' MOHAMMAD AZAM KHAN, CJ. --- The above titled petition for leave to appeal arises out of an order passed by the Election Tribunal for Constituency No, LA-XXI, Sudhnuti, on 4.7.2013, whereby an application filed by the petitioner, herein, for recounting of total votes has been decided and it has been accepted to the extent of polling station No,
185. Deputy Election Commissioner Kotli has been appointed as Local Commissioner to recount the votes of the said polling station.
2. The petitioner and respondents No, 1 to 9 contested elections to the Azad Jammu and Kashmir Legislative Assembly from Constituency No, LA-XXI, Sudhnuti-I.. Respondent No, 1 was declared elected from the said Constituency. The petitioner filed an election petition against the election of AJ&K Legislative Assembly held in the year 2011 in respect of constituency No, LA-XXI, Sudhnuti-I.
During pendency of the election petition, the petitioner moved an application to the effect that recounting of all the votes be made, however, he added in the application that he is ready to withdraw from all other issues if re-polling is ordered for 7 polling stations as prayed by the respondent in his application dated 27.6.2011. The learned Tribunal, after seeking objections and hearing the parties, accepted the application on 4.7.2013 to the extent of polling station No, 185 and ordered for rechecking/recounting of the votes of the said polling station. Raja Rashid Mehmood, Deputy Election Commissioner Kotli was appointed as Local Commissioner to recheck and recount the votes polled in Polling Station No,
185. The petitioner has challenged the said order of the Election Tribunal dated 4.7.2013 by way of petition for leave to appeal.
3. At the very outset we inquired from Sardar Shamshad Hussain Khan, Advocate, counsel for the petitioner, that under Section 63(3) of the Azad Jammu & Kashmir Legislative Assembly (Elections)
Ordinance, 1970, an appeal can be filed in this Court against a final order and no petition for leave to appeal is competent against an order passed by the Election Tribunal, while he has filed petition for leave to appeal. The learned counsel for the petitioner submitted that the petition for leave to appeal has competently been filed. He argued that under Section 47 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, any order passed by a Tribunal can be challenged in this Court by way of petition for leave to appeal if the case involves a substantial question of law of public importance. There is no other provision dealing with such matters.
4. We have heard the learned counsel for the petitioner and perused the record. The Election Tribunal is constituted under the Azad Jammu & Kashmir Legislative Assembly (Elections)
Ordinance, 1970. Under Section 63, at the conclusion of trial of election petition, the Tribunal may make an order. It will be useful to reproduce the same, which reads as under:--- "63. (1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order:---
(a) dismissing the petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
(2) Save as provided in sub-section (3), the decision of a Tribunal on an election petition shall be final.
(3) Any person aggrieved by a decision of the Tribunal may, within thirty days of the announcement of the decision, appeal to the Supreme Court and the decision of the Supreme Court on such appeal shall be final.'
' A plain reading of sub-section (3) of Section 63 of the Azad Jammu & Kashmir Legislative Assembly (Elections) Ordinance, 1970, makes it abundantly clear that the appeal lies only against a final order. Admittedly the impugned order is an interlocutory order, not a final order. There is no concept of appeal against any interlocutory order. We are fortified in our view from a case reported as Bhagwandas v. Tne Returning Officer and others [1990 SCM R 1228] wherein it has been observed as under:--- "3. After hearing the learned counsel for the appellant we are of the view that these appeals are not competent. It is to be noticed that the election petition is still pending before the learned Election Tribunal and has not yet been finally disposed of. In the case of Zahid Sarfraz v. Nadir Pervez Khan 1987 SCM R 1107, this Court examined the types of orders from which appeals can be preferred under Section 67(3), Representation of the People Act. The view taken was that only such types of orders as were enumerated in Section 67(1) of the Act were appearable before this Court. Clearly, the order from which the appellant has preferred these two appeals, is not the type of order which can by any means be treated as one falling under the said enumeration. These appeals are, therefore, incompetent and are hereby dismissed in limine."
' Similarly in another case reported as Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others [PLD 1994 SC 867] it has been observed as under:--- "5. Objection with regard to non-maintainability of appeal against interlocutory order of the Tribunal is correct as per scheme of the said Act and legal position enunciated in the case-law on the subject mentioned above. The petition is still pending before the Tribunal and final order is yet to be passed against which appeal could competently be filed in this Court. In such circumstances we would not like to make any comment on the contentions raised on behalf of the appellant, which could be raised by him before the Tribunal at the stage of the arguments. At present it would suffice if we mention that under Section 64 of the said Act Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions and in that context reference can be made to the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan PLD 1986 SC
542. In any case final order is yet to come from the Tribunal against which appeal is competent. For the facts and reasons mentioned above this appeal is dismissed as non-maintainable."
