' QAISER RASHID KHAN, J.---Through the instant appeal filed under section 410 Cr.P.C. Read with section 94(2) of Act LXXXV of 1976, the appellant has called in question the judgment dated 23-4- 2012 passed by the learned Sessions Judge, D.I.Khan whereby he was convicted under section 199 P.P.C. Read with sections 78(3)(d) and 82 of the Representation of the People Act, 1976 and sentenced to rigorous imprisonment for one year with a fine of Rs,5,000 or in default, to suffer simple imprisonment for one month. He was also convicted under section 200, P.P.C. Read with sections 78(3)(d) and 82 of the Representation of the People Act, 1976 and sentenced to rigorous imprisonment for one year with a fine of Rs,5,000 or in default, to undergo simple imprisonment for one month. On further conviction under section 471, P.P.C. Read with sections 78(3)(d) and 82 of the Representation of the People Act, 1976, he was sentenced to rigorous imprisonment for one year with a fine of Rs,5,000 or in default, to suffer further simple imprisonment for one month. All the sentences were ordered to run concurrently.
2. Precise facts leading to the instant appeal are that the Deputy Election Commissioner, D.I.Khan filed a complaint for corrupt practice against the appellant under sections 199/200/471 P.P.C. Read with sections 78(3)(d) and 82 of the Representation of the People Act, 1976 averring therein that the appellant contested the election of the Provincial A Assembly, Khyber Pakhtunkhwa against the reserved seat for non-Muslims held in 2008 and in his nomination papers filed before the Returning Officer for the said seat on 25-11-2007, he had declared that he possessed the educational qualification of B.A. From the Gomal University, D.I.Khan and that he was qualified under Article 62 of the Constitution of Islamic Republic of Pakistan and was not subject to any disqualification under Article 63 of the Constitution; that the B.A. Passed marks sheet of the appellant stated to be issued by the Gomal University, D.I.Khan when scrutinized by the Higher Education Commission through the Controller of Examinations of the said University was found to be bogus and accordingly when a notice was issued to the appellant to appear and defend himself, he failed to produce any evidence in rebuttal A and that in view of the false declaration on oath in his nomination papers filed on 25-11-2007, claiming to be a graduate, prima facie constituted an offence of corrupt practice within the meaning of section 78(3)(d) of the Representation of the People Act, 1976 read with sections 199/200/ 471, P.P.C. And that the offence of corrupt practice being punishable under section 82 of the Act ibid, the appellant/accused was liable to be proceeded against under section 94 of the said Act.
3. Accordingly statement of the complainant under section 200, Cr.P.C. Was recorded and since the contents of the complaint prima facie constituted a cognizable offence, therefore, the appellant/accused was summoned and after compliance with the provisions of section 265-C, Cr.P.C., formal charge was initially framed against the accused/ appellant on 28-11-2011 to which he did not plead guilty and claimed trial. To bring home the charge of guilt against the accused/appellant, the prosecution examined five witnesses. Thereafter, the accused/ appellant was examined under section 342, Cr.P.C. Wherein he professed innocence and false implication.
Though he did not examine himself under section 340(2) Cr.P.C. But offered to produce defence.
After full dress trial when the judgment was about to be announced, it came to the notice of the learned trial Judge that the charge framed against the appellant/accused did not contain sections 78(3)(d) and 82 of the Representation of the People Act, 1976 and thus the charge was reframed. The appellant did not plead guilty to the charge. Both the parties were given opportunity to produce additional evidence if they so desired but they stated that they did not wish to produce additional evidence and relied on the already recorded evidence and to this effect, joint statement of the complainant as well as the appellant/accused Was recorded and the appellant was convicted and sentenced as mentioned above vide judgment dated 23-4-2012. Hence the instant appeal.
4. The learned counsel for the appellant argued that the appellant is innocent and is in no manner involved in any of the offence for which he has been charged with; that the judgment has been passed in disregard to the record of the case; that the case of the prosecution is full of doubts, the benefit of which should have been extended to the appellant; that the impugned judgment is against the settled principles of administration of criminal justice; that the judgment under challenge is based on misreading and non-reading of evidence which has resulted into miscarriage of justice; that the appellant belongs to Hindu community and thus the provisions of Articles 62 and 63 of the Constitution are not stricto sensu applicable in his case and thus the learned Sessions Judge has wrongly convicted and sentenced the appellant.
5. The learned standing federal counsel for the Election Commission of Pakistan through Deputy Election Commissioner, D.I.Khan as well as the learned A.A.G. For the State opposed the contentions of the learned counsel for the appellant and defended the impugned judgment of the learned trial court on almost the same grounds as enumerated therein.
