' QAZI MUHAMMAD FAROOQ, J.--The National Assembly of Pakistan was dissolved by the President of Pakistan on 5th November, 1996 by an order passed under Article 58 (2)(b) of the Constitution of the Islamic Republic of Pakistan which also directed that the Prime Minister and her Cabinet shall cease to hold office forthwith. On the eventful day Major-General (Retd.) Khurshid Ali Khan was the Governor, N.-W.F.P. He reportedly resigned and as a stopgap arrangement Hon'ble the Chief Justice, Peshawar High Court was appointed as the Acting Governor. The interim arrangement continued up to 11th November, when Lt.-Gen. (Retd.) M.Arif Bangash was appointed as the Governor. The newly appointed Governor took oath of office on the very day of his appointment and on the following day i,e, 12th November, 1996 dissolved the Provincial Assembly, N.-W.F.P., with the previous approval of the President of Pakistan, in exercise of the powers conferred on him by clause (2)(b) of Article 112 of the Constitution as in his opinion a situation had arisen in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate had become necessary. Simultaneously, it was ordered that the Chief Minister and the members of his Cabinet shall cease to hold office forthwith.
The said order was gazetted as Notification No, Legis. 4 (1)/77-Vol. II/7726. It is worded thus:-- "GOVERNMENT OF N.-W.F.P.
LAW, PARLIAMENTARY AFFAIRS AND HUMAN RIGHTS DEPARTMENT NOTIFICATION ' Peshawar dated the 12th November, 1996.
' No, Legis.4(1)77-Vol.II/7726.--The following Order by the Governor of the North-West Frontier Province is hereby published for general information:--
' Whereas, in accordance with the provisions contained in clause (2)(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, the Governor of a Province may dissolve the Provincial Assembly in his discretion but subject to the previous approval of the President, where, in his opinion, 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; ' And whereas I, as Governor of the North-West Frontier Province, have given serious consideration to the situation prevailing in the Province, and having done so, am of the opinion that such a situation has arisen and an appeal to the electorate is necessary due to the reasons amongst others, as mentioned below:
(1) None of the Political Parties including the P.P.P., has a clear cut majority in the Provincial Assembly, therefore, the coalition Government was formed with PML(J),JUI(F) and other independent members of the Assembly through horse-trading.
(2) The slim majority of the Government in the Assembly provided undue opportunities of illegal practices to the members of the Provincial Assembly, which resulted in widespread malpractices in the affairs of the Province, and which led to the violation of the terms of oath taken by the said members under Article 132(2) of the Constitution of Pakistan.
(3) Some instances of indulgence in nepotism, favoritism and corruption on a mass scale by the Ministers and members of the coalition Government are cited below:---
(i) One of the ministers got prepared tribal domicile certificates for his children through undue pressure which were later found to be bogus, while another transferred 120 officers in violation of Rule 5 and Rule 7 of the Rules of Business of the N.-W.F.P. Government. In yet another case more than 80 officers were transferred without following the N.-W.F.P. Government's rules.
(ii) Contracts were given to relatives and close friends.
(iii) Government rest houses were misused.
(iv) Even the son of a minister interfered in administrative matters and maltreated a senior Government functionary.
(v) Properties of the Local Government Department and C&W Department were transferred to the relatives and favourites of the ministers and members of the Assembly.
(vi) In the purchase of ambulances public funds were embezzled and misappropriated.
(vii) Shady and unfair practices by the minister have been pointed in writing by a donor agency of a friendly country.
(viii)Another minister has unlawfully retained more than 80 bulldozers to work on his own land and those of his supporters.
(ix) A sum of more than Rs,30 million is outstanding for the use of bulldozers by the Ministers and M.P.As.
(x) 500 pumping sets on open wells in N.-W.F.P. Were distributed in violation of the rules and the instructions on the subject.
(4) In spite of clear-cut directions, many ministers and members belonging to the Assembly intentionally avoided to declare their assets in violation of the law and the rules.
(5) Minister and members of the coalition Government openly interfered in matters relating to appointments, postings and transfers in all departments, and agencies of the Government, including the civil administration and the law enforcing agencies in their respective areas. The scale of interference is so massive that public faith in the integrity of the Government departments and institutions has been completely eroded. In fact the vacancies in various Government departments and institutions stand distributed between the ministers and members of the coalition Government, who have inducted their own recommenders regardless of merit. This unlawful practice continued despite the judgment of the Supreme Court, in case cited as 1993 SCMR page 1287 and the D.O. Letter No,2-3/SECY(P)96, dated 15th October, 1996 from the President of Pakistan addressed to the Governor N.-W.F.P. And brought to the notice of the Chief Minister, N.- W.F.P..
(6) Each member of the coalition Government has become the executive authority in his local area. The members of the Provincial Assembly have usurped the function of the executive in matter of recruitment, postings and transfers of the administrative functionaries, thus violating the very basic provision of the Constitution dealing with the separation of the legislative from the executive.
(7) The funds of the various local councils in the province have been misused and in many cases embezzled and misappropriated by ministers and members of the coalition Government. The funds of district councils are distributed amongst M.P.As. To ensure their loyalties, in violation of the law and rules. This practice is also against the provisions of Article 32 of the Constitution of Pakistan.
(8) N.-W.F.P. Is a small Province with limited resources. However, the Provincial Government was formed with a massive cabinet with ever increasing expenditures on the large army of ministers, advisors and special assistants thus eroding the narrow financial base of the Province. The ministers and members of the coalition Government instead of working for the betterment of the Province and in fulfilment of their oath under the Constitution are promoting their own interests by increasing their privileges and fringe benefits. The expenditures of the Provincial Government on their upkeep have thus increased massively to Rs,49.537 million during the year 1996-97 so far.
(9) Government high-ups have been implicated in the enquiry dealing with the Mehran Bank case.
A Commission appointed to probe into the matter has submitted its report which is pending with the Federal Government for initiation of action.
(10)The cabinet members and member of the Provincial Assembly indulged in manipulation of prices in acquisition proceedings of land for public purpose. Similarly residential plots have been allotted in housing schemes in a shady manner. In many cases plots were created in violation of the approved plans to gratify the members of the Provincial Assembly.
(11) The Provincial Assembly cleverly devised measures to usurp the executive authority of the province in violation of Articles 129, 141 and 142 of the Constitution. They formed a committee to check the progress of implementation of resolutions and recommendations of the Provincial Assembly involving administrative matters. Committee of the Provincial Assembly assumed to themselves suo motu jurisdiction instead of the Provincial Assembly, thus posing to be superior to the Assembly itself.
(12) In total disregard to the provisions of Article 131 read with the Government of N.-W.F.P. Rules of Business and the N.-W.F.P. Provincial Assembly Rules of Conduct of Business, the Provincial Government avoided to communicate proposals for Legislation to the Governor before these were sent to the Provincial Assembly. The Speaker and the Assembly deprived the Governor of his right to have an opinion of the concerned department on matters, in violation of the past practice and the relevant rules.
(13) The members of the Provincial Assembly interfered in executive matters to the extent that they passed resolutions involving financial matters. For instance in one case, the Assembly resolved that one self-occupied residential accommodation, should be exempted from payment of urban property tax, irrespective of the size and structure of the residential accommodation. This violates Article 115(2) of the Constitution.
(14) After the dissolution of the National Assembly by the President of Pakistan on 15th November, 1996 the Chief Minister and cabinet of ministers stopped attending their offices, and consequently, brought the administration of the Province to a standstill. They started maligning the President and incited the people against the Constitutional Order of the President by making provocative statements not only violated their Constitutional duties but tried to create a law and order situation. The Province today is thus suffering from break down of the Constitutional machinery where the Government has come to a standstill.
(15) The administration of the affairs of the Government in accordance, with the law and rules has been rendered impossible by corruption, nepotism, illegalities, and an administrative vacuum. The public has lost faith in the honesty and integrity of the members of the Government and in the Assembly. The Government, has as a result forfeited its mandate because it has deliberately indulged in acts and practices violative of Constitutional provisions relating to good governance and the rule of law and the oath of their office.
' The public is unanimous in its demand for accountability of public office holders. In pursuance of their demands the public has taken out processions and held large meetings to express their discontentment.
' And whereas the President of Pakistan, in accordance with the provisions contained in clause (2)
(b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, has been pleased to grant his approval to the dissolution of the Provincial Assembly of the North-West Frontier Province in the abovementioned circumstances.
' Now, therefore, in exercise of the powers conferred by clause (2) (b) of Article 112 of the Constitution of the Islamic Republic of Pakistan, I, Lt.-Gen. (Retd.) M. Arif Bangash, Governor of the North-West Frontier Province, in my discretion, but with previous approval of the President, do hereby dissolve the Provincial Assembly of the North-West Frontier Province for the reasons mentioned above, with immediate effect.
' Consequent upon the dissolution of the Provincial Assembly as aforesaid, the Chief Minister and the Cabinet of Ministers of the Province cease to hold office forthwith.
' Dated Peshawar the 12th November, 1996 Lt.-Gen. (Retd.) M. Arif Bangash GOVERNOR ' North-West Frontier Province."
2. The Constitutional validity of the above order was challenged by Mr. Abdul Akbar Khan, Speaker of the defunct Provincial Assembly, N.-W.F.P. (hereinafter referred to as the Assembly) as well as Mr. Aftab Ahmad Khan Sherpao, ex-Chief Minister, through two identical Writ Petitions bearing Nos.1281 of 1996 and 1282 of 1996 respectively. It was prayed in both the petitions that the impugned order may be declared as without lawful authority and of no legal effect and the Assembly may be restored. An additional prayer was made in Writ Petition No,1282 of 1996 that the petitioner may be reinstated as the Chief Minister along with his Cabinet. This common judgment shall dispose of both the petitions.
