P L D 1989 Quetta 25 (PLP)

ABDUL QADEER CHAUDHARY, C.J.‑‑We had disposed of these petitions by our short order dated 23rd January, 1989. The reasons for allowing the petitions are hereby recorded. As these petitions raise common questions of law and facts, therefore, they are being disposed of by this common judgment.

2. The facts in brief are that general elections for 43 seats (including three seats allocated for non‑Muslims) of the Provincial Assembly of Baluchistan were held on 19th November, 1988. The results of 42 seats were notified and result of one seat was annulled by the Election Commission. The Assembly was summoned for the oath of Members and , election of lady members on 30th November, 1988. Two lady members were elected making the total number to

44. The first session of the Assembly for the election of Speaker and Deputy Speaker was summoned on 2nd December, 1988. After the election of Speaker and Deputy Speaker, another session was called by the Governor Baluchistan for the election of Chief Minister, as required under clause (2‑A) of Article 130 of the Constitution of the s Islamic Republic of Pakistan (hereinafter referred to as "the Constitution"). Respondent No.9, Mir Sabir Ali Baluch, proposed the name of Mir Zafarullah Khan Jamali, the respondent No.5, as the Chief Minister. Some objections were raised. After conclusion of the proceedings in the House, the Speaker issued a Certificate indicating that respondent No. 5 was elected as Chief Minister by securing 22 votes including the casting vote of Speaker. The respondent No.5 took Oath of office before the Governor Baluchistan on the same day. On the night between 14th and 15th December, 1988, a telephonic advice was given by the Chief Minister from Quetta to Governor Baluchistan at Islamabad for dissolution of the Provincial Assembly. The Governor asked the Chief Minister to furnish his advice in writing. The written advice was handed over to the Secretary to the Governor Baluchistan at 4‑00 A.M. in Quetta. At 4‑30 A.M. the Governor Baluchistan while at Islamabad finally passed the order of dissolution of Provincial Assembly of Baluchistan exercising his powers under Article 112(1) of the Constitution.

3. We have heard Mr. S. M. Zafar, Mr. Azizullah Sheikh, Mr.Makhdoom Ali Khan and Mr. Muhammad Aslam Chisthti, Advocates for the petitioners. Learned Attorney‑General assisted the Court on our request. Mr. Yaqoob Khan Yousufzai, learned Advocate‑General Baluchistan appeared on behalf of respondents Nos.l and

2. Mr. Sirajul Haq, Advocate appeared on behalf of respondent No.5. Mr. Azizullah Memon, Advocate appeared on behalf of respondent No.11 and Mr. K.N. Kohli, Advocate appeared on behalf of respondents Nos.6 and 8.

4. It is contended by the learned counsel for the petitioners that the respondent No.5, who had been ascertained as the person to be the Chief Minister in the proceedings of afternoon session of 2nd December, 1988 had not yet obtained the vote of confidence, which he was required to get under Article 130(3) of the Constitution and, therefore, he was not a Chief Minister within the meaning of the word "Chief Minister" given in Article 112 of the Constitution. It is urged by Mr. S.M. Zafar that though he was certified by the Speaker to be the Chief Minister, yet he was not the Chief Minister who could exercise authority to advise the Governor for the dissolution of Provincial Assembly. According to him, he was only a Provisional Chief Minister. With reference to explanation to Article 112(1) of the Constitution, learned counsel submitted that there are three types of Chief Ministers; (i) a Chief Minister against whom a notice or resolution for vote of no‑confidence has been moved or passed; (ii) a Chief Minister who has resigned but asked to continue; and (iii) a Chief Minister who has not obtained a vote of confidence under Article 130(3) of the Constitution. Therefore, he should also be construed a Chief Minister who has not obtained a vote of confidence and such construction would be plausible. He referred to the Oxford English Dictionary, 1961 Edition, page 881 and Words and Phrases, Volume 8, page 6531654, for emphasising meaning of word "construe" used in the explanation for Article 112 of the Constitution. He further submitted that legislature while drafting do not use unnecessary words, and thus precision is the art of drafting. When it is an explanatory clause, it cannot be exhaustive. He referred to the Interpretation of Statutes by "Benian" 1984 Edition, regarding "strained construction" at page 300.

