1. SHAFIUR RAHMAN, J.---This appeal under section 67(3) of the Representation of the People Act, 1976 (hereinafter referred to as the Act) has come up for hearing on a preliminary objection raised by the contesting respondent with regard to is competency.
2. Mian Zahid Sarfraz, the appellant, contested alongwith the four respondents election to the National Assembly seat from Constituency NA-69, Faisalabad-Il. The polling took place on 25th of February, 1985. In all 89876 valid votes, were polled. The contesting respondent Raja Nadir Pervaiz, respondent No.1 received 33202 votes the highest, followed next by the appellant Mian Zahid Sarfraz who polled 20,092 votes. The respondent No.1 was declared elected.
3. An Election Petition was filed by the appellant under section 52 of the Act. Numerous grounds were taken to challenge the election of respondent No.1. The Election Tribunal framed two preliminary issues as hereunder and proceeded to decide them first:- "(1) Whether the petitioner is not entitled to raise the objection of disqualification of respondent No.1 on account of the alleged non-raising of the said objection at the time of scrutiny of the nomination papers, if so, what is its effect on the election petition; and
(2) Whether respondent No.1 was disqualified under the law being elected or chosen as Member of National Assembly on account of his conviction by the Military Court and if so whether on account of such conviction which was well-known the respondent is not entitled to be declared elected by treating the votes cast in favour of respondent No.1 as 'throw away votes'."
4. The appellant appeared as hiss own witness and examined four witnesses who affirmed their affidavits. The respondent No.1 did not produce any evidence nor appeared himself as a witness.
5. The Election Tribunal held the first preliminary issue in favour of the appellant and against the respondent No.1 as it was not pressed but decided issue No.2 against the appellant giving elaborate reasons, therefore. After disposing of the two preliminary issues, the Election Petition was ordered to come up for framing of the issues on merits and further proceedings in the matter.
6. Aggrieved by this decision of the Election Tribunal dated 15-3-1986 disposing of preliminary issue No.2 the appellant filed an appeal.
7. Mr. Abid Hasan Minto, Advocate, the learned counsel for the contesting respondent No.1 raised a preliminary objection with regard to its competence. According to the learned counsel for the respondent No.1 subsection (1) of section 67 enumerates the kinds of order which the Election Tribunal is competent and required to pass while dealing with an Election Petition. Subsection (2) lends finality to such a decision except to the extent prescribed in subsection (3). According to the learned counsel for the respondent No.1, the decision referred to in subsection (3) of section 67 is the same as the Election Tribunal is competent to give and which is enumerated in subsection (1).
8. The decision now under challenge by the appellant being not one under any of the enumerated categories would on that reasoning be not appealable. In support of his contention, the learned counsel for respondent No.1 has relied upon the similar wording of the statute (West Pakistan Urban Rent Restriction Ordinance, 1959) as originally framed and the limitation, as canvassed by the learned counsel, read into it by the decision of this Court in Messrs Kandawala & Co. Ltd. v. Sh.
9. Rashidud Din 1969 SCMR 720. He has also referred to decisions in Ibrahim v. Muhammad Hussain PLD 1975 SC 457 and Manzar Bashir v. M.M. Asghar & Co. PLD 1978 SC 185, in support of his contention.
10. Mr.K.M.A. Samdani, Advocate, the learned counsel for the appellant, on the contrary, contended that the change in the language in subsection (3) from the language used in subsection (2) of section 67 is significant and must for that reason be given full effect. Definite article 'The' has been replaced by 'a' before the word "decision" thereby extending the decisions which have been made appealable. The learned counsel has also drawn our attention to section 63 and section 76 to demonstrate that independent of what is provided in subsection (1) of section 67, the disposal of the Election Petition can take place even during the course of the trial and not necessarily at the conclusion of the trial as envisaged by subsection (1) of section 67. Such orders as are indicated in section 63 and section 76 would necessarily be appealable and the scope of subsection (3) of section 67, therefore, goes beyond what is indicated in subsection (1) of that section. The learned counsel also referred to the explanation to be found at the end of section 67 whereby the decision of the Tribunal was required not to be deemed to include an order made by the Commission in the exercise of its powers under Article 13 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977. But for such a deeming clause,, the decision of the Tribunal would have been a decision of the Tribunal and appealable under subsection (3) of section X67.
11. The learned counsel has also taken us to the definition of the word 'decision' as found in Saunders'
12. Words and Phrases, Volume 2 and Black's Law Dictionary and also, as given in Mokal's Law Terms and Phrase Judicially interpreted. It 'implies determination of a controversy on Act or law, or of both.
