MUHAMMAD KHALID MEHMOOD KHAN, J.---The respondent No.1 is an elected Member of Punjab Provincial Assembly from Constituency PP-78 Jhang VI elected in General Election held on February 18, 2008. The petitioners 'being the registered voters of Constituency PP-78 Jhang VI filed the constitutional petition under Article 199(1)(b)(ii) of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") praying to the Court, to enquire from respondent No.1 under what authority of Law respondent No.1 is holding the membership of Provincial Assembly of Punjab when he is not graduate.
2. The petitioners asserted that respondent No.1 is not holding graduation degree and the degree claimed by respondent No.1 is fake, bogus and forged one, the name of respondent No. 1 's father is Muhammad Fazil, the respondent No.1 with the connivance and collusion of respondents Nos.3 and 4 has managed to change the entries of educational record of one Khalid Mehmood son of Muhammad Fazal, the respondent No.1 never appeared in examination of Intermediate nor he is a graduate, the respondent No.1 is using the Intermediate Certificate and degree of graduation of one Khalid Mehmood son of Muhammad Fazal. He with the help of Punjab University employees has changed the name of Muhammad Fazal with Muhammad Fazil in the graduation degree. The respondent No.1 was admitted in Primary School at Jhang, and then admitted in High School at Sattelite Town Jhang and appeared in the Matriculation Examination in the year 1978 but failed, he arranged a Matriculation Certificate of Khalid Mehmood son of Muhammad Fazal who passed matriculation examination in year 1985 and changed the name of "FAZAL" with "FAZIL", the respondent No.1 never appeared in Intermediate Examination through Lahore Board nor appeared in BA examination, thus the 'respondent No.1 does not hold the required qualification to contest Election in terms of Article 62(1) of the Constitution.
3. The respondents filed reply and written statement.
The respondent No.1 controverted the petitioners' assertions and raised the preliminary objection that petition is not maintainable as the allegations of petitioners require the factual inquiry which could not be undertaken in constitutional jurisdiction of this Court. All the election petitions challenging the respondent No.1 degree have been dismissed; the issue of bogus degree thus is a past and closed transaction. The Writ Petition No.20620 of 2009 on the same allegations has been dismissed on 2-2-2010 and as such the present petition is not maintainable. The University of Punjab owns its Graduation degree, the said degree still holds field; hence the petition is devoid of merit. The petitioners have colluded with officials of respondents Nos. 3 and 4 and have manufactured certain documents which have no concern with the respondent No. 1 . The qualification of Graduation is no more required for contesting the Election; hence the petition is liable to be dismissed. The petition is a mala fide act of the petitioner and has been designed only to blackmail the respondent No.1. The Controller of Examination of University of Punjab appeared in election petition and confirmed the genuineness of the respondent No.l's graduation degree.
The respondent No.3 has submitted its reply and confirmed the genuineness of the respondent No.1's degree.
The respondent No.4 Board of Intermediate and Secondary Education, Lahore (hereinafter referred to as "Lahore Board") filed reply and submitted that respondent No.1 appeared in Intermediate Examination in the year 1987 (autumn) and passed the examination securing 585/1100-marks.
The respondent No.5 Board .of Intermediate and Secondary Education Sargodha (hereinafter referred to as the "Sargodha Board") has filed the reply and stated that the respondent No.1 appeared in Matriculation Examination but failed in five subjects, the certificate claimed by the respondent No.1 is of one Khalid Mehmood son of Muhammad Fazal who appeared in the Matriculation Examination in 1985 and passed the Matriculation Examination by securing 627- marks, the Sargodha Board has issued notice to respondent No.1 for surrendering the original certificate for initiating the inquiry.
The respondent No.6 filed the reply and submitted the details of respondent No. 1 's particulars for the period when he remained the student of said School.
The respondent No.7 filed reply and produced the particulars of respondent No.1 during his stay with the said College.
