P L D 1967 Lahore 227 (PLP)

INAMULLAH KHAN, C. J.‑I propose to dispose of the petition of Mr. A. M. K. Leghari and 105 other petitions filed under Article 98 (2) of the Constitution in which common ques tions of law and fact have been raised. Mr. Leghari preferred his petition on the 5th of July 1966. It was admitted by a Division Bench of this Court on the 7th of July 1966. The rest of the petitions were filed later, commencing from the 11th of July 1966.

2. The facts necessary for the disposal of these petitions are these. The petitioners are Government servants. They are being retired under Article 178 of the Constitution as amended by the Fourth and Sixth Amendments. The petitioners have challenged the validity of the Third, Fourth and Sixth Amendments of the Constitutions under the Third Amendment, passed on the 14th of June 1965 and which received the assent of the Acting President on the 15th of June 1965, certain amendments were made in the Constitution, including clause (2) (a) of Article

103. The petitioners have challenged the amendment of clause (2) (a) of Article 103 of the Constitution whereby certain clarification was made as to the persons who could not be said to hold an office of profit n the service of Pakistan. It runs as under: (2) A person is disqualified, from being: elected as, and from being, a member of an Assembly if (a) he holds an office of profit in the service of Pakistan (other than an office specified in the Fifth Schedule). The portion which has been underlined was introduced by the Third Amendment. It is argued that some of the members of the Assembly allegedly were Lambardars, Chairmen of Union Councils and Union Committees, and reservists in Army and were allegedly holders of office of profit in the service of Pakistan and, were therefore disqualified under Article 103 (2) (a) of the Constitution as it stood prior .to the Third Amendment. The grounds on which these three constitutional Amendments have been challenged, as given in the petition of Mr. Leghari, and repeated in other petitions, are these: (1) That the said three Amendments were made by 113, 119 and 117 votes, respectively. Of these votes, at least, it is alleged, 33 votes were of persons who were disqualified from being members of the Assembly under Article 103 (2) (a) of the Constitution on account of their holding an office of profit in the service of Pakistan. The pre‑requisite of constitutional amendment is that it should be passed by 2/3rds of the members of the Assembly. The members of the Assembly being 156, the 2/3rd majority would be

104. If the votes of the 33 persons, on the ground that they were holding office of profit in the service of Pakistan, are taken out, the number of votes would be much less than 2/3rds of the number of the members of the Assembly. (2) That Article 110 (1) (d) of the Constitution, which lays down that no proceeding to an Assembly shall be invalid by reason only that a person who was not entitled to do so was present at or voted or otherwise participated in the proceedings, does not apply to Part XI of the Constitution. (3) That Article 110 (1) (d) of the Constitution only means pate that an otherwise valid proceeding shall not be rendered invalid by reason only of the presence and voting of disqua lified persons and not that the voting of disqualified persons is as good as that of a qualified person. It has been further urged, assuming that the three Amend ments were valid, that the terms and conditions of service of the petitioners are guaranteed under Art. 234 of the Constitution, that the petitioners could not be retired in the "public interest", and that the action of the competent authority to retire or to propose to retire the petitioners was mala fide. Mr. Leghari, and so have most of the other petitioners, prayed for the following reliefs (a) That the Third Amendment be declared to be without lawful authority, void and of no effect; (b) that the Sixth Amendment be declared to be without lawful authority, void and of no effect; (c) that the acts done and proceedings taken in respect of the petitioner, as explained in paragraph 3 supra (including the reference to Public Service Commission) be declared to have been done and taken without lawful authority and to be of no legal effect; (d) that the respondent be directed to refrain from taking any action in respect of the petitioner under the Sixth Amendment; and (e) that the action taken in respect of the petitioner under the Sixth Amendment be declared to be a fraud on the Constitution, not in public interest and as such in any case without lawful authority, mala fide, void and of no legal effect.

3. The petition came up for hearing before a Division Bench of this Court on the 7th of July 1966. The relevant portion of the admitting note reads as under:‑ "The following among other questions arise out of this petition:‑ (1) Are Lambardars, Chairmen of Union Committees, Vice‑Presidents of Municipal Committees and Vice‑Presidents of District Councils holders of office of profit in the service of Pakistan? (2) If so, were the holders of such offices not disqualified from being elected as, and from being, members of the National Assembly because of Article 103 (2) (a) of the Constitution as it stood before it was awarded by the Constitution (Third Amendment) Act, 1965? (3) Can a person suffering from such a disqualification be 4 Member for the pruposes of Article 209? (4) Could a Bill to amend the Constitution be resented to the President for assent if. it was not passed by the votes of at least 104 members of the National Assembly not so qualified? (5) Is the Constitution (Third Amendment) Act, 1965, good law in spite of the fact that it was not presented for assent to the President in accordance with the provisions of Article 209 ? (6) If not, is the Constitution (Sixth Amendment) Act 1965, good law in spite of the fact that it suffered from the same defect? (7) Is Article 110 (d) applicable to bills for amending the Constitution ? (8) If so, does it control the provisions of Articles 208 and 209 ? Admit. Notice." The Bench recommended, considering the importance as the question involved, that the same should be heard by a larger Bench. The Bench, in the meantime, ordered the respondent (in the petition filed on the 5th of July 1966, only Government of Pakistan was the respondent) not to take any action against Mr. Leghari.

4. The learned Advocates for the parties addressed us at great length, particularly on the question whether Lambardars, Chairmen of Union Committees and Reservists can be said to be holders of offices of profit in the service of Pakistan within the meaning of Article 103 (2) (a) of the Constitution. We did not limit the learned Advocates for the parties to the points mentioned in the admitting order. The address urged may be formulated as under: (1) Whether the question that respondents Nos. 4 to 38 (hereinafter to be referred to as the respondents) are disqualified from being elected as, or continuing to be, members of the Assembly is an "election dispute" within the meaning of Article 171 of the Constitution? If so, can the petitioners challenge the validity of the respondents' election, or their continuing to remain as members of the Assembly under Article 98 of the Constitution? (2) Whether the validity of the proceedings of the Assembly resulting in. the Third, Fourth and Sixth Amendments can be questioned in Court? (3) Whether the authentication of the Third, Fourth and Sixth Amendments by the Speaker can be challenged in Court? (4) Whether the proceedings of the Assembly can be held to be invalid by reason only that certain persons were not entitled to vote have voted? (5) Whether the action of the competent authorities under the Sixth Amendment is male fide? (6) Whether the action of the competent authorities under A. M. Khan the Sixth Amendment is not in public interest and is Leghari premature? (7) Whether the respondents are disqualified to be members Pak, of the Assembly.

5. In order to appreciate the first point it would be useful to reproduce Article 171 of the Constitution, which reads as under:‑ "(1) Subject to clause (2) of this Article, provision may be made by law‑ (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever. (3) The validity of anything done by the Commissioner under Article 160, 161 or 162 shall not be called in question in any manner before or by any Court or authority whatsoever. On an analysis of Article 171 it would appear that the election of the President and the delimitation of the constituencies by the Chief ‑Election Commissioner cannot, in any manner, be questioned. Dispute regarding the counting of votes at an election or referendum, however, are determinable by the Chief Election Commissioner or an Election Commission in accordance with law that may be made for the purpose. Other disputes in connection with election or referendum are determinable only by a tribunal. Such determinations are final, and no dispute arising in connection with an election or referendum can be decided and no election or referendum can be called in question except in accordance with the law governing such disputes. In exercise of the power conferred by clause (1) of Article 171 the Central Legislature as enacted the National and Provincial Assemblies (Elections) Act 1964, (hereinafter to be referred to as the 1964, Act), the Presidential Election Act, 1964, and the Referendum Act, 1964. Prima facie, under Article 171 of the Constitution the election of the respondent can be questioned only in accordance with the 1964 Act.

6. The question as to whether some of the members were disqualified from being elected as, and from being, members of the National Assembly on the ground that they held office of profit in the service of Pakistan is a dispute arising in connection with such an. election.

7. Under section 57 of the 1964 Act subject to the provisions of section 53, any candidate may make an election petition challenging an election for which he was a candidate of one or more of the grounds mentioned in section

72. The relevant portion of section 72 reads as under: "(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected to the seat in question." It would appear from section 72 of the 1964 Act that the question of the alleged disqualification of some of the members on the ground that they held office of profit in the service of Pakistan was a dispute arising in connection with an election held under the Constitution. The question is as to whether the petitioners can raise the question under Article 98 of the Constitution that the respondents were disqualified from being elected as, and from being, members of the National Assembly.

8. The contention of Mr. Mahmud Ali Qasuri and the other Advocates who adopted his arguments and addressed us, is that Article 171 of the Constitution does not operate as a bar to challenge the election of the respondents under Article 98 of the Constitution for three reasons, namely, (1) that the petitioners could not challenge the election of the respondents under the 1964 Act, (2) that Article 171 of the Constitution does not make provision for post‑election disputes, and (3) that the Courts in Pakistan have interfered with election disputes under Article 98.

9. I may be excused for avoiding to make a reference to Indian decisions. It is a matter of principle involving self‑respect. I have not come across any Judge in India referring to our judgments. Morever, the important questions involved in this petition were resolved by their Lordships of the Supreme Court in two cases, namely, that of Mian Jamal Shah v. Election Commission (P L D 1966 S C 1) and Pakistan v. Ahmad Saeed Kirmani (P L D 1958 S C 397). It is impossible for me to improve or add anything, if I may say with profound respect, to the matter set forth in these two cases on which the enunciation of principles of law is based. I mention this as an excuse for copious quotations from these judgments in order to make out my point.

10. The well‑known case of Mian Jamal Shah, if I may say so with profound respect, is of great assistance and guidance in determining the first question, but is not a direct authority on the issue before me, the issue being that "no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law." In Jamal Shah's case the question was as to the finality attached to the decision of the learned Member of the Commission. After a detailed examination of the various questions arising in that case, it was held that under Article 171(1) of the Constitution the power of final determination by the authorities specified therein must be allowed to prevail as against the general power of correction given to the High Courts under Article 98 of the Constitution.

11. The observations made in the case of Mian Jamal Shah by my Lord Cornelius, C. J., are of great significance and importance in considering the true import of the provisions specified in Article 171 that "no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law and the validity of such an election or referendum shall not be called in question except in accordance with such a law". His Lordship Cornelius, C. J., in order to appreciate whether the jurisdiction of Courts was altogether excluded, made wide examination of the whole nature of the history of the law on the subject to which the provision related, of earlier occasions when the sovereign prerogative was sought to be exercised in relation to determinations by specified election tribunals, and of the subject of special jurisdiction generally, before arriving at a full understanding of this clearly excluded jurisdiction, and observed as under:‑‑ "It has already been mentioned that in the history of the sub‑continent and since 1947, of Pakistan, with the exception of a short period between 1956, and 1958, when the judgment in Muhammad Saeed's case was delivered by the Supreme Court reversing the decision of an Election Tribunal, the position has throughout been that election disputes had been totally excluded from the jurisdiction of the High Courts. The whole law re lating to the conduct of elections and in particular to ballotting, i.e., discrimination between valid and invalid votes, as well as in relation to corrupt practices and other illegalities such as could vitiate an election or entail the loss of franchise by individuals has remained throughout sealed territory qua the jurisdiction of the High Court." While considering the history of Parliamentary election disputes in England, his Lordship observed as under: "I say this, not with reference to anything arising in this case directly, but for the reason that were the Parliamentary and judicial traditions are not indigenous, nor of any long standing, but where the Constitution expressly provides for differentiation of functions between the three great organs of .the State, it is a major consideration of great weight that its provisions should not be interpreted in a manner which enables one of those organs to interfere directly with matters which the Constitution has placed exclusively within the authority of another organ for `final determination'. In direct contract to the provision now obtaining in England that election disputes are referred to the High Court for determination under the special provisions referred to above, in our Constitution, Article 171 requires that matters should go before specified authorities and Tribunals for `final determination'. These authorities and Tribunals exercise in the relevant respect jurisdiction which does not and never did belong to the High Court, but is an essential part of Parliamentary jurisdiction, that has been by law entrusted to specified authorities, to operate." Considering the scope of Article 98 of the Constitution viz‑a‑viz Article 171, the learned Chief Justice observed as under:- "Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as a continuation of the power conferred upon the Supreme Court and the High Courts by Article 2 (4) of the Laws (Continuance in Force) Order, 1958, to issue writs of habe6us corpus, mandamus, prohibition, quo warranto and certiorari, is in my view an error. The Constitu tion of 1956 gave similar power to the Supreme Court and the High Courts by expression in more than one Article, but it is well‑recognised that by the abrogation of the Constitution, and the introduction of Martial Law, a wholly new source of plenary authority came into existence and it was from this new source that the ‑new power in Article 2 (4) of the Order of 1958 was derived. Again, when the Martial Law was brought to an end, the Laws (Continuance in Force) Order was revoked with effect from the date of commencement of the Constitution of 1962 which itself was given to the country by the President 'in exercise of the mandate given to me on the Fourteenth day of February One thousand nine hundred and sixty, by the people of Pakistan'. This again was a wholly new source of plenary authority, and it was from this source that simultaneously the High Courts were given jurisdiction under Article 98, and on the other hand, the final determination of election disputes was placed within the exclusive jurisdiction of specified authorities by Article

