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Civil Appeal No. 1-P of 1974, decided on 1st April 1976.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 24th May 1973 in F. A. O. No. 14 of 1973).

-----Ss. 59, 61 & 64 read with Civil Procedure Code (V of 1908), S. 107, O. XXXIX, rr. 1 & 2 and O. XLI, r. 5-Election-Appeal-Stay of proceedings-High Court seized with appeal under S. 64, Ordinance. X111 of 1970-Empowered to suspend operation of order passed by Election Tribunal pending decision of appeal.-[Stay of proceedings--- Appeal (civil)].

Section 59 of the National and Provincial Assemblies (Elections Ordinance, 1970, provides that subject to provision of the Ordinance and, Rules, every election petition shall be tried as nearly as may be in accordance. with the procedure for the trial of suits under the Code of Civil Procedure. Section 64 confers on the Tribunal all the powers of a civil Court while trying a suit under the Code of Civil Procedure. Section 64 makes provi sion of an appeal from the decision of the Tribunal to the High Court on any of the grounds enumerated in section 100 of the Code of Civil Proce dure. Section 107 of the Civil Procedure Code inter alia provides that an appellate Court has the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts- of original jurisdiction in respect of suits instituted therein. Order XXXIX, rules 1 and 2 empower the trial Judge to grant an interim injunction or pass a stay order. Order XL1, rule 5, confers on the appellate Court the jurisdiction to suspend the operation of the order in appeal before it. These provisions of the Code and the National and Provincial Assemblies (Elections) Ordinance, 1970, when read together plainly yield to the result that the High Court when seized with an appeal under section 64 has the power to suspend under Order XL1, rule 5, the operation of the order passed by the Tribunal pending the decision of the appeal. The contrary course will involve the parties and the administration into unnecessary expen diture and result in waste of time if the appeal eventually succeeds and the order passed by the Tribunal is set aside.

Muhammad Yousaf Khan v. S. M. Ayub and others P L D 1972 Pesh. 151 ; Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. P L D 1975 S C 32 ; Commissioner, Khairpur Division, Khairpur and another v. Ali Sher Sarki P L D 1971 S C 242 and Zafar Iqbal v. The Province of Sind and others P L D 1973 Kar. 383 ref.

Qazi 141. Saleem, Qadir Bakhsh and Rana Maqbool Ahmad Qadri, Advocate -on-Record for Appellant.

Respondents : Ex parte.

Date of hearing : lot April 1976.

.-In 1970 General Elections, Molvlj Muhammad Yaqub, appellant, was elected to the N.-W. F. Province Assembly from constituency No. P. F. 30 (Bannu-1). Mashal Khan, respon dent No. 2, one of the contestants challenged before the Tribunal the election, of the appellant on variety of grounds which need not be stated here. It is enough to state that by order dated 26th April 1973, the Tribunal declared the election of the appellant as well as the election as a whole void.

Aggrieved thereby the appellant filed an appeal in the High Court under section 63 (3) of the National and Provincial Assemblies (Elections) Ordi nance, 1970, challenging the correctness of the Tribunal's finding. The appeal was admitted by a Division Bench on 24-5-1973 but the prayer to stay the operation of the Tribunal's order was rejected in the view that the High Court had no jurisdiction to pass such an order. Consequent upon it fresh election was ordered by the Election Commission on which the appellant moved a petition for special leave to appeal which was granted and on 30-1-1973 the operation of the order passed by the Tribunal was stayed.

The appeal is contested by Mashal Khan, respondent No. 2, reiterating the ground accepted by the High Court that during the pendency of an appeal under section 64 (3) of the National and Provincial Assemblies (Elections) Ordinance, 1970, it has no jurisdiction to suspend the operation of the impugned order.

In rejecting the prayer for a stay order, the late Mr. Justice Shah Zaman Babar reasoned that an appeal under section 64 (3) of the National and Provincial Assemblies (Elections) Ordinance. 1970, is the creation of a statute and since the Ordinance does not confer expressly on the High Court the jurisdiction to stay the operation of the order in appeal no such order can be passed. He relied on the judgment of his Court in Muhammad Yousaf Khan v. S. M. Ayub and others (i) in which a similar view was expressed.

Mr. Justice Qaisar Khan, differed with this view and observed that the High Court has the power to suspend the operation of the order of the Election Tribunal and relied on section 59 (1) of the National and Provincial Assemblies (Elections) Ordinance, 1970, which provides;

"59. Procedure before Tribunal.-( P L D 1972 Pesb. 151) Subject to the provisions of this Ordinance and the Rules every election petition shall be tried, as nearly as may, in accordance with the procedure for the trial of suits under the Code of Civil Procedure, 1908;

Provided that the Tribunal may ----

(a) make a memorandum of the substance of the evidence of each witness as his examination proceeds unless it considers that there is special reason for taking down the evidence of any witness in full ; and

(b) refuse to examine a witness if it considers that his evidence is not material or that he has been called on a frivolous ground for the purpose of delaying the proceedings;

(2) Subject to the provisions of this Ordinance, the Evidence Act, 1872 shall apply for the trial of an election petition.

