' Haroon Akhtar Khan, the election petitioner, through the filing of the instant election petition, has called in question notification dated 20-10-2002, issued by the Election Commission of Pakistan, whereby Sheikh Amjad Aziz, respondent No,1 (hereinafter referred to as the' respondent) was declared as returned candidate from Constituency PP-156, Lahore XX, with the further prayer that the said elections to the extent of respondent No,1, be quashed and declared Void and the petitioner be declared as duly elected M.P.A. From the said Constituency.
2. Briefly stated the facts culminating to the filing of the present election petition are that the petitioner along with the respondents contested the General Elections, held on 10-10-2002, for the seat of Punjab Provincial Assembly from. Constituency PP-156, Lahore XX. According to the consolidation statement of the results (Exh.P.14), the respondent secured 11716 votes, while 10711 votes went to the share of the petitioner. Consequent thereto, the respondent was declared as returned candidate from the said constituency and the requisite notification was issued by the Election Commission of Pakistan on 20-10-2002 thereby declaring about the success of- the respondent.
' Discontented with the said results, the election petitioner filed the election petition under section 52 of the Representation of People Act, 1976 (hereinafter referred to as Act) before the learned Chief Election Commissioner, which was entrusted to this Tribunal for trial and disposal in accordance with law.
3. The Election petitioner has challenged the election of the respondent, mainly on the grounds, as discernible from the contents of the election petition, that although the respondent was neither a graduate nor he possessed by Bachelor degree, yet his nomination papers were unlawfully accepted by the Returning Officer and that the said respondent has deliberately fabricated and forged B.Sc. "pass result intimation". It has further been asserted that the respondent has not even passed his Intermediate Examination.
4. All the respondents were summoned but only respondents Nos.1, 4 and 5 entered appearance.
The respondents Nos.2, 3 and 6 to 10 remained absent throughout, despite publication in two daily newspapers, and thus, they were proceeded ex parte vide order dated 20-2-2003. Only respondents Nos.1, 4 and 5 resisted the election petition through filing their separate written replies.
5. The elected candidate, the respondent, in his written reply, raised certain preliminary objections and controverted the allegations made in the petition, inter alia, pleading that the election petitioner had filed various applications to different authorities, however, Board of Secondary Education as well as Board of Technical Education came to the conclusion that the respondent appeared in Diploma Examination and was declared successful. It was further asserted that the result of the respondent, regarding his graduation, had already been announced by the University, therefore, the same cannot be called in question in the election petition, that too after the lapse of three years. According to the respondent, as is evident from para.2 of his written reply, the respondent passed his graduation in the year 1989, under Roll No,3997 having Registration No,87-Z-26954, and passed in the first attempt opting for the subjects of Statistics, Math "A" and Math "B" securing 609/800 marks" ... The respondent No,4, in his written statement, has also prayed for the cancellation of the notification and holding of re-elections. The respondent No,5, in his written statement, has admitted the contents of the election petition as correct and prayed for the holding of fresh elections.
6. This Tribunal, out of the divergent pleadings of the parties, on 28-2-2003, framed the following issues:-- Issues
(1) Whether the election petition is not maintainable due to non-compliance of provisions of section 52(2) of the Representation of People Act, 1976? OPR
(2) Whether the petition suffers from mis-joinder of parties, if so, its effect? OPR
(3) Whether on the date of filing of the nomination papers for election for Constituency PP-156 (Lahore XX), the respondent No,1 was not possessed of a bachelor degree in terms of Article 8-A of the Conduct of General Elections Order, 2002? OPP
(4) Whether the election of respondent No,1, is liable to be declared as null and void and the petitioner is entitled to be declared as returned candidate? OPP
(5) Whether facts and circumstances of the case warrant and justify the re-election, under the law? OPR-4.
(6) Relief."
' The application (C.M. No,5 of 2003), filed by the respondent was allowed and this Tribunal, on 23-1- 2004, framed the following additional issues:-- "(5-A) Whether the petition is violative of section 55(3) of the Representation of the People Act, 1976, since schedules to the election petition are neither signed nor verified in the manner laid down in C.P.C.? OPR?
7. In support of his case and in order to discharge the onus of the issues, the petitioner produced the following documentary evidence:--
(1) Report and parawise comments on behalf of Punjab University in Writ Petition No,19453 of 2002.
(Exh.P.1).
(2) Signature of Registrar Punjab University. (Exh.P.1/1).
(3) Letter from Assistant Controller (Certificates) to the respondent No,l. (Exh.P.2).
(4) Admission form of respondent No,1 for Bachelor of Science, 2nd Annual Examination, 1989.
(Exh.P.3).
(5) Result Gazette, Bachelor of Science 2nd Annual Examination, 1989 (Exh.P.4).
(6) Application form for obtaining degree. (Exh.P.5).
