1993 PLP 1127 (MLD)

12. We are of the view, that time within which an inquiry is to be conducted which. is necessary to resolve the doubt in respect of the genuineness and voluntary nature of the resignations received by the Speaker is not fixed B but from this it does not follow that the inquiry can be prolonged for a long period. Article 224(4) of the Constitution requires bye‑elections to take place within 60 days of occurrence of vacancy, also been confirmed that the entire exercise of holding bye‑election starting from the issuance of the initial notification takes about 36 to 40 days. If the Constitutional mandate is to be fulfilled, the inquiry is required to be completed within a matter of about 20 days, so that in case it is found that the resignation is genuine and is to be given effect, bye‑election can be held within 60 days of occurrence of vacancy and the vacancy will be deemed to have occurred on the date the resignation reaches the Speaker, No doubt, there can be circumstances, where it may be absolutely impossible to complete the inquiry within 20 days but then it must be established that the inquiry could not possibly have been completed within about 20 days to enable the bye‑elections to be held within 60 days of the occurrence of the vacancy.

13. We may also refer to para. (g) of the order passed in the case of Muhammad Naeem Akhtar v. Speaker, Sindh Provincial Assembly 1992 CLC 2043, where it was held that if the petitioners (resigning members) 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have given a public statement or written a letter to the Speaker to that effect declaring that the resignations are no longer valid and should not be acted upon. In the, said judgment, it had been noticed that this was not done by the petitioners. It was noted that the resignations in that case 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 became 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.

14. Great responsibility is also placed on the member whose resignation has reached the Speaker, the news whereof has been made public through the news media. If he wants to challenge the validity of his resignation on the ground that it was either not his resignation or that the same had been obtained under duress or coercion, he is required to either contact the Speaker immediately informing him about the defects in the resignation letter or if it is not possible for him to contact the Speaker to give a public statement pointing out the defects in the resignation letter.

15. The case of respondents Nos.3 to 7 is that they had given their resignations under duress and coercion and immediately after giving resignations they had to go underground to avoid danger to their lives. No case has been made out that it was not possible for respondents Nos.3 to 7 to contact the Acting Speaker or send an intimation to him through someone else informing him about the defects in the resignation letters. It is also not the case of the respondents that they were hiding at a place or places where newspapers or other facilities of Radio or TV were not available. It has, therefore, to be assumed that immediately the resignations reached the Acting Speaker and the news of this en bloc resignations was reported on front pages of practically all the newspapers of Karachi with big headlines, the respondents Nos.3 to 7 became aware that their resignations had reached the Acting Speaker. In case the said resignations had not been given voluntarily, it was necessary for them to have informed the Speaker about such defects immediately or as soon as possible. As observed, no case has been made out that the message could not D have been sent to the Acting Speaker about the coercion and duress under which, according to the private respondents, the said resignations were obtained from them.

16. In the case of respondents Nos.3, 4 and 5 namely Syed Hashim Ali Haji Shafiur Rehman and Syed Shahid Mian, the Notifications were issued by the Acting Speaker on 18‑10‑1992, which means that the "inquiry" by the Acting Speaker lasted nearly four months. In our view, the Acting Speaker did not discharge his Constitutional responsibilities of completing the inquiry as early as possible and delayed it for nearly four months, for which the explanation given by him and by respondents Nos.3, 4 and 5 cannot be accepted. The Acting Speaker was required to finalise the inquiry as soon as possible. The files produced by the Secretary of the Assembly do not indicate as to what was the Acting Speaker doing for this period of about four months. If resignation letters had been received ands news about it had been published in the newspapers‑prominently and respondents had not contacted him to challenge the validity of their resignations, the. Acting Speaker was bound to close the inquiry and issue the notifications giving effect to the said resignations, especially, in view of the time frame provided by Article 224(4) of the Constitution. It may be added that according to the Deputy Speaker respondents Nos.6 and 7 contacted him for the first time on 18‑10‑1992. Prior to that, news had appeared in the newspapers about appearance of respondents Nos.3, 4 and 5 and their alleged .support to the Government in power in the Sindh Province. If at all respondents Nos.3, 4 and 5 were in hiding and could not contact the Speaker on account of threat to their lives, being aware of the resignations having reached the Speaker as far back as 29th and 30th June, 1992, respondents Nos.3, 4 and 5 were expected to contact the Acting Speaker immediately or write a letter to him about the defects in their resignations. However, this is not done, but according to the newspapers reports, which are on record, respondents Nos. 3, 4 and 5 first declared their support to the Government and after several days of these reports contacted the Acting Speaker. In the counter‑affidavit on behalf of the Deputy Speaker, it was stated that he had gone out of the country in the middle of September and came back on 18‑10‑1992. If the Acting Speaker was not available in his office, the first act on the part of respondents Nos.3,,4 and 5 should have been to make a public statement that they have now come out of hiding and that the resignations which had been submitted to the Acting Speaker in June, 1992, had been obtained under duress and coercion. As observed, this w as not done but first the support to the Government was declared. We also cannot appreciate the conduct of the Acting Speaker in going out of the country for one month without finalising the question of resignation. Keeping in mind the time frame provided in Article 224(4) of the Constitution, the Acting Speaker instead of taking a decision as early as possible to enable the Constitutional mandate to be fulfilled, dragged his feet prolonging the inquiry and even went out of the country for about one month. Persons holding such responsible positions are expected to act with more responsibility especially keeping in view the constitutional mandate of holding bye‑elections within 60 days of occurrence of vacancy. Identical letters dated 18‑10‑1992 are available on the record of the Assembly produced before this Court. These letters are addressed to the Speaker and given to him in the meeting of respondents Nos.3, 4 and 5 with the Speaker on 18‑10‑1992. The identical letter written by all the respondents Nos.3, 4 and 5 separately, is reproduced here: "To The Speaker PAS. Subject: Resignation. Sir, I have appeared before you to inform you that the resignation tendered on my behalf was obtained from me by force. I had no intention to resign and I now reiterate that no action should be taken on that resignation application and continue to remain as Member of the PAs. (Sd.) 18‑10‑1992."

