Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NAQEEBULLAH KHAN VS Respondent: MALIK IMRAN KHAN and 6 others
Court Name: Peshawar High Court Judge(s): Muhammad Qaim Jan Khan, Tariq Pervez Title: NAQEEBULLAH KHAN vs MALIK IMRAN KHAN and 6 others Case No.: W.P. No, 105 of 2003 with C.M. Nos, 335, 336 & 412 of 2005 Date of Judgment:2005-10-18 Reported As: PLJ 2006 Peshawar 36 Result: Petition allowed
JUDGMENT
JUDGMENT Tariq Parvez Khan, C.J.--Country wide general election for National and Provincial Assemblies were held on 10th October 2002. Respondent No, 1 (hereinafter referred to as respondent) was one of the contesting candidates for the Constituency PF-75 Lakki-II NWFP. 2. Result of election was notified wherein respondent on 20.10.2002 was declared as returned candidate. 3. During the subsistence of his holding to public office as Member of the Provincial Assembly of the Province, a complaint was made to the Anti-Corruption Establishment at Karachi cognizance whereof was taken by its Deputy Director. The complaint was that the respondent who claims himself to be a graduate in B-Com from University of Karachi is holding fake/forged degree. Controller of Examination of University of Karachi on 31.5.2003 replied to Deputy Director Anti- Corruption that the degree of the respondent was forged. A certificate, therefore, was issued dated 2.6.2003 by the Deputy Director Anti-Corruption. 4. Respondent having learnt about the proceedings initiated against him on the basis of complaint at Karachi, filed a constitutional petition, CP No, D-1299 of 2003 before Sindh High Court, inter alia, on the ground that action of Deputy Directly Anti-Corruption and that of the Registrar University of Karachi including Controller of Examination whereby degree of the petitioner therein was held to be forged, such proceedings be annulled on application of maxim audi-alteram pattern. Constitutional petition was allowed on 26.1.2005 with direction that the University of Karachi shall hold proper inquiry by associating the petitioner therein i,e, the respondent. Respondent had also filed a civil suit bearing No, 432/04 before Sindh High Court in original
---
## Page 2
jurisdiction but because of acceptance of his Constitutional petition the civil suit was withdrawn on 28.1.2005. 5. The present writ petition was filed in this Court on 9.6.2003 i,e, week after the degree of the respondent in the first instance was held to be forged. Respondents were asked to file their comments. 6. It appears that because of acceptance of Constitutional petition by learned Bench of Sindh High Court the present respondent requested this Court for hearing of this petition as no order against him was left in field. His such application was allowed. 7. It appears that University authorities conducted inquiry as directed by the Hon'ble Bench of the Sindh High Court and it was on 24.2.2005 that once again the conclusion arrived in inquiry that the degree held by respondent was forged. 8. Respondent again filed a civil suit on 5.3.2005 before the Sindh High Court which took cognizance of the case on the original side. respondents in the suit were asked to file their written statement where their stance was that suit filed by plaintiff-respondent was not maintainable in view of Sections 51 and 52 of the University of Karachi Act. After the parties were heard on the preliminary objections, the learned trial Judge on 12.4.2005 dismissed the suit and non-suited the plaintiff- respondent. Against the order of learned Single Judge on the original side, respondent filed Appeal No, 86/05 which has been now decided on 24.5.2005. 9. Petitioner namely, Naqibullah, claims himself to be a registered voter of Constituency and his name is enrolled at S. No, 58 on the Electoral Roll of electoral area Ghazni Khel. He has filed this petition under Article 1991)(b)(ii) of the Constitution of Islamic Republic of Pakistan. 10. The writ petition is in form of quo-warranto and it has challenged the authority of respondent to hold public office as Member of Provincial Assembly of the Province. 11. The case was heard at sufficient length on different dates. 12. Learned counsel for the respondent has raised preliminary questions and objections, was heard at length including on merits. 13.His contention is that the writ petition filed, in the present form, is not maintainable as it not only seeks relief in nature of quo-warranto but also mandamus and writ of certiorari. His submission is that this Court in Constitutional jurisdiction ordinary extends relief which is specifically sought and not the fake one. 14. He further argued that an inquiry under Section 11 of the University of Karachi Act is pending against the respondent regarding genuineness or otherwise of is B-Com degree which is not finally decided, therefore, the petition would be pre-mature and not maintainable. He submits that even if it is held that degree held by the petitioner is found to be fake and bogus this finding is post-dated to the date of filing of nomination papers on which date respondent was holding a degree not declared bogus. His contention is that if on the date of nomination and election including declaration as member of NWFP Assembly in the official gazette, the degree of the respondent was valid and its subsequent cancellation would not invalidate either the nomination or its candidature or his notification as returned candidate. He further argued that in view of bar under Article 225 of the Constitution of Islamic Republic of Pakistan election disputes can only be taken and decided by the Election Tribunal constituted under the Representation of People Act 1976 and no Court other than the Election Tribunal shall have the jurisdiction. Reliance is placed on PLD 1989 SC 26 and 396 including PLD 1994 Karachi 1. It was next argued that the petitioner before this Court is actually planted one but By a candidate who lost election against the respondent. That petitioner has got no personal interest in prosecution of the writ petition but he is being used as a tool, therefore, he is not entitled to any discretionary relief under the Constitutional jurisdiction. His argument is that issuance of writ of quo-warranto is a discretionary relief vested with the High Court and discretion shall not be
