' KH. IMTIAZ AHMAD. J:----This Election Petition has been filed under sections 52, 99 of the Representation of the People Act, 1976 (Act. No, LXXXV of 1976) challenging the election of respondent No,1 namely Yasir Raza.
2. The facts forming background of this Election Petition are that petitioner and respondents contested the general election of 2008 of the Provincial Assembly of Punjab in constituency No,PP- 13 Rawalpindi XIII. After the election, the Election Commission through Notification No,F.2(4)/2008- Cord declared respondent No,1 Yasir Raza to be the returned candidate securing 23415 votes while the petitioner obtained 20486 votes. The election of respondent No,1 has been challenged by the petitioner on the ground that his matriculation and intermediate certificates were doubtful and that respondent No,1 has never appeared as a candidate for the examination of Intermediate, annual 1995. Similarly his graduation degree was challenged. The entire grounds are mentioned in para-4 of the petition. It was in this background that it was prayed that election of respondent No,1 be declared as void ab initio and the petitioner be declared to have been duly elected as Member for PP-13, Rawalpindi XIII.
3. The petition was resisted by respondent No,1 only, who filed written reply wherein besides preliminary objections, on merits, the allegations contained in the main petition were also denied.
4. Out of the pleadings of the parties, the following issues were framed:--
(1) Whether the petition is liable to be dismissed for non-verification of the petition and documents? OPR
(2) Whether the petitioner is estopped by his words and conduct to file the election petition? OPA
(3) Whether the petition is not maintainable for non-issuance of notice? OPR
(4) Whether respondent No,1 Yasir Raza Malik was disqualified to contest election for PP-13, Rawalpindi? OPA
(5) Whether the petitioner is entitled to be declared as returned candidate being the second highest? OPA
(6) Relief.
5. Petitioner in order to prove his case produced Hafiz Sarwar, Superintendent Federal Board of Education as P.W.1, Malik Safeer Hussain Assistant Incharge Records, Board of Intermediate and Secondary Education Rawalpindi as P.W.2, Muhammad Sharif Office Superintendent, PEF, Post Graduate College, Aabdara Road, University Town, Peshawar as P.W.3 and himself appeared as P.W.4.
6. On the other hand respondent No,1 produced Manzoor Hussain Sheikh, Registrar Al-Khair University Camp Office I-8,Islamabad as RW-1 and Nasrullah Khan, Principal Global College of Technology, Peshawar Rokd, Rawalpindi as RW-2.
7. Learned counsel for the petitioner on issue No,4 contended that Exh.P-3 is the form of college, from where allegedly, the respondent No,1 appeared in his Intermediate Examination conducted by Federal Board, Islamabad. He contended that photograph is affixed on the said admission form which is not the photograph of respondent No,1, thus, in fact respondent No,1 himself had never appeared in the said examination, so, he was disqualified. He also got compared this photograph with the other photographs of the respondent appearing on Exh. P-4, P-5 and P-7. He further contended that said Intermediate Examination was conducted in April, May, 1995 but he was got admitted in the college on 3-11-1995 which on the face of it appears to be impossible. He contended that respondent No,1 himself did not appear in the witness-box to rebut the allegations and if the certificate of Intermediate Board is fictitious one then automatically graduation degree become ineffective. He contends that he only challenges the election of respondent No,1 on the ground that he himself had not appeared in the Intermediate Examination conducted by the Federal Board and certificate issued is a forged document which does not belong to respondent No, f. He contended that verification of the petition and annexures were made in accordance with law. He also contended that even the certificate submitted by the respondent No,1 before the Returning Officer available at page-14 of this petition is entirely different from Exh.D-2.
