P L D 1961 (W (PLP)

A. R. CHANGE, J.‑

By this writ petition, Aman Ullah and, Allah Bakhsh petitioners have challenged the validity of the order of the Election Tribunal, Gujranwala, dated the 22nd of June, 1960, whereby the election of Aman Ullah petitioner as a member from Ward No. 9, of Union Committee. (E), Gujranwala, was declared to be void, and it was further ordered that new election for this seat be held.

2. The relevant facts giving rise to this petition are these the name of Amaa Ullah petitioner is recorded as an elector in the electoral roll of Ward No. 24 of Gujranwala at serial No.

64. The entry runs as follows: --‑ "Serial No. 64 Ward No. 24 Aman Ullah son of Fazal Karim 30 Gali Khatikan House No. 389." Ward No. 24 is not included in Union (E). In the electoral roll of Ward No. 9, Union (E), there is the following entry recorded at serial No. 106 :‑ "Serial No. 106 Ward No. 9 Aman Ullah Shah son of Fazal Ellahi 25 Masjid Maulvi Bashir Ahmad, Kabristan Road." Aman Ullah petitioner, while submitting his nomination paper for election from Ward No. 9, submitted an application along with the nomination paper that the aforesaid entry related to him and that his name and parentage were not correctly printed in the electoral roll. He, therefore, prayed that the printing errors existing in the electoral roll of Ward No. 9 with respect to his name and parentage may be corrected. The nomination paper was filed on the 4th of December, 1959. The scrutiny of the nomina tion papers took place before the Returning Officer on the 6th of December 1959, where objection was raised against the nomina tion paper of Aman Ullah on the ground that the person enrolled as an elector in Ward No. 9 was not Aman Ullah petitioner. The Returning Officer after considering the objection accepted the nomination paper of Aman Ullah holding that the error in the name and parentage in the electoral roll was only a printing error.

3. Thereafter, Aman Ullah petitioner, Muhammad Sharif, Malik Muhammad Bashir, Muhammad Yaqub, Inayat Ullah, Ishtiaq Ahmad and Muhammad Ismail Respondents Nos. 3 to 8 and Allah Bakhsh Petitioner No. 2 contested the election in Ward No. Union (E), and the votes secured by the contesting candidates were as follows: --‑ Arran Ullah Petitioner ... 406 Malik Muhammad Bashir, Respondent No. 4 ... 292 Muhammad Yaqub, Respondent No. 5 ... 280 Inayat Ullah, Respondent No. 6 ... 270 Muhammad Sharif, Respondent No., 3. ... 229 Ishtiaq Ahmad, Respondent No. 7 ... 52 Allah Bakhsh Petitioner No. 2 ... 6 Muhammad Ismail Respondent No. '8 0

4. That as only four persons were to be elected from Ward No. 9, Aman Ullah petitioner and respondents Malik Muhammad Bashir, Muhammad Yaqub and Inayat Ullah were declared elected. Thereafter, in a meeting of the members of the Union (E) held on the 28th of February 1960, Aman Ullah petitioner was unani mously elected Chairman of the Union Committee (E).

5. That in the meantime Inayat Ullah Mehr, Respondent No. 2, filed an election petition under Rule 55 of the West Pakistan Basic Democracies Election Rules, 1959, on the allegation that the name of Aman Ullah petitioner was not registered as an elector in any of the wards of the Basic Area viz. Union Committee, Gujranwala (E), and, consequently, he could not be nominated as a candidate. He prayed that the election of Aman Ullah petitioner as a member of Ward No. 9, Union (E), should be declared as void and in his place Muhammad Sharif. Respondent No. 3 who ranked 5th in the election, should be declared elected. The Election Tribunal, vide his order dated the 22nd of June 1960, came to the conclusion that Aman U11ah Shah son of Fazal Ellahi recorded at serial No. 106 in Ward No. 9 is not Aman Ullah son of Fazal Karim, recorded in Ward No. 24 at serial No.

64. It accordingly declared the election of Aman Ullah petitioner as void and further directed that new election for this seat be held. Being aggrieved by this order, Aman Ullah and Allah Bakhsh petitioners have filed this writ petition praying that the order of the Election Tribunal be quashed by issuing a writ of certiorari.

6. Dr. Nasim Hasan Shah, learned counsel for the petitioners has contended that the Election Tribunal had no jurisdiction to enquire into the question as to whether the nomination paper filed by Aman Ullah petitioner had been improperly accepted by the Returning Officer. He has drawn our attention to Rule 6 of the West Pakistan Basic Democracies Election Rules, which reads as follows :‑ "Electoral Rolls‑(1) For the purposes of first general elections to Basic Democracies the Collector shall adjust and re‑arrange the electoral rolls prepared under the Electoral Rolls Act, 1957, for all Basic Areas in the District in such manner as may be necessary to bring them in accordance with the require ments of the Order. The electoral rolls thus adjusted and re‑arranged shall be published on the appointed date by placing copies for inspection by the public at the office of the Returning Officer." It will be seen that the Electoral Rolls, which had been prepared under the Electoral Rolls Act, 1957, were adopted as Electoral Rolls for all Basic Areas and whereas Collector was empowered to adjust and re‑arrange the Electoral Rolls, he was not given any powers to correct any clerical or printing errors. Rule 8 (2) provides that any person whose name appears in the Electoral Roll of any ward of a Basic Area and who is otherwise qualified to stand as a candidate may be nominated as a candidate for election to the Basic Democracy from any ward of the Basic Area. Rule 13 empowers the Returning Officer to scrutinize the nomina tion papers of various candidates ward‑wise, and to consider the objections raised, and to accept or reject any nomination paper. Rule 14 (2), however, lays down that no nomination paper shall be rejected on the basis of any clerical or printing error, or on the ground of any defect which is not of substantial character. Under this rule, the Returning Officer may allow any such error or defect to be corrected or remedied forthwith.

