"Perused the record, perused the applications purporting to be the resignations of M/s. Qabool Muhammad Shah and Hanif Soldier submitted by Syed Qaim Ali Shah, Leader of Opposition and Nisar Ahmed Khuhro, Deputy Leader of Opposition in Sindh Assembly. Also perused the applications by the said MPAs, dated 25-3-91 and so also the opinion by Secretary, Assembly and Law Department of Sindh.
' Syed Qaim Ali Shah, Leader of Opposition and Nisar Ahmed Khuhro, Deputy Leader of Opposition in the Provincial Assembly of Sindh have submitted two letters purported to have been written by the MPAs Hanif Soldier and Syed Qabool Muhammad Shah communicating their resignation from membership of the Provincial Assembly of Sindh. The letters addressed to the Speaker of the Sindh Assembly were presented in the. Assembly Sercretariat on 9-1-1992 and put up before me on the same date.
' Since the letters do not bear any date, the resignations, subject to proof, will be deemed to have been tendered on 9-1-1992, the date on which they were presented.
' It is pertinent to point out that M/s. Qabool Muhammad Shah and Hanif Soldier in their letters, dated 25-3-91 and 26-3-91 respectively addressed to the Speaker had informed that they had not resigned from membership of the Sindh Assembly and further that any such communication submitted to the Speaker on their behalf may not be considered, as they had no intention whatsoever to resign from membership of the Assembly. The question is whether the letters of resignation presented by Mr. Nisar Khuhro, MPA on behalf of the above members in the face of the denial of having submitted the resignations by the Members can be effective on the Speaker in terms of Article 64 of the Constitution. It is my bounden duty to consider the letters of resignation presented by Mr. Nisar Ahmed Khuhro in juxta position with the letters submitted by the Members themselves that they had not tendered the resignation and had never intended to do so. When two sets of the letters are considered together, the only possible conclusion that can be reached is that the members had not resigned their seats in the Assembly. It was held' in the decision reported in PLD 1966 SC 105, that when a Member informs the Speaker before a letter purporting to communicate his resignation is received by the Assembly Secretariat that he had not resigned from membership of the Assembly, such resignation will have no effect.
' The cases of M/s. Syed Qabool Muhammad Shah and Hanif Soldier are identical to the case of Fazalul Quader Chaudhry v. Syed Shah Nawaz and others adjudicated upon by the Full Bench of the Supreme Court as reported in PLD 1966 SC 105. The following observation of their Lordships of the Supreme Court in the aforesaid case is very pertinent:--- 'If such a letter is sent by post, the possibility is still open that before it is delivered to the addressee, it may be withheld at the instance of the sender, by the Postal Authorities on the latter being satisfied that the sender did not want it to be delivered at its destination. The Post Office acts in such a case as agent of the sender and not of the addressee. Again, if the letter is sent through a messenger and the sender changes his mind, follows the messenger and overtakes him by a quicker means of transport, so as to prevent him reaching his destignation, the resignation, admittedly, would not take effect.'
' In view of the circumstances and facts mentioned above, the letters of resignation presented by Mr. Nisar Khuhro, MPA purporting to have been written by MPAs, Syed Qabool Muhammad Shah and Hanif Soldier cannot be treated as resignations within the meaning of Article 64 of the Constitution and are of no legal effect so as to warrant any action on my part.
(Sd.)
A.R. Khan 16-1-1992.
4. We have heard at length the arguments of Mr. Rasheed A. Akhund, Advocate for the petitioner, Mr. Sharaf Faridi, for respondent No,1 and Mr. Muhammad Ali Sayeed for the Speaker (respondent No,2). Mr. Rasheed Akhund raised the following contentions:---
(a) In the absence of coercion or pressure, the resignation is valid and the Speaker in such a case can only enquire as to the genuineness of the resignation letter.
(b) The moment the resignation reaches the Speaker, it becomes effective and irreversible and the question of withdrawal of resignation does not arise.
(c) If a member is permitted to withdraw his resignation because of change of his mind or as a consequence of his defection from his party on whose ticket he had been elected, it would amount to repudiation of his Oath taken under the Constitution.
