2006 PLP 124 (MLD)

ANWAR ZAHEER JAMALI, J.

By invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner Syed Ghulam Rasool Shah has challenged the order dated 16-9-2005 passed by respondent No.2, rejecting his nomination form, and the order dated 20-9-2005 passed by respondent No. 1, whereby his election appeal was also dismissed.

2. The relevant facts of the case are that the petitioner has filed his nomination form for the, seat of Taluka Nazim Umerkot, District Umerkot, in the ensuing Local Bodies Election, 2005, wherein respondents Nos.3 to 7 have also filed their respective nomination forms for the same seat.

3. On 15-9-2005, the respondent No.3 filed objection to the nomination form of the petitioner, wherein he challenged the authenticity of the matriculation certificate filed by the petitioner, being false and managed one.

4. During the proceedings of scrutiny, as contemplated under rule 14 of the Sindh Local Government Elections Rules, 2005 (hereinafter referred to as Elections Rules), at the request of respondent No.3, on 15-9-2005 the respondent No.2 sent the copy of matriculation pass certificate submitted by the petitioner with his nomination form, to the Controller of Examinations, Board of Intermediate and Secondary Education Hyderabad (hereinafter referred to as the Controller) for its verification. According to the petitioner the authenticity of his pass certificate was confirmed by the Controller on the same day, but on the next day, again the respondent No.2 sent copy of his pacca pass certificate to the Controller for verification and this time the report received from the Controller revealed that the said certificate of the petitioner pertaining to S.S.C.. Part II, Annual Examination 1998 under Seat No. 187210 was bogus. The pass certificate of the petitioner referred by the respondent No.2 was also returned duly certified by the Controller under his signatures and seal, as bogus.

5. In the light of such report/verification, respondent No.2/Returning Officer Umerkot sustained the objection of respondent No.3 and consequently the nomination Form of the petitioner was rejected with the following observations:-- "The photostat copy of the pass Certificate of Syed Ghulam Rasool Shah, produced by him along with his nomination papers was sent to concerned authorities for verification through Fax on 15-9-2005 which was found genuine by the Controller of Examination BISE Hyderabad. The candidate was also directed to produce the PACCA Certificate of Matric and copy thereof was also sent to concerned authorities for verification. The PACCA Certificate has been found bogus by Controller of Examination BISE Hyderabad vide its letter No.BISE/SECRET/PC/1360, dated 16-9-2005. In view of the letter issued by the Controller BISE Hyderabad whereby he has found the PACCA Certificate of the candidate as bogus, the candidate does not qualify for the seat of Nazim as required by subsection (e) of section 152 of the Sindh Local Government Ordinance, 2001. Hence his Nomination Form is rejected".

6. The petitioner being aggrieved by the above order preferred Election Appeal No.6 of 2005 under rule 14(4) of Sindh Local Government Ordinance, 2001 (hereinafter referred to as the Ordinance of 2001) wherein he took the plea that not only he had passed matriculation examination as per his pass certificate produced before the respondent No.2 but he had also passed H.S.C. Part-II (intermediate) examination and thereafter sought admission in B.A.

7. This appeal was heard by the respondent No. l /District Returning Officer, who, in order to re-verify the authenticity of the matriculation pass certificate produced by the petitioner also summoned the Controller. The Controller, on his appearance before the respondent No.1 on 19-9-2005 filed statement in writing, mentioning therein the following reasons for holding the matriculation pass certificate of the petitioner as bogus: "The pass certificate of SSC-II, Annual Examination 2005 issued in favour of Syed Ghulam Rasool Shah is being declared as bogus for the reasons enumerated below: (a) There is no examination form available on the record bearing seat No. 187210. (b) The number of pacca certificate issued to the candidate is not mentioned in the ledger. (c) The list of pacca certificate issued to Headmaster Government High School Tando Jan Muhammad does not include the seat No. 187210. (d) The name of candidate is added belatedly as it is hand written otherwise all other entries are computerized."

8. The respondent No.1, after taking into consideration all the relevant factual aspects of the case dismissed the appeal with the following observations:

"I have given careful consideration to the submission of parties counsel and considered the report of Controller, who himself appeared before me and has certified the contents of report to be true and correct. In view of report of the Controller the very matriculation certificate produced by appellant in proof of his academic qualification is bogus. When the very structure i.e. matriculation certificate on the basis of which appellant claimed his High Secondary School Certificate to be genuine, then the whole building collapse. The contention of learned counsel for the appellant that his matriculation pass certificate was reported genuine, therefore, he has proved his academic qualification to be matriculate is not convening in view of the report of Controller of Examination, who has certified his report to be correct and genuine and declare the matriculation certificate bogus. From the record it is clear that very certificate of matriculation is declared by the competent authority as bogus, therefore, the case of appellant is hit by section 152(e) of Sindh Local Government Ordinance 2001, therefore, order of Returning Officer does not require any interference, as such appeal is dismissed. "

