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Petitioner: Khan MUHAMMAD YUSUF KHAN KHATTAK VS Respondent: S. M. AYUB AND 2 Other
Court Name: Supreme Court of Pakistan Judge(s): Hamoodur Rahman, Sajjad Ahmad Jan, Anwar-ul-Haq Title: Khan MUHAMMAD YUSUF KHAN KHATTAK vs S. M. AYUB AND 2 Other Case No.: Civil Appeal No. 121 of 1972 F. A. O. No. 8 of 1972 C. A. No. 122 of 1972 Date of Judgment:1973-02-26 Reported As: PLD 1973 Supreme Court 160 Result: Appeal accepted
JUDGMENT
JUDGMENT HAMOODUR RAHMAN, C. J.-This appeal, by special leave is directed against the judgment of a Division trench of the Peshawar High Court in an appeal from -the decision of the Election Tribunal, North-West Frontier Province, constituted under sec--petition 54 of the National and Provincial Assemblies (Elections) Ordinance, 1970. The Election Tribunal had declared the election of the appellant herein to Constituency No. NW-I, Peshawar-1 to be void on the ground that he was the Managing Director of K. K. & Co. Ltd., Peshawar, on the date of filing of his nomination paper, as also on the date of the scrutiny thereof. This was held to be a disqualification under sub-clause (h) of C.(2) of Art. J of the Legal Framework Order, 1970. This sub-clause reads as follows:- "9. Qualifications and disqualifications for being a member.-(1) (2) A person shall be disqualified from being eiected as, and from being, a member if- (h) he, whether by himself or by any person or body of person in trust from him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a Co-opera--tive Society and Government for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government: It is now an admitted fact that K. K. & Co. Ltd. (hereinafter called the Company), a public limited company, had a subsist--ing contract with the Government for the supply of goods and 'the appellant was its Managing Director. The appellant,, however, claims that he tendered resignation on the 10 Decem--ber 1970. The letter of resignation (Exh. D. A.) reads as follows:- "Mohammad Yusuf Khattak,Phone No. 2798th
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M. A., Oxen, Bar-at-Law2. The Mall, President, Sarhad ProvincialPeshawar Cantt. Muslim League. 10 December 1970. To The Board of Directors, K. K. & Co. Ltd., Peshawar. Sir, It is with feelings of profound regret that I beg to announce my resignation from the Board of Directors of K. K. & Co., Ltd. And from the Managing Directorship of the Company. Yours faithfully, (Sd.) Muhammad Yusuf Khattak." Thereafter, he sought election to the National Assembly at a bye-election held to till a vacancy occasioned by the resignation of the then incumbent of that seat. The last date for the filing of' nomination papers for this election was the 27 of Decem--ber 1970, and the scrutiny of nomination papers was held on the 28th of December 1970, leaving in the field four candidates, the appellant and the three respondents herein. The election was held on the 14th of January 1971, and tit; appellant was declared elected. He polled 31,056 votes as against 25,226 votes secured by the first respondent herein, The other two candidates were defeated by wider margins. The result of the election was notified on the 26th of January 1971, but the first respondent challenged the election by an Election Petition, filed on the 10 of March 1971, on the ground that the appellant was disqualified under sub-clause (h) of Clause (2) of Article 9 of the Legal Framework Order, 1970, and that the election had been vitiated as a result of a large number of other illegalities and corrupt practices committed during the electrons. The appellant alone contested this petition t the other two respondents did not take any part in the proceedings. The appellant denied the charges and maintained that he had duly resigned both from the Managing Directorship as well as the Directorship of the Company on the 10th of December 1970: The allegations about corrupt practices and other illegalities, under the National and Provincial Assemblies (Elections) Ordi--nance, 1970. Were struck out on the ground of being vague and nebulous and the Election petition was contested on the following; three issues:- "(1) Whether respondent No. 1 was Managing Director of K. K. & Company Limited on the day of filing the nomination, papers and on the day of scrutiny thereof ? (2) Whether there was a subsisting contract between the Government and K. K. & Company Ltd. On both the aforesaid dates. If so, with what effect? (3) To what relief is the petitioner entitled?" It was conceded that K. K. & Co. Did have a subsisting con--tract with the Government of Pakistan. Hence the only question on which the parties were at issue, was as to whether or not the appellant stood disqualified on the date of his nomination in terms of Article 9(2)(h) of the Legal Framework Order, 1970. The Tribunal accepted the