WAQAR AHMAD SETH, J.---Through this single judgment, we propose to dispose of instant Writ Petition as well as connected Writ Petitions Nos. 191-A and 240-A/2014 as common questions of law and facts are involved therein.
2. In essence, grievance of the petitioners is that they are voters of constituency PK-54 Mansehra-II and private respondent namely Mian Zia-ur-Rehman, who contested the General Election of 2013 from the said Constituency, has been declared as returned candidate but he is not honest, ameen, righteous, sagacious, non-profligate person within the meaning of Article 62(1)(f) of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that in General Election of 2008 while filing nomination papers, he declared himself as Graduate on the basis of Sanad-ul-Faragh Shahadatul-Alia whereas in General Elections of 2013, he declared himself as Matriculate, thus, the petitioners have filed the instant quo warrant writ petitions before this Court with the prayer to call the private respondent i.e. Mian Ziaur Rehman as to under what authority of law and constitution, he is holding the Office of Member Provincial Assembly PK-54 Mansehra-II and respondent/Election Commission of Pakistan be directed to set aside his notification as Member Provincial Assembly.
3. While filing comments to the writ petitions, private respondent/Mian Zia-ur-Rehman states that the Writ Petitions are hit by the principle of Res judicata as the subject matter of instant Writ Petitions has been finally decided and disposed of by the worthy Supreme Court of Pakistan in Civil Appeals Nos. 1308 and 1309/2013 vide judgment dated 27.1.2014. It is further stated that nomination papers of respondent No.5 has neither been challenged by anyone including the petitioners within the meaning of Article 62 read with Article 63 of the Constitution of Islamic Republic of Pakistan, 1973 nor the petitioners have locus standi to challenge his educational qualification being not candidates in any election in his constituency coupled with the fact that the petitioners are not aggrieved/affected person. That the answering respondent has disclosed his qualification as BA and in the subsequent General Elections of 2013 as Matriculation because in the former Elections of 2008, he was legally required to do so as by that time without being BA he could not contest the Elections while no such requirement existed to mention such qualification in the nomination papers of 2013. Anyhow, all these allegations and objections relate to the jurisdiction of Election Tribunal, constituted under Article 225 of the Constitution to decide all such disputes and do not fall within the constitutional jurisdiction of this Hon'ble Court. Taking cognizance of the matter relating to Election Tribunal would be beyond the terms of Constitution and legal mandate and thus any decision rendered would be ipso facto illegal and without jurisdiction. Earlier, this Court in Writ Petition No. 730-A/2013 titled "Mian Zia-ur-Rehman v. Syed Ahmed Hussain Shah etc" in its very elaborate judgment held that all the questions relating to the election are within the domain of Election Tribunal and does not fall within the jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Moreso, the allegations are factual, needing recording of pro and contra evidence, which cannot be resolved in constitutional jurisdiction, hence, prayed for dismissal of instant Writ Petitions.
4. Similarly, the Federal Government through Secretary Ministry of Parliamentary Affairs, Islamabad was arrayed as respondent No.6 by this Court vide order dated 13.12.2016 being necessary party, who furnished report by stating that the petitions exclusively relates to the election issues and Ministry of Parliamentary Affairs is not involved in such issues, therefore, prayed for its dismissal with costs.
5. Likewise, in Writ Petition No. 240-A/2014, respondent No.1/ Secretary Election Commission of Pakistan has filed parawise comments and stated therein that the petition is not maintainable as the petitioner is barred to file the same being not contesting candidate. According to Section 52(1) of ROP Act, 1976, no election shall be called in question except by an election petition made by a candidate for that election. It is further stated that petitioner has no cause of action to file instant petition as earlier petition filed on the same cause of action has already been dismissed by the apex Court vide judgment dated 27.1.2014.
6. Arguments heard and record perused.
7. Before dilating upon the merits of the case, which even otherwise are not specifically denied and the same were determined explicitly by the Election Tribunal, Abbottabad, in its judgment / decision dated 23.10.2013, the main plea of private respondent is regarding the maintainability of writ of quo warranto and secondly the res judicata, while relied on PLD-1974 Supreme Court-228, PLD 2010 SC-34, PLD, 2008 SC 735, PLD-2008 SC-85, 2008 YLR-1493, PLD 2016 SC 79, 2004 MLD 36, 2014 SCMR 1015, 2015 PTD 438 PLD1988 SC 416., 2016 SCMR 439 and PLD 1965 SC 236, hence the preliminary objections of maintainability and res, judicata are taken before main discussion.
8. The word Res judicata has been defined in section-11 of the C.P.C. 1908 which reads as under:- "Res Judicata.---No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation No.1-- The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation No.II.--For the purposes of the section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation No. III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted expressly or impliedly by the other.
Explanation No. IV.--Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation No. V. -- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation No. VI .---Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall for the purposes of this section, be deemed to claim under the person so litigating.
9. This section qualifies insofar as suit are concerned the doctrine of res judicata, where there is a judgment inter se parties, it will prevent a fresh suit between them regarding the same matter. This principle/doctrine is of universal application and in fact a fundamental concept in the organization of every jural society. Justice requires that every cause should be once fairly tried and public tranquilizes demands that having been tried once all litigations about that cause should be concluded for ever between those parties. We have attended to the entire record and the learned counsel for respondents was invited to lead us to any documents/judgment showing that previously between the same parties, emphasis is upon same parties matter has been decided, but could not show us that previously any litigation except the instant quo warrant to were initiated or decided and as such the doctrine of res judicature is not applicable to any of the three writ petitions.
10.As regarding the maintainability of the writ of quo warranto and the jurisdiction of Election Tribunal is concerned, the Election Tribunals are constituted under Article-225 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under:- "No election to House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis- Shoora.
11.The Election Petition has been defined in the Representation of Peoples Act, No. LXXXV of 1976, section-52 which reads as under:- "No election shall be called in question except by an election petition made by or candidate for that election (hereafter in this Chapter referred to as the petitioner).
