1969 PLP 868 (PLD)

(4) P L D 1966 Kar. 151 (5) P L D 1967 Lah. 68 It may be mentioned here that so far as the West Pakis tan High Court is concerned, the Full Bench case of P L 1) 1967 Kar. 104 now rules field although the competency of the Tribunal to enquire into the qualifying age of a candidate was not directly involved therein. the principal exposition of the contrary point of view is contained in J the case of P L D 1965 Dacca 41 wherein my esteemed brother A. S. Chowdhury, J. has observed as follows:‑ "It is true the Tribunal can make any order as it thinks fit but that order must be on a ground which may be agitated before it under the lave. 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 failed to find out any provision either in the Act or in the Rules that a candidate shall have to be of the age of 25 years. The requirement of the Constitution, however, will supervene all 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 or 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 disqualific ation on the ground of being less than 25 years of age. It appears that no provision has been made for enforcing qualification of age. It will, however, be noticed that other qualifications have been left to the case of `the Chief Election Commissioner'. It will therefore be seen that when a person is disqualified from `being elected' on those grounds the age 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 the Election Tribunal, it would have also burdened it with exami nation 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 the 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 reop.1ned. According to entry in the electoral roll, the constitutional requirement has been fulfilled. So, the question of disobedience to a command of the Constitution does riot 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, Rule 36 (1‑A) is very important. In effect it sets out the grounds on which the election of a returned candidate or the election as a whole can be declared void, but it makes no mention regarding qualification of a candidate as has been done in the statute relating to National 'and Provincial Assem blies election. Moreover, rule 36 (1‑A) provides that a Tribunal shall declare the election of a candidate to be void if it is satisfied that tae result of the election has been materially affected by reason of the failure of any person to comply with or the contravention of `any provision of Act of these Rules.' Procedure laid down in regard to the prepara tion of an electoral roll has been followed, but it is claimed that in fact there has been a mistake in. an entry, We have already seen that there are sufficient remedies available in the Act for correcting the errors, if no challenge is made to these entries at an appropriate stage, in the eye of law, there is no mistake or error in the entry. It will have to be remembered that this electoral roll is prepared on the basis of adult franchise and in the case of such a roll, a finality has to be drawn at some stage. On a comparison of the relevant provisions referred to above, we are confirmed is our opinion that the Tribunal in this case under the Electoral College Act has no jurisdiction to declare an election void on the ground that the returned candidate did not have the requisite age qualification on the date of nomination. Had the Legislature intended to confer such a power there was nothing to prevent it from making a clear provision as has been done in the above Acts governing the similar situations. We are, therefore, of opinion that the contention of Mr. Islam learned counsel for the petitioner, is of substance and the Election Tribunal acted without jurisdiction in deciding the question of acre of the petitioner disregard ing the relevant entry on the electoral roll and on this ground alone the impugned order must be set aside. We have not been unmindful of the provisions of Article 158 (1) of the Constitution which is as follows:‑ `(1) The persons enrolled on the electoral roll for an electorate 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.' This is a clear mandate of the Constitution, that a. person who is less than 25 years of age cannot be a member of the Electoral College. But in the case of the petitioner, the electo ral roll shows that he is 27 years. We have merely reached the conclusion that the Election Tribunal is not the forum for the enforcement of the constitutional mandate. There was sufficient opportunity for the petitioner under the Act to move the appropriate authorities as referred to above for correction of age if it could be established that there was in fact, a mistake in the relevant entry. It is not necessary for us to examine if there is any other remedy available under the law. It is sufficient for the disposal of this petition to say that this Tribunal has no jurisdiction to go into this question. On a reference to the National and Provincial Assemblies (Elections) Act, we find that the Tribunal formed thereunder has been treated by the Legislature on an altogether different level and has been given power to go into all relevant questions relating to elections to the said Assemblies but the Tribunal under the Electoral College Act exercises limited jurisdiction. This must be so. The Tribunal under the Electoral College Act as provided in rule 36 is to hold a summary enquiry, whereas the Tribunal for the Assembly elections must hold regular and elaborate trial and complete and adequate provisions have been made in this behalf." This view finds support more or less from the decisions in the cases of Manzoor Aleem Qureshi v. Zahur Hussain (P L D 1265 Lah. 262), Ghulam Abbas v. The Additional Commissioner and Election Tribunal, Khairpur Mirs (P L D 1965 Kar. 625), Ghulam Rasool v. Deputy Com missioner and Election Tribunal, Nawabshah (P L D 1966 Kar. 151) and Ghulam Qadir v. Ahmad Shafi (P L D 1967 Lah. 68). On a careful analysis of the reasons given in these five deci sions and the cases relied on thereunder it will be noticed that they all lead to this conclusion only, namely, that as long as a person's name appears in the Electoral Roll as a voter, he is entitled to vote no matter whether he actually did possess the requisite qualification to be a voter or not, and that the Tribunal is not competent to challenge the validity of this entry as a voter in the electoral roll. With due deference to the learned Judges concerned it seems to me that the inference that the Tribunal is not competent to enquire into the qualification of a candidate with reference to Article 158 of the Constitution does not flow from the propositions and the reasons given by them and which preceded the inference. All the reasons merely pointed to the necessity of making the electoral roll final and conclusive as to the right of a person to vote, for that seems to me to be the precise and only object of the l5lectoral Roll and the finality is attached to such entry only. The Act authorises the Registra tion Officer to prepare for each electoral unit in the prescribed manner a draft electoral roll containing the name of every citizen who on the qualifying date ‑‑ (a) is not less than 21 years of age (b) is not of unsound mind (c) is, or is deemed under section 10 to be resident of the electoral unit. The Act itself nowhere enjoins on the Registration Officer to ascertain and record the correct age of a voter for a purpose other than his right to be enrolled as a voter. Chapter IV of the Act which deals with the preparation of electoral rolls nowhere gives the slightest indication to the Registration Officer that he must record the age of a voter with an eye to his qualifying age as a candidate as prescribed in Article 158 of the Constitution. Although a voter may approach the Registration Officer for correction of any error creeping into any entry concerning him the scope of the Act read with the Rules in my opinion comprises of two things only, namely, claim for inclusion of a name as a voter, and objection to the inclusion of any person enrolled as a voter irrespective of the fact that rule 10 read with Forms IV and V seems to prescribed a column as to age of the person applying for inclusion and mentions age as an entry which may be objected‑to. The operative part of the Rules is rules 12 and

