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Writ Petition No. 19 of 1963, decided on 5th February 1963.

Election may be declared to be void "as a whole" under clauses other than cl. (e) [e.g., cl. (a) or (b)]

Tribunal declaring whole election void under Art. 27 (a), (b)‑Tribunal consequently deciding not to proceed to record evidence in respect of Recriminations‑Petitioner before Tribunal' not raising any objection to such decisian of Tribunal‑Deemed to have acquiesced in decision‑Petitioner not entitled to make grievance of procedure or decision of Tribunal, by way of petition under Art. 98, Constitution of Pakistan (19621 Writ‑Certiorari does not lie in case of acquiescence in irregular (impugned) procedure‑Constitution of Pakistan (1962), Art. 98 [King v. Williams and others (1914) 1 . K B 608 ref.]

Bar against jurisdiction of Courts‑Constitution of Pakistan (1962), Art. 171 (1)‑Bar against jurisdiction of Courts to entertain election disputes‑Bar under both provisions not operative in case of disputes arising from proceedings and judgment of Election Tribunal‑[e g., (1) dispute as to claim that Tribunal should not have declared "whole election void but should have declared petitioner duly elected ; (2) dispute as to Tribunal's. decision not to record evidence in respect of Recriminations in view of its decision to declare election void as a whole]‑Constitution of Pakistan (1962), Art. 98.

S. M. Zafar for Petitioner.

A. S. Pirzada for Respondents Nos. 1 and 2.

Date of hearing : 25th January 1963.

Shamsul Hasnain Haider has brought this writ petition to challenge the legality of that part of the order of the Election Tribunal by which it has declared the entire election to the National Assembly held in constituency No. NW‑71/Hyd‑II to be void, without declaring the petitioner to be the duly elected candidate. He has additionally requested for a direction to the Election Commission of Pakistan not to hold bye‑elections in the said constituency.

2. Paragraphs 1 to 3 of the writ petition contain a state ment of introductory facts. Paragraph 4 contains an assertion that the Tribunal was bound to declare the petitioner to be the elected candidate. Paragraphs 5 and 6 contain the legal grounds in support of the assertion. Paragraphs 7 and 8 contain a criticism of the reasons given by the Tribunal for not declaring the petitioner to be the successful candidate. Paragraph 9 contains an allegation the, Mir Ghulam Ali Khan Talpur respondent No. 1 had attempted to commit fraud on the Con stitution by "putting up rats son", Mir Ijaz Ali Khan Talpur, respondent No. 2, as a candidate beside himself. Paragraph 10 contains the reliefs sought by the petitioner which are mentioned above in paragraph 1. An application for interim orders to restrain the Election Commission of Pakistan from holding bye, elections in the constituency was moved when the petition came up before this Court for admission. In view of the provision contained in Article 98 of the Constitution that‑.

"the Court shall not make an interim order Sunless the prescribed law officer has been given notice of the application and the Court, after the law officer has been given an oppor tunity of being heard, is satisfied that the making of the interim order would not have the effect "of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest."

We ordered notices of the interim application to be issued and postponed our decision as to the admission of the petition till after that notice : The notices were served on the respondents and Mr. Abdus Sattar Pirzada, counsel for Mir Ghulam Ali Khan Talpur and Mir Ijaz Ali Khan Talpur, respondents Nos. 1 and 2 appeared in response to them, but nobody appeared on behalf of the Tribunal and the Election Commission of Pakistan who are respondents Nos. 3 and 4 in these proceedings.

3. We have heard Mr. S. M. Zafar of Lahore, counsel for the petitioner in support of the petition with a view to ascertain whether the petition merits admission or not. Mr. Pirzada addressed us on the petition with object of opposing the interim application.

4. We were informed during the hearing that the prescribed law officer to whom notice ought to have been given in terms of the provisions, reproduced above, of Article 98 of the Constitu tion, was the Attorney‑General of Pakistan, but no notice was issued to him. As a result of this omission we are not in a position at present to grant an interim order, but the arguments advanced by Mr. S. M. Zafar and Mr. A. S. Pirzada enable us to decide whether the petition merits to be admitted for regular hearing or not.

5. The legal grounds set out in paragraphs 5 and 6 of the writ petition in support of the petitioner's case. briefly stated, are that Article 13 of the Settlement of Disputes (First Elections) Order, 1962, lays down as to what claims can be made in ar. election petition, and Article 26 of the Order. lays down as to what reliefs can be granted by the Tribunal. These Articles show that three claims can be made, and that if the petition is not dismissed, they can be granted. A reading of paragraph 5 of the writ petition created an impression on our minds that the case of the petitioner was that the Tribunal was bound to accept, if it did accept, the claim made in an election petition without the option of granting a relief that is other than the claim ; but Mr. Zafar assured us that this was not his case. He stated that it was open to the Tribunal, according to the situation, to give a relief irrespective of whether it was or was not claimed in the election petition.

