' TASSADUQ HUSSAIN JILANI, J.--- This judgment shall dispose of Election Appeal No,103(A) of 2002 (Ch. Nisar Ali Khan v. Ghulam Sarwar Khan) and Election Appeal No,159(A) of 2002 (Khalid Khan v.
Ch. Nisar Ali Khan and others) as they have nexus. Appellant in the former appeal is respondent in the latter appeal.
2. In Election Appeal No,103(A) of 2002, the acceptance of Nomination Papers of respondent candidate Ghulam Sarwar Khan has been challenged on the ground that the certificate of Associate Engineering issued by the Punjab Board of Technical Education, Lahore, on the basis of which the respondent appeared in the B.A. Examination and obtained the degree subsequent thereto, was forged, therefore, he is disqualified to contest the coming General Elections. In Election Appeal No,159(A) of 2002 the acceptance of Nomination Papers of respondent candidate Ch. Nisar Ali Khan have been challenged. The grounds being urged are that he made concealment of the land revenue paid during the year 2001-2002 and secondly that he had not disclosed the source of income for the purchase of a residential Plot in LUMS Housing Society Lahore by spending an amount of Rs,14,96,000.
3. Mr. Waseem Sajjad, learned counsel for appellant in Election Appeal No,103(A) of 2002, with his usual eloquence, made following submissions:--
(i) That the respondent had misused the Intermediate Certificate issued by the Punjab Board of Technical Education, Lahore in favour of one Ghulam Sarwar Khan son of Abdul Harneed Khan and appeared in the B.A. Examination which conduct reflects dishonest disposition amenable to the mischief clause of sections 14(5A) and 99(1)(cc) of the Representation of the People Act, 1976;
(ii) That section 8-A of the Representation of the People Act, 1976 stipulates a valid Bachelor's Degree and a Bachelor Degree which is procured on the basis of a forged F.A. Certificate cannot be classified as a valid degree.
(iii) That the appellant wrote a letter on 30th August, 2002 to the Vice-Chancellor of Islamia University, Bahawalpur regarding the invalidity of the Bachelor's Degree obtained by the respondent but the reply is still awaited.
(iv) that the inquiry contemplated by law to be undertaken by the Returning Officer though summary in nature but the intent of the law-maker is to qualify only righteous and upright people.
For the membership of the Parliament and this Tribunal may not abdicate its authority leaving the matter to some other forum.
' In support of the above submissions, learned counsel relied on Waqar Hussain Butt v. District Returning Officer 2001 CLC 902, Ghulam Mustafa v. Returning Officer 2001 CLC 924, Sarfraz Khan v.
Returning Officer 2001 M LD 788 and an unreported judgment in Writ Petition No,1968-D of 2001 passed by a learned Judge of this Court at Rawalpindi Bench which was affirmed by the august Supreme Court in C.P.S.L.A. No,1714/L of 2001.
4. Sardar Muhammad Latif Khan Khosa, learned counsel for the respondent in Election Appeal No,103(A) of 2002, vehemently defended the order of the Returning Officer on the following grounds:--
(i) That in terms of section 8-A of the Conduct of General Elections Order, 2002, the requisite academic qualification is a Bachelor's Degree and it is not denied that the respondent is holder of the said degree and has not been annulled by any forum whatsoever.
(ii) That the scrutiny under the Election Laws are summary proceedings, the Returning Officer has to examine the admitted documents and cannot assume the role of a Civil Court in conducting inquiry contemplated under section 14(5A) of the Representation of the People Act, 1976.
(iii) That the impugned order is not open to any exception as the respondent fulfilled the basic educational qualification required by law and this Tribunal as also the Tribunal No,11 of this Court have dismissed the appeals raising objections with regard to the alleged misuse of forged F.A.
Degree. In this connection orders passed by this Tribunal in Election Appeal No,18 l(R) of 2002 Malik Abrar Ahmad v. Returning Officer and others Election Appeal No,311(A) of 2002; Ch. Muhammad Aslam Sindhu v. Tariq Mehmood and others, Election Appeal No,36(A) of 2002 and Election Appeal No,5(A) of 2002 are referred.
