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(a) Constitution oaf Pakistan (1973)‑‑

‑‑Arts. 62(b) & 113‑‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 11(1)(b)‑‑Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 68(1)(b)‑‑Qanun‑e‑Shahadat order (10 of 1984), Arts. 117 to 119‑‑Provincial election‑‑Disqualification of candidate‑‑Burden of proof‑‑Burden to prove disqualification of returned candidate on ground of his age would be on petitioner‑‑Evidence produced in support of and against such disqualification‑‑Question of burden of proof, held, stood relegated to background and had lost importance.‑‑[Burden of proof].

Qaisar Khatoon v. Abdul Khaliq P L D 1971 S C 334 and P L D 1948 P C 171 ref.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 62(b) & 113‑‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 11(1)(b)‑‑Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 68 (1) (b)‑‑Qualifying age of candidate‑‑Investigation of‑‑Reliance upon age of candidate entered in electoral rolls‑‑Insertion of name of person in electoral rolls no doubt was final in so far as his right to vote was concerned, but was not so as regard his age‑‑Where question was raised before Election Tribunal about qualifying age of candidate for an elected office, Election Tribunal, held, could go behind entry as to age of candidate given in electoral rolls‑‑No reliance could be placed on entry in electoral rolls as to age of candidate in circumstances.

Serajul Islam Khan v. Ahsan Ali Mondal P L D 1969 S C 5; Riaz Mahmood Khan Mazari v. Mureed Hussain 1980 S C M R 548; Muhammad Tufail v. Muhammad Saleem P L D 1967 Kar. 104; Abdul Satar v. Muhammad Jameel 1984 C L C 2296 and Haji Abdul Rahman v. Ghulam Hassan 1984 C L C 2296 ref.

(c) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 62(b) & 113‑‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 11(1)(b)‑‑Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 68(1)(b)‑‑Provincial election‑ Qualifying age of candidate‑‑Proof‑‑Comprehensive evidence brought on record undoubtedly proved that returned candidate had not attained prescribed age of 25 years on last date for filing nomination papers‑‑Such returned candidate being not qualified to contest election, Election Tribunal, held, rightly declared election of returned candidate to be void on basis of evidence on record.

(d) Constitution of Pakistan (1973)‑‑

‑‑‑Arts. 62(b) & 113‑‑Houses of Parliament and Provincial Assemblies (Elections) Order (5 of 1977), Art. 11 (1) (b)‑‑Representation of the Peoples Act (LXXXV of 1976), Ss. 52 & 68(1) (b)‑‑Election of returned candidate declared void‑‑Prayer of rival candidate for declaring him as elected on ground that he had been polled next highest number of votes‑‑No evidence having been adduced by petitioner/ rival candidate that lack of qualification of respondent /returned candidate whose election was declared void on ground of less age was notorious or well‑known to electors in constituency‑‑Doctrine of "thrown away votes" not applicable to facts of case‑‑Held, although election of returned candidate had been declared void, yet petitioner even if had been polled next highest number of votes, could not be declared elected particularly when no argument was addressed by counsel of petitioner in support of prayer of petitioner.

Abdul Qadir Halepota for Petitioner. Imam Ali Kazi for Respondents. Dates of hearing: 9th and 10th April, 1986.

JUDGMENT

Petitioner Haji Muhammad son of Haji Ahmad has challenged the election of respondent No.2, Ali Bakhsh Shah son of Abdul Rasool Shah (hereinafter referred to as "the respondent") to the Sind Provincial Assembly from constituency P.S 51 Badin III. Elections to the Provincial Assembly were held on 28th 'February, 1986. The only point involved in this petition is the challenge about the qualifying age of the respondent. Following issues were settled on 12th September, 1985:‑

(1) Whether respondent No.2 was not qualified to be elected as a member of the Provincial Assembly as he had not attained the age of 25 years as laid down under Article 11 (1)(b) of the Houses of Parliament and Provincial Assemblies (Elections) Order 1977 on 22nd January, 1985, which was the last date of filing of nomination papers for Provincial Assembly.

(2) Relief.

