' AMIR HANI MUSLIM, J.---This appeal, by leave of the Court, has been preferred by the appellant, challenging the judgment of the learned Lahore High Court, Multan Bench, by which the writ petition filed by the appellant against the respondent No, 1 calling in question his holding of office as a member of the National Assembly, was dismissed.
2. The facts of the case as they appear from the record are that the appellant has challenged the office of the respondent No,1, who was elected as MNA from the Constituency NA 153, Multan-V, in the general elections held on 18-2-2008, inter alia, on the ground that the respondent No,1 was not qualified to contest the election for the office of MNA as he was holding a fake and invalid degree of B.A.
3. It appears from the record that the election of the respondent No,1 was initially challenged through an Election Petition by his opponent Rana Qasim Noon, one of the contesting candidate, which was dismissed and the order of dismissal of the Election Tribunal was assailed in Writ Petition No,15629 of 2009, which too was dismissed on 9-9-2009, by a learned Division Bench of the Lahore High Court. One of the grounds for challenging the election of the respondent No,1 in the Election Petition was that the degree of B.A of respondent No,1 was fake, therefore, he was not qualified to hold the office of MNA under the provisions of section 99(1)(cc, d, e) of the Representation of People Act, 1976 (hereinafter referred to as the Act of 1976). After the dismissal of the writ petition filed by the contesting candidate Rana Qasim Noon on 9-9-2009, the appellant, on 23-4-2010, filed Writ Petition No,11538 of 2010 after a lapse of about 8 months of the dismissal of the earlier writ petition referred to hereinabove, agitating the same ground that B.A. (Pass) degree of the respondent No,1 was fake. The learned High Court had issued notices and after hearing the parties has passed the impugned judgment dismissing the writ petition of the appellant holding that the writ petition of the appellant in the nature of quo warranto could not be issued as it was tainted with malice.
4. Leave was granted by this Court, inter alia, on the ground as to whether the High Court has not taken note of the certificate issued by the Higher Education Commission declaring the degree of the respondent No,1 as invalid. According to the learned counsel, declaring a document invalid tan amounts to non-existent of such document.
5. It has been contended by the learned counsel for the appellant that the learned High Court had erred in law in dismissing the writ petition of the appellant in the face of the certificate issued by the Higher Education Commission, which declared the degree of the respondent No,1 as invalid. He next contended that the issue of bona fide of the respondent No,1 could not be allowed to be agitated in a writ of quo warrant.
6. He further contented that the appellant was not a stranger but is a voter of the constituency from which the respondent No,1 was elected and he was competent to challenge the office of the respondent No,1 as MNA, who was declared as returned candidate of the Constituency.
7. As against this the learned counsel for the respondents has supported the impugned judgment.
8. We have heard the learned counsel for the parties and have perused the record. It is not in dispute that the contesting candidate namely Rana Qasim Noon, had filed an Election Petition under section 52 of the Act of 1976 challenging the election of the respondent No,1, who was notified as a returned candidate by the Election Commission of Pakistan, inter alia, on the ground that the B.A. (Pass) degree of the respondent No,1 was forged and fake. This Election Petition was numbered as 234 of 2008. The Election Tribunal issued notices to the respondents. The respondent No,1 filed written reply and also raised the objection in regard to the maintainability of the petition in terms of section 55(3) of the Act of 1976. The learned Election Tribunal, after hearing the parties on the preliminary issue, dismissed the election petition against which the writ petition was filed by Rana Qasim Noon, which too was dismissed on 9-9-2009, which order attained finality.
9. The present appellant filed the writ petition, which is subject- matter of present proceedings, after a lapse of almost 8 to 9 months on the identical ground on which the earlier petition filed by Rana Qasim Noon was dismissed, inter alia, pleading that he is one of the voters of the constituency and was competent to challenge the office of the respondent No,1 as MNA by instituting a writ in the nature of quo warranto. After notice to the parties, the learned High Court heard the matter and by the impugned judgment has dismissed the petition of the appellant.
