' AJMAL MIAN, J.-This a Writ Petition whereby the petitioner has prayed for the following reliefs :- "The petitioner therefore, prays for the following :
(a) Declaration that the two orders dated 12-10-1983 and 18-10-1983 rejecting the nomination papers of the petitioner are mala fide, illegal, unlawful, without jurisdiction and therefore of no legal consequence ;
(b) A direction to the respondents to accept the nomination papers of the petitioner forthwith and to allow him to participate in the ensuing elections.
(c) Costs.
(d) Any other appropriate relief/reliefs that this Honourable Court may deem fit and proper."
2. The brief facts leading to the filing of the above Writ Petition are that the petitioner filed nomination paper from U. C. 101 in response to the election Programme issued on 3.10-1983 (Annexute K to the petition). It seems that respondent No, 3 raised an objection before the Returning Officer I. e. Respondent No, 1 to the effect that the name of the peritioner appeared on electoral roll at Serial No, 6196 of U. C. 100 as well and, therefore, he was disqualified from being a candidate from U. C.
101. The above objection was accepted by respondent No, 1 by his order dated 12-10-1933. The petitioner being aggrieved by the above order filed appeal, which was dismissed by respondent No, 2 by his order dated 18-10.1983. The above petition was filed on the following day i. e. On 19-10- 1983. Alongwith the above petition an application under Order XXXIX, rules 1 and 2, C. P. C. Was filed for interlocutory relief in the form of direction to respondent No, 1 to allocate symbol to the petitioner. However, no interlocutory order was passed in view of the statement of Mr. Munawar Malik learned counsel for respondents Nos. 1 and 2. It may be advantageous to reproduce hereinbelow the order dated 20-10-1983 passed by this Court, which reads as follows :- "Mr. Usman Ghani Rashid for the petitioner.
' Mr. Munawar Malik for respondents 1 and 2. Mr. Raja Qureshi for respondent. No, 3: ' Messrs Munawar Malik, Raja Qureshi and Murtaza Malik holding brief for Mr. Aziz Munshi, Dv.
Attorney-General request for time on the ground that their clients had received notice yesterday afternoon and, therefore, they did not have sufficient time. The advocate for the petitioner wanted that we should pass order today for allocation of a symbol Mr. Munawar Malik has pointed out that in the ballot-paper form; there is no symbol which is to, be printed and only serial number kethe allocated symbol of the candidate is to be mentioned on the ballot-paper at the time of casting vote and, therefore, there is no urgency as the symbol can be allotted within one hour from the passing of the order by this Court. We would fix the main petition as well as stay application on 23- 10-1983."
' The above petition has come up for hearing before us today in terms of the above order for hearing of the main petition as well as for the stay application.
3. (a) (1) In support of the above petition Mr. Usman Ghani Rashid, learned counsel for the petitioner has urged that since under section 15-B of the Cantonments Act, 1924 as amended by Ordinance No, XLIV of 1979 there is no disqualification of the nature which found favour with respondents 1 and 2 and on the contrary under proviso to rule 12 of Election Rules, it is clearly provided that no objection as to the electoral roll would be entertained by the Returning Officer, the impugned orders are not sustainable.
(ii) That even otherwise on the relevant date the name of the petitioner appeared only on electoral roll of Unit No, 101 and not on electoral roll of Unit No, 100.
(b) On the other hand Messrs Aziz Munshi, Munawar Malik and Raja Qureshi have contended as follows :-
(i) That since by virtue of Ordinance No, XLIV of 1979 the electoral rolls prepared under the Electoral Rolls Act, 1974 were to be made basis and as under section 25 of the Act of 1974, it is provided that a person cannot have his name on two electoral rolls, the respondents Nos. 1 and 2 have acted in accordance with law in rejecting the petitioner's nomination paper on the ground that his name had appeared on electoral roll of Unit No, 100 in addition to unit No, 101.
(II) That under section 15-B (g) of the Cantonments Act, 1924 as amended by Ordinance No, XLIV of 1979 the petitioner was disqualified.
(iii). That on the date when the election was announced the name of the petitioner appeared on two electoral rolls, namely on Unit No, 100 and Unit No, 101.
3. (a) It may be pertinent to quote. Hereinbelow section 15-B of the Act and rule 12 of the Cantonments (Election and Election Petitions) Rules and section 25 of the Electoral Rolls Act, 1974, which read as follows :- "15-B. Qualifications and disqualifications of members.- (1) A person who is no less than twenty-one years of age on the first day of January preceding the election shall be qualified to be elected as a member of a Board if his name appears for the time being on the electoral roll of the ward from which he seeks election and he is not subject to any disqualification for being elected as, and for being a member of a Board.
