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Petitioner: Sh. ABDUL HAMID VS Respondent: PRESIDENT, CANTONMENT BOARD AND OTHERS
Court Name: Lahore High Court Judge(s): Rustam S. Sidhwa, Malik Lehrasab Khan Title: Sh. ABDUL HAMID vs PRESIDENT, CANTONMENT BOARD AND OTHERS Case No.: Writ Petition No, 427 of 1903 Date of Judgment:1983-12-06 Reported As: 1984 CLC 592 Result: Petition dismissed
JUDGMENT
JUDGMENT ' RUSTAM S. SIDHWA J--This is a constitutional petition filed by Sheikh Abdul Hamid, petitioner, requesting that the order of the Returning Officer, Cantonment Board, Rawalpindi, respondent No, 2, dated 9th October, 1983 and that of the President, Rawalpindi Cantonment Board, respondent No, 1, dated 23rd October, 1983 rejecting his nomination papers for standing as a candidate for election as member of the Cantonment Board, Rawalpindi, from Ward No, 3, be declared to be without lawful authority, that the said respondents be directed to include the petitioner's name in the list of contesting candidates and that he be allowed to participate in the election, subject to the decision of this Court on this petition. 2. The brief facts of the case are that Sheikh Abdul Hamid, petitioner, son of Sheikh Abdul Aziz, resident of house No, 3054/B, Police Station Road, Saddar, Rawalpindi Cantonment (electoral Ward No, 3), stood for election to the Cantonment Board, Rawalpindi, in 1979. At that time, his name was borne on the electoral roll of Ward No, 3 of the Cantonment Board, Rawalpindi. He won the said election and his name was notified in the Gazette of Pakistan published on 21st October, 1979 (Annexure 'A' to the petition). He was elected as Vice-President of the Cantonment Board, Rawalpindi, and held that office for four years, whereafter, due to a vote of no-confidence passed against him on 2nd August, 1983 he lost his office as Vice-President. In 1983, the petitioner again submitted his nomination papers for election from the said Ward No, 3 to the seat of the Cantonment Board, Rawalpindi, to be held on /.6th October, 1983. On 9th October, 1983 the petitioner's nomination papers, as well as that of his rivals, was scrutinized by the Returning Officer, Cantonment Board, Rawalpindi, respondent No, 2. The petitioner's nomination papers were rejected by respondent No, 2 with the following observations :-
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Objection raised as under :- (1) Name not included in Electoral Roll "withheld". (2) Office-bearer of defunct P. P. P. "withheld". (3) Misconduct while member of elected body "withheld". Rejected. ' On 10th October, 1983 the petitioner preferred an appeal before the President, Cantonment. Board, Rawalpindi, respondent No, 1, against the order of respondent No, 2. Respondent No, I accepted the petitioner's contentions, rejected the objections of respondent No, 2, but again rejected the nomination papers on a fresh ground, by a short order, dated 13th October, 1983 reads as follows :- "Appeal rejected on the 'basis of having pecuniary interest in the Board and its affairs." ' The petitioner challenged the above order of respondent No, 1 through Writ Petition No, 397 of 1983, whereas Bashir Ahmad, respondent No, 3, challenged the same through Writ Petition No, 404 of 1983. During arguments in the said writ petitions, which were consolidated for hearing, Mr. Bashir Ahmad Ansari, Advocate for the Cantonment Board, Rawalpindi, conceded that the order of respondent No, 1. To the extent that it rejected the appeal of the petitioner on the basis that he had pecuniary interest in the Board and its affairs, could not be legally sustained. However, since respondent No, 1 had not discussed the three grounds which the respondent No, 2 had found against the petitioner, both the writ petitions were accepted by this Court and the appeal, of the petitioner was remanded to respondent No, 1 for a fresh decision in accordance with law, after hearing the parties Concerned and paying due attention to the grounds held against the petitioner by respondent No, 2. The parties were directed to appear before respondent No, 1 on 23rd October, 1983 who was directed to hear and decide the appeal the same day. The parties accordingly appeared before respondent No, 1 on 23rd October, 1983 who, after hearing them, again rejected the nomination papers of the petitioner on three grounds, as stated in his order of that date (Annexure 'H' to the petition). Being 'aggrieved by the said order, the petitioner has preferred the present writ petition, which is now before us for disposal. At this stage it may be stated that on 24th October, 1983 when the present writ petition was admitted, it was noticed that the election was to be held on 26th October, 1983 and since it was not possible to decide the petition before the said date, the Court directed respondents Nos. I and 2 to permit the petitioner to contest the election to the seat of Ward No, 3, with the condition that the result of the election would be subject to the decision of this Court. It was also directed that in case the petitioner was duly elected, the announcement of the result would be withheld and his name would not be notified, till the decision of this Court, and that in case any respondent was elected, the result would be declared and his name notified. Pursuant to the said order, the elections were held on 26th October, 1983 and the petitioner secured the highest number of votes, namely, 1052, but the declaration of the result has been kept in abeyance, pending the final decision of this writ petition. 