Legal Principle & Question Decided

Ruling Summary: This decision was rendered by the Peshawar High Court on 2024-03-27, officially reported as 2024 PHC 290. In this matter between Shazia Tehmas Khan etc and Federation of Pakistan and others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.

Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.

Full Judgment Text & Judicial Ruling

Court Name: Peshawar High Court Judge(s): Syed Muhammad Attique Shah, Shakeel Ahmad Title: Shazia Tehmas Khan etc vs Federation of Pakistan and others Case No.: Writ Petition No. 1617-P/2024 Date of Judgment:2024-03-27 Reported As: 2024 PHC 290, PLD 2025 Peshawar 125 Result: Petition Allowed

JUDGMENT

JUDGMENT S.M. ATTIQUE SHAH, J.-Through this single judgment, we propose to decide the present Writ Petition No.1617-P/2024, titled Shazia Tamash etc. vs. Speaker Provincial Assembly etc. and the connected Writ Petitions No.1622-P/2024, titled Mehr Sultana etc. vs. Election Commission of Pakistan etc. & No.1625-P/2024, titled Aiman Jalil etc. vs. Speaker Provincial Assembly etc. as common questions of law and facts are involved in all these petitions, wherein the petitioners being returned candidates on reserved seats for women and non-Muslims in Provincial Assembly of Khyber Pakhtunkhwa have asked for issuance of an appropriate writ directing the worthy Speaker Provincial Assembly to administer oath to them well before the forthcoming Senate Election, which is scheduled for 2nd April, 2024, so as to enable them to participate and cast their votes therein. 2. Brief history of the case is that after being declared the intra-party election of the Pakistan Tehreek-e-Insaf (PTI) as illegal by the worthy Election Commission of Pakistan (ECP), its candidates contested the General Elections, 2024 as independent candidates on 08.02.2024 against the general seats of the National and Provincial Assemblies and accordingly, they were notified as independent candidates by the ECP vide Notification dated 16.02.2024. In terms of Article 51 read with Article 106 of the Constitution, an independent returned candidate has to join any political party within three days of the issuance of notification, that is how, all the returned / PTI-backed candidates joined the Sunni Ittehad Council "SIC" in the National as well as Provincial Assemblies, whereafter, the "SIC" approached the worthy ECP through an application for allocation of reserved seats in all the Assemblies, which was treated as a case bearing No.F(14)12024-Law-II and

