TUFAIL ALI A. REHMAN, C. J.----These four Miscellaneous Appeals are all directed against orders of the Election Tribunal, Sind & Baluchistan, constituted under the National and Provincial Assemblies (Elections) Ordinance, X111 of 1970 while the two Constitutional Petitions also challenge the legality of petitions pending before the same tribunal. In each of the appeals, with the exception of Miscellaneous Appeal 57 of 1972, the order sought to be appealed against an order refusing an application to dismiss the petition without trial on the ground that by reason of violation of certain provisions of the Ordinance, they were, under the Ordinance itself, liable to be dismissed without trial. In the case of the Miscellaneous Appeal No. 57 of 1972 the order is one of refusal to adjourn the trial of the petition to enable the appellant to produce certain evidence. We found it convenient to hear these matters together because the first question that arose in the Miscellaneous Appeals was whether they were at all maintainable under the statute. It would be obvious that, if they were held to be maintainable, then the Constitutional Petitions could not be inasmuch as obviously an alternate remedy existed but, in the case of the Constitutional Petitions, the question also arises whether, even if that bar to the maintainability of the petition is not in the way of the petitioners, a petition of this kind at an interlocutory stage was permissible or at any rate should, as a matter of discretion, he heard at all. Consequently we decided to hear counsel upon these questions as preliminary questions in the matters intending to proceed further in the matter if we came to the conclusion that they were maintainable. After hearing counsel on both sides, however, we conferred between ourselves and decided that none of the miscellaneous appeal were maintainable and also that the constitutional petitions were not such as to justify our interference, at any rate at this: stage of the proceedings, and, therefore, announced our decision to that effect without going into the merits of the matter further. This decision was announced about one hour after we had finished hearing arguments in the matter and we stated that we would record our reasons later. The present is intended to be a statement of my reasons for following this course.
2. The right to appeal from decisions of Tribunal arises, admittedly, from and only from section. 64
(3) of the Ordinance and the entire section. Reads that:- ---64. Decision of the Tribunal-(1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order-
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void ;
(c) delaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in subsection (3), the decision of a Tribunal as an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908 and the decision of the High Court on such appeal shall be final, and shall not be subject to appeal to the Supreme Court. Every such appeal shall be heard by a Division Bench of the Judges of the Court."
It will be noticed that the word "decision" where it first occurs in sub--section (3) is not expressly qualified and the question, therefore, in the main, turns upon an interpretation of this subsection that is, whether it permits an appeal against all and any decisions of the Tribunal or only such decisions as are mentioned in subsection (1) of the same section. In effect, therefore, the maintainability of these appeals is dependent entirely upon the width of the meaning to be assigned to the word "decision" in section 64 (3).
3. So far as the -constitutional petitions are concerned they lie and have indeed been preferred under Article 201 of the Interim Constitution and, both in that Article and in the corresponding Article 199 of the permanent Constitution, a condition for the exercise of the jurisdiction by this Court is that it should be "satisfied that no other adequate remedy is provided by law". Clearly, therefore, if the miscellaneous appeals are held to be maintainable the constitutional petitions must be dismissed upon this ground alone, namely, that another adequate remedy is provided by law. If, however, it be held that the miscellaneous appeals are not maintainable then that particular bar to our jurisdiction is undoubtedly no answer to the petitioners but then the questions that would arise are whether, even if we agree with the petitioners in the constitutional petitions, the matters come within either sub-clause (1) or sub-clause (2) of clause (a) of the sub-Article of Article 199 which confers the jurisdiction in. Question. The second question would be whether as a matter of discretion it would be right for us to interfere at this stage of the matter.
4. Although we have not gone into the merits of the case it would be convenient briefly to state what the complaint is in each of these matters before going on to deal with the questions of law upon which our decision rests. The appellant/petitioner in each of these appeals and petitions was the successful candidate in the election in question and in each case respondent No. 1 is the person who filed a petition before the Election Tribunal challenging the validity of the election of the appellant/petitioner.