171. With respect to the view of the Full Bench, for which justification may perhaps be found from expression in a great many judgments delivered by the Courts in England, where jurisdiction comparable to and yet significantly different from that which is now exercised in Pakistan under Article 98, was derived from the ancient prerogative of the King, it must be observed that any assumption that the power under Article 98 is something inherent in the High Court, something of earlier origin than the Constitution of 1962, is one that cannot be supported. The power given by Article 98 comes as a matter of first conferment by the Constitution and it cannot be placed on any higher footing than the authority which can be claimed for Article 171 in the same Constitution. It is to be noted with care that Article 171, subsection (1) is not made expressly 'subject to this Constitution', arid that Article 98 confers power on the High Court 'subject to the Constitution'. Consequently, the terms of Article 171 (1) are to be construed and given their fullest meaning irrespective of anything contained in any other Article of the Constitution. Proceeding on that basis, it is plain that Article 171 requires, with respect to election disputes, that their determination should be in accordance with the law specially made for that purpose, and not determination only, but final determination, that is to say, determination once for all. To emphasise and place beyond doubt that the jurisdiction thus being created was exclusive in an absolute sense, words were‑ added to Article 171 which have already been quoted, and which produce the Effect A. M. Khan that no dispute arising out of an election shall ‑be decided Leghari otherwise than under the law specially made for the purpose in Govt. of accordance with the subsection, nor shall the validity of such an Pak. election be called in question except in accordance with the provisions of the aforesaid law, in this case the National and Provincial Assemblies (Elections) Act of 1964. It must be remembered that a requirement of finality of determination contained in the Constitution is to be placed on a wholly different and certainly at a much higher level than provisions in sub‑constitutional statutes giving finality to the determination of Tribunals constituted thereunder." Mr. Lord S. A. Rahman, J. agreed with the conclusion of the learned Chief Justice, with this modification that if in a particular case, it is found either that an authority functioning under section 53 of the 1964, Act or an Election Tribunal appointed under that Act has either failed to exercise jurisdiction vested in it or clearly exceeded that jurisdiction or if the order in question is found to be tainted with mala fides the aggrieved party may be entitled to invoke the provisions of Article 98 of the Constitution to obtain appropriate relief. 'My Lord Fazle Akbar, J. observed as under:‑ "As pointed out by this Court in the case Imtiaz Ahmad v. Ghulam Ali and others (P L D 1963 S G 382) actions of the Election Authorities can always be called in question if they are characterized as being done mala fide or in bad faith." His Lordship Kaikius, J. observed that Article 171 does not destroy the jurisdiction of the High Court under Article

98. Article 171 provides for the decisions of election disputes in a certain manner and the High Court can always act under Article 98 in enforcement of Article 171 and of the law enacted by virtue of that Article. If the learned Member (or the Election Tribunal) fails to exercise jurisdiction, or exceeds jurisdiction, or acts illegally or with material irregularity in its exercise, the High Court can pass an appropriate order. His Lordship Mr. Yaqub Ali J. observed: "Jurisdiction conferred by Article 98 on a High Court is `subject to this Constitution' namely subject to the bar contained in more than one Article such as Article 8(2) which provides that the validity of an action or of a law shall not be called in question on the ground that it is not in accordance with the principles of policy. Article 116(3) provides that except in relation to pro ceedings mentioned in clause (2) no process whatever shall issue from any Court or Tribunal against the President or a Governor in a personal capacity or otherwise while he is in office. Article 117 (1) lays down that the President, Governor and any Minister except in respect of anything done or not done by him . in contravention of the law will not be answerable to any Court or Tribunal for the exercise of the powers or the performance of the duties of his office or for any act done or purported to be done by him in exercise of these powers or in performance of these duties. Article 133 (2) states that a law shall not be called in question on the ground that the Legislature by which it was made had no power to make the law. And, lastly, there is Article 171 which, as seen above, confers finality on the determination of the authorities designated in it and provides an absolute bar to ringing into question the, election of a person to the office' of the President and the formation of Electoral Units by the Commissioner before any Court or authority whatsoever. This compares unfavourably with the unabridged jurisdiction conferred by Article 170 of the 1956 Constitution." His Lordship further observed that all decisions given by Courts during the period of 1956, Constitution must be distinguished on that ground and that High Court's jurisdiction under Article 98 is limited in its ambit and finality is attached by Article 171 to the determination of the election authorities in 1964 Act.

12. The observations made by my Lords S. A. Rahman, Fazle‑Akbar and Kaikaus, JJ. do not in any way affect the question before me. In the present case an abstract proposition of law, as specified in Article 171, namely, that "no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law" has to be considered.

13. The learned Advocates for the petitioners contended that Article 171 of the Constitution is limited in its scope to the contesting parties in an election. They submitted that under sections 53 and 57 of the 1964 Act an appeal could be filed by a contesting candidate and that an election petition could only be filed by a candidate to the election on the grounds mentioned in section 72 of that Act. It is true, there is no provision in the 1964 Act or under Article 171 of the Constitution making provision in favour of a person other than a candidate to challenge an election of a returned candidate. The question is whether this can be a valid ground for invoking the provisions of Article 98 which is "subject to the Constitution", including Article

171. If the intention of the framers of the Constitution was to confine the challenge of an election to the contesting candidates, the Court cannot extend it in favour of others. The language under examination is clear and admits of no exception. It lays down, in the first place, in mandatory terms that no dispute arising in connection with such an election (election under the Constitution) or referendum shall be decided otherwise than under such a law (1964 Act). In. the second place, it ordains that the validity of such an election or referendum shall not be called in question in any manner except in accordance with such a law. I would at the cost of repetition underline the words of Art. 171 which completely negative the argument of the learned Advocates for the petitioners. These are:‑ "The validity of such an election or referendum shall not be called in question except in accordance with such a law." (in this case 1964, Act).

14. If the Constitution and 1964 Act have not conferred any right on the petitioners, not being contesting candidates to the they cannot claim one under Article 98 of the Constitution. In this connection it may be mentioned that the right to contest an election of a member elected is a statutory right and not a civil right. If the Statute does not confer any right on the general public, the Courts of law cannot grant one. "It is but a corollary to the general rule of literal construction that nothing is to be added to or to be taken from a Statute, unless there are similar adequate grounds to justify the inference that the Legislature intended something which it omitted to express. It is a strong thing to read into an Act of Parliament words which are not there, and, in the absence of clear necessity, it is a wrong thing to do. We are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself." (Cf. Maxwell on Interpretation of Statutes, Eleventh Edition, p. 12). "Where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature". (Craies on Statute Law, Sixth Edition, p. 66). "Casus omissus not to be created or supplied." "A second consequence of this rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made." (ibid, p. 70).

15. Finally, the observations made by my Lord the Chief Justice settle the controversy against the petitioners. He observed as under "Article 171 is not expressed, as are so many other Articles, to be 'subject to the Constitution. By contrast, the power given to the High Courts by Article 98 is to be exercised subject to the Constitution'. Article 171 enables provision to be made by law for decision of disputes arising out of elections. The provision is made in two parts, viz., (i) where a dispute arises in connection with the counting of votes, the law may provide for such dispute 'to be finally determined by the Commissioner or an Election Commission, and (ii) for all other disputes, provision may be made by law that they should be finally determined by a Tribunal established for that purpose'. The exclusive jurisdiction so given by law is protected by the following mandatory injunction contained in Article 171, namely, that 'no dispute in connection with such election‑shall be decided otherwise than under such a law' and 'the validity of such an election‑shall not be called in question except in accordance with such a law. The relevant law made on the point is the National and Provincial Assemblies (Elections) Act, 1964, Chapter VI of which deals with election disputes. Section 52 repeats the above‑mentioned bar to jurisdiction by providing that election disputes shall be dealt with either under section 53 (relating to the count of votes) or under section 57 (relating to all other matters). Section 52 also contains a provision to the effect that no question that can be raised in an appeal under section 53‑shall be raised by an election petition 'or before any Court or authority whatsoever' and further, no question that can be raised by an election petition shall be raised `before any such Court or Authority'." The above observations conclude the matter and I would hold that the only method by which an election dispute can be resolved is under the 1964 Act.

16. There is no force in the contention that because Article 171 of the Constitution does not make provision for post‑election disputes, the provisions of Article 98 of the Constitution are attracted. In the first place, in the instant case, the petitioners have challenged the election of the respondents on the ground that they suffered from a disqualification inasmuch as they held "office of profit in the service of Pakistan". The respondents are said to have suffered from this disqualification when they contested the elections. The dispute did exist even before their election. The learned Advocates for the petitioners in this connection relied on Article 103 of the Constitution; the relevant portion reads as under:‑ "(2) A person is disqualified from being elected as and from being, a member of an Assembly if‑ (a) he holds an office of profit in the service of Pakistan. It is contended that where a person continues to be a member of an Assembly and is disqualified on the ground that he holds an office of profit in the service of Pakistan, no provision is made in 1964 Act to contest his election. There is not much force in this contention. Only that person can continue to suffer from the disqualification who held the "office of profit in the service of Pakistan" at the time of his election. If he was already suffering from the said disqualification at the time of his election, this could be challenged under section 72 of the 1964 Act. If a person had become disqualified after his election, the same could be challenged, under sub‑clause (2) of Article 104 of the Constitution, which lays down that "if any question arises whether a member of an Assembly has, after his election, become disqualified from being a member of the Assembly, the Speaker of the Assembly shall refer the question to the Chief Election Commissioner and if the Chief Election Commissioner is of the opinion that the member has become disqualified, the member shall cease to be a member." Moreover, even if no right was created under the 1964 Act, it meant‑that the Legislature did not intend to do so and the same could not be conferred under Article 98 of the Constitution. Lastly, it was submitted that the petitioners could have recourse to Article 98 of the Constitution as the Courts in Pakistan have interfered with election disputes. It is true that Courts in Pakistan have interfered with election disputes under certain circumstances. It is not necessary to encumber the order by reciting those cases. It is sufficient to state that in those cases the Courts found that the authorities entrusted with election disputes had either acted without jurisdiction, in excess of jurisdiction, or mala fide. In the present case, the question before us is not to scrutinize any decision of the authorities mentioned in the 1964 Act in the light of the principles laid down negative.

17. I propose to dispose of points Nos. 2, 3 and 4 together. They relate to the validity of the Constitutional Amendments, namely, Third, Fourth and Sixth Amendments of the Constitution. They have been challenged on the ground that 33 members, who voted for the Amendments, were disqualified under sub‑clause (2)(a) of Article 103 of the Constitution inasmuch as they held "office of profit in the service of Pakistan" and that if their votes are excluded the requisite number of the members required for Constitutional Amendments, under Article 209, namely, 104 members, cannot be said to have voted for the said Amendments. The learned Attorney‑General, the learned Advocate‑General, and Dr. Nasim Hasan Shah, on behalf of the respondents, relied, in support of the validity of these Amendments, on Article 110(d) and Article 111(1) and (2) of the Constitution. For the sake of convenience, I would consider their submissions as regards Article 111(1) and (2) first.

