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Civil Appeal No. 55 of 1957, decided on 23rd May 1958.
(On appeal from the judgment of the High Court of West Pakistan at Lahore, dated the 5th June 1956, in Writ Petition Case No. 212 of 1956: P L D 1956 (W. P.) Lah. 807).
(in Pakistan)‑Continuation of course of development of such institutions in United Kingdom.
The whole course of development of representative institu tions in Pakistan, during the long period when it was a part of the sub‑continent, and since the commencement of its separate existence, is a continuation in its broadest aspects of the course of development of such institutions through more than six centuries in the United Kingdom. Notwithstanding the constitutional differences between the two countries, it may be stated without fear of contradiction, that so far as concerns the place of the legisla ture, vis‑a‑vis the other great limbs of the State, the position in Pakistan approximates closely to that which obtains in the United Kingdom. That is a natural,) consequence of the fact that the representative institutions now operating were introduced for the first time by the British Government during the later years of their long period of dominance over the sub‑continent. Similar institu tions have been introduced in every country outside the British Isles over which from time to time British Sovereign has held sway.
It follows as a natural consequence that the incidents of Parliamentary government as introduced by the British rulers into other territories approximate closely to those of Parliamentary government in their own country, and within their own experience. That experience includes a long period, covering nearly five centuries, of agitated controversies between the House of Com mons and the Courts of the King regarding the limits of their respective jurisdictions in respect of proceedings of House of Commons.
On questions relating to the British Parliament and to the pro ceedings of that Parliament, and other Parliaments formed upon the same pattern, May's Parliamentary Practice is both valuable as well as entirely trustworthy, as a guide on all points whether of principle or of detail.
Granted to consider whether views expressed in judgment of High Court were in accordance with text and spirit of Constitution‑Constitution of Pakistan, Art. 160.
Court proceedings touch ing privileges of Provincial Assembly‑National Assembly or Central Government whether have locus standi in such proceedings‑Cons titution of Pakistan, Art. 56.
The High Court dealt with certain allegations, made by a member of a Provincial Assembly in a writ petition, relevant to certain proceedings of that Assembly. On facts, the Central Government of Pakistan or the National Assembly had nothing to do with these allegations, but the Central Government took an appeal from the decision of the High Court to the Supreme Court, urging that the immunity given to proceedings of a Provin cial Assembly under Art. 89 of the Constitution had been conferred under Art 56 on proceedings of the National Assembly in pre cisely the same terms as Art, 89. The Central Government's locus standi to pursue such an appeal was questioned.
The Supreme Court observed: The "learned Attorney‑General appearing for the Central Government of Pakistan has been unable to satisfy us that that Government has locus standi to pursue this appeal. The entire set of facts out of which the case arose was confined to the Provincial Legislative Assembly. They do not in any way whether directly or indirectly touch the Central Legislature i.e. the National Assembly, much less the Central Government, which is a wholly distinct entity. The argument that the immunity given to proceedings of a Provincial Assembly under Article 89 has been conferred upon proceedings of the National Assembly in precisely the same terms under Article 56 does not serve to provide for the Central Government any such interest in the present proceedings as would make that Govern ment a proper party in the case. The rights which are‑affected by the observations of the learned Judges of the High Court, should they be put into operation in any subsequent case, are not rights of the Provincial Government much less the Central Government, but are distinctly and separately the rights of the Provincial Assembly. Should the corresponding rights possessed by the National Assembly ever be in danger, we feel no doubt that that Assembly is competent to assert those rights in modes known to law including the lea et consuetudo Parliament and may thus succeed in obtaining a definitive decision from the Courts. But there is no doubt whatsoever that it would altogether be out of the way for the National Assembly to attempt to bring itself into the present proceedings for the purpose of having in advance, a declaration of its own rights under Article 56, when the matter in dispute before the Court is as to the rights of a Provincial Assembly under Article 89. And as for the Central Government, the efforts of the Attorney‑General to establish any direct interest on behalf of that Government in the present proceedings have been wholly unfruitful.
"The appeal is therefore liable to dismissal on this short ground. We have, however, had the advantage of hearing the Attorney General supported by the Advocate‑General of West Pakistan on behalf of the Speaker of the West Pakistan Provincial Assembly. At the same time, the case is one of great importance, from this point of view, namely that the learned Judges of the High Court have, by their observations, raised de novo a very ancient controversy between the Courts and the superior Assemblies, in a manner which is liable to give rise to misconceptions and perhaps to lead to those injurious results which have been indicated in ground No. 9 of the grounds of appeal, quoted above. Upon examina tion of the question, with the valuable aid of materials collected and set out in‑ chronological order, with great clarity in May's Parliamentary Practice, this Court is in a position to state the correct principles governing the resolution of the apparent conflict between Article 170 of the Constitution and ‑the relevant provision of Article 89. It is necessary and desirable from every point of view that that opinion should be stated, in order to the more harmonious working of the Constitution ".
(
Constitution of Pakistan, Arts. 56 & 89
Art. 89‑Provincial Assembly Election of Speaker‑‑Allegations of interference with votes of mem bers within House‑Matter not open to examination by Courts.
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. 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 inter nal proceedings.
Allegations of interference, with votes of members, were made in course' of election of Speaker‑ of the West Pakistan Provincial Assembly, which allegations were gone into by the Chairman and a decision given thereon. A division followed and the Chairman announced the result of election in favour of one of the candidates. The contesting group challenged the validity of election by a writ petition in the High Court. While dismissing the petition on merits the High Court expressed the opinion that the immunity attaching to proceedings of Assembly, recognised in Art. 89 of the Constitution, was not absolute.
