MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Briefly stated the relevant facts giving rise to this petition are that the respondent No,3, Ahmed Bux filed nomination paper along with respondent No,4, in a panel for the post of Nazim/Naib-Nazim IJC-10 Ahmed Pur, Taluka Jacobabad, for the Local Council Elections 2005. The Returning Officer, held scrutiny and rejected their nomination paper with the following order:-- "ORDER 23-7-2005 Candidate for the post of Naib Nazim namely Ahmed Bakhsh appears to be aged about below 25 years. His date of birth as per NIC is 5-2-1981, therefore, he does not fulfill requirement of Rule 152(1) subsection (b) which says: Qualification for candidates and elected members.--(i)(b). A person shall qualify to be elected or to hold an elective office or membership of a Local Government if he is at least twenty five years of age. Therefore, nomination form is hereby rejected as it merits no consideration.
(Sd.) 23-7-2005.
(Suresh Kumar), Returning Officer, UC-9 to 15 of Taluka, Jacobabad."
2. The respondent Nos. 3 and 4 preferred appeal against the rejection of their nomination paper before the District Returning Officer, Jacobabad, on the following grounds:--
(1) The nomination paper was rejected on technical ground.
(2) The Respondent No,3, appears from very face and appearance and looks to.Be more than 25 years.
(3) The certificate of radiologist shows that his age is above 25 years.
(4) The law favors the contest of Elections."
3. The learned District Returning Officer, after hearing the learned Advocates for the parties recorded the fact that in the National Identity Card the date of birth of respondent No,3, Ahmed Bux, is shown as 5-2-1981 and on that basis his age comes to about 24 years and that on the basis of Radiologist report, his age is 25/26 years. The School Leaving Certificate produced by the Respondent No,3, showing the date of birth as 5-2-1980 was also taken note-of.
4. He further recorded the contention raised on behalf of petitioner to the effect that in the Electoral Roll prepared on 1st January, 2000, the age of appellant was shown 19 years and National Identity Card produced by him shows the date of birth as 5-2-1981. There was conflict in the date of birth shown in the School Leaving Certificates and the National Identity Card. The medical certificate was managed by the respondent No,3.
5. The learned Returning Officer, after considering the rival contentions held that the School Leaving Certificate issued by the Headmaster Government Primary School Khudadad Khan Tallani and countersigned by the Assistant District Officer (M) Elementary Jacobabad, shows the date of birth as 5-2-1980. It was further held that the report of Radiologist is based on modern technology, which shows age as 25/26 years. It was observed that the petitioner/objector failed to produce any document in support of his contention. He did not approve the rejection of nomination paper on the basis of date: of birth shown in the National Identity Card and observed that the School Leaving Certificate showing the date of birth as 5-2-1980 read with the report of Radiologist is sufficient to hold that the date of birth shown in the School Leaving Certificate should prevail over the date shown in the National Identity Card. With these findings/observations, District Returning Officer accepted the nomination paper and allowed the Respondents Nos.3 and 4 to contest the Local Bodies Elections, 2005.
6. Being aggrieved the petitioner has filed this petition contending that the documents filed by the Respondent No,3, himself with his nomination paper, i,e, copy of National Identify Card and Electoral Roll are sufficient proof of the fact that his age is below 25 years. No reliance can be placed on report of Radiologist, as it was managed from some private clinic and was subsequently got countersigned by the Civil Surgeon, Civil Hospital, Jacobabad. It was also alleged that the School Leaving Certificate produced by the Respondent No,3 was the managed one.
7. We have heard Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioner, Mr. Farooq H. Naik, learned counsel for Respondents Nos. 3 and 4 and Mr. Abbas Ali, learned A.A.-G.
