TAHIR BEG Versus KAUSAR ALI SHAH

1. MUHAMMAD GUL, J.- These two appeals between the same parties -proceed on the same facts and raise a common question of law as to the interpretation of Article 64 read with Article 127 of the Constitution.

2. Mirza Tabir Beg appellant in both the appeals was elected to the Punjab Trovincial Assembly on the Pakistan People's Party ticket, from Constituency No. 78 Lahore VIII in the general election held in December 1970. On 16th 'February 1974 late in the afternoon, Syed Kausar Ali Shah respondent who is President of the Lahore Branch of Pakistan People's Party handed to the Speaker of the Punjab Legislative Assembly, what purported to be the appellant's resignation from the membership of the Assembly. It was addressed to the Speaker written and signed by the appellant and bore the same date. The Speaker made the following endorsement and marked it to the Secretary A .of the Assembly :-

3. "Received today. The Election Commission may be informed accord ingly."

4. The same evening a notification in the Gazette Extraordinary was issued in the following terms :-

5. "Mirza Tabir Bea. Member Provincial Assembly of the Punjab elected from Provincial Constituency No. PP-78 Lahore-VIII has tendered his resignation to the Speaker of the Provincial Assembly of the Punjab from his seat of the Provincial Assembly of the Punjab on 16th February, 1974."

6. A telegram was also issued informing the Chief Election Commissioner (CEC) of the appellant's resignation. On the following day a post copy of the telegram along with a copy of the resignation was also sent to CEC by the Assembly's Secretariat.

7. It appears that a report of an incident relating to the reported signing of the resignation by the appellant, was lodged by one Mirza Azizullah Beg, a cousin of the appellant, at 6-30 P. M. on the 16th February 1974 at P. S. Gulberg, Lahore. It was stated therein that the appellant had been kidnapped earlier in the day by armed men and had been taken to the house of Kausar Ali Shah to force the appellant to sign his resignation from the Provincial Assembly. On the 17th February 1974, the appellant himself sent telegram to the Speaker, the Prime Minister, the Governor and certain other authorities complaining that he has been made to sign his resignation from the member ship of the Assembly "on pistol-point in the house of a P. P. P. dignatory" The Speaker does not seem to have taken any action on the appellant's telegram, apart from forwarding the same to the C. E. C. in continuance of the earlier communication.

8. On 21-2-1974 the appellant filed Writ Petition No. 286 of 1974 alleging that he was kidnapped from the offce of the Union Council, Guiberg at about 10-30 A. M. on 16-2-1974 by a number of hoodlums and taken to the house of Syed Kausar Ali Shah where the appellant was made to sign his resignation under coercion on pistol-point. He therefore sought a declaration that his resignation was of no legal effect and injunction to restrain the Speaker and C. E. C. from giving effect to it. An order requiring maintenance of status quo ante was also issued. The writ petition was ultimately dismissed by a Division Bench on 16-5-1971 on the ground that under law "no duty is cast on the Speaker to satisfy himself about the genuineness, proper execution or legal effect of a resignation or to determine a dispute concerning it" and that power in that behalf solely vested in the C. E. C. who had till then taken no action in the matter. In support of their conclusions, the learned Judges purported to rely on this Court's judgment in A. K. Fazalul Qadir Chaudhry, v. Syed Shah Nawaz (PLD1966SC105). Accordingly, the learned Judges held the writ petition to be incompetent against the Speaker and premature against C. E. C. as he had made no order adverse to the appellant till then.

9. On 17th May 1974 that is to say on the day following the dismissal of the writ petition, the appellant made the application to the C. E. C. repeating his allegations made earlier in his Writ Petition No. 286 of 1974 and prayed that his resignation be ignored and that the speaker be informed that the appellant continued to be a member of the Provincial Assembly. The application also referred to the High Court's judgment in Writ Petition No. 286 of 1974 according to which C. E. C. alone was competent to deter mine the genuineness and validity of the resignation and to declare the resulting vacancy, if any. Apparently, in response to a communication by the C. E. C. following the above application by the appellant, the Speaker made a formal reference on 7-6-1974, setting out the events in chronological order. It was specifically stated in reference that the resignation was brought by Syed Kausar Ali Shah. The concluding paragraph of the letter read :-

10. "The above facts are referred for such action as may be deemed necessary under the Constitution of the Islamic Republic of Pakistan."