Held, that the question before the High Court, which alone the High Court could properly investigate, was‑are the proceed ings whose validity is impugned fairly within the meaning of the expression "internal proceedings of the Provincial Assembly" To that question, it is plain that there could only have been a single answer viz. in the affirmative. Everything that happened of which complaint was made in the case happened in the Chamber of the House, under the very eye of the Chairman. It happened in the course of a division, which was essentially and peculiarly a proceeding of the Legislative Assembly. The division was taken for the purpose of electing a Speaker, a matter, which was wholly and exclusively a concern of the Legislative Assembly. A division involves voting by Members, and by Members only; it can only be carried out within the Chamber of the House. These are proceedings, which form part of the very essence of Parliamen tary activity. In the course of the division questions of conten tion were raised, and these were supported by arguments of partisans addressed to the Chairman in due form, after which the Chairman informed himself by such means as were available regarding the true facts of the incidents alleged In dealing with these questions, the Chairman followed the established practice of the Speaker of the House of Commons After giving his deci sion on all points of contention, the Chairman announced the result of the division, as it was his duty to do under rule 63 of the West Punjab Legislative Assembly Rules.
On consideration of all the facts the proceedings in question were wholly within the privilege of the House, and wholly outside the jurisdiction of the Courts.
Ahmad Saeed Kirmani v. Fazal Elahi P L D 1956 (W. P.) Lab. 807 not approved.
r. 63 (6)‑Announce ment of result of division, whether can he challenged.
Rule 63 (6) 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 ques tion, his vote may be disallowed on a substantive motion carried by the Assembly subsequently. The rule is that the vote is tc be counted in the lobby in which a Member presents himself, despite his intention to go to the other lobby, which clearly points to the fact that the choice of the Member becomes determined once for all when he presents himself in a particular lobby
89 and 170‑Whether Assembly proceedings can be scrutinised by High Court under Art. 170.
The question of conflict between the relevant privilege embo died in Article 89, and the power of a High Court under Article 170, is not a matter of pure construction, which could be attempted by reference to the earlier provision in the Government of India Act, 1935, relating to the privileges of Provincial Assemblies. It must be remembered that the previous provisions were applicable to Assemblies functioning under alien rule. The statement that in a proper case writ jurisdiction of the High Court could be legitimately invoked, where, for instance, the so‑called pro ceedings in the Assembly are really outside the purview of the Constitution Act 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 govern ment 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 is unconceivable that a decision so taken, where the division of Members of the House is on party lines, can be subjected to examine Lion and either confirmation or rejection by the Courts, without one of two extreme dangers arising to the integrity of the very fabric upon which the Constitution is based. . Either the authority ob 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 situation, will be prejudiced in such a way, as to render Their functioning nerveless and even possibly of danger to the politic, were they ever to attempt to resolve disputes been contending political parties inside the House, on the bass of justice, equity and good conscience. The Constitutional provision being that an Assembly shall' function by the method of re, ordering majority votes, and the recording of such votes being governed by statutory procedure which makes it entirely an internal pro t 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 of scrutiny and determination by the Courts. It can be said without disrespect that not only in this country, but in every country v1here Parliamentary government is in operation, not only in past ages when such actions, which good men and true might have judged unconscionable, could be said to be "begotten by the me quit, of the times", but even in the present day it is impossible to expect that decisions taken in an Assembly shall always be based i pure opinions, founded exclusively on the merits of any pro portion 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 pro bably 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 found to be unsuitable for exposure in the light of In so saying, one says no more than that the general outlook 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 decision.
A present‑day Court which undertakes to control the decisions of a Legislative Assembly taken by an internal proceeding on the basis of its own view of what constitutes justice, equity and good conscience, faces no less blank a prospect of success than the Courts which have attempted to control the vagaries of ma than in times long past. Absolutism was finally controlled by the Deve lopment of political power in the people, expressed through their Assemblies, which in due time achieved sovereignty. To assail the pre‑eminence of a popular Assembly may therefore probe to be a first step in the retracing of history.
To invoke principles of justice, equity and good conscience as known to the Courts and as applied by the Courts to the reso lution 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 compro mise, 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.
If a proceeding is an internal proceeding of a Provincial Legis lative Assembly and relates to ‑ its proper business, then under Article 89 it must be recognised as such by the Courts, and the Courts must refrain from interfering with it.
Faiyaz Ali, Attorney‑General of Pakistan, (Abdul Hague, Advocate, Supreme Court with him) instructed by Iftikharuddin Ahmad, Attorney for Appellant.
Respondent No. 1 : Ex-parte.
S. A. Mahmud, Advocate‑General West Pakistan, (M. Anwar, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for Respondents Nos. 2 to 4.
Date of hearing: 1st May 1958.
‑This appeal is brought by special leave against an order of a Full Bench of the West Pakistan High Court dis missing a petition for a writ which was brought before that Court by Mr. Ahmad Saeed Kirmani, M. L. A. West Pakistan, in the circumstances mentioned below.
