' [9-12.1979].-It is contended that the nomination paper of respondent No, 1 was accepted by the Returning Officer despite objection of the petition that age was less than 25 years. The petition had filed Writ Petition No, 5473/79, which came up before me and the petitioner was directed to exhaust his remedies before the Election Tribunal.
2. The petitioner filed an election petition which has been disposed of by the impugned order of the Election Tribunal, Multan, dated 29-11-1979, on the ground that the Election Tribunal has no jurisdiction to declare the election of the returned candidate to be void on the ground that he was less than 25 years of age because of the provisions of rule 15(3)(d)(iii) of the Election Rules, 1979. On the face of it, this finding is contrary to the provisions of rule 13(i)(b) of Election Petition Rules, 1979.
Admit. Notice to respondents.
3. The point involved is short and the petition to be fixed for hearing in February, 1980.
[13-2-19803.-The petitioner was a contesting candidate for election to the Union Council No, 172, Tehsil Lodhran. He was opposed by respondent No, 2 who was declared elected.
2. The petitioner had earlier filed Writ Petition No, 5473/79, questioning the membership of respondent No, 2 on the ground that he was less than 20 years of age on 12-9-1979, which was the last date fixed for the filing of nomination papers, and as such was disqualified under section 20 of the Punjab Local Government Ordinance VI of 1979 (hereinafter referred to as Ordinance VI of 1979).
That petition was rejected in limine on 6-10-1979 and the petitioner was directed to first avail of his remedy before the Election Tribunal.
3. Accordingly, on 17-10-1979, the petitioner filed an Election Petition before the Election Tribunal/Deputy Commissioner, Multan, in which inter alia, it was contended that the election of respondent No, 2 be set aside on the grounds that two non-Muslims had cast their votes in favour of respondent 2, that the Presiding Officer did not count three votes polled in favour of the petitioner, and that respondent No, 2 was not qualified to be elected as had not attained the age of 25 years on 12-9-1979. The Election Petition was rejected by the Election Tribunal by its order announced on 29-11-1979, which is impugned by means of the present petition.
4. Notice was issued to the respondent and Hafiz Muhammad Yousaf, Advocate, has entered appearance on behalf of the contesting respondent No, 2, and has filed a written statement.
5. In the view of the Election Tribunal, by virtue of the clear provisions of rule 15(iii)(d), Punjab Local Councils (Election) Rules, 1979 "a presumption of authenticity is attached to the Electoral Roll", and that respondent No, 2 is admittedly shown to be 26 years of age in the Electoral Roll. The Tribunal in this view of the law, dismissed the Election Petition. It is significant that the Election Tribunal took no notice whatsoever of the other contentions raised in the Petition.
6. In accordance with section 18 of Ordinance VI of 1979, "Electoral Rolls prepared for the election of members of Provincial Assembly as amended from time to time and adopted for a local council shall be the Electoral Rolls for election to local councils". By Notification No, S. O. (L)-2-5/79 issued by the Government on September 1, 1979, "the Electoral Rolls prepared by the Pakistan Election Commission for the elections of members of the Provincial Assembly", were adopted for the purposes of elections to the local councils in the Punjab.
7.
7. According to section 20 of Ordinance VI of 1979, "any person who has attained the age of twenty- five years on the last day fixed for filing the nomination papers shall be qualified to be a candidate for election to an electoral unit of a local council". Reference can also be made to rule 15 of the Punjab Local Councils (Election) Rules, 1979, which relates to the powers of the Returning Officer in relation to the scrutiny of the nomination papers, and according to which the Returning Officer may reject the nomination paper if he is satisfied that the candidate is not qualified to be elected as a member, and it is further provided by the third proviso to sub-rule (3) of this rule, that the Returning Officer shall not enquire into the correctness of validity of any entry in the electoral rolls. There is no provision either in Ordinance VI of 1979 or in the Punjab Local Councils (Election Rules), 1979 or the Punjab Local Councils (Election Petition) Rules, 1979, to the effect that the entries in the Electoral Rolls are final and binding for the purposes of determining the statutory qualifications of a candidate for election to, or a member, of a Local Council. In this petition the power of a Returning Officer to reject the nomination papers on the ground of the candidate nominated being less than twenty-five years of age, is not in issue. The question raised in this petition pertains to the powers and jurisdiction of an Election Tribunal. In this context a reference to rule 13 of the Punjab Local Councils (Election Petition) Rules, 1979, shows that an Election Tribunal is required to declare the election of the returned candidate to be void if it is satisfied that, "the returned candidate was not on the nomination day qualified for or was disqualified from, being elected as a member," of a local council.
