h1

P L D 1991 KARACHI 1

KHALID MALIK AND OTHERS

V/S

FEDERATION OF PAKISTAN AND OTHERS


PER Saeeduzzaman Siddiqui, Act. CJ

(a) Constitution of Pakistan  (1973), Articles 58, 199 & 97:

Articles 58(2(b) & 199 — Dissolution of National Assembly by the President — While exercising power undr Article 58(2)(b) President has to first form opinion objectively with regard to preconditions mentioned in article 58(2)(b) of the Constitution — President, after having formed such an opinion, is free to exercise his discretion one way or the other, namely, either to dissolve the Assembly or refuse to dissolve it — Whether process of opinion forming by the President is objective one — Test — While discretion so vested in the President under Article 58(2)(b) of the Constitution may not be controlled by the superior Courts in exercise of the power of judicial review enjoyed by the Superior Courts under the Constitution — Role of Courts while exercising powers of judicial review in such cases stated. — [Judicial review]

While exercising power under Article 58(2)(b) of the Constitution the President has to first form opinion objectively with regard to the preconditions mentioned in the said Article namely “that a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and that an appeal to electorate is necessary”. And after having formed such an opinion the President is free to exercise his discretion oine way or other, namely, either to dissolve the Assembly or refuse to dissolve it. While the discretion so vested in the President under the above provision of law may not be controlled by the superior Courts in exercise of the power of judicial review, the process of opinion forming by the President in such a case, is subject to the powers of judicial review enjoyed by the superior Courts under the Constitution. The Courts, however, while exercising these powers of judicial review in such cases cannot assume the role of an appellate Court or an auhority superior to President. The Court in exercise of its power of judicial review will confine itself to the consideration that the grounds stated by the President in his order under review, bore reasonable nexus to the preconditions prescribed under Article 58(2)(b) of the Constitution and that there is some material to support the grounds stated by the President in his order. The test is that the process of opinion forming by the President is an objective one, the Courts can objectively analyse the material placed before them to find out if the same established reasonable nexus between the grounds stated by the President in his order qua the preconditions of Article 58(2)(b) of the Constitution. The Courts, therefore, necessarily refrain from entering into any enquiry as to the correctness of the grounds mentioned in the order of the President and will accept the same on the face value and thereupon proceed to examine whether these grounds bore any reasonable nexus to the preconditions mentioned in Article 58(2)(b) of the Constitution and that there existed any material in support thereof or not. If the Court finds answers to these questions in the affirmative, it will uphold the order of
President or otherwise it will stike down same as unconstitutional. [p.34]A

F.A. KHAN AV. GOVERNMENT OF PAKISTAN PLD 1964 SC 520. Ref.

Article 199(b)(i) — Scope of — Judicial review of a discretionary action of an executive authority is substantially different than that of a person who is in detention and is brought before the High Court. — [Judicial review]

When a person who is in detention is brought before the High Court, the Court has to satisfy itself with regard to the lawful manner of the detention of such person and if the Court finds that the detention is not lawful, it forthwith sets him at liberty striking down the detention. However, the scope of  judicial review of a discretionary action of an executive authority is substantially different. The Court in the latter case cannot substitute its own satisfaction for the satisfaction of the executive authority. [p.41]C

STATE OF MAHARASHTERA V. B.K.TAKKAMORE AIR 1967 SC 1353. Ref.

GOVERNMENT OF WEST PAKISTAN V. HAIDER BUX JATOI AND OTHERS
PLD 1969 SC 210; DR. RAM AKRISHAN BHARDWAJ V. THE STATE OF DELHI AND OTHERS AIR 1953 SC 318; KESHAV TALPADA V. EMPEROR AIR 1943 FC 1; HASSAN NASIR V. THE CROWN PLD 1953 SINDH 37; DHIRAJLAL GIRDHARILAL V. COMMISSIONER OF INCOME TAX, BOMBAY, AIR 1955 SC 271. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Order of the President dated 6.8.1990 dissolving National Assembly was neither general nor vague in terms — Grounds mentioned in the said Order were not only specific but the particular provisions of the Constitution which had been violated had been pin-pointed. [p.47]E

