The Respondents Nos. 4 and 5 contested the election to the seats of Nazim and Naib Nazim in U.C.
No. 78, Tehsil Jatoi, District Muzaffargarh, and were declared returned. Pursuant to order dated 1.9.2005 passed in W.P. No. 5252/05, the matter was referred to the learned Chief Election Commissioner. Notices were issued to the said respondents. The Respondent No. 4 put in appearance on 4.10.2005. He took the plea that he has obtained a Sanad from a Madrasa. He prayed for adjournment in order to enable him to obtain an equivalence certificate. The case was adjourned to 11.11.2005 with a direction to file an equivalence certificate within one month. On 11.11.2005 the equivalence certificate was not filed. However, he filed a certificate issued from Shah Abdul Latif University, Khairpur, dated 25.1.2005 stating that the said Sanad was equivalent to B.A.
(Pass) Par-I for the purpose of seeking admission to M.A. (Previous), Arabic,' Islamic Culture. The learned Member again issued directions for filing of an equivalence. certificate. Instead of complying with the said order, the Respondent No. 4 produced an original Secondary School Certificate showing that he has passed Matriculation Examination in Annual, 2002. The evidence was produced by the opposite party to show that the said certificate purported to have been issued by the Board of Intermediate & Secondary Education, Sukkur, Sindh, was not genuine. The learned member was also informed that in the earlier election, he had relied upon a Matriculation Certificate issued by the Board of Intermediate & Secondary Education, Multan, which was cancelled on 27.10.2001 on the ground of using unfair means. The learned member found that the said respondent is not possessed of the requisite qualifications. Consequently, the election to both the seats was declared to be void and fresh elections were ordered vide order dated 12.12.2005 (Annex: `A').
2. On 14.2.2006 the Respondents Nos. 4 and 5 filed nomination papers for contesting the said bye- elections. The learned Returning Officer was apprised of the said order . of the learned member of the Election Commission. The nomination papers were rejected on 20.2.2006. The Respondents Nos.
4 and 5 filed an appeal which was heard by Respondent No. 1 who proceeded to allow the same on 22.2.2006. He held that the said Respondent No. 4 has passed the B.A. Examination (Part-II) held in the month of September, 2005, whereas the basic qualification is only Matric.
3. Learned counsel for the petitioners contend that the Respondent No. 1 having not been duly appointed as a District Returning Officer had no jurisdiction to entertain and decide the appeal and consequently the impugned order is without lawful authority. It is further contended that the basic certificate being not equivalent to Matric or any higher degree. the Respondent No. 4 is not possessed of the requisite educational qualification to contest the election to the said seat.
Learned counsel for the contesting respondents, on the other hand, contends that the Respondent No. 4 has obtained a Sanad Faragh issued by Madrasa Al-Quran, Shikarpur, which is affiliated with Shah Abdul Latif University, Khairpur and the said University recognized the said Sanad equal to B.A.
(Pass) Part-II for the purpose of seeking admission in M.A. (Previous). The said University is a chartered University by Higher Education Commission (HEC). The said HEC vide letter dated 8.12.1991 issued a direction that holder of the said Sanad will be required to qualify in additional subjects at B.A. level from a University alongwith the subjects of Pakistan Studies and the Islamic Studies. The Respondent No. 4 appeared in the said B.A. Examination held in September, 2005 and as per result declared in February, 2006, he has passed the B.A. Examination and a degree has been awarded to him by the said University at Khairpur.
4. I have gone through the copies of the several documents placed on record by both the parties.
Now vide notification dated 16.2.2006 the learned Chief Election Commissioner for Pakistan appointed District and Sessions Judge, Muzaffargarh, as District Returning Officer and as appellate authority against decisions of Returning Officers accepting or rejecting the nomination papers.
Now the impugned order itself narrates that the District and Sessions Judge, Muzaffargarh, is on leave and the Respondent No. 1 is deciding the matter. To may mind, the Respondent No. 1 had no jurisdiction to decide the said appeal having not been appointed by the Chief Election Commissioner for the said purpose.
5. Now I have already referred to the material contents of the order dated 12.12.2005 of my learned brother Nasim Sikandar J. acting as a Member, Election Commission, whereby the election of the said respondent was declared to be void and a re-election was ordered on the precise ground that the Respondent No. 4 was not possessed of the requisite qualifications.
Now the entire basis' of the structure sought to be raised in the said contentions of the learned counsel for the contesting respondents is the Idocument Annex: R/1 to the written statement filed by them. It is Sanad-ul-BFaragh purporting to have been issued by "Madrasa Al-Quranul Aarabia Bahar-ul-Aloom, Shikarpur, Sindh, Pakistan". According to the date mentioned in the document with reference to the lunar calendar it was issued somewhere in September, 2004. Now in para-12 of the judgment in the case of Sanaullah khan and others v. District Returning Officer, Mianwali and others (P.L.D. 2005 SC 858), with reference to an earlier judgment in the case of Maulana Abdullah v. Returning Officer and others (2003 S.C.M.R. 195), a list of the Deeni Madaris approved by the University Grants Commission (now Higher Education Commissioner) has been given. I may further note here that a detailed text of notification dated 25.7.2002 issued by the Election Commission of Pakistan stand reproduced in Para-5 of the judgment delivered by my learned brother Muhammad Jehangir Arashad J. in the case of Khawaja Ghulam Rasool Kureja and others v. Returning Officer and others (2006 YLR 138). The list is the same. The said "Madrasa Al-Quranul Aarabia Bahar-ul- Aloom, Shikarpur, Sindh, Pakistan" does not find any mention in the said list of the Madaris approved by the said Commission.
6. Now it is being stated by the learned counsel for the respondents that as per directions contained in the letter dated 8.12.1991 of UGC he appeared in the B.A. Examination in September, 2005 and was declared passed in the same by the University at Khairpur. The said document is Annexure R/4 to the written statement. It narrates that the Sanad "Shadatul-Almiya Fil Uloomia Arabia Wal Islamia" is recognized as equivalent to M.A. Arabic/Islamic Studies for the purpose of teaching Arabic/Islamic Studies in Colleges/Universities and for perusing higher studies in Arabic/Islamic Studies. The said contention of the learned counsel looses sight of the fact that according to the said University at Kharipur, the Sanad (Annex: `R/2) is equivalent to BA: (Pass)
Part-II. Going by the contention of the learned counsel, a degree of M.A., ought to have been awarded to his client upon his said achievement. So far as the result statements Annexes: "R/6" and "R/7" certifying that the said certifying that the said Respondent No. 4 has passed the B.A. (Pass) part-II (Oriental Group) Annual Examination is concerned, the same would be of no help to the said respondents. The reason being that the very basis of the said exercise undertaken by the said University and the said respondent stands knocked out as the Sanad itself has not been issued by any Madrasa approved by 'the UGC or HEC. Once the said Sanad is found to be invalid, there in no question of a person passing B.A. Examination regarding whom it has been held as a fact that he is not a matriculate.
7. The writ petition accordingly is allowed and the impugned order dated 22.2.2006 of the Respondent No. 1 accepting the nomination papers of Respondents Nos. 4 and 5 is set aside being without lawful authority and void. No orders as to costs.
8. A copy of this judgment be immediately sent to the Secretary, Election Commission of Pakistan, Islamabad, as also the District Returning Officer, Muzaffargarh.