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Civil Appeal No. 57 of 1965, decided on 8th October 1965.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 26th May 1965, in Writ Petition No. 824 of 1965).
From the judgment of Cornelius, C. J.
--Ss. 38,53,57 & 73 Count of voter Proposition that count of votes must be finalized under S.53 (stage of appeal before Election Commission) qua jurisdiction of Election Tribunal in an election petition under S. 57, read with Ss. 72 & 73, not supported ‑ Counting of votes not outside purview of Tribunal.
‑Reference to section 73 of the National‑ and provincial Assemblies (Elections) Act (VII of 1964) will show that counting of votes, that is exclusion of invalid votes and inclusion of "valid votes which have been wrongly excluded, is not outside the purview of the Tribunal. Section 73 provides that when after the conclusion of the trial "it appears that there is an quality of votes between two or more contesting candidates", the Tribunal is to inform the Commissioner accordingly, who shall thereupon direct that a fresh poll shall be taken. This clearly implies that an inequality of votes has been reduced to an equality by inclusion of votes which should not have been rejected, and/or exclusion of votes which should not have been included, as a result of the Tribunal finding certain corrupt or illegal practices or illegal acts to have been committed. In the present case, the Fission question raised was as to whether ballot papers which included foreign objects should be excluded from the count under section 38, subject to appeal under section 53, for that reason alone The Member (Election Commission) was of the view that that reason was not sufficient, for it was necessary to produce evidence, of a design behind the collusion of such foreign objects, before they could be excluded. This clearly implied the requirement of proof of a corrupt practice or of an illegal act as indicated above. It was the view of the Member that he had jurisdiction to enquire into these matters and further he has used expressions indicating that it was proper that such matters should be taken before an Election Tribunal under section 57. If it were found that the ballot papers in question were tainted by corrupt practice or an illegal act, it would be for the Tribunal to exclude them for the purpose of their final decision. Thus, the power given to the Tribunal by section 73 of the Act‑would be attracted consequently, I am unable . . . . . to support the conclusion that the count of votes must be finalised under section 53, qua the jurisdiction of the Election Tribunal under the later provisions of the Act.
It is wrong to suppose that the effects of such practices are confined to‑ the practitioners. It is a matter of vital public interest relating to the purity of elections that such practices should be brought to light and duly investigated. They do not merely carry the penalty of disenfranchisement for the voter, or the loss of the vote to the person in whose favour it is cast. There is a penalty also, by way of disqualification for the franchise of persons found guilty of such corrupt or illegal practices for a maximum period of four ears under section 104, apart from which there are criminal penalties provided section 80 and the various sections in Chapter VII of the Act. For a Returning Officer or a Member to find, in the way of inference or presumption, that votes are tainted with a corrupt practice and on that basis to exclude them involves a pre‑judgment of a serious nature on a matter wholly beyond their jurisdiction. Such a finding would, except perhaps in a very exceptional case, result in suppression of matter vitally affecting the purity of elections, which in the public interest should be fully investigated.
--- Ss. 36, 38(2) (b) & 53‑Presiding Officer separating foreign objects from ballot papers instead of placing such ballot papers in separate bag as required by S. 36‑Member (Election Commission) not right to say that he had no power to reject any particular ballot papers only because there was no means of knowing in which of them such foreign objects had been enclosed.
, --Arts. 98(2)(a)(ii),116 & 117 read with Art. 171(1)‑Articles 116 & 117 (exemption from legal process, of President, Governors and Ministers in certain matters) do not provide any assistance for interpretation of Art. 171(1) (relating to final determination of election disputes).
, Art. 98(2)(a)(ii) read with Art. 171(1)‑Article 98 "wholly new provision and confers a new jurisdiction" Erroneous to regard it as a "continuation" of power of issuing "writs" under Laws (Continuance in Force) Order (1 of 1958), Art. 2(4) or under Constitution of Pakistan (1956), Art. 170‑Power under Art. 98 given by Constitution of 1962, not "inherent" in High Court‑Article 98 confers power on High Court "subject to the Constitution" while Art. 171 is not made so subject‑Terms of Art. 171(1) to be construed and given their fullest meaning irrespective of anything contained in any other Article of Constitution‑Disputes arising out of elections held under Constitution to be "finally determined" under National and Provincial Assemblies (Elections) Act (VII of 1964) Con stitutional requirement of finality of determination, to be placed on higher level than similar requirements contained in "sub‑constitutional" statutes‑High Court competent to invoke its superior authority under Art. 98, in respect of "finality" of actions of Tribunals constituted under such sub- constitutional statutes, in order to impose upon such Tribunal the requirement that its actions should be within its jurisdiction and their performance with lawful authority.
Art. 98(2)(a)(ii) read with Art. 171(1)‑High Court's power under Art. 98‑Does not extend to interference, on ground of "error of law" or absence of "lawful authority", with final determinations of election disputes under the National and Provincial Assemblies (Elections) Act (VII of 1964)‑[Badrul Haque Khan v. The Election Tribunal, Dacca P L D 1963 S C 704; Nat Bell Liquors Ltd.'s case (1922) 2 A C 128 rel.; Baldwin and Francis Ltd. v. Patents Appeal Tribunal (1959) 2 All E R 433 ref.; Northumberland Com pensation Appeal Tribunal's case (1952) 1 All E R 122 and Patents Appeal Tribunal's case (1957) 1 All E R 227 dissented from; Muhammad Saeed's case P L D 1957 S C (Pak.) 91 considered.]
Development, in colonies and dependencies qua plenary jurisdiction of the King exercisable through Judicial Committee of Privy Council‑Interference by Courts in decisions of Election Tribunals‑Privy Council's jurisdiction of a' wider scope than power exercisable by King's Bench Division through prerogative writs, yet Privy Council "firmly set its farce" against interference with decisions of Tribunals established for determination of election disputes, in colonies and dependencies‑[Parnis v. Agius 46 T L R 194 ref.].
Art. 98(2)(a)(ii) read with Art. 171(1)‑Law of election, of "special character"‑Election jurisdiction treated "by and large" as outside processes known to established Courts such as the High Court, notwithstanding "judicial process" prescribed for exercise of jurisdiction by ad hoc Election Tribunals‑Decision reached by such Tribunal intended by Art. 171(1) to be "final"‑[Example cited from Canon law as administered by Eclesiastical Courts, with decisions of which kings bench refused to interfere by certiorari]‑Expression "lawful authority" occurring in Art. 98 includes, when referring to Election Tribunals, "resolution of all questions of law, including questions of "interpretation" of relevant law, and of "all questions of fact"‑(Chancellor of St. Edmundsbury and Ipswich Diocese L R (1948) 1 K B 195 ref].
Art. 98(2)(a)(ii)‑No order can be issued under Art. 98 to Supreme Court or a High Court‑Judge of High Court acting as Member of Election Commission for decision of certain election disputes does not act as a High Court Judge but as persona designata, yet issuing an order to such Member would give rise to an "aspect of ludicrousness" and would be against the "weighty" consideration of "necessity of maintaining a high degree of comity among Judges of Superior Courts".
, Art. 98(2)(a)(ii) read with Art. 171(11 and National and Provincial Assemblies (Elections) Act (VII of 1964), S. 53‑"Final" determination of question of law including question of interpretation of relevant law placed by Art. 171(1) "within exclusive and final Jurisdiction of designated authority"‑High Court must exercise its power under Art. 98 "subject" to this provision of Constitution‑High Court cannot, by adopting different interpretation, declare act of such authority to be "without lawful authority"‑Member deciding that certain ballot papers (with which foreign objects had been enclosed) could not be rejected "unless the foreign objects were inserted as a result of pre‑arrangement"‑Existence of such pre‑arrangement can only be adjudicated upon by an Election Tribunal‑Member not deciding question of pre‑arrangement High Court not empowered to interfere under Art. 98 on ground that party affected was left with "no other adequate remedy".
Art. 98(2)(a)(ii) read with Art. 171(1)‑"Without lawful authority"‑"Lawful authority has a wider significance than "jurisdiction"‑Embraces authorities other than Courts Fact of such wider significance not germane to question of finality of determination of disputes within meaning of Art. 171(1)‑Caution with respect to interpretation of expression "without lawful authority"‑[Fazal Karim Khan v. Muhammad Akbar Khan (unreported) distinguished.]
‑Every decision in an election case is essentially an "ad hoc" decision‑Picking upon any such decision as laying down law "finally" is incurring risk of being "dangerously misled"
S. 38(2)(6) read with S. 53‑Any appreciable piece of writing on ballot paper is sufficient by itself to identify voter who cast it- Writing, by which voter can be identified‑Corrupt practice- Finding of corrupt practice only to be reached by an Election Tribunal‑Member, Election Commission, acting as appellate authority under S.53 exceeds his authority if such Member receives evidence relative to "pre‑arrangement" for identification of voter for purpose of establishing a corrupt practice.
Ss. 32(2)(6), 36(1)(b)(i), 38(2)(a) read with S. 53 Constitution of Pakistan (1962), Art. 98(2)(a)(ii) read with Art. 171(1) ‑ Determination, of Member Election Commission, as to inclusion in count, of ballot papers having "official mark" but not bearing "initials" of Presiding Officer- Held to be final and within Member's lawful authority‑Not susceptible of interference by High Court under Art. 98‑ Or" in expression "on official mark or initials" appearing in S. 36(1)(b)(i), whether "conjunctive" or "disjunctive".
Arts. 98(2)(a) (ii) & 171(1) read with National and Provincial Assemblies (Elections) Act (VII of 1964), S. 53 & S. 112‑Power of final determination (of election disputes) by authorities specified in Art. 171(1) prevails against general power of correction given to High Court under Art. 98.
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. The provision in section 112 of the Act of 1964, namely, that no Court shall' question the legality of any action taken by or under the authority of the Commission, is available to the full in relation to legal decisions, regarded as acts of a Member of the Commission exercising the authority of the Commission duly delegated to him under the appellate powers given by section 53 of the Act.
.:
Art. 98(2)(a)(ii) read with Art. 171(1) and National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 53 & 72‑Failure to exercise, or excess of jurisdiction, by Member of Election Commission under S. 53, or by Election Tribunal under S. 72, or mala fide decision, entitles aggrieved party to invoke Art. 98.
Art. 98(2)(a)(ii) read with Art. 171(1) and National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 53 & 72‑Election‑Courts would decline "ordinarily" to interfere with cases of election, yet it cannot be said. that writ jurisdiction cannot be "at all" attracted in such cases (e.g., in a case of mala fides)‑[Imtiaz Ahmad v. Ghulam Ali and others P L D 1963 S C 382 ref.].
the judgment of Kaikaus, J.:
Art. 98(2)(a)(i)(ii) Scope of paras. (i) and (ii)‑Expressions: "without lawful authority" and "of no legal effect" occurring in para. (ii)‑Error of law (apart from error relating to jurisdiction), whether attracts application of Art. 98‑Even errors committed in exercise of jurisdiction which admittedly exists are not within para. (ii)‑"Of no legal effect" means that relevant act is a "nullity"‑Power under Art. 98 compared to power under S. 115, Civil Procedure Code (V of 1908)‑Illegalities committed in determining dispute, seized of by a proper forum", does not render proceeding without jurisdiction‑Only acts without jurisdiction have "no legal effect"‑Order of judicial tribunal acting with jurisdiction has full legal effect till set aside by appeal, revision, etc.‑Examples Orders without jurisdiction‑Examples‑Such orders covered by para. (ii)‑Orders of administrative officers or authorities‑No distinction between "illegality" and "want of jurisdiction" Para. (ii) does not cover case even of "illegal exercise of jurisdiction"‑Not much difference between jurisdiction of High Court under Art. 98(2)(a) and jurisdiction exercised by an ordinary Civil Court‑Errors committed in exercise of jurisdiction cannot be corrected under para. (ii) but para. (i) may be of "great help in resolving this difficulty" because para. (i) does not contain expression "is of no legal effect"‑Para. (i) may be resorted to as long as judicial tribunal has not passed final orders‑Even after final orders, it may be possible to take the view namely, that Tribunal may be directed "to proceed in accordance with law from stage where illegality was committed"‑Court having jurisdiction to decide has jurisdiction to decide "rightly or wrongly"‑Acceptance of proposition that a wrong decision on question of law renders an act "without lawful authority" would convert High Court into a Court of Second Appeal‑[Fisher v. Secretary of State I L R 22 Mad. 270 ref.].
Art. 2 read with Art. 98 "Acts of State" and acts in accordance with law of the land‑Art. 2 relates to right of "citizens" to be dealt with in accordance with law‑Embodies an "important charter", which cannot be "under estimated"‑Determining authority as to what the "law" is, not "in every case" the Supreme Court‑Nothing in Constitution to prevent Legislature from entrusting "final" decision of any question of law to a tribunal created by such Legislature‑Distinction between position of Supreme Court as it was under Constitution of Pakistan (1956), Art. 160 and that under Constitution of Pakistan (1962), Art. 58(l) read with Art. 63‑President‑Law laid down by Supreme Court not "binding" on judicial or quasi judicial tribunals as distinguished from "Courts"‑Article 98. read with Art. 2 does not enable all questions to be taken before Supreme Court‑[Muhammad Ibrahim v. Government of Pakistan P L D 1960 Lah. 1073 ref.].
Art. 98‑Election disputes‑Argument that High Court can deal with final deter minations of election disputes arrived at by election authorities because High Court "has been correcting errors of law of judicial tribunals like Settlement and Rehabilitation Authorities, the Custodian and the Collector of Customs, based on "misappre hension"‑Displaced Persons (Compensation and Rehabilitation) Act (XXVIII of 1958), Schedule‑Pakistan Rehabilitation Act (XLII of 1956)‑Legislature has not entrusted to Settlement Authorities "function of construing the law with respect to transfers"‑ High Court, under Constitution of Pakistan (1962), Art. 98(2)(a)(i) can direct such authorities to transfer property where requisite facts are admitted by them to exist‑Such authorities‑ act as judicial tribunals so far as facts which are basis of entitlement of a person are concerned‑Similar is the position with respect to orders of Rehabilitation Authorities.
Art. 98‑High Court has no jurisdiction under Art. 98, to "correct all errors of law relating to merits of dispute before a tribunal" Failure on part of tribunal, however, "to properly apply its mind to a question of law" not beyond scope of Art. 98.
Art. 98 ‑Decision on merits of dispute which Tribunal has jurisdiction to decide -Erroneous decision of such dispute not "illegal exercise" of jurisdiction‑Rejection or acceptance of ballot papers at an election by the appellate authority appointed under S. 53, National and Provincial Assemblies (Elections) Act (VII of 1964), is a decision on merits of dispute within jurisdiction of such authority, and decision, though erroneous, is with "lawful authority" quite apart from bar created by S. 171(a) of National and Provincial Assemblies (Elections) Act (VII of 1964).
, Arts. 98 & 171(1) read with National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 53 & 112 ‑‑Dispute, whether ballot paper be accepted or rejected, is for Member, Election Commission, under S.53 to determine "finally"‑Decision of Member cannot be interfered with by High Court under Art. 98, on ground that it is erroneous, whether error be one of fact or law.
The effect of Article 171, Constitution of Pakistan (1962), is that all disputes arising out of elections which are held under the Constitution are to be finally determined by the Commission or Election Commissioner and an Election Tribunal. A law has to be enacted for this purpose, and the disputes are to be decided only in accordance with that law. The Article itself divides the disputes into two categories; that is (1) disputes relating to counting; (2) other disputes, and provides that disputes relating to counting are to be decided by the Commission or the Election Commissioner and other disputes by the Election Tribunal. The National and Provincial Assemblies (Elections) Act is the law which has been enacted by virtue of the power granted by Article 171. Section 53 of this Act provides for an appeal to the Election Commissioner against the order of the Returning Officer if there be a dispute as to counting. With respect to all other disputes there has to be an election petition before the Election Tribunal. According to section 112 of the Act the legality of anything done by the Election Commissioner is not liable to be challenged. The jurisdiction to hear appeals has been delegated to a Member of the Election Commission. Of course Article 171 does not destroy the jurisdiction of the High Court under Article 98. Article 171 provides for the decision 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. There is a duty cast on every judicial tribunal to apply its mind properly to all aspects of the dispute which it is called upon to decide and any lapse in this respect will attract the jurisdiction of the High Court under Article 98. , However, so far as the merits of the election disputes are concerned they are, in the words of Article 171, to be "finally determined" by the authorities mentioned therein and even if an error of law on the merits had been within the scope of Article 98, Article 171 would have been a bar to the High Court interfering on this ground. All questions of law which have to be decided for determination of the election disputes must be decided and finally decided only by the authorities mentioned in Article 171. The dispute in the present case was whether the ballot paper should be rejected or accepted and it was for the Member Election Commission to determine this dispute finally. In some contexts the word final' may only mean that it was not open to appeal, revision, etc., but when the Constitution says that a law should be enacted by which certain disputes are to be finally determined, what other intention can be imputed to the framer of the Constitution except that the determination under that law was not liable to be challenged. Article 171 in fact does not stop here and further provides that the disputes are to be decided only under that law. 'There is little room therefore for an interpretation that the decision of a dispute by the Election Commission can be interfered with on the ground that it is erroneous whether the error be one of law or fact.
Arts. 2, 98 & 171(1) read with National and Provincial Assemblies (Elections) Act (VII of 1964), S. 112‑[Bar against jurisdiction of Courts to question legality of action taken under Act (VII of 1964)]‑Section 112, .held to be ultra vires of Legislature with reference to Art. 171(1)‑High' Court, held, could, in spite of Art. 171, ensure that election disputes were decided according to law‑Article 2 debars Legislature from creating any authority whose acts are not to be judged bylaw.
Ss. 36(1)(b)(ii) & 38(2)(b)read with S. 53‑Mark on ballot paper by which "elector can be identified"‑,impossibility of identification of "particular" elector by marks by merely having a look at ballot paper‑Necessity of amending law- Sections 36 (1)(b)(ii) & 38(2)(b) "dead letters"‑Elector cannot be identified unless he passes on information about mark used by him to some one else‑Pre‑arrangement as to marks between elector and candidate‑Ballot papers (12) bearing inscription "Bismilla‑hir -rahmaan‑irrahim" and 12 ballot papers having one currency note of one rupee each, one ballot paper bearing a pice coin and another bearing half of a five‑rupee currency note‑Nevertheless none of the ballot papers were rejected by Member, Election Commission in appeal under S. 53‑Such Member could not exclude them "by taking further evidence"‑Bar against taking of further evidence as to pre‑arrangement not due to argument that "such arrangement would lead to an inference of corrupt practice".
Ss. 36 (1)(b)(ii) & 38(2)(b) read with S. 53‑"Any mark by which the elector can be identified"‑Only possible and reasonable interpretation of words is "that (although the elector may not be in fact identified) the mark is of a kind which if permitted can be used as an identifying device"‑Qualification, viz. "by which the elector can be identified" though "proper" is yet "unnecessary", "as all marks can be used for identification".
Ss. 36(1)(b)(ii) & 38(2)(b)‑"Bear a mark"‑Word "bear" to be given liberal construction to include case of an article "put in the fold of the ballot paper", though "bear", looked at by itself, would not include such an article.
98(2)(a)(ii) read with National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 38(2)(b) & 53‑Mark on ballot paper by which elector :can be identified"‑Ballot papers found attached with currency notes, with a coin, and others bearing inscription "Bismillah", etc. Included in count by Member, Election Commission, because there was no evidence of "pre‑arrangement‑" between elector and candi date‑Such interpretation of words "can be identified" not approved‑Yet High Court cannot interfere under Art. 98 Constitution entrusts "final" determination of election disputes to Election Commission or Election Tribunal and ' it is for them to interpret relevant provisions.
