1986 PLP 1386 (CLC)

Kh. Sharful Islam for Respondent No.

2. Dates of hearing: 14th and 15th January, 1986. The petitioner has challenged the election to the Provincial Assembly from Constituency P.S. 77 Karachi II, in which the respondent No.2 has been declared as the Returned Candidate. Besides the petitioner respondents Nos. 2 to 36 were the contesting candidates. It has been alleged that during the process of election, the code of ethics was not followed by the respondent No.2. He was procsecuted for use of loud speakers. It is also alleged that the respondent No.2 was convicted for 18 months for burning the National Flag under crime F.I.R. No. 149/79 under sections 177, 149 and 3077372 M.L.R.

10. He was also involved in many other cases of similar offences. It is alleged that on 28‑2‑1985 the respondent No.2 manipulated in such a way that the polling agents of several contesting candidates were not allowed to enter in any of the polling booths and stations, nor they were allowed to sit at the polling booth and in their absence fictitious votes were cast in thousands. The respondent No.2 provided transport to the votes and thousands of persons were allowed to cast voters whose names were not entered in the electoral list. It is alleged that unofficial result declared showed that the petitioner has been elected, but in the official result, the respondent No.2 was shown to have secured 4459 votes more than the petitioner. It is alleged that from the voter's list printed by the Election Authorities, in Sector 11 and Sector No. 11‑A Orangi Town the same persons have been listed twice or thrice in different polling stations in different areas with the result that one person had cast votes twice or thrice at different polling stations. It is further alleged that about 10,000 fictitious votes have been cast and in this act of illegality officials concerned at the behest of respondent No.2 colluded with him. A list of such voters which were entered more than once has been annexed with the petition as Annexure 'I'. The respondent No.2 filed his written statement in which objections were taken that the petition has not been filed as provided by law. It has been denied that the respondent No.2 has indulged in any illegal activity or has committed such acts which amounts to violation of law. The facts regarding conviction and criminal cases pending against him were either denied, disputed or not admitted. It is denied that he was convicted for 18 months for burning the National Flag. It has been explained that he was amongst the persons who were protesting and making demand for repatriation of those Muslims who are detained in Bengladesh and in that respect he was arrested, kept in jail as an under trial prisoner, but he was never produced before any civil Court or tried by any Court, nor charge‑sheeted, nor opportunity of hearing was awareded, and after about 9 months he was released from the Central Jail. In the disturbance in Bushra Zaidi's incident when curfew was imposed, at the instance of the petitioner and in conspiracy with the local police and administration the respondent No.2 was arrested. All other allegations regarding fictitious voting and irregularties at the polling stations have been denied. From the averments made in the petition it is clear that most of the allegations mentioned in it are vague, unspecific and without material particulars as required by section 55 of the Representation of Peoples Act, 1976. The only specific objection with material particulars was in respect of the electoral list in which according to the petitioner name of one voter was repeated twice 6r‑'thrice and according ‑to him these votes were cast which were more than ten thousand. The issues were accordingly framed on 9‑9‑1985, but they were recast on 19‑11‑1985 as follows:‑ (1) Whether the voters registered at serial numbers mentioned in annexure 'I' of the petition were registered twice, or more than twice in the electoral roll, if so, whether the wrong entries in electoral roll were made in collusion with, and at the instance of respondent No.2. If the issue is decided in affirmative, then whether it has materai)ly affected the result of the election? (2) Whether the petitioner can challenge the entries in the electoral list in this election petition? (3) Relief? Considering the nature of controversy in the petition and the objection raised by the respondent No.2 that the electoral list cannot be challenged in an election petition, issue No. 2 was tried as a preliminary issue. I have heard the learned counsel for the parties. Mr. Ashraf Kazi the learned counsel for the petitioner has made it cannot be treated as final and binding. Before hearing on this issue the petitioner had examined Gul Muhammad the respondent No.l who was the Returning Officer. He had produced the Master Electoral List relating to the polling booths in this constituency. He had prepared the electoral list after complying with the provisions of law. He had invited objections from the public and the list was available for inspection by the public. In this background now it is to be examined whether the entries in the electoral list can be challenged in these proceedings. The electoral list on the basis of which the elections are held in the National Assembly and the Provincial Assemblies is prepared under the provisions of 'the Electoral Rolls Act 1974 (Act No.XXI of 1974). Under section 4 of this Act electoral rolls are prepared on principle of separate electorate for' the Muslims and Non‑Muslims and revised annually. A Registration Officer for the Electoral Area or group of electoral area is: appointed for the purpose of preparation, revision, correction and amendment of the electoral roll. Under section 6 the Registration Officer for an electoral area under the superintendence, direction and control of the Chief Election Commissioner prepares for that area in the prescribed manner, a preliminary electoral roll including therein the name of every person entitled to be enrolled as a voter. The preliminary electoral roll prepared under section 6 together with a notice inviting claims and objections for correction if any is published and displayed in the manner as prescribed by rules 7 and

