UMAR ATA BANDIAL, C.J.--- The dispute ' This election petition challenges the eligibility of respondent No,1, lftikhar Ahmad Khan, to contest the General Election 2008 from the constituency PP-81 Jhang-IX. According to the notified result of the said election, respondent No,1 is the returned candidate with 29615 votes whilst the runner-up Charag Akbar, respondent No,4, secured 28976 votes and Ghulam Ahmad Khan bagged the third highest score at 25264 votes, The petitioner who is mentioned as lqbal Buslana in the result of count of the said election obtained 668 votes. The election petition makes the following prayer: "In view of the above stated circumstances, it is most humbly and respectfully prayed that election of PP-81 Jhang-IX may very kindly be declared as void and respondent No,1 may very kindly be declared disqualified and re-election be ordered.
' Any other relief which this Honourable Court may deem fit and proper may also be granted to the petitioner."
2. The said relief is prayed on the basis that respondent No,1 is not a graduate (paragraph-5 of the petition); that roll number slip of Azac'. Jammu and Kashmir University (' AJ&KU") issued to the respondent No,1 bears the photograph as well as the National Identity Card ("NIC") number of some person other than the respondent No,1 (page 10 of the petition); That the NIC number on the said slip belongs to one Tayyab son of Murad as disclosed by letter dated 24-3-2008 written by the District Registrar, District Registration Office Jhang to the Principal, Government College Jhang (Annex-M of the petition). On the said averments, the petition alleges an impersonator sat in place of respondent No,1 in the B.A. First Annual Examination held in May 2004 by the AJ&KU.
3. The allegation made in the petition is denied by the respondent No, 1 . The pleadings of both the petitioner and respondent No,1 refer to an unsuccessful pre-election stage challenged by the petitioner to the graduate qualification of respondent No,
1. This was dismissed but with some favourable comment from the Bench. In the judgment dated 14-12-2007 given by the learned Election Appellate Tribunal comprising a learned Division Bench of the Lahore High Court, it is observed that the petitioner had managed to create doubt about the respondent No,1 having sat for his B.A. Examination. However, such controversy could be resolved by a competent forum after recording of evidence. This election petition was accordingly filed. When the matter was reserved for final judgment in the election petition, the respondent approached the Hon'ble High Court in W.P. No,10356/2012 titled Iftikhar Ahmad Khan v. Election Tribunal and others. By order dated 24-4- 2012 the learned Single Judge stayed the announcement of final judgment in this election petition.
Consequently, the matter went into rehearing after consent order dated 7-6-2012 passed by the Hon'ble High Court whereby the petitioner Iftikhar Ahmad Khan was allowed to place on record of this Tribunal "certified copy of order/finding of the AJ&KU whereby the said University accepted that the copy of the CNIC of the petitioner is available on their record." The matter is decided presently in the light of fresh material and submissions made by the learned counsel for the parties.
Issues and the petitioner's case:
4. In the foregoing background and on the controversy arising from the pleadings, this Tribunal framed seven issues for determination during trial of the election petition. These are reproduced below:--
(1) Whether the election petition merits dismissal as the election petitioner has failed to comply with the mandatory requirement of Section 54(b) of the Representation of Peoples Act, 1976? OPP
(2) Whether the election petition merits dismissal on account of being violative of the Section 55 of the Representation of Peoples Act, 1976? OPP
(3) Whether petition is proceedable in view of absence of any proper list of witnesses containing gist of their evidence? OPP
(4) Whether the election petition merits dismissal having not been duly verified on oath and attested by oath commission? OPP
(5) Whether respondent No,1, Iftikhar Ahmad is hot qualified to be elected as Member of Provincial Assembly being not graduate as required under section 99(1)(cc) of Representation of Peoples Act, 1976? OPP
(6) 'Whether the election of respondent No,1 is bad for illegalities committed by him and his accomplices? OPP 7) Relief.
