' ABDUL MAJEED MALLICK, C.J.---Syed Ghulam Mujtaba Bukhari, petitioner claims to be a refugee from Tehsil Mehndar, District Poonch (Indian occupied part of the State), presently settled in village Khorakka, Tehsil Sohawa, District Jhelum. His name appears in the electoral roll of Constituency L.A.
34, Jammu and others--VI. He has filed his nomination papers to contest the elections to the aforessid seat. Sardar Sikandar Hayat Khan, respondent No,1 is also one of the candidates in the elections for the aforesaid Azad Jammu and Kashmir Legislative Assembly seat. The name of Sardar Sikandar Hayat Khan appears on the electoral roll of Municipal Ward No, 4 of Rawalpindi.
The petitioner has challenged the candidature of respondent No,1 by invoking extraordinary jurisdiction of this Court.
2. It was alleged that Sardar Sikandar Hayat Khan, respondent No,1 was permanent resident of village Karela Majhan, Tehsil Nakial, where his name appeared as an elector on the electoral roll of the area. The respondent contested the elections to the Assembly and was returned as such from the Constituency L.A. 9, Kotli - II in 1970 and in 1985. He was a sitting member of the Assembly and was also elected as Prime Minister. Thus, in view of the petitioner, the respondent, for all practical purposes, was a resident of village Karela Majhan.
3. In the oncoming elections, the respondent filed his nomination papers, to contest elections to LA.34 Jammu and others--VI. An objection to his nomination was raised before the Returning Officer by one Ghulam Sabir (petitioner in other writ petition) but the same was turned down on April 11, 1990. An appeal against the order of acceptance of nomination papers of the respondent before the Chief Election Commissioner, was dismissed on April 19, 1990. The petitioner having no other adequate remedy, felt constrained to invoke extraordinary jurisdiction of this Court, as contemplated under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
Respondent No,l and Chief Election Commissioner, respondent No,2, in their written statements repudiated the allegations made by the petitioner and alleged that the writ petition was incompetent
(i) on account of acquiescence of the petitioner;
(ii) that the points raised in the petition required detailed investigation, including recording of evidence;
(iii) that no violation of law was involved in the case; and
(iv) that the petitioner was vested with a right to agitate all the points raised in the petition, before the Election Tribunal.
4. Ch.Muhammad Akhtar and Ghulam Sabir, petitioners in the second petition, also challenged the candidature of Sardar Sikandar Hayat Khan, respondent No,5 in that petition, and alleged that the petitioners were registered as electors in the electoral roll for the Constituency L.A. 34, Jammu and others-VI. Originally, they were residents of village Gulpera, Tehsil Mirpur and presently they resided in village New Gulpera Dakhli Sanjote, Tehsil Gujar Khan. Their names appeared at Serial Nos. 1 and 2 in the electoral roll of the area. They were contesting candidates for L.A. 34, Jammu and others-- VI.
5.. Sardar Sikandar Hayat Khan was a resident of village Karela Majhan, Tehsil Nakial, where his name appeared on the electoral roll at Serial No,387. The respondent contested the previous elections of the Assembly for LA. 9, Kotli-II, being resident of that constituency. In the on-coming elections, the respondent was again a contesting candidate for LA. 9, Kotli-II. In presence of the aforesaid factual position, the respondent, in violation to the election laws, filed his nomination papers for LA. 34, Jammu and others-VI. The respondent, in exercise of his undue influence, got entry of his name at Serial No, 156 of the electoral roll of LA. 34, Jammu and others - VI. Under law, he could he enrolled as an elector in the electoral roll of the electoral area where he actually resided. As he was not a resident of the Constituency, LA. 34, Jammu and others-VI, registration of his name in the electoral roll, acceptance of his nomination papers and dismissal of appeal by the Chief Election Commissioner, were illegal, unlawful and without jurisdiction.
6. Ghulam Sabir, one of the petitioners objected to the nomination of the respondent before the Returning Officer but the objection was turned down on April 11, 1990. An appeal preferred by him before the Chief Election Commissioner was also dismissed. The petitioners having no other adequate remedy, preferred the writ petition by invoking extraordinary writ jurisdiction of this Court.
7. The Registration Officer, respondent No,4 submitted his written statement through the Registrar of the Court. Respondents No, 2 and 5 contested the petition by repudiating all the averments made therein. In the preliminary objections, it was everred that the writ petition was incompetent for :
(i) failure of the petitioners to object to the enrolment of the respondent before the Registration Officer;
(ii) the points raised in the petition deserve detailed investigation, including recording of evidence;
(iii) no point of law was involved in the case; and
(iv) the petitioners had adequate remedy in the shape of election petition.
' Respondent No, 5 reiterated his claim to contest elections to both the seats of the Assembly, viz. LA. 9, Kotli-II and L.A. 34, Jammu and others - VI. The respondent alleged that he was a resident of Satellite Town, Rawalpindi Municipal Ward No, 4, as such was not disqualified to contest the elections in dispute.
8. In written statement of the Chief Election Commissioner, it was stated that Ghulam Sabir was a brother of Akhtar Hussain. Practically, he had withdrawn from the coiflest, as such he was not an aggrieved person. Akhtar Hussain, petitioner failed to object to the nomination of the respondent before the Returning Officer and Chief Election Commissioner, as such, he was also not an aggrieved person. Next, it was contended that the nomination of a candidate was not open to challenge except through the election petition before the Election Tribunal. Likewise, the electoral rolls wherein the names of the petitioners and respondent No,5 appeared, became final after the notice of the elections, it could not be disturbed at this stage and that the Returning Officer and Chief Election Commissioner were incompetent to modify the electoral rolls, by excluding the name of the respondent. Thus, the orders of acceptance of nomination papers and dismissal of the appeal, were quite legal.
9. Agha Ashiq Hussain, the learned Counsel appeared on behalf of the petitioners in both the cases.
Likewise, Mr. S.M. Zafar. a senior Counsel represented Sardar Sikandar Hayat Khan in both the petitions. The learned Counsel for the parties addressed common arguments in both the petitions.
