Shazia Tehmas Khan etc vs Federation of Pakistan and others

S.M. ATTIQUE SHAH, J.-Through this single judgment, we propose to decide the present Writ Petition No.1617-P/2024, titled Shazia Tamash etc. vs. Speaker Provincial Assembly etc. and the connected Writ Petitions No.1622-P/2024, titled Mehr Sultana etc. vs. Election Commission of Pakistan etc. & No.1625-P/2024, titled Aiman Jalil etc. vs. Speaker Provincial Assembly etc. as common questions of law and facts are involved in all these petitions, wherein the petitioners being returned candidates on reserved seats for women and non-Muslims in Provincial Assembly of Khyber Pakhtunkhwa have asked for issuance of an appropriate writ directing the worthy Speaker Provincial Assembly to administer oath to them well before the forthcoming Senate Election, which is scheduled for 2nd April, 2024, so as to enable them to participate and cast their votes therein.

2. Brief history of the case is that after being declared the intra-party election of the Pakistan Tehreek-e-Insaf (PTI) as illegal by the worthy Election Commission of Pakistan (ECP), its candidates contested the General Elections, 2024 as independent candidates on 08.02.2024 against the general seats of the National and Provincial Assemblies and accordingly, they were notified as independent candidates by the ECP vide Notification dated 16.02.2024. In terms of Article 51 read with Article 106 of the Constitution, an independent returned candidate has to join any political party within three days of the issuance of notification, that is how, all the returned / PTI-backed candidates joined the Sunni Ittehad Council "SIC" in the National as well as Provincial Assemblies, whereafter, the "SIC" approached the worthy ECP through an application for allocation of reserved seats in all the Assemblies, which was treated as a case bearing No.F(14)12024-Law-II and accordingly was decided with identical applications by the worthy ECP vide order dated 01.03.2024 while rejecting the claim of SIC for allocation of reserved seats. Pursuant thereto, the names of the petitioners were duly notified as returned candidates for the seats reserved for women and non- Muslims vide notifications dated 04.03.2024, 20.03.2024 and 22.03.2024 respectively. Being aggrieved from the ibid decision of the worthy ECP, the "SIC" challenged the same before this court through Writ Petitions No.1272-P and No.1339-P of 2024, which were dismissed by the Larger Bench vide judgment dated 14.03.2024. Due to reluctance of the worthy Speaker to administer oath to the petitioners, the worthy Governor Khyber Pakhtunkhwa spurred into action and vide order dated 20.03.2024 summoned the Provincial Assembly to meet on 22.03.2024 at 03:00 p.m., in the Assembly Building of the Provincial Assembly of the Khyber Pakhtunkhwa, for administering Oath to the Members, who were elected against reserved seats.

Being aggrieved, purportedly from non-compliance thereof by the worthy Speaker, the petitioners are before this court with their grievance.

Submissions of learned counsel for the petitioners

3. M/s. Amir Javed, Barrister Saqib Raza, Muhammad Tariq Afridi and; Muhammad Farooq Afridi, Advocates representing the petitioners contended that once the petitioners have been duly notified as returned candidates for the seats reserved for women and non-Muslims, the speaker is duty bound to administer them oath under Article 65 of the Constitution being their constitutional right. Rather the worthy Speaker, they added, has totally misconstrued the ibid provision of law in its true perspective as there is no need of requisitioning full-fledged session of the assembly for administering oath to its members because term "House" mentioned therein does not denote session in any manner. Next argued that by virtue of Article 109 of the Constitution, it is the discretion of the worthy Governor to summon or prorogue the Provincial Assembly, which powers have rightly been exercised by him on 20.03.2024. Lastly, they asked for the issuance of directions to the worthy Speaker to administer oath to the petitioners as members of the Provincial Assembly being their constitutional right enabling them to participate and cast their votes in the forthcoming Senate Election notwithstanding they have already been deprived of such right in the presidential election. Placed reliance on the judgments reported in the cases of Chaudhry Pervez Elahi vs. Deputy Speaker, Provincial Assembly of Punjab (PLD 2022 SC 678); Pakistan Peoples Party Parliamentarian (PPPP) through its Secretary General etc. vs. Federation of Pakistan through, Ministry of Law etc (PLD 2022 SC 574); Pakistan Muslim League vs. Sardar Dost Muhammad Mazari etc. (PLD 2022 Lah 469); Muhammad Hamza Shahbaz Sharif vs. Federation of Pakistan etc. (PLD 2022 Lah 504); Muhammad Hamza Shahbaz Sharif vs. Federation of Pakistan throu2h Secretary, Ministry of Law & Justice etc. (PLD 2023 Lah 105); Muhammad Irshad vs. Government of Khyber Pakhtunkhwa through Local Government etc. (PLD 2016 Peshawar 170).

