Shujaat Ali Khan, J. Through this consolidated judgment, we intend to decide ICA Nos.23122/2022 (this appeal), 23123/2022 and 23124/2022 having been filed against order , dated 13.04.2022, followed by even dated detailed judgment, passed by learned Judge in Chambers in W .P. No.21710/2022 and other allied matters.
I. BRIEF BACKGROUND:
2. Precisely , Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab, filed W.P.
No.2171 1/2022 (subject matter of ICA No.23122/2022/this appeal & ICA No.23123/2022) inter-alia challenging order , dated 06.04.2022, passed by the Speaker , Provincial Assembly , Punjab, regarding withdrawal of his powers vested under Rule 25 of the Rules of Procedure of the Provincial Assembly of Punjab, 1997 (the Rules, 1997) and further sought declaration to the effect that after submission of Nomination Papers as candidate for Chief Minister , Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab, is not competent to preside over the meeting of the Provincial Assembly and as a result, he (Sardar Dost Muhammad Mazari) be declared the lawful Presiding Officer to chair the meeting of the Provincial Assembly , scheduled on 16.04.2022. Simultaneously , Mr. Muhammad Hamza Shahbaz Sharif, filed W.P. No.21710/2022 (subject matter of ICA No.23124/2022) inter-alia with the prayers that a direction for immediate convening of the meeting of the Provincial Assembly of the Punjab be issued to elect the leader of the House and sealing of the premises of the Provincial Assembly and adjourning the House for time and again be declared illegal. The learned Judge in Chamber , vide consolidated order , dated 13.04.2022, followed by even dated detailed judgment, while dismissing W.P. No.21710/2022 disposed of W.P. No. 2171 1/2022 by declaring order , dated 06.04.2022 passed by the Speaker , Provincial Assembly , Punjab, as illegal with the further direction to the Deputy Speaker , Provincial Assembly of Punjab (Petitioner in W.P. No.217 11/2022) to ensure holding of elections for Chief Minister on 16th instant in terms of Article 130 (3) of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution" ) read with Rule 20 of the Rules, 1997. Being aggrieved of Para No.2 of the impugned consolidated order , dated 13.04.2022, all these appeals have been filed.
II. APPELLANTS SUBMISSIONS:
3. Senator Barrister Ali Zafar , ASC, begins his arguments with the plea that according to Article 67 of the Constitution the House has to make rules for regulating its procedure and conduct of its business and any proceeding in the House shall not be invalid on the ground that some persons who were not entitled to do so, sat, voted or otherwise took part in the proceedings. Adds that that since not only Resolution of No Confidence has been moved against Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly , Punjab, but also by filing W.P. No.2171 1/2022, he supported the opponent of Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab, hence, biasness on his part is floating on the surface. Further adds that according to Rule 13 of the Rules, 1997 in the event of inability of the Speaker/Deputy Speaker of the Provincial Assembly to preside over Session of the House, the Panel of Chairmen has been saddled with the responsibility to perform said duty. Argues that since for the last more than 3 years, more than four panels of Chairmen have been working consistently, there is no cavil with the fact that one of those panels of chairmen be deputed to preside over the Session of the House on 16.04.2022. Further argues that Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly, Punjab, has seized to perform his duties as Deputy Speaker, on account of his partiality, in terms of Article 53(3) of Constitution of Islamic Republic of Pakistan, 1973 read with Rule 235 of the Rules, 1997. Contends that leveling of allegations against Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab, in his petition, Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab has diluted his impartiality. Further contends that it is coincidence that though Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab belongs to PTI but his case is being pleaded by Senator Azam Nazir Tarrar ASC who belongs to PML(N). Submits that Press Conferences conducted by Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab, on different occasions, before the media shows his inclination towards opponents of Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab. Further submits that impleadment of Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab by name in his Writ Petition and omission of name of Mr. Muhammad Hamza Shahbaz Sharif speaks volumes about the partial attitude of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab. Adds that during subsistence of Article 69 of the Constitution the learned Judge in Chambers could not interfere into the Business of the Assembly .
