1. ' WAJIHUDDIN AHMED, C.J.--The petitioner is a member of the Pakistan People's Party and was elected to the Senate of Pakistan on one of the general seats from the Province of Sindh, the election having been held on 12-3-1997 and notified on 17-3-1997. The petitioner, as to his credentials as a politician of some significance, states that he has also been a member of the National Assembly of Pakistan and a Federal Minister. Being the husband of the former Prime Minister and present Leader of the Opposition, Ms. Benazir Bhutto, it is claimed that the petitioner, who is interned and facing trials before the District and Sessions Judge, Karachi (South) and Special Judge (Anti-Corruption), Central II, is being mala fide denied the oath of office as Senator.
2. On our query, it was revealed that the petitioner did not apply for bails in the two cases pending against him, one commonly known as the container case and the other the Murtaza Bhutto murder case. However, the petitioner has been seeking from the Chairman Senate under rule 72-A of the Rules of Procedure and Conduct of Business in the Senate, 1988, to summon him for being administered the requisite oath of office. Correspondingly, the petitioner also applied to the two Courts, where he is facing trials, to grant him permissions for attending the Senate of Pakistan in order that he may be administered the referred oath. The Special Judge (Central) II, Karachi, the office held by Mr. Muhammad Afzal Khan, per order dated 8-4-1997, observed that it was "entirely for the Chairman Senate to decide as to whether it is imperative to call him at Islamabad for the said purpose specially when he has made such request also", whereas Mr. Akbar M. Memon, Sessions Judge, Karachi (South), vide order dated 10-4-1997, concluded that there was no harm if the petitioner was "summoned by the Chairman for the purpose and accordingly this Court has no objection if the accused is summoned provided the trial of this case is not disturbed". In so far, as the Chairman of the Senate is concerned, he, upon hearing, recorded a ruling on 13-8-1997 to the effect that the petitioner not having been administered oath of office as Senator was not a member of the Senate and could not, within the terms of rule 72-A aforesaid, be summoned to the House. Such finding and the implicit ingredients are questioned through this petition. It is urged on the factual plane that at no time whatsoever any person elected to an assembly or to the Senate of Pakistan has been denied his right to take oath as a member of such Assembly or as Senator and instances of the petitioner himself, Mir Murtaza Bhutto, Ch. Shujaat Hussain, Masroor Ahsan and Azam Tariq etc. Are cited as precedents, claiming in the same breath that it was mala fides and mala fides alone which have operated to prevent the petitioner from exercising his rightful functions as a Member of Parliament.
3. ' In the first place, an objection is taken that a petition of this kind is not maintainable inasmuch as proceedings of Parliament or a House thereof cannot be called in question in any Court. Reliance is placed on Article 69 of the Constitution, which runs thus:- "69.--(1) The validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedde.
(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."
4. ' A similar argument pertaining to the corresponding provision in Article 111 of the then Constitution of 1962 came up for examination before the Supreme Court in Farzand Ali v. Province of West Pakistan PLD 1970 SC 98, where in relation to the concept of internal proceedings of an assembly, Hamoodur Rehman, C.J., observed that whatever was not "related to any "formal transaction of business" in the House cannot be said to be a part of its internal proceedings". The question, however, in this petition, though akin and allied to that decided in Farzand Ali's case, is slightly different. Here, in relation to clause (2) of Article 69 it is argued by the learned Advocate-General, Sindh, and the learned Deputy Attorney General that because pursuant to such clause the Chairman Senate is one such officer, as is in contemplation, he is not subject to the jurisdiction of any Court in respect of exercise of powers by him. The argument, however, overlooks that it is not each and every act of such officer or member, as is embraced by Article 69(2), inclusive of the Chairman, that is protected. It is only an exercise of power, which has a nexus with regulating of procedure or the conduct of business or maintaining of order in the Parliament which is, thus, made immune, though subject to time honoured constraints. In other words, the concept of internal proceedings also comes into play while construing the extent or expanse of such powers and that, necessarily is circumscribed by "formal transaction of business" concomitant to such internal proceedings. Besides, it is often overlooked that the protection in clause (1) of Article '0 to which clause (2) also is subject, protects only "any irregularity of procedure" and obviously not a patent illegality. Summoning a member to a session of a House of Parliament does not appear to us to be a matter, which pertains to the regulation of procedure or conduct of business or maintenance of order in a House of Parliament and is, therefore, speaking strictly, beyond the ambit of immunity, such immunity itself being subject to similar implications as in Article 248 of the Constitution. Even so Courts, and in particular the Superior Courts, where such matters are usually agitated, should be careful in interfering with matters, which squarely fall within the ambit of powers, exercised or exercisable in relation to internal affairs of a House of Parliament or other Legislative Authorities in contemplation of Articles 69 and 127 of the Constitution. This arises directly from the doctrine of trichotomy of powers and consequential separation thereof, the latter so well defined in the Constitution of Pakistan.
