P L D 1967 Lahore 227

Before Inamullah Khan, C. J., Waheeduddin Ahmed and

Sajjad Ahmad, JJ

A. M. KHAN LEGHARI, C. S. P., MEMBER BOARD OF

REVENUE, WEST PAKISTAN-Petitioner

versus

(1) GOVERNMENT OF PAKISTAN THROUGH

SECRETARY TO GOVERNMENT OF PAKISTAN
ESTABLISHMENT DIVISION, RAWALPINDI;

(2) SPEAKER, NATIONAL ASSEMBLY, RAWALPINDI

CANTT.,

(3) ELECTION COMMISSION, PAKISTAN THROUGH

ITS SECRETARY AT RAWALPINDI CANTT., AND

(4) ABDUL GHAFOOR KHAN, COLONEL NAWABZADA,

HOTI-MARDAN (WEST PAKISTAN) AND 34
OTHERS-Respondents

Writ Petition No. 1104 of 1966, decided on 26th October 1966.

From Judgment of Inamullah Khan, C. J.:-

(a) Constitution of Pakistan (1962), Art. 171(1) read with Art.
98-Elections required to be held under the Constitution can be
questioned prima facie only in accordance with National and
Provincial Assemblies (Elections) Act (VII of 1969)-Question of
and disqualification of sitting Member of Assembly on ground of
holding an office of profit is an "election dispute"-Cannot be
raised under Art. 98-Right to contest elections a statutory and not
a civil right-Interpretation of statutes-Rule of literal construction;
nothing to be added or taken from a statute-Post-election disputes
do not attract Art. 98-Courts have interfered with election
disputes only in cases where election authorities had acted
without jurisdiction, in excess of jurisdiction or mala
fide-Constitution of Pakistan (1962), Art. 103(2)(a).
Prima facie, under Article 171 of the Constitution the election of
members of the National Assembly can be questioned only in
accordance with the National and Provincial Assemblies
(Elections) Act, 1964.

The question as to whether some -of the members were

disqualified from being elected as, and from being, members of
the National Assembly on the ground that they held office of
profit in the service of Pakistan is a dispute arising in connection
with such an election.

It would appear from section 72 of the 1964 Act that the question
of the alleged disqualification, of some of the members on the
grounds that they held office of profit in the service of Pakistan
was a dispute arising in connection with an election held under
the Constitution. The question is as to whether the petitioners can
raise the question under Article 98 of the Constitution that the
respondents were disqualified from being elected as and from
being, members of the National Assembly.

It is true, there is no provision in the 1964 Act or under Article

171 of the Constitution making provision in favour of a person
other than a candidate to challenge an election of a returned
candidate. The question is whether this can be a valid ground for
invoking the provisions of Article 98 which is "subject to the
Constitution", including Article 171. If the intention of the
framers of the Constitution was to confine the challenge of an
election to the contesting candidates, the Court cannot extend it in
favour of others. The language under examination is clear and
admits of no exception. It lays down, in the first place, in
mandatory terms that no dispute arising in connection with such
an election (election under the Constitution) or referendum shall
be decided otherwise than under such a law (1964 Act). In the
second place, it ordains that the validity of such an election or
referendum shall not be called in question in any manner except
in accordance with such a law.

It is but a corollary to the general rule of literal construction that

nothing is to be added to or to be taken from a statute, unless
there are similar adequate, grounds to justify the inference that
the Legislature intended something which it omitted to express. It
is a strong thing to read into an Act of Parliament words which
are not there and in the absence of clear necessity, it is a wrong
thing to do. The Court is not entitled to read words into an Act of
Parliament unless clear reason for it is to be found within the four
corners of the Act itself.

[Maxwell on Interpretation of Statutes, 11th Edn, p. 12 and

Craies on Statute Law, 6th Edn., p. 66.] ,

Held, that the only method by which an election dispute can be

resolved is under the 1964 Act.

There was no force in the contention that because Article 171 of

the Constitution did not make provision for post-election
disputes, the provisions of Article 98 of the Constitution were
attracted.

If no right was created under the 1964 Act, it meant that the
Legislature did not -intend to do so and the same could not be
conferred under Article 98 of the. Constitution.

It is true that Courts in Pakistan had interfered with election

disputes under certain circumstances . . . . . in those cases the
Courts found that the authorities entrusted with election disputes
had either acted without jurisdiction, in excess of jurisdiction, or
mala fide. In the present case, the question before the Court was
not to scrutinize any decision of the authorities mentioned in the
1964 Act in the light of the principles laid down in various
authorities. On the other hand, the proposition was as to whether
the election of the respondents could be challenged under Article
98 of the Constitution in violation of the mandatory injunction
contained in Article 171, which proposition must be answered in
the negative.

Mian Jamal Shah v: Election Commission P L D 1966 S C 1 and

Pakistan v. Ahmad Saeed Kirmani P L D 1958 S C (Pak.) 397 rel.

(b) Constitution of Pakistan (1962), Art. 111(1) read with Arts.

103(2)(a), 110(1)(d), 209 & 231-Voting, part of proceedings and
in Assembly-Rules of Procedure (made by President) of National
Assembly, r. 152-Position of National Assembly under 1962
Constitution same as under 1956 Constitution-Voting on (Third,
Fourth and Sixth) Amendment Acts amending 1962 Constitution
"protected" under Art. 111(1)-P L D 1958 S C (Pak.) 397, held,
applicable, after considering principle, viz., that every judgment
is to be read as applicable to particular facts proved or assumed to
be proved-Principles. of "equity and good conscience. whether
can be invoked in examining validity of proceedings of Assembly
-Allegation that some members were interested in carrying out
Third Amendment Act could be made subject of a "substantive
motion" in National Assembly-Not examinable by Court under
Art. 98.

Rule 152 of the Rules of Procedure (made by the President) does

not leave any doubt that voting by the members of the National
Assembly is a part of the procedure or proceedings of the
Assembly.

[Erskine May's Parliamentary Practice, 17th Edition, pp. 62 &

171.]

Voting by the members relates to the internal proceedings of the

House.

The position of the National Assembly of Pakistan under the

(1962) Constitution is the same as the one under (1956)
Constitution.

Badrul Haq, Khan v. Election Tribunal P L D 1963 S C 704 and

Pakistan v. Ahmad Saeed Kirmani P L D 1958 S C (Pak.) 397 ref.

Whatever principle has been laid down in P L D 1958 S C (Pak.)

397 is of high authority and being the law declared is binding on
the High Court. In that case the facts were of little importance in
considering the provisions of Article 89 of the 1956 Constitution.
The only question that was to be considered was as to whether the
result of the division for the election of the Speaker was "the
proceedings of an Assembly" and thus protected under Article 89
of the 1956 Constitution. In the present case the question was as
to whether the voting by some of the members of the National
Assembly, who participated in the three Constitutional
Amendments, was "proceedings of the Assembly" and therefore,
protected under Article 111(1) of the Constitution. The principles
laid down in P L D 1958 S C (Pak.) 397 were applicable on all
fours to the present case.

Quinn v. Leathem 1901 A C 495 ; Attorney-General of Canada v.

Attorney-General of Ontario A I R 1932 P C 36; Mst. Hamida
Bano v. Ashiq Hussain P L D 1963 S C 109 and Hari Bakhsh v.
Babu Lai A I R 1924 P C 126 considered.

It was contended that some of the members of the National

Assembly who participated in these Constitutional Amendments
being unqualified, the proceedings if not allowed to be challenged
in Court would be against the principles of equity and goon
conscience. Reliance was placed on the Debates of the National
Assembly at the time of the Third Amendment. It was submitted
that the Law Minister was in great hurry to have the Amendment
carried out. He proposed for the suspension of some of the Rules
of Procedure of the National Assembly in order to rush through
the Amendment. Some of the members had pointed out that there
were some members who were disqualified. These objections
were ignored:

Held, there was not much of the following observations in 397:--

"It seems to me that to invoke principles of justice, equity, and

good conscience as known to the Courts and as applied by the
Courts to the resolution of matters lying between individuals or
between individual subjects and the State, into the formation of
majorities for the purposes of a decision by an Assembly, is to
ignore the realities of the matter and involves a risk of grave
injury to the compromise, represented by the Constitution,
between the great powers, whose equilibrium inter se is the only
guarantee of the freedom and well-being of the country. All the
evils to which the learned Judge has referred in the passage cited
above have appeared from time to time in the functioning of
popular Assemblies all over the world.

Pakistan v. Ahmad Saeed Kirmani P L D 1958 S C (Pak.) 397 ref.

It was next contended that some of the members were interested

in the Third Amendment and therefore, were disqualified to vote.
The members of the Assembly could raise a substantive motion to
challenge the vote of the members who were alleged to be
interested in the Amendment inasmuch as they were alleged to be
holders of office of profit in the service of Pakistan", Vide Rules
of Procedure of National Assembly of Pakistan, rule 152(3).

(c) Constitution of Pakistan (1962); Art. 111(1), (2) read with

Arts. 98 & 108 and Rules of Procedure of National Assembly, rr.
71 & 72-"Authentication" of a Bill by Speaker and "signing"
thereof under rr. 71 & 72 and "publishing" same in Gazette as an
Act of Central Legislature-Refer to "conduct of business" in
Assembly-Not subject to the jurisdiction of High Court under Art.
98.

The authentication of a Bill, signing thereof (rule 71) and

publishing it in the Gazette (rule 72) as an Act of the Central
Legislature, refer to the conduct of the business within the
meaning of sub-clause (2) of Article 111 of the Constitution. This
cannot be the subject-matter of -jurisdiction under Article 98 of
the Constitution in the High Court.

(d) Constitution of Pakistan (1962), Art. 110(1)(d)-Reason for

enacting provision-Constitution (Third Amendment) Act (IV of
1965)-Constitution (Fourth Amendment) Act (XV of
1965)-Constitution (Sixth Amendment) Act (1l of 1966)-Not
illegal on ground that persons alleged to be not entitled to vote
voted for the Acts.

Article 110(1)(d), Constitution of Pakistan (1962) is a validating

provision. The Legislature visualised the difficulty with which it
may be confronted if some of the members, who were
participating in the proceedings and against whom election
petitions were pending, were subsequently found to have been
illegally elected. Election petitions are not quickly disposed of.
Then there' are petitions in the High Court and sometimes appeals
to the Supreme Court. This takes quite along time. In the
meantime number of important Acts may have been passed by the
Assembly in which the persons who were subsequently declared
to have been illegally elected had participated. If the Acts in
which these members, who were subsequently found to be
illegally elected, had participated were set aside on that ground,
there would be chaos and confusion in the country. It was to
safeguard against this difficulty that the Legislature made this
provision. If some of the members on the date they participated in
the proceedings were disqualified on the ground alleged, the
Legislature has given a complete protection under Article 110(1)
of the Constitution to the proceedings resulting in the Third,
Fourth and the Sixth Amendments of the Constitution. These
Amendments cannot, therefore, be held to be illegal on the
ground that persons not entitled to vote had voted.

Federation of Pakistan v. Ali Ahmad Hussain Shah P L D 1955 F

C 522 and Sajjad Ali Khan v. Ch. Fazal Elahi P L D 1957 Lah.
940 ref.

(e) Constitution of Pakistan (1962), Arts. 110(1)(d) &

111(1)-Contention, that Arts. 110(1)(d) & 111(1) do not apply to
Part XI containing Arts. 208, 209 & 210 (provisions for
amending Constitution), repelled-Constitution of Pakistan (1962),
Art. 231.

All that Article 208 lays down is that the conditions prescribed in
Articles 209 and 210 will have to be complied with before the
Constitution is amended. It does not mean that the other
provisions of the Constitution will not be applicable. All it means
is that a Bill to amend the Constitution cannot be passed unless
2/3rds of the total number of members of the National Assembly
vote for it. It is not possible to read in Article 208 the word "only"
after "Subject to this Constitution". In this connection, reference
may be made o Article 231 of the Constitution. The President
made Rules of Procedure in June 1962, known as the Rules of
Procedure of the National Assembly of Pakistan. The Rules of
Procedure so made are applicable to the amendment of the
Constitution as well with this modification that the conditions
provided under Articles 209 and 210 of the Constitution will have
to be followed.

(f) Constitution of Pakistan(1962), Art. 110(1)(d)-Sub clause

(d) not confined to proceedings which are "otherwise"
valid--"No" proceeding, means "not any" proceeding-Proposition
that a Bill presented to the President for assent was - not passed
by requisite number of members required by Art. 209,
Constitution of Pakistan (1962) if 2/3rd majority included
members not qualified to vote, negatived-Argument that "voting"
does not relate to proceedings because Speaker has no power to
forbid a person from voting repelled-Rules o Procedure o
National Assembly r. 152(2) does not violate any constitutional
provision-Validity of votes, even if a question of law, cannot be
considered by Courts-Constitution of Pakistan (1962), Art. 98.

There was no force in the contention that a correct interpretation

of Article 110(1)(d) would mean that the proceedings of an
Assembly cannot be invalidated only because some members
who were not entitled to vote participated in the proceedings if
they are otherwise valid. In other words, the submission was that
the proceedings of an Assembly could not be invalidated if for
instance 120 people voted for an amendment of the Constitution
and out of these persons ten persons were disqualified. As under
the Constitution the votes of 104 members would have been
sufficient to amend the Constitution, the votes of 10 disqualified
persons were immaterial. The word "no" is of great significance.
It means "not any". It was not necessary for the Legislature to
make constitutional provision to validate a proceeding in which
the requisite number of qualified persons had participated. On
general principle also, if by ignoring the invalid votes, a Bill was
passed by the requisite number of votes, the same would have
been good law. It was con tended that the assent was not part of
the "internal proceedings" of the Assembly. The contention was
that a Bill to amend the Constitution could not be presented to the
President unless it was passed by the votes of not less than 2/3rds
of the total number of members of the Assembly. In this
connection it was sought to be made out that as 33 members who
were disqualified participated in .the Amendment it cannot be
said that the Bill presented before the President was passed by
2/3rds of the total number of members of the Assembly. This
argument suffers from a primary defect. ' If it is once conceded
that voting is a part of the proceedings of the Assembly, the same
will be protected under Article 111(1) of the Constitution. If it
cannot be challenged it will have to be taken for all legal
purposes that the Bill was in fact passed by 2/3rds of the total
number of members of the Assembly. In that view of the matter,
it cannot be said that the Bill presented to the President for assent
was not passed by the requisite number of members of the
National Assembly as required under Article 209 of the
Constitution.

Validity of votes is a question of challenging proceedings and is

not confined to holding that the requisite number of members did
not vote.

It was submitted that as the Speaker has no power to forbid a

member of the Assembly from voting on the ground that he was
disqualified, the voting cannot be said to relate to the proceedings
of the Assembly. There was no force in this submission. The
power of control over the members of the Assembly cannot
determine whether voting is a matter of procedure of the
Assembly or not. Everything that takes place in the House is said
to be the "internal proceedings" of the Assembly.
Rule 152(2) of 'the Rules of Procedure of the National Assembly
which provides that the result of voting by a division shall be
announced by the Speaker and shall not be challenged is not in
violation of the Constitution. No violation of any Constitutional
provision is involved in rule 152(2).

Validity of vote may be a- question of law but if the Constitution

bars its consideration by a Court of law, the same cannot be
questioned.

(g) Constitution of Pakistan (1962), Art. 103(2) read with Arts.

110(l)(d) & 111(1) and with Constitution (Third Amendment)
Act (IV of 1965)-Act valid legislation Lambardars etc., do not
hold "office of profit" and are not disqualified from voting in
National Assembly.

Held, after considering constitutional provisions contained in

Arts. 110(l)(d) and 111(t), Constitution of Pakistan (1962), that
the Third Amendment of the Constitution is a valid piece of
legislation. The National Assembly by the Third Amendment by
adding Schedule 5 has specified that the holders of certain offices
cannot be said to hold "office of profit in the service of Pakistan".
In view of the Third Amendment, Lambardars, Chairmen of
Union Councils and Union Committees and also persons who are
in Pakistan Army Reserve cannot be said to "hold office of profit
in the service of Pakistan" within the meaning of Article 103(2)
of the Constitution so as to be disqualified from being elected as
members of the Assembly.

(h) Constitution of Pakistan (1962), Art. 98-Petition seeking

declaratory relief based on alleged invalidity of enactment on
ground of some members of National Assembly taking part in
voting in relation to enactment who were allegedly not qualified
to vote-Whether relief in nature of quo warranto a necessary
requirement of petition.

Petitioner's counsel, during the course of the arguments, made an

application for amendment of the petition so as to include the
relief of quo warranto. He made this application by way of
precaution. He was apprehensive that the petition may be
dismissed on the ground that a relief of quo warranto had not
been asked for.

On the statement of the Attorney-General that the petition could

not be dismissed (if petitioner was otherwise entitled to the relief
he had asked for) on the ground that no prayer for quo warranto
had been made, the application was dismissed.

(i) Mala fide-Allegations against Government-Presumption of

bona fide in respect of actions of Government. It was contended
on behalf of the petitioner that respondent No. 1 Government of
Pakistan - had acted mala fide under Article 178 of the
Constitution, in ordering his retirement. No particulars of mala
fide were given against the competent authority entitled to take
action under Art. 178. All that was mentioned in the petition was
that some senior -officers of the Government were against the
petitioner. This fact by itself could not support, even if accepted,
the allegation of the petitioner against the Government. There
was no allegation that these officials in some way influenced the
Government to take action against the petitioner under Article
178 of the Constitution. The presumption was that every action of
Government is bona fide.

Sai Muhammad v. West Pakistan Province P L D 1958 S C (Pak.)

181 and Imtiaz Ahmad v. Ghulam Ali P L D 1963 S C 382 ref.
(j) Constitution of Pakistan (1962), Art. 178, cl. (4)(a) as added
by Constitution (Sixth Amendment) Act (11 of 1966)-Words "in
the public interest"-Order of retirement of Government servant,
whether "in the public interest"-Question not within scope of
inquiry by Court-Matters for "subjective satisfaction"-Decision of
competent authority final. Regarding the question as to who is to
be the judge of "public interest", the Court has no power to
inquire whether the retirement was in "public interest" or not.

Bhagat Singh v. King-Emperor 58 1 A 169 ref.

The question whether it is in the public interest to retire a certain

public servant under Article 178 of the Constitution or not, is a
question of which the competent authority is the sole judge. The
Court cannot enter on a contentious and protracted inquiry on the
question of public interest.

King-Emperor v. Benoari Lai Sharma 72 1 A 57 ref.

There is difference between "emergency" and "public interest",

but if the Constitution has entrusted the determination of the
question of emergency or of public interest to a certain authority,
this Court cannot substitute its own judgment after a contentious
and protracted inquiry.

Where the Legislature has given a power of subjective

satisfaction to an authority, its decision is final. It cannot be
questioned in any Court.

Ezra v. Secretary of State I L R 32 Cal. 605and Wijeyesekera v.

Festing 1919 A C 646 ref.

From Judgment of Wahiduddin Ahmad, J.:

(k) Constitution of Pakistan (1956), Art. 179-Lambardar not in

the service of Pakistan"-[Principle held good till at least
14-6-1965 when Constitution (Third Amendment) Act (IV of
1965) was passed].

The principle that the Constitution of 1956 did not intend to

include a Lambardar in the service of Pakistan. still held the field
(on 14-6-1965, when constitution (Third Amendment) Act, 1965,
was passed). In this background no bad motive can be attributed
to the members who happened to be Lambardars, etc. who
participated in voting for the Act.

Nawab Sajjad Ali Khan v. Chaudhari Fazal Illahi, Speaker

Legislative Assembly and others P L D 1957 Lah. 940 ref.

Election Commission of Pakistan v. Nawab Sajjad All Khan P L

D 1960 S C 235 considered.

(l) Rules of Procedure of National Assembly, r. 170 read with

rr. 58 & 59 - Suspension of rr. 58 8c 59 - Legislation
[Constitution (Third Amendment) Act (IV of 1965)] passed in
single day after suspension-Not extraordinary or objectionable.

There is nothing extraordinary or objectionable in passing

legislation (in a single day) after suspending rules 58, 59 under
rule 170, Rules of Procedure of National Assembly. The Rules of
Procedure authorised (such a) course of action on the approval of
the House. Besides even in the House of Commons, which is
taken as a model of Parliamentary institution, there are instances
in which legislations have been passed with unusual expedition.

May's Parliamentary Practice, (15th Edn. 1950), p. 571 and

Attorney General of Canada v. Attorney General for Ontario 78 L
T 697 ref.

(m) Interpretation of
statutes-(Constitution)-Interpretation, prerogative and duty of
superior Courts (Conflict between constitutional provisions and
provisions of an enactment) Constitution to be interpreted as an
"organic whole".

Interpretation of the Constitution is a prerogative and the duty of

the superior Courts. In cases of conflict between the supreme law
'of the Constitution and an enactment it is the duty of the superior
Courts as its preservers, protectors and defenders-to declare the
enactment in question as invalid to the extent of its repugnancy
with the constitutional provision in the absence of any bar either
express or implied. At the same time it is the duty of the Courts to
interpret the Constitution as an organic whole giving due effect to
its various parts and trying to harmonise them so as to make it an
effective and efficacious instrument for the governance of the
country.

Fazhil Quader Chowdhury and others v. Muhammad Abdul

Haque P L D 1963 S C 486 ref.

(n) Constitution of Pakistan (1962), Arts: 110(1)(d) & 209

Validity of votes of members of National Assembly-Whether
question can be examined by Courts - Distinction between
position of National Assembly and Municipal Corporations or
Legislatures with strictly limited functions-National Assembly
not a non-sovereign body Whether right to vote is different from
act of voting-"Proceedings", meaning of-Article 209 cannot
render Art. 110 (1)(d) ineffective.

The National Assembly cannot be placed on the same level as a

Municipal Corporation or a Legislature having strictly limited
functions. It is impossible to hold that an Assembly which has the
power to amend the Constitution is a non sovereign body.

Federation of Pakistan v., Ali Ahmad Hussain Shah P L D 1955 S

C 522; Mansoorul Haque, v. Controlling Authority P L D 1963 S
C 652; Nariman v. The Corporation of the City of Bombay A I R
1923 Bom. 305; Vinod Kumar and others v. State of Himachal
Pradesh A I R 1959 S C 223 and Attorney-General-for New
South Wales and others v. Irethown and others 1932 A C 526
distinguished.

[The above observation was made in the course of discussion of

counsel's argument that the validity of votes is a question of law
and that a Court of law has jurisdiction to entertain objection.
Counsel's reliance was on the cases cited, which were all
distinguishable, being related to Municipal Corporations or
Legislatures having strictly limited functions and on other
grounds].

Article 110(1)(d) provides that "no proceedings in an Assembly

shall be invalid by reason only that a person who was not entitled
to do so was present or voted or otherwise participated in the
proceedings." It therefore contemplates to cure two types of
irregularities. Firstly it cures the proceedings if any person who
was not entitled to do so was present at or otherwise participated
in the proceedings of the Assembly. Secondly it cures the defect
if any person who was not entitled to do so voted in the
proceedings.

In fact in this respect the Pakistan Constitution has gone much

further than what was provided in the Government of India Act
1935 or what is provided in some Municipal statutes or in the
Companies Act.

Validating provisions are not unknown to the constitutional

legislations. The underlying idea behind them is that in the
absence of such a provision chaos will result in the governance of
a country if at some stage any such defect as is mentioned in
sub-Article (1) (d) of Article 110 is discovered.

Equally unsound is the argument that right to vote is something

different from the act of voting and has no connection with the
proceedings of an Assembly. According to May's "Parliamentary
Practice", the primary meaning, as a technical parliamentary term
- of "proceedings" is some formal action, usually a decision taken
by the House in its collective capacity. This is naturally extended
to the form of business in which the House takes action, and the
whole process, the principal part of which is debate, by which it
reaches decision. According to the learned author "an individual
member takes part in a proceeding by speech but also by formal
action, such as voting, giving notice of motion etc., or presenting
a petition or a report from a committee, most of such action,
being time-saving substitute for speaking."

Co ffin v. Co ffin 4 Mass 1 ref:

The present case stands on a much firmer ground because the act
of voting has been validated in the sub-Article under
consideration in relation to the proceedings of an Assembly
which clearly indicates that such act forms part of the
legislative process. If an attack-is made on the right of a member
to vote in the proceedings of an Assembly it is nothing short of
questioning the validity of the proceedings of such an Assembly
and the mere fact that Article 209 happens to be in a separate Part
of the Constitution by itself cannot be a good ground to render
ineffective the provisions of Article 110(1) (d) of the
Constitution.

(o) Constitution of Pakistan (1962), Arts. 19 & 20 read with

Art. 111(1)-Voting on Bill; President's assent to Bill-Validity of
acts barred from consideration of Courts-President "part and
parcel" of National Assembly-"Assent" part of "proceedings".

The words [in Article 19, Constitution of Pakistan (1962)] "there

shall be a Central Legislature of Pakistan" followed by a comma
and the words "which shall consist of the President and one
House" are followed by another comma which clearly indicates
that the Central Legislature of Pakistan consists of the President
and one House and is to be known as the National Assembly of
Pakistan.

Article 20 only provides that there shall be 156 members of the

National Assembly, one half of whom shall be elected in
accordance with the Constitution and law from the Province of
East Pakistan and the other half from the Province of West
Pakistan and out of them three of the seats for the members of
each Province shall be reserved exclusively for women.

In Article 19, the old notion known to the constitutional students

that the Queen or the King or the President are part and parcel of
the Parliament has been introduced, while in Article 20 the
manner in which the National Assembly has to be composed is
provided.

Under Article 19 of the Constitution of 1962, the Central

Legislature of Pakistan consists of the President and one House
and it is also to be known as the National Assembly of Pakistan.
In this view of the matter the President is part and parcel of the
National Assembly of Pakistan.

In Article 209(1) of the Constitution, it is provided that

"A bill to amend this Constitution shall not be presented to the

President for assent unless it has been passed by the votes of not
less than 2/3 of the total number of members of the National
Assembly."

Moreover, the President has a right to address the National

Assembly and to send messages. The life of the office of the
President goes with the life of the National Assembly. Under
Article 23(4) if the President dissolves the National Assembly "he
shall cease to hold office upon the President elected as his
successor entering upon his office." Considering the case in this
light there can be no doubt that when a Bill is presented, whether
it is an ordinary legislation or a constitutional amendment, to the
President for his assent, it is in the formative stage of the
legislative process and this sphere of activity can be described as
nothing else but a part of the proceedings of the National
Assembly. In this view of the matter it is quite obvious that if any
objection is raised about the validity of the assent or about the
validity of the total number of votes cast in support of the
constitutional amendments, scrutiny of this question will be
barred under Article 111(1) of the Constitution.

Federation of Pakistan etc. v. Moulvi Tamizuddin Khan P L D

1955 F C 240 ref.

[Cf. Article 43, Constitution of Pakistan (1956); Article 79,

Constitution of India; section 1, Australian Constitution.]

(p) Constitution of Pakistan (1962), Part XI, Arts. 208 & 209
read with Arts. 27, 28, 110(1) & 111(1)-Procedure for
amendment of Constitution same as for passing an Act, subject
only to provisions of Part XI - Interpretation of statutes -
(Interpretation of Constitution)-Should be such as leads to
harmonious results Part XI not a complete code for passing
constitutional amend ments-Rules of Procedure for National
Assembly (framed by President), r. 57 makes ordinary procedure
applicable in addition to special procedure of Part XI,
etc.-President's assent to Bill amending Constitution part of
"proceedings" of Assembly Recording of votes is "internal
proceeding" of House-"Proceeding" found on "coercion, fraud or
bad faith", nevertheless "proceeding" of House-Precedents-Obiter
of Supreme Court binding on High Court-Interpretation of
statutes-Omission of provision of earlier enactment from' later
enactment-Not of importance in absence of any intention to
contrary-Constitution of Pakistan (1956), Art. 216(2) Constitution
(Third Amendment) Act (IV of 1965) Validity not open to
consideration by Court on ground of alleged disqualification of
Assembly members who participated in voting.

A well recognised principle of interpretation of a Constitution is

that all its provisions should be construed in such manner that it
may lead to harmonious results.

Part XI does not provide for the manner in which a constitu tional
legislation should be passed by the National Assembly. On the
other hand, Article 208 specifically provides that "Subject to this
Part, this Constitution may be amended by an Act of the Central
Legislature."

Therefore, subject to what is provided in Part XI the other

procedure for the amendment of the Constitution will be the same
as for passing an Act. of the Central Legislature. What is an Act
of the Central Legislature is provided in Article 28. It provides
that when the President has assented or is deemed to have
assented to a Bill passed by the National Assembly it shall
become a law and shall be called an Act of the Central
Legislature. Therefore a Bill passed by the National Assembly
assented to by the President is called an Act of the Central
Legislature. The manner in which it is to be assented would be
the same as provided in Article 27. The only rider clause in
respect of the constitutional amendment under Article 209 is that
it shall not be presented to the President for assent unless it has
been passed by the votes of not less than two-thirds of the total
number ofthe members of the National Assembly.

Part XI of the Constitution is not a complete code of procedure

for passing constitutional amendments. So far as and gaps in the
procedure as to how and in what manner it is to be passed by the
National Assembly and how the President's assent is to be
obtained, one shall have to fall back on the rules of procedure
framed under Article 110(1) of the Constitution.

Shankari Prasad Singh Deo v. Union of India and others A I R

1951 S C 458 ref.
Rule 57, Rules of Procedure of National Assembly (framed by
the President) specifically provides that in respect of a Bill
seeking to amend the Constitution the special rules provided in it
shall apply in addition to the Rules of Procedure relating to
ordinary Bills in so far as they are not inconsistent with any
provision of the special rules. These special rules amongst others
provide-(a) that the Bill shall be declared as passed only if not
less than two-thirds of the total number of voters have voted in its
favour and (b) the voting on the Bill shall be by division only.
Thus in these special rules sufficient safeguard has been provided
to carry out the intention of Article 209 of the Constitution.

The legislative process of the amendment of Constitution starts

from the introduction of the Bill in the National Assembly and
continues up to the stage of the assent by the President and thus
the legislative process of giving assent to the constitutional
amendments is part of the proceedings of the National Assembly
and immune from attack under Article 111(1) of the Constitution.

Achi v. Lakchmi Achi and others A I R 1945 F C 25 and Pakistan

v. Ahmed Saeed Kirmani P L D 1958 S C (Pak.) 397 ref.