(7) Letter from the petitioner to the Controller/Additional Controller (Exams) University of the Punjab, Lahore (Exh.P.6).
(8) Report of Forensic Science Laboratory, Punjab, Lahore. (Exh.P.7).
(9) Result Statement of Intermediate Examination (Science Group), Annual, 1984. (Exh. P. 8).
(10) Result Statement of Intermediate Examination (Science Group) Supplementary, 1984. (Exh.P.9).
(11) Result Statement of the Secondary School Examination Spring, 1982. (Exh.P.10).
(12) Result Register of C. Com. Supplementary, 1985, (Punjab Board of Technical Education). Exh.P.11).
(13) Result Register of D. Com. Annual, 1987, (Punjab Board of Technical Education). (Exh. P.12).
(14) Photo copies of Nomination Papers of respondent No, 1. (Exh. P. 13).
(15) Consolidated statement of result of count of PP-156, Lahore. (Exh . P.14).
(16) Signature of Assistant Controller (Exams.-I). (Exh.P.W.4-1).
(17) Signature of Assistant Controller (Examination). (Exh.P.W.4-2).
' So far as the oral evidence of the petitioner is concerned, the same comprises of the following witnesses:--
(1) Col. (Rtd.) Masudul Haq, Registrar, University of the Punjab, Lahore. (P.W. 1).
(2) Dr. A. Basit, legal Adviser, University of the Punjab. (P.W.2).
(3) Makhdoom Ashraf, Assistant, R.K.J.II, Branch Lahore High Court, Lahore. (P.W.3).
(4) Abdul Ghaffar, Deputy Treasurer (Retd.). (P.W.4).
(5) Ishfaq Khalid, Superintendent, Record, Matric Branch, Board of Intermediate. (P. W . 5).
(6) Muhammad Ayub, Deputy Secretary, Punjab Board of Technical Education. (P. W.6).
(7) Abdul Rauf, Ahimad, to the Court of Mian Khadim Hussain, Returning Officer, PP-156. (P.W.7).
(8) Election Petitioner. (P.W.8).
' The respondent has produced the following documents:--
(1) Application for verification of pass Result Intimation. (Exh.R.1).
(2) Copy of Pass Result Intimation. (Exh.R.2).
(3) Copy of National Identity Card of the respondent. (Exh.R.3).
(4) Photo copy of F.I.R. (Mark "A").
' The respondent did not produce any oral evidence, except got recorded his own statement.
8. I have heard the learned counsel for the parties at length and perused the available record. My findings on all the issues are as under:-- Issue No,1 "Whether the election petition is not maintainable due to non-compliance of the provisions of section 52(2) of the Representation of the People Act, 1976? OPR"
' The onus to prove this issue was on the respondent. The learned counsel for the respondent did not press this issue, hence, the same is decided against the said respondent.
9. Issue No,2. "Whether the petition suffer from mis-joinder of parties, if so, its effect? OPR"
(i) The learned counsel for the respondent has submitted that as the University of the Punjab, its Registrar and the Controller of Examination have not been made parties in the present election petition, therefore, the same is not only liable to be dismissed, but all the documents produced by the Registrar, and Punjab University, cannot be relied upon. His further submission is that the non- impleadment of University Authorities renders the petition as incompetent, therefore, no relief can be granted to the election petitioner. Learned counsel for the petitioner has refuted the aforenoted contentions.
(ii) Section 54 of the Representation of the People Act, 1976 envisages that all the contesting candidates and any other candidate, against whom any allegation of any corrupt or illegal practice is made, shall be joined as respondents to the election petition. It flows from the bare reading of the said provision of law that the contesting candidates and any other candidate, within the category of clause (b) of section 54, are the necessary parties to be impleaded in the election petition. I have examined the election petition and find that the petitioner has impleaded all the candidates, who contested the election from the Constituency PP-156, Lahore-XX. The present election petition is in consonance with the provisions of section 54 of the Act, 1976, as noted above, thus, the same does not suffer from non-joinder of necessary parties. Additionally, I find that the University Authorities are neither necessary nor proper party in the election petition, as no relief has been claimed against the University Authorities. As regards the contention of the learned counsel with respect to the documents, produced by the Registrar, Punjab University, the same has little substance. The Registrar of the Punjab University was summoned through this Tribunal by the Election petitioner, as one of his witnesses, he was examined as P.W.1, who produced the original record, and certain documents were admitted in evidence and exhibited, to which no objection was raised by the learned counsel for the respondent. Even according to the stance of the said respondent, he is also relying upon the documents, so produced by P. W.1.
(iii) In view whereof, the contentions raised by the learned counsel in this regard are misconceived and unfounded, hence Issue No,2 is decided against the respondent.
