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Petitioner: HAROON AKHTAR KHAN VS Respondent: Sheikh AMJAD AZIZ and others
Court Name: Election Tribunal Judge(s): Mian Hamid Farooq Title: HAROON AKHTAR KHAN vs Sheikh AMJAD AZIZ and others Case No.: Election Petition No,59 of 2002 Date of Judgment:2004-02-15 Reported As: 2005 CLC 1550 Result: Petition allowed
JUDGMENT
JUDGMENT ' Haroon Akhtar Khan, the election petitioner, through the filing of the instant election petition, has called in question notification dated 20-10-2002, issued by the Election Commission of Pakistan, whereby Sheikh Amjad Aziz, respondent No,1 (hereinafter referred to as the' respondent) was declared as returned candidate from Constituency PP-156, Lahore XX, with the further prayer that the said elections to the extent of respondent No,1, be quashed and declared Void and the petitioner be declared as duly elected M.P.A. From the said Constituency. 2. Briefly stated the facts culminating to the filing of the present election petition are that the petitioner along with the respondents contested the General Elections, held on 10-10-2002, for the seat of Punjab Provincial Assembly from. Constituency PP-156, Lahore XX. According to the consolidation statement of the results (Exh.P.14), the respondent secured 11716 votes, while 10711 votes went to the share of the petitioner. Consequent thereto, the respondent was declared as returned candidate from the said constituency and the requisite notification was issued by the Election Commission of Pakistan on 20-10-2002 thereby declaring about the success of- the respondent. ' Discontented with the said results, the election petitioner filed the election petition under section 52 of the Representation of People Act, 1976 (hereinafter referred to as Act) before the learned Chief Election Commissioner, which was entrusted to this Tribunal for trial and disposal in accordance with law. 3. The Election petitioner has challenged the election of the respondent, mainly on the grounds, as discernible from the contents of the election petition, that although the respondent was neither a graduate nor he possessed by Bachelor degree, yet his nomination papers were unlawfully
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accepted by the Returning Officer and that the said respondent has deliberately fabricated and forged B.Sc. "pass result intimation". It has further been asserted that the respondent has not even passed his Intermediate Examination. 4. All the respondents were summoned but only respondents Nos.1, 4 and 5 entered appearance. The respondents Nos.2, 3 and 6 to 10 remained absent throughout, despite publication in two daily newspapers, and thus, they were proceeded ex parte vide order dated 20-2-2003. Only respondents Nos.1, 4 and 5 resisted the election petition through filing their separate written replies. 5. The elected candidate, the respondent, in his written reply, raised certain preliminary objections and controverted the allegations made in the petition, inter alia, pleading that the election petitioner had filed various applications to different authorities, however, Board of Secondary Education as well as Board of Technical Education came to the conclusion that the respondent appeared in Diploma Examination and was declared successful. It was further asserted that the result of the respondent, regarding his graduation, had already been announced by the University, therefore, the same cannot be called in question in the election petition, that too after the lapse of three years. According to the respondent, as is evident from para.2 of his written reply, the respondent passed his graduation in the year 1989, under Roll No,3997 having Registration No,87-Z-26954, and passed in the first attempt opting for the subjects of Statistics, Math "A" and Math "B" securing 609/800 marks" ... The respondent No,4, in his written statement, has also prayed for the cancellation of the notification and holding of re-elections. The respondent No,5, in his written statement, has admitted the contents of the election petition as correct and prayed for the holding of fresh elections. 6. This Tribunal, out of the divergent pleadings of the parties, on 28-2-2003, framed the following issues:-- Issues (1) Whether the election petition is not maintainable due to non-compliance of provisions of section 52(2) of the Representation of People Act, 1976? OPR (2) Whether the petition suffers from mis-joinder of parties, if so, its effect? OPR (3) Whether on the date of filing of the nomination papers for election for Constituency PP-156 (Lahore XX), the respondent No,1 was not possessed of a bachelor degree in terms of Article 8-A of the Conduct of General Elections Order, 2002? OPP (4) Whether the election of respondent No,1, is liable to be declared as null and void and the petitioner is entitled to be declared as returned candidate? OPP (5) Whether facts and circumstances of the case warrant and justify the re-election, under the law? OPR-4. (6) Relief." ' The application (C.M. No,5 of 2003), filed by the respondent was allowed and this Tribunal, on 23-1- 2004, framed the following additional issues:-- "(5-A) Whether the petition is violative of section 55(3) of the Representation of the People Act, 1976, since schedules to the election petition are neither signed nor verified in the manner laid down in C.P.C.? OPR? 7. In support of his case and in order to discharge the onus of the issues, the petitioner produced the following documentary evidence:-- (1) Report and parawise comments on behalf of Punjab University in Writ Petition No,19453 of 2002. (Exh.P.1). (2) Signature of Registrar Punjab University. (Exh.P.1/1). (3) Letter from Assistant Controller (Certificates) to the respondent No,l. (Exh.P.2). (4) Admission form of respondent No,1 for Bachelor of Science, 2nd Annual Examination, 1989. (Exh.P.3).
