1. GHULAM RABBANI, J.- Petitioner, Shaukat Ali Rajpar has challenged the election of respondent No. '1, Bashir Ahmed Banghan from Constituency No. PS-31, Khairpur-III. He has, inter alia, prayed that it be declared that the election of the said respondent, a returned candidate, is void and the petitioner, a contesting candidate, stands duly elected.
2. Brief facts for disposal of this election petition are that the petitioner and other respondents contested election from the above-mentioned constituency held on 10th October 2002 and as a result Whereof, respondent No. 1 Bashir Ahmed Banghan was declared as a returned candidate vide Notification No. F-2(35)/2000-Cord; dated 20th October, 2002 issued by the Election Commission of Pakistan, It is alleged that respondent No. 1 was not a graduate; he had filed a bogus degree and was not qualified to contest the said election within terms of Article 8-A of the Conduct of General Election Order, It is further alleged that the voters of constituency generally knew that respondent No. 1 contesting the election, was not a graduate and the degree/certificate filed by him alongwith- his Nomination paper, was bogus and false, It is stated that the petitioner had, on the day of scrutiny of Nomination paper, raised such objection before the Returning Officer, which was rejected with an absolutely baseless' reason/incorrect observation that "objector was satisfied and he withdraw his objectives". Appeal was filed by the petitioner before Appellate Election Tribunal Sindh (II) against that order where he had produced a Notification No. 1261, dated 2nd September, 20O2 issued by Assistant Controller of Examination (Secret), University of Sindh, Jamshoro, whereby, the Educational Certificate of respondent No. 1 was declared bogus and false.
3. According to petitioner, he had also called for verification of respondent's degree from the concerned quarters, but, neither the notification so produced was considered nor his request for verification of degree was acceded to by the Appellate Tribunal.
4. Respondent No, 1 contested this Election Petition; whereas, the rest of the respondents were declared ex parte and matter was ordered to proceed against them accordingly vide' orders dated 7th April, 2003 and 21st April, 2003, respectively.
5. Respondent No.1 filed his written statement, wherein, he has controverted the above allegations of petitioner. He has stated that he was a graduate and possessed true and verified degree certificate viz. Pass Certificate of BA bearing No. 001611. From book No. 17 with seat No. 1910 for the year 1983, verified with special seal of Assistant Controller of Examinations and therefore, the question that the voters of the constituency generally knew that he was not a graduate, did not arise. He has alleged that the notification dated 21.10.2002. Issued by Sindh University about his certificates that the same were bogus and false, was arranged and manipulated by petitioner in collusion with concerned authority of said University with mala fide intention to cause him irreparable loss, injury and to remove him from the seat of MPA. He has denied the allegation that the said notification was not considered by the Appellate Tribunal and that the orders of Returning Officer and the Appellate Tribunal were incorrectly passed. He has added that another Election Appeal No. 92 of 2002 filed by one Javed Ali against the acceptance of his Nomination paper was, too dismissed. He has denied to have violated any Election Rules and Regulations and that he was rightly declared as a returned candidate. Respondent No. 1 also raised a plea that this petition was hit by principle of res judicata.
6. On the above pleadings of both the parties, following issues were framed:-
(1) Whether petition is hit by principle of rets judicata?
(2) Whether respondent No. 1 is a graduate from University of Sindh Jamshoro- or not? If so, to what effect?
(3) Whether respondent No. 1 on the day of nomination, was disqualified from being elected as a member of Provincial Assembly within the meaning of relevant law?
(4) Whether respondent No. 1 is guilty of corrupt practices? If so, with what effect?
(5) To what relief petitioner is entitled?
(6) What should the order be?
