' The petitioner through this Constitutional petition has prayed that `Eighth Amendment' made in the Constitution be declared null and void and of no legal effect and for appropriate direction to respondent No,1 to perform its functions in accordance with the Constitution as it stood on 4th July, 1977.
2. The relevant facts as ascertained from the petition as well as arguments of the petitioner are that the general elections for National Assembly and Provincial Assemblies were held in March, 1985. The result of the National Assembly was notified in the official Gazette dated 28th March, 1985.
The argument of the petitioner is that respondents Nos. 4 to 110 who were elected to the National Assembly were also members of Local Councils or Cantonment Boards. Therefore, in view of the provisions of Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 (hereinafter to be referred as Order of 1977) they were to resign from their membership of Local Councils/Cantonment Boards within a period of 15 days of the declaration of the result of the National Assembly and in default thereof the scat of the National Assembly was to become vacant.
It is submitted that since they did not resign from their membership of Union Councils/Cantonment Boards, therefore, they lost their seats in the House on 12th April, 1985.
3. The main plank of the arguments of the petitioner is that the Eighth Amendment, Bill of which was moved in the National Assembly towards the end of 1985, was unconstitutionally passed and thus the same is liable to he struck down. Elaborating his above contention the petitioner submitted that amendment in the Constitution as provided by Article 239 of the Constitution of the Islamic Republic of Pakistan can only he made by 2/3rd of the majority of total membership of the House.
The House then consisted of 237 members, and, therefore, in order to validly pass Constitutional amendment, 158 members had to vote in favour of the amendment. Since 107 members had lost their seats in that House in view of the position explained above, the total membership of the house thus was reduced to 132 members, This way Eighth Amendment in the Constitution was made without requisite majority and thus of no legal consequence.
4. The next contention of the petitioner is that even the Presidential Order No, 27 of 1985 promulgated on 25th of June, 1985 whereby Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 was omitted, will not validate the membership of respondents Nos.4 to 110 inasmuch as they had already lost their seats on 12th of April, 1985, much before the promulgation of the aforementioned Presidential Order. It was in the same sequence urged that the Presidential Order No,27 of 1985 was not given retrospective effect, therefore, the disabilities incurred already were to continue and did not stand saved. The learned counsel concluding his arguments on the above point submitted that the petitioner can maintain a writ of quo warranto in view of the judgments in cases State v. Zia-ur-Rehman and others (PLD 1973 SC 49), Fauji Foundation and another v. Shamim-ur-Rehman (PLD 1983 SC 457); Fazal-ul-Qadir Chaudhary v.
Muhammad Abdul Haq (PLD 1%3 SC 480; A.K. Fazal-ul-Qadir Chaudhary v. Shah Nawaz and others (PLD 1966 SC 105), Abdul Majeeb Pirzada v. Federation of Islamic Republic of Pakistan and 87 others (PLD 1990 Karachi 9) and Lt.-Col. Farzand All v. West Pakistan (PLD 1970 SC 98).
5. The only other contention raised by the petitioner is that the ground, taken by him for seeking annulment of Eighth Amendment in the Constitution on the basis of membership of 107 of the members having lost their seats, was not a ground in any other case earlier decided including the case of Abdul Majeed Pirzada, therefore, it is a question of first impression and of public importance. The matter needs to he admitted to regular hearing.
' From the arguments submitted by the petitioner the main points which emerge for determination may he summed up as under:--
(1) Whether the Eighth Amendment in the Constitution is ultra vires of the Constitution of Islamic Republic of Pakistan in view of the assertion of the petitioner that it was carried out by a number of members less than the requisite and/or by participation of members who were not validly seated in the House?
(2) Whether the vires of the proceedings of National Assembly can he gone into by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan? And
(3) Whether writ of quo warrant() sought for can he issued at the present stage in respect of an Assembly, which was dissolved over two years back?
6. Needless to add that the subsequent two propositions in fact can proceed only if the first proposition is found in favour of the petitioner. It would, therefore, he appropriate to examine the provisions of law governing the subject as brought on the Statute Book from time to time. The relevant provisions for an effective determination of this controversy and for the facility of reference may be reproduced hereunder. The dates on which these provisions had come into being are also given alongwith for fuller appreciation of the controversy:--
(1) Article 12-A of the Houses of Parliament and Provincial Assemblies (Election) Order, 1985 was added by virtue of the Presidential Order No, 12 of 1985 promulgated on 28th of February, 1985. The same reads as under:- "Bar against membership of a Local Council or Cantonment Board and a House or a Provincial Assembly at the same time. - If a member of a local council or union council constituted under any law relating to local Government or of .a Cantonment Board constituted under the Cantonments Act, 1924 (II of 1924), is elected to a seat in a House or a Provincial Assembly, he shall, within a period of fifteen days after the declaration of the result for such scat, resign his office of such member or such seat and, if he does not so resign, such scat shall become vacant at the expiration of the said period."
