SHAFIUR RAHMAN, J.---The Federal Government and the Province of North-West Frontier, both have filed separate appeals against the judgment of the Peshawar High Court, dated 26th of September, 1990. An open leave to appeal was granted.
2. The factual background of the appeals is that Aftab Ahmad Khan Sherpao, President of Pakistan People's Party N.-W.F.P. Filed a Constitution Petition in the Peshawar High Court on the 19th of August, 1990 wherein he challenged the action of the Governor of N.-W.F.P. In the following words:- "That no untoward incidence took place in the Province after the passage of the Budget 1990-91 by the Assembly till the evening of 6-8-1990 when in most unceremonious manner Amir Gulistan Janjua the Governor of the Province while addressing a Press Conference in the Governor's House announced the dissolution of the Provincial Assembly of N.-W.F.P. And also the dismissal of the Government of the petitioner through an Order No. Legis.4(1)/77 of 6-8-1990 (Annexure `A') purportedly under Article 112 of the Constitution of Islamic Republic of Pakistan which action he had taken with the prior approval of the President of Pakistan.
That the dissolution of the Assembly of N.-W.F.P. And dismissal of the Government of the petitioner were part of the chain of events of the day as on the same day in the afternoon President Ghulam Ishaq Khan in a Press Conference addressed by him at Awan-e-Sadar, Islamabad had dissolved the National Assembly of Pakistan and dismissed the elected Government of Prime Minister Mohtarama Benazir Bhutto.
3. The formal order appended with the writ petition read as hereunder:- "WHEREAS a situation has arisen in which the Government of the North-West Frontier Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary; NOW, THEREFORE, in exercise of the powers conferred by sub-clause (b) of clause (2) of Article 112 of the Constitution of the Islamic Republic of Pakistan, 1, Amir bulistan Janjua, Governor of the North- West Frontier Province, in my discretion and with the previous approval of the President, hereby dissolve the Provincial Assembly with immediate effect, and consequently, the Provincial Cabinet shall also stand dissolved.
Amir Gulistan Janjua, Governor of North-West Frontier Provinc Peshawar, Dated the 6-8-1990."
It was circulated by Secretary, Provincial Assembly of N.-W.F.Pd to "all outgoing Members of the Provincial Assembly" and "all administrative Secretaries to Government of N: W.F.P." etc.
4. On 18th of September, 1990, the Provincial Government through its counsel Mr. M. Zahur-ul-Haq brought the attention of the Court to the following facts in the form of preliminary objections to the competency of the writ petition:- "That the petitioner has impugned an order appended to the petition as Annexure `A' apparently on the misconception that the said order is the one by which the Provincial Assembly was dissolved and Caretaker Government was dismissed by the Governor. Whereas the fact is that the order appended to the writ petition as Annexure `A' is not the order passed by the Governor.
That it is submitted that Annexure `A' purporting to the impugned order was neither approved by the President nor approved or signed by the Governor nor released to the Press by the Governor at the time of Press Conference held by the Governor on 6-8-1990 at evening time in the Governor House.
For the aforesaid reasons the writ petition is misconceived and is liable for dismissal.
That for the information of this Honourable Court it is submitted that the order of Dissolution under Article 112 of the Constitution previously approved by the President duly signed by the Governor and released to the Press at the time of the Press Conference of the Governor on 6-8-199() in the Governor House is entirely different and a photostat of the original is appended as Annexure `R 1' and a verbatim text of the said order published on the front page of Frontier Post, Peshawar, dated 7-8-1990, copy of which is appended as Annexure `R 2'."
On 15-9-19%, the same learned counsel for the Provincial Government had moved a Miscellaneous Application (No. 370 of 1990) under Order XXVIIA, Rule 1 of the Civil Procedure Code praying as hereunder:- "That since the writ petition involves a substantial question as to the interpretation of Constitutional law involving both the Provincial Government and the Federal Government, notice to Attorney General for Pakistan is imperative in whose absence the Court shall not proceed to determine the question within the meaning of Order XXVIIA, Rule 1:"
5. Both, the application dated 15-9-1990 and the preliminary objection raised on 18-9-1990 were considered by the Court on 18-9-1990 and the following order was passed:-= . , "As the Federation of Pakistan is a party to these proceedings, no separate notice under the law is required to be issued to the AttorneyGeneral and if he so chooses, he may represent the Federation in this case.
The application (C.M. No.370/90) being misconceived is rejected.
Respondent No.2 has filed a written statement along with an application containing preliminary .Objections with regard to the competency of the writ petition. The petitioner is directed to submit written reply to these objections by tomorrow the 19th September, 1990 and the case is adjourned to 22nd instant. Parties have noted the date fixed:"
6. When the matter came up before the Court for continued hearing on the merits of the writ petition on 25th of September, 1990, Mr. Maqbool Elahi Malik, Advocate who was representing the Federation requested for an opportunity for the Attorney-General for Pakistan to appear in the case on which the Order as hereunder was passed:- "Mr. Maqbool Elahi Malik, the learned counsel for respondent No.3 submitted an application today in Court that the matter be adjourned for a week to allow audience to Attorney-General of Pakistan.
The Attorney-General of Pakistan is busy in a Constitutional matter. Before a Full Bench of the Lahore High Court which is expected to take sufficient long time. The matter in hand is also very urgent and the petition cannot be adjourned for a week.
The request for adjournment is declined. The Federation is' already a party in this petition and there was no hindrance in the way of the Attorney-General of Pakistan to appear and argue the case on behalf of the applicant during the hearing of this matter.
Arguments concluded. Judgment reserved:"
7. During the course of the hearing, a question had arisen whether the permission of the President had been obtained as required under Article 112 of the Constitution and the following record of the proceedings has been kept by the Court with regard to it and it is dated 23rd of September, 1990:- "The Advocate-General N.-W.F.P. Was asked to contact the Governor N.-W.F.P to apprise this Court whether something in writing is available to show the approval of the President with regard to the dissolution of the Provincial Assembly.
Mr. M. Zahoorul Haq, counsel representing the Provincial Government, in reply has stated that he did contact the Governor on telephone after the Advocate-General was directed to do so and the Governor informed him that "on the evening of 5th of August, 19% he went to Islamabad taking along with him a rough draft, met the President who approved the order, which was announced on 6th of August, 1990 in the Governor House at Peshawar:"
8. A substitutive corrigendum was issued .By the Government of N.-W.F.P. On the 16th of September, 1990, as hereundcr:- "CORRIGENDUM In the Gazette (Extraordinary) Notification Government of N.-W.F.P No. Legis. 4(1)/77, dated 6th August, 1990 on page 8f> for the contents read as under:- The Governor has given serious consideration to the situation prevailing in the North-West Frontier Province and having done so is of the opinion that the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary inter alia and among others for the reasons mentioned hereunder: The usefulness and the mandate of the Provincial Assembly of North West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horse-trading`. Change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government. Local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(sl prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people NOW, THEREFORE, I, Amir Gulistan Janjua, Governor of NorthWest Frontier Province in exercise of the powers conferred on me by clause (2)(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, with the previous approval of the President of Pakistan, hereby dissolve the Provincial Assembly of North-West Frontier Province with immediate effect; and the Chief Minister and the Cabinet have ceased to hold office forthwith.
Peshawar (Sd.)
Dated 6th August 1990Governor of North-West Frontier Province."
9. The main grounds taken up initially in the Constitution petition for challenging the impugned order of the Governor were as hereunder:- "(i) there has to be sufficient justification and evidence to establish thatthe affairs of the Government could not be run in accordance with the provisions of the Constitution. No such justification/evidence, was available justifying an action by the Governor and the President under Article 112 in respect of the Assembly of N.-W.F.I'. And the Government of the petitioner.
(ii)That it is legally and factually not possible that the Government of the Federation of Pakistan and the Province of N-W.F.P. As well as Sindh should constitutionally collapse the same day. The fact is that the President of Pakistan passed an unconstitutional order in respect of the National Assembly .Of Pakistan and the Government headed by Mohtarama Benazir Bhutto as Prime Mi Ister on 6-8-1990 and on the same day in the evening the Governor passed an order in respect of the Provincial Assembly of N-W.F.P. And the Government of the petitioner.
(iii)That there was no constitutional crisis in the Province on or immediately before 6th August 1990.
(iv)As stated earlier the dissolution of the Assembly by the Governor with the approval of the President and in consequence thereof the dismissal of the Government of the petitioner were based on mala fide and conspiracy. Such conspiracy which is against the sovereignty of the people of Pakistan.
(v)That the so-called exercise of powers under Article 112 of the Constitution is in fact in violation of the provision of the Constitution and the order has been passed in colourful exercise of Article 112 of the Constitution without any evidence, reason and justification which is precondition for ,such exercise
(vi) That the order does not give any specific instance of Constitutional violation, thus it is vague and general."
10. The Writ Petition was contested. By a short majority order dated 26th of September, 1990, the Writ Petition was accepted declaring the impugned order as unconstitutional, without lawful authority and of no legal effect. Consequently, restoring the Provincial Assembly and the Cabinet.
The detailed reasons provided the findings and these were as hereunder:- "(i)In the circumstances, we are of the opinion, firstly, that enough material was not placed before us to prove that prior approval of the President which is an essential prerequisite for dissolving a Provincial Assembly was ever obtained.
(ii)Secondly, assuming that the same was obtained, the approval was not accorded by the President on the advice of the Prime Minister.
(iii) ....The admitted position is that both do not give any reason or ground for the satisfaction of the Governor to dissolve the legislature- The so called corrigendum dated 16-9-1990 which did carry the grounds for `dissolution of the Provincial Assembly was admittedly issued after the Constitutional petition was admitted for regular hearing on 21-8-1990.
This document could easily be taken out of consideration as an afterthought.
(iv) The other example cited by the learned counsel with regard to certain IJI members joining the Government after the break up of the said coalition, suffice it to say, that those members formed an independent group and joined the Government as such group. Whether such an action on their part amounted to defection is a matter still sub Judice before this Court.
(v) We, therefore, conclude that the material so provided to us which formed the basis for the opinion of the Governor is least relevant for establishing the allegations levelled by him in the so- called corrigendum."
With regard to the requirement of notice to the Attorney-General for Pakistan and the requirement of his being heard was once more considered in the light of requirement of Order XXVIIA, Rule 1 of the Civil Procedure Code and the conclusion drawn was as hereunder: "It is quite obvious from the perusal of the Rule that the contents thereof are, firstly, applicable to a suit and secondly, if we extend the general principles of C.P.C. To the proceedings before the High (Curt in a Constitutional petition. Two functionaries are mentioned in the said Rule who are to be issued notices, namely, Advocate-General of the Province and the Attorney-General of Pakistan.
Two situations are, therefore, visualised. The Advocate-General is to be issued notice if the question of law concerns the Provincial Government and a notice shall be issued to the Attorney-General of Pakistan if the question of law relates to .The Federal Government. Before us, is the question of dissolution of the Provincial Assembly and the Advocate General of the Province has been associated since the inception of this case. Furthermore, Order XXVIIA, Rule 1, C.P.C. Would normally deal with a situation where suit is filed before the Court wherein the Federation or the Province is not a party but a substantial question ofConstitutional interpretation is . Involved concerning the Federal Government or the Provincial Government as the case may be. In such a situation it is quite obvious that either the Advocate-General of the Province or the Attorney-General of Pakistan shall assist the Court concerned. Here before us both the Province and the Federation are arraigned as parties. Due notice has been received by them. The Provincial Government has engaged a private counsel along with the Advocate-General of the Province to whom notice was issued by the Court on 22-8-1990. Similarly the Federal Government has decided to engage a counsel who represented it before us. If the Attorney-General had decided to represent' the Federation we would, have been too happy to hear him as well. But we do not find it incumbent on us in the circumstances of the case to needlessly issue him a notice while he is busy in arguing similar cases before other High Courts and we were requested to wait for the conclusion of those cases in order to hear him."
11. In the two appeals coming before us, a serious objection has been taken in both to the obvious failure of the High Court to give effect to Order XXVIIA, Rule 1 of the Civil Procedure Code and the serious effect of it. It is contended that very important Articles of the Constitution and the exercise of functions under the Constitution have been examined in the absence of the Attorney-General of Pakistan and without the notice as is Required under Order XXVIIA, Rule 1, C.P.C. This vitiates the judgment, the requirement being mandatory.
On merits also, it has been contended that questions of fact not seriously raised and disputed were made the basis of the judgment. In this respect the question of prior approval of the President under Article 112 of the Constitution and the want of advice of the Care-taker Prime Minister have been referred to. It has also been urged that in view of large-scale defections, horse-trading and corruption among the elected . Representatives, the Constitutional form of Government through elected representatives had become impossible.
12. The respondent No.1 has defended the majority judgment of the High Court on all the grounds on which it proceeds applying the standard of justifiability and the grounds required as laid down by this Court in Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 1,66.
As regards mandatory provision i.e. Order XXVIIA, Rule 1, C.P.C., it is contended that substantial compliance with it had taken place and full hearing was afforded to the Federal Government.
13. Order XXVIIA was introduced in the Code of Civil Procedure by Act NOXXIII of 1942, Code of Civil Procedure (Amendment) Act, 1942. It after necessary adaptations reads as hereunder:- "(1)Notice to the Advocate-General.---In any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government.
(2)Court may add Government as party.---The Court may at any stage of the proceedings order.
That the Federal Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the interpretation of Constitutional law if the Attorney- General for Pakistan or the Advocate-General of the Province as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.
(3)Costs when Government added as party.---Where under rule 2 Government is added as a defendant in a suit, the Attorney-General, the Advocate-General or the Government shall not be entitled to or liable for costs in the Court which ordered the addition unless the Court having regard to all the circumstances of the case for any special reason otherwise orders.
(4)Application of order to appeals.--In the application of this Order to appeals the word "defendant" shall be held to include a respondent and the word "suit" an appeal."
14. The necessity for its introduction arose because while deciding the case United Provinces v. Mt.
Atiqa Begun and others AIR 1941 Federal Court 16, the learned Chief Justice of the Federal Court had made the following observations:- "Since the new Constitution Act, however, the position with regard to the competence of Indian Legislatures, whether the Central Legislature or the Legislatures of the Provinces, is completely changed; and the cases which have already come before this Court during its brief history show the difficulty and complexity of the disputes in which questions of legislative competence are involved. I think that it would be a matter of great regret to this Court if in any such case it had not the assistance of the Advocate-General of the Province concerned, and this point was not overlooked when the rules of the Court were drafted; See Federal Court Rules, 0.36. But in the absence of such an express rule in the Code, it is necessary to decide, first, whether the Advocate- General was rightly empowered to intervene as a party on the record, and, secondly whether in the particular circumstances of the present case he has an independent right of appeal."
15. The effect of Rule 1, Order XXVIIA of C.P.C. Was examined in the case of Heman Sandal v. State of Bombay AIR 1951 Bombay 121. In that case the Provincial Government was already a party to the proceedings. The question was whether the requirement of the Rule had to be literally satisfied by separately giving a notice to the Advocate-General concerned and the question was formulated in the following words:- "There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the Constitution and Rule 1, Order 27-A makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State and to the Attorney- General if it concerns the Union Government. As the rule stands, it is clear and explicit and as I said before mandatory and it makes it incumbent upon the Ct. In every suit where such a question arises to give notice to the Advocate-General or the Attorney-General as the case may be. What is urged before us is that R.2 makes it clear that the object of the Legislature in providing R.1 was that the Advocate-General or the Attorney-General should have notice only in cases where the State was not a party, the contention being that it is the State that should have notice and not the Advocate-General or the Attorney-General as such, and that the reason for giving the notice to the Advocate-General or the AttorneyGeneral was that they represented respectively the State and the Union Government and therefore, it is contended that it would be futile and useless to give notice to the Attorney-General or the Advocate-General when the Union Government or the State were already parties to the suit or proceedings."
It was answered by the Court as hereunder:- "It is also known that the Advocate-General is the leader of the Bar. He not only represents the State, but he also represents the Bar. A question may also arise where there may be a conflict between the rights and privileges of the members of the Bar and. The rights of the State and in such cases it would be very desirable not only to have the State before the Ct. But also the Advocate-General in his capacity as Advocate-General, and therefore we do not see any reason why we should read in R.1 that the Advocate-General or the AttorneyGeneral has to be given notice merely as the mouthpiece of the respective Governments. They have independent rights and independent functions to discharge and as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation ... .... ... ....It may be that in majority of cases the matter may be academic and not of much importance, but we accede to the argument of the Advocate-General that we should not put any limitation upon R.1 when the Legislature did not choose to do so. We, therefore, hold that in every case which involves a question referred to in R.1 notice must be given by the Ct.
To the Advocate-General or the Attorney-General as the case may be."
16. In the case of Inayatullah and others v. MA. Khan and others PLD 1961 (W.P.) Lahore 536, in proceedings which were not of civil suit but under the West Pakistan Waqf Properties Ordinance of 1959, Order XXVIIA of the Code of Civil Procedure was interpreted as hereunder: "It is true that as worded, the rule relied upon by the learned Advocate-General would appear to apply to suits only but if the provisions of section 141 of the Code of Civil Procedure are kept in view it becomes clear that Order XXVIIA of the Code was as fully applicable to the proceedings before Mr. S.M. Tirmizey as it would have been if the point with regard to the validity of the Ordinance had been taken up in a suit. It follows therefore, that the learned District Judge had given his decision that the Ordinance was ultra vires the Governor of West Pakistan without complying with the provisions of law, because the question of the validity of an enactment is covered by subsection (1) of section 205 of the Government of India Act, 1935, and Order XXVIIA, Rule 2 of the Code of Civil Procedure was applicable. Had it not been for the fact that it is not necessary to decide whether the decision of the learned District Judge was correct or otherwise, it is by no means unlikely that the decision of the learned District Judge would have been vacated or at least subjected to criticism for the reason that the learned Judge had not followed a mandatory provision of law."
17. In the case of Haider Automobiles Ltd. v. Pakistan PLD 1967 Lahore 882, the applicability of Order XXVIIA, Rule 1 of the Code of Civil Procedure, came up in proceedings other than civil. Suit i.e., Writ Petition, and the Court held as hereunder: "Under rule 1 the Advocate-General of the Province or the AttorneyGeneral of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby, the Government does not become a party to the case. It is only under rule 2 that the Government is to be added as a party, if necessary.
Order XXVIIA was inserted by the Civil Procedure (Amendment) Act, XXIII of 1942 as, a result of the invaluable opinion expressed by Gwyer, C.J. In United Province v. Mst. Atiqa Begum and others AIR 1941 FC 16 which brings out this distinction.
30.This would mean that the decision of the Full Bench of this Court in the matter relating to Syed Akhlaque Hussain and others was not binding on the Central Government of Pakistan who was not a party before the High Court."
18. The Rules of Interpretation of Statutes, also point in the same direction. Rule 1 of Order XXVIIA of the Code of Civil Procedure prohibits the Court from determining the specified questions without notice to the Attorney-General or the Advocate-General, as the case may be. Crawford in Statutory Construction has made the following comments with regard to such language in the statute in para. 263:- "Prohibitive or negative words can rarely, if ever, be directory, or, as it had been aptly stated, there is but one way to obey the command "thou shall not", and that is to completely refrain from doing the forbidden act. And this is so, even though the statute provides no penalty for disobedience.
Accordingly, negative prohibitory and exclusive words or terms are indicative of the legislative intent that the Statute is to be mandatory, .........
19. In the case of Lachmi Narain etc. v. Union of India and others AIR 1976 SC 714, this rule of interpretation was recognized in the following words:- "If the legislative intent is expressed clearly and strongly in imperative words, such as the use of `must' instead of `shall', that will itself be sufficient to hold the provision to be mandatory, and it will not be necessary to pursue the enquiry further. If the provision is couched in prohibitive or negative language, it can rarely be directory, the use of pre-emptory language in a negative form is per se indicative of the intent that the provision is to be mandatory."
