SIDH HIGH COURT (PLP)

The Governor having considered the situation in the Province of Sindh, and the prevailing facts and circumstances is of the opinion that 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 among others for the reasons mentioned below: (a) The Government of the Province of Sindh has failed in its duty to maintain law and order, and to protect the life, honour, dignity and property of the people who have been constantly subjected to indiscriminate killings, rape, terrorism, dacoities, kidnapping for ransom, politics of violence and vengeance amongst citizens throughout the Province and also failed to ensure the rights of the citizens in a just, equitable and non‑discriminating manner leading to accentuation of political and ethnic polarisation affecting the welfare of the people and endangering the integrity of the Province. (b) The mandate, effectiveness and purpose of the Provincial Assembly of Sindh as a representative institution under the Constitution are defeated by widespread corruption including misapplication of public funds in the Provincial Government, its functionaries, the statutory authorities/bodies operating under its control, the holders of representative offices for political gain and furtherance of personal interests, to such extent that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(s) prescribed therein and the law, is no longer possible and further the Assembly has failed to take remedial action in this behalf, and has lost the confidence of the people. (c) The Government of the Province has undermined the Civil Services in violation of Articles 240 and 242 of the Constitution and subjected the services to undue pressures and threats and further the authority, agencies and resources of the Government of the Province and statutory bodies/corporations under its control have been misused for political ends and purposes and for personal gains. Now, therefore, I Mahmoud A. Haroon, Governor of the Province of Sindh in exercise of the powers conferred on me by clause (2)(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, with the previous approval of the President of Pakistan, hereby dissolve the Provincial Assembly of Sindh with immediate effect, and the Chief Minister and Cabinet have ceased to hold office forthwith." This Order was passed under Article 112(2)(b) which reads as follows: "112.‑‑(l) The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister and the Provincial Assembly shall, unless dissolved, stand dissolved at the expiration of forth‑eight hours after the Chief Minister has so advised. (2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion (a) a vote of no‑confidence having been passed against the Chief Minister, no other member of Provincial Assembly is likely to command the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose, or (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 terminology used in Article 58(2)(b) and in this Article is the same with the difference that under Article 112(2)(b) the Governor has to obtain prior approval of the President. Mr. Lakho, the learned counsel for the petitioner in Petition No.836 of 1990 has contended that in the short span of time when the Governor was administered Oath and the Order was passed, it was not possible to examine all the materials and therefore, no honest opinion as required by law could be formed. It is an admitted position that Mr. Mahmood Haroon was sworn in as Governor at 10‑00 p.m. and he dissolved the Assembly at about 11‑00 p.m. The respondents have filed two counter‑affidavits and produced bulky data to substantiate that sufficient material was available for forming the opinion. According to Mr. Lakho it was not possible to make these material available to the Governor or to examine them within one hour and form opinion. Mr. Aftab Akhund, the learned Advocate‑General contended that these materials were available in files kept and maintained by the Governor House. Furthermore the Secretaries were available to brief the Governor. Mr. Nizam Ahmad the learned Deputy Attorney‑General contended that Mr. Mahmood Haroon is not an ordinary person, he is a seasoned politician, has held high offices and it was not difficult for him to form opinion within the time at his disposal. There is no specific denial that the material produced in Court was not available. From the two counter‑affidavits filed on behalf of the Province of Sindh it seems clear that these materials were available to the Governor. He is a resident of Sindh and being a politician is fully aware of its situation. The brief reading of documents, perusal of letters exchanged between the President and the Governor of Sindh would not have taken much time to form opinion. Where in the time span it is possible to form opinion objectively, it cannot be challenged on the plea that longer time was required for that purpose. Mr.Lakho then contended that the subject in General Zia's Order of dissolution and the present Order has remained the same and in Saifullah's case Supreme Court has held that law and order situation has no nexus with the Dissolution of the Assembly, therefore, the Order cannot sustain. The order passed by the General Zia‑ul‑Haq was completely different from the impugned order. There the terminology used in Article 58 was repeated without giving any detail or particulars at any stage. Here specific acts of internal disturbances have been given and in support thereof material has also been produced. Furthermore General Zia's order related to dissolution of National Assembly and no allegation was made that Federation had failed to discharge its duties under Art.

148. The impugned order is in respect of the Provincial Assembly which is competent to deal with law and order situation. It is the duty of the Provincial Government to afford protection to life, liberty, honour and property of the citizens which as discussed above it had failed. Mr. Aftab Akhund has referred to the counter‑affidavits extensively to show that the Legislative function was virtually at a standstill and the Opposition members of the Assembly were not attending the session out of fear and risk to life and personal safety. It has been stated that members of Assembly were engaged in committing crimes, harbouring criminals and the internal disturbance had completely paralysed the working of the Government. The irregular appointments in senior grades, coercive methods used against high officials, irregular allotment of lands causing loss to KDA., political polarization and widening ethnic gulf, frequent change of posting on political grounds and total failure of police m checking crimes had crippled the Government machinery and paralysed the entire administration. As I have already discussed earlier while dealing with law and order situation further reference at this stage is not necessary. I have discussed the materials relied upon by the President and produced in this Court which according to Mr. Pirzada are selective in nature. In these circumstances, happenings, incidents, conflicts and confrontation can it be said that the Government was run in accordance with the Constitution and the law. Similar question arose in Row Brindra Singh v. Union of India AIR 1968 Punjab and Haryana 441 in which the President of India on the report from the Governor of State of Haryana, in exercise of power conferred under Article 356 of the Indian Constitution dissolved the Provincial Assembly. This order was challenged on similar contention as raised in this petition and the Court while holding the order to be valid observed as follows:‑‑ "If the Ministers were so busy in maintaining themselves in power that they were unable to attend to their daily work, with the inevitable consequences, that the administration suffered the Government cannot be said to have been carried on according to the Constitution. Again if the services were so demoralised by the threats of transfer that the administration was paralysed, as was reported by the Governor how can then it be said that administration was being carried on according to the provisions of the Constitution. The Ministry, as pointed out merely existed for personal gains or advantages and not for a political ideology for which the electors had elected the members of the Assembly. So they were neither able to form any policy nor able to put into effect. There was almost consistent crossing of the floor of the House with members shifting their loyalties far too frequently that it shook the stability in the Government and this they did to interfere not only with the policy of the Government but also into the day‑to‑day working of the administration the effect of which has been described in the report of the Governor as the paralysis of the administration. The judgment of the Ministers was not free from outside pressure by members, pressure exerted for personal ends only." It was further observed:‑‑ "It has already been stated that there is amply sufficient material in the report of the Governor that the administration of the State had been paralysed and its real functioning was almost not there because Ministers were unable to attend not only to the making of the policies but also to the execution of the same." The cumulative effect of the maladministration, inability to control the law and order situation, inability to protect the Province from internal disturbance, clashes and confrontations between the Provinces and the Federation, demoralisation and dissatisfaction amongst the services, horsetrading, corruption at all levels and legislative deadlock had paralysed the J Government. These were sufficient reasons to form an opinion that the Government was not run in accordance with the Constitution and law. The learned counsel for the petitioners have contended that if the Order of dissolution of Assembly is upheld it will open a gate for similar actions in future. Article 58 empowers the President to dissolve the National Assembly but it is not unfettered. The preconditions imposed by the Constitution must be satisfied before exercising such power. It is to be exercised sparingly and in extreme circumstances when the Constitutional machinery has paralysed. There are instances where the Superior Courts have struck down the order of dissolution. Article 58 does not only confer a harsh power on the President but it K casts a duty on the Government to rule, act and conduct according to the Constitution and law. If the rule of law is respected, patience and tolerance is exhibited; honesty and morality as opposed to corruption, nepotism and favouritism is practised, policy of live and let live others is adopted, all administrative actions are taken in a firm and fair manner and policy of confrontation is avoided, the Constitutional machinery can never paralyse and no one should have any fear. Before parting with the judgment I must acknowledge the valuable assistance rendered by the learned counsel who addressed the arguments particularly Mr. Syed Sharifuddin Pirzada and Mr. Abdul Hafiz Lakho. All the petitions are dismissed with no order as to costs. MAMOON KAZI, J.--These four petitions have been joined together as they involve common questions of law. The petitions call in question the order passed by the President of Pakistan, dissolving the National Assembly and dismissing Ms. Benazir Bhutto and her Cabinet of Ministers and a similar order passed by the Government of Sindh, on the same date, dissolving the Sindh Assembly. Such action was taken by the President on the 6th August, 1990 which was followed by the dissolution of the four Provincial Assemblies and installation of Care-taker Governments both at the Centre as well as in the Provinces. In C.P. No.D-754 of 1990 and D-166 of 1990 the orders of the President in regard to the dissolution of the National Assembly and the dismissal of the Government of ex Prime Minister, Benazir Bhutto have been assailed while in C.P. NOD-795 of 1990 the petitioners have assailed both the dissolution of the National Assembly as well as the Provincial Assembly of Sindh. In C.P. No.D-836 of 1990, which has been filed by the former Chief Minister of Sindh, the order of the Governor of Sindh, dated 6‑8‑1990, dissolving the Sindh Assembly has been called in question.

2. The order dissolving the National Assembly, which was promulgated by the President purportedly under Article 58(2)(b) of the Constitution of Pakistan, is couched in the following words:‑ THE PRESIDENT Islamabad, the 27th August, 1990 DISSOLUTION ORDER The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that 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:‑ (a) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous horse‑trading for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to * discharge, substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people. . (b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority; and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the autonomy granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discord, confrontation and deadlock, adversely affecting the integrity, solidarity and well‑being of Pakistan, in that, inter alias‑‑ (i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154 and in relation to Articles 155 and 161. (ii) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands. (iii) Constitutional powers and functions of the Provinces have been deliberately frustrated by extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the People's Programme. (iv) The Senate, which is representative of Federating Units under Article 59 and is an integral part of Parliament, ‑ has been ridiculed and its constitutional role has been eroded. (c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies, statutory and other corporations including Banks working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath(s) prescribed therein, and the law, does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf. (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of the Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. (e) The Government of the Federation has violated the provisions of the Constitution and the law in that: (i) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence. (ii) Authority, resources and agencies of the Government of the Federation including statutory corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains. (iii) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242. (iv) The powers under Article 45 have been exercised by the Government without prior approval of the President. Now therefore I Ghulam lshaq Khan President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2)(b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith. (Sd.) GHULAM ISHAQ KHAN, President. No.178/1/President dated 6th August, 1990.

3. While. resisting the petitions, the Federation has pleaded that the order dated 6‑8‑1990 was passed by the President in pursuance of Clause (2)(b) of Article 58 of the Constitution, in the exercise of his discretion after having formed an opinion that the situation had arisen in which the Government of the Federation could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. The action is, therefore, fully warranted under the law and not open to exception. A detailed written statement has been filed supporting the grounds of dissolution referred to in the President's Order. The material consisting of photo‑copies of some official documents and various newspaper clippings upon which the opinion of the President is said to have been formed have been placed before us.

4. Article 58(2) of the Constitution, around which the entire controversy revolves provides as follows:‑ "(2) Notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion where, in his opinion,‑‑ (a). a vote of no‑confidence having been passed against the Prime Minister, no other member of the National Assembly is likely to command the confidence of the majority of the members of the National Assembly in accordance with provisions of the ‑Constitution, as ascertained in a session of the National Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Federation cannot be carried on in accordance mnith the provisions of the Constitution and an appeal to the electorate is necessary." As reference has‑been, made in Article 58(2) to Article 48(2), the same is also reproduced as under:‑‑ "(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."

5. In support of the petitions, the main arguments have been advanced before us by Mr.Abdul Hafeez Lakho, although we have also been addressed by Mr.U.Naimat Molvi, Mr.S.M.Saeed and Mr.Khalid Malik, besides Mr.Sirajul Haq Memon and Mr.Hussain Shah Rashdi who have appeared in these cases as pro bono publicos. Mr.Fatehyab Ali Khan has appeared as intervenor in C.P. No.D 795 of 1990 and MrAbdul Hafeez Lakho has appeared both on behalf of Ms.Benazir Bhutto who is a pro forma respondent in C.P. No.D‑754 of 1990, and Mr.Aftab Shahban Mirani, the ex-Chief Minister of Sindh, who is the petitioner in C.P. No.D‑836 of 1990. The learned counsel have inter alia contended that the action taken by the President, which, as pointed out earlier, is purported .to have been taken by him under Article 58(2)(b) of the Constitution, has neither any nexus with the prerequisites referred to therein nor the same is even otherwise justifiable as it is mala fide and unconstitutional. Referring to the provisions of Article 58(2)(b), the learned counsel have argued that, as is evident from their language, the President has been empowered in his discretion to dissolve the National Assembly only if in his opinion a situation has arisen where 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. No such situation had arisen at the time of the taking of the impugned action. The Prime Minister enjoyed the support of the‑ members of the National Assembly where the party in power had a clear majority. The Government had even passed the budget in June, 1990, shortly before the taking of the impugned action.No doubt, the law and order situation in one of the provinces was not satisfactory but the same, according to the learned counsel, can hardly warrant the action taken by the President. The other grounds given by the President in the dissolution order, according to the learned counsel, are also extraneous and have, no nexus with the preconditions laid down in Article 58(2) (b), which can be invoked and in case of a grave emergency where the entire machinery of the State has been paralysed. It has been further argued that, the dictum laid down by the Supreme Court in Haji Saifullah's case (P L D 1989 S C 166) is fully attracted to the present case as the facts of the two cases are identical.