8. Mr. Mujeeb Pirzada, has reiterated his contention that the Respondent No,3, produced entry from the Electoral Roll along with the nomination form and on the basis of such entry he is admittedly below 25 years of age. He submitted that the Electoral Roll was prepared in the year 2000, on the basis whereof the Local Bodies Elections, 2001 as well as elections to the National Assembly and Provincial Assembly, 2002, were held. According to him the correction/addition/deletion in the Electoral Roll is a continuous process and before every election the Electoral Rolls are revised. For that purpose, Revising Authorities are appointed. The correction in the Electoral Roll can be applied before the announcement of the election schedule. The Electoral Rolls were revised for the purpose of Local Bodies Elections, 2005 as well, but the respondent No,3, never approached any competent Authority for correction in respect of his age, which was shown to be 19 years on 1-1-2000. He has further submitted that the Respondent No,3, after attaining 18 years of age obtained his National Identity Card, in which he declared his date of birth on oath as 5-2-1981 and subsequently, obtained computerized National Identity Card, in the month of November, 2004 and still made no - request for correction of date of birth to be 5-2-1980 instead of 5-2-1981 shown in the computerized National Identity Card. He has submitted that to the knowledge of respondent No,3, his date of birth has always been shown as 5-2-1981 on the basis of his own statement on oath, in the National Identity Card and in the Electoral Roll. He has next produced the certified copy of the School Leaving Certificate issued by the Public High School Hyderabad, dated 23-8-1994, wherein the date of birth of the Respondent No,3, is shown as 5-2-1981. On the basis of this School Leaving Certificate, he obtained admission in Government N. Hamidia High School, Jacobabad, Sindh, and left school after appearing in the examination of Xth Class. The School Leaving Certificate issued by the Government N. Harnidia High School Jacobabad, also shows the date of birth as 5-2-1981. A provisional certificate issued by the Headmaster .Governmetn N.Hamidia High School Jacobabad, certifying that the Respondent Nb.3 appeared in Annual Secondary School Certificate Part II (Matriculation) in the year 1996, and passed in Grade 'El' has also been produced. In this Provisional Certificate as well, the date of birth is shown as 5-2-1981. The Matriculation Certificate has not been produced by the respondent No,3, although directed by the Court, but even if produced it shall contain the same date of birth as is shown in the Provisional Certificate issued by the Headmaster Government N. Hamidia High School, Jacobabad Sindh. Mr. Mujeeb Pirzada has further produced entry from the General Register, maintained by Government Nationalized Hamidia High School, Jacobabad, which shows the date of birth of the Respondent No,3 as 5-2-1981. He has submitted that all these documents are admitted and are based on declarations made by the father of Respondent No,3 or the Respondent No,3, himself. He has submitted that the General Register maintained by the Government N. Hamidia High School and the date of birth shown in the School Leaving Certificates are based on the entries made in the Primary School. According to Mr. Pirzada, the copy of Primary School Leaving Certificate, produced by Respondnet No,3 before the District Returning Officer, is managed one in which the year 1981 has been substituted as the year 1980. He has further submitted that the Respondent No,3, has produced a photostat copy of the birth certificate allegedly maintained in the Union Council Ahmed Pur, but it is merely signed by Secretary Union's Administration. It is nowhere stated that it is the certified copy of the original record. He has argued that in this document also, which cannot be relied upon being uncertified the year of birth has been changed from 1981 to 1980. Mr. Mujeeb Pirzada, has finally contended that the date of birth of the Respondent No,3 shown in the Electoral Roll, the National Identity Card, the School Certificates issued by Public High School Hyderabad and Government N. Hamidia High School Jacobabad, as well as the Provisional Certificate issued by the Headmaster Government N.
Hamidia High School Jacobabad, and the entry in the General Register, maintained by the Government N. Hamidia High School Jacobabad, is 5-2-1981 therefore, the. Returning Officer rightly rejected the nomination paper, while the District Returning Officer has fallen in error in allowing the appeal and thereby accepting the nomination form.
9. On the other hand, Mr. Farooq H. Niab, learned counsel for the Respondent No,3, initially contended that the petition is not maintainable for the reason that every matter pertaining to elections is to be challened through an election petition. In this behalf, he has placed reliance on several judgments including the following:--
(1) PLD 1971 Lahore 737.
