This order shall decide the Writ Petitions Nos. 45456, 45516 & 45515 of 2022, which have been received by this Court in marking today after 02:00 p.m.
2. Through W.P. No. 45456 of 2022 Muhammad Sibtain Khan M.P.A./opposition leader Punjab Assembly and through W.P. No. 44516 of 2022, Mrs. Zainab Umair, M.P.A. Punjab Assembly, both have called in question the order dated 22.07.2022 passed by Deputy Speaker/Presiding Officer of Punjab Assembly Respondent No. 4, who has to conduct the election for the post of Chief Minister to be held at 04:00 p.m. today, whereby he has issued D.O. No. SO/Dy:Speaker/2022 addressed to Chief Secretary Punjab and Inspector General of Punjab stating therein that during proceedings of house, some elements are disrupting the process of house for conducting proceedings of the house and in terms they are hampering the process of election of Chief Minister through violent activity. It is claimed that life of Deputy Speaker, M.P.As. as well as assembly staff is at stake and has requested to deploy requisite security force in the house as well as within the precincts of Punjab Assembly building in terms of Rule 210 of Rules of Procedure of Provincial Assembly, 1997.
Through W.P. No. 45515 of 2022 Muhammad Khan Bhatti Secretary Punjab Assembly, Lahore had challenged the notification issued by Inspector General of Punjab Police/Respondent No. 3 in the said petition whereby police force has been deployed in Punjab Assembly premises at different places and also prayed that action of the Deputy Speaker Respondent No. 2 in the said petition to appoint Respondent No. 4/Amir Habib, Special Secretary-II of Punjab Assembly, Lahore, the Secretary of Assembly is devoid of any lawful authority as he has no authority under the law of appointment of Secretary when the Secretary is existing and functioning under the law.
3. Learned counsel for the petitioners have argued in support of their petitions and learned A.A.Gs. have defended the same through their respective arguments which shall be dealt with while dealing the issues raised by them in subsequent paragraphs.
4. Main contention of the petitioners raised through these petitions is that Deputy Speaker has been appointed only for today as Presiding Officer for the purpose of conducting elections to the post of Chief Minister, Punjab under specific directions issued by Hon'ble Supreme Court of Pakistan, therefore, he had no authority to pass any orders beyond the scope of framework provided by Hon'ble Supreme Court of Pakistan, hence, impugned order dated 22.07.2022 and order of Deputy Speaker appointing Amir Habib Assistant Secretary for conducting election are not sustainable.
5. On the other hand, both the learned A.A.Gs. have defended the impugned order by claiming the same to have been passed in consonance with the orders of Hon'ble Supreme Court of Pakistan as well as various orders passed by learned Benches of this Court. For the purpose of further proceedings with this matter order of Hon'ble Supreme Court of Pakistan has been relied upon by the parties, operative part of order of Hon'ble Supreme Court of Pakistan is reproduced as under; "10. Based on the unqualified consent of all parties before this Court and the assurances obtained by the Court from Mr. Sharif, 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. The session in which such poll takes place will be chaired by the Deputy Speaker of the Assembly. The Speaker/ Deputy Speaker shall issue a formal notification convening the session in this regard after fulfilling all legal and procedural formalities within one week from today;
(ii) Till such time that the poll as directed above is held in accordance with the Constitution, Mr. Sharif has undertaken before the Court that he and his Cabinet shall exercise the powers and function their offices strictly in fiduciary capacity as envisaged by the Constitution and the law to support the process of bye-election in the Province to be conducted in a free, fair and transparent manner by the Election Commission of Pakistan. That such commitment to act as trustees is meant to fulfill the duty of care towards citizens of Punjab so that they - are not deprived of due representation and governance and to avoid any constitutional vacuum, anomaly or complication. However, such entrustment shall continue only till 22.07.2022 when a second poll takes place in terms of Article 130(4) of the Constitution;
(iii) The Lahore High Court shall issue its detailed reasons for the order dated 27.05.2622 passed in W.P. No. 34654 of 2022 in this regard within one week from today 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. If any person is aggrieved of any such notification, he/she shall, have the right to agitate such grievance before the appropriate forum in accordance with law;
(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. The process shall be completed as per the schedule already announced by the ECP. The final result(s) and notifications shall also be issued accordingly. Any and all disputes arising out of or relating to such bye-election shall be dealt with by the relevant fora, in accordance with law;
(v) The ECP as well as all relevant State functionaries including members of the Parliament and the Provincial Assemblies, Ministers, Advisors, etc. shall ensure that all parties follow the election laws as well as the Code of Conduct issued by the ECP in their letter and spirit and refrain from any interference, inducement or influence in the affairs of the executive, the local administration, the ECP, etc. or indulge in corrupt and illegal practices, the use of State machinery in the process of bye-elections, harassment, intimidation or use of law enforcement agencies against opponents/candidates or their supporters, etc. except to restore law and order;
