Chaudhary Parvez Elahi vs Deputy Speaker, Provincial Assembly of Punjab,

UMAR ATA BANDIAL, C.J.--- Surah At-Tawbah, Verse 119: "O ye who believed Fear Allah and be with those who are true (in word and deed)."

(Translation by Yusuf Ali)

This Constitution Petition No. 22 of 2022 has been filed by Mr. Chaudhary Parvez Elahi ("Petitioner"), the current Speaker of the Punjab Assembly ("PA") and the joint candidate of Pakistan Tehreek-i- Insaf ("PTI") and Pakistan Muslim League (Quaid-e Azam) ("PML-Q") for the office of Chief Minister ("CM") of Punjab. The Petitioner has impugned the ruling given by the Deputy Speaker of the. PA on 22.07.2022 discarding the 10 votes cast by the members of PML-Q in his favour in the election of CM held on the same day. The ruling has been challenged for being contrary to the express provisions of Article 63A(1)(b) of the Constitution and the short order of the Supreme Court ("the Court") passed in Presidential Reference No.1 of 2022 ("Reference 1/2022") on 17.05.2022 which is reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan (PLD 2022 SC 488). Subsequently, the detailed reasons in Reference, 1/2022 were issued by the Court and these are reported as Supreme Court Bar Association v. Federation of Pakistan (PLD 2023 SC 42).

Factual Background

2. To better understand the grievance of the Petitioner, the relevant facts underlying the controversy may first be summarised. The sequence of events leading up to the Deputy Speaker's ruling of 22.07.2022 commenced on or about 01.04.2022 when the resignation of the then CM, Mr. Usman Buzdar, was accepted by Governor, Punjab. Consequently, to elect a new CM for the Province an election under Article 130(4) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") was held in the PA on 16.04.2022. Article 130(4) provides: "130. The Cabinet.

(4) The Chief Minister shall be elected by the votes of the majority of the total membership of the Provincial Assembly: Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister: Provided further that, if the number of votes secured by two or more members securing the highest number of votes is equal, further polls shall be held between them until one of them secures a majority of votes of the members present and voting."

(emphasis supplied)

The election of 16.04.2022 was contested by the Petitioner and respondent No:2,- Mr. Muhammad Hamza Shahbaz Sharif, the candidate ("Respondent candidate") of Pakistan Muslim League- Nawaz ("PML-N"). The strength of the PA is 371, therefore, in terms of Article 130(4) of the Constitution the successful candidate in the first poll needed at least 186 votes to be elected CM, Punjab.

3. After the result of the voting held on 16.04.2022 was tallied, the Respondent candidate was declared CM, Punjab having received 197 votes. However, of these 197 votes 25 votes were cast by the members of PTI, allegedly contrary to the direction issued under Article 63A(1)(b) of the Constitution. As a result, PTI's Party Head, Mr. Imran Khan, forwarded declarations of defection under Article 63A(1) against these 25 members to the Speaker of the PA on 18.04.2022. For reference, Article 63A is produced below: "63A. Disqualification on grounds of defection, etc.

(1) If a member of a Parliamentary Party composed of a single political party in a House--

(a) resigns from membership of his political party or joins another Parliamentary Party; or

(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs, in relation to-

(i) election of the Prime Minister or the Chief Minister; or

(ii) a vote of confidence or a vote of no-confidence; or

(iii) a Money Bill or a Constitution (Amendment) Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned: Provided that before making the declaration, the Party Head shall provide such member with an opportunity to show cause as to why such declaration may not be made against him.

Explanation.-- "Party Head" means any person, by whatever name called, declared as such by the Party.

(2) A member of a House shall be deemed to be a member of a Parliamentary Party if he, having been elected as a candidate or nominee of a political party which constitutes the Parliamentary Party in the House or, having been elected otherwise than as a candidate or nominee of a political party, has become a member of such Parliamentary Party after such election by means of a declaration in writing.

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer, and in case he fails to do so it shall be deemed that he has referred, the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision thereon confirming the declaration or otherwise within thirty days of its receipt by the Chief Election Commissioner.

(4) Where the Election Commission confirms the declaration, the member referred to clause (1) shall cease to be a member of the House and his seat shall become vacant.

(5) Any party aggrieved by the decision of the Election Commission may within thirty days, prefer an appeal to the Supreme Court which shall decide the matter within ninety days from the date of the filing of the appeal.

(6) Nothing contained in this Article shall apply to the Chairman or Speaker of a House.

(7) For the purpose of this Article,--

(a) "House" means the National Assembly or the Senate in relation to the Federation; and a Provincial Assembly in relation to the Province, as the case may be;

(b) "Presiding Officer" means the Speaker of the National Assembly, the Chairman of the Senate or the Speaker of the Provincial Assembly, as the case may be.

(8) Article 63A substituted as aforesaid shall come into effect from the next general elections to be held after the commencement of the Constitution (Eighteenth Amendment) Act, 2010: Provided that till Article 63A substituted as aforesaid comes into effect the provisions of existing Article 63A shall remain operative."

(emphasis supplied)

4. On the following day i.e., 19.04.2022 the Speaker referred these declarations under Article 63A (3) to the Chief Election Commissioner for decision by the Election Commission of Pakistan ("ECP").

During the pendency of the Speaker's references before the ECP, the Court issued its decision in SCBA v. POP (supra) on 17.05.2022 wherein it observed: "3. Turning to the second question and keeping in mind the answer to the first, it is our view that the vote of any member (including a deemed member) of a Parliamentary Party in a House that is cast contrary to any direction issued by the latter-in terms of para (b) of clause (1) of Article 63A cannot be counted and must be disregarded, and this is so regardless of whether the Party Head, subsequent to such vote, proceeds to take, or refrains from taking, action that would result in a declaration of defection. The second question referred to this Court stands answered in the foregoing terms."

(emphasis supplied)

Thereafter, the ECP on 20.05.2022 announced its decision on the Speaker's references and held that the 25 members of PTI had indeed defected. Consequently, the declarations forwarded by the Party Head against the said members were confirmed and they were de-seated. The operative portion of the ECP's order reads: "34....[W]e have arrived at the conclusion that participation of the respondents in the election of Chief Minister Punjab and casting their votes in favour of the opposing candidate has established the factum of defection on the basis of the subject declarations against all the respondents. The declarations are confirmed and the respondents cease to be members of Punjab Assembly and their seats become vacant."

(emphasis supplied)

5. Subsequently, the Petitioner and certain PA Members belonging to PTI ("writ petitioners") filed writ petitions before the Lahore High Court seeking a direction that the decision of the Court in SCBA v. FOP case (supra) dated 17.05.2022 be applied to the CM election held on 16.04.2022 and a fresh election may be ordered in accordance with the Constitution. By its short order issued on 30.06.2022 the Lahore High Court unanimously accepted this contention and by a majority of 4:1 directed that the PA session for electing the CM be resumed on 01.07.2022 and the same 'shall not be prorogued till the election process is complete and the Presiding officer intimates the result of elected Chief Minister to the Governor.'

6. Dissatisfied by the short time of one day provided by the Lahore High Court for electing a new CM, the writ petitioners approached the Court with the prayer that 'the impugned order dated 30.06.2022 may be amended/modified to the extent of provision of adequate and sufficient time to hold a session of the Punjab Assembly enabling the members to participate in the proceedings.., so that they may exercise their right to vote for the election of the Chief Minister, Punjab.' Specifically, the Petitioner urged before the Court that on 01.07.2022 certain Members of the PA who supported him were out of the country to perform Hajj whilst the 25 seats that stood vacated due to the ECP's decision of 20.05.2022 had not yet been filled. From these 25 seats, 20 were general seats on which bye-elections were scheduled for 17.07.2022. The remaining 5 were reserved seats (3 for women; 2 for minorities) whose new holders had not yet been notified by the ECP. The petition was disposed of by a consent order passed by the Court on the same day i.e., 01.07.2022. Relevant passages from that order are produced below for reference: "10. Based on the unqualified consent of all parties before this Court... the following order is passed which would amend and modify and to that extent override the impugned order of the Lahore High Court dated 30.06.2022: i) The second poll for election of the Chief Minister, Punjab in terms of the proviso to Article 130(4) of the Constitution shall be held on Friday 22.07.2022 at 4:00 pm in the Punjab Assembly Building as suggested by Mr. Ellahi, the Speaker, Punjab Assembly and consented to by Mr. Sharif as well as Mr. Babar Awan, learned ASC representing the Leader of the Opposition in the Punjab Provincial Assembly... iii) The Lahore High Court shall issue its detailed reasons for the order dated 27.05.2022... which shall be implemented by ECP forthwith by issuing the notification of the names of the candidates against reserved seats in accordance with the directions issued by the Lahore High Court... iv) Bye-election (due to be held on 17.07.2022) against the seats which had become vacant on account of defection of members of PTI shall be held in a free, fair and transparent manner..."

(emphasis supplied)

By 22.07.2022 the result of the bye-elections of 17.07.2022 had been notified and the list of new appointees to the reserved seats had been issued.

7. As per the Court's direction in its order dated 01.07.2022, the PA's session for electing the new CM in terms of the first proviso to Article 130(4) was held on 22.07.2022. This proviso reads: "130. The Cabinet.

Provided that, if no member secures such majority in the first poll, a second poll shall be held between the members who secure the two highest numbers of votes in the first poll and the member who secures a majority of votes of the members present and voting shall be declared to have been elected as Chief Minister:"

(emphasis supplied)

In the second poll a successful candidate merely requires a majority of the votes of the Members present and voting to be elected CM. The picture that emerged from the final 'count on 22.07.2022 was that the Petitioner had secured 186 votes (176 votes from PTI and 10 votes from PML-Q) whereas the Respondent candidate had obtained 179 votes. However, at this stage- the Deputy Speaker, who was presiding the session of the PA, pulled out a paper from his pocket and informed the Members that 'I just received a letter from Ch. Shujaat [Hussain],^[1]. He then continued that Mr. Ch. Shujaat Hussain has stated in the letter that being the Party Head of PML-Q he has issued a direction to his party members to vote for the Respondent candidate in the CM election. As a direct result of this letter, the Deputy Speaker rejected the 10 votes cast by the members of PML-Q in favour of the Petitioner. This reduced the votes of the Petitioner to 176 which were 3 short of the total votes received by the Respondent candidate i.e.,

179. Consequently, the Deputy Speaker declared the Respondent candidate the returned candidate to the office of CM. The ruling of the Deputy Speaker given on 22.07.2022, which is available on the record, is as follows: Directions to the Members of the Provincial Assembly of the Punjab belonging to Pakistan Muslim League.