20. The result of the above discussion of the law and the principles governing its interpretation is that the provision of rule 1 of Order XXVIIA of E the Code of Civil Procedure is found to be mandatory and its non-compliance renders the proceedings defective.
21. It is of some interest to note observations in books and decided cases with regard to expressions like "nullity", "void", "voidable" and the "lack of jurisdiction". In `jurisdiction and illegality', Amnon Rubinstein, at page 220 makes the following observations:- "It is now established that, even in certiorari cases total absence of evidence does not go to jurisdiction, and it seems that by the same reasoning, all procedural errors should similarly be regarded .As not jurisdictional. The case-law, however, affords the usual spectacle of anarchy upon which order can hardly be superimposed."
The same author at page 50 observes as hereunder:- "However, the general rule is that where the decision is a nullity, an appeal is somewhat useless as despite any decision on appeal, such a decision can be successfully attacked in collateral proceedings. Some dicta go even further in maintaining that where the decision appealed from is a nullity, an appeal cannot lie at all. Indeed, if the nullity theory is carried to its logical conclusions, some difficulties must arise with regard to appellate jurisdictions. Appellate Courts or tribunals are generally empowered to review `decisions' (or whatever other term which is applicable) of lower instances. If the `decision' is null, it may be argued that the Court has no jurisdiction to review it:'
As regards the want of hearing in proceedings where a party is required to be heard, the author observes at pages 220 to 222 as hereunder:- "The duty to give a hearing to the person concerned is decreed by natural justice, and its breach amounts to a grave defect in the proceedings. But does this defect go to jurisdiction? It has already been seen that breach of another tenet of natural justice, the rule against bias, is not jurisdictional and does not render the proceedings void. As in the case of bias, breach of the audi alteram parten rule is re-dressible by supervisory remedies, i.e. Upon certiorari and mandamus, and for this purpose the defect is classified, as is to be expected, as jurisdictional. However, breach of the audi alteram parten rule has also been held to be actionable and is sometimes considered a jurisdictional defect which nullifies the proceedings It is, therefore, submitted that breach of the audi alteram parten rule does not go to jurisdiction and does not nullify the proceedings. This submission can actually be supported by some of the cases which held this breach of duty to be actionable. Even where such actions. Did succeed, the Courts have not necessarily rested their judgment on the nullity of the disputed proceedings."
22. In this background of conflicting views, this Court in the case of Messrs Conforce Ltd. v. Syed Ali Shah etc. PLD 1977 SC 599, expressed its opinion as hereunder:- "In view of the frequency with which gross negligence is sought to be condoned on the plea that the impugned order was void or without jurisdiction, we would observe that a void order or an order without jurisdiction is only a type of an illegal order passed by a Court and the fact that it has been passed and that it 'may, therefore, create rights cannot be altered by describing it as void or without jurisdiction. And, further, the expressions void orders and orders without jurisdiction are overworked expressions. No doubt they are relevant in some contexts but as suggested by Lord Reid in Anisminic Ltd. v. Foreign. Compensation Commission and others (1969) 2 AC 147. It would be better to use these expressions in the narrow and original sense of the lack of competence of the Court or the Tribunal `to enter on the enquiry in question'."
23. This matter was pointedly and specifically dealt with by this Court in the case of Mst. Rehmat Bibi 1986 SCMR 962, as hereunder:- "We find that in the High Court the learned Judge has placed reliance on a number of precedent cases, including Allah Dino v. Faqir Muhammad and another PLD 1969 SC 582, for the proposition that if an impugned order has been passed without hearing and notice to a party whose presence is otherwise necessary before the authorities .y,4 ; F concerned, then the order will be a nullity in the eye of law, and no question of limitation would arise. Mr. Abdur Rashid was not in a position to controvert this proposition of law by reference to any authority or pronouncement of this Court or even of the High Court. It would appear, therefore, that the Courts below were justified in deciding the question of limitation in favour of the respondent. The affidavit filed in this Court is an afterthought."
24. In Redifussion (Hong Kong) Ltd. v. Attorney-General of Hong Kong and another 1970 A.C. 1136, the Privy Council laid down the law in the following words:- "A properly constituted Court may lack jurisdiction on four grounds: (1) Because a condition precedent to its entering upon the inquiry has not been fulfilled, e.g. ,a requirement such as existed in some British Colonies that notice be given to the Government before starting an action against it. (2) Because of the status of one of the parties to the action, e.g., an action brought against a foreign sovereign or arnhassador who has not consented to the jurisdiction or an action brought by an alien enemy.
(3) Because of the subject-matter of the dispute in respect of which the relief is sought, e.g., a dispute involving the title to foreign land. (4) Because of the nature of the relief sought, e.g., dissolution of marriage before the Matrimonial Causes Act, 1857, or an injunction against the Crown.
Lack of jurisdiction may be due to a combination of two or more of these grounds, e.g., an injunction against the Crown is a combination of grounds (2) and (4). Where the reason of public policy for excluding the jurisdiction of the Court is the protection of a particular class of persons a defendant who belongs to that class can, by waiving his immunity, confer- jurisdiction on the Court; but, with this exception, no agreement between the parties can give to the Court jurisdiction which it would otherwise lack."
25..In the case of Mansab Ali v. Amir and 3 others PLD 1971 SC 124, this Court laid down the law as hereunder:-- "If it was a necessary condition for the proper exercise of jurisdiction by the Commissioner under section 3 of the Criminal Law (Amendment) Act to give notice to the respondents, before referring the question of the guilt on innocence to the Tribunal, then failure to comply with this requirement rendered the order of reference illegal and void.
It is an elementary principle that if a mandatory condition for the exercise of the jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction. The learned Advocate- General fully supported this view and asked for dismissal of the appeal."
26. The upshot of the above discussion is that the impugned judgment of the High Court is a nullity on account of non-observance of mandatory requirement of Order XXVIIA, Rule 1 of the Civil Procedure Code. The Constitutional questions touching the Federation examined and decided by the High Court were-
(i) whether the President had accorded approval under Article 1.12(2) of the Constitution? And (ii)whether in according the approval the President had obtained and acted on the advice of the Care-taker Prime Minister to satisfy the Constitutional requirement of Article 48 of the Constitution?
27. Coming to the merits of the decision of the Peshawar High Court. We find that while examining the case, the High Court did not show awareness of another principle explained by this Court in two cases, earlier. In the Chairman, East Pakistan Railway Board, Chittagong and District Traffic Superintendent v. Abdul Majid Sardar. Ticket Collector PLD 1966 SC 725 the approach and attitude to such cases was indicated in the following words:- acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should he explored and the whole field 'of powers in pursuance to which the public authorities act or perform their filnetion examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect."
This was approved and reiterated in Lahore Improvement Trust, Lahore through its Chairman v. The Custodian, Evacuee Property, West Pakistan, Lahore and 4 others PLD 1971 Supreme Court 811 in the following words:- "Another principle attracted in the case is that before an order passed by a public authority is struck down it is the duty of the Court to explore every possible explanation for its validity and examine the entire field of powers conferred on the authority in pursuance to which the impugned order has been passed. See the Chairman, East Pakistan Railway Board, Chittagong and another v.
Abdul Majid Sardar, Ticket Collector PLD 1966 SC 725. It was remarked in this judgment: `Acts performed and orders made by public authorities deserve due regard by Courts and every possible explanation for their validity should be explored and the whole field of powers in pursuance to which the public authorities act or perform their functions examined and only then if it is found that the act done, order made or proceeding undertaken is without lawful authority should the Courts declare them to be of no legal effect.'
To satisfy the requirement of this rule it is the duty of the Court to examine the entire record pertaining to the action taken, order passed and proceedings undertaken which are challenged as without lawful authority under Article 98 of the Constitution. Otherwise grave miscarriage of justice may take place in the exercise of this beneficial jurisdiction."
28. There was no direct challenge to want of approval by the President nor to the lack of advice of the Care-taker Prime Minister. Yet, the Courtproceeded to examine these facts of its own and by raising a doubt interfered with a Constitutional power reserved for the Governor and the President.
Itbeing a controverted question of fact could not be so raised nor decided on the material before the Court.
29. It was not disputed by any of the parties before the High Court that the Governor had, apart from passing a formal Order, made the announcement of the same in Press Conference which had found wide publicity in the Press next morning. It was a contemporaneous act . There being no dispute with regard to it, the Court could refer to it for looking to the grounds disclosed then and sustained afterwards. There was a written statement which was read out at the Press Conference. The very first ground, reproduced within quotation in the Frontier Post, dated 7-8-1990, taken from the written statement was as hereunder:- - "The usefulness and the mandate of the Provincial Assembly of North- West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and "horse-trading", change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provision of the Constitution including the requirements of oath(s) prescribed thereunder and the law is not possible and further the members have lost the confidence of the people.
" Now therefore I, Amir Gulistan Jahjua, Governor of North-West Frontier Province in exercise of the powers conferred on me by clause Two(B) of Article 112 of the Constitution of the Islamic Republic of Pakistan with the previous approval of the President of Pakistan, hereby dissolve the Provincial Assembly of North-West Frontier Province with immediate effect, and the Chief Minister and the Cabinet have ceased to hold office forthwith;'
30. The High Court dealt with this subject and rejected its relevance on two grounds and these are contained in the following observations of the learned Chief Justice in the judgment:-- "Mr. Maqbool Elahi Malik kept on repeating that the petitioner who was the leader of a minority party in the Assembly had to find support from members of other political parties to remain in office. This can hardly be called a novel experiment in a Parliamentary democracy. There are coalition Governments and there are Governments functioning by alliance among different political parties. It is an admitted fact that not a few members belonging to the ANP joined the Government of the petitioner but the entire party decided to form a coalition with his party. The other example cited by the learned counsel with regard to certain IJI members joining the Government after the break up of the said coalition, suffice it to say, that those members formed an independent group and joined the Government as such group. Whether such an action on their part amounted to defection is a matter still sub judice before this Court. No other example or instance was given for changing of the loyalties for political and personal gains by the members and other functionaries of the Government as alleged in the corrigendum. It was also not pointed out as to how the Government of N.-W.F.P. Could not be carried-on in accordance with the Constitution."
31. 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 prescribes 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 make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless 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 Islamic 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 the 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 suchdefections, 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 with posts and prizes."
32. The case of Humayun Saifullah Khan v. Federation of Pakistan through Secretary, Ministry of Justice and Parliamentary Affairs, Islamabad and 2 others PLD 1990 SC 599 came up before this Court against the judgment of Peshawar High Court and was decided on 18th of April, 1990, i.e., before the passing of the impugned order by the Governor. 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 appealing in the North-West Frontier Province than elsewhere. Defection of an elected representative or a group of them should not have been confused with coalition of political parties or alliances of such parties for formation of Government. Similarly, the question, whether technically it amounted to defection or whether a particular provision of the Political Parties Act was violative of the Fundamental Rights or these matters were sub judice had nothing to do with the exercise of the Constitutional power of dissolving the assembly on the ground that by such defection it had lost its representative character. The elected representatives had at all times no other capacity except to represent their electorate. This ground, as pointed out in the case of Khawaja Ahmad Tariq Rahim C.P.L.A. No.628 of 1990 (PLD 1992 SC 646) was by itself sufficient to warrant the dissolution.
33. The Constitution (Article 112) provides for an "appeal to the electorate is necessary".' The word "appeal" has a legal connotation of approaching a higher judicial forum for redress. In the Constitution it has been used in its more popular sense of "to call upon another to decide a question. Confirm one's statement or opinion". Who can better discharge the duty of confirming or reversing the representative character than the electorate itself, which happens under our Constitution to be the political sovereign. In view of such large scale defections in the Province the representative character of the renegades had become open to serious doubt. So was the democratic character of the Provincial Government, then functioning. So was its functioning in accordance with the provisions of the Constitution. In the circumstances there was no ground available for interfering with the order of dissolution and ordering restoration of the Provincial Assembly and the Cabinet.
These two appeals are accepted and the writ that issued is recalled.
(Sd.)
SHAFIUR RAHMAN, J.
NASIM HASAN SHAH, J.---I entirely agree with my learned brother Shafiur Rahman, J. That these two appeals be accepted and the writ issued by the High Court recalled as no valid ground existed necessitating interference with the order of the Governor, N.-W.F.P. Dated 6-8-1990 to dissolve the Provincial Assembly of N.-W.F.P.
I regret, however, that I cannot subscribe to the view of my learned brother S. Rahman, J. That the impugned judgment of the High Court is a nullity on account of non-observance of mandatory requirement of Order XXVIIA, Rule 1 of the C.P.C. On this particular point I am inclined to agree With the view of my learned brother Ajmal Mian, J. That the provisions of Order XXVIIA, C.P.C. Are neither designed nor intended to control or to obstruct the exercise of the Constitutional jurisdiction by the High Court and that the provisions of this rule require to be interpreted in a manner which should advance the Constitutional remedy rather than to curtail or to enchain it with technicalities. Since, however, on the merits of the case I am satisfied that there was no valid ground for interfering with the order of dissolution dated 6-8-1990 passed by the Governor I would accept these appeals on merits, rather than on the technical ground of non-compliance with the provisions of Order XXVIIA, Rule 1 of the C.P.C.
(Sd.)
NASIM HASAN SHAH, J.
NAIMUDDIN, J.---The Provincial Assembly of North-West Frontier Province (hereinafter called `the Province') was dissolved by the Governor of the Province by the order, dated 6-8-1990. The order of the dissolution of the Assembly reads as follows:-- "The Governor has given serious consideration to the situation prevailing in the,North-West Frontier Province and having done so is of the opinion that that the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary inter alia and among others for the reasons mentioned hereunder.
The usefulness and the mandate of the Provincial Assembly of North --West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horse-trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(s) prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people.
NOW, THEREFORE I, Amir Gulistan Janjua Governor of North --West Frontier Province in exercise of the powers conferred on me by clause (2)(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, with the previous approval of the President of Pakistan, hereby dissolve the Provincial Assembly of North-West Frontier Province with immediate effect; and the Chief Minister and the Cabinet have ceased to hold office forthwith.".
2. This was followed by a Press Conference by the Governor at which he gave the grounds of the dissolution -of the Provincial Assembly, which was published by the `Frontier Post' in its issue of 7th August, 1990, and it reads as follows:-- "N.-W.F.P. Governor Amir Gulistan Janjua on Monday dissolved the N.-W.F.P. Assembly and Provincial Cabinet with immediate effect on the charges of corruption, under Clause (2)(b) of Article 112 of the Constitution, reports APP.
In his written statement read out at a Press conference yesterday evening at the Governor House, he said after serious consideration of the situation prevailing in the Province he was of the opinion that the Government of the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary inter alia and among others for the reasons of widespread corruption including misappropriation of public funds and "horse- trading" change of loyalties and violation of law by the holders of representative offices for political and personal gains.
Following is the text of the Governor's statement "the usefulness and the mandate of the Provincial Assembly of North-West Frontier Province anelected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horse-trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(s)--prescribed thereunder and the law is not possible and further the members have lost the confidence of the people.
Now therefore, I, Amir Gulistan Janjua, ,Governor of North-West Frontier Province in exercise of the powers conferred on me by Clause (2)(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan with the previous approval of the President of Pakistan, hereby dissolve the Provincial Assembly of North-West Frontier Province with immediate effect and the Chief Minister and the Cabinet have ceased to hold office forthwith.
Soon after the Press Conference of the Governor, it was officially announced that Mir Afzal Khan has been nominated Care-taker Chief Minister of N.-W.F.P:'
3. The respondent No.l before us, who was then the Chief Minister of tie Province, questioned the order of the dissolution of the Assembly of the 'province in a writ petition bearing No.352 of 1990, filed by him on 19-8-1990 in Peshawar High Court, Peshawar against (1) The Governor of the North- West Frontier Province, (2) Province of the North-West Frontier (3) Federation of Pakistan, and (4) the Speaker of the dissolved Provincial Assembly. However, the respondent No.1 challenged the order of dissolution dated 6-8-1990 only. In the petition, the respondent No.l prayed as follows:- "It is, therefore, most humbly prayed that Notification dated 6-8-1990 of the Governor, N.-W.F.P.
Which has been passed with the prior approval of the President of Pakistan be declared un- Constitutional and thus illegal and of no legal effect and the same be set aside and asconsequence thereof all other steps taken by the Governor, N.-W.F.P. And the President of Pakistan in consequence thereof may also be declared illegal and as a relief the position as it existed immediately before the passing of the impugned order be restored with such other relief as may be deemed proper." (Underlining is mine for emphasis).
4. The Full Bench of 5 Judges of the Peshawar High Court heard the petition and, by a short order dated 26-9-1990, for reasons to be recorded later on, accepted the petition and declared the impugned order of the Governor as un-Constitutional, without lawful authority and of no legal effect and further declared that consequently the Provincial Assembly and the Cabinet stood restored. The Court gave the reasons for the order on 29-9-1990.
5. Being aggrieved by the judgment dated 26-9-1990/29-9-1990, the Province and the Federation of Pakistan are before us in two separate appeals.
6. We have heard Mr. Zahurul Haq Advocate, for the Province, Mr. Sharifuddin Pirzada Sr. Advocate, Supreme Court and learned AttorneyGeneral for himself as also for the Federation and Mr. Iftikhar Gillani Advocate, for the respondent No.l, at length.
7. The learned Attorney-General submitted that the impugned judgment and order of the Peshawar High Court suffered from a patent illegality inasmuch as in contravention of Order 27-A, Rule 1, C.P.C., the High Court proceeded with the hearing of the Writ Petition without issuing any notice to him as required by the said rule, although important Constitutional and legal questions were involved in the writ petition with which the Federation of Pakistan was vitally concerned.
8. Mr. Sharifuddin Pirzada, learned counsel for the Federation and Mr. Zahurul Haq, learned counsel for the Province, argued on merits of the case and also supported the learned Attorney-General in his aforesaid contention.
9. 1 propose to deal, in this short opinion, with the question whether notice under Order 27-A, Rule 1, C.P.C., was required or not and the consequence of its non-compliance, as the questions of law, and the merits of the order are being discussed by my learned brother, Shariur Rahman, J. In a separate opinion in detail and depth.
10. Before proceeding to examine the question whether notice under Order 27-A, Rule 1, C.P.C., was required to be given to the learned Attorney General in the case, it would be pertinent if 1 consider the opinion of the High Court on this point. On this question, after stating the relevant facts and quoting the Rule 1 of Order 27-A, C.P.C. The High Court observed as follows:- "... However, a point raised earlier by Mr. Zahurul Haq, in his application and later on by Mr. Maqbool Elahi Malik relating to the issue of notice to the Attorney-General needs some observations here.
Both the counsel referred to Order XXVIIA, Rule 1, C.P.C. For making it incumbent on us to issue notice to the Attorney-General. The said Rule is reproduced below: Notice to Advocate-General.--1n any suit in which it appears to the Court that (any substantial question as to the interpretation of Constitutional law) is involved, the Court shall not proceed to determine the question until after notice has been given to the (Attorney-General for Pakistan) if the question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government."
It is quite obvious from the perusal of the Rule that the contents thereof are, firstly, applicable to a suit and secondly, if we extend the general principles of C.P.C. To the proceedings before the High Court in a Constitutional petition, two functionaries are mentioned in the said Rule who are to be issued notices, namely, Advocate-General of the Province and the Attorney-General of Pakistan.
