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F. A. O. No. 14 of 1973, decided on 24th May 1973.

Per Shah Zaman Babar, J. [Qaisar Khan, J. reluctantly concurring]‑‑

‑‑‑. S5. 64(3) & 61 read with Civil Procedure Code (V of 1908) S.---151‑Appeal against decisions of Election Tribunal‑Stay of proceedings‑Jurisdiction‑Order passed by Election Commissioner‑‑ Cannot be stayed by High Court‑Nor can High Court stay proceed ings in election cases under S. 151, C. P. C.‑[Jurisdiction).

Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others P L D 1972 Pesh. 151 fol.

Q. M. Salim assisted by Khan Bahadur Khan for Appellant.

In the General Elections of 1910 for the N.‑w. F. P. Provincial Assembly for Constituency No. P. P. 30‑Bannu‑1, the elections were contested by Mashal Khan, Maulvi Muhammad Yaqub and 17 others. The polling took place on 17‑12‑1.970. As a result of final count, Maulvi Muhammad Yaqoob was declared elected. Mashal Khan called in question the election by an Election petition before the Election Tribunal; N: W. F. P., Peshawar. The Election Tribunal by his judgment dated 26‑4‑1973 accepted the petition and held election of Maulvi Muhammad Yaqoob respondent void in the first instance and also declared the election void as a whole in the alternative. The appeal against this judgment under section 64 (3) of the National and Provincial Assemblies (Elections) Ordinance, 1970 has been admitted to full hearing today.

The appellant has also applied f‑‑r the suspension of the judgment of the Election Tribunal and stay of further election in the Constituency No. P. F‑30‑Bannu‑I.

It is stated at the Bar that the Election Commission has announced the election programme in respect of holding a bye‑election to fill up the vacancy and 21st June 1973 has been fixed for holding election. The learned counsel for the applicant contends that the Election Tribunal has powers of the civil Court to try a suit under the Code of Civil Procedure, that this appeal is a continuation of the election petition and, therefore this Court as an a hate Court, has powers to suspend the operation of the impugned order under section 151, C. P. G. The question whether the order of the Election Tribunal declaring an election void can b3 kept in abeyance and further that the Election Commission be restrained from implementing its order to hold the Election came up for decision before a Division Bench of this Count in Muhammad yusuf Khan Khattak v. S. M. Ayub and 2 others (1). It w held that the powers of the High Court hearing appeal against decision o Election Tribunal being powers in exercise of special jurisdiction the High Court hearing the appeal has no power to stay the implementation of the order passed by the Election Commission and further that stay of proceedings with reference to section 151, C. P. C. are not allowed in election matters. This application is therefore dismissed in limine.

personally I am of the opinion that this Court has got the powers to order the suspension of the operation of the order of the Election Tribunal. Section 59, subsection (1) of Ordinance XIII of 1970 runs as follows :‑

Subject to the previsions of this Ordinance and the 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 "

The first part of section 61 of the Ordinance runs as follows :‑

"The Tribunal shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure.

Now these is no dispute that an appeal is a continuation of the original trial and in this context looking at the above two provisions collectively the irresistible conclusion is that this appellate Court has also gut all the powers that an appellate Court has under the Civil Procedure Code and it can, therefore, order the suspension of the operation of the order impugned before it.

S. A. H.

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