' Petitioner through filing instant petition, has voiced his grievance that respondent No,6, a returned candidate, has declared his qualification as M.A. (Alshahadat-tul Aalmia) from Jamia Rizwia Sardarul Maddaras, which on verification, was found not to have been issued by Tanzeem-ul- Madaris, Ahal-e-Sunnat, Pakistan and his claim that he is a graduate is false. His claim to hold public office is under no. Authority of law.
2. Learned counsel for the petitioner has contended that the Sanad, besides being forged, is not issued by an institute, which is recognized by the Higher Education Commission of Pakistan. While referring to the case of Sanaullah Khan and others v. District Returning Officer, Mianwali and others PLD 2005 SC 858, it is contended that the Sanad by an unrecognized Madrasa, has no value.
Learned counsel added that respondent No,6 on the basis of the degree (Sanad) in question, applied for B.A. Examination and was issued Roll No,26536, but his result was not declared due to "unfair means' case against him". Learned counsel submitted that respondent No,6 is not eligible to contest and to hold office of Member National Assembly and this fact of his disqualification, is being brought to the notice of this Court, so that it may be inquired from respondent No,6 that under which authority of law, he purports to hold public office/Member, National Assembly. Learned counsel has submitted that writ of quo-warranto, is inquisitorial proceedings and this Court in its constitutional jurisdiction, can take a suo motu action and issue a writ of quo-warranto. Learned counsel supported his contention by referring to the case of Hafiz Hamdullah v. Saifullah Khan and others PLD 2007 SC 52 and Lt. Col. Farzand Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, Lahore PLD 1970 SC 98.
3. Learned Law Officer, on Court's call, has appeared and submitted that petition, at this stage, is not maintainable. The notification has not, as yet, been issued, therefore, a writ of quo-warranto is premature.
4. Heard learned counsel for the petitioner, learned Law Officer and record perused.
5. The petitioner filed his nomination papers and certain objections were raised by Jamshaid Ahmad Khan, a contesting candidate and Muhammad Asghar. The objection petition was rejected by the Returning Officer vide order, dated 28-1-2008. (Detailed order of the Returning Officer, has not been filed by the petitioner with this petition). No material is available on record to show that an appeal against acceptance of nomination papers was filed by anyone. Petitioner has, admittedly, not filed any objection on the nomination of respondent No,6. Order of Returning Officer, accepting the nomination papers, is assailable in appeal. A candidate has the right to prefer an appeal against the decision of the Returning Officer against the acceptance of nomination papers, as envisaged, under the provisions of section 14(5) of the Representation of the People Act, 1976 (Act No,LXXXV of 1976). Similarly, a voter has the right to bring the factum of disqualification of a candidate by supplying information or material before a Tribunal, constituted under the Act of 1976. The Tribunal, on the basis of such information or material, can call upon such candidate to show cause, why his nomination be not rejected. The Tribunal, if satisfied that the candidate suffers from any disqualification, can reject the nomination papers of such candidate.
6. The Tribunals constituted under section 14 of the Act of 1976, were required to decide all the appeals against acceptance or rejection of the nomination papers by the Returning Officers, before 15-12-2007. Any appeal, which remains undecided, with the target date, is to abate. This notification conveys the intention that the question of acceptance or rejection of nomination papers, has to be completed before 15th of December, 2007, so that the voters must know about the candidates in their constituency. The candidature of respondent No,6 was not a secret matter.
It was open to every one and the question of scrutiny of a candidate was widely publicized.
Petitioner had not raised objection at the relevant time.
7. Another opportunity was available to the petitioner, to approach the Tribunal in appeal. The petitioner has not availed the remedy, available under law. The failure of the petitioner to file appeal against the acceptance of nomination papers of respondent No,6, for various reasons, is fatal and the same is not open to exception in the constitutional petition, at this belated stage.
Firstly, candidature of respondent No,6 is not a secret matter. Secondly, objection to nomination and appeal against acceptance of nomination papers, is commonly known to everyone. Specially to those who are interested in the nomination of a candidate. Thirdly the process of election, like scrutiny of nomination, has to be completed within a time frame. Fourthly, remedy of appeal before the Tribunal is more adequate and convenient, if judged with reference to time, speed and convenience of obtaining relief, comparing it with that of invoking the constitutional jurisdiction of this Court. And lastly that law (Act LXXXV of 1976) has provided a procedure. Interference in constitutional jurisdiction, will render the whole process of scrutiny and nomination of a candidate, as an exercise in futility.
8. Now, at this stage, when the elections have been held and a formal notification is close on heels, the whole process of election cannot E be set at naught. Section 52 of the Representation of the People Act 1976 needs mention which is reproduced hereunder:-- "52. Election petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (hereafter in this Chapter referred to as the petitioner)."
9. The election of respondent No,6 can be called in question only through an election petition, which provides complete procedure for determination of election disputes. Bar of Article 225 of the Constitution F and section 52 of the Act of 1976, is meaningful to rest the determination of lis or election dispute, with the Tribunal, which has been constituted for that purpose.
10. There is another angle to view the instant controversy. A direction in a writ of quo-warranto can be issued to the person, who is either holding or purporting to hold a public office. No notification as to the return of respondent No,6 has been issued, therefore, it cannot be claimed that respondent No,6 is holding a public office, so far purporting to hold a public office is concerned.
" Purporting" as defined in Law Lexicon means "when power is given to do something" or "to have a certain effect". Similarly, term "purporting" as defined in Stroud's Judicial Dictionary, means "an act done in pursuance of a power or a thing or a professed exercised". The respondent can assume the public office, only when he is notified, He can act as M.N.A., only when there is a notification. On the basis of consolidation of results by the Returning Officer, it cannot be said that respondent No,6 is purporting to hold a public office.
11. Respondent No,6 until and unless, is not notified as a returned candidate, cannot profess or claim to be a returned candidate, therefore, a quo-warranto, at this stage, is premature.
12. Viewing the case of the petitioner from any angle, this petition is not maintainable and is accordingly dismissed.