IFTIKHAR MUHAMMAD CHAUDHRY, CJ.---Facts of the case briefly have already been noted on 17th June, 2010 therefore, said order in extenso is reproduced hereinbelow:-- "In the general elections held in the month of February, 2008, Aamir Yar respondent got returned as the successful candidate for a seat in the National Assembly representing N.A. 184 Bahawalpur.
One Mian Najeeb-ud-Din Owaisi, the appellant before us, filed an Election Petition No, 45 of 2008 before the Chief Election Commissioner of Pakistan challenging the said election of the said Aamir Yar respondent essentially on the ground:--
(i) that the said Aamir Yar respondent stood found guilty of preparing/using forged documents i,e, a forged B.A. Degree; stood found guilty of impersonation and punished accordingly and that in the circumstances such a forgerer, such a cheat and an impersonator could not be said to be a person who was Honest and Ameen and he thus disqualified from becoming or continuing as a member of the National Assembly;
(ii) that the said Aamir Yar respondent had contested the general elections held in the year 2002 claiming to be holding a degree of Bachelor of Commerce from Shah Abdul Latif Bhitai University, Khairpur in the Province of Sindh which degree was challenged through Writ Petition No, 2972 of 2003/BWP in the Lahore High Court wherein the Vice-Chancellor and the Controller of Examinations of the said University had declared that the degree allegedly held by the said respondent had never been issued by the said University and that the same was a bogus and a forged document;
(iii) that after the above-mentioned writ petition had been filed in the Lahore High Court in the year 2003 and knowing the fate of the same, Aamir Yar respondent made a second attempt to secure a B.A. Degree and this time the forum chosen by him was the Islamia University of Bahawalpur. He submitted his admission form to appear in B.A., Second Annual Examination to be held in the year 2004; he arranged the services of some other person to take the said examination in his place who was caught red-handed which led to initiation of proceedings against him for using Unfair Means in the said examination; he was found guilty of impersonation and was consequently punished through a notification dated 15-1-2005 of the said Islamia University, Bahawalpur whereby his candidature in the said examination was cancelled in addition to which he was dis-qualified for a period of three years from taking any such examination and a penalty of fine of Rs, 2000 was also imposed on him;
(iv) that according to the knowledge of the election-petitioner, this finding of guilt and the consequent punishment had never been challenged by the respondent and had thus attained finally;
(v) that feeling still not discouraged and deterred, the said respondent continued his efforts to procure a bogus B.A. Degree and this time contested the 2008 elections on the strength of a B.A.
Degree allegedly issued by the University of Balochistan having allegedly appeared and A passed the B.A. (Supplementary) Examination held in the year 2006.
2. It may be noticed here that after the learned Election Tribunal to which the above-mentioned election petition had stood entrusted, had recorded some evidence including the statement of an Assistant Director (General) of the University of Balochistan, an application was pressed by the said respondent seeking dismissal of the said Election Petition on the ground that the said petition and a number of annexures and schedules appended therewith did not bear the verification as required by section 55(3) of the Representation of the People Act, 1976. The learned Tribunal accepted the said application through an order dated 2-4-2010 and without going into the merits of the case, dismissed the said application under section 63(a) of the Representation of the People Act, 1976 on the ground that:-- ".....The afore-noted photocopies of annexs attached to the election petition did not bear the verification of the election petitioner...... "
3. Hence this appeal.
4. The learned Advocate Supreme Court for the petitioner has been heard at some length and we have also perused the record.
5. Since this is a direct appeal under section 67(3) of the said Act of 1976, therefore, let a notice issue to respondent No 1 which notice shall be accompanied by a copy of this order and the paper-book of this appeal.
6. A notice shall also issue to the Registrar of Balochistan University to appear before this Court on the next date of hearing and to produce the complete record relating to the appearance of respondent No, 1 in the B.A. (Supplementary) Examination 2005-2006 under Roll No, 1693 including the admission form submitted by the said Aamir Yar respondent to take the said examination.
7. This notice and a copy of this order shall be sent to the said Registrar by fax in addition to the same being sent in due course.