evidence led by the appellant of his tendering resignation on the 10 of December 1970,but came to the conclusion, upon a consideration of the relevant articles of the Articles of Association of the Company that the resignation took effect from the Ist January 1971, the date of its acceptance and not from the date of the communication thereof to the company. The Tribunal also found support for this conclusion from the conduct of the Company itself which, on receipt of the letter of resignation of the 10 of December 1970, issued notices on the 12 December 1970 for a meeting of the Board of Directors to consider, inter alia, "the acceptance of resignation tendered by Khan Muhammad Yusuf Khattak on 10 December 1970" (Exhe. D. B., D. C. And D. D.), the resolution (Exh. D. F) adopted by the Board of Directors on the lot of January 1971, toth th th th th th th
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accept the resignation of Khan Muhammad Yusuf Khattak from the Board of Directors and from the office of Managing Director "with deep regret" and the Form 'E' (Exh. P. E.) filed by the Company itself under section 32 of the Companies Act with the Registrar of Joint Stock Companies showing Khan Muhammad Yusaf Khattak as one of the Directors of the Company even on the 31st of December 1970. This form also contained a certificate rat its end to the following effect:- "I, Mohmmad Yusuf Khan Kbattak, do hereby certify that --the above list and summary truly and correctly states the facts as they stood on the 31 day of December 1970. (Sd.) Mohammad Yusuf Khattak, Managing Director." On this evidence, the Election Petition was accepted and the election of the appellant declared void. From this decision, the appellant went up in appeal to the --High Court under subsection (3) of section 64 of the National and. Provincial Assemblies (Elections) Ordinance XIII of 1970. This subsection reads as follows:- "64. Decision of the Tribunal.-(1) (2) ---------------------------.. (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 sec--petition 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 of two Judges of the High Court.--- The High Court after an elaborate examination of the entire evidence, the provisions of the Articles of Association of the Company and the relevant law, came to the conclusion that the Tribunal had rightly decided that the appellant was disqualified from seeking election on the relevant dates. The appeal was, accordingly, dismissed with costs on the 30 of June 1972. The appellant came up to this Court for special leave on the 13 of July 1972, under clause (3) of Article 186 of the Interim Constitution of 1972 and leave to appeal was granted to him on the 28th of August 1972, in spite of the caveat entered by the respondent No. 1, because, both sides had raised important questions of law which required consideration. It may be mentioned here that Mr. S. M. War, the learned counsel appearing for the caveator (now respondent No. 1), had at that stage too challenged the competency of the appeal and the jurisdiction of this Court to entertain the same by reason of the provisions of subsection (3) of section 64 of the National and Provincial Assemblies (Elections) Ordinance, 1970, read with Article 249 of the Interim Constitution. At the hearing of the appeal, he has again raised this as a pre--liminary objection. It is, therefore, necessary to dispose of this preliminary objection first. Subsection (3) of Article 64 of the National and Provincial Assemblies (Elections) Ordinance, No. XIII of 1970, has already been quoted earlier in this judgment. Article 249 of the Interim Constitution is in these terms:- "No election to the National Assembly or a Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by Act of the Federal Legislature." By clause (2) of Article 290, an Act of the Federal Legislature Includes "an Ordinance made by the President". Ordinance XL1I of 1970 is also an existing law which has been continued in force by Article 280 of the Interim Constitution. The question, there--fore, that has to be decided is whether the bar created by sub--section (3) of section 64 of Ordinance XI1I of 1970 continues not-- withstanding the provisions of Article 186 of the Interim Constitution giving to this Court jurisdictionst th th
