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P L D 1991 KARACHI 1

KHALID MALIK AND OTHERS

V/S

FEDERATION OF PAKISTAN AND OTHERS


CONSTITUTION OF PAKISTAN (1973), ARTICLES 59, 70 & 45:

Article 45 — read with Article 58(2)(b) – dissolution of National Assembly by the President — Prime Minister granted reprieve to the prisoners under Article 45 of the Constitution which authority could be exercised by the President alone — Such action of the Prime Minister was therefore violation of the Constitution. [p.99]HHHArticle 45 — read with Article 58(2)b) – dissolution of National Assembly by the President – Power to grant pardon, reprieve and respite and to remit, suspend or commute any sentence passed by any Court, Tribunala or other Authority which vested in the President was exercised by the Prime Minister withsout even informing the President — Such action of the Prime Minister thus was in contravention of ARticle 45 of the Constitution. [p.60]T

Articles 59 & 70 – read with Article 58(2)(b) – dissolution of National Assembly by the President – Government of Federation had its reservations and did not accept the Senate which is created under Article 59 of the Constitution and is highest representative body of the country, as legally constituted body and the Senate which alongside National Assembly enjoyed legislative power under Article 70 of the Constitution could not have discharged that function as its very existence was put in doubt by the Federal Government by describing it as an illegal body — President, therefore, was justified to conclude that attitude of the federal government towards Senate was one of contempt and ridicule.

Per Saeeduzman Siddiqui, Acting C.J. –

The President also mentioned in the dissolution order, the attitude of the Federal Government towards the Senate as one of contempt and ridicule. The Senate which is created under Article 59 of the Constitution is the highest representative kbody of the country in which all the four federating units have equal representation. The provisions of Article 59 of the Constitution may be reproduced here to illustrate the importance of this Constitutional institution.

The importance of the Senate can also be judged by the fact that the Chairman of the Senate takes over as the President of the Federation in the event of death or absence of the President from the country. The material produced before us by the Federation shows that on the basis of the resolution of the Senate dated 12.10.1988 a summary was submitted to the Prime Minister by the then Secretary, Ministry of Justice and Parliamentary Affairs. In the aforesaid summary it was stated that in its Resolution dated 12th September, 1988 the Senate had recommended to the Government for extension of usual facilities of VIP to all ex-ministers of Majlis-e-Shoora of Pakistan including the convenient access to the Parliament. It was clearly mentioned in paragraph 5 of the said summary that in case the Government decides to extend such VIP facilities to ex-members of Parliament, it will cover only those members who remained elected members of the National assembly and the Senate since independence and would not include those which were nominated members of Majlis-e-Shoora during 1981 and 1985. The above request of the upper House when conveyed to the Prime Minister was rejected and on page 1 of the summary the Prime Minister described the members of the Senate as “Collaborator of treason”., It is also worth-mentioning that in the case reported as Abdul Mujeeb Pirzada v. Federation of Pakistan PLD 1990 Karachi 9, the then Attorney-General of Pakistan, who appeared as an amicus curiae on Court notice in that case, contended before the Court that the Senate was not legally constituted body. This argument of the learned Attorney-General was adopted on behalf of Federation by the then Deputy Attorney-General. It is, therefore, quite clear that the then Government of Federation had its reservation and did not accept the Senate as legally constituted body. The senate which alongside National Assembly enjoyed legislative power under Article 70 of the Constitution could not have discharged this function as its very existence was put in doubt by the Federal Government by describing it as an illegal body.

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