1998 PLP 602 (SCMR)

MUKHTAR AHMAD JUNEJO, J.‑‑‑This is an appeal with leave to this Court directed against a judgment dated 8‑6‑1994 delivered by the Lahore High Court, Rawalpindi Bench in Civil Revision No. 336 of 1990. Admittedly respondent Subedar Major (Retd.) Abdul Razzaq Joined service of the appellant on 22‑8‑1975 as Security Officer after his retirement from Pakistan Army. During the course of service of the respondent with the appellant, the latter obtained military service record in respect of the former, to alter his date of birth. Respondent issued a legal notice to the appellant to consider his date of birth as given in his birth certificate and maintain the record accordingly, but such request was turned down. Consequently, the respondent filed a suit in a Civil Court for a declaration that his date of birth mentioned in his birth certificate was correct and that the appellant be directed to correct the same accordingly in service record of the respondent. Respondent also sought issue of permanent injunction restraining the appellant from retiring the former. Under a judgment and decree dated 12‑2‑1990 the suit was decreed by the trial Court, but in appeal a learned Additional District Judge, Islamabad reversed the decision. Respondent took the matter to the Lahore High Court, which accepted his Civil Revision No.336 of 1990 and set aside the decision given by the Additional District Judge and restored that of the Civil Judge. Hence this appeal. Maulvi Anwarul Haq, learned counsel for the appellant argued that the entry from the Birth Register (copy Exh.P‑1) does not pertain to the respondent, as it was in respect of one Muhammad Rashid and that in his evidence the respondent as P.W.2 did not state that the Birth Certificate P‑1 pertained to him. It was also argued that the respondent could not have joined army on 16‑8‑1943 at the age of 14 years, 5 months and 20 days as the minimum age prescribed for entering into army service was 16 years. Mr. Kaukab Iqbal, learned counsel for the respondent conceded that entry copy Exh.P‑1 appeared to be in name of Muhammad Rashid, but argued that certificate P‑1 was in respect of the respondent as per a decree obtained by him on 25‑10‑19971 and that in the National Identity Card his date of birth was mentioned as 29‑3‑1929, which date he gave to the appellant at the time of joining the service under him. It was also argued that the respondent continued to serve with the appellant from 22‑8‑1975 but at no stage till 1986 his date of birth as given by him was questioned. Learned counsel defended the impugned judgment as well as the judgment delivered by the Civil Judge. It was also argued that right of hearing was not afforded to the respondent. Admittedly, the respondent joined army on 16‑8‑1943 and had his actual date of birth been 16‑4‑1929 he could not have been allowed to join Army service before he was 16 years old. It is difficult to accept contention of learned counsel for the respondent that due to outbreak of World War II the persons with less than minimum age, were recruited in army in 1943. Such contention is not supported by any documentary evidence. Coming to the entry copy P‑1 in the Birth Register, it is worthy to note that it was issued on 12‑8‑1935. The respondent sought declaration from Civil Court in respect of said entry in Birth Register, in 1971. Said decree was obtained in a suit filed by the respondent against the public‑at‑large. At least the Authorities maintaining the Birth Register, should have been impleaded in said suit as defendants. Said decree, by no stretch of imagination, can be binding on anybody, much less on the appellant, There is no explanation, as to why the respondent waited for a period of 36 years to obtain the decree. In his deposition, the respondent appearing as P.W. 2, admitted that he was recruited in army in August, 1943 and that he had mentioned his age to be 16 years. He further stated that he had obtained the birth certificate in 1971. He denied the suggestion that he was issued the birth certificate in 1935. This would amount to saying that the respondent disowned copy of entry Exh. P‑1, which was admittedly obtained on 12‑8‑1935 as per the endorsement on it. Dealing with the evidence, learned Additional District Judge in his judgment dated 30‑7‑1990 has commented, as follows: "As already given above in Exh.P‑1 date of birth given is 16‑4‑1929 (although it relates to one Muhammad Rashid, nevertheless the respondent claims himself as the same person having been born on 16‑4‑1929). In Exh.P‑6 the school leaving certificate of Abdur Razaq, his date of birth shown is 13‑3‑1929, in Exh.P‑4, the application submitted by him for joining the service with the appellant, he himself had given his date of birth to be 29‑3‑1929. In his Identity Card the said date is shown as 29‑3‑1929, and with the Army Authorities record, Exh.P‑3, he was shown to be of 16 years at the time of joining of Army Service. on 16‑8‑1943. It is, thus, very much clear that although heavy onus lay upon the respondent to prove his actual date of birth but he miserably failed to discharge such onus. In view of the documentary evidence produced by him and also on the basis of oral evidence led by him he could not be declared as having been born on 16‑4‑1929." The explanation furnished by the High Court about date of birth mentioned in the school leaving certificate P‑6 being different from the one given in the National Identity Card, is not convincing. It is debatable if the learned Single Judge in the High Court, while dealing with the revision application, could have delivered a judgment that can be given by an appellate C Court. In our view, learned Additional District Judge had arrived at the right conclusion, which is supported by valid reasons. Consequently, we accept this appeal and set aside the impugned judgment and the decree and restore the judgment and the decree delivered by the learned Additional District Judge on 30‑7‑1990. No order as to costs. A.A./P‑10/S Appeal accepted.