Haji Baroz Khan son of Niamat Khan resident of Musa Khel Mohmand Agency was elected Member of the National Assembly from NA-2-7 Tribal Area as a result of election held on 6th of October, 1993. The sedt pertained to Mohmand Agency of Federally Administered Tribal Areas. About 29 candidates had filed nominations which included Haji Qadar Gul son of Kajeer resident of Babazai Mohmand Agency.
2. While holding scrutiny on 30-8-1993 the Returning Officer who happened to be Political Agent as well, rejected the nomination papers of Haji Qadar Gul on the ground that the "Lungi" of Mr. Qadar Gul had been cancelled by the Home Secretary N.-W.F.P., Peshawar vide Me Osage No.20- -22/SOg'(HD)/93, dated 22-8-1993, that the reputation of Haji Oadar Gul was that he had amassed wealth from drug business and that his son in the past was hauled up in the drug trafficking and, thus, he stood disqualified under subsection (g) of section 99(i) of the Representation of People Act, 1976 (Exh.P.W.1/3).
2. Haji Qadar Gul went in appeal under section 14(5). Of the Representation of the People Act before Appellate Election Tribunal which as Exh.P.W.I/X-1 was dismissed on 8th September, 1993. He further filed a Writ Petition No-715 of 1993 under Article 199 of the Constitution which was rejected on 30th September, 1993 as (Exh.P.W.I/X-21. He has filed the instant petition challenging the rejection of his nomination which stands deferred to this Tribunal by the Chief Election Commissioner within the meaning of section 56(2) of the Representation of the People Act, 1976.
3.Mr. Saeed Baig learned counsel for the petitioner with reference to para.7 of the petition challenged the impugned order of rejection of his nomination on the ground that the Returning Officer had no authority to remove the name of the petitioner from the Electoral Roll on the date of scrutiny and, thus, the cancellation of "Lungi" was void because it amounted to the removal of his name from the Electoral Roll. After hearing the arguments of the learned counsel on either side, I am of the view that a Returning Officer, on the date of A scrutiny, cannot pass an order which, in any way, amounts to the alteration in or amendment of the Electoral Roll as such. The declaration of the Collector in the impugned order that due to cancellation of "Lungi", Haji Qadar Gul had ceased to be a voter, was, therefore, illegal.
4. Anyhow, the "Lungi" was cancelled due to reasons already mentioned in the impugned order which amounted to disqualification of the petitioner from being a candidate and, thus, the impugned order would be discussed on these premises alone. Simply because out of different ground one was illegal, the whole order cannot be brushed aside provided the remaining material is well--founded.
5. The remaining objections were to the effect that the Returning Officer could only look for the qualification and not the disqualification. That as no objection was raised from the opposite side, the Returning Officer could not pass the impugned order and, if at all, he could not do so without first giving a notice and holding an enquiry. That the involvement of petitioner's son in a drug case was referred to in the impugned order despite the fact that the son had stood acquitted. That the disqualification was ordered on the ground of reputation which could not be gone into by the Returning Officer in his capacity as such, and that, he had imported his knowledge, if at all, in his capacity as Political Agent. That no evidence could be brought even on this file supporting the grounds of cancellation. That the wealth amassed in the past was made a ground for disqualification whereas the state of affairs existing at present ought to have had been taken into consideration. That as the nomination paper was illegally rejected, it made the election void as a whole.
