' SHAHID JAMIL KHAN, J. This petition is against order dated 06.04.2013 passed by (Respondent No. 2)
Election Commission of Pakistan ("ECP"). ECP has directed Regional Election Commission to file complaint against the petitioner before Sessions Judge, after holding that petitioner posed herself as graduate on the basis of a fake degree.
' The petition is saddled with two grounds; first that ECP had no power to review,. Its earlier order dated 15.05.2011 and second that findings about fake degree were given in ignorance of fact that petitioner's degree of Bachelor in Business Administration ("BBA") issued by Preston Institute Management, Science and Technology, Karachi, Pakistan ("PIMSAT") was verified by the ECP during earlier proceedings.
2. Facts briefly are that petitioner filed nomination papers, on 26.11.2007, against Reserved Seat of Punjab Provincial Assembly for Women, claiming herself to be graduate. She was notified as Member of Provincial Assembly ("MPA") in 2008. However, she resigned from the seat, assertively for some domestic reasons, which was' accepted vide notification dated 31.08.2010. Hon'ble Supreme Court of Pakistan recommended, through its judgment in Muhammad Rizwan Gill v. Nadia Aziz and others (PLD 2010 SC 828), for action against members of legislative assemblies, who were elected on the basis of fake or forged degrees. Petitioner was served with a notice by ECP, which was followed by its earlier order dated 15.01.2011, whereby investigation/inquiry against her was dropped and her name was not recommended for prosecution. Petitioner was served with another notice by ECP, on the basis of apex Court's judgment in Mian Naje eb-ud-Din Owasi, etc. v. Amir Yar Waran, etc. (Civil Miscellaneous Application No. 1712 of 2013 in Civil Appeal Nos. 191-L & 409 of 2010). After providing opportunity of being heard, petitioner's case was recommended for filing complaint 'against her through impugned order dated 06.04.2013.
3.. Learned counsel for the petitioner submits that earlier decision by ECP could not be reviewed on the pretext of subsequent judgment by Hon'ble Supreme Court (Mian Najeeb-ud-Din Owasi's Case). Further submits that ECP has no power to review its own order. He has placed reliance on a judgment by Division Bench of this Court in Election Appeal No. 298-R of 2013 dated 15.04.2013. On merits, it is argued that degree issued by Hajveri University had wrongly been attributed to the petitioner. Explains that in presence of genuine degree by PIMSAT, obtained in 2005 and verified by ECP, it could not be presumed that petitioner had appended the fake degree with her nomination papers.
4. These arguments are controverted by learned counsel for respondents No. 2 and 3 and learned Standing Counsel appearing on behalf of respondent No.
1. It is argued that the degree issued by PIMSAT was never got verified by ECP, however, a verification certificate was produced by the petitioner herself. Submits that degree of Hajveri University was got verified by ECP from Higher Education, Commission, which was declared as fake.
Further submits that earlier order was passed by the Chief Election Commissioner whereas under the subsequent judgment by apex Court, investigation was to be conducted by the Commission consisting of all the members. Adds that case was reopened on the directions by Hon'ble Supreme Court of Pakistan in Man Najeeb-ud-Din Owasi's Case Concludes that ECP's order cannot be called in question before any Court including this Court in writ jurisdiction.
5. Head both the parties, record perused.
6 Judgments by Hon'ble Supreme Court of Pakistan in Muhammad Rizwan Gill's Case and Mien Najeeb-ud-Din Owasi's case (supra) are examined in light of rival arguments and facts of the case.
Relevant excerpts from both the judgments are reproduced for Muhammad ,'"Rizwan Gill's Case. {{word miss}} Sessions Judges to whom these trials shall then be entrusted, are also directed to conclude the same without any delay, in consonance with the spirit of the Elections laws as displayed, inter alia, by the Provisos newly- added to sub-section (1-A) of Section 67 of the said Act of 1976 through the Amending Act No. IV of 2009 promulgated on 2.11.2009. In any case, it should not take each learned Sessions Judge who gets seized of the matter, more than three months to conclude the same."
[emphasis supplied] ' Mian Najeeb-ud-Din Owasi's Case.
"6. The Secretary, ECP, has submitted a compliance report (CMA 1713/2013) in which he has also furnished details of 27 cases, which have been closed. Relevant para there from is reproduced herein below:---
(a) HEC subsequently declared 07 the degree genuine
(b) University subsequently 02 declared the degree genuine
(c) Period of limitation (for 03 Senators) was elapsed
(d) Elected after condition of 04 degree was lifted
(e) Closed due to death of 02 respondents
(f) Closed pursuant to the 03 decisions f SCP/HC/CC
(g) Closed due in resignation of 02 respondents
(h) Closed on different grounds 04
9. We have no objection on the decision of ECP, falling under categories A & B. But as categories C to H are concerned, we may observe that for declaring a person to be disqualified, no period of limitation; as pointed out, would be relevant because such disqualification, was suffered at the time when he filed the nomination papers by making a declaration, while having a fake degree in his hand, therefore, in such cases, no time period can be prescribed.