5. ' Having found that the bar of Article 69 does not apply to the order of the Chairman, we would now 'proceed to examine such order. The Chairman says that because the petitioner is not a member of the Senate of Pakistan, not having taken oath as such member, the Chairman is unable to summon him in terms of rule 72-A aforesaid. Rule 72-A is this:- "72-A, Production of a member in custody for a sitting of the Senate or meeting of a Committee--
(1) The Chairman or Chairman of a Committee may summon a member in custody on the charge of any offence or under any law relating to preventive detention to attend a sitting or sittings of the Senate or meeting of Committee of which he is a member if he considers his presence necessary.
(2) On a Production Order, signed by the Secretary or by any other officer authorised by the Chairman in this behalf, addressed to the Federal Government or, as the case may be, the Provincial Government where the member is held in custody, or to the authority having or holding custody of the member, the Federal Government or the Provincial Government or such other authority shall cause the member in custody to be produced before the Sergeant-at-Arms who shall, after the conclusion of the sitting or the meeting, deliver the member into the custody of the Federal Government or the Provincial Government or other authority, as the case may be."
6. ' The cited rule was inserted in the rules on 10-5-1994. Such was in line with rule 90 in the Rules of Procedure of the National Assembly of Pakistan which itself had been inserted in those rules some two years prior to rule 72-A ibid. Rule 90 is reproduced beloW:-- "90.--Production of a member in custody for a sitting of the Assembly or meeting of a Committee.- -(1) The Speaker or Chairman of a Committee may summon a member in custody on the charge of a non-bailable offence to attend a sitting or sittings of the Assembly or meeting of a Committee of which .He is a member; if he considers his presence necessary.
(2) On a Production Order, signed by the Secretary-General or by any other officer authorised in this behalf, addressed to the Government of the Province where the member is held in custody, or to the authority concerned, the Provincial Government or such authority shall cause the member in custody to be produced before the Sergeant-at-Arms, who shall, after the conclusion of the sitting or the meeting, deliver the member into the custody of the Provincial Government or other authority concerned."
7. ' Rule 90 had a background and that had a nexus with the petitioner himself, who was elected to the National Assembly of Pakistan from NA-189, Liyari, Karachi. Much the same way as now, being then interned for a non-bailable offence, he could not be administered oath as an M.N.A. However, according to the Advocate-General, he applied to the Special Court, then presided over by late Justice (Retd.) Fakhruddin H. Shaikh, where the application was not opposed, permission was granted and arrangements were made, leading to the petitioner being taken to the National Assembly and administered oath of office there. Difficulties then yet arose regarding the petitioner's continued attendance in the proceedings of the House. He preferred a Constitutional petition in this Court, which came up before a Full Bench comprising of three Judges and the decision is reported as Asif Ali Zardari v. Special Judge PLD 1992 Kar.
430. The learned Judges of the Court denied relief in the petition on the ground that neither Articles 65 and 66 of the Constitution nor section 135-A of the Code of Civil Procedure conferred any privilege on a member if in custody in a pending criminal trial, to attend sessions of a House of Parliament. However, an observation was made in the report that there was nothing in law to prohibit the Provincial Government from making arrangements for the petitioner, who was an undertrial prisoner, to attend the session of the National Assembly. As a sequence, on 5-8-1992, rule 90 was incorporated in the Rules of Procedure of the National Assembly of Pakistan, as reproduced above, which, as seen, . Was followed by the insertion of rule 72-A in the Rules of Procedure and Conduct of Business in the Senate, 1988 and that came about on 10-5-1994.
