EMMANUAL MASIH vs THE PUNJAB LOCAL COUNCILS ELECTION AUTHORITY

1. ASLAM RIAZ HUSSAIN, J,--The judgment of the Lahore High Court, Rawalpindi Bench, dated 15-11- 1983, which is the subject-matter of this appeal, was passed in the background of the following- facts:- 2.Emmanual Masih, appellant and Tariq Francis, respondent No.4, were the only candidates for election to the membership of Municipal Committee, Chakwal, District Jhelum, for a non-Muslim seat of the said Municipal Committee, which was scheduled to be held on 5-10-1983. At the the of scrutiny of the nomination papers on 6-9-1983, respondent No. 4 filed an application before the Returning officer, raising an objection that the age of the appellant was not yet 25 years and that he was, therefore, not qualified to contest the election. The application was dismissed by the Returning Officer on 6-9-1983, on the ground that he was registered as a voter in the Electoral Roll prepared on 1-1-1979 wherein his age was shown as 21 years and that he must accept the entry in the said electoral roll regarding his age to be correct, because as a Returning Officer he was precluded from enquiring into the validity or correctness of any entry in the electoral roll by proviso (i.e) to rule 15(3) of the Punjab Local Councils (Election) Rules, 1979 (hereinafter referred to as the "Election Rules") and further that 4 years having passed since the voters list was prepared, the petitioner must be taken to have attained the age of 25 years by that the i.e., the the of Scrutiny on 6-9-1983. Appellant's nomination paper was, therefore, accepted.

3. Aggrieved by this order of the Returning Officer, Tariq Francis, (respondent No. 4), filed an appeal before the Election Authority under section 17(1) of the Punjab Local Government Ordinance, 1979 (herein--after referred to as the Ordinance). Respondent No. 4 produced the original birth register of Municipal Committee, Chakwal, before the Election Authority, in which the date of birth of Emmanual Masih appellant was shown as 20-12-1958. Relying on this entry the learned election Authority accepted the appeal, set aside the order dated 6-9-1983 ( f the Returning Officer and rejected the nomination papers of Emmanual Masih, appellant, with the direction that his name be deleted from the list of candidates.

4. The appellant then challenged the order of the Election Authority before the High Court through a writ petition. It was however, dismissed by the High Court vide the impugned judgment. While dismissing the writ petition, the High Court held that the Returning Officer could go behind the entry regarding the candidate's age in the voters list and ascertain his correct age. The reason given by the High Court was that in view of the elaborate procedure provided by the Electoral Rolls Act, 1974, for preparing the voters list, and also keeping in view the purpose of preparing such lists, an entry in the voters list would be final only as far as it shows the person in question to be a voter -in the constituency to the List pertains and that the embargo placed by proviso (i.e) to rule 15(3) of the Election Rules, cues not bar the Returning Officer from holding an enquiry into the correctness of any entry in the Electoral Roll, e.g. An entry relating to a candidate's age, because it is his (Returning Officer's) duty to ensure that a person offering himself as a candidate has the requisite qualification relating, inter alls, to age. Relevant observation of the High Court reads as follows:- "In our opinion, this embargo placed on the power of the Return--ing Officer by this provision has to be construed in the light of aim, object and purpose for which the Electoral Rolls Act, 1974, was promulgated. The finality ostensibly appearing to have been attached to entries sub-rule (3) of Rule 15 of Punjab Local Councils (Election) Rules, 1979, cannot' be extended beyond the object and purpose for which the electoral roll is prepared, namely, to ascertain whether the person has right to vote. Therefore, the only meaning which can be assigned to the said proviso is that it places an embargo on the power of the returning officer to entertain an objection to the effect and reject the nomination paper of a candidate on the ground that candidate was not a valid voter in if he stood already registered as a voter in the said electoral roll. It only tells the Returning Officer that at the stage of entertaining an objection that candidate is not qualified to be a voter has already gone by with preparation of the final electoral roll and prohibits him from allowing any such objection, on any account and enjoins upon him to accept the factum of candidate being a voter as recorded in the said electoral unit as a proved and inviolable fact. This is the only effect of the said proviso and nothing more. In consequence we think that merely because of the said proviso, the Returning Officer is not to consider the entry of age appearing in the electoral roll as final in so far as the question of candidature for membership of a local council is concerned and for the purpose of ascertainment of the same, he car, take independent evidence, irrespective of the entry in the electoral roll."

2. It also held, relying on Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another 1982 SCMR 108 that the clog place on the jurisdiction of Election Authority by section 17(2) relates only to post election disputes and not to disputes arising prior to the holding of the elections.

5. Feeling aggrieved, the appellant filed a petition for leave to appeal against the said order and leave was granted to him by a Division Bench of this Court on 20-12-1983, inter alia, to consider the A true interpretation of rule 15(3) of the Election Rules, 1979, read with proviso (i.e) thereto.

6. We have heard the learned counsel for the parties at length and have also gone through the impugned judgment as well as the authorities relied upon by the learned Judge in Chamber.

3. The learned counsel for the respondent supported the above-noted view of the High Court. The learned counsel for the appellant, however, strenuously argued that provisions of proviso (i.e) to rule 15(3) of the Election Rules bar the Returning Officer from enquiring into the correct--ness or validity of any entry made in the electoral rolls, including an entry relating to the candidate's age.

4. He urged further that the Election Authority had on jurisdiction to pass the order dated 24-9-1983 in view of the bar contained in section 17(2) of the Punjab Local Government Ordinance, 1979.

7. To understand the question in issue it would be useful to reproduce here the relevant provisions of the Ordinance and the Rules under consideration.

5. Rule 15 relates to scrutiny of nomination papers. Rule 15(3)(i.e) reads as follows:- "15. Scrutiny (1)---------------.

(2) ------------.

(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that-- (a)the candidate is not qualified to be elected as a member; (b)

6. (c)..........

7. (d).......... provided that

(i) ..........

8. (ii).............

9. (i.e) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, and shall not reject a nomination paper on the basis of any entry in the electoral roll which contains an obvious error or defect."

10. Section 17 relates to the powers exercisable by the Election Authority to ensure fair elections.

11. Subsection (i) thereof reads as follows:- Section 17(1) Election Authority to ensure fair elections, etc. "The Election Authority may issue such and exercise such powers including the power to review an order passed by an officer under the Ordinance of the rules, and make such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."

12. Subsequently, by Amending Ordinance XII of 1979, subsections (2), (3) and (4) were added to the section which reads as follows:- Subsection (2).--Nothing contained in subsection (1) shall be construed to mean that the Election Authority has power to enquire into any matter or pass any order in respect of anything relating to an election which can be called in question before an Election Tribunal by an election petition under this Ordinance.

13. Subsection (3).--Any petition or complaint referred to in sub--section (2) and pending with the Election Authority on the date of the commencement of the Punjab Local Government (Third Amendment) Ordinance, 1979, shall be deemed to have abated.

14. Subsection (4).--Notwithstanding the abatement of the petitions or complaints under subsection

(3) the Election Tribunal shall not be debarred from taking into consideration the matter agitated therein."

15. Note.---Subsection (2) above is more pertinent for the purpose this case.

16. Section 20 of the Ordinance lays down the qualifications of candidates and members. The relevant portion reads follows:- "Section 20.--A person shall be qualified to be elected as and to be, a member of an electoral unit of a local council, if,--

(a) .......

(b) he has attained the age of twenty-five years on the last day fixed for the filing of nomination papers; and

(c) his name, for the being, appears on the electoral roll of that electoral unit."

17. Section 24 of the Ordinance lays down the manner in which the election shall be questioned. It reads as follows:- Section 24--Election Petition.--(1) No election shall be called in question except by election petition.

