' MALIK MUHAMMAD QAYYAM, J.---Mian Manzoor Ahmad Wattoo, former Chief Minister of the Province of Punjab filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 challenging the Proclamation issued by the President of Pakistan under Article 234 of the Constitution of Islamic Republic of Pakistan, 1973 on 5-9-1995; the order of the Governor dated 11-9-1995 requiring the petitioner to take a vote of confidence on 12-9-1995 at 2-00 p.m. And the subsequent election/appointment of Sardar Muhammad Arif Nakai as Chief Minister of the Province of Punjab.
2. In this petition as originally filed, the petitioner had impleaded Federation of Pakistan, Province of Punjab and Sardar Muhammad Arif Nakai as respondents. However, an application (L.M. 4/96) under Order 1, rule 10, C.P.C. Was moved by the petitioner for impleading Lt.-General (Retd.) Raja Saroop Khan as a respondent, which though opposed by the respondents as also the learned counsel appearing on behalf of the Governor, was allowed by this Court on 10-7-1996. The petitioner, thereupon, filed an amended petition to which separate written statements were filed by all the respondents including Governor of Punjab.
3. The facts forming background of the dispute are that on dissolution of the Punjab Provincial Assembly, general elections were held on 9-10-1993. The petitioner was elected as Chief Minister on 20-10-1993. He took vote of confidence on 21-10-1993 and secured 133 votes out of total members of
248. It is a common ground between the parties that the Government formed by the petitioner was a coalition comprising of the Members of the Pakistan Muslim League (Junejo Group) and Pakistan People's Party. According to the petitioner, the affairs of the Province were being run smoothly by him in accordance with the Constitution and law till the appointment of respondent No,4 as Governor. It is stated in this petition that earlier respondent No,4 while working as Head of the Research and Analysis Cell in the Prime Minister Secretariat had developed bias against the petitioner and had devised a strategy to oust the petitioner who was dubbed as a lurking enemy.
4. It is claimed that in furtherance of those designs and with a view to remove the petitioner, respondent No,4 submitted a motivative report to respondent No,1 on the basis of which the President of Pakistan on 5-9-1995 issued the following Proclamation purportedly under Article 234 of the Constitution of Islamic Republic of Pakistan, 1973: "Whereas I, Farooq Ahmad Khan Leghari, President of the Islamic Republic of Pakistan, on receipt of report from the Governor of the Punjab and other information made available, am satisfied that a situation has arisen in which the Government of the Punjab cannot be carried on in accordance with the provisions of the Constitution.
2. Now, therefore, in exercise of the powers conferred by Article 234 of the Constitution, I hereby,---
(a) direct the Governor of the Punjab to assume on my behalf the functions of the Government of that Province; and all or any of the powers vested in, or exercisable by, anybody or authority in the Province, other than Provincial Assembly;
(b) make the following incidental and consequential provisions which appear to be necessary or desirable for giving effect to the objects of this Proclamation:--
(i) The Chief Minister and Provincial Ministers of that Province shall forthwith cease to perform functions of their respective offices; and
(ii) In the exercise of the functions which the Governor has been directed to assume as hereinbefore stated, the Governor shall act to such extent and subject to such conditions as I shall, from time to time, deem fit to give or impose."
' Pursuant to the above Proclamation, the control of the affairs of the Province was assumed by the Governor on behalf of the President.
5. The next event of which notice must be taken is that on 11-9-1995 an order under Article 130(5) of the Constitution was issued by the Governor of the Punjab stating that a large number of Members of the Provincial Assembly had declared loss of confidence in Mian Manzoor Ahmad Wattoo, Chief Minister of Punjab and that the Governor was satisfied that Mian Manzoor Ahmad Wattoo no longer commands the confidence of the majority of the members of the Provincial Assembly of Punjab and, therefore, the Provincial Assembly of Punjab should meet on 12-9-1995 at 2-00 p.m. At the Assembly Chambers, Lahore and Mr. Wattoo should obtain a vote of confidence from the Assembly in terms of clause (5) of Article 130 of the Constitution in that sitting.
6. According to the petitioner he received the said order at 10-30 p.m. And as he was of the view that both, the Proclamation and the order were illegal, he represented in writing against the same to the President, the Governor and as a mark of protest did not participate in the Session of the Provincial Assembly held on 12-9-1995. On the same day the Speaker informed the Governor that the petitioner had failed to obtain a vote of confidence from the Assembly as a consequence of which by a notification issued on 12-9-1995, the petitioner was removed from the office of the. Chief Minister, Punjab with immediate effect. Simultaneously, another notification was issued on the same day i,e, 12-9-1995, whereby some amendments were made in the Rules of Business transferring certain powers from the Chief Minister to the Governor.
7. In the events which happened, on 13-9-1995, Sardar Muhammad Arif Nakai (respondent No,3 herein) was elected unopposed as Chief Minister of Punjab securing 152 votes. He took oath of his office on 13-9-1995 and later on, on 14-9-1995 obtained a vote of confidence with 148 votes to his credit. In the meanwhile, on 13-9-1995, the President had revoked the Proclamation issued on 5 -9- 1995.
8. According to the petitioner, issuance of Proclamation under Article 234 of the Constitution, the order calling upon him to obtain vote of confidence, his subsequent removal from the office of the Chief Minister and the appointment/election of respondent No,3 in his place were illegal, unlawful, void, mala fide and without jurisdiction for various reasons as detailed in the petition.
9. The respondents have filed separate written statements in which various preliminary objections as to the maintainability of this petition were raised, inter alia, that the petitioner had no cause of action as he had lost support of the political parties which had elected him as Leader of the House; that the petition was mala fide and was, in any case. Liable to be dismissed on account of laches, acquiescence, conduct of the petitioner and suppression of material facts. On merits it was stated that on the basis of the report of the Governor and information received from other sources the President was satisfied that a situation had arisen in which the Government of Punjab could not be carried on in accordance with the provisions of the Constitution and as such he was justified in issuing Proclamation on the advice of the Prime Minister. It was explained that the petitioner had been elected as Chief Minister with the help of Pakistan Democratic Front, a coalition comparising of Pakistan People's Party and Pakistan Muslim League (Junejo Group) and as he had lost confidence of the Members belonging to the two parties he was required by the Governor to take vote of confidence under Article 130(5) of the Constitution which he failed to do with the result that he was removed from the office in accordance with the Constitution and the law.
10. In support of this petition Mr. S.M. Zafar, learned counsel for the petitioner, in the first instance, challenged the validity of the Proclamation issued by the President of Pakistan under Article 234 of the Constitution. He pointed out that the circumstances which led to the so-called "satisfaction" of the President that a situation had arisen in which the Government of Punjab cannot be carried on in accordance with the provisions of the Constitution have not been spelt out in the Proclamation itself but in the written statement filed by the Federation (respondent No,1), it has been explained that as a large number of Ministers and Advisers had resigned from the Cabinet and a majority of Members of the coalition had expressed their no-confidence in the petitioner there was ample justification for invoking Article 234 of the Constitution. In the submission of the learned counsel, even if the facts stated in the written statement are taken to be correct yet no case for invoking of Article 234 was made out inasmuch as the resignations of the Ministers/Advisers from the Cabinet cannot lead to the inference that the Government cannot be run in accordance with the Constitution. It was further pointed out that the Constitution itself provides remedy in the form of Article 130(5) under which the Governor can direct the Chief Minister to obtain a vote of confidence or resort can be had to Article 136 of the Constitution under which a vote of no confidence can be passed against the Chief Minister. In support of this contention the, learned counsel relied upon the cases of Kh. Ahmad Tariq Rahim v. The Federation of Pakistan and another (PLD 1992 SC 646), Federation of Pakistan and others v. Haji Saifullah Khan and others (PLD 1989 SC 166), Mian Muhammad Nawaz Sharif v. President of Pakistan and others (PLD 1993 SC 473) and Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738). It was elaborated that the petitioner having been validly elected as Chief Minister had a fundamental right to remain in office till removed.
11. Mr. S.M. Zafar went on to contend that as by virtue of the Proclamation issued under Article 234 of the Constitution the petitioner had ceased to function as Chief Minister, he could not have been asked by the Governor to take a vote of confidence and in doing so the Governor had not only violated Article 130(5) of the Constitution but also the proclamation issued by the President by virtue of which the petitioner had been directed not to function as Chief Minister.
12. On these premises the learned counsel maintained that the Proclamation of the President under Article 234 and the order of the Governor under Article 130(5) of the Constitution suffer from malice in law having been issued for extraneous considerations and not for the purpose contemplated by the two Constitutional provisions and the real object was to remove the petitioner from the office of the Chief Minister by one method or another. Mr. S.M. Zafar stated that though he had in the petition also impugned the proclamation and the order of the Governor on the basis of mala fide in fact but in view of the denial of the respondents in the written statements the matter had become a disputed question of fact, he does not seek decision on that basis but would confine his attack to malice in law.
13. The last ground of attack of the learned counsel on the order of the Governor was that it was unjust, unfair, unreasonable and arbitrary inasmuch as it denies reasonable time and sufficient opportunity to the petitioner to obtain a vote of confidence and the discretion vesting in the Governor under Article 130(5) of the Constitution has been misused.
14. On behalf of the respondents' arguments were opened by Mr. Fakharud-Din G. Ebrahim, Advocate, who represented the Governor of the Province of Punjab (respondent No,4). The learned counsel at the very outset stated that he would like to make certain general observations which were that neither the question of Provincial autonomy nor any conflict of the Federation or the Provinces nor violation of fundamental rights or public interest' was involved in the case which only concerns an individual namely the petitioner and his interest alone. He stated that by filing this petition, the petitioner intended to achieve personal' gain in violation of the mandate of the electorate and the ultimate sovereign i,e, the people of Punjab. According to the learned counsel the two important issues arising in this case are parameters of Article 234 of the Constitution and the real meanings of expression "cease to perform his functions" as mentioned in the Proclamation issued under the aforesaid Article.
15. Mr. Fakhar-ud-Din G. Ebrahim also emphasised that the petition was not only mala fide but was also baseless, malicious and vexatious and its real object was to defame the respondent No,4 who occupies the high position of Governor of Punjab and had retired as Lieutenant-General of Pakistan Army. According to the learned counsel, the petition was nothing but an abuse of the process of the Court. He elaborated that document No, 1 filed along with C.M.5/96 to show that there was conspiracy hatched by respondent No,4 to remove the petitioner from his office was fabricated, forged and had been produced with a view to obtain favourable order. Mr. Fakhar-ud-Din G.
Ebrahim was of the view that as the petitioner had made specific allegation regarding mala fide of facts, he must be asked to prove the same.
16. At that stage, two applications (C.M. No, 2303/96 and C.M. No,2304/96) were moved by the learned counsel. In the first application it was prayed that the petitioner be directed to prove the allegations and second was for the prosecution of the petitioner under section 476, Cr.P.C. It may also be stated that another application (C.M. No,2306/96) was filed by the Federation of Pakistan through Mr. Aitzaz Ahsan, Advocate while the learned Advocate-General, Punjab on behalf of the Provincial Government moved another application in both of which the prayer made was that the petitioner be asked to appear in the Court for the purpose of cross-examination in respect of the affidavit sworn by him.
17. All these applications were opposed by Mr. S.M. Zafar, learned counsel for the petitioner who explained that document No,1 annexed with C.M. No, 5/96 which was being dubbed as forged and fabricated by the learned counsel for the respondents was a publication and had not been fabricated by the petitioner. According to the learned counsel, the publication in question had appeared firstly in the form of a booklet published by Dr. A. Basit, Advocate titled "Legal Opinion", then reported in the daily 'fang' and was produced by the Leader of the Opposition in the Punjab Provincial Assembly. Relying upon the pronouncement of the Supreme Court in the Islamic Republic of Pakistan through Secretary, Ministry of Interior and Kashmir Affairs, Islamabad v. Abdul Wali Khan (PLD 1976 SC 57), the learned counsel submitted that as the Governor of Punjab had at no stage denied or contradicted the publication, the petitioner was entitled to believe that the contents of the publication were correct and was therefore justified in filing the said document alongwith C.M. No,5/96.
