P L D 1966 (W (PLP)

MUSHTAQ HUSSAIN,, J.-This writ petition arises out of an order passed by the Member, Election Commission whereby it disposed of two appeals, one filed by Khan Nasrullah Khan Khattack, the present petitioner, and the other by Mian Jamal Shah, the present respondent No. 3.

2. Khan Nasrullah Khan, petitioner, and Mian Jamal Shah, respondent, were amongst five candidates who contested the recent elections to the National Assembly for being returned from the Constituency described as North-West 11, Peshawar II. At the close of poll when the Presiding Officer proceeded to count the ballot papers in favour of each contesting candidate, as prescribed by section 36 of the National and Provincial Assemblies (Elections) Act, VII of 1964, he found that amongst the ballot papers, cast in favour of Mian Jamal Shah, respondent No. 3,- (a) one-rupee currency notes were enfolded in twelve ballot papers, (b) a portion of a five-rupee currency note was enfolded in one ballot paper, (c) an old pice coin, which had a hole in it, was enfolded in another ballot paper, and (d) small chits of paper bearing the Arabic inscription, "Bismillah Arrahman Nirrahim", in the same kind of hand writing, on the same sort for of paper and the same ink, were enfolded in twelve ballot paper. A similar chit was recovered from a ballot paper marked in favour of another candidate.

3. The Presiding Officer unfolded the ballot papers, detached the articles mentioned above from them, prepared a separate note giving all these facts in it, sealed all these recovered articles in a separate envelope and separated the ballot papers which contained currency from ballot papers mentioned above on the ground that the electors, who cast them, can be identified on account of the currency in them. The others, which contained the said chits, were, however, not separated and were placed in the packet in which the other ballot papers of Rahmat Ullah and Mian Jamal Shah were put because the Presiding Officer was of the opinion that they did not have any marks by which the voters could be identified.

4. On the basis of this opinion, the Presiding Officer prepared a statement of the count of votes showing that Mian Jamal Shah had received '252 votes and Khan Nasrullah Khan as having polled 240.

5. The stage having thus been set for counting of votes, the Returning Officer proceeded to do so under section 38 of the Act. He agreed with the Presiding Officer as regards the ballot papers which contained currency and, therefore, proceeded to reject them as they bore a mark by which the elector can be identified. He also agreed with the Presiding Officer in his conclusions regarding the ballot papers which contained chits bearing the inscription, referred to above, and proceeded to count them amongst the valid votes. He declared Nasrullah Khan elected to the seat with 237 `valid' votes as against Mian Jamal Shah, who received 233 `valid' votes as a result of the rejection.

6. Both Khan Nasrullah Khan and Mian Jamal Shah filed separate appeals against this order, the former contending that the ballot papers, which bore the inscription, should also have been rejected, while the latter claimed the seat on the basis that the ballot papers, some of which contained the currency, had been illegally rejected and excluded from the count.

7. Both these appeals were disposed of by the Election Commission by its order dated the 1st, of April 1965. The Commission found that- "(a) the Returning Officer was not justified in having rejected one ballot paper of Mr. Nasrullah Khan Khattack. His valid votes, therefore, are 237, plus 1=238; and (b) that the Returning Officer had wrongly rejected two ballot papers of Mian Jamal Shah which bore the seal but not the initials and he was also not justified in deducting 14 votes from his count. The valid votes, cast in favour of Mian Jamal Shah, are 233, plus 2, plus 14=249." He declared Mian Jamal Shah to be elected to the seat. Hence this petition by Khan Nasrullah Khan.

8. The petitioner contends that- (a) the entire dispute before the Election Commission and now before this Court fell within the exclusive authority of the Commission and that the Election Tribunal was debarred under the law from taking cognizance of such a dispute. It was, therefore, for the Election Commission to have determined the matter in accordance with law and by refusing to do so it had acted without lawful authority; and (b) the currency and the chits enclosed in the enfolded ballot- papers fell within the definition of a mark by which an elector can be identified and, therefore, the Election Commission acted without lawful authority in refusing to exclude them from the count and by counting the votes represented by them as valid votes.

9. Written-statements have been filed by respondent No. 1, the Member, Election Commission, and respondent No. 3, Mian Jamal Shah. The latter has raised a preliminary objection that the provisions of Article 171 (1) of the Constitution are an insurmountable hurdle in the way of this Court exercising jurisdiction under Article 98 in the present case. Respondent No. 1 in addition to this preliminary objection raised another, that is, there being an alternative adequate remedy in the shape of an Election Petition before a Tribunal, this Court cannot proceed with the matter under Article

98. We will first deal with these preliminary objections as they, if answered in the affirmative, would clinch the matter and non-suit the petitioner.

10. Taking the second objection first, the question to be answered is whether there is another adequate, remedy open to petitioner. Article 171 of the Constitution provides that a may be made for the resolution of disputes arising 'in connection with the counting of votes to be finally determined by the Commissioner or an Election Commission and other disputes arising in connection with an election to be finally determined by a Tribunal: and it further provides that no such dispute shall be decided otherwise than under such a law and the validity of such an election shall not be called in question except in accordance with a such a law.

11. The law made for this purpose by the Central Legislature is the National and Provincial Assemblies (Elections) Act, VII of 1964. Chapter 6 of that Act deals with electron disputes, Section 52 provides that "no election shall be called in question except by an election petition under section 57" except on grounds which can be raised by way of an appeal under section

53. The intention of the Legislature to exclude matters covered by section 53 from the jurisdiction of Election Tribunals is so manifest that the second clause section 52 further emphasises it by providing that- "no question that can be raised in an appeal under section 53 shall be raised by an election petition or before any Court or authority whatsoever, nor shall any question that can be raised by an election petition be raised before any such Court or authority." The spheres of action of these two bodies are, therefore, contained in two water-tight compartments and the field occupied by the authority of one is forbidden ground, for the other.

12. The problem, therefore, can be looked into from two angles, that is, whether- (a) the question can be raised by an election petition and is covered by section 57, or (b) it falls within section 53 of the Act and is in the exclusive purview of the Commission.

