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Petitioner: Mir DARYA KHAN VS Respondent: MEHRAN KHAN AND 5 OTERRS
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Tufail Ali A. Rehman Title: Mir DARYA KHAN vs MEHRAN KHAN AND 5 OTERRS Case No.:Constitutional Petition No. 244 of 1972 Miscellaneous Appeals Nos. 57, 30, 52
JUDGMENT
Reported As: PLD 1974 Karachi 209 Result: Petition dismissed Judgment JUDGMENT TUFAIL ALI A. REHMAN, C. J.----These four Miscellaneous Appeals are all directed against orders of the Election Tribunal, Sind & Baluchistan, constituted under the National and Provincial Assemblies (Elections) Ordinance, X111 of 1970 while the two Constitutional Petitions also challenge the legality of petitions pending before the same tribunal. In each of the appeals, with the exception of Miscellaneous Appeal 57 of 1972, the order sought to be appealed against an order refusing an application to dismiss the petition without trial on the ground that by reason of violation of certain provisions of the Ordinance, they were, under the Ordinance itself, liable to be dismissed without trial. In the case of the Miscellaneous Appeal No. 57 of 1972 the order is one of refusal to adjourn the trial of the petition to enable the appellant to produce certain evidence. We found it convenient to hear these matters together because the first question that arose in the Miscellaneous Appeals was whether they were at all maintainable under the statute. It would be obvious that, if they were held to be maintainable, then the Constitutional Petitions could not be inasmuch as obviously an alternate remedy existed but, in the case of the Constitutional Petitions, the question also arises whether, even if that bar to the maintainability of the petition is not in the way of the petitioners, a petition of this kind at an interlocutory stage was permissible or at any rate should, as a matter of discretion, he heard at all. Consequently we decided to hear counsel upon these questions as preliminary questions in the matters intending to proceed further in the matter if we came to the conclusion that they were maintainable. After hearing counsel on both sides, however, we conferred between ourselves and decided that none of the miscellaneous appeal were maintainable and also that the constitutional petitions were not such as to justify our interference,
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at any rate at this: stage of the proceedings, and, therefore, announced our decision to that effect without going into the merits of the matter further. This decision was announced about one hour after we had finished hearing arguments in the matter and we stated that we would record our reasons later. The present is intended to be a statement of my reasons for following this course. 2. The right to appeal from decisions of Tribunal arises, admittedly, from and only from section. 64 (3) of the Ordinance and the entire section. Reads that:- ---64. Decision of the Tribunal-(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order- (a) dismissing the petition; (b) declaring the election of the returned candidate to be void ; (c) delaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or (d) declaring the election as a whole to be void. (2) Save as provided in subsection (3), the decision of a Tribunal as an election petition shall be final. (3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 and the decision of the High Court on such appeal shall be final, and shall not be subject to appeal to the Supreme Court. Every such appeal shall be heard by a Division Bench of the Judges of the Court." It will be noticed that the word "decision" where it first occurs in sub--section (3) is not expressly qualified and the question, therefore, in the main, turns upon an interpretation of this subsection that is, whether it permits an appeal against all and any decisions of the Tribunal or only such decisions as are mentioned in subsection (1) of the same section. In effect, therefore, the maintainability of these appeals is dependent entirely upon the width of the meaning to be assigned to the word "decision" in section 64 (3). 3. So far as the -constitutional petitions are concerned they lie and have indeed been preferred under Article 201 of the Interim Constitution and, both in that Article and in the corresponding Article 199 of the permanent Constitution, a condition for the exercise of the jurisdiction by this Court is that it should be "satisfied that no other adequate remedy is provided by law". Clearly, therefore, if the miscellaneous appeals are held to be maintainable the constitutional petitions must be dismissed upon this ground alone, namely, that another adequate remedy is provided by law. If, however, it be held that the miscellaneous appeals are not maintainable then that particular bar to our jurisdiction is undoubtedly no answer to the petitioners but then the questions that would arise are whether, even if we agree with the petitioners in the constitutional petitions, the matters come within either sub-clause (1) or sub-clause (2) of clause (a) of the sub-Article of Article 199 which confers the jurisdiction in. Question. The second question would be whether as a matter of discretion it would be right for us to interfere at this stage of the matter. 4. Although we have not gone into the merits of the case it would be convenient briefly to state what the complaint is in each of these matters before going on to deal with the questions of law upon which our decision rests. The appellant/petitioner in each of these appeals and petitions was the successful candidate in the election in question and in each case respondent No. 1 is the person who filed a petition before the Election Tribunal challenging the validity of the election of the appellant/petitioner. 5. In Miscellaneous Appeal 30/72 which relates to the Constituency P$-5-Sukkur II to the Provincial Assembly of Sind an application Was made to the Tribunal asking it to dismiss the petition on the ground that it violated section 52 of the Ordinance inasmuch as it did not contain such a statement of the material facts or full particulars of the corrupt or illegal practices or illegal acts
