SH. AHMAD FAROOQ, J. Through the instant petition , under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed for declaring the act of the respondents as illegal and without lawful authority, whereby, the petitioner has been summoned to appear before the Committee on Privileges of the Provincial Assembly of Punjab on 24.11.2010.
2. The background of this case is that the petitioner was appointed as Convener of a committee, constituted by the Chief Minister, Punjab for inquiring into the matter regarding the death of a three years old girl in Doctors Hospital, Lahore due to the alleged negligence on the part of the Doctors/Paramedics, vide letter dated 3.12.2009, whereupon, the petitioner submitted his report according to the terms of reference, within the stipulated time. The petitioner claimed that he did not allow the respondent No. 1 to join the inquiry proceedings, as the same was not required for conducting an independent and transparent inquiry. The petitioner further contended that the respondent No. 1 filed a Writ Petition No. 23796/2009, wherein, amongst others, she prayed for setting aside the report, submitted by the present petitioner, as well as restraining him from discussing the said report on media. This Court passed an order on the afore-mentioned petition on 17.12.2009, which was challenged in the Hon'ble Supreme Court of Pakistan through Civil Petition No. 2510-L ,pf 2009, which is still pending adjudication. The petitioner contended that the respondent No. 1 has moved a Privilege Motion in the Provincial Assembly of Punjab, whereupon, the Committee on Privileges has summoned the present petitioner to appear on 24.11.2010 at 11.00 a.m. Hence, the instant petition.
3. The learned counsel for the petitioner submitted that Rule 117 of the Rules of Procedure of the Provincial Assembly of Punjab prohibits the discussion in respect of a matter, pending before any statutory authority performing any judicial or quasi-judicial functions or any Commission or Court of inquiry appointed to enquire into or investigate any matter. He further submitted that Rules 116(5)(c) and 202(3)(a) of the Rules of Procedure of the Provincial Assembly of Punjab do not permit discussion on any matter on the floor of Assembly, which is sub judice. The learned counsel for the petitioner maintained that the petitioner cannot be required to appear before the Committee on Privileges of the Provincial Assembly of Punjab, as the matter in dispute is sub judice before the Lahore High Court as well as the Hon'ble Supreme Court of Pakistan. He contended that the order of respondent No. 2 summoning the petitioner, at the instance of respondent No. 1, is not only patently illegal and without jurisdiction but also tantamount to transgression of powers. In support of his contentions, the learned counsel for the petitioner has relied upon the judgment reported as Commodore (R.) Shamshad v. Federal Board of Intermediate and Secondary Education and others (PLD 2009 SC 75).
4. We have heard the learned counsel for the petitioner at the limine stage.
5. At the outset, we would like to point out that the validity of any proceeding in the Provincial Assembly cannot be called in question on the ground of any irregularity of procedure under Article 69 read with Article 127 of the Constitution of Islamic Republic of Pakistan, 1973. The Provincial Assembly includes a Committee of Provincial Assembly, as provided in Articles 66(5) and 127 of the Constitution of Islamic Republic of Pakistan, 1973. Moreover, Section 10 of the Punjab Privileges Act, 1972 empowers the Assembly or any Committee thereof to direct any person to appear before the Assembly or the Committee and to produce or cause to be produced any document in possession of such person, and this power can only be curtailed if the Government claims privilege for any document or exemption for any public servant and the Assembly of the Committee may take the matter to the Governor, whose decision on such privilege or exemption shall be find and conclusive and shall not be called in question in any. Court in terms of Section 10(7) of the Act ibid. If any public servant is aggrieved of the issuance of a notice to appear before the Assembly or the Committee thereof, he may approach the Government in order to claim exemption from the appearance. The Courts are not expected to place any clog on the authority of the Provincial Assembly or any of its committees to summon a public servant for his appearance.