(2) A person shall be disqualified for being elected as, and for being a member of, a Board if he -
(a) has ceased to be a citizen of Pakistan or has voluntarily acquired the citizenship of a foreign State or has made a declaration of allegiance or adherence to a foreign State :
(b) is an undischarged insolvent ;
(c) has been ordered to execute a bond under section 110 of the Code of Criminal Procedure, 1898 (Act V of 1898), or has, on conviction for an offence involving moral turpitude, been sentenced to imprisonment for a term of not less than six months, unless five years or such less period as the Federal Government may, by notification in the official Gazette, specify in this behalf, have elapsed from the date of the expiration of the period of the bond or sentence, as the case may be ;
(d) is .a wholetime salaried official in the service of Government or of a public statutory corporation, a corporation under the control of Government, Board or a local body or other local authority ;
(e) is under contract for work to be done or goods to be supplied to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs ;
(f) fails to take oath of membership of the Board or to declare his properties as required under this Act ; or
(g) is for the time being disqualified for the membership of an elective body under any law for the time being in force."
' Rule 12: Scrutiny.-(1) The candidates, their election agents, their proposers and seconders may attend the scrutiny and the President shall give them all reasonable facilities for the examination of all nomination papers.
(2) On the scrutiny day and at the time and place appointed by him, the President shall, in the presence of the persons attending the scrutiny under sub-rule (1) undertake scrutiny of the nomination papers and decide any objection raised by any such person to any nomination : ' Provided that if the President is unable to undertake the scrutiny, he may nominate a person (other than the Executive Officer, an elected member or a servant of the Board) to undertake the scrutiny.
(2) The President or his nominee shall decide all objections, which may be oral or in writing and which may relate not only to the form of the nomination but also to the violation or non- observance of any provision of the Act or these rules and, after making such summary enquiry for this purpose as he may think necessary, shall reject a nomination if he is satisfied-
(i) that the candidate is ineligible for election under the provisions of the Act ;
(ii) that the proposer or seconder is disqualified from being a voter in the same ward as that of the candidate ;
(iii) that the. Signature of the candidate or of the proposer or seconder is not genuine or has been obtained by fraud Provided that no objection to a candidate or to a nomination which relates to his registration in the electoral roll shall be considered.
(4) The decision taken on each objection shall be endorsed on the nomination paper, and if any nomination paper is rejected, a brief statement of the reasons for rejection shall be recorded thereon and signed by the person hearing the objection.
(5) Where the nomination paper or papers of a candidate have been rejected, the .Returning Officer shall, on request, supply to such candidate on the same day certified copies of such orders free of cost.
(6) The Returning Officer shall immediately send to the President the rejected nomination paper or papers alongwith his orders thereon."
' Section 25 of Electoral Rolls Act, 1974 : "No person to be enrolled more than once or in more one electoral area.- No person shall be enrolled-
(a) on the electoral roll for any electoral area more than once ; or
(b) on the electoral rolls for more than one electoral area."
(b) It may be noticed that above-quoted section 15-B, it has been provided that a person shall be disqualified from being elected as and from being a member of Board if he (i) has ceased to be a citizen of Pakistan or has voluntarily acquired the citizenship of a foreign State or has made a declaration of allegiance or adherence to foreign State, (tt) is an undischarged. Insolvent, OW has been ordered to execute a bond under section 110 of Cr. P. C. Or has, on conviction for an offence involving moral turpitude, has been sentenced to imprisonment For a term nor less than six months unless five years or such less period as Federal Government by notification in the official Gazette ; made specify in this behalf has elapsed, (Iv) is a whole time salaried official the service of Government or of a public statutory corporation, a corporation under the control of Government, a Board of a Local body or other local authority, (v) is under contract for work to be done or goods to be delivered to the Board to which he seeks election or has otherwise any pecuniary interest in its affairs, (vi) fails to take oath of membership of the Board or to declare his properties as required under this Act, (vii) is for the time being disqualified for the membership of an elective body under any law for the time being in force, It is evident that the case of the petitioner does not fall under the above clauses (a) to (I) of subsection (2) of section 15-B. However, it has been contended by the learned counsel for the respondents that the petitioner's case is covered by clause (g), namely, is for the time being disqualified for the membership of an elective body under any law for the time being in force. In our view, the above clause (g) can be attracted to a case where a person has been declared as disqualified for the membership of an elective body on account of some embargo provided under some law.
(a) It may also be noticed that under proviso to rule 12 it has been expressly provided that no objection to a candidate or to a nomination which relate to the registration in the electoral roll shall be considered by the Returning Officer.