4. Learned counsel for petitioner argues with vehemence that under Article 62 (f) of the Constitution, it is the respondent No.1 who has to prove his qualification and on his failure to prove the said fact, the respondent No.1 automatically becomes disqualified.
Learned counsel in support of his contentions has relied on Nawabzada Iftikhar Ahmad Khan Bar v.
Chief Election Commissioner Islam Abad and other (PLD 2010 SC 817), Mian Muhammad Shahbaz Sharif v. Ch. Muhammad Altaf Hussain, Governor of Punjab, Lahore and two others (PLD 1995 Lahore 541), Haji Nasir Mehmood v. Mian Imran Masood and others (PLD 2010 SC 1089), Mudassar Qayum Nahra v. Ch. Bilal Ijaz and others (2011 SCMR 80), Sardar Asmatullah Khan v. Maulvi Muhammad Samar and others (2011 SCMR 107), Mian Najeeb ud Din. Owaisi v. Aamir Yar and 7 others (2011 SCMR 180), Khalifa Muhammad Munawar Butt and another v. Hafiz Muhammad. Jamil Nasir and others (2008 SCMR 504), Dr. Mubashar Hussain and others v. Federation of Pakistan and others (PLD 2010 SC 265), Malik Saleh Muhammad Junjial v. Kamran Elahi Bandial (2008 SCMR 1), Imtiaz Ahmed Lali v. Ghulam Muhammad Lali (PLD 2007 SC 369), Khalid Rashid v. Kamaran Lashari, Chairman C.D.A., Islamabad and others (2010 SCMR 594), Pakistan Tobacco Board and another v.
Tahir Raza and others (2007 SCMR 97), Mian Rauf ud Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others (PLD 1971 SC 252), Hassan and others v. Fancy Foundation (PLD 1975 SC 1), Imtiaz Ahmad Lali v. Returning Officer and 3 others (PLD 2008 SC 355), Ch. Muhammad Arif Hussain v. Rao Sikandar lqbal and 10 other'(PLD 2008 SC 429), Syed Nayyar Hussain Bukhari v. District Returning Officer, NA-49, Islamabad and others (PLD 2008 SC 487), Ardeshir Cowasjee and others v. Karachi Building Control Authority and others (PLD 2004 SC 70), Muhammad Aslam Bhotani v. Election Tribunal and 2 others (PLD 2003 Quetta 94), Messrs Ansari Sugar Mills Ltd. v. Commissioner of Income Tax, Karachi (2010 PTD 755), Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4 others (PLD 1985 SC 376), Boora and 2 others v. Divisional Canal Officer and another (1984 CLC 364), Karachi Watch v. Imran Fasihi and another (2008 CLC 222), Hakim Ali Zardari v. The State and another (PLD 1998 SC 1), Adnan Afzal v. Capt. Sher Afzal (PLD 1969 SC 187), Jannat ul Haq and 2 others v. Abbas Khan and 8 others (2001 SCMR 1073), Muhammad Arif and another v. The State and another (1993 SCMR 1589), Taza Khan and others v Ahmad Khan and others (1992 SCMR 1371), Government of Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others ( 1992 SCMR 602), Shahid Nabi Malik and another v. Chief Election Commissioner Islamabad and 7 others (PLD 1997 SC 32), Pakistan Lawyers Forum through General Secretary v.
Federation of Pakistan, Ministry of Law and Justice Parliamentary Affairs and Human Rights, Islamabad and another (PLD 2011 Lahore 382).
5. Learned counsel for the respondent No.1 submits that the petition is not maintainable; the petitioners have raised the factual controversy which could not be resolved in the constitutional petition. The rival candidates have filed election petitions against the respondent No.1 and the learned Election Tribunal after recording the evidence has dismissed the election petitions, the issue of bogus or fake degree thus is a past and closed transaction. The writ petition No.20620/09 on the same allegations has been dismissed on 2-2-2010 and such the present petition is not maintainable. Lahore Board and the University of Punjab owns their Intermediate Certificate and Graduation Degree, both the issuers of the certificate and degree have not cancelled their documents and as such till the cancellation of these, documents the petition is not maintainable.
