2001 PLP 1305 (CLC)

4. It is also his case that his wife has gifted him a residential house over 5 Marlas of land which is in his occupation. That upon the filing of an objection petition for deletion of the name of the petitioner from the list of male voters of Kharala Kallan, the matter had initially been decided by the Revising Authority against him. He preferred a writ petition against that order before this Court and the case was remanded to the Revising Authority for deciding it afresh after hearing the parties and after passing a speaking order and, therefore, the present impugned order was passed. Which has given him a grievance to file the present writ petition.

5. It has been categorically stated by his learned counsel that the petitioner and his family were not enrolled as voters in any other constituency anywhere. And that because of deletion of his name from the village Kharala Kallan, he has been de‑enfranchized.

6. The case of respondent No.6, who is his political opponent, is that he' does not reside in village Kharala Kallan. But it is not his case that his wife and son had not been living at Kharala Kallan. It is for the reason that he has not asked for the deletion of the name of petitioner's wife from the voters' list.

7. An objection has been raised on the basis of section 20 of Electoral Rolls Act, 1974, that no correction could be made after a constituency is called upon to elect. This will not apply to the present case where on the basis of an order of the Revising Authority, the name of the petitioner was deleted from the Electoral Rolls.

8. Section 7 of the Electoral Rolls Act, 1974, gives us the meaning of a resident for purposes of the Electoral Rolls. It reads as follows:‑‑ (1) Save as hereinafter provided, a person shall be deemed to be resident in an electoral area if he ordinarily resides, or owns or is in possession of a dwelling house or other immovable property, in that area. (2) Where a person owns or possesses dwelling houses or other immovable property in more than one electoral area, he may, at his option, be enrolled in any one such area. (3) A person who is in the service of Pakistan or holds any public office shall be deemed to be resident in the electoral area where he is posted, unless he applies in writing to the Registration Officer for enrolment in the electoral area in which he would have been enrolled if he had not been in such service or had not held such office. (4) The wife of any such person as is referred to its subsection (3) and such of his children as are entitled to be enrolled shall, if they ordinarily reside with such person, be deemed to be residents in the electoral area in which such person is deemed to be resident under that subsection. (5) A person who is detained in prison or held in other custody at any place in Pakistan shall be deemed to be resident in the electoral area in which he would have been resident if he had not been so detained or held in such custody."

9. In the case of Inland Revenue Commissioner v. Lysaght (1928) AC 234 at page 244, it was observed as follows:‑‑ "The place of residence of an. individual is determined, not by the situation of some business or property which. he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes, he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a, yacht or some other place of abode." Blackburn, J., observed "we must consider the residence to be where the voter sleeps. habitually".

10. In an American case Hanson v. P.A. Peterson Home Ass'n 35 III. App. 2d 134, 182 N.E.2d 237, 240, word "resident" was defined as follows:-- "Any person, who occupies a dwelling within the State, has a present intent to remain within the State for a period of time, and manifests the genuineness of that intent by establishing an ongoing physical presence within the State together with indicia that his presence within the State is something other than merely transitory in nature. The word 'resident' when used as a noun, means a dweller, habitant or occupant; one who resides or dwells in a place for a period of more or less duration; it signifies one having a residence, or one who resides or abides."

11. In the case of Chaudhry Abdur Razzaq v. The Registration Officer, Okara 1988 SCMR 291, Shafi‑ur‑Rahman, J., observed while granting leave to appeal as follows:‑‑ . "The learned counsel for the petitioner has taken us through the law in order to establish that the only qualification or eligibility required by law for being registered as voter is that one should either own property or should reside. It is not necessary, that apart from owning property one should also reside there. On the facts established, according to the learned counsel for the petitioner, he was entitled to be registered as a voter at Okara particularly so when his name had been removed from the voters' list in Model Town, Lahore. For the present, the question of law raised requires consideration and we, therefore, grant leave to appeal for that purpose. At the same time, we cannot countenance perpetuation of a situation when an eligible voter is deprived entirely and completely of his right to vote and, therefore, we would by an interim order direct that the petitioner should be taken to be a voter of Halqa No.8 of Okara Municipal Committee subject to other restrictions and prohibitions contained in the laws applicable to him and to the elections."

12. Section 7 of the Electoral Rolls Act, 1974, creates by its deeming clause 7(1) a legal fiction whereby a person though not ordinarily living in an electoral area, is to be considered a resident of that area if he owns or is in possession of a dwelling house or other immovable property in that area. The word "or" appearing in section 7(1) is to be used in the disjunctive sense for purposes of this section as this alone preserves the spirit of section

7. It is said in this case that the petitioner did not own property until 28‑4‑2000 in Kharala Kallan and as such his National Identity Card and his name appearing in the telephone directory of another place, were ample grounds for considering that he was not a resident of Kharala Kallan. Whereas, it is to be appreciated that a citizen has a right to migrate to any other place in Pakistan as has been permitted by Article 15 of the Constitution, and a place of residence can always be changed and keeping this in view the words "ordinarily resides" have been used in section

7. According to the petitioner, he had migrated from Gharri Hassu Khan in the year 1998 and was living, at Kharala Kallan with his wife and son. His vote is also not, reflected at any other place, which further reflects that presently he has the intention of living in the village Kharala Kallan: The past history of residences cannot come in his way after he decides to migrate to another place and opts for a change in his residence: A person can always change his domicile and his place of residence. The fact that his wife and son own property in Kharala Kallan since long and are voters in that village should support the case of the petitioner that he also resides with them.

13. Merely because he acquired through Hiba a property in village Kharala Kallan after 15‑4‑2001 when the objections for correction of the electoral rolls were to be made, is not to be read as an evidence against him because his name was already in the electoral list until it was sought to be deleted by the Revising Authority. But the fact of the matter today is that when this case was decided by the Revising Authority on 11‑5‑2001 on remand, the factum of gift of a pre‑date to the date of the decision had to be considered as a factor in his favour.

14. Reference in this connection may also be placed on the case of Muhammad Shafi v. Assistant Commissioner/Registration Officer NLR 1992 Civil 235.

15. Franchise is one of the most valuable rights in a citizen. No one should be deprived of it at any stage. Reference in this connection may be placed on the case of Election Commission of Pakistan v. Asif Iqbal and others PLD 1992 SC 342.

16. Admittedly, the present petitioner is not a voter in any constituency except the present one, therefore, depriving him of his vote in the constituency of Kharala Kallan merely on the ground that the address given in his National Identity Card was different or that his name appeared in the Telephone Directory at a different place; would not be enough as persons may have more than one places of residences and may also move from a previous residence to a new residence while his name continuously appears at the old address. The learned Revising Authority had applied the law in a very narrow sense without appreciating its spirit while also not appreciating that a living organism like a human being keeps moving. It is also forgotten that when his, family' lived at Kharala Kallan there is every possibility that he may, be eating and sleeping at Kharala Kallan alongwith his family.

17. The order impugned is unlawful. It is set aside and it is directed that the petitioner be entered as a voter of village Kharala Kallan.

18. The writ petition is accepted with no order as to costs. M.B.A. /A‑230/L Petition accepted.