1. MUHAMMAD YAQUB ALI, J.-This is an appeal from the order passed by the High Court of Punjab on the 5 of June 1972, dismissing Writ Petition No. 680 of 1972 in limine filed by Rahim Shah, appellant herein, for quashing the order passed by the Chief Election Commissioner on the 3rd May 1972, whereby he was disqualified from continuing as a Member of the National Assembly and his seat was declared vacant.
2. Sher Muhammad, respondent No. 2, who was defeated by the appellant in the election to National Assembly from Con--stituency No. N. W. 16/Swat-1, laid before the Chief Election Commissioner a complaint on the 17th November 1971., alleging that the appellant had entered into a contract with the Govern--ment of N.-W. F. P. For the supply of and spreading shingle oil mile 1l1 from Daggar village to Daggar Tehsil, District Swat, and on completion of the contract had received payment of Rs. 3,593 by means of two cheques drawn in his favour. This was in contravention of Article 9(2)(h) of the Legal Framework Order which provided that "a person shall be disqualified from being elected as, and from being. a member if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods to, or for the execution of any contract or the performance of any services undertaken by, Government". Along with the complaint respondent No. 2 filed a copy of the contract dated 12-6-1971: entered into by Anwar .All Shah, son of theth appellant, and copies of documents showing payment of the sum of Rs. 3,593 to Rahimshah Lala & Sons under which name the appellant carried on business as sole proprietor.
3. Notice of the complaint was served on the appellant on 11-3-1.972. 13e put in appearance on 10-4- 197 2 and obtained adjournment from the Chief Election Commissioner to file a written statement.
4. On the 1lth April 1972, the appellant filed written statement denying that he had entered into a contract with the Government of N.W. F. P. Or that he had any interest or benefit in the said contract.
5. It was further averred that the contract was entered into by his son Anwar A.I Shah on his own account and that the name Rahimshah Lala & Sons, a contractor, had crept in erroneously in the Agreement. In tact, in the application for registration of his name as a contractor, Anwar A.I Shah had given his address care of Rahimshah Lala & Sons. On the completion of the contract, the Executive Engineer gave to Anwar A.I Shah two cheques in the sums of Rs. 3,305 and Rs. 288 which were drawn in favour of Rahimshah Lala & Sons. As the cheques were payable into the payee's account only, they were deposited in the account of the appellant, but on the same day the appellant gave him two cheques for similar amounts which were duly cashed by his bank. Along with the written statement, the appellant filed copies of documents showing that he had no personal interest in the contract in question and that the proceeds of the two cheques in the sums of Rs. 3,305 and Rs. 288 were paid to his son Anwar A.I Shah by the Habib Bank on the very day these cheques were deposited in his account. An affidavit was filed along with the written statement affirming that the appellant had no interest in the contract on the basis of which respondent No. 2 had lodged the complaint against him.
6. After the written statement was filed, the Chief Election Commissioner straightaway proceeded to hear arguments of the parties' counsel and reserved the judgment. An opportunity was given to the counsel to file citations of we decided cases on which they had relied in their address. On the 3rd of May 1972, the Chief Election Commissioner passed the impugned order declaring that Anwar A.I Shah who entered into contract with the N.W. F. P. Government had acted as an agent or Benamdar of the appellant and had thereby subsequent to his election to the National Assembly become disqualified front continuing as a Member of the said Assembly and his seat had fallen vacant.
7. Aggrieved by the order of the Chief Election Commissioner, the appellant filed a writ petition in the High Court under Article 201 of the Interim Constitution of 1972. In support of the writ petition it was urged firstly that under Article 76(3) of the Interim Constitution which had come into force on the 21st April 1972. The complaint lodged by the respondent No. 2 had abated as after the commencing day only the Speaker of the National Assembly could refer to the Chief Election Com--missioner the question whether a Member has become disqualified to continue as a Member. Secondly, that as the appellant had allegedly entered into a contract with the Government of N. N. F. P., the disqualification enumerated in Article 9(2)(h) of the Legal Framework Order was not attracted as the appellant was the Member of the National Assembly and he would be disqualified only if he had entered into a contract with the Central Government. Thirdly, that proper opportunity was not given to the appellant to adduce evidence in order to prove that he had no interest or benefit in the contract which was entered into by his son Anwar A.I Shah and who alone had executed the contract and obtained benefit there under.
8. The learned Judge overruled all the three grounds and dismissed the writ petition in limine as mentioned in the beginning of this order. It was held that Article 76(3) was not applicable to tile case as Article 295 saved all pending proceedings. The contention that a Member of the National Assembly will be disqualified only if he enters into a contract with the Central Government was ruled out as the word `Government' used in Article 9(2)(h) applies equally to the Provincial and Central Government. The third ground was turned down on the view that it raised only a question of fact.
