P L D 1966 (W (PLP)

SAJJAD AHMAD, J.‑The petitioner, Zainul Abidin, who had unsuccessfully contested the election to electoral Unit No. 160, Peshawar City, challenged the election of his successful rival, respondent Muhammad Ashraf, by an election petition before the Election Tribunal, Peshawar, which was dismissed. Hence this writ petition.

2. The sole point on which the election petition was based, and which has been re‑agitated in the writ petition before us, is that the respondent was constitutionally disqualified to seek election as a voter for the electoral college, as he was not a citizen of Pakistan, being a displaced person from the occupied territory of Jammu and Kashmir. The learned Election Tribunal has rejected this plea on the ground that it was not open to the petitioner to question the validity of the entry in the electoral roll which shows the respondent as an elector in the electoral unit, at the stage of the election petition.

3. The petitioner has annexed with his writ petition certain documents in proof of his allegation that the respondent is in fact a refugee from Kashmir. We do not consider that there is any justification for us to institute an inquiry in writ jurisdiction as to whether the respondent derives his nationality from the State of Jammu and Kashmir and cannot claim to be a citizen of Pakistan to qualify himself for election to an electoral unit. In fact no inquiry is competent for the reason that under Article 158 of the Constitution, the entry of the respondent's name in the electoral roll for the electoral unit qualifies him as an elector for the electoral college. This Article reads 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 twenty five years of age, who shall be known as the Elector for that unit." The only qualification of a person for the purpose of electing an elector for a unit. according to this constitutional provision is that he should be enrolled on the electoral roll and that is all. Under Article 166 of the Constitution, an electoral roll has to be established and maintained for each electoral unit according to law. The relevant law for the preparation, completion and revision of the electoral roll has been provided in the Electoral College Act of 1964, and Chapter IV of that Act contains comprehensive provisions for that purpose. Section 8 of the aforesaid Act provides for the preparation of a draft electoral roll, containing the name of every citizen who, on the qualifying date, possesses the requisite qualifications, namely, that he is not less than twenty‑one years of age, is not of unsound mind and is or is deemed to be a resident of the electoral unit under section 10 of the Act. The draft electoral roll thus prepared has to be published together with a notice inviting claims and objections with respect thereto. Subsection (5) of section 8 provides for amendments and corrections in the electoral roll from time to time to include the name of any person who, since the preparation of the roll, had become qualified to be enrolled or to delete the name of any person who had become disqualified for enrolment. The electoral roll so prepared comes into force immediately upon its publication and remains in force until it is revised under section

12. The last‑named section requires that the electoral roll shall be revised annually in the prescribed manner with reference to the qualifying date and also gives powers to the Commissioner for revision of the electoral roll of any electoral unit at any time if for any reason he considers such revision to be necessary. Section 13 ensures the validity or continued operation of the electoral roll, even though it is not revised under section 12, and declares further that the electoral roll shall not be invalid by reason of any mis-description of the person enrolled or registered thereon or of omission of the name of any person entitled to be so enrolled or registered, or of inclusion of the name of any person not so entitled. Under Article 157 of the Constitution, to which reference was made by the learned counsel for the petitioner, it is only a citizen who, except as provided by law, shall be entitled to be enrolled on the electoral roll of the electoral unit. It would thus be clear from the provisions of the Constitution and of the Electoral College Act, mentioned above, that a person to be included in the electoral roll of a unit has essentially to be a citizen which means, according to the definition in Article 242 of the Constitution, the citizen of Pakistan.

4. The question whether a person is or is not a citizen for inclusion in the electoral roll is, however, an issue which has to be considered and determined at the time of the preparation of the electoral roll and the inclusion of a wrong person as a citizen is open to objection at that stage 'before the relevant authorities under the Electoral College Act. But once a person is entered in the electoral roll of an electoral unit, the matter stands concluded under Article 158 of the Constitution, already mentioned above, to qualify him as a voter for exercising his vote for election to the electoral college. The inclusion of his name in the electoral roll under that Article invests him with the requisite qualification its a voter for the electoral college and that is not open to challenge subsequently merely on the ground, even if it could be substantiated, that the entry in the electoral roll with regard to him, with the essential implied ingredient of being a citizen of Pakistan, was basically wrong. In the circumstances, this petition has to be dismissed; but we make no order as to costs. S. Q. Petition dismissed.