' SH. AZMAT SAEED, J.---This Civil Petition for Leave to Appeal is directed against the judgment of the learned Islamabad High Court, dated 26-6-2013, whereby Constitutional Petition bearing Writ Petition No,2708 of 2013, filed by the present petitioner was dismissed.
2. The brief facts necessary for adjudication of the lis at hand are that the petitioner and respondents Nos,5 to 15, participated in the General Elections held on 11-5-2013, for a seat in the Provincial Assembly of the Province of Sindh (PS-12). After the General Elections, respondent No,5 on 12-5-2013 and 13-5-2013 filed complaints before the Election Commission of Pakistan (ECP) regarding the conduct of the said elections. Subsequently, after obtaining permission, an amended complaint was also filed by respondent No,5. Before the ECP by taking up an additional plea that the present petitioner was not qualified to contest the General Elections in view of Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, primarily in view of the Order dated 3-12- 2007, rejecting the Nomination Papers of the petitioner, in the previous General Elections. In the meanwhile, the ECP notified the petitioner as a returned candidate on 22-5-2013. The complaint filed by respondent No, 5 was heard whereafter the ECP vice Order dated 14-6-2013, declared that the petitioner was not qualified to be an Elected Member of the Provincial Assembly in view of Article 62(1)(d) and (f) of the Constitution of the Islamic Republic of Pakistan, 1973. By virtue of the said Order, the election was declared null and void and fresh election was ordered for the said Constituency.
3. Aggrieved, the petitioner challenged the aforesaid Order of the ECP before the learned Islamabad High Court vide Writ Petition No,2708 of 2013, which was dismissed vide judgment impugned dated 26-6-2013.
4. It is contended by the learned counsel for the petitioner that by way of the impugned judgment, the learned High Court has erred by relying upon the Order of the Returning Officer dated 3-12- 2007, rejecting the Nomination Papers of the petitioner, as the said Returning Officer is not a Court and a declaration by the Court of law is a condition precedent for invoking Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973. It is further contended that the Order by the Returning Officer does not operate as res judicata especially when such an Order is the outcome of a summary procedure at the stage of scrutiny of Nomination PapeRs, Reliance upon such decisions, would also offend against Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973.. The learned counsel further added that even otherwise the allegation against the petitioner would entail at best proceedings under section 78 of the Representation of the Peoples Act, 1976, and even if found guilty at worse it would result in a conviction with a sentence of a maximum period of three (3) years thereby resulting in his disqualification for five (5) years only and not a disqualification in perpetuity. In support of his contentions, the learned counsel relied upon the judgments, reported as Virindar Kumar Satyawadi v. The State of Punjab (AIR 1956 SC 153), Ch. Altaf Hussain v. Raja Muhammad Afzal (PLD 1986 Journal 93), Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644) and Rana Aftab Ahmad Khan v.
Muhammad Ajmal and another (PLD 2010 SC 1066).
5. The learned counsel for the petitioner has been heard and the available record perused. It is a matter of record that the petitioner filed his Nomination Papers for the same seat i,e, PS-12 of the Provincial Assembly of the Province of Sindh to contest the General Elections held in the year 2008.
The said Nomination Papers were subjected to scrutiny and eventually rejected by the Returning Officer vide Order dated 30-12-2007. The relevant portion whereof is reproduced hereunder:-- "The Candidate has submitted the Sanad of religious institution namely Al-Jamiyah Al Diniyat Daral Huda Hibibabad (Thairi) to which was referred to said Maddarrasa so also Wafaq-ulMaddarrasa at Multan and Shah Abdul Latif University for verification purpose said Maddarrasa has confirmed the Sanad vide his letter No,43300 dated NIL whereas WafaqulMaddarrasa Multan has reported that the said Sanad has not been issued by the Wafaq-ul-Maddarrasa but it has been issued by the AL-JAMIYAH AL DINIYAT DARAHUDA HABIBABAD (THAIRI). The candidate had also been instructed to produce the equivalence Certificate as issued by the UGC/HECC or University to whom the Maddarrasa is affiliated when the nomination paper was taken up for scrutiny purpose on 2-12- 2007 and the candidate had submitted the request to extend the time to produce the same. The time was allowed.