Dear Sir: Election for the Office of Chief Minister Punjab, scheduled to be held on July 22, 2022. As Party Head of Pakistan Muslim League, I have issued directions to all my Provincial Members named herein below to cast their votes in favour of Muhammad Hamza Shahbaz Sharif viz letter and copies of the same enclosed herewith for ready reference and as proof of directions issued by me as stated] herein above: Hafiz Ammar Yasir, MPA/PP-24 (PML) Shujahat Nawaz, MPA/PP-28 (PML)

Mr. Muhammad Abdullah Warraich, MPA/PP-29 (PML)

Mr. Parvez Elahi, MPA/PP-30 (PML)

Mr. Muhammad Rizwan, MPA/PP-4:1 (PML)

Mr Sajid Ahmed Khan, MPA/PP-67 (PML)

Mr. Ehsan Ullah Haque, MPA/PP-249 (PML)

Mr. Muhammad Afzal, MPA/PP-250 (PML)

Ms. Baasma Ch., MPA/W-361 (PML)

For the detailed reasons to follow in terms of order of Hon'ble Supreme Court dated 17-05- 2022 passed in Presidential Reference No.1 of 2022 and C.Ps. No.2/2022 and 9/2022 and consequent to the directions issued to the members of the Pakistan Muslim League and received by me from the Head of Pakistan Muslim League, I hereby disregard and exclude the votes of Pakistan Muslim League in fovour of Ch. Parvez Elahi. As [a] consequence Mr Hamza Shehbaz Sharif is declared as the return[ed] candidate for Office of Chief Minister having received majority votes of Members present [and] voting in terms of 1st Proviso of Clause (4) of Article 130 of the Constitution and proviso of sub-rule (3) of Rule 20 of the Rules of Procedure of the Provincial Assembly of Punjab, 1997."

8. Feeling aggrieved by the' ruling of the Deputy Speaker, the Petitioner filed the present Constitution Petition under Article 184(3) of the Constitution on the same day i.e., 22.07.2022 praying, inter alia, for the following reliefs: i. The Deputy Speaker's action of discarding the 10 votes of PML-Q under Article 63A of the Constitution be declared violative of the said Article; ii. The ruling of the Deputy Speaker stating that the Respondent candidate is the returned candidate to the office of CM, Punjab be declared unconstitutional and void; and iii. The Petitioner be declared the lawfully elected candidate to the office of CM, Punjab.

It is appropriate to note at this juncture that as per the contents of C.M.A. No.5202/2022, filed by learned counsel for Mr. Ch. Shujaat Hussain and PML-Q, the direction of Mr. Ch. Shujaat Hussain was issued to the members of PML-Q on 21.07.2022. and a letter to this effect was also sent to the Deputy Speaker on the same date Copies of the direction issued by the Parliamentary Leader of PML-Q in the PA on 21.07.2022 to the members of PML-Q are attached in the main paper book of the present Constitution Petition. This direction mandates the members of PML-Q to vote for the Petitioner in the CM election to be held on 22.07.2022. It also refers to a meeting of PML-Q's Parliamentary Party held on 21.07.2022 wherein all 10 members of PML-Q agreed to support the Petitioner in the election of CM, Punjab. Therefore, it appears that on the pivotal date i.e., 22.07.2022 two conflicting directions to the members of PML-Q were holding the field. However, our concern in the present proceedings is with the constitutionality of the direction issued by Mr. Ch. Shujaat Hussain under Article 63A(1) (b) of the. Constitution to the PA Members of PML-Q because only that direction is impugned before us.

Question in Issue

9. The matter was taken up by the Court for hearing on 23.07.2022. During the course of arguments it became evident that the sole point of contention was whether it is the Party Head or the Parliamentary Party that is empowered to issue a direction to members of the Parliamentary Party under Article 63A(1)(b) of the Constitution in relation to the matters specified therein. Learned counsel for the Petitioner relying on the express wording of Article 63A(1)(b) (reproduced in para 3 above) and the relevant extract of our order in SCBA v. FOP (supra) dated 17.05.2022 (reproduced in para 4 above) submitted that the direction could only be given by the Parliamentary Party. Learned counsel for the respondents sought time to seek instructions and prepare their case. The proceeding was accordingly adjourned to 25.07.2022.

Submissions of Counsel

10. On 25.07.2022 apart from the learned counsel for the Petitioner and the respondents, Mr. Farook H. Naek Sr.ASC and Mr. Salahuddin Ahmed, ASC also entered appearances, respectively for the Pakistan People's Party Parliamentarians ("PPPP") and Mr. Ch. Shujaat Hussain and PML-Q. At this hearing the submissions of learned counsel for the respondents and the interveners, PPPP and Mr. Ch. Shujaat Hussain and PML-Q, were focused on the Full Court's 'decision in District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401). The crux of their argument was that the Court in that case had issued an authoritative interpretation of Article 63A(1)(b) of the Constitution, namely, that the Party Head has the power to issue a direction to members of the Parliamentary Party on how to vote in the matters specified in the said provision. According to them, this settled view was stated in paragraph 112 of the opinion of Justice Sheikh Azmat Saeed (as he then was) which was also signed by seven other Judges, including one of us, namely, Umar Ata Bandial, Chief Justice. Paragraph 112 reads:

112. Through the 18th Constitutional Amendment, Article 63A has only been amended to the extent that the decision of the party as how to vote has been conferred upon the Party Head and the matters in which such instructions will apply now includes an Amendment to the Constitution in addition to Money Bill and vote of confidence or no confidence. Such changes do not [a]ffect in substance the import and effect of the Provision with regard to the mischief sought to be suppressed as already held to be valid by this Court."

(emphasis supplied)

11. Learned counsel submitted that in light of the afore-noted dictum the direction by Mr. Ch. Shujaat Hussain to the members of PML-Q was issued in accordance with the Constitution. To reinforce this contention, they also relied on the Court's decisions in Sardar Sher Bahadar Khan v.

Election Commission of Pakistan (PLD 2018 SC 97) and Zulafiqar Ahmed Bhutta v. Federation of Pakistan (PLD 2018 SC 370). Nevertheless, learned counsel acknowledged that the opinion of the Court in the SCBA v. FOP case (supra), delivered by a five Member Bench, has diverged from the view enunciated in the District Bar Association case (supra) thereby creating doubt regarding the competent source of the direction under Article 63A(1)(b). Therefore, to resolve this doubt and to adjudicate the legal validity of the decision issued in the SCBA v. FOP case (supra), it was necessary that a Full Court hear the present matter.

12. In response, learned counsel for the Petitioner argued that the view expressed by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion was not the ratio decidendi of the District Bar Association case (supra). This is because the Full Court in that case was examining the vices of the 18th and 21st Amendments to the Constitution and had no concern with the question: 'Who is the competent authority under Article 63A(1)(b) to issue directions to members of the Parliamentary Party?' Secondly, learned counsel submitted that the District Bar Association case (supra) was heard by a Full Court of seventeen Judges. For any view expressed therein to take effect as a binding precedent required that such view be agreed to by a majority of at least nine Judges.

However, this was not the case in District Bar Association (supra) because Justice Sheikh Azmat Saeed's view was not shared by the majority, i.e. nine Judges. Therefore, his lordship's view was a plurality opinion and not a majority judgment of the Court. He lastly stated that reliance by the respondents and the interveners on Sardar Sher Bahadar Khan (supra) and Zulfiqar Ahmed Bhutta (supra) was misplaced because these cases do not declare that the power to issue a direction lies with the Party Head. Consequently, he submitted that the SCBA v. FOP case (supra) had correctly laid down the constitutional rule on the subject and there was neither a need for the Full Court to hear the present petition nor did the respondents and the interveners have any case on the merits.

Short Order Dated 25.07.2022

13. After hearing all the learned counsel at length, the Court vide short order dated 25.07.2022 ("Full Court Short Order") dismissed the respondents and the interveners request for referring the matter to the Full Court and adjourned the case to the next day for a further hearing on the merits: "ORDER We have heard detailed submissions made by the learned counsel for the petitioner on merits. In response, the learned counsel for the respondents/the interveners have made elaborate submissions in support of their plea that this matter be referred to the Full Court. During the course of such submissions, which extended over several hours, they have also made submissions or merits of the case and have primarily relied upon the judgments of this Court reported as District Bar Association v. Federation of Pakistan PLD 2015 SC 401, Sardar Sher Bahadar Khan v. Election Commission of Pakistan PLD 2018 SC 97 and Zulfiqar Ahmad Bhutta v. Federation of Pakistan PLD 2018 SC 370.

2. The essence of the matter is a question of law i.e. whether in terms of Article 63A(1)(b) of the Constitution of the Islamic Republic of Pakistan, 1973 the Party Head can issue a direction to the Members of the Parliamentary Party to cast their votes in a particular manner or is it the Parliamentary Party which has been given the mandate in terms of a plain reading of the said Article of the Constitution to issue such declaration, as held in' our short judgment dated 17.5.2022, rendered in Presidential Reference No.1/2022 and Constitution Petitions Nos.2 and 9/2022 reported as Supreme Court Bar Association of Pakistan v. Federation of Pakistan PLD 2022 SC 488. The deputy Speaker, Punjab Assembly has answered this question in favour of the Party Head by his Ruling dated 22.7.2022 but the learned counsel for the petitioner has submitted that this is a clear error of law which misunderstands and misapplies the afore-noted short judgment of this Court.

The learned counsel for the respondents and the learned counsel for PPP(P), as well as the learned counsel for Ch. Shujaat Hussain, the Party Head of PML(Q) as also the said political party have made detailed submissions in support of the afore-said Ruling of the Deputy Speaker.

