TALAAT QAYUM QURESHI, J.---Petitioners through writ petition in hand have called in question the judgment/order of Election Tribunal dated 8-5-2004 being illegal, void without lawful authority and of no legal effect.
2. Barrister Syed Masood Kausar, the learned counsel representing the petitioners argued that the Election Tribunal has acted in excess of jurisdiction by ignoring material evidence produced by the petitioners at the trial. The petitioners had placed on record copy of Matriculation Certificate and opinion of the Doctor which showed that date of birth of petitioner No,1 (Tehmash Khan) was 28-6- 1975, hence he was qualified to contest election being more than 25 years old.
3. It was also argued that Election. Tribunal has committed serious illegalities by not rejecting the Election Petition for non-compliance of the mandatory provisions of Ordinance XIV of 2001 and Rules framed under Ordinance VI of 2000.
4. It was also argued that the learned Tribunal failed to appreciate that the appeal filed by the petitioners against the rejection of their Nomination Papers was accepted by the Appellate Authority regarding the age of the petitioners, but the findings of the Appellate Authority were altogether ignored.
5. We have heard the learned counsel for the petitioners at length and perused the available record.
6. The admitted position in this case is that the petitioners on 29-5-2001 filed their Nomination Papers for the Office of Nazim and Naib Nazim of Union Council Haryana Payan respectively before the Returning Officer. It was during the scrutiny held on 6-6-2001 that petitioner No,1 was found not of 25 years of age, hence their Nomination Papers were rejected. Being aggrieved with the rejection order, petitioners filed appeal before the District Returning Officer (Appellate Authority), which was allowed and the petitioners were declared eligible to contest election. They accordingly contested the election held on 2-7-2001 and having secured the highest number of votes were declared successful. Respondents Nos. 1 and 2 challenged the election of petitioners before the Election Tribunal, respondent No,13. One of the grounds taken by respondents Nos.1 and 2 in their election petition was that the petitioners were not, qualified to contest election as petitioner No,1 was not of 25 years of age on the date of filing of Nomination Papers. The said petition was resisted by the petitioner by filing written statement. The learned Election Tribunal after recording pro and contra evidence of the parties and after hearing the learned counsel representing them accepted the petition and the result of the election of petitioner No,1 (Tehmash Khan) was set aside with the direction to conduct fresh Election vide judgment/order dated 17-4-2004.
7. The question that requires consideration in this case is that as to whether petitioner No,1 was below 25 years on the day of filing of the Nomination Papers, if so the petitioners were disqualified to contest election, answer to this question is in the affirmative. Qualifications for candidates and elected members of the Office or Membership of Local Government has been provided in section 14 of the Local Government Election Ordinance, 2000. According to section 14(b) the minimum age required to contest election is at least 25 years. The burden to prove that he was of 25 years of age on the day of filing of Nomination Papers was on petitioner No,1 but the said burden was discharged by respondents Nos.1 and 2 by examining Mukhtiar Khan Registration Supervisor NADRA Peshawar as P.W.1 who placed on record photo ropy of Form 'Alif' Exh.PW1/1, according to which date of birth of petitioner No,1 was recorded as 28-6-1976. Noor Muhammad Incharge Assistant Certificate S.S.C. Was examined as PW-2 who placed on record Admission Register pertaining to the year 1992, copy whereof was placed on record as Exh.PW2/1 and Certificate Exh.PW2/2. These two documents show that the date of birth of petitioner No,1 was 28-6-1975. Gohar Ali was examined as P.W.3 who stated that date of birth of Tehmash Khan was 28-6-1976 and he was less than 25 years on the day of filing of Nomination Papers.
8. In rebuttal Tehmash Khan was examined as R.W.1. He placed on record Nomination Papers Exh.RW1/1 and stated that his date of birth was 28-6-1975 and he was more than 25 years on the date he filed Nomination Papers. He also placed on record copy of Secondary School Certificate Exh.RW1/DX-1. Haji Nawab Ali was examined as R.W.2 Malik Safdar was examined as R.W.3 and Nadir Khan as R.W.4.
