IJAZ AHMED CHAUDHRY, J. --- Through this single order I intend to dispose of the instant writ petition as well as writ petition No. 6697/2010 as common question of law and facts are involved in both of them and they relate to the same constituency and challenge the candidature of the same person.
2. Through writ petition No. 254/2008 Masood lqbal Gondal and another petitioners have called in question the legality of the order dated 30.11.2007 passed by the Returning Officer whereby he accepted the nomination papers of respondent No. 2.
2. Briefly, the facts of the case are that respondent No. 2 filed his nomination papers to contest election from NA-68-Sargodha-V by attaching there with a Sanad Daras-ul-Almia showing that he had passed the examination under Roll No. 1265 from Darul Aloom Mehmoodia Dhandi, Azeem Abad and Bannu. The petitioner No. 1 being voter of that constituency raised verbal objection regarding qualification of respondent No. 2 but the Returning Officer without taking into consideration that verbal objection illegally accepted the nomination papers of respondent No. 2 in a slipshod manner and without giving any reason. The petitioners immediately approached the concerned Madarsa from where it transpired that the Certificate relied upon by respondent No. 2 is bogus one and it has never been issued by the concerned Institute which also does not have affiliation with Wafaqul Madaris Al-Arbia Pakistan, Multan. The roll number mentioned on the certificate is also fake because such certificate bearing same roll number is alleged to have been issued in the name of Mst. Naghma Mushtaq who filed nomination papers from PP-206-Multan-XII which stood rejected against which said Mst. Naghma Mushtaq filed a Constitutional petition bearing writ petition No. 12077/2007 challenging the said order whereby her nomination papers were rejected. The said writ petition was dismissed by a learned Full Bench of this Court on 4.1.2008.
Thereafter the petitioners approached the Nazim of Madarisa, the sanad of which was relied upon by respondent No. 2 for contesting the election who issued a certificate declaring therein that the sanad produced by respondent No.3 is forged and fictitious. Since respondent No. 2 was not qualified to contest the election, therefore, through the present petition the petitioners have prayed that order dated 30.11.2007 passed by the Returning Officer accepting nomination papers of respondent No. 2 be set aside.
3. Learned counsel for the petitioners contends that respondent No. 2has become a member of the National Assembly from NA-68-Sargodha while submitting bogus nomination papers by claiming his qualification equal to B.A. And submitted Sanad issued by Darul Aloom Mehmoodia Dhandi, Azeem Abad Bannu which Institution, according to the learned counsel for the petitioner, does not have affiliation with Wafaq-ul-Madaras; that the Sanad relied upon by respondent. No. 2 was found bogus according to the report submitted by respondent No. 3 wherein it was mentioned that another Sanad against the same roll number had already been issued in the name of one Naghma Mushtaq; that a Full Bench of this Court has already settled this matter in they case of Naghma Mushtaq v. Election Tribunal, Punjab, Lahore and 2 others (PLD 2008 Lahore 149) wherein it was held that the Institution Darul Aloom Mehmoodia Dhandi is not recognized by the University Grants Commission and any Sanad issued from the said Institution cannot be deemed equivalent to the degree of B.A.; that under Order VIII, Rules 4 and 5 of the Civil Procedure Code if a witness gives an evasive reply that a amounts to admission; that in view of the law laid down in Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 Supreme Court 52) the Court can even go beyond the scope of prayer in writ jurisdiction and it is mandatory for the Court to issue any direction which was even otherwise not sought for if the Court is satisfied and come to the conclusion that it was a fit case for issuance of direction and that since respondent No. 2 has relied upon a forged document, therefore, in view of Article 62(d)(f) of the Constitution of the Islamic Republic of Pakistan, 1973; he stood disqualified to contest the election.
