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Petitioner: Mian SAIF-UR-RAHMAN VS Respondent: Malik IQBAL AHMAD LANGRIAL and 4 others
Court Name: Election Tribunal Judge(s): Nasir Saeed Sheikh Title: Mian SAIF-UR-RAHMAN vs Malik IQBAL AHMAD LANGRIAL and 4 others Case No.: Election Petitions Nos.142 and 139 of 2008 Date of Judgment:2012-08-08 Reported As: 2012 CLC 1806 Result: Order accordingly
JUDGMENT
JUDGMENT ' NASIR SAEED SHEIKH, J.--- This election petition was fixed for hearing today vide order dated 1-8- 2012 with the consent of Sh. Sajid Mahmood, Advocate learned counsel for the respondent No, 1. The order dated 1-8-2012 is reproduced:- "This case was called at 10.50 a.m. And Sh. Sajid Mahmood, Advocate learned counsel appeared before the Court and paid the cost of Rs,10,000/- to the learned counsel for the election petitioner and made a request that Mr. Ahmad Awais, Advocate, the senior counsel is busy before another Bench and he will address the arguments today. Accordingly the matter was directed to be heard after the court proceeding of Division Bench. At about 12-5 p.m. Mr. Waheed Ahmad, another learned Advocate appeared and stated that Mr. Ahmad Awais, Advocate learned senior counsel is busy before another Division Bench headed by Mr. Justice Farrukh irfan Khan and the matter be kept in wait. At 12-55 p.m. Sh. Sajid Mahmood, Advocate learned counsel came and states that Mr. Ahmad Awais, Advocate learned senior counsel could not spare time for this case today. The learned counsel prays that a short adjournment be granted and in case Mr. Ahmad Awais, Advocate learned senior counsel is not available on the next date of hearing Sh. Sajid Mahmood, Advocate learned counsel who is a counsel in the matter undertakes to address the arguments and no further adjournment shall be obtained. The case is directed to be listed on 8-8-2012 at S. No,1 immediately after urgent cases." ' Today an application has been sent by Sh. Sajid Mahmood, Advocate that on account of his illness he is unable to appear before this Court. There is also a request for adjournment on behalf of Mr. Ahmad Awais, Advocate learned senior counsel that on account of some personal engagements he is not able to appear before this Court.
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2. This election petition is pending for hearing the arguments of the learned counsel for the respondent No, 1. The evidence in this case was completed by the Local Commission and the report after the completion of the evidence was submitted by the Local Commission on 5-11-2011. Thereafter the case was fixed for 11-11-2011 and the learned counsel for the respondent No,1 was not available. Through a C.M. Dated 24-11-2011 the case was again fixed for 29-11-2011 and the learned counsel for the respondent No,1 was not available. On 2-12-2011 the learned counsel for the contesting respondent No,1 was not available. The arguments were partly heard on 7-12-2011, 14-12- 2011 and 19-12-2011 and the case was then adjourned to 22-11-2011 and the learned counsel for the respondent No,1 sent a written request for adjournment. The case was relisted next day and nobody appeared on behalf of the respondent No,l. The case was then relisted on 27-3-2012 and the learned counsel for the respondent was not available and it was directed to be listed on 6-4-2012 along with connected Election Petition No,139 of 2008. 3. On 20-4-2012 a C.M.No,1 of 2012 was moved by respondent No,1 through his counsel for summoning the witnesses from Madrasa Qur'an ul Arabia for cross-examination. The case was ordered to be put up for hearing on 23-4-2012. The learned counsel for the respondent No,1 did not appear. On 2-5-2012 the learned Counsel for the respondent No,1 sent a written request for adjournment. The case was then adjourned to 4-5-2012. Sh. Sajid Mahmood, Advocate partly addressed the arguments on the C.M. Vide order dated 4-5-2012 the C.M. Was dismissed. The case then came up for hearing on 8-5-2012 Sh. Sajid Mahmood, Advocate gave an undertaking before this Tribunal to argue the case on behalf of the respondent No,1 on 18-5-2012 on which date i,e, 18- 5-2012 Sh. Sajid Mahmood, Advocate did not turn up and the following order was passed:- "Sheikh Sajid Mehmood Advocate undertook to come prepared in this case for arguments today which was fixed with his consent. A written request for adjournment on behalf of Mr. Ahmad Awais Advocate, who rarely appeared in this case has been submitted. It is an election petition. The learned counsel for the petitioner has raised serious objection upon the grant of adjournment on the ground of non-availability of Mr. Ahmad Awais Advocate. I have no alternative but to proceed with the hearing of the arguments of the learned counsel for the petitioner. 2. Arguments of the learned counsel for the petitioner are in progress. To come up for further arguments on 23-5-2012 as requested by the learned counsel for the petitioner". 