' MUHAMMAD AKRAM KHAN, J.--These three Writ Petitions under sectionthe Azad Jammu and Kashmir Interim Constitution Act of 1974 are directed against the order of the learned Election Tribunal Mirpur dated 28-6-1984 whereby the Election of Aurangzeb, a successfulandidate, was declared as void and re-election was ordered by the Tribunal for the seat of Ward No, 26 of Mirpur Municipality. This order of reelection has also been challenged by Ch. Abdur Rashid,In whose favour the Impugned Judgment was passed, but he feels aggrieved by the order of re-election. The Third Writ Petition titled `Tariq and others v. Elet tion Tribunal' has been moved by the voters from Ward No, 26 of the Municipal Committee Mirpur who have sought the annulment of the order of the Election Tribunal dated 28-6-1984, whereby the petitioners' right to vote for the election from Ward No, 26 of Municipal Committee Mirpur has been taken away.
2. These three Writ Petitions arise out of the following facts:-
(a) Ch. Aurangzeb and Ch. Abdur Rashid contested election for the membership of Municipal Committee Mirpur from Ward No, 26 on 27-10-1983 A.C. Ch. Aurangzeb has alleged that he secured 307 votes while his rival candidate Ch. Abdur Rashid secured only 202 votes. Ch. Aurangzeb was declared elected as a Member of the Municipal Committee Mirpur from the Ward No, 26 on the ground that he got the highest votes in the election;
(b) Ch. Abdur Rashid filed an Election Petition before the learned District Judge/Election Tribunal Mirpur on 12-11-1983 and made certain allegations which are contained in his election petition moved before the Election Tribunal. His main grievance was that certain voters belonging to Ward No 25 were illegally entered in the, Electoral Roll of Ward No, 26 and, therefore, the votes of those voters should be excluded from counting;
(c) The Election Tribunal accepted the Election Petition of Ch. Rashid and declared the election of Aurangzeb as void. The learned Election Tribunal directed in its judgment dated 26-3-1983 that fresh polls should be held in the Ward No, 26 of the Municipal Committee Mirpur because the election as a whole was vitiated.
(d) Aggrieved by the impugned judgment and the order for fresh polls passed by the learned Election Tribunal Mirpur dated. 26-3-1983, three Writ Petitions were moved in the High Court.
(i) The First Writ Petition has been moved by Ch. Aurangzeb, who has assailed the order of the learned Election Tribunal Mirpur whereby the election of the petitioner was declared as void. It has been alleged that the impugned order passed by the learned Election Tribunal was without lawful authority and consequently of no legal effect;
(ii) The Second Writ Petition has been brought by Ch. Abdur Rashid who has sought annulment of the decision of the Election Tribunal to the extent of re-election only and the said petitioner has prayed that the order of the learned Election Tribunal Mirpur dated 26-6-1984 may be set aside to that extent because in that case he would have to fight again for the membership of the Municipal Committee of Mirpur;
(iii) Tariq and 10 others are 11 voters and residents of Ward No, 26 of the Municipal Committee Mirpur. Their names are mentioned in the electoral roll Annexure 'A' attached with the Writ Petition and, therefore, they have also assailed the judgment of the learned Election Tribunal Mirpur on the ground that they are the genuine residents and voters from Ward No, 26 and as such they were perfectly justified to cast their votes in the election of the Municipal Committee Mirpur held on '27- 10-1983 from the Ward No,
26. They cast their votes on 27-10-1983 and consequently Ch. Aurangzeb was declared elected as a Member securing the highest number of votes from that Ward (Ward No, 26). They have prayed that the order of the 28-6-1984, which enfranchises the said petitioners and takes away their right of vote for the Election of the Municipal Committee Mirpur from Ward No, 26, may be declared as illegal, without lawful authority and consequently of no legal effect.
3. All the three writ petitions are directed against the order of the learned Election Tribunal Mirpur dated 28-6-1984, therefore, they were heard together and are being disposed of by this single order.
4. Raja Muhammad Anwar Khan, the learned counsel for Ch. Aurangzeb, has raised the following points:-
(a) That the order of the Election Tribunal Mirpur is without jurisdiction and lawful authority on the ground that there has been no violation of any provision of the Ordinance XL1X of 1983 (repeated up-to-date) and the Azad Jammu and Kashmir Electoral Rolls Ordinance 1970 (Ordinance No, 1 of 1977) or the Rules issued thereunder;
(b) That the learned Election Tribunal Mirpur has got no jurisdiction to go outside the sphere allotted to him by law and rules relating to the election and the Electoral Rolls duly prepared by the Registration Officer and printed by the Awan Printing Press Sialkot Pakistan'. (which are attached with one of the Writ Petitions) are valid Electoral Rolls, the correctness or authenticity whereof cannot be questioned or gone into by any Court including the Election Tribunal;
(c) That under rule 60 of the Election Rules (Azad Jammu and Kashmir Election Petition Rules of 1983), the Tribunal can declare an election as void only if it is satisfied that failure to comply with certain provisions of Ordinance or Rules has 'materially' effected the results of that election;
(d) That the relevant Electoral Rolls in this case are duly prepared and as such they cannot be questioned by the learned Election Tribunal because:-
(1) No objection was taken at the time of preparation of the electoral roll before the Registration Authority;
(ii) When the electoral rolls were hanged for the public inspection even at that time, no objection about the authenticity or correctness of the Electoral Rolls was taken by anybody before the Registration Authority/Officers, and
(iii) The Electoral Rolls in this case are sacrosanct and no authority, whatsoever, is competent to question the same. Under section 17 of the Azad Jammu and Kashmir Electoral Rolls Ordinance of 1970 (Ordinance I of 1970), no Court shall question the validity of the electoral rolls prepared under this Ordinance or the legality or propriety of any proceedings, or action taken thereunder by or under the authority of the Commissioner or the Registration Officer;
(e) That the votes mentioned in the relevant electoral rolls concerning the votes of Ward No, 26 are bona fide 'residents' or Ward, No, 26 within the meaning of section 12 of the Ordinance I of 1970 (The Azad Jammu and Kashmir Electoral Roll Ordinance of 1970) which says that a person shall be deemed to be the resident in an electoral area if he ordinarily resided in that area. Therefore, the learned Election Tribunal has misinterpreted and misunderstood section 12 of the Ordinance; ( f) That the Wards Nos. 25 and 26 fell in one ward in the previous election and in the elections of 1983, the old wards were split up into new wards, it was simply a matter of rearrangement and readjustment which could be done by the Revenue Officers/Registration Officers. All these voters' names existed in the old Electoral Rolls and when the wards were split up, some names were wrongly included in the Ward No, 25 and similarly some persons were wrongly entered in the Electoral Rolls pertaining to the Ward No,
26. Two applications were moved. One by the residents of Ward No, 26 that their names should be written in the Rolls pertaining to the Rolls of 26 instead of Ward No, 25 and the other application was moved by the Residents of Ward No, 25 that their names should be included in the Ward No,
25. No objection was made and, therefore, the mistakes were rectified;
(g) That the election law has been complied with in holding and conducting the election. And therefore, it has not resulted in the non-compliance of any provision of law or irregularity or procedure. Therefore, the election Tribunal was wrong when it deprived the petitioner Aurangzeb from the fruit of election and when it deprived the electors in the third writ petition from their right to tote which was guaranteed to them by the Constitution; ' That Ch. Aurangzeb was successful as a result of fair election, so the Election tribunal was wrong to pass the impugned order because the election law was materially complied with. Unless and until there is a material illegality or irregularity, the election cannot be declared as void. He has cited:- ' PLD 1977 Lab. 588 1974 All E R 722 (which case is mentioned in the Lahore Authority);
(i) Raja Muhammad Anwar Khan, the learned counsel for Ch. Aurangzeb, has referred to the following authorities in connection with the authenticity and correctness of the Electoral Rolls:- PLD 1958 SC (Pak.) 228.
PLD 1965 Kar.
625.
PLD 1968 SC 235.
