Malik IQBAL AHMAD LANGRIAL vs JAMSHED ALAM and others

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, C J.---Instant direct appeals have been filed against the common judgment dated 8-8-2012 passed by the Election Tribunal, Punjab, whereby Election Petitions Nos. 139 and 142 of 2008 filed by the respondents under sections 52 and 66 of the Representation of the Peoples Act 1976, were allowed..

2. Precisely stating facts of the case are that the appellant and the respondents contested the election for the seat of Provincial Assembly from constituency PP-226 Sahiwal-VII. The appellant vide notification dated 1-3-2008 was declared to be a successful candidate. Jamshed Alam and Saif-ur-Rehman respondents, who were also the contesting candidates from the said constituency, challenged the said notification by means of Election Petitions Nos.17 and 18 of 2008 before the Election Commission of Pakistan, Islamabad. The said Election Petitions were entrusted to Election Tribunal, Multan but subsequently were transferred to Lahore as Election Petitions Nos.139 and 142 of 2008 After filing of written statements by the respondents therein, the learned Election Tribunal framed the following issues":-

(1) Whether the titled petition is not maintainable under the law?

(2) Whether the election petition has been filed with mala fide intention? OPP Whether on the day of election; respondent No,1 lacks academic qualification for contesting election as envisaged under section 8-A of the Conduct of General Election Ordinance, 2002 read with S.99(i)(cc) of the Representation of People Act, 1967?. OPR

(4) Whether respondent No,1 is liable to be disqualified in view of the provisions of. Articles 62, 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with sections 12(2)(F) 42A, . 76A and 82 of Representation of People Act, 1976? OPP

5. Relief.

The petitions were consolidated and were allowed vide impugned judgment dated 8-8-2012; Concluding Para therefrom is reproduced hereinbelow:-- "32. With a little variation of fraud and fabrication methodology adopted by the respondent No,1 the only conclusion possibly to be drawn is that the respondent No,1 was not only ineligible to contest the election for the seat of PP-226 Sahiwal-V11 in the year, but was also not a righteous or honest or an Ameen person. The findings on issues Nso.3 and 4 are accordingly recorded against the respondent No,1 was declared to be an imposter by a learned Division Bench Election Tribunal of this Court in the judgment announced on '26-12-2002 regarding is claim of previous educational qualifications. The respondent No,1 also was not holder of Sanads from Madrassas duly recognized by the Higher Education Commission of Pakistan. The two Sanads from the Dini Madrissas as claimed by the respondent, No,1 are fraudulently manufactured by the respondent through dishonest means of forgery and fabrication. The respondent No,1 did not pass the two additional subjects as per the law laid down by the honourable Supreme Court of Pakistan.

Therefore, the election of the respondent No,I to the seat of PP-226 Sahiwal-VII in the general election of February 2008 is declared illegal and void and accordingly his notification dated 1-3- 2008 as a returned candidate from the constituency PP-226 Sahiwal-VII is set aside and is ordered to be cancelled.

33. None of the election petitioners Mian Saif ur Rehman or Jamshed Alam can be declared as a successful candidate as the substantial majority of the voters of PP-226 Sahiwal-VII did not caste their votes in favour of the either."

The appellant was aggrieved from the said judgment, hence these appeals.

3. We have heard the learned counsel for the parties and with their assistance have examined the material made available before us.

4. It is to be noted that the learned Election Tribunal has declared the appellant a person neither righteous, nor hone'st and ameen on the grounds that; firstly, he was declared to be an imposter by a Division Bench/Election Tribunal, Punjab in the judgment dated 26-12-2002 regarding his claim of education qualification at the time of election 2002; secondly, he was not holder of Sanad from a Madrassa duly recognized by the Higher Education Commission of Pakistan; thirdly, the two Sanads. Of Dini Madrassa as claimed by him were fraudulently manufactured through dishonest means of forgery and fabrication and Lastly, he had not passed the two additional subjects as per law laid down by this Court.

5. With regard to the first ground, it is to be noted that the appellant submitted his nomination papers to contest the election for the seat of National Assembly NA-163 Sahiwal-IV in the year 2002.

At that time along with nomination papers he annexed matriculation, FA and BA certificates before the Returning. Officer to substantiate his requisite educational qualification. The Authenticity of the educational certificates was assailed and ultimately the Election Tribunal, Punjab in Election Appeal No,384/A/2002, after considering the entire documentary and oral evidence, concluded that the appellant was not a graduate and had filed fake educational documents to pose himself as a graduate to overcome the disqualification provided under section 99(1)(cc) of the Act, 1976, and that apparently, he procured the result intimation card A through unlawful means. Thus, there was a clear finding against the appellant that he produced fake documents.

6. At the time of filing of nomination papers to contest the election for the seat of Provincial Assembly, PP-226 Sahiwal-VII, in the general elections held in 2008, in order to substantiate that he holds BA degree B to become eligible to contest the election, he produced two Sanads from Dini Madrassas. One of the Sanads, namely, Shahadatul Aalmia was issued by Jamia Taleemat-e- Islamia, Faisalabad-Rawalpindi. As per notification issued by the Election Commission of Pakistan dated 25-7-2002 in regard to the institutions recognized by the University Grants Commission within the contemplation of Article 8-A of the Conduct of General Elections, 2002, the name of Jamia Taleemat-eIslamia, Sargodha Road, ,Faisalabad has been mentioned whereas the notification produced before the Returning Officer, had interpolation of word "Rawalpindi" against the name of Jamia Taleemat-e-Islamia, Sargodha Road, Faisalabad, although, the said Madrassa is not recognized by the Higher Education Commission. The other Sanad was Sanad-Al-Feraagh issued by Madrast ul-Quran Al-Arabia Bahrul Uloom, Qaria Village Abdullah," Dak Khana Shikarpur, Sindh. The equivalence certificate dated 29-10-2007 recognizing the said Sanad as equivalent to BA (pass) Part-II for the purpose of seeking admission to M.A. (previous) Arabic Islamic Culture, issued by Shah Abdul Latif University, Khairpur was also produced.

