1. ' NADEEM AZHAR SIDDIQI, J.---By this appeal the appellants have challenged the acceptance of nomination paper of respondent No,2 for the reserved seats of Minorities in the Provincial Assembly Sindh.
2. ' The allegation against the respondent No,2 is that he is not graduate and his B.A. Degree is forged and based upon misrepresentation and fraudulent acts of the respondent No,2.
3. ' The learned counsel for the appellants submits that the respondents No,2 has used the documents of another student Mukesh Kumar son of Bhagwan Das, surname Bansari born in 1980 at Thatta and his CNIC number is 414084608480-3, whereas the surname of respondent No,2 is Chawla, born in 1974 at Jacobabad and his CNIC number is 423012283411-5. He has referred to Annexure "C/5" available at page 41 of the file and submits that this is the form of another student Mukesh Kumar, which was replaced from the record of University with the forged form the respondents No,2. He from the said form has referred to the details of Matriculation Certificate which are Seat No,134515, Year 1996, Government High School Sujawal from Board of Intermediate Education and also referred to NIC number which in the form is 495-80-066570. He then referred to Annexure "D/5" at page 89 of the file, which is the form of respondent No,2 and referred to the particulars of matriculation given in the form and submits that details are same as given in Annexure "C/5". The learned counsel then referred to Annexure "B/1" annexed with the Commissioner's Report which is the copy of Result Sheet of Classes IX and X and submits that against Seat No,134515 the name of student was written as Mukesh Kumar son of Bhagwan Das, Bansari, 22-2-1980. Whereas in front of the name of candidate and his father's name the word "Chawala" and Hindu are written in handwriting. He then referred to Form of Board of Intermediate and Secondary Education of Mukesh Kumar son of Bhagwan Das, surname Bansari with Seat No,134515 and date of birth as 22-2-1980. He then referred to signatures of the candidates on the Form and signature of respondent No,2 on its old NIC No,402-74- 004902 and submits that both the signatures are different. The learned counsel submits that from comparing two forms with each other, it is established that in Matric some other Mukesh Kumar was appeared and not the respondent No,2. He then referred to various Forms of B.A. Part-II and submits that in the Form of respondent No,2 in rubber stamp of college the word "Thatta" is in bold letters, whereas in other Forms the word "Thatta" is in small letters which clearly shows that the Form is forged and manoeuvred. He further submits that the nomination paper was erroneously accepted without considering the forgeries made by the respondent No,2 and that the respondent No,2 suffers from basic qualification. He further submits that the Election Tribunal under subsection (5-A) of section 14 of the Representation of the People Act, 1976, is fully empowered to enquire into the matter and to disqualify the respondent No,2 from contesting the election. The learned counsel has relied upon the following reported cases:--
(1) Abdul Khaliq v. Maulvi Muhammad Noor (PLD 2005 SC 962);
(2) Ayatullah Dr. Imran Liaquat Hussain v. Election Commission of Pakistan, Islamabad (PLD 2005 SC 52);
(3) Muhammad Qasim v. Duty District Returning Officer, Additional District Judge, Muzaffargarh (2006 CLC 1490);
(4) Haji Khuda Bux Nizamani v. Election Tribunal (2003 MLD 607); and
(5) Malik Muhammad Taj v. Shabbir Badshah (2004 CLC 842).
4. ' The learned counsel for the respondent No,2 has raised objection with regard to the maintainability of the appeal and submits that only a candidate can prefer the appeal and admittedly, the appellants are neither the candidates nor electors and cannot prefer this appeal.
5. He further submits that power of Tribunal is limited to the extent of disqualification of a candidate.
6. He further submits that the appeal filed by the appellant cannot be treated as information or material brought to the knowledge of the Tribunal as no showcause-notice has been issued to the respondent No,2 calling upon him to show cause why his nomination paper may not be rejected.
7. He further submits that complicated and disputed questions of the fact cannot be decided while holding summary inquiry. The learned counsel has relied upon the following reported cases:--
(1) Ch. Nisar Ali Khan v. Ghulam Sarwar Khan (2003 CLC 442) and
(2) Nawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri (PLD 2003 Quetta 42).
