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P L D 1963 SC 704

BADRUL HAQUE KHAN

V/S

ELECTION TRIBUNAL DACCA AND OTHERS


Constitution of Pakistan (1973), Articles 199, 62, 222 & 268:
(Constitution of Pakistan (1962) Articles 98, 103, 158 & 225)

Constitution of Pakistan (1962), Article 98 (Article 199 of 1973) — Circumstances necessary for exercise, by High Court, of power conferred under Article 98 (Article 199 of 1973) in regard to decision of Election Tribunal — (Treating at elections).

The power of the High Court to interfere with the decision of the Election Tribunal on the point of bribery depended upon the following circumstances, namely :-

(1) it should be satisfied that no other adequate remedy is provided by law;

(2) the application should be by an aggrieved party;

(3) there should be an act done or proceeding taken by a person performing functions in connection with the affairs of  inter alia the Centre; and

(4) such act or proceeding should have been done or taken “without lawful authority”.

Writ — Certiorari — Act of judicial or quasi-judicial body can be held to be “without lawful authority”only after bearing in mind nature of authority vested in such body — Admission of inadmissible evidence — Not an act “without lawful authority” “in every case” — Erroneous decision on law point, not necessarily “without lawful authority” — Constitution of Pakistan (1962), Article 98 (Article 199 of 1973). [pp.717, 735, 736] J,P,& R

Representation of the People Act (XXXI of 1957), Section 116 — “Existing Law” within meaning of Article 225, Constitution of Pakistan (1962) (Article 268 of 1973)

Constitution of Pakistan (1962), Article 144 (Article 222 of 1973) — National and provincial Assemblies (First Election) Order (4 of 1962).

Constitution of Pakistan (1962), Article 103 (Article 62 of 1973) — Laws (Continuance in Force) Order (1 of 1958).
CRAWFORD ON STATUTORY CONSTRUCTION (1940) PARA 137 considered. [pp. 721, 732]K seq. N.O.

Per Carnelius, C.J. –

With reference to issue No.10 relating to bribery by treatment at the meeting on the 16th April 1962, the judgment of the Division Bench contains a lengthy examination of the entire evidence and circumstances in the case, which was trated, quite rightly, as falling within the principles applicable to the trial of criminal charges. The attentioin of the Division Bench was invited to the fact that the case before them could not be dealt with on the principles relating to writs of ceritorari, but in view of the new provision in Article 98 (Article 199 of 1973) of the Constitution of 1962, it was the duty of the person seeking the writ to establish that the case fell within the terms of one or other provision in the Article. It was common ground that the power of the High Court to interfere with the decision of the
Tribunal on the point of bribery depended upon the following circumstances,namely :-

(1) it should be satisfied that no other adequate remedy is provided by law;

(2) the application should be by an aggrieved party;

(3) there kshould be an act done or proceeding taken by a person performing functions in connection with the affairs of inter alia the Centre; and

(4) such act or proceeding should have been done or taken “without lawful authority”.

When these conditions are satisfied the High Court under Article 98 (Article 199 oif 1973) has power to declare regarding the act or proceeding in question that in coinsequence of its being done or taken without lawful authority, it is of no legal effect. Dr. Nasim Hasan Shah in the course of his argument invited our attention to the fact that under Section 81 of the Representation of the People Act, an appeal lies to the High Court from a Tribunal, but he had to agree that in this respect, the provisions of that Act have been materially affected by the terms of the new Constitution, Article 171 of which provides that provision may be made by law for disputes like the present arising in connection with an election “to be finally determined
by a Tribunal established for that purpose” and this Article prohibits reference of any such dispute for decision otherwise than under such law. The President’s Order No.4 of 1962 is such a law, and there seems no escape from the conclusion that determination under that Order, such as the present, is a final determination against which, in the absence of clear expression, no appeal lies.

Article 103 (Article 62 of 1973) enumerates in sub-Article (2) grounds of disqualification of which ground (e) reads as follows:-

“he is otherwise disqualified from being a member of that Assembly by the Constitution or by or under any law”.
There is no question but that if the Representation of the People Act, 1957 survived the Revolution of the 7th October, 1958, as we have held it is now existing law within the meaning of the new Constitution under Article 225 (Article 268 of 1973).

Per Kaikaus, J. –

The power of the Parliament of 1956 to enact the Representation of the People Act was derived from Article 144 (Article 222 of 1973) of the Constitution of 1956 which runs :

“144. Subject to the provisions of the Constitution, Parliament may by Act provide for –

(a) the delimitation of constituencies, the preparation of electoral rolls, the determination of objections and the commencement of electoral rolls;

(b) the conduct of elections and election petitions; the decision of doubts and disputes arising in connection with elections;

(c) matters relating to corrupt practices and other offences in connection with elections; and

(d) all other matters necessary for the due constitution of the National Assembly and Provincial Assemblies;

but no such law shall have the effect of taking away or abridging any of the powers of the Election Commission under this part.”

The power to enact the Representation of the People Act falls under clause (d) of this Article which clause refers specifically to the “National Assembly” and the “Provincial Assemblies”, but it should be clear on a reading of Article 144 (Article 222 of 1973) as a whole that even the other clauses apply only to the National and the provincial Assemblies. These expressions obviously refer to the National Assembly and the Provincial Assemblies created by the Constitution of 1956. So there was no jurisdiction at all under clause (d) of the Article to enact a law for any Assembly except the Assemblies created by the Constitution of 1956.

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