12.The emphasis in the above quoted section is upon 'made by or candidate for that election'. The petitioners in all the three writ petitions are voters of the PK-54, Manshera-II and were not candidate in the election, which was contested by the private respondent. The entire scheme and theme of the Representation of the Peoples Act, 1976, revolves around the election and the candidates whether contestant or returned. The voters and for that matter the citizens of Pakistan or of the constituency, nowhere figures.
13.Record suggests that one Syed Ahmad Hussain Shah and Syed Mazhar Ali Qasim, previously challenged the election of private respondent/Mian Zia ur Rehman as a returned candidate from the constituency PK-54 Manshera-II on the ground that he on the day of his filing of nomination form for General Elections of 2013, was not qualified to be elected or chosen as member of the Parliament or Provincial Assembly in terms of the Provisions of Article-62 (1) (1) of the Constitution of Islamic Republic of Pakistan, 1973. The said election petitions were entertained by the Election Tribunal, Abbottabad and were allowed. The present private respondent went in appeal before the appellate Court i.e. Supreme Court of Pakistan in C.Ps. Nos. 1308 and 1309 of 2013 and the apex Court without dilating upon the merits of the case, just dilated upon section-54, decided the matter by holding that since the Election Petition was not properly verified as required under sections-54 and 55 of the Representation of Peoples Act, 1976, but in the concluding paragraph No.17 held as under:- "For what has been discussed above, both these appeals are allowed and the impugned judgment is set aside with no order as to cost. However, before parting with the judgment, we may like to add that the observations made in this judgment are without prejudice to any, other remedy against the appellant which the respondents-objectors may have under the law."
14. The instant writ petitions are for all intent and purposes writ of quo warranto and a writ of quo warranto is an information in nature placed before the Court and the petitioner may not be an aggrieved person.
Reliance is placed on PLD-2013 Lahore-586 which reads as under:-- A writ of quo warranto is information in nature placed before the court and the petitioner may not be an aggrieved person.
The words in Article 199(b) (ii) of the Constitution are "holding or purporting to hold a public office".
Writ of quo warranto can be issued against a person, who is holding a public office without any lawful authority or he is a usurper. The word used in Article 199(b) (ii) of the Constitution are "the holder of public office" denotes that relief of writ of quo warranto will be available to a person against a holder of public office and not a retired person. The intention of the legislature is clear that relief of quo warranto is available only against those who are present and not who were public office holder or would be public office holder. When the holder of public office ceased to hold the office, the relief of quo warranto also becomes not available to an aggrieved party or any other person.
The only object of the writ of quo warranto is to inquire into and determine the authority of a person holding a public office, and the consequence of the acceptance of the petition is the ouster of the person from the public office, the relief by way of writ of quo warranto remain only available so long as the person attacked is in actual possession and user of the office.
As a general rule, therefore, quo warranto to question a person's title to office will not be granted after he has ceased to hold that office.
The writ of quo warranto cannot be used to quash acts already done by a usurper. Quo warranto is meant to prevent a continued exercise of authority unlawfully asserted and not to correct what already has been done under it or to vindicate private rights.
As far as the right of person to ask for refund of salaries or other benefits from a usurper to a public office is concerned, it cannot be determined in a proceeding for quo warranto. The said determination is an independent right and can be ascertained in appropriate proceedings according to law.
In the case of Naqeebullah Khan v. Malik Imran Khan and 6 others, reported in PLD-2006 Peshawar-21 it has been held as under:- The constitutional jurisdiction of this Court includes issuance of . writ in the nature of quo warranto; therefore, we shall first discuss the scope of our Jurisdiction. It was ruled in the "University of Mysore v. Govinda Rao AIR 1965 SC 491 while quoting a passage from H alsbury:-- "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim in order that the right to the office or franchise might be determined."
And observed: "........the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not."
31. It has been ruled in number of judgments from Indian jurisdiction including AIR 1952 Nag. 330, AIR 1952 Tr. C. 66, AIR 1957 Raj. 75, AIR 1961 AP 250 and AIR 1970 Raj. 184 that "any person could move the Court without alleging violation of any specific right of the applicant where the application is in respect of Public office". It is not disputed nor can be disputed that respondent is holding a public office as he is member of the Provincial Assembly. It is also not denied that the petitioner before us is a registered voter of the constituency which is represented by respondent in his capacity as Member of the Provincial Assembly. The case-law in support of proposition that writ can be issued on the application of any person where some interest lies, reliance was placed at: (i)PLD 1970 SC 98 (Lt. Col. Farzand All and others v. Province of West Pakistan); (ii)PLD 1975 Pesh. 146 (Khaista Gul v. Akbar Khan and 7 others); (iii)PLD 1982 Kar. 604 (Syed Arshad Hussain v. The Government of Sindh and 38 others)
(iv)PLD 1962 Lab. 231 (Abdul Aziz and others v. The State and others)
(v)1994 SCMR 1299 (Ghulain Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others)
32. An objection has been raised by the learned counsel for the respondent that in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, there is a bar of jurisdiction of all Courts. An election can only be challenged by filing an election petition before the Election Tribunal. One cannot disagree with the learned counsel for the respondent but that would be when the challenge is made to the election and not Case Judgment where it is; made to the qualification of the person holding public office. Otherwise, it is true under the Representation of the People Act, 1976; an election petition can only be filed by a candidate and by none else.
No doubt that ground of disqualification to be disqualified on the date of nomination or has become disqualified while holding office fall within the arena of jurisdiction of the Election Tribunal but for the purpose of filing of election petition by a candidate. A candidate has been defined under the Representation of the People Act, 1976: "Candidate" means a person proposed as a candidate for, or seeking election as a member.
"Contesting Candidate" means a validly nominated candidate who has not withdrawn his candidature.
Under section 52 of Representation of the People Act it is only a candidate who can file election petition.
33.Bar of Article 225 of the Constitution would not be attracted where a person having some interest furnishes information to the High Court and challenges the very holding of public office on the ground that respondent was disqualified to hold such public office.
34.Another objection that was taken by the learned counsel was that the question of disqualification can be raised at the floor of the Assembly with reference to Article 63(2) of the Constitution of Islamic Republic of Pakistan, 1973.
