' The petitioner and the respondents contested election to the Punjab Assembly Seat No,PP-28, Sargodha, held on the 19th of November, 1988. Respondent No,1 Aamer Sultan Cheema polled the highest number of votes (29,582) and he was declared elected vide the Gazette Notification dated the 24th of November, 1988.
2. The petitioner secured the next highest number of votes (13,611) and was obviously defeated like other respondents whose votes were still lesser. He challenged the result by the present petition on the sole ground that respondent No,1 being less than 25 on the date of filing the nomination papers was legally ineligible to contest the election. According to his version, the respondent's date of birth was the 4th of May, 1966, and he claimed support for the same from:-
(i) his record maintained by the Federal Board of Intermediate and Secondary Education, Islamabad;
(ii) his Secondary School Certificate for Examination, 1982;
(iii) his particulars mentioned in the Directory of Aitchison College, Lahore; and
(iv) his National Identity Card No,231-66-250303, dated the 2nd of August, 1984.
' He asserted that the respondent changed it by committing forgery to read as the 4th of May, 1962, in his duplicate Identity Card No,231-88-250303 issued on the 28th of June, 1988; that due to this disqualification, his election was void; and that instead, he himself was entitled to be declared as elected.
3. The respondent contested the election petition. He filed a detailed written statement wherein he tried to explain that though the 4th of May, 1966, was initially shown as his date of birth in the various documents mentioned in the election petition, yet he had got it corrected to read as the 1st of May, 1962, by an order dated the 17th of October, 1988, of the Federal Board of Intermediate and Secondary Education, Islamabad, in pursuance of his application made in that behalf. He added that according to the birth entry, he was born on the 1st of May, 1962: that he had quite lawfully got it corrected through the aforementioned Board; and that the copies of his certificates or the entries made in the record of the Aitchison College were not relevant in the context. Further, he disclosed that on the loss of his original identity card dated the 2nd of August, 1984, he made an application for issuance of its duplicate annexing therewith a copy of his birth entry so as to show in it the 1st of May, 1962, as his date of birth, but again, by mistake it was recorded as the 4th of May,1962. He claimed that he made yet another application for its correction so as to replace it by the 1st of May, 1962; but the Authorities concerned declined to make any further rectification. Last but not the least, he maintained that even in the voters' list prepared in January, 1986, his age was then 23, meaning thereby that he was not a minor on the nomination day. He denied any interpolation or forgery as alleged in the petition.
4. The following issue was framed:- "Whether the respondent was disqualified on the nomination date from contesting the election in question on account of age? 0.P.P."
' Both the parties made statements and led documentary evidence for and against the issue.
5. The plenary position seems to be that the respondent's date of birth] was invariably recorded as the 4th of May, 1966, in quite solemn documents like his Secondary School Certificate (Exh.P.1) the record directories of the Aitchison College, Lahore (Exhs. P.2, P.3 and P.4). The letter of .The District Registrar, Sargodha (Exh. P5), and his application for obtaining duplicate identity card (Exh. P.6). It was changed to read as the 4th of May, 1962 for the first time in his duplicate identity card (Exh.P.7).
No specific reason was advanced for feeling the need of getting the date of birth changed. The respondent's own case was that he thought of getting it corrected after the schedule of elections was announced. It obviously meant that the reason for seeking the correction was nothing but availing a chance to contest the elections by showing him to be eligible age-wise. A fortiori it may not be necessarily a genuine need to get the sort of correction. Conversely it may not have been free from an opportunistic idea of self-seeking.
6. It was on the record that the respondent's father, besides being an M.N.A., was a Graduate. He took exceptional care in bringing him up by giving him education in institutions like the Aitchison College, Lahore, and the Federal Board of Intermediate and Secondary Education, Islamabad, where he had been consistently showing his date of birth to be the 4th of May, 1966. It really called for an explanation why such a worldly-wise, educated, and indeed careful father like that of the respondent committed a mistake in having shown his date of birth wrongly here and there. Such a possibility could have been available in case of an illiterate father, but for a graduate father, the mistake, if any, indeed was incompatible. The father alone could have thrown light as to how he was led to get his son's birth recorded wrongly in such esteemed institutions but the father was not examined as a witness to explain it away. The inference obviously arises against the respondent.
7. The main plank to contest the petition was the birth entry (Exh. P.3) made in the record of the Union Council wherein the respondent no doubt was shown to have been born on the 1st of May,1962. Ordinarily this entry should have been placed implicit reliance upon as it was maintained under the sanctity of section 49 (xxi) of the Punjab Local Government Ordinance, 1979. It was this document which apparently prompted the respondent to get his other record corrected accordingly. His application dated the 28th of June, 1988 (Form 'C' Exh. P.6) made to the District Registration Officer appeared to be the first in the direction. Although he admitted its factum in the cross-examination, yet he vainly chose to deny his signatures thereon. He did not state in the relevant column thereof in a straightforward manner that his birth entry had been incorrectly recorded and that the same may now be corrected in accordance with the Union Council record (Exh.R.3). What instead he stated in Exh.P.6 was that he had lost his original identity card and that a duplicate be issued to him. Surprisingly he made no mention in this application of the fact that his date of birth indeed was the 1st of May, 1962. Contrarily, on the reverse side of this application, his date of birth was still recorded to be the 4th of May, 1966. He had no explanation for this entry except making a deliberate denial of his signatures thereon.