It is, therefore, proposed to dispose of the petitions by common order.
10. The preliminary objections raised in the written statements of the contesting respondents, were not pressed into service except that this Court may refrain from exercising its extraordinary jurisdiction at this stage by allowing the respondent (Sardar Sikandar Hayat Khan) to contest the elections as the law provided adequate remedy against an illegality, committed during the process of election, in the shape of election petition before Election Tribunal. Mr. Muhsmmad Hanif Khan, the learned Counsel for Chief Election Commissioner, in support of his contention, cited PLD 1961 SC 145, PLD 1962 (W.P.) Lahore 421, PLD 1965 (W.P.) Karachi 625, PLD 1967 SC 569, PLD 1970 Lahore 596, PLD 1971 Lahore 737, PLD 1984 Quetta 111, PLD 1985 SC (AJ&K) 85 and 1985 SCMR 729.
11. We have examined the proposition raised by the learned Counsel for the respondents. It is undenied that the law provided a remedy of election petition before the Election Tribunal as contemplated under section 64 of the Azad Jammu and Kashmir Legislative Assembly (Elections)
Ordinance, 1970. The Election Tribunal, initially, was competent to look into, among others, the validity of the nomination of a returned candidate and the qualifications and disqualifications of his being elected as a member as contemplated under subsection (1) (a) and (b). By an Amendment Act of 1985, the aforesaid questions were excluded from the jurisdiction of the Election Tribunal and the Election Tribunal was left with jurisdiction in the matters listed in clauses (c) and (d).
12. Besides that, this proposition was raised before the Supreme Court in an application for interim injunction by the learned Counsel for the respondent. The learned Acting Chief Justice of the Supreme Court attended the proposition at considerable length by going through the authorities cited on behalf of the respondent and arrived at the conclusion that the case-law cited by the learned Counsel was of no help as, in the situation, the High Court was not debarred from exercising its extraordinary jurisdiction in appropriate cases.
13. Mr. S.M. Zaffar, however, made a suggestion that the Court may leave the proposition unresolved to enable the Election Tribunal to decide it at appropriate time. It was argued that in case the election of the respondent was found void on account of illegality committed by him, the whole election shall be set aside and in that case, all the contesting candidates, who presently, for one or the other consideration, have already withdrawn, shall have the opportunity to contest the election.
In case the respondent was deprived of contesting the election on account of the alleged disqualification for his being non-resident of the Constituency in question, the political party to which the respondent belongs, would be deprived of the seat of the Assembly. Moreover, the candidates who have already withdrawn, shall also he deprived of their statutory right to contest election to the seat of the Assembly. In reply to the aforesaid arguments, Mr. Muhammad Siddique Farooqi, who appeared as amicus curiae, explained that by allowing the respondent to contest election despite the fact that he was disqualified to do so, would amount to allow multiplicity of illegalities likely to be committed till the elections were held void by the Election Tribunal. It was elaboreted that in 'case the respondent was returned from the seat, he will obviously be free to vote in the election of the Speaker, the Prime Minister and the President and by the time the Election Tribunal decides the election petition, these stages will be over. He made a counter-suggestion that the chance of perpetuating the illegality by allowing a person who, in the eye of law, was disqualified to put up his candidature, would comparatively be more harmful and unjust than by disallowing him to contest the election. We, in our earnest consideration, agree with the second view, irrespective of the fact whether some harm will he caused or not as, in our estimation, once it is satisfied that a person is not qualified or is disqualfied, he cannot exercise the right to contest election. This Court, being a Court of law, has to adhere to the rules of law, irrespective of the consequences flowing, therefrom. The objection is, therefore, not sustained.
14. The substance of the points agitated by Agha Ashiq Hussain, the learned Counsel for the petitioners, is that in presence of the admitted position that Sardar Sikander Hayat Khan is resident of village Karela Majhan where his name appears on the elector roll of electoral area LA-9,, Kotli-2 and that he has also filed his nomination papers to contest the oncoming elections for the same seat and that he was a sitting Member Legislative Assembly against the said seat, obviously would suggest that entry of his name in the electoral roll for Constituency LA-34 Jammu and others-VI was in contravention of law. Moreover, keeping in view the provisions of section 13 read with section 12 of the Elections Ordinance I of 1970, he was disqualified to contest election for Constituency LA- 34 Jammu and others- VI.
15. The scheme of constitution of Legislative Assembly, as contemplated in the Constitution and other laws, has to be kept in view while resolving the controversy under consideration. Article 22(1) of the Azad Jammu Kashmir Interim Constitution Act, 1974 postulates that the Legislature of Azad Jammu and Kashmir shall consist of a Legislative Assembly consisting of forty-eight members of whom--
(a) forty shall be elected directly on the basis of adult franchise;
(b) ...........................
(c) one who shall be from amongst the Ulema-e-Din or Mushaikh and well-versed with the teachings of Islam, shall be elected by the directly elected members;
(d) one, who shall be from amongst the Jammu and Kashmir State subjects residing abroad, shall be elected by the directly elected members;
(e) ...........................
Section 24 (1) of the Act postulates the qualifications applicable to a person to be elected as a member of the Assembly. These are :
(a) that he is a State subject;
(b) that he is not less than twenty-five years of age; and
(c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan.
' Subsection (2) postulates that a person shall be disqualified from being so elected if--he is otherwise disqualified from being a member of the Assembly by this Act or by or under any other law.
