1. AHMED KHAN LASHARI, J.---The concise facts giving rise to file this Constitutional petition are that the President of Islamic Republic of Pakistan on 3rd November, 2004 made the following amendment to the Legal Practitioner and Bar Councils Act, 1973 (herein after called as the Act, 1973) whereby the number of members of Provincial Bar Council to be elected from the Provinces, were increased:-- "Section 2 in the Legal Practitioners and Bar Councils Act, 1973.
(0) "Voter" means
(i) in relation to election to a Provincial Bar Councils, an advocate whose name for the time being appears on the roll of group of districts and to whom an identity card has been issued by a Provincial Bar Council and who is not in arrears of dues of the Provincial Bar Council for a period exceeding six months; and Amendment of section 5, Act XXXV of 1973---
(2) The number of members to be elected to following Provincial Bar Councils shall be as hereinafter provided, namely:--
(a) Punjab Bar Council 75 Sindh Bar Council 32 N.-W.F.P. Bar Council 28 Balochistan Bar Council 8 Amendment of section 5-A, Act XXXV of 1973.--In clause (b) for the word "seven" the word "ten" shall be substituted. Schedule section 5-2 Balochistan Bar Council: Group of Districts -1.
2. Name of District Seats Quetta +Chagai+Noshki+ Pishin + Killa Abdullah 4 Group of District - II Name of District Seats Zhob + Loralai + Killa Saifullha+ Ziarat + Musakhel +Barkhan 1 Group of Districts -III Name of District Seats Kech+Panjgoor +Gawadar +Lasbella Awaran 1 Group of Districts -1V Name of District Seats Kalat + Khuzdar +Mastung + Kharan + Awaran 1 Group of Districts -V Name of District Seats Sibi+Bolan+Nasirabad+Jafarabad+Jhal Magsi+ Kohlu+Dera Bugti 1 The Advocate-General being Chairman of the Balochistan Bar Council in exercise of powers conferred under the Act of 1973 and Bar Council Rules 1976 (hereinafter called as the Rules, 1976) announced the schedule on 23-11-2004 for the Bar Council election and day of poll was, declared 18-12-2004. The .Schedule was subsequently changed vide Notification No,879/BBC dated 29-11- 2004 and the date for filing of nomination papers was extended without disturbing the date fixed for the poll. The petitioner Javed Iqbal and respondent No,2 Mr. Amanullah Kanrani Advocates filed their nomination papers for the seat of Bar Council Sibi and District Nasirabad Division (Group-V).
3. During scrutiny on the objection of respondent No,2 the nomination papers of petitioner No,1 were rejected vide order dated 4-12-2004 on the ground that the proposer petitioner No,2 Mushtaq Ahmad ' was not enrolled as an Advocate practicing in the area defined in Group-V. The Ex Officio Chairman/Retuning Officer vide order dated 4-12-2004 under Rule 10(1) of Rules, 1976 declared the respondent No,2 as elected un-opposed for the seat. The petitioners challenged the order of Returning Officer in C.P.No,547/04, this Court vide short order dated 9-12-2004, detailed order dated 16-12-2004 remanded the matter to the Chairman to appear before him on 10-12-2004 for disposal of the case after giving opportunity of hearing to the parties. The Chairman/Returning Officer after hearing the parties vide order dated 10-12-2004 again rejected the nomination papers as the name of proposer did not find place in the roll of electoral college prepared and published by the Balochistan Bar Council for Sibi and Nasirabad Division. The petitioners once again approached this Court in C.P No, 3/05, the contents of the petition and player clause indicate the rejection order dated 10-12-2004 was not made impugned and the following relief was sought:- "(a) That the Retuning Officer may be directed to pass orders on nomination papers of the petitioner as directed by this Hon'able Court in C.P No, /04 as the notification dated 11-12-2004 issued by the Returning Officer is in respect of postponement of election only.
(b) That the Retuning Officer be directed to hold the polling of the election in question on a specific date, which may be fixed by this Hon'able Court.
