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Petitioner: Mian MANZOOR AHMAD WATTOO VS Respondent: FEDERATION OF PAKISTAN and 3 others
Court Name: Lahore High Court Judge(s): Khalil-Ur-Rehman Khan, Malik Muhammad Qayyum, Munir A. Sheikh Title: Mian MANZOOR AHMAD WATTOO vs FEDERATION OF PAKISTAN and 3 others Case No.: Writ Petition No, 13274 of 1995 Date of Judgment:1996-10-30 Reported As: PLD 1997 Lahore 38 Result: Petition allowed
JUDGMENT
JUDGMENT ' 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
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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
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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
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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.
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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.
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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
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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…
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