' The petitioner has called in question the election of respondent No,1 from the Provincial Assembly Constituency 121, Sialkot-1 held on 10-10-2002. He was notified as returned candidate on 20-10- 2002. The only ground urged in this petition is that respondent No,1 was disqualified on the ground that he was not a graduate and the certificate of Ashworth College of Georgia, U.S.A., could not be termed as equivalent to a B.A. Degree. It is contended that nomination papers to the said constituency were to be filed from 18-8-2002 to 23-8-2002 respondent No,1 applied to the University Grants Commission (U.G.C.) (now the Higher Education Commission) on 23-8-2002, claiming equivalence of the degree of "Associate of Science in Business Management" from Ashworth College U.S.A. And on the same day, certificate of equivalence was issued, that mere issuance of equivalence certificate did not qualify respondent No,1 to contest the election unless a thorough inquiry was conducted by the U.G.C. In para. 9 of this petition it was averred that respondent No,1 had committed fraud and forgery and had fabricated a false certificate. The allegation as repeated in ground (ii) and ground (iii). It was further averred, that respondent No,1 was not a sagacious, righteous or Ameen and was also disqualified on the said ground. The petition was contested by respondent No,1, a written statement was submitted in which a number of preliminary objections were taken and the allegations in the writ petition were controverted.
2. On the basis of the pleadings of the parties, the following issues were framed:--
(i) Whether the provisions of section 55 of the Representation of the People Act, 1976 have not been complied with by the petitioner, if so, to what effect? OPR
(ii) Whether this Tribunal has no jurisdiction to go into the validity of equivalence certificate issued by the University Grants Commission in favour of respondent No,1? OPR
(iii) Whether the petitioner has not complied with the provisions of section 54. If so, to what effect?
OPR
(iv) What is the effect of non-submission of the affidavits or the witnesses and the list of witnesses sought, to be examined along with the Election Petition? OP Parties
(v) Whether respondent No,1 was not qualified to contest the election from Constituency No,PP-121 Sialkot-1? OPP
(vi) Whether the certificate of equivalence issued in favour of respondent No,1 by the University Grants Commission is illegal? OPP
(vii) Whether the petitioner has no cause of action to maintain this Election Petition? OPR
(viii) Relief.
3. The parties produced oral and documentary evidence in support of their respective pleas. On behalf of the petitioner, two officials from the Higher Education Commission were examined as P.Ws.1 and 2 while the petitioner appeared as his own witness as P.W.3. Respondent No,1 appeared as his own witness as R.W.1 and placed on record documents Exhs.R.1 to R.11.
4. Issue No,1.--- The objection in the written statement was that the schedule, and Annexure filed with the election petition were not verified as required by section 55 of the Representation of People Act (No,LXXXV), 1976, (hereinafter referred to as the Act). However, neither the petitioner is relying on any document filed along with the election petition nor any document placed on record is in the nature of additional/supplementary information on facts. Therefore, the provision of section 55(3), in so far as it requires verification of every schedule and annex. Is not attracted.
5. I, however, noticed that the petition has although been verified, it has been attested by an Oath Commissioner and the election petition is also accompanied with a separate affidavit, attested by the Oath Commissioner yet the verification is not in accordance with the provisions of Order VI of Rule 15 of the Code of Civil Procedure as required by section 55(3) of the Act.
6. The learned counsel for the petitioner, however, contended that since this objection has not specifically been taken in the written statement, this Court, is cannot suo motu examine the said question. The reply of the learned counsel for respondent No,1 was that it was a question of law and, therefore, could be considered by this Court. He also relied on section 63 of the Act to contend that the aforesaid provision was attracted if provisions of section 54 or 55 of the Act were not complied with.
7. I had the occasion to examine the issue in E.P. No,11 of 2002 and a number of election petitions decided on 8-1-2004. Rule 15 of Order 6 of the Code of Civil Procedure requires that the person verifying shall specify by reference to the numbered paragraphs of the pleadings what he verified of his Own knowledge and what he verified upon information D received and believed to be true.
The verification in the said manner is not a mere formality because verification of the contents of the petition on the basis of knowledge and on the basis of belief may have different consequences.
