' NASIR-UL-MULK, J.---Election Appeal No,1/94 and 2/94 under section 67(3) of the Representation of the People Act 1976 read with Notification No,F-6(53)-F. 1/1976 dated 9-1-1977 are directed against the judgment and order dated 2-10-1994 passed by the Election Tribunal, N.-W.F.P., whereby the election of Zulfiqar Ali, the returned candidate from the National Assembly.
Constituency NA-28, FATA-2 Kurram Agency, was declared void in an Election. Petition filed by Haji Kamal Hussain, an unsuccessful candidate for the said seat. F.A.E. No,1/94 has been preferred by Zulfiqar Ali, assailing his disqualification by the Election Tribunal whereas F.A.E. No,2/94 has been filed by Haji Kamal Hussain whose grievance is that the Election Tribunal, after having declared the election of the returned candidate void had erred by not declaring him elected for he had polled the second highest number of votes. As the appeals arise out of the same judgment of the Election Tribunal and are between the same parties, we therefore, propose to dispose them by this common judgment.
2. Zulfiqar Ali, Haji Kamal Hussain and 27 others contested for seat No,NA-28 FATA-2 in the National Assembly in the general elections held on 6-10-1993. Zulfiqar Ali polled 717 votes while Haji Kamal Hussain with 512 obtained the second highest votes and the remaining candidates trailed far behind. Zulfiqar All having secured the largest number of votes, was declared elected.
3. Haji Kamal Hussain challenged the election of the successful candidate by means of election petition under section 52 of the Representation of the People. Act 1976 on two grounds, namely that the returned candidate was not qualified to be elected as member of the National Assembly by virtue of clause (b) of Article 62 of the Constitution read with clause (C) of subsection (1) of section 99 of the Representation of the People Act 1976, as he was less than 25 years of age at the time of election, and secondly, that he had exerted undue influence and force at the polling station of his village and thereby secured almost all the votes cast at the station. This petition was contested by the successful candidate alone who filed his written statement and on the pleadings of the parties the learned Election Tribunal settled the following issues for determination:- (1). Whether the petition is liable to dismissal for non-compliance of the provisions of law and rules, framed under the Election Laws ?
(2) Whether respondent No,1 was eligible/qualified to contest the election in view of his age, if not, its effect ?
(3) Whether respondent No,1 used undue influence and committed malpractice during elections, if so, its effect ?
(4) Whether the petitioner is entitled to the relief claimed for ?
(5) Relief.
4. To substantiate the ground of under age the petitioner before the Election Tribunal relied solely upon the School Record from Government Primary and Middle School Para Chinar, the alleged former schools of the returned candidate where his date of birth was shown as 15-4-1969, which makes him below 25 years on 6-10-1993. In order to prove the entries in the School Record, the petitioner examined Nazir Hussain, Head Master, Government Primary School No,1, Para Chinar (P.W.
1) and Jan Ali son of Halim Khan, Head Master, Government High School, Para Chinar (P.W. 2).
Through P.W.1 the petitioner proved three documents (Exh. P.W. 1/1). One of the documents is photo copy of the Admission Form dated 16-4-1974 of Zulfiqr All son of Islamuddin ostensibly signed by Islamuddin and Hashim Khan, the then Head Master of Primary School, Para Chinar. The second document dated 22-4-1979 also apparently signed by Hashim Khan is the School Leaving Certificate of Zulfiqar Ali. The third document is an extract from the school Register where Zulfiqar Ali has been shown at serial No,5540 where he has been reported have left the school on 22-4- 1979. All the three documents have given the date of birth of Zulfiqar Ali as 15-4-1969. The witness also produced the original school register which was retained by the learned Election Tribunal till the conclusion of the Election Petition. P.W.2 produced two sheets Exh. P.W 2/1 from the Admission and Withdrawal Register of Government High School, Para Chinar, where Zulfiqar Ali' whose date of birth has been given as 15-4-1969, is shown to have been admitted in the school on 23-4-1979 and his name struck off on 7-10-1979 on account of long absence. P.W.2 produced the original school register with the relevant entries, which was retained by the Election Tribunal. The petitioner recorded his statement as P.W.3 and simply relied upon the School Certificate aforementioned and denied having any personal knowledge about the age of Zulfiqar Ali. He also alleged that the returned candidate had used undue influence in the polling station in his village and that votes of dead persons were also cast. But apart from bald allegation, no attempt was made to substantiate the charges. P.W.4 Inayat Ali Shah, a Polling Agent of the petitioner made a similar allegation.