Ss. 2 & 53‑Election Commission not justified in refusing to go into question of "previous arrangement" (in respect of putting a mark on ballot paper so that elector may be identified) on the supposed ground that this involved an enquiry into some corrupt practice and that such enquiry was within jurisdiction of Election Tribunal‑Implication of Ss: 52 & 53‑Question with respect to "counting" must be decided by Member, Election Commission‑Election Commission and Election Tribunal not "subordinate", one of the other, or vice versa‑Each authority bound "finally to determine" the dispute‑Jurisdiction of the two authorities separate.‑Neither is affected on account of exercise of jurisdiction by the other‑Constitution of Pakistan (1962), Art. 171(1).
Ss. 53 & 73‑Jurisdiction of Member, Election Commission under S. 53 and that of Election Tribunal under S. 73 not mixed up‑Counting of votes "within exclusive jurisdiction" of Member‑Jurisdiction to "count" 'votes, if purported to be given by Act to Election Tribunal, would have been ultra vires
From the judgment of Muhammad Yaqub Ali, J.
Arts. 98(2)(a)(i)(ii) & 171(1)(2)(3)‑High Court's jurisdiction under Art. 98 is "subject to this Constitution", that is, "subject to bars" contained, among others, in Art. 171‑Such jurisdiction "compares unfavourably" with "unabridged" jurisdiction conferred by Art. 170, Constitution of Pakistan (1956)‑Decisions given under Art. 170 of Constitution of Pakistan (1956), to be "distinguished" on that ground‑High Court's jurisdiction under Art. 98, "limited" in ambit and "finality" attached by Art. 171(1) to determination of election authorities under National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 53, 57 & 71, read with S. 112, must be construed in that light‑British notions re "final" disposal of election disputes -Rule, that jurisdiction of superior Courts is taken away by "express" words and not "impliedly", not applicable in instant case- Kennedy v. Purcell T L R, Vol. IV, p. 664; Theberge v. Laudry (1875) 2 A C 102; Valin.v. Langlois (1879) 5 A C 115; Lord Strickland v. Grima (1930) A C 285; Edward Lionel Senanayake v. Hearth Mudiyanselage Navaratne L R 1954 A C 640; Reg v. Income‑tax Special Purposes Commissioner 21 Q B D 313 and de Silva v. Attorney‑General (1949) 50 Ceylon N L R 481 ref.].
Arts. 98(2)(a)(i)(ii) & 171(1) read with National and Provincial Assemblies (Elections) Act (VII of 1964), Ss. 53, 57, 71 & 112‑Election authorities designated in Art. 171(1) "final" judges of "facts", "law", and "interpretation" of law‑Such authorities' determinations not to be styled as being "without lawful authority" just because High Court, presuming to act under Art. 98 "does not agree with them" Held, in circumstances of case, that High Court, under Art. 98, had no jurisdiction to impugn order of Member, Election Commission, re "counting" of ballots, passed on appeal under S. 53 Act (VII of 1964)‑Held, further, that if such authority refuses to exercise jurisdiction or "acts in clear violation of mandatory provisions" of Act (VII of 1964), High Court may direct the doing of that which the law requires such authority to do or refrain from doing that which the law does not permit him to do "Lawful authority"‑Act, or proceeding is done or taken with "lawful authority" if authority is invested with "necessary capacity", and "conditions" for exercise of authority are substantially" complied with ‑ "Bias", "fraud", or "malice" destructive of "all" power under law.
Khurshid Ahmad Senior Advocate Supreme Court (Shaukat Ali Khawaja Advocate Supreme Court with him) instructed by Fazal Hussain Attorney for Chowdhury & Company Attorneys for
Nasim Hassan Shah Senior Advocate Supreme Court (Ihsanul Haq Advocate Supreme Court with him) instructed by Iftikharuddin Ahmad Attorney for Respondent No. 1.
Nemo for Respondent No. 2.
Manzur Qadir Senior Advocate Supreme Court (M. Ismail Bhatti and R. S. Qari Advocates Supreme Court with him) instructed by M. A. Rahman Attorney for Respondent No, 3,
Sharifuddin Pirzada Attorney‑General for Pakistan (S. A. Nusrat Advocate Supreme Court with him) instructed by Iftikharuddin Ahmad Attorney under Order XLV, Supreme Court Rules, 1956 for Respondent No. 3.
S. Nasiruddin Advocate‑General West Pakistan (Daud Ilyas Advocate Supreme Court with him) instructed by Ijaz Ali Attorney under Order XLV, Supreme Court Rules, 1956 for Respondent No. 3.
Dates of hearing: 21st, 22nd, 23rd, 24th, 25th, 28th, 29th and 30th June and 1st and 2nd July 1965.
.‑--This certified appeal by Mian‑ Jamal Shah against his successful opponent in an election to the National Assembly, Khan Nasrullah Khan, the other respondents being a Member of the Pakistan Election Commission, and the Returning Officer of the constituency in question, raises extremely important questions as to scope of the jurisdiction conferred upon the High Courts by Article 98 of the Constitution, in relation to the jurisdiction in respect of election disputes, for which provision is made by Article 171 of the Constitution, and the laws made in compliance therewith, namely, the National and Provincial Assemblies (Elections) Act, 1964, and the statutory Rules there -under which are of date in 1964. We have heard able and extensive arguments by Mr. Khurshid Ahmad, Senior Advocate, for the appellant and by Mr. Manzur Qadir, Senior Advocate, for the principal respondent and have received in addition valuable assistance from arguments presented by the learned Attorney -General appearing as amicus curiae and Dr. Nasim Hassan Shah, appearing for the Election Commission.
The facts are simple enough. There were other candidates besides Mian Jamal Shah and Khan Nasrullah Khan of whom only one person will require mention. The Presiding Officer at the close of the balloting drew up an account showing that Mian Jamal Shah had received 252 votes and Khan Nasrullah Khan had received 240 votes. The ballots were then placed before the Returning Officer for his scrutiny along with those which the Presiding Officer had excluded. The latter included 12 ballot papers in which one‑rupee currency notes had been enclosed, one ballot paper in which part of a five‑rupee currency note was enclosed, and one ballot paper in which a piece coin was enclosed. The Presiding Officer had excluded these votes on the ground that each bore a mark by which the elector could be identified. All these ballot papers had been marked for Mian Jamal Shah. The Presiding Officer had, however, included 12 other ballot papers cast for Mian Jamal Shah in which were enclosed chits bearing the description "Bismillah‑hir‑Rehma‑nir Rahim," as well as one ballot paper containing such a chit cast in favour of another candidate Mr. Rehmatullah Khan Durrani. These had been separated by the Presiding Officer, but had been included in the count. The Returning Officer also allowed them as valid and agreeing with the Presiding Officer, he rejected the ballot papers in which money had been enclosed. He excluded five other votes for Mian Jamal Shah, on ground which are relevant to this discussion, only in the case of two votes, not ton bearing the, Presiding Officer's initials. Thus, out of 252 votes cast for Mian Jamal Shah, the Returning Officer, after scrutiny, rejected 19, thus reducing his count of votes to 233. Khan Nasrullah Khan's valid votes were also reduced by three, which the Returning Officer rejected on grounds which are not relevant here, ringing his number down to 237, and this being the highest received by any candidate, Khan Nasrullah Khan was declared elected. Under section 53 of the National and Provincial Assemblies (Elections) Act, 1964, as originally enacted a candidate aggrieved by any proceeding before a Returning Officer at the count had a right of appeal to the Commissioner, which means the Chief Election Commissioner. By Ordinance IV of 1965, in section 53, the word "Commission" meaning the "Election Commission" was substituted for "Commissioner" and subsequently, the Commission delegated its powers in this behalf by an order under section 110 of the Act, to a Member, namely, in this case, Mr. Justice Sardar Muhammad Iqbal. Both Mian Jamal Shah and Khan Nasrullah Khan filed appeals against the result declared by the Returning Officer. Each appeal succeeded in part, that is to say, one additional vote was allowed to be valid in favour of Khan Nasrullah Khan bringing his count to 238 and 16 additional votes Were declared to be valid in favour of Mian Jamal Shah, so that his total ballots rose to 249 and he was accordingly declared to be elected to the seat. Fourteen of these additional votes were the ballots which contained money. The other two were votes which bore the official mark, but did not bear the initials of the Presiding Officer. These had been rejected by the Returning Officer, but were accepted by the Member on a construction of the relevant provisions in the law which will be considered ‑presently. In the proceedings before the Member, however, the question was also raised on behalf of Khan Nasrullah Khan that the 12 voting papers along with which chits bearing the words "Bismillah‑hir‑Rehma‑nir‑Rahim" had been cast should also have been rejected on the ground that by the addition of this foreign matter, each elector who cast such a vote could be identified. The Member, on a construction of the relevant provisions of the law came to the conclusion that, regarded as a mark, such foreign objects, i.e., money or the above‑mentioned chits, did not in the absence of proof of an arrangement between the candidate and the electors suffice to identify the voters. The question is examined in detail, with reference to the law as well as a number of earlier decisions given in cases of parallel nature not only in Pakistan, but also in England and the conclusion reached by the Member has been expressed in terms which admit of no doubt, viz.
"It is thus clear that unless there is something to show the previous arrangement, the mere presence of mark or for the matter of that the currency‑note on a ballot paper is not sufficient, to identify the electors."
The same observation in different words was used with respect to the chits enclosed with 12 other ballot papers. Additionally, ground was put forward for non‑rejection of these 26 ballot papers that none of them bore an endorsement as was required, in mandatory terms by section 38(2) of the Act. For this, the reason was that after separating the foreign objects, the Presiding Officer had mixed up the ballot papers which he had excluded as. well as those which ,he included in the count for Mian Jamal Shah, although in different lots. When it came to the scrutiny, it was not possible for the Returning Officer to connect any of the foreign objects with a particular ballot paper, and consequently, he was unable to specify, in respect of each ballot paper that had money with it, what that money was. He accordingly rejected by number, on the basis of the report made by the Presiding Officer. The Member found "no warrant for such an action under section 38 or under any other provision." On the view that the provision in. question was one which required literal and specific compliance, as a condition of its authority and of the validity of action thereunder, the Member recorded the view that in rejecting these 14 votes, the Returning' Officer had acted "without lawful authority." As to the two votes which bore only the official seal, the Member interpreted the relevant provision in the Act to mean that the Returning Officer "shall not reject (such a paper) if it contains either the seal or the initials." He accordingly included them in the count.
Against the order of the Member, a petition was moved by Khan Nasrullah Khan under Article 98 of the Constitution in the High Court where it was heard by a Full Bench of three Judges. The petition was accepted and the Full Bench, in a judgment delivered by Mr. Justice Mushtaq Hussain, held that the Member was wrong in three respects, viz., (a) in allowing as valid two ballot papers which bore the official seal only, but no initials of the Presiding Officer, (b) in allowing as ‑valid 12 ballot papers which contained the chits bearing the words "Bismillah hir‑Rehma‑nir‑Rahim," and (c) in allowing as valid 14 ballot papers which had money enclosed. The question of the validity of the ballot paper cast in favour of Mr. Rehmatullah Khan Durrani, which had a small chit enclosed in it, was not considered by the Full Bench. As a point of interest, it should be mentioned that these chits were described in the Annexure to the writ petition as being slips of papers "all alike" and they were all "written in the same handwriting and are similar in all respects, except that when examined carefully each one bears a number or mark, camouflaged in the writing."
The main burden of the argument presented for the appellant was that matters arising out of election disputes relating to the major Assemblies in Pakistan are excluded from judicial purview by their very nature, and effect has expressly been given to this by the wording of Article 171 of the Constitution, and the relevant laws thereunder. Such disputes whether they related to the scrutiny of votes or involve larger questions of corrupt or illegal practices, etc., are required by the Constitution to ,be "finally determined" by the authorities specified in Article 171 and by section 112 of the Act of 1964, the legality of anything done by any such authority is not to be called in question in any Court of law. The Attorney‑General fully supported this argument and aided us with a comprehensive statement of the development of the law on the subject in the United Kingdom, in pre‑partition India, and in Pakistan. On this basis, the argument was presented that everything done by the Member in the case was within the lawful authority conferred on him by the Constitution and the law, the matter being before him for final determination, both as to law and as to fact. The High Court under Article 98 was not empowered to interfere with his findings on the basis of error of law, that is to say, as conceived by the High Court. For the "final determination" of what the law is, in respect of "counting of votes" at an election was entrusted to the Member in compliance with the Constitution. The bar of jurisdiction contained in section 112 of the Act, that being an Act of the National Assembly, operated as against the power of the High Court. Consequently, the law declared by the Member in respect of two votes, in which the defect was absence of the Presiding Officer's initials, and in respect of 26 other ballot papers as to the effect of their containing foreign objects was not susceptible of reform or modification by the High Court. The Member had himself said that pre‑arrangement implied a corrupt practice, and as such the matter could be competently raised only before a Tribunal under the Act. It was not correct to say, as the High Court had said, that there was no other remedy available to the aggrieved party. In Pakistan, there was a brief interval, that is between the promulgation of the Constitution of 1956 and the making of two orders relating to the first elections to the new National and Provincial Assemblies set up by the President in the period of Martial Law, namely, President's Orders Nos. 4 and 13 of 1962 in which election disputes affecting the major Assemblies could have been brought before the Superior Courts. Under Article 160 of the 1956 Constitution, the Supreme Court was empowered to grant special leave to appeal from decisions of such Tribunals. Acting under that power the Supreme Court had in fact interfered to set aside the report of an Election Petition Tribunal in the case of Muhammad Saeed (P L D 1957 S C 91). Under section 81 of the Representation of the People Act, 1957, an appeal was allowed to the High Court from every proceeding of a Tribunal under section 74, but in fact no such appeal was ever brought. In the period prior to the imposition of the Martial Law in October 1958, there had been one occasion when a writ was issued to avoid an election, i.e., in the case of Dr. Khan Sahib (P L D 1957 Kar. 387). That case did not come to the Supreme Court, and the explanation given was that the effect of the judgment was avoided by a fresh election. It was pointed out that the correctness of that judgment was doubted by another Bench of the same High Court in the case of Ajun Khan (P L D 1958 Pesh. 191). There had been cases since the promulgation of the 1962 Constitution where powers of the High Court under Article 98 had been invoked in relation to election disputes affecting the major assemblies. One such case was that of Badrul Haque, which was finally decided by the Supreme Court in 1963, the judgment being reported as Badrul Haque, Khan v. The Election Tribunal, Dacca (P L D 1963 S C 704), where it was held, reversing the judgment of the High Court that the impugned .‑ actions of the Election Tribunal were not "without lawful authority." In that case, however, the larger question had not been raised, whether election disputes were, on a proper construction of the relevant provisions in the Constitution, and the consequent law, placed beyond the purview of the High Court under Article 98. Since then, there had been a number of decisions by both High Courts, viz., the case of Shamsul Hasnain Haider v. Ghulam Ali Talpur (P L D 1963 Kar. 588) of Abdul Hai Azad v. Chief Election Commissioner (P L D 1964 Dacca 460) and a very recent case, decided in March 1965, that of Mian Qamaruddin v. The Chief Election Commissioner, in Writ Petition No. 1861 of 1964 by the West Pakistan High Court. These cases were, it is said, probably, under appeal before the Supreme Court; and the fact that the writ jurisdiction of the High Court was invoked in these cases could not be regarded as establishing the competency of that jurisdiction. Mr. Khurshid Ahmad and Dr. Nasim Hassan Shah were also at pains to support the correctness of the view taken by the Member on the points of law, which he had decided in a certain way and applied accordingly. These views have been reversed by the Full Bench.
Mr. Manzur Qadir's contention was that election matters are not foreign to the jurisdiction of the High Court. He referred to the fact that in the United Kingdom, Parliamentary election disputes are heard and decided by a Bench of two Judges of the High Court, from whose decision, by Special leave, an appeal lies on points of law to the Court of Appeal. Mr. Manzur Qadir further relied on the fact that in India, an appeal is allowed by law from a decision of an Election Tribunal to the High Court., (It has been mentioned. earlier that a similar appeal was allowed by the Pakistan Representation of the People Act, 1957. That provision was revoked and was later replaced by a provision for reference to the High Court on a point of law of President's Order No. 13 of 1962. This later provision was itself revoked, very soon after, by President's Order No. 35 of 1962). Mr. Manzur Qadir also referred to a number of cases in the High Courts under Article 98 of the Constitution of 1962, and the case of Badrul Haque before the Supreme Court, where the writ jurisdiction had been invoked, but he had to agree that the general argument of the exclusive nature of the jurisdiction given by the Constitution and the laws thereunder in respect of election disputes was never raised in those cases as it had been raised before us. He relied on the English case of Northumberland Compensation Appeal Tribunal ((1952) 1 All E R 122), for the proposition that an error of law appearing on the face‑ of the record attracts the jurisdiction of the King's Bench Division in England, in certiorari, and contended that there were such errors of law in the present case which were equally liable to be corrected by the High Court, in its jurisdiction derived from Article 98. With special reference to the cases where foreign objects had been enclosed in ballot papers, Mr. Manzur Qadir's contention was that in the circumstances of the case, no doubt should be entertained that these foreign objects were inserted as a means of identifying, to persons interested and in a manner contrary to the requirement of secrecy in an election, that certain persons had voted in a particular way. In the course of the argument, a case was found in the American Jurisprudence, Volume 18, (Elections), specified in the foot‑note to paragraph 198, namely, the case of Phelan v. Walsh (17 L R A 364), in which printed political circulars were found attached to a set of ballots, and on a number of other ballots, posters or stickers were found in the same handwriting. The Election Tribunal in that case had found in these circumstances "so strong a presumption of design, as to be regarded as a design to identify the voters." In Mr. Manzur Qadir's submission, the considerable number of ballot papers in which the same type of currency was found, and similar chits were found, should be regarded as a sufficient circumstance for coming to the same conclusion in the present case. The thing was clear in itself, res ipsa opuitur and therefore in a scrutiny, there should have been no hesitation in holding that these ballots should be excluded. The Full Bench was therefore right in its view, that in this respect that decision of the Member could not be sustained in law. He contended that if there was any doubt on the point, it was open to the Returning Officer to receive evidence to satisfy himself whether or not there was a design behind the adoption of these practices. Mr. Manzur Qadir placed great reliance upon the judgment in an election case in England delivered by Channell, J. This was the Borough of Exeter case of 1911 (6 Om & H 228), where Channell, J., had held that the writing on a ballot paper of the words "Up; Duke," Duke being the person for whom the ballot was being cast, was sufficient to identify the voter and consequently to invalidate the ballot paper. He contended that in the circumstances of the case the rejection of ballot papers in which foreign objects had been enclosed, but on which no endorsement had been made .by the Returning Officer, could be competently carried out by exclusion of that number of votes from the count of the particular candidate for whom they were cast on the basis of the report of the Presiding Officer. The technical requirement could not have been satisfied in the circumstances, but the flaw was established as well as the number of ballot papers affected thereby. The view of the Member on this point had, in his submission, been rightly reversed by the Full Bench. It was not necessary for the application of the rule that a ballot paper should be rejected if it bears a mark by which the elector can be identified that the particular elector should identify himself by such mark, but in the overriding and imperative necessity to maintain the secrecy of the ballot, if there were sufficient circumstances enabling identification by groups, effect should be given to the rule in such a case as well.
It will be convenient, and at the same time a just recognition of the careful analysis of questions arising in the case, and the intensive consideration given as well as the sustained argument applied towards the formation of conclusions on each question, in the judgment of the Full Bench, that for the purposes of the appeal, the examination of the questions arising in the case should be in the sequence adopted by the Full Bench.
A necessary condition for the exercise of the jurisdiction by the High Court under Article 98 of the Constitution is that there should be no other adequate remedy. That condition being satisfied, the High Court has been given certain powers to make orders, which may be analysed as under,‑ to the extent that they are relevant in this appeal:‑
(i) an order directing a person performing in the Provinces functions in connection with the affairs on the Centre-to refrain from doing that which he is not permitted by law to do;
(ii) an order directing such person to do that which he is required by law to do; or
(iii) an order declaring that any act done or proceeding taken by such person has been done or taken without lawful authority and is of no legal effect.
