' M. MEHBOOB AHMAD, CJ.---This judgment shall furnish details/reasons for the conclusions arrived at by us in our order dated 28-6-1993 whereby we accepted Writ Petition No, 5486/93 filed by Ch. Pervaiz Elahi, leader of Opposition in the Provincial Assembly of Punjab against the order dated 29- 5-1993 passed by the Governor of the Punjab whereby he dissolved the Provincial Assembly and may be read in conjunction with that order.
2. This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was originally presented on 30-5-1993 at 1-15 hrs before the Chief Justice who constituted the present Bench to hear this petition. The petitioner in the petition filed by him as stated above had reserved the right to supplement the grounds and submitted the complete petition on 30-5-1993.
3. The petition has been contested by the respondents who have filed separate written statements.
The petitioner has also filed rejoinder to the said statements.
4. As stated earlier this petition calls in question order dated 29-5-1993 of the Governor, Punjab purportedly passed at 4-00 p.m. On the advice tendered by the Chief Minister, Punjab (respondent No, 2 herein) in terms of Article 112(1) of the Constitution of Islamic Republic of Pakistan, 1973.
5. The main grounds on which the petitioner has assailed the dissolution of the Assembly are as under:--
(i) that the notice of resolution for vote of no-confidence against the Chief Minister, Punjab having been given, he in view of explanation to Article 112(1) of the Constitution stood denuded of his right to tender advice to the Governor to dissolve the Provincial Assembly;
(ii) that the advice as also the impugned order of dissolution have been fabricated by the respondents subsequent to the delivery of notice aforementioned; and
(iii) that the advice as also the order of dissolution suffered from mala fides and were collusive.
6. In the written statements filed by both the respondents apart from raising preliminary objections, it was asserted that no notice of any resolution for vote of no-confidence against the Chief Minister, Punjab was ever given by the petitioner or other members of the Provincial Assembly and the averment that such a notice was delivered at 12-00 noon to the Secretary of the Assembly was false. It was also pleaded that in any event the Chief Minister had tendered advice to the Governor to dissolve the Assembly at 11-35 a.m. At which time admittedly there was no notice of a resolution for vote of no-confidence pending against the Chief Minister, Punjab and, therefore, the notice even if given at 12-00 noon was of no legal effect. It was stated that Governor dissolved the Provincial Assembly at 4-00 p.m.
7. Alongwith the written statements affidavits of Mr. Manzoor Ahmad Wattoo, Chief Minister, Punjab and Acting Law Secretary, Government of the Punjab were filed. Affidavits sworn by Mr. Nasrullah Khan Draeshik a Minister in the Punjab Cabinet, Mr. Saeed Ahmad Manhais, Speaker, Deputy Speaker, Saeed Ahmad, Deputy Secretary Provincial Assembly and Amir Habib son of Secretary of Assembly have also been filed. Mr. Draeshik in his affidavit has deposed that he had delivered the envelope containing advice of the Chief Minister to the Governor Punjab at 11-35 a.m.
8. Mr. Khalid Anwar, Advocate, the learned counsel for the petitioner in support of this petition on the strength of explanation to Article 112(1) of Constitution of Islamic Republic of Pakistan, 1973 contended that as the petitioner alongwith 91 other members of the Provincial Assembly had served a notice of a resolution for vote of no-confidence against Mr. Manzoor Ahmad Wattoo, Chief Minister, Punjab, which was received by the Secretary, Punjab Assembly at 12-00 noon, the Chief Minister had no right or authority to advise dissolution of the Assembly and the consequent order of the Governor was illegal and void. According to the learned counsel, the plea raised by the respondents that the advice was tendered by the Chief Minister, Punjab to the Governor, Punjab at 11-35 a.m. Was false and concocted and as a matter of fact the advice was tendered and the order of dissolution was passed at a much later time rather on a later date after having learnt about the notice of resolution for vote of no-confidence. In support of the above submission, reliance was placed by the learned counsel on the affidavit of Mr. Ghulam Haider Wyne, Ex-Chief Minister, Punjab which was appended alongwith the rejoinder as also the affidavits of certain other members of the Assembly. The learned counsel also referred to certain reports/news/press clipping in order to establish the circumstances from which it could be inferred that neither the advice was tendered nor the order of dissolution was passed at the time alleged by the respondents.
9. In addition to the above, the petitioner referred to series of statements of the Chief Minister, published in newspapers wherein he made a declaration that the Provincial Assembly will not be dissolved. Particular reference was made to the statements appearing in newspapers on 12 and 16 May, 1993. He in the same context submitted that before and even after restoration of the National Assembly on 26-5-1993 the Chief Minister had always been giving out in categorical terms that the Provincial Assembly shall not be dissolved and that in fact it was on that assurance that the members of the Provincial Assembly had elected him as their leader. It was urged that the Chief Minister manipulated the tendering of advice and the order of dissolution collusively only after learning of the delivery of notice of resolution for a vote of no-confidence against him.
10. It was next argued that the advice tendered by the Chief Minister was mala fide and capricious inasmuch as the only object to tender advice was to stay in office for personal benefits and also to punish those members of the Assembly who had lost confidence in Mian Manzoor Ahmad Wattoo.
It was emphasised that the advice was tendered as a retaliatory measure and to avoid and frustrate the resolution for vote of no-confidence.
11. Arguments on behalf of respondent No, 1 were addressed by Mr. Fakhruddin G. Ebrahim, Advocate and Mr. Shahzad Jahangir, Advocate, while respondent No, 2 was represented by Mr. Abdul Hafeez Pirzada, Advocate and Raja Muhammad Anwar, Advocate. Mr. Abdul Hafeez Pirzada, Advocate also stated that he had the instructions from the Governor, Punjab as well.
12. The learned counsel for respondent No, 1 submitted as under:--
(i) That the case of the petitioner was that the notice of resolution of no-confidence having been delivered at 12-00 noon, the advice could not be acted upon. It was urged that since the petitioner has failed to establish this fact his case should fail, as it is well-established that the petitioner has to succeed on the strength of his own case and not on the weakness of the case of the respondent.
Reliance was placed in support of the above contention on:--
(1) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others reported as PLD 1973 SC 236;
(2) Wali Muhammad etc. v. Sakhi Muhammad and others reported as PLD 1974 SC 106; and
(3) Begum Shams-un-Nisa v. Said Akbar Abbassi and another reported as PLD 1982 SC 413.
(ii) that the question regarding timing of tendering of advice, passing of dissolution order and the delivery of notice of resolution for vote of no-confidence against the Chief Minister are all disputed controversies of facts and are not the appropriate subject for adjudication by this Court in exercise of Constitutional jurisdiction under Article 199 of the Constitution;
(iii) that the delivery of notice of resolution for a vote of no-confidence is tainted with doubts of serious nature and that it does not fulfil the requirements of Rule 162 of the Rules of Procedure of the Provincial Assembly of the Punjab;
(iv) that the receipt by the Secretary of the copy of the notice filed with the petition has been obtained by exerting undue influence and pressure on the Secretary who was abducted at about 9-00/9-15 p.m. From a hotel by the allies of the petitioner and about whose abduction an F.I.R. Had been lodged the same night; that the delivery of notice to the Secretary is otherwise also inconsequential as the notice is required to be delivered in the Assembly as explanation to Article 112(1) envisages service of the notice "in the Assembly" which would mean verbally on the floor of the house;
(v) that the explanation to Article 112(1) of the Constitution has to be very strictly construed as it places fetters on the power of the Chief Minister; ' In this connection, the learned counsel referred to the Constitutional Law by Dicey 10th Edition, page 433;
(vi) that in view of Article 105(2) of the Constitution this Court cannot inquire whether any, and if so what, advice had been tendered by the Chief Minister. It was also urged that Article 105(2) of the Constitution read with Article 248 thereof and the presumption of correctness attached to the official acts performed by such high functionaries make the tendering of the advice sacrosanct and not open to question before this Court;
(vii) that it is not a fit case for exercise of the Constitutional jurisdiction by this Court as the Provincial Assembly does not merit to be restored since the members have been indulging in horse-trading and have been making quick shifting of loyalties. It was urged that in fact in the circumstances the Governor should have himself dissolved the Assembly without even the tendering of the advice by the Chief Minister. Kh. Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another reported as PLD 1992 SC 646 was relied upon in this respect.
13. Mr. Abdul Hafeez Pirzada, Advocate, who appeared for the Governor as well as for respondent No, 2, the Chief Minister supplemented the contentions raised on behalf of respondent No, 2 in the following manner:--
(i) that mid-term elections are a norm and not an aberration and it is the right of the leader of the House to ask therefor and that this right cannot be refused to him;
(ii) that notice would mean a notice in the session of the Assembly and in no case to any officer of the Assembly or in the office of the Assembly;
(iii) that in order to correctly appreciate the aspects of dissolution on the advice of the leader of the House, various provisions of the Constitution as also Article 96 of the Constitution which has since been deleted will have to be looked into;
(iv) that the Chief Minister cannot be deprived of his right to dissolve the Assembly at any time in his discretion which right is wholly unfettered and unbridled and even a mala fide advice in this regard cannot be gone into as provided by Article 105(2) of the Constitution;
(v) that in order to save democratic order provisions of no-confidence should be strictly construed; and
(vi) that the fresh poll is needed for moral authority of the Government.
14. Mr. Khalid Anwar, Advocate, the learned counsel for the petitioner in reply contended that rule 18 of the Rules of Procedure of the Provincial Assembly is the rule applicable to the case in hand as it specifically deals with the matter of no-confidence motion. The other rule viz. Rule 162 deals with other kinds of notices. If there be two rules on a subject then the specific has the overriding effect on the one which governs the subject generally. In this case rule 162 starts with the phrase "save as otherwise provided" and, therefore, rule 162 would give way to Rule 18 ibid in the matter of applicability to a notice of a resolution for vote of no-confidence;
(ii) that if rule 162 is examined in the light of provisions of Article 112 it would be seen that the said rule if applied would make the Constitutional provision redundant which cannot be done;
(iii) that the words "in the Assembly" can be interpreted only by examining the meaning of the word "Assembly" first;
(iv) that by the amendment in the explanation to Article 112(1) the change envisaged was to ensure that a Chief Minister who has lost confidence of the majority should not be allowed to dissolve the Assembly;
(v) that if the words "in the Assembly" are construed as advocated by the other side then the provisions contained in the Explanation to Article 112(1) of the Constitution and Article 136 thereof will be rendered redundant which gives a right to 20% of the members to move for no-confidence;
(vi) that the protection against enquiry envisaged by Article 105(2) of the Constitution cannot be afforded to an advice which is mala fide as mala fide acts are wholly without jurisdiction and can be gone into by the Court. It was further submitted that mala fide advice even if it is to be taken as subjective is open to examination by this Court as the mala fides knock the basis out of every act.
Reference in this regard was made to:--
(1) Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan reported as PLD 1976 SC 57;
(2) Miss Benazir Bhutto v. Federation of Pakistan and another reported as PLD 1988 SC 416;
(3) Muhammad Anwar Durrani etc. v. Province of Balochistan through Chief Secretary and 10 others reported as PLD 1989 Quetta 25; and (3-A) Mian Muhammad Nawaz Sharif v. President of Pakistan and others reported as 1993 SCMR 1302.
15. From the respective contentions of the parties, the questions which fell for consideration by us were enumerated in para. 7 of our short order and are reproduced hereunder for ready reference:-
(a) Whether a notice of resolution of vote of no-confidence had been delivered to the Secretary of the Punjab Provincial Assembly at 12-00 noon on 29-5-1993, and if so, whether the notice delivered, was legal and effective in law?
(b) Whether the Governor had received the advice from the Chief Minister at 11-35 a.m. On 29-5- 1993?
(c) Whether the Governor had dissolved the Assembly at 4-00 p.m. On the same day, i,e, 29-5- 1993?
(d) Whether the advice tendered by the Chief Minister and or the order of the Governor, dissolving the Assembly were mala fide and collusive? And
(e) Whether the advice tendered by the Chief Minister cannot be inquired into by this Court for any reason whatsoever on account of the embargo placed by Article 105(2) of the Constitution?
16. Yet another question that should be determined by us is the true import of the words "in the Assembly" occurring in the explanation to Article 112(1) of the Constitution.
17. After hearing the learned counsel for the parties and perusal of record, we expressed our impression that it may not be possible to arrive at a categorical finding on some crucial issues involved in the case on the basis of available record.
18. Raja Muhammad Anwar, Advocate, the learned counsel for respondent No, 2 also submitted that in all fairness an inquiry into the facts would be called for in order to find out the truth particularly as regards the controversy of the timing of delivery of notice asserted to be 12-00 noon on 29-5-1993 and the asserted time of 11-35 a.m. Of the tendering of advice by the Chief Minister, Punjab.
19. Respondents also filed an application before us (C.M. No, 1252/93) for calling for cross- examination the deponents who had sworn affidavits, which have been filed by the petitioner in support of the assertion that he had served notice of a resolution for vote of no-confidence upon the Secretary of the Assembly at 12-00 noon on 29-5-1993. The learned counsel for the petitioner, however, objected to the adoption of this course by contending that the matter can be decided just on the basis of circumstantial evidence, publicly known facts and the affidavits. We, however, felt persuaded to accept the abovementioned application filed by the respondents. By our order dated 16-6-1993 we directed that those deponents on whom reliance has been placed by the parties shall be produced for cross-examination.
