1998 S C M R 1494

[Supreme Court of Pakistan]

Present: Nasir Aslant Zahi! Muna"ar Ahma Mir#a an A$ur Rehman %han! &&
S'e ()*A+ ,A(-.R /// Petitioner
0ersus
1.-.RA2(3N 31 PA%(S2AN an another///Responents
Constitutional Petition No. 5 of 1998, decided on 30th April, 1998.
4a5 Constitution of Pakistan 419675////
----Arts. 179 & 18!3"---Constitutional petition #efore $upre%e Court under Art. 18!3"
of the Constitution---&etirin' a'e of a $upre%e Court (ud'e---Point raised in the petition
)as a#out the date of #irth of respondent !Chief (ustice of Pa*istan" contendin' that
respondent )as #orn in the +ear 193, and not 193 and, thus, could not continue in his
office after attainin' the a'e of -5 +ears--.eld, %atter in issue )as not such )hich
re/uired 0o #e placed #efore the 1ull Court for hearin'---2nterpretation of Art.179 or an+
other pro3ision of the Constitution )as not re/uired.
4$5 A8e
----Correction of date of #irth---Contention that date of #irth could not #e corrected
%erel+ on the #asis of an affida3it )as %isconcei3ed. ---4Affida3it5.
495 Ci:il ser:i9e///
---- A'e of e%plo+ee---Application of e%plo+ee for chan'e in his date of #irth---
6o3ern%ent e%plo+ee under the rele3ant &ules cannot %a*e an+ application for chan'e
in his date of #irth after t)o +ears of his 7oinin' the ser3ice--Authenticit+ of date of #irth
recorded in the docu%ents, therefore, cannot #e challen'ed #elatedl+ speciall+ #e+ond
the period of t)o +ears---$upre%e Court desired that such &ule )ith re'ard to correction
of a'e should also #e applied to 7udiciar+. ---4A'e5.
Petitioner in person.
Ne%o for &espondents.
Ch. 8uha%%ad 1aroo/, Attorne+-6eneral for Pa*istan and 8.A. 9atif,: &e'istrar,
$upre%e Court of Pa*istan on Court Notice.
;ate of hearin'< 30th April, 1998.
&;-<M.N2
NAS(R AS+AM ZA,(-! &=///=e ha3e heard the petitioner, $+ed 2/#al .aider, )ho has
appeared in person. =e ha3e also heard learned Attorne+ 6eneral for Pa*istan, )ho has
appeared in pursuance of Court >rder dated ,7--1998. ?he &e'istrar has produced the
official record re'ardin' the a'e of respondent No., !8r. (ustice A7%al 8ian", )hich has
#een perused #+ the Court and then returned to the &e'istrar. ?he &e'istrar has also
produced attested copies of se3eral docu%ents under co3er of a letter of @a%ran A. 8ian
son of respondent No.,, )ho has co%e fro% @arachi and is also present, >ri'inal record
attested copies )hereof ha3e #een placed on record is a3aila#le )ith the &e'istrar ha3in'
#een #rou'ht #+ @a%ran A. 8ian, )hich has #een seen #+ the Court and then returned to
the &e'istrar. Copies of these docu%ents ha3e also #een supplied to the petitioner and
also to the learned Attorne+ 6eneral. 2n the co3erin' letter it is %entioned #+ @a%ran A.
8ian respondent No., has 'one a#road to attend a conference.
,. ?he petition is filed under Article 18!3" of the Constitution #+ the petitioner
i%pleadin' 1ederation of Pa*istan throu'h the $ecretar+, 8inistr+ of 9a), (ustice and
Parlia%entar+ Affairs, - and 8r. (ustice A7%al 8ian as respondents. 2n the petition,
reference has #een %ade to Article 179 of the Constitution, )hich reads as under<--
AA (ud'e of the $upre%e Court shall hold office until the a'e of si0t+fi3e +ears, unless he
sooner resi'ns or is re%o3ed fro% office in accordance )ith the Constitution.A
3. Accordin' to the petitioner, date of his #irth sho)n #+ respondent No., is 1-7-193 #ut
this is incorrect and his actual date of #irth is 1st (ul+, 193,, and accordin'l+ respondent
No., attained the a'e of -5 +ears on 30th (une, 1997, and as a result he has no le'al ri'ht
to continue as (ud'e of the $upre%e Court or Chief (ustice of Pa*istan after 30th (une,
1997.