(d) The Speaker is also duty bound under his Oath to preserve the Constitution and to discourage defection.
' It may be observed here that according to the petitioner, respondent No,1, Syed Qabool Muhammad Shah, after defecting from his party, PPP, has joined hands of the Government and has become a Minister. It is admitted by Mr. Sharaf Faridi that Qabool Muhammad Shah is a sitting Minister in the Sindh Cabinet.
5. Developing his submission, Mr. Rasheed A. Akhund submitted that once a resignation had been given to the Party High Command voluntarily, it cannot be withdrawn and the ratio in Fazlul Quader Chaudhry's case PLD 1966 SC 166 was not applicable. Reference was made to section 8-B of the Political Parties Act, 1962, which provides for a remedy to unseat a defecting member through a reference to the Election Commission. According to Mr. Rasheed Akhund, he remedy under section 8-B is available but despite the validity of such remedy, other remedies can be resorted to including a petition under the Constitutional jurisdiction of the High Court to unseat a member who has defected from his party.
' On the question of Oath to be taken by member of a Provincial Assembly, reference was made by Mr. Rasheed Akhund to Articles 65 and 127 of the Constitution and read the form of the Oath in the III Schedule, especially the following words:-- " and that I will preserve, protect and defend the Constitution of the Islamic Republic of Pakistan ...."
' Reliance was placed on the Full Bench decision of this Court in the case of Khalid Malik v.
Federation of Pakistan PLD 1991 Kar. 1 - the dissolution of Assembly's case. Attention was invited to the observations in the said judgment on horse-trading and defection. Reliance was also placed on the case of Ahmed Tariq Rahim reported in PLD 1992 October 646--also in relation to horse- trading and defection. Reliance was also placed in the same 'context on AIR 1978 SC 694. Finally, it was submitted that the counter-affidavit of the Speaker shows his partiality and support for the Government.
6. In his submission, in reply, Mr. Sharaf Faridi, learned counsel for the respondent No,1, stated that the case put up by Mr. Rasheed Akhund on behalf of the petitioner about horse-trading and defection has not been set up in his pleadings by the petitioner. He drew the attention of the Court to paras. 2, 3 and 4 of the memo. of petition. Relying upon paras. 4 and 5 of the counter-affidavit, Mr. Sharaf Faridi submitted that the respondent No,1 had not attended the party meeting on 7-1- 1992. The argument of Mr. Sharaf Faridi was that the resignation, even if given, was not irrevocable.
7. Mr. Muhammad Ali Sayeed also opposed the petition, while appearing on behalf of the Speaker.
According to Mr. Muhammad Ali Sayeed, in case the arguments of Mr. Rasheed Akhund on the question of defection were accepted, it will make section 8-B of the Political Parties Act, 1962, negatory. According to Mr. Muhammad Ali Sayeed, the Speaker could not go into the question of defection. Reliance was placed by Mr. Muhammad Ali Sayeed on the judgment of the Supreme Court in the case of Mirza Tahir Beg, reported in PLD 1976 SC 504. According to Mr. Muhammad Ali Sayeed, no case has been made out for interference with the order dated 16-1-1992 passed by the Speaker.
8. The question of withdrawal of resignation letters has been considered by this Court in the case of Muhammad Naeem Akhtar v. The Speaker, Sindh Provincial Assembly, 1992 CLC 2043. In the said judgment, it has been held by this Court that Article 64(1) of our Constitution does not require acceptance of the resignation by the Speaker for the resignation to become effective and as a consequence the seat becoming vacant but from this it does not follow that the Speaker has no role at all to play in this exercise of resignation and that, in case the Speaker has any doubts about the genuineness or voluntary nature of the resignation received by him, or he receives information from the concerned member or on his behalf that the resignation is not genuine or has not been given voluntarily, the Speaker is then required to hold an enquiry to satisfy himself as to the genuineness or voluntary nature of the resignation and if in such inquiry he finds that the resignation is not genuine or voluntary, he will record such finding, in which event resignation will become ineffective and the member will continue to retain his seat. It was further held by this Court that if any member -wanted to back down or retract from his resignation, he should give public statement or write a letter to the Speaker to that effect declaring that the resignation is no longer valid and should not be acted upon.
