' HASNAT AHMAD KHAN, J.--- Through this writ petition legality and validity of the order, dated 11-12- 2007 passed by an Election Tribunal, Punjab Lahore High Court, Lahore, dismissing the election appeal filed by the petitioner against the rejection of his objections against the candidature of respondent No,2, by respondent No,1, has been challenged. Through the present petition validity of the order, dated 28-11-2007 passed by the Returning Officer, N.A.197 whereby the nomination papers filed by respondent No,2 were accepted, has also been called into question.
2. Succinctly, the facts giving rise to the instant petition are that respondent No,2, being an aspirant to become a Member of the National Assembly in the forthcoming General Elections, scheduled to be held on 18th February, 2008, submitted his nomination papers for Constituency N.A.-197, Rahim Yar Khan. However, the petitioner, being a rival candidate, filed objections against the candidature of respondent No,2 on two-pronged grounds. Firstly, that result card, issued by Islamia University, Bahawalpur, produced by respondent No,2 to claim his qualification as B.A., was fake one.
Secondly, respondent No,2, being a defaulter of Agricultural Development Bank, Sanjarpur Branch and M.C.B.' Bank, Main Branch, Sadiqabad, was disqualified to contest forthcoming elections. To further strengthen the said objections, it was claimed that for contesting the general elections, held on 10th October, 2002, respondent No,2 produced his Sanad, issued by a Seminary, namely, Jamia Rehmania but treating the said Sanad as not equivalent to B.A. Degree, his nomination papers were rejected. Interestingly enough, after the rejection of said nomination papers, the result card, on the basis of which respondent No,2 is desirous to contest forthcoming elections, was procured by him.
Respondent No,2 contested the said objections, which, however, did not find favour with the Returning Officer, NA-197. Consequently, the same were rejected and the nomination papers of respondent No,2 were accepted. The petitioner tried his luck by filing an Appeal No,58 of 2007/Lahore before the Election Tribunal, Punjab, Lahore. During the pendency of the said appeal, verification regarding the B.A. Degree of respondent No,2 was sought from Controller of Examinations, Islamia University, Bahawalpur. The representative of the said University appeared before the said Tribunal and submitted a report verifying the fact that respondent No,2 had passed B.A. Examination after appearing in the 2nd Annual Examination, 2002 as a private candidate, whereafter, the appeal filed by the petitioner was dismissed. The order of disinissal of the appeal as well as rejection of the objections by the Returning Officer, N.A.197 have been called into question through the instant petition.
3. While relying upon Article 8-A of the Conduct of General Elections Order, 2002, Sh. Muhammad Akram, learned counsel for the petitioner contended that respondent No,2 is not qualified to contest the following elections, as he does not possess a Bachelor Degree, which is the requirement of law. To augment his contention, learned counsel submitted that after the rejection of his nomination papers on 30-8-2002, by which he desired to contest elections on the basis of a Sanad issued by a seminary, respondent No,2 manoeuvred result card from Islamia University, Bahawalpur evincing him to be a graduate, that respondent No,2 submitted his admission form in the said University on the basis of a 12th Grade Diploma, issued by American School of International Academics, nevertheless, failed to produce an equivalence certificate issued by the Inter-Board Committee of Chairman but he was allowed to appear in the examination subject to the production of the said equivalence certificate. However, respondent No,2 failed to produce the same, therefore, firstly, the result card was withheld by the said University, which, however, was issued to him with a delay of about four months and, thereafter, the said University refused to issue a B.A. Degree in favour of respondent No,2; that admittedly, respondent No,2 is not in possession of a B.A. Degree, therefore, he is not qualified to contest the forthcoming elections but the said facts were not appreciated in true perspective firstly by the concerned Returning Officer and then by the Election Tribunal.
