1998CLC612 (PLP)

Ch. Abdul Sattar for Masud Ahmad Khan for Petitioner. M. M. A. Pirzada for Fazal‑i‑Hussain for Respondent No.

1. Respondent No.2: Ex parte. ' Parties to main petition under section 52 of Representation of the People Act, 1976 contested the elections for NA‑141‑BWP‑

1. Respondent No.1 secured maximum votes and was declared as returned candidate.

2. The petitioner has assailed his success by ascribing plethora of undemocratic exercises and chain of foul plays on his part. The petitioner has gone to the extent that respondent No.l was not even eligible at the time of filing nomination papers. Anomalies attributed to the respondent No. l allegedly permeated the whole election process. It has, therefore, been maintained that end failed to justify means and maxim "nothing fails like success" rings true. Counting irregularities during the election process, most glaring has been described to be concealment of the movable and immovable properties owned by respondent No.

1. He allegedly spread a sheet of mist over his valuables and did not dare to paint clear picture in order to justify his eligibility.

3. While giving details of foul plays and illegal practices of respondent No.l, it has been averred that he holds title of AMEER of Bahawalpur for his lifetime w.e.f. 11‑4‑1988, and Government Notification, dated 26‑11‑1992 bestowed upon him certain privileges and concessions including fixed quantum of maintenance allowance at the rate of Rs.16 Lac per annum since conferment of title. But this maintenance allowance did not find mention in the nomination papers filed on 21‑12‑1996, while, he was bound and under statutory obligation to give description of his property with clarity on page 4 of the Nomination Papers. Statedly respondent was not oblivious of the consequences of Order, 1969 which distributed and determined shares of the properties of late AMEER, Muhammad Abbas Abbasi amongst his heirs. Allegedly, respondent No.l held jewellery, crockery, furniture, orchards, palaces, land, arsenal etc., worth millions, but, he did not mention or unveil it while filing nomination papers. He is said to have purposely concealed his belongings and thereby attracted the mischief of Articles 62 and 63 of Constitution of Islamic Republic of Pakistan. Accordingly, he has been accused to have contested the elections with uncleaned hands. Again it has been averred that he was bound to declare whatever he possessed even as custodian or otherwise in the nomination form with respect of movable and immovable properties. It has, therefore, been alleged that he was not qualified to be a candidate on the nomination day and on account of concealment, he, stood ensnared in the cobweb of Article 62(d), (e) and (f) read with Article 63 and section 99 of the Representation of the People Act. A declaration has accordingly been sought that in place of respondent No.1, the petitioner be substituted.

4. Alongwith main petition, the petitioner has moved an application under Order XXXIX, rules 1 and 2, C.P.C. read with section 151 of same Code and section 64 of Act LXXXV of 1976 with the prayer that returned candidate be restrained to act as M.N.A., till its final adjudication.

5. Respondent No.l, the returned candidate, has contested both the petitions mentioned above by raising certain preliminary objections as well, which, of course, are purely legal and technical in nature and character. In short, both the petitions have been resisted and opposed on factual as well as legal plinth. Since, however, its adjudication or discussion at this premature stage may cause prejudice to either of the sides, hence better to let remain the lid. firmly thereupon. On facts, it has been oppugned that nomination papers were duly scrutinised in presence of all contesting candidates/their Election Agents and having been found correct were accepted by the Returning Officer on 26‑12‑1996. Also it has been maintained that no objection whatsoever was raised by the petitioner and as such any grousing at this belated stage reflects licking the wounds. It has been explained that an appeal was filed against acceptance of Nomination Papers under section 14(5) of the Representation of the People Act, 1976, but, it met the fate of dismissal as withdrawn vide order, dated 6‑1‑1997 passed by a learned Division Bench. An objection has been raised to the effect that petitioner has not filed verified copies of documents as required by law and as such no reliance can be placed upon the averments or the copies of such documents. Respondent No. l has further denied and refuted that he made any incorrect or false statement with regard to the movable/immovable properties owned by him, his wife or any of his children. No doubt, according to him, the Federal Government of Pakistan had passed devolution and distribution of property (AMEER of Bahawalpur) Order, 1969, but, it was declared by a Division Bench of High Court having not been passed in accordance with law vide judgment reported in PLD 1978 Lah 1166. This verdict was assailed by Federal Government before Apex Court of Pakistan where it is still pending adjudication. It has, therefore, been asserted that the petitioner is not entitled or have any justifiable ground whatsoever to claim as duly elected.

6. Learned counsel for the petitioner has reiterated all aspects, factors, points and grounds urged in the petition as well as application, and bedecked his arguments and enriched the polemic with case‑law reported in Sardar M. Jamal Khan Leghari v. Sardar Zulfiqar Ali Khan Khosa (PLD 1997 Lah. 250), Ehsanul Haq Piracha v. (Brid. Retd.) Ghulam Hussain Cheema and others (1995 CLC y 382), Haji Mian Aziz‑ur‑Rehman Chan v. Mian Abbas Sharif and another (1994 MLD 2293) and Sh. Rashid Ahmad v. The Election Tribunal comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another (PLD 1993 Lah. 791).

