Pir SABIR SHAH vs FEDERATION OF PAKISTAN and others

' AJMAL MIAN, J.---This is a direct petition under Article 17 read with Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, filed by the petitioner who was, at the relevant time, Chief Minister, N.-W.F.P., challenging the Proclamation issued by the President of Pakistan on 25-2-1994 under Article 234 of the Constitution, hereinafter referred to as the Proclamation, which reads as follows:--- "Whereas I, Farooq Ahmed Khan Leghari, President of the Islamic Republic of Pakistan, on receipt of reports from the Governor, N.-W.F.P., am satisfied that the situation has arisen in which the Government of the North-West Frontier Province cannot be carried on in accordance with the provisions of the Constitution.

2 Now, therefore, in exercise of the powers conferred by Article 234 of the Constitution, I hereby

(a) direct the Governor of the North-West Frontier Province to assume on my behalf the functions of the Government of that Province;

(b) declare that all powers of the Provincial Assembly shall be exercisable by, or under the authority of Majlis-e-Shoora (Parliament);

(c) make the following incidental and consequential provisions which appear to be necessary or desirable for giving effect to the objects of this Proclamation--

(i) the Chief Minister and Provincial Ministers of that Province shall forthwith cease to hold office;

(ii) In the exercise of the functions which the Governor has been directed to assume hereinbefore stated, the Governor shall act to such extent and subject to such conditions as I shall, from time to time, deem fit to give or impose.

' This Order shall, unless revoked earlier, remain in force for a period of two months.

(Sd.)

' FAROOQ AHMED KHAN LEGHARI,PRESIDENT."

' The petitioner through this petition has prayed for the following reliefs:-- "(a) Declare that the proclamation purportedly issued under Article 234 of the Constitution is null and void and of no legal effect.

(b) Declare that any actions taken either by or on the report or advice of the respondent No,4 is contrary to law and of no legal effect and restrain him from taking any actions under colour of law in purported exercise of the functions of the Governor of the Frontier Province.

(c) Restrain the Federal Government and/or the President from interfering with or meddling in the affairs of the Government of the Frontier Province.

(d) Declare that the Government headed by the petitioner is the duly constituted Government of the Frontier Province and is authorized to exercise all powers and discharge all responsibilities accordingly.

(e) Restrain the respondents or any of them acting either directly or indirectly from interfering with the functioning of the Government of the Frontier Province.

(f) Such other relief as may be deemed appropriate by this Honourable Court.

(g) Costs of the case."

2. The Proclamation was assailed on the basis of averments that the elected representatives of the people by their free vote elected the petitioner as the Leader of the House commanding majority but as a result of conspiracy hatched by the Pakistan People's Party, a mala fide attempt was made to dissolve the petitioner's Government in violation of the Constitution. It was further averred that the Province was governed peacefully and the only problem which existed was due to the illegal attempt on the part of the Pakistan People's Party Government at the Centre, which caused defection in violation of law. It was also averred that the Proclamation purported to have been issued on receipt of a report from the Governor of Frontier Province, who was not Constitutionally appointed Governor in terms of Articles 101 to 104 as the Governor was doubly disqualified. It was also pleaded that under Article 234, the President had limited power for temporary assumption but it was not open to the President to dismiss the Chief Minister and the Ministers or to terminate their offices. It was further averred that the effect of the Proclamation was to deprive the elected representatives of the people and indeed the Provinces as a whole of their inalienable, basic and fundamental right to govern themselves and through their elected representatives in clear violation of Article 17 and other applicable Articles of the Constitution. It was also averred that the action has been taken solely in order to have the Pakistan People's Party to topple the duly constituted Government of the N.-W.F.P., which action was linked with the action of the two defectors, who have been won over by the Pakistan People's Party and with whose aid and assistance, an attempt was made to overthrow the Government of the Province and in respect of which the proceedings were then pending in the Court. The other legal pleas were also raised.

3. In the above petition, originally the petitioner had arrayed five respondents i,e, the Federation of Pakistan, the President of Pakistan, the Government of N.-W.F.P., the Governor of N.-W.F.P. And the Speaker, N.-W.F.P. Assembly respectively. Since certain allegations were made against the Pakistan People's Party and the Parliamentary Party of the Pakistan People's Party in the N.-W.F.P. And an objection was also raised by respondents Nos. 1 and 2, Pakistan People's Party and the Leader of the Parliamentary Party of Opposition were impleaded as respondents Nos. 6 and 7 respectively.

4. Respondents Nos. 1 and 2 had originally filed preliminary objections but after the first hearing, all the respondents (except the Speaker) filed proper written statements. Respondents Nos. 1 and 2 in their written submissions inter alia pleaded that the validity of the Proclamation could not be called in question in any Court in view of Article 236 of the Constitution. The Constitution Petition filed under Article 17 of the Constitution read with Article 184(3) was totally misconceived, the President of Pakistan and the Governor of N.-W.F.P. Had been impleaded as respondents contrary to the provisions of Article 248 of the Constitution. It was denied that an illegal attempt was made by the Pakistan People's Party Government in the Centre to cause defection. It was pleaded that the petitioner, who belongs to Pakistan Muslim League (N), had only 16 M.PAs. And the other M.P.As.

Either belonged to A.N.R. Or they were independent. It was further pleaded that the petitioner Government was weak Government inasmuch seven Ministers and Advisors had tendered their resignations and that the petitioner Government had lost the majority and control over the Province. It was also pleaded that the petitioner as the Chief Minister despite of repealed requests made by the Governor could not maintain peaceful environment conducive to the running of the affairs of the Government. It was denied that the appointment of the Governor was not valid. It was also pleaded that the petitioner was estopped by his conduct to assail the validity inasmuch as he was elected Chief Minister in a session of the Provincial Assembly summoned by the said Governor and that the petitioner dealt with him as such subsequently and recognized him. It was also denied that the report of the Governor was ex facie nullity in law. As regards defection of two M.PAs., it was stated that the matter was sub judice.

' The other respondents, except the Speaker, in their written statements also raised the above preliminary objections and denied the various allegations and the legal grounds. To the above- written statements, the petitioner filed a rejoinder with certain documents.

5. It may be stated that during the arguments on 10-4-1994, it was pointed out to the learned counsel for the petitioner that though he was urging mala fide on the part of the President and the Governor but no allegations were made in the memo. Of the petition. Thereupon, the learned counsel for the petitioner requested for filing of an amended petition, which request was granted with the consent of the learned counsel for the respondents. After that, an amended petition was filed, in which though the allegation of mala fide was made against the Governor, but no such allegation was made in respect of the President. Respondent No, 4 i,e, the Governor filed an amended reply, wherein inter alia he denied the allegation of mala fide.

6. The petition was argued on behalf of the petitioner by Mr. Khalid Anwar, whereas the main arguments were advanced by Mr. Sharifuddin Pirzada on behalf of respondents Nos. 1 and 2, which arguments were adopted by Messrs Shahzad Jahangir, Abid Hassan Minto and Muhammad Afzal Siddiqui, the learned counsel for the other respondents.

7. In my view, the above case inter alia involves the following main questions:--

(i) Whether the jurisdiction of this Court is barred in view of Article 236 (2) of the Constitution?

(ii) Whether the Governor's appointment can be assailed in this petition?

(iii) Whether the Proclamation suffers from any legal infirmity as to warrant interference by this Court? And

(iv) Whether the Governor on 23-2-1994 under Article 130 (5) of the Constitution could require the petitioner to obtain a vote of confidence?

8. Adverting to the above first point, it may be pertinent to observe that Mr. Sharifuddin Pirzada in furtherance of his contention that this Court has no jurisdiction to examine the validity of the proclamation, has referred to clause (2) of Article 236 of the Constitution. He has also invited our attention to the factum that Articles 234 and 236 are contained in Part X of the Constitution, which relates to emergency provisions. It may be pertinent to quote above Article 236, which reads as follows:-- "236.--(1) A Proclamation issued under this Part may be varied or revoked by a subsequent Proclamation.

(2) The validity of any proclamation issued or Order made under this Part shall not be called in question in any Court."

' It may be observed that clause (1) of the above Article provides that a Proclamation can be varied or be revoked subsequently. It may further be noticed that clause (2) thereof lays down that the validity of the Proclamation issued or Order made under this Part shall not be called in question in any Court.

9. In furtherance of his above submission, Mr. Sharifuddin Pirzada has pointed out that in India, the Indian Supreme Court has made a distinction between a bar of jurisdiction provided by the original Constitution of India and a bar subsequently incorporated by amendment of the Constitution.

According to him, the Indian Supreme Court declines to interfere with in a matter covered by a Constitutional provision of the above first category but interference with the above latter category.

He has also pointed out that the Indian Supreme Court has evolved the theory that the Parliament cannot amend the basic structure of the original Constitution. In this regard he has referred to the case of L.C. Golak Nath and others v. State of Punjab and another (AIR 1967 SC 1643), the case of His Holiness Kesavananda Bharati Sripadagalvaru and others v. State of Kerala and another (AIR 1973 SC 1461) and the case of Minerva Mills Ltd. And others v. Union of India and others (AIR 1980 SC 1789).

9-A. He has also invited our attention to the fact that the above theory of basic structure of the Constitution has not been accepted by this Court. He has referred to the case of Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wall Khan, M.N.A., former President of defunct-National Awami Party (PLD 1976 SC 57), the case of Federation of Pakistan through the Secretary, Ministry of Finance, Government of Pakistan, Islamabad etc. v.

United Sugar Mills Ltd., Karachi (PLD 1977 SC 397) and the case of Fauji Foundation and another v.

Shamimur Rehman (PLD 1983 SC 457).

10. The distinction made by the Indian Supreme Court between a bar of the jurisdiction provided by the original Constitution of India and a bar of jurisdiction subsequently incorporated by amending the Constitution highlighted by Mr. Sharifuddin Pirzada has not been pressed into service by the Superior Courts in Pakistan. It is true that this Court has not declared any amendment in the Constitution as ultra vires on the ground that it was violative of the basic structure of the Constitution. In other words, in Pakistan the above theory has not been accepted.

11. Adverting to the bar contained in clause (2) of Article 236 of the Constitution, it may be observed that Mr. Sharifuddin Pirzada has candidly pointed out that this Court has interfered with three categories of cases notwithstanding the bar of jurisdiction contained in the relevant provisions of the Constitution. In this behalf, he has referred to following provisions of the Constitution with some of the relevant decisions thereon:--

(I) Category A.--Article 58 (2) of the Constitution.

(i) Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166.

(ii) Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan through Secretary, Ministry of Law and Parliamentary Affairs, Islamabad and another PLD 1992 SC 646; and

(iii) Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1994 SC 473).

' It may be stated that this Court did not interfere in the case mentioned at para. I (ii).

(II) Category B.--Article 270-A of the Constitution.

(i) The State v. Zia-ur-Rahman and others PLD 1973 SC 49:

(ii) The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saecd Ahmad Khan and others PLD 1974 SC 151;

(iii) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26); and

(iv) Sindh Quality Control Board of Drug and another v. M/s. Pioneer Laboratories, Karachi and 6 others (1973 SCMR 1177).

(III) Category C.--Article 248 of the Constitution relating to the personal immunity of the President, Prime Minister, Governors etc.

(i) Ch. Zahur Ilahi, M.NA. v. Mr. Zulfikar Ali Bhutto and 2 others (PLD 1975 SC 383);

(ii) Amanullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092).

12. However, directly on Article 236, Mr. Sharifuddin Pirzada has referred to the following cases:--

(i) Malik Muhammad Suleman, M.NA. v. Islamic Republic of Pakistan through Secretaries of the Ministry of Home Affairs, Ministry of Law and Parliamentary Affairs, Islamabad and 2 others (PLD 1976 Lah. 1250) ' in which a Division Bench of the Lahore High Court while dealing with a Proclamation of Emergency issued under Article 232 of the Constitution held that it has now been specifically provided in clause

(2) of Article 236 that the validity of any proclamation issued or order made under Part X, which relates to the emergency provisions, shall not be called in question in any Court.

(ii) Niaz Ahmed Khan v, Province of Sindh and others (PLD 1977 Karachi 604); ' In the above case, a Full Bench of the Sindh High Court comprising learned Chief Justice and four companion Judges, while dealing with the Proclamation issued under Article 232 on 21-4-1977, held that in view of clear embargo placed by the language of clause (2) of Article 236 of the Constitution, there was also no escape from the conclusion that the Proclamation of Emergency issued by the President on 21-4-1977 could not be called in question.

(iii) Stephen Kalong Ningkan v. Government of Malaysia (1970 AC 379); ' in which the facts were that the appellant was appointed Chief Minister of State of Sarawak on 22- 7-1963 and continued to hold the same after Malaysia Day when Sarawak became one of the States of the Federation of Malaysia. The Constitution of Sarawak, which came into force just before Malaysia Day, inter alia contained Article 13 which provided that the State legislature shall consist of the Governor and one House to be known as the Council Negri. The executive authority of the State was vested in the Governor by Article 5. Article 6 provided a Supreme Council or Cabinet, which was to be set up to advise the Governor. It consisted of Chief Minister and five other members, all appointed by the Governor from the membership of the Council Negri. Article 7 inter alia laid down that if the Chief Minister ceased to command the confidence of majority of the Council Negri, he was to tender resignation of the appointed members of the Supreme Council. It seems that one of the Ministers in the Cabinet of the appellant on 14-6-1966 wrote to the Governor that the appellant had lost confidence. The above communication was signed by 21 members of the Council out of the total of 42 excluding the Speaker. Thereupon, on 16-6-1966 Governor's Private Secretary wrote to the appellant stating that as the Governor was satisfied that the appellant had ceased to command the confidence of the Majority of the Council he was requested to present himself forthwith to tender his resignation. However, the appellant on 17-6-1966 contested the factual aspect and suggested that the matter be put to the test by convening a meeting of the Council for the purpose. In response to the above letter on the same day, the Governor wrote informing the appellant that he and other members of the Supreme Council had ceased to hold office. The dismissal was duly published--against the above action, the appellant had commenced legal proceedings in the High Court at Kuchin by seeking a declaration that he was still Chief Minister of Sarawak and an injunction restraining a successor from acting in this capacity. The Acting Chief Justice of Borneo gave judgment in favour of the appellant by holding that the Governor had no power to dismiss the appellant and that the appellant was still the Chief Minister. Accordingly, the appellant was reinstated. The above judgment produced a vigorous reaction on the part of the Federal Government on 14-9-1966. After a week of the above judgment, the Supreme Head of the Federation of Malaysia on the advice of the Federal Cabinet under Article 40(1) of the Federal Constitution, proclaimed a state of emergency through the State of Sarawak under Article 150 of the Constitution. After that, certain amendments were made in the Constitution of Sarawak inter alia providing that the Governor might in his absolute discretion dismiss the Chief Minister and members of the Supreme Council if--

(a) that in meeting of the Council Negri a resolution of no confidence was passed in the Government by a majority members present and voting; and

(b) the Chief Minister after passing such resolution failed to resign and to tender the resignation of the members of the Supreme Council.

' The above amendments were temporary provisions as they were to cease and not to have effect on the expiry of six months after the termination of the emergency under Article 150(7) of the Constitution. It seems that the Council on 23-9-1966 met and passed a vote of no-confidence in the appellant. On the next day, the Governor purporting to act under the above-amended provision, dismissed the appellant from his position as Chief Minister. Against the above order, the appellant commenced proceedings by petition in the Federal Court seeking a declaration that the impugned amendments made in the relevant provisions were ultra vires the Federal Parliament.

The above legal proceedings were dismissed by the Federal Court of Malaysia, against which an appeal was filed before the Privy Council, which was declined.

13. Mr. Sharifuddin Pirzada has also referred to the case of Darwesh M. Arbey, Advocate v.

Federation of Pakistan through The Law Secretary and 2 others (PLD 1980 Lahore 206), in which a Full Bench of the Lahore High Court, while construing the provision of Article 245 (3) of the Constitution, held that the ouster of jurisdiction of the High Court depended upon the presence of three jurisdictional facts referred to therein, namely:

(i) Whether there is a direction of the Federal Government under Article 245 (1)?

(ii) Whether the Armed Forces start acting in aid of the civil power in pursuance of that direction?

And

(iii) Whether the area has been specified and identified, where they are so acting?

14. On the other hand, Mr. Khalid Anwar, learned counsel for the petitioner, has submitted that in the Constitution, there are six types of provisions relating to ouster of jurisdiction, namely:

(i) The provisions which commence with the words "notwithstanding anything contained in the Constitution".

(ii) The provisions which commence with the words "notwithstanding any judgment or order of the Court".

(iii) The provisions which inter alia contain the expression "act done or purported to have been done".

(iv) The provisions which contain the expression "deemed to have been done in good faith".

(v) The provision which provides "shall not be called in question on any ground"

(vi) The provisions which use the expression "shall not be called in question"

' According to him, Article 236 (2) of the Constitution falls under the last category which is a specie of the weakest form of ouster of jurisdiction. He has also referred to the following cases:-

(i) The State v. Zia-ur-Rahman and others (PLD 1973 SC 49); in which this Court, while dealing with the ouster clause contained in Article 281 which provided that "All Proclamations, President's. Orders, Martial Law Regulations, Martial Law Orders, and all other laws made as from the twenty-fifth day of March 1969, are hereby declared, notwithstanding any judgment of any Court, to have been validly made by competent authority, and shall not be called in question in any Court" held as follows:-- "As a general rule it is unthinkable that any Legislature consisting of civilised persons would in normal circumstances seek to perpetrate a manifest injustice by validating acts done in excess of jurisdiction or in abuse of jurisdiction or clearly in bad faith and it is for this reason that the Courts, out of respect for the Legislature, start with the presumption that the Legislature has to be imputed a just intention unless the words of ouster used are either so express or so unequivocal that it must come to the contrary conclusion. The Legislature, however, in abnormal circumstances does not use such express or clear words or words which would necessarily imply such an unfair or unjust intent but resorts to legislative devices of incorporating `deeming' clause or extending the validity to even acts 'purported' to be done in exercise of statutory powers and then to add a clause saying that no Court shall call in question such acts."

' On the other hand, Mr. Sharifuddin Pirzada has specifically relied upon the following passage preceding the above-quoted passage:-- "These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny: But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principles consistently affirmed by all Courts the provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster."

(ii) The Federation of Pakistan through The Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151); ' In the above case this Court, while considering the effect of the amended Article 281 of which scope was enlarged by the amendment by adding the words "notwithstanding any judgment of any Court", it was held that the validity sought to be conferred by the above words does not extend to acts done, orders made or proceedings taken without jurisdiction, or coram non judice.

(iii) Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 in which Article 270-A of the Constitution, which purported to validate, all orders made, proceedings taken and acts done by any authority or by any person, which were made, taken or done between 5-7- 1977 and the date on which the above Article came into force, in exercise of the powers derived from any proclamation, President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules, orders or bye-laws or in execution or in compliance with order made or sentence passed by any authority in exercise of purported exercise of power as aforesaid, by providing that notwithstanding any judgment of any Court be deemed to be and always to have been validly made, taken or done and shall not be called in question in any Court on any ground whatsoever, but this Court held that the above ouster is not absolute and the Court would have jurisdiction in the case of coram non judice or without jurisdiction or mala fide. The relevant passages from the case of Saeed Ahmad Khan (supra) were quoted with approval.

15. The above Lahore and Karachi judgments support Mr. Sharifuddin Pirzada's above contention.

The judgment of the Privy Council relating to Malaysia in fact does not relate to ouster of jurisdiction but it pertains to the question, whether the Governor was justified in dismissing the Chief Minister of Sarawak State on the basis of the amended law which was enacted under the emergency power. The case of Darwesh M. Arbey, Advocate v. Federation of Pakistan through The Law Secretary and 2 others (supra) is distinguishable as has been rightly pointed out by Mr. Sharifuddin Pirzada from the above two cases of Lahore and Karachi High Courts. The portion of the judgment relied upon by Mr. Sharifuddin Pirzada from the case of Zia-ur-Rehman and others (supra) reflects the ratio decidendi of the judgments referred to in the preceding paras. Of the said judgment. It also contains the observations of Hamoodur Rahman, C.J. To the effect that if the language used in the relevant statute is such that it leaves no room or doubt as to the intention of the legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect to and even acts performed without jurisdiction or mala fide will not be open to judicial scrutiny. It also reiterated the well-settled proposition of legal jurisprudence that the Courts having the right to interpret the law will in each case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Court has been ousted keeping in view the principles consistently affirmed by all Courts that provisions seeking to oust jurisdiction of the superior Courts are to be construed strictly with a pronounced leaning against ouster. It may be observed that in spite of the above observations made by Hamoodur 'Rehman, C.J. In the above-quoted passage of the judgment relied upon by Mr. Sharifuddin Pirzada, his Lordship concluded as under:-- "In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 alongwith some of the other provisions of the same Constitution without departing from the well- recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice."

16. The above view was reiterated in the cases of Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra). In other words, it has been held by this Court that even if the impugned act or action has been protected by a Constitutional provision by ouster clause, the Superior Courts still have the jurisdiction to interfere with in the above three categories of the cases namely, without jurisdiction, coram non judice and mala fide. In the case of Mian Muhammad Nawaz Shard (supra), the impugned action was taken, dissolving the National Assembly and dismissing the Prime Minister and his Cabinet under Article 58 (2) (b) of the Constitution, wherein the President has been empowered to dissolve the National Assembly in his discretion for the reasons contained in sub- clauses (a) and (b) of the above Article. It may further be pointed out that clause (2) of Article 48 of the Constitution provides that "notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever."

' The above clause is more wide in its nature as an ouster clause as it begins with the words "Notwithstanding anything contained in clause (1)" and ends by employing the words "on any ground whatsoever". In spite of the fact that the above clause was so widely framed, the majority view of 10 to 1 in the above case held that this Court had jurisdiction to proceed with the matter and to examine the vires of the impugned action. It seems that by now in Pakistan it is well-settled principle of law that notwithstanding an ouster clause in the Constitution or in any other statute, the Courts have jurisdiction in the above three categories of cases.

17. In the present case, the proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saecd Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will no cover a proclamation which is without jurisdiction, coram non judice or mala fide and the Superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects.