6. However, this view is not shared by Mr. S.Sharifuddin Pirzada, learned counsel appearing on behalf of the respondent Federation. According to him, the provisions of Article 58(2) (b) have the purpose to ensure that the Government carried on in accordance with the provisions of the Constitution. The ground; stated in the President's Order clearly indicate that there was a deadlock and the authority of the Government had been eroded and, therefore, the President ha; exercised his powers in good faith and has acted reasonably, fairly and ii accordance with the spirit of the Constitution. The reasons given in the order are specific and have been further supported by tangible material. The allegations o mala fides levelled against the President have also been denied as there is no material to support such allegations. The impugned action, according to the learned counsel has been taken by the President as there was no other alternate remedy available to him, but to dissolve the National Assembly. Referring to the judgement of the Supreme Court in Haii Muhammad Saifullah's case, the learned counsel has contended that the same is not attracted to the facts of the present case as the impugned order in the present case gives specific reasons, each one of which has a nexus to the situation contemplated in Article 58(2). (b) of the. Constitution, which was not the case in the earlier case.

7. The question as to the powers of the President vis‑a‑vis Article 58(2) (b) of the Constitution came up for discussion in Khawaja Muhammad Sharif v. Federation of Pakistan ( P L D 1988 Lah. 725) before a Full Bench of the Lahore High Court. It would be relevant to point out here that a similar action had been taken by the late General Muhammad Zia‑ul‑Haq, the former President of Pakistan in 1988 as the National Assembly which had been elected in 1985, was dissolved and the then Prime Minister and his Cabinet were dismissed. Subsequently by similar action taken by the respective Governors of the four provinces, the Provincial Assemblies were also dissolved. The promulgation purporting to be under Article 58(2) (b) of the Constitution, issued by the then President, read as follows:‑‑ "Whereas the objects and purposes for which the National Assembly was elected have not been fulfilled; And whereas the law and order in the country have broken down to an alarming extent resulting in tragic loss of innumerable valuable lives as well as loss of property; And whereas the life, property, honour and security of the citizens of Pakistan have been rendered totally unsafe and the integrity and ideology of Pakistan have been seriously endangered; And whereas in my opinion 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. Now, therefore, 1, General Muhammad Zia‑ul‑Haq, President, in exercise of the powers conferred on me by clause (2) (b) of Article 58 of the Constitution of the Islamic Republic of Pakistan hereby dissolve the National Assembly with immediate effect and in consequence thereof the Cabinet also stands dissolved forthwith. (Sd.) General (M.Zia‑ul‑Haq) "

8. The Full Bench of the Lahore High Court by its unanimous decision struck down the action taken by the President as illegal, unconstitutional and having no nexus to the pre‑conditions laid down by Article 58(2) (b) of the Constitution. The learned Chief Justice, who wrote the leading judgment observed as:‑‑ "Whether it is `subjective' or `objective' satisfaction of the President or i is his `discretion' or `opinion` this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representatives of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law."

9. Another learned Judge constituting the same Bench (Rustam S. Sidhwa, J.), while referring to Article 58(2) (b) of the Constitution, in his judgment observed:‑‑ "What is intended by the language of sub‑clause (b) of clause (2) is the failure of the functional working of the National Assembly through Ministers belonging to the majority party, because they are not able to run the Government with confidence and courage what is covered by sub‑clause (b) is the functional working of the party, in power, for where it has strength, it effectively controls legislative and executive functions and where it is weak it cannot effectively do so." Leave was thereafter granted by the Supreme Court to appear against the said judgment in Haji Muhammad Saifullah's case (PLD 1989 SC 166). Holding that the question raised by the petitioners could be subjected to a judicial review for the reasonable exercise of opinion and subsequent discretion by the President while purporting to exercise his powers under Article 58(2) (b) of the Constitution, Nasim Hassan Shah, J., who delivered the leading judgment in the case observed:‑‑ "Thus, though the President can make his own assessment of the situation as to the course of action to be followed but his opinion must be founded on some material. In the present case the President himself chose to state the grounds on which he was baking his action. As the grounds have been disclosed their validity can be examined. The first four grounds stated in the order for dissolution, were, as already noticed, extraneous having no nexus with the preconditions prescribed by Article 58(2)(b) 'of the Constitution empowering the President to dissolve the National Assembly in his discretion. As for the fifth and last ground, namely, that "a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution" nothing was shown either before the High Court or before us that the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which was preventing the orderly functioning of the Constitution. Indeed, it appears that the first mentioned four grounds are the basis for the assertion made in the last mentioned ground that the Government could not be cried on in accordance with the provisions of the Constitution. But as observed already all the first mentioned four grounds were extraneous to and had no nexus with the preconditions prescribed by Article 58(2)(b). Hence, in the eyes of law, no basis existed on which the President could form the opinion "that a situation had arisen in which the Government of Pakistan cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary", But unless the President be of the said "opinion", he cannot pass an order of dissolution even in exercise of his discretion because under sub‑clause (b) of clause (2) of Article 58 his `opinion' in this behalf is a condition precedent to the exercise of the discretion. Thus, if it can be shown that no grounds existed on the basis of which an honest opinion could be formed, the exercise of the power would be unconstitutional and open to correction through judicial review (see Ghulam Jilani v. Government of West Pakistan PLD 1967 SC 393.)"

10. The main issues before us, which we have to determine, are: (i) Whether there is any nexus between the grounds stated in the President's order and the prerequisites for the exercise of the President's discretion under Article 58(2)(b), and (ii) Whether the said grounds can be sustained on merits. Turning to the language used by the Constitution‑makers in sub‑Article (2), it begins with the words "notwithstanding anything contained in clause (2) of Article 48, the President may also dissolve the National Assembly in his discretion The use of the non obstante clause in sub‑Article (2) of Article 58 clearly indicates that the power with which it vests the President, is distinct from the discretionary powers referred to in Article 48(2). Reference to clause (b) in Article 58(2) indicates that it postulates a situation wherein "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". Learned counsel arguing the case in support of the petitioner have contended that Article 58(2)(b) contemplates a situation of great emergency where the machinery of the Government has been totally paralysed. Such a situation, according to the learned counsel, had arisen in 1977 when the people were at war with the National Assembly and the Prime Minister was not advising its dissolution. The Government machinery then had been totally paralysed, which was not the case in the present case. This very question came up for discussion before the Supreme Court in Haji Muhammad Saifullah Khan's case and Nasim Hassan Shah, J., with whom the majority of the learned Judges constituting the Bench concurred; observed: "Thus the intention of the law-makers, as evidenced from their speeches and the. terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution." Another learned Judge (Shafiur Rahman, J.), in the same judgment observed: "The expression, "cannot be carried on" sandwiched as it is between the "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 decree of performance or the quantum of achievement. It concerns itself with the breakdown of the constitutional mechanism, a stalemate, or deadlock in ensuring the provisions of the Constitution." The Court were, however, dealing only with a hypothetical issue and there yet could be a situation, not of grave emergency, stalemate or deadlock, where in the opinion of the President the Government of the Federation could not be carried on in accordance with the Constitution and an appeal to the electorate is necessary. Mr.Khalid Malik has referred to the various dictionary meanings of the word "cannot". According to Ballentine's Law Dictionary (Third Edition) page 170, "cannot" has been interpreted as "A word so mandatory in a statute as to preclude a choice. Burtnett v. King, 33 Cal. 2d 805". Black's Law Dictionary L (Fourth Edition) at page 260, defines "cannot" as "that one is not able (to do some L act)". "Cannot" has also been defined by Stroud;s Judicial Dictionary (Fourth L Edition) Volume 1, to include "a legal inability as well as physical impossibility". "Government" has been defined in the Stroud's Judicial Dictionary (Fourth Edition) Volume II at page 1184 as follows: "I take the word "Government"" to signify the established system of political rule, the 'governing, power of the country consisting of the executive and the legislature considered as an organized entity and independently of the persons of whom it consists from time to time. (Dr.Dickson, J., in Burns v. Ransley (1949) A.L.R. 817)." MrAbdul Hafeez Lakho has argued that the "Government" cannot be construed in a narrow sense to mean the Government headed by the former Prime Minister, but in a much broader sense as was observed by Rustam S.Sidhwa, J., in Muhammad Sharit's case (PLD 1988 Lahore 725). According to the learned Judge, "The expression Government of the Federation is not limited to anyone particular function such as the executive, the legislature, or the judicial, but includes the whole functionine of the Federal Government in all its Another learned Judge (Shafiur Rahman, J.), in the same judgment observed ramifications". Although it is difficult to visualise different situations which would attract the provisions of Article 58(2)(b), but suffice it to say that the situation contemplated by Article 58(2)(b) is a situation excluding all other avenues but to refer the matter to the electorate for its fresh verdict. The word "appeal" referred to in clause (b) of Article 58(2) has also a special significance. In Oxford Dictionary, the meaning of the word "appeal" is given as "removal of the cause or a suit from an inferior Court to a superior Judge or Court for re‑examination or review". Accordingly, the term "appeal referred to in clause (b) of Article 58(2) suggests reference of the matter to the "higher forum", which, in the present case, is the electorate.

11. Mr.S.Sharifuddin Pirzada has, however, contended that there is direct nexus between the grounds given in the dissolution order and the prerequisites referred to in Article 58(2)(b) for invoking the same. But, according to him, the question in regard to the sufficiency or the insufficiency of the grounds, upon which the opinion of the President has been formed, would be outside the ambit of the judicial review. The learned counsel has also questioned the correctness of the observations made in the judgment of Lahore High Court in the case of Muhammad Sharif, earlier noted in this judgment, that, if one reason for the action is invalid, the order goes in its entirety.

12. So far as the first contention is concerned, it requires examination of the. grounds of the President's order on merits but before undertaking such exercise, I would first like to deal with the two other contentions raised by Mr.S.Sharifuddin Pirzada.

13. Article 58(2)(b) empowers the President to make an appeal to the electorate where he has formed an opinion as to a situation as contemplated in the said Article. In Star Rolling Mills v. Commissioner of Income‑tax PLD 1974 O Note 129 at page 189, it has been observed that "an opinion on the basis whereof a statutory authority is entitled or empowered to take any action or initiate any 0 legal proceeding, may be inaccurate or erroneous but it must be an honest opinion or conviction, based on tangible material capable of sustaining such opinion, and not a mala fide opinion or a colourable exercise of statutory power". In this regard, the following observations of Cornelius, CJ. in Abul Ala Maudoodi v. Government of West Pakistan PLD 1964 SC 673, which have been quoted by Muhammad Afzal Lone, J. in his judgment in Muhammad ShariPs case are also noteworthy. It was observed: " ..... it is a duty of Provincial Government to take into consideration all relevant facts and circumstances. That imports the exercise of an honest judgment as to the existence of conditions in which alone the opinion may be formed, consequent upon which, the opinion must be formed honestly, that the restriction is necessary. In this process, the only element which I find to possess a subjective quality, as against objective determination, is the final formation of opinion that the action proposed is necessary. Even this is determined, for the most part, by the existence of circumstances compelling the conclusion. The scope for exercise of personal discretion is extremely limited As I have pointed out, if the section be construed in a comprehensive manner, the requirement of at honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the Governmental agency is clearly a prerequisite to the exercise of the power. In the period of foreign rule, such an argument, i.e. that the opinion of the person exercising authority is absolute may have at times prevailed, but under autonomous rule, where those who exercise power in the State are themselves citizens of the same State, it can hardly be tolerated. And of course, if the State have a Constitution obliging that legal restrictions on certain freedoms should be reasonable the objection can only be raised in defeat and disrespect of the Constitution" In the case of Muhammad Sharif, a question arose, whether the discretion exercised by the President under Article 58(2) read with Article 48(2) was open to a judicial review. It is pertinent to note the observations of the learned Chief Justice in this regard, which appear at page 759 of the report. The learned Judge observed: " .... The `discretion' or formation of `opinion' cannot be based on illusions, fancy or whim. It is understandable that if the President has any justifiable reason to exercise his `discretion' in his `opinion' but does not wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in confidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is not confined to the office‑holder for the time ,being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have no nexus ‑to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects " Rustam S.Sidhwa, J., another learned Judge constituting the Bench, while dealing with the same aspect of the matter, observed: " ..... The opinion of the President under sub‑clause (b) of clause (2) of Article 58 is a condition precedent to the exercise of discretion and if it can be shown that there were grounds, having a nexus with the constitutional requirements, however slim or flimsy they may be, the Court would not interfere, but if it can be shown that there was no material, or extraneous material on the basis of which the opinion was reached, the exercise of the power would be unconstitutional." Muhammad Afzal Lone, J., while addressing himself to the question in the same case, observed: " ..... Though the President can make his own assessment but his opinion must be founded on some material. It may, however, be added that there is no limitation as to the material on which his judgment is based. It is, therefore, difficult to agree that the President's power to form an opinion is unfettered and discretion vesting in him is absolute." More or less similar observations were made by Gul Zarin Kiani, J., as he observed: " ..... It is true that the President may act on host of circumstances made available to him through the various agencies of the State. So long as the grounds disclosed have nexus to the enumerated situation in Article 58(2)(b), Court may not examine and pronounce upon the sufficiency/adequacy of the grounds for substituting its own opinion of the situation but if the disclosed grounds bear no reasonable nexus with the provision of law relied upon, the Court is obliged to act and pronounce upon the validity of action." When the matter went before the Supreme Court in appeal, the Court while dealing with the same aspect of the matter in Muhammad Saifullah Khan's case observed: " ..... This submission is correct so far as it goes namely that the power to dissolve the National Assembly under Article 58(2)(b) is a discretionary power of the President, which can be exercised without the advice of the Prime Minister but the real question is as to whether the said discretion is as uncontrolled as it is claimed and cannot "be called in question on any ground whatsoever" as provided for in clause (2) of Article 48 ? Or is it a discretionary power which must be exercised reasonably, fairly and in terms of the statute and its spirit and if not so exercised, can be serutinised through judicial review?" D'Smith in his book known as "Judicial Review of Administrative Actions" (Second Edition) at page 264, while dealing with the extent of the jurisdiction of the Courts to examine the discretionary exercise of powers by an authority, has observed: " ..... The exercise of a discretion may be impugned directly or indirectly. The indirect method of challenge is the more common. A person aggrieved by the exercise of a discretionary power may, in instead of attacking the merits of the exercise of the discretion, contend that the repository of the discretion has acted without jurisdiction or ultra vires because of the non‑existence of a state of affairs upon which the validity of the exercise of the discretion depends. Or he may contend that the repository of the discretion has failed to observe the rules of natural justice (if a duty to act judicially has been cast upon it) or other essential procedural requirements. If his contentions are successful the Court will hold the discretionary act to be invalid, and the fact that the true reason for instituting proceedings will have been his dislike of the manner in which the discretion itself was exercised is not a valid objection to the proceedings."

