Stereo HCJ DA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Writ Petition No.27186 of 2022
Muhammad Hamza Shahbaz Sharif V/S Federation of Pakistan and another
JUDGMENT
Date of hearing 29.04.2022
Petitioner(s) by M/s Ashtar Ausaf Ali, Sr. ASC with Khalid
Ishaq, Sardar Akbar Ali Dogar and Ch.
Sultan Mahmood, ASCs.
Respondent(s) by Mirza Nasar Ahmad, Additional Attorney
General for the Federation.
Barrister Umair Khan Niazi and Anees Ali
Hashmi, Additional Advocates General for
Province of Punjab with Fiaz Basra, AAG.
Mr. Muhammad Azhar Siddique, ASC for
the Applicants in C.M.No.03 of 2022 under
Order 1 Rule 10 CPC.
JAWAD HASSAN, J. This constitutional petition has been filed
with the following prayer:
“In view of the facts and grounds explicated
above, it is most respectfully prayed that the
instant petition may kindly be allowed and, in the
interest of justice, equity to ensure that the
Province is governed by the chosen
representatives of the people and for the
enforcement of fundamental rights of the people of
Punjab and in order to restore constitutional
functioning of the province, this Hon'ble Court
may kindly direct the administration of oath to the
Chief Minister Elect by a person nominated by
this Hon'ble Court at a specified place and time
and the coercive arm of the state be set in motion
for implementation of the orders of this Hon'ble
Court.
Writ Petition No.27186 of 2022 2
It is further prayed that that the defiant attitude of
all those constitutional office holders may kindly
be declared to be in utter and blatant violations of
the Constitution and judgment of this Hon'ble
Court.
Any other relief which this Court deems fit may
kindly be granted”
2. Mr. Muhammad Azhar Siddique, ASC has also filed
C.M.No.03 of 2022 for impleading certain persons, whose names are
mentioned in the subject application. Allowed.
3. When confronted how this petition is maintainable because the
Petitioner has remedy to file contempt petition, if the judgments dated
22.04.2022 and 26.04.2022 (the “judgments”) of this Court, have not
been complied with. In response, Mr. Ashtar Ausaf Ali, Sr. ASC
states that the Court on 22.04.2022 and 26.04.2022 passed the
judgments, which have not been implemented, therefore, this petition
is being filed for the enforcement of fundamental rights under Article
199(1)(c) of the Constitution.
4. Mirza Nasar Ahmad, Additional Attorney General objected to
the maintainability of the petition on the ground that neither the
President nor the Governor has been impleaded as party to this
petition.
5. Mr. Muhammad Azhar Siddique, ASC also objected to the
maintainability of the petition by referring Article 187 and 204 of the
Constitution. He further stated that the Applicants have filed Intra
Court Appeal before learned Division Bench of this Court against the
judgment whereby the election of Chief Minister was ordered. He
next added that the Respondents have not been heard by the Court
while passing judgments as such it is violation of Article 10(A) of the
Constitution.
6. Arguments heard. Record perused.
7. The prayer made by the Petitioner is under Article 199(1)(c) of
the Constitution for the enforcement of fundamental rights conferred
by Chapter 1 of Part-II. An objection with regard to non-issuance of
notice, while passing the aforesaid judgments, has been raised by Mr.
Writ Petition No.27186 of 2022 3
Muhammad Azhar Siddique, ASC and Barrister Umair Khan Niazi,
Additional Advocate General. Toady an application filed by Mr.
Muhammad Azhar Siddique, ASC under Order 1 Rule 10 CPC was
allowed and the Court gave hearing to learned counsel for the
Respondents. Perusal of the order and the judgment reveals that it was
passed after hearing Additional Attorney General, Deputy Attorney
General, Advocate General Punjab, Additional Advocates General
Punjab and Deputy Prosecutor General. At the very outset, it is
observed that this Court while deciding W.P.No.24320 of 2022
observed as under:
“It is expected from the President of Pakistan that he
will resolve/decide the matter of nomination of any
person in terms of Article 104 of the Constitution
keeping in view the fact that people of the Province of
Punjab are already suffering on account of non-
functional Provincial Government for the last 21-days,
which as held in Mustafa Impex’s case by the
honourable Supreme Court (PLD 2016 Supreme Court
808) consists of Chief Minister and the Cabinet”.
It is also hoped that the President of Pakistan will not
wait for the letter of the Governor as the Governor has
no authority under Article 130(5) of the Constitution,
which is as follows:-
“130(5). The member elected under clause (4)
shall be called upon by the Governor to assume
the office of Chief Minister and he shall, before
entering upon the office, make before the
Governor oath in the form set out in the Third
Schedule:”
to exercise any option except to ask the newly elected
Chief Minister to assume the office by administering
oath promptly”.