The question of recording of votes being governed by statutory

procedure makes it entirely an internal proceeding of the House,
and it is to be regarded as a requirement of the Constitution that
the manner of procurement of majority within the House shall not
be subject of scrutiny and determination by the Courts. The
Courts should not fail to recognize a proceeding as an Assembly
proceeding even if it is found on coercion, fraud or bad faith.

Mobinul Haq Siddiki v. Muhammad 1qbal, Speaker of the

Provincial Assembly, West Pakistan P L D 1964 Lah. 23; Badrul
Haque Khan v. Election Tribunal, Dacca P L D 1963 S C 704 ;
M. S. M. Sharma v. Dr. Shree Krishna and others A I R 1960 S C
1186; V. Ramchandra Rao and others v. Andhra Pradesh
Regional Committee A I R 1965 Andhra 306; Edinburg Railway
Co. v. Wanchop 8 E R 279 and Willoughby "Constitution of the
United States" Vol: 2, p. 652.
Even an obiter of the Supreme Court is binding on the High
Court. Besides, Cornelius, C. J., repelled a similar contention
holding that "the new National Assembly performs very much the
same function in the Constitution of 1962, as the proposed
National Assembly under the 1956 Constitution."

As regards omission of Art. 2(6(2) of 1956 Constitution from

Constitution of 1962 it was argued by petitioner's counsel that
formerly the certificate of the Speaker that a Bill had been passed
in accordance with law was conclusive and not questionable in
any Court, but in the present Constitution it had been deliberately
omitted :

Held, that no importance could be attached to this circumstance

because no such intention can be imputed to the framers of the
Constitution.

Government of Pakistan v. Akhlaque Hussain P L D 1965 S C

527 ref.

In the present case the challenge was in respect of something that

happened inside the chamber, namely the act of voting of the
respondent members. It was alleged that the votes of the
respondent members should not have been counted in support of
the impugned legislation notwithstanding the fact that their names
appeared on the roll of the Assembly maintained under rule 15 of
the Rules of Procedure and despite the fact that their seats had not
been declared- vacant. It could not be doubted that it was an
indirect attack on the validity of the proceedings of the National
Assembly dated 14-6-1965. It is settled law that what is not
permissible to be done directly cannot be permitted to be done
indirectly. It is not one of those cases in which the jurisdiction of
the High Court has been invoked to correct an error of law or any
transgression of jurisdiction by any authority. In the light of the
above discussion it is perfectly clear that the nature of the
objections raised on the validity of the impugned legislation falls
within the ambit of the provisions of Article III(1) of the
Constitution. It seems that both the act of voting and right to vote
of a member being activities inside the Legislature forms part of
the internal proceedings of an Assembly. The legislative process
of an enactment begins from the time of the introduction of the
Bill in the House of the Legislature and continues till it is passed
ending with the submission of the passed Bill to the President
under Article 27 of the Constitution for his assent. The
constitutional amendments under Article 208 being an Act of the
Central Legislature have also to be assented to under Article 27
of the Constitution subject to Article 209 of the Constitution. In
other words ordinary legislation is to be assented to if passed by
majority of votes, but constitutional legislation if it is passed by
not less than two-thirds of the total number of the members of the
National Assembly. The question whether the requisite number of
votes have been cast under Article 209 will be determined in the
same manner as the question whether a Bill has been passed by
majority of votes. The relevant rules applicable for such purpose
are rules 152 and 71 framed by the President pursuant to Article
231 of the Constitution. Applying these rules to a Bill falling
under Article 209 of the Constitution, cannot be said to be in any
way rendering it as ineffective constitutional provision because
every provision of the Constitution is to be interpreted in a liberal
manner in order to effectuate the intention of the framer of the
Constitution and to ensure the smooth and satisfactory
functioning of the different organs of the State. In this view of the
matter it is not open to the High Court to consider the validity of
the impugned legislation on the alleged ground of disqualification
of the respondent members.

A. K. Fazlul Qader Chowdhry v. Syed .Shah Nawaz etc. P L D

1966 S C 105 considered.

(q) Constitution of Pakistan (1962), Art. 98 read with Art.

171(1) and National and Provincial Assemblies (Elections) Act
(VII of 1964) -High Court's jurisdiction barred re-election
disputes-[Dispute relating to voting by members of National
Assembly (who were alleged to have been disqualified to be
members) to pass an enactment, viz., Constitution (Third
Amendment) Act (IV of 1965)].

The provisions of Article 171 of the Constitution read with

sections 53 and 57 of the National and Provincial Assemblies
(Elections) Act exclude the jurisdiction of the High Court under
Article 98 of the Constitution to entertain disputes arising in
connection with an election held under the Constitution. The
reasoning behind this principle is that since the Legislatures have
to perform important functions in democratic countries it has
always been recognised to be a matter of first importance that
elections should be concluded as early as possible according to
the time schedule and all controversial questions and all disputes
arising out of election should be decided and settled in
accordance with the law provided for it. This again is based on
the well recognised principle that it is the Legislature which
creates the right and it is its sole right td examine and determine
all matters pertaining to the election of its own members and if
the Legislature takes it out of its own hand and vests it in a
Special Tribunal that special jurisdiction should be exercised in
accordance with the law which creates it.

So far as the dispute of pre-election qualifications or

disqualifications of members is concerned, it could only be
determined in accordance with the National and Provincial
Assemblies (Elections) Act, 1964 and the High Court in its
jurisdiction under Article 98 of the Constitution is not competent
to determine such disputes. [p. 300]FFF

Jamal Shah v. Election Commission P L D 1966 S C 1 and

Akbarali v. Raziur Rehman Khawaja etc. P L D 1966 S C 492 ref.

[The dispute in this case related to voting by respondent members

of the National Assembly (who were alleged to have been
disqualified to be members of the Assembly on ground of holding
"offices of profit" at the time they had been elected) to pass the
Constitution (Third Amendment) Act (IV of 1965).

(r) Constitution of Pakistan (1962), Art. 98(2)(b)(ii) read with

Arts. 103 & 171(1)-"Continuing" disqualification of member of
Legislative Assembly can be questioned by quo warranto under
Art. 98(2)(b)(ii) in spite of Art. 171(1)-Order in quo warranto
would be effective from date it is issued and not from a prior
date-Prior acts of disqualified members cannot be attacked in
collateral proceeding.

There is abundant authority for the proposition that where there is

a continuing disqualification the right to hold the office may still
be questioned by quo warranto.
Article 98(2) (b)(ii) 3s is meant for such cases. As there is no
remedy available it can be invoked because it specifically
provides that any person may ask for an order requiring a person
in the Province holding or purporting to hold a public office to
show, under what authority of law lie claims to hold that office.
Undoubtedly, respondents (4 to 38) being members of the
National Assembly were holding a public office and therefore
their case could be covered by this provision. In the absence of
any bar in the Constitution in this respect in the case of
continuous disqualifications about which no remedy has been
provided by the Constitution, it is open, to any person in Pakistan
to invoke the jurisdiction of the High Court under Article 98 of
the Constitution for finding out the authority of a person to hold
any public office in the Province.

The above view, however, was not of any help to petitioners

because in the first place they had riot filed any petition under
Article 98(2)(b)(ii) of the Constitution. Secondly, the grant of any
relief in the nature of a writ of quo warranto would not produce
any effective result, because even if it is found that respondents
(4 to 38) were holding "office of profit" in the service of Pakistan
their seat can be declared as vacant from the date of the order of
this Court and not from any prior date. The intention of the
Constitution is that even if a disqualified person is elected as
member of the National Assembly, he will not be unseated so
long as a finding is not given by a competent authority on the
controversy raised. These are not acts void ab initio but are
declared void after an adverse decision is given by a competent
authority against a member. Until such a decision is given the
member is entitled to discharge his duties in an Assembly and his
acts would be as valid as of any other member, otherwise there is
no sense in enacting Article 104(2) which clearly provides that it
is only after the Chief Election Commissioner is of the opinion
that a member has become disqualified, that he shall cease to be a
member. Moreover, even in cases of pre-election disqualification
the seat of a member becomes vacant only after an adverse
decision of the Election Tribunal.

Even if respondents (4 to 38) are found to be disqualified from

being the members of the National Assembly their seats cannot
be declared as vacant as long as the controversy raised against
them is not properly adjudicated by a Court of competent
jurisdiction.

Held, the acts of the respondent members cannot be challenged or

attacked in a collateral proceeding.

Fazlul Qadar Chaudhry v. Muhammad Abdul Haque P L D 1963

S C 486; The King v. Beer (1903) 2 K B 693; Munir Ahmad v.
Returning Officer, Karachi and others P L D 1966 Kar. 1; Allah
Ditta v. Muhammad Munir and others P L D 1966 Lah. 770; Abul
A'la Maudoodi v. Government of West Pakistan P L D 1964 S C
673; U. Aye v. U. Chit Haling A I R 1941 Rang. 151 Patterson v.
Solomon 1960 2 A E R 20; Chaudhry v. Shah Nawaz P L D 1966
S C 105; Parameswaran Pillai Bhaskaran Pillai and another v.
State Prosecutor A I R 1951 Travancore Cochin 45; Toranto
Railway v. City of Toranto (1919) 46 C D L R 547; Scadding v.
Lorant 10 E R 164 and Frost v. Mayor Broghester 109 E R 578
ref.

Ahmad Saeed Kirmani v. Muhammad Nawaz Cheema, P. C. S.

and another P L. D 1966 Lab. 88; Election Commission v. Saka
Venkata Rao A I R 1953 S C 210; Muhammad Swaleh v. United
Grain and Fooder Agencies P L D 1964 S C 97; Ghulam Mohi-ud
-din v. Chief Settlement Commissioner P L D 1964 S C 829;
Akber Hussain v. West Punjab Province P L D 1964 Lab. 188;
Attorney General of Ceylon v. A. D. Silva P L D 1953 S C 58;
Fazal Karim Bros. v. Chief Settlement and Rehabilitation
Commissioner P L D 1964 Pesh. 129; Zainab Khatoon v. Ghulam
Shabbir P L D 1965 S C 55 and Khairuddin v. Abdul Hamid P L
D 1966 Lah. 362 distinguished.

Colley's Constitutional Limitations Vol. II, p. 1355.

(s) Constitution of Pakistan (1962), Arts. 98, 110(1)(d), 111(1)

& 171(1)-Question of validity of legislation impugned on ground
that it was not passed by two-thirds majority relates to internal
proceeding of National Assembly-Article 171(1) bar only to pre
election disputes - High Court under Art. 98 competent to
adjudicate on "continuing disqualification of members of
Assembly-Relief, however, not available because disqualification
removed by impugned legislation-Validity of action of de facto
members cannot be challenged in collateral proceeding.

Held : (1) That Article 110(1)(d) and Article 111(1) of the

Constitution are a bar to the jurisdiction of the High Court as the
objection to the validity of the impugned legislation that it was
not passed by the votes of not less than two-thirds of the total
number of members of the Assembly relates to the internal
proceedings of the National Assembly.

(2) That Article 171 is a bar to the- jurisdiction of this Court only
in respect of adjudication of pre-election dispute. The High Court
is competent under Article 98 of the Constitution to adjudicate
upon the continuous disqualification of members of an Assembly.

(3) That relief under Article 98 of the Constitution is no longer

available because whatever disqualification existed has been
removed by the impugned legislation.

(4) That in collateral proceedings the validity of action of de facto

members of a Legislature cannot be challenged.

From Judgment of Sajjad Ahmad, J:-

(t) Constitution of Pakistan (1962), Art. 103(2)-"Disqualified

from being elected" as, and "from being a member", of an
Assembly - "Disqualified from being a member" refers to
disqualification that occurs after election and not that flows from
election.

While the expression "disqualified from being elected" is not

open to any doubt that which follows, viz., "disqualified from
being" can have a reference either to the accrual of a
disqualification after election or the continuance of a pre- election
disqualification in the sense that "he shall be disqualified to
continue or remain as a member", or to both.

If a person is disqualified from "being elected" the question of his

"being a member" cannot be contemplated in the same breath
unless he is elected, in spite of that disqualification. The use of
the expression "being a member" in that context as covering the
existence of a pre-election disqualification would appear to be
otiose. The phrase "disqualified from being a member" refers to
the sufferance of a disqualification that occurs after the election
and not that flows from the election itself. A reference to the legal
remedies provided for removing disqualified members makes the
point clear. If a pre-election disqualification can be challenged
only, according to the law as laid down under Article 171 of the
Constitution, can it be said that if the disqualification is not
challenged in the manner provided, instead of dying a legal death
it remains alive for an attack by other modes? This is a
contradiction in terms which could not have been intended by the
Constitution.

(u) Constitution of Pakistan (1962), Art. 171(1) read with Art.

98-Superior Courts acting under Art. 98 cannot bypass Election
Tribunals set up under mandate of Art. 171 though they can
"correct" errors of non-exercise, excessive exercise or illegal
exercise of jurisdiction by other organs of State-Election disputes
must be settled in accordance with manner ordained by
Legislature, "in special forums" and "within time
specified"-Courts cannot invent a remedy if law has not provided
one-Electoral right not a "civil or common law right".

The Constitution of a State, such as Pakistan, which recognizes

the political concept of distribution of powers between the
various organs of the State, reposes full confidence in them for
the proper discharge of their functions in their respective spheres.
The abdication of that responsibility or its abuse by any one does
not demolish the frontiers that separate one from the other in the
exercise of their powers entrusted to them by the Constitution or
the law. Special forums and Tribunals are set up under the
Constitution and the law with special jurisdiction to finally
determine the issues entrusted to their care. It is the privilege of
the superior courts to correct the errors of non-exercise, excessive
exercise or illegal exercise of jurisdiction by the other organs of
the state, but the former cannot take the place of the latter to
perform their functions and to allow the reliefs which lie within
their exclusive jurisdiction. By-passing of the special tribunals
would be defeating the very constitutional purpose itself. This is
particularly so in the case of Election Tribunals set up under the
mandate of the Constitution. In historical retrospect, the
jurisdiction regarding the composition of supreme Legislatures in
democratic countries inheres in the Legislatures themselves,
including the determination of the status of those who claim to be
their members. This jurisdiction is transferred to other agencies
and Tribunals by way of conferment on them of the Legislature's
own powers to finally settle the electoral disputes to ensure that
the composition of the Legislature is speedily and distinctly
known. These disputes, therefore, must be settled in accordance
with the manner as ordained by the Legislature, in the special
forums created for the purpose and within the time as specified.
The whole tenor of the relevant law forbids the conception that
the sword of Damocles should be allowed to remain hanging on
the heads of the legislators elected to their offices at the pleasure
or fancy of any one who may choose to challenge their status. But
the more relevant question in this context is, if the law has not
provided a remedy for a situation, is it within the powers of the
Courts to invent one . . . It is not for Courts to supply the
omissions in the Acts of the Legislature, particularly so where
they appear to be deliberately intended, even while putting the
most benevolent interpretation on them.

Electoral right has never been treated as an ordinary civil or a

common law right. It is an electoral right which is the creation of
a statute and is subject to the limitations of the statute creating it.
It is not for the Courts to vary, add to, or subtract from, those
limitations.

Where the law provides a particular manner for the doing of a

particular thing, it must be done in that manner or nor at all.

Fazlul Quader Chowdhry v. Muhammad Abdul Haque P L D

1963 S C 486; Sajjad Ali Khan v. Fazal Ilahi and another P L D
1957 Lah. 940; Mian Jamal Shah v. Election Commission P L D
1966 S C 1; Mian Sultan Ali Maghiana v. Nur Hussain P L D
1949 Lah. 301 and Patterson v. Solomon 1962 A E R 21.

(v) Constitution of Pakistan (1962), Art. 98(2)(b)(ii)-Relief in

the nature of quo warranto-Origin in English law, now obsolete
Relief under Art. 98(2)(b)(ii) "particularly" discretionary
Notification by Election Commission of names of persons elected
to National Assembly, complete answer to application for writ of
quo warranto in respect of such persons-Quo warranto where
issued takes effect from date member's seat is declared vacant
Application for quo warranto, "belated" and for a collateral
purpose-Court would be reluctant to issue writ.

The relief as contemplated by Article 98(2)(b)(ii), Constitution of

Pakistan (1962) has its origin in what is known as the writ of quo
warranto in the English Law which is now obsolete and is in its
nature an information laid against a person "who claims or has
usurped an office, franchise or liberty" whereby it is intended "to
enquire by what authority he supports his claim in order that the
right to the office may be determined". A private relator can
maintain an application for a writ of quo warranto and the same
principle has been incorporated in Article 98(2)(b)(ii) of the
Constitution, giving the right to any person to apply to the High
Court requiring a person in the Province within its jurisdiction to
show under what authority of law he claims to hold the office
which he holds or purports to hold. Under the, English law, this
writ was treated not as a writ of right but one of absolute
discretion. Under Article 98 of the Constitution all the reliefs
obtainable under it are purely discretionary and on the principles
governing writs of quo warranto the relief under Article 98(2)(b)
(ii) is particularly so.

Notifications under section 41 of the National and Provincial

Assemblies (Elections) Act (VII of 1964) wherein the Election
Commission had notified names of persons elected to the
Assembly, was a complete answer to an application seeking to
impugn membership of persons by writ of quo warranto.

These person's election to the membership of the Assembly had

not only been notified but they had taken the oath of office under
Article 106 of the Constitution. Their names were borne on the
rolls of the Assembly which were maintained under rule 15 of the
Rules of Procedure framed by the Assembly. No writ of quo
warranto could be issued in these circumstances.

Quo warranto, where issued, takes effect from date when High
Court declares an office to be vacant, and such declaration would
be without effect on the past activity of persons occupying such
office.
High Court would be extremely reluctant to issue a writ of quo
warranto at the instance of a person who has made a belated
attack on the status of a number of members of the National
Assembly collectively, which attack on such person's own
showing was for a collateral purpose of declaring the impugned
Amendment Acts to be void.

(w) Constitution of Pakistan (1962), Art. 110(1)(d)-Validating

provision to "protect" proceedings of Assembly-Application of
provision not confined to proceedings which are otherwise valid
Proceedings for constitutional amendments under Part X1 of
Constitution of Pakistan (1962) are proceedings within purview
of Art. 110(1)(d). ,

Article 110(1)(d), Constitution of Pakistan (1962) is a validat ing

provision which has been incorporated in the Constitution to
protect the participation in the proceedings of the Assembly,
including the voting, by those persons who, although returned to
the Assembly, may subsequently be-unseated on account of a
successful challenge to their election on the basis of their
disqualification or otherwise. Application of this provision is not
confined to proceedings which are otherwise valid.

Federation of Pakistan v. Ali Ahmad Hussain Shah and another P

L D 1955 F C 522 considered.

The express saving provisions of Article 110(l)(d) made in the

Constitution do not leave the matter in controversy as far as the
proceedings of Assembly are concerned.

The contention that the provisions of Part XI (dealing with

constitutional amendments) are not subject to any other
constitutional provision needs introducing the word "only" after
the word "Part" in Article 208, which is not there. There is no
reason to hold that the proceedings taken for a constitutional
amendment in the Assembly are not proceedings of the
Assembly, within the purview of Article 110(1) (d) of the
Constitution.
(x) Constitution of Pakistan (1962), Art. III (1)-Scope of
immunity of proceedings of Legislative Assemblies from scrutiny
of Courts-Immunity not "absolute".

To claim absolute immunity for proceedings of an Assembly was

going a little too far. Proceedings in the Assembly pertaining to
the formative stages of an enactment are protected, including the
division and the voting thereon, and this protection is to be given
its full content, but these proceedings, to enjoy that immunity,
must fall wholly within the privileges of the Assembly, It is
certainly not the legal right or privileges of the Assembly to
outstep its own competence and jurisdiction, as laid down by the
Constitution.

Proceedings which are outside the domain and legal competence

of the National Assembly are' neither within the business of the
House, nor can they be termed as "internal proceeding".

Fazlul Quader Chaudhry v. Shah Nawaz P L D 1966 S C 105 and

Mr. Ahmad Saeed Kirmani P L D 1958 S C (Pak.) 397 ref.

(y) Constitution (Third Amendment) Act (IV of 1965)

Constitution (Amendment) Act (11 of 1966)-Valid laws. The
Third and the Sixth Amendments of the Constitution' of 1962 are
valid laws.

Mahmood Ali Qasuri and Muhammad Ismail for Petitioner.

Sh. Ghias Muhammad, Attorney-General with Syed Nasir-ud-

Din A.-G., Sh. Atta Ullah Sajjad Addl. A.-G. and Sh. Aftab
Hussain, for the Central Government.

Syed Abid Hussain, Ali Ahmad Fazeel and Ahmad Fazal for the
Speaker National Assembly.

Naseem Hassan Shah and M. Ilyas Khan for the Election

Commission.

Raja Muhammad Anwar for Respondent No. 23.

Zia Mirza for Respondent No. 28.

Khalid Farooq for Respondent No: 29.

Khalil-ur-Rehman for Respondent No. 30.

Muhammad Qasim Malik in person and for Respondents Nos. 12,

15 and 31.

Munir Ahmad for Respondent No. 32.

Respondents Nos. 25, 31,34 and 35 also present.

Dates of hearing: 19th to 23rd, 26th to 30th September and 3rd to

5th October 1966.

JUDGMENT

INAMULLAH KHAN, C. J.-I propose to dispose of the petition

of Mr. A. M. K. Leghari and 105 other petitions filed under
Article 98 (2) of the Constitution in which common ques tions of
law and fact have been raised. Mr. Leghari preferred his petition
on the 5th of July 1966. It was admitted by a Division Bench of
this Court on the 7th of July 1966. The rest of the petitions were
filed later, commencing from the 11th of July 1966.

2. The facts necessary for the disposal of these petitions are these.
The petitioners are Government servants. They are being retired
under Article 178 of the Constitution as amended by the Fourth
and Sixth Amendments. The petitioners have challenged the
validity of the Third, Fourth and Sixth Amendments of the
Constitutions under the Third Amendment, passed on the 14th of
June 1965 and which received the assent of the Acting President
on the 15th of June 1965, certain amendments were made in the
Constitution, including clause (2) (a) of Article 103. The
petitioners have challenged the amendment of clause (2) (a) of
Article 103 of the Constitution whereby certain clarification was
made as to the persons who could not be said to hold an office of
profit n the service of Pakistan. It runs as under:
(2) A person is disqualified, from being: elected as, and from
being, a member of an Assembly if

(a) he holds an office of profit in the service of Pakistan (other

than an office specified in the Fifth Schedule).

The portion which has been underlined was introduced by the

Third Amendment. It is argued that some of the members of the
Assembly allegedly were Lambardars, Chairmen of Union
Councils and Union Committees, and reservists in Army and
were allegedly holders of office of profit in the service of
Pakistan and, were therefore disqualified under Article 103 (2) (a)
of the Constitution as it stood prior .to the Third Amendment.
The grounds on which these three constitutional Amendments
have been challenged, as given in the petition of Mr. Leghari, and
repeated in other petitions, are these:

(1) That the said three Amendments were made by 113, 119 and
117 votes, respectively. Of these votes, at least, it is alleged, 33
votes were of persons who were disqualified from being members
of the Assembly under Article 103 (2) (a) of the Constitution on
account of their holding an office of profit in the service of
Pakistan. The pre-requisite of constitutional amendment is that it
should be passed by 2/3rds of the members of the Assembly. The
members of the Assembly being 156, the 2/3rd majority would be
104. If the votes of the 33 persons, on the ground that they were
holding office of profit in the service of Pakistan, are taken out,
the number of votes would be much less than 2/3rds of the
number of the members of the Assembly.

(2) That Article 110 (1) (d) of the Constitution, which lays down
that no proceeding to an Assembly shall be invalid by reason only
that a person who was not entitled to do so was present at or
voted or otherwise participated in the proceedings, does not apply
to Part XI of the Constitution.

(3) That Article 110 (1) (d) of the Constitution only means pate
that an otherwise valid proceeding shall not be rendered invalid
by reason only of the presence and voting of disqua lified persons
and not that the voting of disqualified persons is as good as that
of a qualified person.
It has been further urged, assuming that the three Amend ments
were valid, that the terms and conditions of service of the
petitioners are guaranteed under Art. 234 of the Constitution, that
the petitioners could not be retired in the "public interest", and
that the action of the competent authority to retire or to propose to
retire the petitioners was mala fide. Mr. Leghari, and so have
most of the other petitioners, prayed for the following reliefs

(a) That the Third Amendment be declared to be without lawful

authority, void and of no effect;

(b) that the Sixth Amendment be declared to be without lawful

authority, void and of no effect;

(c) that the acts done and proceedings taken in respect of the
petitioner, as explained in paragraph 3 supra (including the
reference to Public Service Commission) be declared to have
been done and taken without lawful authority and to be of no
legal effect;

(d) that the respondent be directed to refrain from taking any

action in respect of the petitioner under the Sixth Amendment;
and

(e) that the action taken in respect of the petitioner under the
Sixth Amendment be declared to be a fraud on the Constitution,
not in public interest and as such in any case without lawful
authority, mala fide, void and of no legal effect.

3. The petition came up for hearing before a Division Bench of

this Court on the 7th of July 1966. The relevant portion of the
admitting note reads as under:-

"The following among other questions arise out of this petition:-

(1) Are Lambardars, Chairmen of Union Committees,

Vice-Presidents of Municipal Committees and Vice-Presidents of
District Councils holders of office of profit in the service of
Pakistan?
(2) If so, were the holders of such offices not disqualified from
being elected as, and from being, members of the National
Assembly because of Article 103 (2) (a) of the Constitution as it
stood before it was awarded by the Constitution (Third
Amendment) Act, 1965?

(3) Can a person suffering from such a disqualification be 4

Member for the pruposes of Article 209?

(4) Could a Bill to amend the Constitution be resented to the

President for assent if. it was not passed by the votes of at least 104
members of the National Assembly not so
qualified?

(5) Is the Constitution (Third Amendment) Act, 1965, good law in

spite of the fact that it was not presented for assent to the President in
accordance with the provisions of Article 209 ?

(6) If not, is the Constitution (Sixth Amendment) Act 1965, good law
in spite of the fact that it suffered from the same defect?

(7) Is Article 110 (d) applicable to bills for amending the

Constitution ?

(8) If so, does it control the provisions of Articles 208 and 209 ?

Admit. Notice."

The Bench recommended, considering the importance as the question

involved, that the same should be heard by a larger Bench. The
Bench, in the meantime, ordered the respondent (in the petition filed
on the 5th of July 1966, only Government of Pakistan was the
respondent) not to take any action against Mr. Leghari.

4. The learned Advocates for the parties addressed us at great length,

particularly on the question whether Lambardars, Chairmen of Union
Committees and Reservists can be said to be holders of offices of
profit in the service of Pakistan within the meaning of Article 103 (2)
(a) of the Constitution. We did not limit the learned Advocates for
the parties to the points mentioned in the admitting order. The
address urged may be formulated as under:
(1) Whether the question that respondents Nos. 4 to 38 (hereinafter to
be referred to as the respondents) are disqualified from being elected
as, or continuing to be, members of the Assembly is an "election
dispute" within the meaning of Article 171 of the Constitution? If so,
can the petitioners challenge the validity of the respondents' election,
or their continuing to remain as members of the Assembly under
Article 98 of the Constitution?

(2) Whether the validity of the proceedings of the Assembly resulting

in. the Third, Fourth and Sixth Amendments can be questioned in
Court?

(3) Whether the authentication of the Third, Fourth and Sixth

Amendments by the Speaker can be challenged in Court?

(4) Whether the proceedings of the Assembly can be held to be

invalid by reason only that certain persons were not entitled to vote
have voted?

(5) Whether the action of the competent authorities under the Sixth
Amendment is male fide?

(6) Whether the action of the competent authorities under A. M.

Khan the Sixth Amendment is not in public interest and is Leghari
premature?

(7) Whether the respondents are disqualified to be members Pak, of

the Assembly.

5. In order to appreciate the first point it would be useful to

reproduce Article 171 of the Constitution, which reads as under:-

"(1) Subject to clause (2) of this Article, provision may be made by

law-

(a) for disputes arising in connection with the counting of votes at an

election or referendum required to be held under this Constitution to
be finally determined by the Commissioner or an Election
Commission; and
(b) for other disputes arising in connection with such an election or
referendum to be finally determined by a tribunal established for that
purpose, and no dispute arising in connection with such an election
or referendum shall be decided otherwise than under such a law, and
the validity of such an election or referendum shall not be called in
question except in accordance with such a law.

(2) When a person has been declared to have been elected as

President, the validity of the election shall not be called in question
in any manner before or by any Court or authority whatsoever.

(3) The validity of anything done by the Commissioner under Article

160, 161 or 162 shall not be called in question in any manner before
or by any Court or authority whatsoever.

On an analysis of Article 171 it would appear that the election of the

President and the delimitation of the constituencies by the Chief
-Election Commissioner cannot, in any manner, be questioned.
Dispute regarding the counting of votes at an election or referendum,
however, are determinable by the Chief Election Commissioner or an
Election Commission in accordance with law that may be made for
the purpose. Other disputes in connection with election or
referendum are determinable only by a tribunal. Such determinations
are final, and no dispute arising in connection with an election or
referendum can be decided and no election or referendum can be
called in question except in accordance with the law governing such
disputes. In exercise of the power conferred by clause (1) of Article
171 the Central Legislature as enacted the National and Provincial
Assemblies (Elections) Act 1964, (hereinafter to be referred to as the
1964, Act), the Presidential Election Act, 1964, and the Referendum
Act, 1964. Prima facie, under Article 171 of the Constitution the
election of the respondent can be questioned only in accordance with
the 1964 Act.

6. The question as to whether some of the members were disqualified

from being elected as, and from being, members of the National
Assembly on the ground that they held office of profit in the service
of Pakistan is a dispute arising in connection with such an. election.
7. Under section 57 of the 1964 Act subject to the provisions of
section 53, any candidate may make an election petition challenging
an election for which he was a candidate of one or more of the
grounds mentioned in section 72. The relevant portion of section 72
reads as under:

"(1) The Tribunal shall declare the election of the returned candidate
to be void if it is satisfied that

(a) the nomination of the returned candidate was invalid; or

(b) the returned candidate was not, on the nomination day, qualified
for, or was disqualified from, being elected to the seat in question."