The West Pakistan Legislative Assembly met on the 20th May 1956 to elect its Speaker as provided by Article 87 of the Cons titution, which required it "as soon as may be, to choose two of its members to be respectively Speaker and Deputy Speaker". The election on the 20th May 1956 was confined to the choice of a Speaker. It is possible that the Assembly did not proceed to elect a Deputy Speaker as well because immediately before the announcement of the result of the division for the election of the Speaker, the Opposition Members had walked out of the Chamber. A transcript of the proceedings of the Assembly has been placed on the record, and in addition, there is also evidence given by Mr. Mumtaz Hassan Qizalbash, who was appointed by the Governor to act as Chairman of the meeting, from which a clear impression may be gained of the very highly contentious nature of the whole proceeding. The total number of members of the Assembly being 310, 301 members attended on the day. A Govern ment had already been formed in advance of the first sitting of the Assembly, which was led by Dr. Khan Sahib, as Chief Minister and leader of the Republican Party. The Opposition was pro vided by the Muslim League Party. After oath‑taking had been completed, and preliminary speeches had been made, as to the duty of conducting the proceedings in conformity with the honour and dignity of the House, certain controversial matters of minor importance were raised and settled and then the matter of election of the Speaker was taken up. The candidate put forward by the Government party was Chaudhri Fazal Elahi. The Muslim League put forward the name of Mir Ghulam Ali Talpur. Controversy as to which name had been first put forward, was set at rest by the Chairman declaring that the question before the House was that "Mr. Fazal Elahi do take chair as Speaker of the Assembly to which an amendment was moved that Mr. Ghulam Ali Talpur do take the chair as Speaker. It was then contended that the amendment should be put first, but this was overruled by the Chairman on the ground that special procedure was provided for the election of a Speaker and thereafter the question was again put whether Chaudhri Fazal Elahi should sit as the Speaker. Thereafter, the Chairman gave the following instructions, viz:
"Gentlemen who want to vote for Ch. Fazal Elahi will go to the lobby through the door on my right hand and come back through the adjacent door after getting their votes recorded. One person can cast only one vote. If anybody casts his vote on both sides, his vote will be cancelled. Officials have been appointed on both the sides that will tick mark. Both, the parties should appoint four persons each for identification. The gentlemen whom the parties have appointed for identifica tion should cast their votes first, and then go for identification. They should please bring to my notice if any mistake occurs".
The reference to casting of votes in these instructions is calculated to cause misconception. Upon a division, no votes are in fact cast in the way that votes are cast at a polling station. The choice of each Member participating in a division is indicated by the fact that if he votes in favour of the question affirmatively, he will move to the right side of the Speaker's chair, towards the tellers who stand at the door of the lobby and will there announce his name, whereupon a tick marl is made against his name. A Member voting against the proposition proceeds similarly towards the lobby on the left of the Speaker's chair. For purposes of identification, representatives of each party were posted at the side of the tellers. This was necessary because the Assembly being a new and much enlarged body, a number of the Members were not generally known. The rule regarding a division which was in force at the material time is rule 63 of the Rules of Procedure which requires that votes may be taken by voices but the. Speaker may direct in certain circumstances, which would include the special case here in question, that a division should be held, for which purpose the bells ate rung to enable the Members to return to their places in the Chamber, when the question is put again and the Speaker is to "direct the Ayes and Noes to their respec tive lobbies". It is important to note that under rule 63, the Members do not express their opinion by marking any piece of paper themselves, but by physically dividing into two groups one on each side of the Speaker. The case is clearly one where, in making his choice it is the first step taken by the Member which counts, provided that step leads 'him up to the tellers, where his name is ticked off on the list. The point is of importance in relation to the particular matters of controversy, which were raised by means of the petition.
While the division was in progress, a number of complaints were made to the Chairman in regard to the treatment of indivi dual Members. The two cases which formed the basis of the petition before the High Court, namely, those of Mr. Dharam Das Varyani and Mir Muhammad Bakhsh Talpur, were among those mentioned, but in addition, as appears from the decisions announced by the Chairman immediately before the division, four other cases were brought to his notice namely those of Mr. Noor Muhammad, Mr. Khair Bakhsh Mari, Malik Barkhurdar and Mr. Qureshi. The Rules of Procedure of the Assembly do not contain any specific provision upon the treatment of such objec tions. The practice of the British House of Commons as reported by May in his monumental work entitled " The Law, Privileges, Proceedings and Usage of Parliament" (Fourteenth Edition at page 916), is as follows:
"The Speaker, when his attention has been called to a breach of order in the course of a division has directed that the division should proceed, and has dealt with the matter when the division was completed".
This was precisely the course of action taken by Mr. Mumtaz Hassan Qizalbash.
It may here be noted as a matter of interest that in the course of the proceedings which preceded the election, references were made to May's Parliamentary Practice, as a source of guidance for the Speaker, on no less than three occasions, and on the third occasion, the Member who made the reference (Mr. G. Allana) said, concerning this book
"Sir, this (May's Parliamentary Practice) I take to be the Bible of all Parliaments working in free, sovereign and democratic countries".
Very recently, on the 3rd of March 1958, at a ceremony in the Chamber of the West Pakistan Legislative Assembly, the High Commissioner for the United Kingdom presented to the Speaker, a specially bound copy of the new edition of May's Parliamentary Practice. In receiving the gift, the Speaker (Chaudhri Fazal Elahi) made the following statement:
" It is commonly said that the greatest gift made b* the British Nation to the humanity is Parliamentary Government. I must add to it that another gift which the British Nation have made is Erksine May's Parliamentary Practice. Without this work few, if any, would have been able to have the necessary " know how" for running 'Parliamentary institutions. For those engag ed in the actual work of conducting the proceedings of a Legis lative Chamber, Sir Thomas Erskine May must always remain a beacon of light".