Two situations are, therefore, visualised. The Advocate-General is to be issued notice if the question of law concerns the Provincial Government and a notice shall be issued to the Attorney-General of Pakistan if the question of law relates to the Federal Government. Before us, is the question of dissolution of the Provincial Assembly and the Advocate General of the Province has been associated since the inception of this case. Furthermore, Order XXVIIA, Rule 1., C.P.C. Would normally deal with a situation where suit is filed before the Court wherein the Federation or the Province is not a party but a substantial question of Constitutional interpretation is involved concerning the Federal Government or the Provincial. Government as the case may be. In such a situation it is quite obvious that either the Advocate-General of the Province or the Attorney-General of Pakistan shall assist the Court concerned. Here before us both the Province and the Federation are arraigned as parties. Due notice has been received by them. The Provincial Government has engaged a private counsel along with the Advocate-General of the Province to whom notice was issued by the Court on 22-8-1990. Similarly the Federal Government has decided to engage a counsel who represented it before us. If the Attorney-General had decided to represent the Federation we would have been too happy to hear him as well. But we do not find it incumbent on us in the circumstances of the case to needlessly issue him a notice while he is busy in arguing similar cases before other High Courts and we were requested to wait for the conclusion of those cases in order to hear him." (Emphasis is mine).
11. An analysis of the above observations shows that the learned Judges did not find it incumbent on them to issue notice to the Attorney-General for the reasons that (i) the provisions of Rule 1, Order 27-A, C.P.C., are applicable to a suit; (ii) even if the general principles of the C.P.C. Are extended to the proceedings before High Court in a Constitutional petition, notices are to be issued either to the Advocate-General of the Province or to the AttorneyGeneral, depending on the question whether the question of law concerns the Provincial Government or the Federation of Pakistan; (iii) Rule 1, Order 27-A, C.P.C. Would deal with the situation where a suit is filed before the Court and where the Federation or the Province is not a party but a substantial question of interpretation of the Constitution is involved concerning the Federation or the Province, as the case may be; (iv) the provisions would not be attracted where the Province or the Federation, or both, are arraigned as parties; and (v) if the Province or the Federation has engaged any other counsel to represent them.
12. While quoting a relevant passage from the judgment of the High Court in para. 10 above, I have already noticed Rule 1, Order 27-A, C.P.C. Which prohibits a Court not to proceed to determine any substantial question as to interpretation of Constitutional law until after a notice has been given to the Attorney-General for Pakistan if the question of law concerns the Federal Government. It is not questioned before us that it is a mandatory requirement and not directory: However, we may refer to `Craies on Statute Law, 7th Edition, page 266',where the learned author has stated the rule as follows: "(vi) Statutes giving jurisdiction to Courts are usually absolute.
As a general rule, statutes which enable persons to take legal proceedings under certain specific circumstances must be accurately obeyed notwithstanding the fact that their provisions may be expressed in merely affirmative language. Thus under section 2 of the Summary Jurisdiction Act, 1837, after the hearing by a justice of peace of any summary information, either party could, if dissatisfied ... Apply in writing within three days ... To the said justice to state and sign a case selling forth the facts. In Edward v. Roberts (1891) 1 QB 302, the appellant neglected to get the case stated within the three days prescribed, and it was held, in consequence that the Court had no jurisdiction to hear the appeal. See also Peacock v. R (1858) 27 LJCP 224; Aspinal v. Sutton (1894) 2 QB 349."
Reference may also be made to a judgment of this Court in the case of Atta Muhammad Qureshi v.
Settlement Commissioner, Lahore Division, Lahore PLD 1971 SC 61, wherein Sajjad Ahmad Jan, J., who wrote the opinion on behalf of the Full Bench of this Court, while considering whether "subsection (5)(ibid) contains an absolute command of the Legislature because it is couched in negative language, prohibiting the taking of an adverse action against any person under section 20 without giving him an opportunity to show cause against it", observed as follows:- "It is well-settled that the neglect of the plain requirements of a statutory enactment, which prescribes how something is to be done, will invalidate the thing being done in some other manner if the enactment is absolute but not if it is merely directory. The real question which thus arises for consideration is when an enactment is to be considered absolute and when as merely directory.
It is not possible to lay down 4 general rule of universal application in this behalf, but the one which is suggested by reported authorities in this connection is the affirmative or negative character of the, language in which the provision is couched. If it is negative, that is to say, if the statute enacts that certain action shall be taken in a certain manner and in no other manner, -it has been held that the requirements are absolute and that neglect to attend them will invalidate the whole procedure. If, on the other hand, the language is affirmative, it may be considered as a directory provision. Nonetheless, it appears that in several reported English cases, it has been held that an enactment prescribing the formalities which are to be observed for validating an action, are not absolute, although expressed in negative or prohibitory language. In Mayor of London v. R. (1848) 13 QB 30, it was stated that `the words negative and affirmative of a statute mean nothing. The question is whether they are repugnant or not to that which before existed. That may be more easily shown when the statute is negative than when it is affirmative, but the question is the same.
In Liverpool Borough Bank v. Turner (1861) 30 UCH 379, Lord Campbell observed as follows:- `No universal rule can be laid down as to whether a mandatory enactment shall be construed directory only or obligatory with an implied nullification for disobedience. It is the duty of the Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed'."
In Howard v. Bollington (1877) 2 PD 203 Lord Penzance after citing this dictum of Lord Campbell added as follows:- "I believe as far as any rule is concerned you cannot safely go further than that. In each case you must look to the subject-matter, consider the importance of the provision and relation of that provision to the general object. To be secured by the Act and upon review of the case in that aspect, decide whether an enactment is, what is called, imperative or only obligatory."
"One other principle which has been enunciated in this behalf is that as a general rule, statutes which enable persons to take legal proceedings under certain specified circumstances, must be accurately obeyed, nothwithstanding the fact that the provisions thereof are expressed in merely affirmative language."
Then, the learned Judge referred to a passage from Craies, which has already been quoted by me, and further proceeded to observe:- "Bearing these principles in mind, I have reached the conclusion that subsection (5) of section 20 of the Act is mandatory in character and placed a limitation on the jurisdiction of the revising authority not to make any adverse order against a person without giving him opportunity to show cause against it. If such an order is made without fulfilment of this prerequisite, it would certainly lack jurisdiction."
13. It will be seen that Rule 1 (ibid) is couched in negative terms i.e. That `the Court shall not proceed to determine the question', and, therefore, is mandatory 'and must be followed, if attracted.
14. This brings me to the questions, what is the status of AttorneyGeneral or Advpcate-General under our Constitution and, what duties and functions are assigned to them? In this regard reference is to be made to Article 100 of the Constitution so far as Attorney-General is concerned, and Article 140, so far as Advocate-General is concerned, which provide for their appointing authorities, their qualifications, duration of offices and duties, etc. It may be useful if I quote Article 100 of the Constitution, which concerns Attorney-General for Pakistan. It reads as follows:- "100.--(1) The President shall appoint a person being a person qualified to be appointed a Judge of the Supreme Court, to be the Attorney-General for Pakistan.
(2) The Attorney-General shall hold office during the pleasure of the President.
(3)It shall be the duty of the Attorney-General to give advice to theFederal Government upon such legal matters, and to perform such other duties of a legal character, as may be referred or assigned to him by the Federal Government, and in the performance of his duties he shall have the right of audience in all Courts and tribunals in Pakistan.
(4)The Attorney-General may, by writing under his hand addressed to the President, resign his office."
15. It will be seen from clause (3) of the above-quoted Article that it is the duty of the Attorney- General to give advice to the Federal Government upon such legal matters and perform such other duties of legal character as may be referred or assigned to him by the Federal Government. It is, therefore, clear that he has to give advice to the Federal Government and, under Article 57 of the Constitution, speak in the National Assembly, without voting right, on legal matters including framing and enactment of laws and interpretation thereof, and the Constitution. Besides, under Rule 1 of Order 27-A, C.P.C., he has to appear and advise and assist the Court so that it could have expert Constitutional and legal advice. Therefore, it is made incumbent upon Court to hear him in a case in which substantial question of Constitutional law is involved, before determining such question. But, in such a case a notice to him K is not notice to the Federation and vice versa, unless it is so provided by law. He has two capacities: (1) where the Federal Government directs him to appear in a case, and carry out instructions, whatever they may be, and (2) as advisor, under the Constitution or law to advise as to the interpretation of Constitution or law. In the performance of such duty, he is not supposed to act on the advice of the Federation. He has _ to honestly guide the Federal Government and the Federal Legislature on the questions of law. Similarly, he has to advise Courts as to interpretation of Constitutionals law pursuant to a notice under Order 27-A, Rule, 1, C.P.C. He cannot be said to have performed his duty honestly and duly if he does not give his frank opinion on such Constitutional questions. Therefore, counsel representing parties may interpret a provision of Constitution or law in the best interest of their respective clients even if they are Federation of Pakistan or the Province, but, as an Attorney-General or as an Advocate-General; when he gives advice to the Federal Government or speaks in the Parliament or a Court, on a question of law, he is not supposed to keep the interest of his client, but advise the Federal Government, or Parliament. Or a Court of law; as the case may be, to the best of his ability, independently and in accordance with the Constitution.
16. Therefore, the learned Judges in the High Court, when they say that the Federation has already engaged a counsel to represent them, were unmindful of the duty which is cast on the Attorney- General by law to assist the Court in reaching a correct decision on a Constitutional question.
17. It is unfortunate that the High Court being itself cognizant. Of the fact that the Attorney-General was appearing, on the date of hearing of the Writ Petition No.352 of 1990, in a similar case involving constitutionality of the dissolution of the National Assembly in Lahore High Court, proceeded without H waiting for him. We may say that the learned Judges in the High Court have relied on the fact that the Attorney-General had notice of these proceedings but what the law required was that the Court should give notice. It is admitted fact that no such notice was given and, when no notice is issued, it cannot be said that he avoided it. If the Attorney-General was given notice of the petition, calling upon him to appear on the. Given date, he would have sought accommodation from either Court or arranged his appearance in such a' manner that he could appear in both the Courts i.e. Lahore High Court, Lahore and Peshawar High Court, Peshawar. Indeed without such a notice to him, the Court lacked jurisdiction to proceed further in the matter to determine the Constitutional questions.
18. 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 of Hussain Bakhsh v.
Settlement Commissioner, I Rawalpindi and others PLD 1970 SC 1, that the provisions of Code of Civil Procedure apply to such proceedings. It is observed therein as follows:-- "... As regards application of the provisions of the Code in proceedings before High Court, their Lordships of the Privy Council in Sahitri Thakurani v. Savi AIR 1921 PC 80 observed:- The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original jurisdiction, to which the Code is not to apply.
The underlining in the above quotation is mine: The words underlined clearly indicate that the provisions of the Code, other than the specifically excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil. Matter, whatever may be the nature of that jurisdiction.
The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction.
Obviously, the jurisdiction under that ' Article pertains to civil as well as other matters.
A civil proceeding in a Court of civil jurisdiction is governed by the. Code of Civil Procedure (see its preamble). By virtue of section 117 of the Code, a civil proceeding in a High Court is also governed by the ,provisions of the Code other than the provisions which are specifically excepted. A proceeding under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High, Court's original civil jurisdiction and section- 114 of the Code conferring power to review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under said section 114 if that section is otherwise applicable:' '
It is regrettable that the High Court did not take notice of the above case.
19. In the case of Inayat Ullah and others v. MA. Khan and others PLD 1961 (W.P.) Lah. 536, a Division Bench' of the Lahore High Court held that the provisions of Order 27-A, Rule 1, C.P.C., are applicable to proceedings other than the suits in these words:- "It is true that as worded, the rule relied upon by the learned. Advocate-General would appear to apply to suits only but if the provisions of section 141 of the Code of Civil Procedure are kept in view it becomes clear that Order XXVIIA of the Code was fully applicable to the proceedings before Mr. S.M. Tirmizy as it would have been if the point with regard to the validity of the Ordinance had been taken up in a suit. It follows, therefore, that the learned District Judge has given his decision that the Ordinance was ultra vires the Governor of West Pakistan without complying with the provisions of law, because the question of validity of an enactment is covered by subsection (1) of section 205 of the Government of India Act, 1935, and Order XXVIIA, Rule 2 of the Code of Civil Procedure was applicable"
20. However, the High Court, when it says that notice to the AttorneyGeneral will be necessary only when the Federation is not a party to a suit and a substantial question of law arises in the case between parties, or that the provisions would not be attracted where the Province or the Federation, or both, are arraigned as parties, or that if the Province or the Federation has engaged any other counsel to represent him, has read something in the rule which is not there and they remained unmindful of the independent functions and duties of the Attorney-General, as stated hereinbefore.
21. The necessity of incorporation of the provisions in, the nature of Order 27-A, Rule 1, were pointed out by Gwyer, C.J., in the case of United Province v. Mst. Atiqua Begum AIR 1941 FC 16 and, accordingly, Order 27-A was inserted by the Civil Procedure (Amendment) Act, 1942 as a result of the invaluable opinion expresses) by Gwyer, C.J., in the matter, which brought out distinction between the Rule 1 and Rule 2 of Order 27-A, C.P.C.
22. A similar question arose in the case of Heman Sandal v. State of Bombay AIR 1951 Born. 121, wherein Chagla, CJ., who wrote the opinion of the Division Bench, observed in para. 7 of the judgment as follows:- "7. A minor question has also been referred to us and that is the proper interpretation of Order 27-A, Civil P.C. That is a new provision and it was recently embodied in the Code. In this petition the State of Bombay was a party and the procedural question that we have to decide is whether although the State of Bombay was a party to this petition, it was incumbent upon the Court to give notice to the Advocate-General. There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the Constitution and Rule 1, Order 27-A makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State and to the Attorney-General if it concerns the Union Government. As the rule stands, it is clear and explicit and as 1 said before mandatory and it makes it incumbent upon the Court in every suit where such a question arises to give notice to the Advocate General, or the Attorney- General, as the case may be. What is urged before us that Rule 2 makes it clear that the object of the legislature in providing Rule 1 was that the Advocate-General, or the AttorneyGeneral should have notice only in cases where the State was not a party, the contention being that it is the State that should have notice and not the Advocate-General or the Attorney-General as such, and that the reason for giving the notice to the Advocate-General or the Attorney-General was that they represented respectively the State and the Union Government and therefore, it is contended that it would be futile and useless to give notice to the Attorney-General or the Advocate-General when the Union Government or the State were already parties to the suit or proceedings. For this purpose our . Attention is drawn to Rule 2 which provides that the Court may at any stage and the State or the Union as a party whereupon receipt of notice under Rule 1 or otherwise the Advocate-General or the Attorney-General applied for the addition of the State or the Union as a party, and what is argued is that Rule 2 suggests that. The object of giving notice under Rule 1 is to make the State or the Union a party to the suit ore proceeding, and if the State or the .Union is already a party then no object can be served by giving notice to the Advocate-General or the Attorney-General. In our opinion, as the Advocate-General has rightly pointed out, there may be cases where the Advocate-General may he required although the State is a party try the suit . ....It is also known that the Advocate-General is the leader of the Bar. ' He not only represents the State, but he also represents the Bar. A question may arise where there may be a conflict between the rights and privileges of the members of the Bar and the rights of the State and in such cases it would be very desirable not only to have the State before the Court, but also the Advocate-General in his capacity asAdvocate-General, and therefore, we do not see any reason why we should read in Rulethat the Advocate-General or the Attorney- I General has to be given notice merely as the mouthpiece of the: respective Governments. They have independent rights and independent functions to discharge and as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation. The Advocate-General has also drawn our attention to ''Rule 3 Which deals with costs and which provides that where under Rule 2 Government is added as a defendant in the suit, the Advocate 'General or the Government shall not be entitled to or liable for costs. This seems to suggest that the draftsman of the rule contemplated thateven where the State or the Union was added as a party to the suit the Advocate-General may still appear and therefore, the question of l costs had to be dealt with both with regard to the State and the Advocate-General. It may be that in majority of cases the matter may be academic and not of much importance, but we accede to the argument of the Advocate-General that we should not put any limitation upon rule 1 when the Legislature did not choose to do so. I We, therefore, hold that in every case which involves a question referred to in Rule 1 notice must be -given by the Court to the Advocate-General or the Attorney-General, as the case may be:'
23. This question also came up for consideration before a Division Bench of Lahore High Court in another case, namely, Haider Automobiles Limited v. Pakistan PLD 1967 Lah. 882, wherein at page 906 of the Report, it was observed as follows:- "Under rule 1 the Advocate-General of the Province or the AttorneyGeneral of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby the Government does not become a party to the case. It is only under Rule 2 that the Government is to be added as a party, if necessary."
24. 1 have no doubt that the questions involved in the petition were of Constitutional law as the prayer in the writ petition, quoted hereinfore, shows that not only the constitutionality of the order of the Governor dated 6-8-1990, was questioned in the writ petition, but also the constitutionality of the other steps taken by the Governor and the President of Pakistan were sought to be declared illegal. Therefore, interpretation of Constitutional provisions were clearly involved in the writ petition concerning Federation. Even otherwise, it is nobody's case that the writ petition before the High Court did not involve questions as to the interpretation of Constitution. The High Court indeed decided them.
25 Mr. Iftikhar Gillani, learned counsel for the respondent No.l also raised the question that the approval of the President was illegal because, firstly, it was not in writing and, secondly, it was given on 5th August, 1990, without the advice of the then Prime Minister. This again involves question of interpretation of the Constitution. However, I would not like to go into this question as it is being dealt with by my learned brother, Shafiur Rahman, J., in detail. But, in passing I would say that on ordinary plain of law of .Pleadings, the petitioner did not raise any such question in his petition. On the contrary, in para. 4 of the petition, he has stated as follows:- "4. That no untoward incident took place in the Province after the passage of the Budget 1990-91 by the Assembly till the evening of 6-8-199(1 when in most unceremonious manner Amir Gulistan Janjua the Governor of the Province while addressing a Press Conference in the Governor House announced the dissolution of the Provincial Assembly of N.-W:F.P. And also the dismissal of the Government of the petitioner through an order No. Lcgis.5(1)/77 of 6-8-1990 (Annexure `A') purportedly under Article 112 of the Constitution of Islamic Republic of Pakistan which action he had taken with the prior approval of the President of Pakistan."
(Emphasis supplied by me).
26. The prior approval of the President is also noticeable as an admission in the prayer clause, validity whereof has not been questioned in the petition.
27. Therefore, due to non-compliance of a mandatory provision of the Constitution as to the notice to the Attorney-General, the whole judgment is rendered a nullity.
28. On merits of the case also the appeals are entitled to succeed, for, the grounds on which the dissolution of the Assembly is based are identifiable and have nexus with the powers exercisable under Article 112(2)(b) of the Constitution. Further, I have no reasons to doubt the facts on which the grounds are based.
29. In my opinion, therefore, the judgment was liable to be set aside and, accordingly, the appeal was entitled to be allowed, and was allowed by the short order of even date. These arc my reasons for the same (Sd.)
NAIMUDDIN, J.
ABDUL SHAKURUL SALAM, J.---The appeal was allowed by majority decision vide short order, dated 6-11-1991. Detailed reasons were to follow.
Having had the privilege of going through the reasons recorded by my learned brother Mr. Justice Shaliur Rahman, 1 regret to give my own reasons for dismissing the appeal.
1. The appeal is against the judgment of the five learned Judges of the Peshawar High Court by which they held that the order of the dissolution of the N.-W.F.P. Assembly by the Provincial Governor was illegal and the four learned Judges ordered restoration of the Assembly.
2. The star argument is that the order under appeal is bad because no notice was issued to the Attorney-General as required by Order XXVIIA of C.P.C. The provision is to the following effect:- ---In any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the. Question of law concerns the Federal Government and to the Advocate-General of the Province if the question of law concerns the Provincial Government."