13. The former deals with the manner of making a claim for inclusion of a person's name as a voter, and the latter with the manner of objecting to the inclusion of a person's name as a voter. This view finds support from the provisions of sections 13 (2) and 13 (A) of the Act, which are as follows:‑ "

13. Validity of electoral rolls, etc., not affected by failure to revise or by reason of any mistake :‑ (2) An electoral roll shall not be invalid by reason of any misdescription of a 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 entitled. 13‑A. Commissioner power to include a name in an electoral roll.‑Notwithstanding anything contained in this Chapter, the Commissioner may, at any time, whether before or after the publication of the final electoral roll under sub section (4) of section 8, order the inclusion in an electoral roll of the name of any person qualified to be enrolled on such electoral roll and such name shall, from the date of such order, form part of that electoral roll." It may be mentioned that section 13‑A was inserted in the Act by the Electoral College (Amendment) Ordinance, 1964 which was promulgated on the 10/14‑8‑

64. It is pointed out that if in pursuance of the provisions of section 13‑A an amendment is made by the Commissioner at the eleventh hour. there would hardly be any time and opportunity to object to a voter's age or ask for its correction inasmuch as rule 22 (3) would prevent the entertainment of an application relating to a unit which had been called upon to elect its representatives and before a member of the electoral college had been elected. Rules 10 to 13 seem to apply only to a claim or objection in respect of the draft electoral roll and, therefore, they are not attracted to an Electoral Roll finally published. Rule 22 also clearly indicates that the Registration Officer is concerned only with the entries of the person as a voter and not as a candidate and although any entry in the roll may be amended, the real purpose of the amendment is to include or exclude a name from the roll. This conclusion seems evident if rule 22 is read with section 8 (5) of the Act. Rule 22 (3) read with rule 13‑A clearly shows that even though there would be no opportunity for correction or inclusion, the mere inclusion of a person's name as a voter entitles him to vote, and this demolishes the basis of the contention that inasmuch as an elaborate procedure has been provided under Chapter IV of the Act read with the rules for correction or amendment of an entry in the Electoral Roll and every opportunity is given to take advantage of them the Roll must be considered final for all purposes including entry as to the age of a voter or a candidate. Section 13‑A of the Act which is not subject to rule 22 (3), indicates the untenability of such a proposition. The sanctity of the Electoral Roll in my opinion merely attaches to the entry of a person's name as a voter in the electoral roll and to nothing else. To be a citizen of Pakistan is one of the basic qualifications of a voter and for the matter of that of a candidate, but there is no column prescribed in the electoral roll for recording the citizenship of a voter. Nevertheless if it be discovered after the election that the returned candidate was never a citizen of Pakistan, can it be said that his election cannot be challenged before the Tribunal and the Tribunal cannot go into such question. All these lead me to think that finality B is attached and must strictly be confined only to the entry of a person's name as a voter of a particular unit, and proviso (iii) in section 23 (3) must also be confined to the disability put on the Returning Officer only and it cannot and should not be extended to the Tribunal. Ana it will be unreasonable to extend such disability to the Tribunal in the absence of any provision to that effect the Act or the Rules. It may be mentioned that each and every case cited in the various decisions in support of such disability is merely an authority for the proposition that the electoral roll is final for the purpose of entitling a person to vote who is shown on the Roll as a voter. Both Mr. Gholam Hafez and Mr. T. H. Khan have drawn our attention to an unreported decision of the Supreme Court in Civil Appeal No. 40‑D of 1966 decided on the 8‑11‑66 in support of their view that the electoral roll is final in respect of all the entries therein and that the Tribunal cannot enquire into the validity of any entry therein. As the decision has come from the highest Court of the land, it is not only entitled to all respects but also in certain specified matters it is binding on all other Courts, I propose to deal with it in some details. In the case under report the candidature of the returned candidate was challenged on the ground that he was not qualified to be enrolled as a voter in the particular unit so as to entitle him to stand as a candidate therefrom in terms of Article 158 of the Constitution read with section 2.1 of the Act. The facts leading up to the decision of the Supreme Court may briefly be stated as follows: The name of the returned candidate was put as a voter in Unit No. 6 after his claim to be enrolled as a voter in Unit No. 5 had been rejected by the Registration Officer. On appeal to the revising authority he succeeded in having his name recorded as a voter in Unit No. 5, and the final electoral roll was prepared accordingly. The election in question was contested by only two candidates and the petitioner having secured the highest number of votes was declared elected from Unit No.

5. The unsuccessful candidate then challenged the validity of election on the grounds, inter alia that he was not entitled to be recorded as a voter in Unit No.