20. Mr. Khalid Anwar, Advocate the learned counsel for the petitioner stated that the petitioner would rely on the affidavits of the petitioner himself and of Mr. Ghulam Haider Wyne, Ex-Chief Minister Punjab. These two deponents appeared in the witness-box and were subjected to cross- examination by the respondents.
21. The respondents on the other hand placed reliance upon the affidavits of Mr. Nasrullah Khan Dreshak, Mr. Manzoor Ahmad Wattoo respondent No,2, Mr. Saeed Ahmad, Deputy Secretary Provincial Assembly and Mr. Saeed Ahmad Manhais the Speaker of the Provincial Assembly. These deponents were cross-examined by the petitioner's side.
22. It may be noted that on 30-5-1993, we directed the learned Advocate-General to keep all the documents and record relevant to the controversy available at the time of hearing of the petition.
On 31-5-1993, the learned counsel for the petitioner pointed out that the documents have not been shown to the petitioner. When learned counsel for respondents was asked about it, he only produced copy of the advice of the Chief Minister and order of dissolution passed by the Governor.
The learned counsel for the respondents were then directed to lay hand on all the relevant record so that it was available during the hearing but till 2-00 p.m. No documents reached. It was then again directed that the documents shall be brought by 2-30 p.m. In the office of the Secretary of the Chief Justice. This order was again not complied with. However, from the copy of the advice and dissolution order we noticed that copies of the order of the Governor were statedly received by certain officers of the Punjab Government. We accordingly directed the learned Advocate-General Punjab to ascertain and disclose the names of those officers who had dealt with the matter of advice and the dissolution. In response to this, two lists one by respondent No, 1 and the other by the Governor Punjab were produced in sealed envelopes. According to the documents aforementioned the following officers of the Punjab Government had dealt with the advice in the Secretariat of the Governor, the Chief Minister and in the Punjab Secretariat:--
(1) Mr. Javed Ahmad Qureshi, Chief Secretary, Punjab.
(2) Mr. Farooq Haroon, Secretary to Governor, Punjab.
(3) Mr. G.M. Sikandar, Secretary to Chief Minister, Punjab.
(4) Mian Ihsan-ul-Haq, Secretary Implementation and Coordination (S&GAD) Government of Punjab.
' In the light of this information we summoned the above officers and also recorded their statements. Statement of Mr. Muhammad Rafiq Goraya, Senior Editor, Pakistan Television was also recorded in order to find out certain aspects of the case.
23. Before proceeding to embark on any discussion on the subject, we may notice that according to the petitioner's case, the notice was got delivered by him to Mr. Habib Ullah, Secretary Provincial Assembly, the whereabouts of whom were not known and it was being stated that he was not traceable. No serious efforts were made by the parties to produce Ch. Habib Ullah except that an application was filed by respondent No, 2 for impleading him as a party which application was however dismissed, as he was neither a necessary nor a proper party. In this state of affairs we were compelled to issue proclamation which appeared in all the important newspapers for two consecutive dates as also through electronic media of radio and television calling upon Ch. Habib Ullah to appear before this Court on the dates specifically given, but unfortunately he failed to do so despite the assurance given by this Court that full protection shall be afforded to him. We also directed the following agencies of the Provincial Government as well as the Federal Government to cause production of Ch. Habib Ullah before us:--
(l) Secretary, Ministry of Interior, Government of Pakistan, Islamabad.
(2) Chief Commissioner, Islamabad.
(3) Inspector-General of Police, Islamabad.
(4) Chief Secretary, Punjab.
(5) Home Secretary, Punjab, and
(6) Inspector-General of Police, Punjab.
' All these authorities submitted their reports expressing their inability to find out Ch. Habib Ullah.
The Inspector-Generals of Police Punjab and Islamabad also appeared personally before this Court and explained that despite their best efforts Ch. I labib Ullah could not be traced for his production in Court.
24. We may now proceed to deal with the questions arising in this petition, which have been formulated in para. 15 above.
25. To establish that the notice of a resolution for vote of no-confidence against the Chief Minister was delivered to the Secretary of the Punjab Assembly at 12-00 noon on 29-5-1993, the petitioner had alongwith the petition filed a copy of the notice which was statedly received by the Secretary and on which an endorsement has been made by him acknowledging receipt thereof as 12-00 noon. It has not been explained in the petition as to where the notice was delivered to the Secretary. In the rejoinder filed by the petitioner, however, it was stated that the Secretary of the Assembly was not available in the Assembly Secretariat and, therefore, the notice was delivered to him at his residence. In the written statements filed by the respondents, there is no specific denial that the signatures under the aforesaid acknowledgment were those of the Secretary.
26. It may also be stated that Mr. Fakhruddin G. Ebrahim, Advocate, the learned counsel for respondent No, 1 on instructions from his client very candidly stated that the signatures on the notice are similar to those of Ch. Habib Ullah, the Secretary of the Assembly as appearing on various other official documents.
27. Raja Muhammad Anwar, Advocate, the learned counsel for respondent No,2, however, categorically denied the genuineness of the signatures during the course of arguments, but we are of the view that this plea is an afterthought inasmuch as in the written statement filed by respondents signatures of the Secretary on the receipt were not specifically denied or disputed. On the other hand, it is evident from the perusal of the written statement that the plea taken by respondent No, 2 was that the signatures were obtained from the Secretary by exerting undue influence and pressure on him.
28. It may pertinently be observed here that nothing has been placed on record by the respondents to substantiate their allegation of exertion of undue influence and pressure by the petitioner on the Secretary. No affidavit of the person who had lodged F.I.R. Was filed. Even in the F.I.R. There is no statement that some writing was obtained from the Secretary through undue influence or coercion. Although an affidavit of Amar Habib son of the Secretary of the Provincial Assembly was annexed with the written statement, but that affidavit too does not prove the case of the respondents as he did not depose that any undue influence or coercion was exerted by the petitioner or anyone else on his father. It is also to be noticed that respondents did not even produce Amar Habib for cross-examination by the petitioner and thus abandoned their reliance on his affidavit. The allegation of the respondents regarding exertion of undue influence and pressure on the Secretary, therefore, does not stand proved at all.
29. We are, therefore, of the view that the notice was delivered to the Secretary, who had acknowledged its receipt.
30. The next question which arises is as to whether the notice was given at 12-00 noon as alleged by the petitioner. To substantiate this assertion, the petitioner has filed as many as six affidavits of the persons who had gone to the Secretary to deliver it. Significantly, however, after it was directed that those deponents whose affidavits have been filed should be produced for cross-examination, the petitioner withdrew reliance of all the affidavits except those of Mr. Ghulam Haider Wyne and the petitioner. It is the petitioner's own case that he was not present at the time when the notice was delivered to the Secretary. That being so, the only proof put forth by the petitioner of delivery of notice at 12-00 noon is the affidavit of Mr. Ghulam Haider Wyne. However, after perusing the statements of witnesses, we do not feel it safe to place reliance upon the testimony as regards the timing of service of notice. We are fortified in this conclusion by the fact that during the cross- examination Mr. Ghulam Haider Wyne had admitted that signatures of Mr. Iqbal Leghari were obtained in the afternoon of 29-5-1993.
31. Mr. Khalid Anwar, Advocate, the learned counsel for the petitioner tried his best to dilute effect of this statement by stating that it was made under some misconception and misunderstanding, but we cannot subscribe to this view of the learned counsel in the face of the clear and unambiguous admission. Resultantly, it is not possible to agree that the notice was served at 12-00 noon.
32. Another fact which deserves attention in this respect is that the petitioner himself had not only not produced other deponents whose affidavits he had filed and who had allegedly accompanied Mr. Ghulam Ilaider Wync to deliver the notice, but Mr. Ghulam Haider Wync had also stated that he was at the relevant time accompanied by Mr. Abdul Ghafoor, a Federal Minister for Law and Justice.
This position is also substantiated from the photograph appearing in the daily Jang of 30th May, 1993, a copy of which has been placed on the record, which shows that the Secretary while receiving the notice was flanked by Mr. Ghulam Haider Wyne and Ch. Abdul Ghafoor. However, for reasons best known to the petitioner neither the affidavit of Ch. Abdul Ghafoor had been placed on record nor has he been examined. In this connection another circumstance which has significance is that if the notice of resolution for vote of no-confidence had indeed been given at 12-00 noon, why this fact was not disclosed till about 8-30 p.m. The petitioner belongs to the same party which is in power in the Centre and has control over the electronic media i,e, Radio and T.V. The explanation furnished by the petitioner as to the non-disclosure is that as a political strategy it was considered appropriate to wait till such time that the majority of the total members of the House indicate their willingness to support the motion. This explanation is hardly acceptable on account of admission of Mr. Ghulam Haider Wyne in his cross-examination that they had not instructed the members who signed the motion to keep this fact secret. Similarly if the notice was served upon the Secretary at 12-00 noon there appears no reason why the disclosure could not be made about it within reasonable time. We, therefore, hold that the petitioner has not been able to prove that he had served the notice for vote of no-confidence at 12-00 noon on 29-5-1993.
33. The next question which falls for consideration is as to whether the advice was tendered by the Chief Minister at 11-35 a.m. On which the Governor passed the order of dissolution at 4-00 p.m.
34. The following averments in the written statements of respondent No, 1 and respondent No, 2 may be relevant for determination of this aspect:-- Written Statement of respondent No, 1
(1) The advice was received by the Governor by hand from Mr. Nasrullah Khan Draeshik at 11-35 a.m.;
(2) the order of dissolution was signed by the Governor at 4-00 p.m.;
(3) the order of dissolution was communicated to the officers between 5-00 p.m. To 6-00 p.m.;
(4) Governor was busy attending matters necessary for giving effect to dissolution order between 5-00 p.m. To 8-00 p.m.;
(5) the Governor instructed his Secretary at 8-00 p.m. To call a press conference for 10-00 p.m.
Which was then held at 11-00 p.m. ;
(6) in para. 4 of the written statement of respondent No, 1 it has been stated that the matter of dissolution of the Assembly was in all propriety left to be dealt with by the Chief Minister in the Press Conference a bit later, the same evening, whilst in sub-para. (c) of para. 6 of the same written statement a different version regarding this matter has been given as under:- 'As for the electronic media, it is not controlled by the Provincial Government and the respondents are perfectly justified in assuming that the news was deliberately suppressed by the PTV, controlled by the hostile Federal Government, in order to make out some sort of a case against the dissolution of the Assembly.'
Written statement of respondent No, 2
(1) The advice was received by the Governor at 11-35 a.m. On 29-5-1993 through Sardar Nasrullah Dracshik, the Provincial Law Minister as deposed by the latter in his affidavit;
(2) the deposition in the affidavit of Sardar Nasrullah Draeshik is that on 29-5-1993, at about 9-00 a.m., the Chief Minister had told Mr. Draeshik on telephone that Mr. Mazhar Ali Khan, his son-in-law was bringing an envelope containing the advice addressed to the Governor for dissolution of the Punjab Assembly and that Sardar Nasrullah Khan Draeshik should personally deliver the same to the Governor.
35. In order to prove the aforementioned facts, respondent No, 1 relied on the affidavits of Mr. Nasrullah Khan Draeshik and Mian Manzoor Ahmad Wattoo, who were cross-examined by the petitioner's side.
36. In addition to this we had also examined some Government Officers whose names have been given above.
37. The position, which emerges from the statements of Mr. Nasrullah Khan Draeshik, Mr. Manzoor Ahmad Wattoo and the five Court witnesses may now be discussed. First the position with regard to delivery of letter of advice at 11-35 a.m. May be examined. Mian Manzoor Ahmad Wattoo, Chief Minister, in his cross-examination stated as under:-- "I had told the Law Minister my thinking about advice regarding dissolution and I asked him to prepare draft advice. He drafted it and the draft was put up before me which I approved, then it was fair typed and I signed it. The draft of the advice was prepared at Lahore and I took it alongwith me to Islamabad. I finalised it here. The finalised draft was taken by me to Islamabad because I wanted to discuss this matter with some of my friends and my party associates and with the President of my party. I signed it and placed the date also on it there. It is incorrect to suggest that the advice tendered by me was prepared in Lahore by my political associates at Lahore after attaining the knowledge through T.V. News that the notice of resolution of vote of no-confidence against me had already been lodged."
38. Again at pages 8 to 11 of the statement, the answers given to the cross-examination read as under:--- Question: Is it correct that by the time you left for Islamabad on 28-5-1993 you had no intention of advising the dissolution of Provincial Assembly?
Answer: It is incorrect.
' It is incorrect to suggest that I had not told the Law Minister about the drafting of dissolution advice before leaving for Islamabad on 28-5-1993. My statement in this connection today made is correct. I left for Islamabad on 28-5-1993 at about 4-00 p.m. In the Chief Minister's plane. In the plane with me travelled only my personal staff. None of my relatives travelled with me including Mazhar Ahmad, my son-in-law. Mazhar Ahmad, my son-in-law is employed in the Provincial Assembly of Punjab and is on leave these days. I had met with Mohtarima Benazir Bhutto on 28-5- 1993 at Islamabad. I had sent the envelope containing the advice through Mazhar Ahmad, my son- in-law as I had full trust and faith in him and I wanted to send it through a person of my utmost confidence. It is correct that the Government of Punjab has arrangements for sending special confidential messages.
