' ABDUL SHAKURUL SALAM, C.J.--This order will dispose of Writ Petitions Nos. 5777, 5894, 5934 and 5937 of 1988 as these arise in similar circumstances.
2. Muslims of the entire Indian Sub-Continent by free vote created the country of Pakistan in 1947.
How painfully tragic is the phenomena that after its creation its people did not have opportunity to cast their vote to govern themselves for the next 23 years! When elections were held in 1970, the verdict of the people was not accepted. Surrender was made to the enemy, country broken into two halves and majority of the people thrown in the whirlpool of misery. Another opportunity came seven years later. Elections were held in 1977. These were denounced to be rigged. Result was not accepted, the country went under Martial Law for the next eight years and under its shadow for another three years. A horrendous tragedy by air crash stunned the nation. An Article of the Constitution, which has survived the ravages of amendments, came to rescue. The Chairman of the Senate under Article 49(1) took over as Acting President. The Chief of the Army Staff and his two colleagues of Air and Navy true to their colours befitting disciplined forces, came forward to perform their Constitutional duty to assist the President to carry on the Government of the country according to the Constitution. The President announced that elections ordered by the late President on 20th of July, 1988 shall be held according to the schedule and power transferred to the elected representatives. It is in this background that elections are going to be held on 16th and 19th instant for the National and Provincial Assemblies of Pakistan.
3. The controversy raised by the petitioners in these petitions is that by an amendment vide Ordinance XIV of 1988 promulgated on 4th October, 1988 voters are required to produce Identity Cards before they can be given ballot papers to cast their votes and that many do not have such cards. On the other hand, the case of the respondents as represented by the learned Attorney General is that the condition of production of Identity Cards has been imposed to avoid what is commonly called bogus voting i.e, voting by impersonation. Otherwise, the intention of the authorities is not to debar genuine voters from casting their votes. Rather it is that all eligible persons should freely cast their votes. This is the case in nutshell.
4. Before dealing with the arguments of the learned counsel, relevant provisions of the Constitution and law may be detailed. These are: ' Constitution. Article 51.
(1) The National Assembly shall consist of (two hundred and seven Muslim) members to be elected by direct and free vote in accordance with law.
(2) A person shall be entitled to vote if-
(a) he is a citizen cf Pakistan;
(b) he is not less than (twenty-one) years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent Court to be of unsound mind.
' The Representation of the People Act, 1976.
' Section 33 (before amendment of subsection (1) vide Ordinance XIV of 1988 dated 4-10-1988.
' Voting procedure.-- (1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector on production of such documents material or evidence about the identity of the elector as may be deemed fit).
(2)
(3) A ballot paper shall not be issued to a person who refuses to put his thumb-impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression.
(or who refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark.)
' Section 33 (By amendment vide Ordinance XIV of 1988 dated 4-10-1988)
"(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce the identity card issued to him under the National Registration Act, 1973 (LVI of 1973)"
' Section 33 (By amendment of subsection (3) vide Ordinance XXVI of 1988, dated 7-11-1988)
(3) A ballot paper shall not be issued to a person who-
(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973);
(b) refuses to have his identity card punched by the Presiding Officer or polling officer to indicate the issue of a ballot paper to him;
(c) refuses to put his thumb impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression;
(d) refuses to receive the personal mark with indelible ink or who already bears such a mark or traces of such a mark.
' Section 33 (Latest amendment of subsections (1) and (3) vide Ordinance XXVII of 1988, dated 7-11- 1988.
"(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall, for that purpose, require the elector to produce his identity card provided for in National Registration Act, 1973 (LVI of 1973).
(3) A ballot paper shall not be issued to a person who--
(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973)."
' Electoral Rolls Act, 1974.
' Section 6(1). Xxxxxxxxx
(2) A person shall be entitled to be enrolled as a voter in an electoral area if he-
(a) is a citizen of Pakistan;
(b) is not less than (twenty-one) years of age on the first day of January in the year in which the preparation or revision of the electoral rolls commences under this Act;
(c) is not declared by a competent Court to be of unsound mind and;
(d) is, or is deemed under section 7 to be, resident in the electoral area; ' Section 16, Final publication.-- ' After making additions, deletions, modifications or corrections, if any, under section 15, the Registration Officer shall publish in the prescribed manner and form the final electoral roll for each electoral area.