I therefore need make no apology for referring to this work in this judgment, as an authority upon points of procedure, in the con duct of a Parliament or Legislative Assembly, which are not dealt with in detail in the rules of procedure of that Parliament or Assembly. This may also be a proper place at which to state the opinion that the whole course of development of representative institutions in Pakistan, during the long period when it was a part of the sub‑continent, and since the commencement of its separate existence, is a continuation in its broadest aspects of the course of development of such institutions through more than six centuries in the United Kingdom. Notwithstanding the consti tutional differences between the two countries, it may be stated without fear of contradiction, that so far as concerns the place of the legislature, viz‑a‑viz the other great limbs of the State, the position in Pakistan approximates closely to that which obtains in the United Kingdom. That is a natural consequence of the fact that the representative institutions now operating were introduced for the first time by the British Government during the later years of their long period of dominance over the sub continent. Similar institutions have been introduced in every country outside the British Isles over which from time to time the British Sovereign has, held sway. It is in that sense that I under stand the statement made in the Speech of Chaudhri Fazal Elahi quoted above that "the greatest gift made by the British nation to the humanity is Parliamentary Government". It follows as a natural consequence that the incidents of Parliamentary govern ment as introduced by the British rulers into other territories approximate closely to those of Parliamentary government in their own country, and within their own experience. That experience includes a long period, covering nearly five centuries, of agitated controversies between the House of Commons and the Courts of the King regarding the limits of their respective jurisdictions in respect of proceedings of the House of Commons. At a later stage in this judgment I shall have to deal at some length with the various stages through which that controversy passed and the final conclusion, which was reached, by way of an agreed equili brium between the contending powers. For the present, I think I have said enough to indicate that on questions relating to the British Parliament and to the proceedings of that Parliament, and other Parliaments formed upon the same pattern, May's Parliamentary Practice is both valuable as well as entirely trustworthy, as a guide on all points whether of principle or of detail.
To continue with the narration of the events that took place in the West Pakistan Legislative Assembly (hereinafter referred to as the House) on the 20th May 1956, it is of importance to note the specific allegations, which were then made as to the treatment or maltreatment suffered by Mr. Varyani and Mir Muhammad Bakhsh Talpur. About Mr. Varyani it was said that a Member had seen a Minister and two other persons "taking the vote by force" from him, and I it was said that he "was made to cast his vote against his will". About Mir Muhammad Bakhsh Talpur it was said that he was "kept by force by certain Ministers on the ministerial bench " and was thus "not allowed to exercise his free vote for Mir Ghulam Ali Talpur". Mr. Varyani himself said that he was dragged forcibly and against his wishes, but he admitted that he had voted for Chaudhri Fazal Elahi. At the same time he raised a protest that he was for Mir Ghulam Ali Talpur. It does not appear that Mir Muhammad Bakhsh Talpur said any thing beyond declaring that he was for Mir Ghulam Ali Talpur, except "I wanted to cast my vote but I was not allowed to cast the same". The Chairman made certain enquiries, including enquiries from the tellers, regarding Mr. Varyani's vote. He also enquired into the other complaints which had been made to him and then proceeded to give his decisions, on these cases, as well as those of Mr. Noor Muhammad, Mr. Khair Bakhsh Mari, Malik Barkhurdar and Mr. Qureshi. The decision given regarding Mir Muhammad Bakhsh Talpur was that he had not complained "that he was stopped from voting by any one", which may have refer ence to absence of physical obstruction. Finally, as regards Mr. Varyani, the Chairman appears to have been in some difficulty, as appears from the following statement:
"Now as regards Mr. Dharamdas Motumal, he says that his vote has been recorded against his wishes. Well, I cannot con vert myself into a Court for the decision of this point. I do not share the view that the question cannot be raised in Court. My feeling is that this can certainly be taken to Court and evidence can‑be recorded and a decision obtained. It is difficult for me to say that the vote was not recorded according to his wishes. There are so many conflicting statements by different persons. I also consulted the tellers and they were not coherent in their statements".
There were some brisk exchanges between the Chairman and a Member of the Opposition on this point and it seems that before the Chairman could give a decision (it is possible of course that the decision which he gave was drowned in the uproar) the Opposi tion Members walked out of the Chamber, after which the Chairman' announced that "according to the division list 148 Members have voted for Ayes and 148 Members have voted for Noes". He gave his casting vote in favour of Chaudhri Fazal Elahi and declared that the Ayes' have it. Thereafter a number of congratulatory speeches were made to which the new Speaker replied, and the proceedings were adjourned.
It is of interest to note the various views expressed in the course of the proceedings regarding the jurisdiction which a Court might exercise over the questions which were troubling the House. Mr. Shah Nawaz Pirzada appealed to the Chairman to announce the result "as it is" and suggested that those who disagree might go to a Court of law. He said "the evidence is before you and you can decide on it and if any one disagrees then the High Court is there, the Federal Court is there and then my friend Mr. Abdus Sattar Pirzada can take up the case and he can get a good fee for it". Later, Mr. Sardar Bahadur Khan, Leader of the Opposition made the following statement:
"May I tell you, Sir, that Court is only one of the remedies provided under the law but in a matter of this kind this House is supreme. If a member of this House is not allowed to exercise his right of vote, I do not think he can get protection from anywhere else".
The third Member Mr. G. Allana said:
"I would rather oppose the suggestion made by the Honour able Member that you declare the result as it is and let the matter go to the Court of Law. Sir, that is the easiest way o running away from the verdict of this House. Sir, through you I would like the Members to know that there is a complete bar in the Court of law on the proceedings of the Legislative Assembly. Now, what would happen in case we have a perverse decision today.) The doors of the Court would be closed to us and these very gentlemen on the other side who say that if we do not agree with decision of the Chair we should go to the Court will say that the door of the Court are closed to you under the Constitution. Then, Sir, you can very well understand that it is only you that we can look up to".
The observations of the Chairman on this point have already been reproduced above. He thought the matter could "certainly be taken to Court and evidence can be recorded and a decision obtained".