' I have good relations with the Governor of Punjab. I had not talked to the Governor on telephone in regard to the tendering of advice as I considered that the advice, which is an important one, should reach the Governor through a responsible man and I thought the Law Minister is the appropriate person. It is correct that the matter of tendering and sending advice involved urgency.
The plane in which I went to Islamabad remained at Islamabad the whole of the night on 28-5- 1993 and I travelled in it on my return on 29-5-1993. It is correct that when the Chief Minister goes to Islamabad in his aeroplane, it remains there till the Chief Minister returns and is again sent for so as to bring the Chief Minister from Islamabad to Lahore in the same plane on 29-5-1993. The plane started from Islamabad at about 11-42 a.m. Since I wanted to send the advice through a person of my utmost confidence in him, the advice was sent by road and Mazhar was not entitled to travel in the Chief Minister's plane.
' With the Chief Minister any person can travel in Chief Minister's plane but when somebody is travelling independently only those who are entitled to travel in Chief Minister's plane use it. It is incorrect to suggest that I could send anyone including Mazhar in the Chief Minister's plane on official duty. There is no regular Camp Office of the Chief Minister in Islamabad but there is Punjab House in Rawalpindi in which there are arrangements for the stay of the Chief Minister.
' I had affixed my signatures on the advice on 29-5-1993 at 1-30 hours. Mazhar started from Rawalpindi by Car on 29-5-1993 at about 5-00 a.m. Question: Is it in your knowledge that PIA flights come from Rawalpindi to Lahore at 6-45 a.m. (Boeing flight) and at 10-00 a.m. (Foker flight)?
Answer. I do not know the exact timings of the PIA flights.
' There is a quota reserved for the Chief Minister on every flight of the P.IA. It is incorrect to suggest that I have given false statement that the advice was sent through Mazhar to Lahore.
Question: Did you establish contact with the Governor on reaching Lahore from Islamabad on 29- 5-1993?
Answer: I reached Lahore at about 12-30 p.m. On 29-5-1993 and on my arrival Mr. Nasrullah Draeshik told me that he wanted to talk to him in private something regarding the advice. We went to the house of Mr. Nasrullah Draeshik where he told me that the advice sent by me through Mazhar had reached him which he has delivered to the Governor. (Volunteered that after having had the above talk, I talked to the Governor on telephone from the house of Mr. Nasrullah Draeshik between 1-30 p.m. And 2-00 p.m. The Governor told me that the advice had reached him.
' Since I had talked to the Governor I did not consider it necessary to go to him personally. When I asked the Governor about the action taken on the advice, he told me that the advice is being processed.
' The Cabinet meeting was not held at 1-30 p.m. On 29-5-1993. I reached 90-Shahra-i-Quaid-e- Azam at 2-30 p.m. Where some of my other colleagues were already present. We had lunch and thereafter we had an informal meeting in which meeting there were some other persons also present.
39. The statement of Mr. Nasrullah Draeshik on this point may now be referred. He stated that Mr. Wattoo talked to him on telephone from Islamabad and told him about the advice he was sending for dissolution of Assembly. He stated that he agreed with him that this was the correct step for saving democratic body. He added that he did not suggest to the Chief Minister to send the advice directly to the Governor insted of sending it through him and that he handed over the sealed envelope received by him through son-in-law of the Chief Minister. He added that the envelope was opened in his presence by the Governor. There was no other officer present when the Governor opened the envelope in his presence. He left the Governor's office within 15/20 minutes of having handed over the envelope to him. He added that he stayed in the Governor's House with other officers about 30/45 minutes and then left. The letter of advice Exh. C/8 contains the endorsement made by the Governor as under:- "Received at 11-35 a.m. Put up order of dissolution as discussed for signatures."
' It is to be noted that this letter was marked by the Governor without mentioning any date under his signature to G.S. (Governor's Secretary). This very letter of advice bears the following order signed by the Governor with time 4-00 p.m. Noted under the signatures:-- "Order dissolving the Provincial Assembly forthwith signed."
' This letter Exh. C/8 also bears the endorsement (Exh. C.8/A), dated 30th May of the Governor's Secretary which reads as under:-- ' Gov. Has signed. Issued. RK keep.
' D.S(B). (Sd.)
30/5 ' In this respect statement made by Mr. Farooq Haroon, Secretary to the Governor is very important.
The relevant part of the said statement may be reproduced:-- "I was working as Secretary to the Governor Punjab on 29-5-1993. I did not receive any paper from the Governor containing advice of the Chief Minister for dissolution of the Assembly."
' It may be noted that this answer contradicts the endorsement appearing on letter of advice Exh.
C/8 wherein it stands recorded: "Put up order of dissolution as discussed for signature." The statement continues:-- "I received verbal order from the Governor to provide him a dissolution order. It was about 2-30 p.m. On 29-5-1993. I had the dissolution order prepared already. I do not know the time when the Governor signed the order of dissolution because he did not sign it in my presence. I received a copy of the dissolution order signed by the Governor with my covering letter between 8-30 p.m.
And 9-00 p.m. On 29-5-1993. When I delivered him the draft of the dissolution order at about 2-30 p.m. The Governor asked me that I can leave and rest and he will manage the matter himself. I left for my house and returned to Governor House at about 7-30 p.m. That evening and the first time that I came to know about dissolution order when I was delivered spare copies of the dissolution order after 8-30 p.m... ...
' The letter of advice of the Chief Minister was received by me for the first time on 30-5-1993 and so was noted by me on this letter exhibited as C-8/A. This is the only advice that reached me from the Governor on 30-5-1993."
' It will be noted that Mr. Nasrullah Draeshik claimed that he had delivered the envelope containing the advice to the Governor and that after remaining about 15/20 minutes with the Governor had remained with the officers in the Governor House for 30/45 minutes but Mr. Farooq Haroon Secretary to the Governor contradicted him by saying as under:- "I did not discuss the matter of advice with Sardar Nasrullah Draeshik on 29-5-1993. I did not at all meet him on 29-5-1993 during the morning time. I had met Sardar Nasrullah Draeshik later in the night in the Governor's House. I did not see Sardar Nasrullah Draeshik before my meeting with him late night on 29-5-1993 throughout the day."
' It is also worthnoticing that the endorsement by the Governor appearing on letter of advice Exh: C/8 also does not say that the letter was delivered by hand by Mr. Nasrullah Draeshik. The claim of Mr. Nasrullah Draeshik of having delivered the said letter of advice cannot be believed to say the least in view of the discrepant nature of his statement before the Court and for his having attempted to withhold information about certain matters e.g. He stated that there was only a proposal for summoning of Budget Session for 5-6-1993, and by "proposal" he meant the request of the Government sent to the Governor for Budget Session. He added that he had no talk with the Chief Minister regarding summoning of the Budget Session which position stands contradicted by the statement of the Speaker and Deputy Secretary of the Assembly. Even on the question of holding of Special Cabinet meeting he failed to make a straightforward statement. Again he was asked a direct question: "Is it to your knowledge that in the dissolution order the time given is 4-00 p.m.?" and the answer given was "I do not know that (on the question of the Court) the time of passing of dissolution order was given as 4-00 p.m. And so is the position regarding time of tendering of advice". Then in later part of the statement he deposed that it was to his knowledge that the Governor had dissolved the Assembly at 4-00 p.m. And that on his own he did not inquire about the order of dissolution on 29- 5-1993. As against this Mr. Farooq Haroon, Secretary to the Governor stated that the letter Exh. C/8 was the only advice that reached him from the Governor on 30-5-1993 and that original of Exh. C/1 was received by him from Private Secretary of Sardar Nasrullah Draeshik on 30-5-1993 when Governor told me that he had sent the original through him to the concerned. Can it be believed that the Private Secretary of Mr. Draeshik was acting without his knowledge. Had the advice been delivered to the Governor at 11-35 a.m. And the Governor had through Mr. Aslam, Private Secretary of Mr. Nasrullah Draeshik despatched the copies of the order of dissolution to the Chief Secretary, Law Secretary and Secretary to the Chief Minister between 5-00 p.m. And 6-00 p.m. Mr. Draeshik would have been the first person to have come to know about it.
40. Can it also be reasonably claimed that the Chief Minister would not be aware of the passing of the order of dissolution especially when as per his own statement he after landing at Lahore at 12- 30 p.m. Had talked to the Governor on phone beteen 1-30 p.m. And 2-00 p.m. And could the Governor by that time only tell the Chief Minister that he had received the advice and if the Chief Minister had decided on the evening of 28th May, 1993 to tender the advice for dissolution of the Assembly would he act in the manner established on record.
41. The important events culled out from record which negate the timing of tendering of advice and passing of the dissolution order as asserted by the respondents are:--
(1) In the night of 28th May, 1993, the Chief Minister directs the issuing of notice of a special Cabinet meeting to be held on 29-5-1993 at 1-30 p.m.,
(2) the Chief Minister holds a Cabinet meeting on 29-5-1993 though an effort was made to term it as an informal luncheon meeting;
(3) this Cabinet meeting according to Sardar Nasrullah Draeshik continued till 4-00 p.m. After arrival of the Chief Minister at 2-30 p.m. And after taking lunch;
(4) the decisions taken in the said Cabinet meeting were announced by Mr. Riaz Fatyana, Special Assistant for Information to Chief Minister in his press briefing held at 7-00 p.m. On 29-5-1993 and wherein he denied the consideration of dissolution of the Assembly;
(5) press release on record issued about the Cabinet meeting and its relay from the Television; ' Note.---The press briefing and press release aforementioned have not till date been contradicted;
(6) Col. (Retd.) Muhammad Yamin, a Minister in the Cabinet of Mr. Manzoor Ahmad Wattoo attends a function at 7-00 p.m. On 29-5-1993 at Islamia College Civil Lines, Lahore and represents the Chief Minister in the said function; he announces donation of Rs,20 lac on behalf of the Chief Minister and also gives assurance on behalf of Chief Minister for further extending of the financial assistance in future;
(7) Mr. Manzoor Ahmad Wattoo admitted that he authorised Col. (Retd.) Muhammad Yamin;
(8) complete silence till about 11-05 p.m. On 29-5-1993 without plausible explanation on the part of the Chief Minister and the Governor about this delay in announcement regarding the advice and particularly order of dissolution;
(9) receipt of resignation , of the two Ministers and one adviser on 29-5-1993 at 5-30 p.m. By the P.S. To the Governor in the Governor's House.
42. Mr. Manzoor Ahmad Wattoo in his written statement had not stated that he was not aware of the passing of the impugned order of dissolution. If he had tendered the advice or the order of dissolution had been passed at the time given out, therefor, he, his Ministers, Adviser and the officers would not have acted in the aforenoted manner. The plea of the learned counsel for the respondents that there was no legal bar in Mian Manzoor Ahmad continuing as Chief Minister and functioning as such till the order of dissolution had been passed may be available as a legal proposition but functioning of others than the Chief Minister could not have gone beyond the time of passing of dissolution order.
43. Adverting now to the plea raised about the carrying of the envelope containing the advice for dissolution of the Provincial Assembly by the son-in-law of Mr. Manzoor Ahmad Wattoo namely Mr. Mazhar, we are of the view that the same has been introduced to abridge the position of Mr. Manzoor Ahmad Wattoo being away to Islamabad at the time when the advice was statedly received by the Governor. The whole story of bringing the sealed envelope from Islamabad by Mr. Mazhar starting journey at 5-00 in the morning by car on the face of it appears to be compulsive introduction to support the timing of delivery of advice and consequent order of dissolution. It remains wholly unexplained as to why the sealed envelope could not be sent through special messenger by P.I.A. Flight, two of which were available in the morning of 29-5-1993 from Islamabad/Rawalpindi to Lahore or why it could not be sent through the Chief Minister's plane which was admittedly available at Islamabad at the disposal of the Chief Minister especially when the matter was of importance. If at all it had to be sent through Mr. Mazhar "the most trusted man" of the Chief Minister, he could avail of the flight of P.IA. If he was not entitled to travel by the Chief Minister's plane, moreso when there are seats reserved for the Government on every flight and the possibility of non-availability of a seat stood ruled out, particularly when the alleged carrying of the envelope by Mr. Mazhar was of a document which normally would not be allowed to be taken by car for fear of late arrival etc. It may be pointed out here that Mr. Mazhar apart from being a son- in-law of the Chief Minister was also an employee of the Punjab Government and could legitimately be directed by the Chief Minister to use his plane for such an important work or at least travel by P.IA.
' Neither the affidavit of this "all important person" was placed on record nor was he produced during the hearing. His non-production disconnects the link of transmission of advice.
44. There also appears no genuine necessity of introducing Mr. Nasrullah Dreshik's role in the' delivery of the document and perhaps it was only intended to create a further evidence to give credibility to the story but then the evidence sought to be created instead of furthering the case of the respondents appears to have demolished it.
45. Yet another aspect of the matter is that according to Mr. Manzoor Ahmad Wattoo, Mr. Mazhar his son-in-law did not accompany him from Lahore to Islamabad/Rawalpindi. It was in this circumstance necessary for him to have explained as to how his son-in-law Mr. Mazhar happened to be at Islamabad, which has not been done by him.
