IN THE SUPREME COURT OF PAKISTAN

(Original Jurisdiction)

PRESENT:
Mr. Justice Umar Ata Bandial, CJ
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Muhammad Ali Mazhar

SUO MOTU CASE NO. 1 OF 2023

(Suo Motu Regarding Holding of General Elections
to the Provincial Assemblies of Punjab and KP)

And
CONST. PETITION NO.1 OF 2023

And
CONST. PETITION NO.2 OF 2023

Islamabad High Court Bar Association

Islamabad through its President Muhammad
Shoaib Shaheen, ASC Islamabad
(in Const.P.1/2023)

Muhammad Sibtain Khan and others

(in Const.P.2/2023)
…Petitioner(s)

Versus

Election Commission of Pakistan through

the Chief Election Commissioner, Islamabad …Respondent(s)
and others
(in Const.P.1&2/2023)

For the petitioner : Mr. Abid S. Zuberi, ASC.

Mr. Shoaib Shaheen, ASC.
Assisted by:
Ayan Memon, Adv.
Ms. Amna Khalili, Adv.
Mr. Agha Ali Durrani, Adv.
Mr. Arif Ansari, Adv.
(in Const. P.1 of 2023)

For the petitioner : Syed Ali Zafar, ASC

Mr. Sarfraz Ahmad Cheema, ASC
Mr. Zahid Nawaz Cheema, ASC
SMC.1 of 2023, etc. 2

Ch. Faisal Fareed, ASC.

Mr. Safdar Shaheen Pirzada, ASC
Mr. Ashfaq Ahmed Kharal, ASC
Mr. Amir Saeed Rawn, ASC
(in Const. P.2 of 2023)

On Court’s Notice

For Federation of Pak. : Mr. Shehzad Ata Elahi,

Attorney General for Pakistan
Ch. Aamir Rehman, Addl. AGP
Malik Javaid Iqbal Wains, Addl. AG
Assisted by:
Ms. Mehwish Batool, Adv.
Mr. Aitzaz ul Haque, Adv.
Ms. Maryam Rasheed, Adv.

For President of Pak. : Mr. Salman Akram Raja, ASC

Mr. Amir Malik, AOR
Assisted by:
Malik Ghulam Sabir, Adv.
Mr. M. Shakeel Mughal, Adv.
Mr. Maqbool Ahmed, Adv.
Sameen Qureshi, Adv.

For Governor KP : Mr. Khalid Ishaq, ASC.

For Governor Punjab : Mr. Mustafa Ramday, ASC.

Mr. Jahanzeb Awan, ASC
Mr. Rashid Hafeez, ASC.
Assisted by:
Ms. Zoe K. Khan, Adv.
Mr. Ahmed Junaid, Adv.
Mr. Akbar Khan, Adv.
Mr. Uzair Shafi, Adv.
Barrister Maria Haq, Adv.
Barrister Salman Ahmed, Adv.

For ECP : Mr. Sajeel Shehryar Swati, ASC.

Assisted by:
Barrister Saman Mamoon, Adv.
Ms. Kiran Khadijah, Adv.
Mr. Zafar Iqbal, Special Secy.
Mr. Muhammad Arshad, DG Law
Mr. Khurram Shehzad, Addl. DG Law
Ms. Saima Tariq Janjua, DD (Law)
Ms. Bushra Rasheed, Law Officer
Mr. Zaighum Anees, Law Officer

For Govt. of Punjab : Mr. Muhammad Shan Gul, AG

Malik Waseem Mumtaz, Addl. AG
Mr. Sana Ullah Zahid, Addl. AG
Assisted by:
Mr. Khurram Chughtai, Adv.
Mr. Usman Ghani, Adv.
Mr. Raza Rehman, Adv.
Mr. Ahmed Raza Sarwar,
Addl. Chief Sec. Law (Pb)
SMC.1 of 2023, etc. 3

For Govt. of KPK : Mr. Aamir Javaid, AG

Sardar Ali Raza, Addl. AG
Mian Shafaqat Jan, Addl. AG

For Govt. of : Mr. Asif Reki, A.G

Baluchistan Mr. M. Ayaz Swati, Addl. AG.

For Govt. of Sindh : Mr. Hassan Akbar, A.G

Mr. Saifullah, AAG
(through V.L. Karachi)
Mr. Fauzi Zafar, Addl. AG
Mr. Zeeshan Edhi, Addl. AG

For ICT : Mr. Jehangir Khan Jadoon, AG

For Pak. Bar Council : Mr. Haroon-ur-Rasheed, ASC.

Vice Chairman, PBC
Mr. Hassan Raza Pasha, ASC.
Chairman, Executive Council.

For Supreme Court : Mr. Abid S. Zuberi, ASC.

Bar Association President SCBA
Mr. Muqtadir Akhtar Shabbir, ASC/
Secretary SCBA
Malik Shakeel-ur-Rehman, ASC/ Addl.
Secretary

For PTI : Syed Ali Zafar, ASC.

Ch. Faisal Fareed, ASC.
Mr. Safdar Shaheen Pirzada, ASC
Mr. Ashfaq Kharal, ASC

For PPPP : Mr. Farooq H. Naek, Sr. ASC.

Assisted by:
Barrister Sheraz Shaukat Rajpar

For PML(N) : Mr. Mansoor Usman Awan, ASC.

Mr. Anees Shehzad, AOR.

For JUIP : Mr. Kamran Murtaza, Sr. ASC.

For Jamat-e-Islami : Mr.Ghulam Mohyuddin Malik, ASC

Syed Rifaqat Hussain Shah, AOR.

For PML (Awami) : Mr. Azhar Siddiqui, ASC

Dates of hearing : 27, 28.02.2023.

*********
SMC.1 of 2023, etc. 4

ORDER

Munib Akhtar, J.: On 01.03.2023 these matters were disposed

of majority, by means of a short order that was in the following
terms:

“By a majority of 3:2 (Mr. Justice Syed Mansoor Ali

Shah and Mr. Justice Jamal Khan Mandokhail dissenting)
and 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. Parliamentary democracy is one of the salient

features of the Constitution. There can be no
parliamentary democracy without Parliament or the
Provincial Assemblies. And there can be neither
Parliament nor Provincial Assemblies without the holding
of general elections as envisaged, required and mandated
by and under the Constitution and in accordance
therewith. Elections, and the periodic holding of elections,
therefore underpin the very fabric of the Constitution.
They are a sine qua non for parliamentary democracy, and
ensure that the sacred trust of sovereignty entrusted to
the people of Pakistan is always in the hands of their
chosen representatives.

2. While the holding of general elections has different

aspects and requirements, one that is absolutely crucial is
the timeframe or period in which such elections are to be
held. The Constitution envisages two such periods, being
of sixty and ninety days respectively. In relation to a
Provincial Assembly, the first period applies when the
Assembly dissolves on the expiration of its term under
Article 107 and the second period is prescribed when it is
sooner dissolved under Article 112. The time periods so
set down in Article 224(1) and (2) respectively are
constitutional imperatives that command complete fidelity.
We are here concerned with the dissolution of two
Provincial Assemblies before the expiry of their terms and
therefore to the holding of general elections in relation to
each within 90 days.

3. It is in the foregoing context that three questions

have to be considered by the Court. The Assemblies in
question are those of the Punjab and Khyber
Pakhtunkhwa Provinces, which dissolved on 14.01.2023
and 18.01.2023 respectively. In both cases, the then Chief
Ministers tendered advice to their respective Governors
under Article 112(1) of the Constitution to dissolve the
Assembly. In the case of the Punjab Province the Governor
chose not to act on the said advice so that the Assembly
stood dissolved on the expiry of 48 hours, on the date just
mentioned. In the case of the KPK Province, the Governor
did act on the advice and made an order dissolving the
SMC.1 of 2023, etc. 5

Assembly, on 18.01.2023. The questions which have been

considered with the assistance of learned counsel for the
various parties and the Law Officers are as follows:

1. Who has the constitutional responsibility and

authority for appointing the date for the holding of a
general election to a Provincial Assembly, upon its
dissolution in the various situations envisaged by
and under the Constitution?

2. How and when is this constitutional

responsibility to be discharged?

3. What are the constitutional responsibilities

and duties of the Federation and the Province with
regard to the holding of the general election?

4. The Constitution envisages three situations for the

dissolution of a Provincial Assembly. These, in the context
of the role of the Governor, are as follows.

5. The first situation is set out in clause (2) of Article

112. This envisages the dissolution of the Assembly by an
order made by the Governor at his discretion, subject to
the previous approval of the President and fulfillment of
the conditions set out therein. In this situation, the
Assembly cannot, and does not, dissolve without an order
being made by the Governor, and dissolves immediately on
the making of the order.

6. The second situation is set out in clause (1) of

Article 112, when the Chief Minister advises dissolution.
This situation can be divided into two sub-categories,
which are as follows:

a. The first is where the Governor acts on the advice

tendered and makes an order dissolving the
Assembly. Here, the Assembly dissolves immediately
on the making of the order.

b. The second sub-category is where the Governor does

not make an order of dissolution on the advice
tendered. Here, the Assembly stands dissolved on
the expiry of forty-eight hours from the tendering of
the advice by the Chief Minister (i.e., by the efflux of
time), and that does not require an order of the
Governor.

7. The third situation is set out in Article 107. This

provides that unless an Assembly is sooner dissolved (i.e.,
in terms of either of the two preceding situations), it
stands dissolved after a term of five years. Here, the
Governor has no role at all; the Assembly dissolves by the
efflux of time.

8. Article 105(3)(a) provides that where the Governor

dissolves the Assembly he shall appoint a date for the
SMC.1 of 2023, etc. 6

holding of a general election thereto, being a date not later

than 90 days from the date of the dissolution.

9. The Elections Act, 2017 (“2017 Act”) has been

enacted by Parliament in exercise of its legislative
competence under the Constitution. That includes, in
addition to Entry 41 of the Fourth Schedule, a specific
provision in the body of the Constitution, being Article
222, that expressly articulates a list of matters relating to
elections which are within the Federal domain. The 2017
Act applies, inter alia, to both the National and the
Provincial Assemblies. Section 57(1) thereof provides that
the President shall “announce the date or dates of the
general elections after consultation with the Commission”.

