ABDUL KARIM KHAN KUNDI, CJ.--These three similar writ petitions, which were heard together, call in question the constitutional validity of the order dated 30th May, 1993 of the Governor North West Frontier Province whereby on the advice of the then Chief Minister N.W.F.P. Mr. Mir Afzal Khan, tendered on the same day at 7.00 A.M, the Provincial Assembly of the N.W.F.P, was dissolved under clause (1) of Article 112 of the Constitution of the Islamic Republic of Pakistan and further in exercise of the powers conferred by Article 133 of the Constitution Mr. Mir Afzal Khan, Chief Minister was asked to continue to hold the office of the Chief Minister N.W.F.P, until his successor enters upon the office of the Chief Minister.
2. The first writ petition (No.395/1993) was filed on 5-6-1993 by as many as four aggrieved ex-Members of the Provincial Assembly, namely, Nawabzada Mohsin Ali Khan, Mr. Farid Khan Toofan, Mr. Javed Akbar and Mr. Hidayatullah Khan wherein the impugned order was challenged on the following grounds:-
(i) The Chief Minister was not competent to advise dissolution of the Provincial Assembly as he had not only lost majority in the House but had been totally alienated and he was also fully aware that notice of a resolution for a vote of no-confidence was being moved against him;
(ii) The advice was tendered arbitrarily and unilaterally without taking the Cabinet into confidence and consulting the members of the Provincial Assembly and without disclosing reasons;
(iii) The Chief Minister was disqualified to tender advice to the Governor to dissolve the Provincial Assembly as prior to the advice tendered by him a verbal notice of a resolution for a vote of no-confidence against him was conveyed to him by the petitioner Javed Akbar Khan through the Speaker of the Provincial Assembly and later on a written notice was also given to the functionaries of the Provincial Assembly Secretariat;
(iv) The Governor N.W.F.P, had dissolved the Provincial Assembly mechanically despite the fact that he had forty eight hours at his disposal to ascertain as to whether or not the Chief Minister suffered from any disability to tender advice and the advice tendered by him was free from malafides;
(v) Provisions of Article 133 of the Constitution were wrongly invoked and no order was passed under clause (3) of Article 105 of the Constitution; and
(vi) The order as well as the advice were tainted with malafides.
3. On the factual level it was alleged that taking exception to the conduct of the Chief Minister after the dissolution of the National Assembly of Pakistan a majority of the members of the Provincial Assembly of N.W.F.P, had decided to move notice of a resolution for a vote of no-confidence against him and during a lunch hosted by him in the Frontier House on 27th May, 1993, which was also attended by the Speaker of the Provincial Assembly, petitioner Javed Akbar Khan, who during those days was one of his Advisors, had informed the Speaker that notice of a resolution for a vote of no-confidence against the Chief Minister was in the offing who in turn had informed the Chief Minister and apart from that intimate disclosure the imminence of such a notice was spotlighted by several Newspapers. Resultantly, the Chief Minister started taking steps to guard against the move and besides inducting eight new Ministers in his Cabinet on 29th May, 1993 held a special meeting of the Cabinet and hosted a dinner in honour of the M.P. As which was attended by the Speaker as well. That on 29th May, 1993 at about 10.00 P.M. a large number of M.P.As including the petitioners held a meeting at M.P.As' Hostel, Peshawar which ended late in the night and a formal notice of a resolution for a vote of no- confidence was duly drafted and signed by 42 M.P.As. However, pursuant to an apprehension that on getting an inkling of the notice through the intelligence network the Chief Minister might take some drastic step to preempt the move it was decided that the notice should be delivered to the Secretary of the Provincial Assembly forthwith. Accordingly, petitioners Javed Akbar Khan and Hidayatullah Khan having been assigned the job took the notice to the residence of the Secretary Provincial Assembly at about 5.00 A.M. And knocked at his door for about 10 minutes but when no one responded they went to the residence of the Additional Secretary, Provincial Assembly who entertained them with a hot cup of tea and saw them off by saying that he will receive the notice in the office after making the requisite entry in the relevant register. Thereafter, the said petitioners reached the Assembly Secretariat at about 7.15 A.M. Where the staff of the Assembly showing courtesy made them sit in the Secretary's office. The Secretary appeared at the entrance of the Assembly Secretariat between 7.30 and 7.40 A.M. And as- soon the petitioners moved towards him he asked them to wait in his office and promised to join them in a few minutes after seeing the Speaker but instead of keeping his word he left for Chief Minister's House with the Speaker and afterwards they made attempt to establish contact in the Chief Minister's House over telephone that they were informed that the Chief Minister had left along Speaker and the Secretary for the Governor House that thereafter they did their best to persuade the Additional Secretary to accept the notice but in vain and later in the day rumours spread that the Provincial Assembly had been dissolved.
4. The second writ petition (No.406/1993), which is a slightly retouched reproduction of the first writ petition, was filed on 12-6-1993 by Begum Nasim Wali Khan and Pir Sabir Shah Ex-MPAs wherein the allegations reflected in the first writ petition were reiterated by and large and it was prayed that the order of dissolution of the Provincial Assembly may be quashed and the Provincial Assembly may be restored to function for its full term provided in the Constitution.
5. The third writ petition (No.407/1993) was also filed on 12.6.1993 by Mr. Habibullah Khan Tareen, Speaker, Provincial Assembly of NWFP, it sought annulment of the impugned order and restoration of the Provincial Assembly mainly on the ground of malafides and was founded on the allegations that Mr. Mir Afzal Khan was elected as leader of the House in the first session of the Assembly and commanded the confidence of majority of the members and the Provincial Assembly functioned smoothly in accordance with the Constitution and its performance was enviable by all standards but the scenario changed in the wake of the dissolution of the National Assembly on 18.4.1993 when certain pressure groups started making demands for the dissolution of the Provincial Assembly and the Awami National Party, which was the major coalition partner, detached itself from the Government as a mark of pretest against the dissolution of the National Assembly with the result that Mr .Mir Afzal Khan lost 21 members in addition to 8 members of the Jamat-e-Islami who had already withdrawn their support. Realising that notice of a resolution for a vote of no confidence was on the cards he inducted 8 more Ministers in his Cabinet at 5.00 P.M. On 29.5.1993, approved the programme for the Budget session of the Assembly and also assured the members of the House that there was neither any legal or Constitutional ground for the dissolution of the Assembly nor the situation demanded such an action and further even in the Cabinet meeting held after the induction of eight new Ministers any impression of his intention to tender advice for dissolution of the Assembly was not given. However, on petitioner's arrival in the office on 30.5.1993 a number of MPAs contacted him to verify the rumour that an advice has been tendered by the Chief Minister to the Governor to dissolve the Assembly but he expressed ignorance about it and in the meantime at about 8.30 A.M. In response to a telephonic call from Mr. Mir Afzal Khan he and the Secretary, Provincial Assembly left for the Frontier House and on reaching there he was told by the Chief Minister that under the direction of the President of Pakistan he had tendered advice to the Governor to dissolve the Provincial Assembly. Sometime afterwards he and the Secretary, Provincial Assembly accompanied the Chief Minister to the Governor House where at about 11.00 A.M. The order dissolving the Provincial Assembly was handed over to them. He pleaded that the advice tendered by the Chief Minister was patently illegal, malafide and void ab initio and that the order of dissolution of the Provincial Assembly was the outcome of collusion between the Chief Minister and the Governor as a result of pressure from outside.