(3) The Tribunal may, at any time, upon such terms and on payment of such fee as it may direct, allow a petition to be amended in such manner as may, in its opinion, be necessary for ensuring a fair and effective trial and for determining the real question at issue, so however that no new ground of challenge to the election is permitted to be raised.

(4) At any time during the trial of an election petition, the Tribunal may call upon the petitioner to deposit such further sum by way of security, in addition to the sum deposited under section 50, as it may think fit."

The learned Judge further relied on the rule that an appeal is a continua tion of the original its and the High Court is seized with the same power as the Tribunal enjoys during the trial of the Election Petition. He also considered anomalous that while the High Court has, under section 64, the power to set aside the order of the Tribunal it does not have the power to suspend the operation of that order. The learned Judges, however, felt constrained. to agree with the view adopted by his brother Judge as it found support from the decision of Division Bench of his Court in Muhammad Yousaf Khan Khattak v. S. M. Ayub and others.

A somewhat similar question arose before the Court in Sind Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. (PLD 1975SC32) Commissioner. Khairpur Division, Khairpur and another v. Ali Sher Sarki (PLD 1971 SC242) and Zafar Iqbal v. The Province of Sind and others (P L D 1973 Kar. 383).

In the first case the question was whether a Social Security Court in seizin of an appeal under section 59 of the West Pakistan Employees' Social Security Ordinance, 1965 has, in absence of an express provision for the purpose, jurisdiction to stay execution of order appealed against. It was argued that it was not intended by the Ordinance to bring the Social Security Court on par with an ordinary civil Court, so as to make it possible to invoke the provisions of Order XXXIX, rules 1 and 2, C. P. C. It was held that a right of appeal where it exists is a matter of substance and not of mere procedure and that even though Order XXX(X, rule 1, C. P. C. may not apply in terms the power to grant interim relief by suspending wholly or partially the operation of the order appealed against is reasonably incidental or ancillary to the main appellate jurisdiction.

In Commissioner, Khairpur Division v. Ali Sher Sarki which arose under -the West Pakistan Control of Goondas Ordinance of 1959, it was held, ". . . that the power to suspend the operation of an order passed by a Tribunal under section 13, 14 or 18 is ancillary to the power conferred upon the Commissioner by section 18 to discharge the person complained against on final adjudication."

In Zafar Iqbal v. The Province of Sind, it was held that where a Court has power to pass as order finally, it will generally have the power to do so by way of interim measure unless such a power is either expressly or by necessary implication excluded. Accordingly, the High Court released on bail during the pendency of the habeas corpus petition, the detenus held under preventive laws.

As seen, section 59 of the National and Provincial Assemblies (Elections) Ordinance, 1970, provides that subject to provisions of the Ordinance and rules, every election petition shall be tried as nearly as may be in accordance with the procedure for the trial of suits under the Cod; of Civil Procedure. Section 61 confers on the Tribunal all the powers of a civil Court while trying a suit under the Code of Civil Procedure. Section 64 makes provision o an appeal from the decision of the Tribunal to the High Court of any of the grounds enumerated in section 100 of the Code of Civil Procedure Section 107 of the Civil Procedure Code inter alia provides that an appellate Court has the same powers and shall performs as nearly as may be the same duties as are conferred and imposed by the Cod; on Courts of original jurisdiction in respect of suits instituted therein. Order XXXIX, rules 1 an 12 empower the trial Judge to grant an interim injunction or pass a stay order. Order XLI. rule 5, confers on the appellate Court the jurisdiction to, suspend the operation of the order in appeal before it. These provisions of ,the Code and the National and Provincial Assemblies (Elections) Ordinance, 1970, when read together plainly yield to the result that the High Court when seized with an appeal under section 64 hag the power to suspend under Order XLI, rule 5, the operation of the order passed by the Tribunal pending the decision of the appeal.

The view taken by the High Court that it has no jurisdiction to order stay of the order passed by the Tribunal cannot thus he sustained in law. The learned Judges undoubtedly had the power to stay the operation of the order passed by the Tribunal on merits it appeared to be a fit case in which fresh election should have been stayed. The contrary course will involve the parties and the administration into unnecessary expenditure and result in waste of time if the appeal eventually succeeds and the order passed by the Tribunal is set aside.

The appeal is accordingly allowed and it is directed that the order passed by the Tribunal on 24th April, 1973, shall remain suspended for a period of two months as from today. It is hoped that by then the High Court -will have decided the appeal on merits which is pending before it since 1973.

In the circumstances we make no order as to costs.

S. A. H. Appeal allowed.

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