7. Petitioner examined himself at Exh. 1 and produced photo copy of un-official result of election at Exh. 34, photo copy of notification dated 20th October, 2002 publishing name of respondent No. 1 and others as returned candidates as Exh. 1/3, certified true copy of Nomination paper of respondent No. 1 alongwith copy of its annexure (pass certificate bearing No. 001580) as Exh. 34, certified true copy of order dated 29th August, 2002 of Returning Officer, PS-31 as Exh. 1/5, certified true copy of Election Appeal No. D-60/2002. As Exh. .1/6, certified true copy of application under Section 8-A of the conduct of General Elections Order, 2002 in Election Petition No. D-60/2002 alongwith copy of notification bearing No. Exam/Sec:/Verification/1261, dated 02.09.2002 being its annexures, as Exh. 1/7, certified copy affidavit in Election Appeal No. D-60/2002 as Exh. 1/8, certified true copy of order dated 13.9.2002 on the above appeal as Exh. 1/9, photocopy of letter bearing No. R/PA/1678, dated 29.10.2002; examined PW Dost Muhammad, Assistant Controller of Examinations (Secret), University of Sindh, Jamshoro at Exh. 2 who produced notification bearing No. Exam/Sec: /Verifications/1261, dated 02.09.2002 as Exh. 2/1, photocopy of letter of Incharge Investigation Team Police Station market Hyderabad as Exh. 2/2, attested copies of the extracts showing attendance of students on different dates of BA Pass Examination 1983 as Exhs. 2/3 to 2/7, attested copy of page No. -101 of true result which was originally pasted on the two sets of Ledger/Register as Exh. 2/8, photocopy of certificate bearing No. 1 as Exh. 2/9, copy of said certificate with original verification/stamp as Exh. 2/10, photocopy of certificate bearing No. 00611 in the name of respondent No. 1 as Exh. 2/11, original of said certificate as Exh. 2/12 and marks sheet/certificate as Exh. 2/13; and examined PW Dr. Saeed Ahmed Soomro, Registrar of University of Sindh, at Exh. 3 who produced letter dated 29.10.2002 as Exh. 3/1 (original seen and returned) and thereafter closed his side vide statement as Exh.
4. Respondent No. 1 did not produce any evidence and on his behalf his counsel closed his side vide statement .Dated 16.9.2003 at Exh.
5. However, subsequently, after two days, respondent No. 1 himself moved an application dated 18.9.2003 praying for opening his side for the purpose of recording his evidence, inter alia, taking a ground that he could not contact his counsel who appeared before this Tribunal and closed his side without his instructions, It was however, strange that Mr. Bhatti who had made the closing statement, argued the above application. Mr. Ali Bin Adam. Jaffery, Advocate for petitioner, during the course of his arguments, on the above application, as a token of goodwill, offered to the respondent No. 1 to record his .Evidence if he earnestly desired to have his side opened for the purpose; but, respondent No. 1 while showing his reluctance took refuge in a pretext that he had some difficulty with his tongue and failed to avail-the chance. Since the respondent No. 1, despite many chances coupled with warning to appear for recording his evidence had already failed to record his evidence and his counsel Mr. Bhatti in his dosing statement specifically mentioned that it is prayed on' behalf of respondent No. 1, he (T) closes the side today 16.9.2002, the above application was dismissed by way of a detailed order dated 2.10.2003."
8. I have heard Mr. Ali Bin Adam Jaffari learned counsel for petitioner and Mr. Abdul Kadir Bhatti, Advocate for respondent No. 1 and with their assistance I have gone through the material made available before me. My findings are as follows:- Issue No. 1: The onus to prove this issue rests with the respondent No. 1. His counsel, Mr. Abdul Qadir Bhatti, argued that the question whether respondent No. 1 was a graduate or not on the day of nomination was resolved at the stage when Nomination paper of respondent No. 1 was accepted by the Returning Officer by his order dated 29.8.2002 (Exh. 1/5) and then when Election Appeal No. D-60 of 2002 filed by the petitioner against the said order before the Appellate Election Tribunal Sindh (II) at Sukkur, was dismissed vide order dated 13.9.2002 (Exh. 1/9). Mr. Bhatii, contended that both the above orders were passed after hearing parties and since the issue stood resolved finally by the order passed by Appellate Tribunal presided over by not less than two Honourable Judges of this Court determining the controversy, the same could not be re-agitated through this Election Petition. He contended that the decision of Appellate Election Tribunal in which the order of Returning Officer, favourable to petitioner, automatically merged-, would act as res judicata rendering this petition liable for dismissal on that count alone, In support, he placed reliance on case of Babu Muhammad Munir vs. S.A. Hameed and others (1998 MLD 3027).