6. Arguments heard and record perused.
7. The case of the appellant is all about documentary evidence. The controversy regarding the B.A.
Degree of the appellant has its roots in the nomination form-l-Alif meant for the election of non- Muslims against the reserved seats which was submitted before the Returning Officer way back on 25-11-2007. In the said printed form, the proposed person/candidate was to declare and state on oath that he was qualified under Article 62 of the Constitution of Islamic Republic of Pakistan and simultaneously that he was not disqualified under Article 63 of the Constitution. The same was as per section 12 of the Act ibid which reads as below:- "Nomination for election.---(1) Any elector of a constituency may propose or second the name of any duly qualified person to be a member for that constituency.
(2) Every nomination shall be made by a separate nomination paper in the prescribed form which shall be signed both by the proposer and the seconder and shall, on solemn affirmation made and signed by the candidate, accompany----
(a) a declaration that he has consented to the nomination and that he fulfils the qualifications specified in Article 62 and is not subject to any of the disqualifications specified in Article 63 or any other law for the time being in force for being elected as a member; ' The appellant being the proposed candidate was a signatory to his nomination and declaration.
Moreover, he had mentioned in the same very form that his qualification was B.A. And that is how he got elected as an M.P.A against the reserved seat for minorities. Along with the nomination papers, he had provided a photocopy of the provisional certificate (Ex.P.W.1/9) issued by the.
Controller of Examinations, Gomal University, D.I.Khan showing him to have passed his B.A. Part-II Supplementary Examination securing 237/550 marks. The appellant had a smooth sailing as an elected M.P.A. In the province of Khyber Pakhtunkhwa, till his brother-in-faith namely, Ajeet Bahadur (P.W.3), coordinator, Pakistan Minorities Coordination Pakistan brought the B.A. Status of the appellant into the notice of Chief Election Commissioner in writing stating therein that the B.A.
Certificate of the appellant was bogus and that the matter be verified. The matter was probed by the C.E.C. Through a committee consisting of three members for the verification of degree of the appellant and during the course of proceedings, the appellant submitted his B.A. Degree claiming the same to be a genuine document which on verification was found to be fake and bogus. The said Ajeet Bahadur recorded his statement as P.W.3 before the learned trial Judge. Ahmad Nawaz, Deputy Election Commissioner, D.I.Khan (P.W.5) as per the directions of Election Commission of Pakistan submitted a private complaint against the accused/ appellant for presenting a fake and bogus degree at the time of submission of nomination papers before the concerned Returning Officer. In this respect he was authorized-by the authority vide Ex.P.W.5/1. Sher Afgan Khan, Provincial Election Commissioner, Peshawar presented a photocopy of provisional certificate (Ex.P.W.1/9) in the name of accused in respect of Supplementary Examination of B.A. 1999 issued by the authorities of Gomal University bearing No,007367 as well as D.M.C. Issued by the authorities under Roll No,1195 on 3-6-2000 having No,012677 of the session, 1999 Supplementary (Ex.P.W.1/10).
Azizullah Khan, Assistant Director, High Education Commission, Islamabad (P.W.2) stated that regarding the status of the B.A. Degree of the appellant, the Vice Chancellor of the University confirmed the same to be fake. The Degree Supplement Information Form duly signed by the Controller of Examinations and Vice Chancellor, Gomal University (Ex.P.W.2/2) too, confirmed that as per record of the examination section of the Gomal University, the D.M.C. Bearing Serial No,012677 of B.A. Degree submitted to the Election Commission of Pakistan during elections held in 2008 was never issued by the University and was a fake document and that he had not completed the requirements of B.A. Degree and was still marked as failed in English (Compulsory) Part-II and was thus held as a non-graduate. Similarly, in the Degree Supplement Information Form (Ex.P.W.2/5) in the name of Kishore Kumar bearing No,3963/Exam/G.U. Dated 6-10-2010 duly signed by the Controller of Examinations and Assistant Registrar, Gomal University as well as countersigned by the Vice Chancellor, Gomal University, the appellant had appeared in Part-I examination in 1996 Annual under Roll No,1236 and Registration No,2070-PBS-95 but was declared failed in political science paper and later on he was continuously declared failed in B.A. Part-I and Part-II examinations and in 1999 Supplementary, he appeared under Roll No,1195 but was again declared failed in B.A. Part-I in political science paper and B.A. Part-II in English paper and that as per the university record, "he stood failed in the two papers till todate". Needless to mention that the said document was signed by the concerned authorities of the University as late as on 6-10-2010.
The photocopy of the degree (Ex.P.W.2/6) bearing Serial No,001646 proved to be a fake and bogus document wherein the signature of the Controller of Examinations as well as the counter signature of the Vice Chancellor, Gomal University are forged. Moreover, in his defence, the appellant produced Abdul Baseer, Senior Clerk, Exam Section, New Campus, Gomal University, D.I.Khan as DW-1 who sealed the fate of the degree of the appellant by producing an extract of register (Ex.R.W.1/1) pertaining to private students of Bachelor of Arts wherein against Registration No, 2870- PBS-95, the name of the appellant Kishore Kumar is mentioned. He further spilled the beans much to the chagrin and detriment of the appellant when he stated in clear words that, "according to the entries in the register he has been shown to have passed his supplementary examination of Part-I and Part-II BA. Volunteered that these entries are bogus and are not in my handwriting and later on, on my checking and verification I have cancelled these entries with my note of writing given at the footnotes of said register on 20-7-2009". He further reaffirmed during his cross-examination that according to the record of the University, the appellant had not passed his B.A. Examination from Gomal University, D.I.Khan and he had failed in his B.A. Examination.
