' IFTIKHAR MUHAMAMD CHAUDHRY, C.J.---Petitioners seek leave to appeal from the order dated 1st March, 2006 whereby interim relief has been granted to the respondents despite the fact that vide earlier order 28th December, 2005, a larger Bench had declined to grant interim relief to them.
Relevant para from the impugned judgment is reproduced herein below:-- "The contentious question of law involved in this petition, as was vehemently argued by the learned counsel for the petitioners, is as to whether the Tribunal through the impugned judgment after disqualifying the present petitioners could declare respondents 4 and 5 as returned candidates or fresh election should have been ordered to beheld.As this law point requires deliberation from all legal angles with reference to the case law on the subject, therefore, this petition is admitted to full hearing. The respondents may file written statements before the date of hearing. Be listed within one month.
Interim relief.-As we have admitted the writ petition on vital law point and that will have direct bearing on the end result of the matter and keeping, in view the impugned judgment passed hastily we could, therefore, suspend the operation of the impugned judgment subject to notice to the aggrieved party and other respondents."
2. Learned counsel contended that respondents instituted writ petitions Nos.2076-2079 of 2005 challenging the order dated 23rd December, 2005 passed by Election Tribunal Batagram declaring the election of the private respondents as Nazim and Naib Nazim, Union Council Hotel Bathkool, Tehsil Allai as void and declaring the petitioners as returned candidates for these offices, inter alia a prayer was made for its suspension restraining petitioners from casting their votes, in pursuance to the impugned order, in the election for the office of Naib Zilla Nazim and Naib Tehsil Nazim, scheduled to be held on 28th December, 2005 or pass any appropriate orders to meet the ends of justice. He further submitted that a learned Division Bench at Peshawar declined to grant relief by observing that final orders of the competent forum (Election Tribunal) were operative in the filed which provided rights and liabilities to the petitioners in relation to their respective seats of Nazim and Naib Nazim of Union Council and these rights were not to be disturbed until an adverse action was taken against them by a competent Forum/Court and it was concluded. "We, therefore, find no merit for granting interim relief to the petitioner in all the above writ petitions."
3. According to learned counsel, in the meanwhile the writ petitions were transferred from Principal Seat to the Branch Registry, Abbottabad and another learned Bench comprising two learned Judges, without receiving a separate request for granting stay order admitted petition on 1st March, 2006 and suspended the operation of the judgment of the Tribunal dated 23rd December, 2005, which had already been implemented and in pursuance of the same, the petitioners had taken over the charge of the offices of Nazim and Naib Nazim. He emphasized that in such a situation the said Division Bench had no lawful jurisdiction to set aside or ignore the earlier order passed by the equal number of the Judges on 28th December, 2005, particularly when no review was filed nor respondent had chosen to approach this Court for redressal of their grievance. It was also contended by him that in fact grant of relief by a Division Bench without request of the respondents tantamounts to passing an order without lawful authority and jurisdiction because a Division Bench had already exercised the jurisdiction in this regard.
4. On the other hand learned counsel for the respondent attempted to explain that in the earlier order dated 28th December 2005, only a request was made for restraining the petitioners not to exercise the right of casting votes in election of Zila Nazim and Tehsil Nazim whereas when the petitions were admitted, the operation of the order dated 23rd December was set aside as a whole, in pursuance whereof both the petitioners have been restrained from discharging their functions as Nazim and Naib Nazim, therefore, both the reliefs, according to his understanding, are different from each other, thus the court was competent to pass impugned order.
5. Learned Advocate General did not support the impugned order and contended that once the relief was declined on 28th December, 2005, the Court may have not granted stay order particularly when the Bench was of the same number of the Hon'ble Judges of the High Court.
6. We have heard learned counsel for the parties and have also gone through the contents of the writ petitions particularly the portion relating to the request in respect of the grant of interim relief.
In our considered opinion there was no distinction between the prayer pertaining to the interim relief because the respondents had prayed for the suspension of the order of the Tribunal dated 23rd December, 2005 to all intents and purposes. Therefore, once the learned Bench had declined to grant relief the only remedy available for the respondents was either for review of the order subject to maintainability of petition or to approach this Court if they had a case falling within the mischief of Article 185(3) of the Constitution of Islamic Republic of Pakistan, or of separate request by filing a separate application for interim relief on fresh grounds (1997 SCM R 1473, 1994 SCM R 1764) was competent in view of the law laid down in the reported judgments. We have noted that the impugned order dated 1st March, 2006 has been passed by the equal number of the learned Judges of the Peshawar High Court, Abbotabad Bench, without receiving a fresh written request from the respondents for grant of stay order and in this behalf it is to be noted that in pursuance of the order dated 23rd December, 2005 passed by the Election Tribunal, the petitioners have statedly taken over the charge of the office of Nazim and Naib Nazim, therefore, from this angle as well, it was not fair to restrain them from discharging their functions after a period of about two months.
7. Thus in view of the above discussion, we are of the opinion that the order dated 1st March, 2006 is not sustainable, as such the same is set aside and the order dated 28th December, 2005 passed by a learned Division Bench is restored.