' ABID AZIZ SHEIKH, J. --- C.M. 273/2014. This is an application under Section 151, C.P.C. For placing on record the additional doCuments. The learned counsel for the petitioner contends that the documents annexed with the application are already exhibited before the learned Election Tribunal and therefore, the same may be placed on the record of this writ petition for the fair decision of the titled writ petition. The application is not opposed by the learned counsel for the respondents, therefore, subject to all just and legal exception, this application is allowed. The documents annexed with this application are placed on record of this writ petition. This C.M. Stands disposed of.
' Main Case This single judgment will dispose of Writ Petition No, 1524 of 2014 as well as Writ Petition No, 1527 of 20114, as common questions of law and facts are involved in both these petitions and further both these petitions are between the .Same parties and against the same impugned order dated 07.12.2014 passed by the learned Election Tribunal.
2. The Writ Petition No, 1524 of 2014 has been filed against the order dated 07.01.2014 passed by the learned Election Tribunal whereby the application of the petitioner for determining the question of admissibility and relevancy of the documents produced in evidence by respondent No, 2, was dismissed, whereas the Writ Petition No, 1527 of 2014 assails the same impugned order dated 07.01.2014 passed by the learned Election Tribunal whereby the request of the petitioner to examine 115 witnesses in rebuttal was also declined.
3. The brief facts are that the petitioner and respondent No, 2 alongwith 15 other candidates contested the General Election held on 11.05.2013 to the seat of N.A.108 (Mandi Baha-ud-Din). The petitioner was declared as returned candidate after obtaining 84908 votes whereas respondent No, 2 stood runners up after getting 73679 votes. Respondent No, 2 being aggrieved filed an election petition before the learned Election Tribunal at Lahore. The petitioner filed his written statement and after framing the issues on 05.08.2013 the parties put to trial. The respondent No, 2 while giving his examination-in-chief tendered certain documents in evidence. The petitioner objected the admissibility of these documents, however, the learned Election Tribunal vide order dated 06.11.2013 allowed the documents to be exhibited subject to scrutiny and criticism to the evidentiary value of these documents at the time of final arguments/final order. The petitioner being aggrieved filed Writ Petition No, 29437 of 2013 which was dismissed by this Court in limine vide order dated 19.11.2013. Against the said order a Civil Petition No, 14 of 2014 was preferred before the august Supreme Court of Pakistan, however, on 20.01.2014, the same could not succeed and was disposed of being withdrawn. The petitioner again filed an application on 07.01.2014 before the learned Election Tribunal for disposal of the objections on the admissibility of documents produced by respondent No, 2 and request was also made to allow production of 115 witnesses to the petitioner in rebuttal to the election petition. The learned Election Tribunal vide impugned order dated 07.01.2014 dismissed the aforesaid application. The request of the petitioner to produce, 115 witnesses was also turned down, hence, both these writ petitions are filed.
4. The learned counsel for the petitioner in Writ Petition No, 1524 of 2014 argued that the learned Election Tribunal vide its earlier order dated 06.11.2013 held that the objections of the petitioner regarding the admissibility of documents will be decided after completion of evidence by both the parties at the time of final arguments of the Election Petition. Submits that respondent No, 2 has produced his entire evidence and now the case is fixed for petitioner's evidence, however, the evidence cannot be produced by the petitioner unless it is clarified/decided by the learned Election Tribunal at the first instance, the question of admissibly of the documents in evidence, to enable the petitioner to discharge shifted burden/onus of rebuttal. Submits that the request was genuine and the impugned order is not sustainable.
5. In Writ Petition No, 1527 it is argued that the only ground on which the learned Election Tribunal declined the request of the petitioner to produce 115 witnesses was that all these witnesses will depose on the issue of rigging, which allegation has already been withdrawn by respondent No, 2.
Submits that this sole ground was purely presumptive and hypothetical, as there is nothing on record which could give any hint to the learned Election Tribunal as to what will be the statements of those 115 witnesses. The learned counsel further contends that the learned Election Tribunal under the law could not deny the request of the petitioner to produce 115 witnesses in defence. In this context reliance is placed in the case reported as Muhammad Saeed v. Tahir Malik and others (2005 CLC 1493).