(2) The amendment brought in Article 12-A ibid by virtue of Presidential Order No, 16 of 1985 promulgated on 6th of March, 1985, reads as under:- "Amendment of Article 12-A. P (P.P) 0. No, 5 of 1977.--In the said Order, in Article 12-A, for the words "fifteen days" the words "four months" shall be substituted."
(3) Deletion of Article 12-A ibid made by virtue of Presidential Order No, 27 of 1985 promulgated on 25th of June, 1985, reads as under:- "Omission of Article 12-A. P. (P.P.) 0. No, 5 of 1977.--In the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, P.(P.P) 0. No, 5 of 1977, Article 12-A shall he omitted.
7. When the provisions of above three Presidential Orders are considered together the legal position which emerges is that respondents Nos. 4 to 110 who were notified as Members of National Assembly on 28th March. 1985, were to resign from their membership of Local Councils/Cantonment Boards upto 12th of April. 1985 in order to save their scats in the National Assembly in view of the provision of Article 12-A as originally enacted but before that date reached rather even before the notification of their membership Article 12-A was amended by Presidential Order No,
16. The result was that period for resignation was enlarged from 15 days to four months, which was to expire on 27th July, 1985. But before the target date the said Article 12-A was struck down and omitted from the Statute Book by promulgating Presidential Order No,27 dated 25th June, 1985. The question of the member-respondents having lost their membership, therefore, was raised without adverting to legal position as borne out from the relevant Statute as amended from time to time. This knocks out the bottom of basis of the argument advanced before us.
8. Although in view of the above discussion no further deliberations are required on the remaining controversy involved in this petition yet as these points were raised, therefore, the same are being dealt with and decided.
9. Before proceeding any further with the matter it is relevant to refer to Articles 67 and 69 of the Constitution of Islamic Republic of Pakistan, which read as under:- Article 67
10. "(1) Subject to the Constitution, a House may make rules for regulating its procedure and the conduct of its business, and shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings 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.
(2) Until rules are made under clause (1), the procedure and conduct of business in a House shall be regulated by the rules of procedure made by the President."
Article 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 Constituion 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 exercise by him of those powers.
(3) In this Article, Majlis-e-Shoora (Parliament) has the same meaning as in Article 66."
10. A perusal of Article 69 ibid shows that validity of any proceedings in the Parliament cannot be called in question on the ground of any irregularity of procedure while Article 67 shows that any proceeding in the House shall not be rendered invalid on the ground that some persons, who were not entitled to do so sat, voted or otherwise took part in the proceedings. The proceedings of the House are being challenged before us on the premises of the participation of respondents Nos. 4 to 110, who allegedly were not competent to sit in the House. Apart from the position that the allegations arc not well founded the proceedings would not be open to question legally in view of the cumulative effect of Articles 67 and 69 of the Constitution. We arc fortified in our view by the judgment of Hon'ble Supreme Court in the case of Lt.-Col. Farzand All as well as Full Bench judgment of this Court in the case of A.M. Khan Laghari v. Government of Pakistan (PLD 1967 Lahore 227) and Lt.-Col. Farzand Ali v. Province of West Pakistan 1980 SCMR 909. The relevant portion of the judgment in the case of Lt.-Col. Farzand Ali and others, reads as under:-- "Be that as it may, since this is not a direct challenge to the right of such persons to be members of the Assembly but only a collateral attack upon their right to participate in the proceedings of the House in respect of the impugned Constitutional Amendments themselves, I do not consider it necessary to deal with this Question any further as I have held that even assuming that they were disqualified they participated in the proceedings bona fide in assertion of a claim of right and, as such, the legislative measures passed by the Assembly with their participation were protected by sub-clause (d) of clause (1) of Article 110 of the 1962-Constitution."
' The other portion of the judgment reads as under:-- "Upon these principles it has been strenuously argued by the learned Attorney-General that the Third, Fourth and the Sixth Constitutional Amendments are now unassailable, because, at any rate, the allegedly disqualified respondents had acted as de facto members, for, they had acted under the bona fide belief that they were entitled to so act and had at least a fair colour of title and they have also performed their duties with public acquiescence. They were not purely intruders.
Therefore, their acts even apart from the provisions of sub-clause (d) of clause (1) of Article 110 were as good as those of de jure members of the National Assembly. I am of the opinion that there is a great deal of force in this contention and since this is not a direct attack upon their right to continue as members, I am also of the opinion that their acts should not be invalidated merely because they could have been found in a proper proceeding under Article 98(2)(h) to be disqualified from continuing as Members of the House. To do so collaterally in proceedings not taken to test the validity of their title directly would lead to serious inconvenience to the public and those individuals, whose interests may have been affected by the individuals whose interests may have been affected by the legislative measures enacted in the meantime. This de facto doctrine is a doctrine of necessity to bring about regularity and prevent confusion in the conduct of public business and promote security of private rights."
