P L D 1991 KARACHI 1

KHALID MALIK AND OTHERS

V/S

FEDERATION OF PAKISTAN AND OTHERS

PER Saeeduzzaman Siddiqui, Act. CJ

(a) Constitution of Pakistan (1973), Articles 58, 199 & 97:

Articles 58(2(b) & 199 — Dissolution of National Assembly by the President — While
exercising power undr Article 58(2)(b) President has to first form opinion objectively with
regard to preconditions mentioned in article 58(2)(b) of the Constitution — President, after
having formed such an opinion, is free to exercise his discretion one way or the other,
namely, either to dissolve the Assembly or refuse to dissolve it — Whether process of
opinion forming by the President is objective one — Test — While discretion so vested in
the President under Article 58(2)(b) of the Constitution may not be controlled by the
superior Courts in exercise of the power of judicial review enjoyed by the Superior Courts
under the Constitution — Role of Courts while exercising powers of judicial review in such
cases stated. — [Judicial review]

While exercising power under Article 58(2)(b) of the Constitution the President has to first
form opinion objectively with regard to the preconditions mentioned in the said Article
namely “that a situation has arisen in which the Government of the Federation cannot be
carried on in accordance with the provisions of the Constitution and that an appeal to
electorate is necessary”. And after having formed such an opinion the President is free to
exercise his discretion oine way or other, namely, either to dissolve the Assembly or refuse
to dissolve it. While the discretion so vested in the President under the above provision of
law may not be controlled by the superior Courts in exercise of the power of judicial review,
the process of opinion forming by the President in such a case, is subject to the powers of
judicial review enjoyed by the superior Courts under the Constitution. The Courts, however,
while exercising these powers of judicial review in such cases cannot assume the role of an
appellate Court or an auhority superior to President. The Court in exercise of its power of
judicial review will confine itself to the consideration that the grounds stated by the
President in his order under review, bore reasonable nexus to the preconditions prescribed
under Article 58(2)(b) of the Constitution and that there is some material to support the
grounds stated by the President in his order. The test is that the process of opinion forming
by the President is an objective one, the Courts can objectively analyse the material placed
before them to find out if the same established reasonable nexus between the grounds stated
by the President in his order qua the preconditions of Article 58(2)(b) of the Constitution.
The Courts, therefore, necessarily refrain from entering into any enquiry as to the
correctness of the grounds mentioned in the order of the President and will accept the same
on the face value and thereupon proceed to examine whether these grounds bore any
reasonable nexus to the preconditions mentioned in Article 58(2)(b) of the Constitution and
that there existed any material in support thereof or not. If the Court finds answers to these
questions in the affirmative, it will uphold the order of
President or otherwise it will stike down same as unconstitutional. [p.34]A

F.A. KHAN AV. GOVERNMENT OF PAKISTAN PLD 1964 SC 520. Ref.

Article 199(b)(i) — Scope of — Judicial review of a discretionary action of an executive

authority is substantially different than that of a person who is in detention and is brought
before the High Court. — [Judicial review]

When a person who is in detention is brought before the High Court, the Court has to satisfy
itself with regard to the lawful manner of the detention of such person and if the Court finds
that the detention is not lawful, it forthwith sets him at liberty striking down the detention.
However, the scope of judicial review of a discretionary action of an executive authority is
substantially different. The Court in the latter case cannot substitute its own satisfaction for
the satisfaction of the executive authority. [p.41]C

STATE OF MAHARASHTERA V. B.K.TAKKAMORE AIR 1967 SC 1353. Ref.

