1. SARDAR SAID MUHAMMAD KHAN, ACTG. C.J.---As the above entitled two appeals arise out of a single judgment of the High Court and identical law points are involved in these appeals, I propose to dispose of the same by the single order.
2. Brief facts giving rise to the present appeals are that two separate writ petitions were filed: One by Syed Ghulam Mujtaba Bokhari and other by Ch. Ghulam Sabir and Ch. Akhtar Hussain, respondents, whereby the order of acceptance of the nomination paper of the appellant to contest election to the Azad Jammu and Kashmir Legislative Assembly from the Constituency LA-34, Jammu and others-- 6 and order passed by the Chief Election Commissioner on appeal were challenged. The grievance of respondents was that Sardar Sikandar Hayat Khan, appellant herein, was the resident of village Krela-Manjhan, Tehsil Nakyal, District Kotli and was also enrolled in the electoral rolls of that area at serial No.387; the relevant constituency is described as LA-9 Kotli-2. Thus, according to the respondents, the appellant was not qualified to contest election from the Constituency LA-34, Jammu and others-- 6, as only a person satisfying the conditions envisaged in clause (3) of section 2 of the Azad Jammu and Kashmir Legislative Assembly Ordinance, 1970 (hereinafter shall be called as Ordinance VI of 1970), could contest election from the said constituency. Their case is that the aforesaid provision postulates that only refugees other than those mentioned in clause (2) of section 2 of the said Ordinance and persons who originally resided in the Azad Kashmir territory but are now residing in the area envisaged in clause (3) of section 2 of Ordinance VI of 1970, were competent to contest elections against a seat falling in the category of the said provision. It was further the case of the respondents that the entry in the electoral rolls of LA-34 Jammu and others 6 was manoeuvred by the appellant through his influence and was violative of the relevant rules because the appellant was not only entered as a voter in Constituency LA-9 Kotli-2 at serial No.387 but was also entered as a voter in the electoral rolls of two other electoral areas situated within the territorial limits of Azad Jammu and Kashmir State. According to the respondents, even if a person resides at more than one places, in view of the provisions contained in section 12 of the Azad Jammu and Kashmir Electoral Rolls Ordinance, 1970 (hereinafter shall he called the Ordinance I of 1970), he can be regarded resident of only one electoral area for the purpose of election.
3. The High Court accepted both the writ petitions and held that the order of Returning Officer whereby he accepted the nomination paper of the appellant and the order passed on appeal by the Chief Election Commissioner were violative of the relevant law on the subject. Thus, it was opined that the appellant was debarred from contesting the election from the constituency in question because he did not ordinarily reside within territorial limits of the area which comprises the constituency in question.
4. Before dealing with the points involved in the case, it would be expedient to reproduce the relevant provisions contained in Ordinance I of 1970 and Ordiance VI of 1970.
5. Sections 12 and 13 of Ordinance I of 1970 are as under:-- "12. Meaning of 'resident'.---(1) Save as hereinafter provided, a person shall be deemed to be 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 elegible 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 be 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 be 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 resident 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 roll for any electoral area more than once; or
(b) on the electoral rolls for more than one electoral area." Section 2 of Ordinance VI of 1970 is reproduced as under:-- "2. 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)
6. It has been contended on behalf of the appellant that in view of the provisions contained in section 24 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 (hereinafter shall be called as the Interim Constitution Act), the provisions contained in section 2 of the Ordinance VI of 1970 are nullity because the same arc violative of the aforesaid Constitutional provisions. According to the learned counsel for the appellant, subsection (1) of section 24 of the Interim Constitution Act envisages only three qualifications for contesting elections to the Azad Jammu and Kashmir Legislative Assembly, namely that:--
(a) he is a State subject;
(b) he is not less than 25 years of age; and
(c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan.
7. The learned counsel for the appellant submitted that any disqualification attached by or under a subordinate legislation which is found to be violative of the abovementioned three conditions cannot be regarded as a valid law and, thus, is of no legal consequence. It was contended on the aforesaid premises that as the distribution of the seats envisaged in clauses (2) and (3) of section 2 of the Ordinance VI of 1970 is derogatory to the aforesaid Constitutional provision, the appellant could not be debarred from contesting election from the Constituency LA-34 Jammu and others 6.
8. The learned counsel also argued that a person who is enrolled as a voter in any of the constituencies situated in the territory of Pakistan or the State of Azad Jammu and Kashmir is legally competent to contest election to the Azad Jammu and Kashmir Legislative Assembly from any constituency irrespective of the fact as to whether his name is entered in the electoral roll of the relevant constituency. It was submitted that reservation of the seats or distribution of the same would not create a bar to contest for any such seat because the provisions contained in section 2 of Ordinance VI of 1970 are violative of section 24 of the Interim Constitution Act, 1974.