14. Mr.S.Sharifuddin Pirzada has also placed reliance upon the following observations made in the case of Abul Ala Maudoodi, PLD 1964 SC 673 which appear at page 709 of the report, as follows:‑ " ..... The function of judicial review is to act as "a check against excess of power in derogation of private right", yet judicial review cannot supervise all administrative adjudications for it exists to check, not to supplant them On a point of evidence, it is only when the case proves‑to be one of "no evidence" that the Courts will be entitled to intervene, and as to the conclusions reached by the administration, the Courts will respect them if all other conditions are satisfied, just as they respect the judgments of the Courts subordinate to themselves. The conditions of the exercise of judicial review ordinarily are that the petitioner should have locus standi to pursue the matter, that an adversary position should have developed, i.e.; that conflicting legal stand points have been taken so that justiciable issues are raised, that the action within the administration should be final, and that the law itself must not indicate that the public interest requires that it should be operated exclusively within the administrative sphere Reliance was also placed by Mr.S.Sharifuddin Pirzada upon the observations made by the Supreme Court in Lahore Improvement Trust v. Custodian of Evacuee Property PLD 1971 SC 811, where it was observed: ......... Another principle attracted in the case is that before an order passed by a public authority is struck. down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. See the Chairman, East Pakistan Railway Board, Chittagong and another v. Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725, it was remarked in this judgment."

15. It may be pointed out that Article 58(2)(b) does not vest the President with absolute discretion as is the case with many other Articles in the Constitution, where the discretion with which the President has been vested is absolute and cannot be called in question by the Courts. The discretion to be exercised by the President under Article 58(2)(b) is to be conditioned with his opinion in regard to the existence of the circumstances requiring an appeal to the electorate. The Constitution, therefore, provides a check upon the discretion to be exercised by the President, the intention being that such discretion should not be exercised arbitrarily or unreasonably as has been observed by the Supreme Court in Haji Muhammad Saifullah Khan's case. The Court, therefore, would have jurisdiction to subject such action to a judicial scrutiny, but the question, whether there was sufficient material before the President to invoke Article 58(2)(b), 58(2)(b), or on which a just and reasonable opinion could be formed, of course, cannot be examined by the Courts. However, if the Court comes to a conclusion that the President has acted upon grounds which are non-existent, or extraneous, having no nexus to the prerequisites for exercise of the power under Article 58(2)(b), then the Courts can strike down the action as illegal or unconstitutional

16. This leaves us with the other limb of the argument of Mr.S.Sharifuddin Pirzada that if some of the grounds stated in the order of dissolution cannot be sustained, the same cannot render the entire order invalid. In this regard a number of authorities have been cited by the learned counsel supporting the present constitutional petitions but I propose to refer only to the case of Government of West Pakistan v. Haider Bux Jatoi PLD 1969 SC

210. In this case the Government of West Pakistan had challenged the order of a Division Bench of this Court quashing an order whereby the period of detention of one Haider Bux Jatoi, the respondent in the case, had been extended under section 3(5-d) of the West Pakistan Maintenance of Public Order Ordinance, 1960. The allegations against the respondent were that he was a propagandist of Akhand Bharat. In this case a question arose as to the fate of the detention order if any of the reasons given in the detention order were found to be bad. The conclusions drawn by the Supreme Court, which appear at page 221 of the report, are as follows:- "In conclusion the learned Judges held that as the Board had formed its opinion on the ground "that the detenu was a propagandist of Akhand Bharat, wishing for the revival of old Hind which meant undoing of Pakistan" for which there was no basis or justification and it could not be said how far the Board was influenced by this ground, the opinion of the Board that there was sufficient cause for detention of the respondent was outside the scope of subsection (5-d) of section 3 of the Ordinance. Reliance was placed on the view expressed by a Full Bench of the High Court in Rehmat Elahi v. Government of West Pakistan PLD 1965 ,Lah. 112 that wrongful inclusion of ground render orders of arrest and detention under section 3 of the Ordinance illegal. It was said in that case that if there are more than one grounds on which the order of detention is based then each ground has contributed to the satisfaction of the detaining authority and no ground can be excluded from consideration in judging the legality of the order of detention. In conformity with this view the learned Judges quashed the order of the Government dated 12th March 1968, extending the period of respondent's detention for three months with effect from 18th March 1968, and directed that he be released forthwith."

17. Mr.S.Sharifuddin Pirzada has, however, contended that the above observations were made by the Supreme Court in a different context, as the Supreme Court was dealing with a detention matter. In the present case, the considerations for the Court would be completely different. Our attention was invited to the case of Maulvi Tamizuddin Khan, Governor-General's Special Reference No.l/1955 (PLD 1955 FC 435), where an argument was advanced that in the reference there were certain facts which were not mentioned in the proclamation of the 24th October, 1954, by which the Constituent Assembly was dissolved by the Governor‑General. The same was dealt with by Muhammai Munir, CJ as under:‑ "Mr.Pritt also appeared to complain that in the Reference there are certain facts which were not mentioned in the Proclamation of the 24t1 October, 1954, by which the Constituent Assembly was dissolved. But the Proclamation cannot be treated to have been a plaint or a written statement in a suit in which all facts which led the Governor‑General dissolve the Assembly should have been exhaustively mentioned. Even some facts or some legal position was not present to the mind of the Governor‑General when he dissolved the Assembly, there is nothing preclude him from asking this Court whether the dissolution could b~ defended on the additional facts and the subsequently discovered legal position."

18. The next case referred to by Mr.S.Sharifuddin Pirzada on the point is the case of Moulvi Muhammad Ali v. Crown PLD 1950 FC

1. In this case, the Federal Court was dealing with the petition of Moulana Abul Ala Maudood which had been filed against his detention under the Punjab Public Safety Act (I of 1947). One of the questions before the Federal Court was, whether the order of detention of Moulana Abul Ala Maudoodi would still be valid notwithstanding the fact that one of the reasons given in the detention order was such as for which he could not have been ordered to be detained under the said Act. The Court came to a conclusion that one bad reason would not vitiate the entire order However, the facts of this case appear to be distinguishable as it was held in that case that, according to the provisions of section 3 of Act 11 of 1947, the detaining authority was not under any obligation to state reasons for such action. Referent has also been made by Mr.S.Sharifuddin Pirzada to the case of Rafique Ahmed Sheikh v. Crown PLD 1951 Lah.17 where Muhammad Munir, C.J., while dealing with a similar argument, observed: " ..... If a detaining authority gives four reasons for detaining a may without distinguishing between them, and any two or three of the reason are held to be bad, it can never be certain to what extent the bad reason operated on the mind of the authority or whether the detention order would have been made at all if only one or two good reasons had been before them". This obiter dictum was followed in the other two case cited above as an authority for the proposition that if the ground disclosed contained grounds, some within the ambit of the Act and some outside it, the order of detention would be vitiated wholly as in that even it would be impossible to say to what extent the detaining authority was influenced by acts outside the Act in making the order of detention. I am doubtful of the correctness of this rule which appears to me to have been stated somewhat too broadly. The logical result of the rule, if it were applied in the unqualified manner suggested in the two cases cited above, would be that, if among ten reasons for the arrest of a person who was believed to be acting in a manner prejudicial to public safety was an 'significant reason that in addition to the other acts which were calculated to prejudice public safety, he was also engaged in an activity not within the power of the Provincial Government to prevent, the order of arrest will have to be held to be wholly unsustainable. Any such result m my opinion has to be avoided, because otherwise, the High Court while hearing a habeas corpus petition would in such a case be substituting its own judgment for the judgment of the arresting authority in holding that the remaining nine reasons anyone of which could have been a good reason for the arrest were not individually, or collectively in fact the reasons on which he could have been arrested, and thus that Court would be taking upon itself a responsibility which under the Statute rests on and vests in some other authority."

19. In another case cited by Mr.S.Sharifuddin Pirzada reported as The State of Maharashtra v. Babulal Kriparam Takkamore AIR 1967 SC 1353 the Supreme Court of India while dealing with a similar situation, opined: "Where an order is based on several grounds, some of which are irrelevant then if there is nothing to show that the authority would have passed the order on the basis of relevant and existing grounds that order cannot be sustained. Where, however, the Court is satisfied that the authority would have passed the order on the basis of the other relevant and existing grounds and the exclusion of irrelevant or non‑existing grounds could not have affected the ultimate opinion or decision of the authority, order has to be sustained."

20. MrAbdul Hafeez Lakho, on the other hand, has contended that whenever the action of the authority exercising the power is to be based upon its opinion, the principles of opinion forming would remain the same. Reliance has been placed by the learned counsel on 26 I.T.R. 732 = A I R 1955 SC 271, 87 ITR 349 = (1937) 2 SCR 184 and 37 ITR 288 ‑ AIR 1955 SC 1295. In all the three cases, it has been held that where an opinion is formed on the grounds which are partly relevant and partly irrelevant, the entire opinion would be vitiated.

21. In my opinion, the question would depend upon the facts of each case. If the grounds stated in the order are distinct and separable or it is clear on the face of the order, which of the grounds are the main grounds on which the opinion of 4 the authority has been based then the grounds which have no relevance to the preconditions or are insignificant can be ignored by the Court. In the present p case, as has been held by the Supreme Court, in the case of Haji Muhammad Saifullah Khan, the Courts have to direct their judicial scrutiny to the objectivity of the situation. Article 58(2)(b) is to be invoked by the President to meet a R t serious situation and the entire purpose of the exercise might be defeated merely because one or some of the grounds in the President's Order are found to be unsustainable. If a serious situation has arisen requiring an appeal to the electorate, then the action of the President will have to be examined objectively. However, if none of the grounds is found to have nexus with the preconditions for the exercise of such power, the action can then be struck down. In the cases referred to by MrAbdul Hafeez Lakho, the issues before the Courts were entirely different. I am, therefore, inclined to agree with Mr.S.Sharifuddin Pirzada that the cases relied upon by Mr.Lakho are not attracted to the present case.

22. Turning now, to the grounds stated in the impugned order, it has been stated that the mandate given by the people to the National Assembly had been defeated by internal dissensions, frictions, scandalous `horse‑trading', furtherance of personal interests and corrupt practices, in contravention of the Constitution and the law. The National Assembly also failed to discharge substantive legislative functions other than adoption of the Finance Bill. The authority of the Provinces was usurped as the executive authority of the Federation was extended to the Provinces. The Council of Common Interests, constituted under Article 153 of the Constitution, which is an important institution meant for safeguarding the rights of the federating units and the National Finance Commission another important institution, were not allowed to meet. The Senate was also ridiculed and its constitutional role was eroded. Corruption and nepotism in the Federal Government and its related agencies had resulted in the erosion of their credibility. The Federal Government also failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and the Government failed to control the law and order and politics of violence among its citizens. The superior judiciary was ridiculed and the resources of banks and other statutory corporations were misused and the powers of the President under Article 45 to grant pardon, reprieve and respite or to remit, suspend or commute any sentence were exercised without his prior approval.

23. Before the examination of the grounds individually, it is pertinent to note that, as has been pointed earlier, the Court cannot look into the sufficiency or insufficiency of the grounds or the proof as the Court is not required to hold a separate enquiry into the charges. The standard of proof, in the form of material to support the charges, also cannot be the same as required for proof of a criminal charge. All that this Court has to examine is, whether the President has exercised his power within the perimeters of the Constitution or the same is in excess of his authority, and in that, the Court must also be satisfied that the action has been taken by the President in good faith and not in a colourable exercise of , power. It is also pertinent to note that while determining whether the opinion has been honestly or faithfully formed by the President, care must be taken that the Court does not substitute its own opinion for that of the President. Article 58(2)(b) does not confer any privilege on the President but it imposes a constitutional obligation upon him to act when in his opinion, the Government of the Federation cannot be run in accordance with the Constitution and an anneal to the electorate is necessary. Consequently, as was held by the Supreme Court in PLD 1971 SC 811, it would be the duty of the Court to explore every possible explanation for the validity of the action and the impugned action would be liable to be struck down only when the grounds upon which it has been taken are found to have no nexus with the preconditions laid down by Article 58(2)(b) of the Constitution either individually or collectively. No doubt, the Courts are under an obligation to guard the Constitution and to preserve its parliamentary democratic character, but in that the Courts will only have to examine whether the opinion has been exercised by the President, keeping in mind the constitutional requirements or he has simply acted on whim or fancy. However, if the action taken by the President is neither found to be in excess of the authority nor it is found to be mala fide the Courts cannot enquire as to whether, the opinion has been correctly formed. The onus would be discharged by the Federation by production of tangible material before the Court to show that the opinion under Article 58(2)(b) has been reasonably and honestly formed. It would be in this background that, I propose to examine the grounds.