8. Despite clear directions of this Court, it was not acted upon
and complied with by the office of President of Pakistan which
prompted the Petitioner to file another Writ Petition No.25671 of
2022 on the same subject which was decided with the following
observations:
Writ Petition No.27186 of 2022 4
“10 As the Oath is to Almighty Allah and not to the
Governor, who carries-out ministerial act of
administering oath, therefore, in the eventuality when
he is incapable and is not willing to administer oath
or when he is impracticable for any reason, and on
the other hand his act of avoiding to nominate any
other person amounts to transgressing the
constitutional mandate as despite lapse of nine days
from election of the Chief Minister, administration of
oath is being avoided. It is noticed that election of the
Chief Minister has not been challenged before any
forum and still intact, therefore, escaping to
administer oath by the Governor himself is
permissible but, in such eventuality, nomination of
any other person to administer oath is mandatory
under Article 255 of the Constitution. Consequently,
avoiding to administer oath through nominee
tantamount to resile from his legal obligation, hence,
this Court while deciding the earlier Writ Petition
No.24320/2022 sent the matter to worthy President,
being head of the State, for its solution but as per
information provided by the Additional Attorney
General file is still pending without any progress
despite receiving advice thrice from Prime Minister’s
office, which was otherwise not necessary. Therefore,
by not taking prompt action to resolve the issue of
administering oath of Chief Minister Punjab, for the
sake of removal of anomaly of non-existence of
functional Provincial Government exposes the
President and his lofty office that will destroy the
public trust and respect necessary for such office to
represent the unity of the Republic. Since both the
authorities failed to fulfill their obligations as
mandated in the Constitution, in such eventuality, this
Court being custodian to protect, observe and defend
the Constitution, is in all respect justified to exercise
the powers provided under Article 199 of the
Constitution for the supremacy of law as none
whosoever highly placed is above law, constrained to
issue the direction mandated by the Constitution to
ensure the administration of oath in terms of Article
255 of Constitution, of the newly elected Chief
Minister of Province of the Punjab”.
9. This Court while deciding the said writ petition,
suggested/advised/proposed that Governor shall ensure the
completion of the process of administration of oath of Chief
Minister Punjab, either himself or through his nominee, in terms of
Writ Petition No.27186 of 2022 5
Article 255 of the Constitution, on or before 28.04.2022. Moreover,
President of Pakistan was again advised to fulfil his constitutional
obligations to facilitate the expeditious administration of oath of Chief
Minister as mandated by the Constitution for ensuring a functional
Provincial Government in Punjab. Although while passing the
judgments this Court has enunciated the principles of law having
binding 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.
10. Since the Governor of Punjab has also failed to exercise his
powers and to perform his duties by avoiding the administration of
oath to the newly elected Chief Minister thereby violating the clear
advice of this Court to either administer the oath himself or through
his nominee while elaborating and interpreting Article 255 of the
Constitution which reads as under:
255 Oath of office.
(1) An oath required to be made by a person under the
Constitution shall [preferably be made in Urdu or] a
language that is understood by that person.
(2) Where, under the Constitution, an oath is required to be
made before a specified person and, for any reason, it is
impracticable for the oath to be made before that person, it
may be made before such other person as may be
nominated by that person.
(3) Where, under the Constitution, a person is required to
make an oath before he enters upon an office, he shall be
deemed to have entered upon the office on the day on which
he makes the oath.
11. The word ‘impracticable’ used in Article 255 of the
Constitution is makes it quite clear that the oath is to be made before a
specific person and in case it is impracticable for the reason it may be
made before such person as may be nominated by that person. Both
the decisions of this Court despite having binding effect have been
ignored deliberately by the President of Pakistan as well as by the
Writ Petition No.27186 of 2022 6
Governor of the Punjab. The Governor through his conduct has also
himself made impracticable for the oath to be made before him.
12. In this situation, this Court will examine Article 5 of the
Constitution which cast upon a duty on every citizen to be loyal to the
State. In “WATAN PARTY and others Versus FEDERATION OF
PAKISTAN and others” (2012 SCMR 584) the Hon’ble Supreme
Court of Pakistan has observed that “under Article 5 of the
Constitution, it is the basic duty of every citizen to be loyal to the State
and to be obedient to the Constitution and law, being inviolable
obligation whether he may be and of every other person for the time
being within Pakistan”. In “PRESIDENT BALOCHISTAN HIGH
COURT BAR ASSOCIATION and others Versus FEDERATION OF
PAKISTAN and others” (2012 SCMR 1784) the has held that
“adherence to the Constitution and the Law by the citizens, who are
officials or otherwise, is mandatory. Non-compliance of the
Constitution and the Law makes a citizen liable for action, in
accordance with law. Government is bound to enforce fundamental
rights in the context of the scenario in Balochistan, providing security
of life, property and liberty, in accordance with law. Non-enforcement
of such rights of the citizens calls for the superior Courts to issue
directions to the Federal as well as Provincial Governments to
protect the life and property of all citizens equally”. This Court in
“Mian ALI ASGHAR Versus GOVERNMENT OF THE PUNJAB and
others” (2021 MLD 370) has held as under:
“12. The word “inviolable” used in Article 5(2) of
the Constitution means that it is never to be broken
and infringed. In the case of President Balochistan
High Court Bar Association and others versus
Federation of Pakistan and others (2012 SCMR
1784), August Supreme Court of Pakistan has held
that “to be loyal to the State is the basic duty of all
citizens and they have to be obedient to the
Constitution and the law, wherever they may be.