17. In our view, the aforesaid letters were written by respondents Nos. 3, 4 and 5 to complete the formality of the inquiry being conducted by the Acting Speaker. In our view, the respondents Nos.3, 4 and 5 had tendered their resignations voluntarily of else they would have made a public statement or contacted the Acting Speaker immediately on the news of the resignations having reached the Speaker being published or in any case immediately on coming out of hiding which admittedly was not done. It also follows from the facts and circumstances stated above that once a decision had been taken by respondents Nos.3, 4 and 5 to support the Government, the decision was given on 18‑10‑1992 by the Speaker that the respondents Nos.3, 4 and 5 had not resigned voluntarily and for that purpose the aforesaid letters dated 18‑10‑19)2 had been obtained. Here, we may reproduce the order dated 18‑10‑1992, passed by the Acting Speaker: "M/s. Hashim Ali, Syed Shahid Mian and Haji Shafiqur Rehman M.PAs. have appeared before me personally and filed the statements that the resignations were obtained from them by force, under duress and coercion. They had neither any intention to resign nor had they authorised anybody to submit the resignations on their behalf. After hearing the members and considering the statements filed by them I am satisfied that the alleged resignations cannot be treated as voluntary, as the members from the very beginning had no intention to resign and that the same as per their statements were obtained from them under coercion and duress. Unless the resignations are voluntary and genuine, they cannot take effect and are to be treated as nullity in the eye of law. Support for this view can be had from the decision reported in PLD 1976 SC

504. In view of the above I hold that the alleged resignations are not valid and the members would not be deemed to have resigned from their seats in the Assembly. Accordingly they continue to be members of the Assembly. (Sd.) 18‑10‑1992 ACTING SPEAKER." For the facts and reasons mentioned above, in our view, the aforesaid order, dated 18‑10‑1992 cannot be sustained under the law.

18. The case of respondents Nos.6 and 7 is not different to the case of respondents Nos.3, 4 and 5, except that the letters were written by respondents Nos.6 and 7 on 1‑8‑1992 to the Speaker who passed the orders on the same day as follows:‑‑‑ "M/s. Abdul Salam and Aijaz Ahmed appeared personally before me and filed the statements that they had no intention to resign from membership of the Assembly and that they continue to remain as members of the Assembly. Mr. Abdul Salam has further stated that he had not tendered any resignation from the membership of Assembly and that any such resignation received on his behalf should not be accepted unless verified by him. After hearing the members and considering their statements, I am satisfied that the alleged resignations, not being genuine and voluntary, cannot be treated as valid resignations. The resignations unless they are voluntary and genuine cannot take effect and are to be treated as nullity in the eye of law. Support for this view can be had from the decision reported in PLD 1976 SC