Mr. Ahmad Saeed Kirmani, presumably a ' member of the opposition, approached the High Court of West Pakistan for a writ of Quo‑warranto, Mandamus, or any other appropriate writ, order or direction, declaring the election of the Speaker of the 20th May 1956 to be null and void, directing Choudhri Fazal Elahi to prove his lawful authority to function as Speaker and directing Choudhri Fazal Elahi and the Secretary of the West Pakistan Legislative Assembly to enable Mir Muhammad Bakhsh Talpur and Mr. Varyani "to cast their votes according to their free will for the lawful election of the Speaker of the Assembly". Mr. Varyani and Mir Muhammad Bakhsh Talpur supported the petition with affidavits, the one saying that he was forcibly dragg ed to the Ayes' lobby and the other that he was forcibly detained by some Government Members, and thus prevented him from voting. Affidavits were filed by a number of persons on the opposite side, and the learned Judges dealt with the cases on the basis of these affidavits, the record of the proceedings of the House, and evidence given on solemn affirmation by the two tellers in the Ayes' lobbies, being offices of the Assembly, and by Mr. Mumtaz Hassan Qizalbash. The case was heard by a full Bench of five Judges and the main judgment was delivered by S. A. Rahman, C. J. with whom Abdul Aziz Khan and Ortcheson JJ agreed while Kayani J and Shabir Ahmad J wrote separate notes of their own opinions. In the result, the petition was dis missed. The petitioner has not appealed but the Central Govern ment of Pakistan presented a petition to this Court for Special Leave to Appeal in order to examine the correctness of the views expressed in the judgments delivered in the High Court upon the question of the High Court's jurisdiction under Article 170 in relation to proceedings of a Provincial Assembly, in the light of the provision in subsection (1) of Article 89 of the Constitution that:
"the validity of any proceedings in a Provincial Assembly shall not be questioned in any Court".
These views will be dealt with in detail later. It was urged in the grounds of appeal that the interpretation put upon Article 89 by the High Court was unsustainable, and was liable to give rise to great difficulties in the operation of the Constitution. The words used to express this fear, in ground No. 9 are as follows: ‑
"That the learned Judges have, on the other hand, in coming to their conclusions, completely lost sight of the innumerable difficulties, complexities and frustrations that might result if the door was opened to litigation in Courts by or at the instance of adventurous politicians regarding the validity of the proceed ings either in the Provincial Assemblies or in the National Assembly".
In granting special leave, emphasis rims placed upon the question as to whether the view expressed in the three judgments by their, learned Judges who wrote them were "in accordance with the text and the spirit of the Constitution".
The learned Attorney‑General appearing for the Central Government of Pakistan has been unable to satisfy us that that Government has locus standi to pursue this appeal. The entire set of facts out of which the case arose was confined to the Provincial Legislative Assembly. They do not in any way whether directly or indirectly touch the Central Legislature i.e., the National Assembly, much less the Central Government, which is a wholly distinct entity. The argument that the immunity given to proceedings of a Provincial Assembly under Article 89 has been conferred upon proceedings of the National Assembly in precisely the same terms under Article 56 does not serve to provide for the Central Government any such interest in the present proce edings as would make that Government a proper party in the case. The rights which are affected by the observations of the learned Judges of the High Court, should they be put into opera tion in any subsequent case, are not rights of the "Provincial Government much less the Central Government, but are distinctly and separately the rights of the Provincial Assembly. Should the corresponding rights possessed by the National Assembly ever be in danger, we feel no doubt that that Assembly is competent to assert those rights in modes known to law including the lex et consuetudo Parliament, and may thus succeed in obtaining a definitive decision from the Courts. But there is no doubt whatsoever that it would altogether be out of the way for the National Assembly to attempt to bring itself into the present proceedings for the purpose of having in advance, a declaration of its own rights under Article 56, when the matter in dispute before the Court is as to the rights of a Provincial Assembly under Article 89. And as for the Central Government, the efforts of the Attorney‑General to establish any direct interest on behalf of that Government in the present proceeding's have been wholly unfruitful.
The appeal is therefore liable to dismissal on this short ground. We have, however, had the advantage of hearing the Attorney‑General supported by the Advocate‑General of West Pakistan on behalf of the Speaker of the West Pakistan on Provincial Assembly. At the same time, the case is one of great importance, from this point of view, namely, that the learned Judges of the High Court have, by their observations, raised de novo a very ancient controversy between the Courts and the superior Assemblies, in a manner which is liable to give rise to misconcep tions and perhaps to lead to those injurious results which have been indicated in ground No. 9 of the grounds of appeal, quoted above. Upon examination of the question, with the valuable aid of materials collected and set out in chronological order, with great clarity in May's, Parliamentary Practice, this Court is in a position to state the correct principles governing the resolution of the apparent conflict between Article 170 of the Constitution and the relevant provision of Article 89. It is necessary and desirable from every point of view that that opinion should be stated, in order to the more harmonious working of the Constitution.
The subject relates to the sphere of Parliamentary privilege. This expression has been defined as "the sum of the peculiar rights enjoyed by each House collectively as a Constitutional part of the High Court of Parliament, and by members of each House individually, without which they could not discharge their functions, and which exceeds those possessed by other bodies or individuals". It is added that "this privilege, though part of the law of the land, is to a certain extent an exemption from the ordinary law." (May, page 41). With special reference to the House of Commons, which being a popular House, is more akin to a Provincial Legislative Assembly in Pakistan than the House of Lords, the Parliamentary privilege has been defined as "the sum of the fundamental rights of the House and of its individual members as against the prerogatives of the Crown, the authority of the ordinary Courts of law and the special rights of the House of Lords." (May, page 41). There is a long history behind the formulation of the doctrine as applied to the House of Commons, which had a fiercer and more prolonged struggle for the assertion of its own privileges than had been necessary for the House of Lords, which had always been a body exercising judicial jurisdiction of pre‑eminent nature. One of the difficulties against which the House of Commons had to struggle was that the House of Lords was the ultimate Court of Jurisdiction, and by submitting its domestic affairs to the jurisdic tion of the ordinary Courts, it inevitably assumed a position of permanent inferiority to the Souse of Lords. Consequently the House of Commons had to struggle not only against the Crown and the Courts, but also against the House of Lords, and in the course of the struggle, it sought for a considerable time, the special protection of the King for its customary rights. In the course of repeated efforts to assert its rights, its claims became, in the words of May, "hardened into legally recognised privileges". This development may be placed in the late fifteenth century, but the claims were by no means universally accepted during the three ensuing centuries. In the words of May, "not until the nineteenth century was equilibrium reached and the limits of privilege prescribed and accepted by Parliament, the Crown and the Courts". In the meantime, however, as far back as the, year 1704, it was settled by a resolution of the House of Lords, assented to by the House of Commons, that "neither House has any power by any vote or declaration to create to themselves new privileges, not warranted by the known laws and customs of Parliament".