7. Learned counsel for the petitioners has urged that the Returning Officer, after taking into consideration the objections raised against the nomination paper of Aman Ullah, had decided that it was only a printing error and, consequently, he had accepted the nomination paper. He has argued that as a matter of fact the Returning Officer had allowed the error or defect in the electoral roll itself' to be corrected. We are not prepared to accept this argument. Rule 14 (2) merely allows clerical o printing error or defect in the nomination paper itself to be corrected. In our opinion, it does not permit the correction of the electoral roll itself. If the Returning Officer was really satisfied that the entry at Serial No. 106 in the electoral roll of Ward No. 9 referred to Aman Ullah petitioner, then he could have allowed him. to correct the errors in the nomination paper in which he had given his name as Aman I111ah son of Fazal Karim. Learned counsel for the petitioners has further argued that section 18 (4) of the Basic Democracies Order, 1959, clearly lays down that the inclusion of a disqualified person in, or the omission of a qualified person from, the electoral roll, or any other defect in its preparation or maintenance, shall not by itself, vitiate any election to or any act or proceedings of any local council constituted on the basis of such electoral roll. He has, therefore, urged that in view of this provision, the Election Tribunal had no jurisdiction to go into this question at all. In our opinion, this argument is misconceived. Chapter I of Part II of Basic Democracies Order, 1959, deals with local areas; Chapter II relates to constitution of Local, Councils and Chapter III deals with composition of Local Councils and Chapter IV relates to election and appointments to Local Councils. Section 18 (4) is included in Chapter IV, which deals generally with the election to the Local Council. It has got nothing to do with the election of a member to the Local Council, which is dealt with separately under Rule 59, which enumerates the grounds for declaring the election .to be void. Clause (d) of Rule 59 provides that the Election Tribunal shall declare the election to be void if it is satisfied that the result of the election has been materially affected by the improper acceptance or rejection of any nomination paper. It, therefore, follows that the Election Tribunal is legal empowered to go into the question whether any nomination paper had been improperly accepted or rejected and if it is satisfied that the result of the election had been materially affected by the improper acceptance of any nomination paper, it shall declare the election to be void, we accordingly see no force in the contention of the learned counsel for the petitioners that the Election Tribunal has no jurisdiction to enquire into this question.

9. Learned counsel for the petitioners has next contended that the election petition filed by lnayat Ullah Mehr respondent did not contain a precise statement of the material facts, on which the petitioner relied, as required by Rule 54 (4) (a) of the Election Rules, inasmuch as it was not specifically alleged in the petition that the relevant entry in the electoral roll of Ward No. 9, Union (E), did not relate to Aman Ullah petitioner. It is true that in the election petition this point has not been specifically referred to, but it was alleged that Aman Ullah was registered as an elector in Ward No. 24 and was not registered as an elector in any of the wards of the Basic Area viz. the Union Committee, Guj Tan wala (E), from which he had been returned. The Election Tribunal had accordingly framed the issue as to whether Aman Ullah petitioner was an elector of Union Council (E) or not, and after carefully examining the evidence led' before it, it came to the conclusion that he was not recorded as an elector in Ward ‑No. 9, Union (E). We wish to point out that the learned counsel for the petitioners conceded before us that in his written statement filed by Aman Ullah before the Election Tribunal he had not raised this objection specifically: Similarly, this objection has not been "raised in this writ petition. We are satisfied that Aman Ullah petitioner was in no way prejudiced 'by the omission in the election petition of the fact that the entry in the electoral roll of Ward No. 9 did not relate to him. The point was covered by the issue framed by the Election Tribunal. There can be no doubt about it, that the result of the election bad been materially affected by the improper acceptance of the nomination paper of Aman Ullah petitioner.

10. Learned counsel for the petitioners has lastly argued that the Election Tribunal did not apply its mind to the question as to what order should have been passed in the circumstances of the case. He has urged that the Election Tribunal should have declared the election as a whole to be void, Rule 61 (1), which is the relevant rule on the point raised, reads as follows :‑ "Decision of the Election Tribunal‑ At the conclusion of the trial of an election petition, the Election Tribunal shall make an order

(a) dismissing the election. petition; or (b) declaring the election of the returned candidate to be void ; or (c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected ; or (d) declaring election as a whole to be void." We are clearly of the opinion that the Election Tribunal is empowered to pass any of the orders mentioned in this rule, as it deems fit. Learned counsel for the petitioners has not been able to point out any other rule placing any limitation on the discretion of the Election Tribunal. It is no doubt true that the Election. Tribunal cannot pass any of these orders arbitrarily or capriciously, but there can be no manner of doubt that the discretion in the matter has been left to the Election Tribunal to pass the necessary order.

11. In the present case, it appears that the other three successful candidates who had been returned from Ward No. 9 had not been impleaded before the Election Tribunal, therefore, the Election Tribunal could not have declared the election as a Whole to be void. Aman Ullah petitioner had not raised this objection in the written statement and it appears at no stage of the enquiry this objection was raised before the Election Tribunal. We agree that it being a multiple constituency it would have been, better if the Election Tribunal had declared the election as a whole to be void, but Aman Ullah petitioner is himself to blame, because having not raised this objection before the Tribunal, the Tribunal could not have passed that order without hearing the other returned candidates. Aman Ullah petitioner could have moved the Election Tribunal to implead them as a party to the election petition, but he did not care to do so at that stage. It is now too late for us to take notice of this objection in the exercise of our extraordinary writ jurisdiction.

12. For the reasons stated above, we see no force in this writ petition, which is hereby dismissed with costs. K. B. A. Petition dismissed.