18. It was pointed out by the learned counsel that in the parawise comments submitted by respondent No,1 the allegations about conspiracy having been hatched by the Governor were not disputed. Mr. S.M. Zafar further. Explained that though he had not given up the plea of malice in fact but as on account of the denial of the Governor of Punjab the contents of the document had become . Disputed he does not seek a decision on this ground as normally disputed questions of fact are not gone into in the proceedings under the Constitutional jurisdiction.
19. After having heard the learned counsel for the parties, we on 6-10-1996 observed that these applications shall be decided after the arguments of the parties had concluded on merits of the case.
20. Continuing with his arguments, Mr. Fakhar-ud-Din G. Ebrahim had explained that the proclamation under Article 234 was issued by the President and not the Governor and besides the report of the Governor, the President had other material also before him. So far as the report of the Governor is concerned, the learned counsel submitted that it was based upon the bona fide assumption of the Governor that because of the resignations of the members and the Ministers belonging to the Pakistan People's Party the functioning of the Government had been seriously impaired and it was not in the interest of the Constitutional democracy that a Chief Minister who does not command the confidence of the majority of the Members should be allowed to continue as such.
21. According to Mr. Fakhar-ud-Din G. Ebrahim, the case of Mian Muhammad Nawaz Sharif v.
President of Pakistan and others (PLD 1993 SC 473) as also that of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166) have no relevance as in those cases Article 58(2)(b) and not Article 234 of the Constitution had fallen for consideration which entirely dealt with different situation. Mr. Fakhar-ud-Din G. Ebrahim further argued that Proclamation under Article 234 of the Constitution was issued by the President on the advice of the Prime Minister which cannot be gone into by this Court in view of Article 48(2) of the Constitution.
The learned counsel submitted that in order to justify the issuance of Proclamation under Article 234, it is not necessary to produce any material before the Court.
22. According to Mr. Fakhar-ud-Din G. Ebrahim, the Governor in the situation then prevailing had two options, firstly, to straightaway ask the petitioner to obtain vote of confidence from the Assembly under Article 130(5) of the Constitution or to bring the confusion, tension and extraordinary situation prevailing at that time to the notice of the Federal Government so as to enable it to take remedial measures necessary for the proper governance of the Government and to avoid any misuse or abuse of his office by the Chief Minister. While referring to the documents annexed to the written statement, according to the learned counsel, the Governor of Punjab was justified in making the report, as he did, to the higher Authorities, who were better informed.
23. So far as the argument that during existence of Proclamation under Article 234 of the Constitution, the Governor could not have asked the Chief Minister to take vote of confidence, Mr. Fakhar-ud-Din G. Ebrahim drew distinction between the "holding of office" and "functioning of the Chief Minister". He elaborated that though by virtue of the Proclamation the Chief Minister had become non-functional but he remained to be a Chief Minister and, therefore, could be asked to.
Take vote of confidence. The learned counsel took pains to draw distinction between the expressions "holding of office" and "performing functions of office".
' As regards the contention of Mr. S.M. Zafar, Advocate that the petitioner was not allowed reasonable time or opportunity to obtain vote of confidence, Mr. Falchar-ud-Din G. Ebrahim, Advocate submitted that there was no time limit fixed in the Constitution nor in the Rules of Procedure of the Punjab Provincial Assembly and the time allowed to the petitioner was sufficient to show that he commanded the confidence of the majority.
24. In the last, the learned counsel tried to point out the grave and serious consequences which would flow if this petition is accepted and the petitioner is restored to office resulting in removal of Sardar Muhammad Arif Nakai as Chief Minister, who after receiving a vote of confidence more than one year one month ago is functioning as Chief Minister and there was no justification for thrusting upon the people a Chief Minister who has since long lost confidence of the majority. Mr. Fakhar-ud- Din G. Ebrahim stated that it was true that in the ultimate analysis it is the floor test which determines who is to remain as a Chief Minister but in the present case this requirement has been fulfilled in view of the fact that Sardar Muhammad Arif Nakai had obtained a vote of confidence from the Assembly and was functioning as a Chief Minister without any difficulty. Reference in this connection was made by the learned counsel to the cases of Kh.Ahmad Tariq Rahim v. The Federation of Pakistan and another (PLD 1992 SC 646) and Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.-W.F.P. And another (PLD 1995 SC 66).
25. Reiterating his contention that in the circumstances of the case no relief should be granted to the petitioner, the learned counsel submitted that this Court should consider the interest of an individual in juxtaposition to the interest of the majority of the Members of the Provincial Assembly.
It was next objected that the petition was barred by lathes as the same was filed after a period of more than one month of the issuance of Proclamation under Article 234 of the Constitution. By referring to the news items appearing in various newspapers, it was contended that the petitioner had welcomed the appointment of Mr. Nakai as Chief Minister and pledged support to him.
26. On the conclusion of address of Mr. Fakhar-ud-Din G. Ebrahim, Advocate, Mr. Aitzaz Ahsan, learned counsel for. The Federation of Pakistan commenced his arguments. He argued that mainly six questions arise for determination in the case; firstly, whether there was any material to sustain the plea of malice in law, whether the malice of the Governor has any relevance under Article 234 of the Constitution; secondly, as to whether there was any nexus between Article 234 of the Constitution and Article 130(5) thereof; whether on the admitted facts the conduct of the petitioner justifies grant of any relief to him; whether the President was justified in invoking the provisions of Article 234 of the Constitution and had he any other alternative option; whether the Courts can pry into the internal proceedings of Assembly and whether a Chief Minister who has been asked not to function can be asked to take a vote of confidence and lastly, as to whether the petitioner was entitled to the discretionary relief prayed for by him.
' Elaborating his contentions, the learned counsel urged that the petitioners has taken a positive stand that the Proclamation was mala fide but no details of mala fides of the Governor, the Prime Minister on whose advice Proclamation was issued, and the President, have been given as required by law. He emphasised that unless the petitioner can establish malice on facts by producing positive proof the Proclamation under Article 234 of the Constitution issued by the President cannot be struck down. According to the learned counsel, the Proclamation of the President was based not only on the report of the Governor but also on information obtained from other sources. In this respect, the learned counsel referred to various documents filed by respondent No,2 along with its written statement so as to show that there were serious complaints of irregularities and misappropriation against the petitioner. It was submitted that the cumulative effect of the reports was that the President could honestly come to the conclusion that the Government of Punjab could not be run in accordance with the Constitution.
27. Mr. Aitzaz Ahsan, Advocate then argued that the petitioner is estopped by his conduct from challenging the proclamation or appointment of respondent No,3 as Chief Minister as he had welcomed Mr. Nakai and pledged full support to him.
28. So far as Article 234 of the Constitution was concerned, according to the learned counsel, it could justifiably be invoked by the President on the report of the Governor to the effect that all the Ministers belonging to the Pakistan People's Party had resigned from their offices, it was argued that in any event, the two parties forming coalition still remains intact and only the petitioner has been substituted by Sardar Muhammad Arif Nakai.
29. As regards the assertion of Mr. S.M. Zafar, Advocate that the action taken by the President militates against the Federal Character of our country, the learned counsel pointed out that in all Constitutional systems the Federal Government retains the power to intervene in the event of any disturbance or to take such remedial measures in order to prevent the Constitutional machinery being broken. According to the learned counsel, the Supreme Court of Pakistan, in the case of Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.-W.F.P. Etc. PLD 1995 SC 66) has itself drawn distinction between the provisions of Article 58(2)(h) and Article 234 of the Constitution and as such the cases of Mian Muhammad Nawaz Sharif, Kh. Ahmad Tariq Rahim and Haji Saifullah Khan supra could not be relied upon. His further argument in this behalf was that different principles would apply where the Government comprises of coalition partners and where the Government is of a single party having majority. Mr. Aitzaz Ahsan pointed out that nowhere in the petition has it been alleged that the petitioner commanded confidence of the majority, so much so, plea to this effect was taken in the written statement by the respondents but it was not denied in the rejoinder.
30. We also heard Raja Muhammad Anwar, Advocate Mr. S.M. Masood, Advocate and Mian Abdul Sattar Najam, learned Advocate-General, Punjab who raised substantially the same contentions as have been argued by Mr. Fakhar-udDin G. Ebrahim and Mr. Aitzaz Ahsan. Raja Muhammad Anwar also challenged the jurisdiction of this Court to examine the validity of Proclamation in view of Article 236(2) of the Constitution. In this behalf he relied upon Mian Jamal Shah v. The Member, Election Commissioner etc. PLD 1966 SC 1 and Federation of Pakistan etc. v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26). He also took up the objection that the appointment/election of Sardar Muhammad Arif Nakai, respondent No,3 cannot be challenged in these proceedings as it would amount to collateral attack. The learned counsel placed reliance on the case of Lt. Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98) and Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738). It was explained by the learned counsel that resort to Article 234 of the Constitution was necessary as otherwise the petitioner having been asked to take vote of confidence could have dissolved the Provincial Assembly. It was emphasised by Raja Muhammad Anwar, Advocate, that the petitioner has nowhere in the petition claimed that he continued to enjoy the confidence of majority of the members.
31. The learned Advocate-General, Punjab objected to the locus standi of the petitioner to maintain this, petition as he was of the view that the petitioner cannot claim to be aggrieved person and it was only the Members of the Provincial Assembly who could have raised justifiably any such grievance. It was also pointed out that earlier W.P.12401/95 had been filed by Mr. M D. Tahir, Advocate on 14-9-1995 in which the petitioner was a party but he did not come forward to agitate his grievance at that time and instead filed the present petition after the dismissal of the aforementioned writ petition. The learned Advocate-General pointed out that political system in Pakistan is based upon majoritarian rule and nobody can claim to be the Chief Minister unless he is backed by the majority of the members. As regards the plea that the time allowed in the notice for obtaining vote of confidence was unreasonably short, the learned Advocate-General submitted that it is for the Governor to ensure the presence of the Members of the Assembly in such a meeting which he did and on account of the arrangement made by him overwhelming majority of the Members was present in the meeting called for the purpose. He pointed out that no such grievance that the notice was short was made by any Member of the Assembly and it is the Members who have to exercise the right of vote who can raise such a grievance and not the petitioner.
32. During the course of hearing two applications were filed one by four Members and the other purportedly signed by 134 Members of the Provincial Assembly for being impleaded as party. Those applications were, however, disposed of by observing that though the Members cannot be said to be necessary or proper parties yet we would grant hearing to the counsel representing them.
Consequently Raja Mahmood Akhtar, Advocate, who appeared for the Members was also heard.
He, in the first instance, criticised the corrupt practices like horse-trading and other maladies in our political system and beseeched us to ensure that these practices are rooted out, by enforcing Articles 62 and 63 of the Constitution which according to the learned counsel have uptil now remained as ornamental pieces. He went on to argue that Article 130(5) and Article 234 were complementary and could be invoked by the competent Authorities. He also submitted that Article 234 ibid which was part of the original Constitution was superior to Article 130(5) of the Constitution which was inserted later on by an amendment in the Constitution.
33. At the end Syed Iqbal Haider, learned Attorney-General for Pakistan also addressed us. The main burden of his argument was that in our political system primacy is given to the political parties and not to individuals and as the petitioner had lost confidence of political parties which had elected him he had no right to remain in office. As regards the proclamation issued under Article 234, the learned Attorney-General for Pakistan stated that this Court can only interfere with it if the same was without jurisdiction, coram non judice or mala fide but in the petition, the Proclamation has not been challenged on any of those grounds and as such it was immune from scrutiny by this Court in the exercise of its Constitutional jurisdiction.
