' RUSTAM S. SIDHWA J--This is a constitutional petition filed by Sheikh Abdul Hamid, petitioner, requesting that the order of the Returning Officer, Cantonment Board, Rawalpindi, respondent No, 2, dated 9th October, 1983 and that of the President, Rawalpindi Cantonment Board, respondent No, 1, dated 23rd October, 1983 rejecting his nomination papers for standing as a candidate for election as member of the Cantonment Board, Rawalpindi, from Ward No, 3, be declared to be without lawful authority, that the said respondents be directed to include the petitioner's name in the list of contesting candidates and that he be allowed to participate in the election, subject to the decision of this Court on this petition.
2. The brief facts of the case are that Sheikh Abdul Hamid, petitioner, son of Sheikh Abdul Aziz, resident of house No, 3054/B, Police Station Road, Saddar, Rawalpindi Cantonment (electoral Ward No, 3), stood for election to the Cantonment Board, Rawalpindi, in 1979. At that time, his name was borne on the electoral roll of Ward No, 3 of the Cantonment Board, Rawalpindi. He won the said election and his name was notified in the Gazette of Pakistan published on 21st October, 1979 (Annexure 'A' to the petition). He was elected as Vice-President of the Cantonment Board, Rawalpindi, and held that office for four years, whereafter, due to a vote of no-confidence passed against him on 2nd August, 1983 he lost his office as Vice-President. In 1983, the petitioner again submitted his nomination papers for election from the said Ward No, 3 to the seat of the Cantonment Board, Rawalpindi, to be held on /.6th October, 1983. On 9th October, 1983 the petitioner's nomination papers, as well as that of his rivals, was scrutinized by the Returning Officer, Cantonment Board, Rawalpindi, respondent No,
2. The petitioner's nomination papers were rejected by respondent No, 2 with the following observations :- Objection raised as under :-
(1) Name not included in Electoral Roll "withheld".
(2) Office-bearer of defunct P. P. P. "withheld".
(3) Misconduct while member of elected body "withheld". Rejected.
' On 10th October, 1983 the petitioner preferred an appeal before the President, Cantonment. Board, Rawalpindi, respondent No, 1, against the order of respondent No,
2. Respondent No, I accepted the petitioner's contentions, rejected the objections of respondent No, 2, but again rejected the nomination papers on a fresh ground, by a short order, dated 13th October, 1983 reads as follows :- "Appeal rejected on the 'basis of having pecuniary interest in the Board and its affairs."
' The petitioner challenged the above order of respondent No, 1 through Writ Petition No, 397 of 1983, whereas Bashir Ahmad, respondent No, 3, challenged the same through Writ Petition No, 404 of 1983. During arguments in the said writ petitions, which were consolidated for hearing, Mr. Bashir Ahmad Ansari, Advocate for the Cantonment Board, Rawalpindi, conceded that the order of respondent No,
1. To the extent that it rejected the appeal of the petitioner on the basis that he had pecuniary interest in the Board and its affairs, could not be legally sustained. However, since respondent No, 1 had not discussed the three grounds which the respondent No, 2 had found against the petitioner, both the writ petitions were accepted by this Court and the appeal, of the petitioner was remanded to respondent No, 1 for a fresh decision in accordance with law, after hearing the parties Concerned and paying due attention to the grounds held against the petitioner by respondent No,
2. The parties were directed to appear before respondent No, 1 on 23rd October, 1983 who was directed to hear and decide the appeal the same day. The parties accordingly appeared before respondent No, 1 on 23rd October, 1983 who, after hearing them, again rejected the nomination papers of the petitioner on three grounds, as stated in his order of that date (Annexure 'H' to the petition). Being 'aggrieved by the said order, the petitioner has preferred the present writ petition, which is now before us for disposal. At this stage it may be stated that on 24th October, 1983 when the present writ petition was admitted, it was noticed that the election was to be held on 26th October, 1983 and since it was not possible to decide the petition before the said date, the Court directed respondents Nos. I and 2 to permit the petitioner to contest the election to the seat of Ward No, 3, with the condition that the result of the election would be subject to the decision of this Court. It was also directed that in case the petitioner was duly elected, the announcement of the result would be withheld and his name would not be notified, till the decision of this Court, and that in case any respondent was elected, the result would be declared and his name notified. Pursuant to the said order, the elections were held on 26th October, 1983 and the petitioner secured the highest number of votes, namely, 1052, but the declaration of the result has been kept in abeyance, pending the final decision of this writ petition.
