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Election Petitions Nos.44 and 45 of 1985, decided on 25th May, 1987.

---Interested witnesses--Evidentiary value--No conclusion, held, could be based on evidence of interested witnesses.

---Arts.30 to 36---Admission, effect of, against party making such admission--Admission if clearly and unequivocally made, held, would be the best evidence against party making same--Declarations and admissions made in documents produced in Court, ante litem motam were admissible to prove age of party stated therein, where such admissions were made much before the controversy in question.

---Art.49--Birth Register--Overwriting in column meant for male children--Effect--Where there was overwriting in Birth Register in column meant for male children relating to contesting respondent, and fact of overwriting was admitted in cross-examination by person to whom such entry related viz. contesting respondent, such entry, held, was suspicious and manipulated to assist the person to whom it related.

---Art.11(1)(b)--Constitution of Pakistan (1973), Art.62--Qanun-e Shahadat Order (10 of 1984), Art.59--Medical evidence relating to age--Evidentiary value of--While determining age of person, doctor did not examine teeth, weight, height and voice of person examined, medical opinion about age of person examined, held, would be valueless--Age of contesting respondent as per record clearly established to be less than twenty-five years--Person less than twenty-five years of age would not be competent to contest election to Houses of Parliament or Provincial Assembly in view of Art.62 of the Constitution and Art.11 of Houses of Parliament and Provincial Assemblies (Election) Order, 1977.--[Age] .

---Ss.15, 55 & 68--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Art. 11(1)(b)--Constitution of Pakistan (1973), Art.62--Objection about age of candidate overruled at the time of scrutiny of nomination papers--Objection about qualification relating to age whether could be raised before Election Tribunal- Objection about qualification of candidates, held, could be raised before Returning Officer, and in election petition--Such enquiry before Election Tribunal, however, would commence with prima facie presumption in favour of validity of acceptance or rejection of nomination papers and of validity of voting papers which have been counted--Failure to raise objection before Returning Officer or overruling of objection would not debar petitioner from raising such plea in election petition.

---Ss.55 & 68--Houses of Parliament and Provincial Assemblies (Election) Order (5 of 1977), Art. 11(1)(b)--Constitution of Pakistan (1973), Art.62--Election to Provincial Assembly--Returned candidate being less than statutory age--Effect--Where returned candidate was of age less than statutory age as contemplated by Art.62 of the Constitution and Art.11(1)(b) of Order 5 of 1977, his election to Provincial Assembly was set aside and declared void by Election Tribunal.--[Age].

Naseem Farooqi, Aftab Ahmad Shaikh and Hussaini Shah Rashidi for Petitioners.

Khalid M. Ishaque for Respondents.

Date of hearing: 3rd December, 1986.

By this judgment I intend to dispose of the above two election petitions as they involve common facts and common points of law. The brief facts leading to the filing of the above petitions are as follows:-

The petitioners Pir Anwar Shah and Ahsan Azeem, respondent No.1 and respondents 3, 4, 5, 6 and 7 were the contesting candidates in the last elections of provincial assemblies from P.S. 60 Dadu-I held on 28-2-1985. The last date for filing of the nomination papers was 22-1-1985 while the scrutiny of nomination papers was held on 23-1-1985. The result of the election was notified in the Gazette of Pakistan on 6-3-1985. The votes secured by these eight candidates at the polling were found to be as follows:-

Pir Anwar Shah ... ... ... 189

Ehsan Azeem ... ... ... ... 5,684

Abdul Wahid ... ... ... ... 252

Allauddin ... ... ... ... 144

Muhammad Iqbal ... ... .... 282

Muhammad Umar ... ... .... 115

Malik Asad Sikandar ... ... ... 27,953

Najamuddin ... ... ... ... 76

Accordingly the respondent No.1 was declared elected to the Provincial Assembly seat from this constituency. His election was challenged by these two petitioners who petitioned inter alia that the respondent No.1 was a disqualified candidate, he not having attained the minimum age of 25 years at the relevant date as required by Article 62(b) of the Constitution of the Islamic Republic of Pakistan read with Article 11(1)(b) of the House of Parliament and Provincial Assemblies (Elections) Order, 1977. The petitioner prayed that respondent No.1's election be declared as void.