These were noted in Alam Zaib Khan v. Muhammad Nawaz Khan and 2 others 1998 CLC 83. Thus, verification of this election petition is not in accordance with the provisions of Rule 15 of Order VI of the Code of Civil Procedure. The provision of section 55(3) E has the effect of making rule 15 of Order VI of the Code of Civil Procedure mandatory although it is not as in the scheme of Code of Civil Procedure. The Honourable Supreme Court of Pakistan in the case of Iqbal Zafar Jhagra v.
Khalil-ur-Rehman and 4 others 2000 SCM R 250 has already held that verification of an election petition in accordance with the requirement of rule 15 of Order VI of the Code of Civil Procedure is mandatory. The Punjab Election Tribunal, in Asif Nawaz Fatyana v. Walayat Shah 2003 CLC 1896 also took the same view. After through examination of the issue the conclusion reached by IF me in E.P.
No,111 of 2002 was that a mandatory provision must be fulfilled exactly.
8. As far as the objection of the learned counsel for the petition is concerned, the question being, a pure question of law, not requiring any investigation into fact, could be considered even if the objection was not specifically taken in the written statement by respondent No,1 G Further the explicit command of section 63 of the Act requires dismissal of an election petition if the provisions of sections 54 and 55 have not been complied with. Accordingly, this issue is answered against the petitioner.
Issue No,2
9. The contention of the learned counsel for respondent No,1 is that since the U.G.C. Had declared the degree of respondent No,1 as equivalent to a bachelor degree from Pakistan, this Court could not question the said equivalence certificate. Reliance was placed on Articles 3 and 8A of the Conduct of General Election Order 2002 (Chief Executive's Order No,7 of 2002). According to Article 3, the provisions of the said order shall have effect notwithstanding anything contained in the Constitution or in any other law for the time being in force. Section 8-A provides that "a person shall mit be qualified to be elected or chosen 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". In fact, Article 8-A was inserted in the said order through Chief Executive Order of 2002 on 24-6-2002 and clause (CC) prescribing for the said, disqualification was inserted in section 99 of the Act through an amendment made by Ordinance XXXVI of 2002 on 31-7-2000. Neither the C.E.O.'s Order No,7 nor the Act expressly or by necessary implication, excludes the jurisdiction of this Tribunal to examine the validity of the equivalence certificate. Therefore, notwithstanding the provisions of the C.E.O's. Order No,7 of 2002 the question whether a returned candidate was disqualified because he was not a graduate possessing a bachelor, or a degree recognized as equivalent by the U.G.C. Is open to examination by this Tribunal particularly in view of Article 225 of the Constitution, according to which,, election of respondent No,1 could not be challenged except by way of this election petition. If the argument of the learned counsel for respondent No,1 is accepted it would mean that even if the equivalence certificate was issued on the basis of a forged document or by an incompetent functionary of the U.G.C. Or without any basis whatsoever, it will be sacrosanct. Therefore, the contention of the learned counsel for respondent No,1 is repelled, the issue is answered against respondent No,1 and it is held that this Tribunal is competent to get into the question of legality and validity or otherwise of the equivalence certificate granted by the U.G.C.
Issue No,3
10. The objection of the learned counsel for respondent No,1 is based on section 54(b) of the Act, which inter alia, provides that, the petitioner shall serve personally or by registered post on each candidate a copy of the petition. To discharge the burden of this issue, respondent No,1, examined Rana Muhammad Arshad Khan, Advocate as R.W.9. The notice Exh.R.9 was put to him which states that Ch. Muhammad Saboor son of Muhammad Haziq candidate from PP-121 Sialkot-1, is in the process of filing election petition against the Notification dated 20-10-2002. He affirmed that the said notice bore, his signatures. On a question by this Tribunal, the witness stated that after Exh.K.9, he did not address any notice to anyone. On a question in cross-examination he explained that the expression "process of filing" used in Exh.R.9 meant that the petition was being filed. The notice Ex.R.9 does not show that with the said notice, the election petition was filed and copy thereof was inter alia served personally or by registered post on respondent No,1 there is no rebuttal to this evidence. Even the petitioner, who appeared as P.W.3, did not claim in his statement that the copy of the election petition was served on respondent No,1 as required by section 54(b) of the Act. On being questioned, the petitioner stated that he did not remember if he had got issued a notice through Rana Muhammad Arshad Khan, Advocate. He rather pleaded that it was not in his knowledge whether he had got issued a notice of filing of this election petition to respondent No, 1.