When confronted with the query as to whether the Hon'ble Supreme Court of Pakistan, while dealing with the matter relating to National Assembly of Pakistan, has broken the firewall contained under Article 69 of the Constitution, the learned counsel has answered in negative. To fortify his contentions, learned counsel has relied upon the cases reported as Pakistan v. (1) Ahmad Saeed Kirmani, (2) Ch. Fazal Elahi, (3) Secretary , West Pakistan Legislative Assembly , (4) Mumtaz Hassan Qizalbash (PLD 1958 Supreme Court (Pak) 397), Riaz Hanif Rahi v. Federation of Pakistan through Secretary , Ministry of Law and Justice and 14 others (PLD 2019 Islamabad 230), BNP (Pvt.) Ltd. v. Capital Development Authority and others (2016 CLC 1169), Gohar Nawaz Sindhu v. Mian Muhammad Nawaz Sharif and others (PLD 2014 Lahore 670) and Wasi Zafar v.
Speaker Provincial Assembly (PLD 1990 Lahore 401).
4. Mr. Imtiaz Rasheed Siddiqui ASC, in addition to adopting the arguments advanced by Senator Barrister Ali Zafar ASC, states that it is very ironical that the Writ Petitions filed by Mr. Muhammad Hamza Shahbaz Sharif and Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab were numbered consecutively which is not possible in routine which shows that the said petitions were filed in connivance of the petitioners with each other . Submits that initially objections were raised by the Office against maintainability of those petitions which were over-ruled with the observation that question regarding maintainability of said petitions would be decided at the time of final decision of said petitions but while deciding the matter the learned Judge in Chambers has not uttered even a single word in that regard. Further submits that since the Presiding Officer on the date of election for the portfolio of Chief Minister has to perform certain material acts like rejection of vote of any member of the Assembly; expulsion of any member out of the House and to declare any member ineligible to cast vote, Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly , Punjab cannot be considered as suitable person to preside over the Session of the House, on 16.04.2022, when he has already chan ged his loyalties, proof positive whereof is that his own party (PTI) has moved motion of No-Confidence against him. Mr. Imtiaz Rasheed Siddiqui, ASC, argues that since the proceedings of the Provincial Assembly are immune from challenge before any court of law, the observation of the learned Judge in Chambers that the elections shall be conducted by the Deputy Speaker amounts to super-impose him against the clear cut provision of the Constitution. Adds that that the Appellants would be satisfied if the observations of the learned Judge in Chambers contained in Para No.2 of the impugned order are modified to the effect that the election for the Chief Minister shall be conducted according to provisions of the Constitution and the Rules, 1997. Further adds that while misconstruing that the entire powers of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly , Punjab have been withdrawn in entirety the learned Judge in Chambers omitted to note that the only power conferred by the Speaker under Rule 25 of the Rules, 1997 has been withdrawn. Conte nds that concealment on the part of Mr. Muhammad Hamza Shahbaz Sharif, regarding filing of C.P. No.5/2022 before Hon'ble Supreme Court of Pakistan and its disposal, on 07.04.2022, disentitled him for discretionary relief in terms of Article 199 of the Constitution. Urges that malafide on the part of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab is evident from the fact that though while appearing before this Court he has leveled allegation that he was kept under restraint by the Speaker but no such plea having been taken in his Writ Petition, the same canno t be considered as gospel truth.
Pleads that in view of the partial conduct of Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab, some serious brawl took place amongst the members of the Provincial Assembly resulting into damage to the building and its fixtures. Argues that though Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab appeared before this Court but did not clarify that upon whom he served the order passed on 05.04.2022 regarding conduct of Session of the Assembly on 06.04.2022. Adds that non-conveying of the change of date of Session in terms of Rule 3 of the Rules, 1997 by Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab to all the members of the Provincial Assembly speaks volumes about his mala-fide conduct. Further adds that though Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab filed an applications under Order XIX Rule 2 CPC to summon Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab to answer certain queries but the said applications having not been decided till the decision of the main petitions, the impugned judgment is not sustainable. Submits that since Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab is not living upto the Constitution he cannot be allowed to preside the Session of the House on 16.04.2022. Pleads that holding of Session of the Assembly , on 06.04.2022, in Flatties Hotel, Lahore, on the basis of order , dated 05.04.2022, passed by Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab and its cove rage by the Print and Electronic media is sufficient to establish that Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab is in cahoots with the rival candida te of Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab. Relies on Gen. (R.) Parvez Musharraf v. Nadeem Ahmad (Advocate) and another (PLD 2014 SC 585) and Lt.Col. Farzand Ali and others v. Province of West Pakistan through the Secretary , Department of Agriculture, Government of W est Pakistan, Lahore ( PLD 1970 SC 98 ).
