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Petitioner: Syed QAIM ALI SHAH VS Respondent: ATTA MUHAMMAD MURRI and 6 others
Court Name: Sindh High Court Judge(s): Nasir Aslam Zahid, Shoukat Hussain Zubedi Title: Syed QAIM ALI SHAH vs ATTA MUHAMMAD MURRI and 6 others Case No.: Constitutional Petition No,2592 of 1992 Date of Judgment:1993-03-17 Reported As: 1993 MLD 1127 Result: orders allow
JUDGMENT
JUDGMENT ' NASIR ASLAM ZAHID, CJ.---This petition has been filed by the petitioner, who is the President of Pakistan People's Party, Sindh, an elected member of the Sindh Provincial Assembly and also the leader of the Opposition in the Assembly. In the general elections held in October, 1990, respondent No,3 was elected as a member Sindh Assembly from Constituency P.S. 82 Karachi Central, respondent No,4 from P.S. 96 Karachi East; respondent No,5 from P.S. 74 Karachi West; respondent No,6 from P.S. 75 Karachi West and respondent No,7 from P.S. 99 Karachi East. According to the petitioner, on 27-6-1992 all the 28 members of the Sindh Assembly belonging to the Mohajir Qaumi Movement (MQM) who called themselves "Haq Parast Group" tendered their resignations from membership of the Sindh Assembly and these 28 included respondents Nos.3 to 7. According to the petition, the fact of the resignation by the 28 members of MQM was reported in almost all the daily newspapers and was not contradicted by the private respondents or any other concerned person. According to the memo. of petition, in consequence of the said resignations, seats in the Sindh Assembly held by respondents Nos.3 to 7 had fallen vacant and since Mr. Abdul Razique Khan, who was the Speaker of the Sindh Assembly, had also tendered his resignation, Mr. Atta Marri (respondent No,1), who is the Deputy Speaker of the Sindh Assembly started functioning as the Acting Speaker. It is further stated in the memo, of petition that, with a view to satisfying himself about the genuineness of the resignations, respondent No,1 issued notices to all the 28 members of the Haq Parast Group who had tendered their resignations and invited them to contact him or confirm their resignations. It is further averred that, out of the said 28 members, only four members, namely, M/s. Ahmed Salim Siddiqi, Abid Sharif, Muhammad Irshad and Muhammad Salim, disowned and challenged their resignations and reportedly sent representations and/or met
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respondent No,1 and informed him that they had not tendered any resignation and these four members announced that they belonged to MQM (Haqiqi) and later started attending proceedings of the ,Sindh Assembly which was strongly protested against by the petitioner. According to the petitioner, with the exception of the said four members of MQM (Haqiqi), no other member of the Haq Parast Group in the Sindh Assembly, including respondents Nos.3 to 7, disowned or challenged the resignations tendered by them from their respective seats in the Sindh Assembly and, on the contrary, these members reportedly further confirmed their resignations but still respondent No,1 failed/refused to issue the necessary notifications about their seats falling vacant. According to the petitioner, after several months, respondents Nos.3 to 7 addressed a press conference in the Chief Minister's House and declared that henceforth they would support the present Chief Minister of Sindh and his Government, both inside and outside the Sindh Assembly. According to the petitioner, respondents Nos.3 to 7 even on this occasion did not deny, challenge or disown their resignations from the membership of the Sindh Assembly. It is further averred that on 25-7-1992, respondent No,1 issued notifications that he had accepted resignations of only ten Haq Parast Members in the Sindh Assembly and their seats had fallen vacant but he did not take any decision or issue any notification about the vacancies in the seats of the Sindh Assembly on account of the resignation of the other members of Haq Parast Group including respondents Nos.3 to 7. The petitioner has prayed in this Constitutional petition that respondents Nos.3 to 7 be required to show under what authority they claim to hold membership of the Sindh Assembly and to declare that the seats in the Sindh Assembly held by respondents Nos.3 to 7 have fallen vacant on account of the resignations tendered by them and for a direction to respondent No,1 to intimate the Election Commission of Pakistan about the aforesaid vacancy. 2. The petition has been contested by the Deputy/Acting Speaker and the private respondents. We have.heard at length the arguments of Mr. Iqbal Haider, Advocate for the petitioner, Mr. Muhammad Ali Sayeed, Advocate for the Deputy/Acting Speaker and M/s. Mansoor Ahmed Khan and Sharaf Faridi, Advocates for respondents Nos.3 to 7. 