' MUNAWAR AHMED MIRZA, J.---Civil Petitions Nos.135-Q and 136-Q of 1997 involve consideration of identical points of law, therefore, same are being disposed of through this common judgment.
2. Petitioner, Maulvi Abdul Ghani (CP 135-Q of 1997) was contesting candidate from N.A. 198 Pishin Qillah Abdullah in general elections held during February, 1997. Petitioner was decreed successful by securing 25133 votes; whereas respondent No,2 Mehmood Khan Achakzai, who was the next running candidate, lost the election by getting 22110 votes. Result was declared by the Election Commission through Notification No,F.2(40)/97-Cord(ii) dated 13-2-1997.
3. Respondent Mehmood Khan Achakzai challenged validity of petitioner's election by filing election petition under section 52 of "The Representation of the People Act, 1976" alleging various corrupt practices and massive bogus voting on different polling stations, affecting result of the election.
Petitioner filed written statement on 9-5-1997 wherein assertions made by the respondent were vehemently repudiated. It was pleaded that election petition was totally unfounded and merited dismissal.
4. It may be seen that Election Tribunal by means of Order dated 6th June, 1997 granted application No,17/97 allowing petitioner to place on record affidavit of 34 witnesses whereas through same order deciding the other application observed that original affidavits filed by respondent Mehmood Khan Achakzai alongwith election petition did not require verification as such his request seeking amendment of plaint/memo. Of election petition was rejected, besides, objections in that behalf raised by way of additional pleas in the written statements were overruled.
5. Real controversy culminating in present proceedings commenced when respondent Mehmood Khan Achakzai on 26th May, 1997 filed an application under Order XXVI, Rule 16 praying for appointment of Local Commissioner to examine the record and carry out recounting of the votes.
This application was emphatically resisted by the petitioner (Maulvi Abdul Ghani) and detailed rejoinder was filed on 2-7-1997. The Tribunal, however, considering rival contentions advanced by learned counsel for the parties allowed the request vide order dated 31-7-1997 and appointed Provincial Election Commissioner as ' Authorised Officer' to inspect packets of counterfoils, certificates and count ballet papers after summoning record from polling stations specified in the order in presence of representatives from (i) National Identity Card Office, Quetta, (ii) Provincial Election Commission, (iii) Election Commission of Pakistan and (iv) Finger Print Expert of Police Department. Said order has now been challenged through Civil Petition No,135-Q of 1997.
6. The second matter (CPLA No, 136-Q of 1997) pertains to election dispute between petitioner Haji Behram Khan Achakzai and respondent No Hamid Khan Achakzai, who were candidates for contesting election from Provincial Assembly Balochistan PB-9 Qilla Abdullah-II, held during February.
1997. Petitioner Haji Behram Khan Achakzai was declared duly returned by securing 7547 votes, whereas respondent No,2 Hamid Khan Achakzai received 6703 votes. Notification declaring petitioner as successfully electesd PBN-9/II was issued on 13-2-1997.
7. Being aggrieved respondent No,2 submitted a petition under section 103-AA of the Representation of the People Act, 1976, before Election Commission of Pakistan wherein vide order dated 28-2-1997 directions were issued for recounting all the ballet papers with regard to specified polling stations, in the presence of parties, representatives of (i) Election Commission and (ii)
National Identity Card Office. The directions were carried out and recounting commenced on 3-3- 1997. It appears that some report was also prepared. Certain proceedings challenging above decision were drawn which became infructuous because, respondent Hamid Khan Achakzai on 27th March, 1997 filed Election Petition under section 52 of the Representation of the People Act, 1976 challenging validity of petitioner's election from Constituency PB-9, Qillah Abdullah-II, Petitioner (Haji Behram Khan Achakzai) filed written statement on 30-3-1997 oppsong averments in the petition. Initially as mentioned in Civil Petition No,135-Q of 1997 request for amendment of pleadings was declined and simultaneously additional pleas were raised as the written statements were overruled. However, during pendency of main petition on 26-5-1997 respondent Hamid Khan Achakzai submitted an application requesting for appointment of Local Commissioner to examine the record and recounting all ballot-papers. This request was opposed but eventually vide order darted 31-6-1997 request was allowed. Civil Petition No,136-Q of 1997 is directed against above order.
8. Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court, strenuously urged that Election Tribunal had limited scope and regulated by procedure laid down in Notification No,F.1(7)/85.
