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P L D 1991 LAHORE 420

ALI RAZA ASAD ABIDI
V/S
GHULAM ISHAQ KHAN PRESIDENT OF PAKISTAN AND ANOTHER

Per M. Mahboob Ahmad, C.J.

(a) Constitution of Pakistan(1973), Article 41(7)
r/w Interpretation of Art. 41(7)—-Clause (7)—-

Suffice it to observe that while making the above submissions, the learned counsel for the petitioner does not appear to have comprehended the true scope and import of Article 41(7) of the Constitution. The said sub-Article related to a particularized President mentioned by name therein and was only intended to serve a particular situation. It lost all its utility and efficacy with the death of late President General Muhammad Zia-ul-Haq. The said sub-Article in fact for all intents and purpose is inoperative in the circumstances arising from the demise of the late President. The manner in which the learned counsel for the petitioner wants us to read the same would amount to the reading of someone else’s name in place of the General Muhammad Zia-ul-Haq, which defeats the very purpose for which the said sub-Article was added. We are clearly of the view that the application of sub-Article 41 was confined to late General Muhammad Zia-ul-Haq alone and that the said sub-Article being a particularized provisions cannot be interpreted in a manner to make it generally applicable in situations not envisaged by the provisions itself.[p. 424]A

(b) Constitution of Pakistan (1973), Article 41(3) & (7).

From a perusal of sub-Article (3) and sub-Article (7) of Article 41, it also clearly emerges that the President envisaged by the opening words of sub-Article (3) was late General Muhammad Zia-ul-Haq who was mentioned by name in sub-Article (7) and he having ceased to be the President on account of his, demise, his term contemplated by sub-Article (7) came to an end along with his death. Any other interpretation placed on the aforementioned two sub-Articles would not only be against the constitutional intendment but would also nullify the effect of other provisions of the Constitution as would be presently examined, resulting, if allowed, to a complete constitutional chaos.[p.424]B

(c) Constitution of Pakistan (1973), Article 41(7).

In the present case undoubtedly the evident purpose of sub-Article (7) of Article 41 was to provide a term of five years for late General Muhammad Zia-ul-Haq as President notwithstanding the position that he had not been elected in the manner otherwise provided for by the Constitution for election of a President.[p. 425]F

(d) Constitution of Pakistan (1973), Article 49(1) & 41(5)

In the case in hand, after falling of the vacancy on the demise of late General Muhammad Zia-ul-Haq on 16-8-1988, President Ghulam Ishaq Khan assumed the Office of the President by virtue of sub-Article (1) of Article 49. He could hold that Office in view of the position that the National Assembly stood dissolved at the time only up to 30 days of the holding of the general elections to the National Assembly which concluded on 13-11-1988. That being so, the Office of President of Pakistan had of necessity to be filled in through election within 30 days from 13-11-1988.

To hold that notwithstanding that the Office of the President had fallen vacant on 16-8-1988, the election of the President could not be held till 20-4-1990 would tantamount to violence to the constitutional provisions and rendering sub-Article (5) of Article 41 as nugatory. Such an interpretation on all canons of construction of Status is not permissible especially while interpreting constitutional provisions.[p. 425]G

(e) Constitution of Pakistan (1973), Article 41(6), 199.

The above discussion serves also to dispose of the contention raised on bahalf of the petitioner to the effect that the jurisdiction of this Court is not ousted in the matter of challenge to the validity of the election of the President. The said contention is not tenable because of our finding that the questioned election of the President has been validly held. That being so, it follows that the bar contained in sub-Article (6) of Article 41 is squarely applicable to the instant case. [p. 426]J

In the context of this discussion, the validity of the President holding the Office is otherwise also beyond question.

For all the above reasons, this petition has no merit and it is accordingly dismissed.[p.427]N

(f) Constitution of Pakistan (1973), Article 199.

Adverting now to the last contention raised on behalf of the petitioner, it may be observed that there can be no dispute with the proposition that laches would not generally apply in cases of quo warranto but then the Court can also not ignore the application of this principle if the attendant circumstances are such which militate against the bona fides of the petitioner. The election of respondent No.1 to the Office of the President of Pakistan was held on 12th of December, 1988 and in pursuance of that election, respondent No.1 took oath of his Office on 13th of December, 1988 and is performing his functions as President of Pakistan since then. The attempt of the petitioner at such a belated stage to call in question the validity of the said election and as a consequence the validity of the acts of the President, as already observed above, is bound to create confusion and chaos which in national affairs must be avoided as far as possible, especially when no ground exists for holding that the election of the President held on 12th of December, 1988 suffered from any legal infirmity. The circumstances which float manifestly on the surface warranted an explanation from the petitioner about the delay in filing this petition. Nothing at all has been urged today to explain the inordinate delay of 2-1/2 years from the date of questioned election of the President and more than one year even from 20-3-1990, in filing this petition. This is yet another valid basis for refusing to entertain this petition.[p.426,427]K, L.

(g) Constitution of Pakistan (1973), Article 44, 41(7).

Before concluding, we may also observe that the term of Office of the President of Pakistan has been provided for by Article 44 of the Constitution and the same is prescribed therein to be five years from the date the enters upon his Office. This applies equally to the President elected on the occurrence of a vacancy or otherwise as no distinction in this behalf is made in any provision governing the subject. Having held that sub-Article (7) of Article 41 was intended to serve a particular situation relating to a particularized President, the said sub-Article would not detract from the validity of the above view.[p.427]M

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