24. Reverting to the ground No.1, although there is no positive proof to sustain the charge that the National Assembly had lost the confidence of the people of Pakistan but the same can be ascertained only, if there is a wide scale agitation in the country as had happened in 1977 when the people had come out into the streets to lodge protest against rigging of the elections. There, however, appears to be no controversy on the point that after the elections were held in 1988 on party basis, Pakistan People's Party, had although emerged as a single largest party, as it had secured 93 seats against 54 secured by the Islami Jamhoori Ittehad which emerged as the next largest party, but the former failed to get a clear majority in the House. Forty seats had been secured in the National Assembly by persons who had contested the elections as independents. After the elections of the women's seats, the position, which emerged in the National Assembly, consisting of 237 members, was, that, the P.P.P. had obtained 108 seats against 57 secured by the UI. It was under these circumstances that the P.P.P. was invited by the President to form the Government as after mustering support of some independent members the party could show a simple majority in the House. This is said to have created a situation resulting in dissensions, floor crossings, change of loyalties and `horse‑trading' because the two major parties were constantly trying to outvote each other. A no‑confidence motion was tabled in the House against the Pakistan People's Party, which, although was defeated, but twenty‑two members of the National Assembly had to be kept in the Prime Minister's Chamber when the no‑confidence motion was being voted by the House. In this respect, it has been pointed out that, the urge for horse‑trading and purchase of the loyalties of the members was so strong that even the most secret fund, meant for protection of the State, was not spared from being misused. According to the allegations, a sum of Rs.117.500 million was acquired on the orders of the former Prime Minister's staff during 1989‑90 through seven supplementary grants and the entire amount was sanctioned, drawn and spent between the 16th of October, 1989 and the 6th of May, 1990. An amount of Rs.200.000 million was obtained on 16‑10‑1989 and the second supplementary grant of Rs.500.000 million on 26‑10‑1989. The said amounts were drawn and disbursed on the 25th and the 26th October, 1989 and were paid to the former Prime Minister and her confidants. The amounts had been drawn during the time when the vote of no‑confidence had been proposed by the Combined Opposition Parties and communicated to the Secretary, National Assembly and leave had been granted by the House to move the no‑confidence resolution on 26‑10‑1989 which was eventually voted on 8‑11‑1989 and, as pointed out above, lost by the opposition parties by a margin of twelve votes. The former Prime Minister, who, as pointed out earlier, is a respondent in C.P. No.D‑754 of 1990, has filed a counter‑affidavit, denying the allegation that the amount was drawn from the secret fund to purchase the loyalties of the members of the Combined Opposition Parties. According to her, the amount was paid to the D.I.B. under the rules and used for projects pertaining to sensitive issues. No more proof has been produced by the Federation except for a letter (Annexure A‑1), addressed to the Deputy Director (Administration) Intelligence Bureau, Islamabad by Major (Retd.) Masood Sharif Khan, Director, Intelligence Bureau dated 12‑9‑1990, indicating that different amounts from ‑the secret fund. had been delivered on the instructions of the then Special Assistant to the ex‑Prime Minister. As has been pointed out earlier, it is not possible for us to resolve the factual controversies between the parties on the basis of the respective affidavits or counter‑affidavits filed by them in this case. All that we are required to examine, is that, the grounds I stated in the dissolution order have been supported by material and such material! must be placed before the Court 'to determine whether the opinion has been reasonably formed by the President and the consequent discretion has been properly exercised by him. The onus to support the grounds with material also T lies upon the respondent Federation. It has further been shown that the members of the National Assembly were transported from Rawalpindi to Swat, unlawfully i and in breach of the prevailing regulations and the law in C‑130 aircraft belonging to the Pakistan Air Force, the use of which was confined under the law to official purposes only. The ex‑Prime Minister is ultimately said to have succeeded in purchasing the loyalties of three of the members belonging to the Combined Opposition Parties who were shown later over the national media of Television to induce other I.J.l. members to defect and join the ruling party. Two of such persons were also made Federal Ministers immediately. after they changed their loyalties during the no‑confidence motion as a reward.

25. It may be pointed that by virtue of Article 91(2‑A) of the Constitution "the President shall invite the member of the National Assembly to be the Prime Minister who commands the confidence of. the majority of the members of the National Assembly" Miss Bhutto being the leader of the largest single party was invited by the President to form the Government, which brought the Pakistan People's Party into power. In order to affectivity control the executive and the legislative functions of the State the party in power needed the continuous support of the majority of the members of the National Assembly. The party, therefore, needed support of some independent members in the National Assembly as it had failed to win sufficient number of seats there which could give it even a simple majority. However, notwithstanding the support of some independent members, the party in power only enjoyed a marginal ascendency over its rival, the C.O.P. with the support of some independent members of the Assembly which it enjoyed. The support, therefore, enjoyed by the party in power was so fragile that crossing of floor only by a few could tilt the balance in favour of the Opposition. Hence, it has been alleged that resort was had to political bribery, horse-trading and corruption. The Constitution envisages running of the Government by the party in power having the actual support of the majority of the members of the National Assembly, but not the support which has been achieved through inducement and corruption. These are the charges levelled against the members of the National Assembly and, as has been pointed out earlier, no separate enquiry can be held by us into them. Rustam S.Sidhwa, J., in Muhammad Sharifs case PLD 1988 Lah. 725, while enumerating different situations, under which the power conferred under Article 58(2)(6) can be validly exercised observed: " Thus, where the National Assembly is beset with internal dissensions and problems and the party allegedly in power does not have a clear majority, or having tenuous support from its members, is not able to carry on the functions of the Government with confidence, and is avoiding to take important decisions, which require to be taken, for fear that it may be outvoted, in case a debate is held in respect thereof, a situation can be stated to have arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution." Now, the question is, was there any chance of a retreat? It was for the President to form an objective opinion and if the President was of the opinion that he had no other choice but to dissolve the Assembly or that the members of the National Assembly were incorrigible, then, under the circumstances all that we are required to examine is, whether the opinion has been honestly and reasonably formed. If the opinion has been honestly and reasonably formed by the President, then the impugned order can be sustained upon this. ground as there appears to be nexus between the same and the preconditions which would attract the provisions of Article 58(2)(6) of the Constitution. Nothing has been pointed out in this regard which can make it doubtful that the opinion has not been reasonably or honestly formed. Under the circumstances I fully agree with Mr.Pirzada that the impugned order can be sustained upon this ground.

26. Another allegation levelled in the dissolution order is that the National Assembly was unable to discharge substantial legislative functions. There is no controversy on the point that a bulk of legislative business was still pending before the National Assembly at the time of its dissolution. It has been pointed out that the thirty‑five Ordinances/Bills presented before the National Assembly during its twenty months' tenure could not be processed and were allowed to lapse. However, the reasons for the failure of the Assembly have been given by the Federation in the written‑statement itself, attributing such failure to the fact that the Government had failed to enjoy sufficient representation in the Senate. This, in my opinion, cannot be made a basis for dissolution of the National Assembly as the Senate had been elected by persons who had no affiliation with the ruling party. In any case, neither the performance of the National Assembly V can be judged on the touchstone of the legislative work disposed of thereby nor V the President is empowered to do the same. As was observed by the Supreme V Court in Haji Muhammad Saifullah's case the quantum of the performance of the Government and the degree of its achievement were outside the purview of Article 58(2)(b). Consequently, the impugned order cannot be sustained upon this ground.

27. It has next been alleged that the Government failed to call a meeting of the Council of Common Interests or the National Finance Commission. Press reports have been placed before us, according to which it was declared by two of the Ministers of the former Government that "prevailing acrimonious political environment prevented the Government from calling the meeting of the C.C.I:" One of the Ministers was quoted by the "Frontier Post" Peshawar, dated 22‑6 1990 as saying that without necessary spadework a meeting of the Council "would create a division among the federating units and the Centre". No doubt, the ‑Government in power by failing to call the meeting of the C.C.I. or the N.F.C. did not strictly adhere to the spirit of the Constitution but as no time schedule was , provided for such meetings, mere delay in calling the meeting of the said '_ institutions respectively could not provide any cause for the dissolution of the National Assembly. The matter in regard to C.C.I., in any case was pending adjudication before the Supreme Court at the time of the dissolution. The dissolution of the National Assembly on account of the failure of the Federal Government to call a meeting of the N.F.C. is equally unjustified. By these omissions, committed by the former Government, neither the Constitution appears to have been undermined nor violated resort, therefore, to the provisions of Article 58(2)(b) in this regard, in my opinion, would not be justified. Similarly extension of the People's Programme to the federating units, in my view, did not tantamount to the extension of the authority of the Federation to the Provinces in violation of Article 97 of the Constitution. The People's Programme, as has been pointed out by the learned counsel for the petitioners, is purely a welfare programme and it falls within the ambit of item No.25 in the "Concurrent Legislative List". Moreover, the scheme was not in derogation of but in addition to the functions assigned to the Provinces under the Constitution. Consequently, no terms can be found between this ground and the preconditions required for exercise of powers under Article 58(2)(b). The allegations in respect of the Senate and the superior judiciary also appear to have no nexus with the pre‑requisites for exercise of power under Article 58(2)(b).Mr.S.sharifuddin Pirzada has invited our attention to the remarks written by the ex‑Prime Minister against ‑ . members of the Senate saying that they were "collaborators in treason". No doubt, Y the remarks were uncalled for and should not have been made by a responsible Y person such as the Prime Minister, however, the same cannot call for dissolution Y of the National Assembly by the President. So far as the allegations in respect of the superior judiciary are concerned, there appears to be no controversy on the point that the judgment given by the Supreme Court in the case of Zulfiqar Ali Bhutto was openly criticised with the active connivance of the Government un power. However, the superior judiciary can itself take notice of such contempt, if any, and if no notice was taken by the judiciary itself, the same would again not call for the dissolution of the Assembly under Article 58(2)(b).

28. Turning to the charge of corruption and nepotism, although, individually,; the same cannot be made a ground for dissolution of the National Assembly, but the charges must be considered not in isolation but in conjunction with the first ground. No doubt, corruption, favouritism or nepotsim, cannot be approved as those are diseases which can affect the healthy growth of any society, however, the misfortune is that, such diseases have infested many third world countries and A Pakistan is not an exception in this regard. However, any Government can be A dismissed on this ground at any time if this is held to be a valid ground for the A dissolution of the National Assembly. If individuals are found to be corrupt, they A can always be amenable to action under the relevant laws. The National Assembly can be dissolved only when the circumstances exclude any other choice for the President. As was held in the case of Muhammad Sharif by the Lahore High Court if a small dose of medicine can cure the disease, a larger dose need not be given otherwise the same might kill the patient. If any other avenue is open to the President, the extreme step of dissolving the National Assembly should not . be taken. However, as I have earlier pointed out, if considered together with the first ground, this ground has nexus with the preconditions laid down for exercise of power under Article 58(2) (b) of the Constitution.

29. The next ground referred to in the impugned order relates to the serious law and order situation in the Province of Sindh. According to Mr. S. Sharifuddin Pirzada, the law and order situation in Sindh was not only serious but the same was explosive. Under Article 148(3) of the Constitution the Federal Government was under obligation to protect the Province of Sindh against internal disturbances to ensure that the Government of the Province was carried on in .accordance with the provisions of the Constitution. It may be pointed out that deterioration of law and order situation was one of the grounds, on which the previous National Assembly had been dissolved by the former President, Late General Muhammad Zia‑ul‑Haq. In Haji Muhammad Saifullah's case, the Supreme Court while referring to the said ground observed as follows:‑ "The second reason given is that `the law and order in the country have broken down to an alarming extent, resulting in tragic loss of innumerable valuable lives as well as loss of property'. It has been attended to in the judgment of the High Court. The learned Chief Justice observed "Firstly, law and order problem is to be tackled under the Constitution by emergency powers provided under para.

10. Secondly, the law and order problem is perennial. Only in one Province it was rather serious. Rest of the country was normal." Another learned Judge (Rustam S. Sidhwa, J.) observed that "grounds (ii) and (ii) relate to law and order, which is a Provincial subject. The National Assembly has no power to legislate on it". These grounds are also extraneous to the conditions laid down in sub‑clause (b)." Mr. Abdul Hafeez Lakho has argued that the observations made by the Supreme Court in respect of the law and order situation are also applicable to the present case and since the Supreme Court has already dealt with this issue, the same can be determined only in accordance with the said observations made by the Supreme Court. Mr. S. Sharifuddin Pirzada, on the other hand, has contended that the law and order situation at the time of the dissolution of the National Assembly in the present case cannot be equated with the same in 1988. Apart from the higher crime rate involving offences like dacoities, murder, kidnapping for ransom and rape the Province of Sindh was beset with ethnic strife, resulting in loss of many lives. One of such instances quoted by him was the incident which) took place at Hyderabad on 29th May,. 1990, when several people are said to have lost their lives on account of the action taken by the then Provincial Government. No doubt, the problem of law and order in Sindh had assumed alarming proportions, and to maintain law and order is one of the primary l functions of the Government but admittedly, law and order is a provincial subject. i The Federal Government can only provide assistance to the provinces in this i regard by virtue of Article 148(3). It has been contended that the Government m~ power in order to meet the serious law and order situation should have invoked Article 245 of the Constitution instead of Article 147 by assigning wider powers to I the Army but the Government failed to perform its constitutional obligations under Article 148(3). Although, it appears that the Government had totally failed t in this regard but inability of the Government to control deteriorating law and order situation in one Province only, may not justify dissolution of the National Assembly unless it is shown that such a situation had also got its tantacles spread in the other Provinces as well, but it is pertinent to note that deterioration of law and order can only be .a result, the causes for which may be different. If the law and order situation prevailing in the Province of Sindh at the time of the dissolution of the Assemblies was a simple law and order situation, the action might not have been justified. But if the situation had sprung from causes such as ethnic strife which the Government was unable to control or which were the direct result of a particular. Government being in power, the action, by dissolution of the Provincial Assembly of Sindh would be justifiable. However, the law and order situation in only one of the provinces did not justify dissolution of the National Assembly. To this aspect of the matter I shall once again advert while considering the case of the petitioner in C.P. No.D‑836/1990 which has been filed by the former Chief Minister of Sindh:

30. It would thus be seen that apart from the ground as pointed out above, the other grounds have no nexus to the preconditions required for the exercise of power under Article 58(2)(b) of the Constitution. In a parliamentary form of democracy the National Assembly being the highest representative body reflecting the will and aspirations of the people of Pakistan, the provisions of r Article 58(2)(b) of the Constitution must be strictly construed, keeping in mind the spirit of the Constitution and the provision itself. This was also affirmed first by the Lahore High Court and then by Supreme Court in PLD 1988 Lah.725 and PLD 1989 SC 166 respectively. Mr. S. Sharifuddin Pirzada has contended that the dictum laid down by the Supreme Court in the said case is not attracted to the facts of the present case because in that case all the grounds mentioned in the dissolution order were vague and general and were also not supported by any material upon which the then President was said to have formed his opinion. It is true that the facts of the case then decided by the Supreme Court and the present case are not completely identical, however, the broad principles laid down by the Supreme Court in Haji Muhammad Saifullah's case are equally applicable to the present case. The relevant observations made by the Supreme Court have already been reproduced earlier in this judgment. Article 58(2) of the Constitution is, therefore, to be interpreted in consonance with the spirit of the Constitution and the observations made by the Supreme Court and in case, the grounds are found to be extraneous or irrelevant to the preconditions laid down in Article 58(2)(b) I for the exercise of power thereunder, the action may be struck down by the I Court. However, the action can be sustained if any or some of the grounds upon which the action has been based, are found to be valid. Learned counsel for the petitioner have pointed out that in no other parliamentary form of democracy, such unrestricted power can be exercised by the President to dismiss the National Assembly notwithstanding the fact that the same is found to have fallen short of the expectations of the President. Mr. S. Sharifuddin Pirzada while questioning the correctness of the said contention Ras, however, argued that no provision of . our Constitution can be tested on the touchstone of any other Constitution, be it the British or the Indian Constitution, but the intention of our Constitution‑ 1 makers has to be .gathered from the Constitution itself. No doubt, Mr. S. 1 Shafirfuddin Pirzada is right, as our Constitution was amended in 1985 through 1 the Constitution (Eighth Amendment) Act and a number of discretionary powers I were given to the President which the President did not enjoy under the original 1973 Constitution. Article 58(2)(b) is one of such provisions made in the Constitution conferring discetionary powers on the President. Be that as it may, but the action under Article 58(2)(b) would be warranted only when the President is of the opinion that there is no other choice left to him, except to i dissolve the National Assembly. Consequently, none of the grounds stated in the impugned order are relevant to the preconditions provided in Article 58(2)(b) except for those as pointed out earlier.

