SAEED HASSAN Versus PYAR ALI

1. MUHAMMAD AFZAL CHEEMA, J.-Syed Saeed Hassan appellant herein was one of the 9 candidates for election to the Provincial Assembly of Sind from Constituency No. PS-53 Karachi-8, and was declared elected having polled 9863. votes as against 6965 and 6951 obtained by Mr. Pyar Ali Allana respondent No. 1 and Mr. Lutfullah respondent No. 2, respectively. The election was held on 17-12-1970 under the Legal Framework Order of 1970 read with National and Provincial Assemblies Ordinance XIII of 1970 (described hereinafter as the Ordinance) and the rules framed thereunder, Respendent No. 1 Mr. Pyar Ali Allana challenged the election of the appellant by filing an election petition under section 50 of the Ordinance. The allegations of corrupt and illegal practices if found to be established against the appellant rendered him liable to be unseated on the declaration of his election as void by the Tribunal. Three grounds were taken in the petition. Firstly, that on 15-12-1970, i.e. a day before the polling was held, the appellant had got printed and distributed Urdu pamphlet, Exh. 67-A, on behalf of an institution styled as `Anjuman Mohibban-e-Islam. Karachi' purporting to show that the appellant had the blessings and support of two religious leaders. Khawaja Qamaruddin Sialvi, President, Markazi Jameatul Ulami Pakistan and Maulana Mufti Muhammad Shafi Okarvi. The pamphlet consisted of two parts. The first was an appeal to all Sunni Muslims in the Constituency to vote for the appellant while the second was in the nature of a caution or warning upon the voters to beware of some persons who claimed to have the sympathy and support of the Jamaat Ahle Sunnat although they did not belong to the Sunni sect themselves. Secondly, that in order to further his election the appellant had obtained and procured the assistance of one Nasimuddin son of Fakharuddin a person in the service of Pakistan, and Lastly, that the appellant bad tried to intimidate the officials and the voters by holding out threats to them at different polling stations. This last allegation was, however, not pressed before the Tribunal and the trial was confined only to the first two allegations. In his election petition, the relief claimed by Mr. Pyar Ali Allana was that since the two allegations amounted respectively, to a corrupt and illegal practices, the election of the appellant may be declared void and that he (Pyar Ali Allana) be declared to have been duly elected instead, having polled the next highest number of votes in terms of section 66 of the Ordinance.

2. The allegations were denied by the appellant in his written statement. Syed Lutfullah respondent No. 2, however, admitted all the allegations and instead of laying a specific claim to the seat a position taken up by him subsequently before the High Court, he prayed that the election of the appellant may be held to be void and a suitable consequential order may also be passed. The Tribunal framed as many as 13 issues which are reproduced below

(1) Whether the provisions of sections 51 and 52 of National and Provincial Assemblies (Elections) Ordinance, 1970 have been complied with ?

(2) Whether the election of the petitioner would have been declared void, had he been the returned candidate and had a petition been presented calling his election in question ?

(3) Whether the respondent No. 1 printed or not printed and distributed pamphlet B 1 ? If so did it expressly or impliedly refer to the peti tioner ? If so what effect ?

(4) Whether none of the persons mentioned in the pamphlet namely Khawaja Kamaruddin Sialvi Saheb, Moulana Mohammad Shafi Okarvi Saheb and the Central Office of the Sunnat Wal Jamaat, Karachi, authorised the issuance of the said pamphlet ?

(5) Whether Anjuman-e-Muhibbane Islame is a dummy organization or is in collusion with respondent No. 1 ? If so what effect ?

(6) Whether the said pamphlet was printed at the Decent Printing Press ?

(7) Whether the said pamphlet was printed through Dacca Printing Press ?

(8) Who made the payments for the job of printing of the pamphlet and to whom and on behalf of whom ?

(9) If the above payment was made by Naseemuddin then what is the effect ?

(10) Whether Naseemuddin actively furthered the election of the respon dent No. 1 ? If so what is the effect ? If so did he take advantage of his position ?

(11) Whether the respondent No. 1 made threats in polling station No. 23 in the presence of voters in an attempt of intimidating the said officials and voters ? If so what is the effect 7

(12) Whether the alleged corrupt or illegal practices have materially affected the result of the election ?

(13) What should the order be ?

3. Issues 1, 2 and 11 were not pressed before the Tribunal. Issues 6 to 9 were taken up together and it was found that the pamphlet Exh. 67-A was got printed by Nasimuddin at Decent Printing Press through the Dacca Printing Press for Syed Saeed Hassan appellant with his connivance. Reliance was placed by the Tribunal in this regard on All England Law Reports, Volume I, page 602, Syed All Mawaz Shah Gardezi v. Lt: Col. Mohammad Yusuf Khan (1) and P L D 1963 S C 51. It would be useful to reproduce the precise observations of the Tribunal on these issues which are as follows :-

4. "From all this evidence it stands established beyond all reasonable doubts that the said pamphelt was printed by the Decent Printing Press through Dacca Printing Press, at the instance of Nasimuddin who had placed the order, paid the advance and then accompanied the owner of the Dacca Press to the Decent Printing Press and placed the order with them and after the bundles were prepared they were handed over to him on payment of the balance amount of Rs. 110 to the Dacca Press. It is further proved that the payment was made on behalf of respondent No. 1 for whose election propaganda the pamphlet was got printed and published in exactly the same manner as the two other Enlish and Bengali pamphlets were got printed by Nasimuddin for Syed Saeed Hassan which fact stood unchallenged from respondent side as stated above. As to the effect of all these findings I would deal with it later on."

5. On issue No. 3, the finding given was that the election petitioner Mr. Pyar Ali Allana respondent No. 1 herein being the only non-Sunni contes tant was the sole target of the pamphlet and that the appellant had called upon and persuaded the electors to refrain from voting for him on ground of being non-Sunni. Issue No. 4 was found in the affirmative on the ground that none of the two religious leaders mentioned in the pamphlet were examined to rebut the allegations nor for that matter had the appellant himself appeared in rebuttal thereof. As regards, issue No. 5, the `Anjuman Mohi'bban-e-Islam' was found to be a spurious organization whose name was exploited by the appellant through his agent Nasimuddin. No finding was considered necessary on issue No. 12. inasmuch as it was not a legal require ment under Ordinance XIII of 1970 to prove that the alleged corrupt or illegal practices had materially affected the result of the election. As regards issue No. 10, considerable evidence appears to have been led to show that it was Nasimuddin who bad proposed the name of the appellant for election and had subscribed to his nomination papers as a proposer. Not only this. his other family members including his parents were also closely associated with the appellant's election either as proposers or as seconders and some of the election meetings of the appellant were held at his residence. It was Nasimuddin who had placed the order for the printing of the Urdu pamphlet, Exh. 67-A. He supplied its original manuscript, Exh. 86, in his own hand. made payment for and took delivery of the pamphlet besides getting published some other English and Bengali pamphlets for the appellant. Significantly enough, it was frankly conceded before the Tribunal by the appellant's counsel that he did not rely on the evidence led by his client in rebuttal of these allegations particularly when the star witness, namely, Nasimuddin did not enter the witness-box. It would not be out of place to refer in this context to a more significant fact that the appellant did not appear as his own witness to deny the allegation that the corrupt or illegal practices were committed with his consent or connivance or to show that he had taken all reasonable precautions to prevent the commission. Having referred to the conduct of the appellant in his judgment, the view taken by the Tribunal in substance was that he was all the time deliberately trying to prevaricate and resorted to subterfuges. The following extract may be relevantly and advantageously reproduced :-

6. "The diary of the case shows that right from November, 1972 when the respondent was called upon to produce his list of witnesses, he 11 P T. D 1962 Lah 558 appeared to be anxious for adjournments and he had practically always succeeded in getting the adjournments. On 7th March, 1973 I had asked the query from respondent No. 1 whether he wanted to examine himself as a witness. It was submitted on his behalf that this query would be replied to on the following day. On 8th March, 1973, when the Tribunal asked him whether he would like to examine himself, request was made on his behalf that half an hour's time be given for an answer which prayer was readily granted. After half an hour respondent No. 1 informed the Tribunal that he would not like to examine himself. The matter was then taken up in appeal before the High Court on some other point. There also during the course of oral arguments the respondent bad not urged that he would like to examine himself Hence while remanding the case to the Tribunal the High Court bad not given any directions that the respondent may be allowed to examine himself though there were such directions for witnesses Dhani Bux and Abdul Qadeer. Curiously enough at a very late stage Mr. Rauf moved an adjournment application stating therein that the respondent had offered himself as a witness in the case. I had given him time up to 2.4-73. On 2-4-73 Mr. Rauf again prayed for time for offering the respondent as a witness but I had rejected that application with these words : ,

7. 'That stage is already over and even in the High Court no such move was made by the learned Advocate during his oral arguments. The High Court had while ordering the examination of witnesses not mentioned that respondent also be examined as a witness.'

