' IJAZ AHMED CHAUDHRY, ELECTION TRIBUNAL.--- Mian Imran Masood petitioner has filed this election petition under section 52 of Representation of Peoples Act, 1976 against Haji Nasir Mehmood and 11 others alleging therein that he along with the other private respondents had filed their nomination papers to contest the election from PP-111-Gujrat. The degree possessed by respondent No,1 was not lawful being not recognized by the competent authority (University) as required by the Election Laws and on the basis thereof, he could not be held to be a graduate and was liable to be disqualified as an elected candidate. The objection was earlier raised by respondent No,2 before the Returning Officer whereupon nomination papers of respondent No,1 were rejected on 3-12-2007.
Aggrieved of the said order respondent No,1 filed Election Appeal No,15-R of 2007 before the learned Election Tribunal Punjab, Lahore High Court, Lahore which was allowed by the then learned Election Tribunal vide order dated 7-12-2007 on the ground that the objection raised by respondent No,2 could appropriately be dealt with by filing an election petition under section 52 of the Representation of Peoples Act, 1976 after the elections. Thereafter the petitioner as well as the private respondents contested the election and respondent No,1 has been elected as Member of the Provincial Assembly.
2. The election petition was contested by respondent No,1 by filing a written statement while raising preliminary objections that the petition is not maintainable in its present form; that the election petition has been filed with a motive behind just to overawe the situation, whereas the fact remains that there is no ambiguity or malpractice on the part of respondent No,1; that the election petition is hit by the non-compliance of the statutory requirements of section 52 of the Representation of the Peoples Act, 1976; that the prayer made in the election petition is in violation of subsection (2) of section 55 of the Act as the same is self-inflicting and self-contradictory, therefore, relief has not been claimed as it is required under the statutory provisions of law; that the election petition and the documents annexed therewith have not been verified in the manner laid down in the Code of Civil Procedure, 1908 for verification of pleadings, thus being violative of subsection (3) of section 55 of the Act, the election petition is not maintainable and is liable to be dismissed; that the petitioner has not come to this Tribunal with clean hands; that no relief can be granted to the petitioner in the exercise of equity; that the petition is conjectural in nature and a deliberate attempt on the part of the petitioner to seek an office for which the petitioner has not been mandated and the respondent has been elected by overwhelming majority of the voters of the constituency. On merits respondent No,1 asserted that he is fully qualified having the degree of Bachelor of Business Administration from the University of East Hyderabad, a Chartered University and the Returning Officer had rejected the nomination paper of respondent No,1 without adverting to the facts and circumstances of the controversy on the objection of respondent No,2, namely, Mian Haroon Masood, real brother of the petitioner which was challenged by the respondent before the learned Appellate Tribunal of the Lahore High Court, Lahore through Election Appeal No,15-R of 2007 and it was allowed by the said Tribunal vide order dated 7-12-2007. Feeling aggrieved of the said order respondent No,2 filed Writ Petition No,12169 of 2007 before the Lahore High Court, Lahore which also met the same fate of dismissal vide order dated 19-12-2007. Afterwards respondent No,2 filed C.P.L.A. No,31 of 2008 before the apex Court but after losing the election that was withdrawn.
Respondent No,1 being Graduate contested the election and was declared returned candidate by thumping majority; that respondent No,1 is a graduate and the degree possessed by him is genuine and recognized by the competent authority (Higher Education Commission) and thus fully qualified within the meaning of clause (cc) of section 99 of the Representation of Peoples Act, 1976 and Article 8-A of the Conduct of General Elections Order, 2002.