Mr. Sana Ullah, the worthy Deputy Attorney General while relying and supporting such contentions has submitted that the phrase "House" does not signify session of the Assembly, rather, the same denotes towards the premises of the Provincial Assembly in terms of Article 65 of the Constitution and nothing more, and the reluctance of the worthy Speaker to administer oath to the petitioners is beyond comprehension in the given circumstances, as he is duty bound under the law to administer oath to an elected member immediately when his membership is notified by the Commission. He also supported the contention of the petitioners qua requisition of the session of the Assembly by the worthy Governor being in line with the provision of Article 109 of the Constitution.

Submissions of learned Advocate General and Learned counsel for the worthy Speaker

4. M/s Shah Faisal Utmankhel, the worthy Advocate General, Khyber Pakhtunkhwa, Muhammad Bashar Naveed and Rehmat Ali Khan, the learned AAGs representing the Provincial Government assisted by Mr. Ali Azim Afridi, Advocate representing the worthy Speaker, Provincial Assembly, vehemently argued that in terms of Article 105 of the Constitution, the worthy Governor is duty bound to act on the advice of the Cabinet, or the Chief Minster and even for summoning session of the Provincial Assembly, the same procedure will be adopted, as such, he cannot go beyond it of his own and that too without fulfillment of the legal requirements as envisaged under Article 54(2) & (3) of the Constitution. The worthy Governor only on two occasions, they emphasized, would be competent to call for session, firstly, after the general elections when the government has not yet been formed and; secondly when no confidence motion is moved against the Chief Minister, otherwise not, which is not the case here, as such, he has overstretched his authority, so vested in him which is against the mandate of the Constitution. They further emphasized that as per Schedule-V of Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985, even case of summoning and prorogation of Assembly, is to be routed to the worthy Governor through the worthy Chief Minister. Next argued that after the General Elections, 2024, first session had already been held on 28.02.2024, as such till completion of 120 days as per law, another session cannot be summoned until and unless fulfillment of mandatory provisions of Clause (2) of Article 54 read with Clause (2) of Article 130 of the Constitution. Further maintained that the petitioners, who have never been denied oath, would make oath in the next session as and when session is convened in accordance with law by the worthy Chief Minister. Further argued, that such sort of interference of the worthy Governor itself would redundant the entire scheme of parliamentary democracy notwithstanding the same having no legal backing at all, hence, such directions are not binding upon the worthy Speaker. Placed reliance on the judgments reported in the cases of Mian Muhammad Nawaz Sharif vs. President of Pakistan etc. (PLD 1993 SC 473); Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate etc. vs. Federation of Pakistan etc. (PLD 1997 SC 84); Watan Party etc. vs. Federation of Pakistan etc. (PLD 2011 SC 997); Messrs Mustafa Impex, Karachi vs. Government of Pakistan through Secretary Finance (PLD 2016 SC 808) and a judgment of the India jurisdiction reported in Writ Petition (Civil) No.1224 of 2003, titled State of Punjab vs. Principal Secretary to the Governor of Punjab etc., decided on 10.11.2023.

5. Heard. Record perused.

6. From the aforesaid legal discourse, the following questions cropped up for determination of this Court. a) Whether the administration of oath to the petitioners before the House can be withheld for an indefinite period after being notified as returned candidates? b) Whether the inaction of the worthy Chief Minister and the worthy Speaker to take material steps for administering oath to the petitioners can be justified? c) Whether any time frame for administrating oath to the returned candidates against seats reserved for women and non-Muslims has been provided by the Constitution and Elections Act, 2017 and rules framed thereunder? d) Whether oath can be administered to the petitioners at the place other than the House in absence of any session? e) Whether summoning of the session of the Provincial Assembly is the discretion of the worthy Governor in terms of Article 109 of the Constitution which can be exercised by him independently or it is subject to the advice of the Cabinet or the Chief Minister in terms of Article 105 of the Constitution read with Schedule-V of Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985.?

