Through this Election Petition the petitioner has challenged the election of respondent No,1, inter alia, on the ground that the respondent No,1 was not qualified to contest the election as he was not a graduate and B.A. Pass Part-II degree and certificate submitted by him along with his nomination papers were false and forged documents. The petitioner has further alleged that the respondent No,1 was guilty of corrupt and illegal practice and has rigged the elections through connivance of the Election Authorities and government functionaries and, therefore, was able to secure highest votes. The petitioner has prayed for the following relief in this petition:-- ' "In the interest of justice, equity and good conscience, it is humbly prayed that this Honourable Tribunal may be pleased to declare that the respondent No,2, Mr. Muhammad Khan son of Mr. Shah Nawaz Junejo as a person disqualified to hold the office of Member, National Assembly from NA- 236, Sanghar-III.
(ii) Recall/withdraw/rescind/set aside the Notification No,F.2(35)/ 2002-Cord., dated 20-10-2002 issued by the respondent No,1 declaring respondent No,2 as successful candidate/returned candidate and to declare the same to be illegal, void ab initio and of no legal effect.
(iii) To declare the petitioner namely Fida Hussain Dero as winner/successful/returned candidate from NA-236, Sanghar-III and to direct the Election Commission of Pakistan to issue required Notification in favour of the petitioner.
(iv) Restrain the respondent No,2 to sit in the forthcoming sessions of the National Assembly and/or from participating in the proceedings of the National Assembly.
(v) Any other/additional relief as this Honourable Tribunal may deem fit and proper in the circumstances of the case.
(vi) Cost of the proceedings."
2. The facts as they appear from the pleadings of the parties are that the petitioner and respondents Nos.1 to 9 contested Elections for National Assembly from the Constituency NA-236, Sanghar III, which elections were held on 10th October, 2002. At the time of scrutiny of the nomination papers, the respondent No,1 had filed a copy of the bogus and fake certificate and degree of the Sindh University and had got his nomination papers accepted on the forge and fake documents as he had never graduated and therefore, he was not qualified to contest the elections in view of the condition imposed by section 99(1)(cc) of the B Representation of the People Act, 1976 (hereinafter referred to as "the Act").
3. It was further pleaded in the petition that the respondent No,1 and his workers rigged the elections at certain polling stations and the respondent No,1 secured 66543 votes with the connivance of the election authorities/government agencies in violation of the rules and regulations to achieve the desired result whereas the petitioner secured 56628 second highest votes.
4. On an application of the petitioner, the Sindh University verified the degree and certificate of the respondent No,1 from the record and it transpired that the certificate and degree of B.A. (Pass)
Part-II which were submitted by the respondent No,1 before the Returning Officer were bogus/false.
According to the University's record. Muhammad Rafiq soil of Muhammad Ramazan Memon, has passed B.A. (pass) Part II Annual Examinations in January, 1986 in 2nd Class under Seat No,3420 and the copy of the marks-sheet, pass Certificate and degree in the name of respondent No,1 were bogus and false. The Sindh University issued a Notification on 18-10-2002 notifying this fact to the general public.
5. On the following day, the petitioner approached the Returning Officer with an application with which he annexed the copy of Notification of the Sindh University with the request to take prompt action against the respondent No,1 in accordance with law. The Returning Officer on 19-10-2002 (the same day) addressed a letter to the Chief Election Commissioner of Pakistan intimating him that the copies of the degree and the certificate of B.A. Submitted by the respondent No,1 were declared bogus arid false by the Sindh University and requested for appropriate orders against the respondent No,
1. According to the petitioner the Election Commission did not take any action on the letter received by them from the Returning Officer. The petitioner, therefore, has filed the present election petition with the prayers made hereinabove.
6. The respondent No,1 has filed his written statement denying and disputing the averments made in the petition and reiterated that his degree and marks certificate were not bogus. Respondents Nos.2 to 9 neither put in appearance nor filed their written statement and, therefore, were declared ex parte. From the pleadings of the parties following issues were framed by this Tribunal on 3-3- 2003:--- "(1) Whether petitioner has failed to comply with the requirement of the section 55(1)(a)(b) of the Representation of the People Act, 1976? If so, its effect?
(2) Whether the petition is bad for non-joinder of parties?
(3) Whether the copy of B.A. Degree, 1985 (Annexure A-2) and the copy of Mark Sheet bearing No,000169, dated 16-8-2002 (Annexure A-3) filed by the respondent No,1 along with his nomination papers are real and genuine?
(4) Whether the respondent No,1 namely Muhammad Khan Junejo was qualified to contest the Election, 2002, in view of Article 8-A of the Conduct of General Election Order, 2002 read with section 99(1)(cc) of the Representation of the People Act, 1976?
(5) What is the effect of the Notification, dated 18-10-2002 (Annexure C) issued by the Assistant Controller of Examinations, University of Sindh?
(6) What is the legal effect of the order, dated 11-11-2002 passed by the Governor of Sindh (Annexure G-1 of the written statement)?
(7) What relief the petitioner is entitled for?
(8) What should the order be?"
