AIMAL MIAN, J.-This petition is directed against the order dated 24-3-1980, passed by respondent No. 1, i.e. Election Tribunal/District Judge, Khairpur, dismissing the petitioner's election petition.
2. The brief facts leading to the filing of the above petition are, that the petitioner and respondent No. 2 participated on 25-9-1979 in the election for membership to the Union Council Nizamani, Taluka Khairpur Mirs (Unit No. 11). It seems that respondent No. 2 was declared as elected because he admittedly obtained more votes than the petitioner. The petitioner filed an election petition inter alia on the ground that on the date, when respondent No. 2's name was included in the Electoral Rolls, he was below the age of 21 years. However, the learned Election Tribunal for the reasons recorded in the impugned order held that respondent No. 2 was qualified to be a candidate on the date of the election and dismissed the election petition. The, petitioner being aggrieved by th.- above order has filed the present petition:
3. In support of the above petition Mr. K. B. Bhutto, the learned counsel for the petitioner, has urged that the electoral rolls of the local councils election were prepared on 1-1-1979 and that admittedly the age of respondent No. 2 was below 21 on the above date and, hence, he was not qualified to have his name included in the electoral rolls. His further submission was that the Election Tribunal was competent to go into the question of age in spite of the fact that the age of respondent No. 2 shown in the electoral rolls was 23 years. In support of the above. Contention he has referred to the case of Muhammad Tufail v. Afuhamtnad Saleem and others PLD 1969 SC (Sic).
5. On, the other hand Nlr Saiiad Hussain Baloch, the learned counsel for respondent No, 2, has urged that electoral rolls for the election of Local Council were prepared inter alia under section 6 of the Electoral Rolls Act, 1974, which provides 18 years as qualifying age and not 21.
4. In order to appreciate the respective contentions of the learned counsel for the parties, it may be pertinent to refer sections 35 and 37 of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance). Section 35 provides that the electoral rolls prepared for election to the Provincial Assembly shall be used as electoral rolls for the election to the council. It further provides that the Election Authority shall arrange to have electoral rolls mentioned in subsequent 1, to split in such manner that there shall be separate rolls for each electoral unit. It also provides that an electoral roll shall not be invalid by reason of any erroneous descrip--tion by a person enrolled or registered thereon or omission of the name. Whereas section 37 provides that a person shall be qualified to be elected as a member (a) he is a citizen of' Pakistan, (b) he has attained the age of 1-t years and (c) .His name appears in the electoral rolls of the local area of the council, to which he proposes to contest election.
It may be noticed that the age of 21 years mentioned in subsection (2) of section 37 is a qualifying age for a candidate to be elected.
5. It may also be pertinent to refer to subsection (2) of section 6 of the Electoral Rolls Act, 1974, which reads as follows:- "Section 6(2).-A person shall be entitled to be enrolled as a voter in an electoral area if he:-
(a) is a citizen of Pakistan;
(b) is not less than eighteen years of age on the first day of January in the year in which the preparation or revision of the electoral rolls com--mences under this Act;
(c) is not declared by a competent Court to he of unsound mind; and
(d) is, or is deemed under section 7 to be, resident in the electoral area: Provided that, for the purpose of the first general election to the National Assembly or Provincial Assembly, or an election to a seat falling vacant before the holding of the second general election to the National Assembly or a Provincial Assembly, clause (b) shall have effect as if for the word "eighteen" therein the word "Twenty-one" were substituted."
It may be noticed that under the above provision, the qualifying age for a person to be enrolled as a voter given is 18 years, but through a proviso this age was increased to 21 years for the purpose of first National and Provincial Assemblies Elections.
6. Having perused the relevant provisions of the relevant enactments, it may be pertinent to refer to the cases relied upon by the learned counsel for the petitioner.
(i) Referring to the Full Bench case reported in PLD 1967 Kar. 104, it may be pertinent to observe that the question before the Full Bench was as to whether the age of a candidate mentioned in the electoral rolls is conclusive or that it could be challenged before the Returning Officer or before any competent forum. While considering the above question, it was pointed out by Mr. Justice Anwarul Haq, J (as he then was) that whereas the age for a voter under the provisions of Electoral College Act for the purpose of National and Provincial Assemblies Election was 21 years, but under clause 1 of Article 158 of the late Constitution of 1962, there were two qualifications for a candidate for National or Provincial Assemblies Elections, namely, (1) that he must be enrolled on the electoral roll for electoral unit, (2) he must not be less than 25 years of age. It was further observed that entry of age appearing in the electoral rolls would obviously be prima facie evidence that the voter was 21 years of age, but no finality could be attached to it for the purpose of Article 158(1) which provides 25 years.
(ii) Reverting to PLD 1969 SC 5 it will suffice to observe that in the above case also the Supreme Court pointed out the distinction in age provided for being a voter on the electoral rolls and for being a candidate. It was observed that the right of any person whose name appears in the electoral rolls to vote cannot be questioned as entries in the final electoral rolls have been made after elaborate inquiry and taking into account objections and claims for the said purpose. But so far as candidature for election to the Electoral College is concerned, Article 158 of the Constitution of 1962 provides that a person in order to be a candidate from a particular unit must not only be a voter of that unit but also must not be below 21 years of age. In that context, it was held that the ascertainment of the actual age of the voter is not a necessity for the purpose of preparation of the electoral rolls as it is only if it is found that the person concerned is less than 21 years of age.
7. In our view the facts of the above two cases are distinguishable for the simple reason that whereas the age of a voter provided for under the Electoral College Act, 1974, for the first National and Provincial Assemblies was 21 years, whereas under Article 158 of the late Constitution of 1962 the age of a candidate was 25 years and, therefore, it was held that the age mentioned in, the electoral roll may be conclusive to the extent that the voter was of the age of 21 years or above 21 but it cannot be conclusive as to the age provided under Article 158 of the Late Constitution of 1962 i.e. 25 years. In the instant case under section 6(2) of the Electoral Rolls Act, 1974, the qualifying age for a voter provided is only 18 years. The proviso providing the age of 21 years was in respect of the first National and Provincial Assemblies Elections. In our view the above proviso cannot be pressed into service for the purpose of election for Local Councils. Furthermore, under section 37 of the Ordinance as pointed out hereinabove the qualifications for a person to be a member of Local Council are I provided:-
(a) that he is a citizen of Pakistan;
(b) he has attained the age of 21 years ; and
(c) that his name appears in the Electoral Roll.
Admittedly, on the date when respondent No. 2 filed his candidature, be was more than 21 years of age and, therefore, was qualified to be a candidate under section 37 of the Ordinance. Additionally he was also on the electoral rolls on the above date.
We may also observe that a complete machinery is provided in the Electoral Rolls Act, 1974, to challenge the inclusion of any person as a voter. In our view the proper stage for the petitioner to challenge the alleged illegal/irregular inclusion of respondent No. 2's name on the voter list was at the time when electoral rolls were prepared. Be that as it may, as we have observed hereinabove that in terms Ordinance, respondent No. 2 was entitled to be a candidate on the date when he filed his nomination paper, the alleged irregularity if any in mentioning of age in the electoral rolls would not vitiate the election of respondent No. 2, when he was in fact qualified on the date of filing of his candidature.
8. For the aforesaid reasons we do not find any substance in the above petition and the same is accordingly dismissed with no order as to costs.