RASHIDA YAQOOB Versus ELECTION TRIBUNAL

ORDER

IJAZ UL AHSAN, J.--- Through this constitutional petition, the petitioner seeks setting aside of order dated 26.03.2015 passed by the learned Election Tribunal, Faisalabad/respondent No.1. Through the impugned order, the learned Election Tribunal has held that in case the petitioner does not appear for recording of her evidence on 02.04.2015, the Tribunal would consider to proceed to suspend her membership of the Provincial Assembly.

2. Brief facts of the case are that various election petitions including Election Petition titled "Muhammad Ahmad Ludhyanvi v. Rashida Yaqoob and others" (Election Petition No.119/2013) are pending before respondent No.1. Proceedings in the matter are continuing and it appears that the process of recording of evidence is being undertaken. During the course of proceedings, the learned Election Tribunal has passed the impugned order, which has been challenged through this petition.

3. The learned counsel for the petitioner submits that the order in question is illegal, violative of the due process of rights of the petitioner and arbitrary. He submits that the Election Tribunal travelled beyond its powers under the Representation of People Act, 1976 ("ROPA") in passing the impugned order which even otherwise is illegal. He maintains that the same is liable to be set aside.

4. I have heard the learned counsel for the petitioner at considerable length. It is an admitted fact that the proceedings before the Election Tribunal are still pending. The order impugned through this petition is admittedly interim/interlocutory in mature as no final decision in the Election Petition has been made by the Tribunal. The main question, therefore, at this stage requiring determination by this Court is whether the order dated 26.03.2015, which is admittedly an interim order, can be challenged by way of a constitutional petition. The answer to the said question has already been furnished by this Court in the following terms in its judgment rendered in W.P. No.27917-2013 dated 18.11.2014: "a. The present petition is directed against an interim order. The proceedings before the Election Tribunal are required to be completed expeditiously in order to ensure that the matters do not get unreasonably delayed. One of the parties is invariably interested in delaying and frustrating the proceedings in order to obstruct and hamper finalization of the matter. The policy of law which has gradually developed over a period of time is that interim orders of election tribunals should not be interfered with in exercise of constitutional jurisdiction of this Court. The Tribunal should be allowed to complete the proceedings within reasonable time so that on completion of the process, any of the aggrieved parties may approach the Hon'ble Supreme Court of Pakistan where the matter can authoritatively be concluded one way or the other. It is now well settled that interim orders passed by the Election Tribunal cannot be challenged in the constitutional jurisdiction of this Court. In Election Commission of Pakistan v. Javed Hashmi (PLD 1989 SC 396), the Hon'ble Supreme Court of Pakistan held as follows:-

"Accordingly, what is intended to be achieved by the exercise of the power under Article, 199 is achieved by the exercise of the appellate power by the Supreme Court in an appeal against the decision of the Tribunal not at an intermediate stage but only after the election is over. There is, thereafter, no scope of any interference by the High Court under Article 199 of the Constitution to interfere with the process of election at an intermediate stage or question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election." b. The rule laid down in Javed Hashmi's case has consistently been followed. In this regard reference can be made to Sh. Rashid Ahmad v. The Election Tribunal Comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court Lahore and another (PLD 1993 Lahore 791), Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328), Dr. Sheela B. Charles v. Election Tribunal and another (1995 CLC 344), Allahdino and another v. Ghulam Mustafa and 6 others (2010 YLR 346) and Muhammad Naseer Ahmad v. Additional District Judge and others (1999 CLC 1925), c. The question of maintainability of the constitutional petition against interim orders passed by the Election Tribunal also came up for hearing before a Full Bench of Sindh High Court in C.P. No.3248 of 2013. The Full Bench of Sindh High Court after an exhaustive examination and discussion of the previous case law on the subject came to the following conclusion:-