35.We doubt that contention of the learned counsel for the respondent would not hold field because sub-Article (2) of the Article 63 of the Constitution deals with a disqualification which might occur during holding of the public office. i.e. during membership of the Assembly. Here in this case, it is case of the petitioner that respondent was disqualified from being elected because he was not holding the requisite educational qualification on the date he filed his nomination papers.
36.Another legal objection that has been raised by the learned counsel for the respondent is that the present writ petition is not in the form of writ of quo warranto or is a mixture of writ of certiorari, mandamus and writ of quo warranto. Reference is made to the prayer part of the petition.
37, When learned counsel for the petitioner was confronted, he has prayed that his prayer made in para. 14 of the writ petition is no doubt in the form of mandamus but followed by a relief in the nature of quo warranto and this Court can confine itself if contention of the petitioner prevails to the extent of issuance of quo warranto and the rest is left to be followed as the law would prescribe.
Similarly, in the case of Hafiz Hamdullah v. Saifullah Khan and others, reported in PLD 2007 Supreme Court-52, wherein it was held as under:- (a)Constitution of Pakistan (1973)-- ----Art.199(1)(a)---Constitutional jurisdiction of High Court-- Scope---"Aggrieved person'---Connotation---Constitutional jurisdiction of High Court, under Art. 199(1)(a) of the Constitution, can be invoked by an aggrieved person, which denotes a person who has suffered a legal grievance, against whom a decision has been pronounced which has wrongfully deprived him or wrongfully refused to him something which he was legally entitled to-- -Further requirement is that the person invoking Constitutional jurisdiction under Art.199 of the Constitution has to establish that any of his legal or fundamental rights guaranteed under the Constitution has been violated resulting in legal loss.
(b)Constitution of Pakistan (1973)-- ----Art. 199(I)(b)(ii)---Writ of quo warranto---Scope---Aggrieved person--Person seeking writ of quo warranto---Locus standi--- Writ of quo warranto is in the nature of laying an information before a Court, against a person who claimed and usurped an office, franchise or liberty, requesting for holding an enquiry to enable him to show the authority under which he supported his claim of right to the office, franchise or liberty---Object of writ of quo warranto is to determine legality of the holder of a statutory or Constitutional office and decide whether he was holding such office in accordance with law or was unauthorizedly occupying a public office--Where a person prays for a writ of quo warranto, the Court would be under an obligation to inquire whether the incumbent is holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office-- For issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court under Art.199 of the Constitution is not required to fulfil the stringent conditions required for bringing himself within the meaning of an aggrieved person---Any person can move High Court to challenge the usurpation or unauthorized occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke Constitutional jurisdiction under Art.199 of the Constitution in the manner as generally required by this Article--Writ of quo warranto can be instituted by a person though he may not come within the meaning of word aggrieved person.
M. U.A. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Al-Jahad Trust through Raeesul-Mujahidin Habibul Wahabul Khairi v, Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliamentary Affairs Islamabad and others PLD 1998 SC 161 and Captain Retired Muhammad Naseem Ejazi v. Province of Punjab 2000 SCMR 1720 rel.
(c) Representation of People Act (LXXXV of 1976)- ----Ss, 14, 52 & 99(1) (a) (k)---Conduct of General Elections Order (7 of 2002), Arts. 8-D (2) (a) & 8-E---Constitution of Pakistan (1973), Arts. 63 (2), 199(1) (b) (ii) & 225--Petition for writ of quo warranto---Maintainability---Member of Provincial Assembly--Disqualification--High Court disqualified the returned candidate on a petition filed by a person who himself was not a candidate in election---Plea raised by appellant was that in view of the bar contained in Art.225 of the Constitution, High Court could not set aside the election--Validity--Appellant was not qualified to contest for the seat of Provincial Assembly in view of the provisions contained in Art.8- D(2)(a) of Conduct of General Elections Order, 2002, read with S. 99(i) (a) (k) of Representation of People Act, 1976, thus he was suffering from pre-election disqualification--Petitioner before High Court was not a candidate in general election held for electing members of Provincial Assembly, as such could not have recourse to Ss.I4 and 52 of Representation of People Act, 1976, nor any other remedy made available to him by any law, rules or regulations to challenge the election of appellant as member of Provincial Assembly, which emphatically claimed/described to be absolutely illegal and void---Only remedy available to the petitioner before High Court was by way of institution of a Constitutional petition praying for writ of quo warranto, requesting High Court to inquire from the appellant to show that under what authority or law he was entitled to hold the office of member of Provincial Assembly---Constitutional petition was maintainable before High Court. While passing the judgment reliance was placedKhuda Bakhsh v. Mir Zafarullah Khan Jamali 1997 SCMR 561; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 and PLD 2003 Quetta 94; Farzand Ali v. Province of Pakistan PLD 1970 SC 98; Masoodul Hasan v.
Khadim Hussain and another PLD 1963 SC 203; Rex v. Speyer 1916 IKB 595 rel.
Likewise in the case of Lt. Col. Farzand. Ali and others v. Province of West Pakistan through the Secretary, Department of Agriculture, Government of West Pakistan, reported in PLD 1970 Supreme Court-98, it was held that:-
(a) Constitution of Pakistan (1962), Arts. 98 & 171 --Quo warranto---Pre-election disqualification of member of Legislature--Whether can be questioned in writ jurisdiction. Where the argument was that once the name of a person has been registered on the roll of electors, his nomination paper accepted and he has been allowed to contest the election successfully, his election cannot be challenged in any other manner save under the specific law providing for challenging elections notwithstanding the fact that no provision has been made in the Constitution or any other law for prescribing a special procedure to meet such a case: Held, this contention is not acceptable for more than one reason: Firstly, because this would be allowing a person to continue to remain a member of an Assembly even though Article 103 of the Constitution says that he cannot. Secondly, because, the dispute raised after an election is not a dispute relating to or arising in connection with an election but a dispute regarding the right of the person concerned from being a member of an Assembly. An election dispute is a dispute raised by a voter or a defeated candidate in his individual capacity under the statute. It determines the private rights of two persons to the same office but a proceeding, for an information in the nature of quo warranto is invoked in the public interest. The latter seeks to determine the title to the office and not the validity of the election. These are two distinct and independent remedies for enforcing independent rights, and the mere fact that the disqualification has been overlooked or what is worse, illegally condoned by the authorities who were responsible for properly scrutinizing a person's right to be enrolled as a voter or his right to be validly nominated for election would not prevent a person from challenging in the public interest his right to sit in the house even after his election if that disqualification is still continuing. Indeed a writ of quo warranto or a proceeding in the nature of an information for a quo warranto, unless expressly barred by some statute, is available precisely for such a purpose.