8. A Revising Authority is also appointed by the Chief Election Commissioner for the purpose of receiving and deciding claims, objections and applications for corrections relating thereto. Section 10 provides that within 21 days following the` date of publication of the preliminary electoral roll under section I every claimant for inclusion of a name in the electoral roll and every objection to, or application for correction in any entry therein shall be made to the Revising Authority on the prescribed form. Such Forms are prescribed under Rule

9. The manner of lodging the claim is provided by Rule

10. A claim or objection is addressed to the Revising Authority which may be presented personally through an authorised agent or sent by post. A Register of claims and objections is maintained by every Revising Authority. Unless the objection or claim can be decided without further inquiry being prima facie valid or time barred and not properly presented the same shall be decided after holding a summary inquiry after giving notice to the parties concerned. The decision so made by the Revising Authority shall be final and communicated to the Appropriate Registration Officer who shall correct the electoral roll in accordance with the decision of the Revising Authority. The clerical or printing errors can subsequently be corrected by the Registration Officer. After this process is over under section 16 the Registration Officer shall publish the, final electoral roll. Section 17 provides‑ that an electoral roll shall be revised and corrected annually. Section 18 (2) further provides that any person can apply for correction of any entry in the electoral roll and if such application does not relate to application then after giving notice to the person to whom that entry relates, and after such inquiry as he may consider necessary shall correct the electoral roll, accordingly. Section 19 provides that if the Chief Election Commissioner on account of any gross error or irregularity in or in the preparation of the electoral roll for any electoral area or part thereof considers it necessary he may cancel the electoral roll for such area or part and order for preparation of a fresh electoral roll in accordance with the provisions of the Act. Such order as well as order of the correction or revision of the electoral roll cannot be passed after the constituency of which such electoral area falls part has been called upon to elect its representative and before such representative has been elected. Section 25 provides that no person shall be enrolled on the electoral roll for any electoral area more than once or on the electoral roll for more than one electoral area. Section 26 provides that electoral roll shall not be invalid for omission to enroll any person or mis‑description of a person enrolled therein or inclusion of the name of any person not so entitled. Section 27 vests the Commissioner with a power subject to section 20 to exclude the name of any person from the electoral roll who was not entitled to be enrolled or has died or disqualified to be voter and to remove "the name of any person from the electoral roll where such removal becomes necessary due to repetition of the name in the same electoral area in the electoral rolls of more than one electoral area." Therefore, before the electorate is called upon to elect the representative such power can be exercised by the Chief Election Commissioner. Section 29 bars the jurisdiction of any Court from considering the legality and validity of the electoral roll. It reads as follows:‑ '