10. Issue No,3. "Whether on the date of filing of the nomination papers for election for Constituency PP-156 (Lahore XX), the respondent No,1 was not possessed of a bachelor degree in terms of Article 8-A of the Conduct of General Elections Order, 2002? OPP"
(i) Issue in hand is a most crucial issue, on which, the parties to the election petition are really at variance. Stance of the election petitioner, as highlighted in the election petition, is that the returned candidate is not a graduate and on the day of filing of the nomination papers, he was not possessed of Bachelor Degree. The defence of the returned candidate is that he is holder of Bachelor Degree having passed B.Sc. Examination in the year 1989, II-Annual, held on 2-4-1990, however, no degree was issued to him and the University Authorities only issued and sent pass result intimation to him, thereby intimating that he has qualified graduation examination and on the basis of the said intimation, he filed his nomination papers, which were accepted by the Returning Officer and no objection was raised by the petitioner. He has further pleaded that he applied for obtaining the original degree which has not yet been supplied by the University Authorities.
(ii) Onus of this issue was on the election petitioner, who in order to discharge the onus of said issue, tendered certain documents in evidence, which were admitted in evidence and exhibited as Exh.P.1 to Exh.P.14 without any objection, raised by the respondents. In addition to the said documents, the petitioner produced oral evidence, which comprises of P.W.1 to P.W.B. In rebuttal the respondent No,1 produced only three documents i,e, Exh.R.3 to Exh.R.5, however, he did not produce any oral evidence and felt contended only after got recorded his own statement. (Note. Details of documentary and oral evidence produced by the parties have been given in para.7 of this judgment).
(iii) The learned counsel of the petitioner, while referring to the evidence on record, has submitted that the returned candidate, at the time of the filing of the nomination papers, did not possess the Bachelor Degree and that he was not a graduate to contest the E election to be chosen as M.P.A. He has further contended that in order to take B.Sc. Examination, a candidate must have studied, at intermediate level or C.Com. D.Com., the subjects of Maths and Statistics. In this context, he has referred to the statement of P.W.2. He has further submitted that Gazette Notification (Exh.P.4) is entirely based upon the result intimation card (Exh.R.2), which was forged by the respondent, as held by the Disciplinary Committee of Punjab University in its report (Exh.P.1). The learned counsel has added that in view of the evidence on record, it has been proved that the respondent neither sat in B.A. Or B.Sc. Examination nor possessed any graduation degree, more so when the respondent could not produce any evidence in rebuttal. Conversely, the learned counsel for the respondent, while referring and relying upon the Admission Form (Exh.P.3), Gazette Notification (Exh.P.4), pass result intimation (Exh.R.2) and application for obtaining graduation degree (Exh.P.5), has submitted that the respondent passed the graduation examination in the year 1989 and although no degree was issued by the University Authorities yet on the basis of the pass result intimation, it can be said and claimed that he was in possession of bachelor degree at the time of filing of the nomination papers. He has further submitted that the registration number is a basic document/requirement, after the issuance of registration number, a candidate cannot be debarred from appearing in the examination and when the registration number is available, then admission form is of no significance. He has added that it would not be safe to rely upon the statement of two ex officials of University after the lapse of 12 years. His further submission is that the issuance of result card is an administrative act after the completion of entire process of examination and that after the issuance of Gazette notification, all the earlier documents, loose their significance. The learned counsel for the respondent No,5 although has supported the case of the petitioner and prayed that the election of the respondent may be declared void, yet his submission is that the election petitioner may not be declared as a returned candidate, as there is no evidence on record to this effect, inasmuch as the petitioner has not stated in his examination- in-chief that he may be declared as returned candidate.
(iv) Exh.P.10 shows that the respondent No,1 passed matriculation examination in the year 1982 securing 345 marks. According to Exh.P.8 and Exh.P.9, the respondent failed in intermediate examination of Annual 1984 and supplementary 1984. P.W.5 has stated that according to the record of Board of Intermediate and Secondary Education, the respondent never passed intermediate examination. Additionally, the respondent in cross-examination has also deposed that he never passed F.Sc. Examination. In view whereof now the admitted position is that the respondent never passed Intermediate examination.
(v) According to Exh.P.11 the respondent passed C.Com. Examination in supplementary, 1985 held on 17-11-1985. Exh.P.12 shows that the respondent No,1 qualified D.Com. Examination Annual , 1987 held on 18-6-1987. The election petitioner could not produce any evidence in order to dislodge the veracity, accuracy and genuineness of Exh.P.10, Exh.P.11 and Exh.P.12, inasmuch as these documents were produced by the petitioner himself, which were admitted in evidence without any objection from the opposite party. As a matter of fact, the respondent is also banking upon all the afore- mentioned documents. In the above background it is proved beyond any shadow of doubt that the respondent passed examinations of matriculation, C.Com. And D.Com.
(vi) It could not be proved on record as to whether the diplomas of C.Com. And D.Com. Are equivalent to intermediate examination. No such document was produced in evidence by either of the parties in order to show that the diplomas of C.Com. And D.Com. Are equivalent to Intermediate Examination or vice versa. Learned counsel for the respondent has placed on record a certificate dated 9-9-2003, issued by the Punjab Board of Techn.
