LAHORE: A Lahore High Court division bench on Saturday took up a hurriedly filed intra court appeal (ICA) of the Pakistan Tehreek-i-Insaf (PTI) and suspended the observations regarding the conduct of the president of Pakistan and the Punjab governor passed by a single bench in an order for oath taking of Chief Minister Hamza Shehbaz.

Sibtain Khan and 16 other MPAs of the PTI filed the appeal challenging the order by the single bench on a third petition of Hamza Shehbaz against the delay of his oath taking by the president and the governor. The legal team of the PTI also gathered outside the LHC after 11pm on Friday to file the appeal. However, the appeal was filed on Saturday morning and marked before the division bench for a same day hearing.

At the outset of the hearing, the bench comprising Justice Sajid Mahmood Sethi and Justice Tariq Saleem Sheikh asked Advocate Azhar Siddique, the counsel for the PTI, about the maintainability of the appeal since the impugned judgement of the single bench had already been implemented.

The counsel argued that if the bench came to the conclusion that the impugned judgement was nullity in the eye of law, then any superstructure built thereon would automatically fall to the ground and would be of no legal effect. He further argued that neither the president and governor were impleaded as respondents in the constitutional petition, nor any notice of hearing was issued enabling them to controvert the contentions raised by the respondent (Hamza) by filing reply.

However, he said, adverse remarks had been passed against them in the impugned judgement, which were liable to be expunged. He contended that important legal and constitutional questions raised on behalf of the PTI regarding the maintainability of the petition had neither been noted nor repelled with reasons in the impugned judgment.

The counsel argued that mandatory provisions of law were not complied with and the single judge passed the impugned judgment without due process guaranteed under Articles 4 and 10-A of the Constitution. He said for the implementation of decisions passed in two previous petitions by Hamza fresh constitutional petition was not competent and remedy, if any, was by way of filing contempt petition under Article 204 of the Constitution.

Advocate Siddique stated that the high court had no authority to nominate any specific person, including speaker of the National Assembly, for administration of oath to the newly elected chief minister, thus the impugned judgment, being in violation of various provisions of the Constitution as well as applicable law, was unsustainable.

The division bench admitted the appeal for hearing and issued notice to the respondents.

In its order, the bench also issued notices to the attorney general of Pakistan and the advocate general of Punjab for their assistance with an observation that substantial questions of law regarding interpretation of various provisions of the Constitution were involved in the matter.

The bench also referred the matter to the chief justice for the constitution of a larger bench comprising at least five or more judges considering important legal and constitutional questions raised in the appeal.

As an interim relief, the bench suspended the observations made in Para 9 of the impugned judgment, regarding conduct of President of Pakistan Dr Arif Alvi as well as Governor Umar Sarfraz Cheema.

The observations by the single bench read as “Although while passing the judgment 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 non-fulfillment of his constitutional duty thereby violating Article 5 read with Article 189 and 201 of the Constitution.”

Advocate Siddique told the media that the notification of Hamza Shehbaz as chief minister would also be challenged through an application in the main appeal to be heard by a larger bench.

Published in Dawn, May 1st, 2022