5. In Miscellaneous Appeal 30/72 which relates to the Constituency P$-5-Sukkur II to the Provincial Assembly of Sind an application Was made to the Tribunal asking it to dismiss the petition on the ground that it violated section 52 of the Ordinance inasmuch as it did not contain such a statement of the material facts or full particulars of the corrupt or illegal practices or illegal acts alleged to have been committed as are required by section 52. In order to appreciate the contention it will be convenient to reproduce sections 52 and 60 of the Ordinance which read thus: "52. Contents of petition.-(l) Every election petition shall contain---
(a) a precise statement of the material facts on which the petitioner relies ;
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act ; and
(c) the relief claimed by the petitioner.
(2) A petitioner may claim as relief any of the following declarations, namely-
(a) that the election of the returned candidate is void;
(b) that the election of the returned candidate is void and that the petitioner or some other person has been duly elected ; or
(c) that the election as a whole is void.
(3) Every election petition and every schedule or annex to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings.
60. Dismissal of petition during trial.-(1) The Tribunal shall dismiss an election petition, if-
(a) the provisions of section 51 or section 52 have not been complied with; or
(b) the petitioner fails to make the further deposit required undex subsection (4) of section 59."
By an order dated the 24th December 1971 the Tribunal dismissed this application holding that it was not feasible to decide the question; in effect the order holds that it is not apparent that section 52 has been violated but that, if it should become apparent at any subsequent stage of the case; the Tribunal had power to dismiss it even then. Although the application was dismissed the Tribunal, after the written statement had been filed, included among the issues to be decided the following issue: "Does the election petition contain full particulars of corrupt and illegal practices as well as illegal acts alleged in the petition as required by section 52 of the National and Provincial Assemblies (Elections) Ordinance, 1970? If not, is the election petition liable to tar dismissed under section 60 of the said Ordinance?"
It will be seen, therefore, that although the Tribunal did not consider, oil the material before it, that a case had been made out for a dismissal of the petition under section 60 it did not finally decide that matter, not only treating it as an issue to be decided in the main judgment which would follow at the end of the trial of the petition, but also reserving to itself the power to dismiss it at any earlier stage if it should become clear that section 52 had indeed been violated.
6. Miscellaneous Appeal No. 52/72 relates to the Constituency NW-108. Jacobabad to the National Assembly of Pakistan and in this case too an application of a similar kind was made asking that the petition be dismissed on the 1st December 1971, and a subsequent application prayed that "the petition or part of it is liable to be dismissed summarily" and that the issue for this be tried as a preliminary issue. By an order dated the 19th of may 1972 the Tribunal held that the allegations were in fact precise and that section 52 was not violated but, among the issues that he framed, was the following: "Whether the allegations contained in the election petition are vague and full particulars not given as required by section 52 (b) of the Ordinance X111 of 1970? If so, whether the election petition should be dismissed under section 60 of the said Ordinance ?"
7. Miscellaneous Appeal 131/73 also arose out of an election to the National Assembly, the Constituency in question being NW-131.-Karachi IV. In this case respondent No. 1 filed an application under section 37 (5) (d) before the Chief Election Commissioner on a question of a re-counting of the valid ballot papers and this was dismissed but the matter was agitated again by means of a constitutional petition in the High Court and later by Appeal to the Supreme Court all of which he lost. He then presented a petition to the Election Tribunal and it would seem that, in the written statement, objections were taken of the same character as in the other two appeals which mentioned, namely, that section 52 had not been complied with and the Tribunal proceeded to frame issues and thereafter, that is, on 1-7-1972, the appellant made an application asking first that the expression "by consent of parties" which was a part of the order framing issues be deleted and that the petition be dismissed for non-compliance of section 52. The Tribunal deleted the expression complained of but required the Advocate for the appellant to specify how section 52 was not complied with and in answer the Advocate would seem to have stated that he intended to question certain paragraphs of which he gave the numbers adding the word "etc." The Chairman then recorded that no other para. Would be questioned and wanted to hear arguments but agreed to adjourn the matter to the 3rd July 1972 and upon that date another application was made by the appellant claiming that he challenged all the paragraphs in which allegations of corrupt or illegal practices were made. The Chairman heard arguments and on the 2nd October 1973, passed the order, which is sought to be appealed against, holding that the allegations were detailed enough and that, therefore, section 52 was not violated.