PLD 1968 Lab.
1368.
5. Mr. S. M. Zaffar, the learned counsel for Ch. Abdur Rashid has vehemently argued:-
(a) That the Electoral Rolls concerning the Ward No, 26 are not sacrosanct. The inclusion of certain names mentioned in the challenged electoral rolls is a flagrant violation of law because some voters belonging to the other Ward No, 25 were included in the Ward No, 26 without any legal justification. So, 45 voters were wrongly added in the Electoral Roll under the orders of some Assistant Commissioner or Tehsildar who was not competent to order for the inclusion of their names in the challenged Electoral Roll. Mr. S. M. Zaffar, Advocate has argued that the Collector Mirpur or his Superintendent {{URDU TEXT}} or the Deputy Commissioner Mirpur or the Assistant Commissioner were not competent to pass an order for the inclusion of 45 voters mentioned in the challenged Electoral Roll. He has submitted that the Electoral Rolls prepared for the purpose of the election for the Members of the Legislative Assembly have been adopted for the sake of election to be held for the Local Bodies and, therefore, the Court has only to look into Azad Jammu and Kashmir Local Government Ordinance of 1983 (Ordinance XLIX of 1980). Referring to section 3 of the said Ordinance of 1983, Mr. S. M. Zaffar Advocate has argued that the addition of 45 names in the electoral roll was an act beyond the jurisdiction of the Deputy Commissioner and/or the Assistant Commissioner. Therefore, the addition of 45 names was unauthorised. The Revenue Officers figure nowhere in section 3 of the said Ordinance. According to him, this addition could only be made by the Election Commissioner or the Deputy Election Commissioner;
(b) That the electoral rolls are maintained under section 18 of the said Ordinance and the Register of voters should include only those persons who possess the qualifications to be the voters and who should not be subject to any disqualification. His precise argument is that the Register maintained under subsection (1) of section 18 of the Ordinance, shall be the Electoral Roll for the ward. This electoral roll shall be maintained and revised in the prescribed manner fom time to time.
He has also referred to section 19 which says that every person whose name is entered in the electoral roll and no person whose name is not so entered, shall be entitled to cast a vote at an election of a Local Council;
(c) That the rearrangement of wards, Union Councils etc. Is to be made by the Revenue Officers but no names of voters can be added or substracted by the Deputy Commissioner or Assistant Commissioner or the Tehsildar. Electoral Rolls meant for the Azad Jammu and Kashmir Assembly elections shall be used subject to the condition that no addition or alteration can be made under any other law at all. However, amendments and revision can be made under the Ordinance of 1983 by the Election Commissioner or 2 other Officers mentioned in section 2(3) i. e. The Additional Election Commissioner or the Deputy Election Commissioner. He has also referred to the Azad Jammu and Kashmir Local Council Rules of 1983, especially the rule 11(11) which pertains to the definition of Election Commissioner/authority competent under this rule for holding an election for a Local Council. He also referred to rule 2(0 which defines an electoral roll prepared under these rules and adopted for the purposes of election of a Member of a Local Council. His case is that the Collector is only responsible for the organization, conduct and supervision of a Local Council within his District and, therefore. The Collector or his Superintendent cannot add or subtract names from the voters list (electoral roll). He has also referred to rule 12 of the Azad Jammu and Kashmir Local Government Election Rules of 1983 which is about the supply of electoral rolls. This Rule says that the Election Commissioner/ Authority shall provide the electoral rolls to the Returning Officers, who shall, wherever necessary for the purposes of the election to Local Councils cause the electoral rolls to be adjusted and arranged in such manner as may be directed by the Election Commissioner/Authority; and
(d) Pages 13 and 14 of the judgment of the learned Election Tribunal were read out by the learned counsel for Ch. Abdur Rashid which {{URDU TEXT}} #TBS "A Collector/Returning Officer shall appoint for each Polling Station #TBE {{URDU TEXT}} "Collector means the Chief Officer of the revenue administration of the District concerned and includes a Deputy Commissioner and any other Officer especially appointed by the Government to perform all or any of the functions of a Collector under this Ordinance."
"3. The Government may appoint an Election Commissioner, who shall be responsible for the organization conduct and supervision of elections to the local Government institutions and matters connected therewith." {{URDU TEXT}} "Subject to general supervision of the Election Commissioner/Authority, the Collector shall be responsible for the organization, conduct and supervision of elections to Local Councils within his district. In the performance of his functions under these rules the Collector shall be assisted by D.E.0." {{URDU TEXT}} a Presiding Officer and such number of Assistant Polling/Officer and Polling Officer as the Returning Officer, Assistant Polling Officer or Polling Officer." {{URDU TEXT}} ? "Electoral rolls; for each ward, there shall be maintained in the prescribed manner, a register in which shall be entered the names of persons who possess the qualifications and not suoject to any Of the disqualifications specified in the second schedule...... {{URDU TEXT}} "Electoral roll means an electoral roll prepared under these rules or adopted for the purpose of election of a member of a Local Council"
(Underlining is mine) {{URDU TEXT}}
(e) Mr. S. M. Zafar, Advocate has referred to the case of Karam Hussain v. Mallick Muhammad Zarait and others (1), in which case the Supreme Court accepted appeal and held that the election as a whole stood vitiated and fresh elections were ordered to be held for that seat of the District Council of gotii.
(1) PLD 1984 SC (A J & K) 129
6. We have heard the learned counsel for the parties and have perused the record of the case, especially the challenged electoral rolls.
7. The following points fall for determination in these three writ petitions :
(i) Whether the voters. Whose names were added in the list of the Ward No, 26 were voters in the list prepared in 1979 A. C. If so, whether the electoral rolls prepared in 1983 for the Ward No, 26 could be corrected ?
(ii) Whether the addition of the names of the voters (whose names were added in the list of 1983 prior to the election held in October, 1983) amounted to correction or addition ? If so, whether this addition/correction was justified under law ?
(iii) Whether the impugned order of the learned Election Tribunal was passed without lawful authority or whether the Election Tribunal has exercised the jurisdiction not vested in him by law ? -
(iv) Whether the electoral rolls prepared in 1983 were sacrosanct and could not be challenged in any way, whatsoever, especially when they were printed in the Awan Printing Press ?
(v) Whether the addition/correction of the electoral rolls had materially effected the result of the election in this case ?
(vi) Whether the inclusion/addition of some names of voters concerning the Ward No, 26 was justified under circumstances as a result of which the petitioner Ch. Aurangzeb was declared as a successful candidate securing the highest number of votes ?
(vii) Whether the voters can assail the judgment of the Election Tribunal regarding the order which disenfranchised them without giving them an opportunity of being heard ?
8. Let us first make it clear that the law applicable in this case is the following :-
(1) The Azad Jammu and Kashmir Local Government Ordinance 1983.
(2) The Azad Jammu and Kashmir Local Government Election Rules, 1983.
9. In the Azad Jammu and Kashmir Local Government Ordinance, 1983 section 2 is about definitions : Section 2.. (xi) 'Election Commissioner' means the Election Commissioner appointed tinder this Ordinance and includes an Additional and a Deputy Election Commissioner ; (x1i) 'Elector' means a person who is entitled to vote at an election and whose name appears in the Electoral Rolls ;
(xiii) 'Election Tribunal' means the Election Tribunal constituted under this Ordinance ;
(xix) 'Local Council' means a Council/constituted under this Ordinance and includes Union Council, Markaz Council, District Council, Town Committee and Municipal Committee ;
(xth) 'Member' means a member of Local Council; (xxiii) 'Municipal Committee' means a Municipal Committee constituted under this Ordinance;
(xxv) 'Rules' means rules made under this Ordinance , ' Section 3 reads :-
(1) The Government may appoint an Election Commissioner, who shall be responsible for the organization, conduct and supervision of elections to the local Government institutions and matters connected therewith.
"5. Local Councils.-As soon as may be, the following Local Councils shall be constituted in accordance with the provisions of this Ordinance ; (a)
(b)
(c)
(d) . ....