9. Aggrieved by the above referred two orders passed by respondents Nos.1 and 2, the petitioner has now preferred this constitutional petition praying therein for the following reliefs. (A) Declare that petitioner is qualified to contest for the seat Taluka Nazim Umerkot as his matriculation certificate is valid and liable to be accepted. (B) Declare that both the impugned orders dated 16-9-2005 and 20-9-2005 passed by respondents Nos.2 and 1 respectively are illegal, ultra vires, ab initio void and having no legal effect. (C) Direct the respondent No.2 to accept the Nomination form of the petitioner and allow the petitioner to contest in the election proceedings. (D) Any other relief which this Hon'ble Court may deem fit and proper. (E) Cost of the petition.

10. On 26-9-2005, when this petition came up for hearing before the Court, pre-admission notice was issued to the respondents for today i.e. 27-9-2005, with further directions to the Controller to be present in Court along with all the relevant record relating to the student who has allegedly appeared in S.S.C. Part-II Amoral Examination in the year 1998 under Seat No. 187210.

11. Today, as noted above, the Controller has appeared before the Court and, inter alia, placed on record copy of Result Gazette of S.S.C. Part-II, Annual Examination 1998, containing the seat numbers of all the candidates who have cleared their matriculation examination in the Annual Examination year 1998, but the seat number 187210 claimed by the petitioner as his seat number is not available in such Result Gazette. This Result Gazette is also accompanied with two relevant ledgers mentioning therein only the name of the petitioner in the handwriting of someone. With reference to some letter No.4120 dated 24-10 (probably year 1998), though the names of all other candidates are appearing in these ledgers with computerized process. The Controller has reiterated that such entry in the ledger is nothing, but tampering with the official record of the Board, which fact is also verified and confirmed from other relevant record available with the Board.

12. Mr. Raja Qureshi, learned counsel for the petitioner has referred before us Rules 14 and 71 of Election Rules and strongly contended that the scope of scrutiny, contemplated under rule 14 of the Election Rules, in only summary in nature where a detailed inquiry cannot be held as to the genuineness or otherwise of the matriculation pass certificate of the petitioner. In such circumstances, the proper course available to the respondents Nos.1 and 2 was that on the basis of copy of matriculation pass certificate produced by the petitioner they should have turned down the objection raised by the respondent No.3 and accepted his Nomination Form, leaving it open for any other contesting candidate for the same office, to take up such grounds by way of election petition under section 65 of the Elections Rules, where a detailed procedure prescribed under rule 71 could have been followed to determine the genuineness or otherwise of such matriculation pass certificate of the petitioner. He further contended that respondent Nos.1 and 2 while passing the impugned orders against the petitioner have totally failed to take into consideration the documents relating to passing of Intermediate Examination by the petitioner and the copy of his Admit Card showing his appearance in B.A. Part-I Annual Examination for the year 2004 from the University of Sindh, along with pass certificate dated 5-9-2005.

13. In reply to the arguments of Mr. Raja Qureshi, Mr. Jhamat Jethanand, learned counsel for the respondent No.3 has made reference to the official Result Gazette of the Board of Intermediate and Secondary Education Hyderabad containing the seat number of all the successful candidates who had appeared in S.S.C. Part-II Annual Examination in the year 1998, to show that the seat number of the petitioner under which he has allegedly passed his S.S.C. Part-II Annual Examination does not appear in such authentic official record of the Board. He further made reference to the certificate dated 17-9-2005 issued by the Headmaster H.K. Government High School, Tando Jan Muhammad, District Mirpurkhas, certifying the fact that the petitioner has not appeared in S.S.C. Part-II Annual Examination 1998 (General Group) from their school centre, as shown in pacca pass 'certificate produced by the petitioner. He further placed on record photocopy of Nomination Form of the petitioner, and made reference to its Column to show that at the time of filing of his nomination Form, the petitioner has himself disclosed his educational qualification as matriculate. He contended that it is unconceivable that a person who has allegedly already passed his B.A. Part I Examination will show his educational qualification in his Nomination Form as only matriculate. He further contended that this Court while exercising its jurisdiction under Article 199 of the Constitution will not be justified in taking into consideration the documents/material which was not produced by the petitioner before respondent No.2 at the time of scrutiny of his Nomination Form, and which might have also been fabricated now to meet -the unforeseen situation arising out of the objection raised by respondent No.3, as to the educational qualification of the petitioner. He also made comparison to the signatures of the petitioner on his nomination Form and his Admit Card of B.A. Part-I Examination under Seat No.3860, purportedly issued by the University of Sindh, to show that the petitioner has been managing the things for obtaining forged and fabricated certificates/documents, which fact is evident from the glaring difference in his alleged signatures over his Admit Card and the Nomination Form. He lastly contended that once ample material has come on record to show that matriculation pass certificate produced by the petitioner was forged, fabricated and managed document, and that he is not a matriculate, the claim of the petitioner as regards his alleged other higher education qualification, which even otherwise was not disclosed by him in his Nomination Form, will fall to the ground automatically, and cannot be looked into at this stage.

