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Constitutional Petition No. 66 of 1984, decided on 28th June, 1984.
----Art. 9-Documents issued by public functionaries-Which of such documents was correct could only be established by actual proof to be furnished before Tribunal which right petitioner himself had waived-No definite finding, held, was possible and no fault, therefore, could be found to observations of such Tribunal by High Court in Constitutional jurisdiction.
----S. 11, Explanation IV-Party to proceedings must take all pleas available to it at time of adjudication-Party cannot urge one plea at one time and take another plea at another time-None should be vexed twice for same cause.-[Pleadings].
--Interpretation-Terms could not be used loosely or glibly but have to be alleged, evidence led and then examined and adjudged-Both terms were of great import and carried grave consequences in law and morality and could not be used against anybody without proper proof.-[Words and phrases].
----Judgment-Points not discussed in judgment were presumed to have been abandoned.-[Judgment].
--- Art. 9-Constitutional jurisdiction---Tribunal purposely not impleaded in constitutional petition - Allegations against such Tribunal, held, were not worthy of any serious consideration.
-----S. 25-Baluchistan Local Government Ordinance (II of 1980), Ss. 20 & 21-Person enrolled an electoral rolls for more than one electoral areas-Not disqualified to vote or to contest election from any one of such electoral areas.
Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 others 1984 S C M R 537 fol.
- Art. 189-Decisions of Supreme Court binding on High Court. [Precedent].
Yahya Bakhtiar for Petitioner. .
Muhammad Aslam Chishti assisted by Muhammad Zafar for Respon dent No. 1.
Muhammad Nawaz Ahmad for the State.
Dates of hearing: 30th May and 3rd June, 1984.
The petitioner having been unsuccessful in the election petition filed by him before the Election Tribunal (District Judge) Quetta has filed this Constitutional Petition and challenges the election of Abdul Manan son of Faiz Muhammad (respondent No. 1) from Union Council Alizai, District Pishin.
2. The respondent No. I and the petitioner besides three other persons were candidates from Union Council Alizai, District Pishin which election was held on 7th September, 1983 and the respondent No. 1 was declared elected as he had secured 358 votes against 269 votes polled for the petitioner. It may be mentioned at this stage that during the scrutiny of the nomination papers the nomination paper of respondent No. 1 was rejected, his appeal to the appellate authority was also rejected but this Court in the Constitutional petition filed by respondent No. 1, had declared the rejection of his nomination paper as without lawful authority and he was declared validly nominated candidate on 4th September, 1983. Where after the election was held as scheduled on 7th September, 1983 and the respondent Abdul Manan having secured more votes was decla red successful. Being dissatisfied with the result of the election the petitioner Saleh Muhammad filed an Election Petition No. 25 of 1983 before the Election Tribunal, Quetta Division, Quetta. The grounds urged by the petitioner before the Election Tribunal were that the res pondent No. I Abdul Manan was also enrolled as voter at serial No. 7655 in Ward No. 7 Halqa No. 10 (Marriabad) Quetta City as such he was not qualified to be enrolled in Halqa wherefrom he had sought the election and was declared successful. It was also alleged that Abdul Manan the respondent No. 1 had cast his vote in the election of Quetta Municipal Corporation on 31st August, 1983. The main contesting respondent before the Election Tribunal was Abdul Manan who had controverted the allegation that he was enrolled as voter in the electoral roll of Quetta City (Marriabad) or that he had cast his vote in the Quetta Municipal Corporation elections and had contended that the grounds urged in the Election Petition could not be maintainable within the scope of the Election Rules.
3. The petitioner filed the following documents :-
(1) Photostat copy of the Identity Card bearing No. 604-52-024799 showing the address of Abdul Manan as Alizai-Pishin.
(2) Photostat of an extract from the electoral roll showing A' Iul Manan entered at No. 7655 as voter in the Marriabad, Quetta.
(3) A photostat of the Certificate showing that one Abdul Manan (parentage not shown) was issued a ballot-paper from Book No. 160001-160100 used for Ward No. 7.
(4) Photo copy of the electoral roll prepared for Ward No. 7 Union Committee D and H of Quetta Municipal Committee.
