JUSTICE KAZIM ALI MALIK (ELECTION TRIBUNAL).- Wand Iqbal, petitioner (for short, the 'petitioner') and Sheikh Rohale Asghar, respondent No,1 besides respondents Nos.2 to 18 contested General Elections, 2013 held on 11th May 2013 for the position of Member, National Assembly from Constituency No,NA-124, Lahore-VII. On close of the poll, the Returning Officer grew up consolidated statement of the results of the count in form XVI on the basis of statements of the count in form XIV furnished by the Presiding Officers according to which, Walid Iqbal, petitioner secured 42,561 Votes whereas Sheikh Rohale Asghar, respondent No,1 obtained 119,312 votes. In this way, Sheikh Rohale Asgliar, respondent No,1 defeated all the rival candidates including Walid Iqbal, petitioner/runner up by 76,791 votes. Election Commission of Pakistan notified Sheikh Rohale Asghar, respondent No,1 as the returned candidate (for short, the 'returned candidate') from the above said Constituency.
2. Feeling dissatisfied with the result of the election to the above effect, Walid Iqbal, petitioner filed Election Petition No,316 of 2013 with an allegation that the returned candidate managed his success by adopting corrupt and illegal practices and that he was not eligible to contest the election as he relied upon bogus, forged and fictitious educational certificates.
3. In response to the notices issued to respondents Nos.1 to 18, only Sheikh Rohale Asghar, respondent. No, 1/returned candidate; Bushra Aitzaz, respondent No,2 and Muhammad Nawaz, respondent No,8 entered appearance whereas respondents Nos.3 to 7 and respondents Nos.9 to 18 opted to remain absent and were proceeded against ex parte. Sheikh Rohale Asghar, returned candidate and Bushra Aitzaz, respondent No,2 filed written replies. Muhammad Nawaz respondent No,8 joined the proceedings regularly without filing his written reply. It is manifest from written reply filed by Bushra Aitzaz, respondent No,2, who could secure 6,990 votes only, that she attempted to assume the role of petitioner without filing an Election Petition against the election of returned candidate. Here, I would say that section 52(1) of the ROPA, 1976 stands in the way of Bushra Aitzaz, respondent No,2 to assail the election of the returned candidate without filing Election Petition. For facility of reference, section 52(1) ibid is reproduced below:---
52. Election Petition.--- (1) No election shall be called in question except by an election petition made by a candidate for that election (thereafter in this Chapter referred to as the petitioner).
Keeping in view the statutory bar contained in section 52 ibid, Bushra Aitzaz, respondent No,2 cannot assume the role of petitioner by filing written reply in the Election Petition filed by her political rival, Walid Iqbal. I, therefore, exclude her written reply in the form of Election Petition from consideration, particularly when she (respondent No,2) neither entered the witness box nor produced any other evidence.
I have already observed in the preceding lines that Muhammad Nawaz, respondent No,8 did not file written reply. He also did not produce oral or documentary evidence. However, he sided with the petitioner. In view of the above said state of record and law, only Walid Iqbal, petitioner and Sheikh Rohale Asghar, returned candidate remained in field.
4. Through his written reply, the returned candidate denied and dismissed all the allegations against the election process and his candidature. He also raised a few preliminary objections of legal nature.
5. Keeping in view counter versions of the petitioner and the returned candidate, which they laid before the Tribunal through the Election Petition and the Written Reply respectively, following issues were framed:---
(1) Whether the election petition is incompetent in its present form? OPR1.
(2) Whether election petition is liable to dismissal for noncompliance of the provisions contained in section 55 of the Representation of People Act, 1976? OPR1.
(3) Whether the election petition is actuated by bad. Faith? If so its effect? OPR1.
(4) Whether respondent No,1 was not qualified to contest the election in question? OPP.
(5) Whether respondent No,1 was disqualified to contest the election in dispute? OPP.
(6) Whether the election in dispute is liable to be declared as void and the petitioner is entitled to be declared as duly elected from constituency NA-124 Lahore-VII for the reasons stated in the Election Petition? OPP.
(7) Whether criminal proceedings should be initiated against respondent No,1 under the Representation of the People Act, 1976 for the reasons stated in the Election Petition? OPP.
(8) Relief.
