JUDGMENT MUHAMMAD KHALID MEHMOOD KHAN, J.---With the consent of all parties, the petitions are being disposed of as `pacca' case.
Through this single order, I will decide two writ petitions i.e. Writ Petition No.4923 of 2010 and Writ Petition No.6191 of 2010. Through this constitutional petition (Writ Petition No.4923 of 10), petitioner has prayed as under:-- "It is, therefore, respectfully prayed that this writ petition may kindly be allowed and appropriate writ of quo waranto may kindly be issued against the respondent No.2 while declaring him not lawful entitled to hold the office of MPA of Constituency No. PP-195 Multan. Respondent No.1 may graciously be directed to issue notification in this regard."
2. The petitioners in their petitions assert, that being the citizen of Islamic Republic of Pakistan they are registered voters as is evident from the voter list, their vote is registered in Constituency PP-195 Multan; one of the petitioners is lawyer by profession, the respondent No.2 is elected Member of Provincial Assembly Punjab is not holding required qualification of graduation as per section 99- CC of Representation of the People Act, 1976 as such he is not eligible to hold the office of legislator.
3. The petitioner has arrayed, Chief Election Commissioner Islamabad, BahaudDin Zakaria University, Multan, Government of Punjab through Secretary Education, Al-Khair University, Board of Intermediate and Secondary Education, Multan in addition to legislator.
4. The precise grievance of petitioner is as under:-- "That since respondent No.2 does not possess required qualification of graduation as mentioned under section 99-CC of Representation of the People Act, 1976, therefore, he is not eligible to hold the office of Member Provincial Assembly".
5. The respondent No.3 Baha-ud-Din Zakaria University submitted as under:-- "No Educational Institution.
Situated within the territorial limits of the university shall, save with the consent of the university and sanction of the Government, be associated in any way with or seek admission to the privileges of any University. The above referred provision has been enacted in order to control the new Educational Institutions in order to create harmony and keep the other Educational Institutions under the control of University which was purposely done to maintain the standard of education too."
6. All other respondents although appeared but have not opted to file report and parawise comments. However, the respondent No.2 contested the petitioner vehemently and raised number of legal as well as factual objections and filed detailed reply along with documents.
7. Learned counsel for both the parties argued the case at length.
8. Learned counsel for petitioner submits that, he being the citizen of Islamic, Republic of Pakistan is the registered voter of Constituency No.PP-195 and as such is an aggrieved party being a law knowing person as well the registered voter, the respondent No.2 succeeded to be elected as legislator of Provincial Assembly of Punjab in spite of fact that he does not possess required educational qualification in terms of section 8(a) of the Conduct of General Elections Order, 2002, he submits that compliance of said provision of law is mandatory, respondent No.2 at the time of filing his nomination papers mentioned in his application that he is holding B.Sc. Degree, but he annexed only a result card purportedly issued by Al-Khair University, AJK, the said certificate shows that respondent has been declared pass in B.Cs, the result card if even admitted allegedly issued by respondent No.5 is meant for Bachelor of Computer Sciences, the computer sciences degree is not recognized degree as Bachelor of Arts, it is just a certificate, the election of respondent No.2 is hit by section 99-CC of Representation of the People Act, 1976, the result card submitted by respondent No.2 is forged document as declared by respondent No.3, he submits that alleged certificate issued from the Multan Campus does not exist in Multan, the respondent No.4 has already declared respondent No.5 a fake university, he refer a press release issued by respondent No.3 that public at large if will get admission in respondent No.5 that will be at his risk and costs, the director/ principle Al-Khair University College of Education Multan and D.G. Khan admitted that, he started courses only of B.Ed/M.Ed degrees of the students and this campus was closed in the year 1999 as directed by respondent No.5. He finally adds that respondent No.2 is liable to be deseated.
He relied on Mian M Azam Chaila v. Walid Ali Khan and others- (PLD 2009 Lahore 449).