18. I may now revert to the above second point as to the validity of the appointment of Acting Governor. The precise objection of Mr. Khalid Anwar as to the validity of the appointment of the Acting Governor was two-fold, firstly, that under clause (2) of Article 101, the Governor was not qualified to be appointed as a Governor as he was not qualified to be elected as a member of the National Assembly because two years period had not expired after he ceased to hold the office of the Vice-Chancellor in terms of Article 63, and secondly, under Article 104 of the Constitution, a person can be appointed as an Acting Governor if the Governor is absent from Pakistan or is unable to perform the functions of his office and as there was no Governor when the Acting Governor was appointed, Article 104 was not applicable. According to Mr. Khalid Anwar since the Governor was not validly appointed, the report submitted by him on the basis of which the Proclamation was issued, vitiated the Proclamation on the above ground.

19. On the other hand, Mr. Sharifuddin Pirzada has urged, firstly, that the validity of the appointment of the Acting Governor cannot be questioned by the petitioner in the above proceedings inter alia on account of de facto doctrine and, secondly, the Governor's appointment is covered by clause

(5) of Article 101 which was incorporated by President Order No,14 of 1985 and amended by President Order No,18 of 1985, which provides that "The President may make such provision as he thinks fit for the discharge of the functions of the Governor in any contingency not provided for in this Part".

20. Mr. Abid Hassan Minto, who has appeared for the Acting Governor, adopted the above arguments of Mr. Sharifuddin Pirzada and pointed out that it is not open to the petitioner to impugn the validity of the Acting Governor's appointment as the same Acting Governor summoned the first session of the Provincial Assembly, in which the petitioner was elected as the Leader of the House.

He gave oath of office as the Chief Minister to the petitioner and that the petitioner has been dealing with him as such till the filing of the above petition.

21. Mr. Sharifuddin Pirzada has relied upon the following cases:--

(i) Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98 in which the facts were that the appellant Farzand Ali was retired from civil service prematurely. He successfully challenged the same in the erstwhile High Court of West Pakistan apprehending further action by the Government pursuant to a new law contained in the Constitution (Fourth Amendment) Act, 1965, gazetted on 12- 8-1965, he filed a Constitutional petition assailing the validity of the Constitution Third, Fourth and Sixth Amendments, which was dismissed. Thereupon, four certificated appeals were filed before this Court, in which inter alia the validity of the elections of some of the members of the Assembly, who were parties to the above amendments, was impugned. Hamoodur Rahman, C.J. While dismissing the above appeals, dilated upon de facto doctrine as under:-- "There is, however, yet another principle which can be invoked in aid for holding that in such collateral proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or as good as the acts of de jure members. This principle was first enunciated in the case of Edwin Ward Scadding v. Louis Lorant (10 ER 164) where the House of Lords after consulting all the Judges come to the conclusion that a rate for the relief of the Poor which was lawfully made in other respects, could not be rendered invalid by the circumstance that some of the vestrymen who concurred in making it, were vestrymen only de facto, and not de jure. Lord Chancellor St. Leonards enunciated the principle thus: ' With regard to the competence of the vestrymen, who were vestrymen de facto but not vestrymen de jure, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depend upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.

' I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office."

' In the case of (the case of) the Office of Judge the Ontario Supreme Court in Re: Toronto R. Co. And City of Toronto (46 DLR 547), after reviewing a large number of decisions both American and English, came to the conclusion: "That it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts arc valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information."

' Colley in his book on Constitutional Limitations, Eighth Edition, Volume 2, page 1357 says as follows:-- "No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."

' An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol. 2, page 1355 as one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiscence, though having no right in fact". An intruder is defined in the same book at page 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence.

' A modern author, Amnon Rubinstein in his book on Jurisdiction and Illegality, at page 204 et seq opines that this principle has been evolved purely upon considerations of public policy and, as such, collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost every proceeding which does not seek to remove the Judge or officer concerned, including any attack upon the decision itself."

(ii) Re James (an insolvent) (Attorney-General intervening) (1977) 1 All ER 364); ' In the above case though the dispute which was the subject-matter of the litigation was between the partners of a firm of lawyers practising at Lusaka in Zambia, but the question of validity of the appointment of Judges after unilateral declaration of independence by Smith was agitated, the de facto doctrine was pressed into service.

(iii) Gokaraju Rangaraju v. State of Andhra Pradesh AIR 1981 SC 1473; ' in which the Indian Supreme Court held that the de facto doctrine is now well-established and that the acts of the officers de facto performed by them within the scope of their assumed official authority in the interest of the public or third persons and not for their own benefit are generally as valid and binding as if they were acts of an officer de jure. It was further held that a Judge de facto is one who is not a mere intruder or usurper but who one holds office under colour of lawful authority though his appointment is defective and may later be found to be defective.

(iv) Abdul Salam Qureshi and another v. Judge, Special Court of Banking for Sindh and another PLD 1984 Kar. 462; ' In the above case, the appointment of Mr. Ahmed Ali U. Qureshi as a District Judge was impugned while he was performing the functions of Banking Court under the Banking Companies (Recovery of Loans) Ordinance, 1979. A Division Bench of the Sindh High Court held that the orders, judgments and decrees passed by him were saved by de facto doctrine.

22. Reference may also be made to the case of Abdul Mujeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others PLD 1990 Kar. 9, in which I, while presiding over a Full Bench comprising five members and after referring to the case-law, had observed as follows on the de facto doctrine:-- "I am, therefore, of the view that any alleged irregularity in the assumption of the office of the President by the General would not render his official act of giving assent to the Eighth Amendment Bill illegal but would be protected by the doctrine of de facto. Secondly the challenge to the alleged irregularity in the assumption of office by the President cannot be thrown through a collateral proceeding after several years or by what is called a side wind."

23. On the other hand, Mr. Khalid Anwar has attempted to contend that de facto doctrine is not applicable to the present case as it can be pressed when legal proceedings are between private parties and the judicial officer, whose appointment is impugned is not a party to such proceedings.

According to him, the petitioner is not a private party but was the Chief Minister at the relevant time and, secondly, the Acting Governor is not a judicial officer and, thirdly, he is a party to the above proceedings. He has referred to the case of the State v. Dosso and another PLD 1958 SC (Pak.) 533 and the case of Begum Nusrat Bhutto v. Chief of Army Staff and Federation of Pakistan PLD 1977 SC 657.

' In the cases cited by Mr. Sharifuddin Pirzada and in the case of Abdul Mujeeb Pirzada (supra) referred to hereinabove, de facto doctrine has been expressly dealt with and relied upon, whereas in the cases relied upon by Mr. Khalid Anwar, there. Seems to be no discussion on the question, whether de facto doctrine could be pressed into service.

In my view for orderly governance and as a matter of public policy, the validity of the appointment of an incumbent of a public office or a Government functionary cannot be impugned through a collateral proceeding. In this view of the matter, I am inclined to hold that it is not necessary in the above proceedings to hold, whether the Acting Governor (respondent No,4) was validly appointed or not for the reason that the acts, actions taken or orders passed by the Acting Governor are covered by the de facto doctrine.

24. The contention of Mr. Khalid Anwar that the report submitted by the Acting Governor on the basis of which the impugned proclamation was issued was vitiated on account of his defective appointment, is not tenable for the above reason. Additionally, under Article 234 of the Constitution, receipt of a report from the Acting Governor is not a precondition as the President has been empowered to issue proclamation, either on the basis of a report from the Governor of a Province or otherwise. The term "otherwise" has a very wide connotation, it will cover information acquired by the President from any other source than the Governor. Thus, a proclamation founded on information other than the Governor's report will be valid if it is in consonance with Article 234(1) of the Constitution.

25. This leads me to the above third question framed by me, namely, whether the proclamation suffers from any legal infirmity as to warrant interference by this Court. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to refer to some factual aspect. It appears that the Leader of the Opposition started hectic efforts to bring down the petitioner's Government. In that process, about seven Ministers and Advisors in the petitioner's Cabinet resigned. Two of the members of the assembly, namely Shahzada Shad Muhammad Khan and Syed Akhtar Hussain Shah, belonging to the petitioner's .Political party i,e, Pakistan Muslim League (N), also developed friendly relations with the Leader of the Opposition. It is the case of the petitioner that the above two members are guilty of defection and, therefore, they have ceased to be members in terms of section 8(B) of the Political Parties Act, 1962, hereinafter referred to as the Act. Since the above question is sub judice before the Election Commission of Pakistan, I would not like to dilate upon this aspect as this Court may have to examine the above question in an appropriate proceeding at an appropriate stage. Be that as it may, on 2-2-1994 the Opposition in terms of clause (3) of Article 54 of the Constitution, served upon the Speaker a notice of no- confidence against the petitioner. There are a number of newspapers clippings filed by the respondents to indicate that before and after the service of the above notice, the leaders belonging to the petitioner's party and other allied parties made very strong public statements to the extent of stating that they would not allow defectors to enter into the Assembly Hall and that they would start public campaign against defectors/Lotas. The petitioner has also filed a number of newspapers clippings (both English and Urdu) indicating that the M.PAs. Belonging to N.-W.F.P.

Were escorted by the P.P.P. To Sindh and they were kept and entertained at Thatta and Badin. It is not necessary to refer in detail the above newspapers clippings.

26. It may also be stated that according to the petitioner, on 5-2-1994, Muslim League Parliamentary Party in N.-W.F.P. Assembly, met and resolved to initiate proceedings against the above alleged defectors M.PAs. Under the Act. On account of the above change in the political scenario, respondent No,4, the Acting Governor, inter alia addressed a letter on 6-2-1994 to the petitioner, which reads as follows:-- "I am writing to you in anticipation of any situation relating to law and order which may arise out of the present political confrontation in the province. Some of the political leaders have gone to the extent of openly advocating violence and have by their aggressive statements given cause for anxiety to those of us who would like to see events taking a Constitutional course. I am attaching some of the prominent news items which I find particularly alarming. I, therefore, hope that you will ensure that all Members of the Provincial Assembly are allowed to exercise their right to vote without any hindrance and that the decorum of the Provincial Assembly will be maintained. If we are unable to provide such security to the Members of the Provincial Assembly, it can only result in a situation which will be detrimental to the province and its people.

(2) I would in fact recommend that we meet immediately in order to discuss the arrangements that we ought to make so as to ensure, that the proposed session of the Provincial Assembly is convened in a peaceful environment. It would be best if the Chief Secretary and I.-G. Police also attend the proposed meeting."

27. The petitioner inter alia addressed letter dated 11-2-1994 to the Acting Governor, which reads as under:-- "I believe you are aware of the seemingly Constitutional and highly unethical move against our democratically elected Provincial Government. There are reasons to believe that this plot to overthrow the Government was engineered and is being nourished by those whose duty it is to protect the Government of the Province against internal disturbances. The manner and the means employed by them and others at their behest are no longer secret. The price paid clandistinely in terms of public money in purchasing loyalties of members of the Assembly runs into millions.

Where this did not seem to be immediately possible, they were kidnapped and are detained far beyond the territorial limits of the Province. Fed with promises of choicest posts or promotions to their near ones or lured by fabulous rewards, these members are being used to destabilise a democratic Government. This does not speak well of all those involved. I am sure no patriotic citizen will endorse this.

' It is in this state of affairs that I have received your letter No,PSG1(2)/94, dated 6th February, 1994 wherein you have expressed anxiety over a law and order situation likely to arise out of the present political confrontation. Alas! There is no mention of those who are deliberately and purposely fomenting this confrontation. I am sparing no effort to ensure that their lust for power does not succeed in destroying peace and tranquility; that sanity prevails and order is maintained at all costs.

' You would please recall that when you were appointed to the high office of the Acting Governor the purpose was to ensure that election is conducted under the completely impartial personage honestly, justly, fairly and in accordance with law. I would earnestly request that the same impartiality is maintained in this hour of strife and turmoil also.

' I have gone through the news items and the statements enclosed with your letter, alleged to have been made by some political leaders. I may assure you that I am fully aware of my Constitutional duties and will leave no stone unturned to ensure that no untoward situation arises and life and liberty of every citizen is protected.

' I would earnestly suggest that you will exercise your authority to ensure that the members of the Provincial Assembly, being kept beyond the limits of our Province at present, are freed and are able to come back to exercise their Constitutional rights, free from fear or favour.

' With best regards.

' Yours sincerely, (Sd.)

(Sahibzada Muhammad Sabir Shah)."

28. It seems that while the petitioner and respondent No,4 i,e, the Acting Governor were exchanging correspondence on the above subject, Mr. Aftab Ahmed Khan Sherpao, M.P.A./Leader of the Opposition, on 15-2-1994 in the N.-W.F.P. Assembly, addressed a letter to the Acting Governor pointing out that Mr. Muhammad Nawaz Sharif, his colleagues and Khan Abdul Wali Khan had openly and blatantly talked of civil war, setting the province ablaze and physically and forcibly preventing the elected members from attending the assembly for exercising their Constitutional, legal and democratic right and for that purpose, they had given a call to their supporters for coming fully armed with licensed and unlicensed arms in furtherance of their nefarious designs. He informed the Acting Governor that for the session of the Provincial Assembly convened on 16-2- 1994 at 11-00 a.m., he alongwith his co-M.PAs. Would travel by road from Islamabad and would reach the Assembly directly. He, therefore, requested him that the concerned authorities might be directed to make foolproof security arrangements on route as well as outside and inside the Assembly. It may be mentioned that from the documents filed by the parties, it appears that a meeting had taken place between the petitioner and respondent No,4, Chief Secretary and the I.-G.

Of the Province on 15-2-1994. Pursuant to the decision in the meeting, the District Magistrate, Peshawar, through two notifications both dated 15-2-1994 under section 144, Cr.P.C. Banned the carrying of fire-arms within the limits of Peshawar District and also prohibited holding meetings and assembly of five persons or more for a period of two weeks.

29. The petitioner through his letter, dated 16-2-1994 addressed to the Acting Governor (respondent No,4), informed him about the above actions taken by him. He also informed the Acting Governor that he had passed instructions that Frontier Corps, Frontier Constabulary and even the Army be altered to come to the assistance of civil administration whenever required. In response to the petitioner's above letter, the Acting Governor through his letter, dated 21-2-1994 addressed to the petitioner, expressed his satisfaction for the steps taken by him and expressed that he was confident that the petitioner would direct the administration to take adequate measures for the safety of M.PAs. And to ensure that nobody was allowed to obstruct or harass any member of the Provincial Assembly on 23-2-1994, which was the date fixed for tabling the above vote of no confidence moved by the Opposition. It appears that on 23-2-1994 all the M.PAs. Attended the meeting in the Assembly. According to Mr. Iftikhar Gilani, learned counsel appearing for respondent No,5 (i,e, the Speaker), as many as 20 members made speeches, out of which 11 members belonged to the opposition, 6 Treasury Benches and 3 to the Jamat-i-Islami and some of them appreciated the arrangements made by the Speaker and the petitioner for ensuring peaceful atmosphere. However, it transpired that members from the Treasury Benches raised point of order to the effect that the above two M.P.As. Stood disqualified under section 8(b) of the Act and, therefore, they were strangers and he asked to leave the House. There was commotion in the Assembly, inasmuch as there was shouting from both the sides. The Speaker gave the following ruling after hearing the members from the Treasury Benches and the Opposition:-- 'RULING ' Today, the 23rd of February, 1994, after the recitation, on a point of order, Mr. Anwar Kamal Khan, Deputy Parliamentary Leader of ML(N) objected to the presence of Khanzada Shad Muhammad Khan and Syed Akhtar Hussain Shah, contending that they were disqualified by the Parliamentary Party of Pakistan Muslim Leage (N) group, as such they are not entitled to attend the business of the Assembly as M.PAs. Under the Rules. He sought the ruling of the Chair. This point of order debated at length by the Members and I have come to the conclusion that the aforesaid Members were rightly disqualified by the Parliamentary Party under section 8(b) of the Political Parties Act, 1962 read with Article 264(e) of the Constitution of Pakistan and as such they have become strangers to the House. Therefore, I order that both Khanzada Shad Muhammad Khan and Syed Akhtar Hussain Shah to leave the House. On their resistance, I directed to Seargentat arms to remove them from the House forcibly.

(Sd.)

' Hidayatullah Khan Chamkani, ' Speaker, ' Provincial Assembly of N.-W.F.P."

30. It is the case of the Speaker as submitted by Mr. Iftikhar Gilani that he asked the Opposition Leader to table the no-confidence motion for voting and waited for nearly two hours, but the Opposition refused to move the above motion and to vote in support thereof and instead of that, they used abusive language against the Speaker and, therefore, the Speaker dropped the no- confidence motion and adjourned the House to 31-3-1994.

31. It seems that on the very day, respondent No,4 the Acting Governor addressed a letter to the petitioner pointing out that eversince the resolution for the no confidence against the Chief Minister was moved in the N.-W.F.P. Assembly, the parties forming the Government in the Province failed to respond to the motion as required by law and the Constitution and that in fact the Government and its allied political parties kept trying to worsen the situation in the province. It was further pointed out that A.N.P. And P.M.L.(N) started preparation akin to waging war rather than fighting the Constitutional battle on the floor of the House and that they gave call to the workers to collect arms and ammunition and be ready for defeating the resolution by resorting to violence. It was also pointed out that in the meeting held in the morning, the above two members were not allowed to vote by the Speaker in violation of the Constitution and that members of the Pakhtoon Students Federation were allowed to enter the premises of the Provincial Assembly in order to disrupt the proceedings. In the concluding para. Of the letter, he required the petitioner under Article 130(3) of the Constitution to obtain the vote of confidence of the majority of the members of the Provincial Assembly in the section of Provincial Assembly to be held on 26-2-1994 at 10-00 hour in the Assembly Building. The copy of the above letter was endorsed to the Speaker.

32. It appears that the Speaker in response to the above endorsement of the copy addressed a letter dated 24-2-1994 to the Acting Governor, wherein he pointed out that the session requisitioned under Article 54(3) of the Constitution was still continuing and during the continuation of the session, a new session for any purpose could not be summoned. It was further stated that the above order of the Acting Governor summoning the Provincial Assembly for 26-2- 1994 if not withdrawn would be kept pending and after prorogation of the present session, the session desired by him would be called accordingly. The Secretary, Provincial Assembly also addressed a letter dated 24-2-1994 to the Acting Governor stating therein that the Speaker had passed the following order on the above letter of the Acting Governor dated 24-2-1994 requiring the Chief Minister under Article 130(5) of the Constitution to obtain vote of confidence:-- "Keep pending. Reply has already been given to the Governor."

' The above letter was responded by the Acting Governor by a letter dated 24-2-1994, in which it was pointed out to the Speaker that the Acting Governor had special responsibility under Article 130(5) of the Constitution to summon the Provincial Assembly. It was pointed out that the plea taken by the Speaker was not tenable. He was requested not to prevent Assembly Secretariat from summoning the session as per above amended order, dated 23-2-1994. The Acting Governor also addressed a letter dated 24-2-1994 to the Prime Minister pointing out therein the stand taken by the Speaker about the summoning of Assembly session for 26-2-1994 under Article 130(5) of the Constitution. There are certain daily newspaper clippings of the relevant dates indicating that the petitioner's party and his allied parties publicly stated that they would boycott the above session summoned by the Acting Governor on 26-2-1994 and they would start public campaign against the Government from 27-2-1994. The Acting Governor addressed another letter to the Prime Minister on 25-2-1994 containing his assessment and stating therein that according to his assessm ent, the Chief Minister had lost the majority. It was also highlighted that his efforts to summon the Assembly under Article 130(5) of the Constitution requiring the Chief Minister to obtain a vote of confidence from the Assembly was thwarted by the petitioner. In the concluding paras.

The Acting Governor opined that the Government of N.-W.F.P. Could not be carried on in accordance with the provisions of the Constitution, he therefore, requested that appropriate action be taken.

' Upon the receipt of the above communication from the Acting Governor the President issued the impugned proclamation.

33. After having given the factual background, I may now revert to the contentions raised by the learned counsel for the parties. The first contention of Mr. Khalid Anwar in this regard was that though the Acting Governor by his above letter dated 21-2-1994 expressed satisfaction as to the various actions taken by the petitioner pursuant to the meeting held on 15-2-1994 already referred to hereinabove and that factually no untoward incident had occurred before the session of the Assembly was held on 23-2-1994, in his report he referred to the above alleged strong statements of the petitioner and the leaders belonging to the political party and the allied parties mala fidely.

According to him, since the Opposition failed to succeed in its no-confidence motion, the Acting Governor in collusion with the Opposition issued the above letter dated 23-2-1994 under Article 130(5) of the Constitution requiring the petitioner to take vote of confidence and then submitted the above report to the Prime Minister for taking action under Article 234 of the Constitution. The above facts have lost significance because of what transpired on 23-2-1994 in the Assembly and thereafter.

34. In the original memo. Of petition, the petitioner had not made any allegation of mala fide against the Acting Governor. However, during the arguments the learned counsel for the petitioner pressed into service the above plea and submitted that the above fact of mala fide was discovered by the petitioner upon the filing of the documents by the respondents with their written reply. The petitioner's request for allowing to file an amended petition was granted. In the amended petition, the alleged particulars of mala fide on the part of the Acting Governor have been given.

The learned counsel for N.-W.F.P. Government and the Acting Governor Mr. Shahzad Jehangir and Mr. Abid Hassan Minto, respectively, have pointed out that the plea of mala fide against the Acting Governor is an afterthought plea as the documents allegedly discovered by the petitioner after the filing of the written statement and the documents by the respondents comprise mostly the correspondence between the petitioner and the Acting Governor.

35. It is true that the documents which were filed by the respondents on the basis of which the plea of mala fide has been raised by the petitioner mostly comprise correspondence between the petitioner and the respondent No,4, which was within the knowledge of the petitioner. However, in my view it is not necessary to dilate on the question of mala fide as the proclamation was warranted on account of events which took place in the Assembly on 23-2-1994 and thereafter for the reasons referred to hereinbelow.

36. Then it was urged by Mr. Khalid Anwar that there was no basis for the Acting Governor to have submitted the report to the Prime Minister for taking action under Article 234 on the basis of the incidents which had taken place on 23-2-1994 in the Provincial Assembly, the petitioner could not have been penalized.

37. The above submission has three aspects besides the question as to who was responsible for creating rumpus and commotion in the Assembly:

(i) That the Speaker declared the above two M.P.As. Who allegedly defected from the petitioner's party as having ceased to be members and directed their removal.

(ii) That the Speaker adjourned the session to a date after about 35 days, namely, to 31-3-1994; and

(iii) The Speaker declined to refix the date of 26-2-1994 pursuant to the Acting Governor's above letter dated 23-2-1994 under Article 130(5) of the Constitution requiring the petitioner to take a vote of confidence.

38. According to Mr. Khalid Anwar, since Pakistan Muslim League Parliamentary party in N.-W.F.P. On 5-2-1994 had commenced proceedings against the above two M.PAs., notwithstanding the lapse of Ordinance XXX of 1993 on 6-2-1994, the above proceedings were saved under Article 264(1)(e) of the Constitution and, therefore, the Speaker was justified in treating the above two members as strangers.

