GHULAM RABBANI, J.---Through this Civil Appeal under section 67(3) of the Representation of the People Act, 1976, the appellant has challenged the judgment dated 21-6-2010 whereby, on an Election Petition No,204 of 2008 filed by respondent No,1 Ch. Bilal Ijaz, the election of appellant to the seat of NA-100 Gujranwala-VI was set aside and the notification dated 1-3-2008 to the extent of declaring him as returned candidate was ordered to be cancelled.
2. Succinctly stated, the facts of the case are that the appellant contested with respondent No,1 and other candidates general elections of 2008 as an independent candidate for National Assembly from Constituency NA-100-Gujranwala-VI and, having secured highest votes (57320), he was declared a returned candidate. Before that in previous general election held during the year 2002 the appellant had been elected MPA from PP-102 District Gujranwala. At that time one Muhammad Amin had challenged that election of the appellant by filing before Lahore High Court a Writ Petition No,21578 of 2002 seeking, among others, a declaration that the election of the appellant be declared illegal and without lawful authority as he was not eligible under law to hold public office. The main ground taken in the said writ petition was that neither the appellant had passed his matriculation examination nor he had passed B.A. Examination and on the basis of bogus and forged B.A. Degree he contested the said election for which he was not qualified".
Aforementioned Writ Petition remained pending till next general elections and was disposed of on 15-9-2008 having become infructuous as the tenure of appellant as Member of the Provincial Assembly was completed in the meanwhile. However, as it appears, the filing of the said writ petition led to the constitution of a Scrutiny Disciplinary Committee to look into the allegation levelled against the appellant as regards his claim that he was a degree holder. This Committee concluded its proceedings resulting into findings vide its report dated 1-2-2005 (Exh. P2) which, in this matter, significantly affected appellant's election for National Assembly seat in general elections of 2008 leading to the making of impugned judgment. The said report shall be taken note of and discussed hereinbelow at its appropriate place.
3. Be that as it may, since in the general election of 2008 the appellant was declared a candidate returned to the National Assembly from the constituency NA-100-Gujranwal-VI vide notification dated 1-3-2008 issued by the Election Commission of Pakistan, the respondent No,1 challenged the election by way of Election Petition No, 204 of 2008. The appellant contested this petition by filing written reply, but did not lead evidence while respondent No,1 produced his evidence. The Tribunal after examining the same in the light of pleadings decided the petition vide judgment impugned herein. The relevant portion from its concluding para is reproduced as follows:-- "24....the respondent No,1 is found involved in unfair means as declared by the Disciplinary Committee of the University of the Punjab through Exh.P2 and Exh.P3. The respondent further concealed his disqualification as declared by the University of the Punjab of three years and fraudulently applied before Islamia University of Bahawalpur for appearing in Second Annual Examination, 2006 and produced a B.A. Degree from the said University in the year 2007. He submitted his written statement Exh.P12 in the Writ Petition No,21578 of 2002 claiming himself to be a valid B.A. Degree holder from the University of the Punjab at the time of contesting the elections of 2002 of PP-102 Gujranwala-XII whereas during the recording of evidence of the instant election petition, he suggested to P.W.1 that he has not passed B.A. Examination from the University of the Punjab. He procured his B.A. Degree from Islamia University Bahawalpur by concealment of facts and fraudulent means. He is declared a person who is neither righteous nor honest and ameen. His election to the seat of NA-100 Gujranwala-VI is, therefore, set aside and the notification dated 1-3- 2008 to the extent of respondent No,1 of his being returned candidate of NA-100 Gujranwala-VI is ordered to be cancelled."
(Emphasis supplied)
4. We have heard learned counsel for the parties and with their assistance we have examined the material made available before us. Careful reading of above-noted passage from the impugned judgment reflects that the appellant was declared a person neither righteous nor honest and ameen on three grounds. The first one relates to appellant's involvement in unfair means as was declared by the Disciplinary Committee of the University of the Punjab; the other relates to his statement in his "written statement" filed in Writ Petition No, 21578 of 2002 claiming himself to be a B.A. Degree holder from the University of Punjab at the time of contesting the election of 2002 for Provincial Assembly Seat PP-102 Gujranwala-12, which was negated by his own suggestion in cross-examination of a Deputy Controller of Examination, University of Punjab recorded in Election Petition; and the third ground relates to his conduct in procuring B.A. Degree from Islamia University Bahawalpur by concealment of facts and fraudulent means. Now, the question will be whether the Tribunal rightly based its decision on these grounds? We will discuss the same as follows.