8. The last Miscellaneous Appeal, namely, the one numbered 57 of 1972 relates to the Constituency P. S. 25, Hyderabad-III to the Provincial Assembly of Sind and here the question of an altogether different character. The main complaint against the appellant in the election petition, indeed the only one, was that he had not attained the age of 25 years on the date of his nomination. Three issues were struck but substantially they all relate to this one question. The appellant filed a certified copy of the birth register in Ajmeer Municipality (India) showing his birth date as being the 14th December 1944, and this was exhibited as Exh.
49. He also examined oral evidence in support of his contention that he had attained the requisite age. Respondent No.1 before us, that is to say, the petitioner before the Tribunal, objected to Exh. 49 but the objection was overruled and there-- after the appellant claims that he attempted to get authenticated copies of this birth register from the High Commissioner for Pakistan in India but, in the meantime, war broke-out and it became quite impossible to obtain such copies. On the 29th May 1972 the case was fixed for arguments and on that day the appellant made three applications under section 59 of the Ordinance which provides for certain procedural matters and among other things for the recording of evidence, read with Order XVIII, rule 17 of the Civil Procedure Code praying for adjournment. He has appealed and although I think the purpose of the appeal clearly is to call into question the order refusing him an adjournment it is not very precisely put in the memorandum. In the statement of facts it is stated "these applications were rejected without proper application of mind by the Tribunal and called upon the appellant to address the arguments on the main case, hence this appeal." The prayer clause itself is "it is, therefore, prayed that this Honourable Court will be pleased to call for the record and proceedings of Election Petition No 2/71 (Lai Muhammad v. Muhammad Usman and others) from the Election Tribunal, Sind & Baluchistan and set aside the orders appealed and pass any other appropriate orders". Technically 1 think, therefore, there is no real prayer but in substance what is intended to be challenged is the propriety of the refusal to adjourn.
9. Of the two Constitutional Petitions one, namely, Constitutional Petition No. 244/72 relate to the same Constituency and the same matter. As Miscellaneous Appeal No. 52/72 calling into question the very same order. Quite clearly this petition is filed out of caution and infect paragraph 10 of the petition states "that appeal, being C. M. A. No. 52/72, has already been admitted. In the course of the arguments, a preliminary objection was raised that "no appeal was maintainable under section 64 (3) of the Ordinance; hence this petition under Article 201 of the Interim Constitution of Pakistan."
Of course the petitioner is the same as the appellant in Miscellaneous Appeal No. 52/72.
10. Finally, Petition No. 610 of 1972 relates to an election to the National Assembly from Constituency No. N. W. 109, Sukkur No. I and here also an application was made under section 60 for dismissal of the petition on account of non-compliance of section 52 of the Ordinance. This application was dismissed but among the issues one issue, namely, issue No. 6 reads thus: "Whether full particulars of the allegation of corrupt and illegal practices or illegal acts as required by section 52 (1)(b) of the National and Provincial Assemblies Ordinance, 1970 were not given in the election petition or whether the allegations are vague? If so whether the election petition is liable to be dismissed under section 60 of the same Ordinance?"
11. It was of course conceded by learned counsel for the appellants that an appeal is the creature of statute as it could hardly be denied, the pro--position being too well established to admit of argument now. The argument, therefore, turned entirely upon the meaning to be given to the word "decision" in section 64 (3) and in reaching the conclusion that I have, to matters which, I feel free to say, have strongly influenced me in favour of the narrower construction are, firstly, an inclination to hold that the jurisdiction to hear an appeal from a Tribunal setup by the Legislature for the A purpose of deciding election disputes must be understood as narrowly as the statute is capable of being construed and, secondly, the context in which the relevant provision appears.