3. Having considered the matter, for detailed reasons to follow the request for referring the matter to the Full Court is declined. Although elaborate submissions have been made on merits of the case as noted above, in view of the specific requests made by the learned counsel for the respondents/interveners for further time and seeking further instructions, we adjourn the matter for tomorrow i.e. 26.7.2022 at 11:30 am to give the learned counsel for the respondents further opportunity to add to their submissions on the merits, if deemed appropriate by them."

Hearing of 26.07.2022

14. When the hearing commenced the next day on 26.07.2022, learned counsel for the respondents and the interveners informed the Court that on instructions from their clients they would no longer be participating in the proceedings of the case. Consequently, only the learned counsel for the Petitioner assisted the Court and responded to the points raised on the previous day by the learned counsel for the respondents and the interveners.

Short Order Dated 26.07.2022

15. After learned counsel for the Petitioner concluded his arguments, the Court took some time to deliberate and by its Short Order announced in the evening of 26.07.2022 allowed the Constitution Petition. This Judgment is reported as Parvez Elahi v. Deputy Speaker, Provincial Assembly of Punjab (PLD 2022 SC 678) and for reference is produced below: "ORDER A Full Bench of the learned High Court vide judgment dated 30.06.2022 partly allowed certain writ petitions, inter alia, directing that the Session of the Punjab Assembly be resumed on 01.07.2022 (Friday) at 4:00 pm to hold poll in terms of Article 130(4) of the Constitution of the Islamic Republic of the Pakistan, 1973 ("Constitution"). The said election was the runoff in terms of the proviso to Article 130(4) ibid for the post of Chief Minister, Punjab to be held between the respondent No.2, Hama Shahbaz Sharif PML(N) and the petitioner PML(Q). A petition filed before this Court against the said order dated 30.06.2022 was disposed of on 01.07.2022 by a consent order. It was agreed by and between the petitioner and the respondent No.2 as well as the coalition partner of the petitioner (PTI) that the runoff election would be held on 22.07.2022 after the bye elections on the 20 general seats in the Punjab Assembly vacated by the PTI members whom the ECP had declared as defectors. Both The petitioner and the respondent No.2 agreed to the continued functioning of the respondent No.2 as the Chief Minister of the Province in a fiduciary capacity until holding of the runoff election. It was further agreed that the election would be held under the charge and supervision of the Election Act and the Cod, of Conduct of the ECP. It was further directed that the election process would be completed in accordance with the schedule announced by the ECP which would issue notification of the final result accordingly.

2. At the runoff election held on 22.07.2022 the petitioner secured 186 votes whilst the respondent No.2 got 179 votes which is recorded in the impugned ruling of the Deputy Speaker dated 22.07.2022. However, the Deputy Speaker excluded 10 votes in favour of the petitioner from count as a result of which he announced the winning candidate for the slot of Chief Minister to the respondent No.2. The votes were excluded on the basis that 10 members of the PML(Q) had failed to follow the direction under Article 63A(1)(b) of the Constitution given by the party head to the members of the Parliamentary Party of PML(Q).

3. As a result the winning candidate who had received 186 votes lost the election by 03 votes. The Deputy Speaker's ruling was challenged before this Court on 23.07.2022. After the preliminary hearing the matter has been heard at Principal seat, on 25.07.2022 and on 26.07.2022.

4. We have arrived at the conclusions that follow after hearing the learned counsel for the petitioner and the learned counsel for the respondents Nos. 1 to 3 at Islamabad. It may be mentioned that the learned counsel for the respondents raised an objection to the hearing of the matter by a three Member Bench of this Court and sought the referral thereof to the Full Court.

However, while explaining the grounds for making this request the learned counsel for the respondents Nos.1 and 2 also laid out their case on the merits of the dispute which essentially concerns a question of law touching the formation of the Provincial Government allegedly in violation of the provisions of the Constitution, in particular, Article 63A read with Article 130(4) thereof.

5. Although elaborate submissions were made in terms as above yesterday i.e. 25.07.2022, requests were made by the learned counsel for the respondents/interveners for further time to make additional submissions, if any, and seek instructions. We accordingly adjourned the matter for today i.e. 26.07.2022 at 11:30 am to give the learned counsel for the respondents/ interveners a further opportunity to add to their submissions on the merits of the case if deemed appropriate by them. However, when the matter was taken up at 11:30 am, the learned counsel for the respondents as well as interveners one by one stepped forward and informed the Court that their respective clients had instructed them not to participate further in the proceedings in this case. However, in the first session which continued for about one hour and forty-five minutes, they did not withdraw from the Court room and observed further proceedings in the matter during which we heard further arguments of the learned counsel for the petitioner specially in relation to submissions that had been made by the learned counsel for the respondent/ interveners on the previous date; and the reliance placed by them on the following judgments, of this Court: District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401), Sardar Sher Bahadar Khan v. Election Commission of Pakistan (PLD 2018 SC 97) and Zulfiqar Ahmed Bhutta v. Federation of Pakistan (PLD 2018 SC 370).

6. While we will deal with these decisions in our detailed reasons in support of this short order, it would not be out of place to say something here with regard to the first of the aforementioned judgments.

7. Much emphasis has been laid upon the judgment of the Full Court delivered, in the case of District Bar Association (supra) both on the merits and as a ground for placing the present petition for hearing before the Full Court. The said judgment adjudicated, as presently relevant, the vires of the 18th Amendment to the Constitution. By majority the 18th Constitutional Amendment was upheld. In the said majority one judgment authored by Justice Sheikh Azmat Saeed was agreed to by 7 other Judges. However, it is to be noted that since the matter was heard by a Full Court of 17 Judges, the majority for the purposes of determining the ratio decidendi of the Court had to have the concurrence of at least 9 Judges.

8. The respondents/intervenors have relied in particular on paragraph 112 of the judgment of Justice Sheikh Azmat Saeed to contend that it has been laid down therein that "decision of the party as to how to vote has been conferred upon the Party Head" and basing themselves on these words they submitted that the ruling of the Deputy Speaker dated 22.07.2022 was correct. In our view the judgment in the District Bar Association case (supra) requires consideration on two planes. Firstly, as to whether it constitutes a binding precedent such as would constrain this Bench and require us to follow the same in preference over the short order dated 17.05.2022 as regards Article 63A of the Constitution on the proscribed action and the consequences that such conduct would attract. Paragraph 112 referred to above and in particular the above quoted words relied upon do not form part of the ratio decidendi of the Court since (subject to what is said below) they did not constitute the views of the majority of the Judges on the Full Court. Other than the 8 Judges, who signed the judgment authored by Justice Sheikh Azmat Saeed, 6 other Judges also gave judgments dismissing the challenges to the 18th Constitutional Amendment. Learned counsel for the petitioner has taken us through each of the judgments to submit that none of those other Judges have dealt with this particular point which is as to whether the Party Head can eve any directions as contemplated by Article 63A(1)(b). Therefore, on this point the judgment being relied upon does not constitute binding precedent. The other aspect with regard to this paragraph read with paragraph 113 which was also made part of the submissions by learned counsel for the respondents/intervenors was that one of us (Umar Ata Bandial, CJ) was also one of the 8 Judges who signed the judgment authored by Justice Sheikh Azmat Saeed. It was suggested that, therefore, this was yet another reason as to why the petition before us ought to be placed before the Full Court.

9. We have very carefully considered this aspect of the matter, since it relates not just to, a question of law but also that of propriety. In the end, we have come to the conclusion that the submissions made in this regard cannot be accepted. This is so for multiple reasons which will be elaborated upon in the detailed reasons. At present it suffices to note that the observations in paragraphs 112 and 113 of the judgment have no relation with the question of wires of Article 63A of the Constitution that was under consideration, as set out in paragraph 105 of the judgment. The said question is squarely dealt with and answered in paragraph 1.11 of the judgment with reference to the ratio decidendi in the Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263). Secondly, the observations in the judgment being relied upon with respect to Article 63A are discordant with the actual provisions thereof on the subject of issuance of direction to the members of the Parliamentary Party. In that sense, the observations even if they had binding effect would have been per incuriam. In the above situation the observations in paragraphs 112 and 113 of the judgment are passing remarks not bearing relevance to the matter of vires nor explicating the actual or true words of the Constitution. Thirdly, if a Judge has unconsciously followed an incorrect view of the law, he has by conscious application of mind the freedom to adopt the correct ' view of the law subsequently. Fourthly, in the said case the concerned member of this Bench (Umar Ata Bandial, CJ) wrote a separate opinion in which other constitutional provisions that were under challenge were treated at length but no notice at all was taken of Article 63A or the 18th Constitutional Amendment. This reflects the insignificance of the said Constitutional provision as evidenced also by the opinions of Chief Justice Nasir-ul-Mulk, Justice Asif Saeed Khan Khosa and Justice Ejaz Afzal Khan which also did not consider Article 63A of the Constitution.

10. As a last resort, learned counsel for the respondents/ intervenors also relied upon the judgments in Sardar Sher Bahadur Khan (supra) and Zulfiqar Ahmed Bhutta (supra) to support their contention that the Party Head is the relevant person who has to issue a direction to the members of the Parliamentary Party under Article 63A(1)(b) of the Constitution. However, none of the cited cases substantiate this claim.

11. In view of the foregoing and for detailed reasons to be recorded later and such elaboration and amplification as may be necessary, the titled constitutional petition is allowed. The sole question of public importance with reference to enforcement of fundamental rights involved in this petition is whether the understanding and implementation of the short judgment of this Court dated 17.05.2022 passed in Presidential Reference No. 1 of 2022 read with Article 63A(1)(b) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") was correct. We find that the- understanding and implementation of the said short judgment as well as the provisions of Article 63A(1)(b) of the Constitution by the Deputy Speaker, Provincial Assembly of Punjab, Lahore (Respondent No.1) was patently incorrect and erroneous and cannot be sustained. The governance of the Province of Punjab in accordance with the Constitution has been subverted whereby the fundamental rights of the people have been seriously infringed. As a result, the Ruling dated 22.07.2022 issued by Respondent No.1, Deputy Speaker, Punjab Assembly is set aside and declared to be void, without lawful authority and of no legal effect.

12. In consequence of the above, having admittedly secured 186 votes as against 179 votes obtained by Mr. Hamza Shehbaz Sharif (Respondent No.2) in the runoff election of Chief Minister, Punjab held on 22.07.2022 pursuant to the consent order of this Court dated 01.07.2022 passed in Civil Petition No.2242 of 2022, Chaudhry Parvez Elahi (the petitioner) is declared as the duly elected Chief Minister, Punjab.

