1. ' SAYED ZAHID HUSSAIN, C.J.---On 25th of February, 2009, Proclamation under Article 234 of the Constitution of the Islamic Republic of Pakistan, 1973 was issued to the effect:-- "Whereas I, Asif Ali Zardari, President of the Islamic Republic of Pakistan, on receipt of report from the Governor of the Punjab and other information made available, am satisfied that the situation has arisen in which the Government of the Province of the Punjab cannot be carried on in accordance with the provisions of the Constitution.
2. ' And whereas an unprecedented and unique constitutional void has been created in the Province consequent upon the decision of the Hon'ble Supreme Court of Pakistan on 25 February, 2009 in the matter of disqualification/unseating of Mian Shahbaz Sharif as Member of Provincial Assembly.
(2) Now, therefore, in exercise of the powers conferred by Article 234 of the Constitution of the Islamic Republic of Pakistan, I hereby:--
(a) direct the Governor of the Punjab to assume on my behalf the functions of the Government of that Province;
(b) make the following incidental and consequential provision which appear to be necessary or desirable for giving effect to the objects of this Proclamation:--
(i) the Chief Minister and Provincial Ministers of that Province shall forthwith cease to hold office;
(ii) in the exercise of the functions which the Governor has been directed to assume hereinbefore stated, the Governor shall act to such extent and subject to such conditions as I shall, from time to time, deem fit to give or impose.
(3) This order shall, unless revoked earlier, remain in force for a period of two months."
3. ' The basis for the said action was that an "unprecedented" and "unique constitutional void" had been created in the Province consequent upon the decision of the Hon'ble Supreme Court of Pakistan, dated 25-2-2009 in the matter of disqualification/unseating of Mian Muhammad Shahbaz Sharif as Member Provincial Assembly. The effect thereof was that the Chief Minister and Provincial Ministers of the Province ceased to hold office forthwith. The Proclamation was not assailed by the Chief Minister or the Provincial Ministers. However, Writ Petition No, 4383 of 2009 was filed by Zahid Hussain Malik, Advocate and another Writ Petition No, 4384 of 2009 by Ahmad Sher Khan Baloch, Advocate. These petitions came up before a learned Single Bench (Asif Saeed Khan Khosa, J) on 6-3-2009 and were admitted to regular hearing and the matter was referred to the Chief Justice to consider the advisability of constituting a larger Bench to hear the same.
4. Accordingly a Seven Member Bench comprising senior Hon'ble Judges available at the Principal Seat was constituted. The matter was fixed before the Bench on 25-3-2009 when at the request made by the learned counsel for the parties it was adjourned to 27-3-2009. In the meanwhile, another petition (Writ Petition No, 5538 of 2009) was filed by Rana Mashhood Ahmad Khan, the Deputy Speaker of the Punjab Assembly, which was also fixed along with the above mentioned petitions on 27-3-2009. Since Writ Petition No, 5538 of 2009 had been fixed as an urgent matter, Khawaja Haris Ahmed, the learned counsel representing the said petitioner instead of arguing the matter requested for adjournment due to taking place of certain events, particularly that the matter of disqualification of Mian Muhammad Shahbaz Sharif, the erstwhile Chief Minister, had been taken up before the Hon'ble Supreme Court of Pakistan through the review petition and that petition for suspension of the judgment had also been moved before the said Court. After hearing the learned counsel for the parties, we passed order, the operative part whereof is as follows:-- "Since the parties in the other two petitions (already pending before this Court) are represented through the learned counsel, they have been asked about their stance in the matter, Mr. A.K. Dogar, who is counsel for the petitioner in Writ Petition No,4384 of 2009, endorsed the point of view of Khawaja Haris Ahmed, Advocate and stated that notice for 30th of March, 2009 in the said matters has already been issued by the Hon'ble Supreme Court of Pakistan. Mr. M. Nasim Kashmiri, the learned Deputy Attorney General for Pakistan, also stated that he has received information from the Advocate-on-Record about fixation of the matter by the Hon'ble Supreme Court of Pakistan for 30th of this month. He also requested for adjourning this matter. Mr. Hanif Khatana, the learned Acting Advocate General, Punjab also supported the point of view of Khawaja Haris Ahmed, Advocate and others and requested for adjournment of the matter. Dr. Farooq Hassan (the learned counsel in Writ Petition No,4383 of 2009), however, was of the view that this matter should be heard on its merits, which concerns with the rights of the people and is not purely a matter inter se the political parties.
