P L D 1988 Lahore 725 (PLP)

RUSTAM S. SIDHWA, J.

On 27th September, 1988, the Full Court by its unanimous judgment passed a short order holding that the grounds given for the dissolution of the National Assembly and the Provincial Assembly of the Punjab were not sustainable in law, but, in view of the proposed general elections to be held in future, it was not possible to permit restoration of the dissolved Assemblies. ??? 2.???? Since important legal issues arose in this case, I had decided to write a separate judgment and I hereby record the same herewith.

3. In order to understand the controversy, it is, necessary to understand the nature of our Constitution. The Pakistan Constitution, framed in 1973, as amended up to the date of the dissolution of the Assemblies, is basically Federal in character, partaking of the British Parliamentary system, with the executive having the primaryP1 responsibility for the formation of the Government policy and its implementation through the process of law, subject to its retain the confidence of the legislature. The executive has to act subject to the control of the legislature. Under Article 41, the President is the Head of the State and represents the unity of the Republic. Under Article 90, the executive authority of the Federation is vested in the President and is exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, without prejudice to the right of the Majlis‑e‑Shoora (Parliament) from conferring by law functions on authorities other than use President. Under Article 97, the executive authority of the federation extend to all matters with respect to which the Majlis‑e‑Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation, to areas outside Pakistan. Under Article 98, the Majlis‑e‑Shoorp (Parliament), on the recommendation of the Federal Government, can by law confer functions upon officers or authorities subordinate to the Federal Government. Under Article 91, there is a Cabinet of Ministers, with the Prime Minister as its head, to aid and advise the President in the exercise of his functions. Under Article 48(l), the President in the exercise of his functions, has? act in accordance with the advice of the Cabinet or the Prime Minister, without prejudice to his right under Article 48(2) to act in his discretion in respect, of any matter in respect of which he is empowered by the Constitution to do so. The President is thus a figurative or constitutional head of the executive, with the real power vesting is the Cabinet and the Prime Minister. Similar position obtains in the Provinces, with the Governor as the head of the executive. Under Article 130, there is a Cabinet of Ministers in each of the Provinces, with the Chief Minister as its head, to aid and advise the Governor in the exercise of his functions. The Cabinet is, therefore, the guardian knot which binds the legislature to the executive both in the Federation and in the Provinces. The Cabinet enjoying majority support in the legislature, controls both the legislative and executive functions. Where they are agreed on fundamentals and represent the collective will of the nation, they control policy in all its forms. All these provisions bring out clearly the Federal character of the Constitution, based on the Parliamentary system. In this connection, the observations of Mukherjee, C.J., in Ram Jawaya Kapur's case AIR 1955 SC 549 at 556 may be referred, since the Indian Constitution is also based on the British Parliamentary system. 4,????? Even where the National or a Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolves the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general elections to the said Assembly and also to appoint a Caretaker Cabinet. The word "and" between sub‑clauses (a) and (b) of clause (5) of Article 148 shows that the fixing of the date of the next general elections and the appointment of the Caretaker Cabinet are co‑extensive with the dissolution of the National Assembly. Under Article 224(2), when the National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the 'results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articles 48(5)(b) and 224(2) both read together, clearly show F4 that the general elections must be held within ninety days of the dissolution of the National Assembly and the date which is to be fixed must be such which brings about the election within this stated period. Under Article 1050), where the Governor dissolves a Provincial Assembly, he has to mandatorily appoint, in his discretion, but with the previous approval of the President, a Caretaker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Prime Minister or any other Minister or a Minister of the State Can be allowed to continue in his office during the period of dissolution, or instead any person can be appointed as Prime Minister or other Minister or as Minister of State during such period. Likewise, under Article 130(8), where a Provincial Assembly is dissolved, the Chief Minister or any other Minister can be 'allowed to continue In his office during the period of dissolution, or instead any person can be appointed as Chief Minister or other Minister during such period. Articles 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor, which can only be exercised with the aid and advice of the Cabinet, for without the Cabinet their actions would be unconstitutional. The appointment of the Prime Minister from 'amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a Cabinet can only be presided over by them and a Cabinet is not legally complete without them. The Cabinet cannot be presided over by the President. The constitutional oaths which the Ministers make before assuming office also contain a provision 'by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. All these provisions cumulatively show that no sooner, the Federal or the provincial Assembly is dissolved, that Caretaker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at its head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is engrained 'in the Parliamentary system. ? 5.?????? Before proceeding further, it may be stated that the 19731 Constitution, as originally framed, was strictly Federal and partaking of the British Parliamentary character. The framers of the Constitution were also well aware of the Parliamentary conventions prevalent at that time. Towards the end of Mr. ZuIfiqar Ali Bhutto's regime, some inroads into the Parliamentary system had been made. With the disturbances that followed the elections in 197V, Martial Law was proclaimed by (general Muhammad Zia‑ul‑Haq, the then Chief of Army Staff, who by Proclamation of emergency, Proclamation of Martial Law and Assumption of office of Chief Martial Law Administrator, took over the government under the Laws (Continuance in Force) Order, 1977, framed by him in his capacity as Chief Martial Law Administrator under the Proclamation of Martial Law, the Constitution of Pakistan. was suspended, the National and Provincial Assemblies were dissolved, the Ministers etc., ceased to hold their offices and the whole of the country Was placed under Martial Law. Under the Laws (Continuance in Force) Order, 1977, the country was directed to be governed, not with understanding the abeyance of the Constitution, as nearly as may be in accordance with the Constitution, but subject to the said Order and any Order made by the President or any Regulation made by the Chief Martial Law Administrator. The powers of the High Court to, make orders under Article 199 and all proceedings pending in such courts in? relation to the making of such orders were suspended Right from 1977 till 1985 the country was run under the law (Continuance in Force) Order, 1977, and the provisional Constitution order With the President from time to time making amendments to the Constitution under the First Order of 1977. Under various amendments made from time to time to the Laws "(Continuance in Force) Order, l977, the judiciary was subjected to restraints and restrictions and, at times denuded of its powers to act under Article

199. In practical application the Federal parliamentary, character of the Constitution got transmuted into a Unitary and Presidential character. Pursuant to the desire of the President to restore ,democracy, elections were held in early 1985 and the Revival of the ??? Constitution of 1973 Order, 1985 (also known as President's Order 14 of 1985) was passed on 2nd March, 1985, whereby inter alia certain Articles were added or amended to grant to the President certain special rights, such as, to be treated as figuratively elected and having a right to continue for the full five years term of office; the ??????????? right to receive certain communications and information from the Prime Minister and to secure consideration by the Cabinet of any views which he may have, which were not considered; the power to act in his discretion in respect to any matter in respect of which he was empowered by the Constitution to do so, with immunity from having his decision as regards whether a particular question was or was not within his discretion, challenged; the right to fix a date for the holding of the election within ninety days and to appoint a caretaker? Cabinet, if he dissolved the National Assembly; the right to Fend messages to either House of Parliament for consideration with respect to any Bill then pending or otherwise; the right to dissolve the National Assembly in his discretion, where, in his opinion, an appeal to the electorate was necessary; and the right to exercise the executive authority of the Federation independently as vesting in him. Accordingly, changes were inter alia effected in Articles 41, 46t 48, 56 and