12. The first of these matters is due to the historical background of the adjudication of election disputes in our country and in England from which country largely our own development of the law has stemmed. This was considered in some details by a Division Bench of this Court, of which I was a member, in Miscellaneous Appeal 37/73. Syed Saeed Hassan v. Pyarall Allana. That appeal arose from a final decision of the Election Tribunal which held the election in question to be bad and the appeal before this Court was filed by the person who was originally declared the successful candidate. Inasmuch as the matter related to a final decision, the question whether an appeal lay against any order of the Tribunal other than a decision after trial naturally did not arise and was not considered but in considering the scope of the appeal itself the judgment of the Bench came to the conclusion that these were not matters inherently within the jurisdiction of the Court but were, historically, always regarded as the exclusive field of the Legislature itself and in view of that the general trend of the judgment, which based itself upon several decisions of the Supreme Court, was that interference could be justified only to the extent that was strictly permitted by the statute and no more. It is only a reading of the whole judgment which really brings out this position in complete detail and it is difficult to quote specific passages from it which would effectively summarise the reasoning but nevertheless the following two passages are indicative of the approach which was adopted in that judgment "In the ultimate analysis, I think, the limits of our power to interfere with the findings of the Tribunal are determined by the relevant statutory provisions which is section 64 of the Ordinance but I think it would be right to consider first what historically has been the approach of the Courts to this problem. In England and in "those countries where the Judicial Committee of the Privy Council exercised the authority of a final Court of appeal it has always been held that the right to settle election disputes belonged to the Legislature itself and that the Courts would not, in the absence of statute, feel justified in interfering with any decisions given by such a body as aril election tribunal.
There never has been any question of any inherent jurisdiction in the Courts to decide election disputes. It is unnecessary for me to quote from the many English cases and it will suffice, think, to refer to some cases of the Supreme Court which not only authorita--tively lay down the limits within which we ought to interfere but which also recite the history of the power of the Courts in England and other countries which have inherited that tradition,"
The judgment then goes on to quote extensively from some cases of the Supreme Court: "It will be seen, therefore, that the determination of an election dispute is not a matter which is normally to be understood as being within the jurisdiction of the Courts and interference in the decisions of Tribunals set up for that specific purpose is limited to the power expressly conferred by statute and then must be exercised with restraint."
13. I adhere to the view that I expressed in that judgment and think that if there is any doubt in the matter then that doubt must be resolved against and not in favour of the maintainability of an appeal. This is of course not to say that where the language of the statute is plain and clearly does confer the power of hearing an appeal I would on account of this presumption decline to exercise the jurisdiction; the duty of interpretation and construction arises, however, only when there is more than one possible meaning to be attached to the language used by the statute. If the language is plain enough no such duty arises at all.
14. Let me consider then next, the context of the provision which confers, the right of appeal. It is in the first instance to be noticed that the power is not conferred by a section standing alone, that is to say, a section, which confers the power of hearing an appeal and does not deal with any other matter. The section occurs after several which provide for the procedure to be followed by the Tribunal in the trial of an election petition and the first subsection states, what the powers of the Tribunal are "Upon the conclusion of an election petition" and these are to dismiss the petition, to declare the election of the returned candidate to be void, to declare the election of the returned candidate to be void and to declare some other candidate to have been duly elected or to declare the election as a whole to be void. It is to be noted that in subsection (1) itself the word "decision" is not used at all. Subsection (2) then gives finality to the decision of a Tribunal save as is provided for in subsection (3) which confers upon any person aggrieved "by a decision of the Tribunal" to appeal to the High Court and then goes on to state what the grounds are upon which' such an appeal may be maintained and how it shall be heard. Regard being had to the context I cannot but feel that the decision which is being referred to here is the order which is provided for in sub--section (1).
15. It is also to be noticed that the heading of the section is the expression "decision of the Tribunal" and this clearly is the order passed under subsection (1). I am of course aware that there are a large number of cases which have held that the heading of a section cannot curtail a power given in the section itself or control the meaning of the section. I am, by no means, attaching such importance to the heading to make it the important, much less the conclusive, factor in deciding the meaning of the word "decision". But there are also cases which hold that in the case of an ambiguity it is a factor which may be taken into account. Maxwell in his Treatise on the Interpretation of Statutes (XII Edition) afters taking note of the many cases m which it has been held that marginal notes cannot be used as aids to construction says, in regard to headings, "the headings pre-fixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute, but they may explain ambiguous words".
