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Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT

WRIT PETITION NO.30456 OF 2022

Muhammad Sibtain Khan v. Province of the Punjab, etc.

WRIT PETITION NO.30459 OF 2022

Mushtaq Ahmad Malik v. Muhammad Hamza Shahbaz Sharif, etc.

WRIT PETITION NO.34726 OF 2022

Zainab Umair, etc. v. Province of the Punjab, etc.

WRIT PETITION NO.32665 OF 2022

Mian Mahmood ur Rasheed Ahmad v. Government of the Punjab, etc.

WRIT PETITION NO.30670 OF 2022

Munir Ahmad v. Province of the Punjab, etc.

WRIT PETITION NO.30569 OF 2022

Chaudhary Parvez Elahi v. Province of the Punjab, etc.
and
INTRA COURT APPEAL NO.27313 OF 2022
Muhammad Sabtain Khan, etc. v. Muhammad Hamza Shahbaz Sharif, etc.

INTRA COURT APPEAL NO.28417 OF 2022

Mian Muhammad Aslam, etc. v. Muhammad Hamza Shahbaz Sharif, etc.

INTRA COURT APPEAL NO.28418 OF 2022

Mian Mehmood ur Rasheed etc. v. Muhammad Hamza Shahbaz Sharif etc.

Date of Hearing: 30.06.2022.

Petitioners/appellants M/s Syed Ali Zafar, Muhammad Azhar Siddique,

Imtiaz Rasheed Siddiqui, M. Safdar Shaheen
by:
Pirzada, Amir Saeed Rawn, Mushtaq Ahmad Mohal,
Chaudhary Muhammad Farman Manais, Abdullah
Malik, Munir Ahmad, Mian Shabbir Asmail,
Barrister Shehryar Kasuri, Naila Iqbal, Ashhad Ali
Azhar, Raza Imtiaz Siddiqui, Muhammad Humzah
Sh., Junaid Razaq, Hammad Khalid Butt, Khawaja
Khalid Butt, Sardar Qasim Hassan Khan, Mustafa
Shaukat Imran Pasha, Afsar Raza Khan, Muhammad
Kashif Khan Khichi, Chaudhary Muhammad
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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Shoaib, Salma Riaz, Fayyad Ahmad Mehr, Amna

Liaqat, Nudrat B. Majeed, Ahmad Imran Ghazi,
Arslan Altaf Khan Swati, Kashif Bashir, Sabeel
Tariq, Nasir Mehmood Chaudhary, Waqas Asghar
Jathol, Qadeer Ahmad Kalyar and Jamshaid Alam,
Advocates.

Respondent M/s Mansoor Usman Awan, Khalid Ishaq, Umair

(Muhammad Hamza Ahmad, Malik Mohammad Aslam, Haris Irfan,
Shahbaz Sharif) by: Mian Shahzeb and Malik Muhammad Ashraf,
Advocates.

Respondent (Dost M/s Malik Muhammad Ahmad Khan. Usama

Muhammad Mazari) Khawar Ghumman, Ramis Sohail, Barrister Jannat
Ali Kalyar and Salman Ahmad Dogar, Advocates.

Federation:
M/s Mirza Nasar Ahmad, Additional Attorney
General and Tahir Mahmood Ahmad Khokhar
Deputy Attorney General.

Province:
Mr. Shahzad Shaukat, Advocate General, Punjab.
M/s Jawad Yaqoob Malik and Barrister Qasim Ali
Chowhan, Additional Advocates General,
M/s Barrister Hassan Khalid Ranjha, Barrister
Tayyab Jan and Sumera Hussain, Assistant
Advocates General.

President of Pakistan.
Mr. Ahmed Awais, Advocate assisted by M/s Tipu
Salman Makhdoom, Rai Shahid Saleem Khan, Ali
Awais, Moeen Ahmad, Hussain Awais and Belal
Awais, Advocates.

Governor of the Punjab:

M/s Ch. Sultan Mahmood and Samran Mushtaq,
Advocates.

SHORT ORDER
For the reasons to be followed, decision on writ petitions and appeals heard
by this Bench is as under: -

1. The decision by August Supreme Court of not counting votes of defecting

members of a political party is squarely applicable to the election of Chief
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
3

Minister held on 14th April 2022. Relevant excerpt of which is reproduced

hereunder: -

“3. Turning to the second question and keeping in mind the answer to the
first, it is our view that the vote of any member (including a deemed
member) of a Parliamentary Party in a House that is cast contrary to
any direction issued by the latter in terms of para (b) of clause (1) of
Article 63A cannot be counted and must be disregarded, and this is so
regardless of whether the Party Head, subsequent to such vote,
proceeds to take, or refrains from taking, action that would result in a
declaration of defection. The second question referred to this Court
stands answered in the foregoing terms.”
[emphasis supplied]