5. As regards first ground, record shows that the petitioner, as per his own claim, had previously obtained a B.A. Degree from the University of the Punjab on the basis of which he contested and won the general election of 2002 for Provincial Assembly Seat PP 102. Subsequently, that degree of his came under investigation of a Scrutiny Disciplinary Committee of University of the Punjab, which, after examining the material available before it found the appellant guilty of having managed to pass the B.A. Examination through illegal means and disqualified him for a period of three years and decided that his result be quashed vide report dated 1-2-2005 (Exh.P.2) and such intimation (Exh.P.3) was given to the appellant. The aforementioned report was produced in evidence of P.W.1 Muhammad Rauf Nawaz who was Deputy Controller Examination, University of the Punjab and custodian of this document. It is reproduced in extenso as follows:-- REPORT "The candidate Mr. Mudassar Qayyum, Roll No, 70614, B.A. First Annual Examination, 1993 appeared before the Disciplinary Committee on 23-9-2004 and 4-11-2004. He was asked to explain his position but he stated that he will submit his reply within two or three days after consulting his Legal Advisor. He was again called on 27-11-2004, 16-12-2004 and 1-2-2005 to appear before the Committee but did not appear. However, a telephonic message was received on 1-2-2005 that he cannot appear before the Committee. The Committee felt that the candidate is evading to appear before its meeting. Therefore, the Committee decided to proceed against him ex parte.
' The Committee examined the documents available in the file as well as the relevant record. It was noted that result of the candidate was declared as "fail in two subjects Punjabi and History, R.L. Fee and Permission" in the Result Notification. He was shown absent in Punjabi and History on the Result Sheet and marks were also written thereon. Award Lists of Punjabi-A and History-B are also pasted on the Result Sheet whereas Award Lists of Punjabi-B and History-A are not available. The Committee compared the handwriting on the Awards of Punjabi-A and History-B with the Award Lists of other candidates pasted on the Result Sheet and noted that the handwriting on the Awards of the said candidate is different from other Awards. The Committee also noted that as per statement of concerned clerk Mr. Muhammad Yaqub his signatures on the B.A. Result Card of the candidate are bogus. Mr. Muhammad Yaqub also mentioned in his statement that the signatures of the Assistant Controller are also bogus. The Committee also examined the findings of the Inquiry Committee of Examinations Department as well as of Scrutiny Committee and noted that as per final report of Scrutiny Committee result of the candidate is bogus. Admission Form of the candidate of B.A. Examination was incomplete because of which he was issued three letters requesting him to provide his documents i,e,, original F.A. Certificate, Admission Memo Form and original National Identity Card but no response was received. Roll No, of passing F.A. Examination was not written by the candidate in his Admission Form, due to the reason photo copy of F.A. Result Card was sent to the Secretary, Lahore Board who verified that F.A. Result is correct.
' After going through the case on various aspects the Committee observed that the candidate managed to pass the B.A. Examination through illegal means with the connivance of some one.
