' MUFTAKHIRUDDIN, J.-By this Constitution Petition Khusnood Ahmed son of Ch. Muhammad Bakhsh has challenged the orders of the Returning Officer Cantonment Board and the President Cantonment Board Quetta Cantonment passed on 10-10.1983 and 12-10.1983 respectively whereby the nomination paper of the petitioner has been rejected and it has been prayed that these two orders be declared as having been passed without lawful authority and of no legal effect and the election of Muhammad Ryas the respondent No, 3 who has been declared elected after the polls be declared as void and of no legal effect. It is also prayed that a direction to the respondents Nos.
1 and 2 to include the name of the . Petitioner as duly nominated candidate for Ward No, 1 of Cantonment Board, Quetta for fresh election be made by this Court.
2. The material facts as I have been able to gather from the record produced before us by the parties and on behalf of the official respondents are that the petitioner had filed his nomination papers to contest the election from Ward No, 1 of the Cantonment Board, Quetta in the recent election held on 26th October, 1983, a notification in that behalf was published in Gazette of Pakistan (Extraordinary Part II) on 30-8-1983 by the Ministry of Defence. The petitioner also submitted a photo copy of his National Identity Card. The respondents 3 and 4 were also contesting for the same seat from the Ward No,
1. On the date of scrutiny of the nomination papers an objection was raised that the petitioner as shown in the Identity Card issued on the application of the petitioner himself was permanent resident of Tola Ram Road, Quetta, a Mohallah included in the Quetta Municipal limits which formed part of Quetta Municipal Ward No, 2 and in support of the objection a certificate issued by the Registration Officer, Quetta was also filed before the Returning Officer. The certificate issued by the Registration Officer showed that the petitioner was entered at Serial No, 63 of Ward No, 2 of Quetta Town. The permanent address of the petitioner as shown in National Identity Card also tallied. The objection prevailed with the Returning Officer (the respondent No, 2) and the nomination paper of the petitioner was rejected on 10-10-1983. The petitioner filed an appeal before the President Cantonment Board Quetta Cantonment (respondent No, 1) and asserted that he is a permanent resident of Quetta Cantonment and residing at No, 22 Reza Shah Pahlavi Road, Quetta. The appeal was dismissed on 12th October, 1983.
These two orders whereby the nomination papers of the petitioner have been rejected have been impugned in this Constitution petition filed in this Court on 15-10-1983, and alongwith the petition an application (Civil Miscellaneous No, 635/83) praying for the stay of the election till the final disposal of the petition was also made. The election was to be held on 26th October, 1983.
3. The petition was admitted for regular hearing on 15-10-1983 and a notice for the Civil Miscellaneous No, 653/83 was ordered to be issued. The bearing of the petition could not be finalized as one of the learned members, of the Bench which had heard the petition had to proceed to Islamabad to attend some meeting there. The petition was accordingly adjourned. On 30-10- 1983 when this petition alongwith the above-said Miscellaneous Application came up for hearing the learned counsel for the petitioner sought adjournment to make an application to amend the petition. The verbal request was allowed and a formal application C. M. No, 674/83 was made on 1- 11-1983 in that behalf for permission to amend the petition which was allowed on 2.11-1983 subject to all just exceptions at the time of regular hearing and early hearing was ordered. The amended petition was however filed on 5-11-1983 and it was prayed "That in the interest of justice" the orders rejecting the nomination papers of the petitioner and his appeal by respondents Nos. 2 and 1 respectively be declared as having been passed without lawful authority and of no legal effect.
Similarly the polling held on 20-10-1983 wherein the respondent No, 3 was declared as returned candidate, the same also be declared as void and of no legal effect with a further direction to respondents 1 and 2 to include the name of the petitioner in the list of validly nominated candidates for Ward No, 1 of the Cantonment Board Quetta for fresh election."
4. The learned counsel appearing for the petitioner has pressed before us the following grounds :-
(1) that the double entry in the electoral roll is not a disqualification and affords no ground for rejection of the nomination paper ; and
(ii) that the respondents 1 and 2 have not considered the evidence and maliciously ignored the certificate (Annexure 'A') alongwith his appeal filed by the petitioner.
