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P L D 1993 LAHORE 518

PERVAIZ ELAHI
V/S
PROVINCE OF PUNJAB AND OTHERS

Per M. Mehboob Ahmad, C.J.(a) Constitution of Pakistan (1973), Articles 105(3), 112, 130 & 199

By the aforementioned petition under Art. 199 of the Constitution of Islamic Republic of Pakistan, 1973, the validity of the order passed by the Governor of Punjab on 29th May, 1993 dissolving the Punjab Provincial Assembly on the advice of the Chief Minister of the Province has been called in question on various grounds, inter alia:—

(i) that as a notice of resolution of No-Confidence against the Chief Minister had been delivered to the Secretary of the Assembly, he ceased to be the Chief Minister for the purposes of tendering advice for dissolution of the Provincial Assembly as provided by Explanation to Article 112 of the Constitution;

(ii) that the order of dissolution and the advice tendered are mala fide; and

(iii) that as Mr. Altaf Hussain has not been appointed as the Governor in accordance with the Constitution, he could neither pass the order of dissolution nor could he ask respondent No. 2 to continue as Chief Minister.

The petitioner has also prayed for grant of interim relief in the form of suspension of the impugned order. This petition was admitted to regular hearing on 30th May, 1993. The Hon’ble Chief Justice constituted the present Full Bench for hearing the petition. The arguments on the stay matter were partly heard on that day when the case was adjourned for filing complete petition and the written-statement with the direction that “In the meanwhile no change in the existing position/circumstances shall be made in any manner.”

The respondents controverted the averments made in the writ petition, inter alia pleading that no process can be issued to the Chief Minister, Punjab, in view of the immunity available to him under Article 248 of the Constitution.

It has also been pleaded that—

(i) the notice of resolution of no-confidence apart from being fake having not been given in the Assembly till date as required by Explanation to Article 112 of the Constitution is inconsequential; and

(ii) that the advice tendered by the Chief Minister being in accordance with Constitution is valid in law and not open to scrutiny by this Court.

The allegations of mala fides have also been denied and it has been asserted that the impugned orders were passed bona fide and suffer from no legal or Constitutional infirmity.

The petitioner in his rejoinder reiterated the submissions made in the writ petition and, inter alia, took the plea that the respondents were directly involved in the fabrication of the record to show that the advice of the Chief Minister for dissolution of the Assembly was tendered at 11-35 a.m. while the Chief Minister was in Islamabad at that time. It was also stated that meeting of the Cabinet was held on 29th May 1993 and its deliberations continued till 5 p.m. and as such the question of tendering advice at 11-35 a.m. and dissolution of Assembly at 4 p.m. did not arise. It was also mentioned that two of the Cabinet Ministers and an Advisor tendered resignations which were received by the Private Secretary to the Governor at 17-35 p.m. on 29th May, 1993, which shows that the plea of tendering advice as alleged was false and dissolution of the Assembly at 4 p.m. was incorrect.

The arguments in the main petition were heard on 5-6-1993 and 6-6-1993 when towards the end of the day an application under Order 1, rule 10, Civil Procedure Code (C.M. No. 1177 of 1993) was presented on behalf of the petitioner praying for impleading the Governor as a party.

On this application we directed the learned Acting Advocate-General to obtain instructions from the Governor. In consequence Mr. Abdul Hafiz Pirzada, Advocate, appeared on 7th June, 1993 and presented a written communique from the Governor of Punjab, which is in the following terms:—

“That the Acting Advocate-General Punjab has informed me that an application has been presented on behalf of the petitioner during the proceeding in open Court, after conclusion of arguments of the petitioner’s counsel and substantial arguments from the respondent’s counsel to implead the Governor of Punjab as a respondent on the basis of allegations contained in the said application. I am informed that the learned Court has directed the Acting Advocate-General, Punjab to convey to me the said application and seek my response thereto. The office of the Governor enjoys complete Constitutional immunity from any process of Court. I have taken oath as Governor of the largest and most populous Province of Pakistan to preserve, protect and defend the Constitution. Therefore, by giving up this immunity I shall be violating the provisions of the Constitution which under the oath of my office I am bound to observe. However, I am responding to your Lordship’s communication in deference to and on account of the respect and esteem in which I hold, your august institution.