6. The written statements on behalf of the Province of North West Frontier were filed by the Chief Secretary in aft the petitions wherein two preliminary objections were taken in regard to the maintainability of the petitions. The first objection was that highly disputed and contentious questions of fact had been raised in the petitions and the second objection was that in the face of the bar contained in Article 105(2) of the Constitution the advice tendered by the Chief Minister to the Governor was not open to judicial review. An additional preliminary objection was also taken in writ petition No.407/1993 to the effect that the Speaker had not come to the Court with clean hands in that he had not only made an improvement on his case as stated in the written statement filed in Writ Petition No.395/1993 but had also to some extent contradicted its contents. The allegations made in the petitions were blatantly denied and it was added that on 30.5.1993 at about 7-30 A.M. The Chief Secretary on receiving a telephonic message from the Governor to reach the Governor House at the earliest had gone to the Governor House at about 8.00 A.M. Where he was informed by the Governor that he had received an advice from the Chief Minister at 7.00 A.M. To dissolve the Provincial Assembly and that he had decided to dissolve the Assembly with immediate effect and directed him to take necessary steps including drafting of an order of dissolution. The requisite order was accordingly drafted in consultation with the Advocate General N.W.F.P, and it was signed by the Governor at or about 9.00 A.M.
7. The Speaker of the Provincial Assembly was impleaded as respondent No.2 in the first writ petition and in the main body of the petition was portrayed as a henchman of Mr .Mir Afzal Khan and serious allegations were levelled against him that ranged from his participation in the banquets hosted by Mr. Mir Afzal Khan and the Cabinet meeting held on 29th May, 1993 to the hijacking of the Secretary of the Provincial Assembly, N.W.F.P, from the Assembly Secretariat. In his written statement, however, the Speaker denied the allegations and ascribing his participation in the functions to a mere formality took the stance that the order of dissolution of the Provincial Assembly was malafide and he intended to assail the same through an independent Constitutional petition.
8. The Secretary and the Additional Secretary of the Provincial Assembly were also impleaded as respondents in the first petition. The Secretary in his written statement admitted as correct the allegations made in the petition that when he arrived at the Assembly Secretariat petitioners Javed Akbar Khan and Hidayatullah Khan had moved towards him and he had asked them to wait in his office and had promised to join them in a couple of minutes after meeting the Speaker. He further added that on the direction of the Speaker he had accompanied him to the Chief Minister's House and from there to the Governor House. The Additional Secretary also admitted in his written statement that petitioners Javed Akbar Khan and Hidayatullah Khan had visited his residence and wanted him to receive notice of a resolution for a vote of no-confidence against the Chief Minister but after entertaining them with a cup of tea he had advised them to deliver the same to the Secretary of the Provincial Assembly as required under Rule 18 of the Provincial Assembly of N.W.F.P. Procedure and Conduct of Business Rules, 1988. He, however, denied the allegation that he had undertaken to receive the notice in the Assembly Secretariat after making an entry in the Register. He also denied the allegation that the said notice was presented to him in the Assembly Secretariat by the said petitioners and he had refused to receive the same.
9. Mr. Mir Afzal Khan, Care-taker Chief Minister N.W.F.P., was arrayed as a respondent in all the petitions. In the written statements filed by him he submitted at the outset that his name may be struck off from the panel of the respondents as under Article 248 of the Constitution of the Islamic Republic of Pakistan he was immune from process of Court. However, notwithstanding the claim of immunity he controverted allegations made in the petitions and stated that he had tendered an advice in writing in person to the Governor N.W.F.P, on 30th May, 1993 at 7.00 A.M. In exercise of the unfettered power and discretion conferred on him by Article 112 (1) of the Constitution. He denied the allegation that eight q&embers belonging to Jamat-e-Islami had withdrawn their support and the parting "of the ways by Awami National Party had ever threatened him with notice of a resolution for a vote of no-confidence and maintained that Awami National Party was a minor coalition partner and delighted on its exit eight members of Jamat-e-Islami and eight members of the Pakistan Peoples Party had declared their full support to him. Regarding the induction of eight new Ministers in his Cabinet he stated that the decision to fill up the vacancies caused by the removal of Nawabzada Mohsin Ali Khan and the resignation of six Ministers belonging to Awami National Party was taken on 6.5.1993 but it materialised on 29.5.1993. In the written statement filed in Writ Petition No.407/1993 he levelled scathing criticism against Nawabzada Mohsin Ah Khan and stated, inter alia, that on the evening of 29th May, 1993 after the Cabinet meeting he had received a Source information that huge funds had reached Nawabzada Mohsin Ah Khan which were to be distributed during the forthcoming Eid holidays to subvert the loyalties pf some of the members of the Provincial Assembly by purchasing their conscience through money and material gains and if he had permitted this sinister plan to succeed it would have threatened the very structure of parliamentary democracy in the country. He also vehemently denied that he had advised the dissolution of the Provincial Assembly at the behest of the President of Pakistan. He further stated that the Speaker of the Provincial Assembly was under the influence of his cousin Mr. Gohar Ayub Khan, Speaker of the National Assembly, and had filed the Writ Petition containing wild allegations when his request for inclusion in the caretaker Cabinet was turned down by him on the advice of the Advocate General that it was not permissible under the Constitution.
10. The Governor N.W.F.P, who was impleaded as respondent in Writ Petitions No.395 and 407 of 1993 sent a communique through Mr. Abdul Hafiz Pirzada, Advocate wherein besides claiming immunity under Article 248 of the Constitution and seeking deletion of his name from the list of the respondents he made the following statement:- "I reiterate and confirm that on 30th May 1993 at 7 A.M. (Morning) Khan Mir Afzal Khan, the Chief Minister, NWFP, came to the Governor House, Peshawar and handed over to me in person an advice under Article 112 (1) of the Constitution to dissolve the Provincial Assembly of the NWFP immediately. This advice carried an endorsement indicating the aforesaid time of the communication of the advice to me. I made an endorsement of acknowledgement of receipt of the advice thereon and thereafter summoned the Chief Secretary of the Province to reach the Governor House immediately.
At about 8 A.M. The Chief Secretary came and met me when I handed over to him the above advice of the Chief Minister and informed him that I was accepting the same and he should take all necessary steps under the law and the rules for implementation of my decision to dissolve the Assembly.
Later on the dissolution order was put up to me and I signed the same."
11. The learned counsel for the parties addressed lengthy and elaborate arguments and raised many Constitutional and legal issues but before we proceed to consider the questions that arise for determination in these Writ Petitions it would be appropriate to reproduce in extenso the advice tendered by the Chief Minister and the order of the dissolution of the Provincial Assembly passed by the Governor, NWFP. The advice is worded thus: "CHIEF MINISTER, N.W.F.P.
MIR AFZAL KHAN DISSOLUTION OF THE PROVINCIAL ASSEMBLY, NORTH WEST FRONTIER PROVINCE UNDER ARTICLE 112 (1)
OF THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN. ________________________________ I, Mir Afzal Khan, the Chief Minister of North West Frontier Province, advice Brig: (Retd) Amir Gulistan Janjua, Governor, North West Frontier Province, to dissolve the Provincial Assembly, North West Frontier Province at once.
Sd/- xxx (MIR AFZAL KHAN)
CHIEF MINISTER NORTH WEST FRONTIER PROVINCE 30th May, 1993.
GOVERNOR NORTH WEST FRONTIER PROVINCE. _______________________________ Delivered to the Governor, NWFP, under my signature this day the 30th May, 1993 at 7.00 AM.
