the basis of the 
allegations leveled against them because appellants no.1 and 2 
contested had contested the election as independent candidates 
against the candidates nominated by the party and other appellants 
cast their vote in their favour, which was not only against the interest 
of the party but also the party directions. According to him the show 
cause notice was validly issued by Mr. Fazal Muhammad Khan, 
Provincial Organizer KPK as he was a nominee of the Party Head 
(Imran Khan) vide notification dated 02.9.2015.  
18. 
 
We have considered the documentary evidence available 
on record as also the respective contentions of the parties. The 
elections of Nazim/Naib Nazim were scheduled to be held on 
30.8.2015 and on the same date the nomination papers were to be 
filed. However, prior to that date, the party ticket was issued to M/s 
Ali Khan Jadoon and Sadar Waqar Nabi and this fact was in the 
knowledge of all the members of PTI and there is no dispute between 
the parties to that effect. Even in the reply to the show cause notice, 
appellant No.1 has admitted that the party ticket was issued to one 
Ali Khan Jadoon for the seat of Nazim, however, his defence was that 
the past conduct of the said person was not appreciable therefore  
appellant No.1 informed the party leadership that the said person 
should not be given party ticket, but despite that the ticket was 
maneuvered by the local leadership in his favour; as such, many of 
the PTI members were not willing to vote for him, thus, appellant 
No.1 opted to contest election against him (party nominated candidate). The 
nominee of the party head issued the declaration of defection of 
Civil Appeal No.508 of 2017 etc. 
-: 17 :-
appellant No.1 vide letter dated 14.9.2015 on the ground that in 
sheer disobedience and violation of PTI’s decision and direction to 
support, assist and vote for PTI’s ticket holder and candidate for the 
office of District Nazim and Naib Nazim appellant No.1 himself 
submitted the nomination papers as an independent candidate 
against the candidate nominated by the party and also cast his vote 
in favour of rival candidate for the seat of Naib Nazim. The other 
appellants also did not deny the fact that M/s Ali Khan Jadoon and 
Sadar Waqar Nabi were nominated by the party and despite that they 
cast their vote in favour of rival candidates i.e. respondents No.1   
and 2. Considering the contentions of both the sides as well as the 
available record we are convinced that M/s Ali Khan Jadoon and 
Sadar Waqar Nabi were duly nominated by the PTI for the seats of 
Nazim and Naib Nazim and this fact was well in the knowledge of all 
the appellants; therefore, in terms of Section 78A ibid were bound to 
cast their vote in favour of the party nominated candidates. When 
they failed to follow the party directions, to cast vote in favour of 
party nominated candidates, they have to suffer the consequences of 
Section 78A ibid to be declared to have defected from the party. As we 
have already held in the preceding paragraphs that any order passed 
by a bench of ECP comprising lesser number of members shall not be 
void on this score alone, it is therefore held that the order dated 
25.1.2016 passed by three members of ECP whereby declaration of 
defection of all the appellants was upheld, was validly passed. Thus, 
Civil Appeal No. 508 of 2017 is dismissed.  
19. 
 
In Civil Appeal No.681/2017, all the appellants were 
elected as Members of Union Council on the party ticket of JUI (F), 
but in the next round of election for District Nazim/Naib Nazim for 
Civil Appeal No.508 of 2017 etc. 
-: 18 :-
the said District, they cast their vote in favour of candidates of 
opposite coalition (PPP and PTI) which resulted in the defeat of 
candidates nominated by JUI(F). The show cause notices were issued 
to the appellants on 07.09.2015 by Moulana Fazal-ur-Rehman, the 
party head of JUI(F), asserting therein that instead of voting for the 
candidates by the party, they (the appellants) in fact voted for the 
candidate of opposite coalition and, therefore, have defected in terms 
of Section 78A ibid. Reply to the show cause notices was submitted 
by the appellants. Thereafter, the declaration of defection was made 
by the Party head (Moulana Fazal-ur-Rehman), the head of the JUI(F) on 
16.9.2015 and the matter was referred to the ECP through a 
reference which (ECP) allowed the same vide impugned judgment 
dated 03.11.2015 (Note: in this case the full strength of ECP has rendered the 
decision, therefore, the question of its composition is not in issue). Be that as it may, 
the appellants filed an Election Appeal against that order before the 
learned High Court which was dismissed through the impugned 
judgment.  
20. 
 