5. The Tribunal held that the returned candidate not being a resident in Unit No. 5 could not be a voter of or for the matter of that, be a candidate from Unit No. 5, and it, therefore, set aside the candidate's election. Upon these facts the question that came up for consideration by the Supreme Court in the words of the Court itself may be reproduced thus:‑ "Whether the High Court was right in holding that an entry in the electoral roll prepared under the Electoral College Act was final, not only against the powers of a Polling Officer or a Returning Officer, but also against the Jurisdiction of the Election Tribunal to decide whether the person concerned was entitled, on the ground of residence, to have his name entered in the electoral roll of a particular Unit." On a consideration of the relevant provisions of the Constitution and the Act the Court made the following observa tions: ‑ "From the above, it i‑, clear that every person whose name is entered in the electoral roll maintained in accordance with law is legally entitled to vote except those mentioned in Article

157. The only conclusion therefore which can be arrived at from the general scheme of procedure as to preparation of the electoral roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the rules, the only remedy to the person objecting to the same, is by way of objection under the rule and that if the said remedy is not availed of, the electoral roll becomes final and conclusive .as to his qualification and the Election Tribunal is therefore precluded from enquiring into the question of his possessing necessary qualifications as a voter. The electoral roll as revised by the Revising Authority would therefore be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory disqualification he become ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the necessary qualifications." The underlining* is mine, In support of these observations the Supreme Court relied on certain cases thus: ‑‑ `'this view also‑ finds support from a large number of r sported decisions. Some of these decisions while interpret ing similar provisions in the Order‑in‑Council and rules made under the Government of India Act, 1919, held that the ,electoral roll was final not only so far as the Returning Officer was concerned but also for the Election Commissioner. This Court while considering similar provisions in the District Board Election Rules in the case of Imtiaz Ali v. Ghulam Muhammad Butt (P L D 1958 S C (Pak.) 228) observed: ‑ "This view is based upon a settled principle of election law that Election Commissions cannot go behind the final electoral, rolls as amended is accordance with the final, orders of the revising authority. It is settled that every person whose name is entered in this electoral roll is entitled to vote at the election to which the roll relates, unless there be some personal disqualification. A Reference may here be made to the case of Stove v. Joliffe 9 L R C P 734 where it was held that the register of voters is conclusive on a Returning Officer, as well as on any tribunal which is to enquire into the election unless there be some personal disqualification. In the Pembroke Boroughs" case it was held that the register is conclusive and the people whose names are mentioned in it are presumed to have the necessary qualifications; `it may be that their names ought not to have been there, but they were there at the time of the election'. It was declared also that the policy‑, of the law is to make it necessary to raise all questions as. to rights to vote before the Registering and Revising authorities, and this has been done by preventing any such question from being., raised at any other time, or in any other manner. These .views have been approved in the r; ported cases of elections to Legislative Assemblies in India as well." With great respect and without in any way detracting from the observations of the Supreme Court quoted above 1 humbly think that their. Lordships clearly intended to confine those observations, to the particular facts of .the case. In the case of Mst. Hamida Bano v. Ashiq Hussain (P L D 1963 S C 109,) the Supreme Court itself has made the following observations: - "Everything said by this Court in a judgment and more" particularly in a judgment in' a criminal case must be' understood with' great particularity as having been said with reference to the facts of that particular case." The observations of the Supreme Court just quoted are in line with the observations of Earl of Halsbury, Lord Chancellor in the case of Quinn v. Leathern (1901 L R A C 496) at page 506 of the Re ports it has beets observed as follows: ‑ "Now, before discussing the 'case of Allen v. Flood 1898 A C 1 and what was decided therein, there are two observations of a general character which I wish ‑to make, and one is. to repeat what I have very often said before, that every judgment must b;, read as applicable to the particular facts proved, or assumed to be proved; since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow, logically from it. Such a mode of reason ing assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all." And this must be so because all the reasons that have been given and the cases that have been relied on by the Supreme Court pointed to the one and only conclusion that the Election Tribunal is not entitled to consider the question of eligibility of a candidate for election from g particular unit on the ground that he was not entitled to be enrolled as a voter it the roll of that unit. If any attempt is made to tear off the observations from their context, they will become meaningless. This may be illustrated by reproducing the follow ing two observations taken out from their context: - "(1) From the above, it is clear that every person whose name is entered in the electoral roll maintained `in accord ance with law' is legally entitled to vote except those mentioned in Article 157. (2) The electoral roll as revised by the Revising Autho rity would therefore be binding on the