MUHAMMAD IFTIKHAR MOHMAND vs JAVED MUHAMMAD and 3 others
This matter arises from a petition for leave to appeal filed against an interlocutory order of the Election Tribunal, Peshawar, dated 12-5-1997, which overruled the petitioner's preliminary objection regarding the maintainability of an election petition challenging the petitioner's election as a Member of the Provincial Assembly. The core legal question before the Supreme Court was whether a challenge to an interlocutory order of the Election Tribunal is maintainable at this stage and whether the petitioner would be precluded from raising the preliminary objection in a future appeal. The Supreme Court held that since the main election petition is still pending and an appeal is provided against the final decision, the petitioner is entitled to raise all available pleas, including the preliminary objection to maintainability, in an appeal against the final decision should it go against him. The principle laid down is that interlocutory orders passed by an Election Tribunal can be challenged in the ultimate appeal arising from the final decision of the Tribunal, and objections overruled at an interim stage do not become barred by time for the purpose of a final appeal.
- Whether an appeal is maintainable against an interlocutory order of an Election Tribunal before the final decision of the petition?
- Can a party raise a preliminary objection regarding the maintainability of an election petition in an appeal against the final judgment if such objection was earlier overruled at an interim stage?
- Does an interlocutory ruling by an Election Tribunal barring a preliminary objection become final and unchallengeable in subsequent appellate proceedings?
ORDER
' SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of learned Election Tribunal, Peshawar, dated 12-5-1997 whereby the learned Tribunal overruled a preliminary objection raised by the petitioner challenging the maintainability of the Election Petition No,49 of 1997 filed by respondent No,1 to challenge election of the petitioner as a Member of Provincial Assembly of North-West Frontier Province, PF-22 Mardan-5. The grant of leave in the above petition is opposed by respondent No,1, who has filed caveat in the case.
2. The only contention raised by Mr. Qazi Muhammad Anwar, the learned counsel for the petitioner before us, is that as the preliminary objection raised by the petitioner to the maintainability of the election petition has been overruled by the learned Election Tribunal, he will be debarred from raising this objection again in the appeal which may arise from the final decision of the Tribunal on the ground that such objection has become barred by time. The learned counsel for the caveator on the other hand, contends that the order passed by the Tribunal being only interlocutory in nature the appeal against such an order of the Tribunal is not maintainable before this Court. The learned counsel in support of the above contention has placed reliance on the case of Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others (PLD 1994 SC 867).
3. After hearing the learned counsel for the parties, we are of the view that as the main election petition is still pending before the learned Tribunal and an appeal is provided against the final decision of the Tribunal before this Court, the petitioner in the event of the final decision going against him, will be entitled to raise all the pleas available to him, in the appeal before this Court including the preliminary objection as to the maintainability of the petition which has been overruled by the learned Tribunal by the impugned judgment. With these observations, the petition stands disposed of, accordingly.
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