9. Leave to appeal was granted on 1st September 1972, to consider whether the finding of the Chief Election Commissioner that the appellant's son had entered into a contract as an agent or benamdar ofthe appellant was based on any evidence.
10. "235. Before he enters upon his office, a Commissioner shall make before the Chief Justice of Pakistan an oath in such form set out in the Second Schedule as is applicable to his office.
(3) Where, under this Constitution, a person is required to make an oath before he enters upon an office, he shall be deemed to have entered upon the office on the day on which he makes the oath."
11. There is a fallacy in the argument raised by Mr. Ghias. Muhammad. The Chief Election Commissioner had already entered upon office when the Interim Constitution came into force on the 21st of April 1972. His case was covered by Article 285(4) of the Constitution which provides that "Any person who, under this Article, is continued in an office in respect of which a form of oath is set out in the Second Schedule shall, as soon as is practicable after the commencing day, make before the appropriate person an oath in that form." As this controversy was not raised in the High Court, it was not possible to pronounce whether the Chief Election Commissioner could have taken oath before the 3rd of May 1972, or not.
12. It was next contended by Mr. Ghias Muhammad that in the complaint lodged by respondent No. 2 it was alleged that the appellant had entered into a contract with the Government of N. W. F. P. And thereby incurred the disqualification under Article 9(2)(h) of the Legal Framework Order. The same allegation was set out in the notice served upon him by the Chief Election Commissioner. The allegation was disproved by the documents filed by the parties which showed that the contract was entered into by Anwar A.I Shah son of the appellant and that he was the sole-beneficiary under the contract. The Chief Election Commissioner did not hold that the appellant had entered into the contract, but found that Anwar A.I Shah had acted as an agent or benamdar of the appellant and thereby the appellant was disqualified from continuing as a Member of the National Assembly. The appellant had thus no notice of tae ground on which the adverse decision was given against hire by the Chief Election Commissioner. This was a serious lacuna in the proceedings which vitiated the order passed by the Chief Election Commissioner disqualifying the appellant on a ground. Other than the ground mentioned in the notice issued on the com--plaint filed by the respondent No. 2.
13. It was also urged with considerable force that the Chief Election Commissioner had not followed the norms of judicial procedure in arriving at the conclusion that the appellant was disqualified from continuing as a Member of the National Assembly and that his seat had become vacant on account of his son entering into a contract with the Government of North --West Frontier Province as his agent or Benamdar. According to the learned counsel in the absence of any procedure laid down in Article 9(49) of the Legal Framework Order it was incumbent on the Chief Election Commissioner to follow the procedure laid down in the Civil Procedure Code or at least to follow a judicial procedure which will enable the parties to know on what points they are at issue and to lead evidence in support of their respective claims.
14. PLD 1966 SC 1).
15. We have carefully examined the case Nat Bell Liquors Limited. It is certainly not an authority for the proposition that a writ of certiorari is confined only to question of jurisdic--petition viz., to inquire whether an inferior tribunal or a Magistrate has the jurisdiction to try a charge and that a conviction by a Magistrate cannot be quashed on the ground that there was no evidence to support the conviction or that the Magistrate has misdirected himself in considering the evidence.
16. Evidence was, in fact, led by the prosecution in that case on which the conviction was based. The learned Judges of the Supreme Court of Alberta had ruled out this evidence on the ground that it consisted of the sole testimony of an accessory before the fact and was uncorroborated. The learned Judges had further held' that want of sufficient evidence makes the conviction one pronounced without jurisdiction and that such want of evidence can be established by evidence dehors.
17. Dealing with these remarks Lord Sumner observed: "On certiorari, so far as the presence or absence of evidence becomes material the question can at most be whether any evidence at all was given on the essential point referred to and that its weight is entirely for the inferior Court. Reference was made in, support of this statement to the observations of Lord Kenyon in, Rex v. Smith (1800) 8 T R 588), "and tile Magistrate who convicted the defendant had drawn his conclusion from that evidence, we would not have examined the propriety of his conclusion; for the Magistrate is the sole Judge of the weight of the evidence. And for this reason I think there is no foundation for the first objection. There was some evidence from which he might draw the conclusion". The majority of Judges of the Supreme Court of Alberta had accepted this principle, but thought that it might be met by inquiring whether the justices had misdirected themselves as to the law of evidence cinder which term they included a failure to give support or any weight to features in the evidence which appeared to them to be of preponderating importance. Noticing these remarks Lord Sumner said: "It may well be that error as to the law of evidence like any other error of law if it is apparent on the record is a ground for quashing the order made below, but none of the objections taken here show that the Magistrate acted under any mis--apprehension of the law". Lord Sumner then referred to a number of decisions of Canadian Courts in which a different view was expressed "though not without much difference of opinion". These decisions go on to hold that although in general the credibility and weight of the evidence is for the Magistrate, the superior Courts can as a matter of law consider whether he guided himself by a right view of the credibility of particular evidence.