7. The petitioner examined Dr. Abdul Razzak Abro, Controller of Examinations, University of Sindh, Jamshoro, a representative of the University as P.W.1 (Exhibit 1) who produced the Extract of the Enrolment Register attested photocopy of which has been exhibited (original seen and returned) as Exhibit 2. Entry, dated 31-5-1985 in the extract of the Enrolment Register showing the name of Muhammad Rafiq sort of Muhammad Ramazan Memon, his Enrollment No,35085-A, as Exhibit 3, attested copy of B.A. Part-I, Examination Signature Sheet, dated 22-1-1985 of Shandadpur Centre as Exhibit 4 (original seen and returned),entry at serial No,18 in Exhibit 4 showing the signature of the candidate Muhammad Rafique Memon with Seat No,4614 who appeared in Pakistan Studies paper as Exhibit 4-A (original seen and returned), attested copy of B.A. Part-I Examination Signature Sheet, dated 23-1-1985 of Shandadpur Centre as Exhibit 5 (original seen and returned), entry at serial No,15 in Exhibit 5 showing the signature of candidate Muhammad Rafique Memon with Seat No,4614 who appeared in Muslim History paper as Exhibit 5-A, attested copy of B.A. Part-I Examination Signature Sheet, dated 26-1-1985 of Shandadpur Centre as Exhibit 6 (original seen and returned), entry at serial No,30- in Exhibit 6 showing the signature of the candidate Muhammad Rafique Memon along with Seat No,4614 appeared in Political Science paper as Exhibit 6-A, attested copy of B.A. Part-1 Examination Signature Sheet, dated 28-1-1985 of Shandadpur Centre as Exhibit 7 (original seen and returned), entry at serial No,15 in Exhibit 7 showing the signature of Muhammad Rafique Memon with Seat No,4614 who appeared in Islamic Culture paper as Exhibit 7-A, attested copy of B.A. Part-II Examination Signature Sheet, dated 6-2-1986 of Shandadpur Centre as Exhibit 8 (original seen and returned), entry at Serial No,4 in Exhibit 8 showing the signature of Muhammad Rafique Memon with Seat No,3420 who appeared in English paper as Exhibit 8-A, attested copy of B.A. Part-II Examination Signature Sheet, dated 9-2-1986 of Shandadpur Centre as Exhibit 9 (original seen and returned), entry at serial No,15 in Exhibit 9 showing the signature of Muhammad Rafique Memon with Seat No,3420 who appeared in Sindhi paper as Exhibit 9-A, attested copy of B.A. Part-II Examination Signature Sheet, dated 10-2-1986 of Shandadpur Centre as Exhibit 10 (original seen and returned), entry at serial No,26 in Exhibit 10 showing the signature of Muhammad Rafique with Seat No,3420 who appeared in Muslim History paper as Exhibit 10-A, attested copy of B.A. Part-II Examination Signature Sheet, dated 13-2-1986 of Shandadpur Centre as Exhibit 11 (original seen and returned), entry at serial No,26 in Exhibit 11 showing the signature of Muhammad Rafique with Seat No,3420 who appeared in Political Science paper as Exhibit 11-A, attested copy of B.A. Part-II Examination Signature Sheet, dated 17-2-1986 of Shahdadpur Centre as Exhibit 12 (original seen and returned), entry at Serial No,22 in exhibit 12 showing the signature of Muhammad Rafique with Seat No,3420 who appeared in Islamic Culture paper as Exhibit 12-A, attested copy of page 233 of Ledger Book (Checkers Copy-Secret Section) containing forged/fictitious typed page as Exhibit 13 (original seen and returned) and fictitious entry showing name of Muhammad Khan son of Shah Nawaz Junejo (respondent No,1) against Seat No,4614 as Exhibit 13-A, attested copy of actual page No,233 (Checkers' Copy-Secret Section) as Exhibit 14 (original seen and returned) along with the actual entry showing name of Muhammad Rafique against Seat No,4614 as Exhibit 14-A, attested copies of pages 232 and 234 of the Ledger Book (Checkers' Copy-Secret Section) as Exhibits 14/1 and 14/2 respectively (original seen and returned), attested copy of entire ledger forged page 233 of Duplicate "Top Secret Ledger" of B.A. Part-I pertaining to the year 1984-85 double pasted (superimposed on the original paper) as Exhibit 15 (original seen and returned) and the forged entry showing the name of Muhammad Khan son of Shah Nawaz Junejo (respondent No,1) as Exhibit 15-A, attested copy of page 233 of the Ledger (Top Secret Duplicate) after scratching the double pasting as Exhibit 15-B and portion of actual entry at page 233 reflecting the name of Muhammad Rafique against Seat No,4614 as Exhibit 15-C (all original ledgers seen and returned), attested copies of pages 232 and 234 of Duplicate "Top Secret Ledger" as Exhibits 15/1 and 15/2 respectively (all originals seen and returned), attested copy of page 161 (Checkers Copy) of B.A.
Part-II, Secret Ledger, as Exhibit 16 (original seen and returned) and the entry showing the name of Muhammad Rafique son of Muhammad Ramazan Memon against Seat No,3420 with previous Seat No,4614, as Exhibit 16-A (original seen and returned), attested copy of page 161 of Top Secret Ledger (Duplicate) of B.A. Part-II containing fictitious typed double pasted page (superimposed) on actual page as Exhibit-17 (original seen and returned) and fictitious/forged entry in the name of Muhammad Khan son of Shah Nawaz Junejo (respondent No,1) replacing the name of Muhammad Rafique son of Muhammad Ramazan Memon against Seat No,3420 as Exhibit 17-A (original seen and returned), attested copy of fictitious typed page double pasted (superimposed) on the original typed page of Duplicate Top Secret Ledger as Exhibit 18 (original seen and returned), attested copies of pages 160 and 162 (Top Secret (Duplicate) Ledger and Checkers' Copy Secret Ledger respectively) as Exhibits 18-A and 18-B respectively (original seen and returned), photocopies of parawise comments filed by the University in Constitution Petition No,D-1923 of 2002 as Exhibit 19, photocopy of the comments along with Annexures filed by the University in Constitution Petition No,D-384 of 2002 as Exhibit 20, copy of Notification, dated 18-10-2002 issued by the Sindh University declaring that the Pass/Marks and Degree certificates of B.A. (Pass) Part-II Annual Examination of 1984 having Seat No,4614 and B.A. (Pass) Part-II Annual Examination of 1985 Seat No,3420 in the name of Muhammad .Khan son of Shah Nawaz (respondent No,1), bogus/false, as Exhibit 22 (original seen and returned), photocopy of Governor's Letter ordering constitution of High Powered Committee as Exhibit 23, photocopy of letter, dated 22-11-2002 of Vice-Chancellor, Sindh University, constituting High Powered Committee as Exhibit 24 (original seen and -returned), photocopy of covering letter of Mr. Ahmed Ali Shaikh, Dean Faculty of Law, as Exhibit 25 (original seen and returned) and report of the High Powered Committee as Exhibit 26 (original seen and returned) and its Annexures 26/1 to 26/41 (original seen and returned) and photocopy of application 17-10-2002 of the petitioner to the Vice Chancellor, Sindh University as Exhibit 26/42 (original seen and returned) for enquiry. The counsel for the respondent No,1 cross-examined the witness at length.