6. On the question of maintainability of these writ petitions which are filed against the interim order passed by the learned Election Tribunal, the learned counsel for the petitioner placed reliance on the cases reported as Intesar Hussain Bhatti v. Vice-Chancellor University of Punjab, Lahore and others (PLD 2008 310) and Intesar Hussain Bhatti v. Vice-Chancellor University of Punjab, Lahore and others (PLD 2008 Supreme Court 313) to argue that the Constitutional Petition is maintainable against the interim orders passed by the learned Election Tribunal.
7. Conversely, the learned counsel for the respondents raised preliminary objection that both these writ petitions being against the interim orders passed by the learned Election Tribunal are not maintainable. Reliance is placed on the cases reported as Shelia B. Charles v. Election Tribunal and another (1997 SCMR 941), Muhammad lftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328), Allandino and another v. Ghulam Mustafa (2010 YLR 346), Muhammad Naseer Ahmad v. Additional District Judge and others (1999 CLC 1925), Dr. Sheela B. Charles v. Election Tribunal and another (1995 CLC 344) and PLD 1993 Lahore 791. The learned counsel for the respondents further argued that the petitioner has concealed material facts regarding his earlier litigation, therefore, he is not entitled for the grant of discretionary relief in Constitutional jurisdiction of this Court.
Reliance is placed on the cases reported as Fiaz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others (2006 SCMR 219), Principal King Edward Medical College, Lahore v. Ghulam Mustafa, etc. (1983 SCMR 196), Ghulam Muhammad v. Member (Judicial-Ill), Board of Revenue Punjab, Lahore (2005 CLC 1552), Mst. Azra Parveen v. Pakistan Cricket Board through Chief Executive and 2 others (2005 YLR 1469) and Messrs Sandal Dye Stuff Industries Limited v. Federation of Pakistan through Secretary Finance, Pakistan Secretariat, Islamabad and 5 others (2000 CLC 661).
8. On merits regarding Writ Petition No, 1524 of 2014 it is argued that previously vide order dated 06.11.2013 the learned Election Tribunal held that the objections of the petitioner regarding admissibility of the documents will be decided after completion of evidence by both the parties at the time of final arguments/decision. Submits that the aforesaid order of the learned Election Tribunal was upheld by this Court in Writ Petition No, 29437 of 2013 vide order dated 19.11.2013 against which order the appeal of the petitioner filed before the august Supreme Court of Pakistan, was failed to find favour and was withdrawn, hence, the order dated 06.11.2013 of the learned Election Tribunal had attained finality. Submits that once the order dated 06.11.2013 had attained finality upto the level of apex Court of Pakistan the application of the petitioner to decide the admissibility of the documents prior to recording of his evidence was neither warranted nor maintainable under the law. Contends that the petitioner was very well aware of the contents of the election petition and the allegations raised against him therein, therefore, he is by no mean handicapped or precluded to produce his oral and documentary evidence in defence.
9. On merits in the connected Writ Petition No, 1527 of 2014, it is argued that the oral request of the petitioner to produce 115 witnesses was rightly declined by the learned Election Tribunal as none of these witnesses were mentioned in the list of witnesses produced before the learned Election Tribunal nor any of their affidavits were presented therein. Further contends that before the Election Tribunal the petitioner's counsel insisted to examine 115 witnesses to rebut the allegations of rigging, however, as the said allegation was already not Dressed by respondent No, 2, the request of the petitioner was lawfully declined by the learned Election Tribunal vide impugned order dated 07.01.2014.
10. I have given my anxious consideration to the arguments of the learned counsel for the parties and have gone through the record, appended with these petitions.
11. As far as Writ Petition No, 1524 of 2014 is concerned it is admitted position that previously the objection was raised by the learned counsel for the petitioner on the admissibility of the documents produced by respondent No, 2, before the learned Election Tribunal, however, vide order dated 06.11.2013, the documents were exhibited and for the satisfaction of the learned counsel for the petitioner, clarification was given to the effect that the question of admissibility in evidence, relevancy and evidentiary value of these documents would be subject to scrutiny and criticism from the petitioner at the time of final arguments/final order. It is expedient to reproduce the relevant part of the order dated 06.11.2013:--- "Learned counsel for the Returned Candidate is satisfied if it is made clear that the questions of admissibility in evidence, relevancy and evidentiary value of all these documents would be subject to scrutiny and criticism from the returned candidate and that all these questions would be answered at the time of final arguments/final order. I am in agreement with the learned counsel for the Returned Candidate for the reasons that mere adducing documents in evidence does not mean that the same have been believed and accepted. It would be seen at trial as to what is the worth and significance of all these documents as per law. Objections disposed of accordingly."