8. On the other hand, learned counsel for respondent No,1 referred to section 55 of the Representation of the People Act, 1976 and contended that it had to be verified in accordance with the procedure provided in Order VI, rule 15, C.P.C. And penalty is provided in section 63 of the Act, so contended that petition is liable to be dismissed on this ground. He placed reliance upon 1988 CLC 2048, PLD 2005 SC 600, 2005 CLC 672, PLD 2007 SC 362, 2007 SCM R 34 and 2007 CLC 671. On issue No,4 he contended that the petitioner had only confined himself to the certificate of respondent No,1 issued by the Federal Board of Intermediate Islamabad. He contended that even P. W.1 has supported the case of respondent No,1 that he was a student of that college from where he appeared in the examination and the certificate was duly issued by the said Board. He contended that as far as photograph is concerned, available on Exh.P-3 this was not the case in the main petition and no party can plead evidence on the point which had not been agitated in the pleadings and said evidence cannot be considered. In this behalf he placed reliance upon 2000 YLR 2793, 2004 CLC 713, PLD 1976 SC 459, 1998 MLD 1198, 2000 SCM R 1172. He further contended that even Exh.P-3 is not the admission form, but it is fee form, photograph is of respondent No,1 but with the passage of time the features changed. He contended that this was not a admission form sent to the Board for examination so no reliance can be placed upon Exh.P-3. He further contended that it has come in the evidence that there was no other student with the name of Yasir Raza in the college nor there is any evidence to show that Exh. P-3 does not contain the photograph of respondent No, 1 . He contended that in the election petition burden of proof heavily lies upon the petitioner and in this behalf places reliance upon 2004 M LD 36, 2005 YLR 937, PLD 1975 SC-6, PLD 1957 SC 91. He contended that all the educational institutions had verified the certificates. He further contended that it was not necessary to produce the respondent as a witness and placed reliance upon 1991 CLC 662, 2003 M LD 185.
9. Arguments heard. Record perused. Issue No, 1 .
10. This issue is a legal issue and the objection of respondent No,1 is that the petition and annexures were not verified in accordance with law. In order to appreciate the contention raised by the learned counsel for the respondent No,1, it is appropriate to reproduce section 55(3) of the Representation of the People Act, 1976 which reads as under:--
(3) "Every election petition and every schedule or annexure to that petition shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure 1908 (Act V of 1908), for the verification of pleadings".
11. Order VI, rule 15 of C.P.C. Provides that every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. Its sub-rule (2) provides that the person verifying shall specify, by reference to the numbered paragraphs of the pleadings what he verified of his own knowledge and what he verified upon information received and believed to be true. Its sub-rule (3) provides that the verification shall be signed by the person making it and shall state the date on which and the place at which it was signed." It is also appropriate to mention that section 63 of the Representation of the People Act, 1976 provides that the Tribunal shall dismiss an election petition if the provisions of section 54 or section 55 have not been complied with.
12. It is to be seen here that at the foot of election petition the petitioner had verified the petition in the following words:-- "Verified on oath at Rawalpindi on this 14th day of Apri1,2008 that the contents of all paras with sub paras of the election petition are true and correct to the best of my knowledge, information and belief".
13. It is duly attested by Mazhar Hussain Shah, Advocate High Court-Oath Commissioner dated 14- 4-2008. It may also be mentioned here that date of drafting of petition is also 14-4-2008 and even each page of election petition is attested by the Oath Commissioner on the same day. This petition is also accompanied by the affidavit of the petitioner which is available at page-11 wherein the petitioner mentioned his name, address, that he solemnly affirm and declare that the contents of the petition are correct to the best of his knowledge and belief and nothing has been concealed therefrom. It is further verified on the foot of affidavit to the effect that it is verified on Oath at Rawalpindi on 14th day of April, 2008, that the contents of election petition along with paras and sub-paras are true and correct to the best of his knowledge and belief and nothing has been concealed therefrom. This affidavit is also attested by the Oath Commissioner wherein the name of petitioner is also mentioned. The verification of both these documents was made on foot mentioning the place and date and also that all paras with sub-paras were true and correct to the best knowledge of the petitioner, information and belief. The election petition was also accompanied by the uncertified copies of annexures A to F which were attested by one Babar Shahzad Advocate bearing the same date i,e, 14-4-2008. However on the same day an application along with the main petition duly attested by the Oath Commissioner was also moved that the petitioner has annexed uncertified copies of the annexures along with the election petition and when the certified copies of said annexures would be available to the petitioner the same would be filed in the Tribunal, so it was prayed that production of certified copies of above-mentioned documents be dispensed with. This petition was also accompanied by the affidavit of the petitioner duly verified and attested by the Oath Commissioner. In this way annexures which were un- certified copies, though, were not attested by the Oath Commissioner but since the written application along with main petition was filed duly attested by the Oath Commissioner accompanied by the affidavit of the petitioner duly attested by the Oath Commissioner. i,e, the certified copies of annexures are not available, the production of the said documents be dispensed with. In this way it stands established that the election petition was duly verified as is the requirement of law and the uncertified copies of the annexures, though, were not attested by the Oath Commissioner but the application for dispensation accompanied by the affidavit was moved for the dispensation of certified copies and this application along with affidavit was also attested by the Oath Commissioner, so, the requirement of law has been fulfilled.
