' This is a reference sent by the Speaker of National Assembly- of Pakistan under Article 63 (2) of the Constitution of Islamic Republic of Pakistan, alongwith original petition moved by Haji Muhammad Saifullah Khan, Article 63 (2) of the Constitution provides as follows:-- "63(2). If any question arises whether a member of the Majlis-e-Shoora (Parliament) has become disqualified from being a member, the Speaker or, as the case may be, the Chairman shall refer the question to the Chief Election Commissioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant."
2. The question referred to is whether the members of the Caretaker Cabinet are covered by the definition of "Service of Pakistan" or not. I think it would be convenient if the entire reference is reproduced below:-- ' Haji Muhammad Saifullah Khan, Advocate, Rahimyar Khan, and former Minister for Religious Affairs, has made this petition praying that the question may be referred to the Chief Election Commissioner under Article 63 (2) of the Constitution for seeking his opinion as, according to him, 29 honourable members of the National Assembly named in the petition, have incurred disqualification from being member of the National Assembly for the reason that they were appointed Prime Minister, Federal Ministers, Ministers of State, Advisors and Special Assistants in the Care-taker Cabinet. The plea of Haji Muhammad Saifullah Khan is that two types of Cabinets are mentioned in our Constitution. One is the 'Cabinet' under Article 91 of the Constitution and the other is 'Care-taker Cabinet' under Article 48 (5) (b) of the Constitution which is appointed by the President in his discretion when the NationalAssembly is dissolved. Caretaker Prime Minister, members of Caretaker Cabinet, Advisors and Special Assistants to the Caretaker Prime Minister are included in the defmition of 'Service of Pakistan'. He has, invoked paragraph (k) of clause (1) of Article 63 of the Constitution, which provides that a person shall be disqualified from being a member of Majlis-e-Shoora (Parliament) if he has been in 'Service of Pakistan' or of statutory body or any body which is owned or controlled by the Government or in which the Government has a controlling share or interest, unless a period of two years has elapsed since he ceased to be in such service.
2. Since there is difference between the Cabinet appointed under Article 91 of the Constitution and the Caretaker Cabinet appointed by the President in his discretion under Article 48 (5) (b) of the Constitution, it would be for the competent authority to determine as to whether members of Care- taker Cabinet are covered by the definition of 'Service of Pakistan' or not. The question is accordingly referred to the Chief Election Commissioner for his opinion.
3. The original petition of Haji Muhammad Saifullah Khan is enclosed herewith.
(Sd.) 6-7-1993 (GOHAR AYUB KAHN) Speaker, National Assembly of Pakistan."
3. Notices were issued to all 29 respondents through registered post as well as through electronic media.
4. I have heard Haji Muhammad Saifullah Khan at great length and Mr. Ait7a7 Ahsan, Advocate, for himself and on behalf of 16 members of the National Assembly, who were present, and also Mr. Iqbal Ahmed Khan, Advocate.
5. It would appear from the above-quoted Reference that the question referred under Article 63 (2) of the Constitution to the Chief Election Commissioner, is whether members of Care-taker Cabinet are covered by the defmition 'Service of Pakistan' or not. Under the Article 63 (2) of the Constitution, the Chief Election Commissioner has jurisdiction to decide the question whether a Member of Majlis-e-Shoora has become disqualified from being a member. It further provides that if such a question arises the Speaker or as the case may be, the Chairman shall refer the question to the Chief Election Commissioner.
6. It is fairly and justly conceded by Haji Muhammad Saifullah Khan that the question referred to by the Speaker is not in accordance with the Article 63 (2) of the Constitution. He submitted that he would have asked the Chief Election Commissioner to refer this question back to the Speaker for framing the question afresh in accordance with the Constitution and the petition filed by him, but now since the National Assembly is dissolved and the respondents are no more members of the Assembly, it would be futile exercise if such a course is adopted.
7. It was therefore not considered necessary to decide the Reference on merits. However, Mr. Aitzaz Ahsan insists that the matter may be decided on merits. In his request Mr. Iqbal Ahmed Khan, Advocate, joins. At this stage it was brought to my notice by Haji Muhammad Saifullah Khan that the Supreme Court of Pakistan in the case of Mr. Muhammad Nawaz Sharif v. President of Pakistan and others, PLD 1993 SC 473, while declaring the Order of dissolution of National Assembly void and of no legal effect, also delcared all the consequential steps taken under the order of dissolution of National Assembly to be of no legal effect. It woud be convenient to reproduce the relevant portion from the concluding paragraph of the judgment, which is as follows:-- "All steps taken pursuant to the Order, dated 18-4-1993, under Article 58 (2) (b) of the Constitution including the appointment of Care-taker Cabinet and Care-taker Prime Minister are also declared of no legal effect." .8. I am therefore, of the view that since the appointment of Care-taker Government was void, therefore, the Care-taker Prime Minister and the A members of his Cabinet could not to have incurred any liability under Article 63 (k) of the Constitution. Therefore, for all the aforesaid reasons, Reference has become infructuous and disposed of as such.