18. There were other cases Rex v. Smith, Rex v. Crisp ((1806) 7 East 389), Rex v. Chandler ((1811) 14 East 267), Ex parts: Vaughan ((1866) L R 2 Q B 114) and Lovesy v. Stallard ((1874) 30 L T 792), in which it as held that, "If, on some part of the case, which was material to the charge and had to be legitimately established before the accused person could be convicted, no evidence was coming at all, this would be error of law, which being duly brought to the notice of the superior Court would oblige it to quash the conviction".
19. Ruling out the plea that a justice who convicts without evidence is acting without jurisdiction to do so and that want of essential evidence if ascertained somehow is on the same footing as want of qualification in a Magistrate, Lord Sumner observed: "This is clearly erroneous" and gave the following reasons in support of his opinion: "A justice who convicts without evidence is doing something that he ought not to do, but he is doing it as a Judge, and it his jurisdiction to entertain the charge is not open to i1nPeach--ment, his subsequent error, however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not. How a Magistrate, who has acted within his jurisdiction up to the point at which the missing evidence should have been, but was not, given, can, thereafter, be said by a kind of relation back to have had no jurisdiction over the charge at all, it is hard to see. It cannot be said that his conviction is void, and may be disregarded as a nullity, or that the whole proceeding was coram non judice. To say that there is no jurisdiction to convict without evidence is the same thing as saying that then: is jurisdiction if the decision is right, and none if it is wrong; or that jurisdic--petition at the outset of a case continues so long as the decision stands but that, if it is set aside, the real conclusion is that there never was any jurisdiction at all."
20. The judgment cited on this point is Ex parte: Hopwood (1850) 15 Q B 121). In that case certiorari having been taken away by statute, the Court could only interfere if the justice had convicted without any jurisdiction at all. 1t was alleged, on affidavit, that on the particular summons in question, they had no evidence before them, even of the service of the summons. The Court held that even so the fact did not take away jurisdiction.
21. The observations of Lord Sumner on which Mr. Maqbul Elahi relied were thus relatable to cases in which certiorari is taken away by statute and the Court could only interfere if the tribunal or an authority acting in a quasi-judicial capacity has convicted without having any jurisdiction at all.
22. The remarks in the judgment delivered by Lord Sumner on which Mr. Maqbul Elahi relied does no longer hold the field in England. In the case of Northumberland Compensation Appeal Tribunal (1952) 1 All E R. 122), Denning L. J., observed that certiorari provides a supervisory control that extends not only to see that the inferior tribunals keep within their jurisdiction, but also to see that they observe law. In the case of Patents Appeal Ttibunals (1957) 1 All E R 227), Lord Goddard, L. C. J.
23. Remarked that it is clear that certiorari will lie to the tribunal if the tribunal exceeds its jurisdiction and equally C if the tribunal gives a decision which the Court considers to be bad fin the face of the record.
24. "English cases abundantly show that the Judges have "provided scope" in all possible matters requiring adjudication of some sort, where rights and duties are affected, and that they have narrowed down the ample girth of administrative functions to purely ministerial acts. In the words of Mahajan. J., Province of Bombay v. Advani (1950 SCR 621) the jurisdiction to issue writs of certiorari "varies according to the foot of the Chancellor". We would say with respect that it varies with the foot of the High Court, which grows in length with the growing conferment of quasi-judicial functions on administrative bodies."
25. The Law in Pakistan is different. Section 223-A added by the 1954-Amendment of the Government of India Act, 1935, conferred on the High Court's jurisdiction "to issue to any person or authority including in appropriate cases any Government within these territories writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them".
26. Article 170 of the 1956-Constitution widened the jurisdiction of the High Courts to issue writs by providing: "Notwithstanding anything in Article 22, each High Court, shall have powers, throughout the territories in relation to-- which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by---Part II and for any other purpose."
27. The 1962-Constitution removed most of the fetters on the: exercise of writ jurisdiction by superior Courts by providing in Article 98: "(2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided by law- (a)on the application of any h aggrieved party, make an-error
(i) directing a person performing in the Province functions in connection with the affairs of the Centre, the Province or, a local authority to refrain from doing that which he is not permitted by law to do, or to do that which he is required by law to do; or
(ii) declaring that any act done or proceeding taken in the-- Province by a person performing functions in connection with the affairs of the Centre, the Province or a local authority has --been done or taken without lawful authority, and is of no-- legal effect . . . . ."