3. It is undisputed that notice was given to the Federal Government and the Provincial Government.
On behalf of the Province, the Advocate-General, N.-W.F.P. Appeared. On behalf of the Federation of Pakistan, Mr. Maqbool Elahi Malik, Advocate-General of Punjab appeared. The contention is that the Attorney-General himself should have been .Issued notice which was not done and that his position as an Attorney-General is distinct from that of being a principal law officer of the Federal Government. Judgment of the Federal Court of India `United Province v. Mst. Aliqa Begum and others' AIR 1941 FC 16 was cited to show that it was in view of the observations therein that the aforequoted provision was introduced by way of amendment in the C.P.C.
4.I regret to say that the vehemence with which the argument was pressed as if it were decisive of the appeal was not called for in these proceedings for variety of reasons. Firstly, notice is issued to inform. It is unbelievable nor asserted that the learned Attorney-General was not informed or was not aware of the proceedings in the High Court. Federal Government was a party to the proceedings. It would not have engaged Mr. Maqbool Elahi Malik, Advocate-General Punjab to represent it without consultation of its principal law officer, the Attorney-General. If it were to be done, it would show lack of confidence in the Attorney-General and most embarrassing for him.
Secondly, Mr. Maqbool Elahi Malik sought adjournment in the High Court for appearance of the Attorney-General. How could have done so without being authorised by the Attorney-General?
Thirdly, the provision relied upon is procedural in nature for ordinary civil litigation. No doubt it is followed while I Q dealing with Constitutional petitions by the superior Courts but by no means it controls the exercise of Constitutional jurisdiction by the High Courts and the Supreme Court. Mr. Justice B.Z. Kaikaus of the Supreme Court said in Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382 at pages 399-400 and I quote:- " I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it is essential to comply with them on the ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from the system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to the extent. The ideal must always be a system that gives every person what is his."
5. The above has not been questioned for more than a quarter of a century. This Court is functioning for quite some time to see to the substance of the controversy and resolve it, rather than throw away the cases on account of peripheric defects. There is no justification for departure for the, normal rule or practice of this Court. Therefore, I am of the clear view that the learned Attorney-General notwithstanding no formal notice, had the notice of the proceedings in the High Court and he could have appeared or himself asked for accommodation if he intended to appear.
Non-issuance of formal notice in the circumstances cannot be made into a fetish to annul the proceedings dealing with high Constitutional issues as to whether the Provincial Assembly, was lawfully dissolved by the Provincial Governor.
6. AS regards the actual order of dissolution of the N.-W.F.P. Assembly by the Governor, the stand taken in the High Court was that he did so under the amended Article 112(2) of the Constitution with the prior approval of the President as required, which was done on 5th August, 1990. The dissolution order is dated 6th August, 1990. When it was pointed out that on 5th of August, 1990, the Prime Minister was in office and she had not advised the President to accord approval for dissolution of the Provincial Assembly, the stand was changed and it was said that the approval was obtained, after the National Assembly had been dissolved, Prime Minister had vacated office and the Care- taker Prime Minister had taken over. In support of the contention, affidavit of the Secretary to the President was filed in this .Court. Now, dissolution of an Assembly is a serious matter. If "the situation had arisen in which the Government of the Province cannot be carried on in accordance with the provisions .Of the .Constitution" as required by aforementioned Article, there must be some thing in writing which details that situation, decision to dissolve, and that is put up before the President for approval. Governments are not run verbally. Exercise of high Constitutional authority in such a grave matter -as dissolution of an elected Assembly by an appointed Governor is not undertaken without much thought, care and in black and white before dissolution is announced. What appears to have happened is that the President decided to dissolve the National Assembly and simultaneously the Provincial Assemblies. The Governor dissolved the Provincial Assembly. He had made no decision of his own. He carried out what the President desired or was directed to do. This is not the way the Constitution authorises the Governor to act in this behalf.
7. A word may also be said about the amended provision Article 112(2) of the Constitution under which the power to dissolve the Assembly was purportedly exercised by the Governor. This was introduced along with the power of the President to dissolve the National Assembly under Article 58(2)(b). As I have said in C.P. 628 of 1990 (Khawaja Ahmad Tariq Rahim v. Federation of Pakistan and another) PLD 1992 SC 646 these amendments were adopted when the Chief Martial Law Administrator/President had made the amendments in the Constitution and provided that he shall lift Martial Law on a date to be appointed by himself. Which Assembly would not comply and let the Martial Law hang like Sword of Democles on the heads of the people. These amendments were made for the person of the President and his appointees. On his demise these lapsed. For detailed reasons reference may be made to my judgment in the aforequoted case and read as part of this order.
8. The learned Judges of the Peshawar High Court with full application of mind exercised their discretionary jurisdiction in annulling the dissolution of the elected Assembly of the N.-W.F.P. The Constitution is basicallY federal. I do not think that this Court is justified to interfere in the order of the High Court.
9. A word may be said about the order of restoration by the four learned Judges with which one learned Judge did not agree. It was urged that in the precedent case of Federation of Pakistan v.
Haji Saifullah PLD 1989 SC 166 the National Assembly was not restored. Nor the present National Assembly dissolved by the President has been restored. But the distinction is that neither in the earlier case nor in the recent one, the dissolution was challenged by the Speaker of the National Assembly as was done in Maulvi Tamizzuddin's case PLD 1955 FC 240 nor by the Leader of the House. If the Presiding Officer of the House nor its Leader challenges the dissolution, rather prefers to go to polls, there is no justification to restore the House, its majority having opted to accept the dissolution. But in the case in hand, the Leader of the House had challenged the dissolution of the Assembly and sought its restoration promptly. Therefore, the learned Judges who ordered restoration acted rightly.
10. In view of what has been stated above, I do not think that this appeal has any merit. It is, therefore, dismissed with costs throughout.
ABDUL OADEER CHAUDHRY, J.---1 entirely agree with the opinion recorded by my learned brother (Mr. Justice Ajmal Mian) in paras. 1 to 28 of the judgment. I also agree that the majority judgment of the High Court is unexceptionable and is to be maintained. I also subscribe to the view of my learned brother that an amendment may be made for early decision of such matters.
2. However, as regards the relief, in my humble view, the majority judgment of the Peshawar High Court be maintained in its entirety. The doctrine that `People have spoken' would not be attracted in the given circumstances so that a wrongful action may be perpetuated. In the fresh election though the people have spoken but the people have been forced to speak at the cost of tax- payers involving huge expenditure of public exchequer. They must speak through the Constitution and not otherwise. A period has been prescribed in the Constitution for an Assembly. The Governor has limited powers to dissolve the Assembly in the exigencies mentioned in the Constitution. The order of the Governor being unconstitutional, it cannot be affirmed through the seal of the Court. A fair, just and equitable relief cannot be denied otherwise an unconstitutional order would be treated as legal simply by lapse of time. A successful party will be non-suited merely because fresh elections have been held on account of unsustainable action. In the present case, the Peshawar High Court had restored the Assembly before the election process had started. In Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 21, it was held that `in case Assembly is not revived mere declaration would not solve the purpose. The revival of the Assembly is natural legal consequence once the order of dissolution is struck down. An important organ of the State was dissolved. In a Parliamentary and Federal System, an Assembly is the most important body. People of the Province have expressed their collective will. A wrong has been done without any legal justification. It is a matter of Constitutional principle that when rights have been transgressed, the remedy must- be provided. When a legal injury is caused by reason of violation of any Constitutional right, then a relief which meets the ends of justice cannot be refused. It cannot, therefore, be accepted a sound principle of jurisprudence that a dissolved Assembly cannot be restored.
3. An objection has been raised during the course of hearing that the Members of the new Assembly have not been made a party to the present proceedings, therefore, no order adverse to their interest could be passed. When the proceedings against the dissolution of Provincial Assembly were initiated before the Peshawar High Court, these members were not a necessary party. The High Court had restored the Assembly and an appeal against the judgment of the High Court was pending in this Court. They may have become a necessary party after the election, but they did not choose to make any application so that they may also be heard by this Court. Neither the Speaker nor any of the Members has moved this Court for impleading them as a party. These members fully knew that the High Court had restored the Assembly but they did not come forward to seek any relief from this Court. As such, the relief cannot be denied on this technical objection due to the conduct of these persons themselves. 1, therefore, maintain the order of the Peshawar High Court and restore the Assembly.
AJMAL MIAN, J: --I havc had the advantage of reading opinions of my learned brethren Shafiur Rahman and Naimuddin, JJ. But with all due reverence to them, 1 am unable to agree with the same. Hence I am recording my separate opinion.
The above two appeals are with the leave of this Court and are directed against the common judgment dated 29-9-1990 passed by a Full Bench of the Peshawar High Court in Writ Petition No.352 of 1990, filed by respondent No.l, challenging the Notification dated 6-8-1990, hereinafter referred to as the dissolution order, issued by the Governor of N: W.F.P. In exercise of the powers contained in Article 112(2) of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, dissolving with immediate effect the Provincial Assembly of N: W.F.P., hereinafter referred to as the Provincial Assembly, and consequently the Provincial Cabinet also, allowing the same and declaring the impugned order of dissolution of the Provincial Assembly and the dismissal of the Provincial Cabinet thereto as ultra vires of the Constitution, without lawful authority and, therefore, of no legal effect and directing that the Provincial Assembly and the Cabinet shall stand restored.
2. Civil Appeal No.1238 of 1990 has been filed by the Federation of Pakistan through the Secretary, Ministry of Law, Justice and Parliamentary Affairs, and the Secretary to the Federation of Pakistan, Ministry of Interior; whereas, Civil Appeal No.1239 of 1990 has been filed by the North-West Frontier Province through its Chief Secretary. In both the above appeals, the above judgment of the Peshawar High Court has been impugned.
3. Leave to appeal was granted to consider the important Constitutional questions of public importance involved in the above appeals. Since the above two appeals are directed against a common judgment and as they involve common questions of facts and law, I intend to dispose of the same by this common judgment.
4. Before touching upon the contentions raised by the learned counsel for the parties, it may be pertinent to state the facts briefly. It seems that the dissolution order was gazetted and a copy thereof was forwarded inter alia to the Members of the Provincial Assembly. It may be pertinent to reproduce the same, which reads as follows:- "ORDER No. Legis.4(1)/77: --WHEREAS a situation has arisen in which the Government of the North-West Frontier Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary; NOW, THEREFORE, in exercise of the powers conferred by sub-clause (b) of clause (2) of Article 112 of the Constitution of the Islamic Republic of Pakistan, 1, Amir Gulistan Janjua, Governor of the North- West Frontier Province, in my discretion and with the previous approval of the President, hereby dissolve the Provincial Assembly with immediate effect, and consequently, the Provincial Cabinet shall also stand dissolved.
(Sd.)
Amir Gulistan Janjua Governor of North-West Frontier Province."
5. It may be noticed that the above dissolution order did not contain the grounds on the basis of which the Governor formed the opinion that the Government of N.-W.F.P. Could not be carried on in accordance with the provisions of the Constitution and an appeal,to the electorate was necessary.
However, it may be mentioned that the dissolution order which was circulated to the Press in the evening of 6-8-1990 contained the grounds. Be that as it may, respondent No.l, who was a Member of the dissolved Provincial Assembly and was also the Chief Minister of the dismissed Cabinet, filed aforesaid Constitution Petition on 19-8-1990. In the above petition, respondent No.l arrayed the following as respondents Nos.1 to 4, respectively:- "(1) The Governor, N.-W.F.P.
(2) Province of North-West through Chief Secretary, N.-W.F.P.,Peshawar.
(3) Federation of Pakistan through:
(i) Secretary, Ministry of Interior, Government of Pakistan, Islamabad.
(ii) Secretary, Ministry of Justice, Law and Parliamentary Affairs.
(4)Speaker, Provincial Assembly of N.-W.F.P., Assembly Secretariat, Peshawar."
6. The above Constitution Petition came up for Katelia Peshi on 21-8-1990 when it was admitted for regular hearing and 9-9-1990 was fixed as the date for regular hearing. Notice was also ordered to be issued to the Advocate-General, N.-W.F.P. On the latter date when the above Constitution Petition came up for hearing, Mr. Zahoorul Haq, learned counsel for respondent No.2 i.e. Provincial Government requested for adjournment which was acceded to and the case was adjourned to 18- 9-1990 with the observation that no further adjournment would be granted and that the other respondents be immediately served with the notice for the above date.
7. It appears that on the above date, namely, 18-9-1990 when the above Constitution Petition came up for hearing, respondent No. 2 filed a written statement along with an application containing preliminary objections with regard to the competency of the writ petition. In the written statement, it was averred that the copy of the dissolution order annexed to the petition was not the copy of the dissolution order which was signed by the Governor, but factually the dissolution order which was signed was a different order, copy of which was annexed as Annexure `R-1'. It was further averred that the above order was also published in the Daily English Newspaper `Frontier Post', dated 7-8- 1990, a cutting of which was annexed as Annexure `R-2'.
He also filed C.M.A. No.370 of 1990 under Order XXVIIA, Rule 1 read with section 151, C.P.C. Praying therein that since the writ petition involved a substantial question as to the interpretation of the Constitution and law involving Provincial Government and the Federal Government, notice to the Attorney-General for Pakistan was imperative in whose absence the Court shall not proceed to determine the question within the meaning of the above Order XXVIIA, Rule 1. The above application was dismissed on the same date of hearing on the ground that as the Federation of Pakistan was a party to the proceedings, no separate notice under the law was required to be issued to the Attorney-General and if he so chooses, he may represent the Federation in the case.
8. It may also be stated that the Registrar, Peshawar High Court, received a copy of the Corrigendum dated 6-8-1990 with a covering letter informing him that a corrigendum had been issued to the impugned notification bearing same number dated 16-9-1990. The above corrigendum reads as follows:- "The usefulness and the mandate of the Provincial Assembly of North West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horsetrading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(s) prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people." .
It may be pertinent to point out here that the above corrigendum is a verbatim copy of the above Annexure `R-1', which was annexed to the written statement of respondent No.2 referred to hereinabove in para. 7.
9. After that, the case came up for hearing on 22-9-1990 when arguments f the counsel for respondent No.l were concluded. At the request of Mr. Maqbool Elahi Malik, learned counsel appearing for the Federal Government, it was ordered that his arguments would be heard on 24-9- 1990 on account of the fact that he had sore throat. It was also ordered that the arguments of Mr. Zahoorul Haq, learned counsel for respondent No.2, would be heard on 23-9-1990. It seems that on the latter date, Mr. Zahoorul Haq made the following statement as to the date of approval accorded by the President to the order of dissolution of the Provincial Assembly, which was brought on record as Exh.H.C./1:- "The Advocate-General, N.-W.F.P. Was asked to contact ,_ the Governor, N.-W.F.P to apprise this Court whether something in writing is available to show the approval of the President with regard to the dissolution of the Provincial Assembly.
Mr. Zahoprul Haq, counsel representing the Provincial Government, in reply has stated that he did contact the Governor on telephone after the Advocate-General was directed to do so and the Governor informed him that on the evening of 5th of August, 1990 he went to Islamabad taking along with him a rough draft, met the President who approved the order which was announced on 6th of August, 1990, in the Governor House at Peshawar."
10. Mr. Zahoorul Haq partly argued the case on 23-9-1990 and partly on 24-9-1990. Mr. Maqbool Elahi Malik, learned counsel for the Federation, also argued the case to some extent on 24-9-1990 and since his arguments were not concluded, the case was adjourned to 25-9-1990. On the latter date, Mr.Maqbool Elahi Malik submitted an application, stating therein that the Court had rejected previously the application of notice to the Attorney- General for Pakistan under Order XXVIIA, C.P.C., and requested that the learned Attorney-General be allowed audience in the Court and the case be adjourned for a week. However, the above application was declined and the arguments of Mr. Maqbool Elahi Malik were concluded and the case was reserved for judgment, which was announced on the following day in the above terms. One of the learned Judges of the Full Bench recorded his dissenting note.
11. The learned Chief Justice, who rendered the leading majority judgment, opined that since the notification which was gazettes and which was received by respondent No.l and the other Members of the Provincial Assembly, did not contain the grounds, the Writ Petition could have been allowed on the above short ground. However, in the interest of justice. He examined the case on merits on the basis of the grounds contained in the above corrigendum. After referring to the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166, the case of Khawaja Sharif v. Federation of Pakistan and others PLD 1988 Lahore 725, and the case of Muhammad Anwar Durrani v. Province of Balochistan and others PLD 1989 Quetta 25, lie concluded that the above authorities laid down the following propositions of law:- "(i) Once this Court assumes jurisdiction to adjudicate the matter before it, the justifiability of the issue raised before it is beyond question, (ii)the opinion of the President under Article 58(2)(b) of the Constitution and that of the Governor under Article 112(2) of the Constitution for the exercise of the discretionary powers to dissolve the legislature has to be formed on objective grounds having nexus with the conditions laid down for the exercise of such powers, and (iii)the grounds forming the opinion for the exercise of the aforesaid discretion must not only be related to the conditions laid down in the Constitution but should not be vague, general or devoid of material particulars."
He also referred to the relevant passage from the judgment of Shafiur Rehman J. In the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (supra). He finally concluded as follows:- (I)That the Court is entitled to test the impugned order on the touchstone laid down in the case of Haji Muhammad Saifullah Khan (supra).
(ii)That the respondents had failed to produce any document in the form of a summary or draft of the dissolution order itself which was communicated to the President for his approval. He further opined that enough material was not placed before the Court to prove that prior approval of the President, which was an essential prerequisite for dissolving a Provincial Assembly, was ever obtained; secondly, assuming that the same was obtained, the. Approval was not accorded by the President on the advice of the Prime Minister; (iii)That none of the counsel for respondents Nos.2 and 3 was able to provide the Court with concrete information to substantiate the grounds contained in the corrigendum and that the three documents placed before the Court (Annexures R-2, R-3 and R-4) had no nexus with the same and that the same were general and vague.
(iv)That the dissolution of the Provincial Assembly was not warranted by the provisions of the Constitution and was ultra vires of the same.
(v) On the question of notice under Rule 1 of Order XXVIIA, C.P.C. It was held that, firstly, the requisite notice was issued to the Advocate- General as the impugned order was passed by the Governor and it related to the Provincial matters; secondly, notice under the above provision will normally deal with a situation where a suit is filed before a Court where the Federation or a Province is not a party and a substantial question of Constitutional interpretation is involved and since the federation and the Province were arraigned as parties and as they were represented by the counsel, it was not necessary to have issued a notice to the Attorney-General; and thirdly, that if the Attorney-General had decided to represent the Federation, the Court would have been too happy to hear him as well.
12. Mr. Aziz A. Munshi, who has appeared in the above appeals in dual capacity i.e. On behalf of the Federation and in response to a notice issued by this Court as the Attorney-General, has vehemently urged that since the High Court had not served the mandatory notice under Order XXVIIA, Rule 1, C.P.C. On him as the Attorney-General in spite of the fact that request in that connection was made twice, the impugned judgment cannot be sustained on that ground alone.
Mr. Sharifuddin Pirzada, learned senior counsel, who has. Also appeared for the Federation, to re- inforce the above submission has urged that an Attorney-General in fact acts in three different capacities, namely, (i) on behalf of the Federation as the Principal Law Officer, (ii) as an intervenor to safeguard the public interest, and. (iii) as an amicus curiae in response to the Court notice.
According to him, Order XXVIIA, Rule 1, C.P.C. Envisages a mandatory notice to the Attorney-General in his capacity referred to in the last category and not as the representative of the Federation. His further submission was that non-service of such notice would vitiate the proceedings. Mr. Zahoorul Haq, learned counsel for the Provincial Government, also submitted that a notice under the above provision of the C.P.C. Was mandatory.
On the other hand, Mr. Iftikhar Gilani, learned counsel appearing for respondent No.l-, has contended; firstly, that Order XXVIIA, Rule 1, C.P.C. Is applicable to a suit and not to a Constitution Petition, and secondly, that even if it is to be held that the same is applicable to a Constitution Petition, a notice is not. Mandatory as it is for the Court concerned to decide, whether a case involves any substantial ,question as to the. Interpretation of Constitutional law and not for the parties or the Attorney-General, his further submission was that since the Constitutional question involved in the ,present case already stood authoritatively decided by this Court in the case of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (supra), besides the two judgments of the Lahore and Balochistan High Courts in the case of Khawaja Sharif v.