5. Zulfiqar Ali, the contesting respondent, before the Election Tribunal denied the correctness of the School Certificates aforestated and in fact during his statement at the trial, where he appeared as a sole witness for the respondent, denied having ever gone to the school in question. Anyway, he has consistently pleaded that he was not below the age of 25 at the time of the election. For this claim he placed reliance on the National Identity Card issued to him on 23-12-1984 under the National Registration Act of 1973 which shows the year of his birth to be 1966. For further support, he testified that he became a Malik in the year 1987 after the death of his father, which title could not be given to anybody below the age of 21. Furthermore, he was refused nomination papers for the National Assembly Election of 1990 on the ground that he was below 25 years, based on his date of birth as given in the National Identity Card which was acknowledged as genuine and correct.
6. The learned Election Tribunal confined itself to determination of issue No,2 only as according to the impugned judgment, this issue alone was pressed by the counsel at the time of arguments.
After declaring the documents Exh. P.W.1/1 namely the School Certificates and extracts from the School Register as admissible evidencu, the learned Election Tribunal held; "Moreover, these entries correspond to the entries made in the School Register and they find sufficient support from each other, therefore, these documents being public record made and maintained by public servants in discharge of their duty, are sufficient to hold that the date of birth given by the father of respondent No,1 at the time of his admission in school was correct?
7. Discarding the National Identity Card as evidence of the age of the returned candidate, the learned Tribunal observed that the purpose of the National Identity Card as specified by section 8 of the National Registration Act 1973 was only to enable its holder to obtain passport, permit or other travel documents for going abroad and that its aim and objects as given in para 1.04 of the Registration and Issuance of Identity Card Manual of Instructions are ;
(a) To provide statistical data.
(b) To facilitate identification for evidence in Courts.
(c) To facilitate birth and death registration, and
(d) To facilitate apprehension of criminals and provide general security in the country.
' It was thus held that the proof of date of birth of the holder of the identity card was not one of the its objects. The learned Tribunal further declined to even accept the genuineness of the identity card produced by Zulfiqar Ali and observed; ' The identity card cannot be given any undue importance as respondent No,1 did not admit to prove its authenticity and genuineness. It is commonly known that bogus identity cards are easily available in this part of the country and in such state of affairs it was bounded duty of respondent No,1 to have proved the genuineness of the identity card by production of application form through the registration officials."
' The learned Election Tribunal thus by accepting the entries about the date of birth of the answering respondent in the School Certificate as conclusive proof of his date of birth and discarding the National Identity Card not only on the ground of its not having been proved to be genuine but also for its being devoid of any probative value, declared the election of the returned candidate void for being less than 25 years of age at the time of election. The Tribunal, however, declined to declare the petitioner before it as elected because; "as in the circumstances of this case, the doctrine of thrown away votes is not applicable herein, as such the petitioner cannot be declared elected."
8. Mr. M. Zahoorul Haq Barrister, learned counsel for the appellant in F.A.E.No,1 of 1994, the returned candidate, contended that the School Certificates and extract from the School Register are not public documents and can only be proved by their author, Hashim Khan the Head Master of the school at the relevant time and that even if they are treated as public documents and thus relevant under Article 49 of the Qanun-e-Shahadat Order 1984, the non-production of Hashim Khan, who was cited as witness for the petitioner but not produced, has diminished the evidentiary value of the said documents. In this contest Article 129(G) of the Qanun-e-Shahadat Order was also pressed into service under which a Court may draw a presumption that evidence which could be and is not produced, would, if produced, be unfavourable to a person who withholds it. The learned counsel next contended that the entries about date of birth in school records is an unreliable source of information of the age of the student. For this purpose reliance was placed on Kishori Lal and others v. Firm Lajja Ram (AIR (38) 1951 Punjab 375), Muhammad Nawas Khan v. The Collector District Gujranwala (PLD 1960 (W.P.) Lahore 1123), Khizar Hayat v. Sarfaraz Khan and others (PLD 1968 Lahore 381) and Heasab v. Election Authority Sindh (PLD 1986 Karachi 179).
