MUHAMMAD AMEER BHA TTI, CJ. Through this Constitutional petition the reluctance of the Governor of the Punjab to administer oath of the newly elected Chief Minister Punjab has been called-in-question.
2. As both the parties have been heard at length, therefore, this case is being treated and decided as admitted case.
3. In pursuance of direction issued by this Court on 21.04.2022, the learned Advocate General Punjab has entered appearance at 9:30 am before this Court and stated that the Governor of the Punjab has instructed him to inform this Court about his inability to administer oath, however , he failed to provide any evidence in this regard for which this Court has granted time till 11:00 am for production of the said letter to be addressed to the President of Pakistan by the Governor . At 11:00 am, the learned Advocate General informed that although the Governor has decided not to administer the oath but he has not written the letter in this regard to the President of Pakistan so far, however , he remained uncertain about the time period the Governor would consu me for writing supra mentioned letter . This Court again granted another opportunity to obtain the instructions about the time needed by the Governor for writing that letter to the President of Pakistan expressing his inability to administer oath. Accordingly , now at 2:00 pm the learned Advocate General after obtaining the instructions from the Governor informed this Court that within 24 hours the letter would be dispatched to the President expressing his inability to administer oath.
4. Since the Governor through Advocate General has categorically informed this Court regarding non-administering oath of the newly elected Chief Minister for the reason to be recorded in the letter addressed to the President of Pakistan, therefore, this Court concludes that, in such eventuality , I deem it appropriate to direct my office to transmit this order through fax to the office of the President for its placement before the President of Pakistan for exercising the power provided under Article 104 of the Constitution of Islamic Republic of Pakistan, 1973, for nomination of another person, keeping in view the peculiar circumstances, for administration of newly elected Chief Minister 's oath. It is expedient to reproduce the said Article as under:- "104. Speaker Provincial Assembly to act as, or perform functions of Governor in his absence. When the Governor , by reason of absence from Pakistan or for any other cause, is unable to perform his functions, the Speaker of the Provincial Assembly and in his absence any other person as the President may nominate shall perform the functions of Governor until the Governor returns to Pakistan or, as the case may be, resumes his functions."
It is expected from the President of Pakistan that he will resolve/decide the matte r of nomination of any person in terms of Article 104 of the Constitution keeping in view the fact that people of the Province of Punjab are already suffering on account of non functional Provincial Government for the last 21-days, which as held in Mustafa Impex' s case by the honourable Supreme Court (PLD 2016 Supreme Court 808) consists of Chief Minister and the Cabinet.
It is also hoped that the President of Pakistan will not wait for the letter of the Governor as the Governor has no authority under Article 130(5) of the Constitution , which is as follows:- "130(5). The member elected under clause (4) shall be called upon by the Governor to assume the office of Chief Minister and he shall, before entering upon the office, make before the Governor oath in the form set out in the Third Schedule:" to exercise any option except to ask the newly elected Chief Minister to assume the office by administering oath promptly . With these observations, the writ petition stands disposed of.