CH. MUSHTAO AHMAD KHAN, J --This judgment is in continuation and as a part of our short order, dated 30-5-1995, whereby Writ Petitions Nos.6703, 6734 and 6735 of 1995, were dismissed, for detailed reasons to be recorded later.
2. Briefly stated facts, out of which, these writ petitions have arisen are that Ch. Muhammad Altaf Hussain, Governor of the Punjab, died on 21st of May, 1995. Vide commission of appointment, President of Pakistan appointed, Mr. Justice Muhammad Ilyas, as Acting Governor of the Province of Punjab on 22-5-1995, on which date, his Lordship was administered oath of office and is presently discharging the functions of Governor of Punjab. Syed A.I Raza Asad Abidi, a citizen of Pakistan, has questioned the above-referred appointment in Writ Petition No.6703 of 1995, whereas, Messrs Arshad Imran Suleri and Tabbish Alveri, Members of the Provincial Assembly of the Punjab have challenged the same in Writ Petitions Nos.6734 and 6735 of 1995, on the grounds that the appointment in question is beyond the scope of Constitution of Islamic Republic of Pakistan, 1973, and is violative of the law declared by the Supreme Court of Pakistan, according to which, Judiciary stands separated from the Executive.
3. In pursuance of the notice issued to the Attorney-General of Pakistan and Advocate-General of Punjab in terms of Order XXVII-A, Rule 1, C.P.C. Messrs Faqir Muhammad Khokhar, Masood Mirza and War Pasha Chaudhary, Deputy Attorneys-General of Pakistan have appeared on behalf of the Federation of Pakistan, whereas Mian Abdus Sattar Najam, Advocate General, Punjab, has appeared on behalf of the Province of the Punjab.
4. Preliminary arguments have been heard at length from both the sides. The petitioners have raised the following contentions:---
(i) That a permanent vacancy of Governor of Punjab having occurred due to the death of Ch. Altaf Hussain, the Ex-Governor of Punjab, President of Pakistan had no lawful authority to make an acting appointment as Article 101 of the Constitution of Islamic Republic of Pakistan, 1973, visualizes only of making of a permanent appointment.
(ii) That the questioned appointment is also not authorised by virtue of the powers conferred upon the President of Pakistan under Article 104 of the Constitution, as the appointment as Acting Governor under the said Article can only be made if the Governor is still alive but is otherwise not in a position to perform his functions or is temporarily absent from the country.
(iii) That respondent No.1, who is an Acting Chief Justice of the Lahore High Court, cannot be appointed as an Acting Governor in view 9f the fact that the judiciary has been held to have separated from the executive under the mandate of Constitution of Islamic Republic of Pakistan, 1973, as per law declared in cases of Government of Sindh, Karachi and others v. Sharaf Faridi and others (PLD 1994 SC 105) and The State v. Editor, Printer, Publisher and Proprietor of Daily `Muslim', Islamabad (PLD 1995 Lah. 147); and
(iv) That there is no earlier precedent to resolve the controversy in question and, hence, the case being of first impression requires to be admitted to a regular hearing particularly, when Writ Petitions NosS473 of 1992 and 1290 of 1993, have already been admitted to regular hearing, wherein the appointment of the Ex-Chief Justice of Lahore High Court as well as that of General (Rtd.)
Muhammad Iqbal as Acting Governors of the Punjab, has been challenged.
5. The learned law officers on the other hand have contended that the appointment in question is fully covered under the provisions of Article 101(5) read with Article 104 of the Constitution, which reads as under:--- "101(5). The President may make such provision as he thinks fit for the discharge of the functions of a Governor in any contingency not provided for in this part."
According to them, till the time the occurred vacancy is permanently filled up, a contingency had arisen due to unforeseen circumstance, wherein the President was fully competent to make an acting appointment for the purpose of discharging the functions of the Governor. In support of their contentions besides the above-referred Articles, reference has been made to Article 2, Section 1, clause 6 of the Constitution of U.S.A. Article 70 of the Indian Constitution, provisions whereof are para meteria to the provisions of Article 101(5) of the Constitution of Islamic Republic of Pakistan, 1973, and also to the following cases: Ch. Zahur Elahi, MNA v. The State (PLD 1977 SC 273 at page 309), Messrs Pervez Industrial Corporation v. Messrs New Lahore Transport Company and 3 others (PLD 1975 Kar. 88), Allah Ditta v. State through Secretary, Ministry of Defence, Islamabad (PLD 1976 Lah. 823), Mr. Zulfiqar A.I Bhutto v. The State (PLD 1978 SC 40), Surya Narain Chaudhary v. Union of India and others (AIR 1982 Raj. 1) and Arun Kumar v. Union of India and others (AIR 1982 Raj. 67) and various authoritative books. Learned counsel further contend that the referred writ petitions, relate to different contingencies altogether, hence, pendency thereof is absolutely irrelevant for the purpose of decision of controversy in question and that the questioned appointment being provisional in nature, it does not militate against the concept of separation of executive and judiciary.