' The aforesaid order dated 06.11.2013 was upheld by this Court on 19.11.2013 in Writ Petition No, 29437 of 2013. The order of this Court was assailed in Civil Petition No, 14 of 2014 before the august Supreme Court of Pakistan, however, the Civil Petition was not pressed on 20.01.2014 and disposed of accordingly.
12. In view of the above, it is evident that the order dated 06.11.2013 passed by the learned Election Tribunal whereby it was held that the admissibility of the documents in evidence will be seen at the time of final arguments/final order, had attained finality.
Accordingly, once the order of the learned Election Tribunal dated 06.11.2013 had attained finality, the application of the petitioner dated 07.01.2014 for determining the question of admissibility and relevancy of documents produced by respondent No, 2 before tendering of petitioner's evidence was not maintainable. The arguments of the learned counsel for the petitioner that unless admissibility of documents is determined at the first instance, he will be handicapped to produce his evidence in defence is also misconceived. The petitioner already knows the allegations raised in the Election petition against him, the issues are framed and even entire oral and documentary evidence produced by respondent No, 2 is also available on record, therefore, apparently, the petitioner is not handicapped to produce his evidence in defence. To my mind the impugned order is neither patently illegal nor without jurisdiction.
13. As far as the Writ Petition No, 1527 of 2014 is concerned, it is admitted position that 115 witnesses who were sought to be produced by the petitioner, were neither mentioned in the reply to the election petition nor their names were given in the list of witnesses and even the affidavits of any of the said witnesses were not filed before the Election Tribunal. Notification dated 16.03.1985 issued under Section 62 of the Representation of People Act, 1976, prescribed the procedure for trial of election petition. It is expedient to reproduce relevant clauses of aforesaid notification:---
(3) The respondent shall upon the receipt of notice of the petition from the petitioner within seven days file his written statement together with all documents relied upon by him and the affidavits of the witnesses as are desired to be produced in defence.
(5) Where any party desires to summon any official witness he shall file with the petition a list such witnesses justifying his production and also mention the documents, if any, which are required to be proved through such witness.
(6) No witness whose name is not mentioned in the petition shall be summoned or examined unless required by the Tribunal.
(9) The Tribunal may refuse to examine a witness if it considers that his evidence is not material or that he has been clad on a frivolous or vexatious ground for the purpose of delaying the proceedings or defeating the ends of justice."
' The perusal of aforesaid notification shows that it was mandatory for the petitioner to produce the affidavits of all those witnesses, who were to be produced by him in defence and in respect of those witnesses, who were to be produced by the petitioner as Court witnesses, the names of the said witnesses justifying their production were to be filed before the Election Tribunal.
14. Admittedly no such exercise was done by the petitioner in respect of 115 witnesses sought to be produced. The perusal of the impugned order shows that petitioner's counsel himself made a request for the production of 115 witnesses to rebut the allegations of rigging, whereas the said allegation was already withdrawn by respondent No, 2, hence the learned Election Tribunal had correctly found that the evidence is not material. Accordingly, I find no patent illegality or'juris9ictional defect in the order of the Election Tribunal whereby the request of the petitioner to examine 115 witnesses in rebuttal of allegation of rigging, was declined the case-law relied upon by the petitioner is not applicable to the fact of the present case.
15. As to the question of maintainability, I have noted that both the petitions are against the impugned order dated 07.01.2014 which is interim in nature, since it does not finally dispose of the election petition. The question as to the maintainability of a Constitutional petition against such an interim order of the Election Tribunal has been dealt with and adjudicated repeatedly by the' august Supreme Court of Pakistan and by this Court. It is expedient to reproduce the dictum laid down by the august Supreme Court of Pakistan and by this Court on this question. In the case of Messrs All Match Industries Limited and 3 others v. Industrial Development Bank of Pakistan (1997 SCMR 943). The writ petition was dismissed against the interim order of the learned Election Tribunal and the august Supreme Court of Pakistan declined to interfere and held as under:--- "4. We would not like to comment upon the merits of the above contentions as it may prejudice the petitioner. However, it will suffice to observe, for the purpose of disposal of the above stay applications, that the Election Laws provide hierarchy for impugning the election and the orders passed by the Election Tribunals. If the above orders of the Election Tribunal are illegal, the same can be challenged by the petitioner if eventually the election petition is decided against her but the proceedings of an election petition cannot be stayed at this,stage. We are not inclined to grant any interlocutory stay order. The above application for leave to appeal may be fixed at an early date."