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to hear and determine appeals from judgments, decrees, orders or sentences of a High Court and, therefore, no appeal lies to this Court from the judg--ment and decision of the High Court In an appeal from the decision of an Election Tribunal. I am unable to agree that Article 249 of the Interim Consti--tution controls Article 186 thereof. Article 186 does not say that the Supreme Court shall have jurisdiction to hear and deter--mine appeals from judgments, decrees, orders or sentences of the High Court subject to the other provisions of the Constitution; but the jurisdiction conferred on the Supreme Court by this) Article is only "subject to this Article". It is clear, therefore, that Article 249 does not control the jurisdiction of this Court nor has it anything to do at all with the jurisdiction of this Court. Under Article 186, this Court does not call the election to an Assembly in question but merely determines an appeal from a judgment of the High Court which it has delivered while hearing an appeal under subsection (3) of section 64 of Ordinance XIII of 1970. The words of exclusion occurring in this subsection of the Ordinance, which is a Sub-constitutional legislation, cannot, therefore, take away the jurisdiction given to this Court sub--sequently by the Interim Constitution itself without any reservation. It is interesting to note that a similar question arose in the case of Muhammad Saeed v. Election Petitions Tribunal, West Pakistan (AIR 1955 SC 233) where also reliance was placed on Article 146 of the Constitution of 1956, which was in precisely the same terms as Article 249 of the Interim Constitution, to claim a finality for the decisions of Election Tribunals but this Court held that the juris--diction given to the Supreme Court by Article 160 of that Con--stitution was in no way controlled by Article 146 thereof. Indeed, the Court went on to point out that, by the incorporation of Article 160 in the Constitution, the Constitution-makers had taken away the finality given by earlier laws to the findings of Election Tribunals and the Governor's order thereon. I see no reason to depart from the principles laid down in Muhammad Screed's case and hold that the finality given by subsection (3) of section 64 to the decision of the High Court in appeal from the decision of an Election Tribunal has now been clearly taken away by Article 18 of the Interim Constitution. Learned counsel has, in this connection, also referred us to certain comments of Mr. A. K. Brohi in his book on the 'Funda--mental Laws of Pakistan' regarding the decision in Muhammad Saeed's case (vide page 516); but with due respect to the learned author I am unable to agree with him that any serious difficulty presents itself in accepting the validity of the reasonings given by this Court in Muhammad Saeed's case and the Supreme Court of India in the case of Rari Vishnu Karnath v. Ahmad Ishaq (PLD 1957 SC (Pak.) 91). The jurisdiction conferred on this Court by clear terms of the Constitution itself cannot be whittled down on considerations of c policy or convenience. In the case of Muhammad Saeed, the question was as to whether this Court could grant leave to appeal directly from the decision of a Tribunal. The position here is different. The relevant law itself provides for an appeal to the High Court and the question before us now is merely this as to whether the decision of the High Court is to have the finali--ty given to it by that law notwithstanding the provisions of Article 186 which make the decisions of a High Court subject to appeal to this Court. If the Constitution-makers wanted to con- -tinue the exclusion of the jurisdiction of this Court, they would have said so in Article 186 itself; but since that has not been done, I cannot accept the contention that the jurisdiction given to this Court by the Constitution itself can be cut down or curtailed by a sub-constitutional legislation. Having disposed of this preliminary objection, I have next to consider as to what is the true nature and scope of the juris--diction of this Court in such matters. Learned counsel for the respondent No. 1 has contended that the jurisdiction is, at best, of a limited nature. Furthermore that on general principles it should be limited to interference only to cases where the Tribunal or the High Court has acted in excess of jurisdiction or exercised its jurisdiction capriciously or in violation of the principles of natural justice or in disregard of the norms of judicial procedure. Mere
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misinterpretation or misconception of law or miss-apprecia--petition of evidence, it is contended, is not enough to call for such interference. "Coming to the question whether we should interfere with the Tribunal's Report, I may state at the very outset that the supervisory jurisdiction of the Supreme Court under Article 160 is a restricted jurisdiction and an appeal to invoke it will not succeed where a special tribunal, like the Election Petitions Tribunal, has functioned within the spirit and the intention of the statute that created it and while so functioning has made a real and honest endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at, however, erroneous, will not be scrutiniz--ed or reviewed by this Court, and even if an error of law be committed by the Tribunal that will not be considered to be a sufficient