It is an undeniable fact that 25 members of Pakistan Tehreek-e-Insaaf had

voted for Mr. Muhammad Hamza Shahbaz, whereas the party had nominated
Mr. Pervaiz Ellahi as its candidate. Respondent’s contention that the members
have not defected in absence of a direction in terms of Article 63A(1)(b) has
no force. The emphasised part of the order, ibid, discloses the intent behind
the decision that possibility of defection from the Party line, policy or
direction is to be curbed, at the time of poll by the Presiding Officer, regardless
of declaration or action by Party Head. It is understood that presence in the
House, enlistment on voter list and casting of vote is not prohibited, however
the vote so cast, is held not countable.

2. The contention of quashing the Notification No. SO (CAB-II)2-12/2018(VOL-I)

dated 30.04.2022, besides direction for second poll under proviso to Article
130(4) has not impressed us. We could, possibly direct fresh election after
declaring the election as unlawful but it would nullify the direction by Apex
Court to the state functionaries for conduct of election in accordance with the
Constitution and the decision by learned Division Bench of this Court,
appointing Deputy Speaker as presiding officer and directing for conduct of
election on 16th April 2022. We cannot quash the Notification and ask the
Presiding Officer to proceed under provisos to Article 130(4), when one of
petitioner’s counsel (Mr. Amir Rawn, Advocate) has pleaded that practically
195 votes were casted and the respondent’s contention is that casted votes are
197. Even otherwise, after declaring that 25 votes could not be counted, we
cannot assume the role of the Presiding Officer, under Article 130(4), to
determine majority of countable casted votes. The Presiding Officer (Deputy
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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Speaker) of the election held on 16th April 2022 is, therefore, directed to
recount votes after excluding 25 votes of the defecting members. As a
consequence, if required majority, under Article 130(4), is not secured by any
candidate, he shall proceed for second and further polls under its provisos for
completing the process of election as required under Article 130(4), unless a
candidate is elected by majority votes.
Though on recounting as directed, the consequential procedure and effect
shall be in accordance with the Constitution and Rules made thereunder,
nevertheless, for clarity it is explained that Hamza Shahbaz shall cease to be
Chief Minister, if he loses the required majority after exclusion of 25 votes by
Presiding Officer and the communication of his being elected candidate under
Rule 21 along with Notification dated 30.04.2022 shall deem to have been
quashed. In this eventuality, functions performed and powers exercised, by
Hamza Shahbaz as Chief Minister and his cabinet, in accordance with law,
shall be protected under the de facto doctrine.
3. The session, for this purpose, as originally called by the then Governor shall
be resumed on 1st July 2022 (Friday) at 4:00 pm without fail. All the
functionaries under the Constitution or law, within their respective share of
powers, shall act jointly and severally to implement the directions by this
Court. The session so resumed shall not be prorogued till the election process
is completed and Presiding officer intimates the result of elected Chief
Minister to the Governor under the Rule 21. The Governor shall preform his
duty, under Article 130(5), of administering oath without any hesitation and
by ignoring any apprehension regarding conduct election, at any time before
11:00 am very next day.
We cannot ignore the disorder in various sessions of the Provincial Assembly,
therefore are constrained to observe and direct that any attempt of disorder
from any quarter shall be taken as contempt of court and shall be proceeded
accordingly by this Larger Bench on formal information by any person.
4. We allow writ petitions to the extent and manner noted above, however, rest
of the prayers in the petitions are declined by dismissing the petitions to this
extent.
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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The Appeals, regarding oath of Chief Minister by Speaker National

Assembly, an ancillary matter, are hereby disposed of. The reasons and
decision on the constitutional questions, pleaded and argued during
proceedings, shall be released later.

5. We appreciate that on our verbal instructions, the print and electronic media
has reported proceedings before this Bench professionally and carefully,
however, some Vloggers have scandalised the proceedings recently. We,
therefore, direct the FIA and PEMRA, having jurisdiction in the matter, to
take legal action on their own notice and if so informed by any person. This
Larger Bench shall initiate contempt proceedings for scandalizing the
proceedings before it, if so brought formally before this Court by any person.

SADAQAT ALI KHAN

Judge

SHEHRAM SARWAR CH. SHAHID JAMIL KHAN

Judge Judge

I am partly not in agreement with the majority decision and have

appended separate note.

MUHAMMAD SAJID MEHMOOD SETHI

Judge
I concur with the short order of the majority. However, I shall record
my reasons separately.