46. As already observed above, it has not been recorded by the Governor in his endorsement that Mr. Nasrullah Dreshik was the person, who had delivered the envelope to the Governor which in the circumstance that the Governor was statedly careful enough to have noted the time of receipt, should have also noted this important factor. Again according to the endorsement of the Governor, on receipt of the advice he discussed the matter with his Secretary, but this fact is not supported by the Secretary to Governor, who deposed that the letter of advice came in his hands for the first time on 3-5-1993 and that he did not even see it on 29-5-1993.
47. We may also at this juncture point out that the endorsement made by the Governor would not carry any privilege so as to attract the bar contained in Article 105(2) of the Constitution qua the tendering of advice by the Chief Minister inasmuch as the endorsement does not form part of the advice itself.
48. Needless to mention that no presumption of regularity can also be claimed in respect of the said endorsement in the attendant circumstances as the said document was not dealt with in the ordinary course of business of the Governor's Secretariat. It has come on record not only through the statement of Mr. Farooq Haroon, Secretary to Governor but also from the statements of other witnesses that the matter was not dealt with in the usual channel and in the ordinary course of business but by persons who had nothing to do with the Governor's Secretariat.
49. The respondents have relied upon the timing of the delivery of the order of dissolution to the Chief Secretary and the other officers of the Government for the purposes of establishing the timing of tendering of advice and the passing of dissolution order. The examination of the record on this aspect is, therefore, called for.
50. Mr. Javed Ahmad Qureshi, the Chief Secretary has stated that he received the copy of the order alongwith the forwarding letter of the Secretary to Governor at 5-00 p.m., the time he had noted underneath his signature on Exh. C/1 at Exh. C-1/A. From the following statement made by the Chief Secretary before the Court, it emerges clearly that if the statement of this witness is believed then the time given under the signatures of the Governor on the order was not there when the copy of the order was delivered to the Chief Secretary, but had been entered later:-- "In passing I did talk with the Secretary to the Governor regarding the dissolution. The Secretary to the Governor did not tell at what time the dissolution order was ordered. I learnt about the time of passing of the dissolution order when I reached the Governor House. I did not know about the timing of the dissolution order as 4-00 p.m. Before I reached the Governor House and I was so told by the Secretary to the Governor."
51. The Chief Secretary has further deposed that he reached his residence at about 4-00 p.m. From 90 Shahrah-e-Quaid-e-Azim on 29-5-1993; went for a walk at 6-30 p.m. And between the time of receipt of the letter and 6-00 p.m. He did not talk about this matter with any one and then he went to Gymkhana Club, Lahot e that night between 8-15 p.m. To 8-30 p.m. To attend the dinner in honour of the retired Law Secretary. He thereafter stated that he could be in the function in Alhamra at 6-00 p.m. To another question that after leaving Alhamra, he went back to 90 Shahrah- e-Quaid-e-Azam and was seen there, he avoided the answer by saying:-- "I do not recall all the incidents of that day."
' To yet another question that he had contradicted his earlier statement that from Alhamra he went back to his residence he again avoided clear answer by saying that:- "My answer is that I do not recall all the incidents of that day in chronological order."
52. To the Court question that you left 90 Shahrah-e-Quaid-e-Azam on 29-5-1993 at about 4-00 p.m., and were there ever on that day thereafter, the answer was:- "I may have gone there."
53. From the above statement of the Chief Secretary the legitimate inference is that he was in Alhamra at 6-00 p.m.; that he went from Alhamra to 90 Shahrah-e-Quaid-e-Azam and from there he left for Club for attending the dinner and thus was not at his residence during the period 6-00 p.m. Till about 9-00 p.m./9-30 p.m., when he returned from the Club.
54. Mian Ihsan-ul-Haq, another Government Officer (Secretary I&C) categorically stated that he was at his home during the period 3-30 p.m. To 6-00 p.m. On 29-5-1993 and received no call from any one during this period; that he left for some personal work at 6-00 p.m. And reached home after 8-00 p.m. When he was told by his family members about the call of the Chief Secretary and that he went to the residence of the Chief Secretary at 8-30 p.m. Which he further clarified by stating that it could be later than 8-30 p.m. But not before that when the order of dissolution with a direction to keep it in the office record was given to him. At that point of time, the Chief Secretary according to his own statement was attending dinner in Gymkhana Club.
55. It would thus be noticed that the statements of these two officers are highly discrepant and their reading as a whole leads 'to the only inference that they were making the statements which do not give correct picture and were laboured statements.
56. In the same context we now take up the statement of Mr. G.M. Sikandar, Secretary to the Chief Minister. This gentleman stated that he came to know of the dissolution of the'Provincial Assembly when he reached home at 8-45 p.m., where Mr. Aslam P.S. To Mr. Nasrullah Dreshik had statedly delivered to his servant some envelope containing a document, which was the dissolution order.
The significant part of the statement of this witness is that after making attempt to contact the Chief Minister, he went to the Governor's House, where he was contacted by Mr. Aslam and Mr. Nasrullah Draeshik. They inquired from him about the dissolution order which was stated to have been delivered at his residence at 5-30 p.m. And then he was told that this was a legal requirement to note down the time at which the delivery was made and as such on their asking he noted down the time under his signatures as 5-30 p.m. And that it was around 9-45 p.m., he noted down the time as 5-30 p.m. Under his signatures on Exh. C/1.
57. From the appraisal of the material on record, it therefore, emerges that the version that the order of dissolution was communicated to the Chief Secretary and other officers between 5-00 p.m. To 6-00 p.m. Has not stood the test of veracity.
58. This version also cannot be believed in view of the stand taken by the Chief Minister in his written statement that it was decided that the factum of advice and the consequent dissolution of the Assembly was purposely not disclosed at the time they were allegedly respectively tendered and passed and after that time as well i,e, up to the time of press briefing by Mr. Riaz Fatyana and press release of the Cabinet meeting as it was decided to disclose this to the M.PAs. And others directly in the press conference to be held.
59. There are many other discrepancies and contradictions in the statements of some of the abovementioned persons, which would tend to show that it was not safe to rely on their statements. Some of them may be recapitulated hereunder:- Q. Did you establish contact with the Governor on reaching Lahore from Islamabad on 29-5-1993?
A. I reached Lahore at about 12-30 p.m. On 29-5-1993 and on my arrival Mr. Nasrullah Draeshik told me that he wanted to talk to him in private something regarding the advice. We went to the house of Mr. Nasrullah Draeshik where he told me that the advice sent by me through Mazhar had reached him which he has delivered to the Governor. (Volunteered that after having had the above talk, I talked to the Governor on telephone from the house of Mr. Nasrullah Draeshik between 1-30 p.m. And 2-00 p.m. The Governor told me that the advice had reached him).
' On further questioning Mr. Wattoo stated that he reached 90-Shahrah-eQuaid-e-Azam at 2-30 p.m. Where some of his other colleagues were already present and he had a lunch and then an informal meeting of the Cabinet was held.
60. Mr. G. M. Sikandar, C.W.3 Secretary to the Chief Minister however stated that he received the Chief Minister at the Lahore Airport when he arrived from Rawalpindi. He alongwith the Chief Minister went to 7-Club Road and from 7-Club Road, he followed the Chief Minister to 90 Shahrah- eQuaid-e-Azam and on arrival there at about 2-30 p.m. They had first lunch and then the meeting started at 3-25/3-30 p.m. The meeting continued up to about 3-45 p.m. Whereafter the officers came down and the Ministers etc. Remained in the meeting room. He added that the Chief Minister was busy in the meeting up to 6-15 p.m. And he was in the adjoining room and was not aware what was happening. On Court question he stated that he remained at 90 Shahrah-e-Quaid-e-Azam up to 8-25 p.m. And the Chief Minister had before that left for Governor's House at about 8-00 O'clock, and that up to 8-25 p.m. He remained at 90 Shahrah-e-Quaid-e-Azam but he had no knowledge of dissolution of Assembly. It will be noted that he was not cross-examined by Mr. Shahzad Jahangir, learned counsel for respondent No, 1 and Raja Muhammad Anwar, Advocate for respondent No,2 asked him in cross-examination only whether any Agenda was issued for the Cabinet meeting or not to which he replied that no Agenda was issued for the meeting and that he was not in the meeting. It will thus be noted that his statement as to the programme of Chief Minister since arrival till 8-00 p.m. In the night was not at all challenged. It is also pertinent to note that Mr. Nasrullah Draeshik in his statement also did not even remotely mention about his meeting with the Chief Minister either at the Airport or the Chief Minister having come to his house on his request for imparting information as to the delivery of advice by him to the Governor.
61. Another important question which strikes the mind and which has not been explained in any manner after reading the statement of Mr. Farooq Haroon, Secretary to the Governor is as to why the Governor in spite of endorsement on the letter of advice Exh. C/8 after the matter had been discussed, did not hand over the letter of advice to his Secretary and as to why the Governor asked him verbally to provide him the dissolution order and under what circumstances and when the Governor had earlier asked his Secretary to keep ready the dissolution order. Mr. Farooq Haroon, Secretary to the Governor's answer relevant in this respect reads as under:-- "I received verbal order from the Governor to provide him a dissolution order. It was about 2-30 p.m. On 29-5-1993. I had the dissolution order prepared already. I do not know the time when the Governor signed the order of dissolution because he did not sign it in my presence. I received a copy of the dissolution order signed by the Governor with my covering letter between 8-30 and 9- 00 p.m. On 29-5-1993. When I delivered him the draft of the dissolution order at about 2-30 p.m.
The Governor asked me that I can leave and rest and he will manage the matter himself. I left for my house and returned to Governor House at about 7-30 p.m. That evening and the first time that I came to know about the dissolution order when I was delivered spare copies of the dissolution order after 8-30 p.m. I prepared two drafts for the dissolution order one with a blank date but with May, 1993 as the month and year of the order, while the other with blank date with June, 1993 as the month and year. The two drafts were prepared as I was not sure when the order may be passed."
Q. The covering letter bearing No, GS(B)/93-148, dated May 29, 1993 bears your signatures. If this letter was prepared two days ago, that is to say on 27th, why did you not give that date on the covering letter?
A. The date entered as 29-5-1993 at two places as well as the number of the letter was typed on 29-5-1993. This covering letter Exh. C/7 was prepared two days before the date mentioned therein.
When I signed the letter; the date had already been typed out alongwith the letter number which, it may be noticed, have a different print than the text of the letter."
62. From the above state of the record it is apparent that the Governor had on or before 27-5-1993 started preparation for passing the order of dissolution of the Provincial Assembly. Admittedly on that date, no advice of the Chief Minister to dissolve the Assembly existed. Why thus the Governor who is expected by law and the Constitution to be an independent functionary had the dissolution order prepared; one with blank date space and with "May 1993" as the month and year whilst the other with blank space for date and "June" as the month and "1993" as the year. Had the Governor discussed this matter with the Secretary after receipt of the advice from the Chief Minister at the time of making endorsement, he would not have got prepared two drafts of order of dissolution of Assembly much in advance of the date of receipt of the advice.
' Although in view of the finding that the giving of notice by the petitioner at 12-00 noon is not proved it is not necessary to discuss the affidavit and statement of the Deputy Secretary, Saeed Ahmed but we cannot refrain from observing that his statement was far from being correct and was full of contradictions in almost all respects.
63. We have in the foregoing paragraphs pointed out the discrepancies and contradictions found in the statements of Mr. Ghulam Haider Wyne, Ch. Pervaiz Elahi, Mr. Nasrullah Draeshik, Mian Manzoor Ahmad Wattoo, Mr. Javcd Ahmad Qureshi, Chief Secretary, Punjab, Mian Ihsan-ul-Haq, Secretary to Government of Punjab and Mr. Saeed Ahmad, Deputy Secretary, Provincial Assembly, Punjab, which have led us to hold that neither the notice of resolution for vote of no-confidence was delivered at 12-00 noon, nor the advice was tendered at 11-35 a.m. Or the order of dissolution was made at 4-00 p.m. On 29-5-1993.
64. For the same reasons we in our short order dated 28-6-1993 expressed our anguish over the serious contradictions and inherent improbabilities in the affidavits filed by the parties and the statements of the deponents etc. Before the Court that we found ourselves unable to place any reliance upon them and are clearly of the view that both the parties have not come out with the whole truth and unfortunately both of them acted as adversaries in the ordinary litigation.
65. These findings, however, do not conclude the controversy. It has already been found that the notice of a resolution for vote of no-confidence was served upon the Secretary on 29-5-1993. The question, which therefore, now arises is whether the service of notice had preceded the tendering of advice for dissolution of Assembly by the Chief Minister.
66. The most important circumstance which deserves notice is the time at which public disclosure was made about giving of notice and tendering of advice.
67. As regards service of notice of resolution for vote of no-confidence, Mr. Rafiq Goraya, Senior News Editor, Pakistan Television, Lahore Centre stated before us that the petitioner had conveyed this information to him between 8-15 and 8-30 p.m. This statement finds corroboration from the fact that a news to that effect was telecast in the Khabarnama at about 9-12 p.m.
68. So far as the tendering of advice and consequent order of dissolution are concerned, these facts were for the first time publicly disclosed in a Press Conference held by the Governor and the Chief Minister in the Governor's House at 11-05 p.m. We have already observed that reasons for non-disclosure thereof earlier are far from convincing.
