' FAZAL-UR-REHMAN, J.--- This Constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 has been filed by petitioner challenging the legality/propriety of orders, dated 18-7-2001 and 1-8-2001 passed by respondents Nos.1 and 2 respectively regarding rejection of the nomination papers filed by the petitioner.
2. Briefly stated the facts of the case are that both petitioner and respondent No,3 filed their nomination papers for contesting election for the post of Nazim from Union Council Zindra, Tehsil and District Ziarat. It is stated that the nomination of the petitioner was objected by respondent No,3 on the ground that the petitioner appeared for matriculation examination under Roll No,25279 which was allotted to one Mst. Raheema and it was revealed that petitioner passed his Secondary School Examination under Roll No,28334. The learned Returning Officer has, however, as a result of scrutiny rejected the nomination papers of the petitioner being under age as per provisions contained under section 14(b) of the Balochistan Local Government (Elections) Ordinance, 2000.
Feeling aggrieved the petitioner then preferred an appeal against rejection of nomination papers which was also not accepted by the Appellate Authority vide order, dated 20-7-2001. The petitioner then challenged the orders regarding rejection of his nomination papers before this Court in Constitutional Petition No,477 of 2001. Since the order passed by D.R.O. Was not speaking order, therefore, by consent of learned counsel for parties the matter was remanded to D.R.O. For adjudication in accordance with rules. The learned D.R.O. After hearing the learned counsel for parties and perusing the record rejected the appeal vide order, dated 1-8-2001 in the following terms:-- "The case remanded by the Honourable High Court of Balochistan was tried on 31-7-2001. The Advocate of both the parties were heard. The documents of both the sides produced were, examined.
' The original certificate of Matriculation presented was issued by the Board on 17-7-2001 while the certificate presented on the date of filing of nomination papers on 10-7-2001 bore the date as 1980 which means that on the date fixed for nomination the appellant Mr. Noor Ahmed had no certificate which could prove his age fit for filing of nomination paper.
' All the other documents like local certificate and the B Form for N.I.D. Card presented by the appellant also bore cuttings and were doubtful. In the original identity card date of birth of Mr. Noor Ahmed has been changed which is obviously fake and changed from 1979 to 1974.
' In original local certificate the date of birth of Mr. Noor Ahmed has also been tempered and is re- written by pen.
' In view of the above I am sorry to hold again that the documents of Mr. Noor Ahmed presented as a proof of his legibility of age for candidature are forged, bear cuttings and raise doubts. Therefore, his appeal is rejected."
3. The said orders are the subject-matter of the present petition which has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
4. We have heard Messrs H. Shakil Ahmed and Amanullah Kanrani, Advocates learned counsel for petitioner, learned Advocate-General and Deputy Attorney-General for official respondents while Syed Ayaz Zahoor, Advocate for private respondent. Muhammad Aslam the then Incharge Government High School, Ziarat also happens to be present.
5. Learned counsel for petitioner has contended that the actual date of birth of petitioner is 19-8- 1974 and in the school record the date of birth of the petitioner has been written as 19-8-1974, however, at the time of filing examination forms of Secondary School Certificate Examination inadvertently instead of year 1974 year 1980 was mentioned due to which in the Secondary School Certificate No,143216, dated 28-2-2000, the date of birth has been mentioned as 19-8-1980. He has further submitted that on getting knowledge about the date of birth the petitioner approached the Principal, Government Model High School who issued a letter to Secretary, Board of Intermediate and Secondary Education, Quetta confirming that due to inadvertent mistake the year of birth in the examination forms has been written as 1980 instead of 1974 and further confirmed that in school record the date of birth of petitioner is 19-8-1974 and the petitioner took his Matriculation Examination in 1997. It is stated that the petitioner as per rules applied to the Board of Intermediate and Secondary Education,. Balochistan, Quetta for correcti6n/rectification of the date of birth and deposited the required fee. It is stated that the Board after verification rectified the date of birth on 17-7-2000 and issued duplicate Secondary School Certificate No,158479 mentioning the date of birth of petitioner as 19-8-1974. It is maintained that in other documents like Local Certificate, National Identity Card and' Passport the date of birth has been mentioned as 19-8-1974 and even on medical examination the Police Surgeon on 16-7-2001 certified his age to be above 25 years.
According to learned counsel the forums below were not justified to ignore the rectified Matriculation Certificate which has been issued by the Board of Intermediate and Secondary Education Balochistan, Quetta and the orders passed by the Returning Officer and District Returning Officer are illegal, void, in excess of authority and of no legal effect.