9. On the other hand Mr. Ali Bin Adam Jaferi, learned counsel for petitioner argued that the Returning Officer/Appellate Tribunal deciding the question of acceptance or otherwise of Nomination Paper of a candidate and this Election Tribunal seized of the instant Election Petition do hot enjoy the concurrent jurisdiction hence the decision of Returning Officer/Appellate Tribunal would not act as a bar of res judicata. He contended that the instant Election Petition was also filed in different circumstances, in an election dispute i.e. Challenging the elections of the respondent No. 1 after he was declared a returned candidate as a result of election held in October 2002, and is to be decided by application of provisions of law altogether different to those under which Returning Officer accepted Nomination Paper of respondent No. 1 and the Hon'ble Appellate Election Tribunal
(II) Sindh maintained his order, therefore, the question of application of bar of res-judicata did not arise. Mr. Jaferi, too, placed reliance on the case of Babu Mohammad Munir (supra).
10. An important question of res judicata set up on decisions passed by the Returning Officer and the.
11. Appellate authority has been raised by respondent No. 1 in an attempt to prevent exercise of jurisdiction by this Tribunal. In order to appreciate the above' point, it will be advantageous, at this stage to set out, as follows, the. Relevant provisions, of the Representation of the People Act, 1976 (hereinafter to be called as "the Act") which are designed to deal with the matters taking place before and after, electors go to poll.
12. Section 2 (xxv) relates to the definition of the "Tribunal", which means an election Tribunal appointed under Section 57 for the trial of Election petitions. Chapter IV of the Act provides the method of conduct of elections. Section 12 thereof relates to the nomination of a candidate from a constituency. Sub-section (1) of said section provides that any elector of a constituency may propose or second the name of any qualified person to be a member for that Constituency. Sub- section (2) of the said section provides that every nomination Paper in the prescribed Form shall be signed both by the proposer and secondar and shall, bn solemn affirmation made and signed by the candidate; accompany a statement specifying his educational qualifications etc. Section 14 relates to the scrutiny of the Nomination Paper of a candidate. Sub-section (3) of the said section provides that the Returning Officer may either of his own motion or upon any objection, either by an elector or by any person referred in sub-section (1), conduct such summary enquiry as he may think fit and .May reject nomination paper if he is satisfied that the candidate is not qualified to be elected as a member, etc. Sub-section (5) of said section provides that a candidate may prefer an appeal against the decision of the Returning Officer rejecting or, as the case may be accepting the nomination paper of a candidate to the Tribunal constituted for the constituency to which the Nomination relates and that such Tribunal shall consist of not less than two or more than three Judges of High Court nominated by the Commissioner with the approval of President and that such appeal shall be summarily decided. The above chapter makes a provision to deal with the process of election up to the declaration of results of elections under Section 42 of the Act. Then, Chapter VII relates to election disputes. Section 52 thereof provides that no election shall be called in question except by an election petition made by a candidate for that election. Section 57 provides for appointment of Election Tribunal by the Chief Election Commissioner. Section 62 speaks about the procedure before the Tribunal and Section-64 confers upon a Tribunal all the powers of Civil Court trying a suit under the Code of Civil Procedure etc. Section 67 envisages that a Tribunal may, upon the conclusion of the trial of election petition, make an order finally disposing the election petition in the manner laid down therein.
13. From the above provisions of law, it will be seen-that Sections 12 and 14, of the Act relate to matters which come up before the Returning Officer and the Appellate Tribunal and are resorted to before electors go to polls; whereas, the other-provisions of the Act relate to matters taking place after election is held and its result is announced.
14. It will further appear that the decisions in respect of matters coming up in pre-polling exercise are rendered in a summary manner, whereas, full-fledged trial subject to relevant provisions of the Act is, as is in the instant case, held on an election petition arising out of the elections dispute in post elections exercise. The nature, Constitution, powers of two forums deciding matters in controversy before and after polling are quite different and even the procedure followed in arriving at a decision at the said two levels is different. Both the forums are, undeniably not of concurrent jurisdiction. The Returning Officer and the Hon'ble Appellate Tribunal have no powers to touch upon and decide the matters arising out of election dispute which squarely, fall only within jurisdiction of this Tribunal on transfer of election petition and before that such Tribunal has no role to play. The appeal against the order of Returning Officer lies before Appellate Tribunal consisting of not less than two or more than 3 Hon'ble Judges of High Court whose decision shall be final: whereas, the decision of this Tribunal, is-appealable before Hon'ble Supreme Court within terms of Section 67 (3) of the Act. Evaluating the contention of Mr. Bhatti in the above stated legal position, in my humble view, the orders dated 29.8.20O2 (Exh. 1/5) and 13.9.2002 (Exh. 1/9) passed by learned Returning Officer and the Hon'ble Appellate Election Tribunal, respectively, do not act as a bar of res judicata and an election may be challenged by- a candidate for that election, Mr. Bhatti has, in support of his contentions; placed reliance on case of Babu Muhammad Munir (supra) which in my opinion being in distinguishable circumstances is not relevant hence of assistance to the applicant as is evident from the following passage:- "6. It is clear from the scheme of the Act 1976 that it provides for Election Tribunals at two junctures of election process. The first one is constituted under Section 14(5) to hear the appeal against the decision of Returning Officer accepting or rejecting nomination papers. This Tribunal is to decide the appeals in a summary manner and within the -specified period otherwise the appeals are to be deemed to have been rejected. Thereafter, the election process continues upto declaration of the result. Then comes into play Chapter VII dealing with the election disputes. The election can be challenged only by election petition by a candidate under the provisions of Section 52 of Act. 1976.