GOVERNMENT OF WEST PAKISTAN V. HAIDER BUX JATOI AND OTHERS

PLD 1969 SC 210; DR. RAM AKRISHAN BHARDWAJ V. THE STATE OF DELHI
AND OTHERS AIR 1953 SC 318; KESHAV TALPADA V. EMPEROR AIR 1943 FC 1;
HASSAN NASIR V. THE CROWN PLD 1953 SINDH 37; DHIRAJLAL GIRDHARILAL
V. COMMISSIONER OF INCOME TAX, BOMBAY, AIR 1955 SC 271. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Order of the

President dated 6.8.1990 dissolving National Assembly was neither general nor vague in
terms — Grounds mentioned in the said Order were not only specific but the particular
provisions of the Constitution which had been violated had been pin-pointed. [p.47]E

FEDERATION OF PAKISTAN V. MUHAMMAD SAIFULLAH KHAN PLD 1989 SC

166 Distinguished.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — President could only dissolve the National Assembly when he was of the opinion
that either Constitutionala mechanism had broken down or a stalements had occurred which
rendered the observance of the provisions of the Constitution impossible or impracticable —
Held, in what circumstances it could be said that the Constitutional mechanism had broken
down or a stalement had developed or a deadlock had taken place was difficult to define
with precision and exactness as that would depend on the facts and circumstances in a given
case and their resultant effects on the facts and circumstances in a given case and their
resultant effects on the working of the Government of Federation — Courts would make no
attempt to lay down any definite parameter in that regard as it might amount to
encroachment upon, and whittling down of the discretion of the President vested under
Article 58(2)(b) of the Constitution. [Judicial review] (p.48)F

FEDERATION OF PAKISTAN V. MUHAMMAD SAIFULLAH KHAN PLD 1989 SC

166. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — Statement of facts by the President with regard to failure of National Assembly as
a legislative body, scandalous horse-trading anmd political stock exchange; conflict betwen
the Federal Government and the two Governments of Provinces; non-convening of meeting
of Council of Common Interests and National Finance Commission; total failure of law and
order situation in one of the Provinces; unabated defection of members of National
Assembly from the parties on whose tickets they were elected in the Assembly were the
situations which spoke for themselves and was a judgment on political issues by the highest
executive authority of the country and could not form the subject of judicial review before
the Court. [Judicial review] (p.52)G

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — Scope — Grounds of horse-trading and corrupt practices of the house stated by
the President in his order of dissolution of National Assembly dasted 6.8.1990 found full
support from the material on record and bore reasonable nexus to the conditions prescribed
under Article 58(2)(b) of the Constitution. [p.53]J

Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial review —

Government of Federation not only avoided the convening of the meeting of “Council of
Common Interests” and “National Finance Commission” and showed no respect to the
wishes of Provinces, Senate and the President in that regard — Such attitude on the part of
the Government of Federation, Held, clearly amounted to violation of the Constitutional
arrangement of the working of the Federation, which led to extreme bitterness between the
Federal and Provincial Governments — President, therefore, was justified in concluding
that a situation had arisen in which the Government of Federation could not be carried on in
accordance with the provisions of the Constitution.[p.57]L

(per Saeeduzzaman Siddiqui, Act. CJ)

Articles 58(2)(b) & 97 — Dissolution of National Assembly by the President — People’s

Works Programme launched by Federal Government was meant for rural development
including the provision of electricity, water, small industries, construction of farm to market
roads and these subjects were Provincial subjects which should have been left for
implementation through the agencies of Provinces — Extreme resentment and protests were
shown by the Provincial Governments over the implementation of People’s Works
Programme in their respective Province through the Agency of Federation — People’s
Works Programme, in the absence of appropriate legislation thus could not be undertaken
by the Federal Government — President while describing launching of the People’s Works
Programme by the Federal Government as a contravention of the Constitutionala provisions
was not unjustified. [pp. 57-58]M,N & O

Article 58(2)(b) — Dissolution of National Assembly bys the President — Large number of
ad-hoc appointments were made by the Federal Government in service of Federation and
statutory corporations controlled by it, in flagrant violation of Service Rules and Law —
Such action on the part of the Government of Federation thus amounted to erosion of the
basic structure of service in the country which could result in far-reaching consequences of
adverse nasture on the working of Government in the long run. [p.60]S

Article 58(2)(b) — Dissolution of National Assembly by the President — Existence of any

other remedy either under the Constitution or under the law of the land could not fetter the
discretionary power of the President under Article 58(2)(b) of the Constitution, if exercise
of such power was available in the circumstances of the case. [p.61]V

