IFTIKHAR MUHAMMAD CHAUDHRY, This petition seeks leave to appeal against the judgment, dated 26-9-2005 of the Lahore High Court, Rawalpindi Bench, whereby writ petition filed by petitioner against the order, dated 19-9-2005 passed by District Returning Officer/Appellate Authority has been dismissed.
2. Precisely stating facts of the case, relevant for disposal of the instant petition, are that petitioner's nomination papers for election to the office of District Nazim, Chakwal, were accepted by the Returning Officer vide order dated 16-9-2005 overruling the objections, including that of respondent No,3, that the petitioner is not qualified to contest election by virtue of the provision contained in section 152(1)(e) of the Punjab Local Government Ordinance, 2001 as he is not a Matriculate. Relevant para. Therefrom is reproduced:-- "During entire arguments learned counsel for objector did not state a single word that if Matriculation Certificate is a forged document and their entire attack was on the procedure which candidate adopted so as to get duplicate copy of Matriculation Certificate, in which controversy this Authority cannot enter. According to original duplicate certificate produced before me, candidate had passed his Matriculation examination in the year 1939 from Punjab University, Lahore. If there is any error like date of issuance about this certificate, that can be better explained by University and not candidate. There is no material by any means to show that the certificate is bogus or that the candidate never passedMatric Examination. Mr. Abdul Majid Malik earlier remained a member of National Assembly and also Federal Minister. He was retired as Lt.-General from Pakistan Army, so all these facts are so strong circumstance in his favor on the basis of which genuineness of his certificate cannot be called in question."
3. Being dissatisfied from the above order, respondent No,3, Chaudhry Aurangzeb Khan, who had filed written objections before the Returning Officer, preferred an appeal before the District Returning Officer/Appellate Authority who accepted the same vide order, dated 19-9-2005 as a result whereof nomination papers filed by the petitioner were rejected.
4. The petitioner approached the High Court for redressal of his grievance by invoking its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan but without any success, hence the instant petition.
5. Messrs Abdul Hafeez Pirzada and Syed Iftikhar Hussain Gillani, Senior Advocates Supreme Court appearing for the petitioner contended that the official Gazette produced by the Controller of the University of Punjab before the High Court established that the petitioner had passed Matric examination under Roll No,12912 in the year 1939. Therefore, in presence of the said document the learned High Court may not have gone into factual controversy dilating upon the questions which were not relevant at all at the stage when the nomination papers were either to be accepted or rejected by conducting a summary inquiry in terms of Rule 14(3) of the Punjab Local Government Elections Rules, 2005. It was emphasized that the petitioner is a retired Lt.-General from Pakistan Army and when this controversy was ignited the ISPR had to clarify through a press statement that the petitioner's testimonials had duly been verified at the time of his entry into Army service. The certificate issued by the Punjab University on 20-9-2005 and extract from the service record of the petitioner maintained by the army were strenuously relied upon. They maintained that such material was sufficient to prima facie establish that the petitioner possessed the requisite qualification to contest the election.
6. The learned Advocate-General, Punjab, who appeared on behalf of Pakistan Election Commission contended that the duplicate Matriculation certificate issued by the University of Punjab was not admissible because the same was issued on 14-8-2005 which was a gazetted holiday. He further stated that no evidence is available on record to establish that the petitioner had been studying in Government High School, Chakwal and had passed the Matriculation examination. Therefore, merely on the basis of secondary evidence which was produced by the petitioner, the High Court has rightly held that the petitioner is not a Matriculate. He further stated that as far as the Gazette notification is concerned, it does not contain the parentage of the petitioner, therefore, the same is not admissible and the High Court has rightly rejected the same.
7. Mr. Maqbool Ellahi Malik, learned Senior Advocate Supreme Court, who appeared on behalf of respondent No,3, when called upon to argue, stated that he is not ready because he has been engaged today. Learned Attorney-General was called upon to assist the Court in respect of admissibility or otherwise of the documents maintained by the Punjab University and other institutions. He was of the opinion that since disputed questions of fact were involved, the High Court may have refrained from entering into the controversy at length and should have left the matter for decision by the Election Tribunal after the polls. According to him, in view of the Gazette notification it could be presumed that the petitioner is a Matriculate. Therefore, he suggested that on setting aside the impugned judgment matter may be left to Election Tribunal if any person aggrieved approaches it.