6. In reply to the above arguments, Syed A.I Raza Asad Abidi, petitioner, as well as Mr. Muhammad Aslam Hayat, Advocate, learned counsel for the petitioners, have reiterated their arguments taken note of in the earlier part of this judgment and have further contended that provisions of the Constitution are to be given literal meanings as nothing can be added thereto or omitted therefrom; that it is the intention of the Legislature which is to be seen while interpreting the Constitution as such where the Legislature intended, provisions have-been made for identical contingencies. In case of the President, Auditor-General, Chief Justice of Pakistan, Chief Justices of High Courts and Chief Election Commissioner specific Articles 49, 168, 180, 196 and 217 are there, hence, omission of a similar provision in the Constitution, regarding the contingency of occurrence of permanent vacancy of a Governor due to his death, clearly proves that acting appointment is not at all visualized by the Constitution. Hence, according to them questioned appointment is illegal and without a lawful authority. In support of their arguments, reliance has been placed on the cases of Mr.Fazal-ul-Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and Krishna Ballabh Sahay and others v. Commission of Inquiry and others (AIR 1969 SC 258) and a photo copy of the opinion of the Speaker of the Provincial Assembly with reference to Article 63(2) of the Constitution.
7. Before embarking upon the decision of issues involved in these petitions it will be advantageous to take note of various Articles of the Constitution of Islamic Republic of Pakistan, 1973. The Constitution of India, the Constitution of U.S.A. Views of the celebrated Commentators, regarding the relevant Articles from the Indian and American Constitutions and resume of the relevant case- law cited at the bar, which are reproduced as under:--- "CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973 Article 49.---(1) If the office of President becomes vacant by reason of death, resignation or removal of the President, the Chairman or, if he is unable to perform the functions of the office of President, the Speaker of the National Assembly shall act as President until a President is elected in accordance with clause (3) of Article 41. .....Underlining is by us.
(2) When the President, by reason of absence from Pakistan or any other cause, is unable to perform his functions, the Chairman or, if he too is absent or unable to perform the functions of the office of President, the Speaker of the National Assembly shall perform the functions of President until the President returns to Pakistan or, as the case may be, resumes his functions."
Article 101. --(1) There shall be a Governor for each province, who shall be appointed by the President (after consultation with the Prime Minister).
(2) A person shall not be appointed a Governor unless he is qualified to be elected as a member of the National Assembly and is not less than thirty-five years of age.
(3) The Governor shall hold office during the pleasure of the President (and shall be entitled to such salary, allowances and privileges as the President may determine).
(4) The Governor may, by writing under his hand addressed to the President, resign his office.
(5) The President may make such provision as he thinks fit for the discharge of the functions of a Governor (in any contingency not provided for in this Part---------.Underlining is by us.
ARTICLE 104.---When the Governor is absent from Pakistan or is unable to perform the functions of his office due to any cause, such other person as the President may direct shall act as Governor.
ARTICLE 168. --(1) There shall be an Auditor-General of Pakistan, who shall be appointed by the President.
(2) Before entering upon office, the Auditor-General shall make before the Chief Justice of Pakistan oath in the form set out in the Third Schedule.
(3) The terms and conditions of service, including the term of office, of the Auditor-General shall be determined by Act of Majlis-e-Shoora (Parliament) and, until so determined, by Order of the President.
(4) A person who has held office as Auditor-General shall not be eligible for further appointment in the service of Pakistan before the expiration of two years after he has ceased to hold that office.
(5) The Auditor-General shall not be removed from office except in the like manner and on the like grounds as a Judge of the Supreme Court.
(6) At any time when the office of the Auditor-General is vacant or the Auditor-General is absent or is unable to perform the functions of his office due to any cause, such other person as the President may direct shall act as Auditor-General and perform the functions of that office------.Underlining is by us.
