' GHULAM RABBANI, J.---Appellant has assailed the common judgment dated 8-5-2009 whereby Election Petition No,3 filed by the appellant with several other Election Petition were dismissed by the Election Tribunal, Baluchistan.
2. The above appeal was heard by us and vide our short order it was disposed of in the following terms:--
(a) The notification declaring respondent No,1 (Moulvi M. Sarwar) as a successful/returned candidate from the Constituency PB-15 (Baluchistan) is set aside for the reason that as per opinion of the Higher Education Commission Sanad possessed by him is not equivalent to Graduation/Bachelor degree;
(b) The Election Commission of Pakistan is directed to issue election schedule for bye-election in PB-15, according to law;
(c) Parties are left to bear their own costs."
3. Precisely, the facts of the case are that the Appellant along with respondent No,1 (hereinafter to be called respondent) and other candidates contested general elections of 2008 for Provincial Assembly seat for PB-15, Musa Khail, Baluchistan in which the respondent came out to be successful and was declared as the returned candidate. The appellant challenged that election by way of filing Election Petition No,03 of 2008, wherein, he inter alia, prayed "to declare the respondent No,1, as disqualified from contesting the elections from the said constituency for the reason of not having the requisite educational qualification". His petition was however dismissed for non- compliance of provisions of section 55(3) of the Representation of the People Act, 1976 (hereinafter referred to as the said Act). Feeling aggrieved, he filed the above appeal.
4. We have heard learned counsel for the parties and have gone through the material available on record. Perusal of the impugned judgment reflects that while dismissing the Election Petition No,3 of 2006 filed by the appellant, the Presiding Officer of the Election Tribunal observed as follows:-- "(ii) Election Petition No, 03 of 2008 was not verified on oath; even it was not signed by the petitioner. Similarly; the schedule of document was also not verified on oath or signed by the petitioner. Though an application for amendment was filed stating therein that the amended petition is also being filed along with the application, but the said application is not accompanied by any such amended petition, as such; on account of non-signing of the petition by petitioner, as well as non-verification of contents of petition and schedule of documents on oath by the petitioner, petition is liable to be dismissed."
' When this appeal was taken up on 21-6-2010, learned counsel for appellant contended that the Election Petition was filed by appellant before the Election Commission and when it reached the Election Tribunal, its last page on which he had signed and verified the contents thereof, was not available. In the circumstances, notice was issued to Election Commission of Pakistan to depute a person to appear and explain the procedure of transmitting the election petition to the Tribunal.
Also, to state whether on transmitting it, a photocopy or duplicate whereof was retained and if so, ,a copy of the election petition filed by the appellant be produced. On the next date of hearing viz. 28-6-2010 the record of Election Commission was produced. Mr. Muhammad Nawaz, Section Officer, produced one of the triplicate copies of Election Petition, perusal whereof indicated that it was duly signed by the appellant and his counsel and that it was also attested by Syed Shoukat Hussain Notary Public/Advocate High Court of Balochistan date of petition, as marked thereon, was 4th March, 2008. It was, therefore, observed that it seemed that the record of election petition was tampered with.
5. It may be noted that on 21-6-2010 it was also brought to the notice of the Court that the respondent possessed Sanad of "Shahadatul Almiya Fil Uloomal Arabia", to say, issued by Ittehad- ul Madaris, Mardan which was not recognized by Higher Education Commission. When, learned counsel appearing for respondent was confronted with this statement he expressed that he had no knowledge about that. He was, therefore, directed to place on record the original Sanads with equivalence certificate and any other material particularly the Higher Education Commission's letter dated 1-12-2007 in pursuance whereof, it was brought in the notice of the District Officer (P & F) that the Sanad (possessed by respondent) awarded by Ittehad-ulMadaris, Mardan was not recognized by Higher Education Commission, Islamabad. On the coming date of hearing viz: 28-6- 2010 learned counsel for respondent, however, failed to produce the requisite documents as per directions on the previous date. He requested sometime for doing the needful.