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alleged to have been committed as are required by section 52. In order to appreciate the contention it will be convenient to reproduce sections 52 and 60 of the Ordinance which read thus: "52. Contents of petition.-(l) Every election petition shall contain--- (a) a precise statement of the material facts on which the petitioner relies ; (b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act ; and (c) the relief claimed by the petitioner. (2) A petitioner may claim as relief any of the following declarations, namely- (a) that the election of the returned candidate is void; (b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or (c) that the election as a whole is void. (3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings. 60. Dismissal of petition during trial.-(1) The Tribunal shall dismiss an election petition, if- (a) the provisions of section 51 or section 52 have not been complied with; or (b) the petitioner fails to make the further deposit required undex subsection (4) of section 59." By an order dated the 24th December 1971 the Tribunal dismissed this application holding that it was not feasible to decide the question; in effect the order holds that it is not apparent that section 52 has been violated but that, if it should become apparent at any subsequent stage of the case; the Tribunal had power to dismiss it even then. Although the application was dismissed the Tribunal, after the written statement had been filed, included among the issues to be decided the following issue: "Does the election petition contain full particulars of corrupt and illegal practices as well as illegal acts alleged in the petition as required by section 52 of the National and Provincial Assemblies (Elections) Ordinance, 1970? If not, is the election petition liable to tar dismissed under section 60 of the said Ordinance?" It will be seen, therefore, that although the Tribunal did not consider, oil the material before it, that a case had been made out for a dismissal of the petition under section 60 it did not finally decide that matter, not only treating it as an issue to be decided in the main judgment which would follow at the end of the trial of the petition, but also reserving to itself the power to dismiss it at any earlier stage if it should become clear that section 52 had indeed been violated. 6. Miscellaneous Appeal No. 52/72 relates to the Constituency NW-108. Jacobabad to the National Assembly of Pakistan and in this case too an application of a similar kind was made asking that the petition be dismissed on the 1st December 1971, and a subsequent application prayed that "the petition or part of it is liable to be dismissed summarily" and that the issue for this be tried as a preliminary issue. By an order dated the 19th of may 1972 the Tribunal held that the allegations were in fact precise and that section 52 was not violated but, among the issues that he framed, was the following: "Whether the allegations contained in the election petition are vague and full particulars not given as required by section 52 (b) of the Ordinance X111 of 1970? If so, whether the election petition should be dismissed under section 60 of the said Ordinance ?" 7. Miscellaneous Appeal 131/73 also arose out of an election to the National Assembly, the Constituency in question being NW-131.-Karachi IV. In this case respondent No. 1 filed an application under section 37 (5) (d) before the Chief Election Commissioner on a question of a re-counting of
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the valid ballot papers and this was dismissed but the matter was agitated again by means of a constitutional petition in the High Court and later by Appeal to the Supreme Court all of which he lost. He then presented a petition to the Election Tribunal and it would seem that, in the written statement, objections were taken of the same character as in the other two appeals which mentioned, namely, that section 52 had not been complied with and the Tribunal proceeded to frame issues and thereafter, that is, on 1-7-1972, the appellant made an application asking first that the expression "by consent of parties" which was a part of the order framing issues be deleted and that the petition be dismissed for non-compliance of section 52. The Tribunal deleted the expression complained of but required the Advocate for the appellant to specify how section 52 was not complied with and in answer the Advocate would seem to have stated that he intended to question certain paragraphs of which he gave the numbers adding the word "etc." The Chairman then recorded that no other para. Would be questioned and wanted to hear arguments but agreed to adjourn the matter to the 3rd July 1972 and upon that date another application was made by the appellant claiming that he challenged all the paragraphs in which allegations of corrupt or illegal practices were made. The Chairman heard arguments and on the 2nd October 1973, passed the order, which is sought to be appealed against, holding that the allegations were detailed enough and that, therefore, section 52 was not violated. 