(2) A candidate may make an election petition before the Election Tribunal challenging the election at which he was a candidate.

(3) The decision of the Tribunal on an election petition shall be final."

18. Section 25 empowers the Election Authority to constitute Election Tribunals for filing petitions under section 24 to challenge elections.

19. The Punjab Local Councils (Election) Rules, 1979 framed under the Ordinance provides the procedure for conduct of elections, while the Punjab Local Councils (Election Petition). Rules, 1979 (hereinafter called the Election Petition Rules), provide for the manner in which the election can subsequently be challenged. Rule 12 of the Election Petition Rules provides, that the Election Tribunal may, inter alia, declare the election of returned candidate to be void, while rule 13(1) provides the grounds on which the election of a candidate can be declared by the Election Tribunal to be void.

20. The relevant clause of this Rule, i.e. Clause (b) reads as follows:- "Rule 13(1).--The tribunal shall declare the election of the returned candidate to be void if it is satisfied that--

(a) ................

(b) the returned candidate was not, on the nomination day qualified for, or was disqualified, from, being elected as a member or Chairman or Vice-Chairman, as the case may be; or

(c) ....................

(d) --------------- "

21. It would be recalled that one of the necessary qualifications for a candidate is that he should have attained the age of 25 years on the, day of 'Scrutiny'.

8. Besides the above-mentioned provisions of the laws and the rules relating to conduct of elections' and filing and disposal of Election Petitions', a mention may also be made of the provisions of Electoral Rolls Act, 1974 and the rules framed thereunder. It is however, not necessary to reproduce them here and it would be sufficient to mention that these provide all elaborate procedure for preparation and finalisation of electoral rolls. In the first place preliminary electoral rolls are prepared which are duly published alongwith a notice inviting claims as well as objections and applications for correctness. Interested persons can then come forward and may either claim that their names may be included in the electoral rolls, or object to the inclusion of the names of other persons in the voters list of a particular constituency on grounds permissible under the said Rules. Similarly persons whose names have been included but there is some mistake in any entry relating to any particular about them, may apply for correctness of such mistake in the preliminary electoral rolls. Such claims, objections and applications for corrections have to be filed on prescribed forms and within the period prescribed for this purpose. Thereafter, the competent officer may, after making due enquiries and giving the parties sufficient the to prove the correctness of their assertions, make the requisite additions, deletions, modifications or corrections, as the case may be. It is there--after that the final Electoral Rolls are published. Since some changes may take place from the to the, provision has also been made in the said Act for annual revision of the electoral rolls and even for the enrolment of new voters at times other than the annual revision.

22. No doubt, as observed by the High Court in the judgment under consideration, the object of the elaborate exercise and procedure under these provisions is to correctly name and describe the persons who are found to be qualified to vote in the election of a certain constituency or electoral unit. It amounts to certifying, inter alia, that at the relevant the the person in question had attained the age of 21 years. It is, therefore, that the High Court held that finality to the entry of the age of a person whose name appears in the Electoral Roll attaches only so far as it has a bearing on his being qualified to be a 'voter' and for no other purpose.

23. It may be mentioned that these observations are based on the majority view in Full Bench case in Muhammad Tufail v. Muhammad Salim and others PLD 1967 Kar.. 10, wherein the same question had arisen in relation to the law then prevailing, i.e. Section 8 of the Electoral College Act (IV), 1964 read with proviso (i.e) to section 23(3) of the said Act and Articles 156, 157 and 158 of the 1962 Constitution. A dissenting judgment was, however, recorded by Mr. Justice Qadeeruddin.

9. We have carefully considered the contentions raised by the appellant's counsel and gone through the impugned judgment. We have also had the benefit of going through the majority as well as the minority views expressed in the case of Muhammad Tufail PLD 1967 Kar..

104. We now proceed to record our own view on the matter.

24. 9-A. As arleady observed earlier, section 20 of the Ordinance, lays down the qualification of candidate provided that (besides being a citizen of Pakistan) he must have:

(i) attained the age of 25 years on the last date fixed for filing the nomination papers, and

(ii) his name must appear on the electoral roll of the electoral unit from which he seeks election.

25. Rule 13 of the Election Rules, 1979, provides that every candidate to the election must file nomination papers duly signed by to other voters from the same electoral unit as his proposer and seconderer.

26. A date is then fixed by the Returning Officer, under rule 15 of the Electoral Rules, for the secutiny of these nomination papers, on the date so fixed, all the candidates, their election agents, proposers and seconderers may attend the scrutiny proceedings, and would be given reasonable opportunity for examining the nomination papers delivered to the Returning Officer by various candidate. The Returning Officer shall then, in the presence of persons attending the scrutiny, proceed--ings examine the nomination papers and decide the objections raised with regard to any of the nomination papers.

27. Sub-rule (3) of the rule 15 of the Election Rules provides that while scrutinizing the nomination papers "the Returning Officer may conduct such summary inquiry as he may think fit" and may reject a nomination paper if he is satisfied inter alia, that "candidate is not qualified to be elected as a member".

28. Since one of the qualifications that a candidate is required to have is that he has attained the age of 25 years by the date fixed for filing nomination papers it would naturally mean that the Returning Officer should ascertain this fact. He is indeed authorised to conduct a summary inquiry in this connection, by clause (a) of rule 15(3) of the Election Rules. But, at the same the, proviso (i.e) to the same Rule (i.e. Rule 15(3) of the Election Rules), which is mandatory in nature, lays down, inter alia that the Returning Officer shall not inquire into the correctness or validity of any entry in the electoral rolls. This would mean that if the Returning Officer makes an inquiry under clause (a) to rule 15(3) he would be guilty of contravening the mandatory provision of proviso (i.e) of the said sub-rule.

29. As such there is an apparent contradiction between these -to provisions. While clause (a) of sub- rule (3) of rule 15 permits the Returning Officer to make a summary inquiry to determine whether r candidate has attained the requisite age (25 years), proviso (i.e) to the same sub-rule categorically prohibits him for inquiring into correct--ness of any entry, inter alia, with regard to the candidate's age. In other words the Returning Officer can either follow one or the other provision, which means that one of them would be rendered redundant.~ However, the function of the Court, while interpreting various) provisions of a Statute, is to interpret them in such a manner asreconcile them and make them consistent with each other in order t a, ensure that none of them is rendered redundant.

10. For the proper construction of the provisions in question, however, one must understand the policy underlying the Election Laws and Rules of 1979, specially as man 'Tested by certain amendments made therein from the to the.