Sd/- xxx (MIR AFZAL KHAN)
CHIEF MINISTER NORTH WEST FRONTIER PROVINCE 30th May, 1993.
Received from Mr. Mir Afzal Khan, Chief Minister at 07.00 Hors on 30th May, 1993.
Sd/- xx Governor".
The text of the order is reproduced hereunder:- "GOVERNOR DISSOLUTION OF THE PROVINCIAL ASSEMBLY NWFP UNDER ARTICLE 112 (1) OF THE CONSTITUTION OF ISLAMIC REPUBLIC OF PAKISTAN, 1973. ______________________________________________________________________________________________________ WHEREAS, I, Amir Gulistan Janjua, Governor North-West Frontier Province, have been advised by Mr. Mir Afzal Khan, Chief Minister, NWFP, under Clause
(1) of Article 112 (1) of the Constitution to dissolve, at once, the Provincial Assembly of N.W.F.P.
NOW, THEREFORE, I, Amir Gulistan Janjua, Governor, North West Frontier Province, in exercise of my powers under Article 112(1) of the Constitution of the Islamic Republic of Pakistan, 1973, do hereby dissolve the Provincial Assembly with immediate effect.
I do further ask the Chief Minister NWFP, Mr. Mir Afzal Khan, under Article 133 of the Constitution, to continue to hold the office of the Chief Minister, NWFP, until his successor enters upon the office of the Chief Minister.
Sd/- xxx (Amir Gulistan Janjua)
Peshawar Dated thirty May Nineteen Hundred and ninety three."
12. To start with we may examine the true meaning and import of clause (1) of Article 112 of the Constitution which deals with the dissolution of the Provincial Assembly by the Governor on the advice of the Chief Minister. This clause was the main and the only clause of Article 112 when it was originally enacted in the Constitution but after coming into force of the Constitution (Eighth Amendment) Act, 1985 it was renumbered as clause (1) and in the Explanation the words "notice of a resolution for a vote of no-confidence has been given" were substituted for the words "resolution for a vote of no-confidence has been moved". The Article reads as follows:- "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."
13. It was contended by Mr .Mohammad Akram Sheikh, learned counsel for the petitioners in Writ Petition No.395/1993, that this clause and the Explanation were susceptible of two interpretations one strict and the other liberal which symbolised two concepts one autocratic and the other democratic. According to the strict interpretation a Chief Minister who did not suffer from the disability mentioned in the Explanation had unfettered power to advise dissolution of the Provincial Assembly and the Governor had no choice but to dissolve the Provincial Assembly straightaway if so advised by the Chief Minister and if he elects to sit on the advice the Provincial Assembly would stand dissolved after the expiry of forty eight hours, and further that the notice of a resolution for a vote of no-confidence should be in writing and given in the Assembly. In contrast the liberal interpretation representing the second concept was that the power of the Chief Minister to tender advice for dissolution of the Provincial Assembly was not unbridled and the Chief Minister against whom a notice of a resolution for a vote of no-confidence had been given in the Assembly or to a responsible functionary of the Assembly Secretariat or elsewhere or who, in view of the majoritarian rule enshrined in the Constitution, had lost majority in the House or who had not taken the .Cabinet in confidence or consulted his colleagues was debarred from tendering advice and in any event an advice not supported by reasons was to be kept out of consideration altogether and the Governor was not bound to dissolve the Provincial Assembly forthwith on receipt of the advice but was obliged to hold an inquiry to find out as to whether or not there existed notice of a resolution for a vote of no-confidence against the advising Chief Minister or to require the advising Chief Minister under Article 105 (1) to reconsider the advice particularly if it smacked of malafide or to ask him, under Article 130 (5), to obtain a vote of confidence from the Provincial Assembly or require him, under Article 131 (c), to submit the advice to the Cabinet for consideration and for these very purposes the time frame of forty eight hours had been provided in clause (1) and for want of expression 'written' in the Explanation a verbal notice of a resolution for a vote of no-confidence was not only permissible but was also sufficient to satisfy the requirements of the Explanation. He further contended that clause (1) of Article 112 may be interpreted in accordance with the liberal approach because such an interpretation would not only be in line with the principle enshrined in the Objectives Resolution that the State power being a sacred trust should not be exercised arbitrarily but would also be a step towards structuring discretion which was an essential requirement of the present time and besides it would advance the cause of the Constitution and the democracy and would discourage arbitrary dissolution of Assemblies and holding of frequent elections which were not a solution of the onerous problems being faced by the country. He quoted the following passage from the Book titled "The History and Practice of Dissolution of Parliament" by B.S.MARKESINIS:- "A dissolution of Parliament, on the Prime Minister's advice, is a very serious and important decision. In the words of Harold Laski: "Dissolution is an invaluable mechanism. But it is, of course, an exceedingly delicate instrument, about the uses of which there are grave differences of opinion. "Thus dissolution shortens the life of existing Parliament and plunges the country into the tumult and turmoil of elections which are bound to disrupt its normal activities. Furthermore, elections are costly, and frequent elections can be detrimental to the national economy."
He also placed reliance on the observations made in Muhammad Anwar Durrani v. Province of Baluchistan (PLD 1989 Quetta 25) that reasons in support of advice would naturally promote healthy democratic Conventions.
14. Mr.K.M.A. Samdani, learned counsel for the Speaker in Writ Petition No.407/1993, argued that the Constitution was a living document, therefore, the approach in regard to interpretation of its provisions must be progressive and purposive and the omissions should be supplied in the interest of justice. He emphasised the need for structuring discretion and in support of his contentions cited a judgment of the Supreme Court reported as Chairman. Regional Transport Authority. Rawalpindi vs. Pakistan Mutual Insurance Company Limited. Rawalpindi. (PLD 1991 SC 14) wherein it was held that wherever wide- worded powers conferring discretion are found in a statute there remains always a need and the desirability to structure the discretion. He further added that the power of advice was not unfettered and it was necessary to record reasons for the advice because in the absence of reasons it cannot be judged whether the advice is judicial or arbitrary and in any case the citizens had a right to know as to why the normal period of five years had been reduced. He also criticised the methodology of solving the problems through mid term polls on the ground that the masses were illiterate, the urban middle class was irrelevant and the politicians has their own axe to grind and advocated that this Court should assume intellectual leadership by interpreting the Constitution in a manner that advances the cause of democracy.
15. Nawabzada Ibdat Yar Khan, learned counsel for the petitioner in Writ Petition No.406/1993, addressed almost identical arguments while Mr. Abid Hussain Minto, learned counsel for the Speaker, the Secretary and the Additional Secretary Provincial Assembly in Writ Petition No.395/1993, fully supported the contentions raised by the learned counsel for the petitioners and added that the Chief Minister has to keep the majority throughout the period he remains in office and for the purpose of giving an advice for dissolution of Assembly he is not competent if he is under a threat of a vote of no-confidence and that unless the advice and the ensuing order of dissolution are supported with reasons the Courts cannot judge their legality and illegality and that in view of the powers that-the Governor has under the Constitution he has an active role to play with regard to the advice.