8. To come up on 2-7-2010."
2. In response to the above said notice, Registrar of Balochistan University appeared and placed on record. "Final Probe Report" under the following subject. For sake of convenience, following paragraphs are reproduced therefrom:-- "Confidential Final Probe Report Confirmation of B.A. Result/Degree of external candidate Mr. Aamir Year son of Ahmed Yar Malik resident of Parliament Lodges Sector 6-5, Islamabad.
' Complaints Reg. No, 593-1570 dated 9-2-2008 - 25-3-2008.
Background of the Case
(a) Complaints were received by the Vice Chancellor's Secretariat one anonymous and the other from Mr. Muhammad Jamil son of Hakeem Ali resident of District Bahawalpur, Punjab, addressed to the Vice Chancellor, University of Balochistan complaining that the B.A. Pass Result Card issued in favour Mr. Aamir Yar son of Ahmad Yar Malik from University of Balochistan under Roll No, 1693 Supplementary Examination 2005, obtained by the candidate fraudulently.
(b) The complainant also mentioned some more information's with evidence that Mr. Aamir Yar is a professional and habitual cheater/conmen. During the financial year 1997, he received a Bachelor's Degree of Commerce fraudulently from Shah Abdul Latif University of Khairpur, Sindh, during the financial of year 2002. Election of National Assembly Mr. Amir Yar mentioning himself as a Bachelor of Commerce and got selected as a Member of National Assembly. Again, he contested from the same Constituently (NA-184 Bahawalpur-II) on 18th February, 2008 after obtaining, the Degree from Balochistan University.
' The concerned authority of Shah Abdul Latif University (SALU) Khairpur, Sindh Pakistan, through Notification No, Exam/Sec/SALU/KHP/ dated 19-9-2002, the certificate Serial No, 00176 bearing Seat No, 260 Annual 1997 obtained by Aamir Yar son of Ahmad Malik cancelled the same.
(c) The complainant also provided copy Judgment of Lahore High Court, Bahawalpur Bench, Bahawalpur Judgment Sheet No, W.P. No,2972 of 2003 date of hearing 1-2-2008, against Mr. Aamir Yar. He highlighted his (Aamir Yar) another fraud made by him with the Islamia University of Bahawalpur, Punjab. Regarding impersonation case against Mr. Ahmad Yar, letter/notice were issued to him by the Deputy Controller Examination (Conduct) dated 10-12-2007 to the Controller Examinations of the Islamia University of Bahawalpur, Punjab. In the letter under question, he was disqualified for three years and a fine of Rs, 2000 was also imposed and his disqualification started from 2nd Annual 2004 and ended on First Annual 2007 (March, 2007) (F/A)
Findings
(d) Record collected from the Registration Office of the University of Balochistan.
' The record collected from the Registration Office of the University of Balochistan, which the candidate submitted at the time of getting himself registered, was photocopy of Bank Challan dated 10th July, 2004 on account of fee deposited for the purpose of registration, photocopy of result of SSC Examination, photocopy of result of HSC Examination and Photocopy of CNIC.
' At the time of allotment of Registration No, A-82901 to him, he was directed to admit his NOC/Migration Certificate within 15 days, which he failed to submit. The date of birth mentioned in his result of SSC Examination is 5-2-1973, while the date of birth mentioned in his CNIC is 17-12-1966.
Both the date of births do not resemble with each other.
' The above mentioned two (2) discrepancies were not checked/pointed out by the staff of the Registration Office of the University of Balochistan Quetta and he was cleared to appear in the said examination by allotting him Registration No, A-82901.
' The Assistant Registrar. (S/A) University of Balochistan vide letter No, 218/10 Reg/04 dated 2-12- 2004 requested the Controller of Examinations for with-holding of the result of Mr. Aamir Yar son of Ahmed Yar Malik (on the basis of Provisional Registration) at Serial No, 57 along with other 70 candidates. The Controller of Examinations malted the same to the Assistant Controller of Examinations (Results) for withholding of the results. The concerned Branch of the Examination Section ignored the directives about withholding of the results. Consequently, a Degree bearing Serial No, 044845 under Roll No, 1693 dated 12-8-2006 was issued in his favour which was a gross laxity of the concerned Branch of Examination Section (F/B).