14. Learned counsel for the respondent No 1 in this behalf has placed reliance upon PLD 2007 SC 362, 2007 SCM R 34, 2005 CLC 172, PLD 2005 SC 600.
15. As far as the case law cited as PLD 2007 SC 362, 2005 CLC 172 and PLD 2005 SC 600 is concerned, in the said case law it has been laid down that it is mandatory for the Election Tribunal to dismiss the petition under section 63 of the Representation of the People Act, 1976 of the provision of section 55 have not been complied with. There is no cavil with the said proposition as has been mentioned above that the petitioner had fulfilled the requirement of law. As far as the case law reported in 2007 SCM R 34 is concerned, in the said case, the election petition was not verified in accordance with law but affidavit was attached with the petition. The honourable Supreme Court of Pakistan after going through the record came to the conclusion that this affidavit was not part of the main petition and in fact was subsequently added. However, in the present case it was not so. In the present case not only the election petition has been duly verified and attested by the Oath Commissioner but it was also accompanied by the affidavit at the time of filing of election petition which was also attested by the Oath Commissioner. Merely due to some irregularity in the wording which is also not available in the present case, the petitioner cannot be non-suited.
16. In view of what has been stated above, issue No,1 stands decided against the respondent No, 1.
Issue No . 2
17. There is no evidence on record that how the petitioner is estopped by his words and conduct to file the election petition, so issue No,2 also stands decided against the respondent No, 1.
Issue No,3
18. There is absolutely no evidence on issue No,3 produced by the respondent No,1, so issue No,3 also stands decided against the respondent No, 1.
Issue No,4.
19. This issue is material issue which was to be proved by the petitioner. In the main petition, though, matriculation certificate, Intermediate certificate and Bachelor degree of the respondent No,1 had been challenged but the petitioner had only produced the evidence to the extent of Intermediate certificate of the respondent No,1 and during arguments also the learned counsel for the petitioner has frankly contended that he confines himself to this extent only. Even when the petitioner himself appeared as P.W.4 he deposed that the respondent No,1 had never appeared in the Intermediate examination and on his behalf some other person appeared in the exam and the certificate of Intermediate has been obtained by respondent No,1 through impersonation. This itself shows that case of the petitioner now only rests upon the Intermediate certificate of respondent No,
1. Section-99 of the Representation of the People Act, 1976 deals with the qualification and disqualification of the candidate. It provides that a person shall not be qualified to be elected or chosen as member of a Assembly unless (cc) he is at least a graduate, possess a Bachelor degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission, under the University Grants Act, 1974 (XXIII of 1974) or any other law for the time being in force.
20. Learned counsel for the respondent No,1 has mainly argued that this ground of impersonation was not taken in the main election petition, so this Tribunal is not competent to go through the evidence produced by the petitioner in this behalf. It is appropriate here to mention para-4 (b) of the petition which is lengthy which relates to the factum of certificate issued to respondent No,1 for Intermediate Examination. At page-6 in line No,5, it was specifically mentioned as under:-- "It is also revealed from the admission form of HSSC, the respondent No,1 has never appeared as a candidate for the examination of Annual, 1995. From the facts stated above, it is crystal clear that respondent No,1 has obtained HSSC from Federal Board, Islamabad, by cheating, fraud and misrepresentation, which is liable to be cancelled".
21. Now the perusal of above-said para clearly shows that it was the case of the petitioner that respondent No,1 had never appeared in the Intermediate examination conducted by Federal Board of Islamabad in the year 1995 and he had obtained the said certificate by cheating, fraud and misrepresentation. This itself implies that right from the beginning, the case of the petitioner was that certificate was obtained by respondent No,1 through impersonation. Since only to the extent of this certificate, the parties are at variance. So, I myself confine only to this aspect. Now, it is necessary to examine the evidence produced by the parties in this behalf.