(e)
( f) A Municipal Committee for an urban area consisting of more than ten thousand population except in the case of a district headquarter where a Municipal Committee shall be constituted irrespective of its publication.
' Section 13 is about the Constitution of Municipal Committees.
' Section 17(d) is about the wards of Municipal Committee. Section 18 is about the Electoral Rolls. It reads :-
(1) For each ward there shall be maintained, in the prescribed manner, a register in which shall be entered the names of persons who possess the qualifications and are not subject to any of the disqualifications specified in the second schedule.
(2) The register maintained under subsection (1) shall be the electoral roll for the ward: ' Provided that for the first and second elections under this Ordinance the electoral rolls prepared by the Chief Election Commissioner for election to the Assembly would be used after such re- arrangement as may be necessary : ' Provided that no name shall be omitted or added.
(3) The Electoral roll shall from time to time be amended and revised in the prescribed manner.
(4) The inclusion of a disqualified person, or the omission of a qualified person from, the electoral roll, or any other defect in its preparation or maintenance shall not, by itself vitiate any election to, or any act or proceedings, of, any local council constituted on the basis of such electoral roll.
' Section 19: "Election. -Every person whose name is entered in the electoral roll, and no person whose name is not so entered, shall be entitled to cast a vote at an election of a Local council.
' Section 19 is about Election. It reads : Conduct of elections.-(1) Subject to such directions as may from time to time be issued by the Election Commissioner, all elections to local councils under this Ordinance shall be organized and conducted in accordance with the rules, and such rules may provide for all matters connected therewith or incidental thereto, including by elections, and corrupt or illegal practices and other election offences, and penalties, therefore, submission, trial and disposal of election petitions."
' The second schedule attached to this Ordinance is about the qualifications and disqualifications of Electors and Members
10. In exercise of the powers conferred by section 82 of the Azad Jammu and Local Government Ordinance 1983, the Azad Government of the State of Jammu and Kashmir enforced the Azad Jammu and Kashmir Local Government Election Rules, 1983, Rule 2 is about definition.
' Rule (2) (ix) 'Election Commissioner/Authority means the Election Commissioner / Authority appointed under these rules for holding elections to local Councils;
(x) `Elector' means a person who is entitled to vote at an election and whose name appears in the electoral rolls ;
(xi) 'electoral roll' means an electoral prepared under these rules or adopted for the purpose of election of a member of a local council;
(xii) 'election petition' means a petition made under the Ordinance and these rules calling an election into question;
(xiii) 'election tribunal' means an Election Tribunal appointed under the tribunal cc/these rules for the trial of election petitions ;
(xvi) 'material irregularity' means non-compliance with the provisions of the rules which materially affect tne results of an election;
(xxiv) 'Rules' means Azad Jammu and Kashmir Local Government Elections Rules, 1983; (xxxii) 'Voter' in relation to any ward means a person whose name is borne on the electoral roll of that ward ; (xxxiii) 'Ward' means an area of a Local Council delimited under sub-rule (1) of rule 8 for the purpose of elections of a member ; ' Rule 12 is about the Supply of Ekectoral Rolls. It reads as follows :- "(1) Supply of Electoral Rolls.-(1) The Election Commissioner/Authority shall provide the electoral rolls to the Returning Officers, who shall, wherever necessary for the purposes of the election to local councils cause the electoral rolls to be adjusted and arranged in such manner as may be directed by the Election Commissioner/Authority.
(2) The Returning Officer shall provide to the Presiding Officer of each polling station copies of electoral rolls as adjusted and arranged by him under sub-rule (i) of this rule and containing the names of voters entitled to vote at the polling station.
(3) Such numbers of printed copies of electoral rolls or as the case may be the copies of electoral rolls as have been adjusted and arranged under sub-rule (1) of this rule as are available with the Returning Officer may be made available for sale at the rate fixed by the Election Commissioner/Authority.
(4) The electoral rolls as adjusted and arranged for each ward under sub-rule (1) of this rule shall .- be displayed at the office of Returning Officer for public inspection at least three days before the date fixed for the receipt of nominations. The Returning Officer may allow any person to take an extract, or make out a copy of the electoral rolls.
' Chapter VI of these Rules relates to the Election Petition. Rule 60 reads as follows.-- "Grounds for declaribg an Election void.--The Election Tribunal shall declare an election to be void if it is satisfied that :
(a) the nomination of 'the returned candidate was invalid :
(b) on the nomination day the returned candidate was not qualified for or was disqualified from being elected for the ward ;
(c) failure of any person to comply with the provision of the Ordinance or these rules has materially affected the results of the election; or
(d) the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper; or (e)' the improper reception or refusal of any vote or the reception of any vote which should not have been received, has materially, affected result or the election ; or
(f) the election of the returned candidate has been procured or indu. Ced by any corrupt practice, illegal act ;
(g) a corrupt practice or illegal act has been committed by returned candidate or his authorised agent or by any other person with the connivance of the candidate or his authorised agent; or
(h) corrupt practices, material irregularives, illegal payments, employments or hirings have so extensively prevailed at the election that they may be reasonably supposed to have affected the result."
Rule 62 reads: "Decision of the Election Tribunal.-(1) At the conclusion of the trial of an election, the Election Tribunal shall make an.Order:-
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void ; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected ; or
(d) declaring election as a whole to be void."
11. The whole dispute revolves round the Electoral Roll of Ward No, 26, Tehsil Mirpur, page 7 serial Nos. 454 to 492. The voters of the Wald No, 26 (426 to 492) are ladies and the names of these voters 456 to 486 (ladies appear in the electoral roll regarding Ward No, 26 Tehsil Mirpur which were printed in the Awan Printing Press Sialkot (Pakistan). It has been signed by the Assistant Registration Officer because it is mentioned so under page 7 of the printed list. But some lady voters of Ward No, 26 bearing numbers from 488 to 492 (both inclusive) are not printed. It appears that this separate small unprinted list is initialled or signed by some A. R. O. Which means the Assistant Registration Officer. In other words, the five lady voters (No, 488 to 492) are mentioned separately it list which is not printed but there is a photostat copy thereof on the filed which is inadmissible under evidence as it is evident from 1982 CLC 318.1 We have not been able to get the printed names of Azmat Bibi, Ribia Bibi, Nusrat Bibi, Musarat Bibi and Inayat Bibi, the lady voters from the Ward No,
26. It appears that in some previous list, the lady voters of this Ward were only 453 and the male voters were 311. Now according to the revised list, the lady voters from 454 to 486 have been added on the printed roll pertaining to the Ward No, 26, while 5 names of still on the unprinted list. A perusal of the file shows that on 21-8-1983, an application was moved by Ch. Barkat Ali, the Councillor Municipal Committee Mirpur, Ward No, 26 to the Deputy Commissioner Mirpur for the addition of certain names, both male and female. He moved an application for the addition of certain names in the list of Ward No, 26 on the ground that some officials had wrongly and with mala fide intention entered the names of those voters in Ward No,
25. In other words, the voters of "Nathia" have been entered in the Electoral Roll of another ward and that they are actually the residents of Ward No,
26. He prayed in his application that the voters list regarding the Ward No, 26 should be corrected and the voters' of "Nathia' should be included in the list pertaining to the Ward No, 26 as they are the bona fide residents of Ward No,
26. Another application was moved by Khadim Hussain that some voters of the Ward No, 25 were wrongly entered in the Ward No,
26. A list of such 16 voters was mentioned in that application moved in the month of August' 1983. The Deputy Commissioner sent the application of Khadim Hussain to the Tehsildar for verification.
Similarly the application regarding the voters of Ward No, 25 (who were to be entered in the electoral roll pertaining to the Ward No, 25) was also sent to the Tehsildar by the Assistant Commissioner on 17-10-1983 for the necessary action (i. e. The correction of electoral rolls). Nobody knows what happened after the order of the Assistant Commissioner to the Tehsildar. But one thing is certain that the Electoral Rolls regarding the Ward No, 26 of the Municipal Committee Mirpur were printed in the Awan Printing Press, Sialkot (Pakistan) and all the lady voters mentioned by me somewhere else in the judgment, were added in the printed Electoral Roll, except the 5 voters whose name were not entered in the printed electoral roll.