Article 62(b) read with Article 113 of the Constitution and section 11(1)(b) of the Houses of Parliament and Provincial Assemblies (Elections) Order 1977 provide that a person shall not be qualified to be elected as member of a Provincial Assembly unless he is not less than 25 years of age, and section 68(1)(b) of the Representation of the Peoples Act, 1976,provides that the Election Tribunal shall declare the election of the returned candidate to be void if it is satisfied that the returned candidate was not on the nomination day, qualified for or was disqualified from, being elected as a member. The relevant provisions of the Constitution and the Election Laws, therefore, require that the candidate for election to the Provincial Assembly should not be less than 25 years of age on the nomination day. In the case of Provincial Assembly elections, 22nd January, 1985 was the last date for filing nomination papers, and, as such, for being qualified to contest elections to the Sind Provincial Assembly, respondent was required to be not less than 25 years of age on 22nd January, 1985. The respondent. therefore, should have been born on or before 22nd January 1960 so as to qualify for contesting the Fabruary, 1985 elections.

2. In the memo. of this Election Petition it was averred that the age of respondent is given as 22 years in the election rolls published in January, 1985: that his age in General Register of Government High School Tando Bago, where he was a student, is given as 31st August, 1963 and in the Primary School Register as Ist July, 1961; that in the first National Identity Card issued to the respondent on his own application by the Assistant Director Registration Hyderabad, the date of his birth is shown as 23rd March, 1963; that later on to create false evidence about his age being more, he obtained a second identity card from District Badin which showed his age as 25 years; and that respondent's age was below 25 years on 22nd January, 1985, the date for filing nomination papers.

3. In his written statement, it was averred by the respondent that the electoral roll referred in the memo. of petition was in fact prepared in 1981: that the respondent was born on Ist July, 1959 and correct date of his birth was mentioned in the School leaving certificate of Primary School Sayed Haji Maqbool Shah (filed as Annexure 'R‑1; to the written statement and then introduced in evidence as Exh. 9/1); and that intentionally incorrect age was shown on admission to the High School as he had left studies for some years "to cover up the loss and ultimately gain the advantage for the purpose of Government job"; that school leaving certificate Annexure 'D' filed with the petition, showing his date of birth as Ist July, 1961 was forged document; that particulars in the first application made by the respondent for issuance of National Identity Card in Hyderabad were not filed in by him and his date of birth given in that application (Exh.7/1) "appears to have been given in haste"; allegation about fabrication of false evidence was denied; that the correct age of 25 years was given in the application made by the respondent for another National Identity Card to the Registration office, Badin (Exh.8/1); that a certificate of age, dated 14th August, 1985 has been issued by the Civil Surgeon, Karachi which gives respondent's age as 26 years; and that the petition was liable to be dismissed.

4. Evidence was adduced before the Tribunal by both the parties.

The petitioner examined the following witnesses:‑‑

(i) P.W.1 Nathu Lal son of Mangal Das, Teacher in Tando Bago High School (Exh.5).

(ii) P. W, 2 Mirza Ameer Haider Baig son of Mirza Muhammad Nawaz Baig District Election Officer Badin (Exh.6).

(iii) P. W.3 Mian Mahmood Ali son of Mian Barkat Ali, Assistant Director Registration, HycterahacI (Exh.7).

(iv) P.W. 4 Syed Nasim Ali son of late Syed Yahya Ali, Assistant Director Registration Badin Exh.8).

Respondent examinPCi the following witnesses:‑

(i) R.W. 1 Muhammad Yousuf son of Muhammad Khan, Primary Teacher. Syed Haji Maqbcxol Shah School, Tando Bago (Exh.9)

(ii) R.W. 2 Muhammad Khan .son of Muhammad Yousuf, Taluka Headmaster, Government Pr;rn;,ry School Tando Bago (Exh.10).

(iii) R. W. 3 Dr. Matin Ahmau son of late Bashir Ahmad Khan, Professor, Radiology Department, Dow Medical College and Civil Hn,;pital, Karachi (Exh.ll).

(iv) R.W. 4 Najmul Haq Malik son of Mujibul Haq Malik, Assistant Civil Surgeon and Deputy Medical Superintendent, Services Hospital, Karachi (Exh.12).

(v) R.W. 5 Khaliq Dino Shah son of Haji Abdullah Shah, a Zamindar of Badin and relation of respondent (Exh.13).

(vi) R.W. 6 Ghulam Mustafa Shah son of Haji Maqbool Shah, paternal uncle of respondent (Exh.14).

(vii) R.W. 7 Haji Ibrahim son of Haji Chutto, Pesh Imam of the only mosque in the village of the respondent (Exh.15).

(viii) R.W. 8 respondent Ali Bux Shah (Exh.16).

I have gone through the pleadings and the evidence on record and have also heard the arguments of Mr. A.Q. Halepota, learned counsel for the petitioner and Mr. Imam Ali G. Kazi, learned counsel for the respondent.

