' SYED MAHMOOD ALAM RIZVI, J.---These constitutional petitions have been filed by the petitioner against the impugned orders,. Dated 14-12-2007 of the Election Tribunal. By the aforesaid impugned orders the Election Tribunal had dismissed the Election Appeals bearing No,60 of 2007 (Dr. Fehmida Mirza v. Syed Ali Bux Shah @ Pappu Shah and another), No, 61 of 2007 (Dr. Fehmida Mirza v. Syed Ali Bux Shah @ Pappu Shah and another) and 72 of 2007 Dr. Fahmida Mirza v. Bibi Yasmeen Shah filed by the petitioner challenging the acceptance of the nomination papers of the respondents No,5 namely Syed Ali Bux Shah @ Pappu Shah from NA-225 Badin and PS-57, Badin-III and his wife Bibi Yasmeen Shah from NA 225, Badin, respectively. The petitioner, feeling aggrieved and dissatisfied with the above impugned orders has assailed the same by way of these three constitutional petitions. Since the parties and their constituencies as well as points involved are identical, therefore, all the petitions were heard together and decided by a common judgment.
2. The above petitions were admitted for regular hearing by issuing notices to respondents. The respondents No,5, in all the petitions, filed their counter affidavits separately with annexure.
3. The respondents Nos.4 and 5 are candidates of NA-225 Badin and PS-57 Badin-III constituencies, who filed their nomination papers to contest the forthcoming Elections, 2008, the petitioner filed her objections before the Returning Officer that the BBA/BA Degrees, filed by the respondents No,5, are fake and bogus documents. That earlier the respondents No,5 (C. Ps. 2499 and 2501/07) (S.A.A.
Shah) had filed candidature for the Sindh Local Body. Election supported by a certificate of Matriculate and marks-sheet which were later on declared bogus, hence his nomination papers were cancelled and the said order was impugned by an Election appeal bearing No,6 of 2001, but the same was withdrawn, hence the order of Returning Officer was affirmed, and till then the respondent No,5 had no higher qualification.
4. The respondent No,5 contended that he had contested the General Election 2002 on the basis of impugned Decree which was challenged by his rival candidate and the matter went up to the level of Hon'ble Supreme Court and he was allowed to contest the election by the Hon'ble Supreme Court in Civil Appeal No,1937 of 2002 vide order, dated 6-10-2003. In that order it was observed that the effect of the impugned degree was pending before the Election Tribunal and the Election Tribunal was directed to expedite the disposal of the Election Petition on merits and strictly in accordance with law, hence still his degree was not declared bogus or otherwise.
5. The learned counsel for the petitioner has relied upon the Higher Education Commission issued as "Parents Alert of Illegal Operating University Campuses in Pakistan", whereby International University of America (IUA) was shown operating illegally and the International University was not recognized by the University Grants Commission (UGC). It is urged that the degree relied upon by the respondent No,5 has been shown to be issued by IUA on 16-12-1998, whereas in the matter taken up in relation to Sindh Local Body Election in 2007 memorandum required being matriculate, the degree possessed by the respondent No,5 was not disclosed. Consequently, appeal was withdrawn, which shows that the respondent No,5 did not posses a degree recognized for use in Pakistan being forged or obtained by unlawful means and could not be deemed a Graduation Degree B mandated for contesting elections. The learned counsel further contended that IUA was registered in Norfolk, Ireland in 2001,, whereas the degree was awarded to respondent No,5 in 1998.
Since his matriculation certificate was held to be forged in the year, 2001, therefore, on account of non-disclosure of the fact that the respondent No,5 had obtained his BBA Degree in the year, 1998, during the processes being conducted in the year, 2001, it shows the fact that in the year, 2000 his BBA Degree never existed. The learned counsel also relied on the prospectus of IUA, which does not include the subject of "Agriculture Management" whereas BBA Degree was issued in "Agricultural Management".