11. The relevant facts giving rise to the appeal in the above case were that some of senior bureaucrats were being retired compulsorily under Article 178 of the Constitution of 1972 as amended by Fourth and Sixth Amendments. The said civil servants challenged the validity of the Third, Fourth and Sixth Amendments of the Constitution. Their writ petitions were dismissed. They agitated the matter in the Supreme Court. The main challenge, to the validity of three Constitutional amendments was that the same were not made by the requisite majority of 2/3rd of the total number of Members of National Assembly as required under Article 209 of the Constitution of 1962. It was urged that according to Article 103(2) of the said Constitution, persons holding office of profit in the Service of Pakistan were disqualified from being elected as member of the Assembly. This was amended by Third Amendment on 15-6-1965 and the words "other than an office specified in the 5th Schedule" were added. It was submitted that Third Amendment was carried out by majority of 113 votes, out of which about 33 persons, who voted in favour of the amendment were disqualified. It was urged that if this number is excluded from 113, then the result would be that the requisite 2/3rd majority would be lacking. The total membership of the House at that juncture was 156. It was added that same was the position in respect of 4th and 6th Amendments. The basic question in that case was whether quo warranto can be issued. This question was answered in affirmative. The next question was that whether High Court rightly took a view that act of voting and right to vote were matters pertaining to internal proceedings of the Assembly, therefore, protected. The view of the High Court was upheld and the relevant portion of the judgment reads as under:-- 'The next contention advanced on behalf of the appellants is that the High Court was also wrong in taking the view that both the act of voting and the right to vote were matters pertaining to the internal proceedings of the Assembly as they were both activities which took place within the precincts of the House. It is argued that the contention of the appellants was misunderstood in the High Court, for, the challenge here was not to the right to vote in the House or to the manner of the exercise of the vote but to the defective constitution of the House and to the title of the respondents Nos.4 to 38 to participate in its proceedings. Therefore, neither sub-clause (d) of clause (1) of Article 110 nor clause (1) of Article 111 constituted a bar to the proceedings."
' The other relevant portion of the judgment dealing with this point is reproduced as under:- "Now clause (1) of Article 111 provides that "the validity of any proceedings in an Assembly shall not be questioned in any Court" and sub-clause (d) of clause (1) of Article 110 provides that "no proceeding in an Assembly shall be invalid by reason only that a person who was not entitled to do so was present at or voted or otherwise participated in the proceedings." It will thus be observed that the Courts are debarred from questioning the validity of a proceeding in an Assembly merely by reason of the fact that some one was present at or voted or otherwise participated in its proceeding although he was not entitled to do so.
' On the basis of these provisions the High Court has held, relying on two decisions of this Court in the cases of Ahmad Saeed Kirmani (1) and Badrul Haq (2) that voting being a part of the internal proceedings of the Assembly, an enquiry with regard to its validity is barred by Article 111 and that this is so even where the attack is on the basis of want of qualification of a voter."
' Thereafter the term 'internal proceedings' was discussed. The relevant portion of the judgment reads as under:-- "It will be observed that in none of these cases had any attempt been made to define as to what constitutes "internal proceedings" but this much is clear that they do not extend to anything and everything done within the House. Thus as general rule a criminal act done in the House would perhaps not be outside the course of criminal justice (vide observations of Stephen, J. In Bradlaugh v. Gossett). The test indicated by Sir Erskine May in his book on Parliamentary Practice is as to whether what is said or done 'forms part of a proceeding of the House in its technical sense, i.e, the formal transaction of business with the Speaker in the Chair or in a properly constituted committee'. It would be neither possible nor desirable to attempt any exhaustive classification of the matters that may be comprised within the term 'internal proceedings' but it will be sufficient for my purpose to indicate that whatever is not related to any 'formal transaction of business' in the House cannot be said to be a part of its 'internal proceedings': ' The Honourable Supreme Court distinguished the judgment in the cases of A.K. Fazl-ul-Qadir Chaudhary and Fazl-ul-Qadir Chaudhary and held that the dispute in these cases related to particular member and his right to occupy seat in the Assembly. The same are not relevant.
Reference, on the point of jurisdiction of the Courts to examine the proceedings of the House, can also be made to the judgment of this Court in the case of Wasi Zaffar v. Speaker, Provincial Assembly (PLD 1990 Lahore 401).