"In view of the foregoing discussion, we conclude that in the specific context of an election tribunal constituted under section 57 of the 1976 Act and trying an election petition presented under section 52, a petition under Article 199 to challenge an interlocutory order is not maintainable. The matter is covered by the general rule laid down in Javaid Hashmi and does not come within the exception stated in Ghulam Mustafa Jatoi, and restated in Muhammad Nawaz Sharif. The interlocutory orders impugned by means of the present petition can only be challenged in appeal before the Supreme Court under section 67(3) at the appropriate stage. In view of this conclusion, we consider it inapposite to consider the submissions made by learned counsel on the merits of the impugned orders, or to dilate upon the statutory provisions involved. The matter, in our respectful view, properly lies in the domain of the Supreme Court." d. The issue of maintainability of constitutional petition against interim orders passed by Election Tribunals also came up before a Full Bench of the Lahore High Court in W.P.No.11155 of 2013. Vide judgment dated 28.02.2014, the Full Bench also came to the conclusion that interim orders passed by the Election Tribunal were not amenable to interference in exercise of the constitutional jurisdiction of this Court. The learned full bench of this Court inter alia gave the following reasons for its conclusions:- "i) that post election disputes to a House or a Provincial Assembly cannot be questioned by invoking jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, as it is a sealed territory for this Court; ii) that when a thing is required to be done in a particular manner, it should be done in that way alone and otherwise whole proceedings would be void; iii) that the intention of Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 read with provisions of ROPA, is that election disputes should only be referred to the Election Tribunals through Election Petitions; iv) that High Court cannot sit in appeal over the decision/order of the Election Tribunal or statutory authorities and substitute their decision with its own; v) that appeal is a substantive right in which the whole dispute including an order on a preliminary objection of law and fact is reopened and re-examined. If by exercising jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, this Court interfere with the interlocutory order of the Tribunal, then this Court would be encroaching upon the rights of aggrieved person to approach the Hon'ble Supreme Court of Pakistan through a direct appeal. vi) that the intention of the law is that election disputes should be resolved through uninterrupted expeditious trial. This intention of legislature cannot be negated by entertaining constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 against interlocutory/interim orders of the Election Tribunal. vii) that ROPA, which excludes a right of appeal from the interim orders of the Election Tribunal, cannot be bypassed by brin[g]ing under attack such interim orders in constitutional jurisdiction of this Court. Party affected has to wait till it matures into a final decision and then to attack it in the proper exclusive forum, that is, the Supreme Court. viii) that the orders at the interlocutory stages should not be brought to the High Court to obtain fragmentary decisions, as it tends to harm the advancement of fair play and justice, curtailing remedies available under the law, even reducing the right of appeal. ix) that the Parliament and Provincial Assemblies of Pakistan open their doors to those persons who are sagacious, righteous, honest and Ameen and thus it is imperative to remove any shadow of doubt on the character of the representatives of the people at the earliest. To achieve this object a special law, that is, ROPA, has provided a speedy mechanism which cannot be allowed to be deflected by exercising jurisdiction under Article 199 against interlocutory/interim orders of Election Tribunal."

Being a judgment of a Full Bench, the same is binding on this Court. e. Admittedly the petitioner has not been left without a remedy. The petitioner is at liberty to argue his case before the Tribunal on all issues including the matter of dismissal of the petition on account of an allegation that the petition as well as its annexures have not been verified in terms of section 55(3) of the ROPA. Further, in case an adverse final order is passed against him, the petitioner will be at liberty to challenge the same before the Hon'ble Supreme Court of Pakistan by way of appeal."

5. The matter stands authoritatively and finally clinched by the honourable Supreme Court of Pakistan in its recent judgment reported as Muhammad Raza Hayat Hiraj v. The Election Commission of Pakistan and others (2015 SCMR 233) in which while upholding the judgments of the Full Bench of this Court as well as that of the Hon'ble Sindh High Court ibid it has been held that interlocutory orders passed by the Election Tribunals were not liable to be interfered with by this Court in exercise of its constitutional jurisdiction. Aggrieved parties before the Election Tribunal have a remedy available to them by way of appeal under section 67 of the Representation of the People Act, 1976 upon the election petition being finally decided. The case as set up by the petitioner is fully covered by the principles of law laid down in the aforenoted judgment of the honourable Supreme Court of Pakistan.

6. In view of the foregoing, I find that this petition is without any merit. It is accordingly dismissed.

MH/R-20/L Petition dismissed.