14. Mr. Masood A. Noorani Addl. A.-G. Sindh at Hyderabad has supported the two impugned orders passed by respondents Nos.1 and

2. He also contended that the inquiry held by respondent No.2 under rule 14 of the Elections Rules was justified so also the conclusion recorded by the respondents Nos.1 and 2, which calls for no interference from this Court in exercise of its constitutional jurisdiction.

15. We have carefully considered the arguments advanced by the learned counsel and minutely examined the material placed on record by the petitioner along with his petition, other documents which have come on record from the side of respondent No.3 and the material placed on record by the Controller in compliance of the order dated 26-9-2005. It is significant to note that in his Nomination Form, the petitioner has himself disclosed his educational qualification as matriculate. In this regard when we have asked the learned counsel for the petitioner that if the petitioner has also passed his (intermediate) and B.A. Part-I Examination then why in his Nomination Form he has disclosed his educational qualification only as matriculate and has also not filed such documents before the respondent No.2, even after objection of respondent No.3. No plausible explanation has been offered by Mr. Raja Qureshi in this regard. Admittedly, to justify his claim that he was holding the minimum educational qualification as provided under section 152(i)(e) of the Ordinance, 2001, the petitioner has only placed on record before the respondent No.2 his pass certificate which was sent to the Controller for its verification and strangely in the first instance its confirmation was received vide letter dated 15-9-2005, as correct. Again verification was sought by the respondent No.2 on 16-9-2005, with reference to the photostat copy of pacca pass certificate produced by the petitioner, and this time the Controller has clearly informed the respondent No.2 that such pass certificate of the petitioner under seat No. 187210 was bogus. To further confirm this position, the Controller had also put his signatures and seal over the photostat copy of pacca certificate sent to him by the respondent No.2, certifying that it was a bogus document. In such circumstances, the enquiry held by the respondent No.2 was not only within the parameters of "scrutiny" of nomination Form as contemplated under rule 14 of the Elections Rules, but the conclusion recorded by him in its order dated 16-9-2005 was also justified.

16. The District Returning Officer in his impugned order dated 20-9-2005 has also explicitly discussed the report of the Controller, who had himself appeared before him to confirm and certify that the pass certificate produced by the petitioner regarding passing of his S.S.C. Part-II Annual Examination in the year 1998 under Seat No.187210 was bogus, for various cogent reasons, noted down at page No.2 of the impugned order. The Controller present before us has reiterated the same facts, and in addition to that he has also placed on record the two original ledgers confirming the fact that entry' of all the candidates appearing in S.S.C. Part-II Annual Examination for the year 1998 were printed on the ledger book through electronic process (computerized) while only the name of present petitioner was handwritten, without any authenticity. In addition to it the Controller has also filed copy of relevant page of Result Gazette of Secondary School Certificate Part-11 Annual Examination 1998, published by the Board, to show that no B student under Role No.187210, as alleged by the petitioner, has cleared such examination. He has also placed on record photostat copy of page No.9260 from an other Register containing the serial, seat and certificate number of all students of Government (P) Boys High School Tando Jan Muhammad, who have appeared in the S.S.C. Part-II Annual Examination 1998 from that Centre, but neither the Seat Number 187210 claimed by the petitioner is available in it nor the certificate number. Such version of the Controller also finds support from the certificate dated 17-9-2005 issued by the Headmaster Government High School Tando Jan Muhammad, which shows that the petitioner has not appeared in the S.S.C. Part-II Annual Examinations 1998 (General Group) from the said school at Tando Jan Muhammad Centre. In the above facts and circumstances when overwhelming documentary evidence has come on record from various independent sources to show that the claim of the petitioner that at the time of filing his Nomination Form he was matriculate is ill-founded, in our view, there seems to be no valid justification for us to exercise out constitutional jurisdiction under Article 199 of the Constitution to upset such concurrent findings of facts recorded by the respondents Nos.1 and 2, which are based on proper appreciation of relevant record.