' The Committee after considering the case held the candidate guilty and disqualified him for a period of three years under Regulations 13 and 14. The Committee also decided that result of the candidate be quashed. The Committee further decided that an inquiry be held against the concerned staff. Sd/- Secretary Disciplinary Committee 1-2-2005, Members of the Committee
1. Prof. Dr . Shahida Hasnain, Chairperson, Department of Botany , Punjab University , Lahore.Sd/- 1-2-2005
2. Prof. Dr . Muhammad Hafeez, Department of Sociology , Punjab University , LahoreSd/- 1-2-2005
3. Prof. Sami Ozair , University Law College, Punjab University , Lahore."Sd/- (Emphasis supplied)
6. It will be important to note that neither constitution of the Scrutiny Disciplinary Committee nor the finding of Committee in its report dated 1-2-2005, reproduced supra, were denied. It was also not the case of the appellant that he challenged this report. Before the Tribunal, he preferred not to enter into the witness box, safely presumed, to avoid the test on cross-examination lest the truth may not get unveiled. Needless to observe that the appellant, who was respondent in election petition, had made a categorical statement on 10-5-2010 before the Tribunal that "No evidence is required to be produced on behalf of respondent No, 1". This fact was also not denied by the learned counsel for the appellant during the course of his arguments. Be that as it may, learned Presiding Officer of Election Tribunal has dealt with this point pertinently and after taking the report (Exh.P.2) and other material on record in consideration has given its findings, rightly so, that "the respondent No,1 is thus proved to have been involved into the allegations of use of unfair means by the Disciplinary Committee of the University of the Punjab" and that "the respondent has not appeared in the witness box as well to controvert the allegations against him which are proved through the documents Exh.P2 and P3 and the statement of P.W.1 Deputy Controller of Examination University of the Punjab Lahore. Thus allegations levelled in the election petition are not only proved through the above evidence but have also not been rebutted."
7. Coming to other ground relating to appellant's statement as to his claim in his "written statement" in Writ Petition No, 21578 of 2002 that he was a B.A. Degree holder which he himself refuted by way of suggestion in cross-examination of P.W.1. In this behalf it may be stated that while dilating on this point the Election Tribunal has observed that "It is also interesting to note that in the written statement Exh. P-12 submitted to Writ Petition No, 21578 of 2002 the respondent No,1 categorically claimed himself to be holder of B.A. Degree from the University of the Punjab and has not produced any such degree during his evidence before this Tribunal. The allegations against respondent No,1 of his involvement in unfair means by the Punjab University B.A. Examination not only stand proved through documents Exh.P2 and P3 but even his contention which he raised before the High Court in the written statement Exh.P. 12 that he has validly passed B.A. Examination 1993 appeared to be a total false statement. The trend of cross- examination on P.W.2 which I have reproduced earlier clearly shows that respondent No,1 has not passed the B.A. Examination from the University of Punjab as he was declared fail due to his involvement in case of unfair means and it was so admitted when the following suggestion was made to the said P.W.2.
"It is correct that Muddasar Qayyum Nehra has not passed B.A. Examination from University of Punjab as per our record".
' We have carefully gone through the written statement of appellant in Writ Petition No, 21578 of 2002 (para No,4 thereof "on merits" referred to) copy whereof has been placed on record by appellant. In this petition the appellant was a respondent. He claimed therein in an unequivocal terms that, "the answering defendant passed his B.A. Examination from the University of Punjab in 1993 and he had correctly filed declaration along with nomination papers that he was B.A". In para No, 10 of the said written statement, he stated that "the documents presented by the answering respondent before the Returning Officer in respect of his educational examination of B.A. Were correct and were neither fake nor bogus". In para No, 12 he stated that "the result card issued by the University of Punjab showing that answering respondent has passed his examination in 1993 is quite genuine and correct". These statements were supported by him by way of an affidavit on oath. The deposition of Muhammad Rauf Nawaz, Deputy Controller Examination, University of Punjab, Lahore (P.W.1) filed by the appellant reflects that on a question posed to him in his cross- examination by appellant's counsel this witness replied that, "it is correct that Muhammad Qayyum Nahra has not passed B.A. Examination from the University of Punjab", which runs counter to what has been stated by the appellant in his above-noted written statement. Be that as it may, the question whether the appellant was a B.A. Degree holder from the University of the Punjab has already been discussed in the preceding part of this judgment, which sufficiently shows that the Disciplinary Committee of the University of the Punjab had declared (Exh.P-2) the appellant to have passed B.A. Examination through illegal means and was, therefore, disqualified for a period of 3 years meaning thereby, it could not be said that the appellant while making the statements as above in his written statement (Exh.P-12) was truthful.