4. Conversely, Mr. Shahzad Shaukat appearing on behalf of respondent No,2 has emphatically and strenuously refuted the arguments put forth by the learned counsel for the petitioner. He contended that initially, the petitioner claimed that result card possessed by respondent No,2 was a fake document and, therefore, he cannot set up an altogether new case by submitting that respondent No,2 is not in possession of a valid B.A. Degree. In this regard, he has referred to a judgment, dated 23-1-2008 passed by a Full Bench of this Court in Writ Petition No,12133 of 2007. He further contended that in exercise of writ jurisdiction, this Court cannot substitute the findings returned by the Returning Officer which were affirmed by the Election Tribunal; that the constitutional petition against the acceptance of the nomination papers, being not competent, is liable to dismissal on this score alone. In this regard, he has placed reliance on the cases of Nawabzada Mir Balach Khan Marri through Attorney v. Mir Mohabat Khan Marri and 4 others PLD 2003 Quetta 42, Tanvir Ashraf v. Ch. Riasat Ali and 5 others 2004 YLR 659, Ch. Nazir Ahmed and others v. Chief Election Commissioner and 4 others PLD 2002 SC 184 and Najaf Abbas Sial v. Kh.
Hassan Wali Khan, Additional and District Judge/Returning Officer PP-83, Jhang and another 2003 CLC 1068 and a judgment, dated 17-12-2007 passed by a full Bench of this Court in Writ Petition No,12047 of 2007; that Article 8-A of the Conduct of General Elections Order, 2002 is not applicable in this case, because the said order was meant only for the conduct of elections held in 2002; that under section 99(cc) of the Representation of the People Act, 1976, any canaiaate desirous to contest general elections, is only required to show that he is a graduate.
' While elaborating his arguments, the learned counsel has submitted that according to the language of the said subsection candidates, who do not claim themselves to be a graduate on the basis of any degree recognized as equivalent thereto by University Grant Commission under the University Grants Commission Act, have only to show that they are at least graduates and keeping the said language into consideration, respondent No,2, who is in possession of a result card showing him to be a graduate; is indeed qualified to contest the forthcoming General Elections.
5. While exercising his right of rebuttal, Sh. Muhammad Akram, learned counsel for the petitioner rejoined and submitted that the law is not merely a static law, a written code but something that is interpreted keeping in mind the evolving ethos of a particular society and that the law is not as rigid as is commonly perceived, it evolves with time just as life's experiences shape the thinking of those who interpret it. To further clarify his contention, learned counsel contended that it is high time to check the surge of tendency to contest the elections on the basis of forged degrees and by practising fraud on law; that this Court cannot remain a silent spectator to watch and allow the candidates to contest the elections on the basis of forged degrees of Bachelor of Arts; that in very recent past, a Full Bench of this Court, while accepting a Writ Petition No,12011 of 2007 filed by a candidate, namely, Rao Sikandar Iqbal against the order of acceptance of nomination papers of his rival candidate quashed the same vide a judgment, dated 26-12-2007; that the said order was challenged before the Honourable Supreme Court but the order of this Court was maintained by way of dismissal of C.P. No,1 of 2008. So, the latest view of the Honourable Supreme Court is that a writ petition against the acceptance of nomination papers can be validly issued.
6. Heard. Record perused.
7. First of all we would like to take up a preliminary objection raised by learned counsel for respondent No,2 against the maintainability of this writ petition through which the order of acceptance of nomination papers filed by respondent No,2, .Has been challenged but in view of the latest judgment rendered by this Court, which was affirmed by the Honourable Supreme Court in Rao Sikandar's case (supra), the objection raised by the learned counsel for respondent No,2 is spurned. A perusal of judgment passed by this Court in Rao Sikandar's case would reveal that in the said case Chaudhry Muhammad Arif Hussain, whose nomination papers were rejected by this Court, while accepting the writ petition, though he was in possession of a B.A. Degree but his F.A.