12. There is a presumption of truth attached to the acts done by the officials of the Government. It shall be presumed that the Government officials must have obtained the necessary orders and then got the Electoral Rolls pertaining to the Ward No, 26 of the Mirpur Municipality printed in the Awan Printing Press. Each page of the printed Electoral Roll bears the name or the Assistant Registration Officer and the Electoral Rolls were sent to the High Court on 5-10-1985 when we ordered for the production of the list. This original list contains the names of the voters whose inclusion is the subject of discussion.
' Let us point out here that the Tehsildar is the Assistant Registration Officer as his signature exist on the original list of the voters for the Ward No, 26.
Value of Electoral Rolls :
13. In the case of Imtiaz Ali v. Chulam Muhammad Butt and 'others (1), it was observed at pages 241 and 242:- "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,
(1) PLD 1958 SC (Pak.) 228 unless there be some personal disqualification. A reference may here be made to the case of Stove v. Joliffe, (LRCP. 734) where it was held that the register of voters is conclusive on a Returning Officer, as well as on any tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Borough's case 1,50 M & H-135) it was held that the register is conclusive and the people whose names are mentioned on it are presumed to have the necessary qualifications. 'It may be that their names ought not to have been there but they were there at the time of the election'.
' It was declared also that the policy of law is to make it necessary to raise all questions as to rights to vote before the Registering and Revising Authorities, and this has been done by preventing any such question from being raised at any other time, or in any other manner. These views have been approved in reported cases of elections to Legislative Assemblies in India as well, It is unnecessary for our purpose to refer to any of 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. Accordingly, if the names of voters resident in village Moujo-ki-Bhet were wrongly included in the electoral roll for Circle No, 41 in relation to any order which might have been passed as to the constituencies for the election in question, that point could not be raised at any stage after the finalization of the electoral roll for Circle No, 41 and the casting of votes by voters from village Monjo-ki-Bhet is, therefore, not to be regarded as an irregularity in relation to that election."
' This decision pertains to the election case of Sialkot District Board from the Constituency No, 41 (Narowal). In that election,- Ghulam Muhammad Butt had been declared to be the successful candidate while Imtiaz Ali was defeated. An order was passed on the complaint of Imtiaz Ali to the effect that election from Circle No, 41 (Narowal) was void and that it should be held again. The successful candidate Ghulam Muhammad Butt..Filed a Writ Petition in the High Court which granted the reliefs claimed for. Imtiaz All and the Province of West Pakistan went up in separate appeals to the Supreme Court. As a matter of fact Manjo-ki-Bhet was included in the electoral roll for Circle No, 41 and the electoral roll was prepared in accordance with law, that is to say after publication of a preliminary roll, invitation of claims and objections and after correction of that preliminary roll on the basis of decisions made by the Revising Authority in relation to such claims and objections as were received. The learned Judge Cornelius (as he then was) was pleased to observe at page 241 :- "If there was a defect in the preliminary roll by the inclusion therein of the names of voters from Village Manjo-ki-Bhet, that defect should have been brought to light by making of a proper objection before the revising authority at the proper time. No such objection was even made, and the electoral roll having been revised was duly published. Therefore, no further objection could be taken to the electoral roll and the election was to be held on the basis of that roll."
' The order made by the High Court was confirmed by the Supreme Court and the appeals were dismissed.
14. In the case of Ghulam Abbas v. The Additional Commissioner and Election Tribunal Khairpur Mirs and 3 others (1), relying on PLD 1958 SC (Pak.) 228 and PLD 1961 B J 15. The final electoral rolls were considered. Conclusive for all intents and purposes. The Election Tribunal could not go into the finality of orders passed by the Revising Authority. It was held that the election Tribunal was wrong in reopening the entries in the electoral roll.
15. In the case of Muhammad Tufail v. Muhammad Salim and others (2), it was held by the majority of the learned Judges that if an objection is raised regarding the fulfillment for a candidate of the requirement of age as prescribed in the Constitution, that objection can be gone into and to that extent the electoral roll shall not be sacrosanct. It was observed that the elaborate machinery for the preparation, finalisation and revision of the electoral roll is directed towards one end, and one end alone, namely to ascertain whether a person is or is not qualified to be a voter. The determination of the exact age of the person concerned is not contemplated by any provision of the Act or the Rules and, therefore, the matter of age can be looked into and for that purpose, the entry in age column covers no weight. However, the electoral roll's value regarding the person to vote was recognised..
16. In the case of Syed Aminud-Din Choudhary v. The Election Tribunal Chittagong and others (3)-, it was held that tile entries of the Electoral roll are binding on the Election Tribunal except as regards to statutory disqualifications. It was a case relating to the objection that a successful candidate was not entitled to be enrolled as a voter in a particular unit. In this case, Imtiaz Ali v.
Ghulam Muhammad Butt (4), and Stove V. Joliffe (5), were relied upon.
' I would like to refer to the following part of that lucid judgment from pages 240 and 241 "The case of Maujo.Ki-Bhet in our opinion falls under a different rule of election law from that cited by Mr. Justice C. M. Sherif, who thought that there was irregularity, but unless it could be shown to have materially affected the result it would not be possible to bring it within the category of 'material irregularity' for the purpose of avoiding the election. It has been overlooked that Maujo-ki- Bhet was included in the electoral roll for Circle No, 41, which itself was prepared in accordance with law, that is to say after publication of a preliminary roll invitation of claims and objections and after correction of that preliminary roll on the basis of decisions made by the Revising Authority in relation to such claims and objections as were received. If there was a defect in the preliminary roll by the inclusion therein of the names of voters from village Maujo.Ki-Bhet, that defect should have been brought to light by the making of a proper objection before the revising authority at the proper time, No such objection was ever made, and the electoral roll having been revised was duly published. Thereiftar, no further objection could be taken to the electoral roll and the election was to be held on the basis of that roll."
In that case, the final electoral roll contained the name of the respondent
(I) p L D 1965 Kar. 625 (2) PLD 1967 Kar. 104
(3) P L'D 1968 $ C 235 (4) PLD 1958 SC (Pak.) 228 (5)1LRCF 734 as a voter in Unit No, 5 of the Union No, 2 Hinguli. It was held that no jurisdiction existed to enquire into the question whether the name of the respondent Khurshid Alam should or should not have been in the electoral roll of Unit No,
5. The High Court's older for the quashment of the order of the Election Tribunal was upheld by the Supreme Court and Aminud-Din's appeal failed.
17. In PLD 1969 SC 5, it was :- "Held the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. In this view the right of a person whose name appears on the roll to vote cannot be challenged on the ground that he does not possess the other qualification in this regard. The entry in respect of the actual age cannot be placed on the same footing as the other entries."
18. In the case of Cl:. Ghulam Huscain v. Election Tribunal and another (1), the Supreme Court of Pakistan was pleased to lay down in very clear terms that if a person's name (candidate's name appeared in the Electoral in that case) appears in the electoral roll and no objection is taken to such entry prior to the election but is raised for the first time before the Election Tribunal, the objection was held to be not sustainable and the election could not be declared as void on such ground. It was also held that the voters could not be disenf anchised for no fault of their own. The learned Supreme Court referred to :- PLD 1968 SC 235. PLD 1969 SC 5.
1980 SCMR 548. and it was held that the election of Ch. Muhammad Hussain was not illegal or void. The Supreme Court of Pakistan accepted the appeal of Choudhary Muhammad Hussain. Relying on PLD 1968 SC 301, it was further held that the voters could not disenfranchisid for no fault on their part.
