' JAMAL KHAN MANDOKHAIL, J.- The Election Commission of Pakistan in 2007, decided to conduct general elections in the month of February, 2008. Mr. Muhammad Amin Umrani (the respondent No,l) submitted his nomination papers against a seat of the Balochistan Provincial Assembly, Constituency of PB-29, Naseerabad, on the basis of the degree, allegedly issued to him by the University of Balochistan. The respondent No,l contested the elections and subsequently, was declared and notified as a successful candidate. On formation of the Balochistan Cabinet, he became the part of it as a "Minister for Excise and Taxation Department, Government of Balochistan". Through the instant petition, the petitioner called in question the elections of the respondent No,1 on the ground that to contest the elections in 2008, a candidate must be a graduate, but the degree of the respondent No,l is forged,' therefore, he is not a graduate. To support his contention,' the petitioner annexed with his petition the examination form, submitted before the University of Balochistan for appearance in the exams, of B.A.
' It is the case of the petitioner that the respondent No,1 did not appear in examination hall, rather in his place, Mr. Mumtaz Ali (the respondent No,4) appeared and solved the papers, as such, succeeded in getting the degree fraudulently. The petitioner prayed to issue a writ of quo warranto against the respondent No,l, declaring him to be disqualified. Notice of the petition was issued to the respondents, in response, the University of Balochistan filed its parawise comments and on the direction of this court, they submitted a report in respect of the examination form and the documents submitted before the examination branch. The private respondents also submitted their separate parawise comments, denying the contention of the petitioner.
2. Learned counsel for the petitioner stated that on coming to know about the fraud committed by the respondent No,l, the petitioner, having, no alternate and efficacious remedy, approached this Court with a request to ask the respondent No, 1 as to how he holds the office in view of the established facts that his degree is forged. According to him, the contention of the petitioner got support from the report of the University of Balochistan, therefore, the respondent No,l is not entitled to retain the office. The learned counsel stated that this Court has the power to declare the election of the respondent No,l, as null and void. He 'relied upon a judgment passed in the cases of Mst.
Hazan v. The Government of Balochistan, reported in (PLD 2005 Quetta 145) and Saifullah Khan v.
Hafiz Hamdullah reported in (PLD 1997 Quetta 104).
3. Learned counsel for the respondents Nos,l and 4 opposed the contention and stated that this Court has no jurisdiction to entertain the petition for the reason that it is an election dispute which is triable by an Election Tribunal and it also involves a factual controversy, therefore, it cannot be resolved through a Constitutional Petition, hence the petition is not maintainable. Learned counsel for the respondent No,l argued that the degree has lawfully been obtained from the University of Balochistan and the respondent No,l himself appeared and solved the papers in the exam. The learned counsel for the respondent No,4 also supported the contention of the respondent No,l and stated that he never appeared in the examination of B.A. In place of the respondent No,l. Both the learned counsel for the respondents Nos,l and 4 further stated that the documents relied upon by the petitioner are forged and have been manipulated by him in connivance with the University officials, whereas, the degree is genuine.
4. Learned counsel for the respondent No,3 (University of Balochistan) relied upon its parawise comments and the report and stated that the record of the university reveals that the examination form and a copy of the local certificate submitted before the examination branch contains the name and signature of the respondent No,l, whereas photographs of the respondent No,4 have been affixed upon them. According to him, the documents reveals that actually the respondent No,4 appeared in the exam instead of the respondent No,l and solved the papers, thus, succeeded in getting the degree. The learned counsel further stated that the University officials will take action against the responsible after a decision of this petition.
5. We have heard the learned counsel for the parties and have gone through the Article 8-A of the Conduct of General Elections Order 2002, which is reproduced hereinbelow::- "8-A Educational qualification for a member of Majlis-e-Shoor (Parliament) and a Provincial Assembly.- Notwithstanding anything contained in the Constitution of Islamic Republic of Pakistan 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the 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 (XXIlI of 1974) or any other law for the time being in force."
