' This judgment will dispose of two election petitions namely Election Petition No,50 of 1985 filed by petitioner Fateh All Shah to and Election Petition No,51 of 1985 filed by petitioner Pir Asadtillah Shah.
The petitioners in both these petitions had taken part in the elections held on 28-2-1985 for Sind Provincial Assembly from Constituency No,PS-28, Khairpur-III. Syed Sarkar Hussain Shah, who is one of the respondents in these two petitions (hereinafter referred to as "the respondent", was declared elected from the said constituency having obtained the highest number of votes. The election, petitions were contested by the respondent, who filed written statements in both the petitions. In Election Petition No,50 of 1985 a request was also made that a recounting of all the votes be ordered by the Tribunal. By order, dated 23-12-1985 passed in Election Petition No, 50 of 1985, the request of the petitioner for recounting of all the votes was granted. Recounting was done in the office of the Election Commissioner at Karachi in the presence and under the supervision of Mr. Qamar-uz-Zaman, Deputy Election Commissioner and Mr. Abdul Jabber, Assistant Registrar of this Tribunal. Representatives/advocates of the petitioner and respondent were present during the recounting before the two officers but then on 26-3-1986 learned counsel for the petitioners in both the petitions namely Messrs Imamaly G. Kazi and Abdul Satter M. Dessee stated that they were only pressing these two petitions on the point of age of the respondent.
' The relevant part of the order, dated 26th March, 1986 is reproduced herein below:- "It may be observed here that at the request of the petitioners recounting was ordered by the Tribunal. Learned counsel present state that the recounting has been concluded. Both Messrs Imamaly G. Kazi and Abdul Sattar M. Dessee state that the recounting indicates that no material difference will take place in the result of the election, even if the result of the recounting is accepted. Learned counsel for the petitioners, therefore, state that these two petitions are being pressed only on the ground of age. This statement made by the learned counsel for the petitioners-is taken on record.
The only issues that were pressed and which require decision in these two petitions are as follow:-
(1) Whether the respondent/returned candidate was not, on the nomination day i,e,, 22-1-1985 qualified for being elected as a Member of Sind Provincial Assembly PS-28, Khairpur-III being less than 25 years of age?
(2) If the answer to the issue No,1 is in the affirmative, whether the election of respondent No,1 is to be declared as void and petitioner Fateh Ali Sahito (in Election No,50/85) is to be declared as elected having obtained the highest number of votes after the respondent?
(3) Relief.
' The two election petitions were consolidated. Two witnesses were I examined on behalf of the petitioners namely P.W.1 Abdul Sattar son of Shaikh Karim Bux, Headmaster of Government Primary School-II, Gambat (Exh. 7) and P.W.2 Elahi Bux son of Fakir Muhammad, Senior Teacher in Government High School, Gambat (Exh. 8). One other witness had been summoned by the petitioner namely Senior Civil Judge, Gambat, for production of certain record. The Senior Civil Judge,- Gambat, had appeared before the Tribunal on 11-12-1985. He had brought the entire record which had been summoned by the petitioner in Election Petition No,50 of 1985. By consent, photostat copies of the entire record were prepared and these are brought on record as Exhs. 6 to 6/18.
' On behalf of the respondent four witnesses gave evidence. R.W.1 is Rais Abbas Zaidi, son of Ali Akbar Zaidi, Assistant Commissioner, Mirwah, District Khairpur, Sind (Exh. 9), who was the Returning Officer in respect of the election in question, R.W.2 is Ghaffar Ahmad Qureshi son of Haji Ahmad Qureshi, Assistant Election Commissioner, District Khairpur (Exh. 10). R.W.3 is Nizamuddin Shaikh son of Shahbaz Ali Shaikh, Assistant Director Registration, Khairpur (Exh. 11). The respondent himself was the last witness as Exh.
12.
