PESHAWAR: Khyber Pakhtunkhwa Assembly Speaker Babar Saleem Swati and a candidate in Senate by-election, Irfan Saleem on Thursday challenged legality of Election Commission of Pakistan (ECP) order about suspending the poll process before Peshawar High Court.
Swati and Saleem filed almost identical petitions in the high court, seeking declaration that the impugned order issued by a bench of ECP on April 21 and a subsequent notification issued the same day were illegal and unconstitutional.
A three-member bench of ECP had suspended the by-election on a Senate seat, for which polling was scheduled for April 23, following a petition filed by MPA of Pakistan Muslim League-Nawaz Jalal Khan. The said seat fell vacant as the then incumbent Murad Saeed was de-notified by the commission on March 25.
Both the petitioners requested the court to declare that a lawful vacancy arose pursuant to the de-notification of March 25, and the said de-notification remained unchallenged by an aggrieved person. They prayed the court to declare that the respondent (Jalal Khan) had no locus standi to file the application before ECP and the entire exercise undertaken by the commission was without any legal basis and lacked any constitutional authority.
They requested the court to set aside the impugned order and notification and directed ECP and provincial election commissioner of KP to proceed with the Senate by-election forthwith in accordance with law. The petitions on behalf of the speaker and Saleem were submitted by advocates Bashir Khan Wazir and Ali Gohar Durrani, respectively.
Irfan Saleem is the president of Pakistan Tehreek-i-Insaf, Peshawar district. He was candidate of the party for the vacant seat. The petitioners stated that the Senate seat from KP fell vacant consequent upon the de-notification of Murad Saeed by ECP through a notification on March 25, which remained unchallenged to date.
They stated that Mr Saeed was declared a proclaimed offender by an anti-terrorism court in Rawalpindi and pursuant to the decision an applicant Mohammad Aslam filed an application for his disqualification under Article 63(1) (h) of the Constitution.
They said that ECP issued de-notification of Murad Saeed after disqualifying him. They added that the said application or proceedings or the de-notification remained unchallenged till date. They stated that at pursuant to the said vacancy, ECP issued schedule for by-election strictly in accordance with law.
The petitioners stated that the ruling party in the province nominated Irfan Saleem, whose nomination papers were duly accepted and he was declared a contesting candidate by the returning officer on April 18, 2026.They contended that Jalal Khan, who was not an aggrieved person, filed an application before ECP, seeking suspension of the by-election on the alleged premise that no lawful vacancy had arisen.
The petitioners contended that Murad Saeed, who was de-notified, had not called into question his de-notification, nor did anyone on his behalf made any such application, calling for setting aside of the de-notification. They contended that ECP, without lawful justification and in excess of jurisdiction, entertained the said application and through the impugned order suspended the by-election process.
The petitioners contended that Article 224(5) of the Constitution mandated that a Senate vacancy must be filled within 30 days, and the impugned suspension was in clear violation of the said constitutional provision. They stated that the reasoning adopted by Jalal Khan was legally untenable, particularly insofar as it incorrectly linked oath-taking with the existence of membership, contrary to the constitutional framework.
They said that Article 223 of the Constitution demonstrated that election to a seat gave rise to legal consequences independent of oath-taking and Article 65 merely restricted a returned candidate from sitting or voting prior to oath, and didn’t negate the legal status arising from election.
