1. ' ANWARUL HAQ, C. J.-After hearing the learned counsel for the parties we have decided to convert this petition into an appeal, and dispose it of accordingly.
2. ' Appellant Riaz Mahmood Khan Mazari and respondent Mureed Hussain Shah filed nomination papers for election to the District Council, Dera Ghazi Khan from electoral unit No,
5. The last date for filing these papers was 12-9-1979, and they were scrutinised on the 14th of September, 1979. The nomination papers of the appellant were rejected by the Returning Officer on the ground that he was below 25 years of age on the 12th of September, 1979, which was the relevant date in terms of section 20 of the Punjab Local Government Ordinance, 1979. In coming to this conclusion the Returning Officer relied on the age of the appellant as entered in two electoral rolls, one relating to Mauza Rojhan in which he was shown to be 23 years of age and the other relating to Mauza Katcha Paru Shah in which he was shown to be 24 years of age.
3. ' The appellant thereupon filed two applications under section 18 of the Electoral Rolls Act, 1974, before the Registration Officer, one praying for the deletion of his name from the electoral roll of Mauza Rojhan, and second for the correction of his age as entered in electoral roll relating to Mauza Katcha Paru Shah. Both these applications were allowed by the Ragistration Officer on the 16th September, 1979, and in the electoral roll for Mauza Katcha Paru Shah the appellant's age was corrected so as to read as 25 years on 1-1-1979.
4. ' Armed with this amended entry in the electoral roll, the appellant then filed an appeal under rule 16 of the Punjab Local Council Election Petitions) Rules, 1979, which was accepted by the Deputy Commissioner of the district on the 18th of September, 1979, in his capacity as the appellate authority. While enumerating certain pieces of evidence sought to be relied upon by the contending parties on the question of the appellant's age, the appellate authority took the view that as the age of the appellant Riaz Mahmood Khan Mazari had been corrected in the relevant electoral roll, and under the Punjab Local Government Ordinance, 1979, he could not question the corrected entry, he was bound to hold that the appellant was eligible to take part in the election, On this view of the matter the appellant was allowed to contest the election, for which the polling was scheduled to be held on the 25th of September, 1979.
5. ' Aggrieved by the appellate order of the Deputy Commissioner, sera Chazi Khan, the respondent filed a writ petition, which was accepted by a learned Judge of the Lahore High Court by his order dated the 23rd of September, 1979. He took the view that for determining the eligibility of a candidate for contesting election to a Local Council the position which obtained in the electoral rolls on the 12th of September, 1979, would be the determining factor, and any subsequent correction of the entry of age by the Registration Officer could not operate retrospectively to make the appellant eligible and that, in any case, the Registration Officer had not conducted the necessary inquiry as envisaged under section 18(2) of the Electoral Rolls Act of 1974. He further observed that there was nothing on the record to indicate that the entries with regard to the appellant's age in the two electoral rolls, as they existed on the 12th of September, 1979, contained any obvious error or defect which could be corrected by the Registration Officer. As a result he came to the conclusion that the appellant's nomination papers had been rightly rejected by the Returning Officer, and the appellate authority could not take into consideration the subsequent correction made in the electoral. Rolls so as to validate the appellant's nomination papers.
6. ' This order of the High Court has been challenged by the appellant before us mainly on the grounds that the writ petition filed by the respondent was not maintainable as it concerned a disputed question of fact which had been decided by the appellate authority in favour of the appellant ; that since filing the present petition the appellant had been declared elected after taking part in the election held on the 25th of September, 1979, on the basis of an interim order obtained by him from this Court on the 24th of September, 1979, and in the circumstances, the only remedy available to the respondent was to file an election petition in accordance with the Punjab Local Councils (Election Petitions) Rules, 1979 ; and that, in any case the High Court was in error in thinking that for the purpose of eligibility for contesting election to the Local Councils the entry of age as recorded in the electoral roll was binding on the Returning Officer and the appellate authority.
