h1

P L D 1992 SC 723

FEDERATION OF PAKISTAN AND OTHERS

V/S

AFTAB AHMED KHAN SHERPAO AND OTHERS


FRAME : 1

Per Shafiur Rahman, J.

(a) Constitution of Pakistan (1973),Article 48,112(2)

The upshot of the above discussion is that the impugned judgment of High Court is a nullity on account of non-observance of mandatory requirement of Order XXVIIA, Rule 1 of the Civil Procedure Code. The Constitution questions touching the Federation examined and decided by the High Court were:-

(i) Whether the President had accorded approval under Article 112(2) of the Constitution, and

(ii) Whether in according the approval, the President obtained and acted on the advice of the Care-taker Prime Minister to satisfy the Constitutional requirement of Article 48 of the Constitution. [p.745]C

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

There was no direct challenged to want of approval by the President nor to the lack of advice of the Care-taker Prime Minister. Yet, the Court proceeded to examine these facts of its own and by raising a doubt interfered with a Constitutional power reserved for the Governor and the President. It being a controverted question of fact could not be so raised nor decided on the material before the Court.[p.746]D

Nasim Hasan Shah, J.

(c) Constitution of Pakistan (1973) Preamble—-

About defection of individual members from their commitment to the electorate, in Khawaja Ahmad Tariq. Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs (Justice Division) and another C.P.L.A. No.628 of 1990(PLD 1992 SC 646) we have made the following remarks:-

“The preamble to our Constitution prescribed that ‘the State shall exercise its powers and authority through the chosen representatives of the people”. Defection of elected members has many vices. In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him so, or he considers it expedient, the only course open to him is to resign, to shed off his representative character which he no longer represents and to fight a re-election. This will take make him honorable, politics clean and clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpness by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the wordly gains. The third is that it destroys the normative moorings of the Constitution of an Islam State. The normative moorings of the Constitution prescribe that “sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by people of Pakistan within the limits prescribed by Him is a sacred trust” and the State is enjoined to “exercise its powers and authority through the chosen representatives of the people”. An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot, on the mandated Constitutional prescription participate in the exercise of State power and Authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but “mockery of the democratic Constitutional process”. The other enumerated evils contained in first ground precede, accompany or follow the defection. That there had been taking defections has not been seriously disputed, nor the fact that the defectors were quite often rewarded disputed, nor the fact that the defectors were quite often rewarded with posts and prizes.”[pp.748,749]E

It was held therein that encouragement of “floor crossing by members of the Assembly will not be in the interest of democratic institutions and the stability of the country”. This problem was then more serious and more appalling in the North-West Frontier Province than elsewhere.[p. 749]F

Per Naimuddin,J.

(d) Constitution of Pakistan (1973) Article 199.
r/w Civil Procedure Code (V of 1908)—-O.XXVIIA, R.1—-

This brings me to the question whether the provisions of Order 27-A, Rule 1, C.P.C., applied to the Constitutional proceedings or not. It is settled by this Court in the case in the of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that the provisions of Code of Civil Procedure apply to such proceedings.[p. 758]L

Ajmal Mian, J.

(e) Constitution of Pakistan (1973), Article 48(5)

It is true that in terms of clause (5) of Article 48 of the Constitution, election of a dissolved Assembly is to take place within 90 days and by the time the controversy as to the legality of an order of dissolving an Assembly can be finally adjudicated upon by this Court, quite considerable period may elapse and the in the meantime the elections may take place and a new Ministry may be inducted. In my humble view, the above difficulty is to be resolved by the law-makers by providing an appropriate provision in the Constitution. Since this Court has held that an order of dissolving an Assembly is justiciable, the question, whether a particular order of dissolving an Assembly is legal or illegal, should be adjudicated upon before holding fresh elections. If a criminal case by virtue of a Constitutional amendment is required to be decided within 30 days by a trial Court or appeal arising therefrom, a provision can be incorporated in the Constitution providing a direct Petition to the Supreme Court against an order of dissolving an Assembly, with the mandate that the same should be decided within 30 days from the date of its presentation, which should be presented within 7 days from the date of dissolution.[p.792]II

Administration of justice—-

I may observe that there is stream of authorities of the Pakistani Superior Court as well as of the Court of foreign jurisdiction laying down that a Court may take judicial notice of the changed situation/circumstances of the case, which may have taken place after the institution of the case and the Court may mould the relief according to the changed situation/circumstances. Suffice to refer to the case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220).[p. 792]JJ

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