P L D 1957 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑

The judgment of the Court, with my full concurrence, is being delivered by Cornelius, J., and I am adding these few pages only because I cannot refrain from giving expression to any uneasy thought which has been crossing my mind throughout the hearing of this appeal. As to this Court's power to interfere with the Report of the Tribunal, despite the desperate and at times obviously impossible arguments of the learned Attorney‑General on behalf of the Central Government, Mr. Nazir Ahmad Khan, learned counsel for the intervener, namely, the Government of West Pakistan, and Mr. Mahmud, Assistant Advocate General, learned counsel for the Tribunal, no doubt has arisen in my mind even for a moment. As I read the provisions of the Constitution concerning the exercise of judicial power of the State, the principle underlying them seems to me to be that all exercise of such power, except by Military tribunals, is liable to correction by this Court. This principle is stated in Article 160 by providing that "the Supreme Court may grant special leave to appeal from any judgment, decree, order or sentence of any Court or tribunal in Pakistan, other than a Court or tribunal constituted by or under any law relating to the Armed Forces". Therefore the sole question to be answered in order to determine whether this Court has or has not jurisdiction is whether the Report of the Tribunal is, a judgment within the meaning of this Article. Now under clause (1) of paragraph 7 of Part III of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, which applies to this case "if in the opinion of the Commissioners . . . . . . . the election of a returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt practice . . . . . . . . . or any corrupt practice specified in Part I of the First Schedule to this order has been committed in the interests of a returned candidate, the election of the returned candidate shall be void". And under clause (2) of the same paragraph the Commissioners in certain circumstances "may find that the election of the candidate is not void". Paragraph 8 requires the Commis sioners to "report whether the returned candidate, or any person who has lodged a petition and claimed a seat, has been duly elected . . . . . ." Under paragraph 10 where any charge is made in an election petition of any corrupt practice, the Commissioners shall record in their report "(a) a finding whether a corrupt practice has or has not been proved to have been committed by any candidate or his agent, or with the connivance of any candidate or his agent, and the nature of that corrupt practice; and (b) the names of all persons, if any, who have been proved at the inquiry to have been guilty of any corrupt practice . . . . . ." Paragraph 1 of Part IV of the Order provides that "the offences and practices speci fied, in relation to certain elections, ‑in the Second Schedule to this Order shall, for the periods respectively specified in relation to those offences and practices in that Schedule, entail disqualification for membership of any Provincial Legislature." Similary paragraph 2 provides that "if any person . . . . . is after an inquiry under Part III of this Order reported as guilty of any such corrupt practice as is specified in Part I or Part II of the First Schedule to this Order, he shall, for a period of six years from the date of the report, be disqualified for voting at any election." The Second Schedule to the Order specifies the elections, the corrupt practices and the periods for the purposes of disquali fication under Part IV, and among the corrupt practices so specified are included undue influence and bribery. It appears to me to be perfectly clear from these provisions that the report of the Tribunal has, of its own force, the effect of declaring (1) an election void or not void (2) that a person has been duly elected, and (3) that a person from the date of the Report is disqualified to be a member of the Provincial legislature or a voter for that legislature because these results follow either from the expression of the Commissioners B opinion in the Report or from the date of the Report without any Order by the Governor. These legal consequences following from it, the Report is in every sense of the term a declaratory "judgment" because it finally determines the validity or invalidity of the election and the disqualification that a person may have incurred, and as such is, by special leave, appealable C to the Supreme Court under Article

160. Neither under clause (3) of paragraph 8 of Part III of the Order, nor under section 12 of the Establishment of West Pakistan Act, 1955, nor under sub‑clause (c) of clause (5) of Article 225 of the Constitution is the Governor competent to deprive the Report of this legal effect, his duty under each of the provisions) just mentioned being to pass orders in accordance with or in order to give effect to the Report. If it be assumed that the Governor in passing orders on the Report has some discretion " and thus exercises judicial functions, he himself becomes a D judicial tribunal and his orders become appealable to the Supreme Court under Article 160, even though such orders be passed on the result of an investigation conducted by the Election Petitions Tribunal. Beyond the definition of "judicial proceeding" in section 4 (m) of the Code of Criminal Procedure, which only applies to pro ceedings under that Code, no statutory definition of that expression or of "judicial functions" is to be found in Pakistan law. An inquiry is judicial if the object of it is to determine a jural relation between one person and another or a group of persons or between him and the State representing the community. Generally speaking a person performs judicial functions if he is enjoined by the law to adjudicate upon and determine, as between the parties, some controversy relating to the existence or non‑existence of a right or liability, N whether such right or liability be the creation of common law or statute, provided the right or liability is actionable either under the general law or special law, and the duty to determine the controversy is derived from the State and rests on the ascertainment, with notice and opportunity to parties, of the facts and the law applicable to them and not on policy, expediency or some other extraneous consideration. If, therefore, the law invests the Governor, which in my opinion it does not, with discretionary powers attributed to him by the learned Attorney‑General and learned counsel for the respondents, I should feel no difficulty in holding that the Election Petitions Tribunal and the Governor together constitute a tribunal for the purposes of Article 160 of the Constitution. The argument for the finality of the Tribunal's findings and the Governor's orders, in so far as it rests on section 12 of the Establishment of West Pakistan Act which, contrary to the view of the Central Government expressed in the Removal of Difficulties (Election Tribunal and Election Petitions) Order, 1956, is according to the learned Attorney General still in force, is without any substance inasmuch as after the passing of that Act the Constitution invested the Supreme Court with the jurisdiction to entertain, by special leave, appeals from the judgments of all tribunals except military tribunals, and thus the finality, if any, attaching to the Governor's orders was taken away by the Constitution P Act itself. And if the Removal of Difficulties Order inserting clause (5) to Article 225 of the Constitution, which makes the Governor's orders final, is relied on as ousting the Supreme Court's jurisdiction, the question at once arises whether that is the true effect of that Order. It is admitted by the learned counsel for the respondents that the President in promulgat ing that Order merely reproduced some clauses of section 12 of the Establishment of West Pakistan Act which, according to the advice given to him, had been repealed by the Con stitution and that he was not at all conscious of the legal position that by Article 160 the Constitution‑makers had conferred on the Supreme Court the jurisdiction to entertain, by special leave, appeals from all tribunals including the Election Petitions Tribunals. Can it be seriously contended that the President unconsciously took away the jurisdiction of this Court ? Can the contention be considered for a moment that the jurisdiction of a Court like the Supreme Court can be taken away without there being an intention to take it away ? And can such intention in fact be formed when the very existence of such jurisdiction was unknown to the President who is alleged to have taken it away ? But assuming for the sake of argument that the President intended to deprive the Supreme Court of a jurisdiction which had been conferred on it by the Constitution the Order can be sustained only on the ground that the President thought that the existence of the Supreme Court's jurisdiction over Election Tribunals had created or would create some difficulty in the working of the Constitution‑a suggestion which is preposterous and amounts to a serious reflection on the wisdom of the Constitution‑makers and the bona fides of the President. No such difficulty has been suggested by any one nor is any such difficulty conceivable. If therefore we had been called upon to decide whether the Removal of Difficulties Order was constitutional, however, reluctant to scrutinize the grounds for an Order by the President under Article 234 we may be, I would in the present case have been compelled to hold that if the intention underlying that Order was to deprive this Court of the jurisdiction conferred on it by the Constitution, the Order was ultra vires. But, as I have said above, the Order carried no such intent and Mr. Mahmud was right in conceding that if the President was not aware that the Supreme Court had jurisdiction under Article 160 to interfere with the Reports of Election Tribunals, the afore said Order has not taken away that jurisdiction if it existed before that Order. Article 146 of the Constitution on which reliance was placed by the learned Attorney‑General in a vigorous endeavour to establish the ouster of this Court's jurisdiction, has nothing to do with the matter. That Article provides that no election to the National Assembly or a Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by Act of Parliament. The corresponding provision in the Indian Constitution has been construed by the Supreme Court of India as having no bearing on the question of the Supreme Court's jurisdiction to interfere on appeal, by special. G leave, with the order of an election tribunal, and that undoubtedly is the true, construction of Article 160 of our Constitution which is worded exactly as the Indian Article. The Report of the Tribunal being a judgment, in entertaining an appeal from that judgment we are not functioning otherwise than as an appellate authority in the proceedings taken on the election petition; nor is the validity of the election being called in question otherwise than by an election petition. Coming to the question whether we should interfere with the Tribunal's Report, I may state at the very outset that the supervisory jurisdiction of the Supreme Court under Article 160 is a restricted jurisdiction and an appeal to invoke it will not succeed where a special tribunal, like the Election Petitions Tribunal, has functioned within the spirit and the intention of the statute that created it and while so function ing has made a real and honest endeavour to judge facts on the merits of the evidence and to apply the law to them. A finding of fact thus arrived at, however erroneous, will not be scrutinized or reviewed by this Court, and even if an error of law be committed by the Tribunal that will not be considered to be a sufficient ground for interference unless the law so misunderstood or misapplied raises some general question of fundamental importance to the proper functioning of the tribunal or the decision of the case. But if the Tribunal has made no honest effort to arrive at a correct conclusion or has come to a decision which no reasonable body could ever have come to or has, on no evidence, recorded findings which have deprived persons of important constitu tional rights the exercise of which is the very basis on which the whole constitutional fabric rests, this Court will be acting in betrayal of the Constitution if on any such case being made out it did not interfere with the verdict of the Tribunal. The law relating to the trial of elections petition, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices ; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner ; that the evidence in proof of such practices O must be restricted to the charges or instances mentioned in the petition and the particulars ; that each ingredient of a corrupt practice so charged must be affirmatively proved by evidence, direct or circumstantial ; and that where the evidence is wholly circumstantial, the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed. In the present case each and every one of these basic principles has been violated and as result of the trial held in contravention of these principles six returned candidates have been unseated. A clear case for the interposition of this Court therefore exists. As alleged in the petition and in the particulars the elec tion was sought to be avoided on the following grounds :‑‑ (1) that on 13th January after the scrutiny of nomination papers at Jhang, Ghulam Haider and Nawazish Ali Khan, two of the nine voters, were decoyed and were taken to village Radhon where they were promised by Muhammad Saeed Shaikh in the presence of Sher Muhammad Barwana and Maulvi Muhammad Zakir that if they voted for these three persons and Muhammad Mohsinlali, one of the posts of Parliamentary Secretaries could be offered to Ghulam Haider but that if they did not so vote they would be victimised and put to trouble ; (2) that from 14th to 18th January, Ghulam Haidar and Nawazish Ali Khan were deprived of freedom of movement and association and taken by Muhammad Saeed Shaikh, Maulvi Muhammad Zakir and Sher Muhammad Barwana to various places including Landikotal, Peshawar and the Tribal Area where inducements and threats were held out to them till in the seclusion of the Tribal Area these two persons, under coercion and threats, were made to promise on the Kalima that they would vote as desired ; (3) that Khan Qurban Ali Khan, Minister for Tribal Affairs, helped and assisted Muhammad Saeed Shaikh, Maulvi Muhammad Zakir and Sher Muhammad Barwana in exercising undue influence and coercion on Ghulam Haider and Nawazish Ali Khan ; and (4) that Sher Muhammad Barwana provided sumptuous feasts to Ghulam Haider and Nawazish Ali Khan, bore the entire expenses of their journey, including expenses of the police escort from Lyallpur to Jhang, and gave them some presents in order to humour them and to keep them to their promise made on the Kalima. The Tribunal have found that the allegation that Khan Qurban Ali Khan helped and assisted Muhammad Saeed Shaikh Maulvi Muhammad Zakir and Sher Muhammad Barwana in exercising undue influence on Ghulam Haider and Nawazish Ali is false because it is proved that on the date on which he is alleged to have so helped and assisted at Peshawar, Khan Qurban Ali Khan was not at all at Peshawar but at the Government House, Lahore. As regards the allegation that Ghulam Haidar and Nawazish Ali were deprived of freedom of movement and association from 14th to 18th January and that at some place in the tribal territory they were made to promise them support to Muhammad Saeed Shaikh, Maulvi Muhammad Zakir and Sher Muhammad Barwana on the Kalima, it is admitted by Mr. Nazir Ahmad Khan and Mr. Mahmud that there is no evidence whatsoever that these two persons were deprived of freedom of movement and association or that they were made to swear their support on the Kalima. Both these learned counsel further admit that there is no evidence on the record that Sher Muhammad Baiwana bore the expenses of any sumptuous feasts or of the journey of Ghulam Haidar and Nawazish Ali Khan from 13th to 18th. As regards the presents, namely, a pair of Talagang shoes to each of them and a chugha to Nawazish Ali Khan, assuming that these presents were made by Sher Muhammad Barwana, there is no evidence that they were made with the object directly or indirectly of inducing these two voters, of whom one owns 287 and the other between 80 and 85 squares of land, to vote in a particular way. In fact the allegation that they were so made is contradicted by the Tribunal's own finding that mutual support by these six persons bad been promised on the holy Quran about a week before the 13th January and by the evidence relied on by the Tribunal of Lt: Colonel Sultan Mubariz Khan that Ghulam Haidar and Nawazish Ali Khan offered to Sher Muhammad Barwana Rs. 200, the price of the alleged costly gifts, but that he refused to take the money saying that the presents were between friends. The case as to these presents was so rediculous that Mr. Nazir Ahmed Khan had to admit that he was unable to support the Tribunal's view of this transaction. Learned counsel further expressed his inability, subject to Mr. Mahmud's right to maintain to the contrary, to support the Tribunal's conclusion that the payment by Sher Muhammad Barwana of the expenses of the police escort from Lyallpur to Jhang con stituted a corrupt practice. And of what is alleged to have happened at village Radhan the evidence was that of a statement alleged to have been made by Ghulam Haidar to Mehr Karim Bakhsh, a partisan of Mehr Muhammad Arif petitioner, but Ghulam Haidar was not confronted with it. The other witness who said something about the incident was Muhammad Nawaz Khan but his evidence was, on the face of it, unacceptable inasmuch as there could be no occasion for Muhammad Saeed Shaikh to ask these two persons to join his group, the alignment of the group, even according to the findings of the Tribunal, having been determined several days before the 13th of January. The third witness's statement was completely irrelevant. It will, therefore, appear that the Tribunal made no real endeavour to judge this evidence or to consider the legal question whether if accepted it amounted in law to proof of bribery or undue influence. Thus the result has been that either on no evidence or on evidence so scanty that no judicial tribunal anxious to do justice according to law between party and party would have accepted it, six persons have been unseated, disqualified for membership and deprived of the right to vote for six years, and serious aspersions have been cast on and clear innuendos freely flung at two' Ministers, a High Court Judge, the Inspector‑General of Police, a Deputy Commissioner, a Superintendent of Police and three Magistrates, and this is not all. One of the alleged corrupt practices on the basis of which the election has been declared to be invalid and the appellants and Ghulam Haidar disqualified was not even mentioned in the petition or the particulars nor was it ever put in issue, and the form, time and place of this corrupt practice were entirely different from those of the corrupt practice alleged in the petition and the particulars, and as to which a 'specific issue had been framed. How the Tribunal could treat as solitary reference in the evidence to an unpleaded corrupt practice as the basis of their Report is beyond comprehension and the procedure adopted is opposed to the basic principle firmly established, both in England and here, that the petitioner is not at the trial entitled to add fresh charges of corrupt practices. Here what the petitioner could not ask to be done has been done for him by the Tribunal. This being the state of the record, I have, during the nine days that we have been at this case, frequently asked myself the question : why did the Tribunal, consisting of a High Court Judge and two members who were or had been at the time of their appointment District Judges, deviate in every material respect from the law governing the trial of election petitions, which I have stated in a single sentence, but have not been able to discover a satisfactory reply. SHAHABUDDIN, J.‑

