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Petitioner: Haji NASIR MEHMOOD VS Respondent: Mian IMRAN MASOOD and others
Court Name: Supreme Court of Pakistan Judge(s): Javaid Iqbal, Muhammad Sair Ali, Tariq Pervez Title: Haji NASIR MEHMOOD vs Mian IMRAN MASOOD and others Case No.: Civil Appeal No,47 of 2010 Date of Judgment:2010-08-04 Reported As: PLD 2010 Supreme Court 1089 Result: Appeal Dismissed
JUDGMENT
JUDGMENT ' JAVED IQBAL, J.---This appeal is directed against judgment dated 3-2-2010 whereby Election petition preferred on behalf of Mian Imran Masood (respondent) has been accepted with the direction to the Election Commission of Pakistan to take necessary steps to conduct fresh election in PP-Ill-Gujrat, hence this appeal. 2. Precisely stated the facts of the case are that " Mian Imran Masood petitioner has filed this election petition under section 52 of Representation of the Peoples Act, 1976 against Haji Nasir Mehmood and 11 others alleging therein that he along with the other private respondents had filed their nomination papers to contest the election from PP-III-Gujrat. The degree possessed by respondent No,1 was not lawful being not recognized by the competent authority (University) as required by the Election Laws and on the basis thereof, he could not be held to be a graduate and was liable to be disqualified as an elected candidate. The objection was earlier raised by respondent No,2 before the Returning Officer whereupon nomination papers of respondent No,1 were rejected on 3-12-2007. Aggrieved of the said order respondent No,1 filed Election Appeal No,15- R/2007 before the learned Election Tribunal Punjab, Lahore High Court, Lahore' which was allowed by the then learned Election Tribunal vide order, dated 7-12-2007 on the ground that the objection raised by respondent No,2 could appropriately be dealt with by filing an election petition under section 32 of the Representation of the Peoples Act, 1976 after the elections. Thereafter the petitioner as well as the private respondents contested the election and respondent No,1 has been elected as Member of the Provincial Assembly." The election was assailed by means of Election petition before the Election Tribunal comprising of a learned single Judge of the Lahore High Court, Lahore. After completion of necessary formalities and recording the evidence pro and contra, the
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appeal preferred on behalf of respondent has been accepted declaring, the election of appellant as void and directing fresh election in PP-III-Gujrat, hence this appeal. 3. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court entered appearance on behalf of appellant and urged with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention, which appears to be prime one, it is contended that the learned Election Tribunal has misinterpreted and misconstrued the provisions as enumerated section 99(cc) of the Representation of the People Act, 1976 (Act No,LXXXV of 1976) and Article 8-A of the Conduct of General Election Order, 2002 (Chief Executive's Order No,7 of 2002) which being identical, inter alia, provides that candidate for election to the National/Provincial Assembly should at least be a graduate possessing Bachelor's Degree in any discipline and it is never the mandatory requirement of law that such degree should be recognized by the Education Commission which aspect of the matter went unnoticed causing serious prejudice against the appellant. It is argued that University Grants Commission/Higher Education Commission has no role whatsoever concerning election and besides that no question of equivalence of the degree was involved hence the question of any opinion or advice from Higher Education Commission does not arise. It is submitted that two parts of section 99(cc) are clearly disjunctive and any interpretation by ignoring the two parts of section 99(cc) would not be in accordance with well- recognized principles of interpretation. It is also pointed out that the provisions as enumerated in section 99(cc) are penal in nature and therefore, in case of any doubt benefit should be given to the appellant. In this regard reference has been made to Abdul Sattar Lalika v. Saijad Ahmed and another (2003 MLD 459). It is next contended that the evidence of two witnesses produced on behalf of respondents before the learned Election Tribunal has not denied the issuance of degree in favour of appellant which could not be appreciated properly and moreso the relevant provisions of University of East, Hyderabad Act, 2004 (Sindh Act No,XI/2004) have been ignored. Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court in this context referred the provisions as enumerated in section 4(c) whereby the University has been authorized to award and confer degree's, diplomas and certificates and thus being a chartered University the statutory powers to grant a degree as conferred upon it neither could be enhanced nor reduced by the learned Election Tribunal. It is contended emphatically that the relevant record on the basis whereof degree was issued to the appellant was misplaced and damaged due to flood and heavy rains and the ground-floor of University of East submerged into water destroying the record room and the library and therefore, the relevant record could not be produced which aspect of the matter has not been considered properly by the learned Election Tribunal in spite of the fact that an intimation was given to the Director General, Higher Education Commission, Islamabad by the Vice-Chancellor of the University of East. It is argued that non-availability of record was not relevant as the degree of the appellant was attested by the Higher Education Commission. It is contended that the will of the electorate on the ground of eligibility of the elected representative cannot be overlooked without having cogent and concrete evidence which was never produced before the learned Election Tribunal. Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court also argued that non-appearance of appellant before the learned Election Tribunal would have no substantial bearing on merits of the case and the adverse inference as drawn by the learned Election Tribunal is not in accordance with law and well entrenched principles of natural justice. 4. Mr. Wasim Sajjad, learned Senior Advocate Supreme Court appeared on behalf of Mian Imran Masood (respondent No,1) and controverted the view point as canvassed at bar by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court for the appellant with the submission that no infirmity or illegality could be pointed out by the learned Sr. Advocate Supreme Court for the
