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Petitioner: Syed ABDUL LATIF SHAH VS Respondent: ALI MUHAMMAD KHAN and others
Court Name: Election Tribunal Judge(s): Ghulam Rabbani Title: Syed ABDUL LATIF SHAH vs ALI MUHAMMAD KHAN and others Case No.: Petition No.131 of 2002 Date of Judgment:2003-08-25 Reported As: 2004 MLD 36 Result: Petition dismissed
JUDGMENT
JUDGMENT ' Petitions has challenged the election of respondent No.1 from Constituency PS-6, Ghotki-II and has sought declaration that the same be declared void. 2. Precisely, the case of the petitioner is that on the Nominationday, respondent No.I was not a graduate possessing Bachelor Degree hence he was not qualified to be elected as Member of Assembly as prescribed under Article 8-A of the Conduct of General Elections Order, 2002 (hereafter to be called "Order 2002") read with section 99(1)(cc) of Representation of the People Act, 1976 (hereinafter to be called "the Act"). Respondent No.1 is alleged to be guilty of corrupt practice (1) by making false declaration in respect of his educational qualification in his Nomination Form; and (2) by submitting before Returning Officer during the course of scrutiny a false affidavit and false certificates/documents in respect of his educational qualification. It is alleged that ReturningOfficer with mala fide placed reliance on such documents and accepted Nomination Form of respondent No.1 illegally and unlawfully by his order dated 2-9-2002, which was maintained by Appellate Tribunal on appeal filed by petitioner. 3. Notices of above petition were served on respondents. Except respondent No.1, who contested the petition, other respondents failed to appear and were declared ex parte and matter proceeded against them accordingly. 4. Respondent No.1 filed his written statement wherein he denied allegations of petitioner and stated that he was a graduate as was manifest from the documents made available before the Returning Officer. According to him Nomination Paper submitted by him before Returning Officer clearly showed his educational qualification as B.A., which fact was also stated by him in his affidavit filed with Nomination Paper. Other documents including certificates issued by Assistant
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Controller/Controller, Allama Iqbal Open University, Islamabad, and verification report sent by them to Returning Officer on latters' directives also bore testimony that he was a graduate. 5. On the pleadings following issues were framed on 28-4-2003, by consent of parties:-- (1) Whether the respondent No.1, was not graduate at the time of filing the Nomination Paper i.e. On 24-8-2002? (2) What is the effect of not filing the documents alongwith the Nomination Paper, but before the scrutiny? (3) Whether the petition is not maintainable? (4) What should the order be? 6. Subsequently, by consent of parties, above mentioned Issue No.1 was amended as follows:-- ' Whether or not the respondent No.1 was graduate at the time of filing of Nomination Paper on 24- 8-2002? 7. It will be significant to note that petitioner had neither filed anyaffidavit of witness nor he had filed with his petition, a list of official witnesses as is required by the Procedure for Trial of Election Petitions laid down in Notification No.F.1(7)85-Cord issued in pursuance of powers conferred under section 62 of "the Act". He had, however, during course of proceedings, filed an application under section 151, C.P.C. To call for file of Returning Officer or, in the alternate, it was prayed, that the documents filed by respondent No.1 with hisNomination Paper be called for. This application was, later, not pressed by him. 8. Initially, side of petitioner was closed on 19-5-2003 as he failed to file his affidavit-in-evidence. However, on his application moved subsequently, the said order was recalled by consent of parties and he was allowed to produce the documents which he had filed with this Election Petition. Accordingly, he examined himself at Exh.1 and produced Nomination Paper (alongwith annexures inclusive of certificate issued by Assistant Regional Director, Allama lqbal Open University, sub- Region, Sukkur and others (10 pages) as Exh.2, Notification No.F.2(3)/02-Cord dated 20th October, 2002 published in the Gazettee of Pakistan Extraordinary Part-III issued by Joint Secretary (Elections) as Exh.3, certified true copy of the objections of petitioner against the nomination of respondent No.1 as Exh.4, certified true copy of objections against Nomination of respondent No.1 by an advocate/representative at Exh.5, certified true copy of application dated 28-8-2002 filed by respondent No.1 with orders thereon as Exh.6, certificate (showing 23-8-2002 as date of declaration of result of examination) as Exh.7, certified true copy of reply filed by the respondent No.1 as Exh.8, Letter bearing No.F.2-1/00 conductiums/370 BA dated 20-8-2002 as Exh.9, Transcript issued by the Controller of Examination of Allama Iqbal Open University as Exh.10, affidavit of respondent