34. It was next argued that in the facts and circumstances of the case, the President was justified in issuing the Proclamation. According to the learned Attorney-General, a Chief Minister, who has been asked not to function can justifiably be asked to take a vote of confidence as notwithstanding the Proclamation he continued to hold the office though he could not function as such. Reliance was placed by him on Malik Ghulam Mani v. Mr. Justice Muhammad Gni. Judge Supreme Court of Pakistan (1978 SCMR 110) and Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738).
35. It was then argued by the learned Attorney-General that the question as to who enjoys confidence of the majority of the Members was a political question and was in any event, a disputed question of fact, which should not be resolved by this Court.
36. He laid great stress on the conduct of the petitioner which according to him disentitled him to seek the exercise of discretion in his favour. It was argued that if the petitioner is restored to his office much confusion and chaos would arise and it is the bounden duty of this Court to obviate any such eventuality. He cited Brig. (Retd) Imtiaz Ahmad v. Government of Pakistan through Secretary Interior. Islamabad and 2 others (1994 SCMR 2142), Federation of Pakistan and others v.
Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 646) and Mian Muhammad Nawaz Sharif v.
President of Pakistan and others (PLD 1993 SC 473) in support of his argument.
37. Before adverting to the contentions raised by the learned counsel for the parties, it would he benefit to state some of the features of our Constitution. Admittedly, Pakistan is an Islamic Republic having Federal character as is stated in Article 1 of the Constitution. In such a system there is a clear division and demarcation of powers between the Federation and the Federating Units. The Federation cannot claim any ascendancy over its Units.
38. Although we agree with Mr. Aitzaz Ahsan that the division of powers between the Federation and its Units must yield to supreme interest of unity and solidarity of Federation and in the event of emergency or calamity like Constitutional breakdown. Federation must possess the necessary power to intervene but this power besides being drastic constitutes an inroad into the Provincial autonomy and if not properly used can destroy equilibrium between the Federation and the Federating Units which besides leading to the Units which is not healthy for a Federation. As pointed out by late Mr. A.K. Brohi in his treatise titled Fundamental Law of Pakistan, First Edition, 1958, at page 277, when a Proclamation of Emergency is enforced, the federal character of a polity gets transformed into one of unitary form and the National Government becomes the paramount and supreme authority within the country. The following statement of law appears in an Introduction to the Study of the Law of the Constitution by A.V. Dicey, 10th Edition, at page 151:-- "The distribution of powers is an essential feature of Federalism. The object for which a Federal State is formed involves a division of authority between the National Government and the separate States. The powers given to the nation form in effect so many limitations upon the authority of the separate States, and as it is not intended that the Central Government should have the opportunity of encroaching upon the rights retained by the States, its sphere of action necessarily becomes the object of rigorous definition."
39. A reference to Constitution of various countries where the Federal system is in vogue like United States of America and Canada shows that no such specific power is reserved in the Constitution while in other countries intervention by the Federation is permitted only in the event of external aggression or internal disturbances beyond the control of the Federating Units. However, under our Constitution the Federation has been granted power to intervene in the event of emergency which may be physical, fiscal or Constitutional in nature. Article 234 of the Constitution deals with the last kind of emergency. Similar is the language of Article 356 of the Indian Constitution and section 92- A of the Government of India Act. 1935, as amended.
40. In the case of Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) the Supreme Court of Pakistan at page 829 while construing the nature of Article 234 observed that:-- "There can be no cavil with the a road proposition canvassed by Mr. Sharif-ud-Din, that in a Constitution based on a Federal democratic concept an emergency provision of the nature of Article 234 ibid is necessary to preserve the system but the exercise of this power, which undoubtedly has a far-reaching and drastic consequences, is not left by the framers of Constitution totally unbridled and uncontrolled. The commentators on Constitutional Laws have also expressed great circumspection on the exercise of such power by a functionary vested with the discretion under the Constitution."
' Again at page 831, it was observed that:- "From the above comments, it is quite clear that while existence of a provision in the nature of Article 234 ibid has been felt necessary in a Constitution based on Federal democratic structure but at the same time the abuse of the exercise of such powers by the functionaries vested with the discretion under the Constitution for the purposes alien to the scope of such provision cannot be ruled out totally."
41. While commenting on Article 356 of Indian Constitution which is akin to Article 234 of our Constitution H.M. Seervai in his commentary on Constitutional Law of India (3rd Edition, Volume 2) at page 2628, paragraph 29.22 states that:-- "It is clear from the judgments of the Privy Council and our Supreme Court cited above, that the literal meaning of an Article ought not to be given to it if it practically destroys the autonomy of the States. In this connection, it may be noted that if the framers of our Constitution had intended that the Union should be able to supervise and interfere in the administration of States to secure good Government the framers would have adopted a unitary Constitution for India with a large devolution of power in favour of the States. The very fact that the framers enacted a Federal Constitution with a Parliamentary form of Government for the Union and the States shows that internal sovereignty was to be divided between the Union and the States. A literal construction of the wide general words of Article 356 which could enable the Union Executive to cut at the root of the democratic parliamentary form of Government. In the States must be rejected in favour of a construction which would preserve that form of Government. The exercise of that power must be limited to a failure of "Constitutional machinery", that is to preserving the Parliamentary form of Government from internal subversion, or from a deliberate deadlock created by a party or a group of parties, or from a deadlock arising from an indecisive electoral verdict which makes the carrying on of Government practically impossible."
It follows from the above that the provisions like Article 234 which are in the nature of an exception must be sparingly used and strictly construed.
42. Keeping in view these broad principles the contentions of Mr. S.M. Zafar may be examined but before doing that it appears pertinent to reproduce Article 234 of the Constitution which reads as under:--- "Power to issue Proclamation in case of failure of Constitutional machinery in a Province.--(l) If the President, on receipt of a report from the Governor of a Province or otherwise is satisfied that a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution, the President may, or if a resolution in this behalf is passed at a joint sitting shall, by proclamation--
(a) assume to himself or direct the Governor of the Province to assume on behalf of the President, all or any of the functions of the Government of the Province, and all or any of the powers vested in, or exercisable by anybody or authority in the Province, other than the Provincial Assembly;
(b) declare that the powers of the Provincial Assembly shall be exercisable by, or under the Authority of (Majlis-e-Shoora (Parliament); and
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the proclamation, including provisions for suspending in whole or in part the operation of any provisions of the Constitution relating to anybody or authority in the Province: ' Provided that nothing in this Article shall authorise President to assume to himself, or direct the Governor of the Province to assume on his behalf, any of the powers vested in, or exercisable by, a High Court or to suspend either in whole or in part the operation of any provisions of the Constitution relating to High Courts.
(2) ..... . . . ......... .
(3) ..... . . ......... .
(4) ..... . . . ......
(5) ..... ......... .
(6)
43. On the language of Article 234 of the Constitution, it is apparent that the power granted to the President to issue Proclamation is not unbridled or uncontrolled but is circumscribed by two conditions firstly, that the President must be satisfied and secondly, that the satisfaction must be that the affairs of the Province cannot be run in accordance with the Constitution. 'Satisfaction' is a word much stronger than mere opinion and has its own connotation. (See Syed Saeed Hassan v.
Pyar Ali and 7 others (PLD 1976 SC 6) and Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14)
44. In view of the clear pronouncement of the Supreme Court in Pir Sabir Shah's case supra we cannot accept the argument of Mr. Aitzaz Ahsan, Advocate that the satisfaction of President under Article 234 of the Constitution is subjective in nature and cannot be judicially reviewed. On the other hand, whatever be the position in India, so far as Pakistan is concerned, it is well- settled that the satisfaction must be objective and based upon some material having nexus with the purposes of Article 234 of the Constitution. It is true that this Court cannot sit in appeal over the satisfaction of the President nor can it substitute its own opinion for that of the President but nevertheless it must be shown that the material on the basis of which the President has acted is relevant to the conditions mentioned in Article 234 of the Constitution. This aspect of the case need not be dilated upon any further in view of the pronouncement of the Supreme Court in Pir Sabir Shah's case appearing at page 839 of the report which may be reproduced with advantage:-- "In view of the above, discussed legal position, I am of the view that the satisfaction of the President under Article 234 ibid with regard to the existence of a situation in which the Government of the Province cannot be run in accordance with the provisions of the Constitution cannot be treated subjective. The satisfaction of the President in this regard must be based on existence of objective conditions justifying issue of Proclamation under Article 234 ibid. However, the Court while examining the material used by the President in forming his satisfaction as to the existence of conditions mentioned in Article 234 ibid cannot sit as a Court of appeal and inquire into sufficiency or otherwise of the material. If the Court finds that the material used by the President in arriving at his satisfaction bears nexus to the objects of Article 234 ibid it cannot interfere with the Proclamation on the ground that there was not sufficient material before the President to express his satisfaction with regard to the existence of conditions which would justify issuance of Proclamation under Article 234 ibid."
45. The expression that the affairs of the Province cannot be run in accordance with the Constitution, has been the subject-matter of interpretation by the Supreme Court of Pakistan in the cases of Federation of Pakistan v. Haji Saifullah Khan (PLD 1989 SC 166), Kh. Ahrnad Tariq Rahim v.
The Federation of Pakistan and another (PLD 1992 SC 646), Mian Muhammad Nawaz Sharif v.
President of Pakistan and others (PLD 1993 SC 473) and Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738). The ratio of all these cases is that in order to show that the affairs of the Federation or the Province, as the case may be, cannot be run in accordance with the Constitution, it must be demonstrated that there was a deadlock or a Constitutional breakdown or the existence of a situation not contemplated by the Constitution and for which it does not otherwise cater for or provides a remedy. It' a situation can be remedied by following other provisions of Constitution, action under Article 58 (2) (b) or Article 234 of the Constitution cannot be taken.
46. In 'Mian Muhammad Nawaz Sharif's case supra, exposition of law by the Supreme Court of Pakistan is in the following words: ' From the above discussion it would appear that the expression the Government of Federation cannot be carried on in accordance with the provisions of the Constitution' in Article 58 (2) (b) supra contemplates a situation where the affairs of the Government are not capable of being run in accordance with the provisions of the Constitution either on account of persistent, deliberate and continued violation of various provisions of the Constitution by the Government in power, or on account of some defect in the structure of the Government, its functioning in accordance with the provisions of the Constitution is rendered impossible. The use of expression 'cannot be carried on' necessarily imports an element of impossibility and disability and refers to a irretrievable and irreversible situation. An unintentional and bona fide omission to follow a particular provision of the Constitution, not resulting in the breakdown of Government machinery or creating a situation of a stalemate or deadlock in the working of the Government, will not be covered in the situations contemplated under Article 58(2)(b) of the Constitution."
47. Faced with this situation, Mr. Fakhar-ud-Din G. Ebrahim and other counsel appearing for the respondents attempted to argue that the ratio in Mian Muhammad Nawaz Sharif's case supra and Haji Saif Ullah Khan's case supra cannot be applied here as those cases arose under Article 58(2)
(b) of the Constitution while in the present case provision in question is Article 234 of the Constitution. We are unable to agree with the learned counsel. Mr. Falchar-udDin G. Ebrahim has himself relied upon the observations of Ajmal Mian, J. In Pir Sabir Shah's case supra at page 792, paragraph 60 where the distinction between Article 58 (2) (b) and Article 234 of the Constitution has been noted in the following words: "1 may at this juncture point out that the language employed in clause (1) of Article 234 is not identical to that used in Articles 58(2)(b) and 112(2)(b) of the Constitution inasmuch as the words ' and an appeal to the electorate is necessary' have been omitted in the former meaning thereby that an action under the said provision is of a temporary nature, which does not necessitate an appeal to the electorate. So the expression a situation has arisen in which the Government of the Province cannot be carried on in accordance with the provisions of the Constitution' will have different connotation while construing clause (1) of Article 234 than what it means in Article 58(2)
(b) or Article 112(2)(b) of the Constitution. In the former case, it is a temporary breakdown of the Constitutional machinery not necessitating an appeal to the electorate, but in the latter case the breakdown of the Constitutional machinery is total necessitating an appeal to the electorate for a new mandate. The above expression in context to Article 58(2)(b) of the Constitution has been construed by this Court in the case of Muhammad Saif Ullah (supra) and Muhammad Nawaz Sharif (supra), which still holds good."
