SHAFZUR RAHMAN, J: --This petition challenging the judgment of the High Court of Sindh dated 17- 3-1993 has come up for disposal after notice to all the parties concerned.
2. The petitioner was elected a member of the Sindh Provincial Assembly in the general elections held in October, 1990 from Constituency PS--76 Karachi(W)-IV. He was also elected as Speaker of the Provincial Assembly Sindh. A letter of resignation allegedly signed by the petitioner and dated 27-6-1992 was received by the Deputy Speaker. It reads as hereunder:--- "(Abdur Razique Khan)
It was followed by another letter, dated 12-7-1992 addressed to the Governor of Sindh with a copy to the Deputy Speaker and many others. It is reproduced verbatim as follows:--- "(Abdur Raziq Khan)
3. These documents remained unattended by the Acting Speaker for various reasons as conflicting reports had been appearing in the press about such resignations etc. Due to inaction of the Acting Speaker a number of Constitution Petitions were filed in the High Court, and these being Constitution Petitions Nos. D-2543/1992, D-2592/1992 and D-2599/1992, seeking a direction from' the High Court to the Acting Speaker to take a decision on such resignations pending with him since June, 1992. In the High Court the Acting Speaker undertook to decide the matter by the end of November, 1992. He published a notice in the newspapers on 23-11-1992 calling upon the petitioner to appear before him on 28-11-1992 with regard to the resignation and on his non-appearance, he came to the conclusion that the resignation submitted in June was under his signatures but the document repudiating it subsequently was not under his own signatures. On these findings the Acting Speaker issued the notification as hereunder on 28-11-1992:--- "Under Article 64 read with Article 127 of the Constitution of the Islamic Republic of Pakistan, Mr. Abdul Razique Khan; MPA has resigned his seat from Constituency PS-76 Karachi (W)-IV.
Thereupon, the seat has become vacant with effect from 27th June, 1992."
4. A Constitution petition was riled by the petitioner stating that while he was holding the office of Speaker he was forced to leave his place of residence along with the members of his family because of the differences with his political party and had virtually to go in hiding for the sake of his own safety as well as for the safety of his family members. In response to a public statement of Mr. Azim Ahmad Tariq on 28-11-1992 he made his public appearance and forthwith challenged his resignations by sending a telegram to the Chief Justice of High Court on 29-11-1992 and by filing a Review Petition in the Petitions in which the High Court had proceeded to decide the matter on receipt of the notification of the Acting Speaker dated 28-11-1992. That Review Petition was withdrawn when the Constitution petition was filed. He challenged the acceptance of the resignation on the ground that it was neither voluntary nor submitted to the appropriate authority nor was intended to be used as resignation from membership of the Sindh Assembly or from the post of Speaker of that body. The High Court came to the conclusion as hereunder:--- "The resignation was received in June, 1992. Apart from the letter of July, 1992, received by the petitioner, in respect whereof we have held that no illegality was committed by the Deputy Speaker in ignoring such letter, there was no communication whatsoever from the petitioner with the Deputy Speaker. The petitioner has only stated in his petition that he had gone underground and he "re-surfaced" on 29-11-1992, after the statement in the Press by Mr. Azeem Tariq, Chairman of M.Q.M. That members of the party should now come out in the public. It is not the case of the petitioner that he was during all this period of confinement hiding at a place or places where there was no means of communication available to him. The fact that he became aware of the statement given to the Press by Mr. Azeem Tariq confirms the fact that either newspapers and/or Radio/TV facilities were available to the petitioner and, therefore, he must have been aware of the news about his resignation letter having been received by the Deputy Speaker and the Deputy Speaker awaiting a contact from the petitioner. The petitioner has also not set up a case that no person or persons were available who could communicate any message or letter from him to the Deputy Speaker. At no point of time, from June, 1992 to 28-11-1992, any contact was made by the petitioner with the Deputy Speaker which could easily have been made. The Deputy Speaker could not wait indefinitely for the petitioner to re-surface and then contact the Deputy Speaker. The petitioner must have been aware of the resignation letter having reached the Deputy Speaker and it was, therefore, his responsibility to contact the Deputy Speaker as soon as possible and inform him about any defect in the resignation letter or that the resignation letter had not been tendered by him.
In the circumstances, we are of the view, that no case has been made-- out by the petitioner for interference with the Notification issued on 28-11-1992 by the Deputy Speaker/Acting Speaker giving effect to the resignation of the petitioner."
Mr. K.MA. Samdani, Advocate,. The learned counsel for the petitioner has reiterated the grounds taken up in the Constitution petition and urged that the inquiry envisaged in the two decisions of the Supreme Court in Mr. A.K. Fazalul Quader Chaudhury v. Syed Shah Nawaz PLD 1966 SC 105 and Mirza Tahir Beg v. Syed Kausar Ali Shah and others PLD 1976 SC 504 and as required by the Constitutional provisions applicable to the case was never undertaken. The more comparison of signatures and authenticity could not have either reflected or proved on the mental state of the person who had submitted these resignations. Not only the signatures had to be proved but the voluntary character of the resignations and the intention that they were to serve as resignations as not to be used for collateral purpose and to that end should have been transmitted to the authority competent to act on it. All these requirements, according to the learned counsel for the petitioner, remained un-established from the nature of inquiry conducted by the Acting Speaker.
