P L D 1993 KARACHI 312




Per Nasir Aslam Zahid, C.J.(a) Constitution of Pakistan (1973) Art. 64 & 127-

The resignation letter had been intercepted by the maker himself by writing the said letter before the resignation letter had reached the Speaker and as such, in our view, said letter of resignation letter had reached the Speaker and as such, in our view, said latter of resignation could not be effective, as it had been withdrawn. Arguments were advanced at some length by the learned counsel on the question of duress and coercion but, in our view, the said arguments were not relevant and misconceived as the writer of resignation letter can withdraw his resignation before it reaches the Speaker. Resignation can only be given effect to, if it reaches the Speaker, the competent authority, under article 64 read with Article 127 of the Constitution in so far as Provincial Assemblies are concerned and, if before the resignation letter reaches the Speaker, the said resignation, even if given voluntarily, becomes ineffective and orders cannot be passed by the Speaker in such a situation giving effect to the resignation and declaring the seat of the member vacant.

In our view, therefore, in these admitted facts, the Speaker did not act legally in giving effect to the resignation dated 25-2-1991[p. 317] A
(b) Constitution of Pakistan(1973), Articles 64 &199-

In our view, the present petition is not liable to be dismissed on the ground of laches. We are also of the view that, in the circumstances of the case, the petitioner is entitled to relief and the discretionary remedy under the Constitutional jurisdiction is not to be withheld from the petitioner.[p. 319] B

As a result, this petition is allowed by holding that the Notification dated 27-2-1991 of the Speaker declaring that the petitioner had resigned from membership of the Provincial Assembly of Sindh with effect from 27-2-1991 and that his seat had become vacant under Article 64 read with Article 127 of the Constitution has been passed without lawful authority and is of no legal effect. As a consequence, election of respondent no. 3 to the said seat in question in the bye-election is also held to be without lawful authority and of the legal effect. [p. 321 & 322] E

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