5. The proceedings before the Tribunal have thereafter focused mainly on issue No,5 which has been accepted without objection as encompassing the petitioner's allegation of impersonation of respondent No,1 in his B.A. Examination. On the said issue No,5, the petitioner examined four witnesses, namely, Anwar Farooq, Secretary, Board of Intermediate and Secondary Education, Sargodha ("BISE") PW.1, Muhammad Tariq SA (Legal). NADRA/Field Officer PW.2, Dr. Muhammad Rustam Khan, Controller Examination, AJ&K University. PW.3, the petitioner himself, PW.4.
Respondent No,1 appeared as the sole witness in defence as RW.1.
6. From the documents exhibited on record, the case of the petitioner turns on three factual points that have been established on record. First, that the B.A. Admission form of the respondent No,1, Exh.PW.3/3, and his roll number slip, PW.3/1, both filled by the respondent No,1 and filed with the AJ&KU wrongly gave NIC No,260- 66-084291 as his own. According to the NADRA Field Officer, PW.2, the said NIC number does not belong to respondent No,1 and in fact does not exist in the record of NADRA. This fact shows that the petitioner filled in a wrong NIC number on his admission form and roll number slip at the time of their filing. The second fact that stands established on record is that the admission form Exh.PW.3/3 bears an attested photograph of respondent No,1 whereas his roll number slip Exh.PW.3/1 contains the attested Photograph of a different person whose identity could not be established during trial. The third fact that is established on record from the statement of PW.3, the Controller of Examination of AJ&KU, is that the man whose photograph appears on the examination hall for sitting the B.A. Examination. Resultantly, the petitioner alleges that by giving a wrong NIC number on his admission form and attached roll number slip, the respondent No,1 concealed his true identity before the AJ&KU for the B.A. First Annual Examination, 2004. It is further alleged that the said concealment was committed to facilitate a different person whose photograph appears on the roll number slip to impersonate the respondent No,1 in the said B.A.
Examination of AJ&KU. Accordingly, the respondent No,1 is alleged to have secured his B.A. Degree from AJ&KU by fraudulent means. Therefore, the respondent No,1 does not possess a graduate degree and he was disqualified to contest the General Election 2008 from PP-81, Jhang-IX.
7. Another document in, the records of AJ&KU which also bears the photograph of the alleged impersonator is Exh.PW.3/2, a NOC issued by the BISE Sargodha, allowing the petitioner to undertake B.A. Studies at AJ&KU. Although the said NOC is part of the record of AJ&KU, it is not relevant to the petitioner's allegation of impersonation because it does not figure in the scrutiny of a candidate who is sitting in the AJ&KU B.A. Examination. On the other hand, the said NOC by the BISE Sargodha is relevant for obtaining admission to AJ&KU. Oh that subject the said NOC may, however, have utility with respect to whether the photograph of the impersonator was affixed on it originally or later.
Respondent's version:
8. The respondent No,1 has denied the allegation made by the petitioner. He claims that the petitioner has backing of important political personalities who have connived to tamper the documents of AJ&KU and the BISE Sargodha for disqualifying the respondent No,1 from the electoral race. Respondent No,1 in his statement before the Tribunal as RW.1 has named two persons who allegedly instigated initial action taken by AJ&KU to quash the B.A. Result of the respondent No, 1.
These are Mr. Faisal Saleh Hayat, Ex-Minister of the Government of Pakistan and Sardar Attique Ahmad Khan, incumbent Prime Minister of Government of AJ&K. The respondent No,1 in his statement before the Tribunal stated that his degree from the AJ&KU is genuine and his photographs in the record of AJ&KU, namely, his roll number slip and BISE Sargodha NOC have been changed subsequently by the staff of the University who are custodians of the record. The learned counsel for respondent No,1 has argued that in fact the portion of the statement of respondent No,1 regarding replacement of his photograph has not been cross-examined on behalf of the petitioner.
9. The learned counsel for respondent No,1 referred to the judgment of the honourable Supreme Court of Azad Jammu and Kashmir dated 8-2-2011 given in Civil Appeal No,177/10 titled Munawar Hussain v. University of Azad Jammu and Kashmir and others wherein it is held that AJ&KU Syndicate had no authority to reopen, investigate and inquire into the validity of a degree awarded by the said University after the lapse of three years from the issuance of such degree.