7. It is pertinent to mention here that the appellant allegedly obtained the degree of Shahadat-ul- Aalmia in the year 1974-75 whereas the Sanad-Al-Feraagh in the year 2007 (1428 Hijri). When we inquired from the learned counsel that having obtained former degree (Shahadatul-Aalmia) in 1974-75, which is a superior degree (equal to M.A), why the appellant felt it necessary in the year 2007 to obtain their latter degree (equal to B.A.), he stated that he did not press the cliaim to the extent of Sanad of Shahadat-ul-Aalmia. However, he claimed that the appellant was qualified to contest the election on the basis of Sanad-Al-Fraagh, which was recognized from Shah Abdul Latif University, Khairpur University.

8. It is to be noted that in Pakistan following authorities are competent to issue equivalence certificate:-

(1) University Grants Commission (now Higher Education Commission) is authorized to recognize and approve Deeni Madaris and to issue equivalence certificate in respect of Sanads of Al-Aala (Graduation), Al-Aalmia (Master Degree).

(2) Inter Board Committee of. Chairmen (IBCC) is authorized to grant equivalence certificate of Deeni Sanads Al-Sanvia-Aama (Secondary) and Al-Sanvia-Khasa (Higher Secondary).

As far as recognition from Shah Abdul Latif University is concerned, it was not authorized to give equivalence certificate. Further, the said equivalence certificate, as per the statement Assistant Registrar, Shah Abdul Latif University was issued in favour of some other person namely Iqbal Ahmad son of Fateh Sher resident of Karachi. Therefore, it creates doubt regarding the authenticity of the document. The Election Tribunal has dealt with these issues in detail and after thorough examination of record as well as evidence has held that both the Sanads were the result of forgery and fabrication.

9. As far as the issue of having passed two additional subjects in addition to the Sanad of:Dim Madrass, to be eligible to contest the election is concerned, it is to be noted that although the appellant through his attorney stated in statement that he passed the additional subjects but he could not produce any documentary evidence in this regard, as such the Election Tribunal has rightly concluded that the appellant is not eligible to contest the election on this ground too. In the case of Sanaullah Khan v. District Returning Officer, Mianwali (PLD 2005 SC 858), it has been held as under:-

13. In our country educational institutions, both in the Government and private sectors, suffer from lack of uniform education policy, therefore, for the building of national cohesion by promoting social and cultural harmony and designing curricula relevant to nation's changing social and economic needs, compatible with the basic national ideology and thereby providing massive shift from general education to more purposeful agro-technical education; to make provision for Federal supervision of curricula, preparing text-books for various classes and for maintenance of standards of education; Federal Supervision of Curricula, Text Books and Maintenance of Standards of Education Act, 1976 (hereinafter referred to as "the Act of 1976") was promulgated. In exercise of powers under this Act, the Federal Government empowered the UGC to lay down criteria for acceptance of "Sanads" of "Deetti Madaris". Thus UGC vide Notification No,8- 418/Arad/82/128 dated November 17, 1982 declared that the "Sanad" of Shahadat-ulAlmiyya-Fil- Uloomil-Arabia-Wal-Islamia granted by a "Deeni Madrasah," whose name finds mention , therein shall be considered equivalent to M.A. In Arabic/Islamic Studies for the purpose of teaching Arabic/Islamic Studies in the colleges and universities and for pursuing higher studies in Arabic and Islamic Studies. However, for employment other than teaching, "Sanad" holders were required to qualify in two additional subjects other than Arabic and Islamic Studies at B.A. Level of a university. They have also to qualify in the newly-introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. Level. The UGC had been issuing notifications subsequent thereto as me, on 7th June, 1982 (No,814/Acad/84/1316), on 12 the August, 1987 (No,418/Acad/86/2560), and a Notification even date bearing (No,8-418/Acad/86/2573). By means of these Notifications the criteria laid down in Notification 17th November, 1982 by the UGC for making "Sanads" of "Deeni Madaris" acceptable for employment purposes other than the teaching had been reiterated along with the names of "Deeni Madaris" recognized by it. Thus, it is a fact that from 1982 onwards the UGC by means of various notifications referred to hereinabove had been dealing with the cases of a large number of students who received education in "Deeni Madaris" and were granted equivalence certificate subject to passing examination of the additional subjects at the B.A. Level.

Identical question came, up for consideration before this Court in the case of Maulana 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-Almiyya-Fil-Uloomil-Arabia-Wal-Islamia (Master Degree) granted by approved Wafaq/Tanzeem-ulMadaris 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 Begun! (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 (hereinafter 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 end 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 additiondl 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."

Reference in this behalf may also be made to the case. Of, Asmatullah Khan v. Muhammad Sarwar (2011 SCM R 107) wherein the election of .a returned candidate was declared void on the ground that he had not passed the two additional subjects, other than Arabic and Islamic Studies.

10. Learned counsel for the 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 ameen, 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 ameen 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 a impostor 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 elected or chosen as a Member of Majlis-e-Shoora (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 F a condemn-able 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 that 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 effect 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, tiled as Syed Mehmood Akhtar Naqvi, y. Federation of Pakistan (Constitution Petition No,5 of 2012) 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.

13. Thus, for the foregoing reasons, on all points noted hereinabove, the findings of Election Tribunal are upheld being unexceptionable. As such the listed appeals are dismissed, having no merit. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.