Syed ZAFAR ALI SHAH vs FEDERAL GOVERNMENT OF PAKISTAN And ANOTHER

ORDER

1. Central point of the petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan by a practising Advocate of this Court and a citizen of this country pertains to the imperatives of taking a fresh oath of office prescribed for the office of President in the Third Schedule of the Constitution by the Chairman of Senate called upon to act as President of Pakistan in the event of a vacancy caused in the office on account of the eventualities visualized by the Constitution in its Article 49. The point arose in the following set-up of the events.

2. The President of Pakistan resigned from his office on July 18, 1993. The resignation was tendered in terms of sub-Article (3) of Article 44 of the Constitution. Upon the vacancy having been created in the above act of the President, the Chairman of Senate in terms of Article 49 (1) of the Constitution immediately took over the office of President and commenced acting as President of Pakistan.

3. Thus, the vacancy in the office of President was filled in accordance with the dictates of the Constitution, leaving no vacuum in the office of Head of the State. It is common ground that fresh oath of office prescribed for the President in the Third Schedule of the Constitution of Pakistan was not taken by the Chairman of Senate in terms of Article 42 of the Constitution. The gravamen of the petitioner summed up in the petition is that without taking the prescribed oath in Third Schedule of the Constitution, the Chairman of Senate could not have entered upon the office of President either to act as President or to perform the functions of the office of President. .A direction in the nature of prohibition, certiorari, quo warranto and mandamus is sought for "to restrain respondent No.2 Mr. Wasim Sajjad, Chairman of Senate, Islamabad to act as President of Pakistan and to perform the functions of the office; to quash the acts performed and actions taken by him after July 18, 1993; to call upon him to show under what authority of law he claimed to hold the office of President of Pakistan and a direction be issued to him to make the oath before the Chief Justice of Pakistan in the form set out in the Third Schedule of Constitution of Pakistan".

4. Writ petition came up for hearing before my learned brother, Munir A. Sheikh,.J. in vacations on 25- 7-1993. He ordered for comments from respondent No.l and adjourned the hearing to 7-8-1993. On the adjourned date of hearing, the writ petition was placed before my learned brother Ijaz Nisar, J.

5. Since the required comments were not received, the matter was further adjourned to 21-8-1993. On this date of hearing, having regard to the nature of the writ petition and the prayers continued in it affecting the highest office of the State, I decided to hear the writ petition; issued urgent notice to the Attorney-General of Pakistan; Deputy Attorney-General of Pakistan; and the Law Officer of the Province of Punjab available at the Bench to appear and assist in sorting out the matter. Raja Muhammad Akram, Senior Advocate, who happened to be present in Court, was called upon to act as amicus curiae. It may be observed that the comments from respondent No.l were already received in Court and were on its file. The matter was yet in motion.

6. Petitioner himself addressed arguments in support of the writ petition. Learned Deputy. Attorney- General and the Assistant Advocate-General assisted on behalf- of respondents. Neither the Attorney-General nor the amicus curiae could be available to the Court for benefit of the arguments from them.

7. Petitioner contended that in scheme of Chapter 1 of Part III of the Constitution of Pakistan relating to the office of President, the President was required to make the oath in the form set out in the Third Schedule before entering upon his office. Referring to Article 255 (3) of the Constitution, it was contended that the President shall be deemed to have entered upon the office only on the day on which he made the oath. His argument was that without taking the prescribed oath of office set out in Third Schedule, the Chairman of Senate could not enter upon the office of President to act and perform his functions. He referred to the qualifications laid down for the office of President and the oath prescribed for him in Third Schedule to make out a point that unless the Chairman of Senate conformed to the mandatory Constitutional requirements, he could not legally act or perform the functions of the President in the event of a vacancy created in the office of President in the manner indicated in Article 49 of the Constitution of Pakistan. He made pointed comparison between the prescribed oaths of office for the President and Prime Minister of Pakistan with the oath -of office prescribed for the Speaker of National Assembly, or the Chairman of Senate. Petitioner argued that the Constitution required that the President of Pakistan shall be a Muslim and similar requirement was shared by the Prime Minister of Pakistan. As for the Speaker of National Assembly or the Chairman of Senate, this requirement was inapplicable. Relying upon the difference in qualifications for the offices of President and the Prime Minister ,on the one hand and Speaker of National Assembly and Chairman of Senate on the other hand, the petitioner submitted that in the event of casual or temporary vacancy in the office of President

(c) Interpretation of Constitution--- ----Court is required to harmonize various provisions of the Constitution for avoiding possible conflict in them and produce synthesized result.

(d) Constitution of Pakistan (1973)--- ----Art. 260---Powers of Acting President---Acting President has all the powers of the elected President whose vacancy he was filling in. Petitioner in person. Mumtaz Ali Mirza, DA-G. for Respondents. Syed Savad Hussain Shah, AA-G. (on Court's call). revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.