3. Details apart, the impugned order has been challenged in the writ petitions on the following grounds:--
(i) The former Governor N.-W.F.P. Major-General (Retd.) Khurshid Ali Khan, who had resigned soon after the dissolution of the National Assembly, was fully satisfied with the performance of the Government and the Assembly and had never criticised the manner of governance or pointed out any impropriety, corruption, maladministration and financial irregularity.
(ii) Lt.-Gen. (Retd.) M. Arif Bangash was appointed as the Governor, N.W.F.P. Subject to the condition that he will dissolve the Assembly and dismiss the Government. He had accomplished the task assigned to him by the President of Pakistan within 24 hours of his appointment and taking Oath of Office by issuing the impugned order. The reports published in this respect in the newspapers were not contradicted. The exercise of powers under Article 112(2)(b) of the Constitution was thus mala fide and colourable.
(iii) There was neither any material before the Governor nor time for forming an opinion objectively that a situation had arisen in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary.
The impugned order was passed without application of mind on the basis of a malicious and questionable charge-sheet prepared by the Chief Secretary.
(iv) The grounds for dissolution of the Assembly given in the impugned order were unfounded, fallacious and perverse. The Government was not formed through horse-trading but by means of coalition and support of independent members which is not an unusual phenomenon in a democratic set-up. The Chief Minister, the members of his Cabinet and other members of the Assembly had neither violated the Oath taken by them nor had resorted to any malpractice or indulged in nepotism, favouritism or corruption. The Tribal domicile certificates obtained by a Minister for his children were cancelled by the Government and the matter was sub judice before the Peshawar High Court. The allegation of awarding contracts to relatives and friends was vague and baseless. The allegation of misuse of Government Rest Houses was equally vague and capricious. As a matter of fact the Chief Minister had issued specific directions for proper use of the Frontier House, Islamabad. The confrontation between the son of a Minister and a senior Government functionary was a trivial dispute between two individuals which had ended in a compromise. The alleged transfer of property of Local Government and C&W Departments had never taken place. The Ambulances were purchased through a purchase committee formed under the rules of which the Minister concerned was not a member. The allegation based on the letter of a donor Agency was vague and misconceived in that neither the particulars of the Project nor the name of the donor agency was mentioned therein. No bulldozer was ever retained by any Minister for private use. The bulldozers were used in accordance with the rules and the allegation with regard to the outstanding amount for the use of the same was self-defeating. No Pumping set was ever distributed in violation of the rules. The issue of non-declaration of assets was a matter between the members of the Assembly and the Election Commission of Pakistan and had no concern with the Government. All appointments, postings and transfers of civil servants were made by the competent authorities in accordance with law and the rules and no interference was ever made in these matters by the Ministers or the members of the Assembly. Funds of the Local Councils in the Province were not misused, embezzled or misappropriated by the Ministers and members of the coalition Government. Numerical strength of the Ministers was, increased to ensure good governance and at no stage the former Governor had joined issue with the Chief Minister on the induction of a Minister in the Cabinet. The implication of the Government high-ups in Mehran Bank scam was imaginary. The prices of the land acquired for public purpose were not manipulated but were fixed in accordance with the procedure prescribed by the Land Acquisition Act which also provides remedial measures. No committee was ever formed to monitor the implementation of resolutions or recommendations of the Assembly and the proposals for legislation were invariably communicated to the Governor. The members of the Assembly had never interfered in the executive matters. The ex-Chief Minister and the members of his Cabinet had performed their duties till the dissolution of the Assembly despite the fact that after the dissolution of the National Assembly their offices were locked and their Telephones were abruptly disconnected under the Orders of the Chief Secretary. The ex-Chief Minister had not only called on the President in his official capacity but had also signed official correspondence until 11th November, 1996.
(v) The Government was being carried on in accordance with the provisions of the Constitution and there was neither any Constitutional deadlock nor the machinery of the Government had broken down completely or its authority eroded, The grounds of dissolution thus had no nexus with the pre-conditions for exercise of power by the Governor under Article 112(2)(b) of the Constitution and also offended against the law laid down by the Supreme Court of Pakistan in a number of leading cases.
4. Exhaustive written statements were submitted by respondents Nos.2 and 3 namely the Governor, N.-W.F.P. And the Province of N.-W.F.P. Wherein the allegations made in the writ petitions were denied and the impugned order was ardently defended. It was contended, inter alia, that the petitioners had got no locus standi to file the petitions, the petitions were vague and did not contain the particulars of the alleged mala fides, the so-called mala fides were devoid of substance, the Governor had asked for and was given an extensive briefing by the Administration and all relevant and pertinent facts and material were placed before him and after considering the same objectively he had passed the impugned order, the Constitution does not provide any period of time in which an opinion is to be form d by the Governor for the purpose of exercise of discretion under Article 112(2)(b) of the Constitution, the Government of the Province was not being carried on in accordance with the provisions of the Constitution and the impugned order was in conformity with the provisions of Article 112(2)(b) of the Constitution, the adequacy or sufficiency of the grounds for dissolution of the Assembly were not justiciable, the sacked Chief Minister had formed the Government through horse-trading and had converted a thin minority into a razor thin majority and in order to maintain the same had along with the members of his Cabinet and other members of the Assembly supporting him indulged in blatant corruption, nepotism, favouritism, maladministration and betrayed the mandate of the electorate, at the outset two members of the Assembly Shad Muhammad Khan and Syed. Akhtar Hussain Shah were seduced into changing their loyalties and eight independent members were bribed to change their allegiance but when all of them got their choice ministerial portfolios five more members of the Assembly namely Javed Iqbal Khan, Ghani Dad Khan, Haji Munsif Khan, Abdul Sattar Khan and Muhammad Didar Khan also defected for patently ulterior motives, the -Governor was bypassed in the process of legislation, the Legislature had assumed the role of the Executive, the machinery of the Government had broken down completely, no Press statement was given by the Governor and veracity and accuracy of the newspaper clippings relied upon by the petitioners was questionable and that an appeal had already been made to the electorate and the people had geared themselves for the elections, therefore, the electoral process may not be stopped. As many as 22 Files, marked 'A' to 'Z'-AA', containing several documents were annexed with the written statements.
5. The Federation of Pakistan also filed written statements in both the petitions wherein allegations made in the writ petitions were controverted and it was contended that the approval by the President to the dissolution of the Provincial Assembly was Constitutionally valid and bona fide and was accorded as the provisions of Article 112(2)(b) of the Constitution were fully attracted. It was further submitted that the Federation of Pakistan was not a necessary or proper party, the validity of the approval given by the President cannot be called in question on any ground whatsoever and that the National interest would be better served by a recourse to the electorate than by restoration of the dissolved Assembly.
6. The President of Pakistan and the Governor, N.-W.F.P. Were arrayed as respondents in both the petitions. At the preliminary stage of the proceedings two C.Ms, (Nos.1693 and 1669 of 1996) were moved for deletion of their names from the panel of the respondents on the ground of Constitutional immunity envisaged by Article 248 of the Constitution but the same were not allowed in view of the allegations concerning mala fides of fact and of law and the observations made in Amanullah Khan v. Federation of Pakistan PLD 1990 SC 1092 that if mala fides of fact are pleaded then the person concerned must be impleaded as a party in spite of the protecting provisions of the Constitution. Thereafter, written statements were filed on behalf of the President of Pakistan wherein the contentions raised in the written statement filed by the Federation of Pakistan were reiterated and the allegations that the appointment of the Governor was made conditional upon his agreement to dissolve the Assembly and that the Chief Secretary of the Province had been directed to prepare a charge-sheet against the Provincial Government were categorically denied. It was also added that the approval was accorded in view of the soundness of the opinion formed by the Governor.
7. The Governor, N.-W.F.P. Had already filed written statements in both the petitions. However, after dismissal of the aforementioned C.Ms. Another written statement was filed on his behalf in Writ Petition No,1281 of 1996 wherein the allegations made in the writ petition were vehemently denied and termed as baseless, false and frivolous. It was added that no official Press statement, as claimed in the petition, was ever made and the opinion in the matter of dissolution of Assembly was formed after going through the material and receiving full briefing and information from responsible officers serving in the Province and application of independent mind.
8. Rejoinders were filed by both the petitioners to the written statements filed by respondents Nos.2 and 3. The Speaker in his rejoinder raised an additional allegation that the present Governor had not legally entered upon office as he had not made Oath before the Chief Justice, Peshawar High Court as envisaged by Article 102 of the Constitution. In the rejoinder filed by Mr. Aftab Ahmad Khan Sherpao it was submitted that the so-called defections had not yet been proved in accordance with law and the issue concerning the same was sub judice before the Chief Election Commissioner. It was also submitted that if a Minister acts beyond his authority and power the same cannot reflect on the functioning of the Government and that no liquid money was given to the members of the Assembly directly and disbursements always took place through the Departments on approved Schemes suggested by the concerned M.P.As.
8-A. The fate of these petitions essentially hinges on the determination of the validity of the grounds for dissolution of the Assembly but before proceeding to consider the same and the grounds of attack it is necessary to dispose of two peripheral mentions raised by Raja Muhammad Anwar, learned counsel for the Speaker.