11. It was conceded before C. E. C. by all concerned that this was a proper reference by the Speaker to the C. E. C. to enable him to take cognizance in the matter. Accordingly, the latter proceeded to record evidence for and against the allegations made by the appellant.

12. It appears in the meantime the session of the Provincial Assembly having been called, the appellant on the premise that he continued to be a member, applied for leave of the absence which was refused by the Speaker after taking legal advice, on the ground that having resigned his membership grant of any leave to him, was out of question.

13. After leave was refused to the appellant, one Mr. Abdul Qayyum Butt M. P. A. moved privilege motion in the Assembly on 24-5-1974, urging that appellant continued to be a member of the Assembly but was being precluded from the proceedings of the Assembly on the basis of a resignation which was obtained by coercion and threat of violence. This according to the mover, constituted a serious breach of privilege of not only of the member concerned but of the entire House. The motion was admitted by the Speaker and referred to the Privileges Committee. The Committee after record ing evidence of the mover, and nine other witnesses including the appellant and Chaudhry Muhammad Hanif M. P. A., reported back that the appellant's resignation was obtained by coercion and that the C. E. C. so far not having notified the vacancy for by election, the Committee "was unanimously of the view that until such notification is issued Mirza Tahir Beg continues to be a member of the Provincial Assembly . . . . ." and therefore the appellant be allowed to take part in the proceedings of the Assembly. The report of the Privileges Committee after debate by the Provincial Assembly was unanimously adopted on 27-5-1974. As a result, the appellant was not only allowed to take seat in the Assembly but the period during which he had been precluded from the proceedings of the Assembly, was treated as period of leave.

14. By this favourable turn of events, the appellant changed his stand before C. E. C. and characterised the proceedings before him as coram-non-jucdice on the ground that there was no proper reference under clause (2) of Article 63 of the Constitution. Curiously enough the Speaker also resiled from stand earlier taken on his behalf and it was urged that letter dated 7.6-1974 did not constitute a valid reference to CEC by the Speaker under Article 63(2).

15. In the above circumstances CEC by order dated 24-12-1974 was cons trained to terminate the proceedings before him as having become infructuous and observed "that it had involved unnecessary waste of time of all concerned." Incidentally, the learned CEC also opined that on the compara tive reading of Articles 63 and 64 of the Constitution, the question as to whether the appellant's resignation was voluntary or obtained under threat of physical violence by Syed Kausar Ali Shah or somebody else was for the Speaker to enquire and that in the instant case his own function was confined to arranging for bye-election once it was notified in the official Gazette that a vacancy had occurred otherwise than under Article 63 of the Constitution.

16. Syed Kausar Ali Shah being aggrieved by the above order of CEC filed Writ Petition No. 258 of 1975. The main relief claimed by him was that the Speaker and CEC be directed to prepare programme for holding of bye-election -following the resignation by the appellant. This writ petition came up for hearing before the same Bench (comprising Ataullah Sajjad and S. Rahman, JJ) who had earlier dismissed Writ Petition No. 286 of 1974. The learned Judges took the view that the notification by the Speaker on 16-2-1974 declaring the vacancy caused by the resignation of the appellant "remains unsuperseded" and that the Speaker having informed the CEC about the vacancy, the latter was under a "constitutional duty" to arrange for bye election to fill the vacancy. The notification in the Gazette, Extraordinary issued on 16-2-1974 was treated by the learned Judges "as a clear mandate from the Speaker to the Chief Election Commissioner which had never been revoked or withdrawn." About the Privilege Motion adopted by the Assembly, the learned Judges took the view that it was Speaker's (personal) decision which was decisive in the matter and that in his communication to the CEC, be referred the Privilege Motion "as a mere fact without subscribing to it as the Speaker." Accordingly, a direction was issued requiring the CEC "to perform his legal duty on the basis of vacancy having occurred." The judgment is dated 24-6-1975.