8. We have heard the learned counsel for the parties and have also gone through the relevant documents particularly the extract of the Gazette maintained by the University of Punjab, Lahore, which is reproduced hereinbelow:-- Roll No.Reg. No, Examination Name of the candidate Father's name Marks Obtd./ Division Government High School Chakwal 12912 Matriculation 1939 Date of birth 7-11-1919 Abdul Majid son of Muhammad Abbas Ali487 Second Div.
It is to be noted that as far as the official Gazette is concerned it falls within the category of public document and its status as such in terms of Article 85 has to be accepted. Reliance in this behalf is placed on Bashir Ahmed Bhanbhan and another v. Shaukat Ali Rajpur and others PLD 2004 SC 570.
9. Copious references were made to various provisions of the Qanun-e-Shahadat Order, 1984 (No,10 of 1984) in the impugned judgment to condemn the duplicate certificate issued by the Punjab University. However, the impugned judgment omitted to notice Article 92 of Order No,10 of 1984 which is reproduced hereunder:-- "92. Presumption as to genuineness of documents kept under any law.--- The Court shall presume the genuineness of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody."
A Gazette is one of the documents covered by the said Article and it is enough if it is before the Court even if not formally tendered in evidence. The question of its evidentiary value came up for consideration before a Division Bench of Lahore High Court in Bawa Sarup Singh v. The Crown AIR 1925 Lah.
299. The learned Bench made the following observations:-- "Under the provisions of section 81 of the Indian Evidence Act the genuineness of this Gazette must be presumed. Mr. Puri was driven to arguing that the Gazette is not evidence merely because it was not formally tendered at the trial. It is clear, however, that it was produced before the lower Appellate Court, and even it is shown that this document was not formally tendered in evidence it is now before us and we must accept it as proof that the Shiromani Gurdwara Parbandhak Committee is an unlawful association." (Underlined to supply emphasis).
10. Therefore, once the Gazette was produced before the High Court, the learned Judge should have raised a presumption under section 92 of Order No,10 of 1984. He, thus, failed to exercise jurisdiction vesting in him. The omission of the parentage from the Gazette should not have operated to the prejudice of the petitioner at the stage of scrutiny of nomination papers. It, at worst, gave rise to a suspicion, which was not enough to rebut the presumption under Article 92 of Order No,10 of 1984. Scrutiny of nomination papers is a quasi-judicial function and the decision of the concerned functionaries cannot possibly be based on suspicion alone. The following observations of this Court in Samar Pervaiz v. Board of Intermediate and Secondary Education, Lahore and another PLD 1971 SC 838 illustrate the principle:- "It is true that domestic Tribunal like a University or a Secondary Board of Education are free from the fetters and the formalities of a judicial trial, and while these can consistently with the demands of justice, be ignored it does not, by any means, follow that such domestic forums while dealing with valuable rights and privileges of an individual, can snatch them away on conjunctural grounds, even though such grounds may ostensibly appear to be very plausible but without any valid proof of their tangibility. However, morally convinced a Judge may feel as to the truth of a particular fact unless there is legal proof of its existence, he cannot take it as proved. Conjectures and suspicion cannot take the place of proof. A Tribunal's decision must rest not on suspicion but upon legal grounds established by legal evidence."(underlining is ours)
11. Thus, on having seen the official Gazette, the High Court may not have declined relief to the petitioner merely on the basis of the procedure under which a duplicate Matriculation Certificate was issued to the petitioner. Therefore, in presence of the Gazette extract reproduced hereinabove it is held that as far as the petitioner is concerned he is qualified to contest election for the office of the District Nazim, Chakwal in terms of section 152(1)(e) of the Punjab Government Local Government Ordinance, 2001. Resultantly, impugned judgments, dated 26-9-2005 as well as order, dated 19-9-2005 passed by District Returning Officer are set aside leaving an aggrieved person from the election result to approach the Election Tribunal, inter alia, raising the objection as to qualification of the petitioner in accordance with law. Election Commission of Pakistan is hereby directed to include the name of petitioner in the list of contesting candidates for the office of District Nazim Chakwal and make all necessary arrangements so that he may participate in the election scheduled to be held on 6-10-2005. Parties are left to bear their own costs.
12. Petition is converted into appeal and allowed.