8. All this sufficiently shows that respondent No. 1 had purposely withheld himself from the box hence as he unlike the petitioner could be having direct knowledge about the allegations against him adverse presump tions will have to be drawn against him."

9. As a result of the above findings, the election of the appellant was declared to be void on account of the corrupt and illegal practices found to have been committed by him calling into operation the provisions contained in section 65 (1) (c) and (d) read with sections 75 (3) and (4) and 76 (2).

10. As regards the prayer of the election petitioner/respondent No. 1 that having polled the next highest number of votes, be was entitled to be declared elected, the learned Tribunal having examined Saheb Mia Chowdhury v. S. M. Mia, Election Tribunal, Chittagong and others (P L D 1966 Dacca 439) and J. & C. Harrisons Ltd. v. Commissioner of Income-tax and others (P L D 1960 Kar. 670), the authorities pressed into service on behalf of the appellant to controvert Mr. Allana's claim to the award of the seat, found them quite distinguishable and inapplicable to the circumstances of the case before him. The learned Tribunal dwelt at length on the effect of the appeal to the religious sentiments of the Sunni voters as contained in the pamphlet, Exb. 67-A, on the basis of the appellant's false claim to the support of the religious leaders Qamaruddin Sialvi and Muhammad Shafi Okarvi of which Mr. Allana being an Ismaili Shia and the only non-Sunni candidate was the sole target. It was held that the entire Constituency was vastly contaminated by the appeal, and placing reliance on Hjazat Ali v. Muhammad Asghar ((1935-1950) 1 E C 276) vide order dated 12-5-1972, the Tribunal declared Mr. Allana as the duly elected , candidate instead.

11. Two appeals No. 37 of 1973 filed by Syed Saeed Hassan and No. 88 of 11973 filed by Lutfullah were preferred before the Sind & Baluchistan High -Court against the above decision of the Election Tribunal. The case of 'Mr. Lutfullah respondent No. 2 before the High Court was that according to the return of the election duly signed by the Returning Officer, he had ,secured 6951 votes as against 6754 votes polled by Mr. Allana and therefore, he and not Mr. Allana should have been declared as the duly elected -candidate in place of Syed Saeed Hassan. in his position was found to be factually incorrect and since no evidence was led by Syed Lutfullah to establish his claim before the Tribunal nor had he claimed the award of the seat as required by section 76 of the Ordinance, his appeal was dismissed on these short grounds. Apparently, feeling satisfied he did not take the matter any further.

12. As regards the appeal filed by Syed Saeed Hassan, it was dismissed ,principally on the ground that the Tribunal was a statutory authority of special jurisdiction and the High Court whose jurisdiction in the matter did not go beyond the scope of section 100 of the C. P. C. was not competent to go behind the findings of fact reached by the Tribunal even though they ,were incorrect. The contention raised on behalf of the appellant that the High Court was sitting as a Court of appeal and not in its writ jurisdiction .and as such competent to reverse the findings of fact was repelled by the learned Judges in the High Court, who placed reliance in this regard on Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan .and others (P L ,D 1957 S C (Pak.) 91) which in turn was based on some judgments of the Privy Council including Berger v. Landry a case from the Crown Colony of Malta. Tracing the historical background of election disputes and the changing modes of their resolution learned Judges made specific reference to the parliamentary origin of this novel jurisdiction and its subsequent transfer to the judiciary and the reluctance with which it was accepted by the Judges under protest expressing their "insuperable repugnance" to this responsibility. This jurisdiction was transferred to the Colonies and the dependencies of the British Empire so as to be exercised by special authorities of exclusive Jurisdiction and the Privy Council refused to interfere with the decisions of these designated forums for which resolution of election disputes became a matter of final determination. The learned Judges also examined the relevant Constitutional provisions contained in the 1956 and 1962 Constitu tions and finally reverted to the provisions contained in section 64(3) of the National and Provincial Assemblies (Elections) Ordinance, 1970, which ,provided for an appeal to the High Court from a decision of the Tribunal and imparted finality to it, excluding at the same time a further appeal to the Supreme-Court.

13. In order to appreciate the scope of the appellate jurisdiction of the High Court analogous to that of a Second Appeal under section 100 of the -C. P. C., reference was also made to this Court's decision in Muhammad Yusuf v. S. M. Ayub (P L D 1973 S C 160) with specific reliance on the following two passages:

14. "In the exercise of this power, it certainly has the jurisdiction to do ail 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 considering whether the High Court; bas 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."

15. Similarly, in appeals from judgments 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."

16. Applying this principle to the Ordinance his Lordship in a subsequent. passage observed :-

17. "The position here then would be that, since under subsection (3) of section 64 the High Court bad 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 the 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 tie same powers as the High. Court."

18. As a result of its review of the authorities detailed earlier, the learned Chief Justice the late Mr. Tufail Ali Abdur Rehman who delivered the judgment concluded as follows

19. "It seems clear to 'me, therefore, that we should not, and indeed that we cannot, interfere with the decision of the. Election Tribunal unless that interference is justified within the limits of section 100. On an examination of the evidence to which I shall briefly refer I am myself of the view that the findings of fact reached by the Tribunal were correct but, even if that be not so, mere incorrectness of findings of fact would not, clearly, attract our powers of interference."

20. Having spelt out the scope of jurisdiction, the learned Judges then proceeded to examine the merits of the case, on what appears to be a virtual reappraisal of evidence, besides the effect of non-examination of the appellant as well as respondent No. 10 respectively, 'as their own witnesses. The failure of Mr. Allana to enter the witness-box was explained away on the: ground that he did not claim to have any personal knowledge of the facts alleged in the petition. The position of the appellant was, however, held, to be distinguishable as no other witness could effectively rebut the allegations. of corrupt and illegal practices levelled against him by a clear and categorical denial and then offer himself for cross-examination by the opposite party. Likewise, the non-summoning of Nasimuddin by Mr. Allana was held to be inconsequential as obviously be would not have supported his case. While trying to interpret connivance, the learned Judges placed reliance on Ali Nawaz v. Muhammad Yusuf (PLD 1963 SC 51) and on the view taken by this Court came to the following conclusion: -

21. Other Other evidence to which I shall presently come show a close associa tion between Saeed Hassan and Nasimuddin and I think it must, therefore, be held that Saeed Hassan was aware of the-printing an& the publication of this pamphlet. It is not his case as indeed it cannot be his case, that he did anything to prevent it. His case is that the story about the printing and distribution is completely false. Naturally, therefore, it cannot, upon any hypothesis, be held, that he took any steps to prevent its distribution or its printing. If then he was aware of the printing and the distribution then that" fact added to the admitted position that he took no steps to prevent it clearly amounts to connivance."

22. On appraisal of the evidence, the finding of the Tribunal on the, second charge that the appellant had utilized the services of Mr. Nasimuddin a Government servant employed in the Archaeology Department for the furtherance of his election was also upheld.

23. The Darned Judges then proceeded to examine the effect of the pamphlet,. Exh. 67-A, and in view of the admitted position that the appellant was a Sunni whereas respondent No. 1 was the only non-Sunni candidate and further' that the allegation that the two religious leaders mentioned in the pamphlet had not authorised the publication having remained undenied and unrebutted, the conclusions arrived at by the Tribunal were upheld. It was, however, observed and rightly so that even if the pamphlet were really authorised, by the two religious leaders that would be wholly immaterial.

24. From the view taken by the High Court, the inescapable result that followed was that the election of the appellant was void and rightly so, declared by the Tribunal.

