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Writ Petition No. 1151 of 1965, decided on 7th December 1966.
Enactment in obedience to Art. 171(1) (a) of Constitution of Pakistan (1962).
Administrative, judicial or quasi judicial bodies and Courts can delegate their functions to smaller bodies or persons.
Ss. 110 & 111 read with Constitution of Pakistan (1962), Arts. 164 & 171‑Delegation of functions by Election Commission and Chief Election Commissioner permissible‑Such delegation necessitated by vast complexity of problems involved in numerous elections to be held under Constitution.
There is no indication in Article 171 of the Constitution against the delegation of functions by the Election Commission to its members for disposal of the large amount of work, which the elections to the National and Provincial Assemblies must entail. On the other hand, when Article 171 directs the making of a law to determine the questions specified in its clauses (a) and (b) and Article 164 provides that elections required to be held under the Constitution shall subject to the Constitution be conducted and decided in such manner as may be provided by law, effect must be given to section 110 of the National and Provincial Assemblies (Elections) Act, 1964, which has been enacted as required by Article 171 of the Constitution. There is, therefore, constitutional backing available in support of section 110. This section not only allows delegation of the Commission's functions, but section 111 enables the Chief Election Commissioner to dele gate the powers to be exercised by any officer or other authority subordinate to him as may be specified by him. The vast com plexity of the problems involved in the numerous elections to be held under the Constitution, necessitates such delegation of functions, without which the elections could not be held and completed expeditiously.
Sutlej Cotton Mills Ltd. v. Industrial Court, West Pakistan, Lahore P L D 1966 S C 472 and Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore and others P L D 1966 S C 1 ref.
S. 5(1) read with S. 4‑Member of Assembly, cannot be divested of his privilege except by his own waiver Proceedings taken by Election Commissioner against Member during Session of Assembly in violation of S. 5(l)‑Held, not merely irregular but invalid.
When subsection (1) of section 5 does not permit the waiving of the privilege except by an application made in writing to the Commission, it follows that the intention of the law is to prohibit the taking of proceedings against any party by way of privilege granted to him by law, and it would be nullifying the privilege by treating it as a merely irregularity, which does not vitiate the proceedings, though taken against a clear prohibition. Since it involves divesting a Member of his privilege and the intention of subsection (1) is that he cannot be divested of it, except by his own waiving it in writing, the proceedings held in violation of it, must be held to be invalid. In order to divest a Member of his privilege it is thus necessary that there must be compliance with section 5(1), that is a waiving of his privilege by him in writing.
In order to divest a Member of his privilege it is thus necessary that there must be compliance with section 5(1), that is, a waiving of his privilege by him in writing.
The bar in the way of the Election Tribunal, the Commission or a Court in proceeding during the prohibited period with a matter against a Member of the House in subsection (1) of section 5, is in the nature of an order of stay of proceedings by operation of law, and if in spite of it, proceedings are held, they are no proceedings in the eye of law, for it is settled law that if proceedings are taken by an inferior Court in violation of a stay order made by a superior Court, the proceedings taken are null and void. The same conclusion is reached, if the Court takes for example the case of a decree passed against a member during the prohibited period. Will not a member be able to have it set aside as void, or obtain a declaration that the decree is a nullity
Provision of a statute whether "merely irregular" or "illegal"‑Question of some nicety --Difficult to lay down dividing line between two with any exactitude.
Sutlej Cotton Mills Ltd., v. Industrial Court, West Pakistan, Lahore P L D 1966 S C 472 and Mr. A. K. Fazlul Quader Chaudhury v. Syed Shah Nawaz and others P L D 1966 S C 105 ref.
Arts. 106 (1) & 219 (3)‑Elected candidate deemed to have entered upon office on day on which he takes oath‑Provincial Assembly of West Pakistan Act (XXXIII of 1964), S. 5(1).
Article 219(3) in general terms provides that where under the Constitution a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath.
