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Constitutional Petition No. D-299 of 1986, decided on 2nd September 1986.

---Arts.199, 207(2) & 248--Petition for writ in the nature of Quo Warranto--Grievance being that G could not be appointed as Chief Minister and allowed to be elected as member of Provincial Assembly as he was Judge of the High Court and two years had not elapsed since his ceasing to be in such service--Objections to admission of petition, for hearing on ground that petition was not maintainable without compliance of Art. 248 of Constitution, as Art.248 protected such a personage from being answerable in Court and that no proceedings could commence without notice under Art.248(4) to respondent--Such objections, held, had no validity--Protection contemplated by Art.248 for personages mentioned therein was in respect of powers and functions of their respective offices and secondly requirement of notice was attracted only when relief was claimed in civil proceedings against the President or Governor while in the petition in hand appointment of G as Chief Minister and his holding of office as Member of Provincial, Assembly had been called in question.

---Arts.199, 63(1)(d)(k), 63(2), 113, 127, 130(2) & 260--Revival of Constitution Order, 1985--Writ petition calling in, question validity of appointment of G as Chief Minister and his election as Member of a Provincial Assembly--Question: Whether in view of Arts.63 (1) (d) (k), 63(2), 113, 127, 130(2), 195 & 260 of the Constitution read with Revival of Constitution Order, 1985 the appointment and election of G was valid and whether the respondent was validly given oath of office as Chief Minister on a day when he was not member of the Provincial Assembly--Questions raised in the petition being complex and important relating to interpretation of various provisions of Constitution necessitated admission, petition was admitted to regular hearing--Notices issued to Attorney-General of Pakistan and Advocate- General of the Province.

P L D 1970 S C 98; P L D 1963 S C 486; P L D 1968 Lah. 30; A I R 1965 S C 1892; A I R 1968 Mad. 234; A I R 1965 S C 961 and P L D 1969 S C 42 ref.

Aitzaz Ahsan for Petitioner.

Saeed A. Shaikh, A.-G. Sind (on Court's Notice).

A.A. Fazeel for Respondent.

--Office has raised four objections during scrutiny of this petition before its placement in the Court for Katcha Peshi. Learned counsel for the petitioner requested for nearing in the Court of those objections. Vide order, dated 2-4-1986 passed by the Court, first objection was disposed of as the learned counsel for the petitioner undertook to file the required notification in the Office. For the second objection to the effect that Government of Sind have not been impleaded as Party, Mr. Aitzaz Ahsan stated that it was not necessary for the reason that petition was in the nature of quo warranto. However, by order of the Court this objection was left open to be considered if raised by the respondent after admission of the petition. For hearing of objections 3 and 4 notice was issued to A.-G. Sind and subsequently to the respondent as well.

We have heard learned counsel for the parties and A..-G. Sind. For the sake of convenience objection No.4 being short is taken up first for disposal. This objection is that petition is not maintainable without compliance of Article 248 of the Constitution of

Islamic Republic of Pakistan. This objection is overruled on the short ground for two reasons. Firstly that protection contemplated therein for personages is in respect of powers and performance of functions of their respective officers. Secondly requirement of notice will be attracted only when relief is claimed in civil proceedings against the President or a Governor. In this petition, appointment of respondent as Chief Minister Sind and his holding of office as member Sind Assembly are called in question.

The last objection as stated above is whether this petition is maintainable under Article 199 (1) (b) (ii) of the Constitution, when member of the Assembly cannot be treated as a person holding public office. For that matter even Chief Minister is excluded from definition of "Service of Pakistan" as envisaged in Article 260 of the Constitution. Since this is question of maintainability of the petition, I would like to leave it open for the time being for the reason that the main grievance of the petitioner is that the respondent could not have been appointed as Chief Minister of Sind and allowed to be elected as member of the Sind Assembly because prior to that he was Judge of Sind High Court and in view of the Constitutional bar, two years had not elapsed before he ceased to be in such service.

In support of the 2ontention stated above, learned counsel for the petitioner has relied upon Articles 63(1) (d) (k), 127, 113, 195 and 260 of the Constitution of Pakistan read with Revival of Constitution. Order 1985, which came into effect on 10-3-1985 and explanation at the end of Section 78 of Senate (Election) Act 51/1975 and Sections 19 and 21 of P . P. C . Further reliance was placed on the cases of Farzand Ali. P L D 1970 S C 98. Fazlul Qadir Chowdhry's case P L D 1963 S C 486 and .Muhammad Yousuf's case P L D 1968 Lah. 30.

Mr. A.A. Fazeel, Advocate who was present in the Court on notice as counsel for respondent for hearing of objections only, submitted that the Chief Martial Law Administrator has exempted respondent from the disqualification vide order, dated 27th April, 1985 while exercising powers under Martial Law Order No.104 which is protected with complete validation under Article 270-A of the Constitution. He further stated that the question of disqualification was agitated before the Chief Election Commission and copies of his order dated 5th June, 1986 have been produced in which it is held that respondent is not disqualified from being elected as, and from being, a Member of the Provincial Assembly of Sind at the time of his election. Further reliance was placed on Article 63 (2) of the Constitution. Mr. Aitzaz Ahsan replied that mover in the reference was a different person and was not petitioner in the instant case. Mr. Fazeel further relied upon on Article 199 (2) of, the Indian Constitution and cited the following cases. A I R 1965 S C 1892 at 1896, A I R 1968 Mad. 234 at 236, A I R 1965 S C 961 and P L D 1969 S C 42 at 51.

Another contention raised on behalf of the petitioner is that the respondent was given oath of Office as Chief Minister Sind on 6-4-1985, when on that day, he was not member of the Provincial Assembly of Sind as such the oath was in contravention of Article 130 of the Constitution, which makes it mandatory for the appointment of Chief Minister from among members of the Provincial Assembly.

After hearing learned counsel for both parties and A.-G. Sind. I am of the view that questions raised in this petition are complex and important and relate to the interpretation of various provisions of the Constitution and other laws necessitating admission of this petition. I, therefore, admit this petition to regular hearing. Notice be also issued to the Attorney-General of Pakistan and Advocate- General Sind as very important law-points are involved.

.--I am of the view that the constitutional and legal questions and contentions raised except those already decided by the Full Bench of this Court in Constitution Petition No.D-883 of 1985, being of public importance should be heard and decided after hearing the Attorney-General for Pakistan and the Advocate-General, Sind. So far as objection No.4 is concerned I agree with my learned brother who has overruled it.

I would, therefore, admit the petition to regular hearing.

Issue notice as ordered by my learned brother Sajjad Ali Shah, J.

K.B.A./S-76/K

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