5. ' It has been made clear to all that the Court is not, in any way, going to avoid the hearing of the matter which involves the interpretation of provisions of the Constitution of the Islamic Republic of Pakistan, 1973. However, in view of the preponderant stance of the learned counsel and the learned Law Officers, we have deliberated on this aspect of the matter and are inclined to adjourn the matter till 31-3-2000. To be fixed on the said date along with the connected matter."
6. ' The matter has thus been taken up today. At the outset the learned Deputy Attorney General for Pakistan produced before us the Notification, dated 30-3-2009 i,e, Revocation of Proclamation which reads as follows:-- "No,7-3/2009-Min-I.-The following revocation of Proclamation, dated 25th February, 2009 is hereby published for general information:-- "REVOCATION OF PROCLAMATION .
7. ' Whereas the President is satisfied that the grounds on which he issued the Proclamation under Article 234 of the Constitution of the Islamic Republic of Pakistan, on the 25th February, 2009, have ceased to exist;
(2) Now, Therefore, in pursuance of clause (1) of Article 236 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to revoke the aforesaid Proclamation."
8. ' An Order of the Governor Punjab passed under Article 109 of the Constitution of the Islamic Republic of Pakistan, 1973 has also been produced which reads as follows:-- "In exercise of the powers conferred on me under Article 109 of the Constitution of the Islamic Republic of Pakistan, I, Salmaan Taseer, Governor of the Punjab, hereby summon the Provincial Assembly of the Punjab to meet on April 1, 2009 (Wednesday) at 4-00 p.m. In the Punjab Assembly Chambers Lahore for ascertainment of the member of the Provincial. Assembly as Chief Minister, who commands the confidence of the majority of the members of the Provincial Assembly, immediately thereafter, the session shall be prorogued."
9. ' The learned Deputy Attorney, General, Pakistan contends that since the Proclamation stand revoked, this petition has become infructuous, which should be dismissed accordingly. Dr.Farooq Hassan, is of the view that since constitutional issues were involved, the Court could hear and decide about the constitutionality and validity of the Proclamation. According to him if the Notification of revocation of Proclamation was to be kept in view then the petition should be disposed of as having borne fruit. It is suggested that the petition could also be disposed of by leaving the questions open for decision in an appropriate case. Mr. Tariq Aziz, advocate, learned counsel for the petitioner in Writ Petition No, 4384 of 2009 and Mr. Mustafa Ramday, Advocate, learned counsel for, the petitioner in Writ Petition No,5538 of 2009 also took somewhat similar stance. They have, however, left the matter for the Court to proceed with the hearing of the case or to dispose of the same. Syed Ali Zafar, advocate who appeared as amicus curiae contended that there was nothing to be decided now and since there was no lis pending, the petition can be disposed of either having become infructuous or as borne fruit. Mr. Shahid Karim, Advocate, the other amicus curiae was of the view that the Court may not take up academic issues. He, however, made reference to the judgment in Miss Asma Jilani v. Government of the Punjab and another (PLD 1972 SC 139) and Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lahore 725), where the Court proceeded to decide issues of constitutional importance.
10. ' We have considered the respective views of the learned counsel, the Law Officers as also of amicus curiae for the purpose only as to whether we should embark upon further hearing and decide the issues raised in the petitions.
