PESHAWAR: The Peshawar High Court on Thursday reserved its verdict in a writ petition filed by Pakistan Tehreek-e-Insaf (PTI) leader and Member National Assembly Sohail Sultan, challenging a reference sent by the Speaker regarding his alleged disqualification and a notice issued by the Election Commission of Pakistan (ECP).
The petition was heard by a two-member bench comprising Justice Syed Arshad Ali and Justice Muhammad Faheem Wali.Special Secretary Law Election Commission Arshad Khan, Deputy Director Law Khurram Shahzad, counsel for the complainant Sultan Muhammad Khan advocate, and counsel for the petitioner Barrister Yaseen Raza and Shamsul Hadi advocate appeared before the court.
Barrister Yaseen Raza submitted that Sohail Sultan was an MNA from Swat and that the ECP had initiated proceedings against him on the basis of a complaint alleging that he had previously served as a law officer in the Advocate General’s Office and had contested the election without completing the mandatory period.
He argued that no such objection was raised prior to the election, nor was his candidature challenged before the election tribunals. He contended that such objections could only be raised before the election, which no one did.
He pleaded that although the Speaker had sent a reference regarding the petitioner’s disqualification, the Speaker could only do so upon receipt of a complaint. He maintained that the present action against his client was unlawful, as objections relating to eligibility should have been raised before the election. According to the petitioner’s counsel, after the elections, the ECP could not reopen such matters.
Responding to the arguments, the special secretary Law informed the court that whenever a complaint was received against a member, the Speaker referred the matter to the ECP for examination.
Justice Syed Arshad Ali observed that the key questions were who was competent to declare a disqualification and whether the Speaker was empowered to send such a reference. He noted that the process begins with the Returning Officer, followed by the appellate tribunal and then the election tribunal.
Deputy Director Law Khurram Shahzad submitted that Article 63(1) of the Constitution was clear on the matter and that any person against whom a complaint was filed could be proceeded against. He added that the Speaker’s role was administrative in nature and cited a Lahore High Court judgment in support of his stance.
Additional Attorney General Sanaullah argued that at the time of submission of nomination papers, the petitioner was in the service of Pakistan. He submitted that government officers were required to complete a mandatory period of two, three or five years, as applicable, before contesting elections. He contended that at the time of the election, the petitioner was not eligible to contest.
Justice Arshad Ali remarked that the petitioner could have been declared ineligible at the time of submission of nomination papers, but two years had since elapsed. He questioned whether the petitioner could now be disqualified after having completed the required period, noting that anyone could have challenged his eligibility up to the election day.
He questioned whether disqualification could now be imposed after the petitioner had become a member and the stipulated period had elapsed.The AAG responded that when a complaint was received, the Speaker first examined it and then referred it to the ECP. He emphasized that the Speaker had not made any decision himself but had merely referred the matter to the ECP where it was now pending and should be decided by the Commission.
Counsel for the complainant, Sultan Muhammad Khan advocate, argued that at the time the petitioner contested the election, he was serving as an assistant advocate general, a fact which the petitioner himself had acknowledged. He submitted that the EC was empowered to examine both pre-and post-election matters and that it was incorrect to suggest that pre-election issues could not be examined after the polls.
