P L D Supreme Court 105 (PLP)

The President of Pakistan Sir, I resign from the Membership of the National Assembly due to political situation in the country and my domestic affairs. Please kindly accept it and oblige. Yours sincerely, (Sd.) Shah Nawaz, M. N. A. 24‑4‑1964." The method by which this letter was conveyed to the President is not apparent from the record, but it seems that it was made over to Mr. Kazmi, the Secretary of the National Assembly, on the 9th of May 1964, when he happened to see the President on that date. The Speaker of the National Assembly was out of the country at the time, having gone on Haj pilgrimage. In the meantime, the first respondent sent a telegram, dated the 27th of April 1964, to the Speaker, which is in the following terms:‑ "Honourable Speaker, National Assembly Pakistan Pindi. Have not resigned from Membership of National Assembly Pakistan‑ detailed letter follows Shahnawaz, M. N. A., Montgomery." A letter bearing the same date was also sent to the Speaker by the respondent, in which he explained that he had not resigned from the membership of the National Assembly of Pakistan, that the letter which he had written to the President was merely intended as the respondent's resignation from _ the membership of the Council Muslim League National Assembly Party and that he had, by inadvertence, failed to make that clear. He stressed that if his intention had been to resign from the membership of the Assembly he would have addressed the Speaker in that behalf as required by the Constitution. He warned the Speaker that if any‑ letter came to him purporting to be his resignation from membership of the National Assembly, this should not be accepted as his resignation, as he disowned it and strongly protested against it. This was followed by another telegram dated the 29th of April addressed to the Speaker in which again he strongly repudiated any intention to resign from the Assembly. The Speaker returned to this country and the letter of resignation addressed to the President, the two telegrams and the letter addressed to the Speaker, were all placed before him on the 19th of May 1964. The Speaker got a notification published in the Extraordinary Gazette of Pakistan, dated the 20th of May 1964, declaring that Mr. Shah Nawaz had resigned his seat in the National Assembly within the meaning of clause (a) of Article 107 of the Constitution. Consequent action was taken by the Chief Election Commissioner, following this notification. The respondent challenged the vires of this notification by a petition under Article 98 of the Constitution preferred to the High Court of West Pakistan. He asked for a declaration that the said notification was without lawful authority and of no legal effect and that the consequential action taken by the Chief Election Commissioner to fill the seat by calling for nominations of candidates and fixing dates for polling, was also without lawful authority and of no legal effect as the seat had not become vacant. He further prayed that a direction be issued to the Speaker not to obstruct or interfere with the continuous functioning of the respondent as Member of the National Assembly and that he be ordered to acknowledge the continued status of the respondent as Member of that Assembly, by cancellation of the notification in question. In addition, he sought the relief that the Chief Election Commissioner who was impleaded as the second respondent to the petition, be directed not to hold any election in respect of the petitioner's seat in the National Assembly. The High Court were not prepared to give credence to the plea raised on behalf of the respondent that when he wrote the letter to the President, he did not intend to resign. The learned Judges pointed out that the petitioner was a Graduate and there was no scope for the argument that by inadvertence he had failed to make it clear that he was merely resigning from the Council Muslim League National Assembly Party rather than from the Assembly itself. It was, however, held that the letter in question, not being addressed to the Speaker of the National Assembly, as required by Article 107 of the Constitution and no decisive step having been taken in pursuance of it, before it was withdrawn by the petitioner, did not take effect as a resignation. The plea was taken on behalf of the Speaker that the matter was not justiciable in view of the bar of jurisdiction raised by Article 111 of the Constitution. This plea was repelled on the ground that the matter did not concern the proceedings of the National Assembly. The learned Judges went on to observe that the mere writing of the resignation would not become effective, even if it had been properly addressed to the Speaker, unless it was brought to his notice and that the writer had the locus poenitentiae to withdraw his resignation, before the letter had reached the Speaker. Whether non‑compliance with the requirement of the Constitution in respect of such a letter being addressed to the Speaker, constituted an incurable infirmity in the situation or not, was a question on which they did not consider it fit to express a final opinion, though they were inclined t$ think that this was an essential requirement. The petition of the respondent was therefore allowed and it was declared that his seat in the National Assembly had not fallen vacant and that the notification issued by the Speaker was without lawful authority. The respondent, it was further declared, continued to be a Member of the National Assembly with the necessary consequence that the election of the third respondent, Mr. Noor Muhammad, to the seat occupied by him, was of no legal effect. The relevant provision in the Constitution bearing on the point involved in this case, is contained in Article 107, which may be extracted as follows:‑ "

107. The seat of a member of an Assembly shall become vacant if‑ (a) he resigns his seat by notice in writing under his hand addressed to the Speaker of the Assembly." The letter that the respondent wrote in the present case is not, in terms, covered by clause (a) of Article