' Respondent No, 3 has contested the petition and has filed the counter-affidavit in reply to the petition and has raised some preliminary objections and controverted the facts alleged by the petitioner in the petition. The case of the respondent No, 3 as disclosed by his reply filed in opposition in Court and the verbal arguments before us may be put in brief :-
(i) that the election of the Cantonment Board for the Ward in question having been finalized and Muhammad Ilyas the respondent No, 3 having been elected the remedy by way of election petition was available to the petitioner which has not been persued as such the petition was not maintainable.
(ii). The elections of the reserved seat for women has also been held and respondent No, 3 has participated in that election and has cast his vote and after the completion of the entire elections the respondent No, 3 was elected as Vice-President of the Board, the present petition thus according to respondent No, 3 has become infructuous and is not maintainable under the law."
' On facts it was contended that the petitioner is not a resident of Quetta Cantonment and is permanent resident of House No, 2-40/2-7 Tola Ram Road, Quetta which is situated in Quetta City within the jurisdiction and area of Quetta Municipal Corporation. This fact having been maliciously concealed by the petitioner he is not entitled to the relief claimed. It was also maintained that the petitioner was not eligible or entitled to contest the elections of Ward No, 1 Quetta Cantonment Board and since the petitioner's name was duly entered in the electoral roll of Quetta Town he has utilized his vote in the election of Municipal Wards, the petitioner has no right to file his nomination papers to contest election on a reserved seat of Quetta Cantonment and in support of his assertions relied on the electoral rolls of the Quetta Town wherein the name of the petitioner was duly entered at No, 63 alongwith his relatives i,e, father and brothers. The identity card showing the Permanent residence of the petitioner was pressed into service and it was stressed that the names of the brother and father of the petitioner are still borne on the rolls of the Quetta. Municipal Ward and the petitioner is not resident of Ward No, 1 of Cantonment. It was also vehemently stressed that the petitioner after exhausting his right of vote in the municipal elections of Quetta held on 31.8- 1983 had filed his nomination papers for Ward No, 1 of the Cantonment Board thus he has not come to this Court with clean hands and was not entitled to the discretionary and equitable relief.
5. The Court required the Advocate-General to assist the Court who has appeired and supported the orders of the respondents Nos. 1 and 2 and opposed the petition. Advocate-General has also produced for our perusal a communication issued by Admn: Officer on behalf of Additional C. E.
South Army and addressed to Muhammad Ilyas the respondent No,
3. Since the information conveyed by this letter is relevant and repudiates the claim of the petitioner that he is resident of No, 22 Shahra-e-Raza Shah Pehlvi, Quetta the same is reproduced :- ' Addl. C. E. South (Army), Quetta Cantt.
"To, ' Tel. 74153 ' No, 1903/XY/El 14 Apr '84.
' Mr. Muhammad Ilyas Khan 54-Cantt. Board Quetta Subject : Accommodation ' Your Letter No, Nil dated 15 Apr. '84 refers. It is hereby informed that no person named Kbushnud son of Muhammad Bux or Muhammad Bux is residing in P. S. P. Quarter-Shahra-Raza Shah Pehlvi.
Quarter No, 22 mentioned in your letter is in the occupation of A/No, 8463630 Mr. Muhammad Aslam L. D. C. (Defence Employee) of this H. Q. Since Mar 1970."
(Sd.) Admn. Offr for Addl. C. E. South (Army) (GHULAM HAIDER)."