9. In reply it was contended that subsection (1) of section 24 of the Interim Constitution Act cannot be read in isolation; the same is to be read alongwith disqualifications postulated under subsection
(2) of section 24 and any other disqualification imposed by virtue of clause (f) of subsection (2) of section 24 which stipulates that a person can be disqualified from contesting election to Legislative Assembly by this Act or by or under any other law. It was vehemently argued that the expression "by this Act" and expression "by or under any other law" stipulate that a disqualification can be imposed for contesting election to the Legislative Assembly either in explicit terms or by necessary implication. It was contended that the provisions contained in section 2 of the Ordinance VI of 1970 cannot be regarded to be violative of the provisions contained in section 24 of the Interim Constitution Act, as these provisions are in consonance with the letter and spirit of the provisions contained in section 24 of the Interim Constitution Act and are protected under clause (f) of subsection (2) of section 24 of the Interim Constitution Act. A disqualification can he imposed for contesting election to the Legislative Assembly as has been done under Ordinance VI of 1970. It was further maintained that although the provisions contained in section 2 of the Ordinance VI of 1970 do not speak of disqualification in explicit terms but those are apparent and can be easily spelled out from the aforesaid provisions which place an embargo on contesting election in terms that the election to six seats contained in clause (2) and six seats envisaged in clause (3) of section 2 of Ordinance VI of 1970 could be contested only by a person who satisfies the relevant conditions, i.e. If he is a refugee from an area mentioned in the aforesaid clauses and is residing in any of the provinces of Pakistan or is a migrant from Azad Kashmir territory and is residing in any of the said provinces. The case of the respondents is that as the appellant, Sardar Sikandar Hayat Khan, was neither a refugee from ,an area envisaged under the aforesaid provisions or a migrant from the territory of the Azad Jammu and Kashmir State, nor he ordinarily resides in the relevant area, he was not legally competent to contest the election from the constituency in question. It was contended that a person must be resident within the meaning of section 12 of Ordinance I of 1970 (as amended uptodate). It was further argued that in view of the provisions contained in section 12 of Ordinance I of 1970, a person may be resident of more than one places but for the purpose of election he will be deemed to be the resident of only one place and could be entered as a voter in the electoral roll of only one of such electoral areas. The artificial meaning ascribed to the word 'resident' under section 12 of Ordinance I of 1970 does not leave any room for the enrolment of a person as a voter in more than one electoral areas or more than once in the same electoral area.
10. The first question which needs to be resolved is as to whether the provisions contained in section 2 of Ordinance VI of 1970 are violative of the Constitutional provisions contained in section 24 of the Interim Constitution Act; and whether the conditions envisaged in clauses (2) and (3) of section 2 of the aforesaid Ordinance would debar a person from contesting the elections against a reserved seat envisaged under the aforesaid provisions. A plain reading of section 24 of the Interim Constitution Act clearly reveals that general qualifications for contesting election to the Azad Jammu and Kashmir Legislative Assembly envisaged in subsection (1) of section 24 of the Interim.
11. Constitution Act are to be read jointly with disqualifications enumerated under subsection (2) of section 24 of the Interim Constitution Act. The general qualifications envisaged under subsection
(1) of section 24 do not bestow an absolute right upon a person to contest election irrespective of the disqualifications which are laid down under subsection (2) of section 24. Any of the disqualifications envisaged under the aforesaid provisions or by or under law envisaged under clause (1) of section 24 of the Interim Constitution Act, would disentitle a person to contest elections to the Legislative Assembly, despite the fact that he possesses all the three qualifications laid down under subsection (1) of section 24 of the Interim Constitution Act. Any disqualification imposed by a subordinate legislation as envisaged under clause (f) of subsection (2) of section 24 of the Interim Constitution Act would equally debar a person from contesting election and the disqualifications so imposed would be as good as any disqualification enumerated in subsection
(2) of section 24 of the Interim Constitution Act, because a disqualification imposed by subordinate legislation would have sanction of Constitutional provisions contained in clause (f) of subsection
(2) of section 24 which envisage that a disqualification can be imposed by any other law.
12. The next question which needs to be resolved is as to whether the condition that a person who intends to contest election against any of the reserved seats envisaged in clauses (2) and (3) of section 2 of Ordinance VI of 1970 would be a disqualification within the meanings of subsection (2) of section 24 of the Interim Constitution Act. The answer to the question is in affirmative. The basic rule of interpretation is that while interpreting a statutory provision, the intention of the Legislature is to be ascertained. It has not been controverted that all election laws are statutes in pari materia and the same are to be read together in aid of each other. A reference may be made to cases reported as Malik Muhammad Din & Sons v. Trustees of the Port of Karachi PLD 1966 Kar. 518, J.K.
13. Steel Ltd. v. Union of India AIR 1970 SC 1173 and Muhammad Baqar v. S. Muhammad Casim AIR 1932 Oudh 10 which support the aforesaid proposition.
14. The history of the legislation on the subject in question reveals that the reservation of seats for refugees and migrants from Azad Kashmir was made with the intention to give representation to all the sections of the State subjects, i.e., the refugees from Kashmir Valley, refugees from the Jammu and other parts of the State including the migr. s from the Azad Jammu and Kashmir who, at the relevant time, were residing in any of the provinces of Pakistan. The learned counsel for the appellant vehemently argued that the provisions contained in section 2 of Ordinance VI of 1970 are merely regulatory in nature and those cannot be interpreted to impose any disqualification.