ground for interference unless the law so misunder-- stood or miss-applied raises some general question of funda--mental importance to the proper functioning of the tribunal or the decision of the case. But if the Tribunal has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to or has, on no evidence, recorded findings which have deprived persons of important constitutional rights, the exercise of which is the very basis on which the whole constitutional fabric rests, this Court will be acting in betrayal of the Constitution if on any such case being made out it did not interfere with the verdict of the Tribunal." There are similar observations in the case of Smt. Mulibai v. Custodian of Evacuee Property (PLD 1964 SC 648), which read as follows:- "The limits which this Court has set upon itself when enter--taining appeals from Tribunals of this nature have been laid down in the case of Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others PLD 1957 SC (Pak.) 91, and we are clear in our minds that the present is not a case which comes within those limits, as we are not prepared to hold that the decision of the Custodian Authorities was based on no evidence at all, or upon any manifest misreading or misconcep--petition of the evidence or such that it could not honestly have been arrived at after giving due consideration to the facts and circumstances of this case." Reference is also made in this connection to the decision of this Court in the case of Jamal Shah v. Election Commission (PLD 1966 SC 1) and to an unreported decision of this Court in the case of Rahim Shah v. The Chief Election Commissioner of Pakistan C. A. No. 122 of 1972, decided on 22-11- 1272 to show that, at any rate, this Court has always placed upon itself a restraint in dealing with orders of Tribunals of exclusive jurisdiction. It is no doubt true that this Court does, in matters coming be--fore it for special leave to appeal directly from orders of Tribunals of such exclusive jurisdiction, act with considerable restraint and even otherwise does not regard itself as an ordinary Court of appeal. It does not even in ordinary civil matters grant leave merely to correct errors of fact or errors of law, unless some question of general or public importance is involved or some fundamental principle relating to the appreciation of evidence has been disregarded or such a grave error of law or procedure com-- mitted that for the guidance of Courts below, it becomes necessary to correct the same. But once leave has been granted and the appeal is before this Court, this Court has vested in it, by clause (1) of Article 189 of the Interim Constitution itself, all the powers necessary for doing complete justice in any cause or matter pending before it. In the exercise of this power, it certainly has the jurisdiction to do all that the Court, from whose decision the appeal is brought, could do. Thus, in an appeal from a judgment of a High Court in a proceeding brought before it under Article 201 of the Interim Constitution, this Court, while consider--ing whether the High Court has proceeded upon correct principles keeps in view the nature and scope of the jurisdiction given by that Article to the High Court, and where it becomes necessary to correct the High Court, this Court proceeds on the basis that it too has the same jurisdiction as the High Court. Similarly, in appeals from judgments
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delivered by the High Court in a second or a first appeal, this Court proceeds on the basis that it too is vested with the same powers of doing complete justice, which the High Court had. Following this principle this Court in the case of the United Bank of India Ltd. v. Azirannessa Bewa (PLD 1965 SC 274), reversed findings of fraud and collusion arrived at by the High Court after a re, appraisal of the evidence. In the case of M. O. Ghani v. A. N. M. Mahmood (PLD 1966 SC 802), special leave to appeal was granted as "several questions of law and fact were raised" in the petition for special leave. In the case of The Federation of Pakistan v. A.I Ihsan (PLD 1967 SC 249), this Court after examining the evidence actually reversed a concurrent finding of fact on the ground that it was "on the very face of it opposed to all laws of dynamics". The principle upon which this was done was elucidated as follows:- "It is no doubt true that in a civil appeal; this Court, following the practice of the Privy Council, does not normally go behind a concurrent finding of fact if that finding is not vitiated by any error in point of law but this rule, as pointed out by the Privy Council itself in the case of Bibhabati v. Ramendra Narayn AIR 1947 P C 19 is not a cast iron one and there may occur cases of such an unusual nature as will constrain' the Court to depart from the practice' in order to prevent a 'miscarriage