5. Mr. Safdar Shaheen Pirzada, ASC, in addition to adopting the arguments advanced by Senator Ali Zafar ASC and Mr. Imtiaz Rasheed Siddiqui ASC, contends that according to rule 2(v) of the Rules, 1997 Presiding Officer means any person who is presiding at the sitting, thus, Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab, cannot consider himself to be the sole person to preside Session of the House, on 16.04.2022. Adds that since Rule 234 of the Rules, 1997, bestows draconian powers upon the Presiding Officer, it cannot be believed that Sardar Dost Muhammad Mazari, Deputy Speaker , Provinci al Assembly of Punjab would be a silent supervisor of the Session on 16.04.2022. Further adds that since the order purportedly issued by Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab, on 05.04.2022, was silent about any direction by the Hon'ble Supreme Court of Pakistan and any undertaking given by the learned Advocate General, Punjab it cannot be believed that the same was issued pursuant to the order of the Hon'ble Supreme Court of Pakistan.
6. Mr. Aamir Saeed Rawn, ASC, while adopting the arguments advanced by Senator Ali Zafar ASC and Mr. Imtiaz Rasheed Siddiqui ASC, contends that since Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab is part of motion of No-Confidence against Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab, he cannot be considered as impartial person in the election of the Chief Minister of the province. Adds that translation of the Press Conferences of the leaders of PLM(N) into formal orders by Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab is proof positive of the fact that he is siding with the opponent of Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab, hence, he cannot be considered as impartial person.
7. Mr. Muhammad Azhar Siddique, ASC, in furtherance of the above arguments states that his client would be satisfied if para No.2 of the impugned order/judgment is modified to the effect that Session of the Assembly, on 16.04.2022, shall be conducted in line with the provisions of the Constitution and the Rules, 1997.
III. RESPONDENTS SUBMISSIONS:
8. Mr. Ahmad Awais, Advocate General, Punjab, states that since Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab was not present before the Hon'ble Supre me Court of Pakistan as to how he came to know about any passing remarks of the Court or so-called undertaking by him (the Advocate General, Punjab). Adds that change of date of Session of the Assembly from 16.04.2022 to 06.04.2022 was only to benefit Mr. Muhammad Hamza Shahbaz Sharif. Further adds that since the acts of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab are contrary to his oath he cannot be allowed to preside over the Session of the House, on 16.04.2022.
9. Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab, present in Court, while replying to court' s query as to what compelled him to file Writ Petition before this Court in personal capacity , submits that since he was not allowed even to enter into the Provincial Assem bly premises and the powers delegated to him by Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab were withdrawn, he was left with no option but to approach this Hon'ble Court. Adds that due to cordoning off the Assembly Premises, the Session of the House was to be convened, on 06.04.2022, in Flatties Hotel. Further adds that he is ready to give undertaking before this Hon'ble Court to the effect that he shall ensure holding of election for the portfolio of Chief Minister , on 16.04.2022, according to the provision of the Constitution and the Rules, 1997 and by no way shall do any act contrary to the oath sworn by him.
10. Barrister Umer Riaz Sheikh, ASC, representing Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab submits that since provisions of Article 53(3) of the Constitution is self-executory , his client has to preside over the Session to be held on 16.04.2022 in the light of the mandate given under Rule 14(5) of the Rules, 1997. Adds that Rule 13 of the Rules, 1997 only comes into play when the Speaker/Deputy Secretary is also absent due to any reason but since his client is very much there, he cannot be denuded of his powers to preside over the Session of the Assembly , to be held on 16.04.2022. Further adds that Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab has not taken single ground regarding bias in his ICAs, thus, they cannot be allowed to be canvassed at the bar. Submits that since the order regarding withdrawal of the powers of his client by Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab did not amount to internal proceedings the learned Judge in Chambers has committed no illegality while entertaining the Writ Petition filed by his client. Adds that since the impugned order/judgment has been passed in line with the spirit of Article 130(3) of the Constitution, no exception can be taken against it. Relies on Muhammad Azhar Siddique v. Federation of Pakistan (PLD 2012 SC 774), Hakim Khan v. Govt. of Pakistan through Secretary Interior (PLD 1992 SC 595), Asif Ali Zardari v.