Consequently, the decision of the Vice Chancellor of the University to cancel the B.A. Result of respondent No,1 subject to approval by the Syndicate was illegal. The learned counsel for respondent No,1- has then referred to order, passed by the learned Election Commission of Pakistan ("ECP") dated 6-3-2012 directing the Chairman Higher Education Commission of Pakistan ("HEC") to verify the B.A. Degree of, inter alia, respondent No,l. The Director General (A&A) of the HEC informed the ECP by letter dated 22-3-2012 that the graduate degree of respondent No,1 was declared genuine by the AJ&K University. Consequently, it is asserted that according to the record of HEC the genuine and not a fake one. Reference has been made to Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (2012 SCM R 366) to assert that the burden to prove that a degree is genuine and not forged lies upon beneficiary of the questioned degree. In the present case, the genuineness of the degree has been established before the AJ&K University as well as HEC and ECP, therefore, the petitioner is under a higher duty of bringing positive proof on record to establish the plea of impersonation.
10. Consequently, on behalf of respondent No,1 it is alleged on the factual plane that the petitioner has failed to bring solid material on record demonstrating the commission of alleged impersonation of respondent No,1 during the B.A. Examination at the AJ&K University. The evidence regarding the photographs of a different person on the roll number slip and NOC are insignificant because the Controller of Examination of AJ&K University has conceded the possibility of the same being changed subsequent to the holding of examination. The writing of wrong NIC number on the admission form and roll number slip are admitted by respondent No,1 but it is claimed that the said error was committed unintentionally.
11. Finally, after having addressed the petitioner's plea of impersonation in evidence and argument, it is contended that the said plea has gone outside his pleadings. The petitioner is in terms of section 78(3)(d) of the Representation of Peoples Act, 1976 ("RoPA") duty bound in an election petition to prove the plea of educational disqualification on the standard of a corrupt practice.
Reliance has been placed on Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6) to exemplify that the standard of proof for discharge by the petitioner is that of complainant/ prosecutor of a criminal charge. The petitioner has allegedly failed his duty to bring proof to that standard on the record.
12. The learned counsel for the parties have been heard.
Analysis:
13. The mentioning of wrong NIC number 260-66-084291 (instead of 260-66-064291) on the admission form and the roll number slip filled by the respondent No,1 is not an innocent mistake. It is committed by the respondent No,1 himself on two exhibited documents submitted to the AJ&KU.
The Field Officer NADRA, PW.2 states that the NIC number written by the respondent No,1 on the said documents does not exist in the NADRA record. Consequently, there is reason for inferring that the respondent No,1 has sought to conceal his identity from the AJ&KU. Also it becomes clear that the information provided in letter dated 24-3-2008 by the District Registration Office Jhang (Annexure- M to the Election Petition) that NIC number given by the respondent No,1 to the AJ&KU belonged to one Tabib son of Murad, is incorrect.
14. Nevertheless, the responded No,1 continued to keep the mirage about Tayyab son of Murad alive. This strategy was potentially meant to embarrass the petitioner and also deflect the Tribunal's attention from the false statement made by the respondent No,1- to the AJ&KU. This view is reinforced because at the stage of rehearing of arguments the respondent No,1 suddenly produced Tayyab son of Murad before the Tribunal on 13-8-2012. On page 9 of his signed written submissions, the learned counsel for respondent. No,1 explains, "Tabib son of Murad appeared in Court on 13-8-2012, he as an illiterate person whose .NIC No, is 260-47-084291. Not only it is established that the letter dated 24-3-2008 (Annexure M 'at page 53 of the petition) is dubious, the petitioner had tried to mislead the Court by producing an incorrect document in (sic) who has got nothing to do with the present controversy. The whole case of the petitioner, therefore, falls to the ground."
Concealment of identity:
15. Although PW.2 had put the plea regarding Tayyab son of Murad to rest, but respondent No,1 sought to resurrect that theory to lead the Tribunal away from the concealment of the respondent's own identity on the admission form and toward alleged irresponsibility of the petitioner's plea.
