MUDASSIR KHALID ABBAS', J.-- Through this petition under Article 199 of the Constitution, petitioners have challenged the legality of order dated 30.08.2016 passed by respondent No.1/Election Tribunal. Multan, whereby the application filed by petitioners under Rule 70(b) of Punjab Local Government (Conduct of Elections) Rules. 2913 for dismissal of election petition of respondents Nos.2 and 3, was dismissed.
2. Precisely the facts relevant for disposal of this writ petition are that respondents Nos.2 and 3 have filed an election petition against the petitioners which is pending before the Election Tribunal, Multan/ respondent No. 1. During the pendency of the petition, petitioners filed an application under Rule 70(b) of the Punjab Local Government (Conduct of Elections) Rules, 2013 where the petitioners have prayed for dismissal of the election petition on the ground that the averments of the petition filed by respondents Nos.2 and 3 are vague and the relief sought by them cannot be granted even if the agonizing process of taking the evidence is permitted and the allegations in the election petition do not take sanction provided for relief under Sections 48 to 51 of the Punjab Local Government Act, 2013. This application was seriously contested by respondents Nos.2 and 3 on the ground that the issues have been framed, case was fixed for evidence but the petitioners are avoiding to face the trial. Moreover, Rule 70(b) of the Punjab Local Government (Conduct of Elections) Rules, 2013 is not applicable to the case of the petitioners. Learned Election Tribunal vide order dated 30.08.2016 has dismissed the said application which has been impugned before this Court.
3. Learned counsel for the petitioners contends that the impugned order was passed at the back of the counsel for the petitioners without any opportunity of hearing. It is further contended that allegations leveled in the election petition are not specific and are vague in nature. It is further argued that. the election petition cannot be left to make the petitioners to undergo the process of trial which would ultimately fail.
4. On the other hand, learned counsel for respondents has opposed this petition on the ground that Rule 70 Sub-Rule (b) is not applicable in the present case as the issues have been framed and the case is fixed for recording of evidence. Moreover, specific allegations have been made in the petition which require recording of evidence.
5. I have given conscious thought to the arguments of learned counsel for the parties and perused the record.
6. Without commenting on the merits of the case it is observed that personal bias towards the petitioner is floating on the surface of the record with reference to the manner in which the impugned order was passed.
7. It is a matter of record that besides an application under Rule 70(b) of Punjab Local Government (Conduct of Elections) Rules, 2013 culminated in the impugned order another application regarding the submission of file of the case to the Election Commission of Pakistan was also adjudicated by Tribunal on the same date, prior to the hearing of the application under Rule 70(b) of the Rules ibid. Primary argument advanced by the present petitioners is that impugned order was passed in their absence. Although the impugned order reflects the presence of the counsel of writ petitioners, however, this seems to be unreliable because in earlier order it has been stated by the tribunal that the learned counsel for respondents Nos.1 and 2/writ petitioners had already left the tribunal. This negates the presence marked in the impugned order.
8. Order passed prior to the impugned order clearly indicates that there was an exchange of hot words between the presiding officer and the advocates present in the court a day prior which according to the learned election tribunal had taken place because request to adjourn the election petition was declined.
9. Bias has been elaborately described in Asif Ali Zardari's case cited as PLD 2001 Supreme Court 568 that personally hostile to a party as a result of even happening either before or during the trial is one of the kinds of bias. Moreover, the question required to be satisfied in the mind of a litigant that he would not get a fair trial. This has been discussed in a very comprehensive manner by Hon'ble Supreme Court in the aforesaid referred judgment in the following terms:- "Bias is said to be of three different kinds:
(a) A Judge may have a bias in the subject-matter which means that he is himself a party or has direct connection with the litigation, so as to constitute a legal interest.
A 'legal interest' means that the Judge is 'in such a position that a bias must be assumed'.
(b) Pecuniary interest in the cause, however slight, will disqualify the Judge even though it is not proved that the decision has in fact been affected by reason of such interest. For this reason, where a person having such interest sits as one of the Judges, the decision is vitiated.
(c) A Judge may have a personal bias towards a party owing to relationship and tire like or he may be personally hostile to a party as a result of events happening either before or during the trial. Whenever there is any allegation of personal bias, the question which should be satisfied is -- "Is there in the mind of the litigant a reasonable apprehension that he would not get a fair trial?"
The test is whether there is a 'real likelihood of prejudicial, but it does not require certainty.' Real likelihood' is the apprehension of a reasonable man apprised of the facts and not the suspicion of fools or capricious persons.
No doubt, the Judges of the superior Courts are blessed with a judicial conscience but question nonetheless is whether a particular Judge of the Subordinate or the Superior Judiciary against whom the allegation of bias is alleged is possessed of judicial conscience. This litmus test is indeed very difficult but certainly not impossible. The circumstances of a particular case wherein bias of a Judge is alleged would themselves speak volumes for the same. In other words, the principle is well-settled that a Judge of the superior Court is a keeper of his own conscience and it is for him to decide to hear or not to hear a matter before him. However, in the present case Supreme Court declined to adhere to the said settled principle because bias is floating on the surface of the record."
While application of the afore-cited principles in the present case it becomes explicitly clear that bias on behalf of learned election tribunal reflected in the haphazard manner in which the impugned judgment was passed and observations made in earlier order in the same case.
10. It may be observed that bias is linked with another principle of natural justice i.e. Audi alteram partem (hear the other side). Whereas in this particular case arguments/stances of the respondents have been fully incorporated in the impugned order, in the absence of the petitioners.
Article 10-A of the Constitution also protects the right of a party for free and fair opportunity of hearing.
11. It may be noted that the election petition/case was transferred from the Election Tribunal, Bahawalpur to Election Tribunal, Multan through a judgment dated 25.10.2016 by this Court in W.P.
No.6740/16 i.e. after passing of the impugned order. Although this cannot be made basis for deciding the case in hand, however, it can be safely observed E that element of bias and partiality had already existed in the proceedings before the Election Tribunal, Bahawalpur.
What has been discussed above, this petition is allowed. Application filed by writ petitioners under Section 70(b) of Punjab Local Government (Conduct of Elections) Rules, 2013 shall deemed to be pending before the Election Tribunal, Multan, who shall decide the same afresh on merits, within 10- days after receipt of this order. Any observation made in this judgment shall not effect the proceedings/merits of the case in any manner.