8. The petitioner examined himself as P.W.2 (Exhibit 27) and produced memo. Of Election Petition No,125 of 2002 as Exhibit 28 and his affidavit-in-evidence as Exhibit 29. The counsel for the respondent No,1 also cross-examined the petitioner at length as well. Thereafter the petitioner closed his side.
9. The respondent No,1 did not appear in the witness box to lead evidence in spite of the opportunities provided to him. In this regard, I intend to give some details before dealing with the arguments of the counsel. On 30-8-2003, the respondent No,1 sought adjournment when the petitioner was in the witness box for cross-examination, on the ground that he moved a transfer application before the Honourable Chief Election Commissioner, inter alia, on the ground that the present Election Petition be transferred and heard by the Tribunal hearing Election Petition No,35 of 2002 in which common questions of law were involved. The adjournment was objected to by the learned counsel for the petitioner on the ground that mere making of a transfer application was no ground to stay the proceedings. However, showing indulgence, this Tribunal adjourned the matter to 13-9-2003 with the clear observation that no further adjournment would be granted to the respondent No,1 who may get any order on his transfer application in the meantime. It was further observed in the order that no adjournment in future would be granted to the respondent No,1 on the ground of pendency of transfer application.
10. On 13-9-2003 another application for adjournment was made by the respondent No,1 on the identical ground of pendency of the transfer application before the Honourable Chief Election Commissioner. Again this Tribunal adjourned the matter to 20-9-2003 for cross-examination of the petitioner, who was present in Court. On 20-9-2003, again adjournment was sought by the respondent No,1 on the ground that Mr. Nawab Mirza, Advocate has superseded Mr. Raja Qureshi, Advocate for the respondent No,
1. Mr. Nawab Mirza learned counsel for respondent No,1 stated that since he has accepted the brief on 20-9-2003 therefore he needs time to prepare the case. The matter was adjourned to 27-9-2003 to accommodate the counsel for the respondent No,1 to prepare the brief.
11. On 27-9-2003 again adjournment was sought by the learned counsel for the respondent No,1 on the ground of pendency of the transfer application. On the same day a fax was received to the Registrar of this Tribunal from the office of Chief Election Commissioner in which comments to the transfer application were called. The undersigned furnished the comments adjourning the matter to 11-10-2003. The matter was fixed for cross-examination of the petitioner who was present but Court for cross-examination. On 11-10-2003 the matter was called but counsel for the respondent No,1 was not present. The matter was adjourned to 3-11-2003. After the order was dictated the counsel for the respondent No,1 put in his appearance and he was notified the next date of hearing.
12. On 3-11-2003 again adjournment was sought by Mr. Nawab Mirza, counsel for the respondent No,1 on the ground that the transfer application of the respondent No,1 was pending decision before the Honourable Election Commissioner. This Tribunal in the said order, dated 3-11-2003 made it clear that the respondent No,1 would not be granted any further adjournment on the next date and the counsel of the respondent No,1 shall be ready to cross-examine the petitioner and shall also make available the respondent No,1 and or his witnesses in Court for their evidence as well, case was adjourned to 7-11-2003.
13. On 7-11-2003, adjournment application was made by the respondent No,1 on the ground that transfer application of the respondent No,1 has not yet been decided. The adjournment application was dismissed and the counsel for the respondent No,1 was called upon to cross-examine the petitioner. The counsel for the respondent No,
1. Mr. Nawab Mirza, filed a statement stating therein that he has no instruction to cross-examine the petitioner. Under these circumstances, the right to cross-examine the petitioner by the respondent No,1 was recalled and the matter was posted for cross-examination/evidence of respondent No,1 and his witnesses to 1-12-2903.
14. On 1-12-2003 an application for recalling the order of 17-11-2003 was made by the respondent No,
1. The request for opening the side to cross-examine the petitioner was allowed subject to payment of costs of Rs,25,000. The matter was posted to 15-12-2003 for cross-examination of the petitioner. On 15-12-2003 the cost was not deposited by the respondent No,1 and on account of such default the quantum of cost was further increased from Rs,25,000 to Rs,30,000 and the matter was adjourned to 22-12-2003 for cross-examination of the petitioner.
15. On 22-12-2003, Mr. Nawab Mirza, learned counsel for the respondent No,1 made four applications in order to seek adjournment. All the applications were dismissed by a detailed order on the same day and the matter was posted for cross-examination of the petitioner to 24-12-2003.
16. On 24-12-2003 the cross-examination of the petitioner was concluded and the matter was posted for evidence of the respondent No,1 and his witnesses to 5-1-2004. On 5-1-2004, adjournment was sought through fax on the ground that the respondent No,1 was stuck up in Islamabad and the matter was adjourned to 10-1-2004.