9. In the present case, it has been noticed that, in his counter-affidavit, respondent No,1 had taken the plea that, after one or two months of the elections held in 1990, all the members elected to the Provincial Assembly as PDA Candidates were asked to give blank letters with an understanding that if the need arose, the resignations would be submitted personally to the Speaker by each member of the Assembly elected on PDA ticket. He did not deny that he had addressed a letter to the Speaker in pursuance of the said decision but he did not sign the same and it was made clear by him that before the same was presented, he would put his signature thereon and that he had neither authorised any one to present the resignation without his prior permission nor he had signed the said letter. In the rejoinder-affidavit filed by petitioner, Nisar Ahmed Khuhro, the contents of para. 4 are denied but no mention is made as to when the resignation letter was taken from the respondent No,1. The specific averment by respondent No,1 that he did not attend the party meeting on 7-1-1992 has also not been specifically denied by the petitioner in the rejoinder. In the circumstances, it can be assumed that the respondent No,1 had not attended the party meeting on 7-1-1992 and that his resignation letter, if at all bears his signature, was taken much earlier and that the resignation letter was not presented by respondent No,1, but by the petitioner.
10. The Speaker has, inter alia, relied upon the letter dated 25-3-1991 of respondent No,1, addressed to the Speaker, which reads as follows:--- "To Speaker, ' Provincial Assembly of Sindh, Karachi ' Sir, ' This is to bring to your notice, that I have no intention of resigning from the membership of the Provincial Assembly of Sindh, nor have I authorised any person to present any such application, on my behalf, I am making this application which may be kept on the record, so as to prevent any person or group from playing political mischief. If any such application purporting to bear my signature is presented, it may not be considered as resignation tendered by me. Yours sincerely (Sd.)
(SYED QABOOL MUHAMMAD SHAH".)
' Attested copy of the said letter has been filed alongwith memo. of the petition. Then, the respondent No,1, alongwith his counter-affidavit, has also filed a copy of the letter dated 16-1-1992, addressed to the Speaker, which reads as follows:--- "The Speaker Sindh Assembly, Karachi Subject: SO-CALLED RESIGNATION. Dear Sir, ' I would like to state, inform and place on record that I have come to know through Press/News from different sources that Syed Qaim Ali Shah and Mr. Nisar Ahmed Khuhro have presented an application purporting to be a resignation of mine before your goodself, which neither I have signed nor have I authorised them to present as I do not have any intention to resign from the seat of Provincial Assembly, and it would be pertinent to mention here that as a matter of abundant caution and to prevent any move to damage my interests I had already through an application dated 25-3-1991 addressed to you, indicated that I had not resigned from the membership of the Provincial Assembly of Sindh nor did I have any intention to do so.
' This is for your kind information.
(Sd.)
(SYED QABOOL MUHAMMAD SHAH)
MPA."
' In the order, dated 16-1-1992, the Speaker has not referred to the letter dated 16-1-1992, relied upon by respondent No,1, but he has referred to the letter dated 25-3-1991 of respondent No,1 (reproduced hereinabove), in which respondent No,1 had made it clear to the Speaker that he had no intention of resigning nor he had authorised, any person to present any application for resignation on his behalf and he wanted the letter, dated 25-3-1991 to be kept on record so as to prevent any person or group from placing any resignation letter before the Speaker. It was further informed that if any such application purporting to bear the signature of Syed Qabool Muhammad Shah was presented, it may not be considered as resignation tendered by him. As we have already observed, petitioner has not made out the case that the resignation letter had been signed by respondent No, 1 after 25-3-1991. It may be repeated here that, respondent No,1, in his counter- affidavit, averred that one or two months after the elections held in October, 1990, resignations had been obtained from elected members of PDA and he had written a letter of resignation but did not sign the same and had told the party leadership that if it is decided to present the resignation, the respondent No,1 would sign the resignation letter and present himself. These averments in the counter-affidavit have not been specifically denied in the rejoinder by the petitioner. It would, therefore, follow that if at all any resignation letter was signed and given by respondent No,1 to the party leadership, it was prior to 25-3-1991 and on 25-3-1991, the aforesaid letter had been written by the respondent No,1, which is available on the record of the Speaker. In our view, no illegality has been committed by the Speaker in taking a decision in this matter by considering the two documents together, that is, the resignation letter presented by the petitioner on 9-1-1992 and letter dated 25-3-1991 of the respondent No,1, already on record. Admittedly, the respondent No,1 had not presented any resignation himself to the Speaker.