30. The purpose of the entire exercise provided by the Election Laws beginning with the preparation of the Electoral Rolls and ending with the announcement of Election results is to hold elections in order to enable the voters to choose their representatives for the purpose of carrying out the Local Bodies or to the Provincial or Central Legislatives, as the case may be. This (purpose) constitutes the very foundation of the democratic process, as envisaged at present. All the measures in the Election Laws and Rules framed thereunder are directed towards this purpose and every effort has been made (by the Legislature) to ensure that nothing should impose the holding of elections. The law provides that it is only after the elections are.-over, that they can be challenged in a forum specifically provided by he said law itself and that to only on the grounds enumerated in the relevant rules. A1 provisions of the Punjab Local Government Ordinance, 1979, and the Rules framed thereunder must, therefore, be read in the light of the all-pervading intention. It is indeed envisaged that the conduct o1 elections should be fair and honest and that is why the Election Authority has been given vast powers under section 17(1) of the Ordinance for ensuring that dishonest, unjust or unfair means are not used during the conduct of the election. As held by this Court in the case of Malik Muhammad Aslam 1982 SCMR 108, the election "cannot be expected to stand by as on idle spectator" and can interfere in the process of elections whenever any dishonesty, illegality or malpractice etc., brought to the notice during the conduct of the elections. The power of the Election Authority under section 17(1), however comes to an end after the result of the election is announced, and from then onward; it is only the Election Tribunals set up under section 25 of the Local Government Ordinance, 1979 which, when moved by an appropriate person, can go into the question of the validity of the election of an3 particular person from any Electoral Unit and has the power to declare it void. This division of powers to deal with pre and post Election Complaints arose from the addition of three more subsections, .i.e, subsections (2), (3) and (4) which were added to section 17 of the Punjab Local Government Ordinance, 1979, by Ordinance XII of 1979, These have already been reproduced in paragraph No. 7 above. The reason for adding these subsections and the consequent division o1 powers is obvious. It would be recalled that the (first) elections to the Local Bodies under Ordinance XII of 1979 took place on 25-9-1979, while these subsections were added to section 17 of the Ordinance (through the 3rd Amendment), on 29-10-1979, i.e., about a month after the elections were over. The successful candidates had been notified 20 days earlier, on 9-10-1979 and it appears, that within those 20 days after the results were announced, a number of aggrieved persons i.e. The defeated candidates or their party men, had filed complaints before the Election Authority under section 17(1) of the Ordinance, instead o1 resorting to the Election Tribunals through Election Petitions. Apparently it was to rectify this situation that the above noted provisions i.e. Subsections (2),(3) and (4) were added to section 17 of the Punjab Local Government Ordinance (XII) 1979. This view is reinforced by the provision of the newly added subsection (3) of section 17, which lays down that any complaint under subsection (1) of section 17 Pending before the Election Authority on the date of the commencement o Ordinance XII of 1979 (i.e. On 29-10- 1979) shall be deemed to haveabated.

31. The net result of this amendment was that while the Election Authority was given extensive power to ensure impartiality, honesty and fairness while the elections were being conducted, it (i.e. Election Authority), became functus officio after the elections were over, and the validity of the elections could then be challenged by aggrieved persons only through election petitions, on grounds which during the pre-election period could be made the basis of complaints to the Election Authority under section 17(1).

32. Keeping in view the fact that the main purpose of Election Laws is to ensure that the elections are held in the country and democratic process is allowed to take its course, the provisions of the relevant sections of the Ordinance of 1979 and the Rules made thereunder should be so construed as not to create any impediments in the holding of the elections and to ensure their conclusion, once the process had begun. This view is also supported by the wording of the second proviso (11) to rule 15(3) which reads as follows: "Proviso (ii) to Rule 15(3)-- the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature' and may allow any such defect to be remedied forthwith, such an effort in regard to the name, serial number in the electoral roll or other particulars of the candidate, his proposer or seconderer;"

11. We now proceed to consider the construction of the provisions of proviso (i.e) to rule 15(3) of the Election Rules, 1979.

33. It would be noticed that the said Election Rules lay down the procedure for conduct of elections, which includes, inter alia, the filing of nomination papers by the candidates and the 'scrutiny' thereof by the Returning Officer. It is, therefore, evident that scrutiny of nomination papers is a part of the conduct of elections. Consequently the Election Authority has the power o control over it under section 17(1) of the Punjab Local Government Ordinance, and could review the orders of the Returning Officer relating to 'scrutiny'.

34. The process of 'scrutiny' has been dealt with by rule 15. As already mentioned, on the date fixed for this purpose, the Returning Officer is empowered to look into the objections made against nomination papers by the opposing candidates. The grounds of objections are mentioned in various clauses of sub rule (3) of Rule 15, Clause (a) of this sub-rule provides that nomination paper may be rejected on the ground that the candidate is not qualified to be elected as member.

35. One of the reasons for holding that he is not qualified could be that he has not yet attained the age 25 years. Sub-rule (3) of rule 15 provides that before rejecting a nomination paper of any candidate on this or any other ground the Returning Officer may make such summary inquiry as he thinks fit.

36. But proviso (i.e) to the said sub-rule gives a mandatory direction to the Returning Officer that he shall not inquire into the correctness or validity of any entry in the electoral roll.

37. As already observed, there appears to be a contradiction between the above noted to provisions.

38. On the one hand the Returning Officer has been authorised to make a summary inquiry, inter alia, into the question of candidate's age, to see whether or not he or she has attained the age of 25 years, but on the other hand proviso (i.e) to the same sub-rule gives a mandatory direction that the Returning Officer shall not inquire into the correctness or validity of any entry, inter alia, with regard to the candidate's age, in the electoral.

39. But we are of the view that this contradiction is more apparent than real. What is envisaged is that when an objection is raised that a candidate is below 25 years of age, the Returning Officer must satisfy himself in this respect. In view of the provisions of clause (a) read with proviso (i.e) of sub- rule (3) of rule 15, it is obvious that what he is required to do is to accept the entry in the Electoral Roll with respect to his age (be it entered as being above or b6ow 25 years), to be correct and not to go behind its validity or-1correctness, and decide the matter accordingly. It is apparent that` while the Returning Officer can make a summary inquiry about any other objection i.e. Any objection mentioned in clauses (b),(c) and (d) of Rule 15(3), he is barred from questioning the correctness of the entry regarding the candidate's age and must accept it as correct. In other words, if the candidate's age, as entered in the election roll, is below 25 years he shall accept it to be correct and reject the nomination paper (except when a candidate has attained the requisite age since the preparation of the roll, as in the present case). The provisions of the Election. Rules, 1979, must be construed by the Court in accordance with the principle already enunciated, namely that the obvious intention of the Legislature is that the elections must be allowed to proceed, unhindered by any technical objection and that any inconsistency between the provisions of the Law or the Rules made thereunder should be resolved as to ensure that the democratic process of the election is completed and not permitted to be impeded. This view is supported by a significant difference between the earlier law, i.e. Proviso (i.e)section 23(3) of the Electoral College Act (VI), 1964 and, proviso (iiij of rule 15(3) of the 1979 Rules. In the earlier law the provisoquestion reads as follows:- Proviso(i.e) to section 23(3).--"The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."

40. But in the present law it reads as follows:- "Returning Officer shall not enquire into the correctness or validity of any entry in the Electoral Roll, and shall not reject a nomination paper on the basis of an entry in the Electoral Roll which contains an obvious error or defect,.

41. [Note: The underlining is ours].

42. It is obvious that the framers of the present Election Rules of 1979(who were aware of the relevant provisions of the earlier Rules) had intentionally added the above noted underlined portion to proviso (i.e), in order to make it doubly sure that the Returning Officer shall not reject any nomination paper on the basis of an error or defect in the entry of the Electoral Rolls, even if he finds one. In other words, he must proceed on the assumption that the entry is correct and must accept the nomination paper even if the candidate obviously looks to be much younger. This view is further strengthened by the fact that Rule 16 of the Election Rules, 1979, provides an appeal only against the rejection of a nomination paper but not against its acceptance. This indicates that the intention of the Legislature was that a candidate should be permitted to contest elections rather than placing hurdles in his and preventing him from contesting it by finding some fault in the nomination papers.

43. In Muhammad Tufail's case PLD 1967 Kar.. 104, the learned Judges who delivered the majority judgment proceeded on the argument that since a very elaborate procedure had been provided by the Electoral Roll Act, 1964, for preparation of Voters List, and since the purpose of preparing Voters Lists is to determine and particularise the persons who have a right to vote in the elections and not to determine whether they are qualified to contest the election, a presumption of correctness shall attach to their age, as entered in the voters list, only as far as their right to vote is concerned and not with regard to their qualifications as a candidate for the election. It is on this premises that the learned Judges held that the embargo placed by proviso (i.e) of rule 15(3) of the Election Rules, does not bar the Returning Officer, while scrutinising a candidate's nomination paper, from making inquiry into the correctness or validity of an entry regarding his age. We are, however, of their view that to place this construction on the rule in question, apart from being contrary to the general principle of interpretation of Election Laws, mentioned above, fails to attach due importance to the fact that the prohibition contained in proviso(i.e) is mandatory in nature and H that it is during the proceedings relating to the 'scrutiny' of the nomination papers of a candidate who intends to contest an election, that the Returning Officer has been barred from entering into an inquiry about the correctness or validity of an entry relating to the electoral rolls, including that of the candidates (and not the voters) age.