It would appear from section 72 of the 1964 Act that the question of
the alleged disqualification of some of the members on the ground
that they held office of profit in the service of Pakistan was a dispute
arising in connection with an election held under the Constitution.
The question is as to whether the petitioners can raise the question
under Article 98 of the Constitution that the respondents were
disqualified from being elected as, and from being, members of the
National Assembly.

8. The contention of Mr. Mahmud Ali Qasuri and the other

Advocates who adopted his arguments and addressed us, is that
Article 171 of the Constitution does not operate as a bar to challenge
the election of the respondents under Article 98 of the Constitution
for three reasons, namely, (1) that the petitioners could not challenge
the election of the respondents under the 1964 Act, (2) that Article
171 of the Constitution does not make provision for post-election
disputes, and (3) that the Courts in Pakistan have interfered with
election disputes under Article 98.

9. I may be excused for avoiding to make a reference to Indian

decisions. It is a matter of principle involving self-respect. I have not
come across any Judge in India referring to our judgments. Morever,
the important questions involved in this petition were resolved by
their Lordships of the Supreme Court in two cases, namely, that of
Mian Jamal Shah v. Election Commission (P L D 1966 S C 1) and
Pakistan v. Ahmad Saeed Kirmani (P L D 1958 S C 397). It is
impossible for me to improve or add anything, if I may say with
profound respect, to the matter set forth in these two cases on which
the enunciation of principles of law is based. I mention this as an
excuse for copious quotations from these judgments in order to make
out my point.

10. The well-known case of Mian Jamal Shah, if I may say so with
profound respect, is of great assistance and guidance in determining
the first question, but is not a direct authority on the issue before me,
the issue being that "no dispute arising in connection with such an
election or referendum shall be decided otherwise than under such a
law, and the validity of such an election or referendum shall not be
called in question except in accordance with such a law." In Jamal
Shah's case the question was as to the finality attached to the decision
of the learned Member of the Commission. After a detailed
examination of the various questions arising in that case, it was held
that under Article 171(1) of the Constitution the power of final
determination by the authorities specified therein must be allowed to
prevail as against the general power of correction given to the High
Courts under Article 98 of the Constitution.

11. The observations made in the case of Mian Jamal Shah by my

Lord Cornelius, C. J., are of great significance and importance in
considering the true import of the provisions specified in Article 171
that "no dispute arising in connection with such an election or
referendum shall be decided otherwise than under such a law and the
validity of such an election or referendum shall not be called in
question except in accordance with such a law". His Lordship
Cornelius, C. J., in order to appreciate whether the jurisdiction of
Courts was altogether excluded, made wide examination of the whole
nature of the history of the law on the subject to which the provision
related, of earlier occasions when the sovereign prerogative was
sought to be exercised in relation to determinations by specified
election tribunals, and of the subject of special jurisdiction generally,
before arriving at a full understanding of this clearly excluded
jurisdiction, and observed as under:--

"It has already been mentioned that in the history of the

sub-continent and since 1947, of Pakistan, with the exception of a
short period between 1956, and 1958, when the judgment in
Muhammad Saeed's case was delivered by the Supreme Court
reversing the decision of an Election Tribunal, the position has
throughout been that election disputes had been totally excluded
from the jurisdiction of the High Courts. The whole law re lating to
the conduct of elections and in particular to ballotting, i.e.,
discrimination between valid and invalid votes, as well as in relation
to corrupt practices and other illegalities such as could vitiate an
election or entail the loss of franchise by individuals has remained
throughout sealed territory qua the jurisdiction of the High Court."

While considering the history of Parliamentary election disputes in

England, his Lordship observed as under:

"I say this, not with reference to anything arising in this case directly,
but for the reason that were the Parliamentary and judicial traditions
are not indigenous, nor of any long standing, but where the
Constitution expressly provides for differentiation of functions
between the three great organs of .the State, it is a major
consideration of great weight that its provisions should not be
interpreted in a manner which enables one of those organs to
interfere directly with matters which the Constitution has placed
exclusively within the authority of another organ for `final
determination'. In direct contract to the provision now obtaining in
England that election disputes are referred to the High Court for
determination under the special provisions referred to above, in our
Constitution, Article 171 requires that matters should go before
specified authorities and Tribunals for `final determination'. These
authorities and Tribunals exercise in the relevant respect jurisdiction
which does not and never did belong to the High Court, but is an
essential part of Parliamentary jurisdiction, that has been by law
entrusted to specified authorities, to operate."

Considering the scope of Article 98 of the Constitution viz-a-viz

Article 171, the learned Chief Justice observed as under:-

"Article 98 is a wholly new provision and confers a new jurisdiction.

To regard it as a continuation of the power conferred upon the
Supreme Court and the High Courts by Article 2 (4) of the Laws
(Continuance in Force) Order, 1958, to issue writs of habe6us
corpus, mandamus, prohibition, quo warranto and certiorari, is in my
view an error. The Constitu tion of 1956 gave similar power to the
Supreme Court and the High Courts by expression in more than one
Article, but it is well-recognised that by the abrogation of the
Constitution, and the introduction of Martial Law, a wholly new
source of plenary authority came into existence and it was from this
new source that the -new power in Article 2 (4) of the Order of 1958
was derived. Again, when the Martial Law was brought to an end,
the Laws (Continuance in Force) Order was revoked with effect from
the date of commencement of the Constitution of 1962 which itself
was given to the country by the President 'in exercise of the mandate
given to me on the Fourteenth day of February One thousand nine
hundred and sixty, by the people of Pakistan'. This again was a
wholly new source of plenary authority, and it was from this source
that simultaneously the High Courts were given jurisdiction under
Article 98, and on the other hand, the final determination of election
disputes was placed within the exclusive jurisdiction of specified
authorities by Article 171. With respect to the view of the Full
Bench, for which justification may perhaps be found from expression
in a great many judgments delivered by the Courts in England, where
jurisdiction comparable to and yet significantly different from that
which is now exercised in Pakistan under Article 98, was derived
from the ancient prerogative of the King, it must be observed that
any assumption that the power under Article 98 is something inherent
in the High Court, something of earlier origin than the Constitution
of 1962, is one that cannot be supported. The power given by Article
98 comes as a matter of first conferment by the Constitution and it
cannot be placed on any higher footing than the authority which can
be claimed for Article 171 in the same Constitution. It is to be noted
with care that Article 171, subsection (1) is not made expressly
'subject to this Constitution', arid that Article 98 confers power on the
High Court 'subject to the Constitution'. Consequently, the terms of
Article 171 (1) are to be construed and given their fullest meaning
irrespective of anything contained in any other Article of the
Constitution.

Proceeding on that basis, it is plain that Article 171 requires, with

respect to election disputes, that their determination should be in
accordance with the law specially made for that purpose, and not
determination only, but final determination, that is to say,
determination once for all. To emphasise and place beyond doubt
that the jurisdiction thus being created was exclusive in an absolute
sense, words were- added to Article 171 which have already been
quoted, and which produce the Effect A. M. Khan that no dispute
arising out of an election shall -be decided Leghari otherwise than
under the law specially made for the purpose in Govt. of accordance
with the subsection, nor shall the validity of such an Pak. election be
called in question except in accordance with the provisions of the
aforesaid law, in this case the National and Provincial Assemblies
(Elections) Act of 1964. It must be remembered that a requirement of
finality of determination contained in the Constitution is to be placed
on a wholly different and certainly at a much higher level than
provisions in sub-constitutional statutes giving finality to the
determination of Tribunals constituted thereunder."

Mr. Lord S. A. Rahman, J. agreed with the conclusion of the learned

Chief Justice, with this modification that if in a particular case, it is
found either that an authority functioning under section 53 of the
1964, Act or an Election Tribunal appointed under that Act has either
failed to exercise jurisdiction vested in it or clearly exceeded that
jurisdiction or if the order in question is found to be tainted with
mala fides the aggrieved party may be entitled to invoke the
provisions of Article 98 of the Constitution to obtain appropriate
relief. 'My Lord Fazle Akbar, J. observed as under:-

"As pointed out by this Court in the case Imtiaz Ahmad v. Ghulam
Ali and others (P L D 1963 S G 382) actions of the Election
Authorities can always be called in question if they are characterized
as being done mala fide or in bad faith."

His Lordship Kaikius, J. observed that Article 171 does not destroy
the jurisdiction of the High Court under Article 98. Article 171
provides for the decisions of election disputes in a certain manner
and the High Court can always act under Article 98 in enforcement
of Article 171 and of the law enacted by virtue of that Article. If the
learned Member (or the Election Tribunal) fails to exercise
jurisdiction, or exceeds jurisdiction, or acts illegally or with material
irregularity in its exercise, the High Court can pass an appropriate
order. His Lordship Mr. Yaqub Ali J. observed:

"Jurisdiction conferred by Article 98 on a High Court is `subject to

this Constitution' namely subject to the bar contained in more than
one Article such as Article 8(2) which provides that the validity of an
action or of a law shall not be called in question on the ground that it
is not in accordance with the principles of policy. Article 116(3)
provides that except in relation to pro ceedings mentioned in clause
(2) no process whatever shall issue from any Court or Tribunal
against the President or a Governor in a personal capacity or
otherwise while he is in office. Article 117 (1) lays down that the
President, Governor and any Minister except in respect of anything
done or not done by him . in contravention of the law will not be
answerable to any Court or Tribunal for the exercise of the powers or
the performance of the duties of his office or for any act done or
purported to be done by him in exercise of these powers or in
performance of these duties. Article 133 (2) states that a law shall not
be called in question on the ground that the Legislature by which it
was made had no power to make the law. And, lastly, there is Article
171 which, as seen above, confers finality on the determination of the
authorities designated in it and provides an absolute bar to ringing
into question the, election of a person to the office' of the President
and the formation of Electoral Units by the Commissioner before any
Court or authority whatsoever. This compares unfavourably with the
unabridged jurisdiction conferred by Article 170 of the 1956
Constitution."

His Lordship further observed that all decisions given by Courts

during the period of 1956, Constitution must be distinguished on that
ground and that High Court's jurisdiction under Article 98 is limited
in its ambit and finality is attached by Article 171 to the
determination of the election authorities in 1964 Act.

12. The observations made by my Lords S. A. Rahman, Fazle-Akbar

and Kaikaus, JJ. do not in any way affect the question before me. In
the present case an abstract proposition of law, as specified in Article
171, namely, that "no dispute arising in connection with such an
election or referendum shall be decided otherwise than under such a
law, and the validity of such an election or referendum shall not be
called in question except in accordance with such a law" has to be
considered.

13. The learned Advocates for the petitioners contended that Article
171 of the Constitution is limited in its scope to the contesting parties
in an election. They submitted that under sections 53 and 57 of the
1964 Act an appeal could be filed by a contesting candidate and that
an election petition could only be filed by a candidate to the election
on the grounds mentioned in section 72 of that Act. It is true, there is
no provision in the 1964 Act or under Article 171 of the Constitution
making provision in favour of a person other than a candidate to
challenge an election of a returned candidate. The question is
whether this can be a valid ground for invoking the provisions of
Article 98 which is "subject to the Constitution", including Article
171. If the intention of the framers of the Constitution was to confine
the challenge of an election to the contesting candidates, the Court
cannot extend it in favour of others. The language under examination
is clear and admits of no exception. It lays down, in the first place, in
mandatory terms that no dispute arising in connection with such an
election (election under the Constitution) or referendum shall be
decided otherwise than under such a law (1964 Act). In. the second
place, it ordains that the validity of such an election or referendum
shall not be called in question in any manner except in accordance
with such a law. I would at the cost of repetition underline the words
of Art. 171 which completely negative the argument of the learned
Advocates for the petitioners. These are:-

"The validity of such an election or referendum shall not be called in

question except in accordance with such a law." (in this case 1964,
Act).

14. If the Constitution and 1964 Act have not conferred any right on
the petitioners, not being contesting candidates to the they cannot
claim one under Article 98 of the Constitution. In this connection it
may be mentioned that the right to contest an election of a member
elected is a statutory right and not a civil right. If the Statute does not
confer any right on the general public, the Courts of law cannot grant
one. "It is but a corollary to the general rule of literal construction
that nothing is to be added to or to be taken from a Statute, unless
there are similar adequate grounds to justify the inference that the
Legislature intended something which it omitted to express. It is a
strong thing to read into an Act of Parliament words which are not
there, and, in the absence of clear necessity, it is a wrong thing to do.
We are not entitled to read words into an Act of Parliament unless
clear reason for it is to be found within the four corners of the Act
itself." (Cf. Maxwell on Interpretation of Statutes, Eleventh Edition,
p. 12). "Where the language of an Act is clear and explicit, we must
give effect to it, whatever may be the consequences, for in that case
the words of the statute speak the intention of the Legislature".
(Craies on Statute Law, Sixth Edition, p. 66). "Casus omissus not to
be created or supplied." "A second consequence of this rule is that a
statute may not be extended to meet a case for which provision has
clearly and undoubtedly not been made." (ibid, p. 70).

15. Finally, the observations made by my Lord the Chief Justice

settle the controversy against the petitioners. He observed as under

"Article 171 is not expressed, as are so many other Articles, to be

'subject to the Constitution. By contrast, the power given to the High
Courts by Article 98 is to be exercised subject to the Constitution'.
Article 171 enables provision to be made by law for decision of
disputes arising out of elections. The provision is made in two parts,
viz., (i) where a dispute arises in connection with the counting of
votes, the law may provide for such dispute 'to be finally determined
by the Commissioner or an Election Commission, and (ii) for all
other disputes, provision may be made by law that they should be
finally determined by a Tribunal established for that purpose'. The
exclusive jurisdiction so given by law is protected by the following
mandatory injunction contained in Article 171, namely, that 'no
dispute in connection with such election-shall be decided otherwise
than under such a law' and 'the validity of such an election-shall not
be called in question except in accordance with such a law. The
relevant law made on the point is the National and Provincial
Assemblies (Elections) Act, 1964, Chapter VI of which deals with
election disputes. Section 52 repeats the above-mentioned bar to
jurisdiction by providing that election disputes shall be dealt with
either under section 53 (relating to the count of votes) or under
section 57 (relating to all other matters). Section 52 also contains a
provision to the effect that no question that can be raised in an appeal
under section 53-shall be raised by an election petition 'or before any
Court or authority whatsoever' and further, no question that can be
raised by an election petition shall be raised `before any such Court
or Authority'."

The above observations conclude the matter and I would hold that
the only method by which an election dispute can be resolved is
under the 1964 Act.

16. There is no force in the contention that because Article 171 of the
Constitution does not make provision for post-election disputes, the
provisions of Article 98 of the Constitution are attracted. In the first
place, in the instant case, the petitioners have challenged the election
of the respondents on the ground that they suffered from a
disqualification inasmuch as they held "office of profit in the service
of Pakistan". The respondents are said to have suffered from this
disqualification when they contested the elections. The dispute did
exist even before their election. The learned Advocates for the
petitioners in this connection relied on Article 103 of the
Constitution; the relevant portion reads as under:-

"(2) A person is disqualified from being elected as and from being, a

member of an Assembly if-

(a) he holds an office of profit in the service of Pakistan.

It is contended that where a person continues to be a member of an

Assembly and is disqualified on the ground that he holds an office of
profit in the service of Pakistan, no provision is made in 1964 Act to
contest his election. There is not much force in this contention. Only
that person can continue to suffer from the disqualification who held
the "office of profit in the service of Pakistan" at the time of his
election. If he was already suffering from the said disqualification at
the time of his election, this could be challenged under section 72 of
the 1964 Act. If a person had become disqualified after his election,
the same could be challenged, under sub-clause (2) of Article 104 of
the Constitution, which lays down that "if any question arises
whether a member of an Assembly has, after his election, become
disqualified from being a member of the Assembly, the Speaker of
the Assembly shall refer the question to the Chief Election
Commissioner and if the Chief Election Commissioner is of the
opinion that the member has become disqualified, the member shall
cease to be a member." Moreover, even if no right was created under
the 1964 Act, it meant-that the Legislature did not intend to do so and
the same could not be conferred under Article 98 of the Constitution.
Lastly, it was submitted that the petitioners could have recourse to
Article 98 of the Constitution as the Courts in Pakistan have
interfered with election disputes. It is true that Courts in Pakistan
have interfered with election disputes under certain circumstances. It
is not necessary to encumber the order by reciting those cases. It is
sufficient to state that in those cases the Courts found that the
authorities entrusted with election disputes had either acted without
jurisdiction, in excess of jurisdiction, or mala fide. In the present
case, the question before us is not to scrutinize any decision of the
authorities mentioned in the 1964 Act in the light of the principles
laid down negative.

17. I propose to dispose of points Nos. 2, 3 and 4 together. They

relate to the validity of the Constitutional Amendments, namely,
Third, Fourth and Sixth Amendments of the Constitution. They have
been challenged on the ground that 33 members, who voted for the
Amendments, were disqualified under sub-clause (2)(a) of Article
103 of the Constitution inasmuch as they held "office of profit in the
service of Pakistan" and that if their votes are excluded the requisite
number of the members required for Constitutional Amendments,
under Article 209, namely, 104 members, cannot be said to have
voted for the said Amendments. The learned Attorney-General, the
learned Advocate-General, and Dr. Nasim Hasan Shah, on behalf of
the respondents, relied, in support of the validity of these
Amendments, on Article 110(d) and Article 111(1) and (2) of the
Constitution. For the sake of convenience, I would consider their
submissions as regards Article 111(1) and (2) first.

18. The relevant portion of-Article 111(1) of the Constitution reads

as under:-

"The validity of any proceedings in an Assembly shall not be

questioned in any Court."

There were similar provisions in the Government of India Act, 1935.

Section 41 of this Act read as under:--

"Courts not to inquire into proceedings of the Legislature".

This debarred the Courts from inquiring into the proceedings of the
Federal Legislature. A similar provision was contained in respect of
Provincial Assemblies, in section 87 of the same Act, which read as
under:-

"The validity of any proceedings in a Provincial Legislature shall not

be called m question on the ground of any alleged irregularity of
procedure."
In the old Constitution of 1956 (hereinafter called the 1956
Constitution) a similar protection was given under Article 56(1),
which read as under:-

"(1) The validity of any proceedings in the National Assembly shall

not be questioned in any Court."

Article 89(1) read as under:

(1) The validity of any proceedings in a Provincial Assemble

shall not be questioned in any Court:
(2)
Similar provision was made in section 4(3) of the Constituent
Assembly (Proceedings and Privileges) Act, 1955, (hereinafter to be
referred to as the Act of 1955), which reads as under:-

"The validity of any proceedings in the Assembly shall not be called

in question on the ground of any alleged irregularity procedure."

The first question that requires consideration is as to whether

"voting" is part of the proceedings in the Assembly. In this
connection, reference may be made to the Rules of Procedure made
by the President under Article 231 of the Constitution, which
provides as under:-

"Until rules of procedure are made by any Assembly under clause (1)
of Article 110, the procedure of the Assembly shall be regulated by
rules of procedure made-

(a) in the case of the National Assembly-by the President."

The President was pleased to make rules of procedure of the National

Assembly on the 5th of June 1962. Rule 152, which is relevant for
the purposes of this case, reads as under:-

(1) The votes of Members on, any question put by the Speaker may
be taken 'by voices in the first instance. If the opinion of the Speaker
as to the decision of the question is callenged, he shall direct that the
votes be taken by division in the manner set out in Schedule It If, in
the opinion of the Speaker, the demand for the division is an abuse of
these Rules he may ask the Members, who are for `Ayes' and those
for `Noes' respectively to rise in their places and on a count being
taken he shall declare the determination of the Assembly. In such a
case, the names of the voters shall not be recorded.

(2) The result of voting by a division shall be announced by the

Speaker and shall not be challenged

(3) A Member may not vote on any question in which he has a direct
pecuniary interest. If he votes on such a question, the vote shall, on a
substantive motion carried by the Assembly, be disallowed.

Explanation.-The interest contemplated in this Rule shall be direct

and personal and not remote or general."

The above rule does not leave any doubt that the voting by the
member is a part of the procedure or proceedings of the Assembly.

19. The meaning of the term "proceedings in Parliament" is given by

Erskine May's Parliamentary Practice, 17th Edition, page 62, as
under:-

"The primary meaning, as a technical parliamentary term, of

`proceedings' (which it had at least as early as the seventeenth
century) is some formal action, usually a decision, taken by the
House in its collective capacity. This is naturally extended to the
forms of business in which the House takes action, and the whole
process, the principal part of which is debate, by which it reaches a
decision."

At page 171 of the same book, "internal proceedings" is described as

under:-

"As a result of Stockdale v. Hansard 3 State Tr. (n s) p. 858 the

maxim of the law, found in Coke and Blackstone (and according to
the letter, the `original' of the whole of the law and custom of
Parliament)-`that whatever matter arises concerning either House of
Parliament ought to be examined, discussed and adjudged in that
House to which it relates and not elsewhere,' become practically
restricted to matters solely concerning the internal proceedings of
either House."
I have no doubt that the voting by the members relates to the g
internal proceedings of the House. As I intend to strongly rely on the
observations made by my Lord Cornelius, J., as he then was, in the
case of Ahmad Saeed Kirmani, which arose under the 1956
Constitution, it would be necessary to show that the position of the
National Assembly of Pakistan under the present Constitution is the
same as the one under 1956 Constitution. That this is so can be seen
with reference to the observations of my Lori Cornelius, C. J., in the
case of Badrul Haq (P L D 1963 S C 704). They run as under:-

"Dr. Nasim Hasan Shah enumerated the differences between the

Legislatures contemplated under the 1956 Constitution and those
which have been brought into existence under the 1962 Constitution
and it cannot be denied that these are considerable. But at the same
time, lie was unable to deny that the place given to the National
Assembly in the Constitutional structure by the two Constitutions is
exactly the same. In the 1956 Constitution, Article 43 provided that
`there shall be a Parliament of Pakistan consisting of the President
and one house to be known as the National Assembly.' The parallel
provision in the 1962 Constitution .is in practically the same terms,
for it reads-

There shall be a Central Legislature of Pakistan which shall consist

of the President and one house to be known as the National
Assembly of Pakistan.

Each of the two National Assemblies is one composed of

representatives of the people and together with the President is to
constitute the Central Legislature or the Parliament of Pakistan. It is
true that the mode of election to the National Assembly has been
changed by the Constitution of 1962 and the number of its members
has been halved. It is true that its powers are different from those of
the 1956 National Assembly since they are adapted to the working of
a Presidential system of Government. But these circumstances do not
avail to deprive it of the character of being a special body of men
returned by the electors to make laws for the entire country subject to
the assent of the President."

20. There is a direct authority of the Supreme Court on the question

under examination. In Ahmad Saeed Kirmani's case, a member of the
Provincial Assembly by a writ petition challenged the election of its
Speaker and the proceedings relating to the election. The provision of
Article 89 of the 1956 Constitution, which is similar to Article 111(1)
of the present Constitution, came for examination. The question for
considera tion was that "the validity of any proceedings in a
Provincial Assembly shall not be questioned in any Court." My Lord
Cornelius, J., as he then was, while considering Article 89 of the
1956 Constitution, observed as under:-

"The Article specifies a number of other privileges which it is not

necessary to mention here in detail. It will be sufficient to say that so
far as they go, they are precisely in line with the development of 'the
same privileges in relation to the British Parliament. Thus, subsection
(4) of Article 89 protects the publication of Parliamentary Papers by
or under the authority of a Provincial Assembly, which was the
position reached in England as a result of the actions against Hansard
as far back as 1840. I consider that in a similar way, the protection
granted to proceedings in a Provincial Assembly against interference
by the Courts is to be understood and given its full content by
reference to the historical development of that right, through some
six centuries of contention, in relation to the House of Commons, I
feel no hesitation in thinking that this provision was introduced into
the Constitution with a full knowledge of the extent to which the
House of Commons had succeeded in establishing , its privilege
against the jurisdiction of the Courts, in relation to its own internal
proceedings."

While considering rule 63 of the West Punjab Legislative Assembly

Rules, which is also similar to sub-rule (2) of rule 151 of the Rules
and Procedure of the National Assembly of Pakistan, which runs as
under:-

"The result of voting by a division shall be announced by the Speaker

and shall not be challenged,"

his Lordship observed as under:-

"In the view which I have taken, this rule which has statutory force,
being made under power conferred by the Constitution, must be
given the force of a law declaring that the announcement of the result
of voting by division once made by the Speaker is not to be
challenged in any Court of law. It is of course amenable to
correction, for instance, if a Member votes who has a direct
pecuniary interest in the question, his vote may be disallowed on a
substantive motion carried by the Assembly subsequently."

Cornelius, J., while considering the question whether the so-called

proceedings of the Assembly could be described as proceedings,
within the meaning of Article 89, because they were vitiated by
coercion, duress and mala fides, observed as under:-

"The means of correction which are contemplated by a Constitution

providing for a form of parliamentary Government are, in `matters of
this kind involving coercion or mala fides, exclusively of a political
kind. The very high authority vested in a Provincial Legislative
Assembly which can make and unmake law is to be exercised by the
method provided in Article 88 of the Constitution, namely, by the
method of decision 'to be taken by a majority of the Members present
and voting.' It appears to me to be unconceivable that a decision so
taken, where the division of Members of the House is on party lines,
can be subjected to examination and either confirmation or rejection
by 'the Courts, without one or two extreme dangers arising to the
integrity of the very fabric upon which the Constitution is based,"

The observation further runs as under:-

I hope I can without disrespect that not only in this country, but in
every country where Parliamentary Government is in operation, not
only in past ages when such actions, which good man and true might
have judged unconscienable, could be said to be `begotten by the
iniquity of the time', but even in the present day it is impossible to
expect that decisions taken in an Assembly shall always be based
upon pure opinions, founded exclusively on the merits of any
proposition that is brought forward, with reference only to each
Member's conception of what constitutes the public good, aided by
advice contained in noble speeches delivered on both sides. It is
probably more true to say that such a condition is to be expected only
in a small number of cases, but on the contrary by and large, the
methods which are resorted to in order to obtain a decision by an
Assembly, particularly where the balance between two parties in high
contention with each other is a very close one, will often be founded
to be unsuitable for exposure in the light of day: In so saying, I say
no more than that the general out look and temper, in relation to
things moral as well as material, which is evinced by Members of an
Assembly, will ordinarily govern the methods by which that
Assembly is brought to the point of taking its decisions."

21. The learned Advocates for the petitioners contended, in the first
place, that the observations made in Ahmad Saeed Kirmani's case
should not be taken to be guiding principle in considering the
provisions of Article 111 of the Constitution. In this connection they
relied on a number of cases. The leading case is Quinn v. Leathem
(1901 A C 495). It was held in that case that every judgment must be
read as applicable to the particular facts proved or assumed to be
proved. It was held in Attorney General of Canada v.
Attorney-General of Ontario (A I R 1932 P C 36), that decided cases
effectively construe the words of an Act of Parliament and establish,
principles and rules whereby its scope and effect may be interpreted.
But there is always a danger that in the course of that process the
terms of the statute may come to be unduly extended and attention
may be diverted from what has been enacted to what has been
judicially said about the enactment. In Mst. Hamida Bano v. Ashiq
Hussain (P L D 1963 S C 109), it was observed that everything said
by a Court in a judgment, and more particularly in a judgment in a
criminal case, must be understood with great particularity as having
been said with reference to the facts of that particular case. Lastly,
reliance was placed on Hari Bakhsh v. Babu Lai (AIR 1924 P C
126), wherein it was observed that to understand and apply a decision
of the Board or of any Court it is necessary to see what are the facts
of the case in which the decision was given and what was the point
which had to be decided.

22. The proposition enunciated in the decisions cited by the learned

Advocates cannot be doubted. The fact remains that their Lordships
of the Supreme Court considered the constitutional provision that the
"validity of any proceedings in a Provincial Assembly shall not be
questioned in any Court." In great detail and in all its varied aspects,
if I may say so with great respect, in respect of the powers conferred
on Courts by Article 170 of the 1956 Constitution. Whatever
principle has. been laid down in Ahmad Saeed Kirmani's case is of
high authority and being the law declared is binding on this Court. In
that case the facts were of little importance in considering the
provisions of Article 89, of the 1956 Constitution. The only question
that was to be considered was as to whether the result of the division
for the election of the Speaker was "the proceedings of an Assembly"
and thus protected under Article 89 of the 1956 Constitution. In the
present case the question is as to whether the voting by some of the
members of the National Assembly, who participated in the three
Constitutional Amendments, is "proceedings of the Assembly" and
therefore, protected under Article 111(1) of the Constitution. I am
clearly of the view that the principles laid down in Ahmad Saeed
Kirmani's case are applicable on all fours to the present case.

23. In the second place it was contended that some of the members of
the National Assembly who participated in these Constitutional
Amendments being unqualified, the proceedings if not allowed to be
challenged in Court would be against the principles of equity and
good conscience. In this connection Mr. Qasuri relied on the Debates
of the National Assembly at the time of the Third Amendment. He
submitted that the Law Minister was in great hurry to have the
Amendment carried out. He proposed for the suspension of some of
the Rules of Procedure of the National Assembly in order to rush
through the Amendment. Some of the members had pointed out that
there were some members who were disqualified. These objections
were ignored. There is not much force in this contention. In this
connection I would reproduce a few lines from the judgment in
4hmad Saeed Kirmani's case. They run as under:

"It seems to me that to invoke principles of justice equity and good

conscience as known to the Courts and as applied by the Courts to
the resolution of matters lying between individuals or between
individual subjects and the State, into the formation of majorities for
the purposes of a decision by an Assembly, is to ignore the realities
of the matter and involves a risk of grave injury to the compromise,
represented by the Constitution, between the great powers, whose
equilibrium inter se is the only guarantee of the freedom and well
being of the country. All the evils to which the learned Judge has
referred in the passage cited above have appeared from time to time
in the functioning of popular Assemblies all over the world."

It was next contended that some of the members were interested in

the Third Amendment and therefore, were disqualified to vote. The
members of the Assembly could raise a substantive motion to
challenge the vote of the members who were alleged to be interested
in the Amendment inasmuch as they were alleged to be holders of
"office of profit in the service of Pakistan."

Sub-rule (3) of rule 152 of the Rules of Procedure of the National

Assembly of Pakistan reads as under;-

"A member may not vote on any question in which he has a direct
pecuniary interest, if he votes on such a question, the Pa vote shall,
on a substantive motion carried by the Assembly, be disallowed." It
is not. necessary to go into the question whether some of the
members who were alleged to be holders of "office of profit in the
service of Pakistan" had direct and personal interest in the
Amendment. It is sufficient to say that no substantive motion was
moved-much less carried-in the Assembly.