Tribunal except as regards statutory disqualifications. In other words, if a person's name is entered in the electoral roll maintained under the law and if he is not under any statutory dis qualification he becomes ipso facto qualified to stand as a candidate in the election and the Election Tribunal has no jurisdiction to enquire whether the candidate has the neces sary qualifications." It is obvious that the Supreme Court never meant that mere presence of a candidate's name as a voter in the electoral roll ipso facto qualifies him to be elected as the elector. The disqualification referred to by the Supreme Court appa rently refers to the disqualifications mentioned in section 53~ of the Act. Absence of requisite age of the elector is not mentioned as a disqualification in this section. In my opinion the view expressed by the Supreme Court is not inconsistent with the provisions of Article 158 of the Constitution obser vance of which is a constitutional obligation imposed on all those who are charged with the duty of upholding the con stitution. Any laxity in the matter of strictly fulfilling the requirements of the Constitution may tend to by‑pass or corrode them, and has the dangerous potentiality of making the constitutional provisions ineffective, and may lead to the contravention of its provisions on some pretext or another. Such a possibility should never be countenanced by a Court of law. I may add that the presumption under section 114‑E of the Evidence Act besides being rebuttable is not available in favour of the correctness of an entry in the electoral roll. The presumption is only in regard to the `regularity' of the official act. I may also add that disqualification' and `absence or want of qualification' are two different concepts, and do not in my opinion mean one and the same thing. The present case is a case of absence of the requisite qualification and not a case of disqualification, for if the candidate was below the requisite age, he never possessed the requisite qualification to be elected as the elector. I should like to observe that section 21 of the Ac dealing with the nomination of a person duly qualified falls under Chapter V which deals with conduct of election, and, therefore, a dispute as to the requisite age of a candidate is an election dispute under section 58 of the Act. In my opinion section 54 of the Act does not seem t provide for any remedy to an aggrieved person in this respect as it refers to disqualifications mentioned in section 53 of the Act. Remedy by way of an application under Article 9 of the Constitution is not a normal one and should not, there fore, be considered as a remedy in the context of a statute omitting to provide for a remedy. For the reasons stated above I propose to answer Question p No. 1 in the affirmative and say that the Election Tribunal is competent to enquire whether a returned candidate possessed the requisite age to entitle him to be elected as the elector. On my answer to Question No. 1, no answer to Question No. 2 is called for. The only thing now left for disposal is the fate of the three petitions before us. In the facts and circumstances of the cases I do not think that the Election Tribunal lacked jurisdiction to make the impugned orders or that it acted in any manner in excess of its jurisdiction. In Petition No. 578 it has been contended on behalf of the petitioner that inasmuch as he was the only candidate left in the field after the election of the returned candidate had been declared void, the petitioner should have been declared elected. It has been contended that although rule 36 (1‑A) gives a discretion to the Election Tribunal to declare the election of a particular candidate or the entire election as void and thereby it enables the Tribunal to exercise its dis cretion to declare the election of the returned candidate void and in his place to declare or not to declare any the person elected the Tribunal was bound to indicate its reason for having preferred to exercise its discretion in a particular manner. This contention may have some substance but in my opinion mere omission to give such reason will not make the order of the Tribunal without lawful authority. I am inclined to feel that the Act or the Rules thereunder have afforded no guidance to the Tribunal in this respect. Bat i there is a lacuna in this respect it can be remedied by the law giver only, and not by the Court. In the result, therefore, I discharge all the three Rules without any order as to costs. ABU MD. ABDULLA, J.‑Points referred to this Full Bench were formulated thus:‑ (1) Is an Election Tribunal constituted under Article 59 of the Electoral College Act, 1964 competent to consider the question whether a candidate at the election was qualified under the Constitution to stand as a candidate? (2) If the answer to Question No. 1 is in the negative whether any other forum can consider and decide the question. A Division Bench of this High Court comprising A. S. Chowdhury and A. M. Sayem, JJ. had held in the case of Ahsan Ali Mondal v Z. A. Chowdhury in Writ Petition No. 108 of 1965 that the Election Tribunal under the Elec toral College Act has no jurisdiction to declare an election void on the ground that the returned candidate did not have the requisite age qualification on the date of nomination. Another Division Bench of this Court comprising Sattar and Salahuddin Ahmed, JJ in the case of Gazi Nesaruddin v. Mr. A. R. Khan, Election Tribunal in Writ Petition No. 180 of 1965 had expressed the view that they are unable to accept the argument that the entry recording actual age of a candi date in the electoral roll is conclusive proof of his ace and the election Tribunal constituted under section 58 of the Act is not entitled to go behind it. The second Division Bench however, did not refer the case to a Full Bench as their Lordships were pleased to discharge the Rule on the finding of the Tribunal that the Electoral roll had been tampered with and the age, 24, of the petitioner had been made to appear as