11. This Court has already taken the view in the case of Muhammad Naeem Akhtar v. The Speaker, Sindh Provincial Assembly 1992 CLC 2043 that if a resignation has been given by a member of the Assembly and he wants to retract from the said resignation, he may do so by giving a public statement or by writing a letter to the Speaker to that effect declaring that the resignation was no longer valid and should not be acted upon. In this case, respondent No,1 has gone further by writing a letter dated 25-1-1991 that he has not sent any resignation letter and in case any resignation letter was presented by somebody else, it should not be accepted as his resignation letter.
12. The contention, that the resignation letters given by the members of a political party to their leadership are irrevocable, is also without force. Resignation letter can always be intercepted by its maker before it reaches the Speaker, the competent authority, and in such a case the question of coercion or duress is irrelevant. In such a case, the resignation, if at all given, stands revoked and cannot be acted upon to declare the seat of the maker of the resignation letter vacant.
13. The contention, on which great emphasis was laid by Mr. Rasheed A. Akhund, relates to horse- trading or defection. According to learned counsel for the petitioner, the respondent No,1 defected from People's Party and joined the Government as a Minister and this being a clear case of defection, his seat stands vacated. There may be substance in the submission of the learned counsel for the petitioner that respondent No,1 has defected from his party and lent his support to the Government by joining the Sindh Cabinet, but, in our view, this question is outside the jurisdiction of the Speaker while considering the letter of resignation. The appropriate proceedings to be taken in such a case is to approach the Election Commission through a reference under section 8-B of the Political Parties Act, 1962. It may be added that, admittedly, on behalf of Pakistan People's Party, three references have been filed before the Election Commission which are pending adjudication before the Election Commission.
14. In the circumstances of this case, where the letter of resignation, even if signed by respondent No,1, stood revoked by letter dated 25-3-1991 and on the question of defection/horse-trading, the appropriate proceedings being available under section 8-B of the Political Parties Act, 1962, and the Speaker not being competent to declare the seat of a member vacant on the ground that he has defected from his party, the Speaker had no power or authority to declare the seat of the respondent No,1 vacant on the ground that he had violated his Oath (if at all there was any violation of the Oath).
' In the circumstances, we are of the view that no case has been made out in Petition No,D-297 of 1992 for interference with the order, dated 16-1-1992, passed by the Speaker in the case of respondent Syed Qabool Muhammad Shah.
CONSTITUTIONAL PETITION NO.D-296 OF 1992:
15. In this Constitutional petition, petitioner is Syed Qaim Ali Shah, President, Pakistan People's Party, Sindh and leader of the Opposition Party in the Sindh Provincial Assembly. He has filed this Constitutional petition challenging the order, dated 16-1-1992, passed by the Speaker in respect of a resignation letter alleged to have been signed by respondent No,1, Muhammad Hanif Soldier.
According to the petitioner, respondent No,1 belongs to Pakistan People's Party "and as such was awarded party ticket for the general elections held in October, 1990, from the platform of Peoples Democratic Alliance of which Pakistan People's Party is the major component". Respondent No,1 contested the elections from Constituency P.S. 88 Karachi South-IV and was elected. According to the petitioner, on 7-1-1992, a meeting of the Sindh Provincial Executive Committee of Pakistan People's Party was called by the petitioner and it was held at Hyderabad which meeting was also attended by the Party co-Chairperson, Mrs. Benazir Bhutto, and in the said party meeting it was decided to communicate to the Speaker of the Sindh Assembly a resignation from his seat signed by respondent No,1 and addressed to the Speaker. According to the petitioner, the said resignation was handed over to the petitioner who was directed by the party High Command to communicate the said resignation to the Speaker. On 9-1-1992, accompanied by the Deputy Opposition Leader in the Sindh Assembly, Mr. Nisar Ahmed Khuhro, the petitioner called upon the Speaker and communicated to him the said resignation. On 16-1-1992, the impugned order was passed by the Speaker which has reproduced above in the case of Syed Qabool Muhammad Shah. As noticed, the said order, dated 16-1-1992 of the Speaker deals with the cases of respondents in both these petitions, namely, Syed Qabool Muhammad Shah and Hanif Soldier.