ARTICLE 180. --At any time when---
(a) the office of Chief Justice of Pakistan is vacant; or
(b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint (the most senior of the other Judges of the Supreme Court) to act as Chief Justice of Pakistan.
ARTICLE 196.---At any time when---
(a) the office of Chief Justice of a High Court is vacant, or
(b) the Chief Justice of a High Court is absent or is unable to perform the functions of his office due to any other cause, the President shall appoint (one of the other Judges of the High Court, or may request one of the Judges of the Supreme Court), to act as Chief Justice.
ARTICLE-217. --At any time when
(a) the office of Commissioner is vacant, or
(b) the Commissioner is absent or is unable to perform the functions of his office due to any other cause, a Judge of the Supreme Court nominated by the Chief Justice of Pakistan shall act as Commissioner.
ARTICLE 260.---x x x x x x x x x x x x x x x x x x x x x x x x x x x "Governor" means the Governor of a Province and includes any person for the time being acting as the Governor of a Province; ARTICLE 261.---For the purposes of the Constitution, a person who acts in an office shall not be regarded as the successor to the person who held that office before him or as the predecessor to the person who holds that office after him."
CONSTITUTION OF INDIA: ARTICLE 70.---Discharge of President's functions in other contingencies: Parliament may make such provision as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter. (Underlining is by us).
Comments "This Article empowers Parliament to make provision for the discharge of the functions of the President in any contingency not provided for by the Constitution. For instance, a vacancy may occur at the same time in the offices of President and Vice-President owing to removal or death.
There may be other cases like the kidnapping of the President, or his mysterious disappearance or total disability (not covered by Article 65(2), but in all these the question is, who will decide. In view of the contingency that arose in 1969 due to the sudden death of the President and, resignation of the Vice-President while he was acting as President, Parliament enacted the President (Discharge of Functions) Act, 1969 which provides that in the event of occurrence of vacancy in the office of both the President and the Vice-President by reason of death, resignation, removal or otherwise, the Chief Justice of India, or, in his absence, the senior-most Judge of the Supreme Court of India available shall discharge the functions until a new President is elected."
"ARTICLE-153.---There shall be Governor for each State: Provided that nothing in this Article shall prevent the appointment of the same person as Governor for two or more States."
ARTICLE 160. --The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter."
CONSTITUTION OF U.S.A.
Article II. Section (1) l6 says " ---.. And the Congress may by law provided for the case of removal, death, resignation, or inability, both the President and Vice-President, declaring what officer shall then act as President, and, as such officer shall act accordingly until the disability be removed or a President shall be elected."
COMMENTS FROM THE RELEVANT BOOKS ON THE CONSTITUTIONAL LAW
(1) Governors and Chief Ministers in Indian States, Conflicts and Relations written by S. Madhusoodanan Nair, at page (50), it has been observed as under:--- "And it should be always remembered that Constitutions are not worked by mechanical or literal application of their provisions. Though there are many things which are not written in the Constitution yet their exercise of Constitutional functions is governed by conventions----only conventions the `unwritten maxims' of the Constitution. And these conventions provided the flesh which clothes the dry bones of the law, they make the legal Constitution work, and it is an instrument of national cooperation."
(2) In the Framing of India's Constitution, a study, by the Project Committee Chairman, B. Shiva Rao, Published by the Indian Institute of Public Administration, New Delhi, at pages 392 to 393, it has been observed as under:--- "The Drafting Committee considered that howsoever the Governor was selected---whether elected by the people or appointed by the President---it was not necessary to have a Deputy Governor. Unlike the Vice-President at the centre, the Deputy Governor could not be made the Chairman of the Upper. House of the Legislature, as there might not be two chambers in most of the States. The Deputy Governor would therefore have no definite functions to perform so long as the Governor was there and the only ground for creating the office would be the availability of some person to step into the position of the Governor on the occurrence of a sudden vacancy. The Drafting Committee was of the view that it would be sufficient to include a provision in the Constitution enabling the Legislature of the State (or the President if the Governor was to be appointed by him) to make the necessary arrangements for the discharge of the functions of the Governor in an unforeseen contingency. The Drafting Committee inserted a provision accordingly that the Legislature or the President might make such provision as was considered fit for the discharge of the functions of a Governor in any contingency not provided for in the Chapter. The specific suggestion which the committee made was that it could be laid down in advance that the Chief Justice of the State would discharge the functions of the Governor in the event of a sudden vacancy occurring in that office." ...Underlining is by us.
