' IJAZ-UL-HASSAN KHAN, J.--- Shortly narrated the facts, leading to the filing of the present election petition, are that Hafiz Rashid Ahmad, respondent No,2, (hereinafter referred to as the respondent), contested the election of year 2006 for the membership of the Senate of Pakistan, on General Seat from the Constituency of Federally Administered Tribal Area. As a prerequisite to the election process, the respondent furnished his particulars along with his nomination papers. Along with his nomination, respondent submitted his Identity Card, bearing No,17101-1023876-9 and after the initial scrutiny contested the election and has been declared as a returned candidate. Consequent thereto the Election Commission of Pakistan issued the notification thereby notifying the respondent as the returned candidate.
2. Muhammad Ayub, petitioner, one of the rival candidates, feeling discontended, has filed instant election petition under section 34 read with section 47 of the Senate (Election) Act, 1975, (hereinafter referred to as Act), before the Honourable Chief Election Commissioner, which was entrusted to this Tribunal for trial and disposal in accordance with law. It was alleged in the petition that at the time of filing of the nomination papers, respondent was less than 30 years of age and, as such, was not eligible to contest election in view of the bar contained in Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and the Senate (Election) Act, 1975. It was also pleaded that respondent has identity card of the NADRA and the NADRA in its record, carried his date of birth as 28-9-1977 and according to this entry, respondent is of far less than 30 years of age. The respondent in order to procure the qualification and to conceal his disqualification has managed to prepare a forged, fabricated new I.D. Card carrying the same number,- but with a different date of birth. It was asserted that the election of the returned candidate i,e, respondent as Senator is void and consequent upon declaration his election as void, the petitioner be declared as duly elected Senator.
3. The respondent filed written statement and he besides raising legal objections and controverting the contents of the petition, maintained that at the time of filing of the nomination papers, he was not less than 30 years of age and was eligible and qualified to contest the election.
4. This Tribunal on 11-9-2006, framed the following preliminary issue for trial:-- "Whether on the date of nomination the respondent was qualified/eligible to contest the election for office of the Senate of Pakistan from FATA."
5. In evidence, the petitioner appeared as (P.W.2) and he produced Shaukat Ali, Assistant Director, NADRA, Peshawar as (P.W.1). In rebuttal, the solitary statement of Maulana Ghulam' Muhammad Sadiq, M.N.A., father of respondent was recorded as (R.W.1). Documentary evidence was also produced.
6. Malik Qamar Afzal, Advocate appearing on behalf of the petitioner, contended with vehemence that on the day of filing of the nomination papers i,e, 11-2-2006, respondent was less than 30 years of age and he was not qualified to contest the election in view of the bar contained in Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973 and the Senate (Election) Act, 1975, prescribing the qualification and disqualification to contest the election as Senator. The learned counsel submitted that respondent intentionally used redundant 1.D. Card issued to him on 29-4- 2004 and not used the new I.D. Card issued to him on 29-10-2005, for reasons not far to seek. The learned counsel also contended that respondent gave a false declaration on oath under section 11(2) of the Senate (Election) Act, 1975 to the effect that he was qualified to contest the election (ii Senate and, as such, committed an act of forgery and fraud upon the authority. Concluding the arguments, learned counsel reiterated that election of the respondent as Senator is void and on consequent upon declaration of respondent's election as void, petitioner be declared as newly- elected Senator. To augment the, contentions, reliance was placed on Bakhtawar and others v.
Amin and others 1980 SCMR 89(b), Sarli Gul v. Fayyaz Ahmed and others PLD 2004 SC 485, Abdul Khaliq and another v. Maulvi, Muhammad Noor and others PLD 2005 SC 962(d), Mst. Razia Khatoon through legal heirs v. Dr. Roshan H. Nanji and another 1991 SCMR 840(b), (I.D. Card) Tehmash Khan and another v. Gohar Ali and 13 others PLD 2004 Pesh. 202, (age of candidate would be determined on the day of filing of nomination papers, Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin 1988 SCMR 753, Mst. Razia Khatoon through legal heirs v. Dr. Roshan H. Nanji and another 1991 SCMR 840(b), Zulfiqar Ali v. Haji Kamal. Hussain and 27 others 1995 CLC 1383, Naheed Usmani v. Mst.
Anwar+ Begum 1991 CLC 1774 and Master Muhammad Yaseen v. Moeenuddin 1990 CLC 703.
7. Qazi Muhammad Anwar, Advocate, learned counsel for the respondent, on the other hand, rebutted the arguments of learned counsel for, the petitioner and submitted that at the time of filing of the nomination papers on 11-2-2006, respondent was not less than 30 years of age and was eligible to contest the election; that neither entry in the ,educational certificates nor in the identity cards is conclusive evidence of date of birth and that petitioner was estopped to question the election of respondent as petitioner has at no stage raised any objection on the nomination papers of respondent and it is only after his defeat that he has filed the petition, which merits outright dismissal. To substantiate the contentions, reliance was placed on:---
(i) Nath Roy and others v. Jyotish Chandra Acharya. Chowdhury AIR 1941 Cal. 41, (ii) Muhammad Nawaz Khan v. The Collector District Gujranwala and another PLD 1960 (W.P.) Lah. 1123 and (iii) Haji Khizar Hayat v. Sarfraz Khan and another PLD 1968 Lah.
381.