The introduction of election petitions to test the validity of elections and statutory provisions for appeals, have no doubt reduced the demand for the remedy but have not excluded it altogether.
It will still be available in all cases where the matter is, as in the case under consideration, outside the scope of the statutory remedy. Thus, as stated in Halsbury's Laws of England, Third Edition, Vol. II, p. 148; "even in a case where an election petition is the only remedy when an election is objected to on the ground that the person whose election is questioned was disqualified at the time of the election, yet the remedy by injunction in lieu of quo warranto is available where er person becomes disqualified after election or where there is a continuing disqualification--in other words, where the objection is a continuous holding of the office by the person disqualified.
There is no reason why relief by way of quo warranto should not be available in a case where the remedy by way of an election petition is no longer possible or is not the appropriate remedy or the disqualification is a continuing one which debars a person not only from being elected to an office but also from holding that office.
The third reason for holding that a proceeding of this nature would not be barred in such circumstances is that there is nothing either in the Constitution of 1962 or in any statute for the provision of another remedy for rectifying such illegality. Clause (2) of Article 104 would not be attracted to a case of continuing liability, although under clause (2) of Article 103 the disqualification is not only a disqualification for election but also a disqualification from being a member or holding the office.
In this view of the matter it cannot be said that there is any adequate alternative remedy available within the meaning of clause (2) of Article 98 of the Constitution of 1962 to defeat the right given by sub-clause (b) (ii) of clause (2) of Article 98 to call upon any person holding or purporting to hold a public office to show under what authority of law he claims to hold that office.
To refuse the remedy in such a case would produce the strange result that the Court would be thereby perpetuating an illegality. Therefore, Article 171 of the Constitution of 1962 could not bar a proceeding under sub-clause (b) (ii) of clause (2) of Article 98 for challenging the title of the disqualified persons from continuing to hold the office of a Member of the National Assembly which is in every sense of the term a public office. While passing judgment reliance was placed on the following judgments.
Darley v. The Queen 12 Cl. & F 537; Rex v. Speyer (1916) 1KB 595; Halsbury's Laws of England, Third Edn., Vol. II, p. 148; The Queen v. Ireland (1868) 3 QB 130; Robert Frost v. The Mayor and Aldermen of the City and Borough of Chester 119 E R 578 and Ferris' Treatise on Extraordinary Legal Remedies, 1926 Edn., p. 133 ref.
15. In view of the above, we are of the view that writ of quo warranto under Article-199 of the Constitution of Islamic Republic of Pakistan, which provides that a High Court on the application of any person can make an order requiring holder of the public office within its territorial jurisdiction to show under what authority of law he claims to hold that office, could be issued. We are, therefore, quite sanguine that the petitioners are not barred from challenging the election and holding of public office, by invoking the writ jurisdiction of this Court. Writ of quo warranto could be issued on application of a person having some interest in the matter and being a citizen and for that matter a voter, he has every right to have honest, 'Ameen', 'righteous' and 'sagacious' person as his/their representative and for that matter election of elected candidate, if disqualified, could be challenged by filing election petition by contested candidate or by a writ of quo warranto by any voter of the area. Since the word candidate has been used in section-52 of the Representation of the Peoples Act, 1976, for the purpose of election petition, therefore, writ of quo warranto of the present petitioners, in the given circumstances are maintainable.
16. Since, the private respondent is still holding the public office by virtue of Elections of 2013 and till the time of holding the same, is a recurring cause of action and as such the principle of laches does not apply to writ of quo warranto.
17.Now coming to the merits of the case the petitioners are alleging that private respondent namely Mian Zia ur Rehman was a candidate from the same constituency in the General Elections of 2008 and again he contested from the same constituency in the General Elections of 2013. In his nomination papers, filed in General Elections of 2008, declared himself as graduate and in the nomination papers of General Elections of 2013, declared his qualification as matriculation, only.
The same allegations against the returned candidate i.e. Mian Zia ur Rehman were leveled by the un-returned candidate before the Election Tribunal in Election Petitions Nos.42/2013 and 2/2013, in which issues were framed and issues wise decision was made. It is important to mention here that the issue wise findings against the said returned candidate were not set aside or even discussed by the apex Court while allowing the appeal against the judgment of Election Tribunal and only on the point of maintainability of the election petition, in view of provision relating to verification of election petition, was discussed. The respondents in their written statement have not denied, specifically the contentions of petitioners nor have placed on record any document showing the contradictions of the facts proved in issuewise decision before the Election Tribunal and as such discussion on these would be appropriate and imperative while going through the decision on said issues before the Election Tribunal.
18.Issue No.4 before the Election Tribunal was "Whether the respondent No.1, on the nomination day was disqualified from being elected as a member of the Provincial Assembly, in view of the provisions of Article 62(1)(1) of the Constitution of the Islamic Republic of Pakistan read with Section 99(1)(f) of the Representation of People Act, 1976, for concealment of fact or making wrong declaration regarding his educational qualification?".