9. The first contention pertains to the Oath of office of the present Governor. It was contended that the impugned order was void ab initio and without jurisdiction because on 12th November, 1996 when it was passed the Governor had not legally entered upon office as he had made Oath before the Acting Governor and not before the Acting Chief Justice, Peshawar High Court. Reference was made to Article 102 of the Constitution, which provides that before entering upon office the Governor shall make before the Chief Justice of the High Court Oath in the form set out in the Third Schedule, and Article 255(3), which envisages that where under the Constitution a person is required to make an Oath before he enters upon an office he shall be deemed to have entered upon the office on the day on which he makes Oath. Reliance was placed on PLD 1989 SC 75 in which it was held that where power is given to do a certain thing in a certain way the thing must be done in that way or not at all.
10. As against the above contention Mr. Asif Saeed Khan Khosa, learned counsel for the President and the Federation of Pakistan, argued that the Oath taken by the Governor did not suffer from any legal infirmity because he had not made Oath before an Acting Governor appointed under the circumstances mentioned in Article 104 of the Constitution but before the Chief Justice, Peshawar High Court who was discharging the functions of the Governor within the meanings of Article 101(5) of the Constitution. Elucidating the argument he submitted that Article 104 of the Constitution under 'which an Acting Governor is appointed in case of absence of the Governor from Pakistan or his inability to perform the functions of his office due to any cause does not cover death and resignation of the Governor, therefore, in such an eventuality stopgap arrangement is made by the President under Article 101(5) of the Constitution and the Acting Governor so appointed is not an Acting Governor in the sense conveyed by Article 104 of the Constitution as he performs the functions of the Governor additionally and his link with the parent department is not severed. He further argued that if the Speaker was convinced that the Governor was holding the office without entering upon the same then he should have filed a writ of quo warranto and in any event the action of the Governor was saved by the de facto doctrine. Reliance was on PLD 1970 SC 98 and AIR 1981 SC 1473.
1. Mr. Aziz A. Munshi, learned counsel for the Governor and the Province of N.-W.F.P., contended that the Oath taken by the Governor was valid because a Chief Justice Acting as Governor does not cease to be the Chief Justice. Reference was made to PLD 1978 SC 40 and PLD 1975 Karachi 88. He also contended that the action of the Governor was fully protected by the de facto doctrine.
12. The contention hardly needs any serious consideration because the oath of office taken by the Governor was valid by all standards and did not offend against the Constitutional provisions on the subject. It is now well-settled that a Chief Justice acting as Governor does not cease to be the Chief Justice. It was held in Mr. Zulfiqar Ali Bhutto. v. The State (PLD 1978 SC 40) that temporary appointment of Chief Justice of High Court as Acting Governor does not amount to vacation of office of Chief Justice by incumbent of that office. In Messrs Pervaiz Industrial Corporation v. Messrs New Lahore Transport Co. And 3 others (PLD 1975 Karachi 88) it was observed that the Chief Justice of a High Court can hold any other office in addition to his own duties if his remuneration is not thereby increased, that the Chief Justice acting as Governor does not cease to be the Chief Justice and that in the event of his appointment as Acting Governor the Chief Justice does not vacate the office of the Chief Justice, therefore, there is no necessity of a fresh oath of office. Hon'ble the Chief Justice, Peshawar High Court was appointed as the Acting Governor to discharge the functions of the Governor within the import of Article 101 (5) of the Constitution in view of the contingency caused by the resignation of the ex-Governor Major-General (Retd.) Khurshid Ali Khan, therefore, in the wake of appointment of Lt.-Gen. (Retd.) M. Arif Bangash as the Governor and his availability at Peshawar for taking the oath of office the stopgap arrangement had come to an end and his Lordship had automatically ceased to hold the office of the Acting Governor and assumed the office of the Chief Justice, Peshawar High Court for which a fresh Oath was not required. It is scarcely necessary to mention that if the office of the Governor had not become vacant automatically the newly appointed Governor would not have been in a position to take oath of office for the simple reason that unless an office is vacant the new incumbent cannot enter upon it. In any case the validity of the oath of office of the present Governor and assumption of the office of the Governor by him have been challenged collaterally and not directly which is not permissible. The present Governor having assumed the office of the Governor was bound to perform the functions of the Governor and as such the action taken by him is fully protected by the de facto doctrine which was recognised by the Supreme Court of Pakistan in Lt.-Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of Pakistan, Lahore (PLD 1970 SC 98). The relevant observations read as under:- "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. 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."
' The doctrine was approved by the Supreme Court of India also in Gokaraju Rangaraju v. State of Andhra. Pradesh (AIR 1981 SC 1473) in the following words:-- "The de facto to doctrine is now well-established 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 the acts of officers de jure."
13. The second contention was to the effect that before dissolving the Assembly the Governor should have exhausted the remedies envisaged by the Constitution and the law by asking for a floor test within the contemplation of Article 130 (5) of the Constitution and initiating proceedings under the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 against those Ministers and members of the Assembly who were guilty of misconduct. The contention is untenable because the ex-Chief Minister commanded the confidence of the majority of the members of the Assembly, therefore, the floor test would have been an exercise in futility.
Besides, it would have entailed another round of horse-trading with the result that the remedy would have proved worse than the disease. As regards other remedies it would suffice to say that a similar contention raised in the case of Khawaja Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646) was repelled with the following observations:- "The first was that there were available to the President other alternative Constitutional remedies before resorting to this or such a drastic step. In advancing this argument a misconception with regard to the Constitutional powers enjoyed by the President in his discretion and by the Prime Minister has been exhibited. All the alternative powers referred to are exercisable by the President only on the advice of the Prime Minister and not in his discretion."
14. This brings us to the first ground of attack that the former Governor namely Maj.-Gen. (Retd.)
Khurshid Ali Khan, who had resigned soon after the dissolution of the National Assembly, was fully satisfied with the performance of the Government and the Assembly and had never pointed out any impropriety, corruption, maladministration, favourtism or financial irregularity. It was urged by Raja Muhammad Anwar that the former Governor had in fact refused to dissolve the Assembly and was consequently removed from his office through the methodology of resignation. Mr. Abid Hassan Minto submitted that the role of the former Governor was very significant because he had neither raised any objection about the functioning of the Government or the Assembly nor had issued any warning or advice or conveyed his displeasure to the Chief Minister, or the Assembly. Mr. Asif Saeed Khan Khosa, on the other hand, argued that inaction on the part of the former Governor was immaterial as he was not in a position to advise, warn or control the Chief Minister, who was not answerable to him, or the Assembly and if at all there was any subordination it was the other way round.
15. It is true that the former Governor was at the helm of the affairs but the petitioners cannot make any mileage from his conduct because perceptions vary from person to person. Moreover, the present Governor was not estopped by the conduct of the former Governor from invoking the provisions of Article 112(2)(b) of the Constitution because estoppel flows from one's own conduct and not from the conduct of others and there is no estoppel against law and constitutional powers.
Inaction on the part of the former Governor cannot be equated with a licence to indulge in extra- Constitutional activities. The contention raised by Mr. Abid Hassan Minto implies that the Governor of a Province is empowered to advise, warn or control the Chief Minister or the Assembly and if they fail to take notice of his warning then he can penalise them through dissolution of the Assembly.
This supposition is certainly misconceived because such a relationship between the Govenor and the Chief Minister is not envisaged by the Constitution. The Chief Minister is not answerable to the Governor and the address of the Governor to the Assembly under Article 110 of the Constitution cannot be squarely called a warning. The relationship between the Governor and the Chief Minister is the same relationship which the President has with the Prime Minister, therefore, the observations made in this context in the case of Mian Muhammad Nawaz Sharif (PLD 1993 SC 473) may be reproduced hereunder advantageously:-- "It is manifest, therefore, that in the Scheme of our Constitution the Prime Minister in administering the affairs of the Government is neither answerable to the President nor in any way subordinate to him. In formulation of the policies of his Government and in the running of its affairs, the Prime Minister is answerable only to the National Assembly and not to the President. Indeed, it is the President who is bound by the advice of the Prime Minister or the Cabinet in all matters concerning formulation of policies and administration of the affairs of the Government and not the other way about."
The contemporaneity of the dissolution of the National Assembly and the resignation of the former Governor seems somewhat intriguing but being shrouded in mystery it can have no bearing on the merits of the case. In any event the resignation of the former Governor or his blessing are not decisive factors because if the grounds for dissolution of the Assembly are valid they cannot be held invalid simply for the reason that the former Governor had resigned or had not raised any objection to the performance of the Government or the Assembly.
16. We may now turn to the ground of challenge based on mala fide exercise of power. The allegation in brief is that the President had commanded the Governor to dissolve the Assembly and it was for this reason alone that the Assembly was dissolved. It was contended by Raja Muhammad Anwar that the impugned order was mala fide as the decision to dissolve the Assembly was taken by the President and the Governor had only complied with the command of the President. In this context he referred to a press clipping annexed with the petition and submitted that it was correct having not been contradicted. Reliance was placed on PLD 1976 SC 57 in which it was observed that if a person does not avail of the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in Newspapers he cannot complain if that publication is used against him. The arguments addressed by Mr. Abid Hassan Minto on this aspect of the case were that it had already been decided by the President that with the dissolution of the National Assembly the Provincial Assemblies shall also be dissolved. That before his appointment the present Governor had made a press statement, which was published in the Daily 'News' dated 11th November, 1996, that the care-taker Government would not want to make anyone Governor unless the condition of dissolution of the Assembly was agreed upon. That the Governor had accepted the assignment on the condition of dissolving the Assembly and had done the needful shortly after his appointment.
17. The allegation was controverted by the learned counsel for the respondents on the ground that it was absolutely unfounded.