7. Our Constitution is based upon the principle of trichotomy of powers i.e. Legislature, Executive and; Judiciary. Each of them has its separately defined functions. The Legislature is assigned the role to legislate laws. Likewise, the Executive to execute laws and; similarly the Judiciary to interpret the laws. This trichotomy of power is so essential and important that it is said to be a basic feature of the Constitution. Upon entering office, the notified members of the Legislature, Executive and superior judiciary take mandatory oath of their respective offices as prescribed by Articles 65 & 255 read with third schedule of the Constitution which shall be administered to them by the nominated persons. The purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of the nation.

It is settled that oath is to ALLAH ALMIGHTY and surely not to the person who is administering such oath, rather the person who discharges such obligation only performs an administerial obligation required by the Constitution, therefore, when such person is incapable or is not willing to administer oath or when it is impracticable for him by any reason or he is avoiding to discharge such responsibility, then, surely he would be transgressing the Constitutional mandate bestowed upon him.

8. In the context of the members of Assemblies, usually, the first sitting of a newly elected House is dedicated to oath taking by members and election of the Speaker. Members first make oath as prescribed by the above referred provisions of the Constitution and then sign the Roll of Members in terms of Rule 6 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988. Before a member takes his seat in the House, he must take and subscribe an oath or affirmation in the prescribed form, without doing so, he cannot act in any manner as a member of the Assembly. Having said the above, we would now proceed to answer the above formulated questions.

9. As the contesting parties have assisted this court by expressing their opinion regarding the interpretation of various Articles of the Constitution in support of their respective contentious submissions, therefore, in order to arrive at a correct interpretation of such provisions we deem it appropriate to refer to the principles of interpretation of Constitution expounded by the apex court.

As of now, it is well-settled that the Constitution must be read organically and holistically. While interpreting its various Articles and Clauses, the rule of Organic Construction is to be applied.

Individual Articles and Clauses cannot be read and interpreted in isolation from the rest of the Constitution. The meaning of the Constitution is to be gathered from the Constitution as an integrated whole. The rule of Organic Construction and being a living document was discussed by the Apex Court in the case of Munir Hussain Bhatti^[1] the following manner:-

21. We have been guided by precedent to follow the rule that individual Articles or clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the reader. This is so because the meaning of the Constitution is to be gathered from the Constitution as an integrated whole, based on reason. The logic and wisdom of this approach should be self evident, but can be highlighted for the edification of those inclined to a contrary view focused solely on an insular reading of Article 175A. This can be done by narrating a simple tale from the enlightened tradition of our sages. In his Masnavi Maulana Jalaluddin Rumi recounts the story of five men on a dark night who, groping and touching different parts of an elephant's anatomy, construct an image of the animal variously as a fan (by the one who managed to touch only its ears), a tree trunk (by the other getting a feel of its leg), a gargoyle (by yet another who touched and felt its snout) and so forth. The inability of each man to look at the elephant holistically is obvious. As the Maulana says, these men in the dark did not have a lamp to show them that the elephant was one composite organism, whose constituent components were to be seen together if the whole was to be understood, without errors of perception. The Greek ancient, Hippocrates (quoted by Eduardo Galeano in his book "Mirrors"), in the same vein, said that "the nature of the parts of the body cannot be understood without grasping the nature of the organism as a whole". It is, therefore, crucial for us, consistent with reason, to look at the Constitution as a whole if we are to make sense of Article 175A 'organically'. Looking at the Constitution any other way would lead the reader astray.

22. The rationale for this rule is also universal and transcends the divide between the various prevalent systems of law. Thus it is that we have common law constitutionalists such as Laurence Tribe and Michael Dorf warning us against "approaching the Constitution in ways that ignore the salient fact that its parts are linked into a whole that it is a Constitution, and not merely an unconnected bunch of separate clauses and provisions with separate histories that must be interpreted. "(Tribe, Lawrence H.; Dorf Micheal C.,"Chapter 1: how not to read the Constitution" on reading the Constitution, Harvard University Press, Cambridge, 1991). This very same logic also informs the comment of a scholar like Dr. Conrad from the European Civil Law tradition, who reminds judges and lawyers "that there is nothing like safe explicit words isolated from a general background of understanding and language. This is particularly so in the interpretation of organic instruments like a Constitution where every provision has to be related to the systemic plan, because every grant and every power conferred is but a contribution to the functioning of an integrated machinery... it will not do to discuss such concepts as [mere] 'political theory' irrelevant to textual construction ". ("Limitation of Amendment Procedures and the Constituent Power; " the Indian Yearbook of International Affairs, 1967. P.3 75)

23. Undeniably, Article 175A fits into, and has to be read as part of the larger Constitutional scheme and not as an insular "bunch of separate clauses and provisions", or as a self-contained island within the Constitution, unconnected with its other parts. The importance of reading the Constitution as an organic whole, in the context of these petitions, will become more apparent in the succeeding sections of this opinion.

