AFTAB AHMAD KHAN SHERPAO Versus GOVERNOR N.W.F.P.
September 26, 1990 — PESHAWAR HIGH COURT — Honorable Justice IBNE ALI — — 1990 PLD 192
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SARDAR FAKHRE ALAM, CJ.‑‑‑Detailed hereafter are the reasons for the short order made by this Court on 26th September, 1990.
2. In the evening of August 6, 1990, the Governor of North‑West Frontier Province, dissolved the Provincial Assembly in a Press Conference. It was also stated that the Chief Minister and his Cabinet had "ceased to hold office forthwith". Mr. Aftab Ahmad Khan Sherpao, being the leader of the House and the Chief Minister before the dissolution of the Assembly, has approached this Court with this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan.
3. The petitioner annexed with his petition copy of the Notification published on 7th of August, 1990, communicating to him the order of the aforesaid dissolution of the Provincial Assembly. The Notification is duly signed by the Additional Secretary Law, Government of N.‑W.F.P. which is reproduced below:‑‑
No. Legis: 4(1) of 1977.‑‑‑WHEREAS a situation has arisen in which the Government of the North‑West Frontier Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary;
NOW, THEREFORE, in exercise of the powers conferred by sub‑clause (b) of clause (2) of Article 112 of the Constitution of the Islamic Republic of Pakistan, I Amir Gulistan Janjua, Governor of the North‑West Frontier Province, in my discretion and with the previous approval of the President, hereby dissolve the Provincial Assembly with immediate effect, and consequently, the Provincial Cabinet shall also stand dissolved.
AMIR GULISTAN JANJUA GOVERNOR OF NORTH‑WEST FRONTIER PROVINCE.
Dated the 6th August, 1990.
In their written statement, respondent No.2, namely, the Province of N.‑W.F.P. specifically denied the existence of the aforesaid Notification by stating that the same "was neither approved by the President nor approved or signed by the Governor nor released to the Press by the Governor at the time of Press Conference held by the Governor on 6‑8‑1990, at evening time in the Governor's House". Instead, the respondents, filed with (heir written statement as Mark R‑2 the newspaper report of the Press Conference published in the Frontier Post of August 7, 1990. Also attached was a statement signed by the Governor of N.‑W.F.P. dated 6th August, 1990. It was stated in para.4 of the preliminary objections to the competency of the writ petition that the order of dissolution "under Article 112 of the Constitution previously approved by the President duly signed by the Governor and released to the Press at the time of Press Conference of the Governor on 6‑8‑1990 in the Governor's House is entirely different and a photo copy of the original is appended as Mark R‑1 on front page of the Frontier Post dated 7‑8‑1990 copy of which is attached as Annexure R‑2". Thus, the Court was informed that the order of dissolution was in fact Annexure R‑1 and not the Notification annexed with the petition. Strange enough, however, one S. Tanzim‑ul‑Haq Halimi, Secretary Provincial Assembly of N.‑W.F.P. who is not a party before us has conveyed to the Registrar, Peshawar High Court, through a covering letter that "respondent has attached impugned copy of Notification No. Legis; (1) of 1977, dated 6‑8‑1990 which was circulated to the Ex‑M.P.As. under my signature" and "that a corrigendum has been issued in the impugned Notification by respondent No.1 bearing the same date i.e. 6‑8‑1990 circulated under the same number dated 16‑9‑1990" received in his office on 17‑9‑1990 which was brought to his notice on 19‑9‑1990. He, therefore, felt "duly bound" t furnish copy of the corrigendum to the Registrar for the information of the Judges. The letter and the so‑called corrigendum have been placed on the record. The written statement, however, as stated earlier, has no mention of the said corrigendum but the learned counsel for respondent No.2 standing at the bar acknowledged the same and owned it too. He also, at this stage, handed over a copy of the Notification which was mentioned in the covering letter of S. Tanzeem‑ul‑Haq Halimi. The same has also been placed on the record. It is pertinent to point out here that the contents of the said Notification are not different from the contents of the Notification impugned by the petitioner and placed by him before us alongwith his petition. Confronted with the aforesaid situation Mr. Zahurul Haq came out with the reply that the original Notification which was identical to the Notification placed with this petition was a result of "human error". He was constrained to say so as the said Notification did not give any ground for the dissolution of the Provincial Assembly and one of the grave attacks made on the said Notification by the petitioner is that the impugned order of dissolution did not carry any reason for dissolution of the Assembly. This "human error", according to him, was rectified on 16‑9‑1990, When the so‑called corrigendum was issued. According to the learned counsel the corrigendum has replaced the original Notification and, therefore, he argued that the petitioner ought to amend his petition suitably to assail the corrigendum. The corrigendum carries reasons for forming the opinion of the Governor to dissolve the Assembly. Thus, we have five documents placed on the record all purporting to carry the dissolution of the Provincial Assembly.
4. The purpose of giving the above details is to reflect upon the supercillious manner in which the elected Assembly of the Province was dissolved. It also supports the allegations of the petitioner that act of dissolution of the Provincial Assembly was not based on objective consideration. As shall be presently discussed, it is also one of the elements for us to ponder as to whether the approval of the President was obtained prior to the dissolution of the Assembly as enjoined by Article 112 of the Constitution and if so what were the contents of the proposal put forward to the President for the aforesaid purpose. However, in the interest of justice, we decided to consider all the documents including the corrigendum issued on 16‑9‑1990 for the purpose of scrutiny of the nature of reasons given therein which prompted the Governor to dissolve the Assembly. How can the respondents benefit by their own mistake by asking us to punish the petitioner for not attaching with the petition the corrigendum which did not exist at the time of filing of the petition and which was brought out only after the petition was admitted for regular hearing. In any case, the corrigendum carries re‑production of the grounds given in the Press statement of the Governor on 6‑8‑1990 which was challenged by the petitioner as to be non‑existent, without any specific instance of the allegations mentioned therein, vague and general in paragraphs 6 to 8 of their petition.
S. Mr. Iftikhar Hussain Gillani, the learned counsel for the petitioner quoted extensively from the judgments of the Supreme Court reported as Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others P L D 1989 SC 166 and of the Lahore High Court in Khawaja Sharif v. Federation of Pakistan and others P L D 1988 Lahore 725. He also relied on Muhammad Anwar Durrani v. Province of Balochistan and others P L D 1989
Quetta 25 in support of his arguments. The following undisputed premises are laid down in the light of the above‑cited judgments which are not questioned by the learned counsel for the respondents. (i) Once this Court assumes jurisdiction to adjudicate the matter before it, the justicibility of the issue raised before it is beyond question, (ii) the opinion of the President under Article 58(2)(6) of the Constitution and that of the Governor under Article 112(2) of the Constitution for the exercise of the discretionary powers to dissolve the legislature has to be formed on objective grounds having nexus with the conditions laid down for the exercise of such powers and (iii) the grounds forming the opinion for the exercise of the aforesaid discretion must not only be related to the conditions laid down in the Constitution but should not be vague, general or devoid of materiel particulars.