It may also be observed that mere issuance of a notice as not otherwise sufficient, the copy of the petition was required to be served on respondent No,1 either personally or through registered post.
According to section 63 of the Act, non-compliance, inter alia, of the provisions of section 54 entails dismissal of an election petition. Since section 63 expressly provides for a penal consequence, the provision has to be construed as mandatory. In case of a mandatory provision, this Tribunal has no option but to enforce it. While deciding, E.P. No,111 of 2002, one of the judgments noted was M. Karu Nanthi v. H.V. Honda AIR 1983 SC 558 was noted. In the said case, the copy of the election petition supplied to the rival candidate was not accompanied with the copy of a fancy banner on which the petitioner was relying. The Madras High Court had condoned the lapse but the judgment of the Madras High Court was set aside by the Supreme Court with the observation that non- Compliance of a mandatory provision could not be condoned.
' Accordingly, this issue is decided against the petitioner.
Issue No,4
11. With the election petition, neither affidavits of the witnesses were filed nor the list of official witnesses was submitted. However, on C.M. No,1 of 2003 of the petitioner, this Tribunal allowed filing of list of official witnesses vide order dated 7-1-2003. Initially only the Record Keeper of the U.G.C.
Was required to be summoned. However, with C.M. No,3 of 2003 three other official witnesses were sought to be summoned. This application was partly allowed to the extent of examination of Mr. Muhammad Javed Khan, under whose Signatures the equivalence certificate was issued and the Superintendent Incharge of the Record of the Higher Education Commission. This was vide order dated 20-5-2003 of this Tribunal. The objection of the learned counsel for respondent No,l was based on the Notification dated 16-3-1985 of the learned Election of Pakistan (published in the Gazette on 17-3-1985) which requires submission of the affidavits of the witnesses and the list of witnesses sought to be examined, with the petition. According to the learned counsel for respondent No,1, the provisions of the said Notification were mandatory and, therefore, this petition was liable to be dismissed even on this ground. The contention of the learned counsel for the petitioner was that since no consequence has been prescribed either by the aforesaid Notification or by the Act, it was only directory and this Tribunal by virtue of the provisions contained, in 64 of the Act had all the powers of a Civil Court.
12. This issue was also examined at length by me while deciding E.P. No,1-11 of 2002 and others and the view taken was that, the provisions of the aforesaid Notification were directory. The issue, is accordingly, decided.
Issues Nos.5 and 6
13. Since both the issues are interconnected, these are being disposed of together. In support of this issue, Abdul Qadoos, Education Officer of the Higher Education Commission was examined as P.
W.1. He explained that the U.G.C. Had been replaced by Higher Education Commission by Ordinance No,LIII of 2002, and claimed that he was the official concerned with the equivalence of foreign degrees. He stated that for the purpose, there was an Equivalence Committee. He explained that the first step on receipt of an application for equivalence is to consult the relevant directory and in this case the directory titled "Accredited Institutions of Post Secondary Education Programme" published from U.S.A. Was consulted. At page 99 of the said directory, the Ashworth College is an institution accredited in the U.S.A. He admitted that this directory only indicates the accredited institutions in U.S.A. But does not identify the degree awarded by them. On the application of respondent No,1, made on 23-8-2002, for equivalence of his degree of "Associate of Science in Business Management", a certificate of equivalence was issued on 23-8-2002 and the basis thereof was the decision taken in the 42nd meeting of the Equivalence Committee held on 3-4- 1999 (Ex.R.3). He admitted that the matter was not placed before the Equivalence Committee because the decision of the said Committee was already there. Being questioned, in cross- examination, this witness stated that along with the applications, respondent No,1 had also submitted all relevant documents in support of his plea for equivalence and they were 26 in number which are available on the record. On being further questioned, he stated that a number of other applications were received by the Commission in which equivalence certificate were issued on the same day. Also that after having issued the equivalence certificate, the claim of the petitioner to have studied at the said college was verified through Pakistan Embassy and a confirmation was received vide letter dated 22-7-2003 (Exh.R.4). This witness also produced letter dated 17-6-2003 from Embassy of Pakistan addressed to P.W.2, (Exh.R.6), according to which the foreign qualification of respondent No,1 was verified by Deen of Degree Programme, John Gravers of National American Dakota. However, vide Exh.R.5, a correction was sought (Ashworth College instead of Dakota) which was made vide letter dated 22-7-2003 of the Embassy of Pakistan (Exh.R.4).