---
## Page 3
exercised in favour of the petitioner unless he shows that he has some personal interest. Reliance is placed on PLD 1963 SC 203. 15.It is also argued that in a situation like the present one and even if for the sake of arguments it is contended that now the degree of the respondent is held to be false and fake, the matter can only be agitated under Article 63(2) of the Constitution of the Islamic Republic of Pakistan but at the floor of the Assembly and not before the judicial forum. He further argued that since the petitioner has a certificate issued by the Principal of College where he has studied, has got the Detailed Marks Certificate issued by competent authority followed by issuance of a valid degree and if any finding in given that such documents were bogus or false, is a p ire question of fact which cannot be gone into in Constitutional jurisdiction. He relies on PLD 1968 Lahore 361, PLD 2001 SC 415, 1989 SCMR 918, 1983 CMR 732 and 1982 SCMR 497. He also argued that any finding recorded by a learned Judge of the Sindh High Court where he has held degree of the respondents as fake and bogus would not be relevant because the suit was ult mately dismissed for lack of jurisdiction because of Sections 51 and 52 if the University of Karachi Act. 16.Learned counsel for the petitioner had earlier submitted that if one should go by tracing history of writ of quo-warranto, it was the prerogative of the State or the sovereign to ask for under what legal justification or authority a person is holding an office of command but them with passage of time and with revolution of the civilized societies it has attained the present shape i,e, an information to the Court of law with regard to a person holding' a public office the Court to ask under which authority he is landing that office and to holds that he has usurped an office. Learned counsel has relied on AIR 1965 SC 491 where it was ruled that proceedings in the nature of writ of quo-warranto are tend to protect the public from usurpers of public office. It was further ruled that before a citizen can claim a writ of quo-warranto it shall first satisfy the Court that the office in question is a public office and secondly that same is held by usurper without legal authority. Learned counsel argued that petitioner being a voter in the Constituency of which the office of Member of Provincial Assembly is occupied by respondent and he, being Secretary General of a political party at district level and even otherwise as citizen of Pakistan, has the right to file writ in the nature of quo-warranto. Case of G.D. Karkare v. T.L. Shevde (AIR 1952 Nagpur 330) was cited where the appointment of Advocate General was challenged on the ground of overage and it was ruled by Nagpur High Court that any person could move the Court without alleging the violation of any of his specific rights. In case reported in AIR 1970 Rajistan 184 a registered graduate of the University challenged the election of the Member of Syndicate though he was not a voter nor a candidate to the election. 17.It was argued that Article 225 of the Constitution of Islamic republic of Pakistan would not Constitute a bar against the present petitioner because in the present petition he has questioned the pre-election disqualification of the respondent. The matter although has raised after the election but is not a dispute relating to or arising in connection with election but is dispute relating to the right of the person from being a Member of the Provincial Assembly. It is submitted that the proceedings are initiated against the respondent in form of an information invoke in public interest. It seeks to determine the title to the office held by respondent and not the validity of his election. His submission is that respondent was suffering from disqualification as he was not a graduate as required under the laws and since his such qualification surfaced at a later stage when the election process was all over and the petitioner being not a candidate as defined under the Election Law has no remedy to question the holding of office by the respondent but through present proceedings. Reliance is placed on PLD 1970 SC 98, PLD 1975 Peshawar 146, PLD 1982 Karachi 604, PLD 1962 Lahore 230 and 1994 SCMR 1299. 18.Learned counsel at this stage has referred to the Constitutional provisions regarding election
---
## Page 4
matters. He referred to Constitution of 1956 where under Part-VIII of the said Constitution dealt with Elections and its Article 146 reads as under: "146. Election Tribunal. --No election to the National Assembly or a Provincial Assembly shall be called in question except by an election petition presented to such authority and in such manner as may be provided by Act of Parliament." The power of the High Court to issue certain writs contained in Article 170 of the Constitution which read as under: "170. Power of High Courts to issue certain writs, etc.-- Notwithstanding anything contained in Article 22, each High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus; prohibition, quo warranto and certiorari, for the enforcement of any of the rights conferred by Para II and for any other purpose." Similarly he referred to the Constitutional provisions relating to election disputes and jurisdiction of the High Court. Relevant Articles of Constitution of 1962 to the extent of relevancy in the present matter are reproduced as under:- "98. Jurisdiction of High Courts.