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Civil Petition for Special Leave to Appeal No. 307 of 1967, decided on 3rd October 1967.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 3^rd August 1967, in Writ Petition No. 293 of 1967).

Art. 58(3)‑Judgment delivered by Supreme Court Point of law raised in another case vis‑a‑vis law laid down in judgment requiring clarification‑Special Leave to Appeal granted.

Mian Jamal Shah v. Election Commission P L D 1966 S C 1 ref.

Mahmud Ali, Senior Advocate Supreme Court (Shaukat Ali Khawaja, Advocate Supreme Court with him) instructed by Fazal‑i -Hussain, Attorney for Petitioner.

Nemo for Respondents.

Date of hearing : 3rd October 1967.

‑This case arises out of an election to the National Assembly from the Constituency described as N. W. F. Peshawar‑2, held in March 1965. This Court dealt with questions relating to the count in an appeal by Mian Jamal Shah, the present petitioner, from a decision on the writ side by the High Court which had the effect of unseating him. The decision of this Court is published as Mian Jamal Shah v. Election Commis sion (P L D 1966 S C 1). It had the effect of recalling an order of the High Court quashing a decision of the Election Commission, by a Member in an appeal by Mian Jamal Shah against the decision of the Returning Officer rejecting. 14 ballot‑papers cast in his favour, which had the effect of giving Khan Nasrullah Khan a majority of four votes. The reason for the rejection was that a whole currency note was wrapped in twelve of them, a half currency note in one, and in the fourteenth there was enclosed a one‑pice coin. Five other votes were rejected for two other reasons, on which account three of Khan Nasrullah Khan's votes were also rejected, but these are not matter of concern in the present case Objection had been taken to the counting of twelve other votes, in each of which was enclosed a chit, bearing the Kalima in Urdu. These were included in the count by the Returning Officer, who found that the handwriting was the same on each chit, but this was not sufficient to identify the voters individually. The Member, Election Commission, had declined to accept the con tention that the votes carrying foreign matter should be excluded for bearing identifiable marks, holding that it was necessary for this that there should ‑be evidence of pre‑arrangement. This view was overruled by the High Court, which came to the conclusion that the marks were intentional and identifiable. In. appeal against the High Court order this Court held that the Member's order was made with lawful authority, and could not be reversed in writ jurisdiction.

In consequence of this order, the matter was brought before an Election Tribunal of three members, which recorded oral evidence, inter alia, on the point of pre‑arrangement in respect of the votes carrying foreign matter, and on this point came to the conclusion that they were intentionally and identifiably marked by the voters. Two members held that these votes should be excluded. The third member thought it was possible that the markings had been contrived by Khan Nasrullah Khan or one of the other unsuccessful candidates, and it was, therefore, open to doubt whether Mian Jamal Shah was guilty of the alleged corrupt practice.

A writ petition was moved against the order of the Tribunal allowing‑the petition and declaring Khan Nasrullah Khan to have been elected, without success. Mian Jamal Shah now seeks leave to appeal against the High Court order.

Mr. Mahmud Ali first argued that a pre‑arrangement. to mark votes is not a corrupt or illegal practice. Such a practice would appear to fall under the definition of "undue influence" which includes by fraudulent device or contrivance‑preventing free exercise of the franchise by an elector."

However, it is not for proof of commission of a corrupt practice that the election petition was allowed. The majority view was that the votes were visibly marked in a manner that showed a modus operandi. The Tribunal detected numbers camouflaged into the writing on the chits found with 12 votes. (This was a feature not noticed by the Member of the Election Commission). Accordingly they excluded no less than 26 votes. They did not record any finding of corrupt or illegal practice.

Mr. Mahmud Ali next argued that on practically the same evidence as was before the Member, namely, the external appearance of the votes, a conclusion of pre‑arrangement had been reached by the Election Tribunal which was within the jurisdiction of the Member, dealing with the count, to reach. Learned counsel referred to the judgments delivered in the Supreme Court in Mian Jamal Shah's case, and pointed out that there was no consensus of opinion, whether a matter relating strictly to the count was or was not within the exclusive jurisdic tion of the Member. The Chief Justice held the view that a matter relating to the count was within the Tribunal's jurisdiction provided that there was also an allegation of a corrupt or illegal practice for enquiry. Thus in the present case, if the oral evidence had been sufficient to show that either Mian Jamal Shah or, on the hypothesis advanced in the minority judgment of the Tribunal, Khan Nasrullah Khan or some other unsuccessful candi date had maneuvered the significant markings, either. by himself or by an agent, such person would have incurred a disqualifica tion, and would not have been able to claim the seat whether or not, after exclusion of the marked votes, he had gained a majority of the votes. But in the absence of such a finding, the Tribunal could, in the Chief Justice's opinion, hold that votes bearing intentional and identifiable marks should be excluded. Kaikaus, J. however, held that all questions relative to the count were exclusively within the jurisdiction of the Member hearing an appeal from a return by the Returning Officer. Mr. Mahmud Ali relies upon the view of Kaikaus, J. for arguing that, in the state of the evidence before the Tribunal, the order which it made was one which only the Member could have made in the earlier appeal. In the three remaining separate judgments, nothing was said on this question.

It is necessary that the point should be clarified, and we grant leave to appeal. Security‑Rs. 1,000. Early hearing, if preparation of the record is expedited.

Leave granted.

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