No.1 dated 24-8-2002 as Exh.11, certified true copy of statement dated 31-8-2002 with objections thereon as Exh.12, order dated 31-8-2002 of Returning Officer, Ghotki-II as Exh.13, Letter of Returning Officer (NA-201 and PS-6 and 8 Ghotki) dated 31-8-2002 as Exh.14, Report of verification of certificate/degree of B.A. Of Allama Iqbal Open University dated 2-9-2002 as Exh.15, certified true copy of order dated 2-9-2002 of Returning Officer of PS-6 as Exh.16 and order dated 10-9-2002 passed by Appellate Tribunal as Exh.17. He closed his side vide statement Exh.18. Respondent did not produce any evidence. Learned counsel appearing on his behalf, as will appear from following para. Stated that he, too, relied on the above documents. He closed his side vide statement Exh.19. 9. I have heard given serious thought to the arguments of Mr. Abdul Latif Channa, learned counsel for petitioner. Mr. Rasheed A. Akhund, learned counsel for respondent No.1 and Mr. Ahmed Pirzada, Additional Advocate-General. I have also gone. Through the case-law referred to by learned counsel for both the parties. 10. In the first instance, it may be stated that during the course of his submissions Mr. Channa, learned counsel for petitioner, stated that the copies produced by petitioner in his evidence were of those documents as were available on record of Returning Officer at the timeof scrutiny of
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Nomination Paper of respondent No.1 and that the same, without aid of any other material, would be sufficient to establish the case of petitioner. Of these documents, according to him, those at Exh. I (alongwith its annexures), 6, 7, 9, 10 and 11 are copies of documents which were produced by respondent No.1 himself before the Returning Officer PS-6, Ghotki-II and the document Exh.15 is the copy of report of verification of certificate/degree of respondent No.1 allegedly received by the Returning Officer from Allama lqbal Open University Authorities. 11. Mr. Channa, then, argued that respondent No.I was not a graduate on Nomination day viz. 24-8- 2002; he had presented his Nomination Paper without filing an attested copy of degree and had made false declaration in respect of his educational qualification by showing B.A. In his Nomination Paper. Mr. Channa, then, expressed that respondent No.1 had, however, during the course of scrutiny of his Nomination Paper managed to file several spurious documents which included a certificate (Exh.7), letter dated 31-8-2002 (Exh.9), Transcript (Exh.10), an affidavit (Exh.11) in respect of his educational qualification so also a fake verification report dated 2-9-2002 (Exh.15) was managed to be placed before the Returning Officer who had earlier passed orders in transgression of his powers to call such report. He contended that the late production of aforementioned documents reflected that the same were subsequently managed. He, next, argued that even otherwise the aforementioned documents did not in any way establish that respondent No.1 was a graduate possessing a bachelor degree in any discipline which was a condition precedent to qualify a citizen to be elected as member of Provincial Assembly as required by Article 8-A of the Order, 2002 read with section 99(1)(cc) of the Act. In this behalf, he referred to the meaning of words "Possess" and "Degree" as defined in Black's Law Dictionary, VIth Edition. He also referred to case of Pachiripalli Satyanarayana (Accused petitioner) (AIR 1953 Madras 534 - Vol. 40; C.N. 2001). Mr. Channa, also attacked proceedings of scrutiny of Nomination Paper of respondent No.1 (Exh.1) conducted by learned Returning Officer, as a consequence whereof the Nomination Paper of respondent No.1 was accepted holding him qualified on the basis of above document. Mr. Channa, in his arguments, stated that, however, the matter be decided finally and conclusively on the abovementioned amended Issue No. 1 . He did not press other issues. He placed reliance on the case of Saifullah v. Selection Committee Admissions through Chairman Public Service Commission, Ramsay Road Quetta and 4 others (2001 YLR 2014) and the case of Intizar Hussain v. Akhtar Hussain and 4 others (2003 SCMR 204). 12. On the other hand Mr. Akhund, learned counsel for respondent No.1, while controverting above submissions, argued that respondentNo.1 passed B.A. Examination on 23-8-2002 and was a graduate on Nomination day as required by law hence declaration to that effect was rightly made by him in his Nomination Paper and in his affidavit which was filed with his said paper. He submitted that respondent No.1 had filed with his Nomination Paper receipt of payment of fees for obtaining certificate of graduation and in his affidavit explained that result of his examination was declared only a day before the Nomination day and that he had applied for obtaining certificate. Then, according to Mr. Akhund, during the course of scrutiny he had filed other relevant and genuine documents in respect of his educational qualification, which furnished