(3) In N.K. Shukla's Constitution of India, 8th Edition, Mahendra P.Singh, Professor of Law, University of Delhi, Eastern Book Company Lucknow, at page 262, it has been observed as under:--- "Discharge of President's functions in other contingencies.----Parliament may make such provision as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter. This article empowers Parliament to make provision for the discharge of the functions of the President in any contingency not provided for by the Constitution. For instance, a vacancy may occur at the same time in the offices of President and Vice-President owing to removal or death. There may be other cases like the kidnapping of the President, or his mysterious disappearance or total disability (not covered by Article 65(2), but in all these the question is, who will decide. In view of the contingency that arose in 1969 due to the sudden death of the President and resignation of the Vice-President while he was acting as President, Parliament enacted the President (discharge of Functions) Act 1969 which provides that in the event of occurrence of vacancy in the office of both the President and Vice President by reasons of death. Resignation removal or otherwise the Justice of India. Or in his absence the senior most of the Supreme Court of India available shall discharge the functions until a new President is electedUnderlining is by us.
RESUME OF RELEVANT CASE-LAW "The word "any" is used at no less than seven places in section 13 (1) (b). It is a word of very wide amplitude and defined in Stroud's Judicial Dictionary as a word which excludes limitation or qualification (per Fry L. J. Duck v. Bates (1), `as wide as possible' (per Chitty, J. Beckett v. Sutton (2), what then is meaning of the word; "Notwithstanding the provisions of the Code, or any other law, no Court shall have any jurisdiction of any kind in respect of any proceedings of a Special Tribunal'.
The plain and unequivocal words used in these clauses of section 13 (1) (b) make the intention of the law-giver manifest that no Court including a High Court shall under the Code or any other law, call in question or interfere with the proceedings of a Special Tribunal. `Proceedings' do not mean proceedings which have already concluded. As I read the clause the word `proceedings' includes all matters connected with and ancillary to the trial of a person charged before a Special Tribunal including the matter relating to grant of bail."
"Similarly in "Allah Ditta's case" (supra).
"We consider that the High Court has also rightly observed, in another part of its order, that a Judge of a High Court, which term also includes the Chief Justice, does not cease to hold office unless he retires on attaining the age of superannuation as prescribed in Article 195 of the Constitution under Article 209 of the Constitution; or dies. Another situation in which he may be deemed to have vacated his office is, as held in Abrar Hassan v. Government of Pakistan PLD 1976 SC 315, where he accepts another substantive and permanent office, although without formally tendering his resignation from his judgeship. Apart from these situations, a Judge does not vacate his office simply by temporarily ceasing to perform its functions or by temporarily taking up another assignment or office in terms of the permission granted by Article 207 of the Constitution. It follows, therefore, that by his temporary appointment as Acting Governor of the Punjab Mr. Justice Aslam Riaz Hussain has not vacated the office of the Chief Justice of the High Court. According to the argument that the constitution of the High Court is rendered invalid owing to a vacancy in the office of the Chief Justice cannot be sustained on this ground as well.
The next contention that the Acting Chief Justice has not been appointed by a competent authority is no longer available in view of the judgment of this Court in Begum Nusrat Bhutto v. Chief of the Army Staff PLD 1977 SC 657, in which the imposition of Martial Law by the Chief of the Army Staff has been held to be valid on the ground of State necessity, and it has further been held that the Chief Martial Law Administrator has the power to perform, inter alia, all actions which could be taken under the 1973 Constitution. It is, therefore, clear that he, or on his advice the President of Pakistan, was competent to appoint an Acting Chief Justice during the absence or inability of the permanent Chief Justice of the High Court to perform his functions.
It was next contended that the appointment of the Acting Chief Justice was also invalid for the reason that he had not taken the oath as required by Article 194 of the Constitution and as set out in the Third Schedule thereto, but he had instead taken a different oath under the High Courts (Appointment of Acting Chief Justices) Order, 1977 (President's (Post Proclamation) Order No.2 of 1977) read with High Court Judges (Oath of Office) Order, 1977 (President's Post Proclamation) Order No.1 of 1977). It was further submitted that in any case President's (Post Proclamation) Order No.2 of 1977 regarding the appointment of Acting Chief Justices of the various High Courts was unnecessary, as provision in this behalf already existed in Article 196 of the Constitution.