6. However, the learned counsel for the respondents 2 and 3 struck a discordant note in the aforesaid undisputed premises by stating that the non obstante clause incorporated in Article 56 of the Constitution removing the bar of immunity from the judicial scrutiny provided under Article 48(2) of the Constitution, is not available in Article li2(2) of the Constitution dealing with the dissolution of the Provincial Assembly. Therefore, they argued that the principles laid down in the aforesaid judgments of Lahore High Court and the Supreme Court with regard to the jurisdiction of this Court to look into the vires of the dissolution order in relation to National Assembly shall not be available to us.
Article 58(2)(6) and 112(2)(6) are reproduced below:‑‑
Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,‑‑
(b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."
The Governor may also dissolve the Provincial ,Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion,‑‑
(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary."
According to them the provision of Article 48(2) which deals with the immunity of the President in the exercise of his discretionary powers confers same powers upon the Governor under Article 112(2)(6) by the provision of Article 105(5). Article 48(2) reads as follow:‑‑
(2) Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever."
7. In canvassing the aforesaid arguments the learned counsel for the respondents conveniently ignored the fact that in the above‑cited dissolution cases the question of dissolution of National Assembly alone was not agitated but the dissolution of Provincial Assembly of the Punjab was also adjudicated upon. The order of the Governor dissolving the Punjab Provincial Assembly was struck down by Lahore High Court on the ground that he "had given no reasons at all except a bald statement that the situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution", he referred neither to the situation nor furnished the reasons which led him to form an opinion that "the Government of the Province cannot be carried on in accordance with the Constitution". Such an order was found not to be suitable in law. This finding of the High Court, of course, was approved by the Supreme Court of Pakistan. In other words, the principle underlying the justicibility of the issue of the jurisdiction of the superior Courts discussed in length by both the Courts with regard to the provisions of the Constitution dealing with the President's powers to dissolve the Assembly were considered to be the same in relation to the Governor's discretionary powers to dissolve the Provincial Assembly. Furthermore, non‑obstante clause in Article 58(2) of the Constitution excluding the application of Article 48(2) from the exercise of discretion by the President in dissolving the National Assembly is not the only factor in assuming jurisdiction over the subject‑matter before us. Mr. Justice Shafi‑ur‑Rehman, after discussing at great length the superior Courts powers of judicial review stated as follows:‑‑
"There is no express ouster clause in the Constitution with regard to the exercise of this power by the President. Whatever ouster could be implied by the use of the expression in his discretion' and `in his opinion' stands removed by the use of non‑obstante clause `notwithstanding', thereby excluding the application of ouster clause contained in Article 48(2) excluding Courts' jurisdiction generally where the powers reserved for the President to be exercised in his discretion are concerned. Additionally. the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a precondition for the exercise of this power. Not to test the exercise of this power by reference to these constitutionally prescribed jurisdictional facts, namely, (i) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and (ii) an appeal to the electorate is necessary; would in fact amount to a failure to discharge a duty ordained by the Constitution itself."
(Underlining is ours).
8. It is now universally accepted principle in‑the field of judicial review that any ouster clause shall not deter the Court from looking into the statutory powers of a functionary if the same are arbitrarily exercised and in case there are statutory conditions for the exercise of their powers, the same has been exercised outside the four corners of the enabling law, or on the basis of extraneous consideration or in bad faith. Furthermore, the distinction has been made between the discretion to be exercised and the opinion to be formed for the exercise of such discretion. The Courts may be precluded from questioning the discretion itself of a functionary to exercise his powers vested in him by law or the Constitution but if such an exercise is dependent on certain conditions, the contents of the powers so exercised in relation to such conditions are open to scrutiny by the superior Courts, specially so, when the rights of the people are thereby affected. It is not disputed that the conditions laid down for the exercise of discretionary powers in Article 112(2)(b) of the Constitution are identical in nature to those prescribed for the dissolution of the National Assembly by the President in Article 58(2)(b) of the Constitution. Thus, the arguments of the learned counsel for the respondents lack substance when they say that this Court may open doors for reviewing the dissolution order of the National Assembly but it has to shut its doors when the order dissolving the Provincial Assembly is impugned before it. Such an interpretation is not only unwarranted by the Constitution but is patently illogical and unjust.
9. Before embarking upon the question of the existence of judicial facts which shall attract the discretionary powers of the Governor under Article 112(2)(b) of the Constitution, we shall deal with another pre‑requisite for the exercise of such powers laid down in the said Article. The provisions of Article 112(2)(b) lays down that the Provincial Assembly is to be dissolved after the prior approval of the President of Pakistan. Mr. Gillani contained that such an approval was never obtained in the circumstances of the case. He rather suggested that after dissolving the National Assembly the President instructed the Governor of N.‑W.F.P. to dissolve the Provincial Assembly as well. When we asked the learned Advocate‑General whether he could lay any information before us with regard to the aforesaid approval of the President, he promised to do so after contacting the authorities concerned. On the following date of hearing, Mr. Zahurul Haq, and not the. Advocate‑General, who represented respondent No.2 made a statement before us which was duly recorded and signed by him. He stated as follows:‑‑
"The Advocate‑General N.‑W.F.P. was asked to contact the Governor N.-W.F.P. to apprise this Court whether something in writing is available to show the approval of the President with regard to the dissolution of the Provincial Assembly.
Mr. Zahurul Haq, counsel representing the Provincial Government, in reply has stated that he did contact the Governor on telephone after the Advocate‑General was directed to do so and the Governor informed him that `on the evening of 5th of August, 1990 he went to Islamabad taking alongwith him a rough draft, met the President who approved the order which was announced on 6th of August, 1990 in the Governor House at Peshawar."
When asked whether he would like to place before us any document in support of his statement, he replied that he had nothing else to add to whatever he has stated before us.
10. In the light of the aforesaid statement of the learned counsel for respondent No.2 made on behalf of respondent No.l, another argument of the learned counsel for the petitioner assumes significance. He argued that the President has to be advised by the Prime Minister in according approval sought by the Governor for the dissolution of the Provincial Assembly. He referred to Article 48(1) which reads as follow:‑‑
"In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet (or the Prime Minister);
(Provided that the President may require the Cabinet or, as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration)."