22. Hafiz Sarwar, Superintendent Federal Board of Education appeared as PW-1. He had brought the record and produced the attested copy of result gazette of Higher Secondary School Certificate Part-II examination Annual, 1995 as Exh.P-1. The perusal of Exh. P-1 shows that Yasir Raza appeared in the said examination bearing Roll No, 531377 from PEF, Model Degree College, Warsak Road, Peshawar and had passed the said examination. In the cross-examination he admitted that due to wrong feeding in the computer, in the gazette the result of Yasir Raza respondent, his subject and group was changed in the computer record. He also admitted that Yasir Raza moved application to the Board that due to error in computer his result was wrongly declared and admitted that after the correction, revised result of respondent Yasir Raza was announced and admitted that Mark "A" was revised mark sheet issued by the Federal Board according to which he had secured 660 marks and when it was misplaced, once again he applied for the duplicate and revised mark sheet Mark "B" was issued by the Board on 5-10-2006. He also admitted that Federal Board issued the certificate Exh.D-1 according to revised marks sheet. It may be mentioned here that according to Exh.D-1 the respondent No,1 had obtained 660 marks in pre-Engineering Group in the Intermediate examination. Now this statement is only helpful to resolve the controversy that Yasir Raza was student of PEF Model Degree College Warsak Road, Peshawar from where he appeared in the examination of Federal Board of Islamabad for Intermediate examination.
23. Malik Safeer Hussain, Assistant Incharge Records, Board of Intermediate and Secondary Education, Rawalpindi appeared as P.W.2. He only deposed that according to the record, in the matriculation examination, Yasir Raza appeared under Roll No,204109 but he failed in 4 subjects and he appeared in the supplementary examination and cleared 3 subjects excepting Biology in which he was again failed and according to their record, the respondent Yasir Raza had not cleared/passed in Biology. In the cross-examination he admitted that according to the policy of Board, if a candidate fails in one subject he would be considered as having passed the examination but volunteered that this policy only remained enforced from 1978 to 1992. This witness admitted that according to their record respondent Yasir Raza had passed the matriculation examination. However, since the passing of matriculation examination has not been pressed by the petitioner, so, the statement of the witness is not so material.
24. Muhammad Sharif Office Superintendent, PEF Post Graduate College, Abdara Raod University Town, Peshawar appeared as PW-3. In fact this is the most material witness and the whole case rests upon the testimony of this witness. It may be mentioned here that from the said college, i,e, PEF Post Graduate College, University Town, Peshawar, the respondent No,1 appeared in the examination of Federal Board of Intermediate. This witness deposed that he brought the original admission register for the year 1994-1995 and deposed that photo copy Exh.P-3 was the correct photo copy of the register bearing page No,154 and serial No,
148. He had also brought original register which was seen and returned by the Tribunal. Now, Exh.P-3 is the most important documents which bears the photograph of student, whose name was Yasir Raza s/o Ghulam Raza.
His occupation was businessm an. His address was also mentioned in the said form. His intermediate Roll No, 531377 also finds mentioned in the said form Exh.P-3 which is 531377. It may also be pointed out here that same Roll number is mentioned in Exh. P-1 in his statement produced before the Tribunal. The case of the petitioner is that, though, name of respondent No,1 has been used as being the student of said college who appeared in the examination of the Federal Board but the photograph affixed upon it is not that of respondent No,1 and it is of some other boy which clearly shows that the boy who appeared in the examination was not the respondent No,
1. In this respect petitioner also produced in evidence Exh.P-4, the admission form of respondent No,1 for matriculation examination for the year 1992 which also bears his photograph, the application for obtaining the result card of matriculation examination Exh.P-5 which also bears the photograph of respondent No, 1 . The application for obtaining the certificate of matriculation Exh. P-6 which also bears photograph of respondent No,1 and the copy of NIC of respondent No,1 Exh.P-7. The case of the petitioner is that Exhs.P-7, P-6 and P-4 are admittedly the photographs of respondent No,1 but Exh.P-3 is not the photograph of respondent No,1 which clearly shows that some other boy appeared on his behalf in the Intermediate Examination. In rebuttal, the respondent No,1 only produced RW.1 Manzoor Hussain, Registrar of Alkhair University who only deposed that he had passed the University examination of BBA which in fact is not disputed in the present case. He further produced RW-2 Nasrullah Khan, Principal Global College of Technology, Peshawar