' KAZIM ALI MALIK. --- Brief facts giving rise to election petition No, 130/2013 may be given first.
Mumtaz Ahmad Tarar, petitioner (for short, 'the petitioner'), Muhammad ljaz Ahmad Chaudhary, respondent No, 1 and respondents No, 2 to 16 contested the General Elections-2013 for the position of Member, National Assembly from constituency No, NA-108, Mandi Bahaudin-l. On close of the poll, the Presiding Officers of all the polling stations notified for the constituency submitted the statements of the count on form XIV on the basis of which the Returning Officer drew up consolidated statement of the results of the count and declared Muhammad ljaz Ahmad Chaudhary, respondent No, 1 as successful. Election Commission of Pakistan notified him as the returned candidate from the above-said constituency.
2. Feeling aggrieved with the result of election favourable to the returned candidate, the petitioner filed the election petition and called in question the election of the returned candidate with the plea that he (returned candidate) was not qualified to contest the elections on the following grounds:---
1. That he relied on fake and bogus bachelor degree/diploma;
2. That he got allotted a plot measuring seven marlas under Jinnah Abadi Scheme, approved and launched by Government of the Punjab for landless people;
3. That in criminal cases registered in Kuwait, he absconded and did not mention this fact in his nomination papers.
' Besides the above-said grounds of attack, the petitioner also made allegations of corrupt and illegal practices against the returned candidate, the Returning Officer and members of polling staff.
3. Only the returned candidate entered appearance while remaining respondents No, 2 to 16 opted to remain absent and were proceeded against ex parte. On contest being put, the returned candidate denied and dismissed the grounds of attack against his candidature and the result of election with the plea that genuineness of the degree in question had already been verified by the Higher Education Commission of Pakistan (for short, 'HEC'), the Hon'ble Lahore, High Court, Lahore and the august Supreme Court of Pakistan and that the petitioner levelled false, vague and general allegations of rigging without any basis.
4. In the light of counter-claims put forward by the petitioner and the returned candidate through the election petition and the written statement respectively, my learned predecessor framed the following issues:---
1. Whether false and frivolous allegations have been levelled against Returning Officer, Assistant Returning Officers and judicial officers by the petitioner in this Election petition? If so, its effect?
OPR1.
2. Whether this petition is bad for mis-joinder and non-joinder of parties /necessary parties? OPR1.
3. Whether the petitioner did not provide copies of the documents and affidavits annexed with election petition to respondent No, 1 and failed to verify the election petition and the documents on oath as required by notification No, F.1(6)-Coord, dated 16.03.1985 and the relevant Law? OPR1.
4. Whether the petitioner failed to mention particulars of illegal or corrupt practices attributed to respondent No, 1 as required u/s. 55(1)(b) of the Representation of the People Act 1976? OPR1.
5. Whether respondent No, 1 was not a qualified to contest the election dispute? OPA.
6. Whether respondent No, 1 was disqualified to contest the election in dispute? OPA.
7. Whether the election in dispute is liable to be declared as void and the petitioner is entitled to be declared as a returned candidate for the reasons stated in this petition.
8. Whether respondent No, 1 was qualified to contest the election dispute.
9. Relief.
5. At the inception of trial, Mumtaz Ahmad Tarar, petitioner (PW-1) deposed in support of his case and cause. He did not examine any other witness. Besides his own statement, the petitioner brought on record the following documents:---
1. Nomination form filed by the returned candidate for the election in dispute, Ex.P-
2. Nomination form filed by the returned candidate for the election in dispute, Ex.P-2.
3. Degree/Diploma of the returned candidate, under challenge, Ex. P-3.
4. Original Authentication certificate issued by the Department of Foreign Affairs Manila, Philippines, Ex.P-4.
5. Original certification by the Commission on Higher Education Republic of the Philippines, Ex.P-5.
Letter, Ex.P-6 issued by Quezon Colleges, Philippines intimating the petitioner that there was no record regarding the degree/diploma of the returned candidate.
7 Copy of letter, Ex.P-7 by the petitioner to the Registrar, Quezon Colleges, Philippines with the request that a copy of the certification that the degree/diploma was fake, should be dispatched to the HEC, Islamabad.
8. Letter, Ex.P-8 by the Quezon Colleges, Philippines to the petitioner by means of which his request, Ex.P-7 was allowed.
9. Mutation No, 929 dated 15.09.1989, Ex. P-9 whereby, seven marlas plot was mutated in favour of the returned candidate under Jinnah Abadi Scheme.
10. Copy of register Haqdaran-e-Zameen, Ex.P-10, wherein the returned candidate stands recorded as an allottee of plot under Jinnah Abadi Scheme.
11. Copy of application, Ex.P-11 made by the returned candidate before the Additional District Collector, Mandi Bahaudin, for correction of the above-said entries of revenue record.
12. Certificate, Ex.P-12 issued by Immigration Department of Kuwait and attested by the Embassy of Pakistan in Kuwait for arresting Muhammad ljaz Ahmad Haji.
13. Certified copy of FIR No, 500/2003 registered with police station FIA, Passport Circle Lahore, Ex.P- 13.
14. Copy of final report (Challan) in the aforesaid case, Ex.P-14.
15. Certified copy of letter dated 26.07.2002, (Marked-A) from the Registrar, Quezon Colleges of Philippines to the Regional Director, Commission on Higher Education, Philippines adduced in evidence at trial of the election dispute of 2002.