13. We direct the Chief Secretary, Punjab (Respondent No.3) to immediately and forthwith and on announcement of this short order issue the requisite notification declaring the petitioner as the duly elected Chief Minister, Punjab.

14. In consequence of the foregoing, it is declared that Respondent No.2 not being the duly elected Chief Minister, the oath of office administered to him was and is without lawful authority and of no legal effect. Likewise all acts, deeds and things attendant and consequent upon such oath including but not limited to the notification of Respondent No.2 and the formation and swearing in of the Cabinet on his advice is also declared to be without lawful authority and of no legal effect.

15. All Advisors, Special Advisors and Special Assistants etc. (if any) by whatever name called appointed by, on behalf or under orders/advice of Respondent No.2 shall immediately and forthwith cease to hold office, their appointment is declared illegal and without lawful authority and the respondent No.2, the persons appointed as Ministers on his advice and the aforementioned persons are relieved of their offices/posts with immediate effect.

16. We direct the Governor, Punjab to arrange and administer oath of office to the petitioner as the duly elected Chief Minister, Punjab in accordance with law and the Constitution not later than 11:30 pm tonight i.e. 26.07.2022. In case, the Governor, Punjab is unable or unwilling to administer such oath, the President of Pakistan may forthwith administer oath of office to the petitioner as Chief Minister, Punjab.

17. All acts, deeds and things lawfully done or purported to be done by Respondent No.2 and or any Member of the Provincial Cabinet in accordance with the Constitution and the law under colour of office are hereby saved and protected under the de facto doctrine subject to all just and legal exceptions and such review, modification, reversal or withdrawal as may be deemed appropriate by the incoming Chief Minister, Punjab and any member of the Cabinet or other officer appointed by him in accordance with law.

18. The office shall immediately communicate/ transmit a copy of this order to the Governor Punjab, Respondent No.1 (Deputy Speaker, Provincial Assembly of Punjab, Lahore) as well as Respondent No.3 (Chief Secretary, Punjab) for implementation and compliance of the same."

As a consequence of the Short Order, the Petitioner became the duly elected CM of Punjab on 26.07.2022 whilst the Respondent candidate ceased to hold the office of CM, Punjab.

16. We shall now set out our reasons for declining the request of the respondents and the interveners to constitute a Full Court and for setting aside the ruling of the Deputy Speaker dated 22.07.2022.

Maintainability

17. The matter that requires our initial consideration is whether the present Constitution Petition is maintainable under Article 184(3) of the Constitution. Whilst learned counsel for the respondents and the interveners did not dispute the maintainability of the petition, we are of the view that if is still necessary to deal with this point as it directly goes to the root of the Court's jurisdictional competence.

18. The original jurisdiction of the Court is regulated by Article 184(3) of the Constitution which lays down the requirements for invoking the said jurisdiction. For ease of reference Article 184(3) is produced below: "184. Original jurisdiction of Supreme Court.

(3) Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article."

It is clear that the Court may grant relief in a Constitution Petition that seeks the enforcement of a fundamental right(s) affecting the public at large. In the present matter, learned counsel for the Petitioner had alleged that the ruling of the Deputy Speaker given on 22.07.2022 prevented. PTI and PML-Q from forming the Government in the Province of Punjab, as a result of which Article 17(2) of the Constitution stood violated. The said Article states: "17. Freedom of association.

(2) Every citizen, not being in the service of Pakistan, shall have the right to form or be a member of a political party, subject to any reasonable restrictions imposed by law in the interest of the sovereignty or integrity of Pakistan..."

(emphasis supplied)

19. The Court recently had the opportunity to elaborate upon the protection accorded by Article 17(2) to political parties in the case of Pakistan People Party Parliamentarians (PPPP) v.

Federation of. Pakistan (PLD 2022 SC 574). Specifically, the Court held that Article 17(2) enshrines the democratic principle of Parliamentary Government: that is the right of political parties having the requisite majority in the National/Provincial Assemblies to form the Government at the Federal/Provincial levels. Relevant excerpts from that decision are produced below for easy reference: "23....At an elementary level, Article 17(2) guarantees citizens the right to form or be a member of a political party. However, case-law emanating from the Court has given this provision a dynamic interpretation thereby expanding the ambit of its protection. In Muhammad Nawaz Sharif v.

President of Pakistan (PLD 1993 SC 473) Chief Justice Nasim Hasan Shah (as he then was) observed in his concurring judgment: "Accordingly, the basic right "to form or be a member of a political party" conferred by Article 17(2) comprises the right of that political party not only to form a political party, contest elections under its banner but also, after successfully contesting the elections, the right to form the Government if its members, elected to that body, are in possession of the requisite majority... Any unlawful order which results in frustrating this activity, by removing it from office before the completion of its normal tenure would, therefore, constitute an infringement of this Fundamental Right."

(emphasis supplied)

The above observation lays down that Article 17(2) encompasses the right of political parties having the requisite majority in the elected Assemblies to form the Government. This view was subsequently endorsed by the Court in Workers' Party Pakistan v. Federation of Pakistan (PLD 2012 SC 681) at para 33.

24. The above formulation of Article 17(2) enshrines the crucial democratic principle of Parliamentary Government. That is government by a political party or a coalition of parties as comprise the majority of the total membership of the NA..."

(emphasis supplied)

In the PA as presently composed, the PTI and PML-Q Coalition comprises a combined strength of 186 Members whereas PML-N and its allies have 179 Members. As already noted above in para 7, in the second poll held under the first proviso to Article 130(4) of the Constitution a candidate for the office of CM needs to secure a 'majority of the votes of the Members present and voting to be elected. On the day of the election i.e. 22.07.2022, all the Members of the PTI and PML-Q coalition and of PML-N and its allies were present in the PA and voted for their respective candidates.

Therefore, in the above result the Petitioner, being the joint candidate of PTI and PML-Q for the office of CM, rightfully held the legitimate expectation of being elected CM and consequently forming the Government in Punjab. However, the Deputy Speaker's decision on 22.07.2022 to discard the 10 votes cast by the members of PML-Q in favour of the Petitioner, for being contrary to the direction issued by Mr. Ch. Shujaat Hussain, precluded the Petitioner from becoming CM and also brought an end to the aspirations of the PTI and PML-Q coalition of forming the Provincial Government in Punjab. A prima facie violation of Article 17(2) is therefore made out on the facts.

20. Whether the above grievance involves an element of public importance is the other constitutional criterion to adjudge the maintainability of the present petition. In this respect also the analysis of the Court in the case of PPPP v. FOP (supra) is pertinent. The relevant passage from that judgment is produced below: "27. Insofar, as the element of public importance is concerned it is established that the same has to be determined by the Court with reference to the facts and circumstances of each case [ref: Muhammad Tahir-ul-Qadri v. Federation of Pakistan (PLD 2013 SC 413) at para 26(c)]. In the same case the Court also elaborated upon the term 'public' as follows: "26. ...

(a) The term 'public' is invariably employed in contradistinction to the terms private or individual and connotes, as an adjective, something pertaining to or belonging to the people; relating to a nation State or community. In other words, it refers to something which is to be shared or participated in or enjoyed by the public at large, and is not limited or restricted to any particular class of the community."

(emphasis supplied)

We have already observed that the combined actions of the Deputy Speaker, PM and President left the public at large without an elected Legislature and Executive, the two crucial constitutional pillars of the State. Therefore, the people of Pakistan were denied their fundamental right to be governed by a constitutional Parliamentary Government in violation of the rule of law... The political void in governance and uncertainty that ensued affected every single citizen of Pakistan, all of whom were caught in the turmoil that loomed large in the country."

(emphasis supplied)

In the instant matter the ruling of the Deputy Speaker allowed the Respondent candidate to form the Government in Punjab even though he did not command the requisite majority in the PA. The ruling therefore allegedly deprived the people of Punjab, of 'their fundamental right to be governed by a constitutional Parliamentary Government in violation of the rule of law' thereby, 'causing a constitutional violation and turmoil in the Province that affected its electorate. As such a large section of the public was deprived of their fundamental right on account of the impugned ruling given by the Deputy Speaker on 22.07.2022, the same naturally raises questions of public importance. Consequently, the present Constitution Petition satisfies the two-fold test of Article 184(3) and is maintainable.

Full Court

21. It is prayed by the respondents and the interveners that this petition be heard by the Full Court.

Arguments on this question were heard on 25.07.2022 and the request was declined by the Full Court Short Order of the same date; (reproduced in para 13 above). The submissions of learned counsel in this regard are noted above in paras 10-12. Learned counsel for the respondents and the interveners mainly relied on the opinion of Justice Sheikh Azmat Saeed in the District Bar Association case (supra) to press their, plea for a hearing before the Full Court. They contended that Justice Sheikh Azmat Saeed's observation in paragraph 112 of his opinion that 'Article 63A has only been amended to the extent that the decision of the party as how to vote has been conferred upon to Party Head' was the ratio decidendi of the District Bar Association case (supra). Therefore, the direction by the Party Head of PML-Q, Mr. Ch. Shujaat Hussain, to members of his party to vote for the Respondent candidate was valid and lawful. On the other hand, the short order of the Court in SCBA v. FOP (supra) interpreted Article 63A(1.)(b) differently from the District Bar Association case (supra). Therefore, according to learned counsel, in these circumstances, the singular proper course available to the present Bench to either adopt or reject the Court's view articulated in the SCBA v. FOP case (supra) was to reconsider the Full Court's interpretation of Article 63A(1)(b) in the District Bar Association case (supra). This could only be done through the decision of another Full Court thereby allowing the Court to examine and ultimately decide the ruling of the Deputy, Speaker dated 22.07.2022.

A. Ratio Decidendi

22. To assess the above contention of learned counsel for the respondents and the interveners, the first step is to determine whether the view expressed by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion constitutes binding precedent. That will only be the case if paragraph 112 is the ratio decidendi of one, his Lordship's opinion and two of the District Bar Association case (supra).

This is because it is only the ratio decidendi of a judgment which forms its binding precedent.