' Education thereby reproducing the decision of Committee of Intermediate Board Committee of Chairman, which is to the effect that "the course of C.Com. And D.Com. Offered by Punjab Board of Technical Education is equal to 11th and 12th class examination offered by Board of Intermediate and Secondary Education." To my mind, since the said certificate is not a part of the evidence, neither the same is admitted document, therefore, the same cannot' be considered while deciding the controversy in hand.
(vii) Admittedly, according to the stance of the respondent, he possesses Bachelor Degree, however, no graduation degree was issued to him despite the fact that he applied to the University Authorities for the issuance of B.Sc. Degree on 27-8-2002. Further admittedly at the time of filing nomination papers, for the seat of Provincial Assembly, he was only possessed of photo copy of pass intimation card, as the original of the said card was reportedly lost on the day of filing nomination papers. Undisputedly, at the time of filing of nomination papers, the respondent only produced photo copy of B.Sc. Result intimation card and no other document was submitted before the Returning Officer to show that the respondent is a graduate. This fact has frankly been conceded by the respondent in his cross ... Gazette notification, the respondent filed an application before University Authorities for getting B.A. Degree, but the same was not supplied to the petitioner even uptil now. Only on the basis of the photo copy of pass result intimation and the Gazette notification, it cannot be legitimately argued that on the day of filing of the nomination papers; the said respondent was possessed of a bachelor degree.
(viii) The petitioner in order to prove certain documents, summoned the official witnesses together with the relevant record, through the process of this Tribunal, who brought the original record and stated that these are true copies of the original record and thereupon the said documents were admitted in evidence and exhibited, that too without any objection from the respondent side P.W.1 is the Registrar of the Punjab University, who brought the original summoned record and, in his statement, he got exhibited six documents i,e, Exh.P.1. To Exh.P.6. This witness, in his examination-in- chief, elaborately stated that there are certain irregularities in the admission form submitted by the respondent; that the University Authorities did not issue any graduation degree to the respondent and that when the respondent applied for the graduation degree, the University Authorities made some queries, through letter, dated 4-11-2002, but the same was not replied to by the respondent.
Tenor of cross-examination on this witness shows that the respondent intends to prove that the University Authorities having properly maintained the record and its record, has no legal value. The respondent did not produce any evidence to demonstrate that he is in possession of bachelor degree. Strangely enough on the one hand, he is simultaneously relying upon the documents, produced by the petitioner, and admitted in evidence and on other hand trying to prove that the record produced by P.W.1 is not reliable and unbelievable. Additionally the respondent, on the basis of the admission form (Exh.P.3) Gazette notification (Exh.P.4) and pass result intimation (Exh.R.2) has agitated that he passed the examination of Bachelor of Sciences. In view whereof the cross- examination on this witness is of no avail to the respondent No,l.
(ix) In the above scenario the report and parawise comments submitted by the Punjab University (Exh.P.1), is of great significance. As noted above, all the documents, including Exh.P.1, were admitted in evidence and exhibited without any objection from the respondent side in the statement of different witnesses, who brought the original record in respect of those documents, thus, all the documents are deemed to be admitted documents between the parties. Exh.P.1 was proved in the statement of P.W.1 (the Registrar of the University of the Punjab), who appeared along with the original record and stated that he signed the report, which bears his signatures (Exh.P.1/1).
Specially said document, coupled with other admitted documents. Form No,66684 (Exh.P.3), before the University Authorities, to appear in B.Sc. 1989, 2nd Annual Examination. This admission form although was signed by the respondent, yet does not indicate the date on which it was either filled or submitted before the University Authorities except the Rubber Stamp of the Form Section of the University of the Punjab, which shows that said form was received in the Form Section on 28th of April, 1990. In the absence of any other date on the admission form, in the handwriting of the respondent or otherwise, the presumption, would be that the said form was submitted and received by the University Authorities on 28-4-1990. Prior to this, the said respondent had duly been registered as a student/candidate and Registration No,87-Z-26954 was issued to him. He appeared in the aforenoted examination and according to pass result intimation (Exh.R.2), he was declared successful in the first division obtaining 609/800 marks, gazette result (Exh.P.4) indicates that Sh. Amjad Aziz son of Abdul Aziz was declared pass in B.Sc. 2nd Annual Examination, 1989, having secured 609 marks. Admittedly no B.Sc. Degree was issued to the respondent. Thereafter, on 27-8-2002, the respondent filed an application (Exh.P.5) before the University Authorities, requesting therein that B.Sc. Degree may be issued to him, which application was registered with the University Authorities at No,11907-F. Letter dated 4-11-2002 (Exh.P.2) to the respondent, thereby requiring the respondent to furnish certain documents, which letter was never replied to by the respondent. In this regard, the statement of P.W. I can be referred, wherein he deposed that the University Authorities did not receive any letter from the respondent in response to Exh.P.2.