Article 48(2) has already been reproduced above. According to the provisions of the said Article the President shall not require the advice of the Prime Minister when he acts in his own discretion and all the matters in which he exercises such a discretion are specifically split out in the Constitution. They are limited in number. A bare look at Article 112(2)(b) of the Constitution reveals that approval of the President for the dissolution of the Provincial Assembly is imperative. The respondents have failed to produce any document in the form of a summary or draft of the dissolution order itself which was communicated to the President for his approval. The word "approval" is more mandatory and stronger in connotation than the word "consultation" or "consent" which appear in different, provisions of the Constitution. Previous approval connotes that the authority which has the powers to grant such an approval may also disapprove a measure referred to him. This in turn shall entail the application of mind of the approving authority specially so when such an approval is required prior to the making of the decision by the functionary who seeks such an approval. The learned counsel for respondent No.2, and not the Advocate‑General of the Province, volunteered to make a bare statement on behalf of the Governor of N.‑W.F.P. unsupported as stated earlier by any document. The National Assembly was dissolved in the afternoon of 6th of August, 1990. The President stated in his Press Conference that he had made up his mind to dissolve the National Assembly the same day. The Press Conference was summoned by the Governor of N: W.F.P. soon thereafter in the evening of 6th of August, 1990. In his statement, however, Mr. Zahurul Haq, Advocate informed us that the Governor left for Islamabad on 5th of August, 1990 and met the President personally and sought his approval for the dissolution of the Provincial Assembly. In such circumstances, the learned counsel for the petitioner argued that not only, the prior approval of the President was ever sought but if the prior approval of the President was sought and obtained it ought to have been sought under Rules of Business, 1973, which lay down an elaborate procedure for the performance of functions of the Head of the State when the advice of the Prime Minister is required for such a performance. He argued that on 5th of August, 1990, the deposed Prime Minister was very much in office and that she did not give advice to the President to approve the dissolution of the Provincial Assembly as proposed by the Governor of N.‑W.F.P.
11. Mr. Maqbool Elahi Malik, the learned counsel for respondent No.3 argued that outside the discretionary powers exercised by the President he has other functions to perform which may or may not be on the advice of the Prime Minister. To support his arguments, he referred to Articles 48(6), 58(1), 92(1), 92(3) and 93(1) of the Constitution wherein it is specifically laid down that the President shall perform his functions mentioned therein on the advice of the Prime Minister. He contended that by specifically limiting certain functions to be performed by the President on the advice of the Prime Minister, rest of the powers or functions to be performed by him shall be in his discretion and without his advice.
12. The learned counsel for respondent No.3 has, however, ignored the provisions of Article 48(1) of the Constitution reproduced above which lays down the basic principles of Parliamentary Government. No limitation is provided on tendering of advice of the Cabinet or Prime Minister in the performance of functions by the President. The exclusion of the advice of the Cabinet or Prime Minister from the domain of the President's functions is provided only in sub‑clause (2) of Article 48 of the Constitution which states that notwithstanding anything contained in clause (1) of the Article, the President shall act in his discretion in respect of any matter of which he is empowered by the Constitution to do so. The last phrase, namely, "empowered by the Constitution to do so" clearly and unambiguously lays down that the President is to act independently of the advice of the Prime Minister in his own discretion, only in those cases in which he has been specifically allowed to do so by the Constitution itself. We shall be negating the spirit of the Parliamentary Government which is engrained in the structure of the Constitution if we agree with the learned counsel for respondent No.3 that outside a few limited functions of the President which are specifically to be performed on the advice of the Prime Minister, rest of the functions of the President are to be performed by him independently of the advice of the Cabinet or the Prime Minister. In the circumstances, we are of the opinion, firstly, that enough material was not placed before us to prove that prior approval of the President which is an essential prerequisite for dissolving a Provincial Assembly was ever obtained. Secondly, assuming that the same was obtained, the approval was not accorded by the President on the advice of the Prime Minister.
13. Last but not the least, we shall consider the contentions of both the sides in relation to the existence or relevancy of the grounds which pursuaded the Governor to form an opinion that a situation has arisen in which the Government of N.‑W.F.P. could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. We have already in one of the preceding paragraphs referred to the standards laid down by the superior Courts in the dissolution cases cited above. We shall examine this question in the light of the said standards. It is undisputed that reasons for dissolving a legislature in his discretion by the Head of the State or Head of the Province must have nexus or co‑relation with the enabling conditions laid down in the Constitution itself. The learned counsel for the petitioner vehemently argued that the Notification informing the members of the Provincial Assembly and the members of the Cabinet that they ceased to hold their elected offices in view of the dissolution of the said Assembly did not give any ground or reason whatsoever, for doing so. Whether we take the copy of the Notification appended with the petition or the copy of the Notification dated 6th of August, 1990 later on produced by the counsel for respondent No.2, the admitted. position is that both do not give any reason or ground for the satisfaction of the Governor to dissolve the legislature. The so‑called corrigendum dated 16‑9‑1990 which did carry the grounds for dissolution of the Provincial Assembly was admittedly issued after the constitutional petition was admitted for regular hearing on 21‑8‑1990.
14. This document could easily be taken out of consideration as an afterthought. The dissolution of a legislature is a very serious matter. The shoddy manner in which the N.‑W.F.P. Assembly was dissolved shows the indifference of those who deal with the dissolution of an elected legislature.
15. We would have straightaway accepted this constitutional petition on this ground alone. However, as stated earlier, in the interest of justice and as the matter is of public importance, we decided to examine all the documents filed before us including the so‑called corrigendum threadbare and heard both sides at length. The exercise has been undertaken to find out whether reasons relatable to the provisions of the Constitution which led to the dissolution of the Provincial Assembly were available.
16. The aforesaid corrigendum dated 16‑9‑1990 gives the following reasons which led the Governor to form an opinion that the Government of the Province could not be carried on in accordance with the provisions of the Constitution:
"The usefulness and the mandate of the Provincial Assembly of North‑West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including mis‑application of public funds and `horse‑trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of Oath(s) prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people."
It is pertinent to point out that the above paragraph is the reproduction of the Press statement made by the Governor as published in the Frontier Post (Mark R‑2).
17. When dissected the paragraph quoted above from the so‑called corrigendum points out the failure of the Provincial Assembly in three fields; (1) its usefulness and its mandate, (2) confidence of the people reposed in it and (3) orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of Oaths prescribed thereunder and the law. This failure has been caused, in the opinion of the Governor, by (1) continuous and widespread corruption including misapplication of public funds and horse‑trading, (2) change of loyalties in violation of law by (a) the holders of representatives offices for political and personal gains, (b) by the functionaries of the Government and (c) by the local and statutory authorities functioning under 'the control of the Government.
18. Before establishing their nexus with enabling provisions of the Constitution, we may point out that despite our anxiety to find out the substance in the serious allegations levelled against the members of the Provincial Assembly, the functionaries of the Government, local and statutory authorities, none of the counsel appearing on behalf of respondents 2 and 3 were able to provide us with concrete information to substantiate the said allegations. We do not have to emphasise that the allegations are vague and general. The learned counsel for respondent No.3 would like us to take judicial notice of the situation prevailing in the Country at large at the time of dissolution of the Provincial Assembly. We do not understand as to how an elected Assembly of the people could be dissolved by the Governor if we now form an opinion on the basis of judicial notice that certain conditions relatable to the dissolution of the Provincial Assembly were in existence. This was the job of the Governor of the Province before he dissolved the Assembly. He has not given any instance, details or material which led to the formation of his opinion about the members of ‑the Assembly and other functionaries mentioned in his dissolution order.
