The powers to hear appeals against the order passed by Returning Officer relating to nomination papers have been delegated to the Members of Election Commission by Honourable Chief Election Commissioner of Pakistan by an order dated 1 January, 2003 which reads as under:-- No.F-3 (1) 2003. Cord.---In exercise of powers under section 13(5) of the Senate (Election) Act, 1975 (No.LI of 1975), the Chief Election Commissioner has been pleased to authorize Members, Election Commission to hear and decide the appeals filed against the order of Returning Officer for the Senate Election, 2003 from the Province/area noted against each: (1)Mr. Justice Muhammad Ashraf Leghari, Sindh Province.
(2)Mr. Justice Nasim Sikandar, Punjab Province.
(3)Mr. Justice Ahmed Khan Lashari, Baluchistan Province.
(4)Mr. Justice Qazi Ehsanulla Qureshi, N.-W.F.P. And FATA.
2. This appeal under section 13(5) read with subsection (6) of the Senate Act, 1975 (LI of 1975), is directed against the impugned order dated 27-1-2003, passed by the Returning Officer for Election of Senate 2003 (Sindh), Karachi whereby he has rejected the nomination papers of Ayaz Malik.
3. He filed nomination papers for contesting Senate Election on Technocrat/ Ulema Seat on the ticket of a (political party) National Alliance. He alongwith his nomination papers produced his certificate in Bachelor of Business Administration, issued by West Coast Institute of Management and technology Perth, Western Australia. It was sent to University Grants Commission. Now the Higher Education Commission for verification. After verification it was informed that the aforesaid University/College was non-accredited and as such the degree issued by the aforesaid Universityst was not recognized by the Higher education Commission as equivalent to corresponding degree from Pakistan.
4. Resultantly his form for contesting Senate Election was rejected by the Returning Officer vide order, dated 27-1-2003, as the requirements of section 8-A of the Conduct of General Election Order, 2002 [Chief Executive's Order No.7 of 2002] were to be fulfilled. The said Order is challenged in this appeal.
5. It is contended by Mr. Raja Qureshi earned counsel appearing for appellant that the nomination papers of the appellant have been rejected by the Returning Officer on the-- basis of report issued by (University Grants Commission) Higher Education Commission mentioning therein that the aforesaid University was non-accredited and as such the degree issued by West Coast Institute of Management and Technology Perth, Western Australia was not equivalent to the degree of Bachelor. He states that section 8-A contains 3 parts. The case of appellant does not relate to part 2 which is controlled by University Grants Commission Act, 1974 but the case of his client pertains to clauses 1 and 3 of section 8-A. He emphasizes that these 3 parts of the sections to be read disjunctively and not conjunctively.
6. It is stated that parts 1 and 3 of the aforesaid section applies to the case of appellant and first part and third part of section is not controlled by the Higher Education Commission and even if the West Coast Institute of Management Technology Perth, Western Australia was non-accredited it would not affect adversely upon the degree issued by the said college. According to the learned counsel the appellant is qualified to contest election to the Senate of Pakistan and qualification certificate produced by him does not suffer from any discrepancy. He is qualified from West Coast Institute of Management and Technology Perth, Western Australia. It is submitted that the Returning Officer has rejected his nomination paper in a mechanical manner without applying his mind holding thereby that the aforesaid college was non-accredited. Therefore, the degree granted by it was not recognized as equivalent to corresponding degree of B.A. In Pakistan. The impugned order dated 27-1-2003 is violative of the franchise right conferred upon the appellant from being elected as member of Senate. The three clauses enumerated in section 8-A are independent to each other and to be read disjunctively. The nomination papers of appellant are merely rejected on the ground that the University which issued the certificate to petitioner was non-accredited: According to the learned counsel the first and third clauses contained in section 8-A are supported by clause 2 and the term non-- accreditation would not be applicable in the instant case. Learned counsel in support of his arguments has placed reliance upon the cases of Pakistan Muslim League (Q) v.
Chief Executive of Islamic Republic of Pakistan, etc. C.P. No.29 of 2002 + (2002 PSC 1618); Awami National Party v. Chief Executive of Islamic Republic of Pakistan C.P. No. 30 of 2002; Pakistan Awami Party v. Chief Executive of Islamic Republic of Pakistan C.P. No.31 of 2002; Khuda-e-Noor, Senior Vice-President Jamhoori Watan Party v. Chief Executive of Islamic Republic of Pakistan C.P. No.32 of 2002; Ch. Muhammad Ilyas v. Chief Executive of Islamic Republic of Pakistan C.P. No.33 of 2002; Ejaz Ahmed Shaffi v. Federation of Pakistan and others C.P. No.1615 of 2002; Zafarullah Khan Domki v.