58. On 23rd May, 1985, the joint sitting of the Parliament, ????????????? took place and Gen. Muhammad Zia‑ul‑Haq took oath of office as the President. Before the Proclamation of Withdrawal of Martial Law was issued in August, 1985, the Constitution was further amended by, the Majlis‑e‑Shoora (Parliament) to meet the needs both of the President and the Parliament. The Majlis‑e‑Shoora (Parliament), in order to secure restoration of complete democracy and withdrawal of Martial Law, acceded to certain amendments, including inter alia amendments Articles 58 and 112 and addition of Article 270‑A, the effect of ??? which was that the President was given power to dissolve the National Assembly, in hit, discretion, if (a) a vote of no‑confidence having been passed against a Prime Minister, no other member of the National Assembly commanded the confidence of the majority, or (b) a situation arose 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 Governor was given power to dissolve the Provincial Assembly, in his discretion, but subject to the previous approval of the President, if (a) a vote of no‑confidence having been passed against the Chief Minister, no other member of the Provincial Assembly commanded the confidence of the majority, or (b) a situation arose in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary, and the Parliament ratified, affirmed and adopted the Proclamation of Martial Law of the ?????? 5th day of July, 1977, and a host of Presidents Order‑‑‑, Ordinances, Regulations, etc., issued by General Muhammad Zia‑ul‑Haq, as stated in. Article 27U‑A, including all orders made, proceedings taken and acts done under the said instruments and also further granted personal immunity against legal action to all persons and authorities who had made orders, taken proceedings or had acted, whether in the exercise or purported exercise of the powers given by the said instruments, A reference to the Debates held in the National Assembly relating to the Constitution (Eighth Amendment) Bill shows that the power granted under sub‑clause (b.) of clause (2) of Article 58 was to specifically ????????? meet the type of necessity that had arisen in 1977 when the President had no power to dissolve the National Assembly, even though the mood of the whole country was against it, and to make the exercise of his power under this sub‑clause justiciable. The effect of the amendments to Articles , 58 and 112 gave the President and the Governors the power to dissolve the National and the Provincial Assemblies on a vote of no‑confidence having been passed against them, when there were no other persons commanding the, confidence of the majority, which power is within, the four corners of Parliamentary practice, but also to dissolve them, if e, situation arose in which the Government of the Federation or the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary, which power is again subject to customary Parliamentary practice, if not specifically limited to the particular emergency it was sought to meet. These few amendments and some earlier ones have to Sonja extent marred the face of the Parliamentary character of the Constitution. As Shakespeare states: "One dram of eale doth all the noble substance of a doubt to his own scandle". However, since in 19851 h was the genuine desire of the late President to gracefully transfer power to the people, I have no doubt that despite the arrangement proposed by him "to share power" with the Parliament, he intrinsically did not desire to break the basic Federal and parliamentary character of the Constitution, or disturb the Parliamentary conventions surrounding them, as he know that they were the bed‑rock on which the Constitution had earlier existed and the elected representatives were its strongest protagonist! and it served his interest to support it. Thus, whilst the late president, secured for himself some powers from the Parliament in respect of some matters in which he reserved his right and that of his Governors to act in their discretion, by words so expressed in the Constitution, the exercise of the said powers were to be within the pale of and subject to the usual established Parliamentary practices and not in derogation.? The of, and I would assume that in such cases where they propose to act in their discretion, that they will not conceivably be able to ignore the examination of the aid or advice, if any, tendered by the Cabinet, though they may be within the legal rights to exercise their functions without such assistance. 6.????? It is also clear from a perusal of the various Articles of the Constitution that irrespective of the fact whether the functions exercised by the President or a Governor are the functions of the S Federal or Provincial Government or are the functions of the President or the Governor, they have to be exercised with the aid and. advice of the Cabinet, acting through the Prime Minister or the Chief Minister, except those where they have to exercise their discretion, as empowered by the Constitution. 7.????? in the category of powers and functions vesting in the President by the express provisions of the Constitutional, some compel him to act mandatorily, such as where the word "shall" is used some oblige: him to act in his discretion, such as where the word "may" is used, and some compel him to act in his discretion in respect of matters which he is specifically empowered by the Constitution to do so? in the first category may be cited the powers of the President to address both the Houses at the commencement of the first session, under Article 56(3); to dissolve the National Assembly, under article . 58; to decide whether a Bill is with respect to any matter in Part I of the Federal Legislative List, under Article 70(5); to summon a joint sitting, under Article 71(3); etc. In the second category may be cited the powers or the President to summon either House or both the Houses of the Parliament in joint sitting, under Article 54(l); to address either House or both the Houses assembled together, under Article 560); to make rules as to the procedure with respect to the joint, sitting of the House under Article 72(l); to promulgate an Ordinance, when the National Assembly is not in session, under Article 59(l); etc. In the third category may be cited the powers of the President to fix a date for the holding of the general elections, under Article 48(5)(a); to appoint a Caretaker Cabinet, under Article 48(5)(b); to refer a matter of national importance to a referendum under Article 48(6); to dissolve the National Assembly, under Article 58(2); to appoint the Prime Minister, under Article 91(2); to appoint the Chief Election Commissioner, under Article 213; to appoint the Chairman, Joint Chiefs of Staff Committee, the Chiefs of the Army, Naval? Air Staff and to determine their salaries and allowances, under Article, 243(2)(c). A President would be deemed acting in his discretion in respect of a matter which he is specifically empowered by the Constitution to do so, not only when words "in his discretion" appear in any Article of the Constitution granting that power but from the nature of the Article giving that power it can also be inferred that he can totally disregard the advice of the Cabinet or the Prime Minister. See observations of A.N.Ray, C.J., in Shamsher Singh's case (A I R 1974 SC 2192 at paras, 55‑56). The exercise of these three categories of powers sometimes are made subject to the performance of certain duties or existence of certain conditions. A few in‑stances may be stated; such as, "after consultation", as in Articles 72(l), 101, 197, 200 and 232; on satisfaction of the existence of certain circumstances laid down, as in Articles 58(2), 89(l), 196, 223 and 234; on the formation of an opinion, as in Article 91(2); on the basis of advice, as in Articles 48(l), 92(l) and 93(l); subject to qualifications prescribed, as in Article 100; on receipt of a report, such as in Article 234; etc. In respect of the first two categories, that is to say, where the President is not obliged to act in his discretion in matters specifically empowered by the Constitution, the President is obliged to exercise his functions with the aid and advice of the Cabinet and Parliamentary etiquette demands that he accepts the said advice. See K.A. Mathialagan's case (A I R 1973 Mad. 198) and Shamsher Singh v. State of Punjab (A I R 1974 S C 2192). 1 would, however, assume that where, in a stray case, the President is compelled to slightly deviate, but not differ, that his decision or action proposed is the nearest most appropriate alternative provided by the established Parliamentary practice or usage, in respect of the matter in hand, which has been worked out with the tacit consent of the Cabinet or the Prime Minister. Parliamentary practice and convention do not permit the President to unreasonably or rashly differ, so as to create cleavage ‑or polarity, which may affect the continuous smooth functioning of the Government. In the third category of cases, that is to say, where the President is obliged to act in his discretion where he is so specifically empowered by the Constitution to do so, though he cannot conceivably ignore examination of the aid or advice, if ‑any tendered, he would be within his legal rights to exercise his functions without their assistance or interference. In the first and second categories, the President would act on his personal satisfaction in the constitutional sense, on the basis of material received and sent by the Cabinet, which advice would constitute the base and direction, which would guide him to take that decision. In the third category, he would act on his personal satisfaction, on the basis of his own judgment, after examining the material received from the Cabinet and that collected by him, without being unduly affected by the Cabinet's advice, where so received or obtained, apart from the examination of any facts or conditions which the Constitution itself may direct him to specifically examine or find as being in existence before he formed or framed his opinion. 8.????? Whether the functions exercised by the President or a Governor are the functions of the Federal or the Provincial Government or are the functions of the President or the Governor the President and the Governor, under Article 248(l), enjoy absolute personal immunity from legal action in respect of exercise of powers and performance of functions of their office and for any acts done or purporting to be done by them in the exercise of their powers or performance of their functions. Under clause (1) of Article 248, the President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister are not answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purporting to be done in the exercise of those powers and performance of those functions, without prejudice to the right of any person to bring appropriate proceedings against the Federation or a Province. The immunity given under clause (1) of Article 248 is available during and after the term of the office of the persons stated therein. Under clauses (2), (3) and (4) of Article 248, no civil or criminal proceedings can be instituted against the President or a Governor and no process for their arrest or imprisonment can issue to them from any Court. The immunity given under clauses (2), (3) and (4) are available to the President! and the Governor alone and only during their term of office. The immunity granted under Article 248 cannot cover acts which are mala fide, initiated in‑ bad faith, or prompted by bad motive. If the act purporting to be done in exercise of powers or performance of functions is so far‑fetched or unrelated to the issue at hand, the immunity cannot apply. The act done or purporting to be done must bear such close and intimate relation to the duty or the function, sol that the person concerned can lay a reasonable claim, but not al pretended claim that he did it in the exercise of powers or performance of functions given to him by the Constitution. The personal immunity from legal action does not place the acts of the President or the Governor, done or purporting to be done in pursuance of their power and duties under the Constitution, beyond the scrutiny of the Courts. See G.D. Karkare v. T.L. Shevde (A I R 1952 Nag. 330); approved in K. A. Mathialagan v. The Governor (A I R 1973 Mad. 198 at 219). As pointed out by K. Veeraswamy, C.J., in the latter ca8e, what the Constitution establishes is the supremacy of law and nor of man however highly placed they may be. In Gnanamani v. Governor o, Andhra (A I R 1954 Andh. Pra. 9), the Court held that though the immunity provided by clause (1) of Article 361 of the Indian Constitution gave full immunity, but only so long as the person was not guilty of dishonesty or bad faith. The Court further held that this did not preclude the acts of the Governor from being questioned, if they could be done without issuing a process on him and that Article 361 of the Indian Constitution itself recognized that? this immunity would not restrict any person to bring appropriate proceedings against the Government. In Mathialagan v. The Governor (A I R 1973 Mad. 198 at 219), the Court, whilst referring to the Supreme Court of India's ruling in Satia Palls case (A I R 1969 SC 903), stated that neither the Supreme Court in that case nor in the other cases of some of the High Courts which they had referred, it was held that the personal immunity afforded by Article 361(1) of the Indian Constitution to the Governor did not avail where his bona fides were questioned, nor had they held that where, the Governor's bona fides were questioned, he would personally be called to enter his defence.? However, the Court held that in its opinion the Governor's personal immunity extended to such a case as well. It also held that though the Governor could not be personally, as a party or otherwise, called upon to answer a charge of bad faith or lack of bona fides with reference to his official act, the validity of his act was open to attack on that ground in a Court and in fact the second proviso to Article 361(l) of the Indian Constitution was indicative of that fact. It further observed that inasmuch as mala fides or want of bona fides was a mental factor and where such a charge was made against the Governor in respect of his official act, it was inclined to think that there was at least an obligation or duty on the Governor to file an affidavit for the assistance of the Court in deciding the case. In this case the Governor had made such an affidavit denying the charge of mala fides, which the Court accepted.

9. I would now take up the question as regards the law dealing with the dissolution of the National Assembly. Articles 48 and 58 of the Constitution, which are relevant in this connection, may be reproduced here with advantage:‑ ??????????????????? Art.

48. President to act on advice, etc.‑‑ In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet or the Prime Minister: Provided that the President may require the Cabinet or as the case may be, the Prime Minister to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. (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 thy validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever. * * * * * * * * * * * * * * ? (4) The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be enquired into in, or by, any Court, tribunal or other authority. (5) Where the President dissolves the National Assembly, he shall in his discretion‑ ?(a) ?appoint a date, not later than ninety days from the date of the dissolution, for the holding of a general election to the Assembly; and ??????? (c)appoint a Caretaker Cabinet.? (6) If, at any time, the President, in his discretion, or on the advice of the Prime Minister, considers that it is desirable that any matter of national importance should be referred to a referendum, the President may cause the matter to be referred to a referendum in the form of a question that is capable of being answered either by "Yes" or "No". (7)??? An Act of Majlis‑e‑Shoora (Parliament) may lay down the procedure for the holding of a referendum and the compiling and consolidation of the result of a referendum. Art.58 Dissolution of National Assembly.‑(l) The President shall dissolve the ‑National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty‑eight hours ????????????????????????????????????????????????????? after the Prime Minister has so advised. Explanation. ‑‑Reference in this Article to "Prime Minister" shall not be construed to include reference to a Prime Minister against whom a notice of a resolution for a vote of no‑confidence has been given in the National Assembly but has not been voted upon or against whom such a resolution has been passed or who is continuing in office after his resignation or after the dissolution of the National Assembly. * * * * * * * * * * * * * * * (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 the 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 with the provisions of the Constitution and an appeal to the electorate is necessary. "

10. Under clause (1) of Article 48, the President, in the exercise. of his functions, has to mandatorily act in accordance with the advice of the Cabinet, or of the Prime Minister. By virtue of clause (2) of this Article, notwithstanding the fact that the President has to mandatorily act in accordance with the advice of the Cabinet or the Prime Minister, the President can also mandatorily act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, in which case the validity of anything done by the President in his discretion cannot be called in question on any grounds whatsoever. Thus, in respect of functions which the President can exercise under clause (1), immunity from questioning the validity of the action is not provided. Where he acts under clause (2), immunity from questioning the validity of the action is provided. Under Article 58(2)(b), notwithstanding anything contained in clause (2) of Article 48, the President can also dissolve the National Assembly in his discretion, where, in his opinion, a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the prvisions of the Constitution and an appeal to the electorate is necessary. The question that arises is what do the words notwithstanding anything contained in clause (2) of Article 48". mean. Do they take away the immunity provided in clause (2) of Article 48 or they only clarify by way of abundant caution that the power is within the general category provided in sub‑clause (2) of Article 48 and therefore. is subject to the immunity. It is true that a non obstante clause can create ‑an exception, where there is al. conflict between two provisions, or it may be clarifactory of the original position and introduced only by way of abundant caution Clause (2) of Article 48 does not delineate any specific power, but refers to a general category of powers designated as discretionary, 1 where the President acts in respect of any matter in respect of I which he is empowered by the Constitution to do so. In respect of such discretionary powers. Immunity from questioning there validity is provided . If the power given to the President under sub clause(b) of clause (2) of Article 58 was intended to be within the general category provided to prefix the non obstante clause with this sub‑clause. By adding the non obstante clause, it cannot be said that the object of the' legislature was to clarify the general category and. that the addition! was only by way of abundant caution, so as not to limit the scope oft the general category. This reasoning would apply if the two provisional relate to two specific powers. Since clause (21) of Article 48 only illustrates a general category and clause (2) of Article 58 refers to a specific power, the non obstante clause was obviously intended to create an exception to the immunity provided in clause (2) of Article

48. This is also obvious from the proceedings of the Debate ' held in "he National Assembly on 16th October, 1985, in respect of the Constitution (8th ‑Amendment) Bill. An extract of the speech of Mr. Muhammad Khan Junejo, the then Prime Minister. which is relevant in this respect, may be reproduced‑.? ??????????????????????????????????????????????????????? ??? ?The inference, therefore, is clear that the power under clause (2) of Article 58 was not intended to fall within the category of clause (2) of Article 48, but rather was to be treated as exclusive of that power. In short, what was sought by the then Prime Minister of the National Assembly was the freedom from immunity, as provided by clause (2) of Article

48. Thus shorn of all complexities, clause (2) of Article 58 means that notwithstanding the general power of the President, as contained in clause (2) of Article 48, to act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so, which act is immune from justiciability, he can also dissolve the National Assembly in his discretion under this clause, for reasons given in sub‑clauses (a) and (b) thereof, and since no immunity as in clause (2) of Article 48 is provided, in this case no immunity shall apply. Comparing both the provisions, it is obvious that whilst immunity from justiciability is intended to attach to all actions of the President, which he may take in his discretion, if so empowered by the Constitution, the particular action which he may take in his discretion, as stated in clause (2) of Article 58 of the Constitution, is not immune from justiciability. This is the effect ,of the non obstante clause contained in clause (2) of Article

58. It appears that when the Majlis‑e‑Shoora (Parliament). granted the late President power under the Constitution to dissolve the National Assembly in his discretion, it made sure that the President's action would be justiciable. This is the effect of the opening words "notwithstanding anything contained in clause (2) of Article 481, pre‑fixed to clause (2). But for these words, immunity from justiciability would have attached to the President's action under clause (2) of Article 58.