10. The august Apex Court in case of District Bar Association Rawalpindi's^[2] had also thoroughly examined and discussed the principles of interpretation and recommended the following guidelines for interpretation of the Constitution:

(a) The Constitution should be read as a whole.

(b) Effect should be given to every word, paragraph, clause and article of the Constitution and redundancy should not be imported thereto.

(c) If there are two provisions of the Constitution attending to similar matters, the particular provision excludes the general provision.

(d) If there is a conflict between two provisions of the Constitution and one of them was inserted when the Constitution was abrogated, subverted, suspended or held in abeyance then the conflicting provision which was in the Constitution prior to the said abrogation, subversion, suspension or abeyance is to be preferred if it is closer to the provisions of the Preamble.

(e) Parliamentarians, who adorn the House after the promulgation of the 1973 Constitution or will do so in the future, do not have the constituent powers of the first parliamentarians, therefore, they cannot amend the Constitution in a manner that contravenes the provisions of the Preamble to the Constitution, and in particular any amendment that may abolish, take away or abridge any of the fundamental rights of the people.

(f) The Constitution and its Preamble are built on a trichotomy that separates powers between the Legislature, the Executive and the Judiciary, and each one must operate within its respective domain. Thus, whilst the Legislature is fully empowered to make laws or amend the Constitution it is the superior Courts that will ascertain their constitutionality and interpret them because the Constitution itself has empowered them.

11. Admittedly, the petitioners are duly notified returned candidates against the seats reserved for women and non-Muslims. Until and unless the petitioners make oath of their offices as prescribed by Article 65 of the Constitution which shall be administered by the worthy Speaker before the house or any other person duly nominated by him in terms of Article 255 thereof, neither they can sit in the house, nor can they participate in the proceedings of the Assembly in any manner. For ease of reference, both Articles are reproduced below:-

65. A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule.

255.(1) An oath required to be made by a person under the Constitution shall [preferably be made in Urdu or] a language that is understood by that person.

(2) Where, under the Constitution, an oath is required to be made before a specified person and, for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by that person.

(3) Where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath.

12. Rule 6 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 also deals with the Oath and signing of Roll of Members which reads as under:

6. Oath and Roll of Member.--A Member shall not sit or vote in the Assembly unit he has made before the Assembly an oath as required by the Constitution, and he shall also sign the Roll of Members.

13. The term 'House' used in Article 65 of the Constitution has been defined in Article 63-A(7)(a) & 260 of the Constitution, which reads as follows:- 63-A(7)(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."

260. "House" means the Senate or the National Assembly.

14. Now, the arguable question before the Court is the interpretation of the ibid Articles and Rule 6 of the Oath and singing of Roll of Members. Employing the above referred interpretive guideline(s) to the ibid Articles of the Constitution and; rules, effect should be given to every word, paragraph, clause, and Article of the Constitution, and redundancy should not be imported thereto. The bare reading of the ibid provisions imparts that a Member shall not sit or vote in the Assembly until he has made before the Assembly an oath as required by the Constitution and signed the Roll of Members. Upon reading Articles 65 & 255 in juxtaposition with Articles 63-A(7)(a) & 260 and thoroughly examining the above referred provisions, we understand that the language of the ibid provisions is clear enough, as such it does not require any outside or extrinsic aid to determine their meaning. It is a well recognized and accepted principle of construction of statutory and Constitutional law that in case the language is clear, no outside or extrinsic aid can be applied and; brought to determine its meaning. Durrani Ceramics^[3]. In the given situation, we have no hesitation in determining that administering oath to the newly elected members is not only mandatory but the same must be before the house i.e. before the concerned Assembly, as the case may be. To be precise, administering oath before the house and signing the roll of members are sine qua non for an elected member to sit in the house and; participate in the assembly proceedings therein including the casting of votes in the Presidential and; Senate elections which is his vested and; fundamental right, otherwise, he has no authority at all to sit or perform any of the aforementioned acts.

