1. ' ABDUL KADIR SHATKH, J.-These are two connected petitions for Special leave to appeal from a consolidated judgment of a Division Bench of the High Court of Sind & Baluchistan, Karachi, by which two appeals respectively filed by petitioners Muhammad Usman and Lal Muhammad were dismissed. Both Muhammad Usman and Lal Muhammad, alongwith eleven others, contested elections for a seat in the Sind Provincial Assembly from P. S.-25, Hyderabad-III Constituency. The election took place on 17-12-1970 and Muhammad Usman having secured the highest number of votes at 13,503 was declared as the successful candidate on 20-12-1970. Lal Muhammad who secured the next highest number of votes at 8,163 filed a petition before the Election Tribunal, Sind & Baluchistan, Karachi challenging the election of Muhammad Usman on the ground that he being below 25 years of age was not qualified to be a candidate at the election. Lal Muhammad further claimed that he having secured the next highest number of votes, be declared as the duly elected member of the Sind Provincial Assembly.
2. ' The Election Tribunal held that Muhammad Usman was aged below 25 years on 19-10-1970 when he filed his nomination-paper and was thus disqualified from being elected under Article 9 of the President's Order No, II of 1970. Lal Muhammad's further prayer for being declared as them successful candidate was, however, not accepted ; instead the Election. -Tribunal ordered a fresh election to take place.
3. ' Both Muhammad Usman and Lal Muhammad being aggrieved of this decision filed two separate appeals in the High Court. Both these appeals were dismissed, as stated earlier, and it is in these circumstances that the present two petitions for special leave to appeal have been filed.
4. ' The primary controversy that came up for resolution before the Election Tribunal was regarding the age of Muhammad Usman on 19-10-i970 when he filed his nomination paper. The Tribunal placed reliance on various forms submitted by Muhammad Usman for admission to the Bachelor of Commerce Course and the Master of Commerce Course and also his admission form to the Matriculation Examination. These were produced as Exhs. 78, 79, 80 and 84 through Mr. Nawaz All Bhutto, Deputy Registrar of the Sind University and Ehsan All Shah, Controller of Examination, Board of Intermediate and Secondary Education, Hyderabad. All these documents were written and submitted by Muhammad Usman, and he had himself mentioned the date of his birth therein as 15-6-1947. The Election Tribunal rejected the assertion of Muhammad Usman and the evidence produced by him, including one document Exh. 49 purporting to be a copy of birth certificate issued by Ajmer Municipality that the date of his birth was 14-12-1944. So far as document Exh. 49 is concerned, the Election Tribunal, as observed by the High Court, "was inclined to hold that this is a fabrication but did not ground its decision on such a finding."
5. ' Since the principal submission made before us by Mr. Khalid M. Ishaque, learned Counsel for petitioner Muhammad Usman was the question of admissibility of document Exh. 49, it would be useful to reproduce the following observation made by the High Court in regard to this document :- "Exhibit 49 was brought on record through the evidence of Abdul Jalil who said that he visited India from the 29th of August 1970, to the 30th October 1970 and while he was at Ajmer he obtained from one Abdul Latif this document as he had been requested to do, that is to say, by Usman Kennedy or his relations. This Abdul Latif has not been examined in evidence, and presumably is a resident of India and, in view of the objections that have been raised to the admissibility of Exh .49, it might also be noted that during the period of this witness's visit there was admittedly a High Commissioner for Pakistan in India. Exhibit 49 is a typed document the heading of which is "Ajmer Municipality. Birth Register No, 195, Public Health Department." There follows the entry itself which relates to the birth of a Muhammad Usman whose father's name is given as Muhammad Ishaque and the name of the "Dai" is stated to be Bismillah. Muhammad Ishaque is further particularised by his religion being stated to be Islam and his occupation that of a hotel keeper. No caste is given although there is apparently a column for that purpose. There is a rubber stamp providing for various dates like those of the application, the order and the delivery against which in handwriting these are mentioned as also the name of A. Latif Khan as being that of the applicant. It bears what purports to be the seal of the Municipal Council, Ajmer and yet another rubber stamp which is in these words "True copy, Municipal Council, Ajmer". This rubber stamp has the manuscript signature which is clearly legible as Ganpat Lal and the date 22-9-1970. There is no description of the designation of this Ganpat Lal or anything further. There is, however, an embossed seal bearing in English and Hindi the words "The State of Rajhastan and a symbol". We were quite unable to understand why what purports to be the certified copy of an entry of the record of the Ajmer Municipality should have such a seal and the only guess that Mr. Khalid Ishaque, learned counsel for the successful petitioner, could hazard was that perhaps all the official stationery used in Ajmer bears this seal in order that the chances of fraudulent documents be minimised. For my part I am quite unable to see how this could well be so and although I am far from willing to decide the question of the admissibility or genuineness of this document on this one factor alone, I must confess that it has been the cause of some suspicion in my mind. Certainly the document does not bear as is required by section 73 of the Evidence Act the seal of a Notary Public or of a Pakistan Counsel or diplomatic agent."
