SHAHID HAMEED CHANDIA Versus The PRESIDING OFFICER ELECTION TRIBUNAL, D.G. KHAN DIVISION
ANWAARUL HAQ PANNUN, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has called in question the order dated 24.10.2018 passed by respondent No.1/Election Tribunal, D.G. Khan Division appointed under section 39 of the Punjab Local Government Act, 2013 (hereinafter to be called as Act) whereby a miscellaneous application moved before the learned Election Tribunal by respondent No.2, seeking recount of the votes through a local commission has been accepted.
2. Briefly, stating the facts of the case are that respondent No.2 herein, instituted an election petition under section 38 of the Act read with Rule 62 of the Punjab Local Government (Conduct of Elections) Rules, 2013 (hereinafter to be called as Rules) calling in question the notification issued under section 37 of the Act, of respondents Nos.2 and 7 by the Election Commission, as Returned Candidates i.e. Chairman and Vice-Chairman, Municipal Corporation, D.G. Khan respectively on multiple grounds with the following prayer:--
3. Contesting written statements were filed refuting the allegations and averments contained in the Election Petition. The learned Election Tribunal, in view of divergent pleadings of the parties, on 01.08 2018 proceeded to frame the following issues:- i) Whether the return of respondents Nos.1 and 7 is outcome of corrupt practice on the part of the election staff under the influence of local MNA? OPP ii) Whether the respondent No.1, in connivance with the polling staff, got stolen official stamps from some of polling booths for illegal use? OPP iii) Whether the Presiding Officer did not allow the polling staff to do their job and appointed the polling staff of his own choice? OPP iv) Whether the respondent managed to purchase ballot papers? OPP v) Whether the petitioners were not provided copies of election forms by the RIO, if so its effect? OPD vi) Whether the petition is not maintainable in its present form as the petitioner has not annexed necessary documents with it? OPR1 vii) Whether the petition is liable to be dismissed being time barred? OPR1 viii) Whether the election petition is based upon false and frivolous allegations as such liable to be dismissed with special costs? OPR1 ix) Relief.
4. The learned trial court had recorded the statements of Muhammad Saleem Khan Tareen (PW-1), Mst. Shazia Bano (PW-2) and Atha Abbas (PW-3). On 03.09.2018 an application was moved by respondent No.2 for summoning of one Ayesha Siddique, APO, which was replied by the contesting respondents and the same was yet to be decided, when on 03.10.2018 respondent No.2 filed another application seeking recount of the ballot papers, through a local commission, which also was replied by the petitioner, however, vide impugned order dated 24.10.2018 the learned Election Tribunal was pleased to accept the application of respondent No.2. The operative part of the impugned order is reproduced as under:-
"The application is, therefore, accepted and rechecking/ recounting of the ballot papers is ordered to be done through a local commission Mr. Tanveer ul Hassan, District Election Commissioner, Dera Ghazi Khan, is appointed as local commission who shall conduct the proceedings on 29.10.2018 at District Election Commissioner Office. Fee of local commission is fixed as Rs.40,000/- which shall be paid by the petitioners to the local commission before start of proceedings of recounting against a receipt. Parties are directed to join the proceedings at 10.00 a.m. sharp on 29.10.2018 in the office District Election Commissioner Dera Ghazi Khan. The local commission shall submit his report on or before 31.10.2018." hence this petition.
5. At the very outset, learned counsel for the respondents while relying upon the ratio of law laid down in Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233), and an unreported judgment titled Imam Bakhsh and another v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1138/2016) and Sajid Hussain Khan v. Presiding, Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1139/2016) has questioned the maintainability of this writ petition on the ground that since the impugned order passed by the learned Election Tribunal is interlocutory in nature, the same cannot be challenged through writ petition, therefore, this petition is not maintainable, yet the learned Tribunal, has to pass a final order, and the petitioner, has a remedy for attacking the impugned order also by means of an appeal provided under section 46 of the Act against the final order, which is a statutory right.
6. Learned counsel for the petitioner while relying upon the case-law reported in Mst. Ashifa Riaz Fatyana v. Mst. Nazia Raheel and 10 others (2011 CLC 48), submits that respondent No.2, has to make out a case for recounted of the ballot papers after producing the requisite evidence, justifying the passing of order of recount by the Election Tribunal, also relied upon the case law reported in Chaudhary Pervez Elahi v. Muhammad Faiz Tamman and 2 others (2010 CLC 1490) to contend that recount could not be ordered in routine, factum of non-checking of votes properly, at the time of consolidation of results by the Returning Officer must be proved through evidence. In order to further strengthen his above submissions, the learned counsel for the petitioner has referred to Kanwar Ijaz Ali v. Irshad Ali and 2 others (PLD 1986 SC 483) and submits that the order impugned has been passed by the Election Tribunal in violation of ratio laid down by superior courts, which is binding upon the Election Tribunal under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973, the impugned order is void, ab-initio, hence liable to be struck down. Interestingly, he also relied upon the case of Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233) to meet the objection of maintainability.
