P L D 1966 (W (PLP)

ANWARUL HAQ, J.‑

The facts leading to this petition under Article 98 of the Constitution lie within a narrow compass. On the 3rd of October 1964, the Chief Election Commissioner issued a notification under section 15 of the Electoral College Act, 1964 (hereinafter referred to as the Act) calling upon the electoral units (as finally delimited by the Provincial Election Authorities, East and West Pakistan), to elect from each electoral unit, before the 21st of November 1964, a person as a member of the Electoral College of Pakistan. In pursuance of this notification, the Provincial Election Authority prepared a programme for the holding of elections, and according to this programme, Thursday, the 15th of October 1964, was fixed as the nomination day. On that day it was, found that no nominations had been ,filed for the Electoral Unit No. 505, known as Ramaswami area, Karachi. Accordingly a fresh public notice was then issued by the Returning Officer on the 14th of November 1964, calling nomi nations by the 21st of November 1964, which were to be scrutinised on the 22nd of November 1964, and the elections were to be held on the 3rd of December 1964. Five persons, including the petitioner Munir . Ahmed and respondent No. 3, Syed Hisbanullah, filed their nomination papers in response to the fresh notice. On scrutiny, the nomination papers of the petitioner Munir Ahmed and three other candidates were rejected, thus leaving respondent Hisbanullah alone in the field. He was accordingly declared elected unopposed by the Returning Officer under section 29 of the Act.

2. The nomination paper of the petitioner was rejected by the Returning Officer on the ground that the names of the petitioner as well as his proposer Mushtaq Ahmad and his seconder, Saeed Ahmad, were not to be found in the final Electoral Roll of the Unit, as supplied to the Returning Officer by the Registration Officer. The petitioner filed an appeal under subsection (5) of section 23 of the Act, but the same was dismissed by the Appellate Authority, observing that the scrutiny had to be done on the basis of the Electoral Roll as supplied to the Returning Officer, and as these names did not appear in that Electoral Roll, the nomination papers of the petitioner had been rightly rejected.

3. In the present petition, it is contended that the Returning Officer as well as the Appellate Authority have acted illegally, inasmuch as they deliberately ignored the entries of the names of the petitioner, his proposer and seconder appearing in an attested copy of the Electoral Roll which was placed before these Authorities by the petitioner. It is further contended that the Returning Officer has also acted illegally in accepting the. nomi nation paper of respondent No. 3, as the name of this respondent did not appear in the attested copy of the Electoral Roll as supplied to the petitioner by the Registration Officer, and, therefore, the respondent No. 3, not being a voter enrolled in the Unit concerned, could not contest the election from this unit.

4. On these allegations, the following prayers have been made:‑-- (a) that the order of the Returning Officer, rejecting the nomination paper of the petitioner be declared to be without lawful authority and of no legal effect; (b) that the order. of the Returning Officer accepting the nomination of respondent No. 3, be similarly declared to be without lawful authority, and of no legal effect; and (c) as a consequence; it be declared that the petitioner is the only validly nominated candidate for election to the Electoral College from Unit No. 505.

5. This is indeed a remarkable case which reflects little credit on the working of the Registration Officer as well as the Deputy Election Commissioner concerned with the preparation of the Electoral Rolls for this Unit. Before us, two attested copies of the final Electoral Roll for this Unit have been placed by the parties which show conflicting entries. The petitioner's copy is Exh. A/2, which contains 175 printed names and three names written .in ink by some official in the office of the Registration Officer and bearing the signatures of Mr. Siddiqui, who was then functioning as the Registration Officer. These three names appear at Serial Nos. 176, 1.77 and 178, and are those of Saeed Ahmed, Mushtaq Ahmed and Munir Ahmed, that is of the seconder, the proposer and the petitioner respectively. The name of the respondent No. 3, Syed Hisbanullah does not appear at all in this attested copy of the final Electoral Roll. The other copy on which reliance has been placed by the respondents is Exh. A/1 and this again contains 175 printed names which tally with those contained in Exh. A/2, but at Serial No. 176, there‑appears the name of Syed Hisbanullah written in ink and initialled by the Registration Officer Mr. Siddiqui bearing the date 16/10. The names of the petitioner, his proposer and seconder are absent in this copy of the Electoral Roll. It will, therefore, be seen that these two attested copies of the Electoral ‑Roll are materially different from each other, and both bear the signatures of the Registration Officer. We called upon the Registration Officer to appear before us to explain the discre pancies between these two documents. He has stated that the name of Syed Hisbanullah was added by him to the Electoral Roll on 16‑10‑64 under the orders of the Deputy Election Com missioner Mr. Tariq Muhammad Khan, C. S. P. and that the names of the petitioner and his proposer and seconder were added by him in the Electoral Roll on the 26th of October 1964 in pursuance of applications made by them in this behalf. He has tried to explain the omission of the names of the petitioner and his supporters in the final Electoral Roll as supplied to the Returning Officer by saying that the Roll had already been sent to that Officer before the three names were added on the 26th of October 1964, but there is hardly any explanation for the absence of the name of Syed Hisbanullah in the attested copy supplied to the petitioner. It is, therefore, a matter for specu lation as to what are the names really included in the final Electoral Roll of this constituency as prepared by the Regis tration Officer. However, the undisputed facts as regards the petitioner and respondent No. 3 are that the name of the former was added on the 26th of October 1964, while the name of the latter was added on the 16th of October 1964.

