W.P. Nos. 21710 & 21711 of 2022, decided on 13.4.2022.
Constitution of Pakistan, 1973–
—-Arts. 67, 53, 127, 130(3) & 254–Rules of Procedure of Provincial Assembly of Punjab, 1997, Rr. 17 to 20–Election of Chief Minister–Without cabinet assembly would not be able to perform its function–Whenever office of Chief Minister falls vacant, same shall be filled promptly by election keeping in view desire of Constitution and Rules 17, 18, 19 & 20 of Rules of Procedure framed under mandate of Constitution in terms of Article 67 read with Article 127 which provide procedure for completion of election within two unified days from summoning of Session–Deputy Speaker, who was performing functions of Presiding Officer because of exclusion of Speaker being nominee in election of Chief Minister, adjourned sitting and fixed it firstly for 06.04.2022 and subsequently for 16.04.2022 beyond mandate of Constitution and Rules of Procedure–Taking benefit of curable provision of Article 254, High Court has no option except to validate act of fixing of day of sitting of Provincial Assembly for 16.04.2022 as valid for voting for election of office of Chief Minister. [P. 467] A, B & C
Constitution of Pakistan, 1973–
—-Art. 53(3)–Speaker and Deputy Speaker–Functions of deputy speaker in absence of speaker–Power of Deputy Speaker–When Speaker is absent or unable to perform his functions due to any cause, Deputy Speaker shall act as a Speaker; meaning thereby Speaker who is contesting election for office of Chief Minister is unable to perform functions on principle of propriety as well; hence, by virtue of this Article Deputy Speaker was rightly acting as a Speaker–When Constitutional provisions itself, in a clear and unequivocal manner, entrust all powers of Speaker to Deputy Speaker on account of his non-availability or dis-functioning, it does not demand from Speaker to notify in this regard–If Speaker has no right of issuing Notification to entrust any power while exercising provisions of Rules of Procedure then recalling or withdrawing of any power, which is otherwise within domain of Deputy Speaker by virtue of Article 53(3) of Constitution, same is unconstitutional and unlawful, any order issued by Speaker withholding of any power of Deputy Speaker for purpose of this Session particularly when he is contesting candidate of Chief Minister himself, is unwarranted and against Constitution; hence, hereby set-aside. [Pp. 468 & 469] D & E
Rules of Procedure of Provincial Assembly of Punjab, 1997–
—-R. 17–Constitution of Pakistan, 1973, Art. 130(3)–Election of office of Chief Minister–Motion of no confidence against Speaker and Deputy Speaker–Question of–Mandate of–Election of office of Chief Minister and two Motions of No-Confidence against Speaker and Deputy Speaker are pending, therefore, question arises as to which one of these is to be taken first–According to mandate of Article 130(3) of Constitution and Rule 17 of Rules of Procedure, election of Chief Minister is to be given priority. [P. 469] F
Rules of Procedure–
—-R. 12(1) & (2)–Removal of Speaker or Deputy Speaker–Grant of leave–After grant of leave under Rule 12(5), then there will be debate on resolution whereas in this case motion is still at stage of obtaining of leave–Even otherwise prohibition contained in Constitution for presiding over Session by Speaker and Deputy Speaker against whom No-Confidence is pending, is with regard to preside Session in which that resolution will be considered; meaning thereby other Sessions will not affect powers of Speaker or Deputy Speaker to preside over. [P. 470] G
M/s. Azam Nazeer Tarar, Advocate, Khalid Ishaque, Ch. Sultan Mahmood, Attaullah Tarar, Asadullah Chathha, Atif Mohtashim Khan, Ch. Asif Mehmood, Qamar Hayat, Usama Mohtashim Khan, Rana Afzal Razzaq, Rana Muhammad Ashraf Khan, Muhammad Arshad Malik, Nasir Javed Ghumman, Abid Hussain, Sardar Ali Akbar Dogar, Zahir Abbas, Kh. Mohsin Abbas, Mazhar Ali Ghallu, Kh. Aurangzeb Alamgir, Khalil Tahir Sandhu, Muhammad Nasir Chohan, Imtiaz Elahi, Rana Shahzad Khalid, Khawar Ikram Bhatti, Advocates for Petitioner (in W.P.No. 21710 of 2022).
Barrister Muhammad Umer Riaz, Advocate, M/s. Usama Khawar, Waqas Umer Sial, Rana Rehan, Muhammad Amin, Muhammad Zulfiqar, Mahad Ghafoor, Mian Asif Habib, Kashif Bashir, Waheed Ashraf Bhatti, Advocates for Petitioner (in W.P. No. 21711 of 2022).
Barrister Syed Ali Zafar, Advocate, M/s. Zahid Nawaz Cheema, Talib Hussain and Jehanzeb Sukhera, Advocates for Respondents.