25. It is not necessary to go into the question as to whether the

authentication of the Third, Fourth and Sixth Amendments of the
Constitution by the Speaker can be challenged in Court in view of
my finding that the validity of the proceedings in the Assembly
cannot be challenged in Court. I would, however, briefly dispose of
this contention. Sub-clause (2) of Article ,111 of the Constitution
reads as under:

(2) An officer or member of an Assembly in whom powers are vested

for the regulation of procedure, the conduct of business or the
maintenance of order in the Assembly shall not, in relation to the
exercise by him of those powers, be subject to the jurisdiction of any
Court."

Under Article 108 of the Constitution, the Assembly has to choose a

Speaker and two Deputy Speakers. One of the functions of the
Speaker is given in rule 71 of the Rules of Procedure of the National
Assembly of Pakistan, which reads as under:

"When a Bill is passed by the Assembly, an authenticated copy

thereof, signed by the Speaker, shall be transmitted to the President's
Secretariat by the Secretary, for action under Article 27 of the
Constitution." Rule 72 thereof reads as under--

"When a Bill has been passed by the Assembly and assented to by

the President, or the President is deemed to have assented to the Bill,
under Article 27 of the Constitution, the Speaker shall immediately
cause it to be published in the Gazette as an Act of the Central
Legislature."

The authentication of a Bill, signing thereof and publishing it in the

Gazette as an Act of the Central Legislature, to my mind, refer to the
conduct of the business within the meaning of sub-clause (2) of
Article 111 of the Constitution. This cannot be the subject-matter of
jurisdiction under Article 98 of the Constitution in this Court.

26. I now proceed to consider the provisions o Article 110(1)(d) of

the Constitution, which reads as under:-

"No proceeding in an Assembly shall be invalid by reason only that a

person who was not entitled to do so was present at or voted or
otherwise participated in the proceedings."

This is a validating provision. The Legislature visualised the

difficulty with which it may be confronted if sortie of the members,
who were participating in the proceedings and against whom election
petitions were pending, were subsequently found to have been
illegally elected. Election petitions are not .quickly disposed of. Then
there are petitions in the High Court and sometimes appeals to the
Supreme Court. This takes quite a long time. In the meantime
number of important Acts may have been passed by the Assembly in
which the persons who were subsequently declared to have been
illegally elected had participated. If the Acts in which these
members, who were subsequently found to be illegally elected, had
participated were set aside on that ground, there would be chaos and
contusion in the country. It was to safeguard against this difficulty
that the Legislature made the above provision. If some, of the
members on the date that they participated in the proceedings were
disqualified on the ground alleged by the petitioners, the Legislature
has given a complete protection under Article 110(1) of the
Constitution to the proceedings resulting in the Third, Fourth and the
Sixth Amendments of the Constitution. These Amendments cannot,
therefore, tie held to be illegal on the ground that persons not entitled
to vote have voted.

27. Even if there were no validating provision like Article 110(1) of

the Constitution, I venture to say, most respectfully, that the three
Constitutional Amendments will be covered by the general principle
enunciated by Cornelius, J., as he then was, in the case reported as
Federation of Pakistan v. -Ali Ahmad Hussain Shah (P L D 1955 F C
522), where his Lordship observed as under:-

"The principle is perfectly clear that as. a juristic person, al

corporation is distinct from the corporators and certainly, it cannot be
right to think that the acts of such a juristic person are vitiated ex post
facto because of the discovery made subsequently that some of the
corporators, who participated in the acts of the corporation perfectly
bona fide, lacked the necessary qualification or were otherwise not
validly appointed or included as corporators."

In order to apply the above principle, it would be necessary to find

out whether the members of the Assembly who were alleged to suffer
from some disqualification acted bona fide. I have no hesitation to
hold that they acted bona fide. In the first place, election petitions
were filed only against eight members. Of these, four were dismissed
and four are pending. It follows, therefore, that of the 33 respondents
who participated in the Assembly 29 persons had no reason to
believe that they were not as good members of the Assembly as
others. Their election was notified on 2-4-1965. They were duly
elected members according to the 1964 Act. The law as it stood at the
time they contested the election was that Lambardars etc., could not
be said to be holders of "office of profit, in the service of ' Pakistan".
In this connection, reference may be made to Sajjad All Khan v. Ch.
Fazal Elahi (P L D 1957 Lah. 940). They had, in these circumstances,
no reason to doubt the validity of their election.

28. Mr. Mahmud Ali Qasuri and the other learned Advocates who
appeared for the petitioners, raised a number of points in support of
their contention that the provisions of Articles 110(1)(d) and 111(1)
did not apply to Constitutional Amendments. It was very strenuously
contended by Mr. Mahmud Ali Qasuri that Part XI of the.
Constitution-Amendment of Constitution-is not subject to the
provisions of Article 110(t)(d) and Article 111(1) of the Constitution.
In support of his contention he relied on Article ' 208 of the
Constitution, which reads as under:

"Subject to this Part, this Constitution may be amended by an Act of

the Central Legislature."
The contention is that so far as the amendment of the Constitution is
concerned, it is ably covered by Part XI. There is not much force in
this contention. Part XI of the Constitution consists of three Articles
208, 209 and 210. I have already, reproduced Article 208. Article
209 lays down that a Bill to amend this Constitution shall not be
presented to the President for assent unless it has been passed by the
votes of not less than 2/3rds of the total number of members of the
National Assembly. The rest of the Article deals with the assent of
the President. Article 210 lays down that a Bill to amend this -
Constitution, which would have the effect of altering the limits of a
Province, shall not be passed by the National Assembly unless it has
been approved by a resolution of the Assembly of the Province
passed by their votes of not less than 2/3rds of the total number of
that Assembly. All that Article 208 lays down, is that the conditions
prescribed in Articles 209 and 210 will have to be complied with
before the Constitution is amended. It does not mean that the other
provisions of the Constitution will not be applicable. All it means is
that a Bill to amend the Constitution cannot be passed unless 2/3rds
of the total number of members of the National Assembly vote for it.
It is not possible to read in Article 208 of the word "only" after
"subject to this Constitution". In this connection, reference may be
made to Article 231 of the Constitution, which reads as under:-

"Until rules of procedure are made by an Assembly under clause (1)

of Article 110, the procedure of the Assembly shall be regulated by
rules of procedure made-

(a) in the case of the National Assembly by the President: and

(b) in the case of the Assembly of a Province-.-by the Governor of

the Province." '

The President has been pleased to make Rules of Procedure in June

1962, known as the Rules of Procedure of the National Assembly of
Pakistan. The Rules of Procedure so made are applicable to the
amendment of the Constitution as well with thus modification that
the conditions provided under Articles 209 and 210 of the
Constitution will have to be followed.
29. In the next place it was contended that a correct interpretation of
Article 110(1)(d) would mean that the proceedings of an Assembly
cannot be invalidated only because some members who were not
entitled to vote participated in the, proceedings if they are otherwise
valid. In other words, the submission is that the proceedings of an
Assembly could not be invalidated if for instance 120 people voted
for an amendment, of the Constitution and out of these persons ten
persons were disqualified. As under the Constitution the votes of 104
member; would have been sufficient to amend the Constitution, the
vote of 10 disqualified persons were immaterial. There is not much
force in this contention. The Word "no" is of great significance. It
means "not any". In the next place, it was not necessary for the
Legislature to make Constitutional provision to validate a proceeding
in which the requisite number of qualified persons has participated.
On general principle also, if by ignoring the invalid votes, a Bill was
passed by the requisite number of votes. the same would have been
good law.

30. In the third place, it was contended that the assent ii; not part of
the "internal proceedings" of the Assembly." The contention was.
that a Bill to amend the Constitution could not be presented to the
President unless it was passed by the vote;; of not less than 2/3rds of
the total number of members of the Assembly. In this connection it
was sought to be made out that as 33 members who were disqualified
participated in the Amendment it cannot be said that the
Bill-presented before the President way passed by 2/3rds of the total
number of members of the Assembly. This argument suffers from a
primary defect. If it is once conceded that voting is a part of the
proceedings of the Assembly, the same will be protected under
Article 111(L) of the, Constitution. If it cannot be challenged it will
have to be taken for all legal purposes that the Bill was in fact passed
by 2/3rds of the total number of members of the Assembly. In that
view of the matter, it cannot be said that the Bill presented to the
President for assent was not passed by the requisite number of
members of the National Assembly as required under Article 209 of
the Constitution.

31. In the fourth place, a distinction was sought to be made between

"rule" and "constitutional provision". It was submitted that
suspension of rule 59 of the Rules of Procedure of the National
Assembly of Pakistan was a matter of procedure while the
requirement of voting by the requisite number of members in case of
constitutional amendment was one of Constitution. The submission
was that procedure is referable to rules only. There is not much force
in this contention. We are concerned with the validity of votes which
is a question of challenging proceedings and is not confined to
holding that the requisite number of members did not vote.

32. In the fifth place it was submitted that as the Speaker has no
power to forbid a member of the Assembly from voting, on the
ground that he was disqualified, the voting cannot be said to relate to
the proceedings of the Assembly'. There is no force in this
submission. The power of control over the members of the Assembly
cannot determine as to whether voting is a matter of procedure of the
Assembly or not. Everything that takes place in the House is said to
be the "internal proceedings" of the Assembly.

33. It was submitted, in the sixth place, that constitutional provisions

cannot be affected by rules. This proposition cannot be disputed.
Rule 152(2) of the Rules of Procedure of the National Assembly
which provides that the result of voting by a division shall be
announced by the Speaker and shall not be challenged is not in
violation of the Constitution. No violation of any constitutional
provision is involved in rule 152(2) and none has been suggested.

34. Lastly, it was submitted, relying on an Indian decision, that the

question relating to the validity of votes is not a question relating to
the internal proceedings of the Assembly and this question can be
raised in a Court of law. That was a case relating to the Municipal
Corporation of the City of Bombay. The validity of vote may be a
question of law but if the Constitution bars its consideration by a
Court of law, the same cannot be questioned.

35. The effect of my decision on the questions relating to Articles

110(l)(d) and 111(1) of the Constitution. is that the Third
Amendment of the Constitution is a valid piece of legislation. The
National Assembly by the Third Amendment by adding Schedule 5
has specified that the holders of certain offices cannot be said to hold
"office of profit in the service of Pakistan." In view of the Third
Amendment, Lambardars, Chairmen of Union Councils and Union
Committees and also persons who are in Pakistan Army Reserve
cannot be said to "hold office of profit in the service of Pakistan"
within the meaning of Article 103(2) of the Constitution so as to
disqualify them from being elected as members of the . Assembly. It
is, therefore, unnecessary, in view of the Third Amendment, which
has been given retrospective effect, to give any finding as to whether
the respondents can be said to "hold office of profit in the service of
Pakistan." '

36. Mr. Mahmud Ali Qasuri, during the course of the arguments,
made an application for amendment of the petition .so as to include
the relief of .quo warranto. He made this application by way of
precaution. He was apprehensive that the petition may be dismissed
on the ground that a relief of quo warranto had not been asked for.
On the statement of the learned Attorney-General that the petition
could not be dismissed (if Mr. Leghari was otherwise entitled to the
relief he had asked for) on the ground that no prayer for quo warranto
had been made, we dismissed the application. Even if the application
for amendment of the petition so as to include the relief for quo
warranto against the respondents was granted, it would not have been
possible to grant the prayer. The relief of quo warranto was asked for
on the ground that the respondents, who were holding public offices,
were disqualified to hold the same as they were holding "office of
profit in the service of Pakistan." In view of my finding that the\
Constitution (Third Amendment) Act, 1965 could not be challenged
in a Court of law and was, therefore, a valid one, the ground on
which the public office of the respondents was challenged
disappeared.

37. It has been contended on behalf of Mr. Leghari that respondent

No. 1 acted mala fide under Article 178 of the Constitution, in
ordering his retirement. There is no force in this contention. In the
petition of Mr. Leghari and others no particulars of mala fide are
given against the competent authority entitled to take action under
Article 178. In the petition of Mr. Leghari all that is mentioned is that
some senior officers of the Government were against the petitioner.
This fact by itself cannot support, even if accepted, the allegation of
the petitioner against the Government. There is no allegation that
these officials in some way influenced the Government to take action
against the petitioners under Article 178 of the Constitution. The
presumption is that every action of Government is bona fide In this
connection reference may be made to the case of Sai Muhammad v.
West Pakistan Province (P L D 1952 S C 181). It was observed by
my Lord Cornelius, J., as he then was, as under:-

"The correct attitude in estimating the actions of Government is

indeed that they must be regarded as having been taken bona fide
until and unless the contrary is established. It is, of course, only in a
rare case that a question of good faith underlying a governmental
action can be raised with relevancy before the Courts, which are most
frequently concerned with the extent to which such actions are
covered by the terms of statutory instruments. But where the question
arises, it is entirely proper and greatly in the public interest that the
presumption of good faith should be raised in favour of the action."

This observation was confirmed by their Lordships of the Supreme

Court in the case reported as Imtiaz Ahmad v. Ghulam Ali (P L D
1963 S C 382).

38. Lastly, it was submitted that the power under the impugned
Amendments is subject to the requirement that it can be exercised "in
the public interest". Paragraph 9 of the petition reads as under:

"That the power taken by the impugned amendment is still subject to

the requirement that it can only be exercised in the public interest'.

The Provincial Government under whom the petitioner has served

throughout is fully satisfied with his work. The exercise of this power
is not attracted in the petitioner's case because not only is his
elimination from service not in public interest, he submits in all
humility, it is contrary to public interest and mala fide."

In the first place, the question as to whether Mr. Leghari is being

retired in public interest is premature inasmuch as admittedly only a
reference has been made to the Central Public Service Commission.
The possibility cannot be ruled out that the Public Service
Commission may take a different view than the competent authority.
In the second place, the question as to who is to be the Judge of
"public interest", I am of the view that B this Court has no power to
inquire as to whether the retirement was in "public interest" or not. In
this connection reference may be made to the observations made by
Lord Viscount Dunedin in Bhagat Singh v. King-Emperor (58 I A
169). In that case the question that arose before the Privy Council
was as to whether any emergency did exist so as to authorise the
Governor-General to p, promulgate an Ordinance. In the present case
the question is -as to public interest to retire the petitioners. Viscount
Dunedin, J. observed:

"The petitioners ask this Board to find that a state, of emergency did
not exist. That raises directly the question who is to be the Judge of
whether a state of emergency exists. A state of emergency is
something that does not permit of any exact definition. It connotes a
state of matters calling for drastic action, which is to be Judged as
such by someone. It is more than obvious that that someone must be
the Governor General, and he alone. Any other view would render
utterly inapt the whole provision."

I am of the view that the question as to whether it is in the public

interest to retire a certain public servant under Article 178 of the
Constitution or not, is a question of which the competent authority is
the sole Judge. This Court cannot enter on a contentious and
protracted inquiry on the question of public interest. A similar view
was taken by Viscount Simon, L. C., in, King-Emperor v. Benoari
Lal Sharma (72 I A 57). In that case also the question was as to
whether an emergency existed at the time when an Ordinance was
promulgated. Their Lordships of the Privy Council held that the
question whether an emergency existed or not is a matter of which
the Governor-General is the sole Judge. There is difference between
"emergency" and "public interest", but if the Constitution has
entrusted the determination of the question of emergency or of public
interest to a certain authority, this Court cannot substitute its own
judgment after a contentious and protracted inquiry.

39. Their Lordships of the Privy Council had occasion to consider

"public purpose" in dealing with cases under the Land Acquisition
Act. In the case reported as Ezra v. Secretary of State (I L R 32 Cal.
605), it was observed that the nature of inquiry in respect of
existence of public purpose for which the land could be acquired was
"in no sense litigious". In another case Wijeyesekera v. Festing (1919
A C 646), the Privy Council had occasion to examine as to whether
the decision of the Governor as to the public purpose under the
Ceylon Acquisition of Land Ordinance was final or not. Lord Finlay,
at page 649, observed as under:-
"It appears to their Lordships that the decision of the Governor that
the land is wanted for public purposes is final and was intended to be
final and could not be questioned in any Court."

The conclusion that I draw from these cases it that where the
Legislature has given a power of subjective satisfaction to an
authority, its decision is final it cannot be questioned- in any court.

40. I would, for the reasons given above, dismiss these 106 petitions
with no order as to costs.

41. There were in all 145 petitions before us. I had asked my Reader
to request the learned Advocates appearing for the petitioners to give
a list of petitions in which some other substantive point had been
raised beside the once urged in Mr. Leghari s petition. The learned
Advocates gave a list of 39 such petitions. I may mention that these
petitions also were mainly admitted for the consideration of the
constitutional points taken in Mr. Leghari's petition. I would,
however, in the interest of justice order that these petitions be heard
by a Division Bench on 28-10-66.

WAHIDUDDIN AHMAD, J.-,In these writ petitions which have

been heard together the petitioners have raised a number of questions
of law about the validity- of the third, fourth and sixth amendments
of the Constitution of Pakistan 1962, which were recently passed by
the National Assembly of Pakistan.

2. The facts leading .to these petitions have been fully stated in the
judgment of my Lord the Chief Justice. I would therefore not repeat
them. It will be noticed that the main attack on the validity of the said
constitutional amendments is that respondents Nos. 4 to 38 being
Lambardars, Chairmen of the Union Councils or Committees and
Reservists in the Pakistan Armed Forces, are holders of "office of
profit" in the service of Pakistan and being disqualified from being
elected and from being, a member of the National Assembly . of
Pakistan under Article 103(2)(a) of the Constitution illegally got
themselves elected to that august body and were not entitled to
participate in the -proceedings of the National Assembly held on 14th
June 1965 in which the Third Constitution Amendment Act of 1965
was passed. It is alleged that the aforesaid three constitutional
amendments were passed by 113, 117 and 119 votes respectively.
Since out of these at least 33 votes were of persons disqualified, their
votes could not be counted for the purpose, of determining the two
thirds of the total number of votes required for assent of the President
under Article 209 for the Amendment of the Constitution of Pakistan
1962 and consequently it has no validity in the eye of law. -It 'was
admitted at the bar that if the said constitutional amendment is held
to be valid, the validity of the other two constitutional amendments is
not open to challenge.

3. It will be further noticed that by the Third Constitution

Amendment, amongst others, Lambardars, Chairman of Union
Councils or Committees and Reservists in Pakistan Armed Forces
have been exempted from the alleged disqualification. One of the
main grievance of the petitioners is that the respondent members,
who were suffering from the alleged disqualifications, knowingly
that they were disqualified, improperly participated in the meeting
held on 14th June 1965. It is quite correct that the Law Minister
while introducing the bill for this purpose did state that it was for
clarifying certain provisions of the Constitution pertaining to the
issue of "office of profit" and it was brought with a view to clarify
and to remove any doubt which might have arisen in that behalf. It is
also correct that objection was raised about the participation of such
members but the acting Speaker very rightly declined to make any
comment on their status on the ground that they were duly elected
and notified as members of the Assembly and were as good members
as the others. I am however not prepared to attribute any bad motive
to the respondent members because at the material time on the
controversial question whether Lambardars are holders of office of
profit in the service of Pakistan there was a well considered judgment
by a Division Bench of this Court in the case of Nawab Sajjad Ali
Khan v. Chaudhri Fazal Illahi Speaker, Legislative Assembly and
others (P L D 1957 Lah.940), in which it was held that a Lambardar
is not the holder of an "office of profit" in the service of Pakistan
within the meaning of paragraph 4(1)(c) of Part II of the Fourth
Schedule to the Constitution of 1956, which contained the same
provision as in Article 103(2) of the present Constitution. On this
view the member concerned was allowed to continue to be a member
of the Provincial Assembly of West Pakistan. In this connection it
will be useful to reproduce the observations on this point of Kayani,
J., as he then was. His Lordship at page 949 observed:
"It is inconceivable that Article 179 should have started with
providing conditions for service in a broad sense, including the post
o-f a Lambardar, but that in the rest of the chapter that broad
meaning should have been totally forgotten and provision as to
appointment, dismissal and conditions of service should have been
made only in respect of persons holding posts in ordinary civil and
defence services of the country. If that were so, the only object of
Article 179 would have been to ensure that persons in the "general
service" of the State, like Lambardars, should be citizens of Pakistan
and as regards other conditions of service, it did not matter if they
were dismissed without a reasonable opportunity being given to them
to defend themselves.

I have, therefore, no doubt that the Constitution did not intend to

include a Lambardar in the service of Pakistan."

4. Mr. Qasuri, the learned counsel for the petitioner, besides

challenging the soundness of this view, referred us to the decision of
the Supreme Court in the case of Election Commission of Pakistan v.
Nawab Sajjad Ali Khan (P L D 1960 S C 235), in which the above
decision was set aside on technical grounds. But the learned counsel
had to admit that the reasoning of the learned Judges in the Lahore
case was not disapproved and therefore it can safely be said that the
principle of law enunciated in the above case still held the field. In
this background no bad motive can be attributed to the respondent
members.

5. The other grievance of Mr. Qasuri is that there was a conspiracy

between the members to pass the-impugned Legislation in a hurry so
much so that in spite of the protest and walk out staged by the
opposition it was passed in the Budget Session in a single day after
suspending rules 58 and 59 under rule 170 of the relevant Rules of
Procedure. Mr. Qasuri admitted that this by itself has no material
bearing on the merits of the case. However there is nothing
extraordinary or objectionable in passing the legislation in this
manner. The Rules of Procedure authorised such a course of action
on the approval of the House. Besides even in the House of
Commons, which is taken as a model of parliamentary institutions,
there are instances in which legislations have been passed with
unusual expedition. Instances of such legislation are discussed at
page 571 of May's Parliamentary Practice (15th Edition 1950). As
regards the allegation of abuse of legislative power it being a
political question this Court has no control over it. As pointed out in
Attorney General of Canada v. Attorney General for Ontario (78 L T
697), a decision of the Privy Council cited at the Bar by the learned
Advocate-General: -

"The Supreme legislative power in relation to any subject matter is

always capable of abuse, but it is not to be assumed that it will be
improperly used; if it is, the only remedy is an appeal to those by
whom the Legislature is elected."

Much of the time of this Court was taken by the learned counsel for
the parties on the question whether respondents Nos. 4 to 38 held
"office of profit" in the service of Pakistan. According to Mr.
Mahmud Ali Qasuri, learned counsel for the petitioner, out of them
23 are Lambardars, 17 are Chairmen of the Union Councils and 2 are
Reservists in the Pakistan Armed Forces. But a perusal of the
Annexures filed with the petition will show that some of them held
both the offices of Lambardars and Chairmen of Union Councils or
Union Committees. Out of them five of the respondents have denied
the allegation that they are holding any "office of profit". There is no
proof to the contrary about them. Similarly on the affidavit filed by
Malik Muhammad Qasim it cannot be said that he is a Reservist.
Thus on the material placed on the record, at the most the petitioners
can allege that 17 of the respondents being Lambardars, 8 being
Chairmen. of Union Councils and 2 being Reservists in the Armed
Forces, are holding "office of profit" in the service of Pakistan. But
the view that I propose to take on the objections raised on behalf of
the respondents it will serve no useful purpose to decide the
controversial question whether the said respondents hold "office of
profit" in the service of Pakistan. I will therefore refrain from
expressing any opinion on this question and proceed to decide these
petitions on the assumption that the above respondents were
disqualified to become or remain as members of the National
Assembly at the material time.

The objection raised by the respondents about the jurisdiction of this

Court and on other points may be summarized as under:

(1) That the jurisdiction of this Court is barred under Article 110(d)
and Article 111 of the Constitution to challenge the proceedings in
the Assembly including the manner in which the members voted and
the assent as given by the President for the impugned legislation.

(2) That Article 171 of the Constitution is a complete bar of

jurisdiction for this Court to go into the question of the qualification
or disqualification of the respondent members and

(3) That the acts of de facto members who function under colour of
title are valid as they in fact hold an office.

7. Therefore the first legal hurdle in the way of the petitioners is the
immunity claimed in respect of the proceedings of the National
Assembly under Article 110(d) and Article 111(1) of 1962
Constitution. In this connection the learned Attorney General has
urged the following points:-

(1) voting in the Assembly pertains to a formative stage of an

enactment and constitutes an essential part of the proceedings of the
Assembly which is not subject to scrutiny of Courts according to
Article 111(1), of the Constitution. The objection against the validity
of vote is barred under the said provision;

(2) the acts of the Speakers in making announcement of the result of

division of votes and authenticating the bill as having been passed
are not subject to jurisdiction of Courts under Article 111(2) of the
Constitution and the Courts cannot go behind the Speakers
announcement or the result of the division or authentication.

(3) Article 110(d) declares that votes of even disqualified persons

shall not vitiate the National Assembly proceedings. This is a
provision conferring validity but it implies also a jurisdictional
aspect. No Court or authority can declare as invalid which the
Constitution declares as valid. Thus constitutional amendments
cannot be impeached on the basis of allegedly disqualified person
having voted in their favour.

(4) In so far as the petition involves `the attack and objections to the
election of certain respondents, Court'; jurisdiction is barred whether
the purpose of proceeding is directly to challenge the rights of .the
aforesaid persons to be members of the National Assembly or to
challenge their right only for collateral or ulterior purpose.
(5) Constitutional amendments can be made by means of Central
Act. The provision of the Constitution and rule relating to the
formative stage of such Act under rule 110(d will apply in the
absence of any contrary provision in Part XI. That only is the
significance "subject to this part" i: Article 208.

8. I will therefore first take up the question whether the jurisdiction

of this Court to question the validity of the vote of respondents 4 to
38 is barred under Article 110(d). Before discussing this point it will
be useful to reproduce Article 208 and 209 of the 1962 Constitution
which are in the following terms:

"208. Subject to this part, this Constitution may be amended by an

Act of the Lentral Legislature.

209. (1) A bill to amend this Constitution shall not be presented to

the President for assent unless it has been passed by the votes of not
less than two-thirds of the total number of members of the National
Assembly.

It will be further useful to reproduce Article 110(d) and Article

111(1) of the Constitution which are as under:-

"110(d) no proceeding in an Assembly shall be invalid by reason

only that a person who was not entitled to do so was present at or
voted or otherwise participated in the proceedings.

111. (1) The validity of any proceedings in` an Assembly shall not be
questioned in any Court."

An examination of these constitutional provisions would show that

Article 110(d) and Article 111(1) appear in Part V of the Constitution
which deals with the provisions applicable generally to the Centre
and Provinces; whereas Articles 208 and 209 are in Part XI of the
Constitution which deals with the amendment of the Constitution-

9. Mr. Mahmud Ali Qasuri, learned counsel for the petitioner, has
raised two important contentions to meet these objections which
require consideration. In the first place, the learned counsel
contended that the requirement of Article 209 of the Constitution has
nothing to do with the proceedings of the National Assembly. It is an
independent self-contained constitutional requirement. If in any
given case the constitutional amendment has not been passed by the
votes of not less than two-thirds of the total number of members of
the National Assembly it will be not considered to have been
properly passed and cannot be presented to the President for assent.
Secondly, the learned counsel contended that in order to determine
whether the votes of two-thirds of the total .number of members of
the National Assembly have supported any constitutional amendment
the provision of Article. 209 of the Constitution are not controlled by
Article- 110(d) and Article 111 of the Constitution. The learned
counsel very strongly urged that the determination of such question
cannot be considered to bean internal proceeding of the assembly and
is not immune from attack under the aforesaid provision of the
constitution. In support of his case Mr. Qasuri further contended that
Part XI of the Constitution is a self-contained provision; the assent to
the constitutional amendment is to be given under the special
procedure provided .in Article 209 and Article 27 of the Constitution
has no. application to such an enactment. That Article applies to
ordinary legislation. He further contended that the question whether
the requisite number of votes of the members of the National
Assembly have supported the constitutional amendments and
whether assent was given after the fulfilment of the condition laid
down in Article 209 of the Constitution was a provision as to manner
and form; and therefore if the Third Constitutional Amendment was
not approved by two-third votes of the total number of members of
the National. Assembly it cannot be held to be validly passed.

10. It was further urged by Mr. Qasuri that in the Constitution there
is no power in the National Assembly or the Speaker to determine
whether a member is or is not entitled to vote. They also cannot
confer any right on any person to participate in the assembly. The
learned counsel distinguished the power of the National Assembly
from the power of the British Parliament which itself has a right to
determine the rights of its members. According to him the National
Assembly cannot claim the same constitutional position because it is
not a sovereign body. He further contended that by the Rules of
Procedure framed by the President or the Assembly no statute or the
constitutional provisions can be infringed. Disqualified persons
cannot be given right to vote by the Rules of Procedure or for the
matter of that by the procedure. Otherwise the Speaker becomes all
powerful and it is not what the Speaker is required to do. The right of
a person to vote or not to vote is a matter of status and not an internal
proceeding of the Assembly.

11. Mr. Zullah, the learned counsel for some petitioners, also
contended that the word "proceedings" used in Article 110(d) is not
different from "procedure" and has been used only in that sense. The
Learned counsel also drew distinction between the act of voting and
the right to vote. He further drew a line of distinction between the
process of legislative measures which are liable to challenge and
which are not. According to him, if the disqualification is there and
the contest is not about the number of votes but only about the right
to vote such question is to be decided by Courts of law.

12. In support of his contention that the Constitution expressly gives

power to Superior Courts for its interpretation Mr. Qasuri relied on a
decision of the Supreme Court in Fazlul Quader Choudhry and others
v. Muhammad Abdul Haque (P L D 1963 S C 486). According to the
view taken in this decision it cannot be disputed that the
-interpretation of the Constitution is a prerogative and the duty of the
superior Courts. Their Lordships have clearly laid down that in cases
of conflict between the supreme law of the Constitution and an
enactment it is the duty of the superior Courts as its preservers,
protectors and defenders to declare the enactment in question as
invalid to the extent of its repugnancy with the Constitutional
provision in the absence of any bar either express or implied. At the
same time as observed by Rahman, J., it is the duty of the Courts to
interpret the Constitution as an organic whole giving due effect to its
various parts and trying to harmonise them so as to make it an
effective and efficacious instrument for the governance of the;
country.