(vi) No transfers or postings of officials of the local administration, police, Provincial Election Commission, etc. shall be undertaken in order to ensure fairness and transparency of the election except in accordance with specific provisions of the Election Act, 2017 and the Code of Conduct to meet emergency situations. Further, no fresh development schemes and/or financial allocations shall be made in the constituencies where the bye-election is to be held till finalization of the bye- election. In the event of violation of the provisions of the Election Act, relevant rules framed thereunder or the Code of Conduct, the ECP shall take appropriate action in accordance with law;
(vii) The Speaker, Punjab Assembly has given a categoric assurance that all matters relating to the business of the Assembly shall be handled and dealt with peacefully, impartially and transparently within the Assembly Chambers and its relevant offices in accordance with the Constitution, the law and the rules. In addition, all parties including Mr. Sharif have categorically assured and stated that a peaceful and congenial atmosphere will be maintained not only during the poll but also in the proceedings in the Provincial Assembly held thereafter until announcement of the result. We expect that such undertakings and assurances shall be honored and implemented; and
(viii) It is unreservedly and categorically agreed and undertaken by all parties before us that it is the constitutional, legal and moral responsibility of all political parties and their members/candidates involved in bye-elections and the subsequent voting in the Provincial Assembly to abide by the ECP Code of Conduct and the Rules of Procedure of the Provincial Assembly and the norms/ conventions of the parliamentary conduct."
6. Petitioners have relied upon Paragraph No. (v) & (vii) of Paragraph No. 10 and have stated that the order of Deputy Speaker is not in consonance with the afore-referred direction of Hon'ble Supreme Court of Pakistan. For further clarification the order of Deputy Speaker dated 22.07.2022 is reproduced as under: "D.O.No. SO/Dy:Spkr/2022 PROVINCIAL ASSEMBLY OF THE PUNJAB 22nd July 2022 Subject: DEPLOYMENT OF THE REQUISITE SECURITY FORCES In pursuance of the Order of the Hon'ble Supreme Court of Pakistan dated 01.07.2022, passed in Civil Petition No. 2242 of 2022, and the Order of the Hon'ble Lahore High Court, Lahore dated 30.06.2022 passed in Writ Petition No. 30456 of 2022 and other connected cases, I, Sardar Dust Muhammad Mazari, Deputy Speaker, am presiding the sitting of the Assembly today on 22.07.2022 for conducting the second poll in the election of the Chief Minister Punjab in terms of Article 130 of the Constitution of the Islamic Republic of Pakistan read with Rule 20 of the Rules of Procedure of Provincial Assembly of the Punjab 1997.
2. During the proceedings of the House, some elements are disrupting the proceedings of the House and are preventing me from conducting the proceedings of the House, and in turn, they are hampering the process of election of the Chief Minister. The said violent activity may put in danger not only life but also lives of the innocent MPAs and the Assembly staff.
3. In view of the above situation, I am constrained to request you to deploy the requisite security forces within the House as well as within the precincts of the Assembly building in terms of the Rule 210 of the Rules ibid to enable me to discharge my Constitutional obligations and lawful mandate in respect of conducting the election of the. Chief Minister under the foregoing legal provisions and directions of the Honourable Supreme Court of Pakistan.
S/d (Sardar Dost Muhammad Mazari)
Deputy Speaker Provincial Assembly of the Punjab Chief Secretary, Punjab Inspector General of Police, Punjab"
7. Learned A.A.Gs. have relied upon following provision of law i.e. Articles 69 and 53 of the Constitution of the Islamic Republic of Pakistan, 1973. "the Constitution" to state that election to the post of Chief Minister are being conducted by Deputy Speaker as Presiding Officer under Article 53(3) of the Constitution and this Court in terms of Article 69 of the Constitution has no jurisdiction to interfere in the proceedings of Assembly, therefore, validity of the order dated 22.07.2022 cannot be called in question at this stage. Needless to mention here that both the parties have been approaching the Courts time and again and raising various issues relating to membership of Punjab Assembly and election of Chief Minister and have been called in question the proceedings of Assembly before the Courts on grounds of law and order situation and other situations of deadlock between members were mention as ground requiring interference by the Courts and as this petition is in continuation of the earlier order passed by Hon'ble Supreme Court of Pakistan and different learned Benches of this Court put of which, some orders are reproduced below; therefore, question about jurisdiction of this Court to interfere in the dispute at this stage has lost its efficacy and cannot be treated as a hindrance to hear and decide the dispute being raised before this Court. During proceedings earlier order dated 12.04.2022 was passed in ICA No. 21710 of 2022 by learned Division Bench of this Court in which relevant Paragraph Nos. 23, 24 & 25 are reproduced below: "23. Since the learned counsel representing Appellants repeatedly referred to unruly incidents in the House, to eliminate their apprehension that it would ,be repeated again the Inspector General of Police, Punjab, Lahore present before the Court, states that all possible measures have been taken for safe and smooth arrival of the members of the Provincial Assembly to the Assembly have been taken whereas the internal security is to be catered for by the Secretary of the.