Learned counsel contended that scope and authority exercisable under section 46 of the Representation of the People Act, 1976, regarding production of documents is extremely restricted, therefore, Tribunal has traversed beyond its jurisdiction in appointing committee of persons for recounting the votes or considering its validity. It was argued that necessary precautions are required for ensuring that no vote can be identified or disclosed till same is held to he invalid by the Tribunal. Answering objection concerning maintainability of the petition for leave to appeal, he explained that appeal was directly competent before this Court within the purview of section 67(3) of the Representation of the People Act, 1976, therefore, impugned order could be legitimately challenged.
9. Whereas Mr. Iftikhtar Hussain Gilani, Advocate Supreme Court, for respondent, vehemently argued that petition for leave to appeal is not competent, because impugned order has been passed by the Tribunal which could not be challenged under Article 185 of the Constitution.
However, as regards maintainability of appeal against interim order he relied upon the principles of law enunciated in Muhammad Azam Farooqui v. Maulana Muhammad Shafi Okarvi (1974 SCMR 971) wherein while dealing with scope of section 64(1)(3) of National and Provincial Assembles (Election) Ordinance, 1970 (XIII of 1970) which is in pari materia with section 67(1)(3) of the Representation of the People Act, 1976, the appeal was held to be not maintainable. To further supplement his submissions he referred to the observations of reported judgments in (i) PLD 1994 SC 867 (Ejaz Shafi v. Ali Ashraf Shah), (ii) 1997 SCM R 941 (Sheila B. Charless v. Election Tribunal and
(iii) 1998 SCM R 328 (Muhammad Iftikhar Mohmand v. Javed Muhammad). Besides, reliance was placed on the observations in case CPLA No,928 (Muhammad Asim Kurd alis Gailoo v. Nawabzada Mir Lashkari Khan Raisani) decided by this Court on 2-6-1998 (at Karachi) in case confirming the stand that interim order was not appealable. Learned counsel greatly stressed that Election Tribunal has plenary powers to direct recounting and seek performance of allied duties through Local Commissioner as held in case of Mian Ejaz Shafi v. Syed Ali Ashraf Shah (1996 SCM R 605) an aforequoted unreported judgment. Thus challenge to impugned order was unjustified.
10. After hearing arguments, both the petitions were disposed of try following short order:-- "For the reasons to be recorded later on, we dispose of the above petitions in the following terms:--
(i) That Election Tribunal's order is maintained with the modification that the Assistant Director, National Identity Cards Department and the representative of Finger Print Expert of the Police Department will not participate in the process of examining and re-counting of the votes by the Authorised Officer and their names are deleted from the impugned order. Furthermore, the question, as to whether particular votes or counterfoils are to be examined by the handwriting expert, will be determined by the Election Tribunal at the appropriate stage.
(ii) The interim orders dated 15-6-1997 are hereby recalled."
11. The first and most important point relates to the competency of petitions for leave to appeal.
Undisputedly impugned order has been passed by Election Tribunal exercising powers within the purview of sections 46, 64 and 67 of the 'Representation of the People Act, 1976'. Article 185 of the Constitution dealing with appellate jurisdiction of the Supreme Court envisages challenge against judgment and decree passed by the High Court. For convenience said Article is reproduced below:- "185.---(1) Subject to this Article, the Supreme Court shall have jurisdiction to hear and determine appeals from judgments, decrees, final orders or sentences of a High Court.
(2) An appeal shall lie to the Supreme Court from any judgment, decree, final order or sentence of a High Court---
(a) if the High Court has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to transportation for life or imprisonment for life; or, on revision, has enhanced a sentence to a sentence as aforesaid; or
(b) if the High Court has withdrawn for trial before itself any case from any Court subordinate to it and has in such trial convicted the .Accused person and sentenced him as aforesaid; or
(c) if the High Court has imposed any punishment on any persons for contempt of the High Court; or
(d) if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of [Majils-e-Shoora (Parliament)] and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(e) if the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below; or
(f) if the High Court certifies that the case involves a substantial question of law as to the interpretation of the Constitution.
(3) An Appeal to the Supreme Court from a judgment, decree, order or sentence of a High Court in a case to which clause (2) does not apply shall lie only if the Supreme Court grants leave to appeal."