' During the course of scrutiny purpose today i,e, 3-12-2007, the candidate has submitted the equivalence certificate, issued by Shah Abdul Latif University Khairpur, The said certificate has been sent through fax to Shah Abdul Latif University Khairpur for verification purpose wherefrom it has been reported by Assistant Registrar (GEN) that the said certificate is not genuine one and the same is fake and fabricated and it has not been issued by the University. The confirmation was made on telephone also to that effect".
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6. The petitioner never challenged the said Order by way of an appeal nor the constitutional jurisdiction of the learned High Court invoked by him. The petitioner also did not approach this Court. Hence, the said Order dated 3-12-2007 not only attained finality but remains in the field. It has already been held by this Court in the case titled as Muddasar Qayyum Nahra v. Ch. Bilal Ijaz and others (2011 SCM R 80) that a person who uses unfair Means in attempting to establish his educational qualification to contest the election or makes a wrong declaration cannot be considered to be an honest, righteous or Ameen, hence, does not possess the qualifications prescribed under Article 62(1)(f) of the Constitution of the Islamic Republic of Pakistan, 1973, to become a Member of the Parliament or the Provincial Assembly.
7. The petitioner contested the General Elections held on 11th May, 2013. It is the effect of the Order dated 3-12-2007 of the Returning Officer, the relevant portion whereof has been reproduced herein above, on the qualifications or lack whereof of the petitioner to contest the elections of 2013 which requires examination.
8. A similar matter came up before this Court in the judgment reported as. Malik Iqbal Ahmad Langrial v. Jamshed Alam and others (PLD 2013 SC 179), wherein it was held as follows:- "(10) Learned counsel for is appellant has vehemently argued that prior to 18th Constitutional Amendment, in terms of Article 62(1)(f) of the Constitution, the Court was not empowered to declare any person to be non-sagacious, not righteous or honest or an amen, as such the observations of the Election Tribunal that the appellant was not only to contest the election in the year 2008, but was also not righteous or honest or an amen person, was sustainable. In this regard it is to be noted that at the time of filing of nomination papers to contest the election in the year 2002, the .Appellant produced fake and forged education certificates and the Election Tribunal had declared him to be an imposter vide judgment dated 26-12-2002. It is to be noted that Article 62(1)
(f), as it stood prior to 18th Constitutional Amendment, provides that a person shall not be qualified to be elected or chosen as a Member of Majlis-eShoora (Parliament) unless he is sagacious, righteous, non-profligate, honest and ameen It is clear from the plain reading of the said Article that there is no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in the year 2002 but also in the year 2008 and also made false declaration making him liable to criminal action under certain provisions of P.P.C. In the case of Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCM R 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educational qualifications 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 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 the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respondent (therein) 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 Exchequer or be eligible to represent the people of Pakistan.
(11) Learned counsel stated that his main grievance is to the extent of the declaration given by the learned Election Tribunal that the appellant was also not righteous, honest or ameen person and prayed that the said remarks may be expunged from the impugned judgment. In this regard, it is to be noted that the Election Tribunal vide its judgment dated 26-12-2002 declared the appellant to be an imposter and the appellant neither rebutted the same nor challenged the said judgment before any forum, therefore, on the 'basis of said judgment as well as the fact that the appellant produced fake, fabricated Sanads in the year 2008 as such the findings of the Election Tribunal to dat extent cannot be expunged. Learned counsel argued that the learned Election Tribunal in the impugned judgment while declaring the appellant to be not righteous or honest or an ameen person has used of word 'was', as such it does not affect his qualification to contest the election in future. At this stage we cannot decide such question; However, at the relevant time, if any question arises, that shall be dealt in accordance with law.
(12) In a recent case titled as Syed Mehmood Akhtar Naqvi v. Federation of Pakistan (Constitution Petition No,5 of 2012) 2012 SCM R 1101 this Court has held that whoever makes false declaration at the time of filing of nomination papers, makes himself liable to be disqualified from being elected or chosen as Member of the Majlis-e-Shoora (Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 198 and 199, P.P.C."