' It was argued that on the other hand the National Identity Card, which has statutory backing, has higher probative value for determining the age of its holder. In support judgment of the Supreme Court of Pakistan in Mst. Razia Khatoon v. Dr. Roshan H. Nanii (1991 SCMR 840) and Syed Akhtar Hussain Zaidi v. Muhammad Yaqinuddin (1988 SCMR 753) were cited. As for the genuineness of the identity card, it was pointed out that its authenticity was neither objected to in the pleadings nor when it was exhibited in evidence.
9. Mr. Farouk Adam Khan, learned counsel for the appellant in F.A.E. No,2/94 argued that the Exh.P.W.1/1 was public document and the same was admissible under Article 49 of the Qanun-e- Shahadat Order and that it was not necessary to produce Hashim Khan, the then Head Master, to prove their contents as under Article 88, the contents of public documents may be proved on production of their certified copies. In this regard, it was pointed out that besides the School Certificates the school Registers on which the documents were based, were produced in original before the Election Tribunal. Regarding their evidentiary worth it was contended that the School Registers were public record maintained by the Head Masters of the School and entry made herein regarding date of birth of Zulfiqar Ali on the information of his father is to be accepted as proof of the correct age of Zulfiqar Ali. The learned counsel in support of his argument relied upon judgments from the 'Indian jurisdiction, namely, Shiv Ram v. Shvi Charan Singh (AIR 1964 Rajisthan 126), Bhim Mandal v. Magaram Corain (AIR 1961 Patna 21), In Re, Siram Reddi (AIR 1960 Andhra Pradesh 253) and Ramappa v. Bojjappa (AIR 1963 SC 1633). The Identity Card, the learned counsel maintained has little evidentiary value for determining the age of its holder in that neither the age is an identity of a person nor is determination of the age of the holder of an identity card one of the aims of the object for which they are issued. Furthermore, the entry is made on information furnished by the holder of the card, whose information about his own age may not be authentic.
10. Both the parties have questioned not only the genuineness of the documents produced by the opponent but have raised serious objections to the mode of proof of those documents. It would, therefore, be appropriate to settle these controversies before we embark upon the process of evaluating the evidentiary value of the documents. The learned counsel for Zufliqar Ali did not seriously dispute the status of the school certificates and the extract from the School Register as public document and quite rightly so because, although the School Registers are not maintained under any statutory law or rules, but under executive orders nevertheless they have consistently been recoginsed by the Courts to the public documents. The judgments cited above by the learned counsel for Haji Kamal Hussain have declared admission and withdrawal register of a school as public record within the meaning of section 35 of the Evidence Act (Article 49 of the Qanun-e-Shahadat Order) and entries made therein as relevant fact and thus admissible. In Vishnu Maheswa ran Nampoothiri v. Kuruvilla Kichitty Kurvila (AIR 1957 Kerala 103), it was held that the date of birth as entered in School Register was a relevant fact as contemplated under section 35 of the Evidence Act and the same can be proved by production of that record. In Re, Siram Reddi (AIR 1960 Andhra Pardesh 253) while discussing the relevancy of School Register under section 35 of the Evidence Act, the Court held that the section embodies an exception to the rule of hearsay and if its requirements are satisfied it is not necessary for the purpose of proving the entries that the clerk who has made the entries himself should be called as a witness. In the case in hand school Certificates Exh. P.W.1/1 as well as the original register maintained by the school was produced before the Election Tribunal. Thus, the said documents were admissible evidence under Article 49 of the Qanun-e-Shahadat Order and the non-production of Hashim Khan, the author of the documents in Exh.P.W. 1/1 would not make the documents inadmissible.
11. The learned Election Tribunal had found that Zulfiqar Ali had not proved the Identity Card to be genuine as in the wake of bogus identity cards being easily available it was incumbent upon him to have proved the genuineness of the identity card through official records maintained by the National Registration Authorities. For the purpose of resolving this issue, it will necessary to go into merits of the reasoning's given by the learned Election Tribunal. The proceedings before the Tribunal were Civil proceedings. The factum of the identity card was introduced in the written statement by the contesting respondent who had alongwith it also filed its copy. No replication was filed to the written statement, let alone an objection raised in the pleading as to the genuineness of the identity card. Even at the trial at the time when the identity card was introduced in evidence, no objection was raised on behalf of the petitioner either to the mode of its proof or to its genuineness.
If the petitioner at any stage wanted to question the authenticity of the identity card, the answering respondent was entitled in law to have been put on guard so as to enable him to prove the genuineness of the documents by other means if necessary. No doubt, in the cross-examination of Zulfiqar Ali, a suggestion was made to him that his identity card was not genuine, but that was too late in the day. The objection could competently be made either in the pleadings or at the time of its introduction in evidence. No objection was raised at either of the stages in the present case.
