The nomination papers filed by the petitioner to contest election to the seat of Naib Nazim in H.C.
No.71, Faisalabad were rejected by the learned R.O. On the ground that he was less than 25 years of age. Learned D.R.O. Dismissed the appeal of the petitioner on 9-5-2001.
2. Learned counsel for the petitioner contends that the learned D.R.O. Has not cared to read the entries in the birth register (Annexures A, B and C) in the light of the attending circumstances of the case reflected by the entries in the electoral list. Further contends that the date of birth recorded in the birth entry was to take precedence over the Matric Certificate and the NIC which in its turn was based on the said certificate. Learned counsel for respondents Nos.3 and 4 who has put in appearance when the case was taken up for hearing has vehemently argued that there is nothing on the record to suggest that birth entry (Annexure B) pertains to the petitioner. Further contends that this Court should not interfere with the findings of fact recorded by the learned D.R.O. And the R.O. Then urges that the petitioner would be estopped from challenging the entry of his date of birth in the Matric Certificate and the NIC which he has himself produced.
3. I have gone through the copies of the several documents placed on record by the parties.
Petitioner is holder of NIC No.250-76-167042. According to his document his date of birth is 15-8- 1976. Copy of his Matric Certificate has not been produced but the learned counsel for the parties agree that the said document also bears his date of birth as 15-8-1976. His name is entered at Serial No.31 of Gharana No.013 in the electoral roll. There is a misprint of his NIC No. But here also there is no dispute in the said NIC No. Which is mentioned in the relevant column. His age as on 1-1- 2000 is recorded as 24 years. However, learned counsel for respondents Nos.3 and'4 is very right that the reliance on the entry cannot be placed in view of the date of birth recorded in NIC mentioned against the name of the petitioner in the said electoral list.
4. Now the case of the petitioner before the learned D.R.O, was that the birth entry (Annexure B), pertains to him. According to this document a son named Nazar Hussain was born to Talib Hussain son of Ghulam Abbas on 1-2-1972. There is no cavil that Talib Hussain son of Ghulam Abbas is the father of the petitioner. The dispute is as to whether the entry pertains to the petitioner with the name of the child recorded therein is Nazar Abbas.
5. Learned counsel for the petitioner argues that it pertains to the petitioner while learned counsel for respondents Nos.3 and 4 argues with equal vehemence that it does not.
6. Before I proceed any further in the matter I deem it necessary to deal with the said objection of the learned counsel that the "finding of fact" recorded by the learned D.R.O. And R.O. Could not be gone into in these proceedings. It should not take me long to dispose of the said objection, on the short ground that the findings recorded by the learned R.O. And the D.R.O. Pertaining to, what can by all means be stated as status of the petitioner in summary proceedings cannot at all be termed as findings of fact as the term is normal understood i.e. These findings have not been arrived at in a trial where the parties had a chance to lead evidence in accordance with law and to rebut each other's case. Now in case of rejection of the papers the petitioner would not be having any remedy.
On the other hand, respondents Nos.3 and 4 are candidates and even in the case the petitioner wins the election they always have the right to challenge the same by filing an election petition wherein of course a trial would be held and the matter will be decided.
7. Now the said entry (Annexure B) has to be considered alongwith other documents on record, of course, prima facie. These documents are birth entry of Tariq Mehmood a brother of the petitioner (Annexure C) and of Mst. Mussarat Nazir, a sister of the petitioner (Annexure A). According to Annexure A the said daughter was born to said Talib Hussain on 24-3-1970. According to Annexure- B Nazar Abbas was born to Talib Hussain on 1-2-1972. According to Annexure C Tariq Mehmood was born to said Talib Hussain on 23-7-1973. `Now the learned counsel for the respondents Nos.3 and 4 at the moment is not in a position to deny that the said lady is not the sister of the petitioner and the said Tariq Mehmood is not his brother. The other important document which needs to be considered is the copy of the electoral list of the area. According to this document Tariq Mehmood son of Talib Hussain bearing NIC No.250-77-1670430 entered at S.No. 30 against Gharana No.013.
Similarly Talib Hussain son of Ghulam Abbas bearing NIC No.250-48-167041 is entered at S.No.32 against Gharana No.013 and Khushnood Iqbal (admittedly the petitioner) is entered at S.No.31, against Gharana No.013. On the ladies side Khalida Parveen wife of Tariq Mehmood is entered at S.No.24, Tasawar Bibi wife of Khushnood lqbal at S.No.25, Sheedan Bibi and Farhat Bibi wives of Talib Hussain at S.Nos.26 and 28 and Rukhsana Bibi.Daughter of Talib Hussain at S. No. 27 against Gharana No.013 are entered.
8. Now whereas the stated case of the petitioner is that the entry in Annexure B pertains to him and that he is the son of Talib Hussain who was born on 1-2-1972, there is no plea and of course there is no material that Nazar Abbas son of Talib Hussain. Was born to him and is alive or dead. Another important factor is that whereas the said boy in Annexure B is stated to have been born on 1-2- 1972, the next child i.e. Tariq Mehmood is stated to have been born on 23-7-1973. Now this period of time is such that there is not much chance of the birth of another child-in-between. Similarly there is no plea and no material that a child intervened the birth of Mussarat Nazir daughter of Talib Hussain on 24-3-1970 (Annexure A) and the said Nazar Abbas on 1-2-1972 (Annexure B).
9. To my mind upon a proper reading of the said material on record the petitioner has made out a prima facie plea that the Annexure B does pertain to him. Once this is prima facie found then the entry in the said birth B register has to take precedence over the entry in the Matric Certificate.
Learned D.R.O. Has proceeded to reject the plea in the following terms in para. 4 of his impugned order:-- "The contention cannot be accepted and it is for obvious reasons and specially for the reason of no viable basis thereof."
The said observation cannot be termed as a finding of fact even prima facie. The impugned order does not spell out any effort on the part of the learned D.R.O. To consider the plea of the petitioner in the light of the available material on record.
10. For all that has been discussed above the writ petition is allowed. Both the impugned orders are set aside. The petitioner to immediately approach the learned R.O. Who shall proceed further in the matter in accordance with law.
11. It is clarified here that nothing observed in this order would influence the decision of an election petition that may be filed by any of the candidates in the electoral unit to question the result of election therein.