16. Mr. Fakhruddin G. Ebrahim, leamed counsel for the Province of North West Frontier in Writ Petitions No.395 and 406 of 1993, on the other hand contended that the language of clause (1) of Article 112 and the Explanation thereto was clear and unambiguous, therefore, there was no room for the so- called progressive interpretation pleaded by the learned counsel for the petitioners or reading into clause (1) or the Explanation the words not specifically mentioned there. Reliance was placed on S.P. Gupta and others v. President of India and others (AIR 1982 SC 149). He further contended that in view of the clear language of clause (1) and the Explanation the Chief Minister had unfettered powers to give advice for dissolution of the Provincial Assembly which was not subject to any clog other than those mentioned in the Explanation and he was not required to record reasons in support of his advice. He argued that it was mandatory for the Governor to dissolve the Assembly if so advised by the Chief Minister and the time frame of forty eight hours had been provided to make the advice effective and had no nexus with the purposes mentioned by the learned counsel for the petitioners. He quoted the following passage from the Book "Constitutional Law of India" by J.N. Pandey: - "In England it has been a uniform practice for more than a Century that the sovereign should not refuse a dissolution when advised by the Prime Minister. Even a Prime Minister who is defeated in a no-confidence motion can advise the King to dissolve the Parliament. In England the King has always accepted the advice of such a Prime Minister. The recent precedent in Britain is the resignation of the former Prime Minister James Callaghan.
He was defeated in a no- confidence motion. The King dissolved the Parliament on his advice."
He also quoted a passage from the Book titled "Practice and Procedure of Parliament" by M.N. Kaul and S.L. Shakdher:- A question has been raised whether a Prime Minister who has lost confidence of the party in power or who is in danger of losing such confidence should advise the President for a dissolution of Lok Sabha and whether the President is within his constitutional right to reject .Such advice. No definite answers have been provided to these questions and there are no precedents to rely upon. However, one thing is clear; A Prime Minister who has not resigned or who has not been dismissed bv the President can always give such advice irrespective of the fact whether he has lost the confidence of his party or not." (underlining is ours)
He further contended that being the leader of the House it was for the Chief Minister to determine the timing of the advice and the decision being political he was not required to record reasons for his advice. It was next contended that notice of a resolution for a vote of no-confidence may be oral or written but in both the cases it must be supported by twenty percentum of the total membership of the Provincial Assembly and given on the floor of the Assembly and if the Assembly was not in session the notice may be given to the Secretary of the Provincial Assembly in his office located within the precincts of the Assembly Secretariat in accordance with the rules framed under Article 67 read with Article 127 of the Constitution. It was lastly contended that the Constitution of many countries including the United Kingdom, Ganada, Germany, Japan and India permitted a Prime Minister to advise dissolution of the Assembly even after he had lost the confidence of the House and the House had passed a vote of no- confidence against him.
17. Chaudhry Aitezaz Ahsan, learned counsel for the Province of North West Frontier in Writ Petition No.407/1993, contended that clause (1) of Article 112 was plenary and did not prescribe any conditions except those mentioned in the Explanation and the plenary right to tender advice for dissolution was recognised throughout the world and for this very reason in the United Kingdom and Japan advice for dissolution can be tendered even by that Prime Minister against whom a vote of no-confidence had been passed. He further contended that the decision to tender advice for dissolution was entirely a subjective decision of the Chief Minister because the MPAs by electing him as their leader vest in him the right to advise dissolution and that the presumption of regularity was on the side of Mr. Mir Afzal Khan (Chief Minister) and the petitioners had failed to demonstrate that he had lost majority at any stage. He further contended that as envisaged by the Explanation read with Article 136 of the Constitution notice of a resolution for a vote of no-confidence must be given in the Assembly namely on the floor of the House by twenty percentum of the total membership of the Provincial Assembly and the expression 'in the Assembly1 which had been used many times in Part IV of the Constitution which included Article 112, means the corporate politic body of the MPAs which sits in the Assembly when it is in session, therefore, it does not include the Assembly Secretariat and certainly not the residences of the functionaries of the Assembly Secretariat and if the Assembly is not in session then session for the purpose has to be requisitioned. About the interpretation of the Constitution in general and clause (1) in particular he contended that likes and dislikes cannot be read into it, terms used in it more than once should be give harmonious and consistent meanings, any word which has a simple grammatical and dictionary meaning should be given that meaning and that interpretation should be chosen which avoids any conflict with the people and recognises the sovereignty of the people. Reliance was placed on PLD 1963 SC 137 and PLD 1967 Lahore 227.
18. Mr. Abdul Hafiz Pirzada, learned counsel for the Chief Minister and the Governor, N.W.F.P, contended that in view of its significance and clear language clause (1) of Article 112 of the Constitution must be interpreted strictly and if in the opinion of the learned counsel for the petitioners it was in conflict with the Objectives Pesolution embodied in Article 2-A of the Constitution they should approach the legislature for its amendment in accordance with the prescribed procedure. Reliance was placed on PLD 1992 S.C. 595. About the time frame of forty eight hours he stated that it had been provided in clause (1) to tie up loose ends i.e, passage of bills etc.
19. After giving the contentions raised by the learned counsel for the parties our anxious consideration we have come to the conclusion that in view of its clear and unambiguous language and plain meanings which render complete sense clause (1) of Article 112 and the Explanation thereto must be interpreted strictly in accordance with the well recognised principles of interpretation and there is no scope for the liberal or the progressive interpretation. The sensitive nature of the dissolution and its political repercussions also demand that those words should not be read into it which are not there. It is nowhere mentioned in this clause and the Explanation as contended by the learned counsel for the writ petitioners that the Chief Minister should record reasons that prompt him to tender the advice, the Governor instead of dissolving the Assembly forthwith on receipt of the advice should hold an inquiry about the existence of notice of a resolution for a vote of no-confidence against the advising Chief Minister or to require him to reconsider the advice or place it before the Cabinet or ask him to obtain a vote of confidence from the Provincial Assembly, a Chief Minister under the threat of a vote of no-confidence was disqualified to tender advice and notice of a resolution for a vote of no-confidence can be given outside the Assembly. We have not found any such thing in the Constitution to read these immense details and alien expressions in clause (1) and the Explanation and if we read them on the pretence of progressive interpretation we would not only undermine the wisdom of the legislature but would also arrogate to ourselves the power of Constitution making which is not permissible. In this context it will be pertinent to reproduce hereunder the following excerpt from the judgment of the Lahore High Court reported as A.M. Khan Laghan v. Government of Pakistan (PLD 1967 Lahore 227).
"It is but a corollary to general rule of literal construction that nothing is to be added to or to be taken from a Statute, unless there are similar adequate grounds to justify the inference that the Legislature intended something which it omitted to express. It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity, it is a wrong thing to do. We are not entitled to read words into an Act of Parliament unless clear reasons for it is to be found within the four corners of the Act itself." (Cf. Maxwell on Interpretation of Statutes, Eleventh Edition, p.12) "where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature." (Craies on Statute Law, Sixth Edition, p.66). "Casus omissus not to be created or supplied."
A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made."
(ibid p.70)."
It will be advantageous to reproduce hereunder the observations made in Pakistan Textile Mill Owner's Association. Karachi and Two Others v.
Administrator of Karachi and Two Others (PLD 1963 S.C. 137).
"We see no reason to depart from the general rule that words used in a statute must first be given their ordinary and natural meaning. It is only when such an ordinary meaning does not make sense that resort can be made to discovering other appropriate meanings." (underlining is ours).
Reference may also be made to S.P.Gupta and others v. President of India and others (A.I.R. 1982 SC 149) wherein it was held that where the language of a Statute is clear and unambiguous, there is no room for the application either of the doctrine of casus omissus or of pressing into service external aid for in such a case the words used by the Constitution or the Statute speak for themselves and it is not the intention of the Court to add words or expression merely to suit what the Courts think is the supposed intention of the legislature.