13. The learned counsel further relied on the decision of the Federal
Court of Pakistan in the case of Federation of Pakistan v. Ali Ahmad
Hussain Shah (P L D 1955 S C 522) for the proposition that the
general rule is that if the Legislature illegally adds to its members
and the persons so added take part in discussion and voting the laws
passed by it are void. In that case Munir, C. J., further observed that
in the case of Companies and statutory bodies like Municipal
Corporation, the rule is well settled that the proceedings of such
bodies are vitiated by strangers taking part m and voting of their
meeting. Mr. Qasuri, further relied on the observations of Kaikaus, J.,
in the case of Mansoorul Haque v. Controlling Authority (P L D
1963 S C 652), at p. 662:

"The vote of the other Vice-Chairman was no doubt cast improperly

for he had no right to vote. But that does not affect the validity of the
resolution for removal because the voting was eight to two and the
absence of one vote will not make any difference. It is contended by
learned counsel for the appellant that the presence of even one
Vice-Chairman who was not entitled to vote should be a ground for
setting aside the resolution, because he may have influenced the
other members, but this only means that there was an irregularity and
the resolution could be set aside 'on the ground of the irregularity
only if it was material. Onus is on the appellant to show that as a
matter of fact this irregularity affected the result of the voting.
Admittedly there is nothing at all on the record to prove that the
presence of the Vice-Chairman who had no right to vote in any way
affected the resolution. The mere presence of a member not entitled
to .vote is not itself sufficient for setting aside the resolution."

In support of his contention that the validity of votes is a question of

law and a Court of law has jurisdiction to entertain such objections,
he placed reliance on the case of Nariman v. The Corporation of the
City of Bombay (A I R 1923 Dom. 305). In that case Mulla, J., as he
then was, was considering the effect of the participation of some
members who were found to be disqualified. In that context the
learned Judge at page 316, column 2, observed as under:-

"The question of the validity of a vote is a question of law and a

Court of law has jurisdiction to entertain it. One of the points raised
on behalf of the defendants was that the Court has no power to
interfere with the internal management of a Corporation and reliance
was placed on the observations of Lord Davey in Burland v. Earle.
On page 93 the noble and learned Lord says. "1t is an elementary
principle of the law relating to joint stock companies that the Court
will not interfere with the internal management of companies acting
within their powers and in fact has no jurisdiction to do so." But
surely questions as to the validity of the internal management of a
Corporation they are questions that can be disposed of only by a
Court of law."
Reference was also made to the decision of the Indian Supreme
Court in Vinod Kumar and others v. State of Himachal Pradesh (AIR
1959 S C 223). In that case a defect in the summoning of the
Provincial Assembly was considered to be such that it robbed all
laws passed by the Himachal Pradesh Legislature. Strong reliance
was also placed on the decision of the Privy Council in
Attorney-General for New South Wales and others v. Irethown and
others (1932 A C 526). In that case the Constitution Act of 1902
enacted by the Legislature was amended in 1929 by adding section
7-A which provided that no bill for abolishing the Legislative
Assembly should be presented to the Governor for His Majesty's
assent until it had been approved by a majority of electors voting
upon a submission to them made in accordance with the section; and
that the same provision was to apply to a bill to repeal the section. In
1930 both the Houses of the Legislature passed two bills, one to
repeal section 7-A and the other to abolish the Legislative Council
without complying with section 7-A of the Constitution Act of 1902.
It was held by the Privy Council that the whole of section 7-A of the
Constitution Act of 1902 was within the competence of the
Legislature of the State under section 5 of the Colonial Laws Validity
Act, 1865; that the provision that bills of the nature stated must be
approved by the electors before being presented was a provision as to
"manner and form" within the meaning of the proviso; and
accordingly the bills could not lawfully be presented unless and until
they had-been approved by a majority of the electors voting.

14. In my opinion the above decisions are clearly distinguishable and

are not of much assistance to the petitioners because the National
Assembly cannot be placed on the same level as a Municipal
Corporation or a Legislature having strictly limited functions. It is
impossible for me to hold that an assembly which has the power to
amend the Constitution is a non-sovereign body. Moreover, in the
Bombay case there was no such validity clause as contained in
Article 110(1)(d). On the other hand, under section 52 of the City of
Bombay Municipal Act 1888 there was a specific provision that the
disqualification or defect would not vitiate the proceedings whenever
the majority of persons-parties to such acts or proceedings were
entitled to act. In the Bombay case it was found that the majority of
persons, parties to the impugned proceedings were not in its favour.
It was for this reason that reliance was placed on behalf of the
defendants on the general law that the Courts should not interfere
with the internal management of the Corporation. The principle
enunciated in the Federal Court decision has also no bearing on the
facts of the present case because in the Indian Independence Act
there was no such validation clause as in the present Constitution.
The Indian Supreme Court decision is also distinguishable because in
that case instead of summoning the new Legislature the old
Legislature was summoned which was not competent to pass are
legislation in respect of big landed estates; and therefore there could
be no other alternative except to hold that any such legislation was
passed by an incompetent Legislature. The point involved in 1932
Appeal Cases 526 was quite different and it is also distinguishable. In
the first place in that case the Legislature concerned under the
Australian Constitution had strictly limited legislative functions.
Secondly the consent of the electorate which was a~ pre-requisite
was not obtained. There was no allegation that the consent was
illegally obtained in the present case. Kaikaus J.'s observations in the
case of Mansur-ul Huq v. Controlling Authority are also of general
nature. The learned Judge by making the above observations only
pointed out that the vote of the other Vice-Chairman improperly cast
was not itself sufficient to vitiate and set aside the resolution because
the voting was eight to two and the absence of one vote will not
make any difference. In that case too there was no such validating
clause as has been relied upon on behalf of the respondents.

15. Coming back again to Article 110(1)(d) it will be noticed that it

clearly provides that "no proceedings in an Assembly shall be invalid
by reason only that a person who was not entitled to do so was
present or voted or otherwise participated in the proceedings." It
therefore contemplates to cure two types of irregularities. Firstly it
cures the proceedings if any person who was not entitled to do so
was present at or otherwise participated in the proceedings of an
assembly. Secondly it cures the defect if any person who was not
entitled to do so voted in the proceedings. No one can have any
quarrel with the contention of Mr. Qasuri that the key of this sub
Article is the word "only". It will be noticed that in the present case
too the alleged illegality is in respect only of the participation and
voting in the proceedings of the assembly leading to the enactment of
the Third Constitutional Amendment Act. Therefore it has full
application on the facts of these cases. In fact in this respect the
Pakistan Constitution has gone much further than what was provided
in the Government of India Act 1935 or what is provided in some
Municipal statutes or in the Companies Act. In those statutes the
defect is curable only when it is discovered subsequently. In some
legislations there is a rider clause attached to it that it will be
available only, whenever the majority of persons-parties to such act
or proceedings were entitled to act. I have noticed such a rider clause
in section 57 of the Bombay Act referred to by Cornelius, J., as he
then was, in P L D 1955 F C 522 at page 535.

16. In such cases argument could be advanced that for validating the
defects, the majority for the act or resolution passed must be
maintained, meaning thereby that if excluding these votes the
majority becomes a minority the proceedings would be vitiated. Had
this been the intention of the framers of the Constitution they could
have easily attached similar rider clause, but that is not the case.

17. Such validitating provisions are not unknown to the constitutional

legislations. The underlying idea behind them is that in the absence
of such a provision chaos will result in the governance of a country if
at some stage any such defect as is mentioned in this sub-Article is
discovered. The case of Ali Ahmad Hussain Shah referred to above is
an example of such disastrous consequences. It may be that in other
legislations on this subject it is open to make a distinction between an
election in which there is a defect or, in other words, between a
defective election and no election at all. Apparently the provision
under consideration is of much wider scope, but I would be reluctant
to extend it to cases where there is no genuine election and would
prefer to confine it to cases of purported appointment or elections or
in the words of the learned Attorney General "to persons holding
public office under colour of title".

18. Equally unsound is the argument of the petitioner's counsel that

right to vote is something different from the act of voting and has no
connection with the proceedings of an assembly. According to May's
"on Parliamentary Practice". "The primary meaning, as a technical
Parliamentary term, of "proceedings" is some formal action, usually a
decision taken by the house in its collective capacity. This is
naturally extended to the form of business in which the House takes
action and the whole process, the principal part of which is debate,
by which it reaches decision." According to the learned author. "An
individual member takes part in a proceeding by speech but also by
formal action, such as voting, giving notice of motion etc., or
presenting a petition or a report from a committee, most of such
action, being time-saving substitutes for speaking." In Coffin v.
Coffin (4 Mass 1), Parson, C. J., described it as under:-

"I will not confine it (freedom of speech) of delivering an opinion, a

speech or haranguing in debate but will extend it to giving a vote, to-
the making of a written report and to any other act resulting from the
nature and in the execution of the office."

The present case however stands on a much firmer ground because

the act of voting has been validated in the sub-Article under
consideration in relation to the proceedings of an assembly which
clearly indicates that such act forms part of the legislative process. In
my view if an attack is made on the right of a member to vote in the
proceedings of an assembly it is nothing short of questioning the
validity of the proceedings of such an assembly and the mere fact
that Article 209 happens to be in a separate part of .the Constitution
by itself cannot be a good ground to render ineffective the provisions
of Article 110(1)(d) of the Constitution.

The next question for consideration is whether Article 111(1) bars

the jurisdiction of this Court to consider the validity of the
proceedings of the Assembly in so far as the right of respondent
members to participate in it and to vote in respect of the Third
Constitutional Amendment is concerned. The argument of Mr.
Mahmud Ali Qasuri on this aspect of the question is the same as in
respect of Article 110(d). He contended that the constitutional
requirement- of the votes of 2/3rds of the total number of members
has nothing to do with the internal proceeding of the Assembly.
According to him the sphere of Article 209 commences after the
National Assembly has passed a bill, it is an act which has to be
performed outside the chamber of the National Assembly. On the
other hand, the contention of Mr. Ghias Muhammad, the learned
Attorney-General is that voting and division in the Assembly are part
of the proceedings of the Assembly and pertain to a formative stage
of an enactment. Since Assembly proceedings are not subject to
scrutiny by the Court and objection about the validity of voting is
barred under Article 111(1), it is not open to this Court to consider
whether the votes of Respondents 4 to 38 were validly cast. In this
connection Mr. Qasuri further contended that the President is only
part of the Central Legislature and not of the National Assembly and
therefore the proceedings of the Assembly referred to in Article
111(1) refers only to the proceedings of the National Assembly. It
seems to me that the last contention of Mr. Qasuri cannot be
supported on the provisions of Article 19 of the Constitution which
reads under:-

"There shall be a Central Legislature of Pakistan, which shall consist

of the President and one House, to be known as the National
Assembly of Pakistan."

The contention of Mr. Qasuri that the words "to be known as the
National Assembly of Pakistan" go with "one House" has no
substance because the words "There shall be a Central Legislature of
Pakistan" followed by a comma and the words "which shall consist
of the President and one House" are followed by another comma
which clearly indicates that the Central Legislature of Pakistan
consists of the President and one House and is to be known as the
National Assembly of Pakistan. It was contended by Mr. M. A.
Zullah and Mr. Qasuri that Article 20 which provides for the
composition of National Assembly cannot lead to such a conclusion.
But there is no such inconsistency because it only provides that there
shall be 156 members of the National Assembly, one half of whom
shall be elected in accordance with the Constitution and law from the
Province of East Pakistan and the other half from the Province of
West Pakistan; and out of them three of the seats for the members of
each province shall be reserved exclusively for women. Mr. Zullah
contended that had it been the intention of the framers of the
Constitution that the President was also a part of the National
Assembly his office would also have been mentioned in Article 20.
The argument of the learned counsel has not impressed me because
in Article 19 the old notion known to the constitutional: students that
the Queen or the King or the President are part and parcel of the
parliament has been introduced, while in Article 20 the manner in
which the National Assembly has to be composed is provided. If the
intention of the framers of the Constitution had been to describe the
one House of the Central Legislature to be known as National
Assembly of Pakistan it was open to them to adopt the same
phraseology as was incorporated in Article 43 of 1956 Constitution
which is in the following terms:
"There shall be a Parliament of Pakistan consisting of the President
and one House, to be known as the National Assembly."

Under this Article the idea is quite different. In it the National

Assembly refers to one House and not to the Parliament of Pakistan.
Reference to Article 79 of the Indian Constitution will also bear this
out which is as under:

"There shall be a Parliament for the Union which shall consist of the
President and two Houses to be known respec tively as the Council
of States and the House of the people."

There is no comma after the words "Parliament for the Union" or

after the word "and two Houses". Therefore in the Indian
Constitution also the words "to be known respectively as the council
of States and the House of the people" refer to the two Houses and
not to the President. In other Constitution where a different intention
is contemplated the same phraseology has been used as in Article 19
of the Pakistan Constitution, for instance, section 1 of the Australian
Constitution provides as under:

"The legislative power of the Commonwealth shall be vested in a

Federal Parliament, which shall consist of the Queen, a Senata and a
House of representatives and which is hereinafter called the
parliament or parliament of Commonwealth."

Thus in Australia the Federal Parliament consists of the Queen, a

Senate and a House of representative and all these functionaries are
described as the parliament or parliament of the Commonwealth. It is
therefore quite obvious that under Article 19 of-the Constitution of
1962, the Central Legislature of Pakistan consists of the President
and one House and it is also to be known as the National Assembly
of Pakistan. In this view of the matter the President is part and parcel
of the National Assembly of Pakistan. The history behind such
constitutional legislation has been discussed at length in the case of
Federation of Pakistan etc. v. Moulvi Tamizuddin Khan (P L D 1955
F C 240). In this connection Munir, C. J., at page 284 of the report
observed as under:-

"The Crown is a constituent part of Parliament in the United

Kingdom and of all', Dominion Legislatures either because it is
expressly so stated in the constitutional statutes or because the Crown
appoints the Governor-General who is empowered to give or
withhold assent to the Legislation of the Dominion. The same was
the position under the Act of 1935, where the King's representative,
i.e., the Governor General, was a part of the Federal Legislature. It is
this common restriction that exists on the Dominion Legislation
which subsection (3) of section 6 intended to enact when it provided
that the Governor-General of the Dominion shall have full power to
assent in His Majesty's name (including the power to withhold
assent) to laws of the Legislature of the Dominion."

Thus from whichever angle the position of the President qua the
National Assembly is considered it is quite clear that he i; part of the
National Assembly. It is for this reason that under Article 27 of the
Constitution it is provided that:-

"When a bill has been passed by the National Assembly i shall be

presented to the President for assent."

Similarly, in Article 209(1) of the Constitution, it is provided that:-

"A bill to amend this constitution shall not be presented to the

President for assent unless it has been passed by the' votes of not less
than 2/3 of the total number of members of the National Assembly."

Moreover, the President, has a right to address the National

Assembly and to send messages. The life of the office of the'
President goes with the life of the National Assembly. Under Article
23(4) if the President dissolves the National Assembly "he shall
cease to hold office upon the President elected as his successor
entering upon his office." Considering the case of the parties in this
light there can be no doubt that when a bill is, presented, whether it is
an ordinary legislation or a constitutional amendment, to the
President for his assent, it is in the formative stage of the legislative
process and this sphere of activity can be described as nothing else
but a part of the proceedings of the National Assembly. In this view
of the matter it is quite obvious that if any objection is raised about
the validity of the assent or about the validity of the total number of
votes cast in support of the constitutional amendments, scrutiny of
this question will be barred under Article 111(1) of the Constitution
which provides that:
"The validity of any proceedings in an assembly shall not be
questioned in any Court."

20. Mr. Qasuri, however, contended that when the National

Assembly proceeds to amend the Constitution under Part XI it has a
different capacity and the rules of procedure applicable leading to the
enactment of ordinary legislation have no application. It was further
argued by him that the assent required under Article 209 of the
Constitution has nothing to do with the assent required under Article
27. It is something different from what is provided in Article 27. In
my opinion this contention also has no force. The well recognised
principle of interpretation of constitution is that all its provisions
should be construed in such manner that it may lead to harmonious
results. The contention of Mr. Qasuri might have had some force if
there was some other procedure provided for amendment of the
Constitution. Part XI does not provide for the manner in which a
constitutional legislation should be passed by the National Assembly.
On the other hand, Article 208 specifically provides that:

"Subject to this part, this constitution may be amended by an Act of

the Central Legislature."

Therefore, subject to what is provided in Part XI the other procedure

for the amendment of the constitution will be the same as for passing
an Act of the Central Legislature. What is an Act of the Central
Legislature is provided in Article 28. It provides that when the
President has assented or is deemed to have assented to a bill passed
by the National Assembly it shall become a law and shall be called
an act of the Central Legislature. Therefore a bill passed by the
National Assembly assented to by the President is called an Act of
the Central Legislature. The manner in which it is to be assented
would be the same as provided in Article 27. The only rider clause in
respect of the constitutional amendment under Article 209 is that it
shall not be presented to the President for assent unless it has been
passed by the votes of not less than two-thirds of the total number of
the members of the National Assembly. It is not disputed that
ordinary legislation can be passed by a majority of votes and Mr.
Qasuri frankly conceded that even if a disqualified person
participates in the 'passing of ordinary legislation that would not be
of much consequence. His main attack is on the constitutional
amendment and he forcefully contended .in respect of such a bill that
if it has not been passed by the votes of not less than two-thirds of
the total number of the members of the National Assembly, it cannot
be presented to the President for his assent. So far his argument is
quite correct. ' But the moment he proceeds to argue that this is not a
legislative process but something outside the legislative process the
difficulty arises. It seems to me that Part XI of the Constitution is not
a complete code of procedure for passing constitutional amendments.
So far as gaps in the procedure as to how in what, manner it is to be
passed by the National Assembly and how the President's assent is to
be obtained, one shall have to fall back) on the rules of procedure
framed under Article 110(1) of the Constitution. Somewhat similar
dispute arose in the Indian Court in respect of Article 368 of the
Indian Constitution which also deals with constitutional
amendments: It was urged before the Indian Supreme Court that the
ordinary procedure of legislation has no application in respect of the'
constitutional amendments made under Article 368 of the Indian
Constitution. It was urged that when the Houses of Parliament
consider the question to amend the constitution they act in the
entirely different capacity and the ordinary procedure for the passing
of the legislation has no application in such cases. In Shankari Prasad
Singh Deo v. Union of India and others (A I R 1951 S C 458), this
contention was repelled by Patanjali Sastri, J., on the following
observations made at page 461 of the report:-

"Somewhat closely allied to the point discussed above is the

objection based on the bill in the present case having been passed in
an amended form and not as originally introduced. It is not correct to
say that Article 368 is a complete code' in respect of the procedure
provided by it. There are gaps in the procedure as to how and after
what notice a bill is to be introduced, how it is to be passed by each
House and how the President's assent is to be obtained. Evidently, the
rules made by each House under Article 118, for regulating its
procedure and the conduct of its business were intended, so far as
may he to be applicable. There was some discussion at the Bar as to
whether the process of amending the Constitution was a legislative
process. Petitioner's counsel insisted that it was not and that,
therefore, the legislative procedure prescribed in Article 107, which
specifically provides for a bill being passed with amendments, was
not applicable to a bill for amending the Constitution under Article
368. The argument was further supported by pointing out that if
amendment of such a bill were permissible, it must be open to either
House to propose and pass amendments and in case the two Houses
failed to agree, the whole machinery of Article 368, would be thrown
out of gear, for the joint sitting of both Houses passing the bill by a
simple majority provided for in Article 108 in the case of ordinary
bills would be inapplicable in view of the special majority required in
Article 368. The argument proceeds on a misconception. Assuming
that amendment of the Constitution is not legislation even where it is
carried out by the ordinary Legislature by passing a bill introduced
for the purpose and that Articles 107 to 111, cannot in terms apply
when parliament in dealing with a bill under Article 368, there is no
obvious reason wily Parliament should not adopt on such occasions,
its own normal procedure, so far as that procedure can be followed
consistently with statutory requirements. Repelling the contention
that a Local Government Board conducting a statutory enquiry
should have been guided by the procedure of a Court of Justice, Lord
Haldane observed in Local Government Board v. Arlidge 1915 A C
120:

Its (the Board's) character is that of an organisation with execution

functions. In this it resembles other great departments of the State.
When, therefore, Parliament entrusts .it with judicial duties.
Parliament must be taken in the absence of any declaration to the
contrary, to have intended to follow the procedure which is its own
and is necessary if it is to be capable of doing its work efficiently.'

These observations have application here. Having provided for

constitution of a Parliament and prescribed a certain procedure for
the conduct of its ordinary legislative business to be supplemented by
rules made by each House (Article 118), the makers of the
Constitution -must be taken to have intended Parliament to follow
that procedure, on far as it may be applicable, consistently with the
express provision of Article 368, when they entrusted to it the power
of amending the Constitution."

In the present case, the case of the respondent stands on a much

stronger ground. It is not disputed that the National Assembly of
Pakistan Rules of Procedure were framed by the President pursuant
to Article 231 of the Constitution until the Rules of Procedure .are
made by the Assembly under clause 1 of Article 110. In these rules,
rule 5.7, in Chapter 10 relates to the Amendment of the Constitution.
It is in the following terms:-

"75. Amendment of the Constitution.-In respect of a Bill seeking to

amend the Constitution, the following special rules shall apply in
addition to the Rules of Procedure relating to all Bills in so far they
are not inconsistent with any provision of the special rules-

(i) the Bill shall be put to the Assembly clause by clause unless the
Speaker with the concurrence of the Assembly decides to put the Bill
as a whole:

(ii) if there is a Schedule to the Bill, the Schedule shall be put

separately to the Assembly;

(iii) If a Member requests that any clause or any clause as amended

be put separately, the Speaker shall put that clause or that clause as
amended separately, even if it has been decided earlier to put the Bill
to the Assembly as a whole;

(iv) A clause of the Bill, a Schedule to the Bill or the Bill as a whole
shall be declared as passed only if not less than two-thirds of the
total- number of Members have voted in its favour;

(v) the voting on the Bill shall be by division only;

(vi) in case the President withholds his assent from the Bill after it
has been passed by the Assembly and the Bill is put to a vote a
second time after re-consideration it shall not be declared to be
passed unless not less than three fourths of the total number of
Members of the Assembly have voted in its favour."

It will be noticed that his rule specifically provides that in respect of

a bill seeking to amend the constitution the special rules provided in
it shall apply in addition to the Rules of Procedure relating to
ordinary Bills in so far as they are not inconsistent with any provision
of the special rules. These special rules amongst others provide-

(a) that the Bill shall be declared as passed only if not less than two
thirds of the total number of voters have voted in its favour and
(b) the voting on the bill shall be by division only. Thus in these
special rules sufficient safeguard has been provided to carry, out the
intention of Article 209 of the Constitution. Besides the special rules
themselves provide that the other rules applicable to the passing of
the bills provided in the rules of procedure are also applicable to the
bills relating to the amendment of the Constitution. In this connection
it will be noticed that under rule 152, sub- clause 2 the result of
voting by a division shall be announced by the Speaker and is not
open to challenge. Then under rule 71 "when a bill is passed by the
Assembly and an authenticated copy thereof, signed by the Speaker it
shall be transmitted to the President's Secretariat by the Secretary for
action under Article 27 of the Constitution."

21. From the above discussion there can be no manner of doubt that
the legislative process of the amendment of Constitution starts from
the introduction of the hill in the National Assembly and continuous
up to the stage of the assent by the President. I am, therefore, inclined
to accept the contention of the learned Attorney General that the
Legislative process of giving assent to the constitutional amendments
is part of the proceedings of the National Assembly and immune
from attack under Article 111(1) of the Constitution.

22. In this connection it will be useful to refer to some of the.

Pakistan, Indian, American and English decisions on this aspect of
the case. In Achi v. Lakchmi Achi and others (A I R 1945 F C 25),
the validity of the Hindu women's right to property Act was
challenged. The circumstances which raised doubt as to the validity
of the Act were that the bill which ultimately became law was passed
by the legislative Assembly of the Indian Legislature on 4th February
1937, that is before part 3 of the new Constitution Act came into
operation. But it was passed by the Council of State only on 6th April
1937, that is after part 3 came into operation and it received the
Governor General's assent on 14th April 1937. At the time when the
bill was passed by the legislative assembly, the Central Legislature
had the power to legislate in respect of all property movable or
immovable but by the time it came up for consideration before the
Council of State, the Indian Legislature had been precluded from
dealing with devolution of agricaltura-1 land. It was contended

(a) that on the introduction of the new Constitution it was no longer

open to the Council of State to treat the bill as one which it could
take up for consideration and therefore, the bill could not be deemed
to have been passed by both Chambers of the Indian Legislature;

(b) That on the true construction of section 316 of the Constitution

Act any subsequent enactment of the Indian Legislature would have
validity only if it had been initiated after 1st April 1937 and

(c) that as the Act purports to deal generally with property it was
ultra vires so far as it affected the agricultural land. The question was
further raised that as the bill was passed without amendment, it was
not open to the Court to attempt to give it validity by excluding
agricultural land from its operation. This contention was repelled by
Varadachariar, J., on the ground that whether a bill has been passed
without amendment is a question of fact and it is not open to the
Court to speculate as to what is likely to have teen in the minds of the
members of the Council of State when they dealt with the bill. These
are certainly internal matters beyond the jurisdiction of the Court to
inquire into. "It was further held that "the efficiency and operation of
the Act must be determined with reference to the point of time when
the process of its becoming .a law has been completed," Spens, C. J.,
took a somewhat different view. At page 37 of the report, the learned
Judge observed, after referring to certain passage in May's Treatise
on the Law, privileges, proceedings and use of parliament that "this
passage obviously implies that otherwise a Court might investigate
the alleged irregularity and feel bound to hold the enactment invalid."
But while consi dering the objections the learned Judge at page 38,
column 1, observed as under:-

"Dealing with the last mentioned argument first in my opinion, when

a Court ascertains that a bill has in fact been passed by both
Chambers of the Indian Legislature in exactly the same words and
form and has so been assented to by the Governor-General, it is
impossible and improper for the Court further to investigate whether
each Chamber and the Governor General gave the same meaning and
connotation to the common terms used. In this case the Court is
asked to act on presumption. But if the Court can consider
presumptions it seems to me impossible to exclude cases when
positive evidence might be offered. In some other case the Court
might be asked to act upon allegations of facts that so many
individuals voted upon some misapprehension as to the meaning of
some word or words used so that no real majority was obtained in
favour of a bill in one chamber or the other. How could such an
investigation be conducted? What steps could a Court properly take
to obtain evidence on the maker? I can see no end to the difficulties
which might arise or the con flicts in which Legislatures and Courts
might become involved if the Courts ever assume the right to
investigate what meaning in fact this ok that chamber or individual
members attributed to words or phrases in a bill at the time they
voted in favour of the passing of it. A similar investigation into the
mind of the Governor-General at the time of declaring assent would
be not less improper."

Zafrulla, J. however observed at page 42 of the report that:

"I am unable to accept the contention that the Court is debarred from
investigating whether a piece of Legislation, which appears on the
face of it to have been agreed to by both chambers of the Indian
Legislature without amendment and to have received the assent of
the Governor-General, was or was not validly enacted by reason of
any alleged lack of power or capacity in one or both chambers to
function effectively." The line of argument summarised above does
not raise a mere matter of procedure regulating proceedings in either
chamber of the Legislature. It calls in question the very capacity of
the Legislature to function. The determination of the question raised
does not depend upon the construction of the rule of business or
Standing Orders of the chambers but upon the interpretation of and
the effect to be given to provision of the Constitution Act1from
which the Legislature derives its powers to legislate."

23. The question whether the Courts are competent to scrutinise the
internal proceedings of the assembly was further considered in all its
aspects by the Supreme Court of Pakistan in Pakistan v. Ahmed
Saeed Kirmani (P L D 1959 S C 397). In that case, the Article of the
Constitution under consideration was Article 89 of Pakistan
Constitution 1956, which was in identical terms as the one under
consideration. It is as under:

"Validity of any proceedings in a Provincial Assembly shall not be

questioned in any Court."

In that case, allegations were made of interference with votes of

members in course of the election of the Speaker of the National
Assembly. On facts, the High Court found the allegation to be
baseless but the learned Chief Justice and other Judges of the High
Court expressed the opinion that the immunity attaching to
proceedings of the Assembly, recognised in the above Article was
not absolute. The. High Court held that in a proper-case its writ
jurisdiction could be legitimately invoked where, for instance, so
called proceedings of the Assembly are really outside the purview of
the Constitution. This view came up for consideration in the above
case. Their Lordships of the Supreme Court commenting upon it
observed at page 415 of the report as under:-

"This statement taken by itself is unexceptionable, provided it is

clearly understood that any proceedings which can fairly be
described as "internal proceedings" relating to the proper business of
the House are wholly outside the corrective jurisdiction of the High
Court. The means of correction which are contemplated by a
Constitution providing for a form of Parliamentary Government are,
in matters of this kind involving coercion or mala fides, exclusively
of political kind. The very high authority vested in a Provincial
Legislative Assembly which can make and unmake law is to be
exercised by the method of. decision `to be taken by a majority of the
members present and voting'. It appears to me to be unconceivable
that a decision .so taken, where the division of members of the House
is on party lines, can be subjected to examination and either
confirmation or rejection by the integrity of the very fabric upon
which the constitution is based. Either the authority of the Legislative
Assembly which is to be asserted by the fact of a majority of the
members being in favour of a proposition, will be irretrievably
destroyed in the process, should the Courts prevail, or in the
alternative, the authority and the whole standing of the Courts will be
incurably diminished and the high position which is given to them in
the balance of powers within the Constitution will be prejudiced in
such a way as to render their functioning nerveless and even possibly
of danger to the body politic, were they ever to attempt to resolve
disputes between contending political parties inside the House, on the
basis of justice, equity and good conscience. The constitutional
provision being that an Assembly shall function by the method of
recording majority votes and the recording of such votes being
governed by the statutory procedures which ' makes it entirely an
internal proceeding of the House, it is to be regarded as a
requirement of the Constitution that the manner of procurement of
such a majority within the House shall not become the subject-matter
of scrutiny and determination by the Courts."