69. The following circumstances of overwhelming nature also tend to show that resolution for vote of no-confidence was given prior to the alleged tendering of advice and order of dissolution passed by the Governor:--
(1) that according to Mr. Farooq Haroon, Secretary to Governor, Punjab it was on 30-5-1993 that he had for the first time received the document of advice from the Governor;
(2) that the Cabinet meeting was held on 29-5-1993 in which various decisions were taken, which were announced by Mr. Riaz Fatyana, Special Assistant for Information to the Chief Minister, at about 7-00 p.m.;
(3) Mr. G.M. Sikandar, Secretary to the Chief Minister who remained present with the Chief Minister on the fateful day at 7 Club Road and then at 90 Shahrah-e-Quaid-e-Azam stated that he did not learn of the dissolution till about 8-45 p.m.;
(4) there have been public statements by the Chief Minister and his Cabinet Colleagues/Adviser through press and otherwise that there will be no dissolution of the Assembly and these statements and assurances continued to be extended till the last minute;
(5) the non-production of the documents by the respondents for a long time despite repeated directions supports the petitioner's version;
(6) the receipt of resignation by two Cabinet Ministers and an Adviser by the P.S. To the Governor at 17-35 p.m. On 29-5-1993.
70. There is yet another predominant factor, which has led us to conclude that the notice of resolution for vote of no-confidence was lodged earlier than the tendering of advice. Both Mian Manzoor Ahmad Wattoo and Mr. Nasrullah Draeshik have stated before us that they had started thinking about the desirability of dissolving the Provincial Assembly immediately after restoration of the National Assembly by the Hon'ble Supreme Court on 26-5-1993. Mr. Farooq Haroon, Secretary to the Governor, Punjab while appearing before us had stated that he had prepared two drafts of order of dissolution of the Assembly on 27-5-1993 which shows that the Governor was also being consulted in this regard.
71. Neither in the written statements nor while appearing before this Court Mr. Manzoor Ahmad Wattoo or anyone else has explained the happening of any event of such a nature which led the Chief Minister to take final step of dissolving the Assembly on 29-5-1993 as alleged. The only noteworthy fact which took place was the service of notice of resolution for vote of no-confidence upon the Secretary of the Provincial Assembly the news about which were televized by the Television during Khabarnama. The legitimate inference which flows from the above fact is that attaining of knowledge about the lodging of notice of resolution for vote of no-confidence triggered the concerned to make a move to frustrate the notice.
72. It may also be mentioned that news about the notice having been delivered to the Secretary had reached the Television Station, Lahore Centre between 8-15 p.m. And 8-30 p.m. And were actually telecast at 9-12 p.m. This is so borne out from the statement of Mr. Rafiq Goraya, the Senior News Editor of the Television, Lahore Centre. It was thereafter that the respondents made an attempt to create some evidence to show that the advice had been tendered and the order of dissolution passed earlier to the service of notice.
73. It may also be observed that though in the written statement filed by respondent No,1 it has been averred that the Governor had at 8-00 p.m. Asked for holding of press conference but neither any document to support the assertion has been placed on record to show that the press conference was called by the Governor at 8-00 p.m. Nor is there any affidavit of any person who was entrusted with this task. It also deserves to be noticed that in the written statement filed by the respondent No,1 it has been pleaded that the news about the tendering of advice and dissolution order were not telecast on television or broadcast on Radio as it was controlled by the Federal Government. However, respondents have not produced any proof whatsoever to show that any intimation of this fact verbally or in writing had been sent to both the abovementioned media.
Significantly when Mr. Rafiq Goraya, Senior "News Editor, Pakistan Television appeared before this Court, he was not asked anything about this assertion.
74. We have in the short order also recorded the conclusion that the advice tendered by the Chief Minister suffers from mala fides for the following reasons:--
(1) It was tendered solely to keep himself in power and to forestall any attempt to dislodge him;
(2) the repeated assurances by the Chief Minister even till 28-5-1993 that the Provincial Assembly will not be dissolved;
(3) there was no issue on which appeal to electorate was necessary so as to curtail the normal constitutional life of the Assembly;
(4) it did not lie with respondent No,2 to advise dissolution as a measure of punishment to those who elected him especially when it was with the help of those members that he toppled the leader of the House and became Chief Minister;
(5) the advice appears to have been made with a view to disturb the functioning of a constitutional organ and the Government machinery as an aftermath of the judgment delivered by the Supreme Court of Pakistan in the case of Mian Muhammad Nawaz Sharif v. The Federation of Pakistan etc. PLD 1993 SC 473 whereby the National Assembly and the Federal Government were restored on 26-5-1993.
75. The material available to arrive at the aforesaid conclusion and reasons may now be referred to. Mr. Ghulam Haider Wyne in his statement deposed that the members who voted against him were deceived by Mian Manzoor Ahmad Wattoo by saying that if vote of no-confidence was not passed against Mr. Wyne, the President will order dissolution. Mr. Wyne referred to the press conference of Mr. Manzoor Mohal, Minister in Mr. Wattoo's Cabinet, wherein he had stated that if vote of no-confidence is not passed against Mr. Wyne, Provincial Assembly will be dissolved. He also referred to the statement of Mr. Taj Khanzada made in the meeting presided over by the Speaker National Assembly wherein he stated that the President had himself told him and other members that in case they do not pass vote of no-confidence against Mr. Wyne, the Punjab Assembly will be dissolved and further that if he is removed from the office of the Chief Minister, Punjab, the Provincial Assembly of Punjab will not be dissolved.
76. Ch. Pervaiz Elahi in his statement deposed that Members of the Provincial Assembly had gone to the side of Mr. Wattoo on assurance that Assembly will be saved but they felt deceived when Mr. Wattoo after entering into secret deals with others made decisions against the interest of members. This feeling of the members was further strengthened when the members came to know from the newspapers reports that Mr. Wattoo is having negotiations and talks with members of P.P.P. And thus they felt that Mr. Wattoo was completely in the lap of Pakistan Peoples Party. In cross-examination the question asked and the answer given may be quoted:
(0) What was the betrayal of Mian Manzoor Ahmad Wattoo qua the interest of the members of the Assembly?
(A) Mian Manzoor Ahmad Wattoo had betrayed the members of my party i,e, Muslim League by going into the lap of the Pakistan People's Party and had tried to place the members who had all along 8 years been working under the leadership of Mian Nawaz Sharif and had been contesting election throughout from my platform but now were being subordinated to the Pakistan People's Party which has totally contrary ideology.
' He further deposed that the decision that Mr. Wattoo had to be removed from the office of the Chief Ministership had been made by him the very first day when he was elected leader of opposition and when the feeling had come into the minds of the members that he (Mr. Wattoo) had deceived the parliamentary party of the Muslim League in the Provincial Assembly. The decision to give notice of resolution of no-confidence against Mr. Wattoo was finalised on 28-5- 1993.
77. Learned counsel for the petitioner referred to the public statements of Mr. Wattoo and his Cabinet colleagues in the newspapers, dated 12th May, 16th May, 1993, Annexures 'D-14' to 'D-16', that there will be no dissolution of the Provincial Assembly and that they are the saviours of the democracy. It was their case that the change of mind occurred after the judgment of the Supreme Court dated 26-5-1993 restoring the National Assembly as well as the Federal Cabinet was passed and the measures to destabilise the Federal Government and to frustrate the judgment of the Supreme Court were taken in hand. It was also urged on behalf of the respondents that the advice from the Chief Minister to dissolve the assembly by the Governor was malafidely procured and made to effectuate the secret deal entered into with the rival political parties.
78. Now the question as to when the Chief Minister made up his mind to dissolve the Provincial Assembly may be examined with reference to the statements made by Mr. Wattoo and Mr. Draeshik. Mr. Wattoo stated in the opening part of his statement that he had told the Law Minister his thinking about advice regarding dissolution. (Mr. Wattoo made statement with reference to the letter of advice purportedly dated 29-5-1993 sent from Islamabad). He added that he asked him to prepare draft advice. He added that he drafted it and the draft was put up before him which he approved, then it was fair typed and he signed it. He in the same breath added that the draft advice was prepared at Lahore and he took it alongwith him to Islamabad. He finalised it here. The finalised draft was taken by him to Islamabad, because he wanted to discuss this matter with some of his friends and his party associates and with the President of his party. He signed it and placed the date also on it there. He in the next breath deposed that it is incorrect to suggest that the advice tendered by him was prepared in Lahore by his political associates at Lahore after attaining the knowledge through T.V. News that the notice of resolution of vote of no-confidence against him had already been lodged. Mr. Wattoo stated that meeting of his parliamentary party was held on 26-5-1993 but on a question he deposed that he did not remember having told any Press Reporter after the Cabinet meeting or after the parliamentary party meeting that he was thinking of dissolving the Provincial Assembly. Admitted the suggestion as correct that they were not those who dissolve Assemblies but are of the view that the same be saved. He again accepted suggestion as correct that by then he had no intention of dissolving the Assembly. Those who state that he had the intention of dissolving the Assembly and had decided to dissolve the same on 26- 5-1993 are not stating the truth. He was confronted with the news item of daily Nawa-e-Waqt dated 28-5-1993 from which it emerges that even on 27-5-1993, he had no intention of dissolving the Provincial Assembly. He also read the newspaper and answered in the affirmative and also volunteered that he always had the intention of saving the Assembly but on restoration of the National Assembly and the Federal Cabinet he had started having signals from Islamabad that the intention of the Federal Cabinet was to destabilise the politically installed Government in the Province of Punjab and on the very night of 26-5-1993, they had started sending their representatives to destabilise his Government in Punjab. He volunteered that his Government is the Government of the Punjab Muslim League and his Government did not start any confrontation with the Government of Mian Muhammad Nawaz Sharif. However, in the earlier part of the statement, he stated that in the Supreme Court during the hearing of the case of Mian Muhammad Nawaz Sharif, Government of Punjab took the stance before the Supreme Court that if the Government at Federal level is restored, the Punjab Government will not be in a position to cooperate with the said Government. He volunteered that this was on the basis of the view that the Provincial Affairs were being run in a manner different from the Federal Government and the two will not find reconciliation. Mr. Wattoo was then confronted with the news appearing in daily Nawa-e-Waqt dated 29-5-1993 and was asked that on 28-5-1993 he had no intention of dissolving the Assembly.
The answer was that this statement does not indicate anything about my advising the dissolution of Assembly. He, however, refuted the suggestion as incorrect that by the time he left for Islamabad on 28-5-1993, he had no intention of advising the dissolution of Provincial Assembly.
79. Let us now examine the version of Mr. Draeshik as to the time the intention or decision to dissolve the Provincial Assembly was entertained/taken by Mr. Wattoo. The question asked of him in this respect and the answer given may be reproduced:--
(0) Did you have a talk with Mr. Wattoo regarding dissolution of Punjab Assembly on 28-5-1993 before he left for Islamabad?
(A) The talk between us about dissolution of Assembly had commenced on 26-5-1993. Volunteered that after restoration of National Assembly by the Supreme Court of Pakistan Usman Abbasi, Deputy Speaker of the Punjab Assembly and Sardarzada Tahir Shah, Food Minister Punjab travelled with Ch. Pervaiz Elahi, Ghulam Haider Wyne, Badshah Mir Afridi, Raja Ashfaq Sarwar and few others from Islamabad to Lahore and they had a conversation and talk during the travel as also in the V.I.P. Lounge where the latter persons disclosed to the former two, that the Prime Minister has directed them to destabilise the Ministry of Mr. Wattoo in the Punjab Province and also invited them to join them in this connection.
' It may be pointed out that the version that the aforenoted persons were sent to destabilise the Government of Mr. Wattoo was neither put to Mr. Ghulam Haider Wyne nor to Ch. Pervaiz Elahi during their cross-examination. Mr. Draeshik also stated that on 28-5-1993 Mr. Wattoo had told him that in principle he had decided to dissolve the Assembly and also told that he had made a decision to save the democracy. It is also pertinent to note that Mr. Draeshik was made the Minister on 27th May, 1993. This was the date before which according to his own admission they were discussing that the Provincial Assembly be dissolved. It is very strange that the dissolution discussion had commenced on 26-5-1993 not only with the Chief Minister but on the same lines the Governor was also making preparation to dissolve the Assembly, yet the Minister was inducted into cabinet on 27-5-1993 and then on 28-5-1993 advice was prepared and drafted by the Law Minister Mr. Draeshik. The conduct of none of them i,e, the Chief Minister, the Governor or Mr. Draeshik fits in the scheme of events which they want the Court to believe to have happened and occurred.
80. The above detailed reasons lead us to the conclusion that neither the receipt of notice at 12-00 noon nor the tendering/receipt of advice at 11-35 a.m. And the passing of the order of dissolution at 4-00 p.m. On 29-5-1993 have been established to have been at the timings given out. However, the strong circumstantial evidence, publicly known factors and statements of the public functionaries do tend to show that the notice of resolution of no-confidence was delivered to the Secretary at a time prior to the rendering/receipt of the advice.
81. At this juncture it appears appropriate to observe that it cannot be successfully urged and claimed in the afore-mentioned attendant circumstances that the tendering of advice and consequent order of the dissolution made thereon arc sacrosanct and cannot be questioned even under exceptional circumstances, which have been found existing in the case in hand. The presumption of regularity (not correctness) which attaches to these documents stand successfully rebutted. Reliance in this regard may usefully be placed on the Islamic Republic of Pakistan v.
Abdul Wali Khan reported as PLD 1976 SC 57.
82. Now the argument of the learned counsel for the respondents that the notice of resolution of no-confidence even if proved to have been delivered to the Secretary at his residence, was not valid in terms of Explanation to Article 112 of the Constitution may be adverted to.