4. The arguments of the learned counsel for the petitioners in the Election Petition No,142 of 2008 were completed on 30-5-2012 and the case was fixed for 31-5-2012 for hearing the arguments of the learned counsel for the petitioner of Election Petition No,139 of 2008. Another C.M.No,2 of 2012 was moved in Election Petition No,142 of 2008 by the respondent No,5 (This respondent is the real daughter of the respondent No,1 and contested the election of 2008 for the same seat of PP-226 Sahiwal-VII and lost the election) for cross-examining the witnesses of the opposite party. A similar application was moved by Mst. Amna Naveed in E.P.No,139 of 2012. Both these C. Ms. Were dismissed vide order dated 7-6-2012 passed by this Tribunal. On 17-7-2012 C.M.No,3 of 2012 was moved on behalf of the respondent No,1 for allowing him an opportunity to argue the case and vide order dated 25-7-2012 this application was not contested by the election petitioners subject to payment of cost of Rs,10,000/-. The case was adjourned to 1-8-2012 and the above reproduced order was passed with the consent of the learned counsel for the respondent No,1 Sh. Sajid Mahmood, Advocate and the case was adjourned to 8-8-2012. 5. The record of the case reflects that the respondent No,1 has been provided sufficient opportunities to address his arguments in the matter eversince the month of November, 2011. Numerous opportunities were granted and adjournments were sought by the learned counsel for the respondent No,1 on one pretext or the other. Today again an application for adjournment has been sent on behalf of the learned counsel for the respondent No, 1. The learned counsel for the respondent No,1 have deliberately adopted dilatory tactics in this matter and are not rendering any
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assistance to the Tribunal. Even in the application for adjournment moved on behalf of the learned counsel Sh. Sajid Mahmood, Advocate the nature of his sickness is not described nor any medical certificate is appended. 6. In view of the above the adjournment request on behalf of the learned counsel for the respondent No,1 is declined. 7. At this stage the learned counsel Ch. Waseem and Muhammad Akbar Cheema appeared on behalf of the respondent No,2 in Election Petition No,142 of 2008 who is also the respondent No,5 in Election Petition No,139 of 2008. Mr. Tipu Salman Makhdoom learned Advocate has now also appeared in both the election petitions for the respondent No,1 and the power of attorney of the said learned Advocate is already on the record and he along with other counsel have addressed the arguments on behalf of the respondent No,1 of both the election petitions. It is pointed out that the learned counsel for the respondent No,2 of Election Petition No,142 of 2008 and of the respondent No,5 in Election Petition No,139 of 2008 respectively have also addressed the arguments in support of the respondent No, 1. 8. The arguments have been heard and record perused. 9. This judgment will dispose of both the Election Petitions Nos.139 of 2008 and 142 of 2008 as both the election petitions are in respect of the same constituency and are against the same contesting respondent No,1 Malik Iqbal Ahmad Langrial. 10. All' the respondents and the petitioners of Election Petitions Nos.139 of 2008 and 142 of 2008 contested the general election for the seat of Member Provincial Assembly from PP-226 Sahiwal-VII held on 18-2-2008. The respondent No,1 was declared successful candidate. And was notified as a returned candidate by the Election Commission of Pakistan vide notification dated 1-3-2008 Exh.PW3/1. The two election petitions were instituted against the respondent No,1 and others before the Election Commission of Pakistan. Jamsahid Ali Chaudhry instituted Election Petition No,17 of 2008 whereas Mian Saif-ur-Rehman instituted Election Petition No,18 of 2008. Both these election petitions were entrusted to the Lahore High Court by the Election Commission of Pakistan and were earlier sent to Election Tribunal at Multan Bench vide order dated 15-4-2008. Later the election petitions were transferred to the Principal Seat vide order dated 24-3-2012 passed by the Election Commission of Pakistan and were respectively numbered as Election Petitions Nos.139 of 2008 and 142 of 2008. 11. The election petitioners in both the cases have assailed the eligibility of the respondent No,1 to contest the election. It has been alleged that the respondent No,1 claimed to be holder of a B.A. Degree on the basis of Sanad-ul-Feraag issued by Madrassa Al-Qur'an Arabia Bahrol-ulom Shikarpur and a Sanad of Shahadat-ul-Almia BA plus issued by Jamia Talemat-ul-Islamia Faisalabad-Rawalpindi in the column of A education qualifications at the time of submitting his nomination papers for contesting the elections. The petitioners contend that both the above stated institutions are not recognized by the Higher Education Commission for the purpose of declaring the equivalence for graduation degree. It was further alleged that notwithstanding the above mentioned objections the respondent No,1 did not qualify the newly-introduced