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Writ Petition No. 216 of 1967, decided on 22nd April 1968.

Art. II read with West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, r. 7‑Person competing for office of Chairman must be an "elector"‑Candidate possessing inherent disqualification of being "elector"‑ Defect going to very root of his being a Basic Demo crat‑Constitutes "sufficient reason" to annul his election under r.7, West Pakistan Basic Democracies (Election of Chairman) Rules, 1960‑Person recorded in electoral roll as less than 25 years of age on date of filing nomination paper‑Held: Controlling Authority could examine his status as "elector".

Umar Daraz Khan v. Muhammad Yousaf and others Civil Appeal No. 62 of 1967; Muhammad Yousaf v. Malik Karam Dad Khan and others P L D 1968 Lah. 30 and Haji Khizar Hayat v. Sarfraz Khan and another P L D 1968 Lah. 381 rel.

Art. 98‑Grant of relief leading to Injustice and illegality‑Superior Courts have ample jurisdiction to refuse relief which would tantamount to injustice.

Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another P L D 1965 S C 269 rel.

Ch. Muhammad Asif Ranjha for Petitioner.

Raja Muhammad Anwar Kanwar and Saadat Ali Khan for Respondents.

Dates of hearing: 21st and 22nd February 1968.

In the electoral roll published in respect of Electoral Unit No. 518, Tehsil Daska, District Sialkot, the name of the petitioner appeared at No. 196 and he was shown to be of 23 years of age. According to the petitioner, this age was not correct. So on the 12th of October 1964, he put in an application ("copy Annex. A") to the Registration Officer, stating that, in fact, he was twenty‑six years of age and that the entry in the electoral roll should be corrected. The application of the petitioner was marked by the Registration Officer to the Medical Officer, Daska for expert opinion on the point of age. The Medical Officer examined the petitioner and reported that his age was twenty‑six years. It is asserted in the writ petition that on the basis of the aforesaid report of the Medical Officer, the Registration Officer corrected the age of the petitioner on the 13th of October 1964.

2. The petitioner stood as a candidate for being elected as an elector under the Electoral College Act, 1964, from Unit No. 518. His rival candidate was one Ch. Khursheed Ahmad of Village Rehan Cheema. The rival candidate raised objection about the age of the petitioner before the Returning Officer but the same was rejected and the election of the aforesaid Unit took place on the 5th of November 1964. The petitioner turned out successful. No election Petition was filed by his rival Ch. Khursheed Ahmad.

3. Later on, six Electoral Units (including Unit No. 518), were constituted into a Union Council No. 62, Tehsil Daska. Since by law the Members of an Electoral College have been given the status of the Members of a Local Council within the meanings of clauses (26) and (24) of Article 3 of the Basic Democracies Order, 1959, they were required to elect a Member of their respective Union Council No. 62 in this case as a Chairman under Article 11 (5) of the Basic Democracies Order. This election took place on the 18th of January 1966, in which the petitioner and respondent No 1 were the contesting candidates. The petitioner was declared elected with a majority of five to one.

4. Respondent No. 1 filed an election petition under Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960. The main point raised in the said election petition was that the petitioner was less than twenty‑five years of age at the time when he sought election to the Electoral College‑(i. e. November 1964)‑and that he was not qualified to be a Member of the Electoral College. It was further added that due to this inherent infirmity in the status of the petitioner, as a Member of the Electoral College, he could not be considered to be a Member of the Local Council/Union Council concerned; because according to respondent No. 1 it was only a duly qualified person who could become a Member of the Electoral College and since the petitioner was disqualified on the point of age, he could not be considered to hold the said office in the eye of law. This election petition was tried by the Collector, who was also the Controlling Authority within the meaning of Article 3(10) of the Basic Democracies Order. The Collector Controlling Authority held that the petitioner was of less than twenty‑five years of age on the date relevant for contesting the election of an elector under the Electoral College Act from Unit No. 518 and, consequently, he could not have been considered as validly holding that status. With this finding, the Controlling Authority not only set aside the election of the petitioner as a Chairman of Union Council No. 62, but also removed the petitioner from the office of an elector from Unit No. 518. The petitioner has come up in Writ Petition against the aforesaid order of the Controlling Authority. Learned counsel for the petitioner has raised a number of contentions to which we will presently advert.