of justice'. Upon this principle the Privy Council itself recognised that it would not hesitate to review the evidence in spite of a concurrent finding of the Courts below if it be shown with absolute clearness that some blunder or error is apparent in the way in which the learned Judges below have dealt with the facts vide Allen v. Quebec Warehouse Company (1887) 12 A C 101, or `if there had been any principle of evidence not properly applied'. But this at best is a rule of practice only which has gradually developed as a result of the decisions of the Board which are merely Illustrative and by no means exhaustive. Applying this principle we would say that the rule may also be legitimately departed from where the finding is on the face of it against the evidence or so patently improbable or perverse that to accept it would amount to perpetuating a grave miscarriage of justice. There would, in our opinion, be still greater justification for interfering with a concurrent finding of fact if the finding could be demonstrated to be physically impos--sible." The position here then would be that, since under sub--section (3) of section 64 the High Court had the jurisdiction of a Court of Appeal under section 100 of the Code of Civil Procedure, the correctness of the impugned judgment of the High Court will have to be considered on the basis as to whether the High Court had followed the provisions of this section of they Civil Procedure Code in the appeal before it, and if it has not done so, then this Court will have the right to correct it on the basis that it too has the same powers as the High Court. Now under section 100, Civil Procedure Code, an appeal lies to the High Court on any of the following grounds, namely (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material Issue of law or usage having the force of law (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Having disposed of the preliminary objection and determined the true nature and scope of our jurisdiction in this appeal, I now propose to deal with tie appeal on merits. Mr. M. Anwar, the learned counsel for the appellant, has contended that the Tribunal and the High Court were clearly wrong in taking the view that the resignation had to be accepted before it could become effective. Learned counsel contends that the resignation becomes operative from the moment it reaches the company, and after that, the Director ceases to be a Director. He has relied on subsection (2) of section 86-I of the Companies Act to point out that the office of a Director shall be vacated upon the happening of anyone of the events mentioned in sub section (1), as also
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upon additional grounds, if any specified in the Articles of Association of the Company. In the present case, Article 83 of tie said Articles provides that the office of a Director shall be vacated if, inter alia, "by a notice in writing he resigns his office". The provisions for vacation of office In the event of resignation having been added to the eight circumstances mentioned in subsection (1) of section 86-I of the Companies Act stands, it is argued, on the same footing as any one of the other conditions mentioned in subsection (1) of section 86-I. It is evident from a perusal of the conditions specified in subsection (1) of the said section that the office is automatically vacated on the happening of any one of the events specified therein. Thus, if a Director fails to obtain within the time specified by section 85 the share qualification necessary for appointment as a Director, or if he is found to be of unsound mind by a Court of competent jurisdiction, or is adjudged as an insolvent, the office must manifestly be automically vacated. If resignation by notice In writing is one of the conditions which is added to those specified in subsection (1), then it too must stand on the same footing and have the same effect. A Managing Director has, under Article 91 of the Articles of Association, to be appointed from amongst the Directors, and under Article 92 he is "subject to the provisions of any contract between him and the company" subject to the same provisions as to resignation and removal as the other Directors of the Com--pany. There is no evidence here that there was any contract to the contrary between the appellant and the Company. In any event, since a Managing Director has first to possess the qualification of being a Director, he cannot function as a Managing Director after he ceases to be a Director. Thus, if he resigns from the Directorship and that resignation operates from the moment of its communication to the Company, then he also ceases to be a Managing Director from that point of time. In any event, I am not In a position to say that he could continue as a Managing…
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