The present petitioner raised objections as to the candidature of respondent No.1-Rana Almas Liaqat for General Member in Ward No.7, Asif Colony, Pattoki, on the ground that in view of his date of birth i.e. 14.09.1994, which has been noted in his matriculation certificate, issued by the Board of Intermediate & Secondary Education, Lahore, he was not qualified to be a valid candidate on account of his being less than 25 years of age on the day of nomination.
2. The said objection although was received by the Returning Officer on 15.09.2015, but when on the next day i.e. 16.09.2015, the process of scrutiny was carried out, the Returning Officer has not commented upon such objection and simply "accepted" the nomination papers of respondent No.1.
3. The appeal, filed by the petitioner, was dismissed by the learned appellate authority on 28.09.2015, by holding that it is the fundamental right of every citizen to contest the election and that nomination papers of any candidate cannot be rejected on technical grounds.
4. The learned counsel for respondent No.1, on appearance, at the very outset, has objected to the locus-standi of the petitioner, as in his view, the petitioner was neither a contesting candidate nor proposer, seconder or voter of the concerned Union Council; therefore, he was not competent to raise objection or to file an appeal against acceptance of nomination papers of respondent No.1.
5. Answering to such query, the learned counsel for the petitioner has referred Rule 14(1) of Punjab Local Government (Conduct of Elections) Rules, 2013, which provides that the scrutiny of nomination papers shall be open to the candidates, their election agents, proposers and seconders, or the persons who made objections against the nomination papers and any voter of the constituency with the permission of the Returning Officer, before the commencement of the scrutiny and the Returning Officer shall give all those present reasonable opportunity for examining all nomination papers delivered to him under rule 12, and according to the learned counsel for the petitioner, a class of "persons, who made objections against the nomination papers" indicates to an independent and separate class of persons, who were competent to challenge the nomination of any candidate for local bodies. Further contends that, in view of Rule 14(2), the Returning Officer shall, in the presence of the persons attending the scrutiny under sub-rule (1), examine the nomination papers and decide an objection raised by any such person to a nomination. The learned counsel for the petitioner contends that, the word "such" used in Rule 14(2) denotes the persons present at the scrutiny mentioned in sub-rule (1), which includes the person, who made objections.
6. Regarding the right to file an appeal, the learned counsel for the petitioner, with reference to sub-rule (10) of Rule 14, has submitted that an appeal against the decision of the Returning Officer rejecting or accepting the nomination papers of the candidate, may be preferred by any person present at the time of scrutiny under sub-rule (1) to the concerned District Judge.
7. The learned counsel for respondent No.1, after having gone through such provisions of Rules, impliedly withdrew his objection as to the locus-standi of the petitioner in either filing objection against nomination papers of respondent No.1 or filing appeal against the acceptance of nomination papers of said respondent.
8. On merits, it is the position that the date of birth, noted in matriculation certificate of respondent No.1 is '14.09.1994' and, therefore, respondent No.1, at the time of nomination, was not of the age of 25 years, which is the minimum age for a person to qualify to be elected as a Member or to hold an elected office of a local government in view of Section 27(1)(b) of the Punjab Local Government Act, 2013, and such age limit is to be considered on the last day, fixed for filing the nomination papers.
9. Respondent No.1 was aware of his such disqualification and in order to overcome such difficult situation, he, with the help of his date of birth, which he got entered in the record maintained by NADRA as 14.02.1990, moved the Educational Board only one day prior to the process of scrutiny for correction of his date of birth.
10. Although in order to keep a mystery, no date has been noted on such application for correction of date of birth of respondent No.1 moved before the Board, but the fee deposited in the Bank, receipt of which is available at page-19 of the present file, reveals that the same was deposited in the Bank on 10.09.2015 and naturally, after deposit of such fee, respondent No.1 moved the concerned Board his request regarding change of his date of birth.
11. The learned counsel for the petitioner has rightly pointed out that, although some entry in NADRA has been produced by respondent No.1, but Form-B, which is meant for the detailed particulars of whole of the family, has been withheld. The petitioner has placed on record, copies of CNIC of Mohammad Waqas and Gulnaz Liaqat, real brother and sister of respondent No.1, which carries dates of birth of said two persons as 10.01.1990 and 10.12.1990, respectively. Respondent No.1 has not denied the authenticity of such document placed as Annexure-F (pages 27 and 28 of the present file).
12. If the date of birth now attempted to be got entered by respondent No.1 as '14.02.1990', then it would be clear that there was only a gap of one month in the birth of respondent No.1 and his real brother-Mohammad Waqas.
13. Twins may get birth at one time, but this gap cannot be lingered on for one month period and this is not the case of respondent No.1 that he was a twin brother of Mohammad Waqar (his real brother). Even such request made by respondent No.1 before the Educational Board has not been decided, in any manner, whatsoever.
14. This Court in case of Maik Muhammad Faisal and another vs. State Life Insurance Corporation through Chairman, Karachi and 2 others (PLD 2007 Lahore 453) has held that the National Identity Card of the person concerned containing a date of birth other than that of noted in the record of Secondary School/Educational Board, then the date of birth, as noted in the educational testimonials, is to be given preference to that of noted in the National Identity Card, by holding further that the correct and true date of birth of the relevant person would be the one as recorded in the Board of Education record, being earlier in time.
15. The Hon'ble Supreme Court of Pakistan in case Sher Baz Khan and others vs. Mst. Malkni Sahibzadi Tiwana and others (PLD 2003 Supreme Court 849) has authoritatively held that in preference to the oral or other version with regard to the age, the one recorded in matriculation certificate would be considered as unimpeachable evidence.
16. The Returning Officer has not, at all, considered the objections, whereas, the learned appellate authority has proceeded on wrong directions by holding that, it is the fundamental right of every citizen to contest the election, but ignored that every fundamental right is subject to law and law does not favour a person having less than the age of 25 years to claim his being valid candidate irrespective of his age limit, as his fundamental right. The appellate authority has further held that, technical objections must be avoided. By holding such, the appellate authority, again erred in law, as the law, no doubt, is a technical subject and if technicalities are not observed, then it would lead to allow a foul play everywhere, which is not the intention of law.
17. The result of above discussion is that, respondent No.1-Rana Almas Liaqat, was not qualified on the date of nomination, to be considered as a valid candidate to contest the elections of a local government and, thus, his nomination papers were illegally allowed and appeal filed against such acceptance was erroneously dismissed. The objections, filed by the petitioner, are allowed and resultantly nomination papers, filed by respondent No.1, for General Member, Ward No.7, Asif Colony, Pattoki, District Kasur, stand rejected by setting aside the order/judgment passed by the authorities below on 16.09.2015 and 28.09.20915, respectively.
18. This Constitutional petition is allowed in the above lines.