5. Evidence on record may be categorised as follows:‑

(a) Evidence of entry as to age of respondent in the electoral rolls.

(b) Records of directorates of Registration of Hyderabad and Badin Districts relating to issuance of National Identity Cards to the respondent and his family members.

(c) Records of Primary and High Schools of Tando Bago in which the respondent had studied.

(d) Medical Evidence of two doctors.

(e) Oral evidence of relations and acquaintances of the respondent.

(f) Oral evidence of the respondent himself.

6. The burden of proving his case was on the petitioner but as evidence has been led by both parties, the question of burden of proof stands relegated to the background and has lost importance. The principle of law in this respect has been laid down in the case of Qaisar Khatoon v. Abdul Khaliq P L D 1971 SC 334 as follows:,

"In any event, the question oil burden of proof has lost its importance now after all the relevant evidence has been adduced and placed on record (vide Manaka v. Madha Rao A I R 1950 BC 25. The question of burden of proof becomes material only where the Court finds the evidence so evenly balanced that it can come to no definite conclusion (vide P L D 1948 P C 171. In such an event the rule is that the party on whom the onus lay must fail. This, however, is not the case here, for, the evidence is, by no means, evenly balanced."

I will revert to the question of burden of proof required after assessing evidence on record.

7. (a) Entry as to age of respondent in the electoral rolls given as 22 years is taken up first. Petitioner's case apparently was that this entry was made in 1985, whereas in para. 5 of the written statement respondent's case is that the electoral roll referred to in para 8 of the memo of the petition was in fact prepared in 1981‑‑Neither party turned out to be correct. Evidence of P.W.2 Mirza Ameer Haider Baig District Election Officer, Badin (Exh.6) is to the effect that the electoral rolls were prepared in 1979. However, no reliance is being placed on the entry about the age of the respondent in the electoral rolls for the following reasons:‑

(i) It is now a well‑established' rule that insertion of the name of a person in the electoral rolls is final in so far as his right to vote is concerned but not as regards his age and if a question is raised before an elected Tribunal about the qualifying age of a candidate for an elected office, the Tribunal can go behind the entry as to age of the candidate given in the electoral roll In support of such principle, reference can be made to a recent decision of a Division Bench of this Court in the case of Heesab; v Election Authority Sind P L D 1986 Kar. 179 where reliance was placed on the following judgments:‑

Serajul Islam Khan v. Ahsan Ali Mondal P L D 1969 SC 5; Riaz Mahmood Khan Mazari v. Mureed Hussain 1980 SCMR 548;

Muhammad Tufail v. Muhammad Saleem P L D Kar. 104;

Abdul Satar v. Muhammad Jameel 1984 C L C 2296; and Haji Abdul Rehman v. Ghulam Hassan 1984 C L C 2296.

(ii) There is other evidence, documentary and oral, available on record, and, in my view, on such other evidence a definite conclusion can be reached as to whether the respondent was over or below age of 25 years on the relevant date.

(iii) Even the respondent was not sure as to when the entries about himself were made in electoral rolls.

No reliance is, therefore, being placed on the entry as to age of the respondent in the electoral rolls.

7. (b) Evidence brought on record relating to the issuance of National Identity Cards to the respondent at his request is taken up next. Application made in August, 1982 by the respondent to the Hyderabad Registration Office (Exh . 7/ 1) shows his date of birth as 23rd March, 1963. Respondent has admitted that he had made this application but his explanation in his written statement was that the particulars required to be filled up in the form were not filled up by him and the date of birth (23rd March, 1963) in the form is not correct and appears to have been filled up in haste. The signature on the form (Exhs. 7 and 10, were admitted by the respondent. In his evidence (Exh.16) he gave a different but improved version. He has deposed as follows:‑

"After I was issued the National Identity Card then I came to know that my date of birth is given as 23rd March, 1963. 1 had signed the forms for issuance of National Identity Card blank and then I had given the forms to my friend Irshad, who later on filled the various columns. He had written this date of birth in my application. Irshad has left for London two years ago. He has settled there."

Neither of the two versions one in the written statement and the other in respondent's cross‑examination appears to be convincing. The filling of the application for issuance of the identity card and his signatures are admitted. In his written statement, the explanation is that entry about his age was filled up in haste. It was not his case that any other particular and there are 19 columns which were filled up in Exh. 7/1 was wrongly or incorrectly filled up. He has not stated in the written statement that he had signed the form blank or that he came to know later on that incorrect date had been filled up. Then his different and apparently improved explanation in his cross‑examination has been reproduced earlier. Neither of the two explanations appears to be correct. What seems to be correct and also natural is that the particulars including his date of birth was filled up in Exh.7/1 on the instructions of the respondent.