3. On behalf of the petitioner, Maulvi Siraj-ul-Haq, Advocate, has addressed us in the matter and painstakingly dealt with the three grounds on which the petitioner's nomination papers have been rejected by respondent No,
1. With regard to the first ground on which the papers have been rejected, it is submitted that in the 1979 electoral roll of Ward No, 3, Cantonment Board, Rawalpindi, the name of the petitioner was wrongly shown at serial No, 1583 as "Abdul Majid", that the petitioner had made an application to the Additional Executive Officer, Cantonment Board, Rawalpindi, who exercised the powers of the Registration Officer for having the mistake corrected, which being accepted, the said correction was passed to the Election Officer I, Rawalpindi, who was the competent authority, who had noted the correction of his name on his record, vide his order, dated 23rd September, 1979 (annexed A/1 to the petitioner's C. M. No, 574 of 1983). It is submitted that pursuant to this order, the Correction Sheet to the electoral roll of Ward No, 3 was also printed in 1979, as per the electoral correction sheet (attached with the petitioner's C. M. No, 641 of 1983), which stands confirmed by the certificate of the Election Officer I, Rawalpindi, dated 1st December, 1983 (attached with the petitioner's C. M. No, 641 of 1983). It is contended that in the light of this amendment, the petitioner contested the previous election from Ward No, 3 to the Cantonment Board, Rawalpindi, which election he won and his name was notified in the Pakistan Gazette on 21st October, 1979 (Annexure 'A' to the petition). It is further submitted that the electoral roll of Ward No, 3 of the Cantonment Board, Rawalpindi, prepared for the 1983 elections by the Election Commission of Pakistan comprised the original electoral roll prepared in 1979 with the correction sheets prepared in 1979 and 1983, which were delivered to the Rawalpindi Cantonment Board for the preparation of its electoral rolls, but due to some misadventure, the Cantonment Board, when preparing its own roll for Ward No, 3, did not incorporate therein the amendments brought about by the correction sheets of 1979, with the result that the name of the petitioner still appeared as "Abdul Majid", instead of "Abdul Hamid". Nevertheless, it is stated that the petitioner informed the Returning Officer that he had previously been elected as a member from the same Ward on the basis of the same entry in the 1979 election, that the entry No, 1583 in the electoral roll of Ward No, 3 (Annexure "c' to the respondent No, 3's written statement) actually related to him, that the error in the entry was a misprint, that he had had the said error corrected in 1979, which was not brought forward, in the electoral roll, and that there was no other person bearing the name Sheikh Abdul Majid in their house No, 3054/B at Police Station Road, other than himself, all of which submissions were illegally rejected by the respondents. It is further submitted that under Rule 12(3) of the Cantonments (Elections and Election Petitions) Rules, 1979, the Returning Officer had to make a summary inquiry to determine whether the petitioner was ineligible for election and if the objectors had the right of showing that the petitioner was ineligible for election, it did not debar the petitioner from proving his eligibility and since the entry of the petitioner in the electoral roll did not totally establish his eligibility, he had a right to establish the same by evidence aliunde, which was not permitted. In this connection, it is submitted that under section 15-B(1) of the Cantonments Act, 1924, a person, in order to be eligible for membership, has to show that (i) he is not less than 21 years of age on the first day of January, preceding the election, (ii) his name is recorded in the electoral roll of the ward from which he seeks election and (iii) he is not subject to any disqualification for being elected as, and for being, a member of the Can torment Board. Since these statutory requirements cannot ex facie be established from the entry in the electoral roll, parties have a right to produce evidence aliunde to estabilsh their case. What is only sacrosanct about an electoral roll and which the Returning Officer cannot go into is that the electoral roll is invalid or that the persons named therein are not entitled to vote. The question whether a candidate fulfils all the qualifications required to stand as to candidate, the Returning Officer has to examine all these matters by going into material provided by the opposing parties, over and above the electoral entry. Material particulars going to the root of a candidate's qualification may be incorrectly or defectively entered in the electoral roll. This cannot prevent the Returning Officer from looking into the truth of the matter or the candidates or the objectors from establishing their respective cases. Since the qualifications for eligibility are prescribed under section 15-B (I) of the Cantonments Act, 1924, they being statutory requirements, the Rules cannot prevent the Returning Officer from entertaining material and going into the same, for any such interpretation would be ultra vires of the Act. With regard to the second ground on which the nomination papers were rejected, it is submitted that the disqualification provided by Article 10(2)(b)(7-a) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1979, is only applicable if, on the date of the submission of the nomination papers, a person is found to be a member of a political party and since there was no material at all either before respondents Nos. 1 and 2 to show that the petitioner still continued to be a member of the Pakistan People's Party, he could not be disqualified under the said Article. In this connection, it is submitted that under Martial Law Regulation 48, all the Political Parties were banned and members of all political parties were even prevented from holding themselves out as such members and, in these circumstances, it could not be stated that the petitioner was a member of the Pakistan People's Party on the date of the submission of the nomination papers. In this respect it is also stated that the petitioner had served all his relations with the Pakistan People's Party in 1976-77, that he had no such relation with it when he stood for elections to the Cantonment Board seat in 1979 and that since 1976 he has had no connection whatsoever with the said political party till date. Since there was no material whatsoever with respondents Nos. 1 and 2 to show that he had at any time from 1976 till the date the nomination papers were filed, any connection with the Pakistan People's Party, he could not have been disqualified on this ground. With regard to the third ground on which the nomination papers were rejected by respondent No, I, it is submitted that Mr. Bashir Ahmad Ansari, Advocate, appearing for the Rawalpindi Cantonment Board, in the earlier Writ Petition (W. P. No, 397 of 1983) filed by the petitioner, had conceded that the order passed by respondent No, 1 on the basis of this ground was illegal and not sustainable, yet it appears that respondent No, I again reasserted the said ground for rejecting the petitioner's nomination papers. In this connection it is submitted that there was no material before respondent No, 2 to show that the petitioner had any existing contract or pecuniary relationship with the Cantonment Board on the day of the submission of the nomination papers, which could have entitled the said respondent to disqualify the petitioner on that ground. As regards this ground found by respondent No, 1, it is submitted that in 1980, the President of Pakistan had visited the Cantonment Board to inaugurate the Zakat and Usher Committee, when the President of that Committee requested the petitioner, who was then Vice-Chairman of the Cantonment Board, to arrange for Shamianas etc., in his private capacity, which was done, but since the Zakat and Usher Committee did not have any funds at its disposal to pay for the hire of the said Shamianas and furniture, the Cantonment Board had agreed to pay the amounts. In any event, that chapter stood closed in 1982, whereafter no such transaction took place or any contractual relationship came into effect between the petitioner and the Cantonment Board. In these circumstances, it is submitted that the petitioner was wrongly disqualified on this ground. In the light of these submissions, it is finally submitted that the petitioner's nomination papers were illegally rejected by both respondents Nos. 1 and 2, that their action should be declared illegal and without lawful authority, that the nomination papers submitted by the petitioner should be deemed to have been illegally rejected and that since the petitioner had secured the highest votes in the election held on 26th October, 1983 that he should be declared as duly elected.