3. On behalf of the petitioner, Maulvi Siraj-ul-Haq, Advocate, has addressed us in the matter and painstakingly dealt with the three grounds on which the petitioner's nomination papers have been rejected by respondent No, 1. With regard to the first ground on which the papers have been rejected, it is submitted that in the 1979 electoral roll of Ward No, 3, Cantonment Board, Rawalpindi, the name of the petitioner was wrongly shown at serial No, 1583 as "Abdul Majid", that the petitioner had made an application to the Additional Executive Officer, Cantonment Board, Rawalpindi, who exercised the powers of the Registration Officer for having the mistake corrected, which being accepted, the said correction was passed to the Election Officer I, Rawalpindi, who was the competent authority, who had noted the correction of his name on his record, vide his order, dated 23rd September, 1979 (annexed A/1 to the petitioner's C. M. No, 574 of 1983). It is submitted that pursuant to this order, the Correction Sheet to the electoral roll of Ward No, 3 was also printed in 1979, as per the electoral correction sheet (attached with the petitioner's C. M. No, 641 of 1983), which stands confirmed by the certificate of the Election Officer I, Rawalpindi, dated 1st December,
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1983 (attached with the petitioner's C. M. No, 641 of 1983). It is contended that in the light of this amendment, the petitioner contested the previous election from Ward No, 3 to the Cantonment Board, Rawalpindi, which election he won and his name was notified in the Pakistan Gazette on 21st October, 1979 (Annexure 'A' to the petition). It is further submitted that the electoral roll of Ward No, 3 of the Cantonment Board, Rawalpindi, prepared for the 1983 elections by the Election Commission of Pakistan comprised the original electoral roll prepared in 1979 with the correction sheets prepared in 1979 and 1983, which were delivered to the Rawalpindi Cantonment Board for the preparation of its electoral rolls, but due to some misadventure, the Cantonment Board, when preparing its own roll for Ward No, 3, did not incorporate therein the amendments brought about by the correction sheets of 1979, with the result that the name of the petitioner still appeared as "Abdul Majid", instead of "Abdul Hamid". Nevertheless, it is stated that the petitioner informed the Returning Officer that he had previously been elected as a member from the same Ward on the basis of the same entry in the 1979 election, that the entry No, 1583 in the electoral roll of Ward No, 3 (Annexure "c' to the respondent No, 3's written statement) actually related to him, that the error in the entry was a misprint, that he had had the said error corrected in 1979, which was not brought forward, in the electoral roll, and that there was no other person bearing the name Sheikh Abdul Majid in their house No, 3054/B at Police Station Road, other than himself, all of which submissions were illegally rejected by the respondents. It is further submitted that under Rule 12(3) of the Cantonments (Elections and Election Petitions) Rules, 1979, the Returning Officer had to make a summary inquiry to determine whether the petitioner was ineligible for election and if the objectors had the right of showing that the petitioner was ineligible for election, it did not debar the petitioner from proving his eligibility and since the entry of the petitioner in the electoral roll did not totally establish his eligibility, he had a right to establish the same by evidence aliunde, which was not permitted. In this connection, it is submitted that under section 15-B(1) of the Cantonments Act, 1924, a person, in order to be eligible for membership, has to show that (i) he is not less than 21 years of age on the first day of January, preceding the election, (ii) his name is recorded in the electoral roll of the ward from which he seeks election and (iii) he is not subject to any disqualification for being elected as, and for being, a member of the Can torment Board. Since these statutory requirements cannot ex facie be established from the entry in the electoral roll, parties have a right to produce evidence aliunde to estabilsh their case. What is only sacrosanct about an electoral roll and which the Returning Officer cannot go into is that the electoral roll is invalid or that the persons named therein are not entitled to vote. The question whether a candidate fulfils all the qualifications required to stand as to candidate, the