1994 PLP 2265 (MLD)

M. MAHBOOB AHMAD, C.J.

The validity of the order of dissolution, dated 28-6-1993 made by the Governor of Punjab (respondent No.3) on the advice of the Chief Minister (respondent No.2) has been assailed in this petition mainly on the ground of mala fides of the aforesaid respondents.

2. It was submitted by learned counsel for the petitioner that the Hula fides of respondent Nos.2 and 3 are writ large and patent on the face of the record in view of the admitted position that the advice was tendered by the Chief Minister within 7 minutes of the announcement of the order of this Court on 28-6-1993 in W.P. 5486 of 1993, whereby the earlier order of dissolution of the Assembly by the Governor on the advice of the Chief Minister was declared to be without lawful authority and of no legal effect. In the same context, it was pointed out by the learned counsel that the Governor had passed the impugned order at 7-45 p.m., by which time a copy of the previous order of this Court was not available.

3. Learned counsel for the petitioner, however, submitted that without prejudice to the contentions raised in this petition, the petitioner would not press the relief of restoration of Provincial Assembly claimed by him in the petition in view of the fact that general elections in the country have been called for on 6th October, 1993 and 9th October, 1993 for the National and Provincial Assemblies respectively.

4. The learned counsel for respondents, however, submitted that the plea of mala fides Is not available to the petitioner, since the Chief Minister and the Governor have not been arrayed as respondents by name and only have been sued by designation whereas the Province of Punjab has been sued through the Chief Secretary, Punjab, against whom no mala fides have been attributed.

5. Prima fade there is substance in the contention raised on behalf of the petitioner that the impugned order suffers from malice in law as it appears to have been passed with a view to frustrate the judgment delivered by this Court in W.P. No.5486 of 1993. We are, however, of the view that any further discussion at this stage on the aforementioned issue has been rendered of academic nature only as the petitioner has given up the main relief of restoration of the Provincial Assembly. But we cannot help observing that the impugned order was clearly violative of the explanation to Article 112 of the Constitution in view of the finding recorded by a Full Bench of this Court in I.W.P. No.5486/93 regarding pendency of a notice of resolution for a vote of no-confidence.

6. Although the learned counsel for the petitioner had prayed that notwithstanding that he was not pressing for restoration of the Provincial Assembly, we should declare the impugned order to be without lawful authority but we have refrained from doing so in view of the subsequent developments which have taken place at the national level as also the fact that Ch. Pervaiz Elahi, the Leader of Opposition in the Provincial Assembly who was the petitioner in earlier petition has also today withdrawn his petition on the ground that fresh elections of the National Assembly and the Provincial 4 Assembly have been called for. Disposed of accordingly with no order as to costs. H.B.T /M-1736/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.