' The disqualifications referred to in clause (f) are available in other election laws. Among them, the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 (Ordinance VI of 1970) is relevant to the proposition. Its section 2 is reproduced:- "Composition of the Legislative Assembly.-- As soon as may be after the promulgation of this Ordinance and notwithstanding anything contained in the Azad Jammu and Kashmir Government Act, 1968,there shall be constituted in the manner hereinafter appearing a Legislative Assembly consisting of-
(1) twenty-eight members to be elected by the State subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir;
(2) six members to be elected from amongst themselves by the refugees from the occupied areas of districts of Muzaffarabad, Anantnag (Islamabad) and Baramula as these existed on 14th day of August, 1947, who are now residing in any of the provinces of the Punjab, Balochistan, Sindh and North-West Frontier Province;
(3) six members to be elected from amongst themselves by such of the State subjects from other parts of the State of Jammu and Kashmir, and State subjects originally residing in territories under the administration of Azad Government of the State of Jammu and Kashmir, as are now residing in the Provinces referred to in clause (2); (4)
16. It is important to note that the composition of the Legislative Assembly, as contemplated under section 2, rests on three categories of the members elected by the State subjects residing at different places. Such a composition is not available in any other State of the world including India and Pakistan. It is, therefore, to be kept in mind that the aforesaid composition of the Legislative Assembly has been framed in view of the extraordinary position of the State as its future status is yet to be determined. The State subjects are residing, in addition to Azad Kashmir territory, in Pakistan and foreign countries. The framers of the scheme, under a well-considered plan thought it fit to provide representation to all sections of the State people to maintain and keep intact the unity and identity of the State to enable the State subjects to exercise their right of self-determination in the manner of plebiscite as recognised by the UNCIP and Security Council Resolutions, to determine their future status.
17. Here it would be conducive to advert to the history of adult sufferage in the State, for facility of the proposition under consideration: ' The people of the State right from usurpation of their sovereignty by Dogra ruler by virtue of Treaty of Lahore of March 9, 1846 and Treaty of Amritsar of March 16, 1846, never acknowledged the right of despot to rule them. They uprose against the despotic rule from time to time and lately the movement assumed agitation shape in July, and October, 1931. In consequence of the sacrifices made by the people, some of their rights were accepted, in lieu of which Praja Sabha, the Legislative Assembly, was constituted in Dogra regime. The Praja Sabha consisted of 75 members, out of whom forty were elected directly. Be that as it may, in 1947, on emergence of free States of India and Pakistan, the people of the State of Jammu and Kashmir advised the ruler of the State to accede to Pakistan. On apprehending conspiracy between the Congress leaders and the ruler of the State, the people rose in revolt against the ruler and secured freedom of part of the areas of the State. On October 24, 1947, free revolutionary Government was formed. This Government was declared to be the Government of the whole of the State of Jammu and Kashmir representing all sections of population. On cease-fire truce, the right of self-determination of the people was acknowledged in the United Nations in the shape of resolutions on August 13, 1948 and January 5, 1949. As the future of the State was likely to be determined by free and impartial plebiscite, the provisional Government of Azad Jammu and Kashmir continued to be nominated by the working committee of All Jammu and Kashmir Muslim Conference as recognised by the Kashmir Affairs Ministry. The constitution of the Government, exercising legislative, executive and other allied functions, was governed by the Rules of Business of 1950, 1956 and 1958. In 1960, the constitution of the Government received a new attention and approach, on account of which right of vote was given to the citizens to enable them to elect their representatives at the level of Union Councils, Town and Area Committees. During this period, as a part of the scheme of franchise, the Azad Jammu and Kashmir Refugees Registration and Representation Act, 1960 was also enforced. It was deemed expedient to associate the refugees of Jammu and Kashmir State residing in Pakistan in the election of the President and members of the Council of Azad Government of the State of Jammu and Kashmir. Thus the representatives from amongst the refugees so elected under the aforesaid Act, alongwith the elected members of the Basic Democracies, constituted the electoral college for election to the office of the President of Azad Jammu and Kashmir as well as the Council of Azad Government of the State of Jammu and Kashmir.
18. The Council was composed of twelvs members, out of which six members were to be elected out of the elected members of the Basic Democracies within Azad Jammu and Kashmir territory, three members were elected out of the representatives of refugees from the Province of Kashmir and three members from the representatives of refugees from Jammu. The composition and constitution of the Council, later on known as the State Council, was modified and changed according to the circumstances in 1964, 1968 and 1970 when instead of State Council, Legislative Assembly was constituted. The provisions of section 2 of the Ordinance described above, were framed so as to give representation to all sections of the State subjects in the Legislative Assembly.
19. We have recorded the history of composition of the Council in order to highlight the object of the scheme of composition of the Legislative Assembly representing the State subjects residing within Azad Jammu and Kashmir territory, the State subjects from the occupied parts of districts Muzaffarabad, Baramula and Islamabad of Kashmir Province and other occupied parts of the State including the State subjects who originally resided in Azad Jammu and Kashmir but were presently residing in Paksitan.
20. Mr. S.M. Zafar, the learned Counsel, developed his argument in support of nomination of Sardar Sikandar Hayat Khan, respondent, by reference to clause (c), subsection (1) of section 24 of the Constitution to convince that a person was qualified to be elected as a member of the Assembly if his name appeared on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan. It was elaborated that once the name of a person was brought on the electoral roll, whether that electoral roll was for a constituency in Azad Jammu and Kashmir or a constituency in Pakistan, he was qualified to contest elections. As the name of the respondent appeared on the electoral roll for the Constituency LA-34 Jammu and others-VI, he was, in view of the learned Counsel, qualified to be elected as a member of the Assembly. It was emphasised that the respondent was protected by the operative part of clause (3) of section 2 of Ordinance VI of 1970 which referred to State subjects of other parts of the State, irrespective of the fact that they resided in Pakistan or not. Reference was made to a document showing thereby that late Sardar Fatah Muhammad, father of the respondent, secured a claim against his landed and some built-up property in a village of Tehsil Mehndar, showing thereby that the respondent was also a refugee from the occupied part of the State and by virtue of that, he was qualified to be elected as a member of the Assembly. Much effort was made to satisfy that reference to the words "residing in" used in categories (1) and (2) and concluding part of category (3) was deliberately avoided in the case of operative part of category (3). It was done to enable all the State subjects to exercise their right of franchise for being elected as members of the Assembly. The learned Counsel argued that irrespective of the fact that the respondent resided in Satellite Town, Rawalpindi or not, by virtue of the operative part of this provision, once his name appeared on the roll of the electoral area of either of the Constituencies, he was qualified to be elected as Member of the Assembly. Mr. Muhammad Siddique Farooqi, who appeared as amicus curiae, interpreted the provision in a different manner and argued that the words "as are now residing" used in the concluding part of category (3) were applicable to both, the State subjects from other parts of the State of Jammu and Kashmir and State subjects originally residing in the territory of Azad Jammu and Kashmir. The learned Counsel pointed out that if we omit to read the words "as are now residing" alongwith the operative part of category (3), the whole scheme becomes absurd as in that case all the State subjects including those now residing in the occupied part of the State shall be deemed to have a right to be elected as Member Legislative Assembly.
