P L D 1963 Supreme Court 704 (PLP)

CORNELIUS, C. J.‑--This is an appeal by one Badrul Haq Khan brought under special leave and calls in question a writ issued by a Division Bench of the Dacca High Court to quash an order of the Election Tribunal at Dacca whereby the election of the respondent Mr. Jamalus Sattar to the National Assembly from a constituency in the Chittagong district had been declared void. The Tribunal which consisted of three Members dealt with a number of issues, of which two are relevant for the purposes of this judgment and are reproduced below :‑ "

4. Was the opposite‑party No. 1 (Mr. Jamalus Sattar) disqualified from being a candidate under section 116 (1) of Act (XXXI of 1957)?

10. Did the opposite‑party No. 1 (Mr. Jamalus Sattar) order and supply tea and sweets to the electors in the meeting held on 16‑4‑62, and aid it amount to bribery ?" Section 116 of the Representation of the People Act, 1957, provides that a person who "by himself or by any person or body of persons in trust for lairs for his benefit or on his account, (he) has any share or interest in a contract for the supply of goods to, or for the execution of any works or the performance of any services undertaken by the Government" shall be "disqualified for being elected or being a member of the National Assembly." It was brought out in the evidence that Mr. Jamalus Sattar had carried out large contract works for the East Pakistan Water and Power Development Authority, and "as an enlisted contractor in the "C & B Department" of the East Pakistan Government, but at the relevant time he did not have any share or interest in any contract with the latter Department. In his petition, Mr. Badrul Haq Khan did not contend that being a contractor for the Provincial WAPDA was equivalent to being a contractor for Government. The Tribunal held unanimously that the fact of Mr. Jamalus Sattar not being interested in any existing contract with the Government at the time of the election did not avail to prevent the application of the prohibition because "after he gets through the election he may be free to acquire some tangible interest in Government contracts on the strength of his being an enlisted contractor." It was held that the prohibition extended to persons who could possibly have an interest in such contracts. On the point of bribery by treating, the facts placed before the Tribunal were that there was a meeting held on the 16th April 1962, that is some 12 days before the election, at Anwara village which is Mr. Jamalus Sattar' s home village, at which the candidates were to meet the voters and to make known their policies through speeches. As required by the governing instru ments, this meeting was presided over by a Government official, namely, Mr. B. I. Choudhury, a Munsif. The case for the petitioner was that at this meeting which was attended by some 300 persons of whom about 107 were voters, tea and sweets were provided to the assembly and that this was done by Mr. Jamalus Sattar. Two of the Members of the Tribunal namely, the Chairman Mr. Justice Asir, and a Member Mr. Muhammad Aziz held that the alleged treating bad been proved by evidence and that it was meant for the electors among others and was lavish. The treating took place at "a very material time" for the purpose of inducing the voters because the election was to be held in another 12 days and it was significant that entertainment was given by Mr. Jamalus Sattar "at his home centre." On these grounds, it was found that the entertainment was within the meaning of "bribery" under Article 62 of President's Order No. 4 of 1962 viz., the National and Provincial Assemblies (First Election) Order, 1962, having beer, arranged at the instance of Mr, Jamalus Sattar for the purpose of inducing the electors of Anwara Centre to vote fur him or to refrain from voting in favour of his rival. The third Member thought there was "no evid ence in the eye of law" and that the petitioner Mr. Badrul Haq Khan had not been able to discharge the onus of proving that the entertainment was offered by Mr. Jamalus Sattar. This Member went further and thought that even if, for the sake of argument, it be assumed that Mr. Jamalus Sattar provided the entertainment that would still not suffice to prove the corrupt practice of bribery and gave the following reasons. He said firstly that merely giving two or three items of sweets in a place and a cup of tea to voters and others at a "projection" meeting was not sufficient for holding that this was done in order to induce an elector or electors to vote or refrain from voting. A guilty purpose must be established separately. This Member thought that the entertainment offered was not excessive and that it was "extremely doubtful whether this entertainment at Anwara on 16‑4‑62, had any continuing operation or influence on the voters who cast their votes at the election on 28‑4‑62." He mentioned that the entertainment was open, that is it was extended to electors as well as non‑voters, and even the rival candidates as well as the candidates for the Provincial Assembly. Referring to a passage in Halsbury' s Laws of England, Volume 14, 3rd Edition and Article 386, he came to the conclusion that the treating in the case was an isolated instance and that it could not be regarded as a corrupt practice. In consequence of the majority finding on this ground as well as of the unanimous finding on the point under section 116 of the Representation of the People Act, 1957, the Tribunal reported that the election of Mr. Jamalus Sattar should be declared to be void. Thereupon, Mr. Jamalus Sattar moved a writ in the High Court under Article 98 of the Constitution, to have the order of the Tribunal declared void. The questions raised in argument before the High Court related to issues 4 and 10 before the Tribunal, which have been reproduced above. The High Court reversed the finding on the first issue on the ground that in order to operate as a disqualification under section 116, there should be a present interest in a Government contract and that the danger that a person after being elected might engage in Govern ment contracts while being a Member of a Legislative Assembly was illusory since the prohibition operated against such a person continuing to be such a Member. The Division Bench found that the Tribunal had seriously misdirected itself in applying the law of section 116 to the facts of the case and thereby exceeded the jurisdiction vested in it, and its finding was held to be vitiated by error on the face of record in this respect. A question had been raised before the Division Bench that section 116 aforesaid was without force in relation to the National Assembly brought into being under the Constitution of 1962, because it had been passed with reference to other Assemblies, namely, those provided by the Constitution of 1956, which was no longer in force. It was stressed before the Division Bench that the new National and Provincial Assemblies were "in essence and in substance completely different Assemblies from those contemp lated by the Constitution of 1956." It was further urged that in President's Order No. 4 of 1962 and subsequent Orders, there was contained a complete code analogous to that constituted by the Representation of the People Act of 1957, and consequently all the provisions of the latter Act must be deemed to have been repealed by implication. The learned Judges expressed no opinion on the argument affecting the validity of section 116, because they thought it "unnecessary". They did however examine whether the facts alleged and proved by the petitioner under issue No. 10 were sufficient to bring the case within that section. This matter has been placed before us in a studied argument by Dr. Nasim Hasan Shah appearing on behalf of the Attorney‑General of Pakistan, who was directed by the Court, in consequence of a move made by the Government of Pakistan, to appear at the hearing of this appeal to state the views of the Government in respect of the existence and validity of the aforesaid section. It seems plain that before entering upon an examination as to whether that section operated to disqualify Mr. Jamalus Sattar, it was necessary for the High Court first to examine whether the section was still in force, and we propose to make such examination in the course of this judgment. 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 treated, quite rightly, as falling within the principles applicable to the trial of criminal charges. The attention 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 certiorari, but in view of the new provision in Article 98 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 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." When these conditions are satisfied the High Court under Article 98 has power to declare regarding the act or proceeding in question that in consequence 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. Two other conditions, of those enumerated above are satisfied in this case, namely, that there has been a proceeding taken and an act done in consequence, by the Tribunal, which can correctly be described as a corporate body performing functions in connection with the affairs of the Centre. The last condition necessary to justify their action taken by the High Court is that such act or proceeding should have been done or taken without lawful authority. It had been contended before the High Court that a mere misconception by the inferior Tribunal on a point of law was not sufficient for the grant of certiorari and further that there was high authority for the proposition that such a Tribunal cannot be deemed to exceed its jurisdiction, merely because it admits illegal evidence or rejects legal evidence or misdirects itself as to the weight of the evidence or even if it convicts without evidence. ,The learned Judges met the argument in this way. They thought that the bar against certiorari could not prevail where the pro ceedings were "irregular on the face of the record" and there was equally high authority for saying that certiorari should issue to correct a decision by an administrative body, which no reasonable body could ever have come to. The relevant passage in the judgment of the High Court indicates clearly that the learned Judges found it possible to meet every argument advanced by Mr. A. Sobhan for the present appellant, whose contentions were founded upon passages in the relevant monograph in Halsbury' s Laws of England, by reference to other passages in the same monograph and this sufficiently indicates that to seek for a clear line enabling decision in a commentary of that kind is apt to be unprofitable. The learned Judges declared their opinion that the decision of the majority of the Tribunal was such "as could not have been reasonably arrived at by a Tribunal or a body of Tribunal." They thought the case was not one of mere mis appreciation of evidence but was one where there was no evidence worthy of consideration and in such a case certiorari lies. Dealing with the question whether the action they contemplated was within the terms of Article 98, they appreciated that they were not sitting in appeal or revision over the Tribunal's decision but were interfering with it because "almost all" of the following tests were satisfied in the case, namely :‑ (1) the Tribunal had assumed jurisdiction which had not been conferred upon it; (2) it had exceeded such jurisdiction as was vested in it; (3) by erroneous decision of law and fact it had wrongfully exercised discretion which did not belong to it; and (4) there was error apparent on the face of the record, which had occasioned failure of justice. The faults which the Division Bench found with