16. Certified copy of letter (Marked-B) by the Commission on Higher Education, Philippines to the Ambassador, Embassy of the Philippines, in Pakistan produced in evidence in the election petition arising out the General Eelcitons-2002.
17. Certificate dated 24.01.2010 issued by Ministry of Interior, Kuwait attested by Embassy of Kuwait and Ministry of Foreign Affairs, camp office, Lahore to the effect that after 24.01.2010 the returned candidate never entered Kuwait (made part of record).
18. Authentication issued by Foreign Service of the Republic of the Philippines, Consular Embassy of the Republic of the Philippines, Islamabad, whereby a certificate dated 15.11.2013 issued by. -the Bureau of Immigration, Manlla to the effect that Mr. Muhammad ljaz Ahmad Chaudhary did not travel in or outside Philippines from 1993 to date (15.11.2013) and content of the letter dated 03.12.2013 by Embassy of Pakistan, Manila to the Ministry of Foreign Affairs, Islamabad and a certificate by Embassy of Philippines in Pakistan to the effect that Mr. Muhammad ljaz Ahmad Chaudhry did not travel from 1993 to date had been verified and confirmed (made part of record).
6. On the other hand, the returned candidate got examined Muhammad Raza Chohan, Director General Accreditation and Attestation, HEC of Pakistan (RW-1). He also entered the witness-box as RW-13 in support of his counter version. RW-2 to RW-12 were also examined to rebut the allegations of malpractices/corrupt practices. Besides the oral evidence to the above effect, the following documents were adduced in evidence on behalf of the returned candidate:---
1. Application, Ex.RW-1/A for equivalence of qualification certificate submitted by the returned candidate supported by degree/diploma in question and other relevant papers before the University Grants Commission, Islamabad.
2. Copy of letter dated 21.08.2002 by University Grants Commission, Islamabad to the returned candidate whereby the degree/diploma awarding college was accepted as accredited Institution and resultantly equivalence certificate, Ex.RW-1/B was issued.
3. Copy of letter dated 02.04.2003, Ex.RW-1/C by the HEC to the Registrar, Quezon Colleges of Philippines whereby verification was sought as to whether the returned candidate had been a regular student of the college besides confirmation qua genuineness of the degree in dispute.
4. Copy of reminder, RW-1/D by the HEC to the Registrar, Quezon Colleges of Philippines in continuation of letter, Ex.RW-1/C.
5. Copy of letter, Ex. RW-1/E by the Quezon Colleges of Philippines to the HEC whereby it was confirmed that the returned candidate completed the Bachelor of Science Major in Business Administration successfully.
6. Copy of letter dated 01.07.2003, Ex.RW-1/F by the HEC to the returned candidate whereby it was confirmed that the degree in question had been accepted as equivalent to corresponding degree FM Pakistan.
7 . Copy of letter dated 24.11.2007, Ex.RW-1/G by the HEC to the returned candidate whereby contents of the letter, Ex.RW-1/F had been certified as authentic and correct.
8. Copy of parawise comments, Ex. RW-1/H in writ petition No, 18677/2010 titled as Muhammad Ijaz Ahmad Chaudhry v. FIA and others.
9. Copy of letter, Ex. RW-1/I by the FIA to the Director Accreditation and Attestation, HEC regarding verification of the degree in question.
10. Copy of letter, Ex. RW-1/J by Assistant Director, HEC to the Deputy Director FIA in response to letter, Ex. RW-1/I.
11. Letter dated 01.07.2010, Ex.RW-1/K by an official of HEC to the Registrar Quezon Colleges whereby, certain questions were raised about genuineness of the degree in dispute.
12. Copy of letter, Ex. RW-1/L by the Quezon Colleges of Philippines to the Assistant Director (A&A), HEC whereby it was reconfirmed that the returned candidate was a regular student of the college and he did B.S.0 from the said institution.
13. Copy of letter dated 29.10.2013, Ex. RW-1/M by the Registrar, Quezon Colleges of Philippines to the petitioner with a copy to the Chairman, HEC, Islamabad whereby it was confirmed that there was no record on the file for the degree in question of the returned candidate and that the special order indicating dispatch of diploma/degree to the returned candidate was invalid and not authentic.
14. Copy of letter dated 28.11.2013, Ex.RW-1/N by the Quezon Colleges of Philippines with a copy to the returned candidate whereby the letters dated 11.09.2013 and 29.10.2013 were declared as ineffective.
15. Copy of National Identity Card of the returned candidate, Ex. RW-1/O.
16. Copy of Secondary School Certificate of Ajaz Ahmad s/o Haji Ahmad with his date of birth as 01.03.1960, Ex. RW-1/P.
17. Certified copy of the order dated 30.03.2004, Ex. RW- 13/1 passed by the Election Tribunal, Lahore in election petition No, 52/2002, titled as Zafarullah Tarar v. Ljaz Ahmad Chaudhary etc.