The petitioner also filed a- list of four witnesses and desired that (1) a representative of the Returning Officer, Local Government, Quetta be called with original record containing ballot-paper book No. 16000 16100 used for election of Ward. No. 7 Halqa No.10 Municipal Cor poration, Quetta alongwith electoral roll of that Ward. (2) Represen tative of the Registration Office of National Identity Card, District Registrar Office, Pishin with original record pertaining to the National Identity Card No. 604-52-024799 in the name of Abdul Manan son of Haji Faiz. (3) Presiding Officer, District Quetta for male polling booth, Ward No. 7 Halqa No. 10 with regard to and in respect of the ballot paper issued to Abdul Manan. (4) Muhammad Raza son of Muhammad Jumma, Saidabad, Alamdar Road, Ward No. 7 Halqa No. 10, be sum moned and the diet money for these witnesses was also paid on 6th December, 1983. From the perusal of the record of the Election Tribunal, Quetta it was noticed that on 14th December, 1983 two witnesses namely Riaz Mehdi and Zahid Majeed were in attendance but their statements could not be recorded as they had not with them the relevant record which was required to be produced. The case was, therefore, adjourned to 7th March, 1984 but on 7th March, 1984 the counsel for the petitioner expressed a desire that he would argue the petition only on law points as such no witness was thereafter summoned and the matter was argued and the petition was dismissed. The minutes of the proceedings recorded on 14th December, 1983 and 7th March, 1984 are reproduced :-
4. The considerations which weighed with the learned Election Tribunal, Quetta were (i) that the documents produced on behalf of the petitioner showing that respondent No. 1 being entered as voter and had used his vote in the Quetta City election stand contradicted by the certifi cate issued from the Election Officer, Quetta Municipal Corporation. This certificate is couched in the words and is reproduced :-
"No. F. 4 (4)/5-EOQ
OFFICE OF THE
DISTRICT ELECTION OFFICER
QUETTA
Ist November, 1983.
Certificate
Certified that Mr. Abdul Marian son of Haji Faiz Muhammad H. No. 7/65/32 Murri Abad, Quetta does not exist in Electoral Rolls, 1979 of Ward No. 7 Quetta City till now.
(Sd.)
(Muhammad Aslam)
Election Officer
Quetta : Phone 72695"
(ii) That the election petition is not covered with any ground for which the election can be declared void and the respondent No. 1 fulfilled the qualifications laid down in section 20 of the Baluchistan Local Govern ment Ordinance, 1980 as amended.
5. The learned counsel for the petitioner has repeated the same allegations before us and has contended that the respondent No. 1 having been entered as voter in the electoral rolls for Quetta City and having cast his vote was not qualified to be a candidate from the Union Council Alizai and in support of his contention has placed reliance on section 25 of the Electoral Rolls Act, 1974. The learned counsel has also complain ed that the learned, Election Tribunal in his judgment did not consider the question of applicability of section 25 of Electoral Rolls Act, 1974 which was pointed out during the course of arguments by the counsel for the petitioner. (It is noteworthy that the petitioner had engaged Mr. Sakhi Sultan Advocate in the Election Petition while this contention is raised by Mr. Yahya Bakhtiar who had no occasion to make any submission before the Election Tribunal). Mr. Yabya Bakhtiar further submitted that the documents placed before the Election Tribunal were sufficient for a finding that respondent No. 1 was a voter from Halqa No. 10 of Quetta City and had cast his vote and the denial of respondent No. 1 as well as the certificate issued by Election Officer (J-I) were patently false.