FEDERATION OF PAKISTAN V. MUHAMMAD SAIFULLAH KHAN PLD 1989 SC 166 Distinguished.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — President could only dissolve the National Assembly when he was of the opinion that either Constitutionala mechanism had broken down or a stalements had occurred which rendered the observance of the provisions of the Constitution impossible or impracticable — Held, in what circumstances it could be said that the Constitutional mechanism had broken down or a stalement had developed or a deadlock had taken place was difficult to define with precision and exactness as that would depend on the facts and circumstances in a given case and their resultant effects on the facts and circumstances in a given case and their resultant effects on the working of the Government of Federation — Courts would make no attempt to lay down any definite parameter in that regard as it might amount to encroachment upon, and whittling down of the discretion of the President vested under Article 58(2)(b) of the Constitution. [Judicial review] (p.48)F

FEDERATION OF PAKISTAN V. MUHAMMAD SAIFULLAH KHAN PLD 1989 SC
166. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — Statement of facts by the President with regard to failure of National Assembly as a legislative body, scandalous horse-trading anmd political stock exchange; conflict betwen the Federal Government and the two Governments of Provinces; non-convening of meeting of Council of Common Interests and National Finance Commission; total failure of law and order situation in one of the Provinces; unabated defection of members of National Assembly from the parties on whose tickets they were elected in the Assembly were the situations which spoke for themselves and was a judgment on political issues by the highest executive authority of the country and could not form the subject of judicial review before the Court. [Judicial review] (p.52)G

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — Scope — Grounds of horse-trading and corrupt practices of the house stated by the President in his order of dissolution of National Assembly dasted 6.8.1990 found full support from the material on record and bore reasonable nexus to the conditions prescribed under Article 58(2)(b) of the Constitution. [p.53]J

Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial review — Government of Federation not only avoided the convening of the meeting of “Council of Common Interests” and “National Finance Commission” and showed no respect to the wishes of Provinces, Senate and the President in that regard — Such attitude on the part of the Government of Federation, Held, clearly amounted to violation of the Constitutional arrangement of the working of the Federation, which led to extreme bitterness between the Federal and Provincial Governments — President, therefore, was justified in concluding that a situation had arisen in which the Government of Federation could not be carried on in accordance with the provisions of the Constitution.[p.57]L

(per Saeeduzzaman Siddiqui, Act. CJ)

Articles 58(2)(b) & 97 — Dissolution of National Assembly by the President — People’s Works Programme launched by Federal Government was meant for rural development including the provision of electricity, water, small industries, construction of farm to market roads and these subjects were Provincial subjects which should have been left for implementation through the agencies of Provinces — Extreme resentment and protests were shown by the Provincial Governments over the implementation of People’s Works Programme in their respective Province through the Agency of Federation — People’s Works Programme, in the absence of appropriate legislation thus could not be undertaken by the Federal Government — President while describing launching of the People’s Works Programme by the Federal Government as a contravention of the Constitutionala provisions was not unjustified. [pp. 57-58]M,N & O

Article 58(2)(b) — Dissolution of National Assembly bys the President — Large number of ad-hoc appointments were made by the Federal Government in service of Federation and statutory corporations controlled by it, in flagrant violation of Service Rules and Law — Such action on the part of the Government of Federation thus amounted to erosion of the basic structure of service in the country which could result in far-reaching consequences of adverse nasture on the working of Government in the long run. [p.60]S

Article 58(2)(b) — Dissolution of National Assembly by the President — Existence of any other remedy either under the Constitution or under the law of the land could not fetter the discretionary power of the President under Article 58(2)(b) of the Constitution, if exercise of such power was available in the circumstances of the case. [p.61]V

Articles 58(2)(b) & 199 — Power of the President to dissolve National Assembly — Scope — Situation where a Government cannot be run in accordance with the provisions of the Constitution detailed — Judicial review — Scope — [Judicial review]

Article 58, Constitution of Pakistan (1973) empowers the President to dissolve the National Assembly but it is not unfettered. The preconditions imposed by the Constitution must be satisfied before exercising such power. It is to be exercised sparingly and in extreme circumstances when the Constitutional machinery has paralysed. Article 58 does not only confer a harsh power on the President but it casts a duty on the Government to rule, act and conduct according to the Constitution and law. If the rule of law is respected, patience and tolerance is exhibited; honesty and morality as opposed to corruption, nepotism and favouritism is practised, policy of live and let live others is adopted, all administrative actions are taken in a firm and fair manner and policy of confrontation is avoided, the Constitutional machinery can never be paralysed and no one should have any fear. [p. 103]KKK

Article 58(2)(b) — Term “situation has arisen” — Connotation — Word “arise” — Meaning — Existence of a crisis or situation since long cannot be trated as estoppel jfor exercising power under S.58(2)(b) if it is otherwise justified —
[Words and phrases]