16. In the case of Muhammad lftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328), the apex Court held as under:- "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.
17. The question whether the Constitutional petition is maintainable against an interim order passed by the learned Election Tribunal, recently came up before the learned Larger Bench of Hon'ble High Court of Sindh at Karachi in Civil Petition No, 3248 of 2013, where the following judgments of the august Supreme Court of Pakistan were discussed.
"Judgment ' Election Commission of Pakistan v. Javaid Hashmi and others PLD 1989 SC 396 (4-member Bench)
' Ghulam Mustafa Jatoi v. Additional District & Sessions Judge/Returning Officer and others 1994 SCMR 1299 (5-member Bench)
' Muhammad Arif Hussain v. Rao Sikandar lqbal and others PLD 2008 SC 429 (3-member Bench)
' Nayyar Hussain Bukhari v. District Returning Officer and others PLD 2008 SC 487 (3-member Bench)
' Muhammad Hussain Babar v. Election Commission of Pakistan and others PLD 2008 SC 495 (3- member Bench)
' Lt. Gen. (R.) Salahuddin Tirmizi v. Election Commission of Pakistan PLD 2008 SC 735 (5-member Bench)
' Aftab Shahban Mirani v. Muhammad Ibrahim and others PLD 2008 SC 779 (5-member Bench)
' Federation of Pakistan v. Muhammad Nawaz Sharif PLD 2009 SC 644 (5-member Bench)."
18. The learned Larger Bench after discussing in detail the dictum laid down by the august Supreme Court of Pakistan in the aforesaid judgments came to the conclusion that the Constitutional petition is not maintainable against an interim order passed by the learned Election Tribunal. It is convenient to reproduce the findings of the learned Larger Bench of the Sindh High Court at Karachi, as under:---
25. Having considered the decisions of the Supreme Court as above, in our respectful view, the controlling authorities for present purposes are Javaid Hashmi, Ghulam Mustafa Jatoi and Muhammad Nawaz Sharif. As noted, the last two decisions were of 5-member Benches. In both, the general rule laid down in Javaid Hashmi was affirmed. In our respectful view, that general rule must be regarded as applicable to all disputes relating to or arising out of the election process of after that process has been completed. What has been stated in Ghulam Mustafa Jatoi ought to be regarded as an exception to the general rule, and what is stated in Muhammad Nawaz Sharif ought to be regarded as a restatement of the exception. It will be recalled (see para 13 above) that in Javaid Hashmi the Supreme Court expressly observed that the High Court could not in the exercise of its jurisdiction under Article 199 "question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election" (see Javaid Hashmi at pg. 423). Quite obviously, "the decision" being referred to includes an interlocutory order of the Election Tribunal. The general rule thus clearly encompasses the matter before us, which is a challenge to two interlocutory orders of the Tribunal. The only question therefore is whether, and if to what extent, the matter comes within the scope of the exception? We have carefully considered the point. As restated in Muhammad Nawaz Sharif, for the exception to apply the order must be "patently illegal" and there should be no remedy available in law "either before or after the election process". Now, in respect of an election petition presented under Section 52, there is a remedy available by way of a direct appeal to the Supreme Court under Section 67(3). In Javaid Hashmi, the majority dilated at some length upon this aspect and, in our respectful view, the existence of this statutory right of appeal is central to the reasoning that led the Court to lay down the general rule. The general rule is comprehensive. The exception on the other hand has been stated in narrow terms. The threshold is high; mere illegality will not do; the impugned order must be "patently" illegal. In our respectful view, if an interlocutory order of an Election Tribunal trying an election petition presented under Section 52 is patently illegal, that will almost certainly furnish a ground for an appeal to the Supreme Court under Section 67(3). In other words, in the present context, there will hardly ever be a situation where the remedy by way of statutory appeal will not be available and applicable. Put differently, one of the key elements for the exception to apply will not be found to exist. There will be a remedy available under law. That this remedy is not immediately available, but must await the "final decision of the Election Tribunal is not determinative. In our respectful view, the manner in which the exception has been formulated, especially as restated in Muhammad Nawaz Sherif, precludes any such conclusion. It necessarily follows that a petition under Article 199 will not be maintainable against an interlocutory order of an Election Tribunal trying an election petition, even if such order is patently illegal. The aggrieved party will have its remedy by way of the statutory appeal under Section 67, and must seek that remedy at the appropriate stage.