5. Mr. Azizullah Sheikh, Advocate supported the contentions of Mr. S.M. Zafar and submitted that respondent No.5 was not legally the Chief Minister to advise the Governor for dissolution. According to learned counsel, said respondent was irregular Chief Minister, as he had not obtained a vote of confidence under Article 130(3) of the Constitution. It is further urged that a period of 48 hours has been given to the Governor to make efforts to save the Assembly.

6. Mr. Makhdoom Ali Khan, Advocate on the other hand submitted that as respondent No.5, had not obtained the majority votes of the Provincial Assembly, therefore, he could not advise the Governor ,for the dissolution of Provincial Assembly.

7. Mr. Muhammad Aslam Chishti, Advocate and Mr. K.N. Kohli, Advocate supported the contentions of the above‑mentioned three learned counsel.

8. Learned Attorney‑General of Pakistan submitted that no relief has been claimed against the Federal Government, therefore, Federal Government is not a necessary party. The respondent No.3 in his written statement has stated that Federation has been joined unnecessarily. It is neither a proper nor necessary party and the impugned action of dissolution of Assembly was not taken at the instance of Federal Government, nor the Federal Government had any prior knowledge about the said action. Learned Attorney‑General in his arguments submitted that under Article 130(2‑A) of the Constitution totality of membership, as argued by Mr. Makhdoom Ali Khan, Advocate does not arise, as the language is very clear. He further submitted that Article 55 of the Constitution contemplates that all decisions shall be taken by majority of members present and voting and once the Speaker has given a Certificate that such member has got majority under Article 130(2‑A) of the Constitution, this Court cannot inquire into the validity of such Certificate. He also disputed the contention of the petitioners' counsel that there are certain categories of Chief Ministers. According to him, a Chief Minister is a Chief Minister for all intents and purposes after he has taken oath of office.

9. Learned Advocate‑General, Mr. Azizullah Memon, Advocate and Mr.Sirajul Haq, Advocate have adopted the legal arguments advanced by learned Attorney‑General. Learned Advocate‑General submitted that once High Court comes to the conclusion that proceedings in the Assembly were within the four walls of the Constitution, the petitions are not competent. Mr. Sirajul Haq, Advocate for respondent No.5 submitted that advice tendered by the Chief Minister was mandatory in nature. Dissolution cannot be gone into as there is complete immunity granted by the Constitution itself. In support of such view, he referred to the case of Khawaja Muhammad Sharif v . Federation of Pakistan through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others, reported in P L D 1988 Lah. page 725 at para. 10, pages 772 to 774, and stated that there is no need for "strained construction", as argued by Mr.S.M. Zafar, Advocate for the petitioner, because language of the provisions of the Constitution is clear.

10. We have considered the respective contentions of learned counsel for the parties. The precedents cited by the learned counsel for the parties from the Indian jurisdiction and British Courts are not relevant, because in Britain, there is no written Constitution and such questions are settled by Conventions. The Indian Constitution does not have provisions similar to Article 130(2‑A) and (3) of the Constitution, therefore, no guidance can be taken from these precedents. The provisions which require our interpretation are Article 112 and Article 130 of the Constitution. For the sake of convenience, these Articles are reproduced below:‑‑ "ARTICLE 112: (1) The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister; and the Provincial Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty‑eight hours after the Chief Minister has so advised. Explanation.‑‑ Reference in this Article to "Chief Minister" shall not be construed to include reference to a Chief Minister against whom notice or a resolution for a vote of no‑confidence has been given in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no‑confidence has been passed or who is continuing in office by virtue of clause (2) of Article 134 or a Provincial Minister performing the functions of Chief Minister under clause (1) or clause (3) of Article 135. (2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion.‑‑ (a) a vote of no‑confidence having been passed against the Chief Minister, no other member of the Provincial Assembly is likely to command the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose; or (b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary." "ARTICLE 130: (1) There shall be a Cabinet of Ministers, with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions. (2) The Governor shall appoint from amongst the members of the Provincial Assembly a Chief Minister who, in his opinion, is likely to command the confidence of the majority of the members of the Provincial Assembly. (2‑A) Notwithstanding anything contained in clause (2) after the twentieth day of March, one thousand nine hundred and eighty‑eight, the Governor shall invite the member of the Provincial Assembly to be the Chief Minister who commands the confidence of the majority of the members of the Provincial Assembly, as ascertained in session of the Assembly summoned for the purpose in accordance with the provisions of the Constitution: Provided that nothing contained in this clause shall apply to a Chief Minister holding office on the twentieth day of March, one thousand nine hundred and eighty‑eight, in accordance with the provisions of the Constitution. (3) The person appointed under clause (2) or as the case may be, invited under clause (2‑A) shall, before entering upon the office, make before the Governor oath in the form set out in the Third Schedule and shall within a period of sixty days thereof obtain a vote of confidence from the Provincial Assembly. (4) The Cabinet shall be collectively responsible to the Provincial Assembly. (5) The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. (6) The Chief Minister may, by writing under his hand addressed to the Governor, resign his office. (7) A Minister who for any period of six consecutive months is not a member of the Provincial Assembly shall, at the expiration of that period, cease to be a Minister, and shall not before the dissolution of that Assembly be again appointed a Minister unless he is elected a member of that Assembly. (8) Nothing contained in this Article shall be construed as disqualifying the Chief Minister or any other Minister for continuing in office during any period during which the Provincial Assembly stands dissolved, or as preventing the appointment of any person as Chief Minister or other Minister during any such period." Here it may be pointed out that before 20th day of March, 1988, the Governor had the authority to appoint from amongst the members of a Provincial Assembly, "Chief Minister", who in his opinion was likely to command the confidence of majority of the members of the Provincial Assembly, but under Article 130(2‑A) of the Constitution now the Governor shall invite the member of the Provincial Assembly to be the Chief Minister, who commands the confidence of the majority of the members of the Provincial Assembly, as ascertained in the session of Assembly convened for said purpose.

