Law: Constitution of Pakistan (1956)

Section: 41(2),37(1),37(2),37(5),181

(a) Practice-   Counter-affidavit to writ petition-New plea to be raised by amendment in precise words-Plea raised, by the way, disallowed.   (b) Constitution of Pakistan (1956)   Art. 41 (2)-Omission to conform to formality of expressing order in President's name does not nullify order.   According to Art. 41 (2), Constitution of Pakistan (1956) if an order or instrument is expressed to be in the name of the President and is duly authenticated, then it cannot be called in question in any Court on the ground that it is not made or executed by the President. There is no other consequence of the formality. It can be questioned on other grounds such as the non-fulfillment of a condition precedent, because conformity to the form gives immunity against one ground of attack only. If the requirements are not fulfilled then the protection is lost but the omission does not nullify the order or instrument.   Art. 41 (2) is only directory in nature and the importance of form is not very great.   King Emperor v. Sibnath A I R 1945 P C 156 ; J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. and others v. Emperor A I R 1947 F C 38 ; Dattatraya Moreshwar v. The State of Bombay and others A I R 1952 S C 181 , Abdul Aziz v. Pakistan Writ Petition No. 356 of 1956 (unreported) and Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and others A I R 1954 S C 236 ref.   (c) Constitution of Pakistan (1956), Art. 37 (1) (2)-"Aid" "Advice"-Distinction-Courts can inquire into matters falling under "aid".   The function of the Cabinet is twofold according to clause (1) of Article 37 of the Constitution, namely to `aid' and `advise', and according to clause (2), the Courts are debarred from inquiring into "whether any and, if so, what advice" was tendered by the Cabinet to the President. There is no bar to an inquiry into the factum, nature and scope of `aid' rendered by the Cabinet to the President. A11 that is accomplished by the Cabinet itself should fall ' under the head `aid' as compared with suggestions and opinions given to the President which should fall in the class of…