Justice Mansoor Ali Shah opines PTI should have appeared before SC

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00:00And Raja sahib, you have to take a specific position whether PTI candidates, 86 of them

00:08that contested elections as independents, they contested the elections as candidates of a

00:16political party PTI. You cannot change that stance. There is the legal position and there

00:24is other position. The legal position is that the election commission treated us as independents,

00:28gave us symbols out of the symbols. Raja sahib, as my Lord Justice Mansoor Ali Shah

00:36correctly stated that it is such a great public importance issue that your petition was probably

00:43more important. That could not have been returned. Now if you are abandoning that.

00:49I'm not abandoning that. I'm saying that issue is before your lordship.

00:53If we do not take notice of this matter under article 184.3 of the constitution,

01:01the people, their rights will be affected. I bow, I bow and I say so. You have to take a

01:06very clear stance. My Lord, I don't know what will find favour with your lordship,

01:10so I'm making two submissions, two alternative submissions.

01:54I was relying on me. I suppose they thought I have raised this issue and then when elections

02:09had happened and what happened to us, we were immediately involved before the election

02:12commission with our applications for recount and for re-examination and so on. The whole scenario

02:18changed after the election. Now, kindly let us see.

02:30Then I would submit. As my Lord is pointing out, Justice Atar Manilal, this is in your lordship's

02:34favour. Please argue your case. Yes, Your Lordship. I have not moved ahead.

02:39I'm placing reliance on a Privy Council judgment, which is then approved in our

02:50own jurisprudence. This is at page 61 of this paper book that I've placed before your lordships.

02:54And the question here was whether a proviso, what is the function of a proviso?

03:02Whether it is always... Which case are you referring to?

03:04This is, the case is titled the Commissioner of Stamp Duties versus Alan Cave Atwell.

03:10And this is 1973 Appeal Cases 558 Privy Council.

03:19And this has been noted with approval in 2017 PTD page one. I've placed that judgment here as well.

03:27Now, kindly see on the question of what a proviso does.

03:36This matter had come to the Privy Council from Australia, where the High Court had taken the

03:42view that a proviso can only restrict what precedes it and do nothing more. And I read at page 63.

03:50Their lordships are not able to agree with this conclusion. While in many cases,

03:57that is the function of a proviso. It is the substance and content of the enactment,

04:02not its form, which has to be considered. And that which is expressed to be a proviso may itself add

04:09to and not merely limit or qualify that which precedes it. Then I skipped the next paragraph.

04:16I go down to the paragraph thereafter. In my view, that is not the case here.

04:24And as Lord Herschel pointed out in the same case, of course, a proviso may be used to guide

04:29you in the selection of one or other of two possible constructions of the words to be found

04:34in the enactment and show when there is doubt about its scope, when it may reasonably admit

04:40of doubt as to its having the scope or that which is the proper view to take of it. My Lords, that

04:45is precisely the method of construction, which in my view is applicable in the present case.

04:51I will add that the words beginning, provided that are in my opinion, additional and explanatory

04:56words necessary for the purpose of giving a more definite meaning to the preceding words,

05:02that is of removing doubt as to its scope. And they might easily have been incorporated in the

05:07earlier part of the section at the risk of making it rather more cumbrous than it is.

05:12We are not dealing here with a true proviso or at any rate, not with such a proviso as this

05:17House was considering in the case cited. It cannot, I think, be disputed that in

05:22construing a section of an Act of Parliament, it is constantly necessary to explain the meaning

05:27of the words by an examination of the purport and effect of other sections in the same Act.

05:32This principle is equally applicable in the case of different parts of a single section.

05:36And nonetheless, that the latter part is introduced by the words provided that are like words.

05:41There can, I think, be no doubt.

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