' The National Registration Act, 1973.
' Section 4. Registration of citizens.--(1) Within such time as the Federal Government may, by notification in the official Gazette, specify in this behalf.-
(a) every citizen in or out of Pakistan who has attained the age of eighteen years shall get himself; and
(b) a parent or guardian of every citizen who has not attained that age shall get such citizen, registered in accordance with the provisions of this Act.
(2) An application for registration shall be made in such form and to such authority as may be prescribed.
(3) The birth of a newly born citizen, and the death of a citizen who has not attained the age of eighteen years, shall be reported to the District Registrar by such authority or officer as may be prescribed.
' Section 5. Identity Cards.--The Director General shall cause to be issued to every citizen who has attained the age of eighteen years and got himself registered under section 4, a card (in the prescribed form) hereinafter referred to as the identity card.
(2) Every person to whom an identity card is issued shall be responsible for its safe custody and for maintaining it in proper shape.
' Section 8. Identity Cards necessary for certain purposes.--(1) No citizen who has attained the age of eighteen years but does not possess or produce an identity card shall be granted a passport, permit or other travel document for going out of Pakistan.
(2) Any officer charged with the duty of conducting the poll at an election to the National Assembly or a Provincial Assembly or to a municipal committee, cantonment board or other local authority may, for the purpose of satisfying himself as to the identity of any person, require such person to produce his identity card.
(3)
(4) The identity card issued to any person shall be proof of his identity for any purpose for which his identity is required to be established.
' Section 11. Penalties.--(1) Any person who-
(a) does not, without reasonable cause, apply for registration as required by section 4;
(b) for any of the purposes of this Act, makes any statement or furnishes any information which he knows or has reason to believe to be false in any material particular or which he does not believe to be true;
(c) conceals, or refuses to furnish, any information which he ought to disclose or furnish;
(d) obliterates or changes any particulars written on the identity card;
(e) forges any identity card or makes or has in his possession any document so closely resembling an identity card as to be calculated to deceive;
(f) fails, without reasonable cause, to report to any Registration Officer any loss of the identity card within thirty days of such loss;
(g) allows any other person to have possession of an identity card for the custody of which he is responsible;
(h) refuses or fails to produce or surrender an identity card as required under section 6 or section 7 or the rules;
5. The contention of the learned counsel for the petitioners is two-fold. Firstly that the amendments in Section 33 of the Representation of the People Act, 1976 requiring production of identity cards are directory in nature and not mandatory. Production of identity cards is one mode of proving the identity. It is not the only way of proving identity. Further, production of identity card by female voters is of no use as females are not required to have their photographs on the identity cards and they do not generally have so. Then, persons who are entitled to vote through Postal Ballot as provided for in Section 29 are not required to produce their identity cards before issuance of ballot papers and these persons run in lacs, hundreds of thousands. Consequently, it was argued that production of identity cards is not the only method of proving identity for casting of votes.
Secondly, if it were to be held that a person will only be allowed to vote on production of identity card, it will run counter to or override, or, put a clog on the eligibility of a person to cast vote given to him by Constitution, Article 51(2). It was contended that any limitation by a sub-Constitutional legislation on Constitutional entitlement would obviously be ultra vires the Constitution. Mr. Abid Hassan Minto, Advocate, counsel for the petitioner referred to 1985 SCMR 365 wherein the judgment of the High Court holding similar provision of production of identity card as directory was upheld.
