P L D 1967 Karachi 104 (PLP)

ANWARUL HAQ, J.‑‑‑The question referred to the Full Bend:, is as follows:‑‑ Whether in view of provisio (iii) to subsection (3) of section 23 of the Electoral College Act, 1964, the entry relating to a person's age in the electoral roll of the unit concerned is final in the matter of his candidature for election to the Electoral College of Pakistan under Article 158 of the Constitution, or whether it is open to a Returning Officer for deciding this question to go behind the entry appearing in the, relevant electoral roll, on an objection being taken in this behalf.

2. The question has arisen in the following circumstances‑‑ The petitioner, Muhammad Tufail, as well as respondent No.1, Muhammad Haleem, contested the last election to the Electoral College of Pakistan from Unit No. 1818, Karachi. At the time of scrutiny of the nomination papers, the petitioner objected to the candidature of the respondent on the ground that the latter was below 25 years of age and in support of this objection he placed reliance on the relevant entry appearing in the electoral roll of this unit, in: which the name of the respondent is entered at Serial No. 140 and his' age is shown as 23 years. The objection was, however, rejected by the Returning Officer. From the counter‑ affidavit filed by respondent No. 1, it appears that he produced before the Returning Officer an affidavit of his father as well as an age‑certificate from the Police Surgeon showing that he was over 25 years of age. In the election that followed, the respondent was declared elected. According to the averments appearing in the counter‑affidavit, the respondent obtained 211 votes, whereas the petitioner secured 116 votes, although rather surprisingly, in the Official declaration of the result the respondent was shown as having been elected unopposed.

3. The contention on behalf of the petitioner is that the electoral roll, having been prepared and finalised in accordance with a very elaborate procedure prescribed in the Electoral College Act, 1964 (hereinafter referred to as the Act) and the Electoral College Rules, 1964 (hereinafter referred to as the Rules), contains a specific column for stating the age of the elector, from which it is clear that finality would attach to this entry not only for the purpose of holding that he is above the age of 21 years but also for the purpose of determining whether he is qualified to stand as a candidate for election to the Electoral College of Pakistan under Article 158 of the Constitution. It is submitted that there is no other machinery provided by the Constitution to ascertain the age of an intending candidate and that Article 158 of the Constitution, which prescribes the minimum age of the intending candidate as 25 years, leaves no doubt that the election of members of the Electoral College of Pakistan is to be in accordance with law, and that law is none other than the Electoral College Act, 1964.

4. It is further contended that section 23 of the Act is a specific provision dealing with the subject of the scrutiny of nomination papers filed 8y candidates for election to the Electoral College of Pakistan and proviso (iii) to subsection (3) of this section enjoins the Returning Officer, in clear and unambiguous language, not to enquire into the correctness or validity of any entry appearing in the electoral roll, and, therefore, it is clear that the finality attaching to the electoral roll extends to the qualifying age of the candidates as well.

5. Section 23 of the Act, on which reliance is placed by the learned counsel for the petitioner, may be reproduced here for facility of reference:‑ "

23. Scrutiny.‑(1) The candidates, their proposers and seconders and one other person authorised ‑in this behalf by each candidate may attend the scrutiny of nomination papers and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 21. "(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and dispose of any objection raised by any such person to any nomination. (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 any nomination paper if he is satisfied that‑ (a) the candidate is not qualified to be a member of the Electoral College for the Electoral unit for which he has been nominated; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper; (c) any provision of section 21 or section 22 has not been complied with; or (d) the signature of the proposer or the seconder is not genuine: Provided that‑ (i) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any, other valid nomination paper; (ii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith; and (iii) the Returning' Officer shall not enquire into the correctness or validity of any entry in the electoral roll. "(4) The Returning Officer shall endorse on each nomination paper his decision accepting or rejecting it and shall, in the case of rejection, record a brief statement of reasons therefor. (5) A candidate whose nomination paper has been rejected under this section may appeal against the rejection within the prescribed period to such officer as may be specified by the Commissioner; and an order passed on such appeal shall be final.

6. I consider that for a proper appreciation of the scope and meaning of the finality attaching to an electoral roll prepared under the Act, it is necessary to refer briefly to the provisions under which the electoral roll is prepared. In the first place, there is Article 155 of the Constitution which provides that each Province shall, in accordance with law, be divided into not less than forty thousand territorial units which shall be known as electoral units. Article 156 then provides that an electoral roll shall, in accordance with law, be established and maintained for each electoral unit. Article 157 lays down the qualifications neces sary for entitlement to be enrolled on the electoral roll for an elec toral unit. It is provided that any citizen‑(a.) who is not less than 21 years of age; (b) who is not of unsound mind; and (c) who is a resident of, or who is deemed by law to be a resident of, an electoral unit shall be entitled to be enrolled on the electoral roll for that electoral unit. It is in pursuance of these constitutional provisions that the Electoral College Act, 1964, has been enacted. Section 8 of this Act directs the Registration Officer to prepare for each electoral unit in the prescribed manner a draft electoral roll obtaining the name of every citizen who, on the qualifying date, fulfils the three conditions prescribed in Article 157 of the Constitution. Subsections (2) and (3) of this section contemplate the publication of the draft roll and inviting of claims and objections for making additions or modifications in the draft electoral roll. Subsection (4) of the same section then provides for the publication of the final electoral roll for each electoral unit. Subsection (5) makes provision for the amendment and correction of the electoral roll from time to time 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. Subsection (6) says that the final electoral roll so prepared shall remain in force until revised under section 12 of the Act.