Additionally, the respondent has admitted in the cross-examination that he did not send any reply to the University Authorities to the letter dated 4-11-2002. It appears from the record and Exh.P.1 that pursuant to the receipt of the said application, for obtaining the B.Sc. Degree the University Authorities initiated some sort of inquiry, traced out the original admission form of respondent No,1 and inter alia, found that it was received by the University of the Punjab on 28-4-1990, while the duration of the 2nd Annual Examination, 1989 was from 2-4-1990 to 25-4-1990. According to Exh.P.1, Ex-employees of the University, whose signatures appeared on the Result Intimation Card, were summoned by the University Authorities and were shown the pass result intimation card. One of the said employees, namely, Abdul Ghaffar Khan, Deputy Treasurer (Rtd.) appeared as P.W.4 and recognized his signatures as Exh.P.W.4/1, however, he could not recognize his signatures on the photobopy of the pass result intimation card. The said witness admitted that, his specimen signatures were sent to the Forensic Science Laboratory for comparison. He further stated that the signatures appearing as Exh.P.W.4/2 does not look like to be his signatures. Signatures of these Ex- employees of the University were sent to Forensic Science Laboratory and the report was received by the University, which is Exh.P.7. It may be noted that the report of the Forensic Laboratory and the pass result intimation were admitted in evidence and exhibited as Exh.P.7 and Exh.R.2 with the concurrence of the learned counsel for the parties. Examiner of the questioned documents, in his report (Exh.P.7), has given the opinion that the signatures of Abdul Ghaffar Khan and Muhammad Habib (both University employees) do not appear to be identical with the previous written routine signatures and specimen English signatures. It would be advantageous to reproduce a portion of the said report, which reads as follows:-- "After detailed examination of the documents, the case mentioned above, it has revealed that the questioned and the routine documents bearing the signatures are Photostat. However, the questioned English signatures of Mr. Abdul Ghaffar Khan encircled and Marked as Q/1 and questioned signature of Muhammad Habib encircled marked as Exh.Q/2 present on the documents Annexure "A" do not appear to be identical with the previously written routine admitted English signatures (Photostat copies) and specimen English signatures of Mr. Abdul Ghaffar Khan and Muhammad Habib supplied, on documents detailed above."
After thorough inquiry, the University Authorities came to the conclusion that the pass result intimation is a fake document, on which the signatures of the two University employees were forged, and the Gazette notification has been fraudulently manipulated. It would be pertinent to mention here that the respondent did not produce any evidence in order to rebut the statement of P.W.1 or the other documents on record, specially, Exh.P.7, inasmuch as Exh.P.7 was admitted in evidence with the consent of the learned counsel of the respondent. As a result of the inquiry undertaken by the University Authorities, the conclusions arrived at by the University Authorities as discernible from Exh.P.1, are as follows:-- "(i) The pass result intimation card under Roll No,3997 purportedly issued on 25-8-1990 under the signatures of Assistant Controller, Examination Abdul Ghaffar and Checker Habib is a bogus document. It has never been issued by the Punjab University.
(ii) The relevant Gazette Notification of the Punjab University has been manipulated in a fraudulent manner. The beneficiary of the manipulation appears to be respondent Amjad Aziz.
(iii) Punjab University has found as a matter of fact that the placement of the Admission Form on the record of the Punjab University is a fraudulent act. This is a criminal offence."
(x) Now coming to the question as to whether a candidate, who did not pass in the subjects of Statistics and Mathematics in Intermediate Examination, can undertake B.Sc. Examination in those subjects. As noted above, admittedly the respondent never passed Intermediate Examination and on the basis of Diplomas in C.Com. And D.Com. He is claiming to be qualified to take B.Sc.
Examination: The respondent himself appeared as R.W.1. In his cross-examination, the respondent has admitted that "it is correct that I never passed F.Sc. Examination". It has also been held above that the respondent passed the said diploma examinations, which are proved from Exh.P.11 and Exh.P.12. The respondent, in his cross-examination, has admitted that he did not study Mathematics as a subject, however, Statistics was one of his subjects. Upon the examination of Exh.P.11 and Exh.P.12, I find that those documents do not indicate that the respondent studied or/and passed in the subjects of Mathematics and Statistics, while passing diploma examinations. In the University Calendar, after giving certain combination of subjects, it has been provided that a candidate shall not take up any subjects, which he did not study at Intermediate level. Relevant portion from the Calendar is reproduced below:-- Chapter I Bachelor of Science Examination (pass course).
' Statutes 1. (Every candidate shall be required to offer English language and (Islamiyat/Ethics and Pakistan Studies) as compulsory subjects carrying 100 marks each and any one of the following groups of subjects. Every subject in each of the groups shall carry 200 marks:--
(8) Statistics, Mathematics A Course and Mathematics B. Course...: ' Provided that except in the case of Zoology (Applied Psychology and Geology) (a candidate shall not take up any Science Subject unless he has taken the corresponding subject in the Intermediate Examination..."