(e) Record/informations collected from the Examination (Certificate) Branch. .............................................................................................................................. .............................................................................................................................. ..............................................................................................................................
(b) Meeting of Unfair Means, Committee: ........................................................................................................................... ........................................................................................................................... ...........................................................................................................................
Conclusion
(a) After obtaining all the relevant information/records from the respective sections of the Registrar Office Examinations (General) Branch, Examinations (Conduct), Branch, Examinations (Result), Branch and Examinations (Certificates) Branch, it is hereby concluded that lot of doubts/evidence were created regarding the involvement of the candidate under question and the officials of the above mentioned Section/Branches of University of Balochistan, by helping the candidate with mala fide attention to appear in the said Examination and with their connivance, he succeeded to get the B.A. Degree and contested the National Assembly Election 2008 from Bahawalpur and got elected as MNA-184 Bahawalpur-II Punjab.
(b) Keeping in view the past background of the candidate and available records provided by the complainant, that Mr. Aamir Yar son of Ahmad Yar Malik is a professional habitual of using unfair means to achieve his objectives/goals with the involvement of the personnel of the institutions.
Recommendations:
(a) In my opinion, legal advice may be obtained from the Legal Advisor of the University of Balochistan before taking any action against Mr. Aamir Yar son of Ahmed Yar Malik, Member of National Assembly NA-184 Bahawalpur-II.
(b) Inquiry team should be initiated to conduct the inquiry against involved personnel's of the University of Balochistan in this case.
(Sd/-)
Noor Muhammad Khan Additional Controller of Examinations University of Balochistan, Quetta Dated 13th May, 2008 Encl: Annexure from 1 to 97
3. On our enquiry, the Registrar stated that University is not now claiming privilege on the report.
The report has thoroughly dealt with subject noted above. It is further informed by the Registrar that now the matter was placed for consideration before Academic Council and after their decision, degree obtained by the respondent No, 1 has already been cancelled by the University.
Copy of the said notification dated 19th June, 2009 reads as under:-- "Office of the Registrar University of Balochistan Quetta No, 250 (Acad) (09) Dated: 19th June, 2009 ' Notification ' It is to inform to all concern that the Academic Council in its meeting held on 17-5-2009 approved the Recommendation of UFM Committee and Cancelled the B.A. Degree of Mr. Aamir Yar son of Ahmad Yar Malik under Roll No, 1593 Session Supplementary Examination 2005 - 2006 acquiring bogus Degree from the University of Balochistan and keeping the Authority in Dark.
(Sd/-) Registrar Prof. Dr. Naeem Farooqui"
' The above notification has been issued on the recommendation of the Unfair Means Committee which is a statutory body. He further informed that recently on 28th June, 2010 the respondent Aamir Yar has preferred an appeal which now shall be sent to the Syndicate, another statutory body for hearing and disposal according to law.
4. Facts relevant besides noted above are that respondent No, 1 who has been declared as returned candidate in election of 2008 from N.A. 184-Bahawalpur. His candidature was challenged at the time of filing of nomination papers but objection was turned down by the Returning Officer.
The present appellant being one of the contesting candidates approached the Election Tribunal at Lahore High Court and challenged order of acceptance his nomination papers under ROPA, 1976 in Election Petition No, 55-A of 2007 but the same was dismissed by the Election Tribunal on the ground that the matter involves factual controversy.
' Being aggrieved from the order of the Tribunal, a writ petition was filed which resulted in no relief to the appellant as well. In the meanwhile, election was held and 'respondent No, 1 was declared as returned candidate by the Election Commissioner of Pakistan. Thus the Notification was challenged before the Chief Election Commissioner for declaring that respondent was, not a graduate but before any decision could be given Election Tribunal had been constituted therefore, the appellant filed election petition on the ground that he was not possessed of valid graduate degree. During the pendency of the election petition, an application was moved before the Tribunal that election petition be dismissed as it was not fulfilling requirement of section 55(3) of the ROPA, 1976. Such application was allowed and on 2-4-2010 appellant was non-suited.
