' MUHAMMAD NAWAZ ABBASI, J.---This petition has been directed against the judgment, dated 26- 12-2007 passed by Lahore High Court, Lahore, in Writ Petition No,12011 of 2007, whereby the petitioner has been declared not qualified to contest election and become Member of Parliament.
2. The facts of the case, in small compass, are that petitioner filed nomination papers to contest the election for the seat of National Assembly from NA-144, Okara-II in the General Elections, 2008.
The respondent No,1 being his opposing candidate raised objection to his candidature that he being not a graduate is not qualified to contest the election and become Member of the Parliament. The Returning Officer having summoned the record of Board of Intermediate & Secondary Education, Lahore as well as the University of Punjab for necessary verification and having found that intermediate certificate in possession of the petitioner was fake, rejected his nomination papers. In appeal filed by the petitioner before the Election Tribunal constituted under the Representation of People Act, 1976, he claimed to have passed Intermediate Examination from Board of Intermediate & Secondary Education, Larkana (Government Degree College Jacobabad) in the year, 1999 and produced certificate of Larkana Board, on the basis of which the Tribunal, declared him qualified to contest the election. The respondent being aggrieved of the order of Election Tribunal filed a constitutional petition in Lahore High Court, which was allowed vide impugned judgment, therefore, the petitioner has filed the present petition before this Court.
3. Learned counsel for the petitioner has assailed the judgment of High Court mainly on the ground that this is consistent policy of law laid down by the superior Courts that the constitutional jurisdiction of the High Court under Article 199 of the Constitution is not exercised in the cases of acceptance of nomination papers such as in the cases of rejection of nomination papers, in which a constitutional right of a person to contest the elections is involved and submitted that interference in the case of acceptance of nomination papers in writ petition would amount to exclude a person from the election at an intermediate stage without availing the normal remedy of election petition provided under the law. The learned counsel placing reliance on Ghulam Mustafa Jatoi v. Additional District and Sessions Judge 1994 SCM R 1299, Nazir Ahmed v. Chief Election Commissioner PLD 2002 SC 184 and Election Commissioner of Pakistan v. Javaid Hashmi PLD 1989 SC 396 has contended that the scope of interference in such cases in the constitutional jurisdiction is very limited The next contention raised by the learned counsel in support of this petition was that notwithstanding the true chairacter of intermediate certificate and the question whether the petitioner passed secondary education examination from Board of Intermediate & Secondary Education, Lahore in the year 1979 or from Board of Intermediate & Secondary Education, Larkana in the yea- 1999, the genuineness of B A result card issued to the petitioner by the. University of Punjab was not as such questionable, therefore, the objection would be of no significance and petitioner would be qualified to contest the election. Learned counsel, however, has conceded that in consequence to the order passed by the Returning Officer, the University of Punjab has cancelled B A result of the petitioner which was challenged by him before the Lahore High Court, Lahore in constitutional jurisdiction and matter was sub judice before the High Court. Learned counsel also conceded that in reply to the objection raised by the respondent in respect of the qualification of the petitioner before the Returning Officer, he did not take the plea of passing the Intermediate Examination in the year 1999 from Board of Intermediate & Secondary Education, Larkana rather this .Plea was raised by him for the first time in appeal before the Election Tribunal. He has also not been able to controvert the fake character of intermediate certificate of the Board of Intermediate & Secondary Education, Lahore produced by the petitioner before the Returning Officer, which as per record of Secondary Board, was not found to have been issued against the Roll No, mentioned therein.
4. The petitioner appeared in B A annual examination held in March, 2007, and he having been declared successful, was issued graduate certificate but subsequently on revising the result was declared not eligible and thus without being graduate, would not be eligible to contest the election.
Section 99(cc) of the Representation of People Act, 1976 provides 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 Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force;]"
5. The cancellation of B A result of the petitioner under challenge in a constitutional petition in the High Court and pending decision of the question relating to the eligibility of the petitioner to appear in BA examination, the High Court or this Court in the proceedings arising out of the order of the Returning Officer, cannot go into the question of genuineness or otherwise of the intermediate certificate and eligibility of the petitioner to appear in B.A. Examination or declare him graduate on the basis of earlier announcement of his result by the University of Punjab. Learned counsel for the petitioner has vehemently argued that the High Court in its constitutional jurisdiction, could not go into the question relating to the genuineness or otherwise of the certificate of the Board of Intermediate & Secondary Education or the B.A. Degree issued to him by the University of Punjab rather in such controversial question of fact, the election petition is the proper remedy provided under Article 225 of the Constitution.
6. This is settled law that the Returning Officer in the scrutiny of nomination papers and Election Tribunal in appeal against the rejection of nomination papers can go into all questions of qualification and disqualification of a person relating to his candidature in the summary proceedings and in continuation thereto, the High Court also in its constitutional jurisdiction can entertain the question of rejection or acceptance of nomination papers in the cases in which the disqualification of a person to contest the election, is apparent and can be decided without any factual inquiry. In the present case, the petitioner on the basis of his Intermediate Certificate allegedly issued to him by the Board of Intermediate and Secondary Education, Lahore, appeared in BA examination of the University of Punjab and the University by virtue of its rules, having gone into the question of eligibility of the petitioner to appear in BA examination at a subsequent stage, revised his result, therefore, the contention of the learned counsel that Election Tribunal under Article 225 of the Constitution, has exclusive jurisdiction to adjudicate the dispute arising out of election process, has no substance.