9. Learned counsel for the respondent No.2, the only contesting respondent, submits that, petition is not maintainable as the petitioner grievance if any is the sole subject of Article 225 of the Constitution of the Islamic Republic of Pakistan, 1973, he submits that Higher Education of Pakistan under the direction of respondent No.1 is in the process of verifying the educational degrees and as such in its absence the petitioner is liable to be thrown out. The present petition has been filed on the behest of losing candidate, learned counsel submits that petitioner is not an aggrieved party, he submits that petitioner has not raised any objection against the candidature of respondent No.2 at the time of acceptance of his nomination papers, he lastly submits that respondents degree has already been verified by the Higher Education Commission and as such the petitioner become infructuous. He submits that Higher Education Commission has already declared that, HEC will not recognize any degree issued by Al-Khair University issued after April 30, 2009. He has relied on Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010. SC 1066), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396) and Commissioner of Sales Tax (West) Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180).
10. Heard, record perused carefully.
11. It is an admitted fact that respondent No.2 is elected Legislator, he contested the election when his nomination papers were accepted by the competent authority, the petitioner has not raised any objection of any nature at the time of acceptance of nomination papers. Though the present constitutional petition, he has invoked the extraordinary jurisdiction of this Court, the claim of petitioner is that he being the citizen of Pakistan is a registered voter of Constituency of PP-195 which is now represented by the respondent No.2. The petitioner claims that respondent No.2 is holding fake degree of graduation, which is the condition precedent for contesting the general election of National and Provincial Assemblies in terms of section 8(a) of the Conduct of General Elections Order, 2002 and section 99-CC of Representation of the People Act, 1976.
12. There is no denial of fact that respondent No.2 if is not holding genuine degree of graduation, no right is available to him for contesting the election, it is also admitted fact that at the relevant time, the condition of graduation was fully applicable, but the question what is the proper time in law to challenge genuineness or in genuineness of the candidature of legislation, eligibility to offer himself the voters of constituency for electing him their representative.
13. The nomination papers submitted by respondent shows that he declared his education as B.Sc.
But date of issuance of the degree is not mentioned any where as is evident from Annex-B, no one from public at large objected the nomination before the Returning Officer and his documents were accepted and finally the respondent was elected as provincial legislator.
14. The petitioner after taking oath by respondent No.2, challenged the validity of respondent's educational degree through the present petition on 25-5-2010. It is an admitted position of law that Representation of the People Act, 1976 is the comprehensive code on the subject of election, which provides complete procedure and mechanism for resolution of all disputes of whatsoever nature, and its process starts on issuance of Notification by the Election Commissioner, etc. Election Process has two parts, one starts from the Date of notification of election and continue Till the declaration of the result; the second Process shall start on the day of polling and A terminates with the declaration of result of Election and is known as post-poll stage. Learned counsel for petitioner has heavily Relied on the judgment of Hon'ble Supreme Court of Pakistan reported as Nawabzada
23. Iftikhar Ahmad Khan Bar v. Chief election 24. Commissioner Islamabad and others (PLD 2010 SC 817) and submits that Returning Officer appointed under section 7 of the Representation of the People Act, 1976 is the person who has to ensure the conducting of honest, just and fair election in accordance with law as commanded by Article 218 of the Constitution of the Islamic Republic of Pakistan, 1973 and if the petitioner has not raised the objection at the time of acceptance of nomination paper, the Returning Officer has not been absolved from his duties and, as such, due to failure of Returning Officer to scrutinize the nomination paper of petitioner properly, justly and fairly, this Court in its constitutional jurisdiction can take cognizance of the matter itself. No doubt the dictum laid down by the Hon'ble Supreme Court of Pakistan is the law declared by the Court. The said judgment came for consideration before the Hon'ble Supreme Court of Pakistan in case of Rana Aftab Ahmad Khan v. Muhammad Ajmal and another (PLD 2010 SC 1066) and the Hon'ble Supreme Court of Pakistan has held as under:-- "We are also not impressed by the submission that the Returning Officer should have suo motu Rejected the respondent's nomination paper, or that in view of the alleged imminent and Inherent disqualification the High Court should have independently debarred him from contesting the election; moreover, the reference in this behalf made to paragraph No.21 of the judgment declined in C.P. No.287 of 2008 is misconceived as that direction was restricted to the case of Mr. Jamshed Dasti and that too in his case."