11. The next question whether the immunity from challenging the, validity of the action provided under clause (2) of Article 48 is immunity inter se the President, on the one hand, and the Cabinet, or the Prime Minister, on the other, or immunity from the action Y being called in question in a Court. Where immunity from legal action is provided, it is explicitly mentioned that the validity of the action will not be called in question in any Court. Thus, immunity from judicial scrutiny by Courts is thus, not available in respect of actions under clause (2) of Article 48.

12. The next question that arises is whether an order under sub‑clause (b) of clause (2) of Article 58 of the Constitution is justiciable. As will be shown later, certain facts and circumstances have to be present before an opinion can be framed by the President. 'Since the satisfaction of the President under this sub‑clause is! subjective and cannot be tested by reference to any objective tests ' I it may lead to the inference that the opinion perhaps cannot be challenged, but there is no dispute to the general rule that facts and circumstances on which the opinion has to be formed can be subjected to judicial scrutiny. [See R.C. Cooper v. Union of India A' I R 1970 SC 564 at 644 para. 2301, Barium Chemloalls case A I R 1967 SC 295 and State of Rajhistan's case A I R 1977 SC 1361 at 1389, para. 124, 1412‑13 at para. 143]. Just because the question is, of a political nature, the Court cannot hold its hands off, but it Can? go into the question whether the person or authority under the Constitution that has the power to form the opinion has acted within the limits of its power or exceeded it. [See State of Rajhistan A I R 1977 SC 1361 at 1413, para. 1.43 and A.K. Roy v. Union of India AIR 1982 S C 710 at 724, para. 26]. The rule that political questions, as far as possible, should not be decided by (courts, has primarily sprung up from decisions of Courts taken in respect of cases under Article 234 of the Constitution, which is equivalent to Article 356 of the Indian Constitution, where the action of the President is subject to the ratification of Parliament, and where it is generally felt proper to leave the decision of such questions for the decision of Parliament. or where election has been ordered, to the will of the people. Even otherwise, this rule is losing ground, due to the reason that constitutional mechanism in a democratic polity does not contemplate existence of any function which qua the citizens may be designated as political, so that orders made in exercise thereof cannot be tested for their validity before the Courts. [See observations of Shah, J. in Madhav Rao Scindia v. Union of India A I R 1971 SC 530 at 564, 618, 619 and 620 and of Y.V. Chandrachud, C.J., in A.K. Roy v. Union of India A I R 1982 S C. 710 at 724, para. 26]. Where a political question is tied up with the question of constitutional rights? or obligations, the Court must look into it. If it is not so tied up, the Court may abstain from enquiring into it. As Bhagwati, J. said in the case of State of Rajhistan '(A I R 1977 SC 1361 at page 1412‑13 para, 143) "Every constitutional question concerns the allocation and exercise of Governmental powers and no constitutional question can. therefore, fail to be political. A constitution is a matter of present politics, a structure of power". Maintaining a balance between the nature of the political question, and the constitutional eight or obligation alleged to have been infringed, the Courts must, therefore', be cautious when political issues come up, to avoid sharp conflict between constitutional interference. and political displeasure. Coming to the facts of the present case, it is necessary to see whether the facts and circumstances on which the opinion was formed, was based or, no grounds, or was based on wholly extraneous or irrelevant grounds, for if it be so, the Court would have the jurisdiction to examine it, because constitutionally there would be no proper opinion of the President ‑ regard to the matter in which he was required to be satisfied. The opinion of the President wider sub‑clause (b) of) clause (2) of Article 58 is a condition precedent in 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. [See State of Rajhistan v. Union of India A I R 1977 SC 1360 at '1412‑15, paras. 143‑144 at 1437, para. 203 and at 1439 para. 206).

13. The question whether the Federal Government and the Government of the Punjab have any reasons, apart from those stated in the dissolution orders, deserves to be stated. With both the written statements, certain documents have been filed, which will be referred to at the proper stage. During the hearing, a question was put to but,, the learned Attorney‑General of Pakistan and the Advocate? General of Punjab whether they had any other documents or material disclosing other grounds which were taken into consideration by the President of Pakistan and the Governor of the Punjab, respectively when dissolving the National and Provincial Assemblies and, if so, whether they desired to file the same. The only answer both the learned law officers made was that whatever documents they had considered relevant, they had produced, but they were not prepared to make any unequivocal statement whether there was any other material and, if so, whether they would be producing it or claiming any privilege. I have no doubt that both, the Governments are not compelled to disclose all the reasons they way live when dissolving? the Assemblies under Articles 58(2)(b) and 112(2)(b). If they do not choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer. It is surprising that both the Governments did not file any affidavit of responsible officers connected with the President's and the Governor's Secretariates in support of the grounds on which the action was taken and particularly one from a responsible officer of the President's Secretariat to show that the late President had, according to records available, given his previous approval to the Governor of the Punjab for dissolving the Provincial Assembly and whether the President had secured the consent of the Cabinet before giving such previous approval and an affidavit of a responsible officer of the Governor's Secretariat to show, according to available records, whether the previous approval of the President was received before the Provincial Assembly was dissolved and, if so, whether it was oral or in writing. I mention this, for where a charge of mala fides, or want of bona fides, or non‑compliance of the Constitution, or of action taken on extraneous grounds is made against the President and the Governor in respect of their personal functions, some obligation is at least cast on them to file, through responsible officers connected with their Secretariates, affidavits to assist and help the Court in deciding the case. Certain internal matters which are not obvious and which can be disclosed would then find reference in the affidavits and assist the Court immensely in arriving at a true determination. I would not like to go down on' the record as casting any strong burden on the Government to file such affidavits, but where some prima facie case is made out in the pleadings of the petitioners showing that extraneous reasons were taken into consideration when the President and the Governor took their decision‑ and the prior approval of the President was not obtained by the Governor, the burden does shift on the Government to furnish affidavits and file relevant material to meet the case of the petitioners. In this connection I would refer to the case of A.K. Roy v. Union of India (A I R 1982 SC 710 at page 724, para. 29), where the Governor did file such an affidavit, which establishes the salutary advantage of such a practice. Even otherwise, it is high time that old rigid practices are disbanded and a pragmatic approach towards procedural efficiency is adopted for a more effective determination of disputed questions.

14. I now proceed to discuss the powers of the President to dissolve the National Assembly, as provided in sub‑clause (b) of clause (2) of Article

58. This sub‑clause clearly shows that before the President can exercise his discretion to dissolve the National Assembly, he must first form an opinion that 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. It is obvious that before any such opinion can be formed, circumstances should be present which show that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and that it is also necessary and desirable that the country should go to the polls, because an appeal to the electorate is necessary. The legal requirements, therefore, appear to be: first, that certain facts and circumstances raising a political issue concerning the future existence of the life of the National Assembly have arisen; second, that such tacts and circumstances are so apparent, visibly verifiable or manifest 'that on the principle of res ipso loquitur they can be accepted, or that they are known to the President through verifiable sources or that some summary or report or written information prepared for; or at the instance of the President has been submitted to or seen by him, which disclose the same; third, that in the opinion of the, President honestly formed as to the existence of such facts, they, in i his fair judgment, disclose that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and that it is also necessary that an appeal to the electorate is necessary and the whole of the nation must be plunged into election fever and the country must be burdened with the huge expense of going to the polls; and fourth and last, that in the discretion of the President, it is necessary to, dissolve the National Assembly.

15. The main question that arises in this case is when can it be said that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution. The expression "Government of the Federation" is not limited to any one particular function, such as the executive, the legislative, or the judicial, but includes the whole functioning of the Federal Government in all its ramifications. It cannot be forgotten that sub‑clauses (a) and (b) of clause (2) are juxtaposed together and, therefore, sub‑clause (b) has to be read in harmony with the intention behind sub‑clause (a), in short, whether a political issue has arisen demanding the ascertainment of the will of the people as regards the continuance of the National Assembly. 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. A few further instances can also be given, such as, where the Government has been defeated in the Assembly and the Prime Minister does not want to step down, or political groupings are such that even attempts by the President to form a coalition Government and get a working majority have not been successful and no alternative Government can be formed. It is difficult to conceive of a case where a major party having a stable Ministry in the saddle can be stated to have lost its functional ability, but in a rare case where the national mood has changed, it may be so figuratively treated, such as the one which took place in India where a quick shift in the national mood placed the Janta Party in power at the Centre and the Provincial Assemblies in nine States of India, which had stable Governments controlled by the Indian Congress Party, were dissolve d to give the people in the said States a further right to express their current feelings due to the recent shift in their mood. [See State of Rajistan and others v. The Union of India A I R 1977 S C 13611. 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. Nothing can be read into clause (b) to show that the failure on the part of the party in power in the National Assembly to effectively carry out the direction or recommendations of the President, or any particular policy or program promised by them in their manifesto, or to satisfactorily enforce some of the provisions of the Objectives Resolution or Principles of Policy, can be taken into consideration for the dissolution of the National Assembly, for these are abstract matter on which no honest judgment can be formed and otherwise too they would be dependent on facts which are relatively variable and which have no nexus with the functional working of the Assembly. 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. The primary condition, therefore, is whether the circumstances are such that the functional working of the National Assembly is impaired; for if the party in power commands the widest support in the National Assembly, it has the right to run the Government, and where it has no such support, or has lost it, it must leave. Whatever supportive conditions are there, by themselves they have no value', unless they serve the primary condition.