10. On a conjoint reading of the foregoing provisions we

conclude and hold as follows:

a. In situations where the Assembly is dissolved by an

order of the Governor, the constitutional
responsibility of appointing a date for the general
election that must follow is to be discharged by the
Governor as provided in terms of Article 105(3)(a).
These are the situations described in paras 5 and
6(a) above.

b. In situations where the Assembly is not dissolved by

an order of the Governor, the constitutional
responsibility of appointing a date for the general
election that must follow is to be discharged by the
President as provided in terms of s. 57(1) of the
2017 Act. These are the situations described in
paras 6(b) and 7 above.

11. Since the general election on a dissolution of a

Provincial Assembly has to be held within a time period
stipulated by the Constitution itself, which is a
constitutional imperative, the President or, as the case
may be, the Governor must discharge the constitutional
responsibility of appointing a date for the said election
swiftly and without any delay and within the shortest time
possible. The Election Commission must proactively be
available to the President or the Governor, and be
prepared for such consultation as required for a date for
the holding of general elections.

12. It follows from the foregoing that in relation to the

dissolution of the Punjab Assembly, to which the situation
described in para 6(b) above applied, the constitutional
responsibility for appointing a date for the general election
that must follow was to be discharged by the President.
However, in relation to the dissolution of the KPK
Assembly, to which the situation described in para 6(a)
above applied, the constitutional responsibility for
appointing a date for the general election that must follow
was to be discharged by the Governor.

13. It further follows that the order of the President

dated 20.02.2023 is constitutionally competent and
SMC.1 of 2023, etc. 7

subject to what is observed below, it is hereby affirmed

insofar as it applies to the Punjab Assembly; but the same
is constitutionally invalid insofar as it applies to the KPK
Assembly and is therefore hereby set aside. It also follows
that the Governor of KPK Province, inasmuch as he has
not appointed a date for the holding of the general election
to the Assembly of that Province is in breach of his
constitutional responsibility.

14. It is further declared and directed as follows in

relation to the matters before the Court:

a. In ordinary circumstances the general election to

the Punjab Assembly ought to be held on
09.04.2023, the date announced by the President in
terms of his order of 20.02.2023. However, we are
informed that on account of the delay in the
emergence of the date for the holding of the general
election, it may not be possible to meet the 90 day
deadline stipulated by the Constitution. It is also the
case that (possibly on account of a
misunderstanding of the law) the Election
Commission did not make itself available for
consultation as required under s. 57(1) of the 2017
Act. The Election Commission is therefore directed
to use its utmost efforts to immediately propose,
keeping in mind ss. 57 and 58 of the 2017 Act, a
date to the President that is compliant with the
aforesaid deadline. If such a course is not available,
then the Election Commission shall in like manner
propose a date for the holding of the poll that
deviates to the barest minimum from the aforesaid
deadline. After consultation with the Election
Commission the President shall announce a date for
the holding of the general election to the Punjab
Assembly.

b. The Governor of the KPK Province must after

consultation with the Election Commission
forthwith appoint a date for the holding of the
general election to the KPK Assembly and the
preceding clause (a) shall, mutatis mutandis, apply
in relation thereto.

15. It is the constitutional duty of the Federation, in

terms of clause (3) of Article 148, “to ensure that the
Government of every Province is carried on in accordance
with the provisions of the Constitution”. There can be no
doubt that this duty includes ensuring that a general
election to the Assembly of every Province is held, and
enabled to be held, in a timely manner within the period
set out in the Constitution. This duty is in addition to, and
applies independently of, the duty cast under Article 220
on “all executive authorities in the Federation and in the
Provinces to assist the Commissioner and the Election
Commission in the discharge of his or their functions”. It
follows that the Federation, and in particular the Federal
Government, is, inter alia, obligated, on an immediate and
urgent basis, to forthwith provide the Election
SMC.1 of 2023, etc. 8

Commission with all such facilities, personnel and

security as it may require for the holding of the general
elections. In like manner, it is the duty of the Provincial
Governments, acting under the Caretaker Cabinets, to
proactively provide all aid and assistance as may be
required by the Election Commission. The duty cast upon
the authorities as set out in s. 50 of the 2017 Act must
also be discharged forthwith and proactively.

16. The three matters before the Court are found

maintainable and stand disposed of as above.”

We may note that all five members of the Bench signed the
above order. The two learned members in dissent respectively
wrote in manuscript above their signatures as follows: “I have
appended my separate order” (Syed Mansoor Ali Shah, J); and “I
have appended my note along with the main order” (Jamal Khan
Mandokhail, J). The learned Judges in minority released a joint
short order, which was signed by (and only by) the two of them.

2. The following are the reasons for the short order of the
majority. We may note that our two learned colleagues in
dissent released their (joint) detailed reasons on 27.03.2023.

3. We begin, for reasons that will later become apparent, by

briefly setting out the chronology of the proceedings of these
matters. Initially, the Hon’ble Chief Justice, as master of the
roster, constituted a nine-member Bench, before which these
matters were placed on 23.02.2023. That Bench comprised of
the following Judges: the Hon’ble Chief Justice, Mr. Justice Ijaz
ul Ahsan, Mr. Justice Syed Mansoor Ali Shah, Mr. Justice
Munib Akhtar, Mr. Justice Yahya Afridi, Mr. Justice Sayyed
Mazahar Ali Naqvi, Mr. Justice Jamal Khan Mandokhail, Mr.
Justice Muhammad Ali Mazhar and Mr. Justice Athar
Minallah. On 23.02.2023 no substantive hearing took place
and the matters were not taken up on the merits. The order of
the Court for that day was made by majority, with four of the
learned Judges (Syed Mansoor Ali Shah, Yahya Afridi, Jamal
Khan Mandokhail and Athar Minallah, JJ) making their own
orders. These orders are, for purposes of the record, appended
to this judgment as Annex A. It is pertinent to note that
through his order Yahya Afridi, J, for “detailed reasons to be
recorded later”, dismissed all three matters. It was also
SMC.1 of 2023, etc. 9

observed as follows (emphasis supplied): “… I find that my

continuing to hear the said petitions is of no avail. However, I
leave it to the Worthy Chief Justice to decide my retention in
the present bench hearing the said petitions”. Athar Minallah,
J in his order expressed his concurrence “with the articulate
opinion recorded by my learned brother Justice Yahya Afridi”.
In the event, Yahya Afridi, J released his detailed reasons on
31.03.2023. Athar Minallah, J also released reasons on
07.04.2023.

4. The matters were, as ordered on 23.02.2023, listed

before the nine-member Bench on the following day and
thereafter adjourned to 27.02.2023. In between, the members
of the Bench had an internal meeting in the ante-room of the
Court and subsequent thereto a unanimous order signed by all
nine members was made, and released on 27.02.2023. That
order is annexed to this judgment as Annex B. For
convenience, the order is reproduced below:

“Keeping in view the order dated 23.02.2023 and the

additional notes attached thereto by four of us (Justice
Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice
Jamal Khan Mandokhail and Justice Athar Minallah) as
well as the discussion/deliberations made by us in the
ante-Room of this Court the matter is referred to the
Hon’ble Chief Justice for reconstitution of the Bench.”

5. After the above order the Hon’ble Chief Justice, as the

master of the roster, constituted a five-member Bench to hear
these matters, i.e., the present Bench. That was the Bench that
actually sat and heard the matters on 27.02.2023 and
28.02.2023 and thereafter decided the same in terms as noted
above. Thus, (and, again, the relevance of this will emerge later
in the judgment) these matters were placed before only two
Benches: initially a nine-member Bench and then a five-
member Bench. At no time was any other Bench of a different
strength/composition ever constituted by the Hon’ble Chief
Justice, nor did any other Bench ever exist or sit in relation to
these matters.

6. We now turn to the submissions made by learned

counsel for the parties. Mr. Ali Zafar, learned counsel
SMC.1 of 2023, etc. 10

appearing in CP 2/2023, submitted that on 12.01.2023 the

then Chief Minister of Punjab advised the Governor to dissolve
the Punjab Assembly in exercise of powers conferred by Article
112(1) of the Constitution. Since the Governor chose not to act
on that advice, the Assembly stood dissolved by efflux of time
48 hours later, on 14.01.2023. On 17.01.2023, the then Chief
Minister of Khyber Paakhtunkhwa advised the Governor to
dissolve the KPK Assembly in exercise of the aforesaid powers.
In this case, the Governor chose to act on the advice and
dissolved the Assembly on 18.01.2023. Subsequent thereto the
Speaker of the Punjab Assembly wrote to the Governor on
20.01.2023 asking him to appoint the date for the general
election to that Assembly in exercise of powers conferred on the
Governor by Article 105(3). Learned counsel submitted that
thereafter, on 24.01.2023, the Election Commission of Pakistan
(“Commission”) wrote separately to both the Governors of
Punjab and KPK Provinces, asking them to appoint dates for
the general elections to the Assemblies thereof. The
Commission also gave a range of dates for consideration by the
Governors. Learned counsel submitted that the Governor
Punjab responded to the Commission’s letter on 01.02.2023. In
that, and subsequent correspondence, the stand of the
Governor was that since the Assembly was not dissolved on an
order made by him Article 105(3) did not apply and the matter
of the appointment of the date would therefore have to be dealt
with by other provisions of the Constitution and the law, being
the Elections Act, 2017 (“2017 Act”). The Governor KPK also
wrote (on 31.01.2023) to the Commission but did not appoint
any date. Learned counsel submitted that both Governors inter
alia also referred to the law and order and security situation in
the Provinces which would have to be taken into account. It
was emphasized that reference to such considerations was
extraneous; the matter was only in respect of the competent
authority for appointing a date for the general elections and
nothing more.

