This unfortunate dispute relates to the election of the office --bearers of the Bar Association, Faisalabad, held on 12-1-1985, wherein the petitioner, who contested election for the office of the President, secured 186 as against respondents Nos. 2 and 3, who polled only 181 and 109 votes, respectively. The petitioner thus, succeeded by a margin of 5 votes only.
2. The proceedings giving rise to this writ petition, were commenced by respondent No. 2 by filing an application under Article 64 of the Mamorandum of Association, 1981, issued by the Punjab Bar Council. There were two other similar applications to challenge the election to the office of the Vice-President and the Secretary. The three applications were heard Together and the Executive Committee of the Punjab Bar Council by its order, dated 31-8-1985, impugned through this writ petition, declared the election void as a whole and ordered re-election in contemplation of Article
47. The reasons which weighed with the Executive Committee, were, that the requirements of Rule 5.11 (xii) of the Legal Practitioners and Bar Council Rules, 1974 were not complied with, inasmuch as the voters Identity Cards were not produced, which in its estimation, was, a serious irregularity, that the names of nine persons Messrs Shahid Pervaiz Shaheen, Shabbir Ahmad Khan, Abdur Razzaq, Muhammad Ali Chaudhary son of Ch. Hidayat Ullah, Muhammad Ali Chaudhary son of Ch. Khair Din, Muhammad Siddique Chaudhary, Muhammad Rafique, Shaukat Ali and Muhammad Salam, had been removed from the Rolls of the Advocates maintained by the Punjab Bar Council, but they cast their votes; that Mr. Zahid Mahmood, who held Identity Card for Sahiwal Bar Association, cast his vote at Faisalabad.
3. In the opinion of the Executive Committee the petitioner won the election by a margin of 5 votes only; had not those 10 persons, particularly those whose names were removed from the Rolls of the Bar Council, cast their votes, the result of the election would have been altogether different. This led the Committee to act under Article 65 of the Memorandum and declare the election void as a whole.
4. The learned counsel have been heard and the available record perused. Rule 5.11(xii) ordains that every lawyer while exercising the right of vote, on demand, shall produce his Identity Card. Two objections have been raised by the petitioner's learned counsel on the Committee's reliance on this rule. Firstly, the Chairman of the Election Board never demanded the production of the Identity Cards from the voters and secondly, the provisions of the Rule 5.11(xii) ibid, are merely directory and not mandatory. Therefore, according to the learned counsel, non-compliance of this rule was not fatal to the validity of the election. In support of his later argument, he relied upon Asif Akhtar Malhi v. Pakistan Bar Council 1984 CLC 558 and Mian Zia-ud-Din v. Punjab Local Government Election Tribunal 1985 SCMR 365.
5. According to the Executive Committee the purpose of incoropation of rule 5.11(xii), in the Rules, was, to prevent bogus voters and ineligible persons from participating in the election of the Bar Association. It has been further maintained that membership of the Faisalabad Bar Association being fairly large, in the absence of implementation of this rule, the detection of the bogus voters, at a glance was not possible, especially when the polling agents were not permitted to sit in the Election Hall.
6. True enough, it is in the impugned order that the Chairman of the Bar Association, did not call upon the voters to produce their Identity Cards. But the non-application of this rule, was, not confined to a few voters. Manifestly throughout the election there has been a complete disregard of this rule. From the finding recorded by the Committee it is inferable that disregard of this rule resulted in failure to detect the casting of votes by ineligible persons; completely frustrated the purpose for which it was formulated, and affected the result of the election materially.
7. In Asif Akhtar Malhi's case, the production of the Identity Cards envisaged by- the relevant rule, was considered as a restriction on the right to vote to the election to the Provincial Bar Council granted under section 5 of the Legal Practitioners and Bar Councils Act, 1973. The rule, therefore, had to give way to the statute. But in the instant case, the election to the office of the Bar Association, is, the creation of the rules which also govern the procedure of holding election and the verification of the identity of the voters.
8.In the second precedent, rule 34 of the Punjab Local Councils (Election) Rules, 1979 was considered as directory. This finding was influenced by section 19 of the Punjab Local" Government Ordinance, 1979, which was found to have made such requirement directory. However, the situation in the instant case, is altogether different. Further, the election to the office of the Bar Association, cannot be equated with an election to a public office, as was the case before the Supreme Court.
Thus, the complete disregard of the rule by the Chairman of the Election Board, had serious consequences on the conduct of the election. It, therefore, cannot be treated as a mere irregularity and the omission to follow the rule upheld, on the plea that it is directory. -It may be added that if a voter fails to produce his Identity Card, by way of penalty he can be denied the right of franchise.
