' KHAWAJA MUHAMMAD SAEED, J.---This appeal, with leave of the Court, is directed against the judgment of the High Court passed on 16-6-2001.
2. The facts relevant for the disposal of this appeal, briefly stated, are that in the last elections held for Azad Jammu and Kashmir Legislative Assembly, the appellant herein, filed his nomination papers from Constituency No,LA-18 Poonch-2 before the concerned Returning Officer. Prior to these elections an amendment was made in section 5(2)(xxv) of the Azad Jammu and Kashmir Legislative Assembly Election Ordinance, 1970, whereby a new disqualification was added, which reads as follows:-- "(2) A person shall be disqualified for being elected or chosen and for being a member: if;
(xxv) he does not have academic qualification of Matriculation or equivalent from a recognized Institution."
3. The appellant; herein, had failed to append his Matriculation Certificate with his nomination papers as such his nomination papers were rejected by the Returning Officer on 7-6-2001. The order of the Returning Officer was assailed in appeal before the learned Chief Election Commissioner by the appellant who rejected his appeal on the same ground vide his order dated 13-6-2001. The appellant availed the Constitutional jurisdiction of the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, against the aforesaid orders but the learned Chief Justice of the High Court dismissed his writ petition in limine on 16-6-2001. The orders of Returning Officer and Chief Election Commissioner which culminated into the order of dismissal of writ petition of the appellant dated 16-6-2001, have been assailed in this appeal with the leave of the Court.
4. During the pendency of the appeal before this Court the appellant moved an application on 5- 3-2002 seeking an amendment in his appeal through which he wanted to challenge the Notification dated 10-7-2001 whereby private respondent No,3 was notified by the Chief Election Commissioner as returned candidate from Constituency No,LA-18 Poonch-2. This application was allowed by us vide our order dated 9-4-2002.
5. Raja Muhammad Hanif Khan, the learned counsel for the appellant, argued that the appellant was Matriculate who was given Commission in Pakistan Army where the required minimum qualification was Matriculation. He supported his contention through Discharge Certificate issued on the request of the appellant by C.O.R.O., GHQ, Rawalpindi on 30-6-19,97, whereby his qualification has been shown a Matric. He also relied upon a photo at copy of the Certificate issued by C.O.R.O., GHQ, Rawalpindi whereby his civil qualification maintained in the Army record is entered as Matric. According to him it is a proved fact that upon the amalgamation' of A.K.R.F. The documents, of the officers belonging to A.K.R.F., including the appellant, had been transferred to C.O.R.O., GHQ, Rawalpindi from where the Matric Certificate of the appellant has been misplaced.
He in this connection placed reliance upon a letter addressed to the appellant by the concerned Officer of GHQ, Rawalpindi. According to the learned counsel these documents tendered by his client should have been taken as secondary evidence by the Returning Officer, Chief Election Commissioner and the High Court and remedied his client. According to the learned counsel in the light of this evidence the Returning Officer was not justified in law in rejecting the nomination papers of his client. He further argued that the nomination papers of his client were rejected on mala fide reasons in order to extend undue benefit to his opponent. According to him admittedly in Army, right from very beginning no person could be recruited to the rank of Second Lt. Who was lacking at least Matric qualification. The presumption of correctness is attached to the official acts, therefore, on the basis of presumption of law the Chief Election Commissioner should have allowed his client to contest the elections and the learned Chief Justice in the High Court should have taken the notice of the conduct of the Returning Officer and failure of the Chief Election Commissioner in redressing the legally justified grievance of his client. According to the learned counsel this Court has got very wide powers under Order XLIII, rules 5 and 6 of the Supreme Court Rules, 1978, as such should pass appropriate order in favor of his client. He placed reliance upon a case titled Sardar Nazir Ahmad Khan v. Muhammad Shaukat Khan and 6 others (1999 M LD 1193). In this case one Ali Asghar was not impleaded in appeal as a party. A request was made on behalf of the appellant that this Court has got very wide powers to implead a party even after the period of limitation prescribed for filing an appeal if a case of bona fide mistake is made out. The request was allowed by this Court. This case has got distinguishable features and has nothing common with the facts of the present case. Raja Muhammad Nand Khan, the learned counsel for the appellant, further argued that his client in support of his appeal before the learned Chief Election Commissioner had raised various grounds which were not attended to by him; even the same were not properly taken into consideration by the High Court.