the decision of the majority of the Tribunal have been enumerated by them as under "It is, therefore, clear that the Tribunal: (1) has taken into account evidence and circumstances which should have been discarded by it; (2) has not taken into consideration matters which should have been considered by it; (3) has misdirected itself with regard to the law upon which it could assume jurisdiction to disqualify the petitioner from membership of the Assembly; (4) has misplaced the onus on the present petitioner on material points; (5) has failed to act in a judicial spirit and manner; (6) has failed to take proper notice of the fact that the entertainment at Anwara is a solitary instance of treating; (7) has not considered the vital question that there is no evidence that the petitioner caused it to be known that he was responsible for such entertainment or that the votes knew who their host was," We have been taken through the record of the case and have heard argument from Mr. Ahmad Sobhan for the appellant an Mr. S. R. Pal for the respondent Mr. Jamalus Sattar in regard t these matters. It will be convenient to deal with these matter first before we come to the consideration of the validity of section 116 of the Representation of the People Act. Taking up first the question whether the law as to briber under President's Order No. 4 of 1962 was correctly understood and applied by the Tribunal, it would seem that the learned Judges of the High Court accepted in full the statement on the subject contained in the monograph in Halsbury' s Laws of England which has been reproduced in the judgment. The offence charge under Article 62 of President's Order No. 4 of 1962 include within the expression "gratification" all forms of entertainment and provides that the offence of bribery shall be committed if person directly or indirectly, by himself or by another person gives any gratification to any person for purposes of inducing an elector to vote or to refrain from voting at an election. The commentary in Halsbury is briefly to the effect that treating prima facie will be regarded as innocent, and that when treating is of the quality of mutual treating between equals or treating in connection with business matters, it does not constitute an election offence, but it is so in case of treating of an inferior by a superior otherwise than as a reward for a service or in order to secure the goodwill of the person treated and to influence his vote A person who habitually treats others is not bound to abstain because an election is pending, and at a political meeting, it i no offence to offer refreshments. It would be an offence if the gathering was merely for gratification of the appetites of the persons present so as to influence their votes, but to attract people to a gathering by offering refreshments "of a moderate kind' is not necessarily corrupt. In consideration whether a corrupt motive is present such circumstances as that the treating was; openly done and that persons were included who were not voter; etc., are to be weighed in favour of the persons treating. The learned Judges have charged the Tribunal with failure to notice that the place of treating, namely, Anwara, was this home centre of Mr. Jamalus Sattar, but they have done les; than justice to the Tribunal in so saying. That fact was kept by the Tribunal in the forefront when examining the mattes and has indeed been given some weight in assessing the nature of the act found. The learned Judges have further found than the Tribunal did not take into account that many non‑voter; were also treated and in fact their number was double of than of the voters. They have regarded the application of the description "lavish" to the entertainment by the Chairman, namely, Mr. Justice Asir as "wholly unwarranted" and have described the treating as "modest and moderate refreshment" because to each person only a few sweetmeats and a cup of tea was offered. With respect to the learned Judges, it does not appear that they fully appreciated the special nature of the meeting here in question. It was not a political meeting arranged to canvass for Mr. Jamalus Sattar alone. If that had been the case, the principles laid down in Halsbury may well have applied. This was a meeting of all the electors of the locality who were called to become acquainted with the candidates and to hear from each one who he proposed to work for the betterment of the constituency. If this had been an election meeting for Mr. Jamalus Sattar alone, and he had provided modest refreshment for those who appeared, it might well be thought that a small matter like that would not weigh with the voters in making their choice particularly if equal refreshments were offered to many who were non‑voters, but here the occasion was one which was a substitute for the ordinary procedure of each candidate calling his own election meeting. Canvassing was not permitted, in the ordinary way, and assemblies were confined to occasions like the present on which all the candidates appeared at the same time and made themselves and their policies known to the electors. If on such an occasion one of the candidates should undertake to treat all these persons, there can be little question but that he would thereby be directly influencing the voters in his favour'. Moreover, the election to the National Assembly was an indirect one, namely, the electors were themselves basic democrats having been returned from their respective localities on the basis of adult franchise, each of them representing a certain section of the local population. Consequently, the inclusion of non‑voters among those treated does not carry the same quality of innocence in their, treating that might be found in an. election meeting of the king dealt with in the commentary in Halsbury. The 200 non‑voters were themselves, very likely, members of the primary consti tuencies and consequently could be thought to be persons connected with the voters in their midst. The entertainment or the entire assembly is thus equivalent to entertainment of the electors and their supporters in most cases and the fact of the p presence of non‑voters would thus rather magnify than minimise the effect of treating the voters. The charge of using the unwarranted expression "lavish" again seems misplaced. To provide two or three sweetmeats and a cup of tea to as many as 300 persons is no small matter and such an entertainment in a village would undoubtedly be regarded as generous. The expres sion "lavish" was apparently used by the Chairman, Mr. Justice Asir in relation to the treating as a whole, not in relation to each person whose appetite was gratified on this occasion. The inference that the treating being open was necessarily innocent does not take into account that it could hardly have been done secretly, having regard to the circumstances. The petitioner Mr. Badrul Haq Khan, did attempt to show that at the meeting an attempt was made by Mr. Jamalus Sattar to cover up his action by putting forward a Hindu person, Mr. S. N. Nandi, Chairman of the Anwara Union Council to appear as the host, and the matter has received comment in the judgment of the Chairman. This is one of the principal questions arising out of the evidence led in the case, and accordingly it may be convenient here to examine the treatment of that evidence in the judgments delivered by the Tribunal and that of the High Court. There was certainly treatment of the persons present at this meeting, for that is common ground between the parties. The speeches of the candidates were still going on when the treating commenced, but this caused a clatter and disturbance in the proceedings and accordingly the distribution of tea and sweets was stopped for the time being until the speeches were over, after which the entertainment was continued and completed. Evidence regarding these occurrences was opened by the petitioner with the Presiding Officer, Mr. M. I. Choudhury, who is P. W.

3. He said the treating was done with his permission, but he did not know who paid for it. The permission was obtained from him by the Chairman of the Anwara Union Council who was introduced by the Circle Officer of Anwara, Mr. Abu Muhammad Israfil, who was the first witness for the respondent. Mr. Choudhury said he discussed the matter with candidates one of whom wanted to know whether the Council Chairman wished to entertain the people "as an agent of any candidate." The Council Chairman said he was doing it as host Chairman. In cross‑examination, Mr. Choudhury said that he could not say whether the Chairman of Anwara Union Council who had acted as host Chairman was a Hindu, but he was not a candidate. The name of the "host Chairman," namely, S. N. Nandi first appeared in the evidence of the petitioner, Mr. Badrul Haq Khan, who said that while at the meeting he heard a clattering of plates and saw tea served from the corner of the hall and thinking it irregular he made an enquiry. He met one Mafizur Rahman Khan, whose evidence will be considered presently who told him that the "tea was being served by Mr. Jamalus Sattar as it was his home centre." Mr. Badrul Haq Khaq then went out of the hall to make further enquiries and meeting his relations and some of his workers he learnt that the report was true. So he returned to his seat in the hall and objected to the Presiding Officer that it was very irregular to entertain electors in this way. The Presiding Officer felt embarrassed, whereupon the Circle Officer "came to his rescue" and brought out a Hindu gentleman from the mass and said that he was the host. After some commotion this person whose name was given as Mr. S. N. Nandi, said that he was the host. Mr. Badrul Haq Khan suspected the honesty of the statement and asked "what led you to feed so many people including outsiders within the hall ?" He could do no more than he had done because the Presiding Officer had allowed the entertainment. In cross‑examination he said he had seen Mr. Jamalus Sattar providing the entertainment and mentioned also that the Chairman of the Anwara‑ Union Council was a canvasser for Mr. Jamalus Sattar. This witness gave the number of persons entertained as about 100 voters and 200 non‑voters. He said that he himself and some of the other candidates did not partake of the refreshment. Mafizur Rahman Khan, P. W. 9, supported this statement when he said that at the Anwara meeting, Mr. Jamalus Sattar entertained voters of Anwara and knew it because when he had gone to the same shop to take tea, he actually saw Mr. Jamalus Sattar placing the order for tea and sweets. The shopkeeper was a Hindu. In cross‑examination he said that in his presence Mr. Badrul Haq Khan had objected to the distribution of sweets etc., as being illegal, but he himself did not complain to the Presiding Officer although Mr. Badrul Haq Khan did. This witness belongs to a village included in the same constituency. That was the sum total of the evidence led for the petitioner, and appears on analysis to be simple enough. In brief, it is to the effect that Mr. Jamalus Sattar was seen placing an order for service of sweets and tea to the assembly, and when this was made known to Mr. Badrul Haq Khan, he raised an objection before the Presiding Officer, whereupon the Circle Officer brought forwarded the Chairman of the Anwara Union Council, who said that he was the host. The entertainment was interrupted for a time but was allowed to be completed when the proceedings were finished. The case for the respondent in his written statement was denial, although in doing so, some equivocal expressions were used which could be understood as meaning the denial was not of treating at all, but of abundant treating. The point was of no great importance