Articles 58(2)(b) & 199 — Power of the President to dissolve National Assembly — Scope
— Situation where a Government cannot be run in accordance with the provisions of the
Constitution detailed — Judicial review — Scope — [Judicial review]

Article 58, Constitution of Pakistan (1973) empowers the President to dissolve the National
Assembly but it is not unfettered. The preconditions imposed by the Constitution must be
satisfied before exercising such power. It is to be exercised sparingly and in extreme
circumstances when the Constitutional machinery has paralysed. Article 58 does not only
confer a harsh power on the President but it casts a duty on the Government to rule, act and
conduct according to the Constitution and law. If the rule of law is respected, patience and
tolerance is exhibited; honesty and morality as opposed to corruption, nepotism and
favouritism is practised, policy of live and let live others is adopted, all administrative
actions are taken in a firm and fair manner and policy of confrontation is avoided, the
Constitutional machinery can never be paralysed and no one should have any fear. [p.
103]KKK

Article 58(2)(b) — Term “situation has arisen” — Connotation — Word “arise” —

Meaning — Existence of a crisis or situation since long cannot be trated as estoppel jfor
exercising power under S.58(2)(b) if it is otherwise justified —
[Words and phrases]

Word “arise” means “to rise up”, “to take rise”, “originate”, “to come into being”. The
existence of certain facts unless they lead to the point that Government of Pakistan cannot
be run according to Constitution will not be covered by the term used in Article 58(2)(b).
But the moment such situation attains magnitude which paralyses the administration and
Government cannot be run, Article 58(2)(b) will be attracted. Such situation cannot arise all
of a sudden like a fountain. It is like a volcanoi which warms up, simmewrs, jolts, jerks and
then blows up. Arising of such a situation is the culminating point of unrest, disturbance,
crisis, and problems which may be existing since long without paralysing the Government.
Therefore, the existence of a crisis or situation since long cannot be treated as estoppel for
exercising power under article 58(2)(b) if it is otherwise justified. [p.70]AA
Article 58(2)(b) — Dissolution of National Assembly by the President — Judicial tests for
determining whether Government was run in accordance with the Constitution or the utility
and efficacy of National Assembly had been defeated. [p.71]CC

MUHAMMAD SHARIF’S CASE PLD 1988 LAHORE 725; HAJI SAIFULLAH’S CASE
PLD 1989 SC 166. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Where out of fear
of a Bill being lost the legislative business is blocked in reflects a deadlock, stalemate and
suspension in the legislative field spreading despondency, fear and uncertainty in the
administration which will amount to failure of very important part of the Constitution
machinery. [p.76]II

SAIFULLAH’S CASE KPLD 1989 SC 166;

BASU’S CONSTITUTION OF INDIA VOL. E, P. 343;
MUHAMMAD SHARIF’S CASE PLD 1988 LAHORE 725. Ref.

Article 58(2)(b) — Dissolution of National Assembly by the President — Disregarding a

resolution of Senate by the Federal Government, which did not have a binding effect,
expressing scorn and disrespect or challenging its legal validity could not by itself be a
ground for dissolution of National Assembly — Consequentially it might support other
materials but not individually. [p.85]NN

Article 58(2)(b) — Dissolution of National Assembly by the President — Manner in which

Federal Government made huge number of appontments to the Civil services, there was
likelihood of its being destroyed and criteria for appointment seemed to have been
completely ignored to the detriment of the Civil Services of Pakistan — Such action of the
Federal Government destroyed the structure of the services and caused anger, anguish,
acrimony, dissatisfaction and defiance amongst the services of Pakistan. [p.86]PP

Article 58(2)(b) — Dissolution of National Assembly by the President — People’s Works

Programme launched by the Federal Government did not have any legal action as no law
was enacted for the implementation of said programme in the Provinces by the Federal
Government — Said progamme had been a bone of contention between the Provinces on the
one hand and Federal Government on the other as Provinces contended that the programme
was an encroachment upon the Provincial autonomy and Provincial subjects which were
within their domain — Such programme, therefore, could be termed as waste of
Government resources in an unconstitutional manner by the Federation. [pp. 86-87]OO&SS