' As far as the remaining cases are concerned, except the case where the death of the Parliamentarians has taken place, those have to be dealt with in accordance with law and the observations made herein above."
'[emphasis supplied] ' Examination of both the operative paragraphs, from the referred judgments, shows that in Muhammad Rizwan Gill's Case it was directed to take action, by conducting investigation, against those Parliamentarians, who forged and presented documents, regarding their qualification, or had use such documents knowingly or at least had reasons to believe that such documents were forged. Such investigation was to be supervised by a senior officer of ECP. On collecting any evidence regarding use of forged documents, in the manner noted ibid, a complaint was to be filed before the Sessions Judge for proceeding in accordance with law, The Sessions Judge was directed to conclude trials efficiently, without any delay and in accordance with Election Laws.
' In Najeeb-ud-Din Owasi's Case; a compliance report was submitted. Wherein 27 cases were reported to be closed. Hon'ble Court observed that Parliamentarians were suffering from the disqualification at the time of filing nomination papers, therefore, no time period could be prescribed for initiating action against them. Petitioner's case fell under category "g" i.e., "closed due to resignation of respondents", therefore, it was recommended- to be dealt in accordance with law.
7. Examination of impugned order, under the facts and in light of apex Court's observations, shows that ECP did not understand the spirit of the directions. Members of the Commission, instead of collecting evidence of using forged document, embarked upon to give a judicial find, for which they were not mandated, either by Hon'ble Court or any law. They have not collected any evidence to make out a case to file complaint before relevant Sessions Judge. Instead, they have unsuccessfully endeavoured to prove the defence of petitioner, before them, as wrong. Petitioner's stance that she simply declared herself as BBA, without appending copy of degree was brushed aside on presumptions. Her assertion, that she hada genuine degree from PIMSAT since 2005, was denied on surmises. The assertion appeals to mind that why would petitioner use a fake degree when she had a valid degree issued in the year 2005. On this assertion, it was incumbent upon the ECP to verify from PIMSAT regarding genuineness and date of the degree. Findings of fact in the impugned order, in absence of such exercise, are against the direction by the Apex Court and are not based on any triable evidence against the petitioner. Findings in the impugned order, have otherwise left very little room for the Sessions Judge to conduct a free and fair trial, therefore, the impugned order cannot be termed as an investigation as directed by Hon'ble Supreme Court in Muhammad Rizwan Gill's Case. Had Hon'ble Court intended to send every case for prosecution, there was no occasion to ask ECP to conduct an investigation.
8. Argument by learned counsel for the respondents that complaint was to be filed by ECP (consisting of all the members) and not by its Chairman alone, has no force. Hon'ble Supreme Court of Pakistan in another decision, Mian Najibuddin Owaisi v. Aamir Yar and others (PLD 2011 SC 01), has answered this controversy in following words:- "9. Thus, a comparative study of both the above-noted Sections 94 and 95 of the Act, 1976 would indicate that there is no bar in lodging the complaint either by the Commission or by the Commissioner and by an individual in respect of offences made cognizable under Section 82 of the Act. Therefore, in view of the above provisions of law it is clarified that the Chief Election Commissioner (the Commissioner) or the Commission both are competent to lodge the complaint notwithstanding the observation made in the judgments passed by this Court noted hereinabove.
Having made the clarification hereinabove, it is further clarified as regards Sections 94 and 95 of the Act, 1976 that for the purpose of Section 78(3)(d) notwithstanding the Commission or the Election Commissioner' or any individual or any other person can lodge the complaint. The application stands deposed of in above terms."
' Use of a forged document, to claim an educational qualification, falls with the definition of "Corrupt Practice" under Section 78(3)(d) of Representation of the People Act, 1976 ("The Act of 1976"). Penalty for Corrupt Practice is provided under its Section 82. An offence punishable under Section 82 is cognizable under Section 94 (1) of the Act of 1976. This offence is triable by Sessions Judge under subsection (2) of Section 94. Sub-section (3) of Section 94 has dealt with complaint by a private individual. If proceedings, for being involved in Corrupt Practice, are initiated on complaint of a private individual and conviction is maintained in final appeal, the private individual is entitled to a reward out of fine imposed by the Court. Where such complaint proves to be false or male fide, such private individual shall be punishable with imprisonment and fine.
9. It may be summed up that complaint against Corrupt Practice of using forged document to claim an educational qualification can file even by a private person. Nevertheless, Hon'ble Supreme Court directed ECP to investigate the matter first. The intention would be to avert uncalled for proceedings against a Parliamentarian. Even law, discussed supra, has envisaged punishment for a private individual who lodges a false or male fide complaint. In this backdrop; ECP was neither directed nor has jurisdiction to sit as adjudicating authority and give finding of fact, as is done in the impugned order. ECP was required to hold an investigation and file complaint on the basis of positive and tangible evidence.
' For the reasons noted and discussion made, supra, the impugned order is declared to have been passed in excess of the mandate given by Apex Court and against the spirit of law. Being passed without jurisdiction, it is held nullity in the eye of law. Petition is allowed.