P L D 1993 Karachi 286 (PLP)

NASIR ASLAM ZAHID, C J.

Petitioner was elected as a Member of the Sindh Provincial Assembly in the general elections held in October, 1990, from Constitution P.S.76 Karachi (W)IV. After taking oath as a Member of the Assembly, petitioner was elected as the Speaker of the Provincial Assembly, Sindh, under Article 108 of the Constitution.

2. According, to the petitioner, while he was holding the office of Speaker, he was forced to leave his place of residence alongwith the members of his family because of differences within the party, Mohajir Qaumi Movement, and "was virtually compelled to go in hiding for the sake of his own safety as well as for the safety of his family members". According to the petitioner, on 28-11-1992, Chairman of M.Q.M. Mr. Azim Ahmed Tariq, through a press conference announced the members of the party who had gone into hiding to come out the hiding and pursuant to such announcement, the petitioner also came out and staged his appearance before the public in spite of his ill-health. According to the memo. of petition, as soon as he came out of hiding, he challenged his alleged resignation and took a clear stand that he had not resigned his office and further that he was very much the Speaker of the Provincial Assembly of Sindh. On 29-11-1992, the petitioner sent a telegram to the Chief Justice of the Sindh High Court where he stated that the news circulating through the press media regarding acceptance of his resignation by the Deputy Speaker/Acting Speaker of the Sindh Assembly was void and unconstitutional as he had never resigned from the Speakership of the Sindh Assembly. Other Constitutional petitions relating to his resignation and other members were fixed on 30-11-1992 and, according to the memo. of petition, the petitioner informed the Chief Justice that on account of his ill-health he would not be able to attend the Court proceedings on 30-11-1992 in the petition where he was a party as a respondent. On 1-12-1992, the petitioner filed a review application in Constitutional Petition No.2543/92 praying that the judgment dated 30-11-1992 in the said Constitutional Petition be set aside and that the matter be heard on merits. It may be mentioned here that Constitutional Petition No.2543/92 had been filed by Syed Qaim Ali Shah, Leader of the Opposition in the Sindh Assembly against Abdul Razique Khan and others in which it was prayed that the office of the Speaker held by Abdul Razique Khan had fallen vacant and the Deputy Speaker Atta Muhammad Marri should intimate the Election Commission of Pakistan about the vacancy and holding of election of a 'new Speaker. The said petition was disposed of by judgment dated 30-11-1992 on which date copy of the notification dated. 28-11-1992 of the Deputy Speaker was placed on record which was to the following effect:-- "Under Article 64 read with Article 127 of the Constitution of the Islamic Republic of Pakistan, Mr. Abdul Ra7ique Khan, MPA, has resigned his seat from Constituency PS-76 Karachi (W)IV. Thereupon, the seat has become vacant with effect from 27th June, 1992." As observed, petitioner Abdul Ra7lque Khan, on 1-12-1992, had filed a review application in the said Constitutional Petition No.2543/92 but then he filed the present Constitutional Petition on 3-12-1992 and as such the said review application was dismissed as infructuous by order dated 3-12-1992 passed in Petition No.2543/92.

3. A letter of resignation, alleged to be signed by the petitioner, was presented to the Deputy Speaker on 27-6-1992 and the Deputy Speaker/Acting Speaker Atta Muhammad Marri started holding an enquiry as to the validity of the said resignation letter along with various other resignation letters of other M.O.M. M.P.As. In the present Constitutional petition, the petitioner has relied upon his letter dated 12-7-1992 addressed to the Governor of Sindh whereby he had informed the Governor that his alleged resignation from the Speakership as well as from the Membership of the Sindh Assembly be considered only after his personal appearance and complete satisfaction as to the voluntariness of the said resignation. The petitioner also relied upon his telegram dated 29-11-1992 addressed to the Chief Justice, referred earlier in this judgment.

4. The petition has been contested by the respondents Nos. 2, 3 and 4, namely, the Deputy Speaker, Shamim Ahmad and Syed Oaim Ali Shah represented by M/s. Muhammad Ali Sayccd, Nasim A. Farooqi and Iqbal Haider, Advocates, respectively. _

