C.M.No.1 of 2025 This is an application, supported by an affidavit, for recall of order dated 13.12.2024, whereby the titled election petition filed by the Petitioner/Applicant was dismissed for non-prosecution.
2. Learned counsel for Respondent No.1/Returned Candidate has raised an objection on the maintainability of the present application, inter alia, on the ground that once the election petition is dismissed for non-prosecution, this Tribunal becomes functus officio and hence, has no power to restore the same. Reliance has been placed upon cases reported as Chaudhry Asad Ur Rehman v.
The Election Commission of Pakistan and 17 others (2018 CLC 1040); Shehzad Khan Khakwani v.
Aamir Hayat Hiraj and others (2011 CLC 25); and Asif Nawaz Fatiana v. Walayat Shah and others (2007 CLC 610). Learned counsel submits that the reason is obvious inasmuch as the Tribunal can only exercise such powers, which are clearly vested in it by virtue of the Elections Act, 2017 ("the Act 2017") and power to dismiss the election petition is available under Section 164 of the Act 2017 but no such power is vested to restore the petition. Adds that such power cannot be exercised merely on the ground that the Code of Civil Procedure, 1908 ("CPC") is applicable and the Tribunal is vested with the general power under Order IX Rule 9 read with Section 151, CPC. Further avers that the judgment of the Islamabad High Court in case of Chaudhry Asad Ur Rehman supra is binding on this Tribunal being a persona designata in terms of Article 201 of the Constitution of Islamic Republic of Pakistan ("the Constitution").
3. Conversely, learned counsel for the Petitioner/Applicant has placed reliance upon case reported as Ch. Safdar Mumtaz Sandhu v. Government of the Punjab through Chief Secretary, Punjab and others (PLD 2009 Lahore 1) to contend that the present application is maintainable.
4. Arguments heard. Record perused.
5. The legal question is whether an Election Tribunal has the authority under the Act 2017 to restore a petition that has been dismissed for non-prosecution, under Section 164 of the Act 2017?
6. Section 164 of the Act 2017 reads as under: "164. Failure of petitioner to appear.__ Where, at any stage of the trial of an election petition, the petitioner fails to make appearance, the Election Tribunal may dismiss the petition for default, and make such order as to costs as it may think fit."
In case of Chaudhry Asad Ur Rehman supra, Section 76 of the Representation of the People Act, 1976 ("ROPA") was interpreted to hold that the Tribunal has no power to restore the election petition dismissed for non- prosecution. Section 164 of the Act 2017 is pari material with provision of Section 76 of the ROPA. Section 76 reads as under: "76. Failure of petitioner to appear. Where, at any stage of the trial of an election petition, no petitioner makes an appearance, the Tribunal may dismiss the petition for default, and make such order as to costs as it may think fit."
In order to appreciate the controversy, it is imperative to understand the powers available to an Election Tribunal. In this regard, the relevant provisions are Section 141 of the Act 2017 and Section 64 of the ROPA, which are reproduced as under: "141. Powers of the Election Tribunal.___
(1) The Election Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), and shall be deemed to be a civil court within the meaning of sections 476, 480 and 482 of the Code.
(2) For the purpose of enforcing attendance of witnesses, the local limits of the jurisdiction of the Election Tribunal shall be the territories to which this Act extends."
"64. Power of the Tribunal.-The Tribunal shall have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908, (Act V of 1908), and shall be deemed to be a civil court within the meaning of sections 476, 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)."
A careful examination of the judgment rendered by the Islamabad High Court in case of Chaudhry Asad Ur Rehman supra as also the judgments referred therein and while also scanning a catena of other judgments on the subject, I am of the opinion that the position supporting the authority of the Tribunal to restore an election petition dismissed for non-prosecution under Section 164 of the Act 2017, is more persuasive. The Islamabad High Court based its conclusion--that such a power does not vest in the Tribunal--primarily by relying on judgment of the Supreme Court of Pakistan reported as Mian Zahid Sarfraz v. Raja Nadir Pervaiz Khan and others (1987 SCMR 1107). However, the said judgment did not concern the restoration of a petition dismissed for non-prosecution.
Rather, it pertained to an order through which preliminary issues were decided, and the case was subsequently fixed for framing of issues on merits. Moreover, while that judgment does observe that an order passed under Section 76 of ROPA is the type of order envisaged under Section 67, it does not hold that the Tribunal lacks inherent jurisdiction to restore a petition dismissed for non- prosecution. Hence, there is no discussion on this specific issue in the cited case. Similarly, the other cases relied upon by the Islamabad High Court are cases reported as Haji Muhammad Asghar v.
Malik Shah Muhammad Awan and another (PLD 1986 SC 542) and Habibul Wahab Alkhairi v.
