SAVED ZAHID HUSSAIN, J.--- In the election held on 10-10-2002 respondent No. 1 having secured 43113 votes from PP-121 Sialkot-1 was declared successful. The . petitioner who had obtained 19,744 votes assailed, his election primarily on the ground that he was not qualified to contest the election as he was not graduate, possessing bachelor's degree. After due trial, framing of issues and recording of evidence the petition was dismissed by a learned Tribunal of this Court vide judgment dated 16-72004 on issues of preliminary nature. Appeal filed thereagainst was, however, accepted by the Hon'ble Supreme Court of Pakistan on 19-10-2006, in view of the consensus of the parties as to setting aside of the judgment of the learned Tribunal and decision of the petition on merits. It is thus, that as a result of its entrustment to this Tribunal by the learned Chief Election Commissioner, Pakistan it has come up for hearing before this Tribunal.
2. The learned counsel for the petitioner has primarily laid stress that respondent No. 1 was not quialified to be elected as Member of the Assembly s he was not a graduate possessing bachelor's degree. The provisions of Article 8-A of the Conduct of General Elections Order, 2002 and Section 99(1)(cc) of the Representation of the People Act, 1976 are being invoked for this purpose. It has candidly been stated (and already so recorded by the erstwhile Tribunal) that he would not be pressing the plea about the genuineness of Ex. R-2, (the purported degree issued by Ashworth College, United States of America) but would emphasize that the same had no effect and cannot be treated as equivalent to bachelor's degree to confer the status of graduate upon respondent No. 1. Such alternative pleas according to him are permissible under the law in view of R. 9 of 0. VI, R.7 of 0. VII and R. 1(5) of 0. XIV of the Code of Civil Procedure, 1908. It is contended that the equivalence-certificate issued by a functionary of University Grants Commission on 23-8-2002 is without any basis and has no validity in law as the matter was never place before. The Equivalence Committee constituted under Section 13 of the University Grants Commission Act, 1974. According to him no individual could issue any such equivalence certificate as has been done in the instant case. Cites Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others (PLD 2003 Lahore 213) and Abdul Sattar Lalika v. Ch. Sajjad Ahmed and another (2003 MLD 459) in support of his contention that the Tribunal while trying and deciding the petition can go into the question of validity and legality of degree or equivalence certificate. According to him the Tribunal constituted under the law has the exclusive jurisdiction in all matters, relating to elections. Apart from this, it is vehemently contended that admittedly respondent No. 1 had failed in F.A. And has also failed to satisfy as to how he acquired the alleged degree from Ashworth College, USA. Reference has been made to Muhammad Rafiq Tarrar v. Justice Mukhtar AhmadJunejo, Acting Chief Election Commissioner of Pakistan and 6 others (PLD 1998 Lahore 461).
3. The learned counsel for the contesting respondent (respondent No. 1) has laid great emphasis on. The fact that though respondent No. 1 did not possess bachelor's degree from Pakistan, yet he had been conferred a degree of "ASSOCIATE OF SCIENCE IN BUSINESS MANAGEMENT" dated 15-8- 2002 by Ashworth College, United States of America. It is contended that such a degree had the legal efficacy, having been recognized by the University Grants Commission and the certificate of equivalence issued by the said Commission and the certificate of equivalence issued the said Commission. According to him such a certificate once issued is final, the validity whereof cannot be questioned nor gone into by the Tribunal who is creation of a special law. Reference in this context is being made to S. 99(1)(cc) of the Representation of the People Act, 1976 and Article 8-A of the Conduct of General Elections Order, 2002. Another aspect which is sought to be highlighted is that the petitioner is precluded from taking self-contradictory pleas inasmuch as firstly he pleaded that the degree passed into service by respondent No. 1 was fake, forged and bougus but later on he changed his stance and questioned the legality and validity of equivalence certificate issued by the University Grants Commission. It is contended that it was not an alternative plea but was a self- contradictory stance, not permissible in the judicial proceedings before a judicial forum. With reference to the statutory provisions of Article 8-A of the Conduct of General Elections Order, 2002 and S. 99(1)(cc) of the Representation of the People Act, 1976, it is contended that the case of respondent No. 1 falls within the clause "or any degree recognized as equivalent thereto 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." According to him phrase "or any degree recognized as equivalent" was of great relevance and importance. It is thus contended that since the statutory body viz. University Grants Commission has granted such a certificate of equivalence, the same cannot be disregarded by anyone including this Tribunal. The learned counsel endeavoured to draw distinction between the concept of judicial review and the jurisdiction of the Tribunal constituted under the statute. He has cited Akhlaq Hussain and others v. The Federation of Pakistan and others (1989 MLD 3548), Muhammad Sadiq and others v. University of Sindh and another (PLD '1996 Supreme Court 182), Maulana Abdullah v. Returning Officer and others (2003 S.C.M.R. 195) and Syed Abdul Latif Shah v Ali Muhammad Khan and others (2004 MLD 36).