14. Muhammad Javed Khan, Director Accreditation, Higher Education Commission, was examined as P.W.2. He testified to the equivalence certificate Exh.R.1. He denied that Exhs.R.2 to 6 were supplied by respondent No,1 after issuance of equivalence certificate. He admitted that respondent No,1 had not supplied any certificate from any institution in Pakistan to have cleaved F.A. Examination. He volunteered that American Institutions have their own system of issuance of B.A. Degree. He further stated that P.W.1 was the custodian of the record while the case of equivalence was dealt with by him. He admitted that before issuing the equivalence certificate, he did not address any communication to Ashworth College. Further, that the testimonial of respondent No,1 i,e, the degree was got verified from the said University. On being questioned by the learned counsel for respondent No,1, this witness stated that the Commission does not issue any equivalence certificate in relation to Matric and F.A. Examination which is issued by the Inter Board Committee of Chairman Ministry of Education. As far as equivalence of foreign degree is concerned, there was no requirement of the High Education of foreign degree is concerned, there was no requirement of the Higher Education Commission that the candidate must have passed the Intermediate Examination as well. He explained that most of the equivalence certificates were issued on the same day on which they were applied for and it was under the instructions of the Election Commission of Pakistan Exh.R.7 and Exh.R.8.
15. The petitioner appeared as his own witness as P.W.3. The learned counsel for respondent No,1 objected to his examination on the ground that his affidavit was not filed along with the election petition. The decision of the objection was deferred at the time of Tribunal hearing of this petition.
Since he has been examined and cross-examined, the objection of the learned counsel for respondent No,1 is overruled because by virtue of section 64 read with para. 6 of the Notification dated 16-3-1985 this Tribunal could examine a witness even if his affidavit was not filed with the petition.
16. P.W.3 stated that respondent No,1 got education upto Matric from Qumi High School and had passed the Matriculation Examination as a private candidate, got admission in Murray College and remained on the rolls of the College from 1971-1973. He appeared in the Intermediate Examination of the Board of Secondary Education, Lahore under Roll No,22317 but he could not pass the Intermediate Examination, had never passed the B.A. Examination and, therefore, he was not qualified to contest the election. He further stated that respondent No,1 did not possess any graduation degree from any foreign University. When questioned, he stated that he had not seen the nomination papers and the accompanying documents filed by respondent No,
1. On being further questioned he stated that he did not know whether certificate Exh.R.2 was or was not issued by the Authorities of the Ashworth College.
17. Respondent No,1 appeared as his own witness as R.W.2 and produced on record true copies of the degree of the Ashworth College duly verified by the Consular Attache, Consulate-General of Pakistan in Newyork as Exh.R.10. He also produced Exh.R.11, the certificate attached 19-8-2002 from the Consulate-General of Pakistan, according to which the contents of the degree issued by Ashworth College in favour of respondent No,1, had been verified and found correct and that the Ashworth College is the accredited to the Department of Education, City of Georgia. The original of Exhs.R.10 and 11 were shown in the Court, the copies, Exhs.R.10 and 11, were compared with the originals and were found to be correct. On being questioned he admitted that he could not qualify the F.A. Examination. On being further questioned, he stated that the course of said degree comprised four semesters, the maximum period allowed to clear the four semester was four years but no maximum time was prescribed. He further stated that it was only after qualifying the test that he was allowed to take the twenty papers prescribed for four semesters. He also claimed that since 1983, he was living in U.S.A. Where he had a house and an office and his children were studying there. Further, that with the application for equivalence necessary documents were submitted. He stated that his result was announced on 15-8-2002 by the Ashworth College.