M/s. Imtiaz Rashid Siddiqui, Advocate, Barrister Shehryar Kasuri, Raza Imtiaz Siddiqui, Muhammad Humzah Sheikh, Jamshid Alam, Qadeer Ahmad Kalyar and Sabeel Tariq Mann, Advocates in both the Petitions.
M/s. Aamir Saeed Rawn and Safdar Shaheen Pirzada, Advocates for Applicant-Respondent in Miscellaneous Applications filed in both petitions.
M/s. Ashfaq Ahmed Kharal, Malik Mohsin Sadiq, Misbah Sarwar Goraya and Irfan Mehmood Ranjha, Advocates for Respondents.
M/s. Ahmad Awais, Advocate General Punjab, Rai Shahid Saleem, Umair Khan Niazi, Muhammad Arif Raja, Anis Ali Hashmi and Arshad Jehangir A-Jojha, Additional Advocates General for Respondents.
Ch. Sarfraz Ahmad Khatana, Deputy Prosecutor General for Respondent.
Mr. Muhammad Khan Bhatti, Secretary, Provincial Assembly of Punjab.
Date of hearing: 12.4.2022.
Judgment
The short order was announced in open Court on 13.04.2022, which is as under:
1. The prayer of the petitioner in Writ Petition No. 21710/2022 to shorten the date of Session, which is already fixed by the Deputy Speaker for 16.04.2022 to elect the Chief Minister is hereby declined.
2. It is directed that the Deputy Speaker on the date fixed i.e. 16.04.2022 shall proceed to elect the Chief Minister in terms of sub-Article (3) of Article 130 of the Constitution read with Rule 20 of the Rules of Procedure and all other enabling provisions and powers in this behalf. The Deputy Speaker and all other persons including the Provincial Government are directed to act impartially, justly and fairly to ensure the supremacy of the Constitution.
3. During the course of arguments the respondents’ counsel including the learned Advocate General have not shown any reservation for holding of election in terms of Article 130(3) of the Constitution read with Rule 20 of the Rules of Procedure on 16.04.2022, who shall not, in any manner, hinder, obstruct or interfere with any member of the Provincial Assembly who wish to attend the Session summoned as above, and to participate in, and cast their votes in terms of short order of the honourable Supreme Court dated 07.04.2022. The Secretary and other employees of the Provincial Assembly shall make all efforts to provide assistance which they otherwise are under legal obligation in this regard.
4. The Secretary, Provincial Assembly is further directed to ensure the completion of renovation work of the Provincial Assembly before 11:00 pm of 15.04.2022 and should be made available for its use for the honourable members of the Provincial Assembly on 16.04.2022 in respectable manner.
5. Impugned order dated 06.04.2022 in Writ Petition No. 21711/2022, whereby the powers of the Deputy Speaker in terms of Rule 25 of the Rules of Procedure were withdrawn, being contrary to Article 53(3) of the Constitution by virtue of which Deputy Speaker in absence of the Speaker attained the status of Speaker for this Session, completely overriding the powers provided in Rules, is hereby set-aside.”
The following are the reasons of the aforesaid short order.
2. This single judgment shall dispose of Writ Petition No. 21710/2022 (Muhammad Hamza Shahbaz Sharif v. Province of Punjab and 04 others) and Writ Petition No. 21711/2022 (Sardar Dost Muhammad Mazari v. Provincial Assembly of the Punjab and 03 others) as both these petitions are interlinked, though on different subjects, but involve common question concerning election of the office of the Chief Minister of the Punjab.
3. Since both the parties have presented arguments at length in three hearings, therefore, this case is being treated and decided as admitted case.
4. The petitioner-Muhammad Hamza Shahbaz Sharif in Writ Petition No. 21719/2022 has made the following prayer:
“In view of the foregoing, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to:
i. Declare that the Impugned Actions and inactions e.g. adjourning the house time and again without holding of the election of the chief minister, sealing of the premises of the Provincial Assembly of the Punjab and barring/restraining the members of the Provincial Legislature from discharging their constitutional mandate and from exercising their most basic fundamental right to elect Chief Minister are without lawful authority and of no legal effect;
ii. Declare and direct that the session of the Provincial Assembly of the Punjab be convened forthwith and the process of election of the Chief Minister be completed without any adjournment in any manner whatsoever;
iii. Direct that the Respondents shall ensure that there should not be any hindrance or obstruction or interference with any members of the Provincial Assembly of the Punjab who wish to attend the session and cast their vote for the election of the Chief Minister of the Punjab.
iv. Any other relief that this Honourable Court may deem appropriate.”