11. First we would dispose of the legal objections about jurisdiction of this Court. It is contended by the learned Attorney‑General, Mr. Advocate‑General and Mr. Sirajul Haq, Advocate that once the Speaker has given a Certificate that respondent No.5 has got majority, the Court cannot inquire into its validity. Learned Attorney‑General has referred to Article 69(1) of the Constitution, which provides that validity of any proceedings in Majlis‑e‑Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. By virtue of Article 127 of the Constitution, the provisions of Article 69 of the Constitution have been made applicable in relation to a Provincial Assembly. Under rule 197(4) of the Assembly Rules, the result of voting shall not be challenged. Similarly, under rule 200 of the Assembly Rules, the validity of the proceedings in Assembly shall not be questioned in any Court or Tribunal. Reliance has also been placed on the case of (i) Pakistan v. (1) Ahmed Saeed Kirmani, (2) Ch. Fazal Elahi, (3) Secretary, West Pakistan Legislative Assembly, (4) Mumtaz Hussain Qazilbash, reported in P L D 1958 S C (Pak.) page 397 (at pages 408, 413, 414 and 418); (ii) Fauji Foundation and another v . Shamimur Rehman, reported in P L D 1983 S C page 457 (at pages 545 and 546); (iii) 1884 Appeal Cases Bredlay v. Caset and (iv) A.M. Khan Leghari, C.S.P. Member, Board of Revenue, West Pakistan v. (1) Government of Pakistan through Secretary to Government of Pakistan Establishment Division, Rawalpindi, (2) Speaker, National Assembly, Rawalpindi Cantt., (3) Election Commission, Pakistan through its Secretary at Rawalpindi Cantt And (4) Abdul Ghafoor Khan, Colonel Nawabzada, Hoti‑Mardan (West Pakistan) and 34 others, reported in P L D 1967 Lah. page 227 and (iv) Comments of Mr. A. K. Brohi, in his Book "Fundamental Law of Pakistan" pages 18/19 and 128 to

130. In the present case, neither the validity of Certificate issued by the Speaker is under challenge, nor the proceedings conducted in A the Assembly have been assailed. Under Article 69 of the Constitution, the jurisdiction is ousted only in respect of the irregularity of procedure, but where the interpretation of Constitutional instrument is involved, the jurisdiction is unaffected. Basic question, which needs interpretation is the word "majority" as used in Article 130(2‑A) of the Constitution. If on admitted facts, the respondent No.5 did not procure majority votes, then by no stretch of legal acumen, it can be urged that jurisdiction of this Court is ousted from determining this Constitutional dilemma. Interpretation of written Constitution or ordinary Statute is the exclusive jurisdiction of the Courts and the Court has to interpret the Provisions of the Constitution as held in the case of (i) Miss Asma Jilani v. The Government of the Punjab and another, reported in P L D 1972 S C page 139; (ii) The State v. Zia‑ur‑Rehman and others, reported in P L D 1973 S C page 49 and (iii) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar, reported in PLD 1989 SC (January Part), page