Exh. 7/2 is an application made to the Hyderabad Registration Office in May, 1984 by the respondent for issuance of a duplicate identity card on the ground that he had lost his identity card. On this application he gave the number of his last identity card as 450‑63‑215909. The middle number is "63." which, apparently is the year of birth of the holder of the identity card.

Exh. 7/3 is the application of Mst. Zarina, mother of the respondent, for issuance of national identity card and this was made in August, 1982 to the Hyderabad Registration Office. Her date of birth is given as 26th April, 1948.

Exh. 7/5 is form " " filed by Syed Abdul Rasool Shah, father of the respondent, with the Hyderabad Registration Office in August, 1982 giving details of all his family members. Here also the date of birth of the respondent is given as 23rd March, 1963 and that of his mother Mst. Zarina as 1948. It is not alleged that these particulars are wrong or given in haste.

The forms filed by the respondent, his mother Mst. Zarina and his father Syed Abdul Rasul Shah in August, 1982 in Hyderabad Registration Office, therefore, show his year of birth as 1963 and that of his mother as 1948. These entries about ages further show that at time the respondent was born, his mother's age was 15 years. The year of birth of his mother, Mst. Zarina, as 1948 in the registration records has not been averred by the respondent to be incorrect.

In December, 1984, according to the records of the Badin Registration Office, respondent and his mother applied to the Badin office for cancellation of their previous identity cards and issuance of fresh identity cards. Exh. 8/2 is respondent's application for cancellation of his previous identity card No. 450‑63‑215909 (issued from Hyderabad Office) and issuance of new identity card. Number of his card had shown that in his previous identity card his year of birth was 1963. Exh. 8/1 is the form " " filled up giving respondent's particulars and against the column of date of birth, 25 years is written. Exh. 8/3 is the application of Mst. Zarina also made in December, 1984 for cancellation of her previous identity card and for issuance of a new identity card. Exh. 8/4 is Mst. Zarina's form " " filed with Badin Office in December, 1984 but here there is no change in her year of birth which remains 1948.

According to the evidence of P.W, 4 Syed Nasim Ali, Assistant Director Registration, Badin, the previous identity card of Mst. Zarina issued from Hyderabad was available in the record of Badin Office but previous identity card of respondent was not available. Date of birth has been changed in the two identity cards issued to the respondent but not in the card, issued to Mst Zarina. According to the first identity card (and also its duplicate) issued from Hyderabad, the year of birth of respondent is 1963, whereas according to second identity card issued from Badin it is 1959. A question asked by the Tribunal and its answer by Nasim Ali, Assistant Director, Registration, Badin are reproduced here;‑

"Q. If an applicant who desires his previous national identity card to be cancelled, surrenders such identity card and in such indentity card the age which is mentioned or the date of birth, which is record, is different from the age or date of birth, which is then shown in the fresh application for issuance of a new national identity card will your department issue a fresh national identity card with the different age or would you require some other material or documents before any such new identity card is issued with different age

A. We will not issue a new identity card. If at all we issue a new identity card with a different age we would ask the applicant to furnish documentary material to show that his correct age is what has been mentioned in the fresh application."

No such material was available on the record. It is apparent that the second national identity card was improperly got issued from the Badin Office showing respondent's year of birth as 1959.

There is another and very substantial reason why the year of birth given in the second national identity card to the respondent as 1959 does not appear to be correct. As observed earlier the year of birth of Mst. Zarina is given as 1948 in both her identity cards and there is no averment that this year of birth was incorrectly or wrongly given. If this is so and respondent's year of birth is 1959 (and not 1963), Mst. Zarina gave birth to respondent at the age of 11 years. This would have been medical history.

The correct records of Registration Department, therefore, show the year of birth of respondent as 1963 which makes him less than 25 years of age on 22nd January, 1985, the last day of filing nomination papers.

7. (c) Coming now to the evidence relating to entries in school records about the age of the respondent, it has been noticed that there are three witnesses, apart from the respondent himself, who have given evidence in this regard and they are;‑

(i) P.W.1 Nathu Mal (Exh.5), Teacher in Government High School Tando Bago.