48. It is obvious from the above that the differences noted by the Supreme Court between the two Constitutional provisions were; firstly that while under Article 58(2)(b) an appeal to the electorate is necessary, it is not so where action is taken under Article 234 of the Constitution and secondly that while in the former case it is necessary to show that breakdown of Constitutional machinery was total, in the latter case breakdown may be temporary not necessitating appeal to the electorate. It is however clear that even in case of proclamation issued under Article 234 it must be demonstrated that there is breakdown of Constitutional machinery though temporary in nature.
49. Subject to these distinctions pointed out by the Supreme Court itself, the rule laid down in Haji Saif Ullah and Muhammad Nawaz Sharif's cases would clearly apply while interpreting the expression "the Government cannot be run in accordance with the Constitution" even in a case arising under Article 234 ibid. This is clear from the last three lines of the above-quoted paragraphs wherein it has been observed that the said expression has been construed by the Supreme Court in the cases of Haji Saif Ullah and Mian Muhammad Nawaz Sharif supra. Same view was taken by Saeed-uz-Zaman Siddiqui, J. In Sabir Shah's case supra at page 838 of the report.
50. No authority has been cited by the learned counsel for the respondents where the expression "affairs of the Province cannot be run in accordance with the Constitution" has been differently interpreted. Even in India, in the context of Article 356 of the Constitution which is similar to Article 234 of our Constitution, the expression has been held to mean the breakdown and failure of Constitutional machinery. Reference may be made to the recent case of S.R. Bommai and others v.
Union of India and others (AIR 1994 SC 1918) wherein while defining the said expression, it was observed by P.B. Swant, J. At page 1923:-- "The word 'cannot' emphatically connotes a situation of impasse. In Shorter Oxford Dictionary the word: 'can' is defined as 'to be able; to have power or capacity'. The word 'cannot', therefore, would mean not to be able' or 'not to have the power or capacity'. Hence situations which can be remedied or do not create an impasse, or do not disable or interfere with the governance of the State according to the Constitution, would not merit the issuance of the Proclamation under the Article."
51. From the above cases the principles which can be called out is that unless it is shown that the Constitutional machinery has broken down or there is a deadlock or impasse it cannot be said that the affairs of the Province cannot be run in accordance with the Constitution. Further, if the situation can be remedied by following another provision of Constitution which caters for it proclamation under Article 234 cannot be issued.
52. The Proclamation issued by the President has been reproduced in paragraph 4 above. It does not spell out the circumstances which led to the satisfaction of the President that the affairs of the Province cannot be run in accordance with the Constitution nor have reasons for arriving at such a conclusion been given. Originally a copy of the report of the Governor on the basis of which Proclamation was issued was not produced before us but towards the end of the case the learned Attorney-General placed a photo stat of the report on record saying that Mr. Fakhar-ud-Din G.
Ebrahim, learned counsel representing respondent No, 2 has asked him to do so. This report is in the nature of a letter addressed to the Prime Minister and reads as under:-- "My dear Prime Minister, 5-9-1995 ' A significant segment of the Punjab Cabinet has resigned. The Province cannot be governed in accordance with the Constitution and I recommend action under the relevant provision of the Constitution.
(Sd.)
Ltd.-Gen. (Retd.)
(RAJA SAROOP KHAN)."
53. It will be appreciated that the only reason given by the Governor for stating that the affairs of the Province cannot be run in accordance with the Constitution was that considerable number of the Members of the Punjab Cabinet had resigned. It is, however, not clear from the report that what was the total strength of the Cabinet and how many Ministers or Advisers had resigned. Be that as it may, we are clear in our mind that resignations of some or even considerable number of the Ministers cannot constitute a situation in which it can legally be said that the affairs of the Province cannot be run in accordance with the Constitution. In law the resignations of the Ministers are totally alien and have no relevance for the purpose of determining whether such a situation exists.
We need not dilate upon this aspect of the matter as it has been examined by the Supreme Court of Pakistan in the case of Mian Muhammad Nawaz Sharif, supra. In the case before the Supreme Court one of the reasons for issuing the order of dissolution under Article 58(2)(b) of the Constitution which uses similar expression was that some of the Ministers had resigned. While dealing with this aspect Shafi-ur-Rehman, J. At page 626 made the following weighty observations:-- "Resignations from the Cabinet are not at all a sure indication of lack of confidence in the Government nor do they affect or impair the smooth functioning of parliamentary democracy. In a book 'Cabinet Government in India' by R. J. Venkateswaran, the following observations have been made with regard to resignations by the Ministers in Chapter VI under the heading 'Remarkable Resignations' : -- 'Ministerial resignations are a normal feature in a Parliamentary democracy. Ministers may leave the Cabinet for many reasons---health, old age, or for taking up diplomatic or other assignments.
They may also retire voluntarily owing to serious differences in policy, or may be compelled to go by pressure of adverse public opinion or asked by the Prime Minister to quit for incompetence or for any other reason. In India there were many resignations from the Cabinet during the seventeen years of Nehru's regime, but here we are concerned only with those cases that involved important political and Constitutional implication'.
The resignations of the Ministers should not have found place at all in the dissolution order nor could they have been taken into consideration or formed ground for taking action under Article 58(2)(b) of the Constitution. They are wholly irrelevant.
(Underlining is mine).
54. The enunciation of law by the Supreme Court of Pakistan is not only binding on this Court but also on all functionaries of the State who are supposed to act in aid of the Supreme Court under Article 190 of the Constitution of Islamic Republic of Pakistan, (1973). We are, therefore, surprised that on the basis of mere resignations of some of the Ministers from the Provincial Cabinet the functionaries of two Governments could have come to the conclusion that the affairs of the Province cannot be run in accordance with the Constitution where there was no deadlock, impasse or breakdown of Constitutional machinery even temporary in the Province.
55. Learned counsel for the petitioner has pointed out that the Cabinet headed by the petitioner comprised of 25 Ministers and 24 Advisors out of whom 14 Ministers and 4 Advisors resigned. There is nothing on the record to show that these resignations resulted in impairment of the functions of the Government of Punjab in any manner. As already observed, resignations of Ministers are by itself not a ground for arriving at the conclusion that a situation had arisen where the affairs of the Province cannot be run in accordance with the Constitution. Even on factual plain therefore it is not shown that on account of resignations of the Ministers a Constitutional breakdown had occurred or that the functioning of the Government had been impaired.
56. Apart from the report of the Governor, no other material which was available before the President has been placed before us to show that a situation had arisen in which Government of the Province cannot be carried on in accordance with Constitution. However, in the proclamation, there is a recital that some information from other sources was available with the President.
Unfortunately, neither the nature of that information nor the source from which the same emanated has been disclosed. Even in the written statement filed by the respondents, there is no reference to any other information. But in para. 6 of the written statement, there is a vague assertion that there were other reasons before the President for coming to the conclusion that the affairs of the Province could not be run in accordance with Constitution. Again, there is no explanation as to the nature of those reasons and material upon which the same were based. But, during the course of arguments, all the learned counsel for the respondents' have contended that as the petitioner had lost confidence of the members of the coalition who elected him as the Chief Minister he could not remain in office. As already observed, this stand was not taken in the written statement by respondent No,1 and cannot, therefore, be allowed to be raised.
57. Be that as it may, even if it be assumed that there was some information available with the Governor or the President that the petitioner had lost confidence of the Members of the Assembly yet in law, this ground too is wholly irrelevant for the purposes of Article 234 of the Constitution inasmuch as the Constitution itself takes care of such a situation and ordains that in such an eventuality the Chief Minister must be put to floor test either by directing him to obtain a vote of confidence under Article 130(5) of the Constitution or by moving a vote of no-confidence against him. Neither the President nor the Prime Minister nor the Governor has any power or authority to act in any other mode or method. Consequently the contention of the respondents' learned counsel that since the petitioner had lost confidence of the members of the two parties forming coalition, the Governor and the President could, on the basis of their own information, take such an action cannot be accepted.
58. In the Constitution of Islamic Republic of Pakistan, 1973 as originally framed, there was no provision of the nature of Article 130(5) and the Chief Minister could only be removed through a resolution of no-confidence. However, by P.O. 14 of 1985. Article 130 was amended and sub-Article
(5) was inserted which was in the following terms:- "The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the members of the Provincial Assembly."
59. At that time the argument of the learned counsel for the respondents might have carried some weight that it is open to the Governor to satisfy himself of the fact that the Chief Minister has lost confidence of the majority of the Members through any method< However, the Constitution was further amended by the Constitution (Eighth Amendment) Act, 1985 and it now reads as under:--- "The Chief Minister shall hold office during the pleasure of the Governor, but the Governor shall not exercise his powers under this clause unless he is satisfied that the Chief Minister does not command the confidence of the majority of the Members of the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly."
The addition of the words "and require the Chief Minister to obtain a vote of confidence from the Assembly" leave no room for doubt that the only forum where the question of confidence or otherwise in the Chief Minister, can be determined, is the Assembly itself and the power in this respect vests in the members of the Provincial Assembly alone.
60. This question came up for consideration before the Supreme Court of Pakistan in the case of Pir Sabir Shah supra wherein it was ruled that:- "The words ' in which case he shall summon the Provincial Assembly and require the Chief Minister to obtain a vote of confidence from the Assembly' occurring in Article 130(5) of the Constitution of Pakistan were added by Constitution (Eighth Amendment) Act, 1985. In other words, the pleasure of the Governor is now controlled and restricted by providing that he cannot dismiss the Chief Minister unless he' is satisfied that the Chief Minister does not command the confidence of the majority and this satisfaction is not to be on the basis of personal assessment of the Governor but it is to be ascertained by summoning the Provincial Assembly and requiring the Chief Minister to obtain a vote of confidence. The above negative mandate contained in clause (5) cannot be nullified or rendered ineffective by sub-clause (c) of clause (1) of Article 234 by the President in exercise of incidental and consequential power contained therein."
In view of this clear pronouncement of the Supreme Court, the contention of the learned counsel for the respondents that the satisfaction of the Governor may be based upon other information like resignations of the Ministers or decisions taken in the party meetings, cannot be accepted.
61. The learned Attorney-General for Pakistan as also Mr. Faldw-ud-Din G. Ebrahim and the other counsel appearing on behalf of respondents, have laid great stress on the fact that in Pir Sabir Shah's case supra, the validity of the proclamation issued under Article 234 of the Constitution was upheld and, therefore, attack of the petitioner on a similar proclamation in the present case must be repelled.
62. We are surprised at such a contention being raised inasmuch as the facts of Pir Sabir Shah's case are quite converse to what has happened in the present case. There originally a resolution of no-confidence was moved against the Chief Minister which was to be considered by the Provincial Assembly on 23-2-1994. However, on that day, the Speaker expelled two members of the Assembly on the ground of defection which resulted in commotion and rumpus. Without putting resolution to vote, the Speaker adjourned the House to 31-3-1994. It was in those circumstances that an order was passed by the Governor under Article 130(5) ibid requiring Pir Sabir Shah to take vote of confidence on 26-2-1994 at 10-00 a.m. The Speaker, however, refused to summon the Assembly on the ground that the earlier session stood adjourned to 31-3-1994 and as such a new session could not be called. This attitude of the Speaker resulted in a Constitutional deadlock. It was in those circumstances that proclamation under Article 234 issued by the President was found to be valid by the Supreme Court of Pakistan. In the present case, the Governor, if he was of the view that the petitioner had lost the confidence of the majority, should have required the petitioner to take a vote of confidence by calling a Session of the Assembly as was done in Sabir Shah case. He instead sent a report to the Prime Minister on the basis of which the proclamation under Article 234 of the Constitution was issued on her advice. It is not the case of the respondents that apart from resignations of some Ministers, other circumstances which were present in Pir Sabir Shah's case had existed here also. The reliance of the respondents on Pir Sabir Shah's case is, as already discussed, rather goes against the respondents.
