' ABAID ULLAH KHAN, J.-The petitioner in this constitution petition has called into question the order dated 11-10-1983, of the Election Tribunal refusing application for temporary injunction to restrain the respondent from acting as a member of the Local Council. The application for The. Temporary injunction filed by the petitioner was disposed of under one and the same order alongwith other eight similar applications filed in other election petitions.
2. The main reason which prevailed with the learned Election Tribunal to refuse the temporary injunction applications was that no irreparable loss would be caused to the petitioners if they are not granted the interim relief as prayed for because in case of success they may replace the successful candidate, but till then they are not entitled to any relief. The learned Tribunal in this connection referred to Abdul Wahid and others v. Din Muhammad and others (1) in which it was held that elected office-holder cannot be restrained from performing his function without final judgment through an interim injunction. It was further observed that it the successful
(1) PLD 1982 Lah, 168 candidates are restrained from holding the elected office, the people of respective areas would be deprived of any representation till the final disposal of the elections.
3. Learned counsel for the petitioner has assailed the impugned order on the grounds that the disposal of 9 applications by one and the same order is not proper as by a such disposal the Tribunal failed to apply its judicial mind to the facts of each individual case, that the consideration of irreparable loss to a voter or to the petitioner is not relevant consideration, rather the interest of the voters in general is to be kept in view and that such an interest is well-served by not allowing a person to continue in office who has procured his success through malpractices and by violating the election rules. Learned counsel for the petitioner in support of the plea that the election of the respondent was procured through malpractices has referred to the pleas taken in the election petition in this regard. These are, (1) use of buses and transport for conveyance of voters, (ii) three votes were cast of the ladies who were dead which shows that the vote : were allowed to be polled without production of Identity Cards and (ill) entry of Single Identity Card number on the counterfoil of certain votes. It was stressed that before rejecting the temporary injunction application, the learned Tribunal should have summoned the record which according to the petitioner would have substantiated these assertions.
4. The very perusal of the allegations regarding malpractice, corrupt practices and violation of the election rules made in the election petition would show that the same cannot be establsihed without reduction of evidence. In fact, the assertion that record should have been examined before disposing of the application in question amounts to conceding the fact that recording of evidence is necessary. In this view of the matter, it cannot be urged that the petitioner was able to make out a prima facie case. As regards the objection to the disposal of the temporary injunction application alongwith other applications under one and the same order, it may be noted that no objection appears to have been raised. Before the Election Tribunal as to the joint hearing of all these applications. In these circumstances, disposal of these applications by one order B cannot be objected to, especially, when no prejudice seems to have been caused by such a disposal. The plea of non-application of the judicial mind had also no substance as the learned Election Tribunal was justified in holding the view that an elected office-holding is not to be restrained from performing his functions without final judgment through an interim injunction. We have already held in the case of Ch. Muhammad Rafiq v. Election Tribunal W. P. No. 4397 of 1983, decided on 22- 10-1983 that "it is well-established that elected office-holders are ordinarily not to be restrained from performing their functions without final judgment and interim injunction in this respect is to be sparingly issued. From this we do not mean to hold that Election Tribunal has no jurisdiction to grant injunction if the circumstances of the case or the law warrant the grant of interim injunction."
The reluctance of the Courts to interfere at that stage in election matters is due to the fact that in case injunction is granted restraining an elected member from performing his functions, it would create a vacuum and difficulties for performance of public duties by public representatives. The choice of the electors cannot be set at naught except for very obvious causes or until the time that the assertions made, that the election had been procured through malpractices or by violating the law has been established. A perusal of the impugned order establishes that applying this very principle the learned Tribunal has refused to grant the temporary injunction. The refusal so made cannot be said to be suffering from any patent illegality or defect of jurisdiction.
5. For the reasons recorded above, this petition fails and is dismissed in limine.