5. The original record had been summoned from the office of the Deputy Speaker and the same was presented before the Court by Mr. Zakir Hussain Mirza. The resignation letter dated 27-6-1992 alleged to have been received from the petitioner Abdul Razique Khan reads as follows: Copy of letter dated 12-7-1992 alleged to have been addressed by the petitioner to the Governor -of Sindh with a copy to the Deputy Speaker and other persons is also reproduced here:-- To, The Governor of Sindh, Governor's House, Karachi. Dear Sir, I would like to invite your kind attention to the news items which have appeared in the daily newspapers with regard to my resignation from the Speakership as well as Member of the Sindh Assembly and to inform you that my resignation should only be considered after my personal appearance and your complete satisfaction with regard to volunlariness of the, resignation. Yours sincerely, (Sd.) (ABDUL RAZIQUE KHAN) Speaker, Provincial Assembly of Sindh Karachi. Copy forwarded to the Deputy Speaker, Provincial Assemby of Sindh, Karachi for similar action as requested above." The record shows that, on the resignation dated 26-7-1992, the Deputy Speaker made the endorsement "Issue Notification" on 28-12-1992 and, thereafter, the notification was issued to the effect that the seat held by petitioner Abdul Razique Khan had fallen vacant.

7. On behalf of the Deputy Speaker, a counter-affidavit has been filed by the Assistant Secretary (Proceedings) of the Provincial Assembly, Sindh, in which it is averred that the resignation letter dated 26-7-1992 addressed to the Deputy Speaker had been received but, in view of the extraordinary circumstances prevailing at the time when the resignations of M.O.M. members were received, there was a clear possibility that all of them could not be voluntary and genuine and, therefore, the Deputy Speaker deferred action on the said letters of resignation until there was acceptable confirmation of the intention to resign and for this purpose the Deputy Speaker through a press statement asked the persons whose resignations had been received to appear before him personally and to confirm or to dispute the resignations. According to the Deputy Speaker, several undated letters were received purporting to withdraw the resignations and on examination their signatures on such letters and the original letters of resignation and also on a comparison with the specimen signatures available in the record of Assembly it became apparent that the subsequent letters did not bear the signatures of the persons seeking to dispute their resignations. According to the Deputy Speaker, telephone calls were also received in this behalf but it was impossible to identify the voices on the telephone in several cases. According to the Deputy Speaker, he adopted the procedure that in all those cases in which the persons whose resignations had been received should appear personally to dispute their resignations or where there was identifiable telephone calls resiling from their resignations, the Deputy Speaker did not give effect to the resignations, and other remaining cases were kept pending. On behalf of the Deputy Speaker, it is stated that an undated letter written in English and purporting to have been signed by the petitioner was received in the office of the Deputy Speaker perhaps on 13th or 14th of July 1992 but the said letter was addressed to the Governor of Sindh and a copy was marked,, inter alia, to the Deputy Speaker. According to the Deputy Speaker, as in several other similar cases there was every reason to doubt the genuineness of the petitioner's signatures in this letter as well and this seemed to be apparent from a comparison of the petitioner's signatures on the said letter with his signatures on the resignation letter or with his other signatures in the official record, and, in the circumstances, the said letter disputing the resignation was also not considered as a genuine letter and the petitioner himself did not appear personally before the Deputy Speaker nor he talked on telephone with the Deputy Speaker. Para.7 of the counter-affidavit filed on behalf of the Deputy Speaker may here be reproduced:-- "7 The second respondent submits that on-- when Petitions 2543/1992 2592/1992 and 2599/1992 were fixed for hearing the learned Bench, was pleased to direct the second respondent to let the Court know by or before the 30-11-1992 the action taken on the resignations and on 26-dl-1992 the second respondent had also filed a statement before the Court that decisions in respect of the remaining resignations would be taken by the end of November 1992. Thereafter, on 23-11-1992 a News Item was also published in the Daily Nawa-i-Waqt of Karachi that final decisions on the remaining resignations would be taken by the second respondent till,the 28th of November, 1992. Similar statement was published in the Daily Newspaper 'Jang' of 23-11-1992. Copies of these News Items are filed herewith. The second respondent submits that neither did the petitioner call on the second respondent nor was any communication received from him. And on the 28th of November 1992, nine resignations including the petitioner's resignation, were accepted and requisite notification issued." According to the Deputy Speaker, the action taken by him in the issuance of the notification dated 28-11-1992 giving effect to the re sipation letter of the petitioner dated 27-6-1992 was a correct and bona ride decision.