5. The brief facts necessary for disposal of the aforesaid Constitutional petitions are that on acceptance of the resignation of the then Chief Minister Sardar Usman Ahmed Khan Buzdar, by the Governor of the Punjab, a Notification was issued declaring the office of the Chief Minister vacant. As a result thereof, vide Notification dated 01.04.2022, the Governor of the Punjab summoned the 40th Session of Punjab Assembly to be conveyed on Saturday, 2nd April, 2022 at 11:00 a.m. in the Punjab Assembly, Lahore, for the election of Chief Minister under Article 130 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). Consequently the Session commenced and two members of the Assembly came forward as candidates namely; the present petitioner-Muhammad Hamza Shahbaz Sharif and Respondent No. 4, the incumbent Speaker-Ch. Pervez Elahi and submitted their nomination papers on the same day before the Deputy Speaker, who by virtue of Article 53(3) of the Constitution was acting as a Speaker. Moreover, he was notified by the Speaker himself following the order of the Governor of the Punjab relating to summoning of Session of Provincial Assembly for holding election for the office of Chief Minister under Article 130 of the Constitution. The nominations after their scrutiny were declared valid on the same day in terms of Rules 17 & 18 of the Rules of Procedure of the Provincial Assembly of the Punjab, 1997 (the Rules of Procedure) and the Session was adjourned for voting in terms of Rule 20 of the Rules of Procedure for 3rd April, 2022. On 03.04.2022, it is reported that on account of some unavoidable circumstances the Session was adjourned for 06.04.2022, though the specific cause is missing in the said Notification. The record further reveals that on 05.04.2022 the 40th Session of the Punjab Assembly, which was ordered to be held on 06.04.2022 vide order dated 03.04.2022, was changed to 16.04.2022 at 11:30 a.m. in Assembly Chambers, Lahore.
It is noticed that the honourable Supreme Court on 03.04.2022 took suo moto notice of the Ruling of the Deputy Speaker of National Assembly and the political party-PML(N) also filed a constitutional petition before the honourable Supreme Court bearing C.P. No. 05/2022 concerning the matter of election of office of the Chief Minister and during the course of those proceedings, taking cognizance of this petition, the following order was passed:-
7. Mr. Azam Nazeer Tarar, ASC has reported that the proceedings of the Punjab Provincial Assembly were fixed today for the election of the new Chief Minister of Punjab. These proceedings have been adjourned by the Deputy Speaker of the Assembly to another date without citing any reason or cause. A large number of MPAs are still in the premises of the House of the Provincial Assembly which is creating an unpleasant situation both inside and outside the House. Notice under Order XXVIIA, CPC be issued to Advocate General Punjab to examine the vires of the decision by the Deputy Speaker of the Punjab Assembly and the situation that has arisen as a consequence thereof. All the political parties involved in the process of election of the new Chief Minister shall exercise restraint and maintain peace and public order. It is directed that the state functionaries and the law enforcement agencies of the Province shall ensure that peace and public order is maintained in the Province and they act strictly in accordance with the Constitution and the law guided by the principle laid down by this Court in Sindh High Court Bar Association’s case (ibid).
8. Since these matters relate to an urgent issue, therefore, office is directed to fix the same tomorrow i.e. 04.04.2022 at 1:00 pm before a larger bench.”
In pursuance to the direction of honourable Supreme Court, textually quoted above, the learned Advocate General appeared and expressed before the apex Court that the Session of the Provincial Assembly of the Punjab for election of the office of Chief Minister, scheduled for 06.04.2022 at 11:30 am, will be held in accordance with law, however, the change in date for Session of the Provincial Assembly from 06.04.2022 to 16.04.2022, made vide an order dated 05.04.2022, was also brought to the notice of the apex Court by the learned Advocate General. It is worth mentioning here that all the orders for fixation of the Session of the Provincial Assembly were passed by one and same Deputy Speaker-Sardar Dost Muhammad Mazari. It is also noticed that another last order in series, passed by said Sardar Dost Muhammad Mazari, Deputy Speaker on 05.04.2022, summoning the Session changing date from 16.04.2022 to 06.04.2022 at 7:30 pm was issued and admitted by the Deputy Speaker but it did not contain the office endorsement number or signature of the Secretary of the Provincial Assembly. Hence, on account of non-availability of the concerned administerial infrastructure the Session could not be held. Respondent-Secretary in his reply claimed that he did not receive any information about change of date of Session from the Deputy Speaker, therefore, he alleged that he could not believe that this order for change of Session was issued by the Deputy Speaker- Sardar Dost Muhammad Mazari and for this reason he remained unable to make necessary arrangements including providing information to all the respectable members regarding holding of Session of the Provincial Assembly for election of the Chief Minister.
