SYED ZAHID HUSSAIN, J, ELECTION TRIBUNAL.--- For participation in the forthcoming elections scheduled to be held on 8-1-2008, the appellant filed nomination papers for National Assembly, Constituency NA-102, Hafizabad, to which at the time of scrutiny by the Returning Officer, objections were raised by the other contestants/candidates namely Mrs. Saira Afzal Tarar, Mahr Asif Ali and Muhammad Yaqoob Mobal, Advocate. Their precise objection, inter alia, was that the appellant was not a graduate and the degree sought to be produced by him on the basis of which he was claiming to be qualified for contesting election, was forged, fake and fabricated. In order to dispose of the said objections, the Returning Officer of the Constituency heard the parties/their representatives and Advocates and vide order, dated 28-11-2007 the Controller, Examination, University of the Punjab, Lahore was directed to produce the original record. On 30-11-2007, Rauf Nawaz, Deputy Controller, Certificates University of Punjab appeared and produced the original record which was examined by the Returning Officer. On examination, it was observed'by the Returning Officer that one Mehdi Hassan Shah son of Muhammad Shah had appeared by submitting relevant examination forms in the examinations held by the University i,e, 2nd Annual 1974 to 1977 but had failed to qualify the same. The roll number under which the said Mehdi Hassan Shah appeared for the first time in the year 1974, was 10994 with Registration No,74-z-8821. As the name of the appellant is Mehdi Hassan Bhatti son of Ghulam Abbas Bhatti, on consideration of the said record, he reached the conclusion that the duplicate degree claimed by the appellant to have been issued by the University under Roll No,10994 and Registration No,74-z-98821 did not pertain to him and that since he did not possess the requisite qualification, his nomination papers were rejected on 30-11-2007. This is appeal by him under section 14(5) of the Representation of the People Act, 1976 against the rejection of his nomination papers.
2. The learned counsel for the appellant has laid great stress that in the election held in the year 2002, the nomination papers filed by the appellant had been accepted by the Returning Officer in view of his qualification i,e, graduation whereagainst his opponent had filed Election Appeal No,36- A of 2002 which had been disposed of by the learned Tribunal on 7-9-2002 and in the petition i,e, Writ Petition No,16729 of 2002 the said order was not interfered by a learned Full Bench of this Court on 16-9-2002. According to the learned counsel since in the said election, he took part as a graduate duly qualified to contest the election, the issue of his qualification cannot be reopened or reagitated. It is contended that the Returning Officer was supposed to conduct only a "summary inquiry" at the time of "Scrutiny" of nomination papers, he exceeded his jurisdiction in summoning the record from the University and recording finding against the appellant. It is also contended that the appellant in any case had not been afforded due opportunity by the Returning Officer.
According to the learned counsel such a disputed question could only be resolved after proper trial and the election petition could be the proper remedy for that purpose.
3. Respondents Nos.2, 3 and 7 are represented through their learned counsel, whereas rest of the respondents are not represented. The learned counsel for the respondents have drawn our attention to the appellant's own declaration made by himself in his nomination papers filed for the election held prior to the elections of 2002 that he himself had disclosed and declared himself as under-Matric. Reference is also made to the Directory of Members published by the Punjab Assembly in the year 1987, wherein introduction of the appellant along with his photograph was given and he was shown to be M.P.A. From PP-132, Gujranwala and his qualification was given as Middle. The subsequent Directory of 1988-90 is also referred to show his introduction with photograph with his qualification as Matriculate from PP-80-Gujranwala. It is contended that the issue as to the qualification of the appellant being graduate or otherwise had not been resolved in any of the previous proceedings i,e, culminating from nomination papers (Election Appeal No,36-A of 2002 or Writ petition No,16729 of 2002), therefore, there could not be any question of res judicata.
With reference to the provisions of section 14(3) of the Representation of the People Act, 1976, it is contended that though the Returning Officer is supposed to conduct "summary inquiry" for the purposes of scrutiny of nomination papers yet he has been empowered by clause (la) of proviso to subsection (3) of section 14 to "require any agency or authority to produce any document or record". It is thus, contended that the Returning Officer in summoning the record from the University and examining the same has acted within his lawful jurisdiction vested in him under the law and no illegality has been committed by him.
4. In order to consider the ambit of power and jurisdiction of Returning Officer crested in him by law, the relevant part of provisions of section 14 need to be kept in view which reads as following:- "Scrutiny.--- (1) The candidates, their election agents, the proposers and seconders and one other person authorized in this behalf by each candidate and an elector who has filed an objection to the nomination of a candidate, may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12: Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.
(2) The Returning Officer shall, in the presence of the persons attending the scrutiny under subsection (1), examine the nomination papers and decide any objection raised by any such person to any nomination.
(3) The Returning Officer may, either of his own motion or upon any objection, either by an elector or by any person referred to in subsection (1), conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that---
(a) the candidate is not qualified to be elected as a member;
(b) the proposer or the seconder is not qualified to subscribe to the nomination paper;
(c) any provi3ion of section 12 or section 13 has not been complied with or submits any false or incorrect declaration or statement in any material particular; or
(d) the signature of the proposer or the seconder is not genuine: Provided that:-- (1a) the rejection of a nomination paper shall not invalidate the nomination of a candidate by any other valid nomination paper;
(ii) the Returning Officer may, for the purpose of scrutiny, require any agency or authority to produce any document or record;
(iii) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and
(iv) the Returning Officer shall not enquire into the correctness or validity of any entry in the electoral roll.