Word “arise” means “to rise up”, “to take rise”, “originate”, “to come into being”. The existence of certain facts unless they lead to the point that Government of Pakistan cannot be run according to Constitution will not be covered by the term used in Article 58(2)(b). But the moment such situation attains magnitude which paralyses the administration and Government cannot be run, Article 58(2)(b) will be attracted. Such situation cannot arise all of a sudden like a fountain. It is like a volcanoi which warms up, simmewrs, jolts, jerks and then blows up. Arising of such a situation is the culminating point of unrest, disturbance, crisis, and problems which may be existing since long without paralysing the Government. Therefore, the existence of a crisis or situation since long cannot be treated as estoppel for exercising power under article 58(2)(b) if it is otherwise justified. [p.70]AA

Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial tests for determining whether Government was run in accordance with the Constitution or the utility and efficacy of National Assembly had been defeated. [p.71]CC

MUHAMMAD SHARIF’S CASE PLD 1988 LAHORE 725; HAJI SAIFULLAH’S CASE PLD 1989 SC 166. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Where out of fear of a Bill being lost the legislative business is blocked in reflects a deadlock, stalemate and suspension in the legislative field spreading despondency, fear and uncertainty in the administration which will amount to failure of very important part of the Constitution machinery. [p.76]II

SAIFULLAH’S CASE KPLD 1989 SC 166;
BASU’S CONSTITUTION OF INDIA VOL. E, P. 343;
MUHAMMAD SHARIF’S CASE PLD 1988 LAHORE 725. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Disregarding a resolution of Senate by the Federal Government, which did not have a binding effect, expressing scorn and disrespect or challenging its legal validity could not by itself be a ground for dissolution of National Assembly — Consequentially it might support other materials but not individually. [p.85]NN

Article 58(2)(b) — Dissolution of National Assembly by the President — Manner in which Federal Government made huge number of appontments to the Civil services, there was likelihood of its being destroyed and criteria for appointment seemed to have been completely ignored to the detriment of the Civil Services of Pakistan — Such action of the Federal Government destroyed the structure of the services and caused anger, anguish, acrimony, dissatisfaction and defiance amongst the services of Pakistan. [p.86]PP

Article 58(2)(b) — Dissolution of National Assembly by the President — People’s Works Programme launched by the Federal Government did not have any legal action as no law was enacted for the implementation of said programme in the Provinces by the Federal Government — Said progamme had been a bone of contention between the Provinces on the one hand and Federal Government on the other as Provinces contended that the programme was an encroachment upon the Provincial autonomy and Provincial subjects which were within their domain — Such programme, therefore, could be termed as waste of Government resources in an unconstitutional manner by the Federation. [pp. 86-87]OO&SS

Article 58(2)(b) — Dissolution of National Assembly by the President — One of the ground in the order of dissolution was corruption and nepotism in the Federal Government, its functionaries and authorities and agencies including the statutory and other corporation. Banks and also in the ranks of holders of representative offices — Facts stated and documents produced prime facie gave the impression of instances of corrupition, favouritism and nepotism — Where corruption was of enormous nature affecting major spheres of life and it was a motivating force in taking major decision and publlic dealings by the Government and administration, it kwould surely have nexus with the order of dissolution of National Assembly — Corruption” — Concept and its effect on society discussed.

The word “corruption” has nowhere been defined but it has diverse meanaings and far-reaching effects on society, Government and people. It is always used in a sense which is completely opposite to honesty, orderliness and actions performed according to law. It covers a wide field and can apply to any colour of influence, to any office, any institution, any forum of public. A person working corruptly acts inconsistently with the official duty, the rights of others and the law governing it with intention to obtain an improper advantage for self or someone else. There are various forms of corruption. One where a person discharges his duty according to law but on certain consideration. His act may be proper and legal but its performance is influenced by extraneous consideration be it monetary, affection or love. The culture of corruption and bride, of late, has embedded in the society to this extent that even routine works which should be done without any approach or consideration are commonly known to be done only on consideration. This bribe culture has plagued the society to this extent that it has become a way of life. [p.87]TT

Article 58(2)(b) — Order of dissolution of National Assembly by the President — Several grounds for dissolution of National Assembly had been stated in the order of the President some of which were directly connected with the Dissolution Order and some were indirectly connected — Held, it was the cumulative effect of all the grounds which had led to an order of dissolution which must be taken for determining its validity. [p.98]DDD