83. On this aspect there was a divergence of opinion between learned counsel for the respondents themselves. Some of them contended that as the Explanation provided for giving of notice "in the Assembly", it necessarily implies that the notice contemplated is a verbal notice given on the floor of the Assembly when it is in session and all other forms of notices stood/are excluded. The other learned counsel for the respondents were, however, of the view that a written notice if given within the precincts of the Assembly, would meet the requirement of the Explanation. They explained that as in the present case the notice was statedly given to the Secretary at his residence, it was neither legal nor valid. Reference was made to Rule 162 of the Rules of Procedure of Punjab Provincial Assembly, 1973 to support this contention.
84. In reply, Mr. Khalid Anwar, Advocate learned counsel for the petitioner refuted the arguments raised by learned counsel for the respondents by maintaining that the service of written notice in accordance with the Rules of Procedure of the Punjab Provincial Assembly would be sufficient. He, in that context, submitted that the rule, which specifically governs the service of notice of resolution for vote of no-confidence was rule 18 of the Rules which only requires that the notice should be given to the Secretary but not necessarily in his office during working hours.
85. Sub-Article (1) of Article 112 of the Constitution of Islamic Republic of Pakistan 1973, which is relevant to the issue under consideration reads as under:-- "Dissolution of Provincial Assembly.--- (1) The Governor shall dissolve the Provincial Assembly if so advised by the Chief Minister; and the Provincial Assembly shall, unless sooner dissolved stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised.
' Explanation.---Reference in this Article to Chief Minister shall not be construed to include reference to a Chief Minister against whom notice of a resolution for a vote of no-confidence has been given in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no-confidence has been passed or who is continuing in office by virtue of clause -(2) of Article 134 or a Provincial Minister performing the functions of Chief Minister under clause (1) or clause (3) of Article 135."
86. It may be stated that the Explanation in the form which it exists today, is the result of an amendment made by the Constitution (8th Amendment) Act, 1985. Prior thereto, the Explanation read thus:- ' Explanation.- Reference in this Article to Chief Minister shall not be construed to include reference to a Chief Minister against whom resolution for a vote of no-confidence has been moved in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no- confidence has been passed or who is continuing in office by virtue of clause (2) of Article 134 or a Provincial Minister performing the functions of Chief Minister under clause (1) of clause (3) of Article 135."
87. A comparison of the two provisions would show that while under the Explanation as it originally stood, in order to deprive the Chief Minister of his right to tender the advice for dissolution, it was necessary that a resolution for vote of no-confidence should have been moved against him but after the amendment, the Chief Minister stands debarred from tendering advice for dissolution if only a notice or resolution for vote of no-confidence had been given though the resolution itself may not have been moved.
88. At the very outset it may be stated that if the argument of learned counsel for the respondents that the notice in terms of the Explanation means only a verbal notice given at the floor of the Assembly is accepted, it would render the amendment made in the Explanation as redundant.
Redundancy, it is well-settled, cannot be attributed to any legislation, muchless to the constitutional provisions.
89. The amendment made was not without any purpose. It will be appreciated that under Article 112 of the Constitution, there is no requirement that the Chief Minister should tender the advice only during the office hours or at a particular place. But under the Explanation in its unamended form, the Chief Minister was placed under disability only if a resolution for vote of no-confidence had been moved, which, of course, can be done only when the assembly was in session. It was, therefore, possible for the Chief Minister on having learnt that a resolution for vote of no- confidence was to be moved against him in the session of the Assembly to forestall it by advising dissolution and thereby render futile the impending move for no-confidence against him. The amendment was clearly made with a view to obviate the possibility of any such attempt on the part of a Chief Minister.
90. It is, therefore, not possible to agree with the learned counsel for the respondents that notwithstanding the amendment in the Explanation, the notice contemplated has to be construed a notice verbally given on the floor of the Assembly when it is in session. Such an interpretation as canvassed by the learned counsel for the respondents would defeat the very intention for which the amendment was brought about.
91. It may also be stated that the restricted interpretation being placed by learned counsel for the respondents upon the words "in the Assembly" as meaning the Assembly in session is not borne out from a reading of the Constitution. If the intention indeed was that the notice must be given only while the Assembly is in session, the Constitution-makers could have said so expressly as it did in Article 128 of the Constitution.
92. Equally without basis is the argument of the learned counsel for the respondents that the words "in the Assembly" mean in the building of the Provincial Assembly. Such an interpretation is not countenanced by the language of the Explanation itself.
93. It will be appreciated that although the Constitution does not define the words "Provincial Assembly" but these words appear in a number of other Articles also and have as such to be assigned the meaning which the context in these words have been used admits. Article 106 of the Constitution provides that there shall be a Provincial Assembly for each Province comprising of specified number of voters, does this Article only mean that there should be a building for the Assembly. Similarly, according to the Article 107 of the Constitution, the duration of Provincial Assembly is 5 years. Can it with any seriousness be contended that the Provincial Assembly in this Article means the building of the Assembly. Article 117 provides that a Bill pending in the Provincial Assembly shall not lapse by reason of the prorogation of the Assembly and a Bill pending in a Provincial Assembly shall lapse on the dissolution of the Assembly. Would it mean, a Bill pending in the building of the Provincial Assembly? In case a copy of the Bill has been lost or stolen from the building of the Provincial Assembly would it mean that the said Bill, as it is not physically existing and available in the building of the Assembly is not pending in the Assembly. It is, therefore, obvious that it is not the bricks and mortar of which the building of the Provincial Assembly is made which should be construed as meaning or connoting the Provincial Assembly but it is the institution of the Provincial Assembly in its totality which has to be kept in view while giving the meaning and content to the Explanation to Article 112 of the Constitution. The words in the Provincial Assembly' would not only include the precincts, the Secretariat but also the various functionaries of the Assembly.
94. There is no specific provision in the Constitution itself providing for the mode of service of notice. It cannot, however, be disputed that the service of notice is a matter of procedure. Under Article 67 read with Article 127 of the Constitution, a Provincial Assembly is empowered to frame rules to regulate its own procedure. In the exercise of the powers conferred upon it by the Constitution, the Punjab Provincial Assembly has framed rules known as Rules of Procedure of Provincial Assembly of the Punjab, 1973. Rule 18 of these rules on which reliance has been placed by learned counsel for the petitioner reads as under:-- "18.---(1) Not less than twenty per centum of the total membership of the Assembly may give notice to the Secretary in writing for moving a resolution of a no-confidence against the Chief Minister under Article 136 of the Constitution and the Secretary shall, as soon as may be, circulate the notice to the members.
(2) The resolution of which notice has been given under sub-rule (1) shall be entered in the name of the members concerned by the Secretary in the List of Business after the expiry of seven days from the date of receipt of the notice.
' After the resolution has been moved, the Speaker shall subject to Article 136 of the Constitution fix a day on which the resolution shall be voted upon and the Assembly shall not be adjourned on the day so fixed until the resuolution has been voted upon.
' The Secretary shall, as soon as may be, inform the Governor of the decision made by the Assembly in respect of the resolution."
' Learned counsel for the respondents have, on the other hand, relied upon rule 162. This rule reads thus:-- "162. Save as otherwise provided in these rules every notice required by the rules shall be given in writing duly signed by the members concerned, shall be addressed to the Secretary and shall be delivered at the Notice Office of the Assembly Secretariat. If it is delivered during the office hours, it shall be treated as delivered on that day. If it is delivered at any later time or any holiday, it shall be treated as delivered on the day on which the Secretariat next opens."
95. A bare reading of rules 162 and 18 shows that while rule 162 is a rule of general application rule 18 is a special rule applying to a particular situation i,e, for the service of notice of resolution for vote of no-confidence specifically. It is .An established principle of interpretation that if there be a general and special rule, it would be the latter which would apply. The words "save as otherwise provided" contained in rule 162 are pointer of the fact that the rules do contain contrary rules applicable to special situations.
96. There is, therefore, no reason to hold that the service of a notice of resolution for vote of no- confidence would be governed by rule 162 and not rule 18 of the Rules of Procedure of the Punjab Provincial Assembly, 1973. In view of the importance of the notice of resolution for vote of no- confidence it is not difficult to understand as to why a separate rule for the said purpose should have been framed and further that why the rule should insist that the notice be given to the Secretary. There is nothing in rule 18 to warrant the assumption that the notice must be delivered to the Secretary in the Assembly Secretariat during working hours. This provision is in contrast with rule 162 which contemplates the service of a notice in the Secretariat itself and further provides that in the event of notice being served after office hours, it would be deemed to have been served on the next working day. By amending the Explanation to Article 112, the Legislature made its intention clear that as soon as the notice of resolution for vote of no-confidence had been given, the Chief Minister is debarred from tendering advice for dissolution. To hold that the notice must be served upon the Secretary in his office in the Assembly would be contrary to the Legislative intent. It may also be seen that if this interpretation is accepted, the service of notice may well be delayed or defeated by the Secretary by absenting himself from his office. Rule 18 in its plain wording requires the service of a notice on the Secretary and it is thereafter his duty and responsibility to place the same on the record of the Assembly and to take further action contemplated by the rule.
It may also be significantly observed that when the explanation to Article 112 of the Constitution was amended, rule 18 which deals with the question of service of notice of resolution for vote of no- confidence was also amended vide Notification No,4-30/84, dated 10th March, 1985, which also shows that the service of notice contemplated by the explanation is governed by rule 18.
' For these reasons the objection of the respondents as to the validity and effectiveness of the notice cannot prevail and is rejected.
' Learned counsel for respondents relying upon Article 105(2) of the Constitution contended that the jurisdiction of this Court to inquire into the advice or the contents thereof which, according to them, included the inquiry as to the timing at which the same had been tendered, was totally barred.
Reliance was also placed upon Article 69 of the Constitution to urge that as the matter related to internal working of the Provincial Assembly, this petition was not maintainable.
' Mr. Khalid Anwar, Advocate learned counsel for the petitioner, on the other hand, submitted that the timing of the advice was not a part of it, especially when the Chief Minister had not mentioned the time at which the advice was being tendered. It was also contended by the learned counsel that no protection, howsoeverhigh an office may be, can be afforded to an act which is mala fide and had been taken in bad faith and for ulterior motive. Learned counsel for the petitioner submitted that Article 69 of the Constitution, on the face of it, has no applicability.
' It is evident from a perusal of the copy of the advice produced by the respondents that there is no mention by the Chief Minister as to at what time the same was being tendered. Consequently, it is idle on the part of the respondents to contend that the inquiry as to at what time the advice was tendered was barred by Article 105(2) of the Constitution.
Be that as it may, whatever be the scope of Article 105(2) of the Constitution, we are clearly of the view that it does not prohibit this Court from finding out as to whether an advice suffers from mala fides as a mala fide act by its very nature is an act without jurisdiction and a nullity in the eyes of law. Neither under the Constitution nor under any civilized system of administration of justice muchless in an Islamic State and polity, like Pakistan, immunity in respect to mala fide acts can be claimed or granted. It is by now well-settled, and has repeatedly been held by the Supreme Court that even in cases, where the Constitutional protection is available to the action of different functionaries the same can be struck down if shown to be mala fide. Reference may be made to Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 39 and Aman Ullah Khan and others v.
The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092.
' It would be advantageous to refer to the case of Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 in which the provisions of Article 270-A of the Constitution fell for consideration. This Article not only ousted the jurisdiction of all Courts but also by virtue of clause (5) thereof provided by deeming fiction that all acts taken during the period in question shall be deemed to have been done in good faith. Notwithstanding the above position, the Supreme Court was pleased to hold that the acts, which are mala fide, do not qualify for protection or immunity under the Constitution. While referring to Saeed Ahmad Khan's case supra, Saad Saood Jan, J., who spoke for the Court, observed at page 53 of the report that:-- "In Saeed Ahmad Khan's case ibid, also the Federation had sought a wider interpretation of the validation and deeming clauses of Article 281 of the Interim Constitution and Article 269 of the Constitution with the plea that if the said Articles were not construed widely there was the possibility of chaos and the Government was likely to face great difficulty. This contention was once again rejected by Hamoodur-Rahman, C.J. With the observation:- ' These are more imaginary than real. We do not envisage any such calamity. If a law is made for the implementation of a policy of reforms and that law, though of doubtful validity has been subsequently validated, then all acts legitimately and honestly taken in the exercise of powers given by those laws will also be valid; but if an authority concerned has taken action in fraud of that law, that is to say, maia fide, we see no legitimate reason why the Government should be anxious to protect such a dishonest officer or authority. The cause of the reforms will not be advanced by such dishonest exercise of power by individuals out of personal malice or for personal gain. Indeed, if an officer has so acted we would expect the Government to see that the officer concerned is appropriately punished and the injustice done to the unfortunate victim righted. We do not appreciate the anxiety of the appellant-Government to protect such mala fide action.
' Now that there is a commitment on our part to seek inspiration in all our affairs from Islamic values the presumption to which Hamoodur Rahman, C.J., referred in Ziaur Rahman's case becomes even stronger and unavoidable."
