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Petitioner: NAZAR MUHAMMAD FATIANA VS Respondent: WALAYAT SHAH and 6 others
Court Name: Election Tribunal Judge(s): Sh. Azmat Saeed Title: NAZAR MUHAMMAD FATIANA vs WALAYAT SHAH and 6 others Case No.: Election Petition No,136 of 2008 Date of Judgment:2011-06-22 Reported As: 2012 CLC 449 Result: Petition allowed
JUDGMENT
JUDGMENT ' SH. AZMAT SAEED J.--- Election Petition 136 of 2008 has been filed by the petitioner Nazar Muhammad Fatiana under section 52 of the Representation of the People Act, 1976 to call in question the elections of a seat of the Provincial Assembly of the Province of Punjab i,e,, PP-220 Sahiwal. 2. Brief facts necessary for the adjudication of the lis at hand are that the General Elections were held on 18th of February, 2008 including for Provincial Assemblies, The present petitioner as well as respondents 1 to 7 contested the said election. As per the result notified by the -Election Commission,. Peer Walayet Shah Khagha, hereinafter to be referred as respondent No,1, was declared as the returned candidate. The present petitioner who was one of the candidates has 'filed the instant election petition to call in question the said election, inter alia, on the ground that respondent No,1 did not possess the requisite educational qualifications to contest the said election. In this behalf, it is the case of the petitioner that respondent No,1 in view of the letter of the Punjab University dated 28-10-2002 was disqualified from appearing in any examination before the annual examination of 2005, and therefore, he was not entitled to even sit for the examination as claimed. It was added that respondent No,1 in support of his educational qualification, while submitting his nomination papers, had relied upon a degree of Bachelor of Business Administration BBA allegedly issued by Al-Khair University Azad Jammu and Kashmir with respect to Session 2001- 2003. In this behalf, it was contended that not only the respondent No,1 was disentitled to appear in the said examination in view of the letter of the Punjab University dated 23-10-2002 but also the BBA's degree from AlKhair University AJK was invalid, and not recognized as such in Pakistan by the Higher Education Commission. On the basis of the aforesaid allegations, it has been prayed that
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election of respondent No,1 to the Provincial Assembly of the Province of the Punjab from the Constituency PP-220 Sahiwal, be declared illegal and the petitioner be declared to be the successful returned candidate from the said Constituency. 3. Upon filing of the Election Petition, notices were issued to respondents including respondent No, 1. No one appeared in pursuance of the said notices, and all the respondents were proceeded ex parte vide order dated 25-3-2009. Subsequently, respondent No,1 "filed an application CM 934 of 2009 seeking setting aside of ex parte proceedings dated 25-3-2009. With the consent of the learned counsel for the petitioner CM 934 of 2009 was accepted by this Tribunal vide order dated 18-12-2009, and the ex parte proceedings were set aside, and respondent No,1 was directed to file written statement. None of the other respondents filed any applications for setting aside ex parte proceedings against them, nor entered appearance at any later stage. 4. In the written reply filed by respondent No,1, a series of preliminary objections were taken including that the instant Election Petition did not conform with nor was filed in compliance of the requirements of section 54 and 55 of the Representation of the People Act, 1976, and 'the notification dated 16-3-1985 issued by the Election Commission of Pakistan, it was also asserted that neither any cause of action was disclosed nor any triable issues raised in the Election Petition. It was further contended that the Election Petition as well as the documents appended therewith were neither signed or verified in accordance with Order VI, Rule 15, C.P.C., and section 54(3) of the Representation of People Act 1976. On merits, it was contended that the respondent No,1 possessed the requisite educational qualification; as he had obtained a BBA Degree from Al-Khair University AJK, and had contested the election on the basis of the said educational qualification, It was further contended in this behalf that at the time of the filing of the nomination papers, an unsuccessful challenge was thrown to the educational qualification of respondent No,1 and respondent No,1 was held to be qualified by this Court, aside its judgment dated 13-12-2007. With regard to the action of the Punjab University, it was contended that the said order was passed ex parte without affording an oppor,tunity to respondent No,1 and has been challenged by way of a civil suit which is currently pending adjudication. In the above context, it was s prayed that the Election Petition be dismissed. 