8. The last Miscellaneous Appeal, namely, the one numbered 57 of 1972 relates to the Constituency P. S. 25, Hyderabad-III to the Provincial Assembly of Sind and here the question of an altogether different character. The main complaint against the appellant in the election petition, indeed the only one, was that he had not attained the age of 25 years on the date of his nomination. Three issues were struck but substantially they all relate to this one question. The appellant filed a certified copy of the birth register in Ajmeer Municipality (India) showing his birth date as being the 14th December 1944, and this was exhibited as Exh. 49. He also examined oral evidence in support of his contention that he had attained the requisite age. Respondent No.1 before us, that is to say, the petitioner before the Tribunal, objected to Exh. 49 but the objection was overruled and there-- after the appellant claims that he attempted to get authenticated copies of this birth register from the High Commissioner for Pakistan in India but, in the meantime, war broke-out and it became quite impossible to obtain such copies. On the 29th May 1972 the case was fixed for arguments and on that day the appellant made three applications under section 59 of the Ordinance which provides for certain procedural matters and among other things for the recording of evidence, read with Order XVIII, rule 17 of the Civil Procedure Code praying for adjournment. He has appealed and although I think the purpose of the appeal clearly is to call into question the order refusing him an adjournment it is not very precisely put in the memorandum. In the statement of facts it is stated "these applications were rejected without proper application of mind by the Tribunal and called upon the appellant to address the arguments on the main case, hence this appeal." The prayer clause itself is "it is, therefore, prayed that this Honourable Court will be pleased to call for the record and proceedings of Election Petition No 2/71 (Lai Muhammad v. Muhammad Usman and others) from the Election Tribunal, Sind & Baluchistan and set aside the orders appealed and pass any other appropriate orders". Technically 1 think, therefore, there is no real prayer but in substance what is intended to be challenged is the propriety of the refusal to adjourn. 9. Of the two Constitutional Petitions one, namely, Constitutional Petition No. 244/72 relate to the same Constituency and the same matter. As Miscellaneous Appeal No. 52/72 calling into question the very same order. Quite clearly this petition is filed out of caution and infect paragraph 10 of the petition states "that appeal, being C. M. A. No. 52/72, has already been admitted. In the course of the arguments, a preliminary objection was raised that "no appeal was maintainable under section 64 (3) of the Ordinance; hence this petition under Article 201 of the Interim Constitution of Pakistan." Of course the petitioner is the same as the appellant in Miscellaneous Appeal No. 52/72.
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10. Finally, Petition No. 610 of 1972 relates to an election to the National Assembly from Constituency No. N. W. 109, Sukkur No. I and here also an application was made under section 60 for dismissal of the petition on account of non-compliance of section 52 of the Ordinance. This application was dismissed but among the issues one issue, namely, issue No. 6 reads thus: "Whether full particulars of the allegation of corrupt and illegal practices or illegal acts as required by section 52 (1)(b) of the National and Provincial Assemblies Ordinance, 1970 were not given in the election petition or whether the allegations are vague? If so whether the election petition is liable to be dismissed under section 60 of the same Ordinance?" 11. It was of course conceded by learned counsel for the appellants that an appeal is the creature of statute as it could hardly be denied, the pro--position being too well established to admit of argument now. The argument, therefore, turned entirely upon the meaning to be given to the word "decision" in section 64 (3) and in reaching the conclusion that I have, to matters which, I feel free to say, have strongly influenced me in favour of the narrower construction are, firstly, an inclination to hold that the jurisdiction to hear an appeal from a Tribunal setup by the Legislature for the A purpose of deciding election disputes must be understood as narrowly as the statute is capable of being construed and, secondly, the context in which the relevant provision appears. 12. The first of these matters is due to the historical background of the adjudication of election disputes in our country and in England from which country largely our own development of the law has stemmed. This was considered in some details by a Division Bench of this Court, of which I was a member, in Miscellaneous Appeal 37/73. Syed Saeed Hassan v. Pyarall Allana. That appeal arose from a final decision of the Election Tribunal which held the election in question to be bad and the appeal before this Court was filed by the person who was originally declared the successful candidate. Inasmuch as the matter related to a final decision, the question whether an appeal lay against any order of the Tribunal other than a decision after trial naturally did not arise and was not considered but in considering the scope of the appeal itself the judgment of the Bench came to the conclusion that these were not matters inherently within the jurisdiction of the Court but were, historically, always regarded as the exclusive field of the Legislature itself and in view of that the general trend of the judgment, which based itself upon several decisions of the Supreme Court, was that interference could be justified only to the extent that was strictly permitted by the statute and no more. It is only a reading of the whole judgment which really brings out this position in complete detail and it is difficult to quote specific passages from it which would effectively summarise the reasoning but nevertheless the following two passages are indicative of the approach which was adopted in that judgment "In the ultimate analysis, I think, the limits of our power to interfere with the findings of the Tribunal are determined by the relevant statutory provisions which is section 64 of the Ordinance but I think it would be right to consider first what historically has been the approach of the Courts to this problem. In England and in "those countries where the Judicial Committee of the Privy Council exercised the authority of a final Court of appeal it has always been held that the right to settle election disputes belonged to the Legislature itself and that the Courts would not, in the absence of statute, feel justified in interfering with any decisions given by such a body as aril election tribunal. There never has been any question of any inherent jurisdiction in the Courts to decide election disputes. It is unnecessary for me to quote from the many English cases and it will suffice, think, to refer to some cases of the Supreme Court which not only authorita--tively lay down the limits within which we ought to interfere but which also recite the history of the power of the Courts in England and other countries which have inherited that tradition," The judgment then goes on to quote extensively from some cases of the Supreme Court: "It will be seen, therefore, that the determination of an election dispute is not a matter which is normally to be understood as being within the jurisdiction of the Courts and interference in the