13. Section 57 confers upon a candidate the right to file an Election Petition on one or more of the grounds mentioned in section

72. The limits of the preserve of the Tribunal are, therefore, those which have been provided for in the latter section. Section 72 (1) provides that- "The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that- (a) the nomination of the returned candidate was invalid; or (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected to the seat in question; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his election agent." This is followed by two provisos which need not be reproduced here.

14. The present dispute is admittedly not relatable to the first two grounds contained in section 72 (1). Learned counsel for respondent No. 3, however, insisted that it was covered by clause (c) of section 72 (1). Let us, therefore, examine if it can be said that the election of the returned candidate has been procured or induced by any corrupt or illegal practice.

15. Corrupt practice has been defined in section 80 and amongst other things includes bribery, personation or undue influence. It is no-body's case that the present case can be brought within the definition of any other act or omission detained in that section. It was contended that this was a case of undue influence.

17. Section 84 provides that- "A person is guilty of undue influence, if he- (1) in order to induce or compel any person to vote or refrain from voting, or to offer himself as a candidate, or to withdraw his candidature, at an election, directly or indirectly, by himself or by any other person on his behalf,- (a) makes or threatens to make use of any force, violence or restraint ; (b) inflicts or threatens to inflict any injury, damage, harm or loss; (c) calls down or threatens to call down divine displeasure or the displeasure of any saint or Pir ; (d) gives or threatens to give any religious sentence; or (e) uses any official influence or governmental patronage; or (2) on account of any person having voted or refrained from voting, or having offered himself as a candidate, or having withdrawn his candidature, does any of the acts specified in clause (1); or (3) by abduction, duress or any fradulent device or con trivance,- (a) impedes or prevents the free exercise of the franchise by an elector; or (b) Compels, induces or prevails upon any elector to vote or refrain from voting."

17. In the present case no allegations have, at any stage, been made that the mark on the ballot paper, if it is a mark, was made in furtherance of a previous arrangement between the electors making them, and either the candidate or his agent, or any other person on his behalf, whereby any bribe was offered to the electors for so doing. None of the acts detailed in section 84 or any other act of a similar kind was done by the candidate or on his behalf to induce the electors, who made the marks referred to above, to cast' their ballot in favour of the respondent. The allegation simply is that for some reason or the other the electors concerned have cast their ballots in such a manner as to reveal their identity, not to the whole world, but to the candidate or. any body else whom they wanted to know that they have cast their votes for the respondent. In a given case B, an elector, goes to A, candidate, and tells him that he has of his own volition, and for no other consideration than exercising his vote in favour of the best amongst the candidates, decided to poll his vote in favour of A, and for that purpose has decided to place half the portion of a five-rupee note in the folds of his ballot-paper and give the other half to the candidate so that when the ballot-papers are taken out by the Presiding Officer the agent of the candidate may be able to see for himself, by comparison of the numbers if necessary, that the vote has been cast in his favour. Will it be possible for the defeated candidate to raise this question in a Election Petition before a Tribunal? The answer obviously would be "no" because no corrupt practice, undue influence, bribery or illegal practice, as defined in the Act, are involved. Nothing more than this is alleged in the present case.

18. Learned counsel for respondent No. 3 suggested that; the case was covered by section 84 (3) (a) and that it was a case of undue influence falling within the scope of the authority of the Tribunal. The relevant provision runs as follows. "A person is guilty of undue influence, if he-- (3) by abduction, duress or any fraudulent device or con trivance,- (a) impedes or prevents the free exercise of the franchise by an elector; or (b) compels, induces or prevails upon any elector to vote or refrain from voting." The submission was that the moment an elector and a candidate enter into an arrangement whereby the former is to act in such a manner as to reveal his identity to the candidate by placing a mark on his ballot paper, with a view to proving to the latter that he had voted for him, they have used a fraudulent device or contrivance. And since the device or contrivance was used to prevent the free exercise of the franchise by the elector, because after this arrangement he is bound to vote for- the said candidate, this is a clear case of the exercise of undue influence as detailed in section

84. The crux of the provision quoted above is that the result of the device or contrivance adopted by the candidate should be to impede or prevent the free exercise of franchise. In the case before us there is no allegation by the petitioner that respondent No. 3 had procured his election by any such device and surely it is difficult for us to believe that the learned counsel for respondent No. 3 wishes to suggest that it is his client's case that he procured his election to the seat by using undue influence. At best, the allegation is that a mark, assuring that the placing of a foreign body in a ballot paper is a mark is borne by some ballot-papers whereby the elector can be identified. The reason for so doing has not been suggested by the petitioner and it is not for us to travel in the realm of conjecture and speculate about the reasons that could have impelled the electors who cast the objectionable ballot-papers to have marked them in the manner that they did. In the absence of any allegation regarding the impeding or preventing of the free exercise of the franchise by the voters who cast the objectionable ballot-papers the very substratum of an accusation under Article 84 is not available and, therefore, the argument of learned counsel for respondent No. 3, that an election petition would lie in the present case on this ground, is without any basis.

19. It was then postulated that the case would fall under section 82 (2) (a) (ii) and the Election Tribunal would be the proper forum for adjudicating upon it. Section 82 (2) (a) (ii) runs as follows:- "A person is guilty of bribary, if he, directly or indirectly, by himself or by any other person on his behalf,- (2) gives, offers or promises any gratification to any person (a) for the purpose of inducing- . . . . . . . . . . (ii) an elector 'to vote, or refrain from voting, at an election;" This submission is again based on a hypothesis which exists only in the mind of respondent No. 3 because it is not founded on the averments contained in the record before us. The petitioner has, in any case, never made any such allegation.

20. Learned counsel for respondent No. 1 has sought to bring the case within the pale of the authority of the Election Tribunal on the basis that the Presiding officer committed some illegal acts while performing his functions under section

36. Section 36 (1) (b) (ii) runs as follows:- "Immediately after the close of the poll, that is, as soon as the last of such persons, if any, as are present and waiting to vote as mentioned in section 35, has voted, the presiding officer shall, in the presence of such of the contesting candi dates, election agents and polling agents may be present- . . . . . . . . . . . . (b) count in such manner as may be prescribed the ballot papers in favour of such contesting candidate excluding from the count the ballot, papers which bear,- . . . . . . . . . . . . (ii) any mark by which an elector . . . . . . . . . . . . can be identified, . . . . . . . . . . . . (d) put the ballot-papers excluding from the count .in a separate packet indicating thereon the total number of ballot papers contained therein.