2t is %entioned in the petition that in the second )ee* of (anuar+, 1998, the petitioner had
'one to A'ra !2ndia" and o#tained a true cop+ of A$cholar:s &e'ister and ?ransfer
Certificate 1or%A relatin' to respondent No.,, accordin' to )hich docu%ent date of #irth
of respondent No., is 1st (ul+, 193, and not (ul+, 193, )hich accordin' to hi% has #een
incorrectl+ clai%ed #+ respondent No., to #e his correct date of #irth. Accordin' to the
petitioner, he also o#tained another certificate dated ,1-1-1998 issued #+ the $chool
accordin' to )hich respondent No., had his initial schoolin' in a school in A'ra, )here
he, accordin' to the certificate )as a A#oardin' studentA and accordin' to the student
re'ister, his date of #irth is 1st (ul+, 193,.
2t is further %entioned in the %e%o. of petition that earlier the petitioner had filed a )rit
petition #efore the 9ahore .i'h Court #ut the sa%e )as dis%issed in li%ine on the
'round that the docu%ents on )hich the petitioner had relied i.e. $chool:s &e'ister and
?ransfer Certificate 1or%, A'ra )ere not attested and, therefore, there )as no e3idence
on the #asis of )hich it could #e said that the date of #irth 'i3en #+ respondent No.,, i.e.
1-7-193, )as )ron'.
?he petitioner no) infor%s that he has relati3es in A'ra and he had as*ed the% to 'et
copies of the said docu%ents attested #+ a Notar+ Pu#lic in 2ndia and after this )as done,
the said docu%ents #e sent to the petitioner throu'h post. After recei3in' the docu%ents
fro% A'ra, petitioner filed the present Constitutional petition #efore this Court under
Article 18!3" of the Constitution.
. Apart fro% the official record produced #+ the &e'istrar pursuant to orders of this
Court sho)in' that the date of #irth 'i3en #+ respondent No., at the ti%e of his
enrol%ent as Ad3ocate $upre%e Court )as 1st (ul+, 193, attested copies of the
follo)in' docu%ents ha3e #een produced #+ the &e'istrar, )hich ha3e #een supplied to
hi% #+ the son of respondent No.,<--
!i" 8atriculation certificate issued #+ Bni3ersit+ of $indh on 10th (anuar+, 1950, )ith
endorse%ent on the #ac* of the Certificate #+ the &e'istrar of the Bni3ersit+.
!ii" 9etter of the Bni3ersit+ of $indh, dated ,1st 8arch, 1998, reproducin' ite% No.
,8!3ii" and &esolution No. passed #+ the $+ndicate of the Bni3ersit+ in its %eetin'
held on 15th No3e%#er, 195,.
!iii" Cop+ of the %inutes of the $+ndicate of Bni3ersit+ of $indh of its %eetin' held on
15th No3e%#er, 195,.
!i3" Cop+ of the passport issued #+ the 6o3ern%ent of Pa*istan to respondent No. , on
15th >cto#er, 1953.
!3" Cop+ of pa'e No.77 of the &e'ister of Cnrol%ent of Ad3ocate of .i'h Court of
$indhD !entr+ No.,1,5 in this docu%ent relates to respondent No.,".
!3i" Cop+ of National 2dentit+ Card of respondent No., issued on ,5--1975.
2t has alread+ #een o#ser3ed that all these attested copies ha3e #een #rou'ht #+ the son of
respondent No., )hich ha3e #een placed on record and, after perusal of the ori'inal
docu%ents, the sa%e ha3e Eeen returned to hi% throu'h the &e'istrar. :
5. ?he first docu%ent is the 8atriculation Certificate issued on 10th (anuar+, 1950, #+
the $indh Bni3ersit+, accordin' to )hich respondent No., had passed the %atriculation
e0a%ination in 8arch, 199, and the date of #irth as recorded in his application for
ad%ission )as 1-th Au'ust, 193, !and not 1-7-193, as alle'ed #+ the petitioner". At the
#ac* of the Certificate, there is an endorse%ent %ade #+ the &e'istrar of the Bni3ersit+
of $indh, .+dera#ad dated 19th No3e%#er. 195,, to the follo)in' effect<--
A2t has #een pro3ed to the satisfaction of the $+ndicate that the date of #irth of the
candidate 8r. A7%al 8ian son of 8uha%%ad 8ian as recorded in his application for%
for ad%ission to the 8atriculation C0a%ination is )ron' and that his correct #irth date is
the 1irst da+ of the %onth of (ul+ of the +ear one thousand nine hundred thirt+ four.A
2n the said endorse%ent, reference has #een %ade to the satisfaction of the $+ndicate
!Bni3ersit+ of $indh" re'ardin' date of #irth of respondent No., and in this conte0t
docu%ent No., is rele3ant )hich is, dated ,1st 8arch, 1998, of the &e'istrar, $indh
Bni3ersit+ addressed to the respondent No., in )hich, )ith reference to letter 17th
8arch, 1998 of respondent No.,, the &e'istrar had reproduced 2te% No. ,8!3ii" and
&esolution No. passed #+ the $+ndicate at its %eetin' held on 15th No3e%#er, 195,.