2. I have heard the arguments of the learned counsel for the parties namely Mr. Abdul Satter M.
Dessee, learned counsel for the petitioner in Election Petition No,50 of 1985; Mr. Imamaly G. Kazi learned counsel for the petitioner in Election Petition No,51 of 1985; and Mr. Nasim Ahmed Faruqui, learned counsel who appeared for the respondent in these petitions.
3. During the arguments the question about the burden of onus of proof had also been raised.
However, in these petitions, evidence had been led by both the parties, which includes oral as well as documentary evidence. In the circumstances, the question of burden of proof has lost importance. On the totality of the evidence on record a finding is to be given by the Tribunal whether on the relevant day i,e, 22-1-1985, the date of filing of nomination papers, the respondent had or had not reached the age of 25 years. The question of burden of proof may again assume importance if on the totality of the evidence it is found that the case of the parties is evenly balanced, in which event the verdict will be against the party on whom the initial burden lay. In this context reference may be made to two decisions, one cited by Mr. Imamaly G. Kazi and one by Mr. Nasim Ahmed Faruqui. Mr. Imamal G. Kazi referred to an Indian decision in the case of Shiv Ram v.
Shiv, Charan AIR 1964 Raj. 126 deciding an appeal against the Judgment of an Election Tribunal. In that judgment of the Rajistan High Court it was observed that where both parties have had fair and full opportunity of the leading evidence and have availed themselves of the same, the question of burden of proof is merely of an academic nature and cannot possibly enter into the final verdict where it is possible to arrive at a definite conclusion one way or the other on the totality of the evidence led by both the parties. The principle of law has been clearly laid down by the Supreme Court of Pakistan in the case of Qaiser Khatoon v. Abdul Khaliq PLD 1971 SC 334 which was cited by Mr. Nasim Ahmad Faruqui. In that judgment of the Supreme Court it was observed as follows:- "In any event, the question of onus of proof has lost its importance now after all the relevant evidence has been adduced and placed on record vide Manaka v . Ma Ha Rao AIR 1950 PC 25. The question of the burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion--vide PLD 1948 P C 171. In such an event the rule is that the party on whom the onus lay must fail. This however, is not the case here, for, the evidence is, by no means, evenly balanced."
4. The relevant provisions, which require a candidate for election to the Provincial or National Assembly to have reached the age of 25 years on the day of nomination are contained in Articles 62(b) and 113 of the Constitution, section 11 of the House of Provincial and Assemblies (Elections)
Order, 1977 and section 68 of the Representation of People Act, 1976. Article 62(b) read with Article 113 of the Constitution and section 11(1)(b) of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, provide that a person shall not be qualified t be elected as Member of a Provincial Assembly unless he is not less than 25 years of age, and section 68(1)(b) of the Representation o the People Act, 1976 provides that the Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the returned candidate was not, on the nomination day, qualified for or was disqualified from, being elected as a member. The relevant provisions of the Constitution and the Elections Laws, therefore, provide that the candidate for election to the Provincial Assembly should be not less than 25 years of age on the nomination day.
In the case of Provincial Assemble Elections 22-1-1985 was the nomination day and as such for being qualified to contest elections to the Sind Provincial Assembly, respondent was required to be not less than 25 years of age on 22-1-1985. The respondent, therefore, should have been born on or before 22-1-1960 so as to qualify for contesting the February, 1985 Elections.