107. It was undoubtedly written by the respondent in person, but it was not addressed to the Speaker of the Assembly but to the President. It contained no request that the letter may be passed on to the Speaker. On the contrary, it expressly requested the President to accept his resignation. It is, therefore, difficult to sustain the argument raised by Dr. Nasim Hasan Shah, on behalf of the appellant, that there was substantial compliance with this provision of the Constitution. It is hardly possible to spell out an intention from the wording of the letter itself that it was to be passed on to the Speaker of the Assembly. We are dealing in this case with the action of a Member of an Assembly divesting himself of his status as such Member, by voluntary and unilateral action. All the formalities prescribed by clause (a) Article 107 should be fulfilled before the grave result of vacation of a Member's seat should follow such action. The respondent's position, therefore, that this was not a letter of resignation falling within the purview of this provision, apparently rests on a solid foundation. It is contended that his‑ own action, in repudiating the contents of his letter in his two telegrams and the letter addressed to the Speaker, supported the inference that the respondent must have originally intended his letter for the Speaker. But this is not the only possible explanation of this fact. He may have been advised that the President may pass on the letter to the Speaker and he may have become apprehensive that the Speaker might act on it. In order to forestall any such action, he took the precaution of sending two telegrams and a letter, making it clear that he had no intention of resigning his seat. Dr. Nasim Hasan Shah maintained before us that on the wording of Article 107 of the Constitution, a letter of resignation which complies with the conditions mentioned in that Article, c would automatically take effect and would not require acceptanc4 by any authority. This statement is correct so far as it goes. Learned counsel, however, was constrained to admit that the letter of resignation would only be effective when it reaches the Speaker. He further conceded that if, during the course of its transit, it could be intercepted, so as to prevent its reaching the Speaker, the resignation would not mature. There was thus a locus poenatentiae available to the respondent. It was suggested, however, that once the letter of resignation had been put in transmission, so as to go beyond recall of the writer, it could not have been withdrawn. The proposition thus put forward assumes that the letter in the course of its transmission could A. K. not have been arrested in its course so as to prevent communication of its contents to the relevant authority, namely, the Speaker. If such a letter is sent by post, the possibility is still open that, before it is delivered to the addressee, it may be withheld at the instance of the sender, by the Postal authorities; on the latter being satisfied that the sender did not want it to be delivered at its destination. The Post Office acts in such a case as agent of the sender and not of the addressee. Again, if the letter is sent through a messenger and the sender changes his mind, ‑ follows the messenger and overtakes him by a quicker means of transport, so as to prevent him reaching his destination, the resignation, admittedly, would not take effect. Communication, to the Speaker, therefore, is an essential ingredient of the application of Article 107 of .the Constitution. Learned counsel also fairly acknowledged that if instead of merely intercepting such a messenger and taking steps to prevent the delivery of the letter to the Speaker, the sender had taken the letter from the messenger and altered it, so as to make it a letter of resignation from the Council Muslim League Assembly Party instead of from the Assembly itself, the letter thus amended, would not entail the consequence of vacation of the sender's seat in the Assembly, even if it reached the Speaker. Now, in the circumstances of the present case, the position does not appear to be dissimilar to this hypothetical instance. What has happened is that the respondent sent a letter to the President and realizing that it may be passed on to the Speaker, he anticipated that even and sent a correction to the Speaker, long before the original letter could have reached him. The two letters and the two telegrams sent by the respondent, were together put up to the Speaker and it appears to us that it was the bounden duty of the Speaker to construe the documents together, to arrive at the intention of their sender. Whether the amendment in the letter is made in the document itself or by means of an additional document attached to it, true result would be identical. The only conclusion that could have' been legitimately reached by the Speaker, therefore, was, after a consideration of these documents together, that the respondent had not resigned his seat in the Assembly. Our attention has not been invited to any provision of law or the Constitution under which power vested in the Speaker to decide whether the legal consequences envisaged by Article 107 of the Constitution, had followed the writing of a letter of ambiguous or doubtful import. As has been observed above, the resignation was not even to be accepted by the Speaker and it is not at all clear under what authority the Speaker issued a G notification in the Gazette, declaring that the respondent had resigned his seat. It is significant, in this connection, to note that even in a case where a question arises whether a member of an Assembly has, after his election, become disqualified from being a Member, it is not for the Speaker to decide that question. He can only refer the question to the Chief Election Commissioner and if that officer is of the opinion that the member has become disqualified, he shall