Federation of Pakistan and others and in the case of Muhammad Anwar Durrani v. Province of Balochistan and others, respectively (supra), the High Court was justified in declining the request for issuance of notice to the Attorney-General made by the learned counsel for the Federationand the Provincial Government, and, thirdly, the requisite notice was in fact served on Advocate- General, N.-W.F.P.
13. In order to ascertain the legislative intent for enacting a particular statute, the purpose for which the same is enacted is a very pertinent factor which is to be kept in view while construing a particular. Provision of a statute. In this regard, it may, be pertinent to quote para. 161 from Statutory Construction, Interpretation of Law by Crawford, which reads as follows:- "161. The legislature purpose.-- Naturally, the legislative purpose is the reason why the particular enactment was passed by the legislature. Perhaps the reason was to remedy some existing evil, or to correct some defect in existing law, or to create a new right or a new remedy. Consequently, in seeking to ascertain the legislative purpose, the Court will resort, among other things, to the circumstances existing at the time of the law's enactment, to the necessity for the law and the evil intended to be cured by it, to the intended remedy, to the law prior to the new enactment, and to the consequences of the construction urged.
But these various indications of the legislative purpose do not directly reveal the legislative intent or meaning but simply why specific legislation was enacted. Nevertheless, as is apparent, the ascertainment of the legislative purpose or purposes, if there be several, is, or may be a step in the process of ascertaining the legislative intent or meaning, since the reason for the enactment of a law must necessarily shed considerable light on "the law of the statute", that is, on the legislative intent, for if the legislators sought to effect a certain purpose, naturally such purpose should reveal or tend to reveal the meaning of the language used by the law-makers. And even where the meaning of the statute seems clear, the ascertained purpose may corroborate or confirm a particular asserted construction or the one apparent on the statute's face.
Consequently, when construing a statute, the reason for its enactment should be kept in mind, and the statute should be construed with reference to its intended scope and purpose. The Court should seek to carry out this purpose rather than to defeat it. Of course, if the language is unambiguous and the statute's meaning is clear, the statute must be accorded the expressed meaning without deviation, since any departure would constitute an invasion of the province of the legislature by the judiciary. And even where the statute is ambiguous, considerable caution should be exercised by the Court lest its opinion be substituted for the intent ' of the legislature. In other words, the Court must not ascribe to the law-makers a purpose not actually that of the legislature.
To do so would result in ascribing to the statute a different intent than that of the legislature."
14. The obiter dictum of Gwyer, CJ. In the case of United Provinces v. Mt. Atiqa Begum and others AIR 1941 F.C. 16 led to the incorporation of Order XXVIIA by the Code of Civil Procedure (Amendment)
Act, 1942 (Act NO.XIII of 1942) on 1-10-1942. It may be pertinent to refer the facts of the above case briefly. A suit was filed by the plaintiffs/lessors of agricultural land against Thekadars, who were defined by the relevant statute farmers or other lessees of proprietary rights in land and in particular of the right to receive rents or profits with the terms of their lease or Theka, for the arrears of rent for the year ending June, 1931, and the two following years at the rate reserved by the lease.
The defendants/Thekadars in their defence inter alia pleaded that remissions of rent had been ordered by the local Government which ought to be taken into account in calculating the amount due. The contention of the plaintiffs was that the above remissions were beyond the power of the Government and, therefore, the defendants were not entitled to rely upon the same. 1t may be observed that in 1931 United Provinces were faced with a catastrophic fall in agricultural prices followed by threats to withhold rent on a large scale. Faced with the above situation, the Provincial Government devised a scheme for the systematic reduction of rents varying with the circumstances of different districts followed by consequential adjustments in the land revenue.
While the above litigation between the parties was pending, the Provincial Government enacted the Regularisation of Remissions Act, 1938, before the matter was taken up in appeal by the High Court. In the above appeal, it was contended by the plaintiffs/lessors that the above Act was ultra vires the legislative power of the Province. A Full Bench of the Allahabad High Court was constituted to hear the above legal question. The Full Bench had caused notice to be given to the Advocate- General of the Province, ip order that, if the United Provinces Government so directed, he might appear and support the validity of the Act. However, the Provincial Government applied to become a party to appeal in order that it might have a right of appeal to the Federal Court, which request was not opposed. Accordingly, the Provincial Government was made a party. When the matter came up for hearing before the Federal Court, the counsel for the lessors urged a preliminary objection and contended that the Advocate-General ought not to be heard because the High Court had no power to make the Province a party to the suit and the Province had no right to appeal., While considering the above arguments, Gwyer, CJ. Made the following observations:- "I desire to say at the outset that, assuming for the moment that there was jurisdiction to add a party to represent the executive Government of the Province, that party ought not in my opinion to have been the Province itself. It is true that by section ;'6(1), Constitution Act, a Provincial Government may sue or be sued by the name of the Province, and may, subject to any provisions which may be made by Act of the Federal or the Provincial Legislature, sue or be sued in relation to its affairs in the like cases as the Secretary of State in Council might have sued or been sued if the Act had not been passed. But it seems to me that where the validity or constitutionality of provincial legislation is in issue, and not any matter relating to the proprietary rights or interests of the Province, it is more convenient and more correct that the Advocate-General should represent the executive Government for the time being of the Province. This is the dominion practice, and in my opinion it ought to be followed in India."
15. It may be observed that except in the Presidency Towns in India, the original jurisdiction in respect of civil matters has always been exercised by the subordinate Courts i.e. Munsif or Civil Judges. In a suit in Indo-Pak inter se between the private parties, some time the controversy as to the competency or legality of a particular Act or a provision thereof used to be raised. Since the Government concerned used to be not a party to such a suit, it was felt that there should be a provision in the Code of Civil Procedure in order to enable the Court to ascertain the views of the Government concerned either by issuing a notice to the Principal Law Officer of such Government or by impleading the Province concerned as a party. The above difficulty was highlighted by Gwyer; CJ. In the case of United Provinces v. Mt. Atiqa Begum and others (supra and, therefore, Order XXVIIA was enacted in October, 1942, by Act NoXIII of 1942. At this juncture, it may be pertinent to reproduce Rules 1 and 2 of above Order XXVIIA, C.P.C., which have direct bearing to the above controversy and which read as follows:- "1. Notice to the Advocate-General.--In any suit in which it appears to the Court that any substantial question as to the interpretation of Constitutional law is involved, the Court shall not proceed to determine the question until after notice has been given to the Attorney-General for Pakistan if the question of law concerns the Central Government and to the Advocate-General of the Province if the question of law concerns a Provincial Government.
2. Court may add Government as party.--The Court may at any stage of the proceedings order that the Central Government or a Provincial Government shall be added as a defendant in any suit involving any substantial question as to the interpretation of Constitutional law if the Attorney- General for Pakistan or the Advocate-General of the Province, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved."
16. A plain reading of the above Rule 1 indicates that if the Court finds that in any suit any substantial question as to the interpretation of Constitutional law is involved, it shall not proceed to determine such a question until after notice has been given to the Attorney-General for Pakistan if the question of law relates to the Central Government and to the Advocate General of the Province, if the question of law pertains to a Provincial Government. It may also be noticed that above Rule 2 empowers the Court to add the Central or Provincial Government at any stage of the proceedings as a defendant in any suit involving any substantial question as to the interpretation of.
Constitutional law if the Attorney-General for Pakistan or the Advocate General of the Province, as the case may be, whether upon receipt of notice under Rule 1 or otherwise, applies for such addition upon satisfaction that such addition -is necessary and desirable.
17. Since the above Order of the Code of Civil Procedure speaks of "any suit", the question arises, as whether the same can be made .Applicable to a Constitution Petition. In this regard, I may refer first to the two judgments of this Court, namely, in the case of Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527 and in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1. In the first case, a Full Bench of the erstwhile High Court of West Pakistan declared a Central Ordinance, namely, The Legal Practice (Disqualification) Ordinance, 1964, to be ultra vires though the Central Government was not made a party in the proceedings which were initiated through writ petitions on the question, whether certain retired Judges of the superior Courts could practice. Against the above judgment, the erswhile West Pakistan Government filed an appeal, which was allowed by this Court through a majority judgment. Kaikaus, J., while rendering the minority judgment, has dilated upon as to the scope of the above Rules 1 and 2 of Order XXVIIA, C.P.C. As follows:- "I will now deal with the right of the Government to file an appeal on the ground that a Constitutional question is involved. The relevant provision is Order XXVIIA of the Code of the Civil Procedure which in terms does not apply, but the principle involved is which is applicable. The first rule of this Order directs the Court to hear the Advocate-General or the Attorney-General as the case may be before deciding a Constitutional question. The second rule permits the Court to add the Government as a party on the application of the Advocate General or the Attorney-General.
The first rule ensures that the Government is heard whenever a constitutional question is raised.
This rule would not entitle the Government to file an appeal and on the other hand does away with the need of an appeal for all that the Government wants is that it should be heard on a constitutional question and this is granted by this rule. The second rule permits the addition of the Government as a party, but assuming without discussion that the Government will then be in a position to file an appeal, the appeal will have to be confined to the decision of the constitutional question. If no appeal is filed against a decree by the party affected the decree cannot be set aside on an appeal by the Government on the constitutional question. An appeal is to be filed only by a party aggrieved and this involves that the appeal is restricted to the grievance and goes no further. The right of appeal of the Government is only against the decision of the constitutional question and there is no right of appeal against the decree or the order passed. What can be decided in the appeal depends on the extent of the attack which the appellant can make. An appeal is limited to a decision of the right of the appellant. When Malik Feroze Khan Noon was allowed a right of appeal against the judgment of the High Court in Malik Feroze Khan Noon v. The State PLD 1958 SC 333 the judgment could not have been set aside on his appeal. Only the remarks against him could be expunged.
I have already referred to United Provinces v. Atiqa Begum where Gwyer, CJ. Had said that when the Government prefers an appeal because of a constitutional question the decision is confined to the decision of the constitutional question and the decree in the suit remains unaffected. Whether it be a decree or order the same principle applies and the decree or order can be set aside only at the instance of the party who has a right of appeal against the decree or order."
Whereas in the above second case the question involved was, whether the High Court, apart from its inherent jurisdiction, has powers under Code of Civil Procedure to review its order made in exercise of its writ jurisdiction. The above question was answered by this Court in the affirmative. In the judgment there is very illuminating discourse as to the applicability of the provisions of Civil Procedure Code to writ proceedings in the High Court. It will be instructive to quote the following extract from the above judgment:- "Learned counsel for the respondent No.2(i) submits that the Code of Civil Procedure does not envisage any jurisdiction of the High Court other than its civil appellate and original civil jurisdiction and that the High Court's writ jurisdiction being a new jurisdiction conferred by the Constitution, is to be regulated not by the provisions of the Code of Civil Procedure but by the rules of procedure which the High Court is empowered to make under Article 101 of the Constitution, with the approval of the Governor of the Province. This argument, though attractive, does not appear to be sound.
The Civil Procedure Code regulates civil proceedings. The nature of the proceeding does not necessarily depend on the nature of the jurisdiction of the Court invoked. In order to determine whether a proceeding is a civil proceeding or not, it is necessary to see what are the questions raised and decided in the proceedings. If the proceeding involves the assertion or enforcement of a civil right, it is a civil proceeding. As regards application of the provisions of the Code in proceedings before a High Court, their Lordships of the Privy Council in Sabitri Thakurani v. Savi AIR 1921 PC 80 observed: `The Code is framed on the scheme of providing generally for the mode in which the High Court is to exercise its jurisdiction, whatever it may be, while specifically excepting the powers relating to the exercise of original civil jurisdiction, to which the Code is not to apply.'
The underlining in the above quotation is mine. The words underlined clearly indicate that the provisions of the Code, other than the specially excepted ones, shall apply in the exercise of the High Court's jurisdiction in a civil matter, whatever may be the nature of that jurisdiction.
The writ jurisdiction under Article 98 of the Constitution, as already stated, is an original jurisdiction.
Obviously, the jurisdiction under that Article pertains to civil as well as other matters. At the moment, I shall consider the nature of the proceeding arising out of a writ petition relating to a civil matter, as in the instant case. A proceeding taken for the enforcement of a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right."
18. I may also refer to the two cases of the erstwhile High Court of West Pakistan i.e. The case of Inayatullah and others v. M.A. Khan and others PLD 1961 Lahore 536 and the ease of Haider Automobiles Ltd. v. Pakistan PLD 1967 Lahore 882.
In the above first case, a Division Bench by a common judgment, decided a Writ Petition as well as an appeal arising out of a judgment rendered by a District Judge, in which he had held that the provisions of West Pakistan Waqf Properties (Amendment) Ordinance (X of 1960), were ultra vires the Governor of West Pakistan. In that conteict the learned Judges of the Division Bench referred to the provisions of Order XXVIIA of the Code of Civil Procedure and observed as follows:- "It is true that as worded, the rule relied upon by the learned Advocate-General would appear to apply to suits only but if , the provisions of section 141 of the Code of Civil Procedure are kept in view it becomes clear that Order XXVIIA of the Code was fully applicable to the proceedings before Mr.S.M.Tirmizey as it would have been if the point with regard to the validity of the Ordinance had been taken up in a suit. It follows, therefore, that the learned District Judge has given his decision that the Ordinance was ultra vires the Governor of West Pakistan without complying with the provisions of law, because the question of the validity of an enactment is covered by subsection (1) of section 205 of the Government of India Act, 1935, and Order XXVIIA, rule 2 of the Code of Civil Procedure was applicable. Had it not been for the fact that it is not necessary to decide whether the decision of the learned District Judge was correct or otherwise, it is by no means unlikely that the decision of the learned District Judge would have been vacated or at least subjected to criticism for the reason that the learned Judge had not followed a mandatory provision of law. I would, therefore, accept the appeal and remand the case to the learned District Judge for giving a decision on the other issues in the case. The costs of the appeal will be costs in the cause."
Whereas in the above second case, a Division Bench of tile erswhile High Court of West Pakistan, while dealing with a civil miscellaneous petition in connection with Legal Practice (Disqualifications) Ordinance (if of 1964) read with Retired Judges (Legal Practice) Order (XXI of 1962), also dilated upon the scope of Order XXVIIA of the Code of Civil Procedure. Muhammad Akram, J. (as his Lordship then was), made following observations: "29. Strictly speaking the. Provisions of the Code of Civil Procedure are not applicable to the proceedings under Article 98 of the Constitution. But the broad principles of the Code are nevertheless generally followed in regulating the procedure before the High Court in such cases.
Order XXVIIA, rule 1, C.P.C. Lays down: Under rule 1 the Advocate-General of the Province or the AttorneyGeneral of Pakistan has a right to intervene without impleading the Provincial or the Central Government as a party. Thereby, the Government does not become a party to the case. It is only under rule 2 that the Government is to be added as a party, if necessary. Order XXVIIA was inserted by the Civil Procedure (Amendment)
Act, XXIII of 1942 as a result of the invaluable opinion expressed by Gwyer, C.J. In United Province v.
Mst. Atiqa Begum and others AIR 1941 FC 16 which brings out this distinction."
19. I may now refer to the two authorities of the Indian jurisdiction, namely, the case of Heman Sandal v. State of Bombay AIR 1951 Bombay 121 and the case of Bharat Board Mills Ltd. v. The Regional Provident Fund Commissioner AIR 1957 Calcutta 702.
In the above first case, the petitioner had challenged the vires of the provisions of section 6(4)(e) of Bombay Land Acquisition Act, 1948, before a learned Single Judge of the Bombay High Court in a Miscellaneous Petition. The matter was referred to a Division Bench headed by Chagla, C.J., who rendered the judgment. While dealing with the question, -whether a notice under Order XXVIIA of the Code of Civil Procedure was mandatory even in a case in which the Government concerned is a party, observed as follows: "(7) A minor question has also been referred to us and that is the proper interpretation of Order 27- A, Civil P.C. That is a new provision and it was recently - embodied in the Code. In this petition, the State of Bombay was a party and the procedural question that we have to decide is whether, although the State of Bombay was a party to this petition, it was incumbent upon the Court to give notice to the Advocate-General. There is no doubt that this petition involves the determination of a substantial question of law as to the interpretation of the Constitution and Rule 1, Order 27-A makes it mandatory for the Court to give notice to the Advocate-General if the question of law concerns the State and to the Attorney-General if it concerns the Union Government. As the rule stands it is clear and explicit and as I said before mandatory and it makes it incumbent upon the Court in every suit where such a question arises to give notice to the Advocate- General or the Attorney- General as the case may be. What is urged before us is that Rule 2 makes it clear that the object of the Legislature in providing Rule 1 was that the Advocate-General or the Attorney-General should have notice only in cases where the State, as not a party, the contention being that it is the State that should have notice and not the Advocate-General or the Attorney-General as such, and that the reason for giving the notice to the Advocate- General or the Attorney-General was that they represented respectively the State and the Union Government and therefore, it is contended that it would be futile and useless to give notice to the Attorney-General or the Advocate-General when the Union Government or the State were already parties to the suit or proceedings. For this purpose our attention is drawn to Rule 2 which provides that the Court may at any stage add the State or the Union as a party where upon receipt of notice under Rule 1 or otherwise the Advocate-General or the Attorney-General applies for the addition of the State or the Union as a party, and what is urged is that Rule 2 suggests that the object of giving notice under Rule 1 is to make the State or the Union a party to the suit or proceeding, and if the State or the Union is already a party then no object can be served by giving notice to the Advocate-General or the Attorney- General. In our opinion, as the Advocate-General has rightly pointed out, there may be cases where the Advocate-General may be required although the State is a party to the suit. He has given a instance which may perhaps be no longer appropriate that the Advocate-Generalrepresents charity apart from his being the legal adviser of the State and a conflict may arise between the State and the charity and it would be for the Advocate- General to decide whether he should take up cudgles for the charity or represent the State in that particular matter. It is also known that the Advocate-General is the leader of the Bar. He not only represents the State, but he also represents the Bar. A question may arise where there may be a conflict between the rights and privileges of the members of the Bar and the rights of the State and in such cases it would be very desirable not only to have the State before the Court but also the Advocate-General in his capacity as Advocate-General, and therefore we do not see any reason why we should read in Rule 1 that the Advocate-General or the AttorneyGeneral has to be given notice merely as the mouthpiece of the respective Governments. They have independent rights and independent functions to discharge and as I said before, an occasion may arise when the presence of either one or the other may be necessary irrespective of whether the State or the Union is a party to that litigation. The Advocate-General has also drawn' our attention to Rule 3 which deals with costs and which provides that where under Rule 2 Government is added as a defendant in the suit, the Advocate General or the Government shall not be entitled to or liable for costs. This seems to suggest that the draftsma n of the rule contemplated that even where the State or the Union was added as a party to the suit the Advocate-General may still appear and therefore the question of costs has to be dealt with both with regard. To the State and the Advocate General. It may be that in majority of cases the matter may be academic and not of much importance, but we accede to the argument of the Advocate-General that we should not put any limitation upon Rule 1 when the Legislature did not choose to do so. We, therefore, hold that every case which involves a question referred to in Rule 1 notice must be given by the Court to the Advocate-General or .The Attorney-General as the case may be."
