' AJMAL MIAN, C.J.---This is an appeal filed against the order, dated 9-9-1998 of the Assistant Registrar of this Court informing the learned Advocate-on-Record for the appellant that his Civil Appeal No,Nil of 1998 filed by him against the order, dated 23-8-1998 of the Election Tribunal was not competent in view of the judgments of this Court in the case of Mian Ejaz Shafi v. Syed Ali Ashraf Shah and 12 others (PLD 1994 SC 867) and Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328).
2. The brief facts are that the appellant and the private respondents contested the election of the Provincial Assembly of Balochistan from Constituency PB-24 Bolan (Kacchi-I), wherein the appellant was declared as the returned candidate. Respondent No,1 moved Election Petition No,4 of 1997 against the appellant before the Election Tribunal, Balochistan (hereinafter referred to as the Tribunal). In the above Election Petition, respondent No,1 filed Civil Miscellaneous Application No,39 of 1997 dated 30-6-1997 for seeking re-counting of votes cast in favour of the appellant on the grounds contained therein. The above application was resisted by the appellant. However, the same was allowed by an order, dated 25-8-1997 and the Provincial Election Commissioner, Balochistan, Quetta was appointed for re-counting votes obtained by the returned candidate, checking of counter foils, seal and signature of Presiding Officer/Assistant Presiding Officer on ballot papers/counterfoils, and to check the numbers of National Identity Cards after summoning the record. Against the above order the appellant filed Constitution Petition No,349 of 1997 in the High Court of Balochistan, which was dismissed by an order, dated 10-9-1997 on the ground that under subsection (3) of section 67 of the Representation of the People Act, 1976 (Act LXXXV of 1976)
(hereinafter referred to as the Act) an appeal is competent against the above order. A distinction was made between the word 'order' used in subsection (1) of the above section 67 and the word 'decision' employed in subsection (3) thereof and it was concluded that the word 'decision' would include an interlocutory order of the nature at issue. The above order of the High Court is reported as Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani (PLD 1998 Quetta 1).
Against the above order of the learned Division Bench of the High Court Balochistan, C.P.S.L.A.
No,928 of 1997 was filed by the appellant, which was declined by an order, dated 2-6-1998. The above order is reported as Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others (1998 SCMR 1597).
3. It appears that after the above order of the Supreme Court, the appellant also filed an application on 22-6-1998 before the Tribunal for re-counting of respondent No,1 's votes. The above application was dismissed by the Tribunal by order, dated 23-8-1998, against which the above appeal under section 67(3) of the Act was filed in this Court in which the above objection was raised by the Assistant Registrar by his above order, dated 9-9-1998. The appellant has, therefore, filed the present appeal under Order V, Rule 3 of the Pakistan Supreme Court Rules, 1980 (hereinafter referred to as the Rules).
4. In support of the above appeal Mr. S.M. Latif Khan Khosa, learned counsel appearing for the appellant, has vehemently contended that the distinction brought out by the learned Division Bench of the High Court of Balochistan between the word 'order' used in subsection (1) of section 67 of the Act and the word decision' employed in subsection (3) thereof, has not been considered in any of the judgments/orders rendered by this Court including the two judgments/orders relied upon by the Assistant Registrar in his impugned order.
' His further submission was that since the order of the High Court of Balochistan, dated 10-9-1997 declining the appellant's Constitution Petition No,349 of 1997 on the ground that an appeal was competent to this Court under subsection (3) of section 67 of the Act, has been upheld by this Court by declining the above leave through the order, dated 2-6-1998, the appellant was entitled to file the above appeal even on the basis of the above order of this Court.
5. In order to appreciate the above contention it may be pertinent to refer to section 67 of the Act, which reads as under:-- "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 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.
(1-A) The trial of the election petition shall proceed day to day and the decision thereof shall be taken by the Tribunal within four months from the date of its receipt from the Commissioner: ' Provided that where the delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal may refer to the Commissioner that such candidate may be declared to have ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Commissioner may direct.
(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."
6. The perusal of the above-quoted section 67 of the Act indicates that the heading of the section is 'decision of the Tribunal' appearing before subsection (1) of the above-quoted section.
