ZAHOOR Versus ELECTION TRIBUNAL, VEHARI and others,

Civil Petition No,2988-L of 2003, decided on 9th July, 2004.

Authored by Hamid Ali Mirza. Result: Leave refused.

Summary

This civil petition for leave to appeal challenged a Lahore High Court judgment that dismissed a writ petition against an Election Tribunal's order. The core legal question was whether the Election Tribunal acted illegally or capriciously by refusing an adjournment request, thereby denying the petitioner an opportunity to cross-examine witnesses. The Supreme Court upheld the High Court's decision, finding that the Election Tribunal had acted within its discretion. The record showed the Tribunal had provided ample opportunity for the petitioners to secure counsel and cross-examine witnesses, but the petitioners failed to do so. Furthermore, the Court noted that the petitioners had previously obtained numerous adjournments to protract proceedings. The holding established that adjournment is not a right but a matter of judicial discretion, and constitutional jurisdiction cannot be invoked to interfere with a tribunal's procedural discretion unless it acts without or in excess of jurisdiction. As no substantial question of law was involved and the Tribunal's actions were neither illegal nor capricious, the petition for leave to appeal was dismissed.

Questions settled in this judgment

Is an adjournment a matter of right for a party in legal proceedings?
Under what circumstances can a High Court exercise constitutional jurisdiction to interfere with the procedural orders of a subordinate tribunal?
Can a party claim illegality when they fail to avail themselves of an opportunity provided by a tribunal to cross-examine witnesses?

election petitionadjournmentjudicial discretioncross-examinationconstitutional jurisdictionwrit petitionleave to appeal

HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against the judgment dated 21-11-2003 in Writ Petition No,5071 of 2003 passed by learned Judge in Chambers, of the Lahore' High Court, Lahore, whereby the said writ petition was dismissed.

2.Facts of the case need not be reiterated as the same have been given in the impugned judgment as well as in the memo. Of petition.

3.Contention of learned counsel for the petitioner is that there was legal justification on the part of the petitioner to get the adjournment in view of ailment of the petitioner's learned counsel.

4.We do not find merit and substance in the said contention. Learned Judge in Chambers, in paras.5, 6 and 7 has observed:--

"(5) It is not denied by the petitioners, counsel that the date on which evidence was recorded was fixed for that purpose. A perusal of the impugned order reveals, that time was also granted to the writ petitioners, for fetching their counsel or for engaging a new counsel and the case was kept pending from 8-30 a.m. To 3-00 p.m. On the second call writ petitioners, were present along with two newly appointed counsel. Statements of the witnesses were recorded in their presence. Duty of the Tribunal was to provide an opportunity to the writ petitioners, and their counsel to cross- examine the witnesses which was admittedly provided; the writ petitioners, and their counsel did not cross-examine the witnesses in spite of opportunity provided. In the said circumstances no illegality was committed by the Election Tribunal in recording the aforesaid fact that in spite of opportunity provided witnesses were not cross-examined by the writ petitioners, and their counsel. Adjournment could not be claimed as of right and the trial Court had the discretion to grant or refuse the same.

(6)In view of the fact that one of the witnesses was summoned from Karachi and sufficient time was given to the writ petitioners, to arrange for their counsel and also in view of the fact that it was in the knowledge of the writ petitioners, that the said date was fixed for recording evidence of the respondents, refusing of adjournment by the trial Court cannot be deemed as illegal or capricious.

(7)Constitutional jurisdiction can only be exercised if the subordinate Court/Tribunal exceeds its jurisdiction or acts without jurisdiction. The Election Tribunal had the jurisdiction to allow or to refuse the adjournment, it had provided opportunity to the petitioners, to cross-examine the witnesses which was not availed by them and their counsel therefore, there is no merit in this writ petition.'

We have gone through the entire record. We find that at least 35 dates of hearing were obtained on one pretext or the other just to protract and delay the proceedings of the case so that the matter could not reach the final decision and the term of the returned candidate should stand completed. We find no factual or legal infirmity with the impugned judgment, therefore, no case for grant of leave to appeal is made out considering also that no substantial question of law is involved in this petition, consequently leave to appeal is declined and the petition is dismissed.

Cited by 2 cases

Muneer Ahmed Baluch & others vs Khuda Bux Lashari & others 2022 SHC 168
Mian Muhammad Riaz and other vs Mst. Marhaba and others 2020 MLD 1436, 2020 PHC 200

Judges on this bench

Hamid Ali Mirza1,100 judgments
Falak Sher933 judgments