Provincial Assembly in coordination with the Security Staff He adds that Police is ever ready to deal with any untoward situation for smooth election for the Leader of the House.
24. The Chief Secretary, Govt. of the Punjab, present before the Court, states that all the departments have already, been directed to facilitate the election for the Leader of the House of the Provincial Assembly. In the event of any complaint by any side, rapid action shall be taken against the delinquent(s).
25. As a necessary corollary to the discussion made in the foregoing paragraphs we have no hesitation to hold that Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab has the right to preside over the Session of the House scheduled to be held on 16.04.2022, irrespective of any observation by the learned Judge in Chambers in the Impugned order judgment. Consequently, all these appeals are disposed with the direction to Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab' to abide by his oath and to ensure conduct of elections for the portfolio of the Chief Minister in a fair, transparent and impartial manner, strictly under the Constitution and the Rules, 1997, specifically Second Schedule thereof (Procedure for Recording of Votes in the Case of Chief Minister), without being influenced by any proceedings before this Court. He is further directed to facilitate the National/International Observers, media persons, representatives of PILDAT, FAFEN and other national/international organizations etc. during the election for the portfolio of Chief Minister. No orders as to cost."
8. Even this Court was approached by the parties by filing W.Ps. No. 45028 and 45311 of 2022 in which following order was passed: "3. On the other hand, learned law officer in compliance of order dated 20.07.2022 passed by this Court has placed on the record report/parawise comments on behalf of Inspector General of Police, Punjab Lahore from which it reveals that neither any harassment has been caused nor will be caused to the petitioner or any other member of the .Punjab Assembly. Moreover, no threat has been extended to the petitioner or any other member of the Provincial Assembly by the police.
4. Considering the submissions of the learned counsel for the petitioners as well as learned law officer, these petitions stand disposed of with the direction to the Chief Secretary of Punjab, Lahore and -the Inspector General of Police, Punjab, Lahore (Respondents No. 4 & 6 in W.P. No. 45028 of 2022 and Respondents No. 1 & 2 in W.P. No. 454311 of 2022) to ensure that the members of Provincial Assembly Punjab from both sides may cast their votes safely as per their wishes in the Election of Chief Minister of Punjab, which is scheduled to be held on 22.07.2022. Learned law officer is directed to intimate this order to the above said respondents for compliance."
9. The Rule 20 of Rules of Procedure of Provincial Assembly, 1997 relates to conduct of elections and Rules 210 and 212 relating to proceedings of Assembly which are reproduced below: "20. Election.--(1) Before the commencement of the election, the Speaker shall read out to the Assembly the name or names of the candidates validly nominated in the order in which their nomination papers were received and shall proceed to conduct the election in accordance with the procedure prescribed in the Second Schedule.
(2) If there is only one contesting candidate and he secures the votes of the majority of the total membership of the Assembly, the Speaker shall declare him to have been elected as the Chief Minister; but, in case, he does not secure that majority, all proceedings for the election, including nomination of the candidates, shall commence afresh.
(3) If no candidate secures the votes of the majority of the total membership of the Assembly in the first poll, the Speaker shall conduct a second poll between the candidates who secure the two highest numbers of votes in the first poll and shall declare the candidate who secures the majority of votes of the members present and voting to have been elected as Chief Minister: Provided that if the number of votes secured by two or more candidates securing the highest number of votes is equal, the Speaker shall hold further polls between them until one of them secures the majority of votes of the members present and voting, and shall declare such candidate to have been elected as the Chief Minister.
210. Power to order withdrawal of members or suspend sitting.-- (1) The Speaker shall preserve order and shall have all powers necessary for the purpose of enforcing his orders.
(2) The Speaker may direct any member whose conduct is, in his opinion, grossly disorderly, to withdraw immediately from the Assembly, and any member so ordered to withdraw shall do so forthwith and shall absent himself during the remainder of the sitting.
(3) If any member is ordered to withdraw a second or subsequent time in the same session, the Speaker may direct the member to absent himself from the sittings of the Assembly for any period not exceeding fifteen days and the member so directed shall absent himself accordingly.
(4) The Speaker may, in the case of grave disorder in the Assembly, suspend a sitting for a time to be named by him or adjourn the, Assembly.
(5) The Speaker or, before his election, the outgoing Speaker or, in his absence, the Secretary may appoint a Sergeant-at-Arms and such other officers as he may consider necessary to assist the Sergeant-at-Arms in carrying out the orders of the Speaker.