8. ' An interesting development, relevant to rule 72-A, followed regarding the matter of then Senator Chaudhry Shujaat Hussain, who, facing a criminal trial, was required to be produced by the Senate Chairman. The People's Party Government expressed its inability to produce him, saying that he was in custody of the Court and that it was beyond the scope of its powers to bypass the jurisdiction of the Court and 'comply with the ruling of the Chairman. The Chairman examined the issue and recorded the reasons for his order relative to the session, commencing 17-11-1994, on 22- 2-1995. Applicable observations are reproduced below:- "... ... I asked the Law Minister as to which Court would be deemed to have custody if let us say 20 cases were pending against them before different Magistrates. Could it be said that in any such situation the custody stood divided between different Courts? The Law Minister could not give a satisfactory answer to this question.
12. I also asked the Law Minister that if his arguments were to be accepted, how would he explain the fact that even a Police Officer has been given the power to grant bail under section 497(ii), Cr.P.C. Under section 167, Cr.P.C., the Magistrate has been empowered to remand the accused to such custody as he may deem fit. Does it not mean that the Court controls the custody of an accused person but the physical custody is handed over to whichever authority the Court may deem fit in the circumstances of the case?
13. The Law Minister relied on the case of Mr. Asif Ali Zardari, PLD 1992 Karachi page 430 in support of his arguments."
9. ' Commenting on the referred Full Bench case of this Court, the Chairman recorded:-- "18. The High Court, therefore, was quite clear that even in the situation which existed prior to the incorporation of rule 90 in the Rules of Procedure of National Assembly although a member did not have the privilege to attend a session of the National Assembly, nevertheless there was no law which barred the Government from producing him before the Assembly if it proposed to do so. In these circumstances Rule 90 of the Rules of Procedure of the National Assembly and Rule 72-A of the Rules of Procedure of the Senate acquire meaning and substance. The Chairman and the Speaker have the power under the rules to direct the Government to produce an undertrial prisoner before the House to attend its sessions. The High Court has made it clear that there is no law which prohibits the Government from doing so. As pointed out by Senator Aftab Ahmed Sheikh and Senator Anwar Bhinder, Rule 31 of the Rules of Business of the Federal Government place an obligation on the Federal Government to comply with the Rules of Procedure and standing orders of the Assembly, the Senate or the Joint Sitting. Accordingly, the Government is bound under the Constitution and the law to carry into effect and implement directions of the Chairman and the Speaker issued under the rules framed by the respective houses..
19. The Law Minister argued that the power exercised by the Chairman is in conflict with the jurisdiction conferred on Courts of law as the custody of an accused person is with a Court of law, After going through the provisions of the Criminal Procedure Code it appears that the power conferred on the Chairman or the Speaker does not in any way come into conflict with the power of Courts of law. This House has always had the highest respect for the judiciary. This respect is reflected in the Rules of Procedure of the House, For example, as a general principal discussion on matters which are sub judice before Courts is avoided in the House. Rule 200(3)(c) stipulates that a member while speaking shall not discuss the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties. Various organs of the State are to operate independently under the provisions of a written Constitution. Whereas one organ of State may be given powers to check the illegal acts of another organ of State, interference in the normal functioning of each is avoided by the other. Each one is allotted its own sphere of jurisdiction. Under the Rules of Procedure of the House and specially after the incorporation of rule 72-A. It becomes necessary to brine the members together to complete the House after it has been summoned by the President under Article 54(1), The same is the position if the Chairman Senate summons the House on rettuisition slimed by at least one-fourth of the total membership under Article 54(3) of the Constitution, The Chairman Senate has not been given power to release a member from custody nor is there any intention to do so. When a member is summoned to attend a session of the Senate in pursuance of rule 72-A, he comes in custody, remains in custody and is delivered back into the custody from which the member was received, after the sitting of the House is concluded. At best, it can be said that the case is one of temporary transfer of custody from one authority to another, to comply with the direction given by the Chairman under a Rule made by the Senate pursuant to the Constitutional power to make rules vested by Article 67 of the Constitution. It may be emphasized that exercise of power under Rule 72-A enables the Senate to discharge its role as an integral part of Pakistan's Legislature by ensuring members in custody to attend sittings of the Senate, a Constitutional function. By complying with the direction under Rule 72-A, the Government did not impinge upon any judicial power or effect the Courts' control on custody of an accused," (Emphasis supplied).