5. The first point argued by the learned counsel for the petitioner was that the Controlling Authority under Rule 7 of the West Pakistan Basic Democracies (Election of Chairman) Rules, 1960, could no doubt set aside the election of a Chairman for, "any material irregularity or any sufficient reason to be recorded". but the phrase, "any sufficient reason to be recorded," in the said Rule, according to the learned counsel, could not be interpreted so wide as to involve the examination of the status of the candidate as an "elector," which status was conferred on him by the Electoral College Act IV of 1964, by virtue of elections held thereunder and about which it was laid down in section 58 thereof that "no election shall be called in question except by an election petition under subsection (2) of section 58," and which election of the petitioner was not challenged by anybody, with the result that the status of the petitioner as an elector was now a sacrosanct affair, the validity of which could not be gone into in proceedings under an altogether different statute or rules. The contention has no force. There is no justification to limit the scope of the phrase "any sufficient reason". To be a basic democrat, it is essential under the law as at present that one must possess the status of an "elector" because it is only on electors that the status of basic democrats was conferred. When a person, therefore, competes for the office of a Chairman (of a Basic Democracy) under Article 11 of the Basic A Democracies Order of 1959, he is to be an "elector" first. If any candidate possesses any personal inherent disqualification of being an elector, it is a defect which goes to the root of his status as a basic democrat and would constitute a sufficient reason to declare his election as a Chairman illegal. The view which we' have taken has the support of a recent judgment of the Supreme Court in Umar Daraz Khan v. Muhammad Yousaf and others (1968 S C M R 880) (Civil Appeal No. 62 of 1967, decided on 4‑3‑1968) which in effect confirms the decision of a Division Bench of this Court reported in Muhammad Yousaf v. Malik Karam Dad Khan and others (P L D 1968 Lah. 30) on this count. Prior to the judgment of the Supreme Court, there appeared to be a conflict on this point. A Division Bench of this Court consisting of Muhammad Iqbal and Muhammad Akram, JJ., in Haji Khizar Hayat v. Sarfraz Khan and another (P L D 1968 Lah. 381) had taken up the view that the status of a person as an "elector" could not be gone into in any proceedings except those which were provided for in the Electoral College Act, IV of 1964, so much so, that even a writ of quo warranto could not be issued in respect of an "elector" who had not yet taken an oath. As such, though the case was of a writ of quo warranro and also of an "elector" who had not yet taken an oath and on that point it may have distinct features of its own, but there were observations in the judgment to the effect that the status of a person as an elector could not be gone into in any separate proceedings. As against this there was a judgment of a Division Bench consisting of S. A. Mahmood and Ataullah Sajjad, JJ., reported in Muhammad Yousaf v. Malik Karam Dad Khan and others, in which it was held that status of a person as an elector could be gone into while examining the validity of the election of a Chairman under Basic Democracies (Election of Chairman) Rules, 1960. It was from this case that the appeal went to the Supreme Court which maintained the view taken by S. A. Mahmood and Ataullah Sajjad, JJ., since the precise matter involved in this case is concluded by the judgment of the Supreme Court, we need not go into the point of conflict or distinction between the two judgments of the High Court. The contention raised by the learned counsel, therefore, has no force and is hereby repelled.

6. The second point argued by the learned counsel for the petitioner was that the finding of the Controlling Authority, that the petitioner on the relevant date was not of twenty‑five years of age is not correct and has not been recorded after reference to all the evidence led in the case. The contention has no force. The Controlling Authority in Para. 2 of his judgment wrote:‑

"The main contention of the petitioner is that the respondent was below 25 years of age. Thus he was not qualified to be elected as Chairman. The petitioner in support of his version produced the electoral roll of Electoral Unit No. 518 wherein the name of the respondent is entered at Serial No. 196. He also examined Shall Muhammad, Headmaster of Jinnah Islamia High School, Bhopalwala, Tehsil Daska, who deposed that the respondent had been a student of his school and according to the record maintained in school, the date of birth of the respondent is 9‑12‑1941. He also produced certificate Exh. P. 1. The respondent did not accept the version of the petitioner and in his written statement explained that his age was corrected by the Registering Officers 26 years at Serial No. 196 of the electoral roll. He also produced Dr. Asghar Hamid Qureshi, Medical Officer, Daska who had medically examined the respondent (sic) was 28 years of age.