31. The next question that arises is, whether the order promulgated by the I President is mala fide. In this regard it has been argued that although the President after the impugned action had a choice to retain the cabinet headed by the former Prime Minister but notwithstanding the same he constituted a care taker Government which did not include any of the members of the former Cabinet of Ministers. Consequently, according to the counsel for the petitioners, the action of the President was politically motivated to plant persons from the Opposition parties through the "back door". Although, according to them,the former Prime Minister still enjoyed the confidence of the majority of the House but by the impugned action the leader of the Opposition, who did not enjoy majority in the House, has been asked to form the Government. Mr. Pirzada has, however, argued that as was held by the Supreme Court in Federation of Pakistan v. Saeed Ahmad Khan (P L D 1974 S C 151)‑, mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish the same. It was observed by the Supreme Court as follows:‑ "Mala fides is one of the most difficult things to prove and, the onus is entirely upon the person alleging mala fides to establish it; because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been T pointed out by this Court in the case of the Government of West T Pakistan v. Begum Aghe Abdul Karim Shorish Kashmiri (PLD 1969 SC 14), mala fides must be pleaded with particularity, and once one kind of T mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case." While expounding the expression further, the Supreme Court observed: " `Mala fides' literally means `in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary. therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the' personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of land or the taking over of industries is authorised in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law." ` If the dictum laid down by the Supreme Court is followed, then mere allegation made by the petitioners that the action taken was mala fide is not sufficient to establish mala fides. In this regard even circumstantial evidence is to be excluded. In any case, the allegation must be supported by some prima facie proof. Since no; material has been placed before us to establish that the action was taken by the President in bad faith, it cannot be held that the action taken by the President la was mala fide. The petitioners have contended that the same Cabinet of Ministers could have been retained by‑the President but at the same time there is ‑‑ controversy on the point that the President in his discretion could appoint a new care‑taker Prime Minister. The mere fact that the President did not retain the B former Prime Minister as a care‑taker Prime Minister cannot by itself give rise to li an inference that the President has acted mala fide. Apparently the former Prime Minister and his Cabinet of Ministers and the National Assembly have been II dismissed on account of the various charges made against them in the impugned order and their indulgence into the alleged acts of commission and omission which, according to the impugned order, rendered the running of the Government in accordance with the Constitution, impossible. Under such circumstances the retention of the former Prime Minister and her Cabinet of Ministers as care‑Lakers would have been nothing short of an absurdity. In any case, the allegations' of mala fides have not been supported by any prima facie proof. Under such circumstances it cannot be held that the action was taken by the President in bad faith or that the same was mala fide.

32. We were also addressed by Mr. Asar Hussain and Mrs. Shahida Jamil who appeared as pro bono publicos in support .of the impugned order. The first contention of Mr. Asar Hussain was that a judicial review in respect of the action taken under Article 58(2)(b) is not contemplated because of the mandatory requirement of holding the elections, within 90 days after dissolution of the National Assembly. According to the learned counsel, the remedy has ‑ been provided by the Constitution itself which is by appeal to the electorate. "The appeal to the electorate" would mean an appeal only to the electorate and before no other forum. Another argument advanced by Mr. Asar Hussain was that the President by dissolving the National Assembly had in fact, acted on behalf of the electorate and, therefore, his action was immune from judicial scrutiny. None of these arguments have any force. The mere fact that Article 58(2)(b) of the Constitution requires holding of elections within 90 days cannot grant immunity to the impugned order if the same is found to have no nexus with the preconditions laid down by Article 58(2)(b) for exercises of such power. It would also be erroneous to assume that the President under Article 58(2)(b) acts on behalf of the electorate. The President in fact, exercises his own discretionary power which vests in him under the Constitution and the exercise of such power must be based upon the opinion which may be formed by the President before ordering the dissolution of the National Assembly and making an appeal to the electorate. As has already been pointed out earlier, when any action, which may be taken by an authority empowered to act under a statute, is to be based upon his opinion, the Court would have power of review in such cases. I am, therefore, unable to agree with Mr. Asar Hussain. Mrs. Shahida Jamil has only placed before us some additional material on the basis of which, according to her, the impugned action can be sustained. It is pertinent to point out here that, it is for the President acting under Article 58(2)(b) to form an opinion and not for this Court. This Court in the exercise of its constitutional jurisdiction has only to examine the material and the grounds upon which the opinion of the President ` has been formed. The Court can neither substitute its own opinion for that of the President nor it is expected to conduct a separate enquiry in respect of each of the grounds as has been already pointed out above. Under the circumstances even if reference is made by us in this judgment to the material placed before us by Mrs. Shahida Jamil, no useful purpose would be served.

33. Turning now to the facts of C.P. No. D‑836/1990, which calls in question the dissolution of the Sindh Legislative Assembly by the Governor of Sindh by an order dated 6th August, 1990, it has been pleaded by the petitioner Mr. Aftab Shaban Mirani, that, after the dissolution of the National Assembly on the 6th August, 1990, on the same day, the Governor of Sindh was replaced by the present Governor. The Sindh Provincial Assembly was dissolved by him within about an hour of assuming such office.

34. The language of Articles 112(2)(b) and 58(2)(b) of the Constitution is materially the same. Article 112(2)(b) provides as follows:‑ "(2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where in his opinion,‑‑ (a) ............... (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 only distinction that can be drawn between Article 112(2) and Article 52(2) is that the Governor of a Province can dissolve the Provincial Assembly in his discretion subject to the previous approval of the President. However, it is pertinent to point out that the situation envisaged by Article 112(2)(b), in the presence of which the Governor can dissolve the Provincial Assembly, is the same as referred to in Article 58(2)(b).

35. Three grounds have been stated in the impugned order, and the first ground once again refers to the law and order situation in Sindh. Mr. Abdul Hafeez Lakho has once again argued that there is no nexus between the grounds stated in the impugned order, upon which the action of the Governor is based and the prerequisites referred to in Article 112(2)(b). Besides this, according to the counsel, there was no material before the Governor upon which his opinion could be based nor any previous sanction of the President had been obtained before dissolution of the National Assembly after the Governor is said to have formed his opinion in this regard. As to the second argument, it is pertinent to point out that no positive assertion of any kind appears in the affidavit filed by the petitioner in support of the grounds of the constitutional petition. The impugned order itself shows that the same was passed by the Governor after obtaining the requisite approval of the President of Pakistan. Since there is a presumption in favour of all official acts, the same can only be rebutted by evidence. Since no I' positive assertion of any kind has been made in this regard by the petitioner, the argument of Mr. Abdul Hafeez Lakho fails. As regards the argument that there was neither any material before the Governor nor the Governor had sufficient time to apply his mind and form an opinion upon the basis of the same, Mr. Lakho has contended that on the 6th August, 1990, shortly after the Governor had taken his oath of office at about 10.00 p.m. the impugned order was passed. According to the learned Advocate‑General, the impugned order was passed by the Governor at about 11.30 p.m. Again it is difficult for us to give a definite finding in this regard as, according to the counter‑affidavit filed on behalf of the Provincial Government; sufficient material had been placed before the Governor to form an opinion as envisaged by Article 112(2)(b) of the Constitution. Whether the Governor could form his opinion within such a short span of time M upon the material which might have been made available to him is a matter upon M which we cannot give any definite finding. However, the contention of Mr. Abdul M Hafeez Lakho that there was no nexus between the grounds given in the M impugned order and the action taken by the Governor is ex facie incorrect as I have already pointed out that there is nexus between the ground No. 1 in the impugned order, which relates to the then prevailing law and order situation in Sindh and the preconditions required for exercise of the power by the Governor.

36. As I have already pointed out, there was a complete breakdown of law N and order. According to the material placed before us by the Provincial N Government, during the twenty months' tenure of the former Sindh Government, N there were 541 cases of dacoities committed in various parts of the Province, 269 cases of rape and 709 cases of kidnapping for ransom. Besides that, 530 persons were killed and 767 injured on account of ethnic violence and 88 persons lost their lives and 165 injured on account of terrorist acitivities. The figures provided by the Provincial Government are staggering. It may be pointed out that there is always a scope for improvement of law and order provided proper steps are taken in this regard. However, the law and order problem, a major part of which also resulted from ethnic strife, was allowed to deteriorate rather than improve and the province appeared to be on the brink of a civil war. Learned Advocate General has pointed out that a complete state of anarchy was prevailing in Sindh and the situation was chaotic. A complete breakdown of the machinery of the province was clearly visible, which, in my opinion fully justified the action taken by the Governor of Sindh. No doubt the Supreme Court in Haji Muhammad Saifullah's case held that a legislative assembly cannot be dissolved on the ground of deteriorating law and order, but the facts of the present case are to be considered entirely in a different perspective as there was a complete breakdown of the machinery of the province which justified in taking of action by the Governor.

37. Turning to the next. ground, upon which dissolution of the Provincial Assembly is based, it has been stated that the Provincial Assembly of Sindh had lost its mandate and effectiveness as a representative institution and had lost the confidence of its people. It has also been alleged that Government of the Province had undermined the civil services in violation of Article 240 and 242 of the Constitution. Reference in this regard has been made to the various ad‑hoc appointments made by the Provincial Government during its twenty months' short tenure. According to the counter‑affidavit filed on behalf of the Provincial Assembly, it has been stated that there was total anarchy, lawlessness and chaos in the Province of Sindh. Even the Ministers in the province were involved in serious crimes. There was a large scale corruption indulged into by the public functionaries. The Provincial Assembly out of about 600 days, to which the tenure of the Government could only extend, could meet only for 102 days. The party in power had deliberately accelerated the pace of political polarization by enlarging the gulf of ethnic frictions. About 216 acres of valuable urban land was allotted to various builders by way of political favour at rates far below the market rates in violation of rules, causing huge loss to the public exchequer. Most of these allegations are vague and general. In any case, as has been already pointed out above, none of these allegations have nexus to the prerequisites for taking action under Article 112(2)(b) of the Constitution. Be that as it may, but as I have already pointed out above, the two orders issued by the President of Pakistan and the Governor of Sindh can be sustained upon the first ground respectively stated in the two orders, these petitions are without any force. 38 In the result, would dismiss these petitions, but with no order as to costs. SPED ABDUL REHMAN, J.‑‑‑I had the benefit and privilege of going through the judgment proposed to be delivered by Mr. Justice Saeeduzzaman Siddiqui, Acting Chief Justice, wherein almost all the legal and factual points involved in these petitions have been encompassed. I am in agreement with the reasons given and conclusions arrived at therein. However, looking to the importance of these petitions I am tempted to express my views and additional reasons separately.