5. On the divergent pleadings of the parties, the following issues were framed on 15-1-2010: (1) Whether respondent No,1 was disqualified as he did not possess requisite educational qualification of being a graduate? OPP (2) Whether the petition is liable to be dismissed for non-compliance of sections 54/55 of the Representation of the People Act, 1976 and notification dated 16-3-1985? OPR1 (3) Whether the petition does not raise any triable issue within the meaning of sections 68, 69 and 70 of Representation of the People Act 1976? OPR (4) Whether the documents and annexures appended with the petition do not comply with the provisions of Order VI, Rule 15, C. P. C. And section 55(3) of the Representation of the People Act, 1976, if so, to what effect? OPR (5) Whether the petitioner is estopped from filing the present petition? OPR (6) Whether this petition is not maintainable in view of the judgment dated 13-12-2007? (7) Relief. 6. Vide order dated 12-3-2011, a Local Commission was appointed by this Tribunal to record the evidence of the parties. Evidence of the parties was recorded and the Report of the Local Commission in this behalf has been received. The Election Petitioner produced one Muhammad Rauf as P W.1 and also entered the witness box as P.W.2. Documents Exhs.P.W.1 to P.W.6 and Mark A and Mark B are produced in evidence. Respondent No,1 entered the witness as R.W.1 and produced Exhs.R1 to R.4. Furthermore Muhammad Siddique was produced as RW2 who also produced documents Exh.R.5 and ' R.6. Documents Exhs.R.7 to R.10 were tendered into evidence by the learned
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counsel for the respondent No,l. In rebuttal, the petitioner produced Exhs.P.7 and P.8 as well as documents Mark C to Mark G. 7. Subsequently respondent No,1 filed CM No,9 of 2010 seeking to summon and produce Syed Asim Hussain Assistant Director Higher Education Commission. Said application was allowed by this Tribunal vide order dated 7-10-2010. Said Asim Hussain was duly summoned who appeared and his statement was recorded on oath before this Tribunal.- Said witness produced in evidence documents Exh.R.W,3/1. The election petitioner was, given full opportunity to cross-examine the said witness, which was availed. 8. Muhammad Raul Controller of Examinations UOP appeared as P.W.1, and stated on oath that he was conversant with the facts, and had brought the record of respondent No,1 pertaining to BA/BSc Annual Examinations 2002. The witness stated that a complaint was received from one Masood Ahmed son of Ahmed Ali by the Controller of Examinations University of Punjab. In the said complaint it was alleged that impersonation had been committed by respondent No, 1 . The complaint, it is stated was referred to Disciplinary Committee of the University of Punjab which issued no less than seven notices to respondent No,1 to appear before it and upon failure of respondent to do so, the Committee proceeded ex parte. He stated that the photograph affixed on the form received from the Conduct Branch was different. The witness further deposed that respondent No,1 had also produced a medical certificate in respect of one of the notices dated 1- 10-2002 issued by the Committee. Eventually, the Committee unanimously disqualified the respondent No,1 for a period of three years under Regulation 14 of the University Calendar, and such decision was communicated to respondent No,1 vide letter dated 28-10-2002. The witness added that respondent No,1 filed an appeal to the Vice-Chancellor against the said decision of disqualification by the Disciplinary Committee. The witness added that handwriting of respondent No,1 was compared with the handwriting on the answer books and found to be different. Decision of the Disciplinary Committee, it was stated was confirmed by the Vice-Chancellor on 7-12-2007 and communicated to respondent No, 1. The letter communicating the decision of the bisciplinary Committee was produced in evidence Exh.P.1/1 the decision of appeal and .The final approval of the Vice-Chancellor and the letters communicating the same were respectively produced in evidence Exhs.P.3, P.4, P.5 and P.6. 9. In cross-examination by the learned counsel for respondent No,1 the said witness P.W.1 stated that he had not received any notice by name to appear as a witness. It was stated that record of roll number in question was not in his custody, but was in the custody of the UMC Branch of the University. He further stated that he had not brought the total record, but the complete record of Disciplinary Committee only. He further stated that ex parte decision of the Disciplinary Committee dated 28-10-2002 was challenged in appeal by respondent No,1 before the Vice-Chancellor which was accepted and the case was remanded for decision. He further stated that the Disciplinary Committee presumed the service of respondent No,1 as the said respondent had submitted a Medical Certificate regarding a date 'of hearing before it. He also conceded that respondent No,1 had filed a civil suit challenging the decision of the University, which is pending adjudication. 