1. ' ABDUL RAHIM KAZI, J.--By this petition, the petitioner has contended that the petitioner and the respondent 1 are both candidates in the forthcoming election for the National Assembly of Pakistan for Constituency NA-177 Dadu-1 and their nomination forms were accepted by the Returning Officer. The petitioner has challenged the nomination of the respondent No,1 on the ground that he did not fulfil requirements as laid down in Article 62(b) of the Constitution of Pakistan, which provides that in case of National Assembly the candidate is to be not less than of 25' years of age.
2. In support of this contention he has relied on two school certificates which show the birth date of the respondent No,1 as 25-12-1966 and therefore according to him he being less than 25 years of age at the time of filing of the present nomination papers, he was disqualified to contest for any seat for National Assembly. The petitioner has also contended that earlier in the 1985 elections the respondent No,1 had contested in the Provincial Assembly from Constituency PS 60 Dadu-I and had been elected but subsequently his election was challenged by way of two election petitions being Nos.44 and 45 of 1985 and that the Election Tribunal after hearing the parties and recording the evidence had set aside his election to the Sind Provincial Assembly declaring the same to be void.
3. It is also admitted that the said orders of the Election Tribunal were challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court was pleased to order to suspend the operation of the said orders of the Election Tribunal. On these grounds the petitioner had filed objections before the Returning Officer against the nomination of the respondent No,1 but the Returning Officer had overruled the said objections. The petitioner, therefore, filed an appeal before the Appellate Authority under section 14(5) of the Representation of the People Act, 1976 but that was also dismissed, therefore, present petition was filed. We have heard Mr. Sabihuddin Ahmad learned counsel for the petitioner. His main contention is that the age of a voter/candidate as mentioned in the Electoral Roll is not final and that the Returning Officer or. Election Authority had the power to hold summary enquiry with regard to age of the candidate and decide any objection raised as provided in section 14 of the Representation of the People Act, 1976. It will be advantageous to reproduce the contents of the above section 14 which are as under: - "14. Scrutinl.--(1) The candidates, their election agents, proposers and seconders and one other person authorised in this behalf of each candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, either of his own motion or upon any direction, conduct such summary enquiry as he may think fit and may reject a nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe (c) to the nomination paper. (Added by Ordinance XIV of 1988);
(d) any provision of section' 12 or section 13 has not been complied with; or
(e) the signature of the proposer or the seconder is not genuine (Added by Ordinance XIV of 1988).
4. ' Provided that--
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate (his proposer or seconder) (Subs. By Ordinance XIV of 1988); and
(iii) the Returning Officer shall not enquire into the correctness ' or validity of any entry in the electoral roll, but shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect."
5. From the above contents of section 14 it will be seen that the Returning Officer does have the power to hold summary enquiry with A regard to deciding the objections but this power is also subject to limitations as provided in the provisos:-
(i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate (his proposer or seconder) (Subs. By Ordinance XIV of 1988); and
(iii) The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll, but shall not reject a nomination paper on the basis of an entry in the electoral roll which contains an obvious error or defect." ##TS# In the instant case proviso (iii) which is applicable specifically provides that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll. From the above it is obvious that the scrutiny which the Returning Officer has to do in this connection is to be based on the entries in the electoral roll which for the purposes are final and he cannot go behind them. In this respect Mr. Sabihuddin Ahmad has relied on the case of Siraj-ul-Islam Khan v. Ihsan Ali Mondal and others PLD 1969 SC 5 and a Full Bench decision of this High Court in case of Muhammad Tufail v. Muhammad Salim and others PLD 1967 Kar.
104. In the above-cited two authorities it was laid down by their Lordships that the entry pertaining to the age with regard to a voter as entered into the electoral roll would be final but the same cannot be treated as final for a person to be a candidate in the elections and further that the Election Tribunal had the jurisdiction to go into question of age of the candidate. In both these cases their Lordships had held that it would be open to the Election Tribunal to go into this question, whereas in the present case Mr. Sabihuddin Ahmad wanted us to hold that the Returning Officer also had the same powers which we are afraid we cannot in view of the specific bar as provided in section 14 of the Representation of the People -Act, 1976. This question would be open for the petitioner to take up before the Election Tribunal in an election petition if such circumstances do arise.
6. ' The learned counsel also laid stress on the judgment of the Election Tribunal passed in the previous Election Petitions Nos.44 and 45 of 1985. Suffice it to say that this judgment has been challenged before the Hon'ble Supreme Court and the operation of the same has been suspended by an order which reads "upon hearing the learned counsel for the petitioner and after examining the judgment, we are of the view that the question of the age of the returned candidate requires examination. Accordingly, we would suspend the operation of the impugned order of the Tribunal till hearing of the appeal." Thus the said judgment of the Tribunal cannot at present to be considered for the purposes of determination of the age of the respondent No,1.
7. ' Lastly, as regard the reliance placed on the two school certificates, the Appellate Authority has relied on a recent D.B. Judgment of this Court given in the case Heesab v. Election Authority Sind and 3 others PLD 1986 Kar. 179 and we find no reasons to differ with the same.
8. ' For the above reasons we find no force in the present petition which is dismissed in limine.
9. ' Above are the reasons for the short order passed by us on 1-11-1988.