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Petitioner: Malik UMAR ASLAM AWAN VS Respondent: Mst SUMAIRA MALIK and others
Court Name: Election Tribunal Judge(s): Ijaz-ul-Ahsan Title: Malik UMAR ASLAM AWAN vs Mst SUMAIRA MALIK and others Case No.: Election Petition No,104 of 2008 Date of Judgment:2013-04-05 Reported As: 2013 CLC 984 Result: Petition dismissed
JUDGMENT
JUDGMENT ' IJAZ UL AHSAN, J.--- This election petition under section 52 of the Representation of the People Act, 1976 was filed by the petitioner against three respondents. Respondent No,1 namely Mst. Sumaira Malik was the returned candidate from. NA-69, Khushab-1 in the national elections held on February 18, 2008. The petitioner, who lost in the election, alleged commission of corrupt and illegal acts by and on behalf of respondent No,1, prior to the date of polling as well as on the day of the polls. He alleged that countless election offences and grave violations of law were committed by respondent No,1 in collusion with the government officials as well as the election staff. It was also alleged that the said violations materially and substantially affected the entire election process and rendered it impossible to have just, fair and lawful elections in the constituency. It was further alleged that the acts of malpractices, violations of law, coercion, intimidation and pressure tactics adopted by respondent No,1, rendered the electoral process void and caused a dishonest, unjust and unfair result of the constituency. It was stated that on the polling day, bogus votes were cast in majority of the polling stations and results therein were manipulated by and on behalf of respondent No,1 in collusion with the election staff as well as the Returning Officer in a large number of polling stations. It was further stated that the polling staff after completing the process of polls submitted their returns to the Returning Officer (R.O.). The R.O., without notice to the contesting candidates or their Polling Agents, in collusion with respondent No,1, manipulated the electoral record. There were also allegations of improper rejection of votes cast in favour of the petitioner and manipulation of consolidated statement of the result count. 2. In addition to the allegations of election malpractices, it was alleged that respondent. No,1 was a chronic defaulter, there were recovery suits pending against her in various courts and that the said
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facts were concealed by her at the time of filing her nomination papers. 3. 'In Paragraph-13 of the election petition, it was averred as follows:--- "These violations are a miniscule manifestation of other violations conducted by the respondent No,1 even prior to the Polling Day. Although respondent No,1 had done her 'Intermediate' in the year 1981 but till the year 2002 she remained a non-graduate. In order to circumvent her eligibility, she conceived a conspiracy to produce a fabricated Degree of Bachelor of Arts (BA) from the University of the Punjab. In the absence of any application form and or registration record as well as the record of examination, she in collusion with the educational officials of the University of the Punjab procured a false and bogus Degree of BA [underlining is mine]. The record to the best knowledge and belief of the petitioner was falsely created under direct and unlawful influence of the husband of the respondent No,1 who at that relevant time was the Additional Secretary (Schools), Government of Punjab. For all purposes, the alleged Degree of Bachelors is fabricated and manipulated; indeed in reality the respondent No,1 is not a 'Graduate' nor possesses qualification thereof In fact the stated Degree has been unlawfully procured by the respondent No,] in collusion with her husband and the University staff. " 4. It was also alleged that respondent No,1 did not qualify the criteria contained in the Constitution as well as the statutory provisions incorporated in the Representation of the People Act, 1976. She was neither sagacious nor righteous and neither honest nor amen. It was, therefore, prayed that the election of respondent No,1 be declared void and the petitioner be declared as the successful candidate from NA-69, Khushab-1 in the elections conducted on 18-2-2008. Any other relief in addition to and or in alternative of, in terms of section 55(2) of the Representation of the People Act, 1976 was also sought. 