2004 S C M R 553

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Javed Iqbal, JJ

MUHAMMAD ASHFAQ‑‑‑Petitioner

versus

MUHAMMAD SHER KHAN and 11 others‑‑‑Respondents

Civil Petition No.408‑P of2002, decided on 7th October, 2003.

(On appeal from the judgmentdated 20‑6‑2002 of the Peshawar High Court, Peshawar, passed inWrit Petition No.923 of 2001).

North‑West Frontier Province LocalGovernment Elections Rules, 2000‑‑‑

‑‑‑‑Rr.71& 73(3)‑‑‑Civil Procedure Code (V of 1908), O.VI, R.15‑‑ Constitutionof Pakistan (1973), Art.185 (3)‑‑‑Corrupt practices,allegations of‑‑‑Presentation of election petition‑‑‑ElectionTribunal dismissed the election petition on the ground that the same was notproperly filed but High Court in exercise of its Constitutional jurisdictionset aside the order passed by the Election Tribunal‑‑‑Plearaised by the returned candidate was that the petition was not filed inaccordance with the provisions of O.VI, R.15, C.P.C.‑‑‑Validity‑‑Electionpetition and annexes were got signed and verified properly in accordance withthe relevant Rules read with Order VI, R.15, C.P.C. which was made applicableby virtue of R.73(3) of North‑West Frontier Province Elections Rules,2000‑‑‑Allegation of corrupt practices asserted in an unambiguousmanner in the election petition could’ not be resolved without affording properopportunity of hearing to the petitioners which aspect of the matter had beendealt with in a casual and cursory manner by the Election Tribunal and the sameamounted to flagrant violation of the principles of natural justice, fair playand equity‑‑‑High Court in exercise of Constitutionaljurisdiction had rightly rectified the illegality‑‑‑Nojurisdictional error, illegality or infirmity was pointed out by the returnedcandidates in the judgment passed by the High Court‑‑ No questionof law of public importance was involved in the matter‑‑ Leave toappeal was refused.

Syed Asif Shah, Advocate SupremeCourt and Syed Safdar Hussain, Advocate‑on‑Record (absent) forPetitioner.

Mian Mohibuliah Kakakhel,Advocate Supreme Court and Mir Adam Khan, Advocate‑on‑Record(absent) for Respondents.

Date of hearing: 7th October,2003.

ORDER

JAVED IQBAL, J.‑‑‑Thispetition for leave to appeal is directed against the judgment dated 20‑6‑2002passed by learned Peshawar High Court, Peshawar, whereby the writ petitionpreferred on behalf of respondents has been accepted and judgment dated 9‑7‑2001passed by the Election Tribunal has been set aside.

2. Precisely stated the facts ofthe case are that petitioner and respondents Nos.1 and 2 contested election forthe posts of Nazim and Naib Nazim from Union Council Kalu Khan District Swabi.The petitioner and Muhammad Rashid (respondent No.3) were declared as returnedcandidates for the posts of Nazim and Naib Nazim. As a result of unofficialcounting respondents Nos.1 and 2 had obtained 1617 votes but number of voteswas increased by two votes after official counting held on 26‑3‑2001.On 26‑3‑2001 respondent No.1 preferred an application to theDistrict Returning Officer for counting of all the valid as well as invalidvotes but with no avail in spite of the fact that direction of recounting wasalso given by the District Returning Officer. The Returning Officer, Kalu Khancounted only invalid votes. Being aggrieved an election petition was preferredbefore the Election Tribunal which was rejected vide judgment dated 9‑7‑2001.Being dissatisfied the petitioner filed a writ petition which has beendismissed vide judgment impugned, hence this petition.

3. Syed Asif Shah, learnedAdvocate Supreme Court entered appearance on behalf of petitioner and urgedwith vehemence that the legal and factual aspect of the controversy have notbeen appreciated in its true perspective which resulted in serious miscarriageof justice. It is next contended that the evidence which has come on record hasnot been evaluated vigilantly but on the contrary the controversy has beenresolved on conjectural presumptions having no nexus whatsoever with theevidence. It is further contended that the election petition filed byrespondents Nos. l and 2 was neither signed nor properly verified which aspectof the matter has been ignored resulting in serious prejudice against thepetitioner. It is pointed out that the election petition was presented on 25‑4‑2001by Mr. Muhammad Irfan Khan, Advocate who was not properly engaged by respondentNo.2 as Wakalatnama was not signed by him. It is urged emphatically that thelearned Tribunal had rightly rejected the plea of respondent for re‑countingin the absence of any lawful justification and the learned Division Bench hadno jurisdiction to substitute the findings of learned Election Tribunal withtheir own as no interference could have been made in arena of factualcontroversy while exercising Constitutional jurisdiction.