TARIQ SALEEM SHEIKH

Judge
SAJJAD
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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MUHAMMAD SAJID MEHMOOD SETHI, J:- I have the privilege of

going through the short or`der of my learned brothers. For detailed reasons
to be recorded later, I concur with the majority decision to the extent that:

1. The short order dated 17.05.2022, passed by Hon’ble Apex Court in

Constitution Petitions No.2 & 9 of 2022 and Presidential Reference
No.1 of 2022, of not counting votes of defectors in view of Article
63A of the Constitution is applicable to the election of Chief
Minister of the Punjab held on 16.04.2022.
2. The appeals concerning oath of respondent-Muhammad Hamza
Shahbaz Sharif by Speaker National Assembly and other important
questions raised therein are disposed of for the reasons to be released
later.
3. Prayer to the extent of declaring the election illegal as a whole, in
some Constitutional petitions, is declined.

However, I respectfully disagree with remaining majority decision and

observe as under:-

(i) 25-votes of defectors (Members of the Provincial Assembly from

Pakistan Tehreek-e-Insaf), cast in favour of respondent-Muhammad
Hamza Shahbaz Sharif, are admitted, so, there is no need to repeat
the exercise of counting / re-counting. Deputy Speaker, Provincial
Assembly of the Punjab shall conduct second poll in terms of first
Proviso to Article 130(4) of the Constitution for the election of the
office of Chief Minister. The second poll shall be held between the
candidates who secured two highest numbers of votes in the first
poll and the member securing majority of votes of the members
present shall be called upon by the Governor of the Punjab to assume
the office of Chief Minister after administering oath within the
contemplation of Article 130(5) of the Constitution.
(ii) Reasonable time is necessary enabling Members of the Provincial
Assembly, hailing from far flung areas, to join the session. So it is
appropriate that Provincial Assembly shall meet on 2nd July, 2022 at
4:00 p.m. The remaining directions in this regard, contained in
majority decision, shall remain operative.
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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(iii) The direction to hold second poll, in no way, would nullify any
direction of Hon’ble Supreme Court as no role of Presiding
Officer/State functionaries is being assumed for conduct of election
and the Hon’ble Division Bench only ordered to ensure conduct of
elections in a fair, transparent and impartial manner, strictly as per
the dictates of the Constitution and the Rules of Procedure of the
Provincial Assembly of the Punjab, 1997.
(iv) Total membership of the Punjab Assembly is 371, the requisite
majority to become Chief Minister is 186 votes. It is evident from
record and admitted by Mr. Ali Zafar, Advocate for petitioners
before this Bench as well as in his written submissions that
respondent-Muhammad Hamza Shahbaz Sharif obtained 197 votes
which fact is also confirmed by the respondents, therefore, stance of
Mr. Amir Rawn, Advocate that actually 195 votes were cast in
favour of respondent does not restrict this Bench to order for second
poll as per the aforesaid provision of the Constitution so as to
implement the judgment of the Hon’ble Apex Court straightaway,
especially when petitions to the extent of challenging election as a
whole stand dismissed by this Bench.
(v) After excluding 25 votes of defectors, the remaining votes at the
credit of respondent-Muhammad Hamza Shahbaz Sharif are 172,
therefore, he is not member elected within the contemplation of
Article 130(4) of the Constitution and being a stranger to the office
of Chief Minister, cannot be allowed to hold the office; besides, it
will give political advantage to respondent over the other contesting
candidate, thus, office of a non-elected member cannot be protected
which even otherwise appear to be against the mandate of Article
133 of the Constitution;
(vi) Such disqualification will commence from the date when the
Notification declaring the respondent as elected was issued, thus, the
respondent is required to be de-notified;

CONCLUSION

A. In view of the above, the Constitutional petitions are allowed in the

manner that impugned letter dated 16.04.2022, addressed to
W.P.Nos.30456, 30459,34726, 32665, 30670, 30569 of 2022 &
ICA Nos.27313, 28417 and 28418 of 2022
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Governor of the Punjab by Deputy Speaker, pronouncing

respondent-Muhammad Hamza Shahbaz Sharif as successful
member elected for the office of Chief Minister, and Notifications
dated 30.04.2022, regarding administration of oath by respondent-
Muhammad Hamza Shahbaz Sharif as Chief Minister and cessation
of Mr. Usman Ahmed Khan Buzdar to hold the office of Chief
Minister are set aside being illegal and without lawful authority.
Consequently, Mr. Usman Ahmed Khan Buzdar, is restored to the
office of Chief Minister of the Punjab with immediate effect, as he
was on said date.
B. In the interest of the administration of the Province and its people, I
put forth to invoke the de facto doctrine and declare that all acts /
actions, otherwise legal and valid, executed between 30.04.2022 and
today by the respondent-Muhammad Hamza Shahbaz Sharif as
Chief Minister of the Punjab and his Cabinet, shall not be adversely
affected by reason only of this order and proposed reasons.

(Muhammad Sajid Mehmood Sethi)

Judge