1989 PLP 2499 (CLC)

8. In reply, it was submitted by learned counsel for respondent No.9, Peter Johan Sahotra that petition for grant of injunction was an afterthought and without substance. He pointed out that it was as far back as on 26th November, 1988 that respondent No.22 he was declared to be elected as a member of the National Assembly and that he made oath as such on 30th November, 1988. Thereafter, he took part in election to the seats reserved for women as well as in the confidence motion moved in favour of the Prime Minister, Mohtarma Benazir Bhutto, besides acting as a member of the National Assembly in connection with the annual budget and other important matters but the petitioner never thought of stopping him from so doing. He was surprised to see that after about a year the petitioner has come up with prayer for temporary injunction when no confidence motion has been moved against the Prime Minister.

9. Argument of learned counsel for respondent No.22 was that the petitioner did not have a prima facie case inasmuch as the mainstay of his case, i.e., the report of the Committee constituted by my learned predecessor, was still under objection. It was pointed out by him that the same had been objected to by the petitioner as well, m the connected Election Petition (E.P.No.38 of 1988). According to him, order relating to appointment of the Committee was without jurisdiction and its report was based on forged certificates furnished by the Polling Agents. He informed me that the order of my learned predecessor regarding setting up of the Committee was under challenge before the Supreme Court. Argument proceeds that it will be after recording of evidence, cross examination of witnesses and detailed arguments that final verdict regarding validity or otherwise of the report would be passed. It was also pointed out by him that even according to the report of the Committee the petitioner could not win a seat because he was at No.5 and total number of seats was

4. He was, therefore, of the view that there was no prima facie case in favour of the petitioner.

10. It was also canvassed by learned counsel for respondent No.22 that balance of convenience was in favour of the respondent. They explained that the respondent would suffer great inconvenience due to the grant of temporary injunction inasmuch as he would not be able to perform his public functions as a member of the National Assembly, but no inconvenience whatsoever would be faced by the petitioner in the event of refusal of such injunction. It was added by them that lot of mental agony will be caused to respondent No.22 if he was restrained from acting as a validly declared member of the National Assembly. It was vehemently argued by him that an irreparable injury would be caused not only to respondent No.22 but also to thousands of citizens represented by him if he was not permitted to function as a member of the National Assembly inasmuch as the Christian community represented by him would be disfranchised and there would also be vacuum in the National Assembly qua that community. They relied on Abdul Wahid and another v. Din Muhammad and others PLD 1982 Lah. 168, Shah Muhammad v. Shafey Ali Khan and 3 others 1988 MLD 956 and Khuda Bakhsh v. Malik Mushtaq Ahmad and another 1984 CLC 1000 to support their arguments.

11. While adopting arguments advanced by learned counsel for respondent No.22, it was added by learned counsel for respondent No.9 that the petition for stay order was mala fide inasmuch as the petitioner never objected to the participation of respondent No.9 in the proceedings of the National Assembly for the last about one year. It was also urged by him that if two of the respondents, namely, respondents Nos.9 and 22 were restrained from taking part in the said proceedings, half of the Constituency for Christian community would go unrepresented in the National Assembly and it would be an irreparable loss to the said community. According to learned counsel for respondent No.9 any stay order against respondents Nos.9 and 22 would virtually amount to unseating them before deciding the election petitions. He, therefore, strongly opposed the grant of stay order against them.

12. There can be no dispute to the proposition that a temporary injunction can be issued by an Election Tribunal in appropriate cases just as this can be done by a Civil Court in a suit, under the Code of Civil Procedure. Three conditions are, however, required to be fulfilled before such an injunction can be issued. It is, therefore, to be examined whether the present case satisfies all these conditions.