(xi) Dr. Abdul Basit, the learned Legal Adviser of the University of the Punjab appeared as P.W.2 and stated that "If a candidate does not pass in the examination at the Intermediate level in Mathematics "A" and Mathematics "B" and Statistics, he cannot be permitted to appear in B.Sc.
Examination in the same subjects". It may be noted that P.W.2 was not cross-examined meaning thereby that under the law, his statement is deemed to be admitted by the other side.
(xii) In the above backdrop, I am of the view that as the respondent did not pass in the subjects of Mathematics "A" and K Mathematics "B" and Statistics, while passing diploma examinations, therefore, he was precluded to the B.A./B.Sc. Examination in those subjects. However, the result intimation card indicates that he passed in the subjects of Mathematics "A" and Mathematics "B" and Statistics. When he was not qualified to take the examination in those subjects, as held above, how he could be declared as passed in those subjects. That is one of the indicator to demonstrate that the result intimation card was manipulated, as held by the University Authorities, after thorough investigation, as discernible from Exh.P.I.
(xiii) Now coming to the Registration Number i,e, 87-Z-26954, allocated to the respondent by the University. The learned counsel for the respondent has laid much emphasis on the registration number to contend that after the issuance of registration number, a candidate cannot be stopped to appear in the examination, the registration number is a significant document and that in view of the registration number, admission form has no importance. To my mind, the registration number is proof of the fact that a certain candidate has been registered as a student with a specific University. The admission form is a separate document and has got its own importance. It is true that a person, who is not registered with the said University cannot file admission form for taking sertain examination in the said University, but it cannot be legitimately argued that a candidate who has been registered, is even precluded from filing the admission form.
(xiv) P.W.1 produced the admission form (Exh.P.3) in his statement by stating that "I have compared the photocopy of admission form dated 28-4-1990 with the original admission form of respondent No,1, which is marked as (Exh.P.3), "P.W.1 gave a specific date for filing the admission form. It is strange to note that although the respondent is relying upon the said admission form ... Disputed by him. Needless to mention that no question was put to P.W.1 about the date of the receipt of the admission form and the said witness was not cross-examined on this aspect of the case. By not cross-examining the said witness, regarding the date, under the law, that portion of the statement is deemed to be admitted, as such, the respondent has virtually accepted that admission form was submitted on 28-4-1990. If the date of the admission form-is taken as 28-4-1990, as held above, then the possibility of forging the said admission form cannot be excluded, as according to Exh.P.1, the Bachelor of Sciences 2nd Annual Examination, held in 1989 were concluded on 25-4- 1990. In view whereof it is not humanly possible that a person is said to have qualified an examination on the basis of the admission form, which was filed after the completion of the said examination. This fact further fortify that even the admission form was manipulated and forged.
(xv) So far as the plea regarding the loss of documents, including the original pass result intimation, as pleaded by the respondent, the same does not appeal to reasons. Although according to the respondent, he has lodged the F.I.R., thereby reporting about the loss of the documents, however, the respondent has not been able to prove the said F.I.R. In accordance with law, inasmuch as the same was not admitted in evidence and thus, was not exhibited. Although the said document was marked (Mark "A") yet it cannot be taken as document, properly proved and tendered in evidence, moreso when the petitioner has specifically denied the existence of said document. The respondent has not produced any evidence to show that he actually lost those documents except stating in his statement, but his solitary statement would be of no help to the respondent. I am of the view that the respondent has not been able to prove that he has lost those documents.
(xvi) The plea of the respondent No,1, that the record of the University is maintained only for three years, is not substantiated from any document on record. On the contrary, as noted above, P. W . 1 has brought the original record, produced the same before this Tribunal, compared those documents with the documents on record and stated on oath that they are copies of the original documents, which were admitted in evidence and exhibited without any objection from the other side. In view whereof, it cannot be legitimately argued that the record of the University is maintained only for three years.
(xvii) The learned counsel for the respondent has also raised the plea that after the issuance of Gazette notification, the previous documents lose their importance and significance. The said contention of the learned counsel has little substance. When it has been proved on record that the preceding documents were forged and fake, then the obvious result would be that the superstructure built on the said documents, would automatically fall to the ground and would be of no value. Additionally, the result notification, was issued with a note that "errors and omissions excepted". Furthermore, the result notification says that it is a notice only and does not create any right or privilege in favour of a candidate. Clause (2) of the notification is reproduced below:-- "(2) This Result Gazette (errors and omissions excepted) is issued as a notice only. The entries appearing in it do not confer any right or privilege independently on a candidate for the grant of Certificate/Degree which will be issued under the regulations in due course."
