S.M.C. 1 2023

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The Office has placed before me a request by a learned two

member Bench of the Court, made in its order dated 16.02.2023 in Civil
Petition No.3988 of 2022 that the suo motu jurisdiction of the Court
under Article 184(3) of the Constitution be invoked. The request is
made in the following terms:
“…7. We note that the Provincial Assembly of Punjab stood

dissolved on 14.01.2023 pursuant to the Advice of the Chief
Minister, Punjab dated 12.01.2023. As such, elections to the
Punjab Provincial Assembly are required to be held within 90
days of the said date in terms of Article 224(2) of the
Constitution. However, no progress appears to have taken
place in this regard and there is a real and eminent danger of
violation of a clear and unambiguous constitutional
command.
8. In view of the fact that this matter is not before us in

the present lis, we are not inclined to pass any order in this
regard in view of the principle of law laid down by this
Court in its judgment reported as Suo Motu Case No. 4 of
2021: In the matter of (PLD 2022 SC 306). We are, however,
of the view that the matter brought to our notice during these
proceedings raises a serious question of public importance
with reference to enforcement of Fundamental Rights
conferred by Chapter-1 of Part-II of the Constitution.
Considering the fact that unless timely steps are taken to
remedy the situation, there is an eminent danger of violation
of the Constitution which we are under a constitutional, legal
and moral duty to defend. We therefore consider it a fit case
to refer to the Hon’ble CJP to invoke the suo motu
jurisdiction of this Court under Article 184(3) of the
Constitution, who may if he considers appropriate after
invoking jurisdiction under the said Article constitute a
bench to take up the matter. Let the office place this file
before the Hon’ble CJP for appropriate orders.
9. To the extent of Civil Petition No. 3988 of 2022

alongwith all miscellaneous applications, the matter shall be
taken up tomorrow i.e 17.02.2023.”
2. The context of the request is that the Punjab and Khyber

Pakhtunkhwa Assemblies were dissolved on 14.01.2023 and 18.01.2023
respectively. In both cases, the then Chief Ministers tendered advice to
their respective Governors under Article 112(1) of the Constitution to
dissolve the Assembly. In the case of the Punjab Province the Governor
chose not to act on the said advice so that the Assembly stood dissolved
on the expiry of 48 hours, on the date mentioned above. In the case of
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the KPK Province, the Governor did act on the advice and made an
order dissolving the Assembly on 18.01.2023.
3. Almost immediately after the dissolution of both Assemblies a

question was raised as to who had the constitutional responsibility and
authority to appoint the date of the general election to obtain the
mandate of the electorate and elect fresh Assemblies. It is to be noted
that Article 224(2) requires that a general election be held within a
period of 90 days after the dissolution, and the use of the word “shall”
indicates that this is, prima facie, a constitutional imperative.
4. In respect of the appointment of the date for the holding of the

general elections to the dissolved Provincial Assemblies there is
Constitution Petition No.1 of 2023 (Islamabad High Court Bar
Association vs. Election Commission of Pakistan) already filed and
pending in this Court prior to the making of the request by the Bench.
Subsequently, Constitution Petition No.2 of 2023 has been jointly filed,
inter alia, by Muhammad Sibtain Khan and Mushtaq Ahmad, Speakers
of Punjab and Khyber Pakhtunkhwa Provincial Assemblies
respectively, seeking the same relief.
5. Apart from the foregoing, it appears that several petitions were

filed in the Lahore High Court, inter alia, seeking compliance of the
constitutional obligation imposed by Article 224(2). By judgment dated
10.02.2023 a learned Single Judge in Chambers concluded that the
authority lay with the Election Commission of Pakistan and called
upon the same “to immediately announce the date of election of the
Provincial Assembly of Punjab with the Notification specifying reasons,
after consultation with the Governor of Punjab, being the constitutional
Head of the Province, to ensure that the elections are held not later than
ninety days as per the mandate of the Constitution.” Reportedly both
the Governor and the Election Commission have filed Intra Court
Appeals which are pending before a learned Division Bench of the
High Court. It seems to be the Governor’s case that since he did not act
on the advice tendered by the then Chief Minister and made no order
dissolving the Assembly, he does not have the responsibility or
authority to appoint the date for the general election. The Election
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Commission has, it appears, also taken the position that under the
Constitution it has no authority to appoint the date for a general
election, though it has categorically stated (as reported in the public
media, both print and electronic) that it is fully committed to
conducting the said election in accordance with the Constitution. At the
same time, the Governor of KPK Province has also not appointed a date
for the holding of the general election and a petition in this regard is
pending before the Peshawar High Court.
6. There is another material development in the last few days. It