' Raja Muhammad Afsar, the learned counsel appearing for the official respondents has placed the file for our perusal which contains (i) the photostat copy of the identity card produced by the petitioner before the Returning Officer. This showed the permanent address of Khusnood Ahmed son of Ch. Muhammad Bakhsh as 2.40/27 Tola Ram Road, Quetta, and (ii) the affidavit filed by respondent No, 3 before the official respondents. The same is reproduced :{{URDU TEXT}}
6. Before we embark upon the scrutiny of the respective contentions raised before us by the counsels it would be appropriate to state the scope of the Constitutional jurisdiction and the extent of interference in the election matter as the question has off and. On been convassed before the High Courts and Supreme Court of this country. In a' Full Bench of the Lahore High Court in Dost Muhammad v. The Returning Officer and others (1), wherein the rejection of the nomination paper of a candidate was brought for scrutiny before the High Court and it was contended on behalf of the petitioner that the dispute arising in the matter was not amendable to the jurisdiction of the Tribunal constituted under the Electoral College Act (where under the election was being held) and that in any case the remedy available in that form was not adequate to oust the Constitutional jurisdiction of the High Court ; on the contrary it was maintained by the other side that the constitutional provision and section 58 of the Electoral College Act, 1964 provide a complete bar to the jurisdiction of the Courts including High Courts to entertain any dispute arising in connection with the election and that their determination was confined to the form and manner provided therein. Mr. Justice Yaqub Ali (as he then was) who rendered the judgment on behalf of the Full Bench observed :- "The overriding considerations appear to be that the law of elections does not contemplate two attacks on matters connected with elections, one while the elections are being held and the other after they have been completed for having regard to the important functions which the elected bodies and legislatures perform in the administration of a democratic country, it is of utmost necessity that the elections ate concluded as speedily as possible and all disputes which arise at intermediary stages are allowed to stand over until the elections have been completed. In case of completed elections there is also a rule that "ordinarily" Courts in exercise of writ jurisdiction decline to interfere in cases of election, because it is desirable that decision on matter of disputed election should as soon as possible become final and conclusive so that the constitution of the council or legislature may be distinctly and speedily known."
' The conclusions reached by the Full Bench were recorded at page 568 of the report in paragraph 12 of the judgment in these words :- "12. To sum up, the conclusions which we have reached are as follows :-
(i) A right founded on statute can be established in Courts if the special Tribunal or authority named in the statute for establishment of their rights does not exist
(ii) If such a Tribunal or authority neglects to exercise its functions or acts improperly in the exercise of its functions a High Court can grant relief under clauses (a) and (b) of Article 98(2) of the Constitution ; and
(iii) in the matter of elections to the legislatures and other electoral bodies an exception is made in that no dispute arising in the course of election will be entertained until the election is completed.
' And after considering the relevances placed by the parties the following rules were enunciated : - "Where the right is created by the statute and the statute provides the
(1) PLD 1965 Lab. 560 ' remedy for its breach and sets up a complete machinery for its administration certiorari will ordinarily be refused and (2) certiorari will issue :-
(i) if there is a manifest defect of jurisdiction in the Tribunal
(ii) if there is a manifest fraud in the party procuring the order complained of ;
(iii) or the authority making the order has acted mala fide ; and
(iv) if there is an error on the face of the record."
' The above-quoted Full Bench judgment alongwith other judgments came up for consideration before the Supreme Court of Pakistan in Sadruddin Ansari's case (I). In my opinion it is necessary to give a full quotation of the observations :- "The learned Additional Advocate-General appearing in support of the appeal has contended that the jurisdiction under Article 98 of the Constitution can only be exercised if no other adequate remedy is available to the person seeking relief under that Article. According to him where a statute or a statutory rule having the force of a statute, as in this case, creates a right, provides a special forum and a special procedure for the enforcement of that right, as has been done by the Basic Democracies (Election of Chairman) Rules, 1960 it is not only incumbent upon the person seeking relief to approach the special forum and follow the special procedure provided but normally the High Court also should not, acting under Article 98, interfere until the special remedy available has been invoked and exhausted, for, it is not the purpose of Article 98 to defeat an existing jurisdiction. In support of this contention the learned Additional Advocate-General has relied upon two decisions of this Court in the cases of Imtiaz Ali v. Ghulam Ali and others PLD 1963 SC 382 and Badrul Hag Khan v. The Election Tribunal, Dacca and others PLD 1963 SC 704 and a full Bench decision of the West Pakistan High Court in the case of Dost Muhammad Malik v. The Returning Officer and another PLD 1965 Lah.
560. In all these cases it was, no doubt, held that ordinarily' the Court in exercise of its writ jurisdiction, would decline to interferer cases of election, because, it is desirable that the decision on a matter of disputed elections should as soon as possible become final and conclusive. But this is not the only reason. Another valid reason for so declining to interfere is because by so doing it would involve itself into a field of investigation which is more appropriate for a Tribunal rather than for a Court exercising the prerogative power. The fact, therefore, that an alternative remedy is provided by law should not only upon the above principles but upon general principles too disincline a Court to invoke its extraordinary jurisdiction in a case where such a remedy is still available."
