1. SYED ABDUR REHMAN, J.---This is a petition under Article 199 of the Constitution. On 7-5-1992 we have disposed of this petition by following short order:-- "For reasons to be recorded later on we dismiss the petition. This would, however, not pre . Vent the Provincial Government from making arrangements for petitioner's attending the. Session of the National Assembly, if it so desires." "he reasons for above short order are as under :- Thepetitioner was elected as Member of National Assembly, of Pakistan from Constituency of N.A.-189, Liyari, Karachi. He is husband.Of Ex- Prime Minister of Pakistan and the present Leader of Opposition Mohtarma Benazeer Bhutto. It is alleged in the petition that in order to bring political pressure on his wife, the petitioner has been subjected to vaxation, the details of which are given in the petition. He is in detention since prior to the elections in connection with various criminal cases registered against him which have since been challaned in various Courts. In some cases he has been granted bail, while in some cases he continues to be in custody. One such case in which he is in custody is Case No. 220/1990 pending in the Court of Special Judge-11 (Suppression of Terrorist Activities), Karachi. In the beginning the petitioner, although in custody, was allowed to participate in the proceedings of the National Assembly, but later on his application dated 31-1-1991 in the Court of Special Judge (Suppression of Terrorist Activities) 11, Karachi seeking direction to the Superintendent, Landhi Prison to make arrangement for the petitioner to attend the National Assembly Session on 3-2-1991 was rejected. His subsequent application for attending the subsequent Session of the National Assembly also met the same fate. The petitioner contends that the Members of the National Assembly have special Constitutional privilege to attend the Sessions of the Assembly even while they are in custody in any criminal case. Refusal of the Jail Authorities to make arrangements for their attendance in the Sessions amounts to violation of the privilege.
2. Hence this petition.
2. The petition was resisted by the respondents on the ground that the petitioner or for that matter any other member of the National Assembly or any other Assembly, had no such privilege as claimed by the petitioner, either under the Constitution or under the law. It was entirely within the discretion of the Government and the trial Court to permit or not to permit an under-trial prisoner to be taken out of its jurisdiction, while under judicial custody, whether to attend the Session of an Assembly or for any other purpose.
3. We have heard Mr. Kamal Azfar, learned counsel for the petitioner and Mr. K.M. Nadccm for the respondents.
3. 4.Mr. Kamal Azfar First cited certain cases from the jurisdiction of Limited States which are as follows:-- (1)Hallo Kilbourn v. John G. Thompson (261.4w Ed. p.377).
4. (2)John Newton Williamson v. United States (52 Law Ed. p,278).
5. (3)Adam Clayton Powell v. John McCormalk (23 Law Ed. 2d p.491).
6. (4)United States v. Thomas Johnson (15 L. Ed. 2d 681 p.687).
7. The ratio decidendi of Hallet Kilbiourn v. John G. Thompson (supra) is that the freedom and debate clause includes the right to sit and vote. In John Newton Williamson v. United States (supra) it was held that the Court should examine the scope of privilege in case of conviction. In United States v.
8. Thomas Johnson (supra) it was held that in view of the principle of locus poenitentiae the Government cannot rescind its decision once it is communicated. We have gone through these judgments. We do not rind anything in these judgments which can lend support to the petitioner's case.
5. Mr. Kamal Azfar then referred us to Article 65 of the Constitution, which reads as under:-- "65.A person, elected to a House shall not sit or vote until he has made before the House oath in the form set out in the Third Schedule.
9. He contended that this Article impliedly gives a privilege to a member of the Assembly to sit and vote after he had taken an oath. The contention of Mr. Kamal Azfar is not at all acceptable. Bare perusal of this Article shows that a member cannot sit in the House until and unless he takes an oath. This Article only creates a disability. It does not give any right or privilege to a Member of the National Assembly to sit after taking oath in the House even when he is in judicial custody. Mr. Kamal Azfar then referred us to PLD 1964 SC 503 (Lt. Col. G.L. Battacharya v. The State and others).
10. The ratio decidendi of this case was that a remission of sentence becomes effective when communicated to the Superintendent of the Jail. This ruling is also not helpful to the petitioner. He then referred us to the latest decision of the Supreme Court in case of Federation of Pakistan v.
