' IJAZ-UL-AHSAN, J.---Through this constitutional petition, the petitioner calls into question orders dated 11-10-2013 and 19-11-2013 passed by respondent No,17, Punjab Election Tribunal, Lahore.
Through the earlier order, an application moved by the petitioner .For dismissal of the election petition without a regular trial on the ground that the petitioner had failed to verify the election petition and the documents annexed with it in accordance with law, was disposed of. Through the subsequent order, an application moved by the petitioner seeking framing of an additional issue was disposed of.
2. Briefly stated the facts necessary for decision of this petition are as follows: ' The petitioner is the returned candidate for NA 108 Mandi Bahauddin. Respondent No,1 filed an election petition against the petitioner under Section 52 of the Representation of the Peoples Act, 1976 ("ROPA ") challenging the petitioner's election on various grounds. It appears that the grounds taken by respondent No,1 seeking disqualification of the petitioner included an allegation that the petitioner's educational testimonials were fake insofar as the petitioner claimed to have obtained his B.Sc. Degree from a University in Philippines, which was a fate and fabricated document.
' The petitioner filed a reply to the election petition. On the basis of divergent pleadings of the parties, the Election Tribunal framed the following issues on 5-8-2013.
(1) Whether false and frivolous allegations have been levelled against Returning Officers and Judicial Officers by the petitioner in this election petition? If, so its effect? OPR1
(2) Whether this petition is bad for mis-joinder and non joinder of parties/necessary parties? OPR1.
(3) Whether the petitioner did not provide copies of the documents and affidavits annexed with election petition to respondent No,1 and failed to verify the election petition and the documents on oath as required by Notification No, F(16)-Coord dated 16-3-1985 and the relevant Law? OPRI.
(4) Whether the petitioner failed to mention particulars of illegal or corrupt practices attributed to respondent No,1 as required under section 55(1)(b) of the Representation of the People Act, 1976?
OPRI.
(5) Whether respondent No,1 was not a qualified to contest the election in dispute? OPA.
(6) Whether respondent No,1 was disqualified to contest the election in dispute? OPA.
(7) Whether the election in dispute is liable to be declared as void and the petitioner is entitled to be declared as a returned candidate for the reasons stated in this petition? OPA.
(8) Whether respondent No,1 was qualified to contest the election dispute?
9. Relief. iii. After framing of issues and before the process of recording of evidence could commence, both sides filed various applications which resulted in the matter of recording of evidence being obstructed. However, the Election Tribunal took up the four applications moved by respondent No, 1 and one application filed by the petitioner on 11-10-2013. All five applications were disposed of and the matter was fixed for recording of evidence on 31-10-2013. The application moved by the petitioner, which was disposed of by the Election Tribunal sought dismissal of the election petition on the ground that the petition, affidavits and other documents had not been duly verified in accordance with law. Iv. It appears that the process of recording of evidence started on 6-11-2013.
Respondent No,1 appeared as a witness in support of the petition. He appears to have confined his statement to questioning the genuineness of the educational testimonials of the petitioner. During the process of recording of the statement, the petitioner raised objection regarding admissibility of certain documents, however, the learned Tribunal allowed the documents to be placed on record.
This prompted the petitioner to file W.P. No,29437 of 2013. The petition came up for hearing before my learned brother Abid Aziz Sheikh, J. The same was dismissed vide order dated 19-11-2013 holding that interim orders could not be challenge through constitutional petitions. The order of the learned Single Bench was challenged by the petitioner before the Hon'ble Supreme Court of Pakistan, however, the said challenge did not succeed. v. It appears that subsequently another application was moved with the Election Tribunal seeking framing of an additional issue. Vide order dated 19- 11-2013, the same was dismissed. Hence this petition.
3. The learned counsel for the petitioner submits that the Election Tribunal erred in law in failing to frame an additional issue in view of the fact that the said issue went to the very root of the controversy. He submits that the petitioner had contested the election from NA 108 Mandi Bahaudiin for the first time in the year 2002. His election was challenged through Election Petition No,52/2002. In the said petition, the graduation degree of the petitioner obtained by him from Quezon College of Southern Philippines was challenged. After a full trial, the Election Tribunal came to the conclusion that the Degree of the petitioner was genuine and the election petition was dismissed vide order dated 1-4-2004. The order of the Election Tribunal was challenged before the Hon'ble Supreme Court of Pakistan by way of Civil Appeal No,409 of 2004. The same was dismissed as not pressed. He, therefore, submits that the judgment of the Tribunal had attained finality and could not be re-agitated in any subsequent proceedings. The learned counsel for the petitioner further submits that it was the legal duty of the Election Tribunal to frame an additional issue and treat it as a preliminary issue and decide the same in accordance with law. He submits that the genuineness of the bachelors degree of the petitioner has already been conclusively decided by courts of competent jurisdiction up to the level of the apex Court. The same is a past and closed transaction. He maintains that the Election Tribunal has no jurisdiction to take cognizance of the matter on merits, re-open, re-check or re-decide the same. He further argues that the principle of res judicata is attracted to the facts and circumstances of the case, which the learned Tribunal has totally ignored. The learned counsel for the petitioner has argued that the order dated 11-10-2013 passed by the Election Tribunal is also illegal insofar as the same would have the effect of rendering section 63 of ROPA redundant and non-existent. He vehemently argues that it was not a question of conducting a mini trial as observed by the Election Tribunal in view of the fact that the Tribunal was obliged at the very preliminary stage to throw out the election petition, which was a mandatory requirement of section 63 of the ROPA.