The respondent No.1 filed written statement. This allegation was denied by the respondent No.1 and his case was that he was much above 25 years at the date of filing his nomination paper. This was made more specific at the time of trial and, in evidence the respondent's case was that he was born on 18-7-1959.

The relevant statutory provisions may now be referred. Article 62 of the Constitution of Islamic Republic of Pakistan lays down the disqualifications for membership of Majlis-e-Shoora (Parliament). The relevant part of Article 62 is as under:-

"62. A person shall not be qualified to be elected or chosen as a member of Majilis-e-Shoora .(Parliament) unless--

(a) .............................................................

(b) he is, in the case of National Assembly, not less than twenty -five years of age and is enrolled as a voter in any electoral roll for election to a Muslim or non-Muslim seat as the case may be in that Assembly."

Article 113 lays down that the qualifications and disqualifications for membership of the National Assembly set out in Articles 62 and 63 shall also apply for membership of a Provincial Assembly as if reference therein "National Assembly" were a reference to "Provincial Assembly".

Article 11(1)(b) of the Houses of Parliament and Provincial Assemblies (Election) Order, 1977 lays down that a person shall not be qualified to be elected as member of Provincial Assembly unless he is not less than twenty-five years of age.

In support of their allegations that the respondent No.1 was below 25 years at all material times, the petitioners adduced oral evidence, namely, they examined themselves besides Rasool Bakhsh and Shaikh Israil and they also produced the following documents:-

The respondent No.1 examined in his turn himself besides Pir Bux Khaskheli, Syed Abdullah Shah, Syed Budhal Shah, Muhammad Hasan and Dr. Ghulam Sarwar and Muhammad Bux and the respondent No.1 produced the following documents:

Of the witness examined by the petitioners, none could give any direct evidence on the question of respondent's age and on the respondent's side, Pir Bux Khaskheli, Syed Budhal Shah, Syed Abdullah Shah who stated that it is in their personal knowledge that the respondent No.1 was born in the year 1959 because the birth of the respondent No.1 was celebrated by late Malik Sikandar. Pir Bux Khaskheli admitted in his cross-examination that he was not aware whether any invitation card was issued because at that time he was 13 years old. This witness contested National Assembly seat election from this constituency. The respondent No.1 withdrew his nomination in favour of this witness. Syed Budhal Shah admitted in his cross -examination that he is family friend of Malik Sikandar. Syed Abdullah Shah also admitted in his cross-examination that he had very close relations with late Malik Sikandar. It is an admitted position that the respondent No.1 supported Syed Abdullah Shah in his election.

These witnesses are interested persons. I find it difficult to base any conclusion on this question on their evidence.

The petitioners produced Exts: 13/4 to 13/11. The respondent No.1 and his late father' Malik Sikandar admitted that the respondent No.1 was Nineteen years old on 27-3-1982. The respondent No.1's late father declared that respondent No.1 was minor. The respondent No.1 admitted in his cross-examination that he filled examination form for appearing in matriculation examination. The date of birth as mentioned in Ext: 13/2 is based on the basis of statements made in the examination form. Same is the position in Board of Intermediate examination. All these documents contain admissions made by the respondent No.1 that he was born on 25-12-1966.

The respondent No.1 to a question in his cross-examination replied that he moved an application for correction of entry in birth register. He did not produce any copy of the application. Even he did not make any attempt to summon the original application from the school. The respondent No.1 admitted in his cross-examination that he did not move any application before the Board of Intermediate for correction of the entry.

The parties to suit No.484/80 were Jehangir Sethna and the respondent No. l through his natural guardian and father late Sikandar Khan. All these documents show that the respondent No.1 was minor when the plaint was presented, that is 25-10-1980. The documents are admissible under section 13 of the Evidence Act. In my opinion the copy of written statement (Ext: 13/5), counter-affidavit of respondent No.1 (Ext: 13/9) and the affidavit of the father of the respondent No.1 produced by the petitioner clinches the matter beyond any doubt and the point needs no further elaboration. In the result the admissions and declarations of respondent No.1 that he was minor and 19 years old on 27-3-1982 in the absence of any explanation or any convincing evidence forthcoming that it was false and nature is binding on him and I hold accordingly.