It is well settled that before an elected or appointed member or an appointed official takes the oath of office, he does not hold the office, but is a member‑designate or a Judge‑designate, or a Secretary‑designate or whatever other office it may be. The privilege attaches to a Member of the House, and Article 106(1) makes it clear that a Member shall not take his seat in the Assembly until he takes the oath. It is when he has taken the oath that he takes a seat in the Assembly and becomes a Member thereof. He then enjoys the privilege of a member. There is no inconvenience, hardship or inconsistency caused by this interpreta tion, because the oath provided in Article 1060) for a successful candidate before he occupies the seat can be made at any time whether or not the Assembly is in session. Therefore, as soon as a Member is declared successful, he can take the oath which would entitle him to the privilege in subsection (1) of section 5.
M. A. Zullah for Petitioner.
Sh. Ghias Muhammad, Attorney‑General (on 11‑11‑66 only) with Ahmed Fazal and Anwar Ahmed Waraich for Respondents Nos. 1 and 2.
Khurshid Ahmad and Fazal Hussain for Respondent No. 3.
Dates of hearing : 11th, 15th and 16th November 1966.
This is a petition by Mian Muhammad Sharif under Article 98 of the Constitution of Islamic Republic of Pakistan, praying that the record of the case may be called for, and the order of the learned Member. Election Commission, Lahore, may be declared to be without lawful authority and of no effect against the petitioner, and the respondents be directed not to act upon the said order, and further to direct that the petitioner alone is the lawfully elected member of the Provincial Assembly from Constituency No. P. W. 79‑Lahore IV, in the election held to the Provincial Assembly under the National and Provincial Assemblies (Elections) Act, 1964, on the. 16th of May 1965.
2. Mian Muhammad Sharif petitioner and Mian Muhammad Shafi respondent No. 3 were contesting candidates in the election td the seat of the Provincial Assembly from Constituency No. P. W‑79‑Lahore IV. The election was held on the 16th of May 1965. At the initial count, the Presiding Officer declared that the petitioner had secured 148 votes and the respondent 150. He rejected 5 votes. Of the rejected votes, 2 were blank and two were marked in favour of both of the candidates and one is alleged to have a big cross mark against the name of the petitioner and a small insignificant mark against the name of respondent No. 3. The Returning Officer recounted the ballot papers on the 17th of May 1965. The petitioner and respondent No. 3 raised certain objections to the count by the Presiding Officer. The Returning Officer accepted the objections of the petitioner regarding six ballot papers of respondent No. 3 and excluded them from his count, thereby reducing the number of votes received by‑him to 144. Out of the ballot papers in favour of the petitioner, two ballot papers, which did not bear the prescribed mark, were declared invalid on the objection raised by respondent No. 3. Thus, the votes of the petitioner were reduced to 146, and as the respondent No. 3's valid votes were found to be 1.44, the petitioner was declared elected by a majority of two votes, and his name was gazetted by the Commission on the 23rd of May 1 965 amongst the candidates who were returned from the Provincial Constituencies. The respondent No. 3 then filed an appeal under section 53 of the National and Provincial Assemblies (Elections) Act (VII of 1964). The appeal was heard by Mr. Justice Sardar Muhammad Iqbal, a Judge of this Court as a Member of the Election Commission. On the 14th of June 1965, in the presence of the petitioner and respondent No. 3 the bag containing their packets was unsealed. He then proceeded to determine the question whether the ballot papers, which had been rejected for good reason. The 4 ballot papers of respondent No. 3 which were rejected by the Returning Officer on the ground that the electors did not place the prescribed mark in the appropriate chamber, were, found not to have the mark in the proper chamber, but as the learned member had held in the case of Mian Jamal Shah v. Nasrullah Khan (Appeal No. 2 of 1965) and in case of Hasham‑ud‑Din Ahmad v. Noor‑ul‑Amin (Appeal No. 3 of 1965 (East Pakistan) that the ballot papers could not be rejected for this reason, he set aside the decision of the Returning officer, and held that the 4 ballot papers were valid, and counted them in favour of respondent No. 3. He overruled the objections in respect of the other ballot papers of respondent No. 3. Thus, the valid ballot papers polled in favour of respondent No. 3 came to 148. From the ballot papers in favour of the petitioner, he found that the ballot paper marked K/A/8 bad the official seal, but not the signatures of the Presiding Officer, and in view of the decision of the Full Bench of this Court in the case of Mian Jamal Shah declared it to be invalid and liable to rejection under section 38 (2) (a) of the Electoral College Act, but the decision was made subject to the condition that if the Supreme Court before which Court an appeal was pending, found that the ballot paper was not liable to rejection if it contained the seal, but not the initials of the Presiding Officer, then in that case the ballot paper will be counted in favour of Mian Muhammad Sharif. No objection was accepted against any other ballot paper. The petitioner's valid ballot papers were, therefore, reduced to 145 as against 148 found to have been polled by respondent No. 3, who was in consequence declared elected from the Constituency. His name was notified by the Commission on the 23rd of May 1965 amongst the candidates who had been returned from the Provincial Constituencies. The petitioner has challenged the order of the learned Member of the Commission on the following two main grounds:-----
(1) That the learned Member, Mr. Justice Sardar Muhammad Iqbal, was not competent to decide the appeal, which should have been decided by the Election Commission as a whole.
