2008 PLP 738 (CLC)

This order shall decide Writ Petition No.2152 of 2008 and Writ Petition No.2157 of 2008 as some common questions are involved.

2. Writ Petition No.2152 of 2008 has been filed by the petitioner who is stated to be an Advocate and a voter in NA-68 Sargodha. He has stated that the respondent No.5 who has been returned as a Member from the said constituency was not qualified to contest the said election as he did not possess the requisite educational qualifications and the Sanad relied upon by him is bogus, apart from being not meeting the criteria laid down by the Higher Education Commission of Pakistan.

3. Writ Petition No.2157 of 2008 has been filed by voter in PP-68 Faisalabad to question the election of respondent No.1 who has been declared returned from the said constituency. According to this petition, the B.A. Degree is bogus and so is the case-with the Intermediate as well as the Secondary School Certificates.

4. A common feature of these two writ petitions is that it is admitted at the bar that all the material appended with Writ Petition No.2152 of 2008 was supplied to the petitioner therein by Masood Iqbal Gondal a defeated candidate who has himself filed Writ Petition No.254 of 2008 which is pending in this Court. In the matter of Writ Petition No.2157 of 2008 the said material has been provided by Faizullah Kamoka a defeated candidate who is contemplating to file an election petition.

5. It is by now well-settled that although a person having information need not at all be aggrieved person yet this Court is not to issue particularly a writ of quo warranto as a matter of course and the bona fide of a relator can be tested. One of the grounds recognized for refusing issuance of such a writ that the relator is acting as an instrument of someone else. We deem it proper to reproduce here the following excerpt from the judgment of the Honourable. Supreme Court of Pakistan in the case Dr. Kamal Hussain and 7 others v. Muhammad Sirajul Islam and ,others PLD 1969 SC 42 at pages 51 and 52 of the report: "Under Article 98(2)(b) "any person and not necessarily an aggrieved person can seek redress from the High Court against the usurpation of a public office by a person who is allegedly holding it without lawful authority". On that account it cannot be doubted that Mr. Siraj-ul-Islam did have the locus standi to file the petition. But the grant of relief in writ jurisdiction is a matter of discretion, wherein it is quite legitimate on the part of the High Court to test the bona fides of the relator to see if he has come with clean hands. A writ of quo warranto in particular is not to issue as a matter of course on sheer technicalities on a doctrinair approach. In the present case, considering all the circumstances I cannot escape the feeling that Mr. Siraj-ul-Islam is not entirely playing his own game, for high altruistic motives, and that he has instituted the writ petition not so much for the vindication of any public right or the redress of a public wrong as to redeem the discomfiture of the defeated candidates, and to fight their battle on another front which some of them had already waged by the process of the election petitions within its limitations." We may further note here that the said judgment was quoted with approval and relied upon in the case of Muhammad Liaquat Munir Rao v. Shams-ud-Din and others 2004 PLC (C.S.) 1328 and Federation of Pakistan v. Haji Muhammad Saifullah Khan and others PLD 1989 SC

166. Although the above quoted observations were made in a case pertaining to elections of East Pakistan Bar Council yet keeping in view the circumstances of these cases apparent upon bare reading of the contents of the writ petitions, the same are aptly applicable. Both the writ petitions are accordingly dismissed in limine. H.B.T./M-23/L Petitions dismissed.