I agree entirely with the conclusions expressed by my learned brother Cornelius in the judgment of the Court and the reasons on which those conclusions are based. The Tribunal approached their task as if it was their duty to conduct an inquisition into the election in question with special reference to any irregularities appearing in relation to the conduct of the returned candidates. This is apparent from their conscious departure from the principles and procedure of judicial trials, which by Statute and long‑standing practice, are applicable to the determination of election disputes. But it must have been clear to them from the provisions of law under which they were appointed and exercised jurisdiction that they were required to conduct a judicial investigation and not an inquisition. It is regrettable that a Tribunal of persons possessing high judicial experience should, by failure to follow the correct principles, have committed the serious errors which have been found to vitiate their findings on points of fact and by reason of which their decision cannot be allowed to stand. CORNELIUS, J.‑

This appeal is directed against the report of the West Pakistan Election Petitions Tribunal upon an election petition preferred by one Mehr Muhammad Arif Khan, challenging the election to the West Pakistan Interim Legislature of six persons, namely, Sher Muhammad Bharwana, Ghulam Haider, Maulvi Muhammad Zakir, Muhammad Saeed Sheikh, Muhammad Mohsin Lali alias Massan and Nawazish Ali Khan. The election took place on the 19th January 1956, at Jhang. The petition challenging the election was filed on the 23rd February 1956, and was entrusted to the aforesaid Tribunal by an order of the West Pakistan Governor published on the 17th March 1956. The Tribunal tried the petition in the manner of a suit under the Code of Civil Procedure, 1908 as required by rule 12 in Chapter 2 of Part E of the Punjab Legislative Assembly Electoral Rules. After the pleadings of the parties had been brought on the record in full, the Tribunal struck seven issues on the 15th May 1956. Recording of evidence commenced on the 11th June 1956, and the Tribunal examined altogether 22 witnesses for the petitioner and 18 witnesses for the respondents. We note that, although all the parties and a large proportion of the witnesses belonged to Jhang, which also, as the seat of the constituency, was the principal place of interest in the case, the Tribunal did not examine a single witness at Jhang. All the evidence, much of it by witnesses who reside in Jhang district was recorded at places as far removed from Jhang as Peshawar, Abbottabad, Murree and P Lahore. We think it desirable to make particular mention of this feature of the enquiry, for the reason that in certain circumstances, the requirement that parties to such petitions should produce their witnesses at distant places may easily operate as an obstruction in the way of a full and proper investigation of the charges upon which the petition is based. The capacity of the parties to sustain the expense involved is by no means either the only or the most important consideration governing the principle to be followed in such cases. As was the election, so is the election petition, a matter of interest primarily to the constituency where the election was held. It is needless to emphasise the importance of not placing any difficulties beyond the inevitable minimum in the way of persons appearing as witnesses at the enquiry. Such inconvenience is unquestionably greater in proportion to the distance which such persons are required to travel for the purpose of giving their votes. Finally, the rule to be followed must be one which applies equally to all parties concerned in such petitions, as well those who are rich as those who are poor. The right involved is one which the Constitution awards to all citizens irrespective of their wealth or station, and it is essential that this feature of the exercise of the right should not be obscured or obliterated by the imposition of onerous conditions upon parties seeking to assert such rights before a statutory tribunal. Recording of the evidence having been concluded on the 22nd September 1956, at Abbottabad tic Tribunal signed its report on the 18th December 1956, and as required by paragraph 8 in Part B of the Government of India (Provincial Elections (Corrupt Practices and Election Petitions) Order, 1936, forwarded it to the Governor of West Pakistan. The Tribunal reported that the respondents were guilty of the corrupt practices of undue influence, bribery, and of paying for the conveyance of electors to the place of vote. These findings involved two consequences as provided by the Corrupt Practices Order, 1936. Paragraph 7 in Part III of that Order provides that "if in the opinion of the Commissioner . . any corrupt practice specified in Part I of the First Schedule of the Order leas been committed in the interests of the returned candidates . . . . the election of the returned candidates shall be void". The corrupt practices of undue influence and bribery are included in the First Schedule to the Corrupt Practices Order. Paragraph 7 also provides that "if in the opinion of the Commissioner . . . . the result of the election has been materially affected . . . . . by any non‑compliance with the provisions of . . . . any Act of the Provincial Legislature or rules relating to the election . . . . the election of the returned candidate shall be void". The payment of money on account of the conveyance of any elector to or from any place for the purpose of recording his vote has been made a "corrupt practice for the purposes of the Punjab Legislative Assembly Electoral Rules by rule 2 sub‑rule (1) in Chapter I of Part E of the said Rules". These Rules have themselves been made in the exercise of the power conferred by paragraph 20 in the Fifth Schedule to the Government of India Act, 1935 which enables the Governor of a Province, inter alia, to make rules for "securing the due constitution of the Provincial Legislature", and in particular with respect to "corrupt practices and other offences at or in connection with elections". The power is restricted only in so far as similar provision has not been made by certain specified instruments. A point which needs mention, however, is that the commission of a corrupt practice which is the creation of such a rule does not avoid the election, unless it is also ,held that the result of the election has been materially affected thereby. The Tribunal do not appear to have adverted to the provisions of para. 7 (I) (c) of the Corrupt Practices Order, 1936, which govern the case. The validity of the application of the Corrupt Practices Order, 1936 and the Punjab Legislative Assembly Electoral Rules in relation to elections held under the Establishment of West Pakistan Act, 1955, to the Interim Legislature of West Pakistan is established by section 12 of that Act, subsection (4) of which reads as under "For the purpose of investigation and decision of doubts and disputes the provisions of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, relating to Corrupt practices and the final Decision of Doubts and Disputes as to the validity of an Election, shall apply with such modifications as the context may require." It will be convenient at this place also to reproduce sub sections (5) and (6) of the same section which read as under :‑ "(5) The Tribunal shall report to the Governor on the question submitted to it and the Governor shall make such consequential order as to him seems necessary to give effect to the report, and any such order shall be final and shall not be questioned in any Court. (6) The validity of an election under section 11 of this Act shall not be questioned in any Court." The situation was altered in many material respects by the promulgation of the new Constitution on the 23rd March 1956, and it appears that serious doubts were entertained as to whether the Tribunal, which had already commenced enquiry into a number of election petitions arising out of the elections to the Interim Legislature of West Pakistan, could drive power for the discharge of its functions from section 12 of the Establishment of West Pakistan Act, 1955, in view of the provision in section 221 of the new Constitution that "the Government of India Act, 1935, and the Indian Independence Act, 1947 together with all enactments amending or supplementing those Acts, are hereby repealed." Accordingly an order was made by the President in the exercise of the power under clause (1) of Article 234 of the Constitution enabling him "for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, and the Indian Independence Act, 1947 together with Acts amending or supplementing those Acts, to the provisions of the Constitution" to direct by order "that the provisions of the Constitution shall during such period as may be specified in the order have effect subject to such modifications, additions or omissions as lie may deem necessary or expedient". This Order is IV of 1956 and purports to add a clause to Article 225 of the Constitution. The latter Article contained provisions of a temporary and transitional nature relating to the Provincial Legislatures. Clause (2) of this Article related in particular to the Interim Legislature of West Pakistan. The substance of the new clause (5) was relatable only to West Pakistan as will appear from the text reproduced below:

"(5) (a) Where a Tribunal has been appointed to investigate and decide doubts and disputes arising out of elections, to the Interim Provincial Legislature constituted under section 11 of the Establishment of West Pakistan Act, 1955, and functioning as Provincial Assembly under clause (2) of Article 225, such Tribunal shall have all the powers which are vested in a Civil Court under the Code of Civil Procedure, 1908, for the trial of a suit. (b) For the purpose of investigation and Decision of Doubts and Disputes the provisions of the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, and the provisions of Part E of the Punjab Legislative Assembly Electoral Rules, 1950, shall apply with such modifications as the context may require. (c) The Tribunal shall forward its report to the Governor and the Governor shall make such order as to him may seem necessary to give effect to the report, and any such order shall not be questioned in any Court." It will be clear from the foregoing that despite the con stitutional changes which had occurred, and the various instruments which had been enacted, the functions of the Tribunal continued to be regulated in all material respects by the Corrupt Practices Order, 1936, and by Part E of the Punjab Legislative Assembly Electoral Rules, 1950. A difference however appears in relation to the duty of the Governor upon receiving the report of the Tribunal. Under para. 8 (3) of Part Ill of the Corrupt Practices Order, the Governor is required on receipt of the report, in mandatory terms, to "issue orders in accordance with the report and publish the report in the Government Gazette of the Province." It is also provided in the same sub‑paragraph that "the orders of the Governor shall be final". The corresponding provisions in section 12 of the Establishment of West Pakistan Act, 1955 and in the President's Order 1V of 1956 are worded somewhat differently but the difference does not appear to be material. Here I may observe that the effect of subsection (6) in section 12 of the Establishment of West Pakistan Act, 1955, appears to be that the question of the validity of an election was placed entirely outside the purview of all Courts, and within the exclusive jurisdiction of the tribunal to which an election petition challenging the election might be referred by the Governor. No such provision is contained in the President's Order IV of 1956, which may be taken to indicate that the matter was felt to be one which under the provisions of the Constitution, was capable of being brought before the Courts. The bar to the jurisdiction of Courts which was retained by the President's Order, but only in relation to the election petitions already pending before the aforesaid Tribunal, was confined to that specified in sub clause (c) of the new clause (5) added to Article

225. On a plain reading of that text, it would appear that the Courts were prevented thereby from questioning any order made by the Governor "such as to him may seem necessary to give effect to the report." The expressions used do not altogether exclude the possibility of examination into the nature of the order and the degree to which it correctly implements the report, but it is not necessary for the purposes of this case to enlarge upon that aspect of the new sub‑clause (5). It is however of importance to observe that by the Constitution, the Supreme Court was invested by the terms of Article 160 with a new power of interference, with any "judgment, decree, order of sentence of any Court or Tribunal in Pakistan, other than a Court or Tribunal con stituted by or under any law relating to the Armed Forces". 1n the light of this provision, which is the provision under which the present appeal has been preferred to this Court, significance may well be thought to attach to the exclusion from the provision made by the President's Order IV of 1956 of the absolute bar to the jurisdiction of Courts which had been imposed by subsection (6) of section 12 of the Establishment of West Pakistan Act, 1955. The present case affords an opportunity of examining the terms of Article 160 of the new Constitution, and in particular of those effects produced by this provision which vary from the condition existing prior to the promulgation of the new Constitution. The terms of Article 160 are as follows:‑ "Notwithstanding anything in this Part, the Supreme Court may grant Special leave to appeal for any judgment, decree, order or sentence of any Court or tribunal in Pakistan, other than a Court or tribunal constituted by or under any law relating to the Armed Forces." The Article is expressed in terms of the widest appli cation, within the meaning of its particular terms, viz., "judgment, decree, order or sentence" and "Court or tribunal". It seems clear enough from the context that a tribunal falling within the Article must be a person or body, charged with functions which lead upon the conclusion of any matter before him or it to a final order falling‑ within the expression "judgment, decree, order or sentence". Clearly, reference is to a tribunal whose functions are mainly of a judicial nature, culminating in the making of a decision which when stated in formal terms, has operation, of its own force, in relating to the rights of parties. It is implicit, within the terms of the Article, that the J procedure of such a tribunal shall be of a judicial nature, namely upon a cause or a matter raised by one party, and after notice and opportunity of replying to the other party, to proceed by the method of receiving evidence and hearing arguments from both sides, to the decision of questions of fact and law arising in the case, and to make eventually a definitive and sell‑operative order, adjudicating upon to respective rights and liabilities of parties to the dispute. Such a tribunal, if it is not governed by the detailed pro cedural rules applicable to any Court, must of necessity, follow the basic principles of natural justice applicable to procedure and to the reception of evidence. Should the powers of the Tribunal be limited to the recording of opinions or recom mendations, which opinions or recommendations are in the nature of aid or advice or information to an executive authority, which has power to accept or reject the opinion or recommendation, it is clear that such an opinion by itself would not fall within the expression "judgment, decree, order or sentence" so as to attract the jurisdiction of the Supreme Court under Article

