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P L D 1993 LAHORE 595

PERVAIZ ELAHI

V/S

PROVINCE OF PUNJAB AND ANOTHER


Frame (2)
Per M. Mahboob Ahmad, C.J.

(a) Constitution of Pakistan (1973), Articles 105(2), 199, 2A & 62(1)

On the factual plane, both the parties in support of their respective contentions had filed affidavits of various persons, all of whom enjoy position of importance and eminence. At the very outset we must observe with a sense of dismay and anguish that after going through the record and hearing the learned counsel for the parties, the conclusion which became inevitable, was that both the parties had not placed the whole truth before this Court and we have been placed in a great dilemma. [p. 603, 604] B

It cannot be disputed that the controversy raised in this petition is of immense importance for the people of the Province and also for maintaining and upholding democratic process and institutions. Its consequences at national level also cannot be understated. The controversy in fact relates to the very existence of a vital, if not the most important organ of the Province, namely its legislature. In these circumstances, we felt it to be our constitutional and legal duty to find out the true factual position and to make all endeavours for the purpose. The obligation to arrive at the truth in an Islamic State, needs no emphasis, particularly after the inclusion of Article 2-A as a substantive part of the Constitution. We may also point out that Article 62(f) of the Constitution, provides that, “a person shall not be qualified to be elected as a member of the Parliament, unless he is segacious, righteous and non-profligate and honest and ameen”. [p. 604] C

For the various reasons to be given in our detailed judgment which is to follow, we feel compelled to express our deep concern and regret over the serious contradictions and inherent improbabilities in the affidavits filed by the parties and the statements of the deponents and consequently find ourselves unable to place any reliance upon the same and are clearly of view that both the parties have not come out with the whole truth, and unfortunately both of them acted as adversaries in ordinary litigation. [p. 606] D

We are, however, clearly of the view that the advice tendered by the Chief Minister suffers from mala fide in law for the following reasons:—

(i) It was tendered solely to keep himself in power and to forestall any attempt to disclose him.

(ii) The repeated assurances by the Chief Minister even till 28-5-1993 that the Provincial Assembly will not be dissolved.

(iii) There was no issue on which appeal to electorate was necessary so as to curtail the normal constitutional life of the Assembly.

(iv) It did not lie with respondent No. 2 to advice dissolution as a measure of punishment to those who elected him especially when it was with the help of those members that he toppled the leader of the House and became Chief Minister.

(v) The advice appears to have been made with a view to disturb the functioning of a Constitutional organ and the Government machinery as an aftermath of the judgment delivered by the Supreme Court of Pakistan in the case of Mian Muhammad Nawaz Sharif v. The Federation of Pakistan etc. whereby the National Assembly and the Federal Governemnt were restored on 26-5-1993. [p. 607, 608] F
We may now also briefly deal with the contention raised by the learned counsel for the respondents that as the petitioners have not come with clean hands and it had not been established beyond doubt that the case set up in the petition regarding service of notice on the Secretary at 12-00 noon has been proved, we should refrain from exercising our discretionary jurisdiction in favour of the petitioner. The principle which the learned counsel seeks to invoke may be correct but it is equally well-established that in a case where the dispute pertains to enforcement of fundamental and constitutional rights the conduct of the petitioner loses all significance. On our part we have treated these proceedings to be inquisitorial and not adversary in nature, keeping in view the fact that it concerns not only the parties before us but moreso the existence of the Provincial Legislature and its 248 members as also crores of people of the province, who in no case can be penalized or made to suffer on account of conduct of either of the parties. In such a situation, it becomes the obligation as also the duty of this Court to apply the correct law, on the facts found or established. [p. 608] G, H & I

The bar of Article 105(2) in our view does not extend to cases of mala fides as such an act is by its very nature an act wholly without jurisdiction and nullity in the eyes of law incapable of being acted upon nor any right or immunity can be validly based on it. Equally without force is the contention that even though the time on which advice was rendered is not a part of the same, this Court cannot go into the factor of timing. [p. 608]J