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(5) Result Gazette, Bachelor of Science 2nd Annual Examination, 1989 (Exh.P.4). (6) Application form for obtaining degree. (Exh.P.5). (7) Letter from the petitioner to the Controller/Additional Controller (Exams) University of the Punjab, Lahore (Exh.P.6). (8) Report of Forensic Science Laboratory, Punjab, Lahore. (Exh.P.7). (9) Result Statement of Intermediate Examination (Science Group), Annual, 1984. (Exh. P. 8). (10) Result Statement of Intermediate Examination (Science Group) Supplementary, 1984. (Exh.P.9). (11) Result Statement of the Secondary School Examination Spring, 1982. (Exh.P.10). (12) Result Register of C. Com. Supplementary, 1985, (Punjab Board of Technical Education). Exh.P.11). (13) Result Register of D. Com. Annual, 1987, (Punjab Board of Technical Education). (Exh. P.12). (14) Photo copies of Nomination Papers of respondent No, 1. (Exh. P. 13). (15) Consolidated statement of result of count of PP-156, Lahore. (Exh . P.14). (16) Signature of Assistant Controller (Exams.-I). (Exh.P.W.4-1). (17) Signature of Assistant Controller (Examination). (Exh.P.W.4-2). ' So far as the oral evidence of the petitioner is concerned, the same comprises of the following witnesses:-- (1) Col. (Rtd.) Masudul Haq, Registrar, University of the Punjab, Lahore. (P.W. 1). (2) Dr. A. Basit, legal Adviser, University of the Punjab. (P.W.2). (3) Makhdoom Ashraf, Assistant, R.K.J.II, Branch Lahore High Court, Lahore. (P.W.3). (4) Abdul Ghaffar, Deputy Treasurer (Retd.). (P.W.4). (5) Ishfaq Khalid, Superintendent, Record, Matric Branch, Board of Intermediate. (P. W . 5). (6) Muhammad Ayub, Deputy Secretary, Punjab Board of Technical Education. (P. W.6). (7) Abdul Rauf, Ahimad, to the Court of Mian Khadim Hussain, Returning Officer, PP-156. (P.W.7). (8) Election Petitioner. (P.W.8). ' The respondent has produced the following documents:-- (1) Application for verification of pass Result Intimation. (Exh.R.1). (2) Copy of Pass Result Intimation. (Exh.R.2). (3) Copy of National Identity Card of the respondent. (Exh.R.3). (4) Photo copy of F.I.R. (Mark "A"). ' The respondent did not produce any oral evidence, except got recorded his own statement. 8. I have heard the learned counsel for the parties at length and perused the available record. My findings on all the issues are as under:-- Issue No,1 "Whether the election petition is not maintainable due to non-compliance of the provisions of section 52(2) of the Representation of the People Act, 1976? OPR" ' The onus to prove this issue was on the respondent. The learned counsel for the respondent did not press this issue, hence, the same is decided against the said respondent. 9. Issue No,2. "Whether the petition suffer from mis-joinder of parties, if so, its effect? OPR" (i) The learned counsel for the respondent has submitted that as the University of the Punjab, its Registrar and the Controller of Examination have not been made parties in the present election petition, therefore, the same is not only liable to be dismissed, but all the documents produced by the Registrar, and Punjab University, cannot be relied upon. His further submission is that the non- impleadment of University Authorities renders the petition as incompetent, therefore, no relief can be granted to the election petitioner. Learned counsel for the petitioner has refuted the aforenoted contentions. (ii) Section 54 of the Representation of the People Act, 1976 envisages that all the contesting candidates and any other candidate, against whom any allegation of any corrupt or illegal practice is made, shall be joined as respondents to the election petition. It flows from the bare reading of the said provision of law that the contesting candidates and any other candidate, within
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the category of clause (b) of section 54, are the necessary parties to be impleaded in the election petition. I have examined the election petition and find that the petitioner has impleaded all the candidates, who contested the election from the Constituency PP-156, Lahore-XX. The present election petition is in consonance with the provisions of section 54 of the Act, 1976, as noted above, thus, the same does not suffer from non-joinder of necessary parties. Additionally, I find that the University Authorities are neither necessary nor proper party in the election petition, as no relief has been claimed against the University Authorities. As regards the contention of the learned counsel with respect to the documents, produced by the Registrar, Punjab University, the same has little substance. The Registrar of the Punjab University was summoned through this Tribunal by the Election petitioner, as one of his witnesses, he was examined as P.W.1, who produced the original record, and certain documents were admitted in evidence and exhibited, to which no objection was raised by the learned counsel for the respondent. Even according to the stance of the said respondent, he is also relying upon the documents, so produced by P. W.1. (iii) In view whereof, the contentions raised by the learned counsel in this regard are misconceived and unfounded, hence Issue No,2 is decided against the respondent. 