25. As regards the next point which has assumed greater importance for, having been particularly concentrated upon before us, is that of the entitlement of respondent No. 1 to the seat thus vacated and of his being declared as the duly elected candidate from the Constituency as held by the Tribunal. While trying to interpret the expression that the Tribunal is "satisfied that the petitioner or such other contesting candidate was entitled to be declared elected", the learned Chief Justice observed that' there was nothing in section 66 to indicate as to what could be the basis of such a finding nor was there any guideline as to the requisite nature of" standard of proof in this regard or the means of ascertainment of entitlement, in the conspicuous absence of the usual requirement that the alleged corrupt or illegal practice should have materially affected the election. In this view of the matter, it was held "it seems me, therefore, that once the Tribunal holds that a returned candidate has been invalidly elected then it must award the seat to the person having the next highest number of votes if that candidate had made such a claim". This view was also sought to be supported by a distinction drawn between section 66 of the Ordinance and the corresponding provision contained in section 101 of the Indian Act which required either that in fact the petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a majority of the valid votes. The contention raised on behalf of the appellant on the basis of paragraph 549 of Halsbury's Laws of England, Volume 14 that "if, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes", and there must be a fresh election was also overruled as being: inapplicable to . We case in view of the statutory provision contained ire, section 66 of the Ordinance .

26. Having examined the difference between the English doctrine as .enunciated above and the American view as contained in paragraph 264 of .American Jurisprudence, the learned Chief Justice observed as follows: -

27. Unless, Unless, therefore it is possible to hold that the Tribunal was in error on the point of law in reaching the conclusion that it ought to award the. seat to the candidate having the next highest number of votes who has claimed the seat, we cannot interfere with that decision. I am entirely unable to agree that we can or must import either the English or the American concept. Both these concepts necessarily are a result of the constitutional history of those countries and 1 think we must be governed by our own statute. That statute, as I have said, before contains no words of limitation. It is not, therefore, possible to say that the Tribunal should have awarded the seat only upon the basis of an arithmetical error or of the wrong counting of the votes in favour of the returned candidate . . . . . . . . . . The words merely are that the Tribunal be satisfied that such other contesting candidate was entitled to be declared elected. Now if one rejects both the English and the American doctrines and one accepts a finding that Saeed Hassan's election was void then clearly the person who had the next highest number of votes is entitled to be declared elected. Subject, therefore, to the claim of Syed Lutfullab, I think, the Tribunal was right in awarding the seat to Pyar Ali Allana."

28. Consequently, by a consolidated judgment dated 25-10-1973, both the :appeals i.e. No. 37 filed by the present appellant and No. 88 of 1973 filed by .respondent No. 2 were dismissed with costs.

29. Feeling aggrieved, the appellant moved a petition for special leave to .appeal under Article 185(3) of the Constitution on the grounds, that the judgment of the High Court was based on misreading and misappreciation of evidence, that the full particulars of the alleged corrupt and illegal practices had not been detailed in the election petition, that the names of Muniruddin (P.W. 1), Hatim Bbai (P.W.4) and Wahajuddin (P.W. 5) were not mentioned in the election petition and yet they are allowed to be examined and that

30. ..certain documents which were not mentioned it; the election petition were improperly brought on the record and admitted in evidence, that the inevitable non-appearance of the petitioner/appellant on account of illness and hospitalization supported by medical certificate was misinterpreted as a .deliberate act of prevarication, that the alleged corrupt or illegal practices did not stand established by reliable evidence. and lastly, that the High Court had erred in awarding the seat to respondent No. I inasmuch as the petitioner's disqualification not being patent and manifest, the voters of the Constituency could not be disenfranchised merely on the ground that out .of 23 polling stations, the pamphlets were distributed only at one or two places and that too on the eve of the polling as alleged by the two witnesses -produced on the point.

31. Leave was granted vide this Court's order dated 15-2-1974 to consider biter alia the contentions that the High Court had refused to apply its mind to the appraisal of the evidence on an erroneous view of its limited jurisdic tion, and that at any rate respondent No. 1 was not entitled to the award of -the seat in view of the provision contained in section 66 of the Ordinance. Before this appeal came up for hearing, the Attorney-General moved :.an application that the Federal Government may also be impleaded as a party as the legal points involved were not only of first impression but also .of considerable public importance. Reference was also made to the conflicting views taken by the Sind & Baluchistan High Court in this case and the subsequent case of Usman Kennedy (P. S. L A. No. 143 of 1974). The real reason seemed to be that Mr. Allana after having been declared elected was appointed a member of the Provincial Cabinet and on that account the Provincial Government as also the Federal Government 'became particularly interested in the matter. However, the application was accepted by us and the Federal Government was impleaded as a co rrespondent.

32. Although on behalf of the appellant the main attack was directed against the view taken by the High Court on the point of jurisdiction and its refusal to go into findings of fact and the entitlement of respondent No. I to the award of the seat, yet several other contentions were also raised before us by the learned counsel for the appellant. It was submitted that the proceedings before the Election Tribunal were in the nature of a criminal trial wherein a successful candidate whose election was under -challenge partook of the position of an accused and his election had to be sustained unless it was proved by the petitioner, on whom lay heavily the onus probandi beyond all reasonable doubt that a corrupt or illegal practice had been committed by the successful candidate or by his agent with his connivance. At the outset, placing full reliance on Yousaf Khattak's case (PLD 1973 SC 160), learned counsel submitted that the nature and scope of this Court's jurisdiction was the same as that of the High Court in second appeal under section 100, C. P. C. It was contended that the respondent had failed to discharge this onus of proving affirmatively that the pamphlet, Exh. 67-A, was printed and distributed with the connivance of the appellant. It was next submitted that in any case on a proper and reasonable interpretation, the printing and circulation of the pamphlet: Exh. 67-A did not fall within the definition of corrupt practice as contained in section 75(4) of the Ordinance. The finding that the appellant had enlisted the services of Mr. Nasimuddin a Government servant in the Archaeological Department in furtherance of his election was assailed on the ground that it was based on no evidence. Grievance was also made of the denial of an opportunity to the appellant to appear as his own witness as he was stated to have been inevitably prevented from appearing by his sudden and serious illness during his visit to Pindi necessitating his hospitalization. It was next contended that mere proposing of a candidate by a Government servant did not per se amount to an illegal practice in terms of section 76(2). Lastly the entitlement of respondent No. 1 to the award of seat was challenged on the grounds: Firstly, that there was no evidence which could justifiably form the basis of the finding that a large number of electors had been influenced by the circulation and distribution of the pamphlets on the eve of the election so as to tilt the balance in favour of the appellant. Secondly, that from the evidence adduced in support of this allegation, it could not be reasonably inferred that the voters of the appellant had demonstrated a deliberate perverseness in casting away their votes on the presumed knowledge of the disqualification incurred by the appellant on account of the corrupt practices. Reliance was placed on the following authorities: Rashid Ahmad

33. Rahmani v. Mirza Barkat Ali and 2 others (P L D 1968 S C 301). Lal Muhammad v. Muhammad Usman Kennedy (P. S. L. A. No. 138-K of 1974), Muhammad Usman Kennedy w. Lot Muhammad (P. S. L. A. No. 143-K of 1974), decided by this Court on 17-12-1974. Sanaullah v. Election Tribunal (P L D 1966 Lah. 97 ), Regena v. Bester (P L D 1966 Lah. 97 ), Regena v. Mayer of Tewueabury ((1868) 19 L T 851), Halsbury's Laws of England, Vol. 14 para. 549, p. 305, and Corpus Juris Secundum, Vol. 29, p. 676.

34. By way of a preliminary objection, Mr. Brohi appearing on behalf of respondent No. 1 attacked the maintainability of the appeal before the Supreme Court whose jurisdiction had been specifically excluded under section 64(3) of the Ordnance. He argued that the decision of the Tribunal which was a forum of special and exclusive jurisdiction and operated independently without any limitation go its powers was made appealable. before the High Court on whose decision absolute finality was conferred by the statute to the express exclusion of the Supreme Court's jurisdiction. It was argued that to challenge the order of tribunal no legally admissible argument had been advanced on the premises of which this Court could, justifiably interfere with the express finality conferred on it by the Law. In support /of the contention that the case was beyond the scope of the Constitutional jurisdiction of this Court, a three-fold argument was advanced: Firstly, that at the relevant time the country was governed by the 1962 Constitution by virtue of the P. C. O. and Article 171 of the Constitution which provided for the mode and mechanics of the resolution of election disputes was not made subject to or subservient to other provisions of, the Constitution and, therefore, this special provision was in delegation of the general powers of this Court contained in Article 58 of the Constitution. Secondly, that being subsequent in point of time the provision contained in section 64(3) of the Ordinance had an overriding effect on the former and Thirdly, that an explicit finality was conferred by the Law on the Tribunal's decision re-affirmed by. the High Court which even otherwise, this Court was always reluctant to interfere with, as held in Muhammad' Saeed and 4 others v. Election Petitions Tribunals and others and Mien Jamal Shah v. The Member Election Commission and others (P L D 1966 S C 1). The argument precisely was that Ordinance XIII of 1970 was promulgated by Yahya Khan under Article VIII of the Provisional Constitution Order which enabled the abrogated Constitution of 1962, to rule from the grave, to the extent of its . consistency with Martial Law Orders and Regulations, and the case had thus to be decided in accordance with Article 171(2) of the 1962 Constitution. It was argued that once the ouster clause "shall not be subject to appeal by the Supreme Court" occurring in subsection (3) of section 64 of the -Ordinance was held to be ultra vires and within the scope of Article 171 of 1S 62 Constitution, it would also take away the plenary power of the Supreme Court to interfere in election matters.