10. ' Adding the following the Chairman concluded:-- ................Even before Rule 72-A was incorporated, there was nothing to prevent a member from moving an application before an appropriate Court and get permission from the Court. There are examples where this practice has been followed in the past. The rule made a change. It was intended to facilitate the members to perform their duties without going through the procedures of getting permission from the Court. The rule was also intended to assert the sovereignty and independence of Parliament: "26. In a parliamentary form of Government, the Government derives its validity and authority from the Parliament and more specifically from the National Assembly. At all times the Government must submit to Parliament. The Government is answerable and accountable to Parliament. Under our Constitution sovereignty over the entire universe belongs to Almighty Allah. This sovereignty is to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Allah. Therefore, for all practical purposes. Parliament is the sovereign authority subject to ultimate sovereignty of Almighty Allah. It would not be proper or Constitutional to defy the authority of Parliament. Such actions undermine the sovereignty of Parliament and the Rule of law. The Federal Government may have had some doubts about the validity and import of Rule 72- A. The Chairman and in the case of National Assembly, the Speaker, have the ultimate responsibility to interpret the Rules and their interpretation is binding and final. The Presiding Officers are not subject to the jurisdiction of any Court in the exercise of these powers (Article 69(2)). I do hope that after this detailed judgment, the Federal Government would have no hesitation in complying with my orders passed validly under the Constitution and the Rules of Procedure of the House. All doubts should now stand removed. In my opinion, the Federal Government has a duty under Rule 72-A to produce an accused person before the House in compliance with the orders of the Chairman. I had passed a short order in this case on, 26-1-1994.
11. This Ruling gives the detailed reasons. The short order should also be read as part of this ruling."
12. ' We have little cavil with the reproduced conclusions of the Chairman. However, we would like to draw upon the observations of the Supreme Court of Pakistan pertaining to the enforceability and indeed vires of sections 3 and 4 of the Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance, 1963, on the touchstone of repugnancy or otherwise to the Injunctions of Islam. Thus in Federation of Pakistan v. Public-at-Large PLD 1991 SC 459, the apex Court concluded that the privilege conferred by those sections on the members of the National Assembly negated the concept of equality of citizens before law and, therefore, it was imperative to bring the same to conform to the Injunctions of Islam. The judgment of the Federal Shariat Court in appeal was upheld and a directive was issued for carrying out the necessary amendments by 30-6-1991, failing which the said provisions were postulated to cease to have effect. The applicable observation highlighting the practice in Courts is as follows:-- "We do not find 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 busy 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, from making it almost impossible to obtain justice against him, if he is arrayed as a party before 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 Session 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." (Underlining added).
14. In this background, it is manifest that pursuant to a directive being issued under Rule 72-A or for the matter of that Rule 90, to the extent the proceedings against an undertrial prisoner are known, the prisoner himself or even the concerned Government may move for the prisoner to be taken to the relevant House of Parliament and, unless good reasons subsist, the relevant Court of law, where the proceedings are taking place and in whose custody the prisoner for the time being happens to be, would not withhold the requisite permission. If more Courts than one are involved and applying to all of them for the requisite permission is cumbersome and has the potential to defeat rules 72- A and 90, as apprehended by the Chairman, such a permission may be sought from the High Court or the High Courts concerned. In all such cases where a requisition issues under either of such rules, the Government agency cannot oppose such a request from the side of the prisoner and in appropriate cases may even itself be obliged to apply for the necessary permission. This is how all the organs of the State, namely, the Legislature, the Executive and the Judiciary can pursue their activities with a view to compliment one another rather than one pulling in one direction and the other in quite another. This we say with necessary. Reservations, because none has questioned the vires of rules 72-A and 90 before us and these rules, being conceded to be peculiar to the Pakistan Parliament, can obviously invite challenge, though when and how belong to the domain of pure speculation.
15. ' Here, it may also be pointed out that where the said Rules of Procedure apply the power to summon an undertrial prisoner shall always remain a discretionary power of the Authority (Chairman, Speaker and the like) in which it vests. Next, it is only when "necessary" that such a power can come to be exercised. Lastly, but no less importantly, in exercising such powers the relevant functionary would, all the time, ensure that in virtue of such an exercise the proceedings in the relevant Court of law are not unnecessarily delayed, let alone thwarted. These then are the parameters within which the powers under the referred rules 72-A and 90 are to be exercised.
