2007 PLP 860 (CLC)

MIAN HAMID FAROOQ, J.

Present appeal, under section 3 of Law Reforms Ordinance, 1972, proceeds against judgment, dated 5-5-2006 (announced on 9-5-2006), whereby the learned Single Judge in Chambers allowed respondents Nos.4 and 5's constitutional petition (Writ Petition No.2047 of 2006) and held that appellant's election petition shall be deemed to be pending before the Election Tribunal and the same shall be decided in accordance with law.

2. The appellants, respondents Nos.4, 5, 6 and 7 contested the Local Bodies Election for the seats of Nazim and Naib Nazim, respectively, of Union Council No.54, District Muffargarh, in panels. Respondents Nos.4 and 5 were declared as returned/successful candidates by securing 3459 votes, the result was duly notified and they statedly assumed charge of their respective offices. Seemingly aggrieved by the said results, the appellant filed the election petition under Rule 65 of the Punjab Local Government Rules, 2005 on various grounds, which was contested by respondents Nos.4 and 5, only through the written reply. The learned Election Tribunal framed necessary issues and when the case was fixed for recording appellant's evidence, they filed the application, stating therein that they would confine their claim only to the extent of recounting of votes and will not press the other grounds taken in the election petition. Respondents Nos.4 and 5 contested the said application, however, the learned Election Tribunal allowed it to the extent of recounting of votes of Polling Stations Nos.314, 315, 316 and 317 and summoned the election material/bags of the said polling stations for recounting/rechecking of the votes, vide order, dated 17-4-2006. The respondents Nos.4 and 5 filed the constitutional petition (Writ Petition No.2047 of 2006) challenging the said decision, which was resisted by the appellants inter alia on the ground of its incompetency. The learned Single Judge in Chambers in the ultimate analysis allowed the constitutional petition, declared order, dated 17-4-2006 as without lawful authority and directed that the election petition shall be decided by the Election Tribunal in accordance with law, vide impugned judgment, dated 5-5-2006 (announced on 9-5-2006), hence the present appeal.

3. Learned counsel for the appellants has contended that since the constitutional petition was directed against the interim order passed by the Election Tribunal for recounting of votes, therefore, it was incompetent and deserved to be dismissed on this ground. He has relied upon Sheikh Iftikhar-ud-Din and another v. District Judge Bahawalpur Exercising Powers of Election Tribunal for Union Council of District Lodhran and 8 others 2002 SCMR 1523, Sheila B. Charles v. Election. Tribunal and another 1997 SCMR 941 and Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others PLD 1994 SC

867. His next contention on the strength of judgment reported as Muhammad Naeem Kasi and another v. Abdul Latif and 7 others 2005 SCMR 1699, is that the Election Tribunal is not debarred from recounting of votes without framing of issues and recording evidence. Conversely, the learned counsel for the respondents has stated that the case of Muhammad Naeem Kasi and another (ibid) is not applicable, as in that case recounting was made with the consent of the parties and the case is with regard to Balochistan Local Government Rules, 2000, while the present case is governed by the Punjab Local Government Ordinance, 2005. He has further submitted that the Election Tribunal is not empowered under the law to direct recounting of votes without recording evidence and the order, dated 17-4-2006 was rightly set aside by the learned single Judge. He has relied upon Mian Ejaz Shafi v. Syed Ashraf Shah, 1st Additional sessions Judge, Karachi and Returning Officer, Karachi West-1 and 12 others 1996 SCMR 605, Kanwar Ijaz Ali v. Irshad Ali and 2 others PLD 1986 SC 483, Liaquat Ali and another v. Election Tribunal, Sialkot and others 2003 SCMR 1313 and Zulfiqar Ali v. Election Tribunal/Civil Judge 1st Class, Khanpur and 5 others 2000 MLD

746. In rebuttal the learned counsel for the appellants has stated that the case of Muhammad Naeem Kasi was a contested case and that the provision of the aforenoted two rules are identical.

4. We have heard the learned counsel and examined the available record. Admittedly, the writ petitioners through the constitutional petition challenged the interim order, dated 17-4-2006, passed by the learned Election Tribunal. The question arises as to whether an interim order passed by the Election Tribunal could be challenged in a constitutional petition. It is neither the case of the contested respondents nor argued before this Court that the order dated 17-4-2006 passed by the learned Election Tribunal is either without jurisdiction or suffers from lack of jurisdiction or was passed in excess of jurisdiction. Undoubtedly, the said order was passed by the Tribunal with jurisdiction. If every interim order passed by the Election Tribunal is made subject to the constitutional jurisdiction of this Court, we are afraid that some unscrupulous litigants in order to frustrate the proceedings in the election petitions would assail each and every interlocutory order passed by the Election Tribunal before this Court, through constitutional petition, and in that case the Election Tribunal would not be able/allowed to decide the election petitions till the terms of returned candidate comes to and end. The Honourable Supreme Court of Pakistan in the case of Shelia B. Charles (supra) relied upon by the learned counsel for the appellants, upheld the order, passed by the Division Bench of this Court which dismissed constitutional petition on the ground that the impugned order before them is an interlocutory one and passed by the Election Tribunal with jurisdiction. It was held in the said judgment that if the orders of the Election Tribunal are illegal, the same could be challenged by the petitioner, if eventually the election petition is decided against her. Similarly, in the case of Sheikh Iftikhar-ud-Din and another (ibid), the Honourable Supreme Court of Pakistan upheld the order passed by the learned Single Judge of this Court, whereby it was held that the order passed by the learned Election Tribunal is interim in nature and was not open to interference in constitutional jurisdiction of this Court. Being fortified by the aforenoted judgments, we are of the considered view that the interim/interlocutory order passed by the learned Election Tribunal could not be challenged in the constitutional petition. In view whereof, order dated 17-4-2006 being interlocutory order could not be challenged in the constitutional petition, which deserved to be dismissed on this short ground.

5. As regards the next contention regarding validity and legality of order dated 17-4-2006, passed by the learned Election Tribunal, we do not like to comment upon merits of the said contention, as the election petition is still pending before the Election Tribunal and final order is yet to be passed, which can be assailed by either of the parties before the higher forum. If at this stage any findings qua the said order are given, it may prejudice the cause of either of the parties before the Election Tribunal or thereafter. It is settled law that the interim order merges into final order and if the final order is passed against the writ petitioners, then, obviously, they could challenge order, dated 17-4-2006 when availing remedy against final order.

6. In view of the above, we have examined the impugned judgment and find that the same is not sustainable in law, as to our mind, petitioners' constitutional petition was not maintainable and the learned Single Judge should have dismissed the said petition on the ground of its incompetency without rendering any findings on the merits of the case. As we are inclined to allow this appeal and set aside the impugned judgment on the ground of incompetency of the constitutional petition, therefore, we are not dilating upon the merits of order dated 17-4-2006.

7. In the above perspective, the present appeal is allowed and the impugned judgment dated 5-5-2006 is set aside with no order as to costs. Resultantly, the constitutional petition, filed by respondents Nos.4 and 5 stands dismissed on the ground of its incompetency and, thus, order dated 17-4-2006 shall hold the field. H.B.T./M-134/L I.C. Appeal allowed.