18. It may be noted here that the learned counsel for the petitioner stated that he does not challenges that genuineness of the documents being relied upon, but will make submissions as to the effect of these documents.
19. The learned counsel for the petitioner contended that the requirement for contesting the election was a Graduate having a bachelor degree and Exh.R.2 does not come upon the said test.
He was critical for date of issuance of Exh.R.2 i,e, against 15-8-2002, which according to the learned counsel, was the date of the result. He also contended that the equivalence certificate was issued by the Commission on the same day i,e, 23-8-2002 on which application was made. He also contended that as per his own showing, respondent No,1 had not qualified even F.A. Examination from any Institution in Pakistan. He contended that the decisions dated 3-4-1999 (Exh.R.3), did not declare such a degree as possessed by respondent No,1 as equivalent to a bachelor degree and, therefore, the certificate was issued without the matter being placed before the Equivalence Committee. He also referred to the statement of P. W.1. According to which the directory which was consulted while issuing the equivalence certificate only identified the Institutions and not the degree. He referred the statement of P.W.1, according to which on verification, it was found that respondent No,1 had been studying in the said Institution, although it was not even claimed by respondent No,l. He pointed out that Exh.R.2 does not either show the registration number or the Roll Number of respondent No,
1. According to him the degrees of Ashworth College was of a subordinate nature and would not be equivalent to a bachelor degree. Referring to Exh.R.11, he submitted that the certificate from the Consulate-General of Pakistan did not say that it was equivalent to a bachelor degree. He also referred to a Calendar of the University of the Punjab (it is not relevant for this case). He obtained through the help of the Internet "Student Guide on Associate and Bachelor's Degree". From this material he sought to argue that for bachelor degree four years full time study was required and, therefore, the degree of respondent No,1 could not be said to be equivalent to B.A. Degree in Pakistan. In support of his submission reliance was placed on Abdul Sattar Lalika v. Ch. Sajjad Ahmed and another 2003 MLD 469 and Raja Muhammad Nasir v.
Mahmood Shaukat Bhatti and 4 others PLD 2003 Lah.
213.
20. The learned counsel for respondent No,1 submits that according to Article 8-A of the Chief Executive Order No,7, of 2002 and section 99(CC) of the Act, requirement to contest election is that a candidate should be a Graduate with bachelor degree or any degree recognized as equivalent by the U.G.C. And in this case, on the basis of the documents submitted with the application, the U.G.C. Had rightly issued the equivalence certificate. He explained that date of application and the date of equivalence in this case was the same but it was done in all the cases of equivalence under direction of the Election Commission of Pakistan. The object being not to hamper the process of the election. He next contended that the equivalence certificate issued by U.G.C. Was based on relevant material and sufficiency of the said material will not be open to examination by this Tribunal. However, according to him these ate sufficient materials on record of this petition, although as stated by P.W.1, as many as 26 documents were submitted by respondent No,1 with his application. He submits that the petitioner had qualified the twenty prescribed papers for four semesters and this was nott minimum time prescribed. He explained that the statement of P.W.1 to the effect that it was verified that respondent No,1 has studied in the said College was not material because he was not the dealing official the U.G.C. He explained that respondent No,1 was allowed to take the examination for the said degree after a qualifying test under the scheme of distant learning in which actual study in the Institution is not required. He referred to the minutes of the meeting of the Equivalence Committee, Exh.R.3, to contend that an Associate Degree, from U.S.A.
Was recognized by as equivalent to a bachelor degree. He further submitted that the equivalence granted by the U.G.C. Is to be seen in the context of the election and for no other purpose. He also submitted that even the Asnad of Deeni Madaris, were declared as 'equivalent to M.A. Although the persons holding the said "Asnad" had never passed B.A. Examination from any Institution of Pakistan. He further contended that the petition was grounded on fraud and fabrication which plea was given up.
21. The judgments cited by the learned counsel for the petitioner have been examined. In the case of Muhammad Nasir (supra) the degree had not been verified by the concerned foreign University.