9. This Court vide judgment dated 24-5-2013, passed in Civil Appeals Nos,411 to 414 of 2013, titled as Abdul Ghafoor Lehri v. The Returning Officer, PB-29, Naseerabad-II and others 2013 SCM R 1271, inter alia, held as follows:- "(12) Since the Sanad produced by the appellant while contesting election, 2002 has been declared not equivalent to B.A. Degree for the reasons mentioned in the preceding paragraphs, therefore, appellant was not at all qualified to contest election. Now the question arises as to whether the appellant is disqualified to contest election, 2013 or not. In this regard it is noticed that while producing aforesaid Sanad, the appellant sworn an affidavit to the effect that the Sanad produced by him was issued to him by a recognized institution and equivalent to a bachelor degree made false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not righteous , sagacious, non-profligate, honest and Ameen within the meaning of Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, as such, was not qualified to be elected or chosen as a member of Majlis-e-Shoora.
(13) ... This Court in the case of Malik lqbal Ahmad Langrial v. Jamshaid Alam and others (PLD 2013 SC 179) has held that a person who indulges into using unfair means in procuring his educational qualifications 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.
(14) For this reason alone, Article 62 does not provide any period after which a person, who was declared disqualified under the said Article, can be eligible to contest the elections of the Parliament, In such view of the matter we hold that a person who is not qualified under Article 62(1)
(f) cannot become qualified by efflux of time. Reference in this regard may also be made to the case of Imtiaz Ahmed Lali v. Ghulam Muhammad La (PLD 2007 SC 369) In such circumstances the appellant has rightly been disqualified to be elected as member of the Parliament by the learned Election Tribunal by allowing the election appeal filed against acceptance of his nomination papers by the Returning Officer which findings were upheld by the High Court of Balochistan. "
10. This Court in a case reported as Mian Najeeb-ud-Din Owasi and another v. Amir Yar Waran and others (PLD 2013 SC 482) held as follows.-- "(5) Notwithstanding whether the condition of being a graduate or having a degree equal to the requisite academic skill was not available subsequent to the General Election 2008, and the judgment in the case of Muhammad Nasir Mahmood and others v. Federation of Pakistan through Secretary M/o Law (PLD 2009 SC 107) yet if a candidate has made a declaration in the column meant for academic qualification and declared himself to be a graduate, but subsequently, it is found that he was not a graduate then he would equally be liable to face the consequences under Articles 62 and 63 of the Constitution or the other relevant provisions of the P.P.C. It is further to be observed that once there is a disqualification, it is always a disqualification; therefore, while making declaration in the nomination papers, a candidate must provide, a crystal clear statement about his credentials and antecedents. There is no scope of making or providing information, which is not correct, because he is one of the persons whom the electorate of a constituency, which may be having a strength of 50 thousand, are going to elect their representative. Therefore, whatever, he possesses in terms of academic qualification, bank credits and taxes etc. He shall have to declare each and every thing required for the qualification to contest the election.
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(9) ' We have no objection on the decision of ECP, falling under categories A and B, but as categories C to H are concerned, we may observe that for declaring a person to be disqualified, no period of limitation, as pointed out, would be relevant because such disqualification, was suffered at the time when he filed the nomination papers by making a declaration, while having a fake degree in his hand, therefore, in such cases, no time period can be prescribed. ...
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(13) ' Be that as it may, we are conscious that gentlemen whose names are mentioned were members of the Parliamentarians i,e, Members of the National Assembly, Provincial Assemblies and the Senate. Therefore, the HEC and the ECP shall provide them another opportunity to satisfy the requirements to verify their degrees as per the law, because if any decisive step is taken by this Court, there is every likelihood that they might loose their status retrospectively to be a Member of the National Assembly, Provincial Assembly or the Senate, notwithstanding the fact that the Assembly was dissolved after completion of 5 yeaRs, Such disqualification will commence from the date when the notification declaring them to be a successful candidate was issued by the ECP, if at that time they were not qualified as the declaration made have been found to be incorrect then they have no right to claim such status. Therefore, in the interest of justice, we allow to all of them i,e, 189 Parliamentarians, whose names have been mentioned in the list, furnished by the. HEC to the ECP, to get their degrees verified on or before 5-4-2013. Their names are available with the ECP and if they have already received notice they themselves shall approach the HEC. However, the HEC may also issue them notices, intimating them about the pendency of verification of their degrees. This exercise has to be completed upto the date noted hereinabove. The ECP, in the meanwhile, shall inform the respective Returning Officers, before whom they may have filed the nomination papers, if they are again contesting for the General Elections to give their decision in respect of their educational qualification after receipt of the decision by the HEC. Similarly, the same exercise shall be put into effect in respect of 27 Parliamentarians, whose cases were closed."