5. Mr. Abdul Sattar M. Dessee, learned counsel for the petitioner in Election Petition No,50 of 1985, referred to the following pieces of evidence in support of the case of the petitioner that on the relevant date i,e, the nomination date, the respondent had not attained the age of 25 years:-
(a) Primary School Leaving Certificate, dated 1st April, 1985 (Exh. 7/1) issued by the Government Primary School, Gambat No,II, District Khairpur, on Form No,16. This certificate (Exh. 7/1) was produced by P.W. One Abdul Satter, Headmaster of -Government Primary School Gambat No,II. In this certificate the date of birth of the respondent is given as 1st March, 1961, according to which date of birth, the respondent had not reached the age of 25 years on the relevant date. According to the evidence of P.W.1 Abdul Sattar, he had issued this certificate on the basis of the General Register of his school. He had brought the General Register with him and against Serial No,898 in the General Register, entries relating to the respondent were ecorded. According to the entries in the General Register as per the evidence of P.W.1 Abdul Satter, respondent's date of birth was 1st March, 1961 and he had joined the school on 5th April, 1966 in Class-I. In cross-examination he stated that the father or guardian, who brings the student for admission to the school is not required to produce any official document showing the date of birth of the student recorded In official register and whatever date is given by the father or guardian is accepted and recorded in the register. He also stated that sometimes the father gives the age of his child, who is being admitted as less than what his actual age is.
(b) High School Leaving Certificate (triplicate) issued by Government High School, Gambat, District Khairpur (Exh. 8/1). This certificate was produced by P.W.2 Elahi Bux, Senior Teacher of Government High School, Gambat. In this High School Leaving Certificate the date of birth of respondent is also given as 1st March, 1961. In his evidence. P.W.2 Elahi Bux had stated that the certificate (Exh. 8/1) was based on the entries made in the school general register, which he had brought and the entries regarding respondent were mentioned against Serial No,4787 in the General Register where also his date of birth was given as 1st March, 1961. In his cross-examination he stated that the entries in the High School Register relating to the respondent were made on the basis of the entries in the Primary School Leaving Certificate of the respondent. He further stated that he was not aware of the exact date of birth of the respondent and whatever he knew about the age of the respondent was on the basis of the entries in the High School Register.
(c) Reliance was placed by the learned counsel for the petitioners on Exh.s 8 to 6/18, which are copies of the record relating to the nomination papers filed by the respondent for the Municipal Elections held in 1983. These documents show that the respondent had held nomination papers in respect of 2 constituencies relating to Municipal Committee, Gambat Elections namely Unit No,13 and Unit No,14. The law relating to Municipal Elections also requires the candidate to be not less than 25 years of age on the relevant date. Once Gul Muhammad Bhatti, as an objector raised objection about the validity of the nomination papers of the respondent in the Municipal Elections of 1983 on the ground that respondent was born on 1st March, 1961 that is, he was below 25 years of age. The objector placed reliance on the School Leaving Certificate (same certificate as has been filed as Exh. 8/1 in the present election petition) which gave the date of birth of respondent as 1st March, 1961. Accepting the objection of the objector Gui Muhammad Bhatti, the Returning Officer rejected the nomination papers of the respondent on the ground of age. Respondent filed appeals against the rejection of his nomination papers and copy of memo, of one such appeal is Exh. 6/10.
In para. 3 of memo. Of appeal the respondent stated that he was born on 14th June, 1958. Paras. 4, 5, 6 and 7 of his memo. Of appeal, dated 29th August, 1983 filed before the Commissioner, Sukkur Division as the Election Appellate Authority are reproduced herein below:-
4. That the father of appellant Syed Imam All Shah maintains a diary and the dates of the birth and death of our family are noted down in his diary ever since the death of grandfather, Syed Haji Reejhali Shah.
5. That the birth shown in the Register of School is not only incorrect but is false, fabricated and concocted one.
6. That the appellant stands bright chances of success if his nomination Form-III from Unit 13 is accepted.
7. That the appellant submits herewith the photostat copies of the diary showing the birth date of appellant, in the year 1958 and attached, and the affidavit of appellant's father will be submitted before on as appellant's father has gone to Karachi."