15. It is further observed: The scope of the two Tribunals is quite distinct, In short, the Tribunal constituted under Sections 14(5) deals with the appeals against the orders of Returning Officer rejecting or accepting the nomination papers. This way it covers pre-polling stage up to acceptance or rejection of nomination papers while the Tribunal under Section 57 is constituted for adjudication of election disputes.
16. The leave has been refused by the Hon'ble Supreme Court on merits and decision of-the Election Tribunal consisted of three learned Judge of this Court confirmed, therefore, the same matter cannot be allowed to be agitated through an election petition under Section 52 of Act, 1976."
17. In view of the above discussion, my finding on this issue is in negative and it is held that this petition is not hit by principle of res judicata.
18. Issue Nos. 2 & 3: These issues are inter-connected and the same are dealt with together. The onus to prove these issues, in- the first instance, rests with the petitioner.
19. Mr. Ali Bin Adam Jafferi, learned counsel for petitioner to support the case of petitioner referred to the evidence of petitioner and his two witnesses namely Dost Muhammad, Assistant Controller of Examinations (Secret) and Dr. Saeed Ahmed Soomro, Registrar, University of Sindh, Jamshoro, who in their evidence produced a host of documents. They were cross-examined at length by learned counsel .For respondent No. 1.
20. Petitioner in his evidence has deposed, palpably, .In respect of graduation certificate of respondent No. 1 / that the Degree/Certificate, on verification/enquiry was found bogus/false and that the voters of constituency knew well that respondent No. 1 was not a graduate. He produced as Exh. >4 a certified true copy of Nomination Form of respondent No. 1 alongwith copy of B.A. (Pass) Part-ll of respondent No. 1. In his cross-examination, he stated that it is incorrect to suggest that the certificate of graduation produced by respondent No. 1 is genuine. He denied a suggestion that respondent No. 1 was a candidate who complied with relevant provision of law: PW Dost Mohammad, Assistant Controller of Examination (Secret), stated in his deposition that Bashir Ahmed s/o Haji Sobharo Banbhan (respondent No. 1) was not a bona fide student/candidate against seat No. 1910 in B.A. (Pass) Part-ll of 1983 held in the month of February, 1984. He deposed that in Secret Department in University of Sindh there are two Sections namely Top Secret and Secret. Both these sections maintain identical record by keeping identical set of the documents including register of results and other documents and that the Register of relevant Ledger at page 101 contains the result of students who appeared in B.A. (Pass) Part-1! Examination of 1983. He further deposed that, the Top Secret Ledger/Register originally bear the name of one Abdul Shaffaque s/o Allah Wassayo Girano by caste and that a paper containing some other result prepared by Cyclo Style Machine was pasted on the original list and the paper so pasted upon the original one bears the name of Bashir Ahmed son of Haji Sobharo Khan Banbhan against Serial No. 1910. He stated that the page of Top Secret Register which was tampered within the above manner, bears a note dated 02.9.2002 that a notification (Exh. 2/1) was issued to that effect. He produced an attested copy of page No. 101 of original result as Exh. 2/8, which stood originally pasted on the above two sets of ledger/registers. Both the above two Registers were verified by me whereafter, following note was recorded in his deposition; "Note - Both the afore-mentioned registers have been seen and verified. The Top Secret Register shows that the paper bearing the name of Bashir Ahmed son of Haji Sobharo Khan Banbhan pasted on another paper (claimed by the witness to be original) has been slightly detached from lower side of page and the upper portion of the detached page/paper remains firmly pasted. The lower portion from where the superimposed (paper) has been detached clearly bear the name of Abdul Shaffaque against Roll No. 1910. As regards other register, he stated that on that too, another paper stood superimposed by pasting, making the original entries not visible."