7. It has been held by the Supreme Court of India in N. P. Pannwani v. Returning Officer Namakhal Constituency (2), that the right to vote or stand as a candidate for election is not a civil right but is a creation of statute or special law and must be subject to the limitations imposed by it.
8. Keeping in view the above dictums it has become necessary to examine in brief the scheme of the election as laid down in the Cantonment (Elections and Election Petitions) Rules, 1979 as amended by S. R. O. {{FOOT NOTE}}
(I) PLD 1967 SC 569 (2) AI R 1952 SC 64 {{FOOT NOTE}} No, 786(i)/83 published in Gazette of Pakistan Extraordinary, dated August 3, 1983. The entire process of election consists of several stages and embraces many stages but broadly it can be divided in these phases (1) before the poll which include the announcement of the election programme, the nomination papers and the scrutiny by the Returning Officer and appeal against the order of the Returning Officer (rules, 8, 10 -and 12) and (ii) the" allotment of symbols to the validly nominated candidates and the actual poll and thereafter the declaration of result and (iii) the election petition (rule 65) the officer before whom it is to be filed and the manner and the form in which it is to be filed and the grounds etc. (These are contained in Part V) rule 65, 66, 69, 75 and 79 are particularly material. The relevant portions whereof are reproduced :- "65 Election petition.-No election shall be called in question except by an election petition presented in accordance with these rules."
"66 Officer to whom the petition should be presented.-A petition calling in question the validity of an election of the return of a particular candidate may be presented in writing to the District Judge of the District within which the election has been held (or where there is no District Judge, to such judicial officer as the Provincial Government may appoint in this behalf) within seven days after the date on which the result-of the election was declared either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election:"
' Provided that no such petition shall he presented on the ground either that the name of any person qualified to vote has been omitted from the electoral roll or that the name of any person not so qualified has been inserted in the roll.
"69. Contents of petition.-(1) The petition shall contain a statement in concise form of the material facts on which the petitioner relies, and shall, where necessary, be divided into paragraphs numbered consecutively, be signed by the petitioner and verified in the manner prescribed of pleadings in the Code of Civil Procedure, 1908 (Act V of 1908).
(2) The petitioner may, if be so desires, in addition to calling in question the election of the returned candidate, claim a declaration that he himself has been duly elected, but such a declaration shall only be claimed on one or other of the following grounds, namely :-
(a) that in fact the petitioner received a majority of the valid votes ; or
(b) that but for votes obtained for the returned candidate by corrupt practices, the petitioner would have obtained a majority of the valid votes."
(i) The enquiry officer shall have all the powers of a civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908), and shall be deemed to be a civil Court within the meaning of sections 480 and 482 of the Code of Criminal Procedure, 1898 (Act V of 1898)."
79. Decision of the enquiry officer.- (1) The enquiry officer may, upon the conclusion of the trial of an section petition make an order :-
(a) dismissing the petition ;
(b) declaring the election of the returned candidate to be void
(c) declaring the election of the returned candidate to be void and the petition or any other contesting candidate to have been duly elected ; or
(d) declaring the election as a whole to be void.
(2) The decision of the enquiry officer on an election petition shall be final."
9. The main controversy centres round the meaning of the words "No election shall be called in question except by an election petition" contained in rule 65 and the point to be decided is whether questioning the election of the Returning Officer in rejecting a nomination paper can be said to be comprehended within the word "No election shall be called in question" and this is the most important question for determination of the meaning to be given to the word "election". In Seth Narain Gurwala v. Hanuman Prashad and others (1), it has been observed by Mabajan, J. Who wrote the judgment for the Division Bench that the term "election embraces the whole procedure whereby an elected member is returned whether or not it be found necessary to take a poll. Hence the rejection of a nomination paper even if in a case where a candidate is elected without contest is a matter \ arising in the course of an election and it has been further held that erroneous rejection of a nomination paper by the Returning Officer is a material irregularity in the course of an election and therefore an election petition to the special tribunal lies.