18. Certified copy of statement, Ex. RW-13/2 of Education Officer, HEC, Islamabad in that election petition.
19. Certified copy of order dated 16.10.2006, Ex. RW-13/3 by Hon'ble Supreme Court of Pakistan whereby an appeal against the order of Election Tribunal, Ex. RW-13/1 had been dismissed in terms of compromise.
20. Copy of letter dated 01.07.2003, Ex. RW-13/4 by Director HEC, Islamabad, to the returned candidate whereby the degree in question had been accepted as equivalent to the corresponding degree from Pakistan.
21. Copy of letter, Ex. RW-13/5 by the Director, Emigration, Islamabad to the returned candidate whereby contents of the letter dated 01.07.2003 (Ex. RW-13/4) were confirmed as authentic and correct.
22. Copy of writ petition No, 18677/2010 titled as Muhammad ljaz Ahmad Chaudhry v. FIA and others, Ex. RW-13/6.
23. Copy of order, Ex. RW-13/7 by the Hon'ble Lahore High Court, Lahore dated 03.09.2010 passed in the above-said writ petition.
24. Copy of order dated 17.09.2010, Ex. RW-13/8 passed in the above-said writ petition.
25. Copy of order dated 01.10.2010, Ex. RW-13/9 passed in the above-said writ petition.
26. Copy of order dated 22.10.2010, Ex. RW-13/10 passed in the said writ petition.
27. Copy of written statement, Ex,RW-13/11 by the returned candidate filed in the previous election petition No, 52/2002 titled as Zafarullah Tarar v. Ijaz Ahmad Chaudhry and others.Copy of statement of the returned candidate, Ex. RW-13/12 made in that election petition as his own witness.
7. On reconsideration, the petitioner withdrew the allegations of rigging/malpractices/corrupt practices against process of the election and opted to prosecute and support the grounds of attack qua qualification or disqualification of the returned candidate to contest the election. In view of this development, the trial of election dispute to the extent of issues No, 1 and 4 and the allegations of rigging stood abated vide order No, 25, dated 07.01.2014 with an observation that the only question of qualification/disqualification of the returned candidate remained in field for adjudication. Needless to add that at the time of final arguments both sides did not utter a single word regarding issues No, 1, 2, 3 and 4 and confined themselves to the question of qualification/disqualification of the returned candidate. Hence, it would be a futile exercise to read and examine the statements of RWs 2 to 12 brought on record to rebut the allegations of malpractices.
8. Now I proceed to examine/analyze/scrutinize the evidence produced by both sides under issues No, 5, 6 and 8 so that it could be ascertained as to whether or not the returned candidate was qualified to contest the General Elections-2013. Learned counsel for the returned candidate has contended that the question with regard to genuineness of the degree/diploma and qualification to contest the election had been determined in his favour upto the Hon'ble Supreme Court of Pakistan in the first round of litigation arising out of the General Elecitons-2002 contested by the returned candidate successfully. The learned counsel for the returned candidate has further contended that the order of learned Election Tribunal dated 01.4.2004 upheld by the Hon'ble Supreme Court of Pakistan stands in the way of the petitioner herein to re-agitate the question regarding genuineness of the degree. This contention is devoid of legal force. Admittedly, the petitioner herein was not a party to the election petition No, 52 of 2002, hence, failure of Zafarullah Tarar, the then political rival of the returned candidate to prove his stance with legal evidence shall not operate as res-judicata or constructive res-judicata against the cause of Mumtaz Ahmed Tarar, petitioner herein set up in the election petition in hand. Furthermore, the Supreme Court of Pakistan did not decide fate of the appeal filed by aforesaid Zafarullah Tarar on merits as the same was dismissed in terms of compromise vide judgment, Ex.RW-13/1. It would not be out of place to mention here that the Election Tribunal takes cognizance of the election dispute to conduct its trial in accordance with the provisions of special law contained in Chapter VII of the Representation of the People Act, 1976 (for short, 'the Act, 1976'). A combined examination of the statutory provisions of Sections 52 to 76 of the Act, 1976 and Notification No, F.I(7)/85-Coord, 16th March, 1985 would show that the Election Tribunal is not required to conduct the trial of election dispute like the trial of land dispute in terms of the provisions of the Code of Civil Procedure, 1908. I am supported in my view by the case-law laid down by apex Court of the country in Malik Umar Aslam's case reported as PLD 2007 SC 362, key lines of which are reproduced below for ready reference:--- "We have heard parties' counsel at length and have also taken into consideration the material so made available on record. A perusal of the scheme of the Act, 1976 relating to filing of election petition under Chapter VII reveals that the law-givers, to ensure expeditious decision of election disputes, has authorized the Election Tribunal to regularize the proceedings itself, instead of following the technicalities of CPC except application of some provisions of specifically made applicable for limited purpose."
' At the cost of repetition, I would say that Mumtaz Ahmed Tarar, petitioner was not party to the previous election petition arising out of the election-2002. That election dispute was between Muhammad Ijaz Ahmed Chaudhary, returned candidate and his the then political rival Zafarullah Tarar. I am unable to agree with the contention of the returned candidate that the petitioner herein should be held responsible for failure of the cause of aforesaid Zafarullah Tarar in the previous round of litigation, which ultimately ended in terms of compromise.
