ABDUL HAMEED DOGAR, J.---By this judgment, we propose to dispose of Civil Appeals Nos.1 and 5 of 2004 as they arise out of common judgment, dated 16-1-2004 passed by a learned Judge in Chamber of the High Court of Sindh, Karachi (hereinafter referred to as "the Tribunal"), whereby Election Petition No,35 of 2002 filed by Respondent Shaukat Ali Rajpur was allowed and the election of Appellant Bashir Ahmad Bhanbhan was declared void with the direction for payment of cost amounting to Rs,25,000 to defeating candidate Shaukat Ali Rajpur.
2. Briefly stated the facts of Civil Appeal No,1 of 2004 are that appellant Bashir Ahmed Bhanbhan contested election to the seat of Provincial Assembly Sindh from PS-31, Khaipur-III. Respondent Shaukat Ali Rajpur and others contested the said election which was held on 10-10-2002 in which Appellant Bashir Ahmad Bhanbhan secured highest number of votes and was declared successful by the Election Commission of Pakistan vide Notification, dated 20-10-2002. The Appellant Bashir Ahmad Bhanbhan had filed his nomination papers on 26-8-2002 and had annexed true copy of the Degree awarded to him by the University of Sindh, Jamshoro (hereinafter referred to as "the University"). According to which Appellant Bashir Ahmad Bhanbhan had appeared in the Bachelor of Art Examination held in 1983 and had qualified the same. Respondent Shaukat Ali Rajpur raised objection to the degree of the appellant before the Returning Officer for PS-31. However, on the day of scrutiny, respondent Shaukat Ali Rajpur on seeing the original certificate with the seal of the University got satisfied and withdrew his objection. Accordingly, the Returning Officer accepted the nomination form of the appellant Bashir Ahmad Bhanbhan by order, dated 29-8-2002.
3. Respondent Shaukat Ali Rajpur feeling dissatisfied, filed Election Appeal No,60 of 2002 under section 14(5) of the Representation of the Peoples Act, 1976 (hereinafter referred to as 'the Act') before the Tribunal, wherein he raised the plea that appellant Bashir Ahmad Bhanbhan did not qualify and his nomination papers be rejected on the ground for producing a forged and fake degree which was, however, not entertained but was dismissed on 13-9-2002.
4. Respondent Shaukat Ali Rajpur feeling still dissatisfied, challenged the election of appellant Bashir Ahmad Bhanbhan before the Election Commission of Pakistan against appellant Bashir Ahmad Bhanbhan and respondents No,2 to 6, namely, S. Shahabuddin Shah alias Syed Dindar Ali Shah Rashdi, Syed Irshad Raza Shah, Arbab Shahid Bhanbhan, Zafar Hussain Khaskhaili and Muhammad Nawaz Bhanbhan through election petition which was referred for trial under subsection (2) of section 56 of the Act to the above mentioned Tribunal, which was numbered as Election Petition No,35 of 2002. Wherein he reiterated the ground that appellant was not qualified to contest the election as he was not a graduate on the day of filing of nomination papers within terms of section 8-A of the Conduct of the General Election Order, 2002 and had annexed a fake and forged degree along with his nomination papers.. He had also pleaded herein that the voters of the constituency generally knew that appellant was not a graduate and the degree/certificate filed by him along with his nomination paper was bogus and fake, thus he may be declared duly elected.
5. The matter came up for hearing before the above Tribunal. The appellant contested the petition whereas rest of the respondents was declared ex parte. The appellant filed his written statement wherein he controverted the above allegations and stated that he was a graduate and possesses true and verified degree/certificate viz. Pass certificate of Bachelor of Arts bearing No,001611 from Book No,17 with Seat No,1910 for the year 1983, verified with special seal of Assistant Controller of Examination of the University, therefore, the question that the voters of the Constituency generally knew that he was not a graduate did not arise. He further averred that Notification, dated 21-10- 2002 issued by the University about his certificate being bogus and false, was arranged and manipulated by respondent Shaukat Ali Rajpur in connivance with the concerned authority of the University with mala fide intention. He also raised the plea that the Election Petition was hit by principles of res judicata.
6. From the pleadings of the parties, the following issues were framed.
(1) Whether petition is hit by principle of res judicata?
(2) Whether respondent No,1 is a graduate from University of Sindh Jamshoro or not? If so to what effect?
