' HAMID FAROOQ DURRANI, J.--- We take up instant matter along with Writ Petition No, 67/2008 (Muhammad Ayaz Afridi v. Niaz Muhammad and others) for decision as eligibility of the petitioner herein, to contest the elections to the Provincial Assembly, is the subject matter of both the petitions.
2. The petitioner, admittedly, filed nomination papers as a candidate for forthcoming general election from Constituency of PF-10 which were accepted on 27-11-2007. After expiry of prescribed period for filing of appeals before the Election Appellate Tribunal N.-W.F.P. And the last date for decision of the said appeal, the concerned Returning Officer issued Form-V under Rule-7(1) of the Representation of the People (Conduct of Elections) Rules, 1977 on 15-12-2007. The name of the petitioner appeared at S.No,6 of the said Form as one of the eligible candidates for concerned Constituency. However, upon an application addressed to the Election Commission, the matter of qualification of petitioner was re-agitated. To look into the allegation of the applicant, who is respondent No,3 in the instant matter and the petitioner in the connected Writ Petition (No,67/2008), an enquiry was conducted by the Returning Officer in pursuance to the orders of the District Returning Officer, Peshawar. It was resultantly found that the Degree relied upon by the petitioner, as evidence of his Graduation, was fake. It was, however, noted by the Returning Officer at the time of submission of report that the time/stage for agitating the matter before him had already lapsed, therefore, the matter was to be re-agitated before the appropriate forum. The said report was forwarded by the District Returning Officer to the Election Commission while on the other hand, the Returning Officer concerned issued an amended Form-V regarding the constituency of PF-10 Peshawar on 29-1-2008. Needless to mention that the name of the petitioner was omitted from the said amended list of contesting candidates.
3. During the intervening period between issuance of Original Form V and the amended one, respondent No,3 Muhammad Ayaz Afridi filed the connected Writ Petition No,67 of 2008 before this Court. The relief sought through the said writ petition was in terms of declaration by this Court to the effect that the Degree of Bachelor of Arts awarded to the petitioner herein was fake and bogus.
Besides, petitioner was required through the petition to be restrained from contesting the election of relevant Constituency. It was further prayed that the name of the petitioner herein be ordered to be deleted from the list of contesting candidates for the said Constituency.
4. We have heard the learned counsel for the petitioner and respondent No,3, petitioner in Writ Petition No, 67 of 2008 in both matters, and have also gone through the available record. Mr, Sharifullah, Assistant Election Commissioner has also been heard.
5. The grievance of the petitioner is that once the Returning Officer had issued Form-V under Rule 7 (ibid), he became functus officio, therefore, could neither receive any application/complaint nor enquire into the matter in furtherance of said application/complaint regarding the eligibility/ineligibility of a candidate.
In the instant matter, admittedly, the application purportedly moved by the residents of the area (though not signed) was filed on 24-12-2007 which was followed by application of respondent No,3 herein filed on 26-12-2007. The process of nomination, on the other hand, was completed by the concerned Returning Officer on 15-12-2007 by issuing Form-V containing name of the petitioner as one of the candidates, also showing his respective election symbol. It is pertinent to note here that neither respondent No,3 nor any other person, concerned with the Constituency, filed any appeal to the Election Appellate Tribunal within the prescribed time. Admittedly, no objection qua genuineness of the degree held by the petitioner was raised at the relevant time of scrutiny of nomination papers. The representative of the Election Commission, when faced with the proposition, also could not point out any legal provision which could empower the Returning Officer or the District Returning Officer to interfere in the nomination of a candidate after issuance of Form-V.
6. It is also equally pertinent to note that admittedly all the proceedings after 15-12-2007 i,e, the date of issuance of Form-V. Was taken without notice and at the back of the petitioner. Prima facie, the petitioner was condemned unheard.
7. We have also noticed that the material collected by the Returning Officer during the enquiry in furtherance of objection by respondent No,3, transpires that there was conflicting letters/certificates issued by the Controller of Examination University of Peshawar vide No,1656/Secy, dated 27-12-2007 and No,43, dated 1-1-2008 issued by Assistant Registrar, University of Peshawar. These certificates on one hand speak of the degree in dispute being fake and bogus while, on the other, disclose it to be genuine with some clerical mistake regarding year of examination. The settlement of this controversy would essentially require recording of evidence.
' We would, therefore, refrain from embarking upon resolution of factual aspects of the matter while exercising our Constitutional jurisdiction at this stage.
8. In the light of above, we are of the view that neither the Returning Officer/respondent No,2 nor the District Returning Officer/respondent No,1 was vested with jurisdiction to entertain any objection/application regarding disqualification of a candidate whose nomination papers were already scrutinized and accepted which remained unquestioned before the Election Appellate Tribunal. The said acceptance also having been culminated into issuance of final list of candidates showing their respective election symbols. Reliance in the above regard is placed on the case of Ghulam Mustafa Jatoi reported as 1994 SCM R 1299.
' Accordingly, we allow Writ Petition No,116/2008 and declare the proceedings undertaken by respondents Nos.2 and 3 after 15-12-2007 and Form-V issued by Returning Officer of Constituency of PF-10 under Rule-7 (1) of the Representation of the People (Conduct of Elections) Rules, 1977 on 29-1-2008 as without lawful authority and of no legal effect upon the rights of the petitioner Niaz Muhammad. In the wake of the above, Writ Petition No,67 of 2008 is dismissed being meritless.
' We, however, observe that the contents of instant judgment shall not cast effect upon the proceedings, if any, undertaken by either of the parties at post election stage.