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Petitioner: TANVIR ASHRAF VS Respondent: Ch. RIASAT ALI and 5 others
Court Name: Lahore High Court Judge(s): Syed Jamshed Ali, Chaudhry Ijaz Ahmed, M. Javed Buttar Title: TANVIR ASHRAF vs Ch. RIASAT ALI and 5 others Case No.: Intra-Court Appeal No, 828 of 2002 Date of Judgment:2003-07-09 Reported As: 2004 YLR 659 Result: Appeal allowed
JUDGMENT
JUDGMENT SYED JAMSHED ALI, J.---This appeal is directed against the judgment dated 4-11-2002 of the learned Single Judge, allowing Writ Petition No,17699 of 2002 filed by respondent No, 1. This appeal was dismissed vide judgment dated 25-2-2003, on the ground that it was hit by the bar of the proviso to section 3(2) of the Law Reforms Ordinance, 1972, and was thus, not maintainable. 2. The said judgment of this Court was assailed before the Honourable Supreme Court in Civil Petition No,432 of 2003 by the appellant, which was allowed vide order dated 15-4-2003, with a direction to this Court to decide the question involved afresh on merits in accordance with law. The relevant facts are noted hereunder. 3. The appellant herein was a candidate from Punjab Provincial Assembly Constituency No,112, Gujrat-V. In the absence of any objection, his nomination papers were accepted by the Returning Officer. On 25-9-2002 respondent No,1 filed the aforesaid writ petition with the grievance that the appellant was not a Graduate, hence disqualified to contest the election and his B.A. Result card was forged and fabricated document. The prayers made therein were-- "(i) A direction to the Station House Officer, Police Station, Muslim Town, Lahore for registering a case, to recover the forged and fabricated documents, arrest Tanvir Ashraf (appellant) alongwith his accomplices and whereafter the culprits may be brought to book. (ii) the University Authorities may be directed to report the forged and fabricated nature of Detailed Marks Certificate attached by the appellant reflecting that he had passed his B.A. First Annual Examination, 1980 from the University of the Punjab against Roll No,26154, to the Election Commission of Pakistan which may be directed to revoke the candidature of the appellant and to prevent him from contesting the Provincial Assembly Election from the said constituency;
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(iii) any other writ, relief or direction expedient in the interest of justice may also be issued in vindication of the grievances afore-referred." 4. During pendency of the said petition, the election was held on 10-10-2002 and the appellant was declared as a returned candidate. The writ petition came up for final hearing before the learned Single Judge on 28-10-2002. On the basis of the comments of University of the Punjab and examination of the original record relating to the roll number of the appellant (register No,28) the learned Single Judge found that the B.A. Result Card of the appellant was procured in a fraudulent manner to pose himself as a graduate to contest the election. Accordingly, it was held that the appellant was disqualified to file the nomination papers and the same shall be deemed to have been rejected, as he lacked the requisite qualification in terms of section 99(1)(cc) of the Representation of the People Act, 1976. Resultantly, the notification declaring the appellant as a returned candidate was also declared as of no legal, effect. 5. As far as the prayer of the writ petitioner/respondent No,1 for registration of a criminal case against the appellant is concerned, it was observed that the petitioner may approach the Controller of Examinations, University of the Punjab, Lahore in whose office the offence of fraud and forgery etc. Had been committed. 6. Learned counsel for the appellant contends that the learned Single Judge based the impugned conclusion solely on the parawise comments of the University of the Punjab, which were mala incorrect and grossly inadequate to establish any fraud or forgery in relation to the result card of the appellant. According to him vide order dated 7-10-2002, University of the Punjab was directed to file written statement while it had earlier filed comments on 5-10-2002 although the learned Single Judge had not so directed. He submits that in fact on 26-9-2002 a notice was issued to the appellant and on the same date a learned,Assistant Advocate-General asked the University of the Punjab to file parawise comments. He further submits that the appellant appeared in the First Annual B.A. Examination in 1980, he failed in the subject of Political Science, applied for re-checking of the said paper, and, meanwhile, appeared in the Second Annual B.A. Examination of 1980, in which he failed. However, as a result of rechecking, the petitioner was found to have passed in Political Science Paper in First B.A. Annual Examination of 1980 on the basis of which a notification signed by the Controller of Examinations and five other functionaries of the University of the Punjab was issued on 13-1-1993 while the result card was issued on 6-5-1999. He further submits that the position taken by University .Of the Punjab in parawise comments that the award list was bogus or that the Political Science Paper of the appellant was never re-checked , was not based on