7. Heard. Record perused.
8. The question, requiring its determination before this Court, in view of the arguments of both the learned counsel for the parties, noted above, is whether a writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable against, an interlocutory order passed by an Election Tribunal while trying an election petition or not? It will be advantageous to cite Section 39(4) and Section 46 of the Act, respectively hereunder:--
Section 39 (4) of The Punjab Local Government Act, 2013:
(1) .
(2) .
(3) .
(4) The Election Tribunal shall decide an election petition within one hundred and twenty days from the date of filing of the election petition.
Section 416 of The Punjab Local Government Act, 2013:
Appeal against the orders of Election Tribunal.--
(i) Any person aggrieved by a final order of an Election Tribunal may, within thirty days of the communication of such order, prefer an appeal to the Lahore High Court.
(ii) The Lahore High Court shall decide an appeal preferred under subsection (1) within three months.
(Emphasis supplied).
9. The bare verbatim of the above noted provisions of law clearly indicate that the legislature, in its own wisdom, has enacted the above provisions, giving therein a time line, with an underlying object that the election disputes may be decided expeditiously and if the challenges are allowed to be thrown against the interlocutory orders passed by the Election Tribunal, the object of expeditious disposal and decision of the election petition may be defeated. It is well settled principle for interpretation of law that the Courts should interpret the law in furtherance of intention of legislature. In order for High Court to intervene in its Constitutional jurisdiction in an interlocutory order of the Election Tribunal, the order must not only be patiently illegal but if not struck down will leave the aggrieved party without remedy, by attaining the order finality. The legal position which emerges is that the interlocutory order passed by the Election Tribunal cannot be questioned in Constitutional jurisdiction until the same is patiently illegal and the same for some reasons cannot even be challenged in the form of statutory remedy conferred upon the parties aggrieved of the order on the conclusion or final disposal of the election petition. If the outcome of an election petition goes against a person/party who is also aggrieved of an interlocutory order passed during the proceedings, besides impugning the main judgment, he is entitled to assail the very legality of the interim order, and the consequences that flow from it. If the order is patently illegal and leaves a party without any remedy then, an interlocutory order may be challenged for exercising extra ordinary Constitutional jurisdiction of the High Court. The Hon'ble Supreme Court has in the recent past held in authoritative and conclusive judgment reported Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others (2015 SCMR 233) that interlocutory orders are not amenable to the jurisdiction of the High Court through Constitutional jurisdiction as a remedy by way of an appeal under section 67 of the Act (Representation of the People Act (LXXXV of 1976)) was available to the aggrieved persons. The ratio in Muhammad Raza Hayat Hiraj's case mentioned hereinabove that an interlocutory order passed by Election Tribunal in an election petition cannot be impugned, by invoking Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was, in fact laid in a case arising out of the matters pertaining to the election petitions, which were pending before the Tribunals constituted/appointed under the provisions of (Representation of the People Act (LXXXV of 1976). I have been able to lay my hand to an unreported judgment passed in Imam Bakhsh and another v. Presiding Officer, Election Tribunal, Dera Ghazi Khan and others (in C.P. No.1138/2016) arisen out of election petitions, under the Punjab Local Government Act, 2013, by the Hon'ble Supreme Court of Pakistan wherein in para-5 of the judgment a complete answer has been given which was under contemplation of this Court.
"We have heard the learned counsel and have gone through the record with their able assistance. The Act governs the subject and attends to the filing of election petitions (section 38), constitution of election tribunals (section 39), powers vesting in election tribunals (section 40) and the decisions of election tribunals (section 41). Section 46 of the Act, which provides for an appeal against final order of an election tribunal.
Section 46 of the Act provides that against the, "final order of an Election Tribunal" an appeal can be preferred to the High Court, significantly, it does not provide for any remedy against an interlocutory order. Mr. Babar Awan contends that since the statute does not permit an appeal against an interlocutory order, therefore, the constitutional jurisdiction of the High Court under Article 199 of the Constitution can be invoked. I cannot bring myself to argue with the learned counsel because it will not only defeat the specific language of the Act but would also unnecessarily delay the disposal of election petitions the early disposal of which the legislature has mandated by stipulating in subsections (2) of section 46 that appeals shall he decided within period of three months. The tenure of elected persons is of a limited duration therefore, the delay decision of election disputes must not be thwarted, if challenges are permitted to be made to interlocutory orders, through petitions filed before the High Court which may eventually also come before this Court, then the remedy of an election petition and an appeal will be rendered illusory because in all probability the term of the person whose election has been challenged would have been completed or it would be close to completion. In any event a three member Bench of this Court in the case of Muhammad Raza Hayat Hiraj (above) held (paragraph 36, page 253) that;
"It follows from the above discussion that the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its constitutional jurisdiction as the petitioners before the Court had a remedy available to them by way of appeal under section 67 of the Act after disposal of the election petitions. The impugned judgment of the Lahore High Court dated 28.2.2014, therefore, is maintained and similar opinion of the High Court of Sindh in Ali Gohar Khan Mahar's case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar's case (supra) is affirmed."
11. Since the petitioner, has a remedy, for questioning the impugned order, after passing of final order in the election petition by way of an appeal, under section 46 of the Act, hence, it cannot be said that the petitioner is rendered remediless.
12. In the light of what has been discussed above, this petition is dismissed being not maintainable.
MH/S-65/L Petition dismissed.