Returning Officer has to examine all these matters by going into material provided by the opposing parties, over and above the electoral entry. Material particulars going to the root of a candidate's qualification may be incorrectly or defectively entered in the electoral roll. This cannot prevent the Returning Officer from looking into the truth of the matter or the candidates or the objectors from establishing their respective cases. Since the qualifications for eligibility are prescribed under section 15-B (I) of the Cantonments Act, 1924, they being statutory requirements, the Rules cannot prevent the Returning Officer from entertaining material and going into the same, for any such interpretation would be ultra vires of the Act. With regard to the second ground on which the nomination papers were rejected, it is submitted that the disqualification provided by Article 10(2)(b)(7-a) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1979, is only applicable if, on the date of the submission of the nomination papers, a person is found to be a member of a political party and since there was no material at all either before respondents Nos. 1 and 2 to show that the petitioner still continued to be a member of the Pakistan People's Party, he could not be disqualified under the said Article. In this connection, it is submitted that under Martial Law Regulation 48, all the Political Parties were banned and members of all political parties were even prevented from holding
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themselves out as such members and, in these circumstances, it could not be stated that the petitioner was a member of the Pakistan People's Party on the date of the submission of the nomination papers. In this respect it is also stated that the petitioner had served all his relations with the Pakistan People's Party in 1976-77, that he had no such relation with it when he stood for elections to the Cantonment Board seat in 1979 and that since 1976 he has had no connection whatsoever with the said political party till date. Since there was no material whatsoever with respondents Nos. 1 and 2 to show that he had at any time from 1976 till the date the nomination papers were filed, any connection with the Pakistan People's Party, he could not have been disqualified on this ground. With regard to the third ground on which the nomination papers were rejected by respondent No, I, it is submitted that Mr. Bashir Ahmad Ansari, Advocate, appearing for the Rawalpindi Cantonment Board, in the earlier Writ Petition (W. P. No, 397 of 1983) filed by the petitioner, had conceded that the order passed by respondent No, 1 on the basis of this ground was illegal and not sustainable, yet it appears that respondent No, I again reasserted the said ground for rejecting the petitioner's nomination papers. In this connection it is submitted that there was no material before respondent No, 2 to show that the petitioner had any existing contract or pecuniary relationship with the Cantonment Board on the day of the submission of the nomination papers, which could have entitled the said respondent to disqualify the petitioner on that ground. As regards this ground found by respondent No, 1, it is submitted that in 1980, the President of Pakistan had visited the Cantonment Board to inaugurate the Zakat and Usher Committee, when the President of that Committee requested the petitioner, who was then Vice-Chairman of the Cantonment Board, to arrange for Shamianas etc., in his private capacity, which was done, but since the Zakat and Usher Committee did not have any funds at its disposal to pay for the hire of the said Shamianas and furniture, the Cantonment Board had agreed to pay the amounts. In any event, that chapter stood closed in 1982, whereafter no such transaction took place or any contractual relationship came into effect between the petitioner and the Cantonment Board. In these circumstances, it is submitted that the petitioner was wrongly disqualified on this ground. In the light of these submissions, it is finally submitted that the petitioner's nomination papers were illegally rejected by both respondents Nos. 1 and 2, that their action should be declared illegal and without lawful authority, that the nomination papers submitted by the petitioner should be deemed to have been illegally rejected and that since the petitioner had secured the highest votes in the election held on 26th October, 1983 that he should be declared as duly elected. 