A few years earlier, by Article 9 of the Bill of Rights, the privilege of the Houses of Parliament were assured to them by the following declaration:
"Freedom of speech and debate or proceedings in Parliament ought not to be impeached or questioned in any Court or place outside Parliament".
In the course of the years, this declaration in so far as it related to the proceedings of Parliament came to be accepted as recognising . the right of each House to be the sole judge of the lawfulness of its own proceedings", which position was asserted before and accepted by the Courts in the case of Bradlaugh v. Gossett (1), where Stephen, J. made the following observation :‑
"I think that the House of Commons is not subject to the control of her Majesty's Courts in its administration of that part of the statute‑law which has relation to its own internal proceedings".
In that case also, the exclusive jurisdiction of the House was declared to cover the determination "of a right to be exercised within the House itself and in particular the right of sitting and voting". As regards the meaning of the expression "proceed ings", reference is made by May to a number of definitions. One of these definitions is contained in a report of a Select Committee on the Official Secrets Acts in the year 1938‑39 and reads as under :‑
"It covers both the asking of‑ a question and giving written notice of such question, and includes every thing said or done by a Member in the exercise of his functions as a Member in a committee of either House, as well as every thing said or done in either House in the transaction of Parliamentary business".
Another quotation from a Canadian judgment is given on the same page (page 62) from which a fair impression of the meaning of the expression "proceedings" may be obtained. It reads as follows :
"I desire it to be understood, however, that I do not hold that a Member of Parliament is not amenable to the ordinary, courts for anything he may say or do in Parliament. I merely say he is not so amenable for anything he may say or do within the scope of his duties in the course of Parlia mentary business, for in such matters he is privileged and protected by lex et consuetudo Parliament."
The possibility of things being said or done in Parliament which are within the jurisdiction of the ordinary Courts is here clearly envisaged and is further clarified in a passage on page 63 of May's book in the following words:
"It may prove to be true that things said or done In Parlia ment, or some of them, are not withdrawn from the course of criminal justice. But, is so, that is because they do not form part of proceedings in Parliament."
The limitations which the privilege of Parliament in regard to its own internal proceedings imposes upon the jurisdiction of the ordinary courts is the subject of a very careful study in Chapter IX of May's book which is headed "Jurisdiction of the Courts in matters of Privilege" where a careful account in chronological form is given of the long course of conflict which, so far it is relevant to the present case, rests with the acceptance of the limitation in regard to internal proceedings of the Houw ef (1) 12 Q. B. D. 273 Commons, so clearly expressed in the case of Bradlaugh v. Gossett, cited above. That litigation covered the years between 1880 and 1885, but the matter had been before the Courts from a much earlier date. May cites a case in the year 1452 of one Thorpe, then Speaker of the House of Commons who had been imprisoned at the suit of a Royal prince and the House of Lords had confirmed the order of imprisonment although Judges had advised that he was entitled to his release. In approaching the matter, the Judges displayed a spirit of hesitation and extreme respect for the autho rity of Parliament which is happily no longer evinced in countries where a proper equilibrium between the Executive, Legislature and the Judiciary has been established in the form of Parliamentary Government according to the British pattern. In Thorpe's case, the Judges noted that never before had the Judges been asked to adjudicate upon the privilege of the "High Court of Parlia ment" which was so high and so mighty "that it makes and unmakes law". They also pleaded that they were ignorant of the determination and knowledge of the privilege of the "High Court of Parliament". In discussing the expression "High Court of Parliament" which frequently appears in the relevant literature of the times, May observes that while the House of Lords has always been and still remains a true Court, from which there is no appeal, the claim of the House of Commons to this high estate was more doubtful, and so was asserted and accepted in stages. He remarks that "it was probably owing to the medieval inability to conceive of a constitutional authority otherwise than as in some sense a Court of justice that the Commons succeeded in asserting their right to commit offenders on the same terms as the Lords". The conception of a law of Parliament was also of very early origin. As far back as the year 1330, it 'was claimed on the basis of lex parliament that members of the Houses had a right to be tried exclusively by their respective Houses and were not to be punished in any inferior Court for their conduct in Parliament. That right is no longer either claimed or recognised to the same extent, but a further branch of the lex parliament, namely, that each House has the right collectively to discuss subjects of its own choice without reference to the King, and that individual members in debate can speak their mind with immunity, is generally recognised and accepted at the present time.
Then, in 1664, in .the case of Member of Parliament named Evelyn, who had pleaded privilege in an action, Bridgman C. J., foreshadowing the ultimate resolution of the conflict of jurisdic tion, asserted the power and duty of the Courts to determine questions of Parliamentary privilege arising in a manner incidental to their proper jurisdiction, denied that Parliamentary decisions on privilege were necessary conclusive, but at the same time admitted that Parliamentary jurisdiction was exclusive over matters arising ab intra. In 1682, two Judges of the King's Bench made a similar admission under circumstances of considerable personal distress. There one Topham, Serjeant‑at arms of the House of Commons, had effected the arrest of a person, and in an action by the arrested person, had pleaded privilege which the King's Bench disallowed. Thereupon the House of Commons declared the judgment to be illegal, and in violation of the privileges and rights of Parliament. In pursuance of the declaration, they sent for the Judges and having heard their explanation, directed that they should be imprisoned. It is noteworthy that in face of personal peril, while justifying themselves on other grounds, the Judges admitted that "when the entire matter is transacted in the House, it would have been proper to plead such matter to be outside the jurisdiction of the Court."