Whereas in the above second case Bose, J., while dealing with more or less an identical question which was involved in the above Bombay case, has taken a somewhat contrary view as under: "(23) It is clear that this provision was intended to apply to suits. An application under Article 226 of the Constitution is however not a suit. But it is to be noted that section 141 of the Code states that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. It has been held by this Court that the jurisdiction which the High Court exercises under Article 226 of the Constitution is a special and limited jurisdiction. It is not a revisional jurisdiction, nor is it an appellate jurisdiction. The High Court also does not exercise any jurisdiction of superintendence under Article 226 as it does under Article 227 of the Constitution: 57 Cal. WN 25: (AIR 1953 Cal. 433) (SB) (W). Neither order 27-A, nor section 141 of the Code therefore apply literally to proceedings under Article 226 of the Constitution.
Furthermore, the scope and implications of Article 19 and Article 14 of the Constitution of India have been the subject of several decisions of the Supreme Court and the scope and implication of these two Articles are now well-known. So it cannot be said now that, merely because in considering the question whether a particular statute offends against the Constitution. Article 19(1)(g) and Article 14 have to be referred to, for finding out whether the provisions of the Constitution are violated by the impugned statute, there is substantial question as to the interpretation of the Constitution involved in this case.
(23-A) This Court had occasion to decide similar questions about the constitutionality of statutes of the Union Legislature in the past but no notice on the Attorney-General was insisted on, nor was any such notice given in proceedings under Article 226 of the Constitution. It is further to be noted that in the present proceedings the Union of India has been made a party and the Central Provident Fund Commissioner and the Regional Provident Fund Commissioner are also parties to this proceeding. All these parties have been represented before me by Mr. Amiya Kumar Mukherjee.
In the circumstances it appears to me that no notice to the Attorney-General is necessary assuming that the provisions of Order 27-A of the Code are applicable to this case:'
20. From the above-cited authorities, it is evident that except in the above Bombay case, in none of the other cases, it has been expressly held that under Rule 1 of Order XXVIIA, C.P.C. The required notice is to be given to the Attorney-General and/or to the Advocate -General, not as the principal law officer of the Government concerned but as the incumbents of the above offices in their individual capacities. The view found favour with Chagla, CJ. In the above Bombay case, seems to run counter to the observation of Gwyer, CJ. In the case of United Provinces v. Mst. Atiqa Begum and others (supra). And the spirit of Order XXVIIA, C.P.C. Gwyer, C.J. Was of the view "that where the validity or constitutionality of a provincial Legislature is in issue and not any matter relating to the proprietary rights or interests of the province, it is more convenient and more correct that the Advocate-General should represent the Executive Government for the time being of the province", which was the practice obtaining in the Dominion. Kaikaus J. In the case of Government of Pakistan v. Syed Akhlaq Hussain and another (supra), while analysing the above provision of C.P.C., observed "that the first rule ensures that the Government is heard whenever a Constitutional question is raised". He also pointed out that if a notice is issued under rule 1 of Order XXVIIA, C.P.C., the Government concerned is not entitled to file an appeal against the decision in the case in issue, but where it is impleaded as a party under rule 2 of the above Order, the right of appeal of the Government is only against the decision of the constitutional question and there is no right of appeal against decree or order passed on merits.
The above two judgments of the Division Benches of the erstwhile West Pakistan High Court do not touch upon the question in issue, directly. In the, first case of Inayatullah and others (supra) since the District Judge had declared an Ordinance as invalid probably in a petition under the Waqf Property Ordinance, 1959. It was held that the District Judge had not followed mandatory provision of law by not serving a notice on the Advocate-General under Order XXVIIA. Rule I, C.P.C., whereas in the above second case of Haider Automobiles Limited (supra), Akram, J. Was of the view that strictly speaking the provisions of the Code of Civil Procedure were not applicable to the proceedings under Article 98 of the late Constitution of 1962, though broad principles of the same were applicable.. He was also of the view that under Rule 1 of Order XXVIIA, C.P.C. The Advocate- General of the Province or the Attorney-General of Pakistan has the right to intervene without the Government concerned being impleaded.
However, it may be pointed out that the above controversy stands settled in the case of Hussain Bakhsh v. Settlement Commissioner, Rawalpindi (supra), wherein it has been held by this Court that Code of Civil Procedure is applicable to Writ Petition proceedings before the High Court.
It may also be observed that Bose, J. In the above Calcutta case, has taken a somewhat contrary view to that of Chagla, C.J. And has held that neither Order XXVIIA nor section 141, C.P.C. Apply literally to proceedings under Article 226 of the Indian Constitution and that as the Union of India and the officials concerned were parties to the constitutional proceedings before him, no notice was required to be given to the Advocate-General
21. In my view, the provisions of Order XXVIIA, C.P.C. Were not designed or intended to control or to obstruct exercise of constitutional jurisdiction by the High Courts. It was enacted in 1942 on the basis of the above obiter dictum of Gwyer, C.J. With the object that before a statute or any of its provisions is declared ultra vires in a suit between two private litigants, the Government concerned's view should be ascertained. To achieve the above objective, Rule 1 provides the service of a notice on the Attorney-General and/or Advocate-General as the principal law officers of the Government concerned, as the case may be, and not as amicus curiae or in their individual capacities, whereas, rule 2 thereof envisages impleading of the Government concerned upon an application of the Attorney-General or Advocate-General after service of notice, upon him or them under rule 1, in order to entitle the Government concerned to acquire right to file an appeal against the decision on the constitutional question involved. And not on the merits of the case.
If I were to hold that an Attorney-General or an Advocate-General is not to receive notice under Rule 1 of Order XXVIIA, C.P.C., as the principal Law Officer of the Government concerned, it means that a statute or any of its provision can be declared ultra vires by a Court in a proceeding to which the Government concerned is not party without hearing its point of view, which will be contrary to the legislative intent and purpose for which above provision was enacted.
I am also inclined to hold that a distinction is to be drawn between a proceeding, in which two private parties are litigating and, wherein vires of a staute or any of its provisions is impugned, and a proceeding in which an executive order is assailed and the authority which has passed such an order is arraigned as a party. In the former case, a notice under Order' XXVIIA, Rule 1, C.P.C. Is to be served on the Attorney-General, if the statute relates to the Federal subject, and to the Advocate- General, if it pertains to a provincial subject, whereas, in the latter case, a notice under the above provision may not be required to be served as it will depend on the facts of the case and the factum, who are parties to the proceedings. I am further inclined to hold that simpliciter the fact that a legal proceeding involves interpretation of a constitutional provision will not warrant issuance of a notice to the Attorney-General or to the Advocate-General concerned, as the case may be, if the constitutional issue in question has already been interpreted authoritatively by the superior Courts including by this Court and there is no diversity of views, and the Government concerned and the officials concerned are impleaded as the parties to the proceedings.
22. In the present case, the respondent No.l had impugned the Governor's order dated 6-8-1990 through a Constitutional petition, in which not only the Governor was impleaded as a respondent but the Provincial and Federal Governments were also arraigned as respondents. They were effectively represented by the counsel of their choice. The Court also issued notice to the Advocate-General of N: W.F.P. This Court in the case of Federation of Pakistan and others v. Haji Saifullah Khan and others (supra) has authoritatively interpreted scope of Articles 58(2)(b) and 112(2) of the Constitution. No doubt that prior approval of the President under Article lI2(2) is required before a Governor can dissolve a Provincial Assembly, but nevertheless the order remains that of the Governor. I am, therefore, of the view that the High Court, on the basis of the above facts, could take the view that no notice under rule 1 of Order XXVIIA, C.P.C. Was required to be served on the Attorney-General. Additionally, IAttorney-General was not available at the relevant time be busy before the Lahore High Court. I may also of procedural provision is to facilitate and not to obstruct or cause delay in its disposal, dissolved Assembly was to be held within 90 impugned order, the Constitutional petition in question was to be disposed of expeditiously before holding of election and, therefore, the anxiety on the partof the High Court to dispose of the petition promptly, was understandable and justifiable.
23. Indeed, an Attorney-General acts in three different capacities as highlighted by Mr. Sharifuddin Pirzada, but in my view, it is for the Court concerned to decide, whether any assistance of the learned Attorney-General is required in a particular case in the absence of any mandatory provision requiring service of a notice before disposal of such a case. In this regard, it may be pertinent to point out that clause (b) of sub-Article (4) of Article 199 of the Constitution provides service of notice of an application for an interim order referred to therein, to the prescribed law officer before it can be passed. There is no such constitutional requirement for serving such a notice before rendering a judgment in a Constitutional petition. The provisions of Order XXVIIA, C.P.C. Cannot be equated with a constitutional provision. It is to be interpreted in a manner which may be in harmony with the provisions of Constitution and which may advance constitutional remedy rather than to curtail or to enchain it with technicalities.
24. Having dealt with the question of notice under Order XXVIIA, C.P.C., I may now revert to the merits of the case.
Before dealing with the main point, I may observe that there was a lot of controversy on the question, whether the original notification of dissolving the Provincial Assembly which did not contain any ground for dissolution, issued by the Governor on 6-8-1990 can be substituted by a corrigendum issued on 16-9-1990, which contained the grounds and also on the question, whether the President's approval was accorded on 5th August or on 6th August, 1990, keeping in view the factum that Mr. Zahoorul Haq, learned counsel appearing for the Provincial Government, on 23-9- 1990 made a statement before the Full Bench of the Peshawar High Court, after taking instructions from the Governor, that the approval of the President was taken on the evening of 5th August, 1990, whereas, in the Affidavit dated 18-10-1990, filed by Captain Adnan Janjua, A.D.C. To the Governor, N: W.F.P., and Affidavit dated 3-i1-1990, filed by Mr. Fazlur Rehman Khan, Secretary to the President, it has been averred that the approval was given by the President in the evening of 6th August, 1990, after the oath-taking ceremony of the Care-taker Prime Minister of Pakistan, who was also present when the above approval was accorded.
There was also controversy on the question, whether the President should have recorded his approval in writing on the basis of a written note to be routed through the Prime Minister.
I would not like to enter into the above controversies as I am inclined to hold that the impugned order cannot be sustained as the material placed before the High Court, on the basis of which the impugned order was said to have been passed, did not have nexus with the grounds referred to therein and in Article 112(2) of the Constitution. I may also observe that before this Court a number of documents have been filed to justify the impugned order in support of the grounds which, inter alia, include the list of the allotment of plots to the M.P.As., M.NAs. And to their relations, induction of a number of M.P.As. As Ministers and Advisors, and granting other favours in the form of cash and kind, in order to purchase or keep their loyalties intact with the object to remain in power. There is no doubt that the above material is very much relevant, but, in my humble view, in order to determine the legality of the impugned order, the Court is to see what was the material before the Governor and the President when the impugned order of dissolving the Provincial Assembly was passed, and not the material which might have been collected after the passing of the impugned order. This is so, as the Court is to examine, as to whether the authority empowered to pass the impugned order has applied its mind properly or not. The Governor and the Provincial Government took the plea before the High Court that the three documents produced along with their written statements were the basis on which the Governor formed the opinion for dissolving the Provincial Assembly.
It may be pertinent at this stage to point out that in the corrigendum, it was stated "that usefulness of the mandate of the Provincial Assembly as an elected body under the Constitution have been defeated by- (I)continuous and widespread corruption including misapplication of public funds;
(ii) horse-trading and change of loyalties in violation of law by the holders of representative offices for political and personal gains by the functionaries of the Government, local and statutory authorities functioning under its control;
(iii) that orderly functioning of the Government in accordance with the provisions of the Constitution, including the requirement of oath(s) prescribed thereunder and the law is not possible; and (iv)the members have lost the confidence of people.
25. The three documents produced and relied before the High Court in support of the impugned order are: "(I)/2, a photo copy of a statement indicating the performance of the Provincial Assembly between 30-11-1988 to 6-8-1990; (ii)R/3, a photo copy of N.-W.F.P. Government Gazette Extra. Dated 13-11-1989 containing N: W.F.P. Act NO.VHI of 1989, section 3 of which provided that:- Notwithstanding anything in subsection (1) of section 2 of the NorthWest Frontier Province Civil Servants Act, 1973 (N.-W.F.P. Act NOXVIII of 1973), any candidate appointed on contract basis in any Government department against any post on contract basis under section 5 of the North-West Frontier Province Civil Servants (Regularization of Services) Act, 1988 (N.-W.F.P. Act No.I of 1989) till the commencing day of this Act shall be deemed to have been appointed as a civil servant on ad hoc basis, and shall always be deemed to have been so appointed.
(iii) R/4, a photo copy of N.-W.F.P.'s Gazette, Extra. Dated 25-2-1990 containing N.-W.F.P. Act No.II of 1990, whereby the services of civil servants, whose appointments were made ad hoc under section 3 of the above Act NO.VIli of 1989, were regularized without any examination and without any reference to the Public Service Commission:"
As regards the above first document, in my view, the High Court has rightly held that in the absence of material particulars as to the number of the Legislations which were required to have been passed during the period D mentioned in R/2, it cannot be said that the performance of the Provincial C Assembly was not satisfactory, particularly keeping in view the fact that Provincial Budget for the year 1990-91 was passed by the Assembly I unanimously.
Adverting to the above two documents, namely, R/3 and R/4, it may be pertinent to observe that the above two Acts were also passed unanimously by the Provincial Assembly and the same were assented to by the Governor. The competency of the Provincial Assembly to pass the above Acts has not been disputed nor it has been challenged by anyone through a judicial proceeding. In my view, the above three documents could not have been the basis for forming the opinion by the Governor contained in the Corrigendum, as they have no nexus with the grounds contained therein referred to in subparas (i) to (iv) of para. 24 or the grounds contained in Article 112(2)(b) of the Constitution. I am mindful of the fact that a Court cannot sit as a Court of appeal while examining an order of the nature in issue, nor it can substitute its opinion nor it can go into the question of sufficiency of material provided that E the material relied upon has nexus with the grounds mentioned in the impugned order, which in turn should have nexus with the grounds mentioned in Article 112(2)(b) of the Constitution manifesting application of mind by the repository of power.
26. In this regard, it may be pertinent to refer to the case of Federation of Pakistan v. Haji Muhammad Saifullah Khan (PLD 1989 SC 166), in which Nasim Hasan Shah, J. In his opinion, has dilated upon the question, as to how an opinion is to be formed before dissolving an Assembly under Articles 58 and 112 of the Constitution, as follows:- "Thus the intention of the law-makers, as evidenced from their speeches and the terms in which the law was enacted, shows that any order of dissolution by the President can be passed and an appeal to the electorate made only when the machinery of the Government has broken down completely, its authority eroded and the Government cannot be carried on in accordance with the provisions of the Constitution.
True enough, it is within the discretion of the President to determine whether these conditions are met or not but this discretion has to be exercised in terms of the words and spirit of the Constitutional provision.
"According to his discretion," as explained, relying on Maxwell, in M. Abdul Majid v. The West Pakistan Province and 2 others (PLD 1956 Lah. 615), means: "According to the rules of reason and justice, not private opinion, according to law and not humour, it is to be not arbitrary, vague and fanciful, but legal and regular, to be and for substantial reasons and it must be exercised within the limits to which an honest man competent in the discharge of his office ought to confine himself i.e. Within the limits and for the objects intended by the Legislature."
The discretion conferred by Article 58(2)(b) of the Constitution on the President cannot; therefore, be regarded to be an absolute one, but is to be deemed to be a qualified one, in the sense that it is circumscribed by the object of the law that confers it.
It must further be noted that the reading of the provisions of Articles 48(2) and 58(2) shows that the President has to first form his opinion, objectively and then, it is open to him to exercise his discretion one way or the other, i.e. Either to dissolve the Assembly or to decline to dissolve it. Even if some immunity envisaged by Article 48(2) is available to the action taken under Article 58(2) that can possibly be only in relation to the exercise of his `discretion' but not in relation to his `opinion'.
An obligation is cast on the President by the aforesaid Constitutional provision that before exercising his discretion he has to form his `opinion' that a situation of the kind envisaged in Article 58(2)(b) has arisen which necessitated the grave step of dissolving the National Assembly."
Whereas, Shafiur Rahman, J., in his separate opinion in the above case, has observed as under on.
The above aspect:- "There is no express ouster clause in the Constitution with regard to the exercise of this power by the President. Whatever ouster could be implied by the use of the expressions "in his discretion" and "in his opinion" stands removed by the use of non obstante clause "notwithstanding", thereby excluding the application of ouster clause contained in Article 48(2) excluding Court's jurisdiction generally where the powers reserved for the President to be exercised in his discretion are concerned. Additionally the existence of jurisdictional facts capable of judicial ascertainment and adjudication was made a precondition for the exercise of this power. Not to test the exercise of this power by reference to these constitutionally prescribed jurisdictional facts, namely-
(i) a situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution; and (ii )an appeal to the electorate is necessary would in fact amount to a failure to discharge a duty ordained by the Constitution itself.
The expression "cannot be carried on" sandwiched as it is between "Federal Government" and "in accordance with the provisions of the Constitution", acquires a very potent, a very positive and a very concrete content. Nothing has been left to surmises, likes or dislikes, opinion or view. It does not concern itself with the pace of the progress, the shade of the quality or the degree of the performance or the quantum of the achievement. It concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution. The historical perspective in which such a provision found a place in our Constitution, reinforces this interpretation."
27. It is evident from the above-quoted extracts that the formation of opinion should be founded on some material, and that the ground(s) should have nexus with the grounds mentioned in Articles 58 and 112 of the Constitution. The question, whether grounds exist for dissolving Assembly, is to be examined objectively and not subjectively by the repository of the power 1 in question. It is also apparent that if it can be shown that no ground existed on the basis of which an honest opinion could be formed, the exercise of the power would be unconstitutional and open to correction through judicial review.
There were heated arguments as to the import of clause (b) of sub-Article (2) of Article 112 of the Constitution, which provides that "a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary".
It was contended by Mr. Aziz A. Munshi, learned Attorney-General, and Mr. Sharifuddin Pirzada, learned senior counsel, that the above observation of Nasim Hasan Shah, J. That "nothing was shown either before the High Court or before us that the machinery of the Government of the Federation had come to a standstill or such a breakdown had occurred therein which was preventing the orderly functioning of the Constitution", and the above observation of Shafiur Rahman, J. That "it concerns itself with the breakdown of the Constitutional mechanism, a stalemate, a deadlock in ensuring the observance of the provisions of the Constitution", are to be read with the other parts of the opinions and that the same do not mean that there should be actual standstill or breakdown or a stalemate or a deadlock of the Government machinery but they mean that the Government cannot be carried on in accordance with the provisions of the Constitution.
On the other hand, Mr. Iftikhar Gilani, learned counsel for respondent No.l, has urged that a drastic action, like dissolving of an elected Assembly and dismissing of the Government in power, cannot be taken unless there is factually a standstill or a breakdown or a stalemate or a deadlock of the machinery of the Government concerned.
In this regard, it may be pertinent to refer to the case of State of Rajasthan and others v. Union of India (AIR 1977 SC 1361), heavily relied upon by Messrs Aziz Munshi and Sharifuddin Pirzada, in which the facts were that original Suits Nos.l to,6 of 1977 were filed directly in the Indian Supreme Court on behalf of the States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa, against the Union of India challenging the President's Proclamation made under Article 356 of the Constitution, which was issued on the ground that the ruling parties in the above States wholly lost in the election of the Lok Sabha. Three Writ Petitions were also filed in the Indian Supreme Court by three members of the Legislative Assembly Punjab for the same purpose. The above suits and Writ Petitions were dismissed. The learned Chief Justice and his some companion Judges rendered their separate opinions. Bhagwati, J. In his opinion, has observed that in the absence of any provision in the Constitution that defeat of the ruling party in a State in the Lok Sabha election cannot by itself, without anything more, support the inference that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. However, at the same time, he held that the above Proclamation was justified for the following reasons:- "It is axiomatic that no Government can function efficiently and effectively in accordance with the Constitution in a democratic set-up unless it enjoys the goodwill and support of the people. Where there is a wall of estrangement which divides the Government from the people, and there is resentment and antipathy in the hearts of the people against the Government, it is not at all unlikely that it may lead to instability and, even the administration may be paralysed. The consent of the people is the basis of democratic form of Government and when that is withdrawn so entirely and unequivocally as to leave no room for doubt about the intensity of public feeling against the ruling party, the moral authority of the Government would be seriously undermined and a situation may arise where the people may cease to give respect and obedience to Governmental authority and even conflict and confrontation may develop between the Government and the people leading to collapse of administration. These are all consequences which cannot be said to be unlikely to arise from such an unusual state of affairs and they may make it impossible for the Government of the State to be carried on in accordance with the provisions of the Constitution. Whether the situation is fraught with such consequences or not is entirely a matter of political judgment for the executive branch of the Government. But it cannot be said that such consequences can never ensue and that the ground that on account of total and massive defeat of the ruling party in the Lok Sabha elections, the Legislative Assembly of the State has ceased to reflect the will of the people and there is complete alienation between the Legislative Assembly and the peoples is wholly extraneous or irrelevant to the purpose of Article 356, Clause (1). We hold that on the facts and circumstances of the present case this ground is clearly a relevant ground having reasonable nexus with the matter in regard to which the President is required to be satisfied before taking action under Article 356, Clause (1)."