18. It is a matter of common knowledge that the allegation of mala fide is often more easily made than proved. It is also well-settled that the allegation demands proof of a high order on account of its serious nature and the burden of proof lies heavily on the person who makes it. The allegation made by the petitioners is vague, wild and more imaginary than real. Besides, they have singularly failed to discharge the burden of proof placed on them and if we draw any inference from the allegation itself it will indeed be dubious. The arid test for finding out the element of mala fide in an order for dissolution of Assembly lies in the determination of the validity or otherwise of the grounds for dissolution. If the grounds are valid and dissolution of the Assembly is justified the question of mala fide exercise of power does not arise at all. In the case in hand some of the grounds for dissolution of the Assembly are valid and well-founded, the opinion formed by the Governor is unexceptionable and there is sufficient material having nexus with the grounds, therefore, we are satisfied that the dissolution of the Assembly by the Governor was not a command performance.
There is yet another factor which excludes the possibility of dictation by the President. It is that after the dissolution of the National Assembly the entire focus was not good governance, therefore, it was but natural that the attention of the Governor was drawn to the functioning of the Provincial Government and the Assembly. As regards the press statement attributed to the Governor the petitioners cannot draw any premium from it because the Governor had admittedly not given any official Press statement. Moreover, the news item was not widely published in the newspapers, it seems suspect being traceable to a telephonic conversation and was also contradicted by the Governor in his written statement which is supported by his affidavit. The question of mala fides was examined by the Supreme Court of Pakistan in Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151) and it was observed as follows:- "Mala fides is one of the most difficult things 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 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 fide 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 the person alleging mala fides be allowed a roving enquiry into the tiles of the Government for the purposes of fishing out some kind of a case."
' The observations made in this respect in Khalid Malik v. Federation of Pakistan PLD 1991 Karachi 1 may also be reproduced with advantage. -- "Mere allegation made by the petitioners that the action taken was mala fide is not sufficient to establish mala fides. In this regard even circumstantial evidence is to be excluded. In any case, the allegation must be supported by some prima facie proof. Since no material has been placed before us to establish that the action was taken by the President in bad faith, it cannot be held that the action taken by the President was mala fide."
19. The next ground of attack encompasses the allegations that there was neither any material before the Governor nor time to form an opinion objectively that a situation had arisen in which the Government of the Province could not be carried on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary and that the impugned order was passed mechanically on the basis of a charge-sheet prepared by the Chief Secretary. According to Raja .Muhammad Anwar the Governor had no time to form an opinion objectively as he, had dissolved the Assembly within 24 hours of his appointment and his so-called opinion was not supported by any material whatsoever. Mr. Abid Hassan Minto gave new dimensions to the proposition by contending at the outset that apart from absence of material the Governor was totally unaware of the functioning of the Government of N.-W.F.P. And the Assembly as he had never remained associated with the affairs of the Province in any capacity. It was further contended that after the filing of the writ petitions letters were sent calling upon the Heads of the Departments to collect material. The contention was based on two letters dated 23rd November, 1996, Annexures 'AA and AB' addressed by the Section Officer (General) Communication and Works Department to the Chief Engineer (Dev), C&W Department, Peshawar asking him to provide all assistance and cooperation to the team of the Provincial Government which would be visiting various offices of his Department to collect information for proving the charges against the previous Government. It was next contended that the material produced by the respondent in support of the impugned order was not only collected after the dissolution of the Assembly but was also irrelevant. It was also contended that the Assembly was dissolved by the Governor with lightening rapidity, therefore, even if some material was placed before him he had no time to go through the same.
20. In reply Mr. Asif Saeed Khan Khosa argued that no time frame had been provided by the Constitution for formation of the opinion and the present Governor having served in this Province in different capacities knew the situation prevailing in the Province and was in a position to form an opinion objectively in the light of the material placed before him. His next submission was based on the factual aspect of the case reported as PLD 1991 Karachi 1. It was contended that in the said case the Provincial Assembly of Sindh was dissolved by the Governor after one and a half hour of taking Oath of office and the time taken by him was held to be sufficient for forming the opinion. It was further contended that availability of material in the shape of documents is not a Constitutional requirement and credible information is sufficient for forming an opinion which was available to the Governor as he was given detailed briefing by the Chief Secretary, Secretaries of Departments, Inspector-General of Police and other Heads of the Departments. Reliance was placed on PLD 1991 Karachi 1 in which it was held that an opinion can be based on the information furnished by the Secretaries etc. Mr. Aziz A. Munshi also urged vehemently that the Governor had formed his opinion on the basis of information furnished by the Chief Secretary etc. And the material which had been produced in the Court. He further submitted that the impugned order itself points to application of mind. The learned Attorney-General for Pakistan expressed the view that the expression "opinion" used in Article 112(2)(b) of the Constitution cannot be equated with the expression "satisfied" used in Article 234 of the Constitution which requires tangible evidence.
21. The Constitution has not laid down any time frame for formation of opinion that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution and an appeal to the electorate is necessary. Even otherwise time cannot be fixed for formation of an opinion because how much time one takes for forming an opinion varies from person to person. Time is thus not the essence of the opinion formed by the Governor and no adverse inference can be drawn from the length of time consumed in forming the opinion. In Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Karachi 1 an identical time-related contention was repudiated with the following observations:-- "After hearing Mr. A.H. Lakho, A.-G. Sindh and the learned D.A.-G. I am of the view that the order for dissolution of Provincial Assembly passed by the Governor of Sindh does not suffer from any legal and Constitutional infirmity. It is an admitted position that Mr. Mahmood A. Haroon was sworn in as Governor of Sindh on 6-8-1990 at about 10-00 p.m. While the dissolution order was passed by him after about 1-1/2 hours of swearing in ceremony. It was neither impossible nor difficult for the Governor with the facilities available at his disposal to get in contact with the President and obtain his approval for dissolving the Provincial Assembly of Sindh. The existence of facilities like telephone, hot line, wireless and Fax in the Governor House are not denied. Similarly, the presence of important officials of the Provincial Administration like Secretaries of various Ministries, the 1.-G.
Police, the Chief Secretary of Sindh is also not denied. In these circumstances, the formation of opinion by the Governor and obtaining of previous approval of President was neither improbable nor impossible."
22. The material produced by the respondents in the Court is quite extensive. It is contained in as many as twenty-three Files out of which twenty-two Files marked 'A to Z' were submitted along with the written statements of respondents Nos.2 and 3 while one File, which contains details of outstanding dues against the former Ministers and M.P.As. And some Newspaper clippings etc. Was submitted afterwards along with C.M. No,1823 of 1996. The material is not only relevant, adequate and sufficient but also has nexus with the grounds for dissolution of the Assembly. In view of these prominent features of the material it does not stand to reason that the Files submitted along with the written statements were not placed before the Governor at the crucial time. The allegation to the contrary appears to be: a figment of the imagination of the petitioners. We agree with the learned counsel for the respondents that it is not necessary that the opinion should be-formed on the basis of documents alone or a particular kind of material. The written statement of the Governor filed in Writ Petition No,1281 of 1996, which is supported by his affidavit, makes it manifest that in addition to the material placed before him he had received comprehensive briefing and information from the Chief Secretary and other responsible Officers serving in the Province.
Moreover, he is a permanent resident of N.-W.F.P. And had also served as General Officer Commanding Pakistan Army Kohat Division and Inspector-General Frontier Corps. These factors coupled with the material go a long way to suggest that he was in a position to form an opinion objectively. We are unable to agree with the learned counsel for the petitioner that the material annexed with the written statements was prepared after the filing of the writ petitions. The two letters addressed to the Chief Engineer (Dev) C&W Department, N.-W.F.P. On which the contention is based appear to have been sent by the Section Officer concerned in connection with the ascertainment of the outstanding dues against the ex-Ministers and M.P.As. In regard to the rent of the M.P.A. Hostel and Rest Houses which information is contained in File No,23 submitted along with C.M. No,1823 of 1996. In any case the material on the basis whereof the opinion was formed by the Governor covers a wide ground and is not confined to C&W Department. Needless to mention that the material produced in the Court to lend support to the order of dissolution of the Assembly can be looked into if it has nexus with the grounds of dissolution and cannot be brushed aside on the ground that it was not available at the stage of formation of opinion by the Governor.
23. At this juncture we would advert to three contentions raised by Mr. Abid Hassan Minto in regard to the approval accorded by the President of Pakistan. The first was that the Governor had not sent any material to the President along with his letter, dated 12th November, 1996 seeking approval and the President had granted the approval mechanically. The second contention was that the order conveying the approval of the President was silent about the advice envisaged by Article 48(1) of the Constitution which meant that the caretaker Prime Minister was bypassed. The third contention was that in view of its Parliamentary and Federal character the essence of the Constitution is that the Assemblies should be preserved whereas the provisions of Article 112(2)(b) Were an invasion on the parliamentary system of Government and also affected the provincial autonomy, therefore, the President was obliged to accord approval after sending for the material and evaluating it in the light of the spirit of the Constitution and the concept of Parliamentary democracy.
24. From the other side it was contended by Mr. Asif Saeed Khan Khosa that the facts on which the opinion of the Governor was based were too well-known to require an enquiry by the President and in any case the contentions did not merit consideration because the approval accorded by the President had not been challenged in both the petitions. Reliance was placed on PLD 1992 SC 723. It was next contended that Articles 58(2)(b) and 112(2)(b) of the Constitution had fostered democracy and prevented imposition of Martial Law, therefore, they cannot be termed as invasions on parliamentary democracy. It was further contended that the Federal concept and provincial autonomy are not threatened by the approval accorded by the President because the Constitution has its own peculiarities and in view of the provisions of Articles 148 and 234 there is no concept of absolute provincial autonomy.