It is well-settled that a paty's admission as defined in sections 17 to 20 fulfilled the requirements of section 21 of the Evidence Act. Articles 30 to 36 of Qanun-e-Shahadat Order, 1984 deal with admission. An admission if clearly and unequivocally made, is the best evidence against the party making it. The declarations and admissions made in the above documents Exts: 13/2 to 13/11 ante litem motam are admissible to prove that respondent No.1 was born on 25-12-1966. These admissions were made much preceding the election in question. These admissions were entitled to great weight. The petitioners had, shifted the burden on the respondent No.1 to show that they were incorrect. The respondent No.1 has miserably failed to show that these admissions were incorrect.

The respondent No.1 produced certificate issued by the Municipal Committee, Kotri. Lot of argument was addressed as to the evidentiary value of the entry of age of a person in the Birth Register maintained by the Municipal Committee, Kotri. But the learned counsel for both the parties were agreed that these entries are relevant pieces of evidence and slight evidence to the contrary may displace them. The respondent No.1 admitted in his cross-examination that this entry appears at page 139 and thereafter there is no other entry. The respondent No.1 admitted in his cross-examination that there is overwriting on serial numbers 4 and 7 of page 139. The respondent No.1 admitted that entry at serial No.6 shows 27-7-1959 at serial No.7 shows 30-7-1959. The respondent No.1 admitted in his cross-examination that there overwriting on the number of male children after his entry.

The respondent No.1 admitted in his cross-examination that there is over writing after the entry in column pertaining the male children. The respondent No.1 denied the suggestion in cross- examination that this entry has been manipulated by him in January, 1985.

I have examined page 139 of the Register. The last entry was at serial number 8. I find that there is overwriting in the column meant for male children. It seems that firstly number 8 was written and subsequently number 9 was written. Barad was the reporter for this entry. The respondent No. l admitted that this entry was reported by one Barad. He did not disclose in his cross-examination that Barad was the employee of Malik Asad Sikandar. No attempt was made by him to produce Barad or any other person who can say that Barad was the employee or servant of late Malik Sikandar. This pertains to one Arfan Ali. On an examination of the physical appearance of the Register (Ext: 11/1) and entry No.9 (Ext: 11/2) I am inclined to agree with the learned counsel for the petitioners that the entry is suspicious and the entry was manipulated to assist the respondent No-1 and this is not a genuine document which was maintained by the Municipal Committee.

The petitioner examined the ex-Chairman and Accountant of Municipal Committee, Kotri. The respondent No.1 examined Office Superintendent of the Municipal Committee. None of them deposed that the entries were made by them. No attempt was made to examine the author of this entry. It is an unfortunate that birth register of vital statistics are very carelessly maintained by the Municipal Committee, Kotri.

The respondent No.1 also produce certificate (Ext. 17/1) issued by Dr.Samad, Civil Surgeon, Dadu. This Certificate is also not helpful to the respondent No.1. Firstly the Doctor based the certificate only on ossification test. Secondly the Doctor admitted in his cross- examination that he did not take out X-ray of mandible. The Doctor did not take Might, weight and voice of respondent No.1 into consideration while determining age of the respondent No. 1. The doctor admitted in his cross-examination that the age can be above or below 25 years. The doctor admitted in his cross-examination that there can be margin of six months either this side or that side.

The doctor had admitted in his cross-examination that he did not examine teeth of the respondent No.1. He did not see height, weight and voice of the respondent No.1. The Courts have acted upon the opinion of doctor arrived at without conducting any ossification test and based other factors. The doctor answered in cross-examination that he determined the age according to X-ray which was a meaningless answer. The doctor deposed that usually at the age of 14 and 20 cross of ilium erupts. This only proved that the respondent No.1 must be 20 years but not that he must be 25 years.'

In the face of such evidence it would be dangerous to accept the valueless medical opinion that the respondent was 25 years old on 3rd January, 1985.

According to him the head of the humerus unites to the body at the age of 18 years which concludes that the respondent No.1 was over 18 years. The fusion becomes at the age of 18 years and according to him the respondent No.1 had crossed 18 years. Cross of ilium which unites at the age of 20 years. The four pieces of sternum which constitute its body fuse with one another from below upwards, between 14 and 25 years of age and they are fused.

