NASIR ASLAM ZAHID, CJ. - The petitioner was elected as a member of Provincial Assembly of Sindh from Constituency No. PS-82 Karachi (C) V, in the elections held in October, 1990. The petitioner belongs to Muhajir Quomi Movement. According to the petitioner, a meeting of MPAs of MQM was held in February, 1991, and it was proposed in that meeting that the MPAs express their allegiance to and complete confidence in the leadership of the MQM and it was suggested that as a token of expression of allegiance and confidence in the leadership, all the MPAs should handover undated letters of resignation to respondent No. 4, Altaf Hussain, who represented the MQM leadership.
According to the petitioner, certain members including the petitioner expressed their reservation as to the propriety of such action but they were assured by respondent No. 4 that the letters were not designed to or meant tp be conveyed to the concerned authorities but were only a form of expressing confidence in the leadership of respondent No. 4. According to the petitioner, he was reluctant to sign the resignation letter but was coerced to sign such an undated letter of resignation and to hand it over to respondent No. 4, "as he could not escape from signing the resignation as his personal safety was endangered". The petitioner also avers that he had developed differences with central leadership of MQM over certain policy matters and stopped participating in the activities of MQM. According to the petitioner, while respondent No. 4 appreciated the principle stand of petitioner on certain issues, it was suggested that the stand was likely to be mis-interpreted and the petitioner was forced alongwith his supporters to leave the country for some time and return after things were sorted-out in the party. Accordingly, the petitioner left for USA on 25-2-1991 and returned in the beginning of 1992. However, apprehending foul play at the hands of respondent No. 4 and as a matter of abundant caution, the petitioner informed the Speaker and the Governor of Sindh by his letter dated 25-2-1991 that his so-called resignation from the membership of the Provincial Assembly of Sindh was obtained under duress and, therefore, the same may be considered as null and void and he could not escape from signing the resignation as his refusal would have exposed his life into danger. The petitioner then avers that on return in January, 1992, to Pakistan, he was being shadowed and hounded by the opposite group (of MQM) in order to kill him and, therefore, he kept on hiding himself but- after the death of late Chief Minister Sindh, Mr. Jam Sadiq Ali, the political tension eased and only then he succeeded in obtaining copy of the Notification dated 28-2-1991, published in the Sindh Government Gazette, showing that the petitioner's resignation from Provincial Assembly's membership had been given effect from 27-2-1991 and his scat had become vacant. Petitioner then filed the present Constitutional Petition on 19-3-1992. In the meantime, respondent No. 3, Syed Hashim Ali Raza, was elected against the seat which became vacant pursuant to the aforesaid notification. Bye-elections were held on 22-4-1991, and, as observed, the respondent No. 3 was elected to the said constituency as a member of the Sindh Assembly.
2. The petitioner has prayed in the petition that he had not voluntarily resigned from the membership of the Sindh Assembly and has sought declaration that the Notification dated 27-2- 1991 of the Speaker is illegal and the elections of respondent No. 3 is also void.
2. The petition has only been contested by respondent No. 3, on whose behalf Mr. Mansoor Ahmed Khan appeared. We heard the arguments of learned counsel for the petitioner and also of respondent No. 3 at length. Though, Mr. K.M. Nadeem, Assistant Advocate-General, appeared on behalf of the Advocate- General, Sindh, pursuant to notice, he did not address any arguments and stated that the matter may be decided on the basis of submissions made by learned counsel for the petitioner and the respondent No. 3.
3. The original record relating to the resignation had been summoned and Mr. Zakir Hussain Mirza, Secretary of the Sindh Assembly presented the file. The file contains a letter dated 25-2-1991 of the petitioner addressed to the Speaker and it reads as follows:- To, .
The Speaker Sindh Assembly.
Sub:- Withdrawal of resignation obtained under duress on 20-2-91.
My resignation from the membership of Provincial Assembly of Sindh was obtained under duress, and I was in no position to resist as it my personal safety would had been endangered my resignation obtained under duress therefor by consider null and void as against my wishes. I would continue to performance my duty as member assembly of Sindh as wishes in people of my constituency.
Sd/- 25-2-91"
The aforesaid letter was received by the Speaker, Abdul Razaque Khan, on 26-2- 1991, on which he made the following endorsement:- "There is nothing on the record to show that any resignation dated 20- 2-91 has been received, and therefore no further action." The letter was marked to the Secretary, whose signature also appeared on the said letter.
Second document in the file produced by the Secretary is a letter of resignation in Urdu and it reads as follows:- {{Urdu text missed}} On the top of the letter the date 20-2-91 is mentioned.