6. Counsel contended that in this case the relief claimed by the petitioner in his election petition was that the election of the returned candidate be held to be void, and that the petitioner be declared to have been duly elected. This claim was made in accordance with Article 13 (b). The first part of the claim has been accepted by the Tribunal, but the second part has been rejected by declaring the whole election to be void. The reasons for not granting the second part, according to counsel, are that the Tribunal has guessed that the votes which were given to Mir Ghulam Ali Khan Talpur would have been given to his son if the voters were not misled by the erroneous acceptance of the father's nomination paper because the popularity of the father can "be considered to be the popularity of" the son. Taking this view the Tribunal has held that the voters would be wronged if they were not given an opportunity of casting their votes again after the father's election was held to be void. These considera tions according to counsel, are foreign to the provisions of the Settlement of Disputes (First Elections) Order, 1962, because there are only two circumstances in law in which the claim of a petitioner to be declared duly elected can be defeated. They are that either in terms of Article 25 (1) a recriminating petition against such a petitioner be successful or in terms of Article 27 (e) the Tribunal should find that "corrupt or illegal practices or illegal payments, employments or hirings have so extensively prevailed at the election that they may be reasonably supposed to have affected the result." Neither of these alternatives have been established. Thus the Tribunal could 'not, according to counsel, legally refuse to declare the petitioner to be the duly elected candidate.

7. This argument was advanced to establish the alleged illegality of the judgment of the Tribunal with respect to a part of the petitioner's claim, but it presumes that an election cannot be declared to be void in terms of Article 27 except on the ground contained in clause (e) of that Article. The Article is as follows :‑

"27. Grounds for declaring election void.‑The Tribunal shall declare an election to be void if it is satisfied that‑

(a) the failure of any person to comply with the provisions of the Constitution or the Order or the rules has materially affected the result of the election ; or

(b) the result of the election has been materially affected by the improper acceptance by the Returning Officer of a nomina tion that was invalid ;

(c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice ; or

(d) a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his agent ; or

(e) corrupt or illegal practices or illegal payments, employ ments or hirings have so extensively prevailed at the election that they may be reasonably supposed to have .affected the result

Provided that in relation to paragraph (d) if the Tribunal is satisfied that a corrupt practice has been committed by an agent of the candidate other than his election agent, the Tribunal may decide that the election is not void if it is also satisfied that no corrupt or illegal practice was committed at the election by the candidate or by his election agent, and that the corrupt practice which was committed without the sanction or connivance of the candidate or his election agent ; and further that the candidate and his election agent took all reasonable precautions to prevent corrupt or illegal practices at the election."

8. A study of this Article makes it clear that an election may be declared to be void as a whole under other clauses than clause (e) also. This can, for instance, happen in terms of clause (a). Counsel was, therefore, not quite right in contending that the claim of the petitioner for a seat could be defeated only in terms of Article 25 (1) and Article 27 (e). We may mention here that the Tribunal has held the election to be void under clauses (a) and (b) of Article 27 (see paragraphs 20 and 21 of the Tribunal's judgment). We, therefore, pointed out to counsel that his argument was not comprehensive.

9. Its incomprehensiveness did not only make the argument inconclusive but dependence on it has led counsel to the omission of not noting all the reasons which have influenced the Tribunal in favour of not declaring the petitioner to be the successful candidate. The Tribunal has pointed out that it had informed the parties before hearing the recriminatory applications that in its view the whole election was to be declared void. The con sequence of this view was that, according to the Tribunal; "the evidence of the respondents in support of their recrimination applications" was not necessary, and the result of the disclosure of the latter view to the parties was that‑

"respondent No. 1 (Mir Ghulam Ali Khan Talpur) reduced his number of witnesses (to support his recriminating applica tion) and examined only 20 witnesses."

He bad originally proposed to examine 325 witnesses. The witnesses who were produced did not entirely fail to impress the Tribunal against the petitioner, but the Tribunal did not pay much attention to it. The relevant part of the Tribunal's order is as follows :‑

"Several witnesses out of them have stated about the undue influence brought by the police officers of the locality on the voters to support the petitioner. Evidence bas also been led to prove that loans were advanced to some of the Basic Democrats with a view to induce them to vote for the petitioner. But we consider it wholly unnecessary to discuss this evidence and give our view with regard to the corrupt practices committed in this election in view of our opinion that the election in the whole of this constituency should be declared void."