19. The respondent No.2, however, has with its written statement enclosed three documents which in its opinion was the material before the Governor for the exercise of his discretionary powers. R‑2 is the performance report of the N.‑W.F.P. Assembly from 30th November, 1988 to 6th August, 1990 prepared by the Secretary Provincial Assembly. It gives the number of questions asked during the aforesaid period from the members of the Assembly, the number of privileges and adjournment motions, resolutions, the amendments to the existing laws and the new laws, passed by the Assembly. Amongst the details so given, the learned counsel for respondent No.2 pointed out only the number of fresh legislation made by the Assembly. He said that during the period of twenty months, the Assembly has been able to pass five enactments in the field of legislation. When asked whether he could provide us with information with regard to the fields which required legislation during these twenty months but were ignored by the Provincial Assembly, the learned counsel showed his ignorance. He conveniently ignored the other work of the legislature detailed in the report. He also could not point out as to how many private member bills were presented to the legislature which after due deliberations could not become laws. In short, he had no other information or material with regard to the performance of the Provincial Assembly. The other document which is placed as a part of the material forming the basis of the information of the Governor in dissolving the Provincial Assembly is the North‑West Frontier Province Employees on Contract Basis (Regulation of Services) (Amendment) Act, 1990. The learned counsel stated that this piece of legislation was bad inasmuch as that the employees on contract basis were transformed into ad hoc appointees. The third document is also an Act which carries an amendment to section 4 of the aforementioned Act. This amendment regularised the services of those mentioned in section 3 of the original Act. It is not disputed that these Acts were validly passed by the Provincial Legislature and received the assent of the Governor of the Province as required by the Constitution. It is also not disputed that the Governor who assented to these Bills is the same person who dissolved the Provincial Assembly. One fails to understand as to how the laws passed by a competent legislature with the assent of the Governor could be made as the basis for the dissolution of the legislature under Article 112(2)(b) of the Constitution. It is the primary function of the legislature to pass laws and the laws so passed have their efficacy and cannot be termed bad unless so declared by the superior Courts in appropriate proceeding.
20. We, therefore, conclude that the material so provided to us which formed the basis for the opinion of the Governor is least relevant for establishing the allegations levelled by him in the so‑called corrigendum.
21. Not only the aforesaid allegations are general and vague, it has not been established that as to how the said allegations have given rise to a situation in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution. Mr. Maqbool Elahi Malik kept on repeating that the petitioner who was the leader of a minority party in the Assembly had to find support from members of other political parties to remain in office. This can hardly be called a novel experiment in a Parliamentary democracy. There are coalition Governments and there are Governments functioning by alliance among different political parties. 1t is an admitted fact that not a few members belonging to the A.N.P. joined the Government of the petitioner but the entire party decided to form a coalition with his party. The other example cited by the learned counsel with regard to certain U1. members joining the Government after the break up of the said coalition, suffice it to say, that those members formed an independent group and joined the Government as such group. Whether such an action on their part amounted to defection is a matter still sub judice before this Court. No other example or instance was given for changing of the loyalties for political and personal gains by the members and v0her functionaries of the Government as alleged in the corrigendum. It was also not pointed out as to how the Government of N.‑W.F.P. could not be carried on in accordance with the Constitution.
22. The expression that the Government "cannot be carried on" under the provision of Article 112(2)(b) is the same as the expression used in Article 58(2)(b) of the Constitution which deals with the dissolution of the National Assembly. The Supreme Court in the above‑cited dissolution case explained the purport of the aforesaid expression on page 212 of the report in the language of Mr. Shafi‑ur‑Rehman, J.
"The expression "cannot be carried on" sandwiched as it is between "Federal Government" and "in accordance with the provisions of the Constitution", acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution."
In the light of the above observations we find that the nature of allegations levelled by the Government has no nexus with the criterion laid down in the enabling provision of Article 112(2) for the dissolution of the Provincial Assembly. There is neither any charge nor any indication against the N.‑W.F.P. Government that there was "breakdown of the Constitutional mechanism, a stt1emate, a deadlock in ensuring the observance of the provisions of the Constitution". On the contrary, we were told by the learned counsel for the petitioner, 'h fact not refuted by the learned counsel for the respondents, that the recent bud Re of the Province was passed unanimously by the Provincial Assembly. The Provincial Government was functioning smoothly and despite the stresses and strains of trouble in the neighbouring Afghanistan there was comparative stability in the affairs of the Province. In any case, no justification has been made out for the Governor to make an appeal to the electorate only twenty months after the election of the Provincial Assembly.
23. We are, therefore, of the considered view that the dissolution of the Provincial Assembly was not warranted by the provisions of the Constitution and ultra vires of the same. A legislature which has been elected on party basis after a considerable period of time by the people of this Province was dissolved by the Governor purportedly deriving his powers under Article 112(2)(b) of the Constitution but doing so arbitrarily, without fulfilling the essential prerequisite for the exercise of his discretion and without the objective conditions relatable to the grounds laid down in the Constitution. We shall also not accede to the prayer made by the learned counsel for the respondents that even if the action of the Governor in dissolving the Provincial Assembly is found to be without lawful authority the consequential relief of restoring the Provincial Assembly and the Cabinet be refused to the petitioner. There is no justification for such a request. The grant of relief is the discretion of a Court under Article 199 of the Constitution. It is not bound by any precedent in exercising such a discretion. Each case entails its own objective conditions and the relief is granted or refused on the basis of such conditions. The relief for restoration of the legislature illegally dissolved was refused in the case of Khawaja Sharif v. Federation of Pakistan cited above which was approved by the Supreme Court, on grounds specifically mentioned in the findings of the learned Judges of the said Court. The main considerations which weighed with them in refusing the relief were that the Assemblies which were dissolved were elected on non‑party basis, that the people in general welcomed the elections on Party basis after having been denied the same for a number of years, that a split in the former ruling party had occurred; that Muhammad Khan Junejo who was the Prime Minister prior to the dissolution of the National Assembly had accepted the action of the President and that the petition was filed after the death of the President who had dissolved the National Assembly which also entailed the unreasonable delay. The conditions today are totally different. The N.‑W.F.P. legislature which fell victim to the impugned order of dissolution was the product of the elections which were acknowledged by every body to have been eagerly awaited, held on political parties basis and claimed to be fair and free. The leader of the House which was dissolved has himself come to this Court challenging the impugned action of the Governor. No delay is to be found in filing of this petition. The sole argument of the learned counsel for not granting relief to the petitioner is that the Election schedule has already been announced and the Provincial machinery has been geared to this end. This argument is not only devoid of any pursuasive value but it is also fraught with dangers. If we refuse the relief prayed for by the petitioner on the ground that the Election schedule has been announced, we shall be setting a precedent for future dissolution of the legislature by the Head of the State or Head of the Government who may at any time after dissolving the legislature without any reason or rhyme announce the schedule of elections and the Courts shall refuse the relief to an aggrieved person on the ground that such a schedule has already been announced. This also amounts to a reading in the Constitution what is not there and it shall also bring in the protection to a dissolution order from judicial scrutiny unrecognised by the Constitution and the general principles of dispensation of justice.
