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Petitioner: MAHMOOD AZAM FAROOQI VS Respondent: Maulana MUHAMMAD SHAFI OKARVI AND 9 JUDGMENT
Court Name: Sindh High Court Judge(s): Durab Patel, Jamaluddin H. Ahmad Title:MAHMOOD AZAM FAROOQI vs Maulana MUHAMMAD SHAFI OKARVI AND 9
JUDGMENT
Reported As: PLD 1976 Karachi 381 Result: Order accordingly Judgment JUDGMENT ' DORAB PATEL, J.-This is an election appeal, and the appellant and the respondent, other than the second respondent, were candidates for the elections to the National Assembly from Constituency No, NW 131 Karachi-4. As the appellant was declared the returned candidate, the first respondent filed an election petition against him. The appellant contested it whilst the fourth respondent admitted that the entire election should be set aside. The Election Tribunal allowed the petition by its order dated 12th May 1975. Hence this appeal, and both the first respondent and the fourth, respondent have filed cross objections. 2. The appeal has been argued at very great length by all the learned counsel, but a very strange feature of the arguments was that, at one stage or the other, all the learned counsel pressed for the remand of the case to the Election Tribunal with the prayer that, pending the remand, their candidates should be permitted to sit in the National Assembly, and, as this plea on the part of the appellant seemed strange, I would examine it first. 3. Lengthy evidence was recorded before the Election Tribunal, to which I will refer as the Tribunal, and the case was fixed for arguments in February this year. As this was during the pendency of a session of the National Assembly, the appellant's learned counsel filed an application before the Tribunal that it was not competent to proceed with the hearing of the first respondent's petition during the pendency of the Assembly session. The Tribunal dismissed this application and proceeded to hear arguments; therefore, although the entire evidence had been recorded, Mr. Khalid M. Ishaque's submission was that the impugned order was coram non judice, because the Tribunal had heard arguments in violation of the mandatory provisions of subsection (I) of section
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4 of the Privileges of Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Act, 1963 (hereinafter called the said Act). Subsection (1) of section 4 reads:- "(4) Proceedings in Civil Court etc.-(1) Notwithstanding anything to the contrary contained in any law in force for the time being, no Civil or Revenue Court, and no Election Tribunal, shall proceed, during a session 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 3 is waived, by application made in writing to the Court 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." ' As it is nobody's case that the appellant had waived his privilege in writing, Mr. Khalid M. Ishaq submitted that the Tribunal was not competent even to hear arguments in the first respondent's election petition. We, therefore, observed that the presence of the appellant at the time of argument was completely unnecessary, hut, according to Mr. Khalid M. Ishaq, the Tribunal as well as Civil and Revenue Courts were totally debarred from proceeding with any matter involving a Member of the National Assembly during the pendency of a session of the National Assembly. To say the least, the consequences of accepting the submission would be far reaching, but, as the prohibition imposed by the provision is with reference to the privilege conferred by section 3 of the said Act, it is necessary to examine this section :- "(3) The Privileges, etc.-(1) No Member shall be detained under any law relating to preventive detention, nor shall any Member be required to appear in person in any Civil or Revenue Court, or before any Election Tribunal, during a session, and for a period of fourteen days before and fourteen days after the session." ' The privilege under the section is attracted only when a Member of the National Assembly is required to appear in person, but, as I observed, the appellant's presence was not necessary at the stage of the case when, according to Mr. Khalid M. Ishaq, the Tribunal acted coram no judice, and, as learned counsel submitted that the Courts could not curtail the privileges of the Legislature, let me examine the submission by reference to an election A petition. After all, the Legislature is interested in the speedy disposal of election petitions, but, as its sessions necessarily tend to get longer and longer with the burden of modern legislation, the result of accepting Mr. Khalid M. Ishaq's submission would be infinite delays in the hearing of election petitions. But this reacts adversely on the composition of the Legislature; therefore I would be reluctant to accept the submission advanced in the absence of very clear language in that respect. And, on the other hand, Mr. M. A. Pesh Imam submitted that as the Legislature had not given any immunity whatsoever to its Members with regard to criminal proceedings, howsoever petty, it could not be argued that the privilege had been extended to the luxury of hearing arguments in a matter in which a Member was involved. The submission illustrates the far-reaching consequences of accepting Mr. Khalid M. Ishaq's submission, but the question before us is only of construing the meaning of the words "be required to appear in person". As the Legislature was aware that a Member's presence might often not be necessary even in a case filed by him, would it have used the words quoted if it had intended to give that I would describe as a blanket immunity to Members? And further the words quoted were not unknown to the Legislature. Apart from the fact that they were to be found in the election laws, in my humble opinion, they are copied from rule 3 of Order V of the Civil Procedure Code. Order V deals with the issue of summons, and the first rule in it states that when a suit has been instituted "a summons may be issued" to the defendant to appear and answer the claim Rule 2 is not relevant, but rule 3 reads: "Where the Court sees reason to require the personal appearance of the defendant, the summons shall order him to appear in person. . .." ' As the words "to appear in person" have been reproduced in section 3 of the said Act, I find it difficult to accept Mr. Khalid M. Ishag's submission, the more so, as the learned counsel was