6. Besides some preliminary objections raised on behalf of the respondent No. 1 in the rejoinder the facts that he was enrolled as a voter in the Ward No. 7 of Halqa No. 10 of Quetta City and that he had participated in the election by casting his vote were denied and it has been urged that the factual controversy raised before Election Tribunal was not litigated, and no evidence to sub stantiate the plea and prove the document tendered by the petitioner was placed rather the petitioner abandoned the proof: The finding of the learned Election Tribunal was. therefore, the only finding that could be reached. It was also pointed out that in the face of the identity card having been issued to him by the authorities showing him to be resident of Alirai it was not possible for him to utilize the same for voting at Quetta. It has also been asserted that after the election was over as per Rules the entire record is to be kept with the Treasury Officer who alone being the custodian of the record could be approached for the copies of the documents. The document Annexure "E" on the face of it appears to be incomplete and was not issued by an authorised person, and in that connection he has even doubted the signatures of the Deputy Commissioner-cum-Returning Officer. It has been vehemently urged by the counsel for the respondent No. 1 that even if for the sake of dis cussion it is assumed that the name of his client was found entered in the electoral roll in Ward No. 7 of Quetta City he would not be disqualified for election. The qualifications and disqualification have been laid down in sections 20 and 21 of the Baluchistan Local Government Ordi nance, 1980 and since the allegations of the petitioner against the respondent No. 1 are not covered by these provisions the Election Petition was not maintainable and has been correctly dismissed.
7. We have perused the record of the Election Tribunal and have found that the facts mentioned in para. 3 of this judgment are borne out from the record. We have compared the certificate (Annexure "E") in respect of ballot-paper for Halqa No. 10 and the ballot-paper for Ward Union Council Alizai (Annexure '1G"), material omissions are found in Annexure "E" particularly the number of counter-foil of ballot-paper has not been shown and at the top of the certificate book number only has been mentioned, which particular ballot-paper from the book containing papers 16000 to 161000 was issued to Abdul Manan has not been shown. We have also noticed the requirement of law that a voter before he could be issued a ballot paper to case vote has to establish his identity and for that purpose he has to produce his identity card which in the present case was not possible for Abdul Marian to establish for securing a ballot-paper for Quetta City Election as he was holder of an identity card which showed him to be the resident of Alizai and not Quetta and unless Abdul Marian was devoid of common sense and the election authorities ignorant of these rules Abdul Manan could not successfully cast his vote. We entertain serious doubts in our minds about the correctness of certificate (Annexure "E"). The Certificate Annexure "J/1" runs counter to the Electoral Roll D/1. All these documents are issued by public functionaries which of them is correct could only be established by actual proof to bed furnished before the Election Tribunal which right the petitioner himself has waived. No definite finding, therefore, is possible. No fault to the observations of the learned District Judge-cum-Election Tribunal can, therefore, be found.
8. There is another aspect of the case and it is as pointed out by the learned counsel for the respondent No. 1 which fact has not been denied by the petitioner that nomination paper of the respondent No. I from Ward No. I of the District Council Pishin was at one stage rejected and he had to approach the High Court wherein Saleh Muhammad, the present petitioner was one of the contesting respondents. He could raise this very objection earlier in the High Court and rely on the objection now being raised against the acceptance of the nomination papers of Abdul Manan (respondent No. 1) but he kept himself mum in the High Court. Now he cannot be allowed to raise this objection. The electoral rolls containing the name of Abdul Manan as alleged by the- petitioner was found in the electoral roll of Ward No. 7 Halqa No. 10 Quetta Municipal Corporation was there. The Election of Quetta Municipal Corporation had already been held on 31st August, 1983 and the rejection of the nomination paper of respondent No. 1 from Alizai was under scrutiny in the High Court on 4th September, 1983. The legal position in this behalf is very clear. A party to a proceeding is required by law that all plea which are available to it, it must take at the time of adjudication, it can not urge one plea at one time and take another plea at another time and this is based on the principle that none should be vexed twice for the same cause. We are, therefore, of the firm opinion that the plea raised against the respondent No. 1 before the Election Tribunal could not be allowed to be raised and the objection in that behalf by , the learned counsel for the respondent No. 1 before us is sustained.
9. The learned counsel for the petitioner has stated before us that the respondent No. l has misrepresented the facts before the Election authorities and has fraudulently obtained the certificate (Annexure "J/1"). We are unable to subscribe to this view. Misrepresentation and frau are not the terms which can be used loosely or glibly. These are the words of great import and carry grave consequences in law and morality. These cannot be used against people without proper proof. These have to be alleged, evidence led and then examined and adjudged. Nobody has appeared before the Election Tribunal to say that the respondent No. 1 actually appeared before the polling officer at Quetta to cast his vote. Rather the presumption is against the petitioner. He has purposely abandoned proof and did not examine the witnesses to prove the facts alleged by him against the respondent No. 1. The objection of the learned counsel that the learned Election Tribunal did not consider then contentions raised before him need not be gone into as points not discussed in judgment are presumed to have been abandoned. There is yet another reason for repelling the contention of the learned counsel for the petitioner and it is that the Election Tribunal has not been made party before us and has been purposely not impleaded in this petition. The allegation against the Election Tribunal is thus not worthy of any serious consideration.