13. As in determining the question of disqualification of an elected candidate a decision is given, on the express words of subsection (3) of section 67 it becomes appealable. As regards the decision under the Rent Control Act, the learned counsel for the appellant contended that the policy and the scheme of the two enactments are different; in the Rent Restriction Ordinance disputes between private person, landlord and tenant are dealt with while under the Election Laws serious problems of Government and its proper functioning are involved; under the Rent Laws two appeals are provided while under the Election Laws there is only one right of appeal and that too to the highest Court of the country and the emphasis in the Election Law as well appears to be; to ensure expeditious disposal and to avoid protracted proceedings.
14. Finally, the learned counsel for the appellant contended that the procedure for trial of election petitions prescribed by the Election Commission under section 62 of the Act itself in Rule 7 provides for the decision of a question of the qualification or disqualification of a returned candidate as a preliminary issue. There being a specific provision for such an issue being tried as a preliminary one its decision will in consequence be appealable, when and in so far it relates to a controverted question of fact and law with regard to the qualification or disqualification of the candidate.
15. The law which comes up for examination and construction is primarily section 67 and incidentally section 63 and section 76 of the Act and Article 13 of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977. These are :re-produced hereunder:- "67. Decision of the Tribunal.--(1) The Tribunal may, upon the conclusion o the trial o n 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 subsection (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.
16. Explanation.--In this subsection, 'decision of the Tribunal' shall not be deemed to include an order made by the Commission in the exercise of its powers under Article 13 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977."
17. "63. Dismissal of petition during trial.--The Tribunal shall dismiss an election petition if--
(a) the provisions of section 54 or section 55 have not been complied with; or
(b) if the petitioner fails to make the further deposit required under subsection (4) of section 62."
18. "76. Failure of petitioner to appear.--Where, at any stage of the trial of an election petition, no petitioner makes an appearance the Tribunal may dismiss the petition for default, and make such order as to costs as it may think fit."
19. "13. Power of Commission to declare a poll void.--(1) If, from facts apparent on the ace of the record or after such summary inquiry as it deems necessary, the Commission is of the opinion that, by reason of grave irregularities or violation of the provisions of the Representation of the Peoples Act, 1976 (LXXXV of 1976), or the rules made thereunder, the poll in any constituency ought to be declared void, the Commission may make a declaration accordingly, and, by notification in the official Gazette, call upon that constituency -to elect a member in the manner provided for in section 108 of the said Act.
(2) The Commission may exercise the power conferred on it by clause (1) at any time before the name of the returned candidate has been published under subsection (4) of section 42 of the Representation of the Peoples Act, 1976 (LXXXV of 1976), or within one hundred and twenty days of such publication.
(3) A case taken up by the Commission and pending before it at the expiration of the period specified in clause (2) shall not abate and shall be decided by the Commission.
(4) While exercising the powers conferred on it by clause (1) the Commission shall be deemed to be a Tribunal to which an election petition has been presented and shall, notwithstanding anything contained in Chapter VII of the Representation of the People Act, 1976 (LXXXV of 1976), regulate its own procedure.
(5) For the purpose of an election to fill a casual vacancy, reference in this Article to the Commission shall be construed as reference to the Commissioner."
20. The crucial word used in section 67 requiring consideration is "decision". As pointed out in Saunders, "decision" implies the exercise of a judicial determination as the final and definite result of examining a question." A more elaborate discussion of the meaning of this word in all its amplitude and context is found in Corpus Juris Secundum---Volume 26 starting at pages 41 and 42 in the following words:- "A popular and not a technical or legal word and a very comprehensive term, having no fixed, legal meaning. It has been said that a decision necessarily involves a dispute, actual or potential, and the reaching of a conclusion... In its common use, the word has been defined as meaning act of deciding, settling, or terminating, as a controversy, by giving judgment on the matter at issue; determination or result arrived at after due consideration, as of a question or doubt; settlement, or conclusion. Strictly speaking, it is intended to embrace the last act of the Court, in other words, the judgment a deciding of the case for or against one of the parties, and, as used in particular statutes, may mean a final decision, and in its broad, generic sense it means a final determination of the rights of the parties in the action."