(2) That the proceedings before Mr. Justice Sardar Muhammad Iqbal in the appeal, and the order of the 14th of June 1965 were null and void, and were vitiated by reason of violation of section 5 of the Provincial Assembly of West Pakistan Privileges Act (XXXIII of 1964).
3. Regarding the first contention, the main reliance of the learned counsel for the petitioner is on Articles 171, 147 and 153(2) and (3) of the Constitution. Article 1.47 enacts that there shall be a Chief Election Commissioner referred to in this part as the Commissioner, who shall have such powers and functions as are conferred on him by the Constitution and law, and its sub Article (2) provides that the Commissioner shall have such powers and functions as are conferred on him by the Constitution. Under sub‑Article (2) of Article 153, an Election Commission shall consist of the Commissioner as the Chairman of the Commission, and a Judge each from the High Courts of East and West Pakistan. Article 171(1)(a) directs that provision may be made by law for disputes arising in connection with the counting of votes at an election or referendum required to be held under the Constitution to be finally determined by the Commissioner or an Election Commission. In obedience to this provision in the Constitution, the National and Provincial Assemblies (Elections) Act (VII of 1964) was enacted. Section 53(1) of this Act provided for an appeal under section 38 to the Commissioner. By the National and Provincial Assemblies (Elections) (Second Amendment) Ordinance IV of 1965, the word "Commissioner" was replaced by the word "Commission" on the 18th of February 1965. Therefore, an appeal against the proceedings as to count under section 38 of this Act lay henceforth to the Election Com mission. Section 110 of the same Act provides that the Commission may authorise the Commissioner or any member of the Commission to exercise and perform all or any of its powers or functions under this Act. This section enables delegation by the Commission of its powers. This is a delega tion by law, which it is contended, is opposed to the intention of the Constitution.
4. In referring us to Articles 147, 153(2) and 171(1)(a) it was contended that the Constitution contemplates a Chief Election Commissioner and a Commission, presided over by the Chief Election Commissioner, but did not intend a member of the Commission acting as a delegatee of the Commission. It was argued that when the Constitution provides for delegation of functions in the Central field under Articles 32, 33 and 35, and in the Provincial field under Articles 81, 82 and 84, and the delega tion of functions by the Central Government to the Provincial Government under Article 143, there should have been specific provision in the Constitution for delegation of functions to enable a delegation of the functions of the Election Commission to one of its members. By analogy, we were referred to Articles 128 and 180 of the Constitution, directing that there shall be a Supreme Judicial Council of Pakistan and Central Public Service Commission and a Provincial Public Service Commission for each Province, and Article 144, providing that the President may, from time to time, constitute a National Finance Commission for the purpose of clause (4) of the Article. It was argued that these bodies could not delegate their functions and had to perform their duties as a body. In the case of Supreme Judicial Council of Pakistan since Article 128(3) of the Constitution is a provision for automatic filling of a vacancy in the Council in case a member is unable to attend, there is an indication of an intention of the Constitution that the Supreme Judicial Council as a whole. No such inference can, however be drawn in the case of the Central Public Service Commission, the Provincial Public Service Commissions or the National Finance Commission: Delegations of its functions by administrative, judicial or guasi judicial bodies, and Courts, which have to deal with a large amount of work to smaller bodies or persons is forced by necessity, and has been fully recognised as a legal method of disposal of their functions. It cannot be imagined that the Judges of the High Court must sit together and cannot divide them selves into Benches to decide a cause before it. The same is e the position of the Supreme Court of Pakistan and the Board of Revenue. We are unable to see any indication in Article 171 of the Constitution against the delegation of functions by the Election Commission to its members for disposal of the large amount of work, which the elections to the National and Provin cial Assemblies must entail. On the other hand, when Article 171 directs the making of a law to determine the questions specified in its clauses (a) and (b) and Article 164 provides that election required to be held under the Constitution shall subject to the Constitution be conducted and decided in such manner as may be provided bylaw, effect must be given to section 110 of the National and Provincial Assemblies (Elections) Act, 1964, which has been enacted as required by Article 171 of the Constitution. There is, therefore, constitutional backing available in support of section 110. This section not only allows delegation of the Commission's functions, but section 111 enables the Chief Election Commissioner to delegate his powers to be exercised by any officer or other authority su4ordinate to him as may be specified by him. The vast complexity of the problems involved in the numerous elections to be held under the Constitution, necessitates such delegation of functions, without which the elections could not be held and completed expeditiously.