13. In the first instance it is to be seen if there is a prima facie case in favour of the petitioner. His learned counsel heavily relied on the report of the Committee which, as indicated above has been objected to by respondent No.22 and respondent No.ll. Curiously enough, it has been taken exception to by the petitioner also in the connected Election Petition (E.P.No.38 of 1988). Objections of respondent No.2 are yet to come. The report also gives an impression that the Committee felt handicapped in expressing definite view without doing some further exercises. It is clear from the following remarks appearing in the report:‑ "The Committee is of the view that complete checking of record of each polling station falling in this constituency is essential for which the Election Tribunal may like to pass suitable orders." (Last sentence of paragraph 10). "The Committee has doubts that results of polling stations Nos.22 and 24 have been omitted by the Assistant Returning Officer concerned in the statement of count for Constituency No.NA‑90 because `Nil' entries have been shown against the abovementioned polling stations whereas according to photo copies (Annexures F & G) produced before the committee by the representative of Capt. (Retd.) Sana Ullah 11 and 41 valid votes have been polled at the above said polling stations, respectively. Suitable order may also be passed by the Election Tribunal in respect of these two polling stations." (Paragraph 11) .......... a total number of 67 votes polled at these polling stations in favour of Mr. Julius Salik, were wrongly posted by the Assistant Returning Officer concerned in the column relating to Mr. James M. The Election Tribunal may like to pass order to call for original record relating to the abovementioned polling stations for examination and setting right the mistakes." (Concluding portion of paragraph 17) "However, the learned Election Tribunal may pass order claiming for the original record of polling stations, the mistakes relating where to have been specifically pointed out by the committee in the preceding paragraphs:" (Last sentence of paragraph 19) "In paragraph 3 of his abovementioned application, Mr. Julius Salik has claimed that according to the statement of count of Polling Station No.44/6 Municipal Corporation Girls Training Model School, Daras Mian Wada, Moghalpura, in NA‑94, he had got 86 votes whereas wrongly only 44 votes were counted. He produced before the Committee a photo copy of Form XIV (Annexure `M') relating to Muslim candidates at the end of which an unintelligible entry `Christian 86 only' appeared. This proof was not acceptable to the committee. The Election Tribunal may like to pass orders calling for original record relating to the above‑said polling station and decide the issue." (Paragraph 20) "The learned Election Tribunal may pass orders for inspection of original record relating to this polling station." (Last but one sentence of paragraph 25)

14. That the report is lacking in certain respects has also been admitted by the petitioner, in paragraph 5 of the instant petition, in the following words:‑ 'The Committee while expressing doubts about results also recommended complete checking of record of each polling station." Report of the Committee, therefore, cannot be regarded as final word in the matter.

15. Even if the petitioner has a prima facie case, the balance of convenience is certainly not in his favour. If respondents Nos.9 and 22 are restrained from performing functions as members of the National Assembly, they will be greatly inconvenienced. They will also be exposed to lot of mental agony and embarrassment. The petitioner will, however, not be put to any inconvenience if temporary injunction is withheld because he is already out of the National Assembly. He cannot get into it unless his petition is accepted and he is declared to be a member of the Assembly. Thus, his case does not satisfy the condition relating to balance of convenience.

16. Third requirement for grant of temporary injunction is likelihood of petitioner's sustaining an irreparable injury due to the refusal of temporary injunction. I believe that no injury would be suffered by the petitioner m the absence of stay order because presently he is not representing any one in the National Assembly. On the other hand an irreparable injury would be caused to respondents Nos.9 and 22 if they are not allowed to enter the National Assembly to act as members thereof despite their having been so declared. They will not be able to represent the voters who have given them mandate to plead their cause in the popular House of Parliament. In such event the injury will not be confined to the said two respondents but would also extent to thousands of voters by whom they have been chosen. Even according to the report of the Committee their total number is 32224 (16362 + 15862). If any matter concerning such voters comes up before the Assembly it would go by default if there is none to represent them. This would also create a vacuum in the National Assembly. Such a vacuum has not been approved of in the cases of Abdul Wahid and another, Shah Muhammad and Khuda Bakhsh, cited by learned counsel for respondent No.9. All these cases were decided by Division Benches of this Court. Proprietary demands that sitting singly, and that too as an Election Tribunal, I should follow the principles laid down therein. Incidentally, I happen to be author of judgments recorded in the cases of Shah Muhammad and Khuda Bakhsh and I see no good reason to change the view expressed in these cases.