21. It will be pertinent to note that during the course of cross- examination of above witness, not a single question was asked if the original record/registers were not tampered in the above stated manner.
22. PW Dost Muhammad, in his evidence produced attested copy of page No. 101 of original result (Exh.
23. 2/8) which stands pasted originally on the two sets of above- mentioned registers. I have verified the same and find that it bears the name of Abdul Shaffaque son of Allah Wassayo Girnao by caste of Tando Ailahyar centre against seat No. 1910 of B.A. (Pass) Part. II Examination of 1983-84, which according to above P.w. Was held in the year 1984. No questions, in cross-examination, was asked if the said documents (Exh. 2/8) was an ingenuine document.
24. The above witness also produced attested copies of the extracts from attendance/signature sheets of different dates of. BA- Pass Examination 1983 as Exhs. 2/3 to 2/7, (originals whereof were seen and returned). He stated that signatures appearing-on all the afore-mentioned extracts from attendance/signatures sheet against Roll No. 1910 are not of Bashir Ahmed son of Haji Sobharo Khan Banbhanbut of other student which from the writing and style of signatures appear to be of Abdul Shaffaque. I have verified these documents and find that the above statement-of this witness is not untrue. The above documents viz. Extracts Exh. 2/3 to 2/7 relate to the daywise attendance of students who appeared in the B.A. Final (B.A. Pass Part-ll) Examination held on 8.2.1984, 11.2.1984, 15.2.1984 and 19.2.1984 from Tando Ailahyar Centre. All these documents bear serial No. 1910 and in the relevant column of "signature of candidates" the signatures of student appearing against the said serial number are totally different to those signatures of respondent No. 1 which are available on variety of documents on record. The signatures available on above documents from the tenor/style appear to be of some other student and it cannot be denied that the same are not of Abdul Shaffaque. No question in the cross-examination of this witness was asked if the above-mentioned documents did not belong to the B.A. (Pass) Part-ll Examination of 1983 held in the month of February 1984. Also no suggestion was made to this witness if the signatures appearing against Seat No. 1910 were of respondent No. 1 and not of other student by name of Abdul Shaffaque. Even the authenticity of these documents was not challenged.
25. Here, it will be pertinent to mention that in the foregoing paras I have mentioned that PW Dost Muhammad stated in his deposition that the page of Top Secret Register, which was tampered with, bears a note dated 2:9.2002 that a notification (Exh 2/1) was issued to that effect with regard to issuance of said notification which bears No. 1261, dated 2.9.2002. PW Dost Muhammad deposed that the Sindh University Authorities had verified the pass marks and Degree Certificate of BA Pass Annual Examination with Seat No. 1910 which was claimed by respondent .No. 1, Bashir Ahmed Bahban son of Haji Sobharo Khan Banghan; and as a result of such verification both certificates were found to be bogus and false and such notification bearing No. Exam/Sec-verification/1, dated 2nd September 2002 was issued by him, which he produced as Exh. 2/1. He stated that the exercise or above verification was initiated at a written request of Police Department and in support, he, produced photocopy of letter of incharge Investigation Team Police Station Market Hyderabad as Exh. 2/2 further stating that original of said letter was available in his office and could be produced at any time whenever so directed, In his cross-examination nothing tangible was brought forth that the said notification was wrongly issued rather the said witness denied a suggestion that the issuance of said notification was managed and that it was sham and bogus.