10. We have perused the reasoning of the learned Judges of the Lahore High Court. The record shows that the issue of degree of the respondent No,1 was examined in depth by the learned High Court and it was held that the degree of the respondent No,1 was invalid and not a forged one. After recording such a finding, it travelled further and has held that the penalty in teams of section 99(cc) of the Act of 1976, would not be attracted to disqualify the respondent No,1 on such a ground as the degree secured by him was not forged one. The findings recorded by the learned High Court in regard to validity of the degree of the respondent No,1, were based on the report dated 29-4- 2008 of the Assistant Controller of the Examination in which he has stated that the respondent No,1 in violation of the rules had appeared in Parts I and II of the B.A. Examination in the same year i,e, 2003 as a fresh candidate, whereas no external or regular candidate is permitted to appear in both the (Parts I and II) in B.A. (Pass) in the same year, as per section 2 of the University External Candidates Examination Regulations, 1987. The report further states that "hence it is proved that B.A.
(Pass) degree sheet No,42135 Annual Examination 2003, issued to Mr. Ashique Hussain son of Dewan Syed Ghulam Abbass Bukhari from Shah Abdul Latif University, Khairpur is held to be invalid on the grounds as stated' above. "
11. As far as the verification of the degree B.A. (Pass) of the respondent No,1 is concerned, it was observed by the university authorities that the degree issued to the respondent No,1 was correct and was as per their record.
12. The Assistant Controller of the examination, in law, does not have the authority to invalidate a degree secured by a candidate from the university after he is declared to have been passed his B.A. (Pass) examination. In the case in hand, the Assistant Controller has exceeded his authority by invalidating the degree issued to the respondent No,1 by the Shah Abdul Latif University of Khairpur Sindh, inter alia, on the ground that B.A. (Pass) Part-II examination passed by the respondent No,1, by appearing in both parts of B.A. (Pass) examination in the same year was violated of section 2 of the University External Candidates Examination Regulations, 1987.
13. The counsel for the appellant has not placed before us any material to substantiate that such violation of the rules of a university entails penalty of invalidation of the degree. Moreover, the university authorities have confirmed that the B.A. (Pass) degree secured by the respondent No,1 was neither forged nor invalid and the respondent No,1 on the strength of this degree of B.A. (Pass Part-II) has passed his M.A. Examination.
14. The disqualification clause under section 99(cc) of the Act of 1976 entails penalty which is attracted only when it is established that the degree secured by a returned candidate was forged one. It does not extend to attract the degrees which have been secured validly after passing the examination. The passing of the examination in deviation of some rules of the university like the one by appearing in both parts of the examination in the same year, in no way, invalidate a degree.
What is most significant in the present proceedings is that the Assistant Controller has to confine his authority for conducting the examination and or monitor the issues attached to the examination and it does not give him the authority to declare a degree invalid issued by the university to which he himself is subordinate.
15. We do not concur with the finding of the learned High Court, in regard to the invalidity of the degree on the basis of report of the Assistant Controller. However, the other observations that the degree was not forged, was itself sufficient ground to dismiss the petition of the appellant. The next contention of, the appellant that bona fides in a writ of quo warranto cannot be allowed to be gone into, was also without force. Once the learned High Court has already recorded the finding on the issue of degree raised in the present proceedings by the appellant in an earlier writ petition which findings have not been upset in appeal by this Court, the present petition on such issue would be bar on the principle of 'constructive res judicata' besides the fact that the appellant, otherwise, had political connections with the very group which has previously filed the Election Petition. In such like circumstances, bona fides of a petitioner in a writ of quo warranto can be examined to save a party from vexing twice.
16. The above are the reasons for our short order of the even date, which reads as under:-- "For the reasons to be recorded later, instant appeal is dismissed leaving the parties to bear their own costs."