25. Mr. Aziz A. Munshi urged that the contentions were devoid of substance because the approval by the President had not been challenged and the Eighth Amendment had been held to be valid by the Supreme Court of Pakistan.
26. The contentions have not impressed us. The facts forming the background of the dissolution of the Assembly were indeed so well-known that the President had no reason to question the opinion of the Governor and hold an enquiry. The expression "approval" has not been defined in the Constitution. According to Black's Law Dictionary it means the act of confirming, ratifying, sanctioning or consenting to some act or thing done by another and implies knowledge and exercise of discretion after knowledge. The President had entered upon office in the year 1993, therefore, it is inconceivable that he had no knowledge of the facts in general and the issue of horse-trading and its ramifications in particular which stand out prominently in the impugned order. With regard to the advice of the care-taker Prime Minister it was stated at the Bar by Mr. Asif Saeed Khan Khosa that the approval was granted by the President in accordance with the prescribed procedure. There is thus no need to discuss this point any further because in view of the provisions of Article 48(4) of the Constitution the question whether any, and if so what, advice was tendered to the President by the Prime Minister cannot be inquired into. As regards the third contention that Article 112(2)(b) of the Constitution is an invasion' on the parliamentary democracy and Provincial autonomy it would suffice to say that clause (2)(b) of Article 112 was inserted in the Constitution by the Eighth Amendment and will remain an integral part of the Constitution as long as the said amendment is not scra pped by the Parliament. Be that as it may, the contentions cannot be raised at all because the petitioners have not assailed the approval granted by the President in the writ petitions. In this respect it will be useful to reproduce the following observations made in Federation of Pakistan v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723:-- "There was no direct challenge to want of approval by the President nor to the lack of advice of the Care-taker Prime Minister. Yet, the Court proceeded to examine these facts of its own and by raising a doubt interfered with a Constitutional power reserved for the Governor and the President.
It being a controverted question of fact could not be so raised nor decided on the material before the Court."
' It will not be out of place to mention here that it is imperative to challenge the approval of the President because the opinion of the Governor merges in the approval of the President.
27. We would now advert to the grounds for dissolution of the Assembly. Ground No,1 relates to formation of the coalition Government by the petitioner Mr. Aftab Ahmad Khan Sherpao through horse-trading. It was contended by Raja Muhammad Anwar that the ground was vague, frivolous, fabricated and was neither supported by material nor was sufficient for dissolving the Assembly.
Mr. Abid Hassan Minto argued that the ground only disclosed that the Government was formed by coalition partners and independent members and horse-trading alluded to therein had not been specified. It was altogether silent about the names of the defectors and their party affiliations which meant that the author of the impugned order was conscious of the fact that the defections, if any, had not so far been proved in accordance with law. It was also confined to the time of formation of the coalition Government, therefore, subsequent defections, if any, could not be read into it or added. Besides, there was no positive proof of horse-trading and on the basis of perceptions no one can be held to be a defector. He further argued that the Court can neither take judicial notice of pending cases relating to the so-called defectors nor can substitute its own opinion for the opinion of the Governor. He also contended that the so-called defectors Mr. Shad Muhammad Khan and Mr. Akhtar Hussain Shah had no temptation to change their loyalties and the mere fact that they were made Ministers was not enough to label them as defectors because they were included in the Cabinet of Pir Sabir Shah and no additional reward had been shown to have been given to them. It was further argued that the matter of defections was sub judice before the competent forum, therefore, it could not be set up as a ground for dissolution of the Assembly.
He lastly argued that the oft-quoted authorities on the subject of horse-trading were distinguishable and did not apply to the facts of the present case. In Khalid Malik's case PLD 1991 Karachi 1 there was no dispute about the defection, sufficient material was produced and the law governing defection was different while in the present case a bare reference had been made to horse-trading in the order of dissolution which was disputed, no material had been produced to substantiate the allegation and the state of law is that a defector is entitled to defend himself up to the Supreme Court of Pakistan. In Khawaja Ahmad Tariq Rahim's case PLD 1992 SC 646 also the issue of defection was not disputed, it was not held that defection per se is sufficient for dissolution of the Assembly and the horse-trading was persistent, pernicious, scandalous and at a mass scale while in the present case it was lukewarm. Besides, in that case it was on totality of ground (a) and not purely on the ground of defection that the dissolution order was upheld. In Aftab Ahmad Khan Sherpao's case PLD 1992 SC 723 there was no challenge to horse-trading.
28. Mr. Asif Saeed Khan Khosa, on the other hand contended that a specific finding had been given by the Supreme Court in Khawaja Ahmad Tariq Rahim's case that the ground of horse-trading alone if established is sufficient for dismissing the Assembly and judicial notice of horse-trading was taken by the Supreme Court in Aftab Ahmad Khan Sherpao's case. He further contended that horse-trading affects the representative character of the whole House and Minister ship had been judicially recognised as a reward. Reference in this respect was made to the observations reflected in the cases of Khalid Malik and Aftab Ahmad Khan Sherpao. He further contended that horse- trading is a much larger activity than defection and the ground in question covers horse-trading and not defections simpliciter and what is sub judice is defection and not horse-trading. He lastly contended that it was held in Aftab Ahmad Khan Sherpao's case PLD 1992 SC 723 that action under Article 112(2)(b) can be taken even if the matter of defection is sub judice.
29. Mr. Aziz A. Munshi also contended that there was enough material to substantiate the allegation of horse-trading which by itself was sufficient to justify dissolution of the Assembly as held in Khawaja Ahmad Tariq Rahim's case.
30. The question of horse-trading is not res Integra. It was dealt with at length in Khawaja Ahmad Tariq Rahim v. Federation of Pakistan PLD 1992 SC 646. The relevant observations at page No,666 read as under:- "The preamble to our Constitution prescribes that 'the State shall exercise its powers and authority through the chosen representatives of the people'. Defection of elected members has many vices.
In the first place, if the member has been elected on the basis of a manifesto, or on account of his affiliation with a political party, or on account of his particular stand on a question of public importance, his defection amounts to a clear breach of confidence reposed in him by the electorate. If his conscience dictates to him, so, or he considers it expedient, the only course open to him is to resign to shed off his representative character which he no longer represents and to fight a reelection. This will make him honourable, politics clean, and emergence of principled leadership possible. The second, and more important, the political sovereign is rendered helpless by such betrayal of its own representative. In the normal course, the elector has to wait for years, till new elections take place, to repudiate such a person. In the meantime, the defector flourishes and continues to enjoy all the worldly gains. The third is that it destroys the normative moorings of the Constitution of an Islamic State. The normative moorings of the Constitution prescribe that 'sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust' and the State is enjoined to 'exercise its powers and authority through the chosen representatives of the people'. An elected representative who defects his professed cause, his electorate, his party, his mandate, destroys his own representative character. He cannot on the mandated Constitutional prescription participate in the exercise of State power and authority. Even by purely secular standards carrying on of the Government in the face of such defections, and on the basis of such defections, is considered to be nothing but 'mockery of the democratic Constitutional process' ."
' The observations made at pages 696/697 are as under:- "And whilst all forms of defection must be abhorred as violative of the Islamic spirit that binds a man to his word, such transgression on the part of a legislator must be all the more looked down upon as a serious breach of the authority reposed in him by Allah to represent his constituency on the basis of the sacred trust reposed by them in him. By defection he basically violates the very spirit of the teachings and requirements of Islam, under which he is ordained to act, and such an act can only be treated as a negation of the very spirit of the Constitution, which he is bound to preserve and protect. But one thing is certain, that when defection is used by a legislator to bargain for something outside his pure moral desire to change loyalty for another political party, 'trading' sets in, and when he dictates enerous terms as a consideration for his defection, such as a heavy price, a high office or some handsome reward, it becomes 'horse-trading' or 'conscience vending', a highly pernicious, immoral and unethical act, which for the same reasons must be openly condemned."
' Another impressive judgment on the subject is reported as Khalid Malik and others v. Federation of Pakistan and others PLD 1991 Karachi 1 in which it Was observed that the word 'horse-trading' is nowhere defined but in common parlance with reference to political gains it is understood as winning of support of members belonging to opposite camps by inducement and corrupt means.
It was further observed that the democratic practice, parliamentary conventions and the law regulating the political parties discourage defection and that the defection and purchasing loyalty are such illegal and immoral acts which tarnish the purity of the House, destroy the character of the Assembly and adversely affect its utility and efficacy. It was further observed that defection does not affect the House alone but disturbs the balance and equilibrium of the Government, creates climate of uncertainty in the administration and shakes and demoralises the Services.
31. The ratio of the abovementioned instructive judgments is that horse-trading alone if established is sufficient for dissolving the Assembly The observations made at page 667 of the judgment it I Khawaja Ahmad Tariq Rahim's case leave no room for doubt that horse-trading by itself is sufficient to justify the dissolution of the Assembly while the observations made at page No,697 are as follows:-- "As stated earlier, the Coalition Government was somewhat peculiarly placed in view of the open confrontation existing between itself and the Combined Opposition and attempts made by both to dislodge each other contributed to defection and 'horse-trading' on an uninterrupted scale with each side trying to grab members of the other and offering Ministerial or other posts and rewards in the Centre or in the Provinces to some of the defectees. The grant of High offices, such as of Ministers, Ministers of State, etc., to members of the Opposition camp showed that they were for reward. No Parliamentary practice permits defection or 'horse-trading'. The evil is manifest where tenuous coalitions are in the seat of power. To maintain power, defections from the opposition parties are sought against high rewards and offer of Minister ships. Likewise, the same practice is adopted by the Opposition to break the ruling coalition. The adoption of this evil practice only lays bare the position of a coalition party that its functional ability to rule, through the numerical strength of its members, is vulnerable, and that if the opponents were to succeed by the same practice, they would be out of power. This ground can reasonably be treated as reflective of serious functional dislocation of a coalition Government, and since this is a basic situation for which an Assembly can be dissolved, as stated in para.19 above, this ground I would treat as justifying the opinion which the President did come by to justify dissolution."