7. Learned counsel submitted that on 29.01.2023 a writ

petition was filed by the Pakistan Tehreek e Insaf (PTI) in the
Lahore High Court. That petition and other matters were
SMC.1 of 2023, etc. 11

placed before a learned Single Judge who decided the same

vide judgment dated 10.02.2023 (reported as Pakistan Tehreek
e Insaf v Governor Punjab and others PLD 2023 Lahore 179). In
that judgment, the learned Judge, by relying on Articles 218
and 219, held that the date for the general election had to be
given by the Commission as the Punjab Assembly had not been
dissolved by order of the Governor. It was held in the operative
part of the judgment as follows (emphasis in original): “…the
“ECP” is directed to immediately announce the “date of
election” of the Provincial Assembly of Punjab with the
Notification specifying reasons, after consultation with the
Governor of Punjab, being the constitutional Head of the
Province, to ensure that the elections are held not later than
ninety days as per the mandate of the “Constitution”.” It
appears that the relevant provisions of the 2017 Act, and in
particular s. 57(1), were not noticed in the judgment.

8. Continuing with his submissions, learned counsel

submitted that thereafter there was correspondence, and also
meetings, between the Governor and the Commission but
nothing fruitful emerged, inasmuch as no date was
forthcoming for the holding of the general election. It appears
that the judgment of the learned Single Judge was then
challenged by the Governor by means of an Intra-Court Appeal
on or about 16.02.2023. The stance of the Governor was that it
was not for him to give the date for the general election. On
that ICA notices were issued by the learned Division Bench,
and the matter was fixed from time to time but without any
substantive hearing. Ultimately, we were informed, the ICA was
fixed on 27.02.2023 when it was adjourned sine die by reason
of the present matters pending in this Court. In the meanwhile,
a contempt petition was also apparently filed in the High Court
in relation to the alleged non-performance of the directions
given by the learned Single Judge in the aforementioned
judgment.

9. Learned counsel further submitted that in the meantime

the President of Pakistan had also stepped in. In a letter
written to the Commission on 08.02.2023 the President
SMC.1 of 2023, etc. 12

referred to the dissolution of the two Assemblies and after

referring to various provisions of the Constitution and the 2017
Act expressed his disquiet at the delay in the announcing of
the date for the general elections. Thereafter, the President
again wrote to the Commission on 17.02.2023 and referred to
the apathy of the latter and the inaction on its part. The
President invited the Commission to meet with him on
20.02.2023 “for consultation in terms of Section 57(1) of the
Elections Act, 2017”. The Commission wrote to the President
on 18.02.2023 in reply to his letter of 08.02.2023 referring to
its position with regard to the elections in both Provinces and
setting out its own version of how events had unfolded since
the dissolution of the Assemblies. The Commission also wrote
to the President on 19.02.2023, this time with reference to his
letter of 17.02.2023 and did not commit itself to any meeting
with the latter. Indeed, the letter, while referring to an internal
meeting of the Commission scheduled for 20.02.2023, stated
as follows: “For the subject matter at hand, due to reasons
stated above and matter being subjudice at various fora,
regrettably the Commission may not be able to enter into a
process of consultation with the office of the President”. This
led to the President making an order on 20.02.2023, in
exercise of powers under s. 57(1) of the 2017 Act, whereby
09.04.2023 was appointed as the date for the holding of the
general elections to both the Punjab and KPK Assemblies.

10. As regards the KPK Province, learned counsel submitted

that even though the Governor had himself dissolved the
Assembly while acting on the Chief Minister’s advice no date
had yet been appointed by him for the general election. It was
submitted that this was a clear violation of the Constitution
inasmuch as here the position was clear: the Governor had to
appoint the date in terms of Article 105(3). Learned counsel
referred to correspondence between the Commission and the
Governor but despite the same no date had been given. It was
also submitted that more than one (and, apparently, three) writ
petitions were pending in the Peshawar High Court in this
regard, but no substantive hearing had yet taken place in
relation thereto. Thus, in respect of both Provinces, learned
SMC.1 of 2023, etc. 13

counsel submitted, even the very first step towards holding the
general elections had not been taken. It was submitted that in
both cases, the general elections had to be held within 90 days
of the date of dissolution, which was a mandatory requirement.
The deadline in this regard was fast approaching but nothing
had been done so far. It was therefore absolutely essential for
this Court to step in and make the appropriate orders by way
of declarations and directions so that the rights of the
electorates in both Provinces, and their fundamental rights,
were protected and enforced. Learned counsel prayed
accordingly.

11. Mr. Abid Zuberi, learned counsel in CP 1/2023,

endorsed the submissions of Mr. Ali Zafar and submitted that
the essential question before the Court was as to when the
general election was to be held, and who had to appoint the
date for the same. As to the first, learned counsel submitted
that there could be no doubt that the elections had to be held
within the stipulated period of 90 days. That period began as
soon as the Assembly stood dissolved, whether by efflux of time
(48 hours) or the Governor having made an order on the advice
of the Chief Minister. As to the second, learned counsel
submitted that if the latter situation applied, as it did in the
case of the KPK Assembly, then the Governor was bound to
give the date for the general election under Article 105(3). If the
former situation applied, as it did in the case of the Punjab
Assembly, then the power lay with the President in terms of s.
57(1) of the 2017 Act. That was also the position where the
Assembly stood dissolved on the expiry of its five year term. It
was further submitted that when acting in terms of s. 57(1) the
President was not bound to act on the advice of the Prime
Minister. Certain case law was also referred to in this regard.

12. The learned Attorney General submitted that the

questions before the Court required consideration of the
following points. Firstly, the power conferred on the Governor
in terms of Article 105(3), which corresponded to the power of
the President under Article 48(5), did not apply to the situation
at hand. That power, it was submitted related only to a
SMC.1 of 2023, etc. 14

dissolution under Article 112(2), which corresponded to Article

58(2) in relation to the National Assembly. Secondly, the
learned Attorney General submitted that the power to appoint
the date for a general election was a power coupled with a duty.
The appointing of the date was only directory though the
learned Attorney General accepted that Article 224 was
applicable to all situations of dissolution, the relevant period
for the holding of general election (i.e., sixty or ninety days)
applying as appropriate. Thirdly, it was submitted that
constitutional provisions and their requirements could not be
interpreted on the basis of statutes and therefore, s. 57(1) did
not control the appointment of a date of the general election. In
any case, it was contended, s. 57 spoke only of the date being
“announced” which, it was submitted, was different from
appointing the date. Finally, keeping all of the above points in
mind, the learned Attorney General submitted, it was the
Commission that was to appoint the date for general elections
in terms of its powers and responsibilities under Articles 218
and 219, except the two situations noted above, i.e., in relation
to dissolutions under Article 112(2) and 58(2). That was the
crux of the case as per the submissions of the learned Attorney
General.

13. Expanding on the above submissions, the learned

Attorney General referred to Articles 48 and 58 as originally
adopted when the Constitution came into force in 1973 and
placed before the Court the evolution of these, and related,
provisions over the decades as the Constitution was
successively amended. It was submitted that when the
predecessor legislation to the 2017 Act, i.e., the Representation
of Peoples Act, 1976 (“1976 Act”) was originally enacted, its s.
11 had provided that the date for the holding of a general
election would be given by the Commission. The President, or
any other authority, did not have any role to play in this
regard. It was only subsequently that the said section was
substituted so as to confer the power on the President, a
position that was continued when the earlier legislation was
replaced with the 2017 Act. With regard to the position of the
Commission reference was also made to the last part of Article
SMC.1 of 2023, etc. 15

222, which expressly provides that no legislation could take

away or abridge any of the powers conferred on the
Commission or the Chief Election Commissioner by the
Constitution. Therefore, it was submitted, in relation to the two
dissolutions at hand and the general elections thereto, it was
for the Commission to appoint the dates after consultation with
the stakeholders/parties. It was further submitted that all
efforts had to be made to hold the general elections within the
stipulated 90 day period but if that was not possible for any
constitutionally permissible reason then the Commission could
even appoint a date beyond that. Reliance was placed on
Pakistan Peoples Party Parliamentarians and others v
Federation of Pakistan and others PLD 2022 SC 574, 648. As
regards s. 57(1), the learned Attorney General submitted that
that power was only statutory in nature and could not override
the constitutional provisions, which placed the power in the
hands of the Commission. The maintainability of the present
matters was also challenged, in view of the pending
proceedings before the Lahore and Peshawar High Courts. It
was prayed that the matters be disposed of in the above terms.

14. Mr. Sajeel Shehryar Swati, learned counsel for the

Commission submitted that the constitutional power lay with
the Commission to give the dates for bye-elections, elections to
the Senate and the election of the President. Insofar as general
elections to the Provincial Assemblies were concerned, it was
submitted that the power lay with the Governors in relation to
a dissolution thereof in all situations except where Article 107
applied, i.e., the term of the Assembly simply expired. It was
only in this last situation that s. 57(1) applied, and the date
had to be given by the President. Since that was not the
situation at hand, learned counsel submitted that the power to
appoint the dates lay with respectively with the Governors of
Punjab and KPK.

15. Mr. Khalid Ishaque, learned counsel who appeared for

the Governor, KPK however took a different position. Learned
counsel submitted that the constitutional power lay with the
Commission even in the situation at hand and not the
SMC.1 of 2023, etc. 16

Governor. The latter had the power to appoint the date only if
he dissolved the Assembly in terms of Article 112(2). Since that
was not the case the Governor stood absolved of all
responsibility in the present situation. The learned Advocate
General KPK, who appeared on behalf of the caretaker
Government endorsed the submissions of the learned Attorney
General and submitted that in the present situation the power
and duty lay with the Commission to give the date for the
general election. Reference was also made to s. 69 of the 2017
Act. Mr. Mustafa Ramday, learned counsel who appeared for
the Governor, Punjab submitted that the power and duty of the
Governor arose only if the Assembly was dissolved on his order.
That was patently not the case. Therefore, in the present
situation it was not within his ambit to appoint the date.
Learned counsel was content to rest his submissions to this
extent since, it was submitted, it was not necessary for him to
elaborate as to where exactly the duty and power lay in relation
to the present dissolution of the Punjab Assembly. The learned
Advocate General Punjab submitted that in the facts and
circumstances of the present case, the power did not lie with
the President to give the date for the general election to the
Punjab Assembly.