63. There appears to be some merit in the contention of the learned counsel for the petitioner that once having been elected to an office like Prime Minister or Chief Minister it is the Constitutional/fundemental right of that person to remain in office till he is removed in accordance with the provisions of the Constitution and any infringement of that right must be viewed with concern and disfavour. (See Mian Muhammad Nawaz Sharif's case pages, 559, 639 and 673).
64. In presence of the authoritative pronouncement of the Supreme Court in Pir Sabir Shah's case supra, it is not necessary to refer to any other case, yet reference may be made to the judgment of Indian Supreme Court in S.R. Bommai and others v. Union of India and others (AIR 1994 SC 1918) which was relied upon Mr. Aitzaz Ahsan himself that the observations in paragraph 77 of that judgment which are reproduced below, are completely destructive of his argument:--- "In this connection it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper course for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the Constitutionally ordained forum for seeking openly and objectively the claims and counter-claims in that behalf. The assessm ent of the strength of the Ministry is not a matter of private opinion of any individual, be the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is anathema to the democratic principle, apart from being open to serious objections of personal mala fides. It is possible that on some rare occasions the floor test may be impossible, although it is difficult to envisage such situation. Even assuming that there arises one, it should be obligatory upon the Governor in such circumstances, to state in writing, the reasons for not holding the floor test. The High Court was, therefore, wrong inholding that the floor test was neither compulsory nor obligatory or that it was not a prerequisite to sending the report to the President recommending action under Article 356 (1). Since we have already referred to the recommendations of the Sarkaria Commission in this connection, it is not necessary to repeat them here."
65. The learned Attorney-General laid great emphasis on the fact that Pakistan is a parliamentary democracy as envisaged by the Constitution in which primacy is given to the political parties and not to individuals. He sought to draw strength from the case of Ms. Benazir Bhutto v. Federation of Pakistan and another (PLD 1988 SC 416) and Mian Muhammad Nawaz Sharif v. President of- Pakistan and others (PLD 1993 SC 473). According to the learned Attorney-General, since the petitioner had lost support of the majority of the parties forming coalition with whose support he was elected as Chief Minister, the Governor need not have waited for a formal vote on the floor of the House.
66. While agreeing with the learned Attorney-General that in view of Article 17 of the Constitution as interpreted by the Supreme Court of Pakistan, the role of political parties cannot be understated but we are unable to accept his contention that an individual is wholly irrelevant or insignificant.
Clearly under the Constitution it is an individual who is elected as a Prime Minister or Chief Minister, as the case may be. As already observed, the question as to whether the Chief Minister enjoys confidence of the majority has to be decided on the floor of the Assembly by the Members and not by the President or the Governor nor even by the Court.
67. The learned Attorney-General himself submitted that the question as to whether the petitioner has lost confidence of the majority is not only political question but also a disputed question of fact which should not be gone into by this Court. Although the argument that the Court should not enter into political thicket has not been accepted by this Court in Kh. Muhammad Sharif v. Federation of Pakistan and 18 others (PLD 1988 Lahore 725) and by Balochistan High Court in Muhammad Anwar Durrani v. Province of Balochistan and others (PLD 1989 Quetta 25) as also by the Supreme Court of Pakistan in Federation of Pakistan v. Haji Saif Ullah Khan (PLD 1989 SC 166) wherein it has been ruled that if the question fore the Court though political in nature involves interpretation of Constitutional provision the Court is entitled to resolve the controversy. But as already observed, it is not within our domain or the Governor to decide this question which can only be determined by the Members of the Punjab Provincial Assembly and that too in a Session called for that V purpose.
68. Mr. Aitzaz Ahsan, learned counsel representing the Federation had argued that the above principles will have no application in a case where the Chief Minister had been elected by coalition and not by a single party. We have not been able to discover any principle on the basis of which such a distinction can be drawn nor has the learned counsel cited any case in support of his contention. On the other hand, in S. R. Bommai's case, decided by the Supreme Court of India, the facts of the case of Karanatak Province appear to be somewhat similar. There two parties had been merged and formed a single party to form a Government. Later on, some of the members wrote to the Governor that they had no confidence in the Chief Minister. On the basis of their letters, the Governor recommended action under Article 356 of the Constitution. The Supreme Court of India made the following observations which are fully applicable to the present case:--- "... The assessm ent of the strength of the Ministry is not a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is not open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle apart from being open to serious objection of personal mala fide. It is possible that on some rare occasions, the floor test may be impossible, although it is difficult to envisage such situation. Even assuming that there arise (1), it should be obligatory on the Governor in such circumstances to state in writing, the reasons for not holding the floor test. The High Court was, therefore, wrong in holding that the floor test was neither compulsory nor obligatory or that it was not 'a prerequisite to sending the report to the President recommending action under Article 356(1). Since we have already referred to the recommendations of the Sarkaria Commission in this connection. It is not necessary to repeat them here."
69. We may also state that it was contended by the learned counsel for the respondents that the fact that the petitioner has lost confidence of the majority of the Members of the Provincial Assembly stands admitted by him in the petition and the rejoinder filed by him but we, after going through the pleadings of the parties, are unable to find out any such admission.
70. It is pertinent at this stage to refer to the observations made by the Hon'ble Judges of the Supreme Court in the case of Mian Muhammad Nawaz Sharif supra on this question. At page 616 after referring Article 91(5) of the Constitution Shafi-ur-Rehman, J. (as his Lordship then was) was pleased to observe that: "The only way open to the President under the Constitution for coming to the conclusion whether the Prime Minister does or does not command confidence of the majority of the National Assembly is by summoning the Natinoal Assembly and requiring the Prime Minister to obtain a vote of confidence from the Assembly. Any other method adopted for achieving the object, for forming an opinion, for giving effect to it is impermissible.
' There are three positive compulsive indicators in this clause. Firstly, there is the use of negative imperative the President shall not exercise his powers'. It operates as a mandatory prohibition. The second is the statement of the jurisdictional requirement and coupling it to the exercise of powers by the use of the word 'unless'. The jurisdictional requirement is the satisfaction of the President that the Prime Minister does not command the confidence of the majority of the Members of the National Assembly. Thirdly, the only course left Constitutionally open for the President for arriving at his satisfaction in this matter to it 'summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly'. Such a comprehensiveness, such a clarity and such attention to the details is all in strict conformity with the established conventions of the Parliamentary Democracy, as practised in countries having no written Constitution."
' Again at page 687 of the report, Ajmal Mian, J. Was pleased to observe that:--- "I am inclined to hold that what cannot be achieved indirectly by pressing into service sub-clause
(b) of. Clause (2) of Article 58 of the Constitution. In this regard, it may be pertinent to mention that under clause (5) of Article 91 of the Constitution, it has been provided that the Prime Minister shall hold the office during the pleasure of the President but this pleasure is controlled by providing therein that the President shall not withdraw his pleasure under this clause unless he is satisfied that the Prime Minister does not command the confidence of majority of the Members of the National Assembly, in which case he shall summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly. If the Prime Minister failed to obtain a vote of confidence, the President is entitled to withdraw his pleasure by dismissing the cabinet and the Prime Minister."
' Saleem Akhtar, J. Was pleased to lay down at page 821 of the report "The exercise of pleasure by the President is conditional and not absolute. An embargo has been imposed on its exercise and the President is precluded from forming his opinion and satisfaction on the basis of anything but the votes given on the floor of the House. As our Constitution contains specific provisions for governing such a situation, and provides a procedure and manner for ascertaining the fact whether the Prime Minister has lost confidence of the House, no other mode of ascertainment can be adopted. It is a well-settled principle that if a statute provides anything to be done in a particular manner, no deviation from the given course is permissible. Any ascertainment of such fact in an unconstitutional manner or extraneous consideration cannot be made basis for removing the Prime Minister. It is thus clear that most of the resignations collected and delivered to the President could not be made basis for reaching the conclusion or satisfying himself that the petitioner did not command confidence of the majority of the National Assembly. The only course open for the President is to summon the National Assembly and require the Prime Minister to obtain a vote of confidence from the Assembly. The determination of such fact is not left to the President or any authority except the National Assembly. Such resignations could hardly be made a ground for dissolving the National Assembly."
71. In view of the above, it is idle on the part of the respondents to contend that the President or the Governor could have acted on any information obtained aliende dehors the Assembly.
72. The learned Attorney-General himself submitted that the question as to whether the petitioner has lost confidence of the majority is not only political question but also a disputed question of fact which should not be gone into by this Court. Although the argument that the Court should not enter into political thicket has not been accepted by this Court in Kh. Muhammad Sharif v. Federation of Pakistan and 18 others (PLD 1988 Lah. 725), and by Balochistan High Court in Muhammad Anwar Durrani v. Province of Balochistan and others (PLD 1989 Quetta 25) as also by the Supreme Court of Pakistan in Haji Saif Ullah Khan (PLD 1989 SC 166) wherein it has been ruled that if the question before the Court though political in nature involves interpretation of Constitutional provision the Court is entitled to resolve the controversy. But as X already observed, it is not within our domain to decide this question which can only be determined by the Members of the Punjab Provincial Assembly and that too in a Session called for that purpose and not by anyone else.
73. Mr. Aitzaz Ahsan, learned counsel representing the Federation also made reference to certain documents filed by respondent No,2 along with its written statement to show that on previous occasions also the Governor of the Punjab had been making reports to the President about "illegal activities" of the petitioner. It is, however, to be noted that there was no such averment in the written statement filed by respondent No,1 that this material was present before the President when he issued the proclamation or in the written statement of respondent No,1, it has not been stated that it was on the basis of this information that the President had acted.
74. Be that as it may, even if these documents are taken into consideration, no case for invocation of Article 234 of the Constitution is made out. The majority of these documents are letters written by late Ch. Muhammad Altaf Hussain, the former Governor of the Punjab in May/June 1994 complaining about deterioration in law and order situation. Out of the remaining documents, there are two letters addressed by Mr. Justice Muhammad Ilyas as acting Governor to the Prime Minister stating that the Chief Minister has appointed an advisor without informing him and a letter dated 28-6-1995 addressed by respondent No,4 to the Prime Minister in which his complaint is that the Chief Minister has allocated large number of development funds to his constituency creating imbalance. The last letter to which reference was made by the learned counsel is again a letter by respondent No,4 in which he has taken exception to certain contracts awarded by the. Provincial Government and has asked the Government of Punjab to submit projects referred to in the letter to the Planning Division. It is not ascertainable from the record as to what action was taken pursuant to above letters. So far as the letters written by Ch. Altaf Hussain are concerned, those are of May/June, 1994 and relate to taw and order situation in the Province and cannot furnish a basis for issuance of proclamation under Article 234 of Constitution in September, 1995. Same is true as regards isolated and scattered incidents pointed out by the then Acting Governor and respondent No,4 which cannot lead to the conclusion that the Province was not being governed in accordance with Constitution.
75. We may next deal with the argument raised by the learned counsel for the respondents especially Mr. Fakhar-ud-Din, G. Ebrahim that if the petitioner had been permitted to perform the functions of Chief Minister he would have become, what Mr. Fakhar-ud-Din G. Ebrahim termed as "bull in china shop" by advising dissolution of the Assembly and caused irreparable harm.
76. We are not impressed with this argument for various reasons; firstly that if the Constitution has not placed any bar on the powers of a Chief Minister to advise the dissolution of the Assembly after he has been asked by the Governor to obtain a vote of confidence, the issuance of proclamation with a view to achieve same object indirectly will clearly be against the Constitutional intent; secondly if the idea was to denude the Chief Minister of this power, the persons who had resigned from the Cabinet, could if they so minded, have given notice of no-confidence which would take away the power of Chief Minister Article 128 of the Constitution and lastly, more importantly in none of the written statements filed by the respondents there is any averment that the petitioner intended to dissolve the Assembly and the Proclamation under Article 234 was issued in order to deprive him of that power. This plea being raised in this behalf is based upon conjectures and surmises and does not deserve any serious consideration. We may, however, point out that this Court in Ch. .Pervaiz Elahi v. Province of Punjab and another (PLD 1993 Lah. 595) has already held that if the Chief Minister advises the dissolution of Assembly only due to the fact that he had lost confidence of the majority of Members, the Governor is not bound to act upon that advice.