17. On 10-1-2004 the respondent No,1 along with his counsel appeared in Court. Mr. Nawab Saeedullah Khan, learned counsel for the respondent No,1 attempted to present an application for transfer of the Election Petition from this Tribunal. On query from the learned counsel as under which provision of law an application for transfer was made before this Tribural. The counsel for the respondent No,1 had no answer and did not present/file the proposed transfer application.
Thereafter, the counsel for respondent No,1 requested for half an hour time to enable the respondent No,1 to go through the contents of his written statement and affidavit in evidence to prepare himself for cross-examination.
' The matter was kept-aside and was taken up after an hour but the respondent No,1 did not appear and the counsel appearing for the respondent No,1 made a statement that he pleads no instructions. The side of the respondent No,1 under these circumstances, was closed and the matter was posted for final arguments on 12-1-2004.
18. On 12-1-2004 an adjournment application was made by the counsel for the respondent No,1, Mr. Nawab Mirza. The respondent No,1 was also present in Court. This Tribunal suggested to the counsel for the respondent No,1 to make available the respondent No,1 for cross-examination but the counsel and the respondent No,1 refused as a result of which the application for adjournment made by the respondent No,1 was dismissed.
19. On 12-1-2004 the hearing of the arguments of petitioner's counsel was started and the matter was adjourned to 13-1-2004 on which date again a statement was filed by the counsel for the respondent No,1 pleading no instructions to argue the matter, which statement was taken on record by order, dated 13-1-2004 since the respondent No,1 failed to lead evidence in spite of opportunities provided to him, his side was closed and the arguments were heard.
20. Before discussing the points which were urged by the learned counsel for the petitioner. I feel necessary to incorporate certain material facts surfaced in between 19-10-2002 and 24-8-2003 when the present Election Petition was filed as these material facts were brought before this Tribunal by the parties through different documents and have definite bearing over these proceedings.
21. After 19-10-2002 when the letter was addressed by the petitioner to the Returning Officer informing him that the Sindh University has notified the degree and certificate of respondent No,1 as fake and bogus, on 29-10-2002 a Constitution Petition No,D-384 of 2002 was filed before a Division Bench of Sindh High Court, Hyderabad Circuit, by three voters of the constituency, two of them were the proposer and seconder of the petitioner, challenged holding of office of the respondent No,1, with the following prayers:---
(i) Declare that the Notification issued by respondents Nos.1 to 3 declaring respondent No,5 as successful candidate/Returned Candidate to be illegal, void ab initio and of no legal effect.
(ii) Restrain respondents Nos. 1 to 3 from allowing/permitting the respondent No,5 to sit in the forthcoming Sessions of the National Assembly and/or from participating in the proceedings of the National Assembly.
(iii) Direct the respondents Nos. 1 and 2 to act in accordance with law on the letter of respondent No,4 (Annexure "C").
(iv) To declare the candidate who got the next highest votes as the successful/returned candidate.
(v) Any other/additional relief as this Honourable Court may deem fit and proper in the circumstances of the case.
(vi) Cost of the proceedings."
22. During the pendency of the said petition, the respondent No,1 on 19-11-2002 filed a Constitution Petition No,D-1923 of 2002 before the Principal Seat of Sindh High Court impugning the Notification, dated 18-10-2002 issued by the Sindh University whereby the pass certificate and degree issued in the name of respondent No,1 were declared bogus/fake. One of the grounds raised in the petition reproduced hereunder:- "(f) That another aspect of malice by the defeated candidate of the petitioner could well be visualized that up to date if the petitioner was and is disqualified to have contested the elections and had become the returned candidate, then the recourse available to him was and is under the provisions of section 52 of the Representation of People Act, 1976 to approach the Elections.
Tribunal which has been duly constituted and notified which could adjudicate upon the issue of the alleged disqualification of the petitioner. Such resort has yet not been made by the rival candidate of the petitioner against the petitioner."
23. The Constitution petition filed by the respondent No,1 contains the following prayers:-- "(i) Declare the notification bearing No,Exam/SEC:Verification/380, dated 18-10-2002 issued by the Assistant Controller of Examinations Secret (Annual) University of Sindh. Jamshoro from the office of the Controller of Examination, University of Sindh to be illegal, unlawful and of no legal consequences.
(ii) To direct the Registrar of this Honourable Court or any Officer of this Honourable Court to proceed to the respondent University and seal the record of the petitioners academic qualification being maintained by the University of Sindh at Jamshoro and place the same before this Honourable Court.
(iii) To suspend the operation of the impugned Notification bearing No,Exam/SEC. Verification/380, dated 18-10-2002 pending disposal of this petition.
(iv) To direct the respondents to take a specific position as to whether the domicile provided by the petitioner in relation to his qualification are genuine or otherwise.
(v) To grant cost of the petition.
(vi) To grant any other relief/relieves as deemed fit and proper in the circumstances of the case."
24. Copies of both these Constitution petitions were filed by the respondent No,1 along with his application C.M.A. 2576/2003 under section 151, C.P.C. Seeking sine die adjournment of this Election Petition, which was made on 20-12-2003. By order, dated 22-12-2003 the said application was dismissed by this Tribunal.