' I would like to reproduce paras. 13, 14, 15, 16 from pages 310 and 311 as under :- "13. According to the ruling given in Syed Aminuddin Chowdhury v. The Election Tribunal etc. PLD 1968 SC 235, decided on 8th of November, 1966, it was held by the Supreme Court that, "if a successful candidate's name has been entered in electoral roll and remained there up to the time 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 inquire into the question whether the name of the respondent Khurshid Alam should or 'should not have been in the electoral roll of Unit No, 5."
14. In a Dacca case, the High Court followed the decision of the Supreme Court and it was held that the electoral roll as revised the Revising Authority would, therefore, be binding on the Election Tribunal. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification (regarding age), he becomes ipso facto
(1) 1982 SCMR 307 qualified to stand as a candidate in the election and Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications. We find no change in the powers of the Election Tribunal even in the Punjab Local Government Ordinances, 1979.
15. In Serajul Islam v. Ahsan Ali Mondal and others PLD 1969 SC 5, on a similar question the Supreme Court held that, the right to be enrolled as a voteris different from the right to be a candidate though the later includes the former. The roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure. In this view the right of a person whose name appears on the roll to vote cannot be questioned.
16. The statutory provisions referred to in the above-quoted judgment PLD 1968 SC 235 point to the conclusion that the right to be enrolled es a voter is different from the right to be a candidate.
The entry in respect of a actual age cannot be placed on the same footing as the other entries. The requirement of the minimum age of 25 years is a constitutional provision. It is an essential qualification for a candidate in section 20 of the Punjab Local Government Ordinance. It is clearly provided that only such person who has attained the age of 25 years on the last date fixed for filing the nomination papers shall be qualified to be a candidate for election to an electoral unit of a local council. The question before the Supreme Court in the last mentioned case was whether the Tribunal hearing an election petition was competent to enquire as to the age of the person and to set aside his election on the ground that he did not possess the requisite qualification with regard to age for contesting election to an electoral unit. In such a case, it was held that the Election Tribunal was competent to go into the question of the actual age of the candidate in respect of the entry in the electoral roll, but the question as to the right to be enrolled as a voter could not be raised after the final publication of the electoral roll. In section 20 of the Punjab Local Government Ordinance, a simple requirement is that a person shall be qualified to be a candidate for election to an electoral unit, if for the time being his name appears on the electoral roll of that electoral unit.
19. In the case of Haji Abdur Rehman v. Ghulam Hassan and another (1) D. B. (Rawalpindi Bench), it was held that the following matters are sacrosanct and cannot be enquired into :-
(i) That the electoral list is.Invalid because it has been prepared by incompetent officers, cr because it contains omissions of persons entitled to vote, or, includes persons not so-entitled, or contains misdescription in the names etc. Of the voters, or
(ii) That the persons named therein are not entitled 4o 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).
20. The entries in electoral roll were also considered by our High Court in the case of Ch. Man-oor Ahmed v. Azad Jammwand Kashmir Government etc. (2) wherein Mr. Justice Sardar Muhammad Ashraf Khan, J. Referred to section 18 of the Azad Jammu and Kashmir Local Government ' (1) 1984 CLC 572 (2) 1985 C L C744 Ordinance. 1983 and held that the entries in the electoral roll were sacrosanct and the validity or correctness of such entries could not be questioned.
' It was observed at pages 340 and 341 :- "In this case, the question of omitting the name of the petitioner by the election authority, of the Local Government while arranging and re-adjusting the electoral roll does not arise because the electoral roll relied upon by the Returning Officer for making a decision on the nomination paper of the petitioner with regard to the qualification of the petitioner to contest the Local Bodies Election, was prepared and maint ,ined by the Registration Officer concerned appointed under the Azad Jammu and Kashmir Electorat Roll Ordinance (hereinafter referred to as Electoral Roll Ordinance) for the election of the Assembly and was not the one re-arranged and adjusted by the election authority of the Local Bodies under section 18 of the Local Government Ordinance read with rule 12 of the Local Government Election Rules, 1970 (hereinafter referred to as Election Rules). As the name of the petitioner was not entered in the electoral roll prepared for the purposes of the election of the Azad Kashmir Assembly by the Registration Officer concerned, the Returning Officer was legally bound to reject his nomination paper under Clause (a.) of sub-rule (3) of Rule 6 of the Election Rules as petitioner was not qualified to be elected as Member of the Local Council on account of his name not borne on the electoral roll of the concerned electoral area. Under the provisions of section 3 of Part II of Schedule II of the Ordinance, a person whose name appears for the time being on the electoral roll for the Local Council concerned is qualified to be elected as a Member of that Local Council. It appears that the learned counsel for the petitioners is under a misconception that since the name of the petitioner was included by making an amendment in the previous electoral roll of the Union Council Kasgummah, his name could not be omitted in the revised electoral roll in force at the relevant time under section 18 of the Local Government Ordinance and as such his name shall be deemed to be included in the revised electoral roll in force at the time of filing of the nomination paper by the petitioner. This is not the correct legal position. The electoral roll prepared for the puipose of election of the As embly can be amended and corrected at any time under the provision of section 10(5) of the Electoral Roll Ordinance in the manner prescribed by Rule 20 of the Electoral Roll Rules and also fresh electoral roll can be prepared under subsection (7) of the said section of the Ordinance."
(Underlining is mine)
21. The last case in this connection cited before us was the case of Emmanual Masih v. The Punjab Local Councils Election Authority (1) wherein it was held that the Election Tribunal can go into the question of correct age of a candidate on the relevant date. It was observed at page 736 :- "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 .1985 SCMR 729 "it ierc in italics) who are found to be qualified to vote in the election of certain constituency or electoral unit. It amounts to certifying; inter alia, that at the relevant time 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."
In para. 10 of that lucid judgment, the policy underlying the Election Laws and Rules was also referred to at pages 739 and 740 :- "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 founOtion of the democratic process as envisaged at present. All the measures in 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 the said law itself and that too only on the grounds enumerated in the relevant rules. All provisions of the Punjab Local Government Ordinance. 1979, and the Rules framed thereunder must, therefore, be read in the light of this all-pervading intention. It is indeed envisaged that the conduct of elections should be fair and honest and that is why the Election Authority has been given vast powers under section 17(l) of the Ordinance for ensuring that dishonest, unjust or unfair means are not used during the conduct of the election.'
' The learned Supreme Court considered a host of authorities i. e.: PLD 1958 SC (Pak.) 228: PLD 1968 SC 235; 1968 SCMR 880; PLD 1967 Kar, 104, and 1969 SCMR 183; and came to the conclusion that the 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 and that this p.)wer transcends the entries of the electoral roll.
' The appeal was allowed and the judgment of the High Court was set aside with the result that the election of Emmanual Masih the appellant was declared to be valid.
22. 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 they cannot make the voter or voters of a particular unit a non-voter/non-voters of that unit. In other wards, a person whose name appears in the published roll of an electoral unit is entitled to vote and his right to vote cannot be challenged but th entries as regards to the age are not sacrosanct and can be gone into I challenged because a candidate whose age is shown to be 25 years in th Electoral Roll may be below that age and, therefore, not qualified to be a candidate. The reason is that these rolls are 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 but in regard to the age the entry is not final on the ground that the ascertainment of the actual age of the voter is not a necessity for the purpose of the preparation of the rolls. It is enough if it is found that the person concerned is not less than 21 years of age. Moreover, it is not possible, to ascertain the actual age of each and every one of the voters when a large number of persons are enrolled as voters.
23. Section 18 (4) of the Azad Jammu and Kashmir Local Government Ordinance, 1983 reads :- "The inclusion of a disqualified person, in, or the omission of a qualified person from the electoral roll, or any other defect in its preparation or maintenince shall not, by itself, vitiate any election to, or any act or proceedings of, any local council constituted on the basis of such electoral roll."
This means that the inclusion of the names of some voters in the published electoral roll does not vitiate any election. Section 19 is also very clear when it says:-- "Every person whose name is entered in the electoral roll, and no person whose ndme is not so entered, shall be entitled to cast a vote at an election of a local council."
