1. ' As all these three petitions raise common issues of law, we propose to deal with them vide the same order.
2. 1 and 2. Briefly stated the facts in C.Ps. Nos. D-192 and 193 of 2003 are that the petitioners had filed their nomination papers for the forthcoming Senate Elections which upon scrutiny by the Returning Officer were not found to be satisfactory as the concerned Foreign Universities from which the petitioners obtained their Bachelor's degrees were not found to be accredited to the University Grants Commission. Consequently as both the petitioners were found not to fulfil the academic requirements under Article 8-A of the Conduct of General Elections Orders, 2002, their nomination papers were rejected. Both the petitioners filed appeals under Rule 36(a) of the Senate (Election)
3. Rules, 1975 before the Election Tribunal which were dismissed vide impugned order of the learned Member as the provisions of Article 8A of the aforesaid Order were to be read conjunctively, hence the order of the Returning Officer was upheld.
4. ' Mr. Mushtaq A. Memon learned counsel for Petitioner in C.P. No. 193 of 2003 has submitted that as per two decisions handed down by a Full Bench of this Court in C.Ps. Nos.1623 and 1626 of 2002, it has been held that the language used in Article 8A of the Conduct of General Elections Order, 2002 with regard to the educational qualifications of a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly is disjunctive in nature i.e. "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(XXIII of 1974) or any other law for the time being in force." Hence per learned counsel whether or not the petitioner was a graduate in any discipline is a question of fact to be determined by the Returning Officer upon a summary enquiry and it is totally different from the second portion of the aforesaid section viz. Recognized by the University Grants Commission, which only pertains to the equivalency. Hence in learned counsel's opinion this provision cannot be conjunctive. He, therefore, prayed that the petition be admitted and the impugned order passed by the Returning Officer as well as by the learned Tribunal be stayed and the petitioner be allowed to contest the forthcoming Senate Elections.
5. ' Mr. Raja Qureshi learned counsel for Petitioner in C.P. No.D-192 of 2003 has fully supported the arguments of Mr. Mushtaq A. Memon and has further added that it would be in the interest of justice at this stage to allow the petitioner to contest the forthcoming Senate Elections, otherwise the petition would become infructdous leaving the petitioner without any remedy.
6. ' On the other hand Mr. Nadeem Azhar Siddiqi learned D.A.-G. Has fully supported the impugned order and particularly drawn our attention towards the operative part of the same wherein it has been held that the aforesaid portions of Article 8A of the Order are conjunctive in nature.
7. We have heard learned counsel for the petitioners as well as learned Deputy Attorney General and have gone through the record with their assistance. In our opinion the words of Article 8A of the Order leave us in no doubt that the operative portion thereof viz. Regarding the condition of graduation and that regarding a Degree recognized as equivalent by the University Grants Commission are disjunctive in nature as held by two Full Benches of this Court in C.Ps. Nos. 1623 of 2002 and 1626 of 2002 . We would, therefore, submit these two petitions to regular hearing. We would also under the circumstances of the case allow the stay applications with the result that petitioners would be eligible to contest the forthcoming Senate Elections. The respondents and Election Commission are directed to include the names of the petitioners in the list of those contestants who aspire towards the Senate Elections.
8. ' We could now take up C.P. No.D-198 of 2003, where per the impugned order passed by the learned Member the petitioner's Bachelor's degree is again in question inasmuch as no degree as such had been presented by the petitioner before' the Returning Officer but on the application of respondent No.3 before the Election Commission it was found that the letters obtained by the petitioner from the concerned University (which had been approved by the Returning Officer) did not fulfil the requirement of Article 8A of the aforementioned Order and hence the petitioner's nomination papers were cancelled.