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decisions of Tribunals set up for that specific purpose is limited to the power expressly conferred by statute and then must be exercised with restraint." 13. I adhere to the view that I expressed in that judgment and think that if there is any doubt in the matter then that doubt must be resolved against and not in favour of the maintainability of an appeal. This is of course not to say that where the language of the statute is plain and clearly does confer the power of hearing an appeal I would on account of this presumption decline to exercise the jurisdiction; the duty of interpretation and construction arises, however, only when there is more than one possible meaning to be attached to the language used by the statute. If the language is plain enough no such duty arises at all. 14. Let me consider then next, the context of the provision which confers, the right of appeal. It is in the first instance to be noticed that the power is not conferred by a section standing alone, that is to say, a section, which confers the power of hearing an appeal and does not deal with any other matter. The section occurs after several which provide for the procedure to be followed by the Tribunal in the trial of an election petition and the first subsection states, what the powers of the Tribunal are "Upon the conclusion of an election petition" and these are to dismiss the petition, to declare the election of the returned candidate to be void, to declare the election of the returned candidate to be void and to declare some other candidate to have been duly elected or to declare the election as a whole to be void. It is to be noted that in subsection (1) itself the word "decision" is not used at all. Subsection (2) then gives finality to the decision of a Tribunal save as is provided for in subsection (3) which confers upon any person aggrieved "by a decision of the Tribunal" to appeal to the High Court and then goes on to state what the grounds are upon which' such an appeal may be maintained and how it shall be heard. Regard being had to the context I cannot but feel that the decision which is being referred to here is the order which is provided for in sub--section (1). 15. It is also to be noticed that the heading of the section is the expression "decision of the Tribunal" and this clearly is the order passed under subsection (1). I am of course aware that there are a large number of cases which have held that the heading of a section cannot curtail a power given in the section itself or control the meaning of the section. I am, by no means, attaching such importance to the heading to make it the important, much less the conclusive, factor in deciding the meaning of the word "decision". But there are also cases which hold that in the case of an ambiguity it is a factor which may be taken into account. Maxwell in his Treatise on the Interpretation of Statutes (XII Edition) afters taking note of the many cases m which it has been held that marginal notes cannot be used as aids to construction says, in regard to headings, "the headings pre-fixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words". 16. Even the dictionary meaning of the word "decision" is "the action deciding (a contest, question, etc.); settlement, determination; a conclusion, judgment, specially one formally pronounced in a Court of law". The word "decide", a grammatical variation of which has been used in this meaning, is itself defined in the dictionary to mean, "to settle a question in dispute ; to pronounce a final judgment" (Oxford Coincise Dictionary). So far as the dictionary meaning therefore, goes it would seem to me a decision which finally settles a controversy and that after determina--petition of the questions which are relevant to it and appears to me to be an indication of a limitation of the meaning to a settlement of the question after a full hearing. I realize of course that the dictionary meaning cannot be regarded as a statutory definition but, in the absence of a statutory definition, I think, this meaning and the context in which the word appears leads strongly to the conclusion that what was intended to be understood by the word was the kind of decision rendered by the Tribunal under subsection (1) of section 64.
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17. Learned counsel for the appellant at first attempted to argue that there was no limitation, whatever, upon the word "decision" and that, therefore, any and every order of the Tribunal was capable of being appealed from under the subsection but soon had to concede that so wide a meaning was quite impossible for, then, even such comparatively minor matters as a ruling upon the admissibility of evidence or even the refusal to adjourn would become appeal-able. As a matter of interest it might be noted that one of the appeals that is before us is against a refusal to adjourn. 18. If, however, then the word "decision" is not to be understood as meaning any and every order then a principle would have to be discovered which would limit the meaning and that principle must, I think, clearly be discoverable from the statute itself. In this position Mr. Khalid Ishaque, appearing in one of the appeals for the appellant, advanced the…
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