Abdul Hameed Dogar, CJ.--This petition has been filed against the judgment dated 07.02.2008 passed by learned Division Bench of Peshawar High Court, Peshawar passed in Review Petition No, 42 of 2006, filed by Respondents No, 1 & 2 was allowed and re-election was ordered.
2. Briefly stating, facts of the case are that the petitioners alongwith-Respondents No, 1, 2, 8 and 9 contested elections for the seat of Nazim and Naib-Nazim of Union Council Darangal whereby the Respondents No, 1 and 2 were declared returned candidates having obtained highest number of votes. However, the election was declared as null and void by the Election Tribunal on the ground that the Deeni Sanad of Respondent No, 1 was not equivalent to matric certificate and consequently, the petitioners were declared returned candidate on the ground that although the Petitioners No, 8 and 9 were runners-up but the matric certificate of Respondent No, 8 was also found fake and bogus. The Respondent No, 1 and 2 challenged the said order through Writ Petition No, 2075/2005 before the learned Peshawar High Court, Peshawar which was dismissed vide judgment dated 23.02.2006. The Respondents No, 8 and 9 filed another Writ Petition No, 544 of 06 before the Peshawar High Court challenging the same order for obtaining orders for re-election.
The said writ petition was dismissed as withdrawn on 12.10.2006 with permission to file a review petition against the judgment passed in the Writ Petition No, 2075 of 2005. The Respondents No, 8 and 9 filed review petition against the judgment dated 23.02.2006 which was accepted vide impugned judgment as stated above.
3. Learned counsel for the petitioners vehemently contended that admittedly the review application was filed after the period of limitation, therefore, the same could not have been entertained being barred by time and was liable to be dismissed. According to him review petition was not maintainable against the judgment dated 23.02.2006, as the Intra Court Appeal was competent against the same. He further contended that disqualification of Respondent No, 1 was notorious as at the time of poling it was publicly known that he lacked requisite qualification for contesting the election in view of the case reported as "Sanaullah vs. District Returning Officer" (PLD 2005 SC 858) whereby, it was declared that the persons holding the Sanads of Deeni Madrasa without having equivalent certificate are disqualified to contest the election, therefore, the disqualification of Respondent No, 1 was notorious. The judgment of this Court has binding force and ignorance about the same is not a valid grounds towards its applicability; that the general public despite having the knowledge that the Respondent No, 1 did not qualify to contest elections, cast their votes in his favour, thus they themselves threw away their votes.
4. On the other hand, learned counsel for the respondents controverted the contentions raised by learned counsel for the petitioner and submitted that the review petition was filed after obtaining permission from the learned High Court vide judgment dated 12.10.2006, therefore, the same was not barred by limitation as the limitation starts from the said date. The disqualification of the Respondent No, 1 was not notorious on the ground that he possess the Sanad of Deeni Madrasa, therefore, the principle of through away votes cannot be made applicable in the instant case. In this behalf, he relied upon the judgment reported as "Shaukat Ali vs. District Returning Officer" (PLD 2006 SC 78).
5. We have heard learned counsel for the parties at length and have gone through the record of the case minutely. Admittedly, Writ Petition No, 2075 of 2005 was dismissed on 23.2.2006 but the respondents did not file any Intra Court Appeal or petition for leave to appeal before this Court against the said judgment which attained finality. Afterwards, they filed another Writ Petition No, 544 of 2006 challanging the same order which was not maintainable in view of the explanation IV to Section 11 read with Order II Rule 2 of CPC, therefore, the same was dismissed as withdrawn, on 12.10.2006, with permission to file review petition in the previous Writ Petition No, 2075 of 2005. The respondents filed the review petition in the month of October, 2006 after lapse of more than 08 months from the judgment dated 23.02.2006. It is settled by now that when a petition is dismissed by the High Court in the exercise of its original jurisdiction, the application for review is governed by the provisions of Article 162 of the Limitation Act, which provides that a review application can be filed within 20 days from the date of the order or judgment. Apparently the review application has been filed beyond the period of limitation; hence, the same was hopelessly barred by time. In this behalf, reference can be made to the case reported as Nigar Bibi v. Salahuddin Khan (PLD 1991 SC 197), Hafiz Abdul Khalique v. Govt. of Sindh (PLD 2007 Karachi 374) and Desmond Vas v. KBCA (PLD 2005 Karachi 161). Even otherwise, at the time of dismissal of Writ Petition No, 544 of 2006 the Respondent No, 1 neither requested for condonation of delay in filing of review petition nor the Court condone the delay, therefore, simple permission to file the review petition cannot condoned the delay. Moreover, the respondent did not file application under Section 5 of the Limitation Act for the condonation of delay in filing of review petition thus the learned High Court has erred in entertaining the review petition.
6. In view of the above discussion, the petition is converted into appeal and allowed, resultantly, the impugned order of the learned Peshawar High Court passed in Review Petition No, 42 of 2006 is set- aside. The order dated 23.02.2006 passed in Writ Petition No, 2075 of 2005 of learned Peshawar High Court, Peshawar is restored.
These are the reasons of our short order of the even date.