having regard to the familiar lack of precision in mufassil pleadings, and the High Court rightly ignored, the defective expression of the plea. But in evidence, the respondent led two witnesses, namely, the Circle Officer, Mr. Abu Muhammad Israfil, O. P. W. 1, and himself as O. P. W. S. and each of them said that the entertainment was actually provided by Mr. S. N. Nandi. In cross‑examination, Mr. Israfil said that Mr. Nandi, was a well‑to‑do man and "probably sweets were arranged for the electors." He also said that he had seen Mr. Nandi with his chowkidar "going with plates of sweets in their hands." Mr. Jamalus Sattar denied that at Anwara he had entertained any electors and said that Mr. Nandi obtained permission from the Presiding Officer to entertain the electors and thereafter sweets were distributed. Mr. Nandi is a hospitable person by nature. He said Mr. Badrul Haq Khan himself took some of the sweets and it is to be noted that Mr. A. M. Israfil said that the other candidates also partook. Whether other candidates partook of the sweets and whether they objected, are matters which are irrelevant in relation to the final con clusion since it might suit the rival candidate very well to allow one of their number to commit an election offence in this fashion. Thus the evidence for the defence also was fairly simple. It was led to establish as positive fact that the entertainment of the people at Anwara was actually by a person other than Mr. Jamalus Sattar, namely, Mr. S. N. Nandi. There has been considerable comment in the different judgments upon the effect of the non‑production of Mr. S. N. Nandi as a witness by Mr. Jamalus Sattar who had cited him in his list of witnesses. The reason was given for the non‑production that he was suffering from a carbuncle, but this was put forward only after the con clusion of arguments. There has been comment also upon the non‑production of the vendor, a Hindu by the name of Sunil, who could have proved not only from whom he received the order to supply the goods but also from what source he was paid. It is of some importance to the final decision to consider upon whom the primary duty lay to produce firstly Mr. S. N. Nandi and secondly the vendor. There can be no doubt that it was for Mr. Jamalus Sattar, who set up a positive case to the effect that Mr. Nandi was the host, to produce the latter, particularly in view of the statement made by Mr. Badrul Haq Khan that Mr. Nandi was merely pushed forward to cover up something that Mr. Jamalus Sattar was really responsible for. As to the vendor, his evidence might have supported either side, and the blame for non‑production of Sunil should, therefore be taken by the two sides equally. The Chairman of the Tribunal in his examination of the evidence commented that it was "quite possible" that Mr. Nandi was interested on behalf of Mr. Jamalus Sattar though belonging to the same village of which Mr. Nandi is the Union Council Chairman, and also because Mr. Jamalus Sattar is the Chairman, of the Association of Union Councils of the Sub -Division. The Chairman of the Tribunal observed upon the vagueness of the Presiding Officer, Mr. B. I. Choudhury as to whether the Chairman of the Anwara Union Council was a Hindu and also observed on the failure of the respondent to produce Mr. Nandi as a witness after citing him, and the late excuse given for such failure. Having discussed all the evidence the Chairman went on to say that the onus of proving that Mr. Nandi was responsible for the entertainment had not been discharged and this being so the Tribunal had to examine how far the petitioner had proved that the entertainment was by Mr. Jamalus Sattar. He noted that Mr. Badrul Haq Khan had not at once accepted the statement of Mafizur Rahman, but had made further enquiries and had satisfied himself that Mr. Jamalus Sattar was responsible before he raised his objection. He finally concluded that all the circumstances showed that the entertainment was arranged at the instance of Mr. Jamalus Sattar and that this was for the purpose of inducing the voters to vote for him or to refrain from voting in favour of his rival. Influence upon the voters was clear from the fact that the entertainment was followed soon after by the election. The Member who concurred with the Chairman, Mr. Abdul Aziz, commenced his examination of the case by stating very properly that the time, the occasion and the circumstances of the' treating must be considered before it could be concluded that the' treating was for the purpose of influencing the voters and that it had a continuous operation up to the time of the election. He' stated, and again correctly, that a single instance of treating by a candidate is sufficient in law to set aside an election. After examining the evidence on both sides he concluded that there was unanimity as to the fact of the treating and the question was whether Mr. Jamalus Sattar was responsible for it. In his opinion, an objection on this ground was even raised at the projection meeting being implicit in the question "is this treating on behalf of any candidate?" and his view was that the Presiding Officer, Mr. Choudhury had tried to overcome this particular difficulty by saying that no candidate objected. The Member then examined the evidence of Mafizur Rahman. He found that his alleged relationship with Mr. Badrul Haq Khan was very remote, that he was a man of good status and not a chance witness. He said that he did "not feel inclined to disbelieve the evidence of P. W. 9 Mr. Mafizur Rahman Khan and P. W. 11 Mr. Badrul Haq Khan that the entertainment was arranged and ordered by Mr. Jamalus Sattar." It was after this that he applied his mind to the case of the opposite‑party and examined the evidence of the two witnesses led observing inter alia that there was no reason why Mr. Nandi should be host since he stood to gain nothing, and further that entertainment was provided for a "mighty large party." He then observed that a positive case had been set up for the defence that Mr. Nandi had done the entertaining and the defence had failed to produce him although they had cited him as a witness for which reason he would presume that if Mr. Nandi had been produced he would have negatived the story of the defence. Accordingly, he came to the conclusion that it had been proved that the treating was by Mr. Jamalus Sattar, by the evidence of Mafizur Rahman Khan and Badrul Haq Khan whom Mr. Abdul Aziz believed to be "witnesses of truth." It is unnecessary to consider the views of the third Member, Mr. N. M. Khan because they have been adopted in part by the learned Judges in the High Court. In the judgment of the High Court on more than one occasion it has been observed that the view of the majority is based upon a "mass of inadmissible evidence." In so small a volume of evidence, to find a "mass of inadmissible evidence" was probably not easy. In fact, the only pieces of evidence which have been characterised as inadmissible are firstly the statement of Badrul Haq Khan that after receiving the information from Mr. Mafizur Rahman Khan he verified it by enquiry from other persons and being thus satisfied raised his objection, and secondly that Mr. Mafizur Rahman Khan first stated that Mr. Jamalus Sattar had entertained the assembly at Anwara and followed it by giving his reason, namely, that he had seen Mr. Jamalus Sattar placing the order with vendor. With respect to the learned Judges it is impossible to see that the evidence thus given was in any way inadmissible. Mr. Badrul Had Khan was not placing the result of this enquiry before the Court,, but merely showed that he had acted in a responsible way before raising his objection at the meeting. Mr. Mafizur Rahman Khan also said nothing that is inadmissible if he placed his conclusion in the sentence immediately preceding that in which he stated what he had actually seen. The learned Judges in the High Court have criticised the judgment of the Chairman of the Tribunal on the round the had wrongly placed the onus of proof a upon the defence. In this respect it might be thought that the examination of the evidence by the Member, Mr. Abdul Aziz is most clearly in line with the requirement of due administration of justice, namely, having found a prima facie case established by the petitioner, he then proceeded to consider whether the positive counter‑case set up by the defence had been established and finding that the latter case should be rejected, and that the witnesses for the petitioner were worthy of belief, he found the charge to be proved. In fact, the judgment of the Chairman of the Tribunal is to the same effect and to hold it to be without jurisdiction or lacking in lawful authority merely because at the conclusion of a lengthy discussion the learned Judges had said that since the onus upon the defence had not been discharged he would proceed to consider whether the petitioner s case could be accepted, is to exaggerate the effect of a small error which is one of expression rather than of substance. It cannot be denied that by setting up a positive counter case the defence undertook an onus, and along with it the risk that the case for the opposite‑party might succeed if the defence case were not estab lished by due proof. The length at which the Chairman of the Tribunal and the Member, Mr. Abdul Aziz, discussed the evidence j in the case can certainly not be described as inadequate and it is well settle that when the evidence on both, sides has been full read and digested before reaching the conclusion, the question of error in placing the initial onus on one side or the other is not real importance. At this point, it is in our view desirable that we should state that in order to constitute an act of a judicial or of quasi‑judicial authority an act performed "without lawful authority" it must first be borne in mind what is the nature of the authority vested in such body. As to the admission of evidence the rules are well‑known, but it will be going too far to say that every little s breach of a rule by allowing evidence to come in, which in strict law might be thought inadmissible, would constitute an act, "without lawful authority." nest to present case; moreover, we do not find that inadmissible evidence was allowed to be led. Again, it is undoubtedly of importance that the initial onus of proof should be correctly placed as between the person laying the charge and the one who is to meet the charge, and again that in the final appreciation and evaluation of the evidence, it should be borne in mind what is to be proved by the accuser and at what stage, and further that the similar duty upon accused is subordinate to and consequent upon the discharge of his duty by the accuser. There was no error in this respect at the initial stage. Nor is any error to be found in the judgment of the Member, Mr. Abdul Aziz, at any later stage. If in the judgment of the Chairman, there is a fault, it is one of mere expression, and is fully corrected by the full and careful examination of the evidence which appears in his judgment. There can be no question but that the Chairman and Mr. Abdul Aziz reached their conclusion after applying their minds to the entire evidence and circumstances relating to the meeting at Anwara. As to the entertainment at Anwara being a solitary instance of treating, little can be said in support of the view taken by the learned Judges in the High Court. We have already in discussing the reliance placed by the learned Judges upon a passage extracted from the monograph in Halsbury, indicated that certain special features of this meeting which distinguish it from the type of election gathering to which the passage in Halsbury refers, were not considered