21. We have given the summary of the development of constitutional representation given to the State subjects during the transitory period till such time the right of self-determination is achieved.
Unless we keep in view the aforesaid constitutional development, it would be difficult to appreciate the scheme of composition of the present Azad Jammu and Kashmir Legislative Assembly.
22. It is undenied that the framers of the Constitution and scheme of composition of the Assembly, purposely gave representation to all sections of the State subjects residing at different places including those settled in Pakistan and abroad. In case of twenty-eight members to be elected by the State subjects residing in Azad Jammu and Kashmir territory, there was no restriction, whatsoever, except the qualifications and disqualfications listed under section 24 of the Constitution and other allied laws applying to the election of members of the Assembly. It is permissible for a State subject from the occupied areas of the districts of Muzaffarabad, Islamabad and Baramula and other occupied parts of the State, to contest elections as member of the Assembly against any one or more than one seat. But this concession was not available to the State subjects residing in the territories now under the administration of the Azad Government of the State of Jammu and Kashmir to seek election against either of the seats reserved for the State subjects falling under category (2) or (3). This interpretation finds support from the departmental interpretation listed in instruction No, 4 of the Manual of Instructions issued by the Chief Election Commissioner, Azad Government of the State of Jammu and Kashmir, in 1990. It is reproduced: "Forty members falling under the following three categories are to be returned to the Assembly by direct vote, namely--
(i) twenty-eight members to be elected by the State subjects from twenty-eight territorial constituencies comprising the territory of Azad Jammu and Kashmir;
(ii) six members to be elected by the State subjects "from amongst themselves" who being refugees from the occupied areas in the districts of Muzaffarabad, Anantnag, Islamabad and Baramula, (hereinafter called the valley) are now resident in Pakistan; these six seats which are non-territorial are called "the Valley Seats"' and
(iii) six members to be elected by the State subjects, "from amongst themselves" who being resident in Pakistan, are either refugees from the occupied areas of the former State not being "the Valley" or belong to the territory of the Azad Government of Jammu and Kashmir; these six seats are called "Jammu and others", and are also non-territorial.
' From this analysis, two things are noteworthy: First: A State subject enrolled as voter in a constituency falling under the second or third category would, on the basis of that enrolment, be eligible to contest election from a constituency falling under the first category also. Second: Election to any of the six seats falling under the second, or as the case may be, the third category can be contested by a State subject only if he is enrolled as voter in any of the six constituencies in that particular category.
' This is the outcome of the limiting words, "from amongst themselves" in subsections (2) and (3) of section 2 of AJ&K Legislative Assembly (Elections) Ordinance, 1970 (Ordinance III of 1970) in respect of membership falling under the second and third categories and the absence of similar limiting words in subsection (1) ibid in respect of the twenty-eight seats falling under the first category."
' The conditions precedent to candidature of members to be elected against the seats reserved for category (3) are:--
(i) that the members are to be elected from amongst the State subjects of other parts of the State of Jammu and Kashmir and State subjects originally residing in Azad Jammu and Kashmir territory; and
(ii) that such State subjects must now be residing, in Pakistan as described in case of category (2).
' Thus, firstly, 'members are to be elected from amongst the State subjects falling under category
(3) and such State subjects are required to be residing in Pakistan. The suggestion that the words as are now residing" used in subsection (3) of section 2 were not applicable to the operative part relating to State subjects from other parts of the State of Jammu and Kashmir, was incorrect. Such interpetation is not found reasonable and natural to the characteristic scheme of composition of the Legislative Assembly. Moreover, if the aforesaid words are not read conjunctively alongwith the operative part, that part of clause (3) conveys no meaning at all. The words "as are now residing" used in the concluding part obviously refers to both sections of the State subjects enumerated in clause (3) of section 2 of the Ordinance. It is, therefore, held that in order to seek election as member of the Legislative Assembly, the State subject claiming his position emongst the State subjects falling under clause (3), has to prove and satisfy that he was residing in Pakistan at the time of notification of the election schedule. The aforesaid restriction was applicable in case of all persons falling under clause (3) irrespective of the fact that their names were recorded in the electoral roll of any one of the constituencies in Pakistan.
23. Section 10 of the Electoral Rolls Ordinance, 1970 lays down the scheme including the conditions for preparation of electoral rolls. It provides that the electoral roll of an electoral area shall be prepared, containing the names of State subjects who, on the specific date, were qualified to exercise their right of vote. The Registration Officer was enjoined to enter the name of a State subject in the electoral roll of an electoral area on the satisfaction that such State subject was resident in the electoral area. In order to determine the residence of a State subject, the conditions laid down in section 12 of the Ordinance were to be kept in view. The other condition or restriction applicable to a State subject whose name was to be enrolled in the electoral roll of an electoral ares, was that he was not entitled to be enrolled on the electoral roll for any electoral area more than once or on the electoral rolls for more than one electoral area. These restrictions were enumerated in section 13. The controversy raised in the present case being confined to the proposition of ordinary residence of the respondent as well as appearance of his name in more than one electoral rolls of different electoral areas, it is thought conducive to reproduce the provisions: "12. Meaning of "resident".--(1) Save as hereinafter provided, a person shall be deemed to he resident in an electoral area if he--
(a) Ordinarily resides in that area; or
(b) owns or is in possession of dwelling house or immovable property in an electoral area in the territories administered by the Government: ' Provided that where any such person owns or possesses more than one dwelling house or other immovable property in more than one electoral area in such territories, he, his wife and children ordinarily resident with him if otherwise eligible for enrolment, may at his option be enrolled in any one of such areas.