4. On behalf of the President, Cantonment Board, Rawalpindi, and the Returning Officer, respondents Nos. 1 and 2, Mr. Bashir Ahmad Ansari, Advocate, has addressed us at some length. He has supported the three grounds on which respondent No, 1 refused to accept the nomination papers of the petitioner. With regard to the first ground on which respondent No, 1 refused to accept the nomination papers, it is submitted that under section 15-A of the Cantonments Act, 1924, the Cantonment Board prepared its electoral rolls on the basis of such rolls pertaining to its Cantonment as were prepared under section 4 of the Electoral Rolls Act, 1974, by the Pakistan Election Commission, that after such electoral rolls were prepared, such of the persons that desired amendments to be made therein, made applications to the Cantonment Board, which applications were processed, that no application was made by the petitioner for making any changes relating to his particulars in the electoral roll of Ward No, 3 and that, therefore, it must be assumed that entry No, 1583 in the Electoral Roll of Ward No, 3 relating to Sheikh Abdul Majid was correct and related to a person bearing that name and that the said entry did not relate to the petitioner. It is further submitted that entries in the electoral rolls must be treated as sacrosanct and that both the Returning Officer and the President were bound to accept the same, as they stood, and could not go behind them. In this connection it is submitted that section 15-B of the Cantonments Act, 1924, which prescribes the qualifications for membership, states that a candidate must be a person whose "name appears for the time being on the electoral roll of the ward from which he seeks election" and the words "for the time being" mean the entry of that candidate in the electoral roll as it stands on the date when the nomination papers are filed and are being scrutinized. If this rule is not adhered to, it is stated that it would be impossible to determine whether a person was a "duly qualified person to be a candidate" for the purposes of Rule 10 of the Cantonments (Elections and Election Petitions) Rules, 1979. It is next contended that the petitioner attempted to secure an amendment to the electoral roll in September, 1983 by submitting an application in that respect, which the Election Officer 11 forwarded to the Registration Officer on 25th September, 1983 (Annexure 'A' to the written statement filed by respondent No, 3), but since the petition was submitted late and the elections were due, the same was rejected. It is submitted that the petitioner could not take advantage of the earlier amendment made by the Election Commission to the electoral roll in 1979 regarding the correction of the petitioner's name therein. It is further contended that respondents Nos. 1 and 2 were persons competent to go into the question whether a particular entry in the electoral roll related to a particular candidate and since the Returning Officer, after a summary inquiry, and the President, Cantonment Board, in appeal, after going through the necessary documents that were produced before him, held that entry No, 1583 in the electoral roll of ward No, 3 did not apply to the petitioner, the said disputed question of fact could not be allowed to be canvassed by this Court. In this regard it is submitted that this Court should not permit itself to become a Court of inquiry into the disputed questions of fact or questions relating to the sufficiency or otherwise of evidence required to prove a particular matter.
In this respect Muhammad Sharif v. Muhammad Afzal Sohail and others (1), Abdul Rehman Bajwa v.