24. Before parting with the case we may point out unfortunate tendencey on the part of the counsel appearing before us to seek adjournments in an important and urgent matter like the one before us. On 9‑9‑1990, the learned counsel for respondent No.2 requested for adjournment which was duly granted. It was incorporated in the order‑sheet of 9‑9‑1990 that no further adjournment would be granted. As by then no written statement was filed, the aforesaid adjournment was not utilised by the learned counsel for respondent No.2 to file a written statement before the next date of hearing. He filed the same on the actual date of hearing which obviously necessitated the adjournment of the case for its perusal by the other party and for a re‑joinder if so required. Another method adopted for seeking adjournment was to make successive applications requesting us to issue notice to the Attorney‑General in this matter before us. On 18‑9‑1990, C.M. No.370 of 1990 to this effect was moved and we disposed it of with the observations that the Federation of Pakistan was a party to these proceedings and that no separate notice was required to be issued to the Attorney‑General and that if he so desired he may represent the Federation in this case. However, the learned Attorney‑General did not appear before this Court and instead the Federation of Pakistan engaged Mr. Maqbool Elahi Malik, Bar‑at‑Law, as its counsel who appeared on 22‑9‑1990 but requested for adjournment on the ground that he was suffering from sore‑throat. On 25th of September, 1990, when the learned counsel for respondent No.3 had already concluded his arguments and the reply of the petitioner's counsel was in progress, yet another application was handed over to us by Mr. Maqbool Elahi Malik. The case was concluded and the judgment was reserved but Mr. Maqbool Elahi Malik insisted that the application which he was moving before us be disposed of separately. We accordingly, did so pointing out once again that the Federation has been represented by a counsel and there was no restraint on the learned Attorney‑General to appear before us as the Federation had already a notice of the petition and that we could not adjourn the case for one week at this stage as requested in the said application. We had ample assistance rendered to us by the counsel appearing before us and if there was ever a need to hear the learned Attorney‑General we would have never hesitated to specially ask him to do so. However, a point raised earlier by Mr. Zahurul Haq, in his application and later on by Mr. Maqbool Elahi Malik relating to the issue of notice to the Attorney‑General needs some observations here. Both the counsel referred to Order XXVII‑A, Rule 1, C.P.C. for making it incumbant on us to issue notice to the Attorney‑General. The said Rule is reproduced below:‑‑
"Notice to Advocate‑General. In any suit in which it appears to the Court that (any substantial question as to the interpretation of constitutional law) is involved, the Court shall not proceed to determine the question until after notice has been given to the (Attorney‑General for Pakistan) if the question of law concerns the Federal Government and to the Advocate‑General of the Province if the question of law concerns a Provincial Government."
It is quite obvious from the perusal of the Rule that the contents thereof are, firstly, applicable to a suit and secondly, if we extend the general principles of C.P.C. to the proceedings before the High Court in a Constitutional petition, two functionaries are mentioned in the said Rule who are to be issued notices, namely, Advocate‑General of the Province and the Attorney‑General of Pakistan. Two situations are, therefore, visualised. The Advocate‑General is to be issued notice if the question of law concerns the Provincial Government and a notice shall be issued to the Attorney‑General of Pakistan if the question of law relates to the Federal Government. Before us, is the question of dissolution of the Provincial Assembly and the Advocate‑General of the Province has been associated since the inception of this case. Furthermore, Order XXVII‑A Rule 1, C.P.C. would normally deal with a situation where suit is filed before the Court wherein the Federation or the Province is not a party but a substantial question of Constitutional interpretation is involved concerning the Federal Government or the Provincial Government as the case may be. 1n such a situation it is quite M obvious that either the Advocate‑General of the Province or the Attorney‑General of Pakistan shall assist the Court concerned. Here before us both the Province and the Federation are arraigned as parties. Due notice has been received by them. The Provincial Government has engaged a private counsel alongwith the Advocate‑General of the Province to whom notice was issued by the Court on 22‑8‑1990. Similarly the Federal Government has decided to engage a counsel who represented it before us. If the Attorney‑General had decided to represent the Federation we would have been too happy to hear him as well. But we do not find it incumbant on us in the circumstances of the case to needlessly issue him a notice while he is busy in arguing similar cases before other High Courts and we were requested to wait for the conclusion of those cases in order to hear him.
25. For the reasons given above, we accept this petition, declare the impugned order of dissolution of N.‑W.F.P. Assembly and the dismissal of the Provincial Cabinet thereto as ultra vires of the Constitution, without lawful authority and, therefore, of no legal effect. Consequently, we direct that N.‑W.F.P. Assembly and the Cabinet shall stand restored. In the circumstances of this case there shall be no order as to costs.
(Sardar Fakhre Alam, C.J.)
Inayat Elahi, J,
Nazir Ahmad Bhatti, J.
QAZI MUHAMMAD JAMIL, J.‑‑‑While agreeing with the findings of the learned Chief Justice, I add a few further observations on this subject attached herewith.
Qazi Muhammad Jamil, J
S. IBNE ALI, J.‑‑‑Vide my short order of dissent on the question of relief dated 26‑9‑1990, in this case, I append hereto my detailed order.
S.Ibne Ali, J
QAZI MUHAMMAD JAMIL, J.‑‑‑Being in full agreement with the findings of the learned Chief Justice on all the issues before us, I would like to add my own views and conclusions on the impact of newly‑incorporated provisions of Article 58(2) and Article 112(2) on the basic structure of our Constitution. In the process, our findings on the nature of discretionary powers or functions vested in the Head of the State or Head of a Province, as the case may be, under the aforesaid provisions of Article 58(2) and Article 112(2) of the Constitution shall be fortified. It shall also bring into bold relief the judicial compulsions of interpreting those powers or functions despite the restrictive clause of Article 48(2) of the Constitution.
2. Technically, dissolution of a legislature means pre‑mature termination of its fixed term. It has its origin in British system of Government. Power to dissolve the House of Commons, the elected House in England, is part of the Royal Prerogatives. The monarch exercises his discretionary power to do so. Over a number of years, this power like all other Prerogatives of the King or Queen is being exercised on the advice of the Prime Minister. This Convention being part of other Conventions, has developed with the growth of representative and responsible Government in Britain. Responsible Government means an executive responsible to the Parliament. In other words, it implies Parliamentary control of the Executive. It also necessarily follows that executive is part of the legislature and is made out of the legislature. With the advent of the Party‑system and its ultimate control of the minds of the electorate, coupled with p the convention that for the exercise of each Prerogative a minister is responsible, only that political party could form the Government which enjoyed the confidence of the House. Once a Prime Minister enjoys that confidence, he has to run an elected Government with the help of the Parliament. One of the weapons used by the Prime Minister for the co‑operation of the members of the House of Common is the power to dissolve the House. Both the Government and the Opposition would like to appeal to the electorate only when they are popular, outside the House. In other words, the Royal Prerogative of dissolving the popular House has come to stay as a matter of expediency with the Prime Minister of England.
