1. ' The necessary facts are that the petitioner Pir Sabir Shah, and respondents No,2 and 3, Shad Muhammad Khan and Akhtar Hussain Shah, were elected as members of Provincial Assembly of N.-W.F.P. On the tickets of Pakistan Muslim League (N), hereinafter to be called as P.M.L. (N), in the general elections held in the month of October, 1993. The P.M.L. (N) was also able to secure 12 more seats apart from the success of the petitioner and respondents No,2 and 3, in the Assembly. The petitioner was elected as Leader of the House and as such assumed the office of Chief Minister of N.-W.F.P.. Respondent No,2 was elected as Deputy Speaker while respondent No,3 was appointed as a Minister by the petitioner in his Cabinet. The Pakistan People's Party emerged as the largest opposition party in the Assembly. It is alleged that Pakistan People's Party won over the loyalty of respondents Nos. 2 and 3 and in consequence, they gave a notice of No-Confidence Motion against the petitioner. To oppose the No-Confidence Motion, a meeting of the Parliamentary Group of P.M.L. (N) was held in which respondents Nos. 2 and 3 were held to be guilty of Floor Crossing.
2. They were, therefore, disqualified on 22-2-1994 as members 'of the Assembly. An intimation was conveyed by the Parliamentary Group of P.M.L. (N) to respondents Nos.2 and 3 that they had been disqualified because of their defection. On 23-2-1994, on a point of order, the Speaker of the N.- W.F.P. Assembly ruled that respondents Nos.2 and 3 stood disqualified because of their defection and as such they had to be treated as strangers in the House. They were, accordingly, ordered to leave the House forthwith. This being so, proceedings in respect of Vote of No-Confidence against the petitioner could not be held on 23-2-1994. Respondents Nos.2 and 3, however, challenged the ruling of the Speaker dated 23-2-1994 and also the decision of their disqualification having been taken by P.M.L. (N) in two separate Constitution petitions in Peshawar High Court. The learned Court vide order dated 28-2-1994 suspended the ruling of the Speaker. The petitioner challenged this order before the Hon'ble Supreme Court of Pakistan. The appeal was accepted and, consequently, the case was remanded to Peshawar High Court for deciding it afresh after hearing the parties.
3. Nevertheless, during the pendency of the petition, P.M.L. (N) withdrew its decision of .Disqualification of respondents Nos. 2 and 3. The P.M.L. (N) also declared that they would move the learned Election Commission of Pakistan under section 8-B of the Political Parties Act, 1962 for obtaining the requisite relief. The Speaker of the Assembly also withdrew his ruling dated 23-2-1994 and restored the Membership of respondents Nos.2 and 3 in the Assembly. The learned Election Commission commenced proceedings on the References against respondents Nos.2 and 3 on 31-3-1994. On 4- 4-1994, a rejoinder was filed by the petitioner. The issues arising out of the divergent pleadings of the parties were framed by the learned Commission on 6-4-1994. The parties were permitted to file their lists of witnesses and the documents, if any. A list of witnesses vide Annexure 'E' and list of additional documents vide F/1, F/2 and F/3 were filed by the petitioner. On 12-4-1994 the following interim order was passed by the learned Election Commission:-- "This order may be read in conjunction with the order, dated 11th April, 1994.
(2) Mr. Iftikhar Gillani has applied for summoning the 40 witnesses but yesterday he gave up all the witnesses except those who have already been examined and Mr.Younis Habib, Chief Operating Officer/Chief Executive, Mehran Bank, Karachi (S1.No,7), Staff Reporter daily "Nation" who reported "Sherpao releases 42 supporters list" (S1.No,15), Editor 'News Desk', daily "Pakistan" (Sl.No,19), Amir Mateen Reporter, Press Gallery (SI.No,26), Photographer, daily Ithabrain', who took photographs on 24th February, 1994 (SI.No, 31 36), Photographer daily `Nawa-e-Waqt, Lahore', who took photograph on 24-2-1994 (SI.No,33), Photographer daily 'Pakistan' (SI.No,32), Photographer daily `Khabarnama'
4. (SI.No,35) and Photographer daily `Nawa-e-Waqe, Rawalpindi who took photograph on 22-2-1994 (Sl.No,39).
(3) We are hearing this case almost on day to day basis in deference to the observations of the Peshawar High Court. Since the Peshawar High Court expects us to dispose of this case expeditiously, if we summon these witnesses, it will inordinately delay the proceedings. However, to give a fair chance to the petitioner to state their case will allow them opportunity to produce any or all the abovementioned witnesses on the next date of hearing, which will be fixed in Court room in the presence of the parties.
5. ' The petitioner has challenged the validity of the above-quoted order by filing this petition before this Court.
2. It is contended by the learned counsel that the witnesses as mentioned in the list are not under the control of the petitioner and as such it could not be possible for him to produce them in Court.