4. On behalf of the President, Cantonment Board, Rawalpindi, and the Returning Officer, respondents Nos. 1 and 2, Mr. Bashir Ahmad Ansari, Advocate, has addressed us at some length. He has supported the three grounds on which respondent No, 1 refused to accept the nomination papers of the petitioner. With regard to the first ground on which respondent No, 1 refused to accept the nomination papers, it is submitted that under section 15-A of the Cantonments Act, 1924, the Cantonment Board prepared its electoral rolls on the basis of such rolls pertaining to its Cantonment as were prepared under section 4 of the Electoral Rolls Act, 1974, by the Pakistan Election Commission, that after such electoral rolls were prepared, such of the persons that desired amendments to be made therein, made applications to the Cantonment Board, which applications were processed, that no application was made by the petitioner for making any changes relating to his particulars in the electoral roll of Ward No, 3 and that, therefore, it must be assumed that entry No, 1583 in the Electoral Roll of Ward No, 3 relating to Sheikh Abdul Majid was correct and related to a person bearing that name and that the said entry did not relate to the petitioner. It is further submitted that entries in the electoral rolls must be treated as sacrosanct and that both the Returning Officer and the President were bound to accept the same, as they stood, and could not go behind them. In this connection it is submitted that section 15-B of the Cantonments Act, 1924, which prescribes the qualifications for membership, states that a
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candidate must be a person whose "name appears for the time being on the electoral roll of the ward from which he seeks election" and the words "for the time being" mean the entry of that candidate in the electoral roll as it stands on the date when the nomination papers are filed and are being scrutinized. If this rule is not adhered to, it is stated that it would be impossible to determine whether a person was a "duly qualified person to be a candidate" for the purposes of Rule 10 of the Cantonments (Elections and Election Petitions) Rules, 1979. It is next contended that the petitioner attempted to secure an amendment to the electoral roll in September, 1983 by submitting an application in that respect, which the Election Officer 11 forwarded to the Registration Officer on 25th September, 1983 (Annexure 'A' to the written statement filed by respondent No, 3), but since the petition was submitted late and the elections were due, the same was rejected. It is submitted that the petitioner could not take advantage of the earlier amendment made by the Election Commission to the electoral roll in 1979 regarding the correction of the petitioner's name therein. It is further contended that respondents Nos. 1 and 2 were persons competent to go into the question whether a particular entry in the electoral roll related to a particular candidate and since the Returning Officer, after a summary inquiry, and the President, Cantonment Board, in appeal, after going through the necessary documents that were produced before him, held that entry No, 1583 in the electoral roll of ward No, 3 did not apply to the petitioner, the said disputed question of fact could not be allowed to be canvassed by this Court. In this regard it is submitted that this Court should not permit itself to become a Court of inquiry into the disputed questions of fact or questions relating to the sufficiency or otherwise of evidence required to prove a particular matter. In this respect Muhammad Sharif v. Muhammad Afzal Sohail and others (1), Abdul Rehman Bajwa v. Sultan and others (2), Muhammad Hussain Munir v. Sikandar and others (3) and Khadim Mohy-ud- Din and another v. Ch. Rehmat All Nagra and others (4) have been referred. With regard to the second ground on which the nomination papers of the petitioner were rejected by respondent No, 1, it is submitted that the petitioner was elected as the General Secretary of Ward Committee, Sadar Bazar, of the Pakistan People's Party in 1976, as is apparent from Clippings of the Roznama hug, dated 14th December, 1976 (Annexure "J") to the written statement of respondent No, 3) and that he continued to hold that office till 1978, as is apparent from clippings of Roznama Nawa-e-Waqt, dated 12/13th August, 1979 and Roznama Taamir dated, 6th October, 1979 and copy of the F.I.R. Filed by the petitioner at Police Station Rawalpindi Cantonment on 7th April, 1977 (Annexures "3", "e", "r", {{URDU TEXT}} to the written statements of respondent No, 3). Various photographs taken in 1976 showing the petitioner with office bearers and members of the Pakistan People's Party, which were filed before respondents Nos. 1 and 2 were also alluded to. In view of this position, it is submitted that the petitioner stood disqualified for being a candidate by virtue of section 15-B (2) (g) of the Cantonments Act, 1924, read with section 21(1)(h) of the Punjab Government Ordinance, 1979. With regard to the assertion that the petitioner was an active member of the Pakistan People's Party till 1979, copies of photographs and clippings from newspapers from the file of respondents Nos. 1 and 2 were shown to show (1) PLD 1981 SC 246 (2) PLD 1981 SC 522 (3) PLD 1974 SC 139 (4) PLD 1965 SC 459 that the petitioner was not only the General Secretary, Ward Committee, Saddar Bazar, of the Pakistan People's Party in 1976, which position he continued to maintain till 1979, but even after the Cantonment Board's Elections of 1979, he was profusely referred to in all Urdu newspapers as the Pakistan People's Party's candidate who had won the Cantonment Board seat. In these circumstances, it is submitted that there was sufficient material before respondents Nos. 1 and 2 to reject the nomination papers of the petitioner on the second ground. With regard to the third ground on which the nomination papers of the petitioner were rejected by respondent No, 1 it is submitted that even assuming, though not admitting, that the petitioner was not guilty of
