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P L D 1997 PESHAWAR 93

AFTAB AHMAD KHAN SHERPAO

V/S

SARDAR FAROOQ AHMAD KHAN LEGHARI

Per Qazi Muhammad Farooq, J.

(a) Constitution of Pakistan (1973), Article 248

The President of Pakistan and the Governor, N.-W.F.P. were arrayed as respondents in both the petitions. At the preliminary stage of the proceedings two C.Ms. (Nos. 1693 and 1669 of 1996) were moved for deletion of their names from the panel of the respondents on the ground of Constitutional immunity envisaged by Article 248 of the Constitution but the same were not allowed in view of the allegations concerning mala fides of fact and of law and the observations made in Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1092 that if mala fides of fact are pleaded then the person concerned must be impleaded as a party in spite of the protecting provisions of the Constitution. Thereafter, written statements were filed on behalf of the President of Pakistan wherein the contentions raised in the written statement filed by the Federation of Pakistan were reiterated and the allegations that the appointment of the Governor was made conditional upon his agreement to dissolve the Assembly and that the Chief Secretary of the Province had been directed to prepare a charge-sheet against the Provincial Government were categorically denied. It was also added that the approval was accorded in view of the soundness of the opinion formed by the Governor. [p. 105] A

(a) Constitution of Pakistan (1973) Arts. 104, 101(5) & 102–

The contention hardly needs any serious consideration because the oath of office taken by the Governor was valid by all standards and did not offend against the Constitutional provisions on the subject. It is now well-settled that a Chief Justice acting as Governor does not cease to be the Chief Justice. It was held in Mr. Zulfiqar Ali Bhutto. v. The State (PLD 1978 SC 40) that temporary appointment of Chief Justice of High Court as Acting Governor does not amount to vacation of office of Chief Justice by incumbent of that office. In Messrs Pervaiz Industrial Corporation v. Messrs New Lahore Transport Co. and 3 others (PLD 1975 Karachi 88) it was observed that the Chief Justice of High Court can hold any other office in addition to his own duties if his remuneration is not thereby increased, that the Chief Justice acting as Governor does not cease to be Chief Justice and that in the event of his appointment as Acting Governor the Chief Justice does not vacate the office of the Chief Justice, therefore, there is no necessity of a fresh oath of office. Hon’ble the Chief Justice, Peshawar High Court was appointed as the Acting Governor to discharge the functions of the Governor within the import of Article 101(5) of the Constitution in view of the contingency caused by the resignation of the ex-Governor Major-General (Retd.) Khurshid Ali Khan, therefore, in the wake of appointment of Lt.-Gen. (Retd.) M. Arif Bangash as the Governor and his availability at Peshawar for taking the oath of office the stopgap arrangement hand come to an end and his Lordship had automatically ceased to hold the office of the Acting Governor and assumed the office of the Chief Justice, Peshawar High Court for which a fresh Oath was not required. It is scarcely necessary to mention that if the office of the Governor had not become vacant automatically the newly appointed Governor would not have been in a position to take oath of office for the simple reason that unless an office is vacant the new incumbent cannot enter upon it. In any case the validity of the oath of office of the present Governor and assumption of the office of the Governor by him have been challenged collaterally and nor directly which is not permissible. The present Governor having assumed the office of the Governor was bound to perform the functions of the Governor and as such the action taken by him is fully protected by the de facto doctrine which was recognised by the Supreme Court of Pakistan. [p. 107, 108] B

PLD 1989 SC 75 : Zulfiqar Ali Bhutto v. The State PLD 1978 SC 40 ref.

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