17. Pursuant to the above direction of the High Court the CEC after fresh notice to all concerned, including Syed Kausar Ali Shah, on 7th July 1975 while adhereing to the view expressed by him earlier, about his want of competence to undertake the enquiry as to the genuineness or validity of the appellant's resignation and for that matter to enquire whether he continued to remain a member of the Assembly, he nevertheless, "in compliance with the High Court's verdict" thought that the only course open to him was to notify the programme for the bye-election from the Constitutency from which the appellant had been elected during the 1970 general Election. The appellant's plea that he was moving an appeal against the order of the High ,Court (in Writ Petition No. 258 of 1975) and therefore the programme for holding of the bye-election be deferred, was refused.

18. The appellant moved Civil Petition No. 91-R of 1975 against the High Court judgment dated 24-6-1975. Leave having been granted, this was converted into C. A. No 66 of 1975. A prayer for the suspension of the order of the CEC dated 7-7-1975 to give effect to the High Court's judgment -dated 24-6-1975 was however, refused.

19. The prayer for the suspension of the order of CEC to notify the programme for holding the bye-election having thus been refused, the appellant -was obliged to move yet another writ petition (No. 1646 of 1975) in which he complained that CEC had failed to consider and give effect to the Privilege Motion passed by the Assembly on the report of the Privileges Committee that the appellant's resignation was obtained under threat of violence and that be still continued to be a member of the Assembly. It was pleaded that be Assembly's resolution was binding upon the CEC and therefore there was no vacancy which is sought to be filled. The alternative plea raised ,was that the CEC was under a duty to give an independent finding as to -whether there existed any vacancy which in turn depended on the validity of -the appellant's resignation and that CEC had not performed this duty despite -a specific direction by the High Court in Writ Petition No. 286 of 1974. This third writ petition in the series was heard by another Bench (Zakiuddin Pal and Gul Muhammad Khan, JJ.) and dismissed in limine on 29-7-1975, although the learned Judges shared the view of the CEC that the question relating -to genuineness or voluntary nature of the appellant's resignation that the matter not being germane to disqualification of a member did not fall within the purview of Article 63 of the Constitution. The appellant therefore also moved Civil Petition No. 660 of 1975 which has been converted into Civil Appeal No. 67 of 1975.

20. Leave was granted in both the cases because of the conflicting decisio by the two different Benches in the High Court on the relative power of -the Speaker and the Chief Election Commissioner under the Constitution, in the matter of dispute in these two cases and the failure of any competent authority to address itself and to decide the alleged involuntary character of the appellant's resignation.

21. During the pendency of these appeals, a bye-election was held in obedience to the direction issued by the High Court in Writ Petition No. 258 of 1975. Mian Muhammad Riaz has been returned unopposed and therefore he has been impleaded as respondent in these appeals.

22. During the arguments in the appeals lasting four days, it was difficult -to avoid the impression that the parties have been victims of comedy of errors in this feverish litigation between them. Within a space of less than .eighteen months since the beginning of the dispute about resignation of the appellant, three writ petitions were moved before the High Court besides proceedings in this Court and the learned CEC and yet so far, there has been no proper determination of the dispute which is essentially one of fact and lay within a narrow compass, namely the alleged involuntary nature of the resignation. It is indeed a pity, that the parties remained bogged down with the related legal issue namely whether it was for the Speaker or CEC to enquire into the alleged involuntary character of the resignation.

