1990 PLP 1432 (CLC)

(i) That no election petition w‑as maintainable on the ground that the name of the petitioner was wrongly entered in the voters list of Ward No.2 of Malir Cantonment as he was not qualified to be enrolled as a voter, in view of rule 66 of the Cantonment (Election and Election Petitions) Rules, 1979. (ii) That the finding of the Election Tribunal that the name of the petitioner was inserted in the electoral roll of Ward No.2 of Malir Cantonment Board on 9‑12‑1987 is based on no evidence and in any case the above finding was arrived at by ignoring the important pieces of evidence on record. After hearing the learned counsel for the parties at length we are of the view that no case is made out for the interference with the order of the Election Tribunal.

3. Under section 15 of the Cantonments Act, 1924 (hereinafter to be called as `the Act' only), every Cantonment is to be divided into Wards so that the number of such Wards is equal to the number of elected members of Board provided for that Cantonment in section 13‑A of the Act, excluding the number of seats, if any, reserved for women, workers, peasants and minorities under subsection (4) of section 13‑A ibid. Under section 15‑A of the Act for every such ward of the Cantonment a separate electoral roll, showing the names of Muslim voters qualified to vote at election to Ward, is to be prepared on the basis of the electoral rolls pertaining to that Cantonment, prepared under section 4 of the Electoral Rolls Act, 1974. Rule 6 of the Cantonment Election and Election Petitions Rules, 1979 (hereinafter to be called as "the Rules" only) also provides that the Board or where the Board is not constituted the Officer Commanding of the Station, shall in accordance with section 15‑A of the Act prepare by the 1st July of each year an electoral list for Muslim v o C r s drawn up on street to street basis and divided into separate parts for each ward as well as electoral roll for non‑Muslim voters drawn up on street to street basis for the Cantonment as a whole. Section 15‑B of the Act provides that a person who seeks election as a member of the Board must be 21 years of age on the 1st day of January preceding the election and his name appears for the time being on the electoral roll of the ward from which he is seeking his election as a member of the Board and is not subject to any of the disqualifications prescribed in subsection (2) of section 15‑B ibid. There is no contention in the present case that the petitioner suffered from any of the disqualfications prescribed/mentioned in subsection (2) of section 15‑B of the Act. The only point which was agitated before the Election Tribunal by respondent No. 1 in his election petition was, that the name of the petitioner did not appear in the electoral roll/list of Ward No.2, from where he sought his election as a member, on the cut off date, namely, 1st December 1987. It was urged before the Election Tribunal by respondent No.1 that the name of the petitioner was entered in the voters list of Ward No.2 on 9‑12‑1987 and as such he was not qualified to be elected from that Ward. It is an admitted position in the case that the date for holding of election in respect of Malir Cantonment was announced by the Government under rule 7 of the Rules on 1‑12‑1987 and as such the electoral rolls which could form the basis of that election was the list prepared on 1st of July, 1987 in accordance with rule 6 of the Rules. It is common ground between the parties that only those persons were entitled to take part in the election from Ward No.2 in the election held on 30‑12‑1987 whose names appeared in the voters list of Ward 2, on 1‑12‑1987. The Election Tribunal after going through the evidence on record reached the conclusion that the name of the petitioner was entered in the electoral list on 9‑12‑1987 and, therefore, he was not qualified to be candidate from Ward No.2, on the date he submitted his nomination paper. The contention of the learned counsel for the petitioner before us is that while arriving at the above conclusion the Election Tribunal failed to consider Annexure AA/8 which is on record and which according to the learned counsel clearly established that the name of the petitioner appeared in the list of voters of Ward No.2 of Malir Cantonment on 30‑11‑1987. The document annexure AA/8 relied upon by the learned cow‑sell for the petitioner is alleged to be an application made by the petitioner to the Registration Officer, exercising his option to retain the address of 23/F Gujrat Lane, Malir Cantonment, instead of 75‑C Cantt. Bazar Area, Malir Cantonment. However, a reading of the said document would show that it was addressed to the Returning Officer, Karachi (East) Karachi and it was stated therein that the applicant petitioner had made two applications for entering his name in the voters list of Cantonment with the addresses of 23/F Gujrat Lane, Malir and 75/C Cantt. Bazar, Malin It was further stated in that application that out of the above two applications the one. with the address of 75/C Cantt. Bazar, Malir may be cancelled while the other with the address of 23/F may be accepted. The learned counsel for the petitioner contended that this application was made on 30‑11‑1987 and was allowed on the same day. From a bare perusal of the document Annexure AA/8 it would appear that there were clear manipulations of dates on it. Below the signature of petitioner on the document the date is mentioned as 2‑12 while on the endorsement which the petitioner claimed was made by the Registration Officer, the date appeared to have been changed to 30‑11‑1987. Besides, the contents of the application AA‑8 clearly showed that it was made for the purpose of getting the name of petitioner entered in the voters list. As against the document AA/8, relied on by the petitioner, respondent No.1 alongwith his affidavit‑in‑evidence filed before the Tribunal submitted number of documents which established that the petitioner got his name entered in the voters list of Ward 2 with the address of 23/F Gujrat Lane, Malir on 9‑12‑1987. The relevant documents filed by respondent 2 before the Election Tribunal were AA‑4 to AA‑7 and AA‑9 to AA