25. The record further reveals that the petitioner has approached the Honourable Governor of Sindh who is Chancellor of Sindh University prior to filing of the Constitution Petition No,D-1967 of 2002 with a request to order detailed inquiry to ascertain the genuineness of the Notification, dated 18-10-2002. On 18-12-2002 the Honourable Governor of Sindh has passed an order (Exhibit 23) which was communicated to the Vice Chancellor, Sindh University. While directing the Vice Chancellor to constitute a High Powered Committee for holding inquiry, the Honourable Governor, as an interim measure, has suspended the Notification, dated 18-10-2002 issued by the Sindh University. On 22-11-2002 (Exhibit 24) the Vice Chancellor, Sindh University, has addressed a letter to the Additional Secretary to the Governor, informing him that the issue of genuineness of the degree and certificate of the respondent No,1 was subjudice in Constitution Petition No,D-384 of 2002 and sought further direction of the Honourable Governor. On 30-11-2002 pursuant to the directive of the Governor, the Vice Chancellor constituted a High Powered Committee to examine the genuineness of degree of BA (Pass) Part-II 1985 Seat No,3420 issued to the respondent No,1 along with the relevant papers. The Vice Chancellor nominated following officials as Governor. Members and Secretary of the High Powered Committee:- "1. Mr. Ahmed Ali Shaikh, Dean. Faculty of Law Convenor and Member of the Syndicate
2. Prof. Dr. Muhammad Usman Memon, Member Director, Institute of Pharmacy. University of Sindh.
3. Mr. Muhammad Ilyas Rajput, Chairman, Member .Department of Statistics University of Sindh.
4. Prof. Dr. Anwar All Shah G. Syed, Director, Member Institute of Business Administration, University of Sindh.
5. Mr. Agha Riaz Hassan, Chairman, Department Member of Commerce, University of Sindh
6. The Deputy Controller of Examinations Secretary" (Annual), University of Sindh.
26. The Committee examined the record and also issued notices to the petitioner as well as respondent No,1 who appeared/participated in the inquiry conducted by the High Powered Committee. The petitioner as well as respondent No,1 were provided opportunity of hearing and were allowed to file documents.
27. During the pendency of inquiry the respondent No,1 addressed a letter, dated 21-12-2002 to the Honourable Governor of Sindh (Exhibits 26/38) intimating him that since the present Election Petition was filed by the petitioner before this Tribunal, therefore, the inquiry before the High Powered Committee be stayed as the controversy may be allowed to be resolved through adjudication in Election Petition. The respondent No,1 also addressed a letter, dated 24-12-2002 (Exhibits 26/37) to the COnvenor of the High Powered Committee requesting him to postpone the meeting scheduled on 24-12-2002. The respondent No,1 in his said letter had stated that the issues which were to be answered by the High Powered Committee through inquiry be allowed to be adjudicated upon in the Election Petition filed by the petitioner.
28. The respondent No,1 appeared before the High Powered Committee or 24-12-2002 and filed documents, which include written statement filed in the Election 'Petition, copy of representation, dated 21-12-2002 addressed to the Honourable Governor of Sindh and photocopy of an affidavit of Muhammad Rafiq son of Muhammad Ramzan Memon. No other academic document was filed by the respondent No,1 before the High Powered Committee. The Committee after hearing the parties and perusal of the record has submitted the following report (Exhibit 26):--- ' "In view of the observations stated above and the relevant record so far available as annexed herewith along with this report the Committee is of the considered view that the degree certificate issued to Mr. Muhammad Khan Junejo is not genuine at all and is false and fake. Accordingly, Notification dated 18-10-2002 issued by the University of Sindh, declaring the degree certificate as false and bogus is correct.
' The Committee in order to ensure transparency in the institution suggests that the officials concerned in the Secret Branch of the University of Sindh be taken to task and recommends for imposition of major penalty under relevant rules.
' The Committee was also conscious of the proceedings/ adjudication of the matter before various forums including Honourable High Court of Sindh, as such suggested that the instant report be not exposed, unless the matter is finally decided therein, lest, it may come under the domain of contempt." (emphasis added).
29. On the other hand, the Constitution Petition No,D-384 of 2002 filed against the respondent No,1 was ordered to be transferred to and be heard at the Principal Seat of the Honourable Sindh High Court along with Constitution Petition No,D-1923 of 2002 filed by the respondent No, 1 . The Constitution Petition No,D-384 of 2002 was renumbered as C.P. No,D-1967 of 2002 and was tagged with the Constitution petition filed by the respondent No,
1. Both the aforesaid Constitution Petitions are being adjourned at times apparently on the ground that since the present Election Petition having been filed before this Tribunal and the issues raised in both the aforesaid Constitution petitions were common in those proceedings, therefore, the same be decided by this Tribunal after recording evidence of the parties.
30. It has been argued by Mr. Rasheed A. Razvi, learned counsel for the petitioner, that the respondent No,1 was not qualified to contest the elections of National Assembly from Constituency NA-236, Sanghar HI, as on the date of filing of the nomination papers he was not a graduate. He submitted that academic documents i.e, B.A. Degree and the Marks Certificate filed by the respondent No,1 before the Returning Officer at the time of scrutiny were declared fake and bogus by the Sindh University pursuant to the Notification dated 18-10-2002 and in this respect the record of the Sindh University had been produced before this Tribunal through P.W.1, Dr. Abdul Razzak Abro, Controller of Examinations, clearly establishes that the respondent No,1 never passed B.A. (Pass)
Part-II Examinations under Seat No,3420 from Sindh University and the academic documents referred to hereinabove were procured by the respondent No,1 with the connivance of the University staff by tampering with the record of the Sindh University. He has pointed out various exhibits/record produced by the Controller of Examinations, Sindh University in support of his contention.