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — An order on the basis of irrelevancy or non-existence of any one of the grounds or reasons can be vitiated provided such grounds and reasons are so intertwined, interlaced and intimately connected with the relevant grounds that they cannot be separated from the other grounds or that one is interdependent upon the other — Such principle, however, is not applicable to detention matters which are considered on completely different footings. [p. 99]EEE

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — If the President had material and basis for forming an opinion that situation had arisen in which the Government could not be run in accordance with the Constitution, then the exercise of discretion could not
be quetioned, especially when an specific allegations of mala fides had been substantiated — [Judicial review] (p. 99)FF

Article 58(2)(b) — Term “appeal” referred to in Article 58(2)(b) of the Constitution sugests reference of the matter to the “higher forum” which is the electorate — Situation contemplated by Article 58(2)(b) of the Constitution is a situation excluding all other avenues but to refer the matter to the electorate for its fresh verdict.

Althoiugh it is difficult to visualise different situation which would attract the provisions of Article 58(2)(b), but suffice it to say that the situatiion cointemplated by Article 58(2)(b) is a situation excluding all other avenues but to refer the matter to the electorate for its fresh verdict. The word “appeal” referred to in clause (b) of Article 58(2) has also a special significnce. The meaning of the word “appeal” is “removal of the cause or a suit from an inferior Court to a superior Judge or Court for re-examination or review”. Accordingly, the term “appeal” referred to in clause (b) of Article 58(2) suggests reference of the matter to the “higher forum”, which, in the
present case, is the electorate. [p.111]NNN

Article 58(2)(b) — Provision of Article 58(2)(b) of the Constitution empowers the President to make an appeal to the electorate where he has formed an opinion as to a situation as contemplated in the said Article. [p.12]OOO

Articles 58(2)(b) & 199 — Discretion to be exercised by the President under Article 58(2)(b) — Extent — Judicial review — Scope — [Judicial review]

Article 58(2)(b) of the Constitution does not vest the President with absolute discretion as is the case with many other Articles in the Constitution, where the discretion with which the President has been vested is absolute and cannot be called in question by the Courts. The discretion to be exercised by the President under Article 58(2)(b) is to be conditioned with his opinion in regard to the existence of the circumstances requiring an appeal to the electorate. The Constitution, therefore, provides a check upon the discretion to be exercised by the President, the intention being that such discretion should not be exercised arbitrarily or unreasonably. The Court, therefore, would have jurisdiction to subject such action to a judicial scrutiny, but the question, whether there was sufficient material before the President to invoke Article 58(2)(b), or on which a just and reasonable opinion could be formed, of course, cannot be examined by the Courts. However, if the Court comes to a conclusion that the President has acted upon grounds which are non-existent, or extraneous, having no nexus to the prerequisites for exercise of the power under Article 58(2)(b), then the Courts can strike down the action as illegal or unconstitutional. [p.115]PPP

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — If the grounds stated in the order of dissolution of National Assembly were distinct and sepasrable or it was clear on the face of the order, which of the grounds were the main grounds on which the opinion of the Authority had been based then the grounds which had no relevance to the preconditions or were insignificant could be ignored by the Court — Court, however,. has to direct its judicial scrutiny to the objectivity of the situation — [Judicial review] (p. 118)OOO

GOVERNMENT OF WEST PAKISTAN V. HAIDER BUX JATOI PLD 1969 SC  210; MAULVI TAMIZUDDIN KHAN V. GOVERNOR-GENERAL’S SPECIAL REFERENCE NO. 1 OF 1955 PLD 1955 FC 435; MOULVI MUHAMMAD ALI V. CROWN PLD 1950 FC 1; RAFIQUE AHMED SHEIKH V. CROWN PLD 1951 LAHORE 17; THE STATE OF MARASHTRA V. BABULAL KIRPARAM TAKKAMORE AIR 1967 SC 1353. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — Provision of Article 58(2)(b) has to be invoked by the President to meet a serious situation and the purpose of the exercise ought not to be defeated merely because oine or some of the grounds in the order of the President were found to be unsustainable.

Article 58(2)(b) of the Constitution is to be invoked by the President to meet a serious situation and the entire purpose of the exercise might be defeated merely becaluse one or some of the grounds in the President’s Order are found to be unsustainable. If a serious situation has arisen requiring an appeal to the electorate, then the action of the President will have to be examined objectively. However, if none of the grounds is found to have nexus with the preconditions for the exercise of such power, the action can then be struck down.[p.118]RRR

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — Scope — Onus would be discharged by the Federation by production of tangible material before the Court to show that the opinion under Article 58(2)(b) of the Constitution had been reasonably and honestly formed.