6. Here, before we proceed to dilate on the questions materially involved in controversy, we deem it pertinent to observe that the appeal is the continuity of original proceedings before the Election Tribunal while the Apex Court being Appellate Court is the final Court of facts. Case of Abdul Rehman v. Haji Ghazan Khan (2007 SCMR 1491) is referred in support. Evidently, we have proceeded with the matter in the light of this settled principle of law with universal recognition. Be that as it may, in the given circumstances, on the said date of hearing viz: 28-62010 we had directed the Election Commission that the nomination papers filed by the respondent for election along with documents relating to his educational qualification be sent to Higher Education Commission of Pakistan for expressing its expert opinion as to whether the same is genuine and equivalent to a degree of graduation.
7. This matter was then taken up on 30-7-2010, learned counsel for appellant took a fresh plea contending that respondent had filed Sanad issued by a Madrassa situated in Khanewal, on which he was directed to place copy of the same on record. On the other hand the report received from H.E.C. Indicated that the respondent had relied upon the Sanad issued by Wafaqul Madaris, Multan which was sent for verification to the said Madrassa. Accordingly, in such situation of the matter where conflicting statements were taken as to Sanad issued in favour of respondent were made, following order was passed:-- "2. In view of the above three controversies, it has become necessary to direct the respondent No,1 to place on record copy of the Sanad being relied upon by him as well as the Election Commission of Pakistan shall also file a copy of the nomination paper along with the Sanad containing the name of the father of the respondent and the Sanad which learned counsel for the appellant is relying shall also be placed as has been directed above within a period of three days. All these documents shall be sent to the Commission with reference to the policy letter dated December 1, 2007 to verify and furnish report as to whether the Sanad which the respondent No,1 relied upon at the time of filing of nomination paper containing the name of his father etc. Is duly recognized by it and what is the explanation in respect of earlier order shown by the Commission, noted-above, mentioning the name of the Madrassa situated in Mardan."
8. Pursuant to the above order the Director-General (Accreditation and Attestation), HEC submitted his report bearing No,16/HEC/A&A/2010/4990 dated 30-7-2010, informing that, "final Sanad "Shahadatul Almiya Fil Uloomal Arabia Wal Islamia" held by Moulvi M. Sarwar along with Supplement Information Form was sent to Wafaq-ul-Madaris Al-Arabia, Multan for verification. The Wafaq-ulMadaris Al-Arabia, Multan has verified/confirmed the final Sanad held by Moulvi M.
Sarwar and filled in the Sanad Supplement Information Form vide letters Nos. H.M.T.209. 1431 and AM-2032-1431 dated 4th July, 2010 and 10th July, 2010 respectively to the satisfaction of Higher Education Commission." On this, Higher Education Commission was further required on 24-8-2010 to make an enquiry in order to determine the core issue, whether the Sanads examined were equal to graduation for the purpose of fulfilling qualification to contest election.
9. In the meantime, the respondent in response to order dated 30-7-2010 also submitted along with nomination papers the original Sanad "Shahadatul Almiya Fil Uloom Al-Arabia Wal Islamia" issued on 8-5-2005 in his name by Wafaq-ul-Madaris Al-Arabia, Multan. Copy of this Sanad in the name of respondent was also produced by the Deputy Secretary (Elec:), Election Commission of Pakistan vide report bearing No,F.11(2)/2008-Law dated 5-8-2010. According to this letter, the above- mentioned document was a copy submitted by respondent before Returning Officer while contesting the election held on 18-2-2008. The Assistant Director (A&A) Higher Education Commission, Islamabad also submitted in an envelope, another report bearing No,8-16/HEC/A&A/ 2010/701, dated 8-9-2010. It may be stated that the envelope containing this report was opened in Court. It read as follows:-- "Reference Supreme Court of Pakistan letter C.A.-78-Q/ 2009-SCJ dated September 4, 2010 on the subject cited above, it is informed that as per decision of the Equivalence Committee of erstwhile UGC, the Higher Education Commission considers the Sanad "Shahadatul Almiya Fil Uloomal Arabia Wal Islamia" awarded by Wafaq ul Madaris Faisalabad, Pakistan as equivalent to M.A Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in Colleges and Universities and for pursuing higher studies.
' For employment in fields other than teaching, however, such Sanad holders would be required to qualify in two additional elective subjects other than Arabic and Islamic Studies at the B.A. Level from a University. Further, they would also have to qualify in the compulsory subjects of Pakistan Studies and Islamic Studies at the B.A level.