We are not impressed with the contention that to advise dissolution of the Assembly is absolute, unfettered and unbridled prerogative of the Chief Minister even if it is mala fide. In law, no right, howsoever high, can be claimed to be absolute, unguided and arbitrary, so as to defeat the purpose of law and Constitution. In an Islamic State the sovereignty belongs to Allah Almighty and is a sacred trust with those to whom it has been entrusted as trustees. They must discharge their functions and exercise their powers within the limits prescribed by Allah Almighty and for the good and welfare of people in accordance with Constitution and the law. The Constitutional provision when read as a whole, lead to indubitable conclusion that any such breach of trust is open to judicial scrutiny, by the superior Courts to that limited extent. [p. 608] K

We are also of the view that the question of advice by the Chief Minister is not purely a political question but is more a constitutional proposition. Even if the question be political the same can validly be examined by this Court being relatable to the rights of those who are to be affected thereby. [p. 609] L

Before parting with this short order, we may observe that we are not unmindful of the position that ordinarily in exercise of constitutional jurisdiction, recording of evidence is not resorted to, but all the same there is neither any specific prohibition in this regard nor it is unusual to resort to this course. It has been held by the Supreme Court of Pakistna in Rahim Shah’s case PLD 1973 SC 24 that evidence can be recorded by the High Court in proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in exceptional circumstances. To our mind there can be no denying the fact that circumstances of this case are highly exceptional and the Court was left with no alternative except to adopt the course of recording evidence. [p. 609] M

In view of what has been stated above, and for reasons to follow in our detailed judgment, we allow this petition and declare that the impugned order of the Govenror of the Punjab dated 29-5-1993, dissolving the Provincial Assembly of Punjab is without lawful authority and of no legal effect, with the result that the Provincial Assembly of Punjab stands restored. [p. 609] N

We may also at this juncture point out that the endorsement made by the Governor would not carry any privilege so as to attract the bar contained in Article 105(2) of the Constitution qua the tendering of advice by the Chief Minister inasmuch as the endorsement does not form part of the advice itself. [p. 627] O

For the same reasons we in our short order dated 28-6-1993 expressed our anguish over the serious contradictions and inherent improbabilities in the affidavits filed by the parties and the statements of the deponents etc. before the Court that we found ourselves unable to place any reliance upon them and are clearly of the view that both the parties have not come out with the whole truth and unfortunately both of them acted as adversaries in the ordinary litigation. [p. 632] Q

We, have in the short order also recorded the conclusion that the advice tendered by the Chief Minister suffers from mala fides for the following reasons:—

(1) It was tendered solely to keep himself in power and to forestall any attempt to dislodge him;

(2) the repeated assurances by the Chief Minister even till 28-5-1993 that the Provincial Assembly will not be dissolved;

(3) there was no issue on which appeal to electorate was necessary so as to curtail the normal constitutional life of the Assembly;

(4) it did not lie with respondent No. 2 to advise dissolution as a measure of punishment to those who elected him especially when it was with the help of those members that he toppled the leader of the House and became Chief Minister;

(5) the advice appears to have been made with a view to disturb the functioning of a constitutional organ and the Government machinery as an aftermath of the judgment delivered by the Supreme Court of Pakistan in the case of Mian Muhammad Nawaz Sharif v. The Federation of Pakistan etc. PLD 1993 SC 473 whereby the National Assembly and the Federal Government were restored on 26-5-1993. [p. 634, 635] R

Be that as it may, whatever be the scope of Article 105(2) of the Constitution, we are clearly of the view that it does not prohibit this Court from finding out as to whether an advice suffers from mala fides as a mala fide act by its very nature is an act without jurisdiction and a nullity in the eyes of law. Neither under the Constitution nor under any civilized system of administration of justice muchless in an Islamic State and polity, like Pakistan, immunity in respect to mala fide acts can be claimed or granted. It is by now well-settled, and has repeatedly been held by the Supreme Court that even in cases, where the Constitutional protection is available to the action of different functionaries the same can be struck down if shown to be mala fide. [p. 643, 644] W

