Per Malik Muhammad Qayyum, J.(a) Constitution if Pakistan (1973) Art.112–
We are not impressed with this argument for various reasons; firstly that if the Constitution has not placed any bar on the powers of a Chief Minister to advise the dissolution of the Assembly after he has been asked by the Governor to obtain a vote confidence, the issuance of proclamation with a view to achieve same object indirectly will clearly be against the Constitutional intent; secondly if the idea was to denude the Chief Minister of this power, the persons who had resigned from the Cabinet, could if they so minded, have given notice of no-confidence which would take away the power of Chief Minister under Article 128 of the Constitution and lastly, more importantly in none of the written statements filed by the respondents there is any averment that the petitioner intended to dissolve the Assembly and the Proclamation under Article 234 was issued in order to deprive him of that power. This plea being raised in this behalf is based upon conjectures and surmises and does not deserve any serious consideration. We may, however, point out that this Court in Ch.Pervaiz Elahi v. Province of Punjab and another (PLD 1993 Lah. 595) has already held that if the Chief Minister advises the dissolution of Assembly only due to the fact that he had lost confidence of the majority of Members, the Governor is not bound to act upon that advice.[p. 76, 77] Z
Ch. Pervaiz Elahiv. Province ofPunjab and another PLD 1993 )Lah. 595 ref.
Although there may be difference between holding an office and performing functions but to us the Constitutional intent clearly is that it is a Chief Minister who is fully functional who can be asked to obtain a vote of confidence under Article 130(5) of the Constitution.
There is also merit in the contention of the learned counsel for the petitioner that obtaining a vote of confidence under Article 130(5) of the Constitution is one of the functions of the Chief Minister. In ordinary language as well as legal parlance “function denotes owner, duties and requirement of an office”.[p. 79]FF
Malik Ghulam Jilani v. Mr. Justice Muhammad Gul, Judge Supreme Court of Pakistan 1978 SCMR 110 : ref.
It follows that even if the petitioner was holding the office of the Chief Minister yet as he could not function in view of the Proclamation issued by the President under Article 234 of the Constitution directing him to cease to function, he could not have been asked to obtain a vote of confidence.[p. 81]GG
Granted that the Constitution itself does not prescribe any limit regarding time but it is well-accepted principles that where time is not fixed for performance of any obligation or the duty ; it must be performed within reasonable time.[p. 81] HH
Pir Sabir Shah v. Federation of Pakistan and other PLD 1994 738 ref.
We regret our inability to agree. Article 130(5) of the Constitution requires the Chief Minister to obtain vote of confidence. He is, therefore, to be granted reasonable time and opportunity to obtain vote of confidence. Be that as it may, the discretion vesting in the Governor under Article 130(5) of the Constitution of Islamic Republic of Pakistan, 1973, as regard fixation of time must be exercised reasonably, justly and fairly like any other discretion. Clearly, the order which was served on the petitioner at 10-30 p.m. in the night requiring him to take a vote of confidence on the next day i.e. 12-9-1995 at 2-00 p.m. to the petitioner.[p. 82]JJ.
We are not impressed by this contention. Admittedly, under the Constitution, a new Chief Minister can only be elected if me office of Chief Minister had fallen vacant either due to death or resignation or a resolution of no-confidence having been passed against him or on his failure to obtain vote of confidence.[p. 84]QQ
We are not impressed with these contentions. The Constitution in Article 130(5) specifically prescribes that Chief Minister shall be asked to take vote of confidence in a Session especially summon for that purpose. In view of this command of the Constitution there is no room for drawing and inference from certain other proceedings of the Assembly the petitioner had failed to obtain vote of confidence.[p. 84]RR.
In order to ensure that no such practice takes place in the floor test to which the petitioner may be put, we intend to issue certain directions to the Governor of Punjab as the learned Advocate-General has himself stated before us that it is the obligation of the Governor, who issued order under Article 130(5) of the Constitution, to ensure the presence of the Members at the meeting called by him. As already observed, Raja Mehmood Akhtar, learned counsel appearing for the Members of the Provincial Assembly also right sought our intervention to protect the Members from horse-trading, etc. We shall, therefore, direct that the Governor of Punjab should ensure the presence of all Members of the Provincial Assembly at the meeting to be called by him so that the floor test is held fairly and justly. The parties as also the functionaries of the Federal Government and the Government of Punjab shall not cause any harassment to the Members nor place any impediment in their way in exercising their right of vote in a free and fair manner.
As regards the request of Mr.Zafar that if restored to office, the petitioner may be allowed sixty days’ time to obtain vote of confidence as similar period is allowed to a newly elected Chief Minister under Article 130(3) of the Constitution, we are of the view that the situation in the present case is different as the petitioner seeks restoration of office and not fresh election. At best the petitioner is entitled to grant of reasonable time. In the circumstances of the case and keeping in view the fact that the petitioner remained out of office for the last more than one year, we think that a period of ten days would meet the ends of justice.
For the foregoing reasons and in view of the above discussion, this petition is allowed in the following terms:-
(i) That the impugned Proclamation dated 5-9-1995, the order of the Governor under Article 130(5) of the Constitution, passed on 11-9-1995, the removal of the petitioner and the order passed in that behalf as also the election of respondent No.3 as Chief Minister are declared to be without any lawful authority and of no legal effect.
(ii) That as a consequence of the above, the petitioner stands restored to the office of the Chief Minister, Punjab as on 5-9-1995.
(iii) That the Governor, if may so advised, call upon the petitioner to obtain vote of confidence under Article 130(5) of the Constitution by giving him not less then then clear days to obtain vote of confidence.
(iv) That in the said Session the Governor of Punjab in terms of the direction given in para. 96 above, ensure the presence of the Members at the Assembly and also that no impediment is caused in the way of exercise of free right of vote by the Members at such a meeting.
(v) That as undertaken by the petitioner and Mr. S.M. Zafar on his behalf, the petitioner shall not advise the Governor to dissolve the Assembly before obtaining vote of confidence from the Assembly. If this undertaking is violated, this petition shall stand dismissed to the extent of his restoration to the office of Chief Minister of Punjab.
(vi) That if the petitioner fails to obtain vote of confidence, Sardar Muhammad Arif Nakai, respondent No.3 shall stand restored to his office as Chief Minister without any fresh election or other formalities.
(vii) No order a to costs.[p. 91, 92]CCC.