2te% No.,8!3ii" is A?o consider the /uestion of chan'in' the date of #irth of 8r. A7%al
8ian son of 8uha%%ad 8ian fro% 1--8-193, to 1-7-193A and &esolution No. is
A&esol3ed that the date of #irth of 8r. A7%al 8ian son of 8uha%%ad 8ian #e chan'ed
fro% 1--8-193, to 1-7-193A.
9etter dated ,1-3-1998 of the &e'istrar, Bni3ersit+ of $indh, also states that he )as
for)ardin' a certified cop+ of the %inutes of the %eetin' of the $+ndicate held on 15th
No3e%#er, 195,.
?he third docu%ent is the cop+ of 8inutes of $+ndicate:s %eetin' held on 15th
No3e%#er, 195,, sent #+ the &e'istrar of the Bni3ersit+ and, at pa'e 9 of this docu%ent,
2te% No.,8!3ii" appears as )ell as &esolution No..
;ocu%ent No. is cop+ of the Passport of respondent No., issued on 15th >cto#er, 1953,
#+ the 6o3ern%ent of Pa*istan and date of #irth in the passport is 'i3en as 1st (ul+, 193.
;ocu%ent No.5 is- cop+ of pa'e 77 of the &e'ister of Cnrol%ent of Ad3ocates of $indh
.i'h Court. Cntr+ No.,1,5 in this docu%ent relates to respondent No., and his date of
#irth %entioned therein is 1st (ul+, 193. ?he last docu%ent is the National 2dentit+ Card
dated ,5--1975 No. 51--3-180-85 of respondent No., )hich 'i3es date of his #irth as
193.
-. ?he petitioner does not challen'e the authenticit+ of the aforesaid docu%ents, #ut has
su#%itted that, accordin' to his infor%ation and in3esti'ation carried out #+ hi%,
respondent No., throu'h an affida3it 'ot his date of #irth corrected #+ the $+ndicate
Bni3ersit+ of $indh. Accordin' to the petitioner this chan'e or correction could not #e
o#tained %erel+ on the #asis of an affida3it, despite the fact that authenticit+ of the
aforesaid docu%ent is not challen'ed #+ hi%.
7. ?he petitioner first su#%itted that the /uestion raised #+ hi% is of 'reat i%portance and
also in3ol3es interpretation and consideration of Article 179 of the Constitution and,
rtherefore, this petition #e placed #efore the 1ull Eench for hearin'.
=e are of the 3e) that the onl+ point that has #een raised #+ the petitioner is a#out the
date of #irth of respondent No., and, as %entioned earlier, accordin' to hi%, respondent
No., )as #orn in the +ear 193, and not 193. 2n our 3ie) it is not a %atter )hich
re/uires to #e placed #efore the 1ull Court for ,hearin'. 2t does not re/uire interpretation
or consideration of Article 179 or an+ other pro3ision of the Constitution.
8. ?he petitioner then su#%itted as follo)s<--
!a" Accordin': to the petitioner, respondent No., left A'ra in 197 and at that ti%e date
of his #irth in the record of the $chool in )hich he )as stud+in' )as 1-7-193,.
!#" 2t )as su#%itted that the chan'e of date of #irth fro% 193, to 193 is #ased onl+ on
an affida3it and, despite the fact that the petitioner )as not challen'in' the authenticit+ of
the docu%ents produced #efore us, chan'e of date fro% 193, to 193 onl+ on the #asis of
an affida3it )as of no conse/uence and #+ a &esolution of the $+ndicate on such
affida3it alone date of #irth could not #e chan'ed.
!c" Article 179 refers to retire%ent of the (ud'es of the $upre%e Court on reachin' the
a'e of -5 +ears and spirit of this Article is that the ale of -5 +ears is to #e calculated fro%
the actual date of #irth )hich, accordin' to the petitioner, in the case of respondent No.,,
is 193,
!d" ?he petitioner has also referred to the 7ud'%ent of 1ull Eench o1 this Court in the
case of 8ali* Asad Ali 3. 1ederation of Pa*istan !P9; 1998 $C 1-1" for the su#%ission
that this Court can pass an+ order to do co%plete 7ustice, and the la) as )ell as the
Constitution re/uire that an order should #e passed that respondent No., had alread+
attained the a'e of -5 +ears on 30th (une, 1997, and he has ceased to #e a (udie or Chief
(ustice of the $upre%e Court of Pa*istan fro% that date.