29. Bar of jurisdiction.‑‑ No court shall question the validity of the electoral rolls prepared or revised under this Act or the legality or propriety of any proceedings or action taken thereunder by or under the authority of the Commissioner or a Registration Officer.' The entire scheme of the Act makes it clear that several steps have been provided to prepare a correct electoral roll. First a preliminary electoral roll is published inviting objections fram the public. The Electoral Roll is always available for inspection by the public. Even if for some reason or the other objections could. not be filed to the entries in the electoral roll then as provided by section 27 subsection (C) it is open to any person to make an application to the Chief Election Commissioner to exclude the name of such person which has been included in the electoral roll several times. In such cases the objection does not depend upon the.' fact that the elector is not qualified to vote. The only objection is that the name of the elector has been included more than once which is not permissible in law. After having travelled through the entire process provided by law when the electoral roll is finally published its validity cannot be challenged. The party who wishes to challenge the electoral roll should have been vigilant to avail of several opportunities provided under law. Section 29 in absolute terms bars the jurisdiction of any Court from adjudicating upon the validity of electoral roll. In Aminuddin Chaudhry v. Election Tribunal 1968 S C 235 referred by the learned counsel for the petitioner the election was called in question before an Election Tribunal on the ground that the successful candidate was not entitled to be enrolled as a voter in the Unit from which he was elected. After referring Vb the provisions of the Constitution of Pakistan 1962 and the Electoral College Act 1964 it was observed as follows:‑ "The only conclusion, therefore, which can be arrived at from the general scheme of procedure as to preparation of the electoral roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the rules, the only remedy to the persons objecting to the same is by way of objection under the rule and that if the said remedy is not availed of the electoral roll becomes final and conclusive as to his qualification and the Election Tribunal is, therefore, precluded from enquiring into the question of his possession, necessary qualifications as a voter. The electoral roll as revised by the Revision Authority would, therefore, be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications." "If a successful candidate's name has been entered in the electoral roll and remained there upto the time of nomination his right to stand as a candidate cannot be challenged save and except on the ground of statutory disqualifications. The Election Tribunal had, therefore, no jurisdiction to enquire into the question whether the name of the respondent Khurshed Alam should or should not have been in the electoral roll of Unit No.5." While laying down this dictum the Supreme Court relied upon and quoted the following observation made in Imtiaz Ali v. Ghulam Muhammad Butt PLD 1958 S C (Pak.) 228: "This view is based upon a settled principle of election law that Election Commissions cannot go behind the final elecoral rolls as amended in accordance with the final orders, of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualifications. A reference may here be made to the case of Stove v. Joliffee 9 LR‑CR 734 where it was held that the register of voters is conclusive on a Returning Officer, as well as on any Tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Borough's case, 50 M & H 135 it was held that the register is conclusive and the people whose names are mentioned on it are presumed to have the necessary qualifications: it may be that their names ought not to have been there, but they were there at the time of the election.' It was declared also that the policy of the law is to make it necessary to raise all questions as to rights to vote before the Registering and Revising Authorities and this has been done by preventing any such question from being raised at any other time, or in any other manner. These views have been approved in reported cases of elections to Legislative Assemblies in India as well." From these weighty observations of the Supreme Court it is, clear that the electoral roll as prepared, revised and maintained would be binding on the Tribunal except for the personal statutory disqualification which may disentitle an elector from casting the vote or contesting the election. In election petition before the Tribunal the entries in electoral roll cannot be challenged. Further reference can be made to Ch. Muhammad Hussain v. Election Tribunal and another, 1982 S C M R 307 referred by Mr. Khawaja Sharful Islam. Reference can be made also to Sirajul Islam v. Ahsan Ali Mondal and others PLD 1969 SC 5 and Riaz Mahmood Khan v. Mureed Hussain 1980 S C M R