6. The honourable Supreme Court disposed off all the petitions including the petition of PML(N) relating to non-holding of election of Chief Minister of the Provincial Assembly reflecting from order dated 07.04.2022 but nothing has been said about the inaction of the Deputy Speaker of the Provincial Assembly for not holding the election on 06.04.2022. It is expedient to reproduce the order of the Hon’ble Supreme Court:
“For detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise, these matters are disposed of in the following terms:
1. The ruling of the Deputy Speaker of the National Assembly (“Assembly”) given on the floor of the House on 03.04.2022 (“Ruling”) in relation to the resolution for a vote of no-confidence against the Prime Minister under Article 95 of the Constitution (“Resolution”) (for which notice had been given by the requisite number of members of the Assembly on 08.03.2022, and in relation to which leave was granted to move the Resolution on 28.03.2022), and the detailed reasons for the Ruling (released subsequently and concurred with by the Speaker) are declared to be contrary to the Constitution and the law and of no legal effect, and the same are hereby set aside.
2. In consequence of the foregoing, it is declared that the Resolution was pending and subsisting at all times and continues to so remain pending and subsisting.
3. In consequence of the foregoing, it is declared that at all material times the Prime Minister was under the bar imposed by the Explanation to clause (1) of the Article 58 of the Constitution and continues to remain so restricted. He could not therefore have at any time advised the President to dissolve the Assembly as contemplated by clause (1) of Article 58.
4. In consequence of the foregoing, it is declared that the advice tendered by the Prime Minister on or about 03.04.2022 to the President to dissolve the Assembly was contrary to the Constitution and of no legal effect.
5. In consequence of the foregoing, it is declared that the Order of the President issued on or about 03.04.2022 dissolving the Assembly was contrary to the Constitution and of no legal effect, and it is hereby set aside. It is further declared that the Assembly was in existence at all times, and continues to remain and be so.
6. In consequence of the foregoing, it is declared that all actions, acts or proceedings initiated, done or taken by reason of, or to give effect to, the aforementioned Order of the President and/or for purposes of holding a General Election to elect a new Assembly, including but not limited to the appointment of a care-taker Prime Minister and Cabinet are of no legal effect and are hereby quashed.
7. In consequence of the foregoing, it is declared that the Prime Minister and Federal Ministers, Ministers of State, Advisers, etc stand restored to their respective offices as on 03.04.2022.
8. It is declared that the Assembly was at all times, and continues to remain, in session as summoned by the Speaker on 20.03.2022 for 25.03.2022 (“Session”), on the requisition moved by the requisite number of members of the Assembly on 08.03.2022 in terms of clause (3) of Article 54 of the Constitution. Any prorogation of the Assembly by the Speaker prior to its dissolution in terms as stated above is declared to be of no legal effect and is set aside.
9. The Speaker is under a duty to summon and hold a sitting of the Assembly in the present Session, and shall do so immediately and in any case not later than 10:30 a.m. on Saturday 09.04.2022, to conduct the business of the House as per the Orders of the Day that had been issued for 03.04.2022 and in terms as stated in, and required by, Article 95 of the Constitution read with Rule 37 of the Rules of Procedure and Conduct of Business in National Assembly Rules, 2007 (“Rules”).
10. The Speaker shall not, in exercise of his powers under clause (3) Article 54 of the Constitution, prorogue the Assembly and bring the Session to an end, except as follows:
a. If the Resolution is not passed by the requisite majority (i.e., the no-confidence resolution is defeated), then at any time thereafter;
b. If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful), then at any time once a Prime Minister is elected in terms of Article 91 of the Constitution read with Rule 32 of the Rules and enters upon his office.
11. If the Resolution is passed by the requisite majority (i.e., the no-confidence resolution is successful) then the Assembly shall forthwith, and in its present Session, proceed to elect a Prime Minister in terms of Article 91 of the Constitution read with Rule 32 of the Rules and all other enabling provisions and powers in this behalf and the Speaker and all other persons, including the Federal Government, are under a duty to ensure that the orders and directions hereby given are speedily complied with and given effect to.
12. The assurance given by the learned Attorney General on behalf of the Federal Government in C.P. 2/2022 on 21.03.2022 and incorporated in the order made in that matter on the said date shall apply as the order of the Court: the Federal Government shall not in any manner hinder or obstruct, or interfere with, any members of the National Assembly who wish to attend the session summoned as above, and to participate in, and cast their votes, on the no confidence resolution. It is further directed that this order of the Court shall apply both in relation to the voting on the Resolution and (if such be the case) in relation to the election of a Prime Minister therefore, it is however clarified that nothing in this Short Order shall affect the operation of Article 63A of the Constitution and consequences therefore in relation to any member of the Assembly if he votes on the Resolution or (if such be the case) the election of a Prime Minister thereafter in such manner as is tantamount to his defection from the political party to which he belongs within the meaning of the said Article.