Learned counsel argued with vehemence that petitioners have colluded with the officials of respondents Nos. 5 to 7 and have manufactured certain documents which have no concern with the respondent No.'1. Learned Counsel adds that qualification of graduation is no more required for contesting the election, hence the petition is liable to be dismissed on this score alone. Learned counsel has relied on the statement of Controller Examination University of Punjab as P. W.1 of Election Petition No.244/2008 and contends that after the confirmation of P.W.1 the petition could not proceed and is liable to be dismissed with special costs.
Learned counsel in support of his arguments has relied on Zaheer ul Hassan and another v.
Pakistan Postal Office through Post Master General, Lahore and 2 other (2004 PLC (CS) 369), Dr.Kamal Hussain and 7 others v. Muhammad Sirajul Islam and others (PLD 1969 SC 42), Mst. Kaniz Fatima through legal heirs v. Muhammad Salim and 27 others (2001 SCMR 1493), Muhammad Safdar Abbasi v. Aamir Yar Malik and 3 others (2004 SCMR 1602), Shama, ul Haq v. Returning Officer/Additional District Judge and 9 others (2004 MLD 1365), Election Commission of Pakistan through its Secretary v. Javaid Hashmi and others (PLD 1989 SC 396), Raja Muhammad Nasir v.
Chairman (2009 CLR 327), Makhdoom Ghulam, Ali Shah v. Election Commission of Pakistan, Islamabad thorugh Secretary and 4 others (2008 CLC 738), Muhammad Liaquat Mimi,. Rao v.
Shams ud Din and others (2004 PLC (CS) 1328), Province of Punjab through Chief Secretary and 5 others v. Malik Ibrahim and sons and another (2000 SCMR 1172) and Shah Wali and others v.
Ferozuddin and others (2000 SCMR 718).
6. Heard, record perused.
7. The first argument of learned counsel for respondent No.1 is that petitioners' allegations require factual inquiry and this Court in its constitutional jurisdiction could not hold the factual inquiry. The argument of learned counsel has force, but where the facts are admitted and 'clear, this Court in its constitutional jurisdiction has the jurisdiction to take cognizance and resolve the dispute. Now it has to be seen, which are the allegations of petitioners and which are admitted facts between the parties.
8. The allegation of petitioners is that respondent No.1 is not graduate and the respondent No.1 's claim is that he passed his matriculation in 1985 (spring) under Roll No.13130 from Sargodha Board, he then appeared in Intermediate Examination 1987 (annual) from Lahore Board as private candidate under Roll No.36466 but failed in one subject of Health and Physical Education. After that he appeared in Intermediate Examination in 1987 (autumn) under Roll No.18932 and secured 585/1100-marks. He completed his graduation from University of Punjab in educational Session 1990-91 but the Punjab University issued the original degree in 2002 due to their internal miss- management.
9. The reply and documents produced by respondent No.6 shows that the respondent No.1 started his primary education from. Primary School at Ghaziabad Jhang, where he was admitted on 25-4- 1968 and he left the Primary School on 31-3-1972 as per School Leaving Certificate, the respondent No.1 then admitted in Government Comprehensive High School Jhang in 6th Class on 8-5-1972 and remained there up to 1978, the respondent No.1 appeared in Matriculation Examination from Sargodha Board as regular student in the year 1978 (annual) but failed in five subjects. The respondent No.5 in its reply confirmed the said facts and stated with documents that "the respondent No.1 namely Khalid Mehmood got admission in Government Comprehensive High School Jhang vide Registration No.1216 dated 8-4-1976 and left the school on 31-3-1978. Later on, he appeared in Matric Examination under Roll No.76457 in Spring 1978 Examination in Sargodha Board and failed in the subject of Islamic Studies, Elective Mathematics, Physics, Chemistry and Biology.