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misconduct covered by the ground held against him by respondent No, 1, but being guilty of immoral conduct within the meaning of Article 10(2) (aaa) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, his nomination papers were validly rejected. In this respect it is submitted that a number of inquiries were held against the petitioner with regard to complaints received by the President, Cantonment Board, Rawalpindi, against him and that a vote of no-confidence was also passed against him on 2nd August, 1983, as a result of which the petitioner ceased to be the Vice-President of the Cantonment Board. It is, therefore, urged that the petitioner's conduct had all along been immoral, in that he had acted in a demeaning manner and against all ethics required of a person who holds an elective office. Citing M. Saifullah's case, it is stated that the word "morality", as used in Article 10 (2) (aaa) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1979, is not used in a narrow sense, but in a general sense, "such as the law of conscience ; the aggregate of those rules and principles of ethics which relate, to upright behavior and right conduct of elected representatives and the prescribed standards to which their actions...Should conform in their dealings with each other or with institutions or the State". 5. On behalf of respondent No, 5, Sh. Zamir Hussain, Advocate, whilst adopting the arguments of the learned counsel for the respondents Nos. 1 and 2, submits that since the petitioner had himself in September, 1983 filed an application for the correction of his entry in the electoral roll of Ward No, 3, which application was refused, and since he has not challenged the rejection order passed on the said application in this writ petition, he cannot now assert that entry No, 1583 should be read differently. In these circumstances, it is submitted that entry No, 1583 in the electoral roll, as presently appearing, has to be accepted, according to its tenor. 6. On behalf of respondent No, 3, Mr. Habibul Wahab-ul-Khairi, Advocate, whilst adopting the arguments of the learned counsel for respondents Nos. 1 and 2, further submits that the petitioner has not come to Court with clean hands, that initially he had not lodged relevant documents with his writ petition, that at each stage he had continued to lodge various documents to show the correction of his entry in the electoral roll of Ward No, 3 in 1979 and that the electoral correction sheet printed by the Election Commission of Ward No, 3 in 1979 is a forged and fabricated document. It is submitted that the electoral correction sheet of 1979 relating to Ward No, 3, which purports to be printed by the Shadab Printing Press, was not so printed by them, according to the information receive- (1) PLD 1982 Lah. 77 end by him, and that this document has been manufactured by the petitioner with the connivance of the staff of the Pakistan Election Corn-mission and introduced in the case in support of the writ petition. 7. Maulvi-Siraj-ul-Haq, Advocate, whilst replying to the contentions raised by the learned counsel for the respondent, submits that the petitioner cannot be disqualified on the basis of section 15-B (2) (g) of the Cantonments Act, 1924, read with section 21 (l) (h) of the Punjab Local Government Ordinance, 1979, as the said ground was not raised before respondents Nos. 1 and 2, nor any of the said officers rejected the nomination papers of the petitioner on this ground. It is submitted that the petitioner's case should be dealt with on the basis of the grounds found against the petitioner by respondents Nos. 1 and 2 and not on the basis of the fresh ground now urged against him. It is further submitted that the disqualification contained in section 22 (1) (h) of the 1979 Ordinance does not apply to the petitioner's case, as, by virtue of the first proviso to that clause, the petitioner, being an earlier elected member of the Rawalpindi Cantonment Board, stood excluded from the said disqualification. In this connection it is submitted that the words "Local Council under this Ordinance", as appearing in the said first proviso, should be read as "of any Local Council under any elective law" or as "of any Cantonment Board under this Act". As regards the submission of the
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learned counsel for respondent No, 3 that the petitioner had…
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