KAMRAN HAYAT MIANKHEL, J. Through the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has sought the following relief:- "It is, therefore, humbly prayed that on acceptance of instant writ petition respondent No.1 to 6 be directed to include the name of petitioner in voter list pertaining to census Block No.022021 111 instead of Jalal Pura/ Baleheri-II having census No.022020414 or 0220020413 alongwith his father and two bother their spouses alongwith the permission to the petitioner for contesting the election as General Councilor for the village Council Banda Pir Khan-II by accepting his nomination papers at his own risk and cost, any other relief deem fit for the petitioner may also be generously granted."
2. The facts of the case, briefly stated, are that the petitioner alongwith his father and two brothers are permanent residents of Banda Pir Khan having ancestral property and residence since forefathers in the abovementioned village. The petitioner intended to contest election from Village Council Banda Pir Khan-II as candidate for 'General Councilor ' and in this respect, he filed his nomination papers. The petitioner had earlier filed writ petition No.260- A/2022 seeking transfer of his votes which was disposed of, vide order dated 22.02.2022, with the direction to respondent No.2 to consider his grievanc e and decide the matter in accordance with law. The petitioner also filed Review petition No.09-A/2022 against the order passed in above mentioned writ petition, however , in the meanwhile, respondent No.2 passed the impugned order dated 28.02.2022, hence, this petition.
3. Arguments heard. Record perused.
4. Perusal of record reveals that the petiti oner intended to contest election as 'General Councilor ' in the 2nd Phase Local Government Elections, 2022 from electoral area of Village Council Banda Pir Khan-II, for which, he filed his nomination papers before the Returning Officer, respondent No.4. The petitioner , as mentioned above, had earlier filed WP No.260-A/2022, seeking therein similar relief for deletion and inclusion of his name from Electoral List of 022020405 of VC 82, Baldheri-II to Block Code 022021 111 of VC 83, Banda Pir Khan. This Court, while disposing of the said petition vide order dated 22.02.2022, referred the matter to respondent No.2, Provincial Election Commissioner , Khyber Pakhtunkhwa, Peshawar , for decision after providing an opportunity of hearing to the petitioner . The respondent No.2, while disposing of the matter , observed that he lacked jurisdiction to transfer the vote of the petitioner , in view of provision contained in Section 39 of the Election Act, 2017. The petitioner also filed a review petition against the order of this Court dated 22.02.2022, which was later on withdrawn with permission to file writ petition for the redressal of his grievance. Before the promulgation of Election Act of 2017 (hereinafter referred to be as Act of 2017), the electoral rolls were prepared under the Electora l Act of 1974, which by virtue of section 241 of Act of 2017 has been repealed.
5. The quintessence of the present petition is that the petitioner alongwith his father and two brothers are permanent resident of Banda Pir Khan having ancestral property and residence since forefathers and the transfer of his vote in the electoral roll of village Jalalpura/Baldehri-II amounts to disenfranchisement of petitioner right from his ancestral village/home.
6. A complete mechanism has been provided for the preparation of electoral rolls under the Act of 2017. Chapter-IV of Act of 2017 deals with preparation of electoral rolls in an exhaustive manner . It will be advantageous to discuss in brief the mechanism given in the Act of 2017.
Under section 24 Registration Officers are appointed for an electoral area or group of electoral areas for the purpose of preparation, revision, correction and amendment of the electoral rolls.
By dint of section 25 the electoral rolls are to be prepared from the data transmitted by the National Data Base and Registration Authority .
Preliminary electoral rolls are prepared under section 26 and under section 27 of the Act, a person shall be deemed to be resident in an electoral area if his temporary or permanent address in the National Identity Card issued by the National Data Base and Registration Authority (NADRA) lies in the said electoral area. Subsection 4 of section 27 also contains a non-obstante clause according to which if a registration of a voter at an address other than the permanent or temporary address mentioned in his National Identity Car shall remain valid till he applies for transfer of his vote.
Section 28 stipulates that the preliminary electoral list prepared under section 26 of the Act by the Registration officer shall also publish it and display the rolls for a period of not less than 30 days at his office and at such other place or places accessible to the public as the Commission may direct together with a notice specifying the dates within which claims, objections and applications with particular forms are as provided under section 30 of the Act.
A revising authority is to be appointed by the Commission for any electoral area or group of electoral areas, for the purpose of receiving and deciding the objections and applications for collection of preliminary electoral rolls as per section 29 of the Act.
Under Section 30 of the Act, any person can file an application for inclusion of a name in the electoral roll or an objection to, or application for correction of an entry in electoral rolls before the revising authority within a period of 30 days or as the Commission may determine.
According to Section 31 of the Act, anyone can apply for the transfer of his name from electoral roll of one electoral area to the electoral roll of another electoral area with the revising authority , and if it is filed after final publication of the electoral roll under section 35 of the Act then before appropriate Registration Of ficer under section 37.