23. The Speaker laboured under the mistaken impression that his duty was ,no more than to merely transmit the resignation to CEC and it was for the latter to do the rest (including the enquiry about the validity of the resigna tion). Apparently, the matter was treated as being germane to a "disqualification suffered by the appellant and falling under Article 63 read with Article 127 of the Constitution. The same view was taken in High Court in Writ a Petitions Nos. 286/74 and 258/75.

24. The learned CEC on the other hand opined that the main dispute between the parties did not fall to be determined by him under Article 63, not being germane to any "disqualification" suffered by the appellant. Nevertheless, in deference to the view taken by the High Court, he reluctantly undertook the enquiry and even heard a number of witnesses. But the proceedings did not fructify into a definitive finding by him, apparently because, as an aftermath of the Privilege Motion adopted by the Assembly, both the appellant and the Speaker turned round to say that there was no proper reference before the CEC under Article 63 of the Constitution. Accordingly, the learned CEC was constrained to terminate the proceedings before him, which he did with regret.

25. It is a matter of some satisfaction to observe that during the course of arguments in the appeals, learned counsel representing various parties conceded and rightly so, that on a proper interpretation of Articles 63 and 64 it D was for the Speaker to enquire and determine the genuineness or voluntary character of the resignation. Articles 63 and 64 of the Constitution are in these terms

26. "63.-(1) A person shall be disqualified from being elected or chosen as, and from being, a member of Parliament, if-

(a) he is of unsound mind and has been so declared by a competent Court ; or

(b) he is an undischarged insolvent ; or

(c) he ceases to be a citizen of Pakistan, or acquires the citizenship of a foreign State ; or

(d) he hold an office of profit in the service of Pakistan other than an, office declared by law not to disqualify its holder ; or

(e) he is so disqualified by Act of Parliament.

(2) If any question arises whether a member of Parliament has become: disqualified from being a member, the Speaker or. as the case may be, the Chairman shall refer the question to the Chief Election Com missioner and, if the Chief Election Commissioner is of the opinion that the member has become disqualified, he shall cease to be a member and his seat shall become vacant.

27. 64.-(1) A member of 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.

(2) A House may declare the seat of a member vacant if, without leave of the House, he remains absent for forty consecutive days of its sittings."

28. The opening words of clause (1) of Article 63 leave no manner of doubt that it refers to both pre-election and post-election disqualifications resulting from or suffered as a legal consequence of a member's own act or omission or other supervening relevant circumstance. It would be entirely a misnomer to equate resignation of a member with the "disqualification" suffered by him under Article 63. It can scarcely be controverted that a resigning member may again seek re-election from the same constituency. This some time happens when a member resigns on question of principle, but at the same time seeks to vindicate the principle. The matter is therefore referred to the electorate, which in a modern democracy is the final arbiter. If on the other hand a member has suffered disqualification under Article 63 he will be disqualitied from seeking election so long as he remains under the disqualification.)

29. Therefore, any question relating to resignation by a member must be treated as falling outside the ambit of Article 63 and inevitably will fall to be dealt with by the Speaker to whom the resignation is addressed under Article 64. In the instant case, the Speaker if I may say so with respect, treated the whole matter casually. Apart from the mechanical endorsement on the resignation brought to him by Syed Kauear Ali Shah, he remained insensitive to the extraordinary circumstances surrounding the resignation. The appellant is a resident of Lahore and in the normal course should have himself banded over his resignation to the Speaker, or should have despacthed it to the Speaker through ordinary mail. No question appear to have been asked from Syed Kausar Ali Shah as to bow be secured. the resignation and whether he was authorised to present it before the Speaker. Ordinarily, this should have raised curiosity if not suspicion in the mind of the Speaker.