21. In the present case the Presiding Officer failed to exclude the ballot papers which contained the foreign bodies and instead of placing the former in a separate packet as required by this section, sealed them in the same packet in which the other votes of the contesting candidate concerned were sealed. There can, therefore, be no doubt that the Presiding Officer failed in his statutory duty.

22. Section 59, which lays down the material which an election petition contains, specifies in clause (b) that full particulars, inter alia, of illegal acts alleged to have been committed shall also be given,

23. Section 72 (3) provides that- "The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the: election has been materially affected by reason of- (a) the failure of any person to comply with the provisions of the Constitution or this Act and the rules;" Learned counsel for the Election Commission argued that in the present case the presiding officer had failed to perform a duty imposed upon him by the Act, and the Tribunal, therefore, had the authority to go into the question and act under section 72 (3). This argument has two patent lacunae.

24. The Election Tribunal can interfere only if it is proved that such an act by the Presiding Officer had materially affected the result of the Election. In this case it has not so happened. The Returning Officer declared the petitioner to be elected by rejecting as many votes as there were foreign bodies enclosed in ballot papers on the basis of the report made by the Presiding Officer. The non-exclusion of the ballot papers by the Presiding Officer as required by section 36, therefore, did not affect the result of the election at all. The learned member, Election Commission, has reversed the declaration because, according to him, the non-exclusion of the objectionable ballot papers did not leave him with the power to reject them since it was not possible for him to lay his hands on the particular ballot papers which should have been excluded. There might have been some force in the argument of the learned counsel if the reason given by the learned member were to be accepted as valid. We, however as well be presently demonstrated, are in respectful disagreement with him on that point. It is, therefore, incorrect to assume that the "illegal act" committed by the Presiding Officer had materially affected the result of the election.

25. Secondly, as would be plain from a bare reading of the provision, quoted above, the Tribunal shall declare the election as whole to be void if it were to uphold an allegation like the one that this subsection contemplates. Neither of the parties seeks this relief for each one of them wants the validity of the election to be maintained and its own success declared. This is not the relief which can be granted by the Tribunal under this subsection.

26. Thirdly, the grievance is not on account of an illegal act committed by the Presiding Officer, but of the refusal to uphold the rejection of ballot papers which bore marks by which the elector can be identified. The contention of the learned counsel for the member, Election Commission, is, therefore, devoid of all force and no election petition is competent on the facts of this case. If, then, no Election petition would in such circumstances lie, what other remedy is open to a defeated candidate in such a case to enable him to get redress for his grievance that ballot papers bearing marks whereby a candidate's identity can be revealed, have not been rejected. The only other, authority for resolution of disputes concerning the election authorised by the law is the Election Commission, the authority of which extends only to the counting of valid votes and there can be no gainsaying the fact that if the Commission is to exercise that authority in accordance with law, it is incumbent upon it, inter alia, to find out which of the ballot papers, if any, has a mark by which the elector can be identified. The mere fact, that the marks is not such as could enable everybody to discover the identity of the elector by merely looking at it would not exclude the ballot-paper from the mischief of section 38 (2) (b).

27. Having seen that no election petition is competent we proceed to find out if section 53 of the Act is applicable and the learned member, Election Commission, had the lawful authority to determine the question raised before him in appeal.

28. The relevant portion of this section runs thus: "(1) A contesting candidate who is aggrieved by any pro ceeding under section 38 relating to the count may prefer an appeal challenging the count to the Commissioner. . . . . . . . . . . . . (4) The Commissioner may after giving the parties concerned an opportunity of being heard,- (b) if it is not so dismissed, determine the result of the election on the count of valid votes as corrected and make such consequential orders or as may be necessary." We have already seen that section 52 (2) emphatically bars the raising of a question by an election petition which can be raised O in an appeal under section 53.

29. Since the duty of the Commissioner is to count valid votes as corrected, his authority must necessarily also extend to determining which votes are valid and which not. We have already seen in section 38 that if a ballot paper bears any mark by which the elector can be identified it has to be rejected. The question raised in appeal before the learned Member of the Commission was that the result of the election had been determined on the count of votes, some of which were not valid, because it was urged that they bore marks by which the elector could be identified. The duty, therefore, to determine whether the allegation was correct or not was that of the learned Member of the Commission, because it was he who has to count the valid votes as corrected. He, however, observed that- "The question which he is to argue is that the Presiding Officer should not have separated the currency notes from the ballot papers and that he should have rejected them. The other question which he raises is that there was an arrangement between the candidate and the electors by which the elector can be identified. These questions are beyond the scope of section 53 and election petition, therefore, is not incompetent." He, therefore, by declining to go into the question himself refused to exercise an authority vested by law in him alone and, therefore, acted without lawful authority.

30. Having come to the conclusion that there is no other remedy, much less any adequate remedy, available to the petitioner, we now proceed to examine the other submission, made at the bar, that the provisions of 'Article 171 of the Constitution oust the jurisdiction of this Court to issue an order under Article 98 of the Constitution. It was contended by learned counsel for respondent No. 1, an argument later f adopted by learned counsel for respondent No. 3 also, that Article 171 of the Constitution provided. for the final determi nation of disputes arising in connection with the counting of votes by the Commissioner or an Election Commission, and since the determination was to be final it could not be questioned before this Court under Article 98.

31. Article 164 of the Constitution provides that elections required to be held under the Constitution shall be conducted and decided in such manner as may be provided by law. This Article contemplates the framing of a law relating to the conduct of the elections as well as their decision, and in our opinion these two stages are over before the disputes pertaining tot the elections which are referable to an Election Tribunal or to the Commission arise. In other words, Article 164 does not refer to the enactment of any law which relates to the Resolution of Election Disputes. It can, therefore, not be maintained that this Article acts as a curb on the power of this Court under Article

98. Even if election disputes were covered by this Article, there is an all important rider contained in it, which is couched in their words- "subject to this Constitution", and the power of this Court under Article 98 is, of course one of the clogs contained in the Constitution which control the provisions of this Article. Viewed from whichever angle, therefore, this Article has no reference whatsoever to the exercise of the special original jurisdiction of this Court in a matter like the one before us.