31. Mr. Rasheed A. Rizvi submitted that on perusal of the entire academic record pertaining to the years 1984-85 and 1985-86 of the Sindh University shows that Muhammad Rafiq son of Muhammad Ramzan Memon has appeared and passed B.A. (Pass) Part-II Annual Examination of 1984-85 under the Seat No,3420 and was placed an 2nd Division. He submits that on the basis of Exhibits 13, 13-A, 15, 15-A, 17 and 17-A, the respondent No,1 with the connivance of the staff of the {{PAGE CUT}} Sindh University had tampered with the superimposing the forged seat list on the actual his name in place of Muhammad Rafiq son Memon in the entry against Seat No,3420 and p. Pass/Marks Certificate which were made ba nomination paper. He submits that there is no do list on any of the Ledger in the entire Uni Exhibits 13, 15 and 17. He further states t Committed which was holding the inquiry ex an Junejo 1915 Tribunal) niversity record by eat list and substituted f Muhammad Ramzan ocured the degree and is for accenting his ble pasting of the seat ersity Record except t the High Powered mined the record on detaching the portion of superimposed fictitious s eets of seat lists found that on the original seat list when uncovered by d tachment surfaced the name of Muhammad Rafiq son of Muhammad R= inzan Memon against Seat No,3420.
32. Mr. Rasheed A. Razvi argued that there as no document in the University record produced before this Tribunal hich could show that the respondent No,1 was either enrolled or appe red in exams and or ever allotted the Seat Number 3420 as candidate r B.A. (Pass) Part-II or Seat No,4614 as candidate for B.A. (Pass) art-I. It was further argued by the learned counsel that even the atten ance sheets for B.A. (Pass) Part-I and Part-II pertaining to academic ye rs 1984-85 and 1985- 86 of Shandadpur Centre do not show that the espondent No,1 who claims to have appeared from Shahadpur Centre ever appeared in the different papers on different dates in the examinat ons and instead these attendance sheets Exhibits 3. To 12 show the sign tures of Muhammad Rafique son of Muhammad Ramzan Memon. He also relied upon the report of the High Powered Committee (Exhibit 6), which committee after holding inquiry has submitted its report. He, therefore, submitted that in the face., of overwhelming documentary ev. Ence the respondent No,1 has never passed B.A.
(Pass) Part-II Annual Examination and has procured the Marks Certificate and B.A. Degree a tampering with the University record in connivance with the. Univ; rsity staff and was never qualified to contest the elections on th date of filing of nomination under section 99(1)(cc) of the ct.
He, therefore, prayed that the electioh of respondent. No,1 from N -236, Sanghar-III be IF IF declared void.
33. The second leg of argument of Mr. Rashe d A. Razvi was that the petitioner was liable to be declared as returned andidate in terms of section 67(1)(c) and section 69 of the Act. In this respect he submitted that the respondent No,1 has secured 66543 where .s the petitioner has secured 56628 votes, the second highest in number I the constituency. It was argued that since the respondent No,1 was dish alified in the face of the documentary eviden(e produced by the Sindh- niversity before this Tribunal, the petitioner . Entitled to be declared duly elected. In this regard he has cited number of judgments starting rom PLD 1968-SC {{PAGE CUT}} 301, 1986 MLD 2011, 2002 CLC 1807, 1975 SCM R 409 and 1986 SCM R 1701.
34. I have heard the arguments of the petitioner's counsel and have perused the record. However, I have not been benefited by the arguments of the counsel for the respondent No,1 who by a statement in writing had pleaded no instructions. Before reading evidence, the petitioner's counsel had made a statement that he will not press any other issue including the issue of rigging of elections and will only press this Election Petition on the issue of disqualification of respondent No,1 in terms of section 99(1)(cc) of the Act.
35. The respondent No,1 claims to have passed his B.A. (Pass) Part-II under Seat No,3420 in Annual Examination held in 1985 from Sindh University, which examinations were held in February, 1986 and the result of the same was declared on 5-8-1986 and the respondent No,1 was placed in 2nd Division. The respondent No,1 along with his written statement has filed copy of the Marks Certificate (Annexure C). Degree Certificate (Annexure D) and Pass Certificate of B.A. (Pass) Part-II (Annexure E). The respondent No,1 also file copy of the seat list of B.A. (Pass) Part-II Annual Examination 1985 of Shandadpur Centre in which his name appears at serial No,10.
36. The University from which the respondent No,1 claims to have passed his graduation has produced the entire record in respect of the examinations of B.A. (Pass) Part-I and B.A. (Pass) Part- II, held by them of the years 1984-85 and 1985-86 respectively. According to the record of the University, it was Muhammad Rafiq son of Muhammad Ramzan Memon who was enrolled as a candidate in the Sindh University and had passed the B.A. (Pass) Part-II Annual Examinations under Seat No,3420 from Shandadpur Centre for Annual Examination of 1985-86 which were held by the Sindh University in the month of January, 1986 and was placed in 2nd Class. In proof of this fact P.W.1 had produced Notification of 18-10-2002 (Exhibit 22) in which Marks and Degree Certificates of B.A. (Pass) Part-I Annual Examination of 1984 having Seat No,4614 and B.A. (Pass) Part-II, Annual Examination, 1985 under Seat No,3420 in the name of respondent No,1 after verification found bogus/false.