8. An examination of the above provisions of law and the rules, leads to the conclusion that the provisions of rule 13 of the Punjab Local Council (Election) Rules, 1979, are relative only to the jurisdiction and powers of the Returning Officer at the time of scrutiny of nomination papers. They cannot be interpreted so as to deprive an Election Tribunal of its jurisdiction under rule 13 aforereferred, to determine whether a candidate was qualified for being elected as a member of the local council, on the nomination day. It is, indeed, the right of every contesting candidate to challenge the qualifications of the returned candidate and this can only be done after the election has taken place. Then it is the duty of the Election Tribunal to determine the objection raised before it by means of an Election Petition. Where an Election Petition is presented on the ground that the returned candidate is not qualified to be a member, the Election Tribunal has to determine the issue of qualification or disqualification, and for this purpose the entries in the Electoral Rolls cannot and indeed never have been held to be binding on the, Election Tribunal.
9. In this context it would be of benefit to advert to the judicial pronouncements of the superior Courts in this regard.
10. Reference may first be made to a judgment of the Supreme Court of Pakistan in Siraj-ul-Islam Khan v. Ahsan Ali Mondal (1), where the question before the Court was whether the Tribunal hearing an election petition in relation to a member of the Electoral College constituted under the Electoral College Act (IV of 1964), was competent to inquire as to the age of the person. It had been urged that the Tribunal could not go behind the entry in the Electoral Rolls. Rejecting this contention it was observed by the Court that- "The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. In this view the right of a person whose name appears on the roll to vote cannot be questioned. This does not, however, mean
(1) PLD 1969 SC 5 that his right to be a candidate cannot be challenged on the ground that he does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing as the other entries."
11. In Umar Draz Khan v. Muhammad Yousaf (1), which was an appeal from a judgment of this Court in Muhammad Yousaf v. Malik Karam Dad Khan (2), the age of the appellant who was elected, was shown as to be twenty-five years in the Electoral Rolls, and the Controlling Authority had held that he had no jurisdiction to go into the question of age in view of the entry in the Electoral Rolls. The Supreme Court observed that :- "There can be no doubt that in an Election Petition the Tribunal is competent to enquire if the successful candidate possesses the qualifications as they are laid down in the Constitution or not."
' The above judgment of the Supreme Court was referred to and noted in a judgment of the West Pakistan High Court in the case of Muhammad Hussain v. Muhammad Irshad Khan (3), where it was held that "the statutory disqualification of a candidate regarding age at the time of his election would be sufficient reason for the Controlling Authority to interfere.
12. In Imtiaz Ali v. Ghulam Muhammad Butt (4), the Supreme Court observed that :- "The register of voters is conclusive on a Returning Officer, as well as on any Tribunal which is to enquire in the election, unless there be some personal disqualification."
' It follows, therefore, that the rolls cannot be vested finality so as to exclude the jurisdiction of an Election Tribunal to enquire into personal disqualification, and therefore, it further follows that when the challenge is on the ground that the candidate was not qualified on account of his age, it is the duty of the Election Tribunal to adjudicate the issue notwithstanding the entries in the Electoral Rolls.
13. In Abdur Rashid v. Khawaja Mahmood Sadiq (5) where the election of the returned candidate was challenged on the ground that he was below the age of 25 and the Election Tribunal had proceeded to determine the issue notwithstanding the entries in the Electoral Roll to the contrary, the Court observed that:- "The entry regarding the age of the elector in the Electoral Roll may become final to qualify him as a voter, for which he has to be not less than 21 years of age. But it is not so on the point of his qualification to be elected for which he has to be not less than 25 years of age Election Tribunal has to come to its own findings on its own appraisement of the date before it."
14. In Abdul Ghafoor v. Noor Muhammad (6), where the Election Tribunal had upheld the objection that on the date of nomination the returned candidate was not of twenty-five years of age, the Court rejected the Writ
(1) 1968 SC MR 880 (2) PLD 1968 Lah. 30
(3) PLD 1969 Lah. 40 (4) PLD 1958 SC (Pak.) 228
(5) PLD 1966 Lah. 216 (6) PLD 1966 Lah. 423 ' Petition questioning the jurisdiction of the Election Tribunal to go behind the entries in the Electoral Rolls, and held that :- "As the objection with regard to age goes to the root of the personal disqualification of a candidate, the Election Tribunal can enquire into it and go behind the entries of the Electoral Roll dispute of age in the present case being essentially an 'election dispute', it will not be reasonable to hold that it has been excluded from the jurisdiction of the Election Tribunal, the jurisdiction of the Election Tribunal is very wide and it can definitely go into the question of disqualification of a candidate on the ground of age, notwithstanding the entry of age in the Electoral Roll."