12. The order passed by the Election Tribunal is not covered by any of the aforementioned provisions of Article 185 of the Constitution. Therefore, ex facie petition for leave to appeal within the purview of Article 185 of the Constitution assailing order of Election Tribunal is not maintainable. An abortive attempt was, however, made by Mr. Muhammad Aslam Chishti, learned counsel for petitioners that impugned order having been signed as Judge of the High Court, should be deemed to cover necessary requirements. The contention obviously has no substance. It is, however, settled principle of law that mere wrong description of the forum or any such characteristic omission does not change capacity of authority passing such order. Therefore, by no stretch, impugned order can be termed to have been passed by the High Court.
13. Now looking to the factual position it is quite apparent that section 67 of the Representation of the People Act, 1976, enumerates the nature of orders and the forum regarding institution of appeal against order of the Election Tribunal. For convenience same is reproduced below:-- "67. Decision of the Tribunal.--- (1) The Tribunal may, upon the conclusion of the trial of an election petition, make an order--
(a) dismissing the petition;
(b) declaring the election of 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.
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 section 103-AA".
14. Thus, decisions of Election Tribunal being final in nature can be challenged before this Court under the above provision of law. Confronted with this situation learned counsel sought permission for treating these petitions as appeals under section 67(3) 'Representation of the People Act, 1976'.
There is no doubt that in case Mian Ejaz Shafi v. Syed Ali Ashraf Shah (PLD 1994 SC 867), this Court had declined to interfere with the order passed by the Tribunal whereby recounting of votes was ordered keeping in view earlier decisions such as (i) Mahmood Azam Farooqui v. Maulana Muhammad Shafi Okarvi (1974 SCM R 471), (ii) Bhagwandas v. Returning Officer (1990 SCM R 1228),
(iii) Shelia B. Charless v. Election Tribunal (1997 SCM R 941 and (iv) Muhammad Iftikhar Mohmand v.
Javed Muhammad (1998 SCM R 328). The trend in all the aforequoted judgments suggests that appeal against interim order was discouraged.
15. However, visualizing the circumstances where any provisional order having inherent jurisdictional defect Tribunal's decision which may encroach upon or contravene rights of the contesting parties while adjudicating upon merits, the scope has been considerably enlarged by interpreting such ' Decisions', in case Zahid Sarfaraz v. Nadir Pervaiz Khan (1987 SCM R 1107).
' It would be profitable to reproduce hereunder relevant portion of said judgment:-- "The crucial word used in section 67 requiring consideration is 'decision' As pointed out in Saunders 'decision implies the exercise of 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 Corups Juris Secundum - Vol.26 starting at pp. 41-42 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, setting, 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."
' 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 enumeratd 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 passing of such 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 under Article 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.
' 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 order as 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 appellant 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 principles has been expessed in the following words in Vol.4 of Corpus Juris Secundum at pp.89, 238 and 244:-- "As a general rule, a writ of error lies only from a final judgment of 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 defence Its the general rule therefore, that an appeal, writ or error, exceptions, or other proceeding for review will not lie from or to an interlocutory qr intermediate decision unless it is expressly permitted by statute, rule or Constitutional provision. The policy behind, or the ground for, the statutes, rules of Court, and decisions embodying this principle is that litigation should not proceed piecemeal, 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."
' As to what is the distinction between the final judgment and interlocutory order, the following observations appear in the same Volume at pp.252-254 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 further determination or consideration, is final and appealable, and it is not final or appealable unless it does these things.
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 labour is at an end.
' 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.
' The policy of election law as well as Rent Controller 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 difficultly 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."
16. It is pertinent to notice that superior Courts have leaned towards liberal construction of Election Laws so that material prejudice likely to be caused on account of glaring jurisdictional defects or excess of authority could be averted. It needs mention that Ghulam Mustafa Jatoi had filed nomination for contesting election from NA-158, Naushero Feroze scheduled for 6th October, 1993.
His candidature was rejected by the concerned Returning Officer. Constitutional petition filed before High Court of Sindh was dismissed following principle of law enunciated by majority view in Javed Hashmi's case (PLD 1989 SC 396). Evidentially this Court exhaustively dilated upon various aspects and reversed the finding of Returning Officer and High Court of Sindh in case reported as Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, NA-158, Naushero Feroze and others (1994 SCM R 1299). Relevant observations appearing in paragraphs 24 and 26 are reproduced below: : "24. The ratio of the last para. Of the above-quoted passage can be pressed into service in the present case as the remedy of an election petition on the ground of rejection of nomination papers is not available as a ground for assailing the election of a returned candidate contained in subsection (1) of section 68 quoted hereinabove. Whereas this ground is available in clause (c) of subsection (1) of section 100 of the Indian Representation of the People Act referred to hereinabove.