8. The third ground relates to appellant's conduct in procuring B.A. Degree from Islamia University Bahawalpur by concealment of facts and fraudulent means. In this behalf, learned counsel for appellant took a plea that in obtaining B.A. Degree from Islamia University Bahawalpur, no element of fraud or concealment of actual facts was involved. He argued with vehemence that the appellant was eligible to appear in 2nd annual B.A. Examination for the year 2006 held by Islamia University of Bahawalpur in true spirit of letter dated 8-2-2005 (Exh.P.3). According to him, the appellant appeared in that examination, passed the test, and was awarded the B.A. Degree ultimately making him qualified to contest the election with no illegality appearing therein. His contention was, however, opposed by learned counsel for respondent No,1, who stated that the Tribunal had given correct finding on this point which was substantiated by valid reasons, therefore, he, squarely, placed reliance on the impugned judgment. We have given due attention to submissions of both the learned counsel and have also gone through the impugned judgment. It is evident that learned Presiding Officer of Election Tribunal has examined this aspect of the matter very carefully and has observed as follows:-- "20. Now what he did then that he applied in the Islamia University of Bahawalpur for B.A. 2nd Annual Examination 2006 by showing his address at H.No, 3, Street No, 5, Mahajar Colony, Bahawalnagar. His Admission Form for Bahawalpur University is Exh. F4. Copy of his NIC has been produced as Exh. F5 and the entries of his address given both in NIC and National Data Base of Registration Authority Record are different from those given in his Admission Form for Bahawalpur University Examination of 2006 Exh.F4. It also appears that the respondent No,1 did not disclose before the University of Bahawalpur his three years disqualification on account of his involvement in unfair means in, the University of the Punjab B.A. Examination. At least he did not state so in his written statement. In this way, he managed to appear in Islamia University Bahawalpur in the year 2006 through fraudulent means by concealing his previous disqualification imposed by the University of the Punjab and also by giving his incorrect address before the Bahawalpur University which is different from his address given in the NIC Exh. P5 and Data Base of Registration Authority record entries Exh.P10. The disqualification of three years which was imposed upon the respondent No,1 by the University of the Punjab was effective for three years from 1-2-2005 as is reflected in documents Exh. P2 and P3. Had the respondent No,1 disclosed his previous disqualification as declared by the University of the Punjab before Islamia University of Bahawalpur while appearing in the 2006 examination of the latter University, he would not have been allowed to appear in the University of Bahawalpur for examination at least during the subsistence period of his disqualification which expired in February, 2008. Thus procuring of the B.A. Degree from the University of Bahawalpur by the respondent No, 1 is also based upon concealment of facts and constitutes a fraudulent and dishonest act. The respondent No,1 did not at all appear in his evidence before this Tribunal and failed to rebut allegations proved against him."
9. It may be stated that Exh.P-2 is report of Disciplinary Committee which, beside its Secretary, is signed by three Professors who were its members; whereas, Exh.P-3 is a letter dated 8-2-2005 issued by the Secretary of the Committee obviously to inform the appellant about the decision of the Committee. We have in the preceding part of this judgment reproduced the above report in extenso while the letter dated 8-2-2002 is reproduced as follows:-- "University of the Punjab No.................................................. /U-200 Dated.......................... ..................200 Registered From : The Secretary, Disciplinary Committee, University of the Punjab, Lahore.
To, Mr. Madusur Qayyum son of Sultan Ahmad, 2-C, Peoples House, Lahore.
' UNFAIRMEANS CASE OF ROLL NO. 70614 OF THE B.A./B.Sc. First Annual Examination, 1993. HELD IN May, 1993.
' This is to inform you that you have been disqualified for using unfair means in the above mentioned Examination for the period of three year/s under Regulation/s 13 and 14 of the pages 592-95 of the University Calendar Volume-I for the year 2002. XXXXXXX You are eligible to appear in the next examination.
SECRETARY DISCIPLINARY COMMITTEE Endt. No, 206..... U-2005 Dated 8-2-2005 ' Copy is forwarded to the following:--
(i) Deputy Controller Examinations/Computer for information and making entry in the record.