8. All the P.Ws. Who deposed against the appellant before the learned trial court stood their ground during the course of cross examination and did not budge an inch from their stance and deposition that the B.A. Degree of the appellant was a fake and bogus document. Moreover, the appellant never for once disowned the said degree and even during the course of arguments, he on one occasion was called to the rostrum to clarify as to whether the degree (Ex.P.W.2/6) was the one he had submitted before the Election Commission of Pakistan, his answer was in the affirmative. Thus the appellant by presenting a fake and bogus document i,e, B.A. Degree before the Election Commission of Pakistan claiming the same to be a genuine document and in the process got elected as an M.P.A. For five years did indulge in corrupt practice. The phrase 'corrupt practice' has been explained in section 78 of the Act ibid which is as follows:- "Corrupt practice---A person is guilty of corrupt practice if he--
(1) contravenes the provisions of section 49;
(2) is guilty of bribery, personation or undue influence;
(3) makes or publishes a false statement or submits false or incorrect declaration in any particular material--
(a) .................................
(b) .................................
(c) ...................................
(d) in respect of his educational qualifications, assets and liabilities or any liability with regard to payment of loans or adherence to party affiliation specified in subsection (2) of section 12.
(4) ...............................................
(5)
(6).
9. During his five years term, the appellant enjoyed all the facilities, perks, privileges and monetary benefits in the shape of various allowances including salary, TA/DA, medical bills and a host of other such prerogatives. But for his fake and bogus degree through which he participated in the elections and got elected, he would not have availed of such benefits and facilities. It was during the twilight of his political career as an M.P.A. When the fact regarding his fake degree was unearthed. Such being the case, we are of the considered view that the learned trial court appreciated the evidence brought on record in its true perspective and arrived at a just and legal conclusion while convicting the appellant. The impugned judgment is, therefore, maintained and the appeal in hand is dismissed.
10. Before parting with this judgment, we may add that the case of the appellant is at par with some parliamentarians who got elected to the national and provincial assemblies on the basis of fake and bogus certificates, degrees and religious 'sanads' and in the process, availed of all the perks, privileges and monetary benefits. It takes us back to our history, to the epoch making struggle of the Quaid-e-Azam for the creation of Pakistan and to the last days that he spent at Ziarat, Balochistan when he was suffering from tuberculosis (by then an incurable disease). He was attended by his physician colonel Dr. Ellahi Bakhsh, who was looking after the Quaid with religious fervor. On one occasion when the Quaid on account of failing health almost refused to take anything and there was every apprehension that he might not survive due to malnutrition, his personal cook (who had at one time served at his mansion/ residence at Srinagar and who had by then shifted to his ancestral home at then Cambelpur, presently Attock) was summoned to prepare food for the Quaid. The said cook was flown to Quetta and then driven to Ziarat and history has it that the Quaid took a little more food that day than what he would take in the ordinary course, with which Dr. Ellahi Bakhsh was simply overjoyed. However, the genius as he was, the inquisitive Quaid wanted to know about the person who had prepared the food and when he was told about the same, instead of appreciating the gesture of his doctor, he was simply infuriated and remarked that the nascent state of Pakistan was not supposed to look after the food and taste of the Governor General of the country. He summoned the cook, shook hands with him, asked for his personal cheque book and paid him the TA/DA and the aerial fare from his personal account.
Such was the character of the founder of the nation. However, he did not get time to put the things in order and shortly left for his eternal abode after the creation of Pakistan. It was in that context when that icon of the poets Faiz Ahmad Faiz wrote his legendry poem full of pathos and melancholy, but of course, hope. Some of its couplets are as below:- ' Faiz rightly portrays the feelings of the teeming millions of Pakistan when on the one hand he out of his own anguish talks about the stained light" and "the night bitten dawn" and that "this is not the dawn that we yearned for" but then exhorts his countrymen to march on as "the epic journey continues" and rightly so as despite heavy odds, this country has survived and progressed.
11. Allah Almighty in His infinite mercy has blessed us in many ways. Underneath its soil, natural resources like gas and petrol lie in great abundance as well as immeasurable untapped wealth in the form of minerals which is sufficient to make Pakistan stand as a proud and economically viable country in the comity of the developed nations of the world. However, all it needs is an honest, selfless and concerted effort to take this country and its people out of the various problems and the task is to be undertaken by people of all the strata of the society with national zeal.