(2) Whether respondent No,1 on the day of nomination, was disqualified from being elected as a member of Provincial Assembly within the meaning of relevant law?
(4) Whether respondent No,1 is guilty of corrupt practices? If so with what effect?
(5) To what relief petitioner is entitled?
(6) What should the order be?
7. Respondent Shaukat Ali Rajpur examined himself as P.W.1 and produced photocopy of notification, dated 20th October, 2002 publishing the name of appellant Bashir Ahmed Bhanbhan as returned candidate, certified true copy of Nomination Paper of appellant Bashir Ahmed Bhanbhan along with true copy of order, dated 29th August, 2002 of Returning Officer, PS-31, certified true copy of Election Appeal No,D-60/2002, certified true copy of application under section 8-A of the Conduct of General Elections Order, 2002 in Election Appeal No,D-60/2002 along with copy of Notification bearing No, Exam/Sec:/ Verification/1261, dated 2-9-2002, certified copy of affidavit in Election Appeal No,D-60/02, certified true copy of order, dated 13-9-2002 and photocopy of Letter bearing No, R/PA/1679, dated 29-10-2002. P.W.2 Dost Muhammad, Assistant Controller of Examinations (Secret), of the University who produced Notification bearing No, Exam/Sec:/ Verification/1261, dated 2-9-2002, photocopy of letter of In charge Investigation Team Police Station Market, Hyderabad, attested copies of the extracts showing attendance of students on different dates of BA Pass Examination, 1983, attested copy of page No,101 of true result which was originally pasted on the two sets of Ledger/Register, photocopy of certificate bearing No,001580 in the name of appellant Bashir Ahmed Bhanbhan, copy of said certificate with original verification/stamps, photocopy of Certificate bearing No,00611 in his name, original of said certificate and marks sheet/certificate. P.W.3 Dr. Saeed Ahmed Soomro, Registrar of University who produced letter, dated 29-10-2002, and thereafter Respondent Shaukat Ali Rajpur closed his side.
8. However, the Appellant Bashir Ahmad Bhanbhan did not produce evidence and his counsel closed his evidence vide statement dated 16-9-2003. After two days, he himself moved an application, dated 18-9-2003, seeking permission to record his evidence on the ground that he had not been able to contact his counsel who closed high evidence without his instructions which application was allowed with no objection of respondents' counsel as token of goodwill but even then appellant showed his reluctance and took refuge on the pretext that due to some difficulty in talking, he is unable to record his evidence.
9. On conclusion, the Tribunal allowed the petition and declared the election of Appellant Bashir Ahmed Bhanbhan as void. He was also directed to pay a cost of Rs,25,000 as compensation to the respondent Shaukat Ali Rajpur. However, the learned Tribunal declined to declare Respondent Shaukat Ali Rajpur as duly elected and ordered for reelection.
10. As regard the facts of Civil Appeal No,5 of 2004 filed by respondent Shaukat Ali Rajpur are that since the learned Election Tribunal has decided issues No,2 and 3 against Appellant Bashir Ahmad Bhanbhan and had come to a definite conclusion that Appellant Bashir Ahmad Bhanbhan was not a graduate on the day of filing of nomination paper and was not only disqualified but also guilty of corrupt practices, as such, Respondent Shaukat Ali Rajpur should have been declared as duly elected.
11. We have heard Mr. Waseem Sajjad, learned Senior Advocate Supreme Court on behalf of Bashir Ahmed Bhanbhan and Raja Muhammad Ibrahim Satti. Learned Advocate Supreme Court on behalf of Shaukat Ali Rajpur at length and have gone through the record and the proceedings in minute particulars.
12. Mr. Waseem Sajjad, learned Senior Advocate Supreme Court for Bashir Ahmad Bhanbhan appellant in Civil Appeal No,1 of 2004 at the very outset advanced his arguments on the legal aspect of the matter at the first instance. According to him, the Tribunal was bound to reject the petition for non-compliance of the provisions of subsection (3) of section 55 of the Act. He argued that in fact the election petition was not verified as required under subsection (3) whereby the contents of the election petition, every schedule or annex to that petition shall not only be signed by the petitioner but be verified in the manner laid down in Civil Procedure Code for the verification of pleadings. Since the annexures filed along with the petition are neither signed nor verified in accordance with the Order VI, rule 15, C.P.C. And subsection (3) of section 55 of the Act, the very election petition is liable to be dismissed under section 63 of the Act. He argued that the petition in question on the face of it shows that its entire contents have not been verified as required under the law but only its last paragraph has, been verified on oath and solemn affirmation, thus the provisions of sections 54 and 55 of the Act shave not been complied with. On this aspect of the matter, he placed reliance on the cases of Sheikh Mushtaq Ali, Advocate v. Khalid Anwar (1999 M LD 1533) and Engr. Iqbal Zafar Jhagra and others v. Khalilur Rehman and 4 others (2000 SCM R 250).