15. Assuming for the sake of arguments that the word 'disqualification' is not a proper term to signify the conditions envisaged under section 2 of Ordinance VI of 1970, the fact remains that the election to the reserved seats cannot be contested until and unless the conditions precedent laid down in the Ordinance are fulfilled, i.e., that the person falls within one of the categories of State subjects envisaged therein; and he is resident of any of four provinces of Pakistan. Whether we term the embargo as `disqualifications' or 'conditions', it would not make any difference so far as the consequences of the aforesaid provisions are concerned.
16. The next point which falls for consideration is as to whether the appellant falls within the ambit of provisions contained in clause (3) of section 2 of Ordinance VI of 1970. It is not denied that the appellant had been previously contesting the elections to Legislative Assembly from Constituency LA-9 Kotli-2 and has also contested present election from there. He is entered as a voter in Azad Kashmir in more than one constituencies. It is also not controverted that a person cannot be entered as a voter twice in the same electoral area or in different electoral areas, in view of the provisions contained in section 13 of Ordinance I of 1970; it is also not disputed that for the purpose of election laws a person can be regarded resident of only one of the electoral areas or electoral units even if he owns immovable property in more than one such places in which case he has to make a choice with regard to his place of residence as envisaged in the provisions contained in section 12 of Ordinance I of 1970. The learned counsel for the appellant have contended that the violation of any of provisions of sections 12 and 13 of Ordinance I of 1970, such as failing to make choice of residence or entry of the appellant as a voter in more than one electoral areas would not debar him from contesting election from the Constituency LA-34 Jammu and others 6, if he shows that he ordinarily resides in the said constituency. It was not controverted that clause (b) of subsection (1) of section 12 of Ordinance I of 1970 would not be attracted in case of the appellant because the aforesaid provisions visualise that a person seeking to be registered as a voter must own or be in possession of a house or other immovable property in an electoral area in the territories administered by the Government. The word `Government' has been defined in the relevant Ordinance itself which means the Government of Azad Jammu and Kashmir State. Thus, even if the appellant owns immovable property in the constituency in question, it would not entitle him to contest election from the said constituency because that is not under the administrative control of the Government of Azad Jammu and Kashmir State. It was conceded at the bar that the case of the appellant is to be adjudged in view of the provisions contained in clause (a) of subsection (1) of section 12 which says that for being qualified to be entered as a voter, the person must be ordinarily residing in the relevant area. The perusal of the judgment of the High Court as well as the arguments advanced in this Court tend to show that the case of the appellant is that he would be deemed to be resident of the constituency in question because he has been residing in the house of one Hamid Akhtar who happens to be his friend or is merely acquainted with him. The said house is admittedly situated in Rawalpindi which forms a part of the constituency in question for election purposes. The findings of the High Court on the point are that a person cannot become a resident of a place within the meanings of clause (a) of subsection (1) of section 12 of Ordinance I of 1970 merely by staying with a person for certain pdriod as relative or friend, especially so when the person concerned is resident of another place, as in case of the appellant who is resident of village Krela-Manjhan from where he had been contesting elections previously and has also contested the present election.
17. It has also been half-heartedly argued that the appellant's father owned some immovable property in the Indian held area for which he had submitted a claim under the relevant law and was paid compensation. In the instant case, the question whether the appellant is a refugee or not; or whether he owns immovable property in the constituency in question is immaterial in view of the provisions contained in section 12 of Ordinance I of 1970. The moot point in the case which needs to be resolved is as to whether the appellant can be deemed to be a resident of the constituency in question because he has been residing in the house mentioned above. It may be observed here that even if it is assumed that the appellant is a refugee, he would have to show that he is a resident of the electoral area in question within the meanings of section 12 of Ordinance I of 1970.