160. This conclusion is rested upon pure construction of the Article. It can be strongly supported by the practical consideration that the Article is not intended to procure for any executive authority aid or advice from the Supreme Court for the discharge of its own functions. This aspect of the matter may conveniently be stated in the language of a distinguished Judge, Mukherjea, J. of the Supreme Court of India, in the Bharat Bank case (1950 S C R 459) where the question was as to the susceptibility to appeal before the Supreme Court of India, of an award made by an industrial tribunal in relation to an industrial dispute. The learned Judge observed as follows: "Assuming again that the award is set aside and we substitute our own determination in place of the award given by the Tribunal, will our award be enforceable by itself or will it require a declaration by the Government to make it binding? If Government is itself a party to the dispute, will it be open to Government to place our decision for consideration by the Legislative Assembly? And will the Legislative Assembly be competent to reject or modify our award? These problems arise because under section 15 the award under the Act becomes binding only when the Government declares it to be so and if our judgment takes the place of the award of the Tribunal, all the infirmities that attach to the award must necessarily attach to our judgment also." A little later, it will be necessary for me to consider at some length the question whether a report by an election petitions tribunal, made in accordance with the Corrupt Practices Order, 1936 and the Punjab Legislative Assembly Electoral Rules, 1950, is a "judgment, decree, order or sentence", within the meaning of Article

160. At this point, I propose however to make certain observations regarding the state of the law in respect of such matters, prior to the promulgation of the present Constitution on the point of competency of an appeal. The Supreme Court of Pakistan is the successor to the Federal Court, and Article 227 provides, inter alia that the Supreme Court shall "have the same jurisdiction and powers as were, immediately before the Constitution Day, exercisable by the Federal Court". This was however "without prejudice to the other provisions of the Constitution". The Federal Court was declared by section 3 of the Privy Council (Abolition of Jurisdiction) Act, 1950 to have "the same jurisdiction to entertain and dispose of Pakistan appeals and petitions as His Majesty in Council has, whether by virtue of His Majesty's prerogative or other wise, immediately before the appointed day", (viz., the 1st May 1950). The Privy Council had declared on more than one occasion that it would refuse to grant special leave to appeal to His Majesty against the decisions of election tribunals. The first case of this kind was that of Theberge v. Laudry (2 A C 103). This was a case from the Canadian Province of Quebec and the petitioner had been unseated, after having been elected to the Legislative Assembly of the Province as a result of an election petition tried by the Superior Court of the Pro vince, which had found him to be guilty of corrupt practices. The Act relating to such petitions provided that, upon proof before the Superior Court that corrupt practices had been committed by or with the actual knowledge or consent of any candidate, the election should be void and the candidate should be disqualified from being or being chosen as a member of the Legislative Assembly. The judgment of the Judicial Com mittee was delivered by Lord Cairns and was to the effect that the jurisdiction exercised by the Superior Court of Quebec in the matter of election petitions was a novel jurisdiction which had been abstracted from that properly pertaining to the Legislative Assembly, and that such jurisdiction was alien to the prerogative of the Crown. At the conclusion of a lengthy discussion, Lord Cairns observed as follows: "In the opinion of their Lordships, adverting to these considerations, the 90th section which says that a judgment shall not be susceptible of appeal is an enactment which indicates clearly the intention of the legislature under this Act‑an Act which is assented to on the part of Crown, and to which the Crown therefore is a party‑to create this tribunal for the purpose of trying election petitions in a manner which should make its decision final to all purposes and should not annex to it the incident of its judgment being reviewed by the Crown under its prerogative." A second case of the same kind came before the Judicial Committee in 1930 from the Crown Colony of Malta. That was the case of Stickland v. Grima (1930 A C 285). The petitioners were two members of the Senate of Malta and had been unseated as the result of an election petition taken before the Court of Appeal in Malta. It is noteworthy that whereas in the Quebec case, the Judicial Committee rejected the petition for special leave to appeal, in the case from Malta, special leave had been granted and yet at the hearing, the Privy Council made it clear that this fact did not debar their Lordships from considering whether "His Majesty can be advised further to entertain the appeal" The conclusion reached in the case was the same as in the Quebec case, namely, that certain words in the Letters Patent of the Colony which directed that questions arising as to the right of a person to be or to remain a member of the Senate of Malta should be referred to and decided by the highest Court in Malta, viz., the Court of Appeal, served to indicate clearly that "His Majesty had advisedly designed his Court of Appeal in Malta finally to determine all these questions". In this judgment, the Judicial Committee expressed the opinion that questions relating to the membership of legislative bodies were not relatable to mere ordinary civil rights, and the jurisdiction conferred upon the Court of Appeal to deal with such questions was entirely novel. Where it is found that the Legislative Assembly had been in existence prior to the creation of such jurisdiction it was ordinarily found that the jurisdiction had previously been exercised by the Legislative Assembly itself, which had concurred in investing jurisdiction, thereafter in the Court. These cases have been cited with approval in a number of decisions of the late Federal Court, and in particular in the case of Hamidul Huq Chaudhry (1953 F C R 250; P L D 1953 F C 279). Consequently, had there not taken place on the 23rd March 1956, the changes in law brought about by the new Constitution, this Court would be exercising the same jurisdiction in relation to the present case as belonged to His Majesty in Council. Following the established precedents, this Court would have been driven to the conclusion that the words of finalty contained in the relevant instruments were intended to exclude the incident of an appeal to the Sovereign. That was the case even where the Tribunal to which enquiry into election petitions was entrusted was the highest Court of the territory, viz., in Quebec, the Superior Court and in Malta the Court of Appeal. Ordinarily, it might have been thought that an appeal from decisions of these two Courts would, subject in a proper case, to the grant of special leave, be competent before His Majesty. In the particular cases however the absence of such an appeal was found to be an incident arising out of the subject‑matter of the dispute. It will be clear that the language in Article 160 of the new Constitution has rendered all such considerations irrelevant for purposes of the exercise of the power vested in the Supreme Court to grant special leave to appeal. There are no references to any prior jurisdiction, and from the absence of such references, which were a feature of the instruments by which the jurisdiction of the Federal Court was delimited, the necessary inference must be that the power of the Supreme Court to grant special leave to appeal extends to every decision falling within the meaning of the expression "judgment, decree, order or sentence" given by any "Court or Tribunal" other than a Court or Tribunal constituted by or under any law relating to the Armed Forces. The jurisdiction of the Supreme Court in this respect does not appear to be governed by considerations of the subject‑matter, such as those which prevailed before the Judicial Committee in the two cases just mentioned. In another respect also, the position has been materially altered in law, in relation to proceedings before election tribunals, by virtue of the new Constitution. Article 170 of the Constitution gives power to the High Courts to issue writs of certiorari "for the enforcement of any of the rights conferred by Part lI (fundamental rights) and for any other purpose". In exercising this jurisdiction, the High Courts may be pre sumed, for the purposes of this judgment, to follow the principles of the English law and the practice of the Supreme Court in London. It is there settled that the High Prerogative writ of certiorari may be employed to correct errors of jurisdiction, as well as errors of law, and material irregularities committed not only by inferior judicial tribunals, but also such as might be committed by quasi‑judicial tribunals. A valuable discussion of the subject will be found in the judgment of Lord Justice Denning in the Court of Appeal in the case Rex v. Northumberland Compensation Appeal Tribunal ex‑parte Shaw ((1952) 1 KB 338). The learned Lord Justice cited an observation of Lord Sumner in the case Rex v. Nat Bell Liquors, Ltd. ((1922) 2 A C 128), to the following effect: "The supervision by certiorari goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise." Later in the judgment, the learned Lord Justice indicates a qualification in the application of certiorari for quashing decisions on the ground of error of law, namely that the error must appear on the face of the record. These being the powers of a High Court under Article 170 of the Constitution, if it be held that an Election Petitions Tribunal is either a judicial tribunal or a quasi judicial tribunal then, assuming that the other conditions requisite for the issue of a writ are present, the High Court may interfere to correct excesses of jurisdiction by such a tribunal, or a refusal to exercise jurisdiction, where such exists, or an error of law apparent on the face of the record, or any material irregularity in the exercise of jurisdiction. A valuable exposition of the law on this subject will be found in the judgment of Bhagwati, J., now a Judge of the Supreme Court of India, delivered in the Bombay High Court in the case Shripad v. Divatia and others (A I R 1948 Bom. 20). It will thus be clear that the exclusion of proceedings before an Election Tribunal from the control of superior Courts is now a thing of the past, provided of course that such tribunal can n be held to be either a judicial tribunal or a quasi-judical tribunal. I take up immediately the consideration of this question. In the year 1949, sitting as a Judge in the Lahore High Court, I had occasion to make a full examination of this ques tion in the case Sultan Ali v. Nur Hussain (P L D 1949 Lah. 301) and having re‑considered the views I there expressed in the light of the arguments presented before us in the present case I am persuaded that the views I then expressed are substantially correct and may usefully form the basis of my conclusion in the present judgment. In that case, the point which I was considering (at pages 311‑330) was the nature of proceedings before an Election Petitions Commission, as it was then styled, appointed under the Corrupt Practices Order of 1936, and carrying out enquiries in accordance with the provisions of that Order and of the Punjab Legislative Assembly Electoral Rules. As has already been, the controlling instruments are precisely the same in the present case with the single difference, which is not a difference of substance, that the body is now referred to as an Election Petitions Tribunal, and not as a Commission. I pointed out in my judgment that in dealing with an election petition, the Commissioners are required to comply as closely as possible with the procedure applicable to the trial of suits under the Civil P. C. The principal requirements are that upon receipt of a petition, notices should issue to the opposite parties, written statements should be called for, and statements recorded, after which the issues should be framed documentary evidence received in a proper manner and the witnesses summoned and examined. Then arguments were to be heard and finally the commission was required to make a report to the Government. I reproduced thereafter the provisions of paragraphs 7, 8, 9 and 10 in Part III of the Corrupt Practices Order, which read as follows:‑ "7 (1) Subject to the provisions of this paragraph if in the opinion of the Commissioners‑ (a) the election of a returned candidate has been procured or induced, or the result of the election has been materially affected, by any corrupt practice; (b) any corrupt practice specified in Part I of the First Schedule to this Order has been committed in the interests of a returned candidate; or (c) the result of the election has been materially affected by the improper acceptance or rejection of any nomination, or by reason of the fact that any person nominated was not qualified or was disqualified for election, or by the .improper reception or refusal of a vote, or by the reception of any vote which is void, or by any non‑compliance with the pro visions of the Act or of this Order, or of any Act of the Provincial Legislature or Rules relating to the election, or by any mistake in the use of any prescribed form; or (d) the election has not been a free election by reason of the large number of cases in which bribery or undue influ ence has been exercised or committed; the election of the returned candidate shall be void. (2) If the Commissioners report that a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice specified in Part I of the First Schedule to this Order, but further report that the candidate has satisfied them that‑ (a) no corrupt practice was committed at the election by the candidate or his election agent, and the corrupt practices mentioned in the report were committed contrary to the orders, and without the sanction or connivance, of the candidate or his election agent; (b) the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; (c) the corrupt practices mentioned in the report were of a trivial and limited character or took the form of customary hospitality which did not affect the result of the election; and (d) in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the Commissioners may find that the election of the candidate is not void. (3) If a person (not being entitled so to do) votes more than once at the same election, all his votes shall be deemed for the purpose of this paragraph to be void. 8. (1) At the conclusion of the enquiry the Commissioners shall report whether the returned candidate or any person who has lodged a petition and claimed a seat, has been duly elected and in so reporting shall have regard to the provisions of the last preceding paragraph. (2) The report shall further include a recommendation by the Commissioners as to the total amount of costs etc. which are payable and the persons by and to whom costs shall be paid. Any such recommendation may include a recommendation for the payment to the Advocate‑General of the Province or a person acting under his instructions, attending the trial in pursuance of an order of the Commissioners, of costs in respect of that attendance, but shall not include a recom mendation for the payment of costs in respect of any other Government expenditure in connection with the inquiry. (3) The report shall be signed by all the Commissioners and the Commissioners shall forthwith forward their report to the Governor, who on receipt thereof shall issue orders in accordance with the report and publish the report in the Government Gazette of the Province, and the orders of the Governor shall be final.