by the learned Judges in arriving at their conclusion that the law had been misapplied. When all these factors are borne in mind, we have little doubt that the view of the Member, Mr. Abdul Aziz, namely, that a solitary instance of treating if duly proved will be sufficient to unseat a candidate, is the correct view. The learned Judges have dwelt at considerable length upon the circumstance that Mr. Jamalus Sattar was not proved to have announced himself before the entire gathering as their host. It is possible that they overlooked a number of relevant considera tions in coming to the conclusion that unless this was shown Mr. Jamalus Sattar could not be held guilty of corrupt treating. For instance, they have not taken into account the fact that Mr. Badrul Haq immediately raised an objection shortly after the commence ment of the treating. That would necessarily put the person who was providing the entertainment specially when he was a candidate, on his guard and to come forward and announce himself as the host would be the last thing that he would do. Again, sufficient consideration has not perhaps been given to the fact that it being his own home village it would have become known in any case sooner rather than later that he was the one who had entertained the voters on this important occasion. In another place, the learned Judges have said that it was necessary also for the petitioner to establish not merely that Mr. Jamalus Sattar was the host, but also that he actually paid for the entertainment. That is a view which it is difficult to support. Even if the debt was left unpaid the person who incurred it would have the credit in the eyes of those who had received entertainment. The point seems to have esaped notice that Mr. Jamalus Sattar had placed his case upon the Hindu Chairman of the Anwara Union Council, Mr. S. N. Nandi, a hospitable man, being the host and as the vendor Sunil is also a Hindu and presumably of the same place, it was not natural to expect that the petitioner would call the vendor in evidence. The enumeration by the learned Judges of the High Court of each ground upon which they have found the majority view of the Tribunal to be vitiated by lack of lawful authority, has greatly assisted in the further examination of the case in appeal. As a result of that examination, we entertain no doubt that there was nothing in the treatment of the 10th issue by the majority of the Tribunal which can be regarded as having been done beyond the lawful authority vested in them, and consequently there was no justification for the exercise by the High Court of power under Article 98, to quash the finding of the Tribunal on this issue. In our view, the conclusion by the majority that Mr. Jamalus Sattar had been shown to have committed the election offence of bribery by the treatment of the voters and others at Anwara on the 16th April, 1962, was reached on a proper examination of the evidence, in accordance with right principle, and was fully within the lawful authority vested in them, and accordingly that finding must be restored. The question whether section 116 of the Representation of the People Act, 1957 is still in force was argued by Dr. Nasim Hasan Shah appearing for the Attorney‑General of Pakistan on the following bases, namely :‑ (1) that the Representation of the People Act was not one of those laws whose operation was saved by Article 4 of the Laws (Continuance in Force) Order, 1958 ; (2) even if this Act was still existing law after the Revolution of the 7th October, 1958 it must b deemed to have been repealed as a whole by implication by virtue of President's Order No s. 4 and 13 of 1962 which cover the same field in its entirety. (3) in any event the Representation of the People Act is not Election applicable to the first elections held under the Constitution of 1962 ; and (4) the Assemblies under the 1962 Constitution were constituted on a totally different basis, and had very different powers, from the basis and the powers of the Assemblies con templated by the 1956 Constitution, and therefore the Act of 1957 could have no reference or application to the new Assemblies. The first part of the argument is based upon the terms of the Proclamation of the 7th October 1958, by President Iskandar Mirza which ended with the announcement of his decisions that the 1956 Constitution should be abrogated, that all Central and Provincial Governments should be dismissed, that the National Parliament and the Provincial Assemblies should be dissolved and that all political parties should be abolished. These decisions were prefaced by a lengthy statement of the condition which had induced the President to take the drastic action of placing the country under Martial Law. Dr. Nasim Hasan Shah made pointed reference to passages in the Proclamation criticising certain occurrences in the East Pakistan Assembly, expressing apprehension that fresh elections would not avail to improve the chaotic internal situation or enable the formation of an adequate Government to deal with the problems of the country and that it was likely that wicked persons would "rig the elections for their own ends." President Iskandar Mirza felt sure that the elections would be contested mainly "on personal, regional and sectarian basis" resulting in repetition of the previous "tragic farce of democracy" and "widespread frustration." Towards the close of this statement, President Iskandar Mirza declared that the Constitution of 1956 was "unworkable" containing dangerous compromises that could only be rectified by first taking the country to "sanity by a peaceful revolution." He declared it to be his "intention to collect a number of patriotic persons to examine our problems in the political field and devise a Constitu tion more suitable to the genius of the Muslim people", which at the appropriate time would be submitted to a referendum. On the basis of these statements, Dr. Nasim Hasan Shah urged that it should be concluded that the dissolution of the National Parliament and Provincial Assemblies which was decreed by the President should be interpreted to mean abolition of these Legislatures as set up under the Constitution of 1956. The fact remains however that on the 10th October 1958, three days after the Proclamation, President Iskandar Mirza made the Principal Constitutional Order under which Pakistan was governed during the period of the Revolution and until the grant to the country of the new Constitution by President Muhammad Ayub Khan on the first of March 1962. By this Order, namely, the Laws (Continuance in Force) Order 1958, provision was made for Pakistan to continue "to be governed as nearly as may be in accordance with the late Constitution" notwithstanding its abrogation but "subject to any order of the President or Regulation made by the Chief Administrator of Martial Law". Under the Constitution of 1956 in the absence of the Central Legislature the President was empowered to legislate by Ordinance and that power was freely exercised, throughout that period, in addition to the power of making Orders under Article 2 of the Laws (Continuance in Force) Order, 1958, which were to take effect in super session of anything contained in the 1956 Constitution. No provision was made in the Laws (Continuance in Force) Order 1958 respecting any Legislature, but by Article 5, it was made clear that executive and legislative powers would be exercisable by Governors in relation to their respective Provinces, as if they had been placed in charge of those functions of Government under the provisions of Article 193 of the late Constitution, but subject to any directions given by the President or by the Chief Administrator of Martial Law or any person having authority from the Chief Administrator. The distribution of legislative powers between the Centre and the Provinces was maintained unchanged by this Article. The question arises since the Provis ions relating to constitution of the Legislatures were not expressly repealed by the Laws (Continuance in Force) Order, and since there was already on the statute book the Representation of the People Act, 1957, which made provisions for the first elections to the new Legislatures under the 1956 Constitution, can it be said, beyond doubt, that the direction that National and Provincial Assemblies were dissolved must be understood as a direction that they were abolished ? Despite the expression of intention as to future steps contained in the Proclamation by President Iskandar Mirza, was it not possible that he may have changed his opinion, had he remained in office sufficiently long, and summoned new Assemblies to be elected under the Representation of the People Act, 1957, in accordance with the Constitution of 1956, if he found that the situation had sufficiently improved to justify such action ? The machinery was already there in the shape of the Representation of the People Act supplementing the provisions relating to an Election Commission and other Election Officers under Part VIII of the Constitution of Pakistan. (We believe that the Election Commissioner appoint ed under the Constitution of 1956 was not abolished follow ing the Revolution, but continued to exist for some consider able time.) There can be no doubt that these provisions could easily have been put into force at the wish of the President, ruling under the Laws (Continuance in Force) Order, 1958, had he so pleased. Moreover, the National Assembly and the Provincial Assemblies which were in existence on the date of the Proclamation had been elected under the previous Constitution, and were only performing the functions of the National Assembly and the Provincial Assemblies contemplated by the 1956 Constitution under the temporary and transitional provisions contained in Part XIII, and even if it be said that the word "dissolved" used in the Proclamation should be understood as referring to abolition of those Assemblies, it cannot be said to have been used with reference to any Assembly elected under the 1956 Constitution. If during the period of Martial Law, it had pleased the President to consider in view of changed and improved circumstances, the possibility of restoring representative Government as provided under the Constitution of 1956, which in its other aspects was actively in operation, although from a depressed status, we entertain no doubt that the wish could have been carried to fulfilment with the aid of the laws and the machinery of election already in existence, despite the abrogation of the Constitution. The carrying over of laws as effective instruments from the period prior to the Revolution into the period of Martial Law was effected by Article 4 of the Laws (Continuance in Force) Order, 1958, and it is clear that within the terms of that Article, the Representation of the People Act is one of the laws which continued to be existing law after the 7th October 1958. We do not see that this law can be thought to have been deprived of its force by anything appearing in the Proclamation of the 7th October 1958. Dr. Nasim Hasan Shah's second argument, namely, that on the principle of the field having been fully occupied by a later exhaustive law, the earlier law on the same subject should be deemed to have been repealed is based upon certain propositions stated in text books on the interpretation of statutes. In particular, he cited a passage from Crawford on Statutory Construction (1940) paragraph 137, where it is said that one category of implied repeals is that brought about "when an Act covers the whole subject of an earlier Act and is intended to be a substitute thereof". The paragraph goes on to say that a "repeal takes place under those circumstances, even though the new Act con tains