(ii) R.W. 1 Muhammad Yousuf (Exh. 9) Primary Teacher, Syed Haji Maqbool Shah School, Tando Bago.

(iii) R.W. 2 Muhammad Khan (Exh. 10) Taluka Headmaster, Government Primary School, Tando Bago.

According to P.W. 1 Nathu Mal, General Register of Government High School Tando Bago Exh. 5/3 shows that the respondent was admitted in class VI in this school on 15‑12‑1976 and he left the school on 29‑8‑1978 when he was in class VIII and the date of his birth in the School Register is given as 31‑8‑1963.It was deposed that this entry was made on the basis of the Haji Maqbool Shah Primary School leaving certificate (Exh. 5/1) of the respondent which also gave the date of birth of respondent as 31‑8‑1963. Entries in the General Register of the High School have been proved. In fact the entries in such Register were not challenged. According to the respondent, as per his written statement, on account of loss of about 6 years in his early educational career "incorrect age was shown on admission to the High School to cover up the loss and ultimately gain the advantage for the purpose of Government job." It may be observed here that Exh. 5/1, the Primary School Certificate has not been proved as it was signed by one Abdullah. Headmaster of the Primary School; who was not examined and P.W 1 Nathul Lal stated in his evidence that he was not conversant with the handwriting of Abdullah and he could not say whether Exh. 5/1 was signed by Abdullah, the Headmaster.

Respondent's case in his written statement was that the‑‑ "True School Leaving certificate is annexed hereto and marked as an Annexure "R .1" (Exh . 9 / 1) correct facts are stated therein. On the basis of same the answering respondent was over 25 years of age at the time of election and was duly qualified to contest the same".

Exh.9/1, on which primary school leaving certificate reliance was placed upon by the respondent, shows his date as 1‑7‑1959. R.W. 1 Muhammad Yusuf (Exh. 9) brought the General Register of Syed Haji Maqbool Shah School, Taluka Tando Bago and produced it as Exh. 9/2. The certificate Exh. 9/1 is based on the entries made in Exh. 9/2, the School's General Register. According to R.W. 1 Muhammad Yusuf, the date of birth of the respondent is given against serial No. 82 of this General Register of the School. A part of the cross‑examination of this witness is reproduced here:‑

"It is correct that the serial numbers in the general register are written in two inks i.e. blue and red. The numbers in blue ink are from 1 to 99;

Q: It is put to you that pages 25 and 26 which are on two sides of the same leaf were in fact pages 100 and 101 of the register and this page was torn out from its original position and then fresh entries were made and this was then placed in between pages marked in red as Nos. 24 and 27. It is further put to you that while doing so the original numbers in blue ink as 100 and 101 have been renumbered as pages 30 and 31, which is apparent

'A: I have not done anything wrong. I am not aware if any interpolation has been made in the register. I see the last page of this register. I made the endorsement on the last page of this register in red ink when I received summons from this Tribunal. It was about 20 or 25 days ago."

Even a cursory glance at the School Register (Exh. 9/2) shows that interpolation has been done as suggested in the above question of the learned counsel for the petitioner to School Teacher, who had produced the register. Such interpolation appears to have been done at the instance or on behalf of the respondent.

The register had been in possession of the respondent according to this witness. P.W. 1 Muhammad Yusuf had further stated in his cross‑examination as follows:‑

"Prior to 20 or 25 days from today I did not have this register which I have brought to the Tribunal today, which is in my possession. I had never seen this register prior to that time.

Ali Bux Shah (the respondent) had brought the general register to me about 20/25 days ago and then I was asked to appear before the Taluka Headmaster (R.W.2) and he asked me to sign the certificate, which I have produced as Exh. 9/1."

It seems that the relevant page of the School general register on which the entry about the age of the respondent appeared was removed and replaced by a blank page taken from the end of the register and then fresh entries were made on this page. Exh. 9/1, the school leaving certificate, being based on such maneuvered entries in the school register (Exh.9/2), cannot be accepted. Further the presumption would be that had such interpolation not been done, the entries in the Primary School Register would have gone against the respondent and would have shown that the respondent was under 25 years of age on the nomination day.

7(d) Medical evidence has been adduced by the respondent and according to Mr. Imam Ali G. Kazi, learned counsel for the respondent, the medical evidence establishes beyond any doubt that the respondent was over 25 years of age on 22‑1‑1985, the last date for filing nomination papers. The medical evidence comprises the testimony of two doctors namely R.W. 3 Dr. Matin Ahmad (Exh. 11) and R.W. 4 Dr. Najmul Haq Malik (Exh. 12).