appears that subsequent to certain correspondence initiated by the
President of Pakistan with the Election Commission, the President has
taken the position that it is he who has the authority and responsibility
for appointing a date for the general elections, in terms as provided in
section 57(1) of the Elections Act, 2017. By an order made on 20.02.2023
the President has appointed 09.04.2023 to be the date for the holding of
the general elections in both Provinces and has called upon the Election
Commission to fulfill its constitutional and statutory obligations in this
regard.
7. More than one month has now elapsed since the dissolution of
the Provincial Assemblies and it seems prima facie that even the matter
of appointing the date of the general elections which is the first step
towards the holding of the elections, has still not been resolved.
Constitutional authorities appear to hold divergent, and perhaps even
conflicting, views on the issue. Thus, several Federal Ministers appear
to have contested the authority asserted by the President. Since
Ministers act under the constitutional rule of collective responsibility it
appears, prima facie, that this is the view taken by the Federal Cabinet
as a whole. There is, to put it shortly, a lack of clarity on a matter of
high constitutional importance. It is also to be noted that statements
attributed to the Election Commission have appeared in the public
record to the effect that it is not being provided the requisite assistance
and support, in particular by the provision of necessary funds,
personnel and security, as would enable it to hold the general elections
in accordance with the Constitution.
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8. Having considered the above, and the material placed before me,
I am of the view that the issues raised require immediate consideration
and resolution by this Court. Several provisions of the Constitution
need to be considered, as also the relevant sections of the Elections Act.
In particular, the issues involve, prima facie, a consideration of Article
17 of the Constitution and enforcement, inter alia, of the fundamental
right of political parties and the citizens who form the electorates in the
Punjab and KPK Provinces to exercise their right to elect
representatives of their choice to constitute fresh Assemblies and
Provincial Cabinets. This is necessary for government in the two
Provinces to be carried on in accordance with the Constitution. These
matters involve the performance of constitutional obligations of great
public importance apart from calling for faithful constitutional
enforcement.
9. Accordingly, I hereby invoke the suo motu jurisdiction of the

Court under Article 184(3) of the Constitution and constitute a nine
member Bench to consider, if so deemed appropriate, inter alia, the
questions set out below. The Bench shall comprise of the following
Hon’ble Judges:
Mr. Justice Umar Ata Bandial, CJP

Mr. Justice Ijaz ul Ahsan
Mr. Justice Syed Mansoor Ali Shah
Mr. Justice Munib Akhtar
Mr. Justice Yahya Afridi
Mr. Justice Sayyed Mazahar Ali Akbar Naqvi
Mr. Justice Jamal Khan Mandokhail
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Athar Minallah
10. The questions referred for the consideration of the Hon’ble

Bench if so deemed appropriate are, inter alia, as follows:
a) Who has the constitutional responsibility and authority

for appointing the date for the holding of a general
election to a Provincial Assembly, upon its dissolution in
the various situations envisaged by and under the
Constitution?
b) How and when is this constitutional responsibility to be

discharged?
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c) What are the constitutional responsibilities and duties of

the Federation and the Province with regard to the
holding of the general election?
11. The Office is directed to register an appropriate Suo Motu Case

in the above terms and fix the same along with the petitions pending in
the Court as noted above, and fix the same before the Hon’ble Bench on
23.02.2023 at 2:00 pm.
Sd/-
Chief Justice
22.02.2023.
Addl. Registrar (Judicial)

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1

The Office has placed before me a request by a learned two

“…7. We note that the Provincial Assembly of Punjab stood

8. In view of the fact that this matter is not before us in

9. To the extent of Civil Petition No. 3988 of 2022

2. The context of the request is that the Punjab and Khyber

3. Almost immediately after the dissolution of both Assemblies a

4. In respect of the appointment of the date for the holding of the

5. Apart from the foregoing, it appears that several petitions were

6. There is another material development in the last few days. It

9. Accordingly, I hereby invoke the suo motu jurisdiction of the

Mr. Justice Umar Ata Bandial, CJP

10. The questions referred for the consideration of the Hon’ble

a) Who has the constitutional responsibility and authority

b) How and when is this constitutional responsibility to be

c) What are the constitutional responsibilities and duties of

11. The Office is directed to register an appropriate Suo Motu Case

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