3. The other respondents did not enter appearance despite issuance of process by this Tribunal and they were proceeded against ex parte vide order dated 13-11-2008. Out of the divergent pleadings of the parties, the following issues were framed:-- Issues
(1) Whether the election petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908 as well as section 55(3).Of the Act? OPR
(2) Whether the petition in hand is not maintainable? OPR
(3) Whether the petition in hand is not within time? OPR
(4) Whether the matter in question has been decided by the Supreme Court as well as Lahore High Court in the first round of litigation initiated by the respondent No,2, if so, then what is its effect? OPR
(5) Whether degree of BBA of respondent No,1 issued by University of East Hyderabad, Pakistan is forged/fake and without relevant record? OPP
(6) Whether the degree of BBA of respondent No,1 is not recognized by High Education Commission of Pakistan, if so, what is its effect? OPP
(7) Whether respondent No,1 was not having due educational qualification on the nomination day, if so, what is its effect? OPP
(8) Whether postal ballot-papers cast in favour of petitioner have not been counted in his favour, and it requires re-counting? OPP
(9) Whether any malpractice has been committed by respondent No,1? OPP
(10) Whether respondent No,1 is liable to be declared as disqualified for contesting election on the nomination day? OPP
(11) Relief.
4. In support of his pleadings, petitioner produced Muhammad Javed Khan Director-General Higher Education Commission Directorate and Attestation as P.W.1, Imtiaz Sheikh, Registrar, University of East Hyderabad as P.W.2 and he himself appeared in the witness box as P.W.3. On the other hand respondent No,1 produced only one witness, namely, Qazi Abid Iqbal Attestation Officer, Higher Education Commission Islamabad R.W.1 in support of his contentions.
5. I have heard the learned counsel for the petitioner as well as learned counsel for respondent No,
1. My issue-wise findings are as under:--- Issues Nos.5, 6 and 7.
5-A. These issues relate to the academic qualification of respondent No,1, which is the pivotal question in this case, the onus to prove whereof lies upon the petitioner and these being interconnected are decided together. The petitioner himself appeared as P.W.3 and produced P.W.1, P.W.2. Learned counsel for the petitioner contends that this petition pertains to PP-III-Gujrat, the petitioner along with others had contested the elections for the above seat held in the General Elections, 2008; that nomination papers of respondent No,1 were submitted on 26-11-2007 and objection was raised by the petitioner that he did not possess the requisite qualification as contained in 99(cc) of the Representation of Peoples Act, 1976 read with section 8(a) of the Conduct of General Elections Order, 2002; that Returning Officer had accepted the objection raised by the bother of the petitioner who was also contesting the elections and accepted the said objections and nomination papers of respondent No,1 were rejected vide order dated 3-12-2007; that against the said order appeal was filed before the Election Tribunal which was accepted vide order dated 7-12-2007 with the observation that the matter could be agitated before the Election Tribunal after the elections; that Writ Petition No,12169 of 2007 was filed which was dismissed in limine vide order dated 19-12-2007 with the observation that this matter could be agitated through Election petition and then C.P.L.A. No,31 of 2008 was led wherein comments were filed by the Higher Education Commission to the effect that neither the said Institution was affiliated with them nor the degree issued by it was being recognized by the HEC; that in the august Supreme Court the petition was disposed of as the election was going to be held in the near future; that under section 99(cc) of the Representation of Peoples Act, 1976 degree should be recognized by the Higher Education Commission; that under section 10(o) of the Higher Education Commission Ordinance, 2002 only the Higher Education Commission can declare the degree as recognized by any Institution of the Country; that the degree recognized by the Higher Education Commission can only be accepted; that P.W.1 Muhammad Javed Khan Director-General, Higher Education Commission while appearing before this Tribunal categorically stated that the degree of the University of East Hyderabad was not recognized degree from October, 2007 to 15th August, 2008 and also admitted that Exh.P.A. Is the genuine letter issued by the Higher Education Commission as well as the comments which are placed on record as Ex.P.B.; that according to P.W.1 University was not meeting the criteria while issuing the degree; that during cross-examination it has been admitted by P.W.1 that so far University fell in the category "Z" to "Y" till May, 2008 it was in category "Z" and now it was in the category "Y" and "Z" is for those Universities whose degrees are not recognized and "Y" is that University, which has no infrastructure; that P.W.2 has admitted that physical record of said degree was not available in the said University; that it was admitted by R. W.1 that he had attested Exh.D.A./1-4 on 