6. The learned Attorney-General contended that under the National Registration Act, 1973 it is compulsory for every person above the age of 18 years to apply for registration for issuance of an identity card and non-compliance is a punishable offence. Production of identity cards has been provided for avoiding bogus voting. Petitioner-candidates have no right that the provision be declared illegal because electors have not been issued identity cards, or that they were entitled to vote without producing identity cards. Those petitioners who say that they have not been issued identity cards can still apply and if satisfy the requirement of law, they can be issued identity cards even now before the election date. The learned Attorney-General concluded that 92.15% of voters have been issued identity cards. The learned Attorney-General further submitted that those persons who did not get registered for issuane of identity cards did not obey law as is their Constitutional obligation under Article 5(2) of the Constitution and are, therefore, not entitled to exercise of discretionary jurisdiction. Next that by non-registration and obtaining of the identity cards, the electors have waived their right of vote. So, no order can be passed in that behalf.
Further, that the provision of production of identity card is mandatory and right of vote can be regulated by Statute PLD 1988 SC 416 at 536. Therefore, there is no violation of any Constitutional provision. Lastly, that the petition is based on imaginary hypothetical assumption about non- issuance of identity cards and their voting in favour of the petitioners. Article 51(2) has to be read with Article 51(1) and therefore, casting of vote has to be in accordance with law, which in this case imposes the condition of production of identity cards. Lastly, that in India, U.K. And USA voting is regulated by Statute. He referred to Articles 326 and 327 of the Indian Constitution whereunder The Representation of People Act, 1971 was passed and thereunder The Conduct of Election Rules, 1961 provided under rules 35(3) and 37 production of Identity Cards. He referred to Chawla's Elections Law and Procedure, Halsbury's Laws of England, Fourth Edition Vol. 15 p.208 and U.S.A's. Corpus Juris Vol.XX page 60. It was concluded that when a thing is to be done in a particular manner it must be done in that manner and in no other way. He relied on AIR 1936 P C 253 and PLD 1971 SC 61.
7. First the factual aspect of the case may be attended to. A report was called for from the Director- General of Registration, Islamabad as to what percentage of voters has been issued identity cards.
In Para 2 of the report it is stated that 'Estimated persons of age 21 (due for voters) and above as on 1-1-1988 were 43,312,762 and the 'Cards issued upto September, 1988', were 44,217,922. It is intriguing to note that if upto January, 1988 eligible voters were above 43 million they could not have been swollen by one million in nine months for issuance of 44 million identity cards. Since September, 1988, thousands upon thousands would have been issued identity cards per performance of the department. How could over million of identity cards be issued to eligible voters when there are not so many? Obviously, these would be bogus. So, instead of serving the purpose of avoiding bogus voting, these are likely to lead to the converse course. Moreover, is it not common knowledge that by far the majority of people of Pakistan live in rural areas. Only few men in each village would need and have identity cards. By far the majority of women would not have it. In the report it is admitted that out of 47,980,000 listed voters, 44,217,922 have been issued identity cards. It means that 3,762,078 voters have not been issued identity cards. Disallowing such a large number of people running over 37 lakhs would hardly be conducive for bringing about representative Government.
8. Then, in para.5 it is stated that "practically every citizen eligible to vote has been issued National Identity Card". If that be so, there will be no problem. It will all be much ado about nothing.
Alongwith the report there is Annexure A which shows "Districtwise estimated number of persons of 21 years age and above and Cards issued to persons in that age group upto 30th September, 1988".
