1. FAZLE-AKBAR, J.-This appeal, by special leave, arises out of an election to the National Assembly from Constituency No. N. II, Peshawar-2, held in March 1965.
2. Among the five candidates who contested the said election, Mian Jamal Shah and Nasrullah Khan secured 252 and 240 votes, respectively. It is not necessary to mention the number of votes secured by the other candidates.
3. At the close of the polls the Presiding Officer while counting the votes found enfolded in the ballot papers cast in favour of Jamal Shah
(i) 12 one-rupee currency notes in 12 ballot papers ;
(ii) a half portion of five-rupee currency note in the ballot papers ;
(iii) an old pice coin with a hole in it in another ballot paper, and
(iv) 12 small chits bearing the writing "Bismillah-Hirrahman--Nirrahim" in 12 ballot papers.
4. A similar chit with the inscription "Bismillah-Hirrahman--Nirrahim" was also found in one of the ballot papers of another candidate, but it is not relevant for the decision of this case.
5. The Presiding Officer while preparing a statement as required under section 36 of the National and Provincial Assemblies (Elections) Act, 1964, herein-after referred to as the Act, detached the above foreign objects from the ballot papers and kept them separately in a sealed packet. The ballot papers were then placed before the Returning Officer in accordance with the provisions of section 38 of the Act. He while counting the votes excluded the following ballot papers which were in favour of Mian Jamal Shah:
(a) 14 ballot papers in which currency notes and one pice coin were enfolded, on the ground that the voters could be identified from the foreign articles enclosed in them ;
(b) two ballot papers on the ground that they did not bear the initial of the Presiding Officer; and
(c) three other ballot papers on the ground that they did not bear the prescribed mark.
6. Thus, the ballot. Papers in favour of Mian Jamal Shah were reduced from 252 to 233.
7. He also excluded three ballot papers in favour of Nasrullah Khan on the ground that they did not bear either seal or signature of the Presiding Officer. Thus, the votes cast in .His favour were reduced to 23 Y. This being the highest number of valid votes secured by any candidate, the Presiding Officer declared Nasrullah Khan as duly elected.
8. Both Mian Jamal Shah and Nasrullah Khan filed separate appeals against his order under section 53 of the Act and the Election Commission delegated its power in this behalf to one of its Members, namely, Justice Sardar Muhammad Iqbal, who heard the appeals. Each appeal succeeded in part, i.e., one additional vote was allowed to be valid in favour of Nasrullah Khan bringing his count to'
9. 238 and 16 additional votes were declared to be valid (namely 14 which contained currency notes and coin and '2 which did not contain initial of the Presiding Officer) in favour of Mian Jamal Shah and thus his total ballot rose to 249 and he was therefore declared duly elected. In coming to the above finding, the Member. Election Commission, declined to accept the contention that the votes carrying foreign matters should be excluded for bearing identifiable marks, because in his opinion, he was not competent to enter into the evidence to ascertain if this was due to any pre- arrangement: Nasrullah Khan then challenged the above order by filing a writ petition in the High Court under Art. 98 of the Constitution. A Full Bench of that Court which heard the said petition held that the Member of the Election Commission was in error in allowing as valid
(i) 12 ballot papers which contained the chits bearing the word "Bismillah-Hirrahman-Nirrahim";
(ii) 14 ballot papers which had currency notes and coin, enclosed in them; and
(iii) 2 ballot papers which bore official seal only but no signature of the Presiding Officer.
10. The learned Judges, therefore, quashed the order of the Member of the Election Commission and directed him to decide the appeal in accordance with law. In appeal against the order of the High Court, this Court held that the Member's order having been made with lawful authority, could not be reversed in writ jurisdiction.
11. It may be mentioned here that during pendency of the appeal of Jamal Shah in this Court Nasrullah Khan filed an election petition under section 57 of the Act before the Election Tribunal comprising three Members, challenging the election on the ground of corrupt practice and illegal acts. It was alleged also that "the foreign articles enclosed in the ballot papers are corroborative evidence of bribery." Jamal Shah opposed the said/ petition. The Tribunal was unable to place much reliance on the evidence adduced by the parties. Two of the Members, however, drew the following inference from the intrinsic evidence furnished by the foreign materials which were enfolded in the ballot papers :- "The number of the ballot papers in which foreign material was enfolded being 26 and. The nature of the marks being such from which the elector can be identified, the serial number in the case of currency notes and numerical in the case - of chits, little doubt is left that the foreign material was included with the chits by pre-arrangement as a device adopted by dishonest persons in order to disclose the identity of the electors to the candidate or his agent. The inclusion of the foreign material could not be innocent and it is a logical conclusion deducible from such conduct that the inclusion of the foreign material being a device mutually arranged for identification is corrupt and illegal practice."