It is further added here that Deeni Asnad held by Moulvi Muhammad Sarwar son of Shadnam are not considered as equivalent to Graduation/Bachelor's degree by the Higher Education Commission. However, as already informed that the election Commission of Pakistan in its notification dated July 25, 2002 published in the Gazzette of Pakistan had declared the final sanad (Shahadatul Aliniya Fil Uloom Al-Arabia Wal Islamia) of ten approved Deeni Institutions equivalent to Bachelor's degree for general Information. (Copy again attached). (Emphasis supplied)
10. From above report of Higher Education Commission, reproduced, it is evident that as per the Sanad "Shahadatul Almiya Fil Uloom Al-Arabia Wal Islamia" is recognized as equivalent to M.A.
Arabic/Islamic Studies for the purpose of teaching Arabic and Islamic Studies in Colleges and Universities and for pursuing higher studies. However, while confirming as above, it is made clear in an unequivocal terms that "Deeni Asnad held by Moulvi Muhammad Sarwar son of Shadnam are not considered as equivalent to Graduation/Bachelor's Degree by the Higher Education Commission". It has further been stated that "as already informed that the Election Commission of Pakistan in its notification dated July 25, 2002 published in the Gazzette of Pakistan had declared the final sanad (Shahadatul Almiya Fil Aloom Al-Arabia Wal Islamia) of ten approved Deeni Institutions equivalent to Bachelor's Degree for general Information. (Copy again attached)". The said copy of notification dated 25-7-2002 of Election Commission of Pakistan as published in the Gazette of Pakistan (Extraordinary) reads as follows:- "No,F.2(11)/2002.Cord., WHEREAS Article 8A of the Conduct of General Elections Order, 2002 (Chief Executive's Order No,17 of 2002) provides that notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1972, the Senate (Election) Act 1975 (LI of 1975) the Representation of People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIII of 1974).
' AND WHEREAS a reference was made by the Election Commission to the University Grants Commission vide letter No,F.2(11)/2002-Cord. Dated 18th July, 2002 (copy whereof is at Annexure-I) requesting therein that the list containing the names of degrees recognized as equivalent to a Bachelor Degree under the University Grants Commission Act, 1974 (XXIII of 1974) may be communicated to Election Commission; ' AND WHEREAS the University Grants Commission has sent a reply to the aforesaid reference of Election Commission vide their Letter No,8-63/UGC/A&C/2002/1142, dated the 22nd July, 2002 (copy whereof is at Annexure-II) in which it has been stated that final Sanad of "Shahadat ul Almiya Fil Uloomal ul Arabia wal Islamia" awarded by the following Wafaq/Tanzeem ul Madaris and individual institutions has been recognized by the University Grants Commission as equivalent to M.A. Arabic/ Islamic Studies: Name of Wafaq/Tanzeem/Institution
(1) Wafaq-ul-Madaris Al-Arabia, Markazi Office Gordon Town Sher Shah Road, Multan
(2) Tanzeem-ul-Madaris Alhe Sunnat, Jamia Nazamia Razvia, indrrons Luhari Gate, Lahore.
(3) Wafaq-ul-Madaris, AJ-Salfia, Hajiabad Post Code 38600 Faisalabad.
(4) Wafaq-ul-Madaris Shia, Jamia-al-Muntazar, H. Block Model Town, Lahore.
(5) Rabita-ul-Maddaris-Al-Islamia, Mansoora Road, Lahore.
(6) Jamia Islamia Minhaj-ul-Quran, 366 Model Town, Lahore.
(7) Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad.
(8) Jamia Ashrafia, Feroz Pur Road, Lahore.
(9) Darul Uloom Muhammadia Ghousia Bhera, District Sargodha.
(10) Darul Uloom, Korangi Creek, Karachi.
' AND WHEREAS in the aforesaid letter the University Grants Commission, inter alia, stated:-- "It may further be noted that the Sanad Shahadatul Almiya Fil Uloom ul Arabia Wal Islamia granted by Wafaq/Tanzeemul Madaris and approval individual Deeni Madaris is recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purpose only. However, for purpose of employment other than teaching the holders would be required to qualify in additional two subjects other than Arabic and Islamic Studies at the B.A. Level: ' AND WHEREAS it is expedient and in the public interest to publish the above information received from University Grants Commission.