13. On the factual aspect of the case, Mr. Wasim Sajjad, learned Senior Advocate Supreme Court, contended that Appellant-Bashir Ahmed Bhanbhan had atually appeared in the examination and obtained a valid degree which was not questioned insofar as the stamp and signatures of Assistant Controller (Examinations) of the University are concerned. According to him, the Tribunal had failed to take into account that the University record was under the exclusive control of University authorities and Appellant Bashir Ahmed Bhanbhan had no access to the same. It was on the behest of the Respondent Shaukat Ali Rajpur, the record was tampered with by the staff of the University so that Appellant Bashir Ahmad Bhanbhan be unseated. Learned counsel further argued that the evidence of P.W. Dost Muhammad is not worthy of reliance as it was he who issued the certificate under his own signature in favour of the Appellant Bashir Ahmad Bhanbhan and frankly admitted in the evidence that degree issued in his favour bears his signature as verifying officer and also bears genuine stamp of the University.
14. On the other side, Mr. Muhammad Ibrahim Satti, learned counsel for Respondent Shaukat Ali Rajpur, controverted the above _ contentions of the appellant's counsel and argued that the election petition was duly verified on solemn affirmation in accordance with the provision of Order VI Rule 15, C.P.C. And subsection. (3) of section 55 of the Act, thus the contention raised by the other side that mandatory requirements of law were not complied with, is without any force. He argued that not only the petition was verified but the affidavit in support of the petition was also filed by the Respondent Shaukat Ali Rajpur, petitioner in the election petition. According to him it was on the direction of Election Commission, the Registrar of the University conducted inquiry and found the so-called certificate bearing No,1580, dated 22-8-2002 issued by Controller of Examination of the University in favour of Appellant Bashir Ahmad Bhanbhan as bogus and false. This being in clear violation of mandatory provisions of section 8(A) of Conduct of Election Order, 2002, the appellant is guilty of corrupt practices as contemplated under section 78(3)(d) of the Act as such the election was rightly declared as void. Irrespective of the above, Respondent Shaukat Ali Rajpur from the beginning of the election process, has raised the plea that the Appellant Bashir Ahmad Bhanbhan was not a graduate, thus his disqualification being notorious in nature, he was liable to be declared duly elected in view of the provisions of section 69 of the Act. In support he has placed reliance upon the case of Iqbal Zafar Jhagra referred supra.
15. As regard the first legal objection raised by Mr. Wasim Sajjad, learned Senior Advocate Supreme Court that the petition should have been dismissed by the Election Tribunal for non-compliance of the provisions of section 54 and 55 of the Act, it is suffice to say that petition does not suffer from legal deficiencies as agitated above for the following reasons:--
(1) The very petition on the face of it contains at the end, verification clause wherein it is specifically stated that Respondent-Shaukat Ali Rajpur hereby states on oath and solemn affirmation that whatsoever has been stated hereinabove is true and correct to the best of his knowledge and belief. The word hereinabove refers to the entire contents of the petition, leaving no ambiguity of any sort. Moreover the affidavit of the respondent duly verified by the Commissioner taking affidavit was attached in support of the contents of petition. As regard the annexures and documents filed along with the petition the same have been signed and attested by the Advocate as well as by the Returning Officer. Subsection (3) of section 55 of the Act clearly stipulates that the petitioner shall sign election petition and schedule or annex to the petition and verify in the manner as laid down under Order VI Rule 15 of the C.P.C. According to this provision of law every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
Apparently in the case in hand, the above provision of law has been complied with and the petition has been verified in accordance with law. Even otherwise, the documents viz. Notification issued by the University and certificate issued by the Registrar of the University declaring the degree of the appellant as bogus and other certificates annexed with the petition are public documents which do not require any sort of verification. Public documents have been defined in Article 85 of the Qanune-Shahadat Order, 1984 as follows:-- "(1) documents forming the acts or record of the acts-
(i) of the sovereign authority;
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of Pakistan. Or of a foreign country;
(2) public records kept in Pakistan of private documents;
(3) documents forming part of the records of judicial proceedings;
(4) Documents required to be maintained by a public servant under any law; and
(5) registered documents the execution whereof is not disputed."
