By majority of 6 to 1, for reasons to be recorded later, we pass this short order as under.
2. On 5-11-1996 the President of Pakistan passed the dissolution order under Article 58(2)(b) of the Constitution whereby he dissolved the National Assembly of Pakistan ordering further that the Prime Minister and her Cabinet shall cease to hold office forthwith. He also appointed 3rd February, 1997 as the date for holding general elections to the National Assembly as contemplated under Article 48(5) of the Constitution. On 11-11-1996 Syed Yousaf Raza Gillani, Speaker of the National Assembly, filed Constitutional Petition No.58 of 1996 directly in this Court under Article 184(3) impleading Mr. Farooq Ahmed Khan Leghari, President of Pakistan, as respondent No. l and Federation of Pakistan and Malik Miraj Khalid, Caretaker Prime Minister, as respondents Nos.2 and 3 respectively. On 13-11-1996 Mohtrama Benazir Bhutto filed Constitutional Petition No.59, of 1996 directly in this Court impleading the President of Pakistan, Federation of Pakistan and Malik Meraj Khalid as respondents Nos. l, 2 and 3 respectively. The office returned this petition on to occasions for modification of the language and finally it was fixed for hearing alongwith Constitutional Petition No.58 of 1996 on 3-12-1996 as in both these petitions validity of the dissolution order has been called in question.
3. Preliminary objection was raised that Syed Yousaf Raza Gilani as Speaker could not invoke the jurisdiction of this Court directly under Article 184(3) and that he could seek remedy in the High Court. He insisted for hearing .On the question of maintainability and after a detailed hearing order was passed on 11-1-1997 that the question of maintainability would be decided alongwith merits as has been held in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473 to be heard alongwith Constitutional Petition No. 59 of 1996, Constitutional Petition No.60 of 1996 was filed on 23-11-1996 by Mr. Mehmood Khan Achakzai in which respondents are same as in Constitutional Petitions Nos.58 of 1996 and. 59 of 1996. He has challenged the Eighth Amendment in the Constitution to the extent of Article 58(2)(b) only alleging that the dissolution order, dated 5-11- 1996 could not be passed under that provision. Since there was challenge to the part of the Eighth Amendment and there were other matters pending in this Court in which the Eighth Amendment was challenged, all such cases were clubbed together and detailed hearing was given to decide finally the question of challenge to the Eighth Amendment made in the Constitution. These cases relating to the Eighth Amendment were heard by a Bench of seven Judges as is presently constituted and short order was passed on 12-1-1997 holding, that the Eighth Amendment has come to stay in the Constitution unless it is amended in the manner prescribed in the Constitution.
In the result the .Civil Appeals and the Constitutional petitions on the subject were dismissed by a short order. The counsel for Mr. Mehmood Khan Achakzai stated that he does not challenge the validity of the dissolution order passed under Article 58(2)(b) on merits. Hence Constitutional Petition No.60 of 1996 was also dismissed.
4. Now remains Constitutional Petitions Nos. 58 and 59 of 1996 filed by Syed Yousaf Raza Gilani and Mohtarma Benazir Bhutto respectively which were taken up for hearing. At the initial stage in both these petitions notices were issued to the respondents and the Attorney-General for Pakistan as contemplated under Order XXVII-A, Rule 1, C.P.C. On the direction of the Court in Constitutional Petition No.59 of 1996 the respondents have filed written statement on 12-12-1996 supported by material in Volumes 1 to 9 further split in parts which are twenty-four in number. Rejoinder was filed on 7-1-1997 in to parts.
5. On 14-12-1996 Mr. Aitzaz Ahsan expressed apprehension that since election schedule was going to be announced, it was possible that the finding in Saifullah's case PLD 1989 SC 166 to the effect that relief being discretionary in writ jurisdiction may be refused to him on the ground that the whole election machinery was in full gear. He was assured that this will be kept in view while proceeding with the case.
6. Both these petitions were heard for thirteen working days as the election day fixed for 3-2-1997 is fast approaching and during the last days the Court extended the sitting up to 1-30 and even after 2-00 p.m. From thirteen working days, nine days were given to Mr. Aitzaz Ahsan minus half .Day given to Dr. Farooq Hassan who appeared for M.Q.M. As intervener in both the petitions. Four days were given to Mr. Khalid Anwar, learned counsel for the respondents. The learned Attorney-General was busy in other cases and he gave the the allocated to him to Mr. Khalid Anwar who appeared for the respondents.
7. Dr. Farooq Hassan has filed C.M.A. 806 of 1996 under Order XXXIII, Rule 6, Supreme Court Rules, 1980 read with Order I, Rule 10, C.P.C. With prayer that M.Q.M. May be allowed to be joined as party as respondent. He has filed this application in Constitutional Petition No.59. Of 1996 and has also filed C.M.A. No.805 of 1996 in Constitutional Petition No.58 of 1996. Prayer in both the applications is same. According to Dr. Farooq Hassan, M.Q.M. Wants to be joined as necessary party to produce record and documents in support of ground No.1 in the dissolution order with regard to extra judicial killings/custodial killings in Karachi. He has further stated that on the same subject he has already filed Constitutional Petition No.46 of 1994 in this Court directly which is pending. Syed Iqbal Haider is another intervener. He has filed C.M.A. No.848 of 1996 in Constitutional Petition No.59 of 1996 and C.M.A. No.939 of 1996 in Constitutional Petition No.58 of 1996 and wants to be joined as necessary party but has not been able to satisfy us that he is necessary party. Since the same documents as are produced by M.Q.M. In support of the ground in the dissolution order on the subject of extra judicial killings are produced by the, respondents in both these petitions, we do not feel inclined to pass any orders on, the four civil miscellaneous applications filed in both the petitions.
