2007 PLP 1855 (CLC)

EJAZ AFZAL KHAN, J.

Petitioner through the instant petition has assailed the proceeding before the Election Tribunal culminating in the order dated 30-4-2007.

2. The main contention of the learned counsel for the petitioner was that where the petitioner was not served in accordance with the requirements of law, any proceeding taken at her back cannot be vested with any sanctity. He next submitted that once the application of the petitioner for setting aside the ex parte proceedings was allowed, the order of recount made at her back could not be left intact. Such an order, he added, would defeat the very purpose of setting aside the ex parte proceeding.

3. As against that, the learned counsel appearing on behalf' of the contesting respondents contended that where the order on the application for setting aside the ex-parte proceeding, leaving the recount done at the back of the petitioner intact, was accepted and acquiesced to, the petitioner cannot turn round now to question that through the instant petition, that too, when no specific prayer for its quashment has been made in the petition.

4. We have gone through the record carefully and considered the submission of the learned counsel .for the parties.

5. The record reveals that the petitioner was not served in accordance, with the requirements of law. Though substituted service through proclamation in the newspaper was resorted to, but nothing in black and white has been brought on the record to show as to why the normal modes of service were leaped over. We do not understand why the recount, done at the back of the petitioner, was left intact, when the ex parte proceeding, for quite tenable reasons, has been set aside. No canons of law would justify such a course. The entire proceeding including the recount was to be done de novo, once the Tribunal looked at the ex parte proceeding with reservation. The Tribunal going wrong in law, goes out side its jurisdiction, conferred on it, therefore, an order, thus, passed cannot be maintained. The cases of Pearlman v. Governors of Harrow School (1978) 3 WLR 736 and Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447 may well be referred hi this behalf.

6. Yes, many procedural technicalities, as highlighted by the learned counsel for the answering respondents, stumble the way of the petitioner to the redress asked for, but we without a moment's hesitation, would hold that they be taken as the stepping stones rather than the stumbling blocks in the way of administration of justice. This is what the procedural technicalities stand for acid nothing more. Even otherwise, a structure based on a defective order cannot sustain itself and has to collapse together with the order. B We, therefore, do not feel persuaded to maintain the impugned orders. For transparency in the proceeding, from the point of its commencement to the point of its accomplishment, is the most cherished requirement of law.

7. For the reasons discussed above, we allow this writ petition, set aside the impugned orders and send the case back to the learned Election Tribunal for decision afresh in accordance with law after making the recount in the presence of the petitioner. The parties are directed to appear before the learned Election Tribunal on 25-7-2007. H.B.T./162/P?????????????????????????????????????????????????????????????????????????????????????? Case remanded.