MUHAMMAD ALI MAZHAR, J.---All the applicants are police officials; they have applied bail in Crime No,7 of 2012 of Police Station Civil Line, Larkana, lodged under sections 119, 166, 34, P.P.C. And 29 of the Police Act. ' leave application for the Session commencing from 13-2-2012 which was read out in the House and the same was deferred by the House till 17-2-2012. The above leave application was taken up and again read out in the House and Speaker put the question to the House whether the leave application be granted or not. The House of the Provincial Assembly rejected the leave application in its sitting dated 5-3-2012. Thereafter another leave application was filed in the Session commencing from 29-2-2012 which was also read out to the House who regretted the same in its Session dated 5-3-2012. Examination of the orders of the Speaker passed on the leave application clearly demonstrate that all the leave applications filed by Dr. Arbab Ghulam Rahim or on his behalf by petitioner No.2 have been dealt with strictly in accordance with the Rule 55 of Rules of Procedure of the Provincial Assembly of Sindh. Learned counsel for the petitioner could not point out any illegality in the disposal of leave applications by the respondent.
17. The last prayer made in the petition seeks a direction to respondent not to declare the seat of Dr. Arbab Ghulam Rahim vacant till the disposal of the petition. This aspect of the matter has been taken care of in Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh, which is quoted hereunder:-- "56. (1) If a Member remains absent, without leave of the Assembly for forty 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.
(2) If the seal of the Member is declared vacant, the secretary shall cause a notification to that effect to be published in the Gazette and forward a copy of the notification to the Chief Election Commissioner for taking steps to fill the vacancy thus caused."
18. The examination of the above rule demonstrates that If a Member remains absent, without leave of the Assembly for forty 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.
19. Article 64 of the Constitution of Pakistan provides as under:- "64. Vacation of Seats. (1) A Member of [Majlis-e-Shoora (Parliament)] may, by writing under his hand addressed to the Speaker or, as the case may be, the Chairman resign his seat, and thereupon his seat shall become vacant.
(2) A House may declare the seat of a member vacant if, without leave or the House, he remains absent for forty consecutive days of its sittings."
' Sub-Article 2 to Article 64 of the Constitution provides that House may declare the seat of a member vacant if, without leave of the House, he remains absent for forty consecutive days.
20. Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh are in the line with the Constitutional Provision quoted hereinabove. If the prayer made by the petitioner is allowed it will amount to suspending the operation of Rule 56 of Rules of Procedure of the Provincial Assembly of Sindh and Sub-Article 2 to Article 64 of the Constitution. In the circumstances of the case such a relief cannot be granted.
21. In the case of Jam Madad Ali reported as 1997 M LD 1960 a member of Provincial Assembly remained absent for more than 40 consecutive days of sitting in the circumstances without leave and his seat was declared vacant. The petitioner in the reported case filed a constitution petition before High Court of Sindh at Karachi and said petition was came to be dismissed by the learned Division Bench of this court with the following observations:-- "We are in complete agreement with the decision of their lordships that the judiciary while exercising the power under Article 199 has to avoid encroachment on the constitutional preserves of other functionaries of the State. The Assembly is a sovereign body and it acts in accordance with the prescribed rules. Even if there is irregularity the Constitution does not authorize the Court to question the irregularities of Assembly. In this case there is no such event which may justify this Court to intervene. Thus we arrive at the conclusion that the procedural irregularities if any in the proceeding of the Assembly cannot be scrutinized by, this Court in exercise of Constitutional jurisdiction."
22. From the perusal of case-law cited by learned counsel for the petitioners it will be noticed that in the case of Muhammad Naeem Akhtar v. The Speaker Sindh Provincial Assembly 1992 CLC 2043 provisions of Article 64(1) were under debate and it was held by the learned Division Bench of this Court that action of Speaker of the Sindh Assembly in accepting the resignation of three petitioners does not fall within the term "any proceeding in the Provincial Assembly" used in the aforesaid clause nor such action can be described as an exercise, of power by the Speaker for regulating the procedure or the conduct of the business in the Assembly under clause (2) of Article 69 of the Constitution. In the present case action of the Speaker was not challenged in terms of Rule 55 of Rules of Procedure of the Provincial Assembly of Sindh, leave applications were read over to the House and in view of decision of the House of Sindh Assembly the leave application were disposed of In the circumstances judgment cited by learned counsel for the petitioner is not applicable to the circumstances of the case.
23. The other judgment cited by learned counsel in the case of Mining Industries of Pakistan (Pvt.)
Limited supra the provision of Article 63(2) of the. Constitution of Pakistan were examined by a learned Division Bench of Quetta High Court, but the point involved in such judgment has no bearing with the case in hand.
24. With regard to judgment in the case of Ahmed Saeed Kirmani (supra) provisions of Articles 89, 170 and 175 of the Constitution of Pakistan 1956 were examined but such judgment has no relevancy with the case in hand.
25. The other judgment cited by the learned counsel for the petitioner in the case of Lt. Col. Frizand Ali supra, in the said petition Articles 98 and 171 of the Constitution of Pakistan were under debate and the honourable Supreme Court of Pakistan while dealing with Article 111 of Constitution of Pakistan, 1962 came to the conclusion that it is true that all that fairly concerns the internal proceedings of the House relating to its proper business is immune from challenge in Courts, it cannot be conceded 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 effecting 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, relates to the "internal proceedings" of an Assembly. Clause (i) of Article 111 bars the. Courts only from enquiring into the validity of "proceedings in an Assembly" in the formal sense and nothing more. On examination of the facts of instant petition, it will be noticed that no personal or fundamental right has been claimed to have been denied on the other hand action of the House with regard to disposing of leave application of Dr.Arbab Ghulam Rahim has been challenged. There is no cavil with the law laid down by the honourable Supreme Court of Pakistan, however, the facts of the case in hand are distinguishable from the facts of Lt. Col..
Farzarid Ali's case.
26. In view of hereinabove, we are of the view that instant petition, having been incompetently filed, has no merits, which was accordingly dismissed vide our short order dated 21-3-2012 and these are the reasons for the same.