77. From the above discussion, the conclusion which is inevitable is that the Proclamation under Article 234 of the Constitution is clearly outside its scope for the reasons; firstly that no Constitutional deadlock or breakdown of Constitutional machinery has been shown to exist; secondly, that the resignations of the Ministers and Advisers from the Cabinet cannot be considered to constitute a situation in which the Government of Province cannot run in accordance with the Constitution; thirdly, that the question as to whether the Chief Minister enjoys confidence of the majority is also wholly alien to and has no nexus with Article 234 of the Constitution; that in any event such a question can only be decided in the Assembly by its Members and not otherwise.
78. There is also some merit in the contention of Mr. S.M. Zafar, that the Proclamation was issued for the sole purpose of ousting the petitioner from his office and to facilitate his removal. This impression gains strength from the fact that the proclamation was rescinded on 13-9-1995 immediately after the removal of the petitioner by the Governor on 12-9-1995. The other reason for coming to this conclusion is the undue haste with which the Proclamation was issued. It is not disputed that the Ministers resigned at about 6-00 p.m. On 5-9-1995, on the same day the report is said to have been sent by the Governor to the Prime, Minister who in turn advised the President on the same day and ultimately the Proclamation was also issued that day.
79. Before parting with this aspect of the case, we may also take notice of the argument of Raja Muhammad Anwar, Advocate who while relying on Article 236(2) of the Constitution has contended that the Proclamation cannot be struck down by this Court on any ground whatsoever.
We need not dilate upon this aspect of the case in view of the pronouncement of the Supreme Court in Pir Sabir Shah's case supra. Wherein similar objection raised was repelled in the following words:--- "In the present case, the proclamation has been issued under Article 234, it has not been protected by any Article like Articles 281 and 270-A, which were the subject-matter of the above judgments in the cases of Zia-ur-Rehman, Saeed Ahmad Khan and Malik Ghulam Mustafa Khar (supra) but the protection is sought under clause (2) of Article 236 of the Constitution, which is of general nature purporting to protect all proclamations issued under Part X of the Constitution. I am, therefore, of the view that clause (2) of Article 236 will not cover a Proclamation which is without jurisdiction, coram non judice or mala fide and the superior Courts will have jurisdiction to examine a proclamation from the above three jurisdictional legal aspects."
Again at page 819 it was observed by Saiduzzaman Siddiqui, J: "I am, therefore, of the view that in spite of the bar contained in Article 236(2) (supra) the superior Courts in exercise of their power of judicial review can examine the validity of the Proclamation issued under Article 234 of the Constitution and if it is found that the Proclamation is either issued mala fidely or it is in excess of jurisdiction or without jurisdiction or is coram non judice the Courts can declare it as invalid and unconstitutional."
80. Equally unfounded is the contention raised by Mr. Aitzaz Ahsan that as the Proclamation was issued by the President on the advice of the Prime Minister, this Court cannot look into the material forming basis of the advice in view of Article 48(2) of the Constitution. Article 48(2) ibid only prohibits this Court from going into the question as to what advice was tendered by the Prime Minister to the President and not from examining the Constitutional legality of the rroclamation issued by the President in that behalf. We may also state that in the case of S.R. Bommai and others v. Union of India and others (AIR 1994 SC 1918), the Supreme Court of India has taken the view that similar provision in the Indian Constitution does not take away the jurisdiction of the Courts to examine the material on the basis of which the President had passed the order.
81. To be fair to the learned Attorney-General, it may be observed that he did not dispute the proposition that in case the Proclamation is found to be without jurisdiction, mala fide or coram non judice, the same can be interfered with by the superior Courts in the exercise of Constitutional jurisdiction.
82. In the present case, as already found, the Proclamation issued under Article 234 of the Constitution was totally without jurisdiction having been issued for the purposes not contemplated by Article 234 of the Constitution and having no nexus with it and for extraneous considerations. It also suffers from malice in law as would be explained later on while dealing with the question of mala fide.
83. Coming now to the order passed by the Governor on 11-9-1995 requiring the petitioner to take vote of confidence on 12-9-1995 at 2-00 p.m., Mr. S. M. Zafar has challenged the validity of the order on two grounds; firstly, that as by the Proclamation under Article 234 of the Constitution, the President had directed the Chief Minister to cease to function, the Governor could not have asked him to obtain a vote of confidence which was one of the functions of his office and secondly, that Article 130(5) does not contemplate a Chief Minister who stood denuded of his power and functions.
84. The learned Attorney-General as also all the learned counsel appearing on behalf of the respondents have, however, pointed out that on the issuance of Proclamation under Article 234 the only disability put on the Chief Minister was that he could not function though he continued to hold the office of the Chief Minister. A distinction was drawn by the learned Attorney-General between the holding of office' and 'performing functions'. In this regard he relied upon Malik Ghulam Mani v.
Mr. Justice Muhammad Gul, Judge Supreme Court of Pakistan (1978 SCMR 110).
85. According to Mr. Fakhar-ud-Din G. Ebrahim, obtaining a vote of confidence was an obligation/duty of the Chief Minister and not a function while Mr. Aitzaz Ahsan submitted that it was a qualificatory attribute and as notwithstanding the Proclamation under Article 234, the Chief Minister continued to hold office, he could be asked to obtain a vote of confidence.
86. It will be remembered that in the Proclamation issued under Article 234 of the Constitution, the President had directed that the Chief Minister and the Ministers of the Province shall forthwith cease to perform function of their respective offices. The question which, therefore, arises is as to whether obtaining a vote of confidence is one of the functions of the Chief Minister.
87. Having given our consideration to this aspect of the case and the arguments addressed by the learned counsel for the parties we are of the view that the interpretation being placed by the respondents on the proclamation and Article 130(5) of the Constitution not only militates against the language of the proclamation but also the underlying spirit of the Constitution. It is axiomatic that the Chief Minister needs confidence of the majority of the members to function and exercise the powers of his office and not for any ornamental purpose. If the Chief Minister despite being in office cannot perform any function, it would be anomalous to require him to obtain a vote of confidence, for that would be an exercise in futility as even if he obtains 'a vote of confidence he cannot work as Chief Minister in view of the direction issued by the President in the proclamation under Article 234 of the Constitution. Although there may be difference between holding an office and performing functions but to us the Constitutional intent clearly is that it is a Chief Minister who is fully functional who can be asked to obtain a vote of confidence under Article 130(5) of the Constitution.
88. There Is also merit in the contention of the learned counsel for the petitioner that obtaining a vote of confidence under Article 130(5) of t Constitution is one of the functions of the Chief Minister.
In ordinary language as well as legal parlance "function denotes owner, duties and requirement of an office".
' In Corpus Juris Secundum, Vol.37 at page 1397, "function" has been defined as under:--- "It is not always clear what is meant by the use of this elastic and indefinite word. It is derived from a word which signifies to perform, and, when relating to an office, has reference to the powers and duties vested in the office by the authority creating it.
' The noun has been defined as meaning business, employment, or that which one is bound, or which it is one's duty, to do, duty, exercise of a faculty or office, the fulfilment or discharge of a set duty or requirement; office; "
' In Words and Phrases, Permanent Edition, Vol. 17-A at page 534, "function" is, inter alia, defined as under:--- "The most usual significance of the word ' function' is the fulfilment or discharge of a set duty or requirement; exercise of a faculty; that power of acting in a specific way which appertains to a thing by virtue of its special Constitution, Under the Constitution-providing that no person charged with official duties under one of the three separate departments of Government shall exercise any of the "functions" of another, the words "functions" and "power" are interchangeable, but if there is any distinction, the term "function" would denote a larger field of activities that the word "power".
"Functions" as used in Constitution Article 3, dividing the powers of the Government into the legislative, executive, and judicial, and providing that no person charged with official duties under one shall exercise any of the functions of another, except as in the Constitution expressly provided; means "duties".
' According in Ballentine's Law Dictionary, following definition of word "function" appears at page 507: "Whatever a person is employed or appointed to do; the duty of an office or officer. The operation of a mechanism."
' In Black's Law Dictionary, 6th Edition at page 673 "function" has been defined as under:--- "to perform, execute, administer, the nature and proper action of anything; activity appropriate to any business or profession. Office, duty; fulfilment of a definite and or set of ends by the correct adjustment of means. The occupation of an office. By the performance of its duties, the Officer is said to fill his function."
89. The view which we have taken also finds support from the judgment of the House of Lords in the case of McCarthy and Stone (Developments) Ltd. v. London Borough of Richmond Upon Thames (1991) 3 W.L.R. 941) which also appear at page 1393 of 1994 SCMR. In that case, the House of Lords was called upon to construe the meaning of word "function" appearing in section 29 of the Town and County Planning Act, 1971. While relying upon the earlier cases, it was observed that the "function" covers the powers and duties of local Authority under the various provisions of the Act.
Consequently even if obtaining a vote of confidence is as considered to be a duty or attribute of the office it would clearly be a function of the Chief Minister.
90. It follows that even if the petitioner was holding the office of the Chief Minister yet as he could not function in view of the Proclamation issued by the President under Article 234 of the Constitution directing him to cease to function, he could not have been asked to obtain a vote of confidence.
91. The case cited by the learned Attorney-General namely Malik Ghulam Jillani v. Mr. Justice Muhammad Gul, Judge, Supreme Court of Pakistan (1978 SCMR 110) has no relevance as that case turned upon the interpretation of Article 178 of the Interim Constitution and the amendment made by Act XV of 1965.
92. We may now revert to the contention of Mr. S.M. Zafar, Advocate that the petitioner was not given reasonable time by the Governor for obtaining a vote of confidence. It will be remembered that the petitioner received the order of the Governor at 10-30 p.m. On 11-9-1995 asking him to take a vote of confidence in the session of the Provincial Assembly to be held at 2-00 p.m. On 12-9-1995.
93. Granted .That the Constitution itself does not prescribe any limit regarding time but it is well- accepted principles that where time is not fixed for performance of any obligation or the duty; it must be performed within reasonable time.
94. In Pir Sabir Shah v. Federation of Pakistan and others PLD 1994 SC 738, it was observed by the Supreme Court at page 795 that: "I am, therefore, of the view that clause (5) of Article 130 is not controlled by clause (3) of Article 54 of the Constitution and the Acting Governor was competent under the above provision to require the petitioner to obtain a vote of confidence by fixing a reasonable date."
95. Mr. S.M. Masood, learned counsel appearing on behalf of respondent No,3 has drawn our attention to rule 16 of Rules of Procedure of Provincial Assembly of Punjab to contend that even short notice may be given for moving the resolution of confidence. Learned Advocate-General, Punjab, has, however, stated that this rule has no application where the Chief Minister has been asked to obtain a vote of confidence by the Governor. To us it appears that this rule comes into pISy when the resolution of confidence is to be moved in the Assembly but it does not relieve the Governor of his obligation to give sufficient time to the Chief Minister for obtaining a vote of confidence. To say the least, it will be highly unreasonable to ask the Chief Minister of a large Province like Punjab which has 248 Members of the Assembly to obtain a vote of confidence within 16 hours. He should be granted sufficient time in this behalf.
96. Some of the learned counsel appearing on behalf of the respondents, have, however, stated that if the time granted was not sufficient it is only the Members who have been prejudiced by short period who can raise this grievance. We regret our inability to agree. Article 130(5) of the Constitution requires the Chief Minister to obtain vote of confidence. He is, therefore, to be granted reasonable time and opportunity to obtain vote of confidence. Be that as it may, the discretion vesting in the Governor under Article 130(5) of the J Constitution of Islamic Republic of Pakistan, 1973, as regard fixation of time must be exercised reasonably, justly and fairly like any other discretion. Clearly, the order which was served on the petitioner at 10-30 p.m. In the night requiring him to take a vote of confidence on the next day i,e, 12-9-1995 at 2-00 p.m. Was unreasonable, unjust, unfair and amounted to denial of proper opportunity to the petitioner.