6. It was, therefore, the duty of the Commission to have summoned the witnesses to appear before it for a just and fair decision of the References. It is argued that there is nothing on record to show that any attempt was made by the petitioner to delay the proceedings before the learned Commission. He contends that expeditious disposal of the References would not mean in law that the petitioner should be deprived of an opportunity to prove his case. Learned counsel continues to submit that the impugned order dated 12-4-1994 is void on the face of it and as such the entire superstructure to be raised on it would fall because of inherent defects in the impugned order.
7. Learned counsel has also produced a copy of an application in Court today which he gave to the learned Commission praying for recalling the impugned order. According to the learned counsel, the said application was also turned down by the Commission without passing any order on it.
8. Learned counsel, therefore, contends that this Court is always competent under Article 199 of the Constitution to regulate and supervise the proceedings which are to be initiated by the Tribunals below. Learned counsel submits that the petitioner wants to prove that respondents Nos.2 and 3 were won over by the Opposition on account of consideration other than legal by heavily bribing them. He produced in Court a press cutting from daily 'News' dated 17-4-1993 to contend that respondents Nos.2 and 3 have, in fact, been bribed and as such have been won over by the Opposition.
5. We have anxiously considered the arguments of the learned counsel. At his request, the case was also adjourned to another day to enable him to prepare his brief further. We have also perused the relevant record produced before us with the assistance of the learned counsel. At this stage, we are not called upon to examine the merits of these arguments inasmuch as the impugned order dated 12-4-1994 shall automatically merge into the final judgment which still had to be passed by the learned Commission.. Under section 8-B (3) of Political Parties Act, 1962, the final order/judgment to be passed by the Eledtion Commission is appealable to the learned Supreme Court. This being so, the grievance of the petitioner, if any, against the impugned order may be agitated by him in full in appeal against the final order/judgment before the learned Supreme Court. It is well settled that in a case like this, the decision should always be given in a consolidated form rather than to be fragmentary so as to avoid the multiplicity of the litigation. In Ibrahim v. Muhammad Hussain (PLD 1975 SC 457), the following observation was made by the Hon'ble Supreme Court:- "After hearing the parties' evidence, the Rent Controller by order dated 31-10-1966 found the issue in favour of the respondent. An appeal by the petitioner against the above finding was dismissed by the learned District Judge on 18-5-1967. Further appeal to the High Court was similarly dismissed by order dated 28-1-1975.
9. ' Reference has been made to these dates to underline the unfortunate fact that it has taken almost 10 years to bring the matter to this Court for its decision on a purely preliminary point, leaving the main controversy about the liability of the respondent for ejectment to be determined in the fresh round of litigation between the parties. Fragmentary decisions of this character have been described by their ' Lordships of the Privy Council in Nanhelal v. Umrao Singh (AIR 1931 PC 33) 'as most inconvenient (which) tend to delay administration of justice'."
10. ' The above view was reiterated in Abdur Rehman v. Haji Mir Ahmad Khan and another (PLD 1983 Supreme Court 21), in the following words:-- "This Court has time and again cautioned against piecemeal dicisions of these and similar matters. An exposition of the principle that it is negation of justice, can be found in Ibrahim v.
11. Muhammad Hussain (PLD 1975 SC 457). The fact that it was an appeal case will not make any difference in so far as the basic principle is concerned?
12. From the above view already expressed by the Hon'ble Supreme Court, it is clear that this Court would not be competent to interfere in the impugned order. The petitioner was also not rendered remediless inasmuch as he could still voice his grievances, if any, before the Supreme Court in case, final judgment was passed against him. No contrary decision could be cited by the learned counsel in this behalf. We are, therefore, unable to subscribe the view that the impugned order is fit to be challenged in the Constitutional jurisdiction of this Court in these proceedings. Before invoking the Constitutional jurisdiction, it is also the prime duty of the petitioner to demonstrate that there is no other adequate and efficacious remedy open to him. Article 199 of the Constitution opens with a rider that the Constitution petition would be competent only when the High Court was satisfied that there was no other adequate and speedy remedy available for the redress of grievances. In case of Abdul Rehman (supra), the learned Supreme Court concluded the dispute as follows:-- "Instead of raising the second jurisdictional question based on the status of the property, before the lower forum (where no other similar question was in fact raised, regarding the status of the parties), and then pursuing the matter in first appeal which was as a matter of right and of wider scope, petitioner sought to divert the normal remedial process provided by law, and invoked Constitutional jurisdiction of the High Court. It could be exercised only on proof of non-availability of adequate remedy. This proof is not forthcoming in this case."
13. The petitioner has, undoubtedly, an alternate and effective remedy open to him before the Hon'ble Supreme Court, in case, the final order/judgment is passed against him. The learned Election Commission is already busy in recording the evidence of the parties on the issues. It may also be open to the learned Commission to see as to which witnesses are necessary to be examined keeping in view the requirement of the issues framed in the case. It is evident that the impugned order was passed in the presence of the petitioner and his learned counsel and that they did not raise the objection before the Commission which is now being raised in these proceedings.
14. Learned counsel failed to point out