(2) PLD 1980 Lahore 327.
(3) PLD 1991 Lahore 200 and
(4) PLD 1989 SC 396.
10. On merits, he has submitted that the birth certificate shows the date of birth as 5-2-1980 and the Primary School Leaving Certificate also shows the same date of birth. He has maintained that if the date of birth is taken as 5-2-1980, the Respondent No,3, was above 25 years of age on the date of scrutiny and was thus, qualified to contest the elections. He has not denied that the age of respondent No,3 is shown as 5-2-1981 in the School Leaving Certificate issued by the Public High School Hyderabad, Government Nationalized Hamidia High School Jacobabad, General Register maintained by Government Nationalized Hamidia High School, Jacobabad, Provisional Certificate issued by the Headmaster Government Nationalized Hamidia High School Jacobabad, and the National Identity Card, possessed by the Respondent No,3. He has further admitted that on the basis of age shown in the Electoral Roll, the Respondent No,3 was below 25 years of age on the date of scrutiny held by the Returning Officer. He has contended that liberal view be taken and the order passed by the Returning Officer be maintained leaving the matter to be decided finally by the Election Tribunal, after the elections.
11. The learned A.A.-G. Has supported the contentions raised by Mr. Abdul Mujeeb Pirzada, and has stated that the preponderance of evidence is against the Respondent No,3.
12. We have given anxious consideration to the contentions raised by the learned Advocates for the parties and have carefully examined all the documents placed on record.
13. We are not persuaded to agree with the contention of Mr. Farooq H. Naik, that the petition is not maintainable for the reasons that the objection can be raised through election petition only. We are of the opinion that the election petition is to be filed before the Election Tribunal after an election is held and by any person who is aggrieved with the result of elections or any other matter pertaining to the qualification or disqualification of any candidate or conduct of the elections. It requires no emphasis that Election Tribunals are appointed after the result of elections are declared and the election is concluded at this stage, admittedly, there is no existence of any Election Tribunal and therefore, a party aggrieved by the order passed by the District Returning Officer, cannot be asked to approach a non-existent Tribunal. In the present case, of course, the remedy can be availed after the election is held and Respondents Nos.3 and 4 are declared elected, but there are large number of cases in which the nomination papers have been rejected, either by the Returning Officer and District Returning Officer, both or by the District Returning Officer in appeal. If in such cases- a view is taken that a person aggrieved with the order passed by District Returning Officer can approach the Election Tribunal only through an election petition, such persons whose nomination papers have been rejected shall be deprived of the opportunity of contesting the elections and shall have to wait till the next elections. It is provided in Article 225 of the Constitution that, 'no election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such Tribunal and in such manner as may be determined by Act of Malis-e-Shoora (Parliament)'. Likewise, it is provided in Rule 65 of the Sindh Local Government Elections. Rules, 2005 that, no election shall be called in question except by an election petition made by a candidate for that election, and it is further provided that an election petition shall be presented to the Tribunal appointed by the Chief Election Commissioner within 30 days of the publication in the official Gazette of the names of the returned candidates.
Accumulative reading of all these provisions shows that they relate to the challenge of concluded elections and are post-election provisions. So far, the reelection forums are concerned, there is no role of Election Tribunal in it, and therefore, the appeal against the order of Returning Officer, has been provided before the District Returning Officer. Thereafter, the law has not created any other forum. It is trite law that if no forum is available, which is evident from the opening words in Article 199 of the Constitution, to the effect that, if the High Court is satisfied that no other adequate remedy is provided in law, it shall have the jurisdiction to issue an appropriate writ under Article 199 of the Constitution.
14. We are of the considered opinion that the election petition, after the conclusion of election before the Election Tribunal is not always an adequate remedy and consequently, a writ petition challenging the acceptance or rejection of nomination paper is maintainable.