28. In my opinion, the above approach of Bhagwati, J. Does not run counter to the reasoning of this Court in the case of Federation of Pakistan v. Haji Muhammad Saifullah Khan (supra). The words that "a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of Constitution" are of wide import. If a Government, in order to remain in power, has to purchase the loyalties of the M.PAs. By allotting plots or granting other benefits in cash or kind at the cost of the public exchequer and/or is to induct them as Ministers and Advisors for the above purpose, in my humble view, it cannot be said that the Government is being carried on in accordance with the provisions of the Constitution. Reverting to the present case, it may again be pointed out that the respondents' case before the High Court was that the impugned order was passed on the basis of Annexures R/2, R/3 and R/4, about which I have already held hereinabove that they have no nexus with the grounds mentioned in the Corrigendum and Article 112(2)(b) of the Constitution and, therefore, the same cannot form basis for sustaining the impugned order.
29. In this view of the mattes, the impugned majority judgment of the High Court is unexceptionable. I have given my serious thoughts to the question, whether the impugned majority judgment is to be maintained in the original form, which includes the restoration of the dissolved Assembly and the dismissed Cabinet or because of changed situation, it is to be modified.
It was urged by Mr. Iftikhar Gilani, learned counsel for respondent No.l, that if the dissolved Assembly and the dismissed Cabinet are not restored, it would amount to putting premium on the impugned illegal order and that in no case, it would be possible to restore a dissolved Assembly and a dismissed Cabinet, as by the time the case would be finally adjudicated upon by this Court, the elections would have taken place.
The above contention is not without force, but at the same time, I cannot overlook the fact that the electorates who are the real sovereigns in a democratic set-up, have expressed their will. The newly-elected Assembly and the new Cabinet have been functioning for the last about a year.
Neither the M.PAs_ of the new Assembly nor the Ministers and Advisors of the new Provincial Ministry are before us. Neither they have been impleaded as parties nor any notice has been issued to them. It would, therefore, be not just and fair to condemn them unheard. 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 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.
I may observe that there is stream of authorities of the Pakistani Superior Court as well as of the Courts 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).
30. Tam, therefore, of the view that the impugned majority judgment is to be maintained with the modification that the relief of restoring the dissolved Assembly and the dismissed Cabinet is omitted. With the above modification, appeals are dismissed. However, there will be no order as to costs.
(Sd.)
AJMAL MIAN, J.
RUSTAM S. SIDHWA, J.-_-This is an appeal by the Province of (Rustam S. Aianwa, J)
North,West Frontier, appellant, against the decision of a Special Bench of the Peshawar High Court dated 26/29-9-1990 accepting the writ petition filed by Aftab Ahmad Khan Sherpao, rdspondent - No.l, declaring th4 order of the President of Pakistan dated 6-8-1991 dissolving the N.-W.F.r.
Provincial Assembly and its Cabinet as ultra vices of the Constitution and restoring to life both the Provincial Assembly and the Cabinet . ...
I have read, the leading judgment of my learned brother Shafiur Rahman, J., but since there are various matters which ha has not touched in his judgment and there are others where our perceptions differ, it is necessary to express myself separately, which I do so herewith. .
2, This appeal has been argued at length with great patience and dedication by very able and versatile counsel for the parties, whose names have been given in the head note of this judgment, for whose labour and presentation we all are indeed grateful. I would be ungrateful if I did not record my own personal appreciation, which I herewith add, out of respect for the highly capable and sophisticated presentation of this case, which has helped us greatly in understanding the various legal and factual matters involved.
3. Regarding the preliminary objection raised by the learned Attorney General that as no notice was issued to him under Order XXVIIA rule 1 of the Code of Civil Procedure by the learned Judges of the High Court to assist them before determining the Constitutional questions of law concerning the Federal Government that were involved in the case and therefore their judgment stands vitiated, I wish to record that I have read the able judgment of my learned brother Ajmal Mian, J., in respect of this objection, with which I fully agree and hold that, no such notice 'was required to be served on him. In the instant case the Federal Government was a party which had been duly served. It is not the case of the Attorney-General that he had not been engaged by the Federal Government to defend the instant case. The Order assailed was that of the Governor of the N.- W.F.P. And not of the President or of the Federal Government. This Court in Federation of Pakistan v.
Haji Muhammad Saifullah Khan (PLD 1989 SC 166) had already interpreted a similar Constitutional issue, on which the High Court would not have found any good grounds to differ. The judgment of the High Court does not stand vitiated on any account. The objection of the learned Attorney- General has no merit and must be rejected.
4. Whilst on the topic of Attorney-General, it is stated he is a man of many parts, has manifold rights and acts in various capacities. First, ex officio to speak and otherwise take part in the proceedings of the Senate or the National Assembly, or a joint sitting or any committee thereof, of which he may be named a member, without the right to vote, under Article 57 of the Constitution.
Second, ex officio to represent the Federal Government in legal matters as its Principal Law Officer.
Third, as amicus curiae. And fourth, as intervenor. In the first capacity, he takes part in parliamentary debates and committees and has a right to be heard. This is by virtue of Constitutional privilege. In the second capacity, he appears by virtue of his office as Principal Law Officer to represent the Federal Government in legal proceedings. If so authorised. Except the case covered by Order XXVIIA of the Code, where it is expected he would attend, he cannot be forced by a Court to attend. The mere fact that he is holding this office, does not mean he can be personally served and asked to attend. Even where the Federal Government is a party and is served, he may appear or he may not appear. Under Article 100 (3) of the Constitution, he can only pursue or defend a case if it is referred or assigned to him by the Federal Government. If he is not authorised to file or defend a case, he need not put in an appearance; and even where suo motu he desires to attend or intervene or ask to be made a party in a case. I assume he would secure authorisation post facto. In the third capacity, when called upon as amicuc by a Court, he assists the Court as a friend. In this capacity, he does not appear to defend or support the interests of the Government, but assists the Court by giving his impartial and independent views in the matter. In this capacity he is invited by the Court to assist.
He does not solicit such invitation. In the fourth capacity, he can intervene on behalf of the Federal Government, where its interests are likely to be affected, and can even request the Court to implead him or Federal Government as a party, in which case he can file pleadings, lead evidence, argue the case and file an appeal thereafter against any decision that may be given by the Court.
5.Before dealing with the main case, I would like to mention that the High Court was not properly assisted in the case. No proper preparations were made by the Provincial Government immediately after the issue of the Dissolution Order, so as to remain prepared for any writ petition that would be filed to challenge it, which was expected. After the writ was filed. No effective steps were taken to collect all relevant documents so as to ensure proper defence on behalf of the said Government. The affidavits necessary for its defence were also not sought or secured. The three affidavits and a mass of documents now brought on the record before this Court, in support of the grounds contained in the Dissolution Order and those not contained therein. Were not filed before the High Court. The relevant case-law now presented before us in connection with the mandatory requirement of the Court to give notice to the learned Attorney-General under Order XXVIIA, Rule 1.
C.P.C. Was not cited before the learned Judges. The Judges were dealing with the case on a day- to-day basis, subject to all just exceptions, to speedily deal with a matter which required urgent attention, for which they must be commended. Since no documentation worth the name was presented before them in defence of the case of the two Governments, the learned Judges perhaps felt that the said Governments were not interested as they had no case; and since the case law now cited before us was not presented before them, they were not made aware of the importance of the notice that was required to be served by them on the learned Attorney-General.
These unfortunate circumstances have contributed in no small measure to the judgment which the learned Judges passed, which perhaps they would not have delivered if the proper documents relevant to the Dissolution Order and the grounds stated therein had been filed and the case-law under Order XXVIIA of the Code brought to their notice. The learned Judges have been robbed of the protection which was due to them by the case not being conducted with due care and attention. The diligence with which they handled the case almost on a running basis to effectively deal with a matter that required speedy disposal, which conduct otherwise should have earned them credit, by the reversal of their judgment, has now rebounded against them and placed their integrity, in the public estimation, under a cloud. For this catastrophe the heaven itself did not even shed a drop of rain in pity. However, I hope that these few lines will to some extent explain the basic cause behind the reversal and relieve the learned Judges from remaining victims of circumstances which were not of their own making.
6. A matter of some importance which arises in this case is regarding a mass of documents which have now been filed before us to justify the Governor's Dissolution Order, which documents were neither relied upon nor filed before the High Court, whilst the case was being pressed and heard.
The learned Judges in their judgment referred to only four documents Exhs.R.l to R.4 which both the Governments had filed before them, apart from the statement of Mr. Zahurul Haq, Advocate for the N.-W.F.P. Government, which was recorded by them on 23-9-1990 pursuant to their inquiry. The judges also recorded the fact that when they asked the said counsel for the Provincial Government whether he would like to place before them any document in support of his statement, he had nothing to add to whatever he had stated. This lament is significant in that no proper documentation was produced before the learned Judges which perhaps was present, and which prompted them to deliver a judgment which they would never have done, had all this material been placed before them. The counsel responsible for this debacle owe an apology to the learned Judges of the High Court, which they should discharge by way of pure courtesy alone, if not anything else, to soothe the great embarrassment caused to them. In Muhammad ShariPs case (PLD 1989 Lah.725 at 776) I had the occasion to refer to the necessity on the part of Government to file proper affidavits to support the grounds on which dissolution may have been ordered and the consequences flowing from such failure. Whilst following the rule, but not unmindful of the fact that on an issue of such far-reaching national importance as the present, one should not be toe stringent to shut out evidence which was present, the only proper departure that can be made is to receive and consider such affidavits and documents which have now been lodged which only support the grounds given in the Dissolution Order and as regards grounds not given in the said Order if by affidavits or other cogent evidence the appellants can reasonably show that such material was present and considered by the Governor when he formed his opinion to dissolve the Provincial Assembly. Since no such affidavits have been filed with regard to the latter category, grounds not contained in theDissolution Order cannot be taken into consideration and I would not like to receive or consider any documents now offered in support thereof, as to do so would be to enlarge the scope of the Dissolution Orddf indirectly by aside wind.
7. In order to understand the controversy it is. Necessary to know something about the nature of our Constitution. In the case of Kh. Ahmad Tariq Rahim v. Federation of Pakistan (CPLA 628 of 1990, decided by this Court on 4-11-1991) PLD 1992 SC.646, I had the opportunity to refer to this matter which I did not in paras. 3 to 11 thereof, which may be treated as basic in understanding this case.
8. Again, the history of the provisions relating to the breakdown of the Constitutional machinery as contained in para. (b) of clause (2) of Article 58 and para. (b) of clause (2) of Article 112 of the Pakistan Constitution, 1973, have been traced and analysed by me in paras. 12 to 15 in Kh. Ahmad Tariq Rahim's case (supra), which analysis in particular, I would treat as applicable and relevant to this case. I drew a distinction between situations which were basic for the action that could be taken under these two provisions and those that were peripheral. The undernoted extract from para. 19, which is relevant in this respect, may be reproduced here with advantage:- 'The total material presented to the Court showing the difficulty of the party in power having tenuous support from its members, in not being able to carry on the function of the Government with confidence and .Of responsibility, the deliberate deadlock created by a party or group of parties or deadlock arising from an indecisive electoral verdict or some other situation constantly impairing or making the smooth running of the Government practically impossible, or no party in the legislature being in a position to form the Government internal subversion attributable to the party in power, the continuous running of the Government in utter disregard of the Constitution, the total rejection by the people of the party in power exemplified by continuous mass processions, strikes and unrest on a national or provincial scale, are basically situations which have a nexus with the failure of the Constitutional machinery. Other stray, or a number of, violations of the Constitution unless by themselves so grave that a Court could come to no other conclusion but that they alone directly led to the breakdown of the functional working of the Government, would not constitute valid grounds. However, where one of the basic situations constituting breakdown of the Constitutional machinery, as stated above, is present, violations of the Constitution, where they have contributed to or been the cause of the breakdown, could be treated as valid supportive factors to the decision. Non-compliance of general law, failure to hold or call meetings under the provisions of the general law, misuse of the authority or resources of the Federation or of the Provinces or of statutory or autonomous bodies, unauthorised or irregular interference in Service matters and disruption in their regular and orderly working some failure to maintain law and order; or the resultant effect arising from such situations, such as the climate of uncertainty if any created thereby, the sense of insecurity created at different levels of administration, the rejection by the people of some actions of the party in power, creation of some threats to law and order, the weakening of the judicial process would not normally provide grounds for action under Articles 58(2)(b) or 112(2)(b) of the Constitution, though they may, with other factors provide to the Court the total picture showing some of the other I matters that attended the breakdown, or to show the resultant effects arising therefrom. This Court cannot sit in appeal over a dissolution order or substitute its findings for the opinion of the President but dividing line would have to be kept in mind between certain basic situations which can be treated as leading to breakdown of the Constitutional machinery and as having nexus with the provisions of the two Articles of the Constitution that provide for dissolution, strong Constitutional violations which the Courts may hold as directly leading to the breakdown of the functional working of the Government and other peripheral Constitutional violations, which contribute to or may be the cause of the breakdown, and can be used as supportive factors, where basic situations exist. This is apart from the question of quantum or sufficiency of the material, over which this Court has no concern." .
It is in this context that the action _of the Governor will have to be judged.
9. I would now turn to the main case. The learned Judges of the Peshawar High Court treated the corrigendum issued by the Governor on 16-9-1990 as reflecting on the supercilious manner in which the elected Assembly of the Province was dissolved and as supporting the allegations of Aftab Ahmad Khan Sherpao "that the act of the dissolution of the Provincial Assembly was not based on objective consideration".
10. The learned Judges a little later then dealt with the question relating to the prior approval of the President of Pakistan and whether the advice of the Prime Minister was taken by the President before granting his approval for the dissolution of the Provincial Assembly. The learned Judges found despite the oral statement made by Mr. Zahurul Haq, counsel for the N.-W:F.P. Government, in Court, that the Government had failed to produce enough material to prove that the prior approval of the President was obtained and even assuming that prior approval had been obtained, that the approval was not accorded by the President on the advice of the Prime Minister.
11. It appears that originally the Governor's Order No.Legis.4(1.)/77, dated 6-8-1990, was notified on 7-8-1990, wherein the grounds of dissolution were not given, but later a Corrigendum reproducing the Governor's Order dated 6-8-1990 was notified on 16-9-1990, wherein the undernoted grounds were given to justify the dissolution of the Provincial Assembly:- "The usefulness and the mandate of the Provincial Assembly of North West Frontier Province as an elected body under the Constitution have been defeated by continuous and widespread corruption including misapplication of public funds and `horse-trading', change of loyalties in violation of law by the holders of representative offices for political and personal gains, by the functionaries of the Government, local and statutory authorities functioning under its control so that the orderly functioning of the Government in accordance with the provisions of the Constitution including the requirements of oath(s) prescribed thereunder and the law is not possible and further the Members have lost the confidence of the people."
12. It is the case of the learned Attorney-General that the question of want of approval by the President or lack of advice by the Care-taker Prime Minister were not directly taken by the respondent in the writ but that he had in fact accepted the position that approval and advice were present. It is urged that on 6-8-1990 at about 5-00 p.m. The Governor of the N.-W.F.P. Attended the oath-taking ceremony of Mr. Ghulam Mustafa Jatoi, Care-taker Prime Minister of Pakistan, at Islamabad, just after the National Assembly had been dissolved where the President of Pakistan was also present, that after the said ceremony the Governor held a meeting with the President of Pakistan and the Care-taker Prime Minister at 5-30 p.m., where, after due deliberation and agreement between the said three persons, the Order of Dissolution, as partly quoted above but fully reproduced at page 115 of the paper-book, was approved by the President, that after 6.00 p.m.
The Governor, N.-W.F.P., left for Peshawar by air in his plane on 6-8-1990 and that on reaching Peshawar he held a Press Conference there at about 7-30 p.m. Where he announced the Order of Dissolution, the text of which was carried by the `Frontier Post' of Peshawar and `The Pakistan Times' of Rawalpindi in their issues of 7-8-1990. In support of these facts, the affidavit of Capt. Adnan Janjua, A.D.C. To the Governor, N.-W.F.P. Dated 18-10-1990 and that of Col. Muhammad Ajaib, Military Secretary to the President, dated 3-11-1991, are referred. In support of the defective notification of 6- 8-1990 having been issued by Mr. Fazlur Rahman Khan, Additional Secretary (Law), N.-W.F.P.
Government under a bona fide mistake which was corrected later by a Corrigendum on 16-9-1990 the affidavit of the said Additional Secretary (Law) dated 18-10-1990 is also referred. The two newspaper reports have also been read out. The statement Exh.H.C./1 of Mr. Zahurul Haq, counsel for the N.-W.F.P. Government given in Court on 23-9-1990 in defence to the wishes of the Court to find out whether any material was there to show that the President had granted approval has been read out to show that he had contacted the Governor in that connection, who had informed him that he had gone to Islamabad on the evening of 5-8-1990, which really should be read as 6-8- 1990, carrying a rough drafts with him and that he had met the President, who had approved the order which he had announced on 6-8-1990. It is also urged that a notification takes effect from the date of signing of the notification and not from the date it is gazetted and that where a Corrigendum to a notification is issued, the Corrigendum takes effect from the date of the original notification. In this connection, Muhammad Siddiq v. Market Committee, Tandlianwala (1983 SCMR 785) arid Government of Pakistan v. Sikander Khan (PLD 1987 Pesh. 68) are referred. It is next contended that as there was no non obstante clause prefixed to Article 112(2)(b), by virtue of Article 48(2), the discretion of the Governor to dissolve or not to dissolve the Assembly was not justiciable.