18. I have given my deep thought to the argument advanced at the bar and I am not impressed by the argument that the appellant, who is a permanent resident of village Krela-Manjhan and has been residing for the last five years at Muzaffarabad as Prime Minister of the State of Azad Jammu and Kashmir, can be regarded a resident of the constituency in question merely because he has been lodging with Hamid Akhtar who is his friend or is merely an acquaintance. The expression "ordinarily resides" signifies more than a casual dwelling at a certain place. It may not be a permanent dwelling either but it is definitely not a temporary dwelling as in the case of the appellant. The expression 'ordinarily resides' implies that a person lives at a place with his wife or children, if any, and resides there for reasonable period and follows there the ordinary pursuits of his life occasioned by the nature of his profession. One may reside at a particular place say for a year or more in connection with business or due to some other engagements but he cannot be regarded to be an ordinary resident of that place within the meanings of section 12 of Ordinance I of 1970. It has been strenuously argued on behalf of the appellant that as the appellant has been entered in the electoral rolls of the constituency LA-34 Jammu and others 6, it would be presumed that he is resident of the said constituency. It has been further maintained that presumption arising from the aforesaid entry has not been rebutted in the instant case because there is no evidence to the contrary. It was argued that onus of proof that appellant was not resident of constituency in question was on the respondents. The question of onus of proof or rebutting a fact is to be seen in the context of the pleadings of the parties. The respondents have alleged that the appellant cannot be regarded as resident of the constituency in question and have stated the reasons in support of their averments in their writ petitions. The appellant had to plead in his written statement as to how he would be deemed as ordinary resident of the constituency in question. In other words he had to spell out all the circumstances on which he relies to substantiate his claim that he is resident of the constituency in question. Mere assertion by the appellant in his pleadings that he is a resident of the constituency because he is entered as such in the electoral rolls of the constituency is not sufficient to establish his case. If the respondents show on the strength of the admitted facts that the appellant cannot be regarded to be a resident of the constituency in question as envisaged in the relevant law, the onus would shift to the appellant and he cannot be deemed to have discharged the same merely on the basis of presumption which arises from the entry in the electoral rolls. The fact that the appellant could not have been entered as a voter in more than one electoral areas or election units is sufficient to rebut the initial presumption in favour of the appellant regarding his ordinary place of residence, because even if he was resident of more than one places, he could not be entered as a voter in the electoral rolls in view of the provisions contained in section 12 read with section 13 of Ordinance I of 1970. It has been contended that under section 8(2) of Ordinance I of 1970, the electoral rolls of the voters residing in Pakistan are not to be prepared with reference to any 'electoral area' and, thus, section 13 which prohibits the entry of a voter in more than one electoral areas would not be attracted in the case of the appellant. It is correct that section 8(2) contained in Ordinance I of 1970 envisages that electoral rolls of voters residing in Pakistan would not be prepared with reference to any 'electoral area', but all the same sections 10 and 12 of Ordinance I of 1970 envisage the preparation of electoral rolls of the 'electoral areas'. If the argument is accepted that the electoral rolls of the residents in Pakistan were not to be prepared on the basis ,of 'electoral area', as such the use of the aforesaid expression in sections 10 and 12 of the Ordinance would be only applicable in case of area comprising the territory of the State of Azad Jammu and Kashmir. Then the question would arise under which of the provisions of Ordinance I of 1970, the electoral rolls of the residents of the provinces of Pakistan would be prepared. There is no other provision in Ordinance in that regard. Thus, irrespective of the provisions contained in subsection (2) of section 8, in view of the provisions contained in sections 10 and 12 of the Ordinance I of 1970, the electoral rolls of the residents of the Provinces of Pakistan would be deemed to be single 'electoral area' for the purposes of electoral rolls. If the expression 'electoral area' is to be avoided then any other expression such as electoral rolls of the residents of respective 'electoral units' can be used. However, that would not make any difference so far as the application of section 13 of Ordinance I of 1970 is concerned. The prohibition contained in the aforesaid provision would thus be applicable to the appellant.
19. Next, it has been contended that the entry in the electoral rolls is not open to challenge either by filing an election petition or by invoking writ jurisdiction. However, it has been conceded that if an entry in the electoral rolls pertains to the disqualification of a candidate to contest election then such an entry is open to challenge as was held in cases reported as Syed Aminuddin Chowdhury v, The Election Tribunal, Chittagong PLD 1968 SC 235 and Serajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5. However, it was argued that such an entry cannot be challenged if it merely pertains to the right of casting vote. As has already been pointed out that the question of entry in the electoral rolls in the instant case does not pertain merely to the right of casting vote, but is directly related to the question as to whether the appellant was legally eligible to contest election to the seat of the Legislative Assembly from the constituency in question in view of provisions contained in Ordinance I of 1970 and Ordinance VI of 1970. It may be stated that unlike the Constitutions of India and Pakistan there is no provision in the Interim Constitution Act ousting the writ jurisdiction of the High Court in election disputes. Article 225 of the Constitution of Pakistan and Article 329 of Indian Constitution curtail the writ jurisdiction of superior Courts in case of election disputes. The controversy has been finally resolved in Abdul Majeed's case reported as Chief Election Commissioner v. Abdul Majid PLD 1986 SC (AJ&K) 120, wherein the question has been dealt with in detail. Thus, the cases decided by the superior Courts of India and Pakistan are not helpful in dealing with the scope of writ jurisdiction in case of election disputes in Azad Kashmir.
20. Raja Muhammad Akram, one of the learned counsel for the appellant, has cited some authorities in support of his contention that an entry in the electoral rolls is not open to challenge either by filing an election petition or by invoking writ jurisdiction.
21. In case reported as Inderjit Barua v. Election Commission of India (1985) 1 SCC 21, it was held that in view of the provisions contained in Article 329(b) of the Indian Constitution an entry in the electoral rolls is not open to challenge by filing a writ petition. As has already been pointed out that there is no corresponding provision in the Interim Constitution Act, 1974 debarring the High Court from exercising writ jurisdiction in case of election disputes. Thus, the authority has no relevancy to the case in hand.
