' QAZI MUHAMMAD FAROOQ, J.---The petitioner Waqas Akram has filed this petition for leave to appeal against the judgment dated 26-9-2002 of a learned Full Bench of the Lahore High Court, passed in Writ Petition No,16731 of 2002, whereby the orders of the Election Tribunal and the Returning Officer dated 11-9-2002 and 29-8-2002 respectively with regard to rejection of his nomination papers were upheld.
2. The petitioner had filed nomination papers to contest election from NA-89 Jhang-IV but the same were rejected by the Returning Officer. The relevant portion of the order reads as under:-- ' "I hold that correct date of birth of the respondent was 26-8-1977 and not 26-8-1974. On 24-8- 2002, he was less than 25 years of age and was disqualified for contesting the forthcoming General Elections. He has submitted wrong affidavit in this regard that he was qualified to be elected as member of National Assembly."
' The appeal preferred by the petitioner was dismissed by the learned Election Tribunal on the ground that he was less than 25 years of age at the time of submission of the nomination papers as according to the Matriculation Certificate his date of birth was 26-8-1977. Thereafter, he filed a writ petition in the Lahore High Court but without any success as the same was dismissed by a learned Full Bench of the Lahore High Court with the following observations:- ' "After hearing the learned counsel for the parties, we are of the view that the writ petitioner has acted in a mala fide manner in claiming his date of birth as 26-8-1974 when he filed his nomination papers on 24-8-2002. He has also sworn a false affidavit to this effect which affidavit accompanied his nomination form. The documents submitted by the petitioner before the Returning Officer such as his certificate of birth, copy of N.I.0 and the entry in the electoral list have been found to be bogus both by the Returning Officer and by the learned Election Tribunal. Such conduct of the petitioner disentitles him to seek any equitable relief in exercise of writ jurisdiction."
3. Mr. Fakhruddin. G.Ebrahim, learned counsel for the petitioner, subjected the impugned judgment to scathing criticism and in the process raised the following contentions:--
(i) The impugned judgment was rendered on 26-9-2002 although on that date the only matter fixed for hearing before the learned Full Bench was C.M. No,1180 of 2002 in the main writ petition. The learned Full Bench transgressed its jurisdiction in dismissing the writ petition when it was neither fixed for hearing nor the counsel for the petitioner had made any request for its hearing.
(ii) The petitioner honestly believed that he was fully qualified to be elected as a member of the National Assembly and had not acted in a mala fide manner in claiming his date of birth as 26-8- 1974. His claim was supported by documentary evidence, including an extract from the Birth Register and the National Identity Card for which he had applied in the year 1992, which was not dislodged. The law is well-settled that evidence as to age in the Birth Register cannot be rebutted by an entry in the record of educational institutions.
(iii) The petitioner had attained the age of 25 years on the Nomination day i.e, 26-8-2002, therefore, he was qualified to contest the election even if his date of birth in the Matriculation certificate is given preference over the date of birth given in the Birth Register and the National Identity Card.
4. Ch. Mushtaq Ahmed Khan, learned counsel for the respondent No,1, submitted that the nomination papers of the petitioner were rightly rejected on the ground of making a false declaration and the proper remedy for him was to file an election petition at t e appropriate stage with the prayer that the election as a whole be declared old.
5. Mr. Aftab Gul, learned counsel for respondent No,5, submitted that the petitioner was disqualified to contest the election as on the date when he ' filed his nomination papers, namely, 24-8-2002, he was less than 25 years of age, according to the date of birth entered in his Matriculation Certificate, and the documents filed by him alongwith the nomination papers in support of the claim that his date of birth was 26-8-19 /4 were found to be forged and fabricated. He further submitted that the petitioner was also not qualified to contest the election under Article 8-D(i)(,) of the Conduct of General Elections Order, 2002 because he had made a false declaration in his nomination papers in the nature of an affidavit that he fulfilled the requisite qualifications and was not subject to any disc.