13. The order of the Court made in SMC 1/2022 on 03.04.2022 to the following effect, i.e., “Any order by the Prime Minister and the President shall be subject to the order of this Court” shall continue to be operative and remain in the field, subject to this amplification that it shall apply also to the Speaker till the aforesaid actions are completed.”
Hence, this petition is filed by Muhammad Hamza Shahbaz Sharif seeking this Court’s indulgence to grant the prayer, reproduced hereinabove in Paragraph-03.
7. On the other hand, another Writ Petition No. 21711/2022 has been filed by the Deputy Speaker-Sardar Dost Muhammad Mazari asserting therein that though he had adjourned the Session for 16.04.2022 but on acquiring the information about statement made by the learned Advocate General, Punjab, before the honourable Supreme Court, he re-scheduled the said election for a date earlier fixed i.e. 06.04.2022, which could not be materialized on account of irresponsible attitude of the Secretary, Provincial Assembly. Further adds that Speaker vide impugned letter dated 06.04.2022 withdrew his powers relating to Rule 25 of the Rules of Procedure, which has been called-in-question, with the following prayer:
“In view of the foregoing facts and circumstances, it is respectfully prayed that the instant writ petition may graciously be accepted in the following terms:
i. Declare that the Impugned Order of the Speaker/Candidate for Chief Minister dated 06.04.2022 be declared as without lawful authority, and without legal effect; and set Impugned Order aside.
ii. Declare that since the submission of nomination papers by the Respondent No. 2 on 2nd of April 2022 for election to the Chief Minister, the Petitioner has been lawfully acting as the Speaker, while the Respondent No. 2 is not competent or has been disabled to exercise powers of the Speaker. Additionally, till the election of the Chief Minister is completed in accordance with the law, the Petitioner is entitled to act as the Speaker.
iii. Declare that it is the legal and constitutional obligation and duty of the Respondents to ensure that there should not be any hindrance, obstruction, or interference with any members of the Provincial Assembly of the Punjab who wish to exercise their rights and privileges as members of Provincial Assembly, especially, the right of the members to participate without any fear or physical retrain in the process of the election of the Chief Minister of the Punjab.
iv. Direct that the ongoing election process for the position of Chief Minister within the Provincial Assembly of the Punjab, be completed without any further delays or disruptions within the election process, as well as to ensure that the election process remains fair and transparent;
v. Any other relief that this Honourable Court may deem appropriate.”
Considering the legal question of non-holding of Session for the election of office of the Chief Minister necessary to be held promptly under Article 130(3) of the Constitution read with Rules 17 to 20 of the Rules of Procedure even excluding all other business and without debate will give the negative effect on Government functioning, notices were issued to the respondents, and Secretary Provincial Assembly, was called in person along with record of the election process of the office of Chief Minister.
8. I have heard the learned counsels for the parties and gone through record of the case.
9. Mr. Azam Nazeer Tarar, learned counsel for the petitioner in Writ Petition No. 21710/2022, filed by a candidate for the office of the Chief Minister contends that prompt filling of the vacant office of the Chief Minister is essential mandate of the Constitution and law. He adds that the Chief Minister’s resignation was accepted on 01.04.2022 and as consequence whereof the office of Chief Minister had become vacant, necessary to be filled in contemplation of Article 130(3) of the Constitution read with the Rules 17, 18 and 20 of the Rules of Procedure. Governor had met his legal responsibility by issuing notification for summoning of Session of the Assembly for 02.04.2022. The nomination papers in terms of Rule 17(2) for the election of the Chief Minister were received on 02.04.2022 and also scrutinized on the same day as required by Rule 18 and election for the Chief Minister was to be held on 03.04.2022. Accordingly, Session was called for election of Chief Minister on 03.04.2022 but the same was adjourned to 06.04.2022 after few minutes’ proceedings on the pretext of some dispute in the Provincial Assembly of the Punjab, which was an illegal act. He argued that the Punjab is the largest Province of Pakistan but at present Government is non-functional and cannot run its business in the light of celebrated judgment in Mustafa Impex’s case (PLD 2016 Supreme Court 808). He argued that under Article 130(3) of the Constitution the Chief Minister is to be elected soon after election of Speaker and Deputy Speaker, to the exclusion of any other business which is also incorporated in Rule 17 of the Rules of Procedure which are framed under the Constitution and are mandatory in nature but not only the constitutional provision but also the rules are being flouted by not conducting the election of Chief Minister in the Punjab Assembly. It is further contended that under Article 53(3) of the Constitution, in absence of the Speaker, the Deputy Speaker was fully competent to act as a Speaker, therefore, the Speaker, who was unable to perform his functions due to his candidature for the office of Chief Minister, direction may be issued to the Deputy Speaker for earliest fixation of date for voting of office of the Chief Minister. Regarding filing of Civil Petition in the honourable Supreme Court, it is contended that the said petition was filed by a political party PML(N) and after passing of first order by the apex Court it was not heard and probably on the statement made by the learned Advocate General it was disposed off for approaching this Court, however, the detailed order will reflect the reasons. It is also contended that effect of those proceedings conducted by the honourable Supreme Court will not prejudice petitioner’s rights, who has otherwise, being a candidate for the office of the Chief Minister, in his own right, has approached this Court for getting relief restraining infringement of his fundamental rights as well as alleged violation of the provisions of the Constitution and law in this regard, therefore, issuance of direction to the concerned Deputy Speaker does not fall within the prohibition contained in Article 69 of the Constitution. It is added that this Court has the jurisdiction to intervene and review the action and inaction of the respondents creating hurdle, if any, in completion of the process of election of the office of Chief Minister. The learned counsel has placed reliance on Imran Ahmad Khan Niazi v. Mian Muhammad Nawaz Sharif and 09 others (PLD 2017 Supreme Court 265) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan and others (PLD 2010 Supreme Court 61).