Mr. Iftikhar Gilani, who has appeared for the Speaker, has invited our attention to Rules 228 and 229 of the Provincial Assembly of North-West Frontier Province (Procedure and Conduct of Business)

Rules, 1988, hereinafter referred to as the Rules, which deal with the power of the Speaker to order withdrawal of strangers. Suffice to state that they do not relate to MPAs, who may have become disqualified.

' On the other hand, the submission of Mr. Sharifuddin Pirzada, learned Senior Advocate of Supreme Court gm. Respondents Nos. 1 and 2, was that since Ordinance XXX of 1993 had lapsed on 6-2-1994, the alleged proceedings allegedly initiated by the P.M.L.(N) Parliamentary Party against the above two members could not have been survived.

39. In this regard, it may be pertinent to refer to section 8-B of the Act as was originally enacted and the amended section by virtue of above Ordinance XXX of 1993 which was promulgated on 7- 10-1993. The unamended and the amended section 8B read as follows:- "Unamended section 8-B: 8B. Disqualification on ground of defection, etc.--(1) If a member of a House,--

(a) having been elected as such a candidate or nominee of a political party, or

(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been re-elected at a bye- election held after his disqualification.

(2) If any question arises whether a member of a House has become disqualified under subsection

(1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the Election Commission.

(3) An appeal against a decision of the Election Commission under subsection (2) shall lie Co the Supreme Court, within thirty days of the decision.

' Explanation.--In this section, "House means a House of the Majlis Shoora (Parliament) and includes a Provincial Assembly."

"Amended section 8B: 8B. Disqualification on ground of defection, etc.--(1) If a member of a House,--

(a) having been elected as such as a candidate or nominee of a political party, or

(b) having been elected as such otherwise than as a candidate or nominee of a political party and having become a member of a political party after such election, ' defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal, be disqualified from being a member of the House for the unexpired period of his term as such member, unless he has been re-elected at a bye-election held after his disqualification.

(2) If any question arises whether a member of a House has become disqualified under subsection

(1) from being a member, the question shall, on a reference by the Leader of the Parliamentary Party concerned, be determined by the majority of the members of such Parliamentary Party of the House.

(3) The member against whom decision has been made by Parliamentary Party under subsection

(2) may, within ten days, prefer an appeal before the Speaker of the National Assembly or Provincial Assembly or the Chairman of the Senate, as the case may be, who shall decide the appeal within thirty days.

' Explanation.--In this section, "House" means a House of the Majlis-e-Shoora (Parliament) and includes a Provincial Assembly."

40. A perusal of the above-quoted unamended and amended section 8B indicates that no amendment was made in subsection (1) of section 8-B which provided that if a member of a House having been elected as such as a candidate or nominee of a political party or having been elected as such otherwise than a candidate or nominee of a political party and having become a member of the political party after such election, defects or withdraws himself from the political party he shall, from the date of such defection or withdrawal be disqualified from being a member of the House for the unexpired period of his term as such member unless he has been re-elected at a bye-election held after his disqualification. It may further be noticed that under the unamended subsection (2) of the above section, the question, whether a member of a House has become disqualified under subsection (1) was referable for determination by the Election Commission but under the amended subsection (2), in place of the "Election Commission" the words "majority of the members of such Parliamentary Party of the House" were substituted.

' It may further be noticed that under the unamended subsection (3), an appeal against the decision of the Election Commission given under subsection (2) was to lie to the Supreme Court within 30 days, whereas under the amended subsection (3), the appeal against the decision of the Parliamentary Party. Under subsection (2) was provided to the Speaker of the Assembly concerned within the above period of 10 days.

41. If the above amendments remained intact, the majority of the members of the Parliamentary Party of the House was competent to pass an order under amended subsection (2) and the appeal against which was to be filed under the amended subsection (3) to the Speaker of the Assembly concerned but if the above amendments had lapsed on 6-2-1994 on the lapse of Ordinance XXX of 1993, the Election Commission is the determining authority under subsection (2) and the appellate forum is the Supreme Court.

42. Mr. Khalid Anwar has relied upon Article 264(1)(e) of the Constitution, which provides as follows:- "264. Where a law is repealed, .Or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,--

(a) ..............................................

(b) ..............................................

(c) ..............................................

(d) .............................................................

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;"

' On the other hand, Mr. Sharifuddin Pirzada has referred to the case of Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602), the case of Muhammad Naeem alias Naeema v. The State (1992 SCMR 1617) and the case of Muhammad Arif and another v. The State and another (1933 SCMR 1589).

43. Somewhat similar argument what has been urged by Mr. Khalid Anwar was advanced in the case of Muhammad Arif and another (supra) but the same was repelled as under:-- "16. From the above cited cases, it is evident that there is judicial consensus that where a law is repealed, it will not inter alia affect any investigations, legal proceedings or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the law had not been repealed. This is so, inter alia, because of section 6 of the General Clauses Act, 1897 (which) corresponds to section 4 of the West Pakistan General Clauses Act, 1956), in the absence of any contrary intention manifested in the relevant statute. Since the General Clauses Act is not applicable to the Constitution, the above provision has been incorporated therein in the form of Article 264. However, the above principle cannot be pressed into service, while dealing with temporary statutes as highlighted in the above treatises on the interpretation of statutes. The General rule in regard to a temporary statute is that in the absence of special provision to the contrary, proceedings which were taken under it, would ipso facto terminate. The case of Wicks v. Director of Public Prosecutor (supra) decided by the House of Lords has dealt with a statute where the law-maker while enacting it expressed contrary intention in section 11 (3) thereof by providing that its expiry shall not affect operation thereof as respects things previously done or omitted to be done. There is no similar provision in the Act in issue. It was to operate only for one year from the date on which it was assented to by the President in terms of section 1(2) thereof unless it was extended by the Parliament. The effect of promulgation of Ordinance XIX of 1988 was that the life of the Act was extended for a period of four months i,e, up to 12-2-1989. Since in the present case the Special Court recorded conviction on 11-4-1989 when the Act and Ordinance XIX of 1988 already stood lapsed, the judgment of the Special Court was coram non judice as has been held by the High Court. The judgment of this Court in the case of Muhammad Naeem alias Naeema v. The State (1992 SCMR 1617) wherein conviction of the accused person for possessing a Klashnikov after the expiry of the relevant Ordinance was held good for the reason that the relevant provision of the Ordinance was re-enacted retrospectively from a date prior to the date of conviction. Thus, the above case is distinguishable from the instant case."

44. In the earlier case, namely, Government of Punjab v. Zia Ullah Khan (supra), the learned Additional Advocate-General, Punjab attempted to press into service section 6-A of the General Clauses Act, 1897, which provides as under:- "6-A. Repeal of Act making textual amendment in Act or Regulation.-- Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." ' but the above contention was repelled 4 under:-- "10. Mr. Irfan Qadir has not been able to press into service the above section 6-A in the case in hand, as it is well-settled proposition of law that General Clauses Act cannot be used in aid while construing a Constitutional provision in the absence of making the same applicable through a Constitution provision, as it was provided in Article 219 of the late Constitution of Islamic Republic of Pakistan, 1956, which provides as under: 119.-41) Unless the context otherwise requires the General Clauses Act, 1897, shall apply for the interpretation of the Constitution as it applied for the interpretation of a Central Act, as if the Constitution were a Central Act.

(2) For the application of the General Clauses Act, 1897, to the interpretation of the Constitution, the Acts repealed by the Constitution shall be deemed to be Central Acts."

45. I am, therefore, inclined to hold that since Ordinance XXX of 1993 was a temporary piece of legislation, the alleged proceedings initiated by the Parliamentary Party of the Muslim League against the above two M.PAs. On 5-2-1994 could not have been saved by virtue of the above provision of the Constitution on the lapse of above Ordinance on 6-2-1994 keeping in view the ratio decidendi of the above-quoted two judgments of this Court.

46. It may be pointed out that subsection (1) of section 8B of the Ac lays down that if a member of a House defects or withdraws in any of the manner provided in sub-clauses (a) and (b) of subsection (1) thereof himself from the political party, he shall, from the date of such defection or withdrawal be disqualified being a member of the House for the unexpired period of his term as such unless he has been re-elected at a bye-election held after his disqualification. The question, therefore, arises, as to whether in order to attract above subsection (1) of section 8B of the Act, is it incumbent to have any adjudication in terms of subsections (2) and (3) of said section. Since this point is not directly involved in the present case, I would not like to express any view on the above aspect. Nor it was argued at the Bar.

47. It will suffice to observe that under the amended subsection (3) of section 8B of the Act, the Speaker was to act as an appellate authority against the determination by the majority of the members of the Parliamentary Party of the House concerned under subsection (2) thereof. It is, therefore, evident that the Speaker could not have' adjudicated upon the question, whether the above two M.PAs. Had in fact defected.

48. The above other two aspects can be conveniently taken up together. It seems that it is an admitted position that after the Speaker ordered for the ouster of the above two M.PAs., the Opposition Party refused to table the vote of confidence or to cast vote for the same, in spite of the fact that the Speaker waited for sometime, according to Mr. Iftikhar Gilani for about two hours. Be that as it may, the Speaker was to adjourn the House as under Rule 21 of the Rules, it has been provided that subject to the other provisions of the Rules, the Speaker may--

(a) adjourn sitting of the Assembly; and

(b) if he so thinks fit call a sitting of the Assembly at the time and date different to which it was earlier adjourned.

49. The Speaker instead of adjourning the session for few days, adjourned the same to 31-3-1994 i,e, after about 35 days. Mr. Sharifuddin Pirzada has contended that the above action on the part of the Speaker was partisan and the intention was to perpetuate the petitioner as Chief Minister though he had lost the majority. He has referred to a number of treatises on the role of a Speaker which emphasise that the Speaker is to act impartially and in a manner which may not give the impression that he was siding with any of the parties. He has also referred to the case of State of Punjab v. Satya Pal Dang and others (AIR 1969 Supreme Court 903), in which the facts were that East Punjab Legislative Assembly was summoned to meet on 22-2-1968. As the budget was to be considered, the financial statement was discussed on 4th, 5th and 6th March, 1968. On the last day following some disturbances in the House and consequent disciplinary action, a resolution was moved expressing no confidence in the Speaker. The House granted leave and then adjourned to the following day. When the session commenced, on the following day, the above controversy again cropped up. Another resolution was then moved in support of ' the Speaker which led to rowdy scenes. The Speaker acting under Rule 105(2) of the aforesaid Assembly Rules adjourned the Assembly on 7-3-1968 for two months in spite of the fact that the budget had to be passed before 31-3-1968. In the above factual background, the Governor then acted under his Constitutional power and on 11-3-1968 he prorogued the Assembly under Article 174(2)(e)(3). On 13-3-1968 the Governor promulgated Ordinance No,! Of 1968 which provided that the sitting of either House of Legislature was not to be adjourned without the consent of the House until the completion of the financial business. On 14-3-1968 the Governor summoned the Legislative Assembly under Article 174(3) fixing 18-3-1968 for its sitting. Under Article 175(2)(4), he directed the Assembly to consider the estimates of expenditure, the demands for supplementary grants and two appropriation bills for 1967-68. When the Assembly met on the above date, a controversy erupted on the question, whether the Governor was competent to take the above action. The Speaker gave his ruling on 18- 3-1968 to the following effect:-- "The order by the Governor dated 14-3-1968 summoning the House is also illegal and void and he had no power to re-summon the House once adjourned under Rule 105 of the Vidhan Sabha Rules referred to above. Therefore, in accordance with my earlier ruling dated 7-3-1968 the House stands adjourned for two months from that date.

' The Sabha then adjourned) 5.05 p.m."

' In spite of the fact that the Speaker adjourned the House, the Members continued to remain seated and the Speaker chair was occupied by the Deputy Speaker. Then the Chief Minister moved that the consideration of financial business be completed, the motion was carried. The other financial Bills were also passed and the said financial Bills passed under the chairmanship of the Deputy Speaker were then transmitted to the Legislative Council certified by the Deputy Speaker that they were money Bills. An objection was raised that the certificate under Article 199 (4)(5) must be signed by the Speaker of the Legislative Assembly. This was overruled by the Chairman and the Bills were passed. They were then placed before the Governor with another certificate of the Deputy Speaker. The Governor signified his assent. Then two writ petitions were filed in the High Court. The matter eventually came up before the Indian Supreme Court, which upheld the above actions taken by the Governor and adversely commented upon the Speaker.

50. The above case indicates that the Speaker cannot at his sweet will adjourn the House for a long period if the situation otherwise requires. In the above case though the budget was to be passed by 31-3-1968 but the Speaker adjourned the house for two months, which was violative of the Constitutional provisions which mandated that the Provincial Budget should be passed by 31-3- 1968. In the present case, though under Rule 21 of the Rules, the Speaker had the power to adjourn the session but he is supposed to exercise the same fairly and reasonably and keeping in view the nature of the business which is before the House. His action to adjourn the House for a period of 35 days was not warranted by facts keeping in view the controversy which was before the House. After the receipt of the Acting Governor's letter dated 23-2-1994, in which he had required the petitioner to obtain vote of confidence under Article 130(5) of the Constitution, it would have been appropriate if the Speaker would have refixed the date. According to Mr. Iftikhar Gilani, learned counsel for the Speaker, if a request would have been made by any of the parties, the Speaker would have ante-dated the sitting. In my view, the above communication of the Acting Governor was sufficient to warrant refixing of the date.

51. On account of the above rumpus and commotion in the Assembly, the opposing parties were charged with emotion and temper which resulted into a Constitutional deadlock. The efforts on the part of the Opposition was to oust the petitioner with his Cabinet, whereas the efforts on the part of the petitioner and his party was to continue. The Speaker declined to refix 26-2-1993 pursuant to the notice issued by the Acting Governor under Article 130(5) of the Constitution requiring the petitioner to obtain vote of confidence. The above situation necessitated taking of a temporary measure under Article 234 of the Constitution in order to provide cool down period to both the parties. I am, therefore, of the view that the President was justified in issuing the Proclamation.

However, the proclamation was to last only for a period of two months unless it was approved and extended by the joint session of the Parliament in terms of clause (3) of Article 234 of the Constitution.

52. This leads us to the question as to the scope of Article 234 of the Constitution. It may be advantageous to reproduce the same, which reads as follows:-- '234.--(1) If the President, on receipt of a report from the Governor of a Province or otherwise, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed at a joint sitting shall, by Proclamation--

(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly;

(b) declare that the powers of the Provincial authority of, Majlis-e-Shoora (Parliament); and

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to anybody or authority in the Province: Provided that nothing in this Article shall authorise the President to assume to himself, or direct the governor of the Province to assume on his behalf, any of the powers vested in, or exercisable by, a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.

(2) The provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (1).

(3) A proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the expiration of that period it has been approved by resolution of the joint sitting and may be like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months.

(4) Notwithstanding anything contained in clause (3), if the National Assembly stands dissolved at the time when a Proclamation is issued under this Article the Proclamation shall continue in force for a period of three months but, if a general election to the Assembly is not held before the expiration of the period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.

(5) Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Assembly shall be exercisable by or under the authority of Majlis-e-Shoora (Parliament), it shall be competent--

(a) to Majlis-e-Shoora (Parliament) in joint sitting to confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly;

(b) to Majlis-e-Shoora (Parliament) in joint sitting, or the President, when he is empowered under paragraph (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Federation, or officers and authorities thereof;

(c) to the President, when Majlis-e-Shoora (Parliament) is not in session, to authorise expenditure from the Provincial Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, pending the sanction of such expenditure by Majlis-e-Shoora (Parliament) in joint sitting; and

(d) to Majlis-e-Shoora (Parliament) in joint sitting by resolution to sanction expenditure authorised by the President under paragraph (c).

(6) Any law made by Majlis-e-Shoora (Parliament) or the President which Majlis-e-Shoora (Parliament) or the President would not, but for the issue of a Proclamation under this Article, have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation under this Article has ceased to be in force, except as to things, done or omitted to be done before the expiration of said period."

53. A perusal of the above-quoted clause (1) of the above Article indicates that if the President on receipt of a report from the Governor of a Province or otherwise, meaning thereby from any other source or from his own knowledge, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, he may or if a resolution in this behalf is passed at a joint sitting, shall by proclamation, takes the actions specified in above sub-clauses (a), (b) and (c), namely:

(i) assume to himself or direct the Governor of the Province to assume on his behalf all or any of the functions of the Provincial Government and all or any of the powers vested in or exercisable by, anybody or authority in the Province other than the Provincial Assembly;

(ii) declare that the power of the Provincial Assembly shall be exercisable by or under the authority of the Majlis-e-Shoora; and

(iii) make such incidental and consequential provisions as appear to the President to be necessary or desirable given effect to the objects of the proclamation which include his power to suspend in whole or in part the operation of any provision of the Constitution relating to anybody or authority in the Province.

It may be pointed out that the actions contemplated under above sub-clauses (a) and (b) are of temporary nature. They are to last for a period of two months unless before the expiration of the above period, they are approved by resolution of the joint sitting and extended in terms of the above-quoted clause. (3) of the above Article. The question, therefore, arises, as to whether under sub-clause (c) the President can pass an order of a permanent nature i,e, dismissing the Chief Minister and his Cabinet. It may be pointed out that the case of respondents Nos. 1 to 4 before us was that upon revival of the Provincial Assembly on the expiry of the Proclamation, the petitioner as the Chief Minister and his Cabinet will not be revived. In other words, the case of the above respondents was that the petitioner as the Chief Minister and his Cabinet had ceased to be as such permanently. It is a well-settled proposition of law that generally incidental and consequential order cannot go beyond the main order. If the orders under sub-clauses (1) and (b) were to operate for a period of two months, the Chief Minister and his Cabinet could have been suspended for the above period of two months but they could not have been removed from the office without pressing into service the mechanism provided for in the Constitution. The view which I am inclined to take of the above sub-clause (c) is fortified by the other clauses of above Article 234 and the other provisions of the Constitution, for example under clause (6) of the above Article, it has been provided that any law made by the Parliament or the President which the Parliament or the President would not but for the issue of a proclamation under the above Article, have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after proclamation under this Article has ceased to be in force except as to the thing done or omitted to be done before the expiration of the said period. This clause indicates that even the laws made by the Parliament or the President would be of temporary nature to the extent mentioned therein.

54. A reference to the other relevant provisions of the Constitution makes it abundantly clear that sub-clause (c) of clause 1 of Article 234 of the Constitution is not intended and designed to be pressed into service for dismissal of the Chief Minister and his Cabinet. In this behalf reference may be made to clause 5 of Article 130, which provides that:- "The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly."

It may be pertinent to point out that the words "in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly" were added by Constitution (VIII Amendment) Act, 1985. In other words, the pleasure of the Governor is now controlled and restricted by providing that he cannot dismiss the Chief Minister unless he is satisfied that the Chief Minister does not command the confidence of the majority and this satisfaction is not to be on the basis of personal assessment of the Governor but it is to be ascertained by summoning the Provincial Assembly requiring the Chief Minister to obtain a vote of confidence. The above negative mandate contained in above clause 5 cannot be nullified or rendered ineffective by sub-clause (c) of clause 1 of Article 234 by the President in exercise of incidental and consequential power contained therein. There seems to be no parallel provision in the Indian Constitution to the above negative mandate contained in above provision of the Constitution. Nor there was any such restriction in section 93 or 92-A of the Government of India Act, 1935.

Reference may also be made to Article 112 of the Constitution which relates to the power of the Governor to dissolve the Assembly. Under clause (1) thereof, the Governor is bound to dissolve the Assembly if so advised by the Chief Minister except that the advice of the Chief Minister, against whom notice of a resolution of no confidence has been given, is not binding in view of the explanation to above clause 1 of the above Article. Whereas, under clause 2 of above Article 112, it has been provided that the Governor may also dissolve the Provincial Assembly in his discretion but subject to the previous approval of the President where in his opinion--

(a) a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly is likely to command the confidence of the Majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a Session of the Provincial Assembly summoned for the purpose; or

(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary.

If the Assembly is dissolved under clause (2) of above Article, the Chief Minister and his Cabinet cannot go on functioning, but they have to be dismissed unless the Chief Minister is requested by the Governor to continue as a Caretaker under Article 133 of the Constitution.

55. However, submission of Mr. Sharifuddin Pirzada was that identical provisions to that of Article 234 were in the Government of India Act, 1935 in the form of section 93. The same was deleted by G.G.O.2 of 1947 before partition of India and that Pakistan and India at the time of independence inherited the Government of India Act, 1935 excluding above section 93.

' He has further pointed out that during the lifetime of the Father of the Nation, Quaid-e-Azam Muhammad All Jinnah an identical provision to that section 93 was incorporated on 10-7-1948 in the form section 92-A to the Government of India Act, 1935 by G.G.O. No, 13 of 1948. According to him the above provision was pressed into service for dismissing the ministries in Sindh and Punjab in 1951 and dismissing the Ministry in East (Bengal) twice up to 1955.

' His further submission was that in India, Article 356 (which corresponds to Article 234 of the Constitution) has been pressed into service up to 1991 on 82 occasions and thereafter for nearly 13 occasions. To reinforce his above submission, he has referred to the case of State of Rajasthan v.

Union of India AIR 1977 SC 1361, in which the President had dissolved seven State Assemblies when Janta Party returned to power in the Centre by thumping majority and the Congress Party could not secure or could secure a few seats of the Parliament in the above seven States.

' Then he referred to the case of S.R. Bommai and others etc. Etc. v. Union of India and others etc. Etc. Judgments today (1994) 2 SC 215 decided in March, 1994, in which somewhat different view to that of the above Rajasthan case was taken by five out of nine learned Judges of the Full Bench by holding that the President has no power to dissolve the Legislative Assembly of the State by using his powers under sub-clause (a) of clause (1) of Article 356 till the Proclamation is approved by both the Houses of the Parliament under clause (3) of the said Article, and that till then, he has powers only to suspend the Legislative Assembly under sub-clause (c) of clause (1) of the said Article. It was further held that the Court may invalidate the Proclamation, whether it is approved by the Parliament or not and the necessary consequence of the invalidation of the Proclamation would be to restore the status quo ante and, therefore, to restore the Council of Ministries and Legislative Assembly as they stood on the date of issuance.

' Mr. Sharifuddin Pirzada has particularly referred to para.247 from the above judgment, in which inter alia, it has been observed that:-- "The dismissed Government, if restituted into power, may violate with impunity the provisions of the Constitution and Laws for the balance period taking advantage of majority in the Legislature and full scale corruption or other unconstitutional acts will have their free play."