Saleem Jan Khan Mazari and others C.P.S. No. 1658 of 2002; Syed Ali Bux Shah v. The Election Tribunal and others C.P. No. 1626 of 2002; Abubakar Sheikhani v. The Election Tribunal and others C.P. No.1673 of 2002 and reported case of Ghulam Akbar Lasi and others v. Returning Officer for NA- 270 Awaran-cum---Lasbella at Uthal and another PLD 2003 Quetta 1 + PLR 2003 Quetta 316; Waqas Akram v. Dr. Muhammad Tahirul Qadri and others 2003 SCMR 145 + 2003 PSC 1.
7. Mr. Zaki Muhammad learned D.A.-G. Was issued notice to assist the Court. He stated that his arguments were same as that of in the previous matter. In fact the facts of instant case are different from the case which was argued earlier.
8. Learned counsel appearing for many of the respondents did not advance their arguments on the ground that they are formal parties in the appeal and they have nothing to argue.
9. I have heard the learned counsel at length, perused the material' available on record including the relevant notifications of Election Commission and the impugned order dated 27-1-2002 whereby the nomination papers of appellant were rejected by the Returning Officer.
10. The crucial point involved in this matter is' as to whether the academic qualification certificate produced by the appellant which had been issued by University marked as- non-accredited could be accepted and be treated as sufficient and equivalent to the degree of Bachelor.
11. For convenience sake section 8-A, Conduct of General Election Order, 2002 of the Senate Election is reproduced hereinbelow:-- "Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a Bachelor degree in any discipline or any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974 (XXIIII of 1974) (or any other law for the time being in force).
12.Perusal of section demonstrates that there are two parts of section 8-A one relates to possessing a Bachelor degree in any discipline or and the other one enumerates that any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974. First part of section does not speak of recognition but the second part of the section contains word recognized. The first part relates to the Universities which are already officially recognized by our Government as they are functioning under the Control of University Grants Commission. These Universities therefore, do not need any recognition and the academic qualification certificate issued by any College of University established in our own country is to be certified by the concerned College or University but not by University Grants Commission. But in the second part of section, the word used is recognized as equivalent by the University Grants Commission under the University Grants Commission Act, 1974. This part of the section implies that the Universities established in Foreign countries are to be recognized/ accredited by University Grants Commission, it is true that there are two clauses of the section and they are to be read disjunctively but the academic qualification certificates issued by foreign Universities are only covered by the condition imposed by the section that the said certificates should be issued by accredited Universities. In the instant case the academic qualification/certificate is issued by non-accredited University and the case of appellant is covered by the second part of the section. Word recognized in second part has a significant meaning which is not mentioned in the first part as the first part of the clause pertains to the Universities and Colleges which are established by our own Government and are already functioning under the control of (University Grants Commission) now Higher Education Commission.
13.Academic qualification certificate produced by the appellant was sent to High Education Commission and the report was sent on 24-1-2003 which reads as under:-- "Mr. Ayza Malik, Bachelor of Business Administration, West Coast Institute of Management and Technology, Perth, Western Australia is a non-accredited institute as such the degree held by Mr. Ayaz Malik is not recognized as equivalent to corresponding degree from Pakistan. "
14. Perusal of various cases cited at the bar display that the point agitated before me by the learned counsel for the appellant has not been finally resolved in these Constitutional petitions. The trend of orders indicate that the petitioners were given conditional relief for contesting the elections and the genuineness of their certificates was to be decided by the Election Tribunals in their regular appeals. In none of the cited cases it was held that the qualification certificate issued by the non-accredited College/University is to be accepted in view of Article 8A of Conduct of General Election Order, 2002. In these cases the point has also not been resolved that part I of the section relates to the non-accredited foreign Universities and the certificates issued by foreign Universities which are non-accredited are valid and fulfill the requirements of Article 8A.
15. The facts and circumstances of cited cases are distinguishable from the facts of instant case.
16. In view of clause (e) of sub--section (2) of section II of the Senate (Election) Act, 1975, the appellant is not qualified to contest the forthcoming Senate Election on General Seat. His form has rightly been rejected by the Returning Officer which does not call for any interference.
This appeal was dismissed by a short order dated 4-2-2003 and these are the reasons