15. The Hon'ble Supreme Court of Pakistan in the judgment (supra) while dilating upon the point of maintainability of writ petition in the circumstances identical to the present case has also held as under:- "Resultantly in the circumstances of the case, the High Court had rightly refused to interfere in its constitutional jurisdiction when an appropriate, efficacious and adequate alternate remedy available to petitioner has not been availed by him without any justification. The High Court in such like cases is not bound to issue the writ, especially when there was no material on record to eminently and conclusively establish the inherent lack of respondent's qualification so that he could be hit by Article 62 (f) of the Constitution. It may be pertinent to mention here that to hold a person lacking honesty, being not, Sagacious, righteous, Ameen and non-profligate, in other words is to declare him a fraud, cheat and dishonest, etc. Which shall be a stigma on his face entailing great immense, and innumerable legal and social consequences and repercussions; this to our mind shall not be justified without there being an adjudication made by the Court of competent jurisdiction to hold him carrying such a "vice".
16. The Hon'ble Supreme Court of Pakistan while holding the above dictum has relied on Dr. Mobashir Hassan and others v.
Federation of Pakistan and others (PLD 2010 SC. 265). In the said case, the Hon'ble Supreme Court of Pakistan has held as under:-- "if a person involved in corruption and corrupt practices has been finally adjudged to be so, then on the basis of such final judgment his candidature on the touchstone of Article 62(f) of the Constitution could be adjudged to the effect whether he was sagacious, righteous, non-profligate, honest or Ameen".
17. In the present case, the petitioner's case is on a weak footing as the respondents have placed on record his degree of B.Cs.
Along with secondary school certificate, intermediate certificate as R/1, R/2 and R/3. R/3 is a degree of B.Cs. No doubt issued by Al-Khair University is duly verified by the Higher Education Commission of Pakistan as is available on the back of this document. The degree is verified on. 10th of October, 2010. The respondents have also shown in Court the original degree which was compared with R/3 and returned.
18. This is not the case of petitioner that he casted his vote in favour of respondent and due to his misrepresentation and fraud that he is graduate and fulfilled the condition of law, the petitioner has been cheated. The case of petitioner is that he is voter in the constituency from where the respondent was elected as Member of Provincial Assembly and as such he is not directly an aggrieved person.
19. Learned counsel for respondent No.2 has placed on record an extract of press release of Higher Education Commission which is also available on website of Al-Khair University which read as under:-- "A press release said to safeguard interests of students and ensure provision of quality education in Pakistan, the HEC had directed that Al-Khair University must stop all new admissions and that the commission would not recognize any degree issued to students by the university after April 30, 2009."
20. Admittedly, the respondent No.2s degree was issued in pursuance of examination held in March/April, 2000 for a Session 1998-2000 and as such prima facie the respondent No.2s degree has a status of genuine degree in terms of press not of HEC.
21. As the respondent No.2, prima facie, has succeeded to establish on record that he is holding a genuine degree of graduation (B.Cs) and, as such, this Court in its constitutional jurisdiction could not enter into factual controversy for recording evidence for ascertaining the real facts or to look into the allegation of petitioner.
22. In my humble opinion as stated above, the writ petition is not maintainable. The petitioner has failed to raise any objection before Returning Officer at the time of acceptance of nomination paper of respondent No.2, further on merits, the respondent has succeeded, prima facie, establish on record that he is holding a verified genuine degree of graduation by the HEC and, as such, the petitions fail and are dismissed..