' Mr. Abdul Hafeez Pirzada, Advocate, learned counsel for the respondents, however, advanced another reason in support of the proposition as to why the Court cannot interfere in the advice tendered for dissolution of the Provincial Assembly. He argued that a Prime Minister or the Chief Minister has an absolute and unbridled right to dissolve the Assembly as dissolution of an Assembly in parliamentary democracy is a norm and not an aberration. He added that right of the Prime Minister or a Chief Minister to bring to an end the Assembly has neither been denied nor refused in British history and the power given to the three o axis of the State, the Executive, the Legislature and the Judiciary, having been prescribed by the Constitution, the said powers do not contemplate denial by the judiciary of the right of a Prime Minister to dissolve an Assembly which right includes the right to go to the people for seeking their fresh mandate through a popular vote.
Learned counsel, however, did not cite any authority, precedent, treatise or opinion of any commentator on constitutional law.
' This contention of the learned counsel is not correct even with respect to an English Parliament. In
0. Hood Philip's Constitutional and Administrative Law 7th Edition, after noticing the various developments which took place in this context from time to time it is stated that in English Law still a limited prerogative is available to the sovereign to refuse dissolution in exceptional circumstances. There is useful discussion on the subject at pages 139 to 155 of the book. It is however of advantage to refer to the following passage appearing at page 155:-- "The former opinion, which allows a limited personal prerogative to the Sovereign, appears to be the better one. It is more in consonance with the traditions of British Parliamentary Government, and it has tended to be adopted in other Commonwealth countries. It was supported by Viscount Simon (a former Lord Chancellor) in April 1950 when the Labour Government had been returned with a majority of only six in the Commons. Attlee, who was Prime Minister in 1950 later expressed the opinion that if the Government had been defeated in the House at that time, George VI would have been within his rights in sending for the Leader of the Opposition if he thought a working majority in the House could have been obtained by him.
' The reason for the general convention that the Sovereign is bound by the advice of her Ministers is not applicable if they do not represent the wishes of the electorate (or the commons) amongs the factors that would have to be taken into account before the Sovereign could properly refuse a dissolution would be the time that had elapsed since the last dissolution, whether the last dissolution took place at the instance of the present opposition, whether the question in issue is of great political importance, the supply position, whether Parliament is nearing the end of its maximum term, whether the Prima Minister is in a minority in the cabinet, whether there is a minority Government and perhaps, whether there is a war on."
' Wade and Phillip in Constitution and Administrative Law, 9th Edition under the heading "dissolution" have commented at page 162 that save in exceptional circumstances, the Sovereign is obliged to give effect to the Prime Minister's request. Again at page 226 quoting B.S. Markesinis, the Theory and Practice of Dissolution of Parliament, comment that the Sovereign normally accepts the advice of the Prime Minister and grants a dissolution when this is requested. The refusal of a dissolution when the Prime Minister had requested it would probably be treated by him as tantamount to a dismissal. In 1950, during discussion of the problems caused by the Labour Government's small majority after the 1950 election, it was submitted by the Private Secretary to George VI that the Sovereign could properly refuse a dissolution if he were statisfied that (a) the existing Parliament was till vital, viable, and capable of doing its job, (b) a general election would be detrimental to the national economy and (c) he could rely on finding another Prime Minister who could carry on his Government for a reasonable period with a working majority. Even in British Parliamentary history the controversy between the "automatic and "discretionary" views of the prerogative of dissolution was raised in 1969. At that time labour had a clear majority in the Commons, there were press reports of Labour dissension within the party and the question raised was whether a Prime Minister could use the weapon of dissolution to defend his own position against attempts within the party to dislodge him. Again, in 1974 after the election in February, 1974 when no party had an absolute majority, the question was raised whether Mr. Wilson as Prime Minister was entitled to a dissolution if his Government were defeated in the Commons by a combined opposition vote. At that time certain labour members of Parliament who feared that a Liberal Conservative coalition might be formed to govern the country, urged that the Sovereign was both constitutionally and morally bound to grant dissolution whenever the Prime Minister requested it, but in reply the Lord President of the Council, Mr. Short, told them; Constitutional lawyers of the highest authority are of the clear opinon that the Sovereign is not in all circumstances bound to grant a Prime Minister's request for dissolution; it was impossible to define in advance the circumstances in which the Sovereign's discretion to refuse a request for a dissolution might be exercised".
' After surveying these events they have commented that the Sovereign should not refuse a request of the Prime Minister's dissolution except for very sti ong reason. They added that the view that the Sovereign reserve power may serve to restrain a Prime Minister who otherwise might be tempted to abuse his position is an argument for maintaining the reserve power as a potential weapon, not for abolishing it. It would, therefore, be seen that the power to refuse the request of dissolution made by the Prime Minister even in British Parliamentary system is not denied.
' The position does not appear to be any different in India. In the Indian Constitution, Article 89 permits dissolution of the Lower House of the Parliament by the President. This power, however, is to be exercised on advice of the Council of Ministers. By 42nd Constitutional Amendment Act, 1986, Article 74(1) of the Constitution was amended and the words the President" (who shall in the exercise of function act in accordance with such advice) were added in order to remove any ambiguity . However, notwithstanding the above position the right of the President/Governor to refuse dissolution is still recognised. In Practice and Procedure of Parliament by M.N. Kaul and S.I.
Shakdher (Third Edition) at page 897, the following statement of law appears:-- Dissolution of the Assembly.---"Normally a Governor should exercise the power of dissolution on the advice of Council of Ministers. If a Chief Minister who enjoys majority support advises dissolution, the Governor must accept the advice, but if he advises dissolution after losing his majority, the Governor need accept his advice only if the Ministry suffers a defeat on a question of major policy and the Chief Minister wishes to appeal to the electorate for a mandate on that policy.
In the case of a Chief Minister heading a single party Government which has been returned by the electorate in absolute majority, if the ruling party loses its majority because of defection by a few members, and the Chief Minister recommends dissolution so as to enable him to make a fresh appeal to the electorate the Governor may grant a dissolution. The mere fact that a few members of the party have defected does not necessarily prove that the party has lost the confidence of the electorate. If there is no-confidence motion against a Ministry and the Chief Minister, instead of facing the Assembly, advises the Governor to dissolve the Assembly, the Governor need not accept such advice but should ask the Chief Minister to get the verdict of the Assembly on the no- confidence motion.
' In a case where the Chief Minister recommends dissolution of the Assembly when the Budget has not been voted and the Ministry claims majority support the Ministry in such situation should face the Assembly and get the Budget passed before seeking dissolution for whatever reason. If, on the other hand, there is a reason to believe that the Chief Minister no longer commands majority support, it is clearly open to the Governor to take steps to ascertain if it is possible to install another Ministry which is able to command majority support and get the Budget passed. Failing both, the Governor has no alternative except to make a report to the President under Article 356 because Parliament alone could then sanction appropriation for carrying on the administration of the State.
' A Governor is not bound to accept the advice of a Chief Minister to dissolve the Assembly if the Chief Minister has lost the majority support."
' Basu in his famous commentary on Constitution of India, Volume 'F' (6th Edition) at pages 98-99 has commented that:-- "Mid-terms dissolution.---As has been stated above, a dissolution of the House of the People can take place in two ways:
(a) In the regular manner, on the expiry of the term of the House, as fixed by Article 83(2), ante. In this case, there is no room for any discretion. On expiry of the term, the house stands dissolved by force of the Constitution itself, and the President is bound to issue the order o. Dissolution on the date of expiry of the term of the house.
(b) But apart from this, under the conventions of the Cabinet system of Government which are applicable in India (vide Vol. E, pp.295, 301 et seq.) the council of Ministers (through the Prime Minister) has the right to ask for dissolution of the House even before the expiry of its current term, when it is outvoted in the House and contends that the House does no longer represent the will of the electorate. This demand by the Prime Minister may be presented to the President at any point of time during the term of the House. But it is discretionary with the President (subject to conventions), in certain circumstances, to refuse to oblige the Prime Minister, even after the introduction of the word 'shall' in Article 74(1), by the Constitution (42nd Amendment) Act, 1976 (see Vol. E, pp.303, 307, where the topic has been elaborately dealt with).
' Two decisions of the Indian Supreme Court, namely, Shamsher Singh v. The State of Punjab AIR 1974 SC 2192 and State of Rajhistan v. Union of India AIR 1977 SC 1061 also acknowledge the right of the President to refuse to act on the advice in exceptional circumstances.
' Reference may also be made to the judgment of the Full Bench of the Balochistan High Court in Muhammad Anwar Durrani v. Province of Balochistan through Chief Secretary and 10 others PLD 1989 Quetta 25 wherein the view taken was that there must exist some reasons for dissolving the Assembly even before its normal tenure under Article 112(1) of the Constitution. In that context, it was observed:-- "The assembly was dissolved within two weeks of its first session and democratic process was not allowed to function, apparently in an arbitrary and whimsical manner. An undefendable order cannot be defended. Any deviation from Constitutional path would be dangerous to the national life. There was no issue for which an appeal to electorate was necessary. Elections were held about a month before dissolution. It has not been stated that fresh mandate from the public was necessary so as to justify the hasty action."
' The position obtaining in certain other countries may also be stated. In Australia,-the dissolution can be refused--
(a) where the Ministry has been defeated on a purely administrative matter as distinguished from a legislative matter of importance;
(b) where there is no reasonable assurance that the dissolution would provide a working majority in favour of the Ministry;
(c) where the Ministry has been defeated in the House elected under its own auspices. (Nichalas Australian Constitution, 1952 Edition at 68 to 69).
' As regards Canada, it is stated by Dawson in Government of Canada, 19th Edition at page 162 that though the Governor who in the vast majority of cases allows the Prime Minister to exercise the power of dissolution without interference, there are exceptional circumstances when he made to refuse it e.g. Prima Minister asks it for a second time or an alternate Government may be formed.
Basu in his commentary, Vol. E, 6th Edition at page 426 has stated:-- "According to the Dominion practice, notwithstanding the words 'aid and advice', the President will be free to refuse a dissolution where it is improperly asked, or where to accede to the request to dissolve would amount to an abuse of that power. Thus, it would no doubt be refused when dissolution is sought by the same Prime Minister for the second time, as in England (see p.302, ante). In other cases, the President may consider whether it would be possible to form an alternative council of Ministers, without the Prime Minister who personally, might have lost the support of his own colleagues and party. It would again, be an improper request for dissolution when it is made by a Government-- `Not because its majority is slender or unreliable, nor because new issues would seem to require a new mandate from the electorate, but because it considered a given situation as opportune for obtaining a new lease of life from the electorate which might not be accorded so readily if the legislature were allowed to run its normal course. A moment of national excitement after external victory or internal commotion may offer a welcome opportunity for drowning memories of administrative blunders and unpopulated Legislation in a wave of legitimist or revoluntionary enthusiasm and securing a lengthy extension of the term of office of the party in power.The very foundation of the system breaks down if the party in office has the power, by an unscrupulous use of power of dissolution, to mislead and escape electoral judgment'."
' Another reason advanced by Mr. Abdul Hafeez Pirzada, Advocate counsel for respondent No,1 in support of his plea that this Court cannot interfere where dissolution has taken place on the advice of the Chief Minister was that the question was esentially political in nature and falls outside the pale of judicial review. The learned counsel has also relied upon the theory of trichotomy of powers.
' We are not impressed by this argument. Similar contention was raised before the Full Bench of the Balochistan High Court in Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25 and was repelled in the following words:- "It is contended that Political questions cannot be settled by the Courts. No doubt, pure political questions cannot be agitated before the Courts, but where the rights of the parties are affected, and the actions of the functionaries of the State are challenged, being violative of the provisions of the Constitution or law, then the Courts must decide such questions. In the present case, it cannot be urged that it is a pure political question. In fact, it involves the dissolution of Assembly which has been elected by the electorate of the Province after going through the election process. A vested right has accrued to the members of the Provincial Assembly, as well as the electorate. There is erosion of their civil rights. An important organ of the State was demolished, therefore, it does not constitute a pure political question."
' In Full Bench judgment of this Court in Kh. Muhammad Sharif v. Federation of Pakistan, through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others PLD 1988 Lah. 725 at page 738 it was observed that where a political question is tied up with the question of constitutional right or obligation, the Court must look into it. This judgment was upheld by the Supreme Court of Pakistan in Federation of Pakistan v. Muhammad Saifullah Khan PLD 1989 SC 166.
This aspect of the matter was dealt with in details by Shafiur-Rahamn, J. At pages 208 to 212 of the report. This objection of the learned counsel for the respondents cannot, therefore, prevail.
115. We may next advert to the argument of the respondents' learned counsel that as the petitioner has failed to establish that the notice for resolution of vote of no-confidence was given at 12-00 noon, the petition should be dismissed and no relief should be granted to the petitioner. In support of this submission, the learned counsel relied upon two principles; firstly that a petitioner/plaintiff has to succeed on the strength of his own case and not because of weakness of the case of the other party; secondly, that a petitioner who does not come to the Court with clean hands is not entitled to relief in exercise of discretionary jurisdiction.
116. It is true that we have found that both the parties have not come out with complete truth and also that service of the notice of resolution of vote of no-confidence on the Secretary at 12-00 noon does not stand proved. But in the circumstances of the case, these findings do not afford a justification for refusing to declare the impugned order of the dissolution of the Assembly to be without lawful authority especially when the advice of the Chief Minister and the order of dissolution both suffer from mala fides. We may observe that the petitioner was not a witness to the delivery of notice and, therefore, it was not his testimony but that of Mr. Ghulam Haider Wyne, Ex-Chief Minister which was found not safe enough to be relied upon. We are, therefore, unable to agree that in the circumstances of the case, the petitioner is not entitled to the grant of declaration prayed for.