16. On its bare reading it is manifest that all such documents which are prepared by a public servant in discharge of his official duties and RC are kept as record are public documents.
17. To further fortify, reference can be made to the case of this Court reported as Karachi Metropolitan Corporation, Karachi and another v. Raheel Ghayas and 3 others (PLD 2002 SC 446) wherein the learned High Court had discarded from consideration layout/map as it was neither signed nor sealed by the Town Planner of K.M.C. And was neither confronted in evidence nor produced before the Trial Court. This observation was not found convincing and while brushing aside, this Court held that a public document could not be ignored merely because it was not confronted and was not produced in Court. Its intrinsic value shall be examined on its contents.
18. As regards the case of Mushtaq Ali referred (supra) relied upon by Mr. Wasim Sajjad, learned Senior Advocate Supreme Court also does not support the contentions as in this case, the petitioner was non-suited mainly on the ground that he had no locus standi to maintain the election petition as he was not a contesting candidate and that the petition was not verified but affidavit was filed only. So far as the case of Iqbal Zafar Jhagra referred supra is concerned, the same is also of no help to the case of the Appellant Bashir Ahmed Bhanbhan as this Court in this case has held that omission to verify on oath the annexures attached with the petition are not fatal to the case of prosecution.
19. On factual aspects, arguments advanced by Mr. Wasim Sajjad, learned Senior Advocate Supreme Court, are also untenable mainly for the reason that instead of several opportunities, the appellant could not bring on record any evidence either by examining himself or anyone on his behalf in support of his averments. Thus, the evidence adduced by respondent Shaukat Ali Rajpur remained un-rebutted and unchallenged. The evidence of P.W. Dost Muhammad is worthy of credence and was rightly relied upon by the learned Election Tribunal believing him to be a truthful witness. He in unequivocal terms has stated before the Tribunal that Appellant Bashir Ahmed Bhanbhan was not a bona fide student/candidate -against Seat No,1910 in B.A. (Pass) Part-II of 1983 held in the month of February, 1984. He deposed that in Secret Department in the University there are two sections namely "Top Secret and "Secret". Both these sections maintain identical record by keeping identical set of the documents including register of results and other documents and that the Register of relevant Ledger at page 101 contains the result of students who appeared in BA
(Pass) Part-II Examination of 1983. He further deposed that the Top Secret Ledger/Register originally bears the name of one Abdul Shaffaque son of Allah Wassayo Girano by caste and that a paper containing some other result prepared by Cyclostyle Machine was pasted on the original list and the paper so pasted upon the original one bears the name of Bashir Ahmed son of Haji Sobharo Khan Banbhan against Serial No,1910. He stated that page of Top Secret Register which was tampered with in the above manner, bears a note, dated 2-9-2002 that a notification was issued to that effect. Both the Registers were produced in evidence which were verified by the learned Judge himself and recorded the following note: "Note: Both the aforementioned registers have been seen and verified. The Top Secret Register shows that the paper bearing the name of Bashir Ahmed son of Haji Sobharo Khan Bhanbhan pasted on another paper (claimed by the witness to be original) has been slightly detached from lower side of page and the upper portion of the detached page/paper remains firmly pasted. The lower portion from where the superimposed (paper) has been detached clearly bears the name of Abdul Shaffaque against Roll No, 1910. As regards other register, he stated that on that too.Another paper stood superimposed by pasting, making the original entries not visible."
20. P.W. Dost Muhammad, in his evidence also produced attested copy of page No,101 of original result which stands pasted originally on the two sets of above-mentioned registers. He had also verified the same himself and found that it bears the name of Abdul Shaffaque son of Allah Wassayo, Girano by caste of Tando Allahyar Centre against Seat No,1910 of BA (Pass) Part-II Examination of 1983-84.