35. In this stance, Mr. Brohi was also supported by the Attorney-General, who argued that the election was held under the L. F. O. the foundational law on the subject read with Ordinance XIII of 1970 framed under the 1962 Constitution to which a temporary lease of life was given by the Provisional Constitution Order and therefore, the Ordinance was not a sub-Constitutional law and could be equated with the Presidential Order ousting the jurisdiction of the Supreme Court. The argument poses a very important question, namely, as to whether on a reasonable interpretation Ordinance XIII of 1970 could take away the jurisdiction of the Court. conferred by the Constitution.

36. Having carefully considered the above contentions, we are clearly of the view that they cannot prevail and have to be ruled oat. Even though the 1962 Constitution was abrogated by Yahya Khan, it was resurrected by the Provisional Constitution Order and thus allowed to govern the country, as its fundamental law. Although the elections were held under the L. F. O. which was a supra-Constitutional Order, yet it did not say a word about the determination of election disputes for which Ordi nance XIII of 1970 was promulgated under the Constitutional powers of ,t the President in compliance with the requirement of Article 171 of the 1962 Constitution. It has, therefore, to be characterised as a sub-Constitu tionll measure which cannot by any stretch of imagination detract or derogate from the Constitutional jurisdiction of this Court. To that extent, therefore, there is no escape from the position that subsection (3) of section 64 of the Ordinance is ultra vires of the Constitution to the extent of its contemplated ouster of the Supreme Court's jurisdiction.

37. Precisely similar contentions were raised before this Court in Yusuf Khattak's case. This was also a case of election petition arising out of the same general elections held under the L. F. O. read with Ordinance X111 of 1970 and applies with full force. My Lord the Chief Justice who delivered the judgment while repelling the arguments raised by Mr. S. M. Zafar observed as follows :-

38. It may be mentioned here that Mr. S. M. Zafar, the learned counsel appearing for the caveator (now respondent No. I), 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.

39. At the hearing of the appeal, he has again raised this as a preliminary objection. It is, therefore, necessary to dispose of this preliminary objection first.

40. 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 :-

41. "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."

42. By clause (2) of Article 290, an Act of the Federal Legislature includes "an Ordinance made by the President". Ordinance X111 of 1970 is also an existing law which has been continued in force by Article 280 .of the Interim Constitution. The question, therefore, that has to be decided is whether the bar created by subsection (3) of section 64 of Ordinance XIII of 1970 continues notwitstanding the provisions ~of Article 186 of the Interim Constitution giving to this Court jurisdiction 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 judgment and decision of the High Court in an appeal from the decision of an Election Tribunal.

43. I am unable to agree that Article 249 of the Interim Constitution! controls Article 186 thereof. Article 186 does not say that the Supreme Court shall have jurisdiction to bear and determine 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-constitu tional legislation, cannot, therefore, take away the jurisdiction given to this Court subsequently by the Interim Constitution itself without any reservation.

44. It is interesting to note that a similar question arose in the case of Muhammad Saeed v. Election Petitions Tribunal, West Pakistan, P L D, 1957 S C (Pak.) 91 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 Jurisdiction given to the Supreme Court by Article 160 of that Constitution wag 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 Saeed'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 not been clearly taken away by Article 186 of the Interim Constitution.

45. Learned counsel has, in this connection, also referred us to certain comments of Mr. A. K. Brohi in his book on the `Fundamental Laws, of Pakistan' regarding the decision in Muhammad Screed'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 two Court in Muhammad Saeed's case and the Supreme Court of India in ,the case of Hari Vishnu Kamath v. Ahmad Ishaq A I R 1955 S C 233.

46. The jurisdiction conferred on this Court by clear terms of the Con stitution itself cannot be whittled down on considerations of 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 finality 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 continue the exclusion of the jurisdic tion 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 put down or curtailed by a sub-Constitutional legislation."

47. The conclusions. arrived at by the Court may thus be summarised as follows :-

(i) That Ordinance XIII of 1970 is a piece of sub-Constitutional legislation.

(ii) That under its Constitutional jurisdiction, this Court does not call in question the election to an assembly but merely determines an appeal from the judgment of the High Court under Ordinance XIII of 1970.

(iii) That Ordinance XI1I could not take away the Constitutional jurisdic tion conferred on this Court by the Interim Constitution.

(iv) That the finality given by subsection (3) of section 64 to the appellate decision of the High Court in appeal from the order of Election Tribunal has been clearly taken away by Article 186 of the Interim Constitution.

(v) That although in matters arising out of the orders of Special Tribunals this Court unlike an ordinary Court of appeal acts with considerable restraint and does not ordinarily interfere to correct error of fact or law, unless some question of general public importance is involved or some fundamental principle relating to the appreciation of evidence has been disregarded, yet in exercise of its powers to do complete justice in any matter brought before it, it enjoys the jurisdiction to do all that the Court, from whose decision an appeal i brought before it. could do.

48. As regards the scope of the High Court's jurisdiction in an election appeal, although the consideration of its historical background, parliamentary origin and gradual transfer to Special Tribunal might be somewhat helpful in its appreciation, yet in the ultimate analysis the determination of precise limit and extent depend as rightly argued by Mr. Brohi on the correct interpreta tions of the relevant statutory provision contained in section 64 which has specifically provided for a right of appeal before the High Court from the decision of the Tribunal. The nature and scope of its jurisdiction would therefore, be coextensive with and subject to the limitations contained in section 100 of the C. P. C. and on the view taken by this Court in Yusuf Khattak's case it extends only to the correction of an error of Law. No doubt in the instant case according to the High Court the Tribunal had not transgressed its jurisdictional limits nor was it otherwise found to have erred on a question of fact or law and consequently the High Court found no justification to embark on a re-appraisement of evidence yet on a closer examination of the judgment one does come across a discussion and evaluation of the evidence adduced by the parties on the two issues involved and to that extent it would be equally competent for this Court to examine as to whether the appraisal revealed any disregard of fundamental principles. The precise observation on the point of jurisdiction made by the late Chief Justice is as follows :-

49. "It seems clear to me, therefore, that we should not, and indeed that we cannot, interfere with the decision of the Election Tribunal unless that interference is justified within the limits of section 100. On an examination of the evidence to which I shall briefly refer I am myself of the view that the findings of fact reached by the Tribunal were correct but, even if that be not so, mere incorrectness of findings of fact would not, clearly, attract our powers of interference."

50. The learned Chief Justice then proceeded to discuss the evidence of Muniruddin (P. W. 1) and also examined the effect of the failure of the appellant and respondent No. 1 to enter the witness-box sought to be explained away before us and we will presently deal with it.

51. As regards the non-appearance of the appellant and his failure to rebut in Court the allegation of corrupt and illegal practice levelled against him, 1 have already referred to the relevant observations made in the judgment .of the Tribunal and would endorse the finding that the appellant cannot ..make a legitimate grievance of his non-examination for which he was himself to blame. On 8-3-1973, when the Tribunal pointedly questioned the appellant as to whether he would like to enter the witness-box, he sought -,half an hour's adjournment to consider the question and then categorically ,informed the Tribunal that he would not like to appear as his own witness. .Earlier, on 7-3-1973, the appellant was supposed to produce two witnesses, Dhani Bakhsh and Abdul Qadir, to ensure service, the Tribunal had given dasti summonses to the appellant at his request. In spite of this, however, none of the two witnesses appeared. The Tribunal adjourned the case to the next day for their production. On 8-3-1973, counsel for the appellant submitted an application asking for yet another opportunity which was .declined. Against this order, an appeal was taken to the High Court. In the course of preliminary hearing of this appeal on 13-3-1973, counsel for respondent No. 1 who was holding a watching brief supported the appellant's counsel's prayer for grant of ten days to enable him to produce the witnesses and on his assurance, the learned Judges dismissed the appeal with the -following observation :-

52. "He agrees that he will support the request of the appellant to produce the witness in question within 10 days from today. We are ourselves satisfied that it would be fair course and if such a request is made to the Tribunal, we have no doubt it would grant the same."