19.The quoted issue has been decided by the Tribunal after recording evidence of the parties and exhibiting the relevant documents on record in the following terms which are not denied by the returned candidate and neither the same were set aside or controverted by the apex Court in its judgment dated 27.1.2014 in C.Ps. Nos. 1308 and 1309 of 2013 and as such it would be imperative to read the same, which reads as under:- "This issue relating to the question of qualification or disqualification of the returned candidate is dealt with first in terms of Clause-7 of the ECP notification. Learned counsel for the petitioner argued that the election of the returned candidate / respondent No.1 is void on the ground that he was not on the nomination day qualified for being elected as a member of the Parliament or the Provincial Assembly. To augment his contention he alleged that the respondent No.1 had provided his educational qualification to be Matric in the relevant column of nomination form for the General Election 2013, whereas he in the preceding elections of 2008 filed nomination form giving B.A. as his educational qualification and that his candidature was liable to be struck down on the score of giving false/ incorrect declaration as to his educational background. He referred to judgment of the apex Court 2013 SCMR 1271, in that it has been held that any person who makes a false statement or give wrong information in respect of educational qualification, in his nomination form for election or with regard to any material particular, does not fulfill the criteria laid down by Article 62 of the Constitution. He next contended that the respondent No.1 had obtained B.A. degree from SAL being external candidate on the basis of Sanad Shahadatul Alia/Sanad ul Faragh from Madrasa Arabia Qasim ul Uloom Ghotki which is not duly recognized by the HEC and that the "Sanad" of Deeni Madaras" as claimed by him was fraudulently manufactured. He referred to the statement of Syed Khalil Ahmad Shah, Raeesl ul Madrasa (CW- 2) recorded by learned Senior Civil Judge, Ghotki as a local commissioner, in that he disowned the "Sanad Shahadatul Alia/Sanadul Faragh and stated that the respondent has never remained as student of his Madrasa; that no Sanad was given to him and that in this regard there was no record available in the Madraasa. On the other hand learned counsel representing respondent No.1 urged that his client has correctly stated in his nomination form 2008 that he was a graduate as the law then allowed only graduate to contest the election, the respondent No.1 in the relevant column has only mentioned that "Matric Sanad attached", which did not convey that he was qualified only up to Matric; that respondent No.1 still owned what he had stated in the nomination form 2008, as he, by omitting to mention his qualification of B.A. has neither gained anything in the election process nor caused prejudice to the petitioner on any other candidate nor has any reflection on his person to attract the provision of Article 62 of the Constitution. He submitted that the petitioner has not alleged in the petition that the respondent is holding fake Sanad of B.A. degree but has simply filing nomination papers of 2013; that these assertions were turned down by the Returning Officer as well as the Election Appellate Tribunal High Court in an objection petition and appeuz and, while accepting the ,nomination papers held that the qualification was not prerequisite for the upcoming general The contention of respondent No.l. is not tenable for the reasons that despite several opportunities, he omitted to bring on record any evidence either by examining himself or any one on his behalf in rebuttal of contention of the petitioner. In the circumstances, the evidence adduced by the petitioner remained unrebutted and unchallenged.
It is contended that respondent No.1 knew that his Sanad was fake, and the fear about its detention having lurked in his mind persuaded him to withhold it as well as the BA degree (that based on it) in the nominator form of 2013. The affidavit Ex.PW-1/1 sworn on 03.9.2013 and tendered by the petitioner in evidence is worthy of credence. In that he in unequivocal terms has stated that the respondent No.1 while contesting General Election held in the year 2008 made different entries in his nomination form qua his qualification on the basis of his BA degree from SAL, which differs from contents of nomination form filed by him to contest General Election, 2013, wherein he has inserted his educational qualification as Matric and as such his act is in violation of Article 62(1)(1) of the Constitution and thus he is not 'righteous' Sadiq' and 'Ameen" in terms thereof.
Nomination form by which the proposal is made under section 12 of the Act, is in form-1 (for General Seat) in terms of Rule-3 of the Representation of the People (Conduct of Elections) Rules, 1977 (hereinafter referred to as the rules) it inter alia contains declaration and oath by the person nominated. At SI. No.5 thereof a candidate has to disclose his educational qualification. The question that needs determination is as to whether the respondent No.1 is qualified or otherwise to contest elections of 2013 or not. In this regard it is noticed that while filing nomination form in the year 2013, Ex:PW-14, the respondent No.1 gave declaration and sworn an affidavit to the effect that he did not suffer from any disqualification and that his educational qualification is Matric only, but in the General Election held in the year 2008, he had posed himself as a graduate from ASL. Since, the respondent No.1 while filing his -nomination form for contesting General Elections 2013 had disclosed his educational qualification as Matric and despite holding of BA degree, non mentioning of the said fact in his nomination form to contest General Election 2013 amounts to making wrong declaration. Thus he is not 'righteous, 'Sadiq' and 'Ameen' within the meaning of Article 62(1)(f) of Constitution and as such was not qualified to be elected or chose as a Member of Parliament or the Provincial Assembly.
With regard to the genuineness of `Sanad Shahadatul Alia / Sanad-ul-Faragh' as claimed by respondent No.1 on the basis of which he managed BA degree from SAL, it may be noted that it was allegedly issued by Madrasa Arabia Qasim ul Hoorn, Ghotki Syed Khalil Ahmad Shah, Raeesul Madrasa when examined as CW-2 by learned Senior Civil Judge, Ghotki as a local commissioner stated that respondent No.1 has never remained a student of his 'Madrasa" that no Sanad was given to him and in this regard there is no record on the Madrasa.
Though learned Senior Civil Judge, Ghotki was appointed as local commissioner within tacit consent of learned counsel representing respondent No.1 who thoroughly cross-examined him and also paid commission fee; yet he filed objections and contended that the statement of the witness was recorded on SA and not on Oath hence, it was inadmissible in evidence. The objections are over ruled and the statement can be read in ,evidence inasmuch as the requirement of rule 8(a) of Order XXVI, C.P.C. have been fulfilled in letter and spirit. Moreover, omission to take Oath by a witness is an irregularity which does not invalidate the proceedings as well as the evidence in terms of section 13 of the Oath Act, 1873. It is pertinent to mention here that the course for obtaining Sanad Shahadatul Alia is normally completed within six years, but after passing the matriculation examination, in the year 1996 how could it be possible for the respondent No.1 to pass such a lengthy course within a short span of six / seven months. Thus genuineness of Sanad Shahadatul Alia/Sanadul Faragh that formed basis for BA degree by SAL produced by respondent No.1 to contest the General Elections in the year 2008 creates doubt in one's mind, the same being obtained without comAeting the educational course for the said Sanad. As far as recognition from SAL is concerned, it is not authorized to give equalization certificate as held by the apex Court in PLD 2013 SC-179. Therefore, it can be safely held that the "Deeni Sanad' relied on to by the respondent No.1 was the result of forgery which also affects his BA degree from SAL. Thus, the respondent No.1 is not 'righteous, Sadiq' , and Ameen' within the meaning of Article 62(1)(/) of the Constitution and as such he was not qualified to be elected or chosen as member of the Parliament or the Provincial Assembly.. Issue decided accordingly.