' Both the judgments still hold the field. There is thus no merit in the contentions that acceptance of the reward of Minister ship does not establish defection and horse-trading by itself is not sufficient to sustain dissolution of the Assembly.
31-A. Coming to the question of proof of horse-trading we find that the allegation is amply supported by the material on record. It will be pertinent to point out at this stage that a writ petition involving the question of horse-trading arising from the dissolution of an Assembly and a Reference for disqualification of a member of an Assembly on the ground of defection are poles apart, therefore, we are not supposed to embark upon a detailed enquiry and hold after recording evidence that horse-trading has been established beyond any reasonable doubt. We are only required to see as to whether the allegation of horse-trading is prima facie established in the light of the material available on record or not. The list of the members of the Assembly, contained in File 'A', shows that the M.P.As. Elected to the Assembly ascandidates of the Pakistan Muslim League
(N) included Mr. Shad Muhammad Khan, Mr. Akhtar Hussain Shah, Haji Munsif Khan and Mr. Abdul Sattar Khan while those elected on the Tickets of Awami National Party included Mr. Javed Iqbal Khan, Mr. Ghani Dad Khan and Mr. Muhammad Didar Khan. The manner in which the Government was formed by Mr. Aftab Ahmad Khan Sherpao is mentioned in para. 4 of his writ petition. It reads as follows:- "That on 24th April, 1994, the petitioner was elected as Chief Minister of the said province with the support of the PDF members of the Assembly, comprising of PPP and PML(J), JUI(F), MDM, members of PML(N) and the independents also voted for the petitioner. The voting strength of the petitioner came through the following votes: PPP 22, PML (J) 4, Independents 13, PML(N) 2, JUI(F) 1, MDM 1, making it a total of 43 in the house of 83. In consequence thereof the petitioner formed a Cabinet of Ministers from amongst his own party and the allies."
' The above excerpt from Writ Petition No,1282 of 1996 clearly shows that the Government was formed by Mr. Aftab Ahmed Khan Sherpao through horse-trading by persuading Mr. Shad Muhammad Khan and Mr. Akhtar Hussain Shah to change their loyalties. This conclusion is reinforced by the list of Ministers contained in File 'H', according to which both of them were made Minister. This visible reward appears to have provided an incentive to other members of the Assembly to switch their loyalties with the result that the House became terminally contaminated and in due course five other members namely Abdul Sattar Khan, Muhammad Didar Khan, Ghani Dad Khan, Javed Iqbal Khan and Haji Munsif Khan jumped on the bandwagon and all of them except Munsif Khan and Javed Iqbal were made Ministers as is evident from the aforementioned list of Ministers. References against six defectors are admittedly pending before the Chief Election Commissioner. We have also taken judicial notice of the fact that six out of seven defectors had filed writ petitions in this Court wherein they had challenged the vires of section 8-B of the Political Parties Act, 1962 and prayed that the references of disqualification against them pending before the Chief Election Commissioner of Pakistan may be declared as incompetent and without jurisdiction. The particulars of the writ petitions are as under:--
(1) W.P. No,354 of 1996 titled Abdul Sattar v. The Federation of Pakistan.
(2) W.P.No,355 of 1996 titled Akhtar Hussain Shah v. The Federation of Pakistan.
(3) W.P.No,356 of 1996 titled Shad Muhammad Khan v. The Federation of Pakistan.
(4) W.P.No,357 of 1996 titled Ghani Dad Khan v. The Federation of Pakistan.
(5) W.P.No,358 of 1996 titled Malik Didar Khan v. The Federation of Pakistan.
(6) W.P.No,359 of 1996 titled Javed Iqbal v. The Federation of Pakistan.
' The writ petitions were dismissed as withdrawn on 13-11-1996 on account of dissolution of the Assembly. The very acceptance of reward of Minister ship by these M.P.As. Furnishes a clear proof of horse-trading and the ensuing defections. It is true that the names of the defectors are not mentioned in the impugned order and defections after the formation of the Government by the petitioner are also missing but these omissions are immaterial in such as the impugned order boldly spells out horse-trading which is a much larger and persistent activity than defection which is its manifestation and concomitant. The horse-trading was indubitably persistent and defections were manipulated through it as and when required. The matters of defection are indeed sub judice before the Chief Election Commissioner of Pakistan but this circumstance can neither place an embargo on the power conferred on the Governor by Article 112(2)(b) of the Constitution nor can stand in the way of dissolution of the Assembly. In holding this view we are fortified in the following observations made in Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 SC 723):-- "Defection of an elected representative or a group of them should not have been confused with coalition of political parties or alliances of such parties for formation of Government. Similarly, the question, whether technically it amounted to defection or whether a particular provision of the Political Parties Act was violative of the Fundamental Rights or these matters were sub judice had nothing to do with the exercise of the Constitutional power of dissolving the Assembly on the ground that by such defection it had lost its representative character. The elected representatives had at all times no other capacity except to represent their electorate. This ground, as pointed out in the case of Khawaja Ahmad Tariq Rahim C.P.L.A. No,628 of 1990 (PLD 1992 SC 646) was by itself sufficient to warrant the dissolution."
32. The defectors were not only made Ministers but were also allotted plots by the ex-Chief Minister out of his special quota in Phase-VII of Hayatabad Town as is evident from the documents contained in File 'V'. We thus find no force in the contention that no additional reward was given to the defectors.
33. The Assembly had lost its representative character and the Government had lost the legitimacy on account of persistent and scandalous horse-trading which is a stark violation of the Injunctions of Islam and is condemned all over the world as being a mockery of democracy. The Governor was thus obliged to invoke the provisions of Article 112 (2) (b) of the Constitution and he would have failed in performing his Constitutional duty had he looked the other way.
34. Grounds Nos.2 and 3 are interlinked in that the former highlights the cause of widespread malpractices in the affairs of the Province and the latter spells out some instances of indulgence in nepotism, favouritism and corruption by the Ministers and members of the coalition Government.
Ground No,3 is by and large supported by the material produced in the Court, therefore, there is no escape from the conclusion that as an aftermath of formation of Government through horse- trading and keenness of the ex-Chief Minister to maintain the slim majority the malpractices specified in the impugned order had assumed alarming proportions. Instance No,(1) mentioned in ground No,3 is in respect of tribal domicile certificates obtained by a Minister of his children and transfer of two hundred Officers in violation of Rules Nos.5 and 7 of the Rules of Business of the N.- W.F.P Government. The Inquiry Report, dated 10th May, 1996 of the Commissioner, D.I.Khan Division, contained in File clearly shows that as many as eleven fake domicile certificates of Kurram Agency were obtained by a Minister for his sons and daughters. It was contended by Mr. Abid Hassan Minto that pursuant to the Inquiry Report the domicile certificates were cancelled which was an act of good governance. The contention is devoid of force because; firstly, there is nothing on the record to show that the inquiry was ordered by the ex-Chief Minister and, secondly, the event unfolds the frame of mind and modus operandi of the Minister concerned. The documents contained in File 'K' make it manifest that during the last three years many civil servants were transferred in compliance with the orders of the Ministers and recommendations of M.P.As. The transfers were thus not made in the interest of public service.
' Instance No,(ii) relates to awarding of Contracts to relatives and close friends. The material produced in this context is scanty as it covers only one Contract in which a Minister had passed an order for arbitration in favour of a relative who has withdrawn the Civil Suit filed by him. It is true that, as pointed out by Mr. Abid Hassan Minto the order of the Minister has not been implemented so far but the credit goes to the civil servant concerned who had brought the rule position to the notice of the implementing authority and the fact remains that the Minister concerned had indulged in nepotism with utmost facility.
' Instance No,(iii) is supported by the documents contained in File 'M' as well as the statement showing outstanding dues against the former Ministers/M.P.As. Contained in the File submitted along with C.M No,1823/96.
' Instance No,(iv) is supported by the report dated 25-7-1996 addressed to the Senior Superintendent of Police, Peshawar, contained in File 'N', but it is to be kept out of considerations as it does not fall within the ambit of a malpractice committed by a Minister or M.P.A.
' Instance No,(v) relates to transfer of certain property to the relatives and favourites of the Ministers and members of the Assembly. It gets support from the documents contained in File '0' according to which an already encroached upon area adjacent to Plot No,22 situated in Doonga Gali Township and additional land with as many as twelve plots situated in Doonga Gali, Nathia Gali, Changla Gali and Ithanas Pur were, allotted to some Ministers and other persons and Inspection Bungalow Nathia Gali built on an area measuring five Kanals nine Marlas was leased out for a period of 99 years commencing from 11th June, 1996 to one Mr. Suhail Shahzada, Pakistan businessm an residing in the United States of America.