26. It may be noted that it is stated hereinabove that respondent No. 1 did not produce any evidence and on his behalf, his counsel, Mr. Bhatti, closed his' side vide statement dated 16.9.2003 at Exh: 5 and that subsequently, after two days, respondent No, 1 himself moved an application dated 18.9.2003 praying for opening, his side for the purpose of recording his evidence, inter alia, taking- a ground that he could not contact his counsel who appeared before this Tribunal and closed his side without his instructions. On such application, Mr Ali Bin Adam Jaffery, Advocate for petitioner, during the course of his arguments, as a token of goodwill, offered to the respondent No. 1 to record his evidence if he earnestly desired to have his side opened for the purpose; but, regretfully stated, respondent No. 1 while showing his reluctance took refuge in a pretext that he had some difficulty with his tongue and failed to avail the chance, It may be noted that before the closing statement was given by his counsel, respondent No. 1 despite repeated chances provided to him with warning had failed to appear to repaid his evidence. The above application was, therefore, dismissed by way of a detailed order dated 2.10.200S.- There is, thus, nothing in. Rebuttal. Yet, Mr. Abdul Qadir Bhatti, learned counsel for respondent No. 1, ostensibly, in order to show that respondent No. 1 possessed graduation certificate managed to have photocopies of two certificates as Exh. 2/9 and 2/11 produced through P.W. Dost Muhammad, in his cross- examination. These certificates bear Nos. 001580 & 001611 and are in the name of Bashir Ahmed son of Sobharo Khan Banghan (respondent No. 1) with Seat No. 1910 in respect of B.A. (Pass) Part-ll Examination of 1983 of the University of Sindh, held in the month of January/February, 1984. Similarly, he also got produced the original copies of the above certificates as Exhs-. 2/10 and 2/12,. Marks Sheet of. The said examination (as Exh. 2/13), as well, in the name of respondent No,
1. P.W Dost Muhammad admitted that Exhs. 2/10 and 2/12 bore his signatures as verifying official of said documents. He also admitted that the marks (not the name) shown in the Marks Sheet (Exh. 2/13) were the same as were shown in the Top Secret Register. Mr. Bhatti argued that these two certificates sufficiently proved that respondent No. 1 was a graduate. I am afraid. I do not find myself inclined to agree with him. In this behalf, it will be advantageous to refer to other evidence of P.W. Dost Muhammad wherein, he while describing the procedures for preparation/verification of such Pass Certificate stated that such certificate is prepared by a clerk, Secret Branch, which is a part of Examination Branch and it is not necessary that the certificate so prepared be checked by any other clerk of same branch and that after preparation the same in placed before the Assistant Controller of Examination (as he himself used to be) who signs the same for the Controller of Examination. He, however, admitted that every Certificate/Marks Sheet and degree 'etc. Requested for is issued after verification of the original record maintained by the Secret Branch and Top Secret (Section) and that whenever any certificate marks sheet or degree is verified by the Examination Branch, the said registers are always consulted before verification, the stamp of verification is put on such certificate by the concerned clerk and it is also embossed with the seal of University by the same clerk, In the instant case, however, the original record was . Not consulted before issuance/verification of pass certificates. P.W. Dost Muhammad admitted that pass certificates (Exh. 2/10 and 2/12), bore his signatures or verification, however, on a question asked by me, he replied that he had hot seen the original record before verification of certificates Exh. 2/10 and Exh. 2/12 for the simple reason that both these documents were prepared by clerk namely Gul Muhammad of Examination Branch who had brought both the documents duly stamped and he had only put his signature as a token of verification of these two certificates. On another question, he replied that he had not cared to verify that original record personally. This witness, in his cross-examination, also denied a suggestion that the certificates of B.A. And Marks Sheet in the name of Bashir Ahmed against Roll No. 1910 of BA
(Pass) Part-ll of 1983 are genuine. Be that as it may, I have verified the original record viz. Top Secret Register and the Secret Register and have found that the same stood tampered with in a manner explained in a "Note" reproduced verbatim in the foregoing paras. As well,! Have stated herein above that I had verified the copy of .Page No.1 Of of original result which stood originally pasted on the two sets of above registers and found that it bore the name of Abdul Shaffaque son of Allah Wassayo, Girarto by caste, of Tando Allahyar Centre against Seat No. 1910 of G.A. (Pass) Part-ll Examination 1983-84 held in the year 1984, hence even otherwise it cannot be presumed with any amount of certainty that certificates Exh. 2/10 & Exh. 2/12 were prepared from the original record or it could be said with certainty that these two certificates reflected the true entries of original record.
27. Mr. Bhatti, learned counsel for respondent No. 1 in cross-examination of this witness, who is a concerned officer of relevant branch, could not shake his evidence that the certificates/Marks Sheet (Exh. 2/9, 2/11 and 2/13) were not prepared from original record maintained by concerned branch of University of Sindh and failed to establish that it was respondent No. 1 and not the student Shaffaque who had appeared in B.A, (Pass) Part-1! Examination held in 1984. Rather in his cross-examination this witness replied that these certificates and marks sheet were not prepared according to original record and also that the said certificates are bogus. And were prepared fraudulently.