' Rajasthan case is distinguishable from the case in hand as it relates to the dissolution of seven State Assemblies and as a consequence dismissal of the Ministries. The above observation in the case of S.R. Bommai and others (supra) is not germane to the controversy in hand as admittedly the petitioner was not dismissed on the ground of corruption.

' I may point out that in the above recent case of the Indian Supreme Court, B. P. Jeewan Reddy, J.

In his elaborate judgment has referred to Pakistani cases including that of Haji Saifullah (supra) and Muhammad Nawaz Sharif (supra) and opined in para. 376 that the language employed in Article 58(2)(b) of the Constitution is different and stronger as compared to Article 356 of the Indian Constitution. As regards the approach of this Court in the above cases, he observed that:-- "Yet the relevance of the approach adopted by the Pakistan Supreme Court is not without significance."

56. Mr. Sharifuddin Pirzada has also referred to Basu's commentary on the Constitution of India, (Silver Jubilee Edition), in which in Volume 0, the author at pages 16 to 27 has referred to 89 cases of dissolution and/or dismissal of the State Ministries up to 1989.

' A perusal of the above resume of the above 89 cases indicates that in most of the cases, the Provincial Ministries were dismissed because the Assemblies were dissolved. In quite number of cases Assemblies and the Ministries were dissolved on the advice of the Chief Ministers who had lost the majority in the Houses. Basu in the above volume of his above treatise has adversely commented upon the above Article 356 and has made the following observation about the justifiability of the Proclamation:-- "Justifiability of the Proclamation under Article 356 (1).

' I. Clause (5), as introduced by the 38th Amendment, was as follows:-

(5) Notwithstanding anything in this Constitution, the satisfaction of the President mentioned in the clause (1) shall be final and conclusive and shall not be questioned in any Court on any ground.'

' This clause was introduced to make it clear that the Proclamation under Article 356(1), which is issued upon the subjective satisfaction of the President (like the Proclamation under Article 352(1); see Vol. N, pp.209 ff.), could not be challenged before a Court of law on any ground relating to the satisfaction of the President.

' Notwithstanding the above clause, however, the majority of a seven-Judge Bench in the Rajasthan case held that the Proclamation could be challenged on the ground that the satisfaction was mala fide or founded on a ground extraneous to that specified in Article 356(1), because in either case, there was, in law, no satisfaction of the President at all.

' Though the 7 Judges spoke in different voices, there was a fair consensus in the majority opinion followed in the subsequent case of A.K. Roy, on the following point, namely, that a Proclamation under Article 356(1), though based on subjective satisfaction of the Executive, may be challenged on the grounds:

(a) That the Proclamation has been made upon a consideration which is wholly extraneous or irrelevant to the purpose for which the power under Article 356 had been conferred by the Constitution, namely, a break-down of the Constitutional machinery in a State, or, in other words, where there is no 'reasonable nexus' between the reasons disclosed and the satisfaction of the President, because in such a case, it can be said that there has been no 'satisfaction' of the President which is a condition precedent for exercise of the power under Article 356.

(b) That the exercise of the power under Article 356 was mala fide, because a statutory order which lacks bona fides has no existence in law.

' In short, the factum of the President's satisfaction (though founded on ministerial advice) can be inquired into by the Court, to strike down the Proclamation under Article 356(1) as mala tide, if it is proved that it related to some ground other than a breakdown of the Constitutional machinery in the State concerned. II. The bar to judicial review imposed by the foregoing Clause (5) was removed by the elimination of that clause by the 44th Amendment Act, 1978. Thereafter the question incidentally came up before the Constitution Bench of the Supreme Court in A.K. Roy's case. It was pointed out (para. 27) that when the Rajasthan case was decided the bar to judicial review under Clause (5) was on the text of the Constitution. But since then that bar had been removed by the substitution in 1978. Hence, no doubt is left that the. Proclamation under Article 356(1) is now open to judicial review on grounds of illegality, irrationality, impropriety or mala fides, or in short, abuse of power."

' A perusal of the above-quoted passage from above volume of Basu indicates that clause (5) to Article 356 was added in the Indian Constitution by 38th Amendment which provided that "notwithstanding anything in this Constitution, the satisfaction of the President mentioned in clause

(1) shall be final and conclusive and shall not be questioned in any Court on any ground". The Rajasthan case was decided when above-added clause was very much in the field. In spite of that it was held by the Full Bench of the Indian Supreme Court, in the above Rajasthan case, that Proclamation could be challenged on the grounds that the satisfaction was male fide or founded on a ground extraneous to that specified in Article 356(1) because in either case there was in law no satisfaction of the President at all. The above-added clause (5) in Article 356 was removed by 44th Amendment Act, 1978. In the case of A.K. Roy AIR 1982 SC 710, it was held that since the bar had been removed by substitution in 1978; it was now open to the judicial review on the grounds of illegality, irrationality, impropriety or mala fide or in short abuse of power.

57. I may also refer a passage from para. 29.22 from the well-known treatise on Constitutional Law of India by H. M. Seervai (3rd Edition, Volume 2 at page 2628), wherein the author has opined on the basis of the case-law that literal meaning to Article 356 should not be given. Relevant portion of the same reads as follows:-- "It is clear from the judgments of the Privy Council and our Supreme Court cited above, that the literal meaning of an Article ought not to be given to it if it practically destroys the autonomy of the States. In this connection, it may be noted that if the framers of our Constitution had intended that the Union should be able to supervise and interfere in the administration of States to secure good Government the framers would have adopted a unitary Constitution for India with a large devolution of power in favour of the States. The very fact that the framers enacted a federal constitution with a Parliamentary form of Government for the Union and the States shows that internal sovereignty was to be divided between the Union and the States. A literal construction of the wide general words of Article 356 which could enable the Union Executive to cut at the root of the democratic parliamentary form of Government in the States must be rejected in favour of a construction which would preserve that form of Government. The exercise of that power must be limited to 'a failure of Constitutional machinery', that is, to preserving the Parliamentary form of Government from internal subversion, or from a deliberate deadlock created by a party or a group of parties, or from a deadlock arising from an indecisive electoral verdict which makes the carrying on of Government practically impossible."

' There is no doubt in the past more or less similar provisions have been pressed into service particularly in India for dissolving the Assemblies and dismissing the Provincial Ministries. I have already pointed out, hereinabove, in para.54 that the amendment brought about by the Constitution Eighth Amendment Act in clause (5) of Article 130 of the Constitution is of far-reaching effect. So the cases of Indian jurisdiction are not applicable on all fours to the present case. Even otherwise the past practice of placing certain construction on certain other provisions alone is not sufficient to construe Article 234 in isolation without referring to the other provisions of the Constitution.

' It may be observed that none of the learned counsel for the parties cited any case dealing directly with the present controversy. Mr. Sharifuddin Pirzada has referred to the case of Dawarkadas and another v. The State PLD 1957 SC 72 at 75, in which though reference to the dissolution in the body of judgment at page 75 has been made but the point under reference has not been touched upon and, therefore, it is of no help.

58. Then, it was urged by Mr. Sharifuddin Pirzada that either powers to dismiss the petitioner and his Cabinet flow from Article 234 or in the alternative because of the powers of the Government vested in the President, by virtue of the Proclamation, he could dismiss the petitioner and his Cabinet as he refused to take the vote of confidence.

This contention is not tenable for the reason that the conditional power to dismiss was only vested in the Governor under clause (5) of Article 130 of the Constitution, which power was not assumed by the President under the Proclamation. On the contrary the functions of the Provincial Government were vested in the Acting Governor under the Proclamation.

59. It was also urged by Mr. Sharifuddin Pirzada that Emergency Provisions necessitate taking of immediate action by the President, and, therefore, he is the sole judge to decide the question, whether a Proclamation is to be issued or not. In support of his submission he has referred to the case of Bhagat Singh v. Emperor (Viscount Dunedin) AIR 1931 PC p.111 and the case of Emperor v.

Benoari Lal AIR 1945 PC p.48.

The above reports do support Mr. Sharifuddin Pirzada's above submission. However, in this regard, it may be pertinent to point out that though Article 234 of the Constitution is contained in Part X of the Constitution, which relates to the Emergency Provisions, but it cannot be equated with Article 232 which can be invoked when the President is satisfied that a grave emergency exists in which the security of the country or part thereof is threatened by war of external aggression or by internal disturbances beyond the power of the Provincial Government to control. The invocation of the above Article even entails suspension of the Fundamental rights under Article 233. Whereas, in order to press into service Article 234, it is not necessary that there should exist a grave emergency of the nature referred to in Article 232 but the same can be invoked in aid if there is temporary Constitutional deadlock. The above two Privy Council cases relate to emergency action during the war period and, therefore, are distinguishable.

60. I may at this juncture point out that the language employed in clause (1) of Article 234 is not identical to that used in Articles 58(2)(b) and 112(2)(b) of the Constitution inasmuch the words, "and an appeal to the electorate is necessary" have been omitted in the former meaning thereby that an action under the said provision is of a temporary nature, which does not necessitate an appeal to the electorate. So the expression "a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution" will have different connotation while construing clause (1) of Article 234 than what it means in Article 58(2)

(b) or Article 112(2)(b) of the Constitution. In the former case, it is a temporary breakdown of the Constitutional machinery not necessitating an appeal to the electorate, but in the latter case the breakdown of the Constitutional machinery is total necessitating an appeal to the electorate for a new mandate. The above expression in context to Article 58(2)(b) of the Constitution has been construed by this Court in the case of Muhammad Haji Saifullah (supra) and Muhammad Nawaz Sharif (supra), which still holds good.

61. Since I have held that the Proclamation cannot operate for more than two months in the absence of approval and extension by the joint session of the Parliament in terms of clause (3) of Article 234, the petitioner and his Cabinet could not have been dismissed nor could have been treated as having ceased beyond the period of two months or extended period. The Proclamation to the above extent is beyond the purview of Article 234(1) and, therefore, it is declared to that extent as being without lawful authority and of no legal effect.

62. I now may revert to the last point namely: "Whether the Governor on 23-2-1994 under Article 130(5) of the Constitution could require the petitioner to obtain a vote of confidence."

' In this regard, it may be observed that the above question has been touched upon by me hereinabove, inter alia, in para.

51. It may again be stated that the plea taken by the Speaker was that since the Assembly was summoned by him upon receipt of the requisition in terms of clause (3) of Article 54, he alone was competent to prorogue the Assembly and till the time the Assembly was prorogued, the Acting Governor could not have summoned the Provincial Assembly requiring the Chief Minister to obtain a vote of confidence. The above stand was reiterated by Mr. Khalid Anwar on behalf of the petitioner.

' On the other hand Mr. Sharifuddin Pirzada, learned Senior Advocate Supreme Court appearing for respondents 1 and 2, has urged that clause (5) of Article 130 is not controlled by clause (3) of Article 54.

' I have already reproduced clause (5) of Article 130 of the Constitution hereinabove in para. 54, it will, therefore, suffice to reproduce the above clause (3) of Article 54 of the Constitution which reads as follows:- "(3) On a requisition signed by not less than one-fourth of the total membership of the National Assembly, the Speaker shall summon the National Assembly to meet, at such time and place as he thinks fit, within fourteen days of the receipt of the requisition; and when the Speaker has summoned the Assembly only he may prorogue it."

' A perusal of the above-quoted clause (3) shows that if the Speaker receives a requisition signed by not less than one-fourth of the total membership of the National Assembly which will include a Provincial Assembly by virtue of clause (1) of Article 127 of the Constitution, he is under Constitutional obligation to place the requisition before the House within fourteen days of the receipt of the same. It may, further be noticed that the above clause further provides that when the Speaker has summoned the Assembly, only he may prorogue it, whereas, the above clause (5) of Article 130 empowers the Governor, in case he is satisfied that the Chief Minister does not command confidence of the majority of the members of the Provincial Assembly, to require the Chief Minister to obtain a vote of confidence by summoning the Provincial Assembly. The above two clauses are independent from each other. In the present case the Speaker adjourned the House on 23-2-1994 till 31-3-1994 i,e, after about 35 days as stated above. If we were to accept Mr. Khalid Anwar's above submission, it would mean that the Speaker could have adjourned the Assembly for two or three months. In other words, for two or three months the above clause (5) of Article 130 of the Constitution would have become inoperative and a Chief Minister who might have not commanded the majority would have continued to function as the Chief Minister with his Ministers. This could not have been the intention of the framers of the Constitution. It is well-settled principle of interpretation of statutes and Constitutional instruments that the same are to be construed in a manner which may harmonize the various provisions of the statute or of the Constitutional instrument and may not cause any conflict or may not render any other provision inoperative or redundant. In this regard, it may be pertinent to mention that in Muhammad Nawaz Sharifs case (supra), it was urged by the learned counsel for the petitioner that since the National Assembly was summoned by the Speaker upon receipt of requisition under clause (4) of Article 54 of the Constitution, the President was not competent under Article 58(2)(b) of the Constitution to dissolve the National Assembly and to dismiss the Prime Minister and his Cabinet.

' The above contention was repelled, inter alia, by me as follows:-- "As regards the above first contention, it may be pertinent to observe that the power to prorogue is entirely distinct from the power to dissolve and, therefore, the factum that under clause (3) of Article 54 once the Speaker summons the National Assembly upon requisition signed by not less than one-fourth of the total membership of the National Assembly, he can only prorogue and not any other authority, does not, in any way, control or curtail the power conferred on the President under clause (2)(b) of Article 58 of the Constitution. If the National Assembly can be dissolved while in session, there seems to be no legal basis as to why it cannot be dissolved when it is not in session but is stflnmoned upon requisition under clause (3) of Article 54 of the Constitution."

I am, therefore, of the view that clause (5) of Article 130 is not controlled by clause (3) of Article 54 of the Constitution and the Acting Governor was competent under the above provision to require the petitioner to obtain a vote of confidence by fixing a reasonable date. However, I may emphasis that as a Speaker is expected to be non-partisan and to act impartially, the incumbent of the office of Governor is also expected to be nonpartisan and to act justly and fairly, with the object to ensure supremacy of the Constitution and not for any extraneous consideration.

63. It was also urged by M/s. Sharifuddin Pirzada, Shehzad Jehangir and Abid Hassan Minto that the Constitutional jurisdiction is a discretionary jurisdiction and the conduct of the petitioner outside and in the Assembly was such that he was not entitled to press into service the above discretionary relief.

It is true that one who seeks in aid Constitutional jurisdiction should come with clean hands. It is also well-settled proposition of law that Constitutional jurisdiction can be pressed into service to advance cause of justice and not to perpetuate injustice. In this regard reference may be made to the case of Syed Ali Shah v. Abdul Saghir Khan Sherwani PLD 1990 SC 504, in which I have dilated upon the above aspect and has referred to most of the case-law. In my view, there is nothing on record on the basis of which the petitioner can be denied relief in spite of having found that the impugned Proclamation was in excess of the power contained in Article 234 of the Constitution.

64. The above are my reasons in support of the majority view (seven to two), to which I was a party as reflected in the short Order dated 21-4-1994 which is incorporated as a part of this opinion, which reads as follows:-- "The Court by majority of (7 to 2) is of the view that the Proclamation issued by the President to the extent it purports to declare that the Chief Minister and his Cabinet shall cease to hold office beyond the period of currency of the Proclamation, is in excess of the power conferred on the President under Article 234 of the Constitution of the Islamic Republic of Pakistan. It is accordingly held that on the revival of the Provincial Assembly on the lapse of the Proclamation the Chief Minister and his Cabinet will also stand revived. It is however clarified that it will be open to the Governor to re-fix a date and time in accordance with Article 130(5) of the Constitution requiring the Chief Minister to obtain a vote of confidence from the ' Assembly. The petition is allowed to the above extent with no order as to costs."

' ABDUL QADEER CHAUDHRY, J.--I agree. AJMAL MIAN, J.--I agree.

' MUHAMMAD RAFIQ TARAR, J.--I agree. SALEEM AKHTAR, J.--I agree.

' FAZAL ELAHI KHAN, J.--I agree.

' MANZOOR HUSSAIN SIAL, J.--I agree.

' SAAD SAOOD JAN, ACTG. C.J.---On 25-2-1994 the President of Pakistan issued a Proclamation under Article 234 of the Constitution whereby he directed the Governor of North-West Frontier Province (hereinafter `referred to as the Province) to assume on his behalf the functions of the Government of that Province and declared that all powers of the Provincial Assembly would be exercised by or under the authority of the Parliament; further, by way of incidental and consequential measure he directed that the Chief Minister and the Provincial Ministers 'shall forthwith cease to hold office'. The petitioner was the Chief Minister of the Province at the relevant time. He has filed this petition under Article 184(3) of the Constitution to seek declarations, inter alia, to the effect that:--

(i) the Proclamation was null and void and of no legal effect;

(ii) any action taken by and on report of the Governor was contrary to law and of no legal effect; and

(iii) to declare that the Government headed by the petitioner is the duly constituted Government of the Province and is authorised to exercise all powers and discharge all responsibilities accordingly.

' He also sought an injunction to the effect that:-- "the Federal Government and the President should be restrained from interfering with or meddling with the affairs of the Government of the Province."

' The petitioner has inter alia alleged in his petition that he was elected as the leader of the Provincial Assembly by the members thereof and he continued to command the confidence of the majority of the members; that the Proclamation had been issued in furtherance of a conspiracy hatched by the Pakistan People's Party with a view to dislodge the popularly elected Government and was as such mala fide in intent; that the Province was being governed peacefully and the only problem which existed was attributable to the illegal attempts on the part of the People's Party Government at the Centre to cause defections in violation of law; that the report which had led to the issuance of the Proclamation had been made by a person who had not been legally appointed as Governor; that there was no material before the President which justified the issuance of the Proclamation under Article 234(1)(a) of the Constitution; that the President was not competent to remove the Chief Minister and his Cabinet from their respective offices and all that he could do was to assume to himself or direct the Governor to assume on his behalf the functions of the Government of the Province and that too only temporarily; and, that the action of the Federal Government in taking over the functions of the Government constituted a violation of the Provincial autonomy as it had the effect of depriving the people of the Province of their right to govern themselves.

2. In the petition as originally filed, the Pakistan People's Party was not impleaded as a party to the petition even though allegations of mala tide and conspiracy were levelled against it. Apart from that the learned counsel for the petitioner wished to raise issues which were not covered by the contents of petition as originally filed. On an objection raised by the learned counsel appearing for the Federation, the petitioner sought permission to amend his petition. This was allowed. He has since filed an amended petition. In the amended petition, the Pakistan People's Party and the Parliamentary Group of the Pakistan People's Party have also been impleaded. Some new grounds challenging the legality of the Proclamation too have been taken.

3. All the respondents have filed their respective written statements. They have denied the allegations made in the amended petition and refuted the assertion of the petitioner that the action of the President in issuing the Proclamation and the directions given therein are either unconstitutional or motivated by mala fide intent. The claim of the petitioner that he continues to enjoy the confidence of the majority of the members of the Assembly has been disputed. It is also contended that the petition is not maintainable in view of the bar contained in Article 236(2) of the Constitution.

4. When the petition came up for preliminary hearing the Court decided, though not unanimously, that the objection relating to the jurisdiction of the Court and the merits of the petition should be heard and disposed of together. In this regard, by way of precedent, it relied upon the case of Muhammad Nawaz Sharif v. President of Pakistan (PLD 1993 SC 473) where a similar procedure was adopted; accordingly, counsel appearing for the parties have addressed detailed arguments, both on the question of jurisdiction and the merits of the petition.

6. Under Article 236(2) of the Constitution, the validity of a Proclamation cannot be called in question in any Court. In view of this clear bar it is prima facie not open to this Court to examine the validity of the Proclamation. To get over this bar, the learned counsel for the petitioner canvassed a number of propositions. To begin with, he stated that this clause was not as strongly worded as some other clauses in the Constitution relating to ouster of jurisdiction of the Court and for that reason this Court was not prevented from examining the validity of the Proclamation. In this context he referred to a number of Articles such as Article 270(2) and Article 48(2). This contention is clearly untenable. Article 236(2), ibid, reads as follows:-- "The validity of any Proclamation issued or order made under this Part shall not be called in question in any Court."

The language in which this clause is expressed leaves no room for doubt and, to me, it does not seem possible to argue that while construing the clause we can, after referring to certain other similar provisions of the Constitution, introduce into it an element of discretion so as to leave it open to the Courts to decide for themselves whether in a particular case they would like to examine the validity of a Proclamation or not.

7. It was then argued by the learned counsel for the petitioner that the Proclamation was issued by the President with mala fide intent and for that reason it did not enjoy the protection of Article 236(2) from scrutiny by the Court.

8. It may be mentioned that neither in the original petition nor in the amended petition the allegation of mala fide was supported by any details thereof. In the case of Federation of Pakistan v. Saeed Ahmad (PLD 1974 SC 151) this Court has held that the mere allegation that action has been taken wrongly is not sufficient to make out a case of mala fides; in order to establish such a case some specific allegation is necessary and it must be supported by some prima facie proof to call upon the other side to produce evidence in its possession. The present petition suffers from this defect.

9. It is also argued that Major-General Khurshid Ali Khan was a usurper inasmuch as his appointment as Acting Governor was illegal; consequently, no action could be taken by the President on his report. Further, before the President could issue a Proclamation under Article 234(1) it was necessary that after making an objective assessment of the material before him he should be satisfied that a situation had come into existence where the Government of the Province could not be carried on in accordance with the provisions of the Constitution. It was only after coming to such a conclusion that he could issue a Proclamation. In this case, there was no material before him upon which his satisfaction could be based and for that reason the precondition for the exercise of the power under Article 234(1) was not fulfilled.

10. The Proclamation itself recites that in issuing it the President had acted entirely upon the report sent by the Governor to the Federal Government. This report has been placed on the record. It is in the form of a letter addressed by the Governor to the Prime Minister on 25-2-1994. It reads as follows: "It is with a heavy heart that I write to you to report that the Constitutional machinery in the Province has broken down.

' As you are aware, the Leader of the Opposition had filed a motion of no-confidence against the Provincial Government of Chief Minister Sahibzada Muhammad Sabir Shah. The Session for the vote of no confidence had been set for February 23, 1994.

' To vote did not take place. The meeting was obstructed and the Speaker in collusion with the Chief Minister in a mala fide manner adjourned the Session till March 31, 1994, quite contrary to the Constitutional requirement.