53. It would be pertinent to observe that the appellant did not and in fact could not make any grievance before the High Court of his non-examination having voluntarily declined to offer himself as his own witness. It is in this background that when on the 2nd of April 1973, counsel for the appellant moved the Tribunal for the grant of time to enable him to appear as his own -witness, his application was dismissed with the following observation :-

54. "That stage is already over and even in the High Court no such move was made by the learned advocate during his oral arguments. The High Court had while ordering the, examination of witnesses not mentioned that respondent also be examined as a witness."

55. While dealing with the contention raised on behalf of the appellant on the .question of the non-production of Nasimuddin, the pivotal witness in the .case by respondent No. 1 and his own non-appearance in support of his case, it was observed by the learned Chief Justice as follows :-

56. "Even if we were to hold that an election dispute is in all respects similar to a criminal trial, the further proposition that Mr. Qasoori took for granted, namely, that it was the duty of Pyar Ali Allana therefore, to examine all the possible witness is, in my view a, non sequitur." Referring to the fact that Mr. Allana claimed no personal knowledge of the facts alleged by him, the learned Chief Justice observed

57. "On the other hand Mr. Brohi also criticised very severely the conduct of Syed Saeed Hassan in not offering himself as a witness. In my opinion the same test applies in both cases and it will be for examination, therefore, whether, upon that test, namely, that of having personal knowledge of the facts in question the non-examination of these two parties has any real effect on the case."

58. Reverting to this aspect in the latter part of the judgment, it was observed

59. "It seems to me that when a party does not claim any personal knowledge of the fact it can hardly be incumbent upon himself to enter the witness-box. The utmost that can be said is that an inference could be drawn from his non-examination that, if examined, he would not have given evidence which would have supported his side. But this is fkeely admitted by Pyar Ali Allana and he concedes that, if he hid gone t to the witness-box, he should not have been able to say that it was Nasimuddin who went to the Dacca Press or to the Decent Press or that, if he did go, he went on behalf of Syed Saeed Hassan. If, therefore, the sole purpose of the attack based upon his non-examination is to show that he himself would not have been able to give this evidence then it is unnecessary to make this argument because even otherwise that is the position: But, judged by the same test, the non-examination of Saeed Hassan by himself as his own witness is on a different footing. Surely Saeed Hassan could have come forward to say that he had never authorised Nasimuddin to go to those presses or perhaps even to say that he is not even known to Nasimuddin. "

60. The learned Chief Justice further went on to say that even if Pyar Ali had summoned Nasimuddin as a witness, he would not have supported his case on any view of the matter as he could be hardly expected to admit his part in having the pamphlet printed.

61. Having considered the relevant discussion, we are convinced that the appraisal of evidence by the Courts below does not reveal any disregard of a tundamental principle and is based on sound logical reasoning. Even though the appellant was suddenly taken ill on the night between the 25th and 26th of March 1973 in Rawalpindi and was inevitably prevented from appearing before the Tribunal on the 2nd of April 1973, as asserted by him. From the foregoing background, it is difficult to avoid an impression that the appellant never evinced any keenness to enter the witness-box and appeared to be waivering or indecisive and had therefore, to suffer the inevitable consequences of his non-appearance. He being the only important, witness who could rebut the allegations of his close association with Nasimuddin and enlistment of his services to promote his election by getting the pamphelt printed at his instance.

62. This brings us to the next contention that the Courts below had erred in law in coming to the conclusion that the allegation of corrupt and illegal practice stood established against the appellant without insisting on the requisite standard of proof as required of a charge in a criminal trial. While agreeing with the proposition that the analogy of a criminal trial would hold good in the matter of a corrupt or illegal practice which must be affirmatively proved to the exclusion of a reasonable hypothesis consistent with the non-commission of a corrupt practice and the benefit of doubt must go D to the person against whom a corrupt or illegal practice is alleged, we have already referred to the authorities mentioned in this context in the High Court's judgment, namely, Muhammad Saeed's case, Mian Jamal Shah's case (PLD 1966 SC 1) and Yusaf Khattak's case (PLD 1973 SC 91).

63. Having carefully perused the judgment of the Tribunal and the appellate, judgment of the High Court, we hardly find any justification in law to interfere with this concurrent finding on the two allegations falling within the mischief of section 75(4) and section 76(2), the former relating to the corrupt practice based on an appeal to religious sentiments and the latter an F illegal practice pertaining to the procurement of the assistance of a person in the service of Pakistan, for furtherance or hinderance of an election The statement of Mehboob Ali (P. W. 6) a brother-in-law of Nasimuddin coupled with the non-appearance of the latter as also of the appellant himself considerably facilitated the task of respondent No. 1 and in fact further credibility was lent to the unrebutted testimony of this witness. It cannot be disputed that Nasimuddin was a Government servant working in the Archaeological Department as Production Assistant being Incharge of Printing and Publication, and used to get his cards and magazines printed at the Dacca Press. It is in evidence that the appellant got printed pamphlets, Exhs. 67-B and 67-C, as also some other posters at the Dacca Press and made payment as indicated by the cash memo. Exh. 87, placed on the record. Mehboob Ali his brother-in-law identified the manuscript, Exh. 86, of the pamphelt, Exh. 67-A, as being in the handwriting of Nasimuddin. The undenied fact that not only the parents of Nasimuddin had proposed the seconded nomination papers of the appellant but some election meetings were also held in his house even though technically it stood in the name of his father, go a long way to show his close personal association with the appellant and interest to further his election. Surely, it was both in the interest of Nasimuddin to explain away the conduct as a Government servant as also that of the appellant to defend himself against the allegations to enter the witness-box. The statement of Mehboob Ali beside: being found to be convincingly consistent with the concomitant circumstances and natural probabilities was lent further support by the statements of Muniruddin and Wahajuddin P. Ws. of the Decent Press where the pamphlet, Exh. 67-A, was actually printed in the name of the Dacca Press. It was contended that the possibility of Nasimuddin and his brother-in-law Mehboob Ali P. W. of having deliberately colluded to credit evidence against the appellant could not be excluded from consideration, may be ruled out on the short ground that no such allegation was made in the written statement nor was any such suggestion made to Mehboob Ali in cross-examination. It cannot, therefore, be reasonably urged that it was a case of no evidence or that there was misappreciation of evidence.

64. As regards the question of connivance in the context of the background mentioned earlier and particularly having regard to the undisputed and the rather risky involvement of Nasimuddin in the election of the appellant being a Government servant one is inevitably led to the conclusion that he was deeply interested in the election of the appellant, proposed his name as a candidate and got the pamphlets distributed with his connivance. According to the dictionary meaning, connivance means consent, express or implied which in turn postulates knowledge. It would be obviously beyond the scope of this Court's jurisdiction to go behind the concurrent findings of fact that the pamphlets were printed and distributed with the connivance of the appellant. Even otherwise, no such ground was taken on behalf of the appellant before the High Court presumably for the reason that learned counsel appearing on behalf of the appellant had clearly stated before the Tribunal that he did not rely on the evidence led by the appellant in rebuttal before the Tribunal. An observation to this effect whose correctness was never challenged by the appellant appears in the judgment of the Tribunal at page 228 of Part 1.

65. We next proceed to examine the contention as to whether the publication and distribution of the pamphlet, Exh. 67-A falls within the mischief of section 75(4) as held by the Courts below. The relevant provisions read as follows :-

66. "A person is guilty of corrupt practice punishable with imprisonment for a term which may extend to two years or with a fine which may extend to Rs. 1,000 or with both, if he calls upon or persuades any person to vote or to refrain from voting for any candidate on the ground that he belongs to a particular religion, community, race, caste, sect or tribe."