12-9-2008 i,e, after one year of the elections and when according to their own version the record was not available; that he has stated that University of East Hyderabad was established by Sindh Government on 28-7-2004; that according to R.W.1 and Exh.D.A./1-4 it was Semester System in the University of Hyderabad; that the University according to R.W.1 was established by the Sindh Government on 28-7-2004 whereas it issued the certificate of spring 2003 and summer 2003 when the said University was not in existence; that the degree was issued to respondent No,1 in March, 2006 while course was for three years and semester should have been started in March, 2003; that the Higher Education Commission's letter Exh.P.A. Also shows that University of East Hyderabad was established on 28-7-2004; that even the Higher Education Commission in the comments Exh.P.B. Mentioned that University of Sindh had been issuing degrees before its existence which shows that the University of Hyderabad was involved in issuing bogus degrees and no sanctity is attached to the degrees issued that the University and the degree were also not recognized, and that respondent No,1 having failed to possess the requisite qualification of graduate may be declared disqualified to contest the elections. In support of his contentions, learned counsel for the petitioner relies upon Mian M. Azam Chaila v. Wajid Ali Khan and others PLD 2009 Lah. 449 and Muhammad Nasir Mehmood and another v. Federation of Pakistan PLD 2008 SC 341.
6. On the contrary, learned counsel for respondent No,1 contends that the Assembly had passed the Bill on 10-9-1999 of the University of East which was referred to the Governor of Sindh, but the Governor of Sindh assented the same on 21-7-2004 and thereafter the said notification was published but it is to be presumed that within one month of passing the bill by the Assembly it was automatically assented to; that it was admitted by P.W.1 that degree was not recognized as the Inspection was not made by the, Higher Education Commission and there was no objection to the Higher Education Commission regarding the degrees issued by the Hyderabad University; that though he has denied that letter Ex.PB was issued due to the influence of petitioner who was the Minister for Education in the Province of Punjab that P.W.1 admitted that University was recognized as per the record available on the website; that according to the letter dated 16-8-2008 the status of the University of Hyderabad has been raised from Category "Z" to "Y"; that it is admitted that the degrees of "V" Category Universities are valid and he has admitted that Higher Education Commission has attested on 12-9-2008; that the Higher Education Commission has accepted the degree and then has verified the degree; that P.W.2 has categorically stated that there was no record of said degree; that it was admitted by P. W.3 that the Election Appellate Tribunal had allowed respondent No,1 to contest the election by ignoring the objection; that at the time of filing the election petition objection was raised by the petitioner that no appeal was filed by him; that R.W.1 has admitted that he has contested genuineness of the degree; that the respondent has established that he was a graduate and petitioner wanted to shift his burden on the respondent, and that respondent No,1 possesses the valid degree of graduation, which being recognized by the HEC this petition merits dismissal and it is also settled law that no one can be ousted on the technicalities.
7. After hearing the learned counsel for the parties and perusal of the available record, I am of the considered view that the degree Exh.D.A. Produced by respondent No,1 with his nomination papers was not recognized by the Higher Education Commission and this fact has fully been provided by the petitioner by producing P.W.1 and P.W.2. P.W.1 while appearing in the witness box categorically stated that the degrees of University of East Hyderabad were not being recognized by the Higher Education Commission from October, 2007 to 15 August, 2008. During the cross-examination he also stated as under:--- "***The name of University of East Hyderabad could not be in that reorganization. The University was inspected in May, 2008 and we were not satisfied till now that the University was meeting minimum criteria. It is correct that a letter was issued by HEC on 16-8-2008 that the University of East Hyderabad was transferred to category "Z" to "ZY", voluntarily states that "Z" is for the University which had no infrastructure except charter and "Y" defines the Universities which have seriously deficiency in making the standard requirement of HEC. It is correct that the degrees of Universities of "Y" category are valid, voluntarily states that the degree of University established prior to approval campaigning criteria on 27th February, 2002 and were being recognized, while Universities which are in category "Z" and possess physical infrastructure their degrees are not recognized. It is correct that august Supreme Court of Pakistan has sent a reference for verification of degree of Haji Nasir Mehmood. It is correct that HEC has issued the degree Ex.D.A. voluntarily states that it was attested on 12-9-2008."