548. Mr. Ashraf Kazi has referred to Stowe v. Jolliffe (1874) LRC 734 (9 LRC 734) in which the same principle has been enunciated. From a perusal of the petition and the affidavits of evidence produced by the petitioner the controversy that arises is whether the electoral list contains duplicate or triplicate entries in respect of 10569 votes. These entries, if appear in the electoral list cannot be challenged and only on that basis it cannot be held that the election is void as a whole. Unable to challenge the entries in the electoral roll the main attempt of the petitioner is to show that in fact vote of one person has D been cast more than once. The affidavits of evidence produced by the petitioner do not state anywhere that the votes of such persons whose names are alleged to have been included in the list twice or thrice were challenged, or objected by the petitioner and his polling agents. According to the learned counsel for the petitioner, the electoral list of about 20 polling stations included such entries. The petitioner has filed affidavit of Muhammad Yakoob and Liaqat Ali who wore‑ his polling agents at polling stations Nos. 87 and 106 respectively. They have stated that they were not allowed to enter the polling stations. In Annexure to the petition the petitioner has given the list of male and female voters whose names were listed more than once in the polling stations mentioned therein. Polling stations No.87 and 106 in respect of which affidavits have been filed are not included in this list (annexure 'I'). Therefore, there is no affidavit of any polling agent of the polling stations mentioned in Annexure 'I' to show that the voters whose names have been entered more than once were challenged. Even if the petitioner had not been vigilant enough to apply for correction or revision of the electoral list, another opportunity was available to him to challenge such votes which were cast by the voters twice or thrice. If the names of voters had been repeated in the electoral list there was possibility that either a fictitious person by impersonating cast the vote or a genuine voter should appear for the first, second or third time and cast his vote. So far the first possibility is. concerned it could have been checked by raising objection to the voter when he appeared at the polling booth, by challenging his identification. No affidavit of evidence has been filed to establish that this procedure was adopted by the petitioner. So far the second possibility is concerned it could also be avoided or at least checked to a great extent if the petitioner's agent would have objected to such voters and asked them to show at least their hand which would in the normal course would have been marked with idelible ink to show that he had cast vote at another polling station. There is no allegation in the petition that Election Authorities were not marking the thumb with indelible ink. The petitioner and his agents could have also challenged such voters and evidence could have been produced before the Tribunal that such voters were challenged and, therefore, the Tribunal should have decided the validity of such votes. None of these procedures were adopted by F the petitioner. What the petitioner wants now is that the Presiding Officer should produce the ballot papers cast by the voters, their counter‑foils and the master electoral list. From these documents the marked ballot papers of 10569 voters whose names are alleged to have been repeated in the electoral list should be taken out and compared with the counter‑foils to prove that these votes have been cast and also to ascertain in whose favour the votes have been cast. This exercise in my view will not be permissible under the law. It will violate the) secrecy of the election. Mr. Ashraf Kazi the learned counsel contended that as a person is prohibited from casting his vote more than once and since the voters whose names have been repeated in the electoral list have cast their votes twice or thrice, the petitioner would be entitled to investigate into this fact because such voters were not entitled to vote in the election. In this regard reference has been made to section 83 of the Representation of People Act 1976. It is true that double voting is not permissible under law but merely because the name of a person has been entered twice or thrice it cannot be presumed that he has cast votes as many times as his name has appeared in the electoral list. To avoid such a situation the law has provided sufficient safeguard as discussed above and if a party fails to avail of such procedure then unless a very strong case is made out, the production of marked ballot papers and their counter foils for examination by the party or even the officials of the Election Commission will not be permissible. In this regard reference is made to Hari Ram v. Hira Singh and others AIR 1984 S C 396 where the following observation was made: 'The main ground put forward by the respondent was that there were a number of dead persons 'for whom also votes were cast. Despite this allegation no details and particulars were given nor was it even mentioned whether the Polling Agent of the respondent had made any note of the fact that votes were actually cast for dead persons and the number of these votes. The allegations made by the respondent‑petitioner in ‑his application for inspection are frightfully vague. There is no allegation as to whether any vote was cast for the dead persons and this is what the respondent sought to find out by inspecting the marked electoral rolls. It is manifest that this attempt of the respondent was nothing but to fish out the material for challenging the election of the appellant and it clearly violated the sanctity and secrecy of the electoral process. Thus, the High Court was clearly wrong in allowing such prayers for inspection. As far as the inspection of counter‑foils was concerned even the respondent did not press for the same realising that he had not made out any strong case for such an action.' In the present case also although the petitioner has alleged about the repetition of the name of voters in the electoral list, no allegation has been made that his polling agents had noted or challenged such voters. After the election the petitioner noticed the repetition of names in the voters list, and now wants to fish into the evidence by examining the marked ballot papers and counter‑foils. Such roving inquiry cannot be allowed. The petition is, therefore, dismissed A . A Petition dismissed