no repealing clause." The statement is very large and general and although it is said to be supported by a number of authorities from the American Courts set out in a footnote, Dr. Nasim Hasan Shah was unable to place before us any case which would avail to sustain the proposition in its fullness. Each case which he cited related to repeal pro tanto by repugnancy of some earlier detailed provision as a result of new legislation, but here the argument is that because practically all the matters dealt with in the Representation of the People Act, 1957, have subsequently been dealt with in the President's Orders Nos. 4 and 13 of 1962, therefore, even without any express repeal of the 1957 Act being effected by anything said in these two Presidential Orders, the provisions of the Act and in particular section 116 which is not repealed by repugnancy to either of the two Presidential Orders must be deemed to have been repealed. The weakness of this argument lies in the fact that this is not a case of mere absence of a repealing provision in the subsequent statute. Article 87 of President's Order No. 4 of 1962 is in the following terms :‑ "The provisions of this Order shall take effect notwithstanding anything inconsistent contained in any other law for the time being in force." There is no question that an important law on the same subject which was "for the time being in force" was the Representation of the People Act of 1957, and if the intention was that that Act should be repealed as a whole, it was a perfectly simple matter to say so in this Order. But what has actually been said is that earlier provisions are repealed by the provisions of the President's Order No. 4 of 1962 to the extent of inconsis tency, and therefore the argument of wholesale repeal based upon the absence of a repealing provision is not available. It is necessary for a person seeking to avoid the effect of the section 116 of the 1957 Act on the ground of the promulgation of the President's Order No. 4 of 1962 to show that section 116 is inconsistent with something said in the latter Act. Again, Article 80 of the Order makes it clear that from mere absence of mention in the Order of any disqualification which is based upon any law in force, the conclusion shall not follow that the omission has the effect of avoiding the disqualification. This Article expressly lays down that "any disqualification under this Chapter shall be in addition to and not in derogation of, the dis qualification specified in Article 103 of the Constitution." Article 103 enumerates in sub‑Article (2) grounds of disquali fication of which ground (e) reads as follows :‑ "he is otherwise disqualified from being a member of that Assembly by this 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. It may be mentioned here that by the fact of being a contractor within a constituency under the Basic Democracies Order 1959, a person is by the Second Schedule to that Order, Part 2, section 2(e)‑‑disqualified from being a candidate for election to a Basic Democracy. Consequently, there is nothing which offends against the basic principles of electoral qualification and disqualification as embodied in the instruments governing the franchise at present, in a provision which prohibits a person who is a Government contractor from being a member of a Provincial Assembly or the National Assembly. The conclusion that the disqualification under section 116 of the Act of 1957 is effective in relation to the relational and the Provincial Assemblies which had been elected on the basis of a franchise in the structure of which the Basic Democracies Order, 1959 forms the most important part, therefore involves no inconsistency with the concept underlying the new Constitution. Dr. Nasim Hasan Shah's argument that in any case the Representation of the People Act could not have effect in, relation to the first elections under the 1962 Constitution is probably sufficiently answered by the fact that the President's Order No. 4 of 1962 which expressly relates to the first elections to the Legislatures under the 1962 Constitution, itself in Article 87 makes a provision under which a section such as section 116 of the Act of 1957 remains effective, though (a) being consistent with the purposes of the new Constitution, read with the Basic Democracies Order, and (b) not being inconsistent with any provision in President's Order No. 4 of 1962. The last argument advanced by Dr. Nasim Hasan Shah was that the National Assembly elected under the 1962 Constitution is so different from the National Assembly conceived under the Constitution of 1956 that necessarily the Act of 1957 which was enacted for the contemplated Assemblies under the 1956 Constitution could have no effect in relation to the new Assemblies. The point before us is one for disqualification for a Legislature, and it has already been seen that a disqualification based upon the fact of being a Government contractor is within the fundamental concept of the New Constitution being in line with a closely similar provision in the Basic Democracies Order, which forms the very foundation of the structure of the existing franchise. Dr. Nasim Hasan Shah enumerated the differences between the Legislatures contemplated under the 1956 Constitution and those which have been brought into existence under the 1962 Constitution, and it cannot be denied that these are considerable. But at the same time, he was unable to deny that the place given to the National Assembly in the constitutional structure by the two Constitutions is exactly the same. In the 1956 Constitution Article 43 provided that "there shall be a Parliament of Pakistan consisting of the President and one house to be known as the National Assembly." The parallel provision in the 1962 Constitution is in practically the same terms, for it reads :‑ "There shall be a Central Legislature of Pakistan which shall consist of the President and one house to be known as the National Assembly of Pakistan." Each of the two National Assemblies is one composed of representatives of the people, and together with the President is to constitute the Central Legislature or the Parliament of Pakistan. It is true that the mode of election to the National Assembly has been changed by the Constitution of 1962 and the number of its members has been halved. It is true that its powers are different from those of the 1956 National Assembly since they are adapted to the working of a Presidential system of Government. But these circumstances do not avail to deprive it of the character of being a special body of men returned by the electors to make laws for the entire country subject to the assent of the President. The composition of an Assembly can be changed from time to time by alteration of constituencies and the number can be increased and even reduced by laws made under the existing Constitution. The basis of the franchise may be altered, by extension or restriction. The mode of election may be varied. The membership is liable to change from time to time. But all these circumstances do not avail to prevent the Assembly from continuing to be that body which is intended by the Constitution to sit with the President to make laws for the country as a whole. The question which is posed by this argument is whether references to the "National Assembly" contained in the Representation of the People Act of 1957 have become unmeaning with reference to the existing thing, namely, the new National Assembly. It seems plain that the answer must be in the negative, for both in substance as well as appearance the new National Assembly performs very much the same function in the Constitution of 1962, as the proposed National Assembly under the 1956 Constitution. It is not a case of the Act being extended to something which was not known when the Act itself was passed. If one can conceive of all Legislatures constituting a genus, there can be no doubt that National Assemblies are entitled to be regarded as a species of this genus, and so categorized it seems impossible to deny that the National Assembly of Pakistan under the 1962 Constitution belongs to the same species of Legislatures as did the National Assembly of Pakistan under the 1956 Constitution. Accordingly, we have arrived at the conclusion that section 116 of the Act of 1957 is still in force and that its effect was rightly considered by the Tribunal in relation to the case of Mr. Jamalus Sattar, but we are in agreement with the High Court that in the absence of anything to show that at the time when he presented himself as a candidate Mr. Jamalus Sattar had an existing interest in a contract with Government, a bar to his L being a candidate or being elected based upon section 116 aforesaid could not be pleaded against him. Finding however in respect of issue No. 10 that the view of the majority of the Tribunal did not suffer from such defect as could enable interference under the special jurisdiction vested in the High Court by Article 98 of the Constitution, we allow this appeal and direct that the writ issued by the High Court to quash the decision of the Tribunal should be recalled. We leave the parties to bear their own costs. B. Z. KAIKAUS, J.‑--I agree that this appeal be allowed and I am in agreement generally with the reasoning in the judgment of my Lord the Chief Justice except in so far as it relates to the applicability of the Representation of the People Act. I will deal with the question of the applicability of this Act with reference to two points‑ (i) whether it was an "existing law" by virtue of clause 4 of the Laws (Continuance in Force) Order, 1958 ; and (ii) whether, quite apart from the determination of the first point, the Act was applicable to an assembly created by the present Constitution of Pakistan. The determination of the first point depends on whether at the time when clause 4 of the Laws (Continuance in Force) Order 1958, came into force the National and the Provincial Assemblies created by the Constitution of 1956 stood abolished for if they were abolished every law relating to them also disappeared and could not have become an existing law. If the National and Provincial Assemblies were found not to be in existence even notionally after the coming into force of the Laws (Continuane, in Force) Order, then it will be meaningless to have a law providing for elections to such Assemblies. In fact the proposition that if the Assemblies were abolished the Representation ct People Act would not be an existing law when the Law (Continuance in Force) Order came into force is not disputed, the contest being limited to the question whether there was a simple dissolution or a total abolition of the National and Provincial Assemblies. The Proclamation of the 7th of October 1958, after stating that the Constitution had been abrogated went on to say that the Assemblies had been dissolved. An argument bps been put forward that this may be a simple dissolution of the Assemblies and there may no intention to abolish them, altogether. We have been in direct contact ourselves with the situation created by the Proclamation of the President and I do feel surprised that a question should be raised at all as to the notional existence after the proclamation of the Assemblies. However the question having been raised has to be discussed from the legal point of view. I would consider in the first place the situation as it existed on the 7th October 1958, immediately on the issue of the Proclamation and before the Laws (Continuance in Force) Order was promulgated on the 10th October 1958. It would be convenient before proceeding further to reproduce the whole of the Proclamation. It runs: No. F. 81/Pres./58, 25th October 1958, Gazette, 31st October 1958.