' It has been brought to our notice that it is not that for the first time but earlier too the present respondent had managed to go into election on the basis of fake and bogus degree which matter was ultimately brought to this court against the present respondent and was decided vide its judgment dated October 3, 2002 reported as Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others (2004 SCM R 1602).
' In the earlier election the respondent was relying on a degree obtained from Islamia University, Bahawalpur which was found to be bogus and was not issued by the University at Bahawalpur.
Somuch so that a criminal case has been registered vide F.I.R. No, 407 of 2004 on 2nd November, 2004, Police Station Chishtian, District Bahawalnagar and same is pending for consideration before the criminal court due to unknown reasons. On behalf of appellant main emphasis at this stage is that respondent No, 1 is not a graduate therefore, he was and is disqualified to contest election and to continue to hold membership of National Assembly.
5. On the other hand, Mr. G.N. Gohar, learned counsel for the respondent No,1 stated that respondent has tendered his resignation which has been accepted as per Notification dated 1st July, 2010 under the signatures of the Secretary of National Assembly, copy of the resignation has not been placed on record in order to ascertain the circumstances under which he has tendered resignation. However, prima facie, it seems that apprehending a verdict of this court, on the question of degree possessed by him he has submitted resignation.
6. A person who offers himself for an election for the seat of the Parliament or a Provincial Assembly so to represent elections of his own constituency is required to fulfil the qualification as laid down under Article 62 of the Constitution and that he shall not suffer from any disqualification as envisaged under Article 63 of the Constitution of Islamic Republic of Pakistan, 1973.
' Thus, while submitting nomination paper in Form-I under rule 3 of the Representation of the People (Conduct of Election) Rules, 1977, he makes a declaration. Relevant para therefrom is reproduced as under:- "Declaration and oath by the person nominated.
1. I, the above mentioned candidate, hereby declare on oath that:--
(i) I have consented to the above nomination and that I fulfil the qualifications specified in Article 62 of the Constitution and I am not subject to any of the disqualifications specified in Article 63 of the Constitution or any other law for the time being in force for being elected as a member of the National Assembly/Provincial Assembly".
(ii).................................................................................... ........................................................................................
' Similarly, under section 12(2) of the Representation of the People Act, 1976, every nomination filed by a candidate shall accompany the following declaration:--
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as Member".
7. This court prior to the instant case in an identical matter in the case of Nawabzada Iftikhar Ahmad v. Chief Election Commissioner and others (C.P. No, 287 of 2008 decided on 25th March, 2010) and in C.A. No, 409 of 2010 filed under section 67 of the ROPA against the judgment dated 28th May, 2010 passed by Election Tribunal, Lahore has made the following observation:-- "12. While dealing with the matter of Nawabzada Iftikhar Ahmad v. The Chief Election Commissioner and others (Civil Petition No, 287 of 2008 decided on 25-3-2010), this court had highlighted the significance of a country and hence the dire need to protect their majesty, their dignity, their sancitity and their purity. Following is what had been observed by this Court, through this judgment; "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 serving its very destiny. And here 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 sancity, the dignity and the majesty of the said august House".
8. In instant case we are of the opinion, that in view of given facts and circumstances of the case which have been reproduced hereinabove prima facie, it appears that the matter is required to be dealt with by Chief Election Commissioner in accordance with the provision of section 78 of the ROPA, 1976 etc. Details of which have already been mentioned in above judgment. Therefore, in discharge of our constitutional and . Legal duty, we direct the Chief Election Commissioner to proceed accordingly against respondent No,
1. Aamir Yar following the observations already made in the judgment.
9. However, office is directed that copy of Final Probe Report dated 13th May, 2008 submitted by the Registrar University of Balochistan shall also be sent to Chief Election Commissioner for perusal and action accordingly.
Thus, with the above observations, Civil Appeal No,191-L of 2010 is disposed of, leaving the parties to bear their own costs.