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appellant justifying interference in the well based judgment of the learned Election Tribunal, Mr. Wasim Sajjad, learned Sr. Advocate Supreme Court has supported the judgment impugned for the reasons enumerated therein further submission that the degree possessed by the appellant cannot be considered lawful as it was never recognized by the Higher Education Commission and besides that the University of East was not competent to award such degrees being not a chartered University as is indicative from the correspondence made by the Higher Education Commission with Government of Sindh showing its un-satisfaction to the efficiency, competency, capability and capacity of the University. It is also pointed out that the objection qua validity of Bachelor's Degree was before the Returning Officer and nomination papers of appellant were rejected. ' However, he was allowed to contest election by the learned Election Tribunal by means of order date 17-12-2007 for the reason that such objection could have been dilated and decided by filing an Election petition under section 52 of the Representation of People Act, 1976 after the election. 5. The learned counsel on behalf of the parties have referred the following law and authorities in support of their esteemed views:-- (1) Article 8-A of the Conduct of General Elections Order, 2002. (2) Section 99(1)(cc) of the Representation of the People Act, 1976. (3) Election Laws (Amendment) Act, 2009. (4) University Grants Commission Act, 1974. (5) Section 10(1)(o) of the Higher Education Commission Ordinance, 2002. (6) University of East Act, 1999 (X1 of 2004). (7) Sanaullah Khan v. District Returning Officer (PLD 2005 SC 858). (8) Abdul Sattar Lalika v. Sajjad Ahmed (2003 MLD 459). (9) Muhammad Nasir Mahmood v. Federation of Pakistan (PLD 2009 SC 107). (10) Muhammad Yaqub v. Chairman, Election Tribunal, N.-W.F.P. (sic). (11) Samiuddin Qureshid v. Collector of Customs (PLD 1989 SC 335). (12) Samar Pervaiz v. Board of Intermediate and Secondary Education (PLD 1971 SC 838). 6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned. The pivotal question which needs determination would be the Academic qualifications for which the following issues have been framed by the learned Election Tribunal:-- "('1) Whether the election petition has not been verified in the manner laid down in the Code of Civil Procedure, 1908 as well as section 55(3) of the Act? OPR (2) Whether the petition in hand is not maintainable? OPR. (3) Whether the petition in hand is not within time? OPR (4) Whether the matter in question has been decided by the Supreme Court as well as Lahore High Court in the first round of litigation initiated by the respondent No,2, if so, then what is its effect? OPR (5) Whether degree of BBA of respondent No,1 issued by "University of East, Hyderabad, Pakistan is forged/fake and without relevant record? OPP (6) Whether the degree of BBA of respondent No,1 is not recognized by Higher Education Commission of Pakistan, if so, what is its effect? OPP (7) Whether respondent No,1 was not having due educational qualification on the nomination day, if so, what is its effect? OPP (8) Whether postal ballot papers cast in favour of petitioner have not been counted in his favour, and it requires re-counting ? OPP (9) Whether any malpractice has been committed by respondent No,1? OPP (10) Whether respondent No,1 is liable to be declared as disqualified for contesting election on the nomination day? OPP
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(11) Relief. " 7. In our view, issues Nos. 5, 6 and 7 clinch the controversy. We would, however, like to dilate upon the prime contention of Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court, at first instance, who argued with vehemence that the provisions as contained in section 99(cc) and Article 8-A of the Conduct of General Election Order, 2002 (Chief Executive Order No,7 of 2002) have misinterpreted and misconstrued. According to learned Senior Advocate Supreme Court on behalf of appellant the only mandatory prerequisite to contest such election as prescribed under law was that the candidate should at least be graduate possessing a "Bachelor's Degree" in any discipline and therefore, the question of its recognition by the Higher Education Commission does not arise. The relevant provisions of section 99(cc) of the Representation of the People Act, 1976 are reproduced herein below for ready reference:-- "99. Qualification and disqualification.---(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." ' The relevant provisions of Article 8-A of the Conduct of General Elections Order, 2002 are as follows:-- "8A. Educational qualification for a member of Majlis-e-Shoora (Parliament) and Provincial Assembly.