10. Issue No,3. "Whether on the date of filing of the nomination papers for election for Constituency PP-156 (Lahore XX), the respondent No,1 was not possessed of a bachelor degree in terms of Article 8-A of the Conduct of General Elections Order, 2002? OPP" (i) Issue in hand is a most crucial issue, on which, the parties to the election petition are really at variance. Stance of the election petitioner, as highlighted in the election petition, is that the returned candidate is not a graduate and on the day of filing of the nomination papers, he was not possessed of Bachelor Degree. The defence of the returned candidate is that he is holder of Bachelor Degree having passed B.Sc. Examination in the year 1989, II-Annual, held on 2-4-1990, however, no degree was issued to him and the University Authorities only issued and sent pass result intimation to him, thereby intimating that he has qualified graduation examination and on the basis of the said intimation, he filed his nomination papers, which were accepted by the Returning Officer and no objection was raised by the petitioner. He has further pleaded that he applied for obtaining the original degree which has not yet been supplied by the University Authorities. (ii) Onus of this issue was on the election petitioner, who in order to discharge the onus of said issue, tendered certain documents in evidence, which were admitted in evidence and exhibited as Exh.P.1 to Exh.P.14 without any objection, raised by the respondents. In addition to the said documents, the petitioner produced oral evidence, which comprises of P.W.1 to P.W.B. In rebuttal the respondent No,1 produced only three documents i,e, Exh.R.3 to Exh.R.5, however, he did not produce any oral evidence and felt contended only after got recorded his own statement. (Note. Details of documentary and oral evidence produced by the parties have been given in para.7 of this judgment). (iii) The learned counsel of the petitioner, while referring to the evidence on record, has submitted that the returned candidate, at the time of the filing of the nomination papers, did not possess the Bachelor Degree and that he was not a graduate to contest the E election to be chosen as M.P.A. He has further contended that in order to take B.Sc. Examination, a candidate must have studied, at intermediate level or C.Com. D.Com., the subjects of Maths and Statistics. In this context, he has referred to the statement of P.W.2. He has further submitted that Gazette Notification (Exh.P.4) is entirely based upon the result intimation card (Exh.R.2), which was forged by the respondent, as held by the Disciplinary Committee of Punjab University in its report (Exh.P.1). The learned counsel has added that in view of the evidence on record, it has been proved that the respondent neither sat in B.A. Or B.Sc. Examination nor possessed any graduation degree, more so when the respondent could not produce any evidence in rebuttal. Conversely, the learned counsel for the
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respondent, while referring and relying upon the Admission Form (Exh.P.3), Gazette Notification (Exh.P.4), pass result intimation (Exh.R.2) and application for obtaining graduation degree (Exh.P.5), has submitted that the respondent passed the graduation examination in the year 1989 and although no degree was issued by the University Authorities yet on the basis of the pass result intimation, it can be said and claimed that he was in possession of bachelor degree at the time of filing of the nomination papers. He has further submitted that the registration number is a basic document/requirement, after the issuance of registration number, a candidate cannot be debarred from appearing in the examination and when the registration number is available, then admission form is of no significance. He has added that it would not be safe to rely upon the statement of two ex officials of University after the lapse of 12 years. His further submission is that the issuance of result card is an administrative act after the completion of entire process of examination and that after the issuance of Gazette notification, all the earlier documents, loose their significance. The learned counsel for the respondent No,5 although has supported the case of the petitioner and prayed that the election of the respondent may be declared void, yet his submission is that the election petitioner may not be declared as a returned