' AKHTAR ZAMAN MALGHANI, J.---Following reliefs have been claimed in the instant Constitutional petition:- "Under the circumstances, it is respectfully prayed that this Hon'ble Court may be pleased to direct respondent No,1 to perform his constitutional obligations by making reference under Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973 against respondents Nos.2 and 3 for determination of their disqualification as envisaged under Article 63(g) of the Constitution of Islamic Republic of Pakistan, 1973.
Any other relief as may be fit and appropriate may also be awarded accordingly."
2.Briefly stated, facts of the case are that the petitioner filed an application before the respondent No.1 for making reference to the Chief Election Commissioner of Pakistan as contemplated under Article 63(2) of the Constitution as according to the petitioner, respondent No.2 and respondent No.3 (speaker) had rendered themselves disqualified on account of their acts and deeds enumerated in the application. The grievance of the petitioner is that the Deputy Speaker failed to perform his constitutional obligation despite repeated requests.
3.We have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the petitioner vehemently contended that the speaker of the provincial Assembly as well as respondent No.2 had rendered themselves disqualified, therefore, a petition was filed before respondent No.1 to refer their case for disqualification as envisaged under Article 63(2) to the Chief Election Commissioner of Pakistan, which he was under legal obligation to do but he refused to refer the matter. The learned counsel was of the view that Deputy Speaker on receipt of the application should have sent the reference to the Chief Election Commissioner, who was competent to decide as to whether on the basis of allegations mentioned in the application, respondents Nos.2 and 3 have become disqualified, but respondent No.1 failed to perform his lawful duty. The learned counsel further argued that Article 69 of the Constitution of the Islamic Republic of Pakistan was not attracted in the instant case as the petitioner had not challenged the proceedings of Assembly but invoked the jurisdiction of Deputy Speaker under Article 63(2), which he could exercise in absence of Speaker and as Speaker had also rendered himself disqualified by joining hands with respondent No.2, therefore, Deputy Speaker would take place of the Speaker for the purpose of forwarding reference to the Chief Election Commissioner.
' On the other hand, the learned counsel for the respondent No,2 vehemently contended that the validity of proceedings in Assembly could not be called in question in any Court as envisaged under Article 69 of the Constitution. He further contended that under Article 66(1) read with Article 127 of the Constitution any speech made or thing done by a member on the floor of Assembly are immune from action in the Court, as such; petition is not maintainable. He further contended that the application of petitioner for making reference under Article 63(2) had already been rejected, as such; the petition has become infructuous. He further argued that before making reference to Chief Election Commissioner, the Speaker or for that matter Deputy Speaker has to see as to whether the allegations levelled in the application against a member would amount to disqualify such member and the arguments that he had to refer the matter to Chief Election Commissioner without going into merits of the allegations, would be against the spirit of law.
4. Learned counsel for the respondent No,3 in addition to above arguments contended that under Rule 114 of the Rules of Procedure and Conduct of Business, 1974 the Speaker was bound to forward the resolution passed by Assembly to the concerned authorities/departments.
5. We have carefully considered the contentions put forth by the parties' learned counsel in the light of relevant provisions of law. Before dealing with the question as to whether Speaker or for that matter Deputy Speaker was bound under the law to forward the reference to Chief Election Commission without application of mind, we would like to first attend the legal objections raised in respect of maintainability of petition in the light of Articles 66 and 69 read with 127 of the Constitution.
' Article 66 of the Constitution contemplates as under:-- "(1) Subject to the Constitution and to the rules of procedure of [Majlis-e-Shoora (Parliament)], there shall be freedom of speech in [Majlis-e-Shoora (Parliament)] and no member shall be liable to any proceedings in any court in respect of anything said or any vote given by him in [Majlis-e- Shoora (Parliament)], and no person shall be so liable in respect of the publication by or under the authority of [Majlis-e-Shoora (Parliament)], of any report, paper, votes or proceedings."
