1. Learned counsel for the petitioner states that petitioner was elected as a member of Provincial Assembly of Sindh from Constituency No.PS-66 in the general election held in 1993. He was nominee of the Pakistan Muslim League (N) and defeated the nominee of Pakistan People's Party.
2. He further submits that petitioner is nephew of late Nawabzada Jam Sadiq A.I, the former Chiei Minister of Sindh who was also opponent of the ruling party and therefore Pakistan People's Party had hostile attitude against the petitioner. The petitioner because of hostile attitude and because of bad health was unable to attend certain sessions of the Provincial Assembly but he regularly submitted his applications to the Speaker and Secretary, Sindh Assembly for grant of leave. His application for grant of leave was placed before Assembly on 9-8-1994 and leave was duly granted. Subsequently the petitioner has submitted application for leave for the session which commenced on 2-9-1994 and concluded on 13-10-1994 but this application was not put up before Assembly for its approval. The petitioner also applied for leave for the sessions commencing from 15-12-1994 and ending on 29-12-1994 and this application was placed before Provincial Assembly of Sindh in sitting on 19-12-1994 but this was not approved because of reasons of political rivalry.
3. The learned counsel for the petitioner further submitted that such application had never been rejected in case of any member of the Assembly and in the sitting of the Sindh Assembly on 19-6- 1995 it was brought to the notice of the House that the petitioner had remained absent for 40 consecutive days without leave. One Mr. Lal Bux Bhutto, a member of the Assembly moved a motion that the petitioner had remained absent from the Assembly without leave and his seat be declared vacant. Subsequently a resolution was passed and the Secretary issued a Notification declaring the seat of petitioner vacant and intimated the Election Commission of Pakistan to hold a bye-election. The learned counsel for the petitioner referred to the rules and procedure of the Provincial Assembly of Sindh and stated that rule 55 (2) provided that after the question hour and before transaction of any other business the Secretary shall read out the application to the Assembly and Speaker shall thereafter put the question without debate that leave be granted. He submitted that requirement of law is that member who remains absent for 40 consecutive days of the sitting can be penalised by declaring the seat of such member to be vacant. He first referred to Article 101 of Constitution of India which has similar provision but the word "consecutive" is not used there. Learned counsel for the petitioner referred to paragraph 14 of his petition to point out that the gaps between the sessions being more than 2 days and therefore it cannot be said that the petitioner remained absent for 40 or more consecutive days. He submitted that Provincial Assembly was not competent to reject application for leave for session 15-12-1994 to 29-12-1994. He submitted that according to calculation of petitioner his absence is for 27 days and therefore the decision to declare the seat of petitioner as vacant has been taken with mala fide intention. This decision is discriminatory as no member belonging to the ruling party has ever been refused leave.
4. He relied on decisions, reported in PLD 1989 Quetta page 25 and PLD 1976 SC page 675.
5. The learned A. A.-G. Referred to Article 127 of the Constitution of Islamic Republic of Pakistan to show that the provisions relating to National Assembly are to apply to Provincial Assembly. He referred to Articles 64, 67 and 69 of the Constitution of Islamic Republic of Pakistan according to him Article 64(2) is as under:--- "A House may declare the seat of a member vacant if without leave of the House he remains absent for 40 consecutive days of its sitting".
6. The learned A.A.-G. Submitted that word 'may' used in this Article has the meaning of 'shall' as this is a matter of public policy. He submitted that word' consecutive' has been defined in legal dictionary and it means logical consequence. He submitted as regards the number of days the petitioner remained absent it is a question of fact and even if there is controversy, evidence will be required to settle this controversy. He submitted that provision of Article 64(2) is not a feature of Pakistani Constitution but similar provisions are there in other Constitutions also. He referred to section 93 Schedule of Government of India Act, 1935 which has similar provision. He submitted that in case of absence of member the British Parliament forfeits the wages of the day. Constitution of U.S.A. Has similar provision. He submitted that rule 55(2) of the Rules of Procedure of Provincial Assembly is to be read with Article 64 because it is for the House to say no and the interpretation that leave has to be granted is not correct the option is with the House either to grant leave or to refuse leave. He submitted that the learned counsel for the petitioner has submitted that there is no precedent wherein the seat of member has been declared vacant because of his absence. The learned A.A.-G. Submitted that this argument is not correct and he produced cutting of newspaper dated July 28, 1995 the contents of which are as under:--- "Dukka Bangladesh. Top Judges said on Thursday the seats of opposition members boycotting should be declared vacant because they had been absent from Assembly for 90 consecutive days.
