P L D 1986 Karachi 179 (PLP)

NAIMUDDIN, J.‑By this Constitutional petition under Article 9, of the Provisional Constitution Order, 1981, calls in question the order dated . 24‑8‑1983, passed by the Deputy Commissioner/Appellate Authority, Dadu, whereby he restored the nomination papers of respondent No. 3, for Union Council Nos. 1 and 2, Jhahgara and District Council 48, of District Council, Dadu, which were rejected by the Civil Judge, and Returning Officer, Sehwan on the ground that respondent No. 3 was not qualified to be a candidate being below the age of 25 years and a member of Zia Himayat Tehrik.

2. Consequently, respondent No. 3 contested the elections from constituency Nos. 1 and 2 for a general seat in the Union Council and also of the District Council Dadu and succeeded in both the elections. He. however, resigned from the District Council seat.

3. Thereafter, the petitioner was elected as member of the Union Council Jhangara, Taluka Sehwan, in the bye‑election of the Union Coun cil Jhangara, Taluka Sehwan held on 21‑1‑1984, under the provisions of the Sind Local Government Ordinance, 1979. He has questioned the election of respondent No. 3 on the ground that be was not qualified to be a can didate for election to the Union Council and particularly Union Council Jbangara and he is not entitled to remain as member of the Union Council or as Chairman, Union Council, Jhangara, Taluka Sehwan District Dadu, to which office he has been elected subsequently..

4. We have heard Mr. Imam Ali Memon, learned council for the petitioner and Mr. Kazi Munawar Ali, learned counsel for respon dent No.

3. The Deputy Commissioner, and appellate Authority, Return ing Officer, for District Dadu, respondent No. 2 and other respondents have remained absent.

5. It is submitted by Mr. Imam Ali Memon, that respondent No. 3, being below 25 years of age was not qualified .for being nominated and elected as a Member, Union . Council, Jhangara and the order, dated 24‑8‑1983, passed by the Returning Officer, Sehwan, District Dadu, respondent No. 2, whereby he rejected the nomination papers of respon dent No. 3 on the ground that he was below 25 years of age, and was a member of Zia Himayat Tehrik, was according to law and the order passed by the Deputy Commissioner and Appellate Authority, District Dadu, whereby he accepted the nomination papers is without lawful authority. He submitted that the Returning Officer in rejecting the nomination papers relied on the School Certificate of Primary School Baber, Taluka Sehwan, District Dadu, wherein the date of birth of respondent No. 3 was mentioned as 15‑5‑1960, and he also relied on the age given in the identity card of respondent No. 3.

6. On the other‑band Mr. Kazi Munawar Ali has submitted that respondent No. 2 has rightly given due weight to the report of the Radio logist, dated 22‑8‑1983, and his order is not without jurisdiction.

7. The two officers have, referred to three documents while conside ring the age of respondent No.

3. The first is the primary school certificate which shows that the date of birth of respondent No. 3 as 15‑5‑1960. The second document is the identity card a photostat copy whereof is annexed to the petition, wherein the date of birth written is 15‑5‑1957. The Returning Officer in his order has not said anything about the date of birth written in the identity card. He has simply stated that in the presence of School Certificate and the age given on identity card pro duced by the candidate it is not proper to count the age of the candidate according to the Medical certificate." The third document in the report of the Radiologist according to which the age of respondent No. 3 is between 25 ‑40 years.

8. Now, we would first take up the two documents on which reliance was placed by the Returning Officer in holding respondent No. 3 not to be qualified for being a candidate for election under the provisions of the Sind Local Government Ordinance, 1979, namely, the Primary School Certificate and the identity card on which Mr. Memon has also heavily relied upon. As regards the Primary School Certificate it may be stated that the date of birth given therein is not conclusive for the purpose of disqualifying from membership of elective body on the ground of age. If any authority is needed reference be had to Muhammad Nawaz Khan v. The Collector, District Gujranwala and another (P L D.1960 (W. P.) Lah. 1123). In this case it was observed by Kayani, C. J., that "it is now widely known that parents give a younger age to school boys than they actually possess in order that it should help them in Government service. Reference may also be made to. A I R 1941 Pesh. 38.

9. As regards the identity card it may be stated that a Photostat copy of the identity card has been annexed to the petition by the peti tioner wherein the date of birth given is 15‑5‑1957. According to this date respondent No. 3 was over 25 years of age on the date of submis sion of nomination papers. The learned counsel for the petitioner how ever, submitted that the identity card has been interpolated and year o birth has been changed from 15‑5‑1960, to 15‑5‑1957. However, the Returning Officer in his order has not stated so nor. has he stated in the order the date of birth of respondent No. 3. as 15‑5‑1960. It is not possible to resolve this controversy in this jurisdiction.

