' MUHAMMAD TASNIM, J.---Two M.P.As of Sindh Assembly Arbab Zulfiquar Ali and Abdul Razzaque Rahimoon have filed the present petition with the following prayers:--
(A) Direct the Speaker Sindh Assembly (respondent) to decide the application of petitioner No,2 for nomination of Arbab Rahim as Opposition Leader.
(B) To declare the act of respondent refusing leave application as based on mala fide, therefore null and void.
(C) Direct the respondent not to declare the seat of Arbab Ghulam Rahim "Vacant" till the disposal of petitioner.
(D) Costs of the petition may be saddled upon the present regime.
(E) Any other relilef(s) which this honourable Court deems fit, just and proper in favour of the petitioners.
2. Facts of the case as set out in the petition are that both the petitioners claim to be the leaders of Pakistan Muslim League (Humkhayal) and are the elected members of Sindh Assembly. It is stated that in 2008 general election Dr. Arbab Ghulam Rahim was elected as member of Provincial Assembly Sindh and he took oath on 7-4-2008. It is alleged that on the date of taking oath Dr. Arbab Ghulam Rahim was openly physically assaulted and humiliated in the public eye while in Sindh Assembly by the supporters of present regime. It is further alleged that since the very beginning of present regime Dr. Arbab Ghulam Rahim and his family members have been threatened, assaulted and humiliated by the present regime and forced him to leave Pakistan for Dubai. It is further alleged that present petitioners along with two other members of Sindh Assembly submitted application to the speaker Sindh Assembly for nomination of Dr. Arbab Ghulam Rahim as opposition leader but to no avail. In the circumstances two office bearers of Muslim League (Humkhayal) on 10-10-2011 filed Constitutional Petition bearing C.P. No, D-1654 of 2011 before this Court at Hyderabad Circuit which was allowed by a short order dated 21-2-2012 directing therein that Dr. Arbab Ghulam Rahim shall not be arrested upon his return and further no case shall be registered against Dr. Arbab Ghulam Rahim which might prevent him from participating in Provincial Assembly Session and voting in the upcoming Senate Elections and further ordered that necessary security be provided to Dr. Arbab Ghulam Rahim. However, inspite of the above order Dr. Arbab Ghulam Rahim could not return to Pakistan to participate in the Senate Election, however despite extreme pressure and threats his candidates contested the Senate election. It is further claimed that once Dr. Arbab Ghulam Rahim returns to Pakistan the present Government will hive no option but to declare him leader of opposition and it is further claimed that there is great apprehension that the seat of Dr. Arbab Ghulam Rahim will be declared vacant before his arrival just to prevent him from becoming leader of opposition, hence this petition.
3. After service of the notice, comments were filed on behalf of respondent Speaker Provincial Assembly denying thereby all the adverse allegations made in the petition. It is stated in the comments that no doubt, Dr. Arbab Ghulam Rahim was assaulted by some stranger on the date of taking oath and F.I.R. Was registered against such person. It is further stated that the accused who a ssaulted Dr. Arbab Ghulam Rahim was sent up in the Court, but such person has been acquitted frpm the Court of law. It is further submitted that during the entire tenure of four years Dr. Arbab Ghulam Rahim M.P.A. And Abdul Razzaque Rahimoon M.P.A. Never brought the facts before the Assembly or Speaker that Dr. Arbab Ghulam Rahim is threatened, assaulted both physically and mentally. On the contrary during four years Dr. Arbab Ghulam Rahim M.P.A. Submitted several leave applications on personal grounds whereas some of the applications were also submitted by other M.P.As on behalf of Dr. Arbab Ghulam Rahim. It is also denied that Dr. Arbab Ghulam Rahim was ever prevented to attend the session or to lead his group. It is claimed that there are 11 members of Pakistan Muslim League in the Provincial Assembly of Sindh, out of 11 members, only four members had supported Dr. Arbab Ghulam Rahim to be the leader of opposition whereas majority of the members of same group did not support him. In the circumstances respondent/Speaker Provincial Assembly Sindh vide order dated 7th March, 2012 had rejected the application filed by Arbab Zulfiqar Ali M.P.A., Abdul Razzaque Rahimoon, M.P.A., Chetanmal, M.P.A. And Arbab Ghulam Rahim. It is further stated that before joining Cabinet Jam Madad Ali Khan, M.P.A. Resigned from the post of leader of opposition which was accepted by the respondent, accordingly such notification was issued on 13th July, 2011. Per learned A.A.-G., Dr.Arbab Ghulam Rahim was elected as representative of his constituency but for the last four years he did not come to Pakistan to attend the sessions of the Assembly. It is further stated that as and when any leave application was either sent by Dr. Arbab Ghulam Rahim or on his behalf by Abdul Razzaque Rahimoon, M.P.A., the same was read out in the House in accordance with Rules of Procedure of the Provincial Assembly of Sindh and almost all of them were granted except two applications.