any material and these conclusions were reached ex parte, He contended that the assertion of the University of the Punjab in the comments that on re-checking of the University ,record it was found that Political Science Paper of the appellant was never re-checked, is a bald assertion. He submitted that on an application made by the appellant on 18-10-2002 before the Controller of Examinations of the Punjab University, for inspection of the rechecking record, it was reported that no such record exists. This application, alongwith report was filed by the appellant with the rejoinder to the parawise comments. He further submits that vide order dated 11-12-2002, this Court permitted inspection of the re-checking record but when the appellant went to the concerned office for the purpose he was informed that re-checking record prior to 1990 was not available. It is being contended that even according to the parawise comments submitted by University of the Punjab the existence of the award list and notification dated 13-1-1993 was not disputed. He maintains that it was not the case of University of the Punjab that the signatures of the functionaries on the said notification (including that of the Controller of Examinations) or on the result card were forged. It is next contended that in the parawise comments the position taken was that on examination of the re-checking record it was found that the Political Science Paper of the appellant was never re-checked while at the time of hearing of this Intra-Court Appeal there was a
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shift from this stand with the assertion that no order of the Controller of Examinations of University of the Punjab, in support of the notification dated 13-1-1993, was available on the record. Therefore, the result card was bogus. This stance is borne out by the admitting order of this Court dated 6-1- 2003 and is not disputed. The learned counsel for University of the Punjab had also conceded (as noted in the order dated 6-1-2003) that no formal inquiry was conducted before holding the said notification as bogus, therefore, the appellant was condemned unheard. 7. It is next contended that the questions whether the award list, notification dated 13-1-1993 and the result card dated 6-5-1999 were spurious documents, were disputed questions of fact requiring a detailed inquiry, which could not be undertaken in exercise of Constitutional jurisdiction. He further contended that the learned Single Judge misread the record and drew wrong conclusions. Reliance was placed on Najaf Abbas Sial v. Kh. Hassan Wali Khan, Additional District Judge/Returning Officer PP-83, Jhang 2003 CLC 1068 to contend that respondent No,1 had no locus standi in the matter. 8. It is further contended that the learned Single Judge granted two reliefs to the respondent No,1 i.e, that the appellant was disqualified and the notification declaring the appellant as a returned candidate was of no legal effect, were not even prayed for and, therefore, these could not have been granted, while relief for a direction for registration of a criminal case was declined. 9. Mr. Aitzaz Ahsan, Advocate represents respondent No,6, who is, in fact, supporting the appellant. He submits that the nomination of the appellant was not questioned either by any contesting candidate or by an elector. As an elector respondent No,1 had the remedy to file objections before the Returning Officer under section 14(1) of the Representation of the People Act (LXXXV) 1976, he had another remedy under section 14 (5-A) of the said Act to move the learned Election Tribunal which he did not avail and chose to collaterally impeach the nomination of the appellant which could not be done through a Constitutional petition. He further contended that, at the pre-election stage, as an elector, respondent No,1 had no locus standi in the matter and in support thereof relied on the judgment of this Bench of this Court in Najaf Abbas Sial (supra). He further maintains that in Writ Petition No,18373 of 2002, decided on 28-10-2002 the learned Single Judge, in another case, had declined interference on the petition of an elector, on the ground that disputed questions of fact were involved. Judgment in the case of Nawabzada Mir Balach Khan Marri v. Mir Mohabat Khan Marri and 4 others PLD 2003 Quetta 42, which involved the question whether the degree of the contesting candidate was genuine or not, was also relied upon. The said writ petition was grounded on certain documents supplied by University of the Punjab but the said learned Court declined to interfere on the ground that disputed question of fact was involved. He submits that election of the appellant was not challenged by any contesting candidate, and the writ petition filed by respondent No,1 was a surrogate petition. According to him, it lacked bona fides. He contended that there was an allegation of forgery against the appellant which was required to be proved by positive evidence which involved examination of the witnesses in presence of the appellant, their cross-examination, evidence in defence and before a proper forum which could not be done in Constitutional jurisdiction. 10. The next limb of his submission was that the decision even of an Administrative Tribunal must be based on positive evidence and not on surmises, conjectures or suspicion alone. Reliance was placed on Khan Muhammad Yusaf Khan Khattak v. S.M. Ayub and 2 others PLD 1973 SC 160, to contend that strict proof of disqualification of a returned candidate was required which was lacking in this case. His further submission is that presumption of regularity is attached to all official acts. Notification dated 13-1-1993 was duly pasted in Register No,28 and very strong evidence was required to displace it. He was also critical of reliance of the learned Single Judge on Muhammad Ramzan v. Deputy Commissioner, Attock and another PLD 1992 Lahore 322. According to him, the observations recorded in the said case were based on certain admitted facts and, therefore, it was