22. Similarly, the case reported as Kabul Singh v. Kundan Singh (1969) 2 SCC 452, is also not applicable to the instant case because in that case the election was challenged on the ground that the vote of one Hari Singh was void as his name was included in the electoral rolls two days before the day of polling in violation of the relevant law. Under section 23(3) of the Representation of the People Act, 1951, the name of a voter could not be entered in an electoral rolls after prescribed date. It was held that as there was no provision in any law disqualifying the concerned voter from exercising his right of vote, the vote cannot be declared as void. It was also observed that in view of section 30 of 1950 Act, a Civil Court had no jurisdiction to entertain or adjudicate upon the question whether any person is or is not entitled to register himself in the electoral rolls in the constituency. It is evident that in that case the question pertained to right of casting vote and not right to contest election as in the instant case. Moreover, the dispute in the aforesaid case was contested by way of an election petition and by invoking the writ jurisdiction as has been done in the present case. In the instant case the provisions regarding ouster of the jurisdiction would not be applicable because the High Court gave the impugned judgment in exercise of writ jurisdiction and not acting as a Court of civil jurisdiction. The High Court exercises writ jurisdiction under section 44 of the Interim Constitution Act and, thus, the same cannot be abridged or ousted by a subordinate legislation. It can be done only through a Constitutional provision, as has been done in Pakistan and India.
23. Similarly the cases reported as Pampakavi Rayappa Belagali v. B.D. Jatti AIR 1971 SC 1348 and Hari Prasad Mulshankar Trivendi v. V.B. Raju AIR 1973 SC 2602 are also distinguishable because in those cases the disputes were the subject-matters of the election petitions and not in writ proceedings as in the instant case. It was observed in the aforesaid cases that as the election disputes pertained to the entry in the electoral rolls and not the qualification of the candidates to contest elections, the entry was not open to objection by filing an election petition. As has been held in the earlier part of the judgment that in the instant case in view of the provisions contained in section 2 of Ordinance VI of 1970, the question of right to enroll in an area of 'reserved seats' is related to the question of qualification of a person to contest election against the said seats. Thus, it cannot be said that the question of entry in the electoral rolls in the instant case pertains only to the correctness of the entry in the electoral rolls or for that matter right to vote, rather the question is directly related to the right of the appellant to contest election against any of the 'reserved seats'.
24. Until and unless a person is a resident of any of the four Provinces of Pakistan, he cannot be entered as a voter and, thus, he is debarred from contesting election against any of the reserved seats. Therefore, the question of registration as a voter in the area of 'reserved seats' is not only a question of right to vote rather it has a direct bearing on the right of a person to contest election against a 'reserved seat'. Whether we term it as disqualification or we call it condition precedent to contest election from an area of 'reserved seats' that will hardly make any difference.
25. The learned counsel for the appellant has also cited a case reported as Dr. Babar Hameed Chohan v. Muhammad Afzal Munir 1984 SCM R 537 wherein a person was entered twice in the electoral rolls and, thus, an objection was raised that he could not be named as a candidate to contest election under Cantonments (Election and Election Petitions) Rules, 1979. It was opined that double enrolment is not a disqualification under relevant law debarring the candidate from contesting election. It may be observed here that in that case the person concerned was not contesting elections from two constituencies wherein he was entered as a voter; he was contesting election only against one of the seats, although he was enrolled in two constituencies. Besides, the question of right to contest election despite double enrolment was considered in light of the law applicable which did not contain the prohibitions as are contained in section 2 of Ordinance VI of 1970. It has been already pointed out that in the instant case the entry in the electoral rolls is directly related to the qualification of a candidate to contest election against a "reserved seat" and, thus, it cannot be said that the question of entry in the electoral rolls is not related to the right of a candidate to contest election against any of the reserved seats.
26. In the light of what has been stated above, I dismiss the appeals. However, in the circumstances of the case, no order is made as to the costs.
27. It may be stated that the operation of the judgment of the High Court was stayed by this Court till the disposal of the present appeals. Consequently the election process continued, the appellant contested the election and was unofficially declared as returned from the constituency in question.
28. Thus, in the changed circumstances it has become imperative to indicate the future course of actions in the matter. Therefore, all actions taken, election process initiated and completed, after the date when the appeals of the respondents against the order of acceptance of nomination paper of the appellant were dismissed, are hereby declared as null and void and of no legal consequence. The Election Commissioner and the Returning Officer, repondents, herein, are directed to commence the election process regarding Constituency LA-34 Jammu and others 6 afresh from the date of the dismissal of the appeals by the Chief Election Commissioner and complete the election process according to law. I desire that polling is concluded and results of the election pertaining to the constituency in question are declared before the elections of the Speaker and the Prime Minister under the relevant provisions of the Constitution so that the candidate returned from the aforesaid constituency may be able to exercise his right of vote in the elections of the Speaker and the Prime Minister.
29. BASHARAT AHMAD SHAIKH, J.---In my view the dispute in the present causes centres around the following two questions:--
(a) which of the State subjects in Pakistan are entitled to elect members of the Legislative Assembly from Pakistan; and
(b) who can be elected as a member of the Legislative Assembly from Pakistan.
30. These questions can only be resolved in light of the relevant law, but while doing so the role, character and structure of Azad Government of the State of Jammu and Kashmir may also be kept in view, so far as the law permits, to reach proper conclusions.