Dr. Matin Ahmad is the Professor of Radiology, Dow Medical College and Civil Hospital. He had taken four X‑Rays of the respondent and gave a report, dated 15‑1‑1986, in which he stated that in his opinion as per bony ossification and bone appearance, the age of the respondent is over 25 years. In his examination‑in‑chief he stated that he had been in the field of Radiology since 1958 and that at the time of giving evidence he was the Head of the Department of Radiology, Civil Hospital and also the Professor of Radiology in Dow Medical College, Karachi. He had taken four Y‑Rays of the respondent for the purposes of the ossification test to determine the age of the respondent. He produced the four X‑Rays as Exhs. 11/1 to 11/4 and his report, dated 15‑1‑1986 as Exh. 11/5. He stated in his examination‑in‑chief that according to his assessment, on the basis of the X‑Rays, in his opinion, the age of the respondent was over 25 years. He further stated that according to his assessment, the age of the respondent should be between 25 to 30 years. In his cross‑examination he stated that one X‑Ray (Exh. 11/1) was of the mandible, another X‑Ray (Exh. 11/2) was of the clavicles and the other two X‑Rays (Exhs. 11/3 and 11/4) were of the sternum.

From the report (Exh. 11/5), dated 15‑1‑1986 of Dr. Matin Ahmad it appeared that according to Dr. Matin Ahmad, all the molars of the respondent had erupted as he had stated in the report that "no un-reputed tooth (molar) seen in the mandible". However, in his cross‑examination he stated that he had not counted the teeth of the respondent, as he was required to take the X‑Rays and give his report on the basis of such X‑Rays. He was asked in his cross‑examination that if a person had 28 teeth and not 32 teeth, even in such a case his mandible X‑Ray Exh. 11/1 would be the same and his answer was in the affirmative. It may be observed that it is an admitted position that in the case of the respondent none of his molars have erupted that is he has only 28 teeth. It stands confirmed from the nothings made on Exh. 12/1, the age certificate issued by the Civil Surgeon, Karachi. It may also be mentioned that Dr. Najmul Haq Malik (Exh. 12). Assistant Civil Surgeon and Deputy Medical Superintendent of Services Hospital, Karachi, in his cross‑examination has stated that according to his noting on the age certificate (Exh. 12/1) the person, in respect of whom the said age certificate had been given, had 28 teeth.

In answer to a question whether it was correct that the four last teeth i.e. molar erupt from the age of 17 to 25‑ years, Dr. Matin Ahmad answered as follows:‑

"Normally this is so and these are wisdom teeth."

Another question and answer in the evidence of Dr. Matin Ahmad are reproduced here-in-below:‑

'Q: It is possible that one or two of the wisdom teeth may erupt in the case of a person after the age of 25 years but it is put to you that according to the Medical Science, it is impossible that in the case of a person none of the molar teeth erupts before he reaches the age of 25 years

A: This is incorrect. There are instances where all molars are absent even when the person concerned has reached the age of 25 years."

From the last answer of Dr. Matin Ahmad it appeared that normally at least one molar tooth definitely erupts before a person reaches the age of 25 years but there are exceptions. In the case of the respondent even in January, 1986, he had none of the molars out and normally, therefore, he should be under the age of 25 years, as none of his molars is out but according to the evidence of Dr. Matin Ahmad he was placing the respondent amongst the exceptions. From the cross‑examination of Dr. Matin Ahmad on the basis of the mandible X‑Ray, it could not be said with any certainty that respondent was over 25 years of age in January, 1986 when his mandible X‑Ray was taken.

In so far as X‑Ray of the internal ends of the clavicles of the respondent (Exh. 11/2) taken in January, 1986, the question and answer in the cross‑examination of Dr. Matin Ahmad are reproduced below:‑

Q: Exh. 11/2, which is the clavicles X‑Ray, only shows that the person concerned has reached the age of 25 years. This X‑Ray cannot positively show that the person must be over 25 years of age. Is it correct

A: This is correct."

Mr. A.Q. Halepota, learned counsel for the petitioner had argued that in the question he had, through oversight, referred to the age as 25 years, whereas it should be 21 years. He has referred to Parikh's Textbook of Medical Jurisprudence and Toxicology Third Edition and at page 43 of this book while giving the chronology of ossification data providing principal points in general helpful for the determination of age, it is stated that by 22 years, the inner (secondary) epiphysis of clavicle fuses. According to Mr. A.Q. Halepota, the clavicles X‑Ray (Exh. 11/2), which shows that the inner epiphysis of clavicle had fused only indicates that the person concerned had reached the age of 22 years.