6. While opposing the arguments of the learned counsel for the appellant, Mr. M. Tabassum Aftab Alvi, the learned counsel for respondent No,3, argued that under the amended law it was mandatory for the candidate who was interested in contesting elections for the Legislative Assembly to produce Certificate of Matriculation or equivalent from any recognized Institution.
According to him admittedly no such certificate was produced by the appellant before the Returning Officer, therefore, he had no alternative but to reject his nomination papers. He further argued that alongwith his memo. Of appeal, the appellant had not appended his Matriculation Certificate or any other Certificate of a Recognized Institution equivalent to Matric, therefore, the learned Chief Election Commissioner had no option but to reject his appeal. He further argued that even with his writ petition the appellant had not appended either the Certificate of Matriculation or any other Certificates of any recognized Institution equivalent to Matric, therefore, the learned Chief Justice in the High Court in the light of the latest amendments effected in section 2 of the Azad Jammu and Kashmir Legislative Assembly (Elections) Ordinance, 1970, (hereinafter to be referred as the Election Ordinance, 1970) was constrained to dismiss his writ petition in limine. He further argued that the success of his client cannot be challenged in a writ petition. According to him the only remedy available to the appellant was to challenge his election through election petition which was not done by him, therefore, the appeal even on this ground is liable to be dismissed. He in support of his contention placed reliance upon subsection (1) of section 49 of -the Election Ordinance, 1970, which reads as follows:- "49. (1) No election shall be called in question except by an election. Petition made by a candidate for that election."
7. We have considered the respective arguments of the learned counsel for the parties and gone through the record of the case made available by the parties before us. The appellant always enjoyed the confidence of the people of his Constituency, as except once he was always notified as returned candidate of his constituency. Prior to the present General Elections of the Azad Jammu and Kashmir Legislative Assembly, a disqualification was added through clause (xxv) of subsection (2) of section 5 of the Election Ordinance, 1970, whereby a candidate who does not possess the Academic qualification of Matriculation or equivalent from a recognized Institution was debarred to contest elections for the Legislative Assembly. The case of the appellant is that he got Commission in A.K.R.F. As Second Lt. At the time of his recruitment in Army as Second Lt., he had submitted his Matriculation Certificate to the Army Authorities which was kept in his service record.
On the basis of Matriculation Certificate the entry was made showing appellant Matric in Army papers. It is an admitted fact that later on A.K.R.F. Was amalgamated in Pakistan Army. However on account of amalgamation of A.K.R.F., the Army Officer have given in writing to the appellant that his Original Certificate is not traceable. The appellant's case is that he passed his Matric Examination in 1946 from Bombay Board. As a very short period was available to him, therefore, he could not obtain the copy of his Matric Certificate from Bombay Board in order to present the same before the Returning Officer, or the Chief Election Commissioner. In support of his Matric Qualification the appellant has placed reliance upon the following documents:--
(1) Attested copy of letter dated 30-1-1997 by C.O.R.O., GHQ, Rawalpindi Annexure PF/1, which reads as follows:-- "No civ edn Certificate is held in the record of offr maintained in this office. However, as per long roll of offers for data is recorded:--
(a) PA No. ACO-411
(b) Rank 2/Lt.
(c) Name Khan Bahadur Khan
(d) Father's Name Mohabat Khan
(e) Civ Qual Matric (0 Mil Qual 1st Class English
(g) Address: Vill. Phul Jahari, P.O. Tarkhel Police Station Hajira. Teh. Sundhanooti ' District Punch Azad Kashmir."
(2) Attestation provided to him on his request by one Mehboob Hussain Major (Retired) for OIC, which reads as follows:-- "It is certified that as per record of service maintained by Central Officers Records Office, General Headquarters, Rawalpindi, Civil Qualification in respect of ACO-411 2/Lt. Khan Bahadur Khan is Matric.'