27. Thereafter the, question again cane up before the Bench taking writ petitions in Writ Petition No. 2sl of 1965 and Writ Petition No. 377 of 1965. The cases were placed before the learned Chief Justice for being referred to the Full Bench. After the issue of the Rule in Writ Petition No. 281 the respondent No. 2 in the said petition, namely, the unsuccessful candidate at the election, filed a petition asking for a declaration that the action of the Election Tri bunal in directing a fresh Election after having found the election of the petitioner in Writ Petition No. 281 to be void was illegal when the petitioner in Writ Petitioner No. 281 and he were the only candidates at the said election. In Writ Petition No. 281 petitioner Shahidulla Kazi was elected securing 339 votes and the respondent No. 2 Abdul Halim Sikdar the only other candidate secured 228 votes. The res pondent No. 2 filed an Election Petition on various grounds amongst which he challenged that the age of the successful candidate as recorded in Electoral Roll, namely, 30, was wrong and that fact was sought to be proved by production of Dacca Gazette dated 6‑11‑1956 which contained the result of the Matriculation Examination of 1956 and which showed that the date of birth of the opposite‑party No. I Shahidulla Kazi was 26‑4‑

41. The Tribunal rejected all other contentions of the respondent No. 2 that is, Abdul Halim Sikdar and it held that the age of the successful candidate was wrongly recorded as 30 and held that the election of Shahidulla Kazi, as a member of the Electoral College was illegal and void ab initio and set aside the said election and directed a bye, election to be held by the Unit concerned. In Writ Petition No. 377 the Election of the successful candidate Lutfar Rahman was challenged by one of the other candidates Dr. Rashid Ahmed. It was alleged that Mr. Md. Lutfar Rahman did not attain the age of 25 years on the 1st of July and as such he was not qualified to be elected as a member of the Electoral College. This appears to have been the only point placed before the Election Tribunal who accepting the evidence of the petitioner before him declared the election of Mr. Lutfar Rahman as void and declared Dr. Rashid Ahmed the recipient of the next highest vote elected although there were three candidates in the said election. The question, therefore, before us is whether the Election Tribunal has jurisdiction to go behind the entries in the Electoral Roll while consider ing an election petition. I regret that I have not been able to agree with learned brothers of this Bench on the point, for reasons which I shall set out hereafter. I agree with the decision arrived at by the Division Bench presided over by A. S. Chowdhury, J. After the two Division Bench cases our Supreme Court considered the finality of the entries in the Electoral Roll in the case of Syed Aminuddin Chowdhury v. The Election Tri bunal in Civil Appeal No. 40‑D of 1966. In that case special leave was granted to examine ‑ "Whether the High Court was right in holding that an entry in the electoral roll prepared under the Electorate; College Act was final, not only against the powers of a Polling Officer or a Returning Officer, but also against the Jurisdiction of the Election Tribunal" (to decide whether the person concerned was entitled, on the ground of residence, to have his name entered in the electoral roll of a parti cular Unit). In an elaborate judgment in which our Supreme Court his set out the relevant portions of the Electoral College Act and the Rules it was held: "This exhaustive reference to the relevant provisions of the Electoral College Act and the rules framed thereunder, has been made for the purpose of showing that the intention of the Legislature was to finalize the electoral roll by the actions taken by the Registration Officer and the Revising Authority." It was further held by the Supreme Court: "The H only conclusion therefore which can be arrived at from the general scheme of procedure as to preparation of the electoral' roll is that if a person is entered in the electoral roll in contravention of the provisions of the Act and the Rules, the only remedy to the person objecting to the same is by way of objection under the Rule and that if the said remedy is. not availed of, the electoral roll becomes final and conclusive as to his qualification and the Election Tribunal is therefore precluded from enquiring into the question of his possessing :necessary qualification as a voter." Then finally the Supreme Court goes on to hold that "the electoral roll as revised by the Revising Authority would therefore be binding on the Tribu nal except as regards statutory disqualifications." The Supreme ‑Court concludes by holding that "if a successful candidate's name has been entered in the electoral roll and remained there up to the time of nomination his rights to stand as a candidate cannot be challenged save and except on the ground of statu tory disqualifications." The statutory disqualification referred to by the Supreme Court are embodied in section 53 of the Electoral College Act but disqualification on the ground of age is not mentioned in the said section'. Therefore, according to the decision of our Supreme Court the Tribunal has got no jurisdiction to enter into the question whether the age recorded on the Electoral Roll was not correct. It has been argued before us that in this decision our 'Supreme Court was considering the question whether a candidate's name was on the Electoral Roll as a voter and the challenge before the Election Tribunal in the case out of which the appeal to the Supreme Court arose was that the successful ‑candidate not being a resident of the Electoral Unit could not stand as a candidate for the seat. It is true that that was the question in the said appeal. But the Supreme Court, as stated before, has categorically declared on an analysis of the provisions of the Act and the Rules that the Electoral Roll as revised by the Revising Authority would be binding J on the Tribunal except as regards the statutory disqualifica tions. If the Electoral Roll is held to be binding then the Electoral Roll must be binding with all its entries. An Electoral Roll is to be prepared in accordance with the form 3 under rule 8 which I set out below: Electoral Unit (Name of Unit) .. Tehsil District Thana Sub‑Division For the year . SerialNo. Name Father's name Mother's name Husband's name Address Age (In case of East Pakistan only) Signature of the Registration Officer. 'The column for .age is provided in the Electoral Roll. It has 'been argued before us, and it has been held by Sattar, J., that the Registering Authority would be concerned only with ascertaining whether a voter's age was above 21 or not. It, would not be necessary to go beyond that fact Therefore there cannot be any guarantee that the age recorded by the Registering Authority is the correct age. I do not see any force in this contention. First, it would lead to a presumption that enumeration an registration is done haphazardly and would be contrary to the presumption of correctness of official records as laid down in section 114 of the Evidence Act. Secondly, it will lead to a conclusion that the voters are prone to give different ages for different purposes which I am not prepared to hold. Thirdly, it must be observed that the Electoral Rolls are not disconnected with the other‑ acts leading to the election to the Provincial Assemblies, the National Assembly and to the Election of the President. Article 103 of the Constitution lays down that a person is qualified to be elected as a member of an Assembly if his name appears in the case of the National Assembly on the Electoral Roll for any of' the Electoral Unit or in the case of the Assembly of a province or the electoral roll for an electoral unit of the Province and he is not less than 25 years of age. Article 10 of the Constitution lays down that a person shall not be elected as a President unless he is a National (b) be is aged 35 years and he is qualified to be a member of the National Assembly. Thus the Electoral Roll is the foundation for election not only to the Electoral College but also to the Provincial Assemblies, to the National Assembly and to the office of the President. The Election Commissioner appointed under Article 147' of the Constitution has been given the power under section 5, of the Electoral College Act of appointing Delimita tion Officers and of delimiting the electoral units for the Electoral College under section 6 of the Act. The same Commissioner under section 7 of the Act appoints the Registra tion Officer for each unit. But the same Commissioner is also in charge of delimiting the constituency of the Provincial Assembly under Article 160 of the Constitution and of the Central Constituency under Article 161 of the Constitution. Therefore, it is obvious that the Electoral Roll which is to be prepared under the directions and control of the Commissioner will have to be prepared with a view to all the elections. The preparation of the electoral Roll is not merely for the purpose of recording the name of voters but also obviously, for the purpose of recording the names of the candidates for the electoral college as well as for the Assemblies and of the President. As different ages have been provided for the qualification as a voter, as a candidate for Electoral College, Assemblies and for the President the recording of the correct age of a voter is also incumbent upon the Register ing Authority. The Election laws of our country are not' independent or isolated laws. They are all linked together and the basis of all these elections is the electoral roll. There‑, fore, there should not be any presumption of any haphazard preparation of the electoral roll but on the other hand the presumption would be that the Electoral Roll has been prepared carefully and all the entries therein must be presumed to be correct. Fourthly, it will be seen that an Election petition under the Electoral College Act can be filed to challenge the election only Section 58 of the Electoral College Act reads as follows:‑ (1) No election shall be called in question except by an election petition under subsection (2); (2) Any candidate may make an election petition challenging the election at which he was a candidate; (3) An election petition in respect of an election from an electoral unit shall be presented, in such manner as may be prescribed, to the Election Tribunal appointed under sec tion