Article 58(2)(b) — Dissolution of National Assembly by the President — One of the ground
in the order of dissolution was corruption and nepotism in the Federal Government, its
functionaries and authorities and agencies including the statutory and other corporation.
Banks and also in the ranks of holders of representative offices — Facts stated and
documents produced prime facie gave the impression of instances of corrupition,
favouritism and nepotism — Where corruption was of enormous nature affecting major
spheres of life and it was a motivating force in taking major decision and publlic dealings by
the Government and administration, it kwould surely have nexus with the order of
dissolution of National Assembly — Corruption” — Concept and its effect on society
discussed.

The word “corruption” has nowhere been defined but it has diverse meanaings and far-
reaching effects on society, Government and people. It is always used in a sense which is
completely opposite to honesty, orderliness and actions performed according to law. It
covers a wide field and can apply to any colour of influence, to any office, any institution,
any forum of public. A person working corruptly acts inconsistently with the official duty,
the rights of others and the law governing it with intention to obtain an improper advantage
for self or someone else. There are various forms of corruption. One where a person
discharges his duty according to law but on certain consideration. His act may be proper and
legal but its performance is influenced by extraneous consideration be it monetary, affection
or love. The culture of corruption and bride, of late, has embedded in the society to this
extent that even routine works which should be done without any approach or consideration
are commonly known to be done only on consideration. This bribe culture has plagued the
society to this extent that it has become a way of life. [p.87]TT

Article 58(2)(b) — Order of dissolution of National Assembly by the President — Several

grounds for dissolution of National Assembly had been stated in the order of the President
some of which were directly connected with the Dissolution Order and some were indirectly
connected — Held, it was the cumulative effect of all the grounds which had led to an order
of dissolution which must be taken for determining its validity. [p.98]DDD

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — An order on the basis of irrelevancy or non-existence of any one of the grounds
or reasons can be vitiated provided such grounds and reasons are so intertwined, interlaced
and intimately connected with the relevant grounds that they cannot be separated from the
other grounds or that one is interdependent upon the other — Such principle, however, is
not applicable to detention matters which are considered on completely different footings.
[p. 99]EEE

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — If the President had material and basis for forming an opinion that situation had
arisen in which the Government could not be run in accordance with the Constitution, then
the exercise of discretion could not
be quetioned, especially when an specific allegations of mala fides had been substantiated
— [Judicial review] (p. 99)FF

Article 58(2)(b) — Term “appeal” referred to in Article 58(2)(b) of the Constitution sugests
reference of the matter to the “higher forum” which is the electorate — Situation
contemplated by Article 58(2)(b) of the Constitution is a situation excluding all other
avenues but to refer the matter to the electorate for its fresh verdict.

Althoiugh it is difficult to visualise different situation which would attract the provisions of
Article 58(2)(b), but suffice it to say that the situatiion cointemplated by Article 58(2)(b) is
a situation excluding all other avenues but to refer the matter to the electorate for its fresh
verdict. The word “appeal” referred to in clause (b) of Article 58(2) has also a special
significnce. The meaning of the word “appeal” is “removal of the cause or a suit from an
inferior Court to a superior Judge or Court for re-examination or review”. Accordingly, the
term “appeal” referred to in clause (b) of Article 58(2) suggests reference of the matter to
the “higher forum”, which, in the
present case, is the electorate. [p.111]NNN

Article 58(2)(b) — Provision of Article 58(2)(b) of the Constitution empowers the President
to make an appeal to the electorate where he has formed an opinion as to a situation as
contemplated in the said Article. [p.12]OOO

Articles 58(2)(b) & 199 — Discretion to be exercised by the President under Article
58(2)(b) — Extent — Judicial review — Scope — [Judicial review]