Sultan and others (2), Muhammad Hussain Munir v. Sikandar and others (3) and Khadim Mohy-ud- Din and another v. Ch. Rehmat All Nagra and others (4) have been referred. With regard to the second ground on which the nomination papers of the petitioner were rejected by respondent No, 1, it is submitted that the petitioner was elected as the General Secretary of Ward Committee, Sadar Bazar, of the Pakistan People's Party in 1976, as is apparent from Clippings of the Roznama hug, dated 14th December, 1976 (Annexure "J") to the written statement of respondent No, 3) and that he continued to hold that office till 1978, as is apparent from clippings of Roznama Nawa-e-Waqt, dated 12/13th August, 1979 and Roznama Taamir dated, 6th October, 1979 and copy of the F.I.R. Filed by the petitioner at Police Station Rawalpindi Cantonment on 7th April, 1977 (Annexures "3", "e", "r", {{URDU TEXT}} to the written statements of respondent No, 3). Various photographs taken in 1976 showing the petitioner with office bearers and members of the Pakistan People's Party, which were filed before respondents Nos. 1 and 2 were also alluded to. In view of this position, it is submitted that the petitioner stood disqualified for being a candidate by virtue of section 15-B (2) (g) of the Cantonments Act, 1924, read with section 21(1)(h) of the Punjab Government Ordinance, 1979. With regard to the assertion that the petitioner was an active member of the Pakistan People's Party till 1979, copies of photographs and clippings from newspapers from the file of respondents Nos. 1 and 2 were shown to show
(1) PLD 1981 SC 246 (2) PLD 1981 SC 522
(3) PLD 1974 SC 139 (4) PLD 1965 SC 459 that the petitioner was not only the General Secretary, Ward Committee, Saddar Bazar, of the Pakistan People's Party in 1976, which position he continued to maintain till 1979, but even after the Cantonment Board's Elections of 1979, he was profusely referred to in all Urdu newspapers as the Pakistan People's Party's candidate who had won the Cantonment Board seat. In these circumstances, it is submitted that there was sufficient material before respondents Nos. 1 and 2 to reject the nomination papers of the petitioner on the second ground. With regard to the third ground on which the nomination papers of the petitioner were rejected by respondent No, 1 it is submitted that even assuming, though not admitting, that the petitioner was not guilty of misconduct covered by the ground held against him by respondent No, 1, but being guilty of immoral conduct within the meaning of Article 10(2) (aaa) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, his nomination papers were validly rejected. In this respect it is submitted that a number of inquiries were held against the petitioner with regard to complaints received by the President, Cantonment Board, Rawalpindi, against him and that a vote of no-confidence was also passed against him on 2nd August, 1983, as a result of which the petitioner ceased to be the Vice-President of the Cantonment Board. It is, therefore, urged that the petitioner's conduct had all along been immoral, in that he had acted in a demeaning manner and against all ethics required of a person who holds an elective office. Citing M. Saifullah's case, it is stated that the word "morality", as used in Article 10 (2) (aaa) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1979, is not used in a narrow sense, but in a general sense, "such as the law of conscience ; the aggregate of those rules and principles of ethics which relate, to upright behavior and right conduct of elected representatives and the prescribed standards to which their actions...Should conform in their dealings with each other or with institutions or the State".
5. On behalf of respondent No, 5, Sh. Zamir Hussain, Advocate, whilst adopting the arguments of the learned counsel for the respondents Nos. 1 and 2, submits that since the petitioner had himself in September, 1983 filed an application for the correction of his entry in the electoral roll of Ward No, 3, which application was refused, and since he has not challenged the rejection order passed on the said application in this writ petition, he cannot now assert that entry No, 1583 should be read differently. In these circumstances, it is submitted that entry No, 1583 in the electoral roll, as presently appearing, has to be accepted, according to its tenor.
6. On behalf of respondent No, 3, Mr. Habibul Wahab-ul-Khairi, Advocate, whilst adopting the arguments of the learned counsel for respondents Nos. 1 and 2, further submits that the petitioner has not come to Court with clean hands, that initially he had not lodged relevant documents with his writ petition, that at each stage he had continued to lodge various documents to show the correction of his entry in the electoral roll of Ward No, 3 in 1979 and that the electoral correction sheet printed by the Election Commission of Ward No, 3 in 1979 is a forged and fabricated document. It is submitted that the electoral correction sheet of 1979 relating to Ward No, 3, which purports to be printed by the Shadab Printing Press, was not so printed by them, according to the information receive-
(1) PLD 1982 Lah. 77 end by him, and that this document has been manufactured by the petitioner with the connivance of the staff of the Pakistan Election Corn-mission and introduced in the case in support of the writ petition.
7. Maulvi-Siraj-ul-Haq, Advocate, whilst replying to the contentions raised by the learned counsel for the respondent, submits that the petitioner cannot be disqualified on the basis of section 15-B
(2) (g) of the Cantonments Act, 1924, read with section 21 (l) (h) of the Punjab Local Government Ordinance, 1979, as the said ground was not raised before respondents Nos. 1 and 2, nor any of the said officers rejected the nomination papers of the petitioner on this ground. It is submitted that the petitioner's case should be dealt with on the basis of the grounds found against the petitioner by respondents Nos. 1 and 2 and not on the basis of the fresh ground now urged against him. It is further submitted that the disqualification contained in section 22 (1) (h) of the 1979 Ordinance does not apply to the petitioner's case, as, by virtue of the first proviso to that clause, the petitioner, being an earlier elected member of the Rawalpindi Cantonment Board, stood excluded from the said disqualification. In this connection it is submitted that the words "Local Council under this Ordinance", as appearing in the said first proviso, should be read as "of any Local Council under any elective law" or as "of any Cantonment Board under this Act". As regards the submission of the learned counsel for respondent No, 3 that the petitioner had fabricated the electoral correction sheet of Ward No, 3 which had been issued in 1979, the same is emphatically denied. In this respect as, it is submitted that even Mr. Bashir Ahmed Ansari, counsel, for respondents Nos. 1 and 2, had not taken the bold stand in this Court that the said Sheet was forged, or was never printed by the Election Commission Office in 1979, or that the same was never submitted by the Election Commission Office in Rawalpindi to his Board in 1983, from which the Cantonment Board itself prepared its electoral rolls for the 1983 election.