' It appears that the learned Election Tribunal did not consider these clear provisions of law and went outside the sphere allotted to him by this law. "Voter" is clearly defined in Rule 2(xxxii) of the Azad Jammu and Kashmir Local Government Election Rules 1983 as :- "Voter in relation to any ward means a person whose name is borne on the electoral roll of that ward."
Therefore, the voters entered in the electoral rolls cannot be deprived of their right to vote and the successful candidate cannot be unseated.
24. Regarding the point as to what are the powers of the Election Tribunal, the case of Karam Hussain V. Muhammad Zarait (1), is a good authority in which after considering the Rules 56 (5) and 62 of the Azad Jammu and Kashmir Local Government Rules, 1983 it was observed in paras. 11 and 12 at pages 133 and 134 :- "A. Rule 62, which is to the effect :- "(1) At the conclusion of the trial of an election Tribunal shall make an order -
(a) dismissing the election petition ; or
(b) declaring the election of the returned candidate to be void ; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected ; or
(d) declaring election as a whole to be void." (1) PLD 1984 SC (A & K) 129 deals with the decision of the election petition.
The bare reading of the rule would show that the Election Tribunal has got the option to dismiss the election petition, declare the election of the returned candidate to be void, and the petitioner or any other candidate to have been duly elected or declare the election as a whole to be void. This shows that the Tribunal has to exercise the discretion to grant the remedies available under this rule in circumstances of a given case.
12. The above rules would show that the Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election in respect of the returned candidate or as a whole has been materially affected by reason of a failure of any person to comply with or the contravention of any provision of the Act or the Ordinance or these rules. It would, therefore, appear that while determining the nature of the declaration which an Election Tribunal is called upon to give in a particular case it has to consider whether the illegality or the irregularity or corrupt practices has materially affected only the election of the returned candidate or the election as a whole."
' That was a case in which although the appellant Karam Hussain was not qualified to stand for election by virtue of his being less than 25 years of age, the election as a whole, was vitiated and, therefore, void. Fresh election was ordered under the special circumstances of the case because the result of the election had been materially affected. The appeal, which was brought against the judgment of the High Court whereby the Writ Petition was dismissed in limine, succeeded.
' The observations about the election being materially affected are in line with those of Mr. Justice A. S. Salam, J. Of the Lahore High Court in PLD 1977 Lab.
588. I would like to quote the Lahore Authority from page 188 "It was only when the election was lost that the petitioner has filed this petition challenging the voters list. In the matter of elections there are some principles of general application, first of which is that people who participate in an election without demur should accept the result thereof even if the same happens to be not according to their liking. One cannot eat one's cake and have it. The elementary principle for a person seeking a representative office through an election is that he should acquire the representative character. If he is not chosen as a representative, he should accept the defeat with good grace. Law and rules of procedure are provided to facilitate election of a true representative of the voters. As long as the law and the rules of the procedure are followed to a substantial extent to provide for an election of representatives, then the result of the election has to be accepted and it cannot be avoided on the ground that there has been some violation of some provisions of law or irregularity in the pro cedure unless the result of the election is materially affected by noncompliance with the law or rules of procedure. As long as the provisions are substantially complied with and the result is not materially affected by any non-compliance of any provision or irregularity of procedure, the result of an election cannot be annulled. The reason is simple and that is that for the mistakes or wrongs of the authorities conducting the election cannot denude the voters of their rights, nor can those render the voters disenfranchised. In a recent am, Moigan and others v. Simpson and another, (1974) 3 All E R 722 the Court of appeal, after a historical analysis of the election laws, in the words of the Master of Rolls, Lord Denning, laid down the following proposition
(1) If the election was conducted so badly that it was not substantially in accordance with the law as to elections, the election is vitiated, irrespective of whether the result was affected, or not. That is shown by the Hackney case, where two out of 19 polling stations were closed all day and 5,000 voters were unable to vote.
(2) If the election was so conducted that it was substantially in accordance with the law as to election, it is not vitiated by a breach of the rules or a mistake at the polls provided that it did not affect the result of the election. That is shown by the Islington case where ballot papers were issued after 8 p. m.
(3) But even though the election was conducted substantially in accordance with the law as to elections, nevertheless if there was a breach of the rules or a mistake at the polls and it. Did affect the result then the election is vitiated. That is shown by Gumn V. Sharpe where the mistake in not stamping 102 ballot papers did affect the result, Lord Stephenson L. J. Said that 'the law as to elections is, to my understanding of the section recognized as embodied in the Act and the rules, and (that) an election will stand if there have been breaches of the law but they are not substantial or they have not affected the result'. His Lordship further, observed substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election - as a sham or a travesty of an election by ballot, Instances of such a substantial departure would be allowing voters to vote for a person who was not in fact a candidate or refusing to accept a qualified candidate on some illegal ground or disfranchising a substantial proportion of qualified voters, but not such an irregularity as was committed in this case or perhaps in Gumn v. Sharpe, The irsegularities were not stamping the ballot papers but those had not affected the result of the election.
10, On principles and authorities, it stands established that If the elicit') law is substantially complied with in holding a id conducting the electio and the election lc not wham or travesty, then, any non-compliance wit any provision of law or irregularity of procedure would not result in th Invalidity of the election, u less the result of the election is materially affected. In the present case, although the election was not held within 14 days as provided and the list was not, after verification, prepared by the Registrar, but all the same election was conducted a few days later and on the basis of the list which was consented to and authenticated by the participants, including the petitioner, the before, as regards the election (substantial complianre with the law has been made and the noncompliance and irregularities have not reniered the election as sham or travesty. Therefore, the next question that arises is whether the result of the election has been materially affected. Nothing in this behalf has been urged except that the voters list contained the names of 275 persons who did not belong to the category of workers and were thus ineligible to vote, No proof has been adduced that all these persons had, in fact, voted affecting the result or the election.
11. In view of what has been stated above in spite of non-strict compliance with the provisions of Subsections (2) and (5) of section 22 of Industrial Relations Ordinance, 1969, the election having been held substantially in accordance with the relevant election law, and the non-compliance haring not materially affected the result, the 'non-also race of some provisions of taw by the 'Registara would not, when election has been held fairly and squarely in which the participants including the petitioner, had filly participated annul the election. For an act or omission to act by a public authority, the people cannot e deprived of their rights nor disfranchised nor their valid and expressed will. Candidates seeking representative office on the basis of election must abide by the result thereof unless by non-compliance of some provisions of law, the election itself and its processes have been mantpulated, frustrated or abused resulting in making the election a sham or travesty or ficticious. If these results do not follow, the people who have chosen their representatives cannot be frustrated in their efforts and a candidate who had lost on the polls cannot be imposed by a Court as a representative of the voters who had refused to Instal him in the office. In this view of the matter, as seen above, election having been held fairly and squarely, in which the petitioner participated fully and willingly, the result of the election having, in no case, been materially affected, the petitioner must accept the result with good grace".(Underlining* is mine).
25. Therefore, the successful candidate cannot be declared as unsuccessful because :-
(a) the voters list (printed In the Awan Printing Press and signed by the Assistant Registration Officer) is sacrosanct so fat as the names of the voters are concerned. The age of none of the candidates is in question in these cases and, therefore, these 'voters cannot be disen franchised for no fault on their part ;
(b) the unsuccessful candidate should accept the defeat with grace and bow before the verdict of the voters We cannot ignore the withcS likes and dislikes of the voters who have exercised thar right dutiful the election ;
(c) the result of the election has not hen materially affected in the case before us ;
(d) even otherwise, the nelusion of a 41qualihed person in take electoral roll does not vitiate any election of any local Council constituted on the basis of such electoral rolls. This is the law mentioned in section 18 (4) of the Azad Jammu and Kashmir Local Government Ordinance, 1983 and this provision, in itself, is a sufficient ground to dispose of this case ; and IC) It is not the case of the 'Inclusion of certain names in an electoral loll. It is the case of correction, rearrangement and readjustment of voters when the old Ward No, 5 was split up and some new wards of single members were made instead including the Wards Nos. 25 and 2.6 of the Mirour Municipality.
