1. Agha Ghulam A.I Buledi, the petitioner herein, has filed this petition under section 52 of the Representation of the People Act, 1976, questioning the election of Gohar A.I alias Ganwar A.I, respondent No.2 herein, on the sole ground that he is below the age of 25 years and was not qualified to contest the elections for a seat of the Provincial Assembly of Sindh Bearing No.PS 14---- Jacobabad 5. The petitioner and respondents 2 to 13 were the contesting candidates. The petitioner secured 6523 votes while respondent No.2 obtained 9805 votes. Respondent No.2 having secured the highest number of votes at the election was declared as the returned candidate by the Returning Officer respondent No. 1.
2. The petitioner claimed that he had raised an objection to the age of the respondent No.2 before the Returning Officer but he brushed it aside without even mentioning such objection in his order accepting his nomination paper.
3. He then approached the Election Commission of Pakistan but did not succeed. He ultimately filed this petition seeking a declaration that the election of respondent, the returned candidate, is void and he be declared as having been duly elected to the said seat in the Provincial Assembly of Sindh.
4. Respondent No. l filed a written statement denying all the averments made by the petitioner in his petition.
5. Gohar A.I, respondent No.2, the returned candidate, filed his written statement. He denied the averments made by the petitioner in his petition and claimed that his actual date of birth is 7th February, 1966 and was therefore qualified to contest the elections. In support of his contention he relied upon issuance of his National Identity Card on 22-1-1987 which was issued on the basis that he was born on 7th February, 1966. He also referred to his admission to Jiand Jamali Primary School, Garhi Khairo, Jacobabad on 1-10-1971 and his date of birth as recorded at the time of his admission is shown to be 7-2-1966.
6. On the basis of the pleadings of the parties the point that need to be considered by this Tribunal is if the respondent No.2, at the time of filling of his nomination form was below the age of 25 years and, therefore, was not qualified to contest the election. In case the answer to this issue is in the affirmative, the second issue that needs consideration is if the petitioner can be declared as returned candidate in place of respondent No.2.
7. The petitioner, in support of his petition, examined Mr. Peter Masih, Liaison Officer working in Saint Francis Grammar School, Quetta. He had brought the record relating to the date of birth of respondent Gohar A.I recorded in the general register of admissions of that school. According to the entry in that register the respondent Gohar A.I was admitted in the school on 9-3-1979 and his name appears at Sr. No.8286 of the general register. According to the entry made in the register, he is said to have been born on 23-7-1974 (Exh. P-1). He further stated that Gohar A.I passed his matriculation examination from the Baluchistan Board of Intermediate and Secondary Education, in the year 1990. He produced photostat copy of the list containing names of the candidates for the matriculation examination, giving their particulars (Exh.P3). Date of birth of Gohar A.I, as mentioned in that list is shown to be 23-7-1974. This witness was confronted with the certificate issued to Mir Gohar A.I son of Mir Ghulam Muhammad issued by the Baluchistan Board of Intermediate and Secondary Education, Quetta, which shown that his age, as recorded in the admission form, is 23- 7-1968.
8. Mr. Rehmatullah, Statistical Assistant, working in the District Registration Office at Jacobabad, was also examined by the petitioner. He produced a form which was filed by applicant Ghulam Muhammad, father of respondent Gohar A.I. According to this form, in its column 11, which requires date of birth of the applicant to be mentioned, indicates that the applicant was 30 years old.
9. Similarly, the particulars of other members of his family including respondent No.2, their dates of births is not mentioned but indicates their ages. He clarified that he did not have full particulars of respondent No.2, Gohar A.I, and he was also not conversant with the signature of Ghulam Muhammad.
10. Shakil Ahmed, Superintendent, working in the office of the Chairman, Board of Intermediate and Secondary Education, Quetta, produced a photostat copy of a form which is filed at the time of examination for matriculation. According to him, this form was filed in the year 1990 and its column 5, which is meant for recording date of birth in words is blank. The form was incompletely filled. He, therefore, asked for additional information and completed the form from the data available. He further stated that Exh.P-3 shows the date of birth of Gohar A.I to be 23-7-1974 while the date of birth shown in its original is 23-7-i968. "68" is recorded as a matter of correction in pen.