‑-The following PROCLAMATION made by the President at 10‑30 p m. on the 7th day of October 1958, is hereby published for general information :‑ "For the last two years, I have been watching, with the deepest anxiety the ruthless struggle for power, corruption, the shameful exploitation of our simple, honest, patriotic and industrious masses, the lack of decorum and the prostitution of Islam for political ends. There have been a few honourable exceptions. But being in a minority, they have not been able to assert their influence in the affairs of the country. These despicable activities have led to a dictatorship of the lowest order. Adventurers and exploiters have flourished to the detriment of the masses and are getting richer by their nefarious practices. Despite my repeated endeavours, no serious attempt has been made to tackle the food crisis. Food has been a problem of life and death for us in a country which should be really surplus. Agriculture and land administration have been made a hand maiden of politics so that in our present system of Government, no political party will be able to take any positive action to increase production. In East Pakistan, on the other hand, there is a well organized smuggling of food, medicines and other necessities of life. The masses there suffer due to the shortages so caused in and the consequent high prices of, these commodities. Import of food has been a constant and serious drain on our foreign exchange earnings in the last few years, with the result that the Government is constrained to curtail the much needed internal development projects. Some of our politicians have lately been talking of bloody revolution. Another type of adventurers among them think it fit to go to foreign countries and attempt direct alignment with them which can only be described as high treason. The disgraceful scene enacted recently in the East Pakistan Assembly is known to all. I am told that such episodes were common occurrences in pre‑partition Bengal. Whether they were or not, it is certainly not a civilized mode of procedure. You do not raise the prestige of your country by beating the Speaker, killing the Deputy Speaker and desecrating the National Flag. The mentality of the political parties has sunk so i am unable any longer to believe that elections will improve the present chaotic internal situation and enable us to form a strong and stable Government capable of dealing with the innumerable and complex problems facing us to day. We cannot get men from the Moor. The same group of people who have brought Pakistan on the verge of ruination will rig the election for their own ends. They will come back more revengeful, because, I am sure that the elections will be contested, mainly, on personal, regional, and sectarian basis. When they return, they will use the same methods which have made a tragic farce of democracy and are the main cause of the present widespread frustration in the country. However much the administration may try, I am convinced, judging by shifting loyalties and the ceasless and unscrupulous scramble for office, that election will neither be free nor fair. They will not solve our difficulties. On the contrary, they are likely to create greater unhappiness and disappointments leading ultimately to a really bloody revolution. Recently, we had elections for the Karachi Municipal Corporation. Twenty per cent of the electorate exercised their votes, and out of these, about fifty her cent were bogus votes. We hear threats and cries of civil disobedience in order to retain private volunteer organisations and to break up One Unit. These disruptive tendencies are a good indication of their patriotism and the length up to which politicians and adventurers are prepared to go to achieve their parochial aims. Our foreign policy is subjected to unintelligent and irresponsible criticism, not for patriotic motives, but from selfish view of points, often by the very people who were responsible for it. We desire to have friendly relations with all nations, but political adventurers try their best to create bad blood and misunderstanding between us and countries like the U. S. S. R., the U. A. R., and the Peoples Republic of China. Against India, of course, they scream for war, knowing full well that they will be nowhere near the firing line. In no country in the world, do political parties treat foreign policy in the manner it is done in Pakistan. To dispel the confusion so caused, I categorically reiterate that we shall continue to follow a policy which our interests and geography demand and that we shall honour all our international commitments, which, a s is veil known, N,, e have undertaken to safeguard the security of Pakistan and, as a peace loving nation, to play our part in averting the danger of war from this troubled world. For the last three years, I have been doing my utmost to work, the Constitution in a democratic way. I have laboured to bring about coalition after coalition, hoping that it would stabilise the administration and that the affairs of the country would be run in the interest of the masses. My detractors, in their dishonest ways, have on every opportunity, called these attempts as Palace intrigues. It has become fashionable to put all the blame on the President. A wit said the other day. If it rains too much It is the fault of the President and if it does not rain it is the fault of the President." If only I alone was concerned I would go on taking these fulminations with tile contempt they deserve. But the intention of these traitors and unpatriotic elements is to destroy the prestige of Pakistan and the Government by attacking the Head of the State. They have succeeded to a great extent, and, if this state of affairs is allowed to go on, they will achieve their ultimate purposes. My appraisal of the internal situation has led me to believe that a vast majority of the people no longer have any confidence in the present system of Government and are getting more and more disillusioned and disappointed and are becoming dangerously resentful of the manner in which they are exploited. Their resentment and bitterness are justifiable. The leaders have not been able to render them the service they deserve and have failed to prove themselves worthy of the confidence the masses had reposed in them. The Constitution which was brought into being on 23rd March 1956, after so many turbulations, is unworkable. It is full of dangerous compromises that Pakistan will soon disintegrate internally if the inherent malice is not removed. To rectify them, the country must first be taken to sanity by a peaceful revolution. The, it is my intention to collect a number of patriotic persons to examine our problems in the political field and devise a Constitution more suitable to the genius of the Muslim people. When it is ready, and at the appropriate time, it will be submitted to the referendum of the people. It is said that the Constitution is sacred But more sacred than the Constitution or anything else is the country and the welfare and happiness of its people. As Head of the State, my foremost duty before my God and the people is the integrity of Pakistan. It is seriously threatened by the ruthlessness of traitors and political adventurers, whose selfishness, thirst for power and unpatriotic conduct cannot be restrained by a Government set up under the present system. Nor can I any longer remain a spectator of activities designed to destroy the country. After deep and anxious thought, I have come to the regrettable conclusion that I would be failing in my duty, if I did not take steps, which in my opinion, are inescapable in present conditions, to save Pakistan from complete disruption. I have, therefore, decided that :‑ (a) The Constitution of the 23rd March 1956, will be abrogated. (b) The Central and Provincial Governments will be dismissed with immediate effect. (c) The National Parliament and Provincial Assemblies Will be dissolved. (d) All political parties will be abolished. (e) Until alternative arrangements are made, Pakistan will come under Martial Law. I hereby appoint General Muhammad Ayub Khan, Commander‑in‑Chief, Pakistan Army, as the Chief Martial Law Administrator and place all the Armed Forces of Pakistan under his command. "To the valiant Armed Forces of Pakistan, I have to say that having been closely associated with them since the very inception of Pakistan, I have learnt to admire their patriotism and loyalty, I am putting a great strain on them. I fully realise this but 1 ask you Officers and men of the Armed Forces on your services depends the future existence of Pakistan as an independent Nation and a bastion in these parts of the Free World. Do your job without fear or favour and may God help you. "To the people of Pakistan, I talk as a brother and fellow compatriot. Present action has been taken with the utmost regret but I have had to do it in the interests of the country and the masses finer men than whom it is difficult to imagine. To the patriots and the law abiding, I promise you will be happier and freer. The political adventurers, the smugglers, the black‑marketeers, the hoarders will be unhappy and their activities will be severely restricted. As for the traitors, they had better flee the country if they can and while the going is good." The President has taken pains in this Proclamation to state the circumstances which led him to act as he did. He found that the unscrupulous politicians had brought the country to the verge of ruin ; fresh elections would not improve the situation, they would not be free or fair, the same person would be elected again, they would be more revengeful and would re‑employ the methods which had made democracy a tragic farce; a vast majority of the people no longer had any confidence in the present system of Government ; the Constitution which was brought into being on the 23rd March 1956, was unworkable and Pakistan would soon disintegrate internally if the malady was not properly treated; a peaceful revolution had become essential. The steps that the President took were that he abrogated the Constitution; dismissed the Government; dissolved the Assemblies; abolished all political parties and till the making of alternative arrangements placed the country under Martial Law. Nothing could be clearer for showing that the existing system or the existing legal order was by this proclamation completely done away with. The President was abrogating the Constitution and bringing in a peaceful revolution. He was not acting under the Constitution. The Proclamation was an extra legal act inconsistent with the Constitution. If the Constitution remained the Proclamation was wholly void for the Constitution did not permit its abrogation or the action that the President had taken. The President had found the Constitution unworkable and had put an end to it. He was bound by his oath to defend the Constitution but the sanctity of the Constitution had given way to a greater sanctity, the welfare of the people. I am not concerned with the propriety of the action taken or the correctness of the statements made in the Proclamation. I am only concerned with the intention of the President and the effect of the Pro clamation. Had the President simply stated that he abrogated the Constitution that would be quite sufficient for proving that the existing legal order had vanished for when a Constitution goes everything that rests out it goes too, lock, stock and barrel. The President, however, went further and made his mind absolutely clear. He explained his action in terms which leave no doubt as to the nature of his act. The existing legal order was bringing the country to ruin and he finished it. The fact that after