12. Similarly, their finding as regards those ballot papers which contained the inscription "Bismillah- Hirrahman-Nirrahim" was as follows :--- "We cannot conceive of any reason for these numericals to be put on the chits included in the ballot papers and to be carefully camouflaged into the writing except that this had to be done under a pre-arranged plan with a view to disclose the identity of the votes to the candidate or his agent, the pre--arrangement being payment of money for the casting of votes which is an illegal act."
13. For the reasons stated above, they held that these corrupt and illegal practices in polling the 26 ballot papers were committed by or at the instance or in collusion with Jamal Shah or his agents.
14. They, therefore, excluded the said 26 ballot papers and thereby reduced the votes secured by Jamal Shah from 249 to 223. Furthermore, they 'found that Nasrullah Khan had secured 238 valid votes. Hence, Jamal Shah's election was set aside and in his place Nasrullah Khan was declared elected.
15. Jamal Shah then moved a writ petition in the High Court against the order of the Tribunal but the same was dismissed in limine. Hence, this appeal by Mian Jamal Shah.
16. The learned counsel for the appellant has attacked the findings of the Tribunal on three grounds, namely :-
(i) that the Tribunal had no jurisdiction to exclude objection--able ballot papers which has already been accepted by 'the Member of the Commission :
(ii) that the particulars of illegal and corrupt practice as given in the petition were not proved and as such the benefit of doubt should have been given to the appellant ; and
(iii) that, in any event, the findings with regard to the identity of voters and pre-arrangement are based on no evidence.
17. The first ground is fully covered by the decision of this Court in the case of Mian Jamal Shah v.
18. Member, Election Commission and others (PLD 1966 SC 1). My Lord the Chief Justice while dealing with an identical question observed :--- "In the present case, the question raised was as to whether ballot papers which included foreign objects should be excluded from the Count under section 38, subject to appeal under section 53, for that reason alone. The Member was of the view that that reason was not sufficient, for it was necessary to, produce evidence of a design behind the inclusion of such foreign objects, before they could be excluded. This clearly implied the requirement of proof of a corrupt practice or of an illegal act as indicated above. It was the view of the Member that he had no jurisdiction to enquire into these matters and further he has used expressions indicating that it was proper that such matters should be taken before an Election Tribunal under section 57. If it were found that the ballot papers in question were tainted by corrupt' practice or an illegal act, it would be for the Tribunal to exclude them for the purpose of their final decision. Thus, the power given to the Tribunal by section 73 of the Act would be attracted. Consequently, I am unable, speaking with respect, to support the conclusion of the Full Bench that the count of votes must be finalised under section 53 qua the jurisdiction of the Election Tribunal under the later provisions of the Act."
19. The learned Chief Justice then observed :- "With respect to the learned Judges, the division of jurisdic--petition between the Member under section 53 and the Election Tribunal, is not, in respect of the count intended to be so completely watertight as they have declared it to be. Reference to section 73 of the Act will show that counting of votes, that is exclusion of invalid votes and inclusion of valid votes which have been wrongly excluded, is not outside the purview of the Tribunal. Section 73 provides that when after the conclusion of the trial, it appears that there is an equality of votes between two or more contesting candidates, the Tribunal is to inform the Commissioner accordingly, who shall thereupon direct that a fresh poll shall be taken. This clearly implies that an inequality of votes has been reduced to an equality by inclusion of votes which should not have been rejected, and/or exclusion of votes which should not have been included, as a result of the Tribunal finding certain corrupt or illegal practices or illegal acts to have been committed."
20. We may here point out that in the above case Kaikaus, J: took a different view and the learned counsel has based his entire argument on his Lordship's observations. But, the majority view was that of my Lord the Chief Justice which we have quoted above. '
21. For the reasons given by my Lord the Chief Justice in the above case we hold that where a question of corrupt practice, illegal practice and illegal, acts arises, the only competent authority to adjudicate upon it is the Election Tribunal and that the exclusion of objectionable votes is also not outside the purview of the jurisdiction of the Tribunal. We are, therefore, unable to accept the contention of the learned counsel that the Tribunal had no jurisdiction to exclude the objectionable votes.
22. We now take 'up grounds Nos. 2 and 3, because they are inter-connected. These grounds raise the question whether the allegations of corrupt and illegal practice had been fully established before the Tribunal.
23. At the outset, we may observe that exclusive nature of the jurisdiction given by the Constitution and the laws thereunder in respect of election disputes has not been challenged before us. Hence, the first question would be : Whether the jurisdiction of the High Court derived from Art. 98 of the Constitution could be attracted to such a case as the present one.
24. The learned counsel has argued that the findings that the foreign objects were inserted as a means of identifying, to person interested and in a manner contrary to the requirement of secrecy in an election, that certain person had voted in a particular way and that some of the voters had cast their votes in a manner so as to reveal their identity, were based on no evidence and as such this error of law could be corrected in certiorari. He has further argued that the Tribunal having disbelieved the oral evidence, was not justified in basing its conclusion on surmises and conjectures.