' Exh. 6/11 is the order, dated 26th August, 1983 of the Senior Civil Judge/Returning Officer, whereby he had rejected the nomination form of the respondent on the ground that his date of birth is let, March, 1961 in the original school certificate and Exhs. 6 and 6/12 are the orders, dated 9th September, 1983 of the Commissioner Sukkur Division/Election Appellate Authority rejecting the two appeals filed by the respondent observing that the appeals were being rejected for the reasons recorded by the Returning Officer. Respondent in his evidence (Exh. 12) has admitted that his nomination papers for the Local Council Elections from Municipality Gambat were rejected by the Returning Officer and that his appeals had also been rejected and that he did not file any further proceedings for challenging the orders of the Commissioner Sukkur Division.
' Apart from the above documentary evidence, there as two other pieces of documentary evidence,, on which reliance had been placed by Mr. Nasim Ahmed Faruqui, learned counsel for the respondent and these are entries in the Electoral Rolls prepared on 1st January, 1979 (Exh. 10/1). The entry No,2493 in the Electoral Roll on the relevant Circle shows that the age of the respondent was 21 years on, 1st January, 1979. The other documentary evidence relates to the issuance of National Identity Cards and these are Exhs. 11/1 to 11/11 and were produced by R.W.3, Mr. Nizamuddin Shaikh Assistant Director Registration, Khairpur
6. In so far as the entries about the age of the voters given in the Electoral Rolls are concerned. It may be observed that these are neither final nor conclusive and the Election Tribunal has jurisdiction to investigate into the question about the age of a candidate for elections and in spite of the fact that the entry about the age in the Elector Rolls may show a candidate to be over the age of 25 years, the Election Tribunal can come to the conclusion on the basis of the evidence on record before it, that the candidate was below the age of 25 years of age. The insertion of the name of a person in Electoral Roll is final in so far as his right to vote is concerned but not as regards his age. Reliance is placed for this on the two reported decisions which wer cited before me:-
(i) Sirajul Islam Khan v . Ahsan Ali Mondal PLD 1969 SC 5. In this case the question before the Supreme Court was whether the Election Tribunal hearing the election petition was competent to inquire as to the age of a person and to set aside his election on the ground that he did not possess the requisite qualification in regard to the age for election to the electoral college. It was urged before the Supreme Court that as the age of the returned candidate was shown in the final Electoral Roll to be 27 years, the Tribunal could not go behind the entry which was final. It was held by the Supreme Court that the right to be enrolled as a voter is different from the right to be a candidate though the latter includes the former and the roll is prepared with a view to determining who are entitled to vote at an election and this is done after going through an elaborate procedure and in this view the right of a person, whose name appears on the roll to vote, cannot be questioned but this did not, however, mean that his right to be a candidate cannot be challenged on the ground that he did not possess the other qualification in this regard. It was observed that the entry in respect of the actual age in the Electoral Roll cannot be placed on the same footing as the other entries.
(ii) Muhammad Tufail v. Muhammad Salim PLD 1967 Kar.
104. In this Full Bench judgment of the High Court it was held that for satisfying himself that the requirement of age stands satisfied, the Returning. Officer can go behind the entry of the age appearing in the Electoral Roll.
7. The entry about the age of the respondent in the Electoral Roll prepared in 1979 showing the respondent to be 21 years of age as on 1st January, 1979 is, therefore, a piece of evidence but this entry is neither final nor conclusive and this Tribunal can go behind this entry. Reference may now be made to documentary evidence relating to the issuance of National Identity Card to the respondent and his family and brought on record as Exhs. 11/1 to 11/11. Exh. 11/2 is an application made by Syed Imam Ali Shah father of the respondent to the Registration Department for issuance of a duplicate National Identity Card on the ground that the original National Identity Card had been lost. This application is purported to have been made on 15th August, 1983. Exh. 11/5 is a copy of the application made by the respondent on 13th November, 1979 and against the heading date of birth, 21 years is mentioned. The application shows that the original National Identity Card had been issued to the respondent in 1979 but according to the respondent the original National Identity Card had been lost. He had shown the Tribunal his duplicate. National Identity Card and a photostat copy of the duplicate National Identity Card issued on 17th August, 1983 has been produced as Exh. 11/11. For issuance of a duplicate National Identity Card, an application by the respondent must have been made but, according to the evidence of R.W.3 the Assistant Director Registration Khairpur, the application of the respondent' for issuance of the duplicate National Identity Card was not available. His explanation was that it had been misplaced. He stated that duplicate National Identity Card had been issued by his office to the respondent on 17th August, 1983 and that two days earlier i,e, on 15th August, 1983 his office had issued duplicate National Identity Card to Syed Imam Ali Shah, father of the respondent.