Thus, the learned Election Tribunal had erred in holding that the Identity Card was not proved to be genuine. Presumption of authenticity attaches to it and as its original was produced at the trial it is admissible evidence.
12. Having determined that the entries in the school certificates were admissible and properly introduced in evidence and that the identity card was genuine and admissible in evidence, their relative probative value remain to be determined. The credibility attached to the information furnished by school record about the age of a person has been examined by ours as well as the Indian Superior Courts. The learned counsel appearing for Haji Kamal Hussain referred to case-law from Indian jurisdiction only, require examination in the light of facts of the case before us. In Bhim Mandars case ibid, it was the plaintiff who relied upon the entries in the school register to prove that he was a minor at the time of the sale in question. So also the plaintiff in Vishnu Maheswaran Nampoothiri ibid case depended upon the school record in order to show that he was a major at the time of the disputed transaction. In both the cases the defendant had not produced any documentary evidence to the contrary and it was held that the entries made in the school registers being official record maintained by a public servant in the discharge of his official duties is relevant fact as contemplated by section 35 and are presumed to be correct in the absence of other reliable evidence to the contrary. On the contrary in the instant case the contesting respondent before the Election Tribunal had produced documentary evidence in the form of Identity Card about his age to contradict the corresponding entries in the school record. In Shiv Ram's case ibid the issue in which was similar to the one in the present case in that eligibility of the returned candidate was questioned on the ground of his being below the requisite statutory age at the time of election and the Court preferring the entries in the school record, to those in the electoral roll, held that the entries in the school record as to the age of a candidate for election were proved to have been made on the basis of information supplied to .The school authorities by candidates own father, while the entries in previous electoral roll betrayed a motive behind them to enable the candidate to stand for certain election and did not inspire confidence. It was concluded that the entries in the electoral roll were successfully rebutted by the entries in school record. It will be seen that the reasons which prevailed upon the Court for prefering entries in school record to the electoral roll was the absence of motive by the father of the candidate to give false information about his son's age to the school authorities and the possible motive of the candidate to give false information about his age to the authorities preparing the electoral roll so as to qualifying him for contesting elections. In this present case there was no reason for Zulfiqar to give false information to the. National Registration Authorities. The Identity Card was issued to him in 1984 when his father was still alive, the father having died in 1986. He could not have contested elections during the life time of his father as he was not `Lungi` holder, Which is essential for contesting election from the trible area, and which he was made only after the death of his father. Therefore, at the time of giving information about his age to the National Registration Authorities it could not have crossed his mind that he might be contesting elections in the near future so as to motivate him to give an earlier date of birth than the actual one in order to enable him to contest elections in future. It may be added that on 1984 the country was governed by Martial Law and there where no signs of any election. On the other hand, as will be discussed elaborately later, the father may have been motivated to give the age of Zulfiqar Ali at the time of admission in the school less than his actual age in order to benefit him in future if he was to join Government service. Thus, the facts of the present case are not only distinguishable from Shvi Ram's case but for the foregoing reasons Zufliqar Ali did not have any reason to give false information about his age at the time of registering himself with the National Registration Authorities whereas his father had reason to give false information about Zulfiqar Ali's age. In Vishnu Meheswaran Nampoothiri, a criminal case, the issue before the Court was not the age of the accused but an allegedly forged certificates in possession of the accused which did not find support from the school register of a school which had ostensibly issued it and the Court only held that the school register was public record and thus admissible under section 35 of the Evidence Act. Apart from the relevancy of the school record under section 35 of the Evidence Act this judgment does not advance the case of Haji Kamal Hussain much. In Pakistan the probative value of entry of the age in the school records came for examination before the Lahore High Court in Muhammad Nawaz Khan ibid where M.R. Kiyani, C.J., while dealing with the case of disqualification of the returned candidate on the ground of age based on entries in school record held; "It is now widely known that parents give younger age to boys than he actually possess in order that it should help them in Government service. We cannot, therefore, accept these documents as they stand for the purpose of disqualifying a person from the membership of an elective body."