4. Along with the comments order passed by respondent dated 7-3-2012 rejecting application filed by petitioner No,2 proposing name of Dr. Arbab Ghulam Rahim as leader of opposition in the Provincial Assembly for Sindh, leave application dated 20-8-2008, leave application for Session dated 2-2-2009, leave application for Session dated 15-4-2010, leave application dated 27-10-2010, leave application dated 3-1-2011, leave application dated 9-6-2011, have been filed. Record shows that all the applications were granted by the House in terms of Rules of Procedure of the Provincial Assembly of Sindh, however, leave application for the Session 13-2-2012 and leave application for the Session dated 19-2-2012 were declined by the House in terms of above referred rules.
5. Learned counsel for the petitioners in support of this petition has submitted that from the first Session of the Provincial Assembly Sindh commencing from 7-4-2008 Dr.Arbab Ghulam Rahim M.P.A. Is being harassed and threatened, whereas the present Government is using force to some how prevent him from taking part in the Assembly proceedings. He further submitted that on 7-4- 2008 Dr. Arbab Ghulam Rahim was manhandled in the Assembly and he had lodged a F.I.R. For such incident but he was not allowed to pursue his case. Learned counsel further submitted that in the aforesaid circumstances, Dr. Arbab Ghulam Rahim was forced to leave Pakistan and after attending only one Session he stayed abroad. Learned counsel further submitted that last date for filing of nomination for Senate was 22-2-2012 and election of the Senate were to be held on 3-3- 2012. Per learned counsel, since Dr. Arbab Ghulam Rahim was not allowed to come to Pakistan for taking part in the Senate Election two voters were compelled to file a Constitutional Petition bearing C.P. No, D-1654 of 2011, seeking directions from this court that Dr. Arbab Ghulam Rahim may not be prevented from returning to Pakistan and further that Dr. Arbab Ghulam Rahim may not be arrested upon his return to Pakistan. It was further prayed that list of cases if pending against Dr. Arbab Ghulam Rahim may be provided and no further case be registered against Dr. Arbab Ghulam Rahim without permission of the court. It was further prayed that respondent be restrained from harassing Dr. Arbab Ghulam Rahim and his relatives. Learned counsel further argued that though such petition was allowed, but still due to threats being extended to Dr. Arbab Ghulam Rahim he could not come to Pakistan and did not take part in the Senate Elections. Learned .Counsel stated that leave application filed by petitioner No,2 on behalf of Dr. Arbab Ghulam Rahim M.P.A. For the Session commencing from 13-2-012 was not disposed of in accordance with the Rules of Procedure of the Provincial Assembly of Sindh. He has further submitted that leave application filed by petitioner No,2 for grant of leave for the Session commencing from 29-2-2012 were malafidely rejected by the respondent so that his seat be declared vacant. Per learned counsel, the action of the respondent is mala fide, coram non judice and in violation of the judgment of this Court passed in C.P. No, D-1654 of 2011, hence instant petition be allowed as prayed. In support of his contention learned counsel has placed reliance on the following cases.
(1) Muhammad Naeem Akhtar v. The Speaker, Sindh Provincial Assembly 1992 CLC 2043,
(2) Mining Industries of Pakistan (Pvt.) Limited v. Deputy Speaker, Balochistan Provincial Assembly Quetta PLD 2006 Quetta 36,
(3) Ahmed Saeed Kirmani M.L.A. v. Ch. Fazal Elahi and others (PLD 1956 Lahore, 807),
(4) Lt. Col. Farzand Ali and others v. Province of West Pakistan (PLD 1970 SC 98).