67. According to the dictionary meaning "call upon" would mean to invite to do something. It may be in the nature of an order or command or alternatively that of a supplication or appeal. We have already referred to the contents of the poster in the earlier part of the judgment. The first part is in the nature of and is captioned an "appeal" while the other is in the nature of a warning and is captioned "khabardar" (Beware). It is not written in a proper and grammatical construction and reveals errors of syntax and idiom. The appeal .part when analysed purports to show. (i) That the "Jameatu: Ulmai Pakistan" supports Syed Saeed Hassan candidate for election to the Provincial Assembly seat in Constitutency No. 8. (h) That Khawaja Qamaruddin Sialvi, President "Markazi Jameatul Ulmai Pakistan" appeals to every Sunni Muslim that for the safeguards of his rights and his welfare in the hereafter that he should vote for the appellant. (iii) That Khawaja Qamaruddin Sialvi also prayed for the success of the appellant. (iv) That Maulana Mufti Muhammad Shafi Okarvi has also declared his support for p Syed Saeed Hassan.

68. The warning part purporting to have been issued by the Central Office of the "Jamaat" 27 Mohammadi Mansion Morlton Road Karachi, can be analysed as follows :-

69. "It appears to every member of the Sunni sect that he should beware of persons who are using the flag of the "Jamaat Ahle Sunnat" and having published forged letters (in favour of their support) are bringing a bad name to the "Jamaat Ahle Sunnat."

(ii) Some persons in spite of being non-Sunnis are claiming to have the support of the "Jamaat Ahle Sunnat", whereas

(iii) "Jammat Able Sunnat" has decided not to support any other candidate except Syed Saeed Hassan in Provincial Constituency No. 8.

70. The above analysis leaves hardly any manner of doubt that the pamphlet containing both an appeal and a warning falls within the mischief calling upon members of the Sunni sect to vote for the appellant and refrain from voting for a non-Sunni candidate purely on the ground of religion and therefore, clearly attracted the mischief of section 75(4). The considerations as to whether Kbawaja Qamaruddin Sialvi had in fact issued this appeal declaring his support for tl.e appella.tt or 'the r.:cital that Maulana Okarvi had declared his support for the appellant were factually correct or otherwise, is wholly immaterial, the contents of the pamphlet are tantamount to an appeal to the religious sentiments of the voters calling upon the voters to vote for one candidate and refrain from voting for the other on ground of belonging or not belonging to a particular religious sect. It is thus abundantly clear that once the allegations regarding the printing or distribution of the pamphlet, Exh 67-A, are found to have been established, it is inevitable to hold the appellant guilty of corrupt practice under section 75(4) and illegal practice under section 76(2). As observed earlier, there was enough material on the record in the form of circumstantial evidence that it could adequately fall within the definition of proof in the sense of a very higsh probability raising a strong belief that the printing and the distribution of the pamphlet was done with the connivance of the appellant whose conduct cannot be confined to mere acquiescence or subsequent condonation of the corrupt and illegal practices. No doubt evidence revealed the placing of two orders one for the printing of 400 posters and the other for that of 8000 posters and the lumpsum payment of Rs. 150 for both the items and to that extent apparently conflicted with the averment made in the election petition, but this does not affect the crux of the allegation which stands proved. It is hardly necessary for us to go into the wisdom behind the provisions contained in sections 75(4) and 76(2) for which the reasons are otherwise not far to seek. The provision contained in section 75(41 offer a safeguard against the exploitation of the electorate on ground of religious predilections which should not be allowed to affect or influence the political thinking of the people in a democratic process. G As regards the safeguard contained in section 76(2), the object obviously is to keep the stream of political process absolutely clean and unpolluted by bureaucratic interference of which this country has had more than enough.

71. From the above findings, it followed as a necessary consequence that the appellant having been found guilty of a corrupt and an illegal practice his election had to be declared void as rightly held by the Tribunal whose decision was affirmed in appeal by the High Court. No fault can, therefore, be found with this decision on the legal plane which is upheld. The appellant could not legitimately seek protection of the saving provision contained in section 65 (2) (a) as he did not enter the witness box to satisfy the Tribunal that the corrupt and illegal practices were not committed with his consent or connivance or that of his Election Agent and that he had taken all reasonable precaution to prevent their commission.

72. This brings us to the second part of the controversy, namely, as to whether the High Court was justified in law in upholding the Tribunal's decision in so far as these award of the seat to respondent No. 1 was concerned after the election of the appellant was declared void. This no doubt is a rather complicated aspect of the matter. In defence of the concurrent finding of the Tribunal and the High Court, Mr. Broth emphatically tried to argue that this Court had no jurisdiction to go behind the concurrent findings and he even attacked the competence and maintainability of the appeal on the ground with which we have already dealt in earlier part of the judgment.

73. Mr. Brohi was at pains to trace tire historical background of the Election Law and take us through the various stages of its development starting from the 1935 Act, the Corrupt Practices Order of 1936 followed by the Peoples Representation Act of 1949 in England which formed the basis of the Pakistan Peoples Representation Act of 1949. These were comprehensive laws dealing with all incidences of election matters. Then came the Representation or Peoples Act of 1957 which was followed by the National Assemblies Act of 1964 and finally we had Ordinance X111 of 1970. While comparing the different aspects of these Election Laws, which came in succession, Mr. Brohi argued that the concept of justice fn personem gradually dwindled and yielded place to justice inter partes. He pointedly drew our attention to the provi sions contained in the earlier laws in relation to scrutiny, the purge of the votes and ascertainment of majority of valid votes to entitle a candidate to the award of the seat. These provisions were conspicuously absent in Ordinance X111 of 1970. For the declaration of the election of a returned candidate to be void the usual condition that the corrupt or illegal practices should have materially affected the result of the election had also been significantly dropped. Reference was also made in this context to the caption "scrutiny" in Halsbury's Laws of England Volume 14, which clearly dealt with the process of the determination of valid votes by the inclusion of valid votes wrongly excluded and the exclusion of invalid votes wrongly included. Reference was also made to sections 74 and 144 of the Peoples Representation Act of 1957 and the English Peoples Representation Act of 1949, respectively, which provided for a similar process of scrutiny and striking of votes secured by corrupt or illegal practices. It was argued that the conspicuous absence of corresponding provisions in Ordinance XIII of 1.970 clearly indicated that the question of satisfaction as to entitlement to seat was left entirely to the discretionary jurisdiction of the Tribunal, a measure which according to him was fully in line with the Special Tribunal's independence and the finality conferred on its finding subject to appeal in the High Court. The crux of the argument was that under Ordinance X111 of 1970. The Tribunal was under no obligation to scrutinise the votes and go into their validity and therefore, the award of the seat in the instant case, all (sic.) namely, the claim of seat by the petitioner before the Tribunal and its satisfaction as to the entitlement of the petitioner to be declared elected as provided in section 66 of the Ordinance were adequately fulfilled and the Tribunal had given ample justification for his satisfaction which had to be read subject to the limitation contained in section 100 of the C. P. C. It was argued that the scope of inquiry by the Tribunal was rather limited and it was neither necessary nor possible to postulate as to how had the electors reacted to the poster so as to enable the Tribunal to scrutinize the votes with which responsibility it was not charged in determining the entitlement of the candidate declared to be elected which was left to his satisfaction. Learned counsel also drew our attention to the difference between American concept and the English doctrine in this regard. It was contended that Ordinance XIII of 1970 marked a clear and calculated departure from the earlier provisions on the subject relating to scrutiny and purging of votes by addition of wrongly excluded or substraction of wrongly included votes as the case might be. In view of this changed concept, it was contended that paragraphs 543 and 549 of Halsbury's Laws of England Volume 14 were not attracted. The burden of Mr. Brohi's argument was that election laws were often characterised as hard and harsh laws but had to be construed and applied rather strictly. It was pointed out that under the scheme of the Ordinance, which contained wholly different statutory provisions paragraph 549 of Halsbury's Laws of England bad no bearing and was wholly irrelevant. He bad also the confidence to urge that this Court's decision in Yusuf Khattak's case needed reconsideration.

74. We agree with Mr. Brohi that the determination of the question of the award of the seat to respondent No. 1 after the election of the appellant was declared void and rightly so, depended on the correct interpretation of section 66 of the Ordinance which reads as follows:-

75. "66. Ground for declaring a person other than a returned candi date elected.-The Tribunal shall declare the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, if it is so claimed by the petitioner or any of the respondents and the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected."