6. The petitioner entered the witness box as PW-6 in support of his case add cause. He also got examined his election agent Nasara Iqbal (PW-1) and polling agents; namely, Zaheer Ahmed (PW- 2); Faisal Latif (PW-3); Arslan Akram (PW-4) and Inam-ul-Haq (PW-5). On an application of the petitioner certified copies of complete record of Election Petition No,135 of 2008 arising out of General Elections, 2008 contested by Sheikh Rohale Asghar, returned candidate and his the then political rival Humayun Akhtar Khan, was made part of record of the Election Petition in hand. The petitioner was also allowed to bring on record an attested copy of marked Electoral Roll spreading over 118 pages, which he obtained from the Election Commission of Pakistan in terms of section 45 of the ROPA, 1976.
7. On the other hand, Sheikh Rohale Asghar, returned candidate supported his counter claim as RW-1. He did not examine any other witness. However, the returned candidate produced attested copies of his BA degree, Exh.RW-1/A; Certificate of Intermediate Examination, Ex.RW-1/B; Certificate of Secondary School Certificate, Exh.RW-1/C, his own affidavit, Exh.RW-1/D and detail marks certificate, Exh. RW-1/E.
8. I have heard both sides and have perused the evidence brought on record by the petitioner and the returned candidate.
9. Learned counsel for the petitioner has contended that the petitioner put forward specific instances of corrupt and illegal practices committed by the returned candidate in connivance with the Govt. Officials and his own supporters and that the same were also proved at trial with evidence. On the other hand, learned counsel for the returned candidate dismissed the above said argument with the plea that the petitioner made vague, general and meaningless allegations.
10. Keeping in view the arguments of both sides, I have minutely gone through the Election Petition wherein the petitioner alleged that the election/polling agents and supporters of the returned candidate got credited votes to the vote account of the returned candidate, which had been polled to the petitioner; that the election/polling agents and supporters of the returned candidate themselves managed and controlled the election process; that the returned candidate and his supporters/ polling agents committed illegal and corrupt practices and violated the provisions of ROPA, 1976; that the results of the election had been engineered in advance; that the returned candidate and his election agents/supporters offered gratification and rewarded many persons including Government officials, who induced the voters to refrain from voting in favour of the petitioner; that the returned candidate and his polling agents/supporters extended threats, used force, resorted to violence and injured the voters in order to compel them to exercise their right of vote in favour of the returned candidate; that the returned candidate and his polling agents harassed the voters/supporters of the petitioner and restrained them from casting their vote; that the polling agents of the returned candidate with the support of Presiding Officers of various polling stations snatched ballot papers from illiterate voters and themselves stamped the snatched ballot papers in favour of the returned candidate; that numerous bogus votes had been cast in favour of the returned candidate by his polling agents; that the Presiding Officers committed illegalities while counting votes; that the Presiding Officers excluded such votes from the count, which had validly been polled to the petitioner; that the returned candidate committed illegal practices, violated the law, adopted pressure tactics and intimidated the voters; that the polling staff in connivance with the polling agents of the returned candidate stuffed the ballot boxes with ballot papers; that polling agents of the returned candidate themselves thumb marked hundreds of counterfoils; that votes, which should have been excluded from the count being invalid had been counted towards the vote account of the returned candidate and that the returned candidate hoodwinked the law and procedure in his favour and thus rigged the election.
11. At the very outset, I would say without any fear of contradiction that the aforesaid allegations do not qualify the legal test laid down by section 55(1)(b) of the ROPA, 1976, which reads as under:--- "Contents of petition,---(1) Every election petition shall contain ---
(b) full particulars of any corrupt or illegal practice or other illegal act alleged to have been committed, including as full a statement as possible of the names of the parties alleged to have committed such corrupt or illegal practice or illegal act and the date and place of the commission of such practice or act; and "
A combined examination of the allegations set up in the Election Petition, referred to above and the statutory provisions of section-55 ibid would show that the petitioner completely failed to put forward full particulars of corrupt and illegal practices or other illegal acts alleged to have been committed by the returned candidate and his supporters. Similarly, the aforesaid allegations do not tell the names of those persons, who committed corrupt or illegal practices. A bare perusal of the allegations given in the Election Petition would show that instead of providing full particulars of the corrupt and illegal practices allegedly committed during the election process, the petitioner relied on vague and general allegations. Hence, I exclude the aforesaid allegations from consideration being violative of the mandatory provisions of section 55 ibid. Learned counsel for the petitioner attempted to argue that at trial of election dispute, the petitioner proved the corrupt and illegal practices with evidence and also furnished their details, which could not be given in the Election Petition. This contention is not receiving support from the record.