It has caused me extreme anguish that lawless and unfounded allegations of serious nature have been levelled against me. It has also been brought to my notice that during the proceedings, serious aspersions have beencast on me which have no basis and are completely unproved and unfounded. I categorically refute, deny and controvert the same. I say that on 29th May, 1993 at 11-35 a.m. I received a written advice of the then Chief Minister Punjab, through the then Law Minister Sardar Nasrullah Khan Dreshak, to dissolve forthwith the Provincial Assembly of Punjab. Since this advice was binding on me, I made an endorsement on the advice immediately and recorded the time of receipt of the advice, as at the end of 48 hours the Assembly ipso facto stand dissolved, unless it was dissolved by me sooner than that. In spite of my above reiteration, if this Hon’ble Court calls upon me and so requires, I shall readily and willingly attend the Court and make the same statement on oath.

Before concluding, I would like to draw the Hon’ble Court’s attention to clause (3) of Article 105 of the Constitution of the Islamic Republic of Pakistan, which provides that where the Governor dissolves the Provincial Assembly, he shall appoint in his discretion, and with the previous approval of the President a Care-taker Cabinet. This is not only mandatory but a command of the Constitution which I cannot disobey or ignore. In view of the law declared by the Supreme Court of Pakistan in the case of Haji Saifullah as well as Kh. Ahmad Tariq Rahim, the Governor is under obligation to appoint a care-taker cabinet which as per Article 130 of the Constitution consists of the Chief Minister and Ministers. The Care-taker Chief Minister has no locus standi or relevance in the appointment of the Cabinet. This Hon’ble Court by an interim order of status quo dated 30th May, 1993 has restrained the Chief Minister from forming a cabinet. With utmost respect this order was beyond the jurisdiction and power of this Hon’ble Court particularly as Governor I enjoy Constitutional immunity against process of the Court, and in any case I am not and cannot be made a party to these proceedings. I have to fulfil my Constitutional obligation and appoint the Care-taker Cabinet. I have no doubt whatsoever that this Hon’ble Court did not intend me to violate the mandate and command of the Constitution.”

Mr. Abdul Hafeez Pirzada, Advocate, has urged that in view of the stay order granted by this Court the entire machinery of the Punjab has come to a standstill and the affairs of the Government cannot be run in accordance with the Constitution without a care-taker cabinet.

In view of the stand taken by the Governor in his communique and on the request of Mr. Abdul Hafeez Pirzada, Advocate, we felt persuaded to take up and dispose the matter of stay at this stage. Accordingly, we asked the parties to address arguments on the stay matter which have been heard. Mr. Abdul Hafeez Pirzada, Advocate, the learned counsel for the Governor of the Punjab who is also representing respondent No. 2, referred to various provisions of the Constitution of Islamic Republic of Pakistan to impress the importance of the appointment of a care-taker cabinet when the Assembly stands dissolved. He argued that it is a Constitutional obligation of the Governor to appoint a care-taker cabinet and mere appointment of a Chief Minister or asking the Chief Minister to continue in his office till his successor is appointed, is not warranted. The learned counsel emphasized that in a parliamentary democracy, like Pakistan, the affairs of the Province or the Federation, as the case may be, cannot be run except on the advice and with the aid of a cabinet which is headed by a Chief Minister. He relied upon the authority of the Supreme Court of Pakistan, Federation of Pakistan v. Muhammad Saifullah Khan (PLD 1989 SC 166) to contend that the governance of the Province without a cabinet would be un-Constitutional and as such the Governor cannot be deprived of his Constitutional powers to run the affairs of the Province without aid and advice of the cabinet.