It was argued before the High Court that in the face of the provisions of Article 171 of the Constitution, the High Court had' no power to interfere with decisions given by Tribunals in their exclusive jurisdiction in the, matters of election disputes. 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." To appreciate the provisions of section 53, it is necessary to refer to section 38 of the Act laying down the duty of the Returning Officer, before .whom the ballot box with the votes cast and duly classified by the Presiding Officer under section 36, is to be placed. The Returning Officer after the count of ballot papers sent to him by . a correct, is firstly to examine those has excluded and if he finds any he is to include them in the count which suffer from the following defects, viz., that he bear
(a) no official mark or initial of the Presiding Officer;
(b) any mark by which the elector can be identified;
(c) no prescribed mark indicating for whom the elector has voted; or
(d) any mark from which it is not clear for whom the elector has voted.
That the decision of the Returning Officer on the point of rejection is not final is shown by the provision in this section that if a candidate or an election agent objects to the rejection of any paper, the Returning Officer, shall add to his endorsement on such rejected ballot paper, the words "rejection objected to. This has reference to the appeal provided by section 53 against the Returning Officer's orders. By section 53, a contesting candidate who is aggrieved by any order made under section 38 relating to the count may prefer an appeal; and as has been Seen above, by certain amendments and orders made, the appeal lies now, not to the Chief Election Commissioner, but to a Member. The power of the Member in relation to appeals is expressed in the following entirely general terms, viz., that after giving an opportunity to the concerned parties of being heard, he may either dismiss the appeal, or if he does not dismiss the appeal, he may "determine the result of the election on the count of valid votes as corrected and make such consequential order as may be necessary." At this point it 1s useful to refer to the requirement of Article 171 that a law made under that Article is to provide for such matters to be "finally determined" by the appropriate authority, in this case the member, and the power given by section 53 must necessarily be construed accordingly. All other election disputes, not being disputes which could be raised in an appeal under section 53 are to be made matter of an election petition under section 57, and a reference to section 59 shows that the allegations upon which a petition may be founded have been carefully specified. Section 59 provides that every election petition shall contain "full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed" besides giving a precise statement of the material facts on which the petitioner relies and specifying the relief that he claims. Corrupt and illegal practices and illegal acts are specified in Chapter VII and include the well‑known offences of bribery, personation, undue influence, and false statement in addition to a considerable number of other acts which are specified in sections 80 and 81. Definitions of bribery, personation and undue influence are contained in sections 82, 83 and 84. Illegal acts are defined in a number of the succeeding sections. The question here concerned being that of a design by which voters should exhibit to interested parties, for whom they have voted, by enclosing foreign objects in their ballot papers, the following provisions contained in Chapter VII may be thought to be attracted. The first is the provision in section 84, sub section (3)(a) which makes it undue influence if a person "by abduction, duress or any fraudulent device or contrivance impedes or prevents the free exercise of the franchise by an elector." There may also be interference with the secrecy of voting as defined in section 88 in clause (2), viz., where a person in any manner acts or attempts to obtain in a polling station information as to the candidate for whom an elector in that station has voted. This being the relevant law, the Full Bench dealt with the plea of exclusive jurisdiction and of the existence of other adequate remedy, (i.e., by means of an election petition) in the following way. Taking the latter objection first, the judgment after construing sections 52 and 53 in relation to the jurisdiction of the Member and the Election Tribunal respectively, reached the conclusion that the
"spheres of action of these two bodies are, therefore, contained in two water‑tight compartments and the field occupied by the authority of one is forbidden ground for the other."
It goes on to point out that in the case before the Court, no allegation had been made in respect of the inclusion of foreign objects that it "was made in furtherance of a previous arrangement between the electors making them, and either the candidate‑or his agent,‑whereby any bribe was offered. to the electors for so doing." All that was said was
"that for some reason or the other the electors concerned have cast their ballots in such a manner as to reveal their identity, not to the whole world, but to the candidate or anybody else whom they wanted to know that they have cast their votes for the respondent."
The learned Judges posed before themselves the question whether if by arrangement, the voter should place half of a five‑rupee note inside his ballot paper, the other half having already been given to the candidate, so that he may verify that the vote in question was cast in his favour, could the defeated candidate raise this question in an election petition, and they answered this question in the negative on the view that "no corrupt practice, undue influence, bribery or illegal practice, as defined in the Act, are involved." They went on to say that nothing more than this was alleged. When the provisions of section 84(3)(a) referred to above were brought to their notice, the learned Judges said that
"it is not for us to travel in the realm of conjecture and speculate about the reasons that could have impelled the elector who cast the objectionable ballot papers and to have marked them in the manner that they did,"
and again stressed the absence of any allegation that there had been impedance of the free exercise of the right to vote. An attempt was made to bring the matter within the offence of bribery and to this also the same answer was given, namely, that there was no allegation to that effect.
With respect to the learned Judges, the division of jurisdiction' between the Member under section 53 and the Election Tribunal, is not, in respect of the count, intended to be so completely water‑tight as they have declared it to be. "Reference to section 731 of the Act will show that counting of votes, that is exclusion off invalid votes and inclusion of valid votes which have been wrongly excluded, is not outside the purview of the Tribunal. Section 73 provides that when after the conclusion of the trial "it appears that there is an equality of votes between two or more contesting, candidates," the Tribunal is to inform the Commissioner accordingly, who shall thereupon direct that a fresh poll shall be taken. This clearly implies that an inequality of votes has been reduced to an equality by inclusion of votes which should not have been rejected, and/or exclusion of votes which should not have been included, as a result of the Tribunal finding certain corrupt or illegal practices or illegal acts to have been committed. In the present case, the question raised was as to whether ballot papers which included foreign objects should be excluded from the count under section 38, subject to appeal under section 53, n for that reason alone. The Member was of the view that that reason was not sufficient, for it was necessary to produce evidence of a design behind the inclusion of such foreign 6bjects, before they could be excluded. This clearly implied the requirement of proof of a corrupt practice or of an illegal act as indicated above. It was the view of the Member that he had no jurisdiction to enquire into these matters and further he has used expressions indicating that it was proper that such matters should be taken before an Election Tribunal under section 57. If it were found that the ballot papers in question were tainted by corrupt practice or an illegal act, it would be for the Tribunal to exclude them for the purpose of their final decision. Thus, the power given to the Tribunal by section 73 of the Act would be attracted. Consequently, I am unable, speaking with respect, to support the conclusion of the Full Bench that the count of votes must be finalised under section 53, qua the jurisdiction of the Election Tribunal under the later provisions of the Act."
The repeated assertion by the Full Bench that no allegation of corrupt or illegal practice had been made fails to take into account that in a proceeding under section 38 or a consequent proceeding under section 53, no such question could be raised for adjudication. The emphasis in the judgment is on the exclusion of matters relating to counting from the purview of an Election Tribunal. An equal emphasis may usefully have been laid upon the fact that, upon it appearing to an authority under section 38 or section 53 that a matter raised before him carries necessarily the implication of a corrupt or illegal practice having been performed, it is the duty of such authority to refrain from entering into that question and to leave the matter in such a state that the question can properly be raised before the competent Tribunal. Here, the Full Bench ‑ may well have referred to section 59 of the Act of 1964 already referred to, and the specific provisions as to what may be made ground of attack on a returned candidate. If, on a mere inference without proof, the Returning Officer, in the first instance, or a Member acting in appeal, were to conclude that certain ballot papers were tainted by a corrupt practice, and the exclusion of such ballot papers were to produce the effect that the candidate in whose favour they were cast should lose the seat, such candidate could not raise the matter again before an Election Tribunal, in an attack on his successful rival, and the latter, although he could file a recriminatory petition under section 70, might not choose to raise the question of these votes, which have been presumed to be tainted by corruption, e.g., he might not have anything in his possession to indicate that the taint attaches directly to his unsuccessful rival or to his agent. The effect of this would be that by a mere speculative finding on a matter outside his jurisdiction, the Returning Officer or the Member would have determined the result of the election while placing the question of whether in fact, the taint of corrupt or illegal practice applied to the votes in question entirely and finally outside the scope of the machinery provided for the resolution thereof. The necessary allegations could not be expected to be raised in a proceeding under section 38 or under section 53 in appeal; in a case like the present they arise out, of what the Full Bench has described as a simple allegation that "for some reason or the other" the electors in question have cast their votes so as to reveal their identity not to the whole world, but to the candidate or some other person whom they wish to inform as to how they had cast their votes. The example which the learned Judges have chosen to give is one which, with due respect to the contrary opinion which they have expressed very definitely, clearly implies a corrupt practice on the part of the candidate who keeps one half of a currency note and gives the other half to a voter to enclose in his ballot paper. There is implicit in these assumed facts, a clear violation of the secrecy of the ballot and a clear device to prevent the voter from freely exercising his vote, and on these facts, allegations could be founded of a corrupt and illegal practice, such as an Election Tribunal and only an Election Tribunal would be competent to try. That is precisely what the Member acted to bring about, and there can be little doubt that in doing so he was acting in compliance with his duty, as a Member of the Election Commission, under section 109 of the Act of "ensuring that an election is conducted honestly, justly and fairly" in accordance with law. A corrupt or illegal practice in an election is not an isolated affair as between the practitioners. It is wrong to suppose that the effects of such practice are confined to the practitioners. It is a matter of vital public interest relating to the purity of elections that such practices should be brought to light and duly investigated. They do not merely carry the penalty of disenfranchisement for the voter, or the loss of the vote to the person in whose favour it is cast. There is a penalty also by way of disqualification for the franchise of persons found guilty of such corrupt or illegal practices for a maximum period of four years under section 104_ apart from which there are criminal penalties provided by section 80 and the various sections in Chapter VII of the Act. For a Returning Officer or a Member to find, in the way of inference or presumption, that votes are tainted with a corrupt practice and on that basis to exclude them involves
a pre judgment of a serious nature of matter wholly beyond their jurisdiction. Such a finding would, except perhaps in a very exceptional case, result in suppression of matter vitally affecting the purity of elections, which in the public interest should be fully investigated.
Before coming to a definite conclusion that no election petition was competent, the judgment of the High Court examines‑ an argument raised that the Presiding Officer had committed some illegal acts, namely, that he had separated the foreign objects from the ballot papers in which they were enclosed and had not placed them in a separate bag as required by section 36 and consequently there had been failure of statutory duty. To this the reply was given that it could not be said that, in consequence of this default, the result could materially have C been affected. The inclusion of votes was done by the Member on the basis of‑ the Presiding Officer's report, and the Member was not right to say that he had no power to reject any particular ballot papers only because there was no means of knowing in which of them the foreign objects had been enclosed. On this point, the inclination must be in favour of the view taken by the Full Bench. In the circumstances of the case, default on the part of the Presiding Officer, who may not have appreciated that his action, which was reasonable on the face of it violated a technical requirement of the law, could not have the effecst that the inclusion of the foreign objects in an accurately known number of the ballot papers would be ignored altogether. The second ground for reaching the same conclusion advanced by the Full Bench is that the Tribunal, if it finds that such an illegal act has been committed, must declare the whole election to be void, and this was not desired by either of the parties.
Having held that no election petition was competent, the Full Bench then proceeded to examine whether the Member had lawful authority to determine the question before him which was whether the foreign objects enclosed in the ballot papers in question had such an effect as to enable identification of the electors by whom they were cast. They came to the conclusion that the Member's authority covered the whole question of determining which votes were valid and which were not, and after citing a short passage from the Member's order, they recorded the following conclusion that the Member
"by declining to go into the question himself refused to exercise an authority vested by law in him alone, and, there fore, acted without lawful authority."
Here, speaking again with respect, it seems to me that the learned Judges of the Full Bench have fallen into error. The passage which they have cited is one in which the Member after saying that, in consequence of his order accepting Mian Jamal Shah's appeal, "the respondent cannot be debarred from his remedy which may otherwise be available to him before the Election Tribunal," went on, somewhat gratuitously it may be thought, to outline what points Khan Nasrullah Khan could raise before the Election Tribunal, one being that the Presiding Officer should not have separated the foreign objects from the ballot papers in which they were enclosed, and should have rejected them, and the other that "there was an arrangement between the candidate and the elector by which the elector can be identified." Observing that these questions were beyond the scope of section 53, the Member held that the election petition was not incompetent. But to say that the Member declined to determine the question whether the foreign objects constituted marks by which the electors could lie identified, ‑is clearly not correct. In fact, the question is discussed in three lengthy paragraphs Nos. 15, 16 and 17 in the Member's order, covering some 8 sheets of foolscap A previous decision by an Election Commissioner in the case of Fazal Karim v. Muhammad Akbar Khan, is mentioned where a currency note had been found in a ballot paper which had been rejected on that account, as well as a decision of the High, Court of West Pakistan in the case of Muhammad Musa (P L D 1961 B J 47), relating to a mark by writing of words. Reference was made to a decision in a Writ Petition arising out of a Union Council Election, where a currency note was found attached to one of the ballot papers and it was held that the secrecy of the ballot had not been violated. A lengthy passage from the judgment in the well known election case of Woodward v. Sarsons (1875 L R 10 C P 733) is quoted, and as a result of this discussion, the Member recorded the following conclusion, viz.:
"unless there is something to show the previous arrangement, the mere presence of mark or for the matter of that the currency‑note on a ballot paper is not sufficient to identify the electors,"
and with reference to the chits found in 13 of the ballot papers, which are discussed in paragraph 17, the Member recorded his view that
"the existence of a mark in the absence of a proof of arrangement does not identify a voter."
It is clear beyond doubt that the Member had in fact recorded a clear finding on the question whether simply by inclusion. of the foreign objects in the ballot papers in question, the conclusion could be drawn that the electors who cast them could be identified. He left no doubt, by the words he used, that his finding was that the mere presence of these foreign objects was not sufficient to find such conclusion, and that evidence of pre‑arrangement was necessary. To characterise the decision of the Member as being "without lawful authority," because he declined to examine this question is to find a fault for a reason which does not exist.
The learned Judges then proceeded to consider whether their power under Article 98 was taken away by the provisions of Article 171 in relation to election disputes. They prefaced this discussion by recording their conclusion that there was "no other remedy, much less any adequate remedy available to the petitioner" and it will have been made clear by what I have said already that in so doing, they have ignored the fact that, on the Member's interpretation of the relevant law, a person who challenged _ the validity of the votes in question, still had a further remedy by petition, when an Election Tribunal would be competent exhaustively to examine the whole question, on the basis of evidence. I conceive that one of the questions which would arise in such a petition would be, assuming absence of other evidence to show pre‑arrangement, whether the available evidence, namely, the foreign objects actually found, their simi larity, and their number provided sufficient basis for a conclusion such as that reached in the American case of "Phelan v. Walsh" (cited above) viz., that put together, they raised "so strong a presumption of design, as to be regarded as a design to identify the voters." For it must be remembered that the Tribunal there was not one of limited jurisdiction, as is the Member here, who cannot find, even tentatively, that a corrupt practice has been committed, for the purpose of excluding a ballot.
After a brief reference to Article 164 requiring that elections prescribed by the Constitution should be conducted in accordance with law "subject to this Constitution" the learned Judges drew from the latter condition, the conclusion that the power of the High Court under Article 98 was applicable in this matter. . They proceeded to set out the relevant provisions in Article 171 and repeating the "time honoured principle of law that the jurisdiction of Superior Courts is not taken away except by express words" they laid stress on the fact that under subsections (2) and (3) of Article 171, interference by the Courts in certain matters was excluded by direct injunction in unmistakable terms, whereas in their opinion this was not the case with reference to clause (1) of Article 171 providing for election disputes "to be finally determined." Subsection (2) of Article 171 prohibits the questioning of the validity of the election of a person as President before any Court or authority whatsoever. Subsection (3) of the same Article prohibits all Courts and authorities against enquiring into the validity of orders of the Chief Election Commissioner delimiting constituencies for the purposes of (1) Provincial elections, (2) elections to the National Assembly, and (3) elections to the seats provided for women. Reference was also made to Articles 116 and 117 giving protection to the President and the Governors personally in respect of legal proceedings during their period of office, and a measure of protection in respect of other acts done in execution of their office. On this foundation the conclusion was drawn that wherever the jurisdiction of Courts was to be ousted, the Constitution has done so in "clear and fourth right language," and the consequential finding was recorded that "determination of disputes covered by Article 171(1) is not exempt from judicial review."
References to Articles 116 and 117 do not in my opinion, speaking with respect, provide any assistance for the interpretation of Article 171(1). Article 116 prohibits criminal proceedings against the President or the Governors personally while they ate in office. It also requires as a preliminary condition of the institution of civil proceedings against a President or a Governor for something done in his personal capacity that notice of such proceeding should have been given to him at least 60 days earlier. Were the condition is satisfied the President or a Governor becomes subject to process. With this exception, these dignitaries are declared by this Article to be exempt from all processes whatsoever. Article 117 gives immunity from proceeding in any Court to the President, the Governors and the Ministers in respect of acts done in the performance of their office "except in respect of anything done or not done in contravention of the law." Neither of these Articles is sufficiently wide in scope to furnish ground for an inference regarding the intention of the Constitution with respect to election disputes, as against the general supervisory power conferred upon the High Court by Article 98. The question is clearly not one of the existing jurisdiction of the Superior Courts being taken away: Article 98 is a wholly new provision and confers a new jurisdiction. To regard it as a continuation 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 habeas corpus, mandamus, prohibition, quo warranto and certiorari, is in my view an error. The Constitution 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 E 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 196 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 expressions 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," 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,
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 that no dispute arising out of an election shall be decided otherwise than under the law specially made for the purpose in accordance with the subsection, nor shall the validity of such an 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 or Tribunals constituted thereunder. In the latter case, a High Court acting under Article .98 could indeed invoke its superior authority to impose upon such statutory Tribunal, despite the finality given to its determination, the requirement that its actions should be within its jurisdiction, that they could not be in defeat of that jurisdiction and that such action should be shown to have been performed with lawful authority. In the absence of a valid provision barring such interference, the High Court acting under Article 98 would, I conceive, have the authority to interpret the relevant statutes, in respect of the limitations upon jurisdiction, the obligations to exercise the jurisdiction, and the scope of the authority conferred by such statute.