Certificate was found forged and on the basis of the said forged certificate, his nomination papers were rejected. Here it would be pertinent to reproduce paragraph No,9 of the said judgment, dated 26-12-2007, which reads as under:-- "(9) Now adverting to the argument advanced by the learned counsel for respondent No,1 that in view of the judgments referred to by him the writ petition was not maintainable, suffice it to say that where an illegality is apparent on the face of the record as in the instant case, this Court cannot close its eyes and refuse interference solely on some technicalities. The Honourable Supreme Court of Pakistan in the case of Mst. Arshad Bibi (deceased) through Mst. Fatima and others v. Maula Bakhsh (deceased) through Mst. Ghulam Safoor and others 2003 SCMR 318 has held that technicalities should not be allowed to create a hurdle in the way of substantive justice and that denial of relief to a party on technicalities would under no circumstance advance the cause of justice."
' Besides, under the law, this Court is debarred from holding a detailed inquiry in its writ jurisdiction, but in this case the matter can be resolved without holding any detailed inquiry, therefore, on this ground also the objection regarding the maintainability of this petition is repelled.
8. As far as the merits of the case are concerned, we would like to reproduce Article 8A of the Conduct of General Elections Order, 2002, which reads as under:-- "8A. Educational qualification for a member of Majlis-e-Shoora (Parliament) and a Provincial Assembly.--- Notwithstanding anything contained in the Constitution of Islamic Republic of Pakistan 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act 1976 (LXXXV of 1976) or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974)] or any other law for the time being in force]."
' Similarly section 99(cc) is also reproduced hereunder:-- "99. Qualifications and disqualification.--- (1) .............................
(a) .....................................................................
(b) .................................
(c)
(cc) 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 Grants Commission Act, 1974 (XXIII of 1974), or any other law for the time being in force)."
9. Adverting to the objections on the basis of Article 4 of the Conduct of General Elections Order, 2002, raised by the learned counsel for the respondent that Conduct of General Elections Order, 2002 was only meant for election held in 2002, we do not see eye to eye with him. Mere perusal of the preamble of the said order would reveal that the same was not meant only for the election of 2002 but this is applicable for all intents and purposes to the elections held in the future also.
Furthermore, the said order was validated by 17th Amendment made in the Constitution. Now the language of Article 8-A leaves no doubt in our minds that for contesting elections, a candidate is not only required to show that he has passed B.A. Examination but to evince and manifest the said fact, he should be in possession of a Bachelor Degree. Even for the sake of arguments, it is conceded that only section 90(cc) of Representation of the People Act, 1976 would apply, even then a candidate should be at least a graduate possessing a Bachelor Degree. According to the learned counsel for respondent No,2, the candidate has only to show that he is a graduate. Even then we will have to advert to the definition of graduate. One cannot be treated as a graduate without being in possession of a Bachelor Degree, for which we are relying upon the definition of graduate, as given in the New International Webster's Comprehensive Dictionary of the English language, Ballentine's Law Dictionary and Oxford English Dictionary, which is respectively, reproduced hereunder:--
(i) Grad-u-ate (graj'oo-at) v. -at-ed, -at-ing v.t. 1 To grant a diploma or degree to upon completion of a course of study, as at a college.
(ii) graduate. Noun: A person who has honourably passed through that prescribed course of study and received a certificate or diploma to that effect.
(iii) graduate, v. Add:
3. To complete a high school course and receive a diploma.
10. Now to see, as to whether respondent No,2 is in possession of a degree, the record produced by Saeed Ahmed Baloch,. Representative of Islamia University, Bahawalpur has been perused. The record reveals that while submitting Admission Form, respondent No,2 had relied upon a Diploma issued by American School of International Academics and Equivalence Certificate issued by the University of the Punjab. While entertaining his Admission Form, it was observed by the concerned officer of the University as under:-- "Please ask the candidate to provide the I.B.C.C. Letter for eligibility of examination. However, roll number may be issued provisionally."