Mr. Khalid Anwar, the learned counsel for the petitioner, pointed out that the direction of the Governor to respondent No. 2 to continue as Chief Minister was un-Constitutional as Article 133 of the Constitution has no applicability when Provincial Assembly stands dissolved. He further argued that the appointment of Mr. Altaf Hussain as Governor of Punjab was neither valid nor Constitutional as he was appointed as Governor by the President in consultation with Mr. Balakh Sher Mazari, the then Care-taker Prime Minister whose appointment has been held to be unlawful by the Supreme Court in Mian Muhammad Nawaz Sharif v. President of Pakistan and others (1993 SCMR 1302). He emphasized that though the Supreme Court of Pakistan had granted validity to the acts performed by the care-taker Government but the validity was of a limited nature and applicable only to acts performed by care-taker Government in accordance with the Constitution. He asserted that the appointment of respondent No. 2 as such did not fall in the ambit of the validation. On these premises it was argued that at present there is neither a Constitutionally appointed Governor nor a validly appointed Chief Minister. He prayed that the operation of the impugned order be suspended as a whole.

In reply, Mr. Abdul Hafeez Pirzada, the learned counsel for the respondents, contended that the suspension of the impugned order as a whole would tantamount to deciding the main petition. He also emphasized that the appointment of the Governor was strictly in accordance with the Constitution and does not suffer from any infirmity whatsoever.

We have given anxious consideration to the arguments addressed by the learned counsel for the parties and are of the view that apart from the position that serious questions involving interpretation of Constitutional provisions and the rules framed thereunder fall for determination in this case, the controversy raised in the writ petition also involves determination of material questions of facts as to whether the advice of the Chief Minister Punjab was prior in time or the alleged notice for no-confidence was given earlier and whether the said notice was an invalid and fake document.

On 30th May, 1993 while passing the interim order directing that no change be made in the existing circumstances, we intended to keep the lis intact so as not to prejudice the right of either of the parties. However, in view of the difficulties expressed by the Governor of Punjab in his communication to this Court as elucidated by Mr. Abdul Hafeez Pirzada, Advocate we feel that in order to facilitate the governance of the Province in accordance with the Constitution, the existence of a cabinet is essential.

We are also not unmindful of the fact that in view of the nature of the arguments being advanced by the learned counsel for the parties and the stance taken by them, it does not appear to be possible to conclude the hearing of the main petition itself within a few days, more so for the reason that Raja Muhammad Anwar, Advocate, the learned counsel for respondent No. 2 has stated that he would like to examine Mr. Manzoor Ahmad Wattoo, Chief Minister, Punjab, and Mr. Nasrulah Dreshak, former Law Minister, Punjab as witnesses and would also like summon Mr. Ghulam Haider Wyne, ex-Chief Minister, Punjab and Mr. Parvez Elahi, leader of Opposition, for the purposes of cross-examination.

Messrs Raja Muhammad Anwar and Abdul Hafeez Pirzada Advocates, have also stated that each one of them would require at least a day to address the Court. Mr. Khalid Anwar, Advocate, the learned counsel for the petitioner too stated that he will take a day or more to conclude his arguments.

As we have issued a notice under Order XXVII-A, C.P.C. to Advocate-General, Punjab, we have to hear him as well. An application for impleading the Governor, Punjab, is also pending before us and the same has also to be decided after hearing the parties.

In view of the foregoing discussion and the circumstances noted above and to ensure that the affairs of the Province of Punjab are run in accordance with the Constitution and that the right of none of the parties is prejudiced, we consider it appropriate to suspend the operation of the impugned order with the result that Cabinet headed by Mr. Manzoor Ahmad Wattoo, respondent No. 2 herein, and the Provincial Assembly, Punjab, shall be entitled to function as immediately before the impugned order was passed.

However, considering the arguments of Mr. Abdul Hafeez Pirzada, Advocate, the suspension of the impugned order may amount to acceptance of the main petition itself, we direct the resolution of no-confidence if passed against respondent No. 2, shall not be given effect in any manner whatsoever till the final decision of this petition.

We further direct that in order to keep the lis intact and to obviate the possibility of prejudice to pleas of any of the parties and to avoid any further complications, neither Mr. Manzoor Ahmad Wattoo, Chief Minister, Punjab, would in the meanwhile tender any fresh advice to dissolve the Provincial Assembly of Punjab nor a fresh a fresh notice of resolution of no-confidence shall be entertained against him. [pp. 520 to 525] A

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