(2) A person who for any reason resides in an electoral area other than electoral area in which he would have but for such reason been resident shall, unless he otherwise indicates in writing to the Registration Officer, be deemed to he resident in the latter electoral area.
(3) The wife of any such person as is referred to in subsection (2) shall, if she ordinarily resides with such person, be deemed to he resident in the electoral area in which her husband is deemed to be resident under that subsection.
(4) A person who is detained in prison or other legal custody shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained.
(5) Where the residence of a State subject is in doubt, he may himself indicate the electoral area on the electoral roll of which he desires to be enrolled.
13. No person to be enrolled more than once or in more than one electoral area:-- ' No person shall be entitled to be enrolled--
(a) on the electoral rolls for any electoral area more than once; or
(b) on the electoral rolls for more than one electoral area."
24. The Legislature has defined the term "resident" by reference to a person when he ordinarily resided in a particular area or he was owner or in possession of a dwelling house or other immovable property in an electoral area in the territories administered by the Government. In present case, we are primarily concerned with the proposition relating to ordinary residence of the respondent, as alleged by him, in Pakistan. Therefore, we need not go into the other description listed under clause (b). In our view, clause (b) refers to the territories administered by the Government, meaning thereby the Government of Azad Jammu and Kashmir. Thus, we are left only to construe the meaning and scope of the term "ordinary resident". In general terms, a person shall be deemed to be resident of a place where he lives alongwith his family, if any, showing his intention thereby that for all practical purposes, he resided therein. An occasional visit or stay due to some urgency, official visit or pleasure trip would not conceive the stay of that person in the premises as his ordinary residence. In other words, it requires actual physical use of the premises in the area for residential purposes of the person concerned. Any occupation or stay at a particular place, short of the aforesaid position, would not denote that place as place of his ordinary residence.
25. We are alive to the practical proposition that a person may have more than one ordinary residence in different cities or parts of a country and when faced with such a situation like the one now under consideration, may assert his claim to be resident of all the places or either of them or more than one of such place. In that situation, section 12 alone would not be sufficient to help in resolving the controversy. But when the provisions of section 12 are to be construed alongwith the provisions of section 13, the difficulty is obviously removed. In that case, the claimant of a particular place as his ordinary place of residence, would have to make a choice only for one place, where he would be enrolled as an elector for the purpose of preparation of electoral rolls of an electoral area.
26. The provisions of the Electoral Rolls Ordinance and the Electoral Rolls Rules provide that once the ordinary residence of a person was registered in the electoral roll, he was not bound to remain attached to that particular place to maintain it as his ordinary place of residence, being a free person or in performance of his official or other duties or for some other consideration, he may change his ordinary place of residence. In such a case, the law provided a mode as contemplated under Rule 4(1) of the Electoral Rolls Rules read with section 12(2) of the Electoral Rolls Ordinance.
The framers of law prescribed Form II at page 10 of the Electoral Rolls Rules, 1970, whereby the person concerned had to make a declaration of his previous place of residence and the place where he presently resided where he wanted to be enrolled on the electoral roll of that particular area.
27. Now, we advert to the proposition relating to ordinary residence of the respondent, in the light of the aforessid scheme of law to reach a conclusion as to whether the respondent in fact ordinarily resided in House No, F/877, Satellite Town, Municipal Ward No, 4, Rawalpindi, Constituency LA-34 Jammu and others-VI, as claimed by him.
28. It is undenied that Sardar Sikandar Hayat Khan respondent resided in village Karela Majhan, Tehsil Fatehpur Nakial, District Kotli, and that his name appeared on the electoral roll of the area of Constituency LA-9 Kotli-2 at serial number 387 alongwith the names of other members of his family. A copy of the electoral roll of that area is on the file of this Court. It was also unequivocally admitted through Mr. Muhammad Hanif, Advocate who, in answer to a question of the Court, said that the respondent permanently resided in village Karela Majhan, but explained that now he was residing in Satellite Town, Rawalpindi. It is also undenied that the respondent was elected as member of the Assembly in the general elections held in 1970 and 1985 from the said Constituency on the basis of appearance of his name on the electoral roll of that Constituancy, showing his ordinary place of residence in village Karcla Majhan. It is admitted to the respondent that he is a candidate in Constituency LA-9, Kotli-2 in the oncoming elections scheduled to be held on May 21.
It is also admitted that in his nomination pepers, as a candidate in Constituency LA-9 Kotli-2, he made a declaration under his signature wherein his place of residence was described in village Karela Majhan, showing his name in the electoral roll at serial number 387 and claiming to be qualified and not disqualified to be elected as member of the Assembly. Another relevant factual proposition is that the respondent adhered to his claim to be resident of Satellite Town. Rawalpindi, but nowhere in the written statement or arguments, it was accepted that subsequently by shifting his ordinary place of residence from village Karela Majhan to Satellite Town, Rawalpindi, he fulfilled the conditions laid down under Rule 4(1), described in Form II appended with the Electoral Rolls Rules, 1970. The aforesaid statement of facts leads us to the conclusion that the ordinary place of residence of the respondent was village Karela Majhan, Tehail Fatehpur Nakial.
29. Mr. S.M. Zaffar, the learned Counsel for the respondent, at one stage, emphasised that the respondent was a refugee from Indian occupied part of the State and in support of his alleged claim, reference was made to a copy of a claim purported to be verified in the name of his father.
