' RUSTAM S. SIDHWA, J.-This is a constitutional petition filed by Malik Ghulam Abbas, petitioner, calling in question the order of the Election Tribunal, Multan, respondent No, 1, dated 16th May, 1980, holding the election of the petitioner as Chairman of the Union Council No, 169, Jalalpur Khakhi, Tehsil Shujabad, as void and directing fresh election' to be conducted for the said office.
2. The brief facts of the case are that the petitioner was elected as Chairman of the Union Council No, 169, Jalalpur Khakhi, Tehsil Shujabad, in election which took place on 20th December, 1979 for the said office. In the said election, both the petitioner and respondent No, 2 had contested for the said office and, having secured equal votes, a lot was drawn and the petitioner was declared successful. On 16th January, 1980 respondent No 2 filed an election petition challenging the election of the petitioner to the office of Chairman on the ground that at the time of the filing of his nomination paper for election as a member of the said Union Council, the petitioner was below 25 years of age. With the said petition, respondent No, 2 filed a birth certificate issued by the Municipal Corporation, Multan, showing the date of birth of the petitioner as 4th June, 1957. The petitioner, in his written statement, denied the averments contained in para. 2 of the petition as regards his age being below 25 years and further pleaded that the birth certificate produced by respondent No, 2 in support of the election petition was a fictitious document and one not admissible in evidence. On the pleadings of the parties, a number of issues were framed by the Election Tribunal, one of which was whether the present petitioner was below the age fixed for election. Though the letters "0. P. D." appear next to this issue, the very wording of the issue places the onus of proof or respondent No, 2.
Strangely, neither party produced any evidence in the case nor tendered or got exhibited any document in his favour. It appears that on 7th February, 1981 the Election Tribunal gave a last opportunity to the parties to produce evidence, which was not availed of by either. Thereafter, the case was fixed for argument on no less than nine hearings and on 16th May, 1981 in the presence of respondent No, 2 alone, judgment was delivered and announced against the petitioner.
3. We have heard the arguments of the learned counsel for the petitioner and respondent No, 2 and have also perused the record. The inspection of the original record of the Election Tribunal reveals that no evidence was led on behalf of respondent No, 2 in respect of the issues, the onus of which was on him, nor was the birth certificate (Annexure "C-I" to the petition) issued by the Municipal Corporation, Multan, tendered in evidence on his behalf and exhibited. In this view of the matter.
The said birth certificate could not be taken into account as evidence against the petitioner by the Election Tribunal. The only fact before the Tribunal was the said birth certificate. Learned counsel for respondent No, 2 relied upon Nathe Khan v. Mst. Rahmat Bibi and others in support of the proposition that a document not duly tendered in evidence and exhibited could be taken into consideration as a piece of evidence for the determination of the case. However, the said case is distinguishable as in that case, two documents produced by the plaintiff, though not tendered in evidence and exhibited. Were taken into consideration as a form of implied admission binding on the plaintiff, as she herself had produced the documents. In the instant case, the birth certificate was filed with the petition by respondent No, 2 and could not be used by him in his own favour.
4. For the foregoing reasons, this petition is accepted and the order of the Election Tribunal, Multan, respondent No, 1, dated 16th May, 1980 is declared to be without lawful authority and of no legal effect and B the petitioner is declared to be lawfully holding the office of the Chairman of Union Council No, 169, Jalalpur Khakhi, Tehsil Shujabad, District Multan. There shall be no order as to costs. PLD 1961 B J 96