HAMID FAROOQ DURRANI, J.---Factual background of the petition in hand prompts that the petitioner filed his nomination papers as a candidate to contest the general elections, 2008 for Provincial Constituency No,PF-69, Tank, N.-W.F.P. To his nomination objection petitions were submitted by the respondent No,1 Malik Gulistan Khan as well as one Engineer Dawar Khan Kundi before the learned Returning Officer concerned. The said objections were rejected through order, dated 3-12-2007 and nomination papers of the petitioner were accepted.
Against the acceptance of nomination papers pertaining to the petitioner, only Malik Gulistan Khan, respondent No,1 filed an appeal before the learned Election Appellate Tribunal, Peshawar which was allowed on 11-12-2007 and it was held that the petitioner was not in possession of valid degree equivalent to B.A. From a recognized University/Institution, therefore, he was not qualified to contest the forthcoming elections. Aggrieved from the findings of the said Tribunal, the petition in hand was brought before this Court on the grounds that the petitioner was a bona fide student of Al-Khair University (AJK) and had passed the examination requisite for awarding of the Bachelor Degree (Bachelor of Information Technology). He was, therefore, fully eligible for contesting the, elections by meeting the requirements as contained in Article 8(a) of the Conduct of Erections Rules, 2002 read with other relevant provisions of law.
' On 17-12-2007, a miscellaneous application was filed by the petitioner with the prayer for bringing on record some Additional documents coming to the hands of the petitioner which were relevant for the purpose of decision in the instant matter. Another application of similar nature was filed on 2-1-2008 whereby the certified copy of Degree of Bachelor of Information Technology bearing serial No,021504, awarded by Al-Khair University (AJK) to the petitioner, was sought to be made part of the record. This Court on 3-1-2008, on the request of special attorneys for the contesting parties, summoned Deputy Controller of Examinations, Al-Khair University (AJK), Islamabad along with the relevant record for today.
2. At the time of hearing of petition in hand, the attorney for respondent filed reply of C.M.3 of 2008 and also advanced certain oral objections. He contended that the Degree of Bachelor of Information Technology' produced as by the petitioner and claimed have been awarded to him by Al-Khair University (AJK), was for the Academic Session 2001-2003 while the petitioner was not available in the country during the said period. An Accountability Reference was filed against him on 28-8-2003 while his house was raided on 6-6-2001 and 7-6-2001. On the said occasions, the petitioner was reported to have gone abroad. He was convicted on 9-1-2001 by the Accountability Court at Peshawar in absentia. The petitioner, however, appeared before the apex Court on 28-8- 2003 for protective bail. In the mentioned circumstances, in his opinion, the award of Degree in favour of the petitioner was not free from doubts. The said attorney did not, however, grudge the genuineness or authenticity of the Degree itself. He further contended that the petitioner, having been considered ineligible by the learned Election Appellate Tribunal, was debarred from producing the Bachelor Degree before this Court in a matter under constitutional jurisdiction. He relied on judgments reported through 2007 MLD 146, PLD 2006 Lah. 198 and PLD 2003 Lah.106.
3. On the other hand, the attorney for the petitioner stated that the petitioner had completed his first semester in March, 2000 while second semester was completed in September/October, 2000.
He, however, left the country after. The second semester and appeared for completion of third semester in November, 2003. The fourth semester was completed by the petitioner in April, 2004. He was duly issued Detail Marks Certificate by the University and requisite acknowledgments of result etc. By the concerned institution i.e. College of Global Technologies, Rawalpindi Campus.
The attorney for petitioner also referred to the operative part of judgment recorded by learned Election Appellate Tribunal and stated that the criterion observed by it for declaring the petitioner as ineligible was in terms that he was not in possession of a Bachelor's degree in his favour. Now that the petitioner was awarded the requisite Degree, he was eligible to contest the forthcoming elections.
4. Learned Advocate-General, N.-W.F.P., who was put on notice by this Court through order dated 18-12-2007, appeared and at the outset stated that by virtue of award of Bachelor Degree in favour of the petitioner he had legally become entitled to participate in the forthcoming general elections.
He, however, indicated his reservation in terms that the record produced by the Controller of Examinations. Al-Khair University (AJK) did not establish nexus with the original Degree produced before the Court by the attorney of the petitioner.
5. We have gone through the entire record appended with the writ petition, brought before the Court through miscellaneous applications, original Degree for Bachelor of Information Technology issued by AlKhair University (AJK) and the certified copies of record maintained by the University in respect of the Degree so issued as produced before us by Mr. Muhammad Hussain, Deputy Controller of Examinations, AlKhair University (AJK), Islamabad. It is noted that the petitioner was not in possession of a Bachelor's Degree at the time of scrutiny of his nomination papers by the learned Returning Officer, however, the documents supporting his claim of having graduated were brought before the learned Returning Officer. The said Returning Officer, in pursuance to the objections by the respondent No,1 and other objector, inquired into the matter and required the authentication of the documents relied upon by the petitioner. The said documents were verified and it was reported that the petitioner had passed BIT courses and was accordingly issued DMC No,239 regarding all the semesters. The registration number of petitioner was also conveyed to the learned Returning Officer. Resultantly, the nomination papers were accepted by the learned Returning Officer. The learned Election Appellate Tribunal was on the other hand, pleased to hold that as no degree was ever issued to the petitioner nor the same was produced by him at the time of scrutiny of nomination papers, he was not qualified to contest the elections keeping in view the provision of Article 8(a) of the Conduct of Elections Rules, 2002.
At present, the petitioner has brought before the Court the original Degree of BIT and other relevant record which shows that the Degree in question was prepared in favour of the petitioner by Al- Khair University (AJK) on or about 3-12-2007. Prima facie, it was not possible for the petitioner to have produced the original Degree or copy thereof before the learned Returning Officer on the same date. Besides, it is also noted that the petitioner has stated on affidavit that he was delivered the requisite Degree through application filed on 2-1-2008 (C.M.2 of 2007), after the decision of appeal by the learned Election Appellate Tribunal.
6. In the circumstances stated above, we, without entering into factual controversy regarding the availability of petitioner in the country on the relevant dates or otherwise, allow the petition in hand and hold that apparently the petitioner is holder of a Bachelor's Degree (BIT) certified by the Higher Education Commission, Government of Pakistan to have been issued by a Chartered University. He, therefore, complies with the mandatory educational qualification required by the law in order to qualify for contesting the forthcoming general elections. Resultantly, the impugned findings of learned Election Appellate Tribunal are set aside.
We would like to add here that the exception taken by the learned Advocate-General, N.-W.F.P.
Regarding nexus of Degree in question with the petitioner stands answered by virtue of application form for issuance of Degree, submitted by the petitioner to Al-Khair University (AJK) through the concerned College. The said form, attested copy whereof was produced by the Deputy Controller of Examinations does not only contain the particulars of petitioner including his parentage and postal address but also bears his photograph. Thus, there appears a clear link between the petitioner and the Degree issued by Al-Khair University (AJK) bearing Sr.No,021504.
It is also noted that the case-law relied upon by the respondent No,1 would not be attracted to the facts of the present case as no matter, requiring recording of evidence, has been undertaken for settlement by this Court through the petition in hand.
Since the writ petition stands accepted, C.M.3 of 2008 has become infructuous in the circumstances which is accordingly disposed of.