Halsbury's Laws of England (Volume 11, 2020) explains the correlation between ratio decidendi and binding precedent as follows: "25. ...The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as precedent. This underlying principle is called the 'ratio decidendi', namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of, the material facts of the case under immediate consideration."

(emphasis supplied)

That the ratio decidendi of a case is its binding precedent was also affirmed by the Court in Pir Bakhsh v. Chairman Allotment Committee (PLD 1987 SC 145): ...In a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on questions of fact and law, but as to what the Court decides generally is the ratio decidendi or rule of law for which it is the authority. It is this ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in the original case..."

(emphasis supplied)

This dictum was later endorsed by the Court in Muhammad Sohail v. Government of N.W.F.P.

(1996 SCMR 218) at para 7. Likewise, in Irshad Ahmad Shaikh v. State (2000 SCMR 814) the Court held: "Now, every case is an authority, to the extent the same decides the legal controversy encompassed in it. In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court..."

(emphasis supplied)

23. The constituent elements of ratio decidendi that distinguish it from the other parts of a judgment have been elaborated in the case-law of the Court. For instance, in All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600) the Court referred the principles set out in the book 'Fundamental Law of Pakistan' authored by A.K. Brohi for determining the ratio decidendi of a case: "17. _1. "The underlying principle of a judicial decision", says Stephen in his commentaries on the Laws of England, Vol. I, p. 11, "which forms its authoritative element for the future, is termed Ratio Decidendi. It is contrasted with an Obiter Dictum, or that part of a judgment which consists of the expression of the Judge's opinion on a point of law which is not directly raised by the issue between the litigants. Obiter dicta are often valuable though not binding, statement of the law."

2. Sir John Salmond in his Jurisprudence says (at p.1910): "A precedent, therefore, is a judicial decision which contains in itself a principle. 'The underlying principle which forms its authoritative element is often term[ed] the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large."

3. So also Professor Chipman Gray says in his book 'Nature and the sources of Law' about a judicial precedent (p.261).

"It must be observed that [in] common law not every opinion expressed by a Judge forms a judicial precedent, two things must concur: it must be, in the' first place, an opinion given by a Judge, and, in the second place, it must be an opinion the formation of which is necessary for the decision of a particular, case; in other words, it must not be obiter dictum."

4. Similarly, Professor C.K. Allen, in his Law in the making' says (at p.241).

"Any judgment of any Court is authoritative only as to that part of it, called the ratio decidendi, which is considered to have been necessary to the decision of the actual issue between the litigants. It is for the Court, of whatever degree, which is called upon to consider the precedent, to determine what the true ratio decidendi was." ... "

(emphasis supplied)

A succinct but comprehensive synopsis of ratio decidendi can also be found in Jowitt's Dictionary of English Law (5th Edn): "The legal basis for a judicial decision, which is usually (but not necessarily) made explicit in the judgment. It includes only those statements of legal rules or principles that are the essential basis for reaching the decision, as opposed to other observations on the law (known as obiter dicta (q.v.)) which the judgment may contain. The ratio decidendi is important in the doctrine of precedent (q.v.) since it is only that part of the judgment of a superior court that constitutes a precedent."

(emphasis supplied)

24. Two points emerge from the above-quoted legal commentaries and jurisprudence of the Court: first, that the ratio decidendi encompasses only such reasoning of a judgment that is necessary for the decision of the question of law before the Court; and second that the ratio decidendi alone forms the binding precedent/authoritative element of a judgment which possesses the force of law. Other reasons given or discussions had in the judgment of the Court (or the separate opinion of a Judge) which are not necessary for the decision of the case are merely obiter dicta/passing remarks. The gist and effect of such dicta/remarks have been noted in Halsbury's Laws of England (Volume 11, 2020) in the following terms: "26. Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand are generally termed 'dicta' ; they have no binding authority on another court, but they may have some persuasive efficacy. There are dicta and dicta, however, and three types may be distinguished:

(1) mere passing remarks of a judge are known as 'obiter dicta', a recognised legal term of art that is not readily reproduced by an English phrase and is used to describe Judicial statements which are peripheral to the reason for the decision, the ratio decidendi;

(2) judicial dicta (which some authorities distinguish from 'obiter dicta') consist of considered enundations of the judge's opinion of the law upon some point which does not arise for decision on the facts of the case before him, and for that reason is not part of the ratio decidendi;

(3) a third type of dictum may consist in a judge supporting his view of a point in question by stating what has been done in other cases, not reported, so that his statement is one which rests not only on his own unsupported view of the law but also on the decisions of those other judges whose authority he has invoked (making him, as it were, a reporter pro tanto)."

(emphasis supplied)

The case of All Pakistan Newspapers Society (supra) has also collected the views of different authors on the meaning and legal value of obiter dicta. Relying again on the book 'Fundamental Law of Pakistan' by A.K. Brohi, the Court quoted: "17....

1. Stroud's Judicial Dictionary of Words and Phrases (5th Edition) (page 1721)

"OBITER DICTA" Obiter dicta are what the words literally signify, namely, statements by the way. If a Judge thinks it desirable to give his opinion on some point which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case, and the reasons for, the decision (Flower v. Ebbo Vole Steel, Iron and Coal Co. (1934) 2 K.B. 132, 154).

2. The Law Lexicon [Vol.fi] (page 243).

"OBITER DICTA, DICTA AND RATIO DECIDENDI" The question which is necessary for the determination of a case would be the ratio decidendi [and] the statements made in passing are in the nature of obiter dicta.

3. Words and Phrases [Vol. 29] [1972] (page 16).

"Obiter dicta" is that part of an opinion which does not express any final conclusion on any legal question presented by [the] case for determination or any conclusion on any principle of law which it is necessary to determine as basis for final conclusion on one or more questions to be decided by [Owl Court."

4. Shorter Constitution of India [Durga Das Basu] [12th Edition] (page 141).

"Obiter dicta.--(1) An obiter dictum is an observation by a Court on a legal question suggested by a case before it, but not arising in such manner as to require decision. It is not binding as a precedent, because the observation was unnecessary for the decision pronounced by the Court.

(2) But though not binding as a precedent, an obiter of the Supreme Court, being the highest ...- Tribunal, is worthy of respect and considerable weight." ..."

(emphasis supplied)

25. Having set out in some detail the concepts of ratio decidendi and obiter dicta; passing remarks, it would be appropriate to consider in which category paragraph 112 of Justice Sheikh Azmat Saeed's opinion falls. In the District Bar Association case (supra) the Court was concerned with the vires of the 18th and 21st Amendments to the Constitution. One of the constitutional provisions altered by the 18th Amendment was Article 63A (produced above in para 3). The said Article was amended in two respects, namely: i. The power to forward a declaration of defection against a member of the Parliamentary Party to the Presiding Officer of the House was withdrawn from the Head of the Parliamentary Party and vested in the Party Head; and ii. The instances in which defection by a member of the Parliamentary Party was prohibited were expanded to include a Constitution (Amendment) Bill.

Therefore, the only legal issue before the Court in respect of Article 63A was whether the afore- noted two changes brought about in Article 63A were Infra vires the Constitution. The Court in that case was not concerned with ascertaining the identity of the person authorised under Article 63A(1)(b) to issue a direction to members of the Parliamentary Party regarding their vote. That issue arose before the Court for the first time during Reference 1/2022 an4 again in the present proceedings A comparison and perusal of the original text of Article 63A as inserted into the Constitution by the 14th Amendment (1997), its current version as enforced by the 18th Amendment (2010) and the intermediate amendment made in 2002 explains the delayed challenge to Article, 63A(1)(b): "Constitution (Fourteenth Amendment)

Act, 1997Legal Framework Order, 2002Constitution (Eighteenth Amendment) Act, 2010

(1) If a member of a Parliamentary Party defects, he may be [by] means of a notice in writing addressed to him by the Head of the Political Party or such other person as may be authorised in this behalf by the Mad of the Political Party, be called upon [to] show cause, within not more than seven days of such a notice, as to why a declaration under clause (2) should not be made against him. If a notice Is issued under this(1) If a member of a Parliamentary Party composed of a single political party in a House. ....

(b) votes or abstains from voting in the House contrary to any direction issued by the Parlimentary party to which he belongs, in relation to.(1) If a member of a Parliamentary Party composed of a single political party in a I louse- --

(h) votes or abstain! from voting_ in the House contrary to any director Issued by the Parliamentary Party to clause, the Presiding Officer of the concerned House shall be informed accordingly.

Explanation.--- A member of a House shall be deemed to defect from a political party if he, having been elected as such, as a candidate or nominee of a political party, or under a symbol of political party or having been elected otherwise than as a candidate or nominee of a political party, and having become a member of a political party after such election by means of a declaration inwriting-- ...

(b) votes contrary to any direction issued by the Parliamentary Party to which he belongs...

(2) ...in cases covered by the Explanation to clause (1), sub-clauses (b) and (c), the declaration may be made by the Head of the Party concerned after examining the explanation of the member and determining whether or not that member has defected.(i) election of the Prime Minister or the Chief Minister: or

(ii) a vote of confidence or a vote of no-confidence; or

(iii) a Money Bill: he may be declared in writing by the Head of the Parliamentary Party to defected from the political party, and the Head of the Parliamentary Party may forward a copy of the declaration to. the Presiding Officer, and shall similarly forward a copy thereof to the member concerned... which he belongs in relation to.

(i) election of the Prime Minister or the Chief Minister: or

(ii) a vote of confidence or a vote of no confidence: or

(iii) a Money Bill or a Constitution (Amendment)

Bill; he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned...." (emphasis supplied)

26. Four points may be noted from a consideration of all three variations in the text of Article 63A, namely: i. The direction to members of a Parliamentary Party under Article 63A(1)(b) to vote in a particular manner is issued by the Parliamentary Party itself. This has been the unchanged rule since the 14th Amendment in 1997; ii. A declaration of defection under Article 63A(1) is forwarded by the Party Head to the Presiding Officer of the House since the 18th Amendment to the Constitution in 2010. This Amendment restored the source of the declaration to the original position under Article 63A(1) and reversed the change made by the Legal Framework Order, 2002, which had transferred this power to the Head of the Parliamentary Party; iii. The disobedience of a direction issued by the Parliamentary Party may result in a declaration of detection being forwarded against a member of the Parliamentary Party. This aspect of Article 63A has also remained untouched since the 14th Amendment in 1997; and iv. The direction issued by the Parliamentary Party and the declaration of defection forwarded by the Party Head are two distinct features of Article 63A. Their only connection with each other is that when a member of the Parliamentary Party has voted contrary to a direction of the Parliamentary Party, the Party Head may forward a declaration against him/her to the Presiding Officer of the House.