The observations of Kayani, J., as he then was that:

"In short, I do not recognise a proceeding as an Assembly proceeding

if it is found on coercion, fraud or bad faith"

were also disapproved by their Lordships on the following

observations

"With great respect, and bearing in mind that I have already

expressed my opinion on this point, it seems to me that to invoke
principles of justice, equity and good conscience as known to, the
Courts and as applied by the Courts to the resolution of matters lying
between individuals or between individual subjects and the State,
into the formation of majorities for the purpose of a decision by an
Assembly, is to ignore the realities of the matter and involves a risk
of grave injury in the compromise, represented by the Constitution,
between the great powers, whose equilibrium inter se is the only
guarantee of the freedom and well being of the country. All the evils
to which the learned Judge has referred in the cases cited above have
appeared from time to time in the functioning of popular assemblies
all over the world. The modes of correction of such matters,
appearing in the conduct of a body which is uncontrollable by any
other body or authority in the State, can only be applied by that body
itself. It may be that for this purpose, the Courts must wait until a
change of outlook, or the appearance of conscience, supervenes. It is
obvious that no such change of outlook or birth of conscience can be
brought about by any action within the competence of the Courts. It
is upon those grounds that, speaking with respect, it is impossible for
me to give my assent to the following further proposition laid down
by the learned Judge."

Their Lordships further held at page 418 that

"If a proceeding is an internal proceeding of a Provincial Legislative

assembly and relates to its proper business, then under Art. 89 it must
be recognised as such by the Courts, and the Courts must refrain
from interfering with it."
Two important principles emerge from the above decision. Firstly,
that the question of recording of votes being governed by statutory
procedure makes it entirely an internal proceeding of the House, and
it is to be regarded as a requirement of the Constitution that the
manner of procurement of majority within the House shall not be
subject of scrutiny and determination by the courts. Secondly, that
the Courts should not fail to recognise a proceeding as an assembly
proceeding even if it is found on coercion, fraud or bad faith.

24. This point came up for further consideration before a Full Bench
of this Court at Lahore in the case of Mobinul Haq Siddiki v.
Muhammad Iqbal, Speaker of the Provincial Assembly, West
Pakistan (L P D 1964 Lah. 23). In that case Mr. Mobinul Haq who
claimed to be the speaker of the Provincial Assembly prayed that the
respondents be directed by the High Court to assist him in the
performance of his duties and exercise of his rights and privileges
and should not interfere with his functioning as such. It was alleged
by him that after he had adjourned the House the other officers of the
Provincial Assembly illegally called a meeting of the assembly and
removed him without lawful authority. It was urged before this Court
that the question raised by Mr. Mobinul Haque related to the internal
proceedings of the assembly and this Court could not interfere with
it. Their Lordships accepted this contention following the view taken
by the Supreme Courts of Pakistan in the above case. In that case the
Full Bench was considering the effect of Article 111 of the present
Constitution and upheld the objection raised on behalf of the
respondent that as the dispute related to the internal proceedings of
the assembly the Court had no jurisdiction to interfere with it. Their
Lordships further held that the High Court was only competent to
consider whether the proceedings whose validity is challenged is
fairly within the meaning of the expression "internal proceedings" of
the assembly. Once they come to the conclusion that it is an internal
proceeding of the assembly their jurisdiction to proceed further to
consider its validity is barred under Article 111 of the Constitution.
Mr. Qasuri made an attempt to distinguish the Supreme Court case
on the ground that the discussion in it is obiter dicta and has no
application to the case of an Assembly which is functioning under a
Presidential system of constitution. In my view none of the grounds
is tenable. Even an obiter of the Supreme Court is binding on this
Court. Besides in Badrul Haque Khan v. Election Tribunal Dacca (P
L D 1963 S C 704) at page 723, Cornelius C. J. repelled a similar
contention holding that "the new National Assembly performs very
much the same function in the Constitution of 1962, as the proposed
National Assembly under the 1956 Constitution".

25. In the Indian Courts too the same view has been taken. In M. S.
M. Sharma v. Dr. Shree Krishna and others (A I R 1960 S C 1186) it
was held that the validity of the proceedings inside the Legislative
Council cannot be called in question on the allegation that the
procedure laid down by law had not been strictly followed. In V.
Ramchandra Rao and others v. Andhara pradesh Regional
Committee (A I R 1965 Andhara 306) an injuction was claimed by
five members of the legislative assembly against the Government in
power restraining them from presenting a bill passed by the
Provincial Assembly to the Governor for assent under Article 200 of
the Indian Constitution. It was contended on behalf of the members
that the bill in question could not be considered by the Provincial
Assembly without obtaining the opinion of the Regional Committee
formed by the Governor under Article 371(1) of the Indian
Constitution as the meeting in which the Regional Committee
considered the implications of the bill was invalid because some of.
its members were not informed about the date of the meeting. Nair, J.
rejected this plea on the ground that presentation of a bill for assent
under Article 200 of the Indian Constitution to the Governor is a
legislative process beginning with the introduction of a bill in a
House of Legislature and ending with the submission to the Governor
of the Bill passed by both Houses of Legislature and the assent of the
Governor to it. In such continuous legislative process there can be no
interference or intervention of the executive or by the Courts. In
Edinburg Railway Co. v. Wanchope (8 E R 279) an Act of
Parliament was held inoperative by the subordinate Court because
the form prescribed by the two Houses to be observed in the passing
of a bill have not been exactly followed. In this connection Lord
Campbell observed at page 285 as under

"I cannot but express my surprise that such a notion should ever have
prevailed. There is no foundation whatever for it. All that a Court of
Justice can do is to look to the parliamentary roll if from that it
should appear that a bill has passed both Houses and received the
Royal assent, no Court of Justice can inquire into the mode in which
it was introduced into parliament, nor, into what was done previous
to its introduction or what passed in Parliament during its progress in
its various stages through both Houses."

In Willoughby on the "Constitution of the United States", Vol. 2, at

page 652 the following statement of law appears under the heading
"Conclusiveness of the Record of Congressional proceed ings".

"In United State v. Ballin the evidential value of records of

congressional proceedings was again considered. The points involved
and their decision sufficiently appear from the following quotation
from the opinion : "Two questions only are presented: First, was the
Act of May 9, 1890, legally passed and Second, what is the
meaning ? " The first is the important question. The enrolled bill is
found in the proper office that of the Secretary of State, authenticated
and approved in the customary and legal form. There is nothing on
the face of it to suggest any invalidity. Is there anything in the facts
disclosed by the journal of the House, as found by the general
appraiser, which vitiates it ? We are not unmindful of the general
observation found in Gardner v. Barny (6 Wall. 499) that whenever a
question arises in a Court of law of the existence of statute, or of the
time when a statute took effect, or the precise terms of statute, the
judges who are called upon to decide it have a right to resort to any
source of informa tion which in its nature is capable of conveying to
the judicial mind a clear and satisfactory answer to such question ;
always seeking first for that which in its nature is most appropriate,
unless the positive law has enacted a different rule. And we have at
the present term, in the case of Field v. Clark, had occasion to
consider the subject of an appeal to the journal in a disputed matter
of this nature. It is unnecessary to add anything here to that general
discussion. The Constitution (Article 1, Section 5 ) provides that
`each House shall keep a journal of its proceedings; and that the yeas
and nays of the members of either House on any question shall at the
desire of one-fifth of those present, be entered on the journal.
`Assuming that by reason of this latter clause reference may be had
to the journal, to see whether the yeas and nays were ordered, and if
so what was the vote disclosed thereby'; and assuming, though
without deciding, that the facts which the Constitution requires to be
placed on the journal may be appealed to on the question whether a
law has been legally enacted, yet if reference may be had to such
journal, it must be assumed to speak the truth. It cannot be that we
can refer the journal for the purpose of impeaching a statute properly
authenticated and approved and then supplement and strengthen that
impeachment by parol evidence that the facts stated on the journal
are not true, or that other facts existed which, if stated on the journal
would give force to the impeachment".

In Flint v. Stone Tracy Co., the Court, though referring to Journals of

Congress as showing the House in which an act had originated, said:
"In thus deciding we do not wish to be regarded as holding that the
Journals of the House and Senate may be examined to in validate an
act which has been passed and signed by the presiding officers of the
House and Senate, and approved by the President, and duly deposited
with the State Department". It is difficult, however, to see how the
Court will be otherwise able to satisfy itself as to whether acts of
Congress in the process of their enactment have conformed to
constitutional requirements. The only other alternative is for the
Court to bold that the fact that a law has been signed by the presiding
officers of the two Houses, approved by the president, and by him
deposited as statute with the Department of states, is conclusive
evidence that all the constitutional requirements regarding the
processes of legislation,-existence of a quorum, the necessary
approving vote, etc.-have been observed". Mr. Qasuri has made an
attempt to distinguish these cases on the ground that omission of
Article 216 (2) of 1956 Constitution which is in the following terms

"216 (2). A certificate under the hand of the Speaker of the National
Assembly that a Bill has been passed in accordance with the
provisions of clause (1) shall be conclusive, and shall not be
questioned in any Court"

is a significant omission. His argument is that formerly the certificate

of the speaker that a bill has been passed in accordance, with law was
conclusive and not questionable in any Court, but in the present
constitution it had been deliberately omitted. I would not attach any
importance to this circumstance because no such intention can be
imputed to the framers of the Constitution.) As held by the Supreme
Court in Government of Pakistan v. Akhlague Hussain (P L D 1965
S C 527) at page 529.

"It is going altogether too far to say that by implication from mere
omission of the express bar provided by an earlier super seded
Constitution, the intention of the 1962-Constitution was that the
Retired Judges (Legal Practice) Order, 1962 should for all time
remain permanent and unchanged on the statute book. The terms of a
Constitution are to be applied according to their tenor, giving the
expressions used the widest meaning in the context, but an earlier
Constitution is not part of the context, and to refer to it for enlarging
the meaning of the existing Constitution, or importing intention into
it, does not seem to be permissible."

26. Before passing on to the next point it is necessary to consider the

effect of the decision of the Supreme Court in A. K. Fazlul Qader
Chowdhry v. Syed Shah Nawaz etc. (P L D 1966 S C 105) on the
facts of this case. In that case one Shah Nawaz's seat in the National
Assembly was declared vacant by the Speaker on the basis of a letter
of resignation addressed to the President. A plea was taken that the
matter was not justifiable in view of the bar of jurisdiction raised by
Article 111 of the Constitution. Their Lordships repelled this
contention on the ground that it related more to the Constitution of
the Assembly itself in so far as the point required the interpretation of
the relevant provision of the Constitution to find out whether a sitting
member's seat had become vacant or not. In this connection Mr.
Qasuri relied on the following passage at page 113 of the report :-

"Indeed, the High Court's jurisdiction is eminently invokable under

Article 98 to correct any error of law or any transgres sion of
jurisdiction by any person or authority in circums tances akin to
those prevailing in the instant case so long as the order to be passed
is not repugnant to any other provision of the Constitution. No such
danger exists here. The Constitution contains a scheme for the
distribution of powers between various organs and authorities of the
State, and to the superior judiciary is allotted the very responsible
though delicate duty of containing all other authorities within their
jurisdiction by investing the former with powers to intervene
whenever any person exceeds his lawful authority. Legal issues of
the character raised in this case could only be resolved in case of
doubts or dispute, by the superior Courts exercising judicial review
functions, assigned to them by the fundamental law of the land, viz,
the Constitution which must override all other sub-constitutional
laws. The Judges of the High Court and of this Court are under a
solemn oath to "preserve, protect and defend the Constitution" and in
the performance of this onerous duty they may be constrained to pass
upon the actions of other authorities of the State within the limits set
down in the Constitution, not because they arrogate to themselves
any claim of infallibility but because the Constitution itself charges
them with this necessary function, in the interests of collective
security and stability. In this process, extreme and anxious care is
invariably taken by the Judges to avoid encroachment on the
constitutional preserves of other functionaries of the State and they
are guided by the fullest and keenest sense of responsibility while
adjudicating on such a matter."

27. Mr. Qasuri replying on these observations contended that the

petitioners are not challenging any proceedings of the National
Assembly. Their grievance is that the impugned legislation cannot be
said to have been passed as the requisite number of votes necessary
under Article 209 has not supported it and is of no legal effect. This
point has already been discussed at length. In the present case the
challenge is in respect of something that happened inside the
chamber, namely the act of voting of the respondent members. It is
alleged that the votes of the respondent members should not have
been counted in support of the impugned legislation notwithstanding
fact that their names appeared on the roll of the Assembly maintained
under Rule 15 of the Rules of Procedure and despite the fact that
their seats had not been declared vacant. It cannot be doubted that it
is an indirect attack on the validity of the proceedings of the National
Assembly dated 14-6-1965. It is settled law that what is not
permissible to be done directly cannot be permitted to be done
indirectly I am satisfied that it is not one of those cases in which the
jurisdiction of this Court has been invoked to correct an error of law
or any transgression of jurisdiction by any authority. In the light of
the above discussion it is perfectly clear to me that the nature of the
objections raised on the validity of the impugned legislation falls
within the ambit of the provisions of Article 111 (1) of the
Constitution. It seems to me that both the act of voting and right to
vote of a member being activities inside the Legislature forms part of
the internal proceed ings of an Assembly. In my opinion the
Legislative process of an enactment begins from the time of the
introduction of the bill in the H,)use of the Legislature and continues
till it is passed ending with the submission of the passed bill to the
president under Article 27 of the Constitution for his assent. It further
appears to me that the constitutional amendments under Article 208
being an Act of the Central Legislature have also to be assented to
under Article 27 of the Constitution subject to Article 209 of the
Constitution. In other words ordinary legislation is to be assented to
if passed by majority of votes, but constitutional legislation if it is
passed by not less than two-thirds of the total number of the members
of the National Assembly. The question whether the requisite number
of votes have been cast under Article 209 will be determined in the
same manner as the question whether a bill has been passed by
majority of votes. The relevant rules applicable fer such purpose are
Rules 152 and 71 framed by the President pursuant to Article 231 of
the Constitu tion. In my view by applying these rules to a bill falling
under Article 209 of the Constitution, cannot be said to be in any way
rendering it as ineffective Constitutional provision because every
provision of the constitution is to be interpreted in a liberal manner in
order to effectuate the intention of the framer of the Constitution and
to ensure the smooth and satisfactory function ing of the different
organs of the State. In this view of the matter I would hold that it is
not open to this Court to consider the validity of the impugned
legislation on the alleged ground of disqualification of the respondent
members.

28. Moreover, even if it be held that the jurisdiction is not barred to

consider the validity of the proceedings of the National Assembly for
finding out the necessary approving votes the next question for
consideration is whether the Court is competent to determine the
qualification or disqualification of respondents Nos. 4 to 38. The
objection of the respondents is that in so far as the petition involves
the attack and objection as to the election of the above respondents
the Court's jurisdiction is barred where the purpose of the
proceedings is directly to challenge the rights of the said persons to
be members of the National Assembly or to challenge their rights for
a collateral or ulterior purpose, namely, collateral attack on the
constitutionality of an enactment. In this connection, it will be
noticed that the qualification and disqualification of the members for
election to the National and Provincial Assemblies is contained in
unamended Article 103 of the Constitution which is in the following
terms

"103 (1). Except as provided in this Article a person is qualified to be

elected as, and to be, a member of an Assembly if-

(i) in the case of the National Assembly on the electoral roll for any
electoral unit; or
(ii) in the case of the Assembly of a Province on the electoral roll for
an electoral unit in the Province; and

(b) he is not less than twenty-five years of age.

(2) A person is disqualified from being elected as, and from being, a
member, of an Assembly if-

(a) he holds an office-of profit in the service of Pakistan ;

(b) he is an un-discharged insolvent;

(c) he has, within the previous period of five years, been con victed
of an offence by any Court and sentenced to transporta tion or to
imprisonment for not less than two years or been sentenced to death
and that sentence has been commuted to transportation or
imprisonment;

(d) he has ceased to be a citizen or has affirmed allegiance to a

foreign State; or

(e) he is otherwise disqualified from being a member of that

Assembly by this Constitution or by or under any law.

(3) Notwithstanding paragraph (a) of clause (2) of this Article, the

President, a Governor or a Minister is qualified to be elected as a
member of an Assembly but if he is so elected, he is not qualified to
be a member of the Assembly until he ceases to bold office as
President, Governor, or Minister."

According to this constitutional provision there are some basic

qualifications which are necessary for a person to qualify himself to
be elected as a member of the Assembly. It is not disputed that the
elections for the National Assembly were held under the National
and Provincial Assemblies (Elections) Act, 1964 which was enacted
under Article 164 of the Constitution. According to Article 171 of the
Constitution no dispute arising in connection with an election or
referendum required to be held under the Constitution can be decided
otherwise than under the law provided for it, and the validity of such
election or referendum cannot be called in question except in
accordance with such law.

In order to appreciate the contention raised by the parties it will be

useful to reproduce Article, 171 of the Constitution :-

"171. (1) Subject to clause (2) of this Article, provision may be made
by law-

(a) for disputes arising in connection with the counting of votes at an

election or referendum required to be held under this Constitution to
be finally determined by the Commissioner or an Election
Commission; and

(b) for other disputes arising in connection with such an election or

referendum to be finally determined by a tribunal established for that
purpose,

and no dispute arising in connection with such an election or

referendum shall be decided otherwise than under such a law, and the
validity of such an election or referendum shall not be called in
question except in accordance with such a law.

(2) When a person has been declared to have been elected as

President, the validity of the election shall not be called in question
in any manner before or by any Court or authority whatsoever.

(3) The validity of anything done by the Commissioner under Article

160, 161 or 162 shall not be called in question in any manner before
or by any Court or authority whatsoever."

It is also not disputed that there are two stages at which it is open to
the contesting candidate to challenge the qualification or
disqualification of a person who is nominated as a member of an
Assembly. In the first instance, qualification or disqualification is
open to scrutiny under section 14 of the National and Provincial
Assemblies Election Act. If an objection is found to be valid, the
Returning Officer may, either of his own motion or upon an
objection raised before him reject the nomination paper after
summary enquiry on the ground that the candidate is not qualified to
fill the seat for which he has been nominated. The second
opportunity is available after a person has been elected as a member
of the National or Provincial Assembly. Under section 57 of the said
enactment it is open to any candidate to file an election petition
challenging an election for which he was 'a candidate on one or more
of the grounds mentioned in section 72 which also includes the
ground that the returned candidate was not on the nomination day
qualified for or disqualified from being elected to the seat in
question. Section 52 of the said enactment provides that save as,
provided under section 53 no election shall be called in question
except by an election petition under section 57 of the said Act. There
can, therefore, be no doubt that pre-election qualification or
disqualification of a person has been provided for in the said
enactment which is the only mode for resolving the disputes arising
in connection with such election. The conten tion of the 'learned
Attorney General and the other learned counsel appearing on behalf
of the respondents, that the dispute arising in connection with the
election of the National Assembly or Provincial Assemblies cannot
be challenged under Article 98 of the Constitution is supported by a
recent decision in the case of Janal Shah v. Election Commission. In
that case Cornelius, C. J. who wrote the leading judgment observed:

" ..on a true construction of the terms of Article 171 (1) of the
Constitution, giving them their full effect when regarded against the
background of the past history of the law on the subject, under which
election disputes have always been treated as being outside the
purview of the Courts in the territories included in Pakistan, except
for the short period that the Constitution of 1956 was in force, the
power of final determination by the authorities specified under that
Article, must be allowed to prevail as against the general power of
correction given to the High Court under Article 98."

This view is also shared by the other learned Judges. But in other
judgments an exception is made in those cases in which it is found
that the authorities or the Election Tribunal function ing under the
relevant Act have failed to exercise or exceeded in the exercise of the
jurisdiction vested in them, or if the order is found to be mala fide. In
such case the jurisdiction of the High Court under Article 98 of the
Constitution can be invoked for obtaining appropriate relief within its
limited scope. The consensus of opinion, however, expressed in the
above case is that the High Court is not competent to interfere with
the decisions of the Election Tribunals and Election Commissioner
on the ground of error apparent on the face of the record.
Immediately thereafter the point was further considered in another
decision of the Supreme Court in Akbar ali v. Raziur Rehman
Khawaja etc. (P L D 1966 S C 492). In which it is opined that the
decision in Mian Jamal Shah's case is not to the effect that an
untenable interpretation of law by the Commission which may
amount to excess of jurisdiction or failure to exercise jurisdiction is
not susceptible of interference by the High Court. Their Lordhsips
have observed that if on election authority or Tribunal acts in a
wantonly fashion whether under the National and Provincial
Assemblies (Elections) Act or under the Electoral College Act the
decision in Mian Jamal Shah's case would not be an authority for the
view that their decisions are sacrosanct and cannot be called in
question in the High Court. According to the above authoritative
decision the indisputable position is that the pro visions of Article
171 of the Constitution read with sections 53 and 57 of the National
and Provincial Assemblies (Elections) Act exclude the jurisdiction of
the High Court under Article 98 of the Constitution to entertain
disputes arising in connection with an election held under the
Constitution. The reasoning behind this principle is that since the
Legislatures, have to perform important functions in democratic
countries it has always been recognised to be a matter of first
importance that elections should be concluded as early as possible
according to the time Schedule and all controversial questions and all
disputes arising out of election should be decided and settled in
accordance with the law provided for it. This again is based on the
well recognised principle that it is the Legislature which creates the
right And it is its sole right to examine and determine all matters
pertaining to the election of its own members and if the Legislature

takes it out of its own hand and vests it in a Special Tribunal that
special jurisdiction should be exercised in accordance with the law
which creates it.

29. In the light of the above discussion it is abundantly clear that so

far as the dispute of pre-election qualifications or disqualifications of
Respondents 4 to 38 is concerned, it could only be determined in
accordance with the National and Provincial Assemblies (Election)
Act 1964 and the High Court in its jurisdiction under Article 98 of
the Constitution is not competent to determine such disputes.
30. Mr. Mahmudali Qasuri however contended that it is not one of
those cases where the disqualification existed only prior to election.
It is a continuous disqualification and therefore the dispute about the
post election disqualification of the said res pondents can be
determined under Article 98. (2) (b) (ii) which is in the following
terms:

"98 (2) (b) (ii):

Subject to this Constitution, a High Court of a Province may, if it is

satisfied that no other adequate remedy is provided by law--

(b) on the application of any person make an order-

(ii) requiring a person in the Province holding or purporting to hold a

public office to show under what authority of law he claims to hold
that office.

In support of his contention the learned counsel has relied on the

observations of Hamoodur Rehman J. in Fazlul Qadar Chaudhry v.
Muhammad Abdul Haque (P h. h 1963 S C 486). In that case His
Lordship observed at page 542 as under:-

"1f the Ministers were holding office without any lawful authority,
their continuance in. office was in the nature of a continuing wrong
giving rise to a cause of action de die in diem and, therefore, there
could be no question of any laches. In any event, on questions
relating to the constitutionality of actions the ground of ]aches cannot
prevail, for there can be no estoppel against the Constitution and an
act which is unconstitutional cannot become constitutional by lapse
of time, nor can it vest anyone' with any kind of legal right to benefit
from such an unconstitutional act."

In my opinion the contention of Mr. Qasuri that in respect of

continuous disqualifications the jurisdiction of the High Court under
Article 98 has not been taken away is not without force. There is
abundant authority for the proposition that where there is a
continuing disqualification the right to hold the office may still be
questioned by quo warranto. This view is supported by a case of the
English Courts in The King v. Beer ((1903) 2 K B 693). In that case
a debtor was adjudicated a bankrupt in April 1899; and in the
following July obtained an order of discharge subject to suspension
for two years and a half, which came into operation in January 1902.
In November 1902, an election was held of councilors for a
-municipal borough, at which he was nominated and declared
elected. An objection was raised on the ground that a debtor who is
adjudged bankrupt is disqualified for being elected to or holding the
office of councilor. The contention that the remedy by quo warranto
was taken away by section 87 of the Municipal Corporation Act,
1882 was repelled. It was held that it is taken away only in those
cases where the election is questioned on the ground of
disqualification for election, and that bankruptcy being by section 32
of the Bankruptcy Act, 1883, disqualification not merely for election,
but also for "holding" the office of councilor, quo warranto would lie.
In this connection Channell J. at page 700 observed:

"The question, therefore, is whether a disqualification by reason of

bankruptcy, which existed before and at the time of the election, is a
disqualification for "holding" the office of councilor, or whether the
disqualification for "holding" it only arises where bankruptcy takes
place after the election. That depends on the proper interpretation of
section 32 of the Bankruptcy Act, 1883, which disqualifies a
bankrupt for "being elected to, or holding, or exercising" the office.
If that section means that a person is disqualified from being elected
to the office if the bankruptcy has 'taken place before the election,
and from holding the office if the bankruptcy happens after wards, it
seems unnecessary, because that had already, been dealt with by
section 39 of the Act of 1882. The proper construction of the section
is, I think, that the period of five years from the discharge (fixed by
section 9 of the Bankruptcy Act, 1890) a bankrupt is disqualified
both from being elected to the office and from holding the office if
elected to it, and therefore necessarily from exercising it. If that is the
true meaning of the section, everything also seems to follow. There is
a councillor de facto holding an office which he is disqualified for
holding; the only and proper remedy is by quo warranto, which
judgment of, ouster will be obtained; and then steps may be taken to
obtain a mandamus to hold an election."

31. This view is also shared by two Division Bench decisions of this
Court, namely, Munir Ahmad v. Returning Officer, Karachi and
others (P L D 1966 Kar. 1) and Allah Ditta v. Muhammad Munir and
others (P L D 1966 Lah. 770). The last mentioned case is more in
point. It was held in that case that in a case of continuing
disqualification remedy under Article 98 of the Constitution is
available. At page 777, Mahmud, J. observed:

"The respondent was elected to the Electoral College, although he

lacked the necessary qualification provided by the Constitution. His
remaining a member of the Electoral College is a continuing
violation of the provisions of the Constitution and, therefore, the
remedy, in Article 98 (2) (b) (ii) is available to the petitioner and
cannot be denied to him. If he did not avail of the remedy by way of
election petition the proceedings that he has taken do not become
incompetent. It should not be ignored in -this context that what the
petitioner seeks to challenge before us is not only the election of the
petitioner, but his continuing as a member of the Electoral College
and a member of the Basic Democracies. The basis of his challenge
is Article 158 (1) of the Constitution."

32. In reply Haji Ghias Muhammad the learned Attorney General

contended that if the Constitution has not provided any remedy for a
pre-election qualification which, continues after a person has been
duly elected to the office of a member of the National Assembly, it is
not open to this Court to provide a remedy for this purpose. In this
connection. Dr. Nasim Hussain Shah, the learned counsel for one of
the respondents, further referred us to a decision of a Division Bench
of this Court to which one of us was a party in Ahmad Saeed
Kirmani v. Muhammad Nawaz, Cheema, P. C. S. and another (P L D
1966 Lab. 88). It was held in that case that Article 171 of the
Constitution was a complete bar to the writ petition as the dispute
canvassed in the petition related to the process of election, being one
preliminary link in the whole chain of election and as laid down in
the express words employed by Article 171 it had to be decided in
accordance with the law laid down for election disputes and in no
other way. Their Lordships further observed that "if the relevant law
does not provide a remedy for the wrong which has been allegedly
done to the petitioner, it is not for the Court to create a remedy for
him as the matter has to be decided entirely on the law bearing on the
subject, as envisaged by Article 171 of the Constitution. The
Legislature in its wisdom may not have considered a wrong of the
type as alleged by the petitioner to be one for which a remedy need
be provided by way of an election petition or otherwise. There are
instances . in several laws where the decisions by an authority are
made final, not subject to any appeal or review by higher Courts and
unless it is shown that such an order by the authority concerned
suffers from a defect of jurisdiction or is mala fide in character, it is
not amenable to challenge even in writ jurisdiction of the superior
Courts. "This case is distinguish able because it was not a case
calling upon the member of the National Assembly to show his
authority on the basis of which he was holding a public office. On the
other hand, in that case certain violations of the provisions of section
12 read with section 14(3) of the National and Provincial Assemblies
(Elections) Act, 1964 were alleged. These observation were therefore
in a diffe rent context and have no bearing on the facts of the present
case. The learned Attorney-General further relied on a decision of the
Indian Supreme Court in the case of Election Commission v. Saka
Venkata Rao (A I R 1953 S C 210). In that case the respondent was
convicted by the Sessions Judge of East Godavari and sentenced to a
term of seven years R. I. in 1942, and he was released on. the
occasion of the celebration of the independence Day on 15-8-1947.
In June 1952 there was to be a by-election to a reserved seat in the
Kakinada constituency of the Madras Legislative Assembly and the-
respondent desiring to offer himself as a candidate but finding
himself disqualified under section 7 (b), Representation of the People
Act, 1951, as five years had, not elapsed from his release, applied to
the Commission on 2nd April 1952, for exemption so as to enable
him to contest the election. No reply to the application having been
received till 5th May 1952, the last day for filing nominations, the
respondent filed his nomina tion on. that day, but no exception was
taken to it either by the Returning Officer or any other candidate at
the scrutiny of the nomination papers. The election was held on 14th
of June 1952, and the respondent, who secured the largest number of
votes was declared elected on 16-6-1952, as member of the Mardas
Legislature. On 27th June 1952, the respondent took his seat as a
member of the said Assembly. Meanwhile the Commission rejected
the respondent's application for exemption and com municated such
rejection to the respondent by letter dated 13-5-1952. On 3-7-1952
the Speaker of the Assembly referred the question to the Governor of
Madras who forwarded the case to the Commission for its opinion as
required by Article 192 of the Indian Constitution. The respondent
objected to the competency of the reference but the Chief Election
Commissioner did not agree with this contention. Thereupon he filed
a writ petition in the High Court under Article 226 of the Indian
Constitution contending that Article 192 of the Constitution was
applicable only` where a member became subject to a
disqualification after he was elected but not where, as here, the
disqualification arose long before the election, in which case the only
remedy was to challenge the validity of the election before an
Election Tribunal. A learned single Judge of the Madras High Court
allowed this petition. The matter was taken up to the Supreme Court
which, though holding that the Madras High Court had no
jurisdiction in the matter, considered the question on merits and came
to the conclusion that the Governor was not competent to refer the
matter to the Election Commission and held that the Chief Election
Commissioner had no jurisdiction in the matter. The decision is
important, for more than one reason. It will, therefore, be useful to
reproduce the observations of Patanjali Sastri, C. J. on the contention
raised by the parties at page 215 of the report:-

"Article 191, which lays down the same set of disqualifications for
election as well ,as for continuing as a member, and Article 193
which prescribes the penalty for sitting and voting when disqualified,
are naturally phrased in terms wide enough to cover both pre-existing
and supervening disqualification; but it does not necessarily follow
that Articles 190 (3) and 192 (1) must also be taken to cover both.
Their meaning must depend on the language used which, we think, is
reasonably plain. In our opinion these two articles go together and
provide a remedy when a member incurs a disqualification after he is
elected as a member. Not only do the words "becomes subject" in
Article 190 (3) and "has become subject" in Article 192 (1) indicate a
change in the position of the member after he was elected, but the
provision that his seat is to become thereupon vacant, that is to say,
the seat which the member was filling therefore becomes vacant on
his becoming disqualified, further reinforces the view that the article
contemplates only a sitting member incurring the disability while so
sitting. The suggestion that the language used in Article 190 (3) can
equally be applied to a pre-existing disqualification as a member can
be supposed to vacate his seat the moment he is elected is a strained
and far-fetched construction and cannot be accepted. The Attorney
General admitted that if the word "is" were substituted for "becomes"
or "has become" it would more appropriately convey in the meaning
contended for by him, but he was, unable to say why it was not used.

