' M. MAHBOOB AHMAD, CJ.---This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 seeks a direction in the nature of quo warranto to restrain respondent No,1 from functioning as the President of Pakistan and to call upon him to show under what authority of law he is acting as the President of Pakistan with the further consequential direction to annul all orders passed by respondent No,1 after 13th of December, 1988. Direction to respondent No,2 to hold elections afresh to the Office of the President has also been sought for.
2. The learned counsel for the petitioner has raised the following contentions.:-
(i) That a conjunctive reading of Articles 41 (3), 41 (5), 41 (6), 41 (7), 49, 91 (2) and 270-A leaves no room for doubt that after the death of General Muhammad Zia-ul-Haq, no elections could be held to the Office of the President of Pakistan before 20th of March, 1990;
(ii) That Article 45 (6) of the Constitution of Islamic Republic of Pakistan does not oust the jurisdiction of this Court to examine the validity of the election of the President;
(iii) That lathes have no relevance in a petition in the nature of quo warranto.
3. The contention of the learned counsel at No,(i) above as elaborated by him meant that since the election envisaged by Article 41 (3) was to take place on the expiry of the period specified in Article 41 (7), which according to the learned counsel expired on 20th of March, 1990, the election held on 12th of December, 1988 was violative of the aforementioned provisions of the Constitution.
4. Mr. Aziz A. Munshi, the learned Attorney-General being present was given notice under Order XXVII-A of the Civil Procedure Code. He has in reply to the submissions made by the learned counsel for the petitioner mainly relied upon the order of this Court dated 25th of March, 1990 passed in a similar Constitutional petition (W.P. No, 1924 of 1990).
5. Suffice it to observe that while making the above submissions, the learned counsel for the petitioner does not appear to have comprehended the true scope and import of Article 41 (7) of the Constitution. The said sub-Article related to a particularized President mentioned by name therein and was only intended to serve a particular situation. It lost all its utility and efficacy with the death of late President General Muhammad Zia-ul-Haq. The said sub-Article in fact for all intents and purposes is inoperative in the circumstances arising from the demise of the late President. The manner in which the learned counsel for the petitioner wants us to read the same would amount to the reading of someone else's name in place of late General Muhammad Zia-ul-Haq, which defeats the very purpose for which the said sub-Article was added. We are clearly of the view that the application of sub-Article (7) of Article 41 was confined to late General Muhammad Zia-ul-Haq alone and that the said sub-Article being a particularized provision cannot be interpreted in a manner to make it generally applicable in situations not envisaged by the provision itself.
6. From a perusal of sub-Article (3) and sub-Article (7) of Article 41, it also clearly emerges that the President envisaged by the opening words of sub-Article (3) was late General Muhammad Zia-ul- Haq who was mentioned by name in sub-Article (7) and he having ceased to be the President on account of his demise, his term contemplated by sub-Article (7) came to an end along with his death. Any other interpretation placed on the aforementioned two sub-Articles would not only be against the constitutional intendment but would also nullify the effect of other provisions of the Constitution as would be presently examined, resulting, if allowed, to a complete constitutional chaos. Such an interpretation is clearly not countenanced by the framework of the Constitution and of necessity has to be obviated and avoided on the well-settled principles of construction of Statutes and in particular the Constitution. The contention of the learned counsel in the light of the above discussion is wholly devoid of any force.
7. Assuming for the sake of arguments only that interpretation as sought to be placed by the learned counsel for the petitioner on the aforementioned two sub-Articles could be possible, even then the other view as taken by us above being more plausible, effective and harmonious and which can give effect to the totality of the provisions of the Constitution governing the subject has to be given preference on the more rigid and narrow interpretation as canvassed by the learned counsel. Needless to mention here that a constitutional provision cannot be interpreted in a pedantic, dogmatic and narrow campus so as to deflect the underlying intention of the Constitution.
8. In "The Board of County Commissioners of the County of Lake v. Frank W. Rollins" reported as 130 US 662, the United States Supreme Court has observed that the whole aim of construction as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framework and the necessities which gave rise to it. Similarly, in the matter of George M. Bain, Jr. Reported as 121 US 1 (12) it was observed that the Court should place itself in the condition of those who framed and adopted the particular provision of the Constitution. It, therefore, follows from the above principle that if the meaning be at all doubtful, the doubt should be resolved wherever reasonably possible to do so in a way to forward the evident purpose with which the provision was adopted.
9. In the present case undoubtedly the evident purpose of sub-Article (7) of Article 41 was to provide a term of five years for late General Muhammad Zia-ul-Haq as President notwithstanding the position that he had not been elected in the manner otherwise provided for by the Constitution for election of a President.