8. Neither the entry in the Electoral Roll nor the record of the Registration Department, Khairpur, relating to the issuance of the National Identity Card to the family of the respondent can be relied upon for reaching conclusion that the respondent was over 25 years of age on the relevant date.
' In so far as the entries in Electoral Rolls are concerned, "spart from PLD 1969 SC 5 and PLD 1967 Kar. 104 cited above, referent may be made to a decision of Division Bench of the Lahore High Court in the case of Abdus Sattar v. Muhammad Jameel 1984 CLC 2296, where also it was observed that the entries in the Electoral Rolls ar final as regards the right to vote, but this was not final in respect o age when the question arises whether the voter on the Electoral Roll was of the requisite age for being a candidate or member to an electe office. Then there is a recent decisions of a Division Bench of this High Court in the case of Heesab v. Election Sind PLD 1986 Kar. 179, in which decision also the same view has been taken and reference has been made to various reported decision of the superior Courts of our country.
' In so far as the entry regarding the age of respondent in th Electoral Rolls is concerned, it has already been observed that such entry is not final in so far as the age is concerned. Even the respondent had not relied upon this entry about his age in the Electoral Rolls at the time when he had filed his nomination papers for Municipal Elections held in 1983. Mr. Nasim Ahmad Faruqui, learned counsel for the respondent had referred to the provisions of the Electoral Rolls Act of 1974 and had submitted that the entries in the Electoral Roll can be corrected by making an application to the authority concerned and if the petitioners wanted to challenge such entry in so far as the age of the respondent is concerned they could have moved an application for getting the entry in the Electoral Roll about the age of the respondent corrected and as they did not do so, they cannot now challenge such entry. The contention of the learned counsel for the respondent has not impressed me. As observed earlier, entries in the Electoral Rolls are final in so far as the rights to vote are concerned but not a regards the age, and, secondly, as pointed out earlier, the respondent himself did not consider such entry in the Electoral Roll about his ag to be of any weight or substance or else he would have relied upon the same at the time he had filed nomination papers for the Municipa Election held in 1983. Then in answer to a question during -his F cross- examination whether his name in the Electoral Rolls was inserted later on and not at the time of preparation of the original lists in 1979, the respondent answered that he could not say whether his name had been entered in the Electoral Roll List at the time of its preparation originally or later on.
The entry regarding age of the respondent in the Electoral Roll prepared in 1979, is, therefore, of no consequence.