5. Respondent No,1 contested the petition. The other respondents did not contest the petition. In her reply, respondent No,1 raised various legal and factual defences and controverted all allegations praying for dismissal of the Election Petition. Vide order dated 11-5-2010, this Court framed the following issues:--- (i) Whether in the facts and circumstances given in the election petition, the election of NA-69 is void? OPP (ii) Whether the election petition is not maintainable and has been instituted in violation of the provisions of the Representation of the People Act, 1976? OPR 6. It is pertinent to mention here that on 17-9-2008, C.M.No,2 of 2008 was filed on behalf of respondent No,1 under section 63 of the Representation of the People Act, 1976 read with section 151, C.P.C. For dismissal of the Election Petition on the ground that the provisions of section 55 of the Representation of the People Act, 1976 had not been complied with. It was stated that the annexures appended with the petition had not been verified and attested in the manner provided in the Code of Civil Procedure, 1908 for verification of pleadings, which was violative of the mandatory provisions of section 55(3) of the Representation of the People Act, 1976. Therefore, the petition was liable to be out-rightly dismissed in terms of section 63 of the Representation of the People Act, 1976. It was further alleged that full particulars of witnesses and gist of their evidence in the form of affidavits had not been filed with the election petition. Hence the mandatory requirements of law as postulated by the procedure for trial of election petitions as required under Notification dated 17-3-1985 titled Procedure for Trial of Election Petition issued under section 62(1) of the Representation of the People Act, 1976 had not been fulfilled either. Other objections were also raised regarding verification of annexures, attestation by the Oath Commissioner etc. 7. Vide order dated 24-4-2009, C.M.No,2 of 2008 was dismissed by this Court. In paragraph-12 of the said order, this Court noted that "the learned counsel for the election petitioner conceded the claim of the applicant with the submission that as the document annexed by the election petitioner is supportive in nature to the pleadings and further being public/judicial documents, the
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same need not be verified. At this moment, the learned counsel for the applicant decided not to further argue the case but admitted that the election petition, affidavit, list of witnesses and list of documents have correctly been verified except the annexures " The order dated 24-4-2009 passed by this Court in C.M.No,2 of 2008 was challenged by respondent No,1 before the honourable Supreme Court of Pakistan in C.P.L.A. No,1322 of 2009. However, the said C.P.L.A. Was dismissed as withdrawn. In consequence, the order dated 24-4-2009 passed by this Court attained finality insofar as the objections relating to technical defects and violation of the provisions of section 55(3) of the Representation of the People Act, 1976 are concerned. 8. When the parties were called upon to produce evidence, the petitioner examined the following 8 witnesses:--- ' P.W.-1 Muhammad Ahmad Farooqi, President, LDA. Tribunal, Lahore; ' P.W.-2 Muhammad Tariq Hussain, Special Officer, Inland Revenue, IP Division, RTO, Lahore; ' P.W.-3 Muhammad Zubair, Election Officer, Office of the Provincial Election commissioner. ' P.W.-4 Ghulam Hussain Baloch, SI, Police Station Khushab District, Khushab ' P.W.-5 Muhammad Rauf Nawaz, Deputy Controller, Examination, University of the Punjab, Lahore; ' P.W.-6 Muhammad Ahmad Farooqi, President, LDA, Tribunal, Lahore;(sic) ' P.W.-7 Mazhar Iqbal, Officer, Inland Revenue, Regional Tax Office, Islamabad; ' P.W.-8 Malik Muhammad Aslam, the petitioner. 9. The petitioner also produced documentary evidence, which was exhibited as Exh.P/1 to Exh.P/29. 10. The respondent appeared as RW-1. In addition, the following documentary evidence was produced:--- ' Exh.R-1 Copy of Election Appeal No,24/A/2000 dated 16-9-2002 ' Exh.R-2 Copy of the order of the Supreme Court of Pakistan dated 24-3-2010 in C.P.No,1322 of 2009. ' Exh.R-3 Copy of written statement in a suit titled Muhammad Afzal Vs. Chairman Board etc. ' Exh.R-4 Copy of application under Order VII Rule 11, C.P.C. In the suit titled Muhammad Afzal Vs. Chairman etc. ' Exh.R-5 Copy of reply to the application regarding summoning of record under Order XII, Rule 10, C.P.C. ' Exh.R-6 Copy of application for summoning record under Order XIII, Rule 10, C.P.C. ' Exh.R-7 Copies of interlocutory orders in the suit titled Muhammad Afzal Vs. Chairman Board etc. From 14-12-2002 to 13-11-2003. ' In addition to the above following material was also exhibited on the record:--- ' Exh. RW/1 Signatures of respondent No,1 on her reply to the Election Petition; ' Exh.RW-1/1 Signatures of respondent No,1 on her affidavit; ' Exh.RW.1/2 Photograph of respondent No,1 on her registration/admission form; ' Exh. RW.1 Photograph of respondent No,1 on her Roll Number /2/1 Slip; ' Exh.RW-1/3 Admission/Registration form for appearing in B.A. Examination; 11. In addition, the sealed record, which had been received from the University of Punjab, Lahore and was submitted by P.W.-5 Muhammad Rauf Nawaz, Deputy Controller Examination was also tendered by respondent No,1 as part of her evidence. The learned counsel for the petitioner had no objection to the said record being tendered. However, he reserved his right to object to the veracity of the same. It may be pointed out that during final arguments before this Tribunal, neither party raised any objection regarding the veracity or authenticity of this record. In addition, no objection was raised regarding this record being read in evidence. Further, copy of the telephone bill for April, 2003, letter dated 7-9-2010 received from the Chairman NADRA titled verification/authentication record in NADRA, copy of the application moved by respondent No,1 for change of her date of birth in her national identity card dated 19-8-2002, copy of the national identity card of respondent No,1, attested copy of the secondary school certificate and attested copies of identity cards, which were