Qazi Muhammad Anwar, learned ASC appearing for the 
appellants, while referring to paragraph No.6 of the impugned 
judgment of the learned High Court, has argued that the learned 
High Court has admitted that the appellants have not voted for the 
candidate of the other side; besides, it is not established on the 
record whether the JUI(F) had in fact boycotted the election and 
whether any direction was issued in terms of Section 78A ibid 
directing the appellants to refrain from voting for any other 
candidate. According to him there was an adjustment between JUI(F), 
ANP and PPP in the entire province of KPK and the Provincial 
President of JUI(F) had appealed all the members to support the 
Civil Appeal No.508 of 2017 etc. 
-: 19 :-
candidate of PPP. Further, on the election day, M/s Salahuddin Khan 
and Samiullah, the candidates nominated by JUI(F) for the seats  of 
Nazim and Naib Nazim announced boycott from the election, as such, 
the appellants had no other option except to cast their vote in favour 
of candidate of coalition partner, i.e., PPP. It is also argued that the 
show cause notice did not meet the requirement of Section 78A ibid 
for the reason that when the declaration was made by Moulana 
Fazal-ur-Rehman on 16.9.2015, allegedly he was on Hajj and 
therefore, such declaration is not valid in law (in lukewarm manner it is 
alleged to be a forged document). 
21. 
 
In response, Mr. Kamran Murtaza, learned ASC for 
respondent No.3 has submitted that there is no force in the allegation 
that the declaration of defection of the appellants was a forged 
document or not signed by the party head as he had proceeded to 
perform Hajj, inasmuch as, the letters were signed on 16.9.2015 by 
the party head and on the same day after signing the same (letters) he 
proceeded for Hajj. He further submitted that Salahuddin Khan 
(Nazim) and Samiullah (Naib Nazim) were nominated candidates of JUI(F) 
and when they announced boycott the appellants should have 
refrained from casting their vote in favour of any other candidate. He 
has further submitted that the party had nominated M/s Salahuddin 
Khan and Samiullah as its candidates for the seats of Nazim and 
Naib Nazim, therefore, the appellants were bound to follow the party 
direction to cast vote in their favour. Inasmuch as, when the 
nominated candidates had boycotted the election, the appellants were 
bound to abstain from voting in favour of rival candidate.   
22. 
 
Learned counsel has also made reference to Chapter VIII 
of the KPK Local Councils (Conduct of Elections) Rules, 2014 
Civil Appeal No.508 of 2017 etc. 
-: 20 :-
(hereinafter referred to as “the Rules, 2014”). At this stage, it is appropriate to 
consider the scope of the Rules, 2014 with regard to the conduct of 
the election of Local Government. As per Rule 67 of the Rules, 2014, 
the elections of the Nazim/Naib Nazim shall be conducted in the first 
meeting of the Tehsil Council, Town Council or District Council, as 
the case may be, without any debate. For that purpose, the 
procedure has been provided in sub-Rule (2) thereof, in that, any 
member may propose or second the name of any member who, in his 
opinion, commands the confidence of the majority of the members of 
the council, on a nomination paper in Form XXXI; and every 
nomination paper shall be delivered by the candidate or his proposer 
or seconder to the secretary of the Local Council by 1300 hours, on 
the day fixed for the ascertainment. Thereafter, the election of Nazim 
is to be conducted as per Rule 70 thereof, by an open division, and 
the candidate who secures the support of the majority of the 
members of the Local Council shall be declared to be the member 
commanding the confidence of the majority of the members of the 
Local Council and administer him oath of office in the manner 
provided in the Schedule-II thereof. As per Rule 71 thereof, the 
election of Naib Nazim shall be conducted in the like manner. 
However, there is no requirement that the election of Nazim/Naib 
Nazim shall be conducted on party basis or a party ticket shall be 
attached with the nomination Paper. The same is also evident from 
the nomination papers of M/s Salahuddin Khan (Nazim) and Samiullah 
(Naib Nazim) produced in Court, wherein neither the party affiliation 
has been mentioned nor is there any column for that purpose.  
23. 
 