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compelled to admit that the same expression had been used in the election laws for many decades. However, learned counsel's submission is supported by the observations of a Division Bench of the West Pakistan High Court in Mian Muhammad Sharif v. Member, Election Commission, Lahore and others (1) to whicu learned counsel drew or attention. 4. The facts in Muhammad Sharif's case are similar to those in the instant case. The Election Tribunal had heard a case during the pendency of a session of the Provincial Assembly of West Pakistan; Muhammad Sharif, who was aggrieved by the Election Tribunal's order, unseating him, had filed a constitutional petition against the Tribunal's order. But Muhammad Sharif's constitutional petition was dismissed on the {{FOOT NOTE}} (1) PLD 1968 Lah. 219 {{FOOT NOTE}} ' ground that he had not taken his seat in the Provincial Assembly; therefore the learned Judges of the Division Bench were not called upon to decide whether the Election Tribunal's proceedings had become illegal, because the Tribunal had continued to hear the case during the pendency of a session of the Local Assembly. When we pointed this out to learned counsel, he referred us to the observations of the learned Judges in paras. 7 to 9 of the judgment. But I find that in para. 7, the learned Judges have merely stated the contentions raised by the petitioner, and one of these contentions was that the impugned order was illegal, because the Tribunal had continued to hear the case during a session of the Provincial Assembly despite the mandatory provisions of section 5(1) of the Provincial Assembly of West Pakistan Privileges Act, 1964. The provisions of this statute are in pari materia with those of the said Act, and, with reference to the contention that the Tribunal had acted in contravention of section 5(1) of the Provincial Assembly of West Pakistan Privileges Act, the learned Judges observed in para. 9: "(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 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." ' Whilst these observations support Mr. Khalid M. Ishaq's submission to the hilt, with the utmost respect, I have to point out that the learned Judges have not given any reasons for the view taken by them of the privilege conferred by section 4, and it does not appear from the judgment that any arguments were addressed on the scope of a member's privilege. However, if paragraph 9 had contained the ratio of the case, we would have been inclined to accept Mr. Khalid M. Ishaq's submission that it was binding on us. But their Lordships expressly pointed out in the next paragraph that the petitioner had not become a member of the Provincial Assembly, and, as the privilege conferred by the Provincial Assembly of West Pakistan Privileges Act could have been claimed only by a member of the Provincial Assembly, it is clear that the observations in paragraph 9 of the judgment are obiter, and I am not aware of any case in which a Division Bench of a High Court has c been held to be bound by the obiter of another Division Bench of that High Court.
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5. I would also quote here a passage from Halsbury's Laws of England (Third Edition). In paragraph 1683 of the 22nd Volume, it is stated: "1683. Dicta.-Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand (usually termed dicta) have no binding authority on another Court, though they may have some merely persuasive efficacy (c)". ' Mr. Khalid M. Ishaq, however, relied on passage in the corpus juris and other American Publications, but none of the passage was on the precise point before us namely is a Court bound by the obiter of an equal Court. 6. Learned counsel then attentpted, on the basis of a passage in Allen's - "Law in the Making," to draw a distinction between obiter dicta and mere dicta and submitted that, as the observations in the case cited were obiter dicta and not simply dicta, they were binding on us. Allen in the fifth Edition of his famous treatise observes at page 242: "Judicial opinions are known as obiter dicta, or simply dicta, and it is extremely difficult to establish any standard of their relative weight. It is certainly a mistake to regard all dicta as equally otiose and therefore equally negligible. Much depends on the source of the dictum, the circumstances in which it was expressed, and the degree of deliberation which accompanied it." ' Thus, the learned author's statement is much more qualified than learned counsel's submission. In any case, as the learned author has based his distinction on a judgment of the Court of Appeal, and I will now examine that judgment. 