Sheikh Rashid Ahmad and 5 others (PLD 1989 SC 760), which also do not address the question of restoration of a petition dismissed for non-prosecution. In the latter case, the petition was disposed of on the ground of having become infructuous--a circumstance distinguishable in both form and consequence from dismissal of the election petition, for non-prosecution. None of these judgments of the Honourable Supreme Court articulate a categorical bar on the restoration of such election petitions, nor do they consider the scope of inherent powers of the Tribunal, in this regard.
7. Conversely, the question of whether the Tribunal can restore an election petition has been examined by a learned Larger Bench of the Lahore High Court in case reported as Sardar Talib Hussain Nakai v. Rana Muhammad Hayat and 2 others (PLD 2011 Lahore 207). The said judgment explicitly holds that where the statute is silent on a particular procedural aspect, an adjudicating authority possesses incidental and inherent powers to address such lacunae--this principle being equally applicable to the restoration of an election petition. The Larger Bench also referred to the judgment of the Punjab Election Tribunal in Syed Fakhar Imam v. Muhammad Raza Hayat Miraj and 5 others (2009 CLC 1), wherein it was categorically held that the Election Tribunal does have the power to restore an election petition and the learned Larger Bench noted that the said judgment was affirmed by the Honourable Supreme Court. The learned Bench held as under: "9. The question of exercise of certain powers by courts and tribunals without there being specific provisions in the relevant laws, has been examined by this Court as well as the honourable Supreme Court of Pakistan in matters involving restoration of election petitions dismissed in default. These cases arose out of absence of any provision in the election laws or the Notification, for restoration of petitions dismissed for non-prosecution. It was held that if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and these powers are inherent in adjudicating bodies. Reference may be made to Rana Zulfiqar Ali Khan v. Election Tribunal and others (2001 YLR 336) and Muhammad Hanif v.
District Judge and others (1983 CLC 2965).
10. In Muhammad Shafi and another v. Election Tribunal and others (1983 CLC 303), it was held that unless it is expressly taken away, a court or Tribunal will have power to do justice between the parties. In the case of Syed Fakhar Imam v. Muhammad Raza Hayat and 5 others (2009 CLC 1), an Election Tribunal restored a petition, which had earlier been dismissed for non- prosecution, in exercise of inherent powers, despite the fact that there was no power in ROPA or the Notification to do so. The honourable Supreme Court of Pakistan upheld the decision of the Tribunal.
12. The question before us can be looked at from yet another angle. There is no. provision in the ROPA or the Notification regarding framing of issues. If the argument made by the learned counsel for the petitioner were to be accepted and a strict view were to be taken to the effect that in the absence of a specific provision a tribunal cannot frame issues under its inherent powers, then, framing of issues by an Election Tribunal would be rendered illegal. However, it has been held that although the Election Tribunal can dispense with framing of issues, if it decides to do so, such exercise cannot be termed as illegal."
(Emphasis supplied)
The learned Larger Bench also held as under: "21. The emphasis of election laws is to ensure expeditious disposal and to avoid protracted litigation. All procedural rules are geared towards achieving this goal. Depriving the election tribunal of the requisite flexibility in procedural matters like the mode of taking down evidence would not advance the above purpose or foster the objective of expeditious administration of justice."
It is evident from the above quoted passages from the judgment in case of Sardar Talib Hussain Nakai supra that the learned Larger Bench of Lahore High Court was of the view that (i) the judicial consensus is that an Election Tribunal does have the inherent power to restore a petition that has been dismissed for non-prosecution; (ii) generally, if there is no provision in any law to do a certain thing, then there are incidental powers to perform such an act and these powers are inherent in adjudicating bodies; and (iii) depriving the Election Tribunal of the requisite flexibility in procedural matters would not advance the objective of expeditious administration of justice in election matters.
8. Moreover, apart from the abovereferred judgment of the learned Larger Bench of Lahore High Court, there are other precedents where the Lahore High Court has held, in constitutional jurisdiction, that an Election Tribunal does possess the power to restore an election petition that has been dismissed for non-prosecution. Cases reported as Muhammad Amjad v Muhammad Anwar and 10 others (2003 MLD 57); Rana Zulfiqar Ali Khan and another v. Election Tribunal, Gujranwala, Hafizabad Camp/District and Sessions Judge, Hafizabad and 4 others (2001 YLR 336); and Muhammad Shafi and another v. Election Tribunal, Multan and another (1983 CLC 3031) are referred. In case of Muhammad Shafi supra, a learned Division Bench of the Lahore High Court held as under: "4. We agree with the learned counsel for respondent No. 2 that it is within the inherent jurisdiction of a Court or a Tribunal to take up the matter again, if it has been dismissed for non-prosecution if the non appearance is justified in the circumstances of the case. The matter can be illustrated by means of a simple example. A case is called for. The party does not appear. It is dismissed in default. Soon thereafter the party appears and states that it stumbled on the way and was late only by a fraction of a minute. It will be open to the Court to say that it will recall its order of dismissal in default and hear the party. It cannot be said that the Court has no such power. Such an authority vests in an adjudicating body to determine the matter on merits. Unless it is expressly taken away by statute, the Court or Tribunal will have power to do all that is necessary to do justice between the parties. The contention to the contrary of the learned counsel for the petitioners has no force or merit. In the present case, the learned Election Tribunal has allowed the restoration application in the circumstances of the case and he having jurisdiction, it cannot be said that it acted without lawful authority."