6. On the other hand Mr. Abdul Fattah Malik, learned Advocate General Sindh who was present on court notice, submits that petitioners are not the aggrieved parties hence the petition in the present form is not maintainable under Article 199 of the Constitution of Pakistan. Learned Advocate General further submits that leave applications filed by Dr. Arbab Ghulam Rahim or by any of the M.P.A. On his behalf were placed before the House and the same were disposed of in accordance with rule 55 of Rules of Procedure of the Provincial Assembly of Sindh. It has been contended by the learned Advocate General, that no malice can be alleged against the entire House of Sindh Assembly. He has referred to Articles 66, 67, and 69 of Constitution of Pakistan and also relied upon the provision of Rule 55 of Rules of Procedure of the Provincial Assembly of Sindh and submitted that action of the respondent is strictly in accordance with law and no exception can be taken to such action, which is in line with Constitution of Pakistan and Rules of Procedure of the Provincial Assembly of Sindh.
7. Mr. Allah Bachayo Soomro, learned Addl. Advocate General Sindh while representing the Speaker of Sindh Assembly respondent in addition to his earlier arguments, has added that petition in its present form is not maintainable under Article 199 of the Constitution of Pakistan. Per learned Addl.
A.G, Dr. Arbab Ghulam Rahim during last four years has attended only one Session of the Assembly and thereafter he proceeded abroad. While giving the details of the leave applications and the orders passed thereon learned Addl. A.G. Submitted that leave application dated 20-8-2008 filed by Dr. Arbab Ghulam Rahim was granted by the House, leave 'application dated 2-2-2010 was also granted on 13-2-2010, leave application for the Session commencing From 15-4-2010 was granted by the House on 3-6-2010, leave application dated 27-10-2010 was granted by the House on 11-11- 2010, thereafter leave application filed by Dr. Arbab Ghularn Rahim on 3-1-2011 was also granted by the house on 13-1-2011, and the leave application dated 9-6-2011 was granted on 23-6-2011. He has further submitted that petitioner No,2 moved leave application for the Session commencing from 13-2-2012 which was read over to the House in accordance with Rule 55 of Rules of Procedure of the Provincial. Assembly of Sindh, but the House deferred the same for 17-2-2012.
' Leave application for the Session commencing from 19-2-2012 and the earlier leave application were read over in the session and the same were rejected vide order dated 5-3-2012 by the House.
He further submitted that last application was rejected on 19-3-2012. It has been contended by the learned Addl. A.G. That petitioners have sought stay of the operation of Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh and the provision of Article 64(2) of the Constitution of Pakistan which cannot be granted in the circumstances of the case. He submitted that provision of sub-Article 2 to Article 64 of the Constitution of Pakistan provides that a House may declare the seat of a member vacant if, without leave of the House, he remains absent for 40 consecutive days of its sitting. Similarly, per learned A.A.-G., the provisions of Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh provide that if a member remains absent, without leave of the Assembly, for 40 consecutive days of its sitting, the Speaker shall bring the fact to the notice of the Assembly and thereupon any member may move that the seat of the member who has been so absent, be declared vacant. Learned Addl. A.G. Submitted that if relief claimed in the present petition is granted same will amount to staying the provision of Article 64(2) of the Constitution of Pakistan and Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh. Learned A.A.G while concluding his arguments submitted that the present petition has been filed with mala fide intention to, gain political mileage and to save Dr. Arbab Ghulam Rahim from the operation of Constitutional provisions as contained in Article 64 of the Constitution of Pakistan and the Rules of Procedure of the Provincial Assembly of Sindh. It has been further contended that the petitioners have not approached this Court with clean hands hence the present petition is liable to be dismissed.
8. We have heard the learned counsel for the parties and have perused the record so also the case-laws cited at bar.
9. We would first take up the question regarding maintainability of the petition under Article 199 of the Constitution of Pakistan. Perusal of Article 199 (1)(a)(i) provides that "where the Court is satisfied that no other adequate remedy is provided by law: on the application of any aggrieved party, make an order directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do."
10. Keeping in view the above quoted provisions, if prayer clause of petition is examined, it will be seen that a. Direction has been sought to Speaker Sindh Assembly to decide the application of petitioner No,2 for nomination of Dr Arbab Ghulam Rahim as opposition leader. It is further prayed that it may be declared that the act of the respondent refusing the leave application of Dr. Arbab Ghulam Rahim is based on mala fide, therefore null and void and a further direction has been sought to the respondent not to declare the seat of Dr. Arbab Ghulam Rahim vacant till the disposal of the petition. From the perusal of the material brought on record along with comments filed by the respondent it will be noticed that an order dated 7-3-2012 has been placed on record whereby the application made by petitioner No,2 proposing the name of Dr. Arbab Ghulam Rahim to be the leader of opposition in the Provincial Assembly Sindh has already been disposed of by the respondent on 7-3-2012, but such order has not been assailed in the present petition, which was filed in the Court on 8-3-2012. In view of herein above, the prayer made in clause (A) has become infructuous.