Secondly, the above ex parte order was passed by the Returning Officer on 14-9-1993 whereas the last date for deciding the appeal by the Tribunal notified was 12-9-1993. In the above reported case, the High Court in fact through the impugned judgment had taken over the control of bye- elections instead of allowing the Election Commission to discharge its Constitutional duty to hold elections. In view of the above peculiar features, the above reported case is distinguishable from the present case. In the above report, the minority view was rendered by one of us, Nasim Hasan Shah, J. (as he then was), in which it was held that the order of the Returning Officer altering the approved list and substituting it with a new list of the staff was without jurisdiction and the same was fit for interference under Article 199 of the Constitution. We are inclined to hold that the appellant's above Constitution petition was competent and the High Court by declining to exercise its Constitutional jurisdiction for the reason quoted hereinabove has failed to exercise jurisdiction vested in it.
' It may be pointed out that even earlier than the judgment of Farzand Ali's case (supra), in the case of Mian Jamal Shah v. The Member, Election Commission, Government of Pakistan, Lahore (PLD 1966 SC 1), S.A. Rahman, J. In his separate note observed that if in a particular case it is found either that an authority functioning under section 53 of the National and Provincial Assemblies Act, 1954, or the Election Tribunal appointed under that Act has failed to exercise jurisdiction vested in it or clearly exceeded the jurisdiction or if the order in question is found to be tainted with mala fide, the aggrieved party may be entitled to invoke the provision of Article 98 of the late Constitution of 1962.
Whereas Fazle Akbar, B.Z. Kaikaus and Muhammad Yaqub Ali, JJ. Had observed in their separate notes that mala fide action of the Election Authorities can be impugned through a Constitution petition.
' The upshot of the above discussion is that generally in an election process the High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution.
However, this subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court. The majority view in the case of Election Commission of Pakistan v. Javaid Hashmi (supra) is not applicable. We may clarify that we do not intend to overrule the above majority view in the above case. The above case in fact is distinguishable from the instant case for the reasons already discussed hereinabove."
17 Keeping in view above discussion, it may be seen that the Election Tribunal while deciding election petition has got plenary jurisdiction under section 46 of The Representation of the People Act, 1976'. To direct opening of packets or counterfoils or certificates or carry out inspection of any ballot paper. However, such order must be subject to conditions relating to person, time place and mode of inspection etc., as the Tribunal making such order may find expedient.
' Thus, on thorough perusal of relevant provisions and precedent case-law referred above, obviously the Tribunal could lawfully direct recounting in the manner specified in section 46, supra, and also delegate powers to Authorised Officer/Local Commissioner.
18. Question, however, arises whether a delegated authority/authorised officer/local commissioner enjoys jurisdiction to make positive observation regarding invalidation of vote or is merely obligated to submit report for the consideration of Tribunal. This aspect has been adequately dilated upon in the impugned order and duly answered in case of Mian Ejaz Shafi v. Syed Ashraf Shah (1996 SCM R 605). It clearly opines that ultimate authority for declaring actual validity or otherwise of votes falls within exclusive domain and satisfaction of the Tribunal.
19. On the background given above, it is clearly established that the Tribunal at any stage had the jurisdiction to exercise its powers under section 46 of the Representation of the People Act, 1976.
However, it is not understandable that for what purpose representatives of Finger Print Expert of Police Department and Assistant Director, National Identity Card Department were required to be present while carrying out recounting. This portion of the order is clearly beyond the scope of aforequoted provisions and powers vested in the Election Tribunal therefore, directly contravenes requirement of law. Their presence with Authorised Officer or observation with regard to nature or type of balloted vote, would certainly perpetuate illegality which is not curable. Therefore, for advancing interest of public policy, spirit of law and fostering complete justice, besides avoiding serious prejudice or ultimate frustration of proceedings eventually to be finalized by Election Tribunal, it is expedient to rectify said jurisdictional error and legal infirmity. Accordingly, we are inclinedto observe that presence of aforementioned two representatives is unnecessary. Their names be deleted from the list of persons to be present alongwith Authorised Officer' for the purposes of recounting of votes etc. On the basis of impugned order. Thus, modifying the impugned order in the terms of short order referred to above, petitions are converted into appeals and disposed of accordingly. However, parties are left to bear their own costs.