1. ' Heard the learned counsel for the petitioner M/s. Zafar and Shakeel Ahmed. Pre-admission notice was given to the respondent No,1, the learned Deputy Attorney-General and the learned Additional Advocate-General, as during the preliminary hearing of the petition on 8-9-1997 question of the maintainability and competency of the petition against interlocutory order passed by the Election Tribunal Balochaistan, arose, to which the learned counsel for the petitioner Mr.Shakeel Ahmed submitted that the Hon'ble Supreme Court has already granted leave on the point against the order of the Lahore High Court reported in PLD 1993 Lahore 791 wherein it was held by the Hon'ble Lahore High Court that Constitutional petition against an interlocutory order passed by Election Tribunal is not competent.
2. ' Mr. M. Zafar, the learned Advocate for the petitioner contended inter alia that petitioner and the private respondents contested the general elections from constituency PB-24 Bolan Kachhi-I, on 3- 2-1997 and finally upon consolidation of the polling results the petitioner was declared as a returned candidate.
3. ' The respondent No,1 who was the rival candidate in the elections from the said constituency, filed Election Petition before the Election Tribunal, Balochistan and on the basis of the pleadings of the parties the learned Election Tribunal framed issues. After completion of the evidence by the respondents No,1 besides his own statement, the petitioner commenced with his evidence before the Tribunal but in the meanwhile on 30-6-1997 the respondent No,1 submitted Civil Miscellaneous Application No,39 of 1997 requesting for recounting of the valid votes of the entire constituency, which application on substantial legal and factual grounds was contested by the petitioner but the learned Election Tribunal for no legal and factual justification and in the mis exercise of authority vested in it vide impugned order appointed Commission for recounting of the ballots of the entire constituency cast in favour of the petitioner; contrary to the relevant provisions of the Representation of the People Act, 1976.
4. ' The learned counsel submitted that the main election petition, as well as the Miscellaneous Application indicate that grievance of the respondent No,1 was limited only to the recounting of the postal ballots, which already have been examined and that it was never the case of the said respondent that any rigging or wrong consolidation of the ballot papers were caused or occurred.
5. ' Further the learned counsel submitted that at the relevant time neither the respondent No,1 nor any of his polling agent made any such complainant to any Presiding Officer of the polling stations nor to the Returning Officer at the time of the consolidation of the results, inasmuch as; the respondent No,1 in his statement before the learned Election Tribunal did not make any such allegation which could justify in passing the impugned order.
6. ' The learned counsel vehemently contended that the learned Election Tribunal exercised the powers not vested in it under the relevant provisions of the Representation of the People Act, 1976 in the given facts and circumstances of the case, to direct for the recounting of the ballots of the entire constituency cast in favour of the petitioner. The learned counsel accordingly strenuously contended that the exercise of such authority by the Election Tribunal is devoid of any legal sanction, void and without jurisdiction. Attending to the main question about the maintainability and competence of the instant petition against the interlocutory order passed by the learned Election Tribunal which emerged during the preliminary hearing of the petition on 8-9-1997, for which the pre-admission notice was given to the learned Deputy Attorney-General, Advocate- General and the respondents; the learned counsel for the petitioner submitted that the interlocutory order passed by the Election Tribunal is not appealable under section 67 of the Representation of the People Act, 1976 and there being no remedy available to the petitioner against the impugned order, has appropriately invoked the Constitutional jurisdiction of this Court: which according to the learned counsel is the only available and efficacious remedy to the petitioner. The learned counsel vehemently contended that only final order passed by Election Tribunal is appealable to the Hon'ble Supreme Court under section 67 of the Representation of the People Act, 1976.
7. ' The learned counsel for the respondent No,1 contended that against the impugned order the Constitution jurisdiction of this court cannot be invoked under Article 199 of the Constitution which is exercisable subject to Article 225 of the Constitution and not independently. According to the learned counsel the impugned order is appealable to Supreme Court despite being, an interlocutory order, thus the instant petition is not competent. The learned counsel strenuously contended that the impugned order is not devoid of legal action in the given facts and circumstances of the case; according to him the contents of paras. Nos.4, 10 and the prayer clause of the main election petition not withstanding to any other available ground, provided factual and legal jurisdiction for the order passed by the Election Tribunal within the lawful exercise of its authority and is not amenable to the jurisdiction of this Court under Article 199 of the Constitution.
8. ' The learned Deputy Attorney-General supported the contentions of the petitioner's counsel except that the instant petition is competent and submitted that under subsection (3) of section 67 of Representation of the People Act, 1976 the word "decision" includes any order or decision whether final or interlocutory, therefore, appealable to Supreme Court, according to the learned Deputy Attorney-General the word "order" used in subsection (1) of section 67 of the Act includes only that order which may be passed by Tribunal, upon the conclusion of trial, whereas, the word "decisions" used in subsection (3) embraces any decision taken by Election Tribunal. To supplement his arguments he placed reliance on a reported judgment i,e, 1996 CLC 94 (Karachi) wherein the Hon'ble High Court interpreting the word 'decision' used in section 14 of the West Pakistan Muslim Family Courts Act held that interlocutory order in respect of dismissal of or acceptance of application concerning any issue amounts to a final decision containing characteristics of finality notwithstanding the pendency or final disposal of the case on the basis of such order would be appealable.