3. Historically, leaders of the major political parties, in Pakistan and India, both prior to Independence and after Independence, made the Parliamentary form of Government as an axiomatic part of their political platform. Resultantly, our Constituent Assemblies had never entertained any doubt about its introduction in the Constitutions framed by them. Constitution of 1956 and Constitution of 1973 in its original form borrowed the Conventions of the Constitution from England and entrenched them as legal norms in the Constitution. Power to dissolve an elected House of the legislature in the hands of Prime Minister was obviously part of such norms. The only deviation from the system, in our Constitutional history, was made by Muhammad Ayub Khan who framed his own Constitution and made Head of the State as Head of the Executive who was independent of the legislatures but at the same time he could dissolve the National Assembly. In the process, however, he would also cease to hold office.
4. The long slumber of 1973 Constitution during its so‑called period of abeyance, however, changed its shape. By Eighth Amendment specified number of discretionary powers were given to the President of Pakistan and the Governor of a Province to be exercised by them without the advice of the Prime Minister or a Chief Minister, as the case may be. One of such discretionary powers is the power to dissolve the popularly elected legislature, incorporated in Article 58(2) for the dissolution of National Assembly and Article 112(2) for the dissolution of:: the Provincial Assembly. Thus, a departure was made from the basic principle of I parliamentary form of Government that a popularly elected House can only be dissolved on the advice of the Prime Minister or the Governor of a Province. The effect of the change was quite traumatic and in a short span of two years the popularly elected legislatures have been dissolved in quick succession by the President who is not responsible to the National Assembly and the Governors of the Provinces who are nominees of the President. No advice of the leader of the I dissolved legislature was sought.
5. Consequent protest on behalf of the actual heads of the executive, namely, the Prime Minister and the Chief Ministers is quite obvious. The dissolution of a legislature on the advice of a Prime Minister or Chief Minister carries a consensus amongst the Chief of the Executive and the Head of the State or Head of a Province, as the case may be, Secondly, while tendering the advice for dissolution the Prime Minister or a Chief Minister is aware that his own office shall cease to exist and he is prepared to face the electorate by taking the responsibility for such a dissolution. That is the reason as to why the dissolution of a popular House by the Prime Minister or the Chief Minister is normally considered as a political question by the superior Courts not suitable for judicial r scrutiny. On the other hand the intense judicial activity followed the dissolution of the popular Houses of legislature in the discretion of the Head of the State or Head of a Province, in the last two years (see P L D 1988 Lahore 725 and P L D 1989 SC 166). Earlier too when the Central legislature of Pakistan was dissolved by the then Governor‑General, under the Government of India Act, 1935 read with Indian Independence Act of 1947, the Speaker of the Assembly successfully challenged the aforesaid action. of the Governor‑General before the then Sindh Chief Court P L D 1955 Sindh 96. The findings of the said Chief Court were not materially affected in appeal by the Federal Court which was accepted on technical grounds P L D 1955 Federal Court 240.
6. From the discussion in the preceding paragraphs it is quite evident as to why judicial activism of the superior Courts was necessitated in the aftermath of recent action of dissolution. So long as the Constitutional provisions relating to' the discretionary powers of the Head of the State or Head of a Province are there one expects the increasing burden on the superior Courts in their domain of judicial review. But there are other reasons too which prevailed with the superior Courts of this Country in the above‑cited judgments of post 1988 dissolution period for such a judicial review. The discretion of the President or a Governor, subject of controversy in this case, is not absolute. It is by now an established interpretation of Article 58(2) dealing with the dissolution of the National Assembly and Article 112(2) pertaining to the dissolution of the Provincial Assembly that the discretionary power is to be exercised only after laying down the objective grounds for the satisfaction that the Constitutional conditions for the exercise of such power existed. In this 'context Professor S.A. De Smith in his p celebrated work Judicial Review of Administrative Action, (1973 Edition) at page 281 gave the following opinion on the basis of case‑law:‑‑
"If the source of authority relied upon is statutory, the Courts begin by determining whether the power has been exercised in conformity with the express words of the statute and may then go on to determine whether it has been exercised in a manner that complies with certain implied legal requirements. In some contexts they have confined themselves to the questions whether the competent authority has kept within the four corners of the Act and whether it has acted in good faith. Usually they will pursue their inquiry further and will consider whether the repository of a discretion, although acting in good faith, has abused its power by exercising it for an inadmissible purpose or on irrelevant grounds or without regard to relevant consideration or with gross unreasonableness."
After discussing cases on the subject Professor S.A. de Smith on page 284 of the aforesaid work states:‑‑
"In all these cases the statutory powers held to have been misapplied had been defined with reference to purpose. As we have already observed, nowadays the Courts will not readily be deterred by subjectively worded statutory formula from determining whether acts done avowedly in pursuance of statutory powers bore an adequate relationship to the purpose prescribed by Statute.
If a discretionary power is conferred without reference to purpose, it must still be exercised in good faith and in accordance with such implied purpose as the Courts attribute to the intention of the Legislature:"
In the dissolution case of 1988, our superior Courts laid down similar principles and looked into the reasons for dissolving the National Assembly by the President of Pakistan and the Punjab Provincial Assembly by the Governor of the Province and found that they had no nexus with the objectives incorporated in Article 58(2) and Article 112(2) respectively of the Constitution.
7. For reasons recorded in the main judgment in the case in hand, we have also come to the conclusion that firstly the Notification issued on the date of dissolution carries no ground for the dissolution of the N.‑W.F.P. Provincial Assembly and that the corrigendum which was issued on 16‑9‑1990, even if taken into consideration, relates certain reasons which are not only vague, undefined and general, but they have no reference to the objectives laid down in Article 112(2) of the Constitution. It may also be mentioned here that no ouster or restrictive clause shall prevent this Court from interfering when the repository of power acts beyond the scope of his authority which may or may not involve bad faith or mala fide.