30. Needless to say that the Speaker in a parliamentary form of Government holds an office of highest distinction and has the sole responsibility cast on him of maintaining the prestige and the dignity of the House and each and every member composing the House. It is precisely for this reason that the Constitution has ordained that a resignation by a member is effective only when it is "addressed" to the Speaker: it was not intended to be an idle formality. To relinquish a parliamentary seat by resignation is a grave and:' a solemn act. By and large our political institutions are fashioned on the pattern of those obtaining in England and it is a settled principle of parlia mentary law in England that a member of Parliament after he is duly chosen, cannot relinquish his seat by unilaterally resigning his membership. In order to evade this restriction a member who wishes to relinquish his seat, accepts office under the Crown which legally vacates his seat. This is enough to underline the gravity of the matter. (See May's Parliamentary Practice, 18th Edn., p. 45).

31. The Speaker in the instant case laboured under the false motion that he need not look beyond the surface of the document presented to him by Syed Kausar Ali Shah, particularly when the appellant did not disown his signature on it. Unfortunately, this stand was endorsed by the High Court while dismissing Writ Petition No. 286/74 moved by the appellant and in support of its decision, the High Court relied on this Court's judgment in A.K. Fazalul Qadir Chuudhry v. Shah Nawaz. In that case a member of the National Assembly addressed his resignation to the President instead of the Speaker. Like the appellant herein, he did not deny his signature on the resignation. Later, his resignation was forwarded by the President to the Speaker who acting on it declared the seat of the resigning member vacant resulting in a bye election. With reference to Article 107 of the 1962 Constitution which is in pari materia with Article 64 of the present Constitution. But what the learned Judges missed was that it was held by this Court that the communication to the Speaker "is an essential ingredient of the application of Article 107 of the Constitution". The Court went on to observe in that case "that the transmission of the resignation to the Speaker in the absence of express authorisation by the member concerned was not valid" and therefore the notification by the Speaker declaring the vacancy and the resulting bye. election were set aside with one sweep as being without lawful authority.

32. Mr. S. M. Zafar, learned counsel for the appellant also cited two cases from Indian jurisdiction viz: Surat Singh Yadav v. Sudama Prasad Goswarni (A I R 1965 All. 536) and Thankamma v. The Hon' ble Speaker (A I R 1952 Trav. Co. 166) in support of his argument that the resignation from a Legislature in order to be effective should not only be written with the intention of sending it to the Speaker but should also be put in course of transmission so that it reaches the Speaker. It was ruled in these two cases that in the case of dispute as to the genuineness or voluntary nature of the resignation, the Speaker is the appropriate authority whose "satisfaction" is necessary before it is given effect to. It is true that the precedent cases contain references to certain Rules of Procedure of the State Assembly concerned in relation to the action taken on resignation by a member. Keeping in view the solemn and grave nature of the transaction, it would, in my opinion, be advantageous to include appropriate rules in the Rules of Procedure of the Assembly, as to the manner in which a resignation by a member shall be dealt with. But absence of any such rule in the instant case, would not make any difference for it is implicit in the wording of Article 64 that the resignation addressed to the Speaker shall take effect. if he is satisfied as to its genuineness and validity. That in my opinion is the only reasonable interpretation. In considering the question, as observed by .Chief Justice Marshall in McCulloch v. Maryland ((1819) 4 Wh. 316) :-

33. "We must never forget that it is a Constitution we are exprounding."

34. Similarly the Privy Council while interpreting the Canadian Constitution observed in British Coal Corporation v. The King (A I R 1935 P C 158v) :-

35. "In interpreting a constituent or organic statute, that construction most beneficial to the widest amplitude of its powers must be adopted."

36. A fortiori in a case where the genuineness or validity, of resignation is challenged or ex facie is doubtful, the Speaker shall be under a duty to enquire; into the matter, before he allows the resignation to take effect. This is notwithstanding that the resignation takes effect automatically once it reaches the Speaker for it is implicit in the provision that the resignation is genuine and voluntary and was intended to reach the Speaker. This interpretation accords with the dictates of justice, equity and good conscience. The Courts, have always presumed the existence of such implicit power in the appropriate authority. See Craies on Statute Law, 6th Edition, page 111, under the caption "Implication". Where an enabling or remedial statute omit details, the treatise mentioned numerous cases in which omission relating to matters of procedure were supplied by the rule of liberal construction. Similarly, in Article 168 under the caption "Implications" in the Statutory Construction by Crawford, 1940, it is stated :-

37. "The implications and intendments arising from the language of a statute are as much a part of it as if they had been expressed . . . . . . . . One may find numerous situations where statutes have extended by implication. Thus, a statutory grant of a power, privilege or property carries with it by implication everything necessary to its enjoyment or exercise."