6. The subject of preparation of the Electoral Roll is dealt with in section 8 of the Act which prescribes that in the first instance a draft Electoral Roll shall be prepared and finalized in the prescribed manner, and subsection (5) of this section provides that an Electoral Roll may be amended and corrected from time to time in the prescribed manner so as to include the name of any person who has, since its preparation, become qualified to be enrolled thereon, or to delete the name of any person who has died or has become disqualified for enrolment. The prescribed manner is laid down in rule 22 of the Electoral College Rules which provide that an application on a stamped paper of Rs. 5 is to be made by the person concerned, and the name may be added to the Electoral Roll by the Registration officer after due inquiry, if he is satisfied that the applicant is eligible to be so enrolled. Sub‑rule (3) of rule 22, however, contains a prohibition to the effect that:‑‑ "No application under sub‑rule (1) shall be entertained and no amendment under sub‑rule (2) of any Electoral Roll upon any such application shall be made, at any time after the electoral unit to which the application relates has been called upon to elect its representative and before a member of the Electoral College has been elected." Now in the present case, as already stated, the Electoral unit had been called upon to elect its representative by a notification issued by the Chief Election Commissioner on the 3rd of October 1964, and the time limit set for this purpose was the 21st of November‑1964. It is clear to us that during this period, namely, between the 3rd of October and the 21st of November 1964, no additions or amendments could be made to the final Electoral Roll relating to this unit. . The Registration Officer was, therefore, not competent in law to add the names of the petitioner or his supporters, or that of respondent No. 3 to the Electoral Roll which had already been finalised before the 3rd of October 1964.

7. It was contended by the learned counsel for the petitioner that as no nomination papers had been filed in pursuance of the programme drawn up by the Provincial Election Authority after the issuance of the Chief Election Commissioner's notification of the 3rd of October 1964, it should be held that this notification had become infructuous in so far as this particular unit was concerned and, therefore, the bar contained in sub‑rule (3) of rule 22 did not operate in this case. It was also submitted in this connection by Mr. Saeed that there must have been a fresh notification by the Chief Election Commissioner under section 15 of the Act calling upon this electoral unit to elect its representative, but this fresh notification was not produced before us by either side and it could not be traced though a diligent search was made in this behalf by all the parties to this petition as well as by the Librarian of this Court. Even the learned Deputy Election Commissioner who was examined by us during the course of hearing of this petition, stated that he did not remember that any such fresh notification was. issued. It is thus apparent that there is no substance in the submission made by Mr. Saeed that a fresh notification must have been issued under section 15 of the Act as no such notification is available. Even otherwise, we do not think it was necessary to issue any such notification for the reason that once the Chief Election Commissioner had called upon the electoral unit to elect its representative, the notification remained in force until at least the time‑limit set therefore had expired, that is, up to the 21st of November 1964. The programme for election is drawn up by the Returning Officer acting under the instructions of the Provincial Election Authority under section 19 of the Act, and if for any reason the programme cannot be adhered to, then certain changes or adjustments can be made under section '28 of the Act. In the present case as no nominations were filed by the date originally fixed for this purpose, it is clear that fresh programme must have been made out under section 28 of the Act. The contention that anything done under this programme beyond the 21st of November 1964 could not be treated as legal, does not need to be examined for the reason that it is not necessary for the decision of the present case. The only fact which is relevant for our present purpose is that the notification under section 15 of the Act had been issued by the Chief Election Commissioner on the 3rd of October 1964 and the time‑limit set therein was the 21st of November 1964, and there is no other notification superseding the notification of the 3rd of October 1964 and, therefore, the result is that between the 3rd of October and the 21st of November 1964, no changes could be made in the Electoral Roll of this unit in view of the provisions contained in sub‑rule (3) of rule

22. Such being the case, the Registration Officer clearly acted illegally in adding the names of the petitioner, his two supporters and of respondent No. 3, Syed Hisbanullah to the Electoral Roll of this unit.