28. Now, coming to answer the questions whether in the above circumstances respondent No. 1 was a graduate and qualified to be elected as a member of an. Assembly, it will, be advantageous, in the first place, to refer to Section 99(1 )(cc) of Representation of the People Act, 1976 which provides that a person shall not be qualified to be elected of chosen as a member of an Assembly unless 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. Or any other law for the time being in force. Almost identical provision is incorporated in Article 8-A of the conduct of General Elections Order, 2002, (hereafter to be called "the Order"), which is reproduced as follows:- [8A. Educational qualification for a member of Majlis- e-Shoora (Parliament) and a Provincial Assembly.
29. Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (U of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time, being in force, 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.] In view of the heavy weight of copious evidence coming oh record, as above, seen in the above- cited legal position, in any view, it is sufficiently established that the respondent No. 1 is/was not a graduate from University of Sindh, Jamshoro and that on the Nomination day he was disqualified from being elected as a member of a Provincial Assembly. My findings on the above issues are accordingly, Issue No. 4.
30. Burden of proof of this issue, too, rests with the petitioner. Petitioner has stated in his evidence that the respondent No. 1 mentioned in his Nomination (Form) for contesting election from PS-31, Khairpur-III, his basic qualification as B.A. (graduate) and in support whereof the respondent No. 1 enclosed a certificate bearing No. 1580 dated 22.8.2002 issued by the Controller of Examination, University of Sindh, Jamshoro. Petitioner has further deposed that on verification of degree/certificate it was found bogus. He produced a certified true copy of Nomination paper of respondent No. 1 alongwith a copy of said certificate Exh. 1/4. Petitioner has also examined P.W. Dost Muhammad who is none else than the Assistant Controller of Examination (Secret), whose evidence has already been discussed in detail while dealing with Issue Nos. 2 & 3, as above, which need not be repeated herein for the sake of brevity. However, I have examined the Nomination Form (Exh. 1/4) of respondent No. 1, Bashir Ahmed and find that on page No. 3 thereof against relevant para. No. 5 he has declared on oath that his educational qualification is B.A. (graduate).
31. While dealing with issue Nos. 2 & 3, as above, I have already given my finding that, "It is sufficiently established that the respondent No. 1 is/was not a graduate from University of Sindh, Jamshoro and that on the Nomination day he was disqualified from being elected as a member of a Provincial Assembly." Section 78{3)(d) of the Act provides that a person is guilty of corrupt practices if he makes or publishes a false statement or submits false or incorrect declaration in any particular manner in respect of his educational qualifications, etc. Thus, in view of my findings in issue Nos. 2 & 3, conspicuously reproduced hereinabove, I am clearly of the view that the respondent No. 1 is guilty of corrupt practice and is liable to be dealt with, as such, in accordance with law. My finding is accordingly.
32. Issue No. 5 In this petition, petitioner has prayed that it be declared that the election of respondent No. 1, a returned candidate is void and the petitioner, a contesting candidate stands duly elected. Before ;he above request of the petitioner is considered, it will be advantageous to reproduce, as follows, the relevant Sections of the Act.
33. 67, Decision of Tribunal- The Tribunal may, upon the conclusion of the trial of an election petition.
(a) dismissing the-petition;
(b) declaring the election of the returned candidate to be void;
(c) declaring the candidate to be void and the petitioner or any other contesting candidate ter have been duly elected; or
(d) declaring the election as a whole to be void.
68. Ground for declaring election of returned Candidate void:- The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that:-
(a) the nomination of a returned candidate was invalid; or
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as, a member; or
(c) the election or returned candidate has been procured or induced by any corrupt or illegal practice; or
(d) a corrupt or . Illegal practice has been committed by the returned candidate.
34. Mr. Ali Bin Adam Jaffery, learned counsel for petitioner, argued that enough evidence has come on record that the respondent No. 1 was not graduate, and the voters of the constituency in question knew this fact very Well, therefore, besides holding the ejection of respondent No. 1 void, the petitioner, securing next higher votes maybe declared to be a returned candidate and the Provincial Assemble seat be awarded 'to him. In. Support of his contentions be placed reliance on case of Rashid Ahmed vs. Mirza Barkat Ali & others (PLD 1968 SC 301), the ease of Muhammad Usman vs. Lai Mohammad & 12 others (PLD 1975 Karachi 352), the case of Sayed Saeed 'Hassan vs. Piyar Ali & 7 others (PLD 1976 SC 6) and the case Of Karam Hussain vs. Malik Muhammad Zariat & 4 others (PLD 1984 SC (AJ&K 129).
