1. ' SAJJAD ALI SHAH, J.-Office has raised four objections durini scrutiny of this petition before its- placement in the Court for Ketch: Peshi. Learned counsel for the petitioner requested for hearing ii the Court of those objections. Vide order, dated 2-4-1986 passed by the Court, first objection was disposed of as the learned counsel for the petitioner undertook to file the required notification in the Office. For the second objection to the effect that Government of Sind have not been impleaded as Party, Mr. Aitzaz Ahsan stated that it was not necessary for the reason that petition was in the nature of quo warranto. However, by order of the Court This objection was left open to be considered if raised by the respondent after admission 0f the petition. For hearing of objections 3 and 4 notice was issued to A.-G. Sind and subsequently to the respondent as well.
2. We have heard learned counsel for the parties and A.-G. Sind. For the sake of convenience objection No,4 being short is taken up first for disposal. This objection is that petition is not maintainable without compliance of Article 248 of the Constitution of Islamic Republic of Pakistan.
3. This objection is overruled on the short ground for two reasons, Firstly that protection contemplated therein for personages is in respect of powers and performance of functions of their respective officers. Secondly requirement of notice will be attracted only when relief is claimed in civil proceedings against the President or a Governor. In this petition, appointment of respondent as Chief Minister Sind and his holding of office as member Sind Assembly are called in question.
4. ' The last objection as stated above is whether this petition is mainitainable under Article 199 (1) (b)
(ii) of the Constitution, when, member of the Assembly cannot be treated as a person holding public office. For that matter even Chief Minister is excluded from definition of "Service of Pakistan" as envisaged in Article 260 of the Constitution. Since this is question of maintainability of the petition, I would like to leave it open for the time being for the reason that the main grievance of the petitioner is that the respondent could not have been appointed as Chief Minister of Sind and allowed to be elected as member of the Sind Assembly because prior to that he was Judge of Sind High Court and in view of the Constitutional bar, two years had not elapsed before he ceased to be in such service.
5. ' In support of the contention stated above, learned counsel for the petitioner has relied upon'
6. Articles 63(1) (d) (k), 127, 113, 195 and 260 of the Constitution of Pakistan read with Revival of Constitution Order 1985, which came into effect on 10-3-1985 and explanation at the end of Section 78 of Senate (Election) Act 51/1975 and Sections 19 and 21 of P.P.C. Further reliance was placed on the cases of Farzand Ali PLD 1970 SC 98. Fazlul Qadir Chowdhry's case PLD 1963 SC 486 and Muhammad Yousuf's case PLD 1968 Lah.
7. 30.
8. ' Mr. A A.A. Fazeel, Advocate who was present in the Court on notice as counsel for respondent for hearing of objections only, submitted that the Chief Martial Law Administrator has exempted respondent from the disqualification vide order, dated 27th April, 1985 while exercising powers under Martial Law Order No,104 which is protected with complete validation under Article 270-A of the Constitution. He further stated that the question of disqualification was agitated before the Chief Election Commission and copies of his order dated 5th June, 1986 have been produced in which it is held that respondent is not disqualified from being elected as, and from being, a Member of the Provincial Assembly of Sind at the time of his election. Further reliance was placed on Article 63 (2) of the Constitution. Mr. Aitzaz Ahsan replied that mover in the reference was a different person and was not petitioner in the instant case. Mr. Fazeel further relied upon on Article 199 (2) of the Indian Constitution and cited the following cases. AIR 1965 SC 1892 at 1896, AIR 1968 Mad. 234 at 236, AIR 1965 SC 961 and PLD 1969 SC 42 at 51.
9. Another contention' raised on behalf of the petitioner is that the respondent was given oath of Office as Chief Minister Sind on 6-4-1985, when on that day, he was not member of the Provincial Assembly of Sind as such the oath was in contravention of Article 130 of the Constitution, which makes it mandatory for the appointment of Chief Minister from among members of the Provincial Assembly.
10. ' After hearing learned counsel for both parties and A.-G. Sind. I am of the view that questions raised in this petition are complex and important and relate to the interpretation of various provisions of the Constitution and other laws necessitating admission of this petition. I, therefore, admit this petition to regular hearing. Notice be also issued to the Attorney-General of Pakistan and Advocate-General Sind as very important law-points are involved.
11. ' NAIMUDDIN, C.J.--I am of the view that the constitutional and legal questions and contentions raised except those already decided by the Full Bench of this Court in Constitution Petition No,D- 883 of 1985, being of public importance should be heard and decided after hearing the Attorney- General for Pakistan and the Advocate-General, Sind. .So far as objection No,4 is concerned I agree with my learned brother who has overruled it.
12. ' I would, therefore, admit the petition to regular hearing.
13. ' Issue notice as ordered by my learned brother Sajjad Ali Shah,