This is correct that in the normal circumstances, the election dispute is challengeable only by an election petition on completion of election process and filing of writ petition at an intermediate stage, may not be justified but there is distinction between Articles 225 and Article 199 of the Constitution. The power of Election Tribunal constituted under Article 225 is confined to the extent of election dispute which may also include qualification and disqualification of a candidate whereas Article 199 of the Constitution is not as such controlled by Article 225 of the Constitution in all matters at all stages of election rather the High Court in exercise of its constitutional jurisdiction may in suitable cases, exercise all powers to correct a legal error, defect or disability and has much wider power to that of the power of the Tribunal constituted under Article 225 of the Constitution of Islamic Republic of Pakistan. There is no cavil to the proposition that to avoid multiplicity of litigation and conflict of opinion, High Court may not interfere in the matters arising out of election dispute falling within the scope of Article 225 of the Constitution but nevertheless the jurisdiction o f High Court under Article 199 is not ousted for the mere reason that the matter can be brought before the Election Tribunal at an appropriate stage. There is no departure to the rule that there is limited scope of interference of the High Court under Article 199 in an election matter at an intermediate stage, which can be decided by the Election Tribunal but this rule, as such, may not be applicable to be pressed into service to permit a person to enter in the process of election who does not fulfil requisite qualification, therefore, the interference of the High Court during the process of scrutiny of nomination papers in a case in which disqualification of a person is floating on the surface of record is not objectionable instead non-interference of High Court in such a case in its constitutional jurisdiction, would amount to allow a person who is not qualified to be elected or become Member of the Parliament to contest the election and disturb the whole process. Article 225 of the Commutation, provides that no election to the House of Parliament or Provincial Assembly can be called in question except through election petition before the Tribunal constituted thereunder but the rule envisages therein may not be invariably applicable to all situations at all stages, rather in exceptional case High Court may under Article 199 of the Constitution, interference to uphold the constitutional mandate. In the case of Election Commission of Pakistan v. Javed Hashmi PLD 1989 SC 396 question was raised regarding jurisdiction of High Court under Article 199 viz. Article 225 of the Constitution to exercise jurisdiction in election matters at an intermediate stage and it was held that High Court had no jurisdiction to exercise power in such matters under Article 199 of the Constitution. The controversy in the said case related to the appointment of Presiding Officer, Assistant Presiding Officer, Returning Officer and the High Court taking cognizance under Article 199, declared the appointments of polling staff made by the Returning Officer illegal and Returning Officer was directed to make fresh appointments in consultation with District Returning Officer. The interference in the matter of appointment of polling staff was certainly an administrative affair of the election process which was within the exclusive domain of Election Commission and similarly a dispute concerning with the election would definitely be subject- matter of election petition whereas the question relating to the qualification and disqualification of a person would essentially be a prerequisite to enter into process of election and if a person is not qualified to contest the election, the interference of the High Court against the order of acceptance of his nomination papers would not be in conflict to the provisions of Article 225 of the Constitution.
The power under Article 199 of the Constitution no doubt can be placed on higher footing to that of power emanating from Article 225 of the Constitution and notwithstanding the fact that two Articles have independent scope, the power of the High Court under Article 199 is not curtailed by the mere fact that question of law brought before the Court directly or indirectly related to the election dispute rather the High Court has to determine the question of its jurisdiction in the light of facts of a case before it and the point involved therein.
5(sic). The relief claimed in the constitutional petition related to the candidature of the petitioner and the precise objection was that he was not a graduate to contest the election. This is not desirable to interrupt the election process except in the manner provided under the law but one cannot agree to the proposition that in case of substantial question of law arising in the election process, the same cannot be at all interrupted by the High Court at the intermediate stage and a blanket ban of jurisdiction should be read into Article 225 of the Constitution to every legitimate challenge of every kind of illegal order passed by an election authority. The orders passed by the Election Authorities beyond the scope of law are not immune from challenge and correction by the High Court under Article 199 of the Constitution and High Court in doing so, must exercise jurisdiction subject to normal rule therefore no hard and fast rule can be made that what type of errors and actions of election authorities are immune from challenge before the High Court at an intermediate stage and in what type of error and action, the interference is possible rather it depends upon the facts of each case, that what type of dispute is brought before the High Court at an intermediate stage and in the light thereof High Court has to decide the question of its jurisdiction.
6(sic). In the present case, the facts are almost admitted and the only question involved was in respect of the qualification of the petitioner who passed B A examination from University of Punjab but subsequently the University declared him not eligible to appear in the examination for the reason that his certificate of Board of Intermediate and Secondary Education, Lahore was found fake and bogus in consequence to which his graduation result was cancelled by the University. The matter relating to the cancellation of B A result of the petitioner, is sub judice before the High Court in a constitutional petition, therefore, the question of eligibility of the petitioner to appear in the B A examination cannot be gone into by this Court in the present proceedings and consequently, this petition cannot succeed on the ground of bar of exercise of jurisdiction by the High Court under Article 199 of the Constitution by virtue of Article 225 of the Constitution as in the facts of the present case, the remedy of election petition provided under Article 225 of the Constitution, may not be adequate. The law does not permit a person suffering from a patent disqualification to become a candidate and disturb the process of election and in view thereof, remedy under Article 225 of the Constitution, cannot be considered adequate as the refusal of relief in such a case in the constitutional petition may frustrate the process of election. This is admitted position that the petitioner presently is not holding graduation degree and in view thereof, we have not been able to find out any legal flaw or defect in the judgment of the High Court calling for interference of this Court.
7. In the light of foregoing reason, this petition fails and is dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.