(6). If a member who has been ordered by the Speaker to withdraw from the Assembly refuses to do so; the Sergeant-at-Arms shall himself or with the assistance of such other officers as are appointed under sub-rule (5) carryout such orders as he may receive from the Speaker.
212. Removal of strangers.-- An officer authorised in this behalf by the Speaker shall remove from the precincts of the Assembly any stranger whom he may see, or who may be reported to him to be in any portion of the precincts of the Assembly reserved for the exclusive use of members, or who having been admitted into any portion of the precincts of the Assembly, misconducts himself or wilfully infringes the directions given by the Speaker under sub-rule (1) of Rule 211 or does not withdraw when directed under sub-rule (2) of rule 211 and may also remove a stranger who had previously misbehaved and apprehension of his doing so again exists."
10. It is claimed by the petitioners that as per sub-rule (5) of Rule 210 Speaker/Presiding Officer can seek assistance of Sergeant at Arms and cannot directly invoke the jurisdiction to summon the police to enter into the Assembly premises on the basis of surmises and conjectures as according to learned counsel for the petitioner impugned notice dated 22.07.2022, it is stated that proceedings for election have commenced and law and order situation has arisen which is the reason requiring summoning of police to prevent the threat of life of Deputy Speaker and members of assembly as well as its staff whereas this Court is hearing the petition at 02:00 p.m. and election process has not yet been commenced, therefore, impugned order according to them has been issued with predetermined mind to interfere in process of election which they state amounts to rigging the election process with mala fide intention.
11. Both the learned A.A.Gs. have referred to previous election of Chief Minister, Punjab held on 16.04.2022 wherein law and order situation had arisen requiring interference of police in that scenario, they claim that impugned order has been passed with bona fide intention just to prevent any untoward incident from happening in the election to be conducted today. Provision of Rule 210(5) authorizes the Speaker/Presiding Officer to be assisted by the Sergeant at Arms in conducting of proceedings of Assembly as the Assembly has its own internal security system and the said sub-Rule further authorizes the concerned authority to seek help of any other authority to assist the Sergeant at Arms in carrying out the orders of the Speaker for the purpose of maintaining the law and order situation and Rule 212 thereof authorizes the authority to remove any stranger who misconducts himself in the Assembly or infringes the directions of the Speaker. However, as police could not be called directly in place of internal security/Sergeant at Arms without any law and order situation under the said Rule, there is great apprehension in the minds of the petitioners that said rule has been misinterpreted and has been misused by misinterpreting the judgments passed by Hon'ble Supreme Court of Pakistan as well as this Court and they apprehend that the election shall not be conducted in a fair manner, therefore, they have prayed that police should not be allowed to enter in the premises unless there is law and order situation. In this case, on the one hand, one party seeks to avoid an untoward situation from arising and the other party apprehends that said measure, has been taken to conduct the election in an unfair manner.
12. In view thereof, in the interest of justice, these petitions are disposed of with directions that:--
(i) proceedings of Assembly for election of Chief Minister are to be conducted in terms of the orders passed by the Hon'ble Supreme Court and other directions issued by this Court through various orders which are consistent with orders of the Hon'ble Supreme Court;
(ii) the internal security of the Punjab Assembly and Sergeant at Arms shall remain within the premises of the Assembly and shall make effort that no law and order situation shall arise;
(iii) the police authority shall not enter the Assembly premises and shall remain outside the premises of Assembly and shall ensure that no member is prevented from entering the Assembly premises for participating in the election process;
(iv) internal security of the Assembly shall be responsible for the security during the proceedings of Assembly for conducting of election and shall ensure that same is not disturbed by any person.
This arrangement shall continue during whole process of election unless law and order situation arises whereby it is deemed appropriate by the Presiding Officer and Assembly Authorities to require help of the police to resolve the same and in the said case, their help may be requisitioned to control the situation, however, the said help shall not be called unnecessarily so that the apprehension in the mind of any member that election is not being conducted in a fair manner, is avoided.
13. As it is claimed that both the Secretary of the Assembly and Amir Habib, Assistant. Secretary, have been suspended and the dispute relating to their suspension cannot be decided in such short time, hence, it is directed that the whole staff of the Assembly shall be bound to perform their duties and assist the conduct of election in terms of Rules of Procedure of Provincial Assembly, 1997 and orders passed by Hon'ble Supreme Court of Pakistan which shall be implemented in letter and spirit.
14. As these petitions have been decided and there is a very short span of time between oral announcement of this order and conduct of election at 4:00 p.m. and order may not reach the Assembly in time, the learned counsel for the parties, especially the learned Law Officers are directed to convey this order to the concerned authorities for information and compliance.