38. On the above analysis therefore, I have no doubt in my mind that Speaker had the right and duty under the Constitution to satisfy himself as to the, genuineness and the validity of the resignation by a member, before it is allowed to take effect. As a necessary corollary of that, the Speaker will have to make proper enquiry, if there appears anything tending to create any doubt with regard thereto. What will be the magnitude of the enquiry or whether, in a particular case, any such enquiry will at all be necessary, will depend on the facts of each case and it is not possible nor even desirable to lay down a criterion for general application. For example, if in the instant case, the appellant had himself appeared and presented his resignation to the Speaker and there was nothing to show that it was involuntary, then there is hardly any need for an enquiry. If on the other hand the resignation is not presented personally, but is sent through a massenger, as in the instant case, then Speaker will have to further satisfy himself that the transmission is by an authorized person. If for instance, a resignation, otherwise complete, but is stolen from the drawer of the member by another person who actually, presents it to the Speaker, it will not be ineffective for the purpose of Article 64. In the case of Syed Shah Nawaz noticed already, one of the defects which had rendered the resignation ineffective was that the then President who actually transmitted the resignation to the Speaker had no, authority from Syed Shah Nawaz to do so.

39. Mr. Mumtaz Hassan, learned counsel for Syed Kausar Ali Shah and Mian Muhammad Riaz did not seriously dispute the propositions adumberated above. He nevertheless argued that there was no dispute about the genuineness of the resignation by the appellant and therefore once it reached Speaker to whom it was addressed it took effect automatically, not being subject to any acceptance by the Speaker. Learned counsel laid emphasis upon the words "and thereupon his seat shall become vacant" in Article 64 and stressed that the fact that the Speaker forwarded the resignation to the CEC showed that he consciously treated it as valid or else he would not have forwarded it to the CEC which obviously was for arranging bye-election. According to learned counsel the Speaker had done all that the Constitution required him to do and by the time the appellant's telegram reached him on, the 17th February 1974 he had become funerus officio and no longer in a -position to reopen the matter for enquiry. The argument conveniently overlooks the fact that under the Constitution as interpreted in the earlier part of this judgment, the resignation could not have taken effect unless it was voluntary and intended to reach the Speaker in a manner chosen by the appellant himself. There is nothing whatever, to show that the Speaker had satisfied himself about either of two conditions, and therefore failed to do what he was required by law and the Constitution as interpreted above, to do. Thus there was no question of his becoming functus officio.

40. The next limb of argument addressed by learned counsel for the appellant was that the report of the Privilege Committee dated 23-5-1974 made after proper enquiry having merged in the Privilege Motion unanimously adopted by the Provincial Assembly on 24-5-1974 become sacrosanct. The argument was that the Privilege Motion was debated in the Assembly and therefore was subject-matter of "internal proceedings" relating to the proper business of the Assembly which having regard to the provisions of section 69 of the Constitution cannot be called in question before any Court or any other authority. In support of the argument, this Court's judgment in Pakistan v. Ahmad Saeed Kirmani (P L D 1958 S C (Pak.) 397) was cited.

