P L D 1965 (W (PLP)

(a) Electoral College Act (IV of 1964), S. 21 (1)

‑Words "duly qualified".--‑Refer to Art. 158 (1), Constitution of Pakistan (1962} and not to para. 1, Part II of Second Sch. to Basic Democracies Order, 1959‑Person being 25 of age on date of his nomination to electoral unit and also recorded as such in final electoral roll --Qualified to be elected as elector under Electorar College Act

Constitution of Pakistan (1962), Art. 158 (I)--‑Basic Democracies Order (18 of 1959), Second Sch., Part H, para. 1. (b) Electoral College Act (IV of 1964), S. 53 and Basic Democracies Order (18 of 1959), Second Sch., Part II, para. 2

Provisions not identical. (c) Basic Democracies Order (18 of 1959), Second Sch., Part II, para. 1

‑Provision governs election under Order‑

Not applicable in case of candidate seeking election under Electoral College Act, 1964‑

Electoral College Act (IV of 1964), S. 21 (1). JUDGMENT S. A. MAHMOOD, J.‑

Though the name of Zahur Hussain respondent No, 1 appeared in the draft electoral roll of Electoral Unit No. 435, village Bhaun, Tehsil Chakwal, District Jhelum recording his age as 26, he filed a declaration form showing his age as 25. and his name was added to electoral roll, so that he was mentioned twice as a voter in the same electoral roll. On the 15th of October 1964, the date fixed for the filing of nomination papers, Manzoor Aleem petitioner, as well as respondent No. 1, filed their nomination papers. At the time of scrutiny of the nomination papers, on the 19th of October 1964, the petitioner objected to the candidature of respondent No. 1 on the ground that on the 1st day of January preceding the election, i.e., on 1st January 1964, he was below 25 years of age. The objection was rejected and the nomination paper of respondent No. 1 was accepted. Against the acceptance of his nomination paper, the petitioner filed a writ petition in this Court under Article 98 (2) of the Constitution of Republic of Pakistan, which was admitted on the 29th of October 1964. Since then, in the election which has been held, the respondent No. 1 has been declared elected.

2. On behalf of the petitioner it is contended that as the respondent No. 1 was born on the 27th of September 1939, he was not 25 years of age on the 1st day of January 1964, the relevant date preceding the election, as provided in paragraph 1, Part II of the Second Schedule to the Basic Democracies Order, 1959, and he was ineligible to be a candidate for election to the Electoral College. Our attention, has been drawn in this connection to section 21 (1) of the Electoral College Act, 1964, which says 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 urged that the words `duly qualified' have reference to paragraph 1 of Part II of the Second Schedule to the Basic Democracies Order, 1959, because section 2 (25) of the Electoral College Act enacts 4 that "all words and expressions used but not defined in this Act and defined in the Basic Democracies Order, 1959, shall have the same meanings as in that Order"

3. On behalf of respondent No. 1, it is urged that the election in question is to the Electoral College of Pakistan as required by and for the purpose of Article 158 of the Constitution and in accordance with the provisions of the Electoral College Act, 1964 and not to a Basic Democracy and that paragraph 1, Part II of the Second Schedule to the Basic Democracies Order, 1959, has no application to the case. Since Article 158 (1) of the Constitution of the Republic of Pakistan 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 is argued that any person on the electoral roll, who is not less than 25 years of age, has a constitutional right to be elected as Elector for that unit to Electoral College, and that the constitutional right cannot be denied to him, if his name is on the electoral roll, and he is not less‑than 25 years of age on the day nomination papers are filed. It is urged that the words `duly qualified' have reference to Article 158 of the Constitution and not to the Basic Democracies Order, 1959. As the date of birth of respondent No. 1 is 27th September 1939, and as the nomination papers were to be filed on the 15th October 1964, it is argued that the respondent being 25 years of age on that date was qualified to bean Elector. It is also urged by way of preliminary objection that as under section 58 (1) of the Electoral College Act, no election shall be called in question except by an election petition under its subsection (2) and an election petition has not been filed, this petition is incompetent.

4. On the date of the preparation .of the final electoral roll, the date of the filing of the nomination papers and the date of their scrutiny, the petitioner was 25 years of age. The petitioner was seeking election as an Elector to the Electoral College. Article 156 of the present Constitution provides that an electoral roll shall, in accordance with law, be established and maintained for each electoral unit. Under Article 157, except as provided by law, any citizen‑ (a) who is not less than twenty‑one 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. Article 158 (1) already cited enacts that the persons enrolled on the roll shall, in accordance with law, which would, in this case be the Electoral College Act, 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. A plain reading of the Article makes it clear that the person to be elected as Elector has to be 25 years of age, when the persons enrolled on the electoral roll elect him from amongst themselves from time to time. Section 8 of the Electoral College Act provides for the preparation of a draft electoral roll containing the name of every citizen, who, on the qualifying date, is not less than 21 years of age. The qualifying date is the 1st day of May 1964. Under subsection (3), the Registration officer shall make such additions and modifications as may be required by any decision or any claim or objection, and may make corrections of such clerical or printing errors as may come to his notice. The making of the claims and objections is provided for in the Electoral College Rules, 1964. Under subsection (4) of section 8 [Electoral College Act], the Registration Officer shall publish in the prescribed manner the final electoral roll for an electoral unit and under subsection (5) an electoral roll may be amended and corrected from time to time in the prescribed manner so as to include the name of any person who has, since its preparation, become qualified to be enrolled thereon, or to delete the name bf‑any person who has died or has become disqualified for enrolment. Proviso (iii) to subsection (3) to 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 be 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 up to 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 e electoral roll as 25 and be of 25 years of age on the nomination day. The words "duly qualified" in section 21 (1) of the Electoral College Act have, reference in fact to Article 158 (1) of the Constitution and not to paragraph 1, Part II of the Second Schedule to the Basic Democracies Order, 1959, which govern elections under the Basic Democracies Order. The election iii' question is not an election under the Basic Democracies Order although the members, who have been elected, may ultimately become members of the Basic Democracies. There is also some difference between the provisions of the Basic Democracies Order and the Electoral College Act. The disqualifications in section 53 C of the Electoral College Act are not the same as provided in paragraph 2, Part 11 of the Second Schedule to the Basic Democracies Order. All that section 2 (25) of the Electoral College Act, 1964, enacts is that "all words and expressions used but not defined in this Act and defined in the Basic Democracies Order, 1959, shall have the same meanings as in that Order", but this is a definition clause and is not helpful in finding the date on which a person to be elected to an Electoral College shall be 25 years of age.

5. For the reasons given above, we hold that as the age of the petitioner was mentioned as 25 and 26 years of age in the final electoral roll and as he was 25 years of age on the date his nomination paper was filed, he was qualified to be elected as a D Elector from the electoral roll of the unit concerned to the Electoral College, as required by Article 158(1) of the Constitution of the Islamic Republic of Pakistan. In this aspect of the matter. we do not have to decide the preliminary objection raised by the learned counsel for the respondent. In the result, we dismiss this writ petition with costs. K. B. A. Petition dismissed.