21. It is pertinent to note that on this aspect of the matter, not even a single question was put to this witness in cross-examination by learned counsel for Appellant Bashir Ahmed Bhanbhan, which thus remained unrebutted. The evidence furnished by (P.W.3) Dr. Saeed Ahmed Soomro, Registrar of University of Sindh, who only produced letter, dated 29-10-2002 written by him to Section Officer (Law), Election Commission of Pakistan, Islamabad, intimating that the degree certificates of BA
(Pass) Annual Examination, 1983 having Seat No,1910 produced by Appellant Bashir Ahmed Bhanbhan was found bogus and false, also went rebutted, as he was not cross-examined on this aspect also. In this view of the matter, we are left with no option but to accept the testimony furnished by above mentioned witnesses as truthful, trustworthy and believable. According to learned counsel Appellant Bashir Ahmad Bhanbhan appeared in the BA Examination in the year 1983 and qualified the same in the year 1984. He neither applied for copy of mark sheet nor obtained original degree till 2002 but got the certified copy of passed certificate in the year 2002 which creates doubt to its genuineness. Usually the original degrees are awarded in the Convocations by the Chancellor of respective Universities to successful students. Appellant Bashir Ahmad Bhanbhan in this case has not been able to show that institution from where he got his education, appeared in the examination and qualified the same.
22. We also do not agree with the contentions raised by Mr. Muhammad Ibrahim Satti, learned counsel for the respondent mainly on the ground that the Respondent Shaukat Ali Rajpur has not been able to establish on record the disqualification of appellant Bashir Ahmed Bhanbhan as notorious. Irrespective of above the Tribunal has properly dealt with this aspect of the matter in detail and has rightly rejected the claim of respondent Shaukat Ali Rajpur for declaring him as duly elected.
23. For better appreciation, it would be advantageous to know the dictionary meaning of word 'Notorious': Chambers English Dictionary Notorious. Adj. Publicly known (now only in a bad sense); infamous Notoriety. The state of being notorious, publicly Black's Law Dictionary As per Black's Law Dictionary, the word 'notorious' is defined as generally known and talked of, well or widely known, forming a part of common knowledge, or universally recognized. In the law of evidence, matters deemed notorious do not require to be proved. There does not seem to be any recognized rule as to what matters are deemed notorious. Cases have occurred in which the state of society or public feeling has been treated as notorious; e.g. During times of sedition. Corpus Juris Secondum Volume LXVI The 'notorious' word has been further elaborated in the following manner as given in Corpus Juris Secondum Volume LXVI, a word ' without technical definition, derived from a Latin word meaning to know, Primarily, the term means generally known and talked of by the public; generally or commonly known and spoken of. The term has also been variousloy defined as meaning conspicuous, evident; manifest to the world; universally recognized; universally believed to be true; forming a part of common knowledge; noted; well, widely, or commonly known. While it has been suggested that the word "notorious" may be, and usually is, employed in an unfavorable sense, as a notorious thief, a notorious evil or vice, and the term is defined in this sense as meaning universally known to disadvantage, it has also been said that the word may be used in an innocent or even laudatory sense.
The Oxford English Dictionary, Volume VII Noturious.
(1) Of facts: Well-known; commonly or generally known; forming a matter of common knowledge.
(2) Of places, persons, etc.: Well or widely known (now rare); famous.
(3) Conspicuous; Obvious, evident.
(4) Used attributively with designation of persons which imply evil or wickedness; Well-known, noted (as being of this kind).
(5) Noted for some bad practice, equality etc; unfavorably known; well-known on account of something which is not generally approved of or admired a. Of persons b. Of actions, qualities, facts, etc.
(6) Discreditable, disgraceful to one.
24. On the plain reading of the above definition, the word "notorious" means the fact of being publicly or commonly or generally known forming a matter of common knowledge. It is always used for some bad practice, quality, unfavorably known; well-known on account of something which is not generally approved of or admired.
25. When .Read in conjunction with disqualification there is no hesitation to hold that disqualification should be so significant as it does not require any proof. When examined on this touchstone, it becomes evident that respondent Shaukat Ali Rajpur has miserably failed to prove the same. He even himself was not confident about the qualification of appellant Bashir Ahmad Bhanbhan. It was, therefore, he withdrew the objection agitated against appellant Bashir Ahmad Bhanbhan regarding his being graduate, during the scrutiny of nomination papers.
26. For what has been discussed above, we are of the considered opinion that the principle of notoriety of disqualification is not attracted in this case. Resultantly, respondent Shaukat Ali Rajpur is not entitled for the grant of consequential relief thus cannot be declared duly elected.
27. Accordingly, while upholding the impugned judgment, both the appeals are dismissed.