10. Barrister Muhammad Umer Riaz argued that the petitioner is Deputy Speaker of the Provincial Assembly and was Presiding the Session for the election of Chief Minister because the Speaker of the Assembly himself is contesting for the post of Chief Minister and he could not preside the Session, which is covered under Article 53(3) of the Constitution and Deputy Speaker has to act as Speaker if the Speaker is unable to perform his functions due to any cause. He argued that the Deputy Speaker was performing his duty smoothly under Rules 17, 18 & 20 of the Rules of Procedure by receiving nomination papers, scrutiny of the nomination papers and conducting the Session for the election of Chief Minister, which was required to be conducted to the exclusion of any other business as envisaged in Article 130(3) of the Constitution. He argued that the other side portrayed a misconceived picture of law that Deputy Speaker cannot preside over the Session on account of pendency of resolution of no- confidence against him, hence, the Deputy Speaker cannot preside a meeting of the Assembly when a resolution for his removal from office is being considered while in the present situation he has to preside the meeting for election of Chief Minister, so Article 53(4) read with Rule 9(3) of the Rules of Procedure does not bar the Deputy Speaker to preside the Assembly. He further argued that the act of the Deputy Speaker for calling the Session on 06.04.2022 at 07:30 p.m. instead of 16.04.2022 was according to law because during the proceedings of the SMC No. 1/2022 the learned Advocate General, Punjab, had made statement that election of the Chief Minister would be held on 06.04.2022. He adds that the Deputy Speaker acted according to the Constitution and the Rules of Procedure but the Speaker issued illegal order by withdrawing his powers because as per Constitution Speaker includes Deputy Speaker and Speaker being the candidate for the Chief Minister could not exercise such power. He further added that the Deputy Speaker had been restrained to use his office. He concluded the arguments while saying that Article 53(3) of the Constitution is clear that if the Speaker is unable to perform function, then the Deputy Speaker shall act as a Speaker and holding of the chair by panel of Chairmen is out of question because under Rule 13 of the Rules of Procedure, any member amongst members of panel can take the chair if Deputy Speaker is absent while in the present scenario the Deputy Speaker is neither absent nor unable to perform its function. He relied upon Brig. (Retd.) F. B. Ali and another v. The State (PLD 1975 Supreme Court 506), Muhammad Naeem Akhtar v. Speaker, Sindh Assembly and others (1992 CLC 2043), “Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker” (PLD 2006 Queta 36), “Munir Hussain Bhatti v. Federation of Pakistan and others” (PLD 2011 Supreme Court 407), “Muhammad Azhar Siddiqui and others v. Federation of Pakistan and others” (PLD 2012 Supreme Court 774).