Subsection (1) thereof provides that the Tribunal may upon the conclusion of the trial of an election petition, make an order of the nature referred to in clauses (a), (b), (c) and (d) of the above subsection (1) quoted hereinabove.
' It may further be noticed that newly-added subsection (1-A) lays down that the trial of the election petition shall proceed day to day and the decision thereof shall be taken by the Tribunal within four months from the date of its receipt from the Commissioner. It may also be noticed that the proviso to the above newly-added subsection (1-A) reinforces the intention of the law-makers that the election petition be disposed of within the above statutory period of four months by providing that where the delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal may refer to the Commissioner that such candidate may be declared to have ceased to perform the function of his office either till the conclusion of the proceedings, or for such period as the Commissioner may direct.
' It may further be pointed out that subsection (2) of above section 67 provides that save as provided in subsection (3), the decision of the Tribunal on an election petition shall be final.
' It may also be noticed that subsection (3) of above section 67 lays down that any persons 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. It may be pointed out that Explanation to above subsection (3) provides that in the above 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 of the Act.
7. We may now refer to the case law:--
(i) Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1987 SCMR 1107).
' In the above case the question at issue was directly considered and it was held that reading together subsections (1), (2) and (3) of section 67 of the Act, it is evident that the word 'decision' used in subsection (3) of section 67 of the Act relates to final determination referred to in subsection (1) of above section 67. The relevant portion of the judgment reads as follows:-- "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 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."
(ii) Mian Ejaz Shafi v. Sved Ali Ashraf Shah and 12 others (PLD 1994 SC 867).
In this case this Court upheld the objection of non-maintainability of the appeal under section 67 of the Act, which was directed against the order of the Election Tribunal for re-counting of the votes. The relevant portion of the abovejudgment reads as follows:-- "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 mentioned above. The petition is still pending before the Tribunal and final order is yet to be passed against which appeal could competently be filed in this Court. In such circumstances we would not like to make any comment on the contentions raised on behalf of the appellant, which could be raised by him before the Tribunal at the stage of the arguments. At present it would suffice if we mention that under section 64 of the said Act Election Tribunal can order recount of votes in appropriate cases and on satisfaction of requisite conditions and in that context reference can be made to the case of Haji Muhammad Ashgar v. Malik Shah Muhammad Awan PLD 1986 SC
542. In any case final order is yet to come from the Tribunal against which appeal is competent. For the facts and reasons mentioned above this appeal is dismissed as non-maintainable."
(iii) Muhammad Iftikhar Mohmand v. Javed Muhammad and 3 others (1998 SCMR 328).
' In the above case this Court declined leave to appeal against the order of the Election Tribunal, Peshawar whereby it overruled the objection as to the maintainability of an election petition. In para. 3 of the above leave refusing order the following observation was made:- "After hearing the learned counsel for the parties, we are of the view that as the main election petition is still pending before the learned Tribunal and an appeal is provided against the final decision of the Tribunal before this Court, the petitioner in the event of the final decision going against him, will be entitled to raise all the pleas available to him, in the appeal before this Court including the preliminary objection as to the maintainability of the petition which has been overruled by the learned Tribunal by the impugned judgment. With these observations, the petition stands disposed of accordingly."
(iv) Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others (1998 SCMR 1597) (supra).