' The same view was taken by Yaqub Ali, J., in PLD 1965 Lah.
560. The term election embraces the entire process of election (See PLD 1965 Lab. 560) and the nomination is a part of election and as such a dispute as to the validity of a nomination paper is certainly a dispute relating to the election.
' We also find ourselves in agreement with the above view and hold that in regard to all matters and all stages connected with election of the cantonment Boards the provisions have been made in the rules and that there is no provision anywhere in the Election Rules to the effect that anything connected with the election can be questioned at an intermediate stage.
10. The petitioner could file an election petition and could contend therein that he is a resident of Ward I of the Quetta Cantonment and that he was entitled to contest the election from that Ward and did not suffer from any disqualification and that the rejection of his nomination' paper was illegal and improper ; that the result of the election owing to such improper rejection has marterially affected the result of the election. In the proceedings before the Election Tribunal (District Judge, Quetta) there could have been a full trial and evidence could have been taken and even points of fact could be convassed and determined which the petitioner had not established before the Returning Officer or the appellate Authority as the proceeding before them were of summary nature. The powers of the District Judge while hearing the election petition are definitely wider than those of the Returning Officer or the appellate Authority. The preliminary objection raised on behalf of the respondents that in the instant case there was a remedy of filing election petition before the District Judge under rule 66 of the Cantonment (Elections and Election Petitions)
Rules, 1979 is sustained. Applying the law as summarised above it follows that the petitioner in the present case has not followed the right procedure. It is true that he lost in appeal but he did not lose all his remedies. Instead of filing the election petition he rushed to the High Court but was unable to get the election stopped. Now of course it is too late because the election petition is time-barred. It has been held {{FOOT NOTE}}
(1) AIR 1946 Lah. 85 {{FOOT NOTE}} ' in AIR 1955 All. 702 (M) that where an applicant has an alternative remedy which he has allowed to be barred by lapse of time it was no argument to say that he should be granted relief under Article of the Constitution as his legal remedy was barred. It is due to his own fault that the bar of limitation has come to operate. Every one is presumed to know law which means the true purport of the law, as a result of his blundering, others have come to obtain vested and legal right, which cannot be rightly destroyed. It is an accepted principle followed by Courts of equity that where there is a particular remedy given by the Act or the Rules, the aggrieved D party will be relegated to it and the High Court will decline to interfere. A fortiori it must refuse where a right is created by a statute and the statute' itself provides the, remedy.
11. The above discussion is entirely sufficient to dispose of this petition and it is not necessary to enter into the merits of the case. I will, however, advert to the contention of the learned counsel for the petitioner mentioned in paragraph 4 above.
12. Mr. Ehsan the learned counsel for the petitioner in support of his contention has placed reliance on Muhammad Afzal Munif's case (1).
The decision is an authority on its own facts as they stand and the considerations which arise thereon. Thus, the decision is an authority in keeping with the facts peculiar to that case. In the cited case there was no dispute about the contesting candidate's residence wherefrom he has filed his nomination (U. C. 101) but in the instant case the foundation of the objection is that Khushnood Ahmed is not resident of Quetta Cantonment at all, and the residence shown in the electoral roll is unreal on the face of the communication of the Administration Officer of C. E. South Army referred to in paragraph 5 of this judgment wherein it has been shown that Quarter No, 22 Shahra-i-Raza Shah Pahlavi is in occupation of one Muhammad Aslam L. D. C. (Defence Employee) since March, 1970. The identity card issued at the instance of the petitioner Khushnood Ahmed himself established that he is a resident of Iola Ram Road. The premises No, 22 at Shahra-i-Raza Shah Pahlavi is definitely a Government accommodation. In what capacity and how and when the petitioner came to occupy this Government accommodation has not been explained. The petitioner according to his own showing carries on business, the nature of which is also not disclosed. The reliance of the learned counsel, in my opinion, thus, turns out to be only technical.
