PESHAWAR: The Peshawar High Court on Wednesday declined to provide relief to three Pakistan Tehreek-i-Insaf leaders, including Shibli Faraz and Omar Ayub Khan — the then leader of the opposition in the Senate and National Assembly, respectively — against their disqualification by the Election Commission of Pakistan unless they surrendered before the relevant court.

A bench consisting of Justice Syed Arshad Ali and Justice Mohammad Faheem Wali also vacated multiple stay orders issued earlier wherein the ECP was directed not to proceed further on its impugned notifications of disqualifying the three leaders — Shibli Faraz, Omar Ayub and then MNA from Chitral Abdul Lateef.

It also recalled the stay orders restraining the Senate chairman and NA speaker from taking any further action on their respective notifications of declaring the slots of leader of the opposition in the Senate and the NA vacant.

The bench decided to adjourn sine die (for indefinite period) five petitions filed by the three petitioners, enabling them to first surrender before the competent court.

Orders them to surrender before relevant court, adjourns their pleas sine die

“Upon doing so, they may move an appropriate application for the resurrection/revival of these petitions.

As a corollary to the above, by adjourning the petitions sine die, the interim relief granted to the petitioners vide orders dated 01.08.2025, 06.08.2025 and 12.08.2025 stands vacated,” the bench ordered in its 31-page detailed judgment.

Due to the said interim reliefs by-elections couldn’t be held against the vacant seats and the positions of leader of the opposition in the two houses of the parliament couldn’t be filled.

The bench observed that they (judges) couldn’t ignore the fact that the petitioners, having been convicted by the anti-terrorism courts had not surrendered before the appropriate forum where their appeals were pending adjudication.

“Until they do so, we are constrained from granting them any relief,” the bench ruled, adding: “Even assuming, for the sake of argument, that the impugned notifications of the ECP were to be set aside and the matter remanded for reconsideration, the convictions of the petitioners would still preclude them from appearing before the ECP or from performing their constitutional functions as members of the National Assembly or the Senate.”

It ruled: “Besides, the impugned notifications are the outcome of their conviction in a criminal trial; therefore, the nexus between the conviction and the impugned disqualification is apparent.”

Through separate petitions, Mr Ayub and Mr Faraz had first challenged their disqualification and de-notification as member of National Assembly (MNA) and a senator, respectively, by the commission on Aug 5, following their conviction by an ATC in Faisalabad on July 31.

However, on Aug 7 and Aug 8 notifications were issued by NA and Senate secretariats, declaring their respective offices of leader of opposition vacant.

Both of them had then filed fresh petitions to challenge the two notifications of Aug 7 and 8, respectively.

Similarly, Mr Lateef has challenged the notification of his disqualification by ECP on July 29, based on his conviction by an ATC in Islamabad on May 30.

The bench had conducted marathon hearings on different days on multiple aspects of these petitions, including maintainability and on merit, and had reserved its order on Sept 24.

Barrister Gohar Ali, Mohammad Muazzam Butt and Bashir Khan Wazir had represented the petitioners.

They contended that the jurisdiction of the ECP after the elections remained operative only for 60 days, after which it ceased to have either constitutional or statutory competence to disqualify a member, save for the exception provided in Article 63-A of the Constitution.

Additional attorneys general Chaudhry Amir Rehman and Sanaullah appeared for the federal government and Barrister Sajeel Sheharyar Swati represented a respondent, who was complainant against Mr Lateef before the ECP.

Several officials of the ECP also turned up, including its special secretary (law) Mohammad Arshad Khan, additional director general (law) Khurram Shehzad, deputy director Musaddiq Anwar and assistant director (law) Samran Jehangir.

They raised objection that the petitioners, being fugitive from justice, had attracted the doctrine of ‘fugitive disentitlement’ as developed by the superior courts of Pakistan and in certain foreign jurisdiction.

They stated that unless the petitioners surrendered to the law specifically by approaching the appropriate forum and filing an appeal against their conviction, their petitions were not maintainable.

The bench discussed in detail the question of whether fugitive disentitlement extends to the maintainability of civil proceedings or constitutional petitions wherein fundamental rights are invoked, or where orders adverse to a person’s status, office or property are impugned on legal grounds.

After highlighting different judgments of the superior courts, the bench observed: “In all the aforementioned cases dealing with the fugitive disentitlement doctrine in civil proceedings, the petitioners, though fugitives from law, were not convicted in any case.”

“In the present matters, however, we are confronted with a unique and complex situation. Admittedly, all three petitioners stand convicted by the learned anti-terrorism court(s), and though appeals against their convictions have been filed before the appropriate forum, they have thus far failed to surrender before the appellate court. It is for this reason that the appellate court has not taken up their appeals for hearing,” the bench ruled.

Published in Dawn, October 2nd, 2025