abrogating the Constitution he also said that the Assemblies were dissolved can hardly under the circumstances be a basis for inferring that he was still leaving intact that part of the Constitution by which the Assemblies were created and was simply dissolving the Assemblies. When the Constitution was abrogated the Assemblies had as a consequence to be dissolved. There was a power in the President under the Constitution to dissolve the National Assembly, but quite obviously he was not using that power. He could not be using any power under the Constitution after he had abrogated the Constitution. So far as the Provincial Assemblies are concerned he had under the Constitution no power to dissolve them and such dissolution could only be the result of their total abolition by an extra legal act‑an act which was illegal at that time, but which on account of its succe3s became the foundation of the present legal order. After the issue of the Proclamation on the 7th October 1958, and before the promulgation of the Laws (Continuance in Force) Order on the 10th October 1958, the situation was that not only had the Assemblies been abolished, but no legal institution existed in this country at all. The Constitution of 1956 having been abrogated all the laws which were supported by it disappeared and without a Constitution there could not be any laws and there was as yet no other Constitution in force. Therefore, there was no law in this country at all from the 7th October 1958, to the l0th October 1958, before the promulgation of the Laws (Continuance in Force) Order. There existed only the will of the President which was the supreme force by which the affairs of this country were to be regulated. The next question to ask is : if the Assemblies stood abolished on the 7th October 1958, were they recreated on the 10th) October 1958, by the Laws (Continuance in Force) Order, 1958. What exactly had happened on the 10th October 1958? The President who had abrogated the Constitution with the sole object of giving to the country a new Constitution had to give the country some Interim Constitution to carry on the administration of the country till a new Constitution was framed and enforced. The Laws (Continuance in Force) Order is the Interim Constitution which the President provided. Did he, by this Interim Constitution revive the provisions relating to the Assemblies contained in the Constitution of 1956? Before pro ceeding further it will be convenient to reproduce the relevant portions of the Laws (Continuance in Force) Order‑ "2.‑(1) Notwithstanding the abrogation of the Constitution of the 23rd March 1956, hereinafter referred to as the late Constitution, by the Proclamation and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, the Republic, to be known henceforward as Pakistan, shall be governed as nearly as may be in accordance with the late Constitution. 4.‑‑(1) Notwithstanding the abrogation of the late Con stitution, and subject to any Order of the President or Regulation made by the Chief Administrator of Martial Law, all Laws, other than the late Constitution, and all Ordinances, Orders‑in‑Council, Orders other than Orders made by the President under the late Constitution, such Orders made by the President under the late Constitution as are set out in the Schedule to this Order, Rules, Bye‑Laws, Regulations, Notifications, and other legal instruments in force in Pakistan or in any part thereof, or having extra‑territorial validity, immediately before the Proclamation, shall, so far as applicable and with such necessary adaptations as the President may see fit to make, continue in force until altered, repealed or amended by competent authority." Clause 2 (1) provides that the country would be governed as far as may be in accordance with the "late Constitution" and for the argument that the provisions relating to the Assemblies were revived by the Laws (Continuance in Force) Order, reliance is placed only on these words. It is urged that the word "governed" includes legislative functions and, therefore, when the President said that the country was to be governed in accordance with the late Constitution the intention was to recreate the Assemblies also though only notionally i.e., the provisions relating to Assemblies were revived although whether elections were held or not depended upon the will of the President. Before proceeding further it will be proper in order to avoid confusion to explain one matter. It should not be assumed that the Constitution of 1956 or any part thereof was coming into force as such on account of the provision that the country was to be governed as nearly as may be in accordance with the late Constitution. The President wanted some laws by which the administration of the country was to be carried on before a new, Constitution was framed and he found it convenient to adopt generally the provisions contained in the very Constitution which he abrogated. But this does not mean that the relevant provisions of the Constitution came into force as such. The President may have chosen to say that the country would henceforth be governed as nearly as may be in accordance with the Constitution of Tanganika. This would not mean that the Constitution of Tanganika became applicable, but only this that the provisions contained in that Constitution were accepted by the President as provisions in accordance with which the administration of the country was to be run. Similarly if he said that Pakistan would be governed henceforth in accordance with the late Constitution that would not mean that the Constitution itself was being enforced. It would only mean that the provisions of the Constitution were being adopted by the President as his own law. The Constitution was in force as the will of the people. That was the source of its force or validity. The provisions of the Constitution which were being now applied by virtue of the Laws (Continuance in Force) Order derived their force from the will of the President, which will was entirely inconsistent with the will of the people as expressed in the Constitution. To revert to the point under discussion the President having expressed himself in the manner in which he did in the Pro clamation is it possible to attribute to him the intention of reviving the provisions relating to the Assemblies? He had found as is stated in the Proclamation that fresh elections would be of no help. The same persons would be re‑elected, they would be more revengeful and they would again use the methods which bad made a farce of democracy. He had found the Constitution of 1956 to be unworkable. Not only that he had found that if the same Constitution continued Pakistan would disrupt internally. Was he then going to be a party to such disruption ? Was he going to re‑introduce the system which had brought the country to the verge of ruin ? Could he possibly intend holding fresh elections to the very same Assemblies which he had abolished ? He had even abolished political parties. The Proclamation shows that the whole grievance of the President was against the Assemblies and the members of the Assemblies. It is they who brought the country to the verge of ruin. When he found the Constitution to be unworkable and to be leading to disruption, the main attack was on the Assemblies and their powers. Had the President changed his views between the 7th and 10th October 1958 ? Unless the President accepted that all that he stated in the Proclamation was wholly unfounded he could not have intended to recreate the provisions relating to the Assemblies. Truly speaking it is not necessary to show that the President could not possibly have the intention of recreating the Assemblies. It is sufficient having regard to canons of Interpretation of Statutes to show that the probable intention was not to create the Assemblies, but in the present case it is clear that there was no reasonable possibility at all of the President entertaining such an intention. If somebody had suggested to the President on the 10th of October 1958, that he may revive the provisions relating to the Assemblies, he may have dealt very severely with that person. He would have regarded the suggestion an insult for it negatived all that he had said in the Proclamation. Not only is there nothing to show that the President had changed his mind or his views between the 7th and the 10th October 1958, but the Laces (Continuance in Force) Order is "in pursuance" of the Proclamation and there is a provision in it that the Proclamation cannot be questioned by any Court or person. My Lord the Chief Justice has said that the President may have changed his mind later and may have thought fit to order fresh elections, but the question is not whether he could have later changed his mind. Probably it was quite open to him to do anything in the world for his will was the law of this country and technically speaking he could have brought into existence at any time the provision relating to the Assemblies and ordered fresh elections, though it is almost impossible that he would have done so, but this is quite beside the point. The question for decision is as to what was his state of mind on the 10th October 1958, when he promulgated the Laws (Continuance in Force) Order. If on that date he was not contemplating the holding of fresh elections and, therefore, did not revive the provisions relating to the Assemblies whatever he might have done after wards is irrelevant for whether the Representation of People Act did on did not become an existing law on the 10th October 1958, depends on whether the provisions relating to the Assemblies were or were not revived on the 10th October 1958. I would hold, therefore, that the Representation of the People Act had not become an existing law at all for the Assemblies had N been abolished and were not recreated by the Laws (Continuance in Force) Order. On the second point the case against the applicability of the Representation of the People Act is, if possible, even stronger. The second point, in the way in which I have expressed it, is not dealt with in the judgment of My Lord the Chief Justice at all because point 4 in that judgment refers only to the similarity between the National Assembly under the Constitution of 1956 and the National Assembly under the present Constitution, the apparent assumption being that if there was sufficient similarity the provision in dispute would be applicable to the present National Assembly. The point which I take is quite apart from the similarity or dissimilarity of the two Assemblies. What I mean is that the Representation of the People Act was intended to apply only to the Assemblies created by the Constitution of 1956 and to no other Assembly. At the same time the Legislature which enacted the Representation of the People Act had jurisdic tion to enact such a law only with respect to the Assemblies which were created by the Constitution of 1956. For both these reasons, therefore, the Representation of the People Act would be inapplic able to the present Assemblies of Pakistan. The power of the Parliament of 1956 to enact the Represen tation of the People Act was derived from Article 144 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 com mencement of electoral rolls ; (b) the conduct of elections and election petitions ; the deci sion 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 constitu tion 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 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 Constitu tion of 1956. So there was no jurisdiction at all under clause (d) of this Article to enact a law for any Assembly except the Assemblies created by the Constitution of 1.956. The fact that the Parliament was empowered to make laws