10. The above facts prove that owing to the view expressed by the tribunal, Mir Ghulam Ali Khan Talpur was deterred from producing all of his evidence to establish the charges of objection able practices against the petitioner. We pointed this out to Mr. S. M. Zafar, who replied that this method of conducting the proceedings was not proper, as it amounted to prejudicing the claim of the petitioner for being declared the successful candidate. He explained that the petitioner might have succeeded in establish ing the flimsiness of the recriminations, if the Tribunal had not made up its mind in advance. The disclosure of the Tribunal's mind, according to counsel, rendered the petitioner helpless, because he was not in a position to induce Mir Ghulam Ali Khan Talpur to produce his entire evidence in spite of that disclosure. We pressed Mr. S. M. Zafar not to stop at making an oral grievance of the conduct of the proceedings by the Tribunal, because the petitioner could have made it a separate ground in this petition but to carry the argument to its logical conclusion by informing us whether in spite of this manner of conducting the proceedings it was possible for him to urge on behalf of the petitioner that he should be declared to be the successful candidate. He conceded that the petitioner could not make this claim because the trial of the recriminations has remained inconclusive, but requested that the Tribunal may be directed now to try again and decide the recriminatory applications.

11. This request is founded on the allegation of defective procedure. As to the grievance of counsel that irregular or illegal procedure was adopted, we may add that his client was not as helpless as the argument presents him to have been, because Mr. Zafar. who was representing the petitioner in those proceedings, could have objected to the view expressed by the Tribunal, challenged it as premature and at least pointed out that the omission of Mir Ghulam Ali Khan Talpur in not producing all his evidence by acting on the opinion of the Tribunal should not be allowed to prejudice the claim of the petitioner to be declared duly elected. Mr. Zafar did not suggest to us that he in any manner showed his dissatisfaction with the .procedure that was adopted by tl a Tribunal. His conduct may not be open to criticism as an Advocate because experience often tells seasoned lawyers not to raise objections for the purpose of getting a claim accepted as a whole when there are easy chances of the acceptance of a major part of it. The major part of the petitioner's claim was that the election of Mir Ghulam Ali Khan Talpur be held to be invalid. The second part of his claim was not free from risk, because the petitioner could not be too sure before judgment of the result of the recriminating appli cations. This fear was present to the minds of the petitioner as well as Mr. Zafar because Mr. Zafar has informed us during these proceedings that he has warned his client before instituting these proceedings of the possibility of the recriminations being established and that in such an event he might be worse off than at present, because he could in that case be disqualified for being a candidate.

12. These facts induce us to believe that the omission of the petitioner and his counsel in not objecting to the procedure, which was adopted by the Tribunal was not the result of help lessness but apparently the result of exercise of far‑sighted discre tion. We have tried to appreciate this aspect of the situation to satisfy ourselves. Purely legally the petitioner can be said to have acquiesced in the procedure simply because he made no protest against it an 11 to be estopped from objecting to it now because his acquiescence has resulted in the curtailment of evidence by Mir Ghulam Ali Khan Talpur.

13. The above legal result has for its basis the presumption that the evidence produced by Mir Ghulam Ali Khan Talpur was not adequate to prove the corrupt and illegal practices which were alleged by him. This is one side of the picture ; the other side is less flattering to the petitioner, because there is no con clusive reason for raising the presumption of such inadequacy; for it appears from the judgment of the Tribunal that the petitioner has produced no evidence at all in rebuttal. This omission of the petitioner could lead to grave results if the Tribunal had heeded the evidence of the 20 witcesses examined by Mir Ghulam Ali Khan Talpur and given its judgment on it. With this state of the record, it is scarcely open to the petitioner to contend that in these proceedings he can be declared to be the successful candidate.

14. The omission of the petitioner in not producing any evidence to rebut the statements of 20 witnesses could do him no harm because the Tribunal had informed the parties that in its view the whole election deserved to be declared void, but this omission would have amounted to throwing the petitioner utterly at the mercy of the Tribunal if the petitioner had afterward shown his dissatisfaction with that view of the Tribunal. He is in that predicament before us now. We find no explanation of the absence of protest and of the omission to produce evidence in rebuttal except that the petitioner had willingly subscribed to the view of the Tribunal. This conduct of the petitioner has a special significance in these proceedings, because on the analogy of the common law view with respect to certiorari, acquiescence is a complete answer to the charge of irregular procedure and even to irregular assumption or exercise of jurisdiction ; See the King v. Williams and others ((1914) 1 K B 60). These proceedings are not pro ceedings in certiorari, but the analogy should hold good because we are called upon in exercise of high supervisory jurisdiction to interfere for rectifying an alleged illegality.

15. The conclusion of all that has been said above is that the petitioner cannot in the present circumstances claim the seat for himself and is not entitled to question the alleged irregularity or illegality of the procedure because he had, for his own reasons acquiesced in it.