8. I have heard arguments of learned counsel for the parties, in the light of the material on record and the case-law cited at the bar. I have also perused the arguments in writing submitted by learned counsel for the parties in support of their respective stances. .I proceed to decide the issue against the petitioner for reasons to follow, holding that at the time of filing of the nomination papers answering respondent Hafiz Rashid Ahmad was not less than 30 years of age and was qualified to contest the election.
9.. A perusal of the record would reveal that the date of birth of respondent is 30-7-1975 and the same has been correctly mentioned in column of date of birth in the nomination papers annexed by the petitioner with his election petition. The law has only required declaration of date of birth in the nomination papers and there is no requirement of proving the date of birth at the time of filing of nomination papers through identity card or school certificate or other evidence. It may be pertinently mentioned here that before nomination day, respondent got published public notice that he was born in 1975 and not 1977 and the same public notice was published by Daily "Pakistan" on 8-2-2006. Besides above, respondent filed Civil Suit No,16/1 of 2006 in the Court of Senior Civil Judge, Charsadda on 10-2-2006, seeking declaration and permanent injunction that his date of birth is 30-7-1975, which has been correctly mentioned in his 'original identity card and also computerized identity card dated 29-4-2004 and that his date of birth in the identity card dated 29-10-2005 has been wrongly mentioned is 28-9-1977 and for permanent injunction that his date of birth be corrected as 30-7-1975 in the identity card as well as in the educational certificates.
Along with suit, respondent filed application dated 10-2-2006 for status quo that his date of birth be treated as 30-7-1975 and not 28-9-1977. The Senior Civil Judge, Charsadda, vide order, dated 10-2-2006, directed maintenance of status quo in terms of application. In the said suit NADRA was arrayed as defendant No,3. NADRA did not contest the suit and resultantly, suit was decreed by the Senior Civil Judge, Charsadda, by judgment, dated 21-4-2006. It may be noted here that judgment and decree of Senior Civil Judge. Charsadda has not been questioned either by the petitioner or by NADRA. It is evident from the contents of the decree, dated 21-4-2006 that respondent has attained the age of 30 years before the target date and the same having been not assailed in the appropriate proceedings was still holding the field. The validity of the decree passed by the Civil Court neither could be challenged before the Election Tribunal nor the same could be ignored to be given legal effect and thus, I am of the view that so long as the decree of the Civil Court, determining the age of respondent on the date of filing of nomination papers was intact, the objection that he was less than 30 years of age on the date of filing of nomination papers could not be raised to contend that he was suffering from disqualification the age to contest the election. In this view of the matter I am fortified by the observations made in Atique Rehman v. Haji Khan Afzal and others 2007 SCMR 507.
10. During the trial, Maulana Ghulam Muhammad Sadiq, M.N.A., father of the respondent was examined as R.W.1, who filed affidavit before the Tribunal, not only disclosing the date of birth of respondent as 30-7-1975, but in the affidavit, he has mentioned date of birth of respondent, who is his first son and has recorded in his own handwriting in the Diary of 1975 as 30-7-1975. This witness has not only made statement before the Tribunal about the birth of respondent on 30-7-1975 but also produced documentary evidence in form of his writing on the diary of 1975. This writing has not been questioned. The witness was subjected to lengthy and searching cross-examination but nothing could be elicited favourable to the petitioner. His testimony inspires confidence and deserves credence. In Civil Appeal-No,50 of 1987, titled Nawabzada Salahuddin v. Begum Fakharuzzaman Khan and others the Supreme Court relied on a diary of a family friend in respect of date of birth of Nawabzada Salahuddin against the date of birth in Burn Hall Abbottabad, Edwards College, Peshawar and in this judgment the Court went to the extent that statement of "Mirasee" and Barbar can be given credit over school certificate or entry in the National Identity Card, because they have first information. The petitioner has not produced any evidence in respect of actual date of birth of respondent. The only evidence, which he has produced is NADRA record, where in the earlier two identity cards, the date of birth of respondent was recorded as 30-7-1975 and that in 2005 on his own application, it was changed to 28-9-1977, which was again corrected in compliance of the decree of the Court as 30-7-1975.
11. The law declared by the superior courts is that neither entry in the educational certificates nor in the identity card is conclusive evidence of date of birth. Shaukat Ali (P.W.1) Assistant Director NADRA himself admits the date of birth mentioned in the NADRA record is not conclusive evidence of actual date of birth. When NADRA itself does not claim the correctness of date of birth recorded in the identity card, then the Tribunal is left with the only authentic evidence, which is Maulana Ghulam Muhammad Sadiq, M.N.A., father of respondent, who has narrated not the date of l5irth of respondent but also the date of A birth of his other children. The contention of learned counsel for the petitioner that extracts of the Diary having come from an independent source, cannot be relied upon to determine age of the respondent, is not tenable.
12. The submission of learned counsel that respondent in order to procure the qualification and to conceal his disqualification has managed to prepare the forged, fabricated new identity card carrying the same number, but with a different date of birth, is equally without substance. The mere assertion of the learned counsel in this regard, without a positive attempt on his part to substantiate the same, is of no consequence.
' In view of what has gone above, it follows that at the relevant time i,e, at the time of filing of the nomination papers on 10-2-2006, respondent was not less than 30 years of age, was qualified to contest the election and did not suffer disqualification in terms of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 and Senate (Election) Act, 1975. The petition, having been found bereft of merit, is dismissed, with no order as to costs.