44. In this respect we are inclined to respectfully agree with the view taken by Mr. Justice Qadeeruddin who recorded the minority judgment in the case of Muhammad Tufail (supra) relevant portion whereof reads as follows:- "Proviso (i.e) to subsection (3) of section 23 of the Electoral College Act; 1964 means exactly what its words are that is; "the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll."

45. "The unambiguous language of the Act makes the entry of the age in the electoral roll serviceable firstly for the purpose of discovering the qualified voters and secondly for the purpose of discovering those of them who possess the qualification of age for being candidates. It serves both purposes but necessarily at different states of the proceedings of election. It is final at the the of the scrutiny of nomination papers because the language of the law makes it so unambiguously.

46. The language of proviso (i.e) to subsection (3) of section 23 of the Electoral College Act, 1964 is plain and admits of one meaning only.

47. If the language is plain and admits of one meaning only and if the entry is relevant for the purpose of determining the age of a candidate, then the strongest pillar that is yet left to support the view that the entry of age is open to scrutiny by the Returning Officer is that the electoral roll is prepared solely or primarily with the object of making available a list of voters only. There is not much strength in this support because the entries made in the electoral roll could and have been made by law to serve more purposes than one.

48. No doubt, ordinarily the purpose of an electoral roll is to provide an authentic list of voters, but supposing a warning is added in the provisions of law (in pursuance of which the electoral roll is prepared) to the effect that the age entered in the roll will be used for determining the qualifications of candidates also will then the argument founded on the purpose of the roll still hold good. The Electoral College Act, 1964, in terms of Chapter IV of which the electoral roll in question was prepared contains such a warning because it is laid down in proviso (i.e) to subsection (3) of section 23 of Chapter V of that Act that while scrutinizing the nomination papers of candidates, the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll. In the presence of this warning, the argument does not sound satisfactory that merely because electoral rolls are generally prepared for providing a list of qualified voters, the electoral roll in question should, for that reason, be taken to have been prepared with that sole purpose only. The warning has been so abundantly clear in this Act that, no candidate has yet complained that he was misled into omitting to object to the entry of his own age or that of any other entrant; nor has any candidate complained that for such a reason. He omitted to mention his own correct age when he applied in Form IV for the inclusion of his name in the rolls, or omitted to mention the correct age of any other candidate when he objected to the inclusion of another candidate's name by submitting Form V. The intention with which entries were made in the electoral roll is to be gathered not only from Chapters III and IV of the Electoral College Act, 1964 but equally well from the provisions of section 23 of the Act which occurs in Chapter V of it .......... If I am right in this view, then the argument that the electoral roll was prepared merely to provide a list of qualified voters is contradicted by the provisions of the law themselves."

12. It may be mentioned that the learned counsel for the respondent supported the view taken by the High Court, namely that notwithstanding proviso (i.e) to subsection (3) of section 15 of the Punjab Local Council (Election) Rules, 1979, the Returning Officer could enter into an inquiry and ascertain, through independent evidence, as to whether the candidate had attained the age of 25 years and was thus qualified to contest the election. In support of this submission he relied on the following authorities:- (1)Imtiaz Ali v.Ghulam Muhammad Butt PLD 1958 SC 228.

49. (2)Syed Ainuddin Chowdhury v. The Election Tribunal, Chittagong PLD 1968 SC 235.

50. (3)Umar Draz Khan v. Muhammad Yousaf and others 1968 SCMR 880.

51. (4)Serajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5.

52. (5)Muhammad Tufail v. Muhammad Salim and others PLD 1967 Kar.. 104.

53. (u)Punjab Local Councils Election Authority, Lahore v. Malik Muhammad Aslam and another 1982 SCMR 1086.

54. (7)Ghulam Younis Khawaja v. Malik Faizullah and another 1969 SCMR 183.

13. We have considered the above noted authorities but are of the view that none of them is applicable to the facts in the present case.

55. Imtiaz Ali's case PLD 1958 SC 228 deals with the interpretation of the relevant provisions of the earlier law relating to Local Bodies Election, i.e. The Punjab District Boards Election Rules, 1952. The point involved in that case was entirely different from the one involved in the case in hand. In that case Ghulam Muhammad Butt and Imtiaz Ali had contested election for a seat in the District Board Sialkot, from Circle No.41 Narowal. Imtiaz Ali was defeated. He, therefore, filed an election petition under rule 57 of the Punjab District Boards Rules, 1952, wherein, apart from the allegation of bribery and impersonation etc. , he made 3 specific allegations to the effect that the electoral rolls had not been properly prepared. Out of these the third allegation, which was material for the purpose of that case, was that although Village Maujoki-Bhet did not fall within the area comprising Circle No.41, yet. The names of a large number of residents, of that village entered as voters in the electoral list pertaining to Circle No.41, with the result that about 100 votes were wrongly cast by the residents of Maujoki-Bhet in favour of Ghulam Muhammad Butt, it the election of that Circle, and prayed that the same should, therefore, be declared as void.

56. It was contended by the opposite side that after the electoral list was finally prepared in accordance with the relevant rules, its correctness could not be challenged and that the persons whose names appeared in the list as voters in a certain Circle (or constituency), could validly cast their votes in that circle.

57. The matter ultimately reached this Court, and it was while considering this question that it was held that no objection was over made to the inclusion of the names of the concerned persons in the electoral rolls when the same were prepared, revised and duly published and, as such, no further objection could be taken to the electoral rolls and election was to be held on the assumption that the entries therein were correct, and it was observed further that "it is settled that every person whose name in entered in the electoral rolls is entitled to vote at the election to which the roll relates, unless there be some personal disqualification".

58. In this case the learned counsel relied on to English Judgments, namely, Stowe v. Jolliffe L R C P 1874 P. 784 and Pembroke Borough's case 50 M & H 135. But those judgment have only held that an entry in voters list is final as far as it concerns .The right of a person, whose name is entered therein, to cast his vote.

59. It is clear from what has been stated above that the case of Imtiaz Ali PLD 1958 SC 228 did not relate to the question of the qualifications of a candidate regarding his age or as to whether or not the Returning Officer could go behind the correctness of the entry relating to his age, as contained in the electoral roll. As is evident from the discussion on page 241 of the report, that judgment deals only with the finality of an entry in the electoral roll as far as the right of a person, whose name is entered therein as a voter, to cast his vote (in contra-distinction to the right of such a person to contest elect as a candidate). The judgment in Imtiaz Ali's case is, there ore, not applicable to the present case.

14. In Syed Aminuddin Chowdhury alias Syed Ainuddin Chowdhury v. The Election Tribunal Chittagong, etc. PLD 1968 SC 235 the facts were that Syed Aminuddin filed an election petition challenging the validity of the election of Khurshid Alam, the successful candidate, on the ground that he (i.e the successful candidate) was not entitled to be enrolled as a voter in Unit No.5, as he did not reside within the area comprising Electoral Unit No.5.. His election petition succeeded, whereupon Khurshid Alam filed a writ petition which was accepted and the order of Election Tribunal was set aside. Syed Aminuddin thereupon filed a petition for leave to appeal and leave was granted to consider the following question:- "Whether the High Court was right in holding that an entry in the electoral roll prepared under the Electoral College Act was final, not only against the powers of a Polling Officer or a Returning Officer, but also against the jurisdiction of the Election Tribunal to decide whether the person concerned was entitled, on the ground of residence to have his name entered in the electoral roll of a particular Unit." .