10. The election petitioner appeared as P.W.2 and reiterated the contentions submitted in his Election Petition, and was subjected to a detailed cross-examination. 11. Respondent entered the witness-box as R.W. 1 .And stated on oath that he had contested the election held in 2008 from PP-20 Sahiwal. He categorically stated that along with his nomination papers a degree of graduation from Al-Khair University was appended, the original of such degree was produced in evidence as Exh.R/1. He further stated that his nomination papers were objected to by one Asif Nawaz on the ground of lack of educational qualification, but such objection was overruled by the Returning Officer after verification of the degree relied upon by respondent. Certified copy of the order of the Returning Officer dated 29-11-2007 was produced in evidence as
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Exh.R2. The witness further stated that the order of the Returning Officer was challenged before this Court in appeal which was dismissed vide order dated 13-12-2007 certified copy whereof was produced in evidence as Exh.R.3. 12. With reference to the proceedings taken and orders passed by the Punjab University regarding the previous examination, the witness stated that the said decision was taken ex parte which has been challenged in civil suit,' copy of the application for temporary injunction filed along with suit was produced in evidence along with interim orders thereupon as Exh.R.4, R. W.1 further stated that his degree issued by the Al-Khair University is certified by the NEC of the Government of Pakistan. 13. During his cross-examination, respondent No,1 as R.W.1 stated that after passing his F.A. In 1974 he got admission in Al-Khair University in 2001. He further stated that he obtained admission and was registered through the Proceeds Institute of Management and Information Technology, Lahore. He further stated that he appeared in an examination of the Punjab University as a private candidate in 2002 while he was the regular student of RBA of Al-Khair University AJK. He acknowledged the disciplinary proceedings taken against him by a committee of the Punjab University which was ex parte. He further stated that he had filed an application before the Vice- Chancellor challenging such ex parte decision. He also stated that he had filed a civil suit in this behalf against the Punjab University. He added that he had been disqualified for a period of three years by the Punjab University but such order was the subject-matter of a civil suit filed by him. 14. Muhammad Siddique Deputy Controller Al-Khair University appeared as R.W.2. He stated that respondent No,1 got admission in Proceeds Institute of Management and Information Technology Lahore which is affiliated with the Al-Khair University, and the respondent was issued a degree of BBA by Al-Khair University from Muzafarabad Campus AJK which is on record as Exh.R1. During his cross-examination, R.W.2 stated that Proceed Institute where respondent No,1 had secured admission is a private institute affiliated with Al-Khair University. 15. Asim Hasan Assistant Director Attestation and Accreditation HEC appeared as R.W.3 and produced in evidence letter Exh.R.W.3/1 and identified the signatures thereupon. During his cross- examination by the petitioner he stated that the said document R.W.3/1 was written in response an application for equivalence received from respondent No,1 Copy of the said application was produced in evidence as Exh.R.W.3/2. The said witness was specifically asked whether he could deny that respondent No,1 was student of Proceeds Institute Science and Technology Lahore or was the student of AI-Khair University. The witness answered: 'I do' not know'. During further cross- examination, the witness stated that he only dealt with degrees transmitted from the Principal Campus. Of Al-Khair University AJK. With reference to R.W.3/1 he stated that the same was issued in accordance with the procedure and rules. Added that only signature on the document and the hidden feature were identified in the instant case. He further stated that original of Mark C, Mark D, Mark E and Mark F are on record. He added that to best of his knowledge permission must be obtained from the Provincial Government as well as the University in whose jurisdiction a campus was to be established or affiliated prior to such affiliation. He further stated that to the best of his information Al-Khair University had not obtained any such permission from the Government of the Punjab to open any campus in the Province of the Punjab. R:W.3 was asked a specific question whether the HEC grants recognition, attestation or equivalence with regard to any degree of Al- Khair University pertaining to a student who has attended the University at any place other than the Campus of Al-Khair University in. AJK. The witness answered 'No'. 16. The counsel for the parties have been heard and record perused. Finding on the issues is as follows:-- Issue No,1 17. That issue No,1 pertaining to the educational qualification or lack thereof of the respondent No,1 is pivotal and goes to the heart of the controversy between the parties on merits. It is the case of