4. The learned counsel for the respondent, on the other hand, has argued that this petition was filed without disclosing to this Court that the petitioner had earlier filed a constitutional petition against orders passed by the Election Tribunal, which had already been dismissed and the challenge before the Hon'ble Supreme Court of Pakistan had not succeeded either. He has drawn my attention to ground (g) of the earlier petition, in which it was alleged that since the question of genuineness of diploma/degree of the petitioner already stood decided, the Election Tribunal was bypassing the judgment of the High Court as well as the Hon'ble Supreme Court of Pakistan. He, therefore, submits that the petitioner has not only concealed the filing and dismissal of an earlier petition on the same subject but had also withheld information from this Court that the grounds on the basis of which the present petition has been filed, had already been adjudicated by this Court as well as the Hon'ble Supreme Court of Pakistan. The learned counsel has referred to various judgments of this Court as well as the Hon'ble Supreme Court of Pakistan including Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCMR 219) and Principal, King Edward Medical College, Lahore v. Ghulam Mustafa etc. (1983 SCMR 196) to argue that where a party had concealed facts, such concealment by itself constitutes sufficient ground to deny relief.
5. The learned counsel for the respondent further submits that admittedly, the present petition is directed against an interim order, it is by now settled law that interim orders passed by the Election Tribunals cannot be interfered with in constitutional jurisdiction. He further maintains that there is no question of the principle of res judicata being attracted to the facts and circumstances of the case in view of the fact that the proceedings before the Election Tribunal in the year 2002 were between different parties and the petitioner was not a party in such proceedings. He submits that respondent No,1 had not participated in the elections held in 2002. As such he cannot be debarred or restrained from challenging the election of the petitioner on any ground including challenging his educational testimonials.
6. He finally argues that the additional issue proposed by the petitioner is already covered by issues Nos.5, 6 and 8 framed by the Tribunal. As such there is neither reason nor justification to frame an additional issue. He adds that the application for framing of additional issue and the constitutional petition filed by the petitioner are designed to prolong and delay finalization. Of the proceedings before the Tribunal, which should not be permitted. In this regard he has also drawn my attention to a transfer application filed by the petitioner before the Election Commission of Pakistan, which was dismissed by a Full Bench of the Commission, where it was argued that the question of qualification of the petitioner had already been adjudicated and the matter could not be re-opened. The Commission dismissed the application by holding that the argument went to the merits of the case which fell within the exclusive domain of the Election Tribunal.
7. I have heard the learned counsel for the parties and examined the record with their assistance.
The only question requiring determination by this Court is whether this petition is maintainable in the facts and circumstances narrated above. On hearing the arguments of the learned counsel for the parties and examining the record, my response to the said question is in the negative for the following reasons:-- I. It is not denied by the learned counsel for the petitioner that W.P. No,29437 of 2013 was earlier filed by the petitioner. Ground (g) of the petition was couched in the following language:-- "g. That, at any rate, the question of genuineness of the diploma/degree already stands decided by a Judge of the Lahore High Court in Election Petition No,52/2002. The degree was held to be genuine vide the judgment dated 1-4-2004. The matter went up to the Honourable Supreme Court of Pakistan in Civil ' Appeal No,409/2004 which was dismissed on 16-10-2006 as not pressed. It is submitted that the matter relating to the diploma/degree already stands decided, no evidence could be lead on this question. The Election Tribunal is bypassing the judgment of the High Court and the Supreme Court of Pakistan."