60. Facts of this case are, in fact, similar to those in the case of Imtiaz Ali (Supra) and the question was decided by holding that a person whose name has once been entered as a voter in the electoral list of a certain constituency, even if he did not reside within the area comprising that constituency, he could not be deprived of his right to vote. This finding was arrived at on the ground that a very elaborate procedure had been provided by the Electoral College Act, and the rules framed thereunder, for the preparation of electoral rolls.

61. In the question quoted above it has been assumed that an entry made in the electoral roll prepared under the Electoral College Act, was, no doubt, final in so far as the powers of a Polling Officer or Returning Officer are concerned. Leave was granted in order to examine further the question whether such an entry was final even qua the Election Tribunal. The answer rendered to the second question was that if a person's name is entered in the electoral roll maintained under the law, and if he is not under any statutory disqualification, he becomes, ipso facto, qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualification. This answer we feel did not dilute the effect of the assumption made in the afore-quoted question namely that the Polling Officer or the Returning Officer had no jurisdiction at all to alter an entry made in the electoral roll prepared under the Electoral College Act. As assumed in the question it was final. This finds support from the following observation made at page 239:- "This exhaustive reference to the relevant provisions of the Electoral College Act and the rules framed thereunder, has been made for the purpose of showing that the intention of the Legislature was to finalize the electoral roll by the actions taken by the Registration Officer and the Revising Authority.

62. This also finds support from proviso (i.e) of section 23 of the Act which says 'the Returning Officer shall not enquire into the correctness or validity of an entry in the electoral roll'".

63. Apart from the foregoing consideration it cannot be ignored that the entire question before the Court in this case (Aminuddin's case) was regarding the powers of the Election Tribunal when hearing an election petition after the declaration of the result of the election. This question is not before us and accordingly the case of Aminuddin also is distingu--ishable.

15. It would, however, be useful to mention here that under the law as it stands at present, rule 13(1) of the Punjab Local Council (Election) Rules, 1979, specifically, provides that the Election Tribunal shall declare the election of a returned candidate void if it is satisfied, inter alia, that the returned candidate was not, on the nomination day qualified for or disqualified from, being elected as a member, or Chairman or Vice-Chairman as the case may be.

64. As already mentioned, one of the qualifications of a candidate as laid down by section 20 of the Punjab Local Government Ordinance, 1979, is that he has attained the age of 25 years on the last day fixed for filing the nomination papers.

65. In other words the law, as it stands at present, actually provides' that the Election Tribunal can go into the question of the correct age of a candidate on the relevant date. Aminuddin's case PLD 1968 SC 235 is, therefore, not applicable to the present case.

16. In Umar Draz Khan v. Muhammad Yousaf and others 1968 SCM R 880, the facts were that Umar Draz was elected to the Union Committee from a constituency in Lyallpur (Faisalabad) City and was thereafter elected as Chairman of the same Committee. The defeated candidate, namely, Muhammad Yousaf challenged his election through an election petition before the Controlling authority/ Election Tribunal on the ground that on the relevant, date age of Umar Draz was less than 25 years. '1 'he Election Tribunal/ Controlling Authority, however, dismissed the said petition on the ground that it had no jurisdiction to declare that the election was void as he was not member of the Electoral College on the relevant date. Muhammad Yousaf then moved the High Court which accepted his writ petition. Thereupon Umar Draz filed a petition for leave to appeal and leave was granted to consider whether the Election Tribunal/ Controlling Authority was competent to enter into the question whether or not the successful candidate was qualified to be a member of the Electoral College, i.e. Whether or not he had, inter alia, attained the age of 25 years.

66. After considering the case law it was held by this Court that:- " ..There can be no doubt that in an election petition the Tribunal is competent to enquire if the successful candidate possesses the qualifications as laid down in the Constitution or not."

67. [Note: The underlining is ours] It was held further that the Controlling Authority (Election Tribunal) was not justified in dismissing the election petition on the ground that it did not possess the jurisdiction to enter into the aforementioned question.

68. It may be mentioned here that the controversy in the present case is not whether the Election Tribunal has the jurisdiction to go to the question of candidate's age, but as to whether or not a Returning Officer was authorized to enquire into the validity of an entry of a voter's age in the electoral list. As already mentioned above in paragraph No.15, the Election Tribunal is, in so many words, required by Rule 13(1) of the Punjab Local Council (Election) Rules, 1979, to declare the election of a returned candidate as void, if, inter alia, it found, after inquiry, that he is not qualified to be a candidate (which h would not be if he had not attained the age of 25 years). As such th judgment in Umar Draz's case is not contrary to the view taken in the present case.

17. The case of Serajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5 was also a case under the old law, namely, Electoral College Act, 1964.

69. In that case an election petition was filed against the successful candidate. When the matter came up before the Supreme Court the contention was "that the Tribunal could not go behind the entry of age in the electoral rolls". Leave was granted to consider "whether the Election Tribunal was competent to inquire as to the age of a person whose name was brought on the electoral roll after inquiry on the point."

70. It was held that it was competent for the Election Tribunal to inquire as to whether or not a candidate had attained the age of 25 years (which was the qualification required by Article 157 of the 1962 Constitution). The relevant observation reads as follows:- " ....We came to the conclusion that if a person who did not possess the qualification laid down in the Constitution regarding age got himself elected and his rival failed to object to the entry as to his actual age when the electoral roll was prepared or to object to his nomination, the latter would not be debarred from challenging the former's election under section 58 of the Act."

71. We may observe that in Serajul Islam's case what the Court considered was the power of the Election Tribunal to go into the age candidate. This proposition is not disputed in the present case because the provisions of Rule 13(1) of the Election Rules, 1979, empower an Election Tribunal to go into the question, when raised before it.

72. It is pertinent to note that the power of the Returning Officer to make an enquiry into the correctness of the entry in the voters-list regarding a candidate's age was not at all an issue in that case.

73. It may also be mentioned here that although case of Muhammad Tufail v. Muhammad Salim PLD 1979 Kar.. 104, was referred to by the Court in this judgment and the majority as well as the minority view was mentioned, but neither was specifically approved.

74. From the above discussion it is obvious that the case of Serajul Islam, to, is not relevant for the decision of the case in hand.

18. The case of Ghulam Younis Khawaja v. Malik Faizullah and another 1969 SCMR 183, is also under the Electoral College Act, 1964. In this case the election of the successful candidate was challenged before the "Election Tribunal" on the ground that his proposer was not qualified to be a voter as he was below the prescribed age of 21 years although his name appeared in the electoral roll.

75. Leave was granted to consider: "Whether the fact of enrolment confers all rights belonging to a voter including the right to propose another for membership, despite the existence of a proved personal disqualification in the person enrolled."

76. In other words the question involved in this case was an altogether different one, i.e., as to whether or not the entry of age of a voter as mentioned in the electoral list could be questioned. We have no dispute with the proposition that in view of the elaborate procedure provided for the preparation of electoral lists mentioned in paragraph No.8 of this judgment, entries relating to age of a voter becomes final and as such the right of a person whose name is entered in the electoral roll to cast his vote (or to propose a candidate) cannot be questioned on the ground that his name was wrongly entered therein.

77. It is, thus clear that this authority, to, does not advance the respondent's case.

19. As a result of the above discussion we are of the view that the Returning Officer was absolutely correct in refusing to go into the correctness of an entry in the Electoral Roll regarding the respondent's Candidate's age and accepting his nomination paper.