11. With regard to prayer clauses (B) and (C) such relief cannot be granted to the petitioner in the circumstances of the case, as those are relatable to Dr. Arbab Ghulam Rahim who is not the petitioner in these proceedings. The present petitioners are not the aggrieved party as visualized under Article 199 of the Constitution of Pakistan, hence cannot claim any relief in the present petition. It is settled legal position that for invoking jurisdiction of High Court through Constitutional Petition a petitioner has to be an aggrieved person having locus standi to invoke such jurisdiction.
The petitioner who invokes the constitutional jurisdiction under Article 199 of .The Constitution of Pakistan has to establish that any of his legal or fundamental rights guaranteed in Constitution has been violated. It is also a settled legal position 'that a person who is not an aggrieved party cannot invoke the jurisdiction under Article 199 of the Constitution. Except for relief in the nature of A Habeas Corpus or Quo waranto the petitioner seeking relief under Article 199 of the Constitution has to show that he is an aggrieved person and it is also imperative for him to show that any of his proprietary or personal right as recognized by law has been invaded or denied. Any person who fails to demonstrate the above pre-requisites as recognized by law has no locus standi or any cause of action to seek any relief under Article 199 of the Constitution. The legal right can be a statutory right or a right recognized by law. Learned counsel for the petitioner while responding to objection relating to maintainability of the petition has submitted that since earlier petition was allowed by this Court, the issue of maintainability of the petition has already been decided hence it is not open to this Court to reopen such issue in these proceedings. He further submitted that it is settled legal position that the subsequent Division Bench has to follow the verdict given by the earlier Division Bench of the same Court on the same issue and if contrary view is to be taken than a reference is to be made for constitution of a larger bench. There is no cavil with the above legal position but the same is not attracted in the facts and circumstances of this case. To deal with this aspect of the matter it will be noticed that in earlier C.P. No, D-1654 of 2011 was filed by two Voters and Supporters of Dr. Arbab Ghulam Rahim from his constituency who had sought the following relief(s):-
(A) Direct the respondents not to hinder, prevent or restrain Arbab Ghulam Rahim from returning to Pakistan.
(B) Direct the respondents to furnish respective statements before this honourable Court that Arbab Ghulam Rahim shall not be arrested upon his return.
(C) Direct the respondents to present the list of cases if pending against Arbab Ghulam Rahim and no future case be lodged against him without the prior permission of this honourable Court.
(D) Direct the respondents not to harass Arbab Ghulam Rahim and his family members in any form or manifestation.
(E) That security be provided to Arbab Ghulam Rahim within Sindh Assembly and outside Assembly.
(F) That after returning back to Pakistan his name shall not be placed in exit control list without due process of law and his movements shall not be restricted in any possible manner.
(&) Grant mandatory injunction to Mr. Arbab Ghulam Rahim to come to Pakistan and live as a citizen of Pakistan till the final disposal of the present petition.
(H) Costs of the petition may be saddled upon the respondents.
(I) Any other relief(s) which this honourable Court deems fit, just and proper in favour of the petitioners.
12. The learned Division Bench of this court, while disposing of C.P. No, D-1654 of 2011 had dealt with the issue of maintainability of petition in the following words:- "It is an admitted position that Mr. Arbab Ghulam Rahim is not just a member of Provincial Assembly Sindh. He was elected as Chief Minister by the Provincial Assembly some time in 2004 and remained so uptill the end of 2007. There has been an incident of physical assault on him in the present Assembly when Mr. Arbab Ghulam Rahim went to take oath as member of the present Sindh Assembly. Mr. Arbab Ghulam Rahim is said to be the only leader of opposition in the Provincial Assembly Sindh. In his absence from Pakistan his voters and parry members can seek relief so that their duly elected representatives can represent them in the Assembly. Where a grave apprehension is shown by members of a political party that their leader might be.
Prevented from coming back to Pakistan or upon his return his security might be threatened :hen they can be said to be the aggrieved persons within the meaning of Article 199 of the Constitution."