There is the following endorsement on the said letter of resignation by the Speaker:- "Received on 27/2/91 at .3 P.M. Please issue notification of resignation. - Sd/- 27-2-91 PS" On the same date, that is, 27-2-1991, the Speaker issued the notification, which reads as follows: "NOTIFICATION Karachi the 27th February, 1991 No. PAS/PS-SPK/91-Mr. Badar Iqbal, elected Member, Provincial Assembly of Sindh from constituency P.S. 82 Karachi (C) -V resigned from the membership of the Provincial Assembly of Sindh from the said seat with effect from 27th February, 1991 (afternoon.) and his seat has become vacant under Article 64 read with Article 127 of the Constitution of the Islamic Republic of Pakistan.
' Sd/- ABDUL RAZIQUE KHAN SPEAKER PROVINCIAL ASSEMBLY OF SINDH Karachi Dated 27th February, 1991." -
4. The letter dated 25-2-1991 of the petitioner, addressed to the Speaker about withdrawal of his resignation is not denied by any of the respondents. Even, Mr. Mansoor Ahmed Khan, learned counsel for respondent No. 3, has not denied the said letter.
There is no allegation from any quarter that the said letter dated 25-2-1991 had not been sent by petitioner, Badar Iqbal, to the Speaker of the Sindh Assembly. There is also no challenge to the endorsement made by Speaker Abdul Razique Khan on 26-2-1991 as noted above.
5. The admitted position, therefore, is that before the letter of resignation is received by the Speaker on 27-2-1991, he receives a letter dated 25- 2-1991 on 26-2-1991 that the letter of resignation had been obtained under duress and that he was in no position to resist signing the resignation letter as his personal safety would then have been endangered and that the resignation letter may be considered as null and void and that he would continue to perform his duties as a member of the Sindh Assembly. In the circumstances, before the resignation letter had reached the Speaker, it had been withdrawn by its maker, petitioner Badar Iqbal. When the Speaker received the resignation letter on 27-2- 1991, he was aware that, a day earlier, letter dated 25-2-1991 of the petitioner had been received by him, in which he had withdrawn the said letter of resignation having been obtained under duress.1 The resignation letter had been intercepted by the maker himself by writing the said letter before the resignation letter had reached the Speaker and as such, in our view, said letter of resignation could not be effective, as it had been withdrawn. Arguments were advanced at some length by the learned counsel on the question of duress had coercion but, in our view, the said arguments were not relevant and mis-conceived as the writer of resignation letter can withdraw his resignation before it reaches the Speaker. Resignation can only be given effect to, if it reaches the Speaker, the competent authority, under Article 64 read with Article 127 of the Constitution in so far as Provincial Assemblies are concerned and, if before such resignation letter reaches the Speaker, the competent authority, it is withdrawn by the maker and the withdrawal is communicated to the Speaker before the resignation letter reaches the Speaker, the said resignation, even if given voluntarily, becomes ineffective and orders cannot be passed by the Speaker in such a situation given effect to the resignation and declaring the seat of the member vacant.
6. In our view, therefore, in these admitted facts, the Speaker did not act legally in giving effect to the resignation, dated 25-2-1991 of the petitioner.
7. The only point that requires consideration in this petition is of laches and whether the discretionary power of this Court under Article 199 of the Constitution should be exercised in declaring the Notification dated 27-2-1991 of the Speaker as illegal and also declaring the election of respondent No. 3 in the bye-election as invalid.
8. The main contention of Mr. Mansoor Ahmed Khan, learned counsel for respondent No. 3, Syed Hashim Ali Raza, was that the Notification issued by the Speaker declaring the seat of the petitioner vacant is dated 27-2-1991 and thereafter the bye-election was held on 24-4-1991, in which respondent No. 3 was elected, whereas, this petition was filed in March, 1992, after 13 months of the Notification, and, as such, the petition is liable to be rejected on the ground of laches, and, in any case, the constitutional jurisdiction under Article 199 being discretionary, present is not a cage where this Court would exercise its constitutional jurisdiction in granting relief to the petitioner.