9. It was next argued that the names of 9 Advocates, who as per impugned order, were not on the roll of the Punjab Bar Council were admittedly borne on the list of the voters as existing on 15-12- 1984 prepared by the Election Board. It being so, in the submission of the learned counsel, these voters were "eligible voters" within the meaning of clause (d) of Article 5 of the Memorandum of Association and thus, no fault could legitimately be found with the exercise of right of vote by them.
He then referred to Ghulam Abbas v. Additional Commissioner and Election Tribunal, Khairpur Mirs PLD 1965 Kar. 625 and Imitaz Ali v. Ghulam Muhammad Butt PLD 1958 SC 228 in aid of the proposition that the Bar Association's voters list partook the character of electoral roll, which having been prepared by the competent authority attained finality and could not be questioned by the Executive Committee of the Punjab Bar Council.
10. Them is an inherent fallacy in this argument as it does not take notice of the definition of the "Advocate" as given in the Article 5(a) of the Memorandum which is to the effect:- "Advocate" means an Advocate, whose name is borne on the rolls of the Advocates maintained by the Punjab Bar Council.
It is not disputed that the names of 9 Advocates referred to in the impugned order had been removed from the rolls of the Punjab Bari Council on account of non-payment of dues. For the purposes of the "Memorandum of Association" they ceased to be Advocates. The, word) "Advocate" has not been used in Article 5(d) in the generic sence butt as defined in the Memorandum itself. It is, therefore, idle on the part of the petitioner to claim right of vote for these 9 Advocates.
The precedents cited to canvass the finality of the list, are distinguishable and thus, of no avail to the petitioner. The judgment in the Karachi case proceeds on the provisions of section 23(3)(iii) of the Electoral College Act, 1964 and rules 14, 13 and 36 frame there under, which impart finality to the electoral rolls. It was on the rectitude of these statutory provisions that it wahele that the correctness of the entries, in the electoral rolls, could not be gone into by the Election Tribunal.
12. The decision reported as PLD 1958 SC 228, relates to the District Board Election in which on the footing of rule 12 of the Punjab District Boards Rules, 1952, it has been reiterated that where an electoral roll has been finally revised by the Revising Authority, the Election Commission cannot go behind the entries made therein. However, a personal disqualification suffered by a voter has been excepted from such immunity. No such finality as was attached to the electoral rolls falling for consideration in the two precedents, has been given to the voters' list in question, either under the Rules or the Memorandum. Casting of these 9 votes by the ineligible persons, by itself, is sufficient to unseat the petitioner, who as already observed won the election by, a margin of 5 votes only.
13. The learned counsel then criticised the view expressed by the Committee on the casting of the vote by Zahid Mahmood Khan, who was enrolled as an Advocate from District Sahiwal. But a reference to rule 7(10)(b) will provide that an Advocate who is Member of more than one Bar Associaion can exercise right of vote in one Bar Association, only and he has to file a declaration to that effect, in the Bar Association in which he chooses to exercise such right. A copy of the declaration has to be sent to the other Bar Association. This declaration remains in force for a period of three years. The rules demand such strict compliance of this provision, that its violation has been declared as professional misconduct. The petitioner failed to produce any material i~ before the Executive Committee showing that the said Advocate filed the requisite, declaration nominating Bar Association Faisalabad for exercising his right of vote. He has failed to dislodge the finding recorded by the Committee in this behalf.
14. On the authority of Ghulam Farid v. Muhammad Sharif 1970 SCMR 347 it was finally argued that as the election petition did not embody full and complete particulars of the allegations on which the election was challenged, it should have been dismissed summarily on this short ground alone.
In the same wake, the learned counsel referred to Article 65 of the Memorandum to contend that the material on the record did not justify declaring of the election void as a whole.
15. An election to the office of Chairman of Union Council under the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960 was the subject-matter of the dispute before the Supreme Court. But a petition under Article 64 of .The Memorandum, is, not an election petition as used in the legal parlance. Further the Bar Association, is more or less a domestic Tribunal and the strict norms which usually govern the election to a public office, cannot be extended to such an election. In any case, the petitioner has not been prejudiced by the alleged non--disclosure of the particulars. He had full opportunity to meet the allegations levelled by the respondent, to assail the election. This is evident from the material on the record. This ground was also not urged by the petitioner before the Tribunal below and, therefore, cannot be entertained now. Since the election rules and the Memorandum issued by the Bar Council were grossly violated, the case fell within the mischief of clause (e) of Article 65 the Memorandum and the election had to be declared void as a whole.
16. As all the contentions raised on behalf of the petitioner have failed, this writ petition is dismissed in limine.