20. The next question to be considered is as to how far the Election Authority was justified in interfering with the order of the Returning Officer after making an independent inquiry into the question of Respondent-candidate's age in exercise of his powers under section 17(1) of Ordinance XII of 1979.

78. We have given our anxious consideration to this question. No doubt subsection (2) of section 17 places a bar on the Election Authority to inquire into any matter or pass any order in respect of anything relating to election which can be called in question before an Election Tribunal through an election petition and that one of these grounds is that the candidate had not yet attained the age of 25 years. But as held by this Court in the case of Malik Muhammad Aslam 1982 SCMR 1086 this embargo relates only to post election matters. Since the present case relates to 'scrutiny' of nomination papers which is a pre election matter, this restriction or bar would not apply to it.

79. The question, however, is whether the said Authority, who is merely a revising authority, could, while deciding this matter, do what the Returning Officer himself not empowered to do under the Law. In our view the powers of the Election Authority while reviewing the orders of the Returning Officer did not extend beyond those exercisable by the latter himself, because while examining the point in question, in exercise of its revisional powers, the Election Authority was subject to the same restriction as imposed on the Returning Officer by proviso (i.e) which as already observed is mandatory in nature.

80. It has been noticed above that an embargo has been expressly placed on the Returning Officer, barring him from questioning the validity or correctness of an entry relating, inter alia, to the age of a candidate as entered in the voters list. As such as already held by us, the Returning Officer had not committed any mistake or illegality in refusing to inquire into the correctness of the entry regarding the candidates' age and had, in fact, acted in accordance with law as contained in proviso (i.e) to Rule 15(3). We are, therefore, of the view that the learned Election Authority could not have held the order to be wrong on the ground that if a detailed inquiry had been made and the entries in the birth register relied upon, a different conclusion could have been reached, (as done by the said authority itself).

21. The upshot of the above discussion is that the decision in the case of Muhammad Tufail v.

81. Muhammad Salim PLD 1967 Kar.. 104, is overruled, the appeal is accepted, and the impugned judgments of the High Court as well as the Election Authority are set aside, with the result that the election of Emmanual Masih is declared to be valid.

82. SHAFIUR RAHMAN, J.--I had the benefit and the privilege of perusing with extreme care the judgment proposed to be delivered, as prepared by my learned brother Mr. Justice Aslam Riaz Hussain and concurred in by my another learned brother M.A. Zullah J. I have the utmost respect for their opinion and regard for their learning and experience in handling the subject. However, with all humility on my part, I have a different view which has prompted me to record a separate opinion as hereunder.

83. The Election Authority at the apex, howsoever designated, is invariably charged, consistently with the very object, the purpose and' the importance of the process of elections, with the duty of ensuring an honest, just and fair elections and is invested with all the enabling and remedial powers in that behalf. Article 218(3) of the Constitution, for example, empowers the Election Commission. "to make such arrangements as are necessary to ensure that the election is conducted honestly, justly, fairly and in accordance with law and that corrupt practices are guarded against."

84. To the same effect, though somewhat differently worded, is the provision empowering the Election Authority under section 17 of the Punjab Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance). It provides that-- "The Election Authority may issue such instructions and exercise such powers including the power of review an order passed by an officer under the Ordinance or the rules and makes such consequential order as may in its opinion be necessary for ensuring that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules."

85. The position of the Election Authority and its responsibilities in the matter have been brought out by this Court in The Punjab Local Councils Election Authority Lahore v. Malik Muhammad Aslam and mother 1982 SCMR 1086 in the following words:- "We note that the creation of a high powered authority like the Election authority which is to consist of three members and whose Chairman must be or has been a Judge of the High Court to ensure that an election is conducted honestly, justly and fairly in accordance with the provisions of the Ordinance and the Rules, is a recent phenomena in Election Laws, intended to see that in the conduct of elections there should be fairness, impartiality and honesty and that the provisions of the law are not violated. Thus, subsection (2) of section 17 does not appear to be a provision which was intended to restrict the general and plenary power of superintendence conferred by section 17(1) of the Ordinance and there appears to be force in the submission that the interpretation placed by the Division Bench of the High Court ousting the jurisdiction of the appellant Election Authority to take any remedial action until after the election has taken place i.e. When the result of the poll has been notified under Rule 41(2) of the Punjab Local Councils (Election) Rules, 1979 would appear to defeat the mandate of the law given in section 17(1) that the Election Authority must see "that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and Rules". On the interpretation given by the learned Judges of the Division Bench, the appellant Authority would cease to have jurisdiction in the conduct of the elections and all illegalities and irregularities committed during the course of the elections would not be amenable to correction by the Election Authority."

86. Where such is the composition of the Election Authority, s clear the mandate of law, and no public and publicized its functioning, it cannot, unless the compulsions of law leave no options be made a helpless onlooker, enjoined to countenance manifest illegalities with the only available apology that they can be taken care of and dealt with a a subsequent stage, in a different proceeding, at a more leisurely, pace, and in the interregnum the consequences of such manifes illegalities and fruits thereof should remain available to these ex facie,. Not deserving of it. How all this happens will appear clearly when deal with the various entries of the electoral roll and their effect on the working of the system. Before that the law, the principles and the precedent must be noted and reconsidered.

87. The Ordinance by its section 17 while conferring on the Election Authority a duty to ensure that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules provides in section 20 the qualifications and in section 21 the disqualifications of candidates and members. The qualifications in section 20 require that a person shall be qualified to be elected as and to be a member of an electoral unit of a Local Council if, inter alia, he has attained the age of 25 years on the last day fixed for filing of nomination papers and "his name for the the being appears on the Electoral Roll of that Electoral Unit".

88. The Election Rules cast a duty on the Returning Officer, and in turn on the Election Authority, under Rule 15 sub-rule 3(a) on his own motion or upon any objection to reject a nomination paper if he is satisfied that the candidate is not qualified to be elected as a member This implies that the statutory qualifications and disqualifications prescribed have to be observed and satisfied and their satisfaction has to be ensured at the the of the scrutiny of the nomination paper by the Returning Officer The third proviso to this rule enjoins that "The Returning Officer shall not inquire into the correctness or validity of any entry in the Electoral Roll and shall not reject a nomination paper on the basis of an entry in the Electoral Roll which contains an obvious error or defect."

89. The law lays down the qualifications and the disqualifications. The law commands the Election Authority to ensure that "an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the rules". The rules by their enacting provision strengthen conformably with the statutory provision, the duty of the Returning Officer, and on the strength of section 17(1) of the Ordinance, of the Election Authority, to reject at the stage of scrutiny, the nomination paper of the candidate who is not qualified to be elected as a member. In this context the proviso to the rule cannot on any principle of interpretation or ascendency be allowed to override, nullify or whittle down the statutory provisions or their effect. Simply because the rules are mentioned alongwith "the provisions of the Ordinance" in section 17(1) it does not imply that the rules are raised to the level of the Ordinance, can override or contain the provisions of the very statute under which they are framed. A proviso to a rule cannot achieve this. Hammond in his book "The Indian candidate and the Returning Officer (1923) has exhaustively examined the question of finality of the entries of the Electoral Roll, the eligibility or the ineligibility of the candidates filing their nomination paper and the powers of the Returning Officer in examining and scrutinising it. At page 19 after a review of the law on the subject then applicable it was remarked "The orders of therevising authority, therefore, are final. Neither the Returning Officer nor the Presiding Officer nor an election Court will inquire whether a name has been improperly admitted in the electoral register. It will, however, be the duty of each of these authorities to see that persons who are prohibited from voting (or from standing as a candidate) do not evade such prohibition.

