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Petitioner: FIDA HUSSAIN DERO VS Respondent: MUHAMMAD KHAN JUNEJO and others
Court Name: Election Tribunal Judge(s): Amir Hani Muslim Title: FIDA HUSSAIN DERO vs MUHAMMAD KHAN JUNEJO and others Case No.: Election Petition No,125 of 2002 Date of Judgment:2004-01-16 Reported As: 2004 CLC 1901 Result: Petition allowed accordingly
JUDGMENT
JUDGMENT 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.
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(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?
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(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
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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.
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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
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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
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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…
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