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P L D 1992 SC 723

FEDERATION OF PAKISTAN AND OTHERS

V/S

AFTAB AHMAD KHAN SHERPAO AND OTHERS


Frame (2)

Per Naimuddin, J.

(a)Constitution of Pakistan (1973) Article 57,100
r/w Civil Procedure Code (V of 1908)—-O.XXVIIA, R.1—-

It shall be the duty of the Attorney-General to give advice to the Federal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all Courts and tribunals in Pakistan.

The Attorney-General may, by writing under his hand addressed to the President, resign his office.

It will be seen from clause (3) of the above-quoted Article that it is the duty of the Attorney-General to give advice to the Federal Government upon such legal matters and perform such other duties of legal character as may be referred or assigned to him by the Federal Government. It is, therefore, clear that he has to give advice to the Federal Government and, under Article 57of the Constitution, speak in the National Assembly, without voting right, on legal matters including framing and enactment of laws and interpretation thereof, and the Constitution. Besides, under Rule 1 of Order 27-A, C.P.C., the has to appear and advise and assist the Court so that it could have expert Constitutional and legal advice. Therefore, it is made incumbent upon Court to hear him in a case in which substantial question of Constitutional law is involved, before determining such question. But, in such a case a notice to him is not notice to the Federation and vice versa, unless it is so provided by law. He has two capacities: (1) where the Federal Government directs him to appear in case, and carry out instructions, whatever they may be, and (2) as advisor, under the Constitution or law to advice as to the interpretation of Constitution or law. IN the performance of such duty, he is not supposed to act on the advice of the Federation. He has to honestly guide the Federal Government and the Federal Legislature on the question of law. Similarly, he has to advise Courts as to interpretation of Constitutional law pursuant to a notice under Order 27-A, Rule, 1 C.P.C. He cannot be said to have performed his tuty honestly and duly if he does not give his frank opinion on such Constitutional questions. Therefore, counsel representing parties may interpret a provision of Constitution or law in the best interest of their respective clients even if they are Federation of Pakistan or the Province, but, as an Attorney-General or as an Advocate-General, when he gives advice to the Federal Government or speaks in the Parliament or a Court of law, as the case may be, to the best of his ability, independently and in accordance with Constitution.

Therefore, the learned Judges in the High Court, when they say that the Federal has already engaged a counsel to represent them, were unmindful of the duty which is cast on the Attorney-General by law to assistant the Court in reaching a correct decision on a Constitutional question.

It is unfortunate that the High Court being itself cognizant of the fact that the Attorney-General was appearing, on the date of hearing of the Writ Petition No.352 of 1990, in a similar case involving constitutionality of the dissolution of the National Assembly in Lahore High Court, proceeded without waiting for him. We may say that the learned Judges in the High Court have relied on the fact that the Attorney-General had notice of these proceedings but what the law required was that the Court should give notice. It is admitted fact that no such notice was given and, when no notice is issued, it cannot be said that he avoided it. If the Attorney-General was given notice of the petition, calling upon him to appear on the given date, he would have sought accommodation from either Court or arranged his appearance in such a manner that the could appear in both the Courts i.e. Lahore High Court, Lahore and Peshawar High Court, Peshawar. Indeed without such a notice to him, the Court lacked jurisdiction to proceed further in the matter to determine the Constitutional questions.[p. 757]K

(b) Constitution of Pakistan(1973), Article 112(2)(b)

On merits of the case also the appeals are entitled to succeed, for, the grounds on which the dissolution of the Assembly is based are identifiable and have nexus with the powers exercisable under Article 112(2)(b) of the Constitution. Further, I have no reasons to doubt the facts on which the grounds are based.[p.762]P

(c) Constitution of Pakistan(1973), Article 112, 199

I have no doubt that the questions involved in the petition were of Constitution law as the prayer in the writ petition, quoted hereinfore, shows that not only constitutionality of the order of the Governor dated 6-8-1990, was questioned in writ petition, but also the constitutionality of the other steps taken by the governor and the President of Pakistan were sought to be declared illegal. Therefore, interpretation of Constitutional provisions were clearly involved in the writ petition concerning Federation. Even otherwise, it is nobody’s case that the writ petition before the High Court did not involve questions as to the interpretation of Constitution. The High Court indeed decided them.[p. 761]N

Per Nasim Hasan Shah, J. – CONTRA –

I regret, however, that I cannot subscribe to the view of my learned brother S. Rahman, J. that the impugned judgment of the High Court is a nullity on account of non-observance of mandatory requirement of Order XXVIIA, Rule 1 of the C.P.C. On this particular point I am inclined to agree with the view of my learned brother Ajmal Mian, J. that the provisions of Order XXVIIA C.P.C. are neither designed nor intended to control or to obstruct the exercise of the Constitutional jurisdiction by the High Court and that the provisions of this rule require to be interpreted in a manner which should advance the Constitutional remedy rather than to curtail or to enchain it with technicalities. Since, however, on the merits of the case I am satisfied that there was no valid ground for interfering with the order of dissolution dasted 6.8.1990 passed by the Governor I would accept these appeals on merits, rather than on the technical ground of non-compliance with the provisions of OrderXXVIIA, Rule 1 of the C.P.C.[p.750]H

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