16. Actually, the said act by respondent No,1 revealed that unlike the petitioner, he had traced Tayyab son of Murad himself, while respondent No,1 as RW.1 did not reveal this fact (before the Tribunal), he made a cunning boast that merely gave out a half-truth to entrap the petitioner..
When confronted during his cross examination with the suggestion that one Tayyab son of Murad, had impersonated the respondent No,1 to sit for the AJ&KU B.A. Examination the respondent No,1 'denied the same with the boast that Tayyab son of Murad may be brought to the Tribunal and if the roll number slip bears his photograph, then respondent No,1 would be out of court. A forthright answer would have demonstrated honesty. The fact remains that the respondent No,1 could not as RW.1 explain his reference to a fake NIC number both on his AJ&KU admission form (Exh.P.W.3/3) and his roll number slip (Exh.PW.3/1 ). This is in spite of the fact admitted by respondent No,1 as RW.1 that on the date of filing the AJ&KU forms he had already been issued his new computerized CNIC by NADRA. Accordingly, the respondent's endeavor for a B.A. Degree suffers from a double concealment from the AJ&KU about the particulars of his identity.
Inquiry by AJ&KU:
17. The AJ&KU Controller of Examination as PW.3 stated that on receipt of complaints, the AJ&KU constituted an "inquiry committee to determine whether the changes in the form inducing the difference of photographs and the (three) changes in the examination center are attributable solely to the respondent candidate or there is involvement of any university official as well". It is admitted by respondent No,1 as RW.1 that as a result of the inquiry report the Vice-Chancellor of the University quashed his B.A. Result.
Jurisdiction of AJ&KU:
18. It is noted that the Hon'ble Supreme Court of Azad Jammu and Kashmir (in its judgment dated 8-2-2011) does not reverse or otherwise adjudicate the factual correctness of findings of the AJ&KU inquiry committee given against the respondent No,
1. The judgment merely declares the lack of authority of the University authorities inducing its Syndicate to investigate the validity of a degree more than three years after its issuance. Consequently, AJ&KU Vice Chancellor's notification dated 22-9-2010 quashing the result card/degree of, inter alia, the respondent No,1, was declared illegal.
That view is adopted by the HEC in its report to the ECP. The said judgment and HEC report do not reject the merits of the allegation against the respondent No,
1. In fact, jurisdiction of this Tribunal to adjudicate those allegations is expressly preserved and recognized by the said judgment of the Hon'ble AJ&K Supreme Court.
The impersonator:
19. Another piece of evidence that drew extensive debate from the learned counsel for the parties are the photographs of the impersonator that are available on the roll number slip of the AJ&KU (Exh.PW.3/l) and the BISE Sargodha NOC (Exh.PW.3/2) allowing the respondent No,1 to take up studies at the AJ&KU. However, the photograph on the admission form (Exh.PW.3/3) is of the petitioner which conflicts the photograph on the roll number slip. Close examination of the admission form (Exh.PW.3/3) shows that at the end of its page-2 there is a signed certificate by a Gazetted Officer 1st class verifying the respondent No,1 to have paid prescribed fee and to have passed F.A. Examination Autumn, 1986 from BISE Sargodha. The officer attesting the certificate has signed above a rubber stamp bearing "Lecturer Government College Faisalabad". His name is clearly legible from his signature as "Riaz...". Since contents of the admission form Ex.PW.3/3 are admitted by the respondent No,1, therefore, the signature and stamp of the attesting officer are according to his learned counsel not disputed by him. On page-1 of the admission form the photograph of the respondent No,1 is apparently attested by the same person because the rubber stamp "Lecturer Government College Faisalabad" is clearly legible on the photograph. The signature of the attesting officer is partly visible and resembles the signature of the attesting officer on page-2 of the admission form where it is clearly legible. As the respondent No,1 has not alleged change of photograph on the admission form, it appeals to reason that the same officer has, attested both the photograph of the respondent No,1 and the certificate at the end of the admission form.