According to the learned counsel for respondent No. 3, even if the action of the Speaker in giving effect to the resignation was illegal, on account of delay of 13 months in coming to Court, no relief should be granted to the petitioner. It was also argued that the petitioner is estopped from challenging the election of the respondent No. 3 in the bye-election held in April, 1991. According to Mr. Mansoor Ahmed Khan, during the period of 13 months, new rights have been created in favour of respondent No. 3, who was not only elected on the seat vacated by the acceptance of resignation of the petitioner but he has been discharging his responsibilities as a Member of the Sindh Provincial Assembly since April, 1991. It was further submitted that respondent No. 3 is an innocent party and is not in any way involved in the action taken by the Speaker and, if at all, the Speaker had passed a wrong order in February, 1991, respondent No. 3 is not to suffer. According to learned counsel, respondent No. 3 could not restrain the Speaker from passing the impugned order or challenge the same, but the petitioner should have taken action immediately to assert his right by challenging the impugned order.
9. In support of his submissions, Mr. Mansoor Ahmed Khan has referred to the following judgments:
(i) Khan Gul V. District Judge, Allock (PLD 1990 Lahore 263) In this judgment, the Lahore High Court held that the principle that Court should lean in favour of adjudication on causes of merits, is available for invocation only when the person relying on it himself comes to the Court with clean hands and equitable considerations also lie in his favour.
(ii) Aftab Ahmed Khan Sherpao V. Governor NWFP (PLD 1990 Peshawar 192) ' in this Full Bench judgment of the Peshawar High Court, it was held that the grant of relief under Article 199 is the discretion of the High Court, which is not bound by any precedent and each case entails its own objective conditions and the relief is granted or refused on the basis of such conditions.
(iii)Jalaluddin Vs. Settlement Commissioner (1968 SCMH 995).
In this judgment, the Supreme Court held that a delay of nearly two years in moving the High Court, on the facts of the case, tantamount to waiver or acquiesence.
(iv)The Chairman, District Screening Committee Lahore & another Vs. Sharif Ahmed Hashmi (PLD 1976 S.C. 258)
In this case, an order of compulsory retirement made by an authority inherently competent to make it but following a wrong procedure was held to be merely voidable and not void and could be avoided by the aggrieved official by appropriate proceedings and as the official had not resorted to such proceedings for a period of about l2 years, the writ petition of the official was held to suffer from inordinate delay and gross laches.
(v) Settlement Authority Vs. Akhtar Sultana (PLD 1976 S.C. 410)
In this case, the petitioner had not challenged the authority of an auction when the auction was held but participated in the auction. Writ petition filed after six months was held to be hit by the doctrine of laches.
Nasim Begum Vs. Settlement & Rehabilitation Commissioner (1982 SC MR 913). In this Judgment, it was held that the accepted principles for applying the bar of laches are acquiesence on the plaintiffs part and any change of position that has occurred on the defendant's part.
Mohammad Sharif Vs. Federation of Pakistan (PLD 1988 Lahore 725).
In this Judgment of the Full Bench of the Lahore High Court dealing with the orders of the President dissolving the National Assembly and that of the Governor of the Punjab dissolving the Provincial Assembly of Punjab, the said orders were held to be not sustainable under the Constitution but, in the circumstances of that case, where the process had been set in motion for fresh general elections, relief for restoration/reinstatement of dissolved Assemblies was not granted.
10. In our view, the present petition is not liable to be dismissed on the ground of laches. We are also of the view that, in the circumstances of this case, the petitioner is entitled to relief and the discretionary remedy under the constitutional jurisdiction is not to be withheld from the petitioner.
In this case, we have already held that the impugned order is patently illegal. The petitioner has averred in his petition that, on account of differences with the party leadership he was forced to leave the country and he had to remain out for about 11 months and, when he returned in January, 1992, he. Was being shadowed and hounded by the opposite group of the parly in order to kill him and, therefore, he kept on hiding himself and after the death of late Chief Minister of Sindh, Mr. Jam Sadiq Ali, the political tension eased and only then he was able to obtain a copy of the notification dated 28-2-91 and, therefor, filed this petition. Just before leaving Pakistan, petitioner had sent a letter to the Speaker that his resignation had been obtained under duress and it should be treated as null and void. As observed, this letter had been received by the Speaker on 26-2-1991, whereas, he received the resignation letter of the petitioner a day later on 27-2-1991, but, despite this, the Speaker ignored the letter of the petitioner and, immediately on receipt of the resignation letter, issued the Notification about seat of the petitioner becoming vacant.