6. According to Article 62(b) of the Constitution as well as Article 8D(b) of the Conduct of General.
Elections Order, 2002, under which the forthcoming General Elections will be held, and section 99(1)
(b) of the Representation of the People Act, 1976 a candidate is not qualified to be elected as a member of the National Assembly unless he is 25 years of age. However, all these provisions are silent about the date on which the qualifying age is to be determined, therefore, it is necessary to determine the cut-off date when a candidate must be 25 years of age. In view of the expression "the last date for making nominations which shall be the sixth day after the date of publication of the notification" used in section 99(1) (a) of the Representation of the People Act, 1976 and the expression "the day appointed under section 11" used in the definition of the nomination day contained in section 2(xv) (ibid) the qualifying age has to be determined on the last date for filing of nomination papers, notified by the Election Commission of Pakistan. In other words the cut-off date is the last date for filing of nomination papers.
7. The election schedule envisaged by section 11 of the Representation of the People Act, 1976 was notified by the Election Commission of Pakistan on 16-8-2002 according to which the nomination papers were required to be filed on or before 24-8-2002. The schedule was revised on 24-8-2002 and the last date for filing of nomination papers was extended up to 26-8-2002. The petitioner had filed his nomination papers on 24-8-2002 with the claim that according to the National Identity Card and the Birth Register his date of birth was 24-8-1974. His claim did not prevail at any forum and the documents produced in support there were held to be bogus on the ground that the same were in conflict with the Matriculation Certificate in which his date of birth was entered as 26-8- 1977. The authenticity of the Matriculation certificate of the petitioner has not been questioned.
Even if it is assumed that his date of birth given in the Matriculation Certificate override the date of birth given in the Birth Register and National Identity Card, he had attained the age of 25 years on the last date for filing of nomination papers and as such was qualified to contest the election. The Returning Officer as well as the Election Tribunal thus manifestly erred in holding that he was not qualified to contest the election being less than 25 years of age at the time of filing the nomination papers.
8. The nomination papers of the petitioner were rejected by the Returning Officer on the sole ground that he was less than 25 years of age on 24-8-2002 when he had filed his nomination papers and it was mentioned in passing that he had submitted a wrong affidavit that 'he was qualified to contest the election. The appeal preferred by the petitioner was also dismissed by the Election Tribunal on the same ground and no observation at all was made in regard to the affidavit.
The writ petition filed by the petitioner was, however, dismissed by the learned Full Bench of the Lahore High Court on the ground that he had acted in a mala fide manner in claiming his date of birth as 26-8-1974 and had also sworn a false affidavit in respect thereof.
9. The impugned judgment does not contain any finding on the ground on which the nomination paper, was rejected by the Returning Officer. It is also silent about Article 8-D (1)(g) of the Conduct of General Elections Order, 2002 which provides that a person shall not be qualified to be elected as a' member of a House' of the Majlis-e-Shoora (Parliament) or Provincial Assembly unless he is sagacious, righteous and non-profligate and honest and Ameen. Be that as it may, the view is not sustainable being far-fetched and remote. Throwing challenge to the date of birth given in the Matriculation Certificate is not a rare phenomenon and if a candidate adopts such a course of action he cannot be labelled as dishonest and sidelined. A candidate is well within his right to challenge the date of birth given in his Matriculation Certificate and produce documents in support of his claim. The proper approach in such a case is to take the matter to its logical conclusion by accepting one of the two sets of documents on the basis of the case-law on the subject and not to disenfranchise the candidate for supporting his claim with documents containing the date of birth inconsistent with that given in the School Certificate and making a declaration in the nature of an affidavit that he is qualified to contest the election. The finding that the petitioner had acted in a mala fide manner in claiming his date of birth as 24-8-1974 and for that reason was not entitled to seek any equitable relief in exercise of writ jurisdiction is thus unjustifiable.
10. The contention that the proper remedy for the petitioner is to get the election as a whole declared void through an election petition is not tenable for the simple reason that in that eventuality the petitioner having been ousted from the contest shall be debarred from seeking the relief that he be declared to have been duly elected.
11. As regards the first contention raised by the learned counsel for the petitioner suffice it to say that it is evident from paragraph 2 of the impugned judgment that while disposing of C.M. No,1180 of 2002 arguments on the main petition were also heard at the request of the learned counsel for the parties.
Through a short order passed on 1-10-2002 the petition was converted into appeal and by allowing the same the impugned judgment was set aside, the petitioner was held eligible to participate in the forthcoming General Elections and the Returning Officer, NA-89 Jhang-IV was directed to include his name in the list of contesting candidates. The above are the reasons for the said short order.