9. If either in their report or upon any other matter there is a difference of opinion among the Commissioners, the opinion of the majority shall prevail and their report shall be expressed in terms of the views of the majority.

10. Where any charge is made in an election petition of any corrupt practice, the Commissioners shall record in their report (a) a finding whether a corrupt practice has or has not been proved to have been committed by any candidate or his agent, or with the connivance of any candidate or his agent, and the nature of that corrupt practice ; and (b) the names of all persons, if any, who have been proved at the inquiry to have been guilty of any corrupt practice and the nature of that practice with any such recommenda tions as the Commissioners may think proper to make for the exemption of any persons from any disqualifications which they may have incurred in this connection under paragraphs two to five of Part IV of this order: Provided that no person shall be so named in the report unless he has been given a reasonable opportunity of showing cause why his name should not be so recorded." The substance of the above‑quoted provisions so far as it is relevant to the present discussion is that the opinion of the Commissioners which has been expressed in the form of a report as required by paragraph 8 is itself effective, under the provisions of paragraph 7 to produce a result in relation to the election of a returned candidate. If certain conditions are satisfied, the formation and consequent expression of the Commissioners' opinion is by itself sufficient to avoid the election. The Commissioners may however report in another sense, and in that case the election will not be void. By paragraph 10, the Commissioners are required to report specifically as regards any corrupt practice which they find to have been committed, with the names of the persons who are guilty of such corrupt practices, whether such persons be candidates or agents of candidates or other persons, along with recommendations, as they might think fit in relation to persons other than candidates or agents regarding exemption from disqualifications. These disqualifications, however, become operative by virtue of Part IV of the Corrupt Practices Order, 1936, as a consequence of the finding of the Commission. The law also places a statutory duty upon the Governor, when he receives the report of the Commission, to issue orders in accordance with the report, and to publish it in the Govern‑ment Gazette. Notwithstanding this provision, I expressed the opinion in the case of Sultan Ali v. Nur Hussain, that the opinion of the Commission as regards the validity of the election and, similarly as regards the commission of corrupt practices by named persons is "in all respects tantamount to a final opinion, which determines the result of the inquiry". The finality which attaches to the opinion of the Commis sioners in respect of these two matters, when expressed in the report, becomes absolutely clear when reference is made to the provisions of section 70 of the Government of India Act, 1935, the substance of which is re‑enacted as clause (3) of Article 78 of the new Constitution. When the election of the returned candidate is held by the Commissioners to be void, under the provisions of paragraphs 7 and 8 of Part III of the Corrupt Practices Order, 1936, it is obvious that such returned candi date ceases to be qualified for membership of the Provincial R Legislature. If after making of a report to that effect, such returned candidate sits or votes in the Legislative Assembly, he becomes liable to the penalty provided by the new Consti tution, which is the same as was prescribed by the Government of India Act, 1935. The words of the instruments confer effect and operation upon the opinion of the Commissioners as expressed in their report, with such clarity, that it would seem that the making of an order by the Governor under paragraph 8, sub‑paragraph (3) of Part III of the Corrupt Practices Order is not a sine qua non for the applicability of such penalty. On the question whether the Election Petitions Commission is to be regarded as a Court, I examined a considerable number of authorities in the case Sultan Ali v. Nur Hussain, which I do not propose to mention again in the course of this judgment. As regards the nature of the jurisdiction of such a commission, and the nature of the proceedings before the Commission and its final order, I observed as follows :‑ "It is undeniable that an election petition challenging the election of a member of a Provincial Legislature raises an issue relating to civil rights between persons within the jurisdiction. It is perfectly clear that by the Corrupt Practices and Election Petitions Order, 1936, the trial of such issues is entrusted exclusively to an Election Petitions Commission to be constituted by the Governor as required by the Order ; the Commission determines these issues not by reason of voluntary submission of the parties to its jurisdiction but under the sanction of law. By express pro vision in a statutory rule, the Commission is required to resolve the issues in the precise manner which a Civil Court has to follow, in the trial of suits, under the Civil Procedure Code. The conclusions reached by the Commission are definitive inasmuch as although the avoidance or otherwise of the election does not take place by direct order of the Commission, its opinion as expressed in its report is binding on the Governor who must make an order in accordance therewith, and such an order is by express words in the Order of 1936 declared to be final." On a consideration of the authorities cited in my judgment, I came to the conclusion (page 329) that an election petitions commission satisfied all the indicia of a Court and the mere fact that exclusive jurisdiction is given to the commission to decide certain classes of disputes arising between subjects does not in any way militate against the acceptability of that conclusion. Among those indicia may be mentioned particu larly the following:‑-- (1) to be a Court, the person or persons constituting such Court, must be entrusted with judicial functions, i.e., of deciding litigated questions according to law; (2) such person or persons must derive the power of so deciding questions, from the State, and therefore will be exercising the judicial powers of the State; and (3) the appointment of the person or persons constituting a Court should be by the Government; these persons should receive payment for their services exclusively out of Government funds and they should not be liable to removal by any authority other than the Government. Upon these considerations, it would seem that the Election Petitions Tribunal in the present case must also be regarded as a Court Mr. Nazir Ahmad Khan who appeared for the petitioner in the election petition, namely Mehr Muhammad Arif Khan, as well as for the Government of West Pakistan did not raise any argument to the contrary, Mr. S. A. Mahmud, Assistant Advocate‑General appearing for the Tribunal contended that it was merely an advisory body and that its report did not satisfy the requirements of a judgment, within the meaning of Article

160. When asked to indicate what were the requisites of a judgment, Mr. Mahmud defined it as a decision of a Court, operating under the duty to act judicially, which finally settles rights and liabilities between the parties to a dispute, and which is effective of its own force. A similar argument was sought to be advanced by the Attorney‑General of Pakistan representing the views of the Central Government, by leave of the Court. The Attorney‑General declared that the Tribunal was not a judicial tribunal, but a mere commission appointed by the executive for the purpose of gaining information and advice, and thus, obtaining aid in the determination of questions of the relevant kind. He referred in this connection to the judgment of the Federal Court in the case of Hamidul Haq Choudhury (P L D 1953 F C 279). The then Chief Justice of Pakistan in discussing the Act there in question namely the Public and Representative Offices (Disqualification) Act, 1949, made the following observation:‑- "It appears to me that the object of making a reference by the Governor or the Governor‑General under the Act is to get the benefit of the judicial training and experience of High Court Judges, and to obtain a finding on questions of fact by the application of judicial processes. The Legis lature has thought it right that the Governor‑General or Governor should obtain such expert advice from the judiciary rather than executive or administrative officers." The question there under discussion was as to the competency of an appeal to the Federal Court, under the Privy Council jurisdiction, from an order made by the Governor‑General under section 3 of the relevant Act or from the report of the High Court also made under the same section, upon which the Governor‑General had acted. The final conclusion of the learned Chief Justice was that "when a reference is made to a High Court or the Tribunal, under section 3 of the Act, the High Court or the Tribunal exercises a special jurisdiction, and (that) no appeal lies to this Court from the findings of the high Court or the Tribunal, or from the order of the Governor‑General disqualifying the petitioners from public life for a specified period". Akram, J. came to the conclusion that the jurisdiction of Courts in respect of reports and orders made under section 3 of the relevant Act had been completely ousted by statutory provisions governing the proceedings. In a separate judgment, I came to the conclusion that the reports of the High Courts in the cases before the Federal Court were not judicial determinations within the meaning of section 3 of the Judicial Committee Act, 1833, and that it was not the intention of the Act to create a judicial jurisdic tion. The following extract from my judgment in that case is relevant to the present discussion:‑-- "On the contrary, I am fully satisfied that the intention of the legislature in making this provision, is to secure the services of the Federal Court or a High Court or of two Judges of a High Court for the purpose of investigating the charges in question in the best manner known to human experience, namely, the manner of elucidation of fact and law by the judicial process. There seems no doubt that the highest Courts and Judges of High Courts have been designated with a view to providing a machinery of investi gation which will give satisfaction to the parties involved, being persons who have exercised high governmental or at least legislative functions, as well as to attract the confi dence of the public to whom the conduct and tie fate of its elected representatives is always a matter of deep concern." I also held that the subject‑matter of the legislation was such as placed it entirely outside the Sovereign's prerogative of justice. Those observations are however of no assistance to the learned Attorney‑General, for they have reference to statutory provisions of a totally different kind from those which are being examined here. There, it was perfectly clear that the disqualification for public or representative offices arose from the order of the Governor‑General taken in consequence of the finding arrived or by the Court or Tribunal to which the matter had been referred. In discussing the relevant provisions of the Act in my judgment (page 289) I drew a comparison between those provisions, and those of the Corrupt Practices Order, 1936. Although the conclusions which I there drew were obiter for the purposes of that case, they are directly opposite to the question under examination here. It will be of advantage if I reproduce the relevant passage from my earlier judgment at this point "Yet, the mere fact that a finding of guilty may impose a certain course of action on the Governor‑General is not sufficient to transfer the effect to the finding itself. Though judgments pronounced by the Judicial Committee have been held by the Judicial Committee itself to constitute judicial determinations despite the fact that they are couched in terms of humble recommendation to His Majesty and that a formal order embodying the operative portion of the judgment is invariably made by His Majesty himself, the fact that the judgment and the operative order are delivered and made by two entirely distinct authorities cannot be denied. The same condition exists under the Act here under exami nation, and it falls to be decided as a matter of first impres sion, whether effect must be given to a finding of guilty under section 3 of the Act as if the effect derived from the finding itself, or whether the correct view is that in the absence of an order of the Governor‑General, the finding itself is of no effect whatsoever. I feel no hesitation in adopting the latter view, as being the only view which is strictly in accordance with the provisions of the Act itself. Some advantage by way of clarification may be derived from examining the statutory provision for decision of dis putes relating to the validity of elections to Provincial Legis lative Assemblies, i.e., the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936. The principal provisions relating to the avoidance of elections are found in Parts III and IV of the Order and in the two Schedules attached thereto. Corrupt practices of varying degrees of enormity are defined in the First Schedule, and disqualifications entailed by such practices are specified in the Second Schedule. In Part III provision is made, of an exclusive nature, for motions, known as election petitions, whereby the election of a particular person may be called in question, and provision is made for reference of such petitions by the Governor, for trial, to a Commission. The procedure to be followed by the Commission is prescribed by rules, and in all material respects is the same as that provided for the trial of civil suits. Under para. 7 of Part III of the Order, where the Commissioners are of opinion that certain things have happened, e.g. that an election has been procured by a corrupt practice or that certain corrupt prac tices have been committed in the interests of a returned candi date, "the election of the returned candidate shall be void", and under para. 8, the Governor is bound on receipt of the Commissioners' report to issue orders in accordance therewith and it is further directed that "the orders of the Governor shall be final". The parallel between the provisions of the Corrupt Prac tices Order and those of the present Act is however, far from being complete. It is true that the Commissioners are enjoined to follow strictly judicial procedure, yet their find ings are given effect by the instrument without the interven tion of any act by the Governor. The argument sought to be applied to findings under section 3 of the Act, can be sustained with reference to the reports of Commissioners in its integrity, i.e., that they are judicial determinations. The circumstance which renders them immune to correction is that they are given effective finality by the instrument itself. In the case of enquiries under the Act, effective finality attaches to the order of the Governor‑General, and not to the findings under section 3, but this does not neces sarily import susceptibility to correction by the mode of appeal. For that, it is necessary that they should be "judicial determinations". In my opinion that statement constitutes a sufficient answer to the contention raised by the learned Attorney‑General. I feel no hesitation in saying that the Election Petitions Tribunal has functioned as a Court in relation to the present case, and that its "report" is a "judgment" in every sense necessary for the exercise of this Court's power to entertain appeals under Article 160 of the Constitution. It remains to consider on this part of the case the argument that an appeal is barred by virtue of the President's Order IV of 1956 to which reference has already been made, and in particular sub‑clause (c) of the new clause (5) which was added to Article 225 by means of this Order. I have already remarked upon the absence from the new provision of any direction such as that contained in subsection (6) of section 12 of the Estab lishment of West Pakistan Act, 1955, which laid down that "the validity of an election under section 11 of this Act shall not be questioned in any Court". The effect of such a provision would have been to place, questions relating to the validity of elections entirely outside the purview of all Courts including the then Federal Court, which was not invested with the wide power, of entertaining appeals that has been conferred upon the Supreme Court by Article