16. In order to appreciate the rival contentions, it is necessary to refer to the pleadings of the parties in the said connection. Haji Muhammad Saif Ullah's case (W.P.No.4773 of 1988) is the main writ petition, which can be treated as the basic case, because other writ petitions almost contain the same averments, with some additions. In this case, the petitioner has made the following submissions: First, that no circumstances 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; second, that the President exercised his discretion in an arbitrary, unjust, capricious and mala fide manner, thereby interfering with the Parliamentary democratic system, which is ensured by the Constitution; third, that the action of the President was prompted by his subjective satisfaction and not for furthering the cause of parliamentary democracy or the ultimate welfare of the common man; fourth that under Article 58(2)(b), the National Assembly could only have been dissolved if the machinery of the Federation had come to a total standstill and it had become absolutely impossible for the Federal Government to function; fifth, that the National Assembly and the Government of the Federation were working in accordance with the provisions of the Constitution and no situation had arisen to dissolve the National Assembly and that the President had summoned the National Assembly to meet on 8th June, 1988, through a Presidential Order issued in that respect, sixth, that since no circumstance had arisen by which the appeal to the electorate was necessary, the National Assembly could not be dissolved; seventh, that the actions of the President after the dissolution of the National Assembly were all mala fide, in that he did not immediately fix a date for the holding of the elections within ninety days after the dissolution, as required by Article 224(2) of the Constitution, or appoint a Caretaker Cabinet; eighth, that the President for a long period exercised the executive authority of the Federation without a Cabinet, presided over by a Prime Minister, in violation of Article 48(l) of the Constitution; ninth, that he appointed a Caretaker Cabinet on 9th June, 1988, without a Prime Minister to head it, with the result that Ministers subscribed to oaths in which the words "Prime Minister" were deleted, in violation of the Constitution; tenth, that the President appointed an Attorney‑General of Pakistan on 30th May, 1988, without the advice of a Cabinet presided over by a Prime Minister, which was illegal; eleventh, that the President dissolved the four Provincial Assemblies without the aid and advice of his Cabinet, presided over by a Prime Minister, as required by Article 48(l) of the Constitution. The petitioner has filed a number of documents in support of his petition, including inter alia the official reports of the Debates held in the National Assembly and clippings from news items that appeared in various newspapers. In the petition filed by Mian Abbas Ahmad (W.P.4540 of 1988), it is further asserted that when the National Assembly was about to take penal action against persons responsible, including some Army Generals, in respect of the Oujhary Camp disaster, on the basis of the reports of General Imran Ali and others, the President immediately dissolved the Assembly to protect himself and his henchmen and, after the dissolution, ordered that the said reports should not be published. Other writ petitions more or less repeat basically the same grounds. The writ petitions claiming relief of quo warranto are also based more or less on the same basic submissions.

17. The written statement filed on behalf of the Federation of Pakistan in Haji Muhammad Saif Ullah's case (W.P. No.4773 of 1988) raises certain preliminary objections, apart from traversing the submissions made by the petitioner on the merits. In the preliminary objections it is submitted: First, that the President's dissolution order under Article 58(2)(b) was passed under lawful authority and the same having been acted upon, the present petition is misconceived, mala fide and not maintainable; second, that the dissolution order having been passed in exercise of discretionary power, cannot be called in question on any ground whatever, in view of Article 48(2) of the Constitution; third, that the dissolution order was passed by the President in his discretion, as in his opinion a 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, of which he was the sole judge and since the elections have been fixed for 16th November, 1988, the Court should restrain its hand from impeding the will of the people; fourth, that the petition suffers from laches; fifth, that the petitioner having accepted and acquiesced in the order dated 29th May, 1988, is barred and estopped from questioning the same; sixth, that under Article 248, the President is not answerable to any Court for the exercise of his powers and performance of the functions of his office or for his acts done or purporting to be done in the exercise of powers and performance of such functions and, therefore, the petition is not maintainable. On the merits of the case the written statement denies all the submissions made by the petitioner, on the basis: first, that the action of the President was taken in his discretion, as provided in Article 58(2)( the validity of which is fully protect by Article 48(2) and cannot be called in question on any ground whatever, second, that the petition suffers from laches; third, that the action 'of the President was even accepted by Mr.' Muhammad Khan Junejo, the former Prime Minister, according to his Press statement, as reported in the Pakistan Times newspaper, dated l8th July. 1988; and fourth, that the Court should first determine the question of jurisdiction, before embarking on a wider inquiry. With the writ petition a number of annexures have been filed.

18. The written statement filed on behalf of Mr. Hamid Nasir Chattha, Speaker, National Assembly, respondent No.22, in Haji Saif Ullah's case (W.P.No.4773 of 1998), apart from admitting all the submissions made by the petitioner in his petition, submits that the power under Article 58(2)(b) was exercised by the President in the absence of the preconditions required for the exercise of the said power and was motivated by a desire to wield absolute power and was calculated to strengthen the President's personal hold on the entire affairs of the Government, in gross disregard of the provisions and requirements of the Constitution. It is further submitted that the failure of the President to appoint a caretaker Prime Minister and his other illegal acts clearly demonstrate his gross and reckless disregard and disrespect for the mandatory provisions of the Constitution. With the written statement a number of annexures have been filed.

19. In respect of the dissolution of the Punjab Assembly, Sardarzada Zaffar Abbas Syed's case (W.P.No.4825 of 1988) is the main case, which can be treated as the basic case because the other petition is almost on similar grounds. In this case, the three petitioners, apart from making somewhat similar allegations as contained in the above petition, inter alia submit: First, that the exercise of the discretionary power by the Governor of the Punjab under Article 112(2)(b) of the Constitution was grossly unreasonable, perverse and colour able and in fact had been misused, as the Governor himself never initiated the move for the dissolution of the Punjab Assembly by applying his own independent mind, nor the prior approval of the President was obtained, second, that at the time when the power was exercised, no situation had arisen in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution, or an appeal to the electorate was necessary; third, that the very appointment of Mian Nawaz Sharif as the Care‑taker Chief Minister and reappointment of most of the members of the former Cabinet in the Caretaker Cabinet, negate any accusation that the former Provincial Government could not run the affairs of the Government; and fourth, that the impugned order ex facie does not show that the prior approval of the President for dissolving the Provincial Assembly had been obtained. ???

20. The written statement filed on behalf of the Province of the Punjab and its Chief Secretary in Sardarzada Zafar Abbas's case (W.P.4825 of 1988) raises the same preliminary objections, as taken in the earlier writ petition, apart from traversing the submissions made by the petitioners on merits. On the merits it is inter alia submitted that the Provincial Assembly was not dissolved in obedience to the orders of the President, but rather the Governor of the Punjab was satisfied that the Government of the Punjab could not be run in accordance with the Constitution and an appeal to the electorate was necessary and he, therefore, exercised his discretion under Article' 112(2)(b), with the prior approval of the President. ,the order of the? Governor of the Punjab dated 30th May, 1988, dissolving the Provincial Assembly has been annexed with the petition to show that he had received the previous approval of the President of Pakistan.

21. In the written statement filed on behalf of Mian Manzoor Ahmed Wattoo, Speaker, Punjab Assembly, respondent No.4, in Sardarzada Zafar Abbas's case (W.P.No.4825 of 1988), apart from admitting all the submissions made by the petitioners in their petitions he has made more or less the same submissions as made by the Speaker Of the National Assembly in the written statement' filed by him in Haji Saif Ullah's case. In addition, it is further submitted that the functioning and performance of the Punjab Assembly always remain exemplary, that the last session of the Assembly concluded on 14th February, 1988, that during the Golden Jubilee Celebrations held on 2nd February, 1988, wherein the President of Pakistan, the Prime Minister of Pakistan, the Chairman of the Senate and other dignatories were present, the Governor of the Punjab appreciated and lauded ‑the democratic structure of the Punjab Assembly and found no fault in its functioning. It is further submitted that the Governor of the Punjab did not first form any opinion to dissolve the Assembly and then seek the President's approval, but rather he passed the order mechanically on the directions of the President. With the written statement, a number of annexures have been filed.

22. The most important question that arises what were the, circumstances prevalent on or before 29th May, 1988, when the National Assembly was dissolved. Was there a political issue of a nature facing the country threatening the life of the National Assembly. It cannot be forgotten that the members of the National Assembly represent four provinces, the Federally Administered Tribal Areas and the Federal Capital, on the basis of population, and some seats reserved for the minority communities and women. The Pakistan Muslim League Party, after it decided to run its affairs on a party‑based system, had the' support of an overwhelming majority of the members of the House. The party was not beset with internal dissensions or friction. Council. of Ministers that had been installed had not suffered any major change. The popular character of the party had not been disturbed nor compromised. On the contrary, it had won the bye‑election in Mian Channu (Punjab) held in 1987, which showed the mood of the electorate in the Punjab, at least in having faith in the Pakistan Muslim League. The late President himself in his addresses to the National Assembly on 19th April, 1985 and 7th April, 1988, waxed eloquent about the, purpose of the National Assembly and the fact that it was running the Government in accordance with the Constitution. This is apparent from Annexures I and 11 filed by the Speaker of the National Assembly in writ petition (W.P.4774 of 1988). The late President, in exercise of his powers under Article 54 of the Constitution, had also on 25thl May, 1988, summoned a session of the national Assembly for 8th Jun 1988. [See Annexure III to the written statement of the Speaker of the National Assembly filed in writ petition W.P.4773 of 1988]. The President would not have summoned the session, if the party, was in the midst of any turmoil. Where a political crisis arises, which touches the future existence of the life of the National Assembly,? one would expect many things to have happened, such as the Ministry in power has lost its majority amongst the members, or internal dissension, and division have raised their ugly head; or prolific campaigning it as begun among members for support to form a majority party, etc. Such matters do not remain hidden. They are so apparent that they find full expression in the national Press and in political circles in general and manifest themselves in a thousand ways. Nothing of the sort was present, either manifest or unmanifest. The political scene was stable and placid like a frozen lake, with not a ripple of I disturbance on its surface. All these are facts which the Court can take judicial notice and I have no hesitation in doing so. I would, therefore, hold that the primary basis on which the National Assembly could have been dissolved, was not there. ???????????

23. On behalf of the Federal Government it is submitted that The National Assembly was dissolved for the grounds given in the President's Dissolution Order itself, which states the reasons as follows: ‑ (i)???? That the objectives and purposes for which the national Assembly was elected had not been fulfilled; ??????? (ii)??????????? That the law and order situation in the country had broken down to an alarming extent resulting in tragic loss of valuable lives as well as loss of property; (iii)?? That the life, property, honor and security of the citizens of Pakistan had been rendered totally unsafe and integrity and ideology of Pakistan had been seriously endangered‑ and (iv)?? That public morality had deteriorated to an unprecedented ;level; as a result whereof, in the opinion of the President, a 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 Federal Government with its written statement has filed a number of annexures to show, first, that Mr. Muhammad Khan Junejo, the former Prime Minister, had decided to accept the challenge of the then President to go to the polls, rather than challenge his decision in Court; second, that the Islamisation process had proceeded somewhat slowly; third, that the law and order situation had deteriorated in Sind; and fourth, that the President had referred to these dismal features in his Press conference and in his address to the joint session of the Parliament on 7th April, 1988. No summary or report prepared for or at the instance of the late President before he took the decision, or any affidavit of any person from the President's Secretariat, has been filed showing any further grounds on the basis of which the President had taken the decision. I would, therefore, hold that these are the only grounds on which the National Assembly was dissolved and I will proceed accordingly.

24. As regards grounds (i) to (iv) stated in the President's Dissolution Order, it is asserted on behalf of the Federation, on the rule laid down by the Supreme Court of India in State of Rajhistan and others v. Union of India (AIR 1977 S.C.1361) that the "basic structure" theory applies to the instant case and Principles of Policy set out in Chapter 11 of the Constitution and the principles and provisions set out in the Objectives Resolution, which now have become a part of our Constitution under Article 2‑A, could be used by the Federal Government for enforcing the same, in action taken under Article 58(2)(b) of the Constitution. In short, it is suggested that apart from the fairly broad language of sub‑clause (b) of clause (2) of Article 58 and the rather wide and flexible reach of the "basic structure" of our constitution, this Court should adopt the rule stated by the Indian Supreme Court with in result that Principles of Policy and the provisions of the Objectives Resolution can be enforced and where the National Assembly does not or disregards to enforce the same, it can lawfully be dissolved under sub‑clause (b) of clause (2) of Article 58.