3. On behalf of respondent No,1, Mujceb Ahmed son of Muhammad Yousuf, working as Assistant Secretary (Proceedings) in the Secretariat of the Sindh Provincial Assembly, has filed counter- affidavit in which it was admitted that Mr. Atta Muhammad Marri, Deputy Speaker of the Sindh Assembly, was functioning as Acting Speaker of the Assembly. In the counter-affidavit, receipt of 24 letters alleged to be the resignations of 24 members has not been denied. According to the Deputy Speaker, he issued notifications intimating the Election Commission only when he was satisfied that the resignations tendered were genuine and voluntary. As regard respondents Nos.6 and 7, Abdus Salam Shaikh and Aijaz Ahmed Khan, it was stated in the counter-affidavit on behalf of the Acting Speaker that they had appeared before him on 1-8-1992 and gave statements in writing that they had never resigned voluntarily and were forced to sign the letters of resignations which should not be accepted and that they continue to remain M.PAs. As regards respondents Nos.3 to 5, it was averreti that they also appeared before the Acting Speaker on 18-10-1992 and gave similar statements in writing. It was pointed out that the Acting Speaker was out of Pakistan from 18-9- 1992 and attended the office after his return from abroad on 18-10-1992 when the said respondents appeared before him. According to the Acting Speaker, the abnormal circumstances and the antecedent events in the back-drop of which the alleged resignations were sent gave room to the strong possibility that the said resignations were not voluntary but had either been coercively extracted or forged and this possibility was further confirmed from the fact that several members disowned the said resignations and others were coming forward to confirm the same. According to the Acting Speaker, in the extraordinary circumstances under which the said resignations were received and the subsequent repudiations of a large number of such resignations, the Acting Speaker was perfectly justified in his handling of the matter and in the degree of care and
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circumspection exercised by him. According to the Acting Speaker, the resignations involved in this case were totally different from the normal resignations received from the legislators. 4. Respondents Nos.3, 4 and 5 have filed more or less identical counter-affidavits. In their counter- affidavits, it has been averred that blank resignations had been taken from them under circumstances of coercion, undue influence and pressure and as security for allegiance/loyality for the Party which had given tickets to the Haq Parast Members. According to these three respondents, the circumstances in which the resignations could be filled up and sent were not for which the blank resignations had been placed in the hands of the Party and no authority had been given to the Party to send or deliver such resignations to the Acting Speaker. According to the said respondents, the resignations were not acted upon and remained in abeyance until direct confirmation deemed necessary by the Acting Speaker. According to the respondents Nos.3, 4 and 5, upon reappearance, the Haq Parast respondents coming out of 'Rooposhi' attended the Session of the Sindh Provincial Assembly on 18-10-1992, where they were presented before the Acting Speaker, who ascertained whether their resignations received by the Speaker were admitted to which the respondents categorically denied stating that the same had been obtained by force, coercion and without their free will. It is further averred that on appearing in the Provincial Assembly at the first instance the aforesaid circumstances were stated by them in writing which the Acting Speaker ,ascertained and accepted and only then passed ing the respondents Nos.3, 4 and 5 to attend the Assembly. 5. Respondents Nos.6 and 7, Abdus Salam Shaikh and Aijaz Ahmed Khan, have also filed their separate counter-affidavits. In his counter-affidavit, respondent No,6, Abdus Salam Shaikh, has also stated that the resignation had been obtained from him under duress,, pressure and coercion by the Sector Incharge of M.Q.M., Baldia Town, and others and that he had not personally sent the said resignation to the Speaker. It is also mentioned that earlier, also, on two occasions, resignations had been obtained in the same manner by the party. It is stated that, after obtaining his resignation in the end of June,'1992, he was asked not to move out from his house and was threatened that in case he moved out of his house and informed any one that his resignation had been obtained under duress, threat or coercion, his family members would be killed. It is further averred that, prior to'15-7-1992, he managed to get in touch with the concerned authorities in order to provide him protection and, after having got their assurance, he went to the Sindh Assembly and met the Deputy Speaker and informed him all the facts as to how his so-called resignation had been obtained and his appearance before the Deputy Speaker on 15-7-1992 was duly published in almost all the newspapers and he has filed photo copy of the said news in the issue dated 16-7- 1992 of daily "Jang." He has further stated that he had not