27. The nature, mode/manner and effect of a direction issued by a Parliamentary Party to its members under Article 63A(1)(b) were not called into question in the District Bar Association case (supra). The absence of a challenge thrown to this facet of Article 63A was most likely due to the fact that the said provision retained its original form as introduced by the 14th Amendment in 1997.

It was therefore neither germane to the dispute nor necessary for the Court in the District Bar Association case (supra) to comment on the legal aspects of the direction that is issued under Article 63A(1)(b). Indeed, the legal issue raised in that case, namely, the vires of the 18th Amendment to the Constitution did not require such scrutiny. Therefore, if any comments were made by a Judge in that case on the nature, mode/manner and/or effect of a direction issued under Article 63A(1)(b) these would be in the nature of obiter dicta/passing remarks and thus lack any binding effect.

28. We have already noted above in para 25 that the Court in the District Bar Association case (supra) was tasked with deciding the constitutionality of the two changes brought about in Article 63A by the 18th Amendment. To recall, these changes were: one, the restored power of the Party Head to forward a declaration of defection against a member of the Parliamentary Party to the Presiding Officer of the House; and two, the addition of a Constitution (Amendment) Bill in the category of matters on which defection by a member of the Parliamentary Party was made punishable. Therefore, the reasoning that explains why the amended Article 63A is intra vires the Constitution will form the ratio decidendi of his Lordship's opinion. A perusal of his Lordship's opinion4 discloses that such reasoning is set out in paragraph 111 thereof: "111. Article 63A as originally inserted by 14th Constitutional Amendment was also questioned in the Wukala Mahaz case (supra) as being violative of the Salient Features of the Constitution[.] However, by a majority decision Article 63A was held to be the in[t]ra vires the Constitution subject to the clarifications mentioned in the said judgment. Nothing has been stated at the bar to persuade us to revisit the said judgment."

(emphasis supplied)

It may be noticed from the above-cited passage that in upholding the validity of the amended Article 63A, justice Sheikh Azmat Saeed relied on the Court's decision in Wukala Mahaz Baral Tahafaz Dastoor v. Federation of Pakistan (PLD 1998 SC 1263). In that case the vires of the original (and much more widely worded) Article 63A was questioned. Nevertheless, subject to certain observations the Court by a majority (6:1) found the provisions of the original Article 63A to be intra vires the Constitution. The rationale of the Court for arriving at this conclusion was: "14. ...In our view, it is not necessary in the instant case to hold that the basic structure theory is applicable in Pakistan as we are inclined to hold that the impugned Article is not violative of any of the alleged three basic structures highlighted by Dr. A. Basit, namely, representative form of Government, Islamic concept of democracy and independence of Judiciary. The impugned Article will bring stability in the polity of the country as it will be instrumental in eradicating cancerous vice of the floor-crossing. It is also in consonance with the tenets of Islam and Sunnah as the same enjoined its believers to honour their commitments if the same arc not in conflict with the teachings of Islam and Sunnah..."

(emphasis supplied)

29. Having observed in paragraph 111 of his opinion that the Court's judgment in Wukala Mahaz (supra) was still good law, Justice Sheikh Azmat Saeed then went on to state that: "112. ...Such changes [brought about in Article 63A by the 18th Amendment] do not [a]ffect in substance the import and effect of the Provision with regard to the mischief sought to be suppressed as already held to be valid by this Court."

The two changes made by the 18th Amendment to Article 63A have already been notsed above in paras 25 and 28 and need not be repeated here. At present what is crucial for our purposes is that in respect of Article 63A, the Court in the District Bar Association case (supra) was concerned only with the legality of these two changes. In this situation, with utmost respect the statement made by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion that 'Article 63A has only been amended to the extent that the decision of the party as how to vote has been conferred upon the Party Head' is a textually inaccurate iteration of the change brought about in Article 63A of the Constitution by the 18th Amendment. The statement is inconsistent with the express language of Article 63A. Such an interpretation of Article 63A has been given without referring to its text and without giving reasons to justify such a reading of the Article. Additionally, for commenting on a matter beyond the scope of the legal dispute before the Court in the District Bar Association case (supra), the statement in paragraph 112 is also unnecessary to the decision of that case. As a result, that statemer does not constitute the ratio decidendi of Justice Sheikh Azmat Saeed's own opinion. It is instead a passing remark amounting to an obiter dictum. Therefore, it logically follows that the said statement made obiter cannot be the ratio decidendi of the District Bar Association case (supra). This is also because it was not concurred to by a majority of the other Judges in that case.

B. Plurality Opinion

30. This becomes obvious when the opinions authored by the other Judges who heard that case are examined. The District Bar Association case (supra) was presided over by a Full Court of seventeen Judges. Of these, ten delivered their respective opinions. One such opinion was authored by Justice Sheikh Azmat Saeed. The remaining nine Judges who gave their opinions in the case were: Chief Justice Nasir-ul-Mulk (as he then was); Justice Jawwad S Khawaja (as he then was); Justice Mian Saqib Nisar (as he then was); Justice Asif Saeed Khan Khosa (as he then was); Justice Sarmad Jalal Osmany (as he then was); Justice Ejaz Afzal Khan (as he then was); Justice Dost Muhammad Khan (as he then was); Justice Umar Ata Bandial (as he then was); and Justice Qazi Faez Isa.

31. Of these nine Judges, Chief Justice Nasir-ul-Mulk, Justice Asif Saeed Khan Khosa and Justice Umar Ata Bandial did not dilate upon Article 63A of the Constitution in their opinions. Likewise, Justice Ejaz Afzal Khan examined the vires, of the 18th Constitutional Amendment in generic terms and did not discuss Article 63A specifically. On the other hand, the opinion of Justice Sarmad Jalal Osmany touches upon Article 63A but it does not comment on the role of the Party Head. In any event, Justice Sarmad Jalal Osmany was one of the signatories of Justice Sheikh Azmat Saeed's opinion. Therefore, his separate opinion dealing with Article 63A does not convert the opinion of Justice Sheikh Azmat Saeed into the judgment of the Court.

32. There remain four Judges who also authored their opinions in the case. These are Justice Jawwad S. Khawaja. Justice Mian Saqib Nisar, Justice Dost Muhammad Khan and Justice Qazi Faez Isa. Three of these Judges,' whose opinions are quoted below, acknowledged that the Party Head merely has the power to issue a declaration that a member of the Parliamentary Party has defected, which view is consonant with the express provisions of Article 63A(1). Relevant extracts from the opinions of these three Judges are produced below: "Justice Jawwad S Khawaja

100. The issue which has now arisen on account of changes brought about in Article 63A by the eighteenth Amendment can be highlighted at this point... Secondly, "a party head" has been invested with the power to make a declaration that a parliamentarian has defected...

Justice Mian Saqib Nisar

167. Article 63A was substituted by Gen. Musharraf by means of the Legal Framework Order 2002 and this substitution ("the first substitution") was validated by the 17th Amendment. When the first substitution is compared with the Article as it now stands, it appears that (apart from a few minor changes) there is only one apparently significant difference; other than that, the two appear to be identical. This difference is that while previously the power to initiate proceedings lay with the head of the concerned "parliamentary party", that power now lies with the "party head"... Under the original version as enacted by Parliament the power of removal vested not with the head of the parliamentary party (which was an innovation introduced by Gen. Musharraf) but with the head of the political party. It is this original version which has now been unanimously reintroduced by Parliament...

173. ...I fail to see why a Prime Minister would ever vote contrary to the directions issued by the Parliamentary Party...

Justice Qazi Faez Isa 33....The directions by parliamentary leaders with regard to the election of Prime Minister or Chief Minister, vote of confidence or no confidence or a Money Bill appear to be reasonable and may also be necessary for the maintenance of party discipline, stability and the smooth functioning of democracy and Parliament...

34. Clause (6) of Article 63A (quoted above), has been deleted and the present Article 63A has a safeguard mechanism before disqualifying a member. Firstly, the Party Head has to provide an opportunity to show cause why a declaration that he/she has defected from the party may not be made..."

(emphasis supplied)

33. It may be noted from the dicta cited above that all three Judges were of the view that the Party Head either possesses the power to forward a declaration of defection against a member of the Parliamentary Party (Justice Jawwad S. Khawaja and Justice Qazi Faez Isa) or he has the power to initiate removal proceedings against such member (justice Mian Saqib Nisar). Presently the most relevant aspect of these opinions is that none of them either touch upon or hold that of the Party Head can issue a direction to members of the Parliamentary Party on how to vote. As stated above in para. 26(iv) the direction issued under Article 63A(1)(b) is a distinct feature of the process set out in Article 63A. This was also recognised by Justice Mian Saqib Nisar and to a certain extent by Justice Qazi Faez Isa who observed in their opinions that the duty to issue a direction under Article 63A(1)(b) lay with the Parliamentary Party and/or its leaders. Therefore, these, three Judges did not share the view expressed by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion about the person authorised to issue a direction under Article 63A(1)(b).

34. Lastly, the opinion rendered by Justice Dost Muhammad Khan also examined the provisions of Article 63A. Specifically in relation to the Party Head the opinion declared: "25. ...The Parliament's sovereignty has thus been diminished and compromised to great extent, in view of the provisions of Article 63A of the Constitution, as for any dissent or voting by any member against the whims and wishes of the party head on the matters set out therein he can lose his seat as Member of the Parliament..."

(emphasis supplied)

In the context of the changes brought about in Article 63A by the 18th Amendment, the underlined portion of Justice Dost Muhammad Khan's opinion makes it immediately clear that his Lordship is referring to the power conferred on the Party Head to forward a declaration of defection against a member of the Parliamentary Party to the Presiding Officer of the House (refer para 25 above).

