1. AKHTAR ZAMAN MAIGHANI,J--in this petition following relief has been sought for: It is accordingly respectfully prayed that his honourable Court, may kindly be pleased to declare that the orders dated 27.8.2002 and 12.9.2002 passed by the respondent No. 1 and 3 respectfully are illegal and passed in mis-exercise of jurisdiction as such having no effect, consequently nomination papers filed by the respondent No. 1 before the respondent No. 2 may be ordered rr 61/4: 'elected, beside directing for registration of a case against the respondent No. 1 with any other relief and cost of the petition in the interest of justice, equity and fairplay."
2. Matter pertains to election dispute. Petitioner and respondent No. 1 filed their nomination papers to contest the forthcoming general elections from the Constituency PB-23 Kohlu Agency, Kohlu for Baluchistan. Provincial Assembly. The nomination papers of the respondent No. 1 were accepted by the Returning Officer on 3.9.2002. Feeling aggrieved by the said decision, petitioner filed appeal (Election Appeal No. 81/2002) before the Election Tribunal Baluchistan, Quetta within the meaning of Section 14(5) of The Representation of People Act, 1976.
2. The learned Election Tribunal on 12.9.2002, dismissed the appeal after hearing the parties. The operative part of the order is reproduced hereinbelow:- "It may be pointed out that the instant proceeding being of summary nature, thus a detailed enquiry cannot be held at this stage by verifying the authenticity and validity of the certificate produced by the respondent No. 1. Two different certificates have been produced duly issued by the same authority. Since on the same analogy, we have allowed other petitions subject to all just exceptions. Since the appellant has alternate remedy by way of challenging the same before Election Tribunal also, therefore, we see no merits in this appeal, the same is dismissed. Parties are left to bears their own costs"
3. Now the petitioner has invoked the Constitutional jurisdiction of this Court, challenging the validity of the orders passed by Returning Officer as well as the Election Tribunal.
3. We have heard the arguments advanced by the learned counsel for the parties as well as learned Deputy Attorney General.
4. Learned counsel for petitioner raised following contentions:-
(i) That the respondent was not a Graduate and in order to meet with the requirement, a forged copy of graduation Degree was produced to the Returning Officer (respondent No. 2). Despite objections no inquiry was held and the nomination papers were accepted. He invited our attention to an application addressed to District Co-Ordinance Officer, wherein besides other objections it was stated that the Bachelor Degree of the respondent No. 1 is a forged one. According to learned counsel it was inadvertently addressed to D.C.O., however; the same was sent to the concerned Returning Officer on 31.8.2002 after making necessary endorsement on the objection application.
5. Further the learned counsel contended that reportedly the Returning Officer was out of Kohlu on the said date and returned in the evening of 3.9.2002, the day on which the nomination papers of the respondent No. I were accepted without deciding the objections raised as to the eligibility of the respondent No. 1.
(ii) At the time of hearing of the election appeal, the learned DAG placed a letter issued by the University of Punjab before the Tribunal to the effect that the bachelor degree of respondent No. 1 is bogus and such communication was received by the learned DAG through the office of the Provincial Election Commissioner, but despite the requisite verification made through the. Official source about the authenticity of the Bachelor degree; the learned Election Tribunal dismissed the appeal vide impugned order.
(ill) Also, another letter issued by the Controller of Examinations, University of Punjab, addressed to the Provincial Election Commissioner Baluchistan, Quetta was placed on record before the learned Election Tribunal showing the degree of the respondent No. I as bogus.
6. Letter dated 10.9.2002 purported to have been issued by the Administrative Officer (Certificate) has been illegally given preference over the official correspondence by the learned Election Tribal.
7. The Election Tribunal was bound to have made enquiry into the genuineness of the Degree which it failed to do by misconstruing the word "Summarily". In order to elucidate his arguments he referred to the Black's Law Dictionary 5th Additional wherein the word "Summarily" and "Summary proceeding" have been defined as under;- Summarily "Without ceremony or delay, short or concise." Summary proceeding: "Any proceeding by which a controversy is settled, case disposed of, or trial conducted, in a prompt and simple manner, without the aid of a without presentment or indictment, or in other respects out of the regular course of the ' common law,. In procedure, proceedings are said to be summary when they are short and simple in comparison with regular proceedings; e.g. Conciliation or small claims Court proceedings as contrasted with usual civil trial."