As to the necessity or otherwise of the. President's (Post Proclamation) Order 2 of the 1977, it will suffice to say that it is indeed correct that the power to appoint an Acting Chief Justice of a High Court was already available under Article 196 of the Constitution, and an Acting Chief Justice could, therefore, have been appointed even without the promulgation of this order. It is, however, obvious that the promulgation of this order would not in any manner invalidate an appointment which could clearly have been made in terms of the Constitution itself. "
"(10) Viewed from another angle, Shri K.D. Sharma's appointment to discharge the functions of a Governor under Article 160 of the Constitution cannot be said to be invalid because the person asked to discharge the functions of a Governor of a State under Article 160 of the Constitution need not possess the qualifications provided under Article 157 or Article 158 of the Constitution, as he is not termed as Governor. The oath prescribed for the Governor and for a person discharging the functions of the Governor is different but it entitles the incumbent the same emoluments, allowances and privilege as that of the Governor, whose functions he discharges and for whom he acts. The functionary discharging the functions provided under Article 160 of the Constitution cannot be termed to be a Governor within the meaning of Article 155 of the Constitution. That is why provision for payment, of emoluments was required to be separately made. The provisions of Article 160 of the Constitution are resorted to prevent an interregnum. Necessary corollary of that is that stop-gap functionary need not possess the necessary qualifications for being appointed as a Governor and also does not suffer from the disqualifications attached to that office. He resumes his old office as soon as the new Governor is appointed.
(11) Dr: M.C.J. Kagzi in his book "the Constitution of India" 3rd Edition (1975), at p.262, while dealing with the office of Governor has observed: `There is no provision for appointment of a Deputy Governor. In fact a proposal for it was negatived by the Constituent Assembly. Accordingly any casual vacancy due to illness, death, long absence of a Governor should be filled in the manner the President may decide in accordance with the practice developed, since after the commencement of the Constitution. The established practice requires the President to appoint the Chief Justice or in his absence the senior--most Judge of the State High Court as the Governor pro tempore.
(12) The President (Discharge of Functions) Act, 1969 was enacted by the Parliament in the 20th year of the Republic of India. Section 3 provides that in the event of the occurrence of vacancy in the office of the President and Vice-President, by reason in each case of death,. Resignation or removal or otherwise, the Chief Justice of India, or, in his absence, the seniormost Judge of the Supreme Court of India available shall discharge the functions of the President until a new President is elected in accordance with the provisions of the Constitution to fill the vacancy in the office of the President. A perusal of the Article 58(2) of the Constitution reveals that a person holding office of profit is not eligible for election as President. Article 70 of the Constitution provides that the Parliament may make such provision as it thinks fit for the discharge of the 'functions of the President in any contingency not provided for in this Chapter and the Parliament has directed in this contingency by enacting the above noted `President (Discharge of Functions) Act'. If the Chief Justice of India or the seniormost Judge of the Supreme Court of India can be validly appointed to discharge the functions of the President, there is no reason why the Chief Justice of a State cannot be asked to discharge the functions of the Governor of a State in a contingency not provided for in Chapter VI.
(13) The second limb of the argument of the petitioner is that by virtue of the appointment of the Chief Justice to discharge the functions of a Governor of a State the executive can remove the Chief Justice without following the Procedure provided under sub-clause (4) of Article 124 of the Constitution which amounts to an encroachment of the executive on the judiciary. By appointing respondent No.2 to discharge the functions of the Governor, the executive has made an attempt to favour the judiciary. If executive is allowed to do so, it is likely to provide a handle to the executive to remove a particular authority in case he is proving unsuitable or unwanted.
(14) I have given a careful thought to the abovementioned argument. At the first sight it may appear to be attractive but in fact it is without any substance. The President while exercising the powers under Article 160 of the Constitution makes a stop-gap arrangement. Such an arrangement is made till a Governor appointed under Article 155 of the Constitution enters upon his office. The requirement of Article 153 of the Constitution is that there must always be a Governor for a State. In between the expiry of the term of the previously appointed Governor or his removal and the taking over the charge of the office by the newly appointed Governor there can be some time- lag and Art.160 of the Constitution is required to be used to cover only the time lag before the successor enters upon his office. The appointment of the Chief Justice to discharge the functions of a Governor by no stretch of imagination can be said to an inroad of the executive on the judiciary.