11. After examining witnesses mentioned above, the petitioner closed his side.
12. Respondent Gohar A.I examined Ghulshan Jamali, the Headmaster of Jiand Jamali Primary School, Garhi Khairo, Jacobabad. According to him the said respondent was admitted in his school on 1- 10-1971 and his name was removed from the register on 4-4-1972 due to his continuous absence.
13. He produced a certificate in Form 16, which is known as School Leaving Certificate. According to it, the respondent No.2 was born on 7-2-1968. He also produced a copy of the entry made in the register, which shows that the respondent No.2 was born on 7-2-1966.
14. Syed Zahid Hussain Jafri, examined by the respondent No.2, is the District Registrar, District Registration Office, Nasirabad. He produced a photostat copy of the National Identity Card issued to Mir Gohar A.I and certified it to be true copy of the original National Identity Card. According to the entry made in the National Identity Card, the date of birth of Mir Gohar A.I is 7-2-1966. This card was issued to him in the year 1987. Even according to the original record, the date of birth of the respondent No.2 is shown to be 7-2-1966.
15. The respondent No.2 did not lead any other evidence and closed his side.
16. Mr. Usman Ghani Rashid, Advocate for the petitioner, contended that the evidence of age, as produced by the petitioner, be accepted and respondent Gohar A.I disqualified and the petitioner declared to have been elected in his place.
17. Mr. Amir Hani, Advocate for respondent No.2, argued that the respondent has produced evidence about his entry in the primary school and the documents kept at the relevant time in the case of official business show his date of birth to be 7-2-1966. The respondent No.2 had applied for grant of National Identity Card in the year 1987, long before the elections, and his date of birth in such official record is also shown to be 7-2-1966. On the basis of such evidence the respondent No.2 was duly qualified to contest the election, he being over 25 years of age. He further pointed out that the evidence brought by the petitioner is neither here nor there and would not be binding on the respondent No.2.
18. The documents produced by the petitioner give different dates of birth of the respondent No.2 and are contradictory. Even otherwise, according to him, when two sets of evidence contrary to each other are brought on record of a case, the evidence brought by the respondent in his favour is to be preferred. He further contended that the burden of proving that respondent No.2 the returned candidate, was not of the qualifying age on the date he had filed his nomination papers, heavily lay on the petitioner which burden he has failed to discharge. He referred to the case reported in 1991 SCM R 840 on the point that the entries in the National Identity Card shall hold the field unless rebutted by an equally good or better evidence.
19. He further contended that, as the petitioner has not examined himself, the memo. Of petition filed by him, will have not evidentiary value. He referred to the cases reported in PLD 1992 Kar. 295 and PLD 1993 Kar. 775.
20. PLD 1984 Lah.502.
21. The other respondents in the petition did not appear.
22. The petitioner in support of his case that the returned candidate on the date of filing of nomination papers was below the age of 25 years and was disqualified to contest the election examined certain witnesses, who produced entries made in the General School Register at Quetta, entry concerning the candidate for matriculation examination of 1990, record of Board of Secondary and Intermediate Education Baluchistan and entry in the application filed by his father for grant of National Identity Card. As against it, the returned candidate, respondent No.2 herein, has produced evidence of his admission in the primary school, Jiand Jamali, Garhi Khairo, Jacobabad and entries made in the application form for grant of National Identity Card to him. Taking the evidence led by the parties in juxtaposition, I find that the evidence produced by the petitioner is contradictory in nature. Different dates of birth of the returned candidate are given according to the documents produced on behalf of the petitioner. The application filed by the father of the returned candidate does not mention the date of birth but approximately mentions the ages of the applicant and his children. The petitioner was not able to produce any other evidence, which could conclusively prove the age of the returned candidate. Respondent No.2 has produced the entries from the Register kept for the purpose of admission to primary school, which is prior in time, and it shows his date of birth to be 7-2-1966. This piece of evidence is further corroborated by the application filed by the returned candidate in the year 1987 for grant of National Identity Card to him, which shows the same date of birth.
23. For the foregoing reasons, I had by my short order passed on 26-4-1994 dismissed the petition.