37. The witness Dr. Abdul Razzak Abro had produced Exhibit 2 which is the extract of the enrolment register pertaining to the academic years 1983-84 and 1984-85 containing Exhibit 3 which was an entry against the name of Muhammad Rafiq son of Muhammad Ramazan Memon who was shown to have passed H.Sc. Examinations in 1983 and was enrolled by the Sindh University against the Enrollment No,38085-A on 21-3-1985. According to the P.W.1 a candidate who is not enrolled with the Sindh University cannot appear in the exams of B.A. (Pass) Part-I and or Part-II, There is no entry in t e enrollment register maintained by the Sindh University either in the cademic years of 198384 or in 1984-85 to show that the respondent No,1 was ever enrolled with the Sindh University. Dr. Abdul Razak rib o, P.W. 1 has produced Exhibit 4 to Exhibit 8, which are attendance shee s of the candidates who had appeared from Shandadpur Centre I B.A. (Pass) Part-I Examinations on different dates in different s bjects. These exhibits contained the signature of Muhammad Rafiq son of Muhammad Ramzan Memon against his allotted Seat No,4614 in B. . (Pass) Part-I. Neither the name nor the signature of the respondent, 0.1 appears on any of these exhibits to establish that he appeared in t e examination of B.A. (Pass) Part-I in 1984-85. The University wi a ess further produced Exhibit 9 to Exhibit 12, which were attendance heets of the candidates of Shahdadpur Centre who appeared in B.A. (Pass) Part-II Annual Examination which commenced on 6-2-1986 onw. Rd. These exhibits also mention the signatures of Muhammad Rafiq son if Muhammad Ramzan Memon against his allotted Seat No,3420. Nei her the name nor the signature of the respondent No,1 appears on a y of these attendance sheets to establish the claim of respondent No,1 at he has appeared in B.A. (Pass) Part-II Annual Examinations from Sh. Hdadpur Centre under Seat No,3420. Moreover, these attendance sheets (Exhibits 4 to 12) are maintained by the invigilators/head invigilators or other staff of the Examination Centre and after the examinations a e over the attendance sheets (Exhibits 4 to 12) are transmitted to the, University for its record. Mr. Raja Qureshi while cross-examining the P.W 1 has not suggested a single question in regard to the veracity of the Ex ibits 4 to 12 and same were allowed to be produced without any objectio from the respondent No,1 side.
38. The second set of documentary evidence which has been produced by the P.W.1 was two Ledger Books which were the results of B.A. (Pass) Part-I and B.A. (Pass) Part-II each for the academic years 1984-85 and 1985-86. Out of the two original Ledger Books of B.A. (Pass) Part-I one is called "Checker's Copy of Secret Section" whereas the other is its duplicate ledger and is called "Top Secret Ledger". Each page of these Ledgers has two portions. The rig t half portion of the Ledger is printed and contains the columns of different subjects, column of grand total and the column of remarks showing whether the candidate had passed or failed in the examination, beside , the previous seat number. The half of the portion on left said is black and is pasted by a typed page called "Seat List". This typed page which is called seat list contains the Ledger page number, name of the examination, Centre from which the examination was conducted, seat umber, name of the candidate, father's name, surname, the previous sect number and year. This seat list is pasted on the left half portion o' the Ledger. In the printed half right portion the marks of the candidates are written in hand along with the remarks. The Duplicate Ledger, which is called "Top Secret Ledger" is also maintained in the same manner as mentioned hereinabove. The "Checker's Copy" of Secret Section is signed by the Cherker. Tabulator, Secrecy Officer and Controller of Examinations whereas the Top Secret Ledger (Duplicate) is only signed by the Tabulator. These two Ledgers are in custody of two different officials of the University.
39. Controller of Examination, P.W.1 has produced page 233 of the Checker's Copy Secret Section as Exhibit 13 pertaining to the result of B.A. (Pass) Part-I Annual Examination of 1984 which were held in January, 1985, seat list of which was tampered with by superimposition of fictitious seat list. The superimposed fictitious seat list contained identical particulars of the candidate as appeared on the original seat list except that against the entry of Seat No,4614 the name of Muhammad Rafiq son of Muhammad Ramazan Memon was substituted by the name of respondent No,1 (Exhibit 13- A). The witness deposed that this fact of superimposition of the seat list revealed when the High Powered Committee examined the record with great difficulty, when some portion of the fictitious seat list was detached the name of Muhammad Rafique son of Muhammad Ramazan Memon transpired on the original seat list against Seat No,4614 which fact appears in Exhibits 14 and 14-A.
40. Similarly on page 233 of the "Top Secret Ledger" (duplicate ledger) Exhibit 15, the original seat list was superimposed by another fictitious seat list. The particulars of all the candidates appearing in the fictitious seat list were identical to that of the original seat list on which it was superimposed except that Exhibit 15-A in which the name of Muhammad Rafiq son of Muhammad Ramazan Memon was substituted by the name of the respondent No,1 against the entry of Seat No,4614. The University witness in his evidence deposed that on detaching some portion of the fictitious seat list by the High Powered Committee the name of Muhammad Rafiq surfaced against the Seat No,4614.
Exhibit 15-B and Exhibit 15-C.
41. The Exhibit 16, page 161 of the Checker's Copy of Secret Section, pertains to the results of the Annual Examinations, 1985 of B.A. (Pass) Part-II with the previous year's Seat No,4614 and Exhibit 16- A contains the name of Muhammad Rafiq son of Muhammad Ramazan Memon against Seat No,3420. This seat list was original and does not have any fictitious superimposed seat list.
However, the Top Secret Ledger (page 161) Exhibit 17, which is duplicate copy of Exhibit 16 has been tampered with in the identical manner by superimposing a fictitious seat list on the original seat list in which all the particulars of the candidates are identical to that original seat list except that the name of Muhammad Rafiq son of Muhammad Ramazan Memon has been replaced by the name of respondent No,
1. Exhibit 17-A, against Seat No,3420. On detaching the portion of the fictitious seat list by the High Powered Committee the name of Muhammad Rafiq son of Muhammad Ramazan Memon surfaced on the original seat list against Seat No,3420, Exhibit 18 and Exhibit 18-A.
42. The witness of the University has further deposed that typing strokes of superimposed seat lists are different than the typing strokes of actual seat list. He further deposed that the pages of Ledgers of Checker's Copy Secret Section and (duplicate) Top Secret Ledger which were produced and or brought on record in Court, do not have any superimposed seat list except in page 233 of Checker's Copy of Secret Section and top Secret Ledger and on page 161 of the Top Secret Ledger.