11. In order to contest the elections of the Parliament or to the Provincial Assembly or be a Member thereof a person must possess the qualification as enumerated in Article 62 of the Constitution and not suffer from the disqualification as mentioned in Article 63 . Of the Constitution. The provisions of the said Articles when examined in the light of the judgment of this Court referred to and reproduced herein above reveal that certain disqualifications are removed by the afflux of time e.g. Disqualification on account of conviction or removal from service. Similarly, the qualifications can be acquired by some future act of the candidate e.g. By acquiring exclusive citizenship so as to become qualified in terms of Article 62(1)(a) of the Constitution. However, with regards to a qualification in terms of Article 62(1)(f) of the Constitution, the framers of the Constitution have chosen not to prescribe any period of time through the flux whereof or any act or omission through which such qualification can be acquired if a candidate or a member has been held not to possess the same. Consequently, if a person, is held not to be qualified in terms of Article 62(1)(f) of the Constitution such absence of qualification in law will haunt him forever.
12. In the instant case, the matter of the petitioner being qualified in terms of Article 62 of the Constitution and not being disqualified in terms of Article 63 of the Constitution came up before the Returning Officer during the elections of 2008. In order to prove himself to be qualified, the petitioner deliberately produced an equivalence Certificate of Shah Abdul Latif University, Khairpur, which on query by the Returning Officer from the University concerned was found to be bogus. The petitioner had deliberately attempted to use a forged, fake and fabricated document by filing the same before the Returning Officer. His Nomination Papers, therefore were rejected vide Order dated 3-12-2007 being not qualified in terms of Article 62(1)(f) of the Constitution, as a person who uses unfair means or utilization a forged, fake and fabricated document to contest the elections, is not a righteous and Ameen as held by this Court in Nahra's case (supra). The Returning Officer was vested with the jurisdiction to determine the qualifications or absence thereof, of the petitioner. The said Order dated 3-12-2007 was accepted by the petitioner by not challenging the same by way of an appeal or otherwise which thereby attained finality and still holds the field, as a consequence whereof the absence of qualification continues. The matter was agitated before the ECP by respondent No,5. The ECP vide Order dated 14-6-2013 by relying, inter alia, upon the judgments of this Court referred to and quoted hereinabove correctly concluded that the petitioner did not possess the requisite qualification under E Article 62(1)(f) of the Constitution to be a Member of the Provincial Assembly of the Province of Sindh. The said Order has been maintained by the learned High Court by way of the impugned judgment, which too is in accordance with the law already laid down by this Court in the judgments reproduced herein above. No exception can be taken to the impugned Order of the ECP and of the impugned judgment of the learned High Court.
13. The judgments relied upon by the learned counsel for the petitioner are not attracted to the facts and circumstances of the instant case. AIR 1956 SC 153 incidently pertains to the interpretation of sections 195, 476 and 476B of Cr.P.C., and section 36 of the Indian Representation of the People Act, 1951. Similarly, the essential facts on the basis whereof the Order dated 3-12-2007 are not disputed, hence, the judgment reported as Federation of Pakistan and others v. Mian Muhammad Nawaz Sharif and others (PLD 2009 SC 644) is also not relevant. Similarly, in the case reported as Rana Aftab Ahmad Khan's case (supra) at a pre-poll stage, a candidate aggrieved of an Order of the Returning Officer accepting the Nomination Papers of the opposing candidate challenged the same through a Constitutional petition rather than through an appeal provided by law. The said Constitutional Petition was held not to be maintainable in view of the presence of an alternative remedy. Such Order was upheld by this Court. The question at hand was neither raised nor adjudicated upon in the judgments relied upon by the learned counsel at the bar.
14. In view of the aforesaid, it is clear and obvious that this petition is without merit, therefore, the same is dismissed and leave declined.