C.M. No, 1 of 2010 ' SH. NAJAM-UL-HASAN, J.---Shehzad Khan Khakwani, applicant/petitioner filed Election Petition No, 22 of 2008 before the Chief Election Commissioner of Pakistan, Islamabad. The same was entrusted to this Tribunal by the Election Commission of Pakistan for disposal. The petition came up for hearing before this Tribunal on 11-1-2010 when no one appeared to prosecute the election petition which was adjourned to 15-1-2010. However, same was the position on the said date and consequently the election petition was adjourned to 1-2-2010 by granting last opportunity to the parties. On 1-2-2010 again no one appeared on behalf of the election petitioner to prosecute the petition which was resultantly dismissed for non-prosecution.
2. After a lapse of about five months of dismissal of the election petition, the applicant/election petitioner came up on surface and filed this application seeking re-call of order dated 1-2-2010 passed by this Tribunal in Election Petition No, 22 of .2008 whereby the said Election Petition had been dismissed for non-prosecution and consequently restoration of the said petition.
3. This application was fixed by the office before this Tribunal on 30-7-2010. When questioned as to under what provision of law the application was competent, learned counsel for the applicant submitted that the provisions of C.P.C. Were applicable to an Election Petition hence the application for restoration of the petition had been filed under section 151 of the C.P.C. I had adjourned the matter and the learned Law Officer was directed to assist the Tribunal on the point as to whether this application could be filed straightway in this Tribunal without having recourse through Election Commission of Pakistan; whether the same was maintainable as there was no power with the Tribunal to re-call or review its order under the Representation of the People Act, 1976 once it had decided the matter and whether provisions of C.P.C. Were applicable for restoration of the election petition. This application was listed for hearing on 24-8-2010 when none appeared on behalf of the applicant and the matter was adjourned to 30-8-2010. On the said date again no one entered appearance to prosecute this application on behalf of the applicant and consequently the matter was adjourned for today with an observation that last opportunity is granted to the petitioner/applicant. Even today position is the same and none is present on behalf of the applicant though name of the learned counsel for the applicant is duly reflected in the cause list. This shows the interest of applicant to pursue his cause.
4. However, in the interest of justice, instead of straightway dismissing the application for non- prosecution, I consider it appropriate to hear the learned Law Officer.
5. The learned Assistant Advocate-General submits that under section 52 of the Representation of the People Act, 1976 an election petition is filed before the Chief Election Commissioner who has the power to scrutinize the petition and if not found in order as per law, the same shall be dismissed forthwith as per section 56 of the Act as such it is not permissible for this Tribunal to directly entertain a petition or application and the same has to be routed through the Election Commission of Pakistan; that under section 76 of the Representation of the People Act, 1976 this Tribunal has the power to dismiss the election petition if the petitioner does not appear but there is no power with the Tribunal to re-call or review its order, hence, the application in hand is not maintainable. So far as application of C.P.C. For restoration of a petition is concerned, the learned Law Officer submits that although section 64 of the Representation of the People Act, 1976 provides that Election Tribunal has all powers of a civil court, trying a suit under C.P.C. Yet there are specific provisions in the Representation of the People Act, 1976 which prescribe a special procedure for trial of an election petition and define the powers of a Tribunal. He goes on to say that insertion of section 76 of the Act in spite of the fact that the under Order IX of the C.P.C. The Civil Court has the power to dismiss a suit for default and take proceedings ex parte against absenting party and on showing sufficient cause to restore suit and set aside ex parte orders, clearly contemplates wisdom of the legislature a conscious departure from procedure prescribed by the C.P.C. Otherwise there would have been no need to specifically empower Election Tribunal to dismiss a petition for default and that provisions of section 64 of the Act per se does not make Tribunal a Civil Court in presence of Notification issued by the Election Commission for procedure for trial as such an application for restoration under section 151, C.P.C. Is not competent.
6. I have gone through the relevant provisions of law in the light of submissions made by the learned Law Officer. An election can be called in question by a candidate, for that election through an election petition under section 52 of the Representation of the People Act, 1976 before A the Chief Election Commissioner. Sections 53, 54 and 55 of the Act provide as to how an election petition is to be presented and what should be its contents. Under section 56 the Chief Election Commissioner has been empowered to dismiss a petition if it is not found in accordance with the instructions prescribed in sections 53, 54 and 55 of the Act. Under section 56(2) of the Act, if the Commissioner finds the petition in accordance with the prescribed form it refers the petition to a Tribunal for trial. Section 62 empowers the Election Commission to lay down procedure for trial of the election petition. Under this provision of law, the Election Commission has issued Notification No, F.1(7)85-Cord. Dated 16-3-1985 whereby procedure to be adopted by the Election Tribunal for trial has been provided. All the above provisions of law would show that it is only the Election Commission where a petition is to be filed and which has to send the same to a Tribunal and thereafter the Tribunal has to conduct trial of the petition in accordance with the procedure prescribed by the. Commissioner. Under section 76 of the Act even the Tribunal has the power to dismiss an election petition if the petitioner does not enter appearance to prosecute the petition. I have also minutely gone through the provisions of the law on the aspect and find that although a Tribunal has power to dismiss a petition for non-prosecution but there is no provision in the Representation of the People Act, 1976 empowering the Tribunal to review or re-call its own order meaning thereby that once a matter is decided one way or the other the Election Tribunal become functus officio and has no power to re-open the matter. The Tribunal cannot review its order of its own and the power of review can only be exercised if it is so conferred by the Statute. Although section 64 of the Representation of the People Act, 1976 envisages that the Election Tribunal shall have all the powers of a civil Court, trying a suit under C.P.C. Yet express provision of section 76 of the Representation of the. People Act, 1976 ousts the application of Order IX, C.P.C. Insertion of which is clearly indicative of the intention of legislature to have a conscious departure from procedure prescribed by C.P.C. Otherwise there would have been no need to specifically empower Election Tribunal to dismiss a petition for default. This intention of the legislature can further be fructified from the fact that section 62 (1) of the Act has been substituted vide Ordinance No,XVIII of 1985 dated 10-3-1985 through which the Election Commission has been empowered to lay down procedure for trial of an election petition. No need to mention here that the Representation of the People Act, 1976 is special law dealing only with election matters whereas C.P.C. Is a general law and if some departure has been adopted in the Special law and specific provision has been made, the same shall prevail and is to be followed. An Election Tribunal is creation of the Special Law and has to discover its powers primarily under the said law. In arriving at this conclusion I am fortified by the principle laid down in Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610) wherein it has been provided as under:-- "In presence of the special provisions made in the Representation of the People Act, 1976, as to the powers of the Tribunal, the general procedure mentioned in the Code of Civil Procedure, 1908 will not be applicable on the strength of principle that express mention of one excludes the other. The mention of one (power to dismiss the petition for default) and omission of non-provision for restoration, is intentional and thus the will of the law maker is to be given effect."
' It has been further provided: "By enacting special provisions in the Representation of the People Act, 1976 in the form of section 76 empowering the Tribunal to dismiss a petition for default, the legislature has clearly expressed its intention that the Tribunal had the power to dismiss the petition for such default but no power was given to it to set aside or recall such an order."
' It has also been held in the said judgment: "The power of review can only be exercised when so conferred by the relevant statute and it does not inhere in the Tribunal merely because of its existence."
7. Thus looking at from whatever angle, this petition is maintainable and is accordingly dismissed being misconceived.
8. Before parting with the order, I must deprecate the conduct of the applicant in pursing his cause who appeared to be hardly interested in the matter.