2003 PLP 995 (SCMR)

TANVIR AHMED KHAN, J.

By this common order we intend to dispose of the above two petitions which are directed against the orders, dated 5-4-2002 and 6-5-2002 passed by a learned Single Judge of the Lahore High Court, Lahore, whereby Writ Petitions Nos.5600 of 2002 and 7448 of 2002 against the orders of the Election Tribunal emanated out of election petitions were dismissed in limine. The facts briefly narrated are that the petitioners as well as respondents Nos.2 to 5 contested the local bodies elections of Nazim and Naib Nazim of .Union. Council No. 57, Tehsil Kamalia, District Toba Tek Singh, in the year 2001. The petitioners were declared returned as Nazim. and Naib Nazim through a notification published in the official Gazette. Respondents Nos.2 and 3 filed an election petition under Rule 70 of the Punjab Local Government Elections Rules, 2000, in June, 2001, taking exception to their election on the ground that petitioner No.2 Allah Bakhsh had misstated his assets in the declaration form. This petition was contested by the petitioners. Issues were framed on 28-1-2002 and the case was adjourned for evidence of the respondents on 2-2-2002. The matter was taken up by the Election Tribunal at Kamalia on 22-2-2002 and it recorded the statement of Ahmad Shahzad Shah, respondent No.2. Since the petitioners' counsel was from Jhang and for certain reasons could not reach Kamalia on the above date, as such the petitioners made a request to the learned Election Tribunal either to adjourn the case or reserve the right of cross-examination by their learned counsel. However, this request was declined and some cross-examination was stated to have been made at the suggestion of the petitioners. The case was, accordingly, adjourned to 18-2-2002 for the production of evidence of the petitioners. The petitioners assailed the order, dated 2-2-2002 of the learned Election Tribunal before the Lahore High Court by filing Writ Petition No-5600 of 2002 whereby the right of cross-examination by the petitioners counsel was disallowed to them. In the meantime, the learned Election Tribunal seized of the matter adjourned the case to 8-4-2002 and gave a final opportunity to the petitioners either to produce their evidence or to bring a. stay order from the High Court and the case was adjourned to 20-4-2002. On the adjourned date, the matter was taken up. Writ Petition No.5600 of 2002 was dismissed on 5-4-2002 and since the petitioners evidence was not available, as such their right of adducing evidence was closed through an order, dated 20-4-2002 by the learned Election Tribunal. This order was challenged by the petitioners through Writ Petition No.7448 of 2002, which has been dismissed in limine by a learned Single Judge of the Lahore High Court, Lahore, through his order, dated 6-5-2002. Hence, these petitions for leave to appeal. It is argued by the learned counsel for the petitioners that the petitioners firstly filed Writ Petition No.5600 of 2002 against the order, dated 2-2-2002 whereby their right of cross-examination of the witness was taken away. The same was dismissed by the High Court on 5-4-2002, where after they filed Civil Petition No. 1248-L of 2002 before this Court, which remained pending till date. In the meantime, while the petitioners were following their cause before the High Court as well as before this Court, their right of bringing evidence to controvert the stance taken by the respondents in their election petition had also been taken away. Learned counsel appearing for the respondents has supported the impugned orders. We have considered the contentions raised by the learned counsel for the parties and have gone through the documents appended with the petitions with their assistance. We have noticed that the petitioners were firstly fighting for their right of cross-examination which was denied to them on the very first date of recording evidence of the respondents and having failed over there, they also in the mean time lost their right of bringing evidence by the learned Election Tribunal. In the peculiar circumstances of this case, we are of the view that since it is a settled principle of this Court that the cases should be decided on merits and technical knock-out should sparingly be resorted to, as such in the case in hand it would be in the interest of justice and fairpaly if one opportunity is granted to the petitioners to produce their evidence so as to controvert the stance taken by the respondents qua the declaration of assets on the part of petitioner No.2 Allah Bakhsh. We, accordingly, convert Civil Petition No.l614-L of 2002 into an appeal, set aside the orders of the Courts below and remand the case to the learned Election Tribunal which shall allow one opportunity to the petitioners to produce their evidence. However, there will be no order as to costs. In view of the order passed in Civil Petition No. 1614-L of 2002, learned counsel for the petitioners has prayed that he will not press Civil Petition No. 1248-L of 2002, which is dismissed as not pressed. M.H./H-63/S?????????????????????????????????????????????????????????????????????????????????????? Case remanded