Affidavits of Zaheer Ahmad (PW-2) and Faisal Latif (PW-3) repeated the vague allegations in line with each other word for word. The statements of other witnesses of the petitioner are of no help to him because he is not right in his assertion that his witnesses examined at trial proved the general allegations or explained the vague allegations. My this conclusion is receiving support from the testimonies of the witnesses of the petitioner. Relevant lines of their testimonies are reproduced below for facility of reference:--- Nasara Iqbal (PW-1): I did not mention name of polling agent at Ghulistan Public School, who made telephonic complaint to me at about 11.30 AM. In my presence ballot boxes had not been stuffed at polling station Ghulistan Public School. The male supporters of the returned candidate were found indulged in corrupt practices inside the female polling station of Government Yasmeen Girls High School Mugal Pura. I did not mention their names in my affidavit as they were not known to me.
Votes in a sizeable number had been cast through impersonation, but I did not give their names and particulars in the affidavit as it was not possible. I did not give name of a single voter of the petitioner whose vote had been cast through impersonation. I did not mention names of members of polling staff indulged in corrupt practices because they were not known to me. Myself, our voters and our polling agents were not allowed to enter the polling station to discharge their duty. I did not mention the names of our said polling agents in my affidavits. I saw at the polling station of Dhobi Ghaat, that the members of polling staff were openly involved in rigging. I do not know the names of said members of polling staff. I did not mention name of a single voter whose vote had been cast by the polling staff. I did not mention name of the person from whom I received telephonic complaint regarding the polling station Mustafabad. I saw at a number of polling stations that the voters were forced and compelled to cast vote in favour of the returned candidate.
Zaheer Ahmed (PW-2): I did not mention names of those voters in my affidavit from whom their CNIC had been taken away. I kept on sitting outside the polling station till 8.00 PM with my own will. I sat outside the polling station during the counting. I did not mention names of the voters who had been deprived of their right of vote. I did not give names of those, who extended threats to the voters. In a sizeable number the votes should have been excluded from the count and rejected.
Faisal Latif (PW-3): I levelled allegations against voters and supporters of the returned candidate without giving their names as they did not belong to the area attached with said polling station. I did not mention names of those voters in my affidavit whose identity cards had been collected by supporters of the returned candidate after obtaining their thumb impressions. I have not given names of the members of polling staff in my affidavit. I did not mention names and number of voters, who could not cast their vote. I did not mention names and designation of the police officials in the affidavit, who indulged in corrupt practices. I did not mention number of voters of returned candidate who had been facilitated to cast vote after close of the poll. I did not give the number of votes, which in my opinion should have been excluded from the count instead of counting towards the vote account of the returned candidate.
Arslan Akram (PW-4): I saw with my own eyes that supporters of the returned candidate themselves stamped ballot papers in favour of the returned candidate. I repeatedly agitated before the members of polling staff orally and in writing that the polling process was being rigged, but with no response. I have not given names of the above said members of polling staff in my affidavit. I did not mention in my affidavit names and number of voters, who could not cast their vote. I have not given the number of votes in my affidavit, which should have been excluded from the count instead of counting towards the vote account of the returned candidate.
Inam-ul-Haq (PW-5): I did not mention names and designation of the police officials in the affidavit, who indulged in corrupt practices. Sub-Inspectors, police indulged in incorrupt practices. I have not given names of those members of polling staff who supported the returned candidate.
Walid Iqbal (PW-6): I have not given the names and particulars of the members of the polling staff, police officials and the officers of District Administration, who sided with the returned candidate with reference to the allegations regarding the polling stations of Salamat Pura and Harbanspura. I have not given the names ofmy polling agents, who had been forced out at the time of counting of votes. I have not given name and number of polling stations, where the polling process had been delayed with a motive to discourage my voters. I have not given the names of my those voters who had been prevented by the polling staff and the police officials from exercising their right of vote.
It is evident from the statements of the PWs that they attempted to reshape and improve upon their initial stance. Despite improvements at trial, the PWs failed to prove the allegations beyond any shadow of doubt. Statements of the examined PWs and allegations set up in their affidavits and the Election Petition have been examined together and D their combined examination provides a basis to say that all the aforesaid allegations remained vague as they were before the inception of trial.