The Court cannot look into the sufficiency or insufficiency of the grounds or the proof of the Court is not required to hold a separate enquiry into the charges. The standard of proof, in the form of material to support the charges, has to examine is, whether the President has exercised his poweer within the perimeters of the Constitution or the same is in excess of his authority, and in that, the Court must also be satisfied that the action has been taken by the President in good faith and not in a colourable exerise of power. While determining whether the opinion has been honestly or faithfully formed by the President, care must be taken that the Court does not substitute its own opinion for that of the President. Article 58(2)(b) does snot confer any privilege on the President but it imposes a constitutional obligation upon him to act when in his opinion, the Government of the Federation cannot be run in accordance with the Constitution and an appeal to the electorate is necessasry. Consequently, it would be the duty of the Court to explore every possible explanation for the validity of the action and the impugned action would be liable to be struck down only when the grounds upon which it has been taken are found to have no nexus with the preconditions laid down by Article 58(2)(b) of the Constitution either individually or collectively. No doubt, the Courts are under an obligation to guard the Constitution and to preserve its parliamentary democratic character, but in that the Courts will only have to examine whether the opinion has been exercised by the President, keeping in mind the constitutional requirements or he has simply acted on whim or fancy. However, if the action taken by the President is neither found to be in excess of the authority nor it is found to be mala fide, the Courts cannot enquire as to whether the opinion has been correctly formed. The onus would be discharged by the Federation by production of tangible material before the Court to show that the opinion under Article 58(2)(b) has been reasonably and honestly formed. [p.119] SSS

All that is required to examine is, that the grounds stated in the dissolution order have been supported by material and such material must be placed before the Court to determine whether the opinion has been reasonably formed by the President and the consequent discretion has been properly exercised by him. The onus support the grounds with material also lies upon the Federation. [p.121] TTT

Articles 58(2)(b) & 199 — Dissolution of National Assembly by thje President — Judicial review — President had to form an objective opinion and if the President was of the opinion that he had no other choice but to dissolve the National Assembly or that the members of the National assembly were incorrigible, then under the circumstances all that the Court was require to examine was whether the opinion had been honestly and reasonably formed by the President and if it was so formed then the impugned order could be sustained upon this ground as there appeared to be nexus between the same and the preconditions which could attract the provisions of Article 58(2)(b) of the Constitution — Where nothing had been pointed out in that regard which could make it doubtful that the opinion had been reasonably nor honestly formed, impugned order could be sustained on that ground. [p.122]UUU

Article 58(2)(b) — Dissolution of National Assembly by the President — Neither the performance of the National Assembly could be judged on the touchstone of the legislative work disposed of by it nor the President was empowered to do the same — Quantum of the performance of the Government and the degree of its achievements were outside the purview of Article 58(2)(b) of the Constitution — Order of dissolution of Assembly thus could not be sustained upon that ground.[p. 123]VVV

Articles 58(2)(b) & 97 — Dissolution of National Assembly by the President — kPeople’s Works Programme which was launched by Federal government and was purely a welfare programme and fell within the ambit of Fourth Schedule, Concurrent List, Item No.25, did snot tantamount to extension of the authority of the Federation to the Provinces in violation of Article 97 of the Constitution and thus had no nexus with the preconditions required for exercise of powers by the Presidnt udner Article 58(2)(b) of the Constitution especially when the scheme was not in derogation of but in addition to the functions assigned to the Provinces under the Constitution. [p.123]XXX

Article 58(2)(b) — Dissolution of National assembly by the President — Allegations of disrespect by the Federal Government/Prime Minister for judiciary and Senate — Alleged remarks made by Prime Minister though uncalled for could not call for dissolution of National assembly by the President. [p. 124]YYY

Article 58(2)(b) — Dissolution of National Assembly by the President — Alelgation of disrespect by Federal Government/Prime Minister for Judiciary — Judgment given by the Supreme Court was openly criticised with the active connivance of the Federal Government — Superior Judiciary could itself take notice of such contempt, if any — If no notice was taken by the Judiciary itself, same could not call for the dissolution of the Assembly under Article 58(2)(b). [p.124]ZZZ

Article 58(2)(b) — Dissolution of National Assembly by the President — Charges of corruption and nepotism although individually could not be made a ground for dissolution of National Assembly but considered with the circumstances that utility and efficacy of the National Assembly as representative institution elected bythe people under the Constitution, and its mandate, was defeated by internal dissension and frictions, persistent and scandalous horse-trading for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, failure to discharge substantive lkegislative functions other than the adoption of the Finance Bill and that the Assembly had lost the confidence of thepeople, would have nexus with the preconditions laid down for exercise of power under Article 58(2)(b) of the Constitution. [p.124]AAAA