Irrespective of the evidentiary value of the document, once it is satisfied that the respondent ordinarily resided in village Karela Majhan, his status as a refugee was not going to help him to wriggle out of the difficulty, unless, of course, he satisfied that being a refugee, he, now resided in Pakistan. In presence of sufficient material on record, necessitating no further investigation or recording of evidence, it is permissible to resolve the controversy in question, in the aforesaid manner.
30. It is interesting to note that the name of the respondent appears on the electoral rolls not only of Karela Majhan and Satallite Town, Rawalpindi but it appears also on the electoral roll of electoral areas Khandar and Kotli city. Thus, the respondent is enrolled at one time at four places. In appeal before the Chief Election Commissioner, his attention was invited to the fact that the name of the respondent appeared on the electoral rolls of more than one electoral area, but the learned Chief Election Commissioner instead of attending to the point at issue, adverted to the provisions of the Electoral Rolls Ordinance and the Rules and bypassed the real objection of the petitioner. The fact of the matter is that the Chief Election Commissioner and prior to him the Returning Officer, were enjoined to satisfy that the respondent was not disqualified to be elected as member of the Assembly by making a summary enquiry into the allegations ascribed to him and on satisfaction that no disqualification was attracted in his case, they could have accepted his nomination. This has not been done in the present case. So, it is a case of clear departure from the norms of exercise of authority and jurisdiction.
31. As noticed earlier, the respondent could not be enrolled more than once or at more than one electoral area as contemplated under section 13 of the Electoral Rolls Ordinance. Appearance of his name in four different electoral areas was violative of the provisions of section 13. It was argued that the provisions of section 13 were directory and not mandatory as no penalty was attached to its violation. The proposition of directory and mandatory character of legal provisions is of wide import. In some cases, the provisions of law were held directory even in absence of its penal aspect. The proposition also received attention of the Supreme Court in the present case on this aspect and the learned Acting Chief Justice made observation to that aspect by unsustaining the objection of the learned counsel for the respondent.
32. In present case, section 66 of the Azad Jammu and Kashmir Legislative Assembly (Elections)
Ordinance, 1970 postulated that the Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election was materially affected by reason of failure of any person to comply with the provisions of the Ordinance or the Rules. Reference to the words "failure of any person" is of wide import. When an election is materially affected on account of any action or omission of any person, including the Registration Officer, the Returning Officer, the Chief Election Commissioner, the candidate or his agent and all others who were attached with holding of the election, the election as a whole would be rendered void. In presence of the aforesaid penal clause, it is quite understandable that violation of the provisions of sections 12 and 13, which are interconnected, would obviously render the election void as a whole.
33. Mr. S.M. Zaffar, the learned Counsel argued that the electoral roll could not be modified or amended after issuing notice of the elections. Therefore, whether an entry in the electoral roll was correct or incorrect, irrespective of that, the electoral roll could not be disturbed by any authority or Court, including this Court, after announcement of the election schedule. The learned Counsel also made a reference to certain provisions of the Electoral Rolls Ordinance showing thereby that if a person, whose name appears in the electoral roll more than once or in more than one electoral areas, he would not be deprived of his right to cast vote on that count. One that premises, the respondent whose name appeared on the electoral roll of electoral area of Constituency LA-34 Jammu and others-VI, was entitled to cast his vote in that constituency and when that was permissible, he could also contest election for the same scat of the Assembly. The learned Counsel ignored the other allied provisions relating to penal action against violation of the provisions of the Ordinance and the Rules as any person who was found casting his vote more than once or in more than one electoral areas,was guilty of an offence under the provisions of the Ordinance. Moreover, casting of a bogus vote in derogation and violation of provisions of section 13, would not be relevant unless the number of such bogus votes was such that by virtue of that illegality and corrupt practice, the result of election in that Constituency was materially affected. Once it was satisfied that on account of casting of illegal votes by personation or otherwise, the result of the election was materially affected, it was available to the Election Tribunal to declare the election void as a whole. Here in this case, the position of the respondent was altogether different from a person who was enrolled more than once or in more than one electoral area as an elector merely to cast his votes. In this case, when the respondent was allowed to contest the election in presence of disqualification elaborated above, it is undenied that the result of the election would be materially affected. Therefore, it was not permissible to allow a person disqualified to be elected as a member, to contest election of the Assembly.
34. Before concluding this aspect of the proposition, we would like to mention that it is on record that House No, F/877 Satellite Town, Rawalpindi, was the residence of Mr. Hamced Akhtar who resided there alongwith his family. The name of Mr. Hameed Akhtar and his family was registered in the electoral roll of Ward No,
4. At no stage of the proceedings, the respondent claimed that he was the owner of the house or that he was a member of the family or that Mr. Hameed Akhtar and his family was not residing in that house. This state of facts, clearly leads to the inference that the respondent was not a resident of Satellite Town, Rawalpindi and an effort was made to make use of the entry in the electoral roll to contest the election. Mr. S.M. Zaffar, in the mid of his arguments, emphasised that may be that the respondent was not the person who arranged registration of his name in the electoral roll of the area and it was his brother or a friend and for that he may not suffer. Factually, it may be the action of some one alse, but the fact remains that at no stage, the respondent volunteered to admit that the entry was not made at his instance or at least with his consent. The fact of the matter is that the respondent ultimately adhered to the position that he, was resident of both the places, viz., village Karela Majhan and Satellite Town, Rawalpindi.
35. As an alternate argument, it was suggested by Mr. S.M. Zaffar that in case of controversy regarding different places of residence of a person, subsection (2) of section 12 of the Electoral Rolls Ordinance provided him protection to claim the latter place of residence as his ordinary place of residence. Satellite Town, Rawalpindi, where the respondent presently claims to be residing being latter place, it was suggested that he was eligible to contest the election. We are unable to subscribe to the aforesaid interpretation of subsection (2) of section 12 of the Ordinance.