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not applicable. On the question whether the learned Single Judge could mould the relief granted to respondent No,1, his contention was that although it was within the competence of the learned Single Judge, yet if he intended to grant relief not prayed for by respondent No,1 in his petition, the appellant ought to have been put to notice. 11. Dr. Khalid Ranjha, Advocate, represents respondent No,1, the writ petitioner. He submits that respondent No,1 had approached this Court on 25-9-2002. The elections had not been held, during the pendency of the said petition, the appellant was declared as a returned candidate and, therefore, the Court could take notice of the subsequent events and would relief for which no notice was required to be given to the appellant. He submits that for maintaining such a petition i.e, prayer for registration of a case or a direction to University of the Punjab to report the matter to Election Commission to take action against the appellant/respondent No,1 had locus standi and as far as the question of qualification or disqualification of the appellant is concerned his position was that of a relater for which it was not necessary that respondent No,1 should have been an aggrieved person. 12. It is next contended that the repository of the knowledge, based on the record, in respect of a certificate or a degree of a candidate is the University of the Punjab and in view of their categorical stand that the Award List was manipulated and the notification dated 13-1-1993 had no basis was rightly accepted by the learned Single Judge who had also examined the original register and was satisfied with the conclusion reached by the Punjab University. He maintains that this Court, hearing this appeal, was exercising the same equitable jurisdiction and, therefore, findings of the learned Single Judge are not liable to interference as the question whether the conclusion of the learned Single Judge was supported by adequate material will be beyond the scope of this appeal. He further contended that in the written statement filed by the appellant he claimed that he had failed in B.A. Annual Examination, 1980, on his request his Political Science Paper was re-checked and he was found to have passed the B.A. Annual Examination, 1980. However, the appellant suppressed that he had appeared in B.A. Supplementary Examination, 1980 and had failed. It is next maintained that the conclusion of University of the Punjab as regards genuineness of the notification dated 13-1-1993 was not challenged by the appellant before any appropriate forum and, therefore, no collateral attack was permissible. On the question of notice and hearing of the appellant, reliance was placed on Mushtaq Ahmed v. University of the Punjab 2001 CLC 1631 to contend that it was not necessary it could not be said to be an inflexible rule because the question involved related to matter of record and the impugned conclusion of University of the Punjab was based on adequate material. He submits that it depends on the facts and circumstances of each case whether a detailed inquiry, by associating a person concerned, was required 'to be held and it was a case in which no such detailed inquiry was necessary. He further submits that even till date the degree has not been awarded to the appellant and the result card was of no consequence. He submits that if the degree had already been issued and it was sought to be withdrawn only then a notice to the appellant and a detailed inquiry was necessary. He also relied on the reasoning of the learned Single Judge contained in paras. 16 and 17 of the impugned judgment. 13. On the question whether relief could be granted by the learned Single Judge, although not specifically prayed for in the writ petition, he relied on prayer No,(iii) of the writ petition to submit that it was fully covered by the said prayer. 14. Dr. A. Basit, Advocate, represents the University of the Punjab. He submits that the appellant had been approaching the concerned office of the University. He was called upon to produce the original result card but it was not produced. He submits that the appellant will not be in a position to produce the original result card even before this Court. The learned counsel for the appellant, in response to the said challenge, not only produced a cyclostyled copy of the notification dated 13-1- 1993 (as the one pasted on the register) but also produced the original result card dated 6-5-1999.