It may be of advantage at this point if I were to refer to the question of interference on the ground of "error of law," a question which in recent years has given rise to some difference of opinion in the English Courts, in the application of the power of certiorari. A very exhaustive judgment on the question is that delivered in the Privy Council by Lord Summer, in the case of Nat Bell Liquors Ltd. (1), with which Lord Tucker expressed his agreement in the recent case of Baldwin and Francis Ltd. v. Patent Appeal Tribunal (2), and at the same time expressed his doubts as to the correctness of certain views expressed on the question in the case of Northumberland Compensation Appeal Tribunal (3). In the latter case, Denning, L. J., bad observed that certiorari provides a supervisory ‑control that extends not only to see that the inferior Tribunals keep within their jurisdiction, but also to see that they observe the law. In a judgment which has been cited by the Full Bench, in the case of Patents Appeal Tribunals (4), Lord Goddard, L. C. J., expressed the opinion that it is clear that "certiorari will lie to the Tribunal if the Tribunal exceeds its jurisdiction, and equally if the Tribunal gives a decision which the Court conceives to be bad on the face of the decision." Following upon a lengthy period in English legal history during which, partly in consequence of what are known as Jervis's Acts, the Courts had confined their interference in certiorari to grounds relating to disqualification and other such matters going to the jurisdiction, these statements would appear to have the effect of enlarging the power of the King's Bench Division in certiorari to cover almost any decision on any point, by a Court of inferior jurisdiction, with which the Judges should find themselves in disagreement. In effect, the power becomes indistinguishable from that exercisable in a full‑fledged appeal. But in the case of Nat Bell Liquors (cited above) it was held by the Judicial Committee that even a case where a justice convicts without evidence, would not justify interference in certiorari, on the ground that to convict without evidence is to do something which the justice ought not to do. They observed that the Justice was "yet doing it as a judge" and "if jurisdiction to entertain the charge has not been impeached, his subsequent error however grave is a wrong exercise of jurisdiction which he has and not usurpation of jurisdiction which he has not." In the case of the Northumberland Compensation Appeal Tribunal (cited above) an error of law was admitted by the parties to have been committed. The error was that in awarding compensation to a clerk for loss of employment, account was not taken of a part of his service, which under the regulation should have been allowed to him. And in the case of Baldwin and Francis Ltd. v. Patents Appeal Tribunal (cited above) the error which Lord Denning in his separate judgment found was one which the other four noble Lords were unable to see, namely, that the Tribunal had totally overlooked a "vital consideration" in coming to his conclusion, which he had based on considerations extraneous to the case. Lord Denning found an undoubted error in this, but declined to grant certiorari for two collateral reasons, namely, that to do so would be of no advantage, since whether it was granted or otherwise, the person seeking it would still have to bring an action to gain the relief he wanted and secondly, that this person might have asked the Tribunal to reconsider his order and if that had been done promptly, it would have been competent for the Tribunal to do so. The other four noble Lords were of the view that the Tribunal must be deemed to have applied his mind to all the incidents applying to the question before him and the mere fact of non‑mention of one of those incidents in his judgment was not sufficient for holding that he had committed any error of law. I mention these cases in order to emphasise that these are no longer relevant for .the application of Article 98, which is worded in clear terms, and must be applied according to its terms. Some discussion of this question will be found in the judgments delivered in this case in the case of Badrul Haque Khan (cited above). The decision of an Election Tribunal had been set aside by the High Court exercising jurisdiction under Article 98, one of the grounds being that the Tribunal had acted without lawful authority, in that inadmissible evidence had been let in, and the initial onus of proof of a particular issue had been wrongly laid. From the judgment of the majority, the following passage may be quoted with advantage.
"At this point, it is in our view desirable that we should state that in order to constitute an act of a judicial or of quasi- judicial authority an act performed without lawful authority' it must first be borne in mind what is the nature of the authority vested in such body. As to the admission of evidence the rules are well‑known, but it will be going too far to say that every little breach of a rule by allowing evidence to come in, which in strict law might be thought inadmissible, would constitute an act, without lawful authority' ".
The majority judgment found that no inadmissible evidence was allowed and as to the point of onus, it was said that the error, if any, had been "fully corrected" by "the full and careful examination of the evidence," and to hold the Tribunal's judgment on this ground "to be without jurisdiction or lacking in lawful authority" was "to exaggerate the effect of a small error which is one of expression rather than of substance." In his separate judgment, Kaikaus, J., expressed himself as being "prepared to concede that the admission of inadmissible evidence would be an act which is without lawful authority" and also conceded the possibility that "improper allocation of onus may affect the ultimate decision in the case so as to render it without lawful authority." There are however certain observations which fall immediately after, which are of direct application to the present case. The order of the Election Tribunal in that case had been characterised by the High Court as being without lawful authority on the ground that it misinterpreted the relevant provisions of the Act on which was founded the contention of "clear error of law" such as would make the decision "without lawful authority." The argument was rejected by Kaikaus, J., in the following words.
"The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter‑on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law."
The power of the High Court under Article 98 is to be exercised subject to the Constitution, that is to say, in the relevant respect, subject to the terms of Article 171 relative to the determination of election disputes. It has been seen that the requirement of the Constitution is that such disputes should be decided under the law, viz., here the National and Provincial Assemblies (Elections) Act, 1964, which law should provide for these disputes to go before a specified authority or before an Election Tribunal, according to their nature ‑and that they should be "finally determined" by such authority or Tribunal. To ascertain the full scope and meaning of such a provision, contained in the Constitution itself, it is not in my opinion sufficient to refer to one or two variant forms of expression contained elsewhere in the Constitution. Subsections (2) and (3) of Article 171 prohibit absolutely the raising of disputes as to the validity of the election of a President, or as to the delimitation of constituencies by the Chief Election Commissioner, and thus exclude all necessity for determination thereof. By contrast, subsection (1) provides for determination of election disputes and must be given its full effect, according to its terms. To appreciate whether the jurisdiction of Courts was altogether excluded, it is necessary to make 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.
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 relating to the conduct of elections and in particular to balloting, ie 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. The judgment under appeal is probably the first judgment in which a High Court has purported to declare with respect to a ballot paper whether or not it should have been rejected on a true construction of the law relating thereto. Nowhere in the whole range of the reports is any case to be found either deciding or laying down principles for decision as to what types of action should or should not be considered to be the corrupt practice of bribery, or of undue influence, or of personation, or of false statement; these being the main corrupt practices, or even as to illegalities and irregularities of a more technical nature. The incidents of bribery; that is to say the elements of the offence, the variety of circumstances in which it can be held to have been practised, and the estimation of intentions are matters very well within the cognizance of the High Courts through the exercise of their criminal and g6neral jurisdiction. Undue influence in a general sense is a topic arising out of human transactions in infinite variety for the consideration of the High Court in its various jurisdictions. personation again is a defined offence in the Criminal Procedure Code and with its incidents the High Courts may be deemed to be as familiar as it is with false statement' in a general sense. As to the ascertainment of illegality in respect of actions and practices, there can be no question but that by the wide experience gained through the exercise of its ordinary jurisdiction, the High Court is very well equipped to judge. Yet the position is undoubted that with respect to all these matters, there is not a single case to be found where the law has been laid down and a finding has been recorded by the High Court in a case of an election dispute, where the subject‑matter was as to whether or not the election of the returned candidate was valid or that a disqualification or penalty provided exclusively by the election law had been incorrectly applied. The solitary exception is the case of Muhammad Saeed, where the Supreme Court did review the evidence received by an Election Tribunal, in the exercise of power derived from Article 160 of the short‑lived Constitution of 1956, an in consequence reversed the decision of the Election Tribunal, on a point relating to the exercise inter alia of undue influence. It has been indicated already how that brief interlude came to an end in 1962 (still during the Martial Law period), when with respect to elections to the National and Provincial Assemblies, the intervention of the High Court as a deciding authority on law or fact was wholly excluded. That condition was given constitutional validity by Article 171 of the Constitution of 1962, and it is important to consider by what intention and motive, the rule of final determination now enshrined in the Constitution can be supported.
The Attorney‑General was good enough to provide the Court with a synopsis of the history of the resolution of Parliamentary election disputes in England. At first, in the period before the 17th century, it was the King who settled such disputes without question, until under Richard II, there was a protest. In 1625, when King James I took similar action which G gave rise to protests, the House of Commons took over the matter within its own responsibility, after obtaining opinion from the Judges. At first, such matters were decided by the whale House, which led to the natural complaint that the minority party could not get justice, so that the composition of the House was a matter within the jurisdiction of the majority party. In 1770, it was decided by the House that such matters should be referred to Committees of the House for adjudication, but this again proved unsatisfactory, since the composition of the Committees was still within the power of the majority party. In 1868, a move was made for reference of election disputes to Special Tribunals and the Select Committee suggested that instead such cases might be referred to the Queen's Bench Division, whereupon the Judges protested, expressing their "insuperable repugnance" to being charged with this responsibility, on the ground that their conclusions would become subject of public debate. They also pleaded over‑work and the right not to have such duties imposed upon them, in protesting against what was described as an "objectionable measure". In 1879, a rota system was devised, i.e., a panel of Judges of the Queen's Bench Division was formed tend it was provided that each election dispute should be referred to two Judges taken from this panel, This system is now operated under the Representation of the People Act of 1949 which requires the Judges to follow the principles and procedure of the earlier Parliamentary Committees, that is to say the election law as laid down by these Committees from the year 1770 onwards, including "the principles and the rules with regard to agency and evidence and to a scrutiny," in all matters arising for determination in election, disputes. Parliament's presence at the trial is secured by the provision that the shorthand writer of the House of Commons shall attend. Where there is difference of opinion between the two Judges as to whether a returned candidate was duly elected, the election stands, and if they agree that he was not duly elected, but differ only on other matters, the election is void. There is no provision for reference to a third Judge in such cases. There is an appeal on a point of law by special leave of the High Court which is to be heard by the Court of Appeal, whose decision shall be "final and conclusive". All authorities agree that this jurisdiction is really a part of the Parliamentary jurisdiction, the High Court being used as a body to which determination of disputed elections and of all questions arising therein has been entrusted. There would appear to have resulted from this development of the law in England, a transfer of an extremely important power of the sovereign Legislature, namely, power of determining its own composition, from the Legislature itself, to the High Court so that in a sense; in the limited field of election disputes, it is the High Court, which is the final determining authority, and not Parliament as before. Such a condition, under a system which provides for mutually exclusive status and powers to be possessed and exercised by the three great organs of the State, namely, the Executive, the Legislature and the Judiciary, may be thought to create an anomaly, from which great disputes and difficulties could arise such as might shake the very foundations of the State. In a country with a very long tradition of Parliamentary Government as well as of judicial nicety and restraint, the system may well be operated without injurious consequences, despite the anomaly, but instances are not wanting in countries where the general pattern of the British Constitution has been recently adopted, where the question is under serious and active discussion whether the sovereignty of the Legislature within its own field is not being eroded by actions of the Judiciary under assumption of powers in certain important respects. The condition is not infrequently found where following an election, the parties are so evenly balanced that the ascertainment of a majority might turn on the result of a few election petitions. In such a case, the question may well arise whether in fact it will not have been entrusted to the Judges; should election disputes be made matter for judicial decision; what should be the composition of the House, entailing such question of transcendant importance as which shall be the majority party to rule the country
I say this, not with reference to anything arising in this case directly, but for the reason that where 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 contrast 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 such 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.
A matter of possibly greater interest for the interpretation of our own laws is the development of the law of election disputes in the colonies and dependencies qua the plenary jurisdiction of the King exercisable through the Judicial Committee of the Privy Council to review all judgments from the colonial Courts. That sovereign jurisdiction must be conceded to be a good deal wider in scope than the power exercisable by the King's Bench Division, through the prerogative writs which had, in the course of time, become confined in their scope and effectiveness through successive judicial pronouncements. The Judicial Committee throughout firmly set its face against interference with the decisions of Courts in the colonies and dependencies, which had been designated either by local legislation or by royal Order-in‑Council to be Tribunals for determination of election disputes.
I quote in this connection a passage from the judgment delivered by the Privy Council in the case of Parnis v. Agius (1):‑
"The clause of the Letters Patent which deals with this matter is section 33, and is in the following terms:‑
All questions which may arise as to the right of any person to be or remain a member of the Senate or the Legislative Assembly shall be referred to and decided by the Court of Appeal in Malta.'
To their Lordships these words appear to be clear and distinct. They direct that all questions touching the membership either of the Senate or of the Legislative Assembly created by the Letters Patent themselves shall be referred to and decided' not by the First Hall of the Civil Courts, or any Court of first instance, but by the Court of Appeal of Malta, the highest Judicial Tribunal of the Island. Even if their Lordships had in this matter been without authority to guide them, they would have been led by the words themselves to the clear conclusion that his Majesty had advisedly designated his Court of Appeal in Malta finally to determine all these questions. It appears to their Lordships that the section being found in Letters Patent, in which his Majesty's own words are used, gains in this respect an added significance, the force of which ought to have full effect given to it.
But this view is, their Lordships find, fully confirmed by the authorities, of which Theberge v. Laudry 2 App. Cas. 102 is the most notable.
In that case, which dealt, as this does, with questions relating to the membership of the legislative bodies, it is pointed out that decisions upon such matters are. not decisions of mere ordinary civil rights; that such an enactment as this section 33 creates an entirely novel jurisdiction, the history of which, in cases where the Legislative Assembly is not itself then created f6r the first time, has been that the ‑Assembly has, by its own consent, concurred in vesting in the Court the jurisdiction hitherto inherent in itself of determining the status of those who claim to be its members. The jurisdiction is extremely special; it is of a character that ought, as soon as possible, to become conclusive, in order that the constitution of the assembly may be distinctly and speedily known. And there is another reason for finality in such a jurisdiction. It concerns what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously maintained and guarded in complete independence of the Crown so far as they properly exist, and as Lord Cairns adds in delivering the judgment of the Board in Theberge v. Laudry :‑
It would be a result somewhat surprising, and hardly in consonance with the general scheme of the legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no logger belonged to the Superior Court which the Legislative Assembly had put in its place, but belonged to the Crown in Council, with the advice of the advisers of the Crown at home, to be determined without reference either to the judgment of the Legislative Assembly, or of that Court which the Legislative Assembly had substituted in its place . . . . . Their Lordships have to consider not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this Tribunal with the ordinary incident of an appeal to the Crown.'
It is true that these words were spoken in a case where the Special Tribunal had been created with the consent of the Legislative Assembly, and not as, in this instance, where the Assembly itself brought into existence by the Letters Patent, which also confer this jurisdiction on the Court of Appeal. But, as it appears to their Lordships, his Majesty, in these Letters Patent, is merely adopting principles to which all Lord Cairns's reasoning applies. He assumes that any enlightened legislative body would itself choose just such a Tribunal as he himself prescribes for the determination of all such questions; accordingly he creates a jurisdiction in terms of finality which leave no room for any review by himself,"
The Order‑in‑Council in that case was a constitutional instrument and it is noticeable that although the relevant clause merely said that the particular questions "shall be referred to and decided by the Court of Appeal in Malta," the Privy Council found no difficulty in construing those words in the sense of finality, even qua the plenary jurisdiction of the King himself, having regard to the special nature of the jurisdiction created by the said Order‑in- Council. The Privy Council's total refusal to interfere with the decisions of the designated Courts whether on fact or law, had the effect that the resolution of all questions of law, including question of interpretation of the relevant statute, as well as the decision of all questions of fact arising in such disputes became exclusively a matter for determination, finally qua the sovereign jurisdiction of the King as the fount of justice, by those Courts, acting as agents of the Legislatures in question.
That as has been seen was also the condition in Pre -partition India and in Pakistan until the passing of the Constitution of 1956, and it is an important question for consideration, in the light of the changes effected in the law in the period from 1958 up to the passing of the Constitution of 1962, whether the intention of Article 171(1) in the new Constitution is not the same intention as was attributed to the Malta Order‑in‑Council by the Privy Council in the case cited immediately above. The words o Article 171(1) are certainly sufficient to support a positive answer. In the Malta Order‑in‑Council, the words were merely "shall be referred to and decided by the Court of Appeal." In Article 171(1) the words are far more emphatic, namely, that the law to be made under subsection (1) is to provide for the disputes in question "to be finally determined" by the designated authority and tribunal respectively.
A third ground of not less weight is available to support the same view. It is that the entire law of election is of a special character which has throughout been applied in pre‑Partition India, and in Pakistan, except for the short period mentioned above, through Election Tribunals appointed ad hoc, with no provision for appeal or review, the consequence being that there is no established corpus juris on the subject. The reason for this is not far to seek. It is that in the sub‑continent, processes of election bad been applied which had been imported from a foreign country, to a people to whom they were a total novelty. The objective before each of the contesting candidates being to secure the largest number of votes from the electorate, which objective has always been pursued with extreme intensity, utilizing to the full the knowledge possessed by the candidate and their agents and workers, of the varying and generally very high degrees of innocence, of ignorance, of superstition, prevalent in the mass of the voters, the variety and ingenuity of the methods by which gratification was offered in return for the vote, by which influence was brought to bear upon individual voters and groups of voters, by which the substitution of one elector for another was practised, by which one candidate queered the pitch for his rivals, has been infinite. These methods varied from constituency to constituency according to the local circum stances, the character of the people, their customs and practices and all the other matters which go to the application of the influence of one person to another, for the purpose of getting advantage from the latter. Such an enormous range of variations is per se not susceptible of being reduced to rule in a practical sense, and that would appear to be at least one of the reasons why all decisions in election disputes in nearly all countries have been ad hoc, at least until recent time when the appellate jurisdiction of the High Court was introduced first in England and following that in certain other countries, including our neighbouring country of India. In a word, it may be said that the whole of the election jurisdiction has been treated, by and large, as being outside the range of regulation through processes known to establish Courts such as the High Court. It is true that a judicial process is provided for the reception of petitions and applications and for the investigation of the issues raised. There are definitions couched in general terms, of the various corrupt practices and illegal practices. As a general rule, persons with judicial experience are appointed to act as deciding authorities. In the present case, the Member whose order came before the Full Bench of the West Pakistan High Court is himself a Judge of the same High Court. By section 61 of the Act of 1964, an Election Tribunal is to be composed of three members, two of whom are to possess the qualifications necessary to be a Judge of the High Court and the third should have held the office of a District Judge for not less than three years. By these means, adjudication on correct lines in accordance with natural justice and the special law is presumably intended to be ensured, and in the view which I take of Article 171(1), the further intention is that a decision reached by such an authority or the Tribunal should be a final determination of the dispute. That such authorities act, not as members of the Judiciary, but as an agency to exercise the jurisdiction belonging essentially to the Legislature; is a feature which in itself involves the quality of finality in relation to their decisions. All these circumstances combine to create a presumption that the jurisdiction thus created is not one in respect of which the High Courts could be thought to be invested with power of supervisory jurisdiction. A case of a parallel kind may be that of the ecclesiastical Courts in England vis‑a‑vis the prerogative jurisdiction to issue writs of prohibition and certiorari. An exhaustive and learned discussion on this subject will be found in the case of The Chancellor of St. Edmundsbury and Ipswich Diocese (1). It was sought in that case to use the writ of certiorari to remove a cause from an ecclesiastical Court to the King's Bench Division for quashment of an order made by the former within its jurisdiction. It was a simple order permitting a mother to have access to the grave of her child in a churchyard. It had been argued strenuously that the Judges of the King's Bench had knowledge of the ecclesiastical law as being part of the general law of England, which may be ascertained in the ordinary way. Yet, it was conceded that certiorari would not lie to correct and reform the judgment of the ecclesiastical Court Wrottesley, L. J. cited the following passage from an earlier decision:‑
"It is without precedent to grant a prohibition to the Ecclesiastical Court, because they proceed there contrary to the canons"
and explained the meaning to be that not even this writ could be issued to correct an Ecclesiastical Court, so long as it erred within its jurisdiction. The passage could also be read as meaning that the interpretation of the canons by which the Ecclesiastical Courts were governed was a matter for the exclusive determination of the Ecclesiastical Courts, whose determination would not be subject to correction by the King's Bench. The learned Lord Justice went on to say:‑
"But if the Spiritual Court has jurisdiction, I am note aware of any instance in which this Court has granted a prohibition, except in cases where it proceeds to the trial of a matter triable only by the Common Law, or where the construction of a statute, which is peculiarly confined to the Common Law, comes in question."
And later:‑
"The King's Bench was always careful not to endeavour to interpret ecclesiastical law, which was neither civil nor canon law, except in a case where it had to do so in order to exercise its jurisdiction to prevent Courts of limited jurisdiction from straying beyond those limits."
Evershed, L.. J. (as he then was) said:‑
"There is . . . . a difference in principle between Courts having exempt jurisdiction in the sense that by some statute exclusive jurisdiction quoad certain subject‑matters is conferred upon them . . . . and Courts administering a system of law wholly distinct, both in substance and in matters of procedure from the system of law administered in the King's temporal Courts."
Earlier in the same judgment, the Lord Justice had expressed himself as being:
"disposed to think that the true ground of the absence of jurisdiction is to be found in the fact that the Ecclesiastical Courts administered a system of law foreign to and having,. No privity with the Courts of the common law, the civil law which they administered being concerned primarily with rights and duties of spiritual import."