4. At this stage, a brief survey of the legal position may be of use. Before the general elections were held in October, 2002, the Conduct of General *Elections Order, 2002 (Chief Executive's Order No. 7 of 2002) was promulgated. Article 8-A was inserted vide Chief Executive's Order No. 17 of 2002, dated 24-6-2002, lying down educational qualifications for the Members of Parliament and Provincial Assemblies. According to this "....... a person shall not be qualified to be elected or chosen as 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." A corresponding qualification was inserted in S. 99(1)(cc) of the Representation of the People Act, 1976.
5. As has been noted above, being a graduate possessing bachelor's degree or equivalent thereto is one of the qualification for being elected or chosen as member of the Assembly. It is a statutory requirement under the relevant laws i.e. S. 99(1)(cc) of the Representation of the People Act, 1976 and Article 8-A of the Conduct of General Elections Order, 2002. The election is a process, which ultimately culminates into the declaration of the result and assumption of office i.e. Member of the relevant House of Parliament/Assembly. Chapter-1 of Part VIII of the Constitution of the Islamic Republic of Pakistan, 1973 i.e. Articles 213 to 226 take care of the elections. Article ,225 lays down that:- "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- eShoora (Parliament)."
The Tribunal so envisaged by Article 225 is the one as is appointed by the Chief Election Commissioner, Pakistan under S. 57 of the Representation of the People Act, 1976. Chapter VII of the Act deals with election disputes of which S. 57 is one of the provisions. It is thus evident and obvious that all disputes relating and concerning the election are to be dealt with by the Election Tribunal while trying and hearing an election petition. Reference to the provisions of S. 68 of the Representation of the People Act, 1976 also strengthens such a view, according to which the Tribunal is empowered to declare the election of a returned candidate to be void, if it is satisfied that:--- "(a)
(b) "The returned candidate was not, on the nomination day, qualified for, or was-disqualified from, being elected as a member; or
(c) Since the every qualification of respondent No. 1 has been questioned through this election petition before the Tribunal, it is for the Tribunal to satisfy whether he was qualified or not from being elected as a Member. Thus such a power vests with the Tribunal beyond and doubt.
6. So far as the issue as to the correctness, legality or validity of a degree or equivalence certificate granted and issued by the University Grants Commission/Higher Education Commission is concerned, there remains no obscurity in view of the precedents of the Superior Courts that such an issue can be raised before and tried by the Tribunal when confronted with such an issue. Reference in this context may be made to Raja Muhammad Nasir v. Mahmood Shaukat Bhatti and 4 others (PLD 2003 Lahore 213), Abdul Sattar Lalika v. Ch. Sajjad Ahmad and. Another (2003 MLD 459), Maulana Abdullah v. Returning Officer and others (2003 S.C.M.R 195), Sanaullah Khan and others v. District Returning Officer, Mianwali and others (PLD 2005 S.C. 858) and Naqeeb Ullah Khan v. Malik lmran Khan and 6 others (PLD 2006 Peshawar 21j. It may be observed that introduction of educational qualification for Members of Parliament/Assemblies has already received approval of the Hon'ble Supreme Court of Pakistan in Pakistan Muslim League (Q) v. Chief Executive of Islamic Republic of Pakistan, etc. (PLD 2002 S.C.