' In response to the said noting, respondent No,2 once again produced an Equivalence Certificate, issued by the University of Punjab. Under the law, University of the Punjab was neither competent nor required to issue such Equivalence Certificate and the same could not be treated as a valid Equivalence Certificate. Therefore, once again Deputy Controller Examination intimated respondent No,2 to provide the Equivalence Certificate from Inter-Board Committee of Chairmen (I.B.C.C.) but it appears that uptil now, respondent No,2 has failed to provide said certificate. After hearing all the parties on this point and going through the relevant record, two things are admitted on all ends; one, "that despite the expiry of a period of about five years after allegedly passing the examination of B.A. The University has not issued a B.A. Degree to the said respondent, on whose behalf, it has been admitted before us that so far he is not in possession of a B.A. Degree. Similarly, this is also an admitted fact that respondent No,2 is neither in possession of an Equivalence Certificate issued by the concerned Committee, i,e, Inter-Board Committee of Chairmen nor has the same been provided to the Islamia University, Bahawalpur. Confronted with this difficulty and proposition, learned counsel for respondent No,2 has come up with the argument that Inter-Board Committee of Chairmen has granted the recognition to American School of International Academics, Lahore vide letter, dated 3-3-2004, issued by Rana Muhammad Khawar Pamin, Research Officer, which further narrates that the graduates of the said institution would be granted equivalence as per criteria, which has already been provided to said institution. To augment his contention, said learned counsel has further relied upon a letter dated 13th September, 2004 signed by Additional Secretary, which reflects that worthy Governor of Punjab had granted equivalence to American School International Academics (Asia). On the basis of said documents, learned counsel has submitted that the Diploma of 12th Grade, issued by the said institution, per se, is equivalent to F.A.
Certificate but we are not persuaded with the arguments raised by the said learned counsel, inasmuch as, here the question is that the petitioner as an individual is not equipped with the equivalence certificate, issued by Inter-Board Committee of Chairmen and for the same reason, the University has not issued a B.A. Degree to respondent No,2. It is not the case of respondent No,2 that the preparation of the B.A. Degree is in the pipeline. As a matter of fact, while treating 12 Grade Diploma possessed by respondent No,2 not equivalent to F.A. The concerned University has impliedly refused to issue a degree in favour of respondent No,2 despite his purportedly passing the B.A. Examination, five years ago.
11. As far as the contention of the learned counsel for respondent No,2 that the petitioner cannot be allowed to object against the candidature of respondent No,2, on the improved objections is concerned, we have observed that, while framing the relevant law, the Legislature couched section 99 of the Representation of People Act, 1976 in a manner to provide qualifications and disqualifications simultaneously for contesting the general elections. As far as requirement of possessing a Bachelor's degree, is concerned that falls within the first limb of section 99, which provides the qualifications for contesting general elections. So to contest the general elections, one has to show positively that he is duly qualified for the same, meaning thereby that the burden of proof to qualify for contesting the election heavily and mainly lies on the candidate and it is not so heavy on the objector, who denies such qualification, therefore, the objection raised by learned counsel for the respondent on this ground, does not hold water hence the same is also repelled.
12. For what has been stated and discussed above, we are of the view that allowing respondent No,2, who not being in the possession of a B.A. Degree is not qualified to contest the election, would amount to disfranchise the whole constituency and in case he is allowed to contest the election, the votes cast in his favour would tantamount to throwing away and wasting of the same.
Consequently, we have no doubt in our mind that both the forums below failed to appreciate the law and the facts in their true perspective while allowing respondent No,2 to contest the forthcoming elections.
13. Resultantly, the instant writ petition is accepted and the order dated 11-12-2007 passed by the Election Tribunal, Punjab, Lahore High Court, Lahore and order, dated 28-11-2007, passed by Returning Officer, i,e, respondent No,1, are hereby quashed and the nomination papers filed by respondent No,2 stand rejected. The parties shall bear their own costs. A copy of this order shall immediately be transmitted to respondent No,1 for deleting the name of respondent No,2 from the array of contesting candidates.