Passing over some very strongly contested cases relating to the exclusive claim of jurisdiction by the House of Commons over questions concerning the right to vote at a Parliamentary election, mention may next be made of the case in 1811 of Abbot, then Speaker of the House of Commons, who had directed imprisonment of one Burdett pursuant to the order of the House of Commons, and was defendant in an action for trespass which was dismissed. The judgment was maintained up to the House of Lords on the ground that the House of Commons had acted within its powers and that these powers were no more than those enjoyed by the Superior Courts. At the same time it was envisaged as possible that "Cases might arise in which the Courts would have to decide on the validity of a claim of privilege". A case more directly in point arose in 1836. The Parliamentary Publisher, namely Hansard was sued for libel in relation to publication of certain papers by order of the House of Commons. Hansard pleaded privilege, and in support, the Attorney‑General argued that "the High Court of Parliament" was a Supreme Court, and its law was a separate law, and further either House was com petent to declare, with finality, on any question of Parliamentary privilege. Four Judges rejected the plea. Deman. C. J., asserted the right of the Courts to decide whether a claim of privilege was within the jurisdiction of the House claiming it, whether the question arose directly or incidentally, denied the doctrine of ignorance of the law of Parliament, and while admitting that the "High Court of Parliament" was Supreme denied that either House by itself enjoyed an eminent power to bring a matter within its privilege by mere declaration. Nevertheless all the Court Judges were agreed that "over its own Internal proceedings, the jurisdiction of the House was exclusive". It is of interest to note that this case continued for several years to have repercus sions of a somewhat alarming character such as commitment to prison by the House of Commons of the Plaintiffs, who had obtained decrees, as well as against Sheriffs who had acted to recover under the decrees obtained in repeated actions. The matter was not concluded until an Act was passed in the year 1840 giving protection to Parliamentary Papers published under autho rity. Finally, mention may be made of the case of Bradlaugh referred to above, who had been elected a member of Parliament, but to whom the House refused the right to take an oath and directed its Serjeant‑at‑arms to exclude him from the House until he shall engage not to further disturb the proceedings of the House. The disturbance arose directly from the refusal of the House to allow Bradlaugh to take the oath, which he was entitled under the law to take. Nevertheless the Queen's Bench refused relief to Bradlaugh against the denial of his rights by the House of Commons, holding that "the order under which the Sergeant acted related to the internal management of the procedure of the House over which the Court had no jurisdiction. That was declared as far back as the year 1884; a. considerable time before the first steps were taken for the introduction of the Indian sub continent to the ways and modes of Parliamentary self‑government.
The conclusions reached by May as a result of examination of the whole course of authority is expressed on page 173 follows :‑
"So far the position reached seems capable of being briefly stated as follows. The jurisdiction of a House of Parliament over its own internal proceedings is exclusive ; but the Courts claim jurisdiction over matters of privilege which affect the rights of persons exercisable outside Parliament".
Over the rest of the field of, privilege as claimed by the House of Commons, there is yet no' unanimity, so that it is possible for writers on constitutional law to say that "there may be at any given moment two doctrines of privilege the one held by the Courts, the other by either House, the one to be found in the Law Reports, the other in Hansard and there is no way of resolving the real point at issue should the conflict arise". In a summary of the conclusions to be reached on the basis of the decisions in the cases cited, May points out at page 174 that while Parliament which consists of the Sovereign and the two Houses is supreme, this is a legislative supremacy and is without effect upon the privilege jurisdiction of either House acting singly; that since it has been agreed since 1704 that neither House can itself add to its privileges, Parliamentary privilege is objective and its extent is' ascertainable, and conse4ently, belongs to the law of Parliament which is a part of the law of the land. ‑The Judges are therefore bound to take judicial notice of Parliamentary privilege. The Courts have also recognised certain exclusive jurisdictions of the Houses in .the field, of privilege, of which only one is relevant namely that "the control of each House over its internal proceedings is absolute and cannot be interfered with by the Courts".
This is the background which must be borne in mind in construing the provision in Article 89 of the Constitution that:
"the validity of ,any proceedings in a Provincial Assembly, shall not be questioned in any Court".
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 publica tion 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. 1 consider that in a similar way, the protection granted to proceed‑, ings 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.
In this view of the matter the question before the High Court, and which alone the High Court could properly investigate, was‑are the proceedings whose validity is impugned fairly within the meaning of the expression "internal proceedings of the Provincial Assembly" To that question, it is plain that there could only have been a single answer viz, in the affirmative. Everything that happened of which complaint was made in the case happened in the Chamber of the House, under the very eye of the Chairman. It happened in the course of a division, which was essentially and peculiarly a proceeding of the Legislative Assembly. The division was taken for the purpose of electing a Speaker, a matter, which was wholly and exclusively a concern‑of the Legis lative Assembly. A division involves voting by Members, and by members only; it can‑only be carried out within the Chamber of the House. These are proceedings, which form part of the very essence of Parliamentary activity. In the course of the division questions of contention were raised, and these were supported by arguments of partisans addressed to the Chairman in due form, after which the Chairman informed himself by such means as were available regarding the true facts of the incidents alleged. As has been seen above, in dealing with these questions, the Chairman followed' the established‑ practice of the Speaker of the House of Commons. After giving his decision on all points of contention, the Chairman announced the result of the division, as it was his duty to dog under rule 63 of the West Punjab Legislative Assembly Rules Sub‑rule (6) of the same rule reads as follows:
"The announcement by the Speaker of the result of voting by division shall not be challenged".