7. In the Rules, detailed instructions are given for the implementation of the provisions contained in section 8 of the Act. Rules 8 to 24 provide an elaborate machinery for the preparation and finalisation of the electoral roll. The electoral roll is to be prepared in Form III appended to the Rules and in this form one of the columns relates to the age of the elector. In Form IV, which is intended for filing claims for inclusion of names in the electoral roll, there is again a column for stating the age of the claimant. Similarly, in Form V, which is intended for filing objections to the inclusion of names in the electoral roll, there is a column for stating the age of the person to the inclusion of whose name objection is being taken. The electoral roll thus contains information regarding the age of a person enrolled as a voter thereon.

8. The nomination of candidates for election to the Electoral College of Pakistan is dealt with in section 21 of the Act, which lays down that any voter of an electoral unit may, for the purpose of election as a member of the Electoral College from that unit, propose or second the name of any person who is duly qualified to be elected as such member. It is clear that the phrase "duly qualified" has reference to Article 158 of the Constitution. We may now examine this Article in order to ascertain whether it relies on the electoral roll for determining the age of a candidate for membership to the Electoral College of Pakistan. Clause (1) of this Article, which is relevant in the present context, provides that "the persons enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time elect from amongst themselves a person who is not less than twenty‑five years of age, who shall be known as the Elector for that unit." It will be noticed that this clause prescribes two qualifications for a person who wishes to be elected as a member of the Electoral College; namely (a) that he must be enrolled on the electoral roll for the Electoral unit concerned and (h) should not be less than twenty‑five years of age. The question is whether there is anything in this Article to show that to the matter of determining whether a candidate is not less than twenty‑five years of age, reliance must necessarily be on the electoral roll and nothing else:

9. In support of his contention that even for the purpose of determining the age of an intending candidate the entry appearing in the electoral roll must be regarded as final, Mr. Valiant, the learned counsel for the petitioner, has placed reliance on Manzoor Aleem v. Zahoor Hussain (P L D 1965 Lah. 262). The relevant observations appear on page 265 of the report and are to the following effect:‑ "Proviso (iii) to subsection (3) of section 23 of the Act enacts that the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll. These provisions make it abundantly clear that persons on the electoral roll, i.e. those who are 21 years of age and are not of unsound mind and are residents of the electoral unit under section 10 of the Electoral College Act are entitled to elect from amongst themselves a person who is 25 years of age. This means that he must he 25 years of age on the day the nomination paper is filed. Since, however, the correctness of the entries in the electoral roll cannot be inquired into by the Returning Officer, his age should have been recorded as 25 years in the electoral roll also. Normally, corrections in the electoral roll are allowed upto a few days preceding the filing of nomination papers and since Article 158(1) also provides for election in accordance with law, the result is that the intending candidate to be elected as elector, should have been recorded as 25 in the electoral roll. The overall effect of these provisions is that a person should be recorded in the electoral roll as 25 and be of 25 years of age on the nomination day."

10. There is no doubt that in the case cited above their Lordships have referred to the finality which attaches to the entries in the electoral roll under proviso (iii) to subsection (3) of section 23 of the Act, yet it is significant that they have also gone on to state that not only should the person be recorded in the electoral roll as 25, but he must also be of 25 years of age on the nomination day. These concluding observations give an indication that their Lordships regarded the constitutional requirement as to age laid down in Article 158 as being something which must be fulfilled independently of the entries appearing in the electoral roll.

11. Mr. Valiani theta referred us to Ahsan Ali v. Z. A. Choudhary, Election Tribunal (P L D 1966 Dacca 41) in which their Lordships have expressed themselves as under:‑ "It is true that the tribunal sin make any order as it thinks fit, taut that order must be on a. ground which may be agitated before it trader the law. Precisely, therefore, the point raised is as to whether the tribunal can go into the question of age of an elected candidate in disposing of an election petition. We have ailed to find out any provision either in the Act or its the Rules that a candidate shall have to be of the age of 25 years. The requirement of the Constitution, however, will supervene 311 other legislative provisions and must in all circumstances be enforced, Regarding the qualification of age, all steps are to be taken at the different stages of the preparation of electoral roll. Provision has been made regarding disqualification on other grounds. Section 53 of the Act sets out a. number of disqualifications for 'being of 'being elected' as a member and section 54 provides a machinery other than the Tribunal to deal with them. Section 53 does not, however, mention the disqualification on the ground of being less than 25 years of age. It appears that provision has been made for enforcing qualification of age. It will, however, be noticed that outer qualifications bate been left to the care of `the thief Election Commissioner'. It will therefore be seers that when a person is disqualified from `being elected' on those grounds the matter does not go, to the Election Tribunal. obviously for the reason that Election Tribunal is concerned with election. Had it been the intention of the Legislature that the disqualification on the ground of age should go to fiat; Election Tribunal' it would have also burdened it with examination of disqualification on other grounds as set out in section 53 of the Act. Omission to make any mention of disqualification on the ground of age is probably due to elaborate provision relating to the entries in the electoral roll, Sufficient remedies having been made available for correction of the electoral roll, the age as shown in the same appears to have been taken as the conclusive evidence of age of a candidate and it is not contemplated in the Act that it should be reopened. According to entry in the electoral roll, the constitutional requirement has beep fulfilled. So, the question of disobedience to a command of the Constitution does not arise. Suffice it to say for that purpose the Election Tribunal has not been saddled with the responsibility of examining once again the question of age. We are of opinion that it has to proceed on the basis of the electoral roll."

12. Earlier on page 46 of the report their Lordships observed that Article 158(1) of the Constitution and clause (a) of subsection (3) of section 23 of the Act require that the Returning Officer mast apply his mind to the question of age and be satisfied that he has the requisite age qualification and to he satisfied in this behalf he has to refer to the entry of age. There is a column in Form III made under rule 8 of the Rules for showing age of an elector. In discharge of his duties under clause (a), subsection (3) of section 23, the Returning Officer has to refer to this column of the said form and to find out the age of the candidate. By reason of proviso (iii) of section 23, the Returning Officer cannot, however, go behind it disregarding the clear prohibition contained therein. The Legislature has advisedly made this provision. The Returning Officer while examining the nomination papers tans neither time nor the opportunity to reopen the entries of Electoral Roll."