Federation of Pakistan (PLD 1999 Karachi 54), Gen. (R.) Parvez Musharraf v. Nadeem Ahmad (Advocate) and another (PLD 2014 SC 585), Baz Muhammad Kakar and others v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others (PLD 2012 Supreme Court 870), Malik Asad Ali and others v. Federation of Pakistan throu gh Secretary , Law, Justice and Parli ament Affairs, Islamabad and others (PLD 1998 Supreme Court 161), Al-Jehad Trust through Raeesul Mujahideen Habib-ul-W ahabb-ul- Khairi and others v. Federation of Pakistan and others (PLD 1996 Supreme Court 324), Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 Supreme Court 595), 7C's Corporate Services v. Oil and Gas Development Company Limited and others (PLD 2017 Islamabad 115) and, Mining Industries of Pakistan (Pvt.) Ltd. through Authorised Director v. Deputy Speaker , Balochistan Provincial Assembly , Quetta and 3 others (PLD 2006 Quetta 36)
11. Senator Azam Nazir Tarrar, ASC, submits that contention of the Appellants that after motion of No-Confidence against Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab, he is ineligible to preside over Session of the House, has beautifully been dealt with by the learned Judge in Chambers in Para No.14 of the impugned detailed judgment, thus, no exception can be taken on the said ground. Adds that despite motion of No- Confidence against Mr. Qasim Suri, Deputy Speaker , National Assembly of Pakistan not only he presided over certain Sessions of the National Assembl y but also performed certain material acts, thus, Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab cannot be held ineligible to preside over the Session of the House, on 16.04.2022. Further adds that since Constitutional Petition before the Hon'ble Supreme Court of Pakistan was filed by the PML(N) through Malik Muhammad Ahmad Khan whereas Mr. Muhammad Hamza Shahbaz Sharif filed independent Writ Petition before this Court, thus, there was no question of concealment on his part. Contends that biased cannot be gauged on the basis of imaginary observation. Further contends that arguing the case by the learned Advocate General, Punjab, on behalf of PTI instead of assisting the Court as per law, speaks volumes about the collusiveness of the principal Law Officer with a political party. Urges that since the post of Chief Minister is vacant since 01.04.2022 it cannot be allowed to be vacant for further period on the whims of the Appellants. Further urges that the learned Judge in Chambers in order to verify the claim of the respondents that the Assembly premises were not in a position to hold Session of the Assembly, deputed Registrar of this Court to visit the site and submit report and according to the report submitted by the Registrar of this Court there was minor damage to some fixtures and only 2/3 days were required for repair thereof. While repudiating the plea of the Appellants regarding marking of consecutive numbers to the Writ Petitions filed by Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab and Mr. Muhammad Hamza Shahbaz Sharif states that since both the said petitions were filed at the beginning of the Office hours, it was just coincidence that both were numbered consecutively, simply for the reason that no case was filed between filing of said two petitions.
IV. DETERMINATION BY THE COURT.
12. We have given anxious consideration to the respective arguments advanced by learned counsel for the parties and having also gone through the documents, annexed with these appeals and those forming part of the Writ Petitions, as well as the case-law cited at the bar .
13. Since, the Appellants have groused against Para No.2 of the impugned order , followed by the detailed judgment, we shall confine our findings to that extent only .
14. The nub of the matter before us is the interpretation of Article 53(3) of the Constitution which reads as under:
53. Speaker and Deputy Speaker of National Assembly: (1) After a general election, the Nationa l Assembly shall, at its first meeting and to the exclusion of any other business, elect from amongst its members a Speaker and a Deputy Speaker and, so often as the office of Speaker or Deputy Speaker beco mes vacant, the Assembly shall elect another member as Speaker or , as the case may be, Deputy Speaker .
(2). Before entering upon office, a member elected as Speaker or Deputy Speaker shall make before the National Assembly oath in the form set out in the Third Schedule.