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. At pages 403 to 407 of May's Parliamentary Practice, there are discussed ways and means by which errors occurring in divisions may be corrected, and the votes of uncounted members may be allowed: In the same discussion will be found a reference to the' case of a Member who through inadvertence votes in the wrong lobby. The rule is that the vote is to be counted in the lobby in which such a Member presented himself, despite his intention to go to the other lobby, which clearly points to the fact that the choice of the Member becomes determined once for all when he presents himself in a particular lobby. On consideration of all the facts, as they appear in the case, I feel no hesitation in concluding that the proceedings in question were wholly within the privilege of the House, and wholly outside the jurisdiction of the Courts.
These aspects, which appear to me to be the essential and true aspects from which the matter in dispute required to be examined, do not appear to have been placed before the learned Judges in the High Court. The leading judgment shows that the question of conflict between the relevant privilege embodied in Article 89, and the power of a High Court under Article 170, was regarded as a matter of pure construction, which was attempted by reference to the earlier provision in the Government of India Act, 1935, relating to the privileges of Provincial Assemblies, and certain .hypothetical cases upon which Counsel were asked to state their opinions. As to the previous provisions, it must be remembered that they were applicable to Assemblies functioning under alien rule. The historical background of the provision in Article 89 is not dealt with in any one of the three judgments, and it is therefore not surprising to find therein expres sions such as the following :‑
< [if supportLists]>(1) "the so‑called proceedings of the Assembly in this case should not be described as proceedings within the meaning of Article 89 at all, because they were vitiated ,by coercion, duress and mala fides",
to which the answer given was
(2) "the proceedings do riot appear to be vitiated by any coercion, duress or mala fides:"
The learned Chief Justice expressed himself upon the general question in the following words:
"I have formed the opinion that in a proper case, the writ jurisdiction of this Court would be legitimately invoked where for instance, the so‑called proceedings in the Assembly are really outside the purview of the Constitution Act."
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 jurisdic tion of the High Court. The means of correction, which are contemplated by a Constitution providing for a form of Parlia mentary 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 of two extreme dangers arising to the integrity of the very fabric upon which the Cons titution 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 statutory procedure 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 of scrutiny and determination by the Courts. I hope I can say 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 un-conscionable, could be said to be "begotten by the inequity of the times", 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 conten tion with each other is a very close one, will often be found to be unsuitable for exposure in the light of day. In so saying, I say no more than that the general outlook 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.
These decisions are as definitive and carry the same authority as the decisions of the absolute monarchs of early times, whose least whim, governed by desires which were more often vicious than virtuous formed the law for the entire people. Le Roi le vault is a cry from Norman times in English history, which still echoes, though with a different music, in the corridors of Parlia ment. I conceive that a present day Court which undertakes to control the decisions of a Legislative Assembly taken by an internal proceeding, on the basis of its own view of what constitu tes justice, equity and good conscience, faces no less bleak a prospect of success than the Courts which have attempted to control the vagaries of majesty in times long past. Absolutism was finally controlled by the development of political power in the people, expressed through their Assemblies, which in due time achieved sovereignty. To assail the pre‑eminence of a popular Assembly may therefore prove to be a first step in the retracing of history.
It is on that ' basis that, with respect, I consider that the view of the learned Chief Justice that:
"in a proper .case the writ jurisdiction of the High Court could be Legitimately invoked where for instance, the so called proceedings in the Assembly are really outside the purview of the Constitution Act,"
is stated too broadly and is. apt to lead to dangerous misconcep tions. I do not propose to embark on the equally dangerous task of attempting to say in what particular cases, proceedings within an Assembly could possibly fall within the jurisdiction of the Courts. The question is so intricate, and its resolution is fraught with such grave dangers to the internal structure of the Constitution of the country, that it must be left to be decided in relation to the facts of a particular dispute when it arises, and then it must be decided upon a consideration not only of the wording of the Constitution, but with a full comprehension of all the phases of history which form the background of that Constitution.
It is desirable that I should notice certain observations occurring in the judgment of Kayani, J. There is for instance the following passage:
"I cannot bring. My-self to hold that any provision in the Constitution was intended to divert the Court from the path of justice, equity and good conscience. The Constitution represents the will of the people, and the will of the people is to be construed in favour of justice, equity and good conscience. Of all Parliaments and Assemblies in the world, the privilege of practising fraud and coercion, or of acting with malice, was certainly not to be reserved for the Assemblies
of Pakistan, as though it were a fundamental right of the people".
With great respect, and bearing., in mind that I have already expressed my opinion above' 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 resolu tion 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. 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:
"In short, I do not recognise a proceeding as an Assembly proceeding if it is ,found oil' coercion, fraud or bad faith."
If a proceeding is an internal proceeding of a Provincial Legislative Assembly and relates to its proper business, then under Article 891, it must be recognised as such by the Courts, and the Courts must refrain from interfering with it.
In the judgment of Mr. Justice Shabir Ahmad also, there are observations to which the same effect, as those reproduced above from the judgment of Kayani J. From among these passages I select the following for citation viz :‑
"I have no hesitation in holding that Courts are not power less with regard to examining the validity or otherwise of the proceedings in the Assembly, and that, if the facts alleged in the present case were established, Article 89 of the Constitu tion will have been of no avail to the respondents."
I have already stated above the reasons which in my view invalidate the second proposition contained in the above passage, and with respect to the learned Judge; I need say no more regarding his view than that I find it impossible to agree with it.
But, since in the result the learned Judges dismissed the writ petition, as it was their ‑duty to do upon a true appreciation of the jurisprudence of the matter, there is no occasion for inter ference by this Court. I would therefore dismiss this appeal but
would make no order as to costs.
.
A. H, Appeal dismissed.
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