32. The other Article which is relevant to the point under consideration is Article 171 (1) which runs as follows:- "Subject to clause (2) of this Article provision way be made by law- (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission, and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a Tribunal established for that purpose, and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in , question except in accordance with such a -law." This Article and particularly the words "determined 'finally" are being pressed into service in support of the proposition that the jurisdiction of this Court in matters enumerated in this Article has been excluded by the Constitution itself. It was contended that since Article 171 provides in unambiguous terms that the disputes will be finally determined by the Commissioner or an Election Commission and since it is a provision contained in the Constitution itself it would operate to oust the jurisdiction of the High Court under Article 98 in matters relating to disputes arising in connection with the counting of votes.

33. There are two more sub-Articles under this Article and they deal with the election of the President and acts done by the Commissioner under Article 160, 161 or

162. Both these sub- Articles provide that the matters covered by them- "shall not be called in question in any manner before or by any Court or authority whatsoever." It is a time honoured principle of law that the jurisdiction of superior Courts is not taken away except by express words. Evershed M. R. during the course of the judgment of the Court of Appeal in Goldsack v. Shore ((1950) 1 A E R 276) observed that- "I accept the submission of counsel for the plaintiff that the jurisdiction of the King's Courts must not be taken to be excluded unless there is clear language in the statute which is alleged to have that effect. Illustrations were given during the course of the argument of results that might arise if the Courts were wholly debarred from adjudicating in respect of a transaction of this character. In such a case the party whose land was affected might be left wholly without any remedy."

34. Similarly, in Southampton Bridge Company v. Southampton Board of Health ((1858) 8 E & B 801) it was emphasised that- "words should be very strong which are relied upon to take away such power."

35. A number of cases are quoted in Maxwell on the Interpretation of Statutes 11th Ed. at p. 124 in support of the principle that the words- "the case shall be heard and finally determined below, would not be construed as prohibiting such interference, and enactments which expressly provide that such proceedings shall not be removed by certiorari to the High Court have no application when the lower tribunal has overstepped the limits of its jurisdiction in making the order

36. This is, therefore, settled law and unless express word to oust the jurisdiction of Courts and particularly superior Courts are used the Courts will always lean in favour of the construction that the Legislature did not intend to oust it. The makers of the Constitution were not oblivious of this canon of interpretation and when they wanted to oust the jurisdiction of Courts they did so in unambiguous and forceful terms as we find in Article 171 (2) and (3). There is no reason to suppose that although they wanted to exclude the Courts from exercising their constitutional jurisdiction under Article 98 in matters covered by Article 171 (1) they did not use the words necessary for such an exclusion which have, in fact, been employed in the later part of this very Article in respect of matters which were intended to be placed beyond the reach of Courts. When the makers of the Constitution have used different expressions in different parts of same Article the only inference that can be drawn is that different results were sought to be achieved.

37. This inference gains support from section 52 of the National and Provincial Assembly (Elections) Act, 1964 which has provided that matters which can be raised in an appeal under section 53 shall not be raised by an election petition and vice versa, that is to say, the order passed by one cannot be interfered with by the other and are, therefore, final.

38. Section 52 has gone or to exclude the jurisdiction of Courts, also in the words employed in Article 171 (2) (3). To the extent that it impinges upon the jurisdiction of the High Courts under Article 98 it will be ultra vires the Legislature.

39. Article 116, which is meant to protect the President and Governors and 117, which extends to Ministers also, have been so worded as to expressly oust the jurisdiction of the Courts to a particular extent and it has not been left to words such as those used in Article 171 (1).

40. It is, therefore, clear that wherever the jurisdiction of Courts was to be ousted- the makers of the Constitution have not left it to implication but have used clear and forthright language to achieve this object.

41. Our conclusion, therefore, is that determination of disputes covered by Article 171 (1) is not exempt from judicial review under Article 98.

42. The Chairman of the Election Commission as well as the members are to be appointed by the President. The Consti tution does not prescribe any particular walk of life from which the Commissioner is to be drawn. It may be mentioned that he is required by the Constitution to make an oath before the Chief Justice of the Supreme Court in a form prescribed by the Constitution. He is entitled to the same salary and allowances as a Judge of the Supreme Court. His removal from office is controlled by the same conditions as those of a judge. In the event of a vacancy in the office of the Commissioner or in case he is absent or unable to perform the functions of his office, a Judge of the Supreme Court, nominated by the Chief Justice of that Court, shall act as Chief Election Commissioner and perform the functions of that office. The other two members of the Election Commission are to be a Judge of the High of East Pakistan and a Judge of the High Court of West Pakistan to be appointed by the President after consultation with the Chief Justice of the Court concerned and the Commissioner. We thus find that the two members are to be Judges of the two superior provincial Courts of the country and m case an acting Chief Election Commissioner has to be appointed he would be a Judge of the highest superior Court of the country.

43. It was contended before us, of course without the support of any authority, that a Writ, or an order of that nature under Article 98 of the Constitution, cannot be issued by this Court to a body which consists of Judges drawn from one of the Superior Courts, and which can be presided over, in certain circumstances, by a Judge of a higher Court. This question requires consideration in two different perspectives, that is, the English Law on the subject and the law as enunciated by Article 98.

44. The prerogative writs of mandamus, prohibition and certiorari were discontinued in England on the coming into force of the Justice (Miscellaneous Provisions) Act, 1938, and for them were substituted orders with the same names. An order of mandamus according to Halsbury is, in form, "a command directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty'. Similarly `an order of certiorari is an order, directed to an inferior tribunal, requiring the record of the proceedings in some cause or matter to be transmitted into the High 'Court to be dealt with there'. Lord Atkin, Lord Justice, during the course of his judgment in R. v. Electricity Commissioners (1923 A E R 150 at p. 160) referring to the writs of prohibition and certiorari observed- "Both writs are of great antiquity, forming part of the process by which the King's Courts restrained Courts of inferior jurisdiction from exceeding their powers . . . whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority, they are subject to the controlling jurisdiction of the King's Bench Division, exercised in these writs."