9. ' In the light of the foregoing circumstances, learned counsel for the petitioner firstly has fully supported the order passed by the Returning Officer where it has been observed that the petitioner had completed the requirements for his B.A. Degree per the letters from the University of Southern California and such degree would actually be sent to the petitioner after normal processing period which would take 6 months. Learned counsel hi this respect has referred to the two letters placed on the record dated 21-1-2003 and 3-2-2003 from one Dr. Patricia Riley who is the Director, School of Communication of the said University, which confirm the foregoing. Learned counsel has further submitted that the appeal/petition - filed before the learned Member is not maintainable firstly on the basis that the respondent No.
3. Is not an aggrieved person within the meaning of the aforesaid Act. Secondly the appeal as per sections 34 and 37 is only to be filed after scrutiny and there is no scope of any such appeal before the scrutiny period as was filed by the respondent No.3. Finally, learned counsel has submitted that per the decision of the Honourable Supreme Court in C.Ps. Nos. D-38 and 39 of 2002 the petitioners were allowed to contest the Senate Election, notwithstanding, the fact that they were specifically barred by doing so as they had not won any seat in the National and Provincial Assembly for which they were candidates. Learned counsel submits that whether or not the petitioner was qualified on the date of his nomination per Article 8A of the Order can still be determined but if he is debarred from contesting the election his fate would be sealed.
10. ' On the other hand Mr. Nadeem Azhar learned D.A.-G. Submitted that section 13(6) of the Senate Election Act 1975 empowers a Member of the Commission to reject any nomination paper of any candidate for the Senate if on the basis of any information or advice from any source he is satisfied that such candidate whose nomination papers have been accepted is inter alia a defaulter of loans, taxes, Government dues utilities charges or subject to any other disqualification for so being elected. Hence per learned D.A.-G. The application/petition whereby the respondent No.3 had challenged the acceptance of the petitioner's nomination papers could be entertained by the learned Member. On merits, the learned D.A.-G. Has submitted that from a bare perusal of the letters under consideration it would be clear that on the date when the petitioner submitted his nomination papers he did not possess a bachelors degree and since none has so far been produced by him. Learned D.A.-G. Placed great emphasis on the word "unless he is a graduate possessing a bachelor degree in any discipline" which form the operative portion of Article 8A of the Order. In this regard he has also referred to the operative portion of the impugned order whereby it has been held that the letters under consideration only postulate that the petitioner (respondent No.1) had completed the requirement for his Bachelor Degree in communication and that the diploma would be awarded after formal processing within approximately 6 months. This letter nowhere mentions that the petitioner had obtained a degree. Learned D.A.-G. Has therefore prayed that the petition be dismissed in limine.
11. ' Mr. Gohar Iqbal learned counsel appearing for respondent No.3 has fully supported the learned D.A.-G. And has further added that the petitioner has not approached this Court with clean hands inasmuch as according to the University itself the petitioner's educational record was forged and hence under investigation/ scrutiny. In this respect he has referred to the letter of one John Windier, Director, International Offices of the University of Southern California addressed to a Mr. Leighton dated 4-2-2003. Learned counsel therefore prayed that the impugned order be upheld and the petition be dismissed.
12. ' We have heard both learned counsel as well as learned D.A.-G. In our opinion, prima facie, it appears that the words used in the letters under consideration viz. "completed the requirement for his B.A. Degree in Communication" may or may not mean that on the date thereof viz. January 21, 2003 the petitioner was a graduate. In the circumstances, we are of the view that the question raised in the petition requires consideration and we would accordingly admit the petition for regular hearing. In the meanwhile, we would direct that the impugned order be suspended and the petitioner's name be included in the list of those candidates who have applied for the Senate Election. However, it should be clear at this stage that the during the course of hearing of this petition the petitioner would satisfy this Court that in fact on the date when his nomination papers were filed he did possess a bachelor degree and also that the documents submitted by him before the Returning Officer as well as before this Court were/are genuine. .
13. ' This petition is accordingly adjourned to 18-2-2003 and may be fixed according to roster. The foregoing order has been passed in presence of Mr. Atta-urRehman, Assistant Election Commissioner who is directed to comply with the same.