4. Learned counsel for respondent No. 2 on the other hand contends that the petitioner is only a voter in the constituency and is not one of the contesting candidates; that the nature of the writ petition is not of quo-warranto; that previously another voter namely Ghulam A.I Shah had filed Writ Petition No. 2152 of 2008 in this Court through Mr. Talat Farooq Sheikh, Advocate and this writ petition had been dismissed through judgment reported as Makhdoom Ghulam A.I Shah v. Election Commission of Pakistan, Islamabad through Secretary and 4 others (2008 CLC 738); that all the grounds mentioned in the instant petition had already been dealt with in the above-said judgment, so the principle of res judicata is applicable; that only a candidate can file Election Petition against disqualification of a successful candidate and Election Petition No. 167 of 2008 which has been dismissed on 17.7.2009 by an Election Tribunal, as such, the order had already attained finality and due to this reason the matter cannot be re-agitated; that in a writ of quo- warranto the only question to be answered is that under what authority respondent No. 2 is holding the office of MNA and the answer is that respondent No. 2 is holding seat of MNA on the basis of notification which has been issued by the Election Commission and the said notification cannot be challenged by the petitioner and that the petitioner has no locus standi to file the Writ Petition as earlier a writ petition on the same question had already been dismissed by a learned Division Bench of this Court, as such, the Single Bench cannot set aside the said order; that even otherwise factual controversy is involved in this case and to resolve this issue evidence is required, as such, the writ petition is liable to be dismissed on this sole ground. Reliance is placed on Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644).
5. In reply to the arguments of the learned -4 counsel for respondent No. 2 it is contended by the learned counsel for the petitioner that the Election Petition referred above had been dismissed on technical ground and not on the merit of the case. The documents appended with the Election Petition were not verified or attested by the Election Commission. So far as the Section 11, C.P.C. Is concerned the petitioner was not party in the earlier round of litigation, thus, this rule does not apply in the instant writ petitions. It is held by the Hon'ble Supreme Court of Pakistan that it is mandatory for the Court to inquire into the matter and dispose of the same in accordance with law. Reliance is placed on PLD 2007 SC 52. So far as the judgment rendered by the Hon'ble Division Bench in Writ Petition No. 2152 of 2008 is concerned the question raised in this writ petition was not the subject-matter of the said writ petition. In whole of the arguments advanced by the learned counsel for respondent No. 2 neither it has been mentioned that respondent No. 2 is a graduate nor it has been explained that how respondent No. 2 has obtained Sanad against the same roll number whereas one Mst. Naghma Mushtaq was also holding Sanad against the same roll number.
6. I have heard the learned counsel for the parties and also perused the available record. The case of the petitioners is that respondent No. 2 became a member of the National Assembly from NA- 68-Sargodha-V by submitting his nomination papers on the basis of a sanad issued by Darui Aloom Mehmoodia Dhandi, Azeem Abad, Bannu which Institution is not affiliated with Wafaqul Madaris and since respondent No. 2 was not qualified to be elected as Member of the National Assembly, therefore, his election is liable to be declared as null and void. Section 99(1)(cc) of the Representation of the People Act, 1976 which talks of the qualifications and disqualifications of a person to be elected as member of the National Assembly is reproduced below:--- "99. Qualifications and disqualifications.-- (1) A person shall not be qualified to be elected or chosen as a Member of an Assembly unless:---
(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." {{URDU TEXT}} The said by such, the degree attached with his nomination papers by respondent No. 2 was a forged document and respondent No. 2 was not a graduate within the contemplation of Article 8-A of the Conduct of General Elections Order, 2002 and Section 99(1)(cc) of the Representation of People Act, 1976, as such, he was not qualified to contest election on the day when he presented his nomination papers and the Returning Officer illegally accepted his nomination papers. In similar situation, a learned Full Bench of this Court in the case Naghma Mushtaq v. Election Tribunal etc., (W.P. No. 12077/2007) in which the petitioner therein had relied upon the Sanad of the same Madarasa for contesting the election held as under:--- "The institution/seminary which statedly issued a "sanad" to the petitioner admittedly does not figure in the list of the institutions recognized by the University Grants Commission for issuing Sanads equivalent to B.A. Degrees. As stated above the representative of Higher Education Commission has candidly conceded that neither the "sanad" on the basis of whicht the petitioner is claiming herself to be a graduate is recognized nor the institution which has issued the said "sanad" in favour of the petitioner is an approved/recognized seminary. Therefore, we do not see any illegality in the impugned orders, whereby the nomination papers filed by the petitioner were rejected."