(xviii) The learned counsel for the respondent has also contended that it is not safe to rely upon the statement of two ex-officials of the Punjab University after the lapse of 12 years. Suffice it to say that their specimen signatures with the admitted signatures, were sent to Forensic Science Laboratory and examiner of questioned document has reported, in his report (Exh.P.7), about the forged signatures of these persons on pass result intimation. It is reiterated even at the cost of repetition that the said document was admitted in evidence and exhibited without any objection raised by the respondent, inasmuch as both the parties specifically stated before this Tribunal that they have no objection if Exh.P.7 and Exh.R.2 are admitted in evidence. It flows therefrom that the said document is an admitted document between the parties. After having admitting Exh.P.7 the respondent is precluded from taking the plea that the signatures of two Ex-officials of the University on the result intimation card (Exh.R.2) are genuine. Plea raised by the learned counsel is devoid of any force.
(xix) in the above perspective and in view of the findings, rendered hereinabove, the issue No,3 is decided in favour of the petitioner and it is held that on the date of filing of the nomination papers, the respondent was not possessed of Bachelor Degree.
11. Issue No,4. "Whether the election of respondent No,1, is liable to be declared as null and void and the petitioner is entitled to be declared as returned candidate? OPP"
' It has been held above, while giving findings on Issue No,3 that on the day of filing of nomination papers, the respondent was not a graduate inasmuch as he did not possess a Bachelor Degree. In view whereof under Article 8A of the Conduct of General Elections Order, 2002, the candidature of the respondent, to contest the General Elections for the seat of Provincial Assembly, suffers from inherent defect. Article 8(A) of the Conduct of General Elections Order, 2002, inter alia, provides that a person shall not be qualified to be elected or chosen a member of Parliament or a Provincial Assembly unless at least he is a graduate possessing a Bachelor Degree in any discipline etc. As the respondent was not possession the graduate degree, therefore, cold not be chosen as member of the Provincial Assembly. Furthermore, section 68 of the Representation of the People Act provides that the Tribunal shall declare the election of returned candidate as void if on the day of nomination, the returned candidate was disqualified from being elected as a member of the Provincial Assembly.
(ii) In the above backdrop, now the next question would be as to whether the election of the returned candidate is to be declared void, as provided under section 69 of the Act or the said election as a whole to be declared void, as envisaged under section 70 of the Act.
(iii) Firstly coming to section 70 of the Act. Perusal of the available record manifests that the petitioner did not plead that the respondent committed corrupt and illegal practices in the elections, but his case was that the respondent No,1 did not possess the graduation degree on the day of nomination. As discussed above, the result of the election has not been materially affected by the prevalence of corrupt and illegal practices, as it is not the case of either of the parties that they committed corrupt or illegal practices in the election. In view whereof clause (b) of section 70 has no applicability in the present case and thus, the same stands excluded.
' Now adverting to clause (a) of the said provision of law. As held above, while giving findings on issue No,3, that the returned candidate, even on the day of ... Secretary v. Javaid Hashmi and others PLD 1989 SC 396, relied upon by the learned counsel for the petitioner, can be referred.
(iv) Now turning to section 69 of the Act, which provides that if the Tribunal declares the election of returned candidate to be void then the petitioner or any other contesting candidate can be declared to be a duly elected, if it is so prayed by the petitioner or any of the respondents. In this backdrop, now the question arises as to whether after the declaration of the election of the returned candidate as void, the petitioner or any other contesting candidate can be declared to be elected within the scope of section 69 of the Act. I have examined the election petition and find that the election petitioner, in his prayer in the election petition, has requested that he be declared as duly election MPA, For ready reference a portion of the said prayer is reproduced below, which reads as follows:-- "It is, therefore, respectfully prayed that Notification bearing No,F.2(36)2002-Cord. Dated 20-10- 2002 issued under section 42(4)(3A) of the Representation of the People Act, 1976, showing the name of respondent Sheikh Amjad Aziz as returned candidate from PP-156 Lahore-XX published in Gazette of Pakistan, Extraordinary dated 20-10-2002 be cancelled/quashed, set aside to the extent of respondent Sheikh Amjad Aziz and declaration of his election as returned candidate be declared void and the petitioner be declared as duly elected MPA and name of the petitioner be ordered to be declared elected by Commission as duly elected/returned candidate from PP-156, Lahore-XX, Lahore."
On the other hand, the other contesting respondents have not even stated in their replies that they be declared as an elected/returned N candidate inasmuch as none of them has asserted that the election petitioner should not be declared as a returned candidate. The respondents, including the returned candidate, have neither alleged nor pleaded nor proved that the election petitioner has committed illegal or corrupt practices rendering him ineligible to be declared as returned candidate. Needless to add that no legal infirmity or disability has been urged to demonstrate that the petitioner cannot be declared as returned candidate.