160. By the absence of such a provision coupled with the addition of the new and wide powers under Article 160, an intention might be deduced of not excluding questions of the validity of such elections from the purview of the Supreme Court. It is, in my opinion, right that the construction of the aforesaid sub‑clause (c) in clause (5) of Article 225 should be approached from this point of view. The Supreme Court would not be interfering in an appropriate case, with the order of the Governor, but would be merely exercising its judicial power of appeal in respect of the "judgment" of the Election Petitions Tribunal, as contained in its report. The judgment of this Court would, in a case where interference was found to be necessary, be substituted for that of the Election, Petitions Tribunal, and the duty cast by the Constitution, upon the Governor would be to make an order in accordance with the appellate judgment. In order to do so, it would be necessary for the Governor to amend or modify the earlier order made in accordance with the report of the Tribunal, and no doubt need be felt regarding the existence of power for that purpose. Mr. Chundrigar for the appellants argued, without any great conviction, that the Tribunal was not properly constitut ed for the reason that one of the members Mr. Abdul Hamid did not possess any qualification for his appointment. In order to satisfy the requirements of subsection (2) of section 12 of the Establishment of West Pakistan Act, 1955, a person to be appointed a member of the tribunal shall be a person "who is or has been a District and Sessions Judge in Pakistan". The contention against the validity of the appointment con tained in the third reason in the concise statement of the appellants appeared to be that Mr. Abdul Hamid bad never been and was not at the time of his appointment a District and Sessions Judge in West Pakistan. That was not strictly necessary in terms of section 12 (2) of the Establishment of West Pakistan Act, 1955. It was sufficient that he had been a District and Sessions Judge "in Pakistan". As a reference to section 5 of the Government of India Act, 1935, as in force at the time of appointment of the Tribunal, will show, the territories within the Federation of Pakistan included acceded States. The Bahawalpur State acceded to Pakistan very soon after the Constitution of the Dominion of Pakistan. At one stage of the argument, Mr. Chundrigar was pre pared to admit that Mr. Abdul Hamid had served as District and Sessions Judge, Bahawalpur. Latter it was represented that the admission was not correct. The facts of Mr. Abdul Hamid's appointment have not been stated in the report. It is clear that the duty of placing these facts on the record fell to be performed by that 'party which sought to avoid the acts of the Tribunal on the ground of improper constitution. We cannot permit such matters, which should have been placed in evidence at the earliest stage, to be investigated in the appeal. Moreover, it is admitted for the appellants that the order of appointment of Mr. Abdul Hamid to be District and Sessions Judge, Bahawalpur had been made by the Government of West Pakistan, prior to his appointment as a member of the Tribunal. It is true that the interval between the two orders was very brief, but the law is sufficiently met by the existence of the interval however short. It was urged that until Mr. Abdul Hamid had been installed as District and Sessions Judge, Babawalpur, he could not be regarded as satisfying the requirement of being a District and Sessions Judge in Pakistan. I cannot accept this contention. The relevant statutes do not support the existence of any such condition. It is not contended that Mr. Abdul Hamid was deficient in judicial experience of the nature which this statute was designed to secure, by the requirement that members of the tribunal should have been District and Sessions Judges in Pakistan. He had, in fact, been a Judge of the Bahawalpur High Court, until the absorption of Bahawalpur in West Pakistan. Accordingly, I find no force in the contention raised against the proper constitution of the Tribunal. Having thus found that the Tribunal was properly consti tuted, and that its report is a judgment within the meaning of Article 160 of the Constitution, and further that other statutory provisions relating to such tribunals do not stand in the way of interference by this Court in appeal with the report of the Tribunal, on any ground of impracticality, I now proceed to consider the findings recorded by the Tribunal in regard to the commission of corrupt practices by the six principal respondents in the petition. Taking first the corrupt practice of conveying electors to the place of voting, the facts found by the Tribunal may be briefly stated as follows: The six principal respondents went to the place of polling, namely Jhang, on the morning of the 19th January 1956, from Lyallpur, which is forty‑seven miles distant from Jhang, and they travelled together by a public bus. Several of them owned motor cars, and three cars are said to have been available for them at Lyallpur on the 19th January 1956. Yet they chose to travel by a public convey ance for which the charge was Rs. 1‑8 0 per passenger. These six respondents had also taken a very strong precaution to ensure their personal safety at that time, namely, that through the exercise of influence with a Minister at Lahore, they obtained an order from the Inspector‑General of Police that the Police force at Lyallpur should provide them with an escort to ensure their safety during their journey to Jhang, as well as their freedom from interference at the time of polling. In view of this action, it may be presumed that their preference for travelling from Lyallpur to Jhang in a public conveyance was also a precaution against any molestation or attack. They may have felt, as many travellers do, that they would be more safe in the company of other passengers in a public convey ance than they might be in their own private cars. There is evidence on the record to show that a few days before the polling, there had been made to the District Magistrate of Jhang a representation by a relation of the respondent Muhammad Saeed to the effect that Muhammad Saeed and the other voters in the election who were siding with them, were in personal danger on account of the pressure and the threats which were being held out to them to vote in a particular way. A request was made that the District Magistrate should issue an order under section 144, Criminal P. C. for the main tenance of peace and good order at the time of the election. After consulting the police authorities, the District Magistrate did indeed make such an order. The fifth issue framed by the Tribunal which relates to this corrupt practice of payment of conveyance expanses was as follows : (5) Did Mr. Sher Muhammad Barwana, respondent, pay the expenses of the police escort as mentioned in para. (4) (iii) of the petition ? If so, to what effect?" Upon this issue, the finding of the Tribunal is as follows :

We have also no hesitation in finding the first part of the 5th issue in favour of the petitioner. The question, how ever, arises whether the second part of the issue can also be found against the respondents. Paragraph 2, subpara graph 1, of Chapter I, Part E, of the Punjab Legislative Assembly Electoral Rules, 1950, which is applicable to the election in question and which alone has been relied upon on behalf of the petitioner, makes only the following corrupt practice : "Any payment or promise of payment to any person whomsoever on account of the conveyance of any elector to or from any place for the purpose of recording his vote." It was argued on behalf of the petitioner that since the police escort went with the respondents to the polling station it must be deemed to be a part of "conveyance". The respondents, on the other hand, strenuously contended that a literal interpretation alone can be placed upon the expres sion "conveyance" and its meaning cannot be extended. We are inclined to uphold the petitioner's contention. The idea underlying the rule obviously is that a voter should not be obliged to any candidate just before the polling and since it is in public interest that no form of corrupt practice, not only in the legal sense but also in the real and practical sense, should be committed a wide interpretation should be placed upon all forms of corrupt practices. After all, it is respondents' own case that they could not have possibly gone to the polling station without the police escort and to that extent the escort helped, and was a part of their "conveyance" to the polling station. Even part from this, we are convinced that the respondents' actual conveyance was paid for by Sher Muhammad Barwana. Maulvi Muhammad Zakir admittedly did not pay for his own conveyance and some other member of his party according to our finding, Sher Muhammad Barwana paid for it. We, therefore, hold under the second part of the fifth issue that the payment of the police escort did amount to a corrupt practice; and, at any rate, it has transpired during the course of the evidence that even the conveyance of the respondents was paid for by Sher Muhammad Barwana, which undoub tedly, is a corrupt practice". I consider that is a matter of very great regret that in so readily coming to the conclusion that a corrupt practice had been committed the Tribunal should have altogether failed to apply its mind to consideration of the necessary ingredients of the alleged corrupt practice. It has been pointed out already that this corrupt practice, namely the payment of conveyance expenses to electors for going to the place of voting, cannot have the effect of avoiding an election unless it can be shown that the result of the election has been materially affected thereby. In the absence of any allegation that the police escort by its presence on the journey to Jhang or at the polling station in Jhang exercised such an influence over any of the six principal respondents as induced them to vote in a particular way, and so to influence the result of the election materially, the mere fact of the escort having been paid for would be altogether irrelevant. There is no allegation of any such influence. The learned counsel appearing for the respondents have found it impossible to sustain the argument on which the Tribunal has found that the payment of expenses of the escort constituted payment of conveyance expenses within the meaning of paragraph 2 (1) of Chapter I in Part E of the Punjab Legislative Assembly Electoral Rules, 1950. It is clearly in evidence that the procurement of the escort was a joint act of all the six principal respon dents, and was performed to attain a common purpose namely, their mutual safety. The Tribunal has stated at several places in its report that the apprehension felt by these respondents was illusory. It may be that their fears were unfounded, but that those fears were felt seems clear beyond all possible doubt, and the occasion certainly was one on which it might have been foolish for them to overlook any precaution which lay within their power for the purpose of ensuring the exercise of their right to vote. Even as to the payment, the evidence on the record is not of a nature that can, following principles applicable to proceedings of this nature, justify the finding of the Tribunal. The case for the respondents was that the payment was in fact made by a friend of theirs; Ch. Aziz‑ud‑Din, a lawyer and M. L. A. of Lyallpur. Ch. Aziz‑ud‑Din stated that he made the payment, but the City Inspector of Police of Lyallpur Mr. Muhammad Abdullah stated that it was paid by the person who accompanied Ch. Azizuddin and whose name he came to know was Mehr Sher Muhammad. A sum of Rs. 55 was paid, of which Rs. 53‑8‑0 were credited to Govern ment and the balance was repaid to Ch. Azizuddin. This witness admitted that the application for a police escort was written by Ch. Azizuddin and his superior officer Ch. Muhammad Shafi (P. W. 11) clearly stated the deposit was made in the name of Ch. Azizuddin. A charge of a corrupt practice is a quasi‑criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus, of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person. In the concluding paragraphs of its report, the Tribunal professes to have "given the respondents the benefit of all reasonable doubt in the sense that we have not accepted any inferences against the respondents, either from the evidence, or from the circumstances which were at all doubtful." In the same passage, they have declined to follow the rule laid before themselves by a great number of tribunals which in the past have dealt with election disputes, as regards the nature of a charge of a corrupt practice, and the principles to be followed in the trial of such charges. They have mentioned that the procedure applicable to such trials is the Code of Civil Procedure, that the person against whom a corrupt practice is alleged is competent to give evidence (unlike an accused person in a criminal trial) and that a finding of a corrupt practice cannot be followed by any penalties of the nature known to criminal law. It will be necessary to consider to what extent the Tribunal was right in assuming this attitude, in reaching certain other findings. For the present purpose it is sufficient to say that upon the evidence led in the case regarding payment of expenses for the police escort, there was patent and substantial doubt of which it was the duty of the Tribunal to give the benefit to the principal respondents. Although the jurisdiction conferred upon the Tribunal is special, by reason of its being confined to election matters, nevertheless it is a judicial jurisdiction, and the Tribunal were not at liberty, when confronted with conflict of evidence upon the same question of fact, to resolve it according to their caprice or desire. The Tribunal appear to have acted on the assump tion that the duty as to proof which lay upon the petitioner in the case with regard to the serious corrupt practices alleged by him, would have been sufficiently met by evidence raising a probability‑Perhaps a reasonable probability‑of the truth of that which was alleged. In so holding, the Tribunal have declined to follow the principles consistently adopted by similar election tribunals in the past and has laid down for itself a principle which, it must be stated with regret, is clearly calculated to deflect the course of justice. It is plain that the payment of expenses for the escort is not brought home by the evidence to any of the principal respondents, beyond reasonable doubt. It is plain also that payment of this escort is not payment of conveyance expenses within the definition of the relevant corrupt practice. As for the finding that the payment, of bus fares was by Sher Muhammad Barwana, it has to be pointed out, again with great regret, that it is not based upon any evidence at all. The amount involved for all the six respondents was only Rs.

