MOHAMMAD USMAN Versus LAL MOHAMMAD

TUFAIL ALI A. RAHMAN, C. J .‑‑These two appeals arise out of a decision of the Election Tribunal, Sind & Baluchistan. Karachi, upon an election petition which itself arose from the election to PS‑Hyderabad‑III Constituency, .of the Provincial Assembly of Sind. There were a number of candidates for this election and Muhammad Usman Kennedy who secured 13503 votes was declared successful. Lai Muhammad obtained the next highest number., of votes,, that is to say, 8163 votes, and he filed a petition challenging the: election of Muhammad Usman Kennedy upon the ground that when he submitted his nomination paper he had not attained the age of 25 years. and was, therefore, not qualified to be a candidate. Lai Muhammad further claimed that he be declared as having been duly elected. The Tribunal accepted the petition to the extent that it held that Muhammad Usman Kennedy was not qualified and that, therefore, his election was void but ,refused the further prayer that Lai Muhammad be declared elected and; ;therefore, set aide the entire election. Miscellaneous Appeal 20 of 1974 is .the appeal of Muhammad Usman Kennedy while Miscellaneous Appeal 30 of 1974 is one tiled by Lal Muhammad which naturally does not seek to have the entire decision set aside but only modified to the extent that he. himself be declared elected. In view of the fact that these two persons who are the main contesting parties in this case are appellant in one matter and. the respondent in the other matter, I propose to refer to them either by name or as the' successful candidate and the petitioner respectively. One of the other respondents, however, did also appear to contest this matter, namely, Jamil Ahmed and he naturally sought to have the decision upheld since he, is interested in having a fresh election and cannot possibly claim the seat himself.

2. Before the Tribunal the principal question that arose for decision was the age of the successful candidate, the only other question, that is,, whether the petitioner was entitled to the seat obviously arising only if the first was decided in his favour. Before us the first question has largely resolved. itself into controversy as to the. admissibility and effect of two. documents that were produced before the Tribunal and one more which wt; admitted during the course of the appeal, subject to admissibility. Before I enter into a discussion of the various contentions advanced before us is would be convenient briefly to state what was the evidence produced by the parties upon the point including the three documents to which I have referred. For the petitioner reliance was placed upon various forms submitted by the successful candidate for admission to the Bachelor of Commerce Course and the Master of Commerce Course as also his admission to the Matriculation examination. There tyere no school certificates inasmuch as the successful candidate had not attended any school but had appeared for the Matriculation examination as a private candidate. All these documents admittedly show the 1 5th June 1947, as the date of his birth which would, again admittedly make him less than 25 years old at the time when his nomination .form was filled up. Admittedly also the age of the successful candidate has been corrected in the Electoral Rolls to show 25 years the original entry being of a lower age. The Tribunal was inclined to hold that this is a fabrication but did not ground its decision on such a finding. On behalf of Muhammad Usman himself seven witnesses were examined and, of these, five, who include his father and his maternal grand father and others now resident to Hyderabad but belonging originally to Ajmer in India where he was born, gave evidence of his age on the basis of personal knowledge. The sixth witness was Dr. Partab Rai Lalwani an X‑Ray specialist who examined him by means of X‑Ray tests. The last, Abdul Jalil, is a person who claims to have brought from India a certified copy of an extract from the records of Ajmer Municipality showing that Muhammad Usman was born on the 18th December 1944, according to which of course he would be duly qualified to stand for the election. The first of the documents produced before the Tribunal is this very certified copy which was Exh. 49 while the other document, which it was first claimed was the photostat copy of Exh. 49, notorially attested by a Notary Public is Exh. 49‑A. On a physical examination, however, it was clear that it was not a photographic copy of Exh. 49, but that there must have been as intermediate document which itself must have been a photographic copy of Exh. 49, and which was then notorially attested. Exh. 49‑A is a photographic copy of this notorially attested photostat copy of Exh.