11. Public-at-Large PLD 1991 SC 459. In this ruling the question requiring determination was whether and to what extent the provisions of sections 3 and 4 of the Members of National Assembly'
12. (Exemption from Preventive Detention in Personal Appearance) Ordinance, 1903 are repugnant to the Injunctions of Islam. The Supreme Court came to the conclusion that the privilege conferred by these sections on the Members of the National Assembly negates the concept of equality of citizens before law and therefore, required amendment with a view to bring them in accordance with the Injunctions of Islam. The Supreme Court, therefore, upholding the judgment of Federal Shariat Court directed that amendments shall be carried out in the above Ordinance, by 30-6-1991 after which date the said provision shall cease to have effect. This ruling instead of supporting the view-point of the petitioner, goes against him. It will be useful to reproduce the following extract from the judgment of the Supreme Court Shariat Appellate Bench, with which we are in respectful agreement:-- "We do not rind any force in these submissions because we can take judicial notice of the fact that whenever an Hon'ble Member of the National Assembly is bus-* attending a session of the House, the Courts, on being apprised of this fact, invariably grant him accommodation and do not prevent him from discharging his duties as such Member and the argument. That his obligations to national interest deserve preference over. Individual interests is more theoretical than real. The privilege conferred on Members by sections 3 and 4 of the Ordinance appears to be designed, in point of fact, fr9m making it almost impossible to obtain justice as against him, if he is arrayed as a party before a Court so long as he continues to be a Member of the National Assembly. This results in negation of the concept of equality of citizens before law in the Islamic Republic of Pakistan. The Verses of the Holy Qur'an and the Ahadith of the Holy Prophet cited in the judgment of the Federal Shariat Court clearly establish that the provisions relating to exemption of Members of the 'National Assembly from appearance before the Courts and the provisions for the stay of proceedings of these Courts for the whole period when the Assembly is in Session and for a period of 14 days before and 14 days after the Sessions are manifestly repugnant to the Injunctions of Islam.
13. Accordingly, they require amendment with a view to bringing them in accord with the Injunctions of Islam."
14. Mr. Kamal Azrfar then referred us to the well-known case of Sardar Ali v. Muhammad Ali, reported in PLD 1988 SC 287, wherein in a case relating to pre-emption, prevalent in, N.-W.F.P., founded on MLR 115 and Provincial Acts, it was held that in view of an earlier judgment of the Shariat Appellate Bench of The Supreme Court declaring such law as repugnant to Islamic Injunctions and calling upon the, Government to amend it, the suits filed prior to the said date were to be decided in accordance with the said provisions of law and other suits filed after ' the' date so fixed by the Shariat Appellate Bench, shall be decided in accordance with the amendments proposed to be made by the Court. This ruling id therefore, not helpful to the petitioner.
6. As against this, Mr. K.K Nadeem took us through the history of the legislation relating to the privileges of the Members of the National Assembly from the days of the Government of India Act, 1935, till the days of the 1973 Constitution. The 1973 Constitution consists of Article,66. It will be useful to reproduce the said Article which reads as under:-- ---66-(1) Subject to the Constitution and to the rules of procedure of Majlis-e-Shoora (Parliament), there shall be freedom of speech in Majlis-e--Shoora (Parliament) and no Member shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Majlis-e- Shoora (Parliament), and no person shall be so liable in respect of the publication by or under the authority of Majlis-e-Shoora (Parliament) of any report, paper, votes or proceedings.
15. In other respects, the powers, immunities and privileges of Majlis-e- Shoora (Parliament) and the immunities and privileges of the members of Majlis-e-Shoora (Parliament), shall be such as may from time to time be defined by law and, until so defined, shall be such as were, immediately before the commencing day, enjoyed by the -National Assembly '9f Pakistan and the Committees thereof and its Members."
