1. ZIA PERWEZ, J. --- These Petitions No. D-880 &. 881 of 2006 are directed against the order dated 10.11.2006 passed the learned District Returning Officer, Sukkur in Election Appeals Nos. 2 and 3 of 2006 respectively hereby the aforesaid Appeals filed by the Objectors/Appellants namely Mst. Jam Zaidi alias Jamul and Mst. Arbab Khatoon were allowed.
2. Succinctly the facts which are relevant for the purpose of disposal of these two petitions are that petitioners claim to be resident of UC-35 Panoakil City within the meanings of the Sindh Local Government Ordinance read with guidelines issued by the Election Commission of Pakistan on 12.12.2003 in pursuance to the provision of Section 157(1)(c) of the Sindh Local Government Ordinance, 2001 Appeals were preferred on the grained that name of the petitioners appears in the voter list of UC-35 as well as UC36 (hereinafter referred to as aforesaid Union Councils). The appeals were allowed by the District Returning Officer, Sukkur vide impugned orders in both the petitions which are subject-matter of these petitions.
3. The contention of M/s. Qurban A.I Malano and Mr. Akhund learned counsel for the petitioners are that petitioners are admittedly listed voters in the electoral roll of aforesaid Union Councils.
4. However, such an entry in the name of the petitioners in two electoral rolls do not operate as a bar to their participation and contest of the elections. In support of their contentions they have placed reliance on Section 152 of the Sindh Local Government Ordinance, 2001 providing for the qualification of the candidates and elected members.
5. The grounds for rejection of papers are also provided under 14(3) of Sindh Local Government Election Rules, 2005. Whereas the qualification for candidates contesting elections are provided under Section 14 of the Sindh Local Government Elections Ordinance, 2001. Referring to the above they have contended that the scope of conduct of the elections is regulated by the aforesaid Provisions which do not provide for any bar in .Case of 'entry of name in two different rolls. In fact such eventuality has been taken care specifically under the Provision of Section 14 of Sindh Local Government Ordinance and entry of the name in more than one list does not create a ground for disqualification. In support of their contentions reliance is placed on the case of Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others (1984 SCMR 537) and the case of Shahid Nabi Malik and another v. Chief Election Commissioner; Islamabad and 7 others. (PLD 1997 SC 32). In addition to unreported Judgment of Division Bench of this Court in COD-253 of 2005 Re-Muhammad Imran and another v. Arif Khan and others.
6. Mr. A.R. Farodque Pirzada learned DAG appearing for the Respondent No. 2 has contended that there is no bar on participation in the election by a candidate whose name entered in the voter list of more than one UCs. In event of such an entry of the name of a candidate in more than one UC the provision of Section 157(2) is attracted which provides adequate protection in such eventuality.
7. Mr. G.D. Shahani learned Additional A.G. Has also supported the contention raised by Mr. A.R.
8. Farooque Pirzada learned DAG.
9. Mr. Mukesh Kumar G. Krara learned counsel for the Respondent No. 4 was allowed to produce certified copies of the documents which are in his possession in support of his contention due to the nature of the proceedings and shortage of time and in view of the fact the election is due to be held on 22nd November, 2006. Learned counsel for the Respondent No. 4 referred to the nomination forms of Jalaluddin the father and husband of the petitioners respectively who has filed his nomination papers as a candidate seeking elections in UC 36. Referring to the Provisions of Section 152 of Sindh Local Government Ordinance, 2001 learned counsel has contended that it is a statutory condition that the candidate should be enrolled as a voter in the electoral roll of the relevant area or ward, but in the instant case there are two Union Councils viz. 35 and 36 where the petitioners are actually residing alongwith the aforesaid Jalaluddin. Learned counsel proceeded to argue the matter in support of the impugned order on the ground that the definition of the electoral roll is restricted to the definition under Rule 2(vii) of the Sindh Local Government Elections Rules, 2005 and is subject to such condition as Chief Election Commissioner may speciy in exercise of powers conferred under Section 157(1)(c) of Sindh Local Government Ordinance, 2001, in this regard he proceeded to argue that the conditions which provided at condition No. 9 according to which the petitioner a're not resident of U.C. And being hit by such a condition the petitioners neither qualified voters nor they are candidates entitled them to contest the election for the UC-35 Panoakil.
10. Learned Counsel has also referred to the word `Mehran' appearing in the nomination form after UC-35 and contended that Mehran' is the name of UC-36 while the name of UC-35 is. City Panoakil.
11. In support of his contention he has placed reliance on the case of Hamida Begum v. Returning Officer and others (2001 CLC 1253).
12. Before proceedings with the contention of learned counsel we would like to reproduce the relevant provisions of law calling for examination in this case.
13. The electoral roll is defined under Rule 2(vii) which reads as "(vii) electoral roll prepared under Section 157." scrutiny is carried under Rule 14(3) for rejection of the nomination papers which reads as follows:-- -
(3) The Returning Officer, may, either suo mote or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that:--- the candidate is not qualified to be elected as a member; The proposer or the seconder is not qualified to subscribe to the nomination paper;
(iii) Any provision of rule 12 or rule 1.3 has not been complied with: or v ) The signature or thumb impression of the proposer or the seconder is not genuine.
14. Provided that in case of rejection of the nomination of either a Nazim or a Naib Nazim as joint candidates, the nomination as a whole for both the joint candidates shall stand rejected.