17. The case of Abdul Wahid and another was decided by a Division Bench headed by Mr. Justice Abdul Shakurul Salam, now the Honourable Chief Justice of this Court. While deciding it he placed reliance on Rameshwar Das v. Yakin ud‑Din Khan and another AIR 1924 Lah. 633 and Shamsuddin Ahmad v. Charu Chandra Biswas and others AIR 1934 Cal. 621 which were cited for the proposition that "in election matters, no interim relief is to be granted restraining an elected member from performing his functions because that will create vacuum and difficulties for performance of public duties by public representatives". In the case of Abdul Wahid and another election of one Din Muhammad as a member of a Union Council, against special seat of peasants, had been challenged. While refusing to restrain him from performing his functions as an elected officer‑holder, it was noted that what difference, if any, would his participation make in connection with ensuing election of Chairman of the. Union Council was immaterial. In this connection, Mr. Justice (now Hob'ble the Chief Justice) Abdul Shakurul Salam observed as follows:‑ "Therefore, how and in what manner Din Muhammad has got himself elected, is a matter which is distinct and separate and can be determined in other forum or final decision by this Court in the present proceedings. At the moment, he (Din Muhammad) is a duly notified member of the Union Council. Except as regards what he did to his opponent, there is no inherent ineligibility in the respondent No.l to hold office. By his exercising the powers of that office, the petitioners cannot be said to suffer an irreparable loss or grievous injury. The hot contest has come about because, there is going to be an election for the Chairmanship tomorrow. There is no way of saying that the participation of the respondent No.l will materially affect the. result of the election tomorrow. It is equally possible that it may not do so at all either by defeat of his chosen candidate, or, the latter getting overwhelming majority without making his (Din Muhammad's) vote any difference. Result of elections like that of writings in destiny are unpredictable and uncertain. Therefore, it cannot be said that the petitioners will suffer irreparable loss or grievious injury if the respondent No.l performs his functions as a member of the Union Council. The judgment referred to by the learned counsel for the respondent No.l make it quite clear that office‑holders are not to be restrained from performing their functions without final judgment and no interim injunction should be issued." Following with respect, the view of Mr. Justice (now the Hon'ble Chief Justice) Abdul Shakurul Salam, I hold that due to the said two respondents "exercising the powers" of the office, the petitioner "cannot be said to suffer an irreparable loss or grievous injury". On the other hand, National Assembly" as a whole will suffer irreparable loss" of two members who are to "speak for a special constituency". This means that third condition for issuance of temporary injunction is also not satisfied in the instant case.

18. As for the case of Mahmood Azam Farooqi relied upon by learned counsel for the petitioner, its facts are materially different from those of the case in hand. In the cited case, the appellant, Mahmood Azam Farooqi, was declared to be elected as a member of the National Assembly. On this, election petition was filed by respondent No.l (Maulana Muhammad Shafi Okarvi) against the appellant (Mahmood Azam Farooqi) and 9 others. It was contested by the appellant. Plea raised by respondent No.4 in that case was that the entire election should be set aside. The Election Tribunal allowed the petition and its order was challenged in appeal. Before a Division Bench of Sind High Court, which heard the appeal, "all the learned counsel pressed for the remand of the case to the Election Tribunal with the prayer that, pending the remand, their candidates should be permitted to sit in the National Assembly". During the hearing of the appeal, the Court "permitted the first respondent to take his seat in the National Assembly, subject to any further orders" the Court "might pass". It was complained before the Court that although recounting of the votes was asked yet the Tribunal did not allow the same. It was also found by the learned Court that the plea of respondent No.4 that the entire election should be declared void due to malpractices alleged by him was not properly examined. The Court, therefore, remanded the case to the Election Tribunal and recalled its interim order permitting respondent No.l to sit in the National Assembly pending fresh decision by the Election Tribunal.