The learned counsel for the respondent No,1 has not objected to any of these documents which were produced and exhibited in evidence. The only suggestion which was given to the University witness by the. Counsel of the respondent No,1 was that the Vice Chancellor of Sindh University was a friend of the petitioner and under his directive the University record was tampered with by the staff of the Sindh University which suggestion was denied by the P.W.1. The petitioner was examined as P.W.2 and has relied upon his entire evidence on the basis of the documentary evidence produced by P.W. I .
43. In the written statement the respondent No,1 has merely denied the allegation of forgery of his academic documents but has neither filed any other academic document showing his educational qualification as B.A. Except copies of B.A. Degree. B.A. (Pass) Part-II Certificate/Marks Sheet and copy of seat list of Shandadpur Centre nor has he given any particulars of his educational qualification as to when he passed his Metric examination, Intermediate examination and or when was he enrolled in the Sindh University. Even not only in this Election Petition but also in Constitution Petition No,D-1923 of 2002 which was filed by him before the Sindh High Court, such particulars are missing. The respondent No,1 has appeared on 24-12-2002 before the High Powered Committee who was conducting inquiry at his request and he did not submit any document and or any particular before the Committee.
44. In the face of the documentary evidence which is the authentic record of the Sindh University from whose custody it was produced, it is established beyond doubt that the respondent No,1 was issued the B.A. (Pass) Part-II Certificate. Degree and marks sheet, copies of Which he has annexed with his written statement, were fake documents and were procured by tampering with the Checker's Copy of Secret Section and Top Secret Ledgers Exhibit 13, Exhibit 15 and Exhibit 17. Even the record shows that the respondent No,1 was not enrolled with the Sindh University. I, therefore, hold that the respondent No,1 was not qualified to contest the elections for the National Assembly on the date of filing of his nomination papers for want of his academic qualification as the Degree.
Certificate, BA (Pass) Part-II Certificate and the marks Certificate produced by him before the Returning Officer were fake and bogus.
45. In regard to the second submission of Mr. Rasheed A. Razvi that the petitioner was entitled to be declared elected in place of the Returned Candidate. I have gone through the judgments cited by the learned counsel in support of his submission. There is no cavil in regard to the powers of this Tribunal to declare the petitioner or any contesting candidate to be duly elected under the provisions of section 67(1)(c) and section 69 of the Act, if the Tribunal is satisfied that the petitioner or such other contesting candidate was entitled to be declared elected.
46. The expression "satisfaction" used in section 69 of the Act implies objective satisfaction. In order to claim the relief of the nature what is required by a party is to establish that the disqualification of the Returned Candidate was notorious. In the present case, the petitioner has neither pleaded in his petition nor has led any evidence to show that either the petitioner or voters of the constituency were in knowledge of the disqualification of the respondent No,1 either prior to elections and or on the date of election which was 10-10-2002. The petitioner's own case is pleaded in the petition was that he for the first time on 18-10-2002 after the elections were over had approached the Sindh University with an application seeking verification of the degree and marks certificate of the respondent No,1 and on 18-10-2002 the petitioner for the first time acquired knowledge of the disqualification of the respondent No,
1. Mr. Rasheed A. Razvi, had argued that in constitution petition No,D-384 of 2002 (new number 1967 of 2002) the petitioners therein in para. 4 of the said petition have pleaded that they were in knowledge that the respondent No,1 was disqualified from contesting the elections. These petitioners in the said Constitution Petition are strangers to the present proceedings. The petitioner has not examined any of these persons as his witness. Mere statement of fact pleaded in the memo. Of a Constitution petition in collateral proceedings by a stranger to this Election could not be treated as evidence for the purposes of declaring the petitioner duly elected in terms of section 67(1)(c) and section 69 of the Act. The law in this respect as propounded by the Honourable Supreme Court is unambiguous.
47. In absence of any evidence before this Tribunal that the petitioner and the voters of the Constituency prior to elections were in knowledge of the disqualification of the respondent No,1, the petitioner would not be entitled to be declared as elected unless there is convincing evidence that the disqualification of the respondent No,1 was notorious. The principles laid down in all these authorities cited by the learned counsel of the petitioner does not help the petitioner as neither the petitioner has pleaded nor did he lead any evidence before this Tribunal to establish that the disqualification of the respondent No,1 was notorious warranting this Tribunal to declare the petitioner as duly elected in place of the respondent No,
1. The judgment of the Honourable Supreme Court in the case of Rashid Ahmed v. Barkat Ali reported in PLD 1968 SC 301 is, otherwise, distinguishable on facts and has no application to the facts of the present case.
48. For the aforesaid reasons I allow this petition and hold that the respondent No,1 was not on the nomination day, qualified to contest the elections for want of academic qualification iri terms of section 99(1)(cc) of the Act. The degree and Certificate of B.A. (Pass) Part-II Annual Examination 1985 submitted by the respondent No,1 before the Returning Officer along with his nomination papers, copies of which were filed by the respondent No,1 along with his written statement, in these proceedings, were false and bogus. The election of the respondent No,1, therefore, is declared void and fresh election is ordered in the constituency. The petitioner, however, is not entitled to be declared elected under section 67(1)(c) and section 69 of the Act as there was no evidence on record to establish that the disqualification of the respondent No,1 was notorious.
49. Before parting with the judgment, I feel it necessary to observe that the custodians of the University record are required to be vigilant. It is unfortunate that the record of the University (both the Ledgers) was allowed to be tampered with to benefit the respondent No,1. If this practice is allowed to be continued, it would shake the confidence of the public in general and students in particular. It is hoped that the Vice Chancellor of the Sindh University shall take stern action in accordance with law against the University officials, who were either guilty and or were instrumental in tampering with the record, to benefit the respondent No,1 and Registrar of the Sindh University shall be made personally responsible to ensure that sanctity of record is maintained in future. Copy of this order be communicated to the Vice Chancellor. Sindh University, through its Registrar. accordingly.