18. The relevant portion of‑Article 111(1) of the Constitution reads as under:‑ "The validity of any proceedings in an Assembly shall not be questioned in any Court." There were similar provisions in the Government of India Act, 1935. Section 41 of this Act read as under:‑‑ "Courts not to inquire into proceedings of the Legislature". This debarred the Courts from inquiring into the proceedings of the Federal Legislature. A similar provision was contained in respect of Provincial Assemblies, in section 87 of the same Act, which read as under:‑ "The validity of any proceedings in a Provincial Legislature shall not be called m question on the ground of any alleged irregularity of procedure." In the old Constitution of 1956 (hereinafter called the 1956 Constitution) a similar protection was given under Article 56(1), which read as under:‑ "(1) The validity of any proceedings in the National Assembly shall not be questioned in any Court." Article 89(1) read as under: (1) The validity of any proceedings in a Provincial Assemble shall not be questioned in any Court: (2) Similar provision was made in section 4(3) of the Constituent Assembly (Proceedings and Privileges) Act, 1955, (hereinafter to be referred to as the Act of 1955), which reads as under:‑ "The validity of any proceedings in the Assembly shall not be called in question on the ground of any alleged irregularity procedure." The first question that requires consideration is as to whether "voting" is part of the proceedings in the Assembly. In this connection, reference may be made to the Rules of Procedure made by the President under Article 231 of the Constitution, which provides as under:‑ "Until rules of procedure are made by any Assembly under clause (1) of Article 110, the procedure of the Assembly shall be regulated by rules of procedure made‑ (a) in the case of the National Assembly‑by the President." The President was pleased to make rules of procedure of the National Assembly on the 5th of June 1962. Rule 152, which is relevant for the purposes of this case, reads as under:‑ (1) The votes of Members on, any question put by the Speaker may be taken 'by voices in the first instance. If the opinion of the Speaker as to the decision of the question is callenged, he shall direct that the votes be taken by division in the manner set out in Schedule It If, in the opinion of the Speaker, the demand for the division is an abuse of these Rules he may ask the Members, who are for `Ayes' and those for `Noes' respectively to rise in their places and on a count being taken he shall declare the determination of the Assembly. In such a case, the names of the voters shall not be recorded. (2) The result of voting by a division shall be announced by the Speaker and shall not be challenged (3) A Member may not vote on any question in which he has a direct pecuniary interest. If he votes on such a question, the vote shall, on a substantive motion carried by the Assembly, be disallowed. Explanation.‑The interest contemplated in this Rule shall be direct and personal and not remote or general." The above rule does not leave any doubt that the voting by the member is a part of the procedure or proceedings of the Assembly.

19. The meaning of the term "proceedings in Parliament" is given by Erskine May's Parliamentary Practice, 17th Edition, page 62, as under:‑ "The primary meaning, as a technical parliamentary term, of `proceedings' (which it had at least as early as the seventeenth century) is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision." At page 171 of the same book, "internal proceedings" is described as under:‑ "As a result of Stockdale v. Hansard 3 State Tr. (n s) p. 858 the maxim of the law, found in Coke and Blackstone (and according to the letter, the `original' of the whole of the law and custom of Parliament)‑`that whatever matter arises concerning either House of Parliament ought to be examined, discussed and adjudged in that House to which it relates and not elsewhere,' become practically restricted to matters solely concerning the internal proceedings of either House." I have no doubt that the voting by the members relates to the g internal proceedings of the House. As I intend to strongly rely on the observations made by my Lord Cornelius, J., as he then was, in the case of Ahmad Saeed Kirmani, which arose under the 1956 Constitution, it would be necessary to show that the position of the National Assembly of Pakistan under the present Constitution is the same as the one under 1956 Constitution. That this is so can be seen with reference to the observations of my Lori Cornelius, C. J., in the case of Badrul Haq (P L D 1963 S C 704). They run as under:‑ "Dr. Nasim Hasan Shah enumerated the differences between the Legislatures contemplated under the 1956 Constitution and those which have been brought into existence under the 1962 Constitution and it cannot be denied that these are considerable. But at the same time, lie was unable to deny that the place given to the National Assembly in the Constitutional structure by the two Constitutions is exactly the same. In the 1956 Constitution, Article 43 provided that `there shall be a Parliament of Pakistan consisting of the President and one house to be known as the National Assembly.' The parallel provision in the 1962 Constitution .is in practically the same terms, for it reads‑ There shall be a Central Legislature of Pakistan which shall consist of the President and one house to be known as the National Assembly of Pakistan. Each of the two National Assemblies is one composed of representatives of the people and together with the President is to constitute the Central Legislature or the Parliament of Pakistan. It is true that the mode of election to the National Assembly has been changed by the Constitution of 1962 and the number of its members has been halved. It is true that its powers are different from those of the 1956 National Assembly since they are adapted to the working of a Presidential system of Government. But these circumstances do not avail to deprive it of the character of being a special body of men returned by the electors to make laws for the entire country subject to the assent of the President."

20. There is a direct authority of the Supreme Court on the question under examination. In Ahmad Saeed Kirmani's case, a member of the Provincial Assembly by a writ petition challenged the election of its Speaker and the proceedings relating to the election. The provision of Article 89 of the 1956 Constitution, which is similar to Article 111(1) of the present Constitution, came for examination. The question for considera tion was that "the validity of any proceedings in a Provincial Assembly shall not be questioned in any Court." My Lord Cornelius, J., as he then was, while considering Article 89 of the 1956 Constitution, observed as under:‑ "The Article specifies a number of other privileges which it is not necessary to mention here in detail. It will be sufficient to say that so far as they go, they are precisely in line with the development of 'the same privileges in relation to the British Parliament. Thus, subsection (4) of Article 89 protects the publication of Parliamentary Papers by or under the authority of a Provincial Assembly, which was the position reached in England as a result of the actions against Hansard as far back as 1840. I consider that in a similar way, the protection granted to proceedings in a Provincial Assembly against interference by the Courts is to be understood and given its full content by reference to the historical development of that right, through some six centuries of contention, in relation to the House of Commons, I feel no hesitation in thinking that this provision was introduced into the Constitution with a full knowledge of the extent to which the House of Commons had succeeded in establishing , its privilege against the jurisdiction of the Courts, in relation to its own internal proceedings." While considering rule 63 of the West Punjab Legislative Assembly Rules, which is also similar to sub‑rule (2) of rule 151 of the Rules and Procedure of the National Assembly of Pakistan, which runs as under:‑ "The result of voting by a division shall be announced by the Speaker and shall not be challenged," his Lordship observed as under:‑ "In the view which I have taken, this rule which has statutory force, being made under power conferred by the Constitution, must be given the force of a law declaring that the announcement of the result of voting by division once made by the Speaker is not to be challenged in any Court of law. It is of course amenable to correction, for instance, if a Member votes who has a direct pecuniary interest in the question, his vote may be disallowed on a substantive motion carried by the Assembly subsequently." Cornelius, J., while considering the question whether the so‑called proceedings of the Assembly could be described as proceedings, within the meaning of Article 89, because they were vitiated by coercion, duress and mala fides, observed as under:‑ "The means of correction which are contemplated by a Constitution providing for a form of parliamentary Government are, in `matters of this kind involving coercion or mala fides, exclusively of a political kind. The very high authority vested in a Provincial Legislative Assembly which can make and unmake law is to be exercised by the method provided in Article 88 of the Constitution, namely, by the method of decision 'to be taken by a majority of the Members present and voting.' It appears to me to be unconceivable that a decision so taken, where the division of Members of the House is on party lines, can be subjected to examination and either confirmation or rejection by 'the Courts, without one or two extreme dangers arising to the integrity of the very fabric upon which the Constitution is based," The observation further runs as under:‑ I hope I can without disrespect that not only in this country, but in every country where Parliamentary Government is in operation, not only in past ages when such actions, which good man and true might have judged unconscienable, could be said to be `begotten by the iniquity of the time', but even in the present day it is impossible to expect that decisions taken in an Assembly shall always be based upon pure opinions, founded exclusively on the merits of any proposition that is brought forward, with reference only to each Member's conception of what constitutes the public good, aided by advice contained in noble speeches delivered on both sides. It is probably more true to say that such a condition is to be expected only in a small number of cases, but on the contrary by and large, the methods which are resorted to in order to obtain a decision by an Assembly, particularly where the balance between two parties in high contention with each other is a very close one, will often be founded to be unsuitable for exposure in the light of day: In so saying, I say no more than that the general out look and temper, in relation to things moral as well as material, which is evinced by Members of an Assembly, will ordinarily govern the methods by which that Assembly is brought to the point of taking its decisions."

21. The learned Advocates for the petitioners contended, in the first place, that the observations made in Ahmad Saeed Kirmani's case should not be taken to be guiding principle in considering the provisions of Article 111 of the Constitution. In this connection they relied on a number of cases. The leading case is Quinn v. Leathem (1901 A C 495). It was held in that case that every judgment must be read as applicable to the particular facts proved or assumed to be proved. It was held in Attorney General of Canada v. Attorney‑General of Ontario (A I R 1932 P C 36), that decided cases effectively construe the words of an Act of Parliament and establish, principles and rules whereby its scope and effect may be interpreted. But there is always a danger that in the course of that process the terms of the statute may come to be unduly extended and attention may be diverted from what has been enacted to what has been judicially said about the enactment. In Mst. Hamida Bano v. Ashiq Hussain (P L D 1963 S C 109), it was observed that everything said by a Court in a judgment, and more particularly in a judgment in a criminal case, must be understood with great particularity as having been said with reference to the facts of that particular case. Lastly, reliance was placed on Hari Bakhsh v. Babu Lai (AIR 1924 P C 126), wherein it was observed that to understand and apply a decision of the Board or of any Court it is necessary to see what are the facts of the case in which the decision was given and what was the point which had to be decided.

22. The proposition enunciated in the decisions cited by the learned Advocates cannot be doubted. The fact remains that their Lordships of the Supreme Court considered the constitutional provision that the "validity of any proceedings in a Provincial Assembly shall not be questioned in any Court." In great detail and in all its varied aspects, if I may say so with great respect, in respect of the powers conferred on Courts by Article 170 of the 1956 Constitution. Whatever principle has. been laid down in Ahmad Saeed Kirmani's case is of high authority and being the law declared is binding on this Court. In that case the facts were of little importance in considering the provisions of Article 89, of the 1956 Constitution. The only question that was to be considered was as to whether the result of the division for the election of the Speaker was "the proceedings of an Assembly" and thus protected under Article 89 of the 1956 Constitution. In the present case the question is as to whether the voting by some of the members of the National Assembly, who participated in the three Constitutional Amendments, is "proceedings of the Assembly" and therefore, protected under Article 111(1) of the Constitution. I am clearly of the view that the principles laid down in Ahmad Saeed Kirmani's case are applicable on all fours to the present case.

23. In the second place it was contended that some of the members of the National Assembly who participated in these Constitutional Amendments being unqualified, the proceedings if not allowed to be challenged in Court would be against the principles of equity and good conscience. In this connection Mr. Qasuri relied on the Debates of the National Assembly at the time of the Third Amendment. He submitted that the Law Minister was in great hurry to have the Amendment carried out. He proposed for the suspension of some of the Rules of Procedure of the National Assembly in order to rush through the Amendment. Some of the members had pointed out that there were some members who were disqualified. These objections were ignored. There is not much force in this contention. In this connection I would reproduce a few lines from the judgment in 4hmad Saeed Kirmani's case. They run as under: "It seems to me that to invoke principles of justice equity and good conscience as known to the Courts and as applied by the Courts to the resolution of matters lying between individuals or between individual subjects and the State, into the formation of majorities for the purposes of a decision by an Assembly, is to ignore the realities of the matter and involves a risk of grave injury to the compromise, represented by the Constitution, between the great powers, whose equilibrium inter se is the only guarantee of the freedom and well being of the country. All the evils to which the learned Judge has referred in the passage cited above have appeared from time to time in the functioning of popular Assemblies all over the world." It was next contended that some of the members were interested in the Third Amendment and therefore, were disqualified to vote. The members of the Assembly could raise a substantive motion to challenge the vote of the members who were alleged to be interested in the Amendment inasmuch as they were alleged to be holders of "office of profit in the service of Pakistan." Sub‑rule (3) of rule 152 of the Rules of Procedure of the National Assembly of Pakistan reads as under;‑ "A member may not vote on any question in which he has a direct pecuniary interest, if he votes on such a question, the Pa vote shall, on a substantive motion carried by the Assembly, be disallowed." It is not. necessary to go into the question whether some of the members who were alleged to be holders of "office of profit in the service of Pakistan" had direct and personal interest in the Amendment. It is sufficient to say that no substantive motion was moved‑much less carried‑in the Assembly.