20. In addition to the observations and conclusion of the tribunal, issue-wise, we have before us the deposition of PW-1 namely Syed Khalil Ahmad Shah, In charge/Rias ul Madrasa Arabia Qasimul Uloom Ghotki Taluka and District Ghotki dated 31.8.2013 who was cross-examined in the Court and his statement so recorded is also imperative to be reproduced as the same is very relevant for the present controversy, which reads as under:- "Since last 20 years I am running Madarsa Arabia Qasim ul Uloom Ghotki, but the Madrasa is existing since one hundred years. The students for Hifzul Quran, Persian, Shahaditul Aama (Initial Arabia of Sanadul Faragh sent by Election Tribunal Abbottabad on the name of Mian Zia ur Rehman and I say that it was not issued by me and I have got no record to verify the said Sanad.
For education and for obtaining the Sanadul Faragh the period of education is one year. In the month of Shawal the student are getting the admission. According to the Higher Education Commission the Sanadul Faragh is being issued after total education of 14 years. I see Sanadul Faragh sent by the Election Tribunal Abbottabad which shows the date of birth of student Mian Zia ur Rehman viz. 14.06.1980 and the date of issuance of Sanadul Faragh is shown as 19.12.1996 therefore, the total age of Mian Zia ur Rehman at the time of issuance of Sanad was 16 years which is impossible and for complete course at least the age in which the student are completing the education for Sanadul Faragh is 24/25 years. The record of admission is misplaced in the year 2001 and there Sanadul Faragh sent by the Election Tribunal does not have any record even prior to misplacing the record of Madarsa in the year 2001 and I say that no record of result and no record of examination of Mian Zia ur Rehman exists."
21. Since private respondent has not placed on record anything showing that the documents which were evaluated by the Tribunal while recording' the evidence of all concerned, the authenticity and the eligibility of all those documents which are discussed and trashed out by the tribunal, seems to be acceptable under all the canon's of law and as such in the absence of any further documentation the said documents and findings in reference to the qualification etc of the returned candidate could not be decided otherwise, as held by the Tribunal.
In the case of Sardar Asmatullah Khan v. Moulvi Muhammad Sarwar and others reported in 2011 SCMR 107, it has been held that:- Representation of the People Act (LXXXV of 1976)--- ----S. 55---Higher Education Commission Ordinance VII of 2002), S. 10---Qualification of candidate--Equivalence of degree---Respondent was returned candidate and he held Sanad of Shahadat-ul-Alamia which was not issued by an institution duly recognized by Higher Education Commission---Plea raised by respondent was that he had subsequently passed two additional subjects--Validity--Respondent failed to produce any copy of certificate to the effect nor could he refer to any year or name of institute of passing two additional subjects as pleaded by him---No such document was placed for expert opinion before Higher Education Commission and it was stated by the Commission that Deeni Sanad held by respondent was not considered as equivalent to Graduation / Bachelor's degree by Higher Education Commission---Respondent was not holding a Deeni Sanad equivalent to Graduation / Bachelor degree, therefore, he was not qualified to contest general elections of 2008 for Provincial Assembly---Respondent though a returned candidate was not, on the nomination day, qualified for or was disqualified from being elected as a member and his election as returned candidate was, therefore, void-- Notification declaring respondent as returned candidate was set aside and Supreme Court directed Election Commission to issue election schedule for bye-election--Appeal was allowed.
Likewise, in the case of Muhammad Jameel v. Amir Yar and 6 others reported as PLD 2010, Lahore- 583, it has been held as under:-
(d) Constitution of Pakistan (1973)-- ----Art. 62(1)(f)---Specific Relief Act (1 of 1877), S.42---Scope and nature of Art.62(1)(f) of the Constitution---Words 'sagacious', 'righteous' honest' and 'ameen'---Meanings--- Declaration provided under Art 62(1)(I) of the Constitution can be sought by the opposing candidate or an aggrieved voter from the constituency and can invariably be granted by the Election Tribunal or the constitutional courts while hearing a matter arising out of election laws---'Court of law'--- Scope---No such declaration can be sought from civil court under S.42, Specific Relief Act, 1877-- Member of National Assembly, in the present case, in his nomination papers submitted for the National Elections, 2002 declared his educational qualification to be B. Coin, but the nomination papers submitted for the National Elections, 2008, he declared the educational qualification to be B.A. (B. Com. was not mentioned) while the latest nomination papers for the Bye-Elections, 2010 he described the qualification to be 'Educated', conveniently ignoring both B, Coin, and B.A. degrees-- -Conduct of the Member in giving different educational qualification in different nomination papers showed intentional non-disclosure of his educational qualification without any plausible reason---Mention of the word 'educated' instead of the degree allegedly obtained by him cast a dark cloud of suspicion on the sense of fairness and honesty of the Member---Resignation of the Member a day before the hearing before the Supreme Court was no less than a confession of repentance--Court can draw negative inference of the conduct of the person in such circumstances--Irrefutable evidence placed before the Election Tribunal and before the High Court did not cut a picture of the person who could be called righteous, honest or ameen by any stretch of imagination. Again in the case of Mian Najeeb ud Din Owasi and another v. Amir Yar Waran and others reported in PLD 2013 Supreme Court 482 i. has been held that:--
