1990 PLP 1931 (MLD)

GUL ZARIN KIANI, J.‑‑Applicant Khadim Malik, a citizen of this country and a practising Advocate of this Court has filed a petition under Article 199 of the Constitution of Islamic Republic of Pakistan to have declared that the existing National Assembly of Pakistan and the Provincial Assembly of the Province of Punjab were merely substitutes for the Assemblies dissolved on 29‑5 1988 by the then President of Pakistan and the Governor of the Province and having been elected as a resault of General Elections held on 16‑11‑1988, and, 19‑11‑1988 respectively and inducted in office, on 2‑12‑1988 and 5‑1‑1989, respectively for the residual term had ceased to exist with effect from 20‑3‑1990, the term for which the dissolved Assemblies were to continue if not dissolved. Upon reference to the Full Bench decision of this Court in Khawaja Muhammad Sharif v. Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 Lahore 725, and, decision of the Supreme Court reported as PLD 1989 SC 106, petitioner states that though the acts of dissolving the Assemblies by the respective Executive were held invalid by the Courts but reinstatement was declined both by the High Court and the Supreme Court. Elections to Assemblies, so the petitioner argues, were not held under Article 224 of the Constitution but under the directions of the superior Courts. Therefore; the elected Assemblies could hold office only for the residue term because Article 52 of the Constitution which prescribed for an ordinary term of five years did not apply to them. In support, reference was made to Articles 52, 58, 218 and 224 of the Constitution. It was submitted that neither the fresh Election Commission was constituted nor fresh delimitations of the Constituencies were made. Similarly, it was urged that fresh electoral rolls for these elections were not prepared. Despite vehemence and force attending the contentions, we are not satisfied of any serious merits in them. On 29‑5‑1988, the then President dissolved the National Assembly of Pakistan. On the day following, the Governors of the Provinces followed the suit. In number of petitions, dissolution of Assemblies were challenged in Constitutional jurisdiction of this Court. In the aforenoted Full Bench decision, the Court found that the acts of dissolving the Assemblies were not sustainable but declined reinstatement of the dissolved Assemblies. This decision was substantially affirmed by the Supreme Court. In the present context, it is unnecessary to make a detailed reference to the ensuing steps taken to bring the country back to general poll. However, elections eventually were held on the dates already noted and members elected installed in office formally. Article 52 of the Constitution provides that unless sooner dissolved, the National Assembly shall continue for term of five years. This term of five years commences from the date of the first meeting of the Assembly. Upon expiry of its normal term, it stands dissolved automatically. Corresponding Article dealing with the terms of Provincial Assemblies is 107 which is similarly expressed. Articles 58 and 112 deal with dissolution of National and Provincial Assemblies. Constitution provides two modes for putting an earlier end to the normal life of the Assemblies. One is upon the advice of the Prime Minister in case of National Assembly and the Chief Minister in case of Provincial Assemblies. Advice tendered by the Prime Minister or the Chief Minister as the case may be is binding. The President or the Governor as the case may be has no choice in the matter except to act in the manner advised upon. Second mode was inserted in the body of the Constitution by P.O.14 of 1985. However, exercise of power thus given was restricted and hedged in by specified events and circumstances enumerated in Articles 58 (2) and 112(2) of the Constitution. On conjoint reading of these two sub‑Articles of the Constitution, it can be safely said that the Constitution did not leave the' President or the Governor free and unfettered to bring the elected Assemblies to their premature end by ordering for their dissolution. In our opinion, it was wholly incorrect to suggest that 1988 elections were not held under the Constitution. As said above, the superior judiciary had not approved the dissolution of the Assemblies by the respective Executives but had refused interference and declined restoration of the dissolved Assemblies. Whole process of General Elections held in 1988 went through in accordance with the provisions and requirements of the Constitution. Fundamental point to be broached is whether the new Assemblies were elected only for the residue term of the dissolved Assemblies or the full term contemplated for them by Article 52 of the Constitution. This important question has engaged our serious attention but upon integrated reading of the relevant provisions of the Constitution, we have come to a firm conclusion that the only logical and correct answer to the question posed to us is that given in Article 52 and that is that the Assemblies elected in 1988 were not successor‑Assemblies to those dissolved earlier in May 1988 to run for the residual term only. In our opinion, terms of the Assemblies elected upon the basis of fresh polls, in absence of any direct provision to the contrary in the Constitution could not be restricted or curtailed for a period less than five years unless sooner dissolved in the manner indicated by the Constitution. Neither the petitioner was able to point out, any provision in the Constitution nor have we been able to discover any which could place any such restriction upon the term of the elected Assemblies. It is not open to doubt that the Assemblies which had come into being in 1985 if not prematurely dissolved would have lived their normal lives guaranteed to 0ie.rn in the Constitution. Whenever elections are held upon dissolution of Assemblies, whether upon the advice of the Prime Minister and the Chief Minister or the President and Governor on their own, the Assemblies that come into being are for a normal term of five years. There is no ambiguity in the Constitution in this behalf. Acceptance of the petitioner's contention would entail reading of and adding something to the Constitution, which, we are afraid, we are unable to do. It may be of some advantage to observe that the petitioner had also earlier filed a writ petition‑‑W.P. 67 of 1990 for a similar relief which was disposed of by the Division Bench of this Court on 20‑1‑1990 but the decision was not on merits. As we have not found any merit in the contention of the petitioner about .the term of the existing Assemblies, no writ or direction is required to be issued by the Court. Accordingly, writ petition is dismissed in limine. M.B.A/K‑268/L Petition dismissed.