' TASSADUQ HUSSAIN JILLANI, J.--- In terms of the judgment under review dated 25-2-2009 (in C.P.
905 of 2008) passed by this Court, petitioner, Mian Muhammad Shahbaz Sharif, was declared disqualified to be a Member of the Provincial Assembly and thus, ceased to hold office of the Chief Minister, Punjab. The petitioner filed Civil Review Petition No,62 of 2009 in which after preliminary hearing, notice was issued to the respondents on 30-3-2009. This Court while issuing notice to the respondents was not persuaded to allow application for interim relief as we were inclined to decide the said application along with the main petition. However, learned counsel for the petitioner, Kh.
Muhammad Haris, Advocate Supreme Court, today brought to the notice of the Court that since the Governor's Rule has been lifted in the Province of the Punjab and the Session of the Provincial Assembly has been called for tomorrow i,e, 1-4-2009, the relief sought in the main petition may become infructuous on account of the turn of events. He made particular reference to the mandate of section 2 of the Chief Executive's Order 19 of 2002 which, inter alia, provides that "a person who has, at any time, hold the office of Prime Minister or that of a Chief Minister of a Province or combination of such offices for two terms, irrespective of whether anyone of the two or both the terms of office were completed or not, shall not be qualified to hold the office of the Prime Minister or that of the Chief Minister". His precise submission was that if in forthcoming session of the Assembly, a new Chief Minister is elected, the petitioner may stand disqualified as Chief Minister on some construction of the aforementioned provision of law. This provision, he added, was granted protection by virtue of the 6th Schedule to the Constitution of Islamic Republic of Pakistan inserted by the 17th Amendment.
2. The learned Attorney-General for Pakistan, Sardar Muhammad Latif Khan Khosa, who was present in Court on Court call, when called upon to address the issue raised, in all fairness, submitted that although the amendments brought about to which reference has been made by the petitioner's learned counsel is likely to be done away with in due course in accord with the Charter of Democracy signed by the mainstream parties in the Parliament, yet as for present the provision in question could create complications for the petitioner to assume the office of the Chief Minister, if the main petition is eventually allowed.
3. Sahibzada Ahmed Raza Kasuri, learned Senior Advocate Supreme Court, appearing for respondents, opposed the prayer for interim relief on the ground that this Court is a creature of the Constitution; that in terms of the basic structure reflected in the constitutional scheme, this Court has to remain within the parameters of its defined authority; that the Session of the Provincial Assembly is scheduled during the current week and that let the Assembly decide about the new Chief Minister. He further added that this Court is ceased of a review application which has its own limitations and that he is unaware of any precedent of this Court in which the interim relief was granted in review jurisdiction.
4. Dr. Mohyuddin Qazi, learned Advocate Supreme Court, who appeared for the respondents in Civil Petition No,878 of 2008, also opposed the prayer by submitting that the petitioner by his own conduct demonstrated acquiescence inasmuch as he did not challenge the order of the High Court which was under challenge in other Civil Petitions Nos.657-L, 803, 878 and 905 of 2008 by virtue of which, the High Court had reversed the order, dated 1-6-2008 passed by the Chief Election Commissioner, declaring the petitioner to be a candidate of the constituency in question. He further submitted that the petitioner should have been aggrieved of the interpretation accorded by the High Court to section 14 subsection (5A) subsection (6) but he never challenged the said judgment before this Court. Dilating upon scope of the review jurisdiction of this Court, the learned counsel contended that this Court while considering the review petition cannot reopen the main case or sit in appeal over the judgment under review. On question of interim relief, the learned counsel submitted that the considerations which weigh with the Court, while considering prayer for Interim relief are the existence of a prima facie case, issue of balance of convenience and that of the irreparable loss which according to him, in the instant case do not tilt in favour of the petitioner.