5. Our attention was also drawn to the observations of Hamood‑ur‑Rahman, J. in Sutlej Cotton Mills Ltd. v. Industrial Court, West Pakistan, Lahore (P L D 1966 S C 472) at p. 478 in which case, it was held that the procedure adopted by the Industrial Court in not recording the evidence in the presence of all the members was highly irregular, but as the irregularity had not prejudiced any party, the award was not vitiated, that where a Court consists of more than one person, all persons of the Court should normally sit together or at least a majority of the Court should be present at all stages of the hearing of the dispute and participate in its adjudication, but these observations are not attracted to the present case in view of the clear delegation in section 110 of Act VII of 1964.
6. Support was also sought from the decisions that the Rent Controller under the West Pakistan Urban Rent Restriction Ordinance VI of 1959, is a persona designata, but these decisions have no relevance to the question before us. The reliance of the learned counsel for the petitioner on the observations of Kaikaus, J. in Mian Jamal Shah v. The Member, Election Commission, Govern ment of Pakistan, Lahore, and others (P L D 1966 S C 1) that implied contraven tion of the Constitution should be guarded against, is also not of any substance in this case, because as we have indicated, there is no express or implied prohibition in Article 171 or other provisions in the Constitution against delegation by the Election Commission of its functions to one of its members. It is, therefore, unnecessary to mention the contentions raised with regard to the conditions or circumstances or manner of delegation, or the effect of a law being opposed to the Constitution, about which there can be no two opinions. We see no force in the first contention.
7. The second contention is based on section 5 (1) of the Provincial Assembly of West Pakistan Privileges Act (XXXIII of 1964), which it would be advantageous to reproduce here:‑
"(1). Notwithstanding anything to the contrary contained in any law in force for the time being, no Civil or Revenue Court and no Commission or Election Tribunal shall proceed during a session of the Assembly and for a period of fourteen days before and fourteen days after the session, with any matter before it in which a Member is a party, unless the privilege conferred by section 4 is waived, by application made in writing to the Court, Commission or Tribunal, as the case may be, by the Member concerned with the matter and where more Members than one are so concerned by all of them.
It is by way of privilege of a member of the House that this section prohibits the Election Commission to proceed notwith standing anything contained in any other law for the time being is force, with any matter in which a member is a party during the session of the Assembly or for a period of fourteen days before and after the session, unless the privilege is waived in writing. In the present case, the session of the Provincial Assembly was scheduled to be held from the 9th of June 1965. Notice of the date of hearing of the appeal on the 29th of May 1965 was sent to the parties to the appeal on the 24th of May 1965. On the 2nd of June 1965, notice was sent to Sheikh Bashir Ahmad, learned counsel for the petitioner, that the appeal would be heard on the 5th of June 1965. On the 8th of June 1965, there was a preliminary hearing of the appeal at which Sheikh Bashir Ahmad appeared for the petitioner, who did not himself attend the hearing. Mr. Manzur Qadir, learned counsel for the respondent herein, made an oral application before the learned Member that the petitioner be restrained from taking an oath as a member of the Provincial Assembly. Sheikh Bashir Ahmad objected to the grant of the stay order. The learned Member then heard arguments and finally Sheikh Bashir Ahmad made a statement before the learned Member that his client Mian Muhammad Sharif undertook that he will not take an oath as a Member of the Provincial Assembly, pending the decision of the appeal. In view of this undertaking the learned Member directed that Mian Muhammad Sharif will not take any oath. The hearing of the appeal and of the objections to the ballot papers by the learned Member took place on the 14th of June 1965, when the petitioner appeared on his own with his learned counsel Sheikh Bashir Ahmad. The learned Member then proceeded to declare the respondent elected on the basis of the count of votes. The proceedings before the learned Member were, therefore, held within the period specified in subsection (1) of section 5, during which proceedings could not be held by the Election Commission against a member. Two questions, therefore, arise for deter mination, firstly, whether the petitioner was a member of the Provincial Assembly as contemplated by section 5(1) of the Act which entitled him to the privilege, and, secondly, whether proceedings held in contravention of subsection (1) of section 5 are invalid or merely irregular, and need not be set aside unless prejudice is shown.