Result of the candidate
(ii) Deputy Registrar (General) for making entry in the Register of students. (Re Registered No, of the candidate is 93-Z-17601 SECRETARY DISCIPLINARY COMMITTEE"
(Emphasis supplied)
' The report (Exh.P-2) is a basic document which contains the decision of the Committee in categorical terms that appellant was guilty of managing to pass the B.A. Examination through illegal means in collusion with someone else and that he was disqualified for three years. Nowhere therein, the Committee is shown to have decided that appellant would be eligible to appear in the next examination. As against this, it is evident that while communicating the decision by way of letter reproduced above an addition has been made that appellant is "eligible to appear in the next examination" which runs counter to; rather in derogation of the decision of the disciplinary committee. It would, therefore, be absolutely illogical not to believe the basic document containing the decision of the Committee that appellant was disqualified for three years. Thus, counting the day of making that decision viz. 5-2-2005, the disqualification of the appellant would come to an end in the year 2008. Be that as it may, there is nothing on record to show that at the time of taking admission, if any, in University of Bahawalpur, appellant brought the basic document to the notice of University authorities. Therefore, in our opinion, learned Presiding Judge of Election Tribunal has rightly held that had the appellant disclosed his previous disqualification; more so, it is said, by bringing the report (Exh.P-2) to the notice of Islamia University, Bahawalpur; he would not A have been allowed to appear during subsisting period of disqualification. Admittedly, the appellant has preferred not to put himself in witness box; palpably so, to avoid searching questions in cross- examination. We, therefore, find no infirmity in the finding of Tribunal on this point and uphold the view so expressed hereinabove by Election Tribunal.
10. Having dealt with the case as above, we come to the next question whether the appellant has, rightly or not, been declared a person neither righteous nor honest and Ameen. Learned counsel pleaded, that while deciding the Election Petition learned Presiding Officer of the Tribunal went beyond what the election petitioner had sought in his petition and in that gave a finding in respect of the appellant that "he is declared a person who is neither righteous nor honest and ameen".
Learned counsel strongly criticized this finding and contended that it was improper, preposterous and was totally uncalled for.
11. In the first place, we will dilate upon the objection of learned counsel for appellant that the Tribunal has gone beyond the prayer of respondent No,1 in his Election Petition. In this behalf it may be stated that to determine the question, it will be pertinent to refer to the contents of Election Petition filed by respondent No,
1. In this petition in para No,11, he stated that "the conduct of the respondent No,1, as detailed herein above, clearly proves beyond any shadow of doubt that he does not possess good character and he is neither sagacious, righteous, non-profligate nor honest and Amin and, therefore, not at all qualified and disqualified from being chosen and elected as a member of National Assembly under Clauses (d) (f) and (i) of Article 62 and Clause (s) of Article 63 of the Constitution of the Islamic Republic of Pakistan". Thus, it is evident that respondent No, 1 had pressed this point. Be that as it may, it is well-settled that a discretion is vested in this behalf in the Court to be judicially exercised in appropriate cases in order to do complete justice between parties and mould the reliefs according to the altered circumstances in larger interest of justice.
Case of Mst. Amina. Begum and others versus Mehar Ghulam Dastigar (PLD 1978 SC 220) is referred.
Also, in case Ahmad Nawaz Khan versus Muhammad Jaffar Khan and others, (2010 SCMR 1984), it was held that "Courts have powers to grant effective or ancillary relief even if not prayed for".
Therefore, in our view, the Election Tribunal was justified, in the given circumstances, to grant the relief even if it was not prayed. Accordingly, we find no force in the arguments of learned counsel for appellant that the Tribunal had gone beyond the prayers of respondent. Now, we will come to the real issue under discussion whether the appellant has, rightly or not, been declared a person who is neither righteous nor honest and ameen. In this behalf before proceeding further, it will be advantageous to refer to the relevant provision of constitution viz. Article 62(1)(f) which is reproduced below:-- "62. A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless-- (a)........................................................................
(b)........................................................................
(c)........................................................................
(d).......................................................................
(e)........................................................................