(vi) It was proved before the Election Tribunal through official letters quoted above that the Bachelor Degree produced by the respondent No. 1 was forged and bogus, as such; learned Election Tribunal had no option but to accept the appeal filed by the petitioner. By not doing so, in his view, the Election Tribunal failed to - lawfully exercise jurisdiction vested in it under the relevant statute.
(vii) In a number of petitions the learned Election Tribunal, in order to determine the genuineness of Degree recorded statements of concerned persons. By not doing so in the present case, the Tribunal has acted arbitrarily.
(viii) Even this Court is empowered' to record - evidence in order to resolve factual controversy while exercising Constitutional jurisdiction.
(ix) The Tribunal was wrong in holding that the petitioner had remedy under Section 52 of the (sic) on the day of (sic) Representation of People Act, 1976 by way of filing election petition because nomination papers of the petitioner. Were rejected by the Tribunal and he was no more candidate in election, as such; he could not file petition under Section 52 of the Act, Note:- It is pertinent to note that the learned counsel for the petitioner concluded his arguments on 23.9.2002 and the matter was adjourned to 24.9.2002, as copy of memo: of petition and annexures were supplied on the preceding night to the learned counsel for the respondent No. 1, accordingly; on his request to prepare the brief and filing of counter-affidavit, if so deemed fit and proper by the respondent No. 1; hearing was adjourned to 24.9.2002, on which date counter-affidavit on behalf of the respondent No. 1 was filed and copy of the same was given to the other side.
8. Subsequent to the matter having been adjourned to 24.9.2002, Constitutional Petition No. 484/2002, filed by the petitioner vide order dated 23.9.2002 was accepted and the order impugned therein passed by the Election Tribunal was set aside and the petitioner declared as a validly nominated candidate and appropriate relief was accordingly granted. Hence, in such view of the matter the ground No. (ix) noted above (sic).
(x) The factors/reasons found favour with the learned Election Tribunal in the impugned order neither collectively nor in segregation can sustain, inasmuch as; the last mentioned factor patently appears to be redundant and superfluous. Mr. M. Aslam Chishti strenuously argued that the appeal has been decided in a perfunctory manner and a non-speaking order has been passed which necessitates interference by this Court, as the learned Tribunal failed to decide the cause brought before it for adjudication and as the entire matter was open before the appellate forum therefore, it was obligatory for the Tribunal to have diligently and actively applied its mind to the only controversy required to have been decided effectively and substantially, but statutory obligation cast upon the Tribunal appears to have been avoided and for no legal and justifiable reason the dispute resting with regard to the authenticity of the degree or otherwise was not set at rest.
9. Elaborating his view point the learned counsel submitted that the Election Tribunal failed to comprehend the scope of its powers with regard to the resolution of election dispute with reference to its statutory duties.
10. PLD 1974 SC 139 + 1974 SCMR 530 + PLD 1987 SC 447 + PLD 1993 Lah. 595, PLD 1968 Lah. 403 and PLD 1978 Quetta 17.
11. 4(i) The learned counsel for respondent No. 1 by controverting the arguments advanced by the learned counsel for petitioner, vehemently disputed the facts narrated in the petition as well as urged before us. He strongly denied the filing of any objection by the petitioner before Returning Officer. According to him the letter relied by the petitioner was managed by him and disputed its authenticity. He invited our intention to letter dated 10.9.2002, annexed with the petition and issued by University of the Punjab verifying the Bachelor Degree of respondent No. 1.
(ii) The learned counsel further stated that this Court can, interfere in the order of the Election Tribunal, if the same is found without jurisdiction, coram non judice or based on mala fide and according to him none of the above-mentioned grounds are available in the present case. Further advancing his arguments, he contended that the proceedings under section 4(5) of the Act being summary in nature, the Election Tribunal was right In declining to hold a detailed enquiry in the matter. He objected on the maintainability of the petition on limited period, on the day of scrutiny of nomination the ground that the petitioner has an alternate remedy by filing election petition as provided by Section 52 of The Representation of People Act, 1976, and; the proceedings, to be conducted on filing of the election petition under the aforesaid Section, will not he summary in nature during, the course whereof a detailed inquiry including recording of evidence can be effectively made within the legitimate exercise of jurisdiction vesting in such forum as compared to the authority vested in the Election Tribunal within the purview of Section 14(5) of the Representation of People Act, 1976 wherein it has been provided that the same shall be summary in character and required to be disposed of within the specified time and limit, hence; by no stretch it can be expected of the Election Tribunal to have had made a detailed inquiry to satisfy itself on the basis of further evidence as to the genuineness of the Bachelor degree in the light of a bald allegation that the same is a fake and forged document.
