1993 PLP 2360 (CLC)

2. Since there is difference between the Cabinet appointed under Article 91 of the Constitution and the Caretaker Cabinet appointed by the President in his discretion under Article 48 (5) (b) of the Constitution, it would be for the competent authority to determine as to whether members of Care‑taker Cabinet are covered by the definition of `Service of Pakistan' or not. The question is accordingly referred to the Chief Election Commissioner for his opinion.

3. The original petition of Haji Muhammad Saifullah Khan is enclosed herewith. (Sd.) 6‑7‑1993 (GOHAR AYUB KAHN) Speaker, National Assembly of Pakistan."

3. Notices were issued to all 29 respondents through registered post as well as through electronic media.

4. I have heard Haji Muhammad Saifullah Khan at great length and Mr. Aitzaz Ahsan, Advocate,, for himself and on behalf of 16 members of the National Assembly, who were present, and also Mr. Iqbal Ahmed Khan, Advocate.

5. It would appear from the above‑quoted Reference that the question referred under Article 63 (2) of the Constitution to the Chief Election Commissioner, is whether members of Care‑taker Cabinet are covered by the definition `Service of Pakistan' or not. Under the Article 63 (2) of the Constitution, the Chief Election Commissioner has jurisdiction to decide the question whether a Member of Majlis‑e‑Shoora has become disqualified from being a member. It further provides that if such a question arises the Speaker or as the case may be, the Chairman shall refer the question to the Chief Election Commissioner.

6. It is fairly and justly conceded by Haji Muhammad Saifullah Khan that the question referred to by the Speaker is not in accordance with the Article 63 (2) of the Constitution. He submitted that he would hove asked the Chief Election Commissioner to refer this question back to the Speaker for framing the question afresh in accordance with the Constitution Pd the petition filed by him, but now since the National Assembly is dissolved and the respondents are no more members of the Assembly, it would be futile exercise if such a course is adopted.

7. It was therefore not considered necessary to decide the Reference on merits. However, Mr. Aitzaz Ahsan insists that the matter may be decided on merits. In his request Mr. Iqbal Ahmed Khan, Advocate, joins. At this stage it was brought to my notice by Haji Muhammad Saifullah Iran that the Supreme Court of Pakistan in the case of Mr. Muhammad Nawaz Sharif v. President of Pakistan and others, PLD 1993 SC 473, while declaring the Order of dissolution of National Assembly void and of no legal effect, also declared all the consequential steps taken under the order of dissolution of National Assembly to be of no legal effect. It would be convenient to reproduce the relevant portion from the concluding paragraph of the judgment, which is as follows:‑‑ "All steps taken pursuant to the Order, dated 18-4‑1993, under Article 58 (2) (b) of the Constitution including the appointment of Care‑taker Cabinet and Care‑taker Prime Minister are also declared of no legal effect."

8. I am therefore, of the view that since the appointment of Care‑taker Government was void, therefore, the Care‑taker Prime Minister and the A members of his Cabinet could not to have incurred any liability under Article 63 (k) of the Constitution. Therefore, for all the aforesaid reasons, Reference has become infructuous and disposed of as such. M.B.A./82/E Order accordingly.