---Notwithstanding anything contained in the Constitution of 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 discipline or 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." - 8. A bare reading of section 99(cc) would reveal that it has been couched in a very simple and plain language and thus no scholarly interpretation is called for. It is well-settled by now that "when the language of the statute is not only plain but admits of one meaning, the task of interpretation can hardly be said to arise. It is not allowable to interpret what has no need of interpretation. Such language best declare without more, the intention of the law givers, and is decisive of it. The rule of construction is "to intend the Legislature to have meant what they have actually expressed". It matters not, in such a case, what the consequences may be. Therefore, if the meaning of the language used in a statute is unambiguous and is in accord with justice and convenience, the Court cannot busy themselves with supposed intentions, however admirable the same may be, because, in that event they would be travelling beyond their province and legislating for themselves. But if the context of the provision itself shows that the meaning intended was somewhat less than the words plainly seem to mean then the Court must interpret that language in accordance with the indication of the intention of the Legislature so plainly given." (Abdul Hameed v. Municipal Committee PLD 1973 Lah. 339, Shah Jahan Begum v. Baloch PLD 1975 Lah. 390). We are conscious of the fact that "the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory. It is a corollary to the general rule of literal construction that nothing is to be added to or to be taken from a statute, unless there are -similar adequate grounds to justify the inference that the
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Legislature intended something which it omitted to express. If literal construction leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But, if no such alternative construction is possible the Court must adopt the ordinary rule of literal interpretation." Begum Shamsunnehar v. The Speaker, East Pakistan Provincial Assembly .PLD 1965 SC 120, Fazlul Quader Chowdhry v. Muhammad Abdul Hague PLD 1963 Sc 486, A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah. 227, Yusuf Ali v. Province of East Pakistan PLD 1958 Dacca 138. 9. On the touchstone of the criterion as mentioned herein above we, are not persuaded to agree with Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court that the only qualification to contest election is a Bachelor's Degree in any discipline as the said argument has been made in oblivion of the fact that the controversy does net revolve around equivalence and the real controversy to be set at naught would be as to whether Bachelor's Degree on the basis whereof election was contested is a fake/forged or it was ever issued or otherwise and recognized one by the Higher Education Commission. The provisions as enumerated in Article 8-A of the Conduct of General Elections Order, 2002 are not redundant and cannot be ignored. It may not be out of place to mention here that the question of recognition of a degree is equally important because the degree which is not recognized by the Higher Education Commission would be worthless like a piece of paper, cannot be equated to that of a "Degree" because every degree is subject to recognition which provides sanctity to a degree. (Muhammad Nasir Mahmood and another v. Federation of Pakistan through Secretary Ministry of Law Justice and Human Rights Division Islamabad, C.P. No,1 of 2008, Sana Ullah Khan v. District Returning Officer PLD 2005 SC 858, Maulana Abdullah v. Returning Officer and others 2003 SCMR 195, Munir Ahmed v. Returning Officer 2008 CLC 1111, Rao Tariq Mehmood v. Election Commission of Pakistan PLD 2003 Lah. 165). A "degree" which is not recognized by the Higher Education Commission cannot be declared as a valid "degree". 10. The words "Bachelor's Degree" as used in section 99(cc) would mean a degree which is valid one and recognized by the Higher Education Commission. The question of recognition does fall within the jurisdictional domain of Higher Education Commission. In our view validation of a degree depends upon its recognition. The Higher Education Commission would not be an alien entity in such like matters as argued by Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court because certain powers have been conferred upon it under section 10 of the Higher Education Commission Ordinance, 2002 which are reproduced herein below for ready reference:-- "(10) Power and functions of the commission.-(1) For the evaluation, improvement, and promotion of higher education, research and development. The Commission may- (b) cause evaluation of the performance of institutions; (d) prescribe conditions under which institutions, includihg those that are not part of the State educational system, may be opened and operated; (f) advise the Federal Government and the Provincial Government on proposals for granting a charter to award degrees in both public and private sector; (o) determine the equivalence and recognition of degrees, displomas and certificate awarded by Institutions within the country and aboard " 11. A bare reading of section 10(o) would make it abundant clear that the Commission may determine the equivalence and recognition of degrees, diplomas and certificates awarded not only by the institutions within the country but as well as the institutions functioning aboard. We are not impressed by the contention of Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court that Higher Education Commission has nothing to do with such matters for the simple reason that section 10(o) of the Higher Education Commission Ordinance, 2002 has been examined on various occasions and the contention as mentioned above was not considered at all and Commission was found competent to determine the equivalence and recognition of degrees and diplomas. In this regard reference can be made to case titled Sanaullah Khan v. District Returning
