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1995 CLC 1225

DR.NAILA REHMAN CHEEMA

V/S

FEDERATION OF PAKISTAN THROUGH SECRETARY CABINET DIVISION ISLAMABAD AN

Per Muhammad Bashir Khan Jehangiri, J.

(a) Constitution of Pakistan(1973), Article. 51 106 & 265.

In re: Mrs. Memoona Sibghat, this Commission has held that the Constitution came into force on 12th April, 1973.We regret to observe with all humility that the commencing day as held in re: Begum Tahira Sultan would be 14-8-1973 and not 12-4-1973.Again in Begum Shireen Bahar Cheems’s case cited above after reviewing plethora of case-law, it was unequivocally held that the commencing day eas 14-8-1973.We are, therefore, clear in our mind that the commencing day of the Constitution is 14-8-1973.[p. 1231]A.

The next proposition falling for determination is whether ten years had elapsed since the commencing day.Again relying on the case of Mrs.Memooona Sibghat cited above, we have no doubt in our mind that the period of ten years had elapsed on 13th August, 1983, therefore, the period during which the Martial Law remained in force in the country i.e. from 5th July, 1977 to 29th December, 1985 could not be excluded because ‘once time for the purpose of Article 51 of the Constitution had started running, it did not stop. [p.1231]B

It is fallacious to argue that the general elections having not been defined only those elections would be taken to be general elections which were held after the completion of their tenure and that the intermediary elections held in consequence of the dissolution of the National Assembly and the Provincial Assemblies, respectively, under Articles 58(2) and 112(2) of the Constitution were not the general elections.We have, therefore, no hesitation to hold that before the general elections in October, 1990, three general elections were held: the first in Mrach, 1977 the second in February, 1985 and the third in November, 1988. [p. 1231]C.

We have, therefore, not been pursuaded to hold that the period of ten years has not elapsed since 14-8-1973.In this context we are fortified, besides the precedents of Lahore High Court cited, by the case of Sharaf Faridi and 3 others v. Federation of Islamic Republic of Pakistan and another (PLD 1989 Karachi 404) wherein it was ruled that period of ten years has already expired since 14-8-1973 which was the commencing day of the Constitution.

Looking from any angle, we are of the considered view that the ‘commencing day’ of the Constitution is 14-8-1973; that for the purposes of Articles 51(4) and 106(4) ibid a period of ten years has already elapsed when it is reckoned form 14-8-1973 and; that the third general election within the contemplation of Article 51(4) and 106(4) of the Constitution was the one held in 1988.

As a sequal to what has been observed above we do not find any substance in this petition and accordingly dismiss it.

For the reasons to be recorded a short order to this effect was passed by us on 9th February, 1995.The present order provides the reasons therefor. [p. 1232]D.

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