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P L D 1979 PESHAWAR 23

NASIRULLAH KHAN BABAR
V/S
CHIEF OF THE ARMY STAFF AND ANOTHER

Per Abdul Hakeem Khan, C.J.

(a) Constitution of Pakistan (1973) Articles 41 & 43
r/w: President’s Succession Order (P.O. 13 of 1978) Para 3 read with Laws (Continuance in Force) Order, 1977 [C.M.L.A’s] No.1, para. 2

It has been asserted by the petitioner in paragraph 22(c) of the petition that Chaudhri Fazal Ilahi “the legal President of Pakistan’ residned and thereafter respondent No.1 began to style himself as President of Pakistan, without any legal or Constitutional authority. There is no dispute that respondent No. 1 could not be elected as a Member of the Parliament, so long as he is in the active service, and that Article 43 of the Constitution also created a bar in his way to hold two posts at one and the same time but when we enquired from the learned counsel for the petitioner if there was any person eligible in terms of Article 41 of the Constitution for appointment as President under the Constitution, he had to concede that since the Parliament was not in existence, a person qualified in terms of Article 41 of the Constitution was not available. When we enquired from the learned counsel as to whether after the resignation of Chaudhry Fazal Ilahi as President or in case of the death of the President, the appointment of the President would be necessary, he could hardly dispute the necessity. It should be obvious to one who is conversant with the provisions of the Constitution, without President at the helm of affairs, there will be a big Constitutional void. In the circumstances there can be no two opinions that this void/vacuum had to be supplied. [p. 27] B

The question as to whether persons who are not members of the Parliament could be appointed to the Federal Cabinet inasmuch as Article 92 of the Constitution lays a bar can be disposed of on the short ground that there is no Parliament eversince the proclamation of the 5th day of July, 1977 and the laws (Continuance in Force) Order. When there is no Parliament, evidently a person who is not a Member of the Parliament will have to be appointed. That is altogether a different question as to whether or not Cabinet is a necessity which has to be supplied. [p. 28] G

(b) Constitution of Pakistan (1973) Art. 51 & 222
Read with Electoral Rolls Act (XXI of 1974), S.4 Electoral Rolls (Amendment) Ordinance (XXXIX of 1978), S.3 and Electoral Rolls Order (P.O. NO.6 of 1969)-

It is indeed surprising that it is being assumed in some quarters that the Constitution by itself provided for joint electorate. On going through Articles 51 and 222 of the Constitution again and again, the impression that we have gained is that the Constitution itself is silent is silent about the system of electorate. All that Article 51 of the Constitution provides is that the National Assembly shall consist of 200 Members to be elected from direct and free vote in accordance with law. The expression “law” is significant. So far as Article 222 is concerned, a reference to the same will show that delimitation of constituencies and conduct of elections are matters for which the Parliament is to provide law. [p. 29] H

We are, therefore, clear in our mind that the argument that question of Electorate had been settled by the Constitution is not tenable and that this was a matter within the legislative competency of the Federal Government. So to speak by adoption of separate Electorate not a single word of the Constitutional mandate in this behalf stands violated. [p. 29] J

Advocate for the Petitioner :
Bacha, Bar-at-Law

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