2006 PLP 1081 (YLR)

SARDAR MUHAMMAD ASLAM, J.

This order will dispose of Writ Petitions Nos.2208 and 2210 of 2006, as common question of law and facts are involved in both these petitions.

2. Ghulam Sarwar Bodla and Shaukat Ali petitioners in Writ Petition No.2208 of 2006 were elected as Nazim and Naib Nazim of Union Council No.15/S.P. Pakpattan Sharif. Their election was challenged through election petition. Written reply was filed by the respondents. The learned Election Tribunal after hearing the arguments of the parties allowed the petition vide his order dated 1-3-2006, which has been impugned herein.

3. Respondents Muhammad Ashraf and another also filed Writ Petition No.2210 of 2006 questioning the decision of the Election Tribunal to the extent of directing re-election on the ground that they being the only contesting candidates left in the field were required to be declared as returned candidates.

4. Learned counsel for the petitioners (Ghulam Sarwar and another) contends that the learned Election Tribunal has neither framed issue nor recorded evidence and thus, deprived them of their valuable right available under rule 71(a) of the Punjab Local Government Elections Rules, 2005.

5. On the other hand, learned counsel for the respondents submits that the petitioners on no occasion before the Election Tribunal, required framing of issues and asked for permission to produce evidence. He argued that the parties were fully aware of the controversy raised in the election petition; hence no prejudice in any manner has been caused to the petitioners. Places reliance on the case of Syed Asghar Ali Shah v. Election Tribunal (2004 MLD 1912), Fazal Muhammad Bhatti and another v. Mst. Saeed Akhtar and another (1993 SCMR 2018), Kaura and another v. Allah Dicta .and another (2000 CLC 1018) and Allah Wasaya v. Irshad Hussain and another (PLD 1986 Lahore 29).

6. I have heard the learned counsel for the parties and perused the record. The main controversy requiring resolution is in regard to the age of Ghulam Sarwar petitioner. Whether he was less than 25 years on the date of filing of the nomination paper. The parties were fully aware to the controversy and annexed documents with their pleadings in support of their stance; A hence non-framing of issue and recording of evidence did not cause prejudice. The petitioners have argued the matter and did not raise any objection to the procedure adopted by the Election Tribunal. No application was ever moved before the Election Tribunal requiring him to frame preliminary issue and grant him opportunity of production of evidence. The grievance has been voiced only after decision was rendered against them.

7. The date of birth of Ghulam Sarwar petitioner recorded admittedly in Matriculation Certificate annexed with this petition is 5-3-1981. The admission form was filled by the petitioner in his own handwriting and the same thus, has to be preferred against other documents containing such an entry. The Honorable Supreme Court in the case of Abdul Khaliq and another v. Maulvi Muhammad Noor (PLD 2005 SC 962) has held that Matriculation Certificate has to be preferred against other documents i.e. National Identity Card etc. as the form for admission is filled by the person himself and mentions his age therein. The pendency of civil suit against Board of Intermediate and Secondary Education, Multan for correction of petitioner's age is of no avail to him. No order, even of interim nature, is in his favour by the Civil Court. Undoubtedly, the petitioner's date of birth B recorded in Matriculation Certificate issued by the BISE, Multan is 5-3-1981. The petitioner was, thus less than 25 years of age on the date of filing of nomination paper and thus, disqualified to contest. The learned Election Tribunal rightly deseated him which calls for no interference.

8. In Writ Petition No.2210 of 2006 Muhammad Ashraf petitioner and another cannot be declared as returned candidate in view of large difference of votes. They received 2123 votes against 3259 secured by Ghulam Sarwar and another. The votes polled in favour of returned candidate cannot be considered as throw away votes. The disqualification of Ghulam Sarwar was not notorious, so as to alert and put at notice the voters in the constituency. Reference can be had to the case of Shaukat Ali and another v. District Returning Officer (PLD 2006 SC 78).

9. For what has been discussed above, I find no merit in these petitions which are dismissed in limine. M.H./G-18/L Petitions dismissed.