11. On the other hand, M/s. Ali Zafar, Imtiaz Rasheed Siddiqui and Aamir Saeed Rawn, Advocates, submitted arguments on behalf of respondents by raising the objection regarding maintainability of these petitions as the same is short of any illegality committed by the said respondent. The second limb of their argument is that since the same relief by virtue of C.P. No. 05/2022 has been availed before the honourable Supreme Court, therefore, by virtue of res judicata, this petition is not maintainable as the said petition in the apex Court reflecting from the short order dated 07.04.2022 stood disposed off. Although nothing is reflecting from this short order about prayer made before the honourable Supreme Court for its grant or refusal, however, fate of the petition can be determined as the short order is showing its disposal but after the announcement of detailed judgment/order further arguments on this point can be advanced and till then the petition is not maintainable. It is also argued that jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is to be exercised subject to Constitution as envisaged in the said Article, so before exercising the jurisdiction under Article 199 of the Constitution the Court cannot ignore the other provisions of the Constitution. He contended that Article 69 read with Article 127 of the Constitution makes it quite clear that proceedings in the Parliament shall not be called-in-question on the ground of any irregularity of procedure and this is a firewall which if crossed, would amount to intervention in the functions of legislature which is fundamentally against the basic concept of trichotomy and democratic form of government. It is also argued that no illegal act is committed because the Chief Minister’s resignation was accepted on 01.04.2022 while nomination papers for the election of the Chief Minister were received and scrutinized on 02.04.2022 and election for the Chief Minister was to be held on 03.04.2022. The Session of the Assembly was called for the said date to elect the Chief Minister but due to dispute between the honourable members, the meeting was adjourned for 06.04.2022. That, later on, keeping in view the situation of the floor of the Assembly, which had been damaged due to scuffle between the members, the Session was called for 16th April, 2022 at 11:30 a.m. instead of 06th April, 2022 at 11:30 a.m. by the Deputy Speaker which was duly notified on 5th April, 2022 but afterwards an order of Deputy Speaker calling the Session of the Assembly for 06th April, 2022 at 07:30 p.m. was seen in social media and T.V. channels despite the fact that the same was not handed over to any official of the Provincial Assembly of the Punjab to notify the same and to make arrangements. They emphasized that all the proceedings for the election of Chief Minister were being carried-out according to law and rules as nominations were received under Rule 17 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, which were scrutinized under Rule 18 ibid and election was scheduled under Rule 20 for 03rd April, 2022 but the same could not be conducted due to law and order situation and Rules 25 and 210(4) of the Rules of Procedure empower the Chair to adjourn the Assembly Session, so no illegality was committed. They further argued that although there is no delay in the election of Chief Minister as required by Article 130(3) of the Constitution read with Rule 17 of the Rules of Procedure, yet if there is any delay that cannot be termed illegal or unconstitutional in the light of Article 254 of the Constitution. It is also argued that the order of withdrawal of power of Deputy Speaker by the Speaker was also passed according to law because the Deputy Speaker could use the powers which were delegated by the Speaker under Rule 15 of the Rules of Procedure and only the Powers conferred under Rule 25 (b) were withdrawn to avoid any Constitutional crisis because the Deputy Speaker made his office disputed while issuing an illegal letter for changing the date of Session from 16.04.2022 at 11:30 a.m. to 06.04.2022 at 07:30 p.m. The matter relating to presiding over the Session for the election of Chief Minister was also argued with contention that Deputy Speaker has changed his affiliation and resolution for vote of no- confidence has been submitted, so under Article 53(4) of the Constitution read with Rule 9(3) of the Rules of Procedure, he cannot preside over the Session. They place reliance on Pakistan v. Ahmad Saeed Kirmani and others (PLD 1958 Supreme Court (Pak) 397), BNP (Pvt.) Ltd. v. Capital Development Authority and others (2016 CLC 1169), Wasi Zafar v. Speaker Provincial Assembly) (PLD 1990 Lahore 401), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670) and Riaz Hanif Rahi v. Federation of Pakistan and 14 others (PLD 2019 Islamabad 230).
12. After hearing learned counsels for the parties, going through the available record, the case-law cited at bar as well as the provisions of law in the Constitution and Rules of the Procedure, referred to from both sides, Article 67 read with Article 127 and Articles 130(3), 53 and 254 of the Constitution of Islamic Republic of Pakistan, 1973, and Rules 17 to 20 of Rules of Procedure of the Provincial Assembly of the Punjab, 1997, in particular, first of all, I want to dilate upon the election of the Chief Minister. Article 130(3) of the Constitution as well as Rules 17, 18 & 20 of the Rules of Procedure, referred to from both sides, for the sake of interpretation are reproduced as under:
“Article 130. The Cabinet. (1) ……..
(2) …………
(3) After the election of the Speaker and the Deputy Speaker, the Provincial Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members to be the Chief Minister.
Rules 17, 18 & 20 of the Rules of Procedure framed under Article 67 read with Article 127 of the Constitution stipulate as under:
“17. Election of Chief Minister.–(1) After the election of the Speaker and the Deputy Speaker following a general election, or whenever the office of the Chief Minister falls vacant for any reason, the Assembly shall, to the exclusion of any other business, proceed to elect without debate one of its members as the Chief Minister.
(2) At any time before 5:00 pm preceding the day on which the Chief Minister is to be elected, any member may nominate another member for election as the Chief Minister (hereinafter called “the candidate”) by delivering to the Secretary a nomination paper set out in the First Schedule signed by himself as proposer and by another member as seconder, together with a statement signed by the candidate that he consents to the nomination. (underline supplied)
(3) The nomination paper in terms of sub-rule (2), may be delivered either by the candidate, or the proposer, or the seconder.