12. Learned counsel for the petitioner further argued that a large number of votes, which should have been rejected and excluded from the count, had been counted as validly polled votes by the Presiding Officers and the Returning Officer and that the details in this regard were set up in the Election Petition in tabulated form. Before scrutiny of the contention, the tabulated stance of the petitioner is reproduced below:--- Number of polling stations.Number of votes, which have been Illegally rejected and which are Otherwise valid votes in favour of The petitioner. Number of votes, which have been counted as valid votes in favour of respondent No. 1 to otherwise are liable to be rejected.Number of valid votes actually obtained by the petitioner including votes shown as rejected in form XIV and excluded votes wrongly counted in favour of respondent No.1.Number of votes actually obtained by respondent No.1.
256 2432 336665 44843 85039 To a question, as to what was/is the basis of the tabulated statement, learned counsel for the petitioner was possessed with no answer. It appears that wishful thinking persuaded the petitioner to place relianceon the ground of attack in tabulated form despite the fact that he was/is not possessed with any evidence in support of the same
14. At the cost of repetition, I would say that each and every allegation, referred to above is meaningless and without any basis. The petitioner alleged that supporters of the returned candidate bribed the electors. The Election Petition and testimonies of the witnesses do not tell as to who bribed the voters. Similarly, the names and particulars of those voters, who received illegal gratification, could not be furnished by the PWs. Statements of the petitioner and his witnesses do not disclose identity of the voters, who had been harassed or injured by the supporters of the returned candidate. Likewise, names and particulars of those, who had threatened and injured the electors, are missing: Not a single voter entered the witness box, who had allegedly been threatened or injured by the supporters of the returned candidate. Medico-legal reports of the injured electors, if any, were not adduced in evidence. Not a single voter could be produced, who had been forbidden by the supporters of the returned candidate from casting his vote in favour of the petitioner. Not a single voter could be named and particularized by the petitioner and his witnesses, who could not exercise his right of vote due to alleged highhandedness of the supporters of returned candidate. In these circumstances, the aforesaid allegations by the petitioner are at the most his self-assertions. Needless to add that self-assertion is not the IF substitute of legal evidence.
15. Learned counsel for the petitioner halfheartedly argued that his polling camp at polling stations Nos.129 and 130 had been demolished by the polling staff and the police; that the polling staff was given possession of the buildings of polling stations a day before the election day and that a few polling stations of the constituency were established in the buildings of private schools. I find it convenient to take up each allegation separately. The statement of Nasara Iqbal, PW-1 would show that polling camps of the petitioner and the returned candidate at the above said polling stations had been uprooted as the same had been established within the prohibited zone. The only grievance of Nasara Iqbal, election agent/PW-1 was that the polling camp of the, petitioner was demolished first and that of the returned candidate was removed with delay. Be that as it may, it stands established on the basis of statement of election agent of the petitioner that both sides were treated at par as their polling camps had been uprooted for having been installed within the prohibited zone. For the sake of arguments, if it is admitted that the polling camp of the petitioner was removed first and that of returned candidate was demolished with some delay, even then the election of the returned candidate, who defeated the petitioner by 76,791 votes would not be adversely affected.
Now I take up the second allegation. I fail to understand as to why this meaningless allegation has been levelled by the petitioner. The members of polling staff were under legal obligation to establish polling stations according to the polling scheme at least one day before the polling day.
Had the polling staff not occupied the buildings of polling stations one day before the polling day, it would have been difficult rather impossible for them to conduct the election on the polling day. For two reasons, I do not feel inclined to attach any importance to the third allegation. If the petitioner was aggrieved of notified polling scheme by means of which a few polling stations were established in the buildings of private schools, he should have filed objections within the prescribed period before the District Returning Officer. Secondly, due to non-availability of official buildings, the District Returning Officer was left with no other option but to establish polling stations in the buildings of private schools. Needless to add that there is not an iota of direct or indirect evidence on the file, which may show that the election conducted in the buildings of private schools caused any damage to the cause of petitioner or any other contesting candidate.
16. For the aforesaid reasons, the case of the petitioner to the extent of allegations against the election process, falls to the ground.