9. 9earned Attorne+-6eneral has su#%itted that the authenticit+ of the docu%ents
produced toda+ has not #een challen'ed #+ the petitioner, )hich docu%ents estahlished
that, in 195,, date of #irth of respondent No., )as corrected #+ a &esolution of the
$+ndicate of the $indh Bni3ersit+ )hich ha+ not #een challen'ed for nearl+ - +earsD the
sa%e cannot #e challen'ed no). 2t is further su#%itted #+ the learned Attorne+-6eneral
that, in 195,, on the application of respondent No., the $+ndicate of Bni3ersit+ of $indh,
after >ne satisfied that the correct date of #irth of respondent No., )as 1-7-193, passed
a resolution to that effect and since then, in all the docu%ents, date of #irth of respondent
No., is sho)n as 1-7-193. Accordin' to the learned Attorne+ 6eneral, these are 'enuine
docu%ents and the petitioner has also not challen'ed the authenticit+ of the said
docu%ents. 2t )as su#%itted that no reliance cats #e placed on the copies of docu%ents
)hich the petitioner has produced.
2t )as further. su#%itted #+ the learned Attorne+-6eneral that, accordin' to the
Pro3incial 6o3ern%ent $er3ice &ules and 1ederal 6o3ern%ent $er3ice &ules, a
6o3ern%ent ser3ant can 'et corrected his date of #irth )ithin t)o +ears of 7oinin'
6o3ern%ent ser3ice and thereafter such option is not open to the 6o3ern%ent ser3ant.
10. ?he docu%ents )hich ha3e #een produced #efore us toda+ as o#ser3ed are clear on
the point that, as far #ac* as 195,, on the application of respondent No.,, the $+ndicate
of Bni3ersit+ of $indh, after #ein' satisfied, corrected the date of #irth of respondent
No., fro% 1--8-193, to 1-7-193. >n the #asis of this resolution, endorse%ent )as %ade
on the #ac* of the 8atriculation Certificate of respondent No.,. ?he su#%ission of the
petitioner that date of #irth could not #e corrected %erel+ on the #asis of an affida3it is
%isconcei3ed. ?he &esolution of the $+ndicate does not sho) that onl+ an affida3it had
#een produced #efore the $+ndicate #+ the respondent No.,, #ut fro% the resolution and
fro% the endorse%ent on the #ac* of 8atriculation Certificate it is e3ident that the
$+ndicate )as satisfied, on the #asis of the %aterial produced #efore the $+ndicate that
the date of #irth on the 8atriculation Certificate )as )ron' and it )as corrected to 1-7-
193. 2n our 3ie), the $+ndicate, ha3in' ta*en such decision - +ears a'o and
conse/uential entr+ ha3in' #een %ade then, the sa%e is not open to challen'e or attac*
after %ore than four decades. =e, therefore, find no %erit in the petition.
11. &eference %a+ also #e %ade to other docu%ents produced toda+ #+ the son of
respondent No., throu'h the &e'istrar )hich include entries in the Passport issued on 15-
10-1953D enrol%ent of respondent No., as Ad3ocate of .i'h Court of $indh as far #ac*
as 1e#ruar+, 1957, and cop+ of the National 2dentit+ Card issued on ,5--1975. All these
docu%ents are consistent )ith the &esolution of the $+ndicate of Bni3ersit+ of $indh and
%ost of the% are part of the pu#lic record.
1,. =e %a+ also refer to the su#%ission %ade #+ the learned Attorne+ 6eneral that, in
6o3ern%ent ser3ice, an e%plo+ee cannot %a*e an+ application for chan'e in his date of
#irth after t)o +ears. >n analo'+, such rule should also #e follo)ed in 7udiciar+, )hich
other)ise )ould lead to serious co%plications, and open a pandora:s #o0. $i%ilarl+,
authenticit+ of date of #irth recorded in the docu%ents cannot #e challen'ed #elatedl+,
speciall+ #e+ond the a#o3e%entioned period.
13. >n the #asis of docu%ents )hich ha3e #een produced #+ the &e'istrar of this Court,
speciall+ the &esolution of the $+ndicate of the Bni3ersit+ of $indh in 195,, copies of the
docu%ents on )hich reliance has #een placed #+ the petitioner ha3e no si'nificance and
are of no conse/uence. ?here is also a dou#t a#out the authenticit+ of the docu%ents
produced #+ the petitioner )hich are alle'ed to #e copies of record of a pri3ate school in
2ndia.
=e find no su#stance in this Constitutional petition )hich is here#+ dis%issed.
8.E.A.F2-18F$ Petition dis%issed.