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made on a sheet of paper were also tendered with the request that the same be exhibited on the file. 12. The learned Local Commission, who recorded evidence, observed that the afore noted, documents were not per se admissible in evidence, therefore, the same could not be exhibited. However, these were placed on record. The question whether or not the documents could be placed on record was left to be determined in appropriate proceedings. Neither party addressed arguments on this question. However no objection was raised regarding judicial notice being taken of the said documents. 13. After the process of recording of evidence was complete, the learned counsel for the parties were called upon to address arguments. 14. The learned counsel for the petitioner, at the very outset, on instructions submitted that in the facts and circumstances of this case, he did not press any of the grounds relating to the allegations of commission of offences, casting of bogus votes, manipulation of election records and results, improper rejection of votes, manipulation of consolidated statement of result count, respondent No,1 being a defaulter etc. He submitted that the only ground that he pressed was that the degree of Bachelor of Arts (BA) issued by the University of Punjab in favour of respondent No,1 was fake and bogus. 15. The attention of the learned counsel for the petitioner has been drawn to the issues framed by this Court, which do not contain a specific issue relating to the degree of respondent No,l. He, however, submits that Issue No,1 is couched in language, which is wide enough to declare the elections of NA-69 void on the basis of the fact that the degree submitted by the respondent No,1 is bogus and her claim that she is a graduate, is false and incorrect. 16. The learned counsel for the petitioner submits that a perusal of the statement of the respondent and her cross-examination makes it abundantly clear that she had not appeared in the B.A. Examination in the year 2002. He points out that during her cross-examination, respondent No,1 who appeared. Before this Court was unable to recall correctly the subjects that she had offered and the content of the subjects that she studied to take the examination in the said subjects. By way of an example, the learned counsel for the petitioner has pointed out that a specific question was asked as to which essay, drama, poetry, short story and novel were in the prescribed courses for the English Language Compulsory Paper. Her response was that she did not exactly remember which books she had read. He has further pointed out that she was unable to recall how many questions from poetry, drama and prose were required to be attempted and which paper carried how many marks. He, therefore, argues that the allegation that respondent No,1 had never actually taken the B.A. Examination stands established, which substantiates the allegation that somebody else sat in the examination in her place. Therefore, the degree issued by the University of Punjab in her name is bogus. He further contends that the photograph of respondent No,1 on the admission form as well as the roll number slip is not her photograph. It is the photograph of a different lady. He states that a comparison of the photograph on the admission form and roll number slip with the photograph of respondent No,1 on her national identity card, issued in 2002 indicates that the photograph on the admission form is not of respondent No, 1. He further points out that the photograph of respondent No,1, which was taken in the NADRA Office and was the current photograph of respondent No,1 in 2004 further substantiates the fact that the person, who took the examination was different from respondent No, 1. He has also pointed out that a poster of respondent No,1, which was printed during her election campaign in the year 2002 also shows and confirms that the alleged photograph of respondent No,1 on her admission form submitted in the year 2002 is of a different lady. He adds that the signatures of respondent No,1 on the Admission/Registration Form Exh.RW.1, RW.1/1 and Exh.RW.1/3 differ from her signatures on different documents executed in 2002 or in the next two years. In this regard, he has referred to a copy of