16. Even the dictionary meaning of the word "decision" is "the action deciding (a contest, question, etc.); settlement, determination; a conclusion, judgment, specially one formally pronounced in a Court of law". The word "decide", a grammatical variation of which has been used in this meaning, is itself defined in the dictionary to mean, "to settle a question in dispute ; to pronounce a final judgment" (Oxford Coincise Dictionary). So far as the dictionary meaning therefore, goes it would seem to me a decision which finally settles a controversy and that after determina--petition of the questions which are relevant to it and appears to me to be an indication of a limitation of the meaning to a settlement of the question after a full hearing. I realize of course that the dictionary meaning cannot be regarded as a statutory definition but, in the absence of a statutory definition, I think, this meaning and the context in which the word appears leads strongly to the conclusion that what was intended to be understood by the word was the kind of decision rendered by the Tribunal under subsection (1) of section 64.
17. Learned counsel for the appellant at first attempted to argue that there was no limitation, whatever, upon the word "decision" and that, therefore, any and every order of the Tribunal was capable of being appealed from under the subsection but soon had to concede that so wide a meaning was quite impossible for, then, even such comparatively minor matters as a ruling upon the admissibility of evidence or even the refusal to adjourn would become appeal-able. As a matter of interest it might be noted that one of the appeals that is before us is against a refusal to adjourn.
18. If, however, then the word "decision" is not to be understood as meaning any and every order then a principle would have to be discovered which would limit the meaning and that principle must, I think, clearly be discoverable from the statute itself. In this position Mr. Khalid Ishaque, appearing in one of the appeals for the appellant, advanced the proposi--petition that a `decision' means one which is "significant to the proceedings and purports to be one in exercise of power or non-exercise of power expressly conferred by statute." Now in the first place I am unable to see and Mr. Khalid Ishaque could not show us from which part of the statute this principle was to be inferred and, in the second place, it is difficult to under--stand the meaning of the expression which he used: "significant to the proceedings". When we put this difficulty to him, therefore, he said that the decision must be one which finally terminates the controversy between the parties and went on to argue that the statute itself contemplated the dismissal of petitions at two stages, one before a trial, under section 60, and the other after a trial, under section 64. There is of course no dispute that a decision after the trial is appeal-able.
19. Here again I am unable to see how the principle is really inferred from the statute itself but, assuming that it is so inferable because of the language of section 60, then it is to be remembered that section 60 contem--plates the dismissal of a petition by reason of non-compliance with section 51, 52 or 59 and I could have understood the argument, therefore, if an appeal was sought to be maintained against an order dismissing a petition. I must not be understood to be holding that an appeal lies against such a dismissal, for the question is not before us, but as merely meaning that the principle would be logical if the argument was so framed. In the event where, as in three of the appeals before us, the Petition has not been dismissed, can it really be said that the controversy has been disposed of? The petition is still alive and, therefore, learned counsel went on to modify the argument still further by saying that at any rate that part of the controversy, namely whether the petition ought to be dismissed under section 60 was, as between the parties, finally determined by the Tribunal. Now even that is not factually true in the present case. Before entering into the reasons of my decision I have already stated the material facts of each appeal and in each case it is to be seen that either the Tribunal has held that it is un--able to make up its mind finally whether the relevant provisions have been violated or that they in fact have not been violated but that in each case, nevertheless, an issue has been allowed to be framed and will, therefore, have to be answered finally and there can be no doubt of course that when the Tribunal gives its decision under section 64 (1) the correctness of the finding of the issue could be canvassed in an appeal under subsection (3) though of course the grounds would be limited to such as are mentioned in that sub--section. In any view of the matter, therefore, I cannot see, how it can be said that an order under section 60 is appeal-able.