The remaining two X‑Rays are of the sternum (Exhs 11/3 and 11/4) and in answer to a question as to whether the four pieces of the bone, which form the body of sternum fuse between the age of 17 and 25 years, Dr. Matin Ahmad answered in the affirmative but added that in very few cases the fusion takes place at the early age of 17 years and in most of the cases the fusion takes place at the age of around 25 years. In another answer to a question in the cross‑examination, he stated that the fusion of the four pieces of the sternum must take place within the span of 8 years i.e. from 17 to 25 years.

In his evidence, Dr. Matin Ahmad has stated that on the basis of the four X‑rays that, he had taken, the age of the respondent could not be below 25 years. He also stated in his examination‑in‑chief that according to his assessment, the age of the respondent should be between 25 to 30 years. From the answers given in the cross‑examination referred to hereinabove. Dr. Matin Ahmad should not have been so positive in his final assessment that the respondent could not be below the age of 25 years in January, 1986. On the basis of the four X‑rays it could not be stated with certainty that the respondent was over 25 years. On the basis of the answers given in the cross‑examination of Dr. Matin Ahmad, the respondent could be below 25 years also. On the basis of the X‑rays of the mandible, the age of the respondent appears to be less than 25 years in January, 1986, when the X‑rays were taken. On the basis of the two X‑rays of the sternum, his age could be anywhere between 17 to 25 years and on the basis of the clavicles X‑ray his age could be over 22 years.

The other evidence discussed earlier i.e. the record of the High School and the particulars given in the applications for issuance of National Identity Card submitted to the Hyderabad Registration Office, show the age of the respondent to be 23 years in 1986. The year of birth in the aforesaid two records is 1963, which would make the respondent 23 years old in 1986 when his X‑rays were taken and from the four X‑rays also it can be said that the respondent was 23 years of age when the X‑rays were taken. The results of the X‑rays are consistent with the age of the respondent appearing in the High School and Hyderabad Registration Office records. There is another factor, which has been referred to earlier also and that is the year of birth of Mst. Zarina, the mother of the respondent. Her year of birth is given as 1948 not only in the records of the Registration Office at Hyderabad but also at Badin. If the version of the respondent is accepted that he was born in 1959, his mother would only be about 11 years of age at the time the respondent was born. As observed earlier if this were so it would create medical history.

There is also the testimony of R.W.4 Dr. Najmul Haq Malik, Assistant Civil Surgeon and Deputy Medical Superintendent Services Hospital. He had produced the age certificate issued by Dr. Khalid Rashid Ex‑Civil Surgeon, Karachi. Unfortunately Dr. Khalid Rashid, after issuance of the age certificate and before he could be examined before this Tribunal died on 14 December, 1985. This age certificate, dated 24 August, 1985 gives the age of the respondent as 26 years. As Dr. Khalild Rashid could neither be examined nor cross‑examined this age certificate is of no help to the respondent.

7. (a) Reference may now be made to the evidence of relations and acquaintances of the respondent. R.W.5 Khalid Dino Shah (Exh. 13) stated in his affidavit‑in‑evidence that he is closely related to the respondent and that he had taken his wife to the village of the respondent's father at time of the expected delivery of his first child and they had stayed there for 2 to 3 weeks and that respondent was born on 1st July, 1959. In his cross‑examination he stated that he remembered the date of birth of the respondent from his memory. However, he could not give the date of birth of any other child of late Syed Abdur Rasool Shah (father of the respondent). He stated that he has six children and they were all studying in the schools but he did not remember the date of birth of any one of his children. He also stated that he has eight brothers and they have got about 50 children but he had not remembered the date of birth of any one of the children of his brothers. In view of his answers in the cross‑examination, no reliance can be placed on the statement of this witness that the respondent was born in lst July, 1959.

R.W.6, Ghulam Mustafa Shah is the paternal‑uncle of respondent. He also gave the date of birth of the respondent as 1st July, 1959. In his cross‑examination he stated that he did not remember the date of birth of the other nephew but he only remembered the date of birth of the respondent. He also did not know the correct date of birth of Raza Shah, his sister's son, although Raza Shah, according to the witness, was the first male child of this witness's sister. The evidence of this witness has also established with any certainty that the respondent was born in 1959.