(iii) Referring to the scope of powers vesting in the Returning Officer, Mr. Tanoli contended that on the basis of and in view of available material a Returning Officer is expected to decide about the genuineness of a document during the specified limited period on the day of scrutiny of nomination papers and for that, it cannot be expected from such forum to probe or to thrash out by going through the Govemment files to find out any particular fact,. Existence or non-existence of any factum merely on the basis of an allegation or any document being forged or fake but in the instant case even no objection to the authenticity of the degree produced in original with the nomination papers, was filed, therefore, in view of the available data including the documents annexed with the nomination papers, the Returning Officer legitimately and in the lawful exercise of powers accepted the nomination papers of the respondent No. 1 and secondly; in the given facts and circumstances of the case the Election Tribunal in absence of any other authentic proof placed on record appropriately and within- the lawful exercise of powers decided the appeal filed by the petitioner in view of the documents, produced before the Returning Officer, hence; the plea that the objection purportedly filed with the Returning Officer were not disposed of by the Tribunal, is devoid of any substance, rather; no decision was even required to be made by the Tribunal in respect of a non-existing alleged fact hence; the jurisdiction conferred upon the Election Tribunal has to be approached and seen in the light of the available 'material, admitted documents and the disputed documents/material, so; in view of the foregoing grounds and reasons Constitutional jurisdiction of this Court cannot be invoked by the petitioner on assumption of certain facts.
12. (iv). Without prejudice to any other ground and contention, noted above, the petitioner being fugitive from law, cannot ask and claim for equitable relief by invoking Constitutional jurisdiction, who as yet did not submit and' surrender to a Court of law being a proclaimed offender.
(v) Also without prejudice to the submissions made by the Mr. Ashraf Khan Tanoli contended that in view of the facts as it exist on record, this is a case of its own nature,, in which even no inquiry into the allegation for the first time urged before the Tribunal, was called for nor can be contemplated, hence; the impugned order is unexceptionable and is not open to any interference in the exercise of extraordinary jurisdiction vesting in this Court, which by no stretch can result in defrenchising the petitioner, moreover; at this stage two weeks time period hardly has been left over for the General Polls and in any case if the petitioner feel genuinely that the respondent was disqualified to contest the election, he can still resort to the provided statutory remedy after the elections are over.
13. The learned DAG submitted that no doubt on the date of hearing of arguments, document received by him i.e. Letter dated nil by courier service on 12.9.2002 purportedly issued by the assistant Controller (Certificate) University of Punjab to the effect that copy of the degree provided to the said office in respect of Mohabat Khan son of Fateh Khan pertaining to BA, Annual Examination, 1986 under Roll No. 33083 has been checked/tallied with the relevant record and found as bogus, was produced before the Tribunal, however; the learned DAG submitted that he is unable to claim authenticity and genuineness of this document and secondly; he explained that earlier too in some matters had to make certain queries and sought for verification of documents and in turn he .Received official communication etc. In response thereto but subsequently; the same were found as fake and bogus, hence; the learned DAG categorically submitted that he simply placed on record the abovesaid documents without claiming any authenticity or genuineness of such document, because according to him an interested person can manage making a fake response by transmitting document through courier service or by any other mode.
14. In such view of the matter, the learned DAG submitted that since he was required to assist the Court therefore, he has placed all the cards and similar submission was made by him even before the Election Tribunal. The learned DAG further contended that in a case of like nature; the burden heavily lies on the party alleging any document to be fake or forged; to produce evidence of unimpeachable quality, which in the instant case is lacking, hence; on assumption of facts it could not have been held that the Bachelor decree produced by the petitioner was a fake document.
