Per Mian Hamid Farooq,J-Constitution of Pakistan (1973) Arts. 89, 248(1) & 199–
Firstly dealing with the contentioin of the learned counsel for the petitioners, qua mala fide of fact and to the question as to whether despite the bar of Article 248(1) of the Constitution, respondents No. 4 and 5 are necessary parties to the present petition.
I have examined the contents of the petitioner to find out as to whether the petitioners have alleged, pleaded or levelled allegation of mala fide of fact qua respondents Nos. 4 and 5, Although no specificmala fide on the part of respondents Nos. 4 and 5 has been pleaded in the present petition, yet paras, wherein petitioners have named respondents nos. 4 and 5 are reproduced below:–
“That the President and the Prime Minster could not countenance the independent and conscience working of the petitioners for long and decided to cut short tenure of the petitioners and removed them by promulgating an Ordinance just two days before the National Assembly Session which was convened for 29th of August, 2005….”
“…..The petitioners performed their duties in the true sprit of their oath to uphold the law and the rules governing their functions. Lt. Gen. Jamshed Gulzar petitioner/Chairman resisted any violation of laws and rules and took up such issue with the Prime Minster or the President as the case may be…”.
‘….The Commission’s annual report for the year 2003 was submtited to the President’s Secretariat on 6-11-2004 with a request by the petitioner/Chairman tobe allowed to present it personally. It was followed by a reminder, dated 3-12-2004 to the Chief of Staff to the President and finally by the last reminder, dated 16-6-2005. The request was never granted. Obviously the President was annoyed with the pettioner/Chairman.”
“….The petitioner/Chairman brought this fact also to the notice of the President through a letter, dated 13-8-2005 to which he did not receive any response.”
“The evidently, the forthright position taken by the petitioners against violations of rules and regulations by the P.M and the President caused promulgation of the amending Ordinance. Mala fides are therefore more than abvious”.
It flows from the above that the petitioners in the petition in hand did not specifically plead any mala fide of fact against respondents nos. 4 and 5 and a few instances quoted in para. 7 of the petition, are directed toweards the Ex. Prime Minister (Mr. Zafar Ullah Khan Jamali). It has simply been stated in para. 10 of the petition, as noted above, that the Chairman took up certain issues, he and other members expressed serious reservations about recruitments of certain Government servants and raised these issues in annual reports. The petitioners have not specifically alleged and pleaded any mala fide of fact agaisnt respondents nos. 4 and 5 in the petition, the petitioners are precluded from agitating the same before this Court during arguments. The petitioners have not even placed on record any material to demonstrate that promulgation of “Amending Ordinance” by the President was due to mala fide of fact. Simply to say that the “amending Ordiniance” was promulgated two days before the Session of the National Assembly is no ground to assume and infer that legislative actin ofthe President was tainted with mala fide of fact.
As noted above, no allegation of mala fide has been levelled and pleaded against respondent nos. 4 and 5. Even othewise, mala fide is one of the most difficult things to prove and onus to prove mala fides is always on the person alleging mala fides.
It may be noted that in the instant case, as held above, even allegations of mala fide has not been made in the petition.
In the instant case neither mala fide hasbeen pleaded nor any proof of whatsoever nature has been adduced to establish the same, therefore, it cannot be argued that respondent no. 4 has promulgated the amending Ordinance with mala fide of fact.
In the above perspective, I am of the view that as no mala fide of fact has been alleged and pleaded aginst respondents nos. 4 and 5, therefore, they are neither necessary nor proper parties to the present proceedings, thus, names of respondents nos. 4 and 5 are deleted from the array of respondents.
In the case in hand, the petitioners have challenged amending Ordinance, promulgated by the President of Pakistan, and Federation of Pakistan, Secretary Establishment Division and Secretary Law Justice and Human Rights have been made party to the present petition. In the presence of the sid persons even on the strength of the case of Abrar Hassan (ibid), protection under Article 248(1) is available to the respondents nos. 4 and 5. Thus, under the circumstnaces, the President and Prime Minster are protected and immunity is available to them on the strength of Article 248(1) of the Constitution. Additionally, the matter in hand can effectually and conclusively be determined in the absence of tose respondents.
Article 89(1) of the Constitution envisages that President may, except when the National Assembly is in session, is satisfied that circumstnaces exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstnaces may require. It flows therefrom that before promulgating Ordinance only President is to be satisfied that circumstnaces do exist for promulgation of an Ordinance. It has been held in the case of Muhammad Rafique (ibid)that “The sole Judge of existence of circumstnace rendering it necessary to take immediate action under Article 89 of the Constitution is the President and it lies within his subjective satisfaction”. Obviously, the president of Pakistan in exercise of powers under the said Article, has promulgated “amending Ordinance”
In the above backdrop, it is held that the President has validly promulgated the “amending Ordinance”; vires whereof cannot be subjected to judicial review; the “amending Ordinance” is not ultra vires of any of the provisions of Constitution; it cannot be assailed on the ground of mala fide; the same is valid piece of legislation and it cannot be struck down.
Petitioners shall file amended petitin, thereby deleting the names of respondents nos. 4 and 5 within a period of fifteen days.
[pp. 431,433,434,436,439] A,B,C,E,F,G,H,I,J & M