13. With the greatest of respect try the learned Judges, who have delivered the judgment above cited, I find myself unable to agree with several of their observations. Although in the present case we are not directly dealing with the question of powers of an Election Tribunal, yet we may he permitted to observe that under rule 36 (1‑A) the Tribunal has been given the power tea declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or contravention of, any provision of the Act or the Rules. Now, the requirement as to the age of a candidate is laid down in section 21 of the Act read with Article 1580) of the Constitution and accordingly if a candidate is in fact below 25 years of age, it is clearly a case of a contravention of one of the basic provisions of the Act and the Constitution, with the result that the Election Tribunal would have the power to declare the election void by reason of the fact that rune of the contesting candidates was not qualified for being elected as a remember of the Electoral College. Further, section 53 of the Act deals with disqualifications, but the requirement of the minimum age of 25 years is not in the nature of a disqualification, but merely an essential qualification, As pointed out in G. Mohiuddin v. Election Tribunal (AIR 1959 All, 357), there is a clear distinction between a qualification and a disqualification. While dealing with section 19 of the (.Indian) Representation of the People Act, 1351, the learned Judges observed:‑‑‑ A person got the right to be enrolled or was qualified to be enrolled in an electoral roll if he was rot less than 21 years of age and if he had resided for the prescribed period in a particular constituency. A person's non‑residence for the prescribed period oz not attaining the age of 21 years is trot his disqualification for registration but amounts to his being not qualified to be registered. So long as one is not qualified, no question of disqualification arises," It seems to me, therefore, that, speaking with the greatest respect again, it is not correct to say that because the disqualification of being less than 25 years is not mentioned in section 53 of the Act, therefore, the Election Tribunal has no jurisdiction to go into this question: On the point of the finality attaching to the electoral roll, their Lordships of the East Pakistan High Court have, of course, placed reliance on proviso (iii) to subsection (3) of section 23 and their reason for doing so is that the Legislature has provided an elaborate machinery for ascertaining the age of the persons who are to be enrolled on the electoral roll. In coming to this conclusion their Lordships have, however, not taken note of the fact that all these provisions relating to the preparation of the electoral roll have reference only to the right to vote and not to the right to stand for election to the Electoral College for which two essential conditions have been laid down fn Article 158(1) of the Constitution, namely, that the person's name should be borne on the electoral roll of the Electoral Unit and he should not be less than 25 pears of age.

14. On behalf of the contesting respondents, Mr. Akhtar cited several cases before us in support of the contention that the finality attaching to the electoral roll must be confined only to the right to vote and cannot be extended to the question of qualification for being a candidate for election to the Electoral College. In Imtiaz Ali v. Ghulam Muhammad Butt (P L D 1958 S C 228), while dealing with the electoral rolls prepared under the Punjab District Board Election Rules, their Lordships observed:‑‑ "It is settled law that every person whose name is entered in the electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disquali fication." In G. Mohiuddin v. Election Tribunal to which reference has already been made in another context, it was held that the electoral roll is to be deemed final and conclusive as far as fulfilment of qualification of a voter is concerned, but it is not to be deemed final and conclusive by the Election Tribunal so far as the disqualifications attaching to such person are concerned. Again, in Brijendralal v. Jwalaprasad (A I R 1960 S C (Ind.) 1049), it was held "Section 19 read with section 36(7) (of the Representation of People Act) show that when a presumption is raised under section 36(7) it may mean prima facie that the person concerned is not less than 21 years of age and is ordinarily resident in that constituency, but for the validity of the nomination paper it has to be proved that the candidate has completed 25 years of age as required by Article 173 of the Constitution. Hence the presumption raised under section 36(7) would not be enough to justify the plea about the validity of the nomination paper because the said presumption only tends to show‑ that the person concerned has completed 21 years of age. It is clear that in regard to the persons between 21 to 25 years of age their names would be registered in the electoral roll and so they would be electors if otherwise qualified and yet they would not be entitled to stand for election to the State Legislature. Thus, a reference to the certified copy of the electoral roll would not in every case decisively show that the age of the candidate satisfied the test prescribed by Article 173 of the Constitution; in other words, the requirement about the completion of 25 years of age is outside the presumption under section 36(7) and that must be the reason why the prescribed nomination form requires that the candidate in signing the said form must make a declaration about the age."

15. It may be stated that section 36(7) of the (Indian) Representation of the People Act, 1951, to which reference has been made in the above quotation, is to the effect that a certified copy of the entry in ‑the electoral roll shall be conclusive indication of the fact that the person referred to in. that entry is an elector for that constituency.

16. The learned counsel for the respondent also placed reliance on Mahboob Ahmad v. Controlling Authority (P L D 1961 B J 15) and Ghulam Abbas v. Additional Commissioner, Khairpur (P L D 1965 Kar.625). In the first‑mentioned case, which arose under the Basic Democracies Order, 1959, it was held: "The conclusiveness which attaches to an electoral roll is only with regard to the right to vote enjoyed by a particular person whose name appears in the electoral roll; but with regard to no other matter. The electoral roll cannot be regarded as conclusive with regard to the individual entries mentioned therein when a question regarding any of those individual particulars arises in proceedings which are not connected with that election. To extend the scope of conclusiveness of an electoral roll beyond the question of the right to vote at the relevant election would mean going beyond the law under which the electoral, roll. is prepared and the purpose for which it is prepared. Thus the entry of a person's age in the electoral roll is not conclusive for any matter other than one concerning his right to vote."

