' MAULVI ANWARUL HAQ, J.---The facts of this case as gleaned from the writ petition and the records produced by the learned Returning Officer are that to contest elections to the seats of Nazim/Naib Nazim in UC 82, Tehsil Alipur, District Muzaffargarh, the petitioner along with one Muhammad Mazhar, on the one hand, and respondents Nos.4 and 5, on the other, filed nomination papers. I may note here that the nomination papers were filed by respondents Nos.4 and 5 on 20- 7-2005 and these were taken up for scrutiny on 23-7-2005. Meanwhile none of the candidates including the petitioner had filed objections against each other. However one Malik Shahbaz Ali son of Niaz Hussain (stated to be a brother of the petitioner) filed an application on 22-7-2005 stating that respondent No,4 is less than 25 years of age and that as he has not appended his matriculation certificate he may be directed to produce the same. According to him, the papers are accompanied by B.A. Degree and certificate declaring him passed in Intermediate Examination and that these documents do not contain his date of birth, it was also alleged that whereas the last date for making entries in the voter list is 31-5-2005, the name of respondent No,4 was entered on 30-6-2005. The matter was heard by the learned Returning Officer on 23-7-2005 in the presence of said objector and respondent No,4. He observed in his order recorded on the same date that he has examined the matriculation certificate of respondent No,4 wherein his date of birth was entered as 9-10-1981 but an application for correction of the said .Date is pending and he has produced a certificate to the said effect issued by BISE, Multan. Respondent No,4 has also produced copy of his birth entry whereby his date of birth is 27-3-1980 and birth was recorded on 23-4-1980.
The reference was also made to the entry of date of birth in the N.I.C. Of respondent No,4. The objections were rejected and the papers were accepted. This order was not challenged any further.
According to records of the learned Returning Officer, the polling took place on 18-8-2005 and upon the close of polls, it was found that respondents Nos.4 and 5 have obtained 3098 valid votes while the petitioner and his co-candidate has obtained 2374 votes. The result was notified by the learned Chief Election Commissioner of Pakistan on 23-8-2005. The present W.P. Was filed in this Court on 3-9-2005 by the petitioner.
2. Learned counsel for the petitioner placing reliance upon the judgment dated 15-8-2005 of the Hon'ble Supreme Court of Pakistan in C.P. No,2137 of 2005 contends that since in the matriculation certificate the age is recorded as 9-10-1981, respondent No,4 was not qualified to contest the elections on the day of nomination and his nomination papers were accepted without any lawful authority by the Returning Officer. He also relies on the contents of the admission form present in the records of respondent No,6, wherein, the date is so recorded.
3. Learned counsel for respondent No,4 on the other hand, contends that ultimate contest took place between the panel headed by the petitioner and one headed by his client and the petitioner had never raised any objection and further, the said objector or for that matter the petitioner who was fully aware of the said order of the Returning Officer never questioned the same. According to him, they have filed writ petition at a point of time when the election process has been completed and the petitioner is praying for setting aside of the elections which lies within the exclusive domain of Election Tribunal already constituted by the Chief Election Commissioner of Pakistan. On merits his plea is that no challenge was thrown to the facts that his client is a graduate and has also passed the F.A. Examination. No challenge was thrown that he is a matriculate. He had not relied upon the matriculation certificate for any purpose. On the other hand, he had relied upon his birth certificate in the matter of age and he had demonstrated before the Returning Officer that the contents of the matriculation certificate pertaining to the date of birth stands challenged by him before the nomination day. The precise contention is that the said judgment of the Hon'ble Supreme Court of Pakistan would not be attracted to the facts and circumstances of the present case.
4. Before I proceed further, I may note here that according to Haji Muhammad Aslam Malik, Advocate, learned counsel for BISE, Multan the application filed by respondent No,4 for correction of date of birth in the matriculation certificate has since been returned back without any decision as according to the Provincial Government instruction such applications are not to be entertained beyond five years of the date of the issuance of the matriculation certificate by the Board.
5. I have given some thought to the respective contentions of the learned counsel for the parties and have further considered the facts and circumstances of the case apparent on the face of the available record. Now, in the nomination papers filed by respondents Nos.4 and 5 against the relevant column the qualification of respondent No,4 was mentioned as BA/MBA. According to records, he appended a result card for BA (Second Annual Examination, 2000) declaring him as passed the said examination. Another document appended is certificate issued by BISE, Multan on 15-8-1997 declaring him that he has passed the Intermediate Examination (Annual 1998). Now, it will be seem that the said respondent No,4 had not produced the matriculation certificate to establish his qualifications. He had produced the matriculation certificate upon the orders of learned Returning Officer pursuant to the said objections wherein his qualification has not been challenged. For purposes of his age, he has relied upon a copy of his birth entry. His N.I.C. Was also examined and according to these latter documents his date of birth was recorded as 27-3-1980.
The relevant entry in the matriculation certificate had already been challenged by him as per certificate relied upon by the learned Returning Officer. The objections filed by the said person were accordingly rejected and no further proceedings were taken.. Now, so far as the petitioner or his co-candidate are concerned, they opted to remain silent spectators and entered in the contest with respondents Nos.4 and 5 and lost at the hustings. After the Notification of the result they have filed this writ petition.
6. Now, I have examined the said judgment, which is the sheet-anchor of the petitioner's case. Now, in Para. 2 the contentions of the learned counsel for caveator were noted by their Lordships and it was found that the said learned counsel does not dispute the entry in the matriculation certificate at the same time, the learned counsel had relied upon a birth certificate. Their Lordships ignored the birth certificate in view of the said admission that as per the matriculation certificate the date of birth is 15-3-1982. Now, in the instant case, the said document was neither relipd upon nor produced by the petitioner. He never admitted the correctness of entry of date of birth there. On the other hand, he demonstrated that he had already challenged the said entry. To my mind the documents filed by respondent No,4 regarding his educational qualification were sufficient to fulfil the criteria laid down in law for possession of such qualifications to enable a person to contest election to the seat of Nazim/Naib Nazim. The matriculation certificate was accordingly neither required to be produced nor in fact it was relied upon for the purpose. The relevant entries stood challenged and was not admitted.
7. Now, the learned counsel for the petitioner has pointed out with reference to copy of school certificate that whereas the birth entry of Hassan Raza respondent No,4 is recorded therein as 9- 10-1981 one of his B sisters, namely, Nadra is recorded to have been born on 15-4-1980. The contention is that if the date of birth of the said respondent is 27-3-1980 then it is impossible for a sister to have taken birth on 15-4-1980. This matter, however, falls within the domain of factual inquiry. The Election Tribunal have since been constituted and adequate and efficacious remedy in the alternate is available.
8. For the reasons recorded above, this petition is accordingly dismissed. However, the petitioner may file a properly constituted election petition before the competent Election Tribunal and in case such a petition is filed the said question of disqualification of respondents No,4 shall be dealt with and decided as a preliminary question expeditiously as mandated by law. It is also hoped that the matter of condonation of delay shall receive sympathetic consideration by the learned Election Tribunal. Needless to state that nothing observed herein shall in any manner influence the decision of the election petition, if so filed.
9. The records of the learned Returning Officer be returned. No order as to costs.