8. We are being asked to refuse the relief to the petitioner even if the impugned action is found to be un‑Constitutional and without lawful authority. This, I am of the view, is like asking a Surgeon not to stitch the incision after performing a surgery. Refusal once made had its own objectives. The same cannot be repeated every time when an Assembly is dissolved. Such an exercise may ultimately transform the discretionary powers into arbitrary powers. We are also conscious of the objective situation which prevailed after 1988 dissolution of the legislatures. There was cent of democracy in the air in the post 1988 dissolution period. Universally acclaimed Party based elections, made possible by the intervention of the Supreme Court in the case of Miss Benazir Bhutto v. Federation of Pakistan and another P L D 1988 Supreme Court 416 were at hand. Bells had already tolled for the sole actor of the Dissolution drama. The Courts were part of the progressive mood of the time. It is different now. The legislatures elected by the people in the aforesaid Party based elections have been done away with barely twenty months after they were held. Action is condemned by the affected persons and the Courts are inundated with complaining persons aggrieved of the action. Caretaker Governments are not simply taking care in the absence of a legitimate elected Government but are serious contenders of power against those who went out of power. Therefore, we are neither constrained to follow the relief formula worked out by the superior Courts in 1988 dissolution cases nor the objective situation is the same as the one prevailing at that time.
9. This petition is, therefore, accepted, the impugned order of dissolution is declared as ulna vires of the Constitution, without lawful authority and, therefore, of no legal effect. All steps taken in pursuance of the impugned dissolution order are also set at naught. It is further directed that N.‑W.F.P. Assembly and the Cabinet shall be restored forthwith. Parties shall, however, bear their own costs.
Qazi Muhammad Jamil, J
September, 26, 1990
S. IBNE ALI, J.‑‑‑I have had the privilege and benefit of going through the judgment of the Honourable Chief Justice. However, in the facts and circumstances of the case, I regret to subscribe to his verdict with respect to his granting prayer sought in this petition by the petitioner, namely:‑‑
"It is, therefore, most humbly prayed that notification dated 6‑8‑1990 of the Governor, N.‑W.F.P. which has been passed with the prior approval of the President of Pakistan be declared unconstitutional and thus, illegal and of no legal effect and the same be set aside and as consequence thereof all other steps taken by the Governor N.‑W.F.P. and the President of Pakistan in consequence thereof may also be declared illegal and as a relief the position as it existed immediately before the passing of the impugned order be restored with such other relief as may be deemed proper." ,
The events leading to the passing of the impugned order on 6th August, 1990, by the Governor N.‑W.F.P. dissolving the Provincial Assembly of North‑West Frontier Province and consequently unseating the Chief Minister and the Cabinet to hold office have been narrated by the learned Chief Justice in detail and I do not feel called upon to recapitulate the same. In my humble view, in the facts and circumstances of the present case, the petition is not entitled to the relief sought by him in this petition in view of the judgments pronounced by the High Court and Supreme Court of Pakistan.
3. In a case reported as P L D 1988 Lahore 725, the President of Pakistan, on 28th May, 1988, dissolved the National Assembly under Article 58(2)(b) of the Constitution and in consequence thereof the Cabinet also stood dismissed. Following this proclamation, the Provincial Assemblies in Punjab, Sindh, N.‑W.F.P. and Balochistan were also dissolved by the respective Governors of the Province under Article 112(2)(b) of the Constitution. Muhammad Saifullah Khan and others filed writ petitions in the Lahore High Court questioning the legality of the order of the President dissolving the National Assembly and that of the Governor of Punjab to dissolve the Provincial Assembly. In the writ petition it was prayed that the impugned orders of the President and the Governor be declared unlawful and of no legal effect and a direction be issued for the restoration of the National Assembly and the Provincial Assemblies. The writ petitions were heard by a larger Bench of the Lahore High Court. The learned Judges wile holding that the impugned orders were unlawful and of no legal effect, however, refused to grant the prayer of the petitioners with respect to the restoration of the National Assembly and the Provincial Assemblies. While refusing this prayer, the Hon'ble Judges took note of the fact that general elections to the National Assembly and the Provincial Assemblies in the country were to be held shortly on the specified dates, and further that the political party in power was divided into factions and there was not only lack of cohesion but somewhat polarization between the erstwhile Central and the Provincial Heads of the Government. The possibility that restoration of the assemblies may lead to confrontation between them, adding much to the circumstances, notwithstanding the illegality of the impugned orders could not be ruled out.
4. The petitioners and the Federation of Pakistan filed appeals before the Supreme Court. The appeals were heard by a Full Bench of the Hon'ble Supreme Court. The appeals were dismissed and the judgment of the Lahore High Court was maintained. The judgment of the Hon'ble Supreme Court has been reported in P L D 1989 Supreme Court 166. Hon'ble Mr. Justice Dr. Nasim Hasan Shah in his part of the judgment at pages 192‑93 observed:‑‑
"Coming to the Order of Dissolution of the Punjab Legislative Assembly, this was passed by the Governor of the Punjab purportedly in exercise of the powers conferred on him by Article 112(2)(b). This provision reads:‑‑
"112(2)(b).‑‑The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where in his opinion,
(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.
The High Court found that there was nothing to show that the Governor ordered the dissolution of the Provincial Assembly after obtaining the previous approval of the President. Nor was there anything at all on the record to show that a situation had arisen in the Province of the Punjab wherein the Government of that province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. Hence, the order of dissolution passed by the Governor too was not sustainable in law. We are inclined to agree:"
This brings us to the question of relief. The High Court refused to grant relief and in doing so, inter alia, observed:‑‑
"Since the orders dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of Mandamus restraining the respondents from performing the functions of their offices and to a declaration that such of the respondents who presently hold Ministerial offices and listed posts be treated as having not been constitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions. However, certain other factors which have intervened and which deserve to be taken note of prevent me from granting these reliefs. Amongst these circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former Prime Minister, in accepting the action of the President and the Governors and declaring the decision of his party i.e., the Pakistan Muslim League, to go to the Polls and seek the mandate of the people.
In this connection, the statement made by the former Prime Minister appearing in the Pakistan Times newspaper of 18th July, 1988, may be referred. Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and Members, both at the Centre and the Provinces, supporting Mr. Muhammad Khan Junejo, the former Prime Minister and some Ministers and Members, both at the Centre and the Provinces, supporting Mr. Fida Muhammad Khan (the head of other faction of the Muslim League). In these circumstances, it cannot be said that the previous majority parties at the Centre and the Provinces still command the majority of the votes of the members in the Centre and the Provinces. If the reliefs are granted, the National and the Provincial Assemblies would be beset with major problems and conflict. Still further, on 20th July, 1988, the late President ordered that the general elections would be held on 16th November, 1988'which fact has been further confirmed in public statements by Mr. Ghulam Ishaq Khan, the present President and the Election Commission of Pakistan has taken serious steps to hold the general elections and in pursuance thereof has delimited constituencies and will soon finish the job of hearing appeals therefrom. The entire administrative machinery of the Federation and the Provinces is geared upon to hold the general elections on 16th November, 1988, and the people, who previously were not in a position to vote for candidates belonging to certain political parties which had been banned, are now ready and impatient to exercise their vote freely and voluntarily without any restrictions. Taking all circumstances into consideration, the discretionary jurisdiction of the Court under Article 199 of the Constitution does not permit me to grant the reliefs as prayed. I do not, therefore, propose to grant any relief."