(3). When the office of Speaker is vacant, or the Speaker is absent or is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker , and if, at that time, the Deputy Speaker is also absent or is unable to act as Speaker due to any cause, such member as may be determined by the rules of procedure of the Assembly shall preside at the meeting of the Assembly .
Article 53(1) of the Constitution deals with the election to the office of the Speaker and the Deputy Speaker of the Assembly while Article 53(2) of the Constitution deals with oath of a member elected as Speaker or Deputy Speaker as set out in the Third Schedule. Article 53(3) of the Constitution demonstrates the performance of Speaker and Deputy Speaker in case of vacancy of office, absence or his/her inability to perform functions due to any cause. The said Article is divided into two parts. According to first part, when the office of the Speaker is vacant, or he is unable to perform his functions due to any cause, the Deputy Speaker shall act as Speaker . While second part deals with the office of the Deputy Speaker with the condition that if his office has become vacant, or he is unable to perform his functions due to any cause, then a member , as determined by the Rules, 1997 shall preside at the meeting of the Assembly . In the case in hand, Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab, who was carrying out the functions of Speaker under Clause (3) and (4) of Article 53 read with Article 127 of the Constitution, submitted nomination papers for election of Chief Minister , whose seat had fallen vacant on account of resignation of previous Chief Minister Punjab, which has been accepted, therefore, unable to perform his functions due to the said cause, as per Article 53(3) of the Constitution, hence the powers of the Speaker exercised by the Respondent No.4/Deputy Speaker are the powers exercised by operation of law also under Article 53(3) of the Constitution read with Rule 13(5) of the Rules, 1997. The word 'unable to act as Speaker ' due to any cause which is biased, is to be elaborated by us. Article 53(3) of the Constitution is to be read with Article 67 of the Rules, 1997. Under Rules 5, 12 and 14 of the Rules, 1997, in absence of Speaker , the Deputy Speaker shall chair the Session. Since the Speaker is unable to preside the assembly due to his contesting for the post of Chief Minister , therefore, the Deputy Speaker shall exercise the powers of Speaker in terms of Section 53(3) of the Constitution for holding of elections which are going to be held on 16.04.2022.
15. The crux of the arguments advanced on Appellants side is that through Para No.2 of the impugned order, the learned Judge in Chambers has super-imposed Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab to preside over Session of the Assembly, to be held on 16.04.2022, which amounts to intrusion in the internal affairs of the Assembly which is barred under Article 69 of the Constitution. We venture to appreciate the contention of the Appellants in the light of different provisions of the Constitution as well as the Rules, 1997. The Deputy Speaker acts as Speaker in the light of provisions of Article 53 read with Article 127 of the Constitution. Insofar as matter in hand is concerned, admittedly, Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab having submitted nomination papers to contest against the portfolio of Chief Minister, is unable to perform his functions as Speaker, thus, Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab by the operation of law assumed the role of the Speaker .
16. According to Article 260 of the Constitution read with Rule 2(dd) of the Rules, 1997 the term Speaker includes the Deputy Speaker , thus, Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab can preside over the Session of the Assembly , scheduled to be held, on 16.04.2022, irrespective of any authorization by this Court or delegation of powers by the Speaker . During arguments, learned counsel representing the Appellants was specifically confronted with the proposition that as to whether the powers vested in the Deputy Speaker of the Provincial Assembly in terms of Rule 14(5) of the Rules, 1997 can be taken away by this Court, the unanimous answer was in negative. In this backdrop, even if Para No.2 was not part of the impugned order even then Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab had the power to preside a Session of the Assembly in absence of the Speaker .
17. During arguments, learned counsel for the Appellants put much emphasis on the fact that during subsistence of Rule 13 of the Rules, 1997, Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab cannot insist to preside over the Session of the Assembly on crucial date viz. 16.04.2022. In our humble opinion, to appreciate the said plea, a cursory glance over said rule is pivotal which for convenience of reference is reproduced herein below:-
13. Panel of Chairmen.- (1) At the commencement of a session, the Speaker shall nominate, in order of precedence, from amongst members a panel of not more than four Chairmen and in the absence of the Speaker and the Deputy Speaker , the member having precedence amongst those present at the sitting shall take the Chair .