76. No doubt unlike the provision contained in section 67, where the election has to be declared as wholly void, having been materially affected by either the non-compliance with the provisions of the Ordinance and the rules or the prevalence of extensive illegal practices at the election, no such conditions have been laid down in the provision contained in section 66 reproduced above and from its plain reading, it is clear that for the award of the seat to another candidate only two requirements are to l', be satisfied: firstly, the petitioner or any of the respondents should claim the seat, and secondly, the Tribunal should be satisfied as to his entitlement to be so declared elected, which in turn would depend on several considera tions including recriminatory petition and the evidence led in support of the allegation contained therein. For a proper and reasonable interpretation of the provision, one has to closely examine in the first instance the connotation and implication of the two key expressions "satisfaction" and "entitlement". "Satisfaction" is by no means a term of art and appear to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or indecision or oscilliation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart. from the "legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum 'satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince.

77. "Entitlement" obviously refers to the determination of a person's right to a certain position, office or status based on the correct assessment of his claims in the light of the legal requirements and prescribed qualifica tions. According to the Stroud's English Dictionary, the expression "entitled to" used in relation to property has been described as most comprehensive and under it all kinds of property will pass in which the person spoken of has any title at law or in equity. The word "entitled" like 'vested' prima facie refers to the right, and not to the possession. According to the Oxford English Dictionary, "entitle" has been used in the sense of furnishing with a title or giving a rightful claim to possession or designation etc. According to Black's Law Dictionary "to entitle" in its usual sense is to give a right or title.

78. In this case considerations disposing to the satisfaction of the Tribunal as to the entitlement of respondent No. 1 to the award of the seat were Firstly, that there was no question of ignorance on the part of the voters in regard to the disqualification incurred by the appellant and they fully understood the implications of the pamphlet in question of which the appellant was the sole beneficiary and respondent No. 1 its solitary target. Secondly, that the pamphlet had great impact on the voters and the entire Constituency was affected by it tilting the balance in favour of the appellant and against the respondent. It was observed that the advantage which accrued to the appellant as a result of the pamphlet falsely claiming thereby the support of the two religious divines and a ghost organization was indeed very great and yet despite this the appellant could manage to secure only 3000 votes more than those polled by respondent No. 1 and but for the circulation of the pamphlet the likelihood of respondent No. 1 having swept the poll could not be ruled out. The satisfaction of the Tribunal as to the entitlement of respondent No. 1 was founded on these grounds. While dealing with this aspect of the matter, the learned Judges of the High Court found that Mr. Pyar Ali Allana had indeed laid a claim to the seat, that there was no word of limitation in the section which spoke of the determination of a majority of valid votes or the result of election having been materially affected. It was further observed that "unless it was possible to hold that the Tribunal was in error on the point of law fn reaching the conclusion that it ought to award the seat to the candidate having the next highest number of votes who has claimed the seat, we cannot interfere with his decision".

79. The provision as worded according to the learned Chief Justice did not postulate any arithmetical calculation or rectification of a counting mistake so that it could be stated with certainty that respondent No. 1 had polled the majority of valid votes. For all these reasons, the conclusion reached by the learned Chief Justice was as follows

80. "It seems to me, therefore, that once the Tribunal holds that a returned candidate has been invalidly elected then it must award the seat to the person having the next highest number of votes if that candidate has made such a claim."

81. We have already referred to the arguments advanced by Mr. Brohi in defence of this proposition and would now refer to the assistance rendered by the learned Attorney-General. On the point of entitlement to a seat, the learned Attorney. General submitted that a candidate who got less than 121 per cent votes resulting in the forfeiture of his security, even though he polls the highest number of votes next to the returned candidate whose election has been declared void, should not be declared as elected as that would be simply atrocious even though this may not be a statutory disqualification. If, however, the candidate securing the next highest number of valid votes did not suffer from this disqualification, he should normally ,declared as elected unless it could be shown in recrimination that his election could also have been declared void on any of the grounds mentioned in section 65, the foremost requirement of course being that he must have claimed the seat.

82. As regards the Attorney-General's submission that a person securing less than 12 % should not be declared elected such a situation could possibly arise where either the majority of electors has stayed away and refrained from voting or alternatively there is a large number of contesting candidates of more or less the same calibre and enjoying the same measure of popularity and thus dividing the votes amongst themselves with small variation and obviously in such a case the successful candidate would poll only a fraction of the total polls which by and large would be evenly distributed amongst a host of contesting candidates. Apparently, this would amount to making a mockery of representation which would be rendered farcical. However, we, would presume that the law-giver should be wholly alive to a situation like this and unless there is a specific provision in the law itself that the successful candidate should enlist a certain minimum number of the total votes polled, it would not perhaps be proper for this Court to give a positive finding and lay down a legal principle in this regard.

83. Having considered the statutory provision contained in section 66 of the Ordinance and the interpretation placed on it by the Tribunal and the High Court, we find that the proposition as enunciated, namely, that once the Tribunal holds that a returned candidate has been invalidly elected then it must award the seat to the person having the next highest number of votes if that candidate has made such a claim is much too widdely worded and does not correctly reflect the intention of law-giver, namely, the determination of the entitlement to the seat. Our reasons are as follows:-

(i) If this were in fact the intention of the law-giver, it would have explicitly and unequivocally said so rather than leave it as some thing to be inferentially drawn from an expression liable to be variously interpreted.

(ii) The two expressions "satisfaction" and "entitlement" on a proper and reasonable interpretation presumed and implied scrutiny and purge of the polls.

(iii) The view expressed by the High Court and canvassed before us is completely repugnant to the letter and spirit of the relevant provisions contained in all Election Laws including Ordinance XIII of 1970 and in fact runs counter to its entire scheme.

84. I have already tried to interpret the expressions "satisfaction" and "entitlement" as used in this context which according to the view taken by us amount to determination of right. A candidate would thus be entitled to the award of a seat vacated by the returned candidate only if he is M found to have polled the next highest number of valid votes after taking into account the allegations contained in the recriminatory petition if any. Under section 36 of the Ordinance, it is the valid votes secured by each candidate that are to be put in a separate packet. It is common knowledge that the fate of an election might be determined by just one vote this way or that way. People have won the election by the narrowest of margins. This clearly goes a long way to show the importance of each single vote polled by a candidate. In fact the object behind the appointment of polling agents upon section 22 of the Ordinance is to be safeguarded against double voting, personation, violation of secrecy and breach of the relevant rules etc. The Presiding Officer has been placed under an obligation to place in a separate packet tendered ballot papers, challenged ballot papers and spoilt ballot papers etc. furnishing a detailed statement of the count and the ballot paper accounts. Under section 37, the Returning Officer has to prepare a consolidated result of the count. While doing so, he has been authorised to include votes cast in favour of a contesting candidate which according to him were wrongly excluded by the Presiding Officer, or vice versa. Significantly enough under subsection (4) of section 37, he is required to show separately the ballot papers rejected by him. On the declaration of the result, the Returning Officer has to submit to the Commission a report of the election in the prescribed form together with a copy of the consolidated statement. Section 42 provides for the transmission of documents by the Returning Officer to the Commission containing inter alia separate packet of tendered ballot papers, and challenged ballot papers alongwith their respective lists. We now come to the stage of filing a petition, which under section 52 shall contain inter alia full particulars of corrupt and illegal practices and other illegal acts alleged to have been committed during the election furnishing details or the person, date and place. Corrupt practice and illegal practice have been defined and detailed in sections 75 and 76 respectively. Then follow the details of illegal acts such as bribery, personation, undue influence etc. Vote or application for a ballot for voting by a person not qualified or disqualified from voting casting of vote by a parson more than once in the same polling station, voting or applying for a ballot in more than one polling station by the same person are some of the illegal practice mentioned in section 76. Personation has been defined under section 78 as to vote or apply for a ballot paper for voting as some other person whether living, dead or fictitious. The fact that an election could be challenged on allegations of corrupt practice, illegal practice or illegal act coupled with the fact that the Presiding Officer as also the Returning Officer has been placed under an obligation to maintain separate record of all kinds of ballot papers for onward transmission to the Commission so as to be made available to the Tribunal during the trial of an election petition, clearly show that the Tribunal is not only authorised but is duty bound to give his finding on each allegation pressed before him including those of wrong inclusion or exclusion of a ballot paper. A reference to the relevant rules, namely, the National and Provincial Assemblies (Elections Rules), 1970, makes the position further clear. It would be advantageous to reproduce rule 25 dealing with consolidation of results. It reads as follows :-

85. "25. Consolidation of results.-(1) The Returning Officer shall con solidate in Form XIV the results of the count furnished by the Presiding Officers.

(2) Before consolidating the results, the Returning Officer shall open the packet containing the ballot papers excluded from the count by the Presiding Officer as also the packet containing the challenged ballot papers and scrutinise each such ballot paper as we excluded from the count by the Presiding Officer.