' The same view was taken by the Lahore High Court again in Khizar Hayat's case ibid where again dealing with the election matter it was held that mere entries in the school register is not a proof of the date of birth of a person. Similarly the Karachi High Court in Hisab's ibid case, relying upon Muhammad Nawats case held that the date of birth given in primary school certificates is not conclusive for the purpose of disqualifying from membership of elective body on the ground of age. It is not only the Courts in Pakistan which have viewed with the suspicion the accuracy of the information about the age furnished by the father to the school authorities at the time of admission of his son but the Superfine Court of India in Brij Mohan. v. Priya Brat (AIR 1965 page 282) had observed; "However, much one may condemn such an act of making a false Statement of age with a view to secure an advantage in getting public service, a judge of facts cannot ignore the position that in actual life this happens not infrequently."
' The underlying principle that emerges from the case-law on the subject is that entries about the date of first of a person is, no doubt, admissible in evidence under Article 49 of the Qanun-e- Shahadat Order 1984 but is not only the inconclusive proof of the age of that person but does not carry a high probative value. In the case in hand the production of Hashim Khan, the Head Master who had made the entries in the school register, though was not essential for the purpose of admissibility of the contents of the school certificates but his D non-production has diminished the evidentiary value of the entries made therein. Hashim Khan is reported to be alive and was also cited as witness by the petitioner before the Election Tribunal in the list of witnesses but was never produced at the trial. His production and supportive statement at the trial would definitely have given the petitioner's evidence the impetus it required to prove the correctness of the date of birth of Zulfiqar Ali in the school record as he had first hand knowledge about the information on the basis of which these entries were made. The non-production of such a vital witness for the petitioner compels us to draw a presumption under Article 129 illustration (g) of the Qanun-e- Shahadat that had Hashim Khan been produced he would have given statement not favourable to the petitioner. The documents comprising Exh. P.W.1/1 also do not specify the material on the strength of which the age of Zulfiqar Ali was entered in the school record. In Jagan Nath. v. Moti Ram (AIR 1951 Punjab 377) it was held that school register is not of much evidentiary value to prove the age of a person when there is no evidence to show on what material the entry in the register about the age was made.
13. The probative value of the National Identity Card for the purpose of determining its holder's age was examined by the Supreme Court of Pakistan in Mst. Razia Khatoon ibid where the Supreme Court observed:-, "The probative value of the National Identity Card has been recognised by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which could have prompted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1973 (Act LVI of 1973) to declare on affidavits her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information under section 9 of the Act. The Act also makes penal by clause
(b) of section 11 making of any statement or furnishing of any information which is known or is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking."
14. Besides the Penal consequences that falls in case of giving false information to the National Registration Authorities the augest Supreme Court accepted the accuracy of the age of the holder of the identity card entered in the card additionally for the reason that she has no motive to get false age entered therein. Applying the reasoning given by the Supreme Court for evaluating the evidentiary value of Identity Card to the School certificates in the case in hand it is not difficult to conclude that they carry relatively lesser probative value than the Identity Card. Unlike the Identity Card the entries made in the school record do not have the support of any statutory law nor, is, false information supplied to the school authorities, visited by Penal action. Furthermore, Zulfiqar Ali, as discussed earlier, had no motive at the time of making of the Identity Card to give false information about his age. Thus, comparing probative value of the two opposing documents in the light of the judgment of the Supreme Court in Mst. Razia Khatoon, ibid, we are constrained to hold that on the facts of this case the entries about the age of the returned candidate in the school record have been rebutted by more reliable evidence of corresponding entry in the National Identity Card, according to which his year of birth was 1966 which makes him beyond 25 years on 6-10-1993, the date of election. Apart from the documentary evidence no supportive oral evidence was produced by the petitioner who before the Tribunal stated that he has no personal knowledge about the date of birth of the returned candidate. He did not produce any other witness who may have had such knowledge. On the other hand the contesting respondent had stated that he was given `Lungi` in 1987 which could only be given to a person who had attained the age of 21 years, but this assertion has however not been substantiated by any law. He has further stated that he was born some months after 1965 Indo-Pak War, thus referring to a significant event to suggest that he was born in the year 1966.
15. For the reasons aforestated, FA.E. No,1 of 1994 succeeds and the judgment and order dated 2-10- 1994 of the Election Tribunal N.-W.F.P. Is set aside and the election of the appellant Zulfqar Ali to National Assembly Constituency No,N.A.-28, FATA-II, is restored. Consequently, FA.E, No,2 of 1994 is dismissed. There shail be no order as to costs.
Above are the detailed reasons for our short order of 10-1-1995.