In the case of Abdul Sattar Lalika, the nomination papers of the candidate were rejected. His appeal was accepted with the observation that merely because the U.G.C. Had not recognized the foreign degree of the candidate, he could not be ousted to contest the election, if he was a graduate from a foreign University. The rule laid down in this judgment is against the contention of the learned counsel for the petitioner.
22. The degree possessed by respondent No,1, recites:-- "In testimony whereby the above graduate has fulfilled all conditions and requirements inherent in the degree."
' Exh.R.4, letter of Pakistan Embassy, addressed to P.W.2, stated that respondent No,1 had successfully completed requirement for the Associate of Science in Business Management Degree from Ashworth College, Norcross, Georgia. Therefore, Exh.R.1, the equivalence certificate, has the backing of the said verification, while the degree (Exhs.R.2 and R.10) describes respondent No,1 as a graduate but not further that it was a bachelor degree in the system in which it was awarded.
Therefore, certification of U.G.C. Of its equivalence as a bachelor degree was necessary.
23. However, the following facts and circumstances brought on the record cast doubt on the veracity of Exh.R.1, the equivalence certificate issued by The U.G.C.:--
(i) The certificate Exh.R.1 was issued by P.W.2, without verifying the documents submitted by respondent No, 1.
(ii) Neither before nor after issuance of the equivalence certificate, the matter was placed before the Equivalence Committee of the U.G.C., and it is, therefore, doubtful whether Exh.R.1 issued by P.W.2 could be said to be the decision of the U.G.C.
(iii) Certificate, Exh.R.1, does not disclose its basis.
(iv) P.W.1, stated grant for equivalence in favour of respondent No,1, on the basis of the decision of the Equivalence Committee, dated 3-4-1999 Exh.R.3. This decision neither referred to the Ashworth College, nor the degrees possessed by the three applicants, whose applications for equivalence were considered in 42nd meeting of the Equivalence Committee held on 3-4-1999. In the case of first applicant, equivalence of her M.B.A. Degree from Heriot Walt University Scotland was considered and the decision deferred pending confirmation of relevant documents. In the second case, the Associate degree obtained after 14 years of education was declared as equivalent to a bachelor degree. In the third case, the applicant was found to have studied upto 13 years and his Associate Degree was not recognized as equivalent to bachelor degree. Thus, the said decision dated 4-3-1999 was not applicable.
(v) Issuance of the equivalence certificate on the date of application was, as claimed by P.W.2, under instructions from the learned Chief Election Commissioner Exhs.R.7 and R.8 were relied upon Exh.R.7 is dated 31-8-2002. It cannot, therefore, the basis of the equivalence certificate issued in favour of respondent No,1 on 23-8-2002. Exh.R.8 is letter dated 18-7-2002 of the learned Election Commission, addressed to the Chairman U.G.C. In which the learned Election Commission had requested the U.G.C. To communicate to it a list containing the names of degrees recognized as equivalent to a bachelor degree under the University Grants Commission Act, 1974 (XXIII of 1974).
The learned Election Commission, never instructed the U.G.C. To issue equivalence certificates without verification or not to place the matter before the Equivalence Committee.
(vi) According to P.W.1, the duration of the programme for the degree possessed by respondent No,1 was four years. Respondent No,1, while appearing as his own witness, claimed that the 4 years degree course comprised four semesters, he had cleared all the 20 papers in one go, and the degree was issued on the same day i,e, 15-8-2002, on which the result was declared in support of his total claim (clearing 20 paper in one attempt), no supporting material was produced by him, although he claimed having submitted a number of documents to the U.G.C.
(vii) The rules regarding admission and to appear in the examination. For the degree in question were not placed on the record.
24. Therefore, I am of the view that since decision of Issues Nos.5 and 6 is not necessary in this case, and sufficient material has not been produced before this Tribunal, it will not be appropriate to foreclose the issue. May be an occasion arises in future, to consider and decide the question on the basis of adequate material. Issues Nos.5 and 6 are, therefore, left undecided.
Issue No,7
24. The petitioner has the cause of action to maintain the petition.
Relief In view of my findings on Issues Nos.1 and 3, this election petition is dismissed.
' By order of the Chief Election Commissioner.