Then later on, in Para. 3, the Controlling Authority wrote that:‑-

"I have gone through the record of the case and have also heard the counsel for the parties at length. The record of the application on which the correction with regard to the age of respondent was made was summoned. However, the papers could not be produced and were reported to be missing. The petitioner, however, produced a photo stat copy of the application by the respondent which appears to have been presented to the Registering Officer on 13‑10‑1964. Thus it is clear that the correction was made after 13‑10‑1964. The case was fixed for orders when the petitioner on 7‑1‑1967 produced a copy of judgment delivered by Mr. Justise S. A. Mahmud and Mr. Justice Ata Ullah Sajjad on 25‑11‑1966 in Writ Petition No. 475 of 1966 Muhammad Yousaf v. Malik Karam Dad, etc., whereby Umar Draz, Chairman, Union Committee No. 14, Lyallpur was removed from the chairmanship of the Union Committee and as well from the membership of Unit No. 1753, Lyallpur on the similar grounds which are the subject‑matter of the election petition before me."

This was followed by Paragraph No. 4 which is to the following effect:‑--

4. It is an admitted fact that the Electoral Unit No. 518, Sialkot District was called upon to elect its representatives on the 3rd October 1964, that the election was held on 5‑11‑1964 and that order of the Registering Officer directing a correction of the entry of age of the respondent, Muhammad Sarwar was made on or after 13‑10‑1964, i.e., within the above dates and as such, according to the observations made by their Lordships the correction made in electoral roll on or about 13‑10‑1964 cannot be held legal and the respondent is to be considered below 25 years of age at the time of filing his nomination papers. It is thus clear that the respondent was not fully qualified to be elected as a member of the Basic Democracies and further as a Chairman of the Union Council. In view of the judgment delivered by their Lordships in the above referred writ petition, I would accept the election petition and set aside the election of the respondent as Chairman of Union Council No. 62, Tehsil Daska. He should also be removed from membership of the Electoral Unit No. 518, Tehsil Daska. Fresh elections should be held for the chairmanship of Union Council No. 62, Tehsil Daska and membership in Unit No. 518 of Tehsil Daska."

This will show that the Controlling Authority was alive of whatever evidence had been led in the case and to him the point which appealed most was that the petitioner was recorded in the initial electoral roll as to be of less age and that the petitioner did not get his age corrected within the time laid down by law for getting such entries corrected. This circumstance impressed the Controlling Authority most who was of the view that had the petitioner really been of a different age, he would have taken steps in time. As against this, there was the medical evidence of Dr. Asghar Hamid Qureshi, Medical Officer, who examined the petitioner and who simply proved the certificate granted by him. The Controlling Authority was aware of all this evidence but chose to rely on the circumstance aforementioned. This will show that the point raised by the learned counsel for the petitioner is one of appreciation of evidence and not such which can render the impugned order on this count as to be without lawful authority. Merely because another view on the same set of evidence could be possible is no ground to declare the order of the Controlling Authority to be without lawful authority.

7. The last point argued by the learned counsel for the petitioner was that assuming without conceding that the Controlling Authority could examine the status of the petitioner as an elector, it was submitted that the said Authority after finding a defect therein, at the most, could set aside the election of the petitioner as a Chairman, but could not undermine the status of the petitioner as an elector or remove him from that also. We do not want to go into this question because our approach is entirely different. If once it is held that the petitioner was not qualified to be an elector (then without conceding) even though the Controlling Authority could not have directed the removal of the petitioner from the panel of electors, we do not want of issue any writ exercising our jurisdiction under Article 98 of the Constitution, the effect of which will be to confer on the petitioner a status which he was not eligible to hold, or, in other words, to give him, a relief which will lead to injustice and illegality. That superior Courts have ample jurisdiction to refuse a relief where granting it would tantamount to injustice is well known, but if authority be needed reference can be made to Tufail Muhammad and others v. Raja Muhammad Zia Ullah Khan and another (P L D 1965 S C 269), where even though the appellants therein were bound to succeed on technicalities, the Supreme Court refused to grant them the relief because it would have otherwise resulted in injustice or conferred such a benefit on the party concerned to which he was otherwise not eligible. The head note (b) in the judgment mentioned above reads as follows:‑

"(b) Constitution of Pakistan (1962), Art. 98 ‑Writ Jurisdic tion will not be exercised in aid of injustice (Appeal against order of dismissal of writ petition rejected, where appeal was likely to succeed on question of limitation, but case was otherwise in just on merits."

Respectfully following the said law, we refuse to give effect to the contention aforesaid of the learned counsel for the petitioner.

8. No other point was argued before us.

9. The upshot of the above discussion is that the present writ petition has no merits and is hereby dismissed leaving the parties to bear their own costs.

A.E. Petition dismissed.

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