(3) If the Returning Officer finds that any ballot paper excluded from the count by the Presiding Officer should not have been so excluded, he shall count it as a valid ballot paper cast in favour of the contesting candidate for whom it was cast

86. Provided that in so doing the Returning Officer shall not mix up the ballot papers taken out from the packet labelled "challenged ballot papers" but shall keep the entire lot of challenged ballot papers in a separate packet.

(4) The Returning officer shall reject a ballot paper hereinafter referred to as "rejected ballot paper" recording thereon the fact of such rejection if it suffers from any of the defects mentioned in subsection (4) of section 36.

(5) If any contesting candidate or election agent objects to the rejection of a ballot paper the Returning Officer shall add to his endorsement the words "rejection objected to".

(6) In consolidating the results of the count, the Returning Officer shall record the number of valid ballot papers cast in favour of each contesting candidate as shown by the Presiding Officer in the statement of the count unless the figures thereof have undergone a change as a result of recount under subsection (5) of section 37, in which case he shall record the figures as arrived at after the recount.

(7) Before recording the number of valid votes in the consolidated statement against the name of each contesting candidate, the number of ballot papers, if any, which were treated by him as valid but bad been excluded from the count by the Presiding Officer shall be taken into account including those treated as valid from the challenged votes.

(8) The ballot papers rejected by the Returning Officer under sub-rule (4) shall be shown separately in the consolidated statement.

(9) The consolidated statement shall be go completed that the figures in respect of one polling station are completed before the incorporation of the figures in respect of the other.

(13) The Returning Officer shall deal with the postal ballot papers in the following manner

(i) no cover in Form X containing a postal ballot paper received by the Returning Officer after the expiry of the time fixed in that behalf shall be opened and no vote contained in any such ballot papers shall be counted ; . . . . . . . (x) (c).

87. Under sub-rule (4), the Returning Officer has to prepare a list of rejected ballot papers under sub-rule (5) ibid, he has to add an endorsement which objection has been rejected to. Under sub-rule (7), he has to give a separate list of ballot papers treated as valid by the Presiding Officer but invalid by him or vice versa including those treated as valid by him from the list of challenged votes.

88. It is simply inconceivable that having regard to the extraordinary importance of each single vote, the law-giver should have in utter disregard of this paramount consideration either deprived the Tribunal of the founda tional jurisdiction of going into validity of votes cast in favour of a candidate thus investing the Returning Officer with unchallengeable authority to finally determine the question of validity or invalidity of votes so as to make his findings completely sacrosanct or left the matter to his discretion whose arbitrary exercise could not be interfered with under the restricted scope of the High Court's appellate jurisdiction. The fact that nothing could be farther from the mind of the law-giver stands further established by the provision contained in section 68 which prescribes a mode of decision in the event of equality of votes after the conclusion of the trial before the Tribunal, by having recourse to a fresh poll to be taken in respect of the said candidate subject of course to the right of appeal by the aggrieved party. This provision furnishes a complete answer to the argument advanced by Mr. Brohi in defence of the view taken by the Tribunal and the High Court inasmuch as there could be no question of equality of votes after the trial of the petition unless the Tribunal had varied the previous position by addition or subtraction of votes. Lastly, the interpretation placed by the Tribunal and the learned Judges of the High Court completely ignores the well-settled principle contained in paragraph 549 of Halsbury's Laws of England, Volume 14, which has been approved and cited in several judgments of this Court and was also sought to be distinguished by the Tribunal as well as the learned Judges of the High Court on the ground that it could not go with the relevant 'provision contained in section 66 of the Ordinance. It may be observed with respect that on the view taken by us we hardly find any point of conflict between the aforesaid provision and the principles laid down in Halsbury's Laws of England adopted and approved by this Court in several authorities. The well known principle in substance is that "votes given for a candidate who is disqualified could be deemed to have been cast away only where the disqualification was so notorious that the electors could be presumed to be aware of it. It must be founded on some positive and definite fact existing and established at the time of poll so as to lead to the reasonable inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes.

89. Reverting to the facts and circumstances of the case before us we find that it was the own case of respondent No. 1 that the pamphlets were printed only a day prior to the poll. As regards their circulation, only two witnesses, namely, lbrar Hussain and Sabir Shah were examined. Both of them claimed to have seen them being distributed on the evening preceding the day of the actual poll. Sabir Shah admitted to be a worker of respondent No. 1. Thus having regard to the much belated time of printing and distribution of the pamphlet, namely, the eve of the poll and the conspicuously meagre evidence on the point of circulation, we are of the view that it did not justify the inference drawn by the Tribunal that but for the pamphlet respondent No. 1 would have swept the polls. Even otherwise, having regard to the level of legal knowledge and awareness of the average voter of this country, it cannot be disputed that the disqualification was not so apparent and notorious as to justify the inference of wilful perverseness on the part of the electors who voted for the appellant to cast away their votes. The disqualification was certainly based on "complicated facts and legal arguments" and as such did not justify the disenfranchisement of about 10,000 voters. The same view was taken by this Court in a recent judgment delivered whereby Petitions for Special Leave to Appeal Nos. K-138 (Lal Muhammad v. Usman Kennedy etc' ) K-143 of 1974; (Muhammad Usman Kennedy v. Lal Muhammad etc. arising out of the same election to the Sind Provincial Assembly and directed against the appellate order of the High Court were dismissed vide judgment dated 17-12-1974 wherein a reference was also made to the High Court's judgment in the instant case. It appears, however, that in its judgment in the latter case which was upheld by this Court, the High Court did appreciate that it had not taken note of this Court's decision in Rashid Ahmad v. Barkat Ali (PLD 1968 SC 301) wherein the general principles contained in paragraph 542 of Halsbury's Laws of England Volume 14 were approved. This would obviously show that the High Court was not firm about the correctness of the view ex pressed by it in this case and had impliedly accepted it to be erroneous. In Rashid Ahmad's case, an election matter arising under the Electoral College Rules, leave was granted by the Supreme Court under Article 58 (3) of 1962 Constitution to consider the question arising out of the alleged breach of rule 22(3) of the Electoral College Rules and further whether the Tribunal acted with lawful authority in awarding the seat to the candidates securing the next highest number of votes. This would be relevant both on the point of jurisdiction of the Supreme Court in those matters and the principle contained in paragraph 549 of Halsbury's Laws of England Volume 14. In Federation of Pakistan v. Ali Ihsan (PLD 1967 SC 249), it was held by this Court that although normally the Supreme Court does not go behind a concurrent finding of fact given by the trial Court and the High Court unless it is vitiated by an error on a point of law, this rule of practice may be legitimately departed from in suitable cases. Earlier in Muhammad Saeed's case (P L D 1957 S C (Pak.) 91), a case under the 1956 Constitution, it was held on the question of jurisdiction that by virtue of the provision of Article 160 of the Constitu tion all exercise of judicial power except by Military Tribunal was liable to correction by the Supreme Court and the declaratory judgment of the Election Tribunal even though in the form of. a report to the Governor was appealable to the Supreme Court by special leave under Article 160. It was further held that the finality if any attaching to the Governor's order was taken away by Article 160 of the Constitution. In -Sanaullah v. Election Tribunal, Gujrat and others (PLD 1966 Lah 97) an election dispute based on Electoral College Act and Electoral College Rules, the disqualification of a minor candidate was declared to be void and the votes cast in his favour were treated as being simply wasted or thrown away. It was held that since in the Electoral Roll, the candidate's age was mentioned as 28 years, the voters had no knowledge of the disqualification attaching to him at the time of his filing the nomination papers which were accepted and therefore, while Tribunal's decision in declaring the election of this candidate was upheld his further declaration that the candidate securing the next highest number of votes was duly elected, was found to be unsustainable in law on the basis of Halsbury's Laws of England Volume 14 and Vashist Narain Sharma v. Dev Chandra and others (AIR 1954 SC 513).

90. In the circumstances, therefore, the seat should not have been awarded to respondent No. 1 and to that extent we set aside the judgment of the High Court and direct that the election be held afresh. The appeal partly succeeds to that extent and the parties are left to bear their own costs.

91. Before taking leave of this case, it may be observed that we have not considered it necessary to examine the plethora of case-law cited on behalf of the parties most of which proceeded on the interpretation of different statutory and Constitutional provisions in the context of different facts. s. A. H. Appeal partly accepted.