17. After coming to the conclusion that it is a case of no evidence to the extent of allegations against the election process, I take up the second ground of attack against candidature of the returned candidate that he relied on fake and bogus educational certificates. At trial, Walid Iqbal, petitioner (PW-6) deposed in this regard as under:---"The returned candidate was not qualified to contest the election in terms of Articles 62 and 63 of the Constitution. He submitted false declaration regarding his educational testimonials before the Returning Officer. He wrongly claimed to be graduate on the basis of fake and bogus degree. The returned candidate contested the General Elections, 2008. At that time, he claimed to be graduate on the basis of fake and bogus degree."
On the other hand, Sheikh Rohale Asghar, returned candidate (RW-1) produced degree of Information Technology awarded by Al-Khair University, AJ&K (Ex.RW-L/A), Intermediate Certificate (Ex.RW-1/B) and Secondary School Certificate (Ex.RW-1/C). A perusal of the educational certificates, referred to above would show that the returned candidate passed Secondary School Certificate Examination in 1969 as regular student of Government High School, Baghban Pura, Lahore. He passed Intermediate Examination (Pre-Engineering Group) in 1971 as regular student of FC College, Lahore. Although, the petitioner made an allegation through his Election Petition that all the educationalcertificates of the returned candidate were fake and fictitious, yet he could not lead any evidence against the Intermediate Examination Certificate and. Secondary School Examination Certificate, referred to above. During the course of arguments, the Matriculation Certificate and Intermediate Certificate of the returned candidate remained unchallenged. In this way only the degree of Bachelor of Information Technology (Ex.RW-1/A) obtained by the returned candidate at the examination held in April, 2003 remains under challenge. The petitioner claimed at trial that the aforesaid degree was fake and bogus. He did, not produce any documentary evidence in support of his allegation. To a question, as to how and on what basis the petitioner claimed that the degree (Ex.RW-1/A) relied upon by the returned candidate was fake and bogus, learned counsel for the petitioner has argued that the returned candidate contested General Elections, 2008 for the position of Member, National Assembly successfully; that his election was challenged by Humayun Akhtar Khan, one of the contesting candidates of that election through Election Petition No.135 of 2008 titled as Humayun Akhtar Khan v. Sheikh Rohale Asqhar and others wherein the degree in question stood proved fake and bogus in the light of statements of Muhammad Shareef Sabir, Registrar, Al-Khair University, Islamabad and Abid Hussain, Director (A&A) Higher Education Commission of Pakistan, Islamabad and that the aforesaid statements being part of the record of this Election Petition can be looked into to resolve the controversy. It would be advantageous to reproduce below the statements on oath of the Registrar, Al-Khair University (Marked-A) and Director, (A&A) HEC (Marked-B), which they made at trial in Election Petition No.135 of 2008 arising out of General Elections-2008:--- Statement of Muhammad Sharif Sabir, Registrar, Al-Khair University, Islamabad on oath.
Al-Khair University is chartered in Azad Jammu and Kashmir. The main campus is located in Mirpur, Azad Jammu and Kashmir, various institutes in Pakistan are affiliated with Azad Jammu and Kashmir campus. Students are educated in the affiliated campuses but the record is maintained as required by the University Rules, in the Principal Office. According to the record, degrees are awarded to the students. Respondent No.1 (Sheikh Rohale Asghar, returned candidate) was educated in college of Global Technology 2nd floor 55-55-A near U-fone Office, Bank Road, Saddar, Rawalpindi. Degree was awarded to respondent No.1 (Sheikh Rohale Asghar, returned candidate) on the basis of examination taken in the above said college. Attested copy of the degree is produced as Ex.AW-4/1. Attested copy of detailed marks certificate is placed as Ex.AW-4/2.
It is correct that degree issued' to respondent No.1 (Sheikh Rohale Asghar, returned candidate) is of Al-Khair University, Azad Jammu & Kashmir."
Statement on oath of Abid Hussain, Director (A&A) HEC, Islamabad (CW-1)
I have brought with me the charter of Al-Khair University granted by the Government of AJ&K on 4-7-1994, Exh.CW-1/1. Under this charter the AI-Khair University can award degrees to successful candidates. The minutes of the 18th meeting of Board of Governors of HEC held on 31-3-2009 at Islamabad, on the subject of Al-Khair University, AJ&K, is Exh.CW-1/2. The decision of the Board of Governors at item No.8 of the said minutes is that no degree issued by Al-Khair University would be recognized by the HEC for any student admitted into any program of the said university after 30-4-2009. The said decision, however, recognizes degrees awarded by the Al-Khair University prior to 30-4-2009.
Answers to Tribunal questions.