(v) Furthermore, after the declaration of respondent No, l's election as void, the returned candidate cannot be allowed and he is not entitled to produce evidence to show that the election of the election petitioner would have been declared void, had he been the returned candidate on the simple ground that the returned candidate did not file any recrimination petition, as provided under section 66 of the Act. Non-filing of the recrimination petition by the returned candidate, coupled with the other factors, as noted above, establishes the entitlement of the election petitioner that he be declared as duly elected more so where such a declaration as noted above, is claimed by the election petitioner.
(vi) In this context, I have also examined the statements of the parties, recorded as P.W.8 and R.W.1.
Although the election petitioner has not in specific terms stated that he be declared as returned candidate, yet in his statement he has made reference to his Election petition by stating that "I have filed the election petition, which bears my signature. I have also signed the affidavit in support of the election petition". In his election petition, of course, he has prayed for his declaration, as returned candidate. The petitioner was not cross-examined on this aspect of the case, inasmuch as not even a single question was put to him. Even the respondent No,1, while appearing as R.W.1, did not state in his examination-in-chief that the petitioner is not entitled to be declared as returned candidate.
(vii) Further I find from the consolidation statement of the results (Exh.P.14) that the respondent got 11716 votes, while the election petitioner secured 10711 votes, thus, the election petitioners secured the second highest votes in the election. As the election of the person i,e, the respondent No,1, who secured the highest votes, has been declared to be void, therefore, in view of the afore-noted findings, next candidate, i,e, the petitioner, who got the second highest votes can be declared as returned candidate.
' In view of the above findings, issue No,4 is decided in favour of the Election petitioner and it is held that the election of the respondent is declared to be void and the petitioner is declared as Returned Candidate.
12. Issue No,5. Whether facts and circumstances of the case warrant and justify the re-election, under the law? OPR-4.
Burden to prove this issue was placed on the respondent No,4, who has 'failed to bring any oral or documentary evidence on record in order to show that the re-election should be ordered. Even the said respondent did not appear in the witnesses-box in order to support his reply and to face the cross-examination. The learned counsel for the respondent No,4 did not urge any lawful justification for the re-holding of the election especially in view of the findings given hereinbefore.
Needless to mention that it has been held above, while rendering findings on Issue No,4 that section 70 of the Act has no applicability in the present case; that the election of the returned candidate is declared void and that the petitioner is declared as returned candidate. In view whereof, it cannot be held that the facts and circumstances of the case justify the re-election. The respondent No,4 failed to discharge the onus of the said issue and remained unsuccessful to prove the same. In the said backdrop, issue is decided against the said respondent.
13. Issue No,5-A. Whether the petition is violative of section 55(3) of the Representation of the People Act, 1976, since schedules to the election petition are neither signed nor verified in the manner laid down in C.P.C.? OPR ' The learned counsel for the respondent has submitted that since the schedules/annexes to the election petition are neither signed nor verified in the manner laid down in the C.P.C., therefore, the election petition is hit by section 55(3) of the. Representation of the People Act, 1976. The learned counsel for the respondent, however did not raise any objection regarding the signing and verification of the election petition. While deciding C.M. No,5 of 2003, it has been noted that the learned counsel for the respondent has admitted that the election petition has properly and validly been signed and verified as provided under the law. The only question here is as to what would be the effect on the election petition, if the annexes/schedules to the election petition are not verified in accordance with the provisions of law. Admittedly, the documents attached to the election petition are neither verified nor attested by the Oath Commissioner. The said question was considered in the case reported as S.M. Ayyub v. Yousaf Shah PLD 1967 SC 486. The Honourable Supreme Court of Pakistan in the said case, has held that the election petition cannot be dismissed on account of non-signing and non- R verification of the schedules/annexes to the election petition. It would be appropriate to reproduce the relevant portion from the said judgment, Which reads as follows:-- "We are consequently disposed to hold that the Tribunal was right in finding that the failure of the petitioner to append his signature or the verification, required for schedules and annexures to the petition, was not fatal to the prosecution of the petition."
Being guided by the principle laid down in S.M. Ayyub's case (supra), which law declared was followed by the Honourable Supreme Court of Pakistan in the case of Engineer Zafar Iqbal Jhagra v.
Khalil-urRehman 2000 SCM R 250, I am of the view that 'the election petition cannot be dismissed only on account of the non-signing and non-verification of the schedules/annexes to the election petition. This additional issue is decided against the respondent.
In the above perspective, in view of the findings rendered and reasons given on the issues the present election petition is allowed and the notification dated 20-10-2002, issued by the Election Commission of Pakistan, thereby declaring Sh. Amjad Aziz, respondent No,1, as returned. Candidate from Constituency PP-,156 Lahore-XX, is set aside and cancelled. Resultantly the said election of the respondent No,1 is declared to be null and void and the election petitioner is declared as the elected/returned candidate from Constituency PP-156 Lahore-XX. No order as to costs.