' Instance No,(vi) is in respect of embezzlement and misappropriation of public funds in the purchase of Ambulances. According to the documents contained in File 'P' the Family Health Project is a donor assisted project meant for the Primary Health Care. One of the components of the Project was purchase of vehicles including twenty Ambulances which were procured from M/s. Auto World International (Pvt.) Limited, Karachi. The Company had offered Toyota Dyna 3500 CC Ambulances at the rate of Rs,9,85,786 per unit but had supplied Toyota Hiace LH 80 2500 CC. The purchase became controversial on account of change of specifications and local fabrication of the body of the Ambulances. The matter was reported to the Chief Secretary as a result of which a Committee comprising Secretary Health, Secretary Industries and Secretary PE&D Departments was constituted to check whether the Ambulances were of the expected quality. The Committee in its first meeting held on 20-12-1994 constituted a sub-committee which opined in its report dated 3-1-1995 that "Regarding quality of the vehicles of Committee thinks that it is not desired quality as compared to the imported ambulances, comprising of single compartment. The report was submitted to the ex-Chief Minister for orders. However, in the meantime the Health Minister passed an order on 9-2-1995 directing the Project Director to take over the Ambulances and release the balance amount of Rs,5.7 million. The Health Department/Family Health Project did not comply with the order on which the Health Minister issued another order on 23-2-1995 which reads as follows:-- "Subject: TAKING OVER OF 20 UNITS OF AMBULANCES BY FAMILY HEALTH PROJECT.
' Reference Order bearing No . PS/Min/Healthy/95/1157 , dated 8-2-1995 on the subject cited above.
2. Please implement the decisions arrived a meeting held on 6th February, 1995 forthwith as per details in para. 2 (a) (b), (c) and (d) of the letter referred to above, in the interest of public service.
Ex-post sanction/approval from the Chief Minister, N.-W.F.P. Will be obtained on his arrival form visit abroad."
' In this backdrop the purchase of Ambulances does not appear to be transparent.
' Instance No,(vii) relates to shady and unfair practices by a Minister which were pointed out in writing by a donor agency of a friendly country. It gets support from two letters, dated 30th August, 1996 and 30th June, 1996, contained in File 'Q' which were addressed to the Additional Chief Secretary N.-W.F.P. And the Chief Engineer, Public Health Engineering Department by the Senior Vice-President of the donor agency and the Project Coordinator respectively. There is no need to mention the name of the donor agency or the Project. It would be enough to say that a suggestion was made in the letter, dated 30th August, 1996, that a Task Force may be set up to look in to certain irregularities as there was "anecdotal evidence that a commission amounting to some 6% of the contractual value has been imposed and collection is taking place at the level of the Executive Engineers with the understanding that this new commission is exclusively for the higher echelons of the Department and the Minister. This commission seems to substantially contributing to the disappointing results of the various tenders floated so far under the ongoing phase of the Project".
' The second letter is in respect of a Pajero vehicle and reads as under:-- "We are shocked to receive that abovementioned vehicle which was kept by Minister for quite long time. It seems that the vehicle met a few accidents and when found not serviceable, vehicle was sent to us. The misuse of the vehicle in this manner is not acceptable. We would like you to convey our concern to the Minister and would like all our vehicles back as soon as possible as we are badly in need of them."
' Instances Nos.(viii), (ix) and (x) are prima facie supported by the documents contained in File 'R' and the File submitted .Along with C.M No,1823/96.
35. Ground No,4 as well as Grounds Nos.8, 9, 11, 12, 13 and 14 neither supported by any material nor have nexus with the pre-conditions prescribed by Article 112 (2) (b) of the Constitution.
36. Grounds Nos.5 and 6 are interlinked as both relate to appointments, postings and transfers in the departments and agencies of the Government on the recombination's of the Ministers and members of the Assembly. We have already observed that most of the postings and transfers of Government servants were politically motivated and were not made in the interest of public service,therefore, while dealing with these Grounds we will confine our observations to the issue of appointments. In a monumental authority of the Supreme Court of Pakistan reported as Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 the policy and practice of allocation of posts to the M.P.As. Etc. For the purpose of recruitment to the posts was deprecated and the appointments made thereunder were held to be void ab initio in the following words:-- "As regards the allocations of quota of posts to the local M.P.As. Or M.N.As. For recruitment to the posts we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/M.N.As/M.P.As. And appointments made thereunder are all illegal ab initio and have to be held so by all Courts, Tribunals and authorities."
' The allegations made in these grounds vis-a-vis appointments are abundantly supported by the material contained in File 'K' which shows that in various departments countless appointments were made on the recommendations of Ministers and M.P.As. Against quotas allocated to them and not on merit. The material also shows that the M.P.As. Whose recomrnendees were not appointed used to move call attention notices, privilege motions and adjournment motions in the House. The law and the guidelines laid down in the aforementioned judgment of the Supreme Court of Pakistan were violated to such an extent that the President of Pakistan was constrained to draw the attention of the Governor N.-W.F.P. To the same by forwarding a copy of the letter addressed to the Governor Punjab on the subject for information and necessary action. It reads as follows:-- "THE ISLAMIC REPUBLIC OF PAKISTAN Farooq Ahmad Khan Leghari ISLAMABAD 1411/2/PRESIDENT 15th October, 1996 1 JAMADI-US-SANI 1417 AH ' Lieut-General (Retd.) Raja Saroop Khan, HI(M), SBt., Governor Punjab, Governor House, Lahore.
' My dear Governor, ' I have been deeply disturbed by reports that vacant Government posts are to be filled on the basis of recommendations made by M.N.As. And M.P.As. Against individual quotas allocated to them. In the case of Munawar Khan v. Niaz Muhammad and others 1993 SCMR 1287 after hearing the Attorney-General for Pakistan, the Principal Secretary to the Prime Minister, Chairman, Federal Public Service Commission and the Advocate-General of the four Provinces, the Supreme Court of Pakistan held that the allocation of quotas to M.N.As. And M.P.As. For recruitment to various posts was offensive to the Constitution and the law. Ministers, M.N.As. And M.P.As. Were under an oath to discharge their duties in accordance with the Constitution and the law. The judgment and discretion of the competent departmental authority for appointment against vacant posts was to be exercised honestly and objectively in the public interest and was not to be influenced or subordinated to the judgment of anyone else. Allocation of quotas to Ministers, M.N.As. And M.P.As.
And appointments made on their recommendations, were illegal ab initio. In view of the Supreme Court judgment, any appointment on the basis of quota allocated to individual M.N.As. And M.P.As.
Would be direct violation of the Constitution. Please bring this matter to the immediate notice of the Chief Minister and his Cabinet. It is your and their Constitutional duty to ensure that all appointments are made on the basis of merit and merit alone.
' I am sending a copy of this letter to the Prime Minister and the Governors of the other three Provinces."
It appears that the Ministers and M.P.As. Concerned has persistently and blatantly flouted the guidelines laid down by the Supreme Court of Pakistan under the impression that power is of no use if it cannot be abused. In view of this unsavory and sad state of affairs we tend to agree with Mr. Aziz A. Munshi that persistent violation and disobedience of the aforementioned judgment of the Supreme Court of Pakistan is tantamount to undermining the basic structure of the State by creating a deadlock relating to the third organ namely Judiciary. This certainly has nexus with the provisions of Article 112(2)(b) of the Constitution.
37. Ground No,7 consists of two parts. The first part relates to misuse, embezzlement and misappropriation of funds of various local councils and the second points out that the funds of the District Councils are distributed amongst M.P.As. To ensure their loyalists and the practice militates against the provisions of Article 32 of the Constitution. The first part is in fact a projection of Grounds Nos.2 and 3. The seriousness of the allegation made therein demands enough material but the material available on record is not sufficient to augment the same as it only covers the allocation of funds of the District Councils to M.P.As. And does not disclose the particulars of the schemes proposed by them on which the funds were spent. Admittedly, no liquid money was given to the M.P.As., therefore, if an adverse inference is drawn from the allocation of funds it will be conjectural and lopsided. The second part presents a dismal and regrettable state of affairs. The importance of local Councils hardly needs any emphasis but unfortunately they have been stifled by the vested interest for obvious reasons. The absence of elected councils has changed the priorities of the M.P.As. The failure of the Government to promote local councils and utilization of funds of the local councils by the M.P.As. Leave much to be desired but this imbroglio cannot be made a ground for dissolution of the Assembly as it has no nexus with the pre-conditions prescribed by Article 112(2)(b) of the Constitution.
38. Ground No,10 also consists of two parts and in view of the nature of the allegations reflected therein is linked with Ground No,2. The first part relates to manipulation of price of land acquired for public purpose and the second part pertains to creation of residential plots in Housing Schemes in violation of the approved plans and allotment of the same in a shady manner to gratify the members of the Assembly. The material concerning the first part is contained in File 'S' and covers a portion of land acquired for construction of Ring Road, Peshawar and land acquired for construction of Public Park at Dang Bala, Mardan and Labour Colony, Mansehra and consists of two Intelligence reports and a complaint by two politicians. It is certainly not sufficient to support the allegation. However, the second part is supported by the material contained in File 'V' and annexed with the affidavit dated 28-1-1997 of Secretary, Physical Planning and Housing Department. It is evident from the material that pursuant to the direction of the ex-Chief Minister, N.-W.F.P. The ex- Minister for Physical Planning and Housing, N.-W.F.P. Had directed the Managing Director P.U.D.B. On 13th December, 1995 to earmark 100 residential plots of one Kanal each in Phase VII of Hayatabad Town for allotment to M.P.As. And other deserving persons. The directive reads as follows:-- "MINISTER FOR PHYSICAL PLANNING AND HOUSING, N.-W.F.P.