10. Yet another aspect of the matter is that the learned counsel himself wanted us to read all the sub-Articles of Article 41 and Article 49 together. Now by so doing, it will be found that sub-Article
(5) of Article 41 provides that an election to fill a vacancy in the Office of President has to be held not later than 30 days from the occurrence of a vacancy envisaged by Article 49 with a proviso added to cater for a situation where the election intended by sub-Article (5) cannot be held within the aforesaid period for the reason that the National Assembly stands dissolved and in that event the election could be held within 30 days of the general election to the Assembly. In the case in hand, after falling of the vacancy on the demise of late General Muhammad Zia-ul-Haq on 16-8- 1988, President Ghulam Ishaq Khan assumed the Office of the President by virtue of sub-Article (1) of Article 49. He could hold that Office in view of the position that the National Assembly stood dissolved at the time only upto 30 days of the holding of the general elections to the National Assembly which concluded on 13-11-1988. That being so, the Office of President of Pakistan had of necessity to be filled in through election within 30 days from 13-11-1988.
11. To hold that notwithstanding that the Office of the President had fallen vacant on 16-8-1988, the election of the President could not be held till 20-4-1990 would tantamount to violence to the constitutional provisions and rendering sub-Article (5) of Article 41 as nugatory. Such an interpretation on all capons of construction of Statutes is not permissible especially while interpreting constitutional provisions. It is well-settled that effect should be given to every part and every word of the Constitution and, therefore, as a general rule the Court should avoid a construction which may render any provision meaningless or inoperative. If we may say so, the Court is bound in law to lean in favour of a construction which will make every word operative rather than one which may make some words idle or redundant. Authority, if any needed in this regard, may usefully be found in the pronouncement of Supreme Court of Pakistan in the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan reported as PLD 1957 SC (Pak 219. {{PAGE CUTTING}}
12. It is also the duty of the Court to have recourse to the instrument as whole if necessary to ascertion the true intent and meaning of any provision ar even if there be any apparent repugnancy between the different provisions, Court should harmonise them, if possible rather than render any provisic meaningless.
13. Applying the above principle of construction of constitution instruments, it would be seen that the view that we have taken fulfils all essentials for a harmoneous construction of the various provisions of Constitution viz. Articles 41 (3), 41 (5), 41 (7) and 49 and also avoids rendering of any provision as meaningless or redundant.
14. We have, therefore, no hesitation in reaffirming the view taken in order of this Court dated 25-3- 1990 passed in Writ Petition No, 1924 of 199 Before parting with this aspect of the matter we may also observe that so far the reference by the learned counsel for the petitioner to Articles 270-A and (2) of the Constitution is concerned, the same in the attendant circumstances ar in the light of the discussion made above will have no applicability to the case hand.
15. The above discussion serves also to dispose of the contention raised c behalf of the petitioner to the effect that the jurisdiction of this Court is n ousted in the matter of challenge to the validity of the election of the Presider The said contention is not tenable because of our finding that the question( election of the President has been validly held. That being so, it follows that tl bar contained in sub-Article (6) of Article 41 is squarely applicable to the' insta case.
16. Adverting now to the last contention raised on behalf of the petitioner, may be observed that there can be no dispute with the proposition that lach would not generally apply in cases of quo warranto but then the Court can al not ignore the application of this principle if the attendant circumstances are su which militate against the bona fides of the petitioner. The election of responded No,1 to the Office of the President of Pakistan was held on 12th of December 1988 and in pursuance of that election, respondent No,1 took oath of his Offi on 13th of December, 1988 and is performing his functions as President Pakistan since then. The attempt of the petitioner at such a belated stage to c in question the validity of the said election and as a consequence the validity the acts of the President, as already observed above, is bound to create confuse and chaos which in national affairs must be avoided as far as possible, especial when no ground exists for holding that the election of the President held on 12 of December, 1988 suffered from any legal infirmity. The circumstances which float manifestly on the surface warranted an explanation from the petition about the delay in filing this petition. Nothing at all has been urged today plain the inordinate delay of 24/2 years from the date of the questioned action of the President and more than one year even from 20-3-1990, in filing petition. This is yet another valid basis for refusing to entertain this petition.
17. Before concluding, we may also observe that the term of Office of the of Pakistan has been provided for by Article 44 of the Constitution and same is prescribed therein to be five years from the date he enters upon his ice. This applies equally to the President elected on the occurrence of a any or otherwise as no distinction in this behalf is made in any provision reining the subject. Having held that sub-Article (7) of Article 41 was intended serve a particular situation relating to a particularized President the said would not detract from the validity of the above view. In the context of discussion, the validity of the President holding the Office is otherwise also pond question.
18. For all the above reasons, this petition has no merit and it is accordingly missed. {{PAGE CUTTING}}