10. The respondent No.1 has never appeared in the claimed Matriculation Examination held in Spring 1985 by Sargodha Board nor Roll No.13130 was ever issued to him. It is pertinent to mention here that. Roll No.13130 was issued to one Khalid Mehmood son of Muhammad Fazal, whereas, the respondent No.1 somehow managed to procure the degree in fact issued to the said Khalid Mehmood son of Muhammad Fazal who by mistake was shown fail in Elective Mathematics as per Gazette Notification 1985 Volume-I due to some clerical error but actually Khalid Mehmood passed his Matric Exams in "A" grade and obtained 627 marks, and the mistake was corrected in Gazette Notification 1985, Volume-II.
11. The petitioners in para Nos. 14 and 15 of the petition averred as under:-- "14. That according to the private investigation conducted by the petitioners, the actual position is that respondent ,No.1 got admitted in 9th class in Government Comprehensive High School Jhang vide admission No.1216 dated 8-4-1976 and got (sic) from the Matric examination on 31-3-1978. His date of birth mentioned in the said school record is 1-1-1963. He appeared in matric examination under Roll No.76457 in Spring 1978 examination in Sargodha Board and got failed in Islamiyat, Elective Mathematics, Physics, Chemistry and Biology.
The petitioner has also managed to procure the record of Government Ghazali College Jhang of Session 1982-1984. Respondent No.1 got admitted in said Ghazali College at serial No.34, admission No.1037, Roll No.65 dated 9-9-1982 and the name of Khalid Mehmood son of Mehr Muhammad Fazil Sargana of Mohallah Ghaziabad, Jhang Sardar is mentioned whose date of birth is mentioned as 1- 1-1963.
The ID card No.33202-5705205-9 of respondent No.1 show the name as Khalid Mehmood son of Mehr Muhammad Fazil and the date of birth is mentioned as 1-1-1963 and is resident of House No. 851-P, Mohallah Ghaziabad, Jhang Saddar.
15. That in- the BA Admission Form it is mentioned that respondent No.1 passed in FA in Autumn 1987. In FA Admission Form it is mentioned respondent No.1 passed his Matric under Roll No.13130 in Spring 1985. Ghazali College is totally contradicting and it is* mentioned that respondent No.1 had joined the FA session in year 1982-84. It is not understandable as to how can a Matric student clearing Matric in 1985 sit in. FA session for the you 1982-84."
12. The respondent No.1 replied these averments as under:-- "Para-14: Admitted only to the extent that respondent No.1 got admitted in Government Comprehensive High School Jhang vide admission No.1216 dated 8-4-1976 and left the school on 31-3-1978. He appeared in Matric Examination under Roll No.76457 in Spring 1978 Examination in Sargodha Board and failed in Islamiyat, Elective Mathematics, Physics, Chemistry and Biology.
Whereas, rest of the contents are denied for want of knowledge as the same do not relate to the answering respondent Board.
Para-15: Admitted to the extent that the respondent No.1 never passed his Matric Exams under Roll No.13130 in Spring 1985. Whereas, rest of the contents of this para relate to the respondents No.3, 4, and 7."
13. It is an admitted fact between the parties that respondent No.1 born on 1-1-1963 and he completed his Primary and High School education from District Jhang and his permanent District is JHANG.