5. Under Section 42(12) of the AJ&K Interim Constitution Act, 1974, an appeal to the Supreme Court from a judgment, decree, or order or sentence of the High Court in a case to which sub-section (11) of Section 142 does not apply shall lie only if the Supreme Court grants leave to appeal. The appeal by way of leave under Section 42(12) lies only against the judgment, decree, or order or sentence of the High Court. Section 42(2) of the AJ&K Interim Constitution Act, 1974, postulates that subject to the provisions of this Act, the Supreme Court of Azad Jammu and Kashmir shall have such jurisdiction as is or may be conferred on it by this Act or by or under any law. The petition for leave to appeal is competent under Section 42(12) of the AJ&K Interim Constitution Act, 1974, from the judgment, decree, or order, or sentence of the High Court and under Section 47(3) of the AJ&K Interim Constitution Act, 1974 from a judgment, decree, order or sentence of an administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir, being satisfied that the case involves a substantial question of law of public importance grants leave to appeal.
No other case a petition for leave is competent. The argument of the counsel for the petitioner that the Election Tribunal falls in the definition of "Tribunals" provided in Section 47 of the AJ&K Interim Constitution Act, 1974 is misconceived. Section 47 specifically deals with the matters relating to terms and conditions of persons in service of AJ&K, matters relating to claims arising from tortuous acts of the Council or the Government or any person in the Service of AJ&K or matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property.
For proper appreciation it is necessary to reproduce Section 47 which is as under:-Administrative Courts and Tribunals:--- (1) Notwithstanding anything hereinbefore contained, the Council in respect of matters to which its executive authority extends, and the Assembly in respect of matters to which the executive authority of the Government extends, may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:---
(a) matters relating to the terms and conditions of persons who are or have been in the service of Azad Jammu and Kashmir including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of the Council or the Government or any person in the services of Azad Jammu and Kashmir or of any local or other authority empowered by law to levy any tax or cess and any servant or such authority acting in the discharge of his duties as such servant; or
(c) matters relating to acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any administrative Court or Tribunal is established under sub-section (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment.
(3) An appeal to the Supreme Court of Azad Jammu and Kashmir from a judgment, decree, order or sentence of an administrative Court or Tribunal shall lie only if the Supreme Court of Azad Jammu and Kashmir being satisfied, that the case involves a substantial question of law of public importance grants leave to appeal."
6. A plain reading of Section 47 shows that it is enacted particularly for administrative and Courts Tribunals relating to matters enumerated in sub-section (1)(a), (b) and (c) and an appeal lies to Supreme Court if the Supreme Court being satisfied that the case involves a substantial question of law of public importance grants leave to appeal. No petition for leave to appeal lies from the orders passed by other Tribunals which do not fall in clauses (a), (b) and (c) of sub-section (1) or not covered under this section. The Supreme Court of Pakistan in a case titled Maulvi Abdul Ghani and another v. Election Tribunal, Balochistan and others [1999 SCM R 1] while dealing with a similar proposition observed that petition for leave to appeal is competent only against the judgment, decree, order or sentence of the High Court and not the Election Tribunal. It was observed in para 12 of the referred authority as under:- "12. The order passed by the Election Tribunal is not covered by any of the afore-mentioned provisions of Article 185 of the Constitution. Therefore, ex-facie petition for leave to appeal within the purview of Article 185 of the Constitution assailing order of Election Tribunal is not maintainable.
An abortive attempt was, however, made by Mr. Muhammad Aslam Chishti, learned counsel for petitioners that impugned order having been signed as Judge of the High Court, should be deemed to cover necessary requirements. The contention obviously has no substance. It is, however, settled principle of law that mere wrong description of the forum or any such characteristic omission does not change capacity of authority passing such order. Therefore, by no stretch, impugned order can be termed to have been passed by the High Court."
(underlining is ours)
7. Under Section 63(3) of the AJ&K Legislative Assembly Elections Ordinance, 1970, any person aggrieved of a decision of the Tribunal may, within 30 days of the announcement of decision, appeal to the Supreme Court. It has already been observed that appeal lies against a final order A combined reading of Section 63 of AJ&K Legislative Assembly Elections Ordinance, 1970, Sections 42(2), 42(12) and 47 of the AJ&K Interim Constitution Act, 1974, makes it abundantly clear that petition for leave to appeal is competent against the judgment, decree, order or sentence of the High Court and the administrative Courts and Tribunals dealing with the matters enumerated in subsection (1)(a), (b) and (c) of Section 47. Direct appeal under any law is provided in Section 42(2) of the AJ&K Interim Constitution Act, 1974 and Election Laws clearly fall in the definition of "other laws", Section 63 of which provides direct appeal in the Supreme Court against a final order.
8. No petition for leave to appeal lies from an interim order of the Election Tribunal in the Supreme Court. The instant petition for leave to appeal is therefore dismissed being incompetently filed. No order is passed as to costs. As the petition for leave to appeal has been dismissed, the application for issuance of stay order is also dismissed. Petition for leave to .