41. In that case, the election of the Speaker of the Provincial Assembly was sought to be declared null and void by the High Court in its writ jurisdiction', on the ground that there was forcible interference with the voting of the two members of the Assembly, whose votes along with the casting vote of the Chairman of the meeting, tilted the balance in favour of the successful candidate. The plea raised in defence by the successful candidate was that apart from the fact that he was validly elected on the basis of the majority votes freely cast, no writ petition lay in the matter because of clause (1) of Article 89 of the 1956 Constitution, which provided that the validity of any proceedings in a Provincial Assembly was not to be _ questioned in any Court. The High Court, on merits, found in favour of the successful candidate, that he was validly elected. However, it went on also to hold that notwithstanding the provisions in Article 89(1) of the 1956 Constitution, the High Court, in a proper case, can interfere with proceedings. in a Provincial Assembly. On appeal by the Central Government on the question of interpretation of Article 89(1), this Court after tracing the history of development of representative institutions in the sub-continent held that the election of the Speaker by the Provincial Assembly "was an internal proceedings of the Provincial Assembly relating to its proper business" which the High Court is barred under Article 89(l) from questioning in writ jurisdiction. However, it is important to point out that the precedent case did not proceed to define what were the "internal proceedings in the Assembly" and the 1956 Constitution as also the successive Constitutions expressly provided for the election of the Speaker of the Provincial Assembly by the Assembly at its first meeting. The question therefore, really is whether the adoption of the report of the Privileges Committee by the Provincial' Assembly was germane to the "internal proceedings relating to its proper business" as in the precedent case?

42. A complete answer to the above question is provided in a later judgment of this Court is Farzand Ali v. Province of West Pakistan (PLD1970 SC98v). In this case, -the constitutionality of the Constitution (Third Amendment) Act, 1965, the .Constitution (Fourth Amendment) Act, 1965 and the Constitution (Sixth Amendment) Act, 1965 was questioned on the ground that these Constitution Amendments Acts were not validly passed by the requisite 2/3rd majority of -the total members of the National Assembly, because out of 113 members of the Assembly who had voted in favour of the amendments, 33 were disqualified to be members of the Assembly under Article 103 of the 1962 Constitution as enacted originally. One of the arguments raised was the right and title of the 33 persons to sit as members of the National Assembly cannot be questioned for it ultimately affected the passage of the three amending Acts which related to the internal proceedings of the Assembly. The case of Ahmad Saeed Kirmani was distinguished and the above argument was repelled. 'The following excerpt from the head note of the report is instructive :-

43. "While it is true that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, it cannot be conceded that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House. It is a question affecting the constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the Courts under Article III of the (1962) Constitution. This is not a matter which pertains either to the regulation of the procedure of the House or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privileges. This is not a question, therefore, which, relates to the "internal proceedings" of an Assembly. Clause (1) of Article III bars the Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more.

44. It is difficult to define as to what constitute "internal proceedings" but this much is clear that they do not extend to anything and everything done within the House. Thus as a general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen. J. in Bradlaugh v. Gossett at p. 283). The test indicated by Sir Erskine May in his book on Parlia mentary Practice is as to whether what is said or done "forms part of a proceeding of the House in its technical sense, i.e. the formal transaction of business with the Speaker in the Chair or in a properly constituted committee". It would be neither possible nor desirable to attempt any exhaustive classification of the matter that may be comprised within the term "internal proceedings" but it will be sufficient for my purpose to indicate that whatever is not related to any "formal transaction of business" in the House cannot be said to be a part of its `internal proceedings'."

45. Referring to Kirmani's case, this Court observed at pages 117 and 118 of ,the report :-

46. "But this Court itself did not attempt to lay down in what particular circumstances proceedings within an Assembly could possibly fall within the jurisdiction of the Courts, except to point out that matters which fell squarely within the definition of internal proceedings of the House would not be subject to scrutiny by the Courts. It was said that whatever can be "fairly described as internal proceedings relating to the proper business of the House would be wholly outside the corrective jurisdic tion of the High Court".

47. In the case of Ahmad Saeed Kirmani the dispute was with regard to the division taking place within the House. The only question there was as to whether certain members had been wrongully prevented from casting their votes. There was no dispute there as to the right to vote or the title of the voter but only with regard to the manner of the exercise of that right."