6. That regarding the respondent No,5 in C.P. No,D-2500/2007 that advocate for the petitioner contended that she has annexed her BA Degree with the nomination papers, which prima facie, is fake and bogus and her name shown in the educational degree and marks sheets appears to be Yasmin Hussain' father's. Name as 'Ali Hussain Jamali' but the date of birth mentioned in the matriculation certificate is shown '1965', while in the National Identity Card it is mentioned as '1968'.
There is also contradiction regarding passing of BA as '1987' either in supplementary examination or annual examination held in 1987. It is contended that Yasmin Hus'sain is actually existing being another person with the same Registration No,11794 of 2006 who was born in 1965 and her father's name was `Muhammad Hussain Jamali' residing at 114-N, Block-2, Haji Road, PECHS, Karachi the said Yasmin Hussain's degree has been used by the respondent No,5 by fraud. He further argued that the respondent No,5 was a student of Nazeerat College, Hyderabad and had failed in her intermediate examination, hence she never appeared in the BA Examinations. The matriculate certificate of the respondent No,5 shows her date of birth as '1981', which shows that she had passed her matric examination at the age of 13 years only and further, that the education of the respondent No,4 shows that she, up to intermediate, was a student of Hyderabad, while the alleged degree is of Karachi, therefore, how could it be possible that she appeared in BA Examination without obtaining a transfer certificate and even without passing her intermediate examination.
Hence on the face of it her educational certificates are bogus and she was not entitled to contest the forthcoming General Elections, 2008.
7. Mr. Ali Ahmed Junejo, learned counsel for the respondent No,5 contended that prior to her marriage the father's name of the respondent No,5 was 'Hussain Jamali' and thereafter, became 'Shah' as the name of her husband is `Syed Ali Bux Shah' and the same is also mentioned in her National Identity Card. Therefore, on the basis of her valid degree and NIC and other documents the Returning Officer had accepted the nomination papers. He further contended that during the proceedings before the respondent No,3, the Assistant Controller of Examination, University of Karachi, verified her degree and one Syed Raees Ahmed the Consultant, Examination Department, University of Karachi) produced a register which contain the name of respondent No,5 in the said register the correction was made in black pen in the father's name of 'Ali Hussain Jamali' and he further denied in cross-examination that this was a result of manipulation. The degree issued by Karachi University is genuine.
8. Mr. Junejo further urged that at the pre-election stage the petitioner had no locus standi in the matter as was held in the case of Najaf Abbas Siyal v. Khawaja Hassan Wali (2003 CLC 1068). It is next urged that Courts have declined to interfere in the petition of an electorate on the grounds that disputes on question of facts were involved. In this connection reliance is placed on Nawabzada Mir Balach Khan Mari v. Mir Mahabat Khan Mari (PLD 2003 Quetta 42), which involves a question whether the degree of the contesting candidate was genuine or not. The Court held that disputed questions of the facts were involved which could not be agitated in constitutional jurisdiction. The counsel further contended that to prove the allegation of forgery, required positive evidence which involved examination of witnesses as well as their cross-examination as per Qanoon-e-Shahadat Order, 1984 and before an appropriate forum, which could not be done in constitutional jurisdiction. It is, next urged that the decision of the Elections Tribunal must be based on positive evidence and not in surmises and conjectures and he relied upon the case of Khan Muhammad Yousaf Khan Khatak v. S.M. Yaqoob and 2 others (PLD 1973 SC .160). A strict proof of disqualification was required which was lacking in this case.
9. We have heard Messrs Mansoor Khan, Asim Mansoor Khan and Bashir Ahmed Khan, advocates for the petitioner, Mr. Ali Ahmed Junejo Advocate for respondent No,5; Mr. Atta-ur-Rehman, Assistant Election Officer; and Mr. Agha Zafar, A.A.-G for the State while none was present on behalf of D.A.-G.
10. We have examined the record in all the petitions. The husband and wife are also contesting candidates of NA-225 Badin and the husband is also a candidate of PS-57 13adin-HL As far as the degree of Syed Ali Bux Shah is concerned, the same has been issued by the University of America and no such proof was filed before the Tribunal that the impugned degree is forged or lubricated.