59. The qualification of a candidate is a pre‑requisite condition prior to the election. So far as the election is concerned the provisions regarding it occur in Chapter V of the Electoral College Act. Election has been defined in the Act as "Election means an election to the Electoral College held under this Act." (underlining* is mine). The word "held" clearly signifies the holding of an election, that is, all the procedure laid down in Chapter V of the Act. In an Election petition under section 58 only those questions can be agitated which relate to the Election itself that is all the procedure mentioned in Chapter V. Election can have no reference to the qualification of a candidate. This will be apparent from a comparison of the same provisions in the National and Provincial Assemblies Elec tion Act (Act VII of 1964) section 57 reads as follows: "

57. Election petition.‑(1) Subject to the provisions of section 52, any candidate may make an election petition challenging an election for which he was a candidate on one or more of the grounds mentioned in section 72. (2) An election petition shall be presented to the Com missioner In section 72 the grounds for an election petition under this Act are given namely; (a) the nomination of the returned can didate was invalid ; or, (b) the returned candidate was not, on the nomination day, qualified for, or was disqualified, from being elected to the seat in question ; or (c) the election of the returned candidate has been procured or induced by any corrupt or illegal practice; or (d) a corrupt or illegal practice has been committed by the returned candidate or his agent or by any other person with the connivance of the candidate or his election agent. Therefore, the qualification of a candidate is expressly made a ground for challenging an election in the National and Provincial Assembly Election Act. It has been argued that the fact that it has not been made an express ground in the Electoral College Act for challenging an election does not mean that the ground cannot be taken in an election petition under section 58 of the Electoral College Act. But in my opinion the plain reading of the relevant section in the two Acts would show that primarily election petition can be filed only challenging the election and for that reason express provision was made in the National and Provincial Assemblies Election Act that the ground based on qualification of the candidate could also be taken in an election petition. It is obvious from the scheme of the different laws providing for elections in this country that the primary object was to have the electoral college elected as speedily as possible. The election Tribunal under the Electoral College Act therefore has been given very limited powers. The Tribunal cannot call for evidence but must deal with the evidence produced by the candidates themselves. The intention of the Legislature has been further clarified by the Rules framed there under. Rule 36 states that on receipt of an election petition the Tribunal shall give notice of it and after holding sum mary enquiry record its finding. If the Tribunal is confined M to holding a summary enquiry, then the disputed question of fact regarding the qualification of a candidate cannot be property adjudicated. 1n this connection it has been argued that it is not open to the Courts to interpret the provisions of one Act with reference to the provision of another Act. But it must be remembered that the Electoral College Act and the National and Provincial Assemblies Election Act are not strictly speaking isolated Acts of the Legislature. The basis of all the three elections provided in the two Acts is the Electoral Roll which is prepared only under the Electoral College Act. The National and Provincial Assemblies Elec tion Act must therefore, be deemed to incorporate in it the provisions of the Electoral College Act, so far as the prepara tion of the Electoral Rolls are concerned. In my opinion, therefore, the provisions of these two Acts must be read together to ascertain the legislative intention. The elections to the representative institutions prescribed by the Constitution have all the same foundation, namely, the Electoral Roll Therefore, it is permissible to interpret the provisions of the two Acts to arrive at a true construction of the legislative intent. Fifthly, in my opinion, the Electoral rolls prepared under Chapter 1V of the Electoral College Act attained a finality which /0 cannot be undone except by express provisions of law. Section 8(2) provides that the Draft Electoral Roll prepared under sub section (1) shall be published in the prescribed manner with a notice inviting claims and objections in respect thereto in such manner as may be prescribed. The prescribed manner refers to rules 8 to 14 of the Rules prepared under the Article. Rule 8 reads as follows: ‑ "As soon as may be, after the draft electoral roll for an electoral unit is ready, the Registration Officer shall publish it in Form III, together with a notice inviting claims and objections at his office and at such other place or places as he may consider necessary." Rule 10 provides that every claim for inclusion of a name in the electoral roll shall be in Form IV and every objection to any entry therein shall be in Form V. Now Form V shows that objection can be taken to the age of a voter shown in the electoral roll. Rule 11 provides the period for lodging the claims and objections and rule 12 provides the manner for making and lodging claims. Rule 13 though purporting to provide for the manner of making and lodging objection refers only to objection as to inclusion of person as voter. The objection as to age it has been argued, does not find place in the said rule