97. It was next contended by Mr. S.M. Zafar, Advocate that the impugned Proclamation, the report of the Governor and the orders passed by him suffered from malice in law. Learned counsel explained that though in the petition he had also taken the plea that the report of the Governor was mala fide on facts as the Governor was carrying a bias against the petitioner and had devised a strategy to remove him from office while serving in the Federal Government but in view of the denial of the Governor in the written statement, he would not seek decision on mala fides on fact as it had become a disputed question of fact requiring evidence.
98. Strong exception was taken by the learned counsel for the respondents to this course being adopted by the petitioner's learned counsel. Mr. Fakhar-udDin G. Ebrahim Advocate for the Governor also filed an application praying that the petitioner be directed to prove the plea of mala fide on facts which he had set up in the petition. However, we have not been able to discover any principle under which a party can be prevented from giving up a plea raised by it. We cannot, therefore, direct the petitioner to prove this fact. As to whether the petitioner was justified in raising this plea initially and if not what is its effect will be considered while dealing with civil miscellaneous applications filed by the respondent. Some of the learned counsel for the respondents were also of the view that unless an action is shown to be mala fide in fact it cannot be dubbed as suffering from malice in law. We are unable to agree as the distinction between malice in law and malice on facts is well-known. An action is said to be suffering from mala fide on facts if it is taken due to some personal grudge, animosity, or for some personal benefit. Thus the state of mind of the person taking action is of great importance. On the other hand, an action is said to be suffering from malice in law if the authority taking the action is not competent to do so or has acted beyond its powers or in violation of the law applicable even though it may have acted bona fide and without This distinction has brought about in Shearer and another v. Shields 1994 A.C. 808 in the following words:-- "Between malice in fact, and 'malice in law' there is a broad distinction which is not peculiar to any particular system of jurisprudence. A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law. He may, therefore, be guilty of malice in law, although, so far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently."
' The difference between the two species of malice has been noted with great clarity, if we may say so with respect by Muhammad Afzal Lone, J. (as he then was) in Ghulam Mustafa Khar v.
Federation of Pakistan PLD 1988 Lahore 49 in the following words:-- "Malice in law is different from the malice as known in the common parlance which is usually associated with evil motive influencing the mind of the person committing the malicious act. An order in violation of law is mala fide in law, though actual malice may not be present in the mind of the Authority passing the order."
' Reference may also be made to the case of Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26: "While strong and cogent evidence is necessary to prove mala fides on facts, for malice in law it is sufficient if it is shown that the impugned action is not countenanced by the law under which the authority had acted."
99. Applying these principles to the present case it is clear that the report made by the Governor, the proclamation issued under Article 234 of the Constitution as also the order of the Governor directing the petitioner to obtain vote of confidence suffer from malice in law inasmuch as Article 234 of the Constitution could not have been invoked on the ground that the Members of Cabinet had resigned or that the Chief Minister had lost confidence of the majority at least without putting him to floor test and also because Governor could not during the currency of the proclamation ask the Chief Minister who has ceased to function to obtain vote of condence.
100. Having dealt with the contentions raised by the learned counsel for the petitioner in support of this petition we will now examine various objections raised by the respondents as to the maintainability of this petition.
101. Much capital was sought to be made by the respondents' learned counsel out of the fact that Sardar Muhammad Arif Nakai was elected as Chief Minister of Punjab and has been functioning as such for the last more than one year. It was argued that his election cannot be set aside in the present proceedings. We are not impressed by this contention. Admittedly, under the Constitution, a new Chief Minister can only be elected if the office of Chief Minister had fallen vacant either due to death or resignation or a resolution of no-confidence having been passed against him or on his failure to obtain vote of confidence. As already held, proclamation as also orders passed in this behalf were unconstitutional and, therefore null and void with the result that in law the petitioner continues to be Chief Minister. Consequently, the election of respondent No,3 as Chief Minister has no significance and must fail along with the proclamation of the President, and order of the Governor removing the petitioner from his office. Respondent No,3 cannot claim to be Chief Minister unless the petitioner has been lawfully removed.
102. Learned Attorney-General as also the learned counsel for the respondents have placed great reliance upon the fact that Sardar Muhammad Arif Nakai had secured 150 votes at the time of his election and during the period of one year he has held the office, the Assembly was called upon to vote as many as 100 times and on each of these occasions the proposal of the Government headed by Sardar Muhammad Arif Nakai secured majority. It was emphaszied that even if floor test was necessary under the Constitution, the requirement stood met with.
103. Again we are not impressed with these contentions. The Constitution in Article 130(5) specifically prescribes that Chief Minister shall be asked to take vote of confidence in a Session especially summon for that purpose. In view of this command of the Constitution there is no room for drawing an inference from certain other proceedings of the Assembly the petitioner had failed to obtain vote of confidence. The question of failure would only arise if he had been put to floor test in the manner provided in the Constitution and not otherwise. In Mian Muhammad Nawaz Sharif's case supra the Supreme Court at pages 616/61.7 made the following observations which are completely destructive of the arguments of the learned counsel for the respondents: "The only way opened to the President under the Constitution for coming to the conclusion whether the Prime Minister does or does not command confidence of the majority of the National Assembly is by summoning the National Assembly and requiring the Prime Minister to obtain a vote of confidence from the Assembly. Any other method adopted for achieving the object for forming an opinion, for giving effect to it is impermissible."
104. Equally unfounded is the argument that removal of respondent No,3 from the office of Chief Minister would amount to interfering in the internal proceedings of the Assembly. If, as already held, the removal of the petitioner was unconstitutional, the office of the Chief Minister did not fall vacant and question of anyone else being elected thereto did not arise. We are fully aware of the doctrine of trichotomy of powers relied upon by the respondents' learned counsel but it cannot be denied that if an organ of State acts against the Constitution it is the bounden duty of the Judiciary to nullify that act. We agree with Mr. S.M. Zafar that our interference in the matter would be in the aid of Assembly itself inasmuch as the result of our decision would be to establish the supremacy of the Assembly so far as the election or removal of Chief Minister is concerned as against the Executive Branch of the Government. Be that as it may, the law appears to be well-settled that no sanctity attaches to the proceedings which are unconstitutional, (See Muhammad Anwar Durrani v. Province of Balochistan PLD 1989 Quetta 25).
105. Raja Muhammad Anwar, Advocate also argued that the appointment of respondent No,3 cannot be brought under challenge ,in the present petition by way of collateral attack. In this respect he relied upon decisions of the Supreme Court in Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 and Lt.-Col. Farzand Ali and others v. Province of West Pakistan PLD 1970 SC 98.
There is no cavil with the law laid down in the above-cited cases which have absolutely no applicability in the present case where election of respondent No,3 has been challenged directly by the petitioner and not by way of collateral attack.
106. The next objection raised by the respondents' learned counsel on which great emphasis was laid by them was that the petition suffers from laches, acquiescence and that the petitioner is not entitled to any relief as he is guilty of suppression of facts, abuse of process of Court and has filed false and fabricated documents in this Court. It was emphasised that the power under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is discretionary and cannot be exercised in favour of the person who has not come to the Courts with clean hands.
107. Although it is true that grant of relief under Article 199 of the Constitution is in the discretion of the Court and may be withheld if all or any of the factors pointed out by the learned counsel for the respondents are present but we are of firm view that these considerations have no relevance in a case where it is that the impugned actions are unconstitutional or are violative of the fundamental/Constitutional rights. Having taken oath to preserve and defend the Constitution it becomes bounden duty of the superior Courts to enforce the Constitution with its full might and majesty and in doing so they should not hesitate to strike down the impugned actions/orders and to grant the consequential relief flowing therefrom. No expediency or other consideration should be allowed to stand in its way nor can a deviation or contravention of the Constitution be condoned or allowed to be perpetuated. If democracy is to flourish, the rule of law must firmly be established by enforcing the Constitution in letter and spirit.
108.Main reliance of the learned Attorney-General and the learned counsel for the respondents was on the case of Federation of Pakistan v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166 which was an appeal from the judgment of this Court in Khawaja Muhammad Sharif v. Federation of Pakistan and others PLD 1988 Lahore 725. It is true that after having come to the conclusion that the dissolution of Assembly and dismissal of the Government headed by late Mr. Muhammad Khan Jonejo was unconstitutional, this Court as also the Supreme Court of Pakistan declined to grant any relief in view of certain factors which are wholly absent in the present case. The main judgment in the Supreme Court was written by Nasim Hasan Shah, J. (as he then was). He himself did not follow that judgment in the later case of Mian Muhammad Nawaz Sharif supra. Same learned Judge (Nasim Hassan Shah, J.) while referring to the case of Haji Muhammad Saifullah Khan made the following observations in. Mian Muhammad Nawaz Sharif's case PLD 1993 SC 473 at page 585: "Undoubtedly, two opinions can legitimately be entertained as to the correctness of the course which was followed here. On hindsight, I now think that after having found the action of dissolution of the National Assembly was not sustainable in law, the Court should not have denied the consequential relief and ought to have resorted the National Assembly."
After the decision in Mian Muhammad Nawaz Sharif's case supra the rule stands U firmly laid down that no Constitutional violation, deviation or contravention should be allowed to remain.
109. On this subject, we may also refer to the case of Fazlul Qadir Choudhry v. Muhammad Abdul Hague PLD 1963 SC 486. In that case the Supreme Court was called upon to consider the effect of appointment of some Members of the National Assembly as Ministers purportedly against the provisions of the Constitution.
' One of the defences put up by the respondents was that the petition suffeled from laches and estoppel. While repelling this plea it was observed by Hamood-ur-Rehman, J. That: "In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there, can be no estoppel against the Constitution and an act which is unconstitutional cannot become Constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act."
110. Similar objection was also raised before a Full Bench comprising five Judges of this Court in the case of Ch. Pervaiz Elahi v. Province of Punjab and others PLD 1993 Lahore 595 but was repelled by observing that it was well-established that in a case where dispute pertain to enforcement of fundamental and Constitutional rights the conduct of the petitioner loses all significance.
' Again at page 651 of the report it was observed that if the nature of the lis before the Court pertains to existence of Constitutional institutions the relief v should not be withheld on the basis of the conduct of the petitioner.
111. In the case of Muhammad Anwar Durrani v. Province of Balochistan and others PLD 1989 Quetta 25 a Full Bench of the Quetta High Court laid down at page 44 that it is a matter of Constitutional principle that when rights have been transgressed the remedy must be provided and when a legal injury is caused by violation of Constitutional rights then the relief which meets the ends of justice cannot be refused.
112. In none of the cases, except Haji Muhammad Saifullah's case supra, relied upon by the learned counsel for the respondent any violation of the Constitution was involved. These cases have, therefore, no relevance and need not be discussed. However, the learned Attorney-General has placed great emphasis on Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan and others (1994 SCMR 2142) in which the Supreme Court of Pakistan laid down that this Court does not sit in appeal over the decision of the Executive Authorities while exercising Constitutional jurisdiction and that judicial restraint is essential to continuance of rule of law. These principles are salutary and well- known but are of no application to the present case where it has been demonstrated that the impugned orders are unconstitutional. It may also be mentioned that in Syed Abul A' ala Maududi v. The State Bank of Pakistan and others PLD 1969 Lahore 908 on which reliance was placed by Raja Muhammad Anwar Advocate, though the High Court noted that the conduct of the petitioner was not aboveboard as he had procured unauthorised copies of public record yet relief was granted to the petitioner inter alia on the ground that the impugned order was found to be without any lawful authority.