There is no letter of the HEC stating that the degrees awarded by the Al-Khair University prior to 30-4-2009 are recognized by the HEC. This recognition follows from the fact that the Al-Khair University is a chartered institution in the AJ&K. The letter dated 19-5-2010, Exh.CW-1/3 has been examined. It is a genuine document issued by the HEC.By learned counsel for respondent No.1.
It is correct that the degrees issued by the Al-Khair University, prior to 30-4-2009 are recognized by the HEC.
XXXXXXXXXX by learned counsel for the election petitioner.
The HEC is constituted by the HEC Ordinance, 2002. 1 have been working in the HEC and its predecessor UGC for the last 30 years. I am not familiar with the entire record and correspondence and order passed by the HEC. I have read the charter of Al-Khair University as well as the limits of the Board of Governors dated 31-3-2009 carefully. It is correct that the Principal Seat of the Al-Khair University is located within AJ&K. The HEC has informed the AI-Khair University thatunless its external campuses are approved by the Provincial Government within whose territory these are established, the same are illegal. The letter dated 9-1-2006 by the HEC addressed to the Vice-Chancellor, AI-Khair University, Exh.CW-1/4 has been seen and read, it is true and correct copy. The certificate by the HEC dated 16-12-2008 at Exh.CW-1/5 has been seen and read, it is true and correct copy. According to this certificate the operation of all affiliated campuses of the AlKhair University outside the AJ&K are illegal. HEC letter, Exh.CW-1/3 gives the address of the website of the HEC wherein the relevant forms for obtaining attestation by HEC of academic degrees is provided. The HEC attests degrees issued by educational institutions for the purpose of presentation before outside institutions, employers etc. Answer to Tribunal questions.
The expression, "regular basis" used in Exh.CW-1/3 means degrees awarded to students who are on campus and not private students. By on campus it is meant the principal campus of the University as well as its affiliated campuses.
It is manifest from testimonies of the Registrar, AI-Khair University and the Director (A&A) HEC reproduced above and relied upon by the petitioner that the degree in question, Exh.RW-1/A was awarded to Rohale Asghar, returned candidate by Al-Khair University. To a question, as to how and on what basis the degree awarded to the returned candidate has been declared as forged, fake and bogus by the petitioner, learned counsel for the petitioner attempted to argue that Al-Khair University was not competent to award the degree to the returned candidate and that in absence of equivalence certificate by the HEC, the degree would be considered as fake and bogus. Learned counsel for the petitioner relied on the case law laid down in Mian Muhammad Azam Chaila v.
Wajid Ali Khan and others PLD 2009, Lahore 449; Haji Nasir Mehmood v. Mian Imran Masood and others PLD 2010 SC 1089; Sardar Azmat Ullah Khan v. Molvi Muhammad Sarwar and others 2011 SCMR 107; Mian Najeeb-ud-Din Owaisi v. Amir Yar Waran and others PLD 2013 SC 482; Abdul Ghafoor Lehri v. Returning Officer and others 2013 SCMR 1271, Malik Iqbal Ahmad Langriyal v.
Jamshed Alam and others PLD 2013 SC 179; Nawab Zada lftikhar Ahmad Khan v. Chief Election Commissioner, Islamabad and others PLD 2010 SC 817 and Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828.
18. I have gone through the precedents very carefully and minutely and would say that facts of the precedent cases are altogether different from that of the case in hand. In Mian Muhammad Azam Chaila's case(PLD 2009 Lahore) 449, the petitioner sat for Al-Khair's BA examination on the basis of Sanad Shahadat-ul-Aalmia, which was declared as bogus by Ittihad-ul-Maddaras and consequently Al-Khair University cancelled candidature of the petitioner for BA examination. The Hon'ble Lahore, High Court, Lahore observed in the precedent case that the petitioner lacked the qualification of eligibility for admission to Al-Khair's BA examination, particularly after cancellation of petitioner's BA result by the University and that according to the records of Al-Khair itself, the petitioner's claimed BA qualification remained suspect. Contrary to the facts of precedent case, the returned candidate of the petition in hand passed Secondary School Certificate Examination as regular student of Government High School, Baghban Pura, Lahore and then did F.Sc. (Pre- Engineering Group) from Forman Christian (FC) College, Lahore. During the course of arguments learned counsel for the petitioner did not challenge genuineness of the aforesaid two certificates of the returned candidate. Hence, the returned candidate was qualified and eligible to sit in Al-Khair's BA examination.