15. Granted, that the Constitution and the Elections Act, 2017 and rules framed thereunder and; Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 have stipulated no specific period of administering oath to the members of the Parliament, however, it does not mean that either the same can be denied to them or delayed in any manner. Section 98 of the Act, 2017 prescribes fourteen days period for publication of the names of elected candidates in the official Gazette. While Article 130(2) stipulates that Provincial Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor. The ibid provisions clearly denote the intention of the framers of the Constitution regarding swift and early completion of the post-election process which obviously starts from meeting of the Assembly. Certainly, the first obligation upon meeting of the House is to administer oath to the elected members as without oath neither a member can sit in the house, nor can he participate in any of its proceedings. In the given circumstances, it can easily be inferred from the provisions of Articles 65, 255 & 130(2) that the oath is to be administered within twenty-one days of the notification of the returned candidates before the house. Any delay or denial to administer oath to an elected member beyond this period would be a serious infringement of his fundamental rights, besides, negation of such rights to the constituency who has elected such person, resulting into non-representation of the whole constituency in the Assembly which is against the very concept of parliamentary democracy, as the voters upon electing their representatives invested them with all the Legislative and Constitutional powers to be exercised by such representatives. The principle of parliamentary democracy as embedded in the constitution runs through the Constitution like a red thread and writ large in all provisions dealing with the form of government. The very preamble of the Constitution enjoins the formation of this constitutional order upon will of the people and sovereignty is a sacred trust, and authority is to be exercised by people through its chosen representatives of the people. Under the Constitutional scheme, the people, while electing their representatives, invested such representatives with all the legislative and constitutional powers to be exercised on their behalf and did not reserve right to be consulted before exercise of such powers, irrespective of the gravity of the issue involved. Such investment and delegation of authority by the people in favour of their elected representatives was clearly borne out from the preamble of the constitution itself After electing their representatives, the people have exercised their sovereignty and for the ensuing terms of parliament. District Bar Association Rawalpindi (Supra).

16. It is evident from the record that though the petitioners were notified as returned candidates on 04.03.2024, 20.03.2024 and 22.03.2024 respectively, but, they could not be administered oath as the provincial assembly was not in session. That is how, the matter was reported to the worthy Governor, Khyber Pakhtunkhwa, who took cognizance of the same and on 20.03.2024 while exercising powers conferred by clause (a) of Article 109 of the Constitution passed order for summoning the Provincial Assembly to meet on 22.03.2024 at 3.00 P.M. in the Assembly Building of the Provincial Government for taking oath of its members elected on reserved seats for women and non-Muslims.

17. Before moving towards the core issue regarding requisitioning of the Assembly Session, we deem it appropriate and necessary to discuss the Constitutional Order enshrined in the Constitution which is the bedrock of the Constitutional framework. Workers' Party Pakistan.^[4] This constitutional Order declares that "the authority (is) to be exercised by the people of Pakistan". The vesting of this authority and entrusting the exercise thereof to the people, emphasizes the principle of self-government as the bedrock of our constitutional framework By guaranteeing the observance of principles of democracy' in Pakistan and mandating that the "State shall exercise its powers and authority through the chosen representatives of the people" the Constitution instructs that this authority be exercised by and through a representative and democratic government. This constitutional order was framed with an ardent dedication 'to the preservation of democracy' and therefore encapsulates it as one of its core values. Furthermore, by establishing and enumerating the powers and manner in which the legislature is to function, Parts II and III of the Constitution cement 'democracy' as the chosen system of the people and a fundamental constitutional dictate. Therefore, it is patently clear that the constitutional imperative of 'advancing and protecting Fundamental Rights, as enunciated by Islam, through a democratic system of government' underpins the operation of our constitutional Order. This symbiotic relationship between 'democracy' as a governing system and the objective of 'advancing and protecting Fundamental Rights, as enunciated by Islam' preserves and reinforces both these constitutional dictates as cardinal features of our Constitution. Various provisions of the Constitution have been drafted to effectuate this imperative. The freedom of association, as enunciated by Article 17 of the Constitution, confers a Fundamental right on every individual to partake in the political governance of the State, whilst concurrently reinforcing the constitutional mandate to protect and advance this right through a democratic State. Furthermore, the freedom of assembly' (Article 16) and freedom of speech' (Article 19) also serve to realize this constitutional imperative.