9. In view of the judgment of the learned Larger Bench of the Lahore High Court, as also the learned Division Bench, the dicta laid down in case of Chaudhry Asad Ur Rehman supra has no binding value even if the argument of learned Counsel for the Respondent No.1/Returned Candidate is accepted that this Tribunal is persona designata and is obligated to follow the judgment of a High Court.
10. Even otherwise, the reasoning adopted in case of Sardar Talib Hussain Nakai supra is legally sound and doctrinally unassailable and the contention that Section 164 of the Act 2017 and Section 76 of the ROPA expressly provides for dismissal of a petition for non-prosecution but omits any provision for its restoration, thereby implying a legislative intent to deny restoration, is not convincing. It must be underscored that the absence of an express provision does not amount to a prohibition. This point is well illustrated by the celebrated decision in case titled H.M. Saya & Co.
Karachi v. Wazir Ali Industries Ltd., Karachi and another (PLD 1969 SC 65), where the Honourable Supreme Court held as under: "A stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from [appealing]... that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice."
11. Furthermore, the Honourable Supreme Court in case reported as Muhammad Ijaz Ahmad Chaudhry v. Mumtaz Ahmad Tarar and others (2016 SCMR 1), while addressing an objection regarding admissibility of certain documents before the Election Tribunal, observed as follows: "13. As already noted there is no prohibition in the ROPA against reception of fresh evidence by an Election Tribunal at any stage of its proceedings. Consequently, the Election Tribunal can devise its own procedure to promote the cause of justice. Such a course of action that is adapted by an Election Tribunal to regulate its proceedings instead of following the technicalities of C.P.C., except some provisions specifically made applicable for limited purposes, has been approved in Umar Aslam v. Sumera Malik (PLD 2007 SC 362). Now the documents Exb.P-4 and Exb.P-8 are admissible for being certified in terms of Article 89(5) of the QSO. Their contents are directly germane to the question of genuineness of the appellant's claimed foreign BSC qualification.
According to Zafarullah Khan's case (supra), the reception of such documents by the Election Tribunal in evidence is a fair decision provided this is done under a procedure that avoids prejudice to the appellant and complies the rules of natural justice."
(Emphasis supplied)
The above quoted observations underscore the Tribunal's functional flexibility and procedural autonomy--principles that equally support its competence to entertain restoration applications in the interest of justice.
12. At this juncture, it is also imperative to refer to the provisions of the Act 2017 as also ROPA to the types of the decisions that can be made by a Tribunal as also the provisions pertaining to filing of appeal. Section 154 of the Act 2017 lists the orders that can be passed by an Election Tribunal on an election petition. Notably, Section 154(1) states such orders are those, which may be made by Tribunal "upon the conclusion of the trial". Furthermore, the said list does not expressly refer to an order passed under Section 164. Section 154 of the Act 2017 states as follows: "154. Decision of the Election Tribunal.---
(1) The Election Tribunal may, upon the conclusion of the trial of an election petition, make an order --
(a) dismissing the petition;
(b) declaring--
(i) the election of the returned candidate to be void and directing that fresh poll be held in one or more polling stations;
(ii) the election of the returned candidate to be void and the petitioner or any other contesting candidate to have been elected; or
(iii) the election as a whole to be void and directing that fresh election be held in the entire constituency.
(2) Save as provided in Section 155, the decision of an Election Tribunal on an election petition shall be final."
On the other hand, Section 67 of ROPA contemplated the orders that could be passed by the Tribunal on an election petition, 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.
(1A) The Election Tribunal shall proceed with the trail of the election petition on day to day basis and no adjournment shall be granted to any party for more than seven days and that too on payment of costs as the Tribunal may determine and the decision thereof shall be taken within four months from its receipt: Provided that where a petition is not decided within four months, further adjournment sought by any party shall be granted only on payment of special cost of ten thousand rupees per adjournment and adjournment shall not be granted for more than three days: Provided further that if the Tribunal itself adjourns it shall record reasons for such adjournment: Provided also that where 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 itself, or on application of the aggrieved party, shall after issuance the show cause notice to the returned candidate, within fifteen days from the date of show cause notice, may order that the returned candidate has ceased to perform the functions of his office either till the conclusion of the proceedings or for such period as the Tribunal may direct.