Road, Rawalpindi, who deposed that respondent No,1 was student of BBA in his college. This statement is also of no help to resolve the controversy since the present controversy only related to the Intermediate Examination of Yasir Raza, respondent No, 1 . Respondent No,1 did not himself enter into a witness-box to rebut the contentions of the petitioner that it was he who had appeared in the Intermediate examination and passed the said examination. In order to resolve this controversy this Tribunal by invoking the powers provided to the Tribunal under section 61 of the Representation of the People Act, 1976 personally summoned the respondent No,1, who made the appearance before the Tribunal. He was confronted with the documents Exh.P-3, Exh.P-4, Exh.P-5, Exh ;P-6 and Exh.P-7 and he owned that all the photographs were of his. Similarly, the Controller of Federal Board, Islamabad was also summoned in order to see the admission form but the Controller informed the Tribunal that the said record has been destroyed. The respondent No,1 has owned his photograph appearing on Exh. P-3 and even the learned counsel for the respondent No,1 did not deny it that it is a photograph of the respondent No,1 and on the basis of same form he appeared in the Intermediate examination. Now, only controversy which is to be resolved by this Tribunal is whether the photograph appearing on Exh.P-3 is in fact the photograph of respondent No,1 and if it comes to the conclusion that it is the photograph of respondent No,1, then the petitioner has no case at all and it would be established that respondent No,1 had in fact . Himself appeared in the Intermediate Examination and passed the same. The said photograph had been duly compared with the photographs of respondent No,1 available at Exh.P-4, Exh.P-5, Exh.P-6 and Exh.P-7. As far as the photographs available on Exh.4 to Exh.P-7 are concerned, their comparison leaves no doubt in the mind that these are of same person and since the respondent No,1 was personally summoned before the Tribunal and was seen by the Tribunal and there remained no ambiguity that these are photographs of respondent No,
1. However, even the naked eye can see the photograph appearing on Exh.P-3 is not the photograph of respondent No,1 and admittedly this is photograph of some one else. The features are entirely different, the shape of lips, eyes and hair are entirely different. It may also be mentioned here that Exh.P-4 related to the year 1992 and the photograph on the said form clearly shows that respondent No,1 was of older age as compared to the photograph of a boy appearing on Exh.P-3, through, Exh.P-3 relates to the year, 1994.
25. From every angle the photograph on Exh. P-3 has been examined but in no way it can be said that this photograph is of respondent No,1, whose photographs are also available from Exh.P-4 to Exh.P-7 Even when respondent No,1 personally appeared before the Tribunal it became clear that photograph appearing on Exh.P-3 was not photograph of respondent No, 1.
26. The above-said discussion clearly shows that though Yasir Raza respondent No,1 has obtained the admission in PEF Degree Collage, Warsak Road, Peshawar by his name but in fact the boy was some one else and said boy, whose photograph is available on Exh.P-3 in fact appeared in the Intermediate Examination, though, the certificate was issued in the name of respondent No,1 and this clearly established the case of impersonation that some one else obtained the admission in this college in the name of respondent No,1 and appeared in the examination on his behalf. In this way when the Intermediate certificate issued by the Federal Board of Islamabad was result of impersonation then automatically the Bachelor degree in favour of respondent No,1 looses its value also.
27. The net result of above discussion is that since the respondent No,1 has obtained the Intermediate certificate through impersonation, so he was disqualified to contest the election. Issue No,4 stands decided in favour of the petitioner.
Issue No,5.
28. While deciding issue No,4 when it has been observed that respondent No,1 Yasir Raza was not qualified to contest the election for PP-13 Rawalpindi, then the dispute remains that the petitioner who was at No,2 should be declared as elected candidate. Respondent No,1 had obtained 23415 votes while petitioner had obtained 20486 votes. The declaration of petitioner to be elected candidate would mean that in fact 23415 voters had been deprived of their right of representation in the Provincial Assembly for no fault of them, since they were not aware that respondent No,1 was not qualified to contest the election. In such eventuality, it is in the interest of justice that the order for re-election should be made. Accordingly, this issue stands decided against the petitioner.
Issue No,6-Relief.
29. In view of my findings on issues Nos. 4 and 5, this petition stands accepted with the result that Election Commission is directed to conduct re-election for PP-13, Rawalpindi in accordance with rules and law.
' Commissioner for information and compliance. The parties are left to bear their own costs.