Article 58(2)(b) of the Constitution does not vest the President with absolute discretion as is
the case with many other Articles in the Constitution, where the discretion with which the
President has been vested is absolute and cannot be called in question by the Courts. The
discretion to be exercised by the President under Article 58(2)(b) is to be conditioned with
his opinion in regard to the existence of the circumstances requiring an appeal to the
electorate. The Constitution, therefore, provides a check upon the discretion to be exercised
by the President, the intention being that such discretion should not be exercised arbitrarily
or unreasonably. The Court, therefore, would have jurisdiction to subject such action to a
judicial scrutiny, but the question, whether there was sufficient material before the President
to invoke Article 58(2)(b), or on which a just and reasonable opinion could be formed, of
course, cannot be examined by the Courts. However, if the Court comes to a conclusion that
the President has acted upon grounds which are non-existent, or extraneous, having no
nexus to the prerequisites for exercise of the power under Article 58(2)(b), then the Courts
can strike down the action as illegal or unconstitutional. [p.115]PPP

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — If the grounds stated in the order of dissolution of National Assembly were
distinct and sepasrable or it was clear on the face of the order, which of the grounds were
the main grounds on which the opinion of the Authority had been based then the grounds
which had no relevance to the preconditions or were insignificant could be ignored by the
Court — Court, however,. has to direct its judicial scrutiny to the objectivity of the situation
— [Judicial review] (p. 118)OOO

GOVERNMENT OF WEST PAKISTAN V. HAIDER BUX JATOI PLD 1969 SC 210;

MAULVI TAMIZUDDIN KHAN V. GOVERNOR-GENERAL’S SPECIAL REFERENCE
NO. 1 OF 1955 PLD 1955 FC 435; MOULVI MUHAMMAD ALI V. CROWN PLD 1950
FC 1; RAFIQUE AHMED SHEIKH V. CROWN PLD 1951 LAHORE 17; THE STATE
OF MARASHTRA V. BABULAL KIRPARAM TAKKAMORE AIR 1967 SC 1353. Ref.

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — Provision of Article 58(2)(b) has to be invoked by the President to meet a serious
situation and the purpose of the exercise ought not to be defeated merely because oine or
some of the grounds in the order of the President were found to be unsustainable.

Article 58(2)(b) of the Constitution is to be invoked by the President to meet a serious

situation and the entire purpose of the exercise might be defeated merely becaluse one or
some of the grounds in the President’s Order are found to be unsustainable. If a serious
situation has arisen requiring an appeal to the electorate, then the action of the President will
have to be examined objectively. However, if none of the grounds is found to have nexus
with the preconditions for the exercise of such power, the action can then be struck
down.[p.118]RRR

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — Scope — Onus would be discharged by the Federation by production of tangible
material before the Court to show that the opinion under Article 58(2)(b) of the Constitution
had been reasonably and honestly formed.

The Court cannot look into the sufficiency or insufficiency of the grounds or the proof of
the Court is not required to hold a separate enquiry into the charges. The standard of proof,
in the form of material to support the charges, has to examine is, whether the President has
exercised his poweer within the perimeters of the Constitution or the same is in excess of his
authority, and in that, the Court must also be satisfied that the action has been taken by the
President in good faith and not in a colourable exerise of power. While determining whether
the opinion has been honestly or faithfully formed by the President, care must be taken that
the Court does not substitute its own opinion for that of the President. Article 58(2)(b) does
snot confer any privilege on the President but it imposes a constitutional obligation upon
him to act when in his opinion, the Government of the Federation cannot be run in
accordance with the Constitution and an appeal to the electorate is necessasry.
Consequently, it would be the duty of the Court to explore every possible explanation for
the validity of the action and the impugned action would be liable to be struck down only
when the grounds upon which it has been taken are found to have no nexus with the
preconditions laid down by Article 58(2)(b) of the Constitution either individually or
collectively. No doubt, the Courts are under an obligation to guard the Constitution and to
preserve its parliamentary democratic character, but in that the Courts will only have to
examine whether the opinion has been exercised by the President, keeping in mind the
constitutional requirements or he has simply acted on whim or fancy. However, if the action
taken by the President is neither found to be in excess of the authority nor it is found to be
mala fide, the Courts cannot enquire as to whether the opinion has been correctly formed.
The onus would be discharged by the Federation by production of tangible material before
the Court to show that the opinion under Article 58(2)(b) has been reasonably and honestly
formed. [p.119] SSS