15. Coming to the merits of the case, we would like to observe that by now, it stands settled that for the purpose of acceptance or rejection of nomination papers or other ancillary matters, the Returning Officer and the District Returning Officer sitting in appeal shall hold summary inquiry and decide the issue on the basis thereof. Neither it is adviseable nor possible to hold in-depth inquiry or record evidence for the purpose of deciding any issue raised before the Returning Officer or District Returning Officer and any matter which cannot be decided in a summary manner should be left to be decided by the Election Tribunal in the appropriate proceedings. We will adhere to the same principle while deciding the issue before us.
16. Before coming to the merits of the case, we would like to refer a Division Bench judgment of this Court in the case of Syed Bachal Shah v. Malik Asad Sikandar, PLD 1989 Karachi 53. In this case objection to the acceptance of nomination paper was raised on the ground that although in the Electoral Roll, the age of respondent was shown above 25 years. But according to School Leaving Certificate, he was below 25 years of age. The Returning Officer and the Appellate Authority overruled the objection and accepted the nomination paper. In the petition before this Court, it was contended that the age shown in the Electoral Roll is for the purpose of exercising right of vote only and not for the purpose of determining the age with regard to the qualification or disqualification of the candidate. It was observed by Division Bench of this Court that the order passed by the Returning Officer on the basis of entry in the Electoral Roll, was not open to exception.
17. In another case Heesab v. Election Authority, P.L.D. 1986 Karachi, 179, this question came for consideration but no conclusive finding was given. It was observed by Naimuddin, J. (as his lordship then was) that the order passed by the Tribunal was with jurisdiction. Whether it was right or wrong, it cannot be challenged in petition. This view has been overruled long ago by the Hon'ble Supreme Court. The other member of the Bench Abdur Rehman, J. Appended his note which reads as follows:- "I agree with the above order as well as the reasoning. However, I would like to add that no doubt the entries in the electoral roll are not to be treated as final except as regards the right to vote but the mere fact that they are not to be treated as final does not mean that no weight whatsoever is to be given to these entries in respect of other questions, such as whether the voter was of requisite age of being a candidate or member of an electoral office. After all an entry in the electoral roll is not different from an entry in Identity Card. Register or School Register in the eyes of law. It may be pointed out that an entry in any of these 3 registers is an admission made by a party and it could not have been produced in his favour, except as provided under section 21(2) and (3) of the Evidence Act of 1872,which is equivalent to section 34(2) and (3) of Qanun-e-Shahadat, 1984.
Sections 34(2) and (3) of Qanun-e-Shahadat read as under:-- "(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
(3) An admission may be proved by or on behalf-of the person making it, is relevant otherwise than as an admission."
(2). We therefore, find that there are 2 pieces of evidence in favour of the petitioner i,e, one being the entry in the electoral roll made about 5 years before the filing of nomination paper. The first piece is a statement by the petitioner while the second piece is its corroboration by a scientific opinion. As against this the evidence against the petitioner on this point is of two entries i,e, one in School Register and the other perhaps in identification card Register based on the statement made by or on behalf of the petitioner."