9. The corrupt practice in question is not designed to hit a small payment of this kind by one wealthy person for himself and five of his other equally wealthy friends. I next proceed to examine the case relating to issue (4) which was in the following terms:‑ "(4) Was any bribe, as alleged, offered or given to Messrs Ghulam Haider and Nawazish Ali? If so, to what effect?" The corrupt practice of bribery is defined in the Corrupt Practices Order, 1936, as follows:‑ "Any gift, offer or promise by a candidate or his agent, or by any other person with the connivance of a candidate or his agent, of any gratification to any person whomsoever, with the object, directly or indirectly of inducing . an elector to vote or refrain from voting at an election This statement is extracted from the full definition in paragraph 1 of Part I of the First Schedule to the Corrupt Practices Order, 1936, which is supplemented by an explana tion that the term "gratification" is not restricted to pecuniary gratification or gratifications estimable in money, and that it includes all forms of entertainment and all forms of employ ment or reward. The allegations in the petition on this point were as follows: There was firstly an allegation that on a day which may be assumed to be the 13th January 1956, the respondent Muhammad Saeed suggested that one of the posts of Parliamentary Secretaries could be offered to Ghulam Haider in case he and Nawazish Ali cast their votes in favour of his group. Next it was alleged that between the 14th and the 18th January 1956, Ghulam Haider and Nawazish Ali Khan were taken on a trip to a number of places in the former N.‑W. F. Province, of which all the expenses were borne by the respondent Sher Muhammad Barwana. On this trip, Ghulam Haider and Nawazish Ali Khan were entertained to "sumptuous feasts" and "Frontier presents" were given to them. At the trial, the former allegation does not appear to have been pressed as an instance of bribery, although it is so described in paragraph (5) of the list of particulars. The matter was never brought to the point of an offer, since it was conditional upon the whole group gaining success in the election. A mere suggestion of preferment in case of a success being achieved jointly by the person making the suggestion as well as by the person to whom the suggestion is made, does not, in my opinion fall within the definition of bribery. The Tribunal has found that issue No. 4 has been established. Their finding is expressed as follows:‑ "We have no hesitation in answering Issue No. 4 in the affirmative. Even if all the expenses of the trip may not be considered as a bribe, there can be no doubt about the valuable presents which were given by the Sher Muhammad Barwana to Ghulam Haider and Nawazish Ali. Sher Muhammad made these presents and bore all the expenses not only for his own benefit but for that of his other companions as well." The discussion of the evidence which precedes these findings needs to be briefly stated to make it plain to how alight an extent these findings are based upon evidence. The report on this point commences with the statement that the Tribunal had shown that Mr. Barwana paid the expenses of the escort from Lyallpur to Jhang, as well as the hotel bills of two persons who came to Murree to give evidence before the Tribunal during the hearing of the election petition. The date of the first payment was the 19th January 1956, and therefore it is irrelevant to the allegation in the petition on the point of bribery. The evidence regarding the making of this payment by Sher Muhammad has been seen to be clearly open to reasonable doubt, being contradicted by other equally credible etc. evidence. Similarly, the payment of expenses to witnesses at the trial of the petition cannot be supposed to have any relevancy to the alleged payment of the bribes prior to the election. The Tribunal go on to say that the cars in which the Frontier trip was made belonged to Muhammad Saeed and Sher Muhammad Barwana. They reproduce extracts from the evidence of the respondents Nawazish Ali, Maulvi Muhammad Zakir, Muhammad Mohsin and Sher Muhammad Barwana. Maulvi Muhammad Zakir admitted that all his expenses had been paid by Muhammad Saeed with whom he had special relations. Nawazish Ali Khan said that each member of his party bore a proportionate share of the expenses of the trip and so did Muhammad Mohsin. Sher Muhammad Barwana said that several times different members of his party purchased petrol for his car. A hotel bill at Peshawar is proved to have been paid by Muhammad Saeed. Such evidence as there is points to sharing of expenses, and if at all the expenses appear to have fallen on one person more than on the rest, that person was Muhammad Saeed. There is no proof whatsoever to sustain the finding that Sher Muhammad Barwana bore all the expenses of the trip. Then, as regards the alleged valuable presents, the evidence mentioned in the reports is as follows: The res pondent Muhammad Zakir said that he had seen Ghulam Haider and Nawazish Ali Khan wearing Talagang embroidered shoes in Talagang on the way back from Peshawar. In answer to a question he said he could not deny that Sher Muhammad Barwana may have paid for them nor could he deny that "Nawazish Ali Khan respondent had a new Chugha in Peshawar." He could not say that "all these articles had been presented or purchased by Sher Muhammad Barwana." Muhammad Mohsin respondent said that "Nawazish Ali purchased a Chugha to my knowledge but I do not know whether he purchased any shoes or that Ghulam Haider purchased anything." No suggestion that these purchases were made by Sher Muhammad Barwana appears at all in this respondent's evidence. The last piece of specific evidence on this point was given by Mehr Muhammad Yar Lak in the following words:‑-- "When the respondents came to my house, Messrs Nawazish Ali and Ghulam Haider were wearing new Peshawari Chughas and new embroidered shoes." This statement in the view of the Tribunal "let the cat out of the bag." It will be seen that there is nothing of a positive nature in these statements which might have, gone to support the suggestion that Sher Muhammad Barwana bought these articles for Ghulam Haider and Nawazish Ali but a witness for the petitioner Lt.‑Col. Sultan Mubariz Khan P. W. 16 declared that in his presence Ghulam Haider and Nawazish Ali had offered Rs. 200 to Sher Muhammad Barwana for the price of articles which he had bought on their behalf, and the offer was refused by Sher Muhammad Barwana, who said that the articles should be treated as friendly presents. This statement was relied upon by the Tribunal, but being in the nature of an admission, it required to be put to Sher Muhammad Barwana before it could be accepted. Sher Muhammad Barwana denied that at the house of Muhammad Yar Lak, Ghulam Haider and Nawazish Ali Khan had offered to pay him the price of the articles he had purchased and stated that in fact he did not purchase any such articles. Similar denials were made by Ghulam Haider and Nawazish Ali. This being the state of the evidence, it is a matter of surprise to find that the Tribunal were able to express their conclusion in strong terms as follows:‑ "We are convinced that in fact all the expenses throughout were borne by Sher Muhammad Barwana, who in his enthusiasm to become an M. L. A. for the first time in his life and to keep Ghulam Haider and Nawazish Ali on his side for the purpose, also indulged in purchasing costly presents for them and possibly also for some other members of his group." Such a conclusion can only have been reached by overlooking the evidence. As has been seen already, the Tribunal declined to treat the charges of bribery and undue influence in the manner of criminal charges. Even as regards the burden of proof, they appear to have adopted a jurisprudence of their own. In any early part of the report they have made the following observations: "Muhammad Saeed and his associates must have obviously taken every care to cover all their objectionable activities and, therefore, the greater part of the petitioner's case must rest, as in all cases of fraud and deceit, on such circumstances as may emerge from the evidence of both the parties. Mr. Muhammad Saeed and his party men, on the other hand, possessed direct, personal and, with regard to most of them, exclusive knowledge of the relevant facts. It was, therefore, clearly their duty to place these facts before the Tribunal and prove them. The respondents have not only abstained from the performance of this duty but have throughout these proceedings deliberately attempted to conceal and distort the truth at every step. This is a circumstance which gives rise to the strongest presumption against the respondent's case (rather cases as all of them seldom agreed on any material point) and in favour of the substance of the petitioner's allegations. We are, however, not content to rest our decision upon this presumption alone and have made anxious and pro longed effort to sift the grain of truth from a mass of perjury and distortions." This may be stated more briefly as a declaration that the burden of proving that the charges were untrue lay upon the returned candidates, who had failed to perform their duty of placing before the Tribunal, in full, their knowledge of the relevant facts. The language adopted by the Tribunal leaves no room for any possible doubt that they were misdirecting them selves in regard to the course which they should have followed in deciding the issues before them, on the basis of the evidence led in the case. Only thus could they ever have reached the conclusion that a fact which it was the duty of the petitioner in the case to establish by proof beyond reason able doubt, could be found on the basis of clear denials by several members of the opposite party, speaking on solemn affirmation. The findings on these issues are clearly of a conjectural character. In reaching those findings, the tribunal, while expressing anxiety to get at the truth, have deliberately ignored the procedure which the law prescribes for the ascertainment of the truth. They have gone further still, for they have ignored also the principal ingredient of the corrupt practice, namely bribery, viz., that the gratification should have been given and received with the object of inducing, in this case, the two electors Ghulam Haider and Nawazish Ali Khan, to cast their votes in a particular manner. In accepting the statement of Lt.‑Col. Sultan Mubariz Khan, against the clear denial of Sher Muhammad Barwana and these two electors the Tribunal have failed to observe that the alleged offer by Ghulam Haider and Nawazish Ali Khan to pay for the things which they are said to have received, puts it beyond doubt that they had not received them as gratification for casting their votes in a particular manner. The reply alleged, viz., that the things were merely "friendly presents" makes it clear that they were not given for any such purpose. The law relating to corrupt practices and their investiga tion has been formulated on the basis of lengthy experience, by persons whose anxiety to secure the purity of elections cannot be regarded as of lesser degree than that displayed by the Tribunal in the present case. The provisions of this law contain within themselves a series of pre cuations against the possibility of error or excess, which might have the effect of making the remedy worse than the disease. Over a long course of years, other tribunals which have dealt with election petitions and whose anxiety to ascertain the truth must be placed on a par with that shown by the Tribunal in the present case, have laid down rules of practice in regard to important matters such as the burden of proof, and the quantum of evidence necessary to establish corrupt practices. The penalty for commission of corrupt practices is of the most serious character. The loss of civic rights in the shape of disqualification for voting or for standing .as a candidate for election to a representative status is in itself a grievous one. But the further penalty of the loss of representative status, achieved by gaining the sufferages of the electorate which follows avoidance of an election is one which, in the democratic State, must be placed among the most severe known to law. Consequently, the law necessarily expects a very high degree of care that these penalties should not be applied and that the expression at an election of the wishes of the electorate should not be set at naught, except where the necessary conditions are found, in detail, to have been established, after an inquiry conducted in accordance with strictly judicial process, affording the greatest assurance against the possibility of error. That is also the reason why the law prescribes that the function of holding such inquiries which might lead to momentous consequences of the nature indicated above should be entrusted not to a single person, but to three persons, and that each of these persons should be equipped with judicial experience of the highest available kind. It has to be stated with profound regret that in the present case, the expectations of the law and the legislature have not been realised, and that this unhappy result is due primarily to the refusal of the Tribunal to accept the juris prudence applicable to the task before it. It is perfectly clear that the finding of guilty on the charge of bribery cannot be sustained at all. I cannot refrain from observing also that in finding that "costly presents" were given to Ghulam Haider and Nawazish Ali Khan, in order to induce them to vote for the other returned candidates, the Tribunal have altogether ignored the circumstances of the case. Here was an election in which six persons were to be returned by an electorate composed of nine persons and each of the latter was interested in himself being returned. If as many as five persons could agree to vote only for each other and for none of the remaining four, the election of all five was assured. Therefore, in agreeing to vote for the other four, each of the persons in the majority group was agreeing to cast a successful vote for himself as well, and in such a situation, it is difficult to imagine the necessity or purpose of any bribe at all. All that was necessary was that a group of five should remain united and faithful to each other. Moreover, the Tribunal might well have taken into account in relation to Ghulam Haider and Nawazish Ali Khan before reaching the conclusion that these persons had allowed themselves to be bribed, what manner of men they were. Both of these persons have been Members of the Provincial Legislative Assembly since 1951. Nawazish Ali Khan owns about 296 squares of land, amounting to some 7,250 acres. Ghulam Haider owns some 85 squares of land, and is besides the head of his tribe which form about 75 percent. of the population of Jhang district. To suggest that persons enjoying high status by reason of their great estates, their pre‑eminance in relation to the electorate, their representative character, and the great influence which it conferred upon them, could be bought for a pair of Talagang embroidered shoes and a Peshawari Chugha, is to my mind, the height of absurdity. The absurdity would have appeared at once to the mind of the Tribunal if they had appreciated that it was necessary to prove gratification given and received for the casting of a vote. The allegations of undue influence form the subject of the issues which have been found against the returned candidates. These are issues Nos. 1 and 3, of which it will be convenient to consider the third issue first. This issue is framed in the following terms:‑ "(3) Were Messrs Ghulam Haider and Nawazish Ali coerced into making a promise on the Kalima to vote in favour of the respondents, as alleged? If so, to what effect?" The finding on this point appears to bear little relation to the substance of this issue. The allegation contained in the petition is in the following terms:‑ "From 14th January 1956 to 18th January 1956, Mr. Ghulam Haider and Mr. Nawazish Ali were taken by respondents 1 and 3 to various places including Landikotal and Peshawar and the subtle technique of inducements and threats was continued with the help of others with identical interest and friends of Daultana Group. In the seclusion and wilderness of Tribal Area the two voters were reduced to a state of helplessness and under coercion and threats, which were worse than `the argument of the stick' . . . they were made to promise on Kalima that they would vote for the returned candidates." These allegations were denied in the written statement filed by the respondents, where it was said that Ghulam Haider and Nawazish Ali Khan were big Zamindars and men of considerable influence themselves and that all kinds of pressure had been put upon them to vote for Syed Abid Hussain, a member of the opposite group, who was at the time a minister. It was further alleged that a battle of nerves and exercise of undue authority was practised upon them "by a Minister". As regards the journey, they said that they had been moving about freely together as free agents, and "were only trying to avoid any harassment by the agents and hirelings of Syed Abid Hussain, Minister for Local Bodies and the petitioner who abounded all around". The petitioner and the opposing party had collected many thousand men to waylay the returned candidates in order to coerce them to vote for the other group. The aforesaid Minister and another Provincial Minister had been searching for the returned candidates in Lyallpur on the night preceding the election and they also sent numerous persons to put pressure upon the latter, which was however successfully resisted. One witness was produced by the petitioner in support of the specific allegation contained in issue No. 3, viz., Yar Muhammad P. W. 20 a resident of Jamrud, and his evidence was so clearly fabricated that no reliance was or could have been placed upon it either by the Tribunal or by counsel for the respondents appearing before us. This witness in the course of buying firewood in the place called Ali Masjid professed to have heard a row from a neighbouring mosque and on going there, to have seen four or five Panjabis and four Mahmand Pathans, who were asking two of the Panjabis to vote for the other three. When the request was refused, the Pathans threatened to keep the two Panjabis in confine ment at that place if they refused to vote, whereupon they took an oath to vote for the other three. Yar Muhammad professed to be able to recognise only one of the Panjabis namely the respondent Muhammad Saeed. The Tribunal acted rightly in declining to accept this remarkable statement from an admittedly chance witness. In the absence of other evidence to support the allegation in the petition, this charge should have been held to be not proved. The Tribunal, however, recorded a finding of guilty in relation to facts wholly different from those alleged in the petition. The finding is as follows: "As regards issue No. 3, this again must be answered in favour of the petitioner and against the respondents, with this modification that the solemn promise, amounting to an oath, was made not only by Ghulam Haider and Nawazish Ali, but by all the respondents to each other, not on the Kalima but by placing the Holy Quran before them. Some of them also invoked their legitimacy in making the promise. There cannot be the slightest doubt that these oaths amounted to undue influence inasmuch as it became impossible for those who took them to exercise their judgment and will freely thereafter." The solitary evidence upon which this finding is based is the statement in cross‑examination of one of the returned candidates Maulvi Muhammad Zakir, to the effect that one or two weeks before the filing of the nomination papers, he and the other five returned candidates made a "zabardast promise" that in the election they would stand by each other and not part company. This promise was made by them sitting in a group, in front of the Holy Quran. The witness stated his belief that such a promise was to be regarded as being made on halaf although none of them mention either God, or Prophet, or Faith, or Kalima. He also added his belief that to break such a promise would invite punishment in the next world. The Tribunal expressed the opinion that there could not be "the slightest doubt about the veracity of at least that part of this statement which goes against the interests of its maker," and went on to observe that all the other returned candidates who were respondents in .the case, were bound by it because firstly the interests of Maulvi Muhammad Zakir were not at variance with those of the others and secondly because Maulvi Muhammad Zakir was examined as a witness for all the six returned candidates, and not only for himself. They concluded their findings in the following words:‑- "The fact that according to the beliefs of all the Muslims and the six respondents, the breach of that zabardast promise on oath was bound to be punished in the world hereafter, leaves no room for doubt that the taking of the oath by each of the six persons at the instance of the other five amounted to the corrupt practice of undue influence within the meaning of para. 2 of the First Schedule of the Government of India (Provincial Elections) etc. Order 1946." Now, the time given by Maulvi Muhammad Zakir for the taking of this alleged zabardast promise is well in advance of the period during which the group of six persons headed by Muhammad Saeed, were making their short tour of place in the Frontier viz., the 14th to the 18th January 1956. The Tribunal did not accept Muhammad Zakir's statement that it was "one or two weeks before the filing of the nomination papers", but thought it was between a date one week before the filing of the nomination papers, and the 12th January 1956. In order to come to this conclusion, they were constrained to say that they could not place implicit reliance upon Maulvi Muhammad Zakir's statement in this behalf, because in their view this person belonged "to that category of witnesses who while reluctant to tell an obvious or patent lie are anxious not to speak the truth which will go against his, or his friend's or party's interest." In either case, the date would be totally different from that suggested for the taking of the oath on Kalima in the petition. Secondly, Maulvi Muhammad Zakir stated that the zabardast promise was made at Jhang, while the allegation in the petition was that the oath was taken somewhere in the Tribal Area. Thirdly, the petition alleged that Ghulam Haider and Nawazish Ali were coerced into taking the oath, after having been reduced to a state of help lessness. Nothing of the kind appears in relation to the gathering of which Maulvi Muhammad Zakir speaks. His evidence was as regards a promise freely made by each of the six persons, to stand by each other and not to part company in relation to the election. The statement says nothing about a promise to vote, which is the essence of the matter, from the point of view of a corrupt practice. The circumstances clearly show that it was of the utmost importance to these six persons, if they wished to be returned at the election, to remain firm to the last, in their loyalty to each other. It gees without saying that the strain upon the loyalty of each member of the group was proportionate to the fact, which was plain to everyone concerned, that transfer of one single vote from one side to the other would suffice to carry the successful group, as a whole, into the new Assembly. A promise to stand by each other and not to part company was therefore a promise which each person in the group made in his own interest, and the further inference is necessarily that he needed no inducement of any kind from any other person, beyond a promise of support from such other person for himself, in order to bind himself. By such a promise, an elector may be thought to interfere with the free exercise of his own electoral right of voting. But it is clear that he would be doing so of his own free will, and not by reason of any direct or indirect interference or attempt to interfere by any other person. Thus it is plain that Maulvi Muhammad Zakir's evidence does not support, even to the slightest extent the allegation regarding the administration of an oath on the Kalima made in the petition. It is also clear that if he speaks to a binding oath, that oath was, in terms, an oath of loyalty to the group. There is nothing contrary to the law of elections in persons mutually binding themselves to act as a coherent group m relation to an election especially where, as in the very special circumstances of the present case, each elector is himself a candidate for election. The evidence of Maulvi Muhammad Zakir goes to this extent, and no further. The incident to which he speaks took place many days before the polling date. In the interval much may have happened. It is not difficult to conceive of the group having broken up under the pressures to which it was subjected, and in that case, the sanctions of the oath would apply to the defection. The polling being a subsequent matter, the seceding member could not be thought to invite further divine displeasure by voting against the group which he had Jeft. Consequently, the conclusion of the Tribunal that the zabardast promise deposed to by Maulvi Muhammad Zakir constituted interference with the electoral right of voting cannot be supported. But there is another ground, based upon the established law of election petitions, which militates against the acceptance of this finding of the Tribunal. In election law, it is very well settled that, while particulars may be added to the allegations of corrupt practices contained in the petition, so as to make these allegations more specific, no fresh instances