Section 32 of the Act deals with powers of Registration Officer to apply within period mentione d in section 30 to the revising authority for inclusion and exclusion of name of any person in the electoral roll.
Section 33 of the Act basically deals with power of revising authority to reject any claim or objection or correction of electoral rolls.
Section 34 of the act deals with correction of electoral rolls by registration officer as per decision of revising authority or may correct any clerical, printing or other error only but cannot include or exclude from it, the name of voter .
Final electoral rolls shall be published by the Registration Of ficer under section 35 of the Act.
Section 36 deals with periodical revision of electoral rolls.
Furthermore under section 37 of the Act, any person may apply to the registration officer on the prescribed form alongwith CNIC issued to him by NADRA for inclusion of his name in the electoral rolls within the district and if the person applies for the transfer of vote from electoral roll of an electoral area of a district to the electoral roll area of other district to the Registration Officer of the District to which transfer of vote is sought. This section gives right of appeal to the appellate authority against the decision of Registration of ficer.
Section 38 of the Act stipulates that if Commission considers it necessary on account of any gross error or irregularity in preparation of electoral roll for any electoral area or a part of electoral area or any other cogent reasons including changes in the limits of that electoral area or large scale displacement of population due to natural calamity , may order for cancellation and for preparation of fresh rolls.
According to section 39 of the Act, no revision of or correction in an electoral roll of an electoral area or inclusion or transfer of a vote from the electoral roll of an electoral area shall be made nor shall any order under section 38 be made in respect of electoral rolls after the constituency is called upon to elect.
Section 40 deals with power of Commission to modify electoral rolls but subject to section 39 of the act and section 41 of the Act deals with maintenance of electoral roll by the Registration Officer. Furthermore, any mis-description of a person or of omission of the name of any person entitled to be so enrolled shall not invalidate the electoral rolls under the purview of section 46 of the Act.
7. One of the argument of learned couns el of petitioner was that they were not informed or served with a notice regarding the change of their electoral area has no force as more than ample time was given to the petitioner by the commission for the correction, or deletion or inclusion of his name in the concerned electoral area but he slept over his right and all of a sudden came out of his deep slumber at the eleventh hour and that too after the announcement of election schedule. It is trite law that one should be vigilant about their rights under the general law. The petitioner 's counsel has further argued about the infringement of fundamental right of petitioner to vote and also to contest election from the constituency of his choice but fundamental rights are subject to reasonable restrictions as imposed by law. This view has been elaborately been explained in case titled 'Muhammad Irshad vs. Government of Khyber Pakhtunkhwa and others' (PLD 2016 Peshawar 170 ) as under:- "This crucial right of a person to vote cannot be taken in isolation; with every right is a corresponding obligation of the person. All are to be vigilant about their rights under the general law and Constitution. "
8. In case titled 'Haider Ali Khan Jamali vs. Returning Officer/ADC Jaffar Abad and 2 others', reported as (2013 CLC 1381) has held that: "The petitioner intends to contest the election but he had not checked as to whether his name was incorporated in the electoral roll, desp ite having a fair and reasonable opportunity spreading over a period of more than five months i.e. from 12th May, 2013 to 30th October , 2013. It is suffice to observe that respondent No.1 has acted in utter violation of applicable law, when all three nomination papers filed from three different constituencies have been accepted, although, the petitioner subsequently withdrew from two constituencies. He now wants to contest an election from the constituency of his own choice. The provisions of section 20 of the Electoral Rolls Act, 1974 and section 24(1)(c) of the Balochistan Local Government Act, 2010 are a bar in doing the same."
9. This Court in case of 'Nasir Khan vs. Election Commission of Pakistan and three others' dated 29.11.2021 held that:- "Pronounced aspect of the case is that the petitioner failed to approach the proper forum i.e. Revising Authority within the stipulated period of time i.e. before the final publication of the electoral roll, which has not been done as prescribed by law ."
10. In another case titled 'Muhammad Ismail vs. Election Commission of Pakistan and 3 others' decided on 17.11.2021 has elaborately dealt with the issue in hand and held that:- "According to section 39 of the Election Act of 2017, No revision, correction, transfer or modification, or change, or inclusion or exclusion of the name in or from electoral area after the announcement of election."
11. In case titled 'Yousaf Ali vs. Election Commission of Pakistan through Chief Election Commission and 4 others' (2016 MLD 1881 ) has held that: "Having missed the opportunity at the relevant time, the petitioners cannot invoke the constitutional jurisdiction of this Court to thwart scheme of the law clearly defined in the Act."
12. Learned counsel for the petitioner could not point out any illegality , irregularity or jurisdictional defect in the impugned order passed by respondent No.2, calling for interference by this Court in its constitutional jurisdiction.
13. In view of the discussion made hereinabove, this petition being devoid of substance is dismissed.