16. Mr. Farooq Naek, learned counsel who appeared for the
Pakistan Peoples Party Parliamentarians (PPPP) submitted that
the political parties, and certainly the party whom he
represented, were not averse to the holding of the general
elections within the stipulated period. However, it was
important that general elections be held in a conducive
environment to ensure that the whole process was in
accordance with Article 218, i.e., the elections were held
honestly, justly and fairly. In this context learned counsel
referred to the hazards and difficulties on multiple fronts facing
the nation at this time. It was submitted that the matters
before the Court were all under Article 184(3) of the
Constitution. As jurisprudentially developed by the Court, this
provision conferred a unique power, which had to be carefully
exercised. The provision conferred a power that was
inquisitorial and not adversarial, and it had to be read along
SMC.1 of 2023, etc. 17

with Article 187. Certain case law was referred to. Learned
counsel then referred to various provisions of the Constitution
relating to the matters at hand, i.e., the holding of the general
elections. It was submitted that where the Governor dissolved
the Assembly then it was for him to appoint the date. However,
where that was not the situation it was for the President under
s. 57(1). But the President was there bound to act on the
advice of the Prime Minister. Learned counsel also questioned
the maintainability of the present matters, in view of the
petitions/proceedings pending in the High Courts. The
legitimacy of the superior Courts was at risk and the Court
should therefore be careful in exercising its power of judicial
review.

17. Mr. Mansoor Awan, learned counsel who appeared for

the Pakistan Muslim League (N) (PML(N)) endorsed the view
taken by the learned Attorney General and submitted, referring
to the judgment of the learned Single Judge in the Lahore High
Court that that was given by that Court on a petition filed by
the PTI. It was submitted that CP 2/2023 was essentially one
filed by the PTI and therefore that party could not maintain
such proceedings in this Court in view of the Lahore High
Court judgment. Reference was also made to the ongoing
census exercise and it was submitted that the appropriate
course would be for the general elections in both Provinces to
be held after than exercise, and the consequent reallocation of
seats and re-demarcation of constituencies had been
completed.

18. Mr. Kamran Murtaza, learned counsel who appeared for

the Jamiat Ulema Islam (JUI), read out the joint statement that
was filed on 24.02.2023 on behalf of the PML(N), the PPPP and
the JUI. Learned counsel submitted that in the present
situation, it was for the Governors of both the Provinces to give
the dates for the general elections.

19. Finally, Mr. Salman Akram Raja, learned counsel for the
President, submitted that insofar as the Punjab Assembly was
concerned the power and duty lay with the President under s.
SMC.1 of 2023, etc. 18

57(1) to appoint the date for the general election. In exercising

this power, the President was not bound by the advice of the
Prime Minister. It was submitted that the word “announce” as
used in that section had to be understood in the sense of fixing
or appointing the date, and not otherwise. Referring to the
order of the President of 20.02.2023 whereby he had appointed
09.04.2023 as the date for the general election for both
Assemblies, learned counsel submitted on instructions that the
President, on reflection, accepted that the power to appoint the
date for the KPK Assembly lay with the Governor as the latter
had made the order for the dissolution thereof. Therefore,
learned counsel stated at the Bar, that the President should be
taken as having withdrawn his order to the extent of the KPK
Assembly.

20. We have heard learned counsel as above and considered

the relevant constitutional and statutory provisions and the
material and case law referred to and relied upon. The
fundamental importance of periodically holding general
elections to elect, for the National Assembly and each of the
Provincial Assemblies, the chosen representatives of the people
who are to exercise the sacred trust of sovereignty that Allah
has reposed in the people of Pakistan, can never be
overemphasized. As already noted in the first para of the short
order: Parliamentary democracy is one of the salient features of
the Constitution. There can be no parliamentary democracy
without Parliament or the Provincial Assemblies. And there can
be neither Parliament nor Provincial Assemblies without the
holding of general elections as envisaged, required and
mandated by and under the Constitution and in accordance
therewith.

21. General elections are to be held periodically as stipulated

by the Constitution, as each election cycle comes to an end and
in so ending triggers and gives birth to the next. This
continuous and repeated recourse to the political sovereign
(within the sacred limits noted in the Preamble to the
Constitution) is a sine qua non for parliamentary democracy.
Furthermore, given the federal nature of the Constitution each
SMC.1 of 2023, etc. 19

Assembly is for this purpose a separate “unit” which must,

even though the substantive and procedural constitutional and
statutory requirements are essentially the same, be treated in
its own right and in and of itself. Thus, e.g., if in relation of a
given election cycle elections to the National Assembly and all
the Provincial Assemblies are held on the same day, it must
always be kept in mind that, constitutionally speaking, there
are in law and fact five separate general elections that are
being so held.

22. We are, in these matters, primarily concerned with the

very first step in the election process that marks the beginning
of each election cycle: the appointing of the date for the general
election. Without such date the general election cannot be held
at all and whole constitutional scheme of elected parliamentary
democracy, at the very least in relation to the Assembly in
question, grinds to a halt. Furthermore, although the
Constitution envisages different ways in which an Assembly
may be dissolved (see paras 4 to 7 of the short order) it
expressly imposes specific time limits in relation to each, being
either 60 days or 90 days as applicable. These limits are
constitutional imperatives. Since a general election is to be
held within constitutional time limits and the Commission has
to map the actual electoral process onto the date appointed (as
required by s. 57(2) of the 2017 Act), the crucial question
becomes: which is the authority in whom is reposed the
constitutional power and responsibility to appoint the date for
the holding of a general election? This is the essence of the
issue raised by the first two questions noted in para 3 of the
short order.

23. In addressing the question posed, we are of the view that

certain broad considerations must be kept in mind. Firstly,
given the tight time limits imposed by the Constitution, the
said authority must be known and identified with clarity from
the very day—indeed, moment—that an Assembly stands
dissolved. It is in fact this lack of clarity (at least in relation to
one situation), and the consequent delay, that led to these
proceedings. Secondly, that authority must be able to act
SMC.1 of 2023, etc. 20

swiftly and immediately since literally every day counts. This is

all the more so in relation to when an Assembly stands
dissolved at the conclusion of its term. There, the time limit is
60 days. The electoral process laid out in s. 57(2) (referred to as
the Election Programme) is spread over more than 50 days.
Given that the subsection also gives the Commission seven
days to issue said programme it is readily apparent that the
position is, time wise, very tight indeed. Although the position
is somewhat suppler in those situations where the dissolution
is such as allows for the general election to be held within 90
days, the constitutional rules and principles remain the same.
The electoral process must be launched in all situations if not
immediately then at least very swiftly, and (much) sooner
rather than later.

24. Thirdly, in identifying the authority which is to appoint

the date uniformity ought to be achieved to the maximum
extent possible. The multiplicity of situations in which an
Assembly can be dissolved should not lead to a multiplicity of
authorities: any divergence in this context should be reduced
and kept to the minimum. The constitutional reason remains
the same as already noted: the necessity of remaining within
the timeframe(s) imposed by the Constitution, and the
desirability of the electoral process being initiated and set in
motion very swiftly. As we shall see, this is indeed what is
reflected in the relevant provision of the 2017 Act once it is
understood and applied in the correct constitutional sense.
Having set out what, in our view, are the broad parameters for
the proper understanding of the primary question posed, we
turn to its consideration.

25. Of the various situations in which an Assembly stands

dissolved, the first (identified in para 5 of the short order) poses
no special problem, and we note it in passing. All the learned
counsel agreed, in our view rightly so, that when the Governor
dissolves the Assembly in his discretion, in the particular
circumstances envisaged by Article 112(2), then Article 105(3)
applies and the date for the general election is to be given by
him. The same is the position as regards the dissolution of the
SMC.1 of 2023, etc. 21

National Assembly by the President in his discretion under

Article 58(2). We therefore move immediately to the second
situation, identified in para 6 of the short order and its two
sub-categories. The first sub-category applies in relation to the
present dissolution of the KPK Assembly since the Assembly
was dissolved on an order made by the Governor acting on the
Chief Minister’s advice. The second sub-category applies in
relation to the present dissolution of the Punjab Assembly
since the Assembly dissolved by efflux of time, the Governor
not having acted on the advice tendered. Which is the authority
that has the constitutional responsibility to appoint the date
for the general election in each case?

26. The various solutions proposed and answers given in this

regard by learned counsel have been noted above. Keeping in
mind the constitutional provisions referred to, and also
Parliament’s legislative expression in the shape of s. 57(1), in
principle three possibilities offer themselves: the President, the
Governor or the Commission. Now, the Constitution does not
expressly refer to any power of the Commission with regard to
the appointment of the date. Learned counsel who argued for
this result located the power within what are, according to
them, the (very) capacious folds of Articles 218 and 219. Both
the President and the Governor find express mention in the
Constitution in the present context, in terms of Articles 48(5)
and 105(3) respectively. However, that power is conditional:
“Where the [President/Governor] dissolves the [National/
Provincial] Assembly….” Finally, the President is expressly the
repository of the power in terms of s. 57(1) of the 2017 Act. The
Governor finds no mention in the Act, and the role of the
Commission in this context is consultative. There is here also
the related question as to whether the President is to act on the
advice of the Prime Minister.

27. We begin by making some general observations. Firstly,

the question of the authority that is to appoint the date for a
general election sounds on the constitutional plane, in the
sense that it cannot simply be a statutory power. The reason is
that a power wholly statutory in nature is created, and exists,
SMC.1 of 2023, etc. 22

in terms of the statute; if the statute goes so does the power.