In a given case if the President makes an attempt to remove a High Court Judge or the Chief Justice, of a Court and utilise the provisions of Article 160 of the Constitution as a device to remove an inconvenient Judge or the Chief Justice, the validity of such an appointment can be examined by the Court in a proper case, because then it can be said that the President had neglected to discharge his duties or has failed to act under the Constitution and the Court may find out a remedy for it. The case in hand does not satisfy the need for such an examination as there is nothing on record to hold that the respondent No.2 is an inconvenient Judge to the Union Government or his appointment as a Governor has been made as a device to remove him once for all and as such there is no need for such an examination. The Courts are not required under Article 226 of the Constitution to examine hypothetical an imaginary question."
8. We have considered the arguments addressed by the petitioner as well as - Law Officers, have perused the various Articles of the Constitutions of Islamic Republic of Pakistan, 1973, India and U.SA, views of various commentators on the subject and the relevant case cited at the bar.
9. As regards the effect of admission of two other Writ Petitions Nos.5473/92 and 1290/93, wherein appointment of General (Rtd.) Muhammad Iqbal and W. Justice Mian Mahboob Ahmed, Ex-Chief Justice, Lahore High Court as Acting Governor of the Punjab, has been challenged, suffice it to say that merely because those writ petitions are admitted to a regular hearing, will not advance the case of the petitioner, as the questions involved in these writ petitions, are distinguishable and have not been finally determined in these matters. Therefore, we do not feel any difficulty in deciding this matter without awaiting for final hearing of the said case, as the cause of the nature in hand, should not be kept pending indefinitely, to avoid confusion and fructification thereof.
Hence, writ petitions are proceeded to be decided by us without awaiting for the decision of other referred petitions.
10. A joint reading of the provisions of the Articles 101 and 104 of the Constitution of Islamic Republic of Pakistan (1973), clearly shows that the case of death of a sitting Governor is one of the contingencies for catering whereof, the provision of Article 101(5) have been made as part of the Constitution by amendment therein: Therefore, to say that there is absolutely no provision in the Constitution of Islamic Republic of Pakistan, 1973 for making of an acting appointment, against a permanent vacancy, occurred due to the death of a permanent Governor, is a misconceived notion of correct legal position. As per Article 101(5) of the Constitution, power can be exercised by the President to cater for "any" contingency and death of a sitting Governor definitely falls within the scope of any "contingency" which can be catered for under this provision. In the same Article, the words used are that the provision is to be made for the purpose of discharging the functions of a Governor. It means that the provisions made by the Government under Article 101(5) are for the purpose of discharge of the functions of a Governor in any contingency not provided for in this part.
11. Arguments from the petitioner's side to the effect that once a permanent Governor dies, Acting Governor cannot be appointed as Article 104 of the Constitution, is not applicable, is also based upon misconceived principle of interpretation of Constitution as the Constitution is to be interpreted in a hamogenious manner and not in an destructive manner. Refer the following cases: Case of Hakim Khan v. Government of Pakistan and others (PLD 1992 SC 595) and case of Mian Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993. SC 473). Contingency of the nature in hand, does bring the case within the ambit of Article 101(5) of the Constitution, as appointment of a permanent Governor has to take some time, and as the Executive authority of the Government could not be exercised without a Governor, therefore, pending the decision of appointment of permanent Governor it was a must to make some stop-gap arrangement in relation of appointment in question, which being temporary in nature, it cannot be said that the questioned appointment has been mace in violation of Article 101 or 104.
12. Examined the case from another angle, if we read Articles 260 and 261 of the Constitution of Islamic Republic of Pakistan, 1973 it stands established that although an "Acting Governor" falls within the definition of a "Governor" yet he shall neither be a successor nor predecessor to the Governor whose office he is presently holding. The privileges of the Acting Governor are muchless than a permanent Governor, therefore, the appointment in question being of a temporary nature, no legal exception can be taken thereto.
13. As regards the arguments of the petitioner that due to the judgment rendered by their 'Lordships of the Supreme Court of Pakistan declaring that the judiciary has been separated from the Executive, hence, it is not proper that Acting Chief Justice of the High Court should be appointed as an Acting Governor, suffice it to say that under the Constitution, any person can be appointed as a.
Governor or the Acting Governor, and as the Chief Justice of the High Court falls within the definition of `a person' therefore it cannot be E said that the President has violated any provision of the Constitution or has acted contrary to the law declared by their lordships of the Supreme Court of Pakistan.
14. Resultantly, we see no force in these writ petitions, hence, the same are dismissed in limine.