5. Learned counsel appearing for the Punjab Board of Technical Education, Lahore submitted that the Board had issued the certificate dated 31-8-2002 in favour of respondent candidate Ghulam Sarwar Khan to the effect that he had passed the D.A.H. Annual Examination, 1974 in Mechanical Engineering. An official of the Government College of Technology Faisalabad, who produced the record, submitted that in the provisional result card register, the parentage of Ghulam Sarwar Khan is written as Abdul Hameed Khan and not Muhammad Hayat Khan which is that of the respondent in the instant appeal. The admission form of Ghulam Sarwar Khan son of Abdul Hameed Khan was also perused by this Tribunal. The result register of the Board indicated that the parentage of the candidates including that of Ghulam Sarwar Khan had not been mentioned at all. On a query made by this Tribunal, learned counsel for the Board submitted that the proper record to verify the parentage of the candidates, in the afore-referred circumstances, would only be the school register.
6. We have heard learned counsel for the parties, have examined the relevant statutory provisions, the precedent case-law and had a look at the record as well.
7. The issue raised by learned counsel for the appellant in Election Appeal No,103(A) of 2002 is primarily with regard to the alleged disqualification of respondent to be a candidate or to remain a Member of the Parliament. However, in the backdrop of the fact that respondent candidate holds a Bachelor's Degree which has not been annulled by the concerned University, the primary question which comes up for consideration before this Tribunal is that as to whether the Returning Officer and this Tribunal can examine the genuineness of the Bachelor's Degree which is the academic qualification required to be a candidate? The powers of scrutiny of Nomination Papers are given in section 14(5A) of the Representation of the People Act, 1976 which reads as under:-- "(5A) If, on the basis of any information or material brought to its knowledge by any source, a Tribunal constituted under subsection (5) is of the opinion that a candidate whose nomination papers have been accepted is a defaulter of loan, taxes, Government dues or utility charges or has had any loan written off or suffers from any other disqualification from being elected as a member of an Assembly, it may, on its own motion, call upon such candidate to show cause why his nomination papers may not be rejected, and if the Tribunal is satisfied that the candidate is actually a defaulter as aforesaid or has had a loan written off or suffers from any disqualification, it may reject the nomination pape Rs,"
8. The ambit of the afore-referred provision came up for consideration before a Division Bench of this Court in Pir Allay Imran and others v. Mian Muhammad Nawaz Sharif and another 1991 CLC 1 and the learned Court relying on the ratio laid down in Raja Muhammad Afzal v. Ch. Muhammad Altaf Hussain and others 1986 SCM R 1736 wherein, at page 11, it was observed as under:-- "24. A bare reading of the above quoted provisions of law reveals that the objection to the nomination paper is to be disposed of in a summary enquiry within the limited period laid down in the schedule by the Election Commission and not by holding a full-fledged judicial trial. Even an appeal against the decision, of the Returning Officer is to be summarily decided as envisaged by subsection (5) of section 14 of the Act. The Returning Officer is only required to examine the nomination papers and decide the objection in the presence of persons attending the scrutiny by holding a summary enquiry as he may think fit and not by way of an elaborate enquiry provided in Chapter VII of the Act relating to election disputes. This also finds support from the fair reading of rules 4-A and 4-B. The phrase 'conduct such summary enquiry as he may think fit' used in section 14(3) of the Act, means that the Returning Officer is to decide the objections raised by any person to any nomination after examining the material available on record. The rationale of the `summary enquiry' is expeditious disposal of the objections and scrutiny of nomination within a limited period.
Clearly this purpose cannot be achieved by holding a full-fledged enquiry or a roving enquiry into the files of the Government or other departments to fish out a case against a candidate. The burden of proof is on the person alleging. Here the following dicta of the Supreme Court, in Muhammad Afzal's case (supra) may be quoted with advantage- ' The enquiry at the stage of scrutiny of nomination papers and the hearing of the appeal against the acceptance of the nomination paper is summary and the decision is to be within such time as may be notified by the Commission. With these drawbacks in handling the appeal and in disposing it of when a more elaborate and complete procedure for the trial of the same issue is provided before the Election Tribunal after the returned candidate has been notified, such a summary enquiry could not bar the more elaborate enquiry provided for in Chapter VII of the Representation of the People Act'."