19. Learned counsel for the petitioner further argued that enrolment of the returned candidate as an external student (private student) and appearing in the Al-Khair's BA examination at Rawalpindi was prohibited by the HEC as observed by the Hon'ble Lahore High Court, Lahore in the precedent case at its paragraph No.17. The fact of the matter is that the returned candidate was neither enrolled as external/private student nor he sat in Al-Khair's BA examination in the said capacity.
Muhammad Sharif Sabir, Registrar, Al-Khair University made statement (Marked-A) at trial of earlier election dispute that AlKhair University was chartered in AJ&K; that its main campus was located in Mirpur with various institutions in Pakistan affiliated with AlKhair University; that the students were also educated in the affiliated campuses and their record was maintained in the principal office and that Sheikh Rohale Asghar, returned candidate was educated in affiliated institution namely, College of Global Technology, Rawalpindi and resultantly, the degree was awarded to him by the university. Abid Hussain Director (A&A) HEC, Islamabad was also examined in the earlier round of litigation touching degree in question arising out of the General Elections- 2008, when he made statement (Marked-B) that Board of Governors of HEC decided in a meeting held on 31-3-2009 that the degree issued by Al-Khair University after 30-4-2009 would not be recognized by the HEC and that the degrees awarded to the students, who studied on principal campus and its affiliated campuses were however, approved. In the case in hand, the returned candidate studied in affiliated campus at Rawalpindi and then the degree in question was awarded to him by Al-Khair University in 2005. In this view of the matter, the observations/findings of the Hon'ble Lahore, High Court,Lahore, referred to above and relied upon by the petitioner are of no help to him. Needless to add that the petitioner himself placed on record statements, Marked-A and B, made by the Registrar, Al-Khair University and the Director (A&A) HEC, which they made at trial of previous election dispute, according to which the returned candidate studied on an affiliated campus of the University located in Rawalpindi and then obtained the degree in question in 2005. The degrees awarded by the Al-Khair University to the students of affiliated colleges located in Pakistan after 30-4-2009 were not approved by the HEC. In other words, the petitioner's own evidence has demolished his case and cause touching the degree in question.
20. In Haji Nasir Mehmood case (PLD 2010 SC 1089) Bachelor Degree not recognized by HEC has been declared as worthless with an observation that validation of the degree depends upon its recognition by HEC. For two reasons, the case law, referred to above, is not applicable to the case in hand. First, a combined examination of the statements of Registrar, Al-Khair University (Marked-A) and Director (A&A) HEC (Marked-B) would show that the degree awarded to Sheikh Rohale Asghar, returned candidate in 2005 stands recognized by the Board of Governors, HEC.
21. In Sardar Asmatullah Khan's case (2011 SCMR 107) Moulvi Muhammad Sarwar, respondent claimed to be graduate on the basis of Sanad of Shahadat-ul-Aalmia, which was not considered as equivalent to Bachelor Degree, by the HEC. In the case in hand the returned candidate did not rely on Deeni Sanad. He passed Secondary School Certificate Examination and Intermediate Examination as regular student of Government High School, Baghban Pura, Lahore and FC, College, Lahore respectively. On the basis of aforesaid certificates he was enrolled as regular student for BA examination by the Al-Khair University. He studied on an affiliated campus in Rawalpindi. In view of the above, it can be safely said that facts of the precedent case are altogether different from that of the case in hand.
22. In Abdul Ghafoor Lehri's case (2013 SCMR 1271) the appellant claimed to be graduate while filing his nomination papers on the basis of Deeni Sanad, which had not been declared as equivalent to Bachelor Degree by the HEC. In the case in hand, the returned candidate did not rely on any Deeni Sanad. He sat in BA examination on the basis of educational certificates, correctness of which is not in dispute.
23. In Malik Igbal Ahmad Langrial's case (PLD 2013 SC 179) the Hon'ble Supreme Court of Pakistan upheld the decision of learned Election Tribunal by means of which, Malik Iqbal Ahmad Langrial, appellant was found neither righteous nor honest or Amin on the groundsthat he was declared to be an imposter by a Division Bench/Election Tribunal; that he was not holder of Sanad from a Madrassa duly recognized by the HEC; that the two Sanads of Deeni Madrassa of the appellant were held as fraudulent and manufactured through unfair means and forgery and that he had not passed the two additional subjects as per law. I have repeatedly observed in the above paragraphs that the Secondary School Certificate and Intermediate Certificate awarded to the returned candidate as regular student of Government High School, Baghban Pura, Lahore and FC College, Lahore respectively remained unchallenged. Registrar, Al-Khair University made statement (Marked-A) that the University validly awarded the degree in question to Sheikh Rohale Asghar, returned candidate. The Director (A&A) HEC made statement (Marked-B) that the degrees awarded to the regular students of affiliated campuses before 2009 were recognized by HEC.