(a) Representation of the People Act (LXXXV of 1976)- ----Ss. 78(3)(d), 12 & I4---Constitution of Pakistan Arts. 62, 63 & 218(3)-- Implementation proceedings of the judgment of the Supreme Court in the case of Muhammad Rizwan Gill v. Mali Aziz and others PLD 2010 SC 828---Members of National and Provincial Assemblies and the Senate who .had submitted bogus/fake degrees (educational qualifications) at the time of getting their nomination papers during the general elections held in 2008-- Duty of Election Commission of Pakistan to de-nonf; such Members--- Scope---Supreme Court observed that when a Member of the Parliament was disqualified, before or after the election; on the account that he 'made a false declaration an his/her nomination form (stating) that he fulfilled the conditions laid down under Arts.62 and 63 of the Constitution, he would have no right to hold office as a Parliamentarian/Member of National Assembly/Provincial Assembly or the Senate, and in such a situation it was obligatory upon the Election Commission of Pakistan to proceed against such member by de-notifying him retrospectively, that once a person was disqualified on the basis of his own declaration under his signature, he could not plead or take that stand that as his prosecution was pending,. therefore. he might not be de-notified, that notwithstanding the fact that condition of being a ,graduate or having a degree of equal requisite academic skills was not available (i,e, applicable) after the general elections of 2008, yet if a candidate had declared himself to be a graduate, but it was subsequently found that he was not, then he would be liable to face the consequences under Arts.62 and 63 of the Constitution or other relevant provisions of the Pakistan Penal Code, 1860; that while making declaration in the nomination papers, a candidate must provide a crustal clear statement about his credentials and antecedents, therefore. whatever a candidate possessed in terms of academic qualification, bank credits and taxes etc. he should declare each and everything required for the qualification to contest t election; that no period of limitation was relevant for declaring a person to be disqualified because such disqualification was suffered at the time when Member had filed the papers by making a declaration, while having a fake degree in his hand; that regarding cases of Members which had been closed pursuant to their resignation or due to decision of different courts, or due to the condition of (bachelor's) degree being lifted, or because of other different grounds, such cases had to be dealt with (by the Election Commission) in accordance with the law and observations of the present case. Reliance was placed on the following judgment.
Muhammad Rizwan Gill v. Nadia Aziz and others PLD 2010 SC 828 and Muhammad Nasir Mahmood and others v. Federation of Pakistan through Secretary M/o Law PLD 2009 SC 107 ref.
Similarly, in the case of Abdul Ghafoor Lehri v. Returning weer PB-29, Naseerabad-II and others reported as 2013-SCMR-1271, herein it has been held as under:
(a) Constitution of Pakistan--- ----Arts. 62(1)(d) & (f)--Representation of the People Act (LXXXV of 1976), Ss. 99(1)(d), (e), (f), (g) & 14(3) Conduct of General Elections Order, 2002, Art. 8-A---Disqualification for membership of Majlise-Shoora (Parliament)---Sagacious, righteous, non-profligate, honest and amen---Scope-- -Making false statement or submitting false declaration in respect of educational qualification-- Fake educational degree-- Concealment of facts in regard to educational qualification--- Objections were filed against nomination of the candidate in question on the grounds that while contesting local bodies elections in the year 2001, he declared his educational qualification as Matric only but in the general elections held in the year 2002, he produced a fake Sanad-ul-Fragh (degree) issued by a madrassp (religious school), which ,according to the candidate was equivalent to a bachelor degree; that said sanad was not equivalent to a bachelor degree, and than candidate could not be said to be righteous, sagacious or ameen in such circumstances--- Returning officer accepted nomination papers of candidate despite the objections--Appeal filed before Election Tribunal was accepted and nomination. papers of candidate were rejected and he was declared ineligible to contest the general elections---Constitutional petition filed by candidate before High Court was also dismissed--Plea of candidate was that he was allowed to contest elections by the order of Supreme Court, and now that he had won the elections from the constituency, if he was disqualified, the voters of his constituency would be deprived of their constitutional right to choose a representative of their choie'e---Vcilidity---Candidate while filing his nomination papers for contesting local bodies elections in the year 2001 had disclosed his qualification as Matric only despite allegedly holding a Sanad-ul-Fragh--Non-mentioning of the said fact in his nomination papers to contest election in the year 2002 amounted to concealment of facts---Even otherwise, the course for obtaining the Sanad-ul-Fragh was normally completed within six years but after passing the matriculation examination in the year 1983, question was as to .how could it be possible for the candidate to pass the lengthy course within a short span of two years--Genuineness of Sanad-ul-Fragh produced by candidate to contest the general elections in the year 2002 was doubtful, the same being obtained without completing the educational course for the said sanad---Sanad-ul-Fragh was not at all equated with a bachelor degree, therefore, candidate was not a graduate within the meaning of Art.8-A of the Conduct of General Election Order, 2002, at the time of contesting elections in the year 2002, thus he was not qualified to be elected or chosen as a member of the Provincial Assembly---While producing Sanad-ul-Fragh candidate swore on an affidavit to the effect that said sanad was issued to him by a recognized institution and it was equivalent to a bachelor degree, therefore, he made a false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not 'righteous, sagacious, non-profligate, honest and ameen within the meaning of Art.62(1)(fl of the Constitution, and as such was not qualified to be elected or .chosen as a member of Majlis-e-Shoora--- Candidate knowingly and deliberately submitted a degree for becoming a parliamentarian which was not equivalent to a bachelor's degree, therefore, he had not only committed an offence by doing so but also defrauded the voters and the nation, as such, he failed. to meet the criteria for proposed candidates under Art.62(1)(d) and 09 of the Constitution and Ss.99(1)(d), (e), (f) & (g) of Representation of' the People Act, 1976--Findings of High .Court were correct---Appeal was dismissed, elections held in the constituency of the candidate were set aside and Election Commission was directed to hold fresh elections in the said constituency.
(b) Constitution of Pakistan-- ----Art. 62(1)(1)---Representation of the People Act (LXXXV o) 1976), S.99(1)0--- Qualification for membership of Majlis-e-Shoora (Parliament)-- Sagacious, righteous, non-profligate, honest and ameen-- Scope--Person who indulged into using unfair means to procure his educational qualification--Such a person could not claim to be an honest, righteous or ameen person so as to be assigned the high responsibilities performing national functions of running the affairs of country.