26. The word "majority" as used in Article 130(2‑A) of the Constitution has to be interpreted by this) Court and if it differs from the definition of the Speaker, this Court has jurisdiction to exercise its discretion. Mr. S.M. Zafar, referred to the saying of an American Jurist that "the words of the Constitution are empty vessels into which, the Judges pour everything which they like". Bare perusal of Article 130(2‑A) of the Constitution clearly indicates that Chief Minister must command the confidence of the majority of the members of the Provincial Assembly. The contention that the majority of the members would be interpreted as majority of the members present and voting, is contrary to the plain language of the Article. "Session" according to rule 2(w) of the rules and Procedure and Conduct of Business of Provincial Assembly of Baluchistan, means the period commencing on the day of the first meeting of the Assembly having been summoned and ending on day the Assembly is prorogued. In Article 130(2‑A) of the Constitution, "Session" is to be read with the words "for the purpose". It means a session summoned for the purpose of election of Chief Minister. By no canon of interpretation, a can be' urged that "majority of members" in this sub‑Article means, members present and voting. In order to elucidate this point, it would be necessary to refer to the other Articles of the Constitution. Article 55(1) of the Constitution contemplates that "subject to the Constitution, all decisions of the National Assembly shall be taken by majority of the members present and voting". The opening words admit of no ambiguity and wherever the Constitution has mentioned any other mode of counting, then such method would obviously hold the field. In the instant case, in Article 130(2‑A) of the Constitution, the words "majority of the members of the Provincial Assembly" have been specifically used and no departure can be made to interpret these words in any other mode or method. Article 55(1) of the Constitution is made applicable to Provincial Assembly by Article 127 of the Constitution. Herein below are the Articles, where variety of procedure for determining majority has been mentioned:‑‑ (i) Article 72(4) Subject to the Constitution all decisions at a joint sitting 'shall be taken by the votes of the majority of the members present and voting. (ii) Article 75(2) Where the President returns the Bill to Parliament it can be passed by the votes of the majority of the members of both Houses present and voting. (iii) Article 116(3) Where the Governor returns a Bill to the Provincial Assembly it can be passed by the majority of the members of the Provincial Assembly, present and voting. (iv) Article 53(1) Election of Speaker and Deputy Speaker of National Assembly. (v) Article 60(1) Election of Chairman and Deputy Chairman of Senate. (vi) Article 108 Election of Speaker and Deputy Speaker of Provincial Assembly. (vii) Article 41(3) President's election. (viii) Article 51(5) Election of women members of National Assembly on the basis of proportional representation. (ix) Article 47(2) Notice to impeach President may be given by "not less than one‑half of the total membership of either House". (x) Article 47(8) Resolution of impeachment of President by "two‑third of the total membership of Majlis -e‑Shoora (Parliament). (xi) Article 53(7)(c) Speaker or Deputy Speaker removed by "votes of the majority of the total membership of the Assembly". (xiii) Article 95(1) P.M./C.M. Resolution for vote of no Article 136(1) confidence moved by "twenty percentum of the ‑total membership". (xiv) Article 95(4) P. M. /C. M. Resolution of no‑confidence moved Article 136(1) by "majority of the total membership". The position is quite clear; where the Constitution has required that the majority of members present shall vote, it has in clear and unequivocal terms expressed its intention. The Constitution in Article 130(2) and 130(2‑A) has used a language different to that of Article 55, therefore, this Court has to interpret this Article accordingly, Article 55 is general provision and will have no application to the situation where the Constitution has provided another mode or method. The words used in Article 130(2‑A) are to be read together with the 1 words which immediately follow them. In sub‑Article (2‑A), a change has been made. The words "in session" do not curtail the required majority. Article 55 of the Constitution is applicable to all other Articles which provide for a different method of decision‑making, but will not apply to constitutional amendment under Article