6. Mr. Muhammad Ali Sayeed, Advocate, the learned counsel for the respondent No.2/Acting Speaker has in resisting the petition contended that the petitioner had come to the High Court with unclean hands, had filed tampered documents in support of his claim and for that reason alone he was not entitled to the relief which he sought. Further, in view of the subsequent developments i.e., the dissolution of the Assembly there were no substantial rights involved and the petitioner was only interested in the monetary benefits which could be available to him in case he was restored as Speaker. The learned counsel has supported the judgment of the High Court for all the reasons given therein ,in support of the notification issued by the Acting Speaker on 28-11-1992. Nothing more, according to him, had to be done by the Acting Speaker in the matter of inquiry.
Mr. A.G. Mangi, the learned Additional Advocate-General representing the Government of Sindh/respondent No.1 also appeared to support the judgment of the High Court.
7. After hearing the learned counsel for the parties we convert this petition into appeal.
8. The Courts and all statutory authorities and functionaries in Pakistan have an abiding duty to protect and ensure, wherever possible, whenever within their power and jurisdiction, the purity and the efficacy, and to lend strength and vigour to democracy, democratic process and the democratic values. In our country, very unfortunate though it is, mutilation of democracy. Has been taking place at almost every step, at almost every level. It started, very crudely indeed, with the physical obstruction, removal and kidnapping of rivals in order to achieve an uncontested access to representative office. It then went beyond the practice of obtaining long beforehand resignations from all the legal members of a political party as a proof of their implicit faith in their leader. Next came the stage when resignations expressed to be resignations and satisfying visually all the requirements of a resignation came to be utilized for all purposes, except that of operating as resignations. The case of Mian Muhamamd Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 decided by this Court recently is now a part of our political history. Members of the National Assembly were encouraged to submit resignations , which were then utilized for achieving a Constitutionally impermissible end. In ' Sindh Province we witnessed another form of mutilation of democracy of which this appeal is an illustration- --Mass resignations of a section of the Members of the Provincial Assembly followed by their physical disappearance from the political scene for long period. Their appearance on the political scene took place only when they had come over to the Government side, and abandoned their posture of opposition to it. This is fully borne out from what respondent No.2 (The Acting Speaker) and what the appellant (former Speaker) have said in these proceedings. The contesting Deputy Speaker/Acting Speaker (respondent No.2) in his written statement took up the plea as hereunder:--- "1t is a fact that after action was taken in the Province under Article 147 of the Constitution a vast majority of the. M.Q.M. Activists went underground for fear of action by the Law Enforcement Agencies or by the rebel elements of the M.Q.M....In view of the extraordinary circumstances prevailing at the time when the resignations of the M.Q.M. Members were received there was a clear possibility that they could not all be voluntary or genuine. The second respondent had therefore deferred action on the said letters until there was acceptable confirmation of the intention to resign."
The appellant in his Constitution petition stated as hereunder "(3)That, the petitioner, while he was holding the office of Speaker, was forced to leave his place of residence along with the members of his family because of the differences within the party arid was virtually compelled to go in hiding for the sake of his own safety as well as for th safety of his family members.
(4)That, on 28-i1-1992, Mr. Azim Ahmed Tariq, the Chairman of M.Q.M. Through a Press conference announced to come out of hiding and it was in pursuance of that announcement that the petitioner also came out and staged his appearance before the public. Tie staged a come-back in his political life in spite of his ill-health.
(5)That, the petitioner, as soon as he came out of the hiding, challenged his alleged resignation and took a clear stand that he had not resigned his office and further that he was very much the Speaker of Provincial Assembly of Sindh:"
9. The comments reproduced from the written statement of the Acting Speaker clearly show that the inquiry which was anticipated and which was withholding action on the resignations already submitted was with regard to determination whether these resignations were voluntary or genuine.
Just by comparing the signatures and holding it to be of the appellant, it could not be deduced that the resignations were voluntary and genuine in the sense of being intended to be resignations.
Therefore, the inquiry which was required, which was anticipated, which had, in any case to take place under the law never took place at the hands of the Acting Speaker. Anybody receiving the resignation has a duty to ascertain personally whether it is signed by the man resigning, whether it is voluntary and whether it is intended to act as a resignation. Unless all the three requirements of the resignation are satisfied it is dangerous in the political milieu in which we are living to give effect to such resignations. Mere prolonged absence of the person resigning, his non-appearance after notice or his absence from the proceedings even after notice could not prove these requirements. Unless these are positively proved, the resignations cannot be given effect to as resignations. The Rules of Procedure drawn up by the National Assembly in the matter of dealing with resignations are fairly exhaustive and consistent with the law laid down by the Supreme Court of Pakistan in the cases of Mr. A.K. Fazalul Quader Chaudhury PLD 1966 SC 105 and Mirza Tahir Beg PLD 1976 SC 504. The Provincial Assembly Procedure Rules have so far no .Provision on the subject.
10. As regards the technical objections taken with regard to the grant of relief to the appellant on the ground that he had produced in support of his claim certain tampered documents, we do not think that it can stand in the way because these documents play no part whatever view be taken of their legal weight and relevance.
11. The upshot of the above discussion is that the petition is converted into appeal and allowed, the judgment of the High Court is set aside, the notification dated 28-11-1992 is being quashed being without lawful authority and of no legal effect as the inquiry conducted by the Acting Speaker/Deputy Speaker was no inquiry, not according to the requirements of the law laid down by this Court. The appellant continues to be Speaker of the Provincial ~~ Assembly in view of Articles S3(8) and 1217 of the Constitution.