An objection was faintly raised by Mr. Khalid Ishaq with regard to the admissibility of Exts. 13/2 and 13/3 on the ground that these documents are not public documents. It is unnecessary to consider this question as the fact that such an entry was really made in the admission register and in the Board of Intermediate showing the respondent No.1's date of birth as 25th December, 1966 has all along been admitted by him. His case is that this was an incorrect statement made at the request of the General Manager who went to get him admitted to the school. The request was made, it is suggested, to make him appear younger than he really was so that later in life he would have an advantage in seeking public service or practice in Moffassil to show younger age. This explanation is not acceptable firstly he admitted in his cross-examination that he moved an application for correction but no attempt to produce the original application was made. Secondly his father and he himself admitted and made declaration in suit No.484/80 that the respondent No.1 was a minor. Taking all the circumstances into consideration I am of the opinion that the explanation is not acceptable.

The respondent No.1 lastly produced National Identity Card (Ext.17/3). Age in this document was mentioned at his instance. The respondent No.1 did not establish that his father had applied for issuance of National Identity Card.

I need not dialate upon the question of respondent No.1's age further. All aspects of this issue have been discussed herein above. From the evidence do record it stood clearly established that on the date of the nominations the respondent No.1 was less than 25 years of age and I view of Article 62 of the Constitution and Article 11 of the Houses of Parliament and Provincial Assemblies (Elections) Order, 1977, he was not competent to the election for the Provincial Assembly seat from his constituency. His nomination was improperly accepted by the Returning Officer and this improper acceptance has, so far as it concerned the respondent No.1, materially affected the result of this election.

Mr. Khalid Ishaq the learned counsel for the respondent No.1 has submitted that the respondent No.1 also filed nomination papers for National Assembly seat from NA-177 Dadu-1. Pir Zaman Shah one of the candidates filed objections at the time of scrutiny of nomination papers. The Returning Officer overruled the objections. His submission is that this is final and the petitioners cannot raise this objection now. This is devoid of force. I am of the humble view that when the scrutiny of the nomination papers is made by the Returning Officer under section 14 of the Representation of the People Act, 1976 (hereinafter referred to as the Act) and as a result, certain nomination papers are accepted, section 15 of the Act provides that the said acceptance shall be presumed to be valid. In other words, when an election petition is filed by the contesting candidate before the Election) Commission or before the Election Tribunal challenging the validity of the election of the returned candidate, prima facie the acceptance o nomination papers is presumed to be valid and the ballot papers which have been counted are also presumed to be valid. The contesting candidate or the defeated candidate may challenge the validity of votes counted, or the validity of acceptance or rejection of nomination papers, that is a matter of proof. But the enquiry would commence in every case with prima facie presumption in favour of the validity of the acceptance or rejection of nomination payers and of the validity o: the voting papers which have been counted. It is necessary to bear in mind this aspect of the matter in dealing with the question about the scope and nature of the enquiry under section 68. The election petition cannot be thrown on this ground. The election petitioner can produce evidence to prove that the respondent No.1 (returned candidate) was, on the nomination day, disqualified from being elected as a member provided the petition complies with the provisions of section 55 of the Act. The objection about the qualification can be raised before the Returning Officer as well as in an election petition. Failure to take objection before the Returning Officer or overruling of the objection does not debar a petitioner from raising such plea in the election petition.

There can be no doubt that in an election petition the Election Tribunal is competent to enquire if the returned candidate possesses the qualifications as laid down in the Constitution and the Houses o Parliament and Provincial Assemblies (Elections) Order, 1977 or not.

It follows, therefore, that the objection was raised before the Returning Officer or not or rejection of the objection, so as to exclude the jurisdiction of the Election Tribunal to enquire into disqualification and, therefore, it further follows that when the challenge is on the ground that the returned candidate was not qualified on account o his age, it is the duty of the Tribunal to adjudicate upon the issue notwithstanding the order of rejection of objection.

In the result, the election petitions are, therefore, allowed. The election of the respondent No.1 to the Sind Provincial Assembly is set aside and is declared void. The parties will bear their own costs.

The Birth Register of Municipal Committee produced as Ext.11/1 be sealed today by the Assistant Registrar of this Tribunal, so that in case of any appeal before the Supreme Court against this judgment and, in case of requirement of the same by the Hon'ble Supreme Court. It is sent to the Hon'ble Supreme Court in sealed cover.

A.A. /13/E Petitions allowed.

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