then cease to be a Member. This is expressly provided for in clause (2) of Article 104 of the Constitution. Apparently, therefore, the authority contemplated by the Constitution and the law, to take action on vacancies occurring in the Assembly, is the Chief Election Commissioner and not the Speaker. It is also pertinent to refer to section 81 of the National and Provincial Assemblies (First Elections) Order, 1962, which authorizes the Election Commission, by notification in the official Gazette, on a seat becoming vacant, to call upon the constituency concerned, to elect a person to fill the seat for such constituency. It is, however, sought to be argued, on behalf of the appellant, that the question involved in this case was taken out of the jurisdiction of the superior Courts or of any Civil Court, by the provisions of Article 111 of the Constitution. Clauses (1) and (2) of that Article read as below: "(1) The validity of any proceedings in an Assembly shall not be questioned in any Court. (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 any of those powers, be subject to the jurisdiction of any Court." It is suggested that the resignation of a seat in the Assembly by a Member relates to the "procedure" or "conduct of business" in the Assembly and the decision of the. Speaker concerning such a point would be immune from challenge in any Court of law. In this regard, reliance is placed by Dr. Nasim Hasan Shah on the recognised principle that what takes place within the four walls of the Legislature, is not open to adjudication by Courts. The case cited in support is Bradlaugh v. Gossett (1884) 12 Q B D

271. In this case it was ruled by the Queens Bench Division that the House of commons is not subject to the control of Her Majesty's Courts in its administration of that part of the statute‑law which has relation to its internal procedure only. It was recognized by the learned Judges that a resolution of the House of Commons could not change the law of the land. But they observed that a Court of law had no right to enquire into the propriety of a resolution of the House restraining a Member from doing, within the walls of the House itself, something which by the general law of the land he had a right to do, viz. take the oath prescribed by the Parliamentary Oaths Act, 1866. It was further laid down that an action will not lie against the Serjeant‑at‑Arms of the House of Commons, for excluding a Member, from the House, in obedience to a resolution of the House directing him to do so, nor the Court will grant an injunction to restrain that officer from using necessary force to carry out the order of the House. The case is not opposite in the circumstances under consideration here. Obviously, the dispute therein related to something that had happened within the chamber of the House of Commons. The question that falls for determination in the instant case relates more to the constitution of the Legislative Assembly itself, in so far as the point raised is whether, on a true interpretation of the provisions of the Constitution a sitting Member's seat has become vacant or not. No matter relating to "the regulation of procedure, the conduct of business or the maintenance of order in the Assembly" has been brought under review. Article 111 is consequently not attracted to the case and the Court's jurisdiction is not ousted. Indeed, the High Court's jurisdiction is eminently invokable under Article 98 to correct any error of law or any transgression of jurisdiction by any person or authority in circumstances akin to those prevailing in the instant case so long as the order to be passed is not repugnant to any other provision of the Constitution. No such danger exists here. The Constitution contains a scheme for the distribution of powers between various organs and authorities of the State, and to the superior judiciary is allotted the very responsible though delicate duty of containing all the authorities within their jurisdiction, by investing the former with powers to intervene whenever any person exceeds his lawful authority. Legal issues of the character raised in this case could only be resolved in case of doubt or dispute, by the superior Courts exercising judicial review functions, assigned to them by the fundamental law of the land, viz., the Constitution which must override all other sub‑constitutional laws. The Judges of the High Court and of this Court are under a solemn oath to "preserve, protect and defend the Constitution" and in the performance of this onerous duty they may be constrained to pass upon the actions of other authorities of the State within the limits set down in the Constitution, not because they arrogate to themselves any claim of infallibility but because the Constitution itself charges them with this necessary function, in the interests of collective security and stability. In this process, extreme and anxious care is invariably taken by the Judges to avoid encroachment on the constitutional preserves of other functionaries of the State and they are guided by the fullest and keenest sense of responsibility while adjudicating on such a matter. The action taken by the Speaker was clearly not g sacrosanct in this case and its legality was open to challenge under Article 98 of the Constitution. Dr. Nasim Hasan Shah also invited our attention to cases reported in Reg. v. Mayor of Wigan (1)52 L T R 435 Glosson v. Glosson (2) (1907) 2Ch. D 370 and Latchford Premier Cinema Limited v. Ennion (3) (1931) 2 Ch. D 409 but none of them lends any assistance to the position adopted by learned counsel in this ease. In all of them, the resignation sent by the functionary concerned, to the relevant institution or person, had already taken effect, when it was sought to be withdrawn and it was held that the stage of recall had passed beyond the reach of the sender's powers. This is far from being the case here. No other point was raised in this appeal which fails and it is hereby dismissed with costs. A. H. Appeal dismissed.