10. As against the aforesaid documents respondent No. 2. has relied on the report of the Radiologist. No exception can be taken to it as the age could be proved by the opinion of Radiologist. In the case of Iftikhar v. The State (P L D 1971 Pesh. 27), a Division Bench of Peshawar High Court held that "for the proof of age, the best evidence is that of Radiologist and preference cannot be given to the School Certificate over the evidence of X‑Ray age".

11. In addition the learned counsel for respondent No. 3 has relied on the entry of age in the electoral roll in support of the claim that respondent No. 3 was qualified on the dale of nomination. According to this entry the age of respondent No. 3 on 1‑1‑1979, was 21 years. Thus, on the date of nomination he was more than 25 years of age. In regard to such entry it may be stated that the entries in the electoral roll regarding age are final as regards the right to vote though not in respect of age when question arose whether voter on the electoral roll was of requisite age for being a candidate or member to an elected office. Reliance is placed on Serajul Islam Khan v. Ahsan Ali Mondal and others (P L D 1969 S C 5) and Riaz Afahrnvod Khan Mazari v. Mureed Hussain and others (1980 S C M R 548), wherein it was observed by Anwarul Haq, C. J., at page 550 of the report as follows "After hearing the learned counsel for the parties, we are of the view that the order made by the learned Judge in the High Court can not be sustained, as it clearly proceeds on an erroneous view of the law as to the finality attaching to the entry of age in the electoral roll for the purpose of determining the eligibility of a candidate to stand for election to a Local Council." Reference was made, with approval to the following observations made in the majority judgment of the High Court of Sind in a Full Bench case of Muhammad Tufail v. Muhammad Saleem and others (P L D 1967 Kar. 104). "The finality which attached to the entries in the electoral roll must be confined to the object and the purpose for which the electoral roll is prepared, namely, to confer the right to vote on the basis of adult franchise as contained in Article 157 of the Constitution, the entry of age appearing in the electoral roll would obviously be prima facie .evidence in that behalf, but it cannot be held that finality attaches to it for the purpose of Article 158(1). The sole object of the entry of age appearing in the electoral roll is to show that the person is above 21 years on the qualifying date as required by Article 157 of the Constitution read with section 8 of the Electoral College Act, 1964. The determination of the exact age of the person concerned is not contemplated by any provisions of the Act of the Rules." The above view was also upheld by the Supreme Court in Serajul Islam Khan (supra)).

12. To the same effect same are the two recent decisions of Lahore High Court in Abdus Sattar v. Muhammad Jameel and another (1984 C L C 2296) and Haji Abdur Rehman v. Ghulam Hassan and another (1984 C L C 752).

13. We have, therefore, reached the conclusion that the order passed by respondent No. 2 was based on relevant consideration and cannot be said to have been passed without lawful authority. Even if we assume that the order is erroneous it cannot, in any case, be said to be without F authority, and therefore, does not call for any interference. Reliance is placed on Muhammad Hussain Munir and others v. Sikandar and others (PLD1974SC139) and Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others (1974SCMR530).

14. In the former case it was observed that the tribunal having jurisdiction to decide the mater is competent to decide it rightly or wrongly and mere fact that the decision is incorrect does not render the decision as without lawful authority.

18. We, therefore. find no merits in this Constitutional petition and accordingly dismiss it leaving the parties in the circumstances of the case to bear their own costs. ABDUR REHMAN, J.‑I agree with the above order as well as the reasoning. ‑However, I would like to add that no doubt the entries in the electoral roll are not to be treated as final except as regards the right to vote but the mere fact that they are not to be treated as final does not mean that no weight whatsoever is to be given to these entries in respect of other question, such as whether the voter was of requisite age for being a candidate or member of an electoral office. After all an entry in the electoral roll is not different from an entry in Identity Card Regis ter or School Register in the eyes of law. It may he pointed out that an entry in any of these 3 registers is an admission made by a party and it could not have been produced in his favour, except as provided under section 21(2) and (3) of the Evidence Act of 1872, which is equivalent to section 24(2) and (3) of Qanun‑e‑Shahadat, 19849 section 34(2) and (3)1 of Qanun‑e‑Shahadat reads as under :‑.‑ "(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable. (3) An admission may be proved by or on behalf of the person mak ing it, is relevant otherwise than as an admission."

2. We, therefore, find that there are 2 pieces of evidence in favour of the petitioner i.e. one being the entry in the electoral roll made about 5 years before the filing of nomination paper. The first piece is a statement by the petitioner while the second piece is its corroboration by a scien tific opinion. As against this the evidence against the petitioner on this point is of two entries i.e., one in School Register and the other perhaps in identification card Register based on the statement made by or on behalf of the petitioner.

3. Hence it cannot be said that the order of Deputy Commissioner is based on no evidence. A. A. Petition dismissed.