45. It is an established rule of law in England that one superior Court cannot issue. a writ to another superior Court of co-ordinate jurisdiction nor can such a Court issue a writ to itself. The question came up for consideration in Rex v. Justices of the Central Criminal Court (1925 All E R 429). In that case the petitioner sought a writ of certiorari from the King's Bench Division for removing into that Court an order passed by the Central Criminal Court for being quashed. The Attorney-General objected on the ground that the King's Bench Division did not have any jurisdiction to issue such a writ to the Central Criminal Court since the latter was a superior Court. The following observation by Lord Hewart, C. J. may be quoted with advantage:- "Judges of assize are exercising powers upon the same plane with the powers exercised by Judges of the High Court in these Courts. The Central Criminal Court is a Court of not less authority than the Court of assize. It is a superior Court, and a writ of certiorari from the King's Bench does not lie to the Central Criminal Court." His Lordship went on to observe during the course of that judgment at page 433- "In the other case the superior Court is invited to quash that which it itself has done, and the process involves the rather ludicrous position that Judges are called upon themselves to show cause to themselves why they should not be directed to remove, so that it may be quashed, something which they themselves, after hearing, have determined." After quoting a passage from Short and Mellors Crown Office Practice, Avory, J. made the following observation:- "That proposition, I understand, is not disputed by Counsel supporting the rule, but he says either that the Central Criminal Court is as inferior Court within the meaning of that rule, or, if it is not for all purposes an inferior Court, that for the purpose of exercising its jurisdiction under section 20 of the Act of 1834 it is an inferior Court which is, subject to the overriding jurisdiction of this Court. At first sight one would say that no Court can issue a writ of certiorari directed to itself to quash an order made by itself. That is what this proposition comes to when we remember that all the Judges of this Court who by section 2 of the Act of 1834, are to "use and exercise all powers and authorities belonging to Justices of Oyer and Terminer and Gaol delivery." The order of this case must be presumed to be made, therefore, by Judges of this Court because it is an order of the Court. It matters not by which particular two Judges the order is signed. Being an order of the Court it is, in effect, an order of the Judges of this Court." It has to be remembered that by the Judicature Act, 1837, and the Supreme Court of Judicature (Consolidation) Act, 1925, it was expressly enacted that the Judges of assize are part of the High Court of Justice. And therefore, their Lordships in that case correctly remarked: "I confess I am unable to appreciate 'how a Court can for one purpose be a superior Court of record and for another purpose be an inferior Court of record . . . . " Reference was made in that judgment to several other decisions including R. v. Central Criminal Court Judges and Justices ((1883) 11 Q B D 479); R. v. Boaler ((1892) 67 L T 354); R. v. Northallerton County Court Judge ((1898) 2 Q B 680) and some other cases which were to the same effect. In ex parte Feranndoz (10 C B N S 3 at p. 55) Willes, J. observed- "They belonged to that superior class to which credit is given by other Courts for acting within their jurisdiction, and to whose proccedings the presumption omnia rite esse acta applies equally as to those of the Supreme Court of parliment itself." The essence of the findings in these cases upon which is based the rule that a writ shall not be issued to a superior Court is that writs are issued for the purpose of correction of errors in the exercise of jurisdiction and since, as Willes, J, observed, superior Courts are entitled to credit from other Courts for acting within their jurisdiction the question of the issuance of a writ to them would not arise. It is, therefore, essential for applying this rule that the body which claims immunity from Writs should be a superior Court in the sense in which it is understood in the Common Law countries. The question would be whether the Election Commission is a superior Court and for the matter of that a Court at all; because if it is not a superior Court the mere fact that a Judge of a superior Court happens to be a member of it as a persona designata would not confer any immunity against the jurisdiction of a superior Court to issue writs of certiorari to it.

46. In England under the Patents Act, 1949, the Appeals Tribunal is to consist of one person only, a Judge of the High Court, and by subsection (10) an appeal to the Tribunal must not be deemed to be a proceeding in the High Court. In R. v. Patents Appeal Tribunal Ex parte Champion Paper and Fibre Company ((1957) All E R 227) a question was raised whether the Appeals Tribunal was subject to the certiorari jurisdiction of the Queens Bench Division because its only member was, under the law, a Judge of the High Court. Lord Goddard, Chief Justice, delivered the judgment of the Court and observed- "In the opinion of this Court it is clear that certiorari will lie to the tribunal if the tribunal exceeds its jurisdiction, and equally if the tribunal gives a decision which the Court conceives to be bad on the face of the decision. The tribunal is an inferior tribunal, it deals with a variety of matters under the Patents Act, 1949. In regard to at any rate two of them, where the effect of the tribunal's decision is the revocation of a patent, appeals from the tribunal lie direct to the Court of appeal. It would be certainly a strange tribunal if at one time it is exercising judicial functions so that there is a right of appeal to the Court of Appeal, and another time is not exercising judicial functions, although it may be that no right of appeal is given. An appeal is always a matter of statute. The decision of a tribunal which deals with particular matters stands unless a right of appeal is given by statute. In the present case no right of appeal is given by statute, but it is contended that there shall be a right to apply for an order of certiorari. I will not go into the question whether certiorari will not lie because, so it is said, that would be an infringement of royal prerogative, except to say that this is all now a matter of statute law and no question of infringement of the Queen's prerogative arises, because both the comptroller and the appeal tribunal are given certain duties to perform which they must perform in a judicial manner, and if they exceed their jurisdiction or give decisions which are bad on their face, it follows that certiorari must lie. Therefore, the Court has no hesitation in saying that an order of certiorari can be issued to this tribunal."