Thus, adherence to the Constitution and the Law by
the citizens is mandatory. Non-compliance of the
Constitution and the Law makes a citizen liable for
action, in accordance with law”. It would also
Writ Petition No.27186 of 2022 7
include principles of natural justice, procedural
fairness and procedural propriety. Laws are always
made not to be violated but to be obeyed. In Suo
Motu Case No.15 of 2009 (P L D 2012 SC 610)
August Supreme Court of Pakistan held that “it is
expected from every citizen of Pakistan that he shall
be loyal to the State and the basic duty of every
citizen is to be obedient to the Constitution and law
as ordained under Article 5 of the Constitution.”
Respect for law is never maintained by force but by
the appreciation of the reasons, appreciating its
veracity and through obedience. Unfortunately,
sometimes, the law falls in crisis due to
misunderstanding or lack of vision”.
13. When confronted to learned counsel for the Petitioner how the
Petitioner filed this petition instead of filing contempt petition under
Article 204 of the Constitution, he states that the matter in hand
relates to the enforcement of the judgments therefore, interpretation of
Article 255 of the Constitution is required by this Court because
judgments enunciated the principles of Article 255 in Paragraph 10
thereof by holding that “ by not taking prompt action to resolve the
issue of administering oath of Chief Minister Punjab, for the sake of
removal of anomaly of non-existence of functional Provincial
Government exposes the President and his lofty office that will
destroy the public trust and respect necessary for such office to
represent the unity of the Republic”. It is pertinent to mention here
that the judgments are binding on the Respondents under Article 201
of the Constitution since these have been passed by referring to the
principles enunciated in “Hakim Ali Zardari Versus The State and
another” (PLD 1998 Supreme Court 1), “Mst. Amina Begum and
others Versus Mehar Ghulam Dastgir” (PLD 1978 Supreme Court
220), “Justice Khurshid Anwar Bhinder Versus Federation of
Pakistan and another” (PLD 2010 Supreme Court 483) and “All
Pakistan Newspapers Society and others Versus Federation of
Pakistan and others” (PLD 2004 Supreme Court 600) by the
Hon’ble Supreme Court of Pakistan which are binding under Article
189 of the Constitution.
Writ Petition No.27186 of 2022 8
14. In “Mehdi Hassan, Additional Secretary, Food and Forests
Department, Government of West Pakistan and another Versus
Zulfiqar Ali, Conservative of Forest, Development Circle, Lahore”
(PLD 1960 (W.P.) Lahore 751) the Court has held that “when an
order passed by the High Court in the exercise of writ jurisdiction is
not complied with, two procedures are open to the person aggrieved.
He may pray for further directions when there can be a bona fide
dispute as to what is the effect of the order or he may apply for under
the contempt of Courts Act, 1926. In the first case, the Court may
after determining the effects of its order give further directions for its
enforcement. Such an order would not be an order in the exercise of
its criminal jurisdiction. The Court which issues a writ can be moved
for its implementation, but such further proceedings would be
proceedings in the very same petition for it. If a court has already
issued a writ, the Court can be approached for an interpretation of its
orders for its enforcement, but these proceedings which may be call
proceedings in execution or proceedings in implementation, are a
continuation of the previous proceedings”.
15. It is to be noted that this Court, for the protection of
fundamental rights, has already given directions to the concerned
authorities in “SYED GHULAM MOIN UL HAQ GILLANI Versus
PROVINCE OF PUNJAB etc” (2021 CLC 1286 Lah) by observing
that “it is the duty of the Court to protect Fundamental Rights
provided and guaranteed under the Constitution, and Article
199(1)(c) of the Constitution empowers this Court to issue any
appropriate directions for the enforcement of Fundamental Rights,
conferred by the Constitution in its Chapter-I of Part II, even to
private persons”.
16. For what has been discussed above and in the light of
directions/suggestions given by this Court in the judgments and the
law laid down by the Hon’ble Supreme Court of Pakistan which are
binding on the Courts under Article 189 of the Constitution, this
petition is allowed and the Respondent No.1 is directed to convey the
Writ Petition No.27186 of 2022 9
Speaker National Assembly of Pakistan to administer oath(s) to newly
elected Chief Minister of Punjab tomorrow i.e. 30.04.2022 at 11:30
A.M. at Lahore. The office of this Court is directed to transmit this
order through fax immediately to the office of the Respondent No.1
today.
(JAWAD HASSAN)
JUDGE
Approved for Reporting
JUDGE
Usman*