48. Fazalul Qaudir Chaudhary v. Muhammad Abdul Haq (P L D 1963 S C 486) is also authority for the view that in proceedings for writ in the nature of qua warranto, the right title of persons to sit as members of National Assembly can be called in question by Courts. Therefore, there is no merit in the second limb of the argument of the appellant's learned counsel. The question at the root is not the validity of resolution of the Provincial Assembly accepting the Privilege Motion on 2a-5-1974, but the right, title of the appellant to continue as member of the Assembly and therefore inevitably a question relating to the "composition" of the House, which the superior Courts in the sub continent have not hesitated to consider and decide in appropriate proceedings.

49. Moreover, the report of the Privileges Committee stated inter alia-

50. "Taking into consideration the facts that the Chief Election Commissioner had not so far notified the seat of Mirza Tahir Beg as vacant, the Committee was unanimously of the view that until such notification is issued, Mirza Tahir Beg continues to be a member . . . . . . ."

51. Therefore, there is substance in the argument of Mr. Mumtaz Hussain, learned counsel for Syed Kausar Ali Shah and Mian Muhammad Riaz that the report of the Privileges Committee was of interim nature and had no finality about it. This is borne out by the further fact, that later CEC did notify the vacancy, though not on the authority of any enquiry or decision by the Speaker. Even the ultimate resolution of the Provincial Assembly accepting the report of the Privileges Committee had no binding effect. See Dicey's Law of the Constitution 1965 Edn., p. 54 ; and in re Special Reference 1 of 1973 (P L D 1973 S C 536).

52. Mr. Mumtaz Hussain, learned counsel for the contesting respondents went further and submitted that the Provincial Assembly had no jurisdiction to determine whether a member has vacated his seat. He referred to the Provincial Assembly of the Punjab Privileges Act, 1972 (Punjab Act 11 of 1972) and argued that the Act was exhaustive of the privileges of the members and the present dispute is not covered by any provision of the Act and is therefore extraneous to the power of the Assembly. The argument, if I may say so, proceeds on misconception. The subject-matter of the privilege motion was that the appellant was being prevented from participating in the proceedings of the Assembly. That pre-eminantly concerns the privileges of a member. and the fact that the appellant had been elected as a member in the general election was not disputed. What in essence was asserted in the Motion was his right to attend the sittings of the Assembly until he was held to have validly vacated the seat.

53. However, that may be, the appeals must succeed on the first limb of the argument by Mr. S. M. Zafar, the appellant's learned counsel, that the appellant having repudiated his resignation as involuntary and there was no enquiry of any kind by the Speaker about the alleged involuntary nature of the resignation and further, whether it was properly presented to him by Syed Kausar Ali Shah respondent. That being in the nature of a condition precedent, the election of Mian Muhammad Riaz goes by the board and is set aside and the position reverts to what it was, before the declaration of vacancy by the CEC, pursuant to direction in writ petition No. 258/75. In the case of Syed Shah Nawaz noticed already, the resulting by-election was also ipso facto set aside in somewhat like circumstances, and Syed Shah Nawaz was restored to his seat.

54. As a result of the foregoing discussion, I would accept both the appeals and order as follows

(i) The writ issued by the High Court in Writ Petition No. 258/75, pursuant to which the CEC notified the vacancy purported to having been caused by the resignation of the appellant, is hereby recalled.

(ii) The learned Chief Election Commissioner's order dated 7-7-1975, pursuant to the direction in the above mentioned writ petition is also set aside.

(iii) The resulting election of Mian Muhammad Riaz respondent purport ing to be in the above mentioned vacancy is also set aside.

(iv) The Speaker of the Punjab Legislative Assembly shall hold proper enquiry into the alleged involuntary nature of the appellant's resigna tion dated 16-2-1974 and whether the same was properly transmitted to him and shall make further consequential order in accordance with law.

(v) There shall be no order as to costs.

55. S. A. H. Appeal accepted