(3) Discharge Certificate issued to him on his written request by one Ahmed Zia Babar, Lt. Col. For Commandant to the following effect:-- "(1) Efforts have been made in the centre. To trace out your Civil Education Certificates from the available old record but no clue of the same is available at this stage in the Centre/Record Wing.
Consequent upon the amalgamation of the A.K.R.F., the documents of the A.K.R.F., officers including yours have already been transferred to C.O.R.O., GHQ."
(2) Reply received from C.O.R.O. GHQ, bearing No,CORO/ACO411/NE/Rec. Dated 30th January, 1997, is enclosed in original for your reference and record, please." . The perusal of the above-referred documents prima facie would reveal that at the time of his recruitment in the Army as Second Lt., the appellant had the qualification of Matric to his credit.
However, his Matric Certificate is not available with the appellant as according to him he had furnished his certificate to the Army Authorities for keeping it in his service record which according to the above-referred documents stood misplaced as prior to 1960 the A.K.R.F. Was amalgamated with the C.O.R.O., GHQ, Rawalpindi and the Original Certificate on account of this reason was not traceable.
9. TO first question we have to decide is as to whether these documents are admissible in evidence as secondary evidence under Article 74 of the Qanun-e-Shahadat, 1984 and if this question is resolved affirmatively then this Court would be Justified to annul the orders of Returning Officer, Chief Election Commissioner .And the High Court. Article 74 of the Qanun-e-Shahadat, 1984, is the true copy of section 63 of the Evidence Act, 1872. Article 74 of the Qanun-e-Shahadat, 1984, has been couched in the following words:-- "Secondary evidence. Secondary evidence means and includes.---(1) Certified copies given under the provisions hereinafter contained.
(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies.
(3) Copies made from or compared with the original.
(4) Counterparts of documents as against the parties who did not execute them.
(5) Oral accounts of the contents of a document given by some person who has himself seen it."
10. Alongwith this Article certain' illustrations have been given to prove several kinds of secondary evidence. From the perusal of the above-referred provision of law it becomes clear that first of all the aggrieved person who wanted to use this provision for his benefit, has to lay foundation for the purpose of reception of secondary evidence. For this purpose the basic requirement is that the party concerned has to prove that the original document has been lost, destroyed, misled.
Seriously damaged, or tampered with, then such document can be proved as primary evidence as defined in Article 73 of the Qanun-e-Shahadat, 1984, which is equivalent to section 62 of the Evidence Act, 1872. If the primary evidence is not available with such party then secondary evidence must be proved as required by Article 74 of the Qanun-e-Shahadat, 1984. However, the record so constructed is to be used in a cause to which the Qanun-e-Shahadat, 1984, or other rules are applicable. The words 'certified copies' applied in the drafting of Article 74 of Qanun-e- Shahadat, 1984, must first be obtained as required by Article 87 of the Qanun-e-Shahadat, 1984, and if such copies are not available only, then the other type of evidence can be referred to prove such fact which could not be proved in the absence of original or certified copy. In the present case the original certificate, according to the contention of the appellant, has been misplaced and he is not in possession of the same or its certified copy. He has obtained the aforementioned documents to prove that he is Matriculate but unfortunately these documents are not certified as true by the officer who has issued them or in whose custody the original was entrusted and lost, therefore, in the absence of these ingredients we are unable to accept these documents in evidence and certify that these are true. The appellant may seek the declaration to the effect from the Court of Competent Jurisdiction if so advised. He may also obtain the certified copy of the Certificate of Matriculation from Bombay Board. Presently in the light of the documents available on record we don't feel justified in law to interfere with the orders recorded by Returning Officer on 7-6-2001, Chief Election Commissioner on 13-6-2001 and the High Court on 16-6-2001. The appellant has also challenged the notification issued by the Chief Election Commissioner whereby the respondent No,3 has been held returned candidate from LA-18, Poonch-2. The Election of the returned candidate prima facie can be challenged through election petition. In the present case the moot point raised by the appellant has been resolved against him, therefore, in strict legal sense he is not an aggrieved person as such has got no legal justification to challenge the validity of the election of respondent No,3 as returned candidate from the aforementioned constituency.
' In the light of above, finding no force in this appeal, the same stands dismissed with no order as to costs.