Certain voters were wrongly left out 'We in italics from the electoral roll concerning the Ward No, 26 and the necessar corrections were made when the mistake was pointed out.
26. So, the law is clear that :--
(a) If a person's name is entered in the electoral roll maintained unde the law, and if he is not under any statutory disqualification, h becomes, ipso facto, qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whethe the candidate has the necessary qualification ;
(b) if a person has once been entered at a voter in the electoral list of a certain constitutency, even if he does not reside within the are comprising that constituency, he cannot be deprived of his right t vote. This is so because a very elaborate procedure has been provided by the law and the rules thereunder, for the preparation of electoral rolls;
(c) if no objection is made to the inclusion of the names of the con cerned persons in the 'electoral rolls when the same was prepared, revised and duly published, and, as such, no further objection can be taken to the rolls and the election is to be held on the presumption that the entries therein are correct, and further 'it is settled that every person whose name is entered in the electoral rolls is entitled to vote at the election to which the roll relates, unless there be some personal disqualification;"
(d) the question of the age of a candidate can be gone into by the Election Tribunal and the Courts; and
(e) if a person's name is entered in the electoral rolls of two different wards, he can vote at one ward only and not at both the wards.
27. We have already observed in para. No, 11 that the whole dispute revolves round the Printed Electoral Roll of the ward No, 26 of Tehsil Mirpur Page 7 Serial Nos. 454 to 486 (both inclusive) and the unprinted list containing the names of five lady voters Nos. 488 to 492. When the case was argued before us, the file of the Election Tribunal was not in the High Court. Moreover, neither the learned Election Tribunal nor any learned counsel requested us to call for the Electoral Roll's prepared in 1979. However, as it was argued that the old ward No, 5 was split up into new wards e.g. 25 and 26, there was some confusion in the newly prepared lists and as a result of it, two applications were moved for the rectification of some mistakes. The rectification was teimed as an illegal addition of certain names by Choudhary Abdur Rashid while it was termed as readjustment and correction of certain,errors by Ch. Aurangzeb. We felt that the learned Election Tribunal did not call for the old Electoral Rolls and compare them with the new Electoral Rolls so as to know whether the names of these "newly added lady voters"' existed in the previous electoral rolls or not. We called for the record on 19-11-1985 just to see whether the names of these lady voters existed in the Electoral Rolls prepared in 1979. We called the printed list and the unprinted list signed by the Assistant Registration Officer prepared in 1979 for the ends of justice and we came to known that all the lady voters mentioned at page 7 of the Electoral Roll (Printed) from Nos. 454 to 486 (both inclusive) and the five lady voters Nos. 488 to 492 (both inclusive) in the unprinted list prepared for the Ward No, 26 were already mentioned as voters in the Electoral Rolls (printed and imprinted) prepared in 1979. We took pains to compare the old and new Electoral Rolls and here are the old and new numbers of these voters of Ward No, 26 :- {{TABLE}} Name I New No, (1983) 1 Old No, (1979)
I I I. Maqbool Bibi 454 Printed list Page 7 Ward No, 26 1051 Printed Roll of 79 page 16 of Ward No, 5
2. Barkat Bibi 435' 1052 '
3. Iqbal Bibi 456 1053
4. Nasim Bibi 457 1054 5, Fazal Bibi 458 1051k
6. Feroze Bibi 459 10 'Ye'
7. Sakina Bibi 460 1058
8. Fazeelat Bibi 461 1059
9. Fazeelat Bibi (widow) 462 1060
10. Ruqayya Bibi 463 1061
11. Aisha Bibi 464 1062
12. Munazza Bibi 465 1063
13. Haleema Bibi 466 1064
14. Resham Bibi 467 1065
15. Anwar Bibi 468 1066
16. Arihad-Bibi 469 1067
17. Fatima Bibi ..--,.._. 470 1068 geoL,11,....
18. Manzoor Bibtlor Munawar Bibi (wife of Mahboob Akhtar) 471 93 of the unprinted list of 1979.
19. Zebun Nisa 472 94
20. Taj Bibi 473 95
21. Asia Bibi 474 96
22. Bilquis 475 97
23. Hameeda Bibi 476 98
24. Begum Bi 477 101
25. Ruqayya Begum 478 103
26. Haleema Bibi 479 104
27. Baggi 480 105
28. Yasmeen 481 106
29. Nasreen 482 113
30. Musarrat 483 114
31. Aisha 484 115 .
32. Hameeda Begum 485 112
33. Noor Bibi 436 1057 of the Printed list (1979)
34. Azmat Bib + 488 Unprinted list 135 Page 3 of the Printed list (Electoral Roll of 1979)
15. Rabia Bibi 489. 136 3o. Nusrat B1b 490 137
37. Musarrat Bibi Die) Shah Wah 491 138
8. Inayat Bibi 492 140 {{TABLE}} ' The challenged new Electoral Rolls (both printed and unprinted) are attached) with the Writ Petition No, 30/84 titled Ch. Aurangzeb v. Ch. Abdir Rashid and while comparing them with the old Electoral Rolls (both printed and unprinted) prepares in 1979. We have mentioned the old numbers with red pencil for the sake of convenience so that it should be clear that all these lady voters were duly qualified to vote in 1979 and, therefore, when the old Ward N. 5 was split up in new wards, due to the inefficiency of certain copyists, certain names were misplaced i,e, some of them were entered in the new Ward No, 25 and some in the new Ward No,
26. Under these circumstances, we are of the opinion that it was not a case of addition or substraction of names. On the other hand, it was simply the rectification of certain mistakes which were bound to take place when the old Ward No, 5 (in 1979) was split up into new Wards and readjustments and rearrangements were made. It is regrettable that this aspect of the case was not attended to property by the learned Election Tribunal which did not apply its mind properly to the case before it and entered into a long and unnecessary discussion. He should have called for the old Electoral Rolls of 1979 and compared the new Electoral Rolls prepared for the election of 1983 with those old rolls.
28 Ordinarily the High Court does not interfere in a Tribunal's findings as held in:- AIR 1966 J & K 115, PLD 1974 SC 139, PLD 1977 SC (A J & K) 14, 1981 CL C 651, 1982 CLC 361, PLD 1981 SC 246. but the findings of a Tribunal cannot be regarded as sacrosanct or untouchablc. If the findings of any Tribunal either on the questions of fact or law or both, are perverse, illegal and arc apparent on the face of the record or are without consideration of proper material, the High Court in exercise of its Writ Jurisdiction should interfere AIR 1971 J & K 67.
"Broadly speaking, it is correct that the High Court shall not interfere into the final orders of a Court or Tribunal if it had the jurisdiction to decide the case. The Courts or Tribunal's having jurisdiction to pass an order are competent to pass an order rightly or even wrongly but it must be remembered that whenever a lower Tribunal or Court trayels beyond the sphere allotted to it by the law. The High Court shall not hesitate to come to the aid of an aggrieved person and redress the wrong..
' But where a Court or Tribunal, having jurisdiction to decide the matter rightly or wrongly, excludes a valid piece of evidence which goes to the root of the matter and in consequence comes to a wholly erroneous conclusion or considers inadmissible evidence or its finding is based on misreading or non-reading of evidence or where It violates a rule of natural justice or an important rule of Muslim Jurisprudence, or where there is illegal exercise of jurisdiction or an order is passed by a subordinate Court. Tribunal, body or officer acting without jurisdiction or in excess or refuses to exercise jurisdiction vested in it, or where an error or excess has resulted in manifest injustice or where a lower Court or Tribunal has violated some rule of procedure or has travelled beyond the There allotted to it by law or, to use the words of Rubinstein, takes an action 'beyond the sphere allotted to Tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law'. (Paras. 24 and 25 of the Writ No, 25 of 1983, Mujahid Abdur Rehman and another v. Registrar, Cooperative Societies and another, decided on 13-3-1985 by Justice M. Akram Khan, Judge).
