The petitioner is a resident and voter of the constituency, PP281, Bahawalnagar (5), whereas, Respondents Nos, 1 and 5 are candidates for bye-election due to be held in the above constituency on 20.5.2006. The seat of the Provincial Assembly fell vacant on the demise of one, Ch. Tahir Mehmood who died in March, 2006.
2. Respondent No, 5 raised objection against Respondent No, l's nomination papers before the Returning Officer, on the ground that Respondent No, 1 was not a graduate, as he had submitted a fake degree. The Returning Officer rejected the objection and accepted nomination papers of Respondent No,
1. An appeal was filed by Respondent No, 5 before the Election Tribunal consisting of two Hon'ble Judges of this Court at Bahawalpur Bench. The appeal was also dismissed by the Hon'ble Tribunal.
3. The contention of the learned counsel for the petitioner is that the University has already declared Respondent No 1 in possession of a fake detailed marks certificate which was cancelled and withdrawn by the University. The certificate of the Al-Khair University AJK, signed by Registrar dated 13.4.2006 reads as under:-- On scrutiny of the record it has been found that Mr. Khasif Mahmood s/o Khalid Mahmood allegedly a student of BBA is not a bonafide student of this University. Thus the Detailed Marks Certificate No, 1053 issued to him on 6.4.2006 is not correct as he is not registered with the University. Therefore the Detailed Marks Certificate No, 1053 is cancelled and withdrawn."
It may be pointed out that earlier, at the time of submission of nomination papers, Respondent No, 1 had submitted a Provincial Certificate, on basis of which his nomination papers were accepted as valid. The said Provisional Certificate reads as under:-- This is to certify that Mr. Kashif Mahmood S/0 Khalid Mahmood (Reg. No, AUR (BA) 296-2000) has passed the Bachelor of Business Administration Examination of this University held in April, 2003.
The University has, accordingly, issued him DMC Bearing No, 1053. He will, however, be awarded BBA degree in due course of time."
4. The contention of the learned counsel for the petitioner is that since the University vide its letter dated April 13, 2006 withdrew and cancelled Detailed Marks Certificate No, 1053, the letter dated April 6, 2006 (Provisional Certificate) lost its efficacy, thus, petitioner is deemed disqualified and without required qualification ie. Degree of BBA. According to the learned counsel for the petitioner, for the same reason, Respondent No, 1 is not constitutionally and legally qualified to contest the impending bye-election of constituency PP281, Bahawalnagar (5).
5. Similar arguments addressed to the Hon'ble Tribunal failed to get approval of the Tribunal. The Hon'ble Tribunal expressed itself, precisely in the following terms:-- "Admittedly, two certificates have been brought on record by both the parties of the same University. The Registrar of the University does not deny either of them to have been issued.
According to both certificates the contention of the University is polls apart. At this stage when the nominations are only to be scrutinized summarily a detailed investigation of the genuineness, bonafide nature of the respondents' studentship with the University in the presence of two different certificates cannot be ascertained. In this view of the matter we deem it appropriate that this question may be resolved at the appropriate time after election through an election petition if any of the parties feels so required."
The examination of the above order demonstrate that presence of two conflicting certificates of Al- Khair University, Azad Kashmir, makes facts disputed and according to the Hon'ble Tribunal, this cannot be resolved under the Constitutional jurisdiction. As the election process is still at nomination papers stage, the nomination papers can only be scrutinized through a summary proceedings. Hence, the Hon'ble Tribunal held that the matter may be taken up before the Election Tribunal by filing an election petition, once the election process is over. Though the learned Election Tribunal did not refer to Article 225 of the Constitution, nevertheless, Article 225 also requires that such dispute can only be resolved by Election Tribunal. For convenience provisions of Article 225 are reproduced as follows:-- "No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e- Shoora (Parliament)."
The language of Article 225 is express and mandatory in nature. Expression "election" includes different stages of the election from filing nomination appears to the Notification of the election result, therefore, the present dispute is definitely covered by Article 225 of the Constitution. The Hon'ble Supreme Court of Pakistan held, "the conclusion of the Court is that all stages from start to conclusion of the election are part of the election. If any party has any grievance which may arise at any stage during the process of election should be agitated under Article 225 of the Constitution.
Other forums should not be approached at intermediate stage which may cause a delay in holding election, such interference by any other legal forum may also frustrate the objective of providing Article 225 under the Constitution." (Election Commission of Pakistan v. Javaid Hashmi, PLD 1989 SC 396).
6. The learned counsel for the petitioner has relied upon Ghulam Mustafa Jatoi v. Addl. Session Judge, etc., 1994 SCM R 1299. We are afraid that this judgment does not help the learned counsel for the petitioner. Before we point out the reason, it would be expedient and prudent to reproduce the relevant extract of the report which follows as under:-- "The upshot of the above discussion is that generally in an election process High Court cannot interfere with by invoking its constitutional jurisdiction in view of Article 225 of the Constitution.
However, this is subject to an exception that where no legal remedy is available to an aggrieved party during the process of election or after its completion, against an order of an election functionary which is patently illegal/without jurisdiction and the effect of which is to defranchise a candidate, he can press into service Constitutional jurisdiction of the High Court."
The facts of this case show that the petitioner or the Respondent No, 5 shall have legally remedy after the election, in form of election petition or writ petition in nature of quo-warranto, as the case may be, whereas, in event of acceptance of this writ petition, Respondent No, 1 would be deprived of his right to contest election, of course, subject to law. In addition to that, we also believe that if this writ petition is allowed, the purpose of providing provisions of Article 225 would be frustrated.
7. As a result of above discussion and reasons, order of the Hon'ble Election Tribunal is upheld and this Constitutional petition is dismissed. However, we also observed that the petitioner or Respondent No, 5 may avail the remedies provided under the law at an appropriate stage as hinted at above in the preceding para.