Article 58(2)(b) — Dissolution of National Assembly by the President — National Assembly being the highest representative body reflecting the will and aspirations of the people of Pakistan, provisions of article 58(2)(b) of the Constitution must be strictly construed, keeping in mind the spirit of the Constitution and the provision itself.[p.126]CCCC

Articles 58(2)(b) & 199 — Dissolution of National assembly by the President — Juricial review — Provisions of Article 58(2)(b) have to be interpreted in consonance with the spirit of the Constitution — In case the grounds for dissolution of National Assembly by the President were found to be extraneous or irrelevant to the preconditions laid down in Article 58(2)(b) for the exercise of power thereunder, the action may be struck down by the Court — Such action of the President however, can be sustained if any or some of the grounds upon which the action has been based, are found to be valid. [p.126]DDDD

Articles 58(2)(b) & 199 — Dissolution of National Asembly by the President — Judicial review — Action under Article 58(2)(b) of the Constitution which confers discretionary powers on President would be warranted only when the President was of the opinion that there was no other choice left to him, except to dissolve the National Assembly. [p.126]FFFF

Article 58(2)(b) — Dissolution of National Assembly by the President — Allegation of mala fides — Mere fact that the President after the dissolution of National Assembly did not retain the former Prime Minister as a care-taker Prime Minster could not by itself give rise to an inference that the President
had acted mala fide — President, in his discretion could appoint a new care-taker Prime Minister. [p.129]HHHH

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial review — Scope — Mere fact that Article 58(2)(b) of the Constitution requires holding of elections within 90 days could not grant immunity to the impugned order of the President dissolving the National Assembly if the same was found to have no nexus with the preconditions laid down by Article 58(2)(b) for exercise of such power.

The mere fact that Article 58(2)(b) of the Constitution requires holding of elections within 90 days cannot grant immunity to the impugned order if the same is found to have no nexus with the preconditions laid down by Article 58(2)(b) for exercise of such power. It would also be erroneous to assume that the President undr Article 58(2)(b) acts on behalf of the electorate. The President in fact, exercise his own discretionary power which vests in him under the Constitution and the exercise of such power must be based upon the opinion which may be formed by the President before ordering the dissolution of the National Assembly and making an appeal to the electorate. when any action, which may be taken by an authority empowered to act under a statute, is to be based upon his opinion, the Courts would have power of review in such cases. [p.129]IIII

It is for the President acting under Article 58(2)(b) to form an opinion and not for the Court. Court in the exercise of its Constitutional jurisdiction has only to examine the material and the grounds upon which the opinion of the President has been formed. The Court can neither substitute its own opinion for that of the President nor it is expected to conduct a separate enquiry in respect of each of the grounds. [p.129]JJJJ

Articles 58 & 199 — Power of dissolving National Assembly under Article 58 rests with the Prime Minister as well as the President — Scope of respective powers of the President and the Prime Minister — Judicial review — Constitutions.

Article 58, sub-Article (2)(b) has given upper hand to the President over the Prime Minister and the Assembly in certain circumstances. [p.152]QQQQ

People are the final and supreme arbiter and ultimate sovereign in a democratice State. Hence appeal to be electorate and holding of general elections has always been considered as a welcome and healthy omen. In Article 58 of the Constitution of Pakistan two persons have been given the power of dissolving the Assembly and making an appel to the electorates. The first of them is the Prime Minister, who has unrestricted power of dissolving the National Assembly at his will and making an appeal to the electorate, while the second is the President, who in certain circumstances has been given power to dissolve the National Assembly and appeal to the electorate. When the Constitution gives such power to the President, then it is the duty of Court as a defender of the Constitution to respect the power. Of course there is a duty cast on the Court to satisfy itself that the power has been exercised by the Prime Minister or President in accordance with preconditions prescribed by the Constitutioin. [p.152]RRRR

MUHAMMAD SHARIF V. FEDERATION OF PAKISTAN PLD 1988 LAHORE 725; FEDERATION OF PAKISTAN V. HAJI MUHAMMAD SAIFULLAH KHAN PLD 1989 SC 166 not applicable.

MUHAMMAD ANWAR DURRANI V. PROVINCE OF BALUCHISTAN PLD 1989 QUETTA 25 distinguished.

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