10. There remains to be considered the basic contention of the learned counsel that the double entry of the name of respondent No. 1 in Quetta City and Alizai could operate as a disqualification, it would, therefore, be pertinent to reproduce the provisions of section 25 of the Electoral Rolls Act, 1974 and the qualification and disqualification of the members as laid down in the Baluchistan Local Government (Election) Rules, 1983. Section 25 of the Electoral Rolls Act, 1974 reads ;-
25. No person to be enrolled more than once or in more than one electoral area :-
No person shall be enrolled :-
(a) on the electoral roll for any electoral area more than once ; or
(b) on the electoral rolls for more than one electoral area."
Sections 20 and 21 of the Baluchistan Local Government Ordinance, 1980 are reproduced as under :-
"20. Qualifications of candidates and members.-Any person shall be qualified to be a candidate for the election, of a Local Council if for the time being his name appears on the electoral rolls of the local area of that Local Council".
"21. (1) Disqualification of a candidate.-A person shall be disquali fied to be a candidate of a Local Council if he :-
(a) ceases to be a citizen of Pakistan ;
(b) is an undischarged insolvent ;
(c) is of unsound mind and has been so declared by a competent Court ;
(d) is a whole-time salaried official of the Federal Government or Provincial Government or of a public or statutory corporation, a local council or other local authority ;
(e) has been on conviction for an offence involving moral turpitude, sentenced to imprisonment for a term of not less than six months ;
Explanation : Moral turpitude means anything that injures the moral fibre of a person and lowers him down in moral values.
(f) has been dismissed as a public servant within the meaning of Pakistan Penal Code (Act XLV of 1860) ;
(g) is a retired servant of the Federal Government or a Provincial Government or of a public or statutory corporation, a local council or other local authority., unless two years have elapsed from the date of such retirement.
(h) is under contract for work to be done or goods to be supplied to the local council concerned or has otherwise any pecuniary interest in its affairs ;
(i) is disqualified from the membership of any elective body under any law for the time being in force ; and
(j) has been or is engaged directly or indirectly in subversive or anti-State activities or propagating any opinion or acting in any manner prejudicial to the ideology of Pakistan or the sovereignty, integrity or security of Pakistan.
Explanation : Anti-State activities shall include, instigation to students, labourers or any other sections of people with a view to promote lawlessness or disorder."
It is evident that the case of the respondent No. 1 does not fall under section 21 of the Baluchistan Local Government Ordinance and he fulfils the requirements laid down in section 20 thereof as he is of above 21 years of age and his name appears on the electoral roll of the local Area of Alizai Council. It is also significant that in section 25 of the Electoral Rolls Act; 1974 no consequences for getting a person enrolled on the electoral rolls for more than one electoral area has been provided. It cannot, therefore, be urged that the inclusion of the name of a person in more than one electoral rolls for more than one area shall entail consequences that he will not be entitled to vote or to contest from any one of the electoral rolls area no contention is directly covered' by the decision of the Supreme Court in Dr. Babar Hameed Chohan v. Muhammad Afzal Munir and 2 otheis (1984 S C M R 537) and the contention was repelled. Their Lordships of the Supreme Court while examining the provisions of section 25 of the Electoral Rolls Act, 1974 pointed out that the section bars the enrolment of a person more than once or in more than one electoral area only. The consequences of double enrolment has not been made a disqualification under this section or in the Act itself. It is hardly necessary to point out the law enunciated by the Supreme Court is binding on us.
11. No other point was urged before us.
The upshot of the above discussion is that the petition fails and is accordingly dismissed with costs.
M. Z. M. Petition dismissed.
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