Clearly that cannot be true for a general election. Such
elections are a fundamental constitutional requirement laid out
in and by the Constitution itself. The holding of such elections
and, as here specifically relevant, the appointment of the date
for the same cannot be defeated by reason of there being a
deficient law, or even no law, on the subject. At the same time,
it must be kept in mind that the Constitution does confer
legislative competence on Parliament (as stated in para 9 of the
short order) with regard to elections in broad terms, subject to
the limitation imposed in the last part of Article 222. Secondly,
notwithstanding the federal structure of the Constitution, the
legislative competence in relation to both the National and the
Provincial Assemblies is vested exclusively in Parliament. A
preliminary answer to the question now under consideration
can therefore be stated as follows. To the extent that the
Constitution itself expressly identifies the authority for
appointing the date for a general election it will obviously
prevail. Any statutory provision must give way to the
constitutional text. However, where the Constitution is silent,
the question then is not whether Parliament has the legislative
competence to give an answer but rather to what extent can
Parliament go in this regard?

28. To address this question we need to consider, as

submitted by the learned Attorney General, the 1976 Act and
how it stood when enacted. The relevant provision there was s.
11. It was subsequently substituted, and also amended
substantially. Thereafter, when the 1976 Act was replaced with
the 2017 Act, the relevant power was placed in s. 57(1). It will
be convenient to put these provisions in tabular form. (We may
note that both statutes defined “Assembly” as meaning both
the National and Provincial Assemblies, as appropriate.) As
presently relevant the provisions are as follows:

Section 11 (as Section 11 (as up to Section 57

originally enacted) 2017)
(1) For the purpose of (1) As soon as may be (1) The President
holding general necessary and shall announce the
elections to an practicable the date or dates of the
Assembly, the President makes an general elections after
Commission shall, by announcement of the consultation with the
SMC.1 of 2023, etc. 23

notification in the date or dates on Commission.

official Gazette, call which the polls shall
upon the electors to be taken, the Election (2) Within seven days
elect a member from Commission, not later of the announcement
each constituency: than thirty days of under sub-section (1),
such announcement the Commission
Provided that, in the shall, by notification shall, by notification
case of general
in the official Gazette, in the official Gazette
elections to be held to call upon a and by publication on
an Assembly following constituency to elect its website, call upon
its dissolution, such a representative or the voters of the
notification shall be representatives and notified Assembly
issued within two appoint- … constituencies to elect
days of such their representatives
dissolution becoming (g) the date or dates in accordance with an
effective. on which a poll shall, Election Programme,
if necessary be taken, which shall
(2) In the notification which or the first of stipulate— …
issued under sub- which shall be a date
section (1), the not earlier than the (i) the date or dates
Commission shall, in twenty-second day on which a poll shall,
relation to each after the publication if necessary, be
constituency, specify- of the revised list of taken, which or the
… candidates. first of which shall be
a date not earlier
(d) a day, at least than the twenty-
forty-two days after eighth day after the
the nomination day, publication of the
for the taking of the revised list of
poll. candidates.

29. It will be seen that as originally enacted the power in

terms of s. 11 to appoint the date for a general election lay with
the Commission. However, it was an oblique grant in the sense
that it was but the last step of the election schedule which had
to be issued by the Commission. Section 11 was then
substituted/amended such that the power to announce the
date lay with the President. This position was maintained in s.
57. Focusing on s. 11 as originally enacted, there were two
possibilities. One was that the power to appoint the date for the
general election lay only with the Commission in terms of
Articles 218 and 219. On this view, all that Parliament could
do was to give statutory expression to the constitutional grant,
and therefore any statute (here the 1976 Act) was limited only
to conferring the power on the Commission. No other authority
could be identified as the repository of the power. The second
view was that since the Constitution was silent as to which
authority could be empowered to appoint the date for the
holding of the general election, it lay within the legislative
competence of Parliament to identify the same and, by statute,
SMC.1 of 2023, etc. 24

make it the repository of the power. It is important to keep in

mind that even here the power itself sounded on the
constitutional plane. It was simply that Parliament had more
leeway in identifying the specific authority that was to exercise
it. On this view, when Parliament first acted it chose to identify
the Commission as the repository of the power, which was then
shifted to the President by successive statutory alterations to s.
11. That position was maintained when Parliament enacted
fresh legislation on the subject, i.e., the 2017 Act.

30. It will be seen from the foregoing that if the first view is
correct, then the subsequent amendments to s. 11, and also s.
57, would to this extent be ultra vires the Constitution. If the
constitutional power lay within the folds of Articles 218 and
219 then Parliament’s hands would be tied, in particular by the
last part of Article 222. Its legislative competence could not
move beyond the constitutional limit. All it could do when
making a statute would be to identify (as it would have to) the
Commission (and it alone) as the repository of the power to
appoint the date. Both s. 11, as substituted/ amended, and s.
57 would necessarily fail to this extent. In our view, this
approach cannot be accepted. No one suggested before us, in
our view correctly, that either s. 11 in its subsequent
manifestation or s. 57 were ultra vires the Constitution. We are
clear that it is the second view that is correct. Parliament has
competence under entry No. 41 of the Federal Legislative List
in relation, inter alia, to “Elections … to the National Assembly
… and the Provincial Assemblies…”. It is a well settled rule of
constitutional law that legislative entries are fields of legislative
power which are to be interpreted and applied in the widest
possible terms. In and of itself this legislative competence
would therefore be quite sufficient to confer power on
Parliament to identify by statute the authority that is to
appoint the date whether that be the Commission or the
President. However, entry No. 41 cannot be read in isolation.
The breadth of this constitutional grant must be tempered
with, and balanced against, the command of Article 222. There,
after identifying the sort of laws that Parliament is competent
to enact in relation to elections, it is expressly provided that
SMC.1 of 2023, etc. 25

“no such law shall have the effect of taking away or abridging
any of the powers of the Commissioner or the Election
Commission under this Part”. In our view, this requirement
can, at most, be regarded as imposing some limitation on
Parliament’s legislative competence to identify the authority
that is to be the repository of the power to appoint the date.
However, it cannot and does not nullify it altogether. Put
differently, it may be that there is some outer limit to the
Parliament’s power to identify the authority. However, that
limit is certainly not reached, let alone breached, when the
President is identified to be the said authority.

31. It follows from the foregoing that in those situations of

dissolution where the Constitution is silent as to which is the
authority for appointing the date for the general election, it is
Parliament’s identification that must prevail and be applied.
Those are the situations identified in para 10(b) of the short
order. Therefore, in the case of the Punjab Assembly the power
to appoint the date for the general election lay with the
President in terms of s. 57(1) and not the Governor. It follows
that the Commission fell into error when it sought, and
continued to seek, the date for the general election from the
Governor of Punjab, and the latter was correct in refusing to
give such date. Furthermore, the refusal of the Commission to
consult with the President was also legally incorrect. In
particular, its refusal to do so by means of its letter of
19.02.2023 when called upon by the President with express
reference to s. 57(1) was an error that is only excusable (and
was excused in the short error) on account of the lack of legal
clarity. It also follows that the order of 20.02.2023 made by the
President appointing the date for the Punjab Assembly was
correct and well within his power and constitutional
responsibility.

32. The next question that must be addressed in this context

is whether the President, in exercising his power under s.
57(1), can act on his own or is bound to act on the advice of
the Prime Minister? Had the grant of power being entirely
statutory in nature then the answer may well have been that
SMC.1 of 2023, etc. 26

the President would be bound to act on advice. However, as

has been seen, s. 57(1) merely identifies the authority that is to
exercise the power, the locus of which remains on the
constitutional plane. Thus, the President is discharging a
constitutional obligation and responsibility. Having considered
the point, we are of the view that the President, in appointing
the date for the general election under s. 57(1), does not act on
advice but rather on his own. In order to understand why this
is so, we begin by looking at Article 48. Clause (1) provides that
the President, in exercise of his functions, is to act on and in
accordance with the advice of the Cabinet or the Prime
Minister, as the case may be. The proviso to this clause allows
for the President to require reconsideration of any advice
tendered within fifteen days thereof and goes on to provide that
when the advice is tendered again, he is to act on it within ten
days thereof. Thus, if the proviso is applicable to a given
situation, it could be up to almost a month before the advice is
acted upon. Clause (2) of Article 48 provides that
notwithstanding anything contained in clause (1) the President
shall act in his discretion in respect of any matter “in respect of
which he is empowered by the Constitution to do so”. These
provisions have now to be examined in the specific context of
appointing the date for a general election.

33. It is to be noted that the application of Article 48(2) is not

necessarily limited only to those constitutional provisions
where the word “discretion” is expressly used. There are
provisions where the term is not used and yet the application
thereof, on any sensible approach, is meaningful only if the
President is to act on his own and not on advice. For example,
consider Article 91(7). The term “discretion” is not used
therein. It empowers the President to ask the Prime Minister to
take a vote of confidence from the National Assembly. But the
power can only be exercised if the President is satisfied that the
“Prime Minister does not command the confidence of the
majority of the members of the National Assembly”. Is the
President to act on advice here? A moment’s reflection will
show that that cannot be so. No Prime Minister (who can in
any case take a vote of confidence from the Assembly at any
SMC.1 of 2023, etc. 27

time) would sensibly advice the President to take recourse to

Article 91(7). To require that this provision can only be invoked
on advice would be reduce it to a dead letter. This is therefore a
provision where, even though the term “discretion” is not used,
the President is empowered to act on his own. Another example
in this regard is Article 75(1) which allows the President to
return a Bill (other than a Money Bill) to Parliament for
reconsideration. Again, the term “discretion” is not used here.
Now, it is an important constitutional convention that the
Government of the day must at all times command the
confidence of the majority of the National Assembly.
Realistically therefore, a Bill can hardly pass the Houses of
Parliament without the approval of the Government. If the
power under Article 75(1) is conditional upon advice, then it
could (or would) hardly ever be invoked. It would, for all
practical purposes, be a dead letter. It makes sense only if it
empowers the President to act on his own even though the
term “discretion” is not used.