4. Syed Asif Shah, learnedAdvocate Supreme Court appeared for caveators and supported the judgmentimpugned for the reasons enumerated therein with submission that no illegalitywhatsoever has been committed by the learned Division Bench of Peshawar HighCourt and the conclusion arrived at by means of judgment impugned beingunexceptionable does not warrant interference.

5. We have carefully examined therespective contentions as agitated on behalf of the parties in the light ofrelevant provisions of the N.‑W.F.P. Local Government Elections Rules,2000 (hereinafter referred to as the Rules), scanned the entire record with theeminent assistance of learned counsel and gone through the judgment dated 9‑7‑2001passed by the Election Tribunal as well as the judgment impugned. After havinggone through the entire record we are not persuaded to agree with the primecontention of learned Advocate Supreme Court that the mandatory provisions ascontained in rule 71 of the Rules were not adhered to strictly because thepresentation of election petition was not proper as Mr. Muhammad Irfan Khan,Advocate had no locus standi to do the needful without getting his Wakalatnamasinged for the simple reason that it has been agitated in oblivion of theprovisions as contained in rule 71(3) of the Rules whereby the electionpetition could have been filed by the respondent himself. It is not the case ofpetitioner that respondent teas not accompanying Mr. Muhammad Irfan Khan,Advocate at the time of presentation of the election petition. We have alsoadverted to the contention of learned Advocate Supreme Court that the petitionwas not verified and Wakalatnama was not signed as per requirement of law andon this score alone it should have been dismissed. A careful scrutiny of recordwould reveal that the election petition was signed by both the respondents withsolemn affirmation that the contents of election petition were correct to thebest to their knowledge and belief. The affidavit was also got signed by theOath Commissioner. The provisions as contained in rule 73(3) of the Rules havenot been violated. The learned Advocate Supreme Court could not furnishplausible justification that how and in what manner the provisions as containedin rule 73(3) of the Rules was not complied with. The provisions as containedin rule 73(3) of the Rules are capable enough to meet all sorts of sucheventualities and no scholarly interpretation is called for. The electionpetition and annexure were got signed and verified properly in accordance withthe relevant Rules read with Order VI, rule 15 of the C.P.C. which was madeapplicable by virtue of rule 73(3) of the Rules.

6. The question of corruptpractices asserted in an unambiguous manner in the election petition (see para‑8)could not be resolved without affording proper opportunity of hearing to therespondents which aspect of the matter has been dealt with in a casual andcursory manner by the Election Tribunal which amounts to flagrant violation ofprinciples or natural justice, fair play and equity. The said illegality,however, has been rectified by the learned High Court vide judgment impugned byI giving cogent reasons which are reproduced hereinbelow for ready reference:‑‑

“Thelearned Tribunal, while dealing with the question of recounting, has rejectedthe plea of the petitioners on the ground that no reasonable ground was shownto it to enter the phase of recounting. It was the duty of the learned Tribunalto have appreciated the law in this regard. If only two invalid votes could befound to be valid during the recounting of invalid votes then was everypossibility that recounting of valid votes would have changed the result of theelections. The reason given for not doing to order recounting is not valid. Thelearned Presiding Officer of the Tribunal also failed to appreciate that thepetitioner‑ had in paragraph 8 of the Election Petition mentioned corruptpractices. The petitioners deserved to be provided with a chance to adduceevidence in order to substantiate their case which was not provided to them bythe learned Tribunal.”

7. The learned Advocate SupremeCourt could not point out any jurisdictional error, illegality or infirmity inthe judgment impugned persuading us to grant leave to appeal. Besides that noquestion of law or public importance is involved in the matter. The petitionbeing meritless is dismissed and leave declined.

M.H./M‑6/S Petitiondismissed.