condition of passing the two elective subjects of Pakistan Studies and Islamic Studies so as to be eligible to claim the equivalence on the basis of the above mentioned Sanads of Deeni Madrasas for contesting the election. It is further contended in the election petitions that the respondent No,1 was previously a candidate for NA-163 Sahiwal in the by-elections of 2002. At that time he claimed himself to be a graduate and produced matriculation certificate bearing Roll No,42168 pertaining to the year 1959 allegedly issued by BISE, Lahore whereas the said roll number was issued in the name of one Iqbal Tabash. It is further alleged in the petitions that the F. A. Certificate produced by the respondent No,1 before the Returning Officer during the earlier election of 2002 was bogus as the roll number in the year 1962 for F.A. As claimed by the respondent No,1 was 32847 whereas the
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serial number for the said year of F.A. Roll numbers ends at 31415. It is further alleged that the controversy about the claim of the education- qualification in the year 2002 of the respondent No,1 was raised before the Election Tribunal in Election Appeal No,384 of 2002 and vide judgment pronounced on 26-12-2002 it was declared by the Election Tribunal that the respondent No,1 is an imposter. The election petitioners contend that having been so declared in the year 2002, the respondent No,1 procured fabricated sanads of Deeni Madrasas and on the basis of these Sanads which Madarassas were not even recognized by the HEC, the respondent No,1 contested the elections and got himself declared as successful candidate. The election petitions were therefore prayed to be accepted with a further direction to de-notify the respondent No,1 from the list of returned candidates. 12. The Election Petitions were contested by the respondent No,1 only who submitted written statements. A number of preliminary objections were raised. On the factual side the respondent No,1 claimed that the Deeni Madrasas from which the respondent No,1 is claiming Sanads were duly recognized by the Election Commission of Pakistan. The contents of paras 4 and 5 of the Election Petition No,142 of 2008 were replied by the respondent No,1 in the following manner:- "4. That Paragraph No,4 of the election petition is not admitted to be correct. The Dini Madrisas which issued the ,Sanad to the petitioner are included in the notification issued by the Election COMMiSSiOh of Pakistan dated 25-07-2002 and issued by U. G. C. (HEC) dated 25-07-2002. 5. That Paragraph No,5 of the election petition is not admitted to be correct. According 'to Notification No,F2(11)12002- CORD dated 29-7-2002 issued by Election Commission of Pakistan it was clarified that the holders of the Sanad Shadat-ul-Almia Fil Aloom Al-Arbia-Wal-Islamia granted by Wifaq/Tanzeem-ulMadaris and approved by individual Dini Madaris which has been recognized as equivalent to M.A. Arabic/Islamic Studies for teaching purposes by the University Grants Commission shall be eligible to contest the forthcoming General Elections subject to fulfilment of other qualifications. This clarification/ notification makes it clear that the answering respondent was entitled to contest the election without passing the additional subjects and the said notification was never discussed in any judgment." 13. The respondent No,1 further took up the plea in para 6 of his reply that he has now passed two additional subjects as per requirements of law and (this reply was submitted by the respondent No,1 on 13-1-2009. 14. 15. The respondent No,2 of the Election Petition No,142 of 2008 was proceeded ex parte vide order dated 19-11-2008 and she elected to move C.No,322 of 2009 for setting aside of the order dated 19- 11-2008 which was accordingly set aside vide order dated 18-2-2009 subject to payment of cost of 25000/,,the cost was not paid accordingly the order dated 19-11-2008 was restored vide order dated 11-6-2010.The other responded were proceeded ex parate through separate order passed.. The following issued framed in this matter video 19-3-2011 ISSUES (1) Whether the titled petition is not maintainable under the law? OPR (2)Whether the election petition has been filed with mala fide intention? OPR (3)Whether on the day of election, respondent No,1 lacked academic qualification for contesting elections as envisaged under section 8-A of the conduct of the General Elections Order, 2002 read with section 99(1)(cc) of the Representation of the People Act, 1976? OPP (4)Whether respondent No,1 is liable to be disqualified in view of the provisions of Articles 62, 63 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 12(2)(f), 42A, 76A and 82 of Representation of People Act, 1976? OPP (5)Relief