16. From a careful examination of these documents it will appear that the petitioner first applied to Registration Officer on 29‑10‑1987 (AA‑5) for inclusion of his name on the address of 75‑C Cantt. Bazar, Malir Cantt. He again applied to Registration Officer on 4‑11‑1987 (AA‑6) for entering his name in the voters list with the address of House No.39, Shed No.18, Model Colony, Karachi. On 2 12‑1987, petitioner once again made application to Registration Officer (AA‑9) requesting that his address may be corrected as 75‑C, Cantt. Bazar and this application was granted on the same day as would appear from the order passed on his application (AA‑9). Extract from register of objections (AA‑7) and certificate of registration office (AA‑9). On 7‑12‑1987, the petitioner applied to Deputy Commissioner (East), with the request, that his name is entered at two places in the supplementary list which is under preparation and that instead of 75 C Cantt. Bazar which is the address of his father his name may be shown with the address of 116/C, Cantt. Bazar. The petitioner with his above application (AA 11) filed the tenancy agreement and his affidavits (AA‑12 and AA‑13). The Deputy Commissioner, East passed the following order on the application (AA 11): "S.T.M. For necessary action as per affidavit" Sd/". Again on 9‑12‑1987 the petitioner filed another application (AA‑14), to Deputy Commissioner (East) for change of address to 23‑F Gujrat Line on which the Deputy Commissioner and the R.O. passed their following orders respectively on 9‑12‑1987: "Sr. T.M. & Reg. Officer for necessary action as per rules. Sd. D.C. East. 9/12 "Second change of address in the voters list of Mr. Naseebullah s/o Amanullah is allowed. He wants that 23‑F Gujrat Line Malir Cantt. be mentioned as new address where he is living. S d. 9/12." The abovementioned documents clearly proved that the name of petitioner in the voters list of Ward 2 of Malir Cantt. was entered for the first time on 9‑12‑1987. The learned counsel for the petitioner made an attempt to argue before us that some of the documents referred to above were not genuine but from the statement of the petitioner which was recorded on oath before the Election Tribunal no such plea appears to have been taken before the Tribunal. The petitioner in his examination‑in‑chief before the Tribunal in fact made no reference to any of these documents. 1t is also worth mentioning that the official respondents in the election petition categorically denied in their respective written statements before the Election Tribunal that the name of petitioner was entered in the voters list on 31‑11‑1987 and specifically pleaded that the name of petitioner in Ward No.2 was entered only on 9‑12‑1987, but no effort was made by the petitioner to examine any of these respondents in support of his contention that he had made the application for entering his name in the voters list of Ward No.2 on 30‑11‑1987, which was allowed by the Registration Officer on that date. In the above state of evidence, the learned Election Tribunal rightly concluded that the name of the petitioner did not appear in the electoral list of Ward No.2 of Malir Cantonment on 1st December, 1987 and, therefore, he was not qualified A to be a candidate from that Ward in the election. The only other argument of the learned counsel for the petitioner which remains to be considered is that in view of rule 66 of the Cantonment (Election and Election Petitions) Rules, 1979 the Election Tribunal was not entitled to go into the question of validity of entries in .the electoral roll. The argument on the face of it is wholly misconceived. Rule 66 relied on by the petitioner reads as follows: "

66. Officer to whom the petition should be presented.‑‑A petition calling in question the validity of an election or the return of a particular candidate may be presented in writing to the District Judge of the District within which the election has been held (or where there is no District Judge, to such judicial officer as the Provincial Government may appoint in this behalf) within seven days after the date on which the result of the election was declared either by a person who was a candidate at the election or by not less than five persons entitled to vote at the said election: Provided that no such petition shall be presented on the ground either that the name of any person qualified to vote has been omitted from the electoral roll or that the name of any person not so qualified has been inserted in the roll:' The‑proviso to the above rules clearly state that a petition challenging the election shall not be entertained on the ground either that the name of any person qualified to be a voter has been omitted from the electoral roll or that the name of the person not qualified to be a voter has been entered in thee electoral roll. No such dispute was raised before the Election Tribunal by the respondent No. 1, who challenged the election of petitioner from Ward No.2 on the sole ground that the petitioner was qualified to contest the election from Ward No. 2 of Malir Cantonment as his name was not entered in the voters list of Ward No.2 on 1‑12‑1987 when the election programme was announced. Therefore, the dispute raised by respondent No.1 before the Tribunal related to qualification of petitioner as a candidate and not as a voter and as such the proviso to rule 66 was not attracted in the present case. No other contention was raised. There is no B merit in this petition, which is accordingly dismissed but we will maka no order as to costs. M.BA./N‑275/K Petition dismissed.