25. It is not necessary to go into the question as to whether the authentication of the Third, Fourth and Sixth Amendments of the Constitution by the Speaker can be challenged in Court in view of my finding that the validity of the proceedings in the Assembly cannot be challenged in Court. I would, however, briefly dispose of this contention. Sub‑clause (2) of Article ,111 of the Constitution reads as under: (2) An officer or member of an Assembly in whom powers are vested for the regulation of procedure, the conduct of business or the maintenance of order in the Assembly shall not, in relation to the exercise by him of those powers, be subject to the jurisdiction of any Court." Under Article 108 of the Constitution, the Assembly has to choose a Speaker and two Deputy Speakers. One of the functions of the Speaker is given in rule 71 of the Rules of Procedure of the National Assembly of Pakistan, which reads as under: "When a Bill is passed by the Assembly, an authenticated copy thereof, signed by the Speaker, shall be transmitted to the President's Secretariat by the Secretary, for action under Article 27 of the Constitution." Rule 72 thereof reads as under‑‑ "When a Bill has been passed by the Assembly and assented to by the President, or the President is deemed to have assented to the Bill, under Article 27 of the Constitution, the Speaker shall immediately cause it to be published in the Gazette as an Act of the Central Legislature." The authentication of a Bill, signing thereof and publishing it in the Gazette as an Act of the Central Legislature, to my mind, refer to the conduct of the business within the meaning of sub‑clause (2) of Article 111 of the Constitution. This cannot be the subject‑matter of jurisdiction under Article 98 of the Constitution in this Court.

26. I now proceed to consider the provisions o Article 110(1)(d) of the Constitution, which reads as under:‑ "No proceeding in an Assembly shall be invalid by reason only that a person who was not entitled to do so was present at or voted or otherwise participated in the proceedings." This is a validating provision. The Legislature visualised the difficulty with which it may be confronted if sortie of the members, who were participating in the proceedings and against whom election petitions were pending, were subsequently found to have been illegally elected. Election petitions are not .quickly disposed of. Then there are petitions in the High Court and sometimes appeals to the Supreme Court. This takes quite a long time. In the meantime number of important Acts may have been passed by the Assembly in which the persons who were subsequently declared to have been illegally elected had participated. If the Acts in which these members, who were subsequently found to be illegally elected, had participated were set aside on that ground, there would be chaos and contusion in the country. It was to safeguard against this difficulty that the Legislature made the above provision. If some, of the members on the date that they participated in the proceedings were disqualified on the ground alleged by the petitioners, the Legislature has given a complete protection under Article 110(1) of the Constitution to the proceedings resulting in the Third, Fourth and the Sixth Amendments of the Constitution. These Amendments cannot, therefore, tie held to be illegal on the ground that persons not entitled to vote have voted.

27. Even if there were no validating provision like Article 110(1) of the Constitution, I venture to say, most respectfully, that the three Constitutional Amendments will be covered by the general principle enunciated by Cornelius, J., as he then was, in the case reported as Federation of Pakistan v. ‑Ali Ahmad Hussain Shah (P L D 1955 F C 522), where his Lordship observed as under:‑ "The principle is perfectly clear that as. a juristic person, al corporation is distinct from the corporators and certainly, it cannot be right to think that the acts of such a juristic person are vitiated ex post facto because of the discovery made subsequently that some of the corporators, who participated in the acts of the corporation perfectly bona fide, lacked the necessary qualification or were otherwise not validly appointed or included as corporators." In order to apply the above principle, it would be necessary to find out whether the members of the Assembly who were alleged to suffer from some disqualification acted bona fide. I have no hesitation to hold that they acted bona fide. In the first place, election petitions were filed only against eight members. Of these, four were dismissed and four are pending. It follows, therefore, that of the 33 respondents who participated in the Assembly 29 persons had no reason to believe that they were not as good members of the Assembly as others. Their election was notified on 2‑4‑1965. They were duly elected members according to the 1964 Act. The law as it stood at the time they contested the election was that Lambardars etc., could not be said to be holders of "office of profit, in the service of ' Pakistan". In this connection, reference may be made to Sajjad All Khan v. Ch. Fazal Elahi (P L D 1957 Lah. 940). They had, in these circumstances, no reason to doubt the validity of their election.

28. Mr. Mahmud Ali Qasuri and the other learned Advocates who appeared for the petitioners, raised a number of points in support of their contention that the provisions of Articles 110(1)(d) and 111(1) did not apply to Constitutional Amendments. It was very strenuously contended by Mr. Mahmud Ali Qasuri that Part XI of the. Constitution‑Amendment of Constitution‑is not subject to the provisions of Article 110(t)(d) and Article 111(1) of the Constitution. In support of his contention he relied on Article ' 208 of the Constitution, which reads as under: "Subject to this Part, this Constitution may be amended by an Act of the Central Legislature." The contention is that so far as the amendment of the Constitution is concerned, it is ably covered by Part XI. There is not much force in this contention. Part XI of the Constitution consists of three Articles 208, 209 and

210. I have already, reproduced Article

208. Article 209 lays down that a Bill to amend this Constitution shall not be presented to the President for assent unless it has been passed by the votes of not less than 2/3rds of the total number of members of the National Assembly. The rest of the Article deals with the assent of the President. Article 210 lays down that a Bill to amend this ‑ Constitution, which would have the effect of altering the limits of a Province, shall not be passed by the National Assembly unless it has been approved by a resolution of the Assembly of the Province passed by their votes of not less than 2/3rds of the total number of that Assembly. All that Article 208 lays down, is that the conditions prescribed in Articles 209 and 210 will have to be complied with before the Constitution is amended. It does not mean that the other provisions of the Constitution will not be applicable. All it means is that a Bill to amend the Constitution cannot be passed unless 2/3rds of the total number of members of the National Assembly vote for it. It is not possible to read in Article 208 of the word "only" after "subject to this Constitution". In this connection, reference may be made to Article 231 of the Constitution, which reads as under:‑ "Until rules of procedure are made by an Assembly under clause (1) of Article 110, the procedure of the Assembly shall be regulated by rules of procedure made‑ (a) in the case of the National Assembly by the President: and (b) in the case of the Assembly of a Province‑.‑by the Governor of the Province." ' The President has been pleased to make Rules of Procedure in June 1962, known as the Rules of Procedure of the National Assembly of Pakistan. The Rules of Procedure so made are applicable to the amendment of the Constitution as well with thus modification that the conditions provided under Articles 209 and 210 of the Constitution will have to be followed.

29. In the next place it was contended that a correct interpretation of Article 110(1)(d) would mean that the proceedings of an Assembly cannot be invalidated only because some members who were not entitled to vote participated in the, proceedings if they are otherwise valid. In other words, the submission is that the proceedings of an Assembly could not be invalidated if for instance 120 people voted for an amendment, of the Constitution and out of these persons ten persons were disqualified. As under the Constitution the votes of 104 member; would have been sufficient to amend the Constitution, the vote of 10 disqualified persons were immaterial. There is not much force in this contention. The Word "no" is of great significance. It means "not any". In the next place, it was not necessary for the Legislature to make Constitutional provision to validate a proceeding in which the requisite number of qualified persons has participated. On general principle also, if by ignoring the invalid votes, a Bill was passed by the requisite number of votes. the same would have been good law.

30. In the third place, it was contended that the assent ii; not part of the "internal proceedings" of the Assembly." The contention was. that a Bill to amend the Constitution could not be presented to the President unless it was passed by the vote;; of not less than 2/3rds of the total number of members of the Assembly. In this connection it was sought to be made out that as 33 members who were disqualified participated in the Amendment it cannot be said that the Bill‑presented before the President way passed by 2/3rds of the total number of members of the Assembly. This argument suffers from a primary defect. If it is once conceded that voting is a part of the proceedings of the Assembly, the same will be protected under Article 111(L) of the, Constitution. If it cannot be challenged it will have to be taken for all legal purposes that the Bill was in fact passed by 2/3rds of the total number of members of the Assembly. In that view of the matter, it cannot be said that the Bill presented to the President for assent was not passed by the requisite number of members of the National Assembly as required under Article 209 of the Constitution.

31. In the fourth place, a distinction was sought to be made between "rule" and "constitutional provision". It was submitted that suspension of rule 59 of the Rules of Procedure of the National Assembly of Pakistan was a matter of procedure while the requirement of voting by the requisite number of members in case of constitutional amendment was one of Constitution. The submission was that procedure is referable to rules only. There is not much force in this contention. We are concerned with the validity of votes which is a question of challenging proceedings and is not confined to holding that the requisite number of members did not vote.

32. In the fifth place it was submitted that as the Speaker has no power to forbid a member of the Assembly from voting, on the ground that he was disqualified, the voting cannot be said to relate to the proceedings of the Assembly'. There is no force in this submission. The power of control over the members of the Assembly cannot determine as to whether voting is a matter of procedure of the Assembly or not. Everything that takes place in the House is said to be the "internal proceedings" of the Assembly.

33. It was submitted, in the sixth place, that constitutional provisions cannot be affected by rules. This proposition cannot be disputed. Rule 152(2) of the Rules of Procedure of the National Assembly which provides that the result of voting by a division shall be announced by the Speaker and shall not be challenged is not in violation of the Constitution. No violation of any constitutional provision is involved in rule 152(2) and none has been suggested.

34. Lastly, it was submitted, relying on an Indian decision, that the question relating to the validity of votes is not a question relating to the internal proceedings of the Assembly and this question can be raised in a Court of law. That was a case relating to the Municipal Corporation of the City of Bombay. The validity of vote may be a question of law but if the Constitution bars its consideration by a Court of law, the same cannot be questioned.

35. The effect of my decision on the questions relating to Articles 110(l)(d) and 111(1) of the Constitution. is that the Third Amendment of the Constitution is a valid piece of legislation. The National Assembly by the Third Amendment by adding Schedule 5 has specified that the holders of certain offices cannot be said to hold "office of profit in the service of Pakistan." In view of the Third Amendment, Lambardars, Chairmen of Union Councils and Union Committees and also persons who are in Pakistan Army Reserve cannot be said to "hold office of profit in the service of Pakistan" within the meaning of Article 103(2) of the Constitution so as to disqualify them from being elected as members of the . Assembly. It is, therefore, unnecessary, in view of the Third Amendment, which has been given retrospective effect, to give any finding as to whether the respondents can be said to "hold office of profit in the service of Pakistan." '

36. Mr. Mahmud Ali Qasuri, during the course of the arguments, made an application for amendment of the petition .so as to include the relief of .quo warranto. He made this application by way of precaution. He was apprehensive that the petition may be dismissed on the ground that a relief of quo warranto had not been asked for. On the statement of the learned Attorney‑General that the petition could not be dismissed (if Mr. Leghari was otherwise entitled to the relief he had asked for) on the ground that no prayer for quo warranto had been made, we dismissed the application. Even if the application for amendment of the petition so as to include the relief for quo warranto against the respondents was granted, it would not have been possible to grant the prayer. The relief of quo warranto was asked for on the ground that the respondents, who were holding public offices, were disqualified to hold the same as they were holding "office of profit in the service of Pakistan." In view of my finding that the\ Constitution (Third Amendment) Act, 1965 could not be challenged in a Court of law and was, therefore, a valid one, the ground on which the public office of the respondents was challenged disappeared.

37. It has been contended on behalf of Mr. Leghari that respondent No. 1 acted mala fide under Article 178 of the Constitution, in ordering his retirement. There is no force in this contention. In the petition of Mr. Leghari and others no particulars of mala fide are given against the competent authority entitled to take action under Article

178. In the petition of Mr. Leghari all that is mentioned is that some senior officers of the Government were against the petitioner. This fact by itself cannot support, even if accepted, the allegation of the petitioner against the Government. There is no allegation that these officials in some way influenced the Government to take action against the petitioners under Article 178 of the Constitution. The presumption is that every action of Government is bona fide In this connection reference may be made to the case of Sai Muhammad v. West Pakistan Province (P L D 1952 S C 181). It was observed by my Lord Cornelius, J., as he then was, as under:‑ "The correct attitude in estimating the actions of Government is indeed that they must be regarded as having been taken bona fide until and unless the contrary is established. It is, of course, only in a rare case that a question of good faith underlying a governmental action can be raised with relevancy before the Courts, which are most frequently concerned with the extent to which such actions are covered by the terms of statutory instruments. But where the question arises, it is entirely proper and greatly in the public interest that the presumption of good faith should be raised in favour of the action." This observation was confirmed by their Lordships of the Supreme Court in the case reported as Imtiaz Ahmad v. Ghulam Ali (P L D 1963 S C 382).