(2) If at any time at a sitting of the Assembly neither the Speaker nor the Deputy Speaker nor any member on the Panel of Chairmen is present , the Secretary shall so inform the Assembly and the Assembly shall, by a motion, elect one of the members present to preside at the sitting. (emphasis provided).
A bird's eye view over the afore-quoted Rule makes it vividly clear that question relating to conduct of the Session of the Assembly through Panel of Chairmen only arises when the Speaker or the Deputy Speaker are not present due to any reason. Insofar as the matters in hand are concerned, admittedly , Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab is present but he cannot preside over Session of the Assembly to be conducted, on 16.04.2022, being candidate against the portfolio of the Chief Minister . Moreover , during prese nce of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab the matter cannot be referred to Panel of Chairmen at the whims of the Appellants. It is very strang e to note that on the one hand the Appellants are of the view that this Court cannot intrude into the internal affairs of the Assembly but on the other are pressing hard for passing an order in violation of the Rules, 1997.
18. With a view to establish bias and partiality on the part of Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab, learned counsel for the Appellant has referred to the fact that in his petition he impleaded Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab by name while letting free Mr. Muhammad Hamza Shahbaz Sharif despite the fact that both of them are candidates against the portfolio of the Chief Minister.
In this regard, we are of the view that since Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab challenged the order passed by Ch. Pervaiz Elahi, Speaker, Provincial Assembly, Punjab, withdrawing the delegated powers, by no cannon of law, he was bound to array Mr. Muhammad Hamza Shahbaz Sharif as party being alien to the subject of the Writ Petition (No.21711/2022).
19. In order to establish bias on the part of Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab, learned counsel for the Appellants referred to certain portions from the Writ Petition No.2171 1/2022.
There is no cavil with the proposition that Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab attacked the order passed by Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab withdrawing delegated powers on multiple grounds but the said grounds cannot be considered as concrete material to use as edifice of bias or partiality on the part of Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab. Similarly, holding of symbolic Session of the Provincial Assembly, in Flatties Hotel, on 06.04.2022, by PLM(N) and its allies, cannot be considered as conclusive proof of said fact especially when the proceedings of the said private transaction were not incorporated in the formal Notification by the Assembly Secretariat.
20. Now coming to the plea of the Appellants that since motion of No-Confidence has already been moved against Sardar Dost Muhammad Mazari, Deputy Speaker , Provincial Assembly of Punjab he cannot preside over the Session of the Assembly , to be held on 16.04.2022, we are of the view that accor ding to Rule 12(4) of the Rules, 1997 a Speaker or a Deputy Speaker cannot preside over a Session of the Assem bly wherein a resolution for his removal is being considered. As far as the matters in hand are concerned, suffice it to note that since the motion of No-Confidence is not being considered against Sardar Dost Muhammad Maza ri, Deputy Speaker , Provincial Assembly of Punjab in the Session of the Assembly , scheduled on 16.04.2022, he cannot be considered incompetent to preside over the said Session especially when Rule 14(5) of the Rules, 1997 mandates him in that regard.
21. Learned counsel for the Appellants ferociously argued that the learned Judge in Chamber through Para No.2 of the impugned order broke the firewall contained under Article 69 of the Constitution. To appreciate the said contention of the learned counsel for the Appellants, Article 69 of the Constitution is reproduced herein below:- "69. (1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure.
(2) No officer or member of Majlis-e-Shoora (Parliament) in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in Majlis-e-Shoora (Parliament), shall be subject to the jurisdiction of any court in respect of the exercise by for those powers.
(3) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article 66."
