ASIM HAFEEZ, J.---Petitioners have assailed order dated 13.03.2019 passed by Election Tribunal, Sargodha camped at Gujranwala, whereby application filed by the petitioners for produc ing additional evidence and to summon Returning Of ficer (RO), to confront RO with application sought to be produced, was dismissed.
2. Petitioners and respondents Nos, 3 to 7 contested local body elections for the seat of Chairman and Vice- Chairman of Union Council No,36 Monga r, District Sailkot. Petitioners were decla red as returned candidates vide Notification dated 07.12.2015. Responde nts Nos,3 and 4 challenged said election through filing of petition under section 38 of the Punjab Local Government Act, 2013 (Act XVIII of 2013). The petitioners submitted application seeking permission to produce additional evidence by way of producing alleged application filed by the respondent No,3 with the RO seeking verification and re-counting of votes, which application claimed to have been recovered from the record at the time of re-counting of votes conducted on 02.08.2018 under the orders of the Tribunal. The petitioners alleged that discovery of 7-liner application - sought to be produced as additional evidence - establish fraud and discard the credibility of application, earlier produced during evidence and exhibited as Exhibit P-4. The petitioners filed an independent application for initiating criminal proceedings on 08.08.2018, after discovery of said application. It is worth noting that application for additional evidence was filed on 03.10.2018 - after two months of gaining knowledge of said belatedly discovered application on 02.08.2018. Application for seeking permission to produce additional evidence was dismissed on 13.03.2019.
3. Learned counsel for the petitioners argued that order of dismissal is illegal. Per learned counsel, denial of opportunity to produce additional evidence and summoning of RO in this behalf would prejudice the case of the petitioners. Further contended that no adequate and ef ficacious remedy is available against the impugned order .
4. At the outset, learned counsel was confronted to explain that how this petition is maintainable against an interlocutory/interim order-when admittedly the election petition is pending adjudication, which proceedings are at final stage. The learned counsel submitted that the order passed had attributes of a final order . This argument is misconceived. The order impugned, for all intent and purposes, is an interlocutory/interim order and cannot be construed or treated as final order . The argument has an inherent defect, if it's a final order why constitutional petition is filed and not appeal under section 46 of (Act XVIII of 2013). It is expedient to reproduce section 46, ibid. "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."
[Emphasis underlined]
5. Interlocutory/interim orders are not made appealable. In exceptional cases, Constitutional jurisdiction can be invoked even against 1 interlocutory/interim orders by the Election Tribunals, wherein such orders are patently illegal, decided on erroneous point of lave and if not struck down would leave the party remediless. The next question is that whether impugned order falls in any one of such exceptions, warra nting interference in exercise of constitutional jurisdiction. It is essential to assess order in context of relevant rules. The procedure for trial before the Tribunal is governed and regulated in terms of rule 68 of the Punjab Local Government (Conduct of Elections)
Rules, 2013 (Rules of 2013), which is reproduced hereunder; "68. Procedure before tribunal;
(1) Subject to the provisions of the Act and the rules, every election petition shall be tried, as nearly as may be. in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908 (V of 1908);
(2) The tribunal may;
(a) .............
(b) ..................
(c) ....................
(d) refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous or vexatious ground, for the purpose of delaying the proceedings or defeating the ends of justice; and
(4) If the tribunal deems fit, it may call such witness for the purpose of examination before it."
[Emphasis underlined]
6. The application - sought to be produc ed as additional evidence came to the knowledge of the petitioners on 02.08.2018. Petitioners, independently , filed application on 08.08.2018 for initiating criminal proceedings against the respondent No,3. Application for seek ing additional evidence was filed on 03.10.2018, almost two months after gaining knowledge, without any explanation. Learned Election Tribunal held that no useful purpose would be served by accepting the application and that application was without any legal force. Whether the exercise of discretion is illegal and erroneous on the point of law .
7. Election Tribunal is vested with the jurisdiction to decide qua the relevancy of the witness and may summon any witness, it deemed essential. In this case, the permission sought was declined in the exercise of discretion. It is not the case of the petitioners that exercise of discretion by the learned tribunal is without lawful authority or of no legal effect. This Court, otherwise in exercise of constitutional jurisdiction, would not interfere, unless exercise of such discretion is shown to have suffered from any illegality , gross error of law or, if not IB set-aside, would leave petitioner without a remedy .
8. This court, without commenting on the merits of the case, which might prejudice the case of the parties, is not inclined to entertain this petition firstly as there is no reason to interfere in the interlocutory/interim order passed by the Election Tribunal and secondly the exercise of discretion by the learned tribunal does not suffer from any patent illegality and mis-application of law. Nothin g has been pointed to show that if the order impugned is not set-aside, it would leave the petitioners without a remedy . The petitioners may, still, at the final outcome of the election petition, question the legality of the interlocutory/interim order by filing an appeal against final order . This view is fortified in view of judgment by the august Supreme Court of Pakistan reported as Muhammad Raza Hayat Hiraj and others v.
The Election Commission of Pakistan and others (2015 SCMR 233 ). Relevant portion is reproduced hereunder; "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 petition."
9. In Muhammad Raza Hayat Hiraj's case, supra, it is noted that Civil Petition No,1619-L of 2014 was filed against the order by the Hon'ble Lahore High Court in Writ Petition No,22801 of 2014, whereby the writ petition filed against the order of the Election Tribunal, closing right of evidence of the applicant, was dismissed on 18.08.2014. Said Civil Petition was also dismissed by the August Supreme Court of Pakistan, while deciding numerous other petitions, relevant order is reproduced hereinabove. The exercise of discretion by the Election Tribunal by rejecting application for producing additional evidence creates no exceptional circumstances, otherwise. It is pertinent to point that in Muhammad Raza Hayat Hiraj's case, supra, section 67 of the Representation of the People Act (LXXXV of 1976) was interpreted, wherein expression 'Decision ' was employed. In the instant case, in terms of section 46 of (Act XVIII of 2013), expression used is 'final order' which, manifest the scope of the appeal and clear legislative intent. The judgment relied upon - appended with this petition and passed in Election Appeal No,84019 of 2017 is not relevant to the facts of the case, which judgment otherwise was passed in appeal filed under section 46,' ibid, and negates the argument of the petitioners.
10. No case is made out showing any patent illegality , gross error of law and/or showing loss of remedy against order impugned at the time of filing of appeal against final order , determining the claims and rights of the parties finally . In the circumstances, there is no reason to show indulgence in the exercise of constitutional jurisdiction to set-aside an interlocutory/interim order dated 13.03.2019.
11. In view of the above, this petition is incompetent, without any merit, and same is, therefore, dismissed in limine.