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the petitioner that the respondent had taken the BA/BSc annual examination 2002 from the University of Punjab Lahore. Upon a complaint filed, the matter was taken cognizance of by the Disciplinary Committee of the University, which concluded that the degree in question was the result of fabrication and impersonation and the respondent No,1 was not entitled thereto. Furthermore, respondent No,1 was disqualified from taking any examination for a period of three years. Said finding, it is the case of the petitioner, was maintained by the Vice-Chancellor of the Punjab University while rejecting an appeal filed by the respondent. And the order was maintained by the Chancellor. In the above backdrop, it is contended that the respondent No,1 claims to have obtained a BBA's degree from Al-Khair University AJK. The said BBA's degree, it is contended is invalid, as it was purportedly obtained during the period of disqualification imposed by the Punjab University, and even otherwise, is bogus, and not recognized in the Islamic Republic of Pakistan by the HEC. In this behalf it is the specific case of the petitioner that respondent No,1 claims to have attended classes not at the Campus of Al-Khair University at Muzafarabad or anywhere else in AJK, but at Lahore in an allegedly affiliated institution. And in this behalf permission or consent had been obtained by the said institution at Lahore either from the Provincial Government or the Punjab University which is a sine qua non for the validity of any degree awarded. On the other hand, it is the case of the respondent No,1 that the decision of the Punjab University of disqualifying him was ex parte, and even otherwise, had been challenged in civil suits, which are currently pending adjudication. It is added that even otherwise the disqualification of the Punjab University would only be applicable to the said University itself and cannot in law be applicable to any other University including Al-Khair University AJK. 18. Learned counsel for the respondent further contended that the BBA's degree had been authenticated and acknowledged both by AlKhair University and the HEC Pakistan, and in this behalf reliance was placed n Exh.P.W.3/1. 19. It is a matter of the record that respondent No,1 contested the election in question claiming to possess the requisite educational qualification on the basis of his BBA degree from Al-Khair University, which was appended with his nomination papers. This fact has been asserted by the respondent in his examination-in-chief as R.W.1. Thus, it is the validity, of the said BBA degree of Al- Khair University which needs to be adjudicated upon. 20. It is an admitted fact'between the parties that respondent No,1 had claimed to have earlier obtained BA degree from Punjab University. It is also an admitted fact between the parties and evidence on record that disciplinary proceedings were initiated against respondent No,1 who was disqualified from taking the examination from the Punjab University. Such decisions of the Punjab University and its authorities have been challenged ' by the respondent No,1 through civil suits stated to be pending. It is also an admitted fact that till date suits filed by respondent No,1 have not been decreed/decided in his favour. Be that as it may, the disqualification imposed by the Punjab University would be applicable to the examinations to be conducted by the said University and would not extend to any other University or be binding thereupon. Thus, respondent No,1 was not debarred in law from sitting for an examination from any other University during the period of the disqualification. Consequently, the validity of BBA degree from Al-Khair University AJK relied upon by the respondent No,1 must necessarily be decided on its own merit without reference to disqualification imposed by the Punjab University. 21. Al-Khair University is a private University chartered by the Government of AJK under Act XXVII of 1994 as was asserted by R.W.2 Muhammad Siddique the Deputy Controller of the University. The AlKhair University apparently had a Campus at Muzafarabad. Admittedly, the respondent did not attend the Al-Khair University at its, Campus in Muzafarabad or anywhere else in AJK. In fact, it is the case of the respondent himself that he obtained admission in Proceeds Institute of Management and Information Technology Lahore as stated by him in his cross-examination as