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' Mr. Azmat Hayat Lodhi, Advocate was appointed as Local Commission to record the evidence of the parties. The evidence has been recorded vide report dated 5-11-2011 submitted by the Local Commission in both the matters. 16. Both the parties produced oral as well as documentary evidence. 17. It is contended by the learned counsel for the petitioners that the respondent -No,1 was a candidate in the year 2002 for contesting the elections for the Constituency NA.163 Sahiwal-IV and his nomination papers were objected to on the ground that he was not a graduate and was not qualified to contest the election of National Assembly. The objection was overruled by the Returning Officer. The controversy ultimately came up before the Election Tribunal which was heard by a learned Division Bench of this Court and through the judgment dated 26-12-2002 announced in E.A.No,384/A of 2002 the respondent No,1 who was impleaded as respondent No,2 in the said election petition was held to be a cheater as his claim as being holder of matriculation declared to be based upon forged and fabricated documents. It is next contended that after being declared so the respondent No,1 for contesting the instant elections maneavoured the Shandat-ul-Almia Sanad from Jamia Talemat-e-Islamia Faisalabad-Rawalpindi and Sanad-tul-Feraag from Madrasa Quran ul Arabia Bahrol Uloom Shikarpur Sindh which sanads were not only fabricated one but were not from the institutions duly recognized by the HEC. It is further contended. By the learned counsel for the petitioners that the respondent No,1 did not even pass the additional elective subjects so as to qualify on the basis of Sanads in question to be holder of a B.A. Degree for contesting election for the year 2008. The learned counsel contends that the respondent No,1 did not appear personally to depose in the matter. The learned counsel thus concluded that the respondent No,1 is not an ameen and an honest person and be declared so and to be not qualified to contest the elections for the year 2008 and his election be thus declared as void. 18. The learned counsel for the respondent No,1 as well as of the respondent No,2 have vehemently opposed the arguments of the learned counsel for the petitioners by contending that the respondent No,1 holds the Sandas from duly recognized Madrasas which Sanads are equivalent to a B.A. Degree and in this respect the learned counsel for the respondent No,1 referred to the Exh.RW1/1 a certificate of Shah Abdul Latif Bhittai University declaring the Sanad-ul-Feraag issued by Madrasa Quran-ul-Arabia to be equivalent to B.A. Pass Part-II. The learned counsel also contended that RW1/2 is a duly issued Sanad from Madrasa of Shikarpur Sindh. The learned counsel for the respondent No,1 further contends that Sanad of Shandat-ul-Almia has been proved by the respondent No,1 in the evidence as RW3/2 issued by Rawalpindi Branch of the Jamia Talemaat-e-Islamia and also by the production of documents RW3/1, RW3/3 and RW3/5. The learned counsel for the respondent No,1 contended that the respondent No,1 is duly qualified and eligible on the basis of Sanads to be a B.A. Degree-holder and the election petitions have been instituted out of mala fides by the election petitioners on account of political rivalry. It is further argued that the reference to previous judgment pronounced in the Election Appeal No,384 of 2002 is irrelevant for the purpose of the instant elections. The learned counsel for the respondent No,1 contended that the election petitions be dismissed. 19. Arguments heard record perused. 20. My findings on the issues framed in the case are a follows:--- 21. Issues Nos.1 and 2. No arguments have been addressed by the learned counsel for the respondents Nos.1 and 2 on legal Issues Nos.1 and 2 therefore these issues are decided in the negative. 22. Issues Nos.3 and 4 are decided jointly as they are interconnected. The respondent No,1 Malik Iqbal Ahmad Langrial has been proved to have submitted his nomination papers to contest the elections for National Assembly Seat N.A.163- Sahiwal-IV in the year 2002. He therein claimed to be holder of a B.A. Educational certificate. He also produced his matriculation, F.A. Certificates before
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the Returning. Officer to substantiate his educational qualifications. The authenticity of the educational certificates of the respondents No,1 was assailed on the ground that all the three documents claimed and produced by the respondent No,1 before the Returning Officer were forged and fabricated. The controversy of his educational documents came up for hearing through an Election Appeal No,384/A of 2002 before a Division Bench of this Court. The learned Division Bench obtained reports from BISE, Lahore and Punjab University about the documents claimed by the respondent No,1 who was arrayed as respondent No,2 in the Election Appeal No,384 of 2002. The following paragraph No,3 of the judgment dated 26-12-2002 passed by the learned Division Bench which is produced as Exh.PW3/E in the instant matter is relevant and is reproduced: "3. We directed respondent No,-5 Board of Intermediate and Secondary Education, Lahore and respondent No,6-Punjab University for verification of the above-said certificates. In