' It is also not denied by the learned counsel for the petitioner that the said petition was dismissed by this Court vide order dated 19-11-2013. There is also no denial of the fact that an appeal filed against the afore noted dismissal order before the Hon'ble Supreme Court of Pakistan did not succeed. The fact of filing of the petition, the same grounds having been taken in the said petition, dismissal of the petition by this Court and the appeal by the Hon'ble Court of Pakistan were not disclosed to this Court while filing the present petition. Further during hearing of this petition, two other writ petitions namely W.P. No,1525 of 2014 and W.P. No,1527 of 2014 have also been filed relating to the same election petition without disclosing the factum of pendency of the present petition. I n my opinion failure on the part of the petitioner to disclose the requisite information is intentional and he has not approached this Court with clear hands. This fact alone constitutes sufficient ground to dismiss this petition, Reliance is placed on Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCMR 219), the Hon'ble Supreme Court of Pakistan made the following observations:- "As mentioned hereinabove the petitioners has suppressed the fact that jurisdiction of civil Court was also invoked for the redressal of their grievances and the civil suits filed by them were either withdrawn or dismissed. "A petitioner who wants a relief in exercise of the extraordinary jurisdiction under Article 199 of the Constitution disentitles himself to obtain relief if he makes misrepresentations or suppress material Acts, or does not make complete and correct disclosure of facts within his knowledge, or makes deliberate misstatements in petition. Where petitioners had filed a civil suit for permanent injunction against respondents alleging the same facts and claiming same reliefs as made in the constitutional petitions but had not referred to the institution of such suit in the constitutional petition. Petitioners, could not he said to have come to Court with clean hands". Ghulam Rasool v. Tauheed Akhtar 1991 MLD 1755; Raza Khan v. V. C. N.W.F.P. University of Engineering and Technology 1982 SCMR 560; Shams Din v. Additional Settlement Commissioner PLO 1985 Lah. 508; Muhammad Azhar v. Province of Punjab PLO 1975 Lah 921 and Ghulam Haider v.
Station House Officer CPS PLO 1988 Quetta 52. It is well-entrenched legal proposition that "where the petitioner is guilty of fraud, or delay, default and misrepresentation, or he has made the petition with an ulterior motive, or lie has suppressed the fact that he has already filed civil suit about subject-matter of writ petition, or that his civil suit and appeal on the same matter have been dismissed, the Court will not 'grant any relief under this Article". Syed Shah v. Political Agent Bajaur Agency PLD 1981 Pesh. 57: Muhammad Aman v. Atta Muhammad 1982 SCMR 270; Abdur Rahim Khan v. Town Committee 1985 CLC 2805 and Rehmatullah Khan v. Pir Shahzada PLD 1961 Pesh. 40."
II. As far as the question of the judgment of the Election Tribunal dated 1-4-2004 is concerned, I would restrain myself from recording a finding on the issue of constructive res judicata and principle of stare decisis. Any findings recorded or observations made at this stage could prejudice the case of either side before the Tribunal which is yet to rule on the question. III. I have carefully examined the language of the additional issue that the petitioner requested the Election Tribunal to frame. The issue as proposed by the petitioner was in the following terms:- "Whether in the light of the judgment dated 1-4-2004 passed by the Hon'ble High Court (Election Tribunal,) on Election Petition No, 52/2002 and that dated 16-10-2006 of the Hon'ble Supreme Court of Pakistan passed on C.A. No, 409/2004, the genuineness of the diploma degree of the respondent No,1 stands finally decided and this tribunal has no jurisdiction to re-open the matter?
OPR"
The said issue, in its present form, is clearly covered by issues Nos.5, 6 and 8, which have already been framed by the Tribunal. Even otherwise, the learned Tribunal was quite justified in coming to the conclusion that the judgment relating to the previous election dispute between the returned candidate and some other political rival could be produced in evidence in respect of issues already framed. Further, the petitioner's rights were adequately secured by the Tribunal by allowing him to place on record the judgment of the Election Tribunal as well as Hon'ble Supreme Court of Pakistan in support of his defence. I am, therefore, of the view that framing of additional issue was neither necessary nor required to fully and conclusively decide the controversy between the parties. Put simply respondent No,1 is alleging that the petitioner is disqualified from being elected as a member of the parliament on account of the fact that his degree/diploma is fake and that he has made a false declaration in his nomination papers. It is obvious that the defence of the petitioner would be that he is not disqualified in view of the fact that his degree is genuine and has been so held by the Election Tribunal in 2002. The petitioner can take that defence and also produce the orders/judgments that he relics upon regarding which permission has already been granted by the Tribunal. Therefore, I do not find any reasons why the petitioner should insist upon framing of an additional issue. This, in my opinion, would be an exercise in futility and would serve no purpose other than delaying and prolonging ,finalization of proceedings pending before the Election Tribunal.
IV It is important to note that the present petition is directed against interim orders. The first being an order refusing to hold a mini trial on the question whether or not the election petition fulfills all requirements of law and the second refusing to frame an additional issue on the request of the petitioner. 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 considerable period of time is that interim orders should not be interfered with, the Tribunal should be allowed to complete the proceedings within reasonable time so that on completion of entire process, any of the aggrieved parties can 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 filed to question the validity of the election."
' 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), Allandino and another v. Ghulam Mustafa and 6 others (2010 YLR 346) and Muhammad Naseer Ahmad v. Additional District Judge and others (1999 CLC 1925).
V. The question of maintainability of the constitutional petition against interim orders passed by the Election Tribunal recently came up for hearing before the 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."
' I respectfully agree with the conclusion drawn by the Sindh High Court and the reasoning adopted in its order dated 3-1-2014.
8. For reasons recorded above, I hold that this petition is not maintainable. It is accordingly dismissed.