20. On the question of context reliance was sought to be placed upon a decision of this very Bench, which is unreported, in Petition No. 527/67 Messrs Husein Industrial Limited v. The Central Board of Revenue and another. The main judgment in that case was delivered by my learned brother Fakhruddin, J. But in a concurring judgment I made some observations upon a question which had not been discussed by my learned brother and it is upon this concurring judgment of mine that reliance is placed, parti--cularly upon the following passage: "The division of a statute into sections, subsections, clauses or paragraphs has never been held to limit the meaning of any such clauses to the division within which they appear if the meaning of the language is otherwise plain."
Now I never intended to lay down and I do not think I have said that the context of a provision can never have any bearing on the meaning at all. All that I said is that the division of statutes into sections, sub--sections, clauses or paragraphs cannot limit the meaning of any such clause to the division within which they appear if the meaning of the language is otherwise plain. I think the last phrase is particularly important. In order to understand why I said this it is necessary to recall something of the statute which we were called upon to interpret; in section 15-BB of the Income-tax there was originally a subsection (4) which was plainly proviso to the whole section inasmuch as it started with the words "nothing contained in this section". Later subsection (4) was amended so as to include certain other matters within the ambit of the entire section and thereafter the original subsection (4) continued as a part of the new subsection without any change in its language and the question, therefore, arose whether this part of subsection (4) was to be read as a proviso to subsection (4) only or to the whole section. In these circumstances I held that it was to be read as a proviso to the whole section ; there was no ambiguity in the matter because the words themselves were "nothing contained in this section" and not "nothing contained in this subsection."
Reliance upon this judgment, I think, therefore, is entirely in vain for the proposition which learned counsel has advanced.
21. Reliance was then placed by learned counsel for the appellants upon the decision of the Supreme Court in S. M. Ayub v. Yousuf Shah (PLD 1967 SC 486) the particular passage which according to the learned counsel was relevant, being the following which appears at page 491 of the judgment: "Subsection (3) of section 66 of the Act empowers the Tribunal, at any time, upon such terms and on payment of such costs as it may direct, to allow a petition to be amended in such manner, as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real questions at issue. The learned Judges thought that this provision was controlled by section 67 of the Act, which imposes the penalty of dismissal on an election petition, if it fails to comply in part with the provisions of section 59 of the Act. Having taken this view, of section 67, the corollary drawn by them would seem to follow that no amendment of the petition could be allowed under subsection (3) of section 66, if this would have the effect of avoiding a penalty imposable under section 67. Learned counsel for the respondents, however, conceded that, if the assumed construction of section 67 be not correct, then the argument that the provisions of section 66 were controlled by section 67, would not be available. It is of some significance that the words "subject to the provisions of the Act occur specifically in sub--sections (1) and (2) of section 66 but they are not repeated in subsection (3) thereof. As observed above, the narrow construction of section 67, adopted by the High Court does not appear to us to be consistent with the provisions of the Act, read as a whole. The view, therefore, that section 66 is controlled by section 67, as regards the necessary amendment of a petition, appears to be open to grave question."
22. I must confess that I have been entirely unable to see how this passage is of any help to counsel. The case itself was one arising from an election held under the election law then in force, namely, the National and Provincial Assemblies (Elections) Act, VII of 1964 which provided for no appeal. It is, however, to be noted that sections 67 and 59 of that Act not only correspond with section 60 and section 52 respectively of the Ordinance which we are now considering but are in identical language. So far as I could understand learned counsel's emphasis was upon the undoubted fact that their Lordships of the Supreme Court did not accept the narrow construction of section 67 which had been adopted by the High Court. It does not seem to me, however, that the question as to how section 67 in that Act or section 60 in the present Ordinance is to be interpreted is of any help in the interpretation of section 64 (3) of the Ordinance.