14. The perusal of reply of respondent No.1 as per his own statement on oath shows that he even has denied his Primary and High School education at his birth place. As per the details provided by respondent No.6, "the name of respondent No.1 Khalid Mehmood son of Mehar Muhammad Fazil, caste Sargana R/o Mohallah Ghazi Abad, Jhang Saddar" the respondent No.1 was admitted in 6th class in the School on 8-5-1972 under Admission Form No. 896. It is an admitted fact that for getting the Admission in 6th Class the student has to produce his Primary School Certificate, the respondent No.6 produced the record submitted by the respondent No.1 while getting admission in 6th Class, the respondent No.1 's Primary School Leaving Certificates shows that he was admitted in Primary School Ghaziabad Jhang Sadder on 25-4-1968, declared his date of birth as 1-1-1963 and name of his father as Mehar Muhammad Fazil Khan, passed 5th Class and left the Primary School on 31-3-1972, the Admission Register, of respondent No.6 shows that respondent No.1 after five years on 8-4-1976 shifted to Class 9th Section-C. The respondent No.6 submitted his Admission Form to respondent No.5 and the respondent No.1 appeared in Annual Examination 1978 (Spring) in Matriculation Examination from Sargodha Board, he was allotted Roll No. 74457, the Sargodha Board dispatched the result sheet to the respondent No.6 declaring that respondent No.1 was declared fail in five subjects, Islamiat, Elective Math, Physics, Chemistry and Biology. The respondent No.5 in its reply has confirmed the above said particulars and produced the Gazette Notification of respondent No. 1 's matriculation result. In these circumstances it is to be seen when the respondent No.1 was declared fail in 1978, whether he appeared in Supplementary Examination or not? The claim of respondent No.1 is that he passed the Matriculation Examination in the year 1985 from Sargodha Board; hence he admits that he never appeared in supplementary examination after 1978 (spring). The respondent No.1 is not claiming that he is the permanent resident of Toba Tek Singh but the particulars of Khalid Mehmood son of Muhammad Fazal will show that he is the permanent resident of Toba Tek Singh and not District Jhang.
15. The record produced by Sargodha Board shows that candidate who appeared in year 1985 is "Khalid Mehmood son of Muhammad Fazal", the respondent No.6 in its reply confirmed that respondent No.1 only appeared through respondent No.5 as regular Student under Roll No.76457 in 1978 (Spring) (Gazette Notification for the year 1978 (Spring). The unchallenged record produced by respondent No.6 prove that the respondent No.1 born at Jhang completed his education from Jhang and the student who appeared in 1985 through Sargodha Board born in Toba Tek Singh District Faisalabad (Gazette Notification for the year 1985 (Spring). It is also an admitted fact on record that the respondent No.1 has not filed any suit against respondent No.6 for correcting record that he appeared in 1985 in matriculation examination and not in 1978.
16. The claim of respondent No.1 that he passed his Intermediate Examination from Lahore Board is negated from the record produced by respondent No.4, the respondent No.4 produced the Admission Form of Intermediate Examination of Khalid Mehmood son of Muhammad Fazal, examination detailing as under:-- "Name: Khalid Mehmood Father's Name: in the column of UrduMuhammad Fazil In the column of English Muhammad Fazal Registration No 606-P-87 Address: 52-A Block New Muslim Town Lahore Permanent District: Toba Take Singh"
17.On the back of the Admission Form the, respondent No.1 certified as under:-- "The petitioner passed secondary school examination Sargodha Board under Roll Number 13130 two years ago."
18.The said Certificate was attested by a Lecturer of Khanpur. As per record of respondent No.6 the student who appeared in Matriculation Examination having Roll No.13130 is Khalid Mehmood son of Muhammad Fazal permanent resident of District Toba Tek Singh. The Intermediate Certificate issued by the Lahore Board also shows that it was issued to one Khalid Mehmood son of Muhammad Fazal.
19.In the Admission Form of University of the Punjab, the applicant Khalid Mehmood son of Muhammad Fazil is shown his permanent District LAHORE. In result statement produced by the University of Punjab, the name of father of Khalid Mehmood is mentioned as Muhammad Fazal in two places but showing the word Fazal as Fazil, word "a" has been scratched with ink giving the colour of word "a" to "i". It is the claim of respondent No.1 that he passed his Intermediate Examination from Lahore Board and on the basis of said certificate he appeared in BA Examination, so in the University of Punjab record, the name of respondent No.1 's father should have been "Muhammad Fazal" and not "Muhammad "Fazil", the respondent No.1 with the help and connivance of corrupt University employees changed the University Record by scratching the word "a" with "i".