All that is required to examine is, that the grounds stated in the dissolution order have been
supported by material and such material must be placed before the Court to determine
whether the opinion has been reasonably formed by the President and the consequent
discretion has been properly exercised by him. The onus support the grounds with material
also lies upon the Federation. [p.121] TTT

Articles 58(2)(b) & 199 — Dissolution of National Assembly by thje President — Judicial
review — President had to form an objective opinion and if the President was of the opinion
that he had no other choice but to dissolve the National Assembly or that the members of
the National assembly were incorrigible, then under the circumstances all that the Court was
require to examine was whether the opinion had been honestly and reasonably formed by
the President and if it was so formed then the impugned order could be sustained upon this
ground as there appeared to be nexus between the same and the preconditions which could
attract the provisions of Article 58(2)(b) of the Constitution — Where nothing had been
pointed out in that regard which could make it doubtful that the opinion had been
reasonably nor honestly formed, impugned order could be sustained on that ground.
[p.122]UUU

Article 58(2)(b) — Dissolution of National Assembly by the President — Neither the

performance of the National Assembly could be judged on the touchstone of the legislative
work disposed of by it nor the President was empowered to do the same — Quantum of the
performance of the Government and the degree of its achievements were outside the
purview of Article 58(2)(b) of the Constitution — Order of dissolution of Assembly thus
could not be sustained upon that ground.[p. 123]VVV

Articles 58(2)(b) & 97 — Dissolution of National Assembly by the President — kPeople’s

Works Programme which was launched by Federal government and was purely a welfare
programme and fell within the ambit of Fourth Schedule, Concurrent List, Item No.25, did
snot tantamount to extension of the authority of the Federation to the Provinces in violation
of Article 97 of the Constitution and thus had no nexus with the preconditions required for
exercise of powers by the Presidnt udner Article 58(2)(b) of the Constitution especially
when the scheme was not in derogation of but in addition to the functions assigned to the
Provinces under the Constitution. [p.123]XXX

Article 58(2)(b) — Dissolution of National assembly by the President — Allegations of

disrespect by the Federal Government/Prime Minister for judiciary and Senate — Alleged
remarks made by Prime Minister though uncalled for could not call for dissolution of
National assembly by the President. [p. 124]YYY

Article 58(2)(b) — Dissolution of National Assembly by the President — Alelgation of

disrespect by Federal Government/Prime Minister for Judiciary — Judgment given by the
Supreme Court was openly criticised with the active connivance of the Federal Government
— Superior Judiciary could itself take notice of such contempt, if any — If no notice was
taken by the Judiciary itself, same could not call for the dissolution of the Assembly under
Article 58(2)(b). [p.124]ZZZ

Article 58(2)(b) — Dissolution of National Assembly by the President — Charges of

corruption and nepotism although individually could not be made a ground for dissolution
of National Assembly but considered with the circumstances that utility and efficacy of the
National Assembly as representative institution elected bythe people under the Constitution,
and its mandate, was defeated by internal dissension and frictions, persistent and scandalous
horse-trading for political gain and furtherance of personal interests, corrupt practices and
inducement, in contravention of the Constitution and the law, failure to discharge
substantive lkegislative functions other than the adoption of the Finance Bill and that the
Assembly had lost the confidence of thepeople, would have nexus with the preconditions
laid down for exercise of power under Article 58(2)(b) of the Constitution. [p.124]AAAA

Article 58(2)(b) — Dissolution of National Assembly by the President — National

Assembly being the highest representative body reflecting the will and aspirations of the
people of Pakistan, provisions of article 58(2)(b) of the Constitution must be strictly
construed, keeping in mind the spirit of the Constitution and the provision
itself.[p.126]CCCC