117. It may be pertinently observed that the determination of the exact time of delivery of notice of resolution for vote of no-confidence is not the main thing in issue but the real and crucial question germane to the effectual resolving of the controversy is as to whether the notice had preceded the advice or was the advice tendered before notice was given. This all important aspect has been found by us in favour of the petitioner.
118. An equally important if not more weighty reason for not denying the relief is the nature of 'fis' before us. As observed earlier, the dispute concerns the very existence of an important institution i,e, the legislative organ of the Province of the Punjab. The right of the members of the Provincial Assembly to continue as members for the normal tenure of the Assembly is guaranteed by the Constitution has been held by the Supreme Court of Pakistan in Mian Muhammad Nawaz Sharif v.
Mr. Ghulam Ishaq Khan and others (Constitutional Petition No,8 of 1993 = PLD 1993 SC 473) to be a fundamental right. In such a situation strictly speaking the 'fis' cannot be treated an inter parties 'fis' in the conventional sense but the Court must also examine its impact on the rights of those affected by it directly or indirectly i,e, the members of the Assembly and the mass of the people of the province irrespective of the fact whether they were before the Court or not. The cases involving infringement of fundamental rights are to be treated at a level different from ordinary litigation involving disputes between two private individuals simpliciter.
119. We are fortified in our view by the following observations of the Honourable Supreme Court of Pakistan in Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416:-- "In this milieu, the adversary procedure where a person wronged is the main actor if it is rigidly followed, for enforcing the Fundamental Rights, would become self-defeating as it will not then be available to provide 'access to justice to all' as this right is not only an internationally recognized human right but has also assumed constitutional importance as it provides a broad-based remedy against the violation of human rights and also serves to promote socio economic justice which is pivotal in advancing the national hopes and aspirations of the people permeating the Constitution and the basic values incorporated therein, one of which is social solidarity i,e, national integration and social cohension by creating an egalitarian society through a new legal order."
' This ideal can only be achieved under the rule of law by adopting the democratic way of life as ensured by Fundamental Rights and principles of policy. The intention of the framers of the Constitution is to implement the principles of social and economic justice enshrined in the principles of policy within the framework of fundamental rights. Chapters I and II of Part H of the Constitution which incorporate Fundamental Rights and directive principles of State Policy, respectively occupy a place of pride in the Scheme of the Constitution, and these are the conscience of the Constitution, as they constitute the main thrust of the commitment to socio- economic justice. The directive principles of State Policy are to be regarded as fundamental to the governance of the State but they are not enforceable by any Court. Nontheless they are the basis of all legislative and executive actions by the State for implementing the principles laid down therein. As the principles of democracy are not based on dogmas and also do not accept the theory of absolutes in any sphere of socio-economic justice, therefore, the authors of the Constitution, by enumerating the Fundamental Rights and the Principles of Policy, apparently did so in the belief that the proper and rational synthesis of the provisions of the two parts would lead to the establishment of an egalitarian society under the rule of law. However, while implementing the directive Principles of Policy, the State should not make any law which takes away . Or abridges the Fundamental Rights guarnateed by Chapter 1 in view of the embargo placed by Article 8(1) and (2). Necessarily, therefore, the directive principles of State Policy have to conform to and to operate as subsidiary to the Fundamental Rights guaranteed in Chapter 1, otherwise the protective provisions of the Chapter will be a mere rope of sand. Law, in the achievement of this ideal, has to play a major role, i,e, it has to serve as a vehicle of social and economic justice which this Court is free to interpret.
' Articles 3, 37 and 38 of the Constitution juxtapose to advance the cause of socio-economic principles and should be given a place of priority to mark the onward progress of democracy.
These provisions become in an indirect sense enforceable by law and thus, bring about a phenomenal change in the idea of co-relation of Fundamental Rights and directive principles of State Policy. If an egalitarian society is to be formed under the rule of law, then necessarily it has to be by legislative action in which case it would be harmonious and fruitful to make an effort to implement the socio-economic principles enunciated in the Principles of Policy, within the framework of the Fundamental Rights by enlarging the scope and meaning of liberties, while juridically defining them and testing the law on its anvil and also, if necessary, with the co-related provisions of the Objectives Resolution which is now a substantive part of the Constitution."
120. At another place in the same report, it has been observed as under: "This approach is in tune with the era of progress and is meant to establish that the Constitution is not merely an imprisonment of the past, but is also alive to the unfolding of the future. It would thus, be futile to insist on ceremonious interpretative approach to constitutional interpretation as hitherto undertaken which only served to limit the controversies between the State and the individual without extending the benefits of the liberties and the Principles of Policy to all the segments of the population.
' After all the law is not a closed shop and even in the adversary procedure, it is permissible for the next friend to move the Court on behalf of a minor or a person under disability, or a person under detention or in restraint. Why not then a person, if he were to act bona fide activise a Court for the enforcement of the Fundamental Rights of a group or a class of persons who are unable to seek relief from the Court for several reasons. This is what the public interest litigation/class action, seeks to achieve as it goes further to relax the rule on locus standi so as to include a person who bona fide makes an application for the violation of any constitutional right of a determined class of persons whose grievances go unnoticed and unredressed. The initiation of the proceedings in this manner will be in aid of the meaningful protection of the rule of law given to the citizens by Article 4 of the Constitution, that is, 'To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever may be, and of every other person for the time being within Pakistan'."
' Again at yet another place, it was observed: "If the framers of the Constitution had intended the proceedings for the enforcement of the Fundamental Rights to be in a strait-jacket, then they would have said so, but not having done that, one would not read any constraint in it. Article 184(3), therefore, provides abundant scope for the enforcement of the Fundamental Rights of an individual or a group or a class of persons in the event of their infraction. It would be for the Supreme Court to lay down the contours generally in order to regulate the proceedings of group or class actions from case to case."
121.In an Islamic State like Pakistan where the sovereignty belongs to Almighty Allah and where the authority is to be exercised by the chose representatives of people as a trust, the right of the citizens to be governed in accordance with the Constitution, has been held to be an inalienable right. The Objectives Resolution which has now become a substantial part of Constitution guarantees Fundamental Right inter alia of political justice. That being so, we are unable to understand as to how the petition can be or should be dismissed when in view of the findings that the Chief Minister while tendering the advice had acted mala fide and further that at the time when the notice of resolution of non-confidence was given no advice for dissolution had been tendered While deciding the controversy like the present one, the following observation of the Supreme Court in Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 at page 22, may be borne in mind.
"A further reason may be added that in Pakistan's Constitutional set up, with the Objectives Resolution being its part, new situation with new principles of public policy with Islamic Ethos/Spirit would have to be defined and applied." Claims and assertions against the teaching of Islam- - Injunctions in the Holy Qur'an and the Sayings of the Holy Prophet (p.b.u.h.) were repelled."
' Similarly in Qazalbash Waqf and others v. Chief Land Commissioner, Punjab Lahore and others PLD 1990 SC 99 at page 114, it has been observed: "A framework can be devised to enable adjustment of rights and liabilities in this behalf on voluntary basis. But disagreeing with the scholar I am of the view that they should also be enforceable throngh Courts if the voluntary duty suffers neglect."
122.It is also interesting to note that even in what professes to be a secular State like India, the position so far as enforcement of Fundamental Rights is concerned does not appear to be any different and it has been repeatedly held that the Courts cannot refuse to grant relief in a case involving infringement of Fundamental Rights on procedural objections. In Behram Khurshid Pesikaka v. State of Bombay AIR 1955 SC 123 at page 127, it has been observed that: "The rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovercigr democratic republic and to secure to all its citizens justice, social economic and political, liberty of thought, expression, belief, faith and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy Reference to sonic of Articles, inter alia, Arts. 15(1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State 'you can discriminate' or get convicted by waiving the protection given under Arts. 20 and 21."
' In another case from Indian Jurisdiction namely Yousaf Ali Abdulla Fazalbhoy and others v. M.S. Kasbekar and another AIR 1982 Bombay 135, at page 143, the observation made is that: "If there is any continuing action which is violative of fundamental rights of any person that must come to an end. No law or legal principle can prevent a Court from giving remedy for violation of fundamental rights once it is found to exist."
It may also be stated that in matters of public interest the petitioner even if he wishes to withdraw the petition filed by him need not be permitted to do so. It was so held in (AIR 1988 SC 221).
123. As a result of the above discussion the contention of the learned counsel for the petitioner does not merit to be sustained.
124. Before parting with the case, we may state that we are fully aware that the procedure, which has been adopted by us while deciding this petition, may not be usual but then the circumstances of the case as also the issues involved are exceptional in nature. As already observed, the dispute relates to the very existence of the legislative organ of the Province of Punjab, its 248 members and crorers of citizens. It is correct that normally disputed questions of facts are not adjudicated upon the exercise of constitutional jurisdiction but equally correct is the position that there is no prohibition in any law which prevents this Court from even recording evidence and holding an inquiry into the facts in order to do justice.
125. There is no procedure prescribed in the Constitution for the decision of petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. However, Article 202 of the Constitution empowered this Court to frame rules to regulate its own procedures. Similar provisions existed in the 1956 Constitution under which this Court had framed rules providing procedure for adjudicating upon the constitutional petition. The said rules are contained in Chapter 4-J, Volume V of the High Court Rules and Orders, Rule 7 of which read as under:-- "All questions arising for determination of such petitions shall be decided ordinarily upon affidavits but the Court may direct that such questions as it may consider necessary be decided on such other evidence and in such manner as it may deem fit and in that case it may follow such procedure and may pass such order as may appear to it to be just."
126. As is evident from the language of the rule itself, power vests in this Court to not only record evidence but also follow such procedure as may appear to it to be just. In our order dated 28th June, 1993, we have explained the reasons as to why we felt persuaded to summon as witnesses the officers who had dealt with the advice in the Governor House and Chief Secretariat.
127. In Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 the Supreme Court was pleased to observe that the high Court, in its constitutional jurisdiction, can record evidence. In Mirza Muhammad Shall v. The Collector, Sheikhupura and others PLD 1968 Lahore 403 a Division Bench of this Court had recorded evidence to find out the correctness of the pleas raised before it.
128. Reference may also be made to Halsbury's Law of England (Fourth Edition), Vol. 11 para. 1159, page 818, where the law on the subject is stated as thus: "Nature of evidence admissible and necessary.---Where certiorari is sought on the ground of error of law on the face of the record, the Court will not admit any extraneous evidence; the error must be apparent from the record itself. Where certiorari is sought on the ground of absence or excess of jurisdiction, bias by interest, fraud or breach of natural justice, extraneous evidence of these matters will be admissible, and indeed necessary if they are not apparent on the face of the record."
129. We may also state that Supreme Court of Pakistan in its recent judgment, Mian Muhammad Nawaz Sharif v. Federation of Pakistan, has been pleased to hold that in view of Article 17 of the Constitution, to obtain political justice and to remain a member of the Assembly during its normal tenure is a fundamental right. That being so, as the present case involves the enforcement of fundamental rights, it is to be treated at a pedestal higher than an ordinary matter which does not involve the enforcement of fundamental rights. In somewhat similar situation, the Indian Supreme Court, while construing the provisions of Article 32 of the Indian Constitution which entitles the Supreme Court to issue a writ for enforcement of fundamental rights, observed that: "....In other words he maintains that nobody has the fundamental right that this Court must entertain his petition or decide the same when disputed questions of fact arise in the case. We do not think that that is a correct approach to the question. Clause (2) of Article 32 confers powers on this Court to issue directions or orders or writs of various kinds referred to therein. This Court may say that any particular writ asked for is or is not appropriate or it may say that the petitioner has not established any fundamental right or breach thereof and accordingly dismiss the petition. In both cases this Court decides the petition on merits. But we do not countenance the proposition that, on an application under Article 32, this Court may decline to entertain the same on the simple ground that it involves the determination of disputed questions of fact or on any other ground. If we were to accede to the aforesaid contention of learned counsel, we would be failing in our duty as the custodian and protector of the fundamental rights."
130. These observations would equally apply in a case before this Court under Article 199 of the Constitution if it involves the enforcement of fundamental rights.
131. It may also be stated that Raja Muhammad Anwar, Advocate, learned counsel for the respondents himself had submitted that this Court should endeavour to find out the truth by holding an inquiry, if necessary, as was done in the case of Tariq Transport. In the end, we may also refer to Fundamental Law of Pakistan by Mr. A. K. Brohi (1958) at page 449 where, while considering the ratio of writ jurisdiction, it has been stated: "Being a constitutional jurisdiction, the writ jurisdiction is paramount and every form of limitation which normally fetters the exercise of other remedies, as they arc reflected in the pre-existing state of law of our country, does not in any manner control or delimit its scope."
132. It was for the reasons detailed above that we allowed this constitutional petition and declared the impugned order of the. Governor of the Punjab dated 29-5-1993 dissolving the Provincial Assembly of the Punjab to be without lawful authority and of no legal effect, with the result that the Provincial Assembly of the Punjab stood restored.
(Sd.)
(M. Mehboob Ahmad) (Chief Justice)
(Sd.) (Sd.)
Sardar Muhammad Dogar, Khalil-ur-Rehman Khan Judge Judge (Sd.) (Sd.)
Irshad Hasan Khan Malik Muhammad Qayuum Judge Judge