9. Learned counsel for the returned candidate has further argued that the University Grants Commission, Islamabad (predecessor of HEC) accepted the Quezon College of Philippines as accredited institution and issued equivalence certificate, Ex.RW-1/B and that the HEC also confirmed vide letter dated 01.7.2003, Ex.RW-1/F that the degree in question had been accepted as equivalent to corresponding degree from Pakistan. In the light of aforesaid decisions by the University Grants Commission and the Higher Education Commission of Pakistan favourable to the cause of returned candidate, it has been contended that the past and closed transaction should not be reopened for de novo trial at the instance of Mumtaz Ahmed Tarar, petitioner. I propose to take up this argument for disposal in the light of evidence and the law. The returned candidate examined Muhammad Raza Chohan, Director General Accreditation and Attestation, HEC of Pakistan (RW-1), who brought the original Accreditation File touching the bachelor degree, under challenge, which contained contradictory letters on the point in issue, which had allegedly been dispatched to the HEC by the Quezon College of Philippines. Keeping in view, the nature of controversy, the oral evidence produced by both the sides is not very much relevant. Complete record qua the degree/diploma in dispute for and against the case and cause of both sides have been brought on the file of this election petition. An important question, which requires serious thought is as to whether or not the University Grants Commission and its successor the Higher Education Commission of Pakistan discharged their legal functions and performed their sacred duty honestly in accordance with the law and the approved policy on the subject. Both sides burdened the file with contradictory documents regarding equivalence of the degree and accreditation of Quezon College of Philippines. For facility of reference, the said contradictory documents are given below at the cost of repetition:--- ' Documents in support of the stance of the returned candidate:- I. Copy of letter dated 21.8.2002 (Ex.RW-1/B) by means of which the University Grants Commission accepted the Quezon College of Philippines as accredited institution and declared the degree/diploma of the returned candidate as equivalent to the corresponding degree from Pakistan.
II. Copy of letter (Ex.RW-1/E) whereby the Quezon College of Philippines confirmed to the HEC that the returned candidate competed the Bachelor of Science Major in Business Administration successfully. III. Copy of letter dated 01.7.2003. Ex.RW1/F whereby the HEC confirmed that the degree under challenge was equivalent to corresponding degree from Pakistan.
IV. Copy of letter, Ex.RW-1/L by the Quezon Colleges of Philippines addressed to the HEC whereby it was reconfirmed that the returned candidate was a regular student of the Quezon College of Philippines and he did B.Sc. From the said institution. V. Copy of letter dated 01.7.2003, Ex.RW-13/4 by the Director, HEC addressed to the returned candidate whereby degree in question had been accepted as equivalent to the corresponding degree from Pakistan.
'Document in support of the stance of the titioner:I.
' Original authentication certificate (Ex.P-4) issued by the Department of Foreign Affairs, Manila Philippines.
' Original certification (Ex.P-5) by the Commission of Higher Education Philippines.
III. Letter, Ex.P-6 issued by the Quezon Colleges Philippines to the effect that there was no record with the College regarding the degree/diploma of the returned candidate. IV. Certified copy of letter dated 26.7.2002 (Marked-A) from the Registrar Quezon College of Philippines to the Regional Director Commission on Higher Education, Philippines whereby the degree in question has been termed as invalid. V. Certified copy of letter (Marked-B) by the Commission on Higher Education, Philippines to the Ambassador of the Embassy of Philippines in Pakistan whereby the degree in question of the returned candidate has been disowned. VI. Copy of letter dated 29.10.2013, Ex.RW- 1/M by the Registrar Quezon College of Philippines addressed to the petitioner and the Chairman, HEC of Pakistan whereby it has been confirmed that there is no record on the file for the degree in question of the returned candidate and that the special order indicating dispatch of diploma/degree to the returned candidate is invalid and not authentic.
' Before adverting to the worth and evidential value of the documents, referred to above, I find it convenient to bring on record the approved and declared policy of HEC of Pakistan on the subject of accreditation/equivalence qua foreign institutions/degree. The returned candidate got examined Muhammad Raza Chohan, Director General Accreditation & Attestation, HEC (RW-1), who produced the original file and brought on record copies of above-said contradictory letters allegedly received from Quezon College of Philippines. On cross-examination, the Director General Accreditation & Attestation, HEC (RW-1) stated about the approved policy of HEC, already made public on website, to the following effect:--- "It is the approved policy of HEC already made on public web site that the verification of the antecedents of an applicant (student), particulars of the degree and program of studies, course contents, period of study abroad and the accredited status of the institution are the main components of validation process for equivalence of qualifications. Before granting any equivalence, the HEC has to ensure the antecedents of the applicant, degree programs and credibility of the institution granting the degree. In order to verify accredited status of a foreign university particularly in the private sector, main areas on which the information is required by the HEC are: the date of establishment, charter granting body, legal status, name of the authority granting accreditation, funding sources, administrative and academic structure, admission criteria, arrangements for maintaining academic standers of courses, course validation and review system, faculty/staff, degree programs, student enrolment, examination and assessment, quality assurance system and student supervision and proof of world-wide recognition".
