P L D 1975 Supreme Court 300 (PLP)

In support of this contention learned counsel has also relied on a Privy Council decision in the case of N. W. F. Province v. Suraj Narain Anand (P L D 1949 P C 1) In that case, the Board had expressed the grounds for review thus:‑ "It suffices to say that the decision of the Board was given on the assumption, which then appeared to be Justified, and has not, indeed, been questioned that the Police Rules of 1937. to which the judgment refers, had become operative in the year 1939, and at some date before 25th April 1938, when the respondent was dismissed from the force. Subsequently to the delivery of the judgment, and before their Lordships had to tendered their advice the respondent submitted a petition wherein they prayed that their Lordships might reconsider their decision, mainly on the ground that it had been ascertained that the police Rules of 1937 were in fact printed and published on 29th April 1938, that is to say, four days after the dismissal of the respondent." On these grounds, their Lordships of the Judicial Committee found it necessary to hear further arguments on 29th July 1948, when counsel for both parties admitted that the Police Rules of 1937, were, in fact, printed and published on April 29, 1938, as the respondent alleged. In these circumstances the Judicial Committee observed:‑‑ "It follows, in the opinion of their Lordships, that, applying the reasoning contained in the judgment previously delivered they can only come to the opposite conclusion to that which they had formed on what is now shown to be an erroneous assumption as to a material fact." When this matter first came up before this Court on the 10th October 1974, the learned counsel for the respondent entered a Caveat and contended that since this was not the only ground on which the appeal had been dismissed, the Court should not interfere but should dismiss the review petition in amine. The Court, however, felt that since, one of the findings in the previous judgment proceeded on a wrong assumption of fact, the review petition should be admitted to consider, whether but for such wrong assumption of fact, the Court could have possibly come to era opposite, decision on the reasoning contained in the previous judgment? We have now heard both the learned counsel at length. They have not confined their arguments merely to the scope of the review but have also gone into the merits of the decision including the interpretation of section 104 of the National and Provincial Assemblies (Elections) Act, 1964. The oral arguments have also been fu, them supplemented by written arguments. The learned counsel for the petitioner has contended that since the dis qualification, imposed by the above‑mentioned section, flows from the conviction, it is an incident of the conviction and, therefore, a part of the: punishment. It is the law which, according to him, attaches the disqualification as a punishment and the Chief Election Commissioner has only been left with the power to quantify the period of the disqualification. He does not, therefore, have the right to determine the terminas a quo of the punish ment. The words "if the Commissioner makes an order to that effect" do not vest him with the power to impose the disqualification but are referable only to the power to mitigate or remit the disqualification under section 99 of the said Act of 1964. The question of mitigation or remission ''can' only arise if the disqualification has already been incurred and not if the disqualification is to be incurred in pursuance of an order to be subsequently made by the Commissioner. Learned counsel for the respondent has, on the other hand, contended, by comparing the provisions or the National and Provincial Assemblies (Elections) Act, 1964, with corresponding provisions of the Government of India Act, 1935, the Constitution of 1956, the Representation of the Peoples Act (XXXI of 1957) and the Electoral College Act, 1964, that the scheme of the National an Provincial Assemblies (Elections) Act, 1964, is different to the schemes of the other Acts. Under the National and Provincial Assemblies (Elections) Act, 1964, the non‑filing of a return by any can didate, elected or not elected was made an illegal practice, was made punish able as an offence and the punishment for the said offence was, by reason of the provisions of section 100, in addition to and not in derogation of any other liability incurred by such a person under the other provisions of the said Act. The disqualification was, not, therefore, a part of the punishment or sentence. A sentence, it is said. simply means the direction by which a punishment is prescribed and meted out to a person who has been convicted of an offence. It does not, therefore, include a disqualification which is not a. punishment prescribed for the offence but arises as a consequence thereof and is a liability as prescribed by the Act itself in addition to the sentence and not as a part of the sentence. It may or may not be incurred. It is incurred only if an authority other than the Tribunal or the Court con victing a person or finding him guilty "makes an order to that effect". The making of the order is a condition precedent to the incurring of the disqualification. It is for this reason that the Commissioner has also been given the power to specify the period. He has, by necessary implication, therefore, the power also to fix the terminus d quo, but if he does not do so then the disqualification must necessarily be from the date of the order and not from the date of the conviction or finding of guilty. We have noticed these contentions but we do not propose to deal with them as a review cannot be made a pretext for rearguing the whole case. We are not prepared to reopen the question of interpretation of section 104 of the National and Provincial Assemblies (Elections) Act, 1964. As regards the question as to whether the review should he granted or not, the learned counsel for the respondent has contended that the review should not he granted, as this was not the only ground on which the appeal was dismissed. He has referred us to the paragraph immediately, preceding the penultimate paragraph of the judgment wherein it has been said that in the present case, since it was not known as to when the report under section 99 of the Act of 1964 was submitted to the Commissioner; it cannot be said that the Commissioner had acted arbitrarily in fixing the period of two years from the date of his order in 1969. The said period of two years, if he Assembly elected in 1965, had run its full course may well have coincided with the life of that Assembly. The difficulty has arisen pause the Assembly was dissolved earlier by reason of the