8. We have given our anxious consideration to the arguments addressed by the learned counsel for the petitioner and the various respondents and have also perused the record. Before we take up the grounds on which the petitioner's nomination papers were rejected, we would like to refer to certain facts leading to the preparation of the electoral rolls by the Pakistan Election Commission and their adoption by the Cantonment Boards and the Local Councils for their elections. Under section 15-A of the Cantonments Act, 1924, electoral rolls in every Cantonment have to be prepared on the basis of the electoral rolls pertaining to that Cantonment as are prepared under section 4 of the Electoral Rolls Act, 1974. Under section 17 of the Electoral Rolls Act, the said rolls are supposed to be corrected and revised each year by the Election Commission Staff. However, information gleaned by us reveals that the electoral rolls pertaining to the whole of Pakistan, which were last prepared in 1979 by the Election Commission of Pakistan, were never revised and corrected thereafter each year. With regard to the Rawalpindi Cantonment in particular, during arguments in the case, the electoral rolls were sent for from the office of the Election Commission, Rawalpindi, which showed that the up-to-date electoral roll of Ward No, 3 consisted of the 1979 electoral roll, four pages of the correction sheets printed in 1979, and six pages of the correction sheets printed in 1983. The 1979 correction sheets show the correction effected regarding the name of the petitioner.
The files of the Rawalpindi Cantonment Board and of the Election Commission at Rawalpindi summoned by one of us (Rustam S. Sidhwa J.), after the arguments were concluded, also show that on 8th August, 1979 the Election Commission requested all Registration Officers to submit their correction lists, which correction lists were furnished by the Rawalpindi Cantonment Board to the Election Commission Office in Rawalpindi. The list relative to Ward No, 3 shows the correction effected regarding the petitioner's name. The correction sheets relative to Wards Nos. 3, 4 and 7 were sent by the Election Commission Office to Shadab Printing Press in September, 1979. The printed correction sheets relative to these Wards were received, which fact was notified by the Rawalpindi Election Commission Office to the Provincial Election Commissioner, Punjab, Lahore on 10th November, 1979. When the next elections of 1983 became due, the Election Commission of Pakistan, by its press note of 9th September, 1982, printed in various newspapers on 5th September, 1982 and later dates, called upon all persons whose names did not appear in the electoral rolls and all persons who desired corrections and deletions of existing erroneous entries, to move applications for any additions, deletions or corrections they desired should be made in such electoral rolls. The period prescribed for the receipt of such applications was 10th September, 1982, to 24th October, 1982, which period was extended from time to time upto 31st January, 1983. In response to the Press Note a spate of applications were received by the Registration Officers posted in the Cantonments and other civil areas. After such applications were processed and final orders passed thereon, the correction lists were sent to the officers of the Election Commission, which then got fresh correction sheets of all the electoral units printed. The final electoral roll, consisting of the original electoral roll of 1979 with correction sheets of 1979 and 1983, were finally published on 31st March, 1983. These rolls (containing the correction sheets) were then taken by the Cantonment Boards and Local Councils in the Punjab, for the preparation of their electoral rolls for the 1983 elections. The Cantonment Boards and other electoral units then issued their own printed electoral rolls. It is in this light that this matter will have to be judged. It is asserted on behalf of respondent No, 3 that the correction sheets of Ward No, 3 printed by the Election Commission in 1979, wherein correction of the name of the petitioner appears, is a forged document. Mr. Bashir Ahmad Ansari, Advocate for respondents Nos. 1 and 2, did not assert in his arguments that the said correction sheets were fraudulently prepared and introduced by the petitioner in the electoral rolls maintained by the Pakistan Election Commission or that some or all of the correction sheets attached with the Electoral Roll of Ward No, 3 sent by the Election Commission to the Cantonment Board, were never received by the Cantonment Board. No affidavit has been filed on behalf of respondents Nos. 1 and 2 to suggest that the said correction sheets were fraudulently prepared or never received. There is also no affidavit filed on behalf of respondent No, 3 or the proprietors or owners of the Shadab Press that the electoral correction sheets printed in 1979, filed by the petitioner, were fraudulently prepared. In these circumstances, we have no alternative but to assume that the correction sheets attached with the electoral rolls of 1979, as produced by Mr. Abdul Hamid, the Election Officer I, Rawalpindi, were correct and that copies thereof were sent to the Cantonment Board, Rawalpindi, for the preparation of their own electoral rolls and that the same were received by the said Cantonment Board. However, for some reason which is not available, it appears that when the Cantonment Board prepared its own electoral roll, the correction in the petitioner's name was not carried over. It was the duty of the Cantonment Board to have provided respondents Nos. 1 and 2 with a correctly prepared electoral roll, containing particulars of the corrections noted in the correction sheets sent by the Election Office to them and, it is now obvious" it was not so prepared and because of its mistake, the respondents rejected the nomination papers. The question that arises is whether the petitioner can be made to suffer for the wrongful action of the Cantonment Board.
