LAHORE : A larger bench of the Lahore High Court (LHC) comprising Justice Sadaqat Ali khan, Shahid Jamil Khan, Sheram Sarwar Ch and justice Said Mahmood Seithi , on Thursday ordered recounting of vote casted on April 10, 2022 excluding 25 votes of the members of Punjab assembly who fell under defection clause for floor crossing to vote for Pakistan Muslim League Nawaz (PML-N) candidate Hamza Shahbaz Sharif in the chief minister election.
The LHC issued a short order in the case . It said 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 Minister held on 14th April 2022.
The order added that It is an undeniable fact that 25 members of Pakistan Tehreek-e-Insaf (PTI) 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) hasno force. The emphasised part of the order, 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 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 the 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 July 1, 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 an 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.
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.
Justice Said Mahmood Seithi differed with other members of the bench and noted the following dissenting note
“I am partly not in agreement with the majority decision and have
appended separate note”:.
Pakistan Tehreek e Insaf (PTI,) chairman , Imran Khan later spoke to a TV anchor and announced to challenge the LHC verdict in the Supreme Court on Friday.
