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Petitioner: H AJI MU H A MMA D VS Respondent: ALI BAKHSH SHAH and others
Court Name: Election Tribunal Judge(s): Nasir Aslam Zahid Title: H AJI MU H A MMA D vs ALI BAKHSH SHAH and others Case No.: Election Petition No. 43 of 1985 Date of Judgment:1986-04-10 Reported As: 1987 CLC 841 Result: Order accordingly
JUDGMENT
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
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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). P.W.3 Mian Mahmood Ali son of Mian Barkat Ali, Assistant Director Registration, Hyderabad (Exh.7). (iv) P.W. 4 Syed Nasim All son of late Syed Yahya Ali, Assistant Director Registration Badin Exh.8). Respondent examined the following witnesses:- (i) R.W. 1 Muhammad Yousuf son of Muhammad Khan, Primary Teacher, Syed Haji Maqbool Shah School, Tando Bago (Exh.9) (ii) R.W. 2 Muhammad Khan son of Muhammad Yousuf, Taluka Headmaster, Government Primary School Tando Bago (Exh.10). ' R.W. 3 Dr. Matin Ahmad son of late Bashir Ahmad Khan, Professor, Radiology Department, Dow Medical College and Civil Hospital, Karachi (Exh.11). (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).
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' 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 A principle of law in this respect has been laid down in the case of Qaisar Khatoon v. Abdul Khaliq PLD 1971 SC 334 as follows:- "In any event, the question of 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 AIR 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 PLD 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 PLD 1986 Kar. 179 where reliance was placed on the following judgments:- ' Serajul Islam Khan v. Ahsan Ali Mondal PLD 1969 SC 5; Riaz Mahmood Khan Mazari v. Mureed Hussain 1980 SCM R 548; ' Muhammad Tufail v. Muhammad Saleem PLD Kar. 104; ' Abdul Satar v. Muhammad Jameel 1984 CLC 2296; and Haji Abdul Rehman v. Ghulam Hassan 1984 CLC 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.
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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. I 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.
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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.Lt 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
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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 manoeuvred 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
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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 X- 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 assessm ent, 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 unerupted 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 notings 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 hereinbelow:- Q: It is possible that…
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