2003 PLP 1303 (YLR)

Iftikhar Ahmad Mian for Petitioner. Khawar Ikram Bhatti for Respondents: The brief facts out of which the present writ petition arises are that the petitioners and the private respondents contested the elections for the posts of Nazim and Naib Nazim of Union Council No.19 Pandoori Kalan, Tehsil Wazirabad, District Gujranwala in the Local Government Elections, 2001. The private respondents were declared as Returned candidates. The petitioners being aggrieved preferred an appeal before the Election Tribunal. The private respondents filed written reply of the election petition. Out of the pleadings of the parties, the learned Election Tribunal framed the issues. The petitioners produced their witnesses whereas the private respondents have also produced their witnesses alongwith the affidavits of Asad Manzoor, Irshad Ahmad Gondal, and Ashfaq Ahmad. The petitioners requested to cross‑examine the aforesaid persons before the Election Tribunal. The request of the petitioners was rejected by the learned Election Tribunal vide order dated 7‑11‑2002. Subsequently, the case was adjourned on the one pretext or the other. The petitioners filed an application before the learned Election Tribunal to allow the petitioners to cross‑examine the aforesaid persons on 18‑12‑2002. The learned Election Tribunal dismissed the application of the petitioner vide order dated 18‑12‑2002, hence, the‑present writ petition.

2. The learned counsel of the petitioners submits that the provisions of Civil Procedure Code and Qanun‑e‑Shahadat Order, 1984 are applicable in the present proceedings in view of the elections laws and rules, therefore, the learned Election Tribunal erred in law to reject the request of the petitioners. In support of his contentions, he relied upon an unreported judgment of this Court passed in Writ Petition No.11273 of 2002, dated 12‑8‑2002.

3. The learned counsel of the private respondents submits that the order was passed against the petitioners on 7‑11‑2002 thereafter the petitioners secured various adjournments from the learned Election 'Tribunal to argue the case as is evident from the order sheet of the learned Election Tribunal. He further submits that the petitioners mala fide without disclosing the order dated 7‑11‑2002 filed the application before the learned Election Tribunal on 18‑12‑2002 which was dismissed by the learned Election Tribunal with cogent reasons, as the petitioners concealed the material facts from the learned Election Tribunal in the contents of the application filed by the petitioners before the learned Election Tribunal. He further submits that the order dated 7‑11‑2002 was not challenged by the petitioners before any higher forum, therefore, the same', is final between the parties on the well‑known principle of res judicata.

4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.

5. The impugned orders dated 7‑11‑2002 and 18‑12‑2002 are not in accordance with the provisions of Order 19 of the Civil Procedure Code and Qanun‑e -Shahadat Order, 1984 and the law laid down by this Court in judgment dated 12‑8‑2002 passed in Writ Petition No. 11273 of 2002; The President v. Mr. Justice Shaukat Ali (PLD 1971 SC 585); Khan Salah‑ud‑Din Khan v. The Frontier Sugar Mills and Distillery Limited (PLD 1957 Lah. 844); Zafar Mir v. Mst. Naushina Amir Ali (PLD 1993 Karachi 775) and Rehmat Ullah v. Tufail Hussain and others (1987 CLC 792).

6. In view of what has been discussed above, the impugned orders dated 7‑11‑2002 and 18‑12‑2002 are set aside. It is pertinent to mention here that the petitioners did not request to the Election Tribunal and did not file any application after 7‑11‑2002 till 18‑12‑2002. In this view of the matter, the writ petition is accepted subject to the payment of costs of Rs.5,

000. Parties are directed to appear before the learned Election Tribunal on 10‑3‑2003. The learned counsel of the private respondents has given undertaking to procure the presence of his witnesses before the learned Election Tribunal on the said date. The learned Election Tribunal is directed to allow the petitioners counsel to cross‑examine the aforesaid persons. The learned Election Tribunal shall complete this process within a week even at the cost of day to day proceedings. The learned Election Tribunal is further directed to finalize the matter thereafter positively within one month. The petitioners shall deposit the cost in the account of the High Court Bar Association Dispensary and shall produce the receipt before the Election Tribunal on the said date. With these observations the writ petition is disposed of. M.M.U.K./M‑1739/L Petition disposed of.