7. In Slack v. Leeds Industrial Co-operative Society (1), Sterndale, M. R., observed at page 451:- "Dicta are of different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of opinion upon a point which has not been raised in the case, and is not really present to the Judge's mind. Such dicta, though entitled to the respect due to the speaker, may fairly be dis-regarded by Judges before whom the point has been raised and argued in a way to bring it under much fuller consideration. Some dicta, however; are of a different kind; they are, although not necessary for the decision of the case, deliberate expressions of opinion given after consideration upon a point clearly brought and argued before the Court. It is open, no doubt, to other Judges to give decisions contrary to such dicta, but much greater weight attaches to them than to the former class". ' I agree with Mr. Khalid M. Ishaq that the dicta, relied upon by him, fall under the second type of dicta referred to by the Master of the Rolls in the passage quoted; therefore they command the highest respect, and it is with the utmost reluctance that I have decided to take a contrary view, but, as I explained, this is because the attention of the learned Judges of the Lahore Seat of the High Court was not drawn to the provisions of section 4 of the Provincial Assembly of West Pakistan Privileges Act, 1964. And further even in Slack's case, after drawing the distinction between the two types of cases, the Master of the Rolls referred to judgments of the Court of Appeal, in which the dicta were considered dicta. He, therefore, followed them, but even this was with the observation, which is to be found as page 452: "I think the decision in Martin v. Price (1894) 1 Ch. 276 shows that it is open to us to decide the question contrary to those dicta, and the question is whether we ought to do so. I am of opinion that we {{FOOT NOTE}} (1) (1923) 1 Ch. 431 {{FOOT NOTE}} ' ought not, and that if opinions of such sight given after such careful consideration more than thirty years ago, often mentioned and considered during that time and never disapproved, are to
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be overruled, it should only be done by the final tribunal of appeal and not by a Court of co- ordinate jurisdiction ". ' It was not Mr. Khalid M. Ishaq's case that the obiter in Muhammad Sharif's case had even been considered in any other case; therefore, on the principles laid down by the Master of Rolls, it is clear that the obiter in Muhammad Sharif's case is what Mr. Khalid M. Ishaq described as mere dicta, and, for the reasons given by me, I would not follow it. 8. I now turn to the other arguments advanced, and I would first point out that the margin between the appellant and the first respondent was a very narrow margin. Further, the appellant had succeeded on the basis of the postal ballot votes in his favour cast on or after 4th December 1970. But, according to the Tribunal, they should have been cast before this date; therefore the Tribunal rejected them. Mr. Khalid M. Ishaq submitted that the view of the Tribunal was contrary to the express provisions of section 37 of the National and Provincial Assemblies (Elections) Ordinance, 1970 (hereinafter called the said Ordinance), and we had examined his submissions in the order passed by us on the appellant's injunction application. For the reasons which I have given in that order, Mr. M. A. Pesh Imam stated that E the votes cast before the consolidation date were valid and that the Tribunal had erred in rejecting the votes cast after 4th December 1970; accordingly I will not burden the record by repeating the arguments advanced in support of this submission by Mr. Khalid M. Ishaq, and I hold that the Tribunal had acted illegally in rejecting the votes cast in the appellant's favour on the ground that they had been cast after 3rd December 1970. 9. Now, according to Mr. Khalid M. Ishaq, if the votes, thus rejected, were allowed to be counted in favour of the appellant, the appellant would succeed, because the margin of votes between the appellant and the first respondent was very narrow; therefore, without prejudice to his contention, that the case should be remanded for arguments, Mr. Khalid M. Ishaq submitted that, as the Tribunal had illegally rejected the postal ballot votes cast after 3rd December 1970, that finding should be set aside and the appeal allowed. We were astonished by the submission, because the first respondent had pressed his petition on several grounds, and merely because one of those grounds was erroneous, I do not see bow we can allow the appeal. The question is of the validity of the other grounds relied upon by the first respondent in support of his election petition, and it is necessary to examine each of those objections. 10. The first respondent had filed forty-five applications under section 37 of the National and Provincial Assemblies Election Ordinance (hereinafter called the said Ordinance) for recounts at various polling stations on account of alleged breaches of the law mentioned in those applications. This objection was vehemently pressed, and the forty-five applications of the first respondent were duly brought on the record and exhibited. And, as they had been filed before the Returning Officer, the first respondent examined this Returning Officer, Mr. Moosvi, on his forty-five applications. As the appellant's learned counsel was late on the day when Mr. Moosvi was examined about these applications, the Tribunal compelled the first respondent to examine Mr. Moosvi without these applications until the appellant's learned counsel chose to turn up at his own time. I am constrained to express my regret at the manner in which the Tribunal acted, because justice must not only be done but must be seen to be done. However, despite this obvious handicap, Mr. Moosvi was able to recollect the irrigularities at three Polling Stations 5, 30 and 70, and I would now examine his evidence about these three polling stations. 11. The application for a recount at Polling Station No, 5 was on the ground that "the envelopes were not in order, and further this was agreed that the ballot papers will be counted property". Mr. Khalid M. Ishaq criticised this application as vague, but an application for a recount cannot possibly be0 equated with an election petition. Obviously Mr. Moosvi also did not think so, because he said in his evidence. "I would have ordered recoun of Polling Station No, 5, if I had given time." I have quoted
