' MUHAMMAD AFZAL LONE, J.-Sikandar Hayat, petitioner and Ghulam Mohammad Shahbazi respondent were elected as members of the Union Council Uttra, Tehsil Khushab, District Sargodha, under the Punjab Local Government Ordinance, 1979. Later on the petitioner was unanimously returned as Chairman of the said Union Council. On an election petition filed against him by the respondent, the Election Tribunal by order dated 13th July, 1981 declared his election as void, on the ground that on 8th September,. 1979, when the nomination papers were filed, he being of less than 25 years of age was not qualified to contest election. The validity of this order has been assailed through this writ petition.
2. Before the Tribunal, the respondent besides his own statement relied on the petitioner's School- certificate Exh. P. 1 (Annexure `D'), tendered in evidence by Abdur Razaaq, Headmaster of the Government Middle School, Gunjial, wherein his date of birth was recorded as 20th April, 1958. As against this, the petitioner produced Dr. Akhtar Aleem Hashmi, Medical Superintendent, Sargodha who on 17th December, 1979 examined him medically and issued a medical certificate showing that in his opinion, the petitioner's age above 25 years. The petitioner also placed reliance on the entries in the electoral roll and his identity-card. In the electoral roll his age was mentioned as 26 years and whereas, according to the identity-card issued on 18th November, 1975 he was about 24 years of age.
3. The learned Tribunal did not place reliance on the medical certificate and maintained that it was based on the report of the radiologist, but neither the latter was examined nor his report which was the primary evidence, proved. The deposition of the Medical Superintendent was categorised as vague and thus discarded. It also compared the petitioner's age as given in the identity-card with the entries in the electoral roll and found that there was a marked difference between these entries, as to the petitioner's age. These documents, therefore, also did not merit consideration with the Tribunal. The evidence produced by the petitioner was thus rejected. On the other hand the school certificate which was proved on the basis of a register maintained by a Government institution, was considered by the Tribunal as relevant under section 35 of the Evidence Act and so also a public document. This piece of evidence heavily weighed with the Tribunal. Thus on appraisal of the evidence of the parties, the learned Tribunal came to the conclusion that on the date of submission of the nomination papers the petitioner's age was less than 25 years and, therefore, he was ineligible to participate in the election.
4. We have beard the learned counsel for the parties and examined the available record. It has been urged on behalf of the petitioner that the impugned order was not based on any legal evidence. His learned counsel drew our attention to rule 8 (3) of the Local Councils (Election Petition) Rules, 1979 to contend that the provisions of the Evidence Act are applicable to the proceedings before the Election Tribunal, but the school-certificate has not been proved in accordance with law. He referred to the testimony of Abdur Razaaq and pointed out that the certificate Exh. P. 1 was issued by him on the basis of the 'admission-register' of 6th class, the entries whereof as per his statement were copied from the School-leaving certificate of 5th class but neither this certificate nor the petitioner's school record in respect of 1st to 5th class was produced by him before the Tribunal. It was thus contended that in the absence of the latter record, the certificate Exh. P. 1 could not have been accepted as evidence of the petitioner's age. For his these submissions, the learned counsel sought support from Raja Janaki Nath Roy and others v.
Jyotish Chandra Acharya Choudhury. In this precedent reliance was not placed on the statement in a school register as there was no evidence that on what material the entries about the plaintiff's age were made therein. He also cited Mohammad Nawaz Khan v. The Collector District Gujranwala which relates to an election matter and the school-certificate was not accepted as proof of age. In this judgment a tendency on the part of the parents to give a younger age of Schoolboys than they actually possessed, was alluded to. The learned counsel further referred to Asa Nand v. Gian Chand in which it has been laid down that the entries in the School-register are of little value. He also laid emphasis on the testimony of the doctor and urged that the Tribunal illegally discarded the same.
5. As a corollary to these submissions, the learned counsel also criticised the view taken up by the Tribunal that Exh. P. 1 is a public document. On the authority of Khan Mohammad Yusuf Khan Khattak v. S. M. Ayub and 2 others , it was further submitted that Tribunal's decision having been anchored on an inadmissible evidence, was open to judicial review. In this case the Supreme Court detected an overwriting on the signatures of the appellant, in the document on the basis whereof, his election as Member of the National Assembly was declared void, for the reason that he was the Managing Director of a Company, which at the relevant time held contracts with the Government.
The Tribunal, however, did not even advert to this overwriting. Further, when the appellant appeared in the witness-box, he was not confronted with this document. The Tribunal's omission to take notice of the overwriting was treated by the Supreme Court as a failure to perform its duty.