15. The guidelines issued by the Election Commissioner of Pakistan at the time of revision of Election Rules, 2004 in pursuance of exercise of power under Section 157(1)(c) relevant for the disposal of these petitions are clauses Nos. 9 and 10.
16. Perusal of the aforesaid Section clearly establishes that the electoral roll shall not be invalid by reasons of any erroneous description therein of any person listed or of an omission of the name of any person entitled to be enrolled or of inclusion of the name of any person not so entitled.
17. With such, statutory protection under Section 157(2) of the said Ordinance we now proceed to examine the conditions issued by the Election Commission. The question of residence is dealt with under the condition No. 9 as cited above. It specifically provides that a person shall be entitled to be enrolled as a voter in an electoral roll area or is .Deemed under Section 7 of the Electoral. Act, 1974 to be resident in the electoral area in which he desires to be enrolled as a voter.
18. The effect of the word deemed'. Has further been explained in Condition No. 10. A bare reading of this condition shows that the actual and physical residence of person is not a condition set-forth for being a resident of the Ward or Area. In fact under this explanation mere ownership, even possession of dwelling house or other property in area is sufficient to meet the criteria. Further elaboration has been made that neither specific period of stay in the electoral roll area is prescribed nor physical residence of voter in the electoral roll area on the date of registration would be necessary. In addition to the above it has also been clarified in condition No. 11 that a person owning or possession a shop and resides in the shop would qualify for being enlisted as a voter for that Ward. The word 'deem' as described in the Oxford Dictionary as is under:--- "Deem!Diim/u.Tr. Formal regard, consider, judgment it my duty. Was deemed sufficient).
19. The effect of deeming clause was examined by the Honourable Supreme Court of Pakistan in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 06 SC 602) (Supra) as under:- The following are the effects of a deeming clause:---
(i) When a statue contemplates that a state of affairs should be deemed to have existed. It clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
(ii) Where a statute says that .You must imagine the state of affairs, it does not say that having done so you must cause of permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
(iii) At the same time, it cannot be denied that the Court has to determine the limits within which and purposes for which the legislature has created the fictions.
(iv) When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.
20. By the use of word 'deemed' in the aforesaid Section the intention of the legislature is that for purposes of electoral rolls the fact of actual residence of the vote or the candidate in the area is not required if specified conditions are otherwise fulfilled. In the instant case the remaining conditions have been fulfilled and only ground on which the impugned order is based is not sustainable.
21. "It was contended by the learned counsel for the petitioners that since the name of the respondent appeared on the electoral rolls of more than one electoral area the same amounted to disqualification as provided in Section 25 of the Electoral Rolls Act (XXI of 1974) read with clause (g) of Section 15-B of the Cantonments Act, 1924.
22. Section 25 of the Electoral Rolls Act is as under:- "25 No person to be enrolled more than one or in more than one electoral area. No persons shall be enrolled:---
(a) on the Electoral Roll for any electoral area more than one; or
(b) on the Electoral Rolls for more than one electoral area.
23. The above section bars the enrolment of a person more than once or in more than one electoral area only. The consequence of double enrolment has not been made a disqualification under this .Section or in the Act itself. Section 15-B of the Cantonments Act, 1974 relates to qualification and disqualification of members. While qualifications are provided in sub-section (1) of the said section.
24. The disqualification are enumerated in clauses (a) to (g) of subsection (2) thereof. According to the learned counsel for the petitioner the case of the respondent was covered by the' provision contained in clause (g) of sub-section (2) of Section 15-B which is as under:--- "(2) a person shall be disqualified for being elected as ; and for being a member of a Board if he:-- -
(g) is for the time being disqualified for the membership of an elective body under any law for the time being in force.
25. For the application of clause (g) above, the disqualification must be such as provided under any law for the time being in force, and double enrolment having not been specifically made a disqualification under the Electoral Rolls Act, the provision contained in the clause is not attracted.
26. Besides, as found by the learned High Court, the Returning Officer had no jurisdiction to consider any objection with regard to nomination of a candidate which related to his registration in the electoral roll in view of the bar contained in the proviso to rule 12 of the Cantonments (Election and Election Petition) Rules, , 1979. No other contention was raised.
27. "Nowhere is it mentioned in the said section that a candidate would be automatically disqualified if his name appears in more than one electoral list.
28. "In the present case admittedly the respondents Nos. 1 and 2 are not contesting the elections from dual constituencies but only from UC-3 and their case is that they both were previously residing in UC-2 and 4 respectively and had moved appropriate applications much before the lists were updated in 2005 for inclusion of their names in UC-3 in accordance with Section 11 of the Election Rolls Act. The short question therefore would be whether this was done validly or not i.e. In accordance with the provisions of such section. In our opinion such an enquiry cannot form the subject-matter of a scrutiny before the Returning Officer. In this regard, it would be seen that as per the law laid down by the Supreme Court in Bachal Shah v. Asad-Sikandar (PLD 1989 Karachi 53) at the scrutiny stage only a summary enquiry is to be carried out by the Returning Officer which does not include an enquiry into the correctness or validity of any entry in the elctroal roll. Hence the Returning Officer is bound by the entries in.The same which for such scrutiny would be final and the proper forum to go into the correctness Or .Otherwise of the electoral roll would be the Election Tribunal.
29. Above are the reasons of our short order dated 16.11.2006 by which we had allowed these two Petitions and set aside the impugned orders of learned District Returning Officer, Sukku.. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.