Adverting to the petitioner's anxiety with reference to Article 2 of the Chief Executive Order 19 of 2002, the learned counsel submitted that such apprehensions should not be the concern of this Court as the Assembly would elect its leader of the House in accord with the schedule to be issued by the 'Election Commissioner in this regard. He lastly submitted that since the judgment under review has already been given effect to and the petitioner is no longer Chief Minister, no status quo ante can be granted. In support of his submissions, he relied upon the following precedent case- law:--- ' Yaqoob Khan v. The State PLD 1996 SC 97, Raja Prithvi Chand Lal Choudhury v. Sukhraj Rai and others AIR 1941 FC 1 and Ch. Mehmood Ahmed v. Haji Muhammad Idrees 2001 YLR 3237:
5. We have heard learned counsel for the parties at some length, have given anxious consideration to the submissions made and have also gone through the case-law referred during the arguments.
6. Admittedly, the Returning Officer had declared petitioner, to be qualified to contest the election from the constituency in question (No,PP-48 Bhakhar-II, order, dated 16-5-2008). The objection petition filed by Syed Khuram Shah, in terms of section 14(5A) was declared to have been dismissed by giving effect to section 14(6) of the Peoples Representation Act, 1976 by the Chief Election Commissioner of Pakistan vide order, dated 1-6-2008. In Writ Petition No,6470 of 2008 filed by Syed Khuram Shah (who was not a candidate), the learned High Court while accepting the petition had directed that the objection filed by him shall be deemed to be pending before the Tribunal to be constituted by the Election Commission of Pakistan comprising of at least three Honourable Judges of the Lahore High Court. This was vide order, dated 23-6-2008. However, by virtue of a separate order of the same day, the learned High Court decided the question of eligibility of Mian Muhammad Nawaz Sharif in the connected petition on merit and disqualified him.
This was notwithstanding the fact that against him a similar objection in terms of section 14(5A) was filed which remained undecided by the cutoff date and the Chief Election Commissioner had passed a similar order, dismissing the objection petition in terms of section 14(6) of the Peoples Representation Act, 1976. The judgment passed in the case of Mian Muhammad Nawaz Sharif is subject-matter of separate petitions. The judgment in case of Mian Muhammad Shahbaz Sharif was challenged in Civil Petitions Nos.878, 803 and 905 of 2008. Vide the judgment under review, in the instant petition, this Court while dismissing the connected civil petitions allowed Civil Petition No,905 of 2008 (filed by Khurram Shah) and reversing the order of the learned High Court declared the petitioner to be disqualified to be a Member of Provincial Assembly. In consequence whereof he ceased to be the Chief Minister of the Punjab. In issuing notice in the main review petitions, what weighed with this Court, inter alia was that the petitioner was proceeded ex parte; that although he did not appear pursuant to the notice issued, the Court may have converted the petition into appeal, should have issued fresh notices for full hearing of the same; that the interpretation accorded to subsection (6) of section 14 of the Peoples Representation Act, 1976 was not only being challenged by the petitioner but also by the Federal Government; that although the High Court despite reversing the order of the Returning Officer had allowed the petitioner to continue functioning as Chief Minister, but the judgment under review non-seated him from said office.
These elements of the judgment under review were considered sufficient by this Court to constitute prima facie case. The arguments of learned counsel for the respondents, Mr. Ahmed Raza Kasuri, qua interim relief may have been tenable if this Court was not faced with an unusual situation alluded to in the preceding para. And emergence of a new circumstance i,e, that the Governor's Rule has been lifted and the session of the Provincial Assembly scheduled for tomorrow is likely to elect a new Chief Minister which may change the complexion of this case. This Court cannot remain oblivious of the likely inconvenience and irreparable loss which may accrue to the petitioner in case of refusal of the interim relief which apprehension has not been disputed even by the learned Attorney-General for Pakistan.
7. For the afore-referred reasons, while allowing this application we direct that till the final disposal of the main petition, operation of the impugned judgment, dated 25-2-2009 under review shall remain suspended and the petitioner Mian Muhammad Shahbaz Sharif shall resume the office of the Chief Minister with immediate effect.