25. The defence of the Federation requires careful examination. First, I would like to take up the "basic structure" theory, as expounded by the Federation in their defence. This theory was first propounded in H ‑ H.Kesavananda Bharitils case (AIR 1973 S.C.1461) and followed in, State of Rajnisiwilz, case (AIR 1977 S.C. 1361). Both dealt with Article 356 of the Indian Constitution, which is equivalent to Article 2;3q of our Constitution. However, the "basic structure" ,Lneory nas for its support and basis Article 355, which exists in PART XVIII in the Chapter relating to EMERGENCY PROVISIONS in the Indian Constitution, in which Article 356 is placed. Article 355 provides that it is the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of the Constitution. Since Article 356 of the Indian Constitution, which relates to the provision by which the President, on receipt of a report from the Governor of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Provisions of the Constitution, the Supreme Court of India, on the basis of the "basic structure" theory, held that the scope of the proclamation under Article 356 was wide to embrace enforcement of basic democratic norms and for securing compliance thereof, if the State Government failed To observe them. In the State of Rajhistan's case (supra), the Supreme (court of India even went to the extent of holding that the Union Government, under the "basic structure" theory, could enforce a political doctrine or theory, when resorting to Article 356 of the Indian Constitution, so long as that doctrine or theory was covered by the underlying purposes of the, Constitution round in the Preamble, which in a recent case they had held to be part of their Constitution. ???

26. PART X relating to EMERGENCY PROCEEDINGS of our Constitution has no such Article parallel to Article 355 of the Indian Constitution. Clause (2) of Article 58, which covers dissolution of the National Assembly, is placed under sub‑heading COMPOSITION, DURATION AND MEETING OF THE MAJLIS‑E‑SHOORA (PARLIAMENT) under the major head titled THE MAJLIS‑E‑SHOORA (PARLIAMENT) in CHAPTER 2 of Part III of our Constitution. In the Articles under the sub‑heading in which Article 58 is placed, there is no Article which compels the National Assembly to either protect the Federation against external aggression or internal ‑ disturbance, or to ensure that it will carry on the Government in accordance with the provisions ,of the Constitution. Thus the scope of sub‑clause (b) of clause (2) of Article 58 cannot be enlarged by any ratio or rule similar to the "basic structure" theory, as propounded in India. Even otherwise, this theory had not been accepted by the Supreme Court of Pakistan in Fauji Foundation case (P L D 1983 S. C. 457 )

27. The arguments of the learned Attorney‑ General on behalf of the Federation invoking this theory to expand the horizons of sub‑clause (b) of clause (2) Of Article 68 can be accepted gather, the horizons of this sub‑clause can only be limited by the Parliamentary Practice prevailing governing dissolution of assemblies, if not by the limitation of the object for which it was made available to the President. 28. 1 now address myself to the four reasons given in the President's dissolution order justifying the dissolution of the National Assembly. Grounds (i) and (iv) are vague. Ground (i) is philosophicaI and has no nexus with the conditions precedent stated in sub‑clause (b) The President himself is a constituent part Of the Majlis‑e‑Shoora (Parliament) under Article

50. All the members of parliament are equally bound to promote and pursue the Objectives and Principles of Policy. The President's powers of giving directions or advice to Parliament are limited. He is a figure head, expected to the neutral and to act as a benign moderator. He cannot, therefore, dissolve the National Assembly for non‑fulfillment of the Objectives or Principles of Policy alone, which by themselves are abstract principles. This power alone vests with the people. There perhaps would be scope for the Governor dissolving a Provincial Assembly on the ground that the plans and policies laid down by the Federation were deliberately not being complied with by a Provincial Ministry, thus defeating the policies set down by the Ministry at the Center. But these plans under policies are not the abstract aspirations stated in the Objectives Resolution or Principles of Policy, but the actual plans and policies, laid down by the Federation in respect of stated matters to be enforced' and complied with by the Province. The President, however, has no power to dissolve the National Assembly for non‑compliance of plans and policies laid down by the said Assembly itself. If such a power was to be given to the President, it would create disorder, which cannot be permitted. This ground is, therefore, extraneous to the conditions laid down in sub‑clause (b), on the basis of which the National Assembly can be dissolved.

29. Ground (iv) is vague and is also extraneous to the conditions laid down in sub‑clause (b). It also has no nexus with the said conditions.

30. Grounds (ii) and (iii) relate to law and order, which is a. provincial subject. The National Assembly has no power under the Constitution to legislate on it. These grounds are also extraneous to the conditions laid down in sub‑clause (b).

31. All the four grounds stated in the dissolution order have no nexus with the political question covered by sub‑clause (b) of clause (2) Of Article 58, namely, whether a situation has arisen whereby the functional working of the National Assembly had become impaired 'and ascertainment of the will of the people has become necessary, No further grounds have been stated‑ The dissolution order, therefore, is based on extraneous grounds are having no basis in law, must be treated as not furnishing any atonable grounds on which the President could have formed an honest opinion, as required by the Constitution. This being so, he could also not have exercised his just discretion in the matter. A dissolution order under sub‑clause (b) of clause (2) of Article 58 requires to be passed with extreme caution, where the President, acting as a neutral and benign 'moderator, reasonably believes, from unchallenged facts within his view, that the functional working of the National Assembly is impaired and ascertainment of the will of the people has become necessary. The dissolution order appears to have been passed in gross and reckless disregard and disrespect for the mandatory provisions of the Constitution. The dissolution order? being ultra vires? and unconstitutional, is void and unsustainabe and must be struck down.

32. The next question that arises is what were the circumstances prevalent on or before 30th May, 1988, when the Provincial Assembly of the Punjab was dissolved. The Pakistan Muslim League Party had the overwhelming majority of the members of the House. The popular character of the party had not been disturbed nor compromised. On the contrary, it had won the bye‑election in Mian Channu (Punjab) held in 1987, which showed the mood of the electorate in favor of the party in power. The last session of the Assembly concluded, successfully on 14th February, 1988, without any ripple of discord., During Golden Jubilee Celebrations held on 2nd February, 1988, wherein the President of Pakistan, the Prime Minister of Pakistan,! the Chairman of the Senate and other high dignitaries were present, all made speeches, including the Governor of the Punjab, appreciating and applauding the democratic structure of the Assembly and found no fault in its functioning. The political scene, as in the Center, was stable and placid, with no signs of discord or difference. All these facts stand out prominently and I have no hesitation in taking judicial notice of the same. I would, therefore, hold that the basis on which the Provincial Assembly could have been dissolved, namely, that its functional working had become impaired, was not there.

33. I need not drag any greater length of chain with regard to,, the four grounds given by the Governor of the Punjab in dissolving the Provincial Assembly, as these are the same which were given by the President when dissolving the National Assembly and which have been held to be extraneous. Though a charge was made that the President had directed the Chief Minister and the Governor of the Punjab to make reports supporting the dissolution of the Assembly,' which had been mechanically acted upon by them and the Governor had not even cared to secure the prior approval of the President, I before issuing the dissolution order, to affidavits were filed on behalf, of the Provincial Government to show that such report were voluntarily? made or that the President's prior approval was secured. The absence of such affidavits leaves a strong impression that the facts stated! are not without substance. It is, therefore, clear that the dissolution order appears to have been passed in grosses and reckless disregard' and disrespect of the mandatory provisions of the Constitution. The dissolution order being ultra vires and unconstitutional, is void and unsustainable and must be struck down.

34. Whilst recording my conclusions about the dissolution of the National Assembly and Provincial Assembly of the Punjab, I am not unmindful of the fact that this judgment follows close on the heels of the untimely death of the late President, whose great services to this country, specially in the field of molding its ideology and setting its directions on the path of Islam, and to other Islamic countries, in trying to unite them as a great Islamic Millat, have already earned for him a name in this country and in other Islamic countries and for which he shall be honored for many years to come, but the duty of the superior Courts to give their judgments, without fear or favor, is also are essential feature of that ideology and system which the late President spent the later part of his life to enforce. Between the tussle of those that try to seek and secure naked powers, out of a system that lays down its parameters and limits, and those whose duty it is to ensure that such rules and limitations are observed, in which one or the other of the parties will succeed from time to time, the inviolable obligation of the seekers of the power to abide by and respect the Constitution, both in letter and spirit, as true Muslims cannot be avoided. The ruler that voluntary abides by and respects the Constitution, both in letter and spirit, not out of compulsion, but as an article of faith, is a true Amir‑ul‑Momineen, whose precept and practice will always be appreciated and serve as a beacon light for others to follow. In doing their duty, the superior Courts do not attack the character and honor of the man whose action is being challenged, but only his action, to remind and direct all concerned to their inviolable obligation to be loyal to the State and obedient to the Constitution and the law.

35. The only question that now remains is that regarding relief. Since the orders dissolving the National Assembly and the four Provincial Assemblies are ultra vires and unconstitutional, the petitioners are entitled to a writ of mandamus restraining the respondents from preventing them from performing the functions of their offices and to declaration that such of the respondents 'who presently hold Ministerial offices and listed posts be treated as having not been constitutionally appointed and as having no authority under the law to hold such posts, notwithstanding the short delay of three months that has occurred in the filing of their writ petitions. However, certain other factors which have intervened and which deserve to be taken note of, prevent me from granting these relief. Amongst these circumstances may be mentioned the decision of Mr. Muhammad Khan Junejo, the former Prime Minister, in accepting the action of .the President and the Governors and declaring the decision of his party i.e. the Pakistan Muslim League, to go to the polls and seek the mandate of the people. In this connection, the statement made by the former Prime Minister appearing in The Pakistan Times newspaper of 18th July, 1988, may be referred. Further, soon after the dissolution of the Assemblies, the Pakistan Muslim League got broken up into two parts, with some Ministers and members, both at the Center and the Provinces. supporting Mr. Muhammad Khan Junejo, the former Prime Minister, of some Ministers and Members, both at the Center 'he Provinces, supporting Mr. Fida Muhammad Khan. And these circumstances, it cannot be said that the previous majority parties are the Centre and the Provinces still command the majority of the votes, of the members in the Centre and the Provinces. If the reliefs are granted, the National and the Provincial Assemblies would be beset with major problems and conflict. Still further, on 20th July, 1988, the late President ordered that the general elections would be held on 16th November, 1988, which fact has been further confirmed in public statements by Mr. Ghulam Ishaq Khan, the present President, and the Election Commission of Pakistan has taken serious Steps to hold the general elections and in pursuance thereof has delimited constituencies and will soon finish the job of hearing appeals there from. one entire administrative machinery of the Federation and the Provinces is geared up to hold the general elections on 16th November, 1988, and the people, who previously were not in a position to vote for candidates belonging to certain political parties which had been banned, are now ready and impatient_ to exercise their vote freely and voluntarily without any restrictions. Taking all circumstances into consideration, the discretionary jurisdiction of the court under Article 199 of the Constitution does not permit me to grant the reliefs. As prayed. I do not, therefore, propose to grant any relief.