47. A similar objection was taken to the jurisdiction of the High Court in Regina v. Patents Appeal Tribunal Ex parte Baldwin and Francis Ltd: ((1959) 1 Q B 105) and Parker, L.J., with whom Jankins, L.J. and Pearce, L. J., the other two members of the Bench agreed, observed- "That an order of certiorari will lie, in a proper case, to quash a decision of that tribunal is, I think, clear. Though the tribunal consists of a Judge of the High Court, the Patents Act, 1949, specifically provides, by section 85 (10) that:- "an appeal to the Appeal Tribunal under this Act shall not be deemed to be a proceeding in the High Court." Accordingly the decision of the tribunal is a decision of an inferior tribunal of a kind to which an order of certiorari will issue: and indeed that was decided by the Divisional Court in Reg. v. Patents Appeal Tribunal Ex parte Champion Paper and Fibre Co."

48. In Australia prohibition will issue to a statutory tribunal limited jurisdiction even if it is designated as a superior Court of record (Attorney-General v. Wilkinson re: The Industrial Court (1958 Argus L R 465).

49. We have a written Constitution which also governs the establishment of Courts. Its Article 129(1) provides that- "There shall in addition to the Supreme Court and the High Courts, be such other Courts as are established by law."

50. Therefore, to be a Court it must be shown that a particular tribunal has been created as a Court by law under Article 129 of the Constitution or that it was in existence before the Constitution Day and therefore continues to perform its function under the authority of this Constitution. It has not been contended before us, and we may say that it could not have been contended, that the Election Commission or the Commission have been established as Courts by law under Article 129 of the Constitution. Since it is not a Court the question of its being a superior Court and therefore under the English tradition immune from a writ does not arise.

51. The second fact of this question is covered by Article 98 of the Constitution itself. Under sub-Article 2(a)(i)(ii) the High Court has jurisdiction to issue orders to a person performing in the Province functions in connection with the affairs of the Centre, the Province or a local authority. Sub-Article 5 defines the meaning of `person' as used in Article 98 and runs in the following words: "In this Article, unless the context otherwise require- "person" includes any body politic or corporate, any authority of or under the control of the Central Government or of a Provincial Government and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Defence Service of Pakistan:" We have already seen that it is not a Court and in any case it is neither a Supreme Court nor the High Court. It is equally clear that it is not a Court or Tribunal established under a law relating to the Defence Services of Pakistan. Even if, therefore, it were a Court it is not excluded from the Jurisdiction of this Court under Article 98 because the only Courts and tribunals that are so excluded are the Supreme Court and those which have been established under a law relating to Defence Service of Pakistan. It is nobody's case that the Election Commission is such a Court or Tribunal. It is, therefore, subject to the control of the High Court under, Article 98 and is amenable to an order passed by it under the said Article.

52. The Election Commission or the Commissioner is, there fore, not immune from the special original jurisdiction of this Court whether it is looked at from the point of view of the certiorari jurisdiction of the English Courts or of the Jurisdiction exercised by this Court under Article 98 of the Constitution.

53. We have already held that there is, no other adequate remedy available to the petitioner wherefore the jurisdiction of this Court under Article 98 will be attracted.

54. We now come to the question as to whether the learned Member, Election Commission, acted in excess of lawful authority in refusing to reject the ballot papers which contained currency and the chits on which "Bismillah Arrahman Nirrahim" was written. We have already seen that under section 52 the present dispute is a matter excluded from the jurisdiction of the tribunal and falls to be determined by the Member, Election Commission, and if we come to the conclusion that be has refused to determine it we cannot but hold that he acted without lawful authority in doing so because he declined to exercise authority vested in him by law.

55. If a law requires an authority to perform a particular function, as in this case, section 53 of the National and Provincial Assemblies (Elections) Act, 1964 requires the Election Commissioner whose powers had been delegated to the Member, Election Commission, to hear and dispose of appeals regarding count of votes at an election and in doing so to reject such ballot papers as are held by him to be invalid under the law then such person does not have the authority to decline to do so and if he does decline then he is 'acting without lawful authority. The word lawful authority is used in Article 98 because it is a word wider in significance than the word `jurisdiction'. The latter is normally applicable to Courts while the former is used in the context of other persons and bodies also, and since Article 98 is applicable not only to Courts but to other bodies, it was necessary to use a word of wider import. One could with advantage advert to the provisions of section 115 of the Civil Procedure Code which proceed thus- "The High Court may call for the record of any case which has been decided by 'any Court subordinate to such High Court and in which no appeal lies thereto and if such subordinate Court appears- (a) to have exercised a jurisdiction not vested in it, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit."

56. There are a number of authorities explaining the scope of section 115 and one may advert to the last of them delivered by the Privy Council in Joy Chand v. Kama Laksha (A I R 1949 P C 239 at p. 242): "There have been a very large number of the decisions of Indian High Courts on section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated -that although error in a decision of a Subordinate Courts does not by itself involve that the Subordinate Court has acted illegally or with material irregularity so as to justify inter ference in revision under subsection (c), nevertheless, if the erroneous decision results in the subordinate Court exercising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for revision arises under sub section (a) or subsection (b) and subsection (c) can be ignored. The cases of Babu Ram v. Munna Lal A I R 1927 All. 358 and Hari Bikaji v. Naro Vishwanaih 9 Bom. 432 may be mentioned as cases in which a subordinate Court by its own erroneous decision (erroneous that is in the view of the High Court), in one case on a point of limitation and in the other on a question of res judicata, invested itself with a jurisdiction which in law it did not possess, and the High Court held, wrongly their Lordships think, that it had no power to interfere in revision to prevent such a result. In the present case their Lordships are of opinion that the High Court, upon the view which it took that the loan was not a commercial loan, had power to interfere in revision under subsection (b) of section 115." The mere fact, therefore, that on a point of law a Court comes to a conclusion with which the High Court is not in agreement will not entitle the latter to interfere in the exercise of its revisional jurisdiction to decide it follows that it has the jurisdiction to decide rightly or wrongly. But this is not the end of the matter, and if such a wrong interpretation placed upon a law by a lower Court results in the refusal of that Court to exercise jurisdiction vested in it by law or the exercise of jurisdiction not vested in it by law the High Court has the power to interfere and not only correct the decision of the lower Court on the point of law but to direct it to proceed with the disposal of the case in accordance with such decision. The exercise of jurisdiction by the High Court under Article 98 is on no different footing. Although an appeal or revision would not lie from an order of such a tribunal to the High Court but if it could be shown that by coming to an incorrect decision on a point of law the tribunal has refused to exercise a jurisdiction vested in it; the High Court has the power to interfere under Article 98 in the same manner that it would have the jurisdiction under section 115 of the Civil Procedure Code in relation to the Courts subordinate to it.