239. Article 130(2‑A) of the Constitution incorporates the conventions, whereas its sub‑clause(2) deviates from conventions. When legislature uses a different terminology, it would obviously result in changing the meaning thereof. (See Maxwell on the Interpretation of Statutes, 12th Edition, page 288, (ii) Raja Maula Dad Khan. Advocate v. West Pakistan Bar. Council, Lahore and another, reported in PLD 1975 SC page 469/475(A) and (iii) The State v. Zia‑ur‑Rehman and others, reported in P L D 19'73 S C page 49). In the instant case, admittedly, Mr. Zafarullah Khan Jamali, had not obtained the majority votes, therefore, it was obligatory upon him to have obtained the vote of confidence from the Provincial Assembly within 60 days as provided in Article 130(3) of the Constitution, which he has not done in the present case. He had only been ascertained as the person to be the Chief Minister in the proceedings of the afternoon session of 2nd December, 1988 but he was required to get a vote of confidence under Article 130(3) of the Constitution. Chief Minister must command the largest support in the Assembly is implicit in Article 130(2‑A) and (3) of the Constitution. In the case of., Attorney‑General for New South Wales and others v . Thethowan and others, reported in J.C. (1932) (Privy Council), page 526, it was held as under:‑‑ "The Constitution Act, 1902, enacted by the Legislature of New South Wales, Was amended in 1929 by adding S.7‑A, which provided that‑ no Bill for abolishing the Legislative Council should be presented to the Governor for High Majesty's assent until it had been approved by a 'majority of the electors voting upon a submission to them made in accordance with the section; and that the same provision was to apply to a Bill to repeal the section." He was declared; as a Chief Minister, as certified by the Speaker, yet in view of the Constitutional disability, he could not exercise the authority to advise for the dissolution of the Provincial Assembly under Article 112 of the Constitution.

12. Learned Attorney‑General, while interpreting Article 112 of the Constitution, contended that there is a departure ‑ from normal practice and. two situations have been provided for. One of mandatory nature and the other is discretionary in the matter of dissolution of Assembly by the Governor. There is no cavil with this proposition. He further submitted that in clause (1), the word "shall" has been used leaving no scope at all, for the Governor to think of any other option. It is self‑operative provision of the' Constitution. According to him, not only no discretion has been given to the Governor, but even if he does not dissolve the Assembly within 48 hours, it shall automatically stand dissolved. But the paramount point for consideration is whether a Chief Minister who had not obtained a vote of confidence, as stipulated .in .Article 130(3) of the Constitution, could at all tender an advice to the Governor for the dissolution of the Assembly. We are dealing with a particular, situation where a Chief Minister had not obtained a vote of majority of the members present in the session of the Assembly, called under Article 130(2‑A) of the Constitution, which is clearly a mandatory requirement. Redundancy cannot be attached to a provision of Constitution and its every part is to be interpreted in a way as to be in complete agreement with other provisions of the Constitution. Construction of the Constitution must be made which is harmonious, just and fair. An Article must receive a construction which is beneficial to the widest and maximum extent. In the case of Muhammad Nnnr Hussain v The Province of East Pakistan and others, reported in PLD 1959 SC (Pak.) page 470, it was held that "it is well recognized that in interpreting a provision of the Constitution, the widest construction possible in its context should be given according to the ordinary meaning of the words used and that each general word should be held to extend to all ancillary and subsidiary matters. " In the situation with which we are confronted, it would be valid interpretation that unless a Chief Minister has sought vote of confidence under Article 130(3) of the Constitution, he cannot ask the Governor for the dissolution of the Assembly.

13. It is canvassed at the Bar from the side of respondents that the Governor had no option but to accept the advice of the Chief Minister. Learned Attorney‑General of Pakistan contended that no consequences would flow, if the vote of .confidence has not been taken under Article 130(3) of the Constitution and the Chief Minister would continue to be the Chief Minister irrespective of the fact that he had not taken the vote of confidence. However, learned Attorney General stated that in case the Chief Minister has not obtained the vote of confidence as provided under Article 130(3) of the Constitution, the Governor may call upon him to take such vote of confidence. We entirely agree with the contention of the learned Attorney‑General, because under Article 130(5) of the Constitution, the Chief Minister shall hold office during the. pleasure of the Governor, but the Governor shall not exercise his power under this clause unless he is satisfied that the Chief Minister does not command the confidence of the members of the Provincial Assembly. In which case, he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. In the present case, admittedly, respondent No.5, had not obtained a vote cf confidence under Article 130(3) of the Constitution, therefore, it was a constitutional duty of the Governor that before accepting his advice for the dissolution of the Assembly, he should have asked the Chief Minister to obtain a vote of confidence from the Assembly. No doubt, under Article 105 of the Constitution, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister, but .this is subject to the Constitution and the Constitution clearly provides that the Chief Minister shall obtain a vote of confidence under Article 130(2‑A) and (3) of the Constitution. In view of legal infirmity as Mr. Jamali's title was under cloud, the Governor could have exercised his power under Article 131(c) of the Constitution for consideration of the Cabinet.

