P L D 1969 Supreme Court 535 (PLP)

A. H. Mirza, Advocate Supreme Court instructed by A. W. Malim, Attorney for Respondent No.

1. Respondents Nos. 2 to 4: Ex parte. C. A. No. 56‑D of 1967: Asaduzzaman, Advocate Supreme Court instructed by Abdur Rab II, Attorney for Respondent No.

1. Respondents Nos. 2 to 5: Ex parte. Date of hearing: 16th June 1969. HAMOODUR RAHMAN, C. J.‑‑These two appeals arise out of the same judgment of a Division Bench of the High Court of East Pakistan whereby two petitions under Article 98(2) of the Constitution of 1962 were allowed, the order of the Election Tribunal, passed on the 12th April 1967, was set aside as having been made without lawful authority and an election petition, being Election Petition No. 5 of 1965, was sent back to the Election Tribunal, East Pakistan, for being tried according to law in the light of the observations made by the High Court. The above‑mentioned Election Petition was filed to challenge the election of Mohammad Shahidullah one of the respondents, in these appeals. He was elected as a Member of the National Assembly of Pakistan in the general elections, held on the 21st March 1965, from Constituency No. NE‑45 Dacca‑VII. There were four candidates contesting this election, including the said Mohammad Shahidullah, who secured 328 votes as against 34 votes secured by the appellant in these appeals, and 193 votes secured by the respondent Afsaruddin Ahmad. The fourth candidate, Mohammad Mujibur Rahman, secured only 10 votes. The appellant Abdul Hamid filed an Election Petition under section 57 of the National and Provincial Assemblies (Elections) Act (VII of 1964) for the following reliefs: (a) that the election of the returned candidate is void and that the petitioner has been duly elected ; and (b) that the election as a whole is void. The grounds upon which these reliefs were sought were that the respondent Mohammad Shabidullah and Afsarudin Ahmad and or their agents and representatives had procured almost all their votes by corrupt and illegal practices, such as payments of illegal gratifications and bribes to voters, entertainment of voters with grand ‑feasts, employment of vehicles for carrying voters to and from polling stations and by circulation of false and defamatory printed leaflets against the appellant in the name of fictitious persons without disclosing either the name of the press and/or the printer and publisher. The Tribunal found that the result of the election had been materially affected by the failure of the respondents Mohammad Shahidullah and Afsaruddin Ahmad to comply with the provisions of the National and Provincial Assemblies (Elections) Act, 1964, and the rules framed thereunder, and extensive corrupt and illegal practices at the election. The election as a whole was, accordingly, declared void but the prayer of the appellant for declaring him elected was rejected by the order of the Tribunal dated the 12th April 1964. Against this order the respondent Mohammad Shahidullah filed Petition No. 189 of 1967 and respondent Afsaruddin Ahmad filed Petition No. 201 of 1967, under Article 98(2) of the Constitution of 1962. Both these petitions were heard together by the High Court and were allowed on the ground that the Tribunal had not "conformed to the well‑established norms of a judicial trial" in so far as it had brushed aside the evidence of the defence witnesses without any valid reason, adopted different yard‑sticks for the evaluation of evidence adduced by the different parties and failed to notice that the election petition itself did not comply Kith the mandatory provisions of section 59 read with section 67 of the above‑mentioned Act. The judgment and order of the Tribunal was, accordingly, set aside and the election petition was remanded to the Election Tribunal for re‑trial according to law in respect only of the charges that had been found against the respondents. The High Court also granted a certificate under Article 58 of the Constitution of 1962 without mentioning as to what particular question of law as to the interpretation of the said Constitution arose in the case. The learned counsel, appearing for the appellant in both these appeals, has strenuously contended that these appeals have not become infructuous by reasons of the proclamation of Martial Law on the 25th March 1969, as according to him by virtue of the provisions of sub‑paragraph (a) of paragraph 5 of the said Proclamation, the National and Provincial Assemblies (Elections) Act, 1964, was still continuing in force as an existing law. In support of this contention he has also placed strong reliance upon the observation of Cornelius, C. J. in the majority judgment in the case of Badrul Haq v. Election Tribunal, Dacca (P L D 1963 S C 704), where it was observed that the "Representation of the People