7. The issue as hung over Parliament Speaker Razzaq A.I Sheikh and the Government of Prime Minister Begum Khalida Zia for months, forcing President Abdul Rehman Biswas to refer it to the Supreme Court last June. The Chief said the seats have been vacant for 90 consecutive days and that according to the Constitution they should be declared vacant."
8. He also referred to pages 88, 89 and 93 of the book titled Parliament Functions, Practice and Procedures wherein on the basis of authority it has been observed that the House is judge of its own proceeding and has never entrusted interpretation of its rules or adjudication of dispute to the Court and this means that the content of speeches made inside the House cannot be called in question in the. Courts and the House is responsible for deciding its own procedure. The House is sovereign over its own business. The learned A.A.-G. Further submitted that learned counsel for the petitioner has conceded that according to Article 69 of the Constitution of Islamic Republic of Pakistan that the validity of any proceeding shall not be called in question on the ground of any irregularity of procedure but according to him there was illegality which may justify interference by this Court. He submitted that not a single illegality has been pointed out by the learned counsel for the petitioner and therefore the jurisdiction of this Court is barred and the procedure of Assembly is prescribed by law. He relied on decision reported in AIR 1950 SC page 27 relevant at page 30. He submitted that the petition under Article 199 is not maintainable as it is regulated by Article 175(2) which is as under:--- "No Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law."
9. He submitted that either Constitution or law conferred jurisdiction. He relied on decision reported in PLD 1980 Kar. Page 498 and specially para. 30 of judgment. According to him jurisdiction under Article 199 is subject to Constitution. He submitted that what is done within the walls of the House cannot be questioned as the House itself is the judge. He referred to decision reported in Tewelve Queens Bench Division page 271. He further submitted that seat has become vacant and no outside interference is required. He also relied on decision reported in PLD 1958 SC page 397 and PLD 1967 Lahore page 227 and submitted that the petition may be dismissed.
10. The learned A.A.-G also submitted that not a single instance has been cited which may show that the party in power has hostile attitude against the petitioner and the allegation that the action was mala fide is not correct. There is no malice, as not a single instance of such action has been cited.
11. The learned counsel for the petitioner conceded that the validity of any proceeding cannot be questioned on the ground of irregularity of procedure but according to him there were illegalities.
12. He relied on decision reported in PLD 1989 Quetta page 25 wherein this Article has been discussed and it has been held that the jurisdiction of High Court has been ousted only in respect of irregularity of procedure but as regards interpretation of Constitution, the jurisdiction of High Court is unaffected. The facts of this case are altogether different. In this case the main contention of the learned counsel for the petitioner is that the rule 55(2) of the rules of procedure of the Provincial Assembly of Sindh provides that the Speaker shall put the question without debate that leave be granted and according to this rule there is no option for refusal. The learned A.A.-G submitted that this rule is to be read with Article 64(2) of the Constitution which says that seat of member is to become vacant if without leave of the House he remains absent for 40 consecutive days of its sitting. It therefore shows that the leave of the House is necessary and the House has the option to refuse leave. The learned counsel for the petitioner has also submitted that the petitioner had not remained absent for 40 consecutive days of its sitting as there was break. The learned A.A.-G.
13. Referred to dictionary meaning of the word consecutive. Apart from this the learned counsel for the petitioner has contended that the total absence of petitioner was 27 days. These are points of controversy between the parties but in this case we will touch these points after we are satisfied that we have the jurisdiction. Learned counsel for the petitioner conceded that in case of irregularities this Court cannot intervene but when there is illegality the High Court by virtue of powers under Article 199 of the Constitution can grant relief. The provision of Article 69(1) is as under:--- "The validity of any proceeding in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure."
14. The word used is irregularity of procedure. Black's Law Dictionary defines word "irregular" as under:- -- "Not regular, not according to establish law, method, or usage, not conformable to nature, to rules of moral rectitude or to establish principles, not normal, disorderly."