8. It would be appreciated that the birth entry (Exh. R. 3) was not made to correlate with the application for correction (Exh.P.6). It exhibited an attitude on the part of the respondent of indifference towards R.3. Besides, it was on the record that the respondent's own paternal-uncle had been Chairman of the concerned Union Council for one or two terms. Though there was no pointed evidence to show that the respondent's uncle had fabricated this entry falsely, yet it went between the lines that he in his capacity as Chairman of the Union Council was in a position to manoeuvre things in his favour. This appeared to be a big reason to create doubt about the genuineness of the said entry. Reliance was placed upon Ghulam Sadiq v. Naz Ali, etc. [1985 CLC (Lab.) 27371 and Lal Din etc. v. Muhammad Ibrahim P 1. D 1988 Lah. 398 for the view that the entries made in the record of the Union Council relating to death (or birth) could be accepted per se. The main point considered in the precedent cases was in regard to the mode of proving such entries rather than their intrinsic worth. The entry obviously constituted a piece of evidence and had to be assessed in the context of other pieces of evidence for and against the proposition. It was true that as per Muhammad Nawaz Khan v. The Collector, District Gujranwala, etc. [PLD 1960 (W.P.) Lah. 11231 and Heesab v. Election Authority, Sindh at Karachi, etc. (PLD 1986 Kar. 179) usually wrong dates of birth are shown in the school record, yet we have the contrary view in Faisal Sala Hayat v. The Returning Officer (PLD 1977 Journal 295) which appeared to be more in point as there too, the record of the Aitchison College was preferred to all other entries for determining the correct age of the person involved. An attempt was made to belittle the evidentiary value of the record of the Aitchison College (P.2, P.3 and P.4) by showing that the original application made to the College was not signed by the respondent himself, nor was it produced, nor was it shown to have been accompanied by the birth entry made in the record of the Union Council. I do not think these could be the grounds to discredit the College Directories etc. As they have never been challenged so far by the respondent. A presumption would be made in regard to their correctness as the entries made therein invariably were based upon information conveyed to the College Authorities by parents of the A children. Many a time they are quite minors and may have not been required to sign the application themselves. It is the parents who matter and in this case the respondent did not examine his father to have disowned the correctness of those entries. Further, those were quite consistent with the record of the Federal Board of Intermediate and Secondary Education, Islamabad (P.1) and both being complementary supplied corroboration for each other.
9. The respondent sought support from an entry in the electoral roll (R.5) made during the year 1986-87. He was shown therein to be then 23. He claimed that he was more than 25 on the 17th of October, 1988, when he filed the nomination papers for the impugned election. There was considerable authority that age shown in the electoral roll may be final for the purposes of exercising right of vote, but it could be disputed when one is a candidate in the election. Serajul Islam Khan v. Ahsan Ali Mondal, etc, (PLD 1969 SC 5), Abdus Sattar v. Muhammad Jameel, etc. [1984 CLC (Lah.) 22961, and Haji Muhammad v. Ali 9 Bakhsh Shah, etc. (1987 CLC 841) can be safely referred to in this behalf. Thus the electoral roll (R.5) was not final to lend support to the respondent's contention.
10. The respondent got himself medically examined through a Board of Directors at Sargodha and relied upon a certificate (R.1). He did it on his own, without obtaining orders of the Tribunal, and at the back of the election petitioner. One of the doctors was Radiologist who concurred with others in having an opinion that. The respondent was about 27 years of age on the 18th of February, 1990, when he was examined by them. The Radiologist himself was not produced before the Tribunal.
Reliance was placed upon the above Heesab's case support of the claim that one's age could be proved through radiological :amination. There may be no cavil with the proposition of proving age through such examination, but it had to be considered vis-a-vis other evidence available one record. It may supply adequate information in regard to the age if there was other source of supplying the same. But in a case where there was direct evidence, and sufficient too, such medical opinion may be merely persuasive and not final. Counsel for the petitioner showed it to be a trash as it was done without e aegis of the Tribunal and notice to him. Thus, being quite one- sided, it could )t be claimed to be a flawless mode. The letter of the District Registrar (P.5) vealed that at one stage, the respondent's father showed 1967 to be the year of s birth. This was apart from the confusion whether his actual date of birth was c 4th of May, 1966, 4th of May, 1962, or the 1st of May, 1962. Considerable confusion was created either by the respondent himself or his father. Their product in procuring medical certificate of the type of R.1 may not be much above board. I have already pointed out that the Radiologist himself was not examined and his opinion was said to be inadmissible. However, Ch. Mushtaq hmad Khan, Advocate for the respondent laid considerable stress on the point at the report of the Radiologist was exhibited at the instance of the election petitioner and that therefore, he was bound by its effect. Khan Muhammad Yusuf han Khattak v.