' Ever since the Chief Minister lost the support of the independents and his majority evaporated, I had been following the events closely. At each moment I tried to impress upon the Chief Minister and his Government to conduct themselves in a lawful manner.

' At the time of the vote of no-confidence, I urged them in writing not to obstruct the vote of no- confidence and if the voting was obstructed, I would be left with no option but to conclude that the Chief Minister had lost the majority in the House.

' Following a pre-planned rumpus in the Provincial Assembly, the attack on the Leader of the Opposition, the adjournment of the Session for 36 days without vote, I summoned the Session of the Provincial Assembly under Article 130(5) of the Constitution requiring the Chief Minister to obtain a vote of confidence from the Assembly. Unfortunately, the Speaker who is part and parcel of the Government has sought to obstruct the proceedings of the vote of confidence. The Secretary to the Provincial Assembly has given in writing that he is `unable to intimate date, time and place to the MPAs and also to issue the necessary notification' for the holding of the session on 26th of February 1994. I enclose his statement dated 24th February 1994. It is thus clear that I have been prevented from performing my Constitutional duty and this clearly amounts to a defiance of the Constitution.

' I may here also recall my earlier letter to you dated 15th February 1994 in which I had narrated my apprehension regarding the political situation in the Province. What happened in the Province on February 23, 1994 is now part of the public record and public knowledge and is a source of further apprehension as to the events that are likely to take place hereafter. The situation has now been further aggravated by the statements of ANP leaders in which they have threatened to launch an agitation from 27th February 1994 onwards and also by stating that they will not attend the session summoned by me for 26th February 1994.

' In the wake of the breakdown of the Constitutional machinery, I am convinced that the Government of the N.-W.F. Province cannot be carried on in accordance with the provisions of the Constitution. I am thus sending you this report for such action as you may deem appropriate under the Constitution.

' It is with pain that I report that the Provincial Government has not only failed to fulfil its Constitutional obligation but it is determined to obstruct the Constitution at every step. My assessm ent will be borne out by independent reports from other sources that you may have received from time to time."

11. As stated earlier the case of the petitioner is that Major-General Khurshid Ali Khan was not a validly appointed Governor and as such he was not competent to send any report to the President; further as his appointment was illegal his report should have been ignored by the President. It is not the case of any of the parties that Major-General Khurshid All Khan had been appointed as Governor; in fact the commission of his appointment describes him as Acting Governor. The Acting Governor is appointed under Article 104 of the Constitution which reads as follows: "When the Governor is absent from Pakistan or is unable to perform the functions of his office due to any cause, such other person as the President may direct shall act as Governor."

' There is merit in the contention raised on behalf of the petitioner that Article 104, ibid, presupposes existence of a Governor; it is only when he is absent from Pakistan or is unable to perform the functions of his office due to any cause that the power to appoint an Acting Governor under the said Article can be exercised; in other words, without there being a person holding the office of Governor appointed under Article 101 of the Constitution there cannot be an Acting Governor.

However, on behalf of the Federation it is contended that even though he was described as Acting Governor in the commission of appointment yet Major-General Khurshid Ali Khan was a person discharging the functions of the Governor under clause (5) of Article 101, ibid, which reads as follows: "The President may make such provision as he thinks fit for the discharge of the functions of a Governor in any contingency not provided for in this Part."

' In view of this position, the attack on the report submitted by Major-General Khurshid Ali Khan to the Federal Government on the ground that he was not competent to make the same fails, as according to the Federation's counsel he was merely a person discharging the functions of the Governor within the meaning of clause (5) of Article 101, ibid. It is not the case of the petitioner that Major-General Khurshid All Khan was not competent to perform the functions of the Governor under this clause. Apart from that I am in agreement with the view expressed by my learned brothers Ajmal Mian and Saeeduzzaman Siddiqui, JJ. That the legality of the appointment of Major- General Khurshid All Khan to the office which he was holding could not be challenged in these proceedings.

12. It was stated on behalf of the petitioner that the report submitted by Major-General Khurshid Ali Khan was a biased one and for that reason it could not legally form the basis of action of the President under Article 234. In this context, he pointed out that law and order was essentially a Provincial subject and its maintenance was entirely the responsibility of the Chief Minister. Under the Constitution the Governor or the person exercising the functions of the Governor was required to act on the advice of the Chief Minister. Reference in this context was made to Article 105(1) of the Constitution which states that subject to the Constitution, in the performance of his functions, the Governor shall act in accordance with the advice of the Cabinet or the Chief Minister. On the other hand, Major-General Khurshid Ali Khan had made, in violation of the above provisions of the Constitution, the maintenance of law and order his own responsibility and had been issuing directions to the Chief Minister in this regard. Further, instead of getting advice in the matter from the Chief Minister, he had been directly contacting the Chief Secretary and the Inspector-General of Police. In support of this contention reference was made to a number of letters written by Major- General Khurshid All Khan to 'the petitioner as well as a report submitted by the Inspector-General of Police to the Governor on 15-2-1994.

13. The letters referred to by the learned counsel for the petitioner do indicate that the Governor was taking keen interest in the matter of maintenance of law and order and had even been giving instructions to the petitioner in this regard. But then the contents of these letters have to be viewed in the light of the circumstances in which these were written to the petitioner.

14. Admittedly, on 3-2-1994 the opposition in the Provincial Assembly sent notice to the Assembly Secretariat that it intended to move a resolution for a vote of no-confidence against the petitioner.

Immediately thereafter the national Press started reporting with banner headlines highly provocative speeches made by the leaders of the parties to which the petitioner and the members of his Cabinet belonged. These speeches contained threats to the effect that the movers of the resolution would not be allowed to come to Peshawar; that the people of the Province would block the road to the . Assembly and that the workers of some political parties would surround the Assembly premises. It may be mentioned that most of the speeches were made in the presence of the petitioner who took no steps to disassociate himself from the threats made therein.

15. It is but natural that these threats should give rise to apprehensions in the mind-of the Opposition that force would be used against them in case they went ahead with their resolution for a vote of no-confidence against the petitioner. Mr. Aftab Ahmed Khan Sherpao who was the leader of the .Opposition in the Assembly addressed a letter to the Governor on 15-2-1994, seeking his protection on the day when the resolution was to be formally moved in the Assembly. He stated in the letter: "As you are aware that the Opposition in the N.-W.F.P. Assembly had on the 3rd of February, 1993 requisitioned the assembly for moving a no-confidence motion against the Chief Minister, N.-W.F.P.

' Since then, not only the Chief Minister of the Province and the leaders of the coalition partners in his Government, but also the leader of the Opposition in the National Assembly and former Prime Minister of Pakistan, Mian Nawaz Sharif, his colleagues and Khan Abdul Wali Khan have openly and balantly talked of civil war, setting the province ablaze and of physically and forcefully preventing the elected members from attending the Assembly for exercising their Constitutional, legal and democratic right of voting on the said motion. Furthermore, they have given a call to their supporters for coming fully armed with licensed and unlicensed arms in furtherance of their nefarious designs.

' Needless to mention that these statements coming from Chief Minister, who himself is, under the Constitution responsible for maintenance of law and order and giving protection to life and property of all citizens, have agitated the minds of the general public and led to a feeling of insecurity. This coupled with the open display of fearsome automatic weapons in public meetings addressed by the aforementioned leaders has led to a situation where there seems to be no orderly Government in the Province.

' In the backdrop of the above situation, I am writing to inform you that I alongwith other honourable MPAs will be attending the session of the Provincial Assembly convened on the 16th of February at 11 a.m. We will be travelling by road from Islamabad and reaching the Assembly direct. I am, therefore, to request you that concerned authorities may be directed to make foolproof security arrangements en route as well as outside and inside the Assembly. We further inform you that we will be returning the same way after attending the session. Apart from security arrangements, it is also requested that the highway authorities be directed to keep the route clear of all road block and hurdles."

' In view of the speeches made by the parties to which the petitioner belonged or whose support he enjoyed, the leader of the Opposition was justified in appealing to the Governor for protection on the day when the resolution was to be moved in the Provincial Assembly. It was also but natural for the Governor to feel perturbed. If in the circumstances he addressed certain letters to the petitioner or sought report from the Chief Secretary and Inspector-General of Police on the subject of maintenance of law and order he cannot be treated to have become biased against the petitioner.

The steps suggested to the petitioner for maintenance of law and order have to be regarded as essentially in the nature of advice and it appears that the petitioner understood them in the same spirit for it does not appear that he ever took exception to what the Governor had been asking him to do. The allegation therefore that the Governor had any prejudices against the petitioner is not well-founded.

16. In his report the Governor has referred to the proceedings in the Provincial Assembly on 23-2- 1994 when the resolution for a vote of no-confidence came up for consideration. He has stated:- "To vote did not take place. The meeting was obstructed and the Speaker in collusion with the Chief Minister in a mala fide manner adjourned the Session till March 31, 1994, quite contrary to the Constitutional requirement."

' The observation of the Governor that the vote did not take place on 23-2-1994 was disputed by the learned counsel for the petitioner and in support of his assertion he referred to the record of the proceedings of the Assembly wherein towards the end it was stated that the resolution was put in the House but no one stood up in support of it. The authenticity of the record of the proceedings was disputed on behalf of the respondents who asserted that the said record was prepared subsequently and did not represented what had actually happened in the Assembly.

17. Admittedly, a day before the Assembly met to consider the resolution for vote of no-confidence the Parliamentary Party of the petitioner disqualified two members of the Assembly who were elected on its tickets, on the ground that they had defected. The decision of the Parliamentary Party was immediately conveyed by the petitioner to Mr. Hidayatullah Chamkani, who was the Speaker of the Assembly. On 23-2-1994 when the Assembly met for a vote, on the basis of the said decision, Mr. Chamkani asked the two members to leave the Assembly; when they refused, he had removed them by the seargent. This led to a commotion in the House. According to the respondents strangers entered the House and assaulted the leader of the Opposition; this led to complete chaos and in that state of confusion the question of putting the resolution to vote did not arise.

18. It will thus be seen that there are two versions of what happened in the Provincial Assembly on 23-2-1994. However, it does appear that consequent upon the expulsion of two members from the Assembly there was rumpus in the House with accusation and cross-accusation being shouted by the parties at each other. In that confused state the call of the Speaker with regard to the resolution could hardly meet with any response from either side. The Governor was therefore not wrong in stating that no vote took place on 23-2-1994.

19. It is an admitted position that on 23-2-1994 Mr. Hidayatullah Chamkani adjourned the session to 31-3-1994. I have tried to explore all possible reasons for such a long adjournment but have not been able to discover a satisfactory answer. Mr. Chamkani himself did not offer one. Mr. Iftikhar Hussain Gillani did try to proffer an explanation by saying that as the tempers of the different political parties were running high the Speaker wanted to give time for them to cool down. This explanation is certainly not an acceptable one, considering the length of the period of adjournment. It is to be noticed that the session was a requisitioned one and it was the Speaker alone who could prorogue it. Its adjournment by 36 days was a very unusual step and it does lend support to the observation of the Governor, as will presently be seen, that the Speaker had done so in order to protect the Chief Minister, for, there are indications that the Chief Minister had lost his majority and the Speaker wanted to give breathing time to him in order to enable him to regain the support of the members which he had lost.

20. At the relevant time, the strength of the Provincial Assembly stood at 83 members. The leader of the Opposition in the House had demonstrated a few days prior to 23-2-1994 on the television that he had the support of 43 members. This number included the two members who had allegedly defected from the party of the petitioner to the other side. Considering the then strength of the Assembly the petitioner could not have mustered the support of more than 40 remaining members, even if it be assumed that all the other members belonging to different political groups were siding with him. This was less than the strength of the Opposition which stood at 41 even if those two members who had allegedly defected were not counted. In the circumstances, there was substance in the observation of the Governor that the Speaker had adjourned the Assembly for an unusually long period to help out the petitioner from an awkward situation.

21. The basic feature of the system of Government that we have adopted for ourselves is that the Government in power should have the support of the majority of the members of the House. Now, the position as it stood on 24-2-1994 was that the proceedings in which the resolution for vote of no confidence was to be moved had ended up in confusion and there were strong indications that the petitioner was no longer enjoying the confidence of the majority of the members in the Assembly.

In the circumstances, the Governor invoked his power under Article 130(5) of the Constitution; he summoned the Province Assembly on 26-2-1994 and required the petitioner to obtain a vote of confidence from the Assembly. The order of the Governor met with strong resistance and defiance both from the petitioner and the Speaker. They declared the order of the Governor "illegal". The Speaker put up the lame excuse that as the Assembly stood adjourned after being summoned on the requisition by the members the Governor was not competent to call upon it to meet. It is difficult to support the stand taken by both these gentlemen.

22. The power of Governor under Article 130(5) of the Constitution is intended for the purpose of ensuring that the Government of the Province has the support of the majority of the members of the Assembly. It is not qualified in any manner. There is no requirement that it should be exercised only when the Assembly does not stand adjourned. The view taken by the Speaker that the Governor could not call the Provincial Assembly while it stood adjourned was clearly unsustainable and without support from any other provision of the Constitution.

23. The effect of the refusal of the Speaker to allow the Assembly to meet in pursuance of the order of the Governor and of the declaration of the petitioner that he would not seek a vote of confidence was to create a situation where the exercise of the Constitutional power of the Governor was being obstructed and a person who had possibly lost the confidence of the Assembly was insisting on returning to the Office of Chief Minister. In the circumstances, the Governor had justification for advising the Federal Government that the Government of the Province could not be carried on in accordance with the provisions of the Constitution. As already noticed, the President in issuing the Proclamation had acted on the report of the Governor. In the circumstances, the contention that the prerequisite condition for the issuance of the Proclamation did not exist is without any substance.

24. It was then contended that while issuing the Proclamation the President had exceeded his power under Article 234(2) inasmuch as he directed that the Chief Minister and the Provincial Ministers of that Province would forthwith cease to hold office. It was argued on behalf of the petitioner that even though the President could in exercise of his powers under Article 234(11) assume to himself or direct the Governor to assume on his behalf all or any of the functions of the Government of the province but the said provision did not permit him to remove the Chief Minister and the members of his Cabinet from their respective offices. It is difficult to subscribe to this contention. The offices of the Chief Minister and the Ministers exist because certain functions have been assigned to them. Since the President is competent under Article 234(1) to take over their functions he can certainly by way of consequential measure direct that the incumbents thereof shall cease to hold office on the issuance of the Proclamation.

25. As regards the question whether on the expiry of the period during which the Proclamation can remain in force or on its withdrawal the petitioner and the Ministers of his Cabinet will stand restored to their respective offices, I am not prepared to make any comment at this stage for the reason that its period has not yet run out and is, still effective. It is to be noticed that after the issuance of the Proclamation it is the obligation of the President to take all possible measures with the object of restoring the supremacy of the Constitution in the Province. To properly equip him .In this regard the Constitution arms him with vast powers even of suspending in whole or in part the operation of the provisions of the Constitution relating to anybody or authority of the Province.

Thus, the measures which the President should adopt to discharge his obligation ought not to be restricted by a judgment of this Court when the Proclamation continues to remain in force. I need hardly add that the steps that the President may take in this regard can be of permanent nature, such as, the dissolution of the Assembly. I am unable to accept the position that on the expiry of the Proclamation the status quo ante as existed before the making of the Proclamation has of necessity to be restored. In that event it will tantamount to creating in the Province the same situation which had led to the breakdown of the Constitutional machinery. This could not have been the intention of the Constitution-makers. I am therefore unable to support the declaration issued by the majority of my learned brothers in the short order that on the revival of the Province on the lapse of the Proclamation the Chief Minister and his Cabinet will stand revived.

26. For the reasons stated above I would dismiss this petition but leave the parties to bear their own costs.

(Sd.)

SAAD SAOOD JAN, ACTG. C.J.

SAJJAD ALI SHAH, J.---I concur in the dissenting note authored by my learned brother Saad Saood Jan, ACJ dismissing the petition on the ground that it is not maintainable in view of the Bar contained in Article 236(2) of the Constitution. In this context I would like to add a note of my own.

2. Article 234 of the Constitution of Pakistan, 1973 empowers the President to issue proclamation in case of failure of Constitutional machinery in a Province. Article 236 envisages that a proclamation so issued may be varied or revoked by a subsequent proclamation. Clause (2) of this Article further provides that the validity of any proclamation issued or order made under this part shall not be called in question in any Court. In order to assess correct legal impact of this bar of jurisdiction, both Articles mentioned above are to be read in conjunction with each other.

3. Mr. Sharifuddin Pirzada, learned Advocate Supreme Court for the President, who is impleaded as respondent No, 2 in this petition, has submitted that language used in Article 234 is almost same as used in and borrowed from sections 45 and 93 of the Government of India Act, 1935. Section 45 empowered Governor-General and section 93 Governor of a Province to issue proclamations respectively in case of failure of Constitutional machinery. It was agreed between the Governors and the Ministers before partition of India that section 93 would not be invoked but situations arose in which there was no other way out but to invoke section 93. After partition when Government of India Act was adopted, section 93 was omitted and the same course was followed in India but both the Governments were constrained to reintroduce this provision in the share of section 92-A, which empowered Governor-General to issue proclamation when Government of a Province could not be carried on in accordance with the provisions of this Act and by a proclamation direct Governor of a Province to assume on behalf of Governor-General all or any of the powers vested in or exercisable by any Provincial body or authority. The provision also empowered the Governor-General to include in the proclamation such incidental and consequential provisions as may appear to him to be necessary or desirable for giving effect to the objects of the proclamation.

4. In India section 92-A of the abovementioned Act had been invoked on 95 occasions. On 23 occasions assemblies were dissolved. On 18 occasions assemblies were suspended and subsequently revived. On one occasion Speaker was dismissed for adjourning the sessions sine die.

In this connection reference can be made to the Supreme Court Judgments published in India as contained in JT (1994) 2 SC 215. In Pakistan section 92-A of the abovementioned Act was added on 10-7-1948 and was invoked on four occasions. This provision came up for examination in the case of Dawarkadas and another v. The State (PLD 1957 Supreme Court (Pak.) 72). It was held that the Sindh Control of Goondas Act enacted by virtue of the proclamation under section 92-A was intra wires. Cornelius, J. Observed at page 75 of the report as under:-- "In a section 92-A regime, the Governor remains still the single executive head of the Province, but where the Council of Ministers had been dissolved as was usually the case, and their advice was not available, direction from the Central Government which was always to be constituted on the basis of popular representation was substituted for that advice. This state of affairs could only be brought about where a grave emergency arose, or the provisions of the Constitution regarding the establishment and the maintenance of popular representative Government in the province could not be effectively carried out. That such emergencies do arise in the histories of countries which are governed on a democratic pattern, no one in Pakistan at least can truthfully deny.

Consequently, the contention that the insertion of a provision such as that in section 92-A constituted a denial of democracy cannot be accepted."

5. In the Pakistan, in the Constitution of 1973, emergency provisions have been inserted in Articles 232, 234, 235 and 236. Under Article 232 proclamation of emergency can be issued by the President if security of the country is threatened by war or internal disturbance beyond the power of Provincial Government. Under Article 235 proclamation can be issued in case of financial emergency. Under Article 236 proclamation so issued can be varied or revoked by a subsequent proclamation and under clause (2) it is provided that validity of such proclamation shall not be called in question in any Court. While examining such bar, this Court has defined nature and scope of functions of the Court when such action is taken by executive authority in respect of which jurisdiction is barred. In the case of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) this Court has held as under:-- "This Court is committed to the view that the judiciary cannot declare any provision of the Constitution to be invalid or repugnant to the national aspiration of the people and the validity of the Constitutional amendment can only be challenged if it is adopted in a manner different to the prescribed by the Constitution or is passed by a lesser number of votes than those specified in the Constitution."

6. In the case of Fauji Foundation and another v. Shamim-ur-Rehman (PLD 1983 SC 457), while commenting upon the scope of judicial review, this Court has held that purpose of judicial review is corrective or directory and extends to determine legality of administrative actions and in relation thereto constitutionality of legislation. Judicial review does extend to prying into affairs of legislature. Courts are refrained from exerting inquiry into motives of legislation.

7. Article 234(1) of the Constitution provides that if the President, on receipt of a report from the Government of a Province "or otherwise" is satisfied that a situation. The words "or otherwise" were not there in the Government of India Act and give additional powers to the President to act on any other source apart from report of the Governor. Article 234(1)(a) empowers the President to assume to himself or direct the Governor of the Province to assume on behalf of President all or any of the functions of the Government of the Province and all or any of the powers vested in exercisable by any Body or Authority in the Province other than the Provincial Assembly. The use of words "and all or any other powers" mean main executive powers and would include incidental and Constitutional powers including suspending of the Assembly.

8. Another reason for non-interference by the Court on the ground of bar of jurisdiction is that the proclamation is to be laid before joint sitting and ceases to operate after two months. It is open to the joint sitting to approve or disapprove the proclamation. This is Constitutional remedy already provided and that is one of the reasons that specific bar is contemplated under Article 236(2) which provides in unequivocal terms that validity of the proclamation cannot be called in question in any Court. Proclamation issued under Article 232 of the Constitution was examined in the light of Constitutional bar by the Division Bench of Lahore High Court in the case of Malik Muhammad Suleman v. Islamic Republic of Pakistan (PLD 1976 Lahore 1250) and relevant portion at page 1259 of the report is reproduced as under:-- "The Defence of Pakistan Ordinance, 1971 and the Defence of Pakistan Rules, 1971 were also deemed to have been validly made in pursuance of the proclamation. Thus on the day when `the Constitution came into force there was the proclamation of emergency by legal fiction. The proclamation was given the Constitutional protection and therefore is not open to any exception.

Even if it had not been so done and a proclamation had been issued by the President under Article 232, it would not have been questionable because the President is empowered to make a proclamation when he is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by the war or external aggression or internal disturbance which is beyond the power of a Provincial Government to control. The issuance of proclamation depends on the subjective satisfaction of the President and whether an emergency exists or not is a matter of which he is the sole Judge and his decision in this behalf is not justiciable."

9. From what is stated above, it appears clearly that if proclamation is outside the scope of Article 234 then bar contained in Article 236 would not apply but if proclamation is within the four corners of Article 234, then ouster of jurisdiction under Article 236 is complete and cannot be questioned on the ground of mala fides of facts. In the result in the instant case jurisdiction of the Court is barred in respect of challenge to the proclamation for facts and reasons stated above.

(Sd.)