31. Azad Jammu and Kashmir is a political novelty. A territory comprising of some 4000 odd square miles is under the control of Azad Government of the State of Jammu and Kashmir but role of this Government is not confined to administering this territory. The role of Azad Government of the State of Jammu and Kashmir is more ideological in character than administrative. It is a novel feature that in the elections for the Azad Jammu and Kashmir Legislative Assembly polling stations are not only established in the territory of Azad Jammu and Kashmir but are also set up from the shores of Karachi to heights of Swat. In the year 1970 when the President of Azad Jammu and Kashmir was elected on the basis of adult franchise under the Azad Jammu and Kashmir Government Act, 1970 polling stations were also set up in erstwhile East Pakistan, which is now Bangladesh. These features, which possibly are unparalleled, flow from the concept that it is a de jure Government of the whole of the Jammu and Kashmir State although it is in de facto control of only a small part of it. It is in order to project the Azad Government as a de jure and revolutionary Government of the whole State that refugees from occupied Kashmir residing in Pakistan have all along been associated with Azad Government initially, when there was no elected body, as ministers and then as members of the State Council. In 1970 when the first full-fledged Legislative Assembly was set up a basic change was noticed in respect of the representation to State subjects in Pakistan. The change was that for the first time, apart from refugees from Jammu, State subjects residing in Pakistan were also given the right of franchise against the seats reserved for Jammu.
32. Agha Ashiq Hussain, Advocate in his arguments before us submitted that this change was brought about to give representation to persons who had been displaced on account of construction of Mangla Dam and had been permanently settled in different parts of Pakistan. That may be the main reason but we have to interpret the law as worded and give effect to it.
33. The first Legislative Assembly was set up in 1970 and a law for the purpose of constituting that Assembly was enacted on 18th of July, 1970 when the Azad Jammu and Kashmir Act, 1968 was still in force. The law known as the Azad Jammu and Kashmir Legislative Assembly Ordinance 1970 still continues to be in force except that the number of members of the Assembly has been increased.
34. It has only two sections. In section 1 the title of the law is mentioned and section 2 relates to the composition of the Legislative Assembly.
35. In the Azad Jammu and Kashmir Government Act of 1970 provision was made for setting up of the Legislative Assembly in the following words:-- "14. Legislative Assembly.---(1) The legislature of Azad Jammu and Kashmir shall consist of the President and a Legislative Assembly consisting of twenty-five members of whom--
(a) twenty-four shall be elected directly on the basis of adult franchise; and
(b) one, who shall be woman, shall be elected by the directly elected members.
(2) The manner of election of the members of Assembly, their qualifications and disqualifications for being such members, the number of members required to constitute the quorum and the manner of filling casual vacancies shall be such as may be prescribed.
36. As is clear from the phraseology of section 14, the Constitution itself fixed only the number of seats and did not make provision for other details. This detail regarding the manner of election of the members was left to be prescribed.
37. Azad Jammu and Kashmir Government Act, 1970 was replaced by the Azad Jammu and Kashmir Interim Constitution Act, 1974 which continues to be in force. The provisions regarding the Legislative Assembly was on the same lines as those of section 14 of the Government Act of 1970.
38. Section 22 reads as follows:-- "22. Legislative Assembly.---(1) 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; and
(b) ..
(c) ..
(2) The manner of election of the members of the Assembly and the manner of filling casual vacancies shall be such as may be prescribed.
39. It would be again noticed that this Constitutional provision also did nothing, in respect of directly elected members, more than fixing their number again in the like manner as in the Government Act, 1970. The manner of election of members was left to be prescribed by law. The Constitution being silent as to the details regarding the composition of the Legislative Assembly, the Azad Jammu and Kashmir Legislative Assembly Ordinance is the law, which provides for these matters.
40. Before analysing its provisions it will be useful to reproduce section 2 of the Ordinance, which runs as under:-- "2. 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); It is obvious from the recital contained in this Ordinance that it provides the "manner" in which the Legislative Assembly was to be constituted. It is quite obvious that it has always been considered in practice that in the Constitution Act of 1974 and in the earlier Constitution of 1970 when it was laid down that the manner of election shall be such as may be prescribed, it was in pursuance of this provision that the Legislative Assembly Ordinance drew its authority. I would, therefore, hold that the Legislative Assembly Ordinance (Ordinance No.I of 1970) is a law as is visualised by subsection
(2) of section 22 of the Azad Jammu and Kashmir Interim Constitution Act. Consequently, it has the same status as that of a Constitutional provision. The only distinction is that this law can be altered or repealed like any other sub-constitutional law but as long as it is in existence this law, or any other law which replaces it, would be a law which, would have the force of Constitution. What follows from it is that the categories created by this Ordinance and other provisions thereof shall have the same force as the Constitution itself.
41. Before parting with this aspect of the matter I wish to point out that although the division of the seats and the creation of three categories is not provided for by the Constitution itself but the rights of the State subjects residing in Pakistan are guaranteed by the Constitution itself. My reference is to clause (c) of subsection (1) of section 24. Subsection (1) of section 24 of the Interim Constitution Act lays down:- "24. Ou'alification of members of the Assembly.---(1) A person shall be qualified to be elected as, and to be, a member of the Assembly if--
(a) he is a State subject;
(b) he is not less than twenty-five years of age; an
(c) his name appears on the electoral roll of any constituency in Azad Jammu and Kashmir or Pakistan."