The difference between, the questions arising ordinarily before the authorities to whom election disputes are entrusted for disposal and questions of a similar nature arising before the ordinary Courts is not so great as that between matters falling under canon law and those which the King's Bench Division dealt with under the common law. But the observations of the learned Lord Justice in this remarkable case are applicable with a fair degree of closeness to the question of the special nature of the jurisdiction of the election tribunals vis‑a‑vis that of the High Court. Here, of course, the scope of the High Court's power of interference is limited by expression in Article 98 to cases where action has been taken "without lawful authority," and what I have said above is to be understood in the sense that unless it can be found that designated authorities have acted "without lawful authority," there is no power of intervention. "Lawful authority," in relation to a jurisdiction which is exercised by tribunals in a field which may be described as foreign, necessarily includes the resolution of all questions of law, including questions of interpretation of the relevant law, and of all questions of fact arising for determination. Anything in the nature of the exercise of a full scale appellate jurisdiction must, be rigorously avoided by the High Court, for that would be to override the requirement of the Constitution that the power under Article 98 should be exercised so as to give full effect to the terms of such a provision, as that contained in Article 171. It is tempting to examine their question from the point of view that the expression "without lawful authority" should be so construed in relation to the terms of the Act of 1964, that with the exception of direct contraventions of mandatory provisions, and in the absence of such circumstances and lack of competence or disqualification by bias or otherwise, or of fraud or malice which is destructive of all power under law everything done under the authority of that Act should be deemed to be within the lawful authority of the prescribed person or tribunal. But nothing within those categories is alleged here, so that no general proposition to that effect need be laid down. The faults which have been found by the Full Bench in the order of the Member are in the main two, namely, that from certain evident circumstances, he has not drawn, the only inference that could possibly have been drawn and secondly, that his interpretation of the relevant law is wrong when he declares (a) that the question which came before him was of such a nature that it was outside his jurisdiction and fell properly within the jurisdiction of an Election Tribunal, and (b) that a vote which bears either the official seal, or the Presiding Officer's initials cannot be rejected under section 38(2)(a) of the Act.
The learned Judges of the Full Bench next proceeded to consider the contention raised before them that as the Election Commission was constituted of persons having the status of Superior Judges, and as in particular the Member whose order was placed before the Full Bench for judicial review was himself a Judge of the High Court, no writ could be issued to him. The learned Judges agreed that no writ could issue to a Superior Court, and this is clearly in accordance with the direction derivable from the definitive provision in Article. 98, that no order under that Article shall issue to the Supreme Court or a High Court. But they found that the Member was persona designata in the case, and did not act as a Judge of the High Court and relying on two cases from the English jurisdiction in which it was held that certiorari could issue in respect of an order of a High Court Judge acting as a Tribunal, they came to the conclusion that the Member was "subject to the control of the High Court under Article 98 and is amenable to an order passed by it under that Article". In the two decisions from the English Courts, which have been cited, there was an express provision to the effect that a decision by the Tribunal will not be deemed to be a decision by the High Court, but for the interpretation of Article 98, in respect of this question that consideration is not of appreciable weight. The learned Judges were in all probability right in considering the Member to be persona designata, and not the High Court or a Judge of the High Court, when acting under section 53, but one may be pardoned for referring here to a small observation in one of the judgments cited by the Full Bench with reference to the idea of a Superior. Court issuing a writ to itself, viz.:‑
"the process involves the rather ludicrous position that Judge, are called upon themselves to show cause to themselves"
why their orders should not be quashed. In the present case, the order in question is made by a Single Judge of the High Court acting as the relevant authority, but it is conceivable that a statute may appoint a Tribunal of say two or three High Court Judges to adjudicate matters arising thereunder, and then indeed the aspect of ludicrousness' might arise if a writ were sought from a Single Judge of the High Court to avoid actions by such Tribunals. In a number of statutes in the United Kingdom express provisions are included which avoid the writ jurisdiction in relation to such adjudications, and it is a matter for consideration whether such provisions should not be made use of in Pakistan as well. Quite apart from the aspect of ludicrousness' there are other and more weighty considerations involved, such as the necessity of maintaining a high degree of comity among the Judges of the Superior Courts, which could be urged in support of such a provision.
The learned Judges then proceeded to consider whether the Member had exceeded his lawful authority in refusing to reject the ballot papers in which foreign objects were enclosed. They thought that by the effect of section 52 of the Act of 1964, every matter which the Member was competent to decide was excluded from the jurisdiction of the Election Tribunal, and his refusal to decide whether or not the aforesaid ballot papers carried a mark enabling those who cast them to be identified was in their opinion an act without lawful authority. I have already considered this question, and my conclusion is firstly that the Member in fact had decided the question, when he held that the ballot papers could not be rejected unless a condition were first satisfied, namely, that it should be shown that the foreign objects were inserted as a result of pre‑arrangement with a person or other persons interested, and further, that a latter condition was one whose existence could only be adjudicated upon by the Election Tribunal. The Full Bench proceeded to cite authority to the effect that if by erroneous decision on a point of law, the lower Court has been led into refusal to exercise its jurisdiction, the High Court may interfere. They came to the conclusion that the High Court's jurisdiction under Article 98 was attracted in the case on the ground that the Member had come to an incorrect decision on a point of law as to the exercise of his jurisdiction. The question thus comes up in bold relief is the High Court vested with authority to revise an interpretation of the election law given by the Member under section 53 of the Act of 1964,and on such basis to hold that the Member's action was "without lawful authority " The decision of that question turns clearly upon a true construction of Article 171(1), for a number of reasons which have been discussed in detail above, the view from which I find no escape is that the final determination of a question of law, including a question of interpretation of the relevant law, is placed by Article 171(1) within the exclusive and final jurisdiction of the designated authority, and this is a provision of the Constitution subject to which the High Court must' exercise its power under Article 98. In other words, it is not for the High Court to review an interpretation so placed upon the election law by an authority acting under section 53, and consequently it is not open to the High Court to reach a different interpretation and oz that basis to declare (a) the act of the Member to be without lawful authority, and (b) that the petitioner before them was left with "no other adequate remedy" than that available under Article 98.
The learned Judges went on to say that the expression "lawful authority" under Article 98 has a wider significance than the word "jurisdiction," on the basis that it embraces authority, other than Courts, and to that extent their view is probably correct, although it is not germane to the decision of the question before them. Yet, it is necessary to record a caution with respect to the interpretation of the expression "without lawful authority," namely, that the authority conferred by the relevant law is not to be compressed or confined, for the purpose of the exercise of power under Article 98, but it is only after the terms] used in the relevant law have been given their full effect, for ascertaining the authority thereby conferred, that anything done beyond or in excess of that authority may be brought within the power of avoidance vested in the High Court. The learned Judges referred to the observations of Kaikaus, J., in the case oaf Badrul Haque (cited above) for the purpose of supporting their interference on the ground that, in this case,‑
"it cannot be said that there was merely wrong interpretation of the law since it also resulted in the refusal to exercise jurisdiction vested by law."
For the reasons already given, I am unable to support this view.
An unreported case that of "Fazal Karim Khan v. Muhammad Akbar Khan" decided by Mr. Justice Masood Ahmad sitting as Appellate Tribunal in a matter of counting of votes at a Provincial election under a provision of the National and Provincial Assemblies (First Elections) Order, 1962, very similar to section 53 of the Act of 1964, would appear to support the view of the Full Bench. There a five‑rupee note was found clipped to a ballot paper. The Returning Officer had ruled that this was not a mark by which the elector could be identified. The appellate Tribunal reversed this decision holding inter alia that it was not necessary that the voter's identity should be revealed to the Returning Officer, and observing as follows:‑
"If in accordance with the arrangements between a candidate and an elector, any such mark is put on a ballot paper; that arrangement would not be known to the Returning Officer, but after the ballot paper has been so marked, the candidate concerned would know that a certain elector with whom he had come to such an arrangement had voted for him,"
decided that the secrecy of the ballot had been violated, and rejected the vote. This case is mentioned in the order of the Member, as a case where pre‑arrangement was held to be necessary for rejection of the vote. It could be more correctly described as a case where, in the limited process of counting of votes, one, was rejected on an inference of a corrupt practice having been committed in relation to it, which was exclusively for the Election Tribunal to find, under the relevant law.
Earlier in this judgment I have also given my reasons for thinking that the Member was right in his view that the matter fell to be decided by the Election Tribunal as it involved a corrupt practice, which he could not enquire into. The latter view is not without support from earlier cases. In the All‑India Reporter 1955, Notes of Unreported Cases, Volume 2, entry No. 5798 furnishes a short report of a decision of an Election Tribunal in the year 1954, in the case of Ram Singh v. Hardit Singh. In that case, at the counting of the votes, a rupee‑note was found attached to one of the ballot papers and it was held that there was no rule under which such a vote could be invalidated. In a more recent case before the Indian Supreme Court reported as Dr. Anup Singh v. Abdul Ghani (1), there will be found a ‑valuable discussion of the nature of marks on ballot papers, which would render them invalid for the reason that the electors would thereby be identified. The following passage from that judgment would appear to support the view of the Member to a considerable extent:‑
"But the words used by the Legislature are any mark or writing by which the elector can be identified' and this in our opinion implies that there should be something more than a mere possibility of identification, before a vote can be invalidated. This may happen when some pre‑arrangement is either proved or the marks are so many and of such a nature that an inference of pre‑arrangement may be safely drawn without further evidence."
Later, in the same judgment, the learned Judges observed as follows:‑
"We may also add that when scrutinizing the ballot papers under rule 37‑A and considering whether a particular ballot paper should be rejected, it is not necessary for the returning officer to take evidence, though if any party is prepared to give evidence then and there while the scrutiny is going on and votes are being counted, there is nothing to prevent the returning officer to take such evidence to determine whether the mark or writing is such that the elector can be identified thereby. But generally evidence may not be forthcoming and it will be for the returning officer, the Tribunal or the Court to decide on the ballot paper as it stands whether the mark or writing is such that the elector can be identified thereby."
It should be remembered that these views relate to a case in which all questions in an election dispute went before the Election Tribunal, including questions relating to the "counting of votes", so that there was no question of a finding being recorded, with determinative effect, that certain votes were tainted by corrupt practice in any preliminary proceeding, on the basis of mere speculation or inference as to the, commission of such corrupt practice, without any evidence, and by an authority which was by law debarred from enquiring into corrupt practices. In this case, it was admitted before us that Khan Nasrullah Khan had no evidence to produce at any stage as to any pre‑arrangement, but that is not material. What is material is that if an inference were to be drawn from the marks found, that they were so many and of such a nature as to give rise to an inference of pre arrangement, that was 'a matter for decision within the exclusive jurisdiction of the authorities provided in the Act of 1964. The Returning Officer had the jurisdiction to exclude these votes, and he did so. The Member had the jurisdiction, in appeal, to revise the decision of the Returning Officer and he exercised that jurisdiction to reverse the decision of the Returning Officer, and this too was within his exclusive jurisdiction, and it is, in my view necessary to hold that the Member's decision on the point is a final determination of the question with which the High Court was not competent to deal.
The learned Judges then proceeded to lay down the law in relation to the foreign objects found with 26 ballot papers in this case. They relied almost wholly upon the judgment of Channel, J., in the Exeter case (cited above) for the law which they laid down. The Member, as had already been seen, had relied on the case of Woodward v. Sarsons, (cited above) where in relation ‑to supplementary marks other than those needed to indicate for whom the elector was voting, the necessity of evidence of pre arrangement was emphasised. The view taken in Woodward's case was itself in conflict with that taken in the case of Wigton, and in the Exeter case, the observations of Channel, J., on which the learned Judges of the Full Bench have relied, go beyond and in certain respects, in opposition to the view expressed in Woodward v. Sarsons. These circumstances appearing on the face of the record before us furnish an example of what I have said earlier, namely, that every decision in an election case is essentially an ad hoc decision, and to pick upon any one of these cases, not being a decision of an appellate Court, as laying down the law finally, would be to incur the risk of being L dangerously misled. In any case, each of these three decisions was by an election Court exercising exclusive jurisdiction. What Channell, J., said in the Exeter case was not capable of being corrected under any of the prerogative writs in England. What was actually decided by Channell, J., in the Exeter ‑case was that the words "Up Duke" written on a ballot paper were sufficient material upon which the voter might be identified, and as to that there is ample authority that any appreciable piece of writing on a ballot paper has a quality of distinctiveness sufficient by itself to identify the voter who cast it. On the strength of the observations of Channell, J., in the case of Exeter, the learned Judges have gone on to make the following declaration:
"Now, nobody can say that the enfolding of one‑rupee currency notes, or the half portion of a five‑rupee note, or a piece, or identical chits with Bismillah Arhaman Nirrahim' inscribed on them in identical handwriting with numbers placed beneath the 'bey' of Bismillah' instead of the usual dot was the result of mistakes committed by illiterate and unskilled persons' and not a device that fraudulent people may arrange between themselves for identification,' and it went clearly, beyond the intention to indicate for whom,' he voted."
The quotations within this passage are taken from the judgment of Channell, J. It is clear that in this passage the learned Judges were drawing an inference from the circumstances placed before the Member and later before themselves, that there was something in the nature of "a device that fraudulent people may arrange between themselves for identification." That is a finding of a corrupt practice, and in Pakistan, the Constitution and the law require that it should only be reached by an Election Tribunal. The Member declined to draw that inference, very rightly.
The learned Judges then proceeded to observe on the basis of the law they had thus laid down that "this was not a case where N any evidence of pre‑arrangement was called for," but even if evidence was necessary, they thought
"it was only the Member, Election Commission, who has the power to do it and not the Election Tribunal because it is for the former to determine whether a ballot paper bears any mark by which the elector can be identified."
Enough has been said already to indicate that, in the view that I take, speaking with respect, it was not for the High Court to decide whether or not the ballot papers in question, on their face, required to be rejected, but it also seems clear to me that if the Member had asked for and received evidence relative to pre arrangement, he would have been exceeding his jurisdiction, since he would be enquiring into something which was clearly a corrupt practice, and that only the Election Tribunal could have done.
The learned Judges next examined the order of the Member accepting two ballot papers which bore only the official seal, and not the initials of the Presiding Officer, in relation to the relevant provisions in sections 32(2)(6) and 36(1)(b)(i) of the Act. The former provision requires that before a ballot paper is handed over to an elector, it shall "on its back, be stamped with the official mark and initialled by the presiding ‑officer." The direction is clearly addressed to the Presiding Officer, and it does not convey anything of obligation upon the elector himself in respect of the fulfilment of the requirement, i.e., to satisfy himself that his ballot paper bears on its back both the official mark as well as the initials of the Presiding Officer. At the close of the poll, the Presiding Officer is required by section 36 to open the ballot box and proceed to count the ballot papers, "excluding from the count the ballot papers which bear no official mark or initials of the presiding officer," inter alia. The learned Judges observed that if these provisions be read together,
"the only conclusion that can be reached is that the intention of the legislature was to strictly enforce section 32(2)(6) and a ballot paper which does not bear both the marks shall stand excluded."
The view of the Member is otherwise. He put down the omission of the initials to hurry or inadvertence on the part of the Presiding Officer and thought that
"to reject a ballot paper in such circumstances, is to disenfranchise a person for no fault of his."
In reaching that conclusion, the Member acted upon his interpretation of the relevant provisions in the election law.
That was the determination of a point of law arising in the matter, which in the view I have already expressed above was to be treated as a final 'determination, and for that reason as well as because the determination was made within the Member's lawful authority, his decision was not susceptible of interference by the High Court under Article 98. Moreover, the Member's argument is not with‑out weight, viz., that an error in this respect is totally outside the obligation of the elector, and the law could not intend that he should be penalised for it. It is the duty of the Presiding Officer, under section 32, before he hands a ballot paper over to the voter, to apply the official mark to it, and at the same time, to place his initials on it. There is ground therefore for p thinking that the existence of the official mark is by itself sufficient to show that the paper passed through this process at the hands of the Presiding Officer, and it was mere act of inadvertence on this part that he failed to initial it at the same time. These considerations are relevant for the decision of the question of construction, viz., whether the conjunction "or" as used in the expression "no official mark or initials" appearing in section 36(1)(6) (i) enjoining exclusion of the vote by the Presiding Officer and section 38(2)(a) enjoining rejection by the Returning Officer was not to be understood in a conjunctive, rather than in a disjunctive, sense.
As a result of this somewhat lengthy examination of the various questions arising in this difficult case, I am clear in my view that 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 p 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. I conceive that the provision in section 112 of the Act of 1964, namely, that no Court shall question the legality of any action taken by or under the authority to the full in Member of the Commission exercising the authority or the Commission duly delegated to him under the appellate powers given by section 53 of tile Act. The result is that this appeal succeeds and the order of this Court accordingly should be that the judgment of the Full Bench being reversed, the order of the Member stands, and due effect should be given to it. As questions of great intricacy and delicacy were involved in this case, I would leave the parties to bear their own costs.
S. A. RAHMAN,
J.‑I agree but I would like to add that the instant case is one in which the learned Member of the Election Commission has acted within the limits of his jurisdiction in rendering the decision that he did and that he did not fail to exercise the jurisdiction vested in him by law. If in a particular case, it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1964 orb 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 they provisions of Art. 98 of the Constitution to obtain appropriate) relief, of course within the limited scope of the power given by that Article in view of the exclusive jurisdiction of the authorities concerned. In such yin eventuality the impugned order could not be said to fall within the four corners of the exclusive law and would not therefore be immune from challenge, if it is brought up for examination by the High Court at the appropriate stage.
FAZLE‑AKBAR, J. ‑‑I
agree with the conclusions at which my Lord the Chief Justice has arrived and have nothing to add to the reasons which have been stated with such fulness. I would only add that ordinarily the Court in exercise of its writ jurisdiction would decline to interfere in cases of Election. It however, cannot be said that the writ jurisdiction of the Court cannot be at all attracted in such cases. As pointed out by this Court in the case Imtiaz Ahmad v. Ghulam Ali and others (1), actions of the Election Authorities can always be called in question if they are characterised as being done mala fide or in bad faith. In the present case however, there was no allegation of mala fide or bad faith on the part of the Election Authorities.
B. Z. KAIKAUS,
J.‑I am in respectful agreement with my Lord the Chief Justice that this appeal be allowed, but I am adding this judgment because on some points my line of reasoning is not the same.
The main question that falls for decision in this appeal is as to the extent of control that is vested in the High Court by virtue of Article 98 of the Constitution in respect of the orders passed by judicial tribunals. The matter has to be decided on an interpretation of paragraphs (i) and (ii) of sub‑Article (2)(a) of Article 98 which I reproduce below (along with) sub‑Article (2)) for easy reference:‑
"98. Jurisdiction of High Court (1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law.
(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law‑
(a) on the application of any aggrieved party, make an order‑ .
< [if supportLists]>(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceeding taken in the Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has been done or taken without lawful authority, and is of no legal effect; or
Both paragraphs (i) and (ii) may be attracted where jurisdiction under Article 98 is invoked in respect of an act of a judicial tribunal, but Mr. Manzoor Qadir has mainly relied upon paragraph (ii) because he has sought (and obtained) from the High Court a declaration of the invalidity of an order of the Member, Election Commission, and such declaration can be granted only under paragraph (ii). Under this paragraph the High Court can declare an act "to be without lawful authority and of no legal effect", and we are therefore concerned, so far as the argument of Mr. Manzur Qadir is concerned with the interpretation of these words.