15, In Ahmad v. Mir Muhammad Khan (1), where the objection that returned candiate was below the age of 25, and therefore, not qualified to contest the election, had been upheld by the Election Tribunal, the Court held that entries in the Electoral Rolls are only for the purposes of ascertaining whether a person is ,eligible to exercise the right of vote, for which purpose the material question is whether the person is above 21 years of age or not, and that the determination of the exact age of a voter is not contemplated by the law dealing with the preparation of Electoral Rolls. The Court further observed that :- "The finality attaching to the Electoral Roll cannot be extended beyond the object and the purpose for which the Electoral Roll is prepared, namely, to ascertain whether the person concerned has the right to vote. In other words, the entry of age appearing in the Electoral Roll, is not final in so far as the question of candidature for membership of the Electoral College is concerned. The Election Tribunal was, therefore, within its rights to take evidence on the question of age irrespective of the entry appearing in the Electoral Roll."
16. Reference may finally he made to a judgment of Justice Dr. Nasim Hasan Shah, Member, Election Commission of Pakistan, in the case of Faisal Saleh Hayat v. The Returning Officer (2), where it was observed that :- "The ascertainment of the qualifying age of the candidate is also a constitutional duty. The entry of age in the Electoral Roll, is, therefore, not sacrosanct and is very much open to scrutiny by the Returning Officer as also before a forum where the qualifying age of the candidate is called in question."
17. The above judgments indicate the consistent view of the superior Courts with regard to the finality to be attached to the entry regarding age in the Electoral Rolls, where the age of a returned candidate is called in question before the Election Tribunal. The provisions regarding the finality to be attached to an entry in the Electoral Rolls, in the laws interpreted in the pronouncements aforereferred, are pari materia to those contained in the Electoral Rolls Act, 1974 and the Punjab Local Government Ordinance, VI of 1979, and its Rules.
18. In view of the above, it is clear beyond any shadow of doubt that the Election Tribunal was amiss in observing that it did not have the jurisdiction
(1) PLD 1966 Lah. 927 (2) PLD 1977 Jour. 295 to go behind the entry regarding the age of the respondent, as contained in the Electoral Rolls.
Indeed, while adjudicating an Election Petition in which the issue pertains to the age of a returned candidate, it is the duty of the Election Tribunal to determine the same on the basis of the evidence laid before it, and to decide whether the returned candidate was or was not qualified on account of his age to be a candidate for election to the Union Council.
19. Learned counsel for the respondent argued that it would be futile to refer the case back to the Election Tribunal for it could be established on the basis of the documents filed with the written statement, which comprise of extract from entries in the Electoral Rolls of 1974 and 1979, the respondent's Nikahnama and a certificate that respondent No, 2 was 26 years of age. On the other hand, learned counsel for the petitioner states that he had produced before the Election Tribunal, the school leaving certificate of respondent No, 2 as well as a copy of an application in the hand of the father of respondent No, 2, from which it could be established that he was less than 25 years of age on 12-9-1979. It is not for me in the exercise of the constitutional jurisdiction vested in this Court, to determine such disputed questions of fact. In the first instance, such disputed questions have to be determined by the Special Tribunal authorized in law with such jurisdiction, and it is apparent that in this particular case, the Election Tribunal has totally refused to exercise the jurisdiction in it to do so, for reasons which are not sustainable in law.
20. Another argument of the learned counsel for the petitioner which has much force, is that the Election Tribunal has not adverted to the other grounds on the basis of which the election of respondent No, 2 was sought to be got set aside. Factually, this is correct. It was the duty of the Election Tribunal to notice all the grounds on which the election of respondent No, 2 was sought to be got set aside, and to give its findings on all the material issues raised. This has not been done.
21. Therefore, the impugned order dated 29-11-1979 dismissing the Election Petition of Ghulam Rasul, petitioner, is declared to be without lawful authority and of no legal effect. Respondent No, 1 shall hear and dispose of the Election Petition in accordance with law.
22. In the circumstances of the case, there will be no orders as to costs.