16. ' We may also note here that, as canvassed before us, there are no regulations corresponding to rules 72-A and 90 at the level of Provincial Legislatures. There the pre-existing principles of law would continue to apply, as held in Asif Ali Zardari v. Special Judge PLD 1992 Karachi 430.
17. ' Reverting, upon invocation of Articles 64 and 65, it has been argued that the words "a person elected to a House" in Article 65 are the equivalent of a member and Rules 72-A and 90 furnish sufficient warrant for him to be taken to the concerned House and administered oath. Articles 64 and 65 in the Constitution of 1973 are these:-- "64.--(1) A member of Majlis-e-Shoora (Parliament) may, by writing under his hand addressed to the Speaker or, as the case may be, the Chairman resign his seat, and thereupon his seat shall become vacant.
(2) A House may declare that seat of a member vacant if, without leave to the House, he remains absent for forty consecutive days of its sittings.
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." (Underlining added).
18. ' Prior to these Constitutional dispensations corresponding provisions in the 1956 and 1962 Constitutions were Articles 47 and 48 and Articles 106 and 107 respectively, which are also reproduced hereunder:-- ' 1956 CONSTITUTION "47. If a member of the National Assembly is absent from the Assembly, without leave of the Assembly, for sixty consecutive sitting days, his seat shall become vacant.
19. 48.If a member of the National Assembly fails to make and subscribe an oath or affirmation in accordance with the provisions of the Constitution .Within period of six months from the date of the first meeting of the Assembly after his election, his seat shall become vacant: ' Provided that the Speaker may, before the expiration of the said period for good cause shown, extend the period." (Underlining added).
20. ' 1962 CONSTITUTION "106.-40 A person elected as a member of an Assembly shall not take his seat in the Assembly until he makes before such person as is prescribed by Rules of the Assembly an oath in such form set out in the First Schedule as is applicable to a member of the Assembly.
(2) The oath may be made at any time, whether or not the Assembly is in session."
107. The seat of a member of an Assembly shall become vacant if--
(a) he resigns his seat by notice in writing under his hand addressed to the Speaker of the Assembly;
(b) he is absent from the Assembly without the leave to the Assembly for thirty consecutive sitting days of the Assembly;
(c) he fails to make the oath referred to in Article 106 within a period of ninety days after the date of his election, unless the Speaker of the Assembly for good cause shown extends the period; or
(d) he ceases to be a member of the Assembly under any provision of this Constitution or under any law." (Emphasis added).
21. It would at once be seen that Article 65 is a departure from the earlier provisions in the Constitutions of 1956 and 1962. The Constitution of 1956 made no distinction between a member and a member-elect. In the Constitution of 1962 while a distinction was made in Article 106 between a "person elected as a member" and a member subscribing to the prescribed oath that distinction disappeared when it came to be provided by Article 107 that such a person elected as member would lose his seat if he is in terms of Article 107(c) failed to make the requisite oath. Note also that Article 106 ibid. Employs the expression "A person elected as a member" whereas Article 65 of the present Constitution uses a distinct and apparently deliberate phrase "A person elected to a House', implying that such a person is not a member till he makes the oath in the form set out.
22. Thus, in the former successive Constitutional instruments it was a member who could cease to hold office as such member if he failed to make and subscribe an oath or affirmation or who even before the taking of such oath had resigned his seat (1962 Constitution). That is no longer the case under the present Constitutional dispensation. Needless to add that the Legislature is presumed to know the earlier legislation on the subject it is legislating and if it chooses to use different language, such cannot be without meaning and import. Indeed we pointed out to the learned counsel that under the Constitutional scheme a President-elect is not the President of Pakistan unless he makes the oath of office, much as a Judge appointed to a superior Court is not such Judge till he enters the oath of his office. The Constitution makes a like distinction between a person elected and a member of a House.