' As regards the document produced by the Assistant Director. Registration, Khairpur, relating to the issuance of National Identity Cards to the family of the respondent, it may first be observed that originally an Identity Card had been issued to the respondent but according to the respondent the same had been lost and, therefore, he had applied for issuance of a duplicate Identity Card, on which Identity Card apparently the respondent had relied upon when he had filed his nomination papers in January, 1985, for contesting the Provincial Assembly Elections. The documents produced by the Assistant Director Registration,- Khairpur, do not contain the application of the respondent for issuance of duplicate Identity Card and the fact that it is not available on the records of the Registration Department is admitted by R .W.2 Nizamuddin Shaikh. Assistant Director Registration, Khairpur. The duplicate Identity Card was seen by me in Court during the proceedings of this Election Petition and a photostat copy was brought on record as Exh. 11/11. This duplicate Identity Card shows that it had been issued to the respondent on 17th August, 1983. If at all the original Identity Card of the respondent had been lost and a duplicate had been obtained on 17th August, 1983, the said duplicate Identity Card must have been obtained for the purposes of placing reliance thereon in connection with the nomination forms filed by the respondent for the Municipal Elections. Exh. 6/3 shows that nomination papers had, been filed by the respondent for the Municipal Elections on 17th August, 1983. The nomination forms were rejected by the Returning Officer by order 26th August, 1983 on the objection raised by objector Gul Muhammad that respondent was born on 1st March, 1961 relying upon the school certificate of the respondent. If duplicate Identity Card had been obtained on 17th August, 1983, it was available with the respondent but it was not presented either before the Returning Officer or before the Commissioner Sukkur Division in appeal. The respondent himself did not place reliance upon the said Identity Card as if it had been produced before the Returning Officer and the Election Appellate Authority in August-September, 1983, it would have shown that the respondent was below age. The entry of age given in the duplicate Identity Card as 13th November, 1969 was, therefore, not correct even according to the respondent himself. In his appeal filed against the order rejecting his nomination forms for Municipal Elections he had relied upon the diary maintained by his father Syed Imam Ali Shah. In his memo. Of appeal he had given another date of his birth i,e, 14th. June, 1958 and this date, according to the respondent, was proved on the basis of th entries made in the diary of his father Syed Imam All Shah. The relevant paragraphs of his memo. Of appeal Exh. 6(10) have been reproduced in the earlier part of this judgment. According to the memo. Of appeal before the Election Appellate Authority, namely( Commissioner Sukkur Division, the respondent had filed Photostat copies of the diary showing the birth day of the appellant (respondent) I the year 1958. The said diary of his father has not been produced. Even the copies of the said diary have not been produced. The obvious inference would be that had the diary or the copies of the relevant pages of the diary been produced, the same would have gone against claim of the respondent that he was over 25 years of age on the relevant date.
' There are other irregularities in the record of the Registration Department. In Exh. 11/9 (Form B) the name of the respondent appears in the first part, in which the names of only those members of his family are inserted, who are above 18 years of age, whereas, according to the entries in the form itself he was below 18 years of age and his name should have appeared in the second part of Form B. Then Exh. 11/10 is purported to be the original application made on original Form B submitted by the respondent and against his marital status, the word (widower) is mentioned. Then, as observed earlier, the respondent himself did not consider the date of his birth given in his duplicate Identity Card as correct.
9. According to the documents three different dates of birth of the respondent appear. The first is 1st March, 1961, which is the date given in the school certificates i,e, Primary School Leaving Certificate and the High School Leaving Certificate. The second is 13th November, 1959 which is given in the duplicate Identity Card of the respondent and the third is 14th June, 1958 given in para. 4 of the memo. Of appeal, dated 29th August, 1983 filed by the respondent before the Commissioner, Sukkur Division against the rejection of his nomination papers for Municipal Elections held in 1983. This date 14th June, 1958 is based upon the entries in the diary maintained by the father of the respondent, according to the case of the respondent in the said appeal.
' The date 14th June, 1958 was based on the entries in the diar of respondent's father but, as observed earlier, such diary has no been produced nor copies of such diary have been produced.
The said date of birth 14th June, 1958 is, therefore, not proved.
' The other date is 13th November, 1959 given in the duplicate Identity Card of the respondent. As observed earlier, the respondent himself could not claim that this was the correct date. It was not relied upon during the Municipal Elections. And then the record produced by the Assistant Director Registration Khairpur relating to the Identity Cards issued to the family of the respondent does not inspire confidence. Some infirmities and irregularities in the record had been pointed out. It may also be pointed out here that in so far as other sons of Syed Imam Ali Shah are concerned, the Assistant Director Registration admitted in his deposition that school certificates of three sons of Syed Imam Ali Shah were available in the record but the school certificate of respondent was not on the file. It was also stated by the Assistant Director Registration that in the records of the Registration Department the exact dates of birth of the other three sons of Syed Imam All Sha were recorded but the exact date of birth of the respondent was not recorded in the records of the Registration Department. Firstly, I 1 appears unnatural that school certificates of other three sons of Syed Imam All Shah were filed at the time of making an application fo issuance of Identity Cards but the school certificate of the respondent was not filed, and, secondly if admittedly the exact date of birth of respondent was not recorded in the records of the Registration Department how could the date 13th November, 1959 be found in th duplicate identity card issued on 17th August, 1983 to the respondent. No reliance, therefore, can be placed upon the date given in th duplicate identity card of the respondent Exh. 11/11.
