PESHAWAR: A Peshawar High Court bench on Wednesday directed the Khyber Pakhtunkhwa advocate general to file reply within three days to a writ petition challenging the appointment of retired Justice Dost Mohammad Khan as caretaker chief minister of the province.

The bench issued the order after preliminary hearing of the petition filed by a lawyer, Syed Azizuddin Kakakhel, who contended that the appointment was contrary to articles 62 and 63 of the Constitution as well as the National Judicial Policy 2009. The bench decided to hear the case again on June 27.

The petitioner has requested the court to declare the said appointment as illegal and direct the respondents including the President of Pakistan and Chief Election Commissioner of Pakistan to appoint another caretaker chief minister according to Articles 62 and 63 of the Constitution.

PHC bench fixes June 27 for next hearing

The petitioner requests the court that as interim relief the caretaker chief minister may be restrained from functioning till final disposal of the writ petition.

The petitioner contended that Justice Dost Mohammad Khan retried as a judge of the Supreme Court on March 20, 2018, and assumed the office of caretaker chief minister on June 6, 2018. He said that the mandatory two years had not passed since Justice Dost Mohammad had retired, therefore, he could not assume any public office.

Advocate General Abdul Lateef Yousafzai contended that the condition of two years did not apply to the office of caretaker chief minister. He said that the condition was for the purpose of contesting polls.

He argued that there was a difference between caretaker chief minister and a chief minister as the later must be member of the assembly and qualification required for a parliamentarian and member of provincial assembly was given in articles 62 and 63.

The petitioner contended that the office of caretaker chief minister was a political office and whenever a person was appointed on that post he took oath under the Constitution. He said that under the Constitution of Pakistan he was bound to fulfil the requirement given in articles 62 and 63 of the Constitution.

He said that a person should be disqualified from being elected or being chosen as member of the parliament if he had been in the service of Pakistan or of any other statutory body unless a period of two years had elapsed since he ceased to be in service.

Moreover, he stated that as per National Judicial Policy 2009 no retired judge of the Supreme Court should accept an appointment, which was lower to his status or dignity.

The respondents in the petition are: caretaker chief minister retired Justice Dost Mohammad Khan; Chief Election Commissioner of Pakistan; Provincial Election Commissioner KP; KP government through its chief secretary; KP governor through his secretary and President of Pakistan through his secretary.

Published in Dawn, June 21st, 2018