We are convinced that If the contentions of the learned counsel for the petitioners are accepted and the so-called progressive approach is adopted clause (1) will be totally destroyed and rendered nugatory and dissolution of the Provincial Assembly on the advice of the Chief Minister will be wiped out of existence.
The power of the Chief Minister to advise dissolution of the Provincial Assembly is not entirely unfettered because a Chief Minister against whom there exists notice of a resolution for a vote of no-confidence or against whom a vote of no-confidence has been passed cannot advise dissolution.
These fetters are not trivial especially when we find that in the United Kingdom and Japan even that Prime Minister can advise dissolution against whom a vote of no-confidence has been passed. Be that as it may, the Legislature in its wisdom has not deemed it necessary to put more fetters on the power of the Chief Minister to advise dissolution, therefore, we cannot structure the discretion. The authority cited by Mr.K.M.A, Samdani is distinguishable as it relates to powers conferred by the subordinate Legislation and not by the Constitution.
The contention in regard to the recording of reasons for the advice has also not impressed us and the observations made in Muhammad Anwar Durrani v. Province of Baluchistan (PLD 1989 Quetta 25) that reasons in support Of advice would naturally promote healthy democratic conventions being obiter dicta do not have a binding effect. Dissolution of Provincial Assembly on the advice of the Chief Minister is a part of the democratic process recognised in Parliamentary democracy and the Chief Minister being the leader of the majority in the House has a vested right to advise dissolution and determine its timing on political grounds, therefore, it is not necessary for him to give reasons for the advice. Recording of reasons is necessary only in case of dissolution of Provincial Assembly by the Governor in his discretion under clause (2) of Article 112 which stands on a different footing and has a different parameter. Needless to mention that both arc altogether different. It will be beneficial to quote the following passage from the Book "The History and Practice of Dissolution of Parliament" by B. S. MARKESINIS:- "Mosl authors, both in England and on the Continent, would nowadays agree that the Government's discretion to dissolve is extremely wide and not limited to the basic reason Sir William Anson suggests. Therefore, it is no longer necessary to list the proper reasons for a dissolution." (underlining is ours).
The role of the Governor in case of dissolution of the Provincial Assembly in his discretion hardly needs any emphasis but in case of dissolution on the advice of the Chief Minister his role is limited and benign. The expression "shall" used in clause (1) leaves no room for doubt that he is commanded by the Constitution to dissolve the Provincial Assembly forthwith if advised by the Chief Minister. Another factor which curtails his role is that the advice has the germs of an order as it entails dissolution after the expiry of forty eight hours. The object of the time frame provided in clause (1) is to make the advice effective in the event of inaction on the part of the Governor and to wind up important pending matters like passage of bills and not to enable the Governor to dissect the advice and thrust his will on the Chief Minister because in view of the time frame provided in clause (1) such activities would be an exercise in futility. Article 112 is an independent clause while Article 105 is a subject clause to the other provisions of the Constitution including Article 112(1), the over-riding clause and, therefore, Article 105 providing for reconsideration of the advice by the Chief Minister does not control the operation of Article 112(1) of the Constitution. Even otherwise the desired role of the Governor seems meaningless because an advice returned for reconsideration can be resubmitted without much loss o time and under Article 105(1) the Governor is bound to act on it. The Constitution does not conceive a racing match between the notice-giver and the advising Chief Minister and if the notice is given in the Assembly as envisaged by the Constitution and not in a calandestine manner there will be no need for the Governor to hold an inquiry as he will be informed of the notice by the Provincial Secretariat or the Assembly Secretariat or he will come to know of it himself through the electronic and the press media.
Under Article 130(5) of the Constitution Governor has, no doubt, the power to require the Chief Minister to obtain a vote of confidence from the Assembly but if under the given circumstances the Chief Minister is asked to obtain a vote of confidence a session of the Provincial Assembly shall have to be summoned which is indeed a time consuming exercise and it is a matter of common knowledge that such a session is ordinarily summoned when the Governor has made up his mind to ask the Chief Minister which is, however, not the relevant factor in the case. The Chief Minister cannot also be asked to submit the advice for consideration to the Cabinet as provided in Article 131(c) because it deals with day to day functions of the Chief Minister and the Ministers and proposals for legislation and has no connection whatsoever with the powers of the Chief Minister vis-a-vis the dissolution of the Provincial Assembly. Article 130(1) provides for a Cabinet of Ministers with a Chief Minister at its head, to aid and advise the Governor in the exercise of his functions and Article 105(1) provides for the performance of functions by the Governor on the advice of the Cabinet or the Chief Minister. Article 112 (1) reserves the function of the dissolution of Assembly by the Governor only on the advice of the Chief Minister with no concern of the Cabinet.
As mentioned earlier the words 'notice of a resolution for a vote of no- confidence has been given' appearing in the Explanation were substituted for the words 'resolution for a vote of no-confidence has been moved' by the Constitution (Eighth Amendment) Act 1985. This Amendment is closely linked with the Amendment made in Article 136 of the Constitution by P.O.No.14 of 1985, which deals with vote of no confidence against the Chief Minister, and by which the process of vote of no confidence is initiated. The expression 'in the Assembly', which has been used in many Articles in part IV of the Constitution of which Article 112 forms a part, undoubtedly, means on the floor of the House but as there is no express or implied bar on giving the notice of a resolution for a vote of no-confidence during the period when the Assembly is not in session wide and extended meanings are to be given to this expression so as to include in it the Assembly Secretariat which is an adjunct of the Assembly. In this context we may reproduce hereunder an excerpt from the speech of the then Federal Minister for law and Parliamentary Affairs Mr. Iqbal Ahmad Khan delivered in the National Assembly on the Constitution 8th (Amendment) Bill, 1985:- r. dissolvesLff dK't/A tfy (jT no-confidence f\Ji& L- 10} - S {{Urdu text }} The Explanation is silent about the nature of the notice of a resolution for a vote of no-confidence, therefore, the notice may be oral or written but if it is oral it must be given on the floor of the House so that the Speaker is in a position to ascertain that it has been given by twenty percentum of the total membership of the Provincial Assembly and if it is written it must contain the names and signatures of twenty percentum of the total membership of the Provincial Assembly as required under Article 136 of the Constitution and may be given on the floor of the House to the Speaker or in the Assembly Secretariat to the Secretary of the Provincial Assembly.
As regards the contention of the learned counsel for the petitioners about the conflict between clause (1) of Article 112 and Article 2-A of the Constitution it will be enough to say that it has no substance in view of the observations made in Hakim Khan v. Government of Pakistan (PLD 1992 SC 595) that if any Article of the Constitution is in conflict with Article 2-A the appropriate procedure is to have it amended in accordance with the prescribed provisions for the purpose. In the said case the President's reprieve powers vis-a-vis sentences passed by Courts, Tribunal or Authority were sought to be examined on the touchstone of the Objectives Resolution since made a substantive part of the Constitution under Article 2-A on the ground that the said power vesting in the President transgressed the limits prescribed by Allah Almighty. In the context it was canvassed that the Qisas punishment in murder and hurt cases could not at all be pardoned by the President in the exercise of his reprieve powers provided under Article 45 as being repugnant to the Injunctions of Quran and Sunnah, also thereby violative of the ground norm of the Constitution in the Objectives Resolution, the Court did not accept the argument and held that it was not the job of the Court to examine one provision of the Constitution on the touchstone of another provision of the Constitution and observed that such object could only be achieved through the amendment of the Constitution by the Parliament. The argument that the Chief Minister, a public office holder was to perform his duties as a trustee and he was supposed to consult his Cabinet and party before tendering advice for the dissolution of Assembly and was not to act on his own in advising the dissolution of the Provincial Assembly and as such his solo act of advising the dissolution of Assembly was to amount to betrayal of trust and that the provisions of Article 112(1) vesting power in the Chief Minister to act on his own without consultation of his Cabinet and the party was violation of the principles of trust and this court shall thus sit in judgment upon his advice to ascertain if the Chief Minister has not betrayed the trust. The argument, though rosy, cannot be accepted since one independent Article of the Constitution cannot be made subservient to another provision, herein to Article 2-A i.e. The Objectives Resolution.