(f) he is sagacious, righteous and non-profligate and honest and ameen; ' Learned Presiding Judge of the Tribunal considered a variety of grounds, as discussed in detail in foregoing paras of this judgment and pertinently observed that:-- "21. The concept of inserting Article 62 clause (f) in the Constitution is very purposeful; Constitution of Islamic Republic of Pakistan, 1973 cannot be said to have incorporated the said clause without any meaningful objective. The holders of Public offices like members of National and Provincial Assemblies are expected to be persons of unimpeachable character. The terms used in clause (f) of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973 need to be understood and implemented in order to stop dishonest and cheatful persons from entering into the corridors of the National and Provincial Assemblies. The words written in clause (f) are thus reproduced below which are denied and interpreted in well known English Dictionaries as are available on web- side/internet with universally accepted meanings:-- Sagacious
(i) Skillful in statecraft or management
(ii) Marked by artful prudence expedience and shrewdness
(iii) Having prompt wisdom
(iv) A wise leader
(v) Insightful; foresighted Righteous
(i) Morally upright, without guilt or sin
(ii) Characterized by accepted standard of morality or justice
(iii) Good: morally admirable
(iv) Clean handed; guiltless
(v) Just: Used, especially of what is legally or ethically right or proper or befitting
(vi) Moral: concerned with right and wrong or conforming to standards of behavior: morally excellent worthy
(vii) Virtuous; morally excellent worthy
(viii) Worthy; having worth or merit or value; being Hon'ble or admirable
(ix) Honest: blameless Non profligate
(i) Recklessly wasteful
(ii) Wildly extravagant
(iii) Shamelessly immoral or debauched
(iv) Spendthrift
(v) Prodigal in their expenditures
(vi) Squandering Honest
(i) Displaying integrity; upright
(ii) Not deceptive or fraudulent
(iii) Characterized by truth; not false
(iv) Sincere
(v) Not given to cheating Ameen (An Arabic word) Meaning:-- ' Trustworthy: faithful
22. The concepts projected in using all the above terminology is not difficult to understand. It demonstrates a keen desire of the Constitution that persons desiring to engage themselves in the process of law making for the country must themselves be possessed with High qualities of personal character and moral values. A legislator who indulges into unfair means in earning or procuring his educational documents cannot be termed to be possessing the required standards of high personal characteristics mentioned in clause (f) of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973. Members of the National or Provincial Assemblies on their successful election have been further obliged to take oath as incorporated in the third schedule of the Constitution, with necessary condition of undertaking the performance of the duties and functions honestly in accordance with constitution. Elected members are further likely to be entrusted with the other high and onerous offices of the Prime Minister, Federal Ministers, Speaker of the National and Provincial Assemblies, Deputy Speakers of the National and Provincial Assemblies and Chief Ministers of the Provinces. The swearing of solemn oath from such holders of public offices are also prescribed in the Constitution requiring similar performances of duties and functions with honesty and also to be faithful to be Constitution and the law. A person who indulges into using unfair means in procuring his educational qualifications and is also found guilty by the Disciplinary Committee, which is the only authority competent to inquire into the matters of such allegations against candidates appearing in the examination of the said University, does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non profligate, honest and Ameen have been used by the Constitution of Islamic Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members of National or Provincial Assembly cannot be allowed to be frustrated if persons who secure their educational documents through unfair means and are found guilty of such a condemnable act by file competent authority are allowed to be given entry into the doors of National or Provincial Assemblies or our country. The respondent No,1 not only is found guilty of a dishonest or cheatful involvement into the use of unfair means in procuring his B.A/degree/results from the University of Punjab but also made deliberately false statement before this Tribunal as well when P.W.1 was suggested that he was admittedly not holder of the B.A. Degree from the University of the Punjab whereas in his written statement Exh.P12, the respondent where he was respondent No,4 in the said writ petition categorically took up the plea and claimed to be holder of a valid B.A. Degree from the University of the Punjab. He is thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of Law Making; to be in-charge of the National Exchequre or be eligible to represent the people of Pakistan."
12. On careful examination of the case of appellant in the light of above discussion in detail, as a whole, on all points involved, in our estimation, the above finding of learned Presiding Officer of Election Tribunal has correctly been given which is unexceptionable. The appellant has rightly been declared a person who is neither righteous nor honest and ameen.
13. The impugned judgment, therefore, suffers from no legal or factual infirmity to warrant interference and this appeal having no merits is accordingly, dismissed. No order as to costs.