JUSTICE MIAN HAMID FAROOQ (ELECTION TRIBUNAL).---Shaikh Amjad Aziz, the applicant, through the instant application, filed under section 12(2), C.P.C. Challenges the legality of judgment, dated 16-2-2004, whereby this Tribunal accepted respondent's Election petition (E.P. No.59 of 2002), with the prayer that the said. Judgment be recalled, as the same was obtained by the respondent through fraud and misrepresentation.
2. Facts of the case, in brief, are that the parties (Sh. Amjad Aziz and Haroon Akhtar Khan) contested General Elections for the seat of Member Punjab Assembly from constituency PP-156 Lahore-XX, the applicant was. Declared as returned candidate and notification dated 20-10-2002, qua his success, was issued by the Election Commission of Pakistan. The respondent felt discontented with the result and filed the Election petition (E.P. No.59 of 2002) under section 52 of Representation of the People Act, 1976, before the Honourable Chief Election Commissioner, who entrusted it to this Tribunal. The principal ground, agitated in support of the said election petition, was that the applicant was not a graduate at the time of filing the nomination papers and that he possessed a forged B.Sc. Degree. The election petition was contested by the applicant through filing the written statement. This Tribunal framed the issues, recorded the evidence of the parties, after hearing them accepted the election petition, notification, dated 20-10-2002 was set aside, election of the applicant was declared null and void and Haroon Akhtar Khan was declared elected, vide judgment, dated 16-2-2004. The applicant challenged the said judgment, by filing the appeal (Civil Appeal No.44 of 2002), before the Honourable apex Court of the country. During the pendency of the appeal, the applicant choose to file the application, under discussion; with the prayer that the judgment, dated 16-2-2004, "being influenced by the respondent/petitioner by misrepresentation and manoeuvring circumstances of the case", may be recalled. Later on, applicant's afore-noted appeal was partially allowed by the Honourable Supreme Court of Pakistan and it, while maintaining disqualification of the applicant and upholding findings of this Tribunal on the issue that the applicant was not a graduate, his candidatures to contest the general election suffered from major defect and he was not qualified to be elected and chosen as member of the Provincial Assembly, set aside the election as a whole of' the said constituency and was declared void and ordered for holding of fresh election, vide judgment, dated 20-5-2094. The instant application has been resisted by the respondent, through filing its reply, inter ilia, supporting the judgment of this Tribunal and also relying upon the judgment of the Honourable Supreme Court of Pakistan.
3. Learned counsel for the applicant, in support of the application in hand, has contended that University Authorities committed fraud, during the proceedings in the election petition, as it did not produce relevant record at appropriate stage due to the mala fide efforts of the respondent, who in collusion with the University Authorities persuaded it not to produce the correct and genuine record. He has submitted that certified copies, Gazette and applicant's form were not under the control of the applicant, therefore, he could not produce those documents at the relevant stage. He has further submitted that the record of the case was manipulated at the behest of the respondent so as to establish that the applicant is not a graduate. He summed up his arguments by submitting that notwithstanding the judgment passed by the Honourable Supreme Court of Pakistan, this Tribunal can interfere in the matter in exercise of powers under section 12(2), C.P.C. He has relied upon Mst. Fehmida Begum v. Muhammad Khalid and another 1992 SCM R 1908; Bashir Ahmad v. Government of Pakistan through Ministry of Defence and another 1993 SCMR 117; Government of Sindh and another v. Ch. Fazal Muhammad "and another PLD 1991 SC 197; Province of Punjab through Collector, Sialkot v. Muhammad Irshad Bajwa 1999 SCM R 1555; Wazir Khan and 8 others v. Sardar Ali and 25 others 2001 SCM R 750 and Muhammad Yousaf through Legal Heirs and others v. Noor Din and others PLD 2002 SC 391. Conversely, the learned counsel for the respondent, while refuting the said contentions and relying upon the judgments of this Tribunal and Honourable Supreme Court of Pakistan, has stated that the present application, under section 12(2), C.P.C., is not competent before this Tribunal, as final judgment was rendered by the Honourable Supreme Court of Pakistan. He referred to certain portions from the judgment dated 20-5-2004, passed by the Honourable Supreme Court of Pakistan and vehemently stated that in view of the categorical findings given by the Honourable Supreme Court, which are binding on all the organs of the State, this Tribunal is handicapped to interfere in the matter. He, while referring to para.6 of the judgment, dated 20-5-2004, has asserted that the applicant did not raise the grounds before the Honourable Supreme Court, which have now been agitated by him. In rebuttal, the learned counsel for the applicant has reasserted that as the record has been manipulated, therefore, the application, under section 12(2), C.P.C. Is competent before this Tribunal. He relied upon the judgment reported as Muhammad Yousaf through Legal Heirs and others v..Noor Din and others PLD 2002 SC 391.