' Now I propose to examine as to whether or not the University Grants Commission and the Higher Education Commission of Pakistan accepted the Quezon College as accredited institution and declared the degree in question as equivalent to the corresponding degree from Pakistan, in accordance with the above-said approved policy. I have made microscopic examination of each and every document produced by the parties coupled with statement on oath of the Director General Accreditation & Attestation, HEC (RW1) and would say for multiple reasons that the University Grants Commission and its successor the Higher Education Commission of Pakistan miserably failed to discharge the obligations cast on them by the law. Firstly, the returned candidate produced Secondary School Certificate (matriculation certificate), Ex.RW-1 /P with the claim that he passed the Secondary School Examination in 1975 as student of Govt. High School, Taxila held by the Board of Intermediate and Secondary School Examination, Sargodha. This claim is not receiving support from the matriculation certificate, Ex.RW-1/P. The matriculation certificate, Ex.RW1/P relied upon by the returned candidate was awarded to ljaz Ahmed s/o. Haji Ahmed with date of birth as 01.3.1960 whereas name and other particulars of the returned candidate given in his NIC, Ex.RW-1/O and his application form for equivalence, Ex.RW-1/A are Muhammad ljaz Ahmed Chaudhary s/o Haji Chaudhary with date of birth as 05.4.1957. In view of the above-said state of record the claim of the returned candidate based on the matriculation certificate, Ex.RW-1/P has fallen to the ground. At the cost of repetition, I would refer to the approved policy of the HEC brought on record by the Director General Accreditation & Attestation, HEC (RW-1) to the effect that name of the student must be the same throughout in his educational testimonials such as matriculation, intermediate, bachelor, masters and PHD, as well as his CNIC/passport, otherwise the testimonials would not be attested by the HEC. In the case in hand the name of the returned candidate has been given as Muhammad ljaz Ahmed Chaudhary in his CNIC (Ex.RW-1/O) and the equivalence form (Ex.RW-1/A) and not ljaz Ahmed as mentioned in the matriculation certificate, Ex.RW-1/P. Father's name of the returned candidate has been given in, his MC and the application form for equivalence as Haji Chaudhary, whereas father's name of the matriculation certificate (Ex.RW-1/P) holder is Haji Ahmed. The date of birth of the returned candidate has been given in the application form for equivalence and the CNIC as 05.4.1957, whereas the date of birth of the matriculation certificate holder stands mentioned as 01.3.1960. The HEC did not take notice of the above-said contradictions and accepted the degree in question as equivalent to the corresponding degree from Pakistan in utter disregard of its own policy and in this way facilitated the returned candidate to use the matriculation certificate of one ljaz Ahmed s/o Haji Ahmed as his own despite the fact that the date of birth of the matriculation certificate holder stood recorded as 01.3.1960 and that of the returned candidate as 05.4.1957. On cross-examination, the Director General Accreditation & Attestation, HEC (RW-1) was not in a position to defend the orders passed by the Higher Education Commission or University Grants Commission in favour of the returned candidate. Relevant portion of his statement reads as under:- "Copy of NIC of respondent is available on the file, a photo-static copy of which is Ex.RW-1/O, according to which his date of birth has been given as 05.4.1957. According to the copy of Secondary School Certificate of respondent No, 1, Ex.RW-1/P his date of birth has been receded as 01.3.1967. The HEC of Pakistan did not take notice of contradiction between the date of birth of respondent No, 1 recorded in the NIC and the Secondary School Certificate. The HEC did not inquire about genuineness of the certificate, Ex.RW1/P. Ex.RW-1/A is the application made by respondent No, 1 bearing his date of birth as 05.4.1957, which bears his signature. In his application Ex.RW-1/A the respondent No, 1 particularized himself as Muhammad ljaz Chaudhry, whereas in the Secondary School certificate Ex. RW1/P his name stands mentioned as ljaz Ahmad. It is correct that web site of HEC contains mandatory documents for attestation. The approved policy on web site contains a note that name of applicant (student) must be the same throughout in his educational testimonials such as matriculation, intermediate, bachelor and masters onwards to PHD degrees as well as on computerized NIC card/passport, otherwise the testimonials would not be attested by the HEC".
' Keeping in view, the above-said state of record it can be safely concluded that Muhammad ljaz Ahmed Chaudhary (returned candidate) s/o Haji Chaudhary with date of birth as 05.4.1957 used the matriculation certificate, Ex.RW-1/P of one ljaz Ahmed s/o Haji Ahmed with date of birth as 01.3.1960. It is a matter of record that the Secondary School Certificate holder was not even name sake of the returned candidate. The available record does not tell as to what was the motive and consideration, which drove the University Grants Commission and the Higher Education Commission of Pakistan to accommodate the returned candidate out of the way in violation of its own approved policy. The way HEC acted as agent of the returned candidate contrary to its approved policy and offensive to the record, provides a basis to say that the consideration was unholy.
10. The Director General Accreditation & Attestation, HEC (RW-1) produced the original file containing contradictory letters qua the degree/diploma in question, which have already been mentioned in the preceding paragraphs. A bare perusal of the above-said letters would show that at one time the degree was found as fake and bogus but in the same breath it was declared as valid. The Director General Accreditation & Attestation, HEC admitted on cross-examination that the HEC conveyed confirmation of the degree in question to the returned candidate on the basis of letter, Ex.RW-1/E only. In other words, decision by the HEC in favour of the returned candidate is not based on its approved policy. Without any fear of contradiction I would say that the letter, Ex.RW-1/E dated 22.4.2003 allegedly issued by the Quezon College of Philippines to the HEC of Pakistan did not provide a legal basis to accept the degree in question as equivalent to the corresponding degree from Pakistan. It is painful to note that the original file produced by the Director General Accreditation & Attestation, HEC was silent about the mode and manner in which the above-said contradictory letters had allegedly been received by the HEC from Quezon College of Philippines.