S.M. Ayub etc. (PLD 1973 SC 160) (188), Ghulam Muhammad c. v. Mehtah Beg, etc. (1983 SCMR 849), Gulzar Hussain v. Abdur Rehman, c. (1985 SCMR 301), and Muhammad Aslam v. Mst. Gulraj Begum (1989 C M R 1) were referred to for the proposition that if no objection is taken at the proper time against the admission of a document, it would be evidence in the case par excellence. A careful perusal of the Khan Muhammad Yusuf Khan Khattak's case reveals that even if a document may have been admitted formally, it still remains subject to objection on the ground of inadmissibility. The other cases, namely, of Ghulam Muhammad, etc., Gulzar Hussain and Muhammad Aslam, relate to raising the objection in appeal and therefore, are distinguishable .
Absence of the Radiologist himself was material as he had to present himself for cross- examination on behalf of the election petitioner. His opinion, therefore, could not be accepted implicity notwithstanding its having been formally exhibited. There was still another objection to the admissibility of the medical certificate (R.1). Paras 5 and 6 of the notification issued under section 62 of the Representation of the People Act, 1976, prescribed procedure for trial of the election petitions. A list of official witnesses, their justification, and the documents concerning them had to be submitted alongwith the pleadings. The respondent did not submit such a list, or did he otherwise disclose his intention of getting himself medically examined or to produce the doctors as witnesses. Without observing this procedure, it was not open to him to have introduced them as witnesses or relied upon the certificate issued by them. Counsel, however, claimed that the requirements of paras 5 and 6 of the notification related to the election petitioner, and not to a respondent. I am afraid, the abbreviated procedure equally applied to both the parties and he could not abridge it for throwing surprise to the opposite side. The argument that no such objection was raised when the doctor was examined (D.W.1) would not be availing as it could be still objected to on the principle evolved in the Khan Muhammad Yusuf Khan Khattak's case.
11. Last but not the least was the point of throwing away the votes. Counsel urged that disability of die respondent was not so notorious as to attract the principle. He emphasized that the respondent took a lead of about 16,000 votes against the petitioner and that, therefore, it could not be assumed that such a huge amount of votes was simply thrown away. Reference was made by him to Rashid Ahmad Rahmani v. Mirza Barkat Ali, etc. (PLD 1968 S.C. 301). Lal Muhammad v. Muhammad Usman, etc. (1975 SCMR 409), Syed Saeed Hassan v. Payar Ali, etc. (PLD 1976 SC 6), Muhammad Ilyas v.
The Returning Officer, etc. (1981 SCMR 233), Ch. Muhammad Hussain v. Election Tribunal, etc. (1982 SCMR 307), and Pir Shujat Hussain Qureshi, etc. v. Alhaj Races Ahmad Qureshi, etc. (PLD 1988 S.C.
118) in order to claim that such a large number of voters may not be disenfranchised.
12. There is some point in urging that the disability suffered by the respondent was not notorious.
Rather, it was based upon complicated facts mostly relating to his record and not personal character. He chose to get corrected half of his record containing date of birth e.g. Of the Federal Board of Intermediate and Secondary Education, Islamabad, and the District Registrar for the purpose of obtaining duplicate identity card. He sought no correction of his record in the Aitchison College. Thus, his minority as a disqualification may not have been so clear to the mind of the electorate as to accept it unreservedly. Conversely, there was reason to regard him as a major person and to vote in his favour. The dictum particularly in the Muhammad Ilyas's case, involving complicated facts did not permit throwing away the votes so as to declare next candidate to be successful. The petitioner's request in this behalf cannot be entertained. As a consequence it would be a case of fresh election.
13. Be that as it may, it was abundantly established that the change in the birth entry of the respondent was not free from blemish. It was obtained after the election programme was proclaimed. Earlier, on no occasion the respondent thought of it, although he was born of a highly educated, a veteran politician, and indeed responsible father. Nor was it explained at any stage as to why the respondent and his father missed to note the birth entry (R.3) all their life earlier, nor could they suggest how abruptly it came to their knowledge synchronising with the proclamation of the general elections, the attempt obviously smaked of manoeuvring in pursuit of sheer opportunism to make a minor a major overnight. According to the bulk of the record of the making of the respondent's own father, his date of birth was the 4th of May, 1966. The so-called correction on the basis of birth entry (R.3) appeared to be futile. He was minor on the date of nomination (the 17th of October, 1988) and was ineligible under Article 62 (b) read with Article 113 of the Constitution and Article 11 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977.
14. As a result, the election petition is allowed with costs to the tune of Rs,10,000. The election of respondent No,1 is held void and a fresh election shall be held in the constituency in accordance with law.
Election .