113. Be that as it may, we have also examined the merits of the objections raised by the respondents in support of their plea that the petitioner is not entitled to any relief. The first objection was that the petition suffers from laches. This contention is without any force. The impugned proclamation was issued on 5-9-1995, while the Constitutional petition was filed on 1-10-1995. It is also to be noticed that the petitioner had sent a representation to the President and the Governor calling upon them to withdraw the Proclamation as also order asking him to obtain vote of confidence which remained unanswered. Furthermore, Mr. M.D. Tahir, Advocate had on 14-9-1995 filed a Constitutional petition on the same subject in which the petitioner was impleaded as a party. That petition was dismissed on 24-9-1995. Being a party the petitioner could legitimately wait for its decision. In these circumstances, it cannot be said that the filing of this petition was intentionally delayed or it suffers from laches.
114. It was next argued by the respondents that the petitioner is estopped by his conduct to file the present petition inasmuch as he had supported Sardar Muhammad Arif Nakai and had also congratulated him. It has been explained by Mr. S.M. Zafar that the statements attributed to the petitioner were made in order to show to the Members of Pakistan People's Party that they had gained nothing by removing the petitioner as the Chief Minister ship had remained with PML(J).
These political statements cannot be considered as debarring the petitioner from filing this petition especially in a case where the Constitutional violations have been established. There can be no estoppel against the Constitution.
115. Mr. Fakhr-ud-Din G. Ehrahim, Raja Muhammad Anwar and Mr. Aitzaz Ahsan, Advocates have vehemently argued that the petitioner cannot be granted relief as he had alongwith C.M. No,5/96 filed a document (Document No,1) in order to show that Lt.-Gen. (Reid.) Raja Saroop Khan while working in the Prime Minister Secretariat before his appointment as Governor had devised a strategy to remove the petitioner from office. According to the learned counsel this document was forged, fabricated and spurious and was filed to malign a high Constitutional functionary like Governor. In furtherance to these submissions the respondents filed the following applications:--
(i) C.M. No,2304 of 1996 by respondent No,4 under section 476 of Code of Criminal Procedure for prosecution of the petitioner.
(ii) C.M. No,2305 of 1996. Application under section 476 of Code of Criminal Procedure for prosecution of the petitioner.
(iii) C.M. No, 2306 of 1996. Application under order 19, rule 2 and section 151, C.P.C. By respondent No,1 for permission to cross-examine the writ petitioner.
(iv) An application (without number) by. Province of Punjab under Order 19, rule 2 and section 151, C.P.C. For cross-examination of the petitioner..
(v) C.M. No,2936/96, application under Order 19, rule 2 and section 151, C.P.C. By respondent No,1 for permission to cross-examine the petitioner.
' The petitioner has filed replies to these applications. We have heard arguments of the learned counsel for the parties on these applications which are being disposed of here in below:--
116. The main emphasis of the learned counsel for the respondents in support of these applications was that along with C.M. No,5/96 the petitioner had filed copy of a strategy paper said to have been prepared by respondent No,4 while working in the Prime Minister Secretariat and that the said document was forged, fabricated and spurious. Learned counsel for the respondents while relying upon judgments of various Courts have argued that they are entitled to cross-examine the petitioner in order to elicit the information on which the assertions in the Constitutional petition in that respect were based. It was argued that it is the fundamental right of the opposite-party to cross-examine a person who has sworn an affidavit in order to test its veracity. They also prayed that the petitioner be prosecuted for having filed such a document.
117. In reply, Mr. S.M. Zafar has explained that the document in question was a publication and has not been prepared by the petitioner. It was further stated that the said publication appeared in a booklet "Legal Opinion" by Dr. A. Basit and its contents were also prominently displayed and published in daily "fang" and were also referred to by the Leader of the Opposition in the Punjab Provincial Assembly during one of his speeches. According to the learned counsel in these circumstances, the petitioner was entitled to file a copy of the published document before this Court and also to plead mala fide of respondent No,4 on that basis. Mr. S.M. Zafar, pointed out that when the Governor of Punjab disowned the document and denied its contents, he had stated before the Court that this aspect may not be decided as he does not claim any relief on those facts.
118. We are fully aware of the principles relied upon by the learned counsel for the respondents that if a person relies upon an affidavit the contents of which are disputed by the opposite side by filing a counter-affidavit the Court may in order to elicit truth on a relevant issue permit the cross- examination of the deponent. The matter is, however, in the discretion of the Court which has to be exercised on the facts of each case. As already observed Mr. S.M. Zafar learned counsel for the petitioner has not pressed the petition with respect to the allegations of mala fides on fact attributed to respondent No,4 on the basis of the so-called strategy paper. Consequently, that part of the case is no more before us and as such we are not called upon to render any decision on it.
That being so, the cross-examination of the petitioner is not necessary especially when this Court does not ordinarily in the exercise of its Constitutional jurisdiction resolve disputes on facts.
' As regards the grievance of the learned counsel that respondent No,4 has been maligned by the petitioner, it is open to the respondent to take such action as may be permissible under the law if he so desires.
119. However, since the learned counsel for the respondents have pressed for dismissal of the petitioner on account of abuse of the process of the Court by the petitioner by filing fabricated document as also by making false assertions in the petitioner regarding so-called strategy devised by respondent No,4, we have examined this aspect of the case for that limited purpose only whether there was some justification for the petitioner to have raised this plea in the petition and to file a copy of the said document along with C.M. No,5/96. The first thing to be noticed in this behalf is that the petitioner has not made a categorical statement on his own knowledge in the petition about the strategy paper or its contents, he had stated that he had reasons to believe that such a strategy was devised by respondent No,4. It is pertinent to point out that in parawise comments filed by respondent No,1 the contents of the petition where such averments had been made by the petitioner were not specifically denied. Furthermore, as has been explained by Mr. S.M.
Zafar the said document was published by Dr. A. Basit in the form of a booklet and its contents also appeared in daily Jang prominently but neither the contents of daily Jang nor of the booklet were denied by respondent No,4 himself. Raja Muhammad Anwar stated that as the matter was pending before this Court in the present proceedings, he advised the Governor not to issue any contradiction. Even if that be so, it cannot be said that while referring to the said document in the Constitutional petition or the so-called strategy the petitioner acted mala fide as the petitioner was entitled to assume that facts stated therein are correct in absence of any contradiction as held in Islamic Republic of Pakistan v. Abdul Wali Khan, MNA PLD 1976 SC 57. The fact that this document was also refereed to by Mian Shahbaz Sharif, Leader of the Opposition Punjab Provincial Assembly is borne out by the record. The respondents' learned counsel has stated that the contents of the document were disputed by the Law Minister. That may be so, but as respondent No,4 had not issued any contradiction, it cannot be said that the petitioner had acted mala fide or in bad faith while averring that he had reasons to believe that a strategy to remove him was devised by respondent No,4 or by filing a copy of the said document. These C.Ms. Are accordingly dismissed.
120. We may, however, clarify that the observations made. By us in this behalf shall not be considered to be determinative of the controversy nor shall affect the rights of the parties to take such legal action as they may deem fit.
121. In view of the apprehension being expressed by the learned Attorney-General for Pakistan as also the learned counsel for the respondents that if the petitioner is restored he will prove to be a bull in a china shop and destroy the Assembly, we asked Mr. S.M. Zafar, if the petitioner is restored as Chief Minister, does he intend to advise the Governor to dissolve the Assembly before obtaining vote of confidence. In reply learned counsel has produced a written undertaking from the petitioner in which it has been stated that he shall not exercise that prerogative, if he restored to office till such time he has obtained a vote of confidences if called upon to do so. It may be stated that in the written undertaking the petitioner has asked for 60 days for obtaining vote of confidence. Mr. S.M. Zafar stated that the undertaking not to advise dissolution was unconditional and shall be adhered to irrespective of the period which 'this Court gives to the petitioner for obtaining vote of confidence. He stated that so far as vote of no-confidence under Article 136 was concerned, law will take its own course. The undertaking of the petitioner not to dissolve the Assembly is one of the consideration which has weighed with us for granting relief to him. Consequently, if this undertaking is violated, the order of his restoration to office shall be deemed to have been recalled.
122. This brings us to the last application namely C.M. No,2884/96 moved by the petitioner in which he has stated that in case he is restored, he pledges not to use any underhand method or indulge in horse-trading and has prayed that similar direction be given to the respondents.
123. It is matter of extreme regret that horse-trading has been a bane of our politics. This evil has led to failure of various Governments since the creation of the country. In the recent past this trend has been on the increase which is a matter of great concern for all of us. The remedy, however, lies with the Members of the Assemblies themselves and those elected by them. Such practices undermine the democratic norms and Constitutional functioning and must be deplored. We may in this behalf refer to the provisions of Articles 62 and 63 of the Constitution to which. Raja Mahmood Akhtar, learned counsel for the members of Assembly had made reference. He beseeched us to take some effective steps to prevent such corrupt practices.
124. The learned Attorney-General has assured us that the Federal Government has no intention of indulging in any such practices. We expected the same assurance from the Provincial Government but the learned Additional Advocate-General professed his inability to make any statement in the absence of any instructions. Be that as it may, there cannot be any two opinions that the' practice like horse-trading, exertion of undue pressure on the Members and B interference in the right to vote freely are not only abhorring but are unconstitutional. In order to ensure that no such practice takes place in the floor test to which the petitioner may be put, we intend to issue certain directions to the Governor of Punjab, as the learned Advocate-General has himself stated before us that it is the obligation of the Governor, who issued order under Article 130(5) of the Constitution, to ensure the presence of the Members at the meeting called by him. As already observed, Raja Mehmood Akhtar, learned counsel appearing for the Members of the Provincial Assembly also sought our intervention to protect the Members from horse-trading, etc. We shall, therefore, direct that the Governor of Punjab should ensure the presence of all Members of the Provincial Assembly at the meeting to be called by him so that the floor test is held fairly and justly. The parties as also the functionaries of the C Federal Government and the Government of Punjab shall not cause any harassm ent to the Members nor place any impediment in their way in exercising their right of vote in a free and fair manner.
125. As regards the request of Mr. S.M. Zafar that if restored to office, the petitioner may be allowed sixty days' time to obtain vote of confidence as similar period is allowed to a newly elected Chief Minister under Article 130(3) of the Constitution, we are of the view that the situation in the present case is different as the petitioner seeks restoration of office and not fresh election. At best the petitioner is entitled to grant of reasonable time. In the circumstances of the case and keeping in view the fact that the petitioner remained out of office for the last more than one year, we think that a period of ten days would meet the ends of justice.
126. For the foregoing reasons and in view of the above discussion, this petition is allowed in the following terms:--
(i) That the impugned Proclamation dated 5-9-1995, the order of the Governor under Article 130(5) of the Constitution, passed on 11-9-1995, the removal of the petitioner and the order passed in that behalf as also the election of respondent No,3 as Chief Minister are declared to be without any lawful authority and of no legal effect.
(ii) That as a consequence of the above, the petitioner stands restored to the office of the Chief Minister, Punjab as on 5-9-1995.
(iii) That the Governor, if may so advised, call upon the petitioner to obtain vote of confidence under Article 130(5) of the Constitution by giving him not less then ten clear days to obtain vote of confidence.
(iv) That in the said Session the Governor of Punjab in terms of the direction given in para. 96 above, ensure the presence of the Members at the Assembly and also that no impediment is caused in the way of exercise of free right of vote by the Members at such a meeting.
(v) That as undertaken by the petitioner and Mr. S.M. Zafar on his behalf, the petitioner shall not advise the Governor to dissolve the Assembly before obtaining vote of confidence from the Assembly. If this undertaking is violated, this petition shall stand dismissed to the extent of his restoration to the office of Chief Minister of Punjab.
(vi) That if the petitioner fails to obtain vote of confidence, Sardar Muhammad Arif Nakai, respondent No,3 shall stand restored to his office as Chief Minister without any fresh election or other formalities.
(vii) No order as to costs. KHALIL-UR-RAHMAN KHAN, C J.--I Agree.
MUNIR A. SHEIKH, J.--I agree.