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P L D 1988 LAHORE 725

KHAWAJA MUHAMMAD SHARIF
V/S
FEDERATION OF PAKISTAN AND OTHERS

(a) Constitution of Pakistan (1973), Articles 112, 130 & 224:

Articles 112(2)(b) & 199 — Dissolution of Provincial assembly by the Governor — Governor in his order of dissolution of Provincial Assembly had given no reason at all, except a bald statement that the “situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution”, he referred neither to
the situation nor to the reasons which led him to form an opinion that “the Government of the Province cannot be carried on in accordance with the Constitution”. In fact the Government of the Province was being carried on normally and there were no abnormal circumstances in the Province — Such order of the Governor, held, was snot sustainable in law — High Court, however, declined to restore the Provincial Assembly or Cabinet. [p.763]O

Articles 130(8), 224, read with Articles 91(8), 105(3) & 48(5)(a)(b) — When National or Provincial Assembly is dissolved the Constitution seeks to maintain the continuity of the parliamentary system.

Where the National or Provincial Assembly is dissolved, the Constitution seeks to maintain the continuity of the system. Where the President dissolve the National Assembly, he is mandatorily bound under Article 48(5) to fix a date, not later than 90 days from the date of such dissolution, for the holding of the general elections to the said assembly and also to appoint
a Caretaker Cabinet. The word “and” between sub-clauses (a) and (b) of clause (5) of Article 48 shows that the fixing of the date of the next general elections and the appointment of the Caretaker cabinet are co-extensive with the dissolution of the National Assembly. Under Article 224(2), when National or a Provincial Assembly is dissolved, a general election to the Assembly is mandatorily to be held within a period of ninety days after the dissolution and the results of the election have to be declared not later than fourteen days after the conclusion of the polls. Articles 48(5)(b) and 224(2), both read together, clearly show that the general election must be held within ninety days of the dissolution of the National Assembly and the dates which is to be fixed must be such which brings about the election within the stated period. Under Article 105(3), where the Governor dissolved a Provincial Assembly, he has to mandatorily
appoint, in his discretion, but with the previous approval of the President, a Caretaker Cabinet. Under Article 91(8), where a National Assembly is dissolved, the Prime Minister or any other Minister or a Minister of the State can be allowed to continue in his office during the period of dissolution, or instead any person can be appointed as Prime Minister or other Minister or as Minister of State during such period. Likewise, under Article 130(8), where a Provincial Assembly is dissolved, the Chief Minister or any other Minister can be allowed to continue in his office during the period of dissolution, or instead any person can be appointed as Chief Minister or other Minister during such period. Article 91(8) and 130(8) thus enable the executive powers to be exercised by the President and the Governor, which can only be exercised with the aid and advice of the Cabinet, for without the Cabinet their actions would be unconstitutional. The appointment of the Prime Minister from amongst Ministers at the Federal level and the Chief Minister from amongst Ministers at the Provincial level is mandatory, for a Cabinet can only be presided over by them and a Cabinet is not legally complete without them. The Cabinet cannot be presided over by the President. the constitutional oaths which the Ministers make before assuming offices also contain a provision by which they are bound not to reveal internal secrets, unless specially permitted by the Prime Minister or the Chief Minister. All these provisions cumulatively show that no sooner the Federal or the Provincial Assembly is dissolved, that Caretaker Cabinets have to be immediately installed, in keeping with the Parliamentary traditions of a Cabinet system of Government, with the Prime Minister or Chief Minister at the head. This is nothing more than an extension of the principle of continued Parliamentary responsibility, which is ingrained in the Parliamentary system. [p.765]Q
Article 112(2)(b) read with Article 58(2)(b) — Dissolution of National Assembly by the President and Provincial Assembly by the Governor — Governments are not compelled to disclose all the reasons they may have when dissolving the Assemblies under Articles 58(2)(b) and 112(2)(b) — Where some prime facie case was made out in the pleadings of the petitioners showing that extraneous reasons were taken into consideration when the
President and Governor took their decisions and the prior approval of the President was not obtained by the Governor, the burden does shift on the Government to furnish affidavits and file relevant material to meet the case of the petitioners. [pp. 775-776]EE & FF
STATE OF RAJHISTAN V. UNION OF INDIA AIR 1977 SC 1360. Ref.

Article 112(2)(b) — Dissolution of Provincial Assembly by the Governor — Circumstances prevalent on the date of dissolution of Provincial Assembly and question of a political issue of a nature facing the province threatening the life of the Provincial Assembly judicially examined — Held, primary basis on which the Provincial Assembly could have been dissolved, namely, that its functional working had become impaired, was not there — Dissolution order being ultra vires and unconstitutional, was void and unsustainable and must be struck down. [p.784]MM
Articles 112 read with Articles 58(2)(b) & 199 — Dissolution of National Assembly the President and Provincial Assembly by the Governor on the stated grounds not sustainable — Prime Minister in the Caretaker Cabinet is essential component — Consequent upon dissolution of the Assemblies, process set in motion in accordance with the provisions of the Constitution and steps taken thereto not to be interpreted and interfered with — Relief for restoration/reinstatement of dissolved Assemblies could not be made despite unsustainability of the order dissolving the
Assemblies and interference was declined and no direction was issued by the Court under Article 199 of the Constitution of Pakistan. [p.801]MMM

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