23. ' The departure in the Constitution of 1973 does not end here. In the first place, no time-frame has been fixed for a member to take his oath before the relevant House and no one loses his seat merely because he allows time to go-by. He only deprives his electorate of representation. His tenure, of course, commences with the tenure of the House and a lapse on his part to take a timely oath would reduce such tenure to the extent that corresponds to the tenure of the House or of the period for which he has been elected in the case of a Senator or in a bye-election. Another result is that because he is only a person elected and not a member his seat cannot fall vacant even though, not having taken due oath, he remains absent for 40 consecutive days of the sittings of the relevant House as postulated. Indeed, if the argument of the petitioner's counsel were to be accepted and the petitioner was not merely a person elected to the Senate but a member thereof, the petitioner by now, probably, would have lost his seat in the Senate if 40 consecutive days of the Senate sittings had already taken place, which perhaps is the position on the ground. May it also be noted here that whereas the relevant Articles in the 1956 and 1962 Constitutions used the word "fails", regarding non-taking of oath and vacation of the relevant seat, in course of time, Article 64 of the present Constitution, correspondingly speaks of his remaining "absent" as a member for forty consecutive days of sittings. The word "fail" is stronger and may not include an involuntary default whereas the word "absence" is weaker and may cover even absence generated for reasons not of one's own making. Mere absence of a member may, therefore, suffice and lead to loss of seat under Article 64 whereas under the precursor Constitutions an element of volition was necessary before loss of the seat came about. An effort was made to show that if the expressions "person" and "member", as used in other Articles of the Constitution and notably in Articles 49, 51, 53, 59, 60, 61, 65, 106, 223, 260, 271, 272 and 273, etc. Are examined, a clear impression is gathered that the word "person" has the same connotation as a member or holder of other office in the contemplation of the Constitution of Pakistan. The argument has been closely examined. Wherever the word "person" in the relevant context is used in the Constitution, it is to be viewed not otherwise than contextually and nowhere does it emerge that the word "person" is the equivalent of a "member" who has duly taken oath. The irresistible conclusion, therefore, is that the petitioner till such time he takes oath is not a member of a House of Parliament, in this case the Senate and the Chairman was not in error in holding that to be so.
24. ' The next question which is thus thrown up is whether the petitioner who, apparently, is a lawfully elected candidate for the upper House of the Parliament can be precluded to take oath merely because the petitioner happens to be under certain indictments and facing trials. The learned Deputy Attorney-General has referred us to three judgments from the Indian jurisdiction on the point. Such are Re: Anandan AIR 1952 Madras 117, Raj Narain v. Atmaram 1954 Allahabad 319 and Kunjan Nadar v. The State AIR 1955 TC 154. In the first of these cases, it has been observed and quite correctly that it is only in exceptional cases that writs can issue pertaining to Legislative bodies and such may be instances where there has been a clear violation of statutory law or when principles of natural justice have been violated or, perhaps, where there has been a mala fide discrimination against an individual to the detriment of his rights. There may be other situations as well and it has correctly been said that it is impossible to define such matters with any exactitude. The second case pertains substantially to internal proceedings in legislative bodies and the rights and privileges incidental thereto. In the third case, the implications of a criminal trial and the far- reaching effects thereof on the continuity of the petitioner's seat in a Provincial Legislative Assembly were considered and apparently the learned Deputy Attorney-General relies on the following passage:- "The argument was that the petitioner stands in real danger of his seat being declared vacant by the House if he is not allowed to attend the next session of the Legislative Assembly, that by his non-attendance he will also be losing the allowance of Rs,10 per day and that his valuable rights should be safeguarded by an appropriate writ or direction from this Court. So long as the detention is legal--and in this case there is no dispute about its legality--the danger of the petitioner losing his seat or the certainty of his losing his daily allowance cannot possibly form the foundation for relief against the normal or probable consequences of that detention."
25. Such matters as above in so far as our Parliament is concerned have now been taken care of by Rules 72-A and 90 herein referred. Besides, on the basis of what has already been stated, the petitioner as a consequence of his continued trial and absence from the House is not likely to be effected because he is not yet a member of the Senate of Pakistan. Even so, the fact remains that in other jurisdictions, if a person is facing a criminal trial and happens to be interned as a corollary thereof, there is no right vesting in him to be taken to the legislative body of which he be a member, irrespective of such trial and consequent internment. The above rules are a departure and a peculiarity of Pakistan, right or wrong we have not been called upon to determine.