There is no cavil with the proposition that double enrolment itself is not a disqualification but it certainly raises a serious question as to which entry is correct and to be maintained and the respondent No, 3 thus becomes an interested person in that controversy because he had an objection to the nomination paper of the petitioner and he was challenging the fact of his residence in Cantonment. The entry in the electoral roll raises only a presumption of fact and the evidentiary effect thereof is negatived by the contrary proof furnished by the identity card. I allow myself the liberty to add that the evidentiary value of the identity card is greater for the simple reason that identity card is a document prepared on the information furnished by no other person than the petitioner himself. In my humble opinion the Returning Officer was equally competent to prefer the presumption raised in the identity card rather that the one in the electoral roll. At any rate a serious question of fact which is not only the basic one for the entry of the electoral roll but also for his right to contest the election from Ward No, 1 of the Quetta Cantonment had been raised.
The petitioner offered no (1) PLD 1984 Kar. 76 evidence to prove that he was resident of Quarter No, 22 Raza Shah Pahlavi Road though direct evidence in proof thereof could be available and which if tendered would have settled the controversy. The reasons for non-production of any evidence before the Returning Officer and the President Cantonment Board also raise a presumption against the petitioner. The circumstances of the case therefore give rise to grave suspicion as to the genuineness -of the claim of the petitioner and in the face of the letter issued by the Administration Officer, C. E. South Army, in my own opinion it is not fit to make the presumption in favour of the petitioner. The refusal of the Returning Officer and the Chairman (respondents 1 and 2) to invoke the presumption. In favour of the petitioner on the basis of the entry in the electoral roll cannot be held to be illegal.
13. The assertion of the respondent No, 3 that the petitioner is a permanent Resident of Tola Ram Road Quetta, where the petitioner's name appeared at Serial No, 63 alongwith the names of his father and brothers and the objection that the petitioner is not resident of Quarter No, 22 Shahra-i- Raza Shah Pahlavi prima facie appears to have been established. The words of the respondents 1 and 2 may not be properly worded but the material for the rejection of the petitioner's nomination paper has definitely been furnished before us. The relevant provisions of the Electoral Rolls Act, 1974 are to be noticed, which are reproduced :- "6. Preparation of preliminary electoral rolls, etc.-(1) ..........
(i) ......
(ii). . .
(iii) .........
(2) A person shall be entitled to 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 commences under this Act ;
(c) is not declared by a competent Court to be of unsound mind ; and
(d) is, or is deemed under section 7 to be, resident in the electoral area ; ' Proviso is not necessary."
"7. Meaning of resident.-(1) Save as hereinafter provided, a person shall be deemed to be resident in an electoral area if he ordinarily resides, or owns or is in possession of a dwelling house or other immovable property, in that area.
(2)Where a person owns or possesses dwelling houses or other immovable property in more than one electoral area, he may, at his option, be enrolled in any one such area.
(3)A person who is in the service of Pakistan or holds any public office shall be deemed to bp resident in the electoral area where he is posted, unless be applies in writing to the Registration Officer for enrolment in the electoral area in which he would have been enrolled if he had not been in such service or had not held such office.
(4)The wife of any such person as is referred to in subsection (3) and such of his children as are entitled to be enrolled shall, if they ordinarily reside with such person, be deemed to be residents in the electoral.Area in which such person is deemed to be resident under that subsection,
(5) A person who is detained in prison or held in other custody at any place in Pakistan shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained or held in such custody."
From the above it can be safely said that the intention of the Legislature is. To allow a person to cast his vote from only one place and for that purpose he has to be enrolled as a voter in an electoral area, if he is, or is deemed under section 7 to be, resident in the electoral area. The residence required is not technical but actual and physical and the expression "Resides" used in section 7 means actual residence or place where a person actually lives. It must mean residence existing in reality and in fact and not merely in form. Of course the persons who own or possess dwelling houses or other immovable property in more than one electoral area have the option to be enrolled in any one such area or the person serving in Pakistan and their wives etc. Who are deemed to be resident but the petitioner in the instant case neither claims to have houses or immovable property or possesses dwelling house in more than one area it is his case that he is a public officer and resides in the Cantonment Area of Quetta on account of his service. The provisions of sections 20 and 27 of the Act in my opinion apply to the present case of the petitioner.