On cross-examination, the Director General Accreditation & Attestation, HEC expressed his inability to tell as to how and in what mode and manner the above-said contradictory letters had been received by the HEC. RW-1 was unable to disclose as to whether the letters were received by hand or by post. If the said contradictory letters and the statement of the Director General Accreditation & Attestation, HEC are read/examined together, it cannot be said with certainty as to whether the letters in question were inserted in the file with the active support of its custodian or were received by the HEC through any other mode. In view of the above-said state of record, it was must for the HEC to follow its approved policy instead of granting equivalence to the degree in question on the basis of letter, Ex.RW-1/E, which should have been ignored being violative of the requirements of Article 89(5) of the Qanoon-e-Shahadat Order. It is evident from a bare perusal of Article 89(5) ibid that the letter in question, Ex.RW-1/E does not qualify the legal test, hence, it should not have been made the basis of equivalence certificate. Learned counsel for the returned candidate has attempted to argue that the letter, Ex.RW-1/E and other letters were adduced in evidence, therefore, the same cannot be discarded. I am not in agreement with the argument. The mere fact that the above-said letters were admitted in evidence would not mean that their evidential value and worth enhanced automatically. The contradictory letters, which do not qualify the legal test laid down by Article 89(5) of the Order are not worthy of credence. I, therefore, exclude them from consideration. After discarding the above-said contradictory letters, the Authentication Certificate dated 18.9.2003, Ex.P-4, Certification dated 16.9.2013, Ex.P-5 and letter dated 11.9.2013 by the Quezon College of Philippines, Ex.P-6 remain in field. These are the only documents, which have been adduced in evidence after having complied with the requirements of Article 89(5) of the Order. By means of letter, Ex.P-6 the Registrar, Quezon College Philippines confirmed as under:--- ' I write in response your letter dated September 05, 2013 querying the authenticity of records of Mr. Muhammad Ajaz A. Chaudhary. You have sent a photo-copy of a Diploma, a letter from the late registrar of his institution, Mr. Eduardo V. Quezon, stating that the mentioned person has not completed his academic requirements, and a letter from the former Regional Director of the Commission on Higher Education Carmen V. Dormitorio, Ph.D. CESO III stating that the request for his special order has been cancelled.
' Please be informed that this institution has no record on file for Mr. Muhammad Ajaz A. Chaudhary.
The special Order Number (B)R-XII-50-340107-1948 series of 2002 specified in the photo-copy of the Diploma you furnished us invalid for the July 24, 2002 batch of graduates.
' The Commission on Higher Education, Philippines also endorsed the Ex.P-6 in the following words:- -- ' This is to certify that the special Order No, (B) R-XII-50-340101-1948 series of 2002, dated July 24, 2002 issued to Mr. Mohammad Ajaz A. Chaudhary by this office was cancelled on July 26, 2002.
' Further, the attached Diploma of the said student issued by Quezon Colleges of Southern Philippines dated March 25, 1999 is invalid and not authentic.
' Attached herewith are the letter of Carmen V. Dormitorio, Ph.D., CESO III, Director IV dated November 25, 2002 and certification from Quezon Colleges of Southern 'Philippines, Tacurong Citysigned by Miss Loraine G. Quezon dated September 11, 2013.
' This certification is issued for whatever legal purpose it may be served him best.
' Done this 16th day of September, 2013 in the city of Koronadal.
' The genuineness/correctness of the documents Ex.P-5 and Ex.P-6 reproduced above was authenticated by the Department of Foreign Affairs, Manila Philippines vide Authentication Certificate, Ex.P-4. The Embassy of Pakistan, Manila and the Protocol Officer, Ministry of Foreign Affairs, camp office Lahore also attested the Authentication Certificate, Ex.P-4. On the basis of the documents, Ex.P-4, Ex.P-5. And Ex.P-6 it can be safely concluded that the degree/diploma of the returned candidate is fake and bogus and that he fabricated or got fabricated the letters, Ex.RW1/B; Ex.RW-1/F; Ex.RW-1/L; Ex.RW-13/4 and Ex.RW-1/E with the active support of the HEC, which was at his disposal unfortunately.
12. The Director General Accreditation & Attestation, HEC got examined by the returned candidate as his witness, stated that institutional sanctity of the Higher Education Commission of Pakistan had been adversely affected for having received contradictory confirmation letters from Quezon College Philippines regarding the degree/diploma of the returned candidate. I am not in agreement with the Director General Accreditation & Attestation, HEC. The institutional prestige and dignity of HEC stood tarnished when the concerned officers of the HEC chose for some consideration extraneous to the record to leave the functions and duties of the HEC to the judgment and mercy of the returned candidate. The HEC ignored its own approved policy while rewarding the returned candidate with the equivalence certificate. The prestige of prestigious institution of the country (HEC) was put at stake when Muhammad ljaz Ahmed Chaudhary (returned candidate) s/o Haji Chadhary with date of birth as 05.4.1957 was allowed by the HEC to use and place reliance on the matriculation certificate of one ljaz Ahmed s/o Haji Ahmed with date of birth as 01.3.1960. After mortgaging its duties and functions to the returned candidate, it does not lie in the mouth of the Director General Accreditation & Attestation, HEC (RW-1) to say that contradictory confirmation letters by Quezon College affected institutional sanctity of the HEC.