Subsection (2) as already recorded somewhere else, is to be construed alongwith rule 4(1) read with the appended Form II. On going through the description of appended Form II at page 10 of the Electoral Rolls Rules and the provisions of sub-rule (1) of Rule 4, it is safe to construe that reference to worde "be deemed to be resident in the latter electoral area" mean the electoral area where the person previously resided and was enrolled as an elector. It does not mean the subsequent place or the present place of residence of the person. The scheme of law as described in the aforesaid provisions suggests that unless the person who presently resided in an electoral area other than the electoral area where his name appeared as an elector, unless he prositively intimated in writing to the Registration Officer, he shall be deemed to be resident of the previous electoral area.
In other words, it was enjoined upon an elector who presently resided in a different electoral area, in case he wanted to be enrolled in the electoral roll of that area, to apply to the Registration Officer intimating thereby the change of his place of residence as prescribed if Form II. Therefore, reference to "latter electoral area" in subsection (2) of section 12 of the Ordinance shall be deemed as reference to electoral area where the name of the person was already enrolled as an elector.
36. When the matter was taken to the Supreme Court in the manner of application for stay order, the question of ordinary residence of the respondent was also raised before the Court. The learned Acting Chief Justice anyalsed the point by reference to document relating to immovable property purchased in the name of the respondent within the limits of Constituency LA-34 Jammu and Others-VI. The learned Chief Justice made the following observations:- "By 1.30 p.m. On 14th instant, a copy of the sale-deed executed in favour of the applicant has also been placed on the record which, prime facie, shows that the applicant is an owner of a house in the relevant electoral area, i.e, Constituency LA-34 Jammu and others-6. However, the question still remains as to whether if a person owns or possesses property at two places, can he be enrolled as voter twice despite bar contained in section 13 of the Electoral Rolls Ordinance 1970."
' When the proposition was raised before the learned Acting Chief Justice by the learned Counsel for the applicant that the High Court had no jurisdiction in the matter because the applicant was resident of the electoral area at Rawalpindi, the learned Chief Justice posed a counter-question to the learned Counsel in the following words:- "When the learned Counsel was confronted with the situation as to how he would override the hurdle created by section 13 when a voter cannot be registered as such in two places, the learned Counsel maintained that it would not make any difference."
' The observation recorded previously was made in the context of the question posed in the subsequent observation of the Court. Next, this suggests that the learned Acting Chief Justice of the Supreme Court, as a matter of fact, provided guidance in the matter that in view of the provisions of section 13, the respondent could not be enrolled twice as an elector in more than one electoral area. Mr. Justice Basharat Ahmad Shaikh, the learned Judge of the Supreme Court, while dealing with the point at issue, in his separate order, observed:-- "We drew the attention of the learned counsel for the petitioner to subsection (3) of section 13 of the Azad Jammu and Kashmir Lagislative Assembly (Elections) Ordinance and asked him whether the Returning Officer could reject the nomination paper of the applicant if he reached the conclusion that the applicant was not qualified to be elected from Constituency LA-34 Jammu and others-6.
Malik Muhammad Aslam Khan said that he had that power."
37. It is, therefore, quite clear from the aforesaid verdict of the Supreme Court that the respondent was not entitled to be enrolled as an elector more than once or in more than one electoral area. His ordinary place of residence being village Karela Majhan from where he was also contesting election in Constituency LA-9 Kotli-2, it shall be deemed that he was disqualified to be a candidate in the election in Constituency LA-34 Jammu and others-6.
38. Mr. M. Nisar Mirza, the learned Additional Advocate-General, who ppeared as amicus curiae, proposed that the proposition under consideration may be left out at this stage by allowing the respondent to contest the election so that the point at issue was resolved exhaustively in election petition by the Election Tribunal. In other words, it was suggested that in presence of alternative adequate remedy contemplated under the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance contained in section 64, this Court was incompetent to lay its hands on the proposition. It is already observed by us elsewhere that the objections relating to qualifications and disqualifications of a candidate were not within the competence of the Election Tribunal after amendment of clauses (a) and (b) of section 64 of the Ordinance. Therefore, in absence of jurisdiction of the Election Tribunal, the aforesaid suggestion carried no weight. However, it may be brought on record that this point too received attention of the Supreme Court in the application of the respondent for interim injunction. Mr. Justice Basharat Ahmad Sheikh attended the point and observed as: "The provision of law extracted above shows that the Election Tribunal cannot set aside the election of a returned candidate if his nomination paper had been illegally accepted or if he was not qualified to be elected as a member. It shows that the petitioner cannot raise the present controversy before the Election Tribunal. It cannot, therefore, be said that the non-petitioners had any other remedy available to them. If we add to it the fact that no Election Tribunal is in existence today the matter assumes greater importance."
' Mr. Justice Sardar Said Muhammad Khan, the learned Acting Chief Justice, at page 25 of his order, resolved the proposition as: "It is evident that after deleting the aforesaid provisions by amendment, no remedy is available by resorting to Election Tribunal in case of rejection or acceptance of the nomination paper and, thus, the aforesaid authority does not help the case of the applicant; rather the amendment negates the validity of the arguments of the learned Counsel for the applicant that where alternative remedy is available, writ jurisdiction cannot be invoked."