20. Turning now to the roll number slip Exh.PW.3/1 which contains the photograph of the alleged impersonator. A rubber stamp "Lecturer Government College Faisalabad" is clearly legible on the photograph. Above that stamp, the signature of a person bearing the name "Riaz..." is also clearly visible. Under section 62 RoPA this Tribunal has the authority to invoke Article 84 of the Qanun-e- Shahadat Order, 1984 for comparing a disputed writing with some other writing admitted by a party before the Tribunal. Reference is made to Mst. Ummatul Waheed and others v. Mst. Nasira Kausar and others (1985 SCM R 214), Muslim Commercial Bank Ltd. Through General Attorney and another v. Amit Hussain and another (1996 SCM R 464), Ghulam Rasool and others v. Sardar-ul- Hassan and another (1997 SCM R 976) and Messrs Wagas Enterprises and others v. Allied Bank of Pakistan and 2 others (1999 SCM R 85). The signature of the attesting officer at page-2 of the admission form Exh.PW.3/3 is undisputed by the respondent No,
1. After careful comparison, intimated to and opined by the learned counsel for the parties, this signature and stamp is to the mind of the Tribunal identical to the attesting signature and rubber stamp affixed on the photograph of the alleged impersonator of the respondent No,1 on the roll number slip Exh.PW.3/1.
The first conclusion that follows the foregoing view is that the photograph on the roll number slip has been attested by the person who is the attesting officer on page 2 of the admission Form..
Secondly, that attestation of the two exhibited documents was done on their respective portions contemporaneously: That means that the photograph of the alleged impersonator on the roll number slip Exh.PW.3/1 was affixed contemporaneously with the filling and filing of the admission form Ex.PW.3/3. Therefore, the respondent's plea that the photograph on his roll number slip has been changed subsequently is without merit and so is his plea of political influence. The fact that in the record of AJ&KU the BISE Sargodha NOC (Exh.PW.3/2) also bears the photograph of the, impersonator is significant but that document for reasons already stated, is irrelevant to the question of impersonation.
Entry by roll number slip:
21. In the light of the said finding a crucial point emerges from the statement given by PW.3 Controller of Examination AJ&KU. It is that the person whose Photograph appears on the roll number slip is the one who is permitted to enter the B.A. Examination hall and it is he who has in the present case appeared through the entire examination. Resultantly, the respondent No,1 having roll number 7772 in the 2004 First Annual B.A. Examination of the AJ&KU was replaced by the impersonator whose photograph was affixed on the roll number slip Exh.PW.3/1 to take the examination. This view PW.3, is re-inforced by the Controller of Examination AJ&KU during his cross- examination by the respondent No,
1. He said that the roll number slip is a part of the admission form which is filled in simultaneously before its submission to the AJ&KU. Subsequently, the University office detaches the roll number slip from the admission form and hands it over to the registered candidate for granting him entry into the examination hall. Therefore, apart from the identicity of the attesting signature and of the rubber stamp, the two exhibited documents actually are parts of one form and are filed as such, by a candidate before the University authorities.
Changes creating doubt:
22. In addition, during- cross examination PW.3 also volunteered that the examination center of respondent No,1 was changed from Chakoti which is at the distance of 40-KM from Muzaffarabad to Sumani which is 200-KM away from Muzaffarabad and then again to Ghari Dupata. The repeated change of examination center of the respondent .No,1 became one of the grounds for inquiry by the AJ&KU against the respondent No,
1. The findings of the inquiry committee are instructive but not binding on this Tribunal. However, the subject matter of inquiry is evidence, available on the face of the record, for the Tribunal. The findings of the inquiry committee and quashment of the B.A. Result of the respondent No,1 on 22-9-2010 by the Vice Chancellor of the AJ&KU are facts that have corroborative force and reinforce the finding about the respondent's B.A.
Degree in the mind of the Tribunal.
Conduct of the respondent:
23. The Tribunal cannot avoid commenting on the conduct of respondent No,1 during the proceedings of the election petition. For instance during his examination in chief as RW.1 he stated that he wrote his own NIC number on the admission form Ex.PW.3/3 whereas he knew very well and admitted during cross examination that he had written a wrong and fictitious NIC number on that form. When he was asked about the person who had attested his photographs on the admission form he conveniently said that he had forgotten the name.