publicly given details of the circumstances then in which his so-called resignation had been obtained and sent to the Speaker. It is further averred in the counter-affidavit by respondent No,6 that on 15-7-1992, he had also given in writing tb the Deputy Speaker that he had not voluntarily resigned from the membership of the Sindh Assembly and that he had no intention to resign from the Assembly. According to him, as the Session of the Assembly was to be held from 2-8-1992, he again addressed a letter dated 1-8-1992 to the Speaker in which he had clearly stated that he had not resigned and in case any so-called resignation was received by Acting Speaker it should not be accepted unless he was personally present and confirm the same. According to the respondent No,6, on 1-8-1992, respondent No,1, after having been satisfied that the so-called resignation was neither genuine nor voluntary, came to the conclusion that the same was not valid. Copy of the common order, dated 1-8-1992 of the Acting Speaker in respect of respondents Nos.6 and 7 has been filed alongwith the counter- affidavits. It was further averred that when he and respondent No,7 had attended Sindh Assembly Session on 2-8-1992 and thereafter also none from the opposition including the petitioner ever objected to his attending the Sindh Assembly Session although in case of respondents Nos. 3, 4
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and 5 who came to attend the Sindh Assembly Session on 18-10-1992, petitioner as well as other P.DA. Members objected to their attending .the session as Members and such news appeared in the next day's newspapers. In the circumstances, according to respondent No,6, the petitioner is estopped from challenging his membership. 6. Respondent No,7, Aijaz Ahmed Khan, has filed a similar counter-affidavit as filed by respondent No,6. However, he has stated that, after the public appearance by respondent No,6 on 15-7-1992, Aijaz Ahmed Khan also managed to get in touch with the concerned authorities to provide him protection and after having got their assurance he went to the Sindh Assembly and met the Deputy Speaker and informed him of the facts as to how his so-called resignation was obtained and his appearance before the Deputy Speaker was also published in almost all the daily newspapers. It is further averred by respondent No,7 that as the session of the Assembly was to beheld from 2-8-1992, he addressed a letter to the Speaker in which he stated that he did not wish to resign from the membership and he was still a member and would continue to be a member of the Sindh Assembly and, on 1-8-1992, respondent No,1 after having satisfied himself that the so- called resignation is neither genuine nor voluntary, came to the conclusion that the same was not valid. Copy of the order, dated 1-8-1992 passed by respondent No,1 in respect of the resignation of respondent No,7 has also been filed alongwith his counter-affidavit. 7. The petitioner has filed rejoinder affidavits, one in reply to the counter-affidavit on behalf of Deputy Speaker, the other in reply to the counter-affidavits filed by respondents Nos.3, 4 and 5 and two other rejoinders in reply to the counter-affidavits filed by respondents Nos.6 and 7, in which the various assertions made in favour of respondents Nos.3 to 7 have been denied. Alongwith the rejoinders, copies of various reports published in the newspapers in Karachi have been filed. According to the petitioner, the resignations had been tendered voluntarily but, later on, the private respondents and the Government engaged in horse-trading and respondent No,1 delayed the issuance of the notifications in respect of the Haq Parast Members and took decisions only when it was confirmed that the member would support the Government or not and, in case any member agreed to support the Government, orders Were passed in his favour not giving effect to his resignation and, in other cases, where the members refused to support the Government, notifications were issued giving effect to their resignations. 8. The case of the petitioner is that the resignations dated 28-6-1992, tendered by .respondents Nos.3 to 7 reached the Deputy/Acting Speaker, the competent authority, a day or two later and the moment the resignations reached the competent authority, the same became effective and thereupon their seats became vacant. For this proposition, reference had been made to Article 64(1) of the Constitution, which reads as follows:--- "64(1). A member of Majlis-e-Shoora (Parliament) may, by writing under his hand addressed to the Speaker or, as the case may be, the Chairman, resign his seat and thereupon his seat shall become vacant." ' Under Article 127 of the Constitution, reference to several Articles mentioned therein including Article 64 to the Parliament shall be read as a reference to the Provincial Assembly. The aforesaid Article of the Constitution has been interpreted by the Supreme Court in the case of Mira Tahir Baig v. Kausar Ali Shah PLD 1976 SC 504. In the said judgment, it was held that where genuineness or validity of resignation is challenged and it is ex facie doubtful, the Speaker is under duty to enquire into the matter before allowing the resignation to take effect. According to the Supreme Court, the provision in Article 64 giving automatic effect to the resignation once it reaches the Speaker implies the resignation to be genuine and voluntary. A Division Bench of this Court in the case of Muhammad Naeem Akhtar v. The Speaker, Sindh Provincial Assembly 1992 CLC 2043 following the judgment of the Supreme Court had observed as follows:--