16. A perusal of theArticle and particularly sub-Article (2) would make it absolutely clear that a Member of National Assembly does not enjoy any privilege which entitles him to attend the session of the National Assembly, while he is in custody as an under-trial prisoner. Privileges which are conferred on a Member are those specifically mentioned in sub-Article (1) of Article 66 of the Constitution i.e. 'freedom of vote, freedom of speech, immunity from' proceedings in any Court in respect of any report or any vote given by, him in the Assembly or in respect of publication by or under the authority of the Assembly of any report paper votes etc. Sub-Article (2) of Article 66 'provides that in other respects, the powers, immunities and privileges of the Members of the National Assembly, shall be such as may from -time to time be defined by law and till so, defined, shall be such as were enjoyed by members of the previous National Assembly. He pointed out that no law, was passed by National Assembly after 1973 Constitution and the Members of National Assembly (Exemption from Preventive Detention in Personal Appearance) Ordinance, 1963 was, therefore, the only law which had conferred some privileges under section 3 thereof on the members which too were struck down by the Federal Shariat Court, which decision was upheld by the Supreme Court as shown above. A bill conferring certain privileges on the Members of the National Assembly was passed by the National Assembly about a week back, but was soon thereafter withdrawn by a resolution of the National Assembly. He also referred us to section 135-A, C.P.C. Which reads as under:-- 135-A Exemption of members of legislative bodies from arrest and detention under civil Process.--
(l) No person shall be liable to arrest or detention in prison under civil process--
(a) if he is member of... Legislature during the continuance of any meeting of such Legislature.
(b) if he is member of any committee of such/Legislature ... /, during the continuance of any meeting of such committee; and during the fourteen days before and after such meeting or sitting.
(2) A person released from detention under subsection (1) shall, subject to the provisions of -the said subsection, be liable to re-arrest and to the further detention to which he would have been liable if he had hot on been released tinder the provisions of subsection (1)."
17. From the perusal of section 135-A, C.P.C. It would appear that this section also does not confer any such privilege as has been claimed by the petitioner.
7. Finally Mr. K.M. Nadem relied upon the case of Farzand Ali v.Province of West Pakistan reported in PLD 1970 SC 98, where it was held that 'while 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."
18. We are, therefore, of the clear view that neither Article 66 of the Constitution, nor any other Article thereof confers privilege upon the Members of the National Assembly as is being claimed by the petitioner. We are also of the clear view that no law passed under sub-Article (2) of Article 66 of the Constitution, nor any other convention or usage having the force of law. I confers a privilege upon a Member of National Assembly, requiring that he ,should be compulsorily allowed or taken to attend the Session of the National Assembly even when he is an under-trial prisoner.
19. An interlocutory application was made by the petitioner for directing the Government of Sindh to make arrangements for the petitioner's attending the current Session of the National Assembly. We passed the following order on the said application on 30-4-1992:--- "We find from the order of the trial Court dated 4-3-1992 that the learned A.-G. Has given a statement in writing that the Provincial Government has no objection if the petitioner Asif Ali Zardari is permitted to attend the National Assembly Session at Islamabad. Mr. Naeem-ur-Rahman, Standing Counsel also states that similarly Federal Government has also no objection.
20. In view of this position, we dispose of Miscellaneous No.1522/92 and allow the petitioner Asif Ali Zardari to move the learned trial Court for granting permission to attend the National Assembly Session at Islamabad. The learned trial Court will be at liberty to pass appropriate order on such application being made before it. The main case is adjourned to a date in office. The petitioner will be at liberty to approach this Court again if he is dissatisfied with the order of the trial Court."
21. Accordingly the petitioner approached the concerned trial Court. In two of the cases the petitioner was permitted to attend the current Session by Special Judge Mr. Justice (Rtd.) Fakhruddin H.
22. Shaikh, while in the third case Special Judge Mr. Kazi Muhammad Akbar rejected the application.
23. Hence another interlocutory application was made for the same purpose. The said application was disposed of as having become infructuous in view of the fact that we heard and disposed of the main petition as shown above. We would, however, before parting with this case, like to clarify that the dismissal of this petition does not mean that the Provincial Government is prohibited by any law from making arrangements for the petitioner, who is in custody as an under-trial prisoner, to attend the Session of the National Assembly, if it proposes to do so.
24. AA./A-1242/K