Mr. Manzur Qadir puts his argument thus. He first refers to what was understood by a writ of certiorari in England. He states that initially it envisaged a wide jurisdiction in which errors both of law and fact could be corrected, but that in the nineteenth century it became confined to errors relating to jurisdiction, that is, failure to exercise jurisdiction, excess of jurisdiction, and illegality or irregularity in the exercise of jurisdiction. To put the matter shortly the scope of certiorari in the nineteenth century was the same as that of section 115 of the Civil Procedure Code; if there was failure or excess of jurisdiction or illegal or materially irregular exercise of it the decision could be challenged by certiorari, but if while acting within the field of its jurisdiction the Tribunal committed errors of law or ‑fact its decision was not liable to be challenged on that ground. Mr. Manzur Qadir then goes on to state that in the twentieth century there was again a swing ;of the pendulum in favour of extension of the scope of certiorari
and he relies on R. v. Northumberland Compensation Appeal Tribunal (1),
for the contention that to the errors of jurisdiction was added an error of law "on the face of the record". This he contends is the present accepted position in England, that is, errors of law on the face of the record can also be corrected to meaning of error of law counsel contended that it did not mean an error patent on the record, but an error of law which can be discovered on a perusal of the record which is submitted by the inferior Court or Tribunal to the Court exercising certiorari jurisdiction. According to him interference on account of mistake of law is dependent on the contents of the record submitted by the inferior Tribunal. If the inferior Tribunal chooses not to refer to a particular question of law in its order, that question cannot be a ground for interference in certiorari, but if the
question of law does appear from the record it does not matter that the question of law is a difficult one on which two views can be taken. If the Court exercising certiorari jurisdiction entertains on that question of law an opinion different from that of the inferior Tribunal the order can be quashed in certiorari.
Mr. Manzur Qadir next contends that the jurisdiction under para. (ii) of Article 98(2)(a) is commensurate with certiorari jurisdiction. For this contention he does not discuss the meaning of the words "without lawful authority" or of the words "is without legal effect". ‑ He argues however
(i) that if we do not accept his interpretation of the scope of Article 98(2)(a)(ii) then the worst mistake committed by a judicial tribunal while determining a matter before it will not be liable to be corrected under Article 98 because the words
"without lawful authority" do not admit of distinction between degrees of error and. either there would be jurisdiction to correct all erroneous conclusions of law or there would be no jurisdiction to correct a conclusion of law;
(ii) the High Court has in the exercise of jurisdiction under Article 98 been interfering with orders of a large number of judicial or quasi judicial tribunals on the ground that their conclusions of law were erroneous, (e.g., Custodian, Rehabilitation Authorities, Settlement Authorities, Collector of Customs, etc.) and if it be held that an error of law cannot be corrected all that jurisdiction will disappear; and
(iii) that Article 2 of our Constitution which provides that all citizens of Pakistan are entitled to be treated in accordance with law and only in accordance with law necessarily implies that there is an authority which can lay down what that law is, and that authority must be the Supreme Court; in the case of ordinary Courts the Supreme Court could always lay down the law, but so far as Special. Tribunals are concerned it is only by virtue of Article 98 that the law can be laid down.
Having urged that under Article 98 of the Constitution the High Court can correct errors of law committed by a judicial tribunal. Mr. Manzur Qadir next contends that the Member, Election Commission, has committed an error of law in construing section 38 of the National and Provincial Assemblies Act and that his order is liable to be quashed.
This is a general argument of Mr. Manzur Qadir on the scope of Article 98 and on the liability of the impugned order to be quashed on the ground that a judicial‑ tribunal while determining a matter before it has misinterpreted a law. However, Mr. Manzur Qadir has also a specific argument as to the illegality of the order of the learned Member, Election Commission, by which he argues that the action of the learned Member was "without lawful authority". Following is the argument:‑
"Section 38 prohibits the acceptance of a ballot paper bearing a mark by which the elector can be identified. The disputed ballot papers did (if the interpretation of section 38 put forward by Mr. Manzur Qadir is accepted) bear marks by which the elector could be identified. The learned Member has by accepting ballot papers whose acceptance was prohibited by law acted illegally and without lawful authority."
The distinction of this argument is that it gives to the mistake alleged to be committed by the learned Member the appearance of an illegality in the exercise of jurisdiction.
With this specific argument I will deal later and I will in the first instance discuss the question whether an error of law (apart from an error relating to jurisdiction) attracts the application of Article 98.
In the Constitution of 1956 jurisdiction for judicial control had been conferred on the High Courts in terms of English writs of certiorari, mandamus, etc. Similar was the provision in the Laws (Continuance in Force) Order of 1958. The defect in this method of conferment of jurisdiction was that whenever a question arose as to the limits of this jurisdiction reference had perforce to be made to the scope of various writs in England. The English judgments were not uniform and in fact some of them were hard to reconcile. It was desirable therefore that the jurisdiction of the High Court be stated without reference to the English writs and in words which it would not be difficult to construe. This is what, I presume, the draftsman of the present Constitution attempted to do in Article 98. Whether he succeeded in making the limits of the jurisdiction clear is another matter.
The words used in paragraph (ii) of Article 98(2)(a) are "without lawful authority" and "of no legal effect". Mr. Manzur Qadir has not while arguing that the High Court can quash the order of the learned Member, Election Commission, relied on paragraph (i) because it is only para., (ii) that enables the High Court to pronounce an act or proceeding to be "without lawful authority and of no legal effect" and that is what Mr. Manzur Qadir wants the High Court to do (in fact he has procured such an order). When I consider the words used in para. (ii) it appears to me that whereas Mr. Manzur Qadir wants the High Court to quash an order even on the ground that an error of law has been committed while determining the merits, the correct position is that even errors committed in the exercise of a jurisdiction which admittedly exists are not within this paragraph, that is, even when a judicial tribunal acts illegally or with material irregularity in the exercise of its jurisdiction the order cannot be quashed under this paragraph. It is true that this has not been argued by learned counsel for the appellant and it is true also that we have, when hearing appeals against, orders of the High Court in the exercise of its jurisdiction under Article 98 been assuming that a, power to interfere with illegal or irregular exercise of jurisdiction did exist, but now that I have to interpret Article 98 1 do not see how it is possible to construe paragraph (ii) of Article 98(2)(a) so as to include such a power. Had this paragraph only used the words "without lawful authority" the matter would have been easy. But the paragraph also says "and is of no legal effect". A simple finding that an act is without lawful authority is insufficient. It must further be found that the act or proceeding' "is of no legal effect". When we say that something is of no legal effect, we mean it is a nullity. It has no existence in the eye of law. Can it be said that an order of a judicial tribunal made while it is acting within its jurisdiction, but illegally or with irregularity is "of no legal effect" It can be said on the basis of legal concepts well established in pre‑Partition India and in Pakistan that the answer to this question has to be in the negative. I proceed to explain this and, will first reproduce section 115, of the Civil Procedure Code which is of help in appreciating the legal distinctions involved;
"115. Revision.‑The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit." .
It is necessarily involved in this provision that a Court acting illegally or with material irregularity is still acting with jurisdiction. An illegality or irregularity in the exercise of jurisdiction is not the same as acting without jurisdiction. This proposition which is involved in section 115, C. P. C., is one that has been accepted even in England as will appear from the cases and commentaries on which Mr. Manzur Qadir relied. These cases and commentaries showed that if a Tribunal was acting within its "field", its acts though illegal would not be without jurisdiction. If I put the matter in my own words I would say that if a dispute be in the proper forum then the fact that illegalities are committed in the determination of the dispute does not render the proceeding without jurisdiction. That logically the proposition involved in section 115 is not open to criticism and that in fact it constitutes the only view that was reasonably possible will appear from the examples which I will presently cite.
If an order passed in the illegal or irregular exercise of jurisdiction is not without jurisdiction, can it be said that it is, "without legal effect" It is only acts without jurisdiction as have no legal effect. When a judicial tribunal acts with jurisdiction its order has full legal effect till it is set aside by appeal, revision, etc. Let me refer to examples where a Court acts illegally in the exercise of jurisdiction. A Court acts illegally in the exercise jurisdiction when, by a misinterpretation of the relevant provision, it entertains a suit which is barred by res judicata, or Order II, rule 2, or Order IX, rule 8, C. P. C., or which is time-barred. Now it is impossible to say about the decree passed by the Court in such cases that it has no legal effect. It is a good and valid decree binding on the parties unless it is set aside in appeal or revision. On the other hand if a Court acts without jurisdiction its order or decree is of no legal effect and has to be ignored. If a Court which has no jurisdiction under the Succession Act grants a succession certificate or probate of a will, or a Court which does not possess any jurisdiction under the Guardians and Wards Act appoints a guardian of a minor, or a Small Cause Court passes a decree for possession of land, or a civil Judge with pecuniary jurisdiction up to Rs. 1,000 passes a decree of Rs. 2,000, the order or decree has no legal effect. Such is the decree or order which is covered by para. (ii) of Article 98 (2)(a).
I had said in the last but one paragraph that the examples Which I cite will show that the view involved in section 115 is the only reasonable view to take. I have cited examples of decrees passed by Courts on a misinterpretation of the provisions relating to res judicata, Order II, rule 2, and Order 1X, rule 8, C. P. C., etc. These are cases of illegal exercise of jurisdiction and it should be clear that unless we are to create utter confusion in the administration of justice these decrees though truly the result of illegal exercise of jurisdiction cannot be held to be without jurisdiction for what is without jurisdiction is a nullity and has no existence in the eye of law, and a Court before whom a decree or judgment based on a misinterpretation of res judicata was produced will have to ignore the judgment or decree although it had never been set aside. Also objection could be taken in execution of such a decree that it was a nullity and not capable of execution. Such a situation is not envisaged by our procedural provisions which proceed on the basis that mistakes of illegal or irregular exercise of jurisdiction have to be corrected by appeal or revision and if these are not resorted to the judgment, decree or order, in spite of its defect becomes binding.
It is a distinction attaching only to judicial tribunals that their acts within their jurisdiction though illegal are not null and void. So far administrative officers and authorities are concerned there is no distinction between illegality and want of jurisdiction. When an administrative officer acts illegally he acts without jurisdiction. An administrative officer has authority to pass order or to take action if certain facts exist. If those essential facts do not exist his order or action is void.
To revert to the question under discussion para. (ii) of Article 98(2)(a) does not cover even the case of an illegal exercise of jurisdiction. It should be explained here that proceedings under Article 98 are collateral to the proceedings with which the High Court deals while exercising jurisdiction under this Article and are not a continuation of the same proceedings like an appeal where a cause is reheard. The High Court when acting under Article 98 simply examines the legality of proceedings taken by those whom the law has granted certain powers. If it finds the proceedings illegal it declares them to be so. The proceeding under Article 98 is like a suit in which an order passed by an officer or authority is being challenged. Truly speaking there is not much difference between the jurisdiction of the High. Court while acting under clause (a) of Article 98(2) and the jurisdiction exercised by an ordinary civil Court. Under para. (i) of clause (a) the High Court can order a person to do that which he is bound to do or to refrain from doing that which he is not permitted by law to do. The ordinary civil Court can also issue an injunction to the same effect, the only difference being that the ordinary civil Court is bound by the limitations in section 56 of the Specific Relief Act while the limitations on the powers of the High Court are those stated in sub‑Article (3) of Article 98. Under para. (ii) of clause (a) the High Court can declare an order to be of no legal effect and the ordinary Civil Court too can always grant a declaration that an order is without legal effect as was held by the Privy Council in Fisher v. Secretary of State (I L R 22 Mad. 270).
Although errors committed in the exercise of jurisdiction cannot be corrected under para.(ii), para. (i) may be of great help in resolving this difficulty. It does not contain the words "is of no legal effect" and under it the High Court can direct a person to perform his duty under the law. The High Court can direct a judicial tribunal to exercise the powers conferred on it in accordance with law so as to avoid any illegal step in the exercise of jurisdiction. As long as the judicial tribunal has not passed final orders there will be no difficulty in having recourse to l para. (f). When it has passed final orders those orders will be valid in spite of any illegality committed in the exercise of jurisdiction and a question may arise as to how that order can be quashed. It may be possible to take the view however that the Tribunal may in spite of the passing of the final order be directed to proceed in accordance with law from the stage where the illegality was committed so that subsequent proceedings are automatically nullified.
Although the fact that even an illegal exercise of jurisdiction is not covered by para. (ii) would negative any claim that an error of law committed by a judicial tribunal while determining the merits of a dispute is within this para. it will be proper to deal with the whole of the argument of Mr. Manzur Qadir on this point. Mr. Manzur Qadir contends that every mistake of law is an act "without lawful authority". For this proposition as I have already stated, he cites no judgment or commentary. I have already reproduced the whole of his argument. He relies on the following considerations:‑
(i) that according to R. v. Northumberland Compensation Appeal Tribunal certiorari includes error of law on the face of the record;
(ii) that if his contention is not accepted serious mistakes of law will be immune from attack;
(iii) that there are a number of tribunals whose mistakes are being corrected by the High Court in exercise of its powers under Article 98; and
(iv) Article 2 of the Constitution necessarily implies jurisdiction in the Supreme Court to correct errors of law.
What was included in certiorari can only serve as a background, but I do not think even that background helps Mr. Manzur Qadir because for the proposition that "errors on the face of the record" could be corrected by certiorari, he relies only on R. v. Northumberland Compensation Appeal Tribunal, a case of 1951 and admits that previous judgments were against him. The correctness of the judgment relied upon by learned counsel has, as pointed out by my Lord the Chief Justice been doubted in a case of 1954.
However we are really concerned only with the interpretation of "without lawful authority" (ignoring for the present the words "of no legal effect"). For more than a century the view had been taken in pre‑Partition India, and it has persisted in Pakistan that if a Court has jurisdiction to decide a matter it has jurisdiction to decide it rightly or wrongly. The word "decide" implies a power to come to more than one conclusion. The exercise of the power of decision is exercise of authority given by the law and cannot be said to be unlawful. (Of course, the case is different when a Court determines a matter relating to its own jurisdiction for no Court can, by a misinterpretation of the law relating to its jurisdiction alter the limits of its jurisdiction or the conditions to which it is subject). Nothing has been said before us for showing that this view suffers from any defect. On the other hand if it be accepted that a wrong decision on a question of law renders an act "without lawful authority", the High Court would be converted into a Court of second appeal (under section 100, C. P. C.) in respect of all orders passed by any judicial or quasi‑judicial tribunal. Section 115, C. P. C. would on this interpretation of Article 98 become useless for the jurisdiction of the High Court under Article 98 (it extends over Courts too) would be larger than that exercised under section 115, C. P. C. Section 100, C. P. C. and some other provisions which grant the High Court limited power to interfere with judgments of some Courts would become redundant. This is not all. If a wrong conclusion on a question of law is a conclusion reached without lawful authority there is no reason why a wrong conclusion on a question of fact should not be without lawful authority for the defect in both cases consists in the mistake in the conclusion reached, the exercise of the power of decision being in each case perfectly lawful.
While arguing that an error of law was within the scope of Article 98 Mr. Manzur Qadir also relied on Article 2 of the Constitution which runs:
"2. Right of individuals to be dealt with in accordance with law, etc.‑(l) To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular‑
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from be hindered in, doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do.
Mr. Manzur Qadir contended that inasmuch as this Article granted a right to the citizens and to others in Pakistan to be dealt with in accordance with law, it necessarily implied that there was an authority in existence which could determine what the law was. He urged next that authority could only be the Supreme Court of Pakistan. On this reasoning every question of law decided by any tribunal should ultimately come before the Supreme Court for determination. It is only if it reached the Supreme Court that the citizen or other person could be said to be dealt with in accordance with law.
The argument is quite attractive and I wish I could accept it. Before proceeding to examine it however let me state what I believe to be the object of Article 2. I have little doubt that its object was to negative any claim by the Government that it had inherent power to take action which was not subject to law or that it could deal with individuals in any manner which was not positively prohibited by law. Governments have frequently been making such claims. The King of England could do no wrong and what he did as a King was above the law and beyond the T jurisdiction of Courts. Representative Governments too have been claiming that in some spheres they possess powers of action which are not subject to law. We are quite familiar with the expression "act of State". In pre‑Partition India and in Pakistan there have been a number of cases where a plea was taken on behalf of the Government that the action it took was an act of State and was therefore not subject to the municipal law (which only means the law of the country). Sitting in the High Court I have myself dealt with one such case the judgment in which has been reported as Muhammad Ibrahim v. Government of Pakistan (1) (P L D 1960) Lah. 1073. The view held in these cases was that if an act of the Government in fact fell within the category of Pact of State" it was not subject to municipal law and was immune from challenge. There undoubtedly is a sphere Government action in which is not subject to law. Generally speaking the acts of the Government in relation to foreign affairs and defence are not subject to legal control. There is ‑no law which governs the action of the
Government when it deals with other Governments or prisoners of war or citizens of any enemy country. Even when it deals with foreigners outside Pakistan its action may not be subject to law.
While it cannot be said that Article 2 makes a change in the existing law for even according to the previous decisions there could be no act of State in relation to citizens, its importance should not be under‑estimated. It embodies an important charter. It prevents the Government from taking any action in this country for which there is no legal sanction, and it at the same time debars the Legislature from creating an authority whose actions are not subject to law. The Legislature cannot, in the face of Article 2 enact that whatever action a particular person may take shall be immune from challenge. All persons exercising authority in Pakistan must do .so only in accordance with law. These conclusions have a bearing on the present case for if the Legislature cannot create an authority whose acts cannot be challenged at all it cannot even create an authority whose acts in any particular sphere cannot be challenged. It is not possible for the Legislature therefore to enact that the legality of the acts of a particular authority appointed under a statute cannot be challenged. This will be relevant when I consider the effect of section 112, of the National and Provincial Assemblies Election Act.
However I do not find it possible to agree with Mr. Manzur Qadir with respect to the bearing of Article 2 on the interpretation of Article 98. It is true that if the citizen is to be dealt with according to law there should be some authority that determines what that law is, but it is difficult to take the next step in the argu ment that that authority must in all cases be the Supreme Court. There is nothing in the Constitution which prevents the Legislature from entrusting the final decision of any question of law to a Tribunal created by it. The position of the Supreme Court under the present Constitution is different from that which it had under the Constitution of 1956: Under that Constitution it exercised a supervisory jurisdiction over the administration of justice in the whole country for an appeal lay to it under Article 160 of that Constitution against the judgment of every Court or Tribunal. There was no limitation in Article 160 as to the grounds on which the Supreme Court could interfere and any injustice committed by any‑Court or Tribunal could be corrected. Now the position of the Supreme Court is only that of a Court which hears appeals from the judgments of the High Court. It should be pointed out in this connection that the law laid down by the Supreme Court is not even binding 'on judicial ‑or quasi- judicial Tribunals as distinguished from Courts. By Article 63 of the Constitution the law laid down by the Supreme Court is binding only on Courts and the word "Court" has been defined in the Constitution as a "Court of law".
If the argument of Mr. Manzur Qadir be correct it should follow that the citizen (or other person in Pakistan) should have the right to take every question of law decided by any Court or Tribunal to the Supreme Court for it is only then that, according to Mr. Manzur Qadir, he will be dealt with in accordance with law. But it is clear that‑there are many question of law which do not go to the Supreme Court. The validity of the proceedings of the Legislature cannot be determined by any Court as is provided by Article 111 of the Constitution. Validity of such proceedings is a question of law. Article 171 in respect of which there is a discussion later in this judgment provides for the "final" determination of all disputes relating to certain elections and referendum by the Election Commissioner or the Election Tribunal. Mr. Manzur Qadir is assuming that in respect of ordinary civil disputes all questions of law ultimately reach the Supreme Court. This is not correct. There are many orders of civil Courts, even final orders, where only a revision lies to the High Court. In revision questions of law decided with respect to the merits cannot be agitated. The Supreme Court is only concerned with the correctness of the decision of the High Court and if the High Court had no jurisdiction to interfere the Supreme Court too could have none. When an arbitrator decides a question of law wrongly the award cannot be set aside unless the error of law be "patent on the record".