It may be pertinently observed that the determination of the exact time of delivery of notice resolution for vote of no-confidence is not the main thing in issue but the real and crucial question germane to the effectual resolving of the controversy is as to whether the notice had preceded the advice or was the advice tendered before notice was given. This all important aspect has been found by us in favour of the petitioner. [p. 651] Y

An equally important if not more weighty reason for not denying the relief is the nature of ‘lis’ before us. As observed earlier, the dispute concerns the very existence of an important institution i.e. the legislative organ of the Province of the Punjab. The right of the members of the Provincial Assembly to continue as members for the normal tenure of the Assembly is guaranteed by the Constitution has been held by the Supreme Court of Pakistan in Mian Muhammad Nawaz Sharif v. Mr. Ghulam Ishaq Khan and others (Constitutional Petition No. 8 of 1993 = P L D 1993 SC 473) to be a fundamental right. In such a situation strictly speaking the ‘lis’ cannot be treated an inter parties ‘lis’ in the conventional sense but the Court must also examine its impact on the rights of those affected by it directly i.e. the members of the Assembly and the mass of the people of the province irrespective of the fact whether they were before the Court or not. The cases involving infringement of fundamental rights are to be treated at a level different from ordinary litigation involving disputes between two private individuals simpliciter. [p. 651] Z

In an Islamic State like Pakistan where the sovereignty belongs to Almighty Allah and where the authority is to be exercised by the chosen representatives of people as a trust, the right of the citizens to be governed in accordance with the Constitution, has been held to be an inalienable right. The Objectives Resolution which has now become a substantial part of Constitution guarantees Fundamental Right inter alia of political justice. That being so, we are unable to understand as to how the petition can be or should be dismissed when in view of the findings that the Chief Minister while tendering the advice had acted mala fide and further that at the time when the notice of resolution of non-confidence was given no advice for dissolution had been tendered. While deciding the controversy like the present one, the following observations of the Supreme Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 at page 22, may be borne in mind. [p. 654] AA

It may also be stated that in matters of public interest the petitioner even if he wishes to withdraw the petition filed by him need not be permitted to do so. It was so held in (AIR 1988 SC 221). [p. 655] BB

We may also state that Supreme Court of Pakistan in its recent judgment, Mian Muhammad Nawaz Sharif v. Federation of Pakistan, has been pleased to hold that in view of Article 17 of the Constitution, to obtain political justice and to remain a member of the Assembly during its normal tenure is a fundamental right. That being so, as the present case involves the enforcement of fundamental rights, it is to be treated at a pedestal higher than an ordinary matter which does not involve the enforcement of fundamental rights. In somewhat similar situation, the Indian Supreme Court, while construing the provisions of Article 32 of the Indian Constitution which entitles the Supreme Court to issue a writ for enforcement of fundamental rights, observed that:

“…..In other words he maintains that nobody has the fundamental right that this Court must entertain his petition or decide the same when disputed questions of fact arise in the case. We do not think that that is a correct approach to the question. Clause (2) of Article 32 confers powers on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that any particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights.” [p. 656, 657] EE

These observations would equally apply in a case before this Court under Article 199 of the Constitution if it involves the enforcement of fundamental rights. [p. 657] FF

“Being a constitutional jurisdiction, the writ jurisdiction is paramount and every form of limitation which normally fetters the exercise of other remedies, as they are reflected in the pre-existing state of law of our country, does not in any manner control or delimit its scope.” [p. 657] GG

It was for the reasons detailed above that we allowed this constitutional petition and declared the impugned order of the Governor of the Punjab dated 29-5-1993 dissolving the Provincial Assembly of the Punjab to be without lawful authority and of no legal effect, with the result that the Provincial Assembly of the Punjab stood restored. [p. 657] HH

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