9. To answer the above question, we now turn our attention to the law on the subject. The scrutiny of nomination papers with regard to Muslim seats is covered by Rule 12 (3) of the Cantonments (Elections and Election Petitions) Rules, 1979, and that regarding the special interest seats by rule 60 (3) of the same Rules. Under both the provisions, the Returning Officer has the power of making a summary inquiry, when an objection is raised with regard to a nomination paper received, to deter- mine whether a candidate is ineligible for election under the provisions of the Act. Section 26 of the Electoral Rolls Act, 1974, protects electoral rolls from being declared invalid by reason of any misdescription of persons enrolled therein, omission of names of persons entitled to be so enrolled, or inclusion of names of persons not so entitled. Under section 29 of the same Act, the validity of electoral rolls, as prepared or revised under the said Act, or the legality or propriety of proceedings or actions taken thereunder, by or under the authority of the Commissioner or his officers, are protected from judicial review by the Courts. Section 18 of the Punjab Local Government Ordinance, 1979, repeats the thought contained in section 26 of the Electoral Rolls Act, 1974. In view of Section 18 of the 1979 Ordinance, the third proviso to sub-rule (3) of rule 15 of the Punjab Local Councils Election Rules, 1979, has been enacted to enable the Returning Officer to accept a nomination paper, even if an entry in an electoral roll contains an obvious error or defect. Since there is no section equivalent to section 26 or 29 of the Electoral Rolls Act, 1974, or section 18 of the Punjab Local Government Ordinance, 1979, in the Cantonments Act, 1924, such a proviso has not been appended to sub-rule (3) of Rule 12 of the Cantonments (Elections and Election Petitions) Rules, 1979. This Court in Haji. Abdul Rahman's case (W. P. No, 440 of 1983 decided by the Rawalpindi Bench on 3rd January, 1984) has examined the effect of the third proviso to sub-rule (3) of rule 15 of the 1979 Ordinance and has held that what is sacrosanct about an electoral roll and which the Returning Officer cannot enquire into is (i) that the electoral list is invalid, because it has been prepared by incompetent officers or because it contains omissions of persons entitled to vote, or includes persons not so entitled, or contains misdescriptions in the names etc., of persons so listed or (ii) that the persons named therein are not entitled to vote (subject to their identity not being in any doubt) or to stand as candidates for election (subject to their not being under any disqualification), but it is not sacrosanct regarding matters effecting qualification. Where it comes to determining whether a candidate fulfills all the qualifications required of him to stand as a candidate, the Returning Officer has to examine these matters and is competent to accept 4 evidence aliunde, over and above the entry in the electoral roll. The Cantonments act, 1924, does not contain any provision similar to section. 18 of the 1979 Ordinance. The powers of the Returning Officer to enquire into the correctness of any entry in the electoral roll vis-a-vis the qualification, is therefore, not unduly circumscribed. In this view of the matter, we are of the view that respondents Nos. 1 and 2 were duty bound to go into the correction sheets supplied by the Cantonment Board itself to the Election Commission in 1979 (wherein the mistake in the petitioner's name had been corrected) and the 1979 electoral rolls (with their correction sheets of 1979 and 1983) prepared by the Commission in 1983 and from which the Cantonment Board had prepared its rolls and to amine the fact why the petitioner, who had previously also stood for election from the same Ward, which election he had won, in face of the same Incorrect entry, had never had his election challenged by any of the voters in the said ward for four years. This is not a case where the petitioner's right to vote or the fact that he does not reside in the electoral unit where his name appears, is being challenged. The petitioner states that his name appears at serial No, 1583 of the Cantonments electoral roll for Ward No,
3. His case is that the name "Abdul Majid" is a misprint for "Abdul Hamid" and that in any case it was corrected by the Registration Officer in the Cantonment Board in 1979, but which correction was never carried over in the electoral roll prepared in 1983.
Apart from the entry, evidence aliunde confirms the petitioner's assertions. The mistake of the Board cannot be allowed to defeat the right of the petitioner to have his nomination papers accepted. If this is allowed, any rival would be able to destroy his opponent by causing misprints to appear in the electoral roll. In these circumstances, we hold that the petitioner's nomination papers were illegally and unlawfully rejected on this ground.
10. With regard to the second ground on which the petitioner's nomination papers were rejected, we have examined the file of respondents Nos. 1 and 2 and find that there is no material therein which shows that any time in 1983 or on the date when the petitioner's nomination papers were filed, that the petitioner was a member of the defunct Pakistan People's Party or had any association with it. In these circumstances, the D petitioner's case does not fall within the ambit of Article 13 (2) (7a) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1979, read with section 38 (6) of the Political Parties Act, 1962. The petitioner's nomination papers were, therefore, illegally rejected on this ground.