6. On the other hand the petition has strongly been resisted by the learned Law Officers and learned counsel for private respondent by contending that the date of birth of the petitioner .Is 19- 8-1980 and he was not qualified to contest the election. It is stated that in the electoral role the date of birth is 21 years. It has been contended that after rejection of the nomination papers the petitioner on coming to know that for contesting election the age should be of 25 years, managed to temper with the record i,e, his Local Certificate with connivance of some clerk of the Office by incorporating his date of birth as 19-8-1974. It is alleged that he also managed to manipulate the record of Registration Office wherein he in the year 1990 at the time of applying for issuance of National Identity Card got incorporated his date of birth as 20 years i,e, 1979 and thereafter cutting and erasing were done by him by tempering with the record in order to show the same as 1974 instead of 1979 and got issued a duplicate National Identity Card on the basis of the said tempering. It is stated that the petitioner also managed to get a medico-legal certificate from Civil Hospital, Quetta from one doctor on 17-7-2001 in order to show his age about 25 years. It is alleged that on succeeding in manipulation in different records, he then applied to the B.I.S.E. For rectification in the date of birth in respect of his Secondary School Certificate. It is stated that the Board was not vested with the power to correct the date of birth merely on the application. It is stated that according to petitioner he cleared his F.Sc. In the year 1997 whereas the date of birth was got changed in the year 2001. The same has been termed by the learned counsel to have been done with mala fide intention only in order to qualify himself for contesting election. According to learned counsel for private respondent the rectified certificate was not produced before the Returning Officer. Learned counsel has contended that the learned District Returning Officer has exercised the jurisdiction in accordance with law and rules, therefore, the same does not call for any interference. He has also submitted that the petitioner is not entitled for any discretionary relief as prayed for, as he has not approached this Court with clean hands. Learned Advocate-General has also contended that enquiry has already been directed to be conducted in the case.
7. After having given our anxious consideration to the submissions made by the learned counsel for the parties, having gone through the relevant records with their assistance and examining the order of the learned D.R.O. In the light of the contentions, we find that the learned D.R.O. Has made enquiry with reference to the record of the petitioner and we have not been convinced as to how the age indicated in the School Certificate i,e, 19-8-1980 can be ignored and preference would be given to other documents which had been tempered with. Similarly, the Medical Certificate which has been obtained by the petitioner on 16-7-2001 does not indicate exactly that he is above 25 years of age nor the said certificate is supported by other documents regarding assessment of the age. Section 14 of the Balochistan Local Government (Elections) Ordinance, 2000 inter alia prescribes the qualification of a candidate that he should be at least of 25 years of age and the petitioner was not qualified to contest election as per provisions contained under aforementioned section of the said Ordinance. The nomination papers were rightly rejected by the forums below.
We, however, refrain from further comments as the matter is stated to be probed into as the same may prejudice either of the party.
8. Having regard to the abovementioned factors, conduct of the petitioner and relevant record, we are of the view that it is not a fit case for exercise of Constitutional jurisdiction as the High Court does not act in aid of injustice and to perpetuate a wrong. Constitutional jurisdiction being extraordinary is to be exercised to foster the ends of justice and to right a wrong. The observations made by the Honourable Supreme Court in the authority reported in PLD 2001 SC 415 are noteworthy. The relevant portion of which is reproduced below for the sake of facility:-- "High Court in exercise of Constitutional jurisdiction cannot reappraise evidence and come to its own independent finding where finding of fact was recorded by Authority below after giving good reasons in support for it." (1988 CLC 1198). There is no cavil to the proposition that "superior Courts have ample jurisdiction to refuse a relief where granting, it would be tantamount to injustice (1988 SCMR 516 + PLD 1975 SC 331 + PLD 1968 Lah. 1334 (DB) + PLR 1969 (1) W.P. 342 + PLD 1968 Lah. 166 + 1973 SCMR 127), or would perpetuate an illegality (PLD 1991 SC 691 + 1990 CLC 1174 + 1984 CLC 1729 + PLD 1984 Quetta 158 + 1973 SCMR 127) or perpetual injustice (1990 MLD 2192) or for retention of ill- gotten gains (PLD 1984 Quetta 158) or if greater harm is likely to be caused thereby than the one sought to be remedied. Individual interest must be subordinated to collective good. (PLD 1989 SC 166 + 1987 MLD 1098 High Court, cannot come to rescue of a person- seeking its stamp or approval for order or action which was patently unjust, being without jurisdiction and hence void ab initio (1986 CLC 54). Therefore, High Court is not bound to grant relief to a petitioner simply because he was legally entitled to it, if the grant of such relief is immoral, unfair or against the dictates of good conscience and fairplay". (1990 MLD 2192 (DB)). It hardly needs any elaboration that High Court is not obliged to press into service its Constitutional jurisdiction in every case in which illegality or void action or order is impugned. The Court is to see, whether the grant of relief prayed for will foster the cause of justice or will it perpetuate injustice. If the Court finds that in a given case though the action taken by the authority is illegal but setting aside of such an illegal action would result in miscarriage of justice instead of advancing the cause of justice, the Court may decline to press into service its Constitutional jurisdiction. In this regard reference can be made to 1990 CLC 954 (DB). We are of the considered view that relief in Constitutional jurisdiction being discretionary should not be granted to hold retention of ill-gotten gains even if for technical reasons impugned order be not strictly justifiable."
9. Keeping in view the peculiar circumstances of the case and the principles laid down in the dictum of the Supreme Court we do not find it a fit case for exercise of Constitutional jurisdiction which is accordingly dismissed. These are the reasons for short order made in the Court on 6-8- 2001. '