9. The perusal of the evidence available on record shows that respondents Nos.1 and 2, who were petitioners before the Election Tribunal Peshawar had placed on record copy of Form Alif' Exh.P.1/1 showing the date of birth of Tehmash Khan as 28-6-1976. This document was admitted in evidence without any objection from the petitioners' side. They also placed on record copy of Admission Register pertaining to the year 1992 Exh.PW.2/1 and Certificate Exh.PW.2/2 filed by Head Master of the concerned School, which shows the date of birth of Tehmash Khan as 28-6-1975. Copy of the Matriculation Certificate was also pined on record as Exh.P.W.2/DX-1. The documents Exh.P.W.2/1 and Exh.P.W.2/2 were not complete in original form as portion thereof have been eaten by white ants.
10. Before the learned Election Tribunal on the one side were the entries made in Form 'Alif'
Exh.P.W.1/1 on the basis of which Tehmash Khan petitioner No,1 had been issued National Identity Card and on the other hand were the entries made in the Admission Register, verification of Head Master Exh.PW.2/1 and 2/2 and on the basis of the said entries Matriculation Certificate Exh.PW.2/DX-1 had been issued. The learned Election Tribunal gave preference to the entries of From Exh.PW.1/1 on the basis of which the petitioner was issued National Identity Card. We have no reason to disagree with the findings of the learned Tribunal because the same is based on proper appreciation of law laid down by this Court as well as by august Supreme Court of Pakistan.
11. The question about the probative value of National Identity Card came up for hearing before the august Supreme Court of Pakistan in Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin (1988 SCMR 753) it was held:-- "We have heard the appellant who is present in person and the learned counsel for the respondent.
The appellant has contended that the learned Judge of the High Court had erred in law by failing to ascertain the age of the appellant from the National Identity Card. The National Identity Card is issued under section 5 of the National Registration Act of 1973. It is issued after full inquiry is made. It is a public document and has got probative value. Presumption of truth is attached to it and can be considered as an evidence. The assertion of the appellant herein is supported by the identity card as a corroborative evidence. On the other side, the respondent did not produce any evidence that the appellant is below 60 years of age." Same question again came up for hearing before the august Supreme Court of Pakistan in Mst.
Razia Khatoon through Legal Heirs v. Dr. Roshan H. Nanji and another (1991 SCM R 840) wherein it was held:-- "The probative value of the National Identity Card has been recognized by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which could have promoted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1973 (Act LVI of 1973) to declare on affidavits her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information under section 9 of the Act. The Act also makes penal by clause
(b) of section 11 making of any statement or furnishing of any information which is known or is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking." Applying the reasoning given by the august Supreme Court of Pakistan in Zulfiqar Ali v. Haji Kamal Hussain and 27 others (1995 CLC 1383) it was held by this Court:- "for evaluating the evidentiary value of Identity Card to the School certificates in the case in hand it is not difficult to conclude that they carry lesser probative value than the Identity Card. Unlike the Identity Card the entries made in the school record do not have the support of any statutory law nor, is, false information supplied to the school authorities, visited by penal action." A similar view was taken in Naheed Usmani v. Mst. Anwari Begum (1991 CLC 1774) and Master Muhammad Yaseen v. Moeenuddin (1990 CLC 703).
12. Keeping in view the above mentioned dicta laid down by the august Supreme Court of Pakistan and this Court, we are of the view that the entries in Form 'AU Exh.PW.1/1 on the basis of which National Identity Card was issued to Tehmash Khan petitioner No,1 have more probative value than the entries made in the Admission Register/Form Exhs.PW.2/1 and 2/2 on the basis of which Matriculation Certificate Exh.P.W.2/DX-1, was issued. We, therefore, find no merit in the writ petition and the same is hereby dismissed in limine.