---

## Page 2

accordingly was decided with identical applications by the worthy ECP vide order dated 01.03.2024 while rejecting the claim of SIC for allocation of reserved seats. Pursuant thereto, the names of the petitioners were duly notified as returned candidates for the seats reserved for women and non- Muslims vide notifications dated 04.03.2024, 20.03.2024 and 22.03.2024 respectively. Being aggrieved from the ibid decision of the worthy ECP, the "SIC" challenged the same before this court through Writ Petitions No.1272-P and No.1339-P of 2024, which were dismissed by the Larger Bench vide judgment dated 14.03.2024. Due to reluctance of the worthy Speaker to administer oath to the petitioners, the worthy Governor Khyber Pakhtunkhwa spurred into action and vide order dated 20.03.2024 summoned the Provincial Assembly to meet on 22.03.2024 at 03:00 p.m., in the Assembly Building of the Provincial Assembly of the Khyber Pakhtunkhwa, for administering Oath to the Members, who were elected against reserved seats. Being aggrieved, purportedly from non-compliance thereof by the worthy Speaker, the petitioners are before this court with their grievance. Submissions of learned counsel for the petitioners 3. M/s. Amir Javed, Barrister Saqib Raza, Muhammad Tariq Afridi and; Muhammad Farooq Afridi, Advocates representing the petitioners contended that once the petitioners have been duly notified as returned candidates for the seats reserved for women and non-Muslims, the speaker is duty bound to administer them oath under Article 65 of the Constitution being their constitutional right. Rather the worthy Speaker, they added, has totally misconstrued the ibid provision of law in its true perspective as there is no need of requisitioning full-fledged session of the assembly for administering oath to its members because term "House" mentioned therein does not denote session in any manner. Next argued that by virtue of Article 109 of the Constitution, it is the discretion of the worthy Governor to summon or prorogue the Provincial Assembly, which powers have rightly been exercised by him on 20.03.2024. Lastly, they asked for the issuance of directions to the worthy Speaker to administer oath to the petitioners as members of the Provincial Assembly being their constitutional right enabling them to participate and cast their votes in the forthcoming Senate Election notwithstanding they have already been deprived of such right in the presidential election. Placed reliance on the judgments reported in the cases of Chaudhry Pervez Elahi vs. Deputy Speaker, Provincial Assembly of Punjab (PLD 2022 SC 678); Pakistan Peoples Party Parliamentarian (PPPP) through its Secretary General etc. vs. Federation of Pakistan through, Ministry of Law etc (PLD 2022 SC 574); Pakistan Muslim League vs. Sardar Dost Muhammad Mazari etc. (PLD 2022 Lah 469); Muhammad Hamza Shahbaz Sharif vs. Federation of Pakistan etc. (PLD 2022 Lah 504); Muhammad Hamza Shahbaz Sharif vs. Federation of Pakistan throu2h Secretary, Ministry of Law & Justice etc. (PLD 2023 Lah 105); Muhammad Irshad vs. Government of Khyber Pakhtunkhwa through Local Government etc. (PLD 2016 Peshawar 170). Mr. Sana Ullah, the worthy Deputy Attorney General while relying and supporting such contentions has submitted that the phrase "House" does not signify session of the Assembly, rather, the same denotes towards the premises of the Provincial Assembly in terms of Article 65 of the Constitution and nothing more, and the reluctance of the worthy Speaker to administer oath to the petitioners is beyond comprehension in the given circumstances, as he is duty bound under the law to administer oath to an elected member immediately when his membership is notified by the Commission. He also supported the contention of the petitioners qua requisition of the session of the Assembly by the worthy Governor being in line with the provision of Article 109 of the Constitution. Submissions of learned Advocate General and Learned counsel for the worthy Speaker 4. M/s Shah Faisal Utmankhel, the worthy Advocate General, Khyber Pakhtunkhwa, Muhammad Bashar Naveed and Rehmat Ali Khan, the learned AAGs representing the Provincial Government assisted by Mr. Ali Azim Afridi, Advocate representing the worthy Speaker, Provincial Assembly,

---

## Page 3

vehemently argued that in terms of Article 105 of the Constitution, the worthy Governor is duty bound to act on the advice of the Cabinet, or the Chief Minster and even for summoning session of the Provincial Assembly, the same procedure will be adopted, as such, he cannot go beyond it of his own and that too without fulfillment of the legal requirements as envisaged under Article 54(2) & (3) of the Constitution. The worthy Governor only on two occasions, they emphasized, would be competent to call for session, firstly, after the general elections when the government has not yet been formed and; secondly when no confidence motion is moved against the Chief Minister, otherwise not, which is not the case here, as such, he has overstretched his authority, so vested in him which is against the mandate of the Constitution. They further emphasized that as per Schedule-V of Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985, even case of summoning and prorogation of Assembly, is to be routed to the worthy Governor through the worthy Chief Minister. Next argued that after the General Elections, 2024, first session had already been held on 28.02.2024, as such till completion of 120 days as per law, another session cannot be summoned until and unless fulfillment of mandatory provisions of Clause (2) of Article 54 read with Clause (2) of Article 130 of the Constitution. Further maintained that the petitioners, who have never been denied oath, would make oath in the next session as and when session is convened in accordance with law by the worthy Chief Minister. Further argued, that such sort of interference of the worthy Governor itself would redundant the entire scheme of parliamentary democracy notwithstanding the same having no legal backing at all, hence, such directions are not binding upon the worthy Speaker. Placed reliance on the judgments reported in the cases of Mian Muhammad Nawaz Sharif vs. President of Pakistan etc. (PLD 1993 SC 473); Al-Jehad Trust through Raees-ul-Mujahidin Habib Al-Wahabul Khairi, Advocate etc. vs. Federation of Pakistan etc. (PLD 1997 SC 84); Watan Party etc. vs. Federation of Pakistan etc. (PLD 2011 SC 997); Messrs Mustafa Impex, Karachi vs. Government of Pakistan through Secretary Finance (PLD 2016 SC 808) and a judgment of the India jurisdiction reported in Writ Petition (Civil) No.1224 of 2003, titled State of Punjab vs. Principal Secretary to the Governor of Punjab etc., decided on 10.11.2023. 5. Heard. Record perused. 6. From the aforesaid legal discourse, the following questions cropped up for determination of this Court. a) Whether the administration of oath to the petitioners before the House can be withheld for an indefinite period after being notified as returned candidates? b) Whether the inaction of the worthy Chief Minister and the worthy Speaker to take material steps for administering oath to the petitioners can be justified? c) Whether any time frame for administrating oath to the returned candidates against seats reserved for women and non-Muslims has been provided by the Constitution and Elections Act, 2017 and rules framed thereunder? d) Whether oath can be administered to the petitioners at the place other than the House in absence of any session? e) Whether summoning of the session of the Provincial Assembly is the discretion of the worthy Governor in terms of Article 109 of the Constitution which can be exercised by him independently or it is subject to the advice of the Cabinet or the Chief Minister in terms of Article 105 of the Constitution read with Schedule-V of Rule 36(1)(a) of the Khyber Pakhtunkhwa Government Rules of Business, 1985.? 7. Our Constitution is based upon the principle of trichotomy of powers i.e. Legislature, Executive and; Judiciary. Each of them has its separately defined functions. The Legislature is assigned the role to legislate laws. Likewise, the Executive to execute laws and; similarly the Judiciary to interpret the laws. This trichotomy of power is so essential and important that it is said to be a basic feature