42. The qualification mentioned in clause (c) of the provision extracted above shows that any State subject whose name appears in the electoral roll in Pakistan has the right to be a candidate or to be a member of the Legislative Assembly. Since it is constitutional provision the right of State subjects in Pakistan to take part in the Assembly elections as a candidate cannot be denied.
43. It is provided in subsection (2) of section 8 of the Electoral Rolls Ordinance that separate electoral rolls without reference to any electoral area shall be prepared for the State subjects residing in Pakistan. The provision for Azad Jammu and Kashmir is that there shall be electoral rolls with relation to the electoral areas. Section 12, which lays down the meaning of residence, opens its subsection (1) with these words:-- "12.Meaning of 'resident'.---(1) Save as hereinafter provided, a person shall be deemed to be 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 the electoral area in the territories administered by the Government; Since "Government" is defined in the Electoral Rolls Ordinance as the Azad Government of the State of Jammu and Kashmir it is admitted by all the learned counsel appearing for the parties that provision relating to right of a person to be enrolled as an elector in an electoral area on the basis of ownership of property is not applicable to the State subjects residing in Pakistan. A closer look at the provision would also show that the definition of the word 'resident', as has been reproduced above, is also confined to the places which form part of electoral areas, as is clear from phraseology of the opening words of subsection (1). It is clear that this definition of the word 'resident' is only relatable to an electoral area. Since in Pakistan there are no electoral areas this definition has no applicability to the State subjects residing in Pakistan. So far as the State subjects residing in Pakistan are concerned, in absence of the definition, the ordinary connotation of the word "resident" would have to be given effect to. Section 12 of the Electoral Rolls Ordinance entirely relates to the question as to who are the persons who shall be deemed to the residing in an electoral area. Thus, the whole section is inapplicable to the State subjects residing in Pakistan.
44. Now, the question is that when separate electoral rolls are prepared without reference to any electoral area for the State subjects in Pakistan who are the persons who would be enrolled as voters. The answer is provided by subsection (2) of section 8 itself which lays down that electoral rolls shall be prepared for State subjects residing in Pakistan. The words used in this subsection are "residing in Pakistan" and the definition contained in subsection (2) the word 'residing' not being applicable the result that follows is that the State subjects residing in Pakistan, construed in the ordinary meaning of the word, would be registered as voters.
45. I note that in the Legislative Assembly Ordinance the same words are used in relation to all the three categories of State subjects in which they are divided. Clause (1) refers to State subjects residing in Azad Jammu and Kashmir. Here the definition given in section 12 of the Electoral Rolls Ordinance would be applicable. Then in clauses (2) and (3) the words used are 'as are now residing in any of the Provinces of Pakistan'. In both the Azad Jammu and Kashmir Legislative Assembly Ordinance and the Electoral Rolls Ordinance the word used is 'resident' and the same meaning would be applicable in both enactments.
46. This now takes us to the question what is meant by 'residence' or 'reside'. In order to find out what the connotation of word 'residence' or 'reside' is, I would do no better than to quote from the Corpus Juris Scundum, Vol. 29, from page 69:-- "The term 'residence' or 'reside', as used in Constitutional and statutory provisions relating to the qualifications of electors, ordinarily is synonymous with home or domicile, denoting a permanent home or dwelling place, to which the party when absent intends to return, a place where a man establishes his abode, makes the seat of his property, and exercises his civil and political rights."
47. Then again it has been held:-- "That a person cannot have his voting residence at one place while actually and habitually dwelling at another place and that an actual or real, and not an imaginary, abode occupied as a home or dwelling is essential to constitute a voting residence. The word residence does not mean domicile but abode at which a man actually lives and works. This considers the fact of residence rather the intention of the person."
48. I may again quote from page 76 as follows:-- "While a residence for the purpose of voting at an election is the settled place of abode, it need not wholly be permanent, although a certain degree of permanency is required. A permanent residence, to entitle one to vote, is where the intended voter means to abide and become a citizen until duty, business, moral obligation, contract, resolution, or convenience may compel him to elect a new home as his place of domicile."
49. The first condition or qualification for being a voter in Pakistan, as laid down by Electoral Rolls Ordinance as well as the Legislative Assembly Ordinance, is that the State subject who wishes to be enrolled as a voter must be a resident. There is another condition or qualification which is imposed by the Legislative Assembly Ordinance and it is to be found in these words: 'State subjects' from other parts of the Jammu and Kashmir and State subjects originally residing in the territories under the administration of the Azad Government of the State of Jammu and Kashmir as are now residing in Pakistan". This phraseology shows that it is not enough to become a voter that a State subject should be residing in Pakistan but it is also a condition precedent that such State subject should have either come from other parts of the State or should have originally resided in Azad Jammu and Kashmir. It means that only those persons can be registered as voters in Pakistan and can thereby stand in the elections against the seats reserved for Jammu and others who were originally residing in the State and are now residing in Pakistan.
50. Another consequence which follows from the above is that it is the clear intent of the phraseology reproduced above that a State subject before being enrolled as voter in Pakistan has to show that he has relinquished his residence in Azad Kashmir and is residing in Pakistan. This result directly flows from the words used by the law-maker.