only for the National and Provincial Assemblies created by the Constitution of 1956 would itself be a guide to the intention of Parliament as to the institution to which this law was to apply. The Parliament could not be expected to exceed its jurisdiction. The preamble to the Representation of the People Act also makes it clear that the Act intended to apply only to the Provincial and National Assemblies created by the Constitution of 1956. The preamble runs "Whereas it is necessary to provide for the conduct of elections to the National Assembly and the Provincial Assemb lies, the qualifications and disqualifications for membership of those Assemblies, corrupt and legal practices and other offences at or in connection with such elections, the determination of doubts and disputes arising out of or in connection with such elections, and other matters arising out of or connected with the matters aforesaid." Nothing could be clearer. It is only the qualifications and disqualifications of the members of "those Assemblies" that this Act provides. Section 116 of the Act, therefore, should be so read that after the words "National Assembly and Provincial Assemblies" we add the words "created by the Constitution o 1956". If these words had actually been used in the section the meaning would be exactly what it now is and I do not see why when determining the question before us we should not read the section in this way. If the Representation of the People Act as well as section 116 of that Act were intended to apply only to the Assemblies created by the Constitution of 1956 by what process of reasoning can this Act be made applicable to the Assemblies not created by the 1956 Constitution. The applicability of a law as long as we follow the English system of jurisprudence must depend upon the intention of the Legislature. In Maxwell it is stated at the very outset that the "fundamental rule of interpretation to which all others are subordinate is that a statute is to be expounded accord ing to the intent of them that made it". If the intention of the M Parliament of 1956 was that the law should be applicable only to the Assemblies created by the Constitution of 1956, it is an impossible proposition that it can apply to any other body. There is one matter which it may be proper to explain here. Electoral laws relating to the Assemblies do not occur in any of the lists in the Fifth Schedule to the Constitution of 1956. The powers of the National and Provincial Assemblies as to legislation are stated in Article 106 of that Constitution. According to that Article the Legislatures have power to enact laws relating to subjects mentioned in the various lists given in the Fifth Schedule. Electoral laws relating to Assemblies find no place in any list and for them there is a special provision in Article 144 which grants power to enact such laws. Had there been an item in the Concurrent List relating to "Legislative Assemblies" it might have been possible to argue that the Parliament had jurisdiction with respect to all Assemblies and that the intention of the Representation of the People Act was also to refer to all Assemblies, but actually there could not have been an item like this in the list at all. A Constitution would grant legislative powers only with respect to matter that are contemplated by it. It would not grant jurisdiction to legislate with respect to an Assembly not envisaged by it and sure a Constitution can never grant power to enact laws with respect to Assemblies that come into existence by the abrogation of that Constitution or by means of a revolution. Constitutions do no, provide for post‑revolution laws. Reverting to the question of intention is there the slightest possibility that the Parliament of 1956 intended to apply the Representation of the People Act to an assembly which would come into existence by means of a revolution and by an abrogation of the Constitution. No Parliament when enacting laws contem plates a revolution which does away with the very Constitution under which the Parliament is acting. From the point of view of the Constitution of 1956 the present Assemblies are illegal. In the eye of the law as it existed under the Constitution of 1956, these Assemblies do not exist at all. The question of the intention of the Parliament, therefore, to apply the Representation of the People Act to these Assemblies does not even arise. All this is quite apart from the question of the dissimilarity between the present Assemblies and the Assemblies under the Constitution of 1956 but there can be little doubt that between the present system and that of 1956 there is not much in common. That was a Parliamentary democracy and this is a Presidential system; the electoral college for the election of assemblies is entirely and basically different; the number of members is different ; the financial powers of the President are different. Considering that the Constitution to be framed after the revolution had to be based on some democratic principles it is not quite easy to say what greater difference there could be between the two Constitutions. After all by the new Constitution a Kingship or a communist regime was not to be introduced. There are fundamental differences between the two Constitutions and in fact the intention of the framer of the new Constitution was that there should be fundamental differences. The old Constitution had been found to be unworkable and one that would lead to internal disruption. If there was no fundamental change in the new Constitution there was no justification for the abrogation of the old Constitution and for the imposing of Martial Law for a long period of about four years. But we are really concerned with the intention. Is it possible to attribute to the Parliament of 1956 the intention that this law should ever apply to Assemblies created by the present system, a system, which is the result of the abrogation of the Constitution and of a revolution and between which and the system of 1956 there are such fundamental differences? If the intention of the Parliament of 1956 was to apply the Representation of the People Act only to Assemblies created by the Constitution of 1956 and if this was the only jurisdiction of that Parliament then would it make any difference if we assume for the sake of argument that the Representation of the People Act became an existing law by the Laws (Continuance in Force) Order? It would become an existing law only if there was an intention to recreate the provisions relating to the Assemblies. It seems almost impossible to assume that such was the intention of the President, but let us make this assumption. If then the pro visions were revived the Representation of the People Act became an existing law only with respect to those Assemblies which were recreated. 1f the Representation of the People Act did become an existing law with respect to those Assemblies how is it possible to apply it to the present Assemblies? The only effect of the Representation of the People Act being an existing law would be that just before the present Constitution came into force there would be a law providing for elections to the Assemblies under the revived provisions of the late Constitution of 1956. How would that affect the present Assemblies? There is in the present Constitution a provision relating to the existing laws, that is, Article

225. But if the Assemblies which were created by the Laws (Continuance in Force) Order ceased to exist when the present Constitution came into force, then any law which relates to those Assemblies also ceased to exist and could not have become an existing law. The argument that applies to the provision relating to existing laws under the Laws (Continuance in Force) Order applies here too. If the Assemblies created by the Constitution of 1956 were abolished by the Proclamation and were not recreated by the Laws (Continuance in Force) Order, then the Representation of the People Act did not become an existing law by the Laws (Continuance to Force) Order. Similarly if the Assemblies were brought into existence by the Laws (Continuance in Force) Order, but stood abolished when the present Constitution came into force, then any law relating to such Assemblies did not become an existing law when the present Constitution came into force. In this connection we have also to keep in mind that the Parliament of 1956 had jurisdiction to enact laws only with respect to those Assemblies and, therefore, the provisions relating to existing laws in the present Constitution cannot possibly have the effect of applying the Representation of the People Act to the present Assemblies. The provision relating to existing laws cannot make laws applic able to institutions to which they could not have been made applicable by the Legislature that enacted them, for lack of jurisdiction. A provision as to existing laws does not grant some new powers of legislation with retrospective effect to defunct Legislatures. I find, therefore, that on the second point too the contention that the Representation of the People Act is still in force fails. I have to say a few words with respect to the applicability of Article 98 of the present Constitution to judicial acts. When is a judicial act without lawful authority? If in the procedure that proceeds the ultimate order there be non‑compliance with legal provisions will that itself render the ultimate order an order without lawful authority? It would be difficult for any person to put forward that every irregularity will have that effect. It is contended, however, in this case, that inadmissible evidence had been admitted by the Tribunal. I would be prepared to concede that the admission of inadmissible evidence would be an act which is without lawful authority, but that is not the act which is being challenged. The act which is being challenged is the ultimate order and the admission of inadmissible evidence does not make the ultimate order without lawful authority unless it appears that the inadmissible evidence affected the ultimate order In the present case it is not even correct that any inadmissible evidence was admitted, but in any case there was good and sufficient evidence, apart from the inadmissible evidence, which had been accepted by the Tribunal and on the basis of which the Tribunal could have recorded a finding. There was an objection as to onus and it is possible that improper allocation of onus may affect the ultimate decision in case' so as to render it without lawful authority. But in the present case there is only a verbal detect in the words used in the judgment and the intention of the Tribunal was not to place the onus of disproving his guilt on the respondent. The Tribunal found that evidence had been led which made nut a prima facie case and it is only on account of the presence of such evidence that the onus was e d to lie henceforth on the respondent. The order of the Tribunal was attacked as without lawful authority also on the ground that it misinterpreted the provisions of the Representation of the People Act and held the simple appearance of the respondent's name on the contractors' list to be a sufficient disqualification. It is urged that this was a clear error of law and such an error would make the decision "without lawful authority". The proposition is indisputable that when there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in case of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of law and a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law. We allow this appeal and direct that the writ issued by the High Court to quash the decision of the Election Tribunal should be recalled. We leave the parties to bear their own costs. A. H. Appeal allowed.