Such power is available to a High Court in Pakistan under Article 199 of the Constitution of 1973, to a High Court in India under Article 226 of the Indian Constitution, to the High Court of Jammu and Kashmir (occupied by India) under section 103 of Jammu and Kashmir Constitution and to the High Court of Azad Jammu and Kashmir under section 44 ot the Interim Constitution of Azad Jammu and Kashmir 1974.
29. Therefore, we are of the opinion that the Returning Officer's verdict that Choudhary Aurangzeb got 154 + 153=307 votes as compared to 145 + 137=282 votes of Ch. Abdur Rashid was correct. The entries in the form XIX under Rule 44(3) are quite correct. One Master Muhammad Ashraf got 73 + 49 122 votes and the total number of valid votes polled was 711. The learned Election Tribunal was wrong to upset that result and had no jurisdiction to declare a successful candidate as unsuccessful as no provision of law was infringed or violated. The verdict of re-election was also unjustified. The following petitioners in the third Writ Petition cannot be disenfranchised for no fault on their part:- (1.) Khalid Hassan son of Barkat , Ali New No, 516, Old No, 113 in the unpublished list of 1979,
(2) Tariq son of Bashir, New No, 316, Old No, 116 in the unprinted list of 1979,
(3) Fero:e Bi daughter of Abdul Karim New No, 459, Old No, 1056 in printed list of 1979 at page 16 of Ward No, 5
(4) Msi. Baggi wife of Fazed Din New No, 480, Old No, 105 in unprinted list of voters of 1979.
(5) Begum Bi mother of Aurangzeb New No, 477, Old No, 101 in the unprinted list of voters prepared in 1979.
' Out of 11 petitioners, we have checked up the cases of five petitioner, only. We could not find time to check up minutely the cases of all the 11 petitioners. Hence the third writ petition also succeeds so far as the five above mentioned petitioners are concerned.
' The writ of Choudhary Abdur Rashid fails. However, we agree with him when he prays that the order concerning the re-election should be set aside. He has been defeated in the election and he should accept his defeat with grace. He failed to raise the objection regarding the correction of the entries made, in the Electoral rolls at the proper time and he also failed to raise any objection at the time of election and after taking full part in the contest, he failed to get the highest votes. His grievance as regards to the inclusion of certain names without any authority in the New list has got no foundation at all. It was a case of inefficiency on the part of certain officials who copied the names of voters from the old list and perhaps inadvertently or due to sheer inefficiency, left out certain voters whose names were included later on when the mistake was pointed out. There is a presumption in favour of the official acts and we presume that everything up to the printing of the New Electoral Rolls was done according to law. The question was not of including certain voters without any authority but of rectifying a glaring mistake. Why should so many persons whose names exist in the Electoral Rolls of 1979, should be disanfreanchtsed simply because some inefficient official or officials did not compare the new Electoral Rolls with the old Electoral Rolls prepared in 1979 and missed their names. The Ward No, 5 was split up and the rearrangement of voters should have been made in such a way that no name should have been left out. To err is human and the errors were rectified. Even under section 9 of the basic/old Ordinance I of 1970, the Registration Officer appointed by the Commissioner for the "preparation, correction and amendment of an electoral roll for an electoral area" and for that purpose may appoint Assistant Registration Officers who are competent to "perform the functions of a Itegistration Officer". The Electoral Rolls under that Ordinance were to be prepared under section 10 of the Ordinance.
Therefore, the petitioner Ch. Abdur Rashid cannot get any benefit from the clear and vital mistakes of some officials. It is regrettable that the standard of efficiency of certain officials has become hopelessly low but we can only deplore it. A successful candidate cannot be penalised nor the voters disenfranchised for the mistakes of others especialy when those glaring mistakes were rectified and no objections were made thereto.
' Under these circumstances, due to the reasons given above it is hereby ordered:-
(1) That the Writ Petition of Ch. Aurangzeb titled 'Ch. Aurangzeb v. Ch. Abdur Rashid and another succeeds. We quash the order of the learned Election Tribunal dated 28-6-1984 whereby the Election of Ch. Aurangzeb was declared as void. He was rightly declared to be the spccessful candidate from Ward No, 26 of Mirpur Municipality by the Returning Officer on 29-10-1983;
(2) That the writ of Ch. Abdur Rashid titled Ch. Abdur Rashid v. 'Ch. Aurangzeb and another is dismissed as it is devoid of any force. However, under the special circumstances of "this case, the order of re-election is set aside;
(3) The writ of the five petitioners out of 11 petitioners (their names have already been mentioned in para. 29 of this judgment) is accepted and it is declared that the five petitioners, being the lawful voters from the Ward No, 26, cannot be disenfranchised. They cast their votes in the Election held on 27 -10-19 exercised their right of vote according to their choice. They cannot be deprived of their right to vote for no fault on their part because they were qualified to vote due to the fact that their names existed in both the new Electoral Rolls prepared for the election of 1903 and the old Electoral Rolls prepared in 1979 for Ward No, 5 on the basis of which the new Electoral Rolls were prepared in 1983 due to the readujstment/re-arrangement of the Wards; and
(4) The Electoral Rolls of 1979, both printed and unprinted, which were called for the sake of comparison and study in these three Writ Petitions and some other lists, should be returned to the proper authority after 60 days i. e. After the expiry of the period of limitation fixed or Leave to Appeal before the Supreme Court.
(5) The parties shall bear their own costs throughout.
P D 1986 Azad J & K {{URDU TEXT}} rt4 {{URDU TEXT}} 1.3444 (a) Azad Jammu and Kashmir Interim Constitution Act (V111 of 1974)-- S. 44-Civil Procedure Code (V of 1908), S. 11- (Res 4101-(Writ) 41)4 cl,{{URDU TEXT}} [pp. 35, 36.
40. 3614, B, C. E & D et seq 1968 SCMR 1204; 1970SCMR 323; PLD 1977 SC(AJ&K) 22 ; PLD. 1965 SC 171; PLD 1966 Lah. 904 ; PLD 1963 Lah. 77 ; Muhammad Yagoob V. Chief Settle hent Commissioner PLD 1965 SC 254 : 1933 CLC 3319 ; Darya v. State A PR 1961 SC 1457 and Mks Shandm Ail v. A:ad Jammu and Kashmir Council 1983 CLC 626 ref.
(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974- - S. 44-Azad Jammu and Kashmir State Subject Act, 1980, S. 5-Azad Jammu and Kashmir State Subject Rules, 1980. r. 7-- {{URDU TEXT}} [p. 47]I 1968 SCMR 145; 1972 SCMR 47; 1973 SCMR 422; PLD 1977 Kar. 6 ; 1979 CLC 872; 1980 CLC 952 ; PLD 1979 Kar. 212 ; 1982 SCMR 497; 1983 CLC 561 ; 1983 CLC 1801 ; 1983 CLC 3040 and PLD 1982 Lah. 129 ref.
(c)Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)- -- S. 44-Azad Jammu and Kashmir State Subject Act, 1980, S. 5- Azad Jammu and Kashmir State Subject Rules, 1980, r. 7-Evidence Act (1 of 1872), S. 115- {{URDU TEXT}} [pp. 49, 52IG & / P LT) 1972 Lab. 95 PLD 1981 SC 94 . 1981 CL C -551 ; 1983 . CL C 144: Shahba: v. Crown PLD 1956 FC 46 ; PLD 1975 Kar. 373 ;PLD1975SC407; PLD 1980 SC (AJ&K) 46; NLR 1984 Civil 729 ; PLO 1973 Lah. 95 ; 1981 CL C 551 ; PLO 1981 SC 94 1983CLC144 .PLD1978SC(AJ&K)37 and 1983CLC 3.319 ref.
(d) Azad Jammu and Keehmir Interim Constitution Act (VIII of 1974)- -- S. 44-Azad Jammu and Kashmir State Subject Act, 1974- Azad Jammu and Kashmir State Subject Rules, 1980, r. 7- {{URDU TEXT}}