9. ' The learned Additional Advocate-General contended that the petition is competent before this Court for the reason that the interlocutory order passed by the Election. Tribunal is not appealable, as only a final order is appealable which may fall under either of the clauses to subsection (1) of section 67 of the Act and not all the orders which may be interlocutory in character.
10. ' We have carefully considered the respective contentions put forth before us on the subject of the maintainability of the Petition against the impugned interlocutory order in the light of Articles 199 and 225 of the Constitution read with section 67 of the Act and the case law respectively, cited by the learned counsel for the parties.
11. ' In the cited judgments PLD 1989 SC 760, referred to by the learned counsel for the petitioners, the Hon'ble Supreme Court held that appeal lie only if trial had been concluded by Election Tribunal and such, was held in the context when the election petition was prematurely disposed of thereby rendering the trial as concluded. The proposition involved in the instant matter with regard to the remedy of appeal against an interlocutory was not the subject of verdict in the quoted case Law.
12. Similarly the other cited case law i,e, NLR 1988 Civil 599 (Lahore), 1987 SCMR 324, PLD 1982 Lahore 92, 1994 CLC 14 (Lahore), 1995 CLC 923 (Election Tribunal Punjab), and 1994 SCMR 1299 lends no support to the proposition in respect of the availability of remedy of appeal against an interlocutory order because in our considered opinion right of appeal against such an order to Supreme Court; if available would be sufficient efficacious and speedy remedy to an aggrieved person under the Special enactment i,e, Representation of People Act, 1976.
13. ' The Hon'ble Supreme Court in its judgment reported in PLD 1989 SC 396 (Election Commission of Pakistan v. Javed Hashmi) relevant part of the judgment appearing at page 399 about the Constitutional exercise of jurisdiction by High Court in election matters is reproduced below for convenience and reference:--
(g) Constitution of Pakistan (1973)--Arts.225 & 199--Exercise of Power Art.199 cannot be placed on any higher footing than that emanating from Art.225. "The exercise of power under Article 199 cannot be placed on any higher footing than that emanating from Article 225 of the Constitution; and while the power under Article 199 exercisable by the High Court is "subject to the Constitution" there is not such limitation in Article 225. This Article by its language creates an independent jurisdiction for the decision of election disputes under the law and its contents, therefore, should be given the fullest meaning irrespective of anything contained in any other Article. More particularly so as it is an essential part of parliamentary jurisdiction which under the law entrusts election disputes for decision to the Election Tribunal and in appeal to the Supreme Court whose decision is final both on questions of law and fact."
14. To determine the point involved in the instant matter we are of the considered view that the word "decision" used in subsection (3) of section 67 of the Representation of the People Act, 1976 would not necessarily refer to the final adjudication of a dispute before Election Tribunal; but would also include interlocutory order. The plain reading of subsection (1) of section 67 of the Act unequivocally provides that Election Tribunal may pass an order upon the conclusion of trial of an election petition by either:--
(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 candidate to have been duly elected; or
(d) declaring the election as a whole to be void.
15. The word (order) used in subsection (1) section 67 of the Act as confined and refers to only that order which may be passed by an Election Tribunal upon conclusion of the trial of the election petition under either of the clauses to the subsection (1), therefore, any order passed by such Tribunal in the proceedings prior to the conclusion of the trial, would not be an 'order' within the meaning of subsection (1) rather would be termed as 'decision' which would also include the final order as well. By virtue of subsection (2) of section 67 finality has been attached to the decision of a tribunal on an election petition meaning thereby that finality has been attached to an ultimate decision taken upon the conclusion of the trial, which, thus, would be an order of a Tribunal within the meaning of subsection (1) section 67 of the Act. Whereas, right of appeal to an aggrieved person has been provided against 'a decision' of the tribunal under subsection (3) of section 67, which is not limited to a final decision of the election petition upon the conclusion of trial but includes any other decision of the Tribunal which may be passed during the course of such proceeding pending the final order within the purview of subsection (1).
16. In our view the impugned order contains the characteristics of the finality of the decision of the Tribunal on the point of recounting of the cast ballots in favour of the petitioner, which may entail an ultimate effect on the rights of a party to the proceedings, therefore, such a decision of the Tribunal is appealable under subsection (3) of section 67 of the Act and the exercise of Constitutional jurisdiction by High Court has been comprehensively elaborated in the context by the Hon'ble Supreme Court in the abovementioned reported judgment i,e, PLD 1989 SC 396.
17. ' In view of the above discussed legal position, right of appeal against the impugned order is available to the petitioner under subsection (3) of section 67 of the Representation of the People Act, 1976 which disentitled the petitioner to invoke to Constitutional jurisdiction of this Court under Article 199 of the Constitution exercisable subject to the Constitution. Thus the petition being incompetent and not maintainable is dismissed in limine.