From above quoted provision of the Constitution it is crystal clear that validity of any proceeding in the Parliament cannot be called in question before the Court of law but the question involved herein is as to whether the order of the Speaker withdrawing the delegated powers of the Deputy Speaker can be considered as proceedings of the Parliament or not. The Apex Court of the country in the case of Muhammad Azher Siddique (supra) while dealing with the issue under discussion drew a line of distinction between the proceedings of the Parliament which can be assailed before the Court and those which are immune from challenge before the Courts of law. Relevant portion from the said judgment of the Hon'ble Supreme Court reads as under:- "33. Clause (1) of Article 69 of the Constitution provides that the validity of any proceedings in the Parliament shall not be called in question on the ground of any irregularity of procedure whereas clause (2) ibid provides that no officer or Member of the Parliament in whom powers are vested by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order in the Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers. The issue as to what are, and what are not, the internal proceedings of the Parliament, which are beyond the pale of jurisdiction of the Courts has been dilated upon by the superior Courts in the past on many occasions. In the case of Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98), Hamoodur Rehman, C.J., observed that whatever was not "related to any 'formal transaction of business' in the House cannot be said to be a part of its internal proceedings". In the case of Muhammad Naeem Akhtar v. Speaker , Sindh Provincial Assembly (1992 CLC 2043 ) the High Court held that the action of Speaker in accepting resignations in question would neither fall within meaning of term "any proceedings in the Provincial Assembly" used in Article 69 read with Article 127 of the Consti tution, nor such action could be described as an exercise of power by the Speaker of regulating the procedure or the conduct of business in the Assembly; thus, a constitutional petition against the action of Speaker in accept ing resignations of Members of Assembly was maintainable. In the case of Shams-ud-Din v. Speaker , Balochistan Provincial Assembly (1994 MLD 2500 ), it was held by the High Court that the internal proceedings which were carried out by the Assembly , during its session, were not amenable to the jurisdiction of Court. However , all other administrative actions by the Speaker including recruitment of employees would not enjoy immunity from judicia l review , particularly when such action of Speaker , prima facie, was in violation of existing rules or the discretion vested in him to take certain decisions in order to smoothly run the functions of Provincial Assembly Secre tariat had not been exercised judiciously . Therefore, the High Court under Article 199 of the Constitution was competent to examine the validity or otherwise of such action. The High Court of Balochistan, in the case of Mining Industries of Pakistan (Pvt.) Ltd. v. Deputy Speaker , Balochistan Provincial Assembly (PLD 2006 Quetta 36) held that the question relating to right of a person to be a Member of Hous e or to continue to sit therein was not a question pertaining to the internal proceedings of the House, but a question affecting the constitution of the House, which was not precluded from inquiry by the Courts under Article 199 of the Constitution. This Court has recently reaffirmed the relevant principles, in a judgment reported as Munir Hussain Bhatti v. Federation of Pakistan (PLD 2011 SC 407). While dilating upon the power of judicial review of the Court vis- -vis Article 69 of the Constitution, this Court noted that although the committee constituted under Article 175A of the Constitution bore the title of "Parliamentary Committee" its nature and functions were such that its proceedings were not to be considered the internal proceedings of Parliament. Its functions were of an administrative nature and related to judicial appointments rather than parliamentary business. Therefore, its proceedings were held to be reviewable by the superior courts and there was no immunity from judicial scrutiny under Article 69 of the Constitution. The same principle applies to the Speaker's ruling under Article 63(2) of the Constitution. The Speaker perfor ms the administrative task of determining whether a question of disqua lification has arisen and if in doing so she goes beyond her constitutional remit, misapplies the applicable law or misuses her discretion, then her decision will be reviewable. Article 69 will not provide her ruling any immunity from judicial review .
34. Similar approach is adopted and prevalent in the neighbouring country despite the bar of jurisdiction of courts provided in Para 7 of the Tenth Schedule of the Indian Constitution. The superior Courts of that jurisdiction have adjudicated upon the validity of the rulings of the Speaker and on several occasions have set aside the rulings passed by the Speaker . Reference may be made to the judgments reported as Ravi S. Naik v. Union of India (AIR 1994 SC 1558), Mayawati v. Markandeya Chand [(1998) 7 SCC 517]. Recent examples of cases where the Speakers' rulings on various issue s have been held to be reviewable include Jagjit Singh v. State of Haryana (AIR 2007 SC 590), Rajendra Singh Rana v. Swami Prasad Maurya (AIR 2007 SC 1305) and D.Sudhakar v . D.N.Jeevanraju [Civil Appeals Nos.4517 4521 of 201 1] decided on 25 January, 2012.