SAJJAD ALI SHAH, J ' SAEEDUZZAMAN SIDDIQUI, J.---The petitioner, Pir Sabir Shah has filed the above petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan (here:4)41w to be referred as 'the Constitution' only) to challenge the validity of the Proclamation, dated 25-2-1994 issued by the President of Pakistan under Article 234 of the Constitution directing the Governor of N.-W.F.P. To assume the functions of Provincial Government of N.-W.F.P. On behalf of President and declaring that all powers of Provincial Assembly shall be exercisable by or under the authority of Majlis-e- Shoora (Parliament) and that the Chief Minister (petitioner) and Provincial Ministers of the Province shall cease to hold office forthwith. The proclamation is to remain in force for a period of 2 months from the date of its issue unless earlier revoked by the President. For the sake of convenience, I will hereinafter refer the Province of N.-W.F.P. And the Provincial Assembly of N.-W.F.P. As 'N.-W.F.P. And' the Assembly only.

' The petitioner had originally impleaded the Federation of Pakistan, President of Pakistan, Governor of N.-W.F P., Government of N.-W.F.P. And the Speaker of the Assembly as respondents but subsequently, Pakistan Peoples' Party (PPP) and the Parliamentary Party of PPP in the Assembly were also added as respondents in the above petition. The petition is resisted by all the respondents except respondent No,5, the Speaker of the Assembly, who has supported the petition.

The contesting respondents have jointly raised preliminary objections regarding maintainability of the above petition. However, by a majority decision, dated 2-4-1994, we decided to hear the preliminary objections alongwith other contentions raised in the petition.

' To understand the present controversy, it is necessary to state the background of the case. As a result of the dissolution of National and Provincial Assemblies in the country in July 1993, Caretaker Governments were appointed both at the Centre as well as in the four Provinces. Major-General (Retired) Khursheed Ali Khan (respondent No,4) was appointed as the Acting Governor of N.-W.F.P.

By the Commissions of Appointment, dated 19-7-1993. Election to the Assembly was held in October 1993 under the supervision of Caretaker Government of N.-W.F.P. With respondent No,4 as Governor of N.-W.F.P. After completion of election process, respondent No,4 summoned the session of the Assembly in which the elected M.PAs. Took oath and elected the petitioner as the Leader of the House. Respondent No,4 was administered the oath of the office of Chief Minister of N.-W.F.P. By the petitioner. The total strength of M.PAs in the Assembly was 83 and the final party position of various political parties/groups and the independents in the Assembly was as under: {{TABLE}} Pakistan People's Party (PPP) 22 National Awami Party (A.N.P.) 21 Pakistan Muslim League (Nawaz Group) P.M.L.(N) ... 15 Pakistan Muslim Leage (Junejo Group) P.M.L.(J) ... 4 Pakistan Islamic Front (P.I.F.) ... 4 Jamiat-i-Ulmai-Islam (J.U.I.) 1 Mutahida Deeni Mahaz (M.D.M.)

Independents: (Muslims) ... 12 (Non-Muslims) ... 3 Total: ... 83 {{TABLE}} ' From the above statement, it is quite clear that none of the political parties in the Assembly had sufficient number of M.PAs. To form a Government on the basis of its own strength in the Assembly.

The petitioner who was the leader of Parliamentary Party of P.M.L.(N) in the Assembly, with the help of M.PAs belonging to A.N.P. And 11 Independents in the Assembly, formed a coalition Government.

The allegation of the petitioner is that ever since he assumed the office of Chief Minister of N.-W.F.P., the Leader of the Parliamentary Party of P.P.P. In the Assembly. Aftab Ahmed Khan Sherpao, who is also the Leader of the Opposition in the Assembly, started efforts to destabilize his Government by whining over the support of independents and M.PAs belonging to party of the petitioner through horse-trading. It is also alleged by the petitioner that the Leader of Opposition was helped in his illegal efforts to topple the duly elected Government of the petitioner by the Federal Government as the party in power in the Centre is the same which is in Opposition in the Assembly. The above allegations are refuted by the contesting respondents. In the above-stated background, the opposition M.PAs in the Assembly gave a notice of No-Confidence Motion against the petitioner: The No-Confidence Motion against the petitioner generated lot of heat amongst against the members of ruling party and the opposition in the Assembly resulting in exchange of serious charges of horse-trading, malpractices and corruptions against each other. Respondent No,4 taking note of the threatening tone of the public statement of various political leaders published in the Press as a reaction to the No-Confidence Motion against the Government of petitioner and the alleged horse-trading and abduction of M.P.As. By the opposition party of the Assembly, addressed several letters to the petitioner pointing out to him the possible law and order situation in the Province on the eve of the Assembly Session summoned for 23-2-1994 for consideration of No- Confidence Motion. The petitioner in reply assured respondent No,4 that all possible precautionary measures will be taken by his Government to maintain calm and tranquility on the date of holding of the session of the Assembly. The session of the Assembly to consider No-Confidence Motion against the petitioner was held on 23-2-1994 and the Press report placed before us do show that all M.P.As. Of the Assembly attended this session without any obstruction and outside the Assembly no untoward incident took place on that date. However, inside the Assembly a rampus was created, when the Speaker gave a ruling that two M.P.As. Belonging to P.M.L.(N) ceased to be members of the Assembly on account of their alleged defection to the opposition party and were accordingly asked to leave the House. From the minutes of the meeting of the Assembly, dated 23- 2-1994 placed before us, it appears that when the No-Confidence Motion was put to vote, no M.PA.

From the Opposition came forward to support it and accordingly the Speaker dropped the motion.

Since the No-Confidence Motion was the only item on the agenda of the meeting of the Assembly for 23-2-1994, the Speaker adjourned the session of the Assembly to 31-3-1994 ostensibly for consideration of the remaining items contained in the agenda of requisition notice served by Opposition. The adjournment of the session of the Assembly by the Speaker for a period of about 35 days created great resentment amongst the members of opposition in the Assembly who started accusing the Speaker and the petitioner that they managed to get the session adjourned to avert defeat on the floor of the House. It was also contended by the Leader of the Opposition in the Assembly that the ruling of the Speaker disqualifying two members of P.M.L.(N) from participating in the No-Confidence Motion was mala fide and unconstitutional. The two members of the P.M.L.(N) who were prevented by the Speaker from taking part in the proceedings of the Assembly on 23-2-1994 on the ground of their alleged defection to opposition camp challenged the ruling of Speaker disqualifying them, in a writ petition before the Peshawar High Court. In the wake of these developments respondent No,4 in his capacity as the Governor of the Province called upon the petitioner through letter, dated 23-2-1994, to seek a vote of confidence from the members of the Assembly which was called for 26-2-1994 at 10-00 hours in the Assembly Building Peshawar. Simultaneously, respondent No,4 gave direction to the Secretary of the Assembly to arrange the session of the Assembly on 26-2-1994 to enable the petitioner to seek a vote of confidence from the majority of the members of the Assembly. In reply to the Governor's letter asking for convening of the session of the. Assembly on 26-2-1994, the Secretary of the Assembly stated as follows:- ' Subject: Summoning of Provincial Assembly N.-W.F.P. Under Article 130(5) of the Constitution of the Islamic Republic of Pakistan ' Sir, ' The subject cited order received by the undersigned on 24-2-1994 early morning was put to Mr. Speaker of Provincial Assembly N.-W.F.P., who was pleased to pass order as given below: "Keep pending. Reply has already been given to the Governors."

' Under the circumstances, the undersigned is unable to intimate date, time and place to the M.P.As. And issue notification: ' Respondent No,5, the Speaker of the Assembly also declined to convene the session of the Assembly on 26-2-1994 in reply to the request of respondent No,4, as follows:- ' My dear Governor, ' With reference to your amended order regarding summoning the Provincial Assembly Session for February 26, 1994 at 10-00 a.m., so as to enable the Chief Minister of N.-W.F.P., Sahibzada Muhammad Sabir Shah to seek a vote of confidence.

(2) The Provincial Assembly is already in session having been summoned on a requisition under Article 54(3) read with Article 127 of the Constitution of the Islamic Republic of Pakistan.

(3) As already stated, the session requisitioned under Article 54(3) of the Constitution is still continuing and during the continuation of the session, a new session for any purpose cannot be summoned. I am of the view that it will be proper if your orders for summoning the session for February 26, 1994 are withdrawn because probably the facts were not placed before you in their true legal prospective.

(4) In case the mentioned order is not withdrawn it will be kept pending, and after the prorogation of the present session, the session desired by you, will be called accordingly.

(Sd.)

(Hidayatullah Khan Chamkani), Speakers."

' Respondent No,4, in these circumstances, reported the entire matter to the President through Prime Minister, recommending action under Article 234 of the Constitution. The Prime Minister advised the President to take action as recommended by the Governor and, accordingly, the President issued the impugned proclamation under Article 234 of the Constitution on 25-2-1994.

' I will first take up the preliminary objections raised by the contesting respondents to the maintainability of the above petition. Mr. Sharifuddin Pirzada, the learned Senior A.S.C. Appearing for the Federation of Pakistan and President of Pakistan, has challenged the maintainability of the above petition on the ground that the jurisdiction of the Courts is completely ousted under sub- clause (2) of Article 236 of the Constitution to examine the validity of the Proclamation issued by the President under Article 234 of the Constitution and as such this petition is not maintainable. In addition to the above preliminary objections raised by Mr. Sharifuddin Pirzada, the learned counsel appearing for other contesting respondents in the petition have also challenged the maintainability of above petition on the ground that the controversy raised in the petition does not involve enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution and as such the original jurisdiction of this Court under Article 184(3) of the Constitution is not attracted in the present case.

' Mr. Khalid Anwar, the learned counsel appearing for the petitioner, in reply to the above preliminary objections contended that the petition filed by his client under Article 184(3) of the Constitution before this Court is fully competent in view of the decision of this Court in the case of Mian Muhammad Nawaz Sharif v. Federation of Pakistan (PLD 1993 SC 473). Replying to the other preliminary objection of the respondents that the validity of the proclamation issued under Article 234 of the Constitution cannot be called in question before any Court in view of the bar contained in sub-clause (2) of Article 236 of the Constitution, Mr. Khalid Anwar contended that the bar contained in the above Article is only restricted to the proclamation which falls within the ambit of Article 234 of the Constitution. It is contended by Mr. Khalid Anwar that if it is shown to the Court that the proclamation issued under Article 234 of the Constitution was outside the scope of the said Article or that it was issued in mala fide exercise of power by the President or it is coram non judice, then in spite of the bar pleaded by the respondents, the Court will examine the validity of the proclamation and if it is found that the proclamation issued under Article 234 of the Constitution by the President either suffered from lack or excess of jurisdiction, or was issued in exercise of the power mala fidely, the Court will strike down the same as unconstitutional in exercise of its power of judicial review.

' The first preliminary objection relates to the maintainability of the petition under Article 184(3) of the Constitution. The learned counsel for the respondents contended that the petition does not involve enforcement of any of the fundamental rights of the petitioner mentioned in Chapter I of Part II of the Constitution and as such a direct petition before this Court under Article 184(3) of the Constitution is not maintainable. In case of Mian Muhammad Nawaz Sharif (supra), this Court examined at length the question of maintainability of a direct petition to this Court under Article 184(3) of the Constitution when the Assembly was dissolved under the orders of President of Pakistan passed in exercise of his powers under Article 58(2)(b) of the Constitution and after detailed discussion, this Court by majority held that in such circumstances a direct petition before this Court under Article 184(3) of the Constitution is maintainable. It is not necessary to repeat all those reasons here again. I, therefore, hold that in view of the majority decision of this Court in Mian Muhammad Nawaz Shun case (supra) the above petition under Article 184(3) of the Constitution is maintainable. The next preliminary objection raised on behalf of the respondents, by Mt.

Sharifuddin Pirzada, regarding maintainability of the petitioner relates to bar of jurisdiction contained in Article 236 of the Constitution which reads as follows:-- "236.--(1) A proclamation issued under this part may be varied or revoked by a subsequent proclamation.

(2) The validity of any proclamation issued or order made under this Part shall not be called in question in any Court."

' Mr. Pirzada relying on sub-clause (2) of Article 236 ibid contended that the bar contained in the above provision is in absolute term and has the effect of taking away completely the powers of the Court to examine the validity of a Proclamation issued by the President under Article 234 of the Constitution. It is. Accordingly, contended by Mr. Sharifuddin Pirzada that the petition is liable to be dismissed on this short ground alone. In support of his contention, Mr. Pirzada relied on the following observations of the Supreme Court in the case of State v. Zia-ur-Rehman PLD 1973 SC 49:- - "These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to asset its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial security. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principles consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster."

' The above observations in Zia-ur-Rehman's case (supra) were made by this Court after taking note of contention of the learned Attorney-General in the case that in view of complete protection granted under Article 281 of the Interim Constitution of 1972 to all orders, proceedings and acts, made, taken or purported to have been made, taken or done in exercise of the power derived from any presidential order, martial law regulation, martial law order, enactment, notification, rule or orders or bye-laws, such order, action or proceedings even if found to be suffering from lack of jurisdiction or were mala finely taken or were coram non judice, will be immune from being challenged before any Court or authority in view of the decision in the cases of Mian Iftikharuddin v.

Muhammad Sarfraz PLD 1961 SC 585 and Muhammad Khan v. Border Allotment Committee PLD 1965 SC 623. The above observations are, however, not the ratio in the case of Zia-ur-Rehman (supra), as these observations were fully explained by Hamoodur Rahman, CJ., in the latter part of the discussion in that case as follows:-- "The reference by the learned Attorney-General to the decisions of this Court in the cases of Muhammad Khan v. The Border Allotment Committee PLD 1965 SC 623 and Mian Iftikhar-ud-Din v.

Muhammad Sarfraz PLD 1961 SC 685 are of no assistance on this point, because, in both those cases, the legislative measure under, consideration had, by express words, ousted the jurisdiction of the Court and were legislative measures of a supra-Constitutional nature which could not be challenged in any way by reasons of the ruling given in the case of State v. Dosso PLD 1958 SC (Pak.) 533. After the coming into force of the 1962 Constitution a number of decisions of the Border Allotment Committee have in fact been scrutinized and even set aside by the High Courts in exercise of their power under Article 98 of the Constitution of 1962 and such orders have been maintained by this Court in appeal.

' As I have already pointed out, clause (2) of Article 281 of the Interim Constitution contains no express words ousting the jurisdiction of the Courts similar to those contained in clause (1) of the same Article and it is for this reason that it has been contended that the validation given by the said clause to even acts purported to be done in exercise of power given by the legislative measures validated by clause (1) or in the purported exercise of these powers, amounts to the validation not only of acts lawfully done but also of acts done without jurisdiction or mala fide. The .Decisions relied upon, however, only indicate that where jurisdiction is in fact ousted, then an allegation of mala fides will not restore jurisdiction. This is not the case here. Those decisions, therefore, have no application, because, in my view, the jurisdiction of the Courts has not been ousted by clause (2) of Article 281 either by express words or by necessary implication."

' The ratio in the case in Zia-ur-Rehman's case (supra) was recorded by Hamoodur Rahman, C.J.

After quoting with approval the relevant passages from the cases of Zafar-ul-Hassan v. Republic of Pakistan PLD 1960 SC 113, Abdur Rauf v. Abdul Hameed PLD 1965 SC 671, Muhammad Jamil Asghar v.

Improvement Trust PLD 1965 SC 698 and Government of West Pakistan v. Begum Agha Shorish Kashmiri PLD 1969 SC 14 at page 89 of the report, as follows:-- "It is a well-established rule of interpretation that where in a statute there are both general provisions as well as special provisions for meeting a particular situation, then it is the special provisions which must be applied to that particular case or situation instead of general provisions.

Applying this principle of generalia specialibus non derogant, the provisions of Article 295 will have to be applied to the repealed legislative measures and thereunder it is significant that only acts "duly done" or things "suffered under the law" are protected. Acts done mala fide or without jurisdiction or acts which are coram non judice would clearly not be acts "duly done" and, therefore, the protection would not extend to such acts.

' In either view of the matter, therefore, the conclusion to which I have arrived is that the validity given by clause (2) of Article 281 of the Interim Constitution to acts done or purported to be done in exercise of the powers given by Martial Law Regulations and Orders since repealed or even in the purported exercise of those powers do not have the effect of validating acts done coram non judice or without jurisdiction or mala fide. Such an interpretation, in my view, not only gives full effect to the provisions of the Interim Constitution but also administers the will of the Law-maker as far as it can be gathered from a harmonious reading of the provisions of clause (2) of Article 281 alongwith some of the other provisions of the same Constitution without departing from the well- recognized principle that the Legislature should not be imputed the intention of perpetuating or perpetrating an injustice."

' It may be mentioned here that the language of Article 281 of the Interim Constitution of 1972 was amended by the Legislature after the decision in Zia-ur-Rehman's case and once again in the case of Federation of Pakistan v. Saeed Ahmad PLD 1974 SC 151 it was argued on behalf of the Government that the decision of this Court in Miss Asma Jilani v. Government of the Punjab PLD 1972 SC 139 and Zia-ur-Rehman's case (supra) .Which declared the actions taken under the martial law regulation, which were either mala fide or without jurisdiction or coram non judice could be brought under challenge in spite of the bar contained in sub-caluse (2) of Article 281 of the Interim Constitution, in no more a good law as after the amendment in the language of Article 281 of that Constitution those orders which may be found to be mala fide, or without jurisdiction or coram non judice could no more be challenged before the Court on the ground of mala fide, lack of jurisdiction or coram non judice. This Court after reaffirming the rule laid down in Zia-ur-Rehman's case (supra) repelled the contention of the Government, as follows:-- "The result, therefore, to which we have arrived as a result of the interpretation of the provisions of Article 281 of the Interim Constitution as amended by President's Order No,3 of 1973 and Articles 269 and 270 of the permanent Constitution is that we are still unable to agree, upon the accepted principles of construction to which we have adverted earlier, that acts, orders or proceedings, which are done, taken or made without jurisdiction mala fide or coram non judice, have been saved from the scrutiny of the Courts by the ouster clause now incorporated in these provisions.

However, wide a meaning is given to the word "validity, the result would still be the same, for, the validity that has been conferred is to acts done or purported to be done in the exercise of or in the purported exercise of powers derived from such orders, Regulation, Enactments, Rules, Orders, Bye- Laws, etc. And to nothing else.

' It is also wrong, in our view, to contend that the decision in Zia-ur-Rehman's case with regard to acts, orders or proceedings to which validity had been conferred by clause (2) of Article 281 was based only on the absence of the ouster clause in it. The interpretation of the other provisions had nothing to do with the ouster clause. It was referred to only to point out that, in any event, in the absence of such an ouster clause, the Courts were in no event debarred from enquiring into the validity pr otherwise of the acts, orders or proceedings sought to be validated. Since the relevant provisions of the said clause still remain the same our conclusion must, therefore, also be the same."

' Similarly, in the case of Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 a similar bar on the power of Court in Article 270-A of the Constitution was explained by this Court, as follows:-- "During the Martial Law when the fundamental rights stood suspended, Article 4 furnished the only guarantee or assurance to the citizens that no action detrimental to the life, liberty, body, reputation or property of any person would be taken except in accordance with law. Acts, actions or proceedings which suffered from excess or lack of jurisdiction or were coram non judice or mala fide (be it malice in fact or in law) could hardly be treated as those in accordance with law. They were thus bad even under the system which was validated by Parliament under Article 270-A on account of violation of the assurance given by Article 4. It is difficult to concede that by enacting clauses (2) and (5) the Parliament had intended to validate such acts, actions or proceedings or to put them beyond the reach of the Courts or to deprive the persons who had suffered thereunder of any remedy or relief whatsoever. There is a presumption that Legislature does not perpetuate inequity or injustice and there is no reason why such a presumption should not be invoked while interpreting clauses (2) and (5) of Article 270-A. In Zia-ur-Rehman's case, ibid., Hamoodur Rehman, CJ, observed:- `As a general rule it is unthinkable that any Legislature consisting of civilised persons would in normal circumstances seek to perpetrate a manifest injustice by validating acts done in excess of jurisdiction or in abuse of jurisdiction or clearly in bad faith and it is for this reason that the Courts, out of respect for the Legislature, start with the presumption that the Legislature has to be imputed a just intention unless the words of ouster used are either so express or so unequivocal that it must come to the contrary conclusion. The Legislature, however, even in abnormal circumstances, does not use such express or clear words or words which would necessarily imply such an unfair or unjust intent but resorts to legislative devices of incorporating `deeming' clause of extending the validity to even acts 'purported' to be done in exercise of statutory powers and then to add a clause saying that no Court shall call in question such acts'."

' 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 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, mala fide, we see no legitimate reason why the Government should be anxious to protect such a dishonest officer or authority. The cause of the reform 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 actions."

' From the above discussion, it is quite clear that in spite of much stronger language used in Article 281 of the Interim Constitution and Article 270-A of the Constitution providing protection to the orders passed under martial law orders/regulations by the authorities and barring jurisdiction of the Courts to determine their validity, this Court consistently held that even such blanket cover of protection provided to the orders did not extend to mala fide actions or orders which were without jurisdiction or in excess of jurisdiction or were coram non judice. The discussion on the preliminary objections will be inclusive if I do not refer to the three cases decided by this Court relating to the dissolution of Assemblies reported as Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166, Ahmed Tariq Raheem v. Federation of Pakistan PLD 1992 SC 646 and Mian Muhammad Nawaz Sharif,s case (supra). In all the above cases, the President dissolved the National Assembly in exercise of his discretionary powers under Article 58(2)(b) of the Constitution which is protected from being brought under challenge before any Court in view of Article 48(2) of the Constitution.

This Court in all these occasions tested the validity of the order of President and on two occasions struck it down being outside the scope of Article 58(2)(b) (supra) in spite of the bar contained in Article 48(2) of the Constitution.

I am, therefore, of the view that in spite of the bar contained in Article 236(2) (supra), the Superior Courts in exercise of their power of judicial review can examine the validity of the Proclamation issued under Article 234 of the Constitution and if it is found that the Proclamation is either issued mala fidely or it is in excess of jurisdiction or without jurisdiction or is coram non judice, the Courts can declare it as invalid and unconstitutional. The two preliminary objections raised by the respondents are disposed of accordingly.