6. ' The Election Tribunal had held Exh. 49 to be inadmissible in evidence, and learned Judges in the High Court confirming this view further held that there was quite enough material on the basis of which the Tribunal preferred to rely upon the written admissions of Muhammad Usman as to his birth day being 15-6-1947. In this regard the following passage from the judgment of the Chief Justice who expressed opinion for the Court may also be usefully reproduced :- ' On the side of the petitioner this consisted in the several forms which the successful candidate had filed for the purpose of his University examinations which clearly show the date as being 15th June 1947. On behalf of Usman Kennedy the evidence in the main was the oral evidence of his father, his maternal grandfather and others who knew him in Ajmer. There was also the evidence of an X-Ray specialist who gave it as his medical opinion that he had attained the age of 25 at the relevant time. Now essentially this was a question of fact and if the learned Judge relied upon his admissions of the successful petitioner himself I cannot possibly say in the course of a second appeal (and it is to be remembered that the nature of the appeal before us is one of second appeal) that his finding is vitiated by any error of law......... . . . . ..... . . It is to be remembered that the successful candidate did not attend school at all and the question, therefore, of his stating a birth date did not arise until he wanted to appear for the Matriculation Examination as a private candidate. At this time his father swore an affidavit which mentions the date 15th June 1947. All subsequent forms have been signed by the successful petitioner himself at a time when he was sufficiently grown up and even a major to understand what he was doing and even in the electoral list it is clear that his age was entered on the basis of a later birth date than he now claims. At no time until a few months before the present election did he seek any correction in the record of the University or the Education Department and the explanation offered is that he was under the impression that he was bound to state the same age as he had done while appearing for the Matriculation Examination. I am not myself attempting to decide this question as a matter of fact as if I was original Judge or a Court of First Appeal, and I say all this merely to show that there was quite enough material on the basis of which the Tribunal preferred to rely upon his own written admission."
7. M. Khalid M. Ishaque, learned counsel for Muhammad Usman, petitioner in civil petition for Special Leave to Appeal No, K-143 of 1974 addressed main arguments in support of the submission that Birth Certificate Exh. 49 issued by Ajmer Municipality is admissible in evidence by virtue of the provisions contained in section 82 of the Evidence Act. We are not impressed, for, the High Court has already dealt with this aspect of the case at great length, and reached the following conclusion with which no exception can be taken "20. Upon the basis that this purported certified copy would be receive- able in England and, therefore, by reason of section is receivable here, the document would no doubt be admissible, The presumption, however, as to the signature of the person authenticating it or of the official character which he claims can hardly arise in a case, such as the present, where upon the face of it the document does not so much as describe such official character. If under the signature ol Ganpat Lal had been given his designation and there was something more written upon Exh. 49 by which it could be said that Ganpat Lal was claiming to hold such an office as would make him the officer having the custody of the orignal then there might have beer something to say in favour of both of the admissibility of this docu- ment and what could be held as being proved by it in the absence of rebutting evidence. Nothing, however, appears under the signature except the words "Municipal Council, Ajmer", and obviously Ganpat Lal is not the Municipal Council. On the best view of the matter, therefore, I am quite unable to see how section 82 of the Evidence Act can really help the successful candidate in this case.
21. The manner in which the purported certified copy has been brought from India and then produced before the Tribunal is also not such as leads to any satisfaction. The person who obtained it from the Municipal Council is not a witness and we, therefore, do not even have the advantage of some body getting into the witness-box and saying that he himself went to the Municipal Council and there a certified copy was made and given to him. All that we have is the evidence of Abdul Jalil who says that he got it from one Abdul Latif He could not say how Abdul Latif in turn obtained it and, quite clearly, if he had said so this evidence would have been inadmissible as being hearsay. If in these circumstances we allow section 82 to be used for the purpose of making such a document not merely admissible but also as carrying a presumption virtually, of its genuineness then almost any kind of evidence purporting to be a certified copy of a public" document in a foreign country would be receivable, and, for all practical purposes, carry with it an irrebutabl presumption. I am, therefore, of the opinion that section 82 does not render this document admissible either."
8. ' There is no justification, whatever, for interference with these findings. Moreover, the Election Tribunal preferred to rely upon the documentary evidence consisting of admission of Muhammad Usman himself as to his birth date being 15-6-47, and the High Court refused to interfere with these findings for extremely cogent and proper reasons. It is not the function of this Court to interfere in order to review the evidence at large so as to accept one set of evidence as against the other. The admission forms Exhs. 78, 79, 80 etc. To the various examinations on which reliance has been placed are in the handwriting of Muhammad Usman, and it is not denied that his father Muhammad Ishaque had sworn affidavit Exh. 86 solemnly affirming that his son was born on 15-6- 1947. We, therefore, feel no hesitation in reaching the conclusion that the petition filed by Muhammad Usman is totally devoid of any substance.