21. After enumerating the nature or the types of orders that an Election Tribunal can pass under section 67 of the Act subsection (2) provides that such a decision as is enumerated in subsection
(1) is final except for the right of an appeal provided for in subsection (3). The finality lent to such a decision is made subject to an exception of appeal. This necessarily enjoins that subsection (2) and subsection (3) of section 67 are to be read together and the two alongwith the empowering provision of section 67. It is true that while enacting, the conclusion of the trial has been mentioned in section 67 but in section 63 and section 76 provision has been expressly made for passingsuch an order as is envisaged in section 67 during the trial and not at its conclusion. Nevertheless, the order is of the type as is enumerated in subsection (1) of section 67 of the Act and has the effect of either concluding the trial or is passed at the conclusion of the trial. This fact of conclusion of the trial or concluding the trial by that order and the order conforming to what is enumerated in subsection (1) section 67 limits the scope of the expression a "decision" as contained in subsection
(3) of section 67 of the Act. The reference to Article 13 in the explanation is intelligible because it is under a deeming clause, clause (4) of Article 13, that an order passed under Article 13 has been given the character and status of an order passed by a Tribunal trying an election petition. The deeming effect of clause (4) of Article 13 has been totally avoided by another deeming clause contained in the explanation appended at the end of section 67 of the Act.
22. The attention of the learned counsel for the appellant was drawn to the decision of this Court in Messrs Kandawala's case where the statute concerned contained in its various provisions spread over throughout the enactment the powers of the Rent Controller to pass specific orders and then a provision in somewhat general term as is found here was made in the law that "any party aggrieved by an order passed by the Controller may within thirty days from the date of such order prefer an appeal in writing to the appellate authority having jurisdiction". A restricted meaning was given to the expression "an order" to limit it to those orders which the statute expressly authorised the Controller to pass and not those which he could in the normal conduct of proceedings and handling of the cause possibly pass. In the case before us section 67 has attempted to enumerate at one place the types of order that the Election Tribunal can pass while concluding the trial or so as to conclude the trial and the appellate provision immediately follows thereafter and by making reference to the finality of such order except to the extent permitted by the provision conferring a right of appeal. The principle of interpretation having been enunciated by this Court in Kandawala's case there is no particular reason to depart from it. As regards the scheme and policy of the two enactments that will be dealt with after considering the general principles governing the appellate powers and rationale of the view taken in Kandawala's case. The general principle has been expressed in the following words in Volume 4 of Corpus Juris Secundum at pages 89, 238 and 244:- "As a general rule, a writ of error lies only from a final judgment or decree or an award in the nature of a final judgment. Such rule represents a policy of the law which is quite uniformly adhered to; but the rule is not inflexible, since it is held to be not jurisdictional with the reviewing ,Court, and the writ may be extended by statutes not only to final judgments but also to orders granting a new trial, or to a refusal to enter judgment for want of a sufficient affidavit of defenseIt is the general rule, therefore, that an appeal, writ of error, exceptions, or other proceeding for review will not lie from or to an interlocutory or intermediate decision unless it is expressly permitted bystatutes, rule, or constitutional provisionThe policy behind, or the ground for, the statutes, rules of Court, and decisions embodying this principle is that litigation should not proceed piece-meal, that intermediate appeals would unduly delay the final disposition of litigation, and that a complete disposition of the matter in the trial Court may make an appeal moot."
23. As to what is the distinction between the final judgment and interlocutory order, the following observations appear in the same Volume at pages 252 to 254 in the following words and are relevant to the decision: - "Except where it is otherwise provided by statute, an order, judgment, or decree must possess the essential characteristics of finality in order that an appeal may lie therefrom. What is a final judgment, with respect to review, has been said to be a question for the Courts rather than the legislature .... Ordinarily, a judgment, order, or decree which determines the merits of the controversy, or the rights of the parties, and leaves nothing for future determination or consideration, is final and appealable, and it is not final or appealable unless it does these things.
24. The test of finality of a judgment or decree to support an appeal is not whether the cause remains in fieri awaiting further proceedings in such Court to entitle the parties to their acquired rights, but whether such judgment or decree ascertains and declares such rights embracing the substantial merits of the controversy and material issues litigated or necessarily involved in the litigation; the test has also been held to be whether the judicial labor is at an end."
25. It is clear, therefore, that the appeal provision being hedged in by the requirement of "a decision" and the nature of decision suggested by reference to consequential orders in subsection (1) of section 67, the appeal is competent only against those decisions which conform to such enumerated or specified orders.
26. The policy of election law as well as Rent Control Law is the same, notwithstanding a material difference in the subject-matter of each. Both are separately framed, both are self-contained, both are directed towards achieving expeditious and substantial disposal of the cause brought before the designated/ authority, Tribunal in the case of election matters and Controller in the case of Rent and allied matters. The principles of construction of statutes always draw upon first on the express language of the statute, next the context, then the object, and purposes and last of all on the policy. If the express language presents no difficulty in interpretation resort cannot be had to the' context. Where the context and the language resolve the meaning resort to object and purposes is uncalled for.
27. The analogy of 'case decided' mentioned in section 115, C.P.C. To which reference has been made by the learned counsel for the appellant, is an altogether different power. It is a power manifestly conceded for exercising superintendence and control and is confined to those orders in which no appeal lies.