17. In the case of Ghulam Abbas, the learned Judges endorsed the view expressed in the case of Diwan Mahboob Ahmad. It is true that on page 627 of the report an observation was made that under proviso (iii) to subsection (3) of section 23 of the Act "the Returning Officer who was to scrutinise the nomination paper had no power to go into the correctness or validity of any entry in the electoral roll, the idea being that where a final electoral roll has been prepared, the same should be taken for all intents and purposes to be conclusive"; yet on page 630 their Lordships reproduced the dictum in Diwan Mahboob Ahmad's case and stated their agreement with the view expressed therein. In other words, the finality which they accepted as attaching to the electoral roll was confined to the right' to vote. The case before their Lordships was also one in which the question involved merely related to the right to vote and not to the right to stand as a candidate for election to the Electoral College.

18. Reference was also made to two unreported cases, namely, Sana Ullah v. Election Tribunal, Gujrat, Writ Petition No, 584 of 1965, decided at Lahore on the 9th of August 1965 and Muhammad Ashiq v. Chief Election Commissioner writ Petition No. 1623 of 1964 decided at Lahore on the 8th of January 1965, In the first-mentioned case, the question of the age of a candidate was involved and the Court accepted that the correct age was other than the one entered in the electoral roll, but the question of the finality attaching under the proviso to section 23(3) was not discussed, However, the second mentioned case has some importance in view of the fact that the judgment of the Court in this case has been delivered by Mr. Justice S. A. Mahmood, who also wrote the leading judgment in P L D 1965 Lah.

262. That case was decided on the 10th of November 1964, whereas Writ Petition No. 1623 was decided, subsequently namely, on the 8th of January 1965. In this latter case, the question involved was again of the age of one of the contesting candidates. In the electoral roll his age was entered as above 25 years, but before their lordships a copy of the birth entry was produced which showed that this particular candidate was below the prescribed age. Their Lordships held that in view of the birth entry this candidate, named Muhammad Nawaz, was not eligible to be a candidate for the Electoral College and accordingly they accepted the writ petition as against him. it will be observed that their Lordships did not regard the entry of age appearing in the electoral roll as being conclusive with regard to the right of Muhammad Nawaz to stand as a candidate for election to the Electoral College. This Judgment delivered by Mr. Justice S. .A. Mahmood and concurred in by Mr. Justice Muhammad Akram, inclines me to think that even in the case of Manzoor Aleem Qureshi, the learned Judges were clearly thinking that the constitutional requirement of age has to be satisfied independently of the entry appearing in the electoral roll.

19. After giving my anxious consideration to the various legal and constitutional provisions noticed above and the submissions made by the learned counsel for both sides as well as by Mr. Ghulam Hussain Abbasi, who assisted the Court as amicus curiae, I have reached the conclusion that the finality, which attaches to the entries in the electoral roll must be confined to the object acid ape purpose for which the electoral roll is prepared, namely, to confer the right to vote on the basis of adult franchise as contained in Article 157 of the Constitution. The elaborate machinery provided in the Electoral College Act and the Rules for the preparation, finalisation and revision of the electoral roll is directed towards one end and one end alone, namely, to ascertain whether a person is or is not qualified to be enrolled as a voter. The electoral roll as prepared under these: provisions of law has no direct reference to the question of candidature for membership to the Electoral College. That question is dealt with in Article 158(1) of the Constitution and section 21 of the Act, which, in turn, has again reference to the relevant provision in the Constitution. Clause (1) of Article 158 clearly envisages two qualifications for a person who wishes to offer himself its a candidate for election to the Electoral College of Pakistan, namely, (a) that he must be enrolled on the electoral roll for as electoral unit, and (b) that he must not be less than 25 years of age. The entry of age appearing in the electoral roll would obviously be prima facie evidence in that behalf, but I cannot hold that finality attaches to it for the purposes of Article 158(1). The sole object of the entry of age appearing in the electoral roll is to show that the person is above 21 years on the qualifying date as required by Article 157 of the Constitution read with section 8 of the Act. The determination of the exact age of the person concerned is not contemplated by any provision of the Act or the Rules. It is true that there is a column in the form in which the electoral roll is prepared, relating to the age of the person enrolled, but this information has direct reference only to the right to vote and to nothing else.

20. It is true that section 23 of the Act deals with the question of scrutiny of nomination papers and it is in this context that proviso (iii) to subsection (3) of section 23 enjoins the Returning Officer not to enquire into the correctness or validity of any entry in the electoral roll, but, in my humble view, the injunction contained in this proviso cannot be interpreted in a 'manner which would confer a status and finality on the electoral roll which it was not intended to possess by those provisions of the Act and the Rules under which it has been prepared. The finality which, therefore, attaches to the electoral roll and the restraint which is placed on the Returning Officer under the third proviso to the third subsection of section 23 of the Electoral College Act must be interpreted to mean that the Returning Officer shall not question the right to vote of either the candidate or his proposer or seconder while scrutinising a nomination paper. If, however, an objection is raised ‑ regarding the fulfilment by a candidate of the requirement of age as prescribed by clause (1) of Article 158 of the Constitution, it is incumbent upon the Returning Officer to satisfy himself that the requirement is in fact fulfilled and in doing so he can go behind the entry of age appearing in the electoral roll.

21. The question referred `to the Full Beach is answered accordingly. QADEERUDDIN AHMED, J.‑‑I have greatly benefitted by reading the judgment written by my learned brother, S. Anwarul Haq, J.; in which he has put together all those ideas which were used by counsel for the parties. I have now before me an eloquent exposition of the case in support of the opinion that the entry relating to a person's age in the electoral roll prepared under the Electoral College Act, 1964 is not final as to his age as a candidate. Apart from the lucidity and perspicuity of the judgment, which handicaps me. I feel further handicapped because of the note which appears on a slip of paper that is attached to it, in the handwriting of my learned brother, Wahiduddin Ahmed, J., as follows:‑‑ "I agree, Place it for consideration before Qadeeruddin Ahmed, J." I could expect this result because both the learned Judges had expressed the same opinion before the formation of this Full Bench in Mahboob Ahmad v. Controlling Authority and Ghulam Abbas v. Additional Commissioner, Khairpur and because I felt during the course of the arguments that were addressed to this Full Bench that those who. supported the contrary view had failed to convince my learned brothers. I regret to have to disagree with them, who are two of the most learned Judges of this Court, but I propose to express the contrary view particularly because I am, with great respect, in disagreement with their Lordships' approach to the problem of interpretation. This aspect, to my mind, is more important than even the actual interpretation that has been placed upon the language of the statute.