9. In the instant appeal, the Returning Officer was to see as to whether the respondent was in possession of a Bachelor's Degree in B terms of section 8-A of the Conduct of General Election's. Order, 2002 which mandates as under:-- "8-A. Educational qualification for a member of Majlis-e-Shoora (Parliament) and a Provincial 'Assembly.--- 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 (XXIII of 1974)] [for any other law for the time being in force]."
10. It is not denied before this Tribunal that respondent did appear in the B.A. Examination, ,cleared it and is holder of a Bachelor's Degree duly issued by the concerned University. It is further not denied that no order has so far been passed on the letter addressed to the V ice-Chancellor of the said University on 30th August, 2002. That being so, it would tantamount to pre-empting the powers of the said University to pass an appropriate order on the said letter.
11. Notwithstanding the serious objection raised by the learned counsel for the respondent with regard to the summoning of record of Government College of Technology, Faisalabad as also that of the Punjab Board of Technical Education, Lahore we had a cursory look at the said record, Photostat copies of some of the relevant pages have been placed on record as Mark "A" and Mark "B" as well. Although in the college record the parentage of Ghulam Sarwar Khan is different than that of respondent Ghulam Sarwar Khan yet without a detailed scrutiny, recording of evidence, hearing the other Ghulam Sarwar Khan son of Abdul Hameed Khan, examining the F.A. Certificate submitted by respondent before the University for B.A. Examination, it would not be fair to give a finding which has two-fold penal consequences i,e, disqualification for Election and criminal offence. If the respondent is allowed to contest the election and even if he succeeds the appellant would still have a remedy to challenge the election by way of an Election Petition and by then the Vice-Chancellor of the, concerned University would have passed some order on appellant's application and the Election Tribunal would be in a better position to record evidence and pass an appropriate order. On the other hand if this appeal is allowed, it would oust him from the election arena which would be an irreparable damage. The wisdom of summery inquiry contemplated under the afore-referred provision of law has this rationale behind. The precedent case-law to which reference has been made by the learned counsel for the appellant is distinguishable. Those are Single Bench judgments and pertain to the Local Councils Elections in which the basic qualification was matriculation and challenge was thrown to the authenticity of those certificates.
12. Coming to Election Appeal No,159(A) of 2002 we note that in terms of Act H of 1988, the land Revenue stood abolished in Punjab and he was not required to mention the same. Moreover, no document has been placed on record to indicate that the land Revenue was payable on the land by the said respondent. So far as the argument of non-disclosure of source of income to purchase the plot in LUMS Housing Society, Lahore is concerned, the same is misconceived as in the column of liabilities of the Nomination Papers it has been clearly stated that he owes a sum of Rs,14,96,000 taken as loan from his brother Lt.-Gen. (R) Iftikhar Ali Khan. This is the amount, which the respondent paid to purchase the residential plot in the afore-referred society. The argument of the appellant's learned counsel in Election Appeal No,159(A) of 2002 that the afore-referred income if not received through a crossed cheque shall be deemed to be personal income of the respondent Ch. Nisar Ali Khan in terms of section 12(18) of the Income Tax Ordinance, 1979, could be an issue before the Assessing Authority under the afore-referred Ordinance and not before this Tribunal.
13. Before parting with the judgment we would like to add that in Election Appeal No,103(A) of 2002 notwithstanding our moral and normative concerns we refrained from interfering mainly because of the limited jurisdictional aspect, the fact that the Bachelor's Degree in favour of respondent is intact, in the Punjab Board of Technical Education's result register Ghulam Sarwar's name is mentioned alongwith other examinees but parentage is not mentioned, the F.A. Certificate filed by the respondent for appearing in B.A. Examination in 1976 has not been placed on record and in deference to the principle of consistency in view of the judgments of Election Tribunals of this Court raising similar question. The issue raised, nevertheless, is serious. We, in the afore-referred circumstances, leave it for resolution by the appropriate forum under the law. The Director Punjab Board of Technical Education, Lahore and the Principal of Government College of Technology, Faisalabad are directed to keep the record in safe custody to avoid any tampering and shall make it available to the Vice-Chancellor concerned or any other Tribunal/forum if the same is required.
14. For what has been discussed above we do not find any merit in i,e, Election Appeal No,103(A) of 2002 and Election Appeal No,159(A) of 2002. Resultantly, both the appeals are dismissed with no order as to costs.