According to Mr. Mansoor Ahmed Khan, the petitioner having differences with the party leadership took an honourable step of leaving the country and remained outside to avoid any friction between the party. It is difficult to accept the submission of Mr. Mansoor Ahmed Khan that any member of the Assembly, on account of differences with the party leadership, would go out of the country and remain abroad for a period of eleven months, voluntarily. The version of the petitioner has to be accepted that he was forced to leave the country and he could not come back for a period of eleven months and this entire period abroad was in the nature of deportation from the country on account of differences with the party leadership. As observed, he has also given an explanation for about two months' delay in filing the petition after his return from abroad in January, 1992. In the circumstances, we are not inclined to accept the contention of Mr. Mansoor Ahmed Khan that this petition is liable to be dismissed on the ground of laches.
11. Reference may be made hereto the decision of the Supreme Court in the case of Pakistan Post Office Vs. Settlement Commissioner (1987 SCMR 1119), in which it was pointed-out that there is considerable case law on the question of laches ranging from dismissal of a writ petition on the ground of delay of two months to condonation of laches for over a decade and that no hard and fast rules have been laid down in^this behalf. It is also pointed-out that there is no law of limitation which may directly apply to the institution of writ petitions and their dismissal on the ground of limitation. It was observed that there is absolutely no justification to equate laches with statutory bar of limitation. According to the Supreme Court, laches operates as a bar in equity, whereas, the law of limitation operates as a legal bar to the grant of remedy and, therefore, in the case of laches, the dictates of justice and equity and balance of legitimate rights are to be weighed, and not limitation, subject to statutory relaxations, where nothing is left to the discretion of the Court. It was further held that the bar of laches under equitable jurisdiction has been equated with principle of estoppel and not the statutory bar of limitation. It was further held that when an order was void and also unjust and improper besides being illegal, the High Court would have no hesitation in setting aside the same despite the objection regarding laches because the High Court then would be acting on a still higher principle than that of laches, i. e., injustice is not perpetuated with the blessings of Court in its discretionary jurisdiction as the discretion to dismiss a constitutional jurisdiction could not be exercised in aid of injustice.
12. In the present case, Speaker acted in excess of his jurisdiction by issuing a notification the moment he received the letter of resignation on 27-2- 1991 when he had before him a letter from the petitioner received by the Speaker a day earlier that the said resignation had been obtained under duress and should be treated as null and void. The petitioner is then forced to leave the country and he spends eleven months outside going from one country to another (as evident from his passport) and was only able to return in January, 1992, and thereafter also for about two months he could not file the petition on account of the reasons mentioned earlier. In these circumstances, it would be unjust to refuse relief to the petitioner on the ground that he has come to the Court after thirteen months of the impugned order.
13. On the question of discretionary jurisdiction also, as observed, we are of the view that the petitioner should not be denied relief in this petition. We have already held that it would be unjust to deny relief to the petitioner in the facts of this case an4 therefore, finding the impugned order to be illegal, we are not withholding the relief under the constitutional jurisdiction.
14. Mr. Mansoor Ahmed Khan had laid great emphasis on the point that the respondent No. 3 is also an innocent party and why should be suffer when he had been elected in the bye-election held in April, 1991, and the petitioner should have approached the Court earlier in order to stay the bye- elections. In this case, petitioner as well as respondent No. 3 may be termed as innocent parties.
The petitioner has explained the reasons for not approaching the Court earlier and we find the reasons to be valid and as such, despite the respondent No. 3 being an innocent party, relief to the petitioner is not being withheld. In the case of Mina Tahir Baig (PLD 1976 SC 504) also the bye- elections had been held and the Supreme Court, finding the notification giving effect to the resignation of Mriza Tahir Baig to be illegal, set aside the resulting election of Mian Mohammad Riaz in the bye-elections.
5. The only question which now requires consideration is whether the matter should be sent back to the Speaker for inquiry regarding the validity of the resignation. In our view, it is not necessary to send the matter back to the Speaker for fresh enquiry, as, in the"present case, it is not necessary to hold an enquiry regarding the voluntary nature of the resignation of the petitioner for the reason that before the resignation had reached the Speaker it had already been intercepted a day earlier by the petitioner himself by writing a letter, that the said resignation letter be treated as null and void. As noticed, the fact that the said letter Was written by the petitioner and was received by the Speaker on 26-2-1992 is riot denied. ^ , , I6. As a result, this petition is allowed by holding that the Notification dated 27-2-1991 of the Speaker declaring that the petitioner had resigned from Membership of the Provincial Assembly of Sindh with effect from 27-2-1991 and that his seat had become vacant under Article 64 read with Article 127 of the Constitution has been passed without lawful authority and is of no legal effect. As a consequence, election of respondent No. 3 to the said seat in question in the bye-election is also held to be without lawfull authority and of no legal effect. : There will be no orders as to costs. -