13. Rule 13(1) reads as follows ‑‑ "Any person whose name appears in an electoral roll may object to the inclusion of any person enrolled as a voter in the same roll and may apply to the Registration Officer either in person or in writing for the exclusion of the name from the roll." It is true that rule 13 although purporting to provide the manner of making and lodging objections confines itself only to the objec tions regarding the inclusion as a whole of the name of a person as a voter but there is no prescribed manner in rule 13 for lodging objections as to age of a person who may qualify as a voter but has given an age which may also qualify him to be a candidate though in fact he may not be so qualified. In my opinion this omission in rule 13 is not material inasmuch as section 8 (2) has provided for lodging of objections on any count and rule 10 gives the form for lodging such objections of which Form V specifically provides for objections as to age. In rule 13 the rule‑making authority confined itself only to the serious charge of wrong inclusion of the name of a person in the voters' list for which an elaborate procedure has been provided. In my opinion,' section 8(2) read with rules 10 and 11 and Form V are sufficient for the purpose of lodging any objection as to age which a person may have against the entry as to age of a voter. I would therefore hold, respectfully following the law as laid down by our Supreme Court that the Election Tribunal constituted under Article 59 of the Electoral College Act, 1964 is trot competent to question the entries in an Electoral Roll in an election petition filed before him and answer the first question in the negative. The question then arises what is the Forum which can consider and decide such objections. The rival candidate or the objector is not without remedies; there is no appeal provided from an order of a Returning Officer accepting a nomination paper even after objection as to age. But the doors of the civil Court are open and Article 98(2) of the Constitution also gives the aggrieved person a proper forum to ventilate his grievance. I am fortified in my opinion because discovery of the fact that a candidate may not have the necessary qualification can be made even after the period of limitation prescribed for filing an election petition may be over. Will the constituents or the rival candidate be powerless to remove such a person in such a circumstance? Section 84 of the Act cannot restrict the jurisdiction of civil Courts or of the High Court under Article 98 of the Constitution` in such circumstances. And I would therefore answer the second question that the aggrieved person can resort to the civil Court or to the High Court under Article 98 of the Constitution. I would therefore make the Rules in Writ Petition No. 281 of 1965 and Writ Petition No. 377 of 1965 absolute but I would make no order as to costs. As regards the question raised in Writ Petition No. 578 of 1965, although the question is not strictly within the reference to this Full Bench, yet as the Rule was heard by us and as arguments were addressed to us, I will have to give my opinion on the question raised in that petition. In the said Writ Petition the defeated candidate was successful before the Election Tribunal. There were only two candidates in the election. The Tribunal had found the election of the successful candidate void. The Tribunal had instead of declaring the petitioner before him as the elected candidate directed a fresh election. This direction was challenged in this writ petition. The Act in section 60 lays down that subject to any Rules made in this behalf, the Tribunal shall after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it make such orders as it may think fit. Therefore, the power of the Tribunal to make any order which it may think fit but made the discretion subject to the Rules. The relevant Rule is rule

36. Rule 36 as it was originally framed merely stated that on receipt of an election petition the Tribunal shall give at least a week's notice to all the respondents named in the petition and after holding a summary enquiry record its findings. There was no guidance or limitations imposed in the said rules as originally framed. By a subsequent amendment rule 36(1‑A) was introduced, which reads as follows: ‑ "The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result to the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules." After amendment of the Rule, the Tribunal has been enjoined (1), to declare the election of the returned candidate to be void (2) to declare 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 the contravention of, any provisions of the Act or the Rules. Therefore it is clear that rule 36(1‑A) even does not provide the answer to the question raised by the petitioner in Petition No.

578. This amendment was made in my opinion to bring it in conformity with the same provisions of law in similar enactments for instance, in section 72 of the National and Provincial Assemblies Act, subsection (3) provides a mandate on the Tribunal to declare the election as a whole void if on the evidence it is satisfied that the result of the election has been materially affected by reason of the failure by any person to comply with the provision of the Constitution or the Act and the rules or for extensive corrupt or illegal practice at the election. Now let us see what rule 36 (l‑A) actually lays down. So far as the first point is concerned supposing for the reasons given in the said Rule the Tribunal is satisfied that the election of a ‑returned candidate has to be declared void has he the option of declaring the candidate with the next highest number of votes elected or has he the option of declaring the election as a whole void? In my opinion, in this case neither the Act nor the Rules have prescribed the course to be followed by the Tribunal. What has been made mandatory is that if the Tribunal is satisfied that the conditions mentioned in the said Rule has been fulfilled then he must declare the election of the successful candidate to be void. But then he is left with the discretion of either directing a fresh election or to declare the candidate with the next highest number of votes as elected. If a mandatory provision of the Act has not been followed and the Tribunal is satisfied that the result of the election has been materially affected and he has to declare the election as whole void then the second condition comes into play and the Tribunal must order the holding of a fresh election. Although the Rules have been framed very unhappily the intention of the rule‑making authority has got to be interpreted and we must endeavour to interpret the said Rule in order to give a true guidance to the Tribunal. In cases where the election would amount to no election in my opinion the second clause of rule 36 will apply and the Tribunal must declare the election as a whole to be void and consequently order a re‑election. In cases' where the contraventions materially affect the result of the election of the successful candidate only he must declare the, election of the successful candidate as void and in his discretion, either declare the candidate with the next highest number of votes as being elected or direct re‑election. In the instant writ petition however, I have held that the Tribunal had no jurisdiction to enter into the question of the age of the candidate as recorded in the Electoral Roll and as such his order declaring the election of the successful candidate as void was illegal and without jurisdiction. The question of fresh election or declaring the candidate with the next highest vote as elected therefore does not arise. I would therefore discharge this Rule without any order as to costs. A. H. KHAN, J. I agree with my learned brother Mr. Justice Salahuddin Ahmed in the answer given by him to the first question under reference, and the order for discharge of all the three Rules. I would like to add certain observations of my own. The points referred to have already been stated in the judgments of my learned brothers. I do not like to repeat them. The decision in this case depends on the correct appreciation and interpretation of the judgments of the Supreme Court in the two cases, namely, Imtiaz Ali v. Ghulam Muhammad Butt and another and the unreported decision in Civil Appeal No. 40‑D of 1966. It is clear from the facts of both the cases that they are absolutely different from those in the present case. In the case of Imtiaz Ali certain voters who should have been included in electoral roll of some other Circle were wrongly recorded in the electoral roll of another circle, namely, Circle No.

