With permission of the Court, learned counsel for the Petitioner Senator Barrister Ali Zafar, ASC has impleaded Election Commission of Pakistan, Constitutional Avenue, Islamabad as the Respondent No.2.
2. Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), Pakistan Tehreek-e-Insaaf (the "PTI") through its Secretary General Asad Umar has sought directions to the Respondents to announce the date of election of the Provincial Assembly of Punjab within ninety (90) days of its dissolution effected on 14.01.2023.
3. Senator Barrister Ali Zafar, ASC states that the Petitioner is seeking interpretation of certain important articles of the "Constitution" specifically Articles 105 read with 112(1), 224(1), 224(1A), 224(2) and the preamble of the "Constitution". He pointed out that the then Chief Minister, Punjab Chaudhry Pervaiz Elahi on 12.01.2023, referred the matter to the Governor of Punjab/Respondent No.1 (the "Governor") to dissolve the Provincial Assembly, Punjab and in terms of Article 112(1) of the "Constitution", it stood dissolved after forty-eight hours on 14.01.2023 at 22:10 hours and this fact was further ratified and acknowledged by the "Governor" on 14.01.2023 while declaring that the Provincial Assembly of the Punjab and the Cabinet stand dissolved under Article 112(1) of the "Constitution" and he will remain available for the discharge of constitutional duties. He has referred to letter dated 20.01.2023 whereby the incumbent Speaker of the Punjab Assembly Muhammad Sibtain Khan has specifically requested the "Governor" to appoint a date for holding of general election of the Provincial Assembly Punjab to fulfill his constitutional obligation but unfortunately this has not been acted upon so far. Senator Barrister Ali Zafar, ASC has further pointed out that on 24.01.2023, the Election Commission of Pakistan (the "ECP") has also sent a letter to Principal Secretary to the "Governor" to give date of election of the Provincial Assembly Punjab as per Article 224 of the "Constitution" read with Section 57(2) of the Elections Act, 2017 (the "Act") alongwith its Rules but without any progress.
4. When confronted, as prayer made in this petition relates to directions to the Respondents to invoke Article 105(3) of the "Constitution" which mandates the Governor to dissolve the Provincial Assembly and appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly because the Court emphasis the learned counsel that the "Governor" did not dissolve the assembly rather it was dissolved on the advise of the Chief Minister Punjab, and later on the "Governor" on 14.01.2023 (Annex-A1, page 9 of this petition) declared that Provincial Assembly of the Punjab and the Cabinet stand dissolved under Article 112(1) of the Constitution w.e.f. 14.01.2023 at 2210 hours, Senator Barrister Ali Zafar, ASC stated that Article 105(3) should be read with Article 105(1) and Article 112 of the "Constitution".
5. Further confronted whether Article 112 of the "Constitution" is applicable as it has two parts viz (i)
Governor to dissolve; (ii) stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised. In response, Senator Barrister Ali Zafar, ASC stated that this Article should also be read with Article 224(2) of the "Constitution" which mentions that on dissolution of the Assembly under Article 112, a general election to the Assembly shall be held within a period of ninety days after the dissolution, hence this petition is maintainable.
6. At this point, Senator Barrister Ali Zafar, ASC put much emphasis on the preamble of the "Constitution" by relying on judgment of this Court in "JAMSHED IQBAL CHEEMA Versus THE ELECTION APPELLATE TRIBUNAL and 19 others" (2022 CLC 463) wherein it has been held that "the preamble to a statute is though not an operational part of the enactment but it is a gateway, which opens before us the purpose and intent of the legislature, which necessitated the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law". He stated that the preamble of the "Constitution" has to be read with Article 105, 112 and 224 of the "Constitution" for holding election within ninety days.
7. Mr. Asad Umar, when confronted, highlighted the of right of democracy and 'Political Justice' by referring judgment of this Court rendered in the case of "HAFEEZ UR REHMAN CH Versus FEDERATION OF PAKISTAN etc" (2022 MLD 2006) whereby the Court relying on the judgment of Full Bench of the Supreme Court of India in the famous case reported as Kesavananda versus State of Kerala (AIR 1973 Supreme Court 1461) has held that the basic structure and frame work of the Constitution cannot be altered as it was made by the chosen representatives of the country.
8. Points raised need consideration. Admit. Notice to the Respondents for 03.02.2023 to file written statement. Mr. Nasir Javed Ghuman, Deputy Attorney General and Rana Zain, Assistant Advocate General present in Court shall convey this order to concerned quarter and seek instructions therefrom.
9. It is observed that directions sought for by the Petitioner to the Respondents is with regard to announcement of the date of election either by the "Governor" or the "ECP" and it is evident that the "ECP" has categorically sent letter to the "Governor" to announce the date under Article 224(2) of the "Constitution" read with Section 57(2) of the "Act" but this power has not been exercised therefore, in order to proceed further in this case, this Court will examine the preamble of the "Constitution" in the light of judgments passed in the case of JAMSHED IQBAL CHEEMA Supra which was further elaborated in the case of HAFEEZ UR REHMAN CH Supra and will also interpret Part-IV, Chapters 1&2 read with Articles 105, 112, Part-VII Articles 224, 218, 219 and 5 of the "Constitution" because period of holding elections is provided as ninety days in the "Constitution" which read with preamble guarantees the fundamental rights including 'Political Justice'.
10. Since the case relates to interpretation of Articles of the "Constitution" and certain provisions of the "Act" involving infringement of fundamental rights of the Petitioner as per Article 17, 4 and 5 of the "Constitution" including 'Political Justice' therefore, a separate notice be also issued to the learned Attorney General for Pakistan as well as learned Advocate General Punjab in terms of Order XXVII-A of the Code of Civil Procedure (V of 1908).
C.M.No.01 of 2023
11. Dispensation sought for is allowed subject to all just and legal exceptions. C.M. stands disposed of.