Articles 58(2)(b) & 199 — Dissolution of National assembly by the President — Juricial
review — Provisions of Article 58(2)(b) have to be interpreted in consonance with the spirit
of the Constitution — In case the grounds for dissolution of National Assembly by the
President were found to be extraneous or irrelevant to the preconditions laid down in Article
58(2)(b) for the exercise of power thereunder, the action may be struck down by the Court
— Such action of the President however, can be sustained if any or some of the grounds
upon which the action has been based, are found to be valid. [p.126]DDDD

Articles 58(2)(b) & 199 — Dissolution of National Asembly by the President — Judicial
review — Action under Article 58(2)(b) of the Constitution which confers discretionary
powers on President would be warranted only when the President was of the opinion that
there was no other choice left to him, except to dissolve the National Assembly.
[p.126]FFFF

Article 58(2)(b) — Dissolution of National Assembly by the President — Allegation of

mala fides — Mere fact that the President after the dissolution of National Assembly did not
retain the former Prime Minister as a care-taker Prime Minster could not by itself give rise
to an inference that the President
had acted mala fide — President, in his discretion could appoint a new care-taker Prime
Minister. [p.129]HHHH

Articles 58(2)(b) & 199 — Dissolution of National Assembly by the President — Judicial
review — Scope — Mere fact that Article 58(2)(b) of the Constitution requires holding of
elections within 90 days could not grant immunity to the impugned order of the President
dissolving the National Assembly if the same was found to have no nexus with the
preconditions laid down by Article 58(2)(b) for exercise of such power.

The mere fact that Article 58(2)(b) of the Constitution requires holding of elections within
90 days cannot grant immunity to the impugned order if the same is found to have no nexus
with the preconditions laid down by Article 58(2)(b) for exercise of such power. It would
also be erroneous to assume that the President undr Article 58(2)(b) acts on behalf of the
electorate. The President in fact, exercise his own discretionary power which vests in him
under the Constitution and the exercise of such power must be based upon the opinion
which may be formed by the President before ordering the dissolution of the National
Assembly and making an appeal to the electorate. when any action, which may be taken by
an authority empowered to act under a statute, is to be based upon his opinion, the Courts
would have power of review in such cases. [p.129]IIII

It is for the President acting under Article 58(2)(b) to form an opinion and not for the Court.
Court in the exercise of its Constitutional jurisdiction has only to examine the material and
the grounds upon which the opinion of the President has been formed. The Court can neither
substitute its own opinion for that of the President nor it is expected to conduct a separate
enquiry in respect of each of the grounds. [p.129]JJJJ

Articles 58 & 199 — Power of dissolving National Assembly under Article 58 rests with the
Prime Minister as well as the President — Scope of respective powers of the President and
the Prime Minister — Judicial review — Constitutions.

Article 58, sub-Article (2)(b) has given upper hand to the President over the Prime Minister
and the Assembly in certain circumstances. [p.152]QQQQ

People are the final and supreme arbiter and ultimate sovereign in a democratice State.
Hence appeal to be electorate and holding of general elections has always been considered
as a welcome and healthy omen. In Article 58 of the Constitution of Pakistan two persons
have been given the power of dissolving the Assembly and making an appel to the
electorates. The first of them is the Prime Minister, who has unrestricted power of
dissolving the National Assembly at his will and making an appeal to the electorate, while
the second is the President, who in certain circumstances has been given power to dissolve
the National Assembly and appeal to the electorate. When the Constitution gives such
power to the President, then it is the duty of Court as a defender of the Constitution to
respect the power. Of course there is a duty cast on the Court to satisfy itself that the power
has been exercised by the Prime Minister or President in accordance with preconditions
prescribed by the Constitutioin. [p.152]RRRR

MUHAMMAD SHARIF V. FEDERATION OF PAKISTAN PLD 1988 LAHORE 725;

FEDERATION OF PAKISTAN V. HAJI MUHAMMAD SAIFULLAH KHAN PLD 1989
SC 166 not applicable.

MUHAMMAD ANWAR DURRANI V. PROVINCE OF BALUCHISTAN PLD 1989

QUETTA 25 distinguished.