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R.W.1. The aforesaid fact was also stated by R.W.2 in his examination-in-chief. Both the aforesaid R. Ws. Asserted that the said Institute at Lahore is affiliated with Al-Khair University AJK, and on the basis of the respondent's enrolment with the Proceeds Institute of Management and Information Technology Lahore, the BBA degree in question Exh.R1 has been awarded to the respondent. However, it is the case of the petitioner that any degree awarded by Al Khair University AJK to a candidate who had attended classes outside AJK and in the Province of the Punjab is invalid and not recognized in Pakistan as requisite consents and permissions had not been obtained from the Provincial Government and the Punjab University. While it is the case of respondent that such degrees of Al-Khair University are in fact recognized by the HEC Islamabad Pakistan, and in this behalf has placed reliance upon Exh.P.W.3/1. 22. With the help of the learned counsel for the parties Exh.P.W.3/1 has been examined. It is a letter dated 22-6-2010 addressed to respondent No,1 by one Syed Asim Hussain, Assistant Director, HEC which purports to state that Al-Khair university AJK is a chartered University in the private sector, and the HEC recognizes the BBA degree held by the respondent from Al-Khair University. Author of said letter Asim Hussain entered the witness-box as R.W.3. He identified himself as Assistant Director Attestation and Accreditation HEC Islamabad. During the course of his cross-examination, he stated that Exh.P.W.3/1 had been issued in response to an application of the respondent for equivalence. He further stated that he had information pertaining to equivalence if degrees of Al- Khair University, and all other matters regarding the said University were dealt with by another department in respect whereof he had no information. He further stated with respect to Exh.P.W.3/1 that in the instant case only the comparison of the signature on the document and the identification of the hidden features of the degree was done. During his cross-examination the said witness was specifically asked to what were the prerequisites for permitting Al-Khair University to open campuses or grant affiliations to other institutions. In response the said witness stated that to the best of his information and knowledge, permission in this behalf must be obtained from the Provincial Government and the concerned University within whose jurisdiction, such campus had to be established. He further stated that to the best of his information Al-Khair University had not obtained any such permission from the Government of Punjab to open any Campus in the Province of Punjab. The said witness was asked a specific question whether the HEC recognizes or grants equivalence to any degree of AlKhair University pertaining to a student who had attended the University at any place other than the principal campus of University in AJK. The answer by the witness was an emphatic 'No'. 23. In the above circumstances the letter Exh.P.W.3/1 when examined in the context of the cross- examination of its author R.W.3 leaves no manner of doubt that the same is of no help to the respondent. And as per representative of the HEC, summoned and produced by the respondent himself, the HEC does not recognize any degree issued by Al-Khair University to a candidate who, was enrolled in and attended classes at a place other than the principal Campus of Al-Khair University in AJK. Respondent No,1 as per his own case, did not attend classes at the principal campus of Al-Khair in AJK but at an institute at Lahore allegedly affiliated with the Al-Khair University. In addition to the aforesaid, there are other documents on record issued by the HEC implying that the HEC does not recognize degrees issued by Al-Khair University granted to students who attended classes outside AJK like the respondent. Such documents are marked C to Mark F which the said witness RW3 admitted are also on the record of the HEC. Be that as it may, the question of the validity of a degree issued by Al-Khair University to a student attending classes at a campus/affiliated institute to the Province of Punjab came up for adjudication before a Full Bench of this Court wherein vide judgment reported as (PLD 2009 Lahore 449) Mian M. Azam Chaila v. Wajid Ali Khan and others it was held as follows:--
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'21. The upshot of the statement of the fact and of policy made by the HEC and the UGC is that Al- Khair University is not approved by the Provincial Education Department nor is it affiliated with any public sector university in the Province of Punjab or for that matter any other province of the country. As a result it has no examination centers in nor can offer examinations in Pakistan. B.A degrees awarded by Al-Khair University to students admitted in Pakistan do not enjoy recognition in Pakistan. To exemplify the point further, the above mentioned UGC letter dated 22-7-2002 encloses a list of universities engaged in the unlawful operation of Campuses in Punjab. In the year 2002 one of these universities had included Al-Khair University, Mirpur AJK. Pursuant to the action taken by the HEC Al-Khair's 'Campuses have been closed down in Pakistan. Therefore, it is legally and factually impossible for a private candidate to be enrolled by Al-Khair in Pakistan. Consequently, the petitioner who was so enrolled as an…
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