Act, 1957 survived the Revolution of the 7th October .1958" and "it is now existing law within the meaning of ‑ the new Constitution under Article 225." This decision is not, however, applicable in the facts of the present case, for, there the question was as to whether by the President's Order No. 4 of 1962, which contained a non‑obstante clause making the provisions of the said Order effective notwithstanding anything inconsistent therewith being contained ii, any other law for the time being in force, section 116 of the Representation of the People Act, 1957, had become impliedly repealed. This Court took the view that in the absence of anything to show that section 116 was in any way repugnant to the provisions of the President's Order No. 4 of 1'962, it could not be urged that section 116 of the Act of 1957 had been repealed particularly since the Presidential Order did not expressly repeal the Act of 1957 and Article 225 of the Constitution of 1962 had the effect of continuing the previous laws as existing laws. In the present case, it has to be pointed out that no newt Constitution has yet been framed nor has any legislative enactment yet been made to provide for any future election. The present position thus is that by the proclamation of Martial Law on the 25th March 1969 the Constitution has been abrogated, National and Provincial Assemblies dissolved and the President, Members of the President's Council of Ministers, the Governors of the Provinces and Members of their respective Councils of Ministers have ceased to hold office. Thus the previous system of representation for the people through elected representatives in the National and Provincial Assemblies chosen by an Electoral College, has been completely done away with. The dissolution of the Assemblies makes it abundantly clear that that part of the Constitution of 1962, by which the Assemblies were created is no longer in existence and they have certainly not been restored by the Provisional Constitution Order, promulgated on the 4th April 1969. There is also no Election Tribunal now by which the election petition can be re‑heard. It is, therefore, manifest that out of the two reliefs claimed by the appellant in his election petition he cannot now, as is frankly conceded by his learned counsel, claim to be declared elected to the National Assembly and so far as the other relief is concerned, he has already got that relief by the changed circumstances, for there is no National Assembly in existence to which the respondent Mohammad Shahidullah could claim to have been elected. It would, in the circumstances, now be a futile exercise to declare his election to a non‑existent Assembly void. The matter is no longer, therefore, a live issue. The only question which is now before us; namely, as to whether the High Court had rightly interfered with the order of the Election Tribunal under Article 98 of the Constitution of 1962, is now purely an academic question and this Court does not indulge in such purely academic exercises. Apart from this there is yet another reason upon which even if the National and Provincial Assemblies (Elections) Act be held to be an existing law, these appeals must be declared to have become infructuous. It is a well‑established rule, as stated in Halsbury's Laws of England, Third Edition, Volume XIV, page 286, that "a parliamentary Petition drops by the fact that Parliament) is dissolved while the petition is pending." In the case of Carter and another v. Mills (1874 L R 9 C P 117) where after the commencement of the petition but before the conclusion of its hearing the British Parliament had been dissolved by the Queen, Coleridge, C. J. observed; "The Queen having been pleased to dissolve Parliament, of which fact the Court must take judicial congnizance, case has arisen not expressly provided for in the Act (Parliamentary Elections Act 31 and 32 Viet. C. 125) and under these circumstances we must guide our proceedings by the old parliamentary practice on the subject. It is common knowledge, that according to the old practice the petition abated or dropped in such a case." Keating, J. was of the same opinion, for, he too held that "the effect of the dissolution, as it seems to me, is to cause the petition to drop". It is clear, therefore, that the moment the dissolution takes place the petition is at an end for all purposes. These principles are, in our view, applicable with equal force in the present case. The National Assembly having itself been dissolved by the Proclamation of the 25th March 1969 the position, in our opinion, is the same and all pending petitions must be dropped as having become infructuous. In these circumstances we dismiss both these appeals on the ground that they have become infructuous but make no order as to costs. K. B. A. Appeals dismissed.