6. Articles 213, 218(3), 220, 222 to 226 read with Article 2A of the Constitution of Pakistan are to be kept in view while deciding the present question/s. The role of a Returning Officer as given in the Representation of the People Act, 1976 is to be viewed in light of the aforesaid Articles. Section 2(XXII) defines a Returning Officer as one described in section 7 of the Act, Section 7(4) explains the duties of a Returning Officer while section 12(1) of the Act lays down that only a duly qualified person can be proposed for election to the seat concerned. Section 14(3) empowers a Returning'
Officer to take suo motu notice of a few things viewed in light of the powers enumerated above, the Returning Officer while cancelling the candidature of a candidate does not in fact negate the contents of an Electoral Roll. Electoral Roll is a roll that lays down certain particulars and thereby the qualification of a voter and, thus, by itself, is not sacrosanct to determine the qualifications of a candidate to contest any election. Thus, if any objection is raised, Returning Officer is competent to examine such point or points of disqualification and if no objection is raised, he is empowered to take any action suo motu provided there seems to be sufficient 8 grounds to take such action. The only thing that a Returning Officer cannot do qua Electoral Roll is that he cannot declare such roll invalid. Right to be enrolled is different from a right to be a candidate and, thus, the qualification required of a candidate can be enquired into. This matter is fairly explained in Haji Abdur Rehman's v. Ghulam Hassan 1984 CLC 572, Faisal Saleh Hayat v. Returning Officer PLD 1977 Journal 295, Syed Aminuddin Chaudhry v. Election Tribunal PLD 1968 SC 235 and PLD 1969 SC 5.
7.The fact that the petitioner was involved in drug trafficking not only amounted to the cancellation of his "Lungi" allowance but it also was a C disqualification independent of its nature under section 99(1-A)(g) of the Representation of People Act, 1976. In the circumstances, even if the cancellation of "Lungi" does not affect the contents of the Electoral Roll, it operates as disqualification because of being based on an independent ground of his having been involved in drug trafficking.
8. With regard to such allegation of drugs etc.. The learned counsel for the petitioner came out with an allegation that this ground was never enquired into. The Returning Officer while appearing in Court as witness has given detailed account of what he held and on what grounds. The petitioner during the course of evidence has tried to bring about a few personal mala fides against the Returning Officer to the effect that it was motivated by another bureaucrats who was unfavourably disposed towards the petitioner. This seems to be totally after thought because despite such allegation, this ground was never mentioned in the petition, the principles of the submission whereof are far more strict than those of a plaint in a civil suit. The allegation that the Returning Officer could not import his knowledge that he attained in his capacity as Political Agent, is not very reasonable because, with special reference to the peculiar circumstances of Tribal Territory, a Returning Officer could never isolate himself from being a Political Agent and could not sit in a water tight compartment.
9. The Returning Officer, the Appellate Election Tribunal and the High Court exercising jurisdiction under Article 199 of the Constitution, have all relied upon classified material placed before them by the Home Department. I have also gone through such material and documents, dated 2-1-1993, 21- 1-1993, 29-7-1993, 20-8-1993 and 22-8-1993 which provide sufficient material to come to the conclusion that the Returning Officer had arrived at. I am mindful of the fact that such secret documents or classified material is no proof of certain allegation in judicial forum and such type of materials have always been discarded by the superior Courts but I am alive to another factum as well that such principles of appreciation of evidence can only be adhered to where the procedural as well as substantial law of the land is applicable with full force. When no such laws are in any way extended to the Tribal Areas, such strict principles of evidence should also be not made applicable.
It is a peculiar area of its nature where things are known, appreciated and accepted accordingly.
Not a single word in the petition or in the former appeal has been mentioned which could amount to a denial of the allegations of drug trafficking. All the things stated in the statement by the petitioner are not alleged in the petition.
10. To contest election is a statutory right of a person while the disqualifications are Constitutional, as laid down in Articles 62 and 63 of the Constitution. Article 62(d) requires a person to be of good character and not "commonly known" as one who violates Islamic Injunctions. The material produced before me and also before all previous forums provides evidence to the . Effect that the petitioner is involved in drug business. This is sufficient even if D he is "commonly known" and such "commonly known" aspect of a person's conduct is the duty of a Political Agent to know and such knowledge he cannot dispel or ignore while acting as a Returning Officer. Rather he is duty bound to discourage such type of activity. In the instant case it is the Returning Officer himself who had initiated, in his capacity as Political Agent, the cancellation of "Lungi" of the petitioner and many others who are not very relevant at the moment.
11. Many other objections were taken qua furnishing. Of affidavits etc. By the petitioner, but those were not very strong as well as plausible. The petitioner has furnished affidavits on all such documents that essentially required to be so attested. He has not furnished affidavits with some other Annexures of the petition but it was not so seriously required. The objection is overruled.
12. Consequently, the impugned order is upheld and the election petition is hereby dismissed.