The Hon'ble apex Court in its recent judgment dated 25.3.2010 in Civil Petition No. 287 of 2008 titled "Nawabzada lftikhar Ahmad Khan Bar v. Chief Election Commissioner, Islamabad and others" while tackling the tendency of relying on forged Sanads of Madarasas held as under:- "14. The Parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny. And there is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august House. He is guilty, inter alia, of impersonation-posing to be what he 'was not i.e. a graduate. He is also guilty of having been a party to the making of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating and cheating not only his own constituents but the nation at large."
"Such-like 'HOUSE-BREAKING' tendencies on the part of dishonest and un-scrupulous individuals need to be strongly checked before the virus" becomes an un-controllable epidemic."
It is also held by the apex Court in the cited judgment with reference to Section 14(3) of the Representation of People Act, 1976 held as under:- "A perusal of the relevant Constitutional and statutory provisions would reveal that a Returning Officer appointed under Section 7 (if the Representation of People Act of 1976, is the key-man in the entire exercise of conducting an honest, a just and a fair election in accordance with law, as commanded by Article 218 of the Constitution. Needless to add that the first and the most crucial step towards the attainment of the said commanded goal is ensure that no person who is not Constitutional and legally qualified to contest any such election is allowed to enter the arena. And for the said purpose, the provisions of Section 14 of the said Act clothe the said Officer with immense powers to conduct such enquiries as he deems fit to make sure that only the qualified persons are allowed to contest an election and no in-eligible intruders are permitted to participate in the same. A reference especially to sub-section (3) of the said Section 14. Would demonstrate that in order to carry out the said process of screening, the Returning Officers have not been left at the mercy of anyone and he is obliged to move in the matter of his own motion without sitting there and waiting for an objector to come forward so that he could reject the nomination papers of an un-qualified person."
7. As far as the argument of learned counsel for respondent No. 2 that only a contesting candidate can file an election petition against the returned candidate before the Election Tribunal which was filed and was ultimately dismissed on 17.7.2009 by the learned Election Tribunal which order has already attained the finality is concerned, suffice it to observe that the afore-said election petition was dismissed on technical ground and not on merits, as such, the argument has no force at all.
The Hon'ble Supreme Court of Pakistan in the case of lmtiaz Ahmad v. Ghulam A.I (PLD 1963 SC 382) held as under-- "I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
7. The argument of the learned counsel for respondent No. 2 regarding Section 11 of the Civil Procedure Code has also no substance as the petitioner was not a party in the earlier round of litigation, as such, the rule enunciated in Section 11, C.P.C. Does not at all apply in the instant case in view of the law laid down in Hafiz Hamdullah v. Saifullah Khan and others (PLD 2007 Supreme Court 52). The question of locus standi of the petitioner to file the instant writ petition as the earlier writ petition on the same facts was dismissed also does not arise, as the earlier writ petition was not on the subject-matter herein this writ petition.
8. It is also apparent from the facts that respondent No. 2 has failed to give any reasonable explanation regarding his being a graduate, as such, I am of the considered view that respondent No. 2 was not a graduate and thus could not have been elected as Member of the National Assembly. Since the respondent No. 2 was not qualified to contest the election being not graduate, therefore, he not only defrauded the Government functionaries by annexing a forged and fictitious document with his nomination papers but also defrauded the people of his constituency who have their fundamental right of franchise and a person of such a conduct cannot hold office of the member National Assembly because he does not fulfill the conditions to be elected or chosen as a Member of Majlis-e-Shoora enunciated in Article 62 of the Constitution of the Islamic Republic of Pakistan, 1973.
9. For what has been discussed above, I allow both the writ petitions and declare the order dated 30.11.2007 whereby the Returning Officer had accepted the nomination paper of respondent No. 1 as illegal and of no legal consequences and, as such, the election of respondent No. 2 is declared null and void. The Election Commission of Pakistan shall arrange for re-election in NA-68 Sargodha-V so that the people of constituency may exercise their right of franchise to elect their representative of their choice. .