This disposes of the argument based on Article 2. The last contention of Mr. Manzur Qadir is that the High Court has been correcting errors of law of judicial tribunals like the Settlement and Rehabilitation Authorities, the Custodian, the Collector of Customs, etc. under Article 98. On a superficial glance this may appear to be correct at least with regard to the Settlement and Rehabilitation Authorities but this is, truly speaking only a mis apprehension. Let me take the case of Settlement Authorities and the rest will then become clear. Our interpretation of the Displaced Persons (Compensation and Rehabilitation) Act is that the Schedule to this Act gives an indefeasible right to certain persons in respect of transfer of property. The function of the Settlement Authorities is to transfer property to those entitled to it by virtue of the Schedule. While, determining entitlement the Settlement Authorities have to determine certain questions of fact and in this respect they act judicially. The power of division of houses and certain other powers too having been granted to them which too they exercise judicially. But they are not entitled to refuse to transfer property by a misinterpretation of the provisions which create the right to a transfer. They do not determine judicially the interpretation of the provisions which create rights to a transfer though they have as administrative officers, to find out who is entitled to a transfer. The mere fact that an office has to find out before he acts whether certain facts exist does not make that officer a judicial tribunal for determination of such facts. All administrative officers have, before they act, to find out whether circumstances which entitle them to act do exist. U The Legislature has not entrusted to the Settlement Authorities the function of construing the law with respect to transfers. If on the facts found by them a person be under the law entitled to transfer they have no power to refuse a transfer and in such cases a mandamus and not certiorari would have been the remedy if jurisdiction had been conferred in terms of English writs. Under para. (i) of clause (a) of Article 98(2) the High Court can direct them to transfer property in a case where requisite facts are admitted by the Settlement Authorities to exist. So far as facts which are the basis of entitlement of a person are concerned the Settlement Authorities act as judicial tribunals and the same is the position with respect to some other powers which they exercise. Their acts as judicial tribunals can be interfered with only on grounds applicable to judicial tribunals. Similar is the position with respect to orders of Rehabilitation authorities under the Rehabilitation Settlement Scheme. The scheme grants rights which cannot be taken away by Rehabilitation authorities by a misinterpretation of the Rehabilitation Act or the Scheme. The determination of the Rehabilitation authorities on facts however (while acting under the Scheme) are interfered with only on grounds applicable to judicial tribunals. It will be observed that while discussing the question as to whether errors of law on the merits were within Article 98. I have only been interpreting the words "without lawful authority" occurring in para. (ii) and have not referred to the words "is of no legal effect". That these words would be altogether inapplicable to an error of law on merits is clear from the foregoing discussion and no more need be said about it. So far as para. (i) is concerned it is obvious that under this para. the High Court can direct the tribunal to decide a matter it has not decided, but it cannot direct the Tribunal to decide it in a particular manner.
I have discussed the contention of Mr. Manzur Qadir as to the interpretation of Article 98 in full. It should be pointed out however that before the High Court it does not appear to have been argued that an error of law on the face of the record could attract certiorari jurisdiction. According to the learned Judges of the High Court certiorari jurisdiction was to be exercised only in case the error related to exercise of jurisdiction and they interfered with the order . of the learned Member Election Commission on the sole ground that he had failed to exercise jurisdiction vested in him because he refused to determine whether the ballot papers were valid. While I would not be prepared to accept that the High Court has jurisdiction under Article 98 to correct all errors of law relating to the merits of a dispute before a Tribunal I should not be understood as holding that a failure on the part of the Tribunal to properly apply its mind to a question of law arising before it is beyond the scope of Article 98. There may be error apparent on the face of the record which may be due to an oversight; or the tribunal may not Y have properly applied its mind to an aspect of the matter before it. There is a duty cast on every judicial tribunal to properly apply its mind to questions of fact and of law. If there be any failure in the proper application of the mind the High Court can always quash the order and direct that the case be decided afresh in accordance with law. The High Court cannot however itself determine the merits of a dispute before the Tribunal. That has to be done by the Tribunal.
Having dealt with the general argument of Mr. Manzur Qadir on the interpretation of Article 98 I turn to the specific argument put forward by him to which I have already referred. That argument put briefly is that if on a correct interpretation of law the disputed ballot papers should have been rejected then the learned Member, Election Commission, has in accepting them acted without lawful authority. This argument suggests that the learned Member has committed an illegality in the exercise of his jurisdiction for he has acted contrary to what the law directed him to do. The answer to this argument is furnished by asking the question: Was the acceptance of the ballot papers the result of a determination of the dispute before, the learned Member on its merits If the decision of he question of rejection or acceptance of ballot papers was a decision on the merits of a dispute which the learned Member had jurisdiction to decide his erroneous decision on that question will not be an illegal exercise of jurisdiction and his act which is a consequence of that decision would also not be liable to challenge. There can be little doubt that in accepting the ballot papers the learned Member was deciding the merits of a dispute which was validly before him. The fallacy in the argument of Mr. Manzur Qadir can be demonstrated by referring to an ordinary civil suit. Suppose a civil Court grants a decree to the plaintiff in a suit for inheritance on a misinterpretation of the law of inheritance. The defendant cannot urge that this is an1w illegal exercise of jurisdiction because the Court has granted the property in dispute to the plaintiff who was not entitled to it. There is just an erroneous decision on the merits which has resulted in a decree. The decision though erroneous is ‑with lawful authority for the Court had jurisdiction to decide the question of law rightly or wrongly.
So even on the wording of Article 98 and quite apart from Article 171 the High Court would not have jurisdiction to interfere with the decision of the learned Member and I proceed now to consider the effect of Article 171. The effect of this Article is that all disputes arising out of elections which are held under the Constitution are to be finally determined by the Commission or Election Commissioner and an election tribunal, a law has to be enacted for this purpose, and the disputes are to be decided only in accordance with that law. The Article itself divides the disputes into two categories, that is (1) disputes relating to counting; (2) other disputes, and provides that disputes X relating to counting are to be decided by the Commission or the Election Commissioner and other disputes by the election tribunal. The National and Provincial Assemblies Act is the law which has been enacted by virtue of the power granted Article 171. Section 53 of this Act provides for an appeal to the Election Commissioner against the order of the Returning Officer if there be a dispute as to counting. With respect to all other disputes there has to be an election petition before the election tribunal. According to section 112 of the Act the legality of anything done by the Election Com missioner is not liable to be challenged. The jurisdiction to hear appeals has been delegated to a member of the Election Commission.
Of course Article 171 does not destroy the jurisdiction of the High Court under Article 98. Article 171 provides for the decision 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 irregular:.; in its exercise, the High Court can pass an appropriate order. I have already explained that there is a duty cast on every judicial tribunal to apply its mind property to all aspects of the disputes which it is this respect will attract the jurisdiction of the high court under article 98.however so far as the merits of the election disputes are concerned they are, in the words of Article 171, to be "finally determined" by the authorities mentioned therein and even if an error of law on the merits had been within the scope of Article 98, Article 171 would have been a bar to the High Court interfering on this ground. All questions of law which have to be decided for determination of the election disputes must be decided and finally decided only by the authorities mentioned in Article 171. The dispute in the present case was whether the ballot paper should be rejected or accepted and it was for the learned Member to determine this dispute finally.
There was some argument at the bar as to the meaning of the word final'. In some contexts the word final' may only mean that it was not open to appeal, revision, etc., but when the Constitution says that a law should be enacted by which certain disputes are to be finally determined, I am unable to see what other intention can be imputed to the framer of the Constitution except that the determination under that law was not, liable to be challenged. Article 171 in fact does not stop here and further provides that the disputes are to be decided only under that law. There is little room therefore for an interpretation that the decision of a dispute by the Election Commission can be interfered with on the ground that it is erroneous whether the error be one of law or fact.
I will consider next the effect of section 112 of the National and Provincial Assemblies Election Act a section in accordance with which the legality of an order of the Election Commission cannot be challenged at all. I find this provision to be ultra vines on two grounds. The first is that it is not within the power granted to the Legislature by Article 171 and being admittedly the law which is referred to in Article 171the power of the Legislature to enact it is to be judged only by that Article. Article 171 empowers the Legislature only to enact a law for the final determination of disputes. This power does not include a power to enact that the acts of some authority created by that law need not be in accordance with law. The power given is to enact a law and not to validate lawlessness which is a much different and wider power. Also there is nothing in Article 171 which pointy to the conclusion that the intention was to oust the jurisdiction of the High Court under Article 98 except to the extent that the determination of an election dispute in accordance with law way not to be interfered with. The High Court could in spite of Article 171 ensure that election disputes are decided in accordance with law. Section 112 would prevent the High Court from exercising its jurisdiction under Article 98 though the Election Commission failed to exercise the jurisdiction vested in it or exceeded that jurisdiction or acted illegally in the exercise of jurisdiction. That was not the intention of Article 171 when it provided for the enactment of a law for the determination of election disputes.
The second reason why I regard section 112 as beyond the power of the Legislature is perhaps more important. I have already stated during the discussion of Article 2 of the Constitution that it debars the Legislature from creating an authority whose acts Are not to be judged by law. The effect of this Article is that all action is to be judged by some law. The Legislature cannot enact a law that the acts of any person or a particular category of acts shall not be judged by law at all, I and this is precisely what section 112 provides. Of course Article 2 does not prevent the Legislature from enacting that the decision of a judicial tribunal which tribunal is itself deciding legal rights and liabilities shall not be called in question, but that is something entirely different from saying that in certain respects an officer or authority shall be above the law.
With the question of the interpretation of the provision as to rejection of ballot papers I might have dealt in the beginning, but. I thought I should deal with the question of jurisdiction first. This interpretation is a matter of some difficulty and provides an interesting logical exercise. In accordance with section 38(2)(b) a ballot paper is to be rejected if it bears "any mark by which the; elector can be identified". In what circumstances a mark (I will be referring only to deliberate and not accidental marks) will invalidate a ballot paper depends on an interpretation of the words "can be identified". These words are capable of two meanings:‑
(1) that a candidate or some other person concerned with the election is in fact able to identify the elector on account of this mark;
(2) that (although the elector may not be in fact identified) the mark is of a kind which if permitted can be used as an identifying device.
Now let us accept first interpretation and see whether on this interpretation a ballot paper can ever be rejected. It should be remembered that ballot papers are to be examined in the first instance by the Presiding Officer and then by the Returning Officer and both have to exclude from the count any mark by which the voter "can be identified". Now neither the Presiding Officer nor the Returning Officer is to record any evidence before he acts. They have just to decide by a look at the ballot paper whether it bears a mark by which the elector "can be identified". If the interpretation of these words be that some person .is in fact able to identify the elector can the Presiding Officer or the Returning Officer come to a conclusion by a mere look at the ballot paper that some person is in fact able to identify this elector To take the first step in the argument is the Presiding Officer or the Returning Officer himself able to identify the elector The answer is obviously in the negative. Even if there appears a name on the ballot paper bow can the Returning Officer (or the Presiding Officer) be sure that the elector has written his own name. The second step is: if he is unable to identify the elector can anyone else who has no more information than the Returning Officer do so The answer again is in the negative. So it is only a person who possesses additional information as to this mark as will be able to do so. This Jamal shah additional information will be information by the elector himself) Election to some person either before he has made the mark that he is Commission going to make such a mark, or after he has made a mark that he has made one. If the Returning Officer is to reach a conclusion that some person is in fact able to identify the elector he can do so only if he reached the conclusion that there is in existence a person who possesses information from the elector that he is going to or has made such a mark.
So we come to this clear position; unless the Returning officer can reach a conclusion that the elector has either before after making the mark given information about it to some person, the Returning Officer cannot (on this interpretation of the words can be identified") reject a ballot paper. Now is it possible for the Returning Officer to infer from the mere existence of a mark on the ballot paper, (whatever the nature of the mark may be) that the elector has disclosed it to some person Is it necessary that he made it with the intention of disclosing his identity to some person at all The elector may be in habit of putting 786 or bismillah, or any other mark on everything that he writes, his spiritual preceptor may have told him to put a mark. on his writings, he may belong to an association who consistently use a particular mark, he may do it deliberately in an effort to invalidate his ballot paper (being otherwise bound by an oath to put the "prescribed mark" in favour of a particular candidate) he may put a mark because he is crazy or he may do it just for fun in order to see what proceedings arise out of his ballot paper (if in the present case the currency notes were put in by the electors for fun they have had lot of fun). I mean there can be many explanations for the putting of a mark besides the one thatit was put for the purpose of disclosing identity. If then by simply looking at the paper the Returning Officer is unable to reach a conclusion that the elector has disclosed the mark to any person the result would be that the Returning Officer is never able to reject a ballot paper. I want to emphasize here that whatever the nature of the mark that exists on the paper this result will follow. It cannot be said that from some particular kind of mark the Returning Officer would be able to infer the intention to disclose his identity on the part of the elector. It was suggested that if there were a number of marks, and particularly if they were similar marks it may be possible to infer that they were made with the intention of disclosing identity. But even a number of marks may be made not for disclosing identity, but for other reasons referred to above and in the very case with which we are dealing a large number of marks, and some of the same kind were not regarded sufficient, (in the absence of further evidence) for excluding the ballot papers. The present case provides in fact a strong argument against the proposition that the mere existence of a mark on the ballot paper will be sufficient for inferring that on account of this mark he elector has in fact been identified by some person. In the, present case there were twelve ballot papers which bore the word. "bismillah," 12 ballot papers which contained one rupee currency, notes and one paper containing half of a five‑rupee currency note. In the annals of election cases it will be difficult to discover 1 case which afforded better grounds for an inference that marks were made in consequence of some arrangement between the candidate and the elector. (The half of five‑rupees currency note deserves special mention in this respect). Yet the Presiding Officer, the Returning Officer, and the learned Member, Election Commission, were agreed in not excluding the ballot papers containing "bismillah" and the learned Member has not found it possible to hold even in respect of currency notes that they have been put in the ballot papers in consequence of an arrangement. If in a case like the present this inference is not possible, it is not easy to imagine in what case it will be possible. The result is that a mere look at the ballot paper will never be sufficient for rejecting it and as the Presiding Officer and the Returning Officer are to decide the question of exclusion of a ballot paper without taking evidence and simply by a look at the ballot paper they will never be able to reject a ballot paper and the relevant portion of sections 36 and 38 will become a dead letter. The Member, Election Commission, will not be able to interfere for in accordance with Article 171 he decides a dispute which has arisen, that dispute being that according to one party the Returning Officer should have excluded certain ballot papers and according to the other party he should not have excluded these papers. The Member, Election Commission, when he hears the appeal is only concerned with the correctness of the order of the Returning Officer. If the Returning Officer was not entitled to exclude the ballot papers and he did not exclude them the Member cannot exclude them by taking further evidence. My Lord the Chief Justice is of the opinion that he could not take evidence as to previous arrangement at all because such arrangement would lead to an inference of corrupt practice. While I am not, with great respect, agreeing in this view, it is clear that on either view the Member, Election Commission, will have to dismiss the appeal against the order of the Returning Officer to exclude the ballot] papers.
There are further difficulties in the way of the acceptance of this interpretation. Suppose a candidate enters into an arrangement with a hundred persons that they will put one‑rupee notes in their ballot papers, but on a count only ten ballot papers contain currency notes. Can any of these ballot papers, be rejected The candidate does not know who are the ten who have voted in his favour. It may be argued: at least he knows that ten out of that hundred have voted in his favour. But that is wholly insufficient for rejecting a ballot paper. It is only if "the elector" can be identified that a ballot paper can be rejected. That means that the particular elector who has marked the ballot paper should be identified.
I could point out further difficulties, but I do not think it is necessary. The upshot of the above discussion is that if we adopt the first of the two interpretations stated above neither the Returning Officer nor the Member, Election Commission, will be able to reject any ballot paper on the ground that it bears a mark by which "the elector can be identified". The result will be that there will be a licence to all concerned to freely use marks for the purpose of identification of voters. Secrecy of the ballot will come to an end and bargaining about votes will be easy. He who is able to exert undue influence on a voter will have ample means to ensure that the‑ vote is cast in accordance with his directions. This is a matter of vital importance for the country and if the second of the two interpretations stated above is not accepted the only proper course for the Government will be to secure an amendment of the .law.
If the first interpretation be wholly unacceptable then the second should be adopted as long as it is a possible interpretation, but it is not only a possible interpretation, it is a reasonable one. It invalidates all ballot papers which bear such marks as can be used for identification. It provides a simple rule and creates no difficulty in the way of the Presiding Officers and Returning Officers. An elector is to make only one mark on the ballot paper that is the mark for indicating the candidate for whom he l is voting and if any other mark which he makes in spite of the knowledge that he is to make only one mark invalidates the l ballot paper he has no cause for grievance. The only objection taken to the second interpretation is that if this was the intention of the Legislature section 38 should have said that every mark will invalidate a ballot paper instead of saying "a mark by which the voter can be identified". The answer is that it is possible to concieve of a mark which may not be used as an identifying device. It may be too insignificant. It may be accidental. Or, the Legislature may have employed these words without coming to a conclusion whether there could or could not be marks which were incapable of use as identifying devices. The qualification of mark as a mark "by which the elector could be identified" is a proper one and what is being urged is that as all marks can be used for identification the qualification was unnecessary. This is not a serious objection particularly when the only other interpretation is an impossible one.
There was an argument as to whether the words "bear a mark" could include the case of an article being put in the fold of the ballot paper. If one looks to the word "bear" only it can be said that the ballot paper does bear the article. On the other hand the phrase "bear a mark" is one which is appropriate only1B for some mark made on the ballot paper. Arguments can be put forward both ways, but I would lean in favour of a liberal, construction because the spirit of the provision would include case where an article is put in the fold of the ballot paper.
However though I do not agree with the interpretation of the words "can be identified" by the learned Member, Elections Commission, I do not see how the High Court can interfere. c The makers of the Constitution have thought fit to entrust the c final determination of election disputes to the Election Commission and the Election Tribunal and it is for them to interpret the relevant provisions.
I will next take the question whether the learned Member, Election Commission, was justified, in refusing to go into the question of "previous arrangement" bsecause this involved an enquiry into some corrupt practice and such enquiry was within The jurisdiction of the Election Tribunal. I have in this connection to‑put forward three propositions:
(i) the existence of "previous arrangement" was not necessary, for finding that the elector could in fact be identified for there may have been just information after making the mark;
(ii) even a "previous arrangement" does not necessarily involve a corrupt practice;
(iii) even if a corrupt practice was involved the learned Member was not debarred from recording a finding as to whether the elector could be identified.
As regards the first proposition it should be clear that an elector may not enter into any arrangement with the candidate or some other person and he may when casting his vote put a mark on the ballot paper with the object of disclosing his identity. He may then inform the candidate or some other person concerned that he had made mark of a particular kind. I do not see any insuperable obstacle to an elector behaving in this manner. He may want to assure the person for whom he is voting without any "previous arrangement" that he has in fact voted for him, though he did so of his own free will and without receiving any benefit.