' D.O.No,PS/Minister PP&H/95 ' Dated Peshawar the 13th December, 1995 ' SUBJECT: ALLOTMENT OF RESIDENTIAL PLOTS (ONE KANAL EACH) TO M.P.AS./QTHER DESERVING PERSONS ' Chief Minister, N.-W.F.P. Has directed that 100 plots of one Kanal each be earmarked in Phase VII of Hayatabad Town for allotment by him and Minister PP&H to the M.P.As./other deserving persons.
This will be in addition to their normal quota which has already been utilized. Director-General, Peshawar Development Authority be directed to carry out replanning, allot plot Nos. And submit a proposal for the approval of the undersigned/Chief Minister, N.-W.F.P."
' Consequently, the Director-General, P.D.A. Submitted a report to the Physical Planning and Housing Department that a piece of land measuring 200 Kanals was earmarked in the approved PC-1 of Phase VII, Hayatabad Town for construction of residential accommodation for Ministers and other officers of the Provincial Government but the Scheme was not included in the A.D.P. That land had been replanned and converted into 98 residential plots of one Kanal each with provision of utility plots/green belt which may be placed at the disposal of the Chief Minister for allotment to M.P.As/other deserving persons. The Department did not support the proposal on the grounds that the area proposed to be replanned had been earmarked for Government accommodation in the approved PC-1 and the Minister PP&H/Chief Minister N.-W.F.P. Had already availed their discretionary quotas. However, the proposed replanning as suggested by P.D.A. Was approved and the plots were allotted to 48 M.P.As and 50 other persons. The contention raised by Mr. Abid Hassan Minto that the allotment of plots was made on payment of price and not ex gratia overlooks the plain realities that according to the approved Pc-1 the area from which the plots were created through replanning was meant for construction of Government accommodation and the Minister PP&H and the Chief Minister, N.-W.F.P. Had already exhausted their discretionary quotas.
39. Ground No,15 is linked with Ground No,3 as it portrays the evil consequence of corruption etc.
40. The pith and substance of the discussion on the grounds of dissolution of the Assembly is that Ground No,1 in its entirety and Grounds Nos. 2, 3, 5, 6, 10 and 15 to the delineated extent are not only supported by the material on record but also have nexus with the provisions of Article 112(2)(b) of the Constitution. As mentioned earlier Ground No,1 is by itself sufficient to sustain dissolution of the Assembly. Grounds Nos. 2, 3, 10 and 15, which symbolise corruption etc., are not independently sufficient to warrant dissolution of the Assembly but can be invoked, referred to and made use of along with. Ground No,1 in view of the following observations made in Khawaja Ahmad Tariq Rahim v. The Federation of Pakistan PLD 1992 SC 646:-- "It is true that some of the grounds like (c), e (ii) and e(iii) may not have been independently sufficient to warrant such action. They can, however, be invoked, referred to and made use of along with grounds more relevant like (a) and (b) which by themselves are sufficient to justify the action taken."
' It may be pointed out that grounds (c) and e(ii) and e(iii) mentioned in the above excerpt pertained to corruption, nepotism and personal gains while grounds No,(a) pertained to horse- trading.
' Grounds Nos.5 and 6 not only contain the element of a deadlock but also have overtones of a malpractice and favoritism, therefore, we would club them with Grounds Nos. 2, 3, 10 and 15 and hold that they too are not by themselves sufficient to warrant dissolution of the Assembly but coupled with Ground No,1 can justify and uphold the validity of the impugned order.
41. It was contended by Mr. Abid Hassan Minto that the allegations of corruption etc. Are wholly extraneous and cannot sustain the order dissolving an Assembly as held in Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473. The contention is based on the following observations made at page 630 of the Judgment:- "The allegations of corruption, of maladministration, of incorrect policies being pursued in matters financial, administrative and international are independently neither decisive nor within the domain of President for action under Article No, 58(2)(b) of the Constitution. These are wholly extraneous and cannot sustain the impugned order."
' The contention is not tenable because in view of the expression "independently" used in the above observations there is no difficulty in holding that the view expressed in regard to corruption etc. In Khawaja Ahmad Tariq Rahim v. Federation of Pakistan (PLD 1992 SC 646) still subsists and the curtain has not fallen on these matters.
42. The last ground of attack is remarkable in weakness only because in the face of the soundness of Grounds Nos.1, 2, 3, 5, 6, 10 and 15 and their nexus with the provisions of Article 112(2)(b) of the Constitution there can be no cavil with the proposition that a situation had in fact arisen in which the Government of the Province could not be cared on in accordance with the provisions of the Constitution and an appeal to the electorate was necessary. As regards the contention raised by the learned counsel for the petitioners that in view of the parameters laid down in Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) and Mian Muhammad Nawaz Shairf v. President of Pakistan and others (PLD 1993 SC 473) an Assembly cannot be dissolved unless there is a complete breakdown of Government machinery, stalemate and a deadlock it would suffice to say that the ratio of these judgments does not apply to the facts of the present case as the ground of horse-trading was not involved in those cases. The present case is to be decided in the light of the observations on the points of horse-trading and corruption etc. Made in Khawaja Ahmad Tariq Rahirn v. Federation of Pakistan (PLD 1992 SC 646) and Federation of Pakistan v. Aftab Ahmad Khan Sherpao (PLD 1992 SC 723) which have not been overruled so far. The observations on the question of horse-trading made in the case of Khawaja Ahmad Tariq Rahim have already been highlighted in paragraphs 30 and 31 ante. In the case of Aftab Ahmad Khan Sherpao the following weighty observations were made at page No,749:-- "In view of such large scale defections in the Province the representative character of the renegades had become open to serious doubt. So, was the democratic character of the Provincial Government, then functioning. So, was its functioning in accordance with the provisions of the Constitution. In the circumstances there was no ground available for interfering with the order of dissolution and ordering restoration of the Provincial Assembly and the Cabinet."
43. Having disposed of all the questions raised in the case we will now come to three applications for impleadment as parties to the petitions.
' C.Ms. Nos.1685/96 and 1686/96 were moved by Professor Zaheen Ahmad, Political Editor of the Daily 'Kasoti', Peshawar. Impleadment was sought on the ground that the applicant being an elector was in a position to apprise the Court of the grievance of the public at large in regard to the dissolution of the Assembly. It was contended by Mr. Abdul Rauf Rohaila, learned counsel for the applicant, that the applicant being a voter was aggrieved by the dissolution of the Assembly and was well within his right to express his viewpoint. The applications were not resisted by the learned counsel for the petitioners in view of the stance taken by the learned counsel for the applicant.
However, we are not inclined to allow the applications because a voter is neither a necessary nor a proper party in a petition challenging dissolution of the Assembly. Besides, the acceptance of the applications will open a floodgate of applications by the voters supporting one or the other side with the result that the disposal of the main petitions will be delayed. The applications are, therefore, dismissed.
44. C.M. No, 1743/96 was moved by Begum Nasim Wali Khan, ex-leader of the Opposition and the Parliamentary leader of A.N.P. In the defunct Assembly, in Writ Petition No,1282/96 filed by Mr. Aftab Ahmad Khan Sherpao.
45. Impleadment was sought on the ground that the applicant was in possession of certain documentary evidence which would establish the involvement of the petitioner in the Mehran Bank scam and use of the Bank's money for horse-tarding and also prove that immediately before the dismissal of the Government he had purchased six plots of two Kanals each in Hayat Abad Phase-II through a fake auction held in his office.
46. The application was resisted by the petitioner on the grounds that the applicant was neither a proper nor a necessary party within the meanings of Order 1, C.P.C, the main issue raised in the application concerning Mehran Bank was sub judice before the Supreme Court of Pakistan on the applicant own petition, third parties are not entitled to be heard as the exercise of powers under Article 112(2)(b) of the Constitution depends on the opinion of the Governor and that the allegations made therein were false, unfounded, inconsistent with the report of the Mehran Bank Inquiry Commission and raised questions which are not relevant to the questions raised in the petition.
47. The application was not opposed by the learned counsel for respondent No,2 Qazi Muhammad Anwar, learned counsel from the applicant, and Mr.Abid Hassan Minto learned counsel for the petitioner were heard at length.
48. The main thrust of the arguments addressed by the learned counsel for the applicant was that the applicant was a necessary or in any event a proper party as she was the Leader of the Opposition in the defunct Assembly and, was in possession of sufficient material which would substantiate the grounds for dissolution relating to the involvement of the petitioner in the Mehran Bank scam and corruption etc. The learned counsel for the petitioner on the other hand maintained that the applicant was neither a necessary nor a proper party because the impugned order was not based on her complaint, she was a beneficiary of the dissolution order, it was not a public interest litigation and no roving enquiry can be made by this Court and in any case the matter was sub judice before the Supreme Court.
49. After giving the contentions raised at the Bar our anxious consideration we have come to the conclusion that the application does not merit acceptance because the applicant is not a necessary or proper party within the contemplation of Order 1, Rules 3 and 10, C.P.0 and in any case the questions involved in the main petition can be effectually and completely adjudicated upon in her absence. Besides, the issue pertaining to the Mehran Bank is admittedly sub judice before the Supreme Court on the applicant's own petition. Last but not the least in order to take the controversial questions to be raised by the applicant to their logical conclusion some evidence may have to be recorded which cannot be done in these proceedings. The application is, therefore, dismissed.
' For the foregoing reasons both the writ petitions are dismissed. No order as to costs.
' Above are the reasons for he short order passed on 30-1-1997 whereby the writ petitions were dismissed.
(Sd.)
Syed Ibne Ali, C J.
(Sd.)'
Abdur Rehman Khan, J.
(Sd.)
Mahbub Ali Khan, J.
(Sd.)
Qazi Muhammad Farooq, J.
(Sd.)
Mian Muhammad Ajmal, J.