41. Their Lordships of the Supreme Court in that case observed (at pages 240‑241) as follows: "It has been overlooked that Moujo‑ki‑Bhet was included in the electoral roll for Circle No. 41, which itself was prepared in accordance with law, that is to say, after publication of a preliminary roll, invitation of claims and objections and after correction of that preliminary roll on the basis of decisions made by the Revising Authority in relation to such claims and objections as were received. If there was a defect in the preliminary roll by the inclusion therein of the names of voters from village Moujo‑ki‑Bhet. That defect should have been brought to light by the making of a proper objection before the revising authority at the proper time. No such objection was ever made, and the electoral roll having been revised was duly published. Thereafter, no further objection could be taken to the electoral roll and the election was to be held on the basis of that roil." In the case of Civil Appeal No. 40‑D of 1966 the question was whether the successful candidate was entitled to be enrolled as a voter in the unit from which he was elected. In neither of the two cases before the Supreme Court was there any question regarding the age of the candidate and, therefore, it never fell to be decided by their Lordships of the Supreme Court whether or not the Election Tribunal can go into the question of the qualifying age of a candidate. From a careful perusal of the two judgments of their Lordships of the Supreme Court, it is clear that the principle o U finality of the election roll is based on the assumption that the party concerned had already an opportunity of making his claim or objection at the stage of preparation of the roll before it became final. But on a careful perusal of the Electoral College Act and Rules made thereunder it appears to be clear that a person who is enrolled as above 21 years of age but below 25 years cannot get the opportunity of making any objection as to the entry in the draft electoral roll regarding his age. This is clear from the provisions of rule 12 or 13 of the Act which provides for making claims for inclusion and raising objections for the inclusion of a person enrolled as a voter, and not regarding age. Subsection (5) of section 8 of the Act provides for amendment of the electoral roll. It lays down that 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 of any person who has died or has otherwise he come disqualified for enrolment. It is true that in sub‑rule (2) of rule 22 there is a provision for correction of an existing entry in the electoral roll for the time being in force. But no correction as regards age is authorised by the Act itself as there is no such provision in subsection (5) of section 8, or elsewhere in the Act. It is also to be noticed that there is no provision of any appeal or revision from any order for correction under subsection (2) or rule

22. It may be further mentioned that under certain circumstances mentioned by Mr. Justice Salahuddin Ahmed in his judgment, an aggrieved party may not get an opportunity for correction of an error in respect of an entry regarding a voter in the Electoral Roll brought on the roll under section 13‑A of the Act. Under the proviso (iii) to section 23(3) of the Act, the Returning Officer is debarred from enquiring into the correctness or validity of an entry in the election roll. If this also includes an enquiry as to the age of the candidate then the appellate officer would also be debarred from looking into the question of age. In the circumstances, the only remedy of an aggrieved party should be with the Election Tribunal, otherwise he is left with no remedy at all. My learned brother Mr. Justice Abdulla has observed that the Electoral College Act and the National and Provincial Assem blies (Elections) Act, 1964, being analogous Acts may be read together for interpretation of the Acts. Now, it will be observed that in the Electoral College Act many of the provisions have been enacted in the briefest terms, while some necessary provi sions are altogether omitted and have to be gathered as far as possible from the other provisions of the Act or the Constitution (in the case of age of a candidate). Thus, in section 21 it is stated that a person "duly qualified" may be proposed for nomi nation as a member of the Electoral College. There is no provi sion either in the Act or Rules as to who is "duly qualified," as made in section 12(2) of the National and Provincial Assemblies (Elections) Act, 1964. The provisions regarding election disputes are contained in only three sections, 58, 59 and 60 of the Act containing only 22 lines. Section 60 runs thus: ‑ "

60. Trial of petition.‑(1) A Tribunal shall, upon receipt of an election petition, give notice thereof to all the contesting candidates at the election to which the petition relates. (2) Subject to any rules made in this behalf, the Tribunal shall, after giving the contesting candidates an opportunity of being heard and taking such evidence as may be produced before it, make such orders as it may think fit. (3) The decision of the Tribunal on an election petition shall be final." There is no provision anywhere as to the particulars to bf given in an election petition, and the specific grounds on which an election may be set aside, or when the Tribunal may declare another candidate elected on the election of the returned candidate being declared void, and when an election as a whole may be: set aside. To my mind, the Returning Officer while performing his function of scrutiny under section 23 of the Act may see light from the provisions of section 12(2) of the National and Provincial Assemblies (Elections) Act, 1964, for the qualification of candidate, and the Tribunal may also look for enlightenment, into the provisions of sections 71 and 72 of the Assemblies Act in deciding an election dispute, I must make it clear that I do not mean that he should follow these provisions as binding on him. I am clearly of opinion that in view of the provisions of section 60 of the Act, it cannot be held that the question of age of a candidate cannot be entered into by the Tribunal and that an election petitioner may be legitimately barred from raising the question of age if there was no previous opportunity of raising the same question before the Registering Officer or the Returning Officer. If he did not have any such opportunity, it seems extremely reasonable that he should be allowed to raise the question before the Tribunal. As already observed, in my humble opinion, there is nothing in the two decisions of the Supreme Court regarding the question whether the Tribunal can enter into the question of the qualifying age of an election candidate. The observations of their Lordships of the Supreme Court in those cases, according to the principle laid down by their Lordships in the case reported in P L D 1963 S C 109 already referred by my X learned brother Salahuddin Ahmed, J. must be interpreted as applying to the facts and circumstances of those cases only, which as I have pointed out, are quite different from those in the present case. I am, therefore, of opinion that the Tribunal has jurisdiction to decide the question of the qualifying age of a candidate irrespective of the entry in this respect in the Electoral Roll. SALAHUDDIN AHMED, J.‑In accordance with the majority opinion of the Bench, the questions referred to the Bench are answered thus :‑ Question No. 1 is answered in the affirmative. The Election Tribunal is competent to enquire whether a returned candidate possessed the requisite age to entitle him to be elected as the elector. Answer to Question No. 2 is not called for in view of the answer to Question No.

1. All the three Rules in the three petitions are discharged without any order as to costs. Mr. M. M. Haque, appearing on behalf of the petitioners in Petitions Nos. 377 and 281 of 1965 prays for a certificate under Article 98 of the Constitution. As a substantial question of constitutional law is involved in these matters, we give the certificate asked for. S. A. H, Rules discharged.