19. It will, therefore, be observed that in the case of Mahmood Azam Farooqi, having pressed for the remand of that case to the Election Tribunal, all the learned counsel therein prayed that their candidates may be permitted to sit in the National Assembly pending fresh decision by the Election Tribunal. The Court, however, did not allow any one to do so. Moreover, in the case under report the entire election was sought to be declared void which is not true of the case in hand. It is also not the plea of learned counsel for the petitioner that notification declaring the appellant, Mahmood Azam Farooqi, as a member of the National Assembly had not been rescinded by the time of the decision of his appeal. As against this, notification of respondents Nos.9 and 22 before me, still holds the field and they are functioning as members of the Assembly. Further, the interim arrangement allowing sitting of the appellant in the Assembly was made by the Court and it was also undone by it. Anyhow, the case of Mahm.ood Azam Farooqi being of a very peculiar nature cannot be equated with the present case. Also, with most perfect sentiments of respect, I regret my inability to follow dictum in the case of Mahamood Azam Farooqi recorded by a learned Division Bench of another High Court, in preference to three Division Bench rulings of the Lahore High Court in which it has been held that "elected office‑holders are 1 not to be restrained from performing the functions without final judgment and no interim injunction should be allowed". I am, therefore, not inclined to grant stay order to the petitioner on the basis of the case of Mahmood Azam Farooqi which, as already explained, is distinguishable on facts.

20. Learned counsel for the petitioner also made reference to following observations appearing in the case of Ch. Abdul Qadir, cited by him:‑ "We have already held in the case of Ch. Muhammad Rafiq v. Election Tribunal W.P. No.4397 of 1983, decided on 22‑10‑1983 that `it is well 'established that elected office‑holders are ordinarily not to be restrained from performing their functions without final judgment and interim injunction in this respect is to be sparingly issued. From this we do not mean to hold that Election Tribunal has no jurisdiction to grant injunction if the circumstances of the case or the law warrants the grant of interim injunction'. The reluctance of the Courts to interfere at that stage in election matters is due to the fact that in case injunction is granted restraining an elected member from performing his functions, it would create a vacuum and difficulties for performance of public duties by public representatives. The choice of the electors cannot be set at naught except for very obvious causes or until the time that the assertions made, that the election had been procured through malpractices or by violating the law has been established. A perusal of the impugned order establishes that applying this very principle Tribunal has refused to grant the temporary injunction. The refusal so made cannot be said to be suffering from any patent illegality or defect of jurisdiction." These observations also inter alia make a mention of malpractices which are not alleged in the instant case. It is noteworthy that in Ch. Abdul Oadir's case also view expressed in the case of Abdul Wahid and another has been reiterated by this Court. In Ch. Abdul Qadir's case the interim injunction was refused, and as indicated above, order in this regard was not interfered with. The case of Ch. Abdul Qadir, therefore, does not advance the plea of the petitioner. As for the jurisdiction of this Tribunal to issue the temporary injunction, it, undisputedly, vests in it.

21. Now, I advert to the conduct of the petitioner qua the stay matter. As pointed out by learned counsel for respondents Nos.9 and 22, he did not bother to ask for a stay order when respondents Nos.9 and 22 took part in the proceedings of the National Assembly for about one year before his making of the present petition in this behalf. Those proceedings related to election to the seats reserved for women, vote of confidence in favour of the Prime Minister, passing of annual budget, etc. He did not ask for any injunction even after the report of the Committee was made known to him on 13th September 1989. It was after about 1‑1/2 months of his knowledge of the report that he thought of keeping respondents Nos.9 and 22 out of the National Assembly when no confidence motion was tabled against the Prime Minister. No explanation whatsoever has been offered for the inaction of the petitioner for such a long time. It is amazing that he did not ask for stay order on 25th October 1989 when the election petition was being heard and many of the parties anti their learned counsel were present before me. It was after the adjournment of the election petition that when the Court time was over that he moved petition for grant of temporary injunction. If he had asked for interim relief when the election petition was thing heard, his plea could be heard and disposed of quickly leaving enough time for the parties dissatisfied with my order in this behalf to have recourse to other remedies open to them under law. He, however, decided to act leisurely which created hardships, if not embarrassment for others. Such indolence should have been avoided by the petitioner who is seeking a discretionary relief.

22. In result, I hold that although I have jurisdiction to allow the stay order asked for by the petitioner yet he has not been able to satisfy all the three conditions which are required to be fulfilled for securing such an order. His failure to ask for such interim relief for about one year is another factor which makes things difficult for him. I am, therefore, constrained to refuse the stay order and dismiss this petition with no order as to costs. M.B.A./41/E Petition dismissed.