R.W.7, Haji Ibrahim (Exh. 15) is the Pesh Imam of the only mosque in the village of the respondent. He stated in his affidavit‑in -evidence that normally he is called to give "Azan" in the ear of every child who is born in the village and then stated that he distinctly remembers that after about 8 to 9 months of Martial law of Ayub Khan at Fajar time he was called by late Abdul Rasool Shah who asked the witness to give 'Azan' to his son Ali Bakhsh, the respondent. In his cross‑examination he stated that he did not remember the date of birth of any other child in the village of respondent. He stated that he has three sons and one daughter and that his sons were admitted in school but he did not remember their dates of birth and that his eldest child was about 30 to 32 years of age. He could not give the approximate of age his younger son. He stated that his eldest son was born prior to imposition of Martial Law by Ayub Khan but he could not say how many years prior to the imposition of Martial Law by Ayub Khan his eldest son was born. According to his testimony he used to get his salary as Pesh Imam from Abdur Rasool Shah, deceased father of the respondent, and after his death, Ghulam Mustafa Shah, R.W.6, was paying his salary. He further stated that he could not give the name of any child born in village of the respondent, whose birth had taken place within 8 or 9 months prior to or after the imposition of Martial Law by Ayub Khan. The evidence of this witness does not in spire confidence.

7. (f) Lastly reference may be made to the evidence of the respondent himself (Exh.16). His written statement, which was verified on solemn affirmation, was treated as his examination‑in‑chief. In his cross examination, he admitted that his age in the records of the High School, Tando Bago, is based on the School Leaving Certificate obtained from his Primary School. Referring to Exh.9/2 the Primary School Register, he stated in his evidence, which was recorded before this Tribunal on 31st March, 1986, that he had not seen this register previously and he had only obtained a certificate which had been produced as Exh.9/1. This answer of the respondent is in direct conflict with evidence given by his witness R.W.1 Muhammad Yousuf (Exh.9) Primary Teacher in Syed Haji Maqbool Shah School. Evidence of R.W.1 has been referred to earlier. In his cross‑examination he stated that the respondent Ali Bakhsh had brought the general Register with him about 20 or 25 days prior to the date when he appeared before this Tribunal to give evidence on 10th December, 1985. Respondent also admitted that he had supplied photostat copy of the relevant certificate issued by the Primary School (Exh.9/1) alongwith his application to the Civil Surgeon made on 22nd August, 1985 for issuance of age certificate. But later on he stated that he had not attached the copy of the certificate (Exh.9/1) with his application addressed to the Civil Surgeon but later on the Civil Surgeon had required such certificate and therefore, the same was filed. The statement of the respondent does not establish that he was born in 1959.

8. On the totality of the evidence produced before this Tribunal it l stands that the respondent was not born in 1959 but was born much later and the evidence on record more or less clearly established that he was born in 1963. The respondent had not attained the age of 25 years on 22nd January, 1985, the last date for filing nomination papers for contesting the Provincial Assembly Elections in Sind. He was not qualified to contest the said elections. The election of the respondent is, therefore, liable to be declared void.

9. In the memo. of petition filed by Haji Muhammad son of Hajil Ahmad, the first prayer is for declaration that the election of the respondent be declared void and this prayer is being granted. Thel second prayer is for declaring the petitioner as elected, having polled the next highest number of votes. Although there is a prayer for the petitioner to be declared elected but no evidence had been adduced by the petitioner that the lack of qualification of the respondent i.e. he was below 25 years of age on the nomination day, was notorious or well known to the electors in the constituency. No argument also was' addressed by Mr. A . 0. Halepota, learned counsel for the petitioner, in support of the prayer for election of the petitioner. The doctrine of thrown away votes does not apply to the facts of this case. As such the petitioner, who polled the next highest number of votes, cannot be declared elected.

10. As a result, the election of the respondent Ali Bakhsh Shah son of Abdur Rasool Shah to the Provincial Assembly of Sind, Constituency NO.PS‑51, Badin‑III is declared void. The prayer of petitioner Haji Muhammad son of Haji Ahmad to be declared elected is not granted.

The parties will bear their cwn costs.

Election Petition No.43 of 1985 stands disposed of

The Primary School Register produced as Exh. 9/2 be re‑sealed again today by the Assistant Registrar of this Tribunal, so that in case any appeal is filed before the Supreme Court against this judgment and this document required by the Supreme Court, it is sent to the Supreme Court in the sealed cover.

H. B.T.5046/E Order accordingly.

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