90. The Presiding Officer must, we shall see, take steps to see that only those persons vote, whose names are on the electoral roll."

91. Further, at page 101 that "it is not his duty to judge whether the candidate is eligible; it is, however, his duty to see whether the candidate is ineligible The Returning Officer must, therefore, satisfy himself that the candidate is not ineligible on any of the following grounds:- (1)------------------------- (2)------------------------- (3)------------------------- (4)----------------------- (a)----------------------- (b)----------------------- (c)------------------------ (d)------------------------- (e)-------------------------

(f) the candidate is under 25 years of age. This would be a question of fact to be decided by the Returning Officer with or without any summary inquiry."

92. The certainty of the law on the subject and the background of such an interpretation was highlighted by this Court, in the case of Imtiaz Ali v. Ghulam Muhammad Butt PLD 1958 SC (Pak.,)

93. 228.

94. Rule 12(3) of Punjab District Board Election Rules provided as follows!-- "Every order of revising authority whose effect was being examined provided that every order of revising authority under sub-rule (1) which is not set aside under sub-rule (3) and every order passed in revision by the Deputy Commissioner under sub-rule (2) "shall be final and shall not be called in question either by the Commission appointed under Part IV of these Rules or by any Court."

95. Under Rule 57 of the District Board Rules the Government had the power to appoint a Commission of Inquiry for adjudicating on election petitions, It was substitute for a Tribunal. The law laid down with regard to the sanctity of the entries of the Electoral Roll by this Court was in very peremptory words and was as follows:- "This view is based upon a settled principle of election law that Election Commission cannot go behind the final electoral rolls as amended in accordance with the final orders of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification."

96. The Court concluded by saying that-- "It is unnecessary for our purpose to refer to any these cases as the rule is very-well settled and in our opinion complete effect is given to it by the provisions of rule 12 of the District Board Election Rule which apply in the present case."

97. On facts, in that case an inquiry had been ordered by the Government into an allegation under Rule 69 and the objection was that the names of voters resident in village Moujo-ki-Bhet were wrongly included in the electoral roll for Circle No.44 and on that account the election stood vitiated. This Court held that the point could not be raised at any stage after the finalization of the electoral roll of Circle No.41. Neither the Returning Officer nor any other officer in the hierarchy or the Tribunal or the Commission of Inquiry or an officer appointed by the Government to conduct an inquiry could go into that question the finality of the electoral roll being all pervasive. This was so because there was involved no statutory disqualification of the candidate.

98. Next, in the case of Syed Ainuddin Chowdhury v. The Election Tribunal, Chittagong (PLD 1968 SC 235) the, same background of law and the compatibility of the provisions of law, namely, finality of the entries of the Electoral Roll and the power of the Returning Officer or of the Election Tribunal to enforce and satisfy them self as about the qualification of the candidates filing nomination paper was emphasized.

99. An election petition had been filed before the Tribunal on the ground that the successful candidate was not entitled to be enrolled as a voter in the unit from which he was elected. Now to provisions of the law were referred to for deciding this question. There was proviso (i.e) of section 23 of the Electoral College Act of 1964 providing that.

100. "The Returning Officer shall not inquire into the correctness or validity of an entry in the Electoral Roll".

101. There was then sub-rule (4) of Rule 14 of Electoral College Rules which provided that the decision of the Revising Authority shall be final. This Court held as follows:- "The electoral roll as revised by the Revising Authority would therefore, be binding on the Tribunal except as regards statutory disqualifications. In other words, it a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications.

102. The Court went on to observe "This view also finds support from a large number of reported decisions. Some of these decisions while interpreting similar provisions in the Order-in-Council and rules made under the Government of India Act, 1919, held that the electoral roll was final not only so far as the Returning Officer was concerned but also for the Election Commissioner."

103. The Court concluded by observing as follows - "If a successful candidates name has been entered in the electoral roll and remained there up to the the of nomination his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications. The Election Tribunal had, therefore, no jurisdiction to enquire into the question whether the name of the respondent Khurshed Alam should or should not have been in the electoral roll of Unit No.5".

104. In the case of Umer Daraz khan v. Muhammad Yousaf and others (1968 SCMR 880) statutory provisions were similar and they were proviso (i.e) of section 23 of the Electoral College Act and 14(4) of the Electoral College Rules. The question examined was whether the electoral roll become final and conclusive as to the qualification of the person whose name is entered there and that the Election Tribunal will, therefore, be precluded from enquiring into the question of his possessing necessary qualification as a candidate in the election. The question was with regard to the qualifying age of the candidate. After noting the divergence of the opinion in the High Court on this question, reliance was placed on the decision in Ainuddin Chowdhury's case for holding that:- "If a successful candidate's name has been entered in the electoral roll and remained there up to the the of nomination his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications".

105. In the case of Sirajul Islam Khan v. Ahsan Ali Mondal (PLD 1969 SC 5) the contention was that as the age entered in the electoral roll of the successful candidate was 72 years it was final and could not be re-determined. Referring to another decision which was approved the following mention was made- we came to the conclusion that if a person who did rot possess the qualification laid down in the Constitution, regarding age got himself elected and his rival failed to object to the entry as to his actual age when the electoral roll was prepared or to object to his nomination, the latter would not be debarred from challenging the former's election under section 58 of the Act".

106. This recognizes an opportunity for objecting on the ground of disqualifi--cation even at the stage of scrutiny of nomination paper. The opinion which received approval was of the majority recorded in Muhammad Tufail v. Muhammad Salim and others (PLD 1967 Kar.. 104) observing as follows - "Two of the learned Judges (Waheeduddin Ahmad and Anwarul Haq, JJ.) took the view that the finality which attaches to the entries in the electoral roll must be confined to the object and the purpose for which the electoral roll is prepared, namely, to confer the right to vote on the basis of adult franchise as contained in Article 157 of the Constitution. The elaborate machinery in the Act and the rules for the preparation, finalisa--tion and revision of the electoral is directed towards one end and one end alone, namely, to ascertain whether a person is or is not qualified to be enrolled as a voter. They therefore found that the finality which attaches to the electoral roll and the restraint which is placed on the Returning Officer under the third proviso to the third subsection of section 23 of the Act must be interpreted to mean that the Returning Officer shall not question the right to vote of either the candidate or his proposer or seconder while scrutinising a nomination paper. If, however, an objection is raised regarding the fulfilment by a candidate of the requirement of age as prescribed by clause I of Article 168 of the Constitution it is incumbent upon the Returning Officer to satisfy himself that the requirement is in fact fulfilled and in doing so he can go behind the entry of age appearing in the electoral roll."

107. The reason why the date of birth or the age was not considered final and sacrosanct as regards the candidate appears from the following reasoning in this Court's judgment:- "So far as candidature for election to the Electoral College is concerned, Article158 of the Constitution says that a person in order to be a candidate from a particular unit must not only be a voter of that unit but also must not be below twenty-five years of age. This article, therefore, lays down to qualifications for a candidate. He is to be a voter of the unit from which he seeks election and must not be less than twenty-five years of age. The entries in the electoral roll are final so far as the first qualification is concerned. The roll is prepared in order to show who are the persons entitled to vote and the entries in the same are final and cannot be questioned so far as this right goes. In regard to the second qualification though in Form III under the head 'age' the actual age of the voter is recorded this entry cannot said to be final. Ascertainment of the actual age of the voter is not a necessity for the purpose of the preparation of the roll. It is enough if it is found that the person concerned is not less than twenty-one years of age. Moreover, it is not possible for anyone at this stage when a large number of persons are enrolled as voters to ascertain the actual age of each and everyone of them and then to object if the entry in the draft roll in this regard is wrong."