18. Articles 109, 130 (2), 54 read with Article 127 of the Constitution deals with the summoning of the Assembly, are reproduced herein below for ease of reference:-109. The Governor may from time to time--

(a) summon the Provincial Assembly to meet at such time and place as he thinks fit; and

(b) prorogue the Provincial Assembly.

130. (2). The Provincial Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor.

54. (1) The President may, from time to time, summon either House or both Houses or [Majlis-e- Shoora (Parliament)] in joint sitting to meet at such time and place as he thinks fit and may also prorogue the same.

(2) There shall be at least [three] sessions of the National Assembly every year, and not more than one hundred and twenty days shall intervene between the last sitting of the Assembly in one session and the date appointed for its first sitting in the next session: Provided that the National Assembly shall meet for not less than one hundred and [thirty] working days in each year.

[Explanation.- In this clause, "working days" includes any day on which there is a joint sitting and any period, not exceeding two days, for which the National Assembly is adjourned].

(3) On a requisition signed by not less than one-fourth of the total membership of the National Assembly, the Speaker shall summon the National Assembly to meet, at such time and place as he thinks fit, within fourteen days of the receipt of the requisition; and when the Speaker has summoned the Assembly only he may prorogue it.

127. 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 or a committee or members thereof or the Provincial Government but so that--

(a) any reference in those provisions to [Majlis-e-Shoora (Parliament)], a House or the National Assembly shall be read as a reference to the Provincial Assembly ;

(b) any reference in those provisions to the President shall be read as a reference to the Governor of the Province;

(c) any reference in those provisions to the Federal Government shall be read as a reference to the Provincial Government ;

(d) any reference in those provisions to the Prime Minister shall be read as a reference to the Chief Minister ;

(e) any reference in those provisions to a Federal Minister shall be read as a reference to a Provincial Minister;

(f) any reference in those provisions to the National Assembly of Pakistan shall be read as a reference to the Provincial Assembly in existence immediately before the commencing day [; and] [(g) the said clause (2) of Article 54 shall have effect as if in the proviso thereto, for the words "one hundred and thirty" the word [one hundred] were substituted.]

19. Above referred provisions of the Constitution provide proper procedure and; mechanism qua summoning and proroguing the Provincial Assembly / session in the following manners: Firstly, by the worthy Governor under Article 130 of the Constitution, which envisages that the Provincial Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the him; Secondly, by the worthy Governor on the advice of the worthy Chief Minister as prescribed by Article 109 read with Article 105 of the Constitution and Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985, framed under Article 139 of the Constitution and; Thirdly, by the worthy Speaker in the manner as provided under Article 54(3) of the Constitution.

The worthy Governor can only exercise the said power in terms of Article 130(2) of the Constitution, when no government is formed at the relevant time whereas the said discretion in terms of Article 109 of the Constitution can only be exercised when he received the advice of the worthy Chief Minster in terms of Article 105 of the Constitution read with Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985.

20. Indeed, we have Parliamentary democracy and Parliamentary form of government where the Chief Minister forms government and runs its affairs with the aid of his cabinet, however, the cabinet is collectively responsible to the Provincial Assembly as prescribed by Article 130(6). While the Governor acts upon the advice of the government in terms of Article 105 of the Constitution which prescribes that the worthy Governor would perform his functions on the advice of the Cabinet or the Chief Minister, which reads as under: 105.(1) Subject to Constitution, in the performance of his functions, the Governor shall act [on and] in accordance with the advice of the Cabinet [or the Chief Minister] [Provided that [within fifteen days] the Governor may require the Cabinet or, as the case may be, the Chief Minister to reconsider such advice, whether generally or otherwise, and the Governor shall [within ten days,] act in accordance with the advice tendered after such reconsideration.] * * * * * * *

(2) The question whether any, and if so what, advice was tendered to the Governor by the Chief Minister [or the Cabinet] shall not be inquired into in, or by, any court, tribunal or other authority.