35. I have given my due attention to the arguments of Mr. Jaffery and I have also gone through the case law sited by him. In this regard, it is noted that petitioner has simply made a vague statement in his evidence that the voters knew well that respondent No. 1 is/was not a graduate. Neither, he has specially named any elector for whom he could say that he knew that the respondent No. 1 was not a graduate nor he has examined any elector to support his version. He has also not stated as to how the voters knew well that the respondent No. 1 was, not a graduate.
36. The voters of the constituency have undoubtedly cast majority of voters in favour of respondent No.
1. Now, to throw away the Votes Cast in favour of respondent No. 1, so as tb give the seat to candidate with the next highest number of votes, it need to be certain that the voters before voting either have had or be deemed to have had notice of the fact of disqualification of candidate, in this case the respondent No. 1. In other words the disqualification must be notorious. I have already stated hereinabove that petitioner has simply made a vague statement that the voters of constituency knew well that the respondent No. 1 was not a graduate hence disqualified. There is, however, no. Tangible evidence available to substantiate the plea taken by the petitioner, In case of Muhammad Usman (supra), while referring to the criteria as laid down in paragraph 549 of Halsury Law of .England 3rd edition, Vol. 14 and taking note of decision of Honourable Supreme Court in case of Rashid. Ahmed vs Mirza Barkat Ail & other$ (PLD 1968 SC 301) it was observed.- "More clearly their Lordships were also laying it down as a general principle of the law of elections that "the voters could have had no notice of the facts" that there was a disqualification and, therefore, cannot be disenfranchised for no fault on their parts. The situation in the present case is identical. Although Usman Kennedy had not attained the age of 25 years the electorate had no reason to think so. His nomination paper had been accepted and his name appeared on the electoral list There was no evidence before the Tribunal that any candidate sought to campaign on the basis that he was not qualified as to age and it is impossible in the circumstances, therefore, to.
37. Hold that his disqualification was notorious, In these circumstances to award the seat to Lai Muhammad would be in the language of the Supreme Court, tb disenfranchise the voters."
38. In another case of Sayed Saeed Hassan vs. Piyar A!i & 7 others (supra 6) cited by Mr. Jaffery, It was observed that on the basis of Halsbury's Law of England Vol. 14 the decision in further declaring that the candidate securing, the next highest number of votes was duly elected, was found to be unsustainable in law and it was held that in the circumstances, therefore, the seat should not have been awarded to respondent No. 1 and to that extent the judgment of High Court was set aside and it was directed that the election be held afresh, In yet an other case of Karam Hussain vs. Malik Muhammad Zariat & 4 others (PLD 1984 SC (AJ&K 128), also cited by Mr. Jaffery, while observing in para. 15 that "the voters had no notice of the infirmity attaching to the appellant's candidature and accordingly the question of deducting any votes from the number of the votes polled by the appellant does not arise. This is a clear case where the 810 votes, cast in favour of the appellant, cannot be treated as votes wasted or thrown away by the voters, they are accordingly entitled to have, a fresh chance of choosing a representative of their choice.", it was held that "although the appellant Karam Hussain-was not qualified to stand for election, by virtue of this being less than 25 years of age, on the relevant date, and although his election was correctly declared as void by the Election Tribunal yet that part of the order of Election Tribunal by which the respondent Malik Muhammad Zarait has been declared to be duly elected cannot be sustained in law." Thus, keeping in view the facts and circumstances, of the case and with due respects on reference to the case Jaw cited- above, in my opinion, the only relief to which the petitioner is entitled is that the election of respondent No. 1, a returned candidate, be declared to be void within terms of Section 67(1 )(b) of the , Act.
39. Issue No. 6 In view of the findings on the above issues, this petition is allowed to the extent that .The election of respondent No. 1 Bashir Ahmed son of Subhro Khan Banbhan, a returned candidate is declared to be void. Respondent No. 1 is also required to pay a cost of Rs. 25,000/- (twenty-five thousand only) to the petitioner.
40. Office is directed to communicate this order to learned Commissioner, for further action in accordance with law. The record of this petition shall also, be forwarded to the learned Commissioner within terms of Section 72(2) of the Act.