In this background the true meaning and import of clause (1) of Article 112 of the Constitution and the Explanation thereto is that the Governor is bound to dissolve the Provincial Assembly if so advised by the Chief Minister and in case of inaction on his part the Provincial Assembly shall stand dissolved automatically after the expiry of forty eight hours and the constraints are that the Chief Minister who tenders the advice shall not be the one against whom an oral notice of a resolution for a vote of no-confidence has been given by twenty percentum of the total membership of the Provincial Assembly on the floor of the House or a written notice of the resolution for a vote of no-confidence has been given by twenty percentum of the total membership of the Provincial Assembly to the Speaker on the floor of the House or to the Secretary of the Provincial Assembly in the Assembly Secretariat or against whom a vote of no-confidence has been passed.
20. We will now evaluate notices of a resolution for a vote of no- confidence against the Chief Minister, namely, Mr. Mir Afzal Khan as set up by the petitioners. They alleged both oral and written notice of a resolution of vote of no-confidence against the Chief Minister given prior in time to the advice for dissolution of Assembly tendered by him on 30.5.1993 at 7 A.M.
However, before adverting to the notices we may point out that although the Provincial Assembly of North West Frontier Province Procedure and Conduct of Business Rules, 1988 were framed under Article 67 read with Article 127 of the Constitution after coming into force of the Constitution (Eighth Amendment) Act, 1985 whereby the words 'notice of a resolution for a vote of no-confidence has been given' used in the Explanation to clause (1) of Article 112 of the Constitution were substituted for the words 'resolution for a vote of no-confidence has been moved', yet no rule was framed to meet the new situation with the result that there exists no rule in the said rules in regard to the notice mentioned in the Explanation to clause (1) of Article 112. Rule 18 of the said Rules mentions a notice, however, not contemplated by the Explanation because the rule relates to the resolution for a vote of no-confidence against the Chief Minister Rule 26 pertains to notices under the Rules and not under the Constitution. It was contended by the learned counsel for the petitioners in Writ Petition No.395/1993 that in the absence of a rule prescribing procedure -for giving the notice contemplated by the Explanation the procedure adopted by the petitioners Javed Akbar Khan and his companion was proper procedure as it represented the procedure which a reasonable man would have adopted under the circumstances. The contention has no substance because as pointed out earlier if the notice within the meanings of the Explanation is in writing it must be given either on the floor of the House to the Speaker or in the Assembly Secretariat to the Secretary of the Provincial Assembly. The meanings of the Assembly Secretariat cannot be extended so as to include the residences of the Secretary and the Additional Secretary of the Provincial Assembly because in that case every employee of the Assembly Secretariat will be well within his right to claim that his residence forms part of the Assembly Secretariat with the result that the elements opposed to the dissolution of the Assembly for one reason or the other will have an unlimited field to operate with a view to sabotaging dissolution.
This will indeed make the dissolution virtually impossible. N.W.F.P. Provincial Assembly Rules have been found deficient in many respects. The rules, no doubt, made a provision for ascertainment of a member to command the confidence of the majority to be followed by his appointment as Chief Minister in the session of the Assembly summoned for the purpose as provided in Article 130 (2A) but it did not provide for obtaining a vote of confidence from the Provincial Assembly by the Chief Minister within a period of sixty days as provided in clause (3) of Article 130. It has also not provided for the requirement by the Governor of the Chief Minister to obtain a vote of confidence from the Assembly for his satisfaction that the Chief Minister does not command the majority of the members of the Provincial Assembly as provided in Article 130(5). Rule 18 of the NWFP Provincial Assembly Rules pertains to vote of no-confidence against the Chief Minister. Clause (b) of sub-rule (1) of Rule 18 speaks of a written notice of the motion to be left with the Secretary but it does not cover the notice contemplated by the Explanation to clause (1) of Article 112 of the Constitution.
The third proviso to sub-rule (2) of Rule 18 is a reproduction of clause (6) of Article 136 of unamended 1973 Constitution, while the said clause has since been deleted but the Provincial Assembly Rules have retained the said clause in the proviso which itself is a contravention of the Constitution.
The correct position is that there is no time frame and also no bar on moving successive resolutions of vote of no- confidence as against a Chief Minister in the event of failure of one resolution. Again in sub-rule (2) of Rule 18 it is provided that leave of the Assembly shall be refused if less than eighteen members rise in their seats in favour of the motion. The Constitution has provided in Article 136 that not less than twenty percentum of the total membership of the Provincial Assembly are required to move a resolution for a vote of no-confidence and since the total membership of the Provincial Assembly is 83 the requisite number of members for moving a vote of no-confidence shall be 17 and not 18. The above anomalies are pointed out with an object and purpose that the Assembly proceeds to suitably amend the Rules, in exercise of its powers under Article 67 read with Article 127 of the Constitution. In the context it is also pointed out that in the Explanation to clause (1) of Article 112 there has been made a reference to the continuing in office of the Chief Minister by virtue of clause (2) of Article 134 or a Provincial Minister performing the functions of Chief Minister under clause (1) and clause (3) of Article 135 although the said provisions have since been omitted altogether by P.O.No.14 of 1985 and at the time of Eighth Amendment Legislature should have omitted the above provisions from the Explanation to clause (1) of Article 112. In the said Explanation only words "notice of a resolution for a vote of no-confidence has been given" have been substituted followed by the old provisions to read "in the Provincial Assembly but has not been voted upon or against whom a resolution for a vote of no-confidence has been passed" while the correct position is that it is the resolution which is voted upon and not the notice and the same also tends to show that perhaps notice of a resolution is to be given on the floor of the House in the Provincial Assembly which is followed to be voted upon. The said situation has, however, been clarified by the Law Minister in his speech that a notice of a resolution for a vote of no-confidence as contemplated by the Explanation is to be given in the Secretariat of the Provincial Assembly.
Coming to the alleged oral notice, the same does not seem proved as the allegation in respect thereof contained in paragraph No.3 (b) of Writ Petition No.395/1993 was denied by the Speaker in paragraph No.3(b) of his written statement filed on 10.6.1993. Even otherwise this notice has no value because as mentioned earlier an oral notice of a resolution for a vote of no-confidence must be given by twenty percentum of the total membership of the Provincial Assembly on the floor of the House.