36. In view of the above, the short orders, announced by the Full Bench of this Court on 27th September, 1988, in all the petitions which are before me, shall stand. MUHAMMAD AFZAL LONE, J.‑‑I had the benefit and privilege of going through the draft of the detailed reasons recorded by my Lord the Chief Justice in support of the short order rendered by the Court on 27th September, 1988 and generally agree therewith. In view of the importance of the case I am tempted to add a few more words of my own, in support. thereof. The particulars of the writ petitions and the divergent contentions of the parties having already been embodied in the draft, need not be repeated by me. However, only a brief reference to their arguments shall be made, where necessary. It shall suffice to state that the late President General Muhammad Ziaul Haq in exercise of the powers vesting in him under Article 58(2)(b) of the Constitution, on 29‑5‑1988 dissolved the National Assembly and consequently, the Federal Cabinet with immediate effect. Likewise, on the following day the Governors of the Punjab, Sind and N.‑W.F.P. proceeded under Article 112(2)(b) to dissolve the respective Provincial Assemblies along with the Provincial Cabinets. The Provincial Assembly of Baluchistan was, however, dissolved by the Governor on 7th June, 1988. The validity of the dissolution of National Assembly and the Assembly of the Punjab Province, are under challenge before us.

2. Before proceeding further, it needs to be stated that after eight years Martial Law rule in the country imposed by Genera. Muhammad Ziaul Haq, general election was held in February, 1985 on non‑party basis. The National Assembly which came into existence, as a result of this election held 1st joint Session with Senate on 23rd March, 1985. The Parliament worked under the cover of Martial Law till the 30th December, 1985, when the proclamation imposing Martial Law was revoked and Martial Law lifted. Earlier during the currency of Martial Law, the President promulgated the Revival of Constitution Order, 1973 (P.O. 14 of 1985) whereby drastic amendments were made in the constitution? including Articles 48 and

58. The Constitution which had earlier been held in abeyance was revived thereby w.e.f. 10th March, 1985. It was further amended by virtue of 8th Constitution Amendment‑viii Act, 1985.

3. The ‑validity of the impugned orders has to be examined on the touch stone of Article 5,8 which is to be read alongwith Article

48. Both the Articles in so far as relevant for the purpose of these case are reproduced below:‑ ?

48. President to act on advice, etc.‑‑(l) In the exercise of his functions, the President shall act in accordance with the advice of the Cabinet, or the Prime Minister: Provided that the President may require Cabinet or as the case may be, the Prime Minister to reconsider, such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration. 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. (3). . . . . . . .. . .. .. . .. . . .. . (4)?? The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be enquired into in, or by, any Court, tribunal or other authority. (5) ??????????????..????????????????????????????????????????????????????????????????? (6) ??????????????..?????????????????????????????????????????????????????? (7) ???????????????????????????????????????????????????????????????????????? ?

58. Dissolution of National Assembly.‑‑(l) The President shall dissolve the National Assembly if so advised by the Prime Minister; and the National Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty‑eight hours after the Prime Minister has so advised. Explanation ...... ............................................. (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 the provisions of the Constitution, as ascertained in a Session of the National Assembly summoned for the purpose; or (b)?? 6 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." Under sub Article (2) of Article 48 the discretionary power exercised by the President in any matter, he is permitted by the Constitution, to do so, is immune for challenge on any ground whatsoever. But this immunity cannot be stretched to action taken by him under 'Article 58(2)(b) and there are weighty reasons for it. Sub‑Article (2) of Article 58 is pre‑fixed with the expression "Notwithstanding, anything contained in clause (2) of Article 48". which gives Article 58(2)(b) an overriding effect over the provisions mentioned in the non abstain clause. Ordinarily the purpose of employing such a non obstante clause is that the provision embodied therein shall to be an obstacle to the full operation of the provision following it. Reference on this connection My be made to South India Corporation Pvt.) Ltd. v. Secretary, Board of Revenue (AIR 1964 S.C.207). It is, however, noticeable that both Articles 48(2) and 58(2) more or lees operate in the same field and both begin with the non obstante clause. In such like cases it becomes the duty of the Court, or, so far as possible, to construe the two conflicting provisions in a manner that they harmonize. There are two tests for resolution of such a conflict. The inconsistency may be resolved on consideration of the purpose underlying the enactments and the object of appending ,on obstante clause thereto. The other rule usually applied is that the later enactment cuts down the ambit of and prevails over earlier one. The extension of the later test to the case in hand would irresistibly lead to a conclusion that Article 48(2) does not control Article 58(2) as both cannot co‑exist. For ascertaining the object of incorporation of non obstante clause in Article 58(2) a reference to the language of this clause as it existed before its amendment by the Constitution (Eighth Amendment) Act, 1985 appears to be apt. This clause when initially inducted into the Constitution under the Revival of the Constitution Order, 1973, runs as under: "The President may also dissolve the National Assembly when, in his opinion an appeal to the electorate is necessary." It is discernible from the extract of the debate of the National Assembly, placed before the Court by one of the petitioners, which held its session under the receding shadow of Martial Law, that an ineradicable fear of the exercise of absolute dominance by the President as to the dissolution of Assembly loomed large in the minds of the members. In this behalf the Independent Parliamentary group placed before the House a proposal for amendment of Article 58(2). In this connection the statement made by the Prime Minister in the House, was:? ????????? ? I am not unaware that a speech made in the course of passing, of an enactment does not carry much weight as an extrinsic aid to the interpretation thereof as it does not reflect the inarticulate mental processes behind the majority vote which carried the Bill., But the Speech referred to above was seemingly made by the Prime Minister as a result of some agreement between the party in power and the, opposite group and sheds light on the reasons for the change in the, language of the Art.58(2). The precedents are not lacking in which reference was made to the debates and the proceedings of the legislature for construing statutory provisions capable of more than one interpretation. Reference in this connection may be made to A. K. M. Fazal Quadar Ch. v. Government of Pakistan (P L D 1957 Dacca 342) and Tamizuddin Khan's case (P L D 1955 F.C.240). I myself had the occasion to consider this issue in Muhammad Ashraf v. Niamat Bibi (P L D 1981 Lah.520) and after examination of the case‑law on the subject chose to rely upon the proceedings of the National Assembly in construing Article 260(3) of the Constitution. From the Indian jurisdiction I may refer to A.R.S. Narasimha Rao v. State of Andhra Pradesh (AIR 1970 S.C.422 at 425) wherein a narrow construction of Article 16(3) of t I he Indian Constitution was supported on the basis, of the debates in the Constituent Assembly. Further in Union of India v. Harabhajan Singh Dhillon (AIR 1972 S.C.1061) extensive reference was made to the speeches in the Constituent Assembly in aid of the construction that imposition of Wealth Tax on the net Wealth inclusive of capital value of agricultural land falls within the provision of the residuary powers of the Parliament. In this view of the matter there is no legal bar to make reference to the Speech of the Prime Minister which unequivocally shows that non obstante clause I was added to Article 58(2) with the sole object of excluding the application of Article 48(2) granting immunity to exercise. discretionary powers by the President. There is thus, no merit in the objection to the review ability of the impugned orders on the plan of Article 48(2).

5. It has, been argued by the learned Attorney‑ General that the President's power to dissolve the National Assembly is amply recognized by Article 58(2)(b) in pursuance whereof he can dissolve the Assembly in his discretion, where in his opinion, a situation has arisen in which the Government of the Federation cannot be run in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. It is contended that the President is the sole judge of forming his opinion and the Court cannot sit on judgment as a Court of appeal, on his orders, to find out as to whether or not he formulated his opinion correctly and under a due sense of responsibility exercised his discretion wisely.

6. There should be no doubt that the power to dissolve the National Assembly is explicitly recognized in the Constitution. To dissolve the sovereign elected body like the National Assembly is the highest power, vesting in an individual, particularly when it is to be exercised at his discretion. But the discretion vesting in the, President is not absolute; it, is qualified one.. It has long been firmly settled that the discretion vesting in a public authority is always circumscribed by the object of the law that creates it. Reference here may usefully, be made to the following para. from Maxwell quoted by Yaqoob Ali, J. in M. Abdul Majid v. The West Pakistan Province and 2 others (PLD 1956 Lah.615):‑ ? ??..Whereas in a multitude of Acts something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the Statute, otherwise the act done would not fall within the Statute. According to his discretion means, it has been said according to the rules of reason and justice, not private opinion; according to law and not humour; it is to be not arbitrary, vague and fanciful, but legal and regular; to be exercised not capriciously but, on judicial grounds and for substantial reasons. And it must be exercised within the limits to which an honest man compete to the discharge of his office ought to confine himself, that is, within the limit and for the objects intended by the legislature.? There are conditions precedent for exercise of the discretionary powers in pursuance of Article 58(2)(b). In the first instance the President has to formulate an opinion as to whether or not (i) the Government of the Federation cannot be carried on, in accordance with the provisions of the Constitution, (ii) and an appeal to the electorate is necessary. Needless to state that both the conditions must co‑exist, The law‑maker has used expressions i.e. 'discretion' and 'opinion' or, the same clause and that is not without any object. It is now well established that when in relation to the same subject‑matter two different words are included in the same Statute, there is presumption that they are not used to carry the same sense. To my mind the word 'opinion' conceivably has been inducted to delimit the scope of the discretionary powers. The President has to first form his opinion objectively and then, it is open to him to exercise his discretion o way or the other, i.e. either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) available to the action under Article 58(2) that can possibly be o in relation to 'discretion, and not 'opinion'. It is clear to me that constitutional obligation is cast on the President, that before exercise his discretion he has to form his 'opinion'. In Abul Ala Maudoodi Government of West Pakistan (P L D 1964 S.C.673) Cornelius, C. in his learned and lucid judgment, while interpreting certain provision of the Criminal Law Amendment Act, 1908, construed the word opinion as under: ???????????? ? ....... 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 subjective quality, as against object 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 an honest opinion based upon the ascertainment of certain matters which are entirely within the grasp and appreciation of the Governmental agency is clearly a pre-requisite 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 ??..? A Division Bench of the Karachi High Court in the case of Star Rolling Mills v. Commissioner of Income‑Tax (P L D 1974 Note 129 at p. 189) on the basis of certain authorities including Corpus Juris Secundum, construed the word 'opinion' appearing in section 13 of the Income Tax Act, 1922, as follows:‑ "An opinion on the basis whereof a statutory authority is entitled or empowered to take any action or initiate any legal proceedings, may be accurate 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." It is thus evident that before taking any step to dissolve the Assemblies the President was duty bound to form an opinion. In the context the constitutional provision the formation of opinion is different for a mere exercise of win, or doing a thing at one's pleasure and when The opinion should be such that it will bear public examination 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. 7. 1 concur with the weighty reasons enumerated by the learned Chief Justice for striking down the impugned orders. The President himself chose to state the grounds. Where grounds are disclosed, their validity can well be examined through judicial intervention. These grounds are vague, unintelligible and not germane to Article 58(2)(b) and also suffer from malice in law highlighted by me at page 103 of the report in the case of Ghulam Mustafa Khar v. Pakistani (P L D 1988 Lah.49). If the Authority exercising discretionary powers has misdirected itself or rested its order on irrelevant or extraneous consideration or exercised authority not in terms of the Statute, it can well be stated that the discretion has not been exercised at all. Such order is subject to control through judicial review. It is to be remembered that the National Assembly or for that matter the Provincial Assembly are the creation of the Constitution. Their rights and obligations are embodied in different provisions of the Constitution. In democratic polities, there is a basic constitutional postulation developed during years of civilized living of the human society, that as long as the elected Head of the representatives enjoys the support of the majority inside and outside the House, and acts with some cohesion within the broad contours of the Constitution the Parliament is entitled to remain in power, till it is dissolved by efflux of time. The question of its dissolution would arise only in highly exceptional circumstances. Any provision in derogation of the sovereignty of the Parliament has to be strictly construed. It is obvious that upon the facts appearing on the record and the law on the subject, the orders dissolving the Assemblies should be declared as without lawful authority.