' The only other specific date of birth that remains on record is 1st March, 1961, which is given in the records of the two schools, where the respondent studied. The case of the respondent in written statement was that the school certificates were not admitted as representing his genuine age and it was further submitted that the respondent's age, according to the governmental and medical record was the proper age. No medical record has been produced. In so far as the governmental record is concerned one could be the entry in the Electoral Roll, which has already been referred to earlier and other is the record relating to the issuance of Identity Cards. Apart from these official records, there is no other record on which reliance has been placed by the respondent. The dates given in the Electoral Roll and in the duplicate Identity Card have not been accepted. The only documentary evidence, which can be accepted and which remains on record, is the age given in the school records i,e, the Primary School and the High School where the respondent studied. No doubt such evidence is not conclusive evidence but apart from this evidence, there is no other evidence on which reliance can be placed. P.W.1 Abdul Satter, Headmaster of Government Primary School, Gambat No,2 in his examination-in-chief had deposed that the entries in the School Register about the age of the student is made on the basis of information given by the father or guardian of the student who comes with the student to the school. This statement was not challenged by the respondent in the cross-examination of the witness. The respondent did not put up the case that in the school records a wrong date of birth has been given. On the contrary, in paragraph 5 of his memo. Of appeal, dated 29th August, 1983 filed before the Commissioner, Sukkur Division Exh. 6/10 his case was that the date of birth shown in the Register of School was not only incorrect but false, fabricated and cooked one. The evidence of the two Masters had been recorded. They had brought the original registers. School Certificates Exhs. 7/1 and 8/1 i,e, Primary School Leaving Certificate and the High School Leaving Certificate have been proved. They are based on the school register. In fact from the questions asked in the cross-examination it does not appear that the case of the respondent was that the two certificates were fabricated or false. No attempt was made by the respondent to make out a case that his age given to the School Authorities was less than his actual age. Reference has been made in the evidence about the dates of births of his three brothers in the registration records to have been made on the basis of their School Certificates. No attempt was made to aver on behalf of the respondents that in their cases also the ages given to the School Authorities were less than their actual ages. It has been noticed that no medical evidence was brought on record, although reliance wasJ being placed in the written statements of the respondent on medical evidence.
' Evidence of the close relations of the respondent and family friends has also not been examined.
Diary of his father was not produced.
' On the totality of the evidence, the date of birth of the respondent has been established to be 1st March, 1961 i,e, he was below 25 years of age on the day for filing nomination papers and asK such he was not qualified to contest the elections for the Provincial Assembly. His bare statement that he was over 25 years on the nomination day does not disturb the finding reached on the totality of the evidence.
10. Mr. Nasim Ahmed Faruqui, learned counsel for the respondent, had relied heavily on a recent decision of this Court in the case of Hessab v . Election Authority PLD 1986 Kar. 179 for the proposition that the date of birth given in the Primary School Certificate is not conclusive for the purpose of disqualifying a person from membership of an elective body on the ground of age. But in this case apart from the two school certificates, the' other evidence about age has not been accepted and then there are several other factors and considerations referred to in para. 9 of the judgment for reaching the conclusion that on evidence the date of birth of respondent that has been proved is what is given in the two school certificates. It may be pointed out here that learned counsel for the respondent had also relied upon the following authorities:-
(i) Muhammad Ayub Khan v. Aman Khan PLD 1971 Jour.