2. These petitions are aimed at nullifying an order dated 6‑8‑1990 passed by President Ghulam Ishaq Khan under clause (b) of sub‑Article (2) of Article 58 and of the Governor of Sindh under Article 112(2)(b) of the Constitution of Islamic Republic of Pakistan. The former order reads as under:‑ "DISSOLUTION ORDER The President having considered the situation in the country, the events that have taken place and the circumstances, and among others for the reasons mentioned below is of the opinion that 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:‑ (a) The utility and efficacy of the National Assembly as a representative institution elected by the people under the Constitution, and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous `horse‑trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contrvavention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people. (b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority; and with a view to safeguarding the structure. of the. Federation also contains special provisions of mandatory nature to ensure and protect the autonomy granted to the Provinces, by creating specific constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the Constitutional arrangements and usurped the authority of the Provinces and of such institutions, resulting in discord, confrontation and deadlock, adversely affecting the integrity, solidarity and well‑being of Pakistan, in that, inter alias‑‑ (i) The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161. (ii) The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory Constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands. (iii) Constitutional powers and functions of the Provinces have been deliberately frustrated by extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the People's Programme. (iv) The Senate, which is representative of the Federating Units under Article 59 and is an integral part c:f Parliament, has been ridiculed and its Constitutional role has been eroded. (c) Corruption and nepotism in the Federal Government, its functionaries and Authorities and Agencies, statutory and other corporations including Banks working under its supervision and control and the holders of representative offices has reached such proportions, that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of the Oath (s) prescribed therein, and the law, does no longer carry public faith and credibility and despite being subject to wide public condemnation, the Government has failed to take appropriate action in this behalf. (d) The Federal Government has failed in its duty under Article 148(3) of the Constitution to protect the Province of Sindh against internal disturbances and to ensure that the Government of that Province is carried on in accordance with the provisions of the Constitution, despite the heavy loss of life and property, the rule of terror in urban and rural areas, riots, arson, dacoities, kidnapping for ransom, politics of violence among citizens and widely condemned failure of the Provincial Government and its law enforcing agencies, and also, in this behalf, failed to act under appropriate provisions of the Constitution. (e) The Government of the Federation has violated the provisions of the Constitution and the law in that: (i) The Superior Judiciary has been publicly ridiculed and its integrity attacked and attempts made to impair its independence. (ii) Authority, resources and agencies of the Government of the Federation including statutory corporations, authorities, and Banks have been misused for political ends and purposes and for personal gains. (iii) The Civil Services of Pakistan have been undermined by disregarding the provisions of Articles 240 and 242 (iv) The powers under Article 45 have been exercised by the Government without prior approval of the President. Now therefore 1, Ghulam Ishaq Khan, President of the Islamic Republic of Pakistan in exercise of the powers conferred on me by clause (2) (b) of Article 58 of the Constitution of the Islamic Republic of Pakistan dissolve the National Assembly with immediate effect; and the Prime Minister and the Cabinet cease to hold office forthwith. (Sd.) GHULAM ISHAQ KAHN, President."

3. By the above order the National Assembly of Pakistan elected in 1988 on political party basis was dissolved in consequence of which Prime Minister Mrs. Benazeer Bhutto and her Cabinet ceased to hold office, general elections were ordered to be held within 90 days and the date of election was fixed as 24‑10 1990. Following the above order the Provincial Assembly of Sindh Province was also dissolved by Mr. Mahmood Haroon, Governor of Sindh with the consent of the President on somewhat similar grounds. Care‑taker Governments were appointed at the Federal as well as Provincial levels.

4. In all these petitions it is alleged that the above action of the President was illegal, ultra vires, unconstitutional and mala fide. The grounds that have been put forth may be summarised as under:‑‑ (i) Since the President was himself Executive Head of the Federal Government which allegedly failed to run the Government in accordance with the Constitution, the President also ceased to hold the office. (ii) The President had alternate remedy of referring the alleged situation to a Referendum or a joint meeting of both the Houses and to have obtained their verdict on the same or to have imposed Emergency either in the particular Province or in the entire country and could have avoided to resort to this extreme action. (iii) The President or Governor could have also referred the cases of corruption of the individual members of National or Provincial Assembly or Senate to the Election Commissioner and such Members could have been disqualified, rather than resorting to the dissolution of the entire National or Provincial Assembly. (iv) The non‑requisitioning of the meeting of Council of Common Interests and the National Finance Commission was also described as a non existent allegation because the former matter was sub judice before the Supreme Court, while in the latter case the Commission had been notified recently, and there was no eventuality to requisition its meeting. The President himself was the Chairman of the Finance Commission and was therefore. responsible for not requisitionine its meeting. (v) The allegation of ridiculing of the Judiciary and the Senate was not denied, but it was maintained that whereas the former case could be referred to the Chief Election Commissioner under sub‑Art.(2) of Article 53 of the Constitution, in the latter case privilege motions could be moved before the House. (vi) Federal Ministers, Choudhry Shujaat Hussain and Sahebzada Yakoob Ali Khan were also Ministers in the Care‑taker Cabinet of Late President Genl. Muhammad Ziaul Haq and had been accomplices in the subversion of the Constitution by inserting the word `President' instead of `Prime Minister'. (vii) The Order passed by President Ghulam Ishaq Khan was identical to an order under the same provision earlier passed by Late President Gen. Muhammad Ziaul Haq on somewhat similar grounds which grounds were held to be so vague, general or non‑existent that the order was held to be unsustainable in law. Hence the order of President Ghulam Ishaq Khan also suffers from the same disabilities. (viii) The intention of the Constitution‑makers was that such orders were to be passed when the machinery of the Government was broken down completely, its authority eroded and the Government could not be carried on in accordance with the provisions of the Constitution. No such conditions existed on or before 6‑8‑1990 and therefore, there was no occasion or justification to pass the above order. (ix) The law and order problems were perennial and did not justify the dissolution of the National Assembly. (x) The allegations of corruption and `horse‑trading' were applied equally to the Members of the rival parties of the P.P.P. and therefore, the ouster of P.P.P. from power and induction of its rival parties in the Care‑taker Government reflected against the bona fides of the President.

5. We have heard M/s. Khalid Malik Advocate, who was himself petitioner in C.P. No. D‑166/1990; U. Niamat Moulvi, Advocate, who also happens to be the father of the petitioner in Constitutional Petition No. D‑754/90; and S.M. Saeed, Advocate for petitioner in C.P. No. D‑795/1990. We have also heard M/s. Sirajul Haq Memon, Advocate, Hussain Shah Rashidi, Advocate and Fatehyab Ali, Advocate, who appeared on behalf of public‑at‑large and supported the petitioners' stand. Mr. Abdul Hafeez Lakho, Advocate appeared and argued on behalf of respondent Mrs. Benazir Bhutto, in C.P. No. D‑754/1990. Mr. Sharifuddin Pirzada argued on behalf of Federation of Pakistan, A.A.‑G. Mr. Aftab Akhund on behalf of Sindh Government, Mr. Nizam Ahmad Dy. Attorney General, Mrs. Shahida Jamil and Mr. Asar Hussain for public‑at‑large.

6. In support of their petitions the three petitioners filed their short formal affidavits. In reply to these affidavits, detailed Counter‑Affidavit was filed by SA.M. Wahidi, Solicitor, Federal Ministry of Law and Justice, stating that it should be treated as Counter‑Affidavit in all these petitions. In this Counter Affidavit he has denied the allegations made in the writ petitions and submitted in details the facts upon which the allegations contained in the Order of the President dated 6‑9‑1990 were based. He further elucidated the statements contained in this Counter‑Affidavit. The following documents were filed‑‑ (1) Letter from Muhammad Inamul Haq Dy. Director Govt. of Pakistan, Intelligence Bureau to Maj. (Retd.) Masood Sharif Khan, dated 11‑9 1990. (2) Maj. (Retd). Masood Sharif's letter to Dy. Director dated 12‑9‑1990. (3) Muhammad Ikramul Haq's letter to Maj. (Retd.) Masood Sharif, dated 11‑9‑1990. (4) Maj. (Retd.) Masood Sharif letter to Dy. Director, I.B. dated 12‑9‑1990. (5) Newspaper cutting of Daily Jang. (6) List of Telephones under observation. (7) Newspaper cutting dated 29‑5‑1990. (8) Newspaper cutting Daily Muslim, Islamabad dated 3‑9‑1989. (9) Newspaper cutting Frontier Post Peshawar dated 5‑10‑1989. (10) Newspaper cutting Daily Dawn Karachi dated 16‑10‑1989. (11) Newspaper cutting Daily Dawn Karachi dated 5‑11‑1989.. (12) Newspaper cutting Pakistan Times Isl. dated 9‑11‑1989. (13) Newspaper cutting Frontier Post Peshawar dated 10‑11‑1989. (14) Newspaper cutting Pakistan Times Lhr. dated 18‑1 2‑1989. (15) Newspaper cutting Frontier Post Peshawar dated 30‑12‑1989. (16) Newspaper cutting The Nation Lahore dated 19‑2‑1990. (17) Newspaper cutting Daily Dawn Kar. dated 3‑3‑1990. (18) Newspaper cutting The Muslim Isl. dated 8‑4‑1990. (19) Newspaper cutting The Pakistan Times Isl. dated 16‑4‑1990. (20) Newspaper cutting Frontier Post Peshawar dated 22‑6‑1990., , (21) Newspaper cutting Pakistan Times Isl. dated 19‑6‑1990 (22) Newspaper cutting Daily Dawn Kar. dated 27‑1‑1990. (23) Newspaper cutting Weekly Facts Int. dated 25‑2‑1990. (24) Newspaper cutting of Daily Dawn dated 18‑7‑1990. (25) Newspaper cutting The Muslim Isl. dated 26‑7‑1990. (26) Letter from Sajjadul Hasan to Fazalur Rehman Khan dated Nil. (27) Summary for the Prime Minister from Mr. Justice Nasir Aslam Zahid dated 24‑4‑1989. (28) Newspaper cutting Pakistan Times Lhr. dated 24‑2‑1990. (29) Newspaper cutting Daily Jang Lhr. dated 25‑2‑1990. (30) Newspaper cutting Daily Musawat Lhr. dated 31‑5‑1990. (31) Newspaper cutting Daily Dawn Kar. dated 4‑4‑1989. (32) Newspapercutting Pakistan Times Isl. dated 25‑2‑1990. (33) Letter from Nasirullah Khan Babar to the Secretary to the President, dated 7‑9‑1989. (34) Notes of Prime Minister Secretariat (35) Letter from Siraj S. Shamsuddin to Air Marshal (Retd MA. Daud Pota, dated 22‑5‑1989. (36) Telex from Siraj S. Shamsuddin to Air Marshal (Recd.) Daud Pota dated 29‑5‑1989. (37) Letter from Siraj S. Shamsuddin to Mr. Daud Pota, dated 4‑5‑1989. (38) Letter from Nawaz Tiwana, dated 25‑6‑1989. (39) Summary statement of crime, dated 31‑7‑1990. (40) Letter from Azim Ahmad Tariq to the President dated 4‑2‑1990. (41) Newspaper cutting, Nawa‑e‑Waqt dated 4‑2‑1990. (42) Letter from Ghulam Mustafa Jatoi to the President of Pakistan dated 16‑3‑1990. (43) MOM letter to Mr. Ghulam Ishaq Khan dated 13‑11‑1989, (44) Letter from Mr. Azim Tariq to the President dated 5‑9‑1989. (45) Notes from Yahya Bakhtiar dated 9‑6‑1990. (46) Address by Mr. Ghulam Ishaq Khan to the Nation dated 6‑8‑1990. (47) Telex Message from Muhammad Yousuf Khan to Chief Secretary Punjab, Sindh, Balochistan, N.‑W.F.P., Lahore, Karachi, Peshawar Quetta dated 15‑8‑1989. (48) Letter from Mr. I.K. Khalil to Mr. Fazalur Rehman Khan dated 14‑3‑1989

7. In C.P. No. D‑795/1990 Counter‑Affidavit was filed by‑Abdul Wajid Rana, Deputy Secretary on behalf of Government of Sindh' controverting the petitioner's affidavit and supporting the allegations made in the impugned Order of Dissolution, and copies of the following documents were filed to support the statement of facts made in this Counter‑Affidavit:‑ (1) Letter dated 18‑9‑1990 from Addl. Secretary, Irrigation and Power Department, Government of Sindh to the Dy. Secretary (Cabinet), Services and General Admn. Wild Life Deptt. Government of Sindh, Karachi containing instances of appointments on ad‑hoc basis, appointment of persons in violation of laid down recruitment procedures, instances of political pressure from Ministers/MPAs. to get personal gains and favours, instances of misapplication of public funds and allocation of funds. (2) Letter dated 19‑9‑1990 from D.I: G.P., Crimes Branch Sindh, Karachi to the Secretary to Govt. of Sindh, Home Department, Karachi regarding crimes in Karchi, i.e. persons killed and injured etc. (3) Letter dated 18‑9‑1990 from Secretary, Agriculture, Livestock, Fisheries and Food Deptt. Govt. of Sindh, Karachi to the Dy. Secretary (Cabinet), S&GAD, Govt. of Sindh, Karachi, regarding appointments of persons on ad‑hoc basis and in violation of laid down recruitment procedures. (4) Letter dated 18‑9‑1990 from Addl. Secretary (Revenue) Board of Revenue Sindh, Karachi to the Dy. Secretary (Cabinet), S&GAD Deptt. Government of Sindh, Karachi pertaining to allotment of plots. (5) Letter dated 18‑9‑1990 from Section Officer E(I), Communication and Works Deptt., Govt. of Sindh, Karachi to the Dy. Secretary (Cabinet), S&GAD and Wildlife Department, Government of Sindh, Karachi pertaining to instances of appointments on ad‑hoc basis and in violation of laid down recruitment procedures. (6) Letter dated 18‑9‑1990 from Section Officer (Admn.), Excise & Taxation Deptt., Govt. of Sindh, Karachi to the Dy. Secretary (Cabinet) S&GAD Department, Government of Sindh, Karachi pertaining to instances of appointments on ad‑hoc basis and in violation of laid down recruitment procedures. (7) Letter dated 18‑9‑1990 from Section Officer (V), Food Deptt., Govt. of Sindh, Karachi to the Dy. Secretary (Cabinet), S&GAD and Wildlife Department, Government of Sindh, Karachi pertaining to instances of appointments on ad‑hoc basis and in violation of laid down recruitment procedures. Letter dated 19‑9‑1990 from Health Department, Government of Sindh, Karachi to Dy. Secretary (Cabinet), S&GAD Department Government of Sindh, Karachi pertaining to instances of appointments on ad hoc basis and in violation of laid down recruitment procedures. (9) Letter dated 18-9-1990 from Secretary, Provincial Assembly of Sindh, Karachi to the Dy.Secretary (Cabinet), S&GAD and Wildlife Department, Karachi pertaining to Assembly Questions tendered by the Provincial Assembly of Sindh and details of Legislation passed. (10) Letter dated 18-9-1990 from Dy. Secretary, S&GAD and Wildlife Department, Government of Sindh, Karachi to Dy.Secretary (Cabinet), S&GAD, Government of Sindh, Karachi pertaining to appointment of Asstt. Commissioners on ad-hoc basis. (11) Letter dated 18-9-199() from Secretary, Zakat, Ushr, Religious, Minorities Affairs and Auqaf Department, Karachi to the Deputy Secretary (Cabinet), S&GAD and Wildlife Department, Government of Sindh, Karachi pertaining to the appointment of persons on ad-hoc basis and in violation of laid down recruitment procedures. (12) Letter dated 19-9-1990 from Asstt.Director (Admn.) Sindh Katchi Abadis Authority, Government of Sindh, Karachi to Section Officer (Admn.), Housing Town Planning, Karachi Abadis, and Environment Department, Government of Sindh, Karachi pertaining to appointments made under political pressure from Ministers & MPAs. (13) Letter dated 18-9-1990 from Section Officer, (Gent.), Labour and Cooperation Department, Government of Sindh, Karachi to Dy.Secretary (Cabinet), S&GAD and Wildlife Department, Government of Sindh, Karachi pertaining to ad-hoc appointments and appointments made in violation of laid down recruitment procedures.