---

## Page 4

of the Constitution. Upon entering office, the notified members of the Legislature, Executive and superior judiciary take mandatory oath of their respective offices as prescribed by Articles 65 & 255 read with third schedule of the Constitution which shall be administered to them by the nominated persons. The purpose of the oath is that the person concerned must give an undertaking to bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of the nation. It is settled that oath is to ALLAH ALMIGHTY and surely not to the person who is administering such oath, rather the person who discharges such obligation only performs an administerial obligation required by the Constitution, therefore, when such person is incapable or is not willing to administer oath or when it is impracticable for him by any reason or he is avoiding to discharge such responsibility, then, surely he would be transgressing the Constitutional mandate bestowed upon him. 8. In the context of the members of Assemblies, usually, the first sitting of a newly elected House is dedicated to oath taking by members and election of the Speaker. Members first make oath as prescribed by the above referred provisions of the Constitution and then sign the Roll of Members in terms of Rule 6 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988. Before a member takes his seat in the House, he must take and subscribe an oath or affirmation in the prescribed form, without doing so, he cannot act in any manner as a member of the Assembly. Having said the above, we would now proceed to answer the above formulated questions. 9. As the contesting parties have assisted this court by expressing their opinion regarding the interpretation of various Articles of the Constitution in support of their respective contentious submissions, therefore, in order to arrive at a correct interpretation of such provisions we deem it appropriate to refer to the principles of interpretation of Constitution expounded by the apex court. As of now, it is well-settled that the Constitution must be read organically and holistically. While interpreting its various Articles and Clauses, the rule of Organic Construction is to be applied. Individual Articles and Clauses cannot be read and interpreted in isolation from the rest of the Constitution. The meaning of the Constitution is to be gathered from the Constitution as an integrated whole. The rule of Organic Construction and being a living document was discussed by the Apex Court in the case of Munir Hussain Bhatti[1] the following manner:- 21. We have been guided by precedent to follow the rule that individual Articles or clauses of the Constitution, if read in isolation from the rest of the Constitution, may mislead the reader. This is so because the meaning of the Constitution is to be gathered from the Constitution as an integrated whole, based on reason. The logic and wisdom of this approach should be self evident, but can be highlighted for the edification of those inclined to a contrary view focused solely on an insular reading of Article 175A. This can be done by narrating a simple tale from the enlightened tradition of our sages. In his Masnavi Maulana Jalaluddin Rumi recounts the story of five men on a dark night who, groping and touching different parts of an elephant's anatomy, construct an image of the animal variously as a fan (by the one who managed to touch only its ears), a tree trunk (by the other getting a feel of its leg), a gargoyle (by yet another who touched and felt its snout) and so forth. The inability of each man to look at the elephant holistically is obvious. As the Maulana says, these men in the dark did not have a lamp to show them that the elephant was one composite organism, whose constituent components were to be seen together if the whole was to be understood, without errors of perception. The Greek ancient, Hippocrates (quoted by Eduardo Galeano in his book "Mirrors"), in the same vein, said that "the nature of the parts of the body cannot be understood without grasping the nature of the organism as a whole". It is, therefore, crucial for us, consistent with reason, to look at the Constitution as a whole if we are to make sense of Article 175A 'organically'. Looking at the Constitution any other way would lead the reader astray.