8. It was brought to our notice by the learned A. A: G. that in order to get over the bar contained in sub‑rule (3) of rule 22, the President had issued amending Ordinance VIII of 1964 on the 14th of October 1964 by which a new section, namely section 13‑A was inserted in the Act, granting power to the Chief Election Commissioner to add the name of any person to an Electoral Roll at any stage. The amending Ordinance, however, has no effect in the present case for the reason that the names of the petitioner and the respondent No. 3 were not added by the B Chief Election Commissioner, nor were they added by any officer exercising or purporting to exercise any such delegated power. The Deputy Election Commissioner Mr. Tariq stated before us that no such power had been delegated to him by the Chief Election Commissioner and that, in any case, he had not ordered the inclusion of any name in the Electoral Roll. He explained that the endorsement made by him on the 14th October 1954 on the application of respondent No. 3, Syed Hisbanullah did not amount to an order to add the name of this person in the Roll, and that he only issued an administrative direction to the Registration Officer to inquire into the matter and to rectify the omission if he was satisfied about the eligibility of Syed Hisbanullah. It is thus clear that the names of the petitioner, and the respondent No. 3 as well as of the two supporters of the petitioner were added by the Registration Officer in violation of the clear provisions of sub‑rule (3) of rule

22. For this reason, it must be held that all these four names were added without C lawful authority. As a necessary corollary, it follows that the petitioner's nomination papers were rightly rejected and he was not entitled either to vote or to stand as a candidate from this Electoral unit. Similarly the respondent was also not entitled to stand as a candidate from this unit.

9. It was contended by Mr. Sohail, the learned counsel for respondent Hisbanullah that even if we come to the conclusion that this respondent's name has been illegally included in the Electoral Roll, yet we should not pass any order concerning the validity of his nomination and election for the following reasons: (a) that once a finding is given that the petitioner is not a voter from Electoral Unit 505, he has no locus standi to challenge the nomination and election of Syed Hisbanullah, and he cannot be deemed to be an aggrieved person within the meaning of that term as used in Article 98 of the Constitution; (b) that the petitioner has not come to this Court with clean hands inasmuch as he failed to disclose that he was a registered voter for Electoral Unit 1205, and had already, proposed or seconded a candidate, namely, Wahidur Rehman from that Unit before applying for the registration q, his name in Unit 505, and (c) that‑in any case there was an alternative remedy available to the petitioner by way of an Election Petition, as provided by section 58 of the Act.

10. We do not see any substance in these submissions of the learned counsel for the respondent Hisbanullah. Even though the petitioner did not disclose in the present petition that he was already a registered voter for Electoral Unit 1205, yet that did not in any manner amount to the suppression of a material fact inasmuch as the prohibition contained in section 11 of the Act regarding double enrolment is not absolute, and the section does envisage a situation where a person may be enrolled in more than one Electoral Unit. All that the section contem plates is that such a person , shall not cast his vote in more than p one Unit. In other words, there was no absolute prohibition on the enrolment of the petitioner in more than one Electoral Unit, even though he had proposed or seconded a candidate in Electoral Unit 1205, as he had not cast his vote in that Unit, before applying for his registration in Unit

505. It seems to us that the instant case is not on all fours with the case relied upon by Mr. Sohail, namely, Dalmia Cement Ltd. v. Local Board, Karachi and two others (P L D 1958 Kar. 211). In that case the suppression of certain material facts had led the Court to issue an interim order in favour of the petitioner, and it was held that if those facts had been disclosed, the Court would not have acted at all on the application of the petitioner as on those facts the petitioner had no locus standi to move the petition. In the present case this is not so. The petitioner's name did appear in an attested copy of the Electoral Roll, and accordingly on the basis of that Electoral Roll he was prima facie entitled to be nominated as a candidate and he did apply accordingly. The mere suppression or non‑disclosure of the fact that he was also a registered voter for Electoral Unit 1205 did not have a material bearing on the case as put forward by him, namely, that on the basis of his attested copy of the Electoral Roll he was entitled to be nominated. We consider, therefore, that this is indeed not a case where on the basis of these facts alone it can be held that the petitioner has not come with clean hands.

