1992 PLP 2043 (CLC)

NASIR ASLAM ZAHID, J.‑‑‑After hearing learned counsel for the parties and also Mr. Ikram Ahmad Ansari, Deputy Attorney‑General, we have reached the following conclusions:‑ (a) This petition is maintainable under Article 199 of the Constitution and is not barred by Article 69 of the Constitution read with Article 127 as, in our view, the action of the Speaker of the Assembly in accepting the resignations of the three petitioners from the membership of the Assembly neither comes within the meaning of the term "any proceedings in the Provincial Assembly' used in clause (1) of Article 69 (read with Article 127) nor such action can be described as an exercise of power by the Speaker for regulating the procedure or the conduct of business in the Assembly under clause (2) of Article 69. (b) This petition is also not liable to be dismissed on the ground that bye‑elections for the 3 seats falling vacant, pursuant to the resignations of the petitioners, are being held in the next two days on 2‑5‑1992. (c) There is a distinction between Article 64 of our Constitution and the comparable Article in the Indian Constitution which is Article 190(3) (b). Article 64 of our Constitution does not require acceptance by the Speaker of the ,resignation tendered by a member of the Assembly as, according to clause (1) of Article 64, when a member by writing under his hand addressed to the Speaker resigns his seat, his seat thereupon becomes vacant, but Article 190 (3) (b) of the Indian Constitution requires acceptance of the resignation by the Speaker for the resignation to become effective. While placing reliance on judgments from the Indian jurisdiction, this important distinction is to be kept under consideration. Clause (1) of Article 64 of our Constitution does not require acceptance of the resignation by the Speaker for the resignation to become effective and as a consequence the seat becoming vacant but from this it does not follow that the Speaker has no role at all to play in this exercise of resignation. In case the Speaker has any doubts about the genuineness or voluntary nature of the resignation received by him, or he receives information from the concerned member or on .his behalf that the resignation is not genuine or has not been given voluntarily, the Speaker is then required to hold an inquiry to satisfy himself as to the genuineness or voluntary nature of the resignation and if in such inquiry he finds that the resignation is not genuine or voluntary, he will record such finding, in which event resignation will become ineffective and the member will continue to retain his seat. In case the Speaker has no reason to doubt the genuineness or voluntary nature of the resignation received by him and he also does not receive, any intimation 'either before the receipt of the resignation or within reasonable time of such receipt from the concerned member or on his behalf that the resignation is not genuine or voluntary or that it is not to be acted upon, there would be no requirement for the Speaker to hold any inquiry and the resignation in such a situation would become effective with the consequence of the seat falling vacant. (c) In the present case, various allegations were made against respondent No.3, Mr. Altaf Hussain. Petitioners withdrew their petition against .respondent No.3 on 9‑4‑1992 and, by order passed on 9‑4‑1992, this petition, as against respondent No.3, was dismissed as withdrawn. Petitioners, therefore, cannot rely upon any allegation made in the petition against respondent No.3. (f) In the present case, it is the case of the petitioners themselves that they had written and signed their resignation letters and this was also done by all other members of the political party to which they belonged and the undated resignation letters were handed over to their leader Mr. Altaf Hussain (respondent No.3). According to the petitioners, however, those resignation letters were given to the leader of the party to express their allegiance and complete confidence in the leadership of the party and that the resignation letters were not to be communicated to the Speaker. 1t has also been their case that the three petitioners were coerced to give their resignation letters. It has not been established that the petitioners gave their resignation letters under any coercion. We are also of the view that the resignations were given by the three petitioners and other members of the party with the understanding that the same could be tendered to the Speaker on behalf of the members, who had given the resignation letters, at any later stage and that the said letters were given to maintain loyalty of the members to the party, which is sine qua non for the working of a parliamentary multiparty system and to restrain the members of the party from crossing the floor in the Assembly for ulterior motives, personal gains or under pressure, for which there is no law at present in force. (g) If the petitioners wanted to back down on or retract from their resignations, they should have given a public statement or written a letter to the Speaker to that effect declaring that the resignations are no longer valid and should not be acted upon. This admittedly was not done. Resignations were submitted to the office of the Speaker on 19‑6‑1991 and news about the resignations was flashed in the newspapers the same day or next day and the petitioners become aware of the same but did not inform the Speaker immediately about any defects in the resignation letters or that the same were not to be acted upon. (h) The two main judgments of the Supreme Court in the case of Mirza Tahir Beg (PLD 1976 SC 504) and unreported judgment of the Peshawar High Court in W.P. 1218/1991 in the case of Rahmatullah Khan are distinguishable. As a result, we find no merit in C.P. No.D‑936 of 1991 which is dismissed but with no order as to costs. Misc.1232/1992 for interim relief has become infructuous. Detailed judgment will follow. A.A./M‑1651/K Petition dismissed