h1

P L D 1990 SC 79

HAJI MUHAMMAD SAIFULLAH KHAN

V/S

THE FEDERATION OF PAKISTAN AND OTHERS

Pre Nasim Hasan Shah, J.(a) Constitution of Pakistan (1973), Art.188, 199 & 58(2)–
r/w Supreme Court Rules, 1980, O.XXVI-Civil Procedure Code (V of 1908), O.XLVII,R.1—

The main ground urged by Sh.Shaukat Ali learned counsel for the petitioner, in support of this petition for review , is that after this Court having held that National Assembly coming into existence pursuant to the General Elections of 1985 was illegally dissolved by the President on May 29, 1988, the said National Assembly could not thereafter be restrained from continuing to function till the expiry of its normal term of 5 years, namely, until March 1990; and in doing the Court has committed as error with regard to the nature of the orders it can pass under Article 199 of the Constitution. Accordingly , this is a fit case for review.

We do not agree. It is correct that the Court did find that the order of dissolution passed by the President on May 29,1988was not justified in law because “the prerequisites prescribed for the exercise of the power conferred by Article 58 (2) (b) did not exist ” and, therefore, the order of dissolution did not fall ” within the fourcorners of Article 58 (2) (b) of the Constitution”. However , it refused the further declaration that the said order is of “on legal effect ” and , accordingly, the order of dissolution was allowed to continue and the consequential order for holding of election for a fresh national Assembly endorsed and reinforced. This was a conscious and deliberate decision for which full reason were given in the impugned judgment. The petitioner may or may not agree with those reasons. But where a conscious and deliberate decision has been made with regard to the nature of order which it is empowered to pass under a provision of law (Article 199 in this case ) only , because another view with regard thereto is canvassed cannot and does not constitute a ground for review.[p.81] A & B.

We can not accept this sweeping generalization. At the most, it is a matter of opinion and this can , in no way, affect the basis on which the Court acted while passing the impugned order.[p.82] C.

These questions, we are afraid, do not arise out of the impugned judgment. They were neither raised in Haji Saifullah Khan’s Appeal (C.A.NO.317 of 1988) nor according decided therein.

This plea is also one on which review of the earlier order of this Court cannot be granted. It is merely the petitioner’s interpretation of the impugned order and not a ground on which the said order can be found to suffer from any error or defect.
[p. 82] D & E.
Petition dismissed.

Advocate for the Petitioner:
Sh. Shuakat Ali, Senior Advocate SC and Manzoor Elahi, Advocate-on-record

Nemo for Respondents.

Date of hearing: 15th October, 1989.

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