' When he was reminded such person was a Lecturer of Government College, Faisalabad again he said that he had forgotten the person. An astute man with such dense memory is a facade and a farce. He explained he wrote the old NIC on the admission form because he did not at the time have his CNIC with him. Then why give a fictitious NIC number? He was quick to say that no advantage was derived by hiding his CNIC number. Still why the wrong old NIC number? The respondent No,1 was keen to justify his wrong more than his willingness to admit it.
24. The respondent started his B.A. Studies in 2004 as a private and external student at the AJ&KU some 19 years after he passed his F.A. Examination from BISE Sargodha. The reason he gave as RW.1 for opting AJ&KU is because his preoccupation with the business of his cotton factory and his rice mill made the schedule of examination at the AJ&KU suitable to his convenience more than any other institution. The fact that he did not have to take any course of instruction in any institution or to have minimum number of attended lectures at the AJ&KU or to be a. Resident of AJ&K to become a candidate for the AJ&KU B.A. Degree are obvious reasons which the respondent No,1 availed but did not mention. His answers are half-truths; these are not forthright. There is an element of subterfuge and deceit in his conduct and bearing that is typical of a bully or a cheat.
This is exemplified by his sudden boast about Tayyab son of Murad for not being his impersonator.
The impression left by the respondent No,1 on the Tribunal is- that he is clever, crafty and mendacious. Such impression is consistent with the above findings arrived by the Tribunal that the respondent No,1 did not personally sit for and take the B.A. Examination at AJ&KU but was substituted by an impersonator. Whereas the degree issued by the AJ&KU to the respondent No,1 is valid and not fake, but it was procured fraudulently, dishonestly and illegally.
25. The learned counsel for respondent No,1 has tried to bring the fraudulent conduct of respondent. No,1 within the ambit of "false statement" regarding educational qualification of a candidate in the election. Section 78(3)(d) of RoPA treats such a "false statement" to be a corrupt practice; the case of Syed Saeed Hassan v. Pyar Ali and 7 others (PLD 1976 SC 6) lays down that the standard of proof for establishing a corrupt practice is the same that applies to a criminal charge.
The submission made by the learned counsel for the respondent No,1 is, however, without merit. A false statement is according to Black's Law IN Dictionary an untrue statement. In the present case, the fact that respondent No,1 possesses B.A. Degree of AJ&KU is a true statement. However, the wrong behind such truth is the fraud and dishonest practice adopted by the respondent No,1 to secure the said degree. The rule laid down by the Hon'ble Supreme Court of Pakistan in the case Ghulam Akbar Lang v. Dewan Ashiq Hussain Bukhari and others (2012 SCMR 4,366) treats a degree obtained without passing the examination as in the present case to fall within the mischief of section 99(cc) of RoPA. Para-14 of the judgment is re-produced below: "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 degree which have been secured validly after passing the examination." (emphasis supplied)
26. In the present case, the respondent No,1 did not himself pass the AJ&KU 1st Annual B.A.
Examination 2004. He is therefore liable to penalty under section 99(1)(cc) RoPA. The relief prayed in the election petition is derived from section 68(1)(b) of RoPA. The said provision, reproduced below, is concerned with relief regarding a pre-election disqualification and not with misconduct during election.
68. Ground for declaring election of returned candidate void.-- -
(1) The Tribunal shall declare the election of the returned candidate to be void if it is satisfied that-- - (a)
(b) the returned candidate was not, on the nomination day, qualified for, or was disqualified from, being elected as a member; or ' For the said relief the criminal burden of proof is certainly not attracted and the matter is to be decided on the basis of preponderance of evidence. There is sufficient unrebutted positive evidence in this matter to prove that the respondent No,.1 had on the nomination day not passed a B.A. Examination and was disqualified from being elected as Member Provincial Assembly ("MPA").
27. In the result, this election petition is accepted. The respondent No,I is declared on the nomination date to be disqualified to be elected as MPA. The fact that he procured his B.A. Degree through dishonest, fraudulent and illegal means also imposes upon him other disqualifications in terms of Article 62 of the Constitution.