7. Conversely, learned counsel for respondent No. l has endeavoured to repel looming danger with the help of Julius Salik v. Returning Officer and 27 others (1989 CLC.2499), Jam Mashooq Ali v. Shahnawaz Junejo (1996 SCMR 426), Dr. Sheela B. Charles v. Qaisar Ifraeem Soraya and another (1996 SCMR 1455), Lachman Das v. Servanand and 66 others (1995 SCMR 435), Tariq Mehmood Bajwa v. Muhammad Afzal Sahi and others (1994 CI .C 1366), Ishanul Haq v. Dr. Saddiqe Hussain and another (1995 CLC 392), Ch. Fateh Jang v. Dr. Sheela B. Charles (1995 CLC 923), Muhammad Saeed and 4 others v. Election Petitions Tribunal West Pakistan, (2) Mehr Muhammad Arif Khan, (3) Ghulam Haider and (4) West Pakistan Government and others (PLD 1957 SC (Pak.) 91), Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others (PLD 1994 SC 867), Haji Muhammad Asghar v. Malik Shah Muhammad Awan and another (PLD 1986 SC 542), Ch. Fateh Jang v. The Punjab Election Commissioner, Lahore, etc. (1997 CLC 1350), Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. Government of Pakistan through Joint Secretary, Minister of State and Frontier Region, Bahawalpur and 23 others (PLD 1978 I,ah. 1166), Government of Pakistan v. Brig. H.H Nawab Muhammad Abbas Khan Abbasi and others (PLD 1982 SC 367), Brig. H.H. Nawab Muhammad Abbas Khan Abbasi, Ameer of Bahawalpur v. The Government of Pakistan and others (PLD 1984 SC 67). Inayatullah Khan v. Hajt Ghafoor Jadoon and others (1992 MLn 2540), Malik Iqbal Ahmad Khan Langrial v Rai Ahmad Nawaz etc. (1990 CLC 595), Bostan Ali Hoti v. Haji Aziz Karim (1988 MLD 2116), Haji Zafar Ali Leghari v. Returning Officer (1992 MLD 2312), Syed Manzoor Hussain Shah v. Syed Zafar Ali Shah and others (1989 MLD 3377), Ihrar Khattak v. Mian Muzaffar Shah and others (1991 CLC 175), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), and the Attorney‑General of Canada v. Hallet and Carey Limited and another (PLD 1952 PC 29).

8. There can be no cavil to the proposition that the Tribunal may, pending the final disposal of the petition, grant such interim relief as it may deem fit. Also it is trite law that interim relief may be refused and declined even if the petitioner has a prima facie case, of course, keeping in view balance of convenience and irreparable loss, which, respondent is likely to suffer in such situation. In the instant case, it would not be in the interest of justice to grant interim relief, for the same, would not, only cause great inconvenience and irreparable loss to respondent but tantamount to granting relief prayed in the main petition itself before the conclusion of regular trial. Moreover, allegations howsoever grave, are allegations simpliciter and cannot be treated as gospel truth at the very inception. It was observed in Julius Salik v. Returning Officer and 27 others (1989 CLC 2499) that elected office‑holders are not to be restrained from performing their functions without final judgment and no interim injunction should be allowed.

9. Learned counsel for the petitioner, while citing PLD 1997 Lahore 290, has laid great stress that High Court while exercising jurisdiction under Article 199 of the Constitution is competent to dive deep into the corrupt practice during election, hence, the Tribunal is also empowered to sift the grain from chaff even at preliminary stage and issue interim injunction. In the case referred to above, election process was not yet over unlike the present case. Article 225 takes precedence over Article 199 when a candidate is declared successful. Article 199 is a powerful weapon to oust a candidate from a ring provided the order passed by the Election Tribunal is without jurisdiction or is the result of failure to exercise jurisdiction or is tainted with mala fide or patently illegal. The petitioner has not uttered single word or questioned the legality of proceedings, dated 7‑1‑1997 conducted by the Election Tribunal in connection with the acceptance of nomination papers Allegations of default are yet to be substantiated and it will not take a cumbersome course to reach that destination. Mere vindication of honour or satisfaction of suffered dignity is no ground to strangulate the activities of a successful candidate. As expounded in PLD 1989 SC

396. Article 225 is not controlled by Article 199 and also there is hardly any occasion to have recourse to satisfaction of there being no adequate remedy. Article 225 by its mandate creates an independent jurisdiction for redress of grievance in election disputes and it is in the exercise of that jurisdiction that all questions of law and fact are decided by the Tribunal after the Elections are over and not at an intermediate stage against which appeal lies to the Supreme Court whose decision is final.

10. Upshot of above exercise is that no valid ground exists to put the rope around the neck of respondent No. l in the offing. Let the parties exhaust evidence in their store and till then imposition of any embargo does not look justified. Application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. and sections 64 and 76‑A of Act LXXXV of 1976 accordingly merits rejection and is hereby turned down.

11. For further proceedings, to come up on 17‑7‑1997 at Principal Seat. A. A./162/E Application rejected.