504. In view of the above I hold that the alleged resignations are not valid and the members would not be deemed to have resigned from their seats in the Assembly, Accordingly they continue to be members of the Assembly . (Sd.) 1‑8‑1992 (ACTING SPEAKER)." Respondent Aijaz Ahmed Khan had written the following letter on 1‑8‑1992, to the Speaker : (sd.) 1‑8‑1992 In this letter, there is not even any mention of coercion or duress. On the contrary, he has written that the. resignation given by him should not be accepted. Aijaz Ahmed Khan, therefore, wanted to withdraw the resignation tendered by him in June, 1992, by his letter dated 1‑8‑1992. But the resignation cannot be withdrawn once it has reached the Speaker, as under Article 64 read with Article 127 of the Constitution, as soon as the resignation reaches the Speaker, it takes effect immediately and there is no provision, as in the Indian Constitution, about the acceptance of the resignation. The letter dated 1‑8‑1992, written by Abdul Salam Shaikh, respondent No.6, is as follows:‑‑‑ (sd.) 1‑8‑1992 In this letter also, there is no mention about the resignation having been obtained under duress or coercion. In his counter‑affidavit, he does not dispute his signature on the resignation letter but stated that he was forced to sign his resignation letter. However, in his letter dated 1‑8‑1992, he stated that he had not given any resignation letter and in case any resignation letter has been received, it should not be accepted unless it is confirmed by the respondent No.6. In the case of respondents Nos.6 and 7 also their appearance in public was several days earlier than 1‑8‑1992, according to newspapers' reports on record. According to the said reports, respondents Nos.6 and 7, on their first appearance supported the Government and after several days, on 1‑8‑1992, they met the Acting Speaker and gave the aforesaid letters. We find no difference in the cases of the respondents Nos.3, 4 and 5 and respondents Nos.6 and 7. 19. (a) There are several other points, which may be dealt with here. It had been contended by Mr. Muhammad Ali Sayeed that during the period when the inquiry was in progress and a final decision was yet to be taken by the Speaker on the resignation letters, the private respondents could withdraw their resignations and reliance was placed on the principle of locus poenitentiae. In our view, there is no substance in this submission, as the principle of locus poenitentiae is not applicable to these enquiries. In the light of the law laid down by the Supreme Court, it may be observed that the scope of the inquiry to be conducted by the Speaker is limited to consideration of two matters, namely, genuineness of the resignation or its voluntary nature. During this enquiry the resigning members cannot withdraw their resignations which would amount to negating the provisions of Article 64(1) of the Constitution, according to which the resignation takes effect on the same being tendered to the Speaker. (b) The other question relates to reliance upon newspaper reports. Reference may be made to the case of Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, in which it was held that newspapers reports of contemporaneous events are admissible in evidence particularly when such events are of local interest or of such public nature as would be generally known throughout the community and the person not availing the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in the newspapers cannot complain if that publication is used against him. Newspapers reports have been relied upon by the private respondents themselves in their counter‑affidavit. Alongwith rejoinder, copies of the newspapers' reports have been annexed. It is an admitted position that news about the appearance of the private respondents in public and giving their statements in support of the Government before writing the aforesaid letter dated 1‑8‑1992 and 18‑10‑1992 to the Speaker regarding withdrawal/not giving, effect to their resignation have not been contradicted by the private respondents. (c) It had been contended by Mr. Sharaf Faridi that the petitioner had not challenged the order, dated 1‑8‑1992 of respondent No.l in respect of respondents Nos.6 and 7 (and also order dated 18‑10‑1992 in respect of respondents Nos.3, 4 and 5), in which orders, it has been held that the resignations of the private respondents are not valid. It may be observed here that copies of these orders were not available to the petitioner and it was only when the counter‑affidavits were filed with the copies of the said orders that the same came on record. As the present petition had been filed in the nature of quo warranto also and the question of private respondents' resignation being valid or not, has been considered, we are of the view that this petition does not fail on account of the aforesaid orders not being specifically challenged. (d) Mr. Sharaf Faridi has also raised the objections relating to laches. We are of the view that this petition is not liable to be dismissed on account of laches. The contention of learned counsel that the petitioner is estopped from challenging the membership of the Sindh Assembly of the private respondents has also no merit. (e) It was also submitted by Mr. Sharaf Faridi that the order passed by the Acting Speaker is not justiciable as this Court cannot hold a detailed inquiry in order to find out as to whether, the resignations of the private respondents were voluntary or genuine. We find no substance in this contention. We have decided this petition on the basis of available record and more or less admitted positions. (f) The other contention raised by Mr. Sharaf Faridi was that the plea of alleged defection on the part of the private respondents has not been taken by the petitioner. We are not deciding this petition on the basis of defection or horse‑trading. In our view, the Speaker is not competent to declare that a sitting member of the Assembly has ceased to be a member and his seat has become vacant on the ground that he has defected or to put it differently that he has indulged, in horse‑trading or conscience vending. On this ground, approach has to be made to the Election Commission under section 8‑B of the Political Parties Act, 1962. We have decided this petition on the basis of available record. For the facts and grounds mentioned earlier, in our view, the orders of the Acting Speaker that the private respondents had not resigned and continue to be members of the Assembly are illegal."

20. As a result, this Constitutional petition is allowed to the extent that the orders dated 1‑8‑1992 and 18‑10‑1992 of the Acting Speaker not giving effect to the resignations of the respondents Nos.3, 4, 5, 6 and 7, are declared to be without lawful authority and of no legal effect. Acting Speaker is further directed to issue notifications giving effect to the resignations of respondents Nos.3, 4, 5, 6 and 7 and declaring their seats vacant, so that bye‑elections against the said seats may take place. In so far as respondent No.3, Syed Hamid Ali is concerned, we have allowed C.P. No.D‑670 of 1992, filed by Badar lqbal, and as such it may not be necessary to hold bye‑election against the seat held by Syed Hamid Ali. Great delay has already taken place in the holding of bye‑elections. Acting Speaker is, therefore, directed to issue the said notifications immediately to enable the bye‑elections to take place. There will be no order as to costs. M.BA./Q‑77/K Order accordingly.