25. To what extent the order of an Election Tribunal could be challenged under Art. 98, has been fully discussed in Mian Jamal Shah's case. The learned Chief Justice after discussing numerous authorities observed :- "Anything in the nature of the exercise of a full scale appellate jurisdiction must be rigorously avoided by the High ' Court, for that would be to override the requirement of the Constitution that the power under Art. 98 should be exercised so to give full effect to the terms of such a provision as that contained in Article 171."
26. Article 171 (Of the Constitution places election disputes within the exclusive and final jurisdiction of the designated authority and the High Court therefore while exercising its power under Art. 98 must keep in view the above: provisions of the Constitution.
27. The learned Chief Justice has summed up his conclusion thus '.
28. "The learned Judges went on to say that the expression `lawful authority' under Article 98 has a wider significance than the word `jurisdiction', on the basis that it embraces authorities other than Courts, and. To that extent their view is probably correct, although it is not germane to the decision of the question before them. Yet, it is necessary to record a caution with respect to the interpretation of the expression "without lawful authority" namely, that the authority conferred by the relevant law is not to be compressed or confined, for the purpose of the exercise of power under Article 98, but it is only after the terms used in the relevant law have been given their full effect., for ascertaining the authority thereby conferred, that anything done beyond or in excess of that authority may be brought within the power of avoidance vested in the High Court."
29. The fact that a Tribunal while determining validity or invalidity of an election exercises judicial function has not been disputed before us. If any authority is needed for this proposition, it will be found in the decision of this Court in 'Muhammad Saeed and others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak.) 91) It may, therefore, be said that if the finding of the Tribunal is based on no evidence then the action of the- Tribunal may be characterized as one "without lawful authority". Hence, the question is whether there were sufficient materials before the Tribunal upon which it could arrive at a conclusion that it did in this case. In other words, whether on the facts and circumstances of the case, a finding of corrupt practice could be safely drawn.
30. With regard to currency notes, the findings of the Tribunal were as follows :- "In the case of currency notes there is a serial number on each one of them, which can be noted down at the time of its passing and the identity of -the voter can be discovered by comparison of the serial number. Its inclusion in a ballot paper can serve no useful purpose except to indicate to the candidate or his polling agent that the ballot paper has been polled by a particular elector. The elector would include a currency note in a ballot paper by design with a view to disclose his identity to the candidate which is a case of bribery or corrupt practice. Neither in the case of these currency notes, nor in the case of chits bearing the inscription and numericals has any explanation been offered on behalf of the respondent, for the inclusion of foreign material in such large numbers or the nature of marks, when they have been found it so many of his ballot papers."
31. They then dealt with the chits thus :- "The 12 chits bearing the inscription ---Bismillah Arrehman nerraheem--- contain most damaging evidence in the numericals which these chits bear. The Returning Officer was struck by the similarity of handwriting and ink on the white papers on which these words were written and he found it safe to assume that they were distributed by one party, but we cannot assume that they are in the same hand. We must observe, however, that the inclusion, of these chits was wholly uncalled for and no ostensible reason exists for their inclusion other than the one of disclosing the identity of the elector to the candidate or his agent by pre-arrangement. When we carefully examined the chits we found that each of these chits had a numerical. This numerical could only have been put in before, the issue of chits to the electors under a pre-arranged design so that it is known to the candidate or his agent whether they have voted for the candidate or not. These numericals were carefully camouflaged into the words ---Bismillah Arrehman nerraheem--- with a view .To avoid detection by a casual eye, which supports the inference of pre-arrangement and design. The chits show that they bear numericals as follows :-- "Exh. P. W. 5/2No. 40 or 41 Exh. P. W. 5/3No. 10 Exh. P. W. 5/4No. 21 Exh. P.W. 5/5No. 8 Exh. P. W. 5/6No. 22 or 32 Exh. P. W. 5/7No. 1 Exh. P. W. 5/8No. 47 Exh. P: W. 5/9No. 27 or 21 Exh. P. W. 5/10No. 4 or 5 Exh. P. W. 5/ 11No. 41 a Exh. P. W. 5/12No. 12 Exh. P. W. 5/13No. 3 below Bismillah Exh. P. W. 5/14No. 3 above Allah."
32. Thus, the Tribunal has given cogent reasons for drawing an inference that the foreign objects were inserted as a result of pre-arrangement in order to indicate for whom the elector was voting.
33. Furthermore, the numericals in the chits containing the inscription "Bismillah-Hirrahman-Nirrahim" could be regarded as sufficient material upon which the voter might be identified.
34. From the above it is abundantly clear that the Tribunal was justified in coming to the conclusion that it did on the materials before it and as such its decision was not susceptible of interference in writ jurisdiction. Lastly, we may mention that, no objection as to particulars was taken at any stage before the Tribunal. The appellant fully knew of the allegations that he had to meet and as such he cannot be permitted to make any grievance as to the insufficiency of the particulars. We, therefore, see no good ground for interference with the order of the Tribunal. In our opinion, the High Court was justified- in dismissing the writ petition in limine.
35. This appeal is accordingly dismissed with costs.