2. I am grateful to S. Anwarul Haq, J., for embodying in his judgment the references and quotations that were made and used by both sides. This saves me a good deal of work. but in order to make this order essentially self‑contained, I take the liberty of explaining the problem again in a fern words, then reproducing the question which has been referred to this Full Bench and thereafter summarising the arguments of the parties. This will enable me to explain the difference in my approach to the subject and will perhaps facilitate the presentation of my point of view.

3. The problem which confronted the Division Bench that has made this reference was that the petitioner objected to the qualification of the respondent as a candidate on the ground that he was shown in the Electoral Roll to be below the minimum age of 25 years and contended that the entry could not be questioned during the serutiny of his nomination paper by the Returning Officer. The respondent's name was entered as a voter at Serial No. 140 and his age was shown to be 23 years. The respondent met the objection by arguing that the entry was made only to prove his qualification as a voter and was final as such but that it was not so in respect of his qualification as a candidate.

4. The question which has been referred to this Bench is as follows:‑ "Whether in view of proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1.964, the entry relating to a person's age in the electoral roll of the unit concerned is final in the matter and his candidature for election to the electoral college of Pakistan under Article 158 of the Constitution, or whether it is open to a Returning Officer for deciding this question to go behind the entry appearing in the relevant electoral roll on an objection being taken in this behalf."

5. The arguments that were advanced in favour of the petitioner's view ate as under:‑ (1) An elaborate procedure is laid down in the Electoral College Act, 1964, as well as the Electoral College Rules, 1964, in accordance with which the electoral roll is prepared containing a specific column in which is entered the age of the voters from whom the members of the electoral college are to be elected. The checks and counter‑checks which have beta provided for making and correcting the entries exclude the necessity of their further scrutiny by the Returning Officer who is expressly debarred, by virtue of proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1964, from enquiring‑ "into the correctness or validity of any entry in the electoral roll" while scrutinising the nomination of a candidate. (2) No other machinery has been provided for ascertaining the age of a candidate. Article 158 of the Constitution prescribes the minimum age of a candidate to be 25 years. The absence of any other machinery and the fixation of the minimum age of 25 years by the Constitution taken together leave no doubt that the election of the members of the electoral college, which is required to be in accordance with law, is to be in accordance with no other law than that which is contained in the Electoral College Act, 1964. (3) The bar which has been created against the scrutiny of the entries by the Returning Officer is contained in proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1964 and is emphatic as well as unambiguous. The intention of the Legislature thus expressed cannot be tempered with in the name of interpretation.

6. As against the above contentions, the arguments which have been advanced in favour of the point of view of the respondent are as follows:‑ (1) Articles 155, 156 and 157 of the Constitution lay down the basic law for conferring franchise on the citizens of Pakistan. In pursuance of them the Electoral College Act, 1964, was enacted. Chapters III and IV of it contain sections 4 to 13, which lay down the method by which the territorial units are created and electoral rolls are prepared. The Electoral College Rules have been f tamed under section 86 of the Act "for carrying out the purposes of the Act," Rules 3 to 24 contain the provisions in respect of the conferment of franchise. These sections and rules show that their object is simply to create territorial units and to provide an authentic list of voters. The electoral roll so prepared is not intended to serve as a list from which the qualification of voters as candidate may be ascertained. (2) Article 158 of the Constitution lays down that "persons enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time, elect from amongst themselves a person who is not less than 25 years of age." In terms of this provision the persons enrolled on the electoral roll have to elect from amongst themselves those who are not less than 25 years of age. This qualification of age is independent of the entry of their names in the electoral roll as voters. The two capacities are different and. not wholly inter‑dependent; therefore, the question; whether a voter is in respect of his age qualified to be a candidate, is to be decided independently of the mere fact that his name is enrolled as a voter. (3) The provisions which relate "to the preparation of the electoral rolls have reference only to the right to vote and not to the right to stand for election to the electoral college". "To extend the scope of conclusiveness of an electoral roll beyond the scope of the right to vote at the relevant election would mean going beyond the law under which the electoral roll is prepared and the purpose for which it is prepared. Thus the entry of a person's age in the electoral roll is not conclusive for only matter other than one concerning his right to vote." See in this connection paragraph 16 of the judgment written by S. Anwarul Haq, J.

7. The learned Judge has made some concession in favour of the evidentiary value of the age that is entered in the electoral roll for purposes of ascertaining the voters qualification as candidates. He has observed as follows:‑ "The entry of age appearing in the electoral roll would obviously be prima facie evidence in that behalf, but I cannot hold that finality attaches to it for purposes of Article 158(1)." The above observation recognises the age entered in the electoral roll to be relevant for determining the qualification of the voters as candidates, bat there is no explanation in it as to why it is relevant and why not final if relevant.

8. The learned Judge has given answers to two arguments which were advanced on behalf of the petitioner. First, he has observed that‑ "It is true that there is a column in the form in which the electoral roll is prepared relating to the age of the person enrolled, (Age is mentioned in Forms III, IV and V which are prepared under rules 8 and 10 of the Electoral. Colle.8e Rules) but this information has direct reference only‑to‑the right to vote and nothing else." Secondly, he has observed as under:‑ It is true that section 23 of the Act deals with the question of scrutiny of nomination papers (of candidates) and it is in this context that proviso (iii) to subsection (3) of section 23 enjoins the Returning Officer not to enquire into the correctness or validity of entry in the electoral roll ; but in my humble view the injunction contained in this proviso cannot be interpreted is a manner which would confer a status and finality on the electoral roll which it was not intended to possess by this provision of the Act and the Rules under which it has been prepared.