' Having dealt with the preliminary objections in the case, I now proceed to consider the other contentions raised by the learned counsel for the petitioner in the above petition. Mr. Khalid Anwar has raised the following contentions, on merits, in support of the above petition:--

(i) That Major-General (Retired) Khursheed All Khan (respondent No,4) was not a validly appointed Governor of the Province of N.-W.F.P. As his appointment in his capacity as Acting Governor of the Province was made in violation of the provisions of the Constitution. It is, accordingly, contended that the report submitted by respondent No,4 to the President of Pakistan recommending action under Article 234 of the Constitution was a nullity in the eyes of law which could not form the basis of proclamation issued under Article 234 of the Constitution. The Proclamation issued under Article 234 of the Constitution by the President of Pakistan on the reports submitted by respondent No,4 was therefore, not based on any material and it could not be argued that President was satisfied as to the existence of necessary circumstances justifying issuance of Proclamation under Article 234 of the Constitution;

(ii) That the proclamation under Article 234 of the Constitution was issued by the President of Pakistan mala finely in order to give effect to the conspiracy hatched by the Parliamentary Party of P.P.P. In the Assembly to topple illegally the duly elected Government of petitioner which belonged to the opposition camp in the Central Legislature.

(iii) That the material on record could not by any analysis establish that a condition had arisen in which Government of N.-W.F.P. Could not be carried on in accordance with the provisions of the Constitution and as such the Proclamation was issued for objects which were extraneous to the provisions of Article 234 of the Constitution;

(iv) That the proclamation issued by the President under Article 234 of the Constitution whereby it purported to dismiss Provincial Cabinet was wholly outside the scope of Article 234 of the Constitution;

(v) That the action of respondent No,4 directing respondent No,5 to convene the session of the Assembly on 26-2-1994 and asking the petitioner to seek a vote of confidence in accordance with the provisions of Article 130(5) of the Constitution was wholly unconstitutional, as the Assembly which was already summoned through a requisition was in session and stood adjourned on 31-3- 1994 and until the session of the Assembly was prorogued by the Speaker, a fresh session could not be called by respondent No,4.

' All the above contentions are controverted by respondents. The first contention of Mr. Khalid Anwar is that the Proclamation issued by the President under Article 234 of the Constitution on 25- 2-1994 was based on the report of respondent No,4, which was a nullity in the eyes of law, as respondent No,4 was not the Governor of N.-W.F.P. And as such there was no material before the President to reach the conclusion that a situation has arisen in which the Government of N.-W.F.P.

Could not be carried on in accordance with the provisions of the Constitution. In effect, the contention of Mr.Khalid Anwar is that the appointment of respondent No,4 as the Acting Governor of N.-W.F.P. Was in violation of the provisions of the Constitution. It is contended by the learned counsel that an Acting Governor can only be appointed in accordance with the provisions of Article 104 of the Constitution, when there exist a duly appointed Governor under Article 101 of the Constitution, but for some reasons he is unable to perform the functions of his office. It is contended that at the time respondent No,4 was appointed as the Acting Governor of N.-W.F.P., there was no Governor in the Province appointed under Article 101 of the Constitution and as such the acting appointment of the Governor was wholly unconstitutional. On the above premises, the learned counsel contended that the report of respondent No,4 submitted to the President recommending action under Article 234 of the Constitution was coram non judice as it was the report of an unauthorised person which could not be taken into consideration for the purposes of issuing the proclamation under Article 234 of the Constitution.

' Mr. Sharifuddin Pirzada, the learned counsel for the Federation in reply to the above contention of the petitioner urged that the petitioner had taken part in the general elections held in 1993 under the administration run by respondent No,4 and on his election as the Leader of the House, he was administered the oath of the office of Chief Minister of N.-W.F.P. By respondent No,4. In these circumstances, Mr. Sharifuddin contended that the petitioner cannot now be allowed to challenge the appointment of respondent No,4 as the Acting Governor of the Province. It is further contended by Mr. Pirzada that on the doctrine of de facto exercise of power, all actions taken and orders passed by respondent No,4, until such time his appointment is held in appropriate proceedings to be without lawful authority, shall be deemed to have been taken/done validly. It is lastly contended by Mr. Pirzada that the petitioner cannot be allowed to challenge the appointment of respondent No,4 in collateral proceedings. The objection raised by Mr. Sharifuddin Pirzada appears to be well founded. As rightly pointed out by Mr. Pirzada, the learned counsel for the Federation, the validity of the appointment of respondent No,4 can only be challenged through appropriate proceedings under Article 199 of the Constitution and until such time, the validity of his appointment is determined in such proceedings all actions taken by him shall be deemed to have been validity done on the doctrine of de facto exercise of the power. A collateral attack on the appointment of respondent No,4 in another proceeding cannot be permitted. The doctrine that the acts performed by a de facto holder of the office is as good as that of a de jure appointee was explained in the case of Farzand All v. Province of West Pakistan PLD 1970 SC 98 by this Court, as follows:--- "Be that as it may, since this is not a direct challenge to the right of such persons to be Members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of the impugned Constitutional Amendments themselves, I do not consider it necessary to deal with this question any further as I have held that even assuming that they were disqualified they participated, in the proceedings bona fide in assertion of a claim of right and, as such, the legislative measures passed by the Assembly with their participation were protected by sub-clause (d) of clause (1) of Article 110 of the 1962--Constitution.

' There is, however, yet another principle which can be invoked in aid for holding that in such collateral proceedings the acts of de facto members cannot be invalidated but must be treated as being equivalent to or as good as the acts of de jure members. This principle was first enunciated in the case of Edwin Ward Scadding v. Louis Larant 10 ER 164 where the House of Lords after consulting all the Judges came to the conclusion that a rate for the relief of the Poor which was lawfully made in other respects, could not be rendered invalid by the circumstance that some of the vestrymen who concurred in making it, were vestrymen only de facto, and not de jure." Lord Chancellor St. Leonards enunciated the principle thus: "With regard to the competence of vestrymen, who were vestrymen de facto but not vestrymen de jure, to make the rate, your Lordships will see at once the importance of that objection, when you consider how many public officers and persons there are who are charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers, and it might also lead to persons, instead of resorting to the ordinary legal remedies to set right anything done by the officers, taking the law into their own hands.

' I think, therefore, that the principle laid down by the learned Judges, as the principle of law, is one that is in conformity with public convenience, with reference to the discharge of the duties connected with the office'."

' In the case of the office of the Judge the Ontario Supreme Court in Re: Toronto R. Co. And City of Toronto 46 DLR 547, after reviewing a large number of decisions both American and English, came to the conclusion: "That it is not open to attack, in a collateral proceeding, the status of de facto Judge, having at least a colourable title to the office, and that his acts are valid, is clear, I think, on principle and on authority, and it is also clear that the proper proceeding to question his right to the office is by quo warranto information."

' Colley in his book on Constitutional Limitations, Eighth Edition, Volume 2, page 1357 says as follows:-- "No one is under obligation to recognize or respect the acts of an intruder, and for all legal purposes they are absolutely void. But for the sake of order and regularity, and to prevent confusion in the conduct of public business and in security of private rights, the acts of officers de facto are not suffered to be questioned because of the want of legal authority except by some direct proceeding instituted for the purpose by the State or by someone claiming the office de jure, or except when the person himself attempts to build up some right, or claim some privilege or emolument, by reason of being the officer which he claims to be. In all other cases the acts of an officer de facto are as valid and effectual, while he is suffered to retain the office, as though he were an officer by right, and the same legal consequences will flow from them for the protection of the public and of third parties. This is an important principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally."

' An officer de facto is defined by Colley in his book on Constitutional Limitations, Vol. 2, page 1355 as "one who by some colour of right is in possession of an office and for the time being performs its duties with public acquiescence, though having no right in fact". An intruder is defined in the same book at page 1357 as "one who attempts to perform the duties of an office without authority of law and without the support of public acquiescence".

' A modern author, Amnon Rubinstein in his book on Jurisdiction and Illegality, at page 204 et seq opines that "this principle has been evolved purely upon consideration of public policy and, as such, collateral proceedings have in this context invariably been given a particularly broad meaning so as to include almost every proceeding which does not seek to remove the Judge or officer concerned, including any attack upon the decision itself'.

In view of the above-discussed legal position, I am of the view that the petitioner is not entitled to challenge the appointment of respondent No,4 as unconstitutional in the present proceedings. As a corollary, it follows that all actions taken and functions performed by respondent No,4 as the de facto Governor of the Province will be deemed to have been validity made and performed until such time in appropriate proceedings the validity of his appointment is determined by the Court.

' The next contention of Mr. Khalid Anwar in the case is that the exercise of the power by the President in issuing Proclamation under Article 234 ibid was tainted with mala fide as the sole purpose of the Proclamation, dated 25-2-1994 was to pave the way for installation of a Government in N.-W.F.P. Headed by P.P.P. After toppling the legally-elected Government of petitioner who belonged to the opposition party in Centre where P.P.P. Is in power. It is very extraneously contended by Mr. Khalid Anwar that the Prime Minister and the President both belong to P.P.P. Which is in power in Centre but is in opposition in N.-W.F.P., therefore, the Central Government aided its party in the Assembly to gain power through unconstitutional means. The onus of proving mala fides on the part of President or Prime Minister was entirely on the petitioner.

Mala fide action is an act which is taken in bad faith out of malice to derive personal gain or benefit or to cause personal loss to the person against whom it is taken. In the case of Federation of Pakistan v. Saeed Ahmad (supra), this Court stated the manner in which mala fides can be established in a case. The relevant observations in the case are as follows:- 'Mala fides' is one of the most difficult thing to prove and the onus is entirely upon the person alleging mala fides 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 mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should be person alleging mala tides be allowed to roving enquiry into the files of the Government for the purposes of fishing out some kind of a case. `Mala fides' literally means 'in had faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of people. Thus, action taken, for instance, to acquire lands to take over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandizement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. Similarly, if the acquisition of land or the taking over the industries is authorised in certain specified circumstances and for certain specified purposes, then the taking of action in such a case for purposes not so specified or in circumstances not provided for by the law would amount to colourable exercise of power or a fraud upon the law.

' In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to ' In the case before us, in the original petition filed by the petitioner, there were no allegations of mala fide either against the President or Prime Minister. However, when a reply was submitted on behalf of the Federation, the learned counsel for the petitioner sought permission to amend his petition which was granted. In the amended petition, the allegations of mala tide have been made on the basis of alleged general malice of the Prime Minister and the President against the petitioner's party and its coalition partners in the Assembly, who are in opposition in the Central Legislature. Although it is alleged that the Proclamation was issued as a result of conspiracy hatched by the Parliamentary Party of P.P.P. In the Assembly to destabilise the Government of petitioner with the assistance of its party in power in the Centre but no details of such conspiracy are given. In the absence of particulars and details of mala fides and conspiracy and the evidence prima fade supporting these allegations, the Court cannot call upon the party against whom these allegations are made to produce evidence in rebuttal of these allegations. Therefore, the allegations of mala fides and conspiracy against the contesting respondents in the case remained vague and unsubstantiated.

' Mr. Khalid Anwar, the learned counsel for the petitioner, next contended that the Proclamation issued by the President under Article 234 ibid is wholly unconstitutional as there was no material before the President on the basis of which it could be said that he was satisfied that a situation had arisen in which the Government of N.-W.F.P. Could not be run in accordance with the provisions of the Constitution. The learned counsel contended that the expression "a situation has arisen to which the Government cannot be carried on in accordance with the provisions of the Constitution" is also used in Article 58(2)(b) of the Constitution, which has been interpreted in the case of Mian Muhammad Nawaz Sharif (supra), as follows:-- "From the above discussion it would appear that the expression, 'the Government of Federation cannot be carried on in accordance with the provisions of the Constitution' in Article 58(2)(b)

(supra) contemplates a situation where the affairs of the Government are not capable of being run in accordance with the provisions of the Constitution either on account of persistent, deliberate and continued violation of various provisions of the Constitution by the Government in power, or on account of some defect in the structure of the Government, its functioning in accordance with the provisions of the Constitution is rendered impossible. The use of expression 'cannot be carried on' necessarily imports an clement of impossibility and disability and refers to a irretrievable and irreversible situation. An unintentional and bona fide omission to follow a particular provision of the Constitution, not resulting in the breakdown of Government machinery or creating a situation of a stalemate or deadlock in the working of the Government, will not be covered in the situations contemplated under Article 58(2)(b) of the Constitution."

' Relying on the above observation Mr. Khalid Anwar contended that the contesting respondents failed to establish on record existence of any such condition in the Province of N.-W.F.P. At the relevant time which could justify issuance of a proclamation by the President under Article 234 ibid suspending the Provincial legislature and dismissing the Provincial Cabinet of N.-W.F.P. Mr. Khalid Anwar also contended that satisfaction of President under Article 234 ibid with regard to existence of conditions in which the Government of Province cannot be carried out in accordance with the pro visions of the Constitution is not subjective in nature but it has to be based on objective conditions which could be tested before the Court, if challenged. Mr. Khalid Anwar further contended that the session of the Assembly was summoned for 23-2-1994 by the Speaker under Article 54(3) ibid which was adjourned to 31-3-1994 after disposal of the agenda fixed for that date, for consideration of the remaining items of the requisition notice. In these circumstances, it is contended by the learned counsel that the Provincial Assembly shall he deemed to be in session for all practical purposes and as such respondent No,4 could not summon a fresh session of the Assembly on 26-2-1994 unless the session of the Assembly summoned by the Speaker was prorogued. Mr. Khalid Anwar also contended that in any case if it was considered that failure on the part of Speaker to summon the Assembly on 26-2-1994 as desired by respondent No,4, amounted to violation of the Constitutional requirement, appropriate action against the Speaker could be taken according to law but for that reason the entire Provincial Cabinet could not be dismissed by the President. It is also contended by the learned counsel that by imposing the Governor's rule in the Province, the concept of Provincial Autonomy enshrined in the Constitution was violated and the people of N.-W.F.P. Were deprived of their right to be governed through their elected representatives. Mr. Khalid Anwar also contended that the President's Proclamation dated 25-2- 1994 in so far it dismissed the Provincial Cabinet and the Chief Minister (petitioner) was wholly without jurisdiction as it was outside the scope of Article 234 ibid. ' In reply to the above submissions of the learned counsel for the petitioner, Mr. Syed Sharifuddin Pirzada, the learned counsel for respondents 1 and 2 contended that the action taken by the President under Article 234 ibid was strictly in accordance with the provisions of the Constitution.

The Proclamation dated 25-2-1994, Mr. Pirzada contended, neither suffered from any infirmity nor it was in excess of the authority conferred on the President under Article 234 ibid. Mr. Pirzada contended that the satisfaction of President with regard to existence of a situation where the Government of Province cannot be run in accordance with the provisions of the Constitution mentioned in Article 234 ibid, is subjective in nature and cannot be brought under challenge before a Court for being tested on objective standards. Replying to the contention of petitioner that the Proclamation negated the concept of Provincial autonomy enshrined in the Constitution 'and deprived the people of N.-W.F.P. Of their right to be governed through their chosen representatives, Mr. Pirzada contended that in Federal democratic set-up, instances of dissolution of State legislator and dismissal of Cabinets by the Union Government are available in abundance and such actions have invariably been upheld by superior Courts as part of a democratic process. Mr. Pirzada read out a passage from the judgment of S. Ratnavel Pandian, J. In the case of S.R. Bommai v. Union of India reported in Volume 2 of the Law Journal `Judgments Today' (I.T. 1994(2) SC 215) to show that in the neighbouring country, India, during 41 years up to 1991, the Union Government resorted to provisions of Article 356 of Indian Constitution 95 times either to dissolve or suspend the State Legislature and dismiss the Cabinets there. Mr. Pirzada contended that in a Federal democratic system it is not correct to say that when a provincial legislature is dissolved or suspended the people of the province ceased to have representation or the principle of Provincial autonomy enshrined in the Constitution is violated. Mr. Pirzada contended that despite dissolution or suspension of provincial legislature, the people of the Province could gain expression through the presence of representatives of the Province in the Central legislature. This last exposition of Mr. Pirzada seems to be based on the following observations of this Court in the case of Dorakadas v.

State PLD 1957 SC 72: "The latter section speaks of a Governor being directed to assume powers in his Province 'on behalf of the Governor-General' where the expression `Governor-General' necessarily means a Governor- General acting on the advice of his Ministers, in other words, the Central Government. Thus by the making of proclamation under section 92-A, the result created would be that the elected representatives of a Province would cease to share in the responsibility of governing the Province, and in the place of their advice tendered to the Governor through his Council of Minister, there would be substituted directions from the Central Government being in itself a representative Government chosen from among representatives elected from all Provinces including the Province to which section 92-A might for the time being remain applied. It follows that the application of section 92-A to a Province would not necessarily mean the imposition of purely authoritarian rule, for the will of the people of the Province could still gain expression through the presence of its representatives in the Central Legislature and also in the Central Cabinet."

' Mr. Pirzada compared the provisions of Article 234 ibid with Article 356 of the Indian Constitution and contended that both the Articles are similar in language and scope. Mr. Pirzada contended that Indian Supreme Court while interpreting Article 356 of Indian Constitution has held that under Article 356 of the Indian Constitution, the President has the power to dissolve the State legislature and dismiss the Cabinet. Mr. Pirzada relied on the dictum of Indian Supreme Court in the case of State of Rajasthan v. Union of India AIR 1977 SC 1361 and contended that once the President exercises his power under Article 234 ibid and dismisses the Provincial Cabinet the same cannot revive subsequently for the reason of withdrawal of the Proclamation or that the Proclamation lapses on the expiry of the period.

' Mr. Pirzada took us through the historical background of the provisions of Article 234 ibid and contended that in the Government of India Act, 1935, which served as the first Constitution, Act of the British India a provision similar to Article 234 ibid was incorporated in the form of section 93.

This provision was criticised by the politicians both from Indian Congress and Muslim League and accordingly on the eve of partition of the sub-continent, the Governor-General in exercise of his powers under section 9 of Indian Independence Act, 1947, through Governor-General's Order (G.G.O.) No,XXII of 1947 omitted section 93 from the Government of India Act. However, the necessity of having a provision similar to omitted section 93 of Government of India Act, was soon felt and accordingly, through Governor-General Order XIII of 1948 section 92-A was inserted in the Government of India Act while Quaid-e-Azam was still alive. Section 92-A was later repealed by Government of India (Amendment) Act, 1955 and section 93 was once again reinserted in the Act.

Mr. Pirzada contended that from the above-stated historical background, it is quite clear that framers of Constitution have always felt the necessity of retaining a provision similar to Article 234 ibid in a Constitution based on Federal democratic concept to safeguard against the breakdown of the democratic process. It is also contended by Mr. Pirzada that for very good reasons the exercise of power under Article 234 ibid has been kept outside the scope of judicial scrutiny as any action under such a provision of Constitution is likely to have political overtones which cannot form a proper subject of adjudication in a Court of Law.

There can be no cavil with the broad proposition convassed by Mr. Sharifuddin, that in a Constitution based on a Federal democratic concept an emergency provision of the nature of Article 234 ibid is necessary to preserve the system but the exercise of this power, which undoubtedly has a far-reaching and drastic consequences, is not left by the framers of Constitution totally unbridled and uncontrolled. The commentators on Constitutional Laws have also expressed great circumspection on the exercise of such power by a functionary vested with the discretion under the Constitution. Basu, in his commentary on Constitution of India, Volume '0'

(Silver Jubilee Edition) while commenting on possible abuses on the exercise of power under Article 356 of the Indian Constitution has commented as follows:--- "The broad category of improper use of the extraordinary power is where it is used for political purposes against a State Government which does not belong to the Part in power at the Union or to secure the purposes of that party in forming a Government of their own in a particular State, taking advantage of fortuitous circumstances.

' If that happens at the unbridled pleasure of political parties, there would be an end of democracy and Constitutional Government in India, which rests on a federal system and the existence of a responsible Government in each State, founded on free election to the State Legislature.

' The argument that the Indian Constitution does not represent a federal system (paras. 51--56) only puts the cart before the horse, because as Dr. Ambedkar said, there is a federal polity as soon as a justiciable written Constitution divides powers between two units of Government. Of course, in the Indian Constitution overriding powers are vested in the Union, to be exercised under exceptional circumstances. But, being exceptions, the exercise of such powers must be strictly limited by the conditions imposed by the Constitution in each of the exceptional circumstances. As I have said earlier, 'failure of the Constitutional machinery' means such a breakdown which calls for an immediate resort to Article 356 because the situation is such that it cannot be remedied by any other means. Hence, it would be a misuse of the power:-

(i) Where, after the resignation of a Chief Minister, the Governor recommends dissolution under Article 356, without probing the possibility of the formation of an alternative Government.

' The tenability of such action was demonstrated on the Orissa case of Bijayanada. In that case, the President's order under Article 356 was challenged by 74 out of 140 members of the Assembly who supported the claim of Bijayanda to form an alternative Government. Of course, the High Court dismissed the petition on the ground that the President's satisfaction was not justiciable (para. 27, ibid.)

(ii) If the dissolution of a State Assembly is sought on the ground that the Chief Minister belongs to a particular caste or creed.

' If a State Government is sought to be punished by repeated dissolutions of its Assembly, within a short period, by resorting to Article 356(1).

(iii) So long as the Ministry retains confidence of the majority in the State Legislature, the Governor should not resort to Article 356(1).

' An important exception to this rule is--where the Ministry enjoying the majority in the Legislative Assembly seeks to subvert the Constitution (e.g., where an anarchist Party has been voted to power and it seeks to demolish Parliamentary institutions), or where the Ministry violates some basic mandate of the Constitution (e.g., if the Chief Minister refuses to Governor to inform the Governor as required by Article 167 or refuses to advise the Governor to summon the Legislature within 6 months from the last sitting, as required by Article 174(1), and; if it is not practically possible to have an alternative Ministry to command majority in the House, the only means to save the Constitution and the Constitutional system of Government would be a resort to Art.356. Another instance of such subversion may be where a State Government enters into alliance with a foreign power.

' On the other hand, in the Author's opinion, it would be improper to unseat a State Minister commanding a majority in the Assembly, on the ground that the party to which it belongs has lost at an Union election (pp. 25-6, ante).

' Some other exceptions have been mentioned by the Andhra Pradesh High Court, viz., where a State Ministry, commanding majority in the Assembly, fails to meet an extraordinary situation, e.g., an outbreak of unprecedented violence; a great natural calamity such as a severe earthquake, a flood, or a large epidemic, which failure amounts to an abdication of its Governmental power.

' But even in such cases, the attitude of the Union Government should be one of assistance and advice rather than supersession; and the latter should be thought of only as a matter of last resort, e.g., where the State Government refuses to cooperate or flouts the directions issued by the Union Government to alleviate the distress."

Another commentator on the Constitutional Law, Mr. J.N. Pandey, in his book 'Constitutional Law of India (Seventeenth Edition), while commenting on the abuse of excess of powers under ' Article 356 of the Indian Constitution stated as under:--- "Article 356 vests a very wide sweeping emergency power in the hands of the Central Government.