candidate, as there is no evidence on record to this effect, inasmuch as the petitioner has not stated in his examination- in-chief that he may be declared as returned candidate. (iv) Exh.P.10 shows that the respondent No,1 passed matriculation examination in the year 1982 securing 345 marks. According to Exh.P.8 and Exh.P.9, the respondent failed in intermediate examination of Annual 1984 and supplementary 1984. P.W.5 has stated that according to the record of Board of Intermediate and Secondary Education, the respondent never passed intermediate examination. Additionally, the respondent in cross-examination has also deposed that he never passed F.Sc. Examination. In view whereof now the admitted position is that the respondent never passed Intermediate examination. (v) According to Exh.P.11 the respondent passed C.Com. Examination in supplementary, 1985 held on 17-11-1985. Exh.P.12 shows that the respondent No,1 qualified D.Com. Examination Annual , 1987 held on 18-6-1987. The election petitioner could not produce any evidence in order to dislodge the veracity, accuracy and genuineness of Exh.P.10, Exh.P.11 and Exh.P.12, inasmuch as these documents were produced by the petitioner himself, which were admitted in evidence without any objection from the opposite party. As a matter of fact, the respondent is also banking upon all the afore- mentioned documents. In the above background it is proved beyond any shadow of doubt that the respondent passed examinations of matriculation, C.Com. And D.Com. (vi) It could not be proved on record as to whether the diplomas of C.Com. And D.Com. Are equivalent to intermediate examination. No such document was produced in evidence by either of the parties in order to show that the diplomas of C.Com. And D.Com. Are equivalent to Intermediate Examination or vice versa. Learned counsel for the respondent has placed on record a certificate dated 9-9-2003, issued by the Punjab Board of Techn. ' Education thereby reproducing the decision of Committee of Intermediate Board Committee of Chairman, which is to the effect that "the course of C.Com. And D.Com. Offered by Punjab Board of Technical Education is equal to 11th and 12th class examination offered by Board of Intermediate and Secondary Education." To my mind, since the said certificate is not a part of the evidence, neither the same is admitted document, therefore, the same cannot' be considered while deciding the controversy in hand. (vii) Admittedly, according to the stance of the respondent, he possesses Bachelor Degree, however, no graduation degree was issued to him despite the fact that he applied to the University Authorities for the issuance of B.Sc. Degree on 27-8-2002. Further admittedly at the time of filing nomination papers, for the seat of Provincial Assembly, he was only possessed of photo copy of pass intimation card, as the original of the said card was reportedly lost on the day of filing
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nomination papers. Undisputedly, at the time of filing of nomination papers, the respondent only produced photo copy of B.Sc. Result intimation card and no other document was submitted before the Returning Officer to show that the respondent is a graduate. This fact has frankly been conceded by the respondent in his cross ... Gazette notification, the respondent filed an application before University Authorities for getting B.A. Degree, but the same was not supplied to the petitioner even uptil now. Only on the basis of the photo copy of pass result intimation and the Gazette notification, it cannot be legitimately argued that on the day of filing of the nomination papers; the said respondent was possessed of a bachelor degree. (viii) The petitioner in order to prove certain documents, summoned the official witnesses together with the relevant record, through the process of this Tribunal, who brought the original record and stated that these are true copies of the original record and thereupon the said documents were admitted in evidence and exhibited, that too without any objection from the respondent side P.W.1 is the Registrar of the Punjab University, who brought the original summoned record and, in his statement, he got exhibited six documents i,e, Exh.P.1. To Exh.P.6. This witness, in his examination-in- chief, elaborately stated that there are certain irregularities in the admission form submitted by the respondent; that the University Authorities did not issue any graduation degree to the respondent and that when the respondent applied for the graduation degree, the University Authorities made some queries, through letter, dated 4-11-2002, but the same was not replied to by the respondent. Tenor of cross-examination on this witness shows that the respondent intends to prove that the University Authorities having properly maintained