basis for acceptance of his Nomination Paper. He urged that there was also no bar on production of document during the course of scrutiny, specially when, in the given circumstances, it was not possible to produce the same on the Nomination day. In support, he placed reliance on the case of Amirzada Khan v. Chief Election Commissioner and 2 others (PLD 1974 SC 236). Mr. Akhund, then, referred to meanings of words "Bachelor", "Graduate", "Degree" as defined in Concise Oxford English Dictionary 9th Edition, took aid of Ballintine Law Dictionary, 3rd Edition; as well, and stated that a person on being declared to have passed B.A. Examination is supposed to have acquired the degree and could claim a title thereto. Lastly Mr. Akhund argued that in this election though the proceedings of scrutiny of Nomination Paper of respondent No. I could not be challenged; yet, he
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expressed that, for the sake of arguments it could be mentioned that learned Returning Officer enjoyed ample powers to hold a summary enquiry as deemed fit for the purpose of scrutiny and could require any agency or authority to produce any document or record. He referred to section 14 of the Act in support of his argument. 13. Mr. Ahmed Pirzada, learned Additional Advocate-General adopted the arguments of Mr. Akhund and stated that the election petition be dismissed being devoid of any merit. 14. Before any further discussion, it will be appropriate to reproduce below the relevant provisions of "the Act" and "the Order 2002". REPRESENTATION OF THE PEOPLE ACT 1976 14. Security.---(1) The candidates, their election agents, /the proposer and seconders and one other person authorised in this behalf by each candidate' land an elector who has filed an objection to the nomination of a candidate,) may attend the scrutiny of nomination papers, and the Returning Officer shall give them reasonable opportunity for examining all nomination papers delivered to him under section 12: ' [Provided that an elector who has filed an objection to the nomination of a candidate shall only attend the scrutiny of the nomination paper of that candidate.] (2) .................................. (3) The Returning Officer may, either of his own motion or upon any objection, [either by an elector or] [by any person referred in subsection (1),] conduct such summary enquiry as he may think fit and may reject nomination paper if he is satisfied that--- (a) the candidate is not qualified to be elected as a member; (b) the proposer or the seconder is not qualified to subscribe to the nomination paper. (c) any provisions of section 12 or section 13 has not been complied with '[or submits any false or incorrect declaration or statement in any material particular]; or (d) the signature of the purposer or the seconder is not genuine: Provided that-- (e) the Returning Officer may, for the purpose of scrutiny,require any agency or authority to produce any document or record; (i) the Returning Officer shall not reject a nomination paper on the ground of any defect which is not of a substantial nature and may allow any such defect to be remedied forthwith, including an error in regard to the name, serial number in the electoral roll or other particulars of the candidate or his proposer or seconder so as to bring them in conformity with the corresponding entries in the electoral roll; and (ii) (3A).................................. (4) ........................... (5) ..................................... (5A)................................................. (6) ..................................... (7) ..................................... 52: Election petition.---No election shall be called in question except by an election petition made by a candidate for that election (hereinafter in this Chapter referred to as the petitioner). (2) An election petition shall be presented to the Commissioner within [forty-five days] of the publication in the official Gazette of the name of the returned candidate and shall be accompanied by a receipt showing that the petitioner has deposited at any branch of the National Bank of Pakistan or at a Government Treasury or sub-Treasury in favour of the Commissioner, under the prescribed head of account, as security for the costs of the petition, a sum of one thousand rupees. 78.Corrupt practice.---A person is guilty of corrupt practice if he-