It is a naked fact that the power under Article 356 has been misused on several occasions. It is, therefore, submitted that the content and scope of Article 356 must be clearly specified by appropriate Constitutional amendment so as to avoid the chances of its misuse by the Governments which might always be looking for an opportunity to get rid of an inconvenient State Governments. For this, the Janata Government restricted the scope of Article 356 in so far as the duration of the President's rule is concerned, but it has not touched this aspect of the Article which was much more serious than limiting the period of the President's rule."

From the above comments, it is quite clear that while existence of a provision in the nature of Article 234 ibid has been felt necessary in a Constitution based on Federal democratic structure but at the same time the abuse of the exercise of such powers by the functionaries vested with the discretion under the Constitution for the purposes alien to the scope of such provision cannot be ruled out totally. The superior Courts have, therefore, acted with great circumscription while examining a case of this nature in exercise of their power of judicial review and have intervened only in those cases where they discovered that the power has been exercised either outside the scope of Constitutional provisions, or it is tainted with mala fides or power has been exercised to achieve objects not contemplated by the provisions of the Constitution. In Pakistan more than one occasion, the superior Courts in exercise of their power of judicial review under the Constitution, examined the cases of dissolution of elected Assemblies under Article 58(2)(b) of the Constitution by the President of Pakistan, and on reaching the conclusion that the power was exercised outside the scope of the relevant provisions struck down the action declaring it as unconstitutional (see Federation of Pakistan v. Haji Saifullah Khan PLD 1989 SC 166 and Mian Muhammad Nawaz Sharif v.

President of Pakistan PLD 1993 SC 473. Now, 1 revert back to examine the scope of the provisions of Article 234 of the Constitution which reads as follows:--- "234.-41) If the President, on receipt of a report from the Government of a Province of otherwise, is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed at a joint sitting shall, by Proclamation--

(a) assume to himself, or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than the Provincial Assembly;

(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the authority of (Majlis-e-Shoora (Parliament)); and

(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the. Proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to anybody or authority in the Province: ' Provided that nothing in this Article shall authorise the President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the power vested in, or exercisable by, a High Court, or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Court.

(2) The provisions of Article 105 shall not apply to the discharge by the Governor of his functions under clause (1).

(3) A Proclamation issued under this Article shall be laid before a joint sitting and shall cease to be in force at the expiration of two months, unless before the 'expiration of that period it has been approved by resolution of the joint sitting and may be like resolution be extended for a further period not exceeding two months at a time; but no such Proclamation shall in any case remain in force for more than six months.

(4) Notwithstanding anything contained in clause (3), if the National Assembly stands dissolved at the time when a Proclamation is issued under this Article, the Proclamation shall continue in force for a period of three months but, if a general election to the Assembly is not held before the expiration of that period, it shall cease to be in force at the expiration of that period unless it has earlier been approved by a resolution of the Senate.

(5) Where by a Proclamation issued under this Article it has been declared that the powers of the Provincial Assembly shall be exercisable by or under the authority of (Majlis-e-Shoora (Parliament)), it shall be competent---

(a) to (Majlis-e-Shoora (Parliament)) in joint sitting to confer on the President the power to make laws with respect to any matter within the legislative competence of the Provincial Assembly;

(b) to (Majlis-e-Shoora (Parliament)) in joint sitting, or the President, when he is empowered under paragraph (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Federation, or officers and, authorities thereof;

(c) to the President, when (Majlis-e-Shoora (Parliament)) is not in session, to authorise expenditure from the Provincial Consolidated Fund, whether the expenditure is charged by the Constitution upon that fund or not, pending the sanction of such expenditure by (Majlise-Shoora (Parliament)) in joint sitting; and

(d) to (Majlis-e-Shoora (Parliament)) in joint sitting by resolution to sanction expenditure authorised by the President under paragraph (c).

(6) Any law made by (Majlis-e-Shoora (Parliament)) or the President which (Majlis-e-Shoora (Parliament)) or the President would not, but for the issue of a Proclamation under this Article, have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the proclamation under this Article has ceased to 1?e in force, except as to things, done or omitted to be done before the expiration of the said period."

On a careful reading of the above provisions, it is quite clear that the President may exercise his power to issue the Proclamation under Article 234 ibid either on receipt of a report of the Governor of a Province or otherwise, he feels satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution; or, when the two houses of Parliament in a joint sitting pass a resolution to that effect. In the first case the President acts in his discretion while in the latter the President has no option but to issue a Proclamation. Two consequences flow from the issue of the Proclamation under Article 234 ibid. The first effect of the Proclamation is that the President may either assume to himself or direct the Provincial Governor to assume on his behalf all or any of the function of the Provincial Government.

The second effect produced by the Proclamation is that the functions of Provincial Assembly are assumed by the Parliament. To give effect to the above two consequences of Proclamation, the President is further authorised to make any incidental or consequential provision which may include suspension in whole or in part the operation of any provision of the Constitution relating to anybody or authority in the Province. The Proclamation issued by the President remains operative only for a period of two months from the date of its issue. However, the operative period of the Proclamation may be extended successively for further periods not exceeding two months at a time subject to a maximum period of six months, through resolution of joint sitting of Parliament, before expiry of each two months' period. From the nature of the action contemplated under Article 234 ibid, I am of the view that the Proclamation under Article 234 ibid has only temporary effect and is not intended to create an irreversible or irretrievable situation. The suspension of Provincial Assembly or the 0. Supersession of Provincial Cabinet under the Proclamation issued by the President under Article 234 ibid therefore, in my view is co-extensive to the life of Proclamation and as soon as Proclamation is withdrawn or it lapses on expiry of the period fixed in Constitution, the Provincial Assembly as well as the Provincial Cabinet stand revived. The President, therefore, cannot dismiss the Chief Minister and the Provincial Cabinet in exercise of his power under Article 234 ibid as this step neither falls in the category of incidental nor consequential provisions for giving effect to the Object of Proclamation. Mr. Pirzada, the learned counsel for respondents 1 and 2, however, after Comparing the provisions of Artist 234 ibid with Article 356 of the Indian Constitution, has argued that the President under Article 234 ibid has, the power to dissolve the Provincial Legislature and also to dismiss the Provincial Cabinet. Reliance has been placed by Mr. Sharifuddin on Rajisthan's case (supra) in support of his arguments. No doubt, the Indian Supreme Court has expressed the view in Rajisthan's case (supra) that the President in India has power under Article 356 of Indian Constitution to dissolve a State legislature and also dismiss the Cabinet there. The view expressed by the Indian Supreme Court in Rajisthan's case (supra) has, however, been criticised by the Constitutional writers of eminence in India. Basu, in his celebrated Constitutional treatise `Constitution of India' (Silver Jubilee Edition) has commented on the judgment in Rajasthan's case (supra) as follows:- "This author, however, has not been able to persuade himself to agree with the foregoing conclusion and in several of his writings has given elaborate reasons for his dissent. It would be needless to reiterate those reasons at length; it would suffice to refer to the main points why the Rajasthan view is not acceptable:

(a) The Constitution prescribes separate jurisdiction, functions and elections for the Union and State Governments and the verdict of the electorate in respect of one of them need not necessarily decide the fate of the other.

(b) Under the Indian Constitution, the power to dissolve a State Assembly is vested in the Governor (Article 174(2)(b), acting on the advice of the Council of Ministers of the. State (Article 163(1)) and not in the President acting on the advice of the Union Ministry. Any attempt on the part of the latter to do so would not be a 'sparing use' (p.27, ante) of the drastic remedy of Article 356. If the ruling Party has lost the confidence of the State electorate as expressed at an election to the Union Parliament, the State Government should be allowed to have its natural death. It was not such an imminent breakdown of the Constitutional machinery that the Union Government should take steps for the immediate removal of the State Government.

(c) If the Governor could not, in exercise of his power under Article 174(2)(b), dissolve the State Assembly on the ground that the ruling Party had lost at the Union election, how could the President do that, by acquiring the Governor's power through the medium of Article 356(1)(a)?

(d) In fact, Bhagwati and Gupta, JJ., in the Rajasthan case, accepted the foregoing propositions in sp many words (para. 147): we have no doubt at all that merely because the ruling party in a State suffers defeats in the elections to the Lok Sabha or for the matter of that, in the Panchayat elections, that by itself can be no ground for saying that the Government of the State cannot be carried on in accordance with the provisions of the Constitution. It is also not an unusual phenomenon that the same electorate may elect a majority of members of one party to the Legislative Assembly, while at the same time electing a majority of members of another party to the Lok Sabha .The defeat would not necessarily in all cases indicate that the electorate is no longer supporting the ruling party, because the issue may be different it may be noted that the Constitution does not provide for a right of recall....In the absence of such provision, the defeat of the ruling party in a State at the Lok Sabha elections cannot by itself, without anything more, support the inference that the Government of the State cannot be carried on in accordance with the provisions of the Constitution."

' In their Lordships' opinion, however, all the foregoing considerations of prudence would be washed away in case the defeat was 'crushing' or a 'total rout' of the ruling party in the State (para.147).

' If so, the question boils down to one of degree. But then, who is to decide upon this test of degree and where to draw the line. If it can be applied (i) where not a single candidate of the ruling party is returned and (ii) the decision of the ruling party at the Union level is non-justiciable, but overwhelmingly alarming, e.g., where out of 10 candidates, 9 are defeated.

(e) The majority Judges in the Rajasthan case opined that in a case of patent loss of confidence of the State electorate, the State Government is most likely to be faced with popular resistance so as to make it impossible for ruling party to carry on the Government of the State in accordance with the Constitution.

' In a case like this, the Union Government should properly wait for such an unfortunate situation to actually take place instead of resorting to the drastic remedy of Article 356 in anticipation of the occurrence of the malady.

(f) The Court was prompted by the consideration of ensuring stability in the administration of the States concerned. But that its thesis was unsound was proved by the course of events are long.

While in 1977 it was the Janata Party which applied Article 356 in the 9 States on the ground of defeat of the Congress (I) Party at the Lok Sabha election, the same fate hit the Janata Party in those very 9 States and the Congress (I) Party's Government at the Union applied Article 356 in those 9 States.

(g) In the Rajasthan case, the Court had to struggle against the bar imposed upon judicial review by the old clause (5). Now that bar has been lifted the Judges of a future Court might possibly be bolder to hold that at the back of a Union Government to drag down an anti-party Government in a State in the name of democracy (for failure at a Parliamentary election) lay the motive of pulling down the State Government merely because they belonged to another party. That is the verdict to a discerning reader of the converse episodes relating to the 9 States which has just been referred to."

' I may also mention here that in a later decision by the Indian Supreme Court the case of S.R.

Bommai and others. Etc. Etc. v. Union of India and others etc. Etc. (JT 1994 (2) SC 215), Rajasthan's case was not followed strictly. Be that as it may, in my humble opinion the Indian Constitution does not contain a provision similar to Article 112 of the Constitution which has an important bearing on the interpretation of the scope of Article 234 ibid. It is well-established principle of interpretation that if an Act contains two separate provisions dealing with two distinct situations, each provision operates in its allotted field independently. Article 112 of the Constitution enumerates the circumstances in which a Provincial Assembly can be dissolved by the Governor. It reads as follows:--- "112.--(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 or 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.

(2) The Governor may also dissolve the Provincial Assembly in his discretion, but subject to the previous approval of the President, where, in his opinion---

(a) a vote of no-confidence having been passed against the Chief Minister, no other member of the Provincial Assembly is likely to command the confidence of the majority of the members of the Provincial Assembly in accordance with the provisions of the Constitution, as ascertained in a session of the Provincial Assembly summoned for the purpose; or

(b) a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary."

I have not been able to discover anything in the language of Article 234 ibid which could justify the conclusion that the President while exercising power under this Article can dissolve the Provincial Assembly or dismiss the Provincial Cabinet. The framers of the Constitution having specifically mentioned under Article 112 of the Constitution, the circumstances under which a Provincial Assembly can be dissolved, we cannot on any known principle of interpretation read into Article 234 of the Constitution, which does not deal with the dissolution of Assembly, the power of the President to dissolve the Provincial Assembly. As I have already reached the conclusion that the Proclamation issued by the President under Article 234 ibid was only a temporary measure which lasted only for the period specified in the Constitution, I am unable to accept the contention of Mr. Pirzada that dismissal of Provincial Assembly of N.-W.F.P. By the President through Proclamation dated 25-2-1994 may be treated within the scope of incidental and consequential measures contemplated in Article 234(1)(c) of the Constitution. An incidental or consequential measure cannot possibly go beyond the effect of the main action. Mr. Sharifuddin Pirzada, the learned counsel for respondents 1 and 2 also contended that the satisfaction of President before issuance of Proclamation under Article 234 ibid with regard to the existence of the condition in which the Government of Province cannot be run in accordance with the provisions of the Constitution, is subjective in nature which cannot be brought under challenge before any Court. Mr. Khalid Anwar, the learned counsel for the petitioner, on the other hand contended that in view of the decision of this Court in Haji Saifullah's case (supra), Kh. Ahmed Tariq Raheem v. Federation of Pakistan and Mian Muhammad Nawaz Sharif's case (supra), the argument that the 'satisfaction' of the President with regard to the existence of situation contemplated under Article 234 ibid is subjective is no more available. Mr. Khalid Anwar contended that the word `satisfied' used in Article 234 ibid is much stronger in import as compared to expression 'opinion' used in Article 58(2)(b) ibid., but in spite of use of a word of lesser import in Article 58(2)(b) ibid, this Court held in the case of Haji Saifullah (supra) that opinion of the President formed under Article 58(2)(b) of the Constitution before ordering dissolution of Assembly, has to, be objective.

' The rule laid down by this Court in Haji Saifullah's case (supra) was reiterated with approval in Mian Muhammad Nawaz Sharifs case in the leading judgment of Nasina Hassan Shah, CJ., as follows: "This Court, in Haji Muhammad Saifullah's case PLD 1989 SC 166 after a close analysis of this provision, in the light of the relevant background, held, that if it could be shown that no grounds existed on the basis of which an honest opinion could be formed 'that a situation had arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary' the exercise of the power would be unconstitutional and open to correction through judicial review. As the examination of the grounds of the order of dissolution passed by the President on 9th May, 1988 revealed that the pre- requisites prescribed for the exercise of the powers conferred by Article 58(2)(b) did not exist, the said action was found to be unlawful."

' Shafiur Rahman, J., another member of the Bench which decided the case of Mian Muhammad Nawaz Shard (supra) expressed on' the scope of `opinion' to be formed by the President under Article 58(2)(b) (supra), as follows:--- "The word 'transparency' in administration or privatization is a word very pleasing to the ear and very impressive to find established in a society. Where freedom to obtain information does not exist, where secrecy of all financial transactions including the declaration of assets by the public office holders is the order of the day to expect transparency and make it a ground for taking action under Article 58(2)(b) of the Constitution would be far-fetched, a matter of degree and quite unjustified. It is a vague criteria, not referable to any statutory provision and will make the satisfaction of the empowered authority subjective and not objective. This Court has already held that the requirements of Article 58(2)(b) of the Constitution are all objective and relatable to the various Constitutional provisions."

(The underlining is my own).

In view of the above, discussed legal position, I am of the view that the satisfaction of the President under Article 234 ibid with regard_ to the existence of a situation in which the Government of the Province cannot be run in accordance with the provisions of the Constitution cannot be treated subjective. The satisfaction of the President in this regard must be based on existence of, objective conditions justifying issue of Proclamation under Article 234 ibid. However, the Court while examining the material used by the President in forming his satisfaction as to the existence of conditions mentioned in Article 234 ibid cannot sit as a Court of Appeal and inquire into sufficiency or 'otherwise of the material. If the Court finds that the material used by the President in arriving at his satisfaction bears nexus to the objects of Article 234 ibid it cannot interfere with the Proclamation on the ground that there was not sufficient material before the President to express his satisfaction with regard to the existence of conditions which would justify issuance of Proclamation under Article 234 ibid. ' Mr. Khalid Anwar has contended that the proclamation issued under Article 234 ibid is liable to be struck down in its entirety as the respondent has failed to establish that on the date of issuance, of proclamation by the Presideni a situation had arisen in which the Provincial Government of N.- W.F.P. Could not be carried on in accordance with the provisions of the Constitution. Mr. Khalid Anwar, in this connection, referred to the observations made by me in the case of Mian Muhammad Nawaz Sharif (supra) and contended that the expression "the Govenment of the Province cannot be carried on in accordance with the provisions of the Constitution", means a total breakdown of the machinery of the Provincial Government or a continued and persistent failure of the Government to follow the Constitution. The contention of Mr.. Khalid Anwar does not seems to be correct. In a Parliamentary democracy, a party is entitled to form its Government and rule the country so long it enjoys the support of the majority of the members of the Assembly. The rule of majority is the essence of the Parliamentary democracy. I have earlier mentioned in this judgment the strength of Various political parties/groups and the Independent in the Assembly. From the strength of each political party in the Assembly, it is quite clear that none of the major political parties was in a position to form a Government on the basis of its sole strength in the Assembly.

However, P.M.L. (N) and A.N.P., who were partners during the general elections, formed a. Coalition Government in the Province 'with the help of Independent members and some smaller groups in the Assembly. There is enough material on record to show that the several independent members who had joined the Cabinet of petitioner subsequently resigned and two members of the petitioner party (PML 'N') also allegedly defected to opposition camp in the Assembly. The opposition group in the Provincial Assembly of N.-W.F.P. Claimed that they had support of 43 members including two alleged defectors of P.M.L. (N). It has also come on record that the No-Confidence Motion moved by the opposition in the Assembly against the ruling coalition Government of the petitioner could not be carried through in the session summoned by the Speaker on 23-2-1994, because of a rampus created in the Assembly on account of the ruling of Speaker which declared the two alleged defectors of P.M.L. (N) as strangers to the House and were thus prevented from participating in the proceedings of the Assembly. After failure of No-Confidence Motion against the petitioner as stated above, the Speaker adjourned the session of the Assembly to 31-3-1994. It was in this background that respondent No,4 asked the petitioner to seek a vote of confidence as in his opinion the petitioner was not enjoying support of the majority of the members of the Assembly. To give effect to his direction respondent No,4 asked the Secretary of the Assembly to convene a session of the Assembly on 26-2-1994. However, the Secretary expressed his inability to summon the session on 26-2-1994 as it already stood adjourned to 31-3-1994. The Governor, therefore, requested the Speaker of the Assembly to summon the session but he also declined and took the plea that until the session summoned by him under Article 54(3) of the Constitution was prorogued no fresh session of the Assembly could be summoned by respondent No,4. The Governor having failed to receive positive response to his request, reported the matter to the President of Pakistan who on the advice of Prime Minister issued the Proclamation under Article 234 ibid on 25-2-1994.

Keeping in view the strength of M.P.As. Belonging to P.M.L. (N) and A.N.P. In the Assembly and the events which took place in the Assembly on 23-2-1994, the assumption on the part of respondent No,4 that the petitioner no more enjoyed the support of the majority of the members of the Assembly and, therefore, in order to establish his claim that he still enjoyed support of the majority of the members of the Assembly, he should seek a vote of confidence in the session of Assembly called on 26-2-1994, was neither unreasonable nor mala fide. However, this move of respondent No,4 was frustrated by the Speaker by refusing to summon the session of the Assembly on 26-2- 1994, which was considered as the violation of Constitutional provisions. Mr. Khalid Anwar, the learned counsel for the petitioner, however, contended that as the Speaker had already summoned the session of the Assembly under Article 54 (3) ibid, which after meeting on 23-2-1994 stood adjourned to 31-3-1994, therefore, on the date respondent No, 4 asked for convening of the session of the Assembly on 26-2-1994, the Assembly was already in session. According to Mr. Khalid Anwar, unless the session of the Assembly summoned under Article 54(3) ibid was prorogued by the Speaker, respondent No,4 could not direct summoning of a fresh session of the Assembly. The argument of the learned counsel for the petitioner does not appear to be correct. Article 54(1) of the Constitution vests the Governor with the power to summon the session of Assembly from time to time and also to prorogue it on the advice of Chief Minister. Sub-clause (3) of Article 54 ibid vests an independent power in the Speaker of the Assembly to summon the session of the Assembly on a requisition signed by not less than 1/4th of the total members of the Assembly, within 14 days of such requisition. The session summoned by the Speaker under sub-clause (3) of Article 54 ibid could only be prorogued by the Speaker. Apart from the provisions of Article 54(1) and (3) ibid, which I have just referred, the Governor of the Province has also power to summon the session of the Assembly under Article 130(5) ibid, which reads as follows:--- "130..............

(5) The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his power under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly, in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly)."

It is to be noted that power to summon the Assembly under sub-clause (1) of Article 54 ibid is exercised by the Governor only on the advice of the Chief Minister, whereas while summoning the Assembly under Article 130(5) ibid requiring the Chief Minister to seek a vote of confidence from the Assembly, the Governor has not to seek any advice of the Chief Minister. Therefore, in my view the power of the Governor to summon the Assembly under Article 130(5) ibid is a separate and distinct power under the Constitution independent of his power under Article 54(1) ibid. There is nothing in the language of Article 54 ibid to suggest that the power of the Governor under Article 130(5) ibid is overridden or controlled by the provisions of Article 54 ibid. I am, therefore, of the view that the failure on the part of the Speaker to summon the Assembly on 26-2-1994 as desired by respondent No,4 amounted to his failure to abide by the Constitutional provisions. This failure on the part of Speaker created a Constitutional deadlock as there was no way left to ascertain whether the petitioner enjoyed the support of the majority of the MPAs in the Assembly. In these circumstances, the recommendations of the Governor to the President to issue a Proclamation under Article 234 of the Constitution could neither be described as illegal nor mala fide.

' In view of the above discussion while I hold that the part of Proclamation issued under Article 234 ibid by the President of Pakistan on 25-2-1994 directing the Governor to assume on his behalf the functions of the Government of N.-W.F.P. And declaring that all powers of the Provincial Assembly shall be exercised by or under the Authority of Majlis-e-Shoora (Parliament), did not suffer from any Constitutional infirmity, the Proclamation to the extent it purported to declare that the Chief Minister and the Provincial Ministers shall forthwith cease to hold offices even after expiry of the period of the Proclamation, was clearly in excess of the authority vested in the President under Article 234 of the Constitution and, therefore, to this extent it is declared as without lawful authority and of no legal effect. The petition was disposed of by a short order, dated 21-4-1994 and the above are the detailed reasons for the short order.

(Sd.)

SAEEDUZZAMAN SIDDIQUI, J.