8. The origin of the provision relating to the dismissal of the Assemblies, in the constitutional documents relating to the sub?continent may not unfairly be attributed to section 19 of the Government of India Act, 1935 which conferred discretionary power on the Governor‑General to dissolve the Federal Assembly. Under section 62, a like power vested in the Governor in respect of the Legislative Assembly. The comments on the latter's power for dissolution, appearing in Todd‑‑ Parliamentary Government in the Colonies, 2nd Edition, page 774 are quite enlightening and hold good even now: "But dissolution is an extreme step and cannot be ordered unless the Governor was properly satisfied that the Legislature does not reflect the views of the electorate and the Country on any vital question. Where a Ministry has forfeited the confidence of the Legislature it will not be legitimate for the Governor to straightway order a dissolution of the Assembly without exploring the possibility of forming another Ministry who may command the confidence of the legislature. A dissolution ordered solely with intent of retaining in power particular ministers in office would not seem to be a legitimate use of this power.? In the scheme of Government of India Act, 1935 if the Governor acted in the exercise of his individual judgment h4 was subject to the general control of the Governor‑General and where the latter acted in his discretion, he was subject to the orders of the Secretary of State who on his turn was responsible to the British Parliament. Those were the days of colonial rule but here (the dissolution order passed in exercise of power under Art.58(2)(b) is not open to scrutiny before any representative Body such as Senate. This would furnish Z another ground for judicial review of the unconstitutional orders of the President. As laid down in Federation of Pakistan v. Saeed. Ahm3 Khan (P L D 1974 S.C.151). The ouster of jurisdiction of Courts cannot readily be inferred because the provision seeking to oust their jurisdiction even by a constitutional provision is to be construed strictly with pronounced leaning against ouster.

9. It has also been emphasized before us that when the Assembly is wrongly dissolved, the resort to electorate is not only the cause but also the remedy, for, the re‑election is an enormously effective weapon in the hands of the outgoing members of the House who may re‑enter the Parliament with a thumping majority and impeach the President. In the submission of the learned Attorney‑General such a situation calls for resolution of the issue by political method and not through Court adjudication. It is pointed out that in a highly political case the Court may invidiously get involved in political sensitivity rather than render a decision of legal issues.

10. It would need to bear in mind that the Judges have to interpret law, without being motivated by political considerations, But, the constitution being supreme, all organs of the State owe their existence to and derive their authority from it. Where some functionary acts against the provisions of the Constitution, within the limits of jurisdiction conferred on them under the Constitution, the Courts may inevitably have to step in. A situation may arise that no relief other than the judicial relief may be available to the people. The Judges do not decide cases in vacuum and at times their determinations may imperceptibly be shadowed by political atmosphere with which the country is charged. But as has been said and said so well by D'Smith: .... In some political situations a judicial duty to rule upon the legal merits of the case may have to be accepted as an inescapable obligation or as the least of evils."