' NOW, THEREFORE, in exercise of the powers conferred upon it under Article 4 of the Conduct of General Elections Order, 2002 read with Article 9B of the Election Commission Order, 2002 and all other powers enabling it in that behalf the Election Commission is pleased to publish for general information the pre-mentioned letter dated 22nd July, 2002 received from the University Grants Commission regarding degrees recognized as equivalent to the Bachelor's degree pursuant to Election Commission's letter F.2(11)2002-Cord dated 18th July, 2002.
' By Order of the Chief Election Commissioner.
Sd/- (Muhammad Saleem Akhtar) J oint Secretary (Elections)"
(Emphasis supplied)
' A careful reading of the above notification reflects that the University Grants Commission (now Higher Education Commission) held: "that the Sanad. Shahadatul Almiya Fil Uloom ul Arabia Wal Islamia granted by Wafaq/Tanzeemul Madaris and approval individual Deepi Madaris is recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purpose only. However, for purpose of employment other than teaching the holders would be required to qualify in additional two subjects other than Arabic and Islamic Studies at the B.A. Level:"
11. Here, it will be pertinently useful to note that above referred notification dated 25-7-2002 came under .Consideration in case of Moulana Abdullah v. Returning Officer and others (2003 SCMR 195) and was considered again in case of Sanaullah Khan and others v. District Returning Officer, Mianwali and others (PLD 2005 SC 858), when it was observed that:-- "....Identical question came up for consideration before this Court in the case of Moulana Abdullah (ibid), wherein latest notification issued by the UGC dated. 25th July, 2002 was reproduced. It is significant to note that in this notification the UGC had made it clear that the "Sanad" Shahadat-ul- AlmiyyaFil-Uloomil-Arabia-Wal-Islamia (Master Degree) granted by approved Wafaq/Tanzeem- ul-Madaris and individual institutions is recognized as M.A. Arabic/Islamic Studies for teaching purpose only. The word 'only' means "for no other purpose" (Black's Law Dictionary 5th Edition) and in Government of Punjab v. Naila Begum (PLD 1987 Lahore 336) it was held that "the word 'only' found in this article cannot be ignored and plays a significant role in the interpretation of the article. According to Oxford Dictionary, word 'only' means, solely, merely, exclusively, or by itself alone without anything else."
14. The Act of 1974 now has been repealed by the Higher Education Commission Ordinance, 2002 (herein after referred to as "the Ordinance, 2002"). Its section 22 subsection (2) has provided safeguards to everything done or action taken under the repealed Act of 1974. As a result thereof all the notifications referred to hereinbefore have been saved. Besides, section 10(0) of the Ordinance 2002 confers functions upon' the Commission to determine the equivalence and recognition of the degrees, diplomas and certificates, awarded by Institutions within the country and abroad.
' Thus, it is manifest that subject to passing examination of two additional subjects and newly- introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. Level, "Sanad" of Shahadat-ul-Alamia obtained by the students from Wafaq/Tanzeem-ul-Madaris and individual institutions, duly recognized by the UGC, could be used for employment purpose other than teaching and without passing examination at B.A. Level from a university in four subjects noted above, these "Sanads" if issued by recognized institution by UGC/HEC, could be used for teaching purposes and for Higher Education only."
12. It may be stated that during course of his arguments learned counsel for respondent submitted that the respondent had subsequently passed the two additional subjects, but, neither he produced any copy of certificate to that effect nor could he refer to any year or name of Institute of passing these subjects. Also before Higher Education Commission, no such document seems to have been placed for Expert opinion. Be that as it may, the Assistant Director, A&A of Higher Education, Islamabad vide his report dated 8-9-2010, reproduced above, has stated in clear terms that the Deeni Asnads held by respondent No,1 Moulvi M. Sarwar son of Shadnam are not considered as equivalent to Graduation/Bachelor's degree by the Higher Education Commission meaning thereby that the respondent was not holding a Deeni Sanad equivalent to Graduation/Bachelor degree, therefore, he was not qualified to contest the general elections of 2008 for the Provincial Assembly Seat No, PB-15. Therefore, in other words the respondent No,1 though a returned candidate was not, on the nomination day, qualified for, or was disqualified from being elected as a member and his election as a returned candidate is, therefore, void.
13. Having considered what has been discussed above, we had passed our short order dated 14-9- 2010 disposing of this appeal in terms reproduced above and these are the reasons for the same.