8. The second question may be dealt with first. If the proceedings held in contravention of subsection (1) of section 5 are merely irregular, then as observed by Hamood‑ur‑Rahman, J. in Sullej Cotton Mills Ltd. v. Industrial Court, West Pakistan, Lahore prejudice must be shown for the proceedings to be vitiated. In that case, although the proceedings were highly irregular, for the evidence was not recorded in the presence of all the members of the Industrial Court, the award was not held to be vitiated because the irregularity had not prejudiced any party. The question whether a violation of a provision of a statute is merely irregular or illegal, is one of some nicety and it is difficult to lay down a dividing line between the two with any exactitude, but what we are concerned with here is not so much an irregularity or an illegality, but a breach of a privilege of a member of the House. When subsection (1) of section 5 does not permit the waiving of the privilege except by an application made in writing to the Commission, it follows that the intention of the law is to prohibit the taking of proceedings against any party by way of privilege granted to him by law, and it would be nullifying the E privilege by treating it as a merely irregularity, which does not vitiate the proceedings, though taken against a clear prohibition. Since it involves divesting a member of his privilege and the intention pf subsection (1) is that he cannot be divested of it, except by his own waiving it in writing, the proceedings held in violation of it, must in our view, be held to be invalid. The, learned Judges of the Supreme Court in the context of resigna tion by a member of a House observed in Mr. A. K. Fazalul Quader Chaudhury v. Syed Shah Nawaz and others (P L D 1966 S C 105) at p. 110 as follows:‑--
"It is, therefore, difficult to sustain the argument raised by Dr. Nasim Hassan Shah, on behalf of the appellant, that there was substantial compliance with this provision of the Con stitution. It is hardly possible to spell out an intention from the wording of the letter itself that it was to be passed on to the Speaker of the Assembly. We are dealing in this case with the action of a member of an Assembly divesting himself of his status as such Member, by voluntary and unilateral action. All the formalities prescribed by clause (a) of Article 107 should be fulfilled before the grave result of vacation of a Member's seat should follow such action."
In order to divest a member of his privilege it is thus necessary that there must be compliance with section 5(1), that is, a waiving of his privilege by him in writing.
9. The bar in the way of the Election Tribunal, the Commission or a Court in proceeding during the prohibited period with a matter against a Member of the House in subsection (1) of section 5, is in the nature of an order of stay of proceedings by operations of law, and if in spite of it, proceedings are held, they are no proceedings in the eye of law, for it is settled law that if G proceedings are taken by an inferior Court in violation of a stay order made by a superior Court, the proceedings taken are null and void. The same conclusion is reached, if we take for example the case of a decree passed against a member during the prohibited period. Will not a member be able to have it set aside as void, or obtain a declaration that the decree is a nullity We are, therefore, inclined to hold that if the petitioner was a Member of the Provincial Assembly, then the proceedings of the learned Member were null and void, although he raised no objection to the taking of the proceedings, and though he was present before the learned Member on the 14th of June 1965, and on his behalf an undertaking was given on the 8th of June 1965 that he will not take an oath as a member.
10. On the first question there is little doubt that the petitioner not yet having taken the oath of office as contemplated by Article 106(1) of the Constitution, bad not become a member of the Provincial Assembly, which entitled him to the privilege in subsection (1) of section 5. Article 219(3) in general terms pro‑vides that where under the Constitution a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath. Article 106(1), in particular, provides that a person elected as a member of an Assembly shall not take his seat in the Assembly until he makes before such person, as is prescribed by the rules of the Assembly, an oath in such form set out in the First Schedule, as is applicable to a member of the Assembly.