(2) Save as provided in sub-section (3), the decision of a Tribunal on 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, which shall be decided within thirty days and the decision of the Supreme Court on such appeal shall be final.
Explanation.--In this sub-section, "decision of the Tribunal" shall not be deemed to include an order made by the Commission in the exercise of its powers under section 103AA."
(Emphasis supplied)
Whereas Section 155 of the Act 2017 reads as under: "155. Appeal against decision of Election Tribunal.--(1) Any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to an Assembly or Senate may, within thirty days of the date of the decision, appeal to the Supreme Court.
(2) Any person aggrieved by the final decision of the Election Tribunal in respect of an election petition challenging election to a local government, may, within thirty days of the date of the decision, appeal to the High Court having jurisdiction and the decision of the High Court on such appeal shall be final.
(3) An appeal under sub-sections (1) and (2) shall be decided within one hundred and eighty days: Provided that an injunctive order if passed shall stand vacated automatically if the appeal is not decided by the High Court or the Supreme Court, as the case may be, within one hundred and eighty days."
It is to be kept in sight that under Section 155 of Act 2017 an appeal will lie to the Supreme Court against a "final decision" of the Tribunal. In contrast, Section 67(3) of ROPA stated that any person aggrieved by a "decision" of the Tribunal may challenge it by way of an appeal to the Supreme Court. Significantly, Section 67(3) of the ROPA did not use the term "final decision" that has been used in Section 155 of the Act 2017. Therefore, the scheme of the Act 2017 is to be kept in sight that reveals three distinct modalities for the disposal of an election petition: (i) by a decision under Section 154 after trial, which includes dismissal, declaration of void election, or declaration of another candidate as elected -- all of which are explicitly appealable under Section 155; (ii) by summary rejection under Section 145(1), where the petition is found to be deficient in form or substance at the threshold; and (iii) by dismissal in default of prosecution. While Section 145(1) does not expressly provide a right of appeal, this Tribunal is of the view that such a rejection -- having been made after application of judicial mind -- constitutes a "final decision" and thus attracts the appellate mechanism under Section 155. The rationale is that where a judicial determination terminates the lis before the Tribunal, it cannot be excluded from the ambit of a "decision" merely due to the absence of express language. In contrast, dismissals in default are procedural termination/disposals of the matter without the application of judicial mind, leaving room for the petitioner to revert back and seek restoration of the petition by invoking inherent powers of the Tribunal, as discussed above, subject to show of sufficient cause. Therefore, such procedural terminations do not constitute a final decision. The deliberate use of the term "final decision" in Section 155 of the Act 2017 reinforces and supports this interpretation.
13. Suffice to observe that the Act 2017 aims at ensuring expeditious and effective adjudication of the election disputes and this legislative objective is advanced--not defeated--by recognizing the Tribunal's authority to restore petitions dismissed for non-prosecution, provided sufficient cause is shown. Such an approach facilitates adjudication on merits rather than encouraging dismissal on procedural technicalities. To imply a prohibition from the silence of the statute would yield a result contrary to the principles of justice and procedural fairness.
14. In view of the above discussion, I am of the opinion that this Tribunal has the power to restore the petition dismissed for non-prosecution.
15. Having held above and while perusing the contents of the application for restoration of the petition in this case, it has been noted that the main petition was dismissed for non-prosecution on 13.12.2024 when learned counsel for Respondent No.1/Returned Candidate as also learned Law Officer and Legal Advisor for the Election Commission of Pakistan were in attendance and on 13.01.2025, the present application was filed on the grounds that the Petitioner/Applicant, initially, engaged counsel, namely, Rana Asif Saeed, Advocate who hails from Multan and, on 13.12.2024 was preoccupied in Multan Bench of the Lahore High Court. Cause list of Multan Bench of Lahore High Court pertaining to the cases of the said counsel has been annexed with the application.
Additionally, it has been averred that the Petitioner/Applicant was suffering from lower respiratory tract infection and the medical certificate of the Petitioner/Applicant has also been appended with the application. Perusal of cause list of cases of Rana Asif Saeed, Advocate exhibits that he was busy before the Multan Bench of Lahore High Court on the fateful day. The medical certificate of the Petitioner/Applicant reflects that he was suffering from respiratory problem. Undeniably, the main petition was dismissed in December, 2024, when there is smog and/or fog, across the province, and it is common knowledge that the respiratory problem becomes severe and it is difficult for a patient suffering from respiratory disease to travel. Even otherwise, the application is well within time and duly supported by affidavit and no serious objection has been raised from the other side, hence, the same is allowed and the titled petition is restored to its original number. Office is directed to fix the titled petition on 26.08.2025 for further proceedings.