(c) Any other order as may be deemed fit and appropriate in the circumstances of the case may also be awarded in the interest of justice." The respondent No,2 filed counter-affidavit and challenged maintainability of the petition on legal ground as well as on Ground "E", specifically stating therein that the petitioners have not challenged the rejection order dated 10-12-2004 in Constitutional Petition, the petitioners despite of knowledge did not request for amendment of the petition to challenge the rejection order. The matter for the second time was remanded to the Returning Officer for decision after hearing the parties. The Retuning Officer on 23-4-2005 passed an order indicating the Nomination Papers of petitioner No,1 already rejected on 10-12-2004, the said order was not made impugned in C.P No,3 of 2005 nor any such direction was given to him as such order dated 10-12-2004 attained finality. Messrs H. Shakeel Ahmed, Ali Ahmed Khurd and Muhammad Qahir Shah Advocate learned counsel for petitioners contended that petitioner No,2 is in possession computerized Identity Card showing he is residing at Sibi. The Balochistan Bar Council has issued him a card which is sufficient proof that he is practicing at Sibi and was competent to propose the petitioner No,1. The learned counsel next contended that the separate roll of electoral college Sibi and District Nasirabad was never published under the provided rules and if any such list has been prepared by the Bar Council it contains errors, omissions on account of which the right of vote of petitioner No,2 cannot be refranchised. It was also argued that the order dated 10-12-2004 was not communicated to the petitioners and was passed without their knowledge. The learned counsel in support of their arguments relied on the case-law reported in PLD 1993 Quetta 42. Mr. Amanullah Kanrani, Advocate respondent No,2 argued that the electoral list has been prepared and published by the Chairman Bar Council under Rule-4 of Rules, 1976 vide Notification No,876/BBC dated 10-11-2004. The objections and applications for rectification and omissions were invited till 10-11-2004. The petitioner No,2 on 10-12-2004 filed an application seeking his name be included in the roll of electoral college published for Sibi and Nasirabad Division which proves the name of proposer at the time of filling of nomination papers of petitioner No,1 was not existing in the concerned electoral roll. It was also argued that the writ petition was not maintainable as disputed question of fact was involved and the Election Tribunal had the exclusive jurisdiction to adjudicate upon the matter. He in support of his arguments placed reliance on the judgments reported in 1998 SCMR 1535,PLD 1982 Quetta 126, 129, PLD 1989 Karachi 53 and PLD 1984 Quetta 117.
4. We have heard learned counsel for the parties and have gone through the record annexed with the petition which indicate the petitioner No,1 filed his nomination papers to contest the seat of Bar Council from Sibi Nasirabad Division. The respondent No,2 filed objections against his proposer being not enlisted in the concerned roll of electoral college. The respondent No,1 after hearing the parties maintained the objections and rejected the nomination papers. The .Returning Officer under Rule 3 of Rule 1976 published the list of Sibi District consisting upon three pages wherein the name of petitioner No,2 was not included therein, rather his name was mentioned at S. No,85 of the list of Quetta Pishin District, the certificate dated 9-12-2004 issued by President Balochistan Bar Association Sibi annexed with the petition support the contention of respondent No,2. It may be noted that petitioner No,2 on 10-12-2004 filed an application seeking correction of the list after rejection of the nomination papers.
5. The Returning Officer enjoys the powers to hold summary enquiry with regard to deciding objections but this power is also subject to limitations, he shall not enquire into the correctness or validity of any entry in electoral roll, the scrutiny which the Returning Officer has to do in this connection is to be based on the entries in electoral roll which for such purpose would be final and he cannot go beyond it. The appropriate course for the rejection of nomination papers of a candidate on the ground his being not resident of said area and having utilized his own vote is to approach the Election Tribunal. We to support our view placed reliance on the judgments reported in PLD 1989 Kar. 53 and PLD 1984 Quetta-117. The operative portion of the judgment reported in PLD 1984 Quetta 117 is reproduced herein below for ready reference:- "The petitioner could file an election petition and could contend therein he is a resident of Ward 1 of the Quetta Cantonment and that he was entitled to contest the election from that Ward and did not suffer from any disqualification and that the rejection of his nomination paper was illegal and improper; that the result of the election owing to such improper rejection has materially affected the result of the election. In the proceedings before the Election Tribunal (District Judge, Quetta) there could have been a full trial and evidence could have been taken and even points of fact could be canvassed and determined which the petitioner had not established before the Returning Officer or the Appellate Authority as the proceedings before them were of summary nature. The powers of the District Judge while hearing the election petition are definitely wider than those of the Returning Officer or the Appellate Authority. The preliminary objection raised on behalf of the respondents that in the instant case there was a remedy of filing election petition before the District Judge under Rule 66 of the Cantonment (Elections and Election Petitions ) Rules. 1979 is sustained. Applying the law as summarized above it follows that the petitioner in the present case has not followed the right procedure. It is true that he lost in appeal but he did not lose all his remedies. Instead of filing the election petition he rushed to the High Court but was unable to get the election stopped." We have gone through the judgment referred by learned counsel for petitioners wherein it has been held that Constitutional jurisdiction under Article 199 cannot appropriately be invoked for making probe into controversial facts based upon two conflicting documents and the equitable relief sought for resulting into disfranchising the candidate cannot be allowed to be availed. The Bachelor's degree of respondent in the aforesaid case had become doubtful and it was not possible for the Election Tribunal to reach to a conclusion without holding an enquiry and providing opportunity to the parties to prove their respective contentions through evidence, whereas in this case the roll of electoral college was published, objections and applications for correction and omissions were invited but the petitioner No,2 after expiry of the said period filed an application seeking correction of the list as his name was appearing in the electoral list of Quetta Pishin Division. The petitioners have disputed the said list and the rejection order passed by Retuning Officer on flimsy grounds. As such, we are not inclined to enter into disputed and factual controversy, as it requires detailed enquiry and recording of evidence by the Election Tribunal. For the forgoing reasons, we abstain to exercise the powers under Article 199 of the Constitution in this case. The petition being devoid of any merit is dismissed in limine. The parties are directed to bear their own costs.