13. It may be noted that the present petition has not been filed by the voter and supporter of Dr. Arbab Ghulam Rahim nor any fundamental right of the petitioners has been denied in any manner by the respondents, hence the finding recorded by the learned Division Bench in the C.P. No, D-1654 of 2011 will not operate as a bar in these proceedings. Present petition has been filed by two members of Provincial Assembly of Sindh seeking relief as quoted hereinabove. The relief claimed in the present petition is primarily related to Dr. Arbab Ghulam Rahim and not to the petitioners. In this view of the matter the petitioners are not aggrieved party as they have not claimed in the petition that any of their fundamental right or any other right given to them under the law has been violated or threatened to be violated. As discussed above the relief claimed through the present petition in clause (A) has become infructuous as application made by petitioner No,2 to respondent has already been disposed of on 7-3-2012 prior to filing of this petition, whereas, such order passed by respondent on 7-3-2012 has not been assailed in the present proceedings. As regard to prayer clauses (B) and (C) they relate to Dr. Arbab Rahim, and petitioners have no concern whatsoever with such claim, hence this petition in its present form, under Article 199 of the Constitution is not maintainable in the facts and circumstances of this case.
14. With regard to the merits of the case it is an admitted position that after the election of Sindh Assembly Dr. Arbab Ghulam Rahim appeared in the Assembly only once on 17-4-2008, on which date he took oath as member of Provincial Assembly Sindh, however thereafter he proceeded abroad. Perusal of all the leave applications brought on record moved either by Dr. Arbab Ghulam Rahim himself or by some one on his behalf, show that leave was always asked on the ground "unavoidable reasons" or on the ground that Dr. Arbab Ghulam Rahim is "going to perform "UMRAH" or on the ground that Dr. Arbab Ghulam Rahim "is not feeling well and doctors have advised him not to travel by Air". From the conduct of Dr. Arbab Ghulam Rahim it appears that he has been seeking leave throughout at his own choice, on one ground or the other. Dr. Arbab Rahim has never mentioned in the leave application that he is being threatened and or prevented from attending the Assembly Session or restrained from taking part in Senate Elections. It will be further noted that earlier petition was allowed on 21-2-2012 and election process of Senate started on 22-2-2012 whereas Election of Senate took place on 3-3-2012, however, he did not come to Pakistan. Though the voters and supporters of Dr. Arbab Ghulam Rahim had earlier filed C.P. No,D-1654 of 2011 for the relief claimed therein and learned Division Bench of this Court while allowing the petition observed that in the absence of Dr. Arbab Ghulam Rahim from Pakistan his voters and supporters so also party members cannot be represented in the Assembly. In the circumstances earlier petition was allowed in the terms quoted hereinabove. It further appears that inspite of the orders passed by this Court on 21-2-2012 in C.P. No,D-1654 of 2011 Dr. Arbab Ghulam Rahim did not come to Pakistan to attend the Assembly proceedings, though he was assured by the respondent that neither any case..Has been registered against him nor he will be arrested nor his name will be put on exit control list, but he did not take the benefit of the above order of learned Division bench passed in the above petition.
15. To examine the question as to whether leave application filed by Dr. Arbab Ghulam Rahim or made on his behalf were disposed of by the respondent in accordance with the rules or not, it will be advantageous to quote Rule 55 of the Rules of Procedure of the Provincial Assembly of Sindh, which reads as under:-- "55. (1) A Member desirous of obtaining the leave of the Assembly for his absence may make an application in writing addressed to the Speaker, stating reasons for his absence.
(2) After the question hour and before the transaction of any other business the Secretary shall read out the application to the Assembly and the Speaker shall thereafter put the question without debate, that leave be granted.
(3) Where a Member is prevented from making such application the leave of the Assembly may be granted on application made by any other Member on his behalf.
16. A perusal of above quoted rule would show that a member desirous of obtaining the leave of the Assembly for his absence may make an application in writing addressed to the Speaker, stating reasons for his absence. After the question hour and before the transaction of any other business the Secretary is required to read out the application to the Assembly and thereafter, the Speaker shall put the question without debate, that leave be granted. Where a Member is prevented from making such application the leave of the Assembly may be granted on application made by any other. Member on his behalf. Leave applications filed by Dr. Arbab Ghulam Rahim or leave applications moved on his behalf for the reasons mentioned therein were always read out in the Assembly and all the applications were allowed by the House except