14. Much emphasis has been made on the word "shall" mentioned in Article 112(1) of the Constitution, but as stated above, the Governor will exercise this power only when the Chief Minister is properly and legally appointed /invited in accordance with the provisions of the Constitution. On behalf of the petitioners, it is contended that a Chief Minister who has not obtained a vote of confidence is also deemed to be included in the explanation. On the other hand, learned counsel for the respondents submitted that if intention of law‑makers was to include such Chief Minister in the explanation, they would have stated so in clear terms. Since there is no mention of sudh Chief Minister, the explanation cannot be extended to include such Chief Minister, who had not obtained a vote of confidence from the Provincial Assembly. We agree with the contention propounded by the learned counsel for the respondents. Learned Attorney‑General has also supported the respondents' counsel on this point. The explanation is complete and cannot be given an extended meaning, even by "strained construction". Framers of the Constitution have expressed their will in clear terms and new words cannot be imported into the explanation. However, the provisions of Article 112 of the Constitution, would make it clear that it deals with a Chief Minister who had already obtained vote of confidence, as required under. Article 130(2‑A) and (3) of the Constitution. Reference to the Chief Minister in this Article is to a person who has been constitutionally appointed after complying with the. constitutional provisions of the Article. In fact, a bar has been created by the explanation so as to exclude a Chief Minister against whom a notice of resolution for a vote of no‑confidence has been given or against whom a resolution for a vote of no‑confidence has been passed. A Chief Minister against whom notice of resolution for a vote of no‑confidence has been given, does not lose the status of Chief Minister, unless a resolution of no‑confidence has been passed against him. He would exercise all the powers of a Chief Minister up to the time he holds the said office. He is only debarred to advise the dissolution of the Assembly on the ground that he is himself under shadow. In the same way, unless a Chief Minister seeks a vote of confidence .from .majority members of Assembly, he cannot advise the Governor to dissolve the Provincial Assembly. Therefore, in our opinion, he was not a Chief Minister within the meaning of Article 112 of the Constitution, unless he had validly obtained a vote of confidence. Such interpretation would be logical and coherent, and there would also be no violence‑to the provisions of the Constitution.

15. Under Article 107 of the Constitution, duration of a Provincial Assembly is five years. Therefore, dissolution of a Provincial Assembly before its constitutional period must be justified on the definite reasons provided by the Constitution. Election is a cumbersome job. A lot of expenditure is involved. Entire Government machinery is geared up to complete the election process, therefore, extraordinary powers of dissolution of Assembly, must be exercised carefully, faithfully and in accordance with the provisions of the Constitution. According to their admissions, the Chief Minister had no clear majority except with the casting vote of Speaker. In such circumstances, Constitution properly demanded that advice of such Chief Minister should have been weighed with caution and sanctity of basic charter should have been maintained. An Assembly is an important organ of the State and every effort should have been explored which is possible under the law to save the Assembly from dissolution. The Governor has not exercised his power under the Constitution, as 48 hours were evidently at his disposal. Therefore, before taking this extreme action, the Chief Minister ought to have been advised to seek vote of confidence before his advice was accepted. We have come to the conclusion that a Chief Minister who has not obtained vote of confidence from majority members of an Assembly cannot advise the Governor to dissolve the Assembly under Article 112(1) of the Constitution.

16. It is argued by the learned counsel for the respondents that the Governor shall not be answerable to any Court for the exercise of power and performance of functions as laid down in Article 248 of the Constitution; but this provision does not restrict the right of any person to bring appropriate proceedings against the Federation or a Province. The purpose of Article 248 of the, Constitution is to save the person of Governor being involved in litigation, but the jurisdiction of the Court is not ousted and an action of the Governor, if unwarranted by law, can certainly be challenged in a Court of law. There cannot be two opinions on this point as it is well recognized that any infringement of legal right of an aggrieved person can be brought to the Court for redressing his grievance and the indemnity clause does not save illegal acts.