9. The above quotations are important because they contain snore or less the entire rationale of the view which has been expounded in the judgment. In the first quotation the words‑ "direct reference . . . . . and nothing else" are noteworty and in the second quotation the words‑‑ "finality . . . . , it was not intended to possess" convey the central idea of the argument. They, to my mind, disclose and I say so with utmost respect, two major weak points is the structure of the argument, because "direct" is not the antithesis of "nothing else" and the "intended" object of a law cannot be inferred otherwise than from clear words of the statute. To my mind the unambiguous language of the Act does away with‑ the distinction between direct and indirect. It make the entry of the age .in the electoral roll serviceable firstly for the purpose of discovering the qualified voters and secondly for the purpose of discovering those of them who possess the qualification of age for being candidates. It serves both purposes but necessarily, at different states of the proceedings of election. Ii is final at the time of the scrutiny of nomination papers because the language of the taw makes it so unambiguously.

10. I do not say that it is final at all stages because in these proceedings we are not concerned with the scope of enquiries at all levels: Being concerned with the scope of enquiry by the Returning Officer into the age of a candidate at the time of scrutinising his nomination paper, I express no opinion about the view taken by S. Anwarul Haq; J., in paragraph 13 of his judgment with respect to the powers of the Election Tribunal.

11. As I emphasize that the language of Proviso (iii) to subsection (3.) of section 23 of the Electoral College Act, 1964 is plain and admits of one meaning only. I feel that my argument is strengthened by the fact that there is no suggestion in the judgment of my learned brother that there is any ambiguity or dubiousness in the relevant expression. None of the learned counsel who appeared before the `Full Bench made such a suggestion and there is no such suggestion in any of the judgments to which reference has been made. No suggestion was made during the proceedings before us that candidates were misled into omitting to get corrected at the proper time a the entry of their age in the electoral roll on the ground, that the law created the impression that the entry had no effect on their qualification as such. This could not have happened even according to the judgment of S. Anwarul Haq, J., because the entry constituted prima facie evidence for, this purpose. If the language is 'plain and admits of one meaning only, and if the entry is relevant for the purpose of determining the age of a candidate, then the strongest pillar that is yet left to support the view that the entry of age is open to scrutiny by the Returning Officer is that the electoral roll is prepared solely or primarily with the object of making available a list of voters only. There is not much strength in this support because the entries made in the electoral roll could and have been made by law to serve more purposes than one. The manner in which this could and has been done is explained below.

12. No doubt, ordinarily the purpose of an electoral roll is to provide an authentic list of voter, but supposing a warning is added in the provisions of law (in pursuance of which the, electoral roll is prepared) to the effect that the age entered in they roll will be used for determining the qualifications of candidates also, will then the argument founded on the purpose of the roll still hold good? To my mind, the Electoral College Act, 1964, to terms of Chapter IV of which the electoral roll in question was prepared, contains such warning because it is laid down in Proviso (iii) to subsection (3) of section 23 of Chapter V of that Act that while scrutinising the nomination papers of candidates, the Returning Officer shall not enquire info the correctness or validity of any entry in the electoral roll. In the presence of this warning, the argument does not sound satisfactory that merely because electoral rolls are generally prepared for providing a list of qualified voters, the electoral roll in question should, for that reason, be taken to have been prepared with that sole purpose only. The warning has been so abundantly clear in this Act that, as noted above, no candidate has yet complained that he was misled into omitting to object to the entry of his own age or that of any other entrant; nor has any candidate complained that for such a reason he omitted to mention his own correct age when he applied in Form IV for the inclusion of his name in the rolls, or omitted to‑mention the correct age of any other candidate when he objected to the inclusion of another candidate's name by submitting Form V. The intention with which entries were made in the electoral roll is to be gathered not only from Chapters III and IV of the Electoral College Act, 1964 but equally well from the provisions of section 23 of the Act which occurs in Chapter V of it. If I am right in this view, then the argument that the electoral roll was prepared merely to provide a list of qualified voters it contradicted by the provisions of the law themselves.

13. Article 158(1) of the Constitution has been used t support the view that the age of a candidate must be at least 25 years and that in this respect the constitutional provision is not dependent on the electoral roll in contrast to the provision of the constitution "hat every person enrolled on the electoral roll is or "may be" an "elector". The relevant provision is as follows:‑ "The persons enrolled on the electoral roll for an electoral unit shall, in accordance with law, from time to time, elect from amongst themselves a person who is not less than 25 years of age, who shall be known as the elector for that unit." Thus, it was argued that the qualification of a voter as to iris age can be constitutionally taken to have been satisfied if he is enrolled on the electoral roll; but it is not so with respect to the qualification of a candidate as to his age. He must be 25 year of age in addition to having been enrolled on the electoral roll. This absolute necessity of the qualifying age for a candidate, it was contended, will remain unsatisfied if owing to an erroneous entry of his age he becomes a members of the electoral college in contravention of the constitutionally provided qualification. From this point of view also, it was urged, the intention of the law should be taken to be that the Returning Officer is competent, in spite of Proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1964, to be empowered to enquire into the correctness of the entry of the age of a candidate. This argument presupposes that if the Returning Officer makes the enquiry, then the conclusion at which he would arrive would be absolutely correct. But, I submit, there is no warrant for such a conclusion because every enquiry has its own limitations, whereas arrival at an absolutely correct conclusion needs freedom from all limitations. Indeed, there are jurists who think that legal enquiry is be set by a characteristically defective argument, H. L. A. Hart, Professor of Jurisprudence, University of Oxford, has observed in his Introduction to "The Idea of Justice and the Problem of Argument" by Ch. Perelman, Professor of Logic and Ethics, University of Brussels, as follows: "Legal reasoning characteristically depends on precedent and analogy and makes an appeal less to universally logical principles than to certain basic assumptions peculiar to the lawyer; it therefore offers the clearest and perhaps most instructive example of modes of persuasion which are rational and yet not in the logical sense conclusive." There is little reason to believe that error can be eliminated to such a degree as to make the satisfaction of the constitutional requirement of age absolutely certain. By the same token the result of an enquiry made earlier under section 8 of the Electoral College Act, 1964 may be in truth as satisfactory as an enquiry held by the Returning Officer under section 23 of the Act.