34. In our view, the discharge of the constitutional obligation

and responsibility to appoint the date for a general election is
another example in line with those given above. The primary
reason for this is what has been noted above: the need,
because of the time limits imposed by the Constitution, for the
date to be appointed very swiftly if not immediately. The
tightness of the time limits, especially where the Assembly is
dissolved on the completion of its term, has been highlighted.
There is, to put it shortly, hardly any room for delay or slippage
of the timeframe. This constitutional imperative could be
directly jeopardized if, in appointing the date, the President
were bound to act on advice. The reason for this stems from
the proviso to Article 48(1). What if the Prime Minister advices
one date, but the President is of the view that another date is
preferable? As noted above, the proviso allows the President to
send back any advice tendered within a period that, especially
in the present context, can only be regarded as generous. Once
the advice is tendered again, it may finally be acted upon after
about 25 days. This period is almost half of the 60 day period
that applies in one of the situations of dissolution.
SMC.1 of 2023, etc. 28

Furthermore, given that the Election Programme stretches over

a 50 day plus period, if the proviso to Article 48(1) is invoked
that may well make it impossible to hold the general election
within the constitutional timeframe. The same would apply,
even if not as acutely, to those situations where the general
election is to be held within 90 days. We pause here to note
that the differences between the President and Prime Minister
as to the date would be genuine and the differing views in this
regard be held in good faith. The effect however could be
disastrous from the perspective of adhering to the
constitutional time limits.

35. It must also be kept in mind that as soon as an

Assembly is dissolved the process of appointing a caretaker
cabinet starts off. That has its own deadlines and strict
timeframe, as set out in Articles 224 and 224A (about eight
days). It could therefore easily be the situation that the advice
for the date of the general election is given by the outgoing
Prime Minister and if it is sent for reconsideration a caretaker
Prime Minister is in place. This could result in considerable
confusion. For example, would the process for tendering advice
then have to restart?

36. Yet another aspect of the matter is that in terms of s.

57(1) the President is empowered to appoint the date also for
the general election to a Provincial Assembly. Quite obviously,
the Chief Minister of said Assembly, whether the outgoing one
or the incoming caretaker, cannot advice the President in
constitutional terms: that is reserved only for the Prime
Minister (or Federal Cabinet). If the President is to act on
advice, then that would mean that the Prime Minister would, in
effect, appoint the date for a Provincial Assembly. This would
go against the grain of the federal structure of the Constitution.
On the other hand, if the President is empowered to act on his
own, there would be uniformity both in relation to federal
elections (i.e., to the National Assembly) and provincial
elections. This view is bolstered by Article 41, which expressly
states that not only is the President the Head of State he also
represents the unity of the Republic. Finally, as noted above,
SMC.1 of 2023, etc. 29

the statutory identification of the authority by Parliament can

result in that authority even being the Commission which, on
any view, does not, at least constitutionally speaking, act on
the instructions of the Prime Minister. Indeed, quite the
opposite: the Commission can call all executive authorities in
the country to provide suitable aid and assistance under Article
220. It would therefore be somewhat anomalous if the
identified repository of the power in one case is to act on advice
and in another is free from any such requirement.

37. When all of the foregoing points are taken into

consideration, we are of the view that the President, in
exercising the power conferred by s. 57(1) and thereby
discharging a constitutional obligation and responsibility is
empowered to act on his own and is not bound by advice in the
constitutional sense. We were informed during the hearing that
in relation to the general elections of 2018 (and also, possibly,
2013) the President was sent advice by the Prime Minister and
acted on it. If so, on its proper understanding that can only be
regarded as information provided to the President and not
advice in the constitutional sense.

38. It will be convenient to address here also the distinction

sought to be made by the learned Attorney General between
“announcing” the date for the general election, and fixing or
appointing said date. With respect, in our view that is a
distinction without any merit. The President is not a mere
mouthpiece for anyone else. He is acting on his own, and
discharging a constitutional responsibility. The
“announcement” is not a mere formality but a substantive act.
In the context of the general elections required by the
Constitution, it must have, and be given, real meaning, content
and effect. In our view, it can mean nothing less than the
appointment of the date for the general election.

39. What of the KPK Assembly? It will be recalled the some of

the learned counsel submitted that Article 105(3) was limited
to that one situation where the Governor dissolved the
Assembly in his discretion, i.e., Article 112(2). On this view,
SMC.1 of 2023, etc. 30

even though the KPK Assembly was dissolved by the Governor

acting on the advice of the Chief Minister, the power to appoint
the date for the general election would lie with the President
under s. 57(1). Is this correct? Having considered the point, in
our view the answer must be in the negative. Here, Article 105
needs to be considered. As presently relevant it is in the
following terms:

“105. Governor to act on advice, etc.-- (1)Subject to the

Constitution, in the performance of his functions, the
Governor shall act on and in accordance with the advice
of the Cabinet, or the Chief Minister…

(3) Where the Governor dissolves the Provincial Assembly,

notwithstanding anything contained in clause (1), he
shall,-

(a) appoint a date, not later than ninety days from

the date of dissolution, for the holding of a general
election to the Assembly….

(5) The provisions of clause (2) of Article 48 shall have

effect in relation to a Governor as if reference therein to
"President" were reference to "Governor".”

Article 48(2) provides as follows:

“Notwithstanding anything contained in clause (1), the
President shall act in his discretion in respect of any
matter in respect of which he is empowered by the
Constitution to do so….”

A combined reading of clauses (1) and (5) of Article 105

indicates that the Governor is bound to act on the advice of the
Chief Minister or the Provincial Cabinet but that he can act in
his discretion in respect of any matter where he is empowered by
the Constitution to do so. This is the general position. We are of
course concerned with clause (3). It does not as such use the
term “in his discretion” as is, e.g., to be found in Article 112(2).
However, substantially the same result is achieved by the
inclusion of the non-obstante clause therein (“notwithstanding
anything contained in clause (1)”), for if clause (1) is excluded
what is left but for the Governor to act on his own? The situation
to which clause (3) applies is where the Governor dissolves the
Assembly. Those situations are provided for in clauses (1) and
(2) of Article 112. Both use exactly the same phrase, “dissolve
SMC.1 of 2023, etc. 31

the Provincial Assembly”, which of course precisely matches the

words used in Article 105(3). In our view, that is sufficient to
indicate that the last mentioned provision applies to both
clauses of Article 112. These are the situations covered by para
10(a) of the short order. Therefore, in the present situation,
where the Governor did dissolve the KPK Assembly on the Chief
Minister’s advice he was under a constitutional obligation to give
the date for the general election. Here, the Commission was
correct in pursuing the Governor for the date, and continuing to
do so despite his refusal to act. The failure of the Governor was
therefore a breach of constitutional responsibility, and it was so
held and declared in the short order. Furthermore, the President
was in error when he made the order dated 20.02.2023 giving
the date for the general election to the KPK Assembly. His
subsequent instructions to learned counsel appearing on his
behalf, noted above, to withdraw from this position must be
acknowledged.

40. Before proceeding further one point must also be

addressed. During the course of the case it became clear that
the delay in appointing the date, caused by the lack of clarity
on who had the authority in the case of the Punjab Assembly
and a breach of constitutional obligation in the case of the KPK
Assembly, had already taken a considerable portion (around
half) from the 90 day time-limit set by the Constitution. Section
57(2) of the 2017 Act allows for an Election Programme spread
over a fifty day plus period. It became clear therefore that it
would be exceedingly difficult, if not practically impossible, in
the facts and circumstances as prevailing to keep within the
constitutional timeframe. Therefore, though with considerable
reluctance, the Court felt impelled to allow for a certain margin
(constituting the barest minimum deviation) in this regard.
This is the aspect covered by para 14 of the short order. It is to
be emphasized that, as expressly stated in the opening words
of the said para, the declarations and directions made therein
were only “in relation to the matters before the Court”, i.e., only
for the position presented at the time of the hearing and
decision of these matters in relation to the present dissolution
of the two Assemblies, and not otherwise.
SMC.1 of 2023, etc. 32

41. The foregoing analysis and discussion deal with the first
two of the questions noted in para 3 of the short order. We turn
to the third. Although the question is in a certain sense
ancillary to the first two, it is no less important for that. As
soon as a Provincial Assembly stands dissolved the obligations
of the Federation, under Article 148(3), come into play. And as
soon as the caretaker Chief Minister is appointed and the
caretaker cabinet seated its obligations, laid out both in the
case law and the 2017 Act, become operative. These obligations
and responsibilities necessarily interact with the whole of the
electoral process including the very first step of appointing the
date for the general election. The matter has been set out in
para 15 of the short order, which does not require further
elaboration, at least for present purposes.

42. We now turn to the objection of maintainability taken by

some of the learned counsel, including the learned Attorney
General. This was for the reason that petitions/appeals were
pending in the Lahore High Court and the Peshawar High
Court involving question(s) that were substantially the same. It
was submitted that in fact, as noted above, a learned Single
Judge of the Lahore High Court had already given judgment in
this regard, and an appeal was pending before a learned
Division Bench of that Court in ICA. In such circumstances, it
was submitted that this Court should stay its hand and allow
the High Courts to proceed with the matters. It was
emphasized that the jurisdiction of the Court under Article
184(3) was co-extensive or concurrent with that of the High
Courts under Article 199 for the enforcement of fundamental
rights. Propriety required, and it would be in the fitness of
things, for these matters not to be proceeded with. In this
sense they were not maintainable. Reliance was placed on
Manzoor Elahi v Federation of Pakistan and others PLD 1975
SC 66 and Benazir Bhutto v Federation of Pakistan and others
PLD 1988 SC 416.