994). Thus not only the Election Tribunal is obliged to decide such an issue when raised before it is to the candidate's qualification for contesting election, it also can try as to the legality and validity of the degree or equivalence granted by the University Grants Commission/Higher Education Commission.
7. The contention of the learned counsel for respondent No. 1 that the petitioner had taken inconsistent or self-contradictory position has not impressed me nor can be countenanced inasmuch as that there can be no bar for a. Part to abandon a plea and bank upon an alternative ground of plea. Before the restwhile Tribunal, the learned counsel for the petitioner had stated that "he does not challenge the genuineness of the documents being relied upon, but will make submissions as to the effect of these documents". Such a plea can by no means be termed as inconsistent or self-destructive and a party cannot be stopped or precluded to adopt such a course. In the present case the University Grants Commission, (which now stand replaced by Higher Education Commission by virtue of Ordinance LIII of 2002, dated 11-9-2002) had issued the equivalence certificate on 23-8-2002 (Ex. R-1), in favour of respondent No. 1 on his application of the same date without reference to the Equivalence Committee, which had its genesis in S. 13 of the University Grants Commission Act, 1974 and now S. 10(1)(0) of the Higher Education Commission Ordinance, 2002. In such peculiar circumstances the plea sought to be advanced by the learned counsel for the petitioner is well permissible.
8. After having disposed of pure legal aspects of the matter, it is now the stage to advert to the crucial controversy. The touchstone for weighing and appreciating the respective contentions of the learned counsel is the pleadings and the evidence in the case. Reference, therefore, may be made in particular to paragraphs Nos. 3, 8 and clause (i.e) of the grounds of the petition. The relevant portion and reply thereto is as follows:--- Contents of petition Reply
3. That it would be advantageous to note that under Section 99(1)(cc) read with Article 8-A of the Conduct of. General Elections Order, 2002, no candidate was eligible to contest the aforesaid election unless he was at least a Graduate possessed with a Bachelor's degree in any discipline or any degree recognized as equivalent by the University Grants Commission Act, 1974 (XXIII of 1974).
3. Correct. It is pointed out that the ' petitioner has himself accepted the proposition that University Grants Commission has the exclusive power to recognize the equivalence of a Foreign Degree with Graduation from an Educational Institution in Pakistan. This is an admission as to the exclusive role ascribable to a special forum under a special statute. As shall appear in sequel paragraphs, the legal effect of this admission is that the Certificate of Equivalence granted by his Commission attached with the Election Petition as Annex-D thereof has conclusive force.
8. The mere issuance of the equivalence certificate of the University Grants Commission does not qualify and person to contest the election unless it is proved that the same is issued after holding a thorough enquiry on the basis of any standard/principle being maintained for issuance of equivalence certificate by University Grants Commission, Islamabad which is not available on any record.
Issuance of equivalence certificate in connivance with the respondent No. 1 is illegal and renders the respondent No. 1 disqualified to contest the election. In this view of the matter the Notification dated 20-10-2002 is illegal and the same is8. Denied. Quite to the Contrary, The Stand 'of the petitioner is that the equivalence certificate in question is conclusive of the facts certified thereby insofar as it is a statutory body which is to be treated as a special forum. This Tribunal cannot substitute its findings for the certificate in question. On this basis, the para under reply is a sufficient ground for dismissal of the Election Petition itself as the Certificate. In quesiion has conclusive effect in relation to matters certified by it i.e. Equivalence of the degree possessed by the Answering Respondent with B.A.