49. It is this intermediate document which was produced and admitted before us.

3. Exh.49 was brought on record through the evidence of Abdul Jalil who said that he visited India from the 29th of August 1970 to the 30th October 1970, and while he was at Ajmer he obtained from one Abdul Latif this document as he had been requested to do, that is to say, by Usman Kennedy or his relations. This Abdul Latif has not been examined in evidence, and presumably is a resident of India and, in view of the objections that have been raised to the admissibility of Exh. 49, it might also be noted that during the period of this `witness's visit there was admittedly a High Commissioner for Pakistan in India. Exh. 49 is a typed document the heading of which is "Ajmer Municipality. Birth Register No. 195. Public Health Department". There follows the entry itself which relates to the birth of a Muhammad Usman whose father's name is given as Muhammad Ishaque and the name of the "Dal" is stated to be Biamillab. Muhammad Ishaque is further particularised by his religion being stated to be Islam and his occupation that of a hotel keeper. No caste is given although there is apparently a column for that purpose. There is a rubber stamp providing for various dates like those of the application, the order and the delivery against which in handwriting these are mentioned as also the name of A. Latif Khan as being that of the applicant. It bears what .purports to be the seal of the Municipal Council, Ajmer and yet another rubber stamp. which is in . these words "True copy, Municipal Council, Ajmer". This rubber stamp has the manuscript signature which is clearly legible as Ganpat Lal and the date 22‑9‑1970. There is no description of the designation of this Ganpat Lal or anything further. There is, however, an embossed seal bearing in English and Hindi the words the State of Rajasthan' and a symbol. We were quite unable to understand why what purports to be the certified copy of an entry of the record of the Ajmer Municipality should have such a seal and the only guess that Mr. Khalid Ishaque, learned counsel for the successful petitioner could hazard was that perhaps all the official stationery used in Ajmer bears this seal in order that the chances of fraudulent documents be minimised. For my part I am quite unable to see how this could well be so and although I am far from willing to decide the question of the admissibility or genuineness of this document on this one factor alone, I must confess that it has been the cause of some suspicion in my mind. Certainly the document does not bear as is required by section 78 of the Evidence Act the seal of a Notary Public or of a Pakistan Consul or diplomatic agent.

4. The Tribunal having rejected the argument that the Evidence Act did not apply to proceedings before itself, a contention that was not raised before us, went on to bold that since the alleged certified copy did not comply with section 78(6) of the Evidence Act, it was inadmissible. He then went on to hold that in that event secondary evidence could not be led under section 65(e) of the Evidence Act either. The only other argument pressed before him was that, the successful candidate having taken all the steps that he could for the authentication of the document, the failure to have it authenticated in accordance with section 78 should be condoned, the Tribunal rejected upon the short ground that during the relevant period we bad a High Commissioner in India. Before us this last contention was given up and the case was rested on section 65, it being claimed that section 78(6) did not stand in the way of the successful candidate and alternatively under section 82 of the Evidence Act.

5. Now obviously Exh. 49 to be admissible at all must be admissible as secondary evidence; it cannot be primary evidence. Section 65 of the Evidence Act enumerates the documents "of the existence, condition or contents" of which secondary evidence may be given and the only relevant clauses of this section are (e) and (f ) which read thus:

"(e) When the original is a public document within the meaning of section 74;

(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Pakistan to be given in evidence."

In regard to these clauses the same section goes on to provide "in clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible." Plainly then the only kind of secondary evidence which may be led of such a document is a certified copy.

6. That the document would qualify to be a public document is, I think, clear from section 74 which reads thus:‑

"74. Public documents.‑The following documents are public docu ments:‑

(1) documents forming the acts or records of the acts:

(i) of the sovereign authority,

(ii) of official bodies and tribunals. and

(iii) of public officers, legislative, judicial and executive (of any) part of (Pakistan or of the Commonwealth) or of a foreign country;

(2) Public records kept in (Pakistan) of private documents;

(3) documents forming part of the records of judicial proceedings;

(4) documents required to be maintained by a public servant under any law; and

(5) registered documents the execution whereof is not disputed."

7. I have had to state this because it was faintly contended that even though the document may not be admissible under these provisions it might be regarded not as a private document nor as a public document of our country but as a foreign public document. With this contention I find myself wholly unable to agree. As is plain from section 74 the expression "public documents" includes some documents even of foreign countries and section 75 puts under the category of "private documents" all document Its which are not defined as public documents. A half way house, therefore, in which documents which are not public documents under section 74 and yet are not private documents under section 75 but are foreign public documents is not, I think. conceivable or contemplated by the Evidence Act.

8. Now section 65, it is to be noticed, only makes admissible secondary evidence in some cases: it does not prescribe the mode by which secondary evidence may be given though in some cases‑and clauses (e) and (f) are such oases‑a certain mode is stated and all others forbidden. This mode is by means of a certified copy. What a certified copy is stated in section 76 which reads:

"76. Certified copies of Public documents.‑Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies."

A plain reading of this section shows that Exh. 49 is not a certified copy within the meaning of section 76. This section requires that only the public officer having the custody of a public document may give a certified copy find it must then be dated and subscribed by such officer with his name and official title. I have already stated that Exh. 49 although it does bear a signature does not purport to indicate the designation of the person who has put the signature, much less that he was such a public officer as is con templated by section 76.

9. The other mode that is prescribed for the proof of official documents is stated in section 78 which reads thus:

"78. Proof of other official document.‑The following public documents may be proved as follows:

(i) Acts, orders or notifications of (the Central Government) in any of its departments (or of the Crown Representative) or of any (Provincial Government)‑ by the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government (or, as the case may be, of the Crown Representative):

(2) the proceeding of the Legislatures: by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting to be printed (by order of the Government concerned);

(3) Proclamations, orders or regulations issued by Her Majesty or by the Privy Council, or by any department of Her Majesty's Government‑ by copies or extracts contained in the London Gazette, purporting to be printed by the Queen's Printer:

(4) The acts of the Executive or the proceedings of the Legislature of a foreign country,‑by journals published by their authority, or com monly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some (Central Act):

(5) the proceedings of a municipal body in (Pakistan)‑ by a copy of such proceedings, certified by the legal keeper thereof, or by printed book purporting to be published by the authority of such body:

(6) public documents of any other class in a foreign country: by the original or by a copy certified by the legal keeper thereof, with a certificate under the seal of a notary public, or of a (Pakistan) Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of document, according to tile law of the foreign country."

Now clearly this document since it does not fall under clauses (1) to (5) must fall under clause (6). This document not being the original must be "a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public or of a Pakistan Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original". Even if it be held that it does purport to be certified by the legal keeper thereof it clearly does not bear the seal of a Notary Public or of a Pakis Consul or diplomatic .agent and, therefore, does not comply with the section. Indeed to be fair to Mr. Khalid Ishaque he did not even contend `that Exh. 49 complies with section 78. On the contrary his argument was that section 78f6) does not prescribe the only way by means of which a public document originating from a foreign country may be proved but only one of several alternate methods by which it could be proved. Now I find it difficult in the face of the express language of sections 65 and 78 to accept this argument. Assuming for a moment,, however, that it may be proved in some other way we asked Mr. Khalid Ishaque what that other way was in the present case, and his reliance was upon section 77 of the Evidence Act. (This is of course quite apart from the independent argument based on section 82 of the Evidence Act). Section 77 does not really, however,carry the matter any further for it says "such certified copies may be produced .in proof of the contents . . . . ." and clearly the words "such certified copies" refer back to section 76 which 1 have already quoted and the docu ment does not comply with section 76 either.

10. Reliance was then placed upon Exh. 49‑A, it being claimed that ‑since this was notorially attested there was sufficient compliance of section‑78. ‑Now it is to be remembered that Exh. 49‑A was claimed to be a photostat copy ,of Exh. 49 which was then notorially attested. In fact it was not even that: at was a photostat copy of such a photostat copy of the Exh. 49 as had been attested notorially before being rephotographed. In the first place on general principles I should be extremely reluctant to accept as admissible ,the photographic copy of a document which itself is inadmissible. It would ,be remarkable indeed if a document although not admissible itself became admissible only because it was photographed and then attested. Unless. therefore, the law compels me to come to such a conclusion I would hold ;hat Exh. 49‑A is inadmissible on that ground alone. It was claimed, however, that Exh. 49 was being held inadmissible only for the want of an attestation by a Notary Public and that Exh. 49‑A bore such an attestation. ~I do not think the matter is as simple as that. What section 78 requires is the certificate under the seal of a Notary Public that "the copy is duly certified by the officer having the legal custody of the original". In other words from the notorial attestation is being derived the guarantee that the copy D is indeed certified by that officer. The Notary Public in this case even if he had put a stamp upon Exh. 49 itself could not have and did not give such a certificate. In the absence of any certificate the utmost that the attestation amounts to is a certificate that he has compared the photostat copy with the document from which it has been made and that the photostat copy is accurate. This by no means complies with section 78 and I am quite .unable to hold, therefore, that Exh. 49‑A was admissible either.

11. Nor, plainly, is the situation at all improved by the production before us of the intermediate document. In passing, it might. be noted that no sufficient explanation has been given why this intermediate copy was not produced before the Tribunal. Before us it was alleged that it had been produced in the course of a Miscellaneous Appeal filed in this :Court (to which I shall refer for another purpose later) and that when the record of the case was received hack from this Court it was not, therefore, available. I do not understand how this may well be, for that appeal was held to be not maintainable and admittedly this document formed no part of the record of this Court and was produced before us from the party's own custody. The point is of no material importance and I do mot, therefore, propose to discuss it further.

12. For establishing the admissibility of Exh. 49 reliance was then placed on section 82 of the Evidence Act which reads thus:

"Presumption as to document admissible in England without proof of seal or signature.‑‑When any document is produced before any Court. purporting to be a document which, by the law in force for the time being in England and Ireland, would be admissible in. proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, ‑stamp or signature is genuine, and that the person signing it held, at the time when he signed it, the judicial or official character which he claims, and the document shall be admissible for the same purpose for which it. would be admissible in England or Ireland."

Two features of this section might be particularly noticed before going any further. The section refers to "any document" and it might seem, therefore, that if Exh. 49 qualifies under this section the further question whether it is a public document or not does not seem to matter. A closer examination, of the section does not, however, bear this out. I shall presently examine what documents, so far as concerns me now, are admissible in England but the language of the section plainly postulates one which bears "a seal or stamp or signature authenticating it" and the signature of a person who claims a judicial or official character. These characteristics could hardly pertain to a document which is not a public one.

13. Secondly although this section occurs in a part of Chapter V relating to presumptions, nevertheless in plain language it first makes such documents admissible and then goes on to provide for certain presumptions. We wore told that the law in force for the time being in England would, snake this entry in the records of the Ajmer Municipality admissible and for this reliance was placed upon several passages in Phipson on Evidence and Cross on Evidence but of these the only two passages which seem to me material are in Phipson where in the course of paragraph 1125 it is stated:

"Colonial registers are also receivable upon proof that they are required to be kept by the law either of their own, or of this country. Foreign registers (which term included Scots registers) are evidence of matters properly and regularly recorded therein, when proved by experts, and to the satisfaction of the judge, to have been kept under the sanction of public authority, and to be recognised by the tribunals of their own country."

The other passage occurs in paragraph 1139 and reads:

"The registers in India and Pakistan are now on the same footing ass dominion and colonial registers."

In the context of course "registers" means registers of births, marriages and: deaths. In England evidence of this character in regard to foreign docu ments is receivable under the Evidence (Foreign, Dominion and Colonial Documents) Act of 1933 the long title of which is significant:

"An Act to make further and better provision with respect to the admissibility in evidence in the United Kingdom of entries contained in the public registers of other countries and with respect to the proof` by means of duly authenticated official certificates of entries in such registers and in consular registers and of other matters."

Clearly the purpose of the Act is to make admissible evidence of entries in., the public registers of other countries and that "by means of duly authenticated official certificates of entries in such registers and in consular registers".

14. Subsection (1) of section 1 of the Act is in the following terms

"(1) If, upon consideration of a report from the Lord Chancellor and a Secretary of State, His Majesty in Council is satisfied with respect to any country that, having regard to the law of that country as to the recognition therein of public registers of the United Kingdom as, authentic records and as to the proof of the contents of such registers, and other matters by means of duly authenticated certificates issued by public officers in the United Kingdom, it is desirable in the interests of reciprocity to make with respect to public registers of that country and certificates issued by public officers therein such an order as it hereinafter mentioned, it shall be lawful for His Majesty in Council to make such an Order accordingly."

We have not been able to find any Order made by His Majesty in Council nor has any been shown to us but I think it may well be presumed that such an order must have been made for one of the passages from Phipson on Evidence that I have already quoted could, I think, be based only upon the‑, existence of such an Order. Even so the Act itself lays down a variety of matters for which provision may be made in such an Order and these are stated in subsection (2) which reads thus:

"(2) An Order in Council made under this section may provide that in all parts of the United Kingdom‑

(a) a register of the country to which the order relates, being such a register as is specified in the Order, shall be deemed to be a public register kept under the authority of the law of that country and recognised by the Courts thereof as an authentic record, and to be a document of such a public nature as to be admissible as evidence of the matters regularly recorded therein;

(b) such matters as may be specified in the Order shall, if recorded in such a register, be deemed, until the contrary is proved, to be regularly recorded therein;

(c) subject to any conditions specified in the Order and to any requirements of rules of Court a document purporting to be issued in the country to which the Order relates as an official copy of an entry in such a register as is so specified, and purporting to be authenticated as such in the manner specified in the Order as appropriate in the case of such a register, shall, without evidence as to the custody of the register or of inability to produce it and without any further or other proof, be received as evidence that the register contains such an entry;

(d) subject as aforesaid a certificate purporting to be given in the country to which the Order relates as an official certificate of any such class as is specified in the Order, and purporting to be signed by the officer, and to be authenticated in the manner specified in the order as appropriate in the case of a certificate of that class, shall be received as evidence of the facts stated in the certificate;

(e) no official document issued in the country to which the Order relates as proof of any matters for the proof of which provision is made by the Order shall, if otherwise admissible in evidence, be inadmissible by reason only that it is not authenticated by the process known as legislation."

15. I should assume in favour of the successful candidate that the order in question does provide, in effect, that such evidence as would in India be admissible in regard to the contents of a register kept in India under proper authority would be admissible by reason of this Act in England. In order, therefore, that Exh. 49 should be admissible here in Pakistan it must be shown I think that it would be admissible in India or, if it purported to be the certified copy of an entry in an English register, then admissible in England by the English Law, and therefore, in either event admissible in England before it can be said that by reason of section 82 of the Evidence Act it would be admissible here. So far as the Indian law is concerned it its of course the same as ours and with that I have dealt. As to the law in England on the admissibility of similar documents of an English origin several passages in Phipson on Evidence show, I think, that, in substance. the English law is the same as ours. The opening paragraphs of Chapter XXXIII of this treatise, paragraphs 1201 and 1202, broadly state the position:

"1201. The certificates, letters or returns of public officers, entrusted by law with authority for the purpose, are prima facie, but not generally, conclusive, evidence of the facts authorised to be stated, but not of extraneous matters. And where it is part of the duty of an official to supply copies of any record, register or other document, such copies are admissible as secondary evidence of the originals. Unless, however, expressly so made by statute, a certified extract from such documents, or a certificate of its effect or result, is inadmissible.

1202. The ground upon which such documents are admitted is that where the law has appointed a person to act for a specific purpose, it will entrust him so far as he acts under his authority.' Where the certificate consists merely of a copy of another document, e.g., a register, its admissibility will depend on that of the original document."

The principle as stated is clearly the one underlying sections 76 and 78(6) of the Evidence Act the former of which talks of a copy made by the public officer having the custody of a public document while the latter refers to a copy "duly certified by the officer having the legal custody of the original".

16. As to what in English law a certified copy is, paragraph 1697 of Phipson states the position thus:

"1697. Certified copies.‑A certified copy is a copy signed and certified as true by the officer to whose custody the original is entrusted; and it is admitted, in the same way, upon the credit of such officer without examination with the original. Unless, however, otherwise provided by statute, a certified extract or a certificate of the result or effect of a document is not admissible. If certificates purport to be verified in the manner provided by the statutes which render them admissible, they may be given in evidence without proof of the seal, signature or official character of the party verifying them. Certified copies are the usual mesas of proof of such public non judicial documents as registers and the like; and they are also sometimes used in the case of judicial documents. Under the Children and Young Persons Act, 1933, section 100, proof of wages may be given by a copy of an entry in the employer's wages book, or where there is no wages book by a statement signed by the employer or any responsible person in his employ; and under the Magistrates' Court Act, 1952, sections 80 and 128(2), a written statement that wages of any amount have been paid to a person during any period, if purporting to be signed by his employer, is prima facie evidence of that fact in proceedings to enforce payment of fines, affiliation orders and rates."

This is precisely the requirement of our section 76.

17. In regard to documents of a public nature in paragraph 1723 the: position is thus summarised:

"The removal of books of general concernment from their proper place of deposit, at the call of individuals, involves, however, so much inconvenience and risk, that it has long been a rule of the common law that whenever a document is of a public, which here includes judicial nature, and would be evidence if produced, an examined copy thereof is also evidence, without production of the original, or accounting for its absence, e.g., of church registers, of corporation books, of Manor‑books, or proceedings in the ecclesiastical and admiralty Courts, of notes of judgments in inferior Courts, though not entered upon the record, or probates of wills of personality (though not formerly of realty over which ecclesiastical Courts had no jurisdic tion), of Bargains and Sales, of Deeds enrolled, and the like, but where the document is of a private nature, e.g, a rent roll, the original must be produced unless lost or destroyed when copies will be admitted. This rule has since been confirmed as to be examined, and extended to certified copies by statute, it being enacted by the Evidence Act, 1851, section 14, that: "Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere production from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible . . . . . provided it be proved to be an examined copy or extract, or . . . . . purport to be signed and certified as a true copy or extract by the officer to whose custody the original is entrusted . . . . .' Where the copy is signed and certified as the section provides it is admissible on its mere production in Court without calling a witness to verify it or prove the custody."

18. Finally in regard to registers, whether of British Colonial or Foreign origin, in paragraph 1724 appears the following statement:

"1724. The statutory registers are provable either by production of the originals (which though it may be allowed, cannot, even in criminal cases, be enforced), or by certified copies under the various Acts rendering them admissible, it being now sufficient if such copies merely purport to be duly certified, or by examined copies. And oral evidence of the identity of signatures therein is admissible without production of the register. Public registers, . admissible as such by common law, may also be proved either by production, or by examined or certified copy under the Evidence Act, 1851, section 14, supra. Non‑parochial registers deposited with the Registrar‑General must in criminal cases be proved by production and not by copy. So, in peerage cases, the original registers must in all cases be produced if English, but not perhaps if Irish or Scots. And the same rule holds where registers inadmissible as public documents are received on other grounds. Records of the ecclesiastical Courts exercising testamentary and matrimonial jurisdiction until 1857 are not required to be transferred to the Public Record Office under section 3 of the 1958 Act, but the Lord Chancellor can direct the President of the Probate Division to transfer them to an appointed place of deposit. Indian registers of baptism and marriage, whether before the Registration of Marriages Act, 1851, or since, have been proved either by production of the registers, or of the copies thereof transmitted to, and deposited at, the India office (now the Commonwealth Relations Office) or by examined or certified copies of the original registers, or more usually by production of the certificates from the India Office, A copy of a Nova Scotia parish register has been admitted on proof that the witness examined it with the original register, that it was in the hand writing of the rector, and that the register was required to be kept by the local law. Foreign registers are provable by examined copy, the originals in general not being allowed to be removed, or by certified copies of extracts."

19. I have made these somewhat extensive quotations from Phipson on 'Evidence in order to show, as I am inclined to hold, that section 82 of the Evidence Act cannot be used so as to make any piece of paper admissible evidence merely because it purports to be a copy of an, entry in a register kept in India. Virtually the same requirements as our law insists upon in the case of certified copies apply with as much force: In that view of the matter it seems to me unnecessary to dilate upon this question any further since I have already held that sections 76 and 78 do not render Exh. 49 or Exh. 49‑A admissible: Moreover, there is no evidence before us that by the law in India, such a register, as, it is claimed, contains the original of the entry of which Exh. 49 is stated to be a copy is required to be kept by Indian Law. It may seem technical but plainly the law obtaining in India today is the law of a foreign country. Mr. Khalid Ishaque claims that the register is required to be kept by reason of Act VI of 1866, namely; the Births, Deaths and Marriages Registration Act which is as much a part of Pakistan law as it is of Indian law. I am unable to agree. The Act which is in force in Pakistan no doubt is this Act and, when enacted, was no doubt in force in an area which included both present time India and Pakistan but what obtains in India today, although it may be verbatim the same Act, is not in the eye of the law the same Act as is in force in Pakistan. The Act is in force in Pakistan because of a validity acquired from successive constitutional enactments in this country just as it is (if not modified) in force in India by constitutional enactments of that country. The mere fact that the two might be textually the same do not make them the same law and for all we know, this Act may have been repealed or amended in India Assuming, however, for the sake of argument that this Act is in force in India in precisely the same language in which it is on the statute book of our country all that the Act itself says is that the Provincial Government shall establish a general registry office for keeping certified copies of registers of births and deaths. It does not say that the Municipal Council of Ajmer is such a general registry office. I am extremely doubtful.. therefore, whether we can properly hold that such a register as would be the original of Exh. 49 is required to be kept by Indian law in India.

20. Upon the basis that this purported certified copy would be receivable in England and, therefore, by reason of section 82, is receivable here, the document would no doubt be admissible. The presumption, however, as to the signature of the person authenticating it or of the official character which he claims can hardly arise in a case, such as the present, where upon the face of it the document does not so much as describe such official character. If under the signature of Ganpat Lal had been given his designation and there was something more written upon Exh. 49 by which it could be said that Ganpat Lal was claiming to hold such an office as would make him the officer having the custody of then original then there might have been something to say in favour both of the admissibility of this document and what could be held as being proved by. it in the absence of rebutting evidence. Nothing, however, appears under the signature except the words "Municipal Council, Ajmer". and obviously Ganpat Lal is not the Municipal Council. On the best view of the matter, therefore, I am quite unable to see how section 82 of the Evidence Act can really help the successful candidate in this case.

21. The manner in which the purported certified copy has been brought from India and then produced before the Tribunal is also not such as leads to any satisfaction. The person who obtained it from the Municipal Council is not a witness and we, therefore, do not even have the advantage of somebody getting into the witness‑box and saying that he himself went to the Municipal Council and there a certified copy was made and given to him. All that we have is the evidence of Abdul Jalil who says that he got it from one Abdul Latif. He could not say how Abdul Latif in turn obtained it and, quite clearly, if he had said so this evidence would have been inadmissible as being hearsay. If in these circumstances we allow section 82 to be used for the purpose of making such a document not merely admissible but also as carrying a presumption, virtually, of its genuineness then almost any kind of evidence purporting to be a certified copy of a public document in a foreign country would be receivable and, for all practical purposes, carry with it an irrebuttable presumption. I am, therefore, of the opinion that section 82 does not render this document admissible either.

22. Mr. Khalid Ishaque went on to argue that even if we hold that Exhs. 49 and 49‑A are not admissible for the purpose of proving that there was such an entry in the register of births and deaths they might be admissible for a collateral purpose. He argued that it is possible in law that a document may not be admissible for the truth of the contents but yet may be admissible for the purpose of corroboration and for that purpose he drew an analogy with statements of witnesses recorded before they gave evidence in the trial. Obviously such statements would not be proof of the truth of their contents but would be available for the purpose of corroborating or contradicting the statement of the witness given in Court. The analogy, I think, is not well founded. Such statements are expressly made admissible for the purpose of corroboration by section 157 of the Evidence Act.

23. Having held that Exhs. 49 and 49‑A were not admissible the Tribunal went on to consider the other evidence as to age. On the aide of the petitioner this consisted in the several forms which the successful candidate had filled for the purpose of his University examinations which clearly show the date as being 15th June 1947. On behalf of Usman Kennedy the evidence in the main was the oral evidence of his father, his maternal grandfather and others who knew him in Ajmer. There was also the evidence of an X‑Ray specialist who gave it as his medical opinion that he had attained the age of 25 at the relevant time. Now essentially this was a question of fact and if the learned Judge relied upon the admissions of the successful petitioner himself I cannot possibly say in the course of a second appeal (and it is to be remembered that ‑the nature of the appeal before us is one of second appeal) that his finding is vitiated by any error of law. It was argued before us that at is unfortunately a common practice for people to show a lower age in the case of their children when they enter school in order that their chances of obtaining Government service and, if they have obtained it, of enjoying it for a longer period be increased. In support of this and, therefore, of the wisdom of not relying too much upon school certificates we were referred to a large number of cases which I do not mean to quote. I agree that there is such a tendency but I have yet to see a case in which it has been laid down as a matter of law that on that account any evidence based upon such certificates must be ruled out if there is any other evidence whatever to the contrary. All that has been held in these cases is that if there is good and reliable evidence to the contrary then, as a matter of appraisal of evidence, rather than as a matter of law, it would be wise not to place too great a reliance upon such certificates. Besides, I do not think that the present is really a case of this kind. It is to be‑ remembered that the successful candidate did not attend school at all and the question, therefore, of his stating a birth date did not arise until he wanted to appear for the Matriculation examination as a private candidate. At this time his father swore an affidavit which mentions the date 15th June 1947. All subsequent forms have been signed by the successful petitioner himself at a time when he was sufficiently grown up and even a major to understand what he was doing and even in the electoral list it is clear that his age was entered on the basis of a later birth date than he now claims. At no time until a few months before the present election did he seek any correction in the records of the University or the Education Department and the explanation offered is that he was under the impression that he was bound to state the same age as he had done while appearing for the Matriculation examination. I am not myself attempting to decide this question as a matter of fact as if I were the original Judge or a Court of First Appeal, and I say all this merely to show that there was quite enough material on the basis of which the Tribunal preferred to rely upon his own written admissions.

24. In regard to the correction also in the electoral roll the manner in which the correction has been made is far from satisfactory and indeed the evidence that has been brought upon the point does seem to indicate that the correction had not been made in the manner required and authorised by law but inasmuch as the Tribunal itself did not base its conclusion,, even in part, upon this aspect of the matter, I do not think it necessary to discuss it further.

25. During the hearing of the case before the Tribunal the successful candidate asked that it be adjourned till he could obtain better evidence from India, that is to say, a certificate copy duly attested as required by section 78(6) of the Evidence Act. We had, at the time, and do not have still a High Commissioner or other diplomatic agent in India. The Court can clearly take judicial notice of this fact and also of the circumstances now prevailing which make it difficult to say when we will. The Tribunal refused this request and an appeal to this Court failed as not being maintainable. Mr. Khalid Ishaque has refrained from making this matter a ground of attack on the correctness of the final decision of the Tribunal.

26. The question next arises whether, having held that the successful petitioner was not qualified to stand at the election and that, therefore, his election is void, tree learned Judge ought not to have awarded the seat to the petitioner who had the next highest number of votes. In an earlier case, the sole distinguishing features between which and the present was, that the successful petitioner was unseated on the ground of having been guilty of corrupt and illegal practices while in the present case the only question is one of the qualification of the successful petitioner, the same Tribunal awarded the seat to the candidate who had secured the next' highest number of votes, and a Bench of this Court upheld this decision. I was not only a member of that Bench but the judgment, since reported as Syed Saeed Hassan v. Pyarall Allana (P L D 1974 Note 73 at p. 115) was in fact written by me. On then basis of a number of decisions of the Supreme Court I came to the` conclusion that an interference with the decision of an Election Tribunal is permissible only strictly within the limits within which a statute confers that power upon a Court. From this I deduced the further principle, at least by implication, that both the American and the English doctrines on the question whether the votes cast in favour of the candidate whose election is being declared bad, should have any effect upon the further question whether any body else should be declared seated were no part of the law of our country. In brief the American doctrine is to the effect that such votes. even though they do not have the result of electing the candidate in whose favour they were cast, must yet be regarded as being votes cast against the others and would therefore effectively bar the seating of such other persons. The English doctrine on the other hand: is that such votes must not be regarded as having been thrown away' and again, therefore, the result would be that no other person could be' declared seated. Apart from the two passages in Halsbury's Laws of England and the American Jurisprudence which were cited before us in that case and which have been reproduced in the judgment no case was cited for the purpose of showing that either of these doctrines was a part of our law. The Indian cases that were cited I refused to follow because of the difference in language between the relevant Indian statute and ours. 3n this view of the matter I said :

"I have already attempted to show that interference with the decision of an Election Tribunal is permissible to the extent and the extent only authorised by statute. Unless, therefore, it is possible to hold that the Tribunal was in error on a point of law in reaching the, conclusion that it ought to award the seat to the candidate having the next highest number of votes who has claimed the seat, we cannot interfere with that decision I am entirely unable to agree that we can or must import either the English or the American concept. Both these concepts necessarily are a result of the constitu tional history of those countries and I think we must be governed by our own statute. That statute, as I have said before, contains no words of limitation. It is not. therefore, possible to say that the Tribunal should have awarded the seat only upon the basis of an arithmetical error or of the wrong counting of the votes in favour of the returned candidate and then, by arithmetical calculation, to say that the actual majority was in favour of the candidate who received the next highest number of votes. These words merely are that the Tribunal be satisfied that such other contesting candidate was entitled to be declared elected. Now if one rejects both the English and the American doctrines and one accepts a finding that Saeed Hascan's election was void then clearly the person who had the next highest number of votes is entitled to be declared elected. Subject, therefore to the claim of Syed Lutfullah, I think, the Tribunal was right in awarding the seat to Pyarah Allana."

27. It now appears that in reaching this decision I took no note of ‑the decision of the Supreme Court in Rashid Ahmad v. Barkat Ali (PLD1968SC301) which was not cited at the bar and which we did not ourselves discover. In this case their Lordships of the Supreme Court expressly approved of the English doctrine in language which makes it plain, that they regarded that test as being the proper one to apply in cases of this kind. It is true of course that that was not a decision upon the statute which I am now concern ed with, namely, the National and Provincial Assemblies (Elections) Ordi nance, 1970 but with the Electoral College Rules, 1964 made under the Electoral College Act, 1964. The rule in question, rule 36 (1‑A) reads thus :‑

"36(1‑A). The Tribunal shall declare the election of the returned candidate or the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provision of the Act or these rules."

It might, however, be observed that the language of this rule is, so far as is material, identical with section 67 of the present Act which reads thus :‑

"67. The Tribunal shall declare the election as a whole to be void if it is satisfied that the result of the election has been materially affected by reason of‑

(a) the failure of any person to comply with the provisions of this Ordinance and the rules ; or

(b) the prevalence of extensive corrupt or illegal practice at the election."

Now clearly in the earlier case I overlooked this judgment of the Supreme Court in which, after reproducing the sub‑rule, their Lordships went on to observe :‑

"From the second part of the rule it is clear that before the election can be declared as a whole void, the Tribunal must find that the election has been materially affected by reason of the failure of any person to comply with, or the contravention of, any provisions of the Act or these rules.

Now, in this case the respondent Mirza Barkat Ali secured 162 votes and the appellant Rashid Ahmad Rahmani 136 votes. In order to ascertain where `the election has been materially affected' the Tribunal has to be satisfied whether the votes given to Barkat Ali should be thrown away so as to give the seat to Rashid Ahmad Rahmani who has secured lesser number of votes. It is impossible to foresee what the result would have been if Barkat Ali had not been in the field. There was also a third candidate and it would not be possible to anticipate whether some or all the wasted votes would not have gone to him. Hence, such a question cannot be answered on speculation or conjectural basis."

The Courts in England have laid down a perfectly sensible criterion upon which the Tribunal can proceed to declare its opinion in such a case. The conclusions have been summarised thus in paragraph 549 of Halsbury's Laws of England, 3rd Edition, Vol. 14 :‑

"549. Votes given to a disqualified candidate.‑Votes given for a candidate who is disqualified may in certain circumstances be regarded as not given at all or thrown away and for so deciding a scrutiny is not necessary. The disqualification must be founded on some positive and definite fact existing and established at the time of the poll so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. Examples of the sort of disqualification that will cause votes to be thrown away are being an alien, infant, or a person convicted of felony and sentenced to a term of imprisonment exceeding twelve months and still serving the sentence, or possibly holding an office of profit under the Crown. If, however, the disqualification is not notorious and depends on legal argument or upon complicated facts and inferences it would appear that even though the candidate may be unseated by reason of his disqualification the votes given to him will not be thrown away so as to give the seat to the candidate with the next highest number of votes. For the votes given for a candidate to be thrown away the voters must before voting either have had or be deemed to have had notice of the facts creating the candidate's disqualification. Votes given without such notice are good. If after deducting the votes given after such notice from the total number of votes given for the disqualified candidate he remains in a majority, the minority candidate cannot be seated and there must be a fresh election."

This question has also been fully discussed In re : Bristol South‑East Parliamentary Election.

In the instant case the voters could have had no notice of the fact that inclusion of Barkat Ali's name in the final electoral roll was in violation of sub‑rule (3) of rule 22. Hence, they cannot be dis franchised for no fault on their part. Votes given by them without notice of the above disqualification ought to be treated as good votes. As Barkat Ali had majority votes, the minority candidate cannot be declared elected.

28. I am of course bound by this case which I think is clearly applicable for the language of the rule is, as I have stated, identical with the language of the section which is relevant for my present purpose. Moreover clearly their Lordships were also laying it down as a general principle of the law of elections that "the voters could have had no notice of the facts" that there was a disqualification and, therefore, cannot be, disenfrachised for no fault on their parts. The situation in the present case is identical. Although Usman Kennedy had not attained the age of 25 years the electorate had no reason to think so. His nomination paper had been accepted and his name appeared on the electoral list. There was no evidence before the Tribunal that any candidate sought to campaign on the basis that he was not qualified as to age and it is impossible in. the circumstances, therefore to hold that his disqualification was notorious. In these circumstances . to award the seat to Lal Muhammad would be in the language of the Supreme Court, to disenfranchise the voters. I have therefore, come to the conclusion, disagreeing with my own previous view; that upon this question also the Tribunal was right and that the petitioner's appeal cannot succeed.

29. I would, therefore, dismiss both these appeals with costs in favour of the contesting respondents.

FAKHRUDDIN G. EBRAHIM, J.----I agree,

S. A. H. Appeal dismissed.