38. Lastly, it was submitted that the power under the impugned Amendments is subject to the requirement that it can be exercised "in the public interest". Paragraph 9 of the petition reads as under: "That the power taken by the impugned amendment is still subject to the requirement that it can only be exercised in the public interest'. The Provincial Government under whom the petitioner has served throughout is fully satisfied with his work. The exercise of this power is not attracted in the petitioner's case because not only is his elimination from service not in public interest, he submits in all humility, it is contrary to public interest and mala fide." In the first place, the question as to whether Mr. Leghari is being retired in public interest is premature inasmuch as admittedly only a reference has been made to the Central Public Service Commission. The possibility cannot be ruled out that the Public Service Commission may take a different view than the competent authority. In the second place, the question as to who is to be the Judge of "public interest", I am of the view that B this Court has no power to inquire as to whether the retirement was in "public interest" or not. In this connection reference may be made to the observations made by Lord Viscount Dunedin in Bhagat Singh v. King‑Emperor (58 I A 169). In that case the question that arose before the Privy Council was as to whether any emergency did exist so as to authorise the Governor‑General to p, promulgate an Ordinance. In the present case the question is ‑as to public interest to retire the petitioners. Viscount Dunedin, J. observed: "The petitioners ask this Board to find that a state, of emergency did not exist. That raises directly the question who is to be the Judge of whether a state of emergency exists. A state of emergency is something that does not permit of any exact definition. It connotes a state of matters calling for drastic action, which is to be Judged as such by someone. It is more than obvious that that someone must be the Governor General, and he alone. Any other view would render utterly inapt the whole provision." I am of the view that the question as to whether it is in the public interest to retire a certain public servant under Article 178 of the Constitution or not, is a question of which the competent authority is the sole Judge. This Court cannot enter on a contentious and protracted inquiry on the question of public interest. A similar view was taken by Viscount Simon, L. C., in, King‑Emperor v. Benoari Lal Sharma (72 I A 57). In that case also the question was as to whether an emergency existed at the time when an Ordinance was promulgated. Their Lordships of the Privy Council held that the question whether an emergency existed or not is a matter of which the Governor‑General is the sole Judge. There is difference between "emergency" and "public interest", but if the Constitution has entrusted the determination of the question of emergency or of public interest to a certain authority, this Court cannot substitute its own judgment after a contentious and protracted inquiry.

39. Their Lordships of the Privy Council had occasion to consider "public purpose" in dealing with cases under the Land Acquisition Act. In the case reported as Ezra v. Secretary of State (I L R 32 Cal. 605), it was observed that the nature of inquiry in respect of existence of public purpose for which the land could be acquired was "in no sense litigious". In another case Wijeyesekera v. Festing (1919 A C 646), the Privy Council had occasion to examine as to whether the decision of the Governor as to the public purpose under the Ceylon Acquisition of Land Ordinance was final or not. Lord Finlay, at page 649, observed as under:‑ "It appears to their Lordships that the decision of the Governor that the land is wanted for public purposes is final and was intended to be final and could not be questioned in any Court." The conclusion that I draw from these cases it that where the Legislature has given a power of subjective satisfaction to an authority, its decision is final it cannot be questioned‑ in any court.

40. I would, for the reasons given above, dismiss these 106 petitions with no order as to costs.

41. There were in all 145 petitions before us. I had asked my Reader to request the learned Advocates appearing for the petitioners to give a list of petitions in which some other substantive point had been raised beside the once urged in Mr. Leghari s petition. The learned Advocates gave a list of 39 such petitions. I may mention that these petitions also were mainly admitted for the consideration of the constitutional points taken in Mr. Leghari's petition. I would, however, in the interest of justice order that these petitions be heard by a Division Bench on 28‑10‑

66. WAHIDUDDIN AHMAD, J.‑,In these writ petitions which have been heard together the petitioners have raised a number of questions of law about the validity‑ of the third, fourth and sixth amendments of the Constitution of Pakistan 1962, which were recently passed by the National Assembly of Pakistan.

2. The facts leading .to these petitions have been fully stated in the judgment of my Lord the Chief Justice. I would therefore not repeat them. It will be noticed that the main attack on the validity of the said constitutional amendments is that respondents Nos. 4 to 38 being Lambardars, Chairmen of the Union Councils or Committees and Reservists in the Pakistan Armed Forces, are holders of "office of profit" in the service of Pakistan and being disqualified from being elected and from being, a member of the National Assembly . of Pakistan under Article 103(2)(a) of the Constitution illegally got themselves elected to that august body and were not entitled to participate in the ‑proceedings of the National Assembly held on 14th June 1965 in which the Third Constitution Amendment Act of 1965 was passed. It is alleged that the aforesaid three constitutional amendments were passed by 113, 117 and 119 votes respectively. Since out of these at least 33 votes were of persons disqualified, their votes could not be counted for the purpose, of determining the two thirds of the total number of votes required for assent of the President under Article 209 for the Amendment of the Constitution of Pakistan 1962 and consequently it has no validity in the eye of law. ‑It 'was admitted at the bar that if the said constitutional amendment is held to be valid, the validity of the other two constitutional amendments is not open to challenge.

3. It will be further noticed that by the Third Constitution Amendment, amongst others, Lambardars, Chairman of Union Councils or Committees and Reservists in Pakistan Armed Forces have been exempted from the alleged disqualification. One of the main grievance of the petitioners is that the respondent members, who were suffering from the alleged disqualifications, knowingly that they were disqualified, improperly participated in the meeting held on 14th June 1965. It is quite correct that the Law Minister while introducing the bill for this purpose did state that it was for clarifying certain provisions of the Constitution pertaining to the issue of "office of profit" and it was brought with a view to clarify and to remove any doubt which might have arisen in that behalf. It is also correct that objection was raised about the participation of such members but the acting Speaker very rightly declined to make any comment on their status on the ground that they were duly elected and notified as members of the Assembly and were as good members as the others. I am however not prepared to attribute any bad motive to the respondent members because at the material time on the controversial question whether Lambardars are holders of office of profit in the service of Pakistan there was a well considered judgment by a Division Bench of this Court in the case of Nawab Sajjad Ali Khan v. Chaudhri Fazal Illahi Speaker, Legislative Assembly and others (P L D 1957 Lah.940), in which it was held that a Lambardar is not the holder of an "office of profit" in the service of Pakistan within the meaning of paragraph 4(1)(c) of Part II of the Fourth Schedule to the Constitution of 1956, which contained the same provision as in Article 103(2) of the present Constitution. On this view the member concerned was allowed to continue to be a member of the Provincial Assembly of West Pakistan. In this connection it will be useful to reproduce the observations on this point of Kayani, J., as he then was. His Lordship at page 949 observed: "It is inconceivable that Article 179 should have started with providing conditions for service in a broad sense, including the post o‑f a Lambardar, but that in the rest of the chapter that broad meaning should have been totally forgotten and provision as to appointment, dismissal and conditions of service should have been made only in respect of persons holding posts in ordinary civil and defence services of the country. If that were so, the only object of Article 179 would have been to ensure that persons in the "general service" of the State, like Lambardars, should be citizens of Pakistan and as regards other conditions of service, it did not matter if they were dismissed without a reasonable opportunity being given to them to defend themselves. I have, therefore, no doubt that the Constitution did not intend to include a Lambardar in the service of Pakistan."

4. Mr. Qasuri, the learned counsel for the petitioner, besides challenging the soundness of this view, referred us to the decision of the Supreme Court in the case of Election Commission of Pakistan v. Nawab Sajjad Ali Khan (P L D 1960 S C 235), in which the above decision was set aside on technical grounds. But the learned counsel had to admit that the reasoning of the learned Judges in the Lahore case was not disapproved and therefore it can safely be said that the principle of law enunciated in the above case still held the field. In this background no bad motive can be attributed to the respondent members.

5. The other grievance of Mr. Qasuri is that there was a conspiracy between the members to pass the‑impugned Legislation in a hurry so much so that in spite of the protest and walk out staged by the opposition it was passed in the Budget Session in a single day after suspending rules 58 and 59 under rule 170 of the relevant Rules of Procedure. Mr. Qasuri admitted that this by itself has no material bearing on the merits of the case. However there is nothing extraordinary or objectionable in passing the legislation in this manner. The Rules of Procedure authorised such a course of action on the approval of the House. Besides even in the House of Commons, which is taken as a model of parliamentary institutions, there are instances in which legislations have been passed with unusual expedition. Instances of such legislation are discussed at page 571 of May's Parliamentary Practice (15th Edition 1950). As regards the allegation of abuse of legislative power it being a political question this Court has no control over it. As pointed out in Attorney General of Canada v. Attorney General for Ontario (78 L T 697), a decision of the Privy Council cited at the Bar by the learned Advocate‑General: ‑ "The Supreme legislative power in relation to any subject matter is always capable of abuse, but it is not to be assumed that it will be improperly used; if it is, the only remedy is an appeal to those by whom the Legislature is elected." Much of the time of this Court was taken by the learned counsel for the parties on the question whether respondents Nos. 4 to 38 held "office of profit" in the service of Pakistan. According to Mr. Mahmud Ali Qasuri, learned counsel for the petitioner, out of them 23 are Lambardars, 17 are Chairmen of the Union Councils and 2 are Reservists in the Pakistan Armed Forces. But a perusal of the Annexures filed with the petition will show that some of them held both the offices of Lambardars and Chairmen of Union Councils or Union Committees. Out of them five of the respondents have denied the allegation that they are holding any "office of profit". There is no proof to the contrary about them. Similarly on the affidavit filed by Malik Muhammad Qasim it cannot be said that he is a Reservist. Thus on the material placed on the record, at the most the petitioners can allege that 17 of the respondents being Lambardars, 8 being Chairmen. of Union Councils and 2 being Reservists in the Armed Forces, are holding "office of profit" in the service of Pakistan. But the view that I propose to take on the objections raised on behalf of the respondents it will serve no useful purpose to decide the controversial question whether the said respondents hold "office of profit" in the service of Pakistan. I will therefore refrain from expressing any opinion on this question and proceed to decide these petitions on the assumption that the above respondents were disqualified to become or remain as members of the National Assembly at the material time. The objection raised by the respondents about the jurisdiction of this Court and on other points may be summarized as under: (1) That the jurisdiction of this Court is barred under Article 110(d) and Article 111 of the Constitution to challenge the proceedings in the Assembly including the manner in which the members voted and the assent as given by the President for the impugned legislation. (2) That Article 171 of the Constitution is a complete bar of jurisdiction for this Court to go into the question of the qualification or disqualification of the respondent members and (3) That the acts of de facto members who function under colour of title are valid as they in fact hold an office.

7. Therefore the first legal hurdle in the way of the petitioners is the immunity claimed in respect of the proceedings of the National Assembly under Article 110(d) and Article 111(1) of 1962 Constitution. In this connection the learned Attorney General has urged the following points:‑ (1) voting in the Assembly pertains to a formative stage of an enactment and constitutes an essential part of the proceedings of the Assembly which is not subject to scrutiny of Courts according to Article 111(1), of the Constitution. The objection against the validity of vote is barred under the said provision; (2) the acts of the Speakers in making announcement of the result of division of votes and authenticating the bill as having been passed are not subject to jurisdiction of Courts under Article 111(2) of the Constitution and the Courts cannot go behind the Speakers announcement or the result of the division or authentication. (3) Article 110(d) declares that votes of even disqualified persons shall not vitiate the National Assembly proceedings. This is a provision conferring validity but it implies also a jurisdictional aspect. No Court or authority can declare as invalid which the Constitution declares as valid. Thus constitutional amendments cannot be impeached on the basis of allegedly disqualified person having voted in their favour. (4) In so far as the petition involves `the attack and objections to the election of certain respondents, Court'; jurisdiction is barred whether the purpose of proceeding is directly to challenge the rights of .the aforesaid persons to be members of the National Assembly or to challenge their right only for collateral or ulterior purpose. (5) Constitutional amendments can be made by means of Central Act. The provision of the Constitution and rule relating to the formative stage of such Act under rule 110(d will apply in the absence of any contrary provision in Part XI. That only is the significance "subject to this part" i: Article 208.