' The above report contains the leave refusal order in C.P.S.L.A. No,928 of 1997 filed by the above appellant against the dismissal of his Constitutional Petition No,349 of 1997 by a Division Bench of the High Court of Balochistan, already referred to hereinabove. Mr. Khosa has particularly relied upon para. 8 of the above leave refusing order, which reads as under:- "We have gone through various decisions of the Election Tribunal cited by Sardar Muhammad Latif Khan Khosa, on the question of recounting of votes referred to in paragraph 7 above. Suffice it to say that the Election Tribunal can order re-count of votes in appropriate cases and on satisfaction of requisite conditions. Guidance may be sought from the case of Haji Muhammad Asghar v. Malik Shah Muhammad Awan (supra). The case of Mian Ejaz Shafi (supra), strongly relied upon by the learned counsel for the petitioner, does not advance his case, inasmuch as, paragraph 6 of the aforesaid judgment reveals that the appellant therein challenged the order of the Election Tribunal regarding recounting of votes before this Court through C.A. No,425 of 1994, which was dismissed on 7-6-1994 on the ground that the appeal against the interim order passed by the Election Tribunal, was not competent. In the instant case also, the final order is yet to be passed by the Tribunal seized of the Election Petition filed by respondent No,1 against the petitioner. Admittedly, appeal against the final order of the Tribunal lies before this Court. The petitioner shall also be at liberty to file objections to the report of the Commission on re-counting of votes. Clearly, if such objections are raised the same shall be considered by the Tribunal justly, fairly and in accordance with law, after providing an opportunity of being heard to the parties and allowing them to lead evidence in support of their respective contentions, if so desired, before final disposal of the Election Petition."
8. From the above-cited judgments it is evident that in the case of Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1987 SCMR 1107) (supra) this Court has directly dealt with the contention which has now been urged before us by Mr. S.M. Latif Khan Khosa, learned counsel for the appellant and which had found favour with the learned Division Bench of the High Court of Balochistan in the case of Muhammad Asim Kurd alias Gailoo v. Nawabzada Mir Lashkari Khan Raisani and 11 others (PLD 1998 Quetta 1) (supra), namely, that there is a distinction between the meaning of the word 'order' used in subsection (1) of section 67 of the Act and the word "decision' employed in subsection (3) thereof, inasmuch as the latter includes even an interlocutory order. The above view of the learned Division Bench of the High Court of Balochistan runs counter to the view of this Court in the above case of Mian Zahid Sarfraz.
Even otherwise, the perusal of the above-quoted section 67 of the Act indicates that the word 'decision' used in subsections (2) and (3) of section 67 of the Act relates to the decision of the nature mentioned in subsection (1) thereof. The word 'order' used in subsection (1) of above section 67 is to be construed with reference to the context in which it has been used, namely, an order dismissing the petition, declaring the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been duly elected, declaring the election as a whole to be void i.e, as mentioned in above-quoted sub-clauses (a), (b), (c) and (d) of subsection
(1) of section 67 of the Act. The above conclusion is reinforced if we look at the heading of the above section 67 which reads as 'decision of the Tribunal'. This interpretation is also in consonance with the above newly-added subsection (1-A) quoted hereinabove, which provides that the trial of the Election Petition shall proceed day to day and the decision thereof shall be taken by the Tribunal within four months from the date of its receipt from the Commissioner. Its proviso as pointed out hereinabove, lays down that where the delay in the proceedings is occasioned by any act or omission of a returned candidate or any other person acting on his behalf, the Tribunal may refer to the Commissioner that such candidate may be declared to have been ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Commissioner may direct. If we were to hold that an appeal under subsection (3) of section 67 of the Act would be competent against an interlocutory order of the Election Tribunal, that will defeat the object of the law-makers for enacting subsection (1-A) of section 67 of the Act.
' It may further be observed that though the distinction between the words 'order' and 'decision' used in subsections (1) and (3) of section 67 of the Act has not been highlighted in the other judgments/orders of this Court except in the case of Mian Zahid Sarfraz (supra), but the consistent view of this tout has been that no appeal under section 67 of the Act is competent against an interlocutory order of the Election Tribunal.
9. We are unable to agree with' Mr. Khosa, learned counsel for the appellant, that this Court while declining through order, dated 2-6-1998, the appellant's petition for leave to appeal against the judgment, dated 10-9-1997 of the learned Division Bench of the High Court of Balochistan in Constitution Petition No,349 of 1997, accepted the view that an appeal under subsection (3) of section 67 of the Act will be competent against an interlocutory order of the Election Tribunal. On the contrary, this Court while declining leave to appeal relied upon the case of Mian Ejaz Shafi (supra) and pointed out that the above judgment does not support the appellant's case.
10. The upshot of the above discussion is that the order, dated 9-9-1998 of the Assistant Registrar of this Court is upheld. Consequently, the above appeal is dismissed.