imposition of Martial Law. It meow transpires, however, that the report was submitted on the 12th December 1968, and the order of the Chief Election Commissioner Was passed on the 8th March 1969. There was, therefore, no undue delay in the passing of the order by the Chief Election Commissioner. The delay occurred in the submission of the report. Learned counsel for the respondent also contended that since this point was not taken either in the High Court or in this Court, the review ought not to be allowed on this ground. In this behalf reliance is placed on two decisions of this Court in the cases of Mst. Sardar Begum v. Settlement Authority and another (1969 S C M R 962) and Khairati v. Alimuddin (P L D 1973 S C 295), but, it must be pointed out that. in the present case, the respondent was the petitioner in the High Court and the petitioner came to this Court from the judgment of the High Court. The present petitioner could not, therefore, have raised this point in the High Court. He did, however, mention this fact in his para wise comments filed in the High Court and this was noticed in the judgment of the High Court. In this Court no occasion arose for him to take this point. Learned counsel has also referred to two decisions of this Court in the cases of Syed Nazir Ahmad Shah v. Federation of Pakistan (1970 S C M R 28) and Abdul Majid v. Chief Settlement Commission Pr (1970 S C M R 34) to support his contention that a review cannot be allowed for the purposes of re‑argument of a case and a mere plea that another interpretation of a provision of an enactment is possible is no ground for a review. The learned counsel for the petitioner has, on the other hand, maintained that where two interpretations are possible of a penal provision in a statute then the one which is more favourable to the person sought to be penalized is to be preferred, and, therefore, out of the two views with regard to the inter pretation of section 104 of the National and Provincial Assemblies (Elections) Act, 1964, the one more favourable to the petitioner should be accepted. The only question before us is whether, by reason of the fact that one of the findings of the Court was based on an erroneous assumption of fact, we should review that finding or for that matter the previous decision. It is no doubt correct that a decision based on an erroneous assumption of fact is liable to be reviewed, but, even in this connection, it has to be pointed out that the view of this Court as expressed in the case of Faqir Muhammad Khan v. Akbar Shah (P L D 1973 S C 110) is that:‑ "The granting of a review is still in the discretion of the Court. It is not bound to grant a review even where adequate ground exists but the discretion must, ac in the case of all judicial discretions, be exercised upon sound judicial principles." The review is not, therefore, as a matter of right, even though a ground for a review exists. In the circumstances, we have to consider to this ease whether, even if the finding based on the erroneous assumption is excluded there is any ground for the review of the final decision of this Court dis missing the appeal of the petitioner. This was exactly the reason, which influenced their Lordships of the Judicial Committee, to review their earlier judgment in Surnj Narain Arnand's case. 1n that case, as is apparent from the excerpt from the judgment of their Lordships set out above, the fate of the appeal hinged on the fact whether the Police Rules, 1937, were in force on 25‑4‑1938, when the appellant in that case was dismissed. Indeed that was in the nature of a jurisdictional fact and therefore went to the root of the matter. There is a great deal of force in the contention of the learned counsel for the respondent that the petitioner did not take any further steps to challenge the decision of the High Court in Writ Petition No. 1404 of 1970. If he was aggrieved with that decision, he should have come to this Court for special leave to appeal, but he did not do so. Instead, he took the risk of relying upon that decision and contesting the elections, notwithstanding the observation of the High Court that "the question whether the petitioner suffers from a disqualification for the purposes of the Legal Framework Order, 1970, will have to be determined by the Returning Officer at the relevant time, if the petitioner elects to contest the election." This certainly was not a decision in favour of the petitioner. In fact, it was no decision at all one way or the other as to the validity of the order of the Chief Election Commissioner. The petitioner, therefore, consciously took the risk and he cannot now complain if the decision has gone against him. Even after excluding the finding given in the penultimate paragraph of the earlier judgment of this Court, I am of the view that the dismissal of the appeal on the basis of reasonings in tire earlier portions of the said judgment would still remain justified. We have observed in that judgment that where no time is fixed under a law for the doing of an act it has to ‑be done within a reasonable time and now we find that there was no unreasonable delay in the disposal of the matter by the Chief Election Commissioner. The report was sent to him under section 99 of the Act of 1964 on the 10th December 1968, and he made the order on the 8th March 1969. We have already found that it cannot be said that he acted either arbitrarily or whimsically. In the circumstances, his order could not have been challenged in the High Court in the writ jurisdiction, because, he had the jurisdiction to make the order. Its validity could only have been chal lenged in a writ petition on the ground of want of jurisdiction or at least an error apparent on the face of the record. The order did not suffer from any such defect. It was quite possible for the Chief Election Commissioner to have bona fide, even though erroneously, held that he had the power to fix the terminus a quo of his order. Even in the penultimate paragraph of the judgment of this Court, there is no finding that the Chief Election Commissioner had no power to fix the terminus a quo of the disqualification. All that had been said is that:‑ "Normally, the disqualification should be made to commence from the date of the conviction." This presupposes that, in certain circumstances, the disqualification could well be made to commence from some other data. It cannot, therefore, be said that the wrong assumption of fact was the sole ground for the dismissal of the appeal of the petitioner. In the circumstances, I am of the view that this review petition should also be dismissed but without any order as to costs. SALAHUDDIN AHMAD, J.‑-I agree. MUHAMMAD GUL, J.‑--I agree. K. B. A. Petition dismissed.