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computerized national identity card as well as the manually issued identity card, the signatures on which do not match the signatures on the admission form. The learned counsel has also referred to Item-18 of the Instructions printed on the backside of the admission form, which states that each candidate must enclose three latest attested passport size photographs, with the form. He further submits that the examination form as well as the photograph were attested by Malik Tahir Sarfraz, who at the relevant time, was the Additional Secretary, Schools, Government of Punjab and happened to be the husband of respondent No,1. He, therefore, concludes that there is sufficient material available on record to hold that respondent No,1 did not appear in the B.A Examination, 2002. Another lady whose photograph appears on the Admission/Registration Form and Roll No, Slip (Exh.RW.1/2 and Exh.RW.1/2/1) appeared in her place. Therefore, the degree issued in favour of respondent No,1 by the University of Punjab is bogus. Consequently, it stands established that respondent No,1 is neither sagacious nor righteous or honest and was not eligible to contest or be elected as a Member of the National Assembly. 17. The learned counsel for respondent No,1, on the other hand, has, in the first place, submitted arguments regarding technical defects in the verification and attestation of the election petition and its annexures. The learned counsel has been confronted with the order passed by this Court in C.M.No,2 of 2008 on 24-4-2009 in which all the objections raised now had earlier been raised and dealt with through the said order. Further, his attention has also been drawn to the admission made by the then learned counsel for respondent No,1 that the election petition, affidavit, list of witnesses and list of documents had been correctly verified. The said matter was challenged before the honourable Supreme Court of Pakistan by way of C.P.L.A. No,1322 of 2009, which was dismissed as withdrawn. Therefore, the same questions having been settled once and having attained finality, cannot be reexamined and re-agitated at this stage. Therefore, the learned counsel for the respondent agreed to confine his submissions on the challenge thrown by the petitioner to the genuineness of the B.A. Degree of respondent No, 1 . In this regard, the learned counsel for respondent No,1 has referred to the statement of P.W.-5, who admitted that on complaints received from the petitioner relating to the degree of the respondent having been obtained fraudulently, a Committee was constituted, which examined the record, summoned respondent No,1, took the samples of her handwriting and after due probe exonerated her of the charge and her degree was held to be valid. P.W.5 produced the relevant record of the University of Punjab-relating to the inquiry report as well as the admission form and the roll number slip, which on the request of the parties was sealed and has been examined by this Court without any objection from either side. He further submits that admittedly the respondent, had taken her B.A. Examination in the year 2002. She could not be expected to remember the specifics of the subjects that she studied and the books she read in order to sit for the examination. Further, the inquiry committee constituted by the University examined the entire record personally summoned respondent No,1, took the samples of her handwriting, undertook a comparison of her handwriting with the handwriting on the answer sheets attempted by her, which were then in possession of the University (and have since been destroyed as per practice of the University) and found the allegations of impersonation to be baseless. He, therefore, submits that there is no material available on record of the Tribunal that may substantiate the allegation that the degree issued in favour of respondent No,1 was bogus and the outcome of someone else taking the examination in her place. 18. I have heard the learned counsel for the parties and examined the record with their assistance. 19. As noted above, during the course of arguments, the learned counsel for the petitioner stated that he had instructions to abandon all other grounds of attack. The only ground he pressed was that the election of respondent No,1 was liable to be declared void because she had procured a fabricated Degree of Bachelor of Arts (BA) from the University of the Punjab. The learned counsel