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(1) .................................................... (2) ...................................................... (3) makes or publishes a false statement [or submits false or incorrect declaration in any particular material] (a) (b) (c) .......................... (d) in respect of his educational qualifications, assets and liabilities, or any liability with regard to payment of loans or adherence to party affiliation specified in subsection (2) of section 12] (4) ....................................... (5) (6) 82. Penalty for corrupt practice.---Any person guilty of corrupt practice shall be punishable with imprisonment for term which may extend to three years, or with fine which may extend to five thousand rupees, or with both. 99. Qualifications and disqualifications.---(1) A person shall not be qualified to be elected or chosen as a member of an Assembly unless--- (a) --------------- (b) ------------ (c) ........................................... (cc) he is at least a graduate, possesses a bachelor's degree in any discipline or any degree recognized as equivalent thereto by the University Grants Commission under the University Grants CommisSion Act, 1974 (XXIII of 1974), or any other law for the time being in force; CONDUCT OF GENERAL ELECTIONS ORDER, 2002 (8A. Educational qualification for member of Majlis-e-Shoora Parliament) and a Provincial Assembly.-- ' Notwithstanding anything contained in the Constitution of the Islamic Republic of Pakistan, 1973, the Senate (Election) Act, 1975 (LI of 1975), the Representation of the People Act, 1976 (LXXXV of 1976), or any other law for the time being in force, a person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) or a Provincial Assembly unless he is at least a graduate possessing a bachelor degree in any disciplineor any degree recognized as equivalent by the University Grants Commission under the University Grants Commission Act. 1974 (XXIII of 1974)] (or any other law for the time being in force.' (Underlining is by me.) l5. As is mentioned in the foregoing paras, Mr. Channa, in his arguments, stated that except Issue No.1, he did not press other issues. In this regard, it will be pertinent to note that the issue of non- maintainability of the election petition was not proposed by petitioner, but by learned counsel for respondent No.1, on which, Mr. Channa, stated his consent in writing. In this situation of Mr. Channa not pressing this issue is of no consequence. 16. A question of maintainability of a lis is. Of paramount importance. It touches the very root of a matter and needs to be addressed first. Learned counsel for respondent No.1 who had raised the above issue, however, did not state as to how this election petition was not maintainable. On the other hand, the legal position is very clear. A candidate for an Election is competent to call in question that Election by way of an election petition within terms of section 52 of the Act, reproduced above. Besides, no violation of provision of section 54 or 55 of the Act is alleged. I also do not find that the said provision has not been violated. Accordingly, in my view, this election petition is maintainable.
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17. Coming to the amended Issue No.1, it may be stated that in the first instance, it will be pertinent to refer to the documents in respect ofeducational qualification of respondent No.1, which have been produced by petitioner in his evidence. According to learned counsel for petitioner, as stated above, these were produced by respondent No.1_ himself before learned Returning Officer during the course of scrutiny. Learned counsel for respondent No.1 also relied on the same documents, did not lead any evidence and closed his side. On close scrutiny of these documents and the report of verification got condutted by learned Returning Officer, what I have found is as follows. 18. Document Exh.7 is a certificate issued by Assistant Controller of Examination, Allama Iqbal Open University, Islamabad: It reveals that respondent No. 1. With Roll No.1-14991211, Registration No.00-SG1- 0153 had passed the courses mentioned therein of B.A. (General Group) securing 64% Marks and was placed in Grade 'B' and the date of declaration of result was 23-8-2002 i.e: a day before the Nomination day viz 24-8-2002. This certificate bears a note that respondent No.I was involved in an unfair means case of impersonation for courses of last semester and in case the allegations were proved the above result would stand cancelled. Then, the document Exh.9 is a photocopy of letter bearing No.F.2 1/00/Conduct/UDIC/370/BA dated 30-8-2002 of Secretary Unfairmeans Committee informing respondent No.1 that he was let off from the charge (use of unfairmeans). The letter is endorsed to the Deputy Controller of Examinations with a note thereunder, purportedly in the nature an advice, for declaration of result in the light of above decision. Below the above endorsement and the note in the said letter, there is no signature of either Secretary Unfairmeans Committee or any other officer of Allama Iqbal Open University. Mr. Channa, learned counsel for petitioner heavily relied on the said endorsement. He argued that the note thereunder reflected that upto the date of issue of above letter i.e. Upto 30-8-2002 the result of respondent No.1 showing him to have passed Bachelor of Arts Examination was certainly not declared. He added that from said letter (Exh.9) it also proved that certificate (Exh.7) showing respondent No.1 to have passed Bachelor of Arts Examination and result of that examination stood declared on 23-8-2002 was a false