108. The reason why this inquiry cannot be fore-closed has been given in the following narration:- "The above observation really indicates that a person whose name appears in the electoral roll of a unit is entitled to seek election to the Electoral College from that unit and this right cannot be challenged unless he suffers from any statutory disqualification for being a candidate. The question as to the right to be enrolled as a voter cannot be raised after the final publication of the electoral roll. The stage for raising that question is over. The constitution, however, requires that the candidate must possess another qualification, namely, he must not be less than twenty-five years of age. This requirement comes into play only after a voter becomes a candidate. To require his rival to raise this question at the the of the enrolment of voters in anticipation that he may be a candidate, is to place on him a heavy burden which he will be unable to bear."

109. In the case of Ghulam Younas Khawaja v. Malik Faizullah and another 1969 SCMR 183 the election of a successful candidate was challenged before the Election Tribunal on the ground that his proposer was not qualified to be a voter as he was below the prescribed age of 21 years though his name appeared on the Electoral Roll. It was held by this Court that:- "A person whose name appears in the roll of an electoral unit is entitled to vote and his right in this regard cannot be challenged and secondly he can propose or second the name of any person who is duly qualified to be elected as a member of the Electoral College from that unit. The position of a candidate who in spite of being a voter is not entitled to be a candidate is different."

110. The ratio of all these decisions is that all authorities empowered to enforce disqualification against a candidate can for that purpose go behind the entries of the Electoral Rolls but even then not so as to make the voter of a particular unit a non-voter of that unit.

111. Section 18 of the Ordinance enjoins that "the electoral rolls prepared for election of members of provincial Assembly as amended from the to the, adjusted and arranged for a local council, shall be the electoral rolls for election to the local council". Section 6 subsection (2) clause (b) of the Electoral Rolls Act 1974 provides that "a person shall be entitled to be enrolled as a voter in an electoral area if he is not less than 18 years of age on the first day of January in the year in which the preparation or revision of the electoral roll commences under this Act". There is a proviso to it that for the purposes of the first general election to the National Assembly or a Provincial Assembly, or an election to a seat falling vacant before the holding of the second general election to the National Assembly or a Provincial Assembly clause (b) shall have effect as if the word "eighteen" therein the word twenty one were substituted. In section 17 there is provision for annual revision of electoral roll "(a) so as to include the name of any qualified person whose name does not appear on such roll, or (b) so as to delete the name of any person who has died or who is or has become disqualified for enrolment, or (c) for correcting any entry or for supplying any omission in such roll.

112. Rule 3 of the Electoral Roll Rules, 1974 requires that "the electoral roll for each electoral area shall be in Form 1". This Form is found at page of Gazette Extraordinary Part II, dated 31-7-1974. The first column of the electoral roll contains the serial No., the second the name of the voter, the third the name of father/ mother/husband, the fourth the name of the grandfather, the fifth the profession, the sixth, :he age on 1st January of the specified year, and finally the seventh the address. It will be noticed that the exact date of birth is not required to be noted. The age is recorded in round figures and not in terms of years, month and days.

113. In this background of law and the proposed judgment let us visualize a case where the age of a candidate as recorded in the electoral roll is found on 1-1-1980 to be 21 years. The last date for receipt of nomination paper is 15-12-1983. The age prescribed for the candidate is 25 years on the last date fixed for filing of the nomination papers. An objection is taken at the the of scrutiny that the candidate is not qualified to be a member. The options open to the Returning Officer will be (i) to reject the nomination paper summarily on the view that as per electoral roll he will attain that age of 25 years on 1-1-1984 and will be below the required age on 1-1-1983 (ii) to hold an inquiry into the exact date of birth and finding it to be 1-1 :-1958 to hold that the candidate is not disqualified having attained the age of 25 years on 1-12-1983 i.e. Before the last date fixed for filing of the nomination paper. Suppose such an inquiry were permissible, and to me there appears no good reason to shut it out, even on accepting the finality of the entries of the electoral roll, and the inquiry definitely leads to the conclusion that the date of birth of the candidate is 1-12-1960. On that view of the law the Returning Officer will be embarrassingly helpless to give effect to his finding. He will be neither in a position to accept the nomination paper nor to reject it. An impasse will be created and the law's paramount characteristic of being certain and clear would altogether disappear.

114. In spite of the care and scrutiny in preparing the Electoral roll and keeping it upto date the types of mistakes creeping in it are recounted in Hammond's book (already referred to) in the following words at p. 18:- "It is important to notice that the order of the Revising Authority as to entries on the electoral register are final, i.e. That it is conclusive that the people who are on it have the qualification which entitled them to be there '(Worcester, 1880). Mistakes in the electoral roll are none the less inevitable, and people who have no right to a vote do find their names on the register. Even with the biennial revision undertaken in England, at the general election in 1922 various instances were reported in the newspapers of 'freak voting'. A by aged 5 years voted at Heywood: a school by of 12 in South West Hull, and yet another of 11 years at Peterborough. It was reported that the vote of an infant aged 2 years, brought to the polling station by his mother, was allowed to be recorded at Portsmouth. And yet an infant (like an un-pardoned felon) is prohibited by statute from voting.

115. But the presiding officer has no authority to inquire into the capacity of any voter on the register, who applies for a ballot paper. The register is conclusive on the presiding officer and he is not entitled refuse to return a ballot paper to an elector whose name is on the register, even though such elector be wrongly on the register, or be prohibited from voting by statute or by the common law of Parliament. The presiding Officer is in no way concerned with persons who are disqualified from voting either by the common law of Parliament or by statute. If these persons are on the register their votes must, if tendered, be accepted, even though they will be struck of on petition.

116. (Fraser, 3rd ed.,p.50. Parker's Election Agent, 3rd ed.,p. 308.)

117. Further, observation on the same page with regard to in--substantial mistakes in the electoral roll are dealt with in the following words-- "Mere miss-description in' the register, however, does not disqualify, if the identity of the person whose name is entered can be satisfactorily established. Thus, in Purnea (1920) the candidate's seconder subscribed himself as 'Modo Sahu, son of Munni Lal Sahu elector of the Kasba Union Committee Circle. In the register of electors there was an elector of the name of Modo Sahu, the son of Munni Sahu, but there was no Modo Sahu who was the son of Munni Lal Sahu. At the scrutiny of the nomination papers neither the candidate not his representa--the, not the proposer, nor the seconder, put in an appearance, and the Returning Officer held that it had not been shown that the seconder was an elector of the constituency. He accordingly of his own mention rejected the nomination paper. It was held that this was wrong, and that the Election Court could correct the mistake."

118. We are not unmindful of the fact that in India the use of double names and aliases sanctioned often by religion and custom is far more widely prevalent than in England, and that the investigation into differences between the electoral roll and the statement of voters and nominators may prove no light task for election Courts; but the framers of the rules appear to have advisedly refrained from attaching finality to the electoral roll, and we presume that it was the intention of the Legislature in India to follow the English rule as to the correction of a misnomer."

119. The upshot of the above discussion is that the composition and functioning of the Election Authority, the statutory duty of the Returning Officer at the stage of scrutiny of nomination paper to enforce the prescribed disqualifications, the precedent law on the subject in the sub-continent during the last at least half a century, all are clearly, indicative of the fact that a Returning Officer possesses the power to reject a nomination paper if he is satisfied that the candidate is not qualified to be elected as a member. This power transcends the entries of the electoral roll. As in the case in appeal before us this very power was exercised, and not unjustifiably on facts, I am of the opinion that this appeal must fail and be dismissed.

120. ORDER OF THE COURT In accordance with the opinion of the majority, the appeal is allowed, the judgment of the High Court as well as the order of the Election Authority is set aside with the result that the election of Emmanual Masih appellant is declared to be valid.