15. To this extent there is no dispute as even irregularity of procedure cannot be questioned by Courts of Law. Learned counsel for the petitioner insists that there has been illegalities the word 'illegal' has been defined in Black's Law Dictionary as under:--- "Against or not authorised by law".
16. Although it is the argument of the learned counsel for the petitioner that there have been illegalities but he failed to mention any instance where the provision of law had been intervened or violated. The House is authorised to pass a resolution in accordance with the prescribed law to declare the seat as vacant in case there is absence of member for period of 40 consecutive days of sitting of the assembly. The relevant provision of Constitution is as under:--- "64.---(2) The House may declare the seat of a member vacant if without leave of the House he remains absent for 4%.Consecutive days of its sitting."
17. According to rules of procedure and especially in rule 56 of the Rules of Procedure of the Provincial Assembly of Sindh it is mentioned that if a member remained absent without leave of the Assembly for 40 consecutive days of its sitting, the Speaker shall bring the fact to the notice of the Assembly and thereupon any member may move motion that the seat of the member who has been so absent be declared vacant. The rule 56 (2) provides that if the seat of the member is declared vacant the Secretary shall cause the Notification to that effect to be published in the Gazette and the copy of the Notification is to be sent to Chief Election Commissioner for taking steps to fill the vacant seat thus caused. In this case the rules have been strictly followed and the Notification of the Secretary, Provincial Assembly of Sindh dated 19th June, 1995 is as under:--- "No. PAS /Legis-G-21/94.---In pursuance of the provisions of sub-rule (2) of Rule 56 of the Rules of Procedure of the Provincial Assembly of Sindh, it is notified that consequent upon the motion moved by Mr. Lal Bux Bhutto, MPA on 19th June, 1995, under sub---rule (1) of the said rule, the House has declared the seat of Jam Madad A.I, Member, Provincial Assembly of Sindh from Constituency PS-66 Sanghar-III vacant, under Article 64(2) read with Article 127 of the Constitution of Pakistan, 1973. "
18. The questions that have been argued before us are adequately answered in decision reported in PLD 1990 Lahore page 401 it is necessary to reproduce some paragraphs of this judgment. The paragraph 13 of this judgment is as under:--- "I may add that the judiciary or the judicial department though independent but is an equal coordinate branch of the Government and is charged with the duty and power to interpret, construe and apply the Constitution and law but in exercise of this power, the judiciary claims no supremacy over other organs of the Government e.g. The legislature but acts only as an administrator of the public will. See The State v. Zia-ur-Rehman and others PLD 1973 SC 49. The judiciary, as such, while exercising, 'the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. In this respect effect of Article 127 read with Article 69 of the Constitution is to be noticed. Article 69 reads as under:--- "69. Courts not to inquire into proceedings of Mailis a Shoora (Parliament). ---(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 Constitution 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 the exercise by him of those powers.
(3) In this Article Majlis-e-Shoora (Parliament) has the same meaning as in Article 66. "
19. It is because of the presence of these Articles in the Constitution that the superior Courts have refused to scrutinise the internal proceedings and procedure of the Assembly so that the independence and sovereignty of the Legislature in that respect is not infringed and violated or encroached upon in any manner. The Chief Justice Warren of the Supreme Court of United States in the case of Powell v. McCormack, (1969) 23 L Ed 2d 491 observed: "In deciding generally whether a claim is justiciable, a Court must determine whether 'duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted-can be judicially moulded'. Baker v. Carr (1962) 369 US 186 at p. 198: L Ed 2d 663 at p. 674'. Respondents do not seriously contend that the duty asserted and its alleged breach cannot be judicially determined. If petitioners are correct, the House had a duty to seat Powell once it determined, he met the standing requirements set forth in the Constitution. It is undisputed that he met those requirements and that he was nevertheless excluded."
20. We are in complete agreement with the decision of their Lordships that the judiciary while exercising the powers under Article 199 has to avoid encroachment on the Constitutional preserves of other functionaries of the State. The Assembly is a sovereign body and it acts in accordance with the prescribed rules. Even if there is irregularity the Constitution does not authorise the Court to question the irregularities of Assembly. In this case there is no such event which may justify this Court to intervene. Thus we arrive at the conclusion that the procedural irregularities if any in the proceeding of the Assembly cannot be scrutinised by this Court in exercise of Constitutional jurisdiction.