57. Learned counsel for the respondents placed reliance on the judgment of Kaikaus, J. in Badarul Haq Khan v, Election Tribunal, Dacca (P L D 1963 S C 704) in support of their contention that the mere fact that an order passed by a tribunal is based on a misinter pretation of law or on an interpretation which is not acceptable to the High Court will not give jurisdiction to the High Court to interfere under article 98 as it would not be an order without lawful authority simply on the ground that there is a disagreement between the tribunal and the High Court on the interpretation of law. The case before us falls into an entirely different class.

58. Mr. Justice Kaikaus at page 735 observed as follows:- "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 order without lawful authority unless it appears that the inadmissible evidence affected the ultimate order." In the present case the learned Member of the Commission was' charged under the law with the duty of determining the result of the election on the count of valid votes as corrected and such consequential orders as may be necessary. This was the duty which had to be performed by the learned Member himself and no other authority had the power to perform this duty if he did not do so. The learned Member of the Commission observed at page 22 of his order:- "By the fact that the appeal is accepted, the respondent cannot be debarred from his remedy which may otherwise be available to him before the Election Tribunal. The question which he is to argue is that the Presiding Officer should not have separated the currency notes from the ballot papers and that be should have rejected them. The other question which he raises is that there was an arrangement between the candidate and the electors by which the electors can be identified. These questions are beyond the scope of section 53 and an election petition therefore is not incompetent. Another point to be. noticed is that a question which can be raised under section 53 is only in respect of a proceeding under section 38 which section deals only with the proceedings before a Returning Officer. Section 53 does not apply to the proceedings which are before the Presiding Officer."

59. On these assumptions the learned member of the Commission declined to determine- (a) The question whether the enfolding of currency and chits inscribed with "Bismillah Arrahman Nirrahim" invalidates the ballot papers as they were marks by which the electors can be identified, (b) the question whether these marks were placed in pursuance of a pre-arrangement to divulge the identity of the electors, (c) the question whether in the circumstances of this case it was at all necessary to prove a pre-arrangement, (d) to reject ballot papers which bore such marks and to exclude the same from the votes cast in favour of Mian Jamal Shah.

60. In these circumstances, it cannot be said that it was z merely a wrong interpretation of law since it also resulted in refusal to exercise jurisdiction vested by law.

61. The learned member of the Commission also remarked- "The existence of a mark in the absence of a proof of arrangement does not identify a voter." With all respect we must say that this is not what was laid down in Woodward v. Sarsons a case which came up for interpretation in the other leading case on the subject, The Borough of Exeter Henry Edward Duke v. Richard Harlod St. Maur (6 O'M & H 228 (1911)). In the Exeter case Mr. Justice Channel observed as follows:- "It is obvious, to begin with, that the mistakes that illiterate and unskilled persons may make in filling up their ballot papers are almost infinite, but it is equally true that the devices that fraudulent people may arrange between themselves for identification are also infinite; and it seems to me that what you have to do when you have got ballot papers of the kind such as we have been considering, some for the purpose of seeing for whom they voted, and some for the purpose of seeing whether there are marks of identification on them it seems to me that what you have got to do is to look at the paper and to form your own opinion upon looking at it whether what is there is put there by the voter for the purpose of indicating for whom he votes. Then if he has not done it in the proper way, if he has 'put something which is not exactly a cross, if he has put two crosses, or if he has done anything of that sort-it is perfectly true those marks might be a matter of arrangement between some person who has induced him for some reason or other to give his vote in that particular way, and promised him something if he satisfies the person promising that he has so voted; it is perfectly possible that two crosses, or anything of that sort, may be used as devices for that purpose. It is possible; but if you come to the conclusion on looking at the paper that the real thing that the man has been doing is to try badly and mistakenly, not understanding the Act of Parliament to try to give his vote and to make it clear whom he votes for, if you come to the conclusion that that is what it is, then those marks are not to be considered to be marks of identification unless you have positive evidence of some agreement to show that it was so. If you had a positive agreement that there was a person going about and bribing voters and saying, "Now, you, shall have so much for your vote, but to satisfy me you must not only vote for that particular candidate, but you must put two crosses to make it clear," and if such an agreement as that was proved, then the two crosses would become a matter of identification. But that is a thing which you do not get. That sort of thing may take place, but the one place where it is difficult to prove it is in the Election Court, and you do not know of such things. I think that that must be what the Judges were referring to in speaking of evidence of an agreement which would make a particular mark an identi fication, because it had been so arranged. But I think that the statute makes void all ballot papers which have on them marks other than those which indicate the intention to vote for a particular person, and which may be indications of the identity of the voter. And it seems to me that when you find a ballot paper which has got something clearly going beyond the intention to indicate for whom he votes, then you must hold that 'to be bad. You may say, according to that rule, "Up, Duke!" is merely a written intention to vote for that person, but it goes beyond that, and it seems to" me that if one wants authority, the case of Woodward v. Sarsons where the name of `Sarsons' was written, is a case distinctly in point. I think that that goes beyond the mere case where the Judges thought something or another upon a particular paper; I think there they laid down the principle by which we ought to be bound. Therefore, although one does it always with some regret, because it is very likely indeed in fact, more likely than not that he was a too enthusiastic supporter of Mr. Duke, I think he has managed by his enthusiasm to spoil. his vote."

62. Now no body can say that the enfolding of one-rupee currency notes, or the half portion of a five-rupee currency note, or a pice, or identical chits with `Bismillah Arrahman Nirrahim' inscribed on them in identical handwriting with number placed beneath the 'bey' of `Bismillah' instead of the usual dot was the result of mistakes committed by "illiterate and unskilled persons" and not a device "that fraudulent people may arrange between themselves for identification," and it went clearly, "beyond the intention to indicate for whom," he voted.