14. There is another defect in the argument that was built on Article 158(1) of the Constitution. It is that the distinction that has been noted in the Article as to the sufficiency of a person's enrolment in the electoral roll for purposes of his qualification as a voter and insufficiency of such enrolment for purposes of his candidature has been taken to lead to the conclusion that wrongly entered qualifying age of a voter in the electoral roll is constitutionally good enough but wrongly entered qualifying age of a candidate cannot be acceptable. This distinction has nothing to do with this conclusion. On the contrary, it stems from the fact that every person enrolled as a qualified voter cannot be a qualified candidate simply because their qualifications are different. The qualifying age of a vote in terms of Article 157(a) of the Constitution is 21 years and that of a candidate in terms of Article 158(1) is 25 years. Both of them are equally authoritative because the Constitution has provided them. It is no disparagement of the high authority of the Constitution that the ascertainment of the qualification cannot be treated as perpetually open; therefore, it has been treated by the law as closed at a certain stage.

15. The emphasis which has been laid by S. Anwarul Haq, J., on the purpose of the electoral roll appears to be intended to convey the idea that the age which is entered for one purpose should not be used for another one because the person concerned could not have concentrated his attention on its correctness for the other purpose. According to this argument, a person who is thinking of the qualifying age of a voter would not care for the correctness of that age as a qualification for candidature. This view is partly based on the presumption that there is little change of knowledge of correct age unconnected with some specific purpose; but the forms which are to be filled up, as well as the electoral roll mention "age" without reference to 21 years or 25 years and anybody who fills them or reads them is expected to write in theta or to discover from them the actual ago of a person. No body has two or three dates of both or several lengths of his age and nobody is expected to declare a false age. The forms and the electoral roll must thus contain the actual age whatever the purpose for which it may be used; therefore, the purpose of the electoral roll, as a general rule, at least, is not good excuse for whittling down the importance of the age the is entered on the roll.

16. I have briefly dealt with the argument that was founded on Article 158(1) of the Constitution as to the requirement of age as well as with the argument that was based on the intention and the purpose of the, preparation of electoral rolls under Chapter IV, of the Electoral College, Act, 1964. But the fundamental and basic reason for my view, that the Returning Officer has no authority to enquire into the correctness of the age of a candidate that is entered on the electoral roll, is the unambiguous language, of Proviso (iii) to subsection (3), of section 23 of the Electoral College Act 1964. In terms of it‑‑ "The Returning Officer shall not enquire (while scrutinising the nomination papers of candidates) into the correctness or validity of any entry in the electoral roll." I submit that the general purpose of the preparation of electoral rolls is no justification for violating the above language. Such justification strikes me as objectionable in principle because it is more in the nature of criticism of law then its interpretation. Supposing for the sake of argument that the Legislature ought not to have made such a provision. It is still not the role of an interpreter to change a supposedly wrong law by correcting it. Interpretation becomes criticism if the interpreter chooses to apply different values to a provision than those which the law giver has applied. In fact, the interpreter should withdraw from the scene as soon as the conclusion arrived at is that the language admits but of one meaning' because he has, no part to play in such circumstances. What I very humbly consider to be the difference in my approach to the problem of interpretation is that I find myself unable to presume that the lazy could not ‑have intended what it has in unambiguous language laid down merely because the course which it has prescribed is not that . . . . . which is generally adopted and according to some is not ore that ought to be adopted.

17. The above difference in my approach naturally strikes me as self‑evidently correct and there is no dearth of authority that can be cited in support of it. For the sake of brevity I quote from the 14th Edition (1962) of Maxwell's Interpretation of Statutes only. The following observations appear in it on page 2; "If the words of the statute are in themselves precise and unambiguous no more 'is necessary than to expound those word' in their natural and ordinary sense, the words themselves in such case best declaring the intention of the Legislature." Again, on the same page: "If there is one rule of construction for statutes and other documents, it is that you must not imply anything in them which is inconsistent with the words expressly used." Further, on pages 4 and 5: "When the language is not only plain but admits of but one meaning, the task of interpretation can hardly be said to arise. It is not allowable, says Vattel, to interpret what has no need of interpretation . . . . . Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the Legislature, it must be enforced, even though it be absurd or mischievous the words cannot be construed, contrary to their meaning, as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy." In this case, as yet there has been no allegation of "unjust", "absurd" or "mischievous" consequences. Only a possibility of strange results has been obliquely suggested by saying that the purpose of the electoral roll was different from that of setting out the qualifying age of a candidate. As to this suggestion, the view of the House of Lords expressed in London Brick Co. v. Robinson (1943 A C 341), may be quoted as summarised in Maxwell:‑ "So, when it was argued with special reference to Maxwell that with regard to the general intention of the Act the Court should add to the words `if the workman leaves a widow' the gloss 'who is claiming compensation under the Act,' in spite of 'strange consequences' and 'results which . . . . . seem surprising' the House of Lords declined to vary words not in themselves obscure or ambiguous."