6. It is correct that the impugned order largely rests on the certificate Exh. P. 1 and the Tribunal held it as a relevant piece of evidence under section 35 of the Evidence Act and further maintained that it was a public document. The certificate clearly indicates that the Middle School Gunjial is a Government institution. The Headmaster of the School is thus a public servant and the certificate (Exh. P. 1) was prepared by him from the School-register produced from proper custody. There is ample authority for the proposition that such a certificate duly prepared by an official like him is admissible in evidence, under section 35 of the Evidence Act. It has been held in B. Kala Ram S. Bhag Singh v. Fazal Bari Kha and others that there is a presumption that when a boy was admitted1 2 3 4 5 to Schcool, he was accompanied by a relative who was aware of his age. It may be observed that in the rulings relied upon by the petitioner's learned counsel, the question of admissibility of the School-certificate with reference to section 35 of the Evidence Act was not raised and mostly the evidence value of such a document was considered. It is to be appreciated that the admissibility of a document is altogether different from its evidentiary value. It is always for the Court to see that in the circumstances of a cases what weight can be attached to a particular document but that would have nothing to do with its receivibility in evidence.
7. It is to be seen that the question as to what was the petitioner's age on the date of filing of the nomination appears is a papers question of fact, on which the Tribunal's verdict, on appraisal of the evidence of the parties, was against the petitioner. It is a fact that the radiologist did not appear and his report was also not brought on the record. These factors, which prevailed with the Tribunal in evaluating the doctor's testimony, can by no means be characterised as irrelevant. The Tribunal has given cogent reason in accepting the respondent's evidence and rejecting that of the petitioner. Basically, the petitioner is aggrieved by the appreciation of evidence by the Tribunal, but in exercise of its constitutional jurisdiction this Court can justifiably refuse to correct errors in appreciation of evidence. The learned counsel for the petitioner, has not cited any precedent in which the High Court reversed the appraisal of a School certificate by the Election Tribunal. On the other hand we find that in Abdur Rashid v. Khawaja Mahmood Sadiq Addl. Commissioner (Revenue) and Election Tribunal, Sargbdha Division and others, the Election Tribunal disqualified a successful candidate on the strength of entries in his matriculation certificate which disclosed that he was less than 25 years and in hearing the writ petition, this Court declined to intervene as there was no jurisdictional defect in the impugned order.
8. The question as to whether or not the certificate Exh. P. 1 is a public document does not directly fall for adjudication in this case, for it was prepared and proved by Mr. Abdur Razaaq, P. W. By production of the 'admission-register' of School. In any case, as observed above, this document is admissible under section 35 of the Evidence Act.
9. The highest pitch at which the petitioner's case can possibly be placed is that the provisions of the Evidence Act were misapplied and an inadmissible piece of evidence was entertained by the Tribunal. But as held in Mian Jamal Shah v. The Member, Election Commission and 2 others by misconstruing a provision of law, a Tribunal cannot be said to have exceeded in jurisdiction.
Further, a reference to Badrul Hague Khan v. The Election Tribunal and 2 others will show, that it is not always that allowing of an inadmissible evidence on the record constitutes an act without lawful authority. As observed in Rex v. Murphy by Melony, C. J : - "When the Court has jurisdiction to decide a matter, its jurisdiction is not ousted because it happens to be an erroneous decision, and it certainly cannot be deemed to exceed or abuse its jurisdiction merely. Because it incidentally misconstrues a Statute or admits illegal evidence, or rejects legal evidence."
' Thus even if the Election Tribunal has gone wrong while acting within jurisdiction that would not furnish a valid basis to interfere with the impugned order. In Mohammad Hussain Munir and others v. Sikandar and others it has been laid down that- "It is well-settled that where a Court or a Tribunal has jurisdiction and it determines that question, it cannot be said that it acted illegally or with material irregularity merely because it came to an erroneous decision on a question of fact or even of law."
As regards the petitioners reliance on "Khan Mohammad Yusuf Khan Khatak v. S. M. Ayub" we do not think that a dictum contrary to the pronouncements made in these precedents was intended to be laid E down. In our view the impugned order does not suffer from any illegality much less a jurisdictional error, to justify its removal through judicial review.6 7 8 9 10
9. For the foregoing reasons we do not find any merit in this writ petition. Accordingly, it is dismissed but the parties are left to bear their own costs.
AIR 1941 Cal. 41 PLD 1960 Lab. 1123 AIR 1936 Lab. 598 PLD 1973 SC 160 A I. R 1941 Pesh. 38 PLD 1966 Lah. 216 PLD 1966 SC 1 PLD 1963 SC 704 (1921) 2 I R 190 PLD 1974 SC 139