43. Having considered the point, we were, with respect, not

persuaded that the matters were not maintainable and that
SMC.1 of 2023, etc. 33

this Court ought to stay its hand. As has been noted above, the
matter of holding a general election to an Assembly is
constitutionally time bound and moves within a narrow locus
in this regard. The holding of the general election is subject to
strict temporal constraints. The record of the proceedings of
the High Courts was placed before the Court. It became clear
that while the learned Single Judge in the Lahore High Court
had acted with admirable promptitude the same could not,
unfortunately and with all due respect, be said of the learned
Division Bench nor of the Peshawar High Court. Dates of
hearing were being given repeatedly and matters were
proceeding at what, in the present context, can only be
described as a rather relaxed pace. Several weeks had already
elapsed. Furthermore, it was almost certain that whatever be
the decisions in the High Courts they would be appealed to this
Court. So, the matter would essentially be back where it
already was, the only difference being that out of the
constitutional time limit several more days (at the very least) if
not weeks would be consumed. Furthermore, the possibility of
a difference of opinion between the two High Courts could not
be ruled out, with further attendant confusion and delay. All of
these factors satisfied us that these were fit matters to be
proceeded with here directly under Article 184(3)
notwithstanding the proceedings pending in the High Court.
For this Court to hold its hand and allow for the routine
litigation process to play out would, in the facts and
circumstances before us, detract from rather than serve the
public interest.

44. We now turn to consider the two decisions relied upon

and begin with Manzoor Elahi v Federation of Pakistan and
others PLD 1975 SC 66. Briefly stated the facts were as follows.
The petitioner’s brother, Ch. Zahoor Elahi, who was one of the
prominent Opposition leaders in those times, was arrested and
detained for offences allegedly committed in the erstwhile
Tribal Areas of Balochistan. The detenue was arrested in
Lahore and taken to the Tribal Areas by a circuitous route, to
remove him beyond the jurisdiction of the Superior Courts. A
writ petition was filed in the High Court of Sindh and
SMC.1 of 2023, etc. 34

Balochistan (the two Provinces then had a common High

Court: see Article 192) for the quashing of the proceedings and
also his production before the Court. A preliminary objection as
to maintainability was taken (on the ground that the
jurisdiction of the High Court did not extend to the Tribal Areas
where the detenue was being held) but repelled. The Provincial
Government appealed to this Court against that preliminary
finding, the petition before the High Court still pending. At the
same time a petition under Article 184(3) was also filed by the
petitioner seeking the release of his brother. These were among
the three matters decided by the cited case (the other not being
relevant). As to the petition under Article 184(3), an objection
was taken that it was not maintainable on account of the writ
petition pending before the High Court. In the event, this Court
granted interim bail to the detenue pending decision of the writ
petition in the High Court. Other than that, it was held that
“no order is passed on Constitutional Petition No. 61-P of 1973,
since the Constitutional Petition under Article 199 of the
Constitution being No. 1143 of 1973 is still pending
adjudication on the merits in the High Court.” (pg. 159)

45. We begin by making some preliminary observations.

Firstly, the Bench comprised of four members, each of whom
gave his own judgment. We of course sit as a five member
Bench. Secondly, it appears that the petition under Article
184(3) was the first of its kind before the Court under the
present Constitution: see the judgments of the learned Chief
Justice (Hamoodur Rahman, CJ) at pg. 79 and of Anwarul Haq,
J at pg. 131. The jurisprudence as regards Article 184(3) was
thus quite literally in its infancy. In the half-century that has
since passed, things have of course changed enormously. The
jurisprudence has matured, developed and deepened and the
Court has developed an altogether more muscular approach in
its understanding and application of Article 184(3). There has
been a sea change in how the Court views this constitutional
power. Thus, e.g., the observation of the learned Chief Justice,
that “[t]his is an extraordinary power which should be used
with circumspection” (pg. 79) is, with respect, hardly reflective
of present times. Time does not stand still and nor does the
SMC.1 of 2023, etc. 35

jurisprudence of the Court. In the common law tradition, the

law is connected to the past but not shackled by it.

46. Insofar as the precise point for which the case was cited,
determining the ratio decidendi on this aspect requires
consideration of all four judgments. For present purposes the
following suffices. The learned Chief Justice expressed his
complete agreement with the “elaborate reasons” given by
Anwarul Haq, J “for not passing any order” on the petition
under Article 184(3) (pg. 79). We turn therefore to the judgment
of the latter. His Lordship held as follows (pp. 157-159;
emphasis supplied):

“It was submitted by the learned Attorney-General, as well

as the Advocates-General of Punjab and Baluchistan that
we should not pass any operative order in this case for the
reason that the constitution petition moved by Malik
Ghulam Jillani of the Tahrik-e-Istiqlal, on these very facts,
was still pending final adjudication before the High Court
of Sind & Baluchistan, which had so far only decided the
preliminary question of its territorial jurisdiction in the
matter. The learned counsel submitted that the petition
filed in this Court as well as one pending in the High Court,
have raised several disputed questions of fact, which could
not be determined without an elaborate enquiry and
recording of evidence. They suggested that we may not
wish to undertake this exercise in the present proceedings
under Article 184 (3) of the Constitution.

I am inclined to agree with these submissions. While

undoubtedly the petition filed in this Court involves
questions of public importance with reference to the
enforcement of certain fundamental rights guaranteed by
the Constitution, it is at the same time clear that the
petition pending before the High Court of Sind &
Baluchistan also proceeds on identical facts. That High
Court has already decided the preliminary question of
jurisdiction in favour of the prisoner, and would have
proceeded to examine the allegations of mala fides,
fabrication of documents and falsification of records etc., if
the matter had not been brought to this Court by both sides.

My conclusions may now be summed up. The original

petition on behalf of the prisoner under Article 184 (3) of
the Constitution does involve several questions of public
importance with reference to the enforcement of
fundamental rights as embodied in Article 9 and 10(2) of
the Constitution….
…

As the Constitution petition filed by Malik Ghulam Jillani

of the Tehrik-e-Istiqlal on identical facts, is still pending
final adjudication before the High Court of Sind &
SMC.1 of 2023, etc. 36

Baluchistan, I would not pass any operative order in the

original petition before this Court, but leave the matter to
be finally decided by the High Court in the light of the
observations made in this judgment regarding the various
legal and constitutional questions arising in the case. I
would dispose of the petition in these terms.”

Muhammad Yaqub Ali, J dealt with the matter rather

sparingly. In not making any order on the petition under Article
184(3) his Lordship was persuaded by the fact that the
allegations of mala fides were the same as those made in the
petition before the High Court, which could deal with them (see
at pg. 85 and pp. 95-6). Salahuddin Ahmed, J dealt with the
matter essentially in passing.

47. As is clear from the foregoing, there was no question that

the issues raised brought the matter firmly within the ambit of
Article 184(3). What persuaded the Court to stay its hand was
that there were, in addition to the constitutional and legal
questions involved, also disputed questions of fact including
those mentioned in the portions emphasized above. In the
present matters, there are no such issues or questions. None of
the learned counsel disputed any of the facts and the entire
record was read several times without any objection of a factual
nature being taken in relation thereto. The whole case has
turned entirely on matters of law and high constitutional
importance. The cited case is therefore clearly distinguishable.
It has, with respect, no application to the matters at hand.
Indeed, in our view, if regard be had to the modern
jurisprudence and current understanding of the Court even the
points that were then found persuasive for the Court staying
its hand would not perhaps prevail today. Thus, e.g., in making
the observations that he did, Anwarul Haq J was clearly
proceeding within the traditional adversarial framework.
However, it is now well settled that proceedings under Article
184(3) are also to be regarded as inquisitorial where, if so
warranted, the Court may itself examine disputed factual
questions and issues as well. It is also to be noted that in a
practical sense substantial relief was in fact granted by the
Court, inasmuch as the detenue was directed to be released on
interim bail. It did not, perhaps, then matter greatly to the
SMC.1 of 2023, etc. 37

respective petitioners before this Court and the High Court

whether the constitutional and legal questions raised were in
fact finally answered or not. The position here is of course
starkly different. Unless the constitutional and legal issues are
resolved there can inter alia be no resolution of, or relief for,
the violation of the fundamental rights of the electorate. In our
view therefore, and with respect, the cited case does not lend
support to the objection of maintainability.

48. We turn to consider the other case, Benazir Bhutto v

Federation of Pakistan and others PLD 1988 SC 416. The
petition under Article 184(3) raised important questions
relating primarily to the fundamental right enshrined in Article
17(2). As presently relevant, the objection as to maintainability
was that writ petitions involving the same issues were pending
in the High Courts, two being before the Lahore High Court
and one before the High Court of Sindh (pg. 493). The learned
Attorney General focused attention, in particular, on one of the
petitions filed before the Lahore High Court as that had been
filed by the political party of which the petitioner was the
leader. This Court noted and expressed its regret at the rather
lethargic pace of the proceedings in the High Court (pp. 494-
495). The Manzoor Elahi case (among others) was cited in
support of the objection as to maintainability but the case law
was distinguished. In relation to the case just mentioned, it
was observed as follows: “As to the choice of forum of the
Court, it is no doubt correct that ordinarily the forum of the
Court in the lower hierarchy should be invoked but that
principle is not inviolable and genuine exceptions can exist to
take it out from that practice such as in the present case where
there was a denial of justice as a result of the proceedings
being dilatory” (pg. 496). It was also held as follows (ibid):

“There is another way of looking at this problem if it only

be the choice of forum without there being anything
further. The practice, which has the status of a rule of
law, is merely regulatory to control the exercise of
discretion in regard to the exercise of judicial power. And,
therefore, like a precedent under Article 189 of the
Constitution, the principle of stare decisis is also not
rigidly applicable to the practice in constitutional
interpretation if it leads to or is likely to lead to injustice.”
SMC.1 of 2023, etc. 38

Finally, it was observed: “… the salutary practice of long

standing as applied to the particular facts and circumstances
of Ch. Manzoor Elahi’s case cannot be invoked with any force
to stultify the hearing of this petition” (p. 497). In our view, the
main reason why the Manzoor Elahi case was distinguished
was because of the long time that the petition in the High
Court had been pending (which was in excess of a year and a
half), and the slow pace of those proceedings. In other words, it
was a question of time. That, in our view, has to be placed in
its proper context. Here also it is a question of time. But the
timeframe in the matters before us is much narrower and
sharply constrained. Each day counts. Within the context of
the present matters even a delay of a few days, what to speak
of a few weeks, is unacceptable. And yet, as noted above, that
is regrettably what has happened in the proceedings before the
Lahore and Peshawar High Courts. The learned Single Judge
showed a commendable and lively awareness of the importance
of time. Unfortunately, the same cannot be said of the other
Benches. To insist on these matters being, in effect, returned to
the High Courts would be tantamount in the present
circumstances to a denial of justice of a matter of high
constitutional importance, involving the fundamental rights of
the electorate at large and relatable to one of the salient
features of the Constitution. Therefore, for essentially the same
reason, in principle, why the objection of maintainability was
not accommodated in the Benazir Bhutto case, we also declined
to accept the objection for the matters at hand.