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"Clause (1) of Article 64 of our Constitution does not require acceptance of the resignation by the Speaker for the resignation to become effective and as a consequence the seat becoming vacant but from this it does not follow that the Speaker has no role at all to play in this exercise of resignations. ' In case the Speaker has any doubts about the genuineness or voluntary nature of the resignation received by him, or he receives information from the concerned member or on his behalf that the resignation is not genuine or has not been given voluntarily, the Speaker is then required to hold an inquiry to satisfy himself as to the genuineness or voluntary nature of the resignation and if in such inquiry he finds that the resignation is not genuine or voluntary, he will record such finding, in which event resignation will become ineffective and the member will continue to retain his seat." 9. The Deputy Speaker, in the affidavit filed on his behalf, has mentioned about the abnormal conditions in the province at the time the resignations were received at end of June, 1992, and the fact that 24 resignations of MQM members of the Assembly, all dated 28-6-1992, had reached the Speaker en-bloc and, therefore, he doubted the genuineness of the said resignations and decided to hold an enquiry and gave statements in the Press that the members, whose resignations had been received, should approach the Acting Speaker or see him to confirm the resignations. In the circumstances, we are of the view that the Acting Speaker did not act illegally or against the Constitution in not giving effect to the resignations immediately by issuance of notifications that the seats had fallen vacant. His decision to hold an enquiry, in the circumstances, can also not be challenged. The contention on behalf of the petitioner that the resignations of respondents Nos.3 to 7 should have been given immediate effect by issuance of required notifications, therefore, cannot be accepted. 10. The other contention raised on behalf of the petitioner was that the decision on the resignations had to be taken immediately and, as such, even if an inquiry was being conducted, the same should have been finalised within a few days. In this context, reference was made to Article 224(4) of the Constitution, which reads as follows:--- "224(4). When, except by dissolution of the National Assembly or a Provincial Assembly, a seat in any such Assembly has become vacant not later than one hundred and twenty days before the term of that Assembly is due to expire, an election to fill the seat shall be held within sixty days from the occurrence of the vacancy." ' Emphasis was on the period of 60 days provided for holding the bye-elections, that is, within 60 days from the occurrence of the vacancy. According to Mr. Iqbal Haider, the minimum time during which bye-election can be held from the date of the initial notifications announcing bye-election is about 36 to 40 days and as it is a requirement of clause (4) of Article 224 that bye-elections are to be held within 60 days from the occurrence of the vacancy, the exercise to be conducted by the Speaker in the nature of an inquiry to determine the genuineness or voluntary nature of the resignation which reaches the Speaker must be finalised within a few days. According to learned counsel, in the present case, the inquiry was delayed for months and this was for the ulterior motive of winning over the resigning members to the side of the Government. According to the learned counsel, seats of those members were declared vacant and required notifications were issued once it was found that those members were firm to stick to their resignations, but those who were pliable, decision in respect of such members remained pending till such time they were won- over and, according to Mr. lqbal Haider, this is established from the admitted fact that respondents Nos.3 to 7 have joined the Government as Ministers or Advisers or have supported the Government. 11. On behalf of the Deputy Speaker and private respondents, it was submitted that no time limit could be placed on the Speaker to complete the enquiry and the time taken in such enquiry depends on the facts and circumstances, prevailing at the relevant time. It was submitted that the times were abnormal; law and order situation was so bad that help of the Army had to be obtained