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Officer (PLD 2005 SC 858), relevant portion whereof is reproduced herein below for ready reference:- "04) The Act of 1974 row has been repealed by the Higher Education Commission Ordinance, 2002 (herein after referred to as "the Ordinance, 2002"). Its section 22 subsection (2) has provided safeguards to everything done or action taken under the repealed Act of 1974. As a result thereof, all the notifications referred to hereinhefore have been saved. Besides, section t0(o) or the Ordinance. 2002 confers functions upon the Commission to determine the equivalence and recognition of the degrees, diplomas and certificates, awarded by Institutions within the country and abroad. Thus, it is manifest that subject to passing examination of two additional subjects and newly-introduced subjects of Elective Pakistan Studies and Islamic Studies at the B.A. Level, "Sanad" of Shahadat-ul-Alamia obtained by the students from Wafaq/Tanzeem-ul-Madarris and individual institutions, duly recognized by the UGC could be used for employment purpose other than teaching and without passing examination at B.A. Level from a university in four subjects noted above, these "Sanads" if issued by recognized institution by UGC/HEC, could be used for teaching purposes and for Higher Education only. 15. It may also be noted that the prospectus of one of the recognized "Deeni Madaris" i,e, Jamia Ashrafia (Ashrafia. Islamic University,) Lahore indicates that the "Sanads" of Shahadat-ulAalia and Shahadat-ul-Aalimia have been shown to be equal degree of Graduation and Master whereas a degree can only be granted by a University established by the Government itself, thus, any degree granted by a private University, which is not recognized by the Government, is not acceptable. Reference in this behalf may be made to Azeezbasha v. Union of India (AIR 1938 SC 622). Relevant para therefrom reads as under thus:--- "(21) Before we do so we should like to say that the words "educational institutions" are of very wide import and would include a university also. This was not disputed on behalf of the Union of India and therefore it may be accepted that a religious minority had the right to establish a university under Article 30(1). The position with respect to the establishment of Universities before the Constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a university and it was therefore, open to a private individual or body to establish a university. There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institution is that a university grants decrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions. See St. David's College, Lampeter v. Ministry of Education, 1951-1 All ER 559. Thus in law in India there was no prohibition against establishment of universities by private individuals or bodies and if any university was so established it must of necessity be granting degrees before it could be called a university. But though such a university might be granting degrees it did not follow that the Government of the country was bound to recognize those degrees. As a matter of fact as the law stood up to the time the Constitution came into force, the Government was not bound to recognize degrees of universities established by private individuals or bodies and generally speaking the Government only recognized degrees of universities established by it by law. No private individual or body could before 1950 insist that the degrees of any university established by him or it must be recognized by Government. Such recognition depended upon the will of Government generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimized. This position continued even after the Constitution came into force. It only in 1956 that by subsection (1) of section 22 of the University Grants Commission Act (No,3 of 1956), it was laid down that--
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"the right of conferring or granting degrees shall be exercised only by University established or incorporated by or under a Central Act, a Provincial Act or a State Act or an institution deemed to be a University under section 3 or an institution specially empowered by an Act of Parliament to confer or grant degrees." ' Subjection (2) hereof further provided that:- "save as provided in subsection (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant any degree." ' Section 23 further prohibited the use of the word "university" by an educational institution unless it is established by law. It was only thereafter that no private individual or body could grant a degree in India. Therefore it was possible for the Muslim minority to establish a university before the Constitution came into force, though the degrees conferred by such a university were not bound to be recognized by Government." ' In view of above principle, it is held that a degree, if issued by an institution other than a recognized university by the Government is not acceptable. Reference may be made to section 4(c) of the University of the Punjab Act, 1973 for precedent." ' The above conclusion also finds support by the following judgments:- ' Muhammad Younas v. D.R.O. Writ Petition No, 14073 of 2005, Maulana Abdullah v. Returning Officer and others (2003 SCMR 195), Black's Law Dictionary 5th Edn., Government of Punjab v. Naila Begum (PLD 1987 Lah. 336), Oxford Dictionary, and Azeezbasha v. Union of India (AIR 1968 SC 662) 12. Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court on behalf of appellant has also argued that the learned Election Tribunal has misconstrued and misread the evidence which has come on record. In order to appreciate the above contention we have perused the entire evidence once again with the eminent…
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