7. ' On behalf of the respondent, Mr. Mumtaz Husain submits that it is correct that in accordance with the law declared in the cases reported as Muhammad Tufail v. Muhammad Salim and others Wand Sirajul Islam Khan v. Ahsan Ali Mondal and others (2), the entry of age in the electoral roll is not binding or conclusive for the purpose of determining the eligibility of a candidate for contesting election to a Local Council. And to that extent the appellate authority was in error in thinking that the amended entry was binding on him. He argues further that there was ample evidence to show that the appellant was below 25 years of age on the last date fixed for filing the nomination papers in this case, namely, the 12th of September, 1979, and for that reason the Returning Officer was justified in rejecting his nomination papers.He submits that the Returning Officer had taken all these facts into account, besides the two differing entries appearing in the two electoral rolls which were in existence on the nomination date, and which should not have been unilaterally amended by the Registration Officer on the 16th of September, 1979. In support of these submissions, Mr. Mumtaz Hussain has drawn our attention to several pieces of evidence on the basis of which he considers that the appellant could conclusively be shown to be below 25 years of age on the nomination day. Finally, Mr. Mumtaz Hussain contends that the interim order was obtained by the appellant from this Court behind the back of the respondent, with the result that the respondent did not take any steps to take part in the polling which was held on the 25th of September, 1979, as he had already been declared elected unopposed on the basis of the order made by the High Court in his favour ; and, accordingly, it is a fit case where the question of the appellant's age should be allowed to be investigated by the proper forum.
8. After hearing the learned counsel for the parties, we are of the view that the order made by the learned Judge in the High Court cannot be sustained, as it clearly proceeds on an erroneous view of the law as to the finality attaching to the entry of age in the electoral roll for the purpose of determining the eligibility of a candidate to stand for election to a Local Council. In the case of Muhammad Tufail, referred to above, it was held by majority that "the finality which attaches to the entries in the electoral roll must be confined to the object and the purpose for which the electoral roll is prepared, namely, to confer the right to vote on the basis of adult franchise as contained in Article 157 of the Constitution the entry of age appearing in the electoral roll would obviously be prima fade evidence in that behalf, but it cannot be held that finality attaches to it for the.
(1) PLD 1967 Kar. 104 (2) PLD 1969 SC 5 ' purpose of Article 158 (1). The sole object of the entry of age appearing in the electoral roll is to show that the person is above 21 years on the qualifying date as required by Article 157 of the Constitution read with section 8 of the Electoral College Act, 1964. The determination of the exact age of the person concerned is not contemplated by any provisions of the Act or the Rules."
9. ' This view was upheld by the Supreme Court in the case of Sirajue Islam Khan, and it was observed that "the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. 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 that his right to be a candidate cannot be challenged on the ground that he does not posses 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."
10. ' In the light of the decisions in the two cases noticed above, it is clear that the question of the appellant's age for the purpose of determining his eligibility to stand as a candidate had to be determined on a consideration of all the relevant facts and circumstances having a bearing thereon, and could not be decided on the basis that the relevant entry in the electoral roll was final one way or the other. The appellant's effort, therefore, to get the electo ral roll amended before filing an appeal against the order of rejection made by the Returning Officer was an exercise in futility, and the learned Deputy Commissioner, acting as appellate authority, was in error in thinking that he could not go behind the amended entry in the electoral roll as ordered by the Registration Officer on the 16th of September, 1979. It was the duty of the appellate authority to examine the evidence adduced by both sides on the question of the appellant's age and then to come to his own finding as to the correct age. This he failed to do, although he noticed the contentions raised by both sides in this behalf. The learned Judge in the High Court fell into the same error in thinking that the entries in the two electoral rolls existing on the date of the nomination were, in any manner, binding or final for the purpose of determining the appellant's eligibility. The election of the appellant on the basis of the interim order issued by this Court on the 24th of September, 1979, can obviously not be allowed to stand, as the respondent was not informed of this order in time so as to enable him to participate effectively in the polling which was to take place on the very next day I. e.
11. 25th of September, 1979. We were informed at the Bar that the respondent had all along remained under the impression that he stood elected unopposed in view of the order of the High Court dated the 23rd of September, 1979. It is clear that the act of the Court cannot be allowed to operate to the prejudice of the respondent, who did not have timely notice of the proceedings taken by the appellant in the Supreme Court for obtaining interim relief.
12. ' For these reasons we would accept this appeal, set aside the appellate order of the Deputy Commissioner as well as the order made by the learned Judge in the writ petition in the High Court, and remit the case to the appellate authority for determining the correct age of the appellant and then decide whether he is eligible to contest the election in question or not. If the appellant is found to be eligible, then it shall be necessary for the Election Authority to hold fresh polling between the appellant and the respondent, who are the only contesting candidates. In case the appellant is found to be below the prescribed age on the nomination date, then the respondent would naturally stand elected unopposed, there being no other candidate in the filed.
13. ' In the circumstances, the parties are left to bear their own costs.