11. The practice normally followed by this Court is that when there remains no live issue or controversy, the Court need not embark upon academic discussion and instead may dispose of the matter in the light of the changed prevailing events touching the subject-matter of the cause. There is no cavil with the proposition that the Court is entitled to take notice of the events taken place and happenings during the pendency of the matter and to proceed to dispose of the matter accordingly. It is also equally established that a futile or infructuous writ is not issued by the Court, which would be of no use. In Sumedico Corporation and another v. Regional Provident Fund Commr. (1998) 8 Supreme Court Cases 381), a petition had been filed challenging the vires of S.7-A of the Employees Provident Fund and Miscellaneous Provisions Act, 1952, on the ground that the same was ultra vires the provisions of the Constitution of India as the law did not provide remedy of appeal. While the appeals were pending before the Supreme Court of India, the law was amended by inserting section 7-D i,e, remedy of appeal. Copy of the relevant Notification was produced before the Court when it was observed that "In view of this development, therefore, the question of challenge to the vires of section 7-A on the ground that there was no appeal provided under the Act does not survive and it has become academic." The appeal was disposed of accordingly. In Martial Law Administrator, Zone 'D and others v. Muhammad Niaz (PLD 1979 SC 921), the Baluchistan High Court had taken in view that the scheduled offences as contemplated by the Pakistan Criminal Law Amendment Act, 1958 were triable exclusively by a Court of special jurisdiction (Special Judge Anti Corruption) and not by the Summary Military Court. Martial Law Administrator Zone-D had assailed that judgment before the Hon'ble Supreme Court of Pakistan and leave to appeal had been granted to examine the contentions that the propositions laid down by the High Court were not correct enunciation of the law and if given effect, will destroy the efficacy of Martial Law. During the final hearing of the appeal, the learned Deputy Attorney General, Pakistan made statement that it had been decided to try the said respondent under the ordinary law applicable to him, if it is made clear that the judgment of the Baluchistan High Court was meant only for the said individual case. The appeal was disposed of as having become infructuous with the following observations:-- "After giving consideration to the statements made before us by the learned Deputy Attorney- General for Pakistan, the Advocate-General, Baluchistan and Mr. S.M. Zafar , we have formed the opinion that in view of the decision taken by the authorities to try respondent Muhammad Niaz under the ordinary law applicable to his case, namely, the Pakistan Criminal Law Amendment Act, 1958, the present appeal has, indeed, become infructuous. In the circumstances, no useful purpose would be served by embarking upon an academic exercise to consider the propositions of law formulated in the leave granting order, except to observe that the propositions and observations made by the High Court of Baluchistan in the judgment under appeal appear to be much too wide and prima facie open to exception, and would require careful examination in a proper case. As already observed by this. Court in its interim order, dated the 17th of December, 1978, the impugned judgment should be read as confined to this individual case alone".
12. The course adopted by the Apex Court is quite instructive that pending litigation on the subject, the events having bearing on the subject matter can be taken notice of by the Court and dispose of the matter without embarking upon the academic issues of even high importance.
13. ' In the instant petitions the primary attack of the petitioners was qua the Proclamation issued on 25-2-2009, which stand revoked by a later Proclamation, dated 30-3-2009, which was followed by the Order of the Governor, Punjab of even date summoning the Provincial Assembly Punjab to meet on 1-4-2009 for ascertainment of, the Member of the Provincial Assembly as Chief Minister who commands the confidence of the Members of the Provincial Assembly. While this order was being dictated, the learned Deputy Attorney General, Pakistan appeared in the Chamber and informed that in the Review Petition, the Ho'ble Supreme Court of Pakistan, has today suspended the operation of the judgment and Mian Muhammad Shahbaz Sharif has been reinstated as Chief Minister with immediate effect. This is another event of great relevance and significance, which cannot be overlooked inasmuch as the Proclamation, dated 25-2-2009 was consequent upon the judgment of the Hon'ble Supreme Court of Pakistan, which stand suspended by the Court.
14. For all the above reasons we find that there remains no live issue to be decided by this Court in these petitions. Further hearing of the matter would merely be an academic exercise, which we are not persuaded to embark upon as no useful purpose will be served. The questions touching the vires of such a proclamation may well be considered in appropriate proceedings if and when such an occasion arises.
15. ' With the above observations/clarification this petition and the connected petitions stands disposed of We,are grateful for the assistance rendered by the learned counsel for the parties, in particular the amicus curiae Syed Ali Zafar and Shahid Karim, Advocate, who appeared on such a short notice.
16. ' No order as to costs.