8. Our findings are as under:----- Firstly, we do not accept the contention of Mr. Aitzaz Ahsan that the President can invoke Article 58(2)(b) to dissolve the National Assembly only in such a grave situation in which Martial Law can be imposed as in 1977 and there is complete breakdown of Constitutional machinery. We are of the view that under the said provision, the President in his discretion may dissolve the National Assembly where he forms opinion on the basis of material before him having nexus with the dissolution order and Article 58(2)(b), that situation has arisen in which the Government of the Federation cannot be carried on in accordance with the provisions of the Constitution and appeal to the electorate is necessary. In support of the proposition reference can be made to the case of Khawaja Ahmad Tariq Rahim v. Federation of Pakistan and another PLD 1992 SC 646 in which it is held by majority that once the evil is identified, remedial and corrective measures within the Constitutional framework must follow. Public functionaries, holding public power in trust, under oath to discharge the same impartially and to the best of their ability must react as they cannot remain silent spectators. There may be occasion for the exercise of such power where there takes place extensive, continued and pervasive failure to observe not one but numerous provisions of the Constitution, creating the impression that the country is governed not so much by the Constitution but by methods extra-Constitutional. The theory of total breakdown or Constitutional machinery as the only ground for dissolution of National Assembly has been rejected in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473.
Secondly, it is not correct to say as submitted by Mr. Aitzaz Ahsan, counsel for the petitioner, that her case is on all fours with the case of Muhammad Nawaz Sharif (supra), hence she is also entitled to the same relief of restoration as was given in that case. In the case of Nawaz Sharif it was conceded by the Attorney-General for Pakistan that the dissolution order was mainly based upon the speech made by the deposed Prime Minister on 17-4-1993 on electronic media which was an at of subversion and further that session of National, Assembly was called hurriedly and the President thought that it was done to initiate proceedings of impeachment against him. In such circumstances it was held that the dissolution order was not sustainable.
Thirdly, it is not correct to say that the material produced in support of the grounds of the dissolution in. Its totality must be present before the President at the the of forming opinion and must be scrutinized by him in detail. It would be sufficient if there is material having nexus with the order of dissolution and Article 58(2)(b) before the President after perusal of which he forms his opinion and passes order of dissolution and further there is nothing wrong with production of corroborative or confirmatory material in support of the grounds which has been made available after the date of the order of dissolution.
Fourthly, newspaper cuttings can be relied upon as material in support of the grounds.
Fifthly, in the instant, case the order of dissolution on the first ground of extra judicial killings sufficient material has been produced, which has been properly and justifiably considered.
Sixthly, we do not feel inclined to give any finding on the second ground in the dissolution order on the subject of murder of Mir Murtaza Bhutto, brother of the petitioner, and his seven other companions for the reason that the matter is sub judice before the Tribunal of enquiry set up which is being presided over by a Judge of this Court and also F.I.Rs. Have been filed which are being investigated in accordance with the law.
Seventhly, enough material is produced in support of the third ground with regard to the belated implementation of the judgment in the case of appointment of Judges, which is short of total compliance. By this non-- implementation Articles 190 and 2A of the Constitution are violated.
There is also adequate material produced by the respondents to show that the petitioner in her speech before the National Assembly had ridiculed the judgment of the Supreme Court in the Judges' case which was telecast also repeatedly and in order to harass the Judges of this Court, Constitution (Fifteenth Amendment) Bill was introduced in the Parliament for initiating the process of accountability against the Judges by sending the Judges of the superior Courts on forced leave if fifteen per cent. Of the members moved a motion against them. This bill ran counter to Article 209 of the Constitution which is already in existence for taking action against Judges before the body of Supreme Judicial Council. Complete separation of judiciary from the executive is being delayed and by law Executive Magistrates are given powers to sentence to imprisonment for three years, which is against the spirit of the judgment.
Eighthly, there is sufficient material available on the record in support of the fifth ground showing, that under the orders of the petitioner telephones of the Judges of the Supreme Court, leaders of the political parties and high ranking military and civil officials were being taped and transcripts sent to the petitioner for reading.
Lastly, there is also enough material produced in support of the fifth ground in the dissolution order which covers the subject of corruption, nepotism and violation of rules.
9. For the facts and reasons stated above, we uphold the order of dissolution passed by the President and dismiss the petitions.
ZIA MAHMOOD MIRZA, J.--- I regret my inability to agree with this order dismissing the captioned petitions, as in my humble view for which I shall record reasons later on, the order, dated 5th November, 1996 impugned in these petitions cannot be sustained, with the result that the National Assembly, the . Prime Minister and the Cabinet stand restored.
(Sd.)
Zia Mahmood Mirza, J