the record and its record, has no legal value. The respondent did not produce any evidence to demonstrate that he is in possession of bachelor degree. Strangely enough on the one hand, he is simultaneously relying upon the documents, produced by the petitioner, and admitted in evidence and on other hand trying to prove that the record produced by P.W.1 is not reliable and unbelievable. Additionally the respondent, on the basis of the admission form (Exh.P.3) Gazette notification (Exh.P.4) and pass result intimation (Exh.R.2) has agitated that he passed the examination of Bachelor of Sciences. In view whereof the cross- examination on this witness is of no avail to the respondent No,l. (ix) In the above scenario the report and parawise comments submitted by the Punjab University (Exh.P.1), is of great significance. As noted above, all the documents, including Exh.P.1, were admitted in evidence and exhibited without any objection from the respondent side in the statement of different witnesses, who brought the original record in respect of those documents, thus, all the documents are deemed to be admitted documents between the parties. Exh.P.1 was proved in the statement of P.W.1 (the Registrar of the University of the Punjab), who appeared along with the original record and stated that he signed the report, which bears his signatures (Exh.P.1/1). Specially said document, coupled with other admitted documents. Form No,66684 (Exh.P.3), before the University Authorities, to appear in B.Sc. 1989, 2nd Annual Examination. This admission form although was signed by the respondent, yet does not indicate the date on which it was either filled or submitted before the University Authorities except the Rubber Stamp of the Form Section of the University of the Punjab, which shows that said form was received in the Form Section on 28th of April, 1990. In the absence of any other date on the admission form, in the handwriting of the respondent or otherwise, the presumption, would be that the said form was submitted and received by the University Authorities on 28-4-1990. Prior to this, the said respondent had duly been registered as a student/candidate and Registration No,87-Z-26954 was issued to him. He appeared in the aforenoted examination and according to pass result intimation (Exh.R.2), he was declared successful in the first division obtaining 609/800 marks, gazette result (Exh.P.4) indicates that Sh. Amjad Aziz son of Abdul Aziz was declared pass in B.Sc. 2nd Annual Examination, 1989, having secured 609 marks. Admittedly no B.Sc. Degree was issued to the respondent. Thereafter, on 27-8-2002, the respondent filed an application (Exh.P.5) before the University Authorities,
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requesting therein that B.Sc. Degree may be issued to him, which application was registered with the University Authorities at No,11907-F. Letter dated 4-11-2002 (Exh.P.2) to the respondent, thereby requiring the respondent to furnish certain documents, which letter was never replied to by the respondent. In this regard, the statement of P.W. I can be referred, wherein he deposed that the University Authorities did not receive any letter from the respondent in response to Exh.P.2. Additionally, the respondent has admitted in the cross-examination that he did not send any reply to the University Authorities to the letter dated 4-11-2002. It appears from the record and Exh.P.1 that pursuant to the receipt of the said application, for obtaining the B.Sc. Degree the University Authorities initiated some sort of inquiry, traced out the original admission form of respondent No,1 and inter alia, found that it was received by the University of the Punjab on 28-4-1990, while the duration of the 2nd Annual Examination, 1989 was from 2-4-1990 to 25-4-1990. According to Exh.P.1, Ex-employees of the University, whose signatures appeared on the Result Intimation Card, were summoned by the University Authorities and were shown the pass result intimation card. One of the said employees, namely, Abdul Ghaffar Khan, Deputy Treasurer (Rtd.) appeared as P.W.4 and recognized his signatures as Exh.P.W.4/1, however, he could not recognize his signatures on the photobopy of the pass result intimation card. The said witness admitted that, his specimen signatures were sent to the Forensic Science Laboratory for comparison. He further stated that the signatures appearing as Exh.P.W.4/2 does not look like to be his signatures. Signatures of these Ex- employees of the University were sent to Forensic Science Laboratory and the report was received by the University, which is Exh.P.7. It may be noted that the report of the Forensic Laboratory and the pass result intimation were admitted in evidence and exhibited as Exh.P.7 and Exh.R.2 with the…
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