' HASNAT AHMAD KHAN, J.- Through this writ petition the legality and validity of order dated 13-12- 2007 passed by an Election Tribunal Punjab, Lahore High Court, Lahore, has been called into question.
2. Brief facts of the case are that the petitioner being an aspirant to become a member of Punjab Provincial Assembly submitted his nomination papers for constituency PP-151, Lahore, Punjab which were duly accepted by the Returning Officer i.e, respondent No,2 vide order dated 4-12-2007. It would be relevant to point out here that at the time of scrutiny no body objected against the acceptance of the nomination papers submitted by the petitioner. However, after the acceptance of nomination papers, respondent No,3 filed Election Appeal No, 158/2007 before respondent No,l herein seeking rejection of the nomination papers filed by the petitioner. After the preliminary hearing of said appeal the petitioner, who was respondent therein, was noticed. The said appeal finally came up for hearing before the learned Election Tribunal on 13-12- 2007 but neither the appellant nor his learned counsel opted to pursue the same. The petitioner also failed to enter appearance before the Election Tribunal on the said date, however, in the absence of the parties the appeal was allowed after holding that the degree on the dint of which the petitioner was claiming to be a graduate was a forged one.
3. The petitioner challenged the said order through the instant writ petition which came up for hearing before this Court on 17-12-2007 on which date this Court ordered to issue notice to the respondent No,3 for today. While attending to the application filed by the petitioner under section 151, C.P.C. The operation of the order, of the learned Election Tribunal was suspended on the said date.
4. The learned counsel for the petitioner contended that the impugned order dated 13-12-2007 is liable to be quashed and set aside simply on the ground that the learned Election Tribunal had got no jurisdiction to decide the appeal filed by the respondent No,3, in his absence. To clarify his submission, the learned counsel submitted that by virtue of section 141, C.P.C. The provisions of said Code were applicable to the proceedings conducted by the Election Tribunal constituted under subsection (5) of section 14 of the Representation of the People Act, 1976. He further maintained that under Order XLI Rule 17, C.P.C. No appeal can be decided on merits in the absence of the appellant and his counsel and the appellate Court can either adjourn the appeal or dismiss the same for non-prosecution.
5. Conversely, the learned counsel appearing on behalf of respondent No,3 has vigorously opposed this petition on the ground that the learned Election Tribunal was fully competent to decide the appeal even in the absence of the appellant and his counsel. He has maintained that the provisions of Civil Procedure Code are not attracted to the proceedings conducted by the Election Tribunal constituted by the Election Commission of Pakistan. In the alternative he has emphasized that under section 14 (5A) of the Representation of the People Act, 1976 the Election Tribunal can reject the nomination papers of any candidate on receipt of any information or material brought to its knowledge by any source, therefore, the learned Election Tribunal was within its right to decide the appeal filed by the respondent No, 3 (herein) even in his absence. The learned counsel has further submitted that the petitioner being not in possession of a genuine B.A degree is not qualified to contest the forthcoming elections, therefore, the instant petition merits dismissal.
6. After hearing the arguments put forth by the respective learned counsel for the parties we tend to agree with the arguments advanced by the learned counsel for the petitioner. Admittedly at the time of scrutiny of nomination papers no body objected against the nomination papers filed by the petitioner. It is also admitted fact that on the date of decision of appeal filed by the respondent No, 3 neither the appellant/respondent No,3 nor his learned counsel had appeared before the learned Election Tribunal. Similarly the present petitioner, who was arrayed in the said writ petition as respondent No,2, did not appear personally or through his counsel on the said date i.e, 13-12-2007.
In absence of both the parties and especially the appellant the only power which was available to the learned Election Tribunal was to dismiss the appeal due to non-prosecution, as mandated by Order XLI, Rule 17, C.P.C. Therefore, according to our view the learned Election Tribunal travelled beyond its jurisdiction to dispose of the appeal filed by respondent No,3 on merits. If any case law on the subject is required reference may be made to the cases of Haji Abdul Aziz Nizami v. Mst. Attia Begum and 3 others (PLD 1986 Lahore 214), M. Saeed Ahmad Dar and 14 others v. Shahabuddin and 16 others (PLD 1982 Lahore 362) and Pakistan Day Memorial Committee and another v. Mian Abdul Khaliq & Co. Civil Engineers & Contractors (1984 CLC 3332). We have further observed that under the law in absence of both the parties the appeal ought to have been dismissed while applying the provisions of Order IX, Rule 3, C.P.C. As far as the objection raised by the learned counsel for respondent No,3 to the effect that the provisions of Civil Procedure Code are not applicable to the proceedings pending before the Election Tribunal constituted under subsection (5) of section 14 of the Representation of the People Act, 1976, is concerned, we are not inclined to accept the same inasmuch as proceedings before the flection Tribunal are akin to Civil Proceedings. In absence of any specific procedure for decision of Election Appeals the provisions of section 141, C.P.C. Would cater for the application of provisions of Civil Procedure Code during the said proceedings.
Therefore, we are of the view that the provisions of Civil Procedure Code are fully attracted to the proceedings conducted by the Election Tribunal constituted under the aforementioned law. Our view in this regard is fortified by the cases of Mubassar Hussain Cheema, Advocate v Nasrullah Khan and 3 others (2000 CLC 191), Muhammad Afzal v. Niaz Ahmad and another (1999 MLD 1744) and Raja Abdul Qayyum v. Ch. Latif Akbar, Advocate and 2 others (1994 CLC 2041).
7. There is no cavil with the proposition that under subsection (5A) of section 14 of the Representation of the People Act, 1976 and Election Tribunal constituted^ under subsection (5) of the same section may reject nomination papers filed by any candidate on the basis of any information or material brought to its knowledge by any source but admittedly in this case the learned Election Tribunal had not proceeded under the said provision of law rather the said learned Tribunal had taken cognizance of the matter brought before it through an appeal filed under subsection (5) of Section 14 of the Representation of the People Act, 1976, therefore, the objection raised by the learned counsel for respondent No,3 in this regard is also spurned.
8. C D As we are inclined to accept this writ petition on technical grounds, therefore, we are not intentionally touching upon the merits of the case regarding the genuineness or otherwise of the B.A. Degree possessed by the petitioner. The respondent No,3, if need be, would be within his right to avail the remedies provided to him under Article 225 of the Constitution of Islamic Republic of Pakistan, 1973 as well as section 52 of the Representation of the People Act, 1976 after the conclusion of the election process.
9. For what has been stated above, since we are of the opinion that while allowing the appeal filed by respondent No,3 in absence of both the contesting parties the learned Tribunal had travelled beyond its jurisdiction, the order dated 13-12-2007 is not sustainable and therefore, is liable to be set aside which is consequently quashed. Resultantly, this petition is allowed, the order dated 4-12- 2007 passed by the learned Returning Officer PP-151, Lahore, Punjab accepting the nomination papers of the petitioner stands restored and the petitioner is allowed to contest the forthcoming elections from the aforementioned constituency . The office is directed to immediately transmit a copy of this order to the concerned authorities.