17. The submission of Mr. Raja Qureshi that the petitioner may not be non-suited from contesting the election of Taluka Nazim, at this stage, on the allegations of being non-matric and on the basis of holding of summary inquiry under Rule 14 of the Elections Rules, having limited scope, but such controversy shall be left open to be adjudged in post election scenario, through election petition by the aggrieved party in terms of rule 65 of the Elections Rules, which would provide full-fledged opportunity of inquiry into this controversy in terms of the procedure prescribed under rule 71 of the Elections Rules, sounds good, but in the facts and circumstances of the present case as discussed above, such submission is neither legally nor factually tenable.

18. A plain reading of rules 14 and 71 of the Election Rules makes it palpably clear that the two rules are quite independent and different in nature and have been framed by the lawmakers, to deal and operate in different situations. Rule 14 of the Elections Rules deals with the scrutiny of nomination papers of the candidates during pre-election process, and empowers the Returning Officer to either suo motu or upon any objection, conduct such summary inquiry as he may think fit to satisfy himself for rejection or otherwise of the nomination papers of any candidate, on any of the grounds enumerated in sub-rule3(i) to (iv), while sub-rule 4 of rule 14 provides remedy of appeal, before the Appellate Authority appointed by the Chief Election Commissioner, to challenge the decision of Returning Officer, rejecting or accepting the nomination papers of any candidate, and attaches finality to such order of the Appellate Authority. It is pertinent to mention that the scope of summary inquiry under rule 14 is neither subject to any specific procedural rigors nor it is restricted to any bounds, rather it has been left open at the discretion of Returning Officer, for his satisfaction. It is therefore, obvious that in the process of holding summary inquiry the Returning Officer can undertake any steps to satisfy himself before taking his decision as to the acceptance or rejection of any nomination papers.

19. On the other hand rule 71 of the Elections Rules relates to the procedure which is to be followed by the Election Tribunals while dealing with the election petitions filed before it in terms of rule 65 of E the Elections Rules. It provides that the Tribunal while dealing with the election petitions would follow, as nearly as possible, the same procedure as provided in the Code of Civil Procedure 1908 for the Civil Courts dealing with the suits. Proviso "a" to "e" of sub-rule 1 of rule 71 also relates to the proceedings before the Election Tribunals, while sub-rules (2) to (4) elaborate the powers of Election Tribunals regarding recording of evidence, applicability of the provisions of Qanun-e-Shahadat Order, 1984, subject to the provisions of the Order and the rules, and powers of the Election Tribunals to allow amendment in the petitions for ensuring fair and effective trial of the petitions for determining the real question in controversy.

20. When the above referred two rules are placed in juxa-position it will be seen that neither the same are overlapping nor have any nexus to each other. It, therefore, follows that the findings of facts recorded by the Returning Officer upon holding of summary inquiry under rule 14 has its own significance and it cannot be brushed aside only for the reason that same plea/objection can also be raised through Election petition, where a detailed inquiry can be held by the Election Tribunals by following the procedure prescribed under rule 71 of the Election Rules.

21. On facts, when not only the respondents Nos. 1 and 2 have taken full care in verification of the alleged matriculation pass certificate of the petitioner and concurrently found it to be forged, managed and fabricated, but we have also summoned the Controller to re-verify this position and found that the plea of the petitioner that he has passed his S.S.C. Part-II Annual Examination in the year 1998 from the Board of Intermediate and Secondary Education Hyderabad under Seat No. 187210 is ill-founded and the documents produced by him in this regard have also been found to be bogus, no case for upsetting the findings of respondents Nos.1 and 2 on the pretext of providing further opportunity of detailed inquiry by way of election petition and proceedings under rule 71 is made out.

22. Looking to the recent trend of litigation, where people are not much afraid and bothered in managing forged and fabricated documents/record to achieve their goals, which has made it incumbent for the Courts to take much more care and caution, and sticking to the claim of the petitioner in his nomination Form that he is matriculate, we are also not inclined to take into consideration, at this belated stage, the plea of the petitioner that he has also passed H.S.C. Part-II (Intermediate) Annual Examination or B.A. Part-I Examination, which seems to be an afterthought.

23. We are also in agreement with the submission of Mr. Jhamat Jethanand that an educated person, if holding educational qualification of passing B.A. Part-I examination, would not mention his educational G qualification in column of the Nomination Form as only matriculate. Such contradictory stand taken by the petitioner, looking to other salient features of this case, also disentitle him from grant of any equitable and discretionary relief from this Court in exercise of its constitutional jurisdiction under Article 199 of the Constitution.

24. Foregoing are the reasons of our short order, whereby this petition was dismissed today in limine. M.A.W./G-66/K Petition dismissed.