' SHARIF HUSSAIN BOKHARI, J.---This order shall dispose of W.Ps. 12770 and 12771 of 1994 as both are directed against the interlocutory order dated 9-8-1994, passed by the learned Election Tribunal, Punjab of Mr. Justice Ihsanul Haq Chaudhary, in Election Petitions Nos. 85 and 86 of 1993, wherein the election, as returned candidate, of Dr. Sheela B. Charles, had been challenged.
2. The brief facts are that the petitioner and respondent No, 2 herein and a few others contested the general elections held on 9-10-1993 for the five seats of Punjab Provincial Assembly, reserved for Christian community. Ch. Fateh Jang (respondent No, 2 in W.P. No, 12770 of 1994) filed Election Petition No,85 whereas Qaisar Ifraeem Saroya (respondent No, 2 in W.P. No, 12771 of 1994) filed Election Petition No, 86 of 1993, both against the present petitioner.
3. The notification declaring the present petitioner and four others as returned candidates was issued on 18-10-1993, but in both the afore-noted Election Petitions only the election of Dr. Sheela B.
Charles, the present petitioner, has been challenged. The election petitions are, therefore, being contested only by the present writ-petitioner, although the other candidates were also made pro forma respondents in the election petitions.
4. In both the election petitions the petitioners therein claimed that they secured more votes than Dr. Sheela B. Charles, the writ-petitioner, therefore, they should have been declared as returned candidates. They, inter alia, contended that the ballot papers were not counted properly and there were patent errors and omission in preparation of the final results on the basis of Form XVI-A.
5. The present petitioner, before filing the written statement, submitted `Preliminary Objections' to the maintainability of the Election Petition.
6. The learned Election Tribunal observed that the discrepancy is only alleged in the computation of votes at the level of Returning Officer, therefore, the recounting was the only mode of resolving the controversy and to determine` which of the contesting candidates had secured the highest number of valid votes. The learned Election Tribunal finally observed that: "There are other ways but not safe and sure except the recounting of the ballots in respect of thirty-five constituencies, mentioned in para. 14 above". The learned Election Tribunal, therefore, directed the Punjab Election Commissioner to produce before the learned Additional District and Sessions Judge, Lahore the ballots pertaining to Constituencies Nos. 45, 60, 70, 75, 76, 79, 83, 91, 98, 105, 107, 108, 113, 116, 119, 120, 126, 136, 144, 146, 156, 158, 164, 177, 181, 184, 185, 191, 197, 216, 222, 223, 230 and 237, who shall make recounting of these ballots and submit his report to the Election Tribunal.
7. This order was initially challenged by the present writ-petitioner in appeals before the Hon'able Supreme Court. However, the appeals were withdrawn on 18-10-1994. Thereafter, the present writ petitions were filed in this Court challenging the order dated 9-8-1994 passed by the learned Election Tribunal, inter alia, on the grounds that the impugned order was passed without the written statement having been filed by the present petitioner and without adjudicating upon the preliminary objections as to the maintainability of the election petitions and that the recounting was not justified by any provisions of the relevant law and further that the impugned order is against the dictum of the Hon'able Supreme Court in the case of Kanwar Ijaz Ali v. Irshad Ali (PLD 1986 SC 483) in which it was held that: "recounting the ballot papers can only be ordered if the conditions laid down in this behalf are fulfilled and the returning officer is satisfied that the request is reasonable".
8. The learned Election Tribunal, in para. 14 of the impugned order has observed that: "The learned counsel for the returned candidate also objected that recounting amounts to fishing which is not permissible. The argument is against the record because Ch. Fateh Jang has sought re-calculation in respect of only seven constituencies while the other petitioner has asked for the following constituencies". Thereafter, the learned Election Tribunal held as follows:--
9. "It is nobody's interest that the matter should be hushed up.
' Therefore, to keep the election process transparent and clean it has to be found out as to when there was interference in the election result. This is also essential to ward off such illegalities recurring in future. There are other ways, but not safe and sure except the recounting of the ballots in respect of thirty-five constituencies mentioned in para. 14 above."
9. The impugned order dated 9-8-1994 has not finally disposed of the matter and decided the election petitions. Even after the recount of the ballot papers, as directed by the learned Election Tribunal, the election petitions have to be finally decided by the learned Election Tribunal. The impugned order A will merge in the final decision of the Election Tribunal, which is subject to appeal before the Hon'able Supreme Court under section 67 of the Representation of the People Act, 1976.
The impugned order is only an interlocutory one, therefore, cannot be challenged in these writ petitions, unless shown to be without jurisdiction. The Hon'ble Supreme Court has held in the case of "Ijaz Shafi v. Ali Ashraf Shah" (PLD 1994 SC 867) that objection with regard to non-maintainability of appeal against interlocutory order of the Tribunal is correct as per scheme of the said Act and legal position enunciated in the case-law on the subject. The petition is still pending before the learned Tribunal and final order is yet to be passed against which appeal could competently be filed before the learned Supreme Court. In this judgment the Hon'able Supreme Court has also relied on its previous judgments in the cases of "Mahmood Azam Faruqui v. Maulana Muhammad Shafi" (1974 SCMR 471); "Mian Zahid Sarfraz v. Raja Nadir Pervaiz" (1987 SCMR 1107); "Habibul Wahab Alkhairi v. Sheikh Rashid Ahmad" (PLD 1939 SC 760) and "Bhagwandas v. The Returning Officer" (1990 SCMR 1228).
10. In the case of Sabir Shah v. Election Commission of Pakistan (PLD 1994 Lahore 516) a learned Full Bench of this Court held as follows:-- "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 the Political Parties Act, 1962, the final order/judgment to be passed by the Election Commission is appealable to the learned Supreme Court. This being so, the grievance of the petition&, 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."
11. The judgment of the Supreme Court in the case of Kanwar Ijaz Ali supra does not advance the plea of the learned counsel for the petitioner. The impugned order is not without jurisdiction. There does not seem to be any illegality committed by the learned Election Tribunal in ordering the recount of the ballot papers/votes of some of the constituencies, as mentioned in the impugned order. The learned Supreme Court in the case of Ijaz Shafi supra also held that under section 64 of the Representation of the People Act, 1976 the Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions in that context. Reference may also be made to the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan (PLD 1986 SC 542).
12. As observed above, the order dated' 9-8-1994 is interlocutory one and with jurisdiction and the learned Election Tribunal has yet to pass final orders in the election petitions. The final order which includes any interlocutory order like the impugned order dated 9-8-1994, is subject to incidence of appeal under section 67 of the Representation of the People Act, 1976 before the Hon'ble Supreme Court. Therefore, on this ground alone, we think that the writ petitions are not maintainable against the impugned order dated 9-8-1994. As such, both the writ petitions are dismissed in limine. Since the main petition has been dismissed, the Criminal Miscellaneous applications also stand dismissed.