28. The 1972-Interim Constitution under which the appellant filed the writ in the High Court has conferred identical jurisdiction on the High Courts.
29. Under Article 201 certiorari will issue to any person performing in the Province functions in connection with the affairs of the Centre, Province or Local authority. It is not necessary that the `person' acts in a judicial or quasi-judicial capacity. High Court will interfere if the act done or the proceedings undertaken is in violation of law or any established principle of law. The term 'law' is not confined to `statute' and in holding the inquiry the superior Courts are not restricted to an examination of record of the case. The Court may even record evidence to determine the legality of the act done or the proceedings undertaken.
30. Mian Jamal Shah's case on which Mr. Maqbul Elahi relied is also of no help to him. Article 171 of the 1962--Constitution by which that case was governed provided that no dispute arising in connection with an election shall be decided otherwise than under a law to be enacted by the National Assembly and the validity of an election will not be called in question except in accordance with such a law. Under this mandate the National Assembly had passed the National and Provincial Assemblies (Elections) Act VII of 1964. A dispute arose in that case about the validity of certain number of ballot papers A Member of the Election Commission set aside the order of the Returning Officer who had rejected certain number of ballot papers polled in favour of Mian Jamal Shah and declared his rival candidate Khan Nasrullah Khan who had polled lesser votes as duly elected. A writ petition was filed In the High Court under Article 98 which was allowed by a Division Bench of the erstwhile High Court of West Pakistan, Lahore Seat, and the order of the Member was set aside. An appeal was preferred from the decision of the High Court to this Court. On the Interpretation of Article 171 and the relevant provisions of the National and Provincial Assemblies Act, the judgment and order of the High Court were set aside on the finding that it had no jurisdiction to interfere with the decision of the Election Commission. In arriving at this conclusion the Court formed the view that as the writ jurisdiction conferred on the High Court under Article 98 was "subject to this Constitution" Article 171 excluded the jurisdiction of the High Court to enter upon an election dispute. It was further held that Mian Jamal Shah could challenge the correctness of the decision of the Member of the Election Commission in an election petition before a Tribunal provided for in the National and Provincial Assemblies Act, 1964. But after the dispute is adjudicated upon by the Tribunal, the aggrieved party can bring it before the High Court for quashment if it suffers from an illegality. In the case under consideration the Election Commission had set aside the order of the Returning Officer and declared Mian Jamal Shah as duly elected. This order was maintained by this Court as mentioned above. In the meantime Nasarullah Khan had filed an election petition which was accepted by the Tribunal and as a result of excluding involved ballot papers cast to favour of Mian Jamal Shah, Nasarullah Khan was declared elected. A writ peti-- petition filed by Mian Jamal Shah was dismissed by they High Court on merits. The order passed by tire High Court was maintained by this Court and Civil Appeal No. 6 of 1968 filed by Mian Jamal Shah was dismissed on 17 April 1968.
31. It may be further observed that although the conditions for grant of certiorari which obtain in English Courts do not apply to High Courts in Pakistan at the same time the extent of this constitutional jurisdiction cannot be enlarged to an appeal on facts or questions of law. An appeal is a creation of statute and if no appeal is provided by the Legislature the determination of a tribunal of exclusive jurisdiction is final. The scope of interference in the High Court it therefore limited to the inquiry whether the tribunal has in doing the apt or undertaking the proceedings acted in accordance with law. If the answer be in the affirmative the High Court will stay its hands and will not substitute its own findings for the findings record by the tribunal. Cases of no evidence, bad faith, misdirection or failure to follows judicial procedure, etc. Are treated as acts done without lawful authority and vitiate the act done or proceedings under--taken by the tribunal on this ground. Where the High Court is of opinion that there is no evidence proper to be considered by the inferior tribunal in support of some point material to the conviction or order, certiorari will be granted.
32. Having concluded thus let us now examine if the impugned order is, without lawful authority for tire reason that in arriving at the conclusion that the appellant had after his election to the Nationalth Assembly become disqualified to continue as a Member, the Chief Election Commissioner had omitted to follow the norms of judicial procedure.