51. In light of this analysis it now becomes easy to find out whether Sardar Sikandar Hayat Khan falls in this category or not, In order to fall under the relevant category what has to be seen is whether the appellant, Sardar Sikandar Hayat Khan, originally resided in the territories under the administration of the Azad Government of the State of Jammu and Kashmir and is now residing in Pakistan. It is obvious from the phraseology that both cannot go together because the phraseology of law clearly lays down that a person to fall under this category is to leave, his residence in Azad Jammu and Kashmir and take it up in Pakistan. The stark reality is that Sardar Sikandar Hayat Khan is a sitting member of the Legislative Assembly elected from Azad Jammu and Kashmir and also filed nomination paper as a candidate for the same seat. The mere fact that he has filed nomination papers from Kotli as well as from Rawalpindi shows that he still claims to be residing in Kotli district and also claims to be residing in Pakistan. This is beyond the contemplation of law. A State subject who has residence in Azad Jammu and Kashmir does not fulfil the conditions imposed under clause (3) of section 2 of the Legislative Assembly Ordinance.
52. In this view of the matter the argument of the learned counsel appearing for the appellant that a question of fact was involved in the case which needed detailed examination and that the evidence on the record does not warrant the conclusion drawn by the High Court falls to the ground. I would, therefore, hold that Sardar Sikandar Hayat Khan could not validly be a candidate from this Constituency and the Returning Officer should have rejected his nomination papers in exercise of authority vested in him under subsection (3) of section 13 of the Legislative Assembly (Elections) Ordinance. The subsection runs as under:--
(3) The Returning Officer may, either of his own motion or upon any objection, conduct such summary enquiry as he may think fit and reject a nomination paper if he is satisfied that--
(a) the candidate is not qualified to be elected as, a member from the constituency for election from which he has been nominated;
(c) As a consequence the acceptance of nomination papers and subsequent rejection of the appeal filed with the Chief Election Commissioner against the acceptance of the aforesaid nomination are declared as without jurisdiction and of no legal effect.
53. Before parting with the case I have to attend to the basic argument advanced on behalf of the learned counsel for the appellant that finality is attached to the electoral rolls and once the name of the appellant was entered in the electoral roll in Pakistan the Returning Officer did not have the authority to go into its entries. The argument is that the election authorities were bound by the entries in the electoral roll and as a consequence they were bound to accept the appellant's nomination papers. The learned counsel for the appellant equally applied this rule to the High Court submitting that there was complete bar of jurisdiction in this respect and even the High Court could not examine the validity of the electoral rolls. Their reliance was on section 17 of the Electoral Rolls Ordinance, 1970, which runs as follows:- 17.Bar of jurisdiction.---No Court shall question the validity of the electoral rolls prepared under this Ordinance or the legality or propriety of any proceedings or action taken thereunder by or under the authority of the Commissioner or the Registration Officer."
54. The learned counsel cannot legally be allowed to raise this point because this point was rejected by this Court in the previous round of litigation in the present case in its order passed on 15-5-1990 and I may quote:-- "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 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 SC 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."
55. I may also add that it was also held in the order referred to above that sub-Constitutional provisions, like section 17 of the Electoral Rolls Ordinance reproduced above, cannot take away the powers conferred on the High Court and this Court by section 44 of the Azad Jammu and Kashmir Interim Constitution Act. Let there be no doubt on this point. If a person who does not fulfil the conditions laid down by the Azad Jammu and Kashmir Legislative Assembly Ordinance as well as Electoral Rolls Ordinance for enrolment as a voter in Pakistan and still gets himself illegally enrolled the High Court has undoubted power to order deletion of such a name in the supervisory jurisdiction conferred on it by the Constitution. However, it would be always a question of fact and would be determined in light of the facts of each case.
56. In the result I would dismiss the appeals. The appellant has since been elected member of the Legislative Assembly under a stay order issued by this Court. His election would consequently become void and is declared so. As the consequence of acceptance of the writ petitions the parties would go back to the position as it existed on the day the Chief Election Commissioner passed the order impugned in the writ petitions with the modification that the nomination papers of the appellant shall be deemed to have been rejected. All subsequent steps would be accordingly treated as not having been legally performed and would have to be taken afresh by the concerned authorities as well as the candidates. Polling would have to be held again to elect the member of the Legislative Assembly for LA-34, Jammu and others 6. However,= the Chief Election Commissioner should ensure that the member may be elected well in time before the election of the Speaker of the Assembly and the Prime Minister, if not before the election of the reserved seats.
57. ORDER OF THE COURT As a result of the foregoing conclusions, both the above entitled appeals stand dismissed with no order as to the costs.
58. It is declared that all actions commencing from the date of the order of the Chief Election Commissioner and completed thereafter, are null and void and of no legal effect. The Chief Election Commissioner and the Returning Officer, respondents, herein, are directed to commence the election process regarding the Constituency LA-34 Jammu and others 6 afresh from the date of the dismissal of the appeals of the respondents by the Chief Election Commissioner and complete the same according to law. We desire that the process of the election is completed before the elections of the Speaker and the Prime Minister so that the candidate returned from the aforesaid constituency may be able to exercise his right of vote in the said elections. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.