' Section 20 provides that "No revision or correction of any electoral roll for an electoral area shall be made nor shall any order under section 19 be made in respect of any electoral roll at any time after the constituency of which such electoral area forms part has been called upon to elect its representative and before such representative has been elected ' Section 27 enacts that subject to section 2C, the Commissioner may, at any time, order :---
(a) the inclusion in an electoral roll of the name of any person entitled to be enrolled on such electoral roll, and such name shall, from the date of such order, form part of the electoral roll ;
(b) the exclusion froman electoral roll of the name of any person who has died or has become disqualified to be a voter, and such name shall, from the date of such order, stand excluded from that roll ; and
(c) the removal of the name of any person from an electoral roll where such removal becomes necessary due to the repetition of the name in same electoral roll or in the electoral rolls of more than one electoral area."
And in view of the repetition of the petitioner's name in the electoral rolls of more than one electoral area it was the Commissioner or his delegatee if such delegation is permissible under the rules who could order the removal of his name from the electoral area of Quetta Town and that too subject to the provisions of section 20 of the Act. The entry from the Electoral Roll of Quetta City could not be removed in the way it has been done in the case of the petitioner. The position remains that when the election schedule was announced for Cantonment i,e, 30-6-083 and upto 31-e-1963 when theH elections for Quetta City Wards were held the petitioner's name was found entered at two places. Tne petitioner also possessed the Identity Card showing his residence at Tola Rain Road, Quetta could have utilized his vote for Ward No, 2 of the Quetta Municipal Corporation Area. The respondent No, 3 had filed an affidavit alleging therein that he did utilize his vote and participated in the Quetta Municipal Election. The controversy cannot *(Here in hulls) ' be resolved by us on the scanty material furnished before us in summary procedure. The petitioner could exhonerate himself before the District Judge in his election petition.
14. The allegation of malice against the respondents 1 and 2 does not deserve any serious notice.
The correct attitude in estimating the action of the Government official is indeed, as pointed out by the Supreme Court of this country in Sai Muhammad v. West Pakistan (1), and later re-affirmed in Imtiaz Ahmed v. Ghulam All and others (2), that they must be regarded as having been taken bona fide unless the contrary is established. It is not suggested that these officers were in league with any other contesting candidate. The contentions of the learned counsel for the petitioner are therefore repelled.
15. The proposition is indisputable, as pointed out by Kaikaus, J. In Badrul Haq's case (3), that :- "When there is jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly and the fact that the decision is incorrect does not render the decision without jurisdiction. I do not see any difference in a case where the question of law decided is a matter on which two opinions can easily be held and a case where the decision on a question of law appears to be clearly erroneous. It would not make difference that on logical reasoning the interpretation of law by the Tribunal could not be supported. Unless a case of mala fides or a mere colourable exercise of jurisdiction could be made out the decision would not be without lawful authority. If an order can be without legal authority because of a clearly wrong determination of a question of law, it should be without legal authority even in ease of a clearly wrong determination of a question of fact. There is no reason for any distinction in this connection between a decision on a question of fact. So if we were to accept the proposition that clearly erroneous decisions are without lawful authority the Court acting under Article 98 would constitute itself a Court of appeal for matters of fact as well as matters of law."
16. If the petitioner was desirous of contesting the election from a Cantonment Ward he should have been a little more careful and could have got corrected the entry in the electoral roll from Ward No, 2 of Quetta City and removed in time as provided in section 20 of the Electoral Rolls Act, 1974. These circumstances lend support to the allegation of the respondent No, 3 contained in the affidavits before the respondent Nos. 1 that he has participated in the election of Ward No, 2 of Quetta City and the petitioner could have rebutted these allegations before the respondents Nos. 1 and 2 or would have taken it to the District Judge by filing election petition where the matter could have been established. At any rate the petition has, not exercised due deligence in his case and landed himself in trouble by relying on the Identity Card which furnished material to the respondent No, 3 for the objection against the nomination. The Courts of equity help only those who are vigilant.
' For the above reasons we do not find any justification for the exercise of our Constitutional jurisdiction in this case. The petition, therefore, merits no consideration and is accordingly dismissed with no order as to costs. {{FOOT NOTE}}
(1) PLD 1958 SC (Pak.) 181 (2) PLD 1963 SC 382
(3) PLD 1963 SC 704 {{FOOT NOTE}}