6. From the very opening words of the Article it is crystal clear that freedom of speech in Assembly is subject to the Constitution and Rules of Procedure. Article 68 of the Constitution provides that no discussion shall take place in Majlis-e-Shoora with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties, thus; no discussion could be made with respect to conduct of a Judge of Supreme Court or High Court in the discharge of his duties A by referring to Article 66 because such privilege is qualified one subject to other provisions of Constitution including Articles 68 and 204 of the Constitution. Similarly; a member of Parliament or Provincial Assembly would render himself disqualified under Article 63(1)(g) to remain member as such; if he propagates any opinion or acts in any manner prejudicial to the Ideology of Pakistan or the sovereignty, integrity or security of Pakistan or morality or the maintenance of Public Order or defames or brings into ridicule the judiciary or the Armed Forces of Pakistan notwithstanding anything contained in Article 66 or 69 of the Constitution. Of course, proceedings of an Assembly are protected under Article 69 but to enjoy that immunity, such proceedings must fall wholly within the privileges of Assembly. It is certainly not the legal right or privilege of Assembly to out step its own competence and jurisdiction laid down by the Constitution. Therefore; a question relating to the title of a person to be a Member of the House or to continue to sit therein is not a question pertaining to the internal proceedings of the house, but a question affecting the constitution of the House and not barred from inquiry by the Courts under Article 199. In this regard, we are fortified by the judgment reported in PLD 1970 SC 98, wherein it was observed as under:-- "In this view of the matter, while I am prepared to concede that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, I am not in a position to agree that a question relating to the title of a person to be a Member of the House or to continue to sit therein is a question pertaining to the internal proceedings of the House.
It is a question affecting the constitution of the House and, therefore, it is not a question which can possibly be barred from enquiry by the Courts under Article 111 of the Constitution. This is not a matter which pertains either to the regulation of the procedure of the house or the conduct of its business or the maintenance of order in the Assembly or affecting any of its privileges. This is not a question, therefore, which in my opinion, relates to the "internal proceedings" of an Assembly.
Clause (1) of Article 111 bars the Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more.
' In this connection I may also point out that the learned Attorney-General appearing in response to a notice issued to him under Order XLV, rule 2 of the Supreme Court Rules, very frankly conceded that if total strangers or intruders, without any colour of right, had participated in the Assembly, that proceeding would not be a valid proceeding and the Courts would be entitled to question the validity of such a proceeding notwithstanding the provisions of Article 111. If this be so, then it is obvious that the bar created by clause (1) of Article 111 notwithstanding the omission of the words "on the ground of any alleged irregularity of procedure", which occurred in sections 41(1) and 87(1) of the Government of India Act, 1935, was not an absolute bar. The mere omission of these words does not indicate that the scope of the immunity has been enlarged. The words of Article 89(1) of the 1956-Constitution were to the same effect as the words of Article 111(1) of the Constitution of 1962, and they were considered in the case of Ahmed Saeed Kirmani, to have given immunity only in respect of matters falling fairly within the scope of the "internal proceedings" of the House relating to its proper business. If under these provisions the immunity was held to be confined only to internal proceedings, I see no reason to think that their scope has been widened in Article 111(1) of the 1962-Constitution."
7. Adverting to merits of the case, it is grievance of the petitioner that Deputy Speaker failed to perform his lawful duty by not forwarding the application of the petitioner to Chief Election Commissioner for disqualifying respondents Nos.2 and 3 and according to learned counsel under Article 63(2) in absence of Speaker, Deputy Speaker is bound to forward the reference to Chief Election Commissioner without seeing as to whether the allegations levelled in the application make out a case of disqualification or not and it is for the Chief Election Commissioner to decide whether the member against whom reference has been made, is disqualified to continue as member of the Assembly or not. After having gone through Article 63(2) as amended by Chief Executive Order XXIV of 2002 we were unable to agree with contentions of the learned counsel and are of the view that on submission of reference it is for the Speaker and in his absence Deputy Speaker to take a decision as to whether a "question" as contemplated under Article 63(2) of the Constitution has arisen, he is not to act just as a post office and to forward reference without application of mind and determining the question. In this regard we may refer to the judgment reported in 1995 M LD 1903 wherein following observations were made:-- "If a reference is submitted to him, he is not bound to forward/transmit the same, to the Chief Election Commissioner for decision forthwith. The Speaker has to apply his own mind judiciously to the allegations made in the reference, after fully taking into consideration the relevant provisions on the subject and then to decide as to whether "any question" in the nature of disqualification has "arisen" which may justify the making of reference to the Chief election Commissioner."
8. We have been informed that decision had already been taken by the Deputy Speaker who refused to make reference to the Chief Election commissioner.
' In view of what has been discussed above, we are inclined to hold that on submission of application or reference it was for the speaker and in case in hand for Deputy Speaker to judiciously determine as to whether a question as envisaged under Article 63(2) of the Constitution with regard to disqualification of respondents Nos. 2 and 3 had arisen and reference should be forwarded to the Chief Election Commissioner which decision had already been taken by him by declining to forward the reference such decision could not be said to be without jurisdiction, as such; the petition being devoid of any merits is dismissed accordingly.