26. ' Reverting, it still remains to be seen whether the petitioner does not have a right to be administered the requisite oath of his office. It has not been disputed that previously no member of a legislative body in Pakistan has been denied the claimed right of , being taken to the relevant assembly and administered the necessary oath or affirmation. It is, however, disputed that there is a right to be administered such oath and a greater cavil is taken to the fact that the petitioner never applied to the Federal or the Provincial Governments for the needful to be done. To this, Mr. Iqbal Haider, the petitioner's learned counsel, has replied by saying that the manner in which the request was opposed in the Senate by the Federal Law Minister and the Attorney-General for, Pakistan, left no room for doubt that such a request, if made to the Executive, would bear no fruit.
27. ' It is hardly open to question that the petitioner, through the Provincial Assembly electoral college, represents a substantial segment of the electorate and if the petitioner is not administered the relevant oath of office as Senator that segment of the electorate would stand deprived of due representation in the upper House of the Parliament. Such is the right of the electorate and such is also a right of the petitioner. Indeed, the Constitution recognizes the same to be also a right of the political party on whose ticket a candidate is returned to a legislative body. The following observation from the judgment of Ajmal Mian, J., in Muhammad Nawaz Sharif v. Federation of Pakistan PLD 1993 SC 473, (673-4) may have some relevance:-- "16. I am inclined to hold that the right to form a political party and to be a member of a political party enshrined in clause (2) of Article 17 does not culminate upon winning of the elections as was contended by the learned Attorney-General and Mr. S.M. Zafar but it is a continuous political process which includes the right of the petitioner to remain as a member of the National Assembly or as a Prime Minister till the time the life of the Assembly or the tenure of the Prime Ministership is terminated lawfully in accordance with the provisions of the Constitution. It is true that nobody can claim any vested right to remain a Member of the National Assembly or to be a Prime Minister for the period of five years that an M.N.A. Or a Prime Minister can claim that he should be allowed to function so long as the life of the Assembly or his tenure is not terminated in accordance with the provisions of the Constitution. Any infraction of the above right without legal basis will inter alia attract Article 17(2) of the Constitution besides being violative of the relevant Constitutional or statutory provision. Since the majority, including me, has held that the impugned order of 18th April, 1993, does not fall within the ambit of Article 58(2)(b) of the Constitution, the termination of the life of the Assembly and the tenure of the petitioner as the Prime Minister besides being violative of the above provision of the Constitution will also attract Article 17(2) of the Constitution, as admittedly the petitioner was the leader of a political party which commanded the majority in the National Assembly."
28. ' It is implicitly conceded when the respondents say that the petitioner is only a member-elect that the relevant part of the electorate is not represented in the Senate so long as the petitioner is not administered the oath under reference. This, therefore, is a right which calls for enforcement. It cannot be enforced by the Chairman because he has correctly held the petitioner, at the present time, to be a non-member. The only alternative was for the petitioner to move the relevant Government, something which the petitioner refrained from doing in circumstances that do not admit of much controversy. In all probability even if approached, the Federal and the Provincial Governments would have declined the overture. The concerned Courts, as approved by the dicta in Federation of Pakistan v. Public-at-Large (ibid) have already accommodated the petitioner to go and attend a session of the Senate provided that the proceedings in the relevant cases are not impeded. It is in these circumstances that the petitioner seeks relief in the petition. It will be unjust and indeed unlawful to deny relief to the petitioner. Here is not a case of a member, already inducted, being precluded from attending to his functions as such member on account of his internment. On the contrary, involved in these proceedings is a right to represent his constituency, which is being denied to the petitioner. It is a right which the Courts will enforce so long as democracy prevails in this country. Indeed, we posed a question to the learned Advocate-General, Sindh and the Deputy Attorney-General for Pakistan as to what would have happened and as to whether relief would still have been resisted if, at a given time, the party in power held elections, framed questionable cases against those who were elected on the platforms of their adversary parties, interned them and denied them oaths of their offices and thus conjured up a majority to continue in power. Would the affectees have no relief even in such an extreme scenario? They were unable to answer this question.
29. Having examined the controversy from every possible angle, it is manifest that the petitioner has a right and where there is a right, there must be a remedy. We would, therefore, allow this Constitutional petition and require the Provincial and the Federal Governments to make arrangements to allow the petitioner to attend the earliest session of the Senate of Pakistan. In so doing no further permission from the concerned Courts is necessary because that is already there and besides sitting in the High Court we exercise our own powers in granting the necessary permission.