P L D 1989 QUETTA 25




Per Abdul Qadeer Chaudary, C. J.

(a) Constitution of Pakistan (1973). Art.69, 130(2-A)(3), 69,112, 55, 105, 131(c), 107, 248 & 199—

Under Article 107 of the Constitution, duration of a Provincial Assembly is five year. Therefore, dissolution of a Provincial Assembly before its constitutional period must be justified on the definite reasons provided by the Constitution. Election is a cumbersome job. A lot of expenditure is involved. Entire Government machinery is gearded up to complete the election process, therefore, extraordinary powers of dissolution of Assembly, must be exercised carefully, faithfully and in accordance with the provisions of the Constitution. According to their admissions, the Chief Minister no clear majority except with the casting vote of Speaker. In such circumstances, Constitution properly demanded that advice of such Chief Minister should have been weighed with caution and sanctity of basic charter should have been maintained. An Assembly is an important organ of the State and every effort should have been explored which is possible under the law to save the Assembly from dissolution. The Governor has not exercised his power under the Constitution, as 48 hours were evidently at his disposal. Therefore, before taking this extreme action, the Chief Minister ought to have been advised to seek vote of confidence before his advice was accepted.

We have come to the conclusion that a Chief Minister who has not obtained vote of confidence from majority members of an Assembly cannot advise the Governor to dissolve the Assembly under Article 112(1) of the Constitution.
[p. 39, 40] Q.

It is argued by the learned Counsel for the respondents that the Governor shall not be answerable to any Court for the exercise of power and performance of functions as laid down in Article 248 of the Constitution; but this provision does not restrict the right of any person to bring appropriate proceedings against the Federation or a Province. The purpose or Article 248 of the Constitution is to save the person of Governor being involved in litigation, but the jurisdiction of the Court is not ousted and an action of the Governor, if unwarranted by law, can certainly be challenged in a Court of law. There cannot be two opinions on this point as it is well recognized that any infringement of legal right of an aggrieved person can be brought to the Court for redressing his grievance and the indemnity clause does not save illegal acts. [p. 40] R.

It is contended that political questions cannot be settled by the Courts. No doubt, pure political questions cannot be agitated before the Courts, but where the rights of the parties are affected, and the actions of the functionaries of the State are challenged, being violative of the provisions of the constitution or law, then the Courts must decide such questions. [p. 41] S.

In the light of what has been stated above, the contention that proceedings even unconstitutional are unchangeable in Court of law, seems devoid of merits and we see no force in it. [p. 42] T.

Mr. Charan Singh while advising for the dissolution of the Assembly had also given his reasons in the letter addressed to the President, therefore, both, on account of different provisions of Article of the Constitutions and factual position that reasons were given in the letter addressed to the President by Mr. Charan Singh, the cited cases would apply to the instant case. The Chief Minister had not given any reasons while tendering his advice to the Governor. Though the advice tendered by a Chief Minister would not be judged on the touchstone of judicial review, but it is not clear what reasons prevailed with the Chief Minister in giving such advice. The reasons advanced in support of such advice would naturally promote healthy democratic conventions. [p. 43] U.

A word about condonation of acts of Mr. Jamali. On 2nd December, 1988, the provincial Assembly consisted of 44 members. It is undisputed that 21 members including Mr. Jamali himself, expressed the confidence in him. The Speaker exercised his casting vote in favour of respondent No.5. in view of the fact that there were 21 votes in favour of Mr. Jamali and 21 against him, and one member had walked out, technically Mr. Jamali was ascertained to be enjoying confidence of the majority members present in the session. He was thus invited to become Chief Minister; accordingly he took oath of office and performed his functions as Chief Executive of the Province. The Governor could not ignore the Certificate of Speaker. His status as Chief Minister was not challenged floor of the House by moving vote of no-confidence. There was negotiations for power by different groups outside the Assembly Chambers. In such circumstance, all legitimate acts performed/done by him, during this period would be condonable on the principle enunciated in the case of Miss Asma Jilani v. The Government of the Punjab. [p. 44] W.

Petition allowed.

Dates of hearing: 19th, 21st, 22nd, 23rd and 24th January, 1989

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