Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 20.6.2002 passed by learned Peshawar High Court, Peshawar, whereby the writ petition preferred on behalf of respondents has been accepted and judgment dated 9.7.2001 passed by the Election Tribunal has been set aside.
2. Precisely stated the facts of the case are that petitioner and Respondents Nos, 1 and 2 contested election for the posts of Nazim and Naib Nazim from Union Council Kalu Khan District Swabi. The petitioner and Muhammad Rashid (Respondent No, 3) were declared as returned candidates for the posts of Nazim and Naib Nazim. As a result of unofficial counting Respondents Nos, 1 and 2 had obtained 1617 votes but number of votes were increased by two votes after official counting held on 26.3.2001. On 26.3.2001 Respondent No, 1 preferred an application to the District Returning Officer for counting of all the valid as well as invalid votes but with no avail in spite of the fact that direction of recounting was also given by the District Returning Officer. The Returning Officer Kalu Khan counted only invalid votes. Being aggrieved an election petition was preferred before the Election Tribunal which was rejected vide judgment dated 9.7.2001. Being dissatisfied the petitioner filed a writ petition which has been dismissed vide judgment impugned, hence this petition.
3.Syed Asif Shah, learned ASC entered appearance on behalf of petitioner and urged with vehemence that the legal and factual aspect of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is next contended that the evidence which has come on record has not been evaluated vigilantly but on the contrary the controversy has been resolved on conjectural presumptions having no nexus whatsoever with the evidence. It is further contended that the election petition filed by Respondents Nos, 1 and 2 was neither signed nor properly verified which aspect of the matter has been ignored resulting in serious prejudice against the petitioner. It is pointed out that the election petition was presented on 25.4.2001 by Mr. Muhammad Irfan Khan, Advocate who was not properly engaged by Respondent No, 2 as wakalatnama was not signed by him. It is urged emphatically that the learned Tribunal had rightly rejected the plea of respondent for re-counting in the absence of any lawful justification and the learned Division Bench had no jurisdiction to substitute the findings of learned Election Tribunal with their own as no interference could have been made in arena of factual controversy while exercising Constitutional jurisdiction.
4. Syed Asif Shah, learned ASC appeared for caveators and supported the judgment impugned for the reasons enumerated therein with submission that no illegality whatsoever has been committed by the learned Division Bench of Peshawar High Court and the conclusion arrived at by means of judgment impugned being unexceptionable does not warrant interference.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of the NWFP Local Government Elections Rules, 2000 (hereinafter referred to as the Rules), scanned the entire record with the eminent assistance of learned counsel and gone through the judgment dated 9.7.2001 passed by the Election Tribunal as well as the judgment impugned. After having gone through the entire record we are not persuaded to agree with the prime contention of learned ASC that the mandatory provisions as contained in rule 71 of the Rules were not adhered to strictly because the presentation of election petition was not proper as Mr. Muhammad Irfan Khan, Advocate had no locus standi to do the needful without getting his Wakalatnama signed for the simple reason that it has been agitated in oblivion of the provisions as contained in Rule 71 (3) of the Rules whereby the election petition could have been filed by the respondent himself. It is not the case of petitioner that respondent was not accompanying Mr. Muhammad Irfan Khan, Advocate at the time of presentation of the election petition. We have also adversed to the contention of learned ASC that the petition was not verified and Wakalatnama was not signed as per requirement of law and this score alone it should have been dismissed. A careful scrutiny of record would reveal that the election petition was signed by both the respondents with solemn affirmation that the contents of election petition were correct to the best to their knowledge and belief. The affidavit was also got signed by the Oath Commissioner. The provisions as contained in Rule 73(3) of the Rules have not been violated. The learned ASC could not furnish plausible justification that how and in what manner the provisions as contained in Rule 73(3) of the Rules was not complied with. The provisions as contained in Rule 73(3) of the Rules are capable enough to meet all coat of such eventualities and no scholarly interpretation is called for. The election petition and annexure were got signed and verified properly in accordance with the relevant Rules read with Order VI, Rule 15 of the C.P.C: which was made applicable by virtue of Rule 73(3) of the Rules.
6. The question of corrupt practices asserted in an unambiguous manner in the election petition (see para-8) could not be resolved without affording proper opportunity of hearing to the respondents which aspect of the matter has been dealt with in a casual and cursory manner by the Election Tribunal which amounts to flagrant violation of the principles of natural justice, fair play and equity. The said illegality, however, has been rectified by the learned High Court vide judgment impugned by giving cogent reasons which are reproduced herein below for ready reference:- "The learned Tribunal, while dealing with the question of recounting, has rejected the plea of the petitioners on the ground that no reasonable ground was shown to it to enter the phase of recounting. It was the duty of the learned tribunal to have appreciated the law in this regard. If only two invalid votes could be found to be valid during the recounting of invalid votes, then was every possibility that recounting of valid votes would have changed the result of the elections. The reason given for not doing to order recounting is not valid. The learned Presiding Officer of the Tribunal also failed to appreciate that the petitioner had in paragraph 8 of the Election Petition mentioned corrupt practices. The petitioners deserved to be provided with a chance to adduce evidence in order to substantiate their case which was not provided to them by the learned Tribunal."
7. The learned ASC could not point out any jurisdictional error, illegality or infirmity in the judgment impugned persuading us to grant leave to appeal. Besides that no question of law of public importance is involved in the matter. The petition being meritless is dismissed and leave declined.