23. On the contrary the passage immediately before the passage that I have quoted in this very case seems to me, so far as it goes, to be rather adverse to the contention put forward on behalf of the appellants before us. In that earlier passage which I reproduce below their Lordships were dealing with section 72 of the 1964 Act which corresponds with section 65 of the present Ordinance and is largely to the same effect. The present section is not a verbatim reproduction of the earlier one though some portions are: --- "There is nothing in the Act to give countenance to the contention that even a single defect in the petition, in respect of one paragraph, would justify its being thrown out as a whole. This construction would amount to reading into section 67 words that do not exist therein. The true construction of this section seems to be that, if the petition, taken as a whole, fails to comply with the provisions of section 59, it shall be dismissed as revealing no cause of action.
This conclusion is supported by the language employed in section 72 of the Act. This section provides, inter alia, that the Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the election of the returned candidate has been procured or induced by any corrupt or illegal practice, on a corrupt or illegal practice has been committed by the returned candidate or his agent, or by any other person with the connivance of the candidate as his election agent. It clearly follows that, if by evidence it is established that a single corrupt or illegal practice had been resorted to, by or on behalf of a candidate or with his connivance, it would be sufficient for declaring his election to be void. The position is not that, if several allegations of this character are made in a petition then it must fail, unless all those allegations are established as a composite whole. The various allegations do not apparently constitute an integral package such as would lose its integrity by the failure of one of its parts. The relief sought in such cases can be granted on a single transaction covered by clause (c) of subsection (1) of section 72, and the mere fact that some of the allegations made in the petition are defective, should not stand in the way of adjudication of other allegations, properly made and substantiated with full particulars in a petition.
The law does not appear to display a perfectionist attitude in this behalf and it seems to us, with reason. The law of pleadings has never been strictly construed and rigorously applied in all its technicalities, to this country as plaints and petitions drafted, specially in the mofussil, suffer from various minor defects. A very strict view, on the technical plane, of such pleadings, without regard to the substance of the matter, would defeat the ends of justice. Unless, therefore, the language of the law is intractable and clearly provides for dismissal of a petition for a technical defect, the Courts should not be astute to ascribe to the Legislature a desire to be hyper-technical, so as to smoother genuine litigation."
24. It seems to me that their Lordships of the Supreme Court were holding that the Tribunal should not be too strict and dismiss a petition in its entirety merely because "some of the allegations made in the petition are defective" and were inclined to disapprove of too strict a view, on the technical plane, of pleadings in these matters. Indeed, expressly, their Lordships are saying that, unless the language of the law forbids any other course of action, genuine litigation ought not to be smoothered.
25. Yet another way of looking at the matter is this that if the word "decision" in subsection (3) is to be understood as the appellants would wish us to understand it, namely, as meaning and including any and every order the word would have in subsection (2) to be given the same meaning. It has been laid down in a number of cases that where the same word is used more than once in a particular statute then the meaning to be ascribed to that word should be the same wherever it appears in the statute and it should be sufficient to quote from a case which is binding on us, namely, the case of Muhammad Rashid v. The State (PLD 1960 SC 168) in which, at page 170, Mr. Justice S. A. Rehman, delivering the judgment of the Court, observed: "This is in accord with the general principle of construction of statutes that a term which occurs more than once in the same Act, must be given the same meaning throughout the Act, unless a special definition of the term or the requirements of a context lead to the contrary conclusion."
26. Incidentally it will have been noticed that their Lordships are also approving reliance upon context for the purpose of construction as indeed they did in yet another case, namely, Pakistan Tobacco Company Limited v. Pakistan Tobacco Company Employees' Union (PLD 1961 SC 403) in which at page 417 Mr. Justice Fazle-Akbar observed: "It is no doubt true that meaning should be ascertained from the words employed in the definition, but set-up and context are also relevant for ascertaining what exactly is meant to be conveyed by the ex--pressions used in the Act."
27. If then the wide meaning is given to, the word "decision" in subsection (3) then giving it the same wide meaning in subsection (2) finality would also have to be given to all orders of the Tribunal excepting so far as they are open to appeal under subsection (3). Now in subsection (2) however, clearly the reference is to the decision rendered under subsection (1) and, looked at from that point of view, the meaning in subsection (3) would have to cut down because of the limited meaning in subsection (2). Either way, therefore, I am unable to see how a refusal to dismiss a petition under section 60 or; .For that matter, any other order of the Tribunal, is appeal-able.