"26. We are mindful of the fact that the foregoing conclusion may mean that an interlocutory order of an Election Tribunal must be allowed to stand and take effect, no matter how perverse or illegal it may be. That was perhaps the apprehension expressed by Nasim Hassan Shah, J. In his dissenting judgment in Javaid Hashmi. In our respectful view, the forceful and comprehensive manner in which the majority judgment stated the general rule, the repeated affirmation of that rule in subsequent Supreme Court decisions (given by larger Benches), and the care taken to narrowly circumscribe the exception carved from the general rule make clear that notwithstanding this concern and apprehension, the matter must be left/or the Supreme Court itself to decide in any appeal to be preferred under Section 67(3). If at all the position is otherwise i,e, the exception is to cover a patently illegal interlocutory order of an Election Tribunal trying an election petition notwithstanding the existence of the statutory right of appeal that is something for which guidance can only come from, and be given by, the Supreme Court itself.
27. In our view, the submissions by learned counsel for the present petitioner that the petition is maintainable cannot therefore be accepted. The division of Article 225 into two parts as submitted by him would lead to an anomalous result. It is of course obvious that a successful candidate would not challenge his own election; the election petition would only be filed by a losing candidate. If Article 225 were not to apply to the returned candidate, he would be able (e.g.) to challenge an interlocutory order under Article 199, but the former Article would apply to the candidate presenting the election petition (and for that matter to the other candidates, all of whom must be correspondents), who would be unable to mount such a challenge. This anomaly cannot be accepted. It is quite clear from the Supreme Court decisions that Article 225 applies uniformly in all cases. Thus, both the general rule and the exception apply equally to the winning candidate as well as the losing ones. The reliance placed on Jamal Shah v. Election Commission of Pakistan PLD 1966 SC 1 does not advance the petitioner's case, since this case was examined in the Supreme Court decisions considered above. Furthermore, and with the utmost respect, the reliance placed on the dissenting judgment in Javaid Hashmi is also inapposite. It is the majority judgment that is binding, and the general rule laid down therein has been repeatedly affirmed. We may also here dispose of the submission made by learned counsel for the respondent No, 2, on the basis of Abdul Ghani and another v Election Tribunal and others 1999 SCMR 1, that in certain circumstances an appeal can be preferred to the Supreme Court under Section 67(3) even against an interlocutory order. In our respectful view, the cited decision leads to no such conclusion. In any case, the point was absolutely clarified in Muhammad Asim Kurd v. Mir Lashkari Khan Raisani 1999 SCMR 689.
28. 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 restarted 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."
19. I respectfully agree with tf above conclusion drawn and reasoning adopted by the Sincin High Court. This legal position was also followed by this Court in earlier Writ Petition No, 29437 of 2013 as well as in the cases reported as Allandino and another v. Ghulam Mustafa (2010 YLR 346), Muhammad Naseer Ahmad v. Additional District Judge and others (1999 CLC 1925), Doctor Sheela B. Charles v. Election Tribunal and another (1995 CLC 344) and Sh. Rashid Ahmad v. The Election Tribunal Comprising Mr. Justice Mian Nazir Akhtar of Lahore High Court, Lahore and another (PLD 1993 Lahore 791).
20. The cases of Intesar Hussain Bhatti (Supra) relied upon by the petitioner are not apt to the facts and circumstances of this case, as in those cases the order of the Returning Officer was under challenge and not the order of the Election Tribunal. Further the precondition in the aforesaid cases for exercise of Constitutional jurisdictions against interim order is where the same is without jurisdiction or patently illegal, as already discussed above, no such jurisdictional defect or patent illegality is found in the orders assailed in the instant cases.
21. In view of the foregoing discussion and the case-law referred above, the Constitutional petitions against the impugned orders, being of interim in nature, are not maintainable.
22. As far as the question of concealment of material facts is concerned, I have noted that the petitioner has not concealed the facts regarding his earlier Constitutional Petition No, 29437 of 2013, however, as far as the Writ Petition No, 33457 of 2013 is concerned, the same is not directly relevant to the issue in hand, therefore, its non-mentioning does not amount to concealment of fact.
23. For what has been discussed above, I find no merits in these petitions, the same are dismissed, with no order as to costs.