' Imtiaz Sheikh, Registrar University of East Hyderabad appeared P.W.2 stated that physical data of the record pertaining to the degree in question was not available with the University and in such circumstances learned counsel for the petitioner made a statement that since the witness was called only to produce the record and when he has not brought the record, he did not opt to further examine him. Qazi Abid Iqbal, Attestation Officer, Higher Education Commission appeared in the witness box R. W.1 and stated that he had seen copy of the degree Exh.D.A. Of Bachelor of Business Administration in Marketing and Finance issued in favour of Nasir Mehmood respondent No,1 by the University of East Hyderabad, Pakistan which was attested by him on 12-9-2008 along with all transcripts Exh.D.A./104, but the fact remains that when respondent No,1 had filed his nomination papers at that time the degree of the University in question was not a recognized one by the Higher Education Commission and as such respondent No,1 was not qualified under the law to contest the election. Since the Registrar P.W.2 of the University of East has failed to produce any record pertaining the degree of respondent No,1, therefore, it is doubtful that how the Degree Exh.D.A. Relied upon by respondent No,1 was attested on behalf of the University on 12-9-2008, when there was no record available with the University as clarified by P.W.2 and the said degree also appears to be forged/concocted one. Moreover, the degree of respondent No,1 was not recognized one at the time of filing of nomination papers and its recognition subsequently on 12-9-2008 was immaterial as it has been held by a Division Bench of this Court in Mian M. Azam Chaila's case (supra) that doubtful and suspicious graduate qualification cannot discharge the positive obligation cast on candidate by section 99(cc) of the Representation of the People Act, 1976 to establish his qualification of eligibility to contest the general elections and the date of nomination for election was the crucial date for testing the qualification of a candidate. Even otherwise, respondent has not appeared in the witness-box in support of his claim that he had validly passed the Degree of BBA in Marketing and Finance Exh.D.A. And to face the test of cross-examination by the other party.
Therefore, it is declared that on the day of filing the nomination papers, respondent No,1 having not possessed the degree of graduation was not qualified under section 99(cc) of the Representation of the People Act, 1976 to contest the General Elections. In such circumstances, all these issues are decided in favour of the petitioner and against respondent No, 1.
Issues Nos.1, 2, 3, 4, 8 and 9.
8. Since no evidence was produced by the parties on these issues, therefore, the same require no findings and these are decided accordingly.
Issue No,10.
9. In view of my findings on Issues Nos.5, 6 and 7 this issue is decided in favour of the petitioner and against respondent No,1 and the latter is declared as disqualified for contesting the election on the nomination day. However, as regards the contention raised by the learned counsel for the petitioner that after the disqualification of 'respondent No,1, the petitioner be declared as returned candidate, suffice it to say that the petitioner has failed to establish on record that disqualification of respondent No,1 was notorious and in the absence of such evidence the votes secured by the successful candidate could not be thrown away and the candidate securing the next highest votes cannot be declared elected. So has been held by the apex Court of the country in the case of Sardar Muhammad Amir Khan v. Nadeem Akhtar and others 2007 SCMR 1044. Moreover, it has been brought to the notice of this Tribunal that the petitioner was at No,3 in the result count and on this score as well he cannot be declared returned candidate after the disqualification of respondent No,1 to contest the elections on the sole score that he did not possess the requisite qualification of graduation on the nomination day, but it is felt that the proper way out is to go for fresh elections by affording an opportunity to the people of the constituency to elect the candidate of their choice by majority of votes.
Issue No,11 (Relief)
10. In view of my findings on the above issues, I accept this election petition and declare that respondent No,1 was not qualified under the law to contest the General Election from PP-III-Gujrat.
In this view of the matter the Election Commission of Pakistan is directed to take necessary steps to conduct fresh election in PP-III-Gujrat.