---

## Page 5

22. The rationale for this rule is also universal and transcends the divide between the various prevalent systems of law. Thus it is that we have common law constitutionalists such as Laurence Tribe and Michael Dorf warning us against "approaching the Constitution in ways that ignore the salient fact that its parts are linked into a whole that it is a Constitution, and not merely an unconnected bunch of separate clauses and provisions with separate histories that must be interpreted. "(Tribe, Lawrence H.; Dorf Micheal C.,"Chapter 1: how not to read the Constitution" on reading the Constitution, Harvard University Press, Cambridge, 1991). This very same logic also informs the comment of a scholar like Dr. Conrad from the European Civil Law tradition, who reminds judges and lawyers "that there is nothing like safe explicit words isolated from a general background of understanding and language. This is particularly so in the interpretation of organic instruments like a Constitution where every provision has to be related to the systemic plan, because every grant and every power conferred is but a contribution to the functioning of an integrated machinery... it will not do to discuss such concepts as [mere] 'political theory' irrelevant to textual construction ". ("Limitation of Amendment Procedures and the Constituent Power; " the Indian Yearbook of International Affairs, 1967. P.3 75) 23. Undeniably, Article 175A fits into, and has to be read as part of the larger Constitutional scheme and not as an insular "bunch of separate clauses and provisions", or as a self-contained island within the Constitution, unconnected with its other parts. The importance of reading the Constitution as an organic whole, in the context of these petitions, will become more apparent in the succeeding sections of this opinion. 10. The august Apex Court in case of District Bar Association Rawalpindi's[2] had also thoroughly examined and discussed the principles of interpretation and recommended the following guidelines for interpretation of the Constitution: (a) The Constitution should be read as a whole. (b) Effect should be given to every word, paragraph, clause and article of the Constitution and redundancy should not be imported thereto. (c) If there are two provisions of the Constitution attending to similar matters, the particular provision excludes the general provision. (d) If there is a conflict between two provisions of the Constitution and one of them was inserted when the Constitution was abrogated, subverted, suspended or held in abeyance then the conflicting provision which was in the Constitution prior to the said abrogation, subversion, suspension or abeyance is to be preferred if it is closer to the provisions of the Preamble. (e) Parliamentarians, who adorn the House after the promulgation of the 1973 Constitution or will do so in the future, do not have the constituent powers of the first parliamentarians, therefore, they cannot amend the Constitution in a manner that contravenes the provisions of the Preamble to the Constitution, and in particular any amendment that may abolish, take away or abridge any of the fundamental rights of the people. (f) The Constitution and its Preamble are built on a trichotomy that separates powers between the Legislature, the Executive and the Judiciary, and each one must operate within its respective domain. Thus, whilst the Legislature is fully empowered to make laws or amend the Constitution it is the superior Courts that will ascertain their constitutionality and interpret them because the Constitution itself has empowered them. 11. Admittedly, the petitioners are duly notified returned candidates against the seats reserved for women and non-Muslims. Until and unless the petitioners make oath of their offices as prescribed by Article 65 of the Constitution which shall be administered by the worthy Speaker before the house or any other person duly nominated by him in terms of Article 255 thereof, neither they can sit in the house, nor can they participate in the proceedings of the Assembly in any manner. For ease of reference, both Articles are reproduced below:-