16. Mr. Pirzada while opposing the application for interim orders contended that the petition itself is not maintainable because section 4 of the Settlement of Disputes (First Elections) Order, 1962, and Article 171 (1) of the Constitution bar the jurisdiction of this Court to entertain it.

17. Article 4 of the Order is as follows :‑

"4. Jurisdiction barred.‑No question that can be raised in appeal under Chapter II shall be raised by an election petition or before any Court or authority whatsoever, nor shall any question that can be raised by an election petition be raised before any such Court or authority."

The questions which have been raised by the petitioner before us could neither be raised in appeal under Chapter II, nor by an election petition, therefore this Article is not a bar to these proceedings.

18. Article 171 of the Constitution is as follows :‑‑

"171 (1) Subject to clause (2) of this Article, provision may be made by law‑

(a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission ; and

(b) for other disputes arising in connection with such an election or referendum to be finally determined by a Tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law.

(2) When a person has been declared to have been elected as President, the validity of the election shall not be called in question in any manner before or by any Court or authority whatsoever,

(3) The validity of anything done by the Commissioner under Article 160, 161, or 162 shall not be called in question in any manner before or by any Court or authority whatsoever."

(The italics are ours).

Clauses (2) and (3) of this Article are not relevant here. Sub‑clauses (a) and (b) of clause (1) contain directions for the enactment of certain laws. Under those directions the Settlement of Disputes (First Elections) Order, 1962, has been enacted. Those directions are not for us.

19. The passage which follows these two sub‑clauses bars all "disputes arising in connection with" an election or referedum from being decided "otherwise than under such a law" and also bars the validity of an election from being "called in question except in accordance with such a law." We have to examine the effect of this passage.

20. The second of the above‑mentioned two kinds of disputes does not exist before us because the validity of an election is not called in question ; therefore, we have firstly to see whether the disputes that have been raised before us are "disputes arising in connection with an election", and as such necessarily to be decided in accordance with "such a law" only, i.e., the Order ; and cannot be decided in terms of Article 98 of the Constitution. In terms of the above‑mentioned passage of Article 171 then (disputes) cannot be decided under Article 98 if they can be dealt with under the Order. But obviously these disputes cannot be dealt with under the Order because they have arisen from and after a decision made by the Tribunal under the Order and there is no provision

in the Order for the decision of such disputes. Secondly, we have to appreciate whether the above‑mentioned passage excludes the application of all laws only when the Order is applicable or irrespective of its applicability. For this purpose we have to see the effect of the words :‑

"Otherwise than under such a law" on the prohibition con tained in the preceding words, which are

"no dispute in connection with such an election shall be) decided."

If these two sets of words are complementary to each other, then the prohibition is not absolute. On the contrary, it is dependent on "such a law" being applicable to the disputes. This applic ability is a requisite of the prohibition. But can it be that the applicability of the Order is not a requisite of the prohibition.

The answer is that it cannot be so because the words "otherwise than" will not bear this strain. This petition is, therefore, not barred by Article 171 of the Constitution for (sic) lease of a requisite of the prohibition.

21. The above discussion may be criticised as misconceived by raising the contention that the intention of the law should be taken to be that the decisions of the Tribunal are final, because to achieve this purpose a direction has been embodied in clause (1) of Article 171 of the Constitution that "provision may be made by law" for all disputes "arising in connection with" an election "to be finally determined by a Tribunal". This is, however, not a sound criticism, firstly, because the effect of law is not to be ascertained by the directions upon which it was enacted but by its own contents ; secondly, because the words "arising in con nection with" should not be emphasized to unreasonable limits. The disputes which arose in connection with the election were the subject‑matter of the election petition which has been decided by the Tribunal ; the present disputes have arisen from the pro ceedings and judgment of the Tribunal. The nature of these disputes is different from the nature of those disputes which existed in connection with the election before the conclusion of the trial of the election petition. The disputes which arose in connection with the election are at the back of the present disputes, but the previous disputes shall form the background of all events that may take place in connection with the Tribunal's decision. They will be the background of a riot too if a riot took place owing to the refusal of the Tribunal to declare the petitioner as duly elected. It is nevertheless difficult to describe such a riot, and on the same analogy these disputes, as arising in connection with the election for purposes of deciding these matter otherwise than under the Order. The reason is that the decision of the Tribunal has intervened and become the starting point of new and almost independent causes of grievances and complaints. There is some connection between these disputes and the election, but it is too remote and unreal.

22. We thus conclude that this petition is neither barred by Article 4 of the Order, nor by Article 171 (1) of the Constitu tion ; but dismiss it for two reasons. They are that in the present state of the record the petitioner admittedly cannot be declared to be duly elected and because the petitioner cannot ask now for the trial of the recriminating applications owing to acquiescence and estoppel.

A. H.

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