8. ' We have called to Controller Examinations, University of Sindh, who produced the original examination forms for the year 1999. He after going through the Degree submits that the same is not an original degree and the same is duplicate, which was issued at the request of respondent No,2. He, however, confirmed that the endorsement made on duplicate set of Degree was made by the University on receipt of correction letter from Board of Intermediate & Secondary Education, Hydera bad ' We have also called the Controller of Examinations, Board of Intermediate and Secondary Education, Hyderabad, who produced the original Outward Register and pointed out that in the correction letter purportedly issued by the Board, the reference number appearing is of some other letter. He has totally denied that any correction has been made in the record of the Board and declared the said letter as forged. He further submits that two Marks Certificates and one Certificate was issued by the Board, but after the name of candidate word "Chawla" was unauthorizedly written as in their record surname of the student was written as "Bansari".
9. ' The respondent No,2 has produced two original Marks Certificates of Part-I and Part-II of Intermediate.
10. ' We have heard the learned counsel for the parties, perused the record made available before us and the case laws cited at bar.
11. ' The allegation against the respondent No,2 is that he is not a graduate and his degree is result of forgery and fraudulent acts. Admittedly, the surname of the respondent No,2 is Chawla and he born at Jacobabad in 1974. It is also an admitted position that all the documents in possession of the respondent No,2 are the duplicates of the originals. The respondent No,2 has failed to explain why in the Forms of Parts-I and II, he mentioned his surname as Bansari and thereafter, got the same corrected as Chawla.
12. ' We first deal with the legal objection raised by Mr. Shahenshah Hussain regarding the maintainability of appeal. It is true that under section 14 (5) of Representation of the People Act, 1976, only a candidate can file appeal. However, under section 14(5A) the Tribunal on the basis of information or material brought to its knowledge call upon the candidate to show cause why his nomination paper may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter, or has had a loan written off or suffers from any disqualification, it may reject the nomination papers. The contention of Mr. Shahenshah Hussain appears to be correct that mere issuance of notice of appeal is not sufficient and in substantial compliance of the provision of law show-cause-notice is necessary which cannot be issued due to very short of time given to this Tribunal to dispose of the appeals. In the reported case of Haji Khuda Bux Nizamani v. Election Tribunal & Others (2003 MLD 607) the learned Division Bench of this Court has held as under:-- ' The second objection, however, appears to have more merit. It is no doubt correct that substantial compliance with the principles of natural justice was effected when notice of the appeal was given to the petitioner. Nevertheless with profound respects it ought to have been kept in view that the Honourable Supreme Court has consistently held that when notice to a party is required by way of an express provision of law as distinguished from a mere principle of natural justice strict compliance ought to be made and mere substantial compliance might not be sufficient. We are constrained to record these observation in view of the fact that adequate documentary material did not appear to come to the notice of the learned Tribunal in the absence of a proper show- cause notice."
13. ' The appeal under section 14 (5A) is to be decided summarily and the powers need to be cautiously exercised after the Tribunal is fully satisfied that the candidate was actually a defaulter or otherwise disqualified from contesting election. The points raised by Mr. Farogh Naseem cannot be decided summarily without allowing the parties to lead evidence. The Controller of Examinations, University of Sindh has acknowledged that the Degree has been issued by the University to the respondent No,2. In view of the statement of Controller the contention of Mr. Farogh Naseem that the Form of other student was replaced with the Form of respondent No,2 cannot be appreciated without any detail evidence. From the perusal of particulars of respondent io.2 and other Mukesh Kumar, a reasonable doubt is appearing but the same cannot be decided in this summary proceedings and the parties are left to agitate the same in the regular proceedings. The respondent No,2 holds a Bachelor Degree which is still intact. In the summary proceedings the degree cannot be annulled by this Court. In the similar type of matter a learned Division Bench of Lahore High Court in the case of Ch. Nisar Ali Khan v. Ghulam Sarwar Khan (2003 CLC 442) has held as under:-- ' "Although in the college record the parentage of Ghulam Sarwar Khan is different than that of respondent Ghulam Sarwar Khan yet without a detailed scrutiny, recording of evidence, hearing the other Ghulam Sarwar Khan son of Abdul Hameed Khan, examining the F.A . Certificate submitted by respondent before the University for B.A. Examination, it would not be fair to give a finding which has twofold penal consequences i.e, disqualification for Election and criminal offence. If the respondent is allowed to contest the election and even if he succeeds the appellant would still have remedy to challenge the election by way of an Election Petition and by then the Vice-Chancellor of the concerned University would have passed some order on appellant's application and the Election Tribunal would be in a better position to record evidence and pass an appropriate order. On the other hand if this appeal is allowed, it would oust him from the election arena which would be an irreparable damage."
14. ' For the above reasons the appeal was dismissed vide short order, dated 14-12-2007.