Such a declaration calls for the Member's seat in Parliament to be forfeited by his/her removal therefrom on the ground of defection. For that reason, his Lordship observed that 'he [member] can lose his seat as Member of the Parliament.' It is settled and not disputed by the parties that a member of a Parliamentary Party can only lose his/her seat in Parliament (provided the other procedural requirements of Article 63A are satisfied) if the Party Head exercises his power to forward a declaration of defection against him/her to the Presiding Officer of the House. This is also expressly declared by Article 63A(4) of the Constitution which reads: "63A. Disqualification on grounds of defection, etc.

(1) If a member of a Parliamentary Party composed of a single political party in a House--

(b) votes or abstains from voting in the House contrary to any direction issued by the Parliamentary Party to which he belongs... he may be declared in writing by the Party Head to have defected from the political party, and the Party Head may forward a copy of the declaration to the Presiding Officer, and shall similarly forward a copy thereof to the member concerned:

(3) Upon receipt of the declaration under clause (1), the Presiding Officer of the House shall within two days refer... the declaration to the Chief Election Commissioner who shall lay the declaration before the Election Commission for its decision...

(4) Where the Election Commission confirms the declaration, the member referred to in clause (1) shall cease to be a member of the House and his seat shall become vacant."

(emphasis supplied)

Consequently, Justice Dost Muhammad Khan did not pronounce, as did Justice Sheikh Azmat Saeed in his opinion, that the Party Head controls the voting choice of the members of the Parliamentary Party. As a result, out of the seventeen Judges who heard and decided the District Bar Association case (supra) only Justice Sheikh Azmat Saeed made a passing remark about the authority of the Party Head to issue a direction to members of the Parliamentary Party. This view was endorsed by seven other Judges on the Bench. However, the remaining nine Judges did not consider this aspect of Article 63A; and rightly so as it did not arise for their adjudication on the wires of the 18th Amendment. Therefore, these nine Judges, constituting the majority, did not concur with the view of Justice Sheikh Azmat Saeed. In such circumstances, paragraph 112 of Justice Sheikh Azmat Saeed's opinion is merely a plurality view. A plurality opinion (or as here a plurality view) is different from a majority opinion (or view) 01 the Court. The distinction between the two has been elaborated in Black's Law Dictionary (10th Edn): "majority opinion. An opinion joined in by more than half the Judges considering a given case. --- Also termed main opinion. plurality opinion. An opinion lacking enough judges' votes to constitute a majority, but receiving more votes than any other opinion."

"35. The above-noted definitions highlight the crucial difference between a majority opinion and a plurality opinion. The distinction lies in the numerical strength of judicial approval that each commands in a given case. A plurality opinion lacks the support of the majority: this has a decisive effect on its precedential value. Reference is made to Corpus. Juris Secundum (Volume 21, 1990): "Ordinarily, only an opinion which is concurred in by at least a majority of the court of last resort constitutes a precedent: if fewer than the majority concur there is no ruling opinion except as to the disposition of the case..."

(emphasis supplied)

A similar stance with regards to plurality opinions was also adopted by the United States Supreme Court in CTS Corp. v Dynamics Corp. of America [481 US 69 (1987)1: "...As the plurality opinion in [Edgar v. MITE Corp, [457 US 624 (1982)] did not represent the views of a majority of the Court, we are not bound by its reasoning..."

(emphasis supplied)

Recently, one of us (Justice Munib Akhtar) also elaborated upon the precedential value of plurality opinions in the case of Justice Qazi Faez Isa v. President of Pakistan (PLD 2022 SC 119): "90. ...Firstly, in any case heard by a multimember Bench (i.e., a Bench comprising of more than one Judge, whether of even or odd numbered strength) the operative decision (whether judgment, decree or order) must have the support of a majority. Even fifty percent is not enough: that is only a sluralit. The majority threshold must be crossed. Of course, in most cases there is unanimity. But unanimity is, at least as relevant here, conceptually only a "special" situation of a majority (i.e., all the members of the Bench constitute the "majority"). The "general" rule is that there must be at least a majority. If there is no majority then there is no operative order or decree or in the case of a judgment no ratio decidendi of the Court, although there is of course a ratio of such judgment(s) as may have been delivered. Secondly, if there are multiple judgments or orders (short or otherwise) it is only the one which commands the support of the majority that has operative effect as the decision of the Court. If there be no such single judgment then it is the commonality (if any) between them such as 'commands the support of the majority that has operative effect. Anything (whether determination or decision on a legal point in issue, enunciation of any rule or principle of law or order) that falls short of this mark (i.e., is outside or beyond that what is common) is not the decision of the Court and has no operative effect."

(emphasis supplied)

We have already noted above that paragraph 112 of Justice Sheikh Azmat Saeed's opinion was subscribed to by seven Judges. The other nine Judges did not address the issue raised therein. As a result, paragraph 112 failed to command the support of the requisite majority of the Full J Court i.e., nine Judges from a total of seventeen Judges. Therefore, as per settled legal principles it is bereft of precedential worth.

36. Against this background, the insistence of learned counsel for the respondents and the interveners that we should constitute a Full Court to hear the present matter because it is an established practice of the Court that the decision, of a Bench can only be reviewed, modified or set aside by a Larger Bench is misconceived. The constitution of a Full Court may have been warranted if the statement made by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion was the ratio decidendi of the District Bar Association case (supra), namely, that it was necessary for the decision of that case and thus possessed binding effect. Nevertheless, assuming this to have been the position, the statement made by Justice Sheikh Azmat Saeed in paragraph 112 of his opinion would still be incorrect. This is because it would either be: a. Per incuriam for being 'based upon ignorance of any provisions of the Constitution, and/or is founded on [serious] misinterpretation thereof [ref: Regarding Pensionary Benefits of the Judges of the Superior Courts (PLD 2013 SC 829) at para 4 of Justice Mian Saqib Nisar's opinion]; '[s]uch decisions [per incuriam] are those which are given in ignorance of the terms of the Constitution or of a statute or of a rule having the force of a statute' [ref: Muhammad Rafique Goreja v. Islamic Republic of Pakistan (2006 SCMR 1317) at para 5]; or b. It would be a decision in sub silentio because 'the particular point of law involved in the decision [wa]s not perceived by the Court or present to its mind. Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent' [ref: Sindh High Court Bar Association v. Federation of Pakistan (PLD 2009 SC 879) at para 40 of Justice Ch. Ijaz Ahmed's (as he then was) opinion]. It would be likewise if the conclusion is 'delivered without argument, without reference to the crucial words of the rule, and without any citation of authority' [ref: Lancaster Motor Company v. Barclays Bank [1941] 1 KB 675, United Kingdom Court of Appeal].

The principles of per incuriam and sub silentio are exceptions to the doctrine of precedent and permit the Court to overrule the ratio decidendi of the incorrect decision (per incuriam) or to ignore the same (sub silentio). Nevertheless, we have already held above that the view expressed by Justice Sheikh Azmat Saeed in paragraph 112 was: i. Extraneous to the controversy that was before the Court in the District Bar Association case (supra), namely, the constitutionality of the changes brought about in Article 63A of the Constitution by the 18th Amendment (paras 25, 27 and 29 above); and ii. Unsupported and unaddressed by a majority (nine) of the Judges who heard and decided the District Bar Association case (supra), (para 34 above).

For both reasons, paragraph. 112 does not enunciate the ratio decidendi of the District Bar Association case (supra). As neither of the situations mentioned above in sub-paras (a) and (b) are attracted and nor is the statement made in paragraph 112 of Justice Sheikh Azmat Saeed's opinion the operative part of the District Bar Association's case (supra), there is accordingly no cogent reason to constitute a Full Court to hear the present matter.

37. Equally, this case does not raise any new or complex question of constitutional interpretation nor calls for a review or revisit of the ratio decidendi of a case. Instead, the dispute before us has crystallised into a simple exercise of enforcing the fundamental right(s) of the public at large in light of the directly applicable principles laid down in PPPP v. FOP (supra).

38. Having set out our reasons for declining the request of the respondents and the interveners to constitute a Full Court, we can now proceed to consider the substantive merits of the present petition. In doing so we will firstly deal with the preliminary objection raised by Mr. Farook H. Naek, Sr.ASC that the ruling of the Deputy Speaker dated 22.07.2022 could not be inquired into by the Court because of the limitation contained in Article 69 of the Constitution read with Article 127.

Deputy Speaker's Ruling Dated 22.07.2022 A. Article 69 of the Constitution

39. The qualified immunity accorded by the Constitution to proceedings of the PA from judicial scrutiny formed the crux of the submission of Mr. Farook H. Naek, Sr.ASC. He urged that the present petition offends that protection.

40. To understand the proposition of Mr. Farook H. Naek, Sr.ASC, it is necessary to first examine the relevant provisions of the Constitution which offer qualified immunity to the proceedings of Parliament and Provincial Assemblies: "69. Courts not to inquire into proceedings of Majlis-e-Shoora (Parliament).

(1) The validity of any proceedings in [Majlis-e-Shoora (Parliament)] shall not be called in question on the ground of any irregularity of procedure.

"127. Provisions relating to National Assembly, etc., to apply to Provincial Assembly, etc. Subject to the Constitution, the provisions of clauses (2) to (8) of Article 53, clauses (2) and (3) of Article 54, Article 55, Articles 63 to 67, Article 69, Article 77, Article 87 and Article 88 shall apply to and in relation to a Provincial Assembly..."

(emphasis supplied)

While Article 69(1) shields proceedings in Parliament, Article, 127 extends this cover to proceedings of the Provincial Assemblies. The availability and extent of such protection were recently answered in great detail by the Court in PPPP v. FOP (supra). The relevant portions from that judgment are produced below for reference: "44. ... The protection now afforded to proceedings in Parliament by Article 69(1) gives cover only to the form and manner of proceedings in the NA, in particular the procedure specified in the NA Procedure Rules that regulates the business of the House. As a result, proceedings that infringe the provisions of the Constitution are no longer protected. This pertains to provisions that create substantive rights and duties or prescribe procedure...

51. ... The foremost acts that are protected by the Constitution are enumerated in Article 66(1): "66. Privileges of members, etc. (1) Subject to the Constitution and to the rules of procedure of [Majlis-e-Shoora (Parliament)], there shall be freedom of speech in [Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in [Majlis-e-Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of [Majlis-e-Shoora (Parliament)] of any report, paper, votes or proceedings."