38. Mr. S.M. Zaffar, the learned Counsel emphasised that in exercise of writ jurisdiction, this Court was not empowered to disturb the electoral roll relating to Constituency LA-34 Jammu and others- 6 carrying the name of the respondent at serial number 156. Unless the electoral roll was modified, the respondent was qualified to contest the election. We are unable to subscribe to the aforesaid view of the learned Counsel. It is within the competence of this Court to modify or amend the electoral roll at any stage once it was satisfied that the same was prepared in an illegal and unlawful manner, in wrong exercise of jurisdiction by the Registration Officer under the direction of the Election Commissioner. The authority of this Court as contemplated under section 44 of the Azad Jammu and Kashmir Interim Constitution Act is quite comprehensive. Such authority was enforceable in all such cases unless it was precluded by an express provision of the Constitution itself. It is admitted that there is no such provision in the Constitution whereby the authority of this Court is precluded to set aside or modify an entry made in wrong exercise of jurisdiction. Therefore, the objection is not sustainable. We may also make a reference to the observation of Mr. Justice Basharat Ahmed Sheikh, the learned Judge of the Supreme Court, in this context, in support of our view. The relevant observation appears at pages 40 and 41:-- "I now pass on to the argument that finality attaches to electoral rolls and the Returning Officer was bound by the entries of the electoral rolls. Based on this argument the contention is that since the Returning Officer had no authority to inquire into the correctness of an entry in the electoral roll, the High Court would not be competent to declare his action as invalid because he had implemented the law rather than violating it. This contention of the learned Counsel is not correct because the Raturning Officer is not bound by the entries of the electoral rolls in cases where there is a dispute about qualification or disqualification of a candidate. The Supreme Court of Pakistan examined this question in Serajul Islam Khan's case (PLD 1969 S.C. 5) and held that the finality attaching to the electoral rolls only relates to a voter and does not extend to qualifications which are necessary for a voter to become a candidate. In that case the qualification in dispute was age of the candidate."
39. The Returning Officer was competent to hold a summary inquiry to determine the objection relating to disqualification of the respondent at the time of scrutiny of nomination papers of the respondent, particularly so when an objection to that effect was raised by Ghulam Sabir, petitioner, one of the contesting candidates in the constituency. It appears from the order of the Raturning Officer that the objection was not attended in the light of the provisions of law, and rather it was disposed of in derogation to law. Likewise, the Chief Election Commissioner before whom appeal was preferred, bypassed the true controversy relating to registration of the name of the respondent in two different electoral rolls of different electoral areas. It was enjoined upon the Chief Election Commissioner to decide the point in view of the provisions of section 12 read with the provisions of section 13 of the Electoral Rolls Ordinance, 1970. An omission to exercise the jurisdiction in accordance with law, reflects non-exercise of jurisdiction in the case. The impugned orders passed by the Returning Officer and the Chief Election Commissioner are shown to have been passed in derogation to the provisions of law. The same are, therefore, held as without lawful authority and of no legal affect. It is within the competence of this Court to declare the orders of the respondents, the Chief Election Commissioner and the Returning Officer, as without lawful authority, in exercise of powers conferred upon this Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. This view finds support from the observation of the Supreme Court in this very case appearing at page 13 of the judgment of the Supreme Court recorded on 15th instant.
The same is reproduced: "These arguments fail to take note of the fact that section 44 of the Azad Jammu and Kashmir Interim Constitution Act embraces and confers the jurisdiction on the High Court to issue writ petition, except the matters which are stated to be immune from the exercise of writ jurisdiction by the Constitution itself. Expression "subject to this Act" used in section 44 of the Interim Constitution Act, means that in order to take away the writ jurisdiction, the provisions must be in the Constitution itself and not in the subordinate legislation such as ouster is found in the Constitutions of different countries. For instance, in the Constitutions of India and Pakistan, as has already been pointed out in the earlier part of this judgment; identical provisions pertaining to the election matters are contained in Article 225 of the Pakistan Constitution of 1973 and Article 329 of the Indian Constitution. But there is no corresponding provision debarring the High Court of the Azad Jammu and Kashmir to exercise the writ jurisdiction in election matters. Besides, subsection (3) of section 44 specifically lays down that on order under subsection (2) of this section for issuance of writ petition shall not be made on application moved by or in relation to a person in the Defence Service in respect of his terms and conditions of service.
' As has already been stated that as there is no provision analogous to Article 225 of the Pakistan Constitution or Article 329 of Indian Constitution in the Azad Jammu and Kashmir Interim Constitution Act, the jurisdiction of the High Court to exercise writ jurisdiction in cases where the functionaries under the election laws act in flagrant disregard of the statutory provisions is not ousted. A reference may be made to the case reported as Chief Election Commissioner, Azad Jammu and Kashmir v. Abdul Majid (PLD 1986 SC (AJ&K) 120) wherein writ petition against the rejection of nomination paper was accepted; the appeal to the Supreme Court by the Chief Election Commissioner was dismissed with the observations that the judicial pronouncements made by the authorities in Pakistan and India are not relevant in the said case because there was no corresponding provision in the Interim Constitution Act. 1974 debarring the High Court from exercising writ jurisdiction in case of election disputes. Initially when the learned counsel for the applicant were confronted with the aforesaid authority of this Court, they submitted that they had not read the said authority, but on the subsequent day they maintained that despite the aforesaid verdict of this Court the correct position of law is that writ petition was not competent in case of election disputes."
40. In consequence of the analysis made above, we have reached the conclusion that Sardar Sikandar Hayat Khan, respondent, is disqualified to contest or be a member of the Legislative Assembly against the seat LA-34 Jammu and others-VI, falling in category (3) described in section 2 of the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970. The appearance of his name in the electoral roll of Satellite Town, Ward No, 4, Rawalpindi at serial number 156 is of no legal effect. Thus, the order of acceptance of his nomination by the Returning Officer Rawalpindi of April 11, 1990 and the order of dismissal of appeal preferred by Ghulam Sabir before the Chief Election Commissioner of April 19, 1990 are set aside as being without lawful authority. These orders are of no legal efffect in presence of the disqualification attached to the respondent (Sardar Sikandar Hayat Khan) for being a candidate or member in Constituency LA-34 Jammu and others-VI. Costs shall follow the event.
' In the end, we would like to record our thanks for Mr. S.M. Zaffar, the learned Senior Counsel, Agha Ashiq Hussain and Mr. Hanif Khan who represented the parties and M/s. Muhammad Siddique Farooqi and M. Nisar Mirza, Additional Advocate-General, who appeared amicus, curiae, for their valuable legal assistance.