8. I will therefore first take up the question whether the jurisdiction of this Court to question the validity of the vote of respondents 4 to 38 is barred under Article 110(d). Before discussing this point it will be useful to reproduce Article 208 and 209 of the 1962 Constitution which are in the following terms: "

208. Subject to this part, this Constitution may be amended by an Act of the Lentral Legislature. 209. (1) A bill to amend this Constitution shall not be presented to the President for assent unless it has been passed by the votes of not less than two‑thirds of the total number of members of the National Assembly. It will be further useful to reproduce Article 110(d) and Article 111(1) of the Constitution which are as under:‑ "110(d) no proceeding in an Assembly shall be invalid by reason only that a person who was not entitled to do so was present at or voted or otherwise participated in the proceedings. 111. (1) The validity of any proceedings in` an Assembly shall not be questioned in any Court." An examination of these constitutional provisions would show that Article 110(d) and Article 111(1) appear in Part V of the Constitution which deals with the provisions applicable generally to the Centre and Provinces; whereas Articles 208 and 209 are in Part XI of the Constitution which deals with the amendment of the Constitution‑

9. Mr. Mahmud Ali Qasuri, learned counsel for the petitioner, has raised two important contentions to meet these objections which require consideration. In the first place, the learned counsel contended that the requirement of Article 209 of the Constitution has nothing to do with the proceedings of the National Assembly. It is an independent self‑contained constitutional requirement. If in any given case the constitutional amendment has not been passed by the votes of not less than two‑thirds of the total number of members of the National Assembly it will be not considered to have been properly passed and cannot be presented to the President for assent. Secondly, the learned counsel contended that in order to determine whether the votes of two‑thirds of the total .number of members of the National Assembly have supported any constitutional amendment the provision of Article. 209 of the Constitution are not controlled by Article‑ 110(d) and Article 111 of the Constitution. The learned counsel very strongly urged that the determination of such question cannot be considered to bean internal proceeding of the assembly and is not immune from attack under the aforesaid provision of the constitution. In support of his case Mr. Qasuri further contended that Part XI of the Constitution is a self‑contained provision; the assent to the constitutional amendment is to be given under the special procedure provided .in Article 209 and Article 27 of the Constitution has no. application to such an enactment. That Article applies to ordinary legislation. He further contended that the question whether the requisite number of votes of the members of the National Assembly have supported the constitutional amendments and whether assent was given after the fulfilment of the condition laid down in Article 209 of the Constitution was a provision as to manner and form; and therefore if the Third Constitutional Amendment was not approved by two‑third votes of the total number of members of the National. Assembly it cannot be held to be validly passed.

10. It was further urged by Mr. Qasuri that in the Constitution there is no power in the National Assembly or the Speaker to determine whether a member is or is not entitled to vote. They also cannot confer any right on any person to participate in the assembly. The learned counsel distinguished the power of the National Assembly from the power of the British Parliament which itself has a right to determine the rights of its members. According to him the National Assembly cannot claim the same constitutional position because it is not a sovereign body. He further contended that by the Rules of Procedure framed by the President or the Assembly no statute or the constitutional provisions can be infringed. Disqualified persons cannot be given right to vote by the Rules of Procedure or for the matter of that by the procedure. Otherwise the Speaker becomes all powerful and it is not what the Speaker is required to do. The right of a person to vote or not to vote is a matter of status and not an internal proceeding of the Assembly.

11. Mr. Zullah, the learned counsel for some petitioners, also contended that the word "proceedings" used in Article 110(d) is not different from "procedure" and has been used only in that sense. The Learned counsel also drew distinction between the act of voting and the right to vote. He further drew a line of distinction between the process of legislative measures which are liable to challenge and which are not. According to him, if the disqualification is there and the contest is not about the number of votes but only about the right to vote such question is to be decided by Courts of law.

12. In support of his contention that the Constitution expressly gives power to Superior Courts for its interpretation Mr. Qasuri relied on a decision of the Supreme Court in Fazlul Quader Choudhry and others v. Muhammad Abdul Haque (P L D 1963 S C 486). According to the view taken in this decision it cannot be disputed that the ‑interpretation of the Constitution is a prerogative and the duty of the superior Courts. Their Lordships have clearly laid down that in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the superior Courts as its preservers, protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provision in the absence of any bar either express or implied. At the same time as observed by Rahman, J., it is the duty of the Courts to interpret the Constitution as an organic whole giving due effect to its various parts and trying to harmonise them so as to make it an effective and efficacious instrument for the governance of the; country.

13. The learned counsel further relied on the decision of the Federal Court of Pakistan in the case of Federation of Pakistan v. Ali Ahmad Hussain Shah (P L D 1955 S C 522) for the proposition that the general rule is that if the Legislature illegally adds to its members and the persons so added take part in discussion and voting the laws passed by it are void. In that case Munir, C. J., further observed that in the case of Companies and statutory bodies like Municipal Corporation, the rule is well settled that the proceedings of such bodies are vitiated by strangers taking part m and voting of their meeting. Mr. Qasuri, further relied on the observations of Kaikaus, J., in the case of Mansoorul Haque v. Controlling Authority (P L D 1963 S C 652), at p. 662: "The vote of the other Vice‑Chairman was no doubt cast improperly for he had no right to vote. But that does not affect the validity of the resolution for removal because the voting was eight to two and the absence of one vote will not make any difference. It is contended by learned counsel for the appellant that the presence of even one Vice‑Chairman who was not entitled to vote should be a ground for setting aside the resolution, because he may have influenced the other members, but this only means that there was an irregularity and the resolution could be set aside 'on the ground of the irregularity only if it was material. Onus is on the appellant to show that as a matter of fact this irregularity affected the result of the voting. Admittedly there is nothing at all on the record to prove that the presence of the Vice‑Chairman who had no right to vote in any way affected the resolution. The mere presence of a member not entitled to .vote is not itself sufficient for setting aside the resolution." In support of his contention that the validity of votes is a question of law and a Court of law has jurisdiction to entertain such objections, he placed reliance on the case of Nariman v. The Corporation of the City of Bombay (A I R 1923 Dom. 305). In that case Mulla, J., as he then was, was considering the effect of the participation of some members who were found to be disqualified. In that context the learned Judge at page 316, column 2, observed as under:‑ "The question of the validity of a vote is a question of law and a Court of law has jurisdiction to entertain it. One of the points raised on behalf of the defendants was that the Court has no power to interfere with the internal management of a Corporation and reliance was placed on the observations of Lord Davey in Burland v. Earle. On page 93 the noble and learned Lord says. "1t is an elementary principle of the law relating to joint stock companies that the Court will not interfere with the internal management of companies acting within their powers and in fact has no jurisdiction to do so." But surely questions as to the validity of the internal management of a Corporation they are questions that can be disposed of only by a Court of law." Reference was also made to the decision of the Indian Supreme Court in Vinod Kumar and others v. State of Himachal Pradesh (AIR 1959 S C 223). In that case a defect in the summoning of the Provincial Assembly was considered to be such that it robbed all laws passed by the Himachal Pradesh Legislature. Strong reliance was also placed on the decision of the Privy Council in Attorney‑General for New South Wales and others v. Irethown and others (1932 A C 526). In that case the Constitution Act of 1902 enacted by the Legislature was amended in 1929 by adding section 7‑A which provided that no bill for abolishing the Legislative Assembly should be presented to the Governor for His Majesty's assent until it had been approved by a majority of electors voting upon a submission to them made in accordance with the section; and that the same provision was to apply to a bill to repeal the section. In 1930 both the Houses of the Legislature passed two bills, one to repeal section 7‑A and the other to abolish the Legislative Council without complying with section 7‑A of the Constitution Act of 1902. It was held by the Privy Council that the whole of section 7‑A of the Constitution Act of 1902 was within the competence of the Legislature of the State under section 5 of the Colonial Laws Validity Act, 1865; that the provision that bills of the nature stated must be approved by the electors before being presented was a provision as to "manner and form" within the meaning of the proviso; and accordingly the bills could not lawfully be presented unless and until they had‑been approved by a majority of the electors voting.

14. In my opinion the above decisions are clearly distinguishable and are not of much assistance to the petitioners because the National Assembly cannot be placed on the same level as a Municipal Corporation or a Legislature having strictly limited functions. It is impossible for me to hold that an assembly which has the power to amend the Constitution is a non‑sovereign body. Moreover, in the Bombay case there was no such validity clause as contained in Article 110(1)(d). On the other hand, under section 52 of the City of Bombay Municipal Act 1888 there was a specific provision that the disqualification or defect would not vitiate the proceedings whenever the majority of persons‑parties to such acts or proceedings were entitled to act. In the Bombay case it was found that the majority of persons, parties to the impugned proceedings were not in its favour. It was for this reason that reliance was placed on behalf of the defendants on the general law that the Courts should not interfere with the internal management of the Corporation. The principle enunciated in the Federal Court decision has also no bearing on the facts of the present case because in the Indian Independence Act there was no such validation clause as in the present Constitution. The Indian Supreme Court decision is also distinguishable because in that case instead of summoning the new Legislature the old Legislature was summoned which was not competent to pass are legislation in respect of big landed estates; and therefore there could be no other alternative except to hold that any such legislation was passed by an incompetent Legislature. The point involved in 1932 Appeal Cases 526 was quite different and it is also distinguishable. In the first place in that case the Legislature concerned under the Australian Constitution had strictly limited legislative functions. Secondly the consent of the electorate which was a~ pre‑requisite was not obtained. There was no allegation that the consent was illegally obtained in the present case. Kaikaus J.'s observations in the case of Mansur‑ul Huq v. Controlling Authority are also of general nature. The learned Judge by making the above observations only pointed out that the vote of the other Vice‑Chairman improperly cast was not itself sufficient to vitiate and set aside the resolution because the voting was eight to two and the absence of one vote will not make any difference. In that case too there was no such validating clause as has been relied upon on behalf of the respondents.

15. Coming back again to Article 110(1)(d) it will be noticed that it clearly provides that "no proceedings in an Assembly shall be invalid by reason only that a person who was not entitled to do so was present or voted or otherwise participated in the proceedings." It therefore contemplates to cure two types of irregularities. Firstly it cures the proceedings if any person who was not entitled to do so was present at or otherwise participated in the proceedings of an assembly. Secondly it cures the defect if any person who was not entitled to do so voted in the proceedings. No one can have any quarrel with the contention of Mr. Qasuri that the key of this sub Article is the word "only". It will be noticed that in the present case too the alleged illegality is in respect only of the participation and voting in the proceedings of the assembly leading to the enactment of the Third Constitutional Amendment Act. Therefore it has full application on the facts of these cases. In fact in this respect the Pakistan Constitution has gone much further than what was provided in the Government of India Act 1935 or what is provided in some Municipal statutes or in the Companies Act. In those statutes the defect is curable only when it is discovered subsequently. In some legislations there is a rider clause attached to it that it will be available only, whenever the majority of persons‑parties to such act or proceedings were entitled to act. I have noticed such a rider clause in section 57 of the Bombay Act referred to by Cornelius, J., as he then was, in P L D 1955 F C 522 at page 535.

16. In such cases argument could be advanced that for validating the defects, the majority for the act or resolution passed must be maintained, meaning thereby that if excluding these votes the majority becomes a minority the proceedings would be vitiated. Had this been the intention of the framers of the Constitution they could have easily attached similar rider clause, but that is not the case.

17. Such validitating provisions are not unknown to the constitutional legislations. The underlying idea behind them is that in the absence of such a provision chaos will result in the governance of a country if at some stage any such defect as is mentioned in this sub‑Article is discovered. The case of Ali Ahmad Hussain Shah referred to above is an example of such disastrous consequences. It may be that in other legislations on this subject it is open to make a distinction between an election in which there is a defect or, in other words, between a defective election and no election at all. Apparently the provision under consideration is of much wider scope, but I would be reluctant to extend it to cases where there is no genuine election and would prefer to confine it to cases of purported appointment or elections or in the words of the learned Attorney General "to persons holding public office under colour of title".