35. A survey of the above case-law makes it abundantly clear that the ruling of the Speaker is open to judicial scrutiny by the superior Courts because it does not fall within the proceedings or conduct of business of the Parliament within the contemplation of Article 69 of the Constitution. Thus, we hold that the ruling of the Speaker in the matter of referring the case to the Election Commission under Article 63(2) of the Constitution wherein a question of disqualification of a Member of the Parliament has arisen, or where the Speaker decides that no such question has arisen, is amenable to the jurisdiction of the superior Courts. It may be noted that after the decision of the 7 member Bench dated 26 April, 2012 , a copy of the judgment was forwarded by the office of this Court to the Speaker and in the meantime a petition was also filed by one Maulvi Iqbal Haider before the Speaker for making a reference to the Election Commission in terms of Article 63(2). However , on 24 May, 2012, a day before the expiry of the period of 30 days within which the Speaker had to decide the question in terms of Article 63(2), she gave a ruling that no question of disqualification of the respondent had arisen pursuant to his conviction by the Supreme Court. Admittedly , the judgment of this Court along with the covering letter was not made a part of the proceedings of the Parliament for the obvious reason that under Article 63(2) the Speaker's function is not part of the parliamentary process. Applying the test laid down in the judgments noted herein above and also considering the provision of the Constitution and the Rules of Procedure on the subject, we hold that ruling of the Speaker dated 25 May, 2012 does not fall within the "proceedings" of the Majlis-e-Shoora (Parliament) which cannot be subjected to judicial scrutiny by virtue of Article 69 of the Constitution. In light of the above discussion, the objection raised by respondent's counsel is not tenable and is overruled."
Further the Apex Court of the country in Lt. Col. Farzand Ali's case (supra) clinched the issue in the following manner: - "*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, 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."
Moreover , august Supreme Court of Pakistan in its recent short order , dated 07.03.2022, passed in Suo Moto Case No.1/2022 while spurning the objection regarding maintainability of the proceedin gs before it, declared the act of the Deputy Speaker , National Assembly , towards rejection of the motion of no confidence against the Prime Minister and ordered for voting on the said motion on 09.04.2022. If the objection, under discussion, is considered on the touchstone of the afore-referred decisions of the Hon'ble Supreme Court of Pakistan there leaves no ambiguity that the order passed by Ch. Pervaiz Elahi, Speaker , Provincial Assembly , Punjab withdrawing the delegated powers of the Deputy Speaker did not fall within the category of orders which are immune from change before this Court.
22. While arguing the matter , Mr. Imtiaz Rasheed Siddiqui, ASC, took specific plea that since applications (C.M.
No.5/2022 in W.P. No.21710/2022 & C.M. No.4/2022 in W.P. No.2171 1/2022) have not been decided by the learned Judge in Chambers the impugned order /judgment is not sustainable. Perhaps, learned counsel has raised said plea in oblivion of Para No.18 of the detailed judgment wherein the said applications have specifically been rejected.
23. Since the learned counsel representing Appellants repeatedly referred to unruly incidents in the House, to eliminate their apprehension that it would be repeated again the Inspector General of Police, Punjab, Lahore, present before the Court, states that all possible measures have been taken for safe and smooth arrival of the members of the Provincial Assembly to the Assembly have been taken whereas the internal security is to be catered for by the Secretary of the Provincial Assembly in coordination with the Security Staff. He adds that Police is ever ready to deal with any untoward situation for smooth election for the Leader of the House.
24. The Chief Secretary , Govt. of the Punjab, present before the Court, states that all the departments have already been directed to facilitate the election for the Leader of the House of the Provincial Assembly . In the event of any complaint by any side, rapid action shall be taken against the delinquent(s).
25. As a necessary corollary to the discussion made in the fore going paragraphs we have no hesitation to hold that Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab has the right to preside over the Session of the House scheduled to be held on 16.04.2022, irrespective of any observation by the learned Judge in Chambers in the impugned order/judgment. Consequently, all these appeals are disposed of with the direction to Sardar Dost Muhammad Mazari, Deputy Speaker, Provincial Assembly of Punjab to abide by his oath and to ensure conduct of elections for the portfolio of the Chief Minister in a fair, transparent and impartial manner, strictly under the Constitution and the Rules, 1997, specifically Second Schedule thereof (Procedure for Recording of Votes in the Case of Chief Minister), without being influenced by any proceedings before this Court. He is further directed to facilitate the National/International Observers, media persons, representatives of PILDAT, FAFEN and other national/international organizations etc. during the election for the portfolio of Chief Minister. No order as to costs.