63. The English Law on the subject may be summed up thus- Marks on ballot papers may broadly be divided into two categories, (a) those that are accidental. They are to be ignored as having no bearing on validity unless the marks on the face of them are sufficient for identification, (b) those that are deliberate. Marks falling under (b) may be further sub-divided into (c) those which go beyond the expression of the intention to indicate choice of the elector; ballot papers containing such marks are per se invalid on the presumption that identity of the elector can be disclosed by them and no proof of a pre-arrangement is necessary in their case, (d) those which do not go beyond the said intention. Marks falling in clause (d) can either be (e) other than prescribed marks or (f) prescribed marks. In the latter case they are valid. In the former, that is, other than prescribed marks, they may have been put either (g) due to a pre-arrangement or design to disclose identity and the ballot papers on which they are made would on proof of the pre-arrangement being furnished be declared invalid. In Pakistan the law insists on expression of choice by placing the prescribed mark and ballot-papers falling in category (g) will in any case be invalid in this country. But if (h) the choice has been expressed by other than prescribed marks due to lack of knowledge or skill the ballot paper would, be valid in England but shall, on account of the amendment made in section 38 (2) (c) by section 4 of Ordinance I of 1965, be invalid in Pakistan.

64. This was not a case, therefore, where any evidence of pre-arrangement was called for and we respectfully disagree with the learned Member's observation- "It is thus clear that unless there is something to show the previous arrangement, the mere presence of mark for the matter of that the currency-note on a ballot paper is not sufficient to identify the electors." But even if it was necessary so to do it was only the Member, Election Commission, who has the power to do it and not the Election Tribunal because it is for the former to determine whether a ballot paper bears any mark by which the elector can be identified.

65. It may here be mentioned that the learned Member himself observed in a similar strain in a slightly different context when dealing with a ballot paper which was shown by the elector to another member of the College and was therefore excluded by the Presiding Officer that- "The Presiding Officer, being the Judge of the circumstances at the spot, can consider for himself whether the disclosure by the voter is intentional or in ignorance of law and procedure. If he is of the opinion that the voter acted only in ignorance of law, he can take the ballot paper from him and cancel it. It will be a spoiled paper; if in his opinion the voter has acted inadvertently the Presiding Officer can issue a fresh ballot paper to him with an instruction to go and mark it secretly. On the contrary, if the elector has acted with an intention to show the ballot paper, he by spoiling his ballot paper, would become disenfranchised."

66. The learned member rightly upheld the action of the Returning Officer in taking note of tote endorsement made by the Presiding Officer on the ballot paper which had, after making, been shown to another member of the Electoral College. We must say that on the same reasoning the note made by the Presiding Officer about the recovery from ballot papers of currency and chits with Bismillah Arrahman Nirrahim written on them, should have been taken into consideration even if the relevant ballot papers had not been placed in a separate packet meant for excluded ballot paper. It has to be borne in mind that the mere fact that the objectionable ballot paper were not separately packed by the Presiding Officer does not alter the situation at all because in the National Assembly Elections neither the ballot papers nor their counterfoils bore any serial number and the electors could in any case not be traced or identified with the help of those ballot papers as the marks by which the elector can be identified were not inscribed upon them but were enfolded in them, The marks having been kept intact the identity of the elector can be established by them (Exeter case) and since the number of ballot papers in which they were enfolded was mentioned by the Presiding Officer in his note the rejection of as many votes would have been a complete compliance with the law. On the question whether the articles enfolded in the ballot-papers could be called `marks' we would only like to refer to the Shorter Oxford Dictionary, Vol. I, page 1207 where `mark' has been defined as; "A sign, indication.

1. A sign, token, symptom . . . . .

2. A sign affixed or impressed for distinction a. A device, stamp, seal, lable, brand, inscription, written character, or the like indicating ownership, quality, etc." Considered in the light of the meaning given to it and quoted above it is very difficult to say that the things enfolded in the ballot papers were not marks.

67. Two of the ballot papers bore only the official mark but the initials of the Presiding Officer did not appear upon them. The Returning Officer rejected both of them but the learned Member came to the conclusion that- "If the ballot papers did not contain the initials of the Presiding Officer, it is due to an omission on his part or a hurry or inadvertance. To reject a ballot paper in such circumstances, is to disenfranchise a person for no fault of his . . . . . The word 'or' in sub-clause (a) in the context means `and'

The two ballot papers which bore the official seal but not the initials could not thus be rejected." Maxwell in his book on the Interpretation of Statutes, Eleventh Edition, observes at page 229 that-- "to carry out the intention of the Legislature, it is occasionally found necessary to read the conjunctions 'or' and 'and' one fork the other". Section 32 (2) (b) provides that- "the ballot paper shall, dh its back, be stamped with the official mark and initialled by the Presiding Officer." The use of the word 'shall' shows that the provisions of this subsection are mandatory in nature and not merely directory. The result of non-compliance with this is contained in section 36 (b) (i) which requires the Presiding Officer to exclude from the count the ballot papers which bear- "no Official mark or initials of the Presiding Officer." and Maxwell says that- "it is an elementary rule that construction is to be made of all the parts together, and not of one part only by itself." If we read sections 32 (2) (b) and 36 (b) (i) together the only conclusion that can be reached is that the intention of the Legislature was to strictly enforce section 32 (2) (b) and a ballot paper which does not bear both the marks shall stand excluded. The ballot paper which did not bear the initials of the Presiding Officer could, therefore, not have been accepted as valid. The points raised before us in this case related only to- (a) treating as valid those ballot papers, cast in favour of respondent No. 3, which did not bear the initials of the Presiding Officer, (b) treating as valid, the ballot papers, cast in favour of respondent No. 3, which had chits bearing the words "Bismillah Arrahman Nirrahim" enfolded within them, (c) treating as valid, the ballot papers, cast in favour of respondent No. 3, which had currency enfolded in them, and our order in this case covers the order of the learned Member of the Commission only to the extent to which the latter deals with the ballot papers mentioned in this paragraph.

68. We disposed of the Writ Petition by our order dated 26th May 1965 and the foregoing are our reasons in support of that order.

69. We certify under Article 58 (a) that this case involves substantial questions of law as to the interpretation of the Constitution. A. H. Order accordingly.