In the case of Malik Iqbal Ahmad Langrial v. Jamshed Alam and others, reported in PLD 2013 Supreme Court 179, it has been held that:-- Representation of People Act (LXXXV of 1976)-- ----S. 99(1)(cc)---Conduct of General Elections Order (7 of 2002), Art.8A--- Constitution of Pakistan, Art. 62(1)(i7---Election petition--Fake degrees presented for contesting elections--- Power of Court/Tribunal to declare a person as not sagacious, righteous or ameen for purposes of being elected or chosen as member of Parliament--Scope---Election Tribunal declared the appellant a person who was neither righteous nor honest and ameen on the grounds that; firstly, he was declared an imposter by the Provincial Election Tribunal regarding his claim of educational qualification at thetime of elections held in the year 2002; secondly, he was not holder of a sanad (degree) from a madrassa recognized by the Higher Education Commission; thirdly, two sanads (degrees) of Decni Madrassa (religious education institution) presented by him in the elections held in the year 2008 were fraudulently manufactured through dishonest means of forgery and fabrication; and lastly, he had not passed the two additional subjects as per law laid down by the Supreme Court---Validity---Regarding elections held in the year 2002, Provincial Election Tribunal had concluded that appellant was not a graduate and filed fake educational documents to pose himself a graduate to overcome the disqualification provided under S.99(1)(cc) of Representation of the People Act, 1976---During the elections held in the year 2008, appellant produced two sanads (degrees) of Deni Madrassa (religious education institution) to substantiate that he held a Bachelor's degree to become eligible to contest the election, however' after thorough examination of record and evidence, Election Tribunal held that both the sanad.s (degrees) were the result of forgery and fabrication--Appellant also could not produce any documentary evidence to prove his claim that he had passed the two additional subjects as per law laid down by the Supreme Court--Under Article 62(1)(f) of the Constitution there was no restriction upon the Court/Tribunal to declare any person to be not sagacious, righteous or ameen--Admittedly the appellant had used fake documents not only in the year 2002 but also in the year 2008 and also made a false declaration making him liable to criminal action--Spirit with which words sagacious, righteous, non-profligate, honest and ameen had been used by the Constitution for the eligibility of candidates contesting elections of National or Provincial Assembly could not be allowed to be frustrated by allowing entry into the doors of National or Provincial Assembly of persons who secured their educational documents through unfair means and were found guilty of such condemnable acts by the competent authority-- Appellant was not worthy of credence and could not be allowed to be entrusted with State responsibilities of law making or be given charge of the national exchequer or be, eligible to represent the people---Finding of Election Tribunal to the effect that appellant was not righteous, honest or ameen could not be expunged in circumstances---Findings of Election Tribunal were unexceptionable---Appeals were dismissed accordingly.
22. In view of the findings of facts in the judgment of the Election Tribunal dated 23.10.2013 and facts on record in the instant writ petitions, the returned candidate i,e, Mian Zia ur Rehman is not an honest and Ameen nor he is sagacious or righteous. The Article 62(1)(1) of the Constitution of Islamic Republic of Pakistan; 1973 reads as under:--
62. (1). A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless.
(a) ...............................
(b)...........................
(c)...............................
(d)...............................
(e)............................................
(f)he is sagacious, righteous, non-profligate, honest and amen, there being no declaration to the contrary by a court of law; and.
23. The judgment of the duly constituted Election Tribunal, on merits still holds the field, as the apex Court gave the findings in respect of non-compliance of the mandatory provisions of sections 54 and 55 of the Representation of the Peoples Act, 1976 by holding that the Election Petition was not properly verified on oath an as such the declaration of a competent Court/Tribunal, regarding the position of a educational F qualification, is in the field as yet. Even before this Court, the allegations that the returned candidate in his nomination form for General Elections of 2008 declared himself to be a graduate, while in the nomination form for succeeding General Elections of 2013, he had declared himself as Matriculate and that both these forms if juxtaposed would result in his disqualification. It is on record that in the nomination form, private respondent for the year 2013 by evading and concealing the educational qualification has disowned the declaration as made in the nomination form of 2008. The evasive declaration as given in the nomination forms of 2013 and 2008 clearly reflects that in 2008 nomination form his educational qualification as BA on the basis of a Sanad and that too; Shahadatul Alia, which was obtained in the year 1996, whereas he did his Matric in 1996, got admission in intermediate in Islamabad College for Boys, Islamabad, in the year 1996 but was found absent in Intermediate-part-I examination held in the year 1997 and then subsequently appeared but failed in 4 papers and finally purportedly did his BA in the year 2006, are baseless and fabricated. The said returned candidate/private respondent did his Matric in the year 1996 at the age of 16 years and strangely enough obtained Sanad Shahadatul Alia in the same year without obtaining/possessing two primary Sanads namely Shahadatul Sanvia Amma and Shahadult Khasa, but the same are missing and as such the Deeni Sanad i.e Shahadatul Alia that form basis for BA degree on the face of it seems to be fake one. In view of the facts on record as well as the decision of the Election Tribunal which is based on evidence recorded in the presence of the parties, specially the private respondent, on factual side the allegations so leveled by the petitioners are confirmed.
24. While summarizing the above facts on record, for issuance of a writ of quo warranto, the person invoking the jurisdiction of High Court, under Article-199 of the Constitution is not required to fulfill the stringent conditions required for bringing himself within the meaning of an aggrieved person and any person can move the High Court to challenge usurpation or un-authorization occupation of a public office by the incumbent of that office and he is not required to establish his locus standi to invoke constitutional jurisdiction under Article-.199 of the G Constitution in the manner as generally required by this Article. Being a voter of the constituency petitioners have the every right to challenge the occupation of the private respondent public office till the time he is holding the same. Record fully confirms that returned candidate is clearly hit by the Article 62(1)(f) of Constitution of Islamic Republic of Pakistan, 1973 and as such not entitled to hold the office. On acceptance of these writ petitions, added respondents arc directed to de-notify (he notification of the private respondent/Mian Zia ur Rehman from PK-54, Mansehra-II held on 11.5.2013 and the Election Commission of Pakistan shall proceed in accordance with law.