16. We had heard the arguments of Mr. Rasheed Akhund, learned counsel for the petitioner, Mr. Sharaf Faridi, learned counsel for the respondent No,1, Mr. Muhammad Ali Sayeed, Learned counsel for the respondent No,2, and the Advocate-General, Sindh, who had appeared on Court notice.
17. The facts and grounds in this petition are practically identical to the facts and grounds in Petition No,297 of 1992, filed by Nisar Ahmed Khuhro, the only difference being that in the present petition the petitioner is Syed Qaim Ali Shah who had presented the alleged resignation of respondent No,1, Hanif Soldier, to the Speaker, whereas, in Petition No,297 of 1992 Deputy Leader of Opposition, in the Sindh Assembly Nisar Ahmed Khuhro had presented the resignation letter alleged to have been signed by Syed Qabool Muhammad Shah. The other difference in the two petitions is that in Petition No,297 of 1992 a letter dated 25-3-1991 was addressed by Syed Qabool Muhammad Shah to the Speaker whereas in this case respondent No,1, Hanif Soldier, addressed a letter dated 26-3-1991 to the Speaker. The wordings of the letters are also different. Hanif Soldier's letter dated 26-3-1991 is reproduced here: "The Speaker, Sindh Assembly, Karachi Dear Sir, ' I have the honour to state that as you are now well aware that I am very disturb mentally nowadays and also not good health. If whenever I am not present self in the Assembly or meet with you, no any application or resignation will be accepted on my behalf without my presence. with regards, Yours faithfully, (Sd.)
(Al-Haj M. Hanif Soldier)
M.P.A."
' There is also a difference in the contents of the resignation letter relied upon in Constitutional Petition No,297 of 1992 and the resignation relied upon by the petitioner Syed Qaim Ali Shah in this case which is reproduced here: {{IMAGE}} {{URDU TEXT}}
18. Same arguments were advanced by the learned counsel in this petition as had been advanced in Constitutional Petition No,297 of 1992. In this petition also, the resignation letter relied upon by the petitioner is undated and the averment in para. 4 of the counter-affidavit of respondent No,1 that he had not attended the meeting of the Sindh Provincial Executive Committee of Pakistan People's Party held on 7-1-1992 and that one or two months after the general elections held in October, 1990, all the members elected to the Provincial Assembly as PDA candidates were asked to give blank letters of resignations with an undertaking that if the need arose, the same would be submitted personally to the Speaker by each member of the Assembly elected on PDA ticket, have not been specifically denied by the petitioner in his rejoinder. In the circumstances, as in the case of Syed Qabool Muhammad Shah, in Constitutional Petition No,297 of 1992, in this case also it is to be assumed that the resignation letter, even if in the handwriting of respondent No,1, Hanif Soldier, and signed by him was written before March, 1991, and by the letter dated 26-3-1991, copy of which letter has been filed by the petitioner himself, respondent No,1 stated very clearly that unless he was present in the Assembly or met the Speaker no application or resignation tendered on his behalf be accepted. Admittedly, the resignation letter had not been submitted by the respondent but was submitted by the petitioner. For the reasons and grounds mentioned in our detailed judgment in Constitutional Petition No,297 of 1992, we are of the view that the Speaker did not commit any illegality in ignoring the said resignation letter. In the circumstances, we find that no case has been made out for interference in the impugned order dated 16-1-1992.
19. As a result, Constitutional Petitions Nos.D-296 and D-297 of 1992 are dismissed but with no order as to costs.