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the words o the witness as they are to be found in the copy of his deposition. Then as .To the other two polling stations, the witness said: "In respect of Polling Station No, 70, I had on opening the envelope containing the statement of count and the envelope containing the votes (excluded ballot papers from the count) found the discrepancy like this "that instead of 39 ballot papers I had actually counted 32 ballot papers in the envelope though the statement mentioned that those doubtful votes excluded from the count were 39 in number. I had actually made such a note on Form XIV of statement of count presented to me by the President Officer of Polling Station 70. It is true that at Polling Station 30 the number of votes polled shown therein is 1401, but in the statement of count given to me by the Presiding Officer this number is shown to be 1405...The record sent to me by the Presiding Officer of Polling Station 30 showed that on the envelope containing the excluded ballot papers it was written that it contained 31 ballot papers but when I opened it I had found only 17 ballot papers therein. I had made such a note, but I did not order recount. I had sat in my chair for 36 hours continuously in connection with the preparation of consolidated list and the parties and their agents were all there with me. I had promised to recount in respect of Polling Station 5, but after sitting at chair after 36 hours I have no life left in myself and I could not venture upon recounting or sitting for any further time." 12. This evidence is sufficient to prove that there were irregularities in the counting of votes at three polling stations which required further investigations, and an application for a recount is only an application for further investigations. However, remedies have to be prosecuted according to the law, and as the first respondent did not file an application for a recount at Polling Station No, 70, Mr. Moosvi's evidence is of no avail to his case; therefore Mr. Pesh Imam pressed only for a recount at Polling Stations 5 and 30, but Mr. Khalid M. Ishaq submitted that, as the Tribunal had, in the exercise of its discretion, rejected these applications, we could not interfere with that decision, because no question of law was involved in it. Mr. Khalid M. Ishaq also submitted that an application for a recount could not be allowed unless the applicant proved that he would be declared the successful candidate if his application for a recount was allowed. 13. I would now examine Mr. Khalid M. Ishaq's arguments, and, as the question is of construing the Returning Officer's powers, I may point out that they are set out in subsection 5 of section 37 of the said Ordinance. This subsection reads: "The Returning Officer shall not recount the valid ballot papers in respect of any polling station unless, (i) the count by the Presiding: Officer is challenged in writing by a contesting candidate or his election agent and the Returning Officer is satisfied about the reasonableness of the challenge; or (b) he is directed so to do by the Commission". ' On the plain language of the subsection, a recount must be carried out by Returning Officer if he is directed to do so by the Commission, or, if he "satisfied about the reasonableness of the challenge." The satisfactio contemplated by this provision is an objective satisfaction; therefore Returning Officer cannot reject an application for a recount arbitrarily, and, in the instant case, Mr. Moosvi admitted in his evidence that he had decided, as the Returning Officer, to allow the application for a recount at Pollin Station No, 5. He then said that he was not able to carry out his decision, because he was tired. Mr. Pesh Imam challenged this failure to carry ou the recount as mala fide, and Mr. Moosvi's failure to do his duty was for a reason extraneous to the said Ordinance, but, as the Tribunal had bee enthusiastic in its approval of Mr. Moosvi's orders, it should have taken a recount of the votes at Polling. Station No, 5, because that was Mr. Moosvi's order, which he had failed to carry out. The Tribunal's reasons for not doing so were that it would have allowed the recount "but for the fact that the petitioner had not in his evidence stated anything regarding Polling Station No, 5, nor was Mr. Moosvi questioned regarding the alleged irregularities in respect of Polling Station No, 5." Mr. Khalid M. Ishaq sought to defend the first reason given by the Tribunal
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on the plea that the first respondent had to prove that his application for a recount was necessary. That is correct. But the appellant had not dared to cross-examine Mr. Moosvi about his statement that he had decided to allow a recount at Polling Station No, 5; therefore the first respondent had proved to the hilt the necessity of a recount at this polling station, and he was not required to repeat in his evidence what had been proved by the person most competent to give evidence on the question, namely, the Returning Officer. Next, as to the Tribunal's second reason, it was nobody's case that Mr. Moosvi was an eye-witness of the irregularities at Polling Station No, 5, and, as he admitted that the application for a recount was justified, I am unable to understand the observation of the Tribunal that the witness had not been questioned "regarding the alleged irregularities in respect of Polling Station No, 5". I regret to say that the inferences drawn by the Tribunal are whimsical, and I would allow a recount at Polling Station No, 5. 14. I now turn to Mr. Khalid M. Ishaq's submission that an application for a recount can be allowed only if the applicant can prove that the result of the recount would make him the successful candidate. In my humble opinion, if this had been the criterion for the Returning' Officer's satisfaction under section 37 (5), the Legislature would have enacted accordingly, but it did not. Secondly, the submission, if accepted, would lead to absurd and arbitrary consequences, and I would illustrate this by reference to the instant…
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