[(3) Where the Governor dissolves the Provincial Assembly, notwithstanding anything contained in clause (1), he shall,--

(a) appoint a date, not later than ninety days from the date of dissolution, for the holding of a general election to the Assembly; and

(a) appoint a care-taker Cabinet.] **

(5) The provisions of clause [(2)] of Article 48 shall have effect in relation to a Governor as if reference therein to "President" were reference to "Governor".]

21. The ibid provision of law clearly envisages that after formation of the Government, the worthy Governor is to act on the advice of Cabinet or the Chief Minister. When Article 105 of the Constitution is read with Schedule-V of Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985, framed under Article 139 of the Constitution, it becomes obligatory upon the worthy Governor to convene and prorogue the session of the Assembly upon the advice of the worthy Chief Minister except under Article 130(2) of the Constitution. But, at the same time the worthy Chief Minister is bound to give effect to the constitutional mandate to take all material steps for summoning of Assembly so that the newly elected members make oath of their offices in accordance with the letter of the Constitution. Obviously, a constituency; may it be reserved seats, cannot be left unrepresented for a longer period being essential feature of Parliamentary democracy. Article 224(4) of the Constitution stipulates that when a seat has become vacant, not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill such seat shall be held within sixty days from the occurrence of such vacancy.

Likewise, when a seat in the senate has become vacant, an election to fill the seat shall be held within thirty days from the occurrence of the vacancy. Similarly, when a seat reserved for women or non-Muslim in National or Provincial Assembly falls vacant, it shall be filled by the next person in order of precedence from the party list of the candidates of the respective political party whose member has vacated such seat. Even after exhaustion of the party list the concerned political party may submit a name for any vacancy which may occur thereafter. The above discussion explicitly demonstrates the intention of the framers of the Constitution that the House must be kept complete in all circumstances except in the condition prescribed by Article 224(4) of the Constitution.

22. We understand that after being notified as returned candidates by the Commission, a legal right has been accrued in favour of the petitioners to be administered oath in accordance with the provisions of Articles 65, 255, 54(1) & 130(2) of the Constitution read with Rule 6 of the ibid Rules, 1988 & Rule 36(a) and schedule V of the Khyber Pakhtunkhwa Government Rules of Business, 1985.

Surely, by not extending such opportunity to them, their accrued vested and; fundamental rights have been infringed, which are guaranteed by Articles 4, 5, 8, 17, 25 & 34 of the Constitution.

23. The General Elections, 2024 were held on 8th February, 2024, whereafter, the first session of the provincial assembly was held on 28th February, 2024 as prescribed in Clause (2) of Article 130 of the Constitution, where the members of the provincial assembly were administered oath and signed the roll of members in terms of Rule 6 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988. Since the petitioners were notified as returned candidates for the seats reserved for women and non-Muslims on 04.03.2024, 20.03.2024 and 22.03.2024 respectively, much after the first session of the Provincial Assembly, therefore, they could not participate therein as at that time, they were not notified members of the assembly and now after being duly notified they cannot be deprived of administering oath and signing the roll of members as well for an indefinite period in view of accrued fundamental and; Constitutional rights.

Being returned candidates, it is the right of the petitioners to be given oath in accordance with the ibid provisions of law to enable them to participate in the proceedings of the Assembly and also to cast their votes freely and independently in the upcoming election of Senate. We have before us the Notifications dated 04.03.2024, 20.03.2022 & 22.03.2024 of the petitioners issued by the Commission and copies thereof were also endorsed to the Secretary, Provincial Assembly, Khyber Pakhtunkhwa/Respondent No.3. We believe that after receipt of ibid Notifications, the worthy Secretary was obliged under the law to have informed the worthy Chief Minister for requisitioning the session of the Assembly to administer oath to the petitioners accordingly, however, he failed to discharge his obligations for the reasons best known to him and; thus violated the mandate of the Constitution. The Commission has also issued the list of Voters for the upcoming elections of Senate, which reflects the names of petitioners, and if they are not administered oath, they would not be able to participate and cast their votes in the senate election.

24. The election of the Senate is held in accordance with the system of proportional representation by means of a single transferable vote by the members of each Provincial Assembly in terms of Article 59 of the Constitution which means that members of the Provincial Assembly constitutes constituency for such election and if the petitioners are not administered oath, then, the very constituency shall remain incomplete which would be negation of the Constitutional mandate. The non-administration of oath to the petitioners would also amount to preventing them from exercising their right to vote which is also violative of the provision of Article 17 of the Constitution.

