2005 PLP 937 (YLR)

9. The learned counsel for the petitioner contended that respondent No. 1, Syed Noor Muhammad Shah, was not qualified to contest elections for the Provincial Assembly in view of the provisions of section 99(1) of the Representation of the People Act, 1976 as he had not attained the age of 25 years at the time of submitting nomination forms. He further contended that the Birth Certificate produced by respondent No. 1 was a bogus document as it does not bear any registration number, serial number or page number of the relevant book kept for this purpose. He also contended that permanent address written on the said certificate is not similar to the address appearing in his N. I. C. He further contended that at the time of submitting the nomination forms, respondent No. 1 did not submit Intermediate Certificate, though however, in any case, the degree issued by the Iqra University was not equivalent to B.A. Degree. He next argued that pre‑poll and post‑poll rigging took place by and at the instance respondent No. 1, details whereof has been given in the petition and evidence produced by the petitioner.

10. Conversely, the learned counsel for respondent No. 1 contended that the birth certificate is genuine which was obtained as back as in the year, 1976. Moreover the Matriculation Certificate and the N.I.C. of respondent No.1 contain the same date of birth as mentioned in the Birth Certificate. He further contended that Iqra University has been established by Ordinance VI of 2000 i.e. Iqra University Ordinance, 2000 and the same is authorized to Award Degree. As regards illegal practice, he pleaded that there is no direct tangible evidence to substantiate the commission of illegal and corrupt practices by or at the instance of respondent No.1. He contended that section 9(3) of the Act, 1976 provides that in case of any mishap or incident the Presiding Officer shall report the same to the Returning Officer. In this case there is no such report submitted by the Presiding Officer to the Returning Officer. He further contended there is no specific allegation made against Respondent No.1. He further contended that no evidence has been produced by the Petitioner to show that Noor Muhammad, Assistant Presiding Officer was injured through such allegation is not levelled against the Respondent.

11. My issue‑wise findings are as under:-- On this issue the Petitioner has stated in para. 7 of his affidavit in evidence that "the Respondent No. 1 is below 25 years. I had raised objection before Returning Officer but he did not take any action against Respondent No.1". In his cross‑examination he has stated. "I have not produced any evidence in the Tribunal that the age of respondent Syed Noor Muhammad Shah is below 25 years." Except him none of his witnesses, has said a single word about this issue. On the other hand respondent No.1 in para. 2 of his affidavit in evidence has stated. "I am adult born on 6th April 1976 at 10‑42 p.m.". In para. 3 he has further stated, "at the time of filing of nomination Form for the election to the Provincial Assembly of Sindh with PS 22 Naushehro Feroze was more than 25 years of age." He has produced Certificate of his Birth issued by Karachi Metropolitan Corporation in the year, 1981 wherein his date of birth has been shown as 6th April, 1976. On perusal this certificate at it's foot shows the Book No, Extract No. and the date of entry. Besides the certificate produced by the Respondent in respect of his Secondary School Examination held in 1992 contains the same date of birth as mentioned in the Birth Certificate. No evidence has been adduced to the contrary. In such circumstances, there is absolutely no reason to doubt the genuineness of the birth certificate produced by Respondent No.

1. According to these certificates, the age of Respondent No. 1 was more than 25 years at the time of filing the nomination form. Resultantly, this issue is answered in negative i.e. respondent No. 1 was not below the age of 25 years on the date of filing of the Nomination Form, hence was qualified to contest the Election. Issue No.2: On this issue the Petitioner in para. 7 of his Affidavit in Evidence has stated. "That I say that it has also come to the knowledge of me the Bachelor Degree submitted by the Respondent No.1 was issued by the Iqra University which is not affiliated with the University Grant Commission of Pakistan in this way his candidature for the membership of Provincial Assembly is objectionable." None of witnesses except the Petitioner has deposed on this issue. Nonetheless, in his cross‑examination the Petitioner himself candidly admitted that. "I have not produced any proof to the effect that Iqra University is not affiliated with University Grants Commission." Respondent No. 1 in para. 4 of his affidavit in evidence has stated. "That at the time of filing of nomination I possessed degree of Business Administration granted by Iqra University, Islamic Republic of Pakistan." In para. 5 he has stated. "That the above said Iqra University is chartered with the University Grants Commission for awarding degrees to the candidates." He has also produced the Provisional Certificate and the Degree issued by the said University. During the arguments, learned counsel for Respondent No.1 produced copy of Ordinance VI of 2000 (Iqra University Ordinance, 2000) whereby the said Iqra University has been established. Subsection (4) of section 3 of the said Ordinance provides as under:‑‑ "(4) The University shall have the following powers to be exercised subject to the instructions of Government‑ (i)