The break-up is interesting. Important or special districts have less eligible voters but very large number of identity cards issued. A glimpse at the figures will be enlightening. These are: {{TABLE}} District. Estimated number Cards issued. Of persons. La hore. 1,881,626 2,545,197 Sialkot. 1,432,538 1,578,913 Faisalabad. 1,934,601 1,982,778 Khushab 354,924 358,700 R.Y.Khan. 961,515 966,226 Rawalpindi. 1,204,610 1,489,278 Jhelum. 385,126 488,275 Chakwal. 460,983 472,566 Gujrat 1,291,405 1,346,644 Attock 502,655 557,105 Mianwali. 380,308 415,131 Islamabad. 196,162 222,162 Karachi (East) 1,015,833 1,496,813 Karachi (West) 1,159,090 1,618,549
9. From the above it would be quite clear that either the figures are incorrect or too many bogus identity cards have been issued. Therefore, production of identity cards is hardly likely to lead to fair or free election. Secondly, identity cards of female voters without photograph are no good proof of the identity of the voters. Then thousands upon thousands are eligible to vote without production of identity card through Postal Ballot. In these circumstances to insist that identity card is the only method cf proving the identity does not appear to be just or in accordance with the purposes of law of election. Learned counsel for the petitioners appears to be right that the provision of production of identity card is not the only method of proving identity and it can be done otherwise by producing evidence like Passport, identity card issued by the G.H.Q. To armed forces personnel, or departmental identity card, or verification by a, responsible person like an official, lambardar or respectable person of the area. If anybody has any objection to the identity, law provides a remedy vide section 35 of the Representation of the People Act, 1976 "Challenge of electors". It is laid down that "If, at a time a person applies for ballot paper for the purpose of voting, a candidate or his polling agent declares to the Presiding Officer that he has reasonable cause to believe that the person has already voted at the election, at the same or another polling station or is not the person against whose name entered in the electoral roll he is seeking to vote and undertakes to prove the charge in a Court of law or deposits with he Presiding Officer in cash a sum of two rupees, the Presiding Officer may, after warning the person of the consequences and obtaining on the counter-foil, his thumb-impression and, if he is literate, also his signature issue a ballot paper (hereinafter referred to as "challenged ballot paper") to that person".
11. Thirdly the amendment in section 33(1) dated 5-10-1988 and after the close of the argument before interval by the learned counsel for the petitioners the learned Attorney-General stated that he has been informed of the amendment in subsection (3) of section 33 which says that "a ballot paper shall not be issued to a person who fails or refuses to produce Identity Card issued to him under the National Registration Act, 1976 or who-----". When it was pointed doubt the amendment involved that the ballot paper will be refused when the elector fails or refuses to produce Identity Card issued to him and if it was not issued to him, how could he be refused the ballot paper? The learned Attorney-General sought time to seek instructions. Now in the morning newspapers appears further amendment in section 33(1) and (3) which had provided for requiring Identity Card issued under the National Registration Act and refusal to issue ballot paper if the elector fails or refuses to produce such a card. The new amendment replaces the words "issued under the National Registration Act, by "his identity card provided for under the National Registration Act." In other words, the intention is that even if the card was not issued, provision having been made for issuance of identity card, the elector would still be not able to get ballot paper. For clarity the provisions as amended may be quoted: Section 33. Voting procedure.--(1) Where an elector presents himself at the polling station to vote, the Presiding Officer shall issue a ballot paper to the elector after satisfying himself about the identity of the elector and shall for that purpose require the elector to produce the identity card provided for under the National Registration Act, 1973.
(3) A ballot paper shall not be issued to a person who--
(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973);
(b) refuses to have his identity card punched by the Presiding Officer or polling officer to indicate the issue of a ballot paper to him;
(c) refuses to put his thumb-impression on the counterfoil or whose thumb bears traces of its having already been used for putting an impression;
(d) refuses to receive the personal mark with indelible ink or who already bears such mark or traces of such a mark."
' Besides that under ordinary law like Pre-emption a defendant is not allowed to improve his position from the start of litigation to defeat the plaintiff's case, the amendment will also appear to be in conflict with Article 25 of the Constitution which says "All citizens are equal before law and are entitled to equal protection of law". Further, the amendments speak of section 33(1) "his identity card provided for" and section 33(3) that "A ballot paper shall not be issued to a person who--
(a) fails or refuses to produce his identity card provided for in the National Registration Act, 1973 (LVI of 1973)". Everybody in legal fraternity knows that every word of Statute has to be given effect to. Now, 'his' identity card provided for in the National Registration Act, 1973 is nowhere there.
Nobody's card is provided for in a law. Cake is not provided under the Foodgrains Act. Only entitlement is established. One may apply and get ration. The Act does not provide 'atta'. Therefore, there is no question of his (elector's) identity card being provided for in the National Registration Act, 1973. His entitlement is established under the Act. The Identity Card has still to be issued by the authorities. If they do not issue he cannot lose his right by simply having been provided for in a law.