15. Further the learned DAG contended that no case within the laid down parameters has been made out by the petitioner and in such behalf he made reference to the judgment of this Bench passed in Constitutional Petition No. 477/2002, as according to him the impugned order is neither coram non judice nor without jurisdiction and also on mala fides has been alleged hence; the instant Constitutional Petition has incompetently been filed and is liable to be dismissed . He also made reference to the meaning and definition of the word ' Summary' as given in the Dictionary Second Edition compiled by William C. Burton of ' Legal Thesaurus' which reads as under:- Summary:- "Concise, :direct, done without delay expeditious, hasty, hurried, immediate, instantative, prompt, quick, quickly executed, quickly performed, rapid, speedily, sudden, swift."
7. The learned A.A.G. Adopted the arguments put forth by the learned DAG.
8. We have given anxious attention to the respective contentions raised by the learned counsel for the parties.
16. Both the learned counsel have placed on record two different documents, disputing genuineness of the documents placed on record by the opposite party. According to the learned counsel for the petitioner the. Bachelor decree produced by the respondent No. 1 was a bogus document and to substantiate his arguments he relied upon the letter of University of Punjab dated 4.9.200 addressed to the Provincial Election Commissioner Baluchistan, Quetta and the letter placed by DAG before the learned Election Tribunal. In view of the categoric statement of learned DAG about the genuineness or authenticity of the letter produced by him, the documents relied upon by the petitioner have become disputed documents and no reliance can be placed upon these documents without proof of their genuineness. On the other hand, the learned counsel for the respondent made reference to a letter dated 10.9.2002, stated to have been issued by the Administrative Officer (Certificate) of the University of Punjab as well as copy of the Bachelor degree attested by the Administrative Officer of the University of Punjab. In such a situation, it was not possible for the learned Election Tribunal to reach to a definite conclusion without holding an elaborate inquiry and providing opportunity to the parties to prove their respective contentions through evidence, which in our opinion is not permissible under Section 14(5) of the Representation of People Act, 1976, for proceeding being of a summary nature.
17. It may be observed that in appropriate cases no doubt the Election Tribunal is empowered to resolve an election dispute on the basis of existing material and hold a limited inquiry as it may deem fit and proper within the limited time span else; the appeals, if any; pending and not decided within the time schedule shall stand rejected within the meaning of Section 14(6) of the said Act, but in the instant case exercise of such powers directly depends as to whether the Election Tribunal was required to have made any further inquiry in the light of the available material or otherwise. It may be observed that no authentic document i.e. Certified copy or any other material has been annexed or placed on record of this Constitutional Petition to prima facie satisfy that objection application was in fact filed or forwarded to the Returning Officer and he did not dispose. Of the same and more particularly for the reason that in the counter-affidavit filed by the respondent No. 1, the alleged fact regarding forwarding of the objection application has been seriously controverted, therefore, in such factual aspect of the matter it cannot be safely assumed that objection application was pending with the Returning Officer and was not disposed of as regards the plea of the Bachelor degree of the respondent No. 1 to be treated as fake and forged document, therefore, the learned Election Tribunal in our estimation was expected to have exercised jurisdiction for the purpose of holding of even limited inquiry in the light of documents or objection, if any; produced at the time of scrutiny of nomination papers to the Returning Officer and therefore, no such material or objection as it appears having been filed or forwarded as contended; to the Returning Officer cannot for the first time be urged or agitated in appeal before the Election Tribunal. Moreover; assuming in the light of the contention that any such objection if was filed with the Returning Officer, will remain inconsequential as the learned DAG categorically submitted before this Bench that he does not claim any authenticity of the document received by him through courier service purportedly issued on behalf of the Controller of Examinations, University of Punjab to the effect that the Bachelor degree of the petitioner is a fake and bogus document. He also made reference to his past experience that on his reference in some other cases fake documents were transmitted to him, therefore, he expressed his inability to claim genuineness and authenticity of the document, placed by him before, the Tribunal, except that since he received the document accordingly the same was placed on record. In view of such categoric statement it was hardly conceivable on the part of the Election Tribunal to have defrenchised the respondent No. 1 on the basis of such document, which