Under its sub‑Article (2) the oath may be made at any time whether or not the Assembly is in the session. When the peti tioner's name was notified in the official Gazette by the Election Commission on the 23rd of May 1965, it was as a candidate, who had been returned from the Provincial constituency, i.e. a successful candidate and not as a member. At best he had been elected as a member, but he had not taken his seat in the Assembly. Without his taking the oath of office, as required by Article 106(1) of the Constitution, he would not occupy a seat in the Assembly, and enjoy the privilege of a member "in section 5(1) of Act XXXIII of 1964. We were referred to Articles 107(c) and 169(1) of the Constitution in support of the contention that the privilege was intended even for those who have been elected as members of the Provincial Assembly, though they may not have taken the oath of office. Article 107(c) which provides that a seat of a member of an Assembly shall become vacant, if he fails to take the oath referred to in Article 106 within a period of ninety days after the date of his election, unless the Speaker of the Assembly for good cause shown extends the period is not of any real help because the emphasis is not on membership but on a seat of the Assembly becoming vacant, when an elected member does not occupy it for 90 days. In an y case, the phraseology is not happy. Article 169 (1) enacts that after a general election of members of a Provincial Assembly, a person elected as a member shall, before the first meeting of the Assembly, elect five members to the seats in the Assembly reserved exclusively for women is of no help at all. Here refer ence is to the person elected. as a member, i.e., the successful candidate, and not to a "member", and no argument can be built on it in aid of the petitioner. Neither of these Articles can confer the status of a "member" on a successful candidate, before he has taken the oath in Article 106(1), so as to confer on him the privilege in section 5(1). It is well settled that before an elected or appointed member or an appointed official takes the oath of office, he does not bold the office, but is a member designate or a I Judge designate, or a Secretary designate or whatever other office it may be. The privilege attaches to a member of the House, and Article 106(1) makes it clear that a member shall not take his seat in the Assembly until he takes the oath. It is when he has taken the oath that he takes a seat in the Assembly and becomes a member thereof. He then enjoys the privilege of a member. There is no inconvenience, hardship or inconsistency caused by this inter pretation, because the oath provided in Article 106(1) for a successful candidate before he occupies the seat can be made at any time whether or not the Assembly is in session. There‑' fore, as soon as a member is declared successful, he can take the oath, which would entitle him to the privilege in sub section (1) of section 5. It cannot thus be argued that it) will not be available to him for the first session of the House. The advantage also is that where there is a dispute as to count, it can be settled expeditiously before he takes an oath. In the present case, the petitioner had not taken the oath, and instead on his behalf an undertaking was given that he will not take the oath, which would have led to his occupying a seat in the Assembly as a member, conferring on him the privilege. We were told in the course of arguments that a similar undertaking was given in the Supreme Court in the case of Mian Jamal Shah. We would, therefore, hold that as the petitioner had not taken the oath of office, he had not become entitled to the privilege of a member in subsection (1) of section 5 of Act XXXIII of 1964.
11. On behalf of the respondent, it was also argued that the petitioner was not entitled to the grant of equitable relief and we were referred to Haji Ghulam Nabi v. Settlement and Rehabilita tion Commissioner, Karachi and others (P L D 1962 Kar. 786), at p. 788, Ghulam Mohy‑ud‑Din v. Chief Settlement Commissioner (Pakistan) Lahore and others (P L D 1964 S C 829), Muhammad Saleem and another v. The Land Commissioner, Bahawalpur Division and others (P L D 1964 B J 15), Mst. Shahzadi Asfia Sultana Begum v. The Chief Settlement and Rehabilitation Commissioner, Lahore and others (P L D 1964 Pesh. 114) and Gandhinagar Motor Transport Society v. State of Bombay (A I R 1954 Bom. 202) but in view of our findings above, we find it unnecessary to deal with these cases.
12. No other contention was raised before us. For the reasons stated above, we dismiss this writ petition, but make no order as to costs, since intricate questions of law were involved.
K.M.A. Petition dismissed.
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