18. Equally unsound is the argument of the petitioner's counsel that right to vote is something different from the act of voting and has no connection with the proceedings of an assembly. According to May's "on Parliamentary Practice". "The primary meaning, as a technical Parliamentary term, of "proceedings" is some formal action, usually a decision taken by the house in its collective capacity. This is naturally extended to the form of business in which the House takes action and the whole process, the principal part of which is debate, by which it reaches decision." According to the learned author. "An individual member takes part in a proceeding by speech but also by formal action, such as voting, giving notice of motion etc., or presenting a petition or a report from a committee, most of such action, being time‑saving substitutes for speaking." In Coffin v. Coffin (4 Mass 1), Parson, C. J., described it as under:‑ "I will not confine it (freedom of speech) of delivering an opinion, a speech or haranguing in debate but will extend it to giving a vote, to‑ the making of a written report and to any other act resulting from the nature and in the execution of the office." The present case however stands on a much firmer ground because the act of voting has been validated in the sub‑Article under consideration in relation to the proceedings of an assembly which clearly indicates that such act forms part of the legislative process. In my view if an attack is made on the right of a member to vote in the proceedings of an assembly it is nothing short of questioning the validity of the proceedings of such an assembly and the mere fact that Article 209 happens to be in a separate part of .the Constitution by itself cannot be a good ground to render ineffective the provisions of Article 110(1)(d) of the Constitution. The next question for consideration is whether Article 111(1) bars the jurisdiction of this Court to consider the validity of the proceedings of the Assembly in so far as the right of respondent members to participate in it and to vote in respect of the Third Constitutional Amendment is concerned. The argument of Mr. Mahmud Ali Qasuri on this aspect of the question is the same as in respect of Article 110(d). He contended that the constitutional requirement‑ of the votes of 2/3rds of the total number of members has nothing to do with the internal proceeding of the Assembly. According to him the sphere of Article 209 commences after the National Assembly has passed a bill, it is an act which has to be performed outside the chamber of the National Assembly. On the other hand, the contention of Mr. Ghias Muhammad, the learned Attorney‑General is that voting and division in the Assembly are part of the proceedings of the Assembly and pertain to a formative stage of an enactment. Since Assembly proceedings are not subject to scrutiny by the Court and objection about the validity of voting is barred under Article 111(1), it is not open to this Court to consider whether the votes of Respondents 4 to 38 were validly cast. In this connection Mr. Qasuri further contended that the President is only part of the Central Legislature and not of the National Assembly and therefore the proceedings of the Assembly referred to in Article 111(1) refers only to the proceedings of the National Assembly. It seems to me that the last contention of Mr. Qasuri cannot be supported on the provisions of Article 19 of the Constitution which reads under:‑ "There shall be a Central Legislature of Pakistan, which shall consist of the President and one House, to be known as the National Assembly of Pakistan." The contention of Mr. Qasuri that the words "to be known as the National Assembly of Pakistan" go with "one House" has no substance because the words "There shall be a Central Legislature of Pakistan" followed by a comma and the words "which shall consist of the President and one House" are followed by another comma which clearly indicates that the Central Legislature of Pakistan consists of the President and one House and is to be known as the National Assembly of Pakistan. It was contended by Mr. M. A. Zullah and Mr. Qasuri that Article 20 which provides for the composition of National Assembly cannot lead to such a conclusion. But there is no such inconsistency because it only provides that there shall be 156 members of the National Assembly, one half of whom shall be elected in accordance with the Constitution and law from the Province of East Pakistan and the other half from the Province of West Pakistan; and out of them three of the seats for the members of each province shall be reserved exclusively for women. Mr. Zullah contended that had it been the intention of the framers of the Constitution that the President was also a part of the National Assembly his office would also have been mentioned in Article

20. The argument of the learned counsel has not impressed me because in Article 19 the old notion known to the constitutional: students that the Queen or the King or the President are part and parcel of the parliament has been introduced, while in Article 20 the manner in which the National Assembly has to be composed is provided. If the intention of the framers of the Constitution had been to describe the one House of the Central Legislature to be known as National Assembly of Pakistan it was open to them to adopt the same phraseology as was incorporated in Article 43 of 1956 Constitution which is in the following terms: "There shall be a Parliament of Pakistan consisting of the President and one House, to be known as the National Assembly." Under this Article the idea is quite different. In it the National Assembly refers to one House and not to the Parliament of Pakistan. Reference to Article 79 of the Indian Constitution will also bear this out which is as under: "There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respec tively as the Council of States and the House of the people." There is no comma after the words "Parliament for the Union" or after the word "and two Houses". Therefore in the Indian Constitution also the words "to be known respectively as the council of States and the House of the people" refer to the two Houses and not to the President. In other Constitution where a different intention is contemplated the same phraseology has been used as in Article 19 of the Pakistan Constitution, for instance, section 1 of the Australian Constitution provides as under: "The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senata and a House of representatives and which is hereinafter called the parliament or parliament of Commonwealth." Thus in Australia the Federal Parliament consists of the Queen, a Senate and a House of representative and all these functionaries are described as the parliament or parliament of the Commonwealth. It is therefore quite obvious that under Article 19 of‑the Constitution of 1962, the Central Legislature of Pakistan consists of the President and one House and it is also to be known as the National Assembly of Pakistan. In this view of the matter the President is part and parcel of the National Assembly of Pakistan. The history behind such constitutional legislation has been discussed at length in the case of Federation of Pakistan etc. v. Moulvi Tamizuddin Khan (P L D 1955 F C 240). In this connection Munir, C. J., at page 284 of the report observed as under:‑ "The Crown is a constituent part of Parliament in the United Kingdom and of all', Dominion Legislatures either because it is expressly so stated in the constitutional statutes or because the Crown appoints the Governor‑General who is empowered to give or withhold assent to the Legislation of the Dominion. The same was the position under the Act of 1935, where the King's representative, i.e., the Governor General, was a part of the Federal Legislature. It is this common restriction that exists on the Dominion Legislation which subsection (3) of section 6 intended to enact when it provided that the Governor‑General of the Dominion shall have full power to assent in His Majesty's name (including the power to withhold assent) to laws of the Legislature of the Dominion." Thus from whichever angle the position of the President qua the National Assembly is considered it is quite clear that he i; part of the National Assembly. It is for this reason that under Article 27 of the Constitution it is provided that:‑ "When a bill has been passed by the National Assembly i shall be presented to the President for assent." Similarly, in Article 209(1) of the Constitution, it is provided that:‑ "A bill to amend this constitution shall not be presented to the President for assent unless it has been passed by the' votes of not less than 2/3 of the total number of members of the National Assembly." Moreover, the President, has a right to address the National Assembly and to send messages. The life of the office of the' President goes with the life of the National Assembly. Under Article 23(4) if the President dissolves the National Assembly "he shall cease to hold office upon the President elected as his successor entering upon his office." Considering the case of the parties in this light there can be no doubt that when a bill is, presented, whether it is an ordinary legislation or a constitutional amendment, to the President for his assent, it is in the formative stage of the legislative process and this sphere of activity can be described as nothing else but a part of the proceedings of the National Assembly. In this view of the matter it is quite obvious that if any objection is raised about the validity of the assent or about the validity of the total number of votes cast in support of the constitutional amendments, scrutiny of this question will be barred under Article 111(1) of the Constitution which provides that: "The validity of any proceedings in an assembly shall not be questioned in any Court."

20. Mr. Qasuri, however, contended that when the National Assembly proceeds to amend the Constitution under Part XI it has a different capacity and the rules of procedure applicable leading to the enactment of ordinary legislation have no application. It was further argued by him that the assent required under Article 209 of the Constitution has nothing to do with the assent required under Article

27. It is something different from what is provided in Article

27. In my opinion this contention also has no force. The well recognised principle of interpretation of constitution is that all its provisions should be construed in such manner that it may lead to harmonious results. The contention of Mr. Qasuri might have had some force if there was some other procedure provided for amendment of the Constitution. Part XI does not provide for the manner in which a constitutional legislation should be passed by the National Assembly. On the other hand, Article 208 specifically provides that: "Subject to this part, this constitution may be amended by an Act of the Central Legislature." Therefore, subject to what is provided in Part XI the other procedure for the amendment of the constitution will be the same as for passing an Act of the Central Legislature. What is an Act of the Central Legislature is provided in Article

28. It provides that when the President has assented or is deemed to have assented to a bill passed by the National Assembly it shall become a law and shall be called an act of the Central Legislature. Therefore a bill passed by the National Assembly assented to by the President is called an Act of the Central Legislature. The manner in which it is to be assented would be the same as provided in Article

27. The only rider clause in respect of the constitutional amendment under Article 209 is that it shall not be presented to the President for assent unless it has been passed by the votes of not less than two‑thirds of the total number of the members of the National Assembly. It is not disputed that ordinary legislation can be passed by a majority of votes and Mr. Qasuri frankly conceded that even if a disqualified person participates in the 'passing of ordinary legislation that would not be of much consequence. His main attack is on the constitutional amendment and he forcefully contended .in respect of such a bill that if it has not been passed by the votes of not less than two‑thirds of the total number of the members of the National Assembly, it cannot be presented to the President for his assent. So far his argument is quite correct. ' But the moment he proceeds to argue that this is not a legislative process but something outside the legislative process the difficulty arises. It seems to me that Part XI of the Constitution is not a complete code of procedure for passing constitutional amendments. So far as gaps in the procedure as to how in what, manner it is to be passed by the National Assembly and how the President's assent is to be obtained, one shall have to fall back) on the rules of procedure framed under Article 110(1) of the Constitution. Somewhat similar dispute arose in the Indian Court in respect of Article 368 of the Indian Constitution which also deals with constitutional amendments: It was urged before the Indian Supreme Court that the ordinary procedure of legislation has no application in respect of the' constitutional amendments made under Article 368 of the Indian Constitution. It was urged that when the Houses of Parliament consider the question to amend the constitution they act in the entirely different capacity and the ordinary procedure for the passing of the legislation has no application in such cases. In Shankari Prasad Singh Deo v. Union of India and others (A I R 1951 S C 458), this contention was repelled by Patanjali Sastri, J., on the following observations made at page 461 of the report:‑ "Somewhat closely allied to the point discussed above is the objection based on the bill in the present case having been passed in an amended form and not as originally introduced. It is not correct to say that Article 368 is a complete code' in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President's assent is to be obtained. Evidently, the rules made by each House under Article 118, for regulating its procedure and the conduct of its business were intended, so far as may he to be applicable. There was some discussion at the Bar as to whether the process of amending the Constitution was a legislative process. Petitioner's counsel insisted that it was not and that, therefore, the legislative procedure prescribed in Article 107, which specifically provides for a bill being passed with amendments, was not applicable to a bill for amending the Constitution under Article

368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments and in case the two Houses failed to agree, the whole machinery of Article 368, would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority provided for in Article 108 in the case of ordinary bills would be inapplicable in view of the special majority required in Article

368. The argument proceeds on a misconception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary Legislature by passing a bill introduced for the purpose and that Articles 107 to 111, cannot in terms apply when parliament in dealing with a bill under Article 368, there is no obvious reason wily Parliament should not adopt on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements. Repelling the contention that a Local Government Board conducting a statutory enquiry should have been guided by the procedure of a Court of Justice, Lord Haldane observed in Local Government Board v. Arlidge 1915 A C 120: Its (the Board's) character is that of an organisation with execution functions. In this it resembles other great departments of the State. When, therefore, Parliament entrusts .it with judicial duties. Parliament must be taken in the absence of any declaration to the contrary, to have intended to follow the procedure which is its own and is necessary if it is to be capable of doing its work efficiently.' These observations have application here. Having provided for constitution of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House (Article 118), the makers of the Constitution ‑must be taken to have intended Parliament to follow that procedure, on far as it may be applicable, consistently with the express provision of Article 368, when they entrusted to it the power of amending the Constitution." In the present case, the case of the respondent stands on a much stronger ground. It is not disputed that the National Assembly of Pakistan Rules of Procedure were framed by the President pursuant to Article 231 of the Constitution until the Rules of Procedure .are made by the Assembly under clause 1 of Article

110. In these rules, rule 5.7, in Chapter 10 relates to the Amendment of the Constitution. It is in the following terms:‑ "