17. It is contended that political questions cannot be settled by the Courts. No doubt, ,pure political questions cannot be agitated before the Courts, but where the rights of the parties are affected, and the actions of the functionaries of the State are challenged, being violative of the provisions of the Constitution or law, then the Courts must decide such questions. In the present case, it cannot be urged that it is a pure political question. In fact, it involves the dissolution of Assembly which has been elected by the electorates of the Province after going through the election process. A vested right has accrued to the members of the Provincial Assembly, as well as the electorates. There is erosion of their civil rights. An important organ of the State was demolished, therefore, it does not constitute a pure political question. In the case of Khawaja Muhammad Sharif v. Federation of Pakistan through.‑.. Secretary, Cabinet Division, Government of Pakistan, Islamabad and 18 others, reported in P L D 1988 Lah. page 725, at page 938, it has been observed as follows:‑ "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. 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." In the case of State of Rajasthan and others v . Union of India, reported in A I R 1977 S C page 1361, in para. 29 at page 1376, it has been observed as under:‑‑ "

29. The choice between a dissolution and re‑election or a retention of the same membership of the legislature or the Government for a certain period could be matters of political expediency and strategy under a democratic system. Under our system, quest of political power, through formation of several political parties, with different socio‑economic policies and programmes and ideologies, is legal. Hence, it cannot be said that a mere attempt to get more political power for a party, as a means of pursuing the programme of that party, as opposed to that of other parties, is constitutionally prohibited or per se illegal. There may be moral or even political objections to such‑. courses in certain circumstances. It may be urged that State should be permitted to function undisturbed by any directions or advice by the Union Government despite their differences with it on matters of socio‑economic or political policy or complexion. Rights were asserted, on behalf of State legislators, as though they were legal rights to continue as legislators until the expiry of the constitutionally fixed spans of lives of their legislatures, barring cases of earlier 'dissolution. We are only‑ concerned here with legal rights to dissolve and legal obstacles to such dissolution." In the same case, in para. 143 at page 1413, it has been further elaborated by the Court as under:‑‑ It will, therefore, be seen that merely. because a question has a political colour, the Court cannot fold its hand in despair and declare 'Judicial hands off.' So long as a question arises whether an authority under the Constitution has acted within the limits 'of it's power or exceeded it, it can certainly be decided by the Court. Indeed it would be its constitutional obligation to do 'so. It is necessary to assert in the clearest terms, particularly in the context of recent. history, that the Constitution is Supreme lex,. the paramount law of the land, and there is no department or branch of Government above or beyond it. Every Organ of Government, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of its authority. No one howsoever highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. This Court is the ultimate interpreter of the Constitution and to this Court is assigned the delicate task. of determining what is the power conferred on each branch of Government, whether it is limited, and if s9, what are the limits and whether any action of that branch transgresses such limits. It is for this Court to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law: To quote the words of Mr. Justice Brennan in Baker v. Carr: "Deciding whether a matter has in any measure been committed by the Constitution to another branch of Government or whether the action of that branch exceeds' whatever authority has been committed, is itself a delicate exercise in constitutional interpretation and is a responsibility of this Court as ultimate interpreter of the 'Constitution." In the light of what has been stated above, the contention that proceedings even unconstitutional are unchallengeable in Court of law, seems devoid of merits and we see no force in it.

18. Learned Attorney‑General referred to the case of K.K. Aboo v. Union of India and others, reported in A I R 1965 Kerala page 229, where the Assembly had never been summoned to meet and it was dissolved. It is' contended. that the Assembly could be dissolved even before it is summoned. The Indian precedent is not applicable because under Article '164 of that Constitution, the Chief Minister is appointed by the Governor and in making the appointment, he acts in his sole discretion, but in our Constitution, a Chief Minister has to obtain the vote of confidence before he is called upon to hold the reign of office. Even otherwise, in the cited case; the Governor had made thorough inquiry as to the possibilities of formation of a Constitutional Government in the State before he submitted his report to the President about the .situation concerned. The other case cited by the learned Attorney‑ General is Madan Murari Verma v. Choudhuri Charan Singh and another, reported in A I R 1980 Calcutta, page 95, but in this case also, President had written a letter to Mr. Charan Singh that "I find that you enjoy the support of more .members of Lok Sabah than Mr. Murarji Desai.'I, therefore, call upon you to form a government." It further added "I trust that in accordance with the highest democratic traditions and in the interest of establishing healthy conventions, you would seek a vote of‑ confidence in the Lok Sabha at the earliest possible opportunity." Mr. Charan Singh while advising for the dissolution of the Assembly had also given his reasons in the letter 'addressed to the President, therefore; both, on account of different provisions of Article of the Constitutions and factual position that reasons were given‑ in 'the letter addressed to the President by 'Mr. Charan Singh, the cited cases would not apply to the instant case. The Chief Minister had not given any reasons while tendering his advice to the Governor. Though the advice tendered by a Chief Minister would' not be judged on the touchstone of judicial review, but it .is not clear what reasons prevailed with the Chief Minister in giving such advice: The reasons advanced in support of such advice would naturally promote healthy democratic conventions.