of the same or other corrupt practices may be added to the petition. Among a great number of published reports of election petitions commissions, in which this principle has been laid down, the following may be mentioned, viz., the Amritsar City (Muhammadan) 1924 case, the Kistna (non‑Muhammadan) 1928 case and the Sheikhupura (Muhammadan Rural Group) 1921 case, which will be found in Hammond's Indian Election Cases, 1935, at pages 83, 447 and 649 respectively. A full discussion of the subject will also be found in the report of the Karnal (Muhammadan) 1937 case published at page 428 in Indian Election Cases, 1935‑1951 by Sen and Poddar, where a large number of other authorities to the same effect are cited. In support of the course adopted by the Tribunal, Mr. S. A. Mahmud cited the Amritsar City (Muhammadan) 1937 case published at page 32 in Sen and Poddar's book. That however was a different case altogether. The allegation in the petition was that an agent for a certain candidate at an election speech had made the audience take oaths to support that candidate, and had uttered spiritual threats against those who did not vote for him. In evidence however this agent had admitted having also said on the same occasions, that to vote for the opposing candidate was haram. The Commission in that case examined the effect of this further declaration also, on the ground that it was an admission made by the agent of a candidate and there was authority to the effect that an admission by a candidate himself of a corrupt practice, might be made the ground of a finding, even though it was not alleged in the petition. In the present case however the facts as found by the Tribunal relate to a different time, a different place, a different oath, and to completely different circumstances from those alleged in the petition, and there was ever reason why the Tribunal should have followed the general rule accepted in election law, namely that a fresh instance of a corrupt practice will not be allowed to be established in the inquiry. The last finding to be considered is that on the first issue which reads as follows: "(1) Was any undue influence or coercion exercised by the respondents over Messrs Ghulam Haider and Nawazish Ali, as alleged by the petitioner? If so, to what effect?" The allegations have been briefly mentioned already, but it will assist in the discussion of the evidence if they are repeated here. It was said that after the scrutiny proceedings of the 13th January 1956, the respondent Maulvi Muhammad Zakir falsely represented to Ghulam Haider that they might visit their peer at Sial Sharif, and Ghulam Haider agreed, taking with him Nawazish Ali Khan. The other returned candidate; namely Sher Muhammad Barwana and Muhammad Saeed also went with them. On the way Maulvi Muhammad Zakir dis closed that in fact they were going for consultation about the election, and at a place named Radhan, they were pressed by Maulvi Muhammad Zakir, Sher Muhammad Barwana, Muhammad Saeed and Muhammad Mohsin to abandon the opposite party and come over to their party, emphasising that their own party, whose leader is said to be Mr. Daultana, was certain to come into power and thus Ghulam Haider and Nawazish Ali stood to gain advantage, On the other hand, if they remained faithful to the opposite party, they stood in danger of being victimised later. It was on this occasion that the offer of a Parliamentary Secretary whip was made to Ghulam Haider. It was admitted in the petition however that this treatment did not produce the desired effect, and there fore the two voters were reminded of the treatment accorded to Syed Abid Hussain when Mr. Daultana was the Chief Minister of Punjab. Syed Abid Hussain had been removed from the chairmanship of the District Board, and a criminal case had been started against him. The principal allegations of undue influence however were contained in the sixth paragraph of the list of particulars, viz., that from the 14th to the 18th January 1956, Ghulam Haider and Nawazis Ali were taken to a number of places in the Frontier, and subjected to inducement and threats by the other returned candidates as well as friends of the Daultana group. The allegation that they were coerced into taking an oath on the Kalima in the Tribal Area, and also cajoled by being taken on the trip free of charge, and being given Frontier presents in order to humour them was also made. It was added that on the 18th January 1956, Ghulam Haider and Nawazish Ali were brought back to Sargodha and reached Lyallpur on the evening of the same day, all precautions being taken to avoid their presence being noticed. They were "dumped with dramatic suddenness" at the polling station in Jhang, a few minutes before the polling was due to commence. They were under heavy police escort which stayed there until they had voted. With reference to this entire course of events it was said, regarding Ghulam Haider and Nawazish Ali:‑ "During all this time, they were deprived of freedom of movement and association. Thus the free exercise of right to vote was seriously interfered with, vitiating the election." The discussion of evidence thought by the Tribunal to be relevant to this issue covers some twenty printed foolscap pages in a report of some 37 pages. The following findings on facts thought by the Tribunal to be relevant were reached in the course of this discussion: (1) "We are definitely of the opinion that Ghulam Haider and Nawazish Ali were definitely committed to the Shah Jewna Group until the 27th of December 1955." (2) "We summarily reject the case of the petitioner which in the peculiar circumstances of this case, really amounts to no more than a mere belief on his part‑that Nawazish Ali and Ghulam Haider were in heart and soul with the Shah Jewna Group until after the scrutiny of the nomination papers on the 13th of January when they were decoyed or abducted by Mr. Muhammad Saeed and his party. Upon the evidence on the record there is not the slightest indication of any abduction or the use of force by any member of Mr. Muhammad Saeed's party at any time between the 13th and 19th of January 1956. There may have been deception or inducement but not force. The very fact that these two persons went away with Mr. Muhammad Saeed on the 13th immediately after the scrutiny was over convinces us beyond all doubt that by that time they had, somehow and to some extent, come near Mr. Muhammad Saeed: and the loyalty, old as well as recent to the Shah Jewna Groin? had in some measure become uncertain." (3) "Unfortunately it was not possible for the petitioner to furnish us with all the data for resolving the problem and the respondents Nos. 1 to 6 have throughout insisted upon suppressing the truth‑which was known only to them‑and misleading the petitioner, and us, by putting forth false, distorted, and contradictory versions of every incident and aspect of the case. We only know that for about 3 to 4 years prior to the elections Ghulam Haider and Nawazish Ali, had, more or less all along, been with Major Mubarik Ali Shah and Col. Abid Hussain; that the position, Status and influence of the last named two persons in the district of Jhang was far greater than that of Mr. Muhammad Saeed or his party; that Nawazish Ali and Ghulam Haider's mentality and character were such as to lean them towards persons possessing local influence and power; that about a month before the elections they had entered into a pact of mutual support with the Shah Jewna Group, that they stood by their past loyalty and agreement at least until the end of December 1955, and that a few days before the filing of the nomination papers they took the oath to support Muhammad Saeed's group instead. Nawazish Ali and Ghulam Haider themselves stated on oath that they never requested Muhammad saeed to admit them in his group. The only reasonable inference possible from these facts is that some very strong pressure, inducement or deception must have been used by Muhammad Saeed and his friends to win these two people over to their side. The statement and demeanour of Muhammad Sated in the witness‑box, and indeed the entire evidence on the record, has not left a shadow of doubt in our minds that Muhammad Saeed is a very shrewd, astute and unconscionable individual." (4) "In view of the refusal of Muhammad Sated and his followers to disclose the truth of which they alone could have had knowledge and their insistence upon misleading us by telling lies, we must hold that Muhammad Saved and some of his friends had used means to win over, Nawazish Ali and Ghulam Haider which, if disclosed, would go against them‑in other words, they brought about this result by some form of corrupt practices; either bribery, or undue influence, or both." (5) "The decision of Muhammad Saeed and his group to go away from Jhang was not taken on the 27th December 1955, but immediately after the scrutiny of nomination papers had taken place on the 13th January 1956, and when they left Jhang Ghulam Haider and most of the others did not know either that they were going to Peshawar, or that they were to return to Jhang only on the morning of the 19th January 1956." (6) The party halted at Sargodha for the reason that it was a Daultana stronghold. (7) They went on to Peshawer and stayed there for some time. Muhammad ' Saeed's intention was that Ghulam Haider and Nawazish Ali should be taken to Khan Qurban Ali Khan, a powerful supporter of Mr. Daultana, who was then Minister for Tribal Affairs with headquarters at Peshawar, Not believing the evidence of a witness who said that Ghulam Haider and Nawazish Ali actually saw Khan Qurban Ali Khan at Peshawar, the Tribunal nevertheless held that Muhammad Saeed's intention was to bring about such a meeting so that Ghulam Haider and Nawazish Ali should be influenced strongly for voting with Muhammad Stated group. As this was not possible, Sher Muhammad Barwana introduced the two voters to other important friends, namely, Mr. Justice Habibullah and an ex‑M. L. A., Inamullah Khan. (8) In the mean time at Jhang, an application had been made for an order under section 144, Criminal P. C. by a relation of Muhammad Saeed, alleging danger to him and his group from the opposing party, and the returned candidates had also sent an application to the District Magistrate of Jhang for protection. These steps, as well as steps taken at Lyallpur on the 18th January 1956, to obtain a police guard for the journey to Jhang on the following morning were regarded by the Tribunal as part of a plan which included "some very strategic moves (by Muhammad Sated) to ensure that under the garb of security measures, the arm of the law should keep the Shah Jewna group at a distance from Nawazish Ali and Ghulam Haider until the latter polled their votes in favour of his group." (9) On the way back from the Frontier to Jhang, stops were again made at Sargodha where Daultana influence was strong and at Lyallpur, which also was a Daultana stronghold. At Lyallpur, using influence with Mr. Daultana who was at the time a Minister, Muhammad Saeed secured a police escort for the journey on the following day. (10) At the polling station, the police escort stayed with Muhammad Saeed's group isolating them from contract with other persons, right up to the time when the votes were cast. The final conclusion is stated in the following words:‑-- "As regards the first issue, we have said enough to indicate that this issue must be found against the respondents for more than one reason. We have found that the respondents were taken away from Rang on the 13th of January on a pretence, that they were kept away from Jhang right up to the time of polling in order that the Shah Jewna Group may not get an opportunity to canvass them and to dispel the influence, in whatever form it may have been exercised, of Muhammad Saeed and his friends and that Muhammad Sated, by creating fear in the minds of Ghulam Haider and Nawazish Ali within the help of high and influential personages in the Province, managed to create a situation which allowed him to have his voters‑especially Ghulam Haider and Nawazish Ali‑taken to the polling station by the police which, for one reason or the other, kept them away from the opposite party until all the votes had been cast." The returned candidates all denied that any kind of coercion or deceit was practised by or upon them, and all of them supported the explanation given for the journey to the Frontier in their written statement at the commencement of the proceedings. This has already been reproduced, but it will be convenient here to restate the substance of the reply. This was that they had gone away only to avoid harassment at the hands of the agents and hirelings of Syed Abid Hussain Shah who were active in great numbers. To explain the precautions taken at Lyallpur, it was said that thousands of persons had been collected to way‑lay the returned candidates on their journey to the polling station, and it was even alleged that on the night preceding the polling, two Provincial Ministers were busy searching for them "through the street of Lyallpur." Hence the necessity of a police escort, but at the polling station, the returned candidates were not under any restraint, and in fact they freely mingled with the other candidates and persons present there. The petitioner was unable to produce any evidence to show that any coercion or threat or fraud of any kind was practised upon any of the returned candidates during the Frontier trip. Against the clear denials of any such treatment by each of the returned candidates, the only piece of evidence upon which the petitioner could rely was a statement made by his first witness Mehr Karim Bux, repeating an explanation ad for the result of the voting allegedly given to him by Ghulam Haider who is a relation of his. That explanation is in the following terms: "On my enquiry as to why he had backed out of the undertaking which he had given to the petitioner and his etc. group, he replied that Mr. Muhammad Zakir had cheated him on the pretext of going to Sial Sharif. He (Muhammad Zakir) had actually taken him to village Radhan in the District of Sargodha and had by inducement and threats persuaded him to vote in contravention of his undertaking with the petitioner, Mr. Ghulam Haider told me that Messrs Muhammad Saeed and Muhammad Zakir had assured him that Mr. Daultana and his party were bound to win the elections; that it was in his (Mr. Ghulam Haider's) personal knowledge that once Mr. Mumtaz Muhammad Khan Daultana had removed Col. Abid Hussain from the Chairmanship of the District Board and had instituted criminal proceedings against him; that Messrs Muhammad Saeed and Muhammad Zakir had definitely promised him that after the election they would get him (Mr. Ghulam Haider) appointed as a Parliamentary Secretary; that they and their party had taken him (Mr. Ghulam Haider) and Nawazish Ali to the Frontier and there they extracted solemn oath from him on Kalima Sharif that he would vote for them and that it would have been Kufr on his part if he had acted contrary to his oath." The Tribunal has not placed any reliance upon the evidence to show that some of the returned candidates were trapped into going on the journey, or as to the incident at Radhan. The statement as to the assurances given regarding the success of the Daultana party and the danger of victimisa tion if that party was not supported do not constitute allegations of corrupt practices. As regards the oath on the Kalima taken in the Frontier, that too has been found by the Tribunal to be unproved. Consequently, the evidence of Mehr Karim Bux reproduced above is of no assistance what soever to the petitioner in establishing his case against the clear denials of the returned candidates, made on solemn affirmation. As in regard to every other corrupt practice found by the Tribunal, their finding on this issue also appears to be based on no evidence at all. By a lengthy process of reasoning, the Tribunal appear to have satisfied themselves that they can safely base a conclusion that the corrupt practice was committed, upon a series of circumstances, which enable them to hold that the truth is the exact opposite of what is stated on the point by witnesses at the trial. It is impossible to conceive of circumstances in which an effort of this kind can ever be successful. The duty of the Tribunal was to decide on the evidence. Where the direct evidence is to the exact contrary of the allegation to be established, any circumstances going to support that allegation must indeed be of the very greatest weight in order to overbear the effect of the direct evidence. Here the circumstances found do not appear to possess this character at all. Dealing with each of them very briefly, I notice that the conclusion that Ghulam Haider and Nawazish Ali were definitely committed to the Shah Jewna group until the 27th of December 1955, is based upon certain evidence to the effect that they had promised support to that group, and certain other evidence to show that one or two lawyers had acted as election agents for the Shah Jewna group as well as for Ghulam Haider and Nawazish Ali, in regard to filing of nomination papers. From such behaviour, it is certainly not possible to conclude that there was a firm, much less an inviolable, connection between the Shah Jewna group and these two candidates. Belonging to the same district, and being interested in local as well as Provincial politics, it was natural that there should be associa tion among these persons. It is, in such an election, also natural to find promises being made freely while the true intention was either concealed, or had not yet been formed. Major Mubarik Ali Shah, a leading member of the Shah Jewna group, while stating that Ghulam Haider and Nawazish Ali had generally supported that group, admitted that there had been points of difference between them in political matters previously. It is also in the evidence of certain of the returned candidates that Ghulam Haider and Nawazish Ali, who appear to have been determined to remain faithful to each other had been alarmed by a rumour that the Shah Jewna group preferred an outsider by the name of Nazar Hussain Shah to Nawazish Ali as a candidate for the election, and from that time onwards, these two candidates thought that their interests were not safe in the hands of the Shah Jewna group. The Tribunal appear to .be satisfied that by the 13th January 1956, Ghulam Haider and Nawazish Ali had gone over to Muhammad Saeed's group. They appear, however, to have misdirected themselves when they conclude that this can only have been the result of some very strong inducement of pressure or deception. For the primary object of Ghulam Haider and Nawazish Ali being to get themselves elected, once a doubt developed in their minds regarding the chances of success if they remained with the Shah Jewna group, it was natural that they should turn to the opposite party, led by Muhammad Saeed, and for this purpose it is not necessary at all to suppose, as the Tribunal has done, that the commission of a corrupt practice was indispensable. In suppoing that the group led by Muhammad Saeed went to the Frontier to facilitate their purpose of applying undue influence to Ghulam Haider and Nawazish Ali, the Tribunal have not given the necessary weight to the explana tion furnished by the returned candidates from the very outset, that they did so in order to avoid extreme harassment from the army of agents and helpers whom the Shah Jewna group were capable of marshalling against them. The Tribunal have placed great emphasis upon the fact that the plan was concealed and that the journey was commenced at very short notice. They have regarded these circumstances as materially support ing their conclusion that a corrupt practice was committed, but they have ignored the plain fact that without conceal ment, the plan could never have succeeded at all. Had notice been given in advance to each member of the party that they were to commence their journey on a particular day, the likely result would have been that the intention would have become known to the opposite party, and the whole purpose of the plan would thereby have been betrayed. Much had been made of the visits to Sargodha and Lyall pur, and this has been done in the complete absence of any evidence to show that any special influence was brought to bear upon Ghulam Haider and Nawazish Ali at those places which have been described as Daultana strongholds. Indeed, the view taken by the Tribunal in this respect can only be appreciated if it be assumed that Messrs Ghulam Haider and Nawazish Ali were complete strangers to the political scene in the Punjab. If they came as innocents from abroad, no doubt an effort to impress them, or even to overbear their judgment, by taking them into the most important political camps maintained by a certain political leader might have been of value. But these are persons who had been members of the Punjab Legislative Assembly since 1951, and had had experience of working under the leadership of Mr. Daultana for several years. The personality of Mr. Daultana, his political influence, his principal lieutenants all over the province, and the influence of those lieutenants cannot be supposed to be matters outside the ken of Ghulam Haider and Nawa zish Ali. Therefore, it is idle to suggest that these two persons were taken to Sargodha and Lyallpur to impress them with the political power of Mr. Daultana. It is not suggested that at either of these places, there was any lack of persons of influence in the camp opposed to Mr. Daultana. It is stated that at each place one or more supporters of Mr. Daultana were met by the party, but this by itself cannot amount to proof of isolation of Ghulam Haider and Nawazish Ali from contact with persons of the opposite party. Although the party did not meet Khan Qurban Ali Khan in Peshawar, the Tribunal has held that the object of going there was to bring Ghulam Haider and Nawazish Ali face to face with Khan Qurban Ali Khan. The Tribunal appears to have thought that the same or similar influence was brought to bear upon Ghulam Haider and Nawazish Ali by introducing them to Mr. Justice Habibullah Khan and Inamullah Khan. What connection these two gentlemen had with Mr. Daultana's party does not appear on the record at all. They belong to the Frontier, which until a few months before this election had a separate political organisation from that of the Punjab. References to "very strategic moves" by Muhammad Saeed again appear to be very wide of the mark. When the Tribunal themselves admit that the Commissioner of Multan was asked to be present at Jhang on the polling day, and that special precautions were taken by the authorities, it is indeed strange that they should at the same time overlook the possibility that the returned candidates, who were the principal actors in the drama out of which the danager of violence, requiring special arrangements by the authorities, had arisen, should themselves have felt some little apprehension for their own safety. The explanation for Muhammad Saeed's precau tions put forward by the respondent namely that they were inspired by a feeling of danger did not impress the Tribunal at all. Since however the Tribunal were proceeding to the conclusion of guilt on the charge of undue influence, it was certainly their duty to take into account every reasonable hypothesis of innocence before coming to their conclusion. That is a settled principle of criminal jurisprudence where charges are sought to be established on purely circumstantial evidence. The fact that it was ignored by the Tribunal is greatly to be regretted. It led the Tribunal into making a number of observations highly unfavourable to Muhammad Saeed which would have been found entirely unnecessary and un desirable, had Tribunal taken a more balanced view of the case and of all the evidence and circumstances adduced at the trial, and had also consented to follow those principles applicable to the appraisement of such evidence and circum stances, which have been invariably adopted by all election petition tribunals in the past. Finally, as to the presence of the police at the polling station, the Tribunal have thought this to be an act of isolation with the aid of official influence, ignoring the fact placed before them by all the returned candidates and some of their witnesses that the presence of the police was needed for their personal safety. It was never alleged that through police influence, the returned candidates were obliged to vote in a particular way. It therefore falls to be said again, and with equal regret, that the finding on this issue also appears to have been reached in disregard of the relevant evidence on the record and through taking an exaggerated view of circumstances, which by themselves were very far from being sufficient to exclude every hypothesis of innocence, and certainly do not exclude the explanation which had been placed before the Tribunal by the principal respondents at the very outset of the case. The result of this examination thus is that each of the findings of guilty recorded by the Tribunal, in regard to allegations of corrupt practices is an erroneous finding, and must consequently be set aside. Upon these findings the Tribunal have named the six returned candidates as meriting disqualification, besides declaring that their election is void. The consequence of upsetting these findings necessarily is that the election of the returned candidates must be held not to be void, and it must also be held that each of them has been duly elected, and that none of them has earned any disqualification under the law. In allowing the appeal, in the terms stated above, I consider that the costs of the appellants should be allowed to them, against the respondent Mehr Muhammad Arif alone. MUHAMMAD SHARIF, J.‑