6. In the instant case, the respondent No. 1, who is a member of the Provincial Assembly of Punjab, has moved a Privilege Motion No. 11 of 2010 and according to Rules 70 and 73 of the Rules of the Procedure of the Provincial Assembly, the Speaker is empowered to admit a Privilege Motion and refer the same to the Committee on Privileges for examination, investigation and submission of a report. Therefore, summoning of a person/public servant by the Committee on Privileges, against whom a Privilege Motion has been moved, is an act, which is not only permitted under the relevant rules but also in consonance with the principles of natural justice, i.e. No one should be condemned unheard.
7. As far as the argument of the learned counsel for the petitioner that Rule 117 of the Rules of Procedure of the Provincial Assembly of Punjab prohibits the discussion in respect of a matter, pending before any statutory authority performing any judicial or quasi-judicial functions or any Commission or Court of inquiry appointed to enquire into or investigate any matter, is concerned, the same is not relevant in the present scenario. A careful perusal of Rule 117 of the Rules of Procedure of the Provincial Assembly of Punjab would make it crystal clear that the said Rule only prohibits the moving of a resolution for seeking to raise discussion in respect of a matter, pending before any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any Commision or Court of inquiry.
8. Through the instant petition, the petitioner has impugned the summons, issued to him in pursuance to a Privilege Motion, moved by a member of the Provincial Assembly against him. The respondent No. 1 has not moved any resolution seeking to raise discussion in respect of the report, submitted by the present petitioner, which is the subject-matter of the pending" judicial proceedings. It is significant to observe here that the Committee on Privileges of the Provincial Assembly of Punjab has not summoned the present petitioner in respect of the Court proceedings or conduct of a Judge but only for determination for breach of privileges of a member of the Provincial Assembly of Punjab.
Admittedly, the issue of the privilege of respondent No. 1, who is a member of the Provincial Assembly of Punjab, is not sub judice.
9. The reliance of the learned counsel for the petitioner on the case reported as Commodore (R.)
Shamshad v. Federal Board of Intermediate and Secondary Education and others (PLD 2009 SC 75) is misplaced and the same-cannot be applied to the facts of this case. In this connection, it would be advantageous to reproduce hereunder a portion of the said judgment: "We do not claim supremacy but at the same time it is our Constitutional duty to uphold the independence of judiciary and rule of law. The legislature, executive and judiciary are enjoyed by the Constitution to perform their functions at discharge their duties within the limits set by the Constitution and the law. The existence and extent of a privilege of a House are matters which can only be judicially determined by a Court of Law by exercise of power of judicial review. The mere assertion Eby the House or its Committee that it has certain privilege is not conclusive and the same has to be established before the Court of law. But once the same is established, the Courts are required to stay their hands of ungrudgingly. The proceedings, bv a Court or the Parliament or its Committee, are not to be taken in a manner which may lead to unnecessary confirmation and chaos. The provisions of sub-rule (5) of Rule 201 of the Rules of Procedure and Conduct of Business in the National Assembly seem to have been wisely introduced with a view to avoid any conflict or encroachment with the exercise of judicial power which cannot be taken away or abridged in any manner. In the absence of any material on record, it is neither possible nor desirable for us at this stage to no into the questions of bias or mala fides of the Chairman of the Standing Committee."
(underlining is for emphasis)
It can safely be inferred from the above observation of the Hon'ble Supreme Court of Pakistan that it is only after the decision of the Parliament/Provincial Assembly that the Courts may exercise the power of judicial review. Article 69 of the Constitution of Islamic Republic of Pakistan, 1973 oust the jurisdiction of the Courts to inquire into the validity of any proceeding of Parliament on the ground of any irregularity of the procedure. The Constitutional provisions have been designed to allow the pillars of the State to work in harmony with a system of check and balance. The judiciary is charged with the duty and power to interpret, construe and apply the Constitutional law but in exercise of this power, judiciary claims no supremacy over other organs of the State,, e.g. The legislator, but acts only as an administrator of the public will. Procedure adopted for conducting the proceedings of the Assembly cannot be scrutinized by the High Court in exercise of its Constitutional jurisdiction.
(Reliance is placed on the case of Wasi Zafar v. Speaker Provincial Assembly (PLD 1990 Lah. 401).
10. In view of above discussion and observations, we are of the considered view that the instant petition is not maintainable and the same is accordingly dismissed in limin .