13. In his nomination papers, Ex.P-1 and Ex.P-2 submitted by the returned candidate to contest the General Elections-2013 he claimed to be B.Sc. On the basis of aforesaid degree, under challenge. At trial of the previous election petition, arising out of General Elections-2002, the returned candidate submitted his written statement, Ex.RW13/12 wherein he claimed for the first time that he did post- graduation in Business Administration. To a question, the returned candidate could not tell as to whether he did post-graduation from Pakistani University or Foreign University, he could not name any University from where he did post-graduation. On conclusion of trial of election dispute, the matter was fixed for final arguments when the returned candidate made an application for additional evidence seeking permission to produce copy of degree of MBA, copy Of certificate of MBA allegedly issued by AGUSON Institute of Technology, Philippines and copy of certificate dated 04.3.2014 statedly issued by Registrar, Quezon College of Philippines. Unattested photo-static copies of the above-said documents were attached with the application. It was contended that MBA degree was awarded to the returned candidate on 24.3.2004 by the AGUSON Institute of Technology/Philippines. The returned candidate entered the witness-box before this Tribunal as RW-13 on 19.2.2014 when he was not in a position to tell as to whether he did MBA from Pakistani University or Foreign University. Within 21 days of his statement the returned candidate forged or got fabricated the MBA degree and other relevant certificates in the name of Foreign Institute of Philippines. The fabrication of MBA degree by the returned candidate has conclusively established beyond any reasonable doubt that he fabricated or got fabricated the B.Sc. Degree on the basis of which he contested the previous General Elections as well as the election in question. How can I allow the returned candidate to produce photo-static copy of MBA degree of Philippines dated 24.3.2004 in additional evidence when he himself was not in a position to tell the name of the degree granting University while making his statement on oath on 19.2.2014. Hence, the application is dismissed.
14. The returned candidate claimed that he obtained Bachelor of Science degree in Commerce Major in Business Administration from Quezon College, Philippines. Later on, he attempted to produce MBA degree, which was allegedly awarded by another Foreign Institution. At trial of this election dispute, the learned counsel for the petitioner put certain questions to the returned candidate to test his mental faculty when he stated as under:- "Negotiable instrument means complete knowledge of the subject which is going to be negotiated with anyone."
' The above-said answer of the returned candidate provides a basis to say that he does not know ABC of Science in Commerce Major in Business Administration.
15. For the aforesaid reasons, I conclude that the returned candidate is not even a matriculate.
Unfortunately he succeeded to cheat the Returning Officers and the electors of the constituency during the previous elections as well as the election in question. I am pained to say that the Higher Education Commission of Pakistan contributed towards this fraud and thus lowered its Institutional status.
16. Another allegation against qualification of the returned candidate was that he got allotted a plot measuring seven marlas located in Chak No, 16, District Mandi Bahauddin under the Jinnah Abadi Scheme launched for landless people. Instead of examining the oral counterclaims put forward by the parties, I would like to resolve this controversy in the light of revenue record. By means of mutation No, 929, dated 15.9.1989 (Ex.P-9) seven marlas plot No, 181 situate in Chak No, 16, District Mandi Bahauddin was allotted and muteded in favour of the returned candidate. The allotment of seven marlas plot was given effect to in the Register Haqdaran-e-Zameen (Ex.P10)
Chak No, 16, District Mandi Bahauddin. It has come in evidence that at the time of scrutiny of nomination papers, an objection was raised before the Returning Officer against candidature of the returned candidate on the ground that he got allotted seven marlas plot under Jinnah Abadi Scheme launched by the Provincial Government for shelter less and landless people. The objection did not find favour with the RO and resultantly, the nomination papers filed by the returned candidate were accepted. On 10.4.2013, the returned candidate made an application before the Additional District Collector, Mandi Bahauddin, for deletion of his name from the revenue record on the ground that the entry in question had been made wrongly and that he learnt about the same for the first time at the time of scrutiny of his nomination papers. The Additional District Collector, Mandi Bahauddin allowed the request of the returned candidate. Resultantly, the entries with regard to allotment of seven marlas plot were struck out from the record-of-rights. The petitioner challenged the order of Additional District Collector, Mandi Bahauddin before the Revisional Court, but unsuccessfully. The petitioner has stated that he filed a writ petition against the aforesaid orders of the Revenue CoUrts, which is still pending. When confronted with the above-said state of Revenue Record, learned counsel for the returned candidate contended that the judgments passed by the Additional District Collector, Mandi Bahauddin and the Additional Commissioner, Gujranwala striking out the name of the returned candidate from the Revenue Record absolved him of the allegation that he got allotted plot under Jinnah Abadi Scheme. While conducting trial of this election dispute under the special law, I am not supposed to sit in appeal against the orders of the Additional District Collector, Mandi Bahauddin and the Additional Commissioner, Gujranwala, referred to above. I would like to examine this issue with a different angle because the Election Tribunal is not bound to accept and believe the orders of Revenue Authorities mechanically and blindly. It is a matter of record and is not disputable that seven marlas plot situated in Chak No, 16, District Mandi Bahauddin was allotted to the returned candidate by the Assistant Commissioner/Sub-Divisional Collector in the year 1988. The allotment was incorporated in the Revenue Record vide mutation No 929, dated 15.9.1989 (Ex.P-9). Copy of Register Haqdaran-e- Zameen for the year 2009-2010 (Ex.P-10) would show that name of the returned candidate stands recorded as allottee of plot No,