As regard the BA Degree of Bibi Yasmin Shah the same has been tentatively verified by the Tribunal and-the disputed facts, as contended by the petitioner, require detailed examination of the educational testimonial of the respondent No,5 and no further probe could be made in constitutional jurisdiction as disputed questions of facts relating to qualification of a returning candidate can conveniently be adjudicated upon in an Election Petition. Reliance can be placed on the cases of Election Commission v. Javed Hashmi (PLD 1989 SC 396), Najaf Abbas Sial v. Hassan Wali Khan (2003 CLC 1068), Ch. Nisar Ali Khan v. Ghulam Sarwar Khan (2003 CLC 442), Aftab Shaban Mirani v. President of Pakistan (1998 SCMR 1863) and Muhammad Safdar Abbasi v. Amir Yar Malik and three others (2004 SCMR 1602).
11. In the case of Election Commission v. Javed Hashmi (supra) it was held that in matters which had the effect of vitiating the election process these should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court, and the only mode to challenge elections is by an election petition and that too, after the process of the election is completed, as otherwise Article 225 of the Constitution would be deprived of its meaning and content. All disputes arising out of elections should be postponed till the election are over so as not to dislocate the time schedule for the elections, and that such disputes should be raised after the elections by an election petition.
12. In Najaf Abbas's case (supra) it was held that controversy with regard to genuineness or otherwise of Degree of contesting respondent, involving resolution of disputed question of fact could not be undertaken in proceedings under Article 199 of the Constitution.
13. In Muhammad Safdar Abbas's Case (supra) it was held that conclusion regarding the controversial questions of fact relating to the genuineness of the degree of candidate was drawn in his favour in summary proceedings of scrutiny of nomination papers and further High Court having sought information from the concerned University tentatively satisfied itself about the correctness of the degree. High Court could not make any further probe into the matter in exercise of constitutional jurisdiction as the disputed questions of facts relating to qualification of a returned candidate could conveniently be adjudicated upon in an election petition.
14. In Nisar's case (supra) the educational documents were challenged and the issue though serious, the Court refrained from interfering with the process of election because if the Court rejected the nomination papers, then the candidate would be out of the elections which could be an irreparable loss. However, in case a candidate succeeded then the other candidate could always challenge his election through an election petition. Hence disputed facts cannot be agitated in constitutional jurisdiction.
15. In Aftab Shaban Mirani's case (supra) the dictum laid down is that generally in an election process the High Court should not interfere by invoking its constitutional jurisdiction in view of Article 225 of the Constitution. However, this is subject to an exception that where no legal remedy was available to an aggrieved party during the process of election or after its completion, against an order of election functionaries which was patently illegal or without jurisdiction and the effect of which is to disfranchise the candidate, he could press into service the constitutional jurisdiction of the High Court.
16. That in the case of Bibi Yasmin, the respondent No,5 in C.P. No,D-2500 of 2007 the learned counsel for the petitioner pointed out that the "strong register", was not produced before the Tribunal and instead another register was produced which was in the access of everybody, and without filing of any application for correction or modification of her name, the modification in her father's surname was made by the University officials, and he also contended that the respondent No,5 never appeared in the annual or supplementary examination, where as to prove such allegations evidence is required which cannot be done in the constitutional jurisdiction. Therefore, the proper though long procedure, has to be adopted, to make scrutiny regarding the verification of the BBA Degree of Syed Ali Bux Shah, which cannot be thrashed out here at this stage. Therefore, both the respondents Nos.4 and 5 are allowed to contest the elections scheduled to, be held in the year, 2008. However, the case is remanded back to the Election Tribunal for holding an inquiry about the genuineness or otherwise of B.B.A. Degree of Ali Bux Shah and of the educational testimonials/documents of Bibi Yasmin Shah and decide the validity and genuineness of the educational documents after recording the evidence of all the parties concerned within a period of four months. In case respondents Nos.4 and 5 return as successful candidates, their success would be subject to the decision of the issue raised about the genuineness of their educational documents.
17. In terms of the above we had disposed of all the three constitutional petitions vide our short order, dated 27-12-2007 and these are the reasons thereof. 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.