Degree. having been issued without any lawful authority
(iii) That since respondent No. 1 does not possess the required qualification in view of Section 99{1) (cc) of the Representation of People Act, 1976 read with Article 8-A of the Conduct of General Election Orders, 2002, therefore, he was not eligible to contest the election in question. To better appreciate the point mooted in the petition Section 99(1) (cc) ibid is as under:- he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto 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."
The perusal of the afore-referred legal provision of law would manifestly indicate that the requisite qualification to become a candidate of the Provincial Assembly is Graduation which is a mandatory provision of law, therefore, by using bogus certificate like the certificates in question the respondent No. 1 was not eligible to contest the election held on 10-10-2002.
The subsequent proceedings declaring him to be a member of Provincial Assembly while notifying him as returned candidate are also illegal and having been undertaken without lawful authority.(iii) This inference is based on the assumption that the Answering Respondent is not qualified. The assumption itself is baseless.
Such controversial assertions/pleadings gave rise to several issues as were framed by the learned Tribunal then seized of the matter. At the present however, issues Nos. V and VI are relevant and are reproduced:--- "V. Whether respondent No. 1 was not qualified to contest the election from Constituency No. PP 121 - Sialkot-I? OPP.
VI. Whether the certificate of equivalence issued in favour of respondent No. 1 by the University Grant Commission is illegal? OPP."
The parties led evidence in support of their respective pleas.
9. The admitted position in the case is that. respondent No. 1 was not graduate possessing bachelor's degree from Pakistan. He however invoked and produced a degree dated 15-8-2002 (Ex. R-2) from Ashworth College, USA and applied for equivalence certificate to the University Grants Commission 23-8-2002. His application to that effect is not on the record, however, the letter issued by the University Grants Commission dated 23-8-2002, (Ex. R-1), makes mention of such an application which is of the same date It reads as follows:--- "Mr. M. Ajmal Cheema, 7-Bilal House, Muradia Road, Model Town, Sialkot.
Subject: Equivalence of Degree of Associate of Science in Business Management from Ashworth College, USA.
Dear Sir, With reference to your application dated 23-8-2002 on the subject, it is informed that the Ashworth College is an accredited College of USA. The University Grants Commission recognizes the degree of Associate of Science in Business Management awarded to you by Ashworth College, USA as equivalent to Bachelor degree from Pakistan. It may be noted that the letter is being issued for Election purposes.
Yours faithfully Muhammad Javed Khan"
It was issued by Muhammad Javed Khan (PW-2) on the same date. Since according to the learned counsel for the petitioner such a prompt issuance of certificate on the same date was indicative of unusual haste, the legal efficacy thereof is sought to be questioned. The learned counsel for respondent No. 1 has, however, endeavoured to dispel any such impression by suggesting that the Election Commission of Pakistan itself had urged the University Grants Commission, Islamabad that got this purpose the election schedule may be kept in view. The possibility that the election schedule since had been announced, the issuance of. Equivalence certificates was done so quickly, cannot be totally rules out. Indeed there was some correspondence for this purpose between the Election Commission and the University Grants Commission. However, now that the elections have been over long ago the doubt as to the grant and issuance of equivalence certificate need to be allayed. It is necessary because from the letter dated 23-8-2002 (Ex. R-1), it is evident that the equivalence certificate was issued to respondent No. 1 on the same day the date of application) without any reference to the Equivalence Committee constituted under Section 13 of the University Grunts Commission Act, 1974. The basis of such equivalence certificate was latterly disclosed a decision of the Equivalence Committee taken in the 42nd meeting on 4-31999 (E. R-3). It was so deposed by Abdul Qadoos, Education Officer, Higher Education Commission, Islamabad who appeared as PW-1. He had admitted that the application of respondent No. 1 had not been placed before the Equivalence Committee. In his statement as PW-2, Muhammad Javed Khan Director (Accreditation & Attestation) Higher Education Commission, Islamabad