21.--a decision of Justice Sajjad Ah mad Jan as Chief Election Commissioner. In this decision reliance had been placed on the entry regarding age in the electoral rolls. I have referred to the reported judgments of the Supreme Court of Pakistan and also of Sind and Lahore High Courts in the earlier part of this judgment about the entries regarding age in the Electoral Rolls and also the reasons for accepting the entry of age of the respondent in the Electoral Rolls.
(ii) Faisal Saleh Hayat v. Returning Officer PLD 1977 Jour. 295 a decision of Justice Nasim Hasan Shah as Member, Election Commission of Pakistan. This decision goes against the respondent. It was held here that the ascertainment of the qualifying age of the candidate for National and Provincial Assemblies is a constitutional duty and no finality attaches to an entry of age in the electoral rolls as regards the right to contest elections and such entry is not sacrosanct and is very much open to scrutiny by the Returning Officer as also before a forum where the qualifying age of the candidate is called in question.
(iii) Ch. Muhammad Hussain v. Muhammad Nawaz PLD 1969 Jour. 111--This is a decision of Justice Masud Ahmad as Chairman of the Election Tribuqal. The case is distinguishable. As observed earlier, the finding has been reached on the evidence led by both parties.
11. An argument had been raised by Mr. Nasim Ahmad Faruqui, learned counsel for the respondent, that before the Returning Office no objection had been raised by the petitioners about the lack o qualification age and as such the petitioners are precluded from challenging the qualifying age of the respondent or that they had waived their right to make such challenge. The contention has no merit. According to section 52 of the Representation of the People Act, 1976, no election shall be called in question except by an election petition made by a candidate for that election, and one of the ground on which the Election Tribunal is required to declare the election of the returned candidate to be void if it is satisfied that the returned candidate was not on the nomination day qualified from being, elected as a member. The objection about the qualification can be raised before the Returning Officer as well in an election petition. Failure to take objection before the Returning Officer does not debar a petitioner from raising such plea in the election petition.
12. Mr. Abdul Sattar M. Dessee, learned counsel for the petitioner in Election Petition No, 50 of 1985, had made a weak attempt to argue that in case the election of the respondent is declared void, petitioner Fateh Ali Sahto, who polled the highest number of votes after the respondent, be elected declared. The doctrine of "thrown away votes" does not apply to the facts of this case. It is neither alleged in the memo. Of petition nor is there any evidence on record that the lack of qualification of the respondent i,e, he was below 25 years of age on the nomination day, was notorious or well- known to the electors in th constituency. As such petitioner (Fateh Ali Sahto), who polled the next highest number of votes cannot be declared elected. Reference can be made to the following judgments on the principle of thrown away votes.
(i) Rashid Ahmad v. Barkat Ali PLD 1968 SC 301.
(ii) Muhammad Usman v. Lal Muhammad PLD 1975 Kar.
352.
(iii) Lal Muhammad v. Muhammad Usman 1975'SCMR 409.
(iv) Saeed Hassan v . Pyar All PLD 1976 SC 6.
(v) Ch. Muhammad Hussain v. Election Tribunal 1981 SCMR 233.
(vi) Muhammad Ilyas v. Returning Officer 1982 SCMR 307.
(vii) Karam Hussain v. Muhammad Zarait PLD 1984 SC (A J K)
129.
(viii) Muhammad Tariq v. Muhammad Naveed PLD 1984 Lah.
502.
13. As a result, the election of respondent Syed Sarkar Hussain Shah to the Provincial Assembly of Sind from Constituency PS-28, Khairpur-III, is declared as void. Prayer of Petitioner Fateh Ali Sarkar to be declared elected is not granted.
' Parties will bear their own costs.
' Election Petitions Nos.50 /85 and 51/85 stand disposed of.
Election .