--(1) A High Court shall have such jurisdiction as is conferred on it by this Constitution or by law. (2) Subject to this Constitution, a High Court of a Province may, if it is satisfied that no other adequate remedy is provided' by law. (a) .................................................. (i) ................................................... (if) .................................................. (b)on the application of any person, make an order.-- (i)..................................................... (ii)requiring a person in the Province holding or purporting to hold a public office to show under what authority of law he claims to hold that office." 171. Disputed elections.--(1) Subject to clause (2) of this Article, provision may be made by law-- (a) for disputes arising in connection with the counting of votes at an election or referendum required to be held under this Constitution to be finally determined by the Commissioner or an Election Commission; and (b) for other disputes arising in connection with such an election or referendum to be finally determined by a Tribunal established for that purpose. and no dispute arising in connection with such an election or referendum shall be decided otherwise than under such a law, and the validity of such an election or referendum shall not be called in question except in accordance with such a law. (2)......................................................... (3)......................................................... He has also referred to the similar provisions as contained in the constitution of the Islamic Republic of Pakistan 1973 which are as under: "199. Jurisdiction of High Court.---(1) Subject to Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a) ......................................................... (i) ......................................................... (ii) ......................................................... (b) on the application of any person, make an order--- (i) ......................................................... (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a
---
## Page 5
public office to show under what authority of law he claims to hold that office." Article 225 '225. Election dispute. No election to a House or a Provincial Assembly shall be called in question except by an election petition presented to such tribunal and in such manner as may be determined by Act of Majlis-e-Shoora (Parliament)." It is maintained that where different articles of three Constitutions were parameteria to each other but still this Court would have the Constitutional jurisdiction to ask a usurper the legal authority under which he would be holding a high office of Member of Provincial Assembly. Distinction is made that under Election Laws only a candidate can file election petition and voter cannot: It is submitted that where the disqualification was inherent at the time of filing of nomination papers or it came to the knowledge of a candidate or any person having interest in the Constituency, mere fact that there is bar under Article 225 of the Constitution and if such bar is allowed to continue in all circumstances, the possibility would be that many law makers sitting in the Parliament though disqualified would be allowed to continue to hold office which cannot be the spirit of a democratic system. 19. Learned counsel submitted that where a disqualification arises during the term of holding public office like a person becoming insane, insolvent, 'ceased to be a citizen of Pakistan or convicted for an offence of moral turpitude he cannot be allowed to hold the public office. Therefore, he has referred to Article 63(2) of the Constitutional of 1973 which caters for disqualification which occurs while holding the office as Member of Majlis-e-Shoora, such disqualification is referred to the Chief Election Commission. His submission is that here the disqualification of respondent has not occurred during the subsistence of holding the office but it has only came to the knowledge of petitioner during such period. His submission is that from the dated respondent filed nomination papers he was disqualified. therefore, even Article 63(2) of the Constitution would be inapplicable to his case. 20.It was argued that petitioner has invoked the jurisdiction of this Court under Article 199(1)(b)(ii) of the Constitution of 1973 and his main prayer is to direct the respondent to show under what authority of law he holds or purports to hold the public office of Member Provincial Assembly. His submission is that any other relief sought in form of mandamus and certiorari is consequential and would follow to relief given in writ of quo warranto. Learned counsel maintained that although there may be no second opinion that writ of quo warranto is discretionary in nature but where the information placed before this Court is in respect of a high office like Member of Parliament or Provincial Assembly it becomes the legal as well as moral duty of this Court to oust the usurper and not to allow him to hold the office. 21.Learned counsel states that on merits the petitioner has got a proved case because number of documents either filed with the petition, filed with comments by respondents 6 and 7 or documents filed with rejoinder have proved a long way that degree held by respondent was fake and was never issued by University of Karachi. 22.He has referred to marks certificate allegedly issued by University of Karachi annexed with the comments of respondent No, 6 and with the comments of respondent No, 8. The marks certificate PR/I and PR/II, the Result Gazette PR/III, certificate dated 31.12.2003 issued by Principal College of Commerce and Economic Karachi PR/IV, Marks certificate PR/I issued by Principal of College itself, Marks certificate PR/II certified copy issued by Controller of Examination University of Karachi, documents PR/IV and PR/V filed with rejoinder. It is argued that in view of above referred documentary evidence which are all documents prepared under the Statute and the Rules, therefore, presumption of correctness is attached therewith and are sufficient proof that respondent though was a student of the College but he has never certified his graduation degree and if issued any certificate/degree was based on tampering