4. I have heard the learned counsel for the parties and examined the available record.
5. Firstly dealing with the preliminary objection, qua the maintainability of the application in hand, raised by the learned counsel for the respondent. Honourable Supreme Court of Pakistan in the case of Muhammad Yousaf (ibid), relied upon by the learned counsel for the applicant, has laid the parameters for filing application under ,section 12(2), C.P.C. With reference to final judgment. It would be appropriate to reproduce para.4 of the judgment, which reads as follows:-- "The law on the subject now stands clarified and settled in view of the dictum laid down in Khawaja Muhammad Yousaf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCM R 1516 that if the Supreme Court merely reaffirms a judgment or order of a High Court, by refusing leave to appeal the final judgment in terms of section 12(2), C.P.C. Will be of the High Court and not of the Supreme Court and if the Supreme Court reverses a judgment of a High Court and records a finding on question of fact or law contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purpose of section 12(2), C.P,C. The same view was reiterated in Abid Kamal v. Mudassar Mustafa and others 2000 SCM R 900."
It flows from the above that if the august Supreme Court reaffirms the judgment or order of a High Court by refusing leave to appeal, the final judgment will be of the High Court and if Supreme Court reverses judgment of High Court and records a finding contrary to what was held by the High Court, the final judgment or order would be of the Supreme Court for the purposes of section 12(2), C.P.C.
6. In the instant case, respondent's election petition was allowed by this Tribunal, election of the applicant from constituency PP-156 Lahore was declared null and void and Haroon Akhtar Khan was declared as returned candidate. On an appeal, the Honourable Supreme Court of Pakistan, while maintaining the findings of this Court on the first portion of the judgment, reversed the findings on the later portion and disposed of the appeal with the directions to hold fresh elections in the constituency. Placing the yardstick, laid down in the ease of Muhammad Yousaf (supra), in juxtaposition with the facts and circumstances of the present case, it leads to the conclusion that although first portion of the judgment of his Tribunal was maintained by the Honourable Supreme.
Court of Pakistan yet it reversed the judgment of this Tribunal after recording findings on question of law contrary to what was held by the Tribunal and, therefore, to my mind, the final judgment or order is of the Honourable Supreme Court for the purpose of section 12(2), C.P.C. Objection raised by the learned counsel for the respondent is sustained. The application in hand deserves to be dismissed on this short ground.
7. Even if it be taken that the application under section 12(2), C.P.C. Against judgment dated 16-2- 2004, is competent before this A Tribunal the applicant has got no case on merits and his application, otherwise, deserves dismissal. This Tribunal, after framing the issues, recording the evidence of the parties and after hearing them, came to the conclusion that the applicant was not a graduate and, therefore, his election was declared null and void. Honourable Supreme Court of Pakistan, while discussing the evidence of the parties in paras.8 and 9 of the judgment, finally uphold the said findings of this Tribunal. It would be appropriate to reproduce para.10 of the judgment, passed by the Honourable Supreme Court of Pakistan which reads as under:-- "Having minutely scrutinized the entire evidence brought on record, learned Tribunal reached the conclusion that the appellant was not a graduate, his candidature to contest the general election suffered froth a major defect and he was not qualified to be elected or chosen as a member of the Provincial Assembly. The finding of the Tribunal is supported by irrefutable material on record and no contrary view is possible. Accordingly, we uphold this finding."