28. Three of these appeals, as will have been such, are against refusals to dismiss the petitions under section 60 but one namely, Miscellaneous Appeal 57/72 really is against an order refusing to adjourn the case in order to enable the appellant to obtain evidence which is available only in a foreign country with which we have recently been at war and from which it is not possible just now to obtain such evidence. On the plane of principle of course having decided that subsection (3) of section 64 is available only to maintain appeals against decisions rendered under subsection (1) this decision is just as much non-appeal-able as the one refusing to dismiss a petition under section 60. If, however, it had been permissible to give a wider meaning to the word "decision" without including in it any and every order then, upon whatever principle a line was drawn, (and I have already stated that such a principle is not discoverable) the case for the maintainability of this appeal must stand upon a still weaker footing than that of the other three matters.
29. I have accordingly come to the conclusion that none of these four appeals are maintainable.
30. I turn then to the two Constitutional Petitions each of which is directed against a refusal of the Tribunal to dismiss the petitions under section 60; indeed one of them, as I have already stated, namely, Con--stitutional Petition No. 244/72 is directed against the same order as is challenged in Miscellaneous Appeal No. 52/72. Now it is true of course that, it being held that the order is not appeal-able, the argument that there was an immediate remedy available in law and that therefore a petition, does not lie, no longer stands in the way of the petitioner. I am neverthe-leas not persuaded that it follows that there is "no other adequate remedy provided by law" within the meaning of Article 201 of the Interim Constitu--petition or Article 199 of the Permanent Constitution.
I can find nothing in the language of these two Articles which necessarily speaks of an immediate remedy; the words used are "adequate remedy" and of course while it may be that if the remedy in question is not immediately available it may not, therefore, in a given case, be adequate what has to be considered is the adequacy of the remedy and not necessarily the immediate availability of it. It is conceded and, I think, it is even otherwise plain, that should the petition be eventually decided against the present petitioner, the question whether it ought to have been dismissed under section 60 could be canvassed in an appeal under section 64 (3) and there is clearly, therefore, a remedy available and provided by law and the only question is whether it is adequate.
It is contended that it is inadequate because if the petitioner has to undergo a trial which is without jurisdiction then he would have been put to a great deal of trouble and expense and I confess I should have been in sympathy with this argument if it was so entirely plain that the Tribunal has no jurisdiction to proceed with the petition at all. The question whether each of these petitions, however, is such as deserves dismissal under section 60 is by no means so easy to answer. How precise the allegations should be and in what details the particulars ought to be stated are matters which are so connected with the nature of the allegations that there can be no test, external as it were to the petition itself, which could be applied and it be held that the Tribunal has no jurisdiction to proceed.
31. It is true of course that section 60 is couched in mandatory language and requires the Tribunal to dismiss a petition if there is non-compliance with the particular provisions mentioned. Even so, however, I think, the primary jurisdiction of deciding whether there has been a non-compliance with the relevant provisions is that of the Tribunal itself. In Constitu--tional Petition 244/72 the Tribunal has in fact held that the particulars are precise and both in that case as well as in the one which is challenged in Constitutional Petition No. 619/72 issues have been framed on the point so that the Tribunal has not yet finally decided that it will not give effect to this particular prayer of the petitioner if in all the circumstances of the case ultimately he finds that there has been such non- compliance. I have already quoted a passage from the judgment of the Supreme Court where their Lordships have held that it would be wrong to be hyper-technical about these pleadings and to smother genuine litigations.
32. In these circumstances I think that there is an adequate remedy provided by law and that the petitions are not, therefore, maintainable, and that, in any case, our jurisdiction being discretionary, it would not be right to exercise it at this stage of the matter. It is for these two reasons that I came to the conclusion that the petitions must also be dismissed.
FAKHRUDDIN G. IBRAHIM, J.----I entirely agree with the reasons given by my Lord the Chief Justice.
K. B. A.