MANZOOR-UZ-ZAMAN Versus RETURNING OFFICER , A. Rahim Kazi

AJMAL MIAN, J.‑‑ This petition is directed against the order dated 18‑11‑1987 passed by Respondent No.l upon appeal filed by Respondent No.3, whereby the petitioner's nomination paper for electoral area, namely, KMC Z`IC (East), Karachi, was rejected on the ground that the petitioner's name appears on the electoral roll of District Poonch in the Azad Jammu and Kashmir in addition to the electoral roll of the above KSIC Unit No.60. The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the present petition Mr. Farooq Naek, learned counsel for the petitioner has urged that the impugned order is not sustainable as the petitioner is a citizen of Pakistan and is an enrolled voter for the above KMC Unit No.60. In furtherance of his above submission he has submitted that factually the petitioner was born in Pakistan in 1960, got his education in Karachi and obtained domicile of Karachi. He, therefore, submits that he is citizen of Pakistan by virtue of his birth and in terms of section 4 of the Pakistan Citizenship Act, 1951 (hereinafter referred to as the Act) and also by virtue of section 14‑B, which provides that a person who being a subject of the State Jammu and Kashmir, has migrated to Pakistan with the intention of residing therein until such time as the relationship between Pakistan and that State is finally determined, shall, without prejudice to his status as such subject, be a citizen of Pakistan.

He has also referred to the following judgments, in support of his further submission that being enrolled as a voter in more than one electoral unit, is not a disqualification attached to a candidate in terms of section 37 of the Sind Local Government Ordinance, 1979 (hereinafter referred to as the Ordinance).

(i) Muhammad Afzal Munir v. Brig (Rtd. ) Iftikhar Ahmad Returning Officer and 2 others (P L D 1983 Kar. 76).

(ii) Dr. Babar Hussain Chohan v. Muhammad Afzal Munir and 2 others, (1984 S C M R 537).

In the above case the Hon'ble Supreme Court while dismissing a petition for leave against the above reported judgment of Division Bench of the Sind High Court observed that since the consequence of double enrolment in the form of disqualification has not been provided under section 25 of the Electoral Rolls Act, 1974, provision in section 15‑B(g) of the Cantonment Act, 1974 was not attracted and the Returning Officer had no jurisdiction to consider any objection with regard to the nomination of candidate which related to his registration in electoral roll in view of the bar contained in Rule 12 of Cantonments (Election and Election Petition) Rules, 1979.

3. Mr. Abdul Rahim Kazi, learned Additional Advocate General Sind, who has appeared for the official respondents has candidly submitted that in view of the factum that there is no disqualification provided in section 37 of the Ordinance about the double enrolment as a voter and also under the Rules, the Appellate Authority should not have rejected petitioner's nomination paper on the above ground.

4. Mr. Abdul Sattar, learned counsel for respondent No.3 is unable to urge anything contrary to what has been contended by the learned counsel for the petitioner.

5. We would, therefore, allow the above petition and declare the impugned order as being without lawful authority and of no legal effect. We would direct Respondent No.2 to accept the petitioner's nomination paper and to allocate a symbol for the election from the above KMC Unit No.60.

The petition stands disposed of in the above terms with no order as to costs.

H . B . T . /M‑445/ K Petition allowed.