8. Mrs. Benazir Bhutto, who was respondent in C.P. No. D-754/1990 filed a written statement denying the allegations made in the Counter-Affidavit and supported the case of the petitioners. In reply to the said written statement Mr.S.M.A. Wahidi, Solicitor, Federal Ministry of Law and Justice tiled Affidavit in detail refuting all those allegations and reasserted the allegations made in support of the impugned Order. Copies of the following documents were filed alongwith the Affidavit:-- (1) Minutes and Decisions of the Special Cabinet Meeting held on 7th June, 1990 at the Prime Minister's Secretariat, Islamabad. (2) English Translation of Finance Minister's Urdu Budget Speech 1990-91. (3) Summary Bye-Election results (National Assembly) and (Provincial Assemblies). (4) Cuttings from Newspaper Daily Jang, Lahore. (5) Letter dated 3-1-1990 from Chief Minister, Punjab to the President of Pakistan. (6) Cuttings from Daily Jang, Lahore. An additional Counter‑Affidavit was also filed by MrAbdul Wahid Rana, Deputy Secretary, Government of Sindh containing additional allegations and filed copies of the documents. Besides the above affidavits some more affidavits, statements, newspaper cuttings and copies of documents were filed from either side.

9. On perusal of the petitions, affidavits, counter‑affidavits, and documents filed in support thereof as well as against the same and after hearing the learned counsel for the parties the following broad points for determination appeared to have arisen:‑ (1) Whether the National Assembly indulged in such acts of commission and omission that its utility, efficacy and mandate was defeated and it had lost the confidence of the people? (2) Whether the authority of Provinces was usurped resulting in discord, confrontation and deadlock? (3) Whether corruption and nepotism in the Federal Government, its functionaries, Authorities and Agencies had reached such proportion that ordinary functioning of the Government, in accordance with the Constitution, was no longer possible? (4) Whether the Federal Government had failed in its duty under Article 148(3) of the Constitution to maintain law and order in the Province of Sindh? (5) Whether the Federal Government had publicly ridiculed the Superior Judiciary? (6) Whether the Civil Services of Pakistan were; undermined? (7) Whether the above allegations are vague, general or non‑existent and have no nexus with the preconditions for an order under Articles 58(2)(b) and 112(2)(b) of the Constitution and therefore it is not sustainable in law. I would now take these points one by one. POINT NOA:

10. The contention of the petitioners and their supporters was that these allegations which are contained in the order are false and incorrect. Not a single Member of the National Assembly belonging to the opposition party was bought by the ruling party. On the contrary Leader of the Opposition, accompanied by Zahid Sarfaraz, went to the M.N.As' Hostel with a brief‑case, full of money and sought to purchase the M.NAs. of the P.P.P., who were offered Rs.l crore each, if they left their party and joined the opposition party, but the offers were refused. Alam and Rai Shabbir was purchased by P.P.P. These M.NAs.had joined P.P.P. prior to the No‑Confidence Motion as they wanted to strengthen democratic institutions and the hands of the ‑Ex‑Prime Minister, who was the symbol of democracy. After these M.N.As joined the P.P.P, they were persecuted by the Provincial Government of I.J.I. (Government of Punjab), which was headed by Mr. Nawaz Sharif. It was denied that any undue favour was shown to the M.N.As., who supported the P.P.P. It was asserted that the National Assembly had been satisfactorily performing the legislative functions and that its performance during the period of 20 months was far better than that which is alleged. The allegation that the legislative measures could not go through the Senate was also denied.

11. On the other hand it was maintained by the respondents and their supporters that there was continuous change of loyalties and "horse‑trading" among the Members of National Assembly in violation of law which had become a common feature. Such loyalties were purchased by the ruling party, by inducement, offering of bribes, granting pecuniary benefits and bestowing office on the members elected on the tickets of opposition parties or as independent. Even members of ruling party were induced in the similar way to maintain their loyalties particularly during the days of No‑confidene Motion. It was alleged that the P.P.P. under the Ex‑Prime Minister transported at least 60 M.NAs. to Swat and other places in Northern areas which was not easily accessible and it was done with a view to confine, these Members at one place and prevent them from exercising their right of vote in favour of No‑Confidence Motion. These members were unlawfully transported and `C‑130' Aeroplanes belonging to g.A.F., were used, and Flights of P.I.A. were diverted to Mangora and had also been flown directly to Swat or Peshawar. Amongst the Members, who were transported to Swat, were Ghulam Muhammad Manika, Makhdoom Anwar Alam and Rai Shabbir. On 1‑12‑1989 when the No‑Confidence Motion was moved the abovenamed three M.NAs. abstained from voting and were put in Prime Minister's Chamber alongwith 19 other M.NAs. after showing them briefly in the House. It was further contended that Secret Fund known as V.I.Ps, S.S. Fund amounting to Rs.117.5000 millions was acquired on the orders of the Prime Minister's Staff during 1989‑90 and was spent on defeating the No‑Confidence Motion and was also spent similarly at the time of elections to the Azad Jammu & Kashmir Assembly etc. Undue favours were shown to other M.N.As. by allotting plots in Islamabad and giving other pecuniary benefits. These allegations find support from the evidence referred to above filed by the respondents and their supporters. POINT NO. 2:

12. From the side of petitioners which includes the Ex‑Prime Minister it was contended that the Ex‑Prime Minister, who herself hails from a small province, would have been the last person to violate the authority or autonomy of the Provinces given under the Constitution. The allegations to that effect were denied. The People's Programme, which was resisted by certain Provinces, was stated to be for the welfare and uplift of the general masses and the allegation that the same was an interference with the authority and the autonomy of the Provinces was denied. The delay in convening the meetings of the Council of Common Interests and National Finance Commission, was sought to be explained and it was contended that the same had no nexus with the preconditions for the impugned action, as the machinery of Federal Government had not come to a standstill, nor a break‑down had occurred therein which was preventing the orderly functioning of the Government. There were other remedies available to the aggrieved parties and in fact Governments of Punjab and Balochistan filed C.P. No. R‑4/1990 in the Supreme Court of Pakistan in relation to Council of Common Interests which was still pending. From the side of respondents it was contended that provisions of Articles 153, 160, 97 and 59 were subverted and thwarted resulting in the erosion of the Federal structure and Provincial autonomy and creating discord, confrontation and deadlock, which had adversely affected the integrity, solidarity and well‑being of Pakistan. The Council of Common Interests and the National Finance Commission were not called to meet. The Senate, which represents all the Provinces on equality basis, was ridiculed and its Constitutional role was eroded. The Ex‑Prime Minister showed contempt for the Senate by writing on a file in her own handwriting that the Senators were, "collaborators of treason". The pendency of Petition No. R‑4/1989 did not prevent the respondents from calling the meeting of the Council of Common Interests. These allegations find support from the evidence referred to above. The truth of these allegations was not and could not be denied. The above explanations given for them do not appear to be convincing. POINT N0.3:

13. On behalf of the petitioners and their supporters it was contended that no case of bribery, corruption and nepotism has been shown against any member of the Ex‑Government. The Supreme Court had cleared the former Federal Minister for State of Finance Mr. Ehsan‑ul‑Haq Paracha and the remarks made by the Lahore High Court against him were expunged. The former Minister for Petroleum and the former Law Minister had been cleared by the Care‑taker Federal Minister for Finance and Special Tribunal of Lahore. The charges levelled by C.O.P., in its convention in June, 1990, were ordered to bas investigated by the Ex‑Prime Minister through Chairman, Anti‑Corruption Committee. The report of the Chairman, Anti‑Corruption Committee ‑ ' be called for by the Court. One of the charges was that the husband of the former Prime Minister i.e. Mr. Asif Ali Zardari had sent a sum of Rs.82,00,00,000 through Siraj Durani the former Provincial Minister for Housing in Sindh in the Dubai Branch of Hong Kong and Shanghai Banks. The Chairman Anti Corruption Committee went to Dubai and found that no Branch of the said Banks existed in Dubai. False allegations are being levelled by the Care‑taker Government against the Ex‑Prime Minister, members of her family and Cabinet colleagues and these charges were unfounded, ridiculous and made only with a view to discredit the former Government and to interfere in the results of the next elections. It was also denied that International Guarantee Trust Company is owned by a cousin of Ex‑Prime Minister Muzaffar Mustafa. In fact he had nothing to do with that Company. Regarding the allegation of the C.O.P. that Hakim Ali and Asif Ali Zardaris had interest in the matter it was alleged that legal notices were sent by them to those who had made this claim. Mrs. Abida Hussain went to Court in this matter. The Order of Chief Justice of Lahore High Court before whom the former Attorney‑General appeared at the time of hearing of the writ petition of Mrs. Abida Hussain and the attorneys of IGTC may be called which will completely clear the Ex‑Prime Minister and his Government. It was also denied that she allotted a L.P.G. contract to Tariq Islam. In fact General Zia‑ul‑Haq has allotted a 60 M.T. L.P.G. contract to Brig. Awan. Tariq Islam was given only a part of that contract, although the entire contract could have been given to him. Explanation was also sought to be given for some other contracts and deals allegedly granted by the Ex‑Prime Minister to her relatives and Ministers. Simultaneously counter‑allegations were also made against the late President General Zia that he had allotted more than 5 plots to his family members, he did not pay income tax after 1977, and that he got a house from the discretionary fund for the mother‑in‑law of his daughter. He obtained residences in England in the name of his children. Ex‑Prime Minister Muhammad Khan Junejo granted to his son a Sugar Mill at concessional credit. He also sold a Hotel at Sukkur to Islamuddin Shaikh an Ex‑Minister at a nominal amount. All Intercontinental Hotels were sold by him to Mr. Hashwani for Rs.3,00,00,

000. The cost of Karachi Intercontinental Hotel alone was Rs.8 to 10 crores. It was alleged that Care‑taker Prime Minister Mr. Ghulam Mustafa Jatoi got the rule of Sindh Government changed in order to issue N.O.C., to set up a Sugar Mill. The present Care‑taker Chief Minister has attempted to get two plots from KDA, which Ex‑Prime Minister cancelled, because she felt that it could give to Government a bad name. All the Presidents and Prime Ministers after 1977, have been getting plots or Industrial Units sanctioned in their name or in the name of their family members. It was only the Ex‑Prime Minister Benazir Bhutto who did not get a plot in her name nor set up any factory in her own name.

14. From the side of the respondents it was reasserted that the Government headed by Mrs. Benazir Bhutto indulged in corruption, favouritism and nepotism. She was responsible for issuing a letter of indent to I.G.T.C. for allotment of 280 acres land at Islamabad at an extremely low rate. The said company had shown its address on a Night Club in London and her first cousin Muzaffar Mustafa was Director of that Club. The action was frustrated by the order of the status quo issued by the Lahore High Court on 5‑6‑1990, in W.P. No. 432/1990. The land was being sold in violation of C.D.A. Rules. Under her own orders marketing rights of L.P.G. were allotted to 5 favourites including her cousin Tariq Islam without compliance of prevailing rules and regulations of the Government for which a Reference under P.O. 17 of 1977 has been filed at Lahore.