The written notice set up by the petitioners is in fact non-existent as it was neither handed over to the Secretary or the Additional Secretary of the Provincial Assembly nor was left in the Assembly Secretariat. As a matter of fact the case of the petitioners is that in view of the admission of the Additional Secretary of the Provincial Assembly that petitioners Javed Akbar and Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of no-confidence and due to his refusal to receive the same the notice should be deemed to have been given. It is true that the Additional Secretary of the Provincial Assembly in his written statement filed in Writ Petition No.395/1993 on 10.6.1993 has admitted that petitioners Mr. Javed Akbar Khan and Mr. Hidayatullah Khan had come to his residence and wanted him to receive notice of a resolution for a vote of no-confidence against the Chief Minister and he had asked them to deliver it to the Secretary of the Provincial Assembly but the petitioners cannot draw any premium from it because as held earlier notice under the Explanation to clause (1) of Article 112 of the Constitution if written must be given on the floor of the House to the Speaker or to the Secretary of the Provincial Assembly in the Assembly Secretariat. Apart from this there are a few intriguing circumstances which go a long way to suggest that there is more to it than meet the eyes. The first circumstance is that only one notice signed by forty two members finds mention in Writ Petition No.395/1993 whereas there are two notices marked Annexure 'C' and Annexure 'D' attached with the petition, each bearing names and signatures of twenty one M.P.As. The second circumstance is that it is nowhere mentioned in the petition that the notice drawn up at the M.P.As Hostel and presented to the Additional Secretary at his residence and in his office was annexed with the petition as Annexure 'C' and Annexure 'D\ The third circumstance is that the notice Annexure 'D' is not only undated but is also not a notice within the meanings of the Explanation to clause (1) of Article 112 and is a motion of a vote of no-confidence under Article 136 of the Constitution. We have also taken judicial notice of the fact that one of the signatories to this notice Haji Sanaullah Khan was one of the eight Ministers who were inducted into the Cabinet on 29th May, 1993 and had also taken oath of office in the evening. It does not stand to reason that being a newly inducted Minister he had attended the meeting at the M.P.As. Hostel held at 10.00 P.M. On 29-5-1993 and had signed the notice/resolution. The obvious that flows is that the meeting was never held and the notice Annexure 'D' is spurious. The fourth circumstance is that when Mr. Javed Akbar Khan and Mr. Hidayatullah Khan reached the Assembly Secretariat they neither presented the notice to. The Secretary of the Provincial Assembly nor left it in his office. The fifth circumstance is that it appears from the conversation that had taken place between the Secretary of the Provincial Assembly, Mr. Javed Akbar Khan and Mr. Hidayatullah Khan at the entrance of the Assembly Secretariat that at that time the Speaker was present in his chamber but surprisingly they did not see him either to deliver the notice or to make a complaint that since 5.00 A.M. They were running from pillar to post to give notice of a resolution for a vote of no-confidence against the Chief Minister but the Secretary and the Additional Secretary of the Provincial Assembly were not receiving it on one pretext or the other. Another circumstance is that neither the petitioners informed the Additional Secretary at his residence that they had first attempted to deliver the notice to the Secretary at his residence nor the Additional Secretary reported that the petitioners made such a disclosure before him at his residence. Lastly, the Additional Secretary in his written statement has flatly denied that the petitioners had come to his office to deliver the notice to him. Besides, the petitioners are not ordinary persons as one of them is an Ex- Finance Minister and another an Ex-Advisor to the Chief Minister and as such it goes without saying that they are familiar with the modern techniques and devices like Fax and telephone etc and if the notice of a resolution for a vote of no- confidence had in fact been drawn up and there was urgency about its service it could have been conveniently communicated to the Governor, the Chief Minister, the Speaker and the Secretary of the Provincial Assembly by means of one of such devices. We are convinced that the story of notice is an afterthought inasmuch as it has not even been mentioned in the press statements of the writ petitioners appearing in the Newspapers.
21. Turning to the question of malafides we find that though the petitioners in all the three writ petitions have alleged almost identical malafides in fact the Speaker has alleged malafide in law also by describing the advice tendered by the Chief Minister as command performance. The grounds on which the petitioners have imputed malafides in law and in fact are as follows:-
(i) The advice was tendered by the Chief Minister at the behest of the President of Pakistan;
(ii) There was collusion between the Chief Minister and the Governor and the entire exercise was carried out at one table;
(iii) The advice was tendered by the Chief Minister with a view to destabilise the Federal Government which was restored together with the National Assembly on 26th May, 1993 pursuant to the judgment of the Supreme Court of Pakistan in the matter of Mian Mohammad Nawaz Sharif vs. The Federation of Pakistan;
(iv) The advice was motivated by the oblique design to preempt the move in regard to resolution for a vote of no-confidence and to stay in power; and
(v) The advice was tendered in the face of a persistent declaration by the Chief Minister that there was neither any justification to dissolve the Provincial Assembly nor the Provincial Assembly shall be dissolved."
22. The allegation attributing the advice to the command of the President of Pakistan has been based on the following conversation which according to the Speaker had taken place between him and the Chief Minister on the morning of 30th May, 1993 when he in response to a telephonic call from the Chief Minister had gone to Chief Minister's House alongwith the Secretary of the Provincial Assembly: - "What have you done?
Why have you sent it for a Six?"
(Speaker)
"What would I have done Habibullah Khan. The President was after me and finally today in the morning he rang me up and said "I have given it a lot of thought and have arrived at the conclusion that you should dissolve the Assembly immediately". As such I had no alternate opinion but to respect the wishes of the President."
(Chief Minister)
The alleged conversation was denied by the Chief Minister in his written statement which was duly supported by an affidavit. Apart from that the said conversation allegedly took place on the morning of 30th May, 1993 but the Speaker kept mum for thirteen days and divulged it for the first time in the Writ Petition filed by him on 12th June, 1993. So much so that he did not mention it in the written statement filed by him in Writ Petition No,395/1993 on 10th June, 1993. The Secretary of the Provincial Assembly in whose presence the alleged conversation had taken place has also not pressed into service an affidavit in support thereof. The allegation thus has neither been proved nor has any substance and for this very reason we are not inclined to advert to the contention raised by Mr. Abdul Hafiz Pirzada that such an allegation cannot be levelled without impleading the Federation of Pakistan as a party.
It was contended by Mr. Mohammad Akram Sheikh that the dissolution was the outcome of collusion between the Chief Minister and the Governor in that the former had drawn up the advice in consultation with the latter in the Governor House and the latter had dissolved the Assembly forthwith.
Elaborating his contention the learned counsel stated that according to his own saying the Chief Minister had personally delivered the advice in writing to the Governor on 30th May, 1993 at 7.00 A.M. And if he had drawn up the advice before proceeding to the Governor House then he would have not mentioned this fact in the typed endorsement made and signed by him on the advice that it was delivered by him to the Governor on 30th May, 1993 at 7.00 A.M. It was further contended that the lightning rapidity with which the Assembly was dissolved by the Governor without making an inquiry about the existence of notice of a resolution for a vote of no- confidcnce also pointed to collusion. Mr. Abdul Hafiz Pirzada on the other hand, awabazada Mohsin All Khan V. Govt of NWFP (Abdul Karim Khan Kundi, C J.) contended that the allegation of collusion was not available against the Governor as he was not a party to the initiation of the advice and the question of collusion did not arise after the advice had been tendered. The contention of Mr Abdul Hafiz Pirzada carries force as it has not been alleged in any of the petitions that the Governor had played some role in the initiation of the advice. Mere fact that the time of tendering of advice was typed in the endorsement is not sufficient to prove collusion because the possibility that the Chief Minister might have synchronised the timing cannot be ruled out altogether. In any case the advice was certainly not initiated by the Governor, therefore, it would have hardly made any difference even if the advice had been typed out in the Governor House. As regards the allegation of indecent haste concerning the order passed by the Governor it will suffice to say that the advice was tendered at 7.00 A.M.
Which fact has not been disputed by the petitioners, and the order of the dissolution of the Assembly was signed by the Governor at about 9 or 9.30 A.M. And in any event the Governor had no choice but to take the advice to its logical conclusion forthwith as pointed out earlier.