I agree and would only add that the so‑called report of the Election Petitions Tribunal, which fulfils all the requirements of the "judgment", of a Judicial Tribunal, did not proceed according to well‑recognised legal principles and its findings are in conflict with the evidence on the record. AMIRUDDIN AHMAD, J.‑

I agree that this appeal must be allowed for the reasons recorded in his observations by my Lord the Chief Justice and the judgment of the Court by my learned brother Cornelius, J. ORDER OF THE COURT (MADE ON 26TH FEBRUARY, 1957) BY THE COURT.‑

For reasons to be recorded later in our judgment, we allow this appeal, and direct‑ (1) that in place of the findings of guilty recorded by the Election Petitions Tribunal against the appellants Muhammad Saeed, Sher Muhammad Bharwana, Maulvi Muhammad Zakir, Nawazish Ali Khan and Mehr Muhammad Mohsin, as well as the respondent Ghulam Haider on charges of the corrupt practices of undue influence (issues 1 to 3), bribery (issue 4) and payment of expenses to electors for conveyance to the place of voting (issue 5) there shall be substituted in each case a finding of not guilty: (2) that in place of the finding of the Election Petitions Tribunal that the election as members of the Interim Legislature of West Pakistan on the 19th January 1957, of the aforesaid six persons, is void, there shall be substituted a finding that their election was not void, and that these persons have been duly elected as members of the said Legislature; (3) that no disqualifications as provided by the Government of India (Provincial Elections) (Corrupt Practices) and (Election Petitions) Order, 1936, has been incurred by any of the aforesaid six persons; (4) That the costs of the appeal which we assess at Rs. 4,000 (Rupees four thousand) only in a lump sum shall be borne by the respondent Mehr Muhammad Arif Khan, but the costs of the respondents shall be borne by those respondents themselves; (5) that the respondent Mehr Muhammad Arif Khan shall pay to the aforesaid six persons, namely Muhammad Saeed, Sher Muhammad Barwana, Maulvi Muhammad Zakir, Nawazish Ali Khan, Mehr Muhammad Mohsin and Ghulam Haider, in equal shares, the sum of Rupees one thousand, as costs of the election petition and should, at the same time, refund to these persons or any of them, any sum received from such person or persons by way of costs under the order of the Governor of West Pakistan, dated the 7th January 1957; and (6) that a copy of this Order and of our Judgment shall be sent to the Governor of West Pakistan, for taking necessary action, as provided by law, to give effect to the above directions. A.H. Appeal accepted.