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Copies thereof were retained on the record while the originals were returned to the appellant. He further submits that a domestic inquiry was held in the matter and there is a report of the Inquiry Officer (which was conducted by the Controller of Examinations). He made over to us a file but in the later part, during hearing, clarified that the inquiry file was the other file which could not be brought today but it is available in the office with Secrecy Branch. He further contends that as far as University of the Punjab is concerned, its view regarding the result card and notification - dated 13-1-1993 was not tentative, it was absolute and final. He further submits that in fact the result card is of no value unless B.A. Degree was issued. He, however, conceded that on the basis of result card, the appellant could be considered to be a graduate. 15. So far as notice to the appellant and affording him an opportunity of hearing is concerned, his submission was that it was not practicable in all cases because a number of complaints are being received daily in University of the Punjab against genuineness of the degrees. The procedure, he explained, was that a preliminary inquiry is held in the first instance in which the concerned party is not required to be heard. It is a fact-finding inquiry and if on the basis of the said inquiry it is decided to take further action in the matter then it is referred to the Disciplinary Committee for holding a detailed inquiry by associating the party concerned. According to him, since the award list was forged, no further inquiry in the matter was considered necessary and in this case it was considered sufficient to correct the record of University of the Punjab. He also explained as to when a criminal case is registered by University of the Punjab or disciplinary proceedings are taken. He further submits that the result card, unless followed by the degree was of no legal efficacy and since it was a forged document, it was not even required to be formally cancelled. 16. We have heard the learned counsel for the parties and have penned the record including original Register No,28. 17. The two important questions required to be considered and decided are whether the adverse conclusion reached by University of the Punjab, as affirmed by the learned Single Judge, was backed by tangible material and whether an ex parte report or finding could be a basis to de-seat the appellant. The other questions arising in this case are whether the writ jurisdiction could be competently invoked; the locus standi of the writ petitioner and the relief granted which was not specifically prayed by respondent No, 1. We will like to enter a caveat. We are not determining or called upon to determine whether the award list, the notification dated 13-1-1993 and the result card are genuine documents. The controversy involved is whether there was sufficient tangible material before the University Authorities to declare that the documents relied upon by the appellant were forged. Therefore, any observation made by us in this judgment is to be understood in the context of the said controversy 18. Register No,28 relates to B.A. Annual Examination, 1980. This register contains original award list with 40 marks in the paper of Political Science. It refers to B.A./B.Sc. Examination, 1980, Roll No,26154 and also contains entry dated 20-3-1981 "Award prepared from the scripts" The identity of the person recording this note is not discernible. However, below the aforesaid entry there are signatures in red-ink of an official. In the bottom of this document it is shown that Roll No,26154 had passed. It is signed by, another functionary and it is dated 20-3-1981. This document, prima facie, establishes that the appellant had applied for re-checking of his Political Science Paper. The second document pasted on this register is a cyclostyled copy of notification dated 13-1-1993 in which name of the appellant and his Roll Number i.e, 26154 has been mentioned and he has been shown to have passed the B.A. Annual Examination, 1980. This notification was in supersession of the earlier notification dated 29-1-1981. The date below the signatures of Controller of Examinations, University of the Punjab, is not clearly legible but the date typed on this notification is 13th January, 1993. Apart from Controller of Examinations, this notification was also signed by the Deputy Controller of Examinations-I Assistant Controller (Exams-II) and the Admin. Officer (Exams-II). We