---
## Page 6
done in the official record whereas his Roll number not at all appeared in the Result Gazette which is the primary document nor ire has been recorded as qualified in all subjects in the register maintained and kept in the office of Registrar of the University. 23.It was lastly argued that on the direction of the Division Bench Sindh High Court an inquiry was held in which respondent also participated and it was concluded by inquiry that respondent has obtained he so-called degree which was forged, fake and fictitious. 24.It was, therefore, prayed for issuance of relief as sought against he respondent. 25.An objection was raised by the learned counsel for the respondent that Kashif Ayaz who has allegedly informed the Deputy Director Anti-Corruption Establishment to enquire into the genuineness of the Degree of respondent, is non-existent and is a planted fake name. An application was, therefore, filed by respondent. Such application and contents therein were denied by the learned counsel for the petitioner by filing reply and by taking the stance that address has been wrongly taken by the respondent and they had been searching for Kashif Ayyaz in Block-16 of Gulshan-e-Johar Karachi. In fact it is Gulistan-e-Johar, Karachi. 26.At this stage we do not think that we shall inter into this controversy and whether the man is existent or not but we shall proceed on the basis of submissions made and the case-law cited and shall only discuss merits of the case. 27.Re-hearing of this case was ordered in view of application filed by learned counsel for the respondent on 2nd August, 2005 wherein he intended to file additional documents but earlier to that on 2-7-2005, counsel for the petitioner through application filed report of the High Powered Enquiry Committee where it was concluded that "B-Com. Degree and the Mark sheet in his possession (respondent) are false/fake and the action of the Karachi University in cancelling the fake degree and the Mark sheet is upheld". 28.As we have given in the preceding Paragraph of this judgment that action of the Karachi University wherein B.Com. Degree of Malik Imran Khan respondent was cancelled, he had twice gone to the Honourable Sindh High Court, initially in writ petition then by filing a suit on the original side and during the pendency of such proceedings, this High Powered Enquiry Committee was Constituted on application of the respondent under the orders of the Governor of Sindh. 29. When the case was re-taken for hearing the learned counsel for the parties agreed that the case be decided on the basis of arguments already addressed. 30. The Constitutional jurisdiction of this Court includes issuance of writ in the nature of quo warranto; therefore, we shall first discuss the scope of our Jurisdiction. It was ruled in the "University of Mysore Vs. Govinda Rao (AIR 1965 SC 491) while quoting a passage from Halsbury:- "An information in the nature of a quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined." And observed: the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provision; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the Courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen
---
## Page 7
can claim a writ of quo warranto, he must satisfy the Court, inter alia, that the office in question is a public office and is held by (a) usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not." 31. It was been ruled in number of judgments from Indian jurisdiction including AIR 1952 Nag. 330, AIR 1952 Tr.0 66, AIR 1957 Raj 75, AIR 1961 AP 250 and AIR 1970 Raj, 184 that any person could move the Court without alleging violation of any specific right of the applicant where the application is in respect of public office". It is not disputed nor can be disputed that respondent is holding a public office as he is member of the Provincial Assembly. It is also not denied that the petitioner before us in a registered voter of the constituency which is represented by respondent in his capacity as Member of the. Provincial Assembly. The case law in support proposition that writ can be issued on the application of any person where some interest lies, reliance was placed at:- (i) PLD 1970 Supreme Court-98 (Lt. Col. Farzand Ali & others Vs. Province of West Pakistan). (ii) PLD 1975 P-146 (Khaista Gul vs. Akbar Khan & 7 others). (iii) PLD 1982 K 604 (Syed Arshad Hussain Vs. The Gout. Sindh and 38 others). (iv) PLD 1962 L 231 (Abdul Aziz & others Vs. The State and other) (v) 1994 S.C.M.R. 1299 (Ghulam Mustafa Jatoi vs. Additional District & Sessions Judge/Returning Officer & others). 32. An objection has been raised by the learned counsel for the respondent that in view of Article 225 of the Constitution of Islamic Republic of Pakistan, 1973, there is a bar of jurisdiction of all Courts. An election can only be challenged by filing an election petition before the Election Tribunal. One cannot disagree with the learned counsel for the respondent but that would be when the challenge is made to the election and not where it is made to the qualification of the person holding public office. Otherwise, it is true under the Representation of People Act, 1976; and election petition can only be filed by a candidate and by none else. No doubt that ground of dis-qualification to be disqualified on the date of nomination or has become disqualified while holding office fall within the arena of jurisdiction of the Election Tribunal but for the purpose of filing of election petition by a candidate. A candidate has been defined under the Representation of People Act, 1976;…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.