19. It may be pointed out that after the election .of. the Chief Minister, the Assembly was prorogued and it was never summoned for transacting any legislative business. There is no allegation that, the Constitutional machinery had broken and the Assembly could not, function in. accordance with the Constitution. Every citizen is under legal and moral obligation to abide the Constitution:. Here I may., quote Montisquieu who had said, "Tyranny‑ of a Prince in an oligarchy, is ;riot so dangerous to the public welfare as the apathy of .a citizen: in a democracy." The Assembly was dissolved within two weeks of its first session and democratic process was not allowed to function, apparently in an V arbitrary and whimsical manner. An undefendable order cannot be defended. Any deviation from Constitutional path would be dangerous, to the national life. There was no issue for which an appeal to electorate was necessary. Elections were held about a month before dissolution. It has not been‑ stated that fresh mandate from the public was necessary ,so as to justify the hasty action.

20. In all fairness, it would have been better if the directions of the Honourable Supreme Court of Pakistan were followed, which have been recorded in President's Reference No.l of 1988, reported in PLD 1989 S C page 75, which read in the following terms:‑‑ "The question referred under Article 186(1) by the President of Pakistan is answered under Article 186(2) in the terms that the Federal and Provincial Governments can authorise incurring of expenditure out of the Federal and Provincial Consolidated Funds upto one month after the declaration of the results of the General Election of the National and the Provincial Assemblies scheduled for. 16 and 19 November, 1988, respectively.

21. A word about condonation of acts of Mr. Jamali. On N2nd December, 1988, the Provincial Assembly consisted of 44 members. It is undisputed that 21 members including Mr. Jamali himself, expressed the confidence in him. The Speaker exercised his casting vote in favour of respondent No.5. In view of the fact that there were 21 votes in favour of Mr. Jamali and 21 against him, and one member had walked out, technically Mr. Jamali was ascertained to be enjoying confidence of the majority members present in the session. He was thus invited to become Chief Minister; accordingly he took oath of office and performed his functions as Chief Executive of the Province. The Governor could not ignore the Certificate of Speaker. His status as Chief Minister was not challenged on floor of the House by moving vote of no‑confidence. There were negotiations for power by different groups outside the Assembly Chambers. In such circumstances, all legitimate acts performed/done by him, during this period would be condonable on the principle enunciated in the case of Miss Asma Jilani v . The Government of the Punjab and another, reported, in PLD 1372 SC page 139.

22. The next question arises whether a mere declaration without any consequential relief may be granted. It has been stated at the Bar that nowhere in the world dissolved Assemblies have been restored. This is no valid reason to deny an effective relief. Facts of each case may not be identical. Mere declaration would not promote cause of justice. In case, Assembly is not revived, declaration would not solve the purpose. The illegality cannot be allowed to be perpetuated. The revival of Assembly is natural and legal consequence, once the order of dissolution is struck down. The relief for restoration of Assembly flows from the first relief. An important Organ of the State was dissolved. In a parliamentary and federal system, an Assembly is the most important body. People of the Province have expressed their collective will. A wrong has been done without 'any legal justification. It is a matter of constitutional principle that when rights have been transgressed, the remedy must ‑be provided. When a legal injury is caused by reason of violation of any Constitutional right, then a relief which meets the ends of justice cannot be refused. It cannot, therefore, be accepted) a sound principle of jurisprudence that a dissolved Assembly cannot be restored.

23. In the result, we allow these petitions and declare the dissolution of the Provincial Assembly as un‑Constitutional, without lawful authority and of no legal effect. As a consequence thereof, the Baluchistan Assembly is restored. There shall, however, be no orders as to cost. M.B.A./319/Q Petition allowed.