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have noted that on this notification apart from the signatures of four responsible officials, there is also an endorsement signed by two officials, one who had prepared it and the other who had checked it. This notification is, prima facie, supported by the award list. The original Detailed Marks Certificate produced before us today also shows that it relates to Roll No,26154. The award list and the notification dated 13-1-1993 are official documents duly found to exist on the original record, The presumption of regularity was attached to these documents and as rightly contended by the learned counsel (for the appellant) very strong evidence, or at least tangible reliable material, was required to condemn the aforesaid documents. It may also be noted that the third document pasted on the register is a copy of the report and parawise comments submitted in Writ Petition No,17699 of 2002 on behalf of the University of the Punjab. It has so been pasted that Roll No, in the notification dated 13-1-1993 has almost been fully covered. 19. It is not the case of the University of the Punjab that the award list pasted on the register or the notification dated 13-1-1993 bear forged signatures of the concerned officials. The case of University of the Punjab was that the entry of marks in Political Science were changed on the result sheet on the register in relation to B.A. Annual Examination, 1980. It is also not their case that during the inquiry, statedly conducted by the Controller of Examinations, any of the functionaries of University of the Punjab, whose signatures appear on the aforesaid two documents was examined and he had disowned his signatures. This re-checking record was not produced before this Court although it was so claimed in the parawise comments. Another reason to say that the award list or the notification were bogus was that had the appellant passed in B.A. Annual Examination, he would not have appeared in the B.A. Supplementary Examination. This is not acceptable because the award list pasted on this register shows that the first note was recorded on 20-3-1981 after the 1980 Supplementary Examination, which was held after three months of the Annual Examination as held by the learned Single Judge. The notification dated 13-1-1993 was issued after about 12 years of the examination. The learned counsel for the appellant, invited our attention to the similar notifications of alteration of results of B.A. Examinations (Annexs-R-2 to R-11 with the rejoinder submitted by the appellant to the parawise comments of the University of the Punjab). Perusal of these notifications presents interesting and intriguing picture. One document relates to Annual Examination held in 1969, while notification altering the result, was issued on 2Z-8-2002 i.e, 33 years after the examination. Likewise other notifications show that results were altered after a period ranging between 8 to 32 years. Therefore, the delay in issuing notification after 12 years of the examination could hardly establish the allegation of forgery. The award list pasted on the register shows that the official concerned had recorded first note thereon on 20-3-1981. It was signed by other functionaries on the same day, nevertheless the University of the Punjab took more than 12 years to issue the revised notification dated 13-1-1993. For this delay neither the appellant could be blamed nor any adverse conclusion drawn against him. 20. It may also be noted that during hearing of this appeal, as noted in the admitting order dated 6-1-2003, the learned counsel for University of the Punjab had contended that the notification did not have the backing of an order passed by the Controller of Examinations. We may observe that in fact the notification dated 13-1-1993 was signed by the Controller of Examinations, which amounted to his approval. Further, on this register, we found that in a few cases similar was the situation that the notification of alteration of the result was not backed by any separate order of the Controller of Examinations. 21. Undoubtedly while holding award list and notification dated 13-1-1993 as bogus, no formal inquiry in the matter was conducted and this was conceded by the learned counsel for University of the Punjab and also that whatever exercise was done by University of the Punjab, the appellant was not associated with it. If according to the learned counsel for the University of the Punjab there is no practice of hearing the concerned candidate in a preliminary inquiry, which is fact-finding
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inquiry, the conclusions arrived at, cannot be said to be "absolute" and "final" as contended by the learned counsel for the University of the…
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