18. Now coming to the facts of the present case, we find that the respondent No,3 filed the copy of Electoral Roll along with his nomination paper. The Electoral 11.411s for the purpose of Local Bodies Elections, 2005 were updated in pursuance of Local Government Elections, Chief Election Commissioner's Order No,1 of 2004, which was passed with the specific purpose for inclusion of name of any qualified person, whose name does not appear in such roll, or delete the name of any person, who has died or who is or has become disqualified for enrolment, or correct any entry or supply any omission in such electoral rolls. Admittedly the respondent No,3, never applied for correction of his date of birth and therefore, we find substance in the contention of Mr. Abdul Mujeed Pirzada, that the respondent No,3, accepted the entry in the Electoral Roll to be correct. We further find force in the contention of Mr. Abdul Majeed Pirzada, that the National Identity Card is prepared on the basis of declaration on oath made by the person concerned and the National Identity Card issued on attaining the age of 18 years by the respondent No,3 and the second Identity Card issued on introduction of Computerized National Identity Card, show the date of birth as 5-2-1981. This fact was always within the knowledge of respondent No,3, but he never applied for correction in his date of birth. In addition to the above facts, the principles relating to the decision in civil or quasi civil matters are that the issues are to be decided on preponderance of probabilities. We find that as observed by Abdur Rehman, J., in the case of Heesab v. Election Authority (supra) although the entries in the Electoral Roll are not to be treated as final except as regard the right to vote but the mere fact that they are not to be treated as final does not mean that no weight whatsoever is to be given to these entries in respect of other question, such as whether the voter was of requisite age for being a candidate or member of an Electoral Office. We fully agree with the observation that entry in the Electoral Roll is not different from an entry in Identity Card Registrar or School Register in the eyes of law. In the Identity Card, the date of birth is shown as 5-2-1981 and in the two School Leaving Certificates issues by Public School Hyderabad, and Government Nationalized Hamidia High School Jacobabad, as well as Provisional Certificates issued by Headmaster Government Nationalized Hamidia High School Jacobabad, coupled with the entry in the General Register maintained by the Government Nationalized Hamidia High School Jacobabad, showing the date of birth of respondent No,3, as 5-2-1981, provides preponderance of evidence as against the document on which the respondent No,3, has placed reliance. We are persuaded to agree with the submission of Mr. Pirzada that the birth certificate photocopy whereof has been produced in this case for the first time cannot be relied upon because it is not a certified copy and bears signatures of Secretary Unions Administration without any endorsement of the fact that it is certified copy of the entry maintained in the birth certificate. Further we find that in this certificate there is no entry number/serial number against which the entry was made. The last column in this certificate is in respect of the name and signature of the person making report. The name shown as Miran Bux Tallani father of respondent No,3, but the signature is missing. There is no signature of the person making these entries in the Birth Register. The birth certificate cannot be accepted as the requirements of Articles 87 and 88, Qunun-e-Shahadat have not been fulfilled.
Which read as under:- "87. Certified copies of public documents.---(1) Every public officer having the custody of a public document, which any person has all right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the, case may be, and such certificate shall be and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified shall be called certified copies.
Explanation.-Any officer, who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Article.
(2) Photostat copy of public documents, shall not be admissible unless it has been certified to be the true copy, by the officer concerned who has the custody of the original document.
(3) Official-notes and correspondence or copies thereof, being not public documents, shall not be issued and shall not be admissible in any case."
88. Proof of documents by production of certified copies.--Such certified copies may be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies."
19. We have reservations to the acceptance of entry in the Primary School Leaving Certificate, showing the date of birth of the respondent No,3, as 5-2-1980 for the reason that on the basis of Primary School Leaving Certificate, student gets admissions in the Secondary School. According to Primary School Leaving Certificate respondent No,3 left the Primary School on 31-3-1991. He then obtained admission in Public High School Hyderabad, on 20-4-1992. The record in the Secondary School is maintained on the basis of School Leaving Certificate issued by the Primary School and according to the record of Secondary School, the date of birth is 5-2-1981. All subsequent certificates are based on the entry made in the Public School Hyderabad. There is no discrepancy in any of the entries maintained in the Public High School and the Government N. Hamidia High School as well as Provisional Certificate issued by the Headmaster. All these documents consistently show the date of birth of respondent No,3 as 5-2-1981.
20. For the foregoing reasons, we are of the considered view that on the basis of preponderance of evidence on record, the date of birth Of respondent No,3, is 5-2-1981 and therefore, he was below 25 years of age on the relevant date for the purpose of Local Council Elections, 2005, and was consequently, disqualified from contesting the elections as a candidate for the post of Nazim. The Returning Officer, rightly rejected the nomination paper of the respondents Nos. 3 and 4 on the basis of material available before him and the District Returning Officer, misdirected in holding otherwise. The impugned order passed by the District Returning Officer, is hereby set aside and the order passed by the Returning Officer is restored. The petition is allowed accordingly.