1. ' The powers to hear appeals against the order passed by Returning Officer relating to nomination papers have been delegated to the Members of Election Commission by Hon'ble Chief Election Commissioner of Pakistan by an order dated 1st January, 2003 which reads as under:-- "No, F-3(1)2003. / Cord.---In exercise of powers under section 13(5) of the Senate (Election) Act, 1975 (No,LI of 1975), the Chief Election Commissioner has been pleased to authorize Members, Election Commission to hear and decide the appeals filed against the orders of Returning Officers for the Senate Election, 2003 from the Province/area noted against each:--
(1) Mr. Justice Muhammad Ashraf Leghari, Sindh Province.
(2) Mr. Justice Nasim Sikandar, Punjab Province.
(3) Mr. JuMice Ahmed Khan Lashari, Balochistan Province.
(4) Mr. Justice Qazi Ehsanullah Qureshi, N.-W.F.P. And FATA." This appeal under section 13(5) read with subsection (6) of the Senate Act, 1975 (LI of 1975), is directed against the impugned order dated 24-1-2003, passed by the Returning Officer for Election of Senate, 2003 (Sindh), Karachi, whereby he has accepted the nomination paper of Mr. Asif Jatoi, the respondent No,l.
2. ' He filed nomination form for Senate Election (General Seat) on the ticket of Pakistan National Alliance. He produced a party ticket before the Returning Officer. He alongwith his nomination form produced his academic qualification letter issued by Director, School of Communication from University of Southern California. It was sent to (University Grants Commission) Higher Education Commission, Islamabad, for verification. By their letter dated 24th January, 2003, the Returning Officer after verification was informed that the University of Southern California is accredited University of USA.
3. 'Resultantly his form for contesting Senate Election was accepted vide order dated 24-1-2003, which is challenged through this appeal.
4. ' It is contended by the appellant that the respondent No,1 has not cleared his graduation as no such certificate has been produced by him. He has simply filed a letter from Director School of Communication, which does not fulfil the requirements of section 11, subsection 2(e). He further submitted that since he has not fulfilled the requirements of law and has failed to produce the degree of graduation, he is not eligible to contest the Election of Senate.
5. ' Mr. Agha Faisal learned counsel appearing for respondent No,1 submitted that the Election Appeal under section 13(5) is not maintainable as the appeal under that provision would lie against the rejection of nomination form and not acceptance. It is further argued that required fee of Rs,2,000 for presenting the election petition has not been paid by the appellant. He has referred to certain provisions for presenting appeals and submitted that the instant appeal is not preferred under the said provisions, therefore, this appeal cannot be maintained. Mr. Agha Faisal argued that appellant has not been prejudiced, therefore, he has no locus standi to file an appeal. He has produced Official Academic Transcript of University of Southern California, which shows the list of subjects,' which the respondent had cleared during his academic years. He submitted that the letter produced by respondent No,1 is the certificate and as such the respondent No,1 has qualified for the contest of Senate Election. He referred to clause (e) of subsection (2) of section 11 of Conduct of.
6. General Election Order, 2002, the Senate (Election) Act, 1975 (No,LI of 1975) and argued that the certificate is not necessarily to be produced but mere statement in this regard is sufficient for the proof of degree as provided by the aforesaid provisions. This appeal has not been addressed in the name of Chief Election Commissioner of Pakistan and therefore, the same is not validly presented.
7. He has placed reliance upon the unreported cases of Ejaz Ahmed. Shaffi v. Federation of Pakistan and others C.P. No,1615 of 2002; Zafarullah Khan Domki v. Saleem Jan Khan Mazari and others C.P. S. No 1658 of 2002; Syed Ali Bux Shah v. The Election Tribunal and others C.P. No,1626 of 2002; Abubakar Shekhani v. The Election Tribunal and others C.P. No,1673 of 2002 and reported case of Ghulam Akbar Lasi and others v. Returning Officer for NA-270 Awaran-cum-Lasbella at Uthal and another PLD 2003 Quetta 1 and Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145.
8. ' I had issued notice to learned D.A.-G. For assistance. Mr. S. Zaki Ahmed learned D.A.-G. Has argued that the letter submitted by the respondent No,1 cannot be termed as degree of B.A. He further stated that it is mere an intimation.
9. ' I have heard learned counsel for the parties at length and perused the material available on the record.
10. ' It is the requirement of law that candidate for the Senate should not be qualified to be elected unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized equivalent by the University Grants Commission under the University Grants Commission Act, 1974. For convenience sake section 8-A, Conduct of General Election Order, 2002 is reproduced hereinbelow:-- "Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974) (or any other law for the time being in force)."
11. ' The arguments that a simple statement by the candidate for the educational qualification is sufficient to fulfil the requirement of law and no certificate is required to be produced, has no force as the educational qualification'of candidate is the prerequisite condition for contesting the Senate Election. Learned counsel for respondent No,1 relying upon clause (e) of subsection (2) of section 11, argued that a simple statement is sufficient for which he has relied upon letter issued by Director, School of Communication University of Southern California. Perusal of material available on the record shows that copy of this letter was sent to Higher Education Commission which was replied by the Commission vide letter No,8-64/HEC/A&B/2003/104 dated January, 24, 2003 which reads as under:-- "Mr. Asif Jatoi, B.A. In Communication, University of Southern California is an accredited University of USA.. However, the status of the degree cannot be authenticated in absence of degree and by simple letter intimating completion of requirements."
12. ' A bare reading of this letter shows that status of degree cannot be authenticated through a letter in absence of degree. I would like to B reproduce the contents of aforesaid letter issued by Director, -School of Communication which reads as under:-- "This letter is to confirm that Asif Jatoi has completed the requirements of his B.A. Degree in Communication from the University of Southern California. If you have any questions, you may contact me at 1-213-740-3949. The diploma will be awarded after the normal processing time of approximately 6 months."
13. ' This letter postulates that respondent No,1 has completed the requirements for his B.A. Degree in Communication. And the Diploma will be awarded after formal processing within time of approximately six months. This letter nowhere mentions that the respondent No,1 has cleared his graduation and is possessing degree of bachelor in any subject. During the course of arguments the learned counsel for respondent No,1 was given offer to produce at least the letter from the concerned University to the effect that the respondent No,1 has cleared his graduation and the certificate in this regard would be issued to him within due course of time but the learned counsel did not accede to that offer and stated that it will not be possible for the respondent in this span of time.
14. ' Since this matter has been entertained by me under section 13, subsection (a) of said Act, I find that the respondent No,1 is not possessing the degree of B.A. As required under the law and is disqualified under Article 8-A of the Conduct of General Elections Order, 2002 to contest the Senate election. The case-law cited at the Bar has no bearing and relevance to the facts and circumstances of the instant case.
15. ' In the cited cases, these points involved in the instant case have neither been discussed nor resolved but the petitioners were given chance to contest the election and genuineness of certificate can be challenged at any subsequent stage but in the instant case, the certificate is not even produced.
16. I would therefore, set aside the order dated 24-1-2003 passed by Returning Officer whereby he accepted the form of Mr. Asif Jatoi respondent No,1 for contesting the general seat of Senate and reject his form. The list of validly nominated candidates shall be revised accordingly.