(3A) Notwithstanding anything contained in subsection (3), where a candidate deposits any amount of loan, tax or utility charges payable by him before rejection of his nomination paper on the ground of default in payment of such loan, taxes or utility charges, such nomination paper shall not be rejected for default thereof."
The perusal of the above mentioned provisions would clearly show that an important and vital duty to be performed by the Returning Officer in the process of election, is the "Scrutiny" of the nomination papers. It is he, who is obliged to determine the eligibility/candidature of the persons qualified or disqualified to contest the election. Under section 12 only a duly qualified person can be proposed/seconded for the constituency. Subsection (2) of section 12 of the Representation of the People Act, 1976, calls upon the candidate to make certain declarations on solemn affirmation including the statement "specifying his educational qualifications" (clause (e) thereof) which necessarily implies that at the time of scrutiny to be made by the Returning Officer, the correctness and authenticity of such declaration is to be undertaken by the Returning Officer, even when no objection is raised by an elector. He can act "of his own motion" in making such "scrutiny" in view of provisions of subsection (3) of section 14, to satisfy himself about the qualification of a candidate. For that matter he can even "require any agency or authority to produce any document or record". Such a power vests in him since the introduction of clause (la) to the proviso to section 3 of the Representation of the People Act, 1976 vide Ordinance No,XXXVI of 2002 w,e,f, 31-7-2002. There thus, remains no obscurity or doubt that despite the fact that a summary inquiry is envisaged by subsection (3) thereof, the Returning Officer can, for his own satisfaction, adopt the course of sending for the record or documents and reject the nomination papers if, on satisfaction, he comes to the conclusion that the candidate was not qualified to be elected as Member. Since graduation is one of the qualifications tinder section 99(cc) of the Representation of the People Act, 1976 for being elected and chosen as a Member of Assembly, a candidate has, beyond any shadow of doubt, to show that he possesses a bachelor's degree or any degree recognized as equivalent thereto by the University Grants Commission (now the Higher Education Commission). A dispute of such a nature that the degree sought to be produced by the appellant was genuine or not, could be resolved by summoning the record from the University concerned. This is what exactly was done by the Returning Officer in this case. The mere fact that the appellant had contested election in the past and he was allowed to take part therein through the orders passed by the then learned Tribunal, or that the order of the Tribunal was not interfered with in writ jurisdiction or that the remedy of election petition could be availed after the election, does not in any way estop either any objector to raise objection to his qualification or preclude the Returning Officer to make scrutiny under section 14 of the Representation of the People Act, 1976. The principle of res judicata in the scheme of the law and the nature of the proceedings and orders passed by the Returning Officers or the Tribunal is not invokable as is usually pressed into service in normal trial of civil suits.
For each election, when nominations are filed, the Returning Officer is obliged to scrutinize the papers as is mandated by law i,e, section 14 of the Representation of the People Act, 1976 read with Chapter-II (Rr.3 to 5) of the Representation of the People (Conduct of Elections) Rules,' 1977. With the passage of time the law may have undergone changes or circumstances may be different, entailing fresh scrutiny each time the nominations are filed. In the instant matter, the issue of qualification of the appellant or his degree being genuine or not was never finally determined either by the Election Tribunal of 2002, or in the Election Petition No,106 of 2002, which was dismissed not on merits but on the basis of compromise between the parties therein. None of the present respondents objectors were party in those proceedings.
Though some of the documents were not on record yet since both sides have made reference to the pleadings, documents part of the same and proceedings, such as Election Appeal No,36 of 2002 and Writ petition No,16729 of 2002, the original files are before us. We have observed that in the nomination papers filed by the appellant in the elections held prior to the election of 2002 when graduation was not the qualification for candidature, he had been declaring and stating his qualification as under Matric. Such a declaration does not coincide with his declaration now being made by him that he was graduate since the year 1974. It is negation of the official record of the University.
Moreover, for our satisfaction we have also summoned the original record from the University of the Punjab, which has been produced by the Controller of Examinations himself before us and on perusal of the same, we are left with no doubt whatsoever that the view taken by the Returning Officer is absolutely correct and justified. Even the duplicate certificate produced by the appellant, purported to have been signed and issued by the Controller of Examinations, on 26-11-2007 is not a genuine document, as the signatures or issuance thereof have emphatically been denied by the Controller of Examinations who had appeared before us today. He has also affirmed on the basis of the entries in the relevant registers and records that one Mehdi Hassan Shah son of Muhammad Shah had been appearing in the examinations held from the year 1974-1977 under Registration No,74-z-8821 to establish beyond any shadow of doubt that the appellant Ch. Mehdi Hassan Bhatti son of Ghulam Abbas was not the person who ever appeared for examination held by the University of Punjab from 1974 or afterwards. The question of issuance of any degree to him, thus, hardly arises. It may be observed that neither before the Returning Officer nor before us the original of the alleged degree was produced.
In view of the overwhelming and unimpeachable material against the appellant about his claim of being graduate, we find no infirmity with the order passed by the Returning Officer and uphold the same. The appeal is dismissed accordingly. No order as to costs.