deposed that equivalence certificate Ex. R-1 was issued on the same day (23-8-2002) when application was made by respondent No. 1. He however, made reference to the letters issued by the Election Commission of Pakistan for such a speedy action. The petitioner Ch. Muhammad Saboor Kisana appeared as PW- 3 and emphatically stated that respondent No. 1 did not possess any graduation degree from any foreign university. Respondent No. 1 Muhammad Ajmal Cheema appeared as RW-2 and stated that he had graduated from Ashworth College in USA. It was, however. Admitted by him that he had failed to qualify F.A. Examination and that "I did not pass either F.A. Or B.A. Examination fee with the Ashworth College but was not formally admitted to the said Institution." It was further stated by him that "I do not remember the date of the qualifying testa It was, however, somewhere in the middle of July, 2002. I took the examination in a building of a College in New York designated for the purpose. The four semesters comprised 20 papers. I do not remember the dates of appearing in these 20 papers. I had appeared in these 20 paper within 20 days of the of the first paper. The ' examination had commenced after about 12 days of the deposit of the fees by me". The cumulative appreciation of the material on the record strongly suggests a due probe and scrutiny by the competent forum i.e. Equivalence Committee of Higher Education Commission, the successor. Of University Grants Commission as to the worth of degree claimed by respondent No. 1.
The Higher Education Commission came into existence vide Higher Education Commission Ordinance, 2002, Ordinance No. LIII of 2002, dated 11-9-2002 and took the place of University Grants Commission with the repeal of University Grants Commission Act, 1974. One of the functions of the Higher Education Commission as specified in S. 10(1)(o) is to "determine the equivalence and recognition of degrees, diplomas and certificates awarded by Institutions within the country and abroad." The Commission is empowered to setup various Committees under S. 13 of the Ordinance to effectively perform its functions. Equivalence Committee is one of such Committees whose function is to consider the recognition of degrees of local universities as well as equivalence of degrees from foreign universities viz.a.Viz. The degrees of universities in Pakistan. Keeping in view the pleadings of the parties, the emerging issue i.e. Issue No. VI and the evidence led by the parties, it has absolutely become necessary that the Equivalence Committee of Higher Education Commission consider the degree of Ashworth College, U.S.A. Sought to be invoked by respondent No. 1 in order to determine its equivalence as per the standards and criteria of the Commission. For this purpose respondent No. 1 may provide all such relevant information/material to the Commission/Equivalence Oommittee who will on consideration of the matte, prepare report within a fortnight.
10. The. Conclusions I have reached may be summarized as under:-
(I) To be elected or chosen as a Member of Assembly, one has to be graduate possessing a bachelor's degree in any discipline or degree recognized as equivalent thereto by the Commission.
(ii) The statutory body for determining and granting equivalence is the Commission. As contemplated by law, any such dispute as to "equivalence" can appropriately be resolved by the Equivalence Committee set up by the Commission.
(i.e) The determination so made by the Equivalence Committee of the Commission will have statutory backing and binding force.
(iv) Since graduation is one of the qualification as per S. 99(1)(cc) of the Representation of the People Act, 1976 and Article 8-A of the Conduct of General Elections Order, 2002 any issue or dispute as to whether a candidate is qualified to contest the election or qualified to be elected or chosen as a Member is necessary adjunct of the "election" process.
(v) By virtue of Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973 all election disputes are determinable by the Election. Tribunal appointed under S. 57 of the Representation of the People Act, 1976 through election petition, the forum thus to decide any issue as to qualification of a' candidate/Member (including the genuineness of degree of validity/legality of equivalence) can be raised before the Tribunal who by virtue of S. 68 of the Representation of the People Act, 1976 'is obliged to take decision thereabout.
(vi) Any party to a /is is entitled to abandon a plea and take alternative plea which is not inconsistent or contradictory. Likewise a party can ask for a lesser relief than the one claimed in petition.
To come up on 02-7-2007.