8. Respondent No.3 has filed his personal affidavit in which he has stated that resignation was tendered by the petitioner voluntarily but later on, on account of having changed his political loyalties, the petitioner has taken a belated stand that he had not resigned. Respondent No.4 also filed his counter-affidavit in which it is stated that resignation had been tendered by the petitioner and he was taking an obviously false stand now that he had not resigned. A rejoinder affidavit has been filed in which the petitioner has reiterated his stand. Petitioner's case it may be repeated, is that he had gone underground and as far as back 12-7-1992 he had sent a letter to the Governor with a copy to the Deputy Speaker that he had not resigned. 9. in the petition, petitioner Abdul Razique Khan has not denied his signature on the resignation letter. Mr. Syed Sami Ahmed had first contended that the resignation of the petitioner, on the basis of which the impugned notification dated 28-11-1992 had been issued, was not addressed to the Speaker having been addressed only to the Assembly and it was also undated. According to learned counsel, the resignation should have been addressed to the Speaker under Article 64(l) of the Constitution. Photostat copy of the resignation letter, filed alongwith memo. of petition, no doubt, shows that it is addressed only to the Sindh Assembly and not to its Speaker or Deputy Speaker, but the original record summoned from the Secretary of the Assembly shows that the resignation is dated 27-6-1992 and addressed to the Deputy Speaker of the Sindh. The submission of the learned counsel for the petitioner that the resignation is only addressed to the Assembly is, therefore, of no substance. The other objection that the resignation should have been addressed to the Speaker and not to the Deputy Speaker is also without merit. In this case, petitioner Abdul Razique Khan was himself the Speaker and naturally he could not address the letter of resignation to himself and as such it was addressed to the Deputy Speaker, who was acting as the Speaker. In Article 260 of the Constitution dealing with the definitions, the word "Speaker" has been defined to mean the Speaker of the National Assembly or Provincial Assembly and includes any person acting as the Speaker of the Assembly.

10. The next submission of Mr. Syed Sami Ahmed, learned counsel for the petitioner, was that the letter dated 12-7-1992, addressed by the petitioner to the Governor with a copy to the Deputy Speaker was not considered at all and no enquiry was held in respect of that letter. As noticed earlier in this judgment, on behalf of the Deputy Speaker it was averred that an undated letter written in English and purporting to have been signed by the petitioner was received in the office of the Deputy Speaker on 13th or 14th July, 1992, but he said letter was addressed to the Governor of Sind ' h and a copy was marked to the Deputy Speaker. According to the Deputy Speaker, the petitioner had not come forward and there was no communication from him and as such he compared the signatures of the petitioner available in the record of the Assembly and on the resignation letter with the signatures on the letter received in July, 1992, allegedly from the petitioner and, from such comparison, it was found that the signatures differed and as such the Deputy Speaker did not consider the said letter as a genuine letter. According to the Deputy Speaker, the petitioner neither appeared before the Deputy Speaker nor he talked on telephone with the Deputy Speaker. In the circumstances, in our view, no illegality has been committed by the Deputy Speaker in ignoring the said letter.

11. According to Mr. Syed Sami Ahmed, the enquiry contemplated by law had not been conducted by the Deputy Speaker and as such the impugned notification dated 28-11-1992 is illegal. However, learned counsel for the petitioner has not been able to specify as to what type of enquiry should have been held by the Deputy Speaker in connection with the resignation of the petitioner received by him. The resignation was received in June, 1992. Apart from the letter of July 1992, from the petitioner, in respect whereof we have held that no illegality was committed by the Deputy Speaker in ignoring such letter, there was no communication whatsoever from the petitioner with the Deputy Speaker. The petitioner has only stated in his petition that he had gone underground and he "re-surfaced" on 29-11-1992, after the statement in the Press by Mr. Azeem Tariq, Chairman of M.Q.M. that members of the party should now come out in the public. It is not the case of the petitioner that he was during all this period of confinement hiding at a place or places where there was no means of communication available to him. The fact that he became aware of the statement given to the Press by Mr. Azeem Tariq confirms the fact that either newspapers and/or Radio/TV facilities were available to the petitioner and, therefore, he must have been aware of the news about his resignation letter having been received by the Deputy Speaker and the Deputy Speaker awaiting a contact from the petitioner. The petitioner has also not set up a case that no person or persons were available who could communicate any message or letter from him to the Deputy Speaker. At no point of time, from June, 1992, to 28-11-1992, any contact was made by the petitioner with the Deputy Speaker which could easily have been made. The Deputy Speaker could not wait indefinitely for the petitioner to re-surface and then contact the Deputy Speaker. The petitioner must have been aware of the resignation letter having reached the Deputy Speaker and it was, therefore, his responsibility to contact the Deputy Speaker as soon as possible and inform him about any defect in the resignation letter or that the resignation letter had not been tendered by him costs.

12. In the circumstances, we are of the view, that no case has been made out by the petitioner for interference with the Notification issued on 28-11-1992 by the Deputy Speaker/Acting Speaker giving effect to the resignation of the petitioner. As a result C.P.No.3010/1992 is- dismissed but with no order as to The interim order restraining the holding of the bye-elections on the seat, which has fallen vacant on account of the resignation of the petitioner, stands recalled. A.A./A-1325/K Petition dismissed