11. With regard to the third ground on which The petitioner's nomination papers were rejected, the file of respondents Nos. 1 and 2 contains copies of bills of Hamid Tent Service, Wattan Tent Service and Modern Tent Service, issued in 1980, but to whom they are addressed, the same is not clear from the said bills. It is submitted on behalf of the respondents that Hamid Tent Service is a business concern run by the petitioner and that these bills were submitted by the petitioner and paid by the Cantonment Board in respect off Shamianas and furniture hired by the Board from the petitioner. It is, therefore, contended that the petitioner had a share or interest in a contract for the supply of goods to the Cantonment Board, and therefore, stood disentitled to be its member under section 21 (I) ( f ) of the Punjab Local Government Ordinance, 1979, read with para. 10 (2) (b) (8) pf the House of Parliament and Provincial Assemblies (Election) Order, 1979. The explanation in respect of these bills has been submitted by the learned counsel for the petitioner, which has been reproduced in para. 3 above and need not be repeated. Assuming that these bills were so submitted and paid in 1980, the contractual relationship between the' petitioner and the Board was temporary and limited to the Zakat and Usher function of 1980, which the President of Pakistan attended. Thereafter, no further contractual or pecuniary relationship developed or has been shown to exist between the petitioner and the Cantonment Board. In any case, none was prevailing in 1983 or on the date when the nomination papers were submitted. In these circumstances, the nomination papers were illegally rejected on this ground. It is also urged that under the third ground, the petitioner was found to be guilty of misconduct and this disentitled him to stand for the elections. In this respect it is stated that a number of complaints were received against the petitioner by the President of the Cantonment Board relating to acts of omission and commission, which were of a demeaning nature, and that a no-confidence motion was also passed against him by the members, as a result of which he lost the seat of Vice-President of the Cantonment Board, all of which circumstances show that his conduct was unethical and immoral and contrary to what was expected of a person holding an elective office and that he, therefore, stood disabled from being a member under Article 10 (2) (aaa) of a Houses of Parliament and Provincial Assemblies (Elections) Order, 1979. M. Saiful lah's case (1) has been cited in support of this contention. In the first instance, we find no document on the file of respondents Nos. 1 and 2 to support this contention. Learned counsel for the respondents admitted during arguments that though a number of complaints were received by the Cantonment Board against the petitioner and his explanation was called for in respect of some, but no charge was framed, inquiry conducted or any decision was given against him. There is no unequivocal finding against him. As regards the no-confidence motion successfully moved against the petitioner to dislodge him from the office of Vice-President, no document lodged by the respondents shows that it was because of his misconduct. The tendency of elected members to displace their office-bearers, with the slightest shift in political alliance, is too well-known, to call for any special comment. In these circumstances, there being no matertal on the record proving clearly that the petitioner was guilty of misconduct or had acted in a manne prejudicial to morality, we cannot agree with the contention that the F petitioner's nomination papers could have been rejected on these grounds.
There is, therefore, no force in this contention raised on behalf of respond dents Nos. 1 and 2, which is rejected.
12. The impugned order is also being supported by the respondents on another ground. We now examine the ground. It is stated that the petitioner stood disqualified for being elected as a member of the Cantonment Board as he was, on or after the 20th day of December, 1971, an office- bearer of the Pakistan People's Party at the local level and his nomination papers, therefore, could be validly rejected under section 15-B (2) (g) of the Cantonments Act, 1924, read with section 21 (1)
(h) of the Punjab Local Government Ordinance, 1979. In this respect, the file of respondents Nos. 1 and 2 contains material, which we consider sufficient
(1) PLD 1982 Lah. 77 ' and would have enable respondents Nos. 1 and 2 have arrived at the said finding, had the said objections been brought to their notice. The I material in this behalf has already been referred to by Mr. Bashir Ahmad Ansari, Advocate for respondents Nos. 1 and 2, in his submissions, which have been reproduced in para. 4 above and which, therefore, need not be restated. As regards the submission made by the learned counsel for the petitioner that by virtue of the first proviso to clause (h) of subsection (1) of section 21 of 1979 Ordinance, the petitioner, who was, immediately before 16th August, 1983, a member of the Cantonment Board, Rawalpindi, stands excluded from the disqualification of clause (h), we are afraid such a result does not follow. Under section I5-B (2)
(g) of the Cantonments Act, 1924, a person stands disqualified for being elected as, and for being, a member of a Cantonment Board, if he is for the time being disqualified for the membership of an elective body under any law for the time being in force. What is to be borne in mind is that the whole clause (h) of subsection (1) of section 21 of the 1979 Ordinance has not been lifted and totally grafted into subsection (2) of section 15-B of the Cantonments Act, 1924. Had such grafting been done, the words "Punjab Local Government (Second Amendment) Ordinance, 1983" and "or of any local council under this Ordinance" would have been amended to read "the Cantonments (Amendment) Ordinance, 1983" and "or of any Cantonment Board under this Act" and the Amendments would have been effected by the Federal Government, as legislation with regard to Cantonment Boards is the exclusive subject of the Federal Government. However, the Federal Government did not re-enact the provision mutatis mutandis verbatim, but adopted the same by "descriptive reference".What is adopted is every provision of any law which is effective for the time being in force and under which any person for the time being stands disqualified for the membership of an elective body. It cannot be denied that the Punjab Local Government Ordinance, 1979, is a law relating to elective bodies and that section 21 of the said Ordinance is one which relates to various disqualifications which disentitle a person to be a candidate or a member of a local council and since the provision by which the member is disqualified has to be adopted by reference; the question arises as to whether the first and the second provisos to clause (h) of subsection (1) of section 21 of the 1979 Ordinance stand drawn in. Section 21 (1) (h) of the said Ordinance reads as follows :- "(1) a person shall be disqualified to be a candidate Or a member of a local council- "(h) if he has, at any time on or after the 20th December, 1971, been a member of any Executive Committee, by whatever name called, or an office-bearer, of a political party at local, district, divisional, provincial or national level : ' Explanation.-The term "local level" in this clause includes mohallah, village and tehsil level : ' Provided that nothing herein contained shall apply to a person who immediately before the commencement of the Punjab Local Government (Second Amendment) Ordinance, 1983, was a member of the Federal or a Provincial Cabinet or of the Federal or Provincial Council or of any local council under this Ordinance : ' Provided further that notwithstanding anything to the contrary contained in this clause, Government may, on its own motion or on a representation made to it, allow any person, by an order in writing, to be a candidate or a member of a local council".