Therefore, the amendments sought and obtained after the close of the case of the petitioners to defeat their petitions are neither fair, nor, just, nor the language employed can frustrate the outcome of the case. Technical arguments of the learned Attorney-General about default of the voters to seek and get identity cards, waiver and that voting rights can be regulated by Statute and the Statute makes it obligatory to have identity cards and references to foreign laws really do not go to the root of the controversy regarding the entitlement of persons to cast vote granted to them by the Constitution and which cannot be abridged, limited or conditioned by any regulatory statutory instrument which if so intended would amount to violation of the Constitution. Fourthly, the National Registration Act, 1973 lays down in section 8 as follows:- Identity cards necessary for certain purposes:-
(1) No citizen who has attained the age of eighteen years but does not possess or produce an identity card shall be granted a passport, permit or other travelling document for going out of Pakistan.
(2) Any officer charged with the duty of conducting the poll at an election to the National Assembly or a Provincial Assembly or to a Municipal Committee, Cantonment Board or other local authority may, for the purpose of satisfying himself as to the identity of any person, require such person to produce his identity card."
In other words for certain purposes like obtaining Passport production of identity card is made compulsory but as regards casting of vote, discretion is left with the Presiding Officer conducting election to ask for production of identity card or not. This provision has not been amended. Therefore, the provision in the relevant law of National Registration Act, 1976 remaining as it is, cannot be affected by side wind of amendment in another law i.e, The Representation of People Act, 1976. Special Statute dealing with Identity Cards shall prevail against a general law. This is trite law hardly needing any citation. Thus, the special law dealing with Identity Cards, relevant laws of election- The Electoral Rolls Act, 1974, The Constitution of Islamic Republic of Pakistan, all allow electors to cast their vote by identifying E themselves either through production of Identity Cards or otherwise proving their identity to the satisfaction of the Presiding Officers. Therefore, production of identity card alone cannot be insisted upon.
12. Lastly if the insistence persists to instransigence, the elector can rightly complain that Article 51(2) has provided that "A person shall be entitled to vote if-
(a) he is a citizen of Pakistan;
(b) he is not less than (twenty-one) years of age;
(c) his name appears on the electoral roll; and
(d) he is not declared by a competent Court to be of unsound mind," ' but he is not being allowed to vote by putting a condition of producing Identity Card, over the issuance of which to him he had no control, and no further qualification, condition, limitation or clog can be put on his Constitutional right of franchise by any subordinate legislation. F The condition would be violative of the Constitution and ultra vires.
' He may be right in saying so. The contention of the learned Attorney-General that his right of free vote is subject to Article 51(1) which lays down that it shall be so in accordance with law and that the law has been made to provide for production of Identity Card, is not quite sound. The Article deals with a different subject of composition of National Assembly. It is to the effect (1) "That the National Assembly shall consist of two hundred and seven Muslim members to be elected by direct and free vote in accordance with law." The provision deals with the composition of the National Assembly for which law may be made. Sub-Article (2) of Article 51 does not lay down that a person shall be entitled to vote subject to any law. His entitlement is laid down by the Constitution itself. It cannot be abridged, limited or conditioned by any other provision of subordinate legislation.
Method and procedure can be laid down in generality of powers granted to the Election Commission by the Constitution. According to its record - the electoral roll, all who are there, are entitled to vote. No other subordinate legislation providing for means to carry out the purposes of Constitution i.e, procedural laws can affect, amend, nullify, or clog the substantive right given by the Constitution.
' Therefore, for all the reasons given above, it is declared that the electors will be entitled to be given ballot papers to cast their H votes if they produce Identity Cards issued to them under the National Registration Act, 1973 but if they do not have them, they can produce any other proof about their identity to the satisfaction of the Presiding Officers. If a candidate or his agent objects, the elector may be issued under section 35 of the Representation of the People Act,1976 what is called "Challenged Ballot Paper". If the elector would be found at fault, the law will have its course.
These petitions are thus, disposed of leaving the parties to bear their own costs, in the circumstances.