11. As regards the contention that the petitioner is not an aggrieved person, suffice it to say that he was a person who had contested the election, and by the rejection of his nomination papers, he clearly became an aggrieved person. A person does not cease to be an aggrieved person simply because at the conclusion of the hearing of his petition, the Court comes to the conclusion that he has no case. The fact whether a person is or is not an aggrieved person has to be judged prima facie on the basis of the averments made in the petition, and in the instant case the petitioner Munir Ahmed was clearly a aggrieved person as his nomination paper had been rejected.

12. Finally, the contention that there is an alternative remedy available to the petitioner by way of an election petition under section 58 of the Act also does not appear to us to have any force, for the reason that in view of our finding that respondent No. 3 was not entitled to be enrolled as voter in this unit on the date on which he was enrolled, it is clear that we would be failing in our duty if we did not give effect to this finding against the respondent, simply because there is another remedy which may be open to the petitioner to challenge the election of the respondent. It would be highly unjust and inequitable to force the petitioner to resort to further litigation to establish something which he has already succeeded in doing in this Court, namely, the ineligibility of the respondent to be nominated for election from the unit concerned. We are, therefore, of the view that it is our duty to give a declaration that the nomination paper of the respondent was accepted without lawful authority, and, as a result, his election must be regarded as null and void.

13. There is another aspect of the matter, namely, that we can treat the petitioner's prayer with regard to the validity of the respondent's election as a prayer for the issuance of a writ in f the nature of quo warranto, as contemplated by clause (2) (b) (ii) of Article 98 of the Constitution. Under this provision of the Constitution, the application can be made by any person, and not necessarily by an aggrieved person.

14. It was, however, contended by Mr. Sohail that a member of the Electoral College does not hold any public office as defined in Article 242 of the Constitution. In that Article, the definition given is as under:‑ "Public Office includes any office in the service of Pakistan and membership of an Assembly." It was contended by Mr. Sohail that if indeed the member ship of the Electoral College of Pakistan or of the Basic Democracies, was intended to be included in the term "Public Office", then the Constitution‑maker would have explicitly said so in the definition clause, as he has done with regard to member ship of an Assembly.

15. The contention of the learned counsel is clearly without substance, for the reason that the definition of the term "Public Office" as given in Article 242 of the Constitution is not at all exhaustive; on the other hand, it follows the familiar pattern of only making it clear that besides other things, the term also includes the offices mentioned in the definition. In other words, the definition not being exhaustive cannot be used as a basis for the argument that it excludes the membership of the Electoral College. According to the definition given on page 700 of Judicial and Statutory Definitions of Words and Phrases, Volume III, Second series, published by St. Paul West Publishing Co., U. S. A., a "public office" is‑ "a right, authority and duty created and conferred by law, by which an individual is invested with some portion of the sovereign functions of the Government to be exercised by him for the public. It implies a delegation of a portion of the sovereign power to and possession of it by the person filling the office."

16. Now, in the present case, the Electoral College has been created under Article 158 of the Constitution, and persons elected as members of this College have to take an oath under Article 159 of the Constitution. The functions assigned to the members of the Electoral College are the election of the President, and election of the members of the National and the Provincial Assemblies. Besides these electoral functions, the members of the Electoral College may be given other functions as contem plated by clause (4) of Article 158 of the Constitution. We know that these other functions have in the past included membership of Basic Democracies. It is thus clear that the members of the Electoral College hold a public office and perform very important public functions under the Constitution of the Islamic Republic of Pakistan. Accordingly, under Article 98 of the Constitution, this Court has the power to require a member of the Electoral College to show under what authority of law he claims to hold that office. We have already stated that in the present case, respondent No. 3, Hisbanullah is unable to show that he was legally entitled to be enrolled as a voter in Unit No. 505, and consequently to be elected as a member of the Electoral College from that Unit.

17. For the reasons given above, the present petition is accepted only to the extent that we declare that on the 16th of October 1964 respondent No. 3, Syed Hisbanullah, could not have been legally enrolled as a voter in the Electoral Roll of Unit No. 505, Ramaswami, Karachi, and accordingly his nomination papers for election to the Electoral College of Pakistan from this Unit, were accepted without lawful authority, and his election as such member must be regarded as null and void. The petition is dismissed in so far as it seeks to challenge the rejection of the petitioner's own nomination papers. In the circumstances, we leave the parties to bear their own costs. K.B.A. Petition partly accepted.