Muhammad Sibtain Khan etc Vs Muhammad Hamza Shahbaz Sharif etc

Form No: HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

ICA No. 27313 of 2022.

Muhammad Sibtain Khan etc. Vs. Muhammad Hamza Shahbaz Sharif etc. S. No. of Date of Order with signature of Judge, and that of order/ order/ Parties or counsel, where necessary Proceeding Proceeding 30.04.2022. M/s. Muhammad Azhar Siddique, Rana Mudassar Umar, Barrister Nudrat B. Majeed, Abdullah Malik, Rana Sakhawat Ali, Naila Iqbal, Ali Shahbaz Khan, Salma Riaz, Amna Liaquat, Mian Shabeer Ismail, Munir Ahmad, Mustafa Imran Pasha, Rana Inam Ahmad, Rana Nasir Mushtaq and Zahoor Ali Nasir Tagga, Advocates for appellants.

At the very outset, learned counsel for appellants is asked as to how instant appeal is maintainable under the law when impugned judgment has already been implemented. He submits that if this Bench comes to the conclusion that impugned judgment is nullity in the eye of law, then any superstructure built thereon would automatically fall to the ground and would be of no legal effect.

2.After the above response, it is, inter alia, contended by learned counsel that neither the President of Pakistan and Governor of the Punjab were impleaded as respondents in the constitutional petition, nor any notice of hearing was issued enabling them to controvert the contentions raised by respondent No.1 by filing reply, but despite that adverse remarks have been passed against them, which are liable to be expunged. Contends that important legal and constitutional questions raised by learned counsel for appellants qua maintainability of constitutional petition have neither been noted nor repelled with reasons in impugned judgment. Adds that since interpretation of various constitutional provisions was involved, notice in terms of Order XXVII-A of C.P.C. was required to be issued to learned Attorney General for Pakistan and Advocate General of Punjab, but the mandatory provisions of law were not complied with and learned Single Judge passed the impugned judgment without due process guaranteed under Articles 4 and 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 (“the Constitution”). Maintains that

ICA No. 27313/2022.

for implementation of decisions passed in W.P. Nos. 24320 and 25671 of 2022, fresh constitutional petition was not competent and remedy, if any, was by way of filing contempt petition under Article 204 of the Constitution. Further argues that High Court has no authority to nominate any specific person, including Speaker of the National Assembly, for administration of oath to the newly elected Chief Minister of the Punjab, thus the impugned judgment, being in violation of various provisions of the Constitution as well as applicable law, is unsustainable.

3.Contentions raised need consideration. Admit. Notice to respondents.

4.Since substantial questions of law regarding interpretation of various provisions of the Constitution is involved, therefore, notice in terms of Order XXVII-A of C.P.C. is required to be issued to learned Attorney General for Pakistan and Advocate General of Punjab. Office to do the needful accordingly.

5.Considering the important legal and constitutional questions raised in the instant appeal, we deem it appropriate to refer the matter to the Hon’ble Chief Justice for constitution of a Larger Bench comprising of at least five or more Hon’ble Judges.

6.In the meanwhile, the following observations made in Para 9 of the impugned judgment, regarding conduct of the President of Pakistan as well as Governor of the Punjab, are suspended:- “9. Although while passing the judgment this Court has enunciated the principles of law having biding effect under Article 201 of the Constitution which have been disregarded not only by the President of Pakistan but also by the Governor of the Punjab, causing nonfulfillment of his constitutional duty thereby violating Article 5 read with Article 189 and 201 of the Constitution.”

7.The connected ICAs, if any filed by appellants, shall also be heard along with this appeal. Relist.

(Tariq Saleem Sheikh) (Muhammad Sajid Mehmood Sethi) Judge Judge *Mian Farrukh*