(ii) to admit and examine students and to confer or award degrees, diplomas, certificates and other academic distinction on and to persons who have passed its examination under the prescribed conditions. " Learned counsel for Respondent No. 1 also produced copy of a list showing the University/Degree Awarding Institutions of Pakistan and indeed the name of Iqra University appears at Serial No.7 of "Private Sector Universities/Degree Awarding Institutes". From the above, it is quite clear that Respondent No.1 has successfully discharged his burden. Since no evidence was adduced in rebuttal, the version of Respondent No.1 which is supported by documents has to be believed. Consequently, it is declared that the Bachelor Degree/Graduation Degree furnished by Respondent No.1 was valid for the purpose of contesting the Election. Issues Nos. 3 and 4; As both the issues are intermingled, they are being dealt with jointly. Though on these issues the petitioner in paras.10, 13, 14 and 15 of his Affidavit in Evidence has stated in detail the instances of alleged rigging and use of unfair means, yet nowhere in the said paras. he has stated that the said riggings/violations of rules/procedure were committed either by respondent No.1. Syed Noor Muhammad Shah himself or at least at his instance. However, in paras.11 and 12 he has stated that on the day of polling Respondent No.1 attacked upon the relative of the Petitioner namely Dr. Kamil Rajpar, former Health Secretary, Government of Sindh and during the process of such attack, one Noor Muhammad, Assistant Presiding Officer, also received injuries and his arm was fractured. An application was moved in this behalf by the polling agents of the Petitioner namely Abdul Hameed and Maula Bukhsh to the Election Commissioner. He has further alleged that many acts of rigging were committed by Respondent No. 1 and his companions. Besides the petitioner, his witnesses namely, Haji Khan Khokhar, Abdul Hassan, Moulvi Bahauddin, M. Haroon Khashkeli. Ali Murad, Mola Bux have also stated about the commission of rigging. However, none of the said witnesses has deposed that such alleged rigging were committed by or at the instance of respondent No.1, Syed Noor Muhammad Shah. Although in para. 11 of his affidavit in evidence the petitioner has stated that Respondent No.1 attached the relative of the petitioner namely Dr. Kamil Rajpar, in which one Noor Muhammad, Assistant Presiding Officer, also received injuries but in his cross‑examination he has contradicted himself inasmuch as he has stated, "It is correct that my relative Dr. Kamil Rajpar sustained injuries in the assault caused by the supporters of Respondent No. 1." Furthermore, he as stated that though they made best efforts to ‑gel tile F.I.R. registered regarding such incident but the same was not registered by the police but he has produced no material showing that on the refusal/failure of the police to register the F.I.R., the petitioner himself or any body else on his behalf made and complaint to higher authorities in this regard or subsequently filed any direct complaint to set the law in motion. Neither name of any of the alleged supporters of respondent No.1 who allegedly caused assault upon Dr. Kamil Rajpar has been disclosed, nor is it alleged that the alleged act was done with the connivance of Respondent No.1. None of the victims of alleged assault act namely Dr. Kamil Rajpar and Noor Muhammad, were tendered, in evidence to substantiate the allegations. As regards the witnesses of the Petitioner, all of them in their cross‑examination have stated that no complaint in writing was made by them regarding the rigging or their abduction on the day of polling. Assuming for the sake of argument, if it was not possible for then make such written complaint or the same was not entertained by the concerned authorities on the polling day, they could have at least lodged such complaint subsequently but undeniably no such attempt was made by them. By now it is well settled that the standard of proof required in an election petition would be like that of a charge in a criminal trial and benefit in case of doubt would go to the returned candidate. It is equally well settled that in an election petition the burden and onus to prove the allegation is basically on the Petitioner and the Petitioners are required to prove the allegations of illegal practice by an independent convincing cogent clear, consistent and confidence inspiring evidence. It is glaringly evident from the facts and circumstances of the case that the standard of proof required to establish the charge of illegal practice is badly lacking in the case. Obviously there is no hard evidence to hold that rigging was committed by Respondent No.1 to get himself elected, and that the elections were unfair. Accordingly, the above issues are answered in negative. Issue No.5: As apparently evident from the findings recorded on Issues Nos. 1 to 4, the petitioner has miserably failed to establish the allegations of corrupt and illegal practice against Respondent No.1. The petition merits to be dismissed and is accordingly dismissed. H.B.T./A‑156/K Petition dismissed.