KARACHI  - The Sindh High Court (SHC) on Saturday dismissed the decision of provincial assembly to cancel Arbab Ghulam Rahim’s membership of the House.

A division bench of the SHC comprising Justice Munir Akhtar and Justice Azhar Hassan gave the ruling on an application moved by Arbab Ghulam Rahim, the former Sindh chief minister.

The court also cancelled the notification of Election Commission of Pakistan (ECP) for by-election in PS-60 Tharparkar on May 19. The nomination forms were to be issued from April 16 while scrutiny of the papers was to be held on April 18 and the polling was on May 19.

The hearing was adjourned till April 19. Arbab Rahim, through his attorney Arbab Inayatullah, had assailed the Sindh Assembly’s motion that unseated him from the provincial assembly’s constituency PS-60 Tharparkar on March 21.

The motion was moved in the Sindh Assembly by the PPP legislators, submitting that Arbab Rahim had been absent for 40 consecutive working days, therefore, his seat should be declared vacant.

The contention of the petitioner was that the ruling political party had victimised him for having turned down an offer from the PPP leaders to persuade a certain candidate to the Senate to withdraw from the election.

The bench in its order observed that the petitioner, who was elected to the Sindh Assembly, challenging the notification that was issued by the provincial assembly on March 22, 2012 declaring the seat to which the plaintiff was elected as vacant pursuant to sub-rule (1) of the rule 56 of the rules of procedure of the provincial assembly read with clause (2) of article 64 read with article 127 of the Constitution.

The counsel for the petitioner states that consequent upon the aforesaid seat having been declared vacant, the respondent No. 2 (election commission), has through its press release dated April 13, 2012, issued the schedule for the bye-election to be held for the seat to which the petitioner was elected.

In terms of the aforesaid provisions of the constitution read with the rules of procedure of the Sindh Assembly, it is provided that the provincial assembly may declare the seat of a member vacant if, without leave of the assembly, the member remains absent for 40 consecutive days of its sittings.

In para 17 of the petition, the case put forward by the petitioner is that in fact only 38 days passed before the notification declaring his seat to be vacant was issued and that therefore, the constitutional mandate in this regard has not been observed.

In other words, article 64 (2) was not applicable since the minimum number of days that must elapse (i.e. 40 days, which must be consecutive) had not passed.

The counsel for the petitioner further stated that prior to the sessions identified in para 17, applications for leave of absence on behalf of the petitioner were filed in accordance with law in respect of each session, and without fail leave of the absence was duly granted by the House.

However, in relation to, and starting from, the session noted in para 17, although applications for granting leave of absence were filed in respect of each of the sessions therein identified, the applications were deferred and it was only after the last session mentioned in the said para 17 that the matter of his leave of absence was taken up and the declaration made that his seat stood vacated.

The counsel submitted that the leave applications filed on behalf of the petitioner been taken up in each of sessions noted above as is the mandate of Rule 55, and leave refused, the petitioner would be taken appropriate remedial steps including attending the subsequent sessions of the Assembly.

He submitted that the entire exercise against the petitioner is tainted by malice in law and that therefore, for all of the aforesaid reasons, the relevant notification merits being suspended. “We have seen the relevant provisions of the constitution as also the relevant rules of the Rules of Procedure of the Sindh Assembly. 

Clause (1) of Article 69 read with Article 127 provides that the validity of any proceedings in the Assembly shall not be called in question on the ground of any irregularity of procedure and prima facie on one view of the matter, the fact that the assembly in the present case did not take up the leave applications of the petitioner in each of the sessions identified in para 17 of the petition is merely a matter of procedure and hence beyond the jurisdiction of the courts.

However, at the same time notice must be taken of the provisions of clause (2) of article 64 and the cumulative effect of the assembly not taking up the leave applications in the successive sessions, resulting in the petitioner’s seat being declared vacant, must also be taken into consideration.

In our view, appear prima facie the present petition raises substantial questions regarding the proper interpretation and interaction of, inter alia, clause (1) of article 69 on the one hand and clause (2) of article 64 on the other, and the matter of the proper interpretation and interaction of constitutional provisions is a matter that is well within jurisdiction of this court”, said the verdict.