The Punjab Local Government Ordinance (Second Amendment) Ordinance, 1983, was gazetted on 16th August, 1983 and the words or of any local council under this Ordinance" in the first proviso mean a member of a Provincial local council under the Punjab Local Government Ordinance, 1979.
The first proviso therefore can also be read as follows "Provided that nothing herein contained shall apply to a person who immediately before 16th August, 1983 was a member of a Federal or a Provincial Cabinet or of the Federal or Provincial Council or of any Provincial Local Council under the Punjab Local Government Ordinance, 1979."
Since the first proviso seeks to exclude certain types of persons described therein from the category of those that stand disqualified by clause (h), the said proviso becomes an integral part of that clause, at least to the extent that one has to determine who stands disqualified by that clause. Reading the provision in this light, it becomes clear that not all persons covered by clause
(h) stand disqualified, because some stand excluded by the first proviso. Since the adopting law only desires to adopt such provision from any law under which a person "stands disqualified" for / the membership of an elective body, the first proviso would have to be read as an integral part of the clause, when dealing with such cases and when one reads the same, it is clear that persons not covered by the first proviso, but otherwise falling within the purview of clause (h), are alone drawn in by reference. The petitioner, who was previously a member of the Cantonment Board, Rawalpindi, does not fall within the category of persons mentioned in the first proviso, who stand excluded from the application of clause (h). He is a person who thus stands disqualified under this clause. It is not possible to read the words "or of any local council under this Ordinance" as "or of any Cantonment Board under the Cantonments Act". In the first instance, the Provincial Government did not consider that members of Cantonment Boards were entitled to the exclusion.
Members of the Federal Cabinet and the Federal Council were considered worthy of the exclusion, but not members of the Cantonment Boards. It shows that they were expressly excluded. Second, the words "local council" and "this Ordinance" cannot mututis mutandis be read for "Cantonment Board" and "this Act", respectively. This construction would not only be contrary to the intent of the adopting statute, but also violative of the principle of good legislation. Therefore, even applying the first proviso to clause (h), the petitioner does not stand excluded from the disqualification provided by that clause. This Court has already held in Akbar Din v. Returning Officer (Writ Petition No, 391 of 1983, decided by the Rawalpindi Bench on 23rd October, 1983), that persons, who before the commencement of the Punjab Local Government (Second Amendment) Ordinance, 1983, have been members of Cantonment Boards, do not stand excluded from the disqualification provided by clause (h) of subsection (1) of section 21 of the 1979 Ordinance. As regards the question whether the second proviso should also be treated as having been adopted, the position is not free from difficulty. Where special permission is granted by the Provincial Government to contest a local council seat under this proviso, such a person stands automatically excluded from the purview of clause (h), but-then he would not stand for the Cantonment Board seat. If he attempted to do, it would be a fraud on the Federal Government, for such permission was not granted by it and such an intent could not be treated as being incorporated. Again, if the adoption is to be treated as granting the Federal Government the power to give such permission, the adoption could be treated as violating the legislative intent. The answer is not far to seek. First, the word "Government" in the second proviso relates to the Provincial Government and not the Federal Government.
Second, the Federal Government alone has the exclusive power to legislate in respect of local government in the Cantonments. Third, by adopting this meaning, it would be compelling the Federal Government to act thereunder to grant exemptions, which it may not want to do. Fourth and last, such an inference could be treated as contrary to the intent of the adopting statute. For all these reasons we feel that the second proviso does not stand drawn in by the adopting statute.
For the present, to sum up the matter, we would submit that even if the first proviso to clause (h) of subsection (I) of section 21 of the 1979 Ordinance is taken into consideration, the petitioner does not stand excluded by the said proviso, that he falls within the disqualification mentioned in clause (h) and the said provision standing adopted by reference into the Cantonments Act, 1924, the petitioner stands disqualified for being elected as a member of the Cantonment Board. It is true that this objection was not brought to the notice of respondents Nos. 1 and 2 and is a new objection raised before us, but this is due to the fact that the amendment brought by Punjab Ordinance, XV of 1983, was not printed in any of the legal journals upto the date the scrutiny was held and many objectors did not know about it. However, since the impugned orders of respondents Nos. 1 and 2 can be sustained on this legal ground, we do not consider this to be an appropriate case where we should disturb the findings. According to the principle laid down by the Supreme Court in the East Pakistan Railway Board's case (i) this Court must pay due regard to the orders passed by public authorities and explore every possible explanation for their validity and only after this exercise has been undertaken and the order passed is found to be without lawful authority, should the same be struck down. This Court also does not issue a writ, if the impugned order is legally correct, even though defective-[See Fazal Elahi v. C. E. P. (2)]. We would, therefore, not like to exercise our discretion to interfere in the matter. We, therefore, dismiss this petition with costs.
(1) PLD 1965 SC '725 (2) PLD 1962 Lah. 288 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.