The allegations embodied in ground No.(iii) ante were denied by Mr. Mir Afzal Khan in most unequivocal words and a counter affidavit was also submitted. Apart from that the allegations are vague and there is no tangible proof on the record to substantiate them. It was contended by Mr. Mohammad Alcram Sheikh that Mr. Mir Afzal Khan in his written statement filed in Writ Petition No.407/1993 while giving reasons for the dissolution of the Provincial Assembly had levelled serious allegations against Mian Mohammad Nawaz Sharif which clearly point out that there is no love lost between them. We have already held that the advising Chief Minister is not obliged to give reasons for the advice and it is also well settled that the petitioners have to succeed on the strength of their own case, therefore, we are not inclined to examine those reasons. In Wapda v. Amjad Hidayat Butt and others (1986 SCMR 582) it was observed that malafide has to. Be specifically pleaded and legal proof has to be adduced to establish the same. No finding of malafides can be recorded merely on basis of surmises, assumption, assertion and bare allegations. In another instructive judgment of the Supreme Court reported as The Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151) it was held that malafides is one of the most difficult thing to prove and the onus is entirely upon the person alleging malafides to establish it because there is to start with a presumption of regularity with regard to all official acts and until that presumption is rebutted the action cannot be challenged merely upon a vague allegation of malafides.
The Provincial Assembly of NWFP consists of eighty three members. According to Notification NO/PA/NWFP/Legis-1/90/15403, dated 10th November, 1990 available on the record of Writ Petition No.395/1993, sixty five members were present on the day when Mr. Mir Afzal Khan was elected as the Chief Minister out of whom sixty one members, including twenty one members belonging to the Awami National Party and seven members belonging to the Jamat-e-Islami, had reposed confidence in him. In the absence of material on record this data does not provide a guide-line for working out the position of Mr. Mir Afzal Khan in the House at the time of the dissolution of the Provincial Assembly. However, one thing that stands out prominently is that right from his election as the Chief Minister upto the dissolution of the Provincial Assembly no attempt was made by any one to dislodge him. Mr. Mohsin Ali Khan, petitioner herein, was removed from the Cabinet fourteen days before the dissolution of the National Assembly and the Awami National Party had quit the Government on 20.4.1993 but even then a vote of no-confidence was not moved against him. The Speaker has also in his petition in para No.4 stated that the Provincial Assembly had been functioning smoothly till 29th of May, 1993. Under these circumstances, the allegation that he was under a constant threat of a vote of no-confidence seems prepostrous. The petitioners have annexed with the petition some Newspapers clippings attributing a statement to him that if there is a move for a vote of no-confidence against him he will face it boldly. These Newspaper clippings cannot substantiate the allegations of the petitioners because another Newspaper clipping from daily 'Nawai Waqat' dated 29.5.1993 available on record contains a categorical statement issued by the petitioner Mr .Farid Khan Toofan that a vote of no- confidence shall not be moved against the Chief Minister. The allegation that Mr. Mir Afzal Khan had dissolved the Provincial Assembly in order to perpetuate his rule is equally prepostrous because by dissolving the Provincial Assembly he has exposed himself to the political sovereign namely the electorate and the possibility that he may not be returned cannot be ruled out and besides he had no control over his appointment as a Care- taker Chief Minister which is made by the Governor with the approval of the President.
It was alleged in para No.5 of Writ Petition No.407/1993 that Mr. Mir Afzal Khan had repeatedly stated in his statements published in the newspapers that there were no grounds whatsoever for the dissolution of the Provincial Assembly. Mr. Mir Afzal Khan in paragraph No.5 of his written statement admitted having made such statements but qualified his admission with an explanation that by those statements he meant that there were no grounds for dissolution of the Provincial Assembly by the Governor. The written statement is supported by an affidavit, therefore, there is no force in this ground. Besides, such like statements are a concomitant of the democratic process and party politics and are made by the political leaders off and on.
22. The point next to be considered relates to the immunity from impleadment as a party to these proceedings claimed by the Governor NWFP, and the Care-taker Chief Minister Mr. Mir Afzal Khan under clause (1) of Article 248 of the Constitution which reads as follows:- "248.(1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province."
There is no need to discuss this point threadbare as it can be conveniently settled if we test it on the touchstone of the following law laid down by the Supreme Court in Amanullah Khan v. The Fedefal Govt, of Pakistan (PLD 1990 SC 1092):- "56. If malafide of fact was pleaded by a party then it had to decide for itself whether on the material with it, the Minister had to be impleaded inspite of the protecting provisions of the Constitution; because if his act does not fall within the purview of the provision so interpreted, then he can be impleaded as a party and all the objections to such impleadment dealt within the proceedings. In the absence of the party no finding with regard to malafide of fact (as distinguished from malafide of law) can be recorded, should be recorded and should have been recorded."
The petitioners have pleaded malafides of fact against Mr .Mir Afeal Khan, therefore, he is not entitled to the immunity envisaged by Article 248 of the Constitution. The case of the Governor is, however, distinguishable inasmuch as no allegation of malafide of fact or in law has been squarely made against him. He is thus entitled to the benefit extended by Article 248 of the Constitution and it is hereby ordered that his name be struck off from the array of the respondents in Writ Petitions No.395/1993 and 407/1993.
23. Now a few words about the three preliminary objections raised by the contesting respondents of which two pertain to the maintainability of the petitions and the third to the improvement made by the Speaker in his Writ Petition on the written statement earlier filed by Him in Writ Petition No.395/1993. The first objection that highly disputed and contentious questions of fact have been raised in the petitions is misconceived as the allegation about the giving of the notice contemplated by the Explanation to clause (1) of Article 112 of the Constitution did not necessitate detailed inquiry, rather, it was essentially based on the alleged admission of the Additional Secretary of the Provincial Assembly. The second objection that the advice in question was not justiciable under Article 105 (2) of the Constitution is equally misconceived because we are required to examine the constitutional validity of the advice which led to the dissolution of the Provincial Assembly and the ensuing order passed by the Governor and to determine if the same suffer from malafides and not to dig out whether any and if so what advice was tendered to the Governor by the Chief Minister. The third objection, however, has substance because in his written statement filed in Writ Petition No.395/1993 the Speaker was on the defensive and had made an observation in passing without spelling out the details that the dissolution was malafide but in the writ petition filed by him he launched an outright offensive against the Chief Minister and the Governor by attributing the dissolution to command performance and collusion.
24. Before parting with the petitions we may point out that in Writ Petition No.395 of 1993 it was alleged that the Provisions of Article 133 of the Constitution were wrongly invoked and no order was passed under clause (3) of Article 105 of the Constitution but at the hearing this point was agitated halfheartedly and rightly so because there is enough material on record to show that Mr .Mir Afzal Khan was later on appointed as the Care-Taker Chief Minister in accordance with the prescribed procedure and had taken oath as such on 30th May, 1993. In the context reference is made to Article 130(8) of the Constitution to be read with Article 133 providing for the continuing in office of the Chief Minister or any other Minister as a temporary arrangement during any period the Provincial Assembly stands dissolved while the latter part of clause (8) of Article 130 read with clause (3) of Article 105 also provides for the appointment of Chief Minister or Minister in the care-taker Cabinet by the Governor with the previous approval of the President during the period the Provincial Assembly stands dissolved.
Hereinabove are the reasons for our short order dated 14.7.1993 whereby we had dismissed the three writ petitions with no order as to costs.