document.. After going through both these documents put into juxta position, I do not find myself in agreement with Mr. Channa, in his assumptidn, for the simple reasons that it is the same certificate (Exh.7) which furnishes a reason for and gives a cause to the issuance of letter (Exh.9). It is that certificate which says that a case of impersonation against respondent No.1 was under consideration and in case the allegation was proved his result would stand cancelled. Therefore, as a natural corollary, the authorities seized with the matter holding an enquiry were bound to decide the case and declare the result of enquiry. In this case. It was Unfairmeans Committee who decided the case and communicated to respondent No.1 its decision on 20-8-2002 andthere was nothing wrong in it; so also there was no wrong in advising the Deputy Controller of Examination to declare the result in the light of decision of Unfairmeans Committee to make it known to all concerned that respondent stood absolved of charge. Obviously, the result of examination and the result of enquiry are two distinct propositions. Be that as it may, there is nothing on record to indicate that result of relevant examination of respondent No.1 was withheld at any time and was made dependent to be declared as a consequence of decision of Unfairmeans Committee. Besides, looking at the said document (Exh.9), in the context of allegation of learned counsel, it may be stated that, had it been the intention to forge the document, it could have been prepared without inserting unsigned endorsement and the note thereunder which is couched in few words less than a complete line. Thus, the presence of the endorsement rather evidences that the said document is in conformity with certificate (Exh.7) and not considered as an ingenuine document, moreso, when it fits in the chain of events. Thus, I am clear in my mind that the endorsement with relevant note thereunder in letter (Exh.9) does not negate the fact of declaration of result of respondent No.1 on23-8-2002.
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19. The fact that the respondent No.1 passed the examination on 23-8-2002; as well, gets support from an other document viz. The Transcript (Exh.10) issued by Controller of Examination of Allama Iqbal Open University, which on its top bears a Serial NO.34225 of the relevant book and reflects in clear terms that respondent No.1, with Registration, No.00-SGI-0163 and Roll No.1-4991211 completed all the requirements of Bachelor of Arts (General Group) on 23-8-2002 and secured 64% marks and his cumulative Grade was 'B'. The details of marks and grade shown in the said Transcript are also the same as are shown in certificate Exh.7). Mr. Channa, in his arguments, termed the document (Exh.10) to be spurious, but, did not say as to on what basis he made that allegation. 20. Perusal of record shows further that learned Returning Officer, PS-6, Ghotki-II, had written a letter bearing No.ELEC/05/2002 dated 31-8-2002 (Exh.14) whereby, he had required the Controller of Examination, Allama lqbal Open University, Islamabad to verify through Fax the authenticity of above mentioned certificate (Exh.7) and the Transcript (Exh.10) produced before him by respondent No.1. Accordingly the same were verified and the Assistant Registrar (Examination) of said University vide his letter No.26103 dated 2-9-2002 (Exh.15), through Fax, intimated learned Returning Officer that Provisional Certificates issued to respondent No.1 were verified and found correct. Mr. Channa, during the course of his arguments, expressed his doubts about the authenticity of said report. He stated that at the foot of said report the date appearing for sending thatreport through Fax machine is 11-12-2001 which relates to the Arne much before the'date i.e. 31- 8-2002 on which learned Returning Officer asked for verifications of documents. I have examined photocopy of the said report coming from possession of petitioner and produced as Exh.15 and find that the date so appearing on these documents itself is doubtful,, firstly, for the reason that it is not printed in an up-right manner, there, are some black marks around the said date and the other material shown against it which raises a question whether such date could be the one on which it was sent to learned Returning Officer in view of what is discussed next to follow. The date so printed in .This document is of remote past when even Article 8-A of the Order and c4ause (cc) of subsection (1)of section 99 of the Act stipulating graduation as one of conditions were not on Statute Book and were inserted by -way of amendment on 24-6-2002 and 31-7-2002 respectively (Election Laws-General Election 2002 '(Volume 1) published by Election Commission of Pakistan referred). Even, it cannot be said with certainty, in such situation, that at that time learned Returning Officer who called for the requisite report stood appointed. The letter containing the said report is addressed…
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