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1997 SCMR 353

MOHTARMA BENAZIR BHUTTO AND ANOTHER

V/S

PRESIDENT OF PAKISTAN

Per Sajjad Ali Shah, C.J.(a) Constitution of Pakistan (1973), Article 239, PREAMBLE

—Constitution (Eighth Amendment) Act (XVIII of 1985), Preamble— Eighth Amendment to the Constitution has come to stay in the Constitution unless it is amended in the manner prescribed in the Constitution. [p. 357]A

(b) Constitution of Pakistan (1973), Articles 58 & 185

Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art. 58(2)(b) of the Constitution— Grounds—Validity—President under Art. 58(2)(b) of the Constitution of Pakistan (1973), in his discretion can dissolve the National Assembly where he forms opinion on the basis of material before him having nexus with the Dissolution Order and Art. 58(2)(b) of the Constitution that situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary—Once the evil is identified, remedial and corrective measures within the Constitutional framework must follow—Theory of total breakdown of Central machinery as the only ground for dissolution of National Assembly having been rejected in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473, was no more in the field— Contention that the President can invoke Art. 58(2)(b) of the Constitution to dissolve the National Assembly only in such a grave situation in which Martial Law can be imposed as in 1977 and there is complete breakdown of Constitutional machinery, was repelled.

It is not correct to say that the president can invoke Article 58(2)(b) to dissolve the National Assembly only in such a grave situation in which Martial Law can be imposed as in 1977 and there is complete breakdown of Constitutional machinery. Under the said provision, the President in his discretion may dissolve the National Assembly where he forms opinion on the basis of material before him having nexus with the Dissolution Order and Article 58(2)(b), that situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitutional and appeal to the electorate is necessary. [p. 358] B

Once the evil is identified, remedial and corrective measures within the Constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to best of their ability must react as they cannot remain silent spectators. There may be occasion for the exercise of such power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra- Constitutional. The theory of total breakdown of Constitutional machinery as the only ground for dissolution of National Assembly had been rejected in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473. [p. 358] C

(c) Constitution of Pakistan (1973), Article 58

Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art. 58(2)(b) of the Constitution— Material for grounds of Dissolution Order—Requisites, sufficiency, and validity—Not necessary that material produced in support of the grounds of the Dissolution Order in its totality must be present before the President at the time of forming opinion and must be scrutinized by him in detail— Sufficient if there is material having nexus with the order of dissolution and Art. 58(2)(b) of the Constitution before the President after perusal of which he forms his opinion and passes order of dissolution—Nothing is wrong with the production of corroborative or confirmatory material in support of the grounds which has been made available after the date of the order of dissolution. [p. 359] D

(d) Constitution of Pakistan (1973), Article 58

Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art. 58(2)(b) of the Constitution— Grounds—Material for—Newspaper cuttings can be relied upon by the President as material in support of the grounds for dissolution. [p. 359] E

(e) Constitution of Pakistan (1973), Article 58

Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art. 58(2)(b) of the Constitution— Grounds of order of such dissolution and dismissal—Validity—Sufficient material with regard to the ground of extra-judicial killings by the Government had been produced which had been properly and justifiably considered by the President; enough material was produced in support of the ground with regard to the belated implementation of the judgment in the case of appointment of judges which was short of total compliance, the non- implementation of which violated Arts. 190 & 2A of the Constitution of Pakistan; adequate material was produced in favour of the ground of dissolution that the Prime Minister in her speech before the National Assembly had rediculed the judgment of the Supreme Court in the appointment of the Judges case which was also repeatedly telecast and in order to harass the Judges of the Supreme Court, Constitution (Fifteenth Amendment) Bill was introduced in the Parliament for initiating the process of accountability against the Judges by sending the Judges of the superior Courts on forced leave if fifteen per cent. of the members moved a motion against them which Bill ran counter to Art. 209 of the Constitution which was already in existence for taking action against Judges before the body of Supreme Judicial Council; record was also available in favour of the ground of dissolution to show that complete separation of Judiciary from the Executive was being delayed and by law Executive Magistrates were given powers to sentence to imprisonment for three years, which was against the spirit of judgment of the Supreme Court; sufficient material was also available on the record in support of the ground of dissolution showing that under the orders of the Prime Minister telephones of the Judges of the Supreme Court, Leaders of the Political Parties and high ranking military and civil officials were being taped and transcripts sent to the Prime Minister for reading and enough material was produced in support of the ground of the dissolution which covered the subject of corruption, nepotism and violation of rules— Supreme Court, in circumstances, upheld the order of dissolution of National Assembly and dismissal of the Cabinet passed by the President under Art. 58(2)(b) of the Constitution of Pakistan (1973). [pp. 359, 360] F & G

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