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Mohtarma Benazir Bhutto Vs. President

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Mohtarma Benazir Bhutto Vs. President Case Judgement 23/12/2020, 120 AM P L D 1998 Supreme Court 388 Present: Sajjad Ali Shah, C.J., Saleem Akhtar, Fazal Ilahi Khan, Zia Mahmood Mirza, Irshad Hasan Khan, Raja Afrasiab Khan and Munawar Ahmad Mirza, JJ Mohtarma BENAZIR BHUTTO and another---Petitioners versus PRESIDENT OF PAKISTAN and others---Respondents Constitutional Petitions Nos.58 and 59 and Civil Miscellaneous Applications Nos.805, 935, 806 and 848 of 1996, decided on 29th January, 1997, reasons released on 13th September, 1997. Per Saiiad Ali Shah, C.J.; Saleem Akhtar, Fazal Ilahi Khan, Irshad Hasan Khan, Raja Afrasiab Khan and Munawar Ahmad Mirza, JJ. agreeing: Zia Mahmood Mirza, J. Contra- (a) Constitution of Pakistan (1973)--- ----Preamble & Art.239---Constitution (Eighth Amendment) Act (XVIII of 1985), Preamble---Eighth Amendment to the Constitution has come to stay in the Constitution unless it is amended in the manner prescribed in the Constitution. (b) Constitution of Pakistan (1973)--- ----Arts. 58(2)(b) & 184(3)---Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art.58(2)(b) of the Constitution---Grounds---Validity---President, under Art.58(2)(b) of the Constitution of Pakistan (1973), in his discretion can dissolve the National Assembly where he forms opinion on the basis of material before him having nexus with the Dissolution Order and Art.58(2)(b) of the Constitution 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---Once the evil is identified, remedial and corrective measures within the Constitutional framework must follow---Theory of total breakdown of Constitutional machinery as the only ground for dissolution of National Assembly having been rejected in the case of Muhammad Nawaz Sharif v. President of Pakistan PLD 1993 SC 473, was no more in the field-Contention that the President can invoke Art. 58(2)(b) of the Constitution 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, was repelled. It is not correct to say 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. 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. 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 of 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. Muhammad Nawaz Sharif v President of Pakistan PLD 1993 SC 473 distinguished. (c) Constitution of Pakistan (1973)--- ----Art. 58(2)(b)---Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art.58(2) (b) of the Constitution---Material for grounds of Dissolution Order---Requisites, sufficiency and validity---Not necessary that material produced in support of the grounds of the Dissolution Order in its totality must be present before the President at the time of forming opinion and must be scrutinized by him in detail---Sufficient if there is material having nexus with the order of dissolution and Art.58(2) (b) of the Constitution before the President after perusal of which he forms his opinion and passes order of dissolution---Nothing is wrong with the production of corroborative or confirmatory material in support of the grounds which have been made available after the date of the order of dissolution. http://plsbeta.com/LawOnline/law/content21.asp?Casedes=1998S17 Page 1 of 199 Case Judgement 23/12/2020, 120 AM (d) Constitution of Pakistan (1973)--- ----Art. 58(2)(b)---Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art.58(2) (b) of the Constitution---Grounds---Material for---Newspaper cuttings can be relied upon by the President as material in support of the grounds for dissolution. (e) Constitution of Pakistan (1973)--- .----Art. 58(2)(b)---Dissolution of National Assembly and dismissal of Prime Minister and the Cabinet by the President under Art.58(2) (b) of the Constitution---Grounds of order of such dissolution and dismissal ---Validity--Sufficient material with regard to the ground of extra judicial killings by the Government had been produced which had been properly and justifiably considered by the President; enough material was produced in support of the ground with regard to the belated implementation of the judgment in the case of appointment of Judges which was short of total compliance, the non implementation of which violated Arts.190 & 2A of the Constitution of Pakistan; adequate material was produced in favour of the ground of dissolution that the Prime Minister in her speech before the National Assembly had ridiculed the judgment of the Supreme Court in the appointment of the Judges' case which was also repeatedly telecast and in order to harass the Judges of the Supreme 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 which Bill ran counter to Art.209 of the Constitution which was already in existence for taking action against Judges before the body of Supreme Judicial Council; record was also available in favour of the ground of dissolution to show that complete separation of Judiciary from the Executive was being delayed and by law Executive Magistrates were given powers to sentence to imprisonment for three years, which was against the spirit of judgment of the Supreme Court; sufficient material was also available on the record in support of the ground of dissolution showing that under the orders of the Prime Minister telephones of the Judges of the Supreme Court, Leaders of the Political Parties and high ranking military and civil officials were being tapped and transcripts sent to the Prime Minister for reading and enough material was produced in support of the ground of the dissolution which covered the subject of corruption, nepotism and violation of rules---Supreme Court, in circumstances, upheld the order of dissolution of National Assembly and dismissal of the Cabinet passed by the President under Art.58(2)(b) of the Constitution of Pakistan (1973). Per Saiiad Ali Shah, C.J.; Afrasiab Khan and Munawar Ahmad Mirza, JJ. agreeing Zia Mahmood Mirza, J. Contra- (f) Constitution of Pakistan (1973)--- ----Preamble & Art. 2A---Basic structure of the Constitution of Pakistan (1973)---Prominent characteristics of the Constitution are amply reflected in the Objectives Resolution (Art. 2A) which is a substantive part of the Constitution---Main features reflected in the Objectives Resolution are Federalism and Parliamentary form of Government blended with Islamic provisions. (g) Constitution of Pakistan (1973)-- ----Art. 239---Constitutional amendment---constitution can be amended in the manner contemplated under Art.239 of the Constitution. (h) Constitution of Pakistan (1973)--- ----Art. 58(2)(b) [before its omission by Constitution (Thirteenth Amendment) Act (I of 1997)]---Provisions of Art.58(2)(b) of the Constitution [since omitted by Constitution (Thirteenth Amendment) Act (I of 1997)] had provided checks and balances between the powers of the President and the Prime Minister to let the system work without let or hindrance to forestall a situation in which Martial Law could be imposed. (i) Constitution of Pakistan (1973)--- ----Art. 186---Reference to Supreme Court by the President---Physical act of filing a Reference is a ministerial action which is routinely done---Where Reference was only physically filed in the Supreme Court on 21st and it was registered with the Registrar's office as late as the 25th in such circumstances, wild insinuations and casting aspersions in 'relation to a wholly innocuous act were an called for and there was no justification for imagining conspiracies and pre-determined plans which had not the remotest connection with reality. (j) Constitution of Pakistan (1973)--- ----Art. 186---Reference to Supreme Court by the President---Grant of ex post facto approval by the Cabinet to the filing of Reference amounted to the approval of the same after which raising of objection was not proper and Prime Minister could not be allowed to approbate and reprobate
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