33. The procedure followed by the Chief Election Commissioner has been set out earlier. The principal defect in the proceedings is that the appellant was not put on notice that in entering upon the contract his son Anwar A.I Shah had acted as his agent or Benamdar. Nor were the parties given an opportunity to adduce evidence. At page 368 of Maxwell on Interpretation of Statutes (Ninth Edition) the rule is stated thus: "In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silently implying when it does expressly provide the condition or qualification that the power is to be exercised in accordance with the fundamental rules of judicial procedure such fur an instance that which requires that before its exercise the person sought to be prejudicially affected shall have an opportunity of defending himself. Another rule stated at pages 129-130 is: "Whereas in a multitude of Act . . . . . Intended by Legislative"-(PLD 1956 Lah. 639).
34. PLD 1961 SC 537) the appellants' registration as importers and exporters were suspended without stating reasons and without granting an opportunity to be heard. It was held that the order was vitiated being violative of principle of natural justice that no man should be condemned unheard.
35. Reference in this behalf was made to the decisions in Cooper v. Wands worth Board of Works (143 E R 414). Bruthen v. Vestry of St. George's Hanover Square (1871LR 13), Smith v. R. (3AC624), Hopkins v.
36. Smithwick Local Board of Health ((1890) 24 QBD 712), Board of Education v. Rice (1911AC182), R. Of Electricity Commissioners (1911AC182) and Smith v. The Queen (1878) 3 A C 614). Cases in which a departure was made from this rule Franklin v. Minister of Town and Country Planning (1948AC87) and Nakhuda A.I v. Javratne (PLD 1951PC102) were disapproved by S. A. Rahman, J. It was remarked: "With all respect, it seems to me that the judicial pendulum has swung to the extreme in Franklin and Nakhuda .A.I 's cases, but it is pertinent to note that the Privy Council itself in a previous case reported as Smith v. The Queen rested their decision to relieve against the order of forfeiture of a land lease, apparently as an administrative act, on what they describe as "broader grounds" embodied in the following observations as page 625 of the report. It appears to them that the defendant has not been heard in the sense in which ---a hearing--- has been used in the cases which have been quoted in many others and in the sense required by the elementary principles of natural justice. Tire Commissioner doubtless acted with perfect good faith, but apparently without being aware that he was performing a judicial function, or even a function of a judicial nature".
37. PLD 1964 SC 673) the Provincial Governments of East Pakistan and West Pakistan had by separate orders declared Jamaat-i-Islami an unlawful association under section 16 of the Criminal Law Amendment Act XIV of 1908. No notice was given to the Jamaat either before or after these orders were made. It was held that the orders were vitiated being violative of the principles of natural justice that no man shall be condemned unheard. In support of this decision Cornelius. C. J. Cited the cases of Ex parte: Ramshay (1852) 18 Q B 173) and Osgood v. Nelson (L R 1972 A C 636).
38. It is unnecessary to multiply decisions on the point that in doing an act or undertaking a proceeding affecting the person, property or other vested rights of citizens, the tribunal or authority below must act judicially. As observed in Halsbury, Vol. XI, page 57, the duty to act judicially may arise in widely differing circumstances which it would be impossible to attempt to define exhaustively. The question must be decided in each G case in the light of the circumstances of the particular case and the construction of the particular statute. In the present case the proceedings were initiated by a written complaint in which ft was alleged that the appellant had become disqualified to continue as a Member of the National Assembly as he has entered into a contract with the Government of North-West Frontier Province for supply of goods. A notice was issued to the appellant and he filed a written statement denying the allegations. The procedure adopted so far was proper. There--after the Chief Election Commissioner proceeded to deal with the case without settling the issues and granting an opportunity to the parties to adduce evidence. This was a clear negation of judicial procedure and vitiated the order passed by the Chief Election Commissioner. The appellant bad no notice of the ground on which the order adverse to him was passed. Prima facie he did not enter into a contract with the Provincial Government, but it was held that his son who entered into the contract had acted as his agent or benamdar. It was a mixed question of tact and law whether Anwar A.I Shah had acted as an agent of the appellant. In that case it was necessary 3o prove that the benefit under the contract was received by appellant.
39. Such a question could not be disposed of on mere perusal of pleadings and the documents placed on the record. It was, therefore, of utmost necessity that issues were settled and the parties given an opportunity to adduce evidence. The order passed by the Chief Election Commissioner in the aforesaid manner was, therefore, vitiated as without lawful authority.
40. Accordingly we allow the appeal and set aside the order of the Chief Election Commissioner dated the 3rd May 1972, whereby he declared that the appellant has since his election to the National Assembly from Constituency No. NW 16/Swat-1 became disqualified to continue as a Member of the said Assembly and that his Seat has fallen vacant.
41. The case will now go back to the Chief Election Commis--sioner for fresh decision in accordance with law. Parties are left to bear their own costs of these proceedings.
…and 63 more citing cases