8. In view of these findings, if the application in hand is entertained by this Tribunal, it would amount to nullifying the judgment of the Honourable Supreme Court. Article 189 of the Constitution of Islamic Republic of Pakistan envisages that any decision of the Supreme B Court shall, to the extent that it decides question of law, be binding on all the Courts in Pakistan. It has further been held in the judgment reported as Syed Sajjad Hussain v. Secretary, Establishment Division, Cabinet Secretariat, Islamabad and 2 others 1996 SCM R 284, that law declared by the Honourable Supreme Court of Pakistan would bind all the Courts, Tribunals and also bureaucratic set up in Pakistan, as mandated by Articles 189 and 190 of Constitution of Islamic Republic of Pakistan, 1973.
9. There is another aspect of the case. The applicant, after the decision of the appeal, by the Honourable Supreme Court, through the present application, intends to start fresh round of litigation on the same subject-matter and on the questions which already stood decided by this Tribunal and affirmed by the Honourable Supreme Court of' Pakistan. The Honourable Supreme Court of Pakistan in a case reported as Abdul Majid and another v. Qazi Abbas Hussain Shah 1995 SCM R 429 has disapproved the said practice on the part of a section of litigants. It appears appropriate to reproduce paras.6 and 7 from the judgment of Abdul Majid (supra) which reads as follow:--- "A new trend is noticed that after conclusion of proceedings in this Court, aggrieved party either directly or through someone else starts fresh round of litigation on the same subject-matter with the intention of defeating the final adjudication by this Court which is disapproved and is to be discouraged with maximum emphasis. It is held by this Court that resort to civil litigation on questions already concluded in the previous round of litigation giving rise to fresh frivolous and vexatious litigation is not to be permitted to go unnoticed. Reference can be made to the case of Muhammad Shafi and another v. Attaullah and others 1984 SCM R 1124.
Article 189 of the Constitution envisage in unequivocal terms that decision of the Supreme Court deciding a question of law is binding upon all other Courts in Pakistan. This Court takes very serious view if the judgment of this Court is not implemented or it is implemented or its implementation is delayed by contrivance of frivolous 'litigation. In support of the proposition reference can be made to the case of Ashiq Hussain alias Muhammad Ashraf v. The State PLD 1994 SC 879."
10. The applicant, during the pendency of his appeal before the Honourable Supreme Court of Pakistan, filed the present application, on 22-4-2004, while the Honourable Supreme Court of Pakistan decided the matter on 20-5-2004, so when the appeal was heard and argued before the Honourable Supreme Court, the instant application was pending before this Tribunal. Despite that the applicant did not raise the pleas, agitated in the present application, which fact is evident from para.6 of the judgment of the Honourable Supreme Court of Pakistan. Para.6 of the judgment is reproduced below:-- "Before us only two points have been contested: Firstly, if the appellant possessed a bachelor degree in terms of Article 8-A of the Conduct of General Election Order, 2002 and. Secondly, if the principle of "throw away votes" could be invoked".
If the applicant was really aggrieved, in that case he should have agitated the grounds before the Honourable Supreme Court of Pakistan, which have now been raised before this Tribunal through this application. It cannot be argued that the applicant was not aware about these grounds, as the application in hand preceded the judgment of the Honourable Supreme Court of Pakistan.
11. As regards the judgments, relied upon by the learned counsel for the applicant, suffice it to say that there cannot be any cavil with the question of law laid down in these judgments, however, they are not applicable in the present set of circumstances of the case.
12. In the above perspective, the applicant has failed to make out a case within the parameters of provisions of section 12(2), C.P.C. And I am not persuaded to allow this application.
13. Upshot of the above discussion is that the present application is incompetent, not maintainable and devoid of merits, as well, thus, the same stands dismissed on both the counts, with no order as to costs.