Through this single order, I propose to decide instant writ petition alongwith connected Writ Petitions No, 6933, 9485, 7662, 8717, 16045 and 10094 of 2016 as common question of law is involved in all these writ petitions.
2. Aggrieved from the orders of re-counting, passed by the Election Tribunal in the above- mentioned writ petitions, the petitioners have filed the writ petitions to challenge the `validity and the legality of the impugned orders.
3. Learned counsels for the petitioners submit that Election Tribunal passed the impugned orders without any basis, without properly observing the method & procedure as enunciated in Punjab Local Government Act, 2013 and on the vague allegations. To supplement his arguments, learned counsel for the petitioners relies on the cases reported as Zia-ur-Rehman u. Ahmed Hussain (2014 SCM R 1015), Ghazanfar Abbas Shah v. Khalid Mehmood Sargana (2015 SCMR 1535), Muhammad Ashraf v. Tariq. Javed (2007 SCM R 34), &whir Ahmad v. Deputy District Education Officer (2005 SCM R 1040), Jam Madad Ali v. Asghar Ali Junejo (2016 SCM R 251), Moan Mohammad Farooq v.
Election Tribunal (1988 MLD 2949), Zuifiqar Ali v. Election Tribunal (2000 M LD 746). Conversely, the learned counsels for the private respondents state that the petitioner have a right of appeal under Section 46 of the Act and neither the said provision nor any other in the Act provides for the filing of an appeal or writ petition against an interlocutory order. Hence, the writ petitions are not maintainable. In support of their arguments, they have also drawn my attention to the dictum laid down by the Honourable Supreme Court of Pakistan in CPLA No 1138/2016 & CPLA No, 1139/2016 as well as reported judgments i,e, Mohammad Naeem ICasi and others v. Abdul Latif and 7 others (2005 SCM R 1699), Mohammad Asim Kurd alia Gailoo u. Nwabzada Mir Lashkari Khan Raisani and 11 other (1998 SCM R 1597) and Muhammad Raza Hayat Hirqj u. Election Commission of Pakistan (2015 SCM R 233).
4. Objection with regard to non-maintainability of writ petitions against the interlocutory order of the Tribunal is correct as per scheme of the Act and legal position enunciated in the case-law on the subject matter while cases referred to by the learned counsels for the petitioners the same are distinguishable. Since they pertain to decisions after the election disputes had been finally decided.
The Hon'ble Apex Court has seductively held in CPLA No, 1138/2016 & CPLA No, 1139/2016: The Act governs the subject and attends to the filing of election petitions (Section 38), constitution of election tribunals (Section 39), powers vesting in election tribunals (Section 40) and the decisions of election tribunal (Section 41). Section 46 of the Act, which provides for an appeal against final orders of an election tribunal, is reproduced hereunder:
46. Appeal against the orders of Election Tribunal.
"(1) Any person aggrieved by a final order of an Election Tribunal may, within thirty days of the communication of such order, prefer an appeal to the Lahore High Court.
(2) The Lahore High Court shall decide an appeal preferred under sub-section ( 1) within three months."
Section 46 of the Act provides that against the "final order of an Election Tribunal" an appeal can be preferred to the High Court, significantly, it does not provide for an appeal against any order or interlocutory order. Mr. Babar Awan contends that since the status does not permit an appeal against an interlocutory order therefore the constitutional jurisdiction of the High Court under Article 199 of the Constitution can be invoked. We cannot bring ourselves to agree with the learned counsel because it will not only defeat the specific language of the Act but would also unnecessarily delay the disposal of election petitions the early disposal, of which the legislature has mandated by stipulating in sub-section (2) of Section 46 that appeals shall be decided within a period of three months. The tenure of elected persons is of a limited duration therefore the early decision of election disputes must not be thwarted, if challenges are permitted to be made to interlocutory orders, through petitions filed before the High Court which may eventually also come before this Court, then the remedy of an election petition and an appeal will be rendered illusory because in a probability the term of the person whose election has been challenged would have been completed or it would be close to completion. In any event a three member Bench of this Court in the case of Muhammad Raza Hayat Miraj (above) held (paragraph 36, page 253) that: "It follows from the above discussion that the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its constitutional jurisdiction as the petitioners before the Court, had a remedy available to them by way of appeal under section 67 of the Act after disposal of the election petitions. The impugned judgment of the Lahore High Court dated 28.2.2014, therefore, is maintained and similar opinion of the High Court of Sindh Ali Gohar Khan Mahar's case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar's case (supra); is affirmed.
There is no reason for us to hold that me aforesaid principle is not applicable to local body elections.
5. By examining the record in the light of the provisions of the Act, I am therefore of the considered opinion that the writ petitions filed against the interlocutory orders of the Election Tribunals constituted under the Punjab Local Government Act, 2013 are not maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan and uphold the impugned orders.
Consequently, these petitions are dismissed.