So far as the second proposition is concerned it should in the first place be observed that "previous arrangement" can in this context mean no more than this that the elector has informed the candidate (or other person concerned) of his intention to make a particular mark for the purpose of disclosing his identity. It is not necessary in such a case that the elector should do it either under pressure or in lieu of some benefit. The elector may regard a candidate as the proper person to be elected and may vote for him freely and yet he may inform him before hand that he will make a mark on his ballot paper to show that he has voted for him. I see no difficulty in finding that an elector may, although no corrupt practice is involved, give information before hand of his intention to make a particular mark. I take up the third proposition. My Lord the Chief Justice has held that "upon it appearing to an authority under section 38 or section 53 that a matter raised before him necessarily carries with it the implication of corrupt or illegal practice having been performed it is the duty of such authority to refrain from entering that question and to leave the matter in such a state that the question can properly be raised before the competent authority"., With great respect to my Lord I am unable to concur for I know of no principle on which a tribunal having jurisdiction to decide a particular matter (and in fact being the only tribunal to decide that matter) can refuse to decide that matter because in doing so it will be believing evidence which if true raises a ground for decision before another tribunal. The grounds of attack upon an election have been divided between two authorities. Neither is subordinate to the other each has exclusive jurisdiction in the matter entrusted to it and each is by law bound to decide that matter. '' Can either of these refuse jurisdiction because its decision involves acceptance of evidence relating to a ground cognizable by the other. There is no provision which says so. The implication of sections 52 and 53 is that the questions raised and which can legally be raised with respect to counting must be decided by the Member. There is no provision like section 34 of the Administration of Evacuee Property Act saying that if evidence led also involve a corrupt practice the Member should stay his hands and refer the case to the Election Tribunal. It should be realized that neither authority is subordinate to the other and if the Member is bound to stay his hands if the evidence before him discloses a corrupt practice then the Election Tribunal should also stay its hands if the evidence before it disclose that the ballot paper bore a mark by which the elector could be identified. The Member cannot give a finding on the question of corrupt practice. He is only concerned with whether there was a mark by which the elector could be identified. If he believes the evidence and excludes the ballot paper the Election Tribunal is not bound by that finding. In fact it cannot take the finding into consideration and must decide the question of corrupt practice itself. It may disbelieve evidence believed by the Member. Similarly the finding of the Election Tribunal will not bind the Member. Suppose an election petition as well as an appeal are pending and the allegation in both is that the candidate personally paid money to an elector who in consequence made a mark on his ballot paper for identification, and suppose the defence is that the candidate was i America on the date on which he is alleged to have paid the money. If the Election Tribunal finds that the candidate was in fact in America on the relevant date is the Member bound by their finding He is not bound and must record his own finding otherwise he fails to exercise jurisdiction. Each of the two authorities is bound "finally to determine" the dispute referred to it. It is only if the authority itself decides the dispute that it is "finally determined". The jurisdiction of the two are separate and neither is affected on account of an exercise of jurisdiction by the other.
Let me state the actual effect of the finding of the learned Member. A ballot paper can never be invalidated on the ground that it bears a mark by which the elector can be identified in the absence of proof of "previous arrangement" and previous arrangement can never be enquired into because it involves corrupt practice. The obvious result is that a ballot paper can never be rejected on the ground that it bears a mark by which the voter can be identified.
I will deal here with contention based on section 73 of the National and Provincial Assemblies Act that the jurisdiction of the Member, Election Commission, and the Election Tribunal as E to counting is mixed up. In section 73 there is a provision that E if on the conclusion of the trial the Election Tribunal finds that there is an equality of votes it will inform the Commissioner who will thereupon direct a fresh poll to be taken. From the fact that the Election Tribunal can find an equality of votes an inference was sought to be raised that the Election Tribunal also counts the votes. To me it appears clear that so far as the original counting is concerned the Member, Election Commission; has complete and uncontrolled jurisdiction but that votes may decrease on account of corrupt practices and that is a matter with in the jurisdiction of the Election Tribunal. The equality of votes referred to in section 73 is caused by the decrease of votes .by corrupt or illegal practice. That in the matter of counting of votes the Member has exclusive jurisdiction and the Election Tribunal has no jurisdiction is proved in the first instance by Article 171 and then by sections 52. and 53 of the National and Provincial Assemblies (Elections) Act. According to Article 171 the dispute about counting could be decided only by the Election Commissioner the Commission. Even if the National and Provincial Assemblies (Elections) Act had purported to grant any power to the Election Tribunal in the matter of counting of votes it could not do so and it would have been ultra vices to that extent. But this Act does not purport to do any such thing and in complete accord with Article 171 it lays down in sections 52 and 53 that the counting of votes is within the exclusive jurisdiction of the Member. After the appeal has been heard by the Member any dispute relating to counting, including a dispute as to whether any ballot paper "bears a mark by which the elector can be identified" stand finally determined. If the High Courts have no jurisdiction to interfere with that final determination the Election Tribunal to had no such jurisdiction. Of course,, counting has no reference to corrupt or illegal practice and any vote which becomes invalid on account of corrupt or illegal practice has to be excluded from the votes obtained by a candidate in accordance with the counting by the Returning Officer and the Member, Election Commission. That there can be votes which are rendered invalid on account of corrupt or illegal practice and the invalidity of which does not by itself invalidate the election has been the law of pre‑Partition India and continues to be the law of Pakistan. It may be proved that an elector received illegal gratification for casting his vote and ‑a person who saw the elector marking his vote in favour of a candidate may be produced as a witness. There may be no proof however that the person who paid money did so at the instance of the candidate. If the evidence is believed the vote has to be excluded from the votes of the candidate in whose favour this elector had cast his vote though the election is not invalidated because no connection between the candidate and the corrupt practice is proved. Or take a case where at a particular polling station only 15 persons cast votes and all in favour of one candidate. It is established by evidence that outside the polling station all the fifteen electors had been threatened with dire consequences if they did not vote in favour of that candidate. However, no connection between the person who threatened and the candidate is established. These fifteen votes have to be excluded.
The High Court had found the order of the learned Member to be "without lawful authority" on the sole ground that he had failed to determine the question whether the ballot papers should be rejected. This finding of failure to exercise jurisdiction was based on the observation of the learned Member that as the disputed ballot papers had not been kept separate by the Presiding Officer the Returning Officer was not in a position to reject ballot papers because he could only reject particular ballot papers and could not just deduct the number of those ballot papers from the total ballot papers of the respondent. Had the learned Member stopped at this observation a question as to whether there was failure to exercise jurisdiction may have arisen for decision. But the learned Member then assumed that he could decide the question of rejection and did actually decide it. Under the circumstances there was no failure to exercise jurisdiction.
respectfully agree with the conclusions reached by my Lord the Chief Justice and would like to add a few observations on the question of jurisdiction. Article 171, on which reliance is placed by the appellant in support of the plea for ouster of jurisdiction, is in two parts. 171(1) requires that a law shall be made for finally determining disputes concerning count of votes by the Commissioner or an Election Commission and for determination of all other disputes finally by an Election Tribunal. 171(ii) and (iii) provide that the election of a person to the office of the President and the formation of Electoral‑ Units for the Central and Provincial Legislatures and Special Zones for seats reserved for women by the Commissioner shall not be called in question in any manner before or by any Court or authority whatever. Act VII of 1964, which was passed in compliance with Article 171(1) provides a complete machinery for adjudication of disputes arising in connection with the counting of votes in the first instance by the Presiding and Returning Officers and finally on appeal by .the Commissioner or a Member of the Commission. The scope of an appeal under section 53 is limited to challenging the count by the Returning Officer. The Commissioner or the Member of the Commission may after giving the parties concerned an opportunity of being heard‑(a) dismiss the appeal or (b) if it is not so dismissed determine the result of the election on the count of valid votes so corrected and make such consequential orders as may be necessary. The provisions for making an election petition, the grounds on which the election of the returned candidate or the election as a whole may be set aside and the procedure for the trial of the petitions is contained in sections 59 to 79. Chapter VII deals with election offences, penalty and procedure. Corrupt practice' is defined in section 80, bribery' in section 82 and undue influence' in section 84. Lastly, section 112 provides that no Court shall question the legality of any action taken by or under the authority of the Commissioner, Commission, a Returning Officer, or Presiding Officer or any decision given by any one of them or by any other Officer or authority appointed under the Act and the Rules. The question which falls for determination is whether by virtue of the provisions of Article 171(1) and section 112 the jurisdiction of a High Court to interfere under Article 98 of the Constitution with election disputes is completely barred and if not what is the ambit of that jurisdiction:
In construing the finality clause in Article 171(1) a note should first be made that the 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 (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 proceedings 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 1170) 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 determinations of the authorities designated in it and provides an absolute bar to bringing 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 unfavorably with the unabridged jurisdiction conferred by Article 170 of the 1956 Constitution to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement fundamental rights and for any other purpose. The decisions given by Courts during the period the 1956 Constitution remained in force must, therefore, be distinguished on this ground revert to Article 98, it follows that the jurisdiction conferred by it on a High Court is limited in its ambit and the finality attached by Article 171(1) to the determination of the authority designated in it must be construed in this light. There are more than one other weighty considerations to be kept in view in this behalf. Firstly, according to the British notion which has prevailed in the Dominion and Colonies of the Empire, including this sub continent, the superior Legislatures are the arbiters of their own composition and any interference from outside is jealously guarded against. The Tribunal to whom the Legislature entrusts the determination of election disputes, therefore, acts as its agent and not as an independent authority or Court seized with supervisory jurisdiction in this fiel4. A fortiori the incident of an appeal, review or revision does not attach to the determinations of such a Tribunal unless the Legislature itself makes provision for it. Secondly, as a matter of public policy it is necessary that the formation of Legislatures should be completed and known a speedily as possible; an object which will be frustrated if election disputes are allowed to take the course of an ordinary law suit. Lastly, an election dispute concerns a right which is created statute and not a Common Law right such as the right to property. If, therefore, special machinery is provided in the statute for the enforcement of that right as is contained in Act VII of 1964, the aggrieved party has no cause of action to bring before. a civil Court.
To cite some of the authorities having bearing on the point, the first in chronological order is the case of Kennedy v. Purcell (1) ATLR664. Leave was sought in the case to appeal from the judgment of the Supreme Court of Canada in a matter arising out of a trial under the Controverted Elections Act on the ground that the questions decided were important questions of law affecting the construction of election statutes and there was a good ground for doubts as to the soundness of certain decisions. In delivering the judgment of the Board, Lord Hobhouse observed that: "the subject‑matter was not one with respect to which the prerogative of the State existed and if the prerogative did exist it was not proper to exercise it. In support of the first proposition, the case of Theberge v Laudry (2) (1875)2AC102 , was relied upon in which the decision of the Judicial Committee was not that the prerogative of the Crown was taken away by the general prohibition of appeal but that the whole scheme of handing over to Courts of law disputes which the Legislative Assembly had previously decided for itself showed no intention of creating Tribunals with the ordinary incident of an appeal to the Crown. The petitioner relied upon the case of Valin v. Langlois (3) (1875)2AC102 , in .which leave was asked for to appeal from the decision of the Supreme Court of Canada on the ground that the Controverted Elections Act, 1874, being a Dominion Act, was ultra vires of the Dominion in assuming to give to the Courts in Quebec jurisdiction over elections in Quebec to the Canadian House of Commons. The Judicial Committee held that there was no ground for any such contention and dismissed the petition saying that if they had doubted the soundness of the decision below they would have advised Her Majesty to grant leave to appeal. Their Lordships did not think that any useful or sub stantial distinction could be taken between the statutes which were respectively the subjects of discussion in Theberge v. Landry and Valin v. Langlois and those which were in question before them and proceeded to observe that "in all three cases there was the broad consideration of the inconvenience of the Crown interfering in election matters, and the unlikelihood that the Colonial Legislature should have intended any such result. In all three there was the creation of a special tribunal for the trial of petitions in the sense that the litigation was not left to follow the course of an ordinary law suit, but subjected to especial procedure and limitations of its own, and in all three there was the same expression of the intention to make the colonial decision "final". Their Lordships did not find it necessary to give any decision on the abstract question of the existence of the prerogative in the case because they were satisfied that if it existed it ought not to be exercised in the case before them. In conclusion it was said "that the statutes showed throughout a desire to have these matters decided quickly and it was most important that no longer time should elapse before the constitution of the body was known and yet if the Crown were to entertain appeals in such cases, the necessary delay attending such appeal; would greatly extend the time of uncertainty which the Legislature had striven to limit. Again, the intention to confine the decision locally within the colony itself was just as clear as was the intention to get it passed speedily, because it was expressed that the decision of the Supreme Court should be final. And it seemed to their Lordships that there were strong reasons why such matters should be decided within the colony and why the prerogative of the Crown should not, even if it legally could, be extended to matters over which it had no power, and with which it had no concern until the Legislative bodies chose to hand over to judicial functionaries that which was formerly settled by themselves."
The next case is from the Colony of Malta Lord Strickland v. Grima (1) (1930) A C 285 . The Malta Constitution Letters Patent, 1921, provided that all questions that may arise as to the right of any person to be or remain a Member of the Senate or the Legislative Assembly shall be referred to and decided by our Court of Appeal in Malta. That Court having held that the election of the appellants to the Senate was null and void and special leave to appeal to His Majesty in Council having been granted, the Judicial Committee held
That the intention of the above. Article of the Letters Patent was to designate the Court of Appeal a special tribunal finally to determine all questions of the nature stated without annexing to the jurisdiction the ordinary incident of an appeal to the Crown under the prerogative to admit an appeal; and accordingly that the appeal should be dismissed.
In construing Article 33, which is in the terms "all questions which may arise as to the right of any person to be or to remain a member of the Senate or the Legislative Assembly shall be referred to and decided by the Court of Appeal in Malta," their Lordships observed that these words ‑ appear to be clear and distinct. They direct that all questions touching the membership either of the Senate or Legislative Assembly created by the Letters Patent themselves shall "be referred to and decided" not by the First Hall of the Civil Court, or any Court of first instance, but by the Court of Appeal of Malta, the highest judicial tribunal of the Island. Even. if their Lordships had in this matter been without authority to guide them, they would have been led by the words themselves to the clear conclusion ‑that His Majesty had advisedly designated his Court of Appeal in Malta finally to determine all these questions. It appeared to their Lordships that the section being found in Letters Patent, in which His Majesty's own words are used, gains in this respect an added significance, the force of which ought to have full effect given to it. In construing the Order‑in‑Council it was observed:
The jurisdiction is extremely special: it is of a character that ought, as soon as possible, to become conclusive, in order that the Constitution of the Assembly may be distinctly and speedily known. There is another reason for finality in such a jurisdiction. It concerns what, according to British ideas, are normally the rights and privileges of the Assembly itself, always jealously maintained and guarded in complete independence of the Crown so far as they properly exist."
In support of the construction the following passage from the judgment of Lord Cairns in Theberge v. Laudry was cited:
"It would be a result somewhat surprising, and hardly in consonance with the general scheme of the Legislation, if, with regard to rights and privileges of this kind, it were to be found that in the last resort the determination of them no longer belonged to the Legislative Assembly, no longer belonged to the Superior Court which the Legislative Assembly had put in its place . . . . . their Lordships have to consider, not whether there are express words here taking away prerogative, but whether there ever was the intention of creating this Tribunal with the ordinary incident of an appeal to the Crown."
The next case is Edward Lionel Senanayake v. Hearth Mudiyanselage Navaratne L R 1956 A C 640. decided by the Judicial Committee on an appeal from the Supreme Court of Ceylon.. Section 81 of the Ceylon (Parliamentary Elections) Order‑in‑Council, 1946, made the determination of an election Judge of matters arising on an election petition final. The Parliamentary Elections (Amendment) Act No. 19 of 1948, repealed sections 81 and 82 of the Order‑in‑Council and substituted new sections which provided for an appeal to the Supreme Court on a question of law, the decision of that Court to be final and conclusive. On appeal from the decision of the Supreme Court, affirming a decision of the election Judge, on the ground that he had acted without jurisdiction since he had acceded to an application to amend the petition made out of time, the Judicial Committee held that having regard to the peculiar nature of the jurisdiction and the importance in the public interest of securing, at an early date, a final determination of the matters entrusted to the Tribunal,, the intention of the Order‑in‑Council, as amended by Act No. 19 of 1948, was clearly to create a tribunal without the ordinary incident of appeal to the Crown, and that, therefore, an appeal, even on the ground that the election Judge acted without jurisdiction, could not be entertained. In support of the appeal it was argued that excess of jurisdiction always lays a matter open to consideration by the Board unless it constitutes one of a very special class which the statute may authorise the tribunal to decide whether it has jurisdiction and reliance was placed on the following observations of Lord Esher in Reg v. Income‑tax Special Purposes Commissioners 21 Q B D 313 "It may in effect say that, if a certain state of facts exists and is shown' to such Tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the Tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or Won something more. When the Legislature are establishing such a Tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decisions, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the Tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction." Counsel for the appellant submitted that in determining into which class a particular Tribunal falls, Courts should lean against the second alternative since it might leave the subject at the mercy of an arbitrary tribunal without any right of appeal, to which their Lordships replied that they were satisfied that the election Judge, as established by the Order‑in‑Council, 1946, was a tribunal with a jurisdiction not only to determine finally the question whether the corrupt practices alleged in the petition had been committed, but also to determine finally whether, upon the true construction of the Order‑in‑Council, it was competent in the circumstances for the petitioner to maintain his amended petition. With reference to the earlier decisions of the Board in The berge v. Laudry, Strickland v. Grima and de Silva v. Attorney‑General (1), (1949) 50 Ceylon N L R 481 their Lordships observed that they do not desire to repeat what was said by their predecessors in the cases cited and "suffice it to say that, in their Lordships' opinion, the peculiar nature of jurisdiction and the importance in the public interest of securing at an early date a final determination of the matter and the representation in Parliament of the constituency affected, make it clear that it was not the intention of the Order‑in‑Council to create a Tribunal with the ordinary incident of an appeal to the Crown". The judgments cited above support the view that the finality clause in Article 171(1) is intended to protect the determinations of the authorities designated in it from being called in question before any Court or Tribunal or being subjected to judicial review by a High Court under Article 98 on grounds such as an error of law apparent on the face of the record'. In coming to a contrary conclusion, the learned Judges of the High Court have relied on the difference between sub‑clauses (a) and (b) of Article 171(1) and clauses (2) and (3) which, as brought out above, are to the effect that when a person has been elected as President the validity of the election and the validity of the formation of Electoral Units of the Provincial and Central Assemblies as well as special Zones for purposes of election to seats reserved for women by the Commissioner shall not be called in question in any manner before or by any Court or authority whatsoever. From this, it was concluded:
"There is no reason to suppose that although they wanted to exclude the Courts from exercising their constitutional jurisdiction under Article 98 in matters covered by Article 171(1) they did not use the words necessary for such an exclusion which have, in fact, been employed in the later part of this very Article in respect of matters which were intended to be placed beyond the reach of Courts. When the makers of the Constitution have used different expressions in different parts of the same Article the only inference that can be drawn is that different results were sought to be achieved."
Support for this proposition was found from the provisions of section 52 of Act VII of 1964, that the matters which can be raised in an appeal under section 53 shall not be raised by an election petition and vice versa "that is to say the orders passed by one cannot be interfered with by the order and are, therefore, final". Reliance was also placed on the rule6that the jurisdiction of a superior Court can be taken away by express words only and not impliedly. With due respect to the learned Judges, the rule has no application in the present case because, on the view expressed above, the superior Courts in this country, except for a short period when the 1956 Constitution remained in force, were never invested with the jurisdiction to interfere with election disputes. The distinction between sub‑clauses (a) and (b) of Article 171(1) and clauses (2) and (3), relied upon by the learned Judges of the High Court, is real but not with the effect which they have attached to it. Clauses (2) and (3) provide an absolute bar and the words "in any manner" and "Court or authority whatsoever" achieve this end, while under Article 171(1) the determinations of the initial authorities designated in it are subject to appeal in certain cases, and to the decisions of election tribunals in others made immune only from the incidence of the supervisory jurisdiction of a High Court under Article 98 of the Constitution. But if the authority refuses to exercise jurisdiction conferred on it by Act VII of 1964, or acts in clear violation of its mandatory provisions, the High Court may. direct the authority to do that which the law requires him to door refrain from doing that which the law does not permit him to do. The exercise of this power which is in the nature of issuing a writ of mandamus or prohibition is different from declaring an act done proceeding taken to be without lawful authority and of no legal G effect. An act done or proceeding taken would be with lawful G authority if the person performing the functions is invested with the necessary capacity and the conditions for the exercise of the authority are substantially complied with except where there be found disqualification by bias or fraud or malice which will be destructive of all power under law. The authorities designated in Article 171(1) are, thus, the final Judges of facts as well as of law, including the interpretation of law and, with due respect, it would be incorrect to say that their determinations are "without lawful authority" because the High Court does not agree with them. In this view, I would hold that on the facts of the instant case the High Court had no jurisdiction to interfere with the impugned order of the learned Member of the Commission.
A.H Appeal accepted
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