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for the petitioner only addressed arguments in support of the said ground and the learned counsel for respondent No,1 also confined himself to responding to the arguments of the learned counsel for the petitioner on that point alone. Therefore, the only question that requires determination by this Tribunal is as follows:--- "Whether respondent No,1 procured a fabricated degree of -Bachelor of Arts (B.A.) from the University of Punjab by arranging for some other lady to sit for the examination in her place, and hence her election is liable to be declared to be void." ' The answer to the above question will have direct bearing in deciding Issue No,1 ibid. 20. After hearing the learned counsel for the parties and examination of the record, I find that the answer to the aforesaid question has to be in the negative for the following reasons:--- (i) There is only one paragraph in the petition in which the allegation of fabricated degree has been levelled against respondent No, 1. It is important to note the exact language used in the said paragraph by the petitioner, so as to understand the exact nature and scope of the allegation made:- "that these violations are a miniscule manifestation of other violations conducted by the respondent No,1 even prior to the Polling Day. Although respondent No,1 had done her 'Intermediate' in the year 1981 but till the year 2002 she remained a non-graduate. In order to circumvent her eligibility, she conceived a conspiracy to procure a fabricated Degree of Bachelor of Arts (BA) from the University of the Punjab. In the absence of any application form and or registration record as well as the record of examination, she in collusion with the educational officials of the University of the Punjab procured a, bogus Degree [ [underlining is mine]. The record, to the best knowledge and belief of the petitioner was falsely created under direct and unlawful influence of the husband of the respondent No,1 who at that relevant time was the Additional Secretary (Schools), Government of Punjab. For all purposes the alleged Degree of Bachelors is fabricated and manipulated; indeed in reality the respondent No,1 is not a 'Graduate' nor possess qualification thereof In fact that stated Degree has been unlawfully procured by the respondent No,) in collusion with her husband and the University staff. " (ii) From a perusal of the averments made in Paragraph-13 ibid, it will be seen that the specific allegation was that there was neither an application form nor registration record or any other record indicating that respondent No,1 actually sat for the examination. The precise allegation was that in the absence of any application form and/or registration record as well as record of examination, she procured a fake and bogus degree. It was further alleged that the record, if any, available with the University was falsely created under direct and unlawful influence of the petitioner's husband. (iii) In the reply to the petition, respondent No,1 denied the allegations as false and frivolous. She took the stance that she was a bona fide graduate and the allegations were highly degrading and vague; (iv) It is also significant to note that during the course of trial, the petitioner changed his stance from fabrication of the record and, absence of application form, registration record of examination to a different plea. This time, the petitioner implied that although all relevant record was available, it was a case of impersonation insofar as the person who submitted the forms received a roll number slip and sat for the examination and whose photograph was attached on the Admission Form and Roll Number Slip, was not respondent No,1, but a different lady who was an impersonator. Only the Admission/Registration form contained the particulars of respondent No,3. The petitioner did not succeed in substantiating this allegation through any credible documentary or oral evidence whatsoever; (v) It is important to point out that the petitioner has a long history of political rivalry with respondent No,l. The parties have been pitched against each other during at least two previous
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elections. It appears that in both elections, respondent No,1 prevailed over the petitioner. This political rivalry has also led to long drawn litigation between the parties which has gone to various for a including courts of law as well as the University of Punjab, During the course of trial, the original record of the University of Punjab was summoned. Mr. Muhammad Rauf Nawaz, Deputy. Controller (Examination) was also examined as P.W.-5. I will discuss the details of record, the statement of Mr. Muhammad Rauf Nawaz and the details of documents, which admittedly constitute a part of the record of the University of Punjab at a later stage. What is important to note is that the allegation of impersonation was levelled by the petitioner against respondent No,1 for the first time in the year 2002 by way of an application before the University of the Punjab. The said charges were not proved and after due inquiry in which the both parties participated, the degree of respondent No,1 was found to be valid and the charge of impersonation was found to be baseless by a Committee of the University of the Punjab consisting of:--- ' Sh. Rehmat, Assistant Controller-II; ' Muhammad Akram Khan, Deputy Controller (Examination); Muhammad Akram Khan, Deputy Controller (Secrecy). ' The said findings of University of the Punjab were never challenged before any forum and have attained finality. In his petition before this Court, the petitioner, in the first…
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