their respective reports, they have submitted that all the three documents are forged and fabricated. The Controller of Examination, University of the Punjab stated that the photograph pasted on the roll number slip is different from the photograph pasted on the admission form, meaning thereby that an impersonator appeared in the examination in place of the actual candidate, B.A. Result of respondent No,2 under Roll No,74683 is doubtful for which inquiry is already in process and will be finalized shortly." In paragraph No,10 of the judgment dated 26-10-2002 the facts of the said case were discussed in detail by the learned Division Bench in the following manner:--- "10. The facts of the aforesaid case were slightly different from the case in hand. Respondent No,2 claimed that he passed matriculation examination from Board of Intermediate and Secondary Education, Lahore in the year 1959 under Roll No,42168 and his date of birth recorded therein is 5- 4-1942. He passed his F.A. Examination in the year 1962 under Roll No,32847 from the same Board, whereas he appeared under Roll No,074683 in B.A. Examination and was intimated the result through result intimation card attached as Annexure 'C' with this appeal. Report of the Board of Intermediate and Secondary Education reads as under:- "It is submitted that as per office record the respondent No,2, namely, Malik lqbal Ahmad son of Fateh Sher, date of birth 5-4-1942 did not appear in the Secondary School Examination 1959 against roll number 42168 and this office did not issue the Secondary School Certificate appended with the petition as Annexure 'A'. The particulars of the candidate who appeared in the said examination against roll number 42168 are as under:--- ' Name Iqbal Hussain Tabish ' Father's name Fazal Hussain ' Date of birth 4-6-1938 ' Copy of the admission form and result Gazette for Secondary School Examination 1959 is enclosed as Annexures "R" and "R/1 ". ' As far as Intermediate Examination is concerned, it is submitted that the office of the answering respondent did not allot roll number 32847 to any candidate in the Intermediate (Annual) Examination 1962. Therefore, the Intermediate Certificate appended with the petition as Annexure- B is fake and bogus." ' Similarly University of the Punjab has reported that the photograph pasted at roll number slip is different from ,the photograph pasted at the admission form, meaning thereby that an impersonator appeared in examination in place of the actual candidate. In paragraph 3, it is stated "Apropos above B.A. Result of Mr. Iqbal Ahmad son of Fataih Sher, Roll No,74683 is doubtful for which inquiry is already in process and will be finalized shortly". Reports of respondents No,5 and 6 clearly show that the appellant has neither passed matriculation examination nor F.A. The result intimation card attached as Annexure 'C' with this appeal and produced before the Returning Officer is a fake document. Respondent No,2 himself produced Annexures A, B, and C
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attached with this appeal before the Returning Officer, who instead of holding a summary inquiry from the concerned authorities accepted his nomination papers in an illegal manner. The requisite inquiry was necessary to find out the genuineness of the educational qualification by inquiry from the Board of Intermediate and Secondary Education and University of the Punjab. In the light of reports submitted by respondents No,5 and 6, we are absolutely clear that respondent No,2 is not a graduate and has produced fake educational documents to pose himself as a graduate to overcome the disqualification provided under section 99(1) (cc) of the Representation of People Act, 1976." ' The learned Division Bench of this Court acting as an Election Tribunal further concluded in paragraphs No,11 and 12 as follows:- 11. date of birth of respondent No,2 given in Annexure 'A' is different from the date of birth which he has mentioned in the nomination papers. The notification of the Board of Intermediate and Secondary Education dated 16-8-1963 pertaining to Intermediate examination 1962 clearly indicates that the last roll number for the said year was 31415, whereas he claimed that he was issued roll number No,32847. No roll number after 31415 has ever been issued. This appears to be a forged document on the face of it. Yet there is another factor to doubt the authenticity of these documents. Petitioner passed F.A. Examination in the year 1962 and appeared in B.A. Examination after forty years in the year 2002. Record of the Board of Intermediate and Secondary Education and University of the Punjab clearly belie his stand regarding his educational qualification. 12. We have seen the original record of University of the Punjab. The photographs pasted on the admission form and roll number slip are different. Apparently, respondent No,2 procured the result intimation card through unlawful means." 24. This judgment Exh.PW3 passed in the…
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