(b) Whereas above section 25 of the Electoral Rolls Act, provides that no person shall be enrolled on the electoral roll for any electoral area more than once ; or on the electoral rolls for more than one electoral area. In our view, unless the consequence for getting a person enrolled on the electoral roll for more than one electoral area, would have been provided in section 25, it cannot be urged that the inclusion of the name of a person in more than one electoral rolls for more than one area shall entail consequence that he will not be entitled to vote or to contest from any one of the electoral rolls areas. It is true that under the Act the electoral rolls maintained under the Electoral Rolls Act were made the basis for the purpose of Cantonments elections but the disqualifications have been expressly provided in section 15-B enumerated hereinabove and in the absence of any express provision in the Act, in our view we cannot import disqualification on the basis of the language used in section 25 of the Electoral Rolls Act, 1974. The Electoral Rolls Act, 1974 itself provides a complete machinery catering for such a situation where the name of a person appears in more than one electoral area or where the name of a person has been omitted. The effect of proviso to rule 12 referred to hereinabove was to disentitle a Returning Officer to travel into the area covered by the Electoral Rolls Act, 1974 and, therefore, respondent No, 1 was not competent in law to reject the petitioner's nomination paper on the ground that his name had allegedly appeared on electoral roll of unit No, 100 as well on the relevant date. The respondent No, 2 also committed the same error by not accepting the petitioner's appeal.
5. As regards the question, whether factually the petitioner's name appears on the electoral unit No, 100 alone or also on the electoral unit No, 101, it may be observed that the petitioner has filed the certificate date 13-10-1983 issued by the Registration Officer VII (South) and Nationality and Visa Officer, Karachi, which reads as follows : Certificate ' Certified that the name of Mr. Muhammad Afzal Muniff son of AI-Haj Muhammad Muniff does not appear in the electoral roll list of U. C. 100 and the serial No, 6196 allotted to him in the year 1979 has already been allotted to one Mr. Shafiur Rehman Afridi son of Khan Mast Afridi as shown in. The Supplementary Voters List of U. C. 100 printed in the year 1983.
' This is further certified that after being satisfied under section 18 of the Electoral Roll Act, 1974 that the name of Mr. Muhammad Afzal Muniff son of Al-Haj Muhammad Muniff does not appear anywhere in the Electoral of U. C. 100 and after obtaining necessary document/ affidavit his application for inclusion of his name has been granted and his name has been included in the Electoral Roll in U. C. 101 at serial No, 10891.
(Sd.)
(Muhammad Iftikhar Alam) Registration Officer VII (South) and Nationality ' Visa Officer, ' Dated 1340-1983. Karachi.
' He has also filed photostat copy of alleged electoral roll Annexure E to the petition which indicates that at serial No, 6196 the name of one Shafiur Rehman Afridi appears in place of the petitioner. On the other hand learned counsel for the respondents have invited our attention to the fact that the above certificate has been issued by the Registration Officer on 13.104983 and that the name of the petitioner was included in unit No, 101 on 21.9-1983. They have further contended that in view of Annexure II dated 8-9-1983 to the counter-affidavit, whereby Director, Military Lands and Cantonments has fixed the date for election of Cantonment Boards in Pakistan as 26th October, 1983, the election date was announced prior to the date of inclusion of the petitioner's name in unit No,
101. On the other hand, Mr. Usman Ghani Rashid has invited our attention to Annexure K to the petition which is the election programme announced by the President, Cantonment Board, Clifton I. e. Respondent No, 2 on 3rd October, 1983. It may be pointed out here that alongwith Annexure to the counter-affidavit there is S. R.
0., dated 29th August, 1983 for fixing the date of election in the Cantonments areas throughout Pakistan as 26th October, 1983. In our view, it is not necessary to go into the above controversy, since we are inclined to hold that in the absence of any express disqualification of the nature in question provided for in section 15-B read with proviso to rule 12 of the Election Rules, the petitioner's nomination paper could not have been rejected on the ground that his name appeared on two electoral rolls. It may be pointed out that respondents Nos. 1 & 2 have not rejected the petitioner's nomination paper on the ground that his name in electoral rolls of Unit No, 101 was included late. On the contrary, it is an admitted position that the petitioner's name was in the electoral rolls of Unit No, 101 on the relevant dates, namely, on the date of issuance of the election programme, on the date of filing of nomination paper, on the date of scrutiny of the nomination papers by the returning officer and on the date of hearing of the appeal etc.
6. We, therefore, allow the petition and declare the impugned orders as without lawful authority and of no legal effect. We also direct respondent D No, 1 to allocate symbol to the petitioner in terms of the order, dated 20-10-1983 passed by this Court referred to here in above in para. 2 and to allow the petitioner, to participate in the election of unit No,
101. In the circumstances of the case there will be no order as to costs.