11. On the issues regarding dissolution of the Provincial Assembly, the Care‑taker Government and the laches as well I respectfully endorse the views of my Lord the Chief Justice. In such like cases involving fundamental Constitutional issues a few weeks' delay, 'is hardly of, any significance. Our inability to refer to the copious case‑law cited at the Bar from our own Courts and also Indian jurisdictions is ?regretted. I may add that while it may be advantageous on occasions to rely upon foreign precedents, to interpret the provisions of our Constitution but ultimately it is the language of the Constitution itself, which is to be construed and the meanings to be put on this language should not be overshadowed by the extraneous principles of other Constitutions which are not the foundation of our Constitution. 12. 1 am too of opinion that despite the unsustainability of the orders of the President and the Governor, no relief by way of restoration of assemblies can be granted, I have pondered over this question with considerable concern and have respectfully chosen tot concur with the learned Chief Justice, In taking this decision not? only I am in no small measure influenced by the fixation of the date of the election but also by the unequivocal pronouncement made by the Acting President that, the election shall be held justly, fairly and power transferred to the chosen representatives of the people. Another factor which agitated my mind is that the political party in power all the time of dissolution if the Assemblies, is now unfortunately divided into factions and there is not only lack of cohesion but somewhat polarization between the erstwhile Central and the Provincial Heads of the Government. The possibility that restoration of the Assemblies May lead to confrontation between them, adding much to the confusion which already bounds can not be ruled .In these circumstances, notwithstanding the illegality of the impugned orders and the constitutional problems staring at our face. I am constrained to refusal not only the revival of the Assemblies but also the Cabinets, and leave it to the Posterity to adjudge 'he wisdom of this refusal But let it be firmly understood that it is' not because the dissolution the Assemblies has become a fait accompli or that there is no in of their revival that their restoration is declined. Even if there is‑no precedent as to the revival of a dissolved Assemblies, but the national' interest demands so, this Court shall not hesitate to discharge its obligations, LEHRASAP KHAN, J.? I? entirely agree with the conclusion arrived at by the learned Chief Justice and the views expressed by his Lordship in regard to all the issues involved in the under consideration Writ Petitions. It may, however, be added that the Care‑taker cabinet envisaged in Article 48(5)(b) Of the Constitution Of Islamic of Pakistan, has to be headed by the Prime Minister as is evident from the provision Of Article 91(8) ibid, which read: "Nothing contained in this Article shall be construed a‑?disqualifying the Prime Minister or any other Minister or 4 Minister of State for continuing in office during any period during which the National Assembly stand s dissolved, or as,,' preventing the a ointment of any person as Prime Minister other minister or as minister of state during and such period.? this proposition further finds support from the contents of the form of Oath, prescribed for Federal Ministers, set out in the Third schedule It is provided therein that a Minister will not directly or indirectly communicate or reveal to any person any secret official information which is brought under his consideration or becomes known to him as Federal Minister unless specially permitted in this behalf by the Prime Minsiter? Needless to add that amendment in the prescribed form Oath or adaptation thereof so as to substitute 'President with 'Prime Minister! is not permissible unless the Constitution is amended in accordance with the procedure prescribed in Part XI of the Constitution. GUL ZARIN KIANI, J.‑‑I have had the advantage of going through the reasons given by my Lord the Chief Justice in support of short order passed on 27‑9‑,1988. 1 agree with the reasons but in view of the importance of legal questions involved and their long shadowy effects on our body politic, extensive arguments addressed at the? Bar, I wish to make my own observations. On the eventful day of May 29, 1988, the President late General Muhammad ziaul Haq purporting to act under Article 58(2)(b) of the Constitution of the Islamic Republic of Pakistan served a forma. charge‑sheet upon the members of the National Assembly, ordered its dissolution and dismissed the Cabinet headed by Prime Minister, Mr. Muhammad Khan Junejo. On the succeeding day, Governor of Punjab followed suit and performed the similar act in regard to the Provincial Assembly of the Province and its Cabinet headed by Nawaz Sharif. Upon. dissolution of the Assemblies, certain consequential Steps were taken in due course including the appointment of "'care taker ?Cabinet at the Centre and in the Province. In this way, Lit, Assemblies brought M existence as a result of partyless election held in 1985 were given an unceremonious send‑off. On gloomy day of August 17, 1988, late General Muhammad Zia‑ul‑Haq alongwith his members of entourage died in the worst‑ever air disaster in, the; history of the country. Some time thereafter, number of writ petitions were filed in this Court challenging the action of 'late President as also the Governor of Punjab. In these writ petitions, dissolution orders of the Assemblies, absence of the Prime Minister in? Care‑taker Cabinet and its role, were questioned and a prayer for reinstatement of dissolved Assemblies was also made, Some of these petitions were brought at the instance of? Ex‑MNAs including a former Federal Minister, some by Ex‑MPAs and yet others by citizens of this country. Here I may add a note that two writ petitions had already been filed during the lifetime of the late President. All these batch of petitions were admitted to formal hearing and a Full Bench consisting of five Judges of this Court was constituted to adjudicate upon the vital questions of constitutional law raised in 'these petitions. From close examination of writ petitions, following questions are raised:‑ (i)???? Whether the action of late President dissolving the National Assembly on the stated grounds was in consonance with the constitutional provisions in Article 58(2)(b) or to put it differently, was it an act in accordance with the situation envisaged by the aforestated Article of the Constitution; ? (iii)?? Whether? the Governor of Punjab acted in accordance with Article 112(2)(b) of the Constitution to order dissolution of the, Provincial Assembly and in case his act is not met with affirmation by the Court, what are its essential consequences; (iv) What is the connotation of the term 'Care‑taker Cabinet' in Article 48(5)(b), Article 105(3) of the Constitution, its role, and, whether Prime Minister is an essential component of the Care‑taker Cabinet at the Centre; (v) What is the equitable appropriate relief to be granted by the Court in the circumstances of the case. Obviously above formulations raise some very difficult and interesting questions of constitutional law. However, in the discussion to be shortly followed, I shall endeavour, in all humility to resolve the legal issues as best as I can. But, before I advert to the legal questions, it is my wish to make certain preliminary observations. Our forefathers relentlessly fought for a separate homeland with certain defined objectives in their view. In the struggle for freedom, invaluable sacrifices were made by 'men, women and children alike Millions became homeless and sought shelter in the new land. It is not denied nor can it be, that Pakistan emerged as a sovereign State on the map of the world purely as a result of democratic political struggle headed by our late Quaid. A country conceived to run? a democratic pattern of life soon after its birth, got derailed from the acknowledged democratic pattern underwent successive martial laws. It writhed groaned under this rule when eventually as a result of partyless elections, elected representatives took their appropriate place in the Assemblies. These Assemblies continued to work till they were sacked on 29th, 30th of May, 1988 and an appeal to political sovereign i.e. people of Pakistan for a fresh election was made to elect their representatives in a free and impartial election scheduled and hoped to be held on 16‑11‑1988, a date not far off. With this background, I shall now advert to the questions in seriatim. As the vires of the order of the late President dated 29th May 1988 dissolving the National Assembly and that of the Governor of Punjab dated 30th May, 1988 have been questioned, it shall be useful to make a reference thereto. Order dated 29th May 1988, reads:‑ "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 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 the public morality has deteriorated to unprecedented level; 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 of Pakistan, in exercise of the powers conferred on me by Clause C????????? (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)" The order dated 30th May 1988 of the Governor reads:‑ NOTIFICATION In exercise of the powers conferred on him under Clause 2(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, the Governor of the Punjab is pleased to dissolve the Provincial Assembly of the Punjab with immediate effect and in consequence thereof, the Punjab Cabinet also stands dissolved forthwith. ???????????? (Sd) Anwar Zahid Chief Secretary.' Relevant? Articles of the Constitution bearing on the questions involved are 2 A, 48, 58, 91, 105, 112 read with the Preamble to the Constitution of Islamic Republic of Pakistan. Our Constitution envisages a parliamentary form of polity. Some provisions have? been engrafted upon it by way of subsequent amendments? to partake? presidential 'form in a purely parliamentary form, it is always the Prime Minister who is given a choice to advise for dissolution of the National Assembly before its normal term runs out, and by well established conventions. this advice is accepted. Article 58(l) of the Constitution is clearly consonant with this spirit of the parliamentary form of Government. It says that ‑the President shall dissolve the National Assembly, it ,v advised by the Prime Minister and unless sooner dissolved, dissolution shall automatically take place at the expiry of 48 hours after the Prime Minister's advice. This evidently shows that the final say In matter of dissolution rests in the Prime Minister. By President's Order 14 of 1985‑‑Revival of the Constitution of 1973 Order, 1985, sub‑Article (2) was added to Article 58, It reads:‑ "(2) The President may also dissolve the National Assembly in his discretion where, in his opinion, an appeal to the electorate is necessary." Moreover, by Act XVIII of 1985?Constitution (Eighth Amendment) Act, 1985 aforesaid sub-Article (2) was substituted which in its amended form to the extent of its relevance, reads:‑ ?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)???????. ??? (b)?? a situation ,as arisen in which Government of the Federation cannot be carried on in accordance with the provisions of the ????? Constitution and an appeal to the electorate is necessary." Consistent reading of Article 48, would indicate that whereas the, Prime Minister has a final say in the matter of dissolution of the National Assembly, the President is also given the power to dissolve it' subject to the all important formation of an opinion showing that a situation had arisen wherein the Government of the federation could not be carried on in 'accordance with the provisions of the Constitution and an appeal to the electorate for fresh poll was necessary. Power of the President in regard to dissolution of National Assembly is hedged in with limitations. Sub‑Article (Z) provides three essential requirements: ‑ (i) The President should form an opinion; (ii) That a situation had arisen in which the Government of Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary; (iii)??? That, in his discretion, dissolution of‑ the Assembly was necessary." Immediately, the question arises whether in the opinion making as to the existence of a specified situation, President could be subjected to judicial scrutiny. To put it more clearly, whether the act of President dissolving the National Assembly is justiciable and the Court can examine whether the stated grounds had nexus with the ? specified situation in Article 58(2)(b) of the Constitution. Under our Constitution, superior Courts have a role to play and duty to act. Judges are under an oath to preserve and protect' the Constitution. Power is conferred on the Court to interpret the Constitution and to save it from being transgressed by any organ or functionary of the State. As said above, the President who is symbol of the unity of the Federation can order dissolution of the Assembly, if the circumstances visualized in Article bb(2)(b) are shown to exist. By Eighth Amendment, 1985 (Act XVIII of 1985), amplitude of powers conferred on the President in this behalf were abridged. Article 48(2) opens with an non obstante clause. It says that notwithstanding that the President was oblige to act in accordance with the advice of the Cabinet, Prime Minister, yet, in matters where the President is empowered to act in his discretion, validity of its exercise could not be called in question on any ground whatsoever. Sub‑Article (2) of Article 58 also starts with non obstante clause, says that notwithstanding anything contained in Clause (2) of Article 48, the President may also dissolve the National Assembly. It clearly means that sub‑Article (2) excludes the application of sub‑Article (2) of Article 48 to the situation visualized it, the former. Obviously, the President of Pakistan was not conferred with unfettered powers to dissolve the National Assembly as and when he chose. He could act only in specified circumstances. His powers of dissolution of National Assembly were hedged in by existence of a situation in which the Government of Federation could not be carried on in accordance with the provisions of the Constitution and a fresh appeal to the electorate was necessary. 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 tit; 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. I may not be understood to say that the High Court is entitled to enter the political thicket and decide upon the political questions or their expediency. All that I say is that the grounds stated or disclosed in support of the action must be the grounds which the Constitution says must be kept in view_ Extraneous matters must not enter the field of opinion making. My Lord the Chief Justice, has, in an exhaustive and exquisite manner dealt with this important issue and I fully agree with his approach which represents correct enunciation of legal position. To speak with respects, the stated grounds are indefinite, suffer from vageueness and bear no reasonable nexus to the situation spoken of in the relevant Article. In this view, the condition precedent for the exercise of power does no‑k exist and this matter becomes clearly justiciable by the Court which on the scrutiny of stated grounds is entitled to say that action was not taken in accordance with the provisions of the Constitution ; Similar comments attract the action of the Governor of the Province of Punjab. This brings me to the question of Care‑taker Cabinet, In Article 48(5) it is laid down that upon dissolution of the National Assembly, President shall in his discretion,‑‑ (a)??? appoint a date, not later than ninety days from the date of the dissolution for holding of a general election to the Assembly, and (b) appoint a Care‑taker Cabinet. Term 'Care‑taker Cabinet' has not been separately defined in the Constitution. Article 91 deals with Cabinet. It provides that there shall be a Cabinet of Ministers with the Prime Minister as its head, J to aid and advise the President in the exercise of his functions. j Sub‑Article (8) ordains that during the interregnum, when the National j Assembly is dissolved, nothing contained in Article 91 shall be construed as disqualification for the Prime Minister, any other Minister or Minister of State from continuing in office or preventing the appointment of any person as Prime Minister, other Minister or Minister of State during any such period. First part of sub‑Article (8) relating to continuance in office of the then Prime Minister in office does not apply because the Cabinet was dismissed simultaneous with dissolution of National Assembly. The question is whether the fresh appointment of Prime Minister to make the Cabinet complete is necessary. In my view, a Care‑taker Cabinet is a Cabinet to be headed by a Prime Minister and without it, it may not appear to be complete. A living body without a head is unthinkable. As regards the role of such a Care‑taker Cabinet, . it was observed by Sabyasachi Iflukharii, J. in Madan Murari Verma v. Choudhiri Charan Singh and another (AIR 1980 Cal. 95). "There is no mention of tiny Care‑taker Government as such in our Constitution or in the Constitutional law, though Sir Ivor Jennings has described in his book‑‑Cabinet Government, Third Edition, page 85 the ministry that was formed by Mr. Churchill in England after the war before and pending the General election in 1945 as Care‑taker Government. But an extraordinary situation like the present, in my opinion, calls for a Care‑taker Government and, therefore, the respondent No.1 and his Council of Ministers can only carry on day‑to‑day administration in office which are necessary for carrying on "for making alternative arrangements". ????????????????????????????????????????????????????????????????? ? In effect the President in my opinion is, therefore, not obliged to accept the advice that the respondent No.1 and his Council of Ministers tender to him except for day‑to‑day administration and the Council of Ministers and the respondent No.1 should not make any decisions which are not necessary except for the purpose of carrying on the administration until other arrangements are made. This in effect means that any decision or policy decision or any matter which can await disposal by the Council of Ministers responsible to the House of People must not be tendered by the respondent No.1 and his Council.? of Ministers. With this limitation the respondent No.1 and the Council of Ministers can only function. And in case whether such advice is necessary to carry on the day‑to‑day administration till "other arrangements are made" or beyond that, the President, in my opinion, is free to judge. It is true again that this gives the President powers which have not been expressly conferred by the Constitution but, in my opinion, having regard to the basic principle behind this Constitution under Article 75(3) read with Article 74(l), in the peculiar facts and circumstances of this case is the only legitimate, legal and workable conclusion that can be made". Beyond this statement, I do not propose to go further. Before concluding, I may attend also to the objections raised on behalf of Federation to the maintainability of the writ petitions, based on the grounds of laches, delay and acquiescence. It is true that majority of the writ petitions were filed much after the date of the death of late President. In his lifetime, his actions were not brought under challenge before any Court by the Ex‑MNAs or Ex‑MPAs. There is no satisfactory and reasonable reason for delaying the commencement of legal proceedings. One of the writ petitioners, namely, Haji Saif Ullah Khan was a Minister in the Federal Cabinet. Consequent upon dissolution of the Assemblies, certain very important consequential steps were taken under the Constitution. Much water was allowed to flow under the bridges and not a finger was raised. In A I R 1974 Andhra Pradesh 106, question of delay for refusing relief was highlighted, In para. 16 of the judgment, the Court ?observed: "Lastly, there is the question of delay which, in my opinion, disentitles the petitioner from obtaining any relief from this Court. The petitioner is a Member of the Legislative Assembly and he complains of the loss of his civil and political rights. If the application was meant seriously one could have expected him to rush to Court as soon as the Proclamation was made But, instead he waited and tarried. He filed the writ petition on 9‑3‑1973 though the Proclamation was made on 18‑1‑1973. Meanwhile pursuant to the Proclamation and the Order of the President, Advisers to the Governor were appointed and for the last two months the entire administration has proceeded on the basis of the Proclamation and the Order. If the proclamation and Order of the President are void, then in the last two months there have beer. many illegal transactions, taxes have been wrongfully collected, payments have been illegally made, public accounts, improperly settled, orders have been wrongly issued, licences and permits unauthorisedly granted etc, Yet, the petitioner, a Member of the Legislative Assembly claiming to be interested in Constitutional Government chose to lie by. Sri Choudary urged that the petitioner had a right to complain at any time so long as the Proclamation and the Order were it. force and at any rate, according to the practice of this Court, within a period of six months. The question is not one of limitation or whether the petitioner has a right to approach this Court but whether this Court ought to issue a Rule in the present circumstances. I am firmly of the view that it will not be right for this Court to issue a Rule on this related application after so much has happened. Sri Choudary brought to my notice the circumstance that the petitioner was in preventive custody for a few days. But admittedly he was free from the first week of February onwards. The question is not whether a particular individual was or was not in a position to bring to the notice of the Court a matter like the present one but whether it was proper for this Court to issue a Rule. I have already indicated my reasons for holding that it would be highly improper for the Court to Issue a rule at this stage. Though I have a suspicion that the application lacks seriousness, I do not want to venture so far as to say that the application is not bona fide. It is unnecessary. But I am quite satisfied that it is belated." As I have said above, commencement of legal action was much delayed. Nonetheless, in view of the Supreme Court expressed in case of Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (P L D 1963 SC 486), holding that: "Lastly, it remains to notice the argument that the High Court should have dismissed the application on the ground of laches, since it was being made nearly nine months after the appellants entered upon their respective offices as Ministers. if the Ministers were holding office without any lawful authority, their continuance in office was in the nature of a continuing wrong giving rise to a cause of action de die in diem, and, therefore, there could be no question of any laches. in any, event, on question relating to the constitutionality of actions the ground of laches cannot prevail, for there, can be no? estoppel against the Constitution and an act which is unconstitutionality can not become constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act", I am not inclined to entertain the plea of laches, delay etc. for ordering dismissal outright. Last comes the question in regard to the appropriate relief to be granted in this case. I have carefully considered this matter and the relevant circumstances, bearing upon this question. Dissolved Assemblies were product of partyless elections. Some of the political parties having some following boycotted the elections and remained out of arena. In course of time, demand for mid‑term elections gained force but the Government of the day did not accede to this demand. Eventually, when the Assemblies were dissolved and an appeal to the electorate for fresh poll was made, with negligible exceptions, every one welcomed the occasion and hailed the decision but gave their own reasons for it. In this view, it may not be just and appropriate to balk and thwart the expression of popular will of the people whose voice in the ultimate analysis, only matters Keeping this factor in view, my conclusions are:‑ (i)???? Order dated May 29, 1988 of the President dissolving the National Assembly and that of the Governor of? Punjab passed on May 30, 1988 dissolving the Provincial Assembly, on the stated grounds, are not sustainable; (ii)??????????? Prime Minister is an essential component of Caretaker Cabinet; (iii)??? Consequent upon dissolution of the Assemblies, process set in motion in accordance with the provisions of the Constitution and consequential steps thereto shall not be interrupted and interfered with; (iv)?? In the circumstances, relief for restoration/ reinstatement of dissolved Assemblies cannot be made. For sake of clarity, it may be observed that despite unsustainability of the impugned orders dissolving the Assemblies, interference is declined and no writ or direction can issue. In the end, I must put on record my deep sense of appreciation for the invaluable assistance rendered to the Court by learned counsel for the rival parties and the learned amicus curiae. M. B. A. /M‑912/L ???????????????????????????????????????????????????????????????? Order accordingly.