It was further observed at page 195 (citations U and V):‑‑
"It is true that the concept of "national interest taking precedence over rights of the individuals" which has been given effect to by us is a somewhat indefinite concept and the decision of this Court to deny the relief in exercise of its discretionary jurisdiction on its basis, therefore, requires some elaboration.
Granted that the concept of "national interests taking precedence over individual rights" is an indefinite concept and that it can mean different things to different persons but in the instant case no such ambiguity existed because it was quite clear that the national interest would be better served by a recourse to the electorate than by the restoration of the existing Assemblies provided, of course, the holding of the elections on a very early date was ensured. The bane of our society has been that elections have not been held with any degree of regularity, after reasonable intervals. An overwhelming majority in the country was strongly of the opinion and a clear national consensus existed to the effect that the political malaise in the country could be solved only by holding national general elections, wherein all the political parties were allowed to participate. In conformity with this national consensus and the unambiguously expressed wish of all the political parties of Pakistan and every section of people there was no difficulty in coming to the conclusion that an appeal to the electorate rather than restoration of the existing Assemblies, ensuring at the same time that the dates already fixed in this behalf namely the 16th November, 1988, for the National Assembly and 19th November, 1988, for the Provincial Assemblies were adhered to; was the proper course to be followed and that this was in the collective good. In exercise of the discretionary writ jurisdiction it was not, therefore, considered appropriate to set aside the aforementioned part of the order of President whereby the dates for holding of fresh general elections were specified. On the other hand, to ensure compliance therewith and to see that elections are actually held on these dates, the said dates were made a binding part of the Court's judgment itself."
Accordingly, in our short order, passed at the conclusion of the hearing it was said:‑‑
"We, however, emphasize that the general elections scheduled for the 16th and the 19th November, 1988, shall be held on the said dates and an opportunity be thus afforded to the people of Pakistan to choose their own representatives in a free, fair and impartial election.
Accordingly, these appeals stand dispose of in the above terms."
5. Hon'ble Mr. Justice Shafiur Rehman in his part of the judgment observed:‑‑ '
" .. The mere transitory continuance of such a pre‑existing state of affairs, with an eye on the immediate and prime objective of holding a timely and fair General Elections prompts us not to interfere in these proceedings with matters, and the prevailing state of affairs.
For reasons already given the findings recorded by the High Court are upheld, the denial of relief to the writ petitioners is affirmed, and all the appeals are dismissed with no order as to costs:'
Now on facts, the case in hand is not discernible or distinguishable from the cited case. As in this writ petition, we are concerned with the affairs of this Province of North‑West Frontier, we should not be oblivious of the disarray amongst the members of the Provincial Assembly particularly amongst the Cabinet members. Before the dissolution of the National Assembly, two Ministers had resigned on the ground of corruption and malpractices attributed to the then Government. The Peoples Party of which the petitioner is the Provincial President did not have absolute majority of the members in the Provincial Assembly. He formed the Government by offering to the members of other political parties and the independent candidates the portfolios of Ministers obviously to keep them happy. The combined strength of Ministers of other political parties and the independent candidates was more than the strength of his party. This Court can in the exercise of its writ jurisdiction take judicial notice in this behalf and it can be said that the Government in the Province was not stable and strong. There would always be danger of sacking of such Government and if such Government is sacked and the Provincial Assembly is dissolved, it should not arouse curiosity in one's mind. It was for these considerations that in P L D 1988 Lahore 725, the Lahore High Court refused to grant relief to the petitioner in that case and the Hon'ble Supreme Court upheld its judgment reported in PLD1989SC166.
The Election Commission has completed almost all the legal formalities for holding free; fair and impartial elections scheduled to be held on 24th October, 1990 in the case of National Assembly and on 27th October, 1990, in the i case of Provincial Assemblies. The Returning Officers have disposed the nomination papers filed before them and appeals against the acceptance or rejection of the nomination papers shall be disposed of by the Tribunals by 2nd October, 1990 and final lists of candidates for contesting elections to the National and Provincial Assemblies will be announced shortly thereafter.
Election campaigns by the political parties including the party of the petitioner have been started and are in full swing. Public meetings are being addressed daily by the leaders of the political parties. The political atmosphere in the country is now‑a‑days charged with emotions. Expediency demands that this process must be taken to its logical conclusion. Lest, there is apprehension to the maintenance of public peace and order and anarchy will hold its sway. As a result, chaotic conditions and rein of terror will dominate the society. In the circumstances discussed, this apprehension would appear to be imminent and cannot be lost sight of. In order to be on guard against such unfortunate explosive situation for the preservation of democratic norms and values upon which our social edifice rests, I am, in the exercise of writ jurisdiction of this Court which is essentially discretionary in nature, reluctant to grant to the petitioner the relief prayed by him in this petition.
Accordingly, I would, in view of the cited authorities and for the reasons stated above, dismiss this writ pet it ion with no order as to costs.
This order furnishes the reasons for the short order recorded by me on the 26th September, 1990.
For reasons to be recorded later in the Judgment it is held that the impugned order of dissolution of the Provincial Assembly passed on 6‑8‑1990, later notified and sent to the Members of the Provincial Assembly for information is totally bereft of the grounds or reasons which necessitated the dissolution of the House. There is not an iota of reliable evidence on record to indicate that approval of the President as required was obtained and for it sufficient material was brought to his notice. The corrigendum Notification issued on 16‑9‑1990, a belated exercise after a lapse of a month and ten days would not cure the legal flaws in the earlier Notification under which the Assembly was dissolved as it had taken effect immediately. The reasons given in the corrigendum are vague, irrelevant and not relatable to the provisions of Article 112 of the Constitution of the Islamic Republic of Pakistan. The plea of immunity taken by respondent number one to be answerable to Courts for the impugned action was ably repelled by a Full Bench of the Lahore High Court in P L D 1988 Lah. 725 and again by the august Supreme Court of Pakistan in P L D 1989 SC 166. Besides it does not lie in the mouth of the rulers to claim immunity for appearance in Courts of law as functionaries of an Islamic State when we find that two great Caliphs did appear in person before Qazis.
2. As none of the conditions laid down in the authority of the Supreme Court of Pakistan reported as PLD 1989 SC 166 in a similar case for refusing discretionary relief is available in the case in hand, we are of the considered view that illegally dissolved Provincial Assembly, which sufficiently represented all major political parties, be restored. We, therefore, accept this petition, declare the impugned order as un‑constitutional, without lawful authority and of no legal effect. Consequently, the North‑West Frontier Province Assembly and the Cabinet stand restored. In the circumstances of this case, we pass no order as to costs.
Sardar Fakhre Alam, C.J.
Inayat Elahi, J
Nazir Ahmad Bhatti, J
Qazi Muhammad Jamil, J
S. IBNE ALI, J.‑‑With utmost respect I am not in agreement with that part of the order by which the Assembly and the Cabinet is ordered to be restored.
S. Ibne Ali, J
M.B.A./1132/P Petition accepted.