18. A warning is included in the said book on the authority of Kirkness v. John Hudson & Co. Ltd. (1955 A C 696), and Ormand Investment Co. Ltd. v. Betts (1928 A C 143), that words and phrases of &I statute are not to be treated as ambiguous merely because a different Judges have placed different meanings upon them. It is as under:‑ "Moreover, the mere fact that different judges place a different meaning upon words or phrases in a statute does not mean that the words or phrases are necessarily ambiguous; each member of an appellate tribunal must first ask himself whether the‑words are clear or not.'' I respectfully agree with the above view and consider it unnecessary to review the judgments in which Proviso (iii) to subsection (3) of section 23 of the Electoral College Act, 1964 has been interpreted. I do not do sop because in one of them any ambiguity of the provision' has been suggested, much less indicated.

19. If the meaning of a provision of law is clear then the consideration as to whether it is reasonable or not and should b taken to be one which ought or ought not to have been made is in our system of law, in consistent with the office of a Judge because a Judge can neither question the wisdom of the Legislature nor assume the role of a reformer of law. In the words of Prof. Perelman, in the above‑mentioned book, Justice . . . . .. "consists in observing a rule which lays down the obligation to treat in a certain way all persons who belong to a given category." The true obligation for observing such a rule is the honour in which the society holds the norms which is the source of the obligation and to which the society emotionally adheres. The obligation does not change, nor is it mitigated merely because the Judge is in his kindness inclined to act otherwise. There is charity implicit in the view that the age of a person primarily given to establish hi.; qualification as a voter ought not be used for any other purpose because it may work hardship, but in the present context of unambiguous law this charitable inclination is not in conformity with justice. As charity is opposed to law, it is opposed to justice also. In the words of Prof Perelman. "`Charity is the virtue most directly opposed to justice. It can be exercised spontaneously, without calculation or preliminary reflection. Its aim is to relieve suffering, whether it may be, regardless of any other circumstances. Charity is symbolised by the white‑veiled sister moving from one wounded man to another and finding for each the soothing remedy, the comforting word. She is not concerned with the merits of any of them nor with the severeity of their injuries. Men are in pain and they must be helped, without restriction and without reservation. The ideal of charity is unconditional and constitutes a categorical imperative. It is universal and is limited neither by rules, nor by conditions, nor by words. Charity is instinctive, direct, not open to discussion. There is no agreement on formulas of charity, because charity has no need of formulas to express itself. It is a stranger not only to any conception of system, but even to any form of reasoning. It dispenses with any discursive element." Whereas: "Justice, on the contrary, is inconceivable, without rules. Justice is fidelity to rule, obedience to system. It can do without emotion or enthusiasm. We think of. it as of a cold and severe old man, weighing, calculating, measuring. Nothing can be less spontaneous than justice. The individual is nothing for it: it must see only a member of a class. All that is individual, spontaneous, emotional, the administration of justice should do its best to disregard. It cannot love, for it to favouritism is forbidden. Its attachment can be the result only of esteem, of careful evaluation. It must be strictly calculated, measured, proportion. Justice cannot be instinctive: it is subject to rules, conditions, qualifications, The obligation it imposed is conditional, hypothetical for the way one will act depends on the category to which the subject of action belongs. The administration of justice postulates reflection, discrement, judgment, reasoning. In this sense, justice is a rational virtue, the manifestation of reason in action." Charity enters the process of legal dispensation of justice only to cover up the contradictions of legal norms and can be welcomed arbiter in such a state of affairs provided the positive law does not push it out.

20. In our system of law it is for the Legislature to discover the correct norms and to frame rules for their application. The duty of the Judge is to discover which rule applies to which set of facts. This is doing justice in a given case‑it is the just act. Prof. Perelman has explained this process by saying: "At the level of the act the role of the Judge is to apply the law, such as it is, without any other consideration: it is not to modify the law in the name of conceptions which pass judgment on the rules themselves. His justice is static, not dynamic. The just, for him, is that which conforms to the law. He has not ask himself as a Judge, if the law conforms to justice." Let the Judge question the correctness of the norms or the justness of the rules which he has to administer and he becomes a critic of the law and remotely of the legal system itself rather than tae dispenser of justice for, in the words of the same Professor, "allowing the Judge to decide on the just rule amounts to assuming that there are standards other than those of the legal system from which he should draw inspiration in making his decisions, it amounts to subordinating positive law to the individual conscience of the Judge, to his political philosophy, to his religious convictions, to some kind of Natural Law; Opposition to the positive law inforce is perfectly admissible, but not on the part of the Judge in the exercise of his functions. Any, man may have the most respectable reasons for rebelling against the established orders the legislator alone has the legal power to change it." In writing this dissenting judgment I draw strength from the belief that whatever difficulties there may be existing in good and sound drafting of legal provisions, our system of law must be a supported and strengthened by the Judges by giving effect to clear provisions of law and the express intention of the Legislature uninfluenced by self‑inclinations however estimable their motives.

22. I hope that my answer to the question which has been referred by the Division Bench is now clearly inferable from the foregoing discussion. From the facts which are stated in paragraph 2 of the judgment of S. Anwarul Haq, J which form the background of the reference, it is clear that the question is confined to the interpretation of Proviso (iii) of subsection (3) of section 23 of the Electoral College Act, 1964. My answer to it is that the proviso mans exactly what its words are that is. "The Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll." WAHEEDUDDIN, J.‑I agreed with the conclusions reached by Anwar‑ul‑Haq, J. in accordance with the majority view the answer of the Full Bench to the question referred to it is that if an objection is raised regarding the fulfilment for a candidate of the requirement of age as prescribed by clause (l) of Article 153 of the Constitution it is incumbent upon the Returning Officer to satisfy himself that the requirement is in fact fulfilled and in doing so he can go behind the age appearing in the electoral roll. The case will now come up for final decision before the Division Bench dealing with election cases. K. B. A. Reference answered.