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by the Sindh Government by making a request under Article 147 of the Constitution and it is with the help of the Army that gradually the law and order situation improved. Reference was also made to the infighting between the rival groups in M.Q.M. According to learned counsel for the Acting Speaker and the private respondents, respondents Nos.3 to 7 and other members of M.Q.M. who had resigned, had to go underground on account of the Army action and threat of physical harm from the rival faction of M.Q.M. and, in circumstances, as soon as it was possible for respondents Nos.3 to 7, they came out of their hidirg and then approached the Acting Speaker. It was submitted that, in the circumstances, the time taken by the Acting Speaker to finalise decisions in his inquiry in respect of the resignations alleged to have been given by respondents Nos.3 to 7 cannot be questioned. 12. We are of the view, that time within which an inquiry is to be conducted which is necessary to resolve the doubt in respect of the genuineness and voluntary nature of the resginations received by the Speaker is not fixed but from this it does not follow that the inquiry can be prolonged for a long period. Article 224(4) of the Constitution requires bye-elections to take place within 60 days of occurrence of vacancy. It has also been confirmed that the entire exercise of holding bye-election starting from the issuance of the initial notification takes about 36 to 40 days. If the Constitutional mandate is to be fulfilled, the inquiry is required to be completed within a matter of about 20 days, so that in case it is found that the resignation is genuine and is to be given effect, bye-election can be held within 60 days of occurrence of vacancy and the vacancy will be deemed to have occurred on the date the resignation reaches the Speaker. No doubt, there can be circumstances, where it may be absolutely impossible to complete the inquiry within 20 days but then it must be established that the inquiry could not possibly have been completed within about 20 days to enable the bye-elections to be held within 60 days of the occurrence of the vacancy. 13. We may also refer to para. (g) of the order passed in the case of Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly 1992 CLC 2043, where it was held that irthe petitioners (resigning members) wanted to back down on or retract from their resignations, they should have given a public statement or written a letter to the Speaker to that effect declaring that the resignations are no longer valid and should not be acted upon. In the said judgment, it had been noticed that this was not done by the petitioners. It was noted that the resignations in that case were submitted to the office of the Speaker on 19-6-1991 and news about the resignations was flashed in the newspapers the same day or next day and the petitioners became aware of the same but did not inform the Speaker immediately about any defects in the resignation letters or that the same were not to be acted upon. 14. Great responsibility is also placed on the member whose resignation has reached the Speaker, the news whereof has been made public through the news media. If he wants to challenge the validity of his resignation on the ground that it was either not his resignation or that the same had been obtained under duress or coercion, he is required to either contact the Speaker immediately informing him about the defects in the resignation letter or if it is not possible for him to contact the Speaker to give a public statement pointing out the defects in the resignation letter. 15. The case of respondents Nos.3 to 7 is that they had given their resignations under duress and coercion and immediately after giving resignations they had to go underground to avoid danger to their lives. No case has been made out that it was not possible for respondents Nos.3 to 7 to contact the Acting Speaker or send an intimation to him through someone else informing him about the defects in the resignation letters. It is also not the case of the respondents that they were hiding at a place or places where newspapers or other facilities of Radio or TV were not available. It has, therefore, to be assumed that immediately the resignations reached the Acting Speaker and the news of this en bloc resignations was reported on front pages of practically all the newspapers of Karachi with big headlines, the respondents Nos.3 to 7 became aware that their resignations had
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reached the Acting Speaker. In case the said resignations had not been given voluntarily, it was necessary for them to have informed the Speaker about such defects immediately or as soon as possible. As observed, no case has been made out that the message could not have been sent to the Acting Speaker about the coercion and duress under which, according to the private respondents, the said resignations were obtained from them. 16. In the case of respondents Nos.3, 4 and 5…
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