15. The allegations made against the Ex‑Prime Minister Mrs. Benazir, her colleagues and family members find support from the material filed by the respondents alongwith their affidavits. The contention of the Ex‑Prime Minister that other Ex‑Prime Ministers and Heads of State had also indulged in some sort of corruption does not give a licence to her to indulge in corruption. A plea by a thief before a Court of taw that many other thieves had gone scot‑free and therefore, he should also be set free would not be allowed to be raised. If these allegations were true, the Ex‑Prime Minister Mrs. Benazeer Bhutto should have referred the same to the Tribunals established under P.O. Orders 16 and 17 of 1977. The fact that she had not done so implies that these allegations are merely an afterthought and have been made as a counter blast to save herself. POINT NO. 4:

16. On behalf of the petitioners it was contended that the law and order situation in Sindh in particular and in Pakistan in general is a perennial problem and was inherited by the Government of Ex‑Prime Minister from her predecessors. The P.P.P. Government endeavoured its best to control the same but could not succeed in view of the fact that there was overflow and abundance of unlicensed arms in the country due to Afghan War and narcotics pedlars. The ethnic leaders aggravated the situation by inciting people belonging to the various ethnic groups which resulted in continuous ethnic clashes during the entire period of 20 months of her Government. From the side of respondents it was pointed out that the Ex‑Prime Minister had granted pardons and remissions in sentences to offenders, who were convicted in various heinous crimes. Besides, she had ordered withdrawal of cases against the criminals on large scale basis which resulted in aggravating the already serious crime situation in the Province. It was pointed out that till the M.R.D. movement was started in Sindh by the P.P.P., the crime situation was absolutely normal and under control. It was alleged that during the M.R.D. movement the P.P.P. instigated its followers to take up arms and not only staged protests against Gen. Zia's Government but even patronized dacoities, kidnapping and hijacking with the result that the crime figures rose to an alarming point. When the P.P.P. Government of Ex‑Prime Minister Mrs. Benazir Bhutto came into power after the 1988 Elections, which followed the death of Late General Muhammad Zia‑ul‑Haq and a number of the senior Army Officers in the Bahawalpur C‑130 plane crash, she withdrew cases and granted remissions and pardons to the criminals on large scale and released every one who rightly or wrongly claimed that he was hauled up due to his activities under the M.R.D. movement. Material has been laid before the Court to show the number of persons, who were released on the orders of the Ex‑Prime Minister. Material has also been produced before the Court to show the number of persons killed in ethnic violence, number of dacoities and kidnapping for ransom, terrorist activities, arson and other cases of terrorism, which are, to say the least, most alarming. This resulted in imposition of curfew in Sindh for larger part of the year. The law and order situation in this part of the country was so grave that neither any one of the petitioners nor Mr. Abdul Hafeez Lakho, who appeared on behalf of Mrs. Benazir Bhutto could deny that it was not out of proportions Mr. Abdul Hafeez Lakho, however, referred to a statement of the President Ghulam Ishaq Khan dated 22‑5‑1990 which appeared in the Press on 23‑5‑1990 wherein he had declared that neither any Emergency was going to be declared nor any Martial Law was going to be imposed. The Government of Sindh was making best efforts to bring the situation under control. He was assured that Hyderabad City was not going to be surrounded. Nothing unusual was going to take place. He submitted that in spite of such a statement the President on 6‑8‑1990 passed the impugned order falsely giving out that the P.P.P. Government was responsible for the deterioration of law and order situation. On a question by the Court Mr. Abdul Hafeez Lakho had to admit that this statement was issued by the President before Pucca Killa incident of Hyderabad. From the side of respondents it was pointed out that this statement was given by the President as assurances were given to him by the P.P:P. Government that nothing undesirable would be done at Hyderabad, but the atrocities committed by the P.P.P. Government at Pucca Killa, Hyderabad disillusioned the President and convinced him that he was kept in utter darkness and the P.P.P. Government had deceived him. In this connection the letter of the President to the Prime Minister dated 28‑5‑1990 was produced. It will be useful to reproduce some extracts thereof which are as under:‑ ' "This is with a deep sense of anguish that I am reverting to the subject of the breakdown of law and order in Sindh on which I had addressed a letter to you on 16th May. I had drawn attention to the fast deteriorating law and order situation in the Province and mentioned that it seemed to be getting out of control of the Provincial Government. I could not, however, imagine that the situation would be so ineptly handled to achieve the officially stated object of "arresting four criminals" or "recovery of a few arms" that we should have had to witness the ghastly massacre of such a large number of innocent people as we did in Hyderabad and Karachi. The example of such a carnage perpetrated by the Administration in the sacred name of restoring the supremacy of law is unparalleled in the history of the country when cognizance is taken of the fact that the dead included as many as 27 women and children. It is a pity that the Administration has so far not uttered a single word of remorse or of sympathy at this wanton killing, nor publicly called to account those responsible for the gross inaptitude and callous handling of the .operation. At mid‑day, yesterday, when the shooting was in progress in Hyderabad, I had talked to you on the telephone and you had pleaded with me "to have faith" in what you described as "my (President's) own Administration". I told you that this was an uncoordinated, ill‑planned and ill‑advised action conducted in flagrant disregard of the law, rules and regulations. I had also conveyed to you that it appeared as if the Police was tasked to conquer the city. I had also mentioned that while we were bitterly critical of the Indian action in Srinagar we were enacting our own `Jagmohan' in Hyderabad. In reply, you assured me "that the situation was fully under control of the Police", and you reiterated that I should have confidence in the Administration which; in your words, was "President's own". You denied the allegation of cutting off of water, electricity and gas supply to the people and stated that the action taken was necessary to restore the supremacy of law. Unfortunately, you were not aware that right at that moment when we were on the telephone thousands of people were already on the streets, protesting against the Police brutalities; and the Army had to be called in minutes later to take over the situation which by then had completely gone ‑out of the Police control ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... With great personal pain and anguish I note that my past forebodings and fears have come true. Had my earlier advice and warnings been heeded and had the Army been entrusted with the responsibility, at early stages this carnage could have been avoided. Now that the Army has taken over it would be advisable to let them remain in control till such time they have accomplished the assigned mission of restoring not only the law and order but also the confidence of the people in the writ of law and the Government. However, positive results would only be possible if the provisions of Art. 245 of the Constitution enacted during the last PPP regime are availed of. The Goverment must also without futher delay appoint a Judicial Enquiry Commission, consisting of High Court Judges, to fix responsibility for the events of 26th and 27th May and the alleged excesses perpetrated by the police on the local population and the excessive use of force that was resorted to which resulted in a large number of people being killed and wounded. Taking into account the manner in which the law and order situation has continued to deteriorate and in the absence of self‑imposing traditions of acceptance of responsibility it is for serious consideration how ministerial accountability should be enforced." .

17. It was also pointed out by those appearing for the respondents that from interior of Sindh Mohajirs, Punjabis and Pathans were being uprooted from their houses and lands. The Punjabis were migrating to Punjab, Mohajirs to Hyderabad acrd Karachi. The P.P.P. and its Government was not only taking no steps to check the same, but was also provoking the Sindhis to uproot the non Sindhis from their homes and hearths. The city of Hyderabad was the highest victim of the atrocities of P.P.P. Government. The ethnic situation had been fanned since the days of M.R.D. Movement to such an extent that city of Hvderahad had turned into a battlefield for the past few years. The incident at Hyder Chowk, Gari‑Khata followed by that of the Sindh University Old Campus and H.M.C. Office culminating subsequently into an attack on the city and Latifabad on 30‑9‑1988 by persons sitting in 8 ‑10 cars ruthlessly firing and killing hundreds of persons and injuring thousands. It was contended that the M.Q.M. leaderships tried its level best to control the situation and to control the Muhajirs and pacify the P.P.P. It went to the extent of lending support to Mrs. Benazir Bhutto at the critical moment when she badly required cooperation to come into power, in the hope that she would reciprocate to the gesture of goodwill. Unfortunately Mrs. Benazir Bhutto under the pressure of extremists of P.P.P. misbehaved with M.Q.M. Practically no share was given to Muhajirs and other New Sindhis when the services were distributed to 26,000 favourites of P.P.P. without even caring for recruitment rules and the merits of the candidates. Not only that but admissions in technical Colleges and other cherished institutions were closed on them in Hyderabad and the interior of Sindh and attacks on their lives and properties had become so rampant that the M.Q.M. was left with no alternative but to withdraw from its pact with the P.P.P. 18. . It was also pointed out that the letter of the President dated 26‑5‑1990 did not produce any effect on Mrs. Benazir Bhutto. She expressed no remorse on what had happened in Hyderabad or Pucca Killa. On the contrary oiiie of her very senior Ministers issued a press statement saying that Pucca Killa and other localities in Hyderabad should be destroyed with bomb blasts. It will not be out of place to mention that the wish of the Minister was meticulously carried out and bombs were planted at a number of places in Mohajir localities of Hyderabad which blasted and caused scores of casualties. The P.P.P. Government was asked time and again by a number of quarters including that of the President and the Chief of Army Staff to`hand over the law and order situation in Sindh to the Army so that it could control the same. In spite of conceding that the depolyment of the army in the Province of Sindh was the most appropriate solution of the problem, the ex‑Prime Minister did not agree to do so on the pretext that she was not in favour of giving powers under Article 245 of the Constitution to the Army because that would take away the jurisdiction of High Court. It was contended that the pretext was a lame excuse and its hallowness is obvious from a letter written by her own Attorney‑General Mr. Yahya Bakhtiar, wherein he has made it clear that Article 245 of the Constitution is the only suitable provision for this situation.

19. In his letter referred to above the President had impressed upon the ex Prime Minister to appoint a Judge of High Court to hold a Judicial Inquiry into Pucca Qila incident. She gave it out to the Press that Mr. Justice Qazi Mamoon was appointed as a Tribunal to hold an inquiry into the incident but it was so managed that neither.the said notification reached the learned Judge not even in the High Court, nor it was published in the Sindh Government Gazette. Thus the inquiry into the incident was deliberately avoided so that the real facts.about this traoic incident should not come to light POINT N0.5: ..

20. It was contended, by the respondents that the Government of Federation and members of the Government publicly ridiculed the superior judiciary, attacked its integrity and made attempts to impair its independence. Supreme Court was ridiculed in a public seminar held under the patronage of the Government at Karachi. The said Seminar was shown on T.V. wherein the verdict of Supreme Court with regard to Mr. ZA. Bhutto was described as a judicial murder. A book written by an Ex‑Judge of Sri‑Lanka scandalizing the Supreme Court of Pakistan was patronized by the Government in power and publicity was given to its scandalous contents. The P.T.V. showed an interview of the said Sri Lanka Judge, who publicly condemned the Judges of Superior Courts of Pakistan. She made as many as 27 Judges of the Supreme Court and the High Courts to suspend their work for 9 days by baselessly declaring that their appointments were treated as irregular, illegal and ultra vires by the Supreme Court. When the matter was taken up by the Supreme Court and falsity of the stand of ex‑Prime Minister was exposed, she instead of bowing before the judgment, declared that it was manipulated by the President and that it was a perverse judgment.

21. Mr. Abdul Hafeez Lakho requested the Court to forget and forgive these things specially in view of the fact that the ex‑Prime Minister had changed her attitude towards the Judiciary and had donated Crores of Rupees for the improvement of the working of the Judiciary and had invited the Superior Courts Judges at a dinner and was in turn invited by the Superior Courts to Foundation Stone‑Laying Ceremonies.

22. Mr. Sharifuddin Pirzada pointed out that the Judges of Superior Courts had attended the dinner in a spirit of adjustment and tolerance and in turn had invited the Prime Minister to the Foundation‑Laying Ceremony as a gesture of understanding and cooperation, but even the same was not appreciated by her in that the plaque consisting of the names of Supreme Court Judges was removed under her orders. Besides that seats were not given to certain Judges of the Supreme Court in accordance with their protocol. It was pointed out to Mr. Abdul Hafeez Lahko by the Court that during the pendency of these petitions i.e. on 1‑10‑1990, Mrs. Benazir Bhutto was accompanied by thousands of her followers in the Court when she appeared before Mr. Justice Wajihuddin in the proceedings which she was facing in the Tribunal under Presidential Order No.17/1977, who were raising slogans not only in Court compound, but even in the Verandah of the Court as well as in the Court Room in presence of the learned Presiding Officer. They had not only jampacked the Court, but had also went on the dais of the Judge and had surrounded him. It was asked by the Court as to why Mrs. Benazir Bhutto did not control her followers and prevent them from showing such disrespect. Mr. Abdul Hafeez Lakho stated that such things do happen when political leaders come to the Court. He, however, conceded that this was not proper on the part of his client and promised that he would advise his client to see that such things do not happen in future. At this stage Mr. Sharifuddiii Pirzada apprised the Court of an incident of Quaid‑e‑Azam Muhammad Ali Jinnah when he went to a Magistrate's Court in Bombay to give evidence as a witness. When the Magistrate brought his apprehensions to the notice of Quaid‑e‑Azam that his followers may create confusion in the Court, Mr. Jinnah immediately issued directions to the Muslim Leaguers that nobody from amongst them should come to the Court on the date of hearing. The result was that only Quid‑e‑Azam and the Chief of the National Guard went to the Court on the date of hearing. Quaid‑e‑Azam gave evidence in a most dignified manner and no disrespect or disturbance was allowed to take place. Such behaviour was expected from every good citizen particularly a person who had adorned and occupied the office of the Prime Ministership of Pakistan in the recent past and was again a candidate for the same. The Court also took note of another incident which took place on 2‑10‑1990 in Lahore High Court, wherein the followers of the ex‑Prime Minister in a similar rather worse manner thronged the Court of Justice Rashid Aziz and broke the glass panes of the doors and windows and the furniture of the Court. Mrs. Benazir Bhutto and her companions made no efforts whatsoever to control their followers or to require them to leave the Court premises forthwith and to ensure that orderly proceedings are held. Mr. Abdul Hafeez Lakho tried' to argue that the blame was contributorily shared by plain clothed commandos present in Lahore High Court on that day. But it would appear that contention of the counsel for the petitioners and ex‑Prime Minister is without any substance. ' POINT N O.6:

23. On behalf of the petitioners and ex‑Prime Minister Mrs. Benazir Bhutto it was maintained that nothing was done by her to undermine the Civil Services of Pakistan. It was contended that the Government had the authority 'to make appointments on probation or ad‑hoc subject to service laws. The Government accommodated mostly those persons who were either removed due to victimisation or were considered hardship cases without party affiliation. On behalf of the respondents it has been asserted that Civil Services of Pakistan were undermined by the ek‑Prime Minister and her party. The provisions of Articles 240 and 241 of the Constitution of Pakistan were violated. Article 240 of the Constitution controls the appointments in the services. It provides that appointments to the services of Pakistan in relation to the affairs of the Federation are to be made by the Federal Public Service Commission, while in relation to the Provincial Services by the Provincial Public Service Commission. Besides, there were rules regulating the recruitment for other services including those of the Semi‑Government and Autonoumous Bodies. All these Constitutional requirements, laws and rules were by‑passed. and violated. As many as 26,000 persons were illegally appointed to the various services of Pakistan through the instrumentality of a so=called Placement Bureau. Deserving candidates having passed ,various Civil Services Examinations and having been selected on the basis of competitive examinations and/or interviews in various denied the right of appointment. In their place undeserving candidates and even those who had no requisite qualifications were appointed due to their being connected with the ruling P.P.P. Thus the entire structure of service was eroded. It was alleged that no heed whatsoever was paid to the honest and correct advises of seasoned Executive and Ministerial Officers. In many cases such Officers were laid off on the pretext of posting them as O.S.Ds. Cases were not uncommon where illegal and favourable notes were extracted from Officers either by inducement or by threat and in certain cases on the point of firearms. Material was placed by the respondents to support the above allegations which could neither be denied nor were controverted by the petitioners or the ex‑Prime Minister satisfactorily. POINT N0.7: