1994 PTCL 448




Per Ajmal Mian, J.
(a) Constitution of Pakistan(1973), Article. 78, 88, 89, 199.

Before dealing with above opinions, it may be pertinent to refer some of the relevant provisions of the Constitution.Article 78 provides that all revenues received by the Federal Government, all loans raised by the Government and all moneys received by it in repayment of any loan, shall form part of a consolidated fund, to be known as the Federal Consolidated Fund.It further provides that all other moneys inter alia referred to in sub-clauses (a) and (b) of clause (2) thereof shall be credited to the Public Account of the Federation.It may further be pointed out that Article 79 lays down that the custody of the Federal Consolidated Fund, the payment of moneys into that fund, the withdrawal of moneys therefrom, the custody of other moneys received by or on behalf of the Federal Government, their payment into and withdrawal from, the Public Account of the Federation and all matters connected with or ancillary to the matters aforesaid shall be regulated by the Act of Parliament or until provision in that behalf is so made by rules made by the President.Whereas Article 80 of the Constitution deals with the Annual Budget Statement.Article 81 mentions the items of expenditure which shall be charged upon the Federal Consolidated Fund, namely, the items mentioned in clauses (a), (b), (c), (d) and (e) of the above Article.Whereas Article 82 relates to the procedure relating to Annual Budget Statement.It contemplates that the items which are charged upon the Federal Consolidated Fund can be discussed in the National Assembly but the same shall not be submitted to the vote of the National Assembly. It further provides that other items of annual expenditure in the Annual Budget Statement shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand, or to assent to any demand subject to a reduction of the amount specified therein. It may also be stated that proviso to clause (2) provided a special provision for a period of ten years from the commencing day or the holding of the second general election to the National Assembly. It is not necessary to deal with it any further. Clause (3) of the above Article lays down that no demand for a grant shall be made except on the recommendation of the Federal Government.

It may further be pointed out that Article 83 provides that the Prime Minister shall authenticate by signature a schedule specifying the items of expenditure mentioned in sub-clauses (a) and (b) to clause (1) thereof, whereas clause (2) provides that the schedule so authenticated shall be laid before the National Assembly, but shall not be open to discussion or vote thereon.It may also noticed that clause (3) lays down that subject to the Constitution, no expenditure from the Federal Consolidated Fund shall be deemed to be duly authorised unless it is specified in the schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2).It may further be observed that Article 84 deals with supplementary and excess grants in respect of any financial year.

It may also be stated that Article 85 lays down that notwithstanding anything contained in the foregoing provisions relating to financial matters, the National Assembly shall have the power to make any grant in advance in respect of the estimated expenditure for a part of any financial year not exceeding four months pending completion of the procedure prescribed in Article 82 for the voting of such grant and the authentication of the schedule of the authorised expenditure in accordance with Article 83 in relation to the expenditure.[para. 14, 15 & 16, p. 490]C.

It appears that the General Ziaul Haq died in the air crash in August, 1988. Thereupon, Mr. Ghulam Ishaq Khan, who was then Chariman of the Senate, took over as the President in terms of Article 49 of the Constitution. It further seems that the above order of dissolution of the National Assembly was challenged in the Lahore High Court, which through its judgment in the case of Khawaja Muhammad Sharif Vs. Federation of Pakistan through Secretary Cabinet Division, Government of Pakistan, Islamabad and 18 others (PLD 1988 Lahore 725) held that the dissolution order was without jurisdiction. Against the above judgment of the Lahore High Court, the matter was brought before this Court inter alia by the Federation, but the above appeal was dismissed alongwith the Federation, but the above appeal was dismissed alongwith the connected appeals through the judgment rendered on 5th October, 1988 in the case of Federation of Pakistan and others Vs. Haji Muhammad Saifullah Khan and others and the other connected cases (PLD 1988 S.C. 166). This Court also did not restore the dissolved National Assembly and factually when the then Speaker of the National Asssembly attempted summon it upon the pronouncement of the above judgment by this Court, he was prohibited by this Court through a separate order. It may be pertinent to mention that in terms of clause (5) of Article 48 of the Constitution upon the passing of the above order of dissolving the National Assembly, the President was required in his discretion to appoint a date not later than 90 days from the date of dissolution for the holding of general election to the Assembly. In the present case, late General Ziaul Haq did not appoint any but Mr. Ghulam Ishaq Khan, upon assuming the office of the President, fixed 16th November, 1988 for the general election of the National Assembly and 19th November, 1988 for the general election of the Provincial Assemblies.

Since Ordinance No. II of 1988 was a Finance Ordinance, it was to the converted into an Act on or before the expiry of the same, but as the National Assembly remained dissolved notwithstanding the finding by this Court that the dissolution order was without jurisdiction, the President issued another Finance Ordinance in the form of Ordinance No. XXII of 1988. After the completion of the election of National Assembly, Ordinance No. XXII of 1988 was converted into Finance Act (Act No. VI of 1988) on 26th December, 1988.

Having given the above factual background, I may take up the above contentions. The first contention which requires consideration is, as to whether the President on 26th October, 1988 was competent to issue Ordinance No. XII of 1988.[para. 7, 8, 9. p. 478, 479]A

It may be observed that Article 89 of the Constitution does not expressly prohibit against the re-enactment of an expired Ordinance, but the same provides that if an Ordinance is not laid before the Assembly and approved, it shall lapse on the expiry of four months as pointed out by Mr.Kiakaus J. in the case of Tirathmal and Others Vs. The State (Supra) while construing more or less an identical provision of 1956 Constitution. In spite of absence of an express prohibition in some of the above case, it has been held that the President or the Governor cannot re-enact an expired Ordinance. In the case of Government of Punjab through Secretary, Home Department Vs. Zia Ullah Khan and 2 Others (Supra), I speaking on behalf of the Full Bench (comprising five Judges), highlighted the rationale for holding so, the relevant portion of the above judgment has been reproduced hereinabove in para 12 and need not be repeated. However, it will suffice to observe that the underlined idea/philosophy seems to be that the legislative power vests in an Assembly, which power cannot be usurped by a Head of the State or a Province while the Assembly exists.The above reason will not hold good if an Assembly stands dissolved and for a justifiable reason, it has not been re-constituted within the period specified in the relevant Article of the Constitution.

I am inclined to hold that if the National Assembly does not stand dissolved, the President cannot usurp the legislative power of the National Assembly by repeating the same Ordinance without submitting it in terms of Article 89 of the Constitution to the National Assembly.Kaikaus J. though has given weighty reasons in the case of Tirathmal (Supra) for taking a contrary view, but in my humble view, it runs counter to the spirit scheme of the Constitution as pointed out by me in the case of Government of Punjab through Secretary, Home Department Vs. Zia Ullah Khan and two others (Supra).But if the National Assembly stands dissolved, and its elections could not take place within the stipulated period of 90 days as provided in clause (5) of Article 48 of the Constitution for a reason not attributable to the President and such delay is found by the competent Court justifiable, the President will be competent to re-enact an Ordinance.Shafiur Rahman J. in his above quoted opinion has rightly pointed out that there cannot be a legislative vacuum in the interregnum between the date of dissolution and the re-constitution of the Assemblies. A State cannot be run if for certain period there is no legislative power vested in any authority to legislate one particular subject. The observations of Shafiur Rahman J. in the above quoted portion of his opinion, namely, “However,it should be clear that by its very nature in the context to the present impasse the power under Article 82(2) and Article 128 is capable of being invoked once so as not to exceed in all the period of four months under Article 89(2)(a) and three months under Article 128(2)(a)” are to be viewed in the context of the facts of the above case i.e. the elections were to be held on 6th November, 1988 and 19th November, 1988 and the above opinion was rendered on 24th October, 1988 and, therefore, by the time new Assemblies would have been re-constituted, the Ordinance could have been placed before the National and the Provincial Assemblies within period of four months and three months as provided for under Articles 89 and 128(2)(a) of the Constitution respectively. The above observation do not lay down that in no case, there can be a second Ordinance.

The case in had stands on stronger footing in view of the following peculiar features :-

(1) That this Court though maintained the finding of the Lahore High Court that the order of dissolving the National Assembly was without jurisdiction but it declined to restore the same, and when then Speaker of the National Assembly attempted to summon the Assembly, he was prohibited from doing so by this Court. If the National Assembly would have been restored on 5th October, 1988, Ordinance of could have been converted into an Act as three weeks would have still be available before the expiry of the above Ordinance, and there would not have been any need to issue Ordinance No. XXII of 1988.

(2) That this Court in its order dated 5th October, 1988 held that in view of the exceptional situation the elections scheduled on 16th November, 1988 and 9th November, 1988 would be valid under the Constitution.

(3) That Ordinance II of 1988, which was to expire on 26th October, 1988 was a Finance Ordinance, and therefore, it was a matter of State revenues.

(4) That the elections could not be held within the stipulated period on account of lapse inter alia on the part of the Parliament, in not complying with the provisions of Articles 222(2) read with 51(3) of the Constitution as pointed out in the above President Reference No. I of 1988.

I may reinforce my above view by giving an example. Suppose the National Assembly completes its constitutional tenure, but elections could not take place within constitutional mandate on account of an act of God for nearly constitutional mandate on account of an act of God for nearly one year. Can it be said that after the expiry of a Finance Ordinance upon expiry of four months, the President cannot re-enact the same by invoking re-server power contained in Article 89 of the Constitution. [para. 19, p. 496, 497,498 & 499]D, F.

Adverting to the last submission of Mr. Sharaf Faridi that in case this Court holds that there was no infirmity in the above Ordinance and the notifications, the cases should be remanded to the High Court to examine the question, whether the valuations of the various items of goods were fixed reasonably or the same were arbitrary. In furtherance of his submission, he has referred to the judgment of a Division Bench of the High Court of Sindh in the case of Phassco Hardware C. Vs. The Government of Pakistan and 3 others (PLD 1989 Karachi 6210, in which I, while heading the Bench as the Chief Justice, observed as follows :-

In our view a notification under section 25-B can be impugned if it can be demonstrated that the powers contained under section 25-B have been exercised arbitrarily or capriciously, for example in a case where the import value in terms of section 25 of a particular item is US Dollars 20, whereas under a notification issued under section 25-B the C.B.R. or the Officer authorised by it fixed the value at 40 US Dollar. There should be nexus between the notified value and the actual market value as observed hereinabove. But some discrepancy between the two will not vitiate the notification. In the instant case the difference between the price declared by the petitioners namely, 40 US Dollars per dozen and the notified price 42 US Dollars, comes to about only 5% and, therefore, it cannot be urged that the powers under section 25-B have been exercised arbitrarily or capaciously as to make notification illegal.

We may also point out that there will be presumption in favour of the validity of a notification under section 25-B and the burden to prove that it is not valid on the ground that the power has been exercised arbitrarily or capriciously will be on the person who so alleges.”

I have given my serious thoughts to the above submission and I am of the view that reasonableness of the various valuations fixed for various items of goods cannot be subject matter of an enquiry in exercise of constitutional jurisdiction by the High Court. The above controversy requires thorough factual probe into the matter on the basis of materials to be brought on record by the parties. The remedy, if any, of the respondents is to make representations through their association to appellant No. 3 and/or to approach any other competent forum. I am, therefore,not inclined to accept the above contention.[para. 26, 27, p. 505, 506]L.

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