75. Amendment of the Constitution.‑In respect of a Bill seeking to amend the Constitution, the following special rules shall apply in addition to the Rules of Procedure relating to all Bills in so far they are not inconsistent with any provision of the special rules‑ (i) the Bill shall be put to the Assembly clause by clause unless the Speaker with the concurrence of the Assembly decides to put the Bill as a whole: (ii) if there is a Schedule to the Bill, the Schedule shall be put separately to the Assembly; (iii) If a Member requests that any clause or any clause as amended be put separately, the Speaker shall put that clause or that clause as amended separately, even if it has been decided earlier to put the Bill to the Assembly as a whole; (iv) A clause of the Bill, a Schedule to the Bill or the Bill as a whole shall be declared as passed only if not less than two‑thirds of the total‑ number of Members have voted in its favour; (v) the voting on the Bill shall be by division only; (vi) in case the President withholds his assent from the Bill after it has been passed by the Assembly and the Bill is put to a vote a second time after re‑consideration it shall not be declared to be passed unless not less than three fourths of the total number of Members of the Assembly have voted in its favour." It will be noticed that his rule specifically provides that in respect of a bill seeking to amend the constitution the special rules provided in it shall apply in addition to the Rules of Procedure relating to ordinary Bills in so far as they are not inconsistent with any provision of the special rules. These special rules amongst others provide‑ (a) that the Bill shall be declared as passed only if not less than two thirds of the total number of voters have voted in its favour and (b) the voting on the bill shall be by division only. Thus in these special rules sufficient safeguard has been provided to carry, out the intention of Article 209 of the Constitution. Besides the special rules themselves provide that the other rules applicable to the passing of the bills provided in the rules of procedure are also applicable to the bills relating to the amendment of the Constitution. In this connection it will be noticed that under rule 152, sub- clause 2 the result of voting by a division shall be announced by the Speaker and is not open to challenge. Then under rule 71 "when a bill is passed by the Assembly and an authenticated copy thereof, signed by the Speaker it shall be transmitted to the President's Secretariat by the Secretary for action under Article 27 of the Constitution."

21. From the above discussion there can be no manner of doubt that the legislative process of the amendment of Constitution starts from the introduction of the hill in the National Assembly and continuous up to the stage of the assent by the President. I am, therefore, inclined to accept the contention of the learned Attorney General that the Legislative process of giving assent to the constitutional amendments is part of the proceedings of the National Assembly and immune from attack under Article 111(1) of the Constitution.

22. In this connection it will be useful to refer to some of the. Pakistan, Indian, American and English decisions on this aspect of the case. In Achi v. Lakchmi Achi and others (A I R 1945 F C 25), the validity of the Hindu women's right to property Act was challenged. The circumstances which raised doubt as to the validity of the Act were that the bill which ultimately became law was passed by the legislative Assembly of the Indian Legislature on 4th February 1937, that is before part 3 of the new Constitution Act came into operation. But it was passed by the Council of State only on 6th April 1937, that is after part 3 came into operation and it received the Governor General's assent on 14th April 1937. At the time when the bill was passed by the legislative assembly, the Central Legislature had the power to legislate in respect of all property movable or immovable but by the time it came up for consideration before the Council of State, the Indian Legislature had been precluded from dealing with devolution of agricaltura‑1 land. It was contended (a) that on the introduction of the new Constitution it was no longer open to the Council of State to treat the bill as one which it could take up for consideration and therefore, the bill could not be deemed to have been passed by both Chambers of the Indian Legislature; (b) That on the true construction of section 316 of the Constitution Act any subsequent enactment of the Indian Legislature would have validity only if it had been initiated after 1st April 1937 and (c) that as the Act purports to deal generally with property it was ultra vires so far as it affected the agricultural land. The question was further raised that as the bill was passed without amendment, it was not open to the Court to attempt to give it validity by excluding agricultural land from its operation. This contention was repelled by Varadachariar, J., on the ground that whether a bill has been passed without amendment is a question of fact and it is not open to the Court to speculate as to what is likely to have teen in the minds of the members of the Council of State when they dealt with the bill. These are certainly internal matters beyond the jurisdiction of the Court to inquire into. "It was further held that "the efficiency and operation of the Act must be determined with reference to the point of time when the process of its becoming .a law has been completed," Spens, C. J., took a somewhat different view. At page 37 of the report, the learned Judge observed, after referring to certain passage in May's Treatise on the Law, privileges, proceedings and use of parliament that "this passage obviously implies that otherwise a Court might investigate the alleged irregularity and feel bound to hold the enactment invalid." But while consi dering the objections the learned Judge at page 38, column 1, observed as under:‑ "Dealing with the last mentioned argument first in my opinion, when a Court ascertains that a bill has in fact been passed by both Chambers of the Indian Legislature in exactly the same words and form and has so been assented to by the Governor‑General, it is impossible and improper for the Court further to investigate whether each Chamber and the Governor General gave the same meaning and connotation to the common terms used. In this case the Court is asked to act on presumption. But if the Court can consider presumptions it seems to me impossible to exclude cases when positive evidence might be offered. In some other case the Court might be asked to act upon allegations of facts that so many individuals voted upon some misapprehension as to the meaning of some word or words used so that no real majority was obtained in favour of a bill in one chamber or the other. How could such an investigation be conducted? What steps could a Court properly take to obtain evidence on the maker? I can see no end to the difficulties which might arise or the con flicts in which Legislatures and Courts might become involved if the Courts ever assume the right to investigate what meaning in fact this ok that chamber or individual members attributed to words or phrases in a bill at the time they voted in favour of the passing of it. A similar investigation into the mind of the Governor‑General at the time of declaring assent would be not less improper." Zafrulla, J. however observed at page 42 of the report that: "I am unable to accept the contention that the Court is debarred from investigating whether a piece of Legislation, which appears on the face of it to have been agreed to by both chambers of the Indian Legislature without amendment and to have received the assent of the Governor‑General, was or was not validly enacted by reason of any alleged lack of power or capacity in one or both chambers to function effectively." The line of argument summarised above does not raise a mere matter of procedure regulating proceedings in either chamber of the Legislature. It calls in question the very capacity of the Legislature to function. The determination of the question raised does not depend upon the construction of the rule of business or Standing Orders of the chambers but upon the interpretation of and the effect to be given to provision of the Constitution Act1from which the Legislature derives its powers to legislate."

23. The question whether the Courts are competent to scrutinise the internal proceedings of the assembly was further considered in all its aspects by the Supreme Court of Pakistan in Pakistan v. Ahmed Saeed Kirmani (P L D 1959 S C 397). In that case, the Article of the Constitution under consideration was Article 89 of Pakistan Constitution 1956, which was in identical terms as the one under consideration. It is as under: "Validity of any proceedings in a Provincial Assembly shall not be questioned in any Court." In that case, allegations were made of interference with votes of members in course of the election of the Speaker of the National Assembly. On facts, the High Court found the allegation to be baseless but the learned Chief Justice and other Judges of the High Court expressed the opinion that the immunity attaching to proceedings of the Assembly, recognised in the above Article was not absolute. The. High Court held that in a proper‑case its writ jurisdiction could be legitimately invoked where, for instance, so called proceedings of the Assembly are really outside the purview of the Constitution. This view came up for consideration in the above case. Their Lordships of the Supreme Court commenting upon it observed at page 415 of the report as under:‑ "This statement taken by itself is unexceptionable, provided it is clearly understood that any proceedings which can fairly be described as "internal proceedings" relating to the proper business of the House are wholly outside the corrective jurisdiction of the High Court. The means of correction which are contemplated by a Constitution providing for a form of Parliamentary Government are, in matters of this kind involving coercion or mala fides, exclusively of political kind. The very high authority vested in a Provincial Legislative Assembly which can make and unmake law is to be exercised by the method of. decision `to be taken by a majority of the members present and voting'. It appears to me to be unconceivable that a decision .so taken, where the division of members of the House is on party lines, can be subjected to examination and either confirmation or rejection by the integrity of the very fabric upon which the constitution is based. Either the authority of the Legislative Assembly which is to be asserted by the fact of a majority of the members being in favour of a proposition, will be irretrievably destroyed in the process, should the Courts prevail, or in the alternative, the authority and the whole standing of the Courts will be incurably diminished and the high position which is given to them in the balance of powers within the Constitution will be prejudiced in such a way as to render their functioning nerveless and even possibly of danger to the body politic, were they ever to attempt to resolve disputes between contending political parties inside the House, on the basis of justice, equity and good conscience. The constitutional provision being that an Assembly shall function by the method of recording majority votes and the recording of such votes being governed by the statutory procedures which ' makes it entirely an internal proceeding of the House, it is to be regarded as a requirement of the Constitution that the manner of procurement of such a majority within the House shall not become the subject‑matter of scrutiny and determination by the Courts." The observations of Kayani, J., as he then was that: "In short, I do not recognise a proceeding as an Assembly proceeding if it is found on coercion, fraud or bad faith" were also disapproved by their Lordships on the following observations "With great respect, and bearing in mind that I have already expressed my opinion on this point, it seems to me that to invoke principles of justice, equity and good conscience as known to, the Courts and as applied by the Courts to the resolution of matters lying between individuals or between individual subjects and the State, into the formation of majorities for the purpose of a decision by an Assembly, is to ignore the realities of the matter and involves a risk of grave injury in the compromise, represented by the Constitution, between the great powers, whose equilibrium inter se is the only guarantee of the freedom and well being of the country. All the evils to which the learned Judge has referred in the cases cited above have appeared from time to time in the functioning of popular assemblies all over the world. The modes of correction of such matters, appearing in the conduct of a body which is uncontrollable by any other body or authority in the State, can only be applied by that body itself. It may be that for this purpose, the Courts must wait until a change of outlook, or the appearance of conscience, supervenes. It is obvious that no such change of outlook or birth of conscience can be brought about by any action within the competence of the Courts. It is upon those grounds that, speaking with respect, it is impossible for me to give my assent to the following further proposition laid down by the learned Judge." Their Lordships further held at page 418 that "If a proceeding is an internal proceeding of a Provincial Legislative assembly and relates to its proper business, then under Art. 89 it must be recognised as such by the Courts, and the Courts must refrain from interfering with it." Two important principles emerge from the above decision. Firstly, that the question of recording of votes being governed by statutory procedure makes it entirely an internal proceeding of the House, and it is to be regarded as a requirement of the Constitution that the manner of procurement of majority within the House shall not be subject of scrutiny and determination by the courts. Secondly, that the Courts should not fail to recognise a proceeding as an assembly proceeding even if it is found on coercion, fraud or bad faith.

24. This point came up for further consideration before a Full Bench of this Court at Lahore in the case of Mobinul Haq Siddiki v. Muhammad Iqbal, Speaker of the Provincial Assembly, West Pakistan (L P D 1964 Lah. 23). In that case Mr. Mobinul Haq who claimed to be the speaker of the Provincial Assembly prayed that the respondents be directed by the High Court to assist him in the performance of his duties and exercise of his rights and privileges and should not interfere with his functioning as such. It was alleged by him that after he had adjourned the House the other officers of the Provincial Assembly illegally called a meeting of the assembly and removed him without lawful authority. It was urged before this Court that the question raised by Mr. Mobinul Haque related to the internal proceedings of the assembly and this Court could not interfere with it. Their Lordships accepted this contention following the view taken by the Supreme Courts of Pakistan in the above case. In that case the Full Bench was considering the effect of Article 111 of the present Constitution and upheld the objection raised on behalf of the respondent that as the dispute related to the internal proceedings of the assembly the Court had no jurisdiction to interfere with it. Their Lordships further held that the High Court was only competent to consider whether the proceedings whose validity is challenged is fairly within the meaning of the expression "internal proceedings" of the assembly. Once they come to the conclusion that it is an internal proceeding of the assembly their jurisdiction to proceed further to consider its validity is barred under Article 111 of the Constitution. Mr. Qasuri made an attempt to distinguish the Supreme Court case on the ground that the discussion in it is obiter dicta and has no application to the case of an Assembly which is functioning under a Presidential system of constitution. In my view none of the grounds is tenable. Even an obiter of the Supreme Court is binding on this Court. Besides in Badrul Haque Khan v. Election Tribunal Dacca (P L D 1963 S C 704) at page 723, Cornelius C. J. repelled a similar contention holding that "the new National Assembly performs very much the same function in the Constitution of 1962, as the proposed National Assembly under the 1956 Constitution".