' The above referred law provides that no person is eligible to contest the elections, who is not a graduate. A candidate, for the election to the National Assembly or the Provincial Assembly should at least be a graduate in any discipline having a degree, from a University recognized by the.
University Grants Commission. At the time of the scrutiny of the. Nomination papers, of course the degree was produced by the respondent No,l before the Election Commission of Pakistan, duly issued to him by the University of Balochistan, but at that time, no objection was raised from any comer. Under such circumstances, the Election Authorities treated the degree as genuine, accept the candidature of the respondent No,l.
7. It is to be noted that the respondent No,l claims to have appeared in the B.A. Of the year 2004 and admitted the submission of the examination form, but disputed the affixation of the photographs of the respondent No,4 upon it. To the contrary the University of Balochistan on query of this Court submitted its report, wherein it has categorically been stated that in the Secrecy Branch, the original examination forms of the respondent No,l, having the photographs of the respondent No,4 affixed upon it, with stamp of the concerned office. Similarly, the local certificate also having the photograph of the respondent No,4, whereas the name of the respondent No,l has been mentioned thereon. The respondents Nos,l and 4 failed to substantiate their contention, therefore, merely questioning the secrecy of the examination branch by them is not enough to believe that the examination forms were manipulated after the exam. The material on record duly supported by the original documents and the report of the University have strengthened the contention of the petitioner. Moreover, the fact that the respondent No,l appointed the respondent No,4 as an "Inspector" in the Excise and Taxation Department, shows that he has been rewarded for the services rendered. The material produced before us undoubtedly proved that the respondent No,4 appeared in the exams and solved the entire papers on behalf of the respondent No, 1 by impersonation, succeeded in getting the degree fraudulently, therefore, it cannot be termed as a valid degree, nor the respondent No, 1 could be considered as a graduate. The respondent No,l thereafter posing himself to be a graduate, submitted the forged document, using it as a genuine before the Ejection Commission of Pakistan, hence defrauded it. Under such circumstances, the respondent No,l was not entitled to contest the Elections. The respondents Nos,l and 4 are equally responsible forU committing the forgery by defrauding the University authorities, as well] as, the Election Commission of Pakistan.
8. As regards the objection of the learned counsel for the respondent No,l, regarding the maintainability of the petition, we are not in agreement with him. In the light of above discussion, it is proved that the documents and the material relied upon by the petitioners and confirmed by the University of Balochistan need no evidence, as such-, are proved documents, which could be looked into, while exercising the constitutional jurisdiction. Moreover, at the time of submission of the petition, the Election Tribunal was not functional, therefore, the petitioner, having no alternate remedy, promptly approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan. This Court can ask a person as to how he holds a public office, if he is otherwise not entitled to hold such office. The case-laws relied upon by the petitioner support our view, therefore, the Constitutional Petition is quite competent and this Court has the jurisdiction to look into the matter.
9. In view of what has been discussed hereinabove, we hereby accept the petition and declare that the respondent No,l has no authority to remain as Member, Balochistan Provincial Assembly, Constituency of PB-29 Naseerabad. The election with regard to this constituency as a whole is declared null and void. The Election Commission of Pakistan is directed to de-notify the respondent No,l forthwith and thereafter to hold bye-election against the vacant seat after issuing notification in this behalf. The respondent No, l is directed to return all the amount to the Government of Balochistan received by him in shape of Salary, Allowances, T.A./D.A. And the amounts of Fuel and Utilities consumed during his tenure as Member of Balochistan Provincial Assembly, as well as, Ministry of Balochistan Cabinet.
' The Election Commission of Pakistan is further directed to take action against the respondent No,l, including the registration of the F.I.R, for defrauding the Commission by using a forged document as genuine degree. Similarly, the University of Balochistan is directed to take action against. The respondents Nos,l and 4, including the registration of the F.I.R, and the cancellation of the degree.
Moreover, the Secretary, Excise and Taxation Department, Government of Balochistan, is also directed to initiate inquiry against the respondent No,4 and take appropriate action against him accordingly.