(emphasis supplied)

52. It may be observed from the text of Article 66(1) that proceedings in Parliament are essentially comprised of the two basic rights of the members of the NA, namely. the freedom of expression and the right to vote... Such supplementary immunity granted to the speech and vote of members of the NA is embedded in the Constitution to ensure the independence of Parliament...

53. Even in the UK, the phrase 'proceedings in Parliament' as used in Article IX of the Bill of Rights 1688 has been interpreted in similar terms. An authoritative elucidation of it can be found in Erskine May (25th Edn, LexisNexis): "Paragraph 13.12 ...The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action usually a decision, taken by the 'House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of Article IX... An individual Member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion.; or presenting a petition or report from a committee."

(emphasis supplied)

An over-view of para. 13.12 of Erskine May affirms that the freedom of every individual member to speak and vote and the collective decisions of the House are treated as proceedings in Parliament.

The collective decision making of the House may be viewed as the extension of the right of every member of the House to express his/her views on a matter and ultimately vote on it to take a collective decision."

(emphasis supplied)

41. The dicta cited above makes it clear that Article 127 along with Article 69(1) provide limited protection to proceedings in Parliament/PA from judicial scrutiny. Therefore, the Court ordinarily will not interfere in the proceedings of Parliament/PA that arc safeguarded by the Constitution, namely, the individual rights of Members to speak and vote on the floor of the Assembly and the collective decision-making of the Assembly. However, if these proceedings infringe any provision of the Constitution the Court has jurisdiction to intervene to set aside the unconstitutional act(s).

42. We have already noted above that the collective decision-making of the Members of a Provincial Assembly falls within the ambit of proceedings. Such Collective decision-making took place in PA on 22.07.2022. Firstly, when its Members cast their votes to elect the new CM and secondly, when the Deputy Speaker gave effect to their act of franchise by issuing two rulings. The first ruling announced the result of the voting by declaring the total votes polled in favour of each candidate; whereas the second, and more pivotal, ruling rejected the 10 votes cast by the members of PML-Q in favour of the Petitioner thereby resulting in the Respondent candidate, who was the runner-up after the first ruling, being declared CM, Punjab. Since both the rulings of the Deputy Speaker are closely connected to the election of CM, Punjab (and in fact have a direct bearing on the result of that election), these, come within the ambit of proceedings of the PA.

43. However, in the present case, the Petitioner has claimed that the Deputy Speaker's second ruling has committed a constitutional violation by rejecting the 10 votes of PML-Q on the basis of a direction received by Mr. Ch. Shujaat Hussain, the Party Head of PML-Q. In so doing the Deputy Speaker has ignored the express mandate of Article 63A(1)(b) of the Constitution. As already discussed above the said provision ordains, inter alia, that the Parliamentary Party shall issue a direction to its elected members on how to vote in the election of the CM in the Provincial Assembly. No other source of a direction is provided therein, for example the Party Head as was wrongly presumed by the impugned second ruling of the Deputy Speaker dated 22.07.2022. We find that there is merit in the Petitioner's contention. The plain language of Article 63A(1)(b) supports his interpretation of the said provision. As already held by the Court in the case of PPPP v. FOP (supra) there is no immunity available to proceedings of Parliament/PA if these violate the Constitution.

Therefore, since the ruling of the Deputy Speaker dated 22.07.2022 is alleged to be contrary to Article 63A, the Court has jurisdiction to consider the record and ascertain the alleged violation of the Constitution.

B. Article 63A of the Constitution

44. The sole point of contention that arises in the instant matter is whether the Deputy Speaker had the power to exclude the 10 votes cast by. the members of PML-Q on the basis of a direction issued by the Party Head or could that happen only on the strength of a direction issued by the Parliamentary Party. The language of Article 63A in this regard is manifestly clear that the vote cannot be cast contrary to 'any direction issued by the Parliamentary Party.' This interpretation was also advanced by the Court in the short order (reproduced above in para 4) and the detailed reasons of the SCBA v. FOP case (supra). Relevant extracts from the detailed reasons are produced below: "96. ... It will be noted that in Article 63A, as it now stands, for purposes of clause (b) the power to issue the direction is vested in the parliamentary party and if there is a proscribed vote then, in terms of the first pathway, the declaration is to be made by the Party Head. There is thus a bifurcation of powers...

97. It follows from the foregoing that the parliamentary party cannot delegate, transfer assign or in any manner "outsource" the power to conferred on it in terms of para (b) to anyone, including the Party Head. Nor can it act merely at the behest or on the dictate of another: In constitutional terms, it is for the parliamentary party itself to decide whether the direction is to be issued..."

(emphasis supplied)

Therefore, the language of Article 63A(1)(b) is explained by the Court's decision in the case of SCBA v. FOP (supra) to exclude the Party Head from being the decisive person/authority that issues the direction on how to vote.

45. Learned counsel for the respondents and the interveners attempted to bypass the clear text of Article 63A(1)(b) and its interpretation as explained by the Court by relying on the cases of Sardar Sher Bahadar Khan (supra) and Zulfiqar Ahmed Bhutta (supra). According to them both decisions envisage that the power to issue a direction under Article 63A(1)(b) vests in the Party Head. We have read the two judgments and consider that for separate reasons these do not support the stance of learned counsel for the respondents and' the interveners. Firstly, in the case of Zulfiqar Ahmed Bhutta (supra) the vires of Section 203 of the Elections Act, 2017 were under question. That Section permits a person to become an office-bearer of a political party even if he/she is not qualified or disqualified under Articles 62 and 63 of the Constitution to be elected/chosen as a Member of Parliament. Allowing the Constitution Petitions, the Court observed that since the power to forward a declaration of defection against a member of the Parliamentary Party vests in the Party Head under Article 63A, his/her discretion and power to prosecute and exonerate; members of the Parliamentary Party required that Section 203 be read and interpreted subject to the provisions of Articles 62, 63 and 63A of the Constitution for the reason that: "46. ... A person who does not himself qualify to be a member of the Parliament, cannot in exerciser of power under 63A be allowed to declare 'parliamentary members as disqualified to exercise the authority (of Almighty Allah) as His delegatees as a 'sacred trust'. Such interpretation would ex facie be absurd. How can it possibly be held that a Party Head who virtually controls and holds in his hands the fate and prospects of members of his party holding public office (who fulfill the requirements of Articles 62 and 63 of the Constitution), need not meet the requirements of the said Articles himself..."

(emphasis supplied)

46. Next, there is the case of Sardar Sher Bahadar Khan (supra). It was concerned with local government elections in the Province of Khyber Pakhtunkhwa. Article 63A does not apply to such elections. As a result, the Court in that case neither referred to nor examined the provisions of the said Article. That case is, therefore, inapplicable to the present legal controversy.

Detailed Reasons Issued by the Deputy Speaker

47. For the sake of completeness, it may be noted that a C.M.A. No.5193/2022 was filed by learned counsel for the Respondent candidate on 25.07.2022. This CMA contains, inter alia, the detailed reasons released by the Deputy Speaker in support of his ruling issued on 22.07.2022 on the floor of the PA. The detailed reasons were neither referred to nor read by learned counsel for the respondents and the interveners during the hearings of 25.07.2022 and 26.07.2022. Nevertheless, to satisfy the dictates of fairness and equity we on our own have perused the detailed reasons. The relevant portions therefrom are produced below:

5. However, I am in receipt of the direction issued by Ch. Shujaat Hussain, President/ Party Head of PML, to the members belonging to Pakistan Muslim League whereunder all the members of PML have been directed to vote in favour of Mr. Muhammad Hamza Shehbaz Sharif. Considering, the above mentioned events, material, orders/judgments of the courts, I am of the opinion that the votes of the members of the provincial assembly of the Punjab, belonging to Pakistan Muslim League, are in violation of the directions of the Party Head of Pakistan Muslim League, therefore these votes are liable to be excluded from the final count of the votes in view of the Judgments of the Hon'ble Supreme Court [SCBA v. FOP dated 17.05.2022], Lahore High Court [short order dated 30.06.2022] and Election Commission of Pakistan [decision dated 20.05.2022]...

6. The above decision of the Election Commission [dated 20.05.2022] upholding the declaration was based on the violation of the directions issued by Mr. Imran Khan Chairman PTI, and communicated to the members by Asad Umar, Secretary General of PTI. The above decision shows that the directions could be issued by the Party Head which was upheld by. ECP."

(emphasis supplied)

48. The above-cited excerpts show that the Deputy Speaker primarily relied on the short order issued in SCBA v. FOP (supra), the short order of the Lahore High Court dated 30.06.2022 and the order of the ECP dated 20.05.2022 to exclude the 10 votes cast by the members of PML-Q. However, for the reasons already set out above, it is perfectly clear that the Court in SCBA v. FOP (supra) did not recognise the Party Head as the competent authority under Article 63A(1)(b) of the Constitution to issue a direction to members of the Parliamentary Party. Insofar as the Lahore High Court's short order and the ECP's order are concerned, the same are not precedents for the Court to follow. Be that as it may, neither decision makes any reference as to who is to issue a direction to members of the Parliamentary Party under Article 63A(1)(b) and so both are irrelevant for determining the present legal controversy.

Conclusion

49. We are therefore of the considered view that the Deputy Speaker's reliance on the language of Article 63A(1)(b) and our short order issued in SCBA v. FOP (supra) to discard the 10 votes cast by the members of PML-Q on 22.07.2022 on the direction of Mr. Ch. Shujaat Hussain was erroneous since the said direction was issued by an unauthorised person, namely, the Party Head contrary to the express language of Article 63A(1)(b). His ruling therefore is of no legal effect and is set aside.

Consequently, on account of the inclusion of the 10 votes of PML-Q, the Petitioner having secured 186 votes as opposed to the Respondent candidate's 179 votes is declared the duly elected CM, Punjab. Governor, Punjab is directed to administer oath of office to the Petitioner on the terms set out in paragraph 16 of the Short Order dated 26.07.2022 and on his failure to do so the President may administer such oath to the Petitioner. The present Constitution Petition is allowed in the above terms.

1. Excerpt taken from the transcript of the Deputy Speaker's ruling dated 22.07.222, which is part of the record.