(4) A candidate may be nominated by more than one nomination paper but no member shall subscribe, whether as proposer or seconder, more than one nomination paper at an election.
(5) The Secretary shall endorse under his signature the date and time of the receipt on each nomination paper, shall record it in the register maintained for the purpose, and shall issue an acknowledgement as set out in the First Schedule.
(6) If a member has subscribed to more than one nomination paper, the nomination paper delivered to the Secretary prior in time shall be valid and all subsequent nomination papers shall be invalid and shall not be taken into consideration.
18. Scrutiny.–(1) The Speaker shall, at 6:00 pm on the day preceding the day of the election or at such other time as he may determine, scrutinize the nomination papers received in terms of Rule 17, in the presence of such candidates, their proposers or seconders as may wish to be present.
Explanation.–Where the Speaker determines the time for scrutiny of nomination papers other than the time mentioned in this sub-rule, the Secretary shall intimate the candidates, the proposers and the seconders, the time determined by the Speaker for scrutiny of the nomination papers.
(2) The Speaker may reject a nomination paper if he is satisfied that–
(a) the proposer or the seconder or the candidate is not a member;
(b) any provision of rule 17 has not been complied with; or
(c) the signature of the proposer or the seconder or the candidate is forged.
(3) Notwithstanding anything in [sub-rule] (2), the Speaker shall not reject a nomination paper on the ground of any defect which is not of substantial nature and may allow any such defect to be rectified at the time of scrutiny.
(4) The Speaker shall endorse on each nomination paper his decision accepting or rejecting the nomination paper and shall, in case of rejection, record brief reasons for the rejection of nomination paper.
(5) The rejection of a nomination paper of a candidate shall not invalidate the nomination of the candidate through another valid nomination paper.
(6) The Decision of the Speaker, accepting or rejecting a nomination paper, shall be final.
20. Election.–(1) Before the commencement of the election, the Speaker shall read out to the Assembly the name or names of the candidates validly nominated in the order in which their nomination papers were received and shall proceed to conduct the election in accordance with the procedure prescribed in the Second Schedule.
(2) If there is only one contesting candidate and he secures the votes of the majority of the total membership of the Assembly, the Speaker shall declare him to have been elected as the Chief Minister; but, in case, he does not secure the majority, all proceedings for the election, including nomination of the candidates, shall commence afresh.
(3) If no candidate secure the votes of the majority of the total membership of the Assembly in the first poll, the Speaker shall conduct a second poll between the candidates who secure the two highest numbers of votes in the first poll and shall declare the candidates who secures the majority of votes of the members present and voting to have been elected as Chief Minister:
Provided that if the number of votes secured by two or more candidates securing the highest number of votes in equal, the Speaker shall hold further polls between them until one of them secures the majority of votes of the members present and voting, and shall declare such candidate to have been elected as the Chief Minister.”
Article 130(3) of the Constitution demonstration whereof indicates that after election of the Speaker and the Deputy Speaker, the Provincial Assembly has been given the mandate of election of the Chief Minister by using the words, “exclusion of any other business” directing the prompt exercise to elect the Chief Minister. The mandate of this Article manifests the importance of earliest election of the Chief Minister. Certainly without the Cabinet the Assembly would not be able to perform its functions and the Chief Minister being head of the Cabinet, who has to constitute/formulate his Cabinet, must have been elected without further loss of time after the election of the Speaker and the Deputy Speaker so that the Government is functional. From this analogy it can safely be concluded that whenever the office of the Chief Minister falls vacant, the same shall be filled promptly by election keeping in view the desire of the Constitution and Rules 17, 18, 19 & 20 of the Rules of Procedure framed under the mandate of the Constitution in terms of Article 67 read with Article 127 which provide the procedure for completion of the election within two unified days from summoning of the Session.
It is noticed that the Session was summoned by the Governor’s order dated 01.04.2022 for the purpose of holding election on 02.04.2022. Sub-rule (2) of Rule 17 of the Rules of Procedure requires the filing of nomination papers before 5:00 pm preceding the day on which the Chief Minister is to be elected. It means the election of the Chief Minister shall be completed within two unified days. The framers of the Rules of Procedure were clear in their mind while fixing the two unified days for completion of the election of the Chief Minister in contemplation of Article 130(3) of the Constitution, which occupies its pedestal higher than the statutory rules promulgated under delegated exercise of power, therefore, it is held that the Deputy Speaker, who was performing the functions of Presiding Officer because of exclusion of Speaker being nominee in the election of the Chief Minister, adjourned the sitting and fixed it fir