(15) It was said that on the view that Articles 190 (3) and 192 (1)
deal with disqualifications incurred after -election as a member, there
would be no way of unseating a member. who became subject to a
disqualification after .his nomination and before his election, for,
such a disqualification is no ground for challenging the election by
an election petition under Article 329 of the Constitution read with
section 100 of the Representation of the People Act, 1951. If this is
an anomaly, it arises out of a lacuna in the latter enactment which
could easily have provided for such a contingency, and it cannot be
pressed as an argument against the respondent's construction of the
Constitutional provisions. On the, other hand, the Attorney-General's
contention might, if accepted, lead to conflicting decisions by the
Governor dealing with a reference under Article 192 and by the
Election Tribunal inquiring into an election petition under section
100 of the Parliamentary stature referred to above.

(16) For the reasons indicated we agree with the learned Judge below
in holding that Articles 190 (3) and 192 (1) are applicable only to
disqualifications to which a member becomes subject after he is
elected as such, and that neither the Governor nor the Commission
has jurisdiction to enquire into the respondent's disqualification
which . arose long before his election.

(17) As, however, we have held that the High Court was not
competent under Article 226 to issue any prerogative writ to the
appellant Commission, the appeal is allowed and the writ of
prohibition issued by the learned Judge is quashed. We make no
order as to costs."

In my opinion this case is also distinguishable because the question

was not raised before the High. Court under Article 226 in its
quo warranto jurisdiction. It is quite correct that the Indian Supreme
Court did not attach any importance to the circumstance that there
was no way of unseating a member who became subject to a
disqualification after his nomination and before his election on the
ground that if it was an anomaly it arose out of lacuna in the relevant
election law which could easily have provided for such a
contingency, and it cannot be pressed as argument against the
respondent's construction of the constitutional provisions. In my
opinion this case helps the Attorney-General only to this extent that a
mere continuous disqualification of a person would not render his
seat as vacant. It would be necessary to determine the nature of his
disqualification and then alone his seat can become vacant.
33. In the Constitution of 1962 also disqualification in respect of
holding "office of profit" in the service of Pakistan under Article 103
is both in respect of from being elected as, and from being, a member
of an Assembly. There is a remedy provided for pre-election
disqualification, namely, under the relevant election laws, but since
the petitioner was not competent, to file any such petition no such
objection could be raised ; in fact that remedy is no longer available
to any of the parties. So far as post election disqualification are
concerned, they are dealt with under Article 104 of the Constitution.
Under Article 104 (1), as unamended, in cases where a member of an
assembly is elected as- President or appointed as a Governor or
Minister or to any other office of profit in the service of Pakistan he
shall cease to be a member of the Assembly on the day on which he
enters upon his office. Thus it is a case of automatic disquali fication.
In other cases if any question arises whether a member of an
Assembly has, after his election, become disqualified from being a
member of the Assembly, like the Indian law, the Speaker of the
Assembly shall refer it to the Chief Election commissioner and if the
Chief Election Commissioner is of the opinion that the member has
become disqualified the member shall cease to be a member. This is
provided in Article 104 (2) of 1962 Constitution. But this provision
also is not applicable to the cases of Respondents 4 to 38 because it is
not a case of disqualification that occurred after their election. It is a
pre-election disqualification which continued even after the election;
and therefore it is like one of those cases which was before the Indian
Supreme Court. The learned counsel for the parties conceded that in
such cases no remedy has been-provided under the Constitution nor
under any law framed under it. In my opinion, Article 98 (2) (b) (ii)
is meant for such cases. As there is no remedy available it can be
invoked because it speci fically provides that any person may ask for
an order requiring a person in the Province holding or purporting to
hold a public office to Show under what authority of law he claims to
hold that office. Undoubtedly Respondents 4 to 38 being members of
the National Assembly are holding a public office and therefore their
case could be covered by this provision. In the absence of any bar in
the Constitution in this respect I am clearly of the view that in the
case of continuous disqualifications about which no remedy has been
provided by the constitution, it is open to any person in Pakistan to
invoke the jurisdiction of this court under Article 98 of the
Constitution for finding out the authority of a person to hold any
public office in the Province.

34. Unfortunately, the view taken by me in this regard is of no help

to the petitioners. In the first place they have not filed any, petition
under Article 98 (2) (b) (ii) of the Constitution Secondly, even
relying on the decision of Hamoodur Rehman, J. in Abul A'la
Maudoodi v. Government West Pakistan (P L D 1964 S C 673) that it
is open to this Court to grant appropriate relief that the justice of the
cause may require, the grant of any relief in the nature of a writ of
quo warranto would not produce any effective result, because even if
it is found that respondents 4 to 38 are holding "office of profit" in
the service of Pakistan their seat can be declared as vacant from the
date of the order of this Court and not from any prior date. I find
much force in the contention of Dr. Naseem Hasan Shah that the
intention of the Constitu tion is that even if a disqualified person is
elected as member of the National Assembly, he will not be unseated
so long as a finding is not given by a competent authority on the
controversy raised. These are not acts void ab initio but are declared
void after an adverse decision is given by a competent authority
against a member. Until such a decision is given the member is
entitled to discharge his duties in an assembly and his acts would be
as valid as of any other member, otherwise there is no sense in
enacting Article 104 (2) which clearly provides that it is only after
the Chief Election Commissioner is of the opinion that a member has
become disqualified that he shall cease to be a member. Moreover,
even in cases of pre-election disqualification the seat of a member
becomes vacant only after an adverse decision of the Election
Tribunal.

It is only from the date of the order of the Tribunal that a member
will be unseated and his seat will be declared vacant for purposes of
filling it. This view is also fortified by a decision of the Rangoon
High Court in the case of U. A YE v. U. Chit Haling (A I R 1941
Rang. 151). In that case a Division Bench of the Rangoon High Court
was considering the effect of section 24 of the Government of Burma
Act, 1935 which was in the following terms "24 (2) If a member of
either Chamber- .

(a) becomes subject to any of the disqualifications mentioned in

subsection (1) of the next succeeding section ; or
(b) by writing under his hand address to the Governor resign his seat;

his seat shall thereupon become vacant."

It was urged before the Rangoon Court that it was not open to the
Speaker to adjudicate upon the question of a disqualification of a
person and their Lordships held that section 27 (3) Government of
Burma Act expressly prohibits the Speaker from deciding whether a
member has, since election, become dis qualified for being a member
under section 25(1)(a) with the result that his seat has become vacant
under section 24 (2) (a). The High Court further held that the
punishment of declaring a seat vacant cannot be inflicted on a
member of the Legislature until a competent Court has found him to
be disqualified under section 25 (1). In this connection it will be
useful to reproduce the observations of Durley, J. at Page 158 of the
report:

"I noticed in the course of the proceedings in the House on 2nd

September the defendant asked the learned Advocate General the
question 'If neither the Speaker nor the House has power to declare
the seat vacant?' and in the course of his argument before us the
learned counsel for the defendant repeated this question rhetorically
and laid particular stress on the phrase, accruing in section 24 (2),
Government of

Burma Act, his seat shall thereupon become vacant'. There is no

special virtue in the word 'thereupon.' A person who commits a
criminal offence thereupon becomes liable to the punishment
prescribed for that offence but the punishment cannot be inflicted
until be has been found guilty, of the offence by a competent Court:
See 1941 R L R 58 Similarly, the punishment of declaring his seat
vacant cannot be inflicted on a member of the Legislature until a
competent court has found him to be disqualified under section 25
(1), Government of Burma Act. We were further asked in argument.
'What is the "Speaker to do when a Member raises a matter of this
kind (as U Hla Pe did)?' It is not the function of this Court to answer
such a question until it arises in a specific case, but learned counsel
for the defendant answered it himself in the course of his argument.
He was referring to other disqualifica tion. Under clauses (b) and (e)
of section 25 (1), and he said this:
If a member produces in the House an order of a competent Court
declaring any other member to be of unsound- mind, adjudicating
him insolvent, or the judgment of a criminal Court convicting and
sentencing him to two years imprison ment or more, surely the
Speaker on the production of his order or judgment can declare that
member's seat to be vacant and request him to leave the House.

Of course he can, because when a member has been declared to be

disqualified for being member by a competent Court, the declaration
that his seat is vacant and his exclusion from the House is a mere
point of order, which it is specifically within the province of the
Speaker to decide, under section 32 (2), Government of Burma Act
and the Rules of Procedure for the House of Representatives. Plainly,
when U Hla Pe raised this matter, the defendant should have said to
him "The matter which you raise is not a point of order and neither
the Speaker nor the House has authority to decide it". Thereupon, U
Hla Pe, if so advised, might have, taken the necessary steps to obtain
a declaration of a competent Court that the plaintiff was disqualified
for being a member under section 25 (1) (a), and, armed with the
decree of the Court, he could have raised the question of exclusion of
the plaintiff from the House and of a declaration that his seat was
vacant on a Point of order."

The same view was expressed by the Privy Council in Patterson v.

Solomon ((1960) 2 A E R 20). 1n that case the respondent who had
been returned as a member of the Legislative Council of Trinidad
and Tobago, had been elected to be a member of the executive
Council and was chosen by the Governor to be Minister of Education
and Culture. The appellant sued in the Supreme Court of Trinidad
and Tobago for an injunction to restrain him from acting as Minister
and as a member of the Executive Council on the ground that his seat
in the Legislative Council had become vacant by his having been
party to a certain contract without disclosure. It was found by the
Supreme Court that the only remedy provided for such cases was by
section 40(1) of the Trinidad and Tobago (Constitution) Order in
Council, 1950; and since the appellant was not competent to craise
such a controversy the court was fully justified in not granting him
any relief. In the Privy Council the appellant, finding himself faced
by this insuperable difficulty, abandoned his claim for relief in regard
to the respondent's membership of the Legislative and Executive
Council. He insisted that he was entitled to an injunction restraining
the respondent from acting as a Minister of Education and Culture,
the plea being that in such cases no remedy has been provided under
the relevant provision of law. This contention was repelled by the
Privy Council on the following observations at page 24:

"The respondent is, until the contrary is competently deter mined, a

member of the Legislative Council. He is, until the Governor
otherwise determines under section 10 of the Order in Council, a
member also of the Executive Council. It is only if he "ceases to be"
such a member that he can no longer hold the office of minister to
which he has been appointed. The appellant cannot, by omitting a
necessary link in the chain of his argument and assuming that to be
proved which be cannot even try to prove, arrive at the conclusion at
which he aims. But that is what he invited their Lordships to do. The
disqualifying event he urged, was an event susceptible of proof like
any other event, and, being proved, led automatically, to disquali
fication, and disqualification led in its turn to incom petence to hold
office. And (so their Lordship understood the argument to proceed)
so long as the object of the proceed ings was not disqualification but
its sequel, section 40 had no application. , The argument was
enforced by illustrations from other proceedings in which it might be
necessary to prove that a particular person was, or was not at a given
time a member of the Legislative Council, e.g., in order that he might
qualify as a beneficiary under a will or settlement. Their Lordships
cannot accept this argument. Whether the purpose of the proceedings
is directly to challenge the right of a person to be a member of the
Legislative Council or to challenge his right only for some ulterior
purpose, he is confronted by section 40 and, if there is in fact a
question to be determined, he is arrested in his argument until the
Supreme Court, on a proper reference, has determined it, or, perhaps
it should be better said, has advised on it. No doubt in most cases, as,
for example, if the event disqualifying the person concerned is his
death, such a reference would be regarded as unnecessary, and in
other cases it could be merely formal. But, v~-here as here the
proceedings are controversial there is no escape from the "explicit
terms of section 40. Unless and until the fact of disqualification has
been established in the only manner permissible, it is not possible to
argue its consequences."
In Fazlul Qadir Chaudhry v. Shah Nawaz (PLD1966SC105) the
Supreme . Court in another context expressed the same view. Their
Lord ships at page 111 observed:-

"It is significant, in this connection to note that even in a case where

a question arises whether a member of an Assembly has after his
election, become disqualified from being a Member, it is not for the
Speaker to decide that question. He can only refer the question to the
Chief Election. Commissioner and if that officer is of the opinion that
the member has become disqualified, he shall then ceased to be a
Member. This expressly provided for in clause (2) of Article 104 of
the Constitution. Apparently therefore, the authority contemplated by
the Constitution and the law, to take action on vacancies occurring in
the Assembly, if the Chief Election Commissioner and not the
Speaker. It is also pertinent to refer to section 81 of the National and
Provincial Assemblies (First Elections) Order, 1962, which
authorises the Election "Com mission, by notification in the official
Gazette, on a seat becoming vacant, to call upon constituency
concerned, to elect a person to fill the seat for such constituency."

Earlier at page 110 their Lordships observed that all the formali ties
prescribed by clause (a) of Article 107 should be fulfilled before the
grave result of vacation of a Member's seat should follow such
action. Thus it will be noticed that even if Res pondents 4 to 38 are
found to be disqualified from being the members of the National
Assembly their seats cannot be J declared as vacant as long as the
controversy raised against them is not properly adjudicated by a
Court of competent jurisdiction.

It is for these reasons that I have found much force in the contention
of the learned Attorney-General that the acts of de facto members
who function under colour of title are valid so long as they in fact
hold an office. In support of his con tention the learned
Attorney-General has referred to Volume 2 of Colley's Constitutional
Limitations at page 1355. The learned author, after discussing the
position of officer de jure and officer de facto has summed up the
position as under:-

"His color of right may come from an election or appointment made

by some officer or body having colourable but no actual right to
make it; "
or made in such disregard of legal requirements as to be in effectual
in law or made to fill the place of an officer illegally removed; or
made in favour of a party not having the legal qualifications; or it
may come from public acquiescence in the office holding without
performing the precedent conditions, or holding over under claim of
right after his legal right has been terminated; or possibly from public
acquiescence alone when accompanied by such circumstances of
official reputation as are calculated to induce people, without inquiry,
to submit to or invoke official action on the supposition that the
person claiming the office is what he assumes to be. An intruder is
one who attempts to perform the duties of an office without authority
of law, and without the support of public acquiescence.

No one is under obligation to recognize or respect the acts of an

intruder, and for all legal purposes they are absolutely void. But for
the "sake of order and regularity, and to prevent confusion in the
conduct of public business and in security of private rights, the acts
of officers de facto are not suffered to be questioned because of the
want of legal authority except by some direct proceeding instituted
for the purpose by the State or by some one claiming the office de
jure, or except when the person himself attempts to build up some
right, or claim some privilege or emolument, by reason of being the
officer which he claims to be. In all other cases the acts of an officer
de facto are as valid and effectual, while he is suffered to retain the
office, as though he were an officer by right, and the same legal
conse quences will follow flow from them for the protection of the
public and of third parties. This is an important principle, which finds
concise expression in the legal maxim that the acts of officers de
facto cannot be questioned collaterally".

This principle was also followed by the Indian Courts in the case of
Parameswaran Pillai Bhaskaran Pillai and another v. State Prosecutor
(A I R 1951 Tra. Couch. 45). In that case the power of the Chief
Justice to bear and decide certain appeals was challenged on the
ground that he was disqualified to hold the office of a High Court
Judge as he had passed the age of 60 years. A division Bench of the
Travancore High Court -repelled this contention holding that a right
of a de facto Judge to hold his office is not open to question nor is his
jurisdiction subject to attack in a collateral proceeding. In the
Judgment itself the learned Judges placed reliance on the decision of
the Appellate Division of Ontario Supreme Court in Toranto Railway
v. City of Toranto ((1919) 46 C D L R 547) in which the above view
was also propounded. Dr. Nasim Hasan Shah has also invited the
attention of this . Court to a decision of the House of Lords in
Seadding v. Lorant (10E R 164) In that case a rate for the relief of the
poor was challenged on the ground that some of the vestrymen who
concurred in making it were vestrymen de facto and not de jure. One
of the points raised in that case was that if authority be given by a
statute for a majority of vestrymen, or of seven or more to make a
rate, would the rate, unobjectionable in other respects, be voted by
seven vestrymen de facto, one of such vestrymen not being
vestrymen de jure. All the learned Law Lords in answer to this
question proposed that the vestrymen de facto was as competent to
join in making a rate as the vestrymen de jure. In this connection the
Lord Chancellor at page 175 observed:

"With regard to the competence of the vestrymen, who were

vestrymen de facto, but not vestrymen de jure, to make the rate, your
Lordships will see at once the importance of that objection, when you
consider how may public officers and persons there are who are
charged with very important duties, and whose title to the office on
the part of the public cannot be ascertained at the time. You will at
once see to what is would lead if the validity of their acts, when in
such office, Way depended upon the propriety of their election. It
might tend, if doubts were cast upon them, to consequence of the
most destructive kind. It would create uncertainty with respect to the
obedience to public officers, and it might also lead to persons,
instead of resorting to the ordinary legal remedies to set right
anything done by the officers, taking the law into their own hands.

I think, therefore, that the- principle laid down by the learned Judges,
as the principle of law, is one that is in conformity with public
convenience, with reference to the discharge of the duties connected
with the office."

A similar question was also considered by the English Courts in

Frost v. Mayor of Ghester (119 B R 578). In that case an objection
was raised about the holding of office of one Johan Smith and a writ
of mandamus was claimed. Their Lordships rejected the plea on the
ground that the proper remedy was by way of quo warranto and not
by a writ of mandamus. In this connection Wightman, J. observed as
under at page 781:

"For the present question, we may assume that the office is not full
de jure, but only de facto: and for the purpose of the present
argument, we may assume that the election has been holden in a way
not warranted by law, and is therefore bad, and such as could not be
supported on quo warranto. But the office is not the less full de facto:
and the party elected has been admitted. I think therefore that a
plenarty is shown which is decisive in favour of Mr. Welsby's clients,
and that the question can be tried only by quo warranto."

35. In the light of the above discussion it appears to me that the

respondent members being de facto members of the National
Assembly, its proceedings cannot be held to be invalid merely on the
ground of alleged disqualification in a collateral proceedings. Mr.
Qasuri has relied on a number of decisions of the Pakistan Courts,
namely,

(1) P L D 1964 S C 97 Mohd. Swaleh v. United Grain and Fodder

Agencies;

(2) P L D 1964 S C 829 Ghulam Mohi-ud-Din v. Chief Settle ment

Commissioner;

(3) P L D 1964 Lah. 188 Akber Hussain v. West Punjab Province;

(4) P L D 1953 S C 58 Attorney-General of Ceylon v. A. D. Silva;

(5) P L D 1964 Pesh. 129 Fazal Karim Bros. v. Chief Settle ment and
Rehabilitation Commissioner;

(6) P L D 1965 S C 55 Zainab Khatoon v. Ghulam Shabbir;

(7) P L D 1966 Lah. 362 Khairuddin v. Abdul Hamid.

36. But these decisions are not of much help for the deter mination of
the above question. Most of these cases arose under the Displaced
Persons Compensation Act, 1.958. Even in one such case (P L D
1964 S C 829) the Supreme Court having found lack of jurisdiction
in the officer concerned declined to issue the writ on the ground of
waiver and consent. P L D 1964 S C 97 is a case under section 115 C
P C and has no bearing on the facts of this case. P L 'D 1953 P C 58
deals only with the point whether the act of the Government servant
binds the Crown without any special authority under the statute or
otherwise. In P L D 1954 Lah. 188 the act of the Excise Officer was
directly in challenge. These cases, being distinguishable for these
reasons, do not touch the question under consideration. I would there
fore hold that the acts of the respondent members cannot be
challenged or attacked in a collateral proceeding.

37. To sum up my conclusions are:-

(1) That Article 110 (1)(d) and Article 111 (1) of the Con stitution
are a bar to the jurisdiction of this Court as the objec tion to the
validity of the impugned legislation that it was not passed by the
votes of not less than two-thirds of the total number of members of
the Assembly relates to the internal proceedings of the National
Assembly.

(2) That Article 171 is a bar to the jurisdiction of this Court only in
respect of adjudication of pre-election dispute. This Court is
competent under Article 98 of the Constitution to adjudicate upon the
continuous disqualification of members of an Assembly.

(3) That relief under Article 98 of the Constitution is no longer

available because whatever disqualification existed ha been removed
by the impugned legislation.

(4) That in collateral proceedings the validity of action of l de facto

members of a Legislature cannot be challenged.

39. Now the only point left for consideration in Writ Petition No.
1104 of 1966 is about the allegation of mala fide and public interests.
These points have been discussed by the learned Chief Justice. I
agree with him on the conclusion reached by him on them.

40. In the view that I have taken on the points raised in these writ
petitions 1 agree that these must fail. Accordingly these writ petitions
stand dismissed. In the special circumstances of the case the parties
are left to bear their own costs.
SAJJAD AHMAD, J.-These writ petitions, apparently woven
around a constitutional tangle, which had produced quite a bit of
furore and argumentative confusion, to my mind, present a very
simple question, which is this: What is the right and the nature of the
demand which the petitioners have brought to this Court for a relief
under Article 98 of the Constitution and what are our powers to grant
it? It is necessary first of all to understand the background of facts.

2. Petition No. 1104 of 1966, by Mr. A. M. Khan Leghari, C. S. P., a

Member of the Board of Revenue, West Pakistan, which led the way
for the rest to follow suit, is representative of the issues raised. It was
the first to be admitted by a learned Division Bench of this Court
which formulated certain points and noted that some others also
arose, all of which, in view of "their great public importance" were
thought proper to be referred to a larger Bench. In the larger context
in which these petitions have been argued before us in the Full Bench
on the points referred to us and not so referred, particularly that of
our jurisdiction to deal with this matter, the questions formulated by
the Division Bench have very much receded to the back ground. The
complaint made in the petitions is that the Constitution (Sixth
Amendment) Act (II of 1966) (hereinafter described as the Sixth
Amendment), under which action has been taken or is proposed to be
taken against the petitioners - for their retire ment from service
earlier than the period of their age of superannuation or retirement, as
provided under the unamended law, is void and unconstitutional. The
Sixth Amendment amended Article 178 of the Constitution,
substituting clauses (4), (5) and (6) of the aforesaid Article by new
clauses, with the following result: -

A Government servant an now be retired at two stages:-

(1) On such date after he has completed twenty-five years of service

as the competent authority may in the public interest direct subject to
the provisions of Articles 185 and 186 which provide for consultation
with the Central Public Service Commission or with the Provincial
Service Commission or if this consultation is dispensed with such
authority as may be specified in the order of the President or the
Governor, as the case may be; [Article 178 (4) (a)];

(2) On the completion of 55 years of age which he may have

completed before or completes on a day within six months of the
commencement of the Sixth Amendment, i.e., from 31st March 1966.
If he has completed 55th year of his age before 31st March 1966, or
completes it within six months from the date, as the competent
authority may direct, or in the absence of such direction, on the
expiry of the said period or on the completion of the 60th year of his
age, whichever be earlier; [Article 17.8 (4) (b)], and

(3) In any other case, on the completion of 55th year of his age
[Article 178 (4) (c)].

Clause (5) of the amended Article authorises extension or re

employment of a person beyond or after the date of retirement for
such period and on such terms as may be deemed fit except in the
case of performance of judicial function other than those specified in
the Explanation appended to the Article. This expansion or
re-employment is however, liable to termi nation at three months'
notice on either side, or on payment of three months' salary in lieu
thereof. Action against Mr. Leghari has been initiated under Article
178 (4) (a) and against the rest under Article 178 (4) (b) and (c) of
the Constitution.

3. The objection against the Sixth Amendment is that it was not

passed by a two-third majority of the total number of members of the
House (156 divided equally between the two Wings of Pakistan-See
Article 20), as required by Article 2C9 of the Constitution, the reason
being that 35 persons, i.e., respondents Nos.'4 to 38 (hereinafter
described as the respon dents), named in Annexure C-2, annexed
with Mr. Leghari's petition, out of the 117 who had voted for it, were
disqualified from being members under Article 103 (2) (a) of the
Constitution (unamended), as they held offices of profit in the service
of Pakistan, being Lambardars, Chairmen of Union Councils/Union
Committees and Reservists in the Armed forces. The- Bill for the
Sixth Amendment was passed by the National Assembly on the 18th
of March 1966 and bears a certificate of the Speaker, .Mr. Abdul
Jabbar Khan, dated the 22nd of March 1966, that it had been so
passed in accordance with the provisions of Article 209 of the
Constitution. It received the assent of the President of Pakistan on the
31st of March 1966.

4. Earlier, on the 14th of June 1965, the Constitution (Third

Amendment) Act (IV of 1965) (hereinafter described as the Third
Amendment) was passed by the National Assembly and received the
assent of the Acting President (Mr. Abdul Jabbar Khan) on the 15th
of June 1965. It added a Fifth Schedule to the Constitution with a
"deeming .clause": "it shall be deemed always to have been so
added." It. amended Articles 103 and 104 of the Constitution of 1962
in the following particulars:-

"In clause (2), in paragraph (a) of Article 103 after the words
"Pakistan" the words `other than an office specified in the Fifth
Schedule'. shall be added and shall be deemed always to have been
so added.

In Article 104 in clause (1) after the words `service of Pakistan' the
words' not being an office specified in the Fifth Schedule shall be
inserted."

The constitutional validity of this amendment is challenged on the

same ground as in the case of the Sixth Amendment that out of the
113 members that had voted for it, 33 mentioned in Annexure C-1 in
Mr. Leghari's petition were disqualified from being members of the
Assembly under Article 103 (2) (a) (un amended), as they held
offices of profit in the service of Pakistan, being Lambardars,
Chairmen Union Councils/Union Committees and Reservists of the
armed forces. Excluding their votes as of disqualified persons from
the total poll of 113, the constitutional two-third majority under
Article 209 falls short by 24, The short-poll in the two-third majority
in the case of the Sixth Amendment, excluding the votes of the
alleged disqualified respondents, is twenty.. It is clear that the attack
on Third Amendment has been made out of sheer necessity because
the attack on the Sixth Amendment would fail if it does not succeed
in respect of the Third.

5. The statement of objects and reasons for the Third Amendment

states that it was considered expedient to amend the Constitution to
remove doubts that were being-expressed that holders of certain
categories of offices are disqualified from being elected as members
of the Central and Provincial Legislatures. These categories of
offices as described in the Fifth Schedule include the Lambardars,
Chairmen Union Councils/ Union Committees and Reservists of the
Armed forces, i.e., offices which were held by the respondents. A
validating clause 5 contained in the Schedule is as follows:-
"5. Validation.-A person holding any of the offices specified in the
Fifth Schedule to the Constitution as added by this Act who has been
elected as a Member of an Assembly before the commencement of
this Act shall not be, and shall be deemed never to have been
disqualified from being elected as and from being a member of an
Assembly, and notwith standing anything in the Constitution, the
election of any such person shall not be questioned merely on the
ground that he held any such office at the time when he- was
elected."

In the course of the attack on this Amendment the learned counsel for
the petitioners, besides challenging its constitutional validity, argued
forcefully that the doubt with regard to the respondents' offices being
offices of profit in the service of Pakistan was. sought to be removed
by a legislative measure which was passed by the support of the very
same persons who were directly interested in the resolution of that
doubt in their own favour and without whose support the effort
would have failed. Mr. Leghari has impleaded these persons as
respondents in his petition which was filed on the 5th of July 1966.
On the 19th of September 1966, an application was moved before us
under Order VI, rule 17, of the Code of Civil Procedure for
amendment of the writ petition which stated that the respondents bad
been impleaded as a precaution against 'a possible technical objection
by respondent No. 1 (Government of Pakistan) that the relief prayed
for could not be granted without hearing ,the aforesaid respondents.
It was said that he had not sought any declaration against them that
they were not entitled to hold the public offices of members of the
National Assembly as he was concerned with his own personal
interest which could be protected by the grant of the prayers that had
been asked by him against respondent No. 1, viz..

(a) That the Third Amendment be declared to be without lawful

authority, void and of no effect ;

(b) That the Sixth Amendment be- declared to be without lawful

authority, void and of no effect;

(c) That -the acts done and proceedings taken in respect of the
petitioner, as explained in paragraph 3 supra (including the reference
to the Public Service Commission) be declared to have been done
and taken without lawful authority and to be
of no legal effect ;

(d) That the respondent be directed to refrain from taking any action
in respect of the petitioner under the Sixth Amendment; and

(e) That action taken in respect of the petitioner under the Sixth
Amendment be declared to be a fraud on the Cons titution, not in
public interest, and as such, in any case, without lawful authority,
mala fide, void and of no legal effect.

6. In paragraph 2 of the application for amendment it is stated

"That another technical objection has now been indicated and it has
been suggested that the petitioner should have also prayed for relief
under Article 98 (2) (b) (ii). In order to cover this objection, it has
become necessary to add to the reliefs another relief under the
aforementioned provision.

It is therefore very respectfully prayed that respondents Nos. 4 to 38

may kindly be required to show under what authority of the
Constitution and the law, they claim to hold the public office of
Members of the National Assembly and then to declare that they are
not entitled to hold the aforesaid office."

This application was dismissed by us on the 23rd of September,

1966, as the learned Attorney-General made a statement that if the
petitioner is otherwise entitled to the relief which he has already
claimed in his petition, his petition shall not be dismissed on the
ground that no relief for quo warranto had been claimed against the
respondents.