9. ' So far as the next question whether the result of unseating Muhammad Usman is to seat Lal Muhammad who secured the next highest number of votes, support was sought in the High Court on its earlier decision in the case of Syed Saeed Hassan v. Piar All Allana (I). The High Court, however, held that in deciding the earlier case, no notice was taken of the decision of this Court in the case of Rashid Ahmed v. Barkat Ali (2) in which it was laid down as a general proposition of law that if the disqualification of successful candidate is not notorious, the votes given for him will not be thrown away so as to give seat to the candidate with the, next highest number of votes.
10. According to the High Court, although Muhammad Usman had not attained the age of 25 years, the electorate had no reason to think so. His nomination paper had been accepted and his name appeared on the electoral list. There was no evidence before the Tribunal that any candidate sought to campaign on the basis that he was not qualified as to age, and it is impossible in the circumstances to hold that his disqualification was notorious.
11. ' The decision in the case of Syed Saeed Hassan v. Pyarali Allana on which reliance was placed is quite distinguishable on facts. No personal disqualification such as attached to Muhammad Usman petitioner herein was alleged against the successful candidates in that case. We would, however, not like to express ourselves further in this regard as that case is subjudice before this Court. However, it may be pointed out that in the case of Rashid Ahmed v. Barkat All this Court approved the general principles contained in paragraph 549 of Halsbury's Laws of England, Third Edition, Volume 14. It would be relevant to reproduce not only this paragraph but also the earlier paragraph 54l as these general principles have necessarily to be applied on the peculiar facts of each case :- "548. Votes struck off for corrupt and illegal practices.-If any person who is guilty of a corrupt or illegal practice or of illegal payment, employment or hiring at an election votes at the election, this vote is void, and accordingly may be struck off on a scrutiny. If any person who is subject to an incapacity, under any enactment relating to corrupt or illegal practices, to vote at a parliamentary election or an election to any public office votes at that election, his vote is void, and accordingly may be struck off on a scrutiny.
549. Votes given to a disqualified candidate.-Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair interference of willful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under rt e Crown. If, However, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given for him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good.
12. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election."
13. ' The principle laid down by this Court in Rashid Ahmad v. Barkat Ali was originally laid down in the case of Gosling v. Veley and another (1), where it was stated :- Where the majority of electors vote for a disqualified person in ignorance of the fact of disqualification, the election may be void or voidable, for, in the later case, may be capable of being made good, according to the nature of the disqualification : the objection may require ulterior proceedings to be taken before competent tribunal, in order to be made available ; or it may be such as to place the elected candidate on the same footing as if he never had existed and the votes for him were a nullity. But in no such case are the electors who vote for him deprived of their votes if the fact becomes known and is declared while the election is still incomplete. They may instantly proceed to another nomination, and vote for another candidate. If it be disclosed afterwards, the party elected may be ousted and the election declared void but the candidate in the minority will not be deemed ipso facto elected. But, where an elector before voting received due notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise and therefore, however strongly he may in fact dissent, and in however strong terms he may disclose his dissent, he must be taken in law to assent to the election of the opposing and qualified candidate ; for he will not take the only course by which it can be resisted, that is, the helping to the election of some other person. He is present as an elector his presence counts as such to make up the requisite number of elections, where a certain number is necessary but he attends only as an elector to perform the duty which is cast on him by the 'franchise he enjoys as elector he can speak only in a particular language; he can do only certain acts any other language means nothing; any other act is merely null. His duty is to assist in making an election. If he dissents from the choice of A, who is qualified, he must say so by voting for some other also qualified he has no right to employ his franchise merely in preventing an election and so defeating the object for which he is empowered and bound to attend. And this is a wise and just rule in the law. It is necessary that an election should be duly made, and at the lawful time the electoral meeting is held for that purpose only and, but for this rule, the interest of the public and the purpose of the meeting might both be defeated by the perverseness on the corruption of election of electors who may seek some unfair advantage by postponement. If then the elector will not oppose the election of A, in the only legal way, he throws away his vote by directing it where It has no legal} force ; and, so doing, he voluntarily leaves unopposed, i,e, assents to the voices of the other electors.
14. ' Where the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice ; for, without that, the inference of assent could not be fairly drawn, nor would the consequence as to the vote be just. But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given : no one can doubt that, if an elector would nominate and vote only for a woman to fill the office of mayor or burgess in Parliament, his vote would be thrown away ; there the fact would be notorious ; and every man would be presumed to know the law upon that fact."
15. ' We find that the High Court has acted on correct principles of law, on the facts of the present case, in directing a fresh election to take place, Instead of declaring Lal Muhammad petitioner as the only elected member of the Sind Provincial Assembly. We, therefore, find no force in the petition.
16. Filed by him. It is, accordingly dismissed.