' The learned Court examined the question whether the participation of persons unqualified to occupy a seat rendered the proceedings of the Assembly illegal and it was held:-- "Having said this, however, the question has still to be considered as to whether even assuming that Lambardars, Chairmen of Union Councils and Reservists of the Armed Forces are persons holding offices of profit in the service of Pakistan, the participation of such persons in the proceedings of the Assembly rendered the proceedings of the Assembly altogether void. It is the contention of the respondents that sub-clause (d) of clause (1) of Article 110 cures this defect and this has also found favour with the High Court. The appellants, however, contend that this cannot be. If the National Assembly had, it is argued, illegally added to its Members than on the dictum of Munir, C.J. In the case of Federation of Pakistan v. Ali Ahmad Hussain Shah, all laws passed with the participation of such illegally added members would be void and in particular a Constitutional amendment would be ineffective, for, by excluding those members the majority required by Article 209 of the Constitution of 1962 would not be there.
"I am unable to accept this contention of the appellants, because, even on their argument, since this was a continuing disqualification and not a disqualification which had been acquired subsequent to election, the Members concerned could not be unseated until they were held by a competent Court to be disqualified. Their right to sit and participate in the proceedings of the House, until such time would not be wholly illegal, for having been duly elected to the House, they would have prima facie a right to sit and participate in its proceedings. Article 104 would not be attracted to their cases, for, their disqualifications could not be said to have arisen after their election and, as I have already indicated, if there be no other machinery save that provided by an information in the nature of a quo warranto for ousting them from the House then it can hardly be said that the usurpation of office by them was wholly without colour of title. In the circumstances it would lead to very serious consequences if all proceedings of the House in which they had participated during this period are declared to be void. It seems to me that the provisions of sub- clause (d) of clause (1) of Article 110 were designed to meet precisely such eventualities in consonance with the general principle that the acts of statutory functionaries or corporate bodies affecting third persons should not be invalidated merely by reason of the fact that the funtionary concerned or some of the members of a Corporate Body are subseauently discovered to have been disqualified from being entitled to hold that office or to participate in or vote at proceedings of that corporate body. This is a salutary and beneficial provision for avoiding uncertainties regarding official acts which would cause serious inconvenience to the public and is to be found in almost all statutes setting up corporate bodies, which are considered in law to have a separate and distinct entity from those of its members.
"There is a further reason which appears to me to be of sufficient importance to merit consideration in this connection. It is this that it cannot be said that the Members concerned in the present case acted either mala fide or totally without colour of any right or title. It has to be remembered that in the present case the elections of as many as eight of such Members were actually unsuccessfully challenged by Election Petitions and apart from that there was at least one decision of the High Court in the case of Nawab Sajjad Ali Khan v. Ch. Fazal Ilahi and another (1) where it had been held that a Lambardar is not a holder of an office of profit in the service of Pakistan. An appeal taken from this decision to the Supreme Court was unfortunately not decided on merits as it was held to have abated under clause (7) of Article 2 of the Laws (Continuance in Force) Order, 1958. These circumstances may well have led them to believe that their right to be Members of the House had become perfected and was no longer assailable. They were, therefore, not mere intruders and until they were held to be disqualified by a competent Court there was no other authority which could prevent them from participating in the proceedings of the House. I would, therefore, hold that clause 1(d) of Article 110 protected their acts."
12. The provisions of Articles 110 and 111 of the Constitution of 1962 are para materia to Articles 67 and 69 of the present Constitution while Article 209 is parallel to Article 239 of present Constitution and the provisions of Article 103 are similar to that of Article 12-A of the Order, 1977. These provisions having been exhaustively and authoritatively dealt with by the Hon'ble Supreme Court in the case of Lt.-Col. Farzand Ali, which is applicable with full force to the case in hand. Therefore, the argument that it is a point of first impression requiring further consideration is without any merit.
13. This is not all. The applications for review of the cited judgment were also dismissed and decision is reported as 1980 SCMR 909.
14. This brings us to the third proposition as to whether it is a fit case for issuance of writ of quo warranto. Suffice it is to observe that Assembly having been dissolved over two years back, it is not a fit case for issuance of a writ of quo warranto and not a case covered by Article 199(1)(h)(ii). The following passage of the judgment of Hon'ble Supreme Court in the case of Lt.-Col. Farzand Ali may be reproduced hereunder as the same squarely answers this proposition as well:-- "In any event now that the House has itself been dissolved, no relief by way of quo warranto can be granted as the matter has become only of academic interest."
15. We deem it appropriate to observe that although some grounds have been impliedly raised objecting to the validity of the action of the President dated 6th August, 1990 whereby the last Assembly was dissolved under Article 58(2) of the Constitution but the same have not been urged before us by the petitioner at Bar, therefore, we do not feel called upon to deal with them. More so when the Presidential Order has not been impugned in the writ petition. The result is that there is no merit in the petition. The same is dismissed in limine.