The importance of right to vote has elaborately been discussed by the august Apex Court in the case of Ch. Nasir Iqbal^[5] in the following manner:-

6. Under Article 17 of the Constitution every citizen has right to vote to participate in the governance of the country through their chosen representatives. The law provides the people of this country, irrespective of their social ethnical status and religious affiliation, to choose their representative in whom they repose confidence. Hence, every eligible individual should be allowed to utilize the right to vote irrespective of his caste or creed or any other consideration. The Supreme Court of Pakistan adjudged many cases on the aspect of access of voters to the credentials of the contesting candidates. Reference in this behalf may be made to the case of Mian Najeeb-ud-Din Owaisi v. Amir Yar (C.MA.1535 of 2013 etc.) wherein this Court held as under: "The voters who are about to elect their representatives are one of the most important stakeholders, therefore, to achieve the object of honest, just and fair elections, they would not constitutionally and legally allow a candidate to manage to sneak into Parliament without proving that he is qualified to represent them as such representative has to perform the noblest and honourable job of making policies and laws for the Nation."

Reference may also be made to the case of Benazir Bhutto v Federation of Pakistan (PLD 1988 SC 416) wherein it has been observed that Article 17(2) provides the basic guarantee to the citizen against usurpation of his will to freely participate in the affairs of the governance of Pakistan through political activity relating thereto. The said observation was also reaffirmed by this Court in the Case of Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473). Thus, objection raised by learned Attorney General on the maintainability of petition under Article 184(3) of the Constitution, is overruled.

7. It is now settled in almost all countries of the world that every citizen of a country, irrespective of his place of residence, must be allowed to participate in and contribute to the democratic process of his country, though the manners and the extent of the right to vote differ from country to another. Countries including Austria, Belgium, Croatia, France, Italy and Norway allow voting to all the categories of non-resident citizens, including those permanently residing abroad while Bosnia and Herzegovina, Denmark, Germany and United Kingdom are countries that allow the right to vote to certain categories of citizens residing abroad.

8. It is to be noted that there is no distinction between the citizens living within Pakistan or outside the country, with regard to the right to vote in terms of the Article 17 of the Constitution. The only difference is that the citizens living within the country have been provided the facilities to cast their vote in the elections, i.e. the Elections of National and Provincial Assemblies, Local Bodies and others, whereas citizens living abroad are yet to be extended the mentioned facilities. It warrants to mention that the right to vote has not been denied to the overseas Pakistanis, who are as much important as those living inside the country, but only the facilities to vote, which provides the sense of ownership and participation in the governance of the country, has not been extended to them. Needles to observe that the Pakistani citizens living abroad earn money by working there and then send the same in the shape of foreign remittances to the country. In this manner, they contribute to the welfare of the state, well being of the citizens and good governance of the country by providing financial support through their families living inside Pakistan.

25. The petitioners, represent the marginalized communities of the nation, being women and non- Muslim members who usually cannot compete in elections against general seats as such they have been given special reserved seats in the Assemblies allocated in terms of Article 51(3), (6)(c)

(d) & (e) of the Constitution. But, owing to a dispute regarding the allocation of such seats with exception of Sunni Ittehad Council "SIC", which has majority in the Khyber Pakhtunkhwa Assembly, the present dispensation is resisting oath to the petitioners in order to denying them the right to participate in the proceedings of the Assembly and also to deprive them from exercising their right to cast votes in upcoming Senate election which is violation of the mandate of the Constitution.

26. For the reasons discussed above, we admit and allow these writ petitions in the following terms:-

(a) We direct the worthy Chief Minister Khyber Pakhtunkhwa and the Provincial Cabinet to take all material steps in terms of Article 105 along with all enabling provisions of the Constitution for summoning the session of the Provincial Assembly within fortnight positively, after receipt of this judgment, so that the oath is administered to the Petitioners in terms of Article 65 of the Constitution before the upcoming Senate election and;

(b) We also direct the worthy Speaker Khyber Pakhtunkhwa Provincial Assembly to administer Oath to the petitioners in the session to be requisitioned in terms of ibid direction and; allow them to sign the Roll of Members in terms of Articles 65 & 255 of the Constitution of Islamic Republic of Pakistan, 1973 read with Rule 6 of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 along with all other enabling provisions of the Constitution and the ibid Rules.

Above are the reasons of our short order of dated 27.03.2024.