---

## Page 6

65. A person elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule. 255.(1) An oath required to be made by a person under the Constitution shall [preferably be made in Urdu or] a language that is understood by that person. (2) Where, under the Constitution, an oath is required to be made before a specified person and, for any reason, it is impracticable for the oath to be made before that person, it may be made before such other person as may be nominated by that person. (3) Where, under the Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath. 12. Rule 6 of the Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 also deals with the Oath and signing of Roll of Members which reads as under: 6. Oath and Roll of Member.--A Member shall not sit or vote in the Assembly unit he has made before the Assembly an oath as required by the Constitution, and he shall also sign the Roll of Members. 13. The term 'House' used in Article 65 of the Constitution has been defined in Article 63-A(7)(a) & 260 of the Constitution, which reads as follows:- 63-A(7)(a) "House" means the National Assembly or the Senate, in relation to the Federation; and a Provincial Assembly in relation to the Province, as the case may be." 260. "House" means the Senate or the National Assembly.

14. Now, the arguable question before the Court is the interpretation of the ibid Articles and Rule 6 of the Oath and singing of Roll of Members. Employing the above referred interpretive guideline(s) to the ibid Articles of the Constitution and; rules, effect should be given to every word, paragraph, clause, and Article of the Constitution, and redundancy should not be imported thereto. The bare reading of the ibid provisions imparts that a Member shall not sit or vote in the Assembly until he has made before the Assembly an oath as required by the Constitution and signed the Roll of Members. Upon reading Articles 65 & 255 in juxtaposition with Articles 63-A(7)(a) & 260 and thoroughly examining the above referred provisions, we understand that the language of the ibid provisions is clear enough, as such it does not require any outside or extrinsic aid to determine their meaning. It is a well recognized and accepted principle of construction of statutory and Constitutional law that in case the language is clear, no outside or extrinsic aid can be applied and; brought to determine its meaning. Durrani Ceramics[3]. In the given situation, we have no hesitation in determining that administering oath to the newly elected members is not only mandatory but the same must be before the house i.e. before the concerned Assembly, as the case may be. To be precise, administering oath before the house and signing the roll of members are sine qua non for an elected member to sit in the house and; participate in the assembly proceedings therein including the casting of votes in the Presidential and; Senate elections which is his vested and; fundamental right, otherwise, he has no authority at all to sit or perform any of the aforementioned acts. 15. Granted, that the Constitution and the Elections Act, 2017 and rules framed thereunder and; Provincial Assembly of Khyber Pakhtunkhwa Procedure and Conduct of Business Rules, 1988 have stipulated no specific period of administering oath to the members of the Parliament, however, it does not mean that either the same can be denied to them or delayed in any manner. Section 98 of the Act, 2017 prescribes fourteen days period for publication of the names of elected candidates in the official Gazette. While Article 130(2) stipulates that Provincial Assembly shall meet on the twenty-first day following the day on which a general election to the Assembly is held, unless sooner summoned by the Governor. The ibid provisions clearly denote the intention of the framers

---

## Page 7

of the Constitution regarding swift and early completion of the post-election process which obviously starts from meeting of the Assembly. Certainly, the first obligation upon meeting of the House is to administer oath to the elected members as without oath neither a member can sit in the house, nor can he participate in any of its proceedings. In the given circumstances, it can easily be inferred from the provisions of Articles 65, 255 & 130(2) that the oath is to be administered within twenty-one days of the notification of the returned candidates before the house. Any delay or denial to administer oath to an elected member beyond this period would be a serious infringement of his fundamental rights, besides, negation of such rights to the constituency who has elected such person, resulting into non-representation of the whole constituency in the Assembly which is against the very concept of parliamentary democracy, as the voters upon electing their representatives invested them with all the Legislative and Constitutional powers to be exercised by such representatives. The principle of parliamentary democracy as embedded in the constitution runs through the Constitution like a red thread and writ large in all provisions dealing with the form of government. The very preamble of the Constitution enjoins the formation of this constitutional order upon will of the people and sovereignty is a sacred trust, and authority is to be exercised by people through its chosen representatives of the people. Under the Constitutional scheme, the people, while electing their representatives, invested such representatives with all the legislative and constitutional powers to be exercised on their behalf and did not reserve right to be consulted before…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Peshawar High Court
• Browse Pakistani court decisions from the year 2024
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant