MUHAMMAD YOUNAS BALOCH Versus GHULAM MUHAMMAD BALOCH
1. IMAM ALI G. KAZI, J.‑‑ This Constitutional petition relates to an election dispute in respect of a seat being constituency No. 17 of the District Council, Karachi held on 30‑11‑1987. The petitioner Muhammad Younas alongwith respondents Ghulam Muhammad, Faqir Muhammad, Lal Muhammad, Ghulam Rasool and Jahangir were all contesting candidates for that seat.
2. The petitioner Muhammad Younas secured 1686 votes as against 967 votes received by Ghulam Muhammad Baloch the respondent No. 1 in the petition. The count of votes in respect of other candidates is not relevant for the purpose of this petition and therefore the number of votes secured by them is not being mentioned. On the basis of the count of votes the petitioner, Muhammad Younas, was declared to have been elected to the seat.
3. The respondent Ghulam Muhammad Baluch (hereinafter referred to as the election petitioner) questioned the validity of the election of the petitioner herein to that seat solely on the ground that he being below the age of 25 years was not qualified to be a member of that Council as provided under section 37(1)(a) of the Sind Local Councils Ordinance, 1979. The election petition filed by him before the Provincial Election Authority, Sind was referred to the Election Tribunal constituted for the purpose. The Tribunal after recording the evidence concluded that the petitioner herein was not qualified to be the member of that Council as he had not attained the age of 25 years. The election petition was accepted and fresh election amongst the remaining validly nominated candidates was ordered. The petitioner feeling aggrieved by the judgment dated 26th May, 1988 passed by the Election Tribunal filed this petition mainly on the ground that in spite of the documentary evidence like birth certificate, entry in the National Identity Card, Passport and driving licence indicating the date of birth of the petitioner to be 26‑1‑1961 produced by the petitioner, the Election Tribunal erroneously preferred the date of his birth to be 8‑4‑1963 as recorded in the school certificate and other entries made on that basis for the purpose of determining his age.
4. On the basis of the pleadings of the parties the Tribunal framed the following issues:‑
(1) Whether respondent No. 1 was 25 years of age at the time of fling the nomination paper?
(2) What should the order be?
5. Ghulam Muhammad Baloch the election petitioner in support of issue No. 1 examined Shamim Javed, Deputy Secretary of the Board of Secondary Education who produced record of the candidates who had appeared in the matriculation examination conducted by that Board in the year 1979. Entry in respect of Muhammad Younas in that register shows that he was born on 8‑4 1963.
6. He also examined Abdul Aziz Moghal, Head Master in Government Boys Secondary School, Village Haji Natho, Landhi. According to the record produced by him Muhammad Younas was admitted in that school or; the basis of the transfer certificate issued by the Primary School wherein his birth date was shown to be 8‑4‑1963. On leaving the school he was issued the school leaving certificate which also showed his birth date to be 8‑4‑1963. Gul Muhammad Baluch a Supervisor in the Education Department, produced application for the admission dated 11‑5‑1978 filed in the Primary School showing his birth date to be 8‑4‑1963. He also produced the counterfoil of the School Leaving Certificate of the Primary School dated 2‑8‑1974 acknowledging its receipt bearing the signature of Muhammad Younus. It also showed his birth date to be 8‑4‑1963
7. Thus the record relating to the academic career of the petitioner was produced before the Election Tribunal to shove that he was born on 8‑4‑1963 and A by calculations made on the basis thereof he had not attained the age of 25 years on the qualifying date i.e. the date on which nomination forms were filed in this case.
8. The petitioner Muhammad Younus in order to prove his age examined Syed Sabir Ali, Registrar in the Karachi Municipal Corporation. He produced an extract of entry No. 1852 dated 26‑1‑1961 from Book 26‑4 to prove that petitioner was born on 11‑1‑1961. This entry was recorded on the basis of an entry made in New Lyari Municipal Hospital on 11‑1‑1961 relating to his birth. He was the only witness produced by the petitioner before the Election Tribunal.
9. Ghulam Muhammad Baluch the election petitioner further examined one Fazalur Rehman in rebuttal. He was working in Zonal Municipal Committee (South) and had brought the record about the admission of gynaecological cases for the months of January and February, 1961 in the Lyari Hospital. He deposed that after verification of record for that period the name of Mst. Zaib‑un‑Nisa wife of Ghulam Nabi Balouch the mother of the petitioner was not mentioned as having been admitted to that hospital. The Tribunal therefore came to the conclusion that the entry produced by Syed Sabir Ali regarding the birth of the petitioner on 11‑1‑1961 was a manipulated entry and unworthy of credence. Tribunal then on the basis of the only other evidence produced by Ghulam Muhammad Baluch, the election petitioner, concluded that the correct date of birth of petitioner Muhammad Younus was 8‑4‑1963 and on calculation from that date he was under the age of 25 years and disqualified to contest the election in question.. He did not declare the second candidate, the election petitioner, as elected and directed the re‑election for the seat in question to be held among the remaining validly nominated candidates.
10. Mr. Usman Ghani Rashid the. Advocate for the petitioner has questioned the decision of the Election Tribunal on the sole ground that the learned Presiding Officer had not appreciated evidence correctly as according to him he should have relied upon the documentary evidence produced by the petitioner to prove his age. In support of his contention he has relid on a case reported in PLD 1986 Kar. 179.
11. Mr. Zaheeraddin appearing for the respondent Ghulam Muhammad Baluch has submitted that the Tribunal had scanned the evidence properly and arrived at a correct conclusion on the basis of the available evidence and the petition under‑Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 was not maintainable on the ground urged on behalf of the petitioner. He has relied on the case reported in PLD 1968 Supreme Court 301.
12. Evidence brought on record by the election petitioner as mentioned above shows the petitioner was born on 8‑4‑1963. The petitioner in order to prove his age examined the only witness, Syed Sabir All who produced an entry in the Birth Register to show th<:t. he was born on 11‑1‑1961. According to this very entry it was shown to have been recorded on the basis of entry made in the. register‑of Lyari Municipal Hospital. The Presiding Officer of the Election Tribunal for very cogent reasons given in his judgment did not accept this entry to be genuine particularly so as the register of patients kept in the hospital did not mention the name of his mother having been admitted for delivery during the relevant period.
13. The Tribunal further found that the production of National Identity Card, Passport and Driving Licence that indicated older and different date also did not help the petitioner as age mentioned therein is recorded on the information supplied by the holder of such documents. All these documents were obtained between 1980 to 1985 and are of little value in presence of record of earlier period that was preferred by the Tribunal. It is on the appraisement of this evidence that the Tribunal came to the conclusion that the petitioner was below the age of 25 years. It cannot therefore be said that the Tribunal reached such conclusion on no evidence.
14. It will be needless to reaffirm that even otherwise if it is held that the decision of a Court or Tribunal is erroneous due to mis-appreciation of evidence available on record or if some other conclusion is possible on basis thereof it I cannot be said that the order was passed without lawful authority in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 to enable this Court to correct it under its supervisory jurisdiction. Such view was taken by the Supreme Court of Pakistan in cases reported in PLD 1974 Supreme Court 139 and 1974 SCMR 530.
15. In the circumstances of the present case we had carefully examined the entire evidence recorded in the election petition and reached the conclusion that the respondent No. 7, the Election Tribunal had on proper evaluation of evidence passed a correct order and by a short order dismissed the petition on 27‑10‑1988, for reasons to be recorded later.
16. The above are the reasons that prevailed with us for the decision. The petition is accordingly dismissed with no order as to costs.
17. H.B.T./M‑710/K Petition dismissed.