1996 SCMR 366 (PLP)

SALEEM AKHTAR, J.‑‑‑The petitioner seeks leave to appeal against the judgment of the learned Judges of the High Court whereby the writ petition . filed by him against a notification of the Sindh Provincial Assembly declaring his seat vacant under Article 64(2) of the Constitution, was dismissed in limine.

2. The petitioner was elected as a member of the Provincial Assembly of Sindh. He did not attend the sessions and sittings of the Assembly on the following dates:‑‑ "S. No. Commencing Closing Actual date date sittings 01. 29‑9‑1994 13‑10‑1994 10 02. 15‑12‑1994 29‑12‑1994 10 03. 9‑3‑1995 30‑3‑1995 15 04. 12‑6‑1995 27‑8‑1‑995 12 47" On 19‑6‑1995, the House, taking note of the fact that the petitioner had been absent for 40 consecutive sittings, declared his seat vacant. The petitioner challenged this action in a writ petition alleging that earlier in the session commencing from 4‑8‑1994 to 23‑8‑1994, he had applied for leave, which was granted on 9‑8‑1994. For the session commencing from 29‑9‑1994 it was stated that he had applied for leave, which was received by the Assembly on 13‑10‑1994 under diary No. 309 by the concerned officer, but no order seems to have been passed on it. He also applied for leave for the next session commencing from 15‑12‑1994 ending. on 29‑12‑1994 for grant of leave, which was placed before the House on 19‑12‑1994 and was not approved. .

3. By the impugned judgment, the learned Judges held that in view of Article 69 (1) of the Constitution, the Courts have no jurisdiction to scrutinise the internal proceedings of the Assembly. The learned counsel for the petitioner contended that under Article 69 the validity of any proceedings in Majlis‑e Shoora shall not be called in question on the ground of any irregularity of procedure, but in the present case, the petitioner has challenged the action taken which is not in accordance with the provisions of the Constitution and the Rules framed by the Assembly. .According to the learned counsel, a period of 40 consecutive days had not properly been computed, which is not an irregularity, but an illegality and, therefore, the Court has jurisdiction. Reference has been made to A.K. Fazalul Quader Chaudhry v. Shah Nawaz and 2 others (PLD 1966 SC 105) and Muhammad Anwar Durrani v. Province of Balochistan (PLD 1989 Quetta 25). The learned counsel has referred to Article 64(2), which provides that a House may declare the seat of a member vacant if, without leave of the House, he remains absent for forty consecutive days of its sittings. The learned counsel has also referred to Black's Law 'Dictionary and Oxford Advanced Learner's Dictionary for ascertaining the meaning of the word 'consecutive'. It means, "successive, succeeding one another in regular order, to follow in uninterrupted succession," according to the former whereas according to the latter, it means, "coming one after the other without interruption; following continuously." The learned counsel pointed out that from the comments filed by the respondents it is clear that petitioner's application for leave was not rejected. The House was prorogued on 13‑10‑1994. According to the learned counsel, after the prorogation, the application not having been rejected, should have been placed before the House in the next session for necessary orders, but it was not done. On the other hand, Mr. Rashid Akhund and the learned Advocate -General, Sindh, contended that the application for leave was put up before the House, which was not accepted, but for argument sake if the order was not passed, then by implication, it was not granted. The learned counsel referred to Article 64 (2) to demonstrate that the law requires that if a member is absent without leave for 40 consecutive days, the House is competent to declare the seat vacant and further that the proceedings of a House cannot be challenged in any Court as provided by Article 69.

4. The contentions raised by the learned counsel for the parties require interpretation of the provisions of the Constitution and the Rules of the Sindh Provincial Assembly, which are of general legal importance. There is no authentic judgment of any superior Court on this aspect of the case. Leave is granted to consider, inter alia, the questions raised by the learned counsel for the parties. The interim order granted earlier is confirmed and shall continue till the final decision of the appeal The appeal should be fixed for hearing in the second week of January, 1996 at No .l of the list. A.A./J‑141/S Leave granted.