181. The entry of allotment of five marlas plot in the name of the returned candidate remained intact for 25/26 years. This is an established principle of law that long standing entries of record-of-rights (Register Haqdaran-e-Zameen or Missal-e-Hakiyat) cannot be modified and corrected by the Revenue Officers. The returned candidate with a motive to nullify the ground of attack against his qualification invoked indulgence of the Revenue Officers and got deleted 25/26 years old entries of the record-of-rights on the basis of self-assertion that the entries had been made wrongly. The returned candidate is Lumberdar of Chak No, 16, District Mandi Bahauddin. He is/was sitting MNA of the area. How can I believe that seven marlas plot was allotted to him by the Sub Divisional Collector without his consent and knowledge. It does not appeal to reason that the village Lumberdar and MNA of the area remained ignorant about the entries of allotment in his favour for about 25/26 years. The returned candidate himself mentioned in the application laid before the Additional District Collector, Mandi Bahauddin seeking correction of the entries that he learnt about the allotment at the time of scrutiny of his nomination papers.
Hence, it was not difficult for the Revenue Authorities to understand that the application for correction of 26 years old entries of record-of-rights was politically motivated. It was a case of 26 years old long standing entries of record-of-rights versus self-assertion of the returned candidate.
The Revenue Authorities chose to accept the self-assertion of the returned candidate and struck out the long standing entries of record of-rights with a stroke of pen. I am not unmindful of the fact that the Election Tribunal is not the Appellate or Revisional forum for the above-said revenue dispute. I am fully justified to take cognizance of the revenue dispute as it relates to the question of qualification or disqualification of the returned candidate, which is under trial before the Election Tribunal. I have gone through the relevant provisions of the Land Revenue Act, 1967. Within a period of 26 years, six Jamabandies' must have been prepared for the revenue estate, Chak No, 16, District Mandl Bahhauddin in terms of Section 39 of the Land Revenue Act, 1967. If the provisions of Sections 39 and 52 of the Act, 1967 are read together, it can be safely said that strong presumption of truth was attached to the 26 years old entries of the mutation and the record-of-rights. On the basis of self-assertion by the returned candidate, the long standing entries were deleted from the record- of-rights arbitrarily and in utter disregard of the provisions of Land Revenue Act, 1967 and the instructions contained in Land Record Manual. The way the Revenue Officers submitted before the desire of the returned candidate over and above the law is not acceptable to the Election Tribunal while deciding the controversy with regard to the qualification of the returned candidate. For what has been stated above, I would conclude that the orders passed by the Revenue Authorities are nullity in the eyes of law to the extent of the election dispute under trial.
17. The returned candidate is village Lumberdar of Chak No, 16, District Mandl Bahauddin. At trial of this election petition, the returned candidate (RW-13) stated that he established business in Pakistan, Philippines, Malaysia, Kuwait and other countries, which flourished. The returned candidate, who happens to be billionaires got allotted seven marlas plot in his residential Chak No, 16 under Jinnah Abadi Scheme launched by the Provincial Government for the shelterless and landless people of the area Sensing an adverse order touching his qualification, the returned candidate hired the services of Revenue Officers and got deleted 26 years old entries of record-of- rights. The Revenue Officers allowed his request without any basis and without taking into consideration Section 52 of the Land Revenue Act, 1967. It appears that the Revenue Officers were not strong minded and capable to resist the pressure and that is why they discarded 26 years old entries of the record-of-rights by means of foolish orders offensive to the land laws.
18. In my judgment, the concerned officers of Higher Education Commission of Pakistan and the Revenue Officers of Mandi Bahauddin/Gujranwala failed to discharge the obligations cast on them by the law. Unfortunately, they acted like agents of the returned candidate. Before the last word, I fall short of English words to describe perversity of their decisions, which facilitated the returned candidate to cheat the system and the electors of his constituency. Hence, I quote Urdu verse to depict the state of affairs, which played havoc with the system.
19. And now the last word, the returned candidate was not qualified to be elected or chosen as a Member of Parliament as he was/is not sagacious, righteous, non-profligate, honest and Ameen in terms of Article 62(f) of the Constitution. Consequently, I declare the election of the returned candidate as void with an observation that on the nomination day, he was not qualified for being elected as a Member of the Parliament. The Election Commission of Pakistan shall take necessary legal steps for holding bye-election from constituency No, NA-108, Mandi Bahauddin-I, in accordance with law.
20. The returned candidate shall pay the cost of election petition to the petitioner as determined and mentioned in the memo of cost. Election .