13. On behalf of the respondent it is submitted that where an Article of the Constitution does not refer to an order being passed or a notification being issued, a written order to that effect followed by a notification has to be issued. In such a case, if the notification is disputed the order can always be seen. It is submitted that the rough draft of the Governor's Order containing the grounds which the Governor took with him to show to the President of Pakistan was never produced in Court; that no affidavit of the person who prepared that draft or of the Secretary or Private Secretary of the Governor who attended the Governor on his trip on 6-8-1990 was lodged to show that such a draft earlier prepared was carried to Islamabad and shown to the President and the Caretaker Prime Minister, who approved the same; that the affidavits of Capt. Adnan Janjua, A.D.C to the Governor, Col. Muhammad Ajaib, Military Secretary to the President, and Mr. Fazlur Rahman Khan, Additional Secretary (Law), were not filed in the High Court and the affidavit of Capt. Adrian Janjua, A.D.C. Was not of a disinterested witness, as he was the son of the Governor himself; that the affidavit of the Military Secretary to the President did not disclose that the President had seen the rough draft and given the approval after securing the advice of the Prime Minister; that there was no affidavit of the Secretary or Private Secretary to the Care-taker Prime Minister showing that the Care-taker Prime Minister had also seen the rough draft and advised the President to grant the approval; that on the question of grant of prior approval and advice, the only proper persons who could have deposed about the matter were the President and the Care-taker Prime Minister themselves or their Secretaries or Private Secretaries, but not a personal affairs-cum-ceremonial officer like an Aide de Camp of the Governor, for the Governor had no connection with the giving of the prior approval or advice; and the fact that the best evidence was not produced only shows that no such rough draft was carried nor shown to the President or the Care-taker Prime Minister. It is stated that without securing any prior approval to any approved text of any Dissolution Order, an oral order at best was obtained to dissolve the Provincial Assembly, which was carried out by the Governor at Peshawar later, who there prepared a Press statement giving grounds, which he issued to the Press representatives. This, it is submitted, accounts for the fact why the earlier Notification of 7-8-1990 did not give any grounds for the dissolution and why the Corrigendum was issued so late as 16-9- 1990. It is next contended that according to Mr. Zahurul Haq counsel's statement, the Governor had gone to Islamabad on 5-8-1990 to secure the President's approval, but on the said date Ms. Benazir Bhutto was the Prime Minister and her advice should have been sought by the President, which never was done and as the President in any case could not have acted without seeking the advice of the Prime Minister, in view of Article 48(1) of the Constitution, the action taken was unconstitutional.
14. In the first instance it must be stated that Aftab Ahmad Khan Sherpao, respondent did not directly raise the objection in the writ petition that the President's prior approval or the Care-taker Prime Minister's prior advice had not been taken before the Dissolution Order was signed, other than the objection that the same did not disclose any grounds and that it had not been passed on an objective appraisal of facts having a nexus with the requirements of the Constitutional provision. This alone is sufficient to defeat the objection regarding approval and advice being non- existent. I would now turn to the objection that the Dissolution Order does not disclose any grounds.
The statement Exh.H.C./1 of Mr. Zahurul Haq, counsel for the N.-W.F.P. Government recorded by the Court on 23-9-1990 unfortunately contains a mistake, in that it, refers to the date of the Governor's visit to Islamabad as on the evening of 5-8-1990 instead of that of 6-8-1990. The proper date appears to be 6-8-1990 if the affidavit of Capt. Adrian Janjua is referred to. The counsel's statement clearly shows that pursuant to his telephonic inquiry, the Governor of the N.-W.F.P. Had himself informed him that he had taken along with him a rough draft to Islamabad, that he had met the President there, who had approved the order, which he had announced on 6-8-1990 in the Governor's House at Peshawar. The learned Governor had no reason to give a false statement, nor is it suggested on behalf of the respondents that he did so. Since the inquiry was only in respect of the President's approval, the answer was short and brief in that respect. Since the counsel had not made any inquiry regarding the Care-taker Prime Minister's advice, the Governor did not proffer any answer in that behalf. There is no doubt that the Governor also attended the oath-taking ceremony of the Care-taker Prime Minister and it cannot be imagined that he was not in the deliberations which led to the approval being granted.. In the face of the statement of the Governor, any need for statements on affidavit of other officers of the President's or the Governor's staff as to whether approval was given or advice secured, does not arise. On the basis of the statement Exh.H.C./1 of the counsel for the N: W.F.P. Government and the affidavits of Capt.
Adrian Janjua, A.D.C. And Col. Muhammad Ajaib, Military Secretary, supported as they are very strongly by the issues of `the Frontier Post' of Peshawar and `The Pakistan Times' of Rawalpindi dated 7-8-1990, there cannot be any doubt that the Governor had perhaps been called post haste to Islamabad on 6-8-1990, that he rushed there with his Aide de Camp, that he also had the rough drafts of the Dissolution Order with him, that at 5-00 p.m. He attended the oath-taking ceremony of Mr. Ghulam Mustafa Jatoi, the Care-taker Prime Minister, after the National Assembly had been dissolved, that after the said ceremony the Governor had meeting with the President and the Care- taker Prime Minister at 5-30 p.m., where, after due deliberation and agreement between the said three persons, the Order of Dissolution was approved by the President, that soon after 6-n0 p.m.
The Governor then left for Peshawar by plane and that he held a Press Conference at Peshawar at 7-30 p.m. Where he announced the Order of Dissolution, copies of which were distributed, and the text of which order was carried by two daily newspapers in their issues of 7-8-1990. It cannot therefore be doubted that before the Governor had. Signed the Order, the grounds given therein had formed the basis on which he had formed the opinion that the Government could not be carried on in accordance with the provisions of the Constitution and that the President of Pakistan and the Care-taker Prime Minister had both given their approval thereto, whereupon he had exercised his discretion to dissolve the same. The fact that originally the Dissolution Order without the grounds had by inadvertent mistake been notified, copy whereof was supplied to Mr. Aftab Ahmad Khan Sherpao, the then Chief Minister, but that later the same was corrected by a Corrigendum on 16-9-1990, the true facts whereof were later communicated to the High Court, with the full text of ~ the actual Governor's signed Dissolution Order, does not militate against the true case of the appellants. The Corrigendum took effect from the date of the first notification. The observations of the learned Judges in respect of the supercilious manner in which the elected assembly was dissolved or that it supported the allegations of the ex-Chief Minister that the dissolution was not based on objective considerations, or that the prior approval of the President was not obtained, or that even if obtained the approval was not accorded on the advice of the Care-taker Prime Minister, cannot therefore be accepted.
15. The learned Judges then dealt with the question whether the order of the Governor dissolving the Provincial Assembly under Article 112(2)(b) was open to judicial review, which they answered in the affirmative and held against the Government. I need not drag a greater length of chain in the matter, other than observe that under para. (b) of clause (2) of Article 112 of the Constitution, the Governor first has to form an opinion that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, that an appeal to the electorate is necessary and that the prior approval of the President has been obtained. In accordance with the rule laid down by this Court in Haji Saifullah's case (PLD 1989 SC, 166), the Governor has to first form an opinion on the first two matters stated above objectively on some material which has nexus with Article 112(2)(b) and it is only when this has been done and the prior approval of the President obtained that the Governor can exercise his discretion to dissolve or not to dissolve the Provincial Assembly. The formation of the opinion and the obtaining of the approval are different matters from the exercise of discretion 'as provided in para. (b) of clause (2) of Article
112. The first is subject and open to judicial review. There is no Constitutional ouster stating that the validity of the opinion formed by the Governor shall not be called in question in any Court on any ground whatsoever. In line with the rule laid down by my learned brother Shafiur Rahman, J. In Haji Saifullah's case (supra), I would hold that the jurisdictional facts to support a finding that a proper opinion was formed and the prior approval obtained have to be shown and the Court has a right to examine the facts to find out whether the opinion was objectively formed and the prior approval actually obtained, as a part of its statutory duty enjoined by the Constitution. Once it rinds that such jurisdictional facts exist, the exercise of discretion by the Governor, which is only limited to deciding whether the Assembly should be dissolved or not, even P if it be treated as not open to judicial review, in view of Article 48(2) read with I Article 105(5), would hardly make any difference.
Here it may be stated that the exercise of discretion may relate to a matter where both the opinion to be formed and action to be taken constitute a composite matter, both covered by the discretion to be exercised, or it may relate to a matter where the opinion to be formed and the approval to be obtained constitute conditions precedent for the exercise of the discretion, where the formation of the opinion and the obtaining of the approval are no part of the exercise of discretion, but extraneous to it. Article 112(2)(b) covers the latter case. The non obstante clause in Article 58(2)(b) is not to be found in Article 112(2)(b). Even assuming that the limited question with the Governor, whether to dissolve or not to dissolve the Provincial Assembly, was not open to judicial review the larger question whether proper material was before the Governor on the two matters stated in para. (b) of clause (2) of Article 112 of the Constitution on which he had to form his opinion and whether prior approval was obtained, were open to examination by the Court to determine whether theaction taken .Was within the parameters, laid down by the Constitution in that behalf.
16. 1 will now turn to the general reasons given by the High Court in not accepting the grounds given by the Governor for the dissolution of the Provincial Assembly. The learned Judges held that despite their anxiety to rind out the substance in the serious allegations levelled against the members of the Provincial Assembly and functionaries of the Government and of the local and statutory authorities, none of the counsel appearing for the two Governments were able to provide them with concrete information to substantiate the said allegations, or to give instances, details or material which led to the formation by the Governor of his opinion about such members and other functionaries and that the allegations were otherwise vague and general. The learned Judges then proceeded to deal with certain grounds specifically.
17. As regards the Dissolution Order, it must be noted that the specific grounds given therein are "inter alia" among others. There could be some other grounds which may have been considered by the Governor but when the final Dissolution Order was passed, the. Same stood inadvertently omitted therefrom. That would not mean that grounds other than those mentioned in the Dissolution Order were not present or considered or could not be urged before the Court. It would be for the Government to furnish proper proof to show that same were present and considered and how they were inadvertently left out from the final Order. Letters or speeches of Governors, Ministers, etc., explaining the reasons for the dissolution, where such letters have been written or speeches delivered have been considered by Courts in support of the grounds. If any authority is required for this view, the case of State of Rajasthan v. Union of India (AIR 1977 SC 1361) may be referred, where the letters of the Union Home Minister to the Chief Ministers of nine States, each one almost identically phrased, requesting them to advise their Governors to dissolve the State Assemblies and seek a fresh mandate from the electorate, and the speech of the Union Law Minister on AIR Radio in the same context, were appraised to consider whether they were not unconstitutional and illegal and whether the aggrieved States. Were not Constitutionally or legally obliged to comply with or to give effect to the Home Minister's directive. Again, where the Federal Legislature, with one or more Provincial Legislatures are dissolved, the Dissolution Order of the President or his speech explaining why an appeal to the electorate has become necessary in respect of the Federal Legislature, can also be considered if it has some nexus, when examining the case of the Provinces. The President's Dissolution Order and/or speech in such a case, would legally become an integral document to the Governor's Dissolution Order for the purpose of appraisal.
Again, the Dissolution Order is not meant to be a detailed document providing the evidence for the .Grounds stated, though the speech of the President or Governor or the Minister concerned may be so, throwing some light on the grounds given. Some latitude would therefore have to be made for the cryptic manner in which the grounds may be stated in a Dissolution Order.
18. In the instant case the President of Pakistan by Order dated 6-8-1990 dissolved the National Assembly of Pakistan and simultaneously the four Governors of the four Provinces by separate Orders dissolved the four Provincial Assemblies. The Sindh and North-West Frontier Assemblies were dissolved under Article 112(2)(b) by the Governors in their discretion, after securing the prior approval of the President. The Punjab and Balochistan Assemblies were dissolved under Article 112(1) by the Governor, on the advice of their Chief Ministers. The Order of the President dated 6-8- 1990 inter alia mentioned:- "(a) The utility and efficacy of the National Assembly as a representative institution elected by. The people under the Constitution; and its mandate, is defeated by internal dissensions and frictions, persistent and scandalous `horse-trading' for political gain and furtherance of personal interests, corrupt practices and inducement, in contravention of the Constitution and the law, and by failure to discharge substantive legislative functions other than the adoption of the Finance Bill, and further the National Assembly has lost the confidence of the people.
(b) The Constitution envisages the Federation and the Provinces working within the spheres respectively assigned to them with clearly delineated executive and legislative authority; and with a view to safeguarding the structure of the Federation also contains special provisions of mandatory nature to ensure and protect the authority granted to the Provinces, by creating specific Constitutional institutions consisting of Federal and Provincial representatives, but the Government of the Federation has wilfully undermined and impaired the working of the Constitutional arrangements and usurped the authority of the Provinces and of such institutions resulting in discord, confrontation and deadlock adversely affecting the integrity, solidarity and well-being of Pakistan, in that, inter alia: (i)The Council of Common Interests under Article 153, which is responsible only to Parliament, has not been allowed to discharge its Constitutional functions and exercise its powers despite persistent demands of the Provinces, and Parliament has also not been allowed to function in this regard as required by Articles 153 and 154, and in relation to Articles 155 and 161.
(ii)The National Finance Commission under Article 160 has never been called to meet and allowed to function, thus blocking mandatory Constitutional processes in the matter of allocation of shares of revenues to the Provinces despite their persistent demands.
(iii)Constitutional powers and functions of the Provinces have been deliberately frustrated and extension of executive authority of the Federation to the Provinces in violation of Article 97 and by the general manner of implementation of the People's Programme."
The reference to the Council of Common Interests and the National Finance Commission not being allowed to function, directly affected the North-West electorate would not be out of place in respect of a Province run by a Government headed by the same political party; and if the right to choose its elected representatives is allowed earlier than expected, the process would not be in violation of the Constitution or against any Constitutional principle touching federalism. If the Federal character of the Pakistan Constitution is to be preserved, the Provincial Governments must be supportive of that at the Centre, with the Central Government holding the dominant position and facility to freely and effectively exert its views and policy on the Provincial Governments. Where a political party at the Federal level does not have a strong majority to be able to itself form the national Government, but has to rely on coalition partners to form a Government, its dismissal would impliedly affect similar coalition arrangements in the provinces which may be spearheaded by it. It is basically a case of "sympathetic affliction like "sympathetic detonation". If the functional ability of a political party to run the Coalition Government at the Centre is treated as impaired or having broke down, its credibility to run a Coalition Government in any Province would also be treated as suspect, or one requiring revalidation by the electorate, thus making it imperative for the party to seek a new mandate. If such a politics party is called upon to. Secure its mandate once again at the Provincial level t run the said Government, it would not be against any Constitutional principle or Federal norm.
21. I can now turn to the specific grounds taken up by the learned Judge They took up document Exh.R.2 filed by the Provincial Government to the limited legislative work taken up by the Government. The learned Judges held that the mere fact that five Acts were shown as having been passed by the Assembly did not mean that the Assembly suffered from any disability on that account as the two Governments were not able to show the fields which required legislation or the Bills that had been moved at which were not attended to, though the document showed appreciable other legislative work done by the members. The learned Judges then referred to two other documents placed on the record which related the N: W.F.P. Employees on Contract Basis (Regulation of Service (Amendment) Act, II of 1990, by which employees on ad hoc basis had be transformed into ad hoc appointees and whose services were then regularized and held that as the Acts .Had been validly passed by the legislature a assented to by the Governor, the same could not be made a ground for I dissolution of the Assembly.
22. As mentioned earlier, proper documentation with regard to grounds given in the Corrigendum were not filed in the High Court. 'l findings therefore arrived at by the learned Judges cannot be treated as vague or illegal.
23. There are basically three grounds in the Dissolution Order:-
(i) Usefulness and mandate of the Assembly being imparied or defeated by continuous and widespread corruption including misapplication of funds, `horse-trading', change of loyalties in violation of the law by holders of representative offices for political and personal gain, by the functionaries of the Government and by local and statutory authorities functioning under its control.
(ii)Orderly functioning of the Government in accordance with the provisions of the Constitution, including the requirements of the Oath and the law, being not possible, and
(iii) Members of the Assembly having lost confidence of the people.
With the documents then filed, tire scope of being able to hold that prima facie it could reasonably be inferred that these grounds existed, was faint, if not nonexistent. I would not therefore blame the learned Judges in having come to the conclusions, which they did. However, now from documents and Press reports which have continuously appeared and of which judicial notice can be taken, it appears that in December 1988 in a House of about 86 members, the main party i.e. The Pakistan People's Party (PPP), had about 19 members, that relying on roughly 13 members from the Awami National Party (ANP), about 15 members from the Independent members (IND), 2 from the minority members, 2 from the PPP women members and 1 ANP woman member, they formed a coalition. To start with roughly 5 Ministers were appointed from PPP, 5 from ANP and 3 from the IND and 5 Advisers were appointed from IND and (after a fortnight) 1 from ANP. There were thus 13 Ministers and 6 Advisers in a House of about 86. By mid-1989, all the ANP members and post holders resigned from the Coalition. In anticipation the PPP were able to win over about 10 members of the Islami Jamhoori Ittehad Party (IJI), who styled themselves as IJI (Forward Block). The IJI party which originally had 28 members, now had 18. The IJI (Forward Block) was offered 3 posts of Ministers and 1 of Adviser. The grant of four high offices against a defection of 10 from its total strength, clearly showed that the defection was for high reward. By August 1990, 6 further posts of Minister had been offered to the IND and 5 to the 1J1 (Forward Blocs:). -Thus the Coalition Government had 23 Ministers, 5 Advisers and 2 Special Assistants in a: House of about 86. The fact that about 35% to 40% of the ANP members, between 50% to 80% of the IND members and between 40% to 80% of the IJI (Forward Block) defectee members at different stages had been offered high offices, itself speaks of the I large rewards the PPP had to offer to members of its coalition partners to stay in power or defect from other parties. By the fact that horse-trading was rampant and freely utilised by the Coalition Government headed by the PPP, on the one hand, and the Combined Opposition spearheaded by the IJI, on the other, operating, both in the Centre and in the Provinces, which can fairly be , taken judicial note of from Press reports which have continuously appeared in that connection and from the President's speech to the Joint Session of Parliament, a fair inference can be drawn that the functional ability of the Coalition party to rule had become impaired, and if by the same process of `horse-trading' the IJI had succeeded, the breakdown of the Coalition Government would have taken place. Keen horse-trading and shifts of loyalty at stages when coalitions tend to become vulnerable, can be treated as reflective of serious functional disability bordering on imminent breakdown and as justifying the action for its dissolution. The reasons given by me are a magnification of the reasons given by the Governor in ground (i) above, and ground
(ii) can be treated as a corollary of ground (i), and I would hold that these two grounds stand proved and had a nexus with the requirement of the provisions of the Constitution which provided for dissolution.
24. I need not labour any further on grounds not found in the Dissolution Order which arc now sought to be urged, as I have already held that I cannot permit the Government to enlarge the scope of the Order or open up a new case.
25. For the foregoing reasons, I hold that the judgment of the Peshawar High Court, though correct on the merits of the case when delivered, now deserves to be set aside, due to proper documentation now being presented before us, which shows that the grounds on which the Governor formed his opinion to dissolve the Assembly had a proper nexus with the Constitutional provision obtaining in that behalf.
26. These appeals are therefore accepted and the writ issued by the Peshawar High Court is recalled. However, I would award full costs to the respondents, as the N.-W.F.P. Government were grossly negligent in the prosecution of the case before the High Court, but for which there would have been no necessity for these appeals and the respondents would not have been burdened with heavy expenses in defending themselves.
(Sd.)
Rustam S. Sidhwa, J.
SAJJAD ALI SHAH, J.---I agree with the judgment of my learned brother Abdul Shakurul Salam, J. But I do not subscribe to the observation made in paragraph 7 thereof with regard to the inefficacy of Article 58(2)(b) of the Constitution after death of Ex-President-General Ziaul Haq. In the result f both appeals are dismissed.
ORDER OF THE COURT By a short order dated 6th November, 1991, by majority, these appeal were allowed.
The detailed leading judgment by Mr .Justice Shafiur Rahman is the majority judgment of the Court. The individual opinions of some of the Hon'ble Judges are also on record.
The two appeals having been allowed, the judgment of the Peshawar High Court stands set aside.
There shall be no order as to costs.
(Sd.)
Muhammad Afzal Zullah, C J.
(Sd.)
Dr. Nasim Hasan Shah, J.
(Sd.)
Shafiur Rahman, J.
(Sd.)
Saad Saood Jan, J.
(Sd.)
Naimuddin, J.
(Sd.)
Abdul Shakurul Salam, J.
(Sd.)
Abdul Qadeer Chaudhry, J.
(Sd.)
Ajmal Mian, J.
(Sd.)
Rustam S. Sidhwa, J.
(Sd.)
Muhammad Afzal Lone, J.
(Sd.)
Sajjad Ali Shah, J.
(Sd.)
Wali Muhammad Khan, J.
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