7. It is obvious that the petitioners are assailing the forma tion of the
law that has been put into operation against them on the ground that
it was not framed by a competent authority, as the two-third majority
which was necessary for its passage in the Assembly was procured
by the invalid inclusion of the votes of the respondents who were
disqualified to vote because they were "disqualified from being
members" for the reason already mentioned. The relevant provision
regarding this disqualification from membership of the Assembly
contained in Article 103 (2) reads

"103.-(2) A person is disqualified from being elected as, and from

being, a member of an Assembly if-

(a) he holds an office of profit in the service of Pakistan ;

(b) he is an un-discharged insolvent ;

(c) he has, within the previous period of five years, been convicted of
an offence by any Court and sentenced to trans portation or to
imprisonment for not less than two years or been sentenced to death
and that sentence has been commuted to transportation or
imprisonment;

(d) he has ceased to be a citizen or has affirmed allegiance to a

foreign State; or

(e) he is otherwise disqualified from being a member of that

Assembly by this Constitution or by or under any law."

In point of time the disqualifications mentioned in this provision

relate to two periods, namely,

(1) pre-election disqualifications, and

(2) post-election disqualifications.

While the expression "disqualified from being elected" is not open to

any doubt, that which follows, viz., "disqualified from being" can
have a reference either to the acrual of a disquali fication after
election or the continuance of a pre-election disqualification in the
sense that "he shall be disqualified to continue or remain as a
member", or to both.

8. If a person is disqualified from "being elected", the question of his

"being a member" cannot he contemplated in the same breath unless
he is elected, in spite of that disqualification. The use of the
expression "being a member" in that context as covering the
existence of a pre-election disqualification would appear to be otiose.
I am therefore, inclined to think that the phrase "disqualified from
being a member" refers to the sufferance of a disqualification that
occurs after the election and not that flows from the election itself. A
reference to the legal remedies provided for removing disqualified
members makes the point clear. If a pre-election disqualification can
be challenged only according to the law as laid down under Article
171 of the Constitution, on which I will have to dwell at a greater
length later in this judgment, can it be said that if the disqualification
is not challenged in the manner provided, instead of dying a legal
death it remains alive for an attack by other modes? This, to my
mind, is a contradiction in terms which could not have been intended
by the Constitution.

9. For constitutional purity in the membership of the Assembly, a

machinery is provided by the Constitution itself to weed out
disqualified membership which may take birth either during the
pangs of the election or thereafter. Under Article 171 of the
Constitution, which is not subject to the constitutional fetters of any
other provision in the Constitution, including Article 98 from which
this Court derives its power of judicial review, law is to be made for
disputes in connection with (1) counting of votes at an election to be
finally determined by the Commissioner or an Election Commission
and (z) for other disputes arising in connection with such an election
or referendum to be finally determined by a tribunal established for
that purpose, and a mandatory injunction is repeated twice therein
that "no dispute arising in connection with such an election or
referendum shall be decided otherwise than under such a law, and the
validity of such an election or referendum shall not be called in
question except in accordance with such a law". 7 he law framed
under this mandate is the National and Provincial Assemblies
(Elections) Act (IV of 1964). Article 104 of the Constitution provides
remedial measures for post election disqualifications. Accord ing to
Article 104 (1), if a member of an Assembly is elected as President,
or appointed as a Governor or Minister or to any other office of profit
in the service of Pakistan, he shall cease to be a member of the
Assembly on the day on which he enter upon his office. In the case
of Fazlul Quader Chowdhry v. Muhammad Abdul Hague (P L D
1963 S C 486) the Supreme Court has held that under clause (1) of
Article 104, "the Constitution regards the assumption of an office of
profit in the service of Pakistan as a fact capable of instant proof,
requiring no ascertainment by any fact-finding process, and
accordingly, this clause, lays down a rule of automatic application,
viz., that a person assuming such as office of profit should forthwith
cease to be member of an Assembly." Under Article 104 (2), where a
question arises whether a member of an Assembly has, after his
election, become disqualified from being a Member of the Assembly,
the Speaker of the Assembly shall refer the question to the Chief
Election Commissioner and if the Chief Election Commissioner is of
the opinion that the member has become disqualified, the member
shall cease to be a member.

10. Another instance of cessation of membership in the Constitution

is contained in Article 113, according to which where the Speaker of
an Assembly is satisfied that a member of the Assembly has
committed a breach of the rules in such a way as to have been guilty
of gross misconduct, he shall refer the matter for inquiry:-

(a) to the Supreme Court in the case of the National Assembly; and

(b) to the High Court in the case of the Provincial Assembly, and if
after inquiry the Court is satisfied that the member has been guilty of
gross misconduct, it shall make a declaration to that effect and upon
the making of the declaration the member shall cease to be a member
of the Assembly.

11. It is clear that the Constitution intends and provides a point of

time for the cessation of membership in each case of disqualification
which is fixed by the relevant provisions. Under Article 104 (1) the
cesser is immediate and automatic when a member is elected or
appointed to an office of profit. in the service of Pakistan, such as
mentioned in that Article. Under Article 104 (2), it takes effect when
the Chief Election Commissioner gives the opinion that the member
has become disqualified and in the case of a misconduct of a member
under Article 113 the member ceases to be a member when the
Supreme Court or the High Court, as the case may be, declares that a
member has been guilty of gross misconduct. Where elections are set
aside by decisions of Election Tribunals, the unseated members cease
to be members from the date of such decisions.

12. In the present petitions it is not alleged that the respon dents were
elected or appointed to any office of profit after they became
members and it is thus not a case of automatic cessation of
membership under Article 104 (1) of the Constitution. I feel that the
point of time of disqualification allegedly incurred by the
respondents has been purposely left in obscurity by the petitioners to
escape a direct confrontation with the issue of jurisdiction. But their
attack on the Third Amendment, which sought to remove doubts
about the respondents' election as disqualified persons leaves no
doubt that the petitioners are attacking the respondents' status as
members to vote in the impugned amend ments in spite of the. fact
that they were disqualified to be elected because they were holders of
office of profit at the time of the election.

13. I would like to observe here that the offices, which are said to be
held by the respondents, viz., those of Lambardars, Chairmen Union
Councils/Union Committees and Reservists, assuming that they are
found to be offices of profit in the service of Pakistan are not such
established offices like those of Ministers with which their Lordships
of the Supreme Court were dealing in Fazlul Quader Chowdhry's
case and which being capable of instant proof do not require a
fact-finding process. The character of the offices held by the
respondents qua the qualification for membership to the Assemblies
involves a legal argument and requires judicial scrutiny. In particular,
the offices held by the respondents as Lambardars, whose alleged
disqualified votes on account of their number in the impugned
Amendments constitute the kingpin in the petitioner's case, presents
an intriguing study of the constitu tional and sub-constitutional
instruments that have dealt with this matter. Doubts -with regard to
them as holders of offices of profit had been sought to be cleared
from time to time and legislative immunity has been granted to them
and yet the doubts have persisted of which an eloquent testimony is
furnished by the Third Amendment itself. There is no judicial
precedent under the 1962 Constitution regarding the point. In Sajjad
Ali Khan v. Ch. Fazal Ilahi (P L D 1957 Lah. 940) the Lahore Bench
of the High Curt, presided over by the late Mr. Justice M. R. Kayani,
held, despite the - Government's stand to the contrary, that it was a
novelty to consider the office of Lambardar as an office of profit in
the service of Pakistan. There was an appeal to the Supreme Court
against that decision which unfortunately abated and there was no
authoritative resolution of the dispute. In the new Constitution, in the
relevant context, there is the addition of the word "office" in the
definition of "service of Pakistan", as contained in Article 242 of the
Constitution which Mr. Mahmud Ali Qasuri, the learned counsel for
the petitioner, considered as the Legislature's tribute to the great
Judge, Mr. Justice Kayani, that it supplied the deficiency in the status
of a Lambardar as holding an office of profit in the service of
Pakistan, as detected by Mr. Justice Kayani. We had heard elaborate
arguments on this point and I feel tempted to give my own views on
the question, but as I have regretfully found that I am unable to grant
any relief to the petitioners on account of bar of jurisdiction, even
assuming that the respondents suffered from the disqualifications
attributed to them and were disqualified to be elected, it is useless to
go into this question as a mere academic exercise. My other reason to
refrain from giving any finding on this point is that, as stated at the
Bar, certain election petitions 'and writ petitions, involving the same
point, are pending before the Election Tribunals and the High Courts
in both wings of the country and any finding on this issue will not be
expedient.

14. I consider that the discussion has now been brought to a point
where I may analyse the right maintained by the petitioners to obtain
the relief which they are claiming. The essence of the grievance is
that the respondents have voted for the Bills, although they should
hive refrained from voting or should not have been permitted to vote,
being disqualified to do so. The respondents have voted and were
permitted to vote because they were elected to the Assembly even
though they should not have been elected or permitted to contest the
election on account of their disqualification. Plainly enough, the right
of the respondents to vote in the Assembly, which is being
challenged, cannot be separated from their right as persons elected to
the Assembly, rightly or wrongly, with an entitlement to vote, the
two being intertwined. Whatever form we may give to the dispute in
the relationship of cause and effect, whether the dispute is in regard
to the illegal election of the respondents directly and to the impugned
amendments collaterally or vice versa, the outcome is the same,
namely, "that the respondents should not have been present in the
Assembly to vote for the impugned amendments as they were
disqualified to be elected". This leaves no doubt in my mind that the
dispute which has been brought to this Court has arisen out of the
election of the respon dents and is connected therewith. This brings
us . to the jurisdictional hurdle of Article 171 of the Constitution
which the petitioners have to face. As for the scope of Article 98 of
the Constitution, in relation to the effect of Article 171 of the
Constitution, I can do no better than most respectfully quote the
observations of my Lord the Chief Justice of Pakistan, Mr. Justice A.
R. Conelius, in Mian Jamal Shah v. Election Commis sion (P L D
1966 S C 1) at p. 25 which are as follows:-

it must be observed that any assumption that the power under Article
98 is something inherent in the High Court, something of earlier
origin than the Constitution of 1962, is one that cannot be supported.
The power given by Article 98 comes as a matter of first conferment
by the Constitution and it cannot be placed on any higher footing
than the authority which can be claimed for Article 171 in the same
Constitution. It is to be noted with care that Article 171, subsection
(1) is not made expressly "subject to this Constitution," and that
Article 98 confers power on the High Court "subject to the
Constitution." Consequently, the terms of Article 171 (1) are to be
construed and given their fullest meaning irrespective of anything
contained in any other Article of the Constitution."

As already mentioned above, for disputes arising out of, and in

connection with, elections to the major Assemblies in Pakistan, law
was made under this constitutional mandate, namely, the National
and Provincial Assemblies Act (IV of 1964). Under section 12 i3) of
this Act, a candidate seeking an election to a seat in the Assembly
has to make a declaration that he is not disqualified from being
elected or from being a Member of the Assembly. ' He is qualified to
be elected only if under sec tion 12 (2) (a) (c) he is not disqualified
from being elected as a Member of the Assembly and he would be so
disqualified if he holds an office of profit in the service of Pakistan.
Under section 52 of the Act, no election can be called in question
except by an elec tion petition made under section 57 which gives the
right only to a candidate in the election to file the election petition on
any of the grounds mentioned in section 72 of the Act which includes
the ground that "the returned candidate was not, on the nomina tion
day, qualified for, or was disqualified from being elected to the seat
in question." Under the rules framed under section 114 of this Act,
election petitions can be filed within sixty days of the notification of
the result.

Now, the law as framed by the Legislature under the constitutional

requirement of Article 171 gives the right only to a candidate in the
election to challenge the election of the returned candidate within a
certain time and to none other. The non-availability of this right to
any other person, including the petitioners, and the fact that the
petitioners cannot be considered to be disputants in the election as
they were not at all concerned with it until the respondents became
privy to the impugned amendments, were employed by Mr. Mahmud
Ali Qasuri as grounds for a forceful argument that it is in such cases
where there is no remedy for a wrong or where the law leaves the
remedy un-provided for the wrongs done to the citizens, which are
violative of the Constitution, that the Judges of the superior Courts
must come to the aid of the wronged citizens to redeem their oath of
office "to protect, preserve and defend the Constitution." Very
alluring instances were given to us to quicken our conscience in the
glare of our oath. One of them was: "Suppose a conscience from
America (figuratively named for his renowned wealth) bought his
way to the National Assembly, purchasing the electors, the
candidates, the officials concerned in the process, and no one
challenged his election by an election petition, will he remain a
Member and are the Courts, as Custodians of the Constitution,
helpless to remedy the situation"? The picture drawn is very
hypothetical and illusory; but may say that where moral condition of
a community is reduced to such a tearful and polluted level, is not the
matter of the preserva tion and protection of the Constitution a
helpless illusion by itself ?

15. The Constitution of a State, such as ours, which recognizes the

political concept of distribution of powers between the various
organs of the State, reposes full confidence in them for the proper
discharge of their functions in their respective spheres. The
abdication of that responsibility or its abuse by any one does not
demolish the frontiers that separate . one from the other in the
exercise of their powers entrusted to them by the Constitution or the
law. Special forums and Tribunals are set up under the Constitution
and the law with special jurisdictions to finally determine the issues
entrusted to their. care. It is the" privilege of the superior Courts to
correct the errors of non- exercise, excessive exercise or illegal
exercise of jurisdiction by the other organs of the State, but tae
former cannot take the place of the latter to perform their functions
and to allow the reliefs which lie within their exclusive jurisdiction.
By-passing of the special tribunals would be defeating the very
constitutional purpose itself. This is particularly so in the case of
Election Tribunals set up under the mandate of the Constitution. In
historical retrospect, the jurisdiction regarding the compositions of
supreme Legislatures in democratic countries inheres in the;
Legislatures themselves, including the determination of the status of
those who claim to be their members. This jurisdiction a transferred
to other agencies and Tribunals by way of conformance on them of
the Legislature's own powers. to finally settle the; electoral disputes
to ensure that the composition of the Legislature; is speedily and
distinctly known. These disputes, therefore, muse be settled in
accordance with the manner as ordained by the Legislature, in the
special forms created for the purpose and within the time as
specified. The whole tenor of the relevant law forbids the conception
that the sword of Damocles should be allowed to remain hanging on
the heads of the legislators elected to their offices at the pleasure or
fancy of anyone who may choose to challenge their status. But the
more relevant question in this context is, if the law has not provided a
remedy for a situation, is it within the powers of the Courts to invent
one? I consider that Mr. Mahmud Ali Qasuri was stating L1a
proposition too widely when he asserted with vehemence that
omissions in the law to provide for remedies in such circums tances
is a recognition of the fact that the constitutional remedy under
Article 98 is always available. It is not for Courts to supply the
omissions in the Acts of the Legislature, particularly so where they
appear to be deliberate intended, even while putting the most
benevolent interpretation on them.

16. While examining this question, it is necessary to understand the

nature of an electoral right, a right to contest an election or to
challenge an election. This has never been treated as, an ordinary
civil or a common law right. It is an electoral right which is the
creation of a statute and is subject to the limitations of the statute
creating it. It is not for the Courts to vary, add to, or substract from,
those limitations. Mr. Justice Muhammad Munir, A. C. J. (as he then
was), commenting on this right in the case of Mian Sultan Ali
Maghiana (P L D 1949 Lah. 301) as observed as follows :-

"The rule is fundamental both here and in England that when a right
is created by a statute which prescribes the manner in which that
right may be enforced, the party complaining of any infringement of
such right can only seek such remedy as may be provided by that
statute."
17. The respondents have entered the Assembly as members through,
if I may use this expression, the electoral corridor according to law
which contains an entrance and an exit. They could be stopped at the
entrance or pushed out of the exit if their entry was unlawful; but
none challenged their entry to the corridor or asked for their exit in
the manner as provided by law and if the door is now closed, shall
we open it because there is no other way out? I consider that it is not
at all germane to the extraordinary jurisdiction of this Court to throw
out the respondents in disregard of the relevant law, and this is
exactly what the petitioners want us to do in striving for a finding
that the respondents being disqualified to be elected were not
qualified to be in the Assembly to vote in the impugned amendments.
It is well known that where the law provides a particular manner for
the doing of a particular thing, it must be done in that manner or nor
at all. When the petitioners demand that they should be treated in
accordance with law, does it mean that the same treatment be denied
to the respondents? If we disregard the law which governs their
election, namely, the National and Provincial Assemblies Elections
Act (VII of 1964), shall we be treating them in-accordance with law?
Virtually the petitioners are asking us to bury the respondents' status
as members of the Assembly before it has been legally pronounced to
be dead.

18. A case from the Privy Council of very high authority, Patterson
v: Solomon (1962) A E R 21) almost covers the point in controversy.
The respondent Solomon was returned as a member of the
Legislative Council of Trinidad and Tobago, and was also elected as
a member of the Executive Council and thereafter appointed by the
Governor to be Minister of Education and Culture. The petitioner,
Patterson, sued in the Supreme Court of Trinidad and Tobago for an
injunction to restrain the respon dent from acting as Minister and as a
member of the Executive Council and a member of the Legislative
Council on the ground that his seat in the Legislative Council . had
become -vacant by his having been party to a certain contract without
'disclosure. Section 40 of the Trinidad and Tobago (Constitution)
Order in Council, 1950, as substituted by the Trinidad and Tobago
(Constitution) (Amendment) Order in Council, 1956, provided that
"all questions which might arise as to the right of any person to be or
remain an elected member of the Council (the underlining (Here in
italics) is mine), shall be referred to the Supreme Court of the Colony
by the Legislative Council. The application for injunction was
dismissed on the ground that reference had not been made by the
Council to the Supreme Court. In his appeal to the judicial
Committee, the appellant abandoned his claim to the reliefs except in
relation to the respondent's office of Minister to which the respondent
had been appointed by the Governor under section 30 of the same
Order. The appeal was dismissed as incompetent because according
to their -Lordships "the determination of the Supreme Court on a
reference to it under section 40 of the Order in Council was final
which did not provide for the decision of ordinary civil rights but
created an entirely, new jurisdiction in the Court, with the council's
consent, for determining the status of persons -claiming to be
members of the council". As regards the abandonment of the
appellant's claim concerning the respondent's member ship of the
Executive Council and Legislative Council to save his action from
the mischief of section 40, their Lordships held that "by doing so the
appellant omitted essential links in the chain of reasoning by which
he sought to support his claim for injunction against the respondent s
minister ship . It was stated in the judgment :-

"Whether the purpose of the proceedings is directly to challenge the

right of a person to be a Member of the Lagislative Council or to
challenge his right only for some ulterior purpose (the underlining* is
mine), he is confronted by section 40 .Whereas here the proceedings
are controversial, there is no escape from the explicit terms of section
40. Unless and until the fact of disqualification has been established
in the only manner permissible, it is not possible to argue its
consequences."

19. Finding his case - in the teeth of Article 171 of the Constitution,
Mr. Mahmud Ali Qasuri contended that this Article and the
judgments delivered by the superior Courts regard ing its effect
vis-a-vis Article .98 of the Constitution, including that of the
Supreme Court in Jamal Shah's case, do not have any reference to the
right of the petitioners as citizens to lay a challenge to the continuing
status of the respondents as holders of public offices and that relief
could be competently claimed in that behalf under Article 98 (2) (b)
(ii), which is to the following effect :

(2) Subject to this Constitution, a High Court of Province may, if it is

satisfied that no other adequate remedy is provided by law
(b) on the application of any person, make an order-

(ii) requiring a person in the Province holding or purporting to hold a

public office to show under what authority of law he claims to hold
that office."

This relief as contemplated by the above provisions Article 98 (2) (b)

(ii) has its origin in what is known as the writ of quo warranto in the
English Law which is now obsolete, and is in its' nature an
information laid against a person "who claims or has usurped an
office, franchise or liberty" whereby it is intended "to enquire by
what authority he supports his claim in order that the right to the
office may be determined". A private relator can maintain an
application for a writ of quo warranto and the same principle has
been incorporated in Article 98 (2) (b) (ii) of our Constitution, giving
the right to any person to apply to the High Court requiring a person
in the Province within its jurisdiction to show under what authority
of law he claims to hold the office which he holds or purports to
hold. Under the English law, this writ was treated not as a writ of
right but one of absolute discretion. Under Article 98 of our
Constitution all the reliefs obtainable under it are purely
discretionary and on the principles governing writs of quo warranto
the relief under Article 98 (2) (b) (ii) is particularly so. I told Mr.
"Mahmud Ali Qasuri that his application for this relief by way of an
amendment had already been dismissed by us without demur, but
supposing we were to re-open the matter and allow the amendment,
will it not be a complete answer to his prayer if the respondents
produced the notifications under section 41 of the National and
Provincial Assemblies Act (VII of 1964) wherein the Election
Commission had notified their election to the Assembly. Their
election to the member ship of the Assembly has not only been
notified but they ha ye taken the oath of office under Article 106 of
the Constitution. Their names are borne on the rolls of the Assembly
which are maintained under rule 15 of the Rules of Procedure framed
bye the Assembly. Can a writ of quo warranto be issued in these
circumstances? I did not get a satisfactory answer from Mr. Qasuri to
this question ; nor to the other question that assuming we were to go
behind the notifications of the respon dents' election to their offices
as members of the Assembly and examined their qualifications and
found that they were disqualified, would-the result be any other than
that their offices would be declared vacant on the date on which we
make the declaration, without any effect on their past activity as
legislators. Even if I were to hold that the respondents were
disqualified, would be extremely reluctant to issue a writ of quo
warranto at the instance of Mr. A. M. Khan Leghari who has made
this'belated attack on the status of the respondents collectively,)
which attack on his own showing is for a collateral purpose of
declaring the impugned Amendments to be void.

On the view which I have adopted that the respondents are members
of the Assembly as long as they are there, until they are removed in
accordance with law, and that all their activities in the Assembly
during the interregnum are valid, in spite of any disqualification
attaching to them, it is really not necessary to advert to the second
aspect of the objection to our jurisdiction in giving relief to the
petitioners and which relates to the validity of the proceedings of the
Assembly being protected by Article 110 (d) of the Constitution and
further to the claim of absolute immunity for the proceedings of the
Assembly as enjoined by Article 111 of the Constitution. However,
as the points have been argued before us, I would like to offer my
comments.

20. Article 110 (d) of the Constitution reads as follows:-

"110.-Subject to this Constitution-

(d) no proceeding in an Assembly shall be invalid by reason only that

a person who was not entitled to do so was present at or voted or
otherwise participated in the proceedings." To my mind, on its plain
language, it is a validating provision which has been incorporated in
the Constitution to protect the participation in the proceedings of the
Assembly, including the voting by those persons who, although
returned to the Assembly, may subsequently be unseated on account
of a successful challenge to their election on the basis of their
disqualification or other wise. It was contended by the learned
counsel for the petitioners that this provision applies only to those
proceedings which are otherwise valid, i. e. in the context of the
present petitions, it the impugned amendments had had the majority
of duly qualified persons they would not be rendered invalid because
the disqualified persons had also voted for them. I find nothing in the
language of the provision to limit its effect, as contended by the
petitioners. The contention of the petitioners, if accepted, would
defeat the constitutional purpose of the provision which is to save the
proceedings of the Assembly from being rendered void if at some
subsequent stage it is found that the persons who are not entitled to
vote in those proceedings had voted. One can visualise a situation
where a majority of the members of the Assembly may be unseated
in due process of law after a successful challenge to their election in
the election petitions and this may happen after quite a long time of
their election to the Assembly, during which many legislative
enactments may have been passed and other actions taken with their
participation and vote, affecting business of the State and the rights
of millions of people. Can it be the purpose of the Constitution that
as a result of their unseating all those proceedings should go waste,
which would work a havoc. Even if there were an ambiguity in the
provision, I would prefer an interpretation which would avert a
constitutional chaos to the one which invites it. On this point, we
were referred to the case of Ali Ahmad Hussain Shah (P L D 1955 F
C 522) wherein the Privy Council (Abolition of Juris diction) Act,
1950, was challenged on the ground that it had been passed by an
illegally constituted Assembly which had added six members to its
personnel by an Act called the Constituent Assembly for Pakistan
(Increase and Re-distribution- of Seats) Act, which was invalid, as it
had not had the assent of the Governor-General. His Lordship Mr.
Justice Muhammad Munir, C. J. (as he then was), commenting on the
laws passed by the aforesaid Assembly, observed. that "the general
rule is that if a Legislature illegally adds to its members and the
persons so added take part in discussion and voting, the laws passed
by it are void." His Lordship further observed that "in the case of
companies and statutory bodies; like municipal corporations, the rule
is well settled that the proceedings of such bodies are vitiated by
strangers taking part in a voting at their meetings." His Lordship,
however, considered that section 66 of the Government of India Act,
1935, was a departure from this general principle which protected the
proceedings of an Assembly notwithstanding vacancy in the
membership of the Assembly and notwithstanding that it was
discovered subsequently that some persons who were not entitled to
do so sat and voted or otherwise took part in the proceedings. The
entire composition of the Constituent Assembly -in that case was
held to be illegal by his Lordship, because six members had been
added in clear violation of section 19 (3) (b) of the Indian Inde
pendence Act, 1947, which had given the exact definition of the
Constituent Assembly, as altered by any action taken under the
proviso to subsection (3) of the aforesaid section and which alone
was competent to pass constitutional laws under subsection (1) of
section 8 of that Act. My Lord Justice Cornelius (as he then was)
differed from this proposition of the "general principle".

Referring to the statute law in England, the provisions of the

Companies Act, 1913, the Bombay City Municipality Act, 1925,and
the City of Lahore Corporation Act, 1941, in support of his view that
where the defect is of subsequent discovery and the inclusion and
participation of the affected members is entirely bona fide, their
presence cannot operate to vitiate either the constitution of the
corporation or the acts of such corporation. But, as I have already
said above, the express saving -provisions of Article 110 (d) made in
the Constitution do not leave the matter in controversy as far as the
proceedings l of the Assembly are concerned.

21. It was further argued by the learned counsel for the petitioners
that this provision is not available for constitutional Amendments for
which there is a self-contained machinery contained in Part X1 of the
Constitution, headed as "Amendment of the Constitution". This Part
consists of Articles 208 to 210. The first one reads:-

"208.-Subject to this Part, this Constitution may be amended by an

Act of the Central Legislature."

It was argued with great force that the amendment to the Cons
titution has been placed on a very sacred pedestal and, therefore, the
provisions relating to it. are subject to Part XI only and not to the
other provisions of the Constitution, including Article 110 (d). This
contention seems to proceed on a misconception and, if accepted
would lead to many procedural gaps in the enactment of
constitutional amendments. Article 208 states that the Constitu tion
may be amended by- an Act of the Central Legislature which means
that- a constitutional amendment has all the incidents of an Act of the
Central Legislature and has to undergo all the processes contained in
the Constitution for its passage in addition to the process as laid
down in Part XI, except those which are in variation or in conflict
with the latter. The contention that the provisions of Part XI (dealing
with constitutional amendments) are no subject to any other
constitutional provision needs introducing the word "only" after the
word "Part" in Article 208, which is not there. I see no reason to hold
that the proceedings taken for a constitutional amendment in the
Assembly are not proceedings of the Assembly within the purview of
Article 110 (d) of the Constitution.

22. As for Article 111 of the Constitution to the effect that "the
validity of any proceedings in an Assembly shall not be questioned in
any Court", I feel that the absolute immunity for these proceedings
which was claimed by the learned Attorney-, General, was being
pressed into service a little too far. I can appreciate that proceedings
in the Assembly pertaining to the formative stages of an enactment
are protected, including the y division and the voting thereon, and
this protection is to be given its full content, but these proceedings, in
my humble opinion. to enjoy that immunity must fall wholly within
the privilege of the Assembly. It is certainly not the legal right or
privilege of the Assembly to outstep its own competence and
jurisdiction; as laid down by the Constitution. Supposing, in the
passage of Third and Sixth Amendments, some members, who had
been declared to be disqualified by the Election Tribunals and some
others similarly so declared by, the Chief Election Commissioner
under Article 104 (2) had been allowed by the Speaker of the
Assembly or the major ruling party in the Assembly to vote in the
Bills, could those votes be counted as valid votes for the passage of
the Bills? Or conversely, if the same members duly elected and
qualified as members, without any challenge to their election, had
been disallowed by the Speaker of the House to cast their votes-may
be by physical violence-would that action be immune from the
challenge because the "validity of the proceedings of the Assembly
cannot be called in question"? Are they at all matters within the
constitutional competence of the Assembly and relevant to its
proceedings ? Declaring a person as a qualified member of the
Assembly if he is not so qualified, or disqualifying a member who is
duly qualified and has not been disqualified according to law is not
the function of the Assembly or the Speaker and does not fall within
their legal competence: It does not relate to the conduct of business
or the proceedings of the House and, therefore, in my opinion, no
question of immunity .for such an action can arise under Article 111
of the Constitution. 1 should, indeed, be very sorry if the superior
Courts in their corrective jurisdiction found themselves helpless to
remedy such a situation created by the unwarranted action of the
Assembly or the Speaker. I take this to be the view of their Lordships
of the Supreme Court as laid down in the case of Fazlul Quader
Chaudhry v. Shah Nawaz. The National Assembly of Pakistan has
only those powers which the Constitution has given to it and no
more. The case of Pakistan v. Mr. Ahmad Saeed Kirmani (P L D
1958 S C (Pak.) 397) was cited by the learned Attorney-General in
support of his conten tion. I feel, with utmost respect, that when my
Lord, Mr. Justice Cornelius observed therein that "proceedings that
can be fairly described as internal proceedings relating to the proper
business of the House are wholly outside the corrective jurisdiction
of the High Court", his Lordship had clearly in mind some external
proceedings outside the business of the House which could be so
corrected. Surely, proceedings which are outside the domain and
legal competence of the National Assembly are neither within the
business of the House, nor can they be termed as "internal
proceedings". My Lord Rehman J. has said in the very same case
while dealing with it in the High Court that "the jurisdiction of the
Court can be ultimately invoked when the so called proceedings are
really outside the purview of the Constitu tion".

23. It remains to consider the question raised by some of the

petitioners that their retirement from service is violative of the
amended law, against public interest and mala fide. In the petition of
Mr. A. M. Khan Leghari and persons similarly placed this grievance
is wholly premature, as according to Mr. Leghari his case for the
present has been referred to Public Service Commission for advice. I
cannot. anticipate what the advice will be and what will be the
decision based thereon., It may be that no adverse decision is
ultimately made against Mr. Leghari and all this turns out to be much
ado about nothing.

24. As for the other petitioners who have retired, their petitions on
this aspect of their cases will be dealt with by the Division Benches
dealing with them.

25. In the result, I hold that the third and the Sixth Amendments are
valid Maws. In view of this discussion and the result reached, it is
unnecessary to answer the questions as formulated by the referring
Division Bench. I would leave the parties to bear their own costs of
these petitions.
A. H. Order accordingly.