49. This finally brings us to one point that also, regrettably,

has to be addressed. That point, which we take up with
reluctance, is one aspect of the minority opinion. Ordinarily, in
line with the practice of this Court we would not comment at
all on anything said in dissent. However, we believe we should
do so on account of what (with great respect) can only be
described as an unusual view adopted by the minority: that
rather than these matters being disposed of in terms of the
short order set out herein above by 3:2, they have been
dismissed by 4:3. Reference in this regard may be made to
paras 35 and 36 of the minority opinion, the section titled
SMC.1 of 2023, etc. 39

“Decision by 4-3 or 3-2 majority”. Since the minority opinion

has purported to reverse the very outcome of these matters it is
something that should be examined. In doing so, we preface
what is about to be said by stating that we act with the greatest
respect, and a heavy heart.

50. For convenience, we set out below the relevant portion of

what the minority opinion claims (italics in original;
underlining added):

“We believed that our decision concurring with the

decision of our learned brothers (Yahya Afridi and Athar
Minallah, JJ.) in dismissing the present suo motu
proceedings and the connected constitution petitions, had
become the Order of the Court by a majority of 4-3 while
our other three learned brothers held the view that their
order was the Order of the Court by a majority of 3-2.
Because of this difference of opinion, the Order of the
Court, which is ordinarily formulated by the head of the
Bench could not be issued. We are of the considered view
that our decision concurring with the decision of our
learned brothers (Yahya Afridi and Athar Minallah, JJ.) in
dismissing the present suo motu proceedings and the
connected constitution petitions is the Order of the Court
with a majority of 4 to 3, binding upon all the concerned.”
(para 35)

The genesis of the above view appears to lie in the third

footnote of the short order dated 01.03.2023 made by our two
learned colleagues in dissent. That footnote appeared in para 2
of their short order. The said para and the footnote are set out
below (original italicized; the asterisk marks the footnote):

“2. We, therefore, agree with the orders dated 23.02.2023

passed by our learned brothers, Yahya Afridi and Athar
Minallah, JJ[*]., and dismiss the present constitution
petitions and drop the suo motu proceedings.”

“[*] Initially a nine member bench heard this matter. The

aforementioned two Hon’ble Judges decided the matter by
dismissing the said petitions. Later on two other Hon’ble
Judges disassociated themselves from the Bench for
personal reasons and as the two aforementioned judges
had dismissed the matter, the Bench was reconstituted
into a five member bench vide order dated 27.02.2023.
The decisions of the aforementioned two Hon’ble Judges
dated 23.2.2023 form part of the record of this case.”

51. With very great respect, we draw attention to a

fundamental point: that causes, appeals and matters in this
SMC.1 of 2023, etc. 40

Court are heard by Benches, and not Judges. At first sight

some may find this formulation a bit surprising since Benches
are, after all, comprised of Judges. However, the distinction is
real and substantial. A Bench is a body of Judges validly and
properly constituted as such; it is not simply an aggregate of a
given number of Judges. It is well settled that (as recently
affirmed by a five member Bench in In re: Suo Moto Case No. 4
of 2021 PLD 2022 SC 306) Benches are constituted by the
Chief Justice alone, who is the master of the roster. Benches
cannot self-constitute, and once properly constituted cannot
self-propagate or self-perpetuate (see para 33 thereof). It is the
Bench, as properly constituted, that defines and delineates the
Court for the purpose of any matter, appeal or cause and
judgment therein, and not simply any agglomeration of Judges.

52. One obvious corollary of the foregoing is that if a cause,

appeal or matter is not decided unanimously by a Bench but
by way of a division among the members thereof, the ratio (and
hence the outcome of the matter) is determined only by the
Bench as constituted. Putting this more concretely, if a matter
is said to be decided by the Bench “split” in the ratio A:B, A
plus B must be (and can necessarily only be) the total of the
members of the Bench as constituted, and not otherwise. Thus,
if the minority opinion were correct that these matters were
decided 4:3, it must be shown that a seven-member Bench was
properly constituted to hear the same, and that such Bench
actually did sit, hear and decide them. The fact of the matter is
of course that the matters were decided 3:2 as indicated in the
short order reproduced above because the Bench constituted
by the Hon’ble Chief Justice comprised of five members, who
sat as said Bench and heard the matters over two days and
then decided the same. We may note that at no stage over
those two days was any claim made by any person, including
any of the learned counsel who appeared before the Court nor,
indeed, by any member of the Bench that the Judges sitting
and hearing the matters were not the properly constituted
Bench, in that it had two additional members who were absent
or missing. For, had that been the case (which it emphatically
was not) then the five Judges who did sit and hear the matters
SMC.1 of 2023, etc. 41

would not have been the Bench constituted for the purpose.
They could not even have sat and heard the matters, let alone
deciding them.

53. The chronology of the proceedings in these matters has

already been set out above. As noted, a nine member Bench
was initially constituted by the Hon’ble Chief Justice as master
of the roster. The matters were placed before that Bench on
23.02.2023 and 24.02.2023. It is apparent that the minority
opinion does not dispute this, and also accepts that two of the
learned members of that Bench (being Yahya Afridi and Athar
Minallah, JJ) dismissed these matters on the very first day. The
relevant extracts to this effect from their orders have also been
reproduced above. Thereafter, the nine members of the Bench
unanimously made an order, reproduced above in para 4,
referring the matter to the Hon’ble Chief Justice “for
reconstitution of the Bench”. This order, of 27.02.2023, was
not and could not be an administrative order. It was a judicial
order, made by the nine-member Bench. The reconstitution of
the Bench by the Hon’ble Chief Justice, i.e., the constitution of
the present five-member Bench, was in response to this judicial
order. Unfortunately, it appears that this judicial order has not
been noticed in the minority opinion (see, in particular, at
paras 35-36). The judicial order constituted a decisive break—
indeed, a barrier—between the two validly constituted Benches.
On the prior side of it lay the initial, validly constituted nine-
member Bench of which alone the learned Yahya Afridi and
Athar Minallah, JJ were members. On the latter side lay the
subsequent, validly constituted five-member Bench of which,
respectfully, they were not.

54. The minority opinion appears to take exception to what

is regarded as the “removal” of Yahya Afridi and Athar
Minallah, JJ from the Bench without their consent, which as
per the opinion “is not permissible under the law and not
within the powers of the Hon’ble Chief Justice” (para 36 of the
opinion). It is stated in the said para as follows:

“The reconstitution of the Bench was simply an

administrative act to facilitate the further hearing of the
SMC.1 of 2023, etc. 42

case by the remaining five members of the Bench and

could not nullify or brush aside the judicial decisions
given by the two Hon’ble Judges in this case [i.e., Yahya
Afridi and Athar Minallah, JJ], which have to be counted
when the matter is finally concluded.”

With great respect, the foregoing extracts serve only to

highlight the point on which we, with respect, cannot agree. It is
to be noted that both Yahya Afridi and Athar Minallah, JJ were
signatories, as members of the nine-member Bench, to the
judicial order of 27.02.2023. Indeed, our two learned colleagues
now in minority were also signatories thereto, in like manner.
The failure of the minority opinion to notice this order in paras
35-36 and take it into account is therefore, and with great
respect, implausible. The reconstitution of the Bench by the
Hon’ble Chief Justice was only subsequent to, and consequent
upon, the judicial order of 27.02.2023. It was not simply a
matter of administrative convenience or facilitation of the
“remaining five members of the Bench” for “further hearing of
the case”. There was no such “further” hearing, nor any
“remaining five members”, because the earlier constituted Bench
had ceased to exist. The hearings on 27.02.2023 and
28.02.2023 were before another Bench, subsequently
constituted. Furthermore, insofar as Yahya Afridi and Athar
Minallah, JJ were concerned the unanimous request made for
the reconstitution of the Bench was in line with their orders of
dismissal on 23.02.2023. (That dismissal did not of course
result in the matters being decided since it was 7:2.) As noted
above, they had themselves accepted that their continued
“retention” on the “present bench” may be of no avail, and had
left the matter to the Hon’ble Chief Justice. The Bench to which
the learned Judges referred was of course the nine-member
Bench. The learned Judges themselves believed that they had,
on account of their orders of dismissal, nothing more to
contribute to the Bench of which they were actually members.
How then could anything said or done by them in such capacity
be “counted” or “reckoned” when determining the proceedings
before the reconstituted Bench of which they were not members?
This, with great respect, is the central conundrum that lies at
the heart of the reasoning adopted in the minority opinion.
SMC.1 of 2023, etc. 43

55. Where then did the ratio 4:3 claimed in the minority
opinion come from? With great respect, it could only have come
about by taking two learned Judges from the initial, validly
constituted nine-member Bench and all the other Judges of the
subsequent, validly constituted five-member Bench, and
melding this number into a seven-member “Bench” that was
never constituted, and which never existed in law or in fact.
Since there was never ever any such Bench, there could not,
ipso facto, be any decision in the ratio “4:3”. By focusing on the
number of Judges simpliciter and not the constitution of
Benches, the minority opinion (with great respect) has sought
to breach the barrier posed by the unanimous judicial order of
27.02.2023. That is not possible. Therefore, with great respect,
the claim that these matters stood dismissed in the self-
computed ratio “4:3” is erroneous.

56. The foregoing are the reasons for the short order of the
majority, by and in terms of which these matters were disposed
of.

Chief Justice

Judge

Judge