As far as the argument of learned counsel that P.W.1 in election petition has admitted the respondent No.1 degree as correct, the P.W.1 has admitted that Photograph and Copy of Intermediate Certificate is not available in their record, the P.W.1 admitted that concerned clerk may have removed these documents, hence the statement of P.W. could be believed to be true.
20. The record produced by the respondents Nos. 2 to 7 proves that respondent No.1 's name is Khalid Mehmood son of Mehr Muhammad Fazil, he born at Jhang, completed his primary education from Ghaziabad Primary School Jhang, remained High School student in Government Comprehensive High School Jhang, he appeared in Matriculation Examination as regular student of Government Comprehensive High School but remained unsuccessful, the respondent No.1 got admission in Government Ghazali College Jhang and remained the student of said College from 1982 to 1984 but it appears that during that period he was unable to get the Matriculation Certificate from Sargodha Board, he abandoned the said College, the respondent No.1 then with the help and connivance of corrupt employees of Sargodha Board obtained the Matriculation Certificate of one Khalid Mehmood son of Muhammad Fazal permanent resident of District TOBA TEK SINGH and succeeded to change in the Urdu Column of name of student's father as "Muhammad Fazil" but in the English Column he forgot to change the name of "Muhammad Fazal" with "Muhammad Fazil", how it is possible that a person mention his father name in Urdu Column different from English Column. The University's corrupt employees helped the respondent No.1 by changing the name of the applicant's father from Fazal to Fazil. The reply of University of Punjab referred to above is a proven fraudulent how the photograph and Intermediate Certificate of a person is missing from the record. In facts the certificate of Matriculation and Intermediate is of Khalid Mehmood son of Muhammad Fazal who appeared in Matriculation Examination through Sargodha Board being the permanent resident of Toba Tek Singh (District Faisalabad), he also passed his graduation from University, the respondent No.1 failed to pass even his Matriculation Examination. It is very unfortunate that the educational institutions are involved in corruption and corrupt activities but no one is bringing them to justice.
21. The honourable Supreme Court. has held in Muddasar Qavyum Nehra v. Ch. Bilal Ijaz and other (2011 SCMR 80) held as under:--
22. The concepts projected in using all the above terminology is not difficult to understand. It demonstrates a keen desire-of the Constitution that persons desiring to engage themselves in the process of law making for the country must themselves be possessed with High qualities of personal character and moral values. A legislator who indulges into unfair means in earning or procuring his educational documents cannot be termed to be possessing the required standards of high personal characteristics mentioned in clause of Article 62 of the Constitution of Islamic Republic of Pakistan, 1973. Members of the National or Provincial Assemblies on their successful election have been further obliged to take oath as incorporated in the third schedule of the Constitution, with necessary condition of undertaking the performance of the duties and functions honestly in accordance with Constitution. Elected members are further likely to be entrusted with the other high and onerous offices of the Prime. Minister, Federal Ministers, Speaker of the National and Provincial Assemblies, Deputy Speakers of the National and Provincial Assemblies and Chief Ministers of the Provinces. The swearing of solemn oath from such holders of public offices are also prescribed in the Constitution requiring similar performances of duties, and functions with honesty and also to be faithful to be Constitution and the law. A person who indulges into using unfair means in procuring his educational qualifications and is also found guilty by the Disciplinary Committee, which is the only authority competent to inquire into the matters of such allegations against candidates appearing in the examination of the said University, 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 of 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 a condemnable act by file (sic) competent authority are allowed to be given entry into the doors of.
National or Provincial Assemblies of our country. The respondent No.1 not only is found guilty of a dishonest or cheatful involvement into the use of unfair means in procuring his B.A/degree/results from the University of Punjab but also made deliberately false statement before this Tribunal as well when P.W. was suggested that he was admittedly not holder of the B.A. degree from the University, of the Punjab whereas in his written statement Exh.P12, the respondent where he was respondent No.4 in the said writ petition categorically took up the plea and claimed to be holder of a valid B.A. degree from the University of the Punjab. He 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."