too was controverted before the Election Tribunal on behalf of the respondent No. 1 as well as before us and to supplement the plea another document was placed before the Election Tribunal on behalf of the respondent No: 1 referred to above verifying and certifying that the respondent No. 1 had appeared in the BA Annual Examination, uncle' the given roll number an have passed the examination from the University. Of Punjab, therefore, as well as in view of the contentions and the counter-affidavit filed on behalf of the respondent No. 1, we feel inclined to hold that the learned Election Tribunal appropriately on the basis of existing material produced with the nomination papers rightly refused to defrenchise the respondent No. 1. Also, since both the documents produced by either side is disputed and controverted by the other side; within the limited time span meant for the disposal of appeals, the last date being 13.9.2002 in all probabilities it was not apparently possible for the learned Tribunal to have even embarked upon for holding of further inquiry with regard to the genuineness or otherwise of these documents i.e. Placed on record by the learned DAG and the petitioner, therefore, the contention raised by the petitioner's learned counsel that in similar nature of cases- some inquiry/probe was made, cannot be made application to this case, as arguments were advanced on 12.9.2002 before the Election Tribunal and on the same day the appeal was decided and reportedly the other remaining appeals were decided by the learned Election Tribunal on 13.9.2002 being the last date' for the disposal of appeals, as per schedule, issued by the Election Commission of Pakistan. Secondly; as hereinabove noted since there is nothing available on record to assume, that objections in writing were forwarded to the Returning Officer by the DCO or filed with the Returning Officer, therefore, in absence of any such material, available or produced before the Returning Officer, it cannot be expected of the Election Tribunal, as contended' before us, to have exercised jurisdiction for deciding the objections, which never were filed or available with the Returning Officer and thirdly; for the reason that against acceptance of nomination paper of the respondent suo motu powers were not exercised by the election Tribunal within the purview of subsection (5-A) of Section 14 of Representation of People Act, 1976 and the grievance was brought in the shape of appeal before Election Tribunal, therefore, burden heavily lay upon the petitioner to have proved to the satisfaction of the Tribunal that any such objection was filed or forwarded to the Returning Officer and thus; it cannot be said that the learned Tribunal failed to exercise jurisdiction in not deciding the objections. Moreover; in view of given facts and circumstances of the case referred to above after the elections are over, which are schedule to be held on 10th October; 2002, the petitioner has a statutory remedy for the redressal of his alleged grievance within the purview of Section 52 of the said Act, therefore, in consideration of the above-mentioned facts, we; are of the view that writ jurisdiction cannot be appropriately invoked for making probe into controversial facts based upon two conflicting documents and the equitable relief sought for resulting into defrenchising the respondent No. 1 cannot thus be allowed to be availed, particularly when the order passed by the Election Tribunal, does not suffer from lack of jurisdiction , legal impropriety, coram non judice, etc., as held in the case of Ghulam Mustafa Jatoi (1994 SCMR 1299) and followed by us in the judgment passed by this Bench in Constitutional Petition No. 477/2002. Also it has been argued that the decision rendered by the Election Tribunal is arbitrary, as it lack application of mind as well as the reasons found favour with the learned Tribunal are illusory an without any substance; is devoid of any merit for the reason that in the given facts and circumstances of the case referred to above, the appeal filed by the petitioner in no case would have resulted otherwise, hence; the dismissal of the appeal on any other ground or reason mentioned in the impugned order could not thus result in upsetting the order passed by the learned Tribunal, therefore, in such view of the matter, we; do not deem it fit and proper to examine the reason Qn which the impugned order has been based as the ultimate result for upsetting or reversing the impugned order cannot be other than that arrived at by the learned Tribunal in view of the existing/available material, hence; we refrained to inquire into the reasoning found favour with the Tribunal and more particularly that the order passed by the Returning Officer accepting nomination paper of the respondent No. 1, does not suffer from any illegality or impropriety and thus; the decision impugned herein can hardly be termed as arbitrary.
18. For the foregoing reasons the case-law cited by the petitioner's learned counsel, are of no practical assistance to his contentions in view of the peculiar facts of the case, discussed hereinabove.
19. Thus; in the light of what has been stated above vide our short order dated 24.9.2002 this Constitutional Petition has been dismissed as being without any merit and these are the reasons of our above-mentioned order .