Coming to the facts of instant appeal, it is to be noted 
that though the candidates were nominated by the party head of 
Civil Appeal No.508 of 2017 etc. 
-: 21 :-
JUI(F) but at the relevant point of time i.e. on the election day, they 
declared boycott from the election. Therefore, notwithstanding the 
fact that whether there was any specific or implied direction issued 
by the party head to cast the vote in favour of party nominated 
candidate or not, the same (direction) even if issued became redundant 
when the party nominated candidates boycotted the election. In the 
show cause notice it was alleged that the appellants cast their votes 
against the party candidates as such have defected in terms of 
Section 78A ibid. In the reply thereto, it was specifically mentioned by 
appellant No.1 has stated that the future plan and the party policy 
regarding the election of Nazim/Naib Nazim was not clear, even 
certain meeting in that regard were also conducted; at the time of 
voting only five votes were cast be the members of JUI(F) and then at 
once they left the house; in those circumstances, in absence of 
direction from the party leadership, they cast their votes in favour of 
PPP candidate to avoid the dissolution of the house. It was further 
stated that appellant No.1 was ready to take oath that no member of 
party issue directions or information regarding casting the vote. The 
similar stance was taken by the other appellants in their respective 
replies. In the circumstances, when the appellants had specifically 
denied the issuance of party instructions, especially when the party 
nominated candidates had boycotted the election, it was incumbent 
upon the respondent to prove through sound evidence that the 
necessary direction was issued by the party head or his nominee to 
vote in favour of certain candidate or to refrain from casting their 
vote. When we asked the learned counsel for respondent No.3 to 
provide any credible evidence to establish that fact, he could not 
produce any letter issued in this regard except producing copy of the 
Civil Appeal No.508 of 2017 etc. 
-: 22 :-
nomination forms of Salahuddin Khan (Nazim) and Samiullah (Naib 
Nazim) to contend that they were nominated candidates of JUI(F). 
However, as noted above, neither the nomination papers contained 
any column for mentioning the party affiliation nor this has been 
mentioned in the nomination forms produced by the learned counsel. 
When confronted with this situation, the learned counsel candidly 
conceded that there is no written proof that the direction was issued, 
however, submitted that such direction was communicated verbally 
to the appellants. Even no a single affidavit has been produced by the 
party leadership to produce that when, how and who communicated 
the verbal direction to the appellants. We are therefore not persuaded 
to accept the stance of the learned counsel. Thus, it is held that, in 
absence of specific direction of the party head with regard to 
abstaining from casting the vote, the appellants have not defected the 
party, as such, the impugned order dated 6.4.2017 is not 
sustainable. Resultantly, declaration of their defection dated 
16.9.2015, upheld by ECP vide order dated 3.11.2015, is declared 
void. Civil Appeal No.681 of 2017 is therefore allowed.   
24. 
 
In Civil Petition No.1640 of 2017, the petitioner was 
elected as Female Councilor on the party ticket of PML(N), but in the 
elections for the seat of Tehsil and District Nazim/Naib Nazim for the 
said District, she in violation of party direction cast her vote in favour 
of rival candidate belonging to PTI instead of her own party 
candidate. Thus, a show cause notice was served upon the petitioner 
by the nominee of PML(N). It was categorically stated in the show 
cause notice that specific directions were issued to the petitioner to 
cast her vote in favour of candidate of PML(N) for the seat of Tehsil 
Nazim and candidate of coalition party (ANP) for the seat of Tehsil 
Civil Appeal No.508 of 2017 etc. 
-: 23 :-
Naib Nazim; in this regard she was served with a notice to follow the 
party directions and take oath in this regard, but she remained 
absent on 29.8.2015 at the time of taking oath, and ultimately, she  
cast her vote in favour of PTI candidate for the seat of Tehsil Nazim 
and disloyal candidate of JUI(F) for the seat of Tehsil Naib Nazim. The 
show cause notice was served upon the petitioner through registered 
AD but she did not make any reply thereto; resultantly, the 
declaration of defection was issued vide letter dated 11.9.2012 by the 
nominee of the party head and the copy whereof was transmitted to 
ECP for confirmation. A three member Bench of ECP, after providing 
the opportunity of hearing to the petitioner, vide order dated 
29.10.2015, confirmed the declaration of defection of the petitioner. It 
is to be noted that ECP in the said order specifically mentioned that 
the petitioner appeared in person and admitted all the facts narrated 
in the letter dated 11.9.2015; she candidly admitted having voted for 
the candidate of PTI, which was also confirmed from the register for 
maintaining record of support extended to the respective candidates. 
There is no dispute that there was no party direction by the party 
head or his nominee to vote in favour of party nominated candidate; 
rather, it is clear from the contents of show cause notice, which were 
not denied by the petitioner through reply or before the ECP, that 
directions were issued to the petitioner to cast her vote in favour of 
party nominated candidate and was also served with a notice to 
follow the party directions and take oath in this regard. But despite 
all that, she cast her vote in favour of in favour of rival candidate, 
which clearly entails the consequences entailed in Section 78A ibid of 
defection. Thus, no case is made out to interfere in the  
Civil Appeal No.508 of 2017 etc. 
-: 24 :-
judgment impugned in the instant petition. The petition is therefore 
dismissed. 
25. 
 
For the foregoing, Civil Appeal No. 508 of 2017 and Civil 
Petition No. 1640 of 2017 are dismissed; whereas, Civil Appeal No. 
681 of 2017 is allowed. 
 
 
 
CHIEF JUSTICE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Announced in open Court 
on 20.12.2017 at Lahore 
Approved For Reporting 
Waqas Naseer/* 
 
 
 
 
 
CHIEF JUSTICE 