22. The second argument of learned counsel for respondent No.1 is that writ of quo warranto can only be issued, if the disqualification of holder of public office exists at the time of initiation of proceedings as well as at the time of final order and if the person attacked acquires the qualification during the pendency of petition, writ of quo warranto could not be issued.
He has relied on Lt. -Col. Farzand Ali and others v. Province of West Pakistan through the Secretary department of Agriculture, Government of West Pakistan Lahore (PLD 1970 SC 98), Dr. Mujahid Ali Mansoori and others v. University the Punjab and others (2005 PLC (CS) 694), M A. Jabbar and three others v. Federation of Pakistan through Secretary Establishment Division, Government of Pakistan Islamabad and 5 others (1999 PLC (CS) 686), P.L Lakhanpal v. Ajit Nath Ray Chief Justice of India, New Dehli and others (AIR 1975 Dehli 66), Sardar Asseeff Ahmed Ali v. Mr. Muhammad Khan Juneju and others (PLD 1986 Lahore 310), Dr. Azim ur Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299), Federation Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166), M. U.A. Khan v. Rana M. Sultan and another (PLD 1974 SC 228).
23.The issue of maintainability of writ of quo warranto against Member of Parliament or Provincial Assembly is that they are not holding Public Office. The term of Public Office came up before the Hon'ble Supreme Court of Pakistan in Salaud Din's case Supra, the Hon'ble Supreme Court held as under:-- "The primary test must always be whether the functions entrustedto the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public whether the control of the organization vest in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions with the affairs of the Federation or a province; otherwise not."
24.The argument that after amendment in Election Law (Amendment) Act III of 2009, the qualification of being graduate to be a Member of Parliament and Provincial Assembly no longer exists is concerned, this issue has already been decided by the Honible Supreme Court of Pakistan in Syed Mehmood Akhtar. Naqvi v. Federation of Pakistan through Secretary Law and others (PLD 2012 SC 1054) as under.
16. After hearing the petitioner, learned Attorney General, learned counsel for the respondents and others, taking into consideration the relevant provisions of the Constitution reproduced hereinabove and the material available on record, we are persuaded to hold that if a candidate suffers from pre or post disqualification under Article 63(I)(c) of the Constitution, no sooner such disqualification as envisaged under the said Article is attracted, becomes and is disqualified from being elected or chosen, and from being a Member of the Majlis-e-Shoora (Parliament). These provisions have to be construed strictly by interpreting the same in view of the established principle of interpretation by assigning plain and simple meanings to the words and phrases used therein and avoiding any substitution thereof as the same is not within the ambit of this Court.
25.The Hon'ble Supreme Court of Pakistan in Iftikhar Ahmed Khan's case (Supra) while discussing the status of Parliament held as under:-- "The parliament of any country is one of its noblest, honourable and important institutions making not only the policies and the laws for the nation but in fact shaping and carving its very destiny.
And here is a man who being constitutionally and legally debarred from being its member, managed to sneak into it by making a false statement on oath and by using bogus, fake and forged documents polluting the piety of this pious body. His said conduct demonstrates not only his callous contempt for the basic norms of honesty, integrity and even for his own oath but also undermines the sanctity, the dignity and the majesty of the said august Nouse. He is guilty, inter alia, of impersonation --posing to be what he was not i.e. a graduate. He is also guilty of having been a party to the marking of false documents and then dishonestly using them for his benefit knowing them to be false. He is further guilty of cheating-cheating not only his own constituents but the nation at large. "
26.In view of above discussion, we declare that respondent No.1 is not a graduate and as such he submitted false information on oath while contesting the Election of Member of Provincial Assembly PP-78 Jhang-VI and succeeded to defraud the voters of the constituency; hence we accept the writ petition and declare the respondent No.l's election as Member of Punjab Assembly fraudulent and of no legal effect and hope that Election Commission of Pakistan will take appropriate legal action against the respondent No.1 and the employees of Sargodha Board, Lahore Board and University of the Punjab.
27. The petition is allowed in the above said terms.