Needless to add that the returned candidate obtained the Bachelor. Degree in 2005. Hence, the case law is not applicable to the case in hand with any stretch of imagination.
24. In Nawabzada Iftikhar Ahmad's case (PLD 2010 SC 817) no case law was laid down by Apex Court of the country. For facility of reference the relevant paragraph of the judgment is reproduced below:--- "Since, as has been mentioned above, Jamshed Dasti respondent had resigned his seat in the National Assembly, therefore this petition is converted into an appeal and allowed as a result whereof all the orders and decisions rendered in the matter by the concerned authorities and even the impugned judgment of the Lahore High Court are set aside as being of no legal consequences. It may be added that the legal questions raised in this petition are being left- unanswered as having been rendered only of academic nature."
25. In Muhammad Rizwan Gill's case (PLD 2010 SC 828) Muhammad Rizwan Gill, appellant claimed to be graduate on the basis of forged and fictitious degree. The relevant part of the final order of learned Election Tribunal, upheld by the Apex Court of the country reads as under:- "In view of the above, it is clear and obvious that certificate relied upon by respondent No. 1 to establish that he is a graduate does not pertain to respondent No. 1 as the underlying record of the University pertaining to the said certificate, appear to fabricated, interpolated, forged and fictitious. In view of above it is evident that respondent No.1 did not possess the requisite qualification, i.e. Graduation to contest the election, So Issues Nos.1, 2 and 3 are decided in favour of the petitioner." so, Issues Nos.1, 2 and 3 are decided in favour of the petitioner."I fail to understand as to how the learned counsel for the petitioner has relied on the above said case-law. It has been established on the basis of conclusive documentary evidence, discussed above that Sheikh Rohale Asghar, returned candidate obtained Secondary School Certificate and Intermediate Certificate as regular student of Government High School, Baghban Pura, Lahore and FC College, Lahore respectively. On the basis of aforesaid certificates, correctness of which is not in dispute or disputable, the returned candidate sat in Al-Khair's BA examination and then the University awarded the degree in question to him in 2005. At the cost of repetition, I would say that Registrar, Al-Khair University and the Director (A&A) HEC certified on oath by means of their statements, referred to above that the degree in question was validly awarded to the returned candidate in 2005 by the University and was recognized by the HEC.
26. Learned counsel for the petitioner lastly argued that the returned candidate could not withstand the test of cross-examination. As he knew nothing about the subjects, which he statedly passed and obtained the degree from Al-Khair University. This is a matter of record that learned counsel for the petitioner put certain questions to the returned candidate to test his mental faculty and knowledge regarding the subjects, which he passed as per degree in question, when he was unable to answer those questions. The only inference, which can be drawn is that Sheikh Rohale Asghar, respondent was not able student having required and enough knowledge of the subjects, which he passed as regular student of Al-Khair University. For two reasons, I do not feel inclined to take cognizance of the issue. First, the Election Tribunal is not supposed to assume the role of Controller of Examinations or Chancellor of the University. Secondly, this is a question of common knowledge and is undisputed ground reality that people in a sizeable number holding very important official and unofficial positions in the system on the basis of their educational certificates and professional degrees do not know ABC of the subjects, which they passed as per certificate or degree, but it does not mean that they are holding fake degrees. At this stage, an exercise of testing mental faculty of the returned candidate with reference to the subjects passed by him in 2005 cannot be carried out nor such exercise would be desirable and permissible under the law. It is the duty of the Education Department and the HEC to take affective steps to improve the education system so that the students not possessed with required knowledge may not succeed to obtain educational certificates and degrees.
27. For what has been stated above Issues Nos.4, 5 and 6 areanswered against the petitioner.
Issues Nos.1, 2 and 7 stands disposed of as having not been pressed.
28. For the aforesaid reasons the Election Petition fails and is dismissed with no order as to costs.