h1

P L D 1989 QUETTA 25

MUHAMMAD ANWAR DURRANI

V/S

PROVINCE OF BALUCHISTAN AND OTHERS


Per Abdul Qadeer Chaudary, C. J.

(a) Constitution of Pakistan (1973). Art.69, 130(2-A)(3), 69,112, 55, 105, 131(c), 107, 248 & 199—

In the present case, neither the validity of Certificate issued by the Speaker is under challenge, nor the proceedings conducted in the Assembly have been assailed. Under Article 69 of the Constitution, the jurisdiction Assembly have been assailed. Under Article 69 of the Constitutional instrument is involved, the jurisdiction is unaffected. Basic question which needs interpretation is the word “majority” as used in Article 130 (2-A) of the Constitution. If on admitted facts, the respondent No.5 did not procure majority votes, then by this Court is ousted from determining this Constitutional dilemma. [p. 35, 36] A & B.

Redundancy cannot be attached to a provision of Constitution and its every part is to be interpreted in a way as to be in complete agreement with other provisions of the Constitution. Construction of the Constitution must be made which is harmonious, just and fair. An Article must receive a construction which is beneficial to the widest and maximum extent. [p. 38]K.

The position is quite clear; where the Constitution has required that the majority of members present shall vote, it has in clear and unequivocal terms expressed its intention. The Constitution in Article 130(2) and 130(2-A) has used a language different to that of Article 55. Therefore, this Court has to interpret this Article accordingly. Article 55 is general provision and will have no application to the situation where the constitution has provided another mode or method. The words used in Article 130(2-A) are to be read together with the words which immediately follow them. In sub-Article (2-A), a change has been made. The words “in session” do not curtail the required majority. Article 55 of the Constitution is applicable to all other Article which provide for a different method of decision-making, but will not apply to constitutional amendment under Article 239. Article 130(2-A) of the Constitution incorporates the conventions, whereas its sub-clause(2) deviates from conventions. When legislature uses a different terminology, it would obviously result in changing the meaning thereof. [p. 37] F.

In the instant case, admittedly, Mr. Zafarullah Khan Jamali, had not obtained the majority votes, therefore, it was obligatory Assembly within 60 days as provided in Article 130(3) of the Constitution, which he has not done in the present case. He had only been ascertained as the person to be the Chief Minister in the proceedings of the afternoon session of 2nd December, 1988 but he was required to get a vote of confidence under Article 130(3) of the Constitution, Chief Minister must command the largest support in the Assembly is implicit in Article 130(2-A) and (3) of the Constitution. [p. 38] G.

He was declared as a Chief Minister, as certified by the Speaker, yet in view of the Constitutional disability, he could not exercise the authority to advise for the dissolution of the Provincial Assembly under Article 112 of the Constitution. [p. 38] H.

However, learned Attorney-General stated that in case the Chief Minister has not obtained the vote